PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

Nos. 16-4397, 16-4410, 16-4411,

16-4427, 17-1346

_____________

UNITED STATES OF AMERICA

Appellant in 17-1346

v.

CHAKA FATTAH, SR.,

Appellant in 16-4397

KAREN NICHOLAS,

Appellant in 16-4410

ROBERT BRAND,

Appellant in 16-4411

HERBERT VEDERMAN,

Appellant in 16-4427

_____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

District Court Nos. 2-15-cr-00346-001,
2

2-15-cr-00346-002, 2-15-cr-00346-003,

2-15-cr-00346-004

District Judge: The Honorable Harvey Bartle III

Argued January 18, 2018

Before: SMITH, Chief Judge, GREENAWAY, JR., and

KRAUSE, Circuit Judges

(Filed: January 16, 2019)

Andrea G. Foulkes

Eric L. Gibson

Paul L. Gray

Robert A. Zauzmer

Office of United States Attorney

615 Chestnut Street

Suite 1250

Philadelphia, PA 19106

Jonathan Ian Kravis [ARGUED]

United States Department of Justice

Criminal Division, Public Integrity Section

1400 New York Avenue, N.W.

Washington, DC 20005

Counsel for the United States

Mark M. Lee

Bruce P. Merenstein [ARGUED]

Samuel W. Silver
3

Schnader Harrison Segal & Lewis

1600 Market Street

Suite 3600

Philadelphia, PA 19103

Counsel for Appellant Fattah

Ann C. Flannery [ARGUED]

Suite 2700

1835 Market Street

Philadelphia, PA 19103

Lisa A. Mathewson

Suite 810

123 South Broad Street

Philadelphia, PA 19109

Counsel for Appellant Nicholas

Alan Silber

Pashman Stein Walder Hayden

21 Main Street

Suite 200

Hackensack, NJ 07601

Counsel for National Association of Criminal

Defense Lawyers, Amicus Appellant Nicholas

Mira E. Baylson

Barry Gross [ARGUED]

Meredith C. Slawe

Drinker Biddle & Reath

One Logan Square
4

Suite 2000

Philadelphia, PA 19103

Counsel for Appellant Brand

Henry W. Asbill

Buckley Sandler

1250 24th Street, N.W.

Suite 700

Washington, DC 20037

Glen D. Nager [ARGUED]

Jacob M. Roth

Julia W. M. F. Sheketoff

Jones Day

51 Louisiana Avenue, N.W.

Washington, DC 20001

Counsel for Appellant Vederman

________________

OPINION

________________

SMITH, Chief Judge.
5

Table of Contents

I. Introduction ...................................................................8

II. Background..................................................................9

A. The Fattah for Mayor Scheme .................................9

1. The Lord Loan and Its Repayment .....................10

2. The College Tuition Component of the FFM 

Scheme................................................................27

3. The NOAA Grant and the Phantom Conference 28

B. The Blue Guardians Scheme..................................31

C. The Fattah–Vederman Bribery Scheme.................33

D. The Indictment and Trial .......................................39

III. Juror Misconduct and Dismissal of Juror 12 ...........58

A. Investigation of Alleged Juror Misconduct...........58

B. Dismissal of Juror 12 .............................................64

IV. The District Court’s Instructions Under McDonnell70

A. The McDonnell Framework...................................71

B. The Kirk Meeting...................................................76

C. Fattah’s Efforts to Secure Vederman an 

Ambassadorship..........................................................79

D. The Zionts Hiring ..................................................82

E. Vederman’s Sufficiency Challenge to Counts 16–18 

and 22–23....................................................................89

F. Blue Guardians.......................................................91
6

V. Sufficiency of the Evidence for the RICO Conspiracy 

Conviction ......................................................................95

VI. Variance from the Indictment and Sufficiency of the 

Evidence for Count 2....................................................110

VII. The District Court’s Instruction to the Jury on the 

Meaning of Intent .........................................................120

VIII. Sending the Indictment to the Jury......................126

IX. The District Court’s Evidentiary Rulings..............129

A. The District Court’s Application of Rule 404(b) 129

B. Evidentiary Rulings Regarding Nicholas’s 

Defense .....................................................................134

1. The EAA Board Minutes..................................134

2. Jones’ Memory Regarding Other Contracts.....136

3. Exclusion of NOAA Evidence..........................137

C. The Cooperating Witness’s Mental Health 

Records.....................................................................138

1. The District Court’s Denial of Access to the 

Mental Health Records.....................................140

2. The District Court’s Grant of the Motion in 

Limine...............................................................142

X. The Government’s Cross-Appeal............................147

A. CUMA is a Mortgage Lending Business.............148

B. Sufficiency of the Evidence.................................155

XI. Prejudicial Spillover...............................................158

A. Fattah’s Claim of Prejudicial Spillover...............159
7

B. Vederman’s Assertion of Prejudicial Spillover...160

XII. Conclusion ............................................................164
8

I. Introduction

Chaka Fattah, Sr., a powerful and prominent fixture 

in Philadelphia politics, financially overextended himself 

in both his personal life and his professional career during

an ultimately unsuccessful run for mayor. Fattah received 

a substantial illicit loan to his mayoral campaign and used 

his political influence and personal connections to engage 

friends, employees, and others in an elaborate series of 

schemes aimed at preserving his political status by hiding 

the source of the illicit loan and its repayment. In so doing, 

Fattah and his allies engaged in shady and, at times, illegal 

behavior, including the misuse of federal grant money and 

federal appropriations, the siphoning of money from 

nonprofit organizations to pay campaign debts, and the 

misappropriation of campaign funds to pay personal 

obligations.

Based upon their actions, Fattah and four of his 

associates—Herbert Vederman, Robert Brand, Bonnie 

Bowser, and Karen Nicholas—were charged with 

numerous criminal acts in a twenty-nine count indictment. 

After a jury trial, each was convicted on multiple counts. 

All but Bowser appealed. As we explain below, the 

District Court’s judgment will be affirmed in part and 

reversed in part.
9

II. Background1

During the 1980s and ’90s, Fattah served in both 

houses of the Pennsylvania General Assembly, first as a 

member of the House of Representatives and later as a 

Senator. In 1995, Fattah was elected to the United States 

House of Representatives for Pennsylvania’s Second 

Congressional District. In 2006, Fattah launched an 

unsuccessful run for Mayor of Philadelphia, setting in 

motion the events that would lead to his criminal 

conviction and resignation from Congress ten years later.

A. The Fattah for Mayor Scheme

Fattah declared his candidacy for mayor in 

November of 2006. Thomas Lindenfeld, a political 

consultant on Fattah’s exploratory committee, believed 

that “[a]t the beginning of the campaign, [Fattah] was a 

considerable . . . candidate and somebody who had a very 

likely chance of success.” JA1618. But Fattah’s campaign 

soon began to experience difficulties, particularly with 

fundraising. Philadelphia had adopted its first-ever 

campaign contribution limits, which limited contributions 

to $2,500 from individuals and $10,000 from political 

action committees and certain types of business 

organizations. Fattah’s fundraising difficulties led him to 

 1 The facts are drawn from the trial record unless otherwise 

noted.
10

seek a substantial loan, far in excess of the new 

contribution limits.

1. The Lord Loan and Its Repayment

While serving in Congress, Fattah became 

acquainted with Albert Lord, II. The two first met around 

1998, when Lord was a member of the Board of Directors 

of Sallie Mae.

As the May 15, 2007 primary date for the 

Philadelphia mayoral race approached, Fattah met Lord to 

ask for assistance, telling Lord that the Fattah for Mayor 

(FFM) campaign was running low on funds. Fattah asked 

Lord to meet with Thomas Lindenfeld, a political 

consultant in Washington, D.C., and part-owner of LSG 

Strategies, Inc. (Strategies), a company that was working 

with the FFM campaign and that specialized in direct voter 

contact initiatives. Lindenfeld had been part of the 

exploratory group that initially considered Fattah’s 

viability as a candidate for mayor. Lindenfeld had known 

Fattah since 1999, when Fattah endorsed Philadelphia 

Mayor John Street. Through Fattah, Lindenfeld had also 

gotten to know several of Fattah’s associates, including 

Herbert Vederman, Robert Brand, and Bonnie Bowser. 

Herbert Vederman, a businessman and former state 

official, was the finance director for the FFM campaign. 

Robert Brand owned Solutions for Progress (Solutions), a 

“Philadelphia-based public policy technology company,

whose mission [was] to deliver technology that directly 

assists low and middle income families [in obtaining] 
11

public benefits.” JA6551. Bowser was Fattah’s Chief of 

Staff and campaign treasurer, and served in his district 

office in Philadelphia.

Lord’s assistant contacted Lindenfeld to arrange a 

meeting, and Lindenfeld informed Fattah that he would be 

meeting with Lord. Lindenfeld, along with his partner, 

Michael Matthews, met with Lord and discussed Fattah’s 

need for funds to mount an intensive media campaign. 

After that meeting, Lindenfeld reported to Fattah that Lord 

wanted to help, but that they had not discussed a specific 

dollar amount. Approximately a week later, Fattah 

instructed Lindenfeld to meet with Lord a second time. 

Lord “wanted to know if he could give a substantial 

amount of money, a million dollars” to Fattah’s campaign. 

JA1630. That prompted Lindenfeld to reply that the 

amount “would be beyond the campaign finance limits.” 

Id.

Lord proposed a solution: he offered to instead give 

a million dollars to Strategies in the form of a loan. To that 

end, Lindenfeld had a promissory note drafted which 

specified that Lord was lending Strategies $1 million, and 

that Strategies promised to repay the $1 million at 9.25% 

interest, with repayment to commence January 31, 2008. 

Lindenfeld later acknowledged that the promissory note 

would make it appear as though Lord’s $1 million was not 

a contribution directly to the Congressman, although he 

knew that it was actually a loan to the FFM campaign. 

Indeed, Lindenfeld confirmed with Fattah that neither 
12

Lindenfeld nor Strategies would be responsible for 

repayment. With that understanding, Lindenfeld executed 

both the note and a security agreement purporting to 

encumber Strategies’ accounts receivable and all its assets.

On May 1, shortly before the primary election, Lord 

wired $1 million to Lindenfeld. Lindenfeld held the money 

in Strategies’ operating account until Fattah told him how 

it was to be spent. Some of the money was eventually used 

for print materials mailed directly to voters. And, at 

Fattah’s direction, Lindenfeld wired a substantial sum to 

Sydney Lei and Associates (SLA), a company owned by 

Gregory Naylor which specialized in “get out the vote” 

efforts.

Naylor had known Fattah for more than 30 years.2

During the campaign, Naylor worked as the field director 

and was in charge of getting out the vote on election day. 

 2 Naylor first worked with Fattah when he was in the state 

legislature. When Fattah was elected to Congress, Naylor 

worked in his Philadelphia office. Naylor met Nicholas 

when she joined Fattah’s staff at some point in the 1990s. 

After concluding her employment with Fattah’s office, 

Nicholas worked with the Educational Advancement 

Alliance (EAA), an education nonprofit entity founded by 

Fattah. This entity helped to recruit underrepresented 

students for scholarship and college opportunities. Around 

2009, Naylor left Fattah’s office to work exclusively with 

SLA. Naylor also knew Brand.
13

On the final day of the campaign, Naylor worked with 

Vederman, who allowed Naylor to use his credit card to 

rent vans that would transport Fattah voters to the polls.

As the primary date neared, Fattah and Naylor knew 

the campaign was running out of money. The campaign 

was unable to finance “media buys,” and Naylor needed 

money for field operations to cover Philadelphia’s more 

than one thousand polling places. In early May, 

Lindenfeld called Naylor to say that Lindenfeld “would be 

sending some money [Naylor’s] way.” JA3057. Within 

days, SLA received a six-figure sum for Naylor to use in 

the campaign and on election day. Naylor used the money 

to pay some outstanding bills, including salaries for FFM 

employees, and allocated $200,000 to field operations for 

election day.

Fattah lost the mayoral primary on May 15, 2007. 

Afterward, Lindenfeld spoke with Fattah, Naylor and 

Bowser about accounting for the FFM campaign money 

from Lord that had been spent. They decided that the 

amounts should not appear in the FFM campaign finance 

reports, and Fattah instructed Naylor to have his firm, 

SLA, create an invoice. Naylor did so, creating an invoice 

dated June 1, 2007 from SLA to FFM, seeking payment of 

$193,580.19. Naylor later acknowledged that the FFM 

campaign did not actually owe money to SLA, and that the 

false invoice was created to “hide the transaction that took 

place earlier” and “make it look like [SLA] was owed 

money.” JA3075–76. Although FFM did not owe SLA 
14

anything for the election day expenses, the FFM campaign 

finance reports from 2009 through 2013 listed a $20,000 

in-kind contribution from SLA for each year, thereby 

lowering FFM’s alleged outstanding debt to SLA.

Of the total $1 million Lord loan, $400,000 had not 

been spent. Lindenfeld returned that sum to Lord on June 

3, 2007. He included a cover letter which stated: “As it 

turns out the business opportunities we had contemplated 

do not seem to be as fruitful as previously expected.” 

JA1254. Lindenfeld later admitted that there were no such 

“business opportunities” and that the letter was simply an 

effort to conceal the loan.

In late 2007, faced with financial pressures, Lord 

asked his son, Albert Lord, III, to collect the outstanding 

$600,000 balance on the loan to Strategies. Lord III 

contacted Lindenfeld about repayment and expressed a 

willingness to forgive the interest owed if the principal 

was paid. Lindenfeld immediately called Fattah and 

informed him that repayment could not be put off any 

longer. Fattah told Lindenfeld more than once that “[h]e 

would take care of it,” JA1652, but Fattah did not act. 

Needing someone who might have Fattah’s ear, 

Lindenfeld reached out to Naylor and Bowser. Naylor 

talked to Fattah on several occasions and told him that 

Lindenfeld was under considerable pressure to repay the 

loan. Fattah told Naylor more than once that he was 

“working on it.” JA3082–83.
15

During his political career, Fattah had focused on 

education, especially for the underprivileged. Indeed, 

Fattah founded two nonprofit organizations: College 

Opportunity Resources for Education (CORE), and the 

Educational Advancement Alliance (EAA).

EAA held the annual Fattah Conference on Higher 

Education (the “annual conference”) to acquaint high 

school students with higher education options. JA3079. 

Sallie Mae regularly sponsored the conference. According 

to Raymond Jones, EAA’s chairman of the board from 

2004 through 2007, EAA offered a variety of programs to 

provide “marginalized students with educational 

opportunities so they could continue and go to college.” 

JA1360. EAA was funded with federal grant money which 

could only be spent for the purposes described in the 

particular grant. Karen Nicholas served as EAA’s 

executive director, handling the organization’s day-to-day 

administrative responsibilities. Nicholas had previously 

been a staffer for Fattah when he was a member of 

Pennsylvania’s House of Representatives.

CORE was an organization that awarded 

scholarships to graduating high school students in 

Philadelphia who had gained admission to a state 

university or the Community College of Philadelphia. 

CORE received funding from a variety of sources, 

including Sallie Mae. Because CORE also received 

federal funds, and because EAA had experience working 

with federal grants, EAA received and handled the federal 
16

funds awarded to CORE. In short, EAA functioned as a 

fiduciary for CORE. When money became a problem for 

the FFM campaign, Fattah’s involvement with EAA and 

CORE soon became less about helping underprivileged 

students, and more about providing an avenue for 

disguising efforts to repay the illicit campaign funds from 

Lord.

On January 7, 2008, Robert Brand contacted Fattah 

by telephone. Shortly thereafter, Lindenfeld received an 

unexpected call from Brand proposing an arrangement for 

Brand’s company, Solutions, to work with Strategies. 

Solutions had developed a software tool called “The 

Benefit Bank,” which was designed to “assist low and 

moderate income families to have enhanced access to 

benefits and taxes.” JA1993. During the telephone call, 

Brand referred to The Benefit Bank and suggested a 

contract under which Strategies would be paid $600,000 

upfront. JA1666. Shortly thereafter, on January 9, 2008, 

Brand followed up on his call to Lindenfeld with an email 

about “develop[ing] a working relationship where you 

could help us to grow The Benefit Bank and our process 

of civic engagement. While I know this is not your core 

business I would like to try to convince you to take us on 

as a client.” JA6427. Lindenfeld responded that he was 

interested. To Lindenfeld, “this was the way that 

Congressman Fattah was going to repay the debt to Al 

Lord.” JA1654. When Lindenfeld called Fattah and told 

him of the contact from Brand, Fattah simply replied that 

Lindenfeld “should just proceed.” JA1666–67.
17

A few days later, Brand emailed Nicholas at EAA a 

proposal from Solutions concerning The Benefit Bank, 

which sought EAA’s support in developing an education 

edition of The Benefit Bank and a $900,000 upfront 

payment.

As the January 31 date for repayment of the balance 

of the $1 million Lord loan approached, a flurry of activity 

took place. On January 24, both Raymond Jones, chair of 

the EAA Board, and Nicholas signed a check from EAA 

made out to Solutions in the amount of $500,000. 

Although no contract existed between EAA and Solutions, 

the memo line of the check indicated that it was for a 

contract, and Nicholas entered it into EAA’s ledger.3

That same day, Ivy Butts, an employee of 

Strategies, emailed Lindenfeld the instructions Brand 

would need to wire the $600,000 balance on the Lord loan. 

 3 Raymond Jones, who was EAA’s Chairman of the Board 

from 2004 through 2007, recalled at trial that the Board

had a limit on the amount that Nicholas could spend 

without board approval. JA1358, 1369. Nicholas was 

authorized to sign contracts on behalf of EAA for no more 

than $100,000. JA1369–71. Jones did not recall the 

contract between EAA and Solutions, nor did the EAA 

board minutes for December 2007, February 2008, or May 

2008 refer to the EAA–Solutions contract or to the 

substantial upfront payment of half a million dollars upon 

execution of the agreement. JA6358–63; 6567.
18

Within minutes, Lindenfeld forwarded that email to Brand 

at Solutions. Brand then made two telephone calls to 

Fattah. By late afternoon, Brand emailed Nicholas, 

informing her that he had “met with all the people I need 

to meet with and have a pretty clear schedule of what 

works best for us. I am also seeing what line of credit we 

have to stretch out the payments until you get your line of 

credit in place.” JA6558. Brand asked if they could talk 

and “finalize this effort.” JA6558. On January 25 and 26, 

there were a number of calls between Fattah, Brand, and 

Nicholas.

On Sunday January 27, at 5:46 pm, Brand 

telephoned Fattah. At 10:59 pm, Brand emailed Nicholas 

a revised contract between EAA and Solutions for the 

engagement of services. Brand indicated he would send 

someone to pick up the check at about 1:00 pm the 

following day. The revised contract called for the same 

$900,000 payment from EAA to Solutions, yet specified 

that $500,000 was to be paid on signing, with $100,000 

due three weeks later, and another $100,000 to be paid six 

weeks out. No due date for the $200,000 balance was 

specified. The terms of the contract called for EAA to 

assist Solutions with further developing The Benefit Bank. 

In addition, under the contract, EAA would receive certain 
19

funds from the Commonwealth of Pennsylvania for a 

program relating to FAFSA applications.4

The same evening, Brand sent Lindenfeld a contract 

entitled “Cooperative Development Agreement to Provide 

Services to Solutions for Progress, Inc. for Growth of The 

Benefit Bank.” JA6569. The agreement proposed a 

working partnership in which Strategies would work with 

Solutions to identify and secure a Benefit Bank affiliate in 

the District of Columbia and two other states, and to 

facilitate introductions to key officials in other states 

where The Benefit Bank might expand. The terms of the 

agreement provided that Solutions would pay $600,000 to 

Strategies by January 31, 2008, which would “enable 

[Strategies’] team to assess opportunities and develop 

detailed work plans for each area.” JA6572. Brand copied 

Solutions’ Chief Financial Officer, Michael Golden. 

Lindenfeld responded to Brand’s email within a minute, 

asking if Brand had received the wiring instructions. 

Brand immediately confirmed that he had.

Concerned that Solutions did not have $600,000 to 

pay Strategies, Golden talked to Brand, who informed him 

that Solutions would be receiving a check for $500,000 

from EAA. Early the next morning, Nicholas responded to 

Brand’s email from the night before. She advised Brand 

that he could pick up the check, “but as I stated I am not 

 4 FAFSA is an acronym for Free Application for Federal 

Student Aid.
20

in a position to sign a contract committing funds that I am 

not sure that I will have.” Gov’t Supp. App. (GSA) 1. That 

same day, a $540,000 transfer was made from the 

conference account, which EAA handled, into EAA’s 

checking account. The conference account was maintained 

to handle expenses for Fattah’s annual higher education 

conference. Prior to this transfer, EAA had only 

$23,170.95 in its account. EAA then tendered a $500,000 

check to Solutions, which promptly deposited the check 

before the close of that day’s business. EAA never 

replenished the $540,000 withdrawal from the conference 

account.

Brand received the executed contract between 

Solutions and Strategies on January 28. Even though the 

contract called for Strategies to perform services in 

exchange for the $600,000 payment, Lindenfeld neither 

expected to do any work for the $600,000, nor did he in 

fact do any work.

In sum, by January 28, Solutions had received 

$500,000 from EAA, but it still had to come up with 

$100,000 to provide Strategies with the entire amount 

needed to repay the Lord loan. Golden obtained the needed 

funds the following day by drawing $150,000 on a line of 

credit held by Brand’s wife. Brand and Fattah spoke four 

more times on the telephone on January 29. Trial evidence 

later showed that, during the month of January 2008, 

neither the FFM campaign bank account nor Fattah’s 
21

personal account had a sufficient balance to fund a 

$600,000 payment.

On the morning of January 30, frustrated by the 

delay, Lindenfeld sent Brand an email with a subject line 

“You are killing me.” JA6430. Lindenfeld stated that he 

had “made a commitment based on yours to me. Please 

don’t drag this out. I have a lot on the line.” Id. Brand 

responded late in the afternoon, stating: “just met with 

Michael. He does the transfer at 8 AM tomorrow. It should 

be in your account ($600K) early tomorrow morning.” Id.

Lindenfeld replied: “The earlier the better.” Id. The 

following morning, Golden wired $600,000 from 

Solutions’ Pennsylvania bank account into Strategies’ 

Washington D.C. bank account. JA2745, 2874. Strategies 

in turn, wired the same amount from its Washington D.C. 

bank account to Lord’s bank account in Virginia. JA2874, 

6549. Around noon, Brand telephoned Lindenfeld.

In the days following the exhaustive efforts to meet 

the January 31 loan repayment deadline, four more 

telephone calls took place between Brand and Fattah.5

Naylor learned at some point that the loan had been paid 

off. When Naylor asked Fattah about details of the 

repayment, Fattah simply replied “[t]hat it went through 

EAA to Solutions and it was done.” JA3088.

 5 By contrast, between October to December 2007, Brand 

and Fattah spoke by telephone only “once or twice [a] 

month.” JA2734.
22

Meanwhile, at some point in January, EAA received 

notice that the Department of Justice Office of the 

Inspector General (DOJ) intended to audit its books.6 DOJ 

auditors told EAA to provide, at the “entrance 

conference,” documentation containing budgetary and 

accounting information. EAA failed to produce any 

accounting information.

Although Lindenfeld was no longer making 

demands of Brand, Brand was still owed the remaining 

$100,000 that Solutions had paid to satisfy the Lord loan. 

On March 23, 2008, Brand sent Nicholas an email 

outlining his efforts to contact her over the previous two 

weeks about documentation on the CORE work, how to 

proceed with the paperwork for the Commonwealth of 

Pennsylvania, and “how we can get our proposed contract 

signed and the outstanding payments made.” JA2749. 

Nicholas responded that evening, writing:

I can appreciate your urgency however I do 

have EAA work that I continue to do, 

including the [usual] facilitation of programs, 

our financial audit, the start-up of two new 

programs[,] and of course the DOJ audit. I am 

still trying to obtain a line of credit without a 

completed 2007 audit and things are getting a 

 6 One of the terms and conditions of a federal grant is that 

the recipient “be readily prepared for an audit.” JA2314.
23

little uncomfortable now as I try to keep us 

afloat.

JA6576. Nicholas told Brand that the DOJ auditors were 

making demands and would soon be on site. She noted that 

“[t]hey are still very uncomfortable with your contract 

amongst other things and depending on their findings 

some of the funding received may have to be returned.” Id.

Nicholas said that she had submitted the paperwork to the 

state, and she told Brand that “in the future . . . as a result 

of the DOJ audit I will not be in a position to do another 

contract such as this.” Id.

Shortly after Nicholas’s reply to Brand, Nicholas 

forwarded the Brand–Nicholas email chain to Fattah. The 

body of the email stated, in its entirety: “I really don’t 

appreciate the tone of Bob’s email. I can appreciate that he 

has some things going on however I am doing my best to 

assist him. Some other things are a priority. He needs to 

back off.” GSA2. Later that night, Bowser sent Fattah an 

email with a subject line that read “Karen N” and a 

telephone number. JA2752.

As the audit continued, the auditors found other 

deficiencies. During April of 2008, DOJ issued a notice of 

irregularity to EAA, which resulted in the audit being 

referred to DOJ’s Investigations Division for a more 

comprehensive review.

On April 24, 2008, Brand emailed Nicholas asking 

for a time to update her on The Benefit Bank. In early May, 
24

Brand sent another email to Nicholas attaching a revised 

EAA–Solutions contract proposal, which decreased the 

initial upfront cost from $900,000 to $700,000.

Although Solutions and EAA had still not signed a 

contract, EAA paid Solutions another $100,000 in May. 

That money was obtained via a loan to EAA from CORE. 

Thomas Butler, who had worked for Fattah both when 

Fattah was in Congress and when he was in the General 

Assembly, was CORE’s executive director. Butler had 

been contacted in mid-May by Jackie Barnett, a member 

of CORE’s Board who had also worked with 

Congressman Fattah. Barnett informed Butler that 

Nicholas had requested a loan from CORE to EAA, and 

that Fattah, as Chairman of CORE’s Board, had approved 

it. Butler and Barnett withdrew funds from two CORE 

bank accounts and obtained a cashier’s check, dated May 

19, in the amount of $225,000 and made payable to EAA. 

The withdrawals were from accounts used for Sallie Mae 

funds and other scholarship money.

After EAA received the $225,000 check, EAA 

tendered a $100,000 check to Solutions. The check bore 

the notation “Commonwealth of Pennsylvania.” EAA 

repaid CORE the following month. Because EAA lacked 

sufficient funds of its own to cover this payment, EAA 

drew on grant money that it had received from NASA.

Brand and Lindenfeld continued to communicate 

concerning The Benefit Bank. In July of 2008, a meeting 

was held at Solutions with Brand, Lindenfeld, Golden, and 
25

other Solutions employees to discuss “an enormous 

amount of work” that Brand wanted Strategies to do. 

JA1670. Lindenfeld said in response “we’d be glad to do 

that, but . . . we would have to be paid.” Id. At that point, 

someone in the meeting stated that Strategies “had already 

been paid” $600,000. Id. Lindenfeld replied: “well, that 

was for Congressman Fattah, . . . that’s not for us. So if 

you want us to do work, we have to get paid for it 

separately.” Id. Brand became upset with Lindenfeld over 

his comment about being paid because his colleagues at 

Solutions were not aware of the reason for the $600,000 

payment.

Meanwhile, EAA was attempting to meet the 

demands of the DOJ auditors, who were focused on the 

relationship between EAA and CORE. DOJ served a 

subpoena upon Solutions to produce “[a]ny and all 

documents including, but not limited to, contract 

documents, invoices, correspondence, timesheets, 

deliverables and proof of payment related to any services 

provided to or payments received” from CORE or EAA. 

JA2350.

Special Agent Dieffenbach, from the DOJ, 

interviewed Nicholas on July 14, 2008. During that 

interview, Nicholas discussed the relationship between 

EAA and CORE, how invoices were paid, and how 

consultants were handled. Nicholas also answered 

questions about EAA’s relationship with Solutions, 

including the payment of invoices. She did not inform 
26

Agent Dieffenbach of the $500,000 payment in January or 

the subsequent $100,000 payment in May. Nor did the 

interview address the EAA–Solutions contract that 

purportedly required those payments, because the contract 

had yet to be produced.

Solutions failed to comply with the subpoena, 

prompting an email from Agent Dieffenbach on August 26 

asking for an update concerning Solutions’ reply to the 

DOJ subpoena. Solutions then produced an undated 

version of the EAA–Solutions contract that required the 

$600,000 upfront payment. Neither Brand nor Nicholas 

provided the auditors with the January and May checks 

from EAA to Solutions.

Efforts to conceal the repayment of the Lord loan 

and to promote the political and financial interests of 

Fattah continued. The FFM campaign reports indicated inkind contributions of debt forgiveness by SLA even 

though there had been no actual debt. In September of 

2009, with EAA’s ledgers still under scrutiny, Nicholas 

altered the description of the entry for the $100,000 check 

to Solutions from “professional fees consulting” to 

“CORE Philly.” JA2546. Other FFM campaign debt was 

reduced further after Vederman negotiated with creditors.

EAA never fully recovered from its payment of the 

$600,000 balance on the Lord loan and the audits that took 

place in 2008. It began laying off employees in 2011, and 

by June of 2012, only four employees remained. JA3659. 

EAA ceased operations at some point in 2012. JA1530.
27

2. The College Tuition Component of the FFM 

Scheme

Although the FFM campaign was close to insolvent, 

it nevertheless made tuition payments for Fattah’s son, 

Chaka Fattah Jr., also known as Chip. Chip attended 

Drexel University, but had yet to complete his coursework 

because he had failed to pay an outstanding tuition 

balance. As the FFM campaign got underway in 2007, 

Fattah wanted Chip to re-enroll in classes at Drexel and 

get a degree. Fattah asked Naylor to help financially, and 

he did so by writing checks from SLA to Drexel toward 

Chip’s outstanding tuition. By October of 2007, Chip was 

permitted to re-enroll in classes.

Although Naylor never directly addressed the issue 

with Fattah, he agreed to assist with Chip’s outstanding 

tuition with the expectation that SLA would be repaid. The 

first check to Drexel in the amount of $5,000 was sent in 

August of 2007, with $400 payments in the months that 

followed until August of 2008. At some point, Chip 

informed Naylor that the payee was no longer Drexel, but 

Sallie Mae. Naylor then began sending monthly checks 

from SLA to Sallie Mae. Those payments, in the amount 

of $525.52, began in March of 2009 and continued until 

April of 2011, after which Fattah told Naylor he no longer 

needed to make them. SLA’s payments to Drexel and 

Sallie Mae totaled $23,063.52.

Naylor’s expectation of repayment was eventually 

realized. Beginning in January of 2008 and continuing 
28

until November 2010, Bowser sporadically sent SLA 

reimbursement checks from the FFM campaign with a 

notation that payment was for “election day operation 

expenses.” JA3136. The FFM funds had been transferred 

from the Fattah for Congress campaign. These 

reimbursement checks totaled $25,400. In an effort to 

conceal the source of the payments to Drexel and Sallie 

Mae, and to make it appear that the younger Fattah had

performed services for SLA, Naylor created false tax 

forms for Chip. Chip, however, had never performed 

services for SLA.

3. The NOAA Grant and the Phantom Conference

In mid-December 2011, when EAA was 

experiencing serious financial difficulties, Nicholas

submitted an email request to the educational partnership 

program of the National Oceanic & Atmospheric 

Administration (NOAA) for a grant “designed to provide 

training opportunities and funding to students at minority 

serving institutions” interested in science, technology, 

engineering, and math fields related to NOAA’s mission. 

JA3354–55. The request sought $409,000 to fund EAA’s 

annual conference scheduled for February 17–19, 2012. 

Jacqueline Rousseau, a supervisory program manager at 

NOAA, participated in a conference call with Nicholas 

shortly thereafter and advised Nicholas that the agency 

could not afford the $409,000 request but would consider 

a smaller grant. Rousseau advised Nicholas that EAA 
29

would need to submit an application if it wished to be 

considered for a grant.

Before submitting a grant application, Nicholas 

emailed Rousseau about sponsoring the conference. On 

January 11, 2012, Rousseau informed Nicholas that the 

“NOAA Office of Education, Scholarship Programs has 

agreed to participate and provide sponsorship funds of 

$50K to support the referenced conference.” JA6453. 

Rousseau also informed Nicholas that Chantell Haskins, 

who also worked with the student scholarship program, 

would be the point of contact for NOAA.

In February 2012, EAA held its annual conference 

at the Sheraton Hotel in downtown Philadelphia. The 

conference had been held at the same location each year 

since 2008.

Nicholas contacted Haskins at some point in early 

2012, inquiring about the $50,000 grant. On May 8, 2012, 

Haskins sent Nicholas an e-mail which included 

information about submitting proposals to fund a 

conference for students. EAA then submitted a grant 

application, which Haskins reviewed. She advised 

Nicholas on June 28, 2012 that the grant could not be used 

to provide meals, and that the date of the conference would 

have to be pushed back, with the new date included in a 

modified application. When Nicholas asked if expenses 

from a previous conference could be paid from the new 

grant, Haskins informed her that this was not allowed.
30

In early July 2012, Nicholas sent a modified grant 

proposal to Haskins. It eliminated the budget item for food 

and changed the date of the 2012 conference to October 

19–21, 2012 at the same Sheraton Hotel in Philadelphia 

where EAA’s annual conference had taken place earlier in 

the year. NOAA approved a $50,000 grant for the October 

2012 conference—a conference that would never be held.

Unaware that no October 2012 conference had 

taken place, NOAA allowed Nicholas access to the 

$50,000 grant in March of 2013. She then transferred the 

entire amount from NOAA to EAA’s bank account a few 

days later. Naylor had performed services for EAA for 

which he was still owed $116,590. JA3119. In discussions 

with Naylor, Nicholas had informed him that the 

likelihood of EAA’s being able to pay him was “[n]ot very 

good.” JA3120. Yet several days after EAA had received 

the $50,000 from NOAA, Nicholas sent Naylor a check 

for $20,000. JA3120, 4283.

On April 3, 2013, Nicholas submitted a final report 

to NOAA concerning EAA’s use of the grant. Notably, 

page 4 of the report stated the conference had been held in 

February 2012, while page 17 stated that the conference 

had been held from October 19 to 21, 2012. NOAA issued 

a notice asking for clarification and for a list of students 

who had been supported at the conference. Nicholas failed 

to file either a clarifying report regarding the date of the 

conference or a timely report regarding the disbursement 

of the grant. Finally, in November of 2013, Nicholas 
31

submitted the final Federal Financial Report in which she 

certified, falsely, that the $50,000 had been used for a 

project during the period from August 1, 2012 to 

December 30, 2012.

B. The Blue Guardians Scheme

In addition to functioning as the conduit for Lord’s 

$1 million loan to Fattah’s campaign, Lindenfeld’s 

company, Strategies, also performed services for the 

campaign. The work resulted in indebtedness from FFM 

to Strategies of approximately $95,000. Fattah made 

several small payments, but failed to pay the full amount 

due. Although Lindenfeld spoke to Fattah, Naylor and 

Bowser about the debt, no payments were forthcoming. 

During a meeting in Fattah’s D.C. office, Fattah told 

Lindenfeld “that [repayment] really wasn’t going to be 

possible because the campaign had been over for a long 

time” and the funds were not available. JA1693. Fattah 

then asked Lindenfeld if he could write off the debt on his 

FFM campaign finance reports. Id. Lindenfeld told Fattah 

that as long as he was paid, it was not his business how 

Fattah disclosed it on the campaign finance reports. 

JA1694.

In lieu of repayment, Fattah suggested that 

Strategies could claim to be interested in setting up an 

entity to address environmental issues and ocean pollution 

along the coastline and in the Caribbean. Fattah explained 

that creating such an entity would make it possible to 

obtain an appropriation from the government. Hearing 
32

this, Lindenfeld knew he was not going to be paid by the 

FFM campaign, and was amenable to receiving money 

from an appropriation instead. At a later meeting, 

Lindenfeld told Fattah that the name of the entity would 

be “Blue Guardians.” Lindenfeld consulted with an 

attorney about creating Blue Guardians as an entity to 

receive the federal grant. He emailed Fattah, asking 

questions about how to complete an application to the 

House Appropriations Committee. Fattah provided 

suggestions, and an application was eventually completed. 

It indicated that Blue Guardians would be “in operation for 

a minimum of ten years,” and, in accordance with Fattah’s 

guidance, requested $15 million in federal funds. JA1711–

13.

Lindenfeld submitted the application to Fattah’s 

office in April of 2009. Afterward, a Fattah staffer 

contacted Lindenfeld to suggest that he change his 

Washington, D.C., address to Philadelphia because that 

was the location of Fattah’s district. Fattah later suggested 

to Lindenfeld that Brand might allow the use of his 

Philadelphia office address, a plan to which Brand agreed.

In February 2010, Lindenfeld submitted a second 

application to the Appropriations Committee. In March, 

Fattah submitted a project request using his congressional 

letterhead and seeking $3,000,000 for the “Blue 

Guardians, Coastal Environmental Education Outreach 

Program.” JA6432. Within a month, Blue Guardians had 

both articles of incorporation and a bank account. Around 
33

that time, a news reporter contacted Lindenfeld to discuss 

the new Blue Guardians entity. The inquiry made 

Lindenfeld uncomfortable, and he ultimately decided to 

abandon the Blue Guardians project. He continued to seek 

payment from Fattah, to no avail.

Nonetheless, having obtained Lindenfeld’s 

acquiescence to writing off the campaign’s debt to 

Strategies, Fattah started falsifying FFM’s campaign 

reports. Beginning in 2009 and extending through 2013, 

the FFM campaign reports executed by Fattah and Bowser 

stated that Strategies made in-kind contributions of 

$20,000, until the debt appeared to have been paid in full.

C. The Fattah–Vederman Bribery Scheme

Vederman and Fattah were personal friends. 

Vederman was a successful businessman who had also 

served in prominent roles in the administrations of Ed 

Rendell when he was Mayor of Philadelphia and Governor 

of Pennsylvania. In November of 2008, Vederman was a 

senior consultant in the government and public affairs 

practice group of a Philadelphia law firm. His assistance 

to the FFM campaign included paying for rented vans used 

in the get-out-the-vote effort.

After Fattah’s electoral defeat, the campaign still 

owed more than $84,000 to a different law firm for 

services performed for the campaign. Vederman 

approached that firm in the summer of 2008 asking if it 

would forgive FFM’s debt. Negotiations resulted in a 
34

commitment from FFM to pay the firm $30,000 by the end 

of 2008 in exchange for forgiveness of $20,000, all of 

which would appear on the FFM campaign finance report. 

Vederman’s efforts also led to payment by Fattah of an 

additional $10,000 in 2009 to the law firm, in exchange 

for additional forgiveness of $20,000 of debt. It was not 

long after Vederman’s successful efforts to lower Fattah’s 

campaign debt, that Fattah wrote a letter to U.S. Senator 

Robert P. Casey recommending Vederman for an 

ambassadorship.

At some point in 2010, Vederman again intervened 

on behalf of the FFM campaign. FFM remained in debt to 

an advertising and public relations firm owned by Robert 

Dilella. By late 2011, Vederman and Dilella had worked 

out a settlement to resolve the outstanding debt. Pursuant 

to that settlement, Dilella received partial payment from 

the FFM campaign: $25,000 in satisfaction of a $55,000 

debt. Dilella testified at trial that he would not have agreed 

to retire a portion of the debt had he known the FFM 

campaign was paying college tuition for Fattah’s son.

Vederman helped Fattah financially in other ways. 

Before the 2006 FFM campaign, Fattah and his wife, 

Renee Chenault-Fattah, sponsored a young woman named 

Simone Muller to live with them as an au pair exchange 

visitor. Muller was from South Africa, and her J-1 visa 

allowed her to serve as a nanny and to study in the United 

States. Muller later applied for and received a second visa, 

an F-1 student visa that indicated she had been accepted as 
35

an international student at the Community College of 

Philadelphia. The application indicated that Muller would 

again be residing with the Fattahs. Notwithstanding this 

living arrangement, Fattah identified Vederman as the 

person who would be paying for Muller’s trip to the 

United States.

By the beginning of 2010, Muller wished to transfer 

to Philadelphia University. This required her to submit 

verification that funds were available to pay for her study. 

Although the Fattahs were Muller’s sponsors, Fattah 

explained to the University’s Dean of Enrollment Services 

that he was submitting a letter of secondary support from 

Vederman. JA3754, 3763–65, 6504. Without Vederman’s 

January 2010 letter of support, the University would not 

have admitted Muller. In addition to this pledge of support, 

Vederman paid $3,000 of Muller’s tuition. Shortly 

thereafter, Fattah resumed his efforts to secure an 

ambassadorship for Vederman.

In February of 2010, Fattah staffer Maisha Leek 

contacted Katherine Kochman, a scheduler for White 

House Chief of Staff Rahm Emanuel. Leek requested a 

telephone conference with Emanuel, Rendell, and Fattah 

to discuss Vederman’s “serving his country in an 

international capacity.” JA2893. In a follow-up email on 

March 26, Leek sent documents to Kristin Sheehy, a 

secretary to White House Deputy Chief of Staff James 

Messina. The documents included Fattah’s 2008 letter to 

Senator Casey and Vederman’s biography. After 
36

participating in a telephone conference about Vederman 

with Fattah and Rendell, Messina sent Vederman’s 

biography to the White House personnel office for 

consideration.

As the April 2010 tax deadline approached, Fattah 

still owed the City of Philadelphia earned income tax in 

the amount of $2,381. Just days before the filing deadline, 

Vederman gave a check to Chip Fattah for $3,500. The 

younger Fattah quickly deposited $2,310 into his father’s 

bank account. Fattah paid his tax bill on April 15. Without 

Chip’s deposit into his father’s bank account, the older 

Fattah would not have had sufficient funds to pay his tax 

bill.

On October 30, 2010, Vederman gave Chip another 

check, this one for $2,800. That same day, Fattah handdelivered a letter to President Obama recommending 

Vederman for an ambassadorship. A few weeks later, 

Fattah’s staffer, Leek, sent the letter that Fattah had given 

to President Obama to Messina’s office. That letter 

pointed out that both Rendell and Fattah had sent letters 

on behalf of Vederman, and that he was an 

“unquestionably exceptional candidate for an 

ambassadorship.” JA6291–92.

Fattah’s efforts to secure Vederman an 

ambassadorship were unsuccessful. Fattah then shifted 

gears and sought to secure Vederman a position on a 

federal trade committee. Fattah approached Ron Kirk, who 

served as U.S. Trade Representative, and asked him to 
37

speak with a constituent. In May of 2011, Leek followed 

up on that discussion by emailing Kirk and asking him to 

meet with Vederman. Kirk met with Vederman on June 5, 

2011 and explained to him the role of the trade advisory 

committees. Although the two men “had a very nice 

conversation,” JA 3566, it soon became “pretty apparent 

to [Kirk and his staff] that [serving on a trade advisory 

committee was] not what Mr. Vederman was interested 

in.” JA3567. As Kirk put it, “it was obvious that 

[Vederman] was looking for something perhaps more 

robust in his mind or . . . higher profile than one of our 

advisory committees.” Id. Given Vederman’s lukewarm 

interest, no appointment to an advisory committee was 

forthcoming.

In late December 2011, the Fattahs applied for a 

mortgage so they could purchase a second home in the 

Poconos. Shortly after applying for the mortgage, Fattah 

emailed Vederman, offering to sell him his wife’s 1989 

Porsche for $18,000. Vederman accepted the offer. The 

next day, Vederman wired $18,000 to Fattah’s Wright 

Patman Federal Credit Union account.

The Credit Union Mortgage Association (CUMA) 

acted as the loan processing organization for the home 

mortgage. Because CUMA is required to verify the source 

of any large deposits, CUMA’s mortgage loan processor, 

Victoria Souza, contacted Fattah on January 17, 2012, to 

confirm the source of the $18,000. Fattah informed Souza 

that the $18,000 represented the proceeds of the Porsche 
38

sale. Souza requested documentation, including a signed 

bill of sale and title.

That same day, Bowser emailed Vederman a blank 

bill of sale for the Porsche. After Vederman signed the bill 

of sale, Fattah forwarded it to Souza. The bill of sale was 

dated January 16, 2012, which was the day before Souza 

had requested the documentation. It bore the signatures of 

Renee Chenault-Fattah and Herbert Vederman, with 

Bonnie Bowser as a witness.

Fattah also provided Souza with a copy of the 

Porsche’s title. It was dated the same day it was sent to 

Souza, and bore signatures of Chenault-Fattah as the seller 

and Vederman as buyer, along with a notary’s stamp. 

Neither Vederman nor Chenault-Fattah actually appeared 

before the notary.

Vederman never took possession of the Porsche. 

Renee Chenault-Fattah continued to have the Porsche 

serviced and insured long after the purported sale had 

taken place. Moreover, the Porsche remained registered in 

Chenault-Fattah’s name, and was never registered to 

Herbert Vederman. When FBI agents searched the 

Fattahs’ home in 2014, the Porsche was discovered in the 

Fattahs’ garage.

On January 24, 2012, the Fattahs wired $25,000 to 

the attorney handling the escrow account for the purchase 

of the vacation home. Without the $18,000 transfer from 
39

Vederman, the Fattahs would not have had sufficient funds 

in their bank accounts to close on the home.

Around the same time that the Fattahs were 

purchasing the house in the Poconos, Fattah’s Philadelphia 

office hired Vederman’s longtime girlfriend, Alexandra 

Zionts. Zionts had long worked for a federal magistrate 

judge in Florida. Near the end of 2011, the magistrate 

judge retired, leaving Zionts ten months shy of obtaining 

the necessary service required to receive retirement 

benefits. If Zionts could find another job in the federal 

government, her benefits and pension would not be 

adversely affected. Vederman assisted Zionts in her job 

search, which included calling Fattah. Fattah hired her, a 

move that put his congressional office overbudget. Zionts 

worked in Fattah’s office for only about two months, 

leaving to work for a congressman from Florida.

Tia Watson, who performed constituent services for 

Fattah and worked on the same floor as Zionts in Fattah’s 

district office, testified she had no idea what work Zionts 

performed. Although Zionts contacted Temple University 

about archiving Fattah’s papers from his career in both the 

state and federal government, an employee from Temple 

University observed that Zionts’ work contributed nothing 

of value to the papers project.

D. The Indictment and Trial

Fattah’s schemes eventually unraveled. On July 29, 

2015, a federal grand jury in the Eastern District of 
40

Pennsylvania returned a twenty-nine count indictment 

alleging that Fattah and his associates had engaged in a 

variety of criminal acts. Fattah, Vederman, Nicholas, 

Brand, and Bowser were charged with unlawfully 

conspiring to violate the Racketeer Influenced and Corrupt 

Organizations Act (RICO), 18 U.S.C. § 1962(d). In 

addition to the RICO charge, the indictment alleged that 

Fattah and certain co-defendants had unlawfully conspired 

to commit wire fraud, 18 U.S.C. §§ 1343, 1349; honest 

services fraud, 18 U.S.C. §§ 1343, 1346, 1349; mail fraud, 

18 U.S.C. §§ 1341, 1349; money laundering, 18 U.S.C. 

§ 1956; and to defraud the United States, 18 U.S.C. § 371. 

Several defendants were also charged with making false 

statements to banks, 18 U.S.C. § 1014; falsifying records, 

18 U.S.C. § 1519; laundering money, 18 U.S.C. § 1957; 

and engaging in mail, wire, and bank fraud, 18 U.S.C. 

§§ 1341, 1343, and 1344.

The RICO charge alleged that the defendants and 

other co-conspirators constituted an enterprise aimed at 

supporting and promoting Fattah’s political and financial 

interests. The efforts to conceal the $1 million Lord loan 

and its repayment are at the heart of the RICO conspiracy 

and the Fattah for Mayor scheme. The indictment further

alleged that the RICO enterprise involved: (1) the scheme 

to satisfy an outstanding campaign debt by creating the 

fake “Blue Guardians” nonprofit; and (2) the bribery 

scheme to obtain payments and things of value from 

Vederman in exchange for Fattah’s efforts to secure 

Vederman an appointment as a United States Ambassador.
41

A jury trial, before the Honorable Harvey Bartle III 

of the Eastern District of Pennsylvania, began on May 16, 

2016, and lasted about a month.7 Judge Bartle charged the 

jury on Wednesday, June 15, 2016, and deliberations 

began late that afternoon. The following day, after 

deliberating for only four hours, the jury sent a note to the 

judge. Written by the foreperson, the note read:

Juror Number 12 refuses to vote by the letter 

of the law. He will not, after proof, still 

change his vote. His answer will not change. 

He has the 11 of us a total wreck knowing that 

we are not getting anywhere in the hour of 

deliberation yesterday and the three hours 

today. We have zero verdicts at this time all 

due to Juror Number 12. He will not listen or 

reason with anybody. He is killing every 

other juror’s experience. We showed him all 

the proof. He doesn’t care. Juror Number 12 

has an agenda or ax to grind w/govt.

JA5916.

Shortly after receiving the foreperson’s note, the 

Court received a second communication—a note signed 

 7 The District Court dismissed one charge prior to 

trial: an individual money laundering count against 

Nicholas.
42

by nine jurors, including the foreperson. The second note 

read:

We feel that [Juror 12] is argumentative, 

incapable of making decision. He constantly 

scream [sic] at all of us.

Id.

Judge Bartle met with counsel in his chambers and 

advised them of his intention to voir dire both the 

foreperson and Juror 12 in an effort to determine whether 

the juror was deliberating as required by his oath. The

Judge also indicated that he would “stay away from the 

merits of the case,” and that whether he would voir dire

more jurors “remain[ed] to be seen.” JA5917.

Counsel for the defendants objected to the Court’s 

proposed inquiry. As a group, they indicated that while the 

note could be read as suggesting “a flat refusal to 

deliberate,” they were of the opinion that it sounded “more 

in the manner of a disagreement over the evidence.” 

JA5918. Nicholas’s counsel specifically argued that 

questioning the jurors so quickly after the start of 

deliberations would send a message that differences of 

opinion among a block of jurors could be resolved by 

complaining to the Court. Defense counsel acknowledged 

that the case law gave Judge Bartle wide discretion on how 

to proceed, but suggested that a “less intrusive” course of 

action was preferred. JA5918–19. They collectively urged 
43

the Court to do nothing more than remind the jurors of 

their duty to deliberate.

The Government agreed with Judge Bartle’s 

proposed voir dire. In the prosecution’s view, the Court 

had already given proper instructions to the jury on their 

duty to deliberate. The Government further argued that if 

Juror 12 had exhibited bias, as suggested in the notes, he 

would have lied during the voir dire process and his 

refusal to deliberate would be “further evidence of that and 

his unsuitability as a juror.” JA5921.

With all counsel present, and over defense counsel’s 

objections, Judge Bartle ultimately questioned five jurors 

in chambers. He questioned Juror 2 (the foreperson), Juror 

12 (the subject of the complaints), Juror 3, Juror 6, and 

Juror 1.

Judge Bartle began each voir dire by informing the 

juror that he would ask a series of questions, but would not 

inquire into the merits of the case or how any juror was 

voting. Each juror was placed under oath, and Judge Bartle 

asked, among other questions, whether screaming was 

occurring; whether the jurors were discussing the 

evidence; whether Juror 12 was placing his hands on other 

jurors; and whether Juror 12 was unwilling to follow his 

instructions.

The foreperson acknowledged that he had written 

the initial note during lunch earlier that day. He stated that 

Juror 12 was not willing to follow the law, but instead 
44

“want[ed] to add his own piece of the law . . . which has 

nothing to do with it.” JA5927–28. The foreperson further 

testified that Juror 12 “was standing up screaming” and 

that “[i]t was everybody pretty much against [Juror 12].” 

JA5929. He testified that Juror 12 “has his own agenda,” 

and that Juror 12 put his hand on another juror. JA5930. 

The foreperson also stated that the jury had discussed only 

a single count since the day before, and that they were still 

discussing it. When the District Court responded that the 

jurors should understand that they could take as much time 

as they needed, the foreperson responded: “I understand 

that. . . . [W]e all understand it. But we feel that he’s just—

he’s got another agenda.” JA5934.

Judge Bartle advised counsel that he considered this 

“a very serious situation” and that he would proceed to 

voir dire Juror 12. JA5937. Fattah’s counsel renewed his 

objection to questioning Juror 12, which the Court 

overruled. Brand’s counsel argued that because the Court 

had decided to voir dire Juror 12, it should also voir dire

an additional juror. The Court agreed to do so.

When the Court questioned Juror 12, he admitted to 

having “yelled back” at others, but only when they raised 

their voices to him. JA5939. Juror 12 contended that he, in 

fact, was “the only one” deliberating. Id. When an initial 

vote was taken the previous afternoon, his vote “was 

different than everybody else’s.” Id. Juror 12 explained to 

the other jurors why his vote was different, bringing up 

specific evidence. In response, the other jurors said “that 
45

doesn’t mean anything” and “pointed to the indictment.” 

JA5940. Juror 12 told the other jurors that the indictment 

is not evidence. Id. In response, the others “threatened to 

have [him] thrown off.” Id.

Juror 12 testified that a similar sequence of events 

had taken place that morning. After a brief period of 

deliberations, another vote was taken, and with the same 

result as the previous afternoon. A discussion ensued, and 

the other jurors again “point[ed] to the indictment.” Id. 

Juror 12 told them to “read the charge,” “[t]he indictment 

is not evidence.” Id. They read the charge, and Juror 12 

again attempted to explain his view, but the other jurors 

paid little attention. Accordingly, Juror 12 told the others 

that if they did not want him there, he “[didn’t] want to be 

[there]”—he would be “[o]kay with it” if they wanted him 

taken off the jury. JA5941.

Upon hearing this testimony, Judge Bartle again 

asked about the tone of deliberations. Juror 12 repeated 

that he raised his voice only in response to others who did 

so—he did “not want to yell at anybody.” JA5942. Judge 

Bartle then asked whether he had touched other jurors. 

Juror 12 replied that he had not hurt anyone. When asked 

if he had put his hand on anybody’s shoulder, Juror 12 

answered: “I couldn’t remember to be honest with you.” 

JA5946.

Following Juror 12’s voir dire, the Court summoned 

Juror 3 to chambers. Juror 3 testified that, after discussion 

of a particular count, there was one juror at odds with the 
46

others. According to Juror 3, “the rest of the jurors 

pounced on the gentleman with the . . . dissenting 

opinion.” JA5948. Juror 3 testified that Juror 12 “got very 

defensive and just a little bit [] impatient” and that “the 

other jurors were very impatient with him.” Id. Juror 3 did 

not recall witnessing Juror 12 putting his hand on any 

other jurors.

The Government requested that the Court voir dire 

another juror. Defense counsel objected, claiming that the 

questioning “threaten[ed] . . . the entire deliberative 

process.” JA5949–50. Judge Bartle reminded counsel that 

he had the authority to question each juror, and called for 

voir dire of Juror 6.

Juror 6 testified that the jury had been discussing the 

case and reviewing the evidence, but that Juror 12 “wants 

to be seen” and was “being obstinate.” JA5951–52. 

According to Juror 6, Juror 12 “may not agree” with the 

conclusion of other jurors but “doesn’t give valid reasons

as to why he may disagree with the charge.” JA5952. Juror 

6 also revealed that Juror 12 was the first to raise his voice, 

and that he may have touched her and another juror. When 

asked to clarify what she meant by Juror 12 disagreeing 

with “the charge,” Juror 6 testified that Juror 12 was 

“reading maybe too deeply into it and putting his own 

emotions into it instead of just looking at what it says [and] 

what the facts are.” JA5952, 5955. According to Juror 6, 

Juror 12 “just continues to read past that into his own mind 

of what he feels it should be.” JA5955. Juror 6 testified 
47

that Juror 12’s “justification for some of his responses [did 

not] seem to relate to what the matter [was] before 

[them].” JA5957.

Judge Bartle chose to hear from yet another juror. 

Juror 1 was called and informed the Court and counsel that 

the jury “really [hadn’t] been able to even start the 

deliberation process” in light of the disruptive behavior of 

“one particular individual.” JA5958–59. The particular 

individual, according to Juror 1, was “very opinionated” 

and “[came] into the process with his view already 

established, refusing to even listen to any of the evidence 

. . . [being] very forceful . . . standing up, yelling, pointing 

his finger.” JA5959. When asked if this individual was 

willing to follow the Court’s instructions, Juror 1 testified 

that he “pours [sic] over the documents very well” but that 

he was adding other factors to answer the question on the 

verdict form, such as “what did this person feel.” JA5961. 

When Judge Bartle advised that intent was an appropriate 

consideration, Juror 1 agreed but said that Juror 12 was 

“trying to investigate . . . going way beyond the scope” of 

the evidence before them. JA5961–62. Juror 12, he said, 

“has an opinion and that opinion is established.” JA5962. 

He stated that Juror 12 was “not willing to listen to any 

sort of reason or any sort of what everyone else is saying” 

but instead, was “trying to force everyone else to get to his 

point of view.” Id. “[I]f he feels like he’s not getting there, 

he gets louder and louder and points and puts his hand on 

your shoulder . . . .” Id.
48

After questioning the five jurors (Jurors 1, 2, 3, 6, 

and 12), Judge Bartle heard argument from counsel. The 

attorney for the Government pointed out that the Court 

would have to make a credibility determination because 

Juror 12 stated that he did not recall touching anyone. In 

the Government’s view, Juror 12 was disrupting the 

process and should be removed. Defense counsel 

disagreed. They argued that Juror 12 was conscientious 

and was engaging with the evidence. They pointed out that 

despite the testimony that Juror 12 was reading too deeply 

into the instructions or introducing new factors for the jury 

to consider, Juror 6 had testified that the jurors “talked it 

through” and resolved the concern. JA5965. Defense 

counsel argued that the jury was discussing intent, an issue 

that was at the heart of the case. Defense counsel perceived 

no breakdown in deliberations and argued that dismissal 

would be premature. They suggested, instead, that the 

Court provide a supplemental instruction.

Judge Bartle decided to adjourn for the afternoon. 

But before he left the courtroom, defense counsel brought 

two matters to his attention. First, in light of testimony 

during the voir dire, they asked that the jury be 

reinstructed that the verdict form and indictment were not 

evidence. Second, they apprised the Judge of the standard 

for juror dismissal set forth in United States v. Kemp, 500 

F.3d 257 (3d Cir. 2007). Defense counsel stated that under 

Kemp, a request to discharge a juror must be denied if there 

is a possibility that the request stems from the juror’s view 

of the evidence. Judge Bartle expressed hesitation on 
49

reinstructing the jury, but agreed that Kemp would control 

his determination as to whether dismissal was appropriate.

With the following morning came a new revelation.

With counsel in chambers, the Judge informed them that

“additional significant evidence” had come to light since 

the previous day’s recess. JA5980. He placed his 

courtroom deputy under oath, and she proceeded to testify 

to an exchange that had occurred the previous day as she 

was escorting Juror 12 back to the jury room after he had 

been voir dired. According to the deputy, Juror 12 stopped 

her in the hallway, placed his hand on her shoulder, and 

looked her “straight in the eye.” JA5981. He then said: 

“I’m going to hang this jury.” Id. The deputy then related 

that before any further conversation could take place 

between Juror 12 and the deputy, Judge Bartle summoned 

Juror 12 back to his chambers. Later that day, however, 

Juror 12 and the courtroom deputy had another exchange. 

She testified that after all five jurors had been questioned, 

Juror 12 emerged from the jury room and told her “I really 

need to talk to you.” JA5982. She informed Judge Bartle 

and counsel that Juror 12 “said more about how they’re 

treating him and what he’s saying to them.” Id. He flatly 

stated that “it’s going to be 11 to 1 no matter what.” Id.

There were no follow-up questions for the deputy. 

Instead, defense counsel suggested that what Juror 12 may 

have meant was that he was willing to hang the jury 

because of a lack of evidence. They requested that Juror 

12 be asked about his comments to the deputy.
50

After once again summoning Juror 12 to his 

chambers, the Judge advised him that “[s]ome questions 

have arisen” about what he may have done after being voir 

dired the previous day. JA5985. Juror 12 acknowledged 

having conversations with the courtroom deputy. When 

asked “what happened” and “[w]hat occurred,” Juror 12 

responded: “Basically, I said that there was a lot of name 

calling going on.” JA5985. He said comments had been 

made by other jurors about his service in the military. He 

specifically referred to other jurors’ suggesting that he had

possibly “hit [his] head . . . hard a few times” while 

serving in a parachute regiment. JA5986. He testified he 

had conveyed these comments to the deputy and that he 

found them offensive. When asked if he said anything else 

to the deputy, Juror 12 responded: “I may have. I really 

can’t recall.” JA5987. And when Judge Bartle followed up 

by asking if he could recall anything else that he said to 

the deputy, Juror 12 simply replied: “No. To me, that was 

the most important thing.” Id. Juror 12 was then excused

from chambers.

Defense counsel next requested that the juror be 

asked directly whether he told the courtroom deputy that 

he was going to “hang this jury.” JA5988. Juror 12 was 

recalled to chambers, and the following back and forth 

took place:

The Court: You may be seated. And, of 

course, [Juror 12], you know you’re under 

oath here from yesterday?
51

Juror 12: Yes, sir.

The Court: . . . Did you say to [the courtroom 

deputy] that you’re going to hang this jury?

Juror 12: I said I would.

The Court: You did?

Juror 12: I did. I said—I told her—I said, we 

don’t agree; I’m not just going to say guilty 

because everybody wants me to, and if that 

hangs this jury, so be it.

. . . .

Juror 12: I did say that, sir.

The Court: You didn’t remember that before?

Juror 12: I’m more concerned about people 

spitting on my military record.

The Court: Did you say that you’d hang the 

jury no matter what?

Juror 12: If they do—if we cannot come to—

The Court: No. The question is what you said 

to her. Did you say to her you would hang the

jury no matter what?

Juror 12: I can’t really remember that. I did 

say that if we didn’t—a person—no matter 

what, I can’t recall that exactly.

The Court: All right. Thank you very much. 

You can wait just out there in the anteroom.

JA5989–90.

Defense counsel continued to oppose Juror 12’s 

dismissal. They argued that the juror’s concern was about 
52

the evidence, and that his comments to the courtroom 

deputy reflected a conviction that “he’s not going to agree 

just because others want him to agree.” JA5991. They also 

argued that nothing should be made of Juror 12’s failure 

to mention the comments when initially questioned by the 

Court, and that a supplemental instruction was all that was 

warranted given the early stage of the deliberations.

The Government strongly disagreed. The Assistant 

United States Attorney argued that Juror 12 “should 

absolutely be removed” because “his demeanor ha[d] 

demonstrated a hostility . . . both to the other jurors and to 

the court.” JA5993. The Government also suggested that 

Juror 12’s comments that he would hang the jury meant 

that he was not participating in the deliberations and was 

ignoring the evidence and the law.

Ruling from the bench, Judge Bartle announced:

I find [the deputy clerk] to be credible. I find 

[Juror 12], not to be credible. I find that [Juror 

12] did tell [the deputy clerk] that he was 

going to hang this jury no matter what.

There have been only approximately 

four hours of deliberation. There’s no way in 

the world he could have reviewed and 

considered all of the evidence in the case and 

my instructions on the law.

I instructed the jury to deliberate, 

meaning to discuss the evidence; obviously, 

to hold onto your honestly held beliefs, but at 
53

least you have to be willing to discuss the 

evidence and participate in the discussion 

with other jurors.

Juror number 12 has delayed, 

disrupted, impeded, and obstructed the 

deliberative process and had the intent to do 

so. I base that having observed him, based on 

his words and his demeanor before me.

He wants only to have his own voice 

heard. He has preconceived notions about the 

case. He has violated his oath as a juror.

And I do not believe that any further 

instructions or admonitions would do any 

good. I think he’s intent on, as he said, 

hanging this jury no matter what the law is, 

no matter what the evidence is.

Therefore, he will be excused, and I 

will replace him with the next alternate . . . .

JA5994–95.

In response, defense counsel moved for a mistrial, 

which the judge promptly denied. He then informed the 

reconstituted jury that deliberations would need to start 

over, and reinstructed them on certain points of law, 

including that the verdict slip does not constitute evidence.

Judge Bartle elaborated upon his decision to remove 

Juror 12 in two post-trial memorandum opinions. In the 

first, ruling on a media request for the sealed transcripts, 

he explained:
54

Here, there is no doubt that Juror 12 

intentionally refused to deliberate when he 

declared so early in the process that he would 

hang the jury no matter what. This finding 

was predicated on the admission of Juror 12 

as reported by the court’s deputy clerk. The 

facts became clear to the court after hearing 

the credible testimony of the deputy clerk and 

the less credible testimony of Juror 12. The 

demeanor of Juror 12 before the court 

confirmed the court’s findings.

GSA23–24. The second opinion addressed motions for 

bail pending appeal from Nicholas and Brand. GSA25. 

There, Judge Bartle explained:

The law is well-settled that the court has 

discretion to act as it did under these 

circumstances. See United States v. Kemp, 

500 F.3d 257, 304 (3d Cir. 2007). The court, 

after taking testimony, specifically found that 

the juror, following only a few hours of 

deliberation, stated to the court’s courtroom 

deputy clerk that he would hang this jury no 

matter what. He could not possibly have 

reviewed all of the law and evidence of this 

five-week trial at the time he made his 

remark. The court examined the deputy clerk 

and the juror under oath in the presence of 

counsel for all parties. The undersigned 
55

found the deputy clerk to be credible and the 

juror not to be credible. Based on the juror’s 

demeanor, it was clear he would not change 

his attitude and that his intent had been and 

would continue to be to refuse to deliberate 

in good faith concerning the law and the 

evidence.

GSA32.

After deliberating for approximately 15 hours, the 

jury returned with its verdicts on June 21, 2016, finding 

the defendants guilty on most counts. Fattah, Vederman, 

and Brand were convicted on all counts. The jury acquitted 

Bowser on sixteen counts, but found her guilty of the 

bribery conspiracy and the associated charges of bank 

fraud, making false statements to a financial institution, 

falsifying records, and money laundering (Counts 16, 19, 

20, 21 and 22). The jury also acquitted Nicholas of wire 

fraud (Count 24). See Nicholas Supp. App. (NSA) 36.

The following week, on June 27, the Supreme Court 

issued its opinion in McDonnell v. United States, 136 S. 

Ct. 2355 (2016). McDonnell provided new limitations on 

the definition of “official acts” as used in the honest 

services fraud and bribery statutes under which Fattah and 

Vederman had been convicted. Id. at 2369–72. Fattah and 

Vederman both moved to set aside their convictions. The 

District Court “acknowledge[d] that under McDonnell our 

instructions to the jury on the meaning of official act 

turned out to be incomplete and thus erroneous.” JA103. 
56

But the Court held that “the incomplete and thus erroneous 

jury instruction on the meaning of official acts did not 

influence the verdict on the bribery counts” and upheld the 

verdict on Counts 16–18 and 22–23. JA107, 121.

Fattah, Vederman, and Bowser had more success 

with their other post-verdict motions. The District Court, 

in a thoughtful opinion, granted relief under Federal Rule 

of Criminal Procedure 29, acquitting Vederman of the 

RICO conspiracy (Count 1) and Fattah, Vederman, and 

Bowser of bank fraud, making false statements to a 

financial institution, and falsifying records (Counts 19, 20, 

and 21). JA37–139.

This appeal followed.8 The defendants raise a 

variety of challenges to their convictions. All defendants 

but Bowser challenge the District Court’s decision to 

dismiss Juror 12. Fattah and Vederman argue that the 

District Court erred in upholding the jury’s verdict on the 

bribery and honest services fraud counts in light of the 

Supreme Court’s decision in McDonnell. Fattah, Brand 

and Nicholas challenge the sufficiency of the evidence 

underlying the RICO conviction. Several of the defendants 

contend the District Court erred in its instruction on intent 

and by sending the indictment out to the jury. There are 

 8 Fattah, Brand, Vederman, and Nicholas each filed a 

timely notice of appeal, but Bowser did not challenge her 

convictions.
57

also several evidentiary challenges.9 The Government 

cross-appeals from the District Court’s judgment 

acquitting Fattah and Vederman on Counts 19 and 20, 

arguing that the District Court erred in interpreting the 

definition of a “mortgage lending business” under 18 

U.S.C. § 27. We address these arguments in turn.

We hold that the District Court erred in upholding 

the jury verdict in light of McDonnell, and we will 

therefore reverse and remand for retrial on Counts 16, 17, 

18, 22, and 23. We also hold that the District Court erred 

 9 Pursuant to Rule 28(i), “Fattah joins in the arguments of 

Herbert Vederman, Robert Brand, and Karen Nicholas to 

the extent their arguments on appeal apply to Mr. Fattah.” 

Fattah Br. 19 n.69. Federal Rule of Appellate Procedure 

28(i) provides that a defendant, “[i]n a case involving 

more than one appellant . . . may adopt by reference a part 

of another’s brief.” Here, Fattah’s decision to join fails to 

specify which of the many issues of his codefendants he 

believes worthy of our consideration. Rather, it appears 

that he presumes we will scour the record and make that 

determination for him. This type of blanket request fails to 

satisfy Rule 28(a)(5)’s directive requiring that the 

“appellant’s brief must contain . . . a statement of the 

issues presented for review.” Fed. R. App. P. 28(a)(5). We 

conclude that expecting the appellate court to identify the 

issues to be adopted simply results in the abandonment and 

waiver of the unspecified issues. See Kost v. Kozakiewicz, 

1 F.3d 176, 182 (3d Cir. 1993).
58

in acquitting Fattah and Vederman on Counts 19 and 20. 

Because the jury’s verdict was supported by the evidence, 

we will reinstate the convictions as to those counts. In all 

other respects, we will affirm the judgment of the District 

Court.

III. Juror Misconduct and Dismissal of Juror 1210

Defendant Fattah challenges the District Court’s 

decision to conduct an in camera inquiry into alleged juror 

misconduct and the ultimate dismissal of Juror 12.11 We 

reject both challenges. The record reveals credible 

allegations of juror misconduct and a sufficient basis to 

support the finding that Juror 12 violated his oath.

A. Investigation of Alleged Juror Misconduct

We first consider whether the District Court erred in 

its handling of the two notes from jurors. A trial court’s 

response to allegations of juror misconduct is reviewed 

under an abuse of discretion standard. United States v. 

Boone, 458 F.3d 321, 326 (3d Cir. 2006) (citing United 

States v. Resko, 3 F.3d 684, 690 (3d Cir. 1993)). We 

conclude that the District Court did not abuse its discretion 

 10 The District Court had jurisdiction under 18 U.S.C. 

§ 3231. We have jurisdiction under 28 U.S.C. § 1291 and 

18 U.S.C. § 3742(a).

11 Vederman, Nicholas, and Brand adopt Fattah’s claim of 

reversible error concerning the dismissal of Juror 12.
59

in addressing the issues raised in the jurors’ notes to the 

Court.

Trial courts are afforded discretion in responding to 

allegations of juror misconduct. This is so because “the 

trial court is in a superior position to observe the ‘mood at 

trial and the predilections of the jury.’” Resko, 3 F.3d at 

690 (quoting United States v. Chiantese, 582 F.2d 974, 

980 (5th Cir. 1978)). But this discretion is not unlimited. 

Once the jury retires to deliberate, the confidentiality of its 

deliberations must be closely guarded. An accused is 

constitutionally entitled to be tried before a jury of his 

peers. As ordinary citizens, jurors are “expected to speak, 

debate, argue, and make decisions the way ordinary people 

do in their daily lives.” Pena-Rodriguez v. Colorado, 137 

S. Ct. 855, 874 (2017) (Alito, J., dissenting). To protect 

against intrusion into a defendant’s right to be judged only 

by fellow citizens, “the door to the jury room [is] locked.” 

Id. at 875.

In Boone, this Court considered the threshold for 

intervention by a trial judge who is presented with 

allegations of juror misconduct during the course of 

deliberations. 458 F.3d at 327. We recognized that “[i]t is 

beyond question that the secrecy of deliberations is critical 

to the success of the jury system.” Id. at 329. But that 

secrecy abuts a competing interest—the jury’s proper 

execution of its duties. That is, “a juror who refuses to 

deliberate or who commits jury nullification violates the 

sworn jury oath and prevents the jury from fulfilling its 
60

constitutional role.” Id. Recognizing these competing 

interests, we declined in Boone to adopt a sweeping 

limitation on a trial court’s ability to investigate 

allegations of misconduct during jury deliberations. See id.

Consistent with the standard applied at other stages of 

criminal proceedings, Boone teaches that “where 

substantial evidence of jury misconduct—including 

credible allegations of jury nullification or of a refusal to 

deliberate—arises during deliberations, a district court 

may, within its sound discretion, investigate the 

allegations through juror questioning or other appropriate 

means.” Id.

Fattah argues that the District Court had no basis to 

question any of the jurors. Fattah Br. 20. We disagree. In 

Boone, notes from the jury presented substantial credible 

evidence of misconduct. 458 F.3d at 330. Here, the initial 

note from the foreperson alleged that Juror 12 “refuse[d] 

to vote by the letter of the law,” would “not listen or reason 

with anybody,” and that he had “an agenda or ax to grind” 

with the Government. JA5916. The note contained 

allegations of both a refusal to deliberate and a suggestion 

of nullification. A refusal to deliberate is a violation of a 

juror’s oath. Boone, 458 F.3d at 329 (citing United States 

v. Baker, 262 F.3d 124, 130 (2d Cir. 2001) (“It is wellsettled that jurors have a duty to deliberate.”)). Moreover, 

nullification—a juror’s refusal to follow the law—is a 

violation of the juror’s sworn oath to render a verdict 

according to the law and evidence. See United States v. 

Thomas, 116 F.3d 606, 614–18 (2d Cir. 1997) (discussing 
61

both “benevolent” and “shameful” examples of juror 

nullification, but “categorically reject[ing] the idea that, in 

a society committed to the rule of law, jury nullification is 

desirable or that courts may permit it to occur when it is 

within their authority to prevent”). The second jury note, 

signed by nine jurors, supported the claim of misconduct 

by asserting that Juror 12 was “incapable of making 

decision[s]” and was “constantly scream[ing]” at the other 

jurors. JA5916–17. We conclude that the District Court 

did not abuse its discretion in deciding to initially question 

Juror 2, and subsequently, Jurors 12, 3, 6 and 1.

Fattah also challenges the scope of the District 

Court’s questioning. He argues that the rights to an 

impartial jury and to a unanimous verdict “would be 

rendered toothless if trial courts had free rein to question 

jurors during deliberations.” Fattah Br. 36. Indeed, we 

acknowledged the legitimacy of such a concern in Boone. 

Despite adopting a modest “credible allegations” standard 

for investigating misconduct, we “ke[pt] in mind the 

importance of maintaining deliberative secrecy.” Boone, 

458 F.3d at 329. Fattah asserts that the trial court’s 

questions to the five jurors were “intrusive and pointed” 

and “nothing like the questioning . . . approved in Boone.” 

Fattah Br. 38. But Fattah does not elaborate on how, in his 

view, the questions posed by Judge Bartle specifically 

intruded into deliberative secrecy.

To be sure, Judge Bartle’s questioning of each juror 

was more extemporaneous than the juror questioning in 
62

Boone. There, the district court asked a single juror four 

“concise and carefully-worded” questions. 458 F.3d at 

330. Judge Bartle’s voir dire of each of the five jurors took 

on a more conversational tone. We take no issue with that 

approach. The substance of the judge’s questions was 

limited and mirrored that of questions we deemed 

appropriate in Kemp. There, the court conducted three 

rounds of questioning. In the first round, each juror was 

asked:

(1) “Are you personally experiencing any 

problems with how the deliberations are 

proceeding without telling us anything about 

the votes as to guilt or innocence? If yes, 

describe the problem.” (2) “Are all the jurors 

discussing the evidence or lack of evidence?” 

(3) “Are all the jurors following the court’s 

instructions on the law?”

Kemp, 500 F.3d at 273. In the second and third rounds, 

each juror was asked:

(1) “Is there any juror or jurors who are 

refusing to deliberate?” (2) “Is there any juror 

who is refusing to discuss the evidence or 

lack of evidence?” (3) “Is there any juror who 

is refusing to follow the Court’s 

instructions?”

Id. at 274. Here, Judge Bartle began his voir dire of each 

juror by stating that he did not wish for the juror to discuss 
63

the merits of the case or to reveal the content of the 

deliberations that had taken place. He asked the jurors 

whether screaming was occurring, whether the jurors were 

discussing the evidence, whether Juror 12 was placing his 

hands on other jurors, and whether Juror 12 was unwilling 

to follow his instructions.

Fattah points to no specific question posed or topic 

discussed that was inappropriate, and we see little to no 

substantive difference between the questions here and 

those asked by the trial judge in Kemp. As in Kemp, “the 

District Court took care to limit its questions to appropriate 

matters that did not touch on the merits of the jury’s 

deliberation, and expressly informed each juror on 

multiple occasions that he or she should not reveal the 

substance of the deliberations.” Id. at 302 (citing United 

States v. Edwards, 303 F.3d 606, 634 n.16 (5th Cir. 2002)).

Fattah also argues that once the remarks of Juror 2 

and Juror 12 revealed no further evidence of misconduct, 

the court had no basis to question other jurors. Fattah 

Reply 19. Yet, our cases make clear that a trial court may, 

in its discretion, examine each juror. Kemp, 500 F.3d at 

302 (“We have recognized that there are times in which 

individual questioning is the optimal way in which to root 

out misconduct.”). Indeed, “the District Court must utilize 

procedures that will ‘provide a reasonable assurance for 

the discovery of prejudice.’” Id. (quoting Martin v. 
64

Warden, Huntingdon State Corr. Inst., 653 F.2d 799, 807 

(3d Cir. 1981)).12

Judge Bartle, a very able and experienced district 

judge, was in the best position to determine what type of 

inquiry was warranted under the circumstances. We 

conclude that his questioning of the five jurors was not an 

abuse of discretion. See id. at 302.

B. Dismissal of Juror 12

Fattah, joined by Vederman, Brand, and Nicholas, 

strongly contends that the District Court committed 

reversible error by dismissing Juror 12. “We review the 

dismissal of a juror for cause for abuse of discretion.” 

 12 Our cases do not suggest that a trial judge confronted 

with allegations that a jury’s deliberations are being 

obstructed by one of its members should always resort to 

interviewing jurors. Reinstructing the jury on its duty to 

deliberate will often be the better course at the first sign of 

trouble. Mere disagreement among jurors—even spirited 

disagreement—is no ground for intervention. 

Furthermore, intrusive or leading questions about the 

deliberative process may work against the twin goals of 

protecting that process and ensuring that jurors remain 

faithful to their oaths. We share the Eleventh Circuit’s 

preference of “err[ing] on the side of too little inquiry as 

opposed to too much.” United States v. Oscar, 877 F.3d 

1270, 1287 (11th Cir. 2017) (quoting United States v. 

Augustin, 661 F.3d 1105, 1133 (11th Cir. 2011)).
65

Kemp, 500 F.3d at 303. That deferential standard compels 

us to affirm.

Rule 23(b) of the Federal Rules of Criminal 

Procedure permits a trial court to excuse a deliberating 

juror for good cause. See id. (citing Fed. R. Crim. P. 

23(b)). Good cause exists where a juror refuses to apply 

the law, refuses to follow the court’s instructions, refuses 

to deliberate with his or her fellow jurors, or demonstrates 

bias. See Kemp, 500 F.3d at 305–06; United States v. 

Oscar, 877 F.3d 1270, 1287 (11th Cir. 2017); Thomas, 116 

F.3d at 617. Good cause does not exist when there is 

reasonable but sustained disagreement about how a juror 

views the evidence. The courts of appeals are emphatic 

that trial courts “may not dismiss a juror during 

deliberations if the request for discharge stems from 

doubts the juror harbors about the sufficiency of the 

government’s evidence.” Kemp, 500 F.3d at 303 (quoting 

United States v. Brown, 823 F.2d 591, 596 (D.C. Cir. 

1987)); see also Oscar, 877 F.3d at 1287 (same); United 

States v. Symington, 195 F.3d 1080, 1087 (9th Cir. 1999); 

Thomas, 116 F.3d at 622.

To reinforce a defendant’s right to a unanimous 

jury, we have adopted a high standard for juror dismissal. 

Kemp, 500 F.3d at 304 & n.26. “[D]istrict courts may 

discharge a juror for bias, failure to deliberate, failure to 

follow the district court’s instructions, or jury nullification 

when there is no reasonable possibility that the allegations 

of misconduct stem from the juror’s view of the evidence.” 
66

Id. at 304 (emphasis added). This “no reasonable 

possibility” standard is “by no means lax.” Id. Rather, “[i]t 

corresponds with the burden for establishing guilt in a 

criminal trial.” Id.

We first applied this standard in Kemp, but have not 

had occasion to do so since. There, the evidence 

supporting the district court’s removal decision was 

“overwhelming.” 500 F.3d at 304. Ten jurors separately 

and consistently reported that a juror was improperly 

biased, and did so only after three rounds of questioning 

and careful and correct instructions from the district court 

as to the distinction between appropriate skepticism and 

impermissible bias. Id. at 304–05; see id. at 275–76 

(district court’s instruction). The testimony also showed 

that the juror in question refused to deliberate or to discuss 

the evidence with her fellow jurors. Id. at 305.

Whether the evidence of misconduct in this case is 

as strong as that in Kemp is beside the point. After only 

four hours of deliberations, Juror 12 stated unequivocally 

to the courtroom deputy that he was “going to hang” the 

jury, and that it would be “11 to 1 no matter what.” 

JA5981–82 (emphasis added). These statements, coupled 

with the District Court’s finding that Juror 12 lacked 

credibility, provided a sufficient basis for Juror 12’s 

dismissal.

As grounds for excusing Juror 12, the District Court 

found that he refused to deliberate in good faith, “delayed, 

disrupted, impeded, and obstructed the deliberative 
67

process and had the intent to do so,” JA5995, and that he 

was “intent on . . . hanging this jury no matter what the law 

is, no matter what the evidence is.” Id. The District Court 

determined from this that Juror 12 had violated his oath as 

a juror and that no further instructions or admonitions 

could rehabilitate the juror. Id. The District Court based 

these findings on personal observation, including Juror 

12’s words and demeanor, and making the specific finding 

that Juror 12 was not credible. That finding is amply 

supported by the record.

In United States v. Abbell, 271 F.3d 1286, 1303 (9th 

Cir. 2001), the Ninth Circuit recognized that “the 

demeanor of the pertinent juror is important to juror 

misconduct determinations” because the “juror’s 

motivations and intentions are at issue.” That court 

emphasized, as we do, that a district judge is best situated 

to assess the demeanor of a juror. Id. Here, Juror 12 stated 

he could not recall putting his hand on another juror’s 

shoulder, while his fellow jurors’ testimony was consistent 

on this point. Juror 12 also failed, at first, to recall his 

troubling statements to the courtroom deputy despite 

having made those statements only the previous afternoon. 

When questioned a second time and asked directly about 

the statements, he admitted to saying that he would hang 

the jury but claimed he could not “really remember” 

saying “no matter what” the day before. JA5989–90. Juror 

12’s spotty recollection of the previous day’s events 

further supports the District Court’s finding that he was 

not credible.
68

Fattah argues that the credibility determination was 

not, by itself, a sufficient reason to dismiss the juror 

because the record demonstrates more than a reasonable 

possibility that the complaints about his conduct stemmed 

from Juror 12’s own view of the Government’s case. 

Fattah Reply Br. 11; Fattah Br. 25, 28. Fattah claims that 

the District Court abused its discretion by dismissing Juror 

12 “on the basis of, in effect, six words the juror 

purportedly said to the court’s deputy after he was verbally 

attacked by other jurors.” Fattah Br. 24. According to 

Fattah, the questioning of the other jurors “confirmed that 

there were no legitimate grounds for removing juror 12.” 

Id. at 26. We conclude otherwise.

“A district court’s finding on the question whether 

a juror has impermissibly refused to participate in the 

deliberation process is a finding of fact to which 

appropriate deference is due.” Baker, 262 F.3d at 130. 

While district courts must apply a high standard for juror 

dismissal, their underlying findings are afforded 

considerable deference on appeal. Kemp, 500 F.3d at 304 

(citing Abbell, 271 F.3d at 1302–03). We will reverse only 

if the decision to dismiss a juror was “without factual 

support, or for a legally irrelevant reason.” Abbell, 271 

F.3d at 1302 (citation omitted).

Here, the District Court had a legitimate reason for 

removing Juror 12. Refusal to deliberate constitutes good 

cause for dismissal. Although the judge did not expressly 

articulate the Kemp standard when he announced that he 
69

would dismiss Juror 12, he did acknowledge the “no 

reasonable possibility” standard in his discussion with 

counsel. The unmistakable import of the District Court’s 

statement from the bench is that there was no reasonable 

possibility that Juror 12’s intransigence was based on his 

view of the evidence. See Oscar, 877 F.3d at 1288 n.16.

Fattah contends that there is no record support for 

the finding that Juror 12 said “he was going to hang this 

jury no matter what.” Fattah Br. 29. To be sure, the 

courtroom deputy’s testimony is not that Juror 12 used the 

words “hang this jury” and “no matter what” in the same 

sentence. She testified that Juror 12 first stated “I am going 

to hang this jury,” then later stated “it is going to be 11 to 

1 no matter what.” JA5981–82. This is a distinction 

without a difference. Likewise, Fattah challenges the 

District Court’s finding that Juror 12 was determined to 

hang the jury “no matter what the law is” and “no matter 

what the evidence is.” Fattah Br. 29. Although there is no 

evidence that Juror 12 uttered the phrases “no matter what 

the law is” or “no matter what the evidence is,” the District 

Court was describing the import of Juror 12’s statements. 

This was not error.

Fattah expresses the concern that “[i]f jurors are 

asked the right questions or interrogated long enough, it 

would not be difficult for a trial court to elicit testimony 

from [a] majority [of] jurors that can be held up as 

evidence of a dissenting juror’s bias or refusal to 

deliberate.” Fattah Br. 22. He also worries that a group of 
70

jurors might have an incentive to rid themselves of a juror 

who holds a different view. Id. These are valid concerns—

but no basis existed for such concerns in this case. Juror 

12’s own words provided most of the support for his 

eventual dismissal. Furthermore, his statements were 

made early in the deliberations, in a complex case, before 

any juror could reasonably be expected to have reached 

final verdicts on the twenty-nine counts before the jury.

The able District Judge did not err in finding that

Juror 12 refused to deliberate and therefore violated his 

oath.

IV. The District Court’s Instructions Under 

McDonnell

On appeal, Fattah and Vederman renew their 

challenge to the jury instructions given on Counts 3, 16, 

17, 18, 22, and 23, concerning the meaning of the term 

“official act” as used in the bribery statute (pursuant to 

which both were convicted) and the honest services fraud 

statute (pursuant to which Fattah alone was convicted).

In light of the Supreme Court’s opinion in 

McDonnell v. United States, 136 S. Ct. 2355 (2016), 

released the week after the jury verdict, the District Court 

conceded that its instructions were incomplete and 

erroneous, at least as to Counts 16–18. Nevertheless, the 

District Court held that the erroneous jury instructions had 

not influenced the verdict on the bribery counts, and 

declined to set aside Fattah and Vederman’s convictions. 
71

As to Counts 16–18 and 22–23, we disagree, and will 

reverse the District Court’s judgment. The District Court’s 

judgment with respect to Count 3, which did not involve 

Vederman, will be affirmed. JA78–79.

A. The McDonnell Framework

In McDonnell, the Supreme Court interpreted the 

term “official act” as defined in 18 U.S.C. § 201(a)(3). 136 

S. Ct. at 2368. The statute defines an “official act” as “any 

decision or action on any question, matter, cause, suit, 

proceeding or controversy, which may at any time be 

pending, or which may by law be brought before any 

public official, in such official’s official capacity, or in 

such official’s place of trust or profit.” 18 U.S.C. 

§ 201(a)(3). The McDonnell Court distilled this definition 

into two requirements:

First, the Government must identify a 

“question, matter, cause, suit, proceeding or 

controversy” that “may at any time be 

pending” or “may by law be brought” before 

a public official. Second, the Government 

must prove that the public official made a 

decision or took an action “on” that question, 

matter, cause, suit, proceeding, or 

controversy, or agreed to do so.

136 S. Ct. at 2368. Applying this two-step test to Governor 

Robert McDonnell’s convictions, the Supreme Court 

concluded that “the jury was not correctly instructed on 
72

the meaning of ‘official act,’ ” and as a result, “may have 

convicted Governor McDonnell for conduct that is not 

unlawful.” Id. at 2375. Given that uncertainty, the Court 

“[could not] conclude that the errors in the jury 

instructions were ‘harmless beyond a reasonable doubt.’ ” 

Id. (quoting Neder v. United States, 527 U.S. 1, 16 (1999)). 

The Supreme Court, therefore, vacated Governor 

McDonnell’s convictions. Id.

McDonnell lays out a clear path for the Government 

to follow in proving that an accused has performed an 

“official act.” First, the Government must “identify a 

‘question, matter, cause, suit, proceeding or controversy’ 

that ‘may at any time be pending’ or ‘may by law be 

brought’ before a public official.” 136 S. Ct. at 2368 

(quoting 18 U.S.C. § 201(a)(3)). This first step is divided 

into two sub-components. In Step 1(A), the Government 

must “identify a ‘question, matter, cause, suit, proceeding 

or controversy.’ ” Id. Step 1(B) then clarifies that the 

identified “question, matter, cause, suit, proceeding or 

controversy” be one that “ ‘may at any time be pending’ or 

‘may by law be brought’ before a public official.” Id.

Under Step 1(A), a “question, matter, cause, suit, 

proceeding or controversy” must be “a formal exercise of 

governmental power that is similar in nature to a lawsuit 

before a court, a determination before an agency, or a 

hearing before a committee.” Id. at 2372. Importantly, “a 

typical meeting, telephone call, or event arranged by a 
73

public official” does not qualify as such a formal exercise 

of governmental power. Id. at 2368.

Step 1(B) then requires us to ask whether the 

qualifying “question, matter, cause, suit, proceeding or 

controversy” was one that “ ‘may at any time be pending’ 

or ‘may by law be brought’ before a public official.” Id.

As the McDonnell Court clarified, “ ‘[p]ending’ and ‘may 

by law be brought’ suggest something that is relatively 

circumscribed—the kind of thing that can be put on an 

agenda, tracked for progress, and then checked off as 

complete.” Id. at 2369; accord United States v. Repak, 852 

F.3d 230, 252 (3d Cir. 2017) (quoting McDonnell, 136 S. 

Ct. at 2369). By contrast, matters described at a high level 

of generality—for example, “[e]conomic development,” 

“justice,” and “national security”—are not sufficiently 

“focused and concrete.” McDonnell, 136 S. Ct. at 2369.

In McDonnell, the Court concluded that at least 

three questions or matters identified by the Fourth Circuit 

were sufficiently focused:

(1) whether researchers at any of Virginia’s 

state universities would initiate a study of [a 

drug]; (2) whether the state-created Tobacco 

Indemnification and Community 

Revitalization Commission would allocate 

grant money for the study of [a chemical 

compound]; and (3) whether the health 

insurance plan for state employees in 
74

Virginia would include [a specific drug] as a 

covered drug.

Id. at 2370 (internal quotations omitted) (quoting United 

States v. McDonnell, 792 F.3d 478, 515–16 (4th Cir. 

2015)). We provided guidance in the form of a fourth 

example in Repak, when we held that a redevelopment 

authority’s awarding of contracts was “a concrete 

determination made by the [redevelopment authority’s] 

Board of Directors.” 852 F.3d at 253.

Step 2 requires the Government to prove that the 

public official made a “decision” or took “an action” on 

the identified “question, matter, cause, suit, proceeding or 

controversy.” McDonnell, 136 S. Ct. at 2368. The 

McDonnell Court explained:

Setting up a meeting, hosting an event, or 

calling an official (or agreeing to do so) 

merely to talk about a research study or to 

gather additional information . . . does not 

qualify as a decision or action on the pending 

question of whether to initiate the study. 

Simply expressing support for the research 

study at a meeting, event, or call—or sending 

a subordinate to such a meeting, event, or 

call—similarly does not qualify as a decision 

or action on the study, as long as the public 

official does not intend to exert pressure on 

another official or provide advice, knowing 
75

or intending such advice to form the basis for 

an “official act.”

Id. at 2371. The Court further clarified:

If an official sets up a meeting, hosts an 

event, or makes a phone call on a question or 

matter that is or could be pending before 

another official, that could serve as evidence 

of an agreement to take an official act. A jury 

could conclude, for example, that the official 

was attempting to pressure or advise another 

official on a pending matter. And if the 

official agreed to exert that pressure or give 

that advice in exchange for a thing of value, 

that would be illegal.

Id.

Here, Fattah was charged with engaging in three 

categories of official acts, which we analyze in accordance 

with the McDonnell framework. In Counts 16–18 and 22–

23, Fattah is alleged to have set up a meeting between 

Vederman and the U.S. Trade Representative, attempted 

to secure Vederman an ambassadorship, and hired 

Vederman’s girlfriend, all in return for a course of conduct 

wherein Vederman provided things of value to Fattah.

In this case, as in McDonnell, the jury instructions 

were erroneous. We conclude that the first category of the 

charged acts—setting up a meeting between Vederman 
76

and the U.S. Trade Representative—is not unlawful, and 

that the second category—attempting to secure Vederman 

an ambassadorship—requires reconsideration by a 

properly instructed jury. The third charged act—hiring 

Vederman’s girlfriend—is clearly an official act. But 

because we cannot isolate the jury’s consideration of the 

hiring from the first two categories of charged acts, we 

must reverse and remand the judgment of the District 

Court.

B. The Kirk Meeting

We turn first to Fattah’s scheduling of a meeting 

between Vederman and the U.S. Trade Representative, 

Ron Kirk. Under McDonnell, “setting up a meeting . . . 

does not, standing alone, qualify as an ‘official act.’ ” 136 

S. Ct. at 2368. Fattah’s setting up the meeting between 

Vederman and Kirk was therefore not an official act, a 

concession implicit in the Government’s opening brief. 

See Gov’t Br. 32 (failing to mention the Kirk meeting as 

one of the “two categories” of allegedly “official acts”). 

But the jury was not properly instructed on this point. 

Without the benefit of the principles laid down in 

McDonnell, the jury was free to conclude that arranging 

the Kirk meeting was an official act—and it may have 

done so. The District Court’s erroneous jury instructions, 

therefore, cannot survive harmless error review.

In a footnote in its brief to this Court, the 

Government argues that evidence about the Kirk meeting 

was offered only “because it established the strength of 
77

Vederman’s desire to be an ambassador” and not because 

the Government was attempting to establish the meeting 

as an independent official act. Id. at79–80 n.6. But the 

record undercuts the Government’s post hoc justification.

The indictment, provided to the jury in redacted 

form for use in its deliberations, lists Fattah’s setting up 

the Kirk meeting as an official act under the heading 

“FATTAH’s Official Acts for VEDERMAN.” JA494. 

Under this heading are three distinct subheadings: 

(1) “The Pursuit of an Ambassadorship,” (2) “The Pursuit 

of Another Executive Branch Position,” and (3) “Hiring 

the Lobbyist’s Girlfriend to the Congressional Staff.” 

JA494–95. The second subheading, “The Pursuit of 

Another Executive Branch Position,” describes the 

arrangement of the Kirk meeting. Quite clearly, then, this 

three-part structure demonstrates that setting up the Kirk 

meeting was one of three distinct categories of official acts 

alleged by the Government.

Although there is some support for the 

Government’s argument that evidence of the Kirk meeting 

was presented at trial only to establish the extent of 

Vederman’s interest in becoming an ambassador, JA827, 

852–53 (mentioning the Kirk meeting in close proximity

to references to Fattah’s attempts to secure Vederman an 

ambassadorship), it is undermined by language in the 

redacted indictment itself, and by the way in which the 

Government presented its case at trial as a “pattern” of 

connected acts.
78

The redacted indictment, for example, refers to the 

Kirk meeting as “The Pursuit of Another Executive 

Branch Position.” JA495 (emphasis added). The use of the 

word “Another” strongly suggests that evidence about the 

Kirk meeting was not merely evidence of Fattah’s attempt

to secure Vederman an ambassadorship, but was also 

evidence of a separate and distinct attempt to secure 

Vederman a position on a federal trade-related 

commission. The redacted indictment also notes that “[i]n 

or around May 2011, with little progress made on securing 

an ambassadorship for VEDERMAN, FATTAH turned 

towards obtaining for VEDERMAN an appointment in the 

Executive Branch to a federal trade commission.” Id.

(emphasis added). The words “turned towards,” taken 

literally, clearly convey that arranging the Kirk meeting 

was presented as distinct from Fattah’s efforts to secure 

Vederman an ambassadorship.

The District Court denied Fattah and Vederman a 

new trial on Counts 17 and 18, referring to evidence of the 

Kirk meeting as “de minimis” and noting that “Kirk’s 

testimony during this lengthy trial lasted a mere sixteen 

minutes.” JA97 n.14. In the District Court’s view, 

evidence of the Kirk meeting “played no role in the 

outcome” of the case. Id. Considering the record in light 

of McDonnell, we are not so sure.

Although it is possible that evidence of the Kirk 

meeting played a minor role at trial when compared to the 

other acts on which the Government presented evidence, 
79

the redacted indictment suggests that the Kirk meeting was 

a significant part of the Government’s case. The 

indictment dedicates five paragraphs to describing the 

Kirk meeting, but just three paragraphs to describing the 

hiring of Vederman’s girlfriend—a hiring that, as we 

explain below, is clearly an official act. JA495–96. While 

neither the number of minutes used at trial nor the number 

of paragraphs contained in an indictment is a dispositive 

unit of measurement for determining the significance of 

evidence, we conclude that the District Court’s erroneous 

jury instructions pertaining to the Kirk meeting were not 

harmless.

We conclude, in accordance with McDonnell, that 

Fattah’s arranging a meeting between Vederman and the 

U.S. Trade Representative was not itself an official act. 

Because the jury may have convicted Fattah for conduct 

that is not unlawful, we cannot conclude that the error in 

the jury instruction was harmless beyond a reasonable 

doubt, and we must vacate and remand the convictions of 

Fattah and Vederman as to Counts 16, 17, 18, 22 and 23.

C. Fattah’s Efforts to Secure Vederman an 

Ambassadorship

The nature of Fattah’s efforts to secure Vederman 

an ambassadorship is less clear, and presents a closer 

question than the Kirk meeting. We ultimately conclude 

that the question warrants remand so that it may be 

answered by a properly instructed jury. On remand, the 

jury must decide whether Fattah’s conduct constituted a 
80

“decision” or “action” under Step 2 of the McDonnell 

analysis.

At the outset, it is clear to us that, under Steps 1(A) 

and 1(B), a formal appointment of Vederman as an 

ambassador would qualify as a “matter” that “may at any 

time be pending” before a public official. The formal 

appointment of a particular person (Vederman), to a 

specific position (an ambassadorship), constitutes a matter 

that is sufficiently focused and concrete. The formal 

appointment of an ambassador is a matter that is “pending” 

before the President—the constitutional actor charged 

with nominating ambassadors—as well Senators, who are 

charged with confirming the President’s ambassadorial 

nominations. U.S. Const. art. II § 2 (“[H]e shall nominate, 

and by and with the Advice and Consent of the Senate, 

shall appoint Ambassadors . . . .”). It is beyond cavil that 

the formal appointment of an ambassador satisfies both 

sub-components of McDonnell’s Step 1.

Turning to Step 2, we consider whether Fattah’s 

efforts to secure Vederman an ambassadorship qualify as 

making a “decision” or taking “an action” on the identified 

“matter” of appointment. McDonnell, 136 S. Ct. at 2368.

Although those efforts—three emails, two letters, and one 

phone call—do not themselves qualify as a “question, 

matter, cause, suit, proceeding, or controversy” under 

McDonnell’s Step 1, they may nonetheless qualify as the 

making of a “decision” or taking “an action” on the 

identified matter of appointment. Id.
81

McDonnell’s Step 2 requires us to determine 

whether Fattah’s efforts qualify as permissible attempts to 

“express[] support,” or impermissible attempts “to 

pressure or advise another official on a pending matter.” 

Id. at 2371. At trial, the jury was not instructed that they 

had to place Fattah’s efforts on one side or the other of this 

divide. The jury might even have thought they were 

permitted to find Fattah’s efforts—three emails, two 

letters, and one phone call—to themselves be official acts, 

rather than a “decision” or “action” on the properly 

identified matter of appointment. Such a determination 

would have been contrary to the dictates of McDonnell.

Faced with such uncertainty, we cannot assume the 

jury verdict was proper. Although the jury might not have 

concluded that Fattah’s efforts were themselves official 

acts, and although the jury might not have concluded that 

those efforts crossed the line into impermissible attempts 

“to pressure or advise,” we are unable to conclude that the 

jury necessarily did so. Nor can we, on the cold record 

before us, determine whether Fattah’s efforts to secure 

Vederman an ambassadorship crossed the line. 

Determining, for example, just how forceful a strongly 

worded letter of recommendation must be before it 

becomes impermissible “pressure or advice” is a factintensive inquiry that falls within the domain of a properly 

instructed jury. Should the Government elect to retry these 

counts after remand, the finder of fact will need to decide 

whether Fattah’s efforts constituted permissible attempts 

to “express[] support,” or impermissible attempts “to 
82

pressure or advise another official on a pending matter.” 

Id.

D. The Zionts Hiring

The third group of acts charged in the Fattah–

Vederman scheme involves Fattah’s decision to hire 

Vederman’s girlfriend, Alexandra Zionts, as a 

congressional staffer. We conclude that the hiring was an 

official act. A brief analysis of McDonnell’s two steps 

suffices to show why this is so.

Here, under McDonnell’s Step 1(A), the relevant 

“matter” is the decision to hire Zionts. Step 1(B) of the 

analysis is satisfied because the hiring decision was 

“pending” before Fattah himself. And that hiring was 

“focused and concrete,” “within the specific duties of an 

official’s position—the function conferred by the 

authority of his office.” Id. at 2369. Finally, McDonnell’s

Step 2 requires that the “Government . . . prove that the 

public official made a decision or took an action ‘on’ [the 

identified] question, matter, cause, suit, proceeding, or 

controversy, or agreed to do so.” Id. at 2368. Fattah’s 

decision to hire Zionts clearly satisfies that requirement. 

We therefore conclude that the hiring of Zionts was an 

official act under McDonnell.

Vederman concedes that the Zionts hiring was an 

official act. Oral Argument Transcript at 5–6. Fattah, for 

his part, maintains that “hiring someone for a routine, parttime, short-term position falls well outside [the] definition 
83

[of ‘official act’] and is nothing like a lawsuit, agency 

determination, or committee hearing, even if each shares 

the happenstance that federal funds will be used.” Fattah 

Reply Br. 25.

Fattah’s argument lacks traction. Official acts need 

not be momentous decisions—or even notable ones. 

Judges, for example, make “routine” evidentiary rulings 

every day, and yet it is beyond question that those rulings 

are official acts. In the realm of official acts, it is of no 

moment that Zionts provided only “part-time, short term” 

labor. When a public official hires an employee to work in 

his government office, he has engaged in an official act.

* * *

If we could conclude that the Zionts hiring was the 

only category of actions that the jury relied on when it 

found that Fattah performed an official act under Counts 

16–18 and 22–23, remand would not be necessary. But, as 

we have explained, we cannot rule out that the jury 

erroneously convicted Fattah and Vederman based on 

other actions that were not official acts under 

McDonnell.

13

 13 More specifically, the incomplete, and therefore 

erroneous, instructions could have led the jury to commit 

at least one of three mistakes. First, the jury could have 

improperly convicted Vederman and Fattah based on the 

Kirk meeting alone, or misunderstood the Kirk meeting to 
84

The Government argues that because the Zionts 

hiring was an official act, the effect of the erroneous jury 

instructions could be no more than harmless. The jury’s 

verdict, the Government contends, permits us to deduce 

that the jury necessarily concluded the Zionts hiring was 

an official act, and that this conclusion alone supported 

Fattah’s and Vederman’s convictions as to Counts 16–18 

and 22–23—regardless of whether the jury erroneously 

found any unofficial acts to be official acts. We disagree.

Fattah and Vederman objected to the definition of 

“official act” at trial. We thus apply the harmless error 

standard of review. McDonnell, 136 S. Ct. at 2375. The 

Government argues that because the jury convicted Fattah 

and Vederman of illegally laundering the proceeds of a 

“scheme to commit bribery” under Count 23, the jury 

found that the scheme must have encompassed only the 

Zionts hiring. JA531.That would mean that the jury did not 

conclude that the “scheme to commit bribery” included 

 

be a necessary component of an impermissible “pattern” 

of official acts. Second, the jury might have concluded that 

Fattah’s efforts to secure Vederman an ambassadorship 

were themselves official acts. Third, the jury might have 

concluded that Fattah’s efforts to secure Vederman an 

ambassadorship were merely attempts to “express[] 

support,” rather than to “exert pressure . . . or provide 

advice,” but nonetheless erroneously concluded that those

expressions of support were official acts. McDonnell, 136 

S. Ct. at 2371.
85

any acts that McDonnell now makes clear were unofficial. 

Yet the redacted indictment, jury instructions, and the fact 

that the Government presented its case under a “pattern” 

theory at trial compel us to reject the Government’s 

argument.

The very first sentence under Count 23 of the 

redacted indictment incorporates all three categories of 

“Overt Acts” contained within paragraphs “58 through 95 

of Count One.”14 All three of these categories fall under a 

general heading within the redacted indictment titled “The 

Bribery and Fraud Scheme [redacted].” JA494. The jury 

had before it instructions for Count 23 which referred to 

“the alleged bribery scheme involving an $18,000 

payment,” JA448 (emphasis added), and the redacted 

indictment which referred to “a scheme to commit 

bribery,” JA531 (emphasis added). The parallel language 

could well lead a rational jury to conclude that the relevant 

“scheme” included all three categories of acts listed under 

the general heading: “The Bribery and Fraud Scheme

[redacted].” JA494 (emphasis added).

 14 JA531. Paragraphs 58 through 95 of Count 1 refer to the 

three categories of allegedly official acts discussed above: 

(1) “The Pursuit of an Ambassadorship,” (2) “The Pursuit 

of Another Executive Branch Position,” and (3) the 

“Hiring of the Lobbyist’s Girlfriend to the Congressional 

Staff.” JA494–95.
86

Like the redacted indictment and jury instructions, 

the Government’s trial arguments referred to patterns and 

a course of conduct, and stressed that the jury need not 

connect specific payments to particular official acts. In its 

closing argument to the jury, the Government stated that 

the alleged “scheme took place over a period of several 

years. Over and over again you’re going to see the same 

pattern.” JA5383 (emphasis added). Then, in its rebuttal 

argument, the Government went out of its way to 

explicitly distinguish its “pattern” theory from an 

alternative theory that would have directly connected 

individual payments to individual acts. As the prosecutor 

argued to the jury:

Ms. Recker appears to argue that each thing 

of value must coincide with some specific 

official act, but that is not the law and that is 

not what Judge Bartle is going to instruct you. 

Instead what he will tell you is that the 

government is not required to prove that 

Vederman intended to influence Fattah to 

perform a set number of official acts in return 

for things of value so long as the evidence 

shows a course of conduct of giving things of 

value, things of value to Fattah in exchange 

for a pattern of official acts favorable to 

Vederman. In other words a stream of 

benefits. These for those, not this for that.
87

JA5715–16 (emphases added). In closing to the jury, the 

Government made several other references to this 

“pattern” theory,15 and the District Court referred to this 

“pattern” theory in its instructions to the jury. As Judge 

Bartle instructed:

[I]t is not necessary for the government to 

prove that a defendant intended to induce a 

public official to perform a number of official 

acts in return for things of value.

So as long as the evidence shows a 

course of conduct of giving things of value to 

a public official in exchange for a pattern of 

official acts favorable to the giver.

JA5833–34 (emphasis added). On appeal, the Government 

changes course, asking us to assume that the jury ignored 

these repeated references to a “pattern of official acts” and 

 15 See, e.g., JA5389 (“And the exchange of an official act 

for a thing of value is called a bribe. There’s the pattern. 

Fattah needs money, Vederman gets an official act.”); JA 

5393 (“That’s why you see the pattern over and over again. 

Fattah needs money, Vederman gets an official act.”); 

JA5400 (“The same pattern we saw over and over again. 

Fattah needs money, Vederman gets an official act.”); 

JA5409 (“[Y]ou know that these were bribes because of 

the pattern you saw over and over and over again. Fattah 

needs money, Vederman gets an official act, that makes 

these things a bribe.”).
88

instead considered the Zionts hiring and Vederman’s 

$18,000 payment to Fattah as an isolated quid pro quo. 

This is an invitation to speculate, and we decline to do so.16

The jury began its deliberations accompanied by a copy of 

the redacted indictment which alleged a pattern of official 

acts, consisting of any combination of three categories of 

acts: pursuing an ambassadorship, arranging the Kirk 

meeting, and hiring Zionts. In light of the erroneous 

instructions, and because only one category clearly 

 16 Providing some support to the Government’s ultimately 

unconvincing argument that the jury considered the Zionts 

hiring and $18,000 payment in isolation, we note that the 

redacted indictment does mention those two events sideby-side in paragraph 78 of the indictment’s Part V. JA497 

(“On January 13, 2012, VEDERMAN wired $18,000 to 

FATTAH, and six days later, on January 19, 2012, 

BOWSER emailed VEDERMAN’s girlfriend, A.Z., 

welcoming her as a new employee to FATTAH’s 

Congressional Staff.”). But although paragraph 78 

mentions the $18,000 wire transfer and the Zionts hiring 

in the same breath, paragraph 78 does not instruct the jury 

to connect these two events apart from the rest of the 

evidence presented at trial. In light of the other instructions 

and arguments indicating that the jury should not consider 

the Zionts hiring in isolation, but instead should consider 

the hiring as one part of a three-part scheme, paragraph 78 

is not sufficient to avoid a reversal and remand on the 

convictions of Fattah and Vederman as to Counts 16–18 

and 22–23.
89

qualifies as an “official act,” the jury’s deliberations were 

fraught with the potential for McDonnell error. We will 

vacate the convictions of Fattah and Vederman as to 

Counts 16, 17, 18, 22, and 23, and remand to the District 

Court.

E. Vederman’s Sufficiency Challenge to Counts 16–18 

and 22–23

Vederman argues that there is insufficient evidence 

to support a conviction, even if a jury were properly 

instructed under McDonnell. Specifically, Vederman 

argues that there is insufficient evidence to convict him 

and Fattah, after remand, on Counts 16–18 and 22–23 

because “[a]t least seven of the eight alleged ‘official acts’ 

were, as a matter of law, not official at all.” Vederman Br. 

35. As to the single act that Vederman implicitly concedes 

to be an official act—the Zionts hiring—Vederman argues 

that “[t]he only thing that even arguably associates” the 

Zionts hiring with Vederman was its timing in relation to 

Vederman’s sham purchase of the Fattahs’ Porsche. Id.

According to Vederman, “the undisputed chronology 

precludes any inference that Vederman conferred this 

benefit on his friend as an illegal bribe.” Id. (emphasis 

omitted). Vederman is wrong. Sufficient evidence was 

produced at trial to have allowed a properly-instructed jury 

to convict Fattah and Vederman of Counts 16–18 and 22–

23.

To begin with, even if the Zionts hiring had been the 

sole official act to survive this Court’s interpretation of 
90

McDonnell, there would still be sufficient evidence to 

convict Fattah and Vederman. Zionts did not receive 

written notice of her official hiring until six days after the 

sham Porsche purchase. Moreover, the jury would not be 

restricted to considering the chronology of the sham 

purchase alone. It would be free to consider Vederman’s 

entire course of conduct. Under the general heading 

“VEDERMAN’S Payments and Things of Value to 

FATTAH,” the redacted indictment not only refers to the 

$18,000 wire transaction from Vederman to Fattah as part 

of the sham Porsche purchase, but also to Vederman’s 

$3,000 payment for the college tuition of Simone Muller, 

Fattah’s live-in au pair, as well as thousands of dollars in 

payments made by Vederman for Chip Fattah’s college 

tuition. JA496–97.

And the Zionts hiring is not the only act to survive 

our application of McDonnell. As we explained, a jury 

could find that Fattah’s efforts to secure Vederman an 

ambassadorship—three emails, two letters, and a phone 

call—were an impermissible attempt to “pressure or 

advise” President Obama, Senator Casey, or both men.17

 17 Although Fattah’s efforts to secure Vederman an 

ambassadorship present a jury question that is not for us to 

answer on appeal, we note that not one of these efforts 

alone could qualify as an official act itself. See McDonnell, 

136 S. Ct. at 2372 (“Setting up a meeting, talking to 

another official, or organizing an event (or agreeing to do 

so)—without more—does not fit that definition of ‘official 
91

This means that a properly instructed jury on remand, 

presented with evidence of Fattah’s efforts to secure an 

ambassadorship for Vederman and evidence of the Zionts 

hiring, could find more than a single official act.

F. Blue Guardians

In addition to the charges arising from his dealings 

with Vederman, Fattah was charged in Count 3 with 

 

act.’ ”). The relevant question for a jury to consider on 

remand, then, is whether these actions constituted “a 

‘decision or action’ on a different question or matter”—to 

wit, the formal appointment of an ambassador. Id. at 2369 

(emphasis omitted).

Even though the emails, letters, and phone call are 

not, individually, official acts, it will be for a jury to decide 

if Fattah’s efforts to secure an ambassadorship for 

Vederman crossed the line from permissible “support” to 

impermissible “pressure or advice.” While we express 

doubt that some of Fattah’s efforts concerning the 

ambassadorship are, when considered in isolation, enough 

to cross that line, a properly instructed jury considering all 

of the facts in context might nonetheless conclude that 

other efforts—such as a hand-delivered letter to the 

President of the United States—indeed crossed that line. 

Further, a jury might find that in the aggregate, three 

emails, two letters, and a phone call crossed the line and 

therefore constituted a “decision or action” on the 

identified matter of appointment.
92

participating in a scheme with Lindenfeld to funnel money 

to a fraudulent nonprofit organization. In connection with 

this scheme, Fattah was convicted of conspiring to commit 

honest services fraud.

Fattah owed Lindenfeld nearly $100,000 for work 

performed on Fattah’s 2007 mayoral campaign. In lieu of 

repayment, Fattah suggested that Lindenfeld create an 

entity, later named Blue Guardians, to which Fattah would 

direct $15,000,000 in public funds by using his position as 

a member of the House Committee on Appropriations. 

Nothing in McDonnell requires us to upset Fattah’s 

conviction on Count 3.

Step 1(A) of our McDonnell analysis requires the 

Government to “identify a ‘question, matter, cause, suit, 

proceeding or controversy.’ ” 136 S. Ct. at 2368. Here, the 

“matter” is the appropriation of millions of dollars in 

public funds. See Repak, 852 F.3d at 253–54 (holding the 

awarding of redevelopment funds to be an official act). In 

particular, it was Fattah’s promise to perform this official 

act that was unlawful. As McDonnell makes clear:

[A] public official is not required to actually 

make a decision or take an action on a 

“question, matter, cause, suit, proceeding or 

controversy”; it is enough that the official 

agree to do so. The agreement need not be 

explicit, and the public official need not 

specify the means that he will use to perform 

his end of the bargain.
93

136 S. Ct. at 2370–71 (internal citations omitted). That 

Fattah took steps to actually carry out his promise (e.g., by 

drafting and sending a formal appropriations request on 

official congressional letterhead) is evidence of his illegal 

promise. See id. at 2371.

Step 1(B) requires the Government to establish that 

the “ ‘question, matter, cause, suit, proceeding or 

controversy’ . . . ‘may at any time be pending’ or ‘may by 

law be brought’ before a public official.” McDonnell, 136 

S. Ct. at 2368. Appropriating public funds was not only a 

matter that was pending before Fattah as a member of the 

Appropriations Committee, it was also a matter that was 

pending before the Chairman and Ranking Member of an 

Appropriations Subcommittee to whom Fattah ultimately 

sent a formal written request. See id. at 2369 (“[T]he 

matter may be pending either before the public official 

who is performing the official act, or before another public 

official.”). Appropriating millions of dollars in response to 

the Blue Guardians request is “focused and concrete,” and 

“the kind of thing that can be put on an agenda, tracked for 

progress, and then checked off as complete.” Id.

Given Fattah’s membership on the Appropriations 

Committee, this was “something within the specific duties 

of an official’s position—the function conferred by the 

authority of his office.” Id. Even if we were to assume, 

against all reason, that an appropriation is not “something 

within the specific duties” of either Fattah or the Chairman 

or Ranking Member of an Appropriations Subcommittee, 
94

Fattah’s formal request for an appropriation was 

something that Fattah had the authority to do. Like the 

Executive Director in Repak, who lacked authority himself 

to award redevelopment funds but could request such 

funds from the Board, Fattah used his position as a 

Congressman to formally request appropriations for the 

Blue Guardians. 852 F.3d at 254 (“Repak had the power 

to, and indeed did, make recommendations to the 

[redevelopment authority.

Step 2 of McDonnell requires the Government to 

“prove that the public official made a decision or took an 

action ‘on’ that question, matter, cause, suit, proceeding, 

or controversy, or agreed to do so.” 136 S. Ct. at 2368 

(emphasis added). Here, Fattah agreed to request an 

appropriation for a bogus purpose. Unlike Fattah’s letters, 

emails, and phone call seeking an ambassadorship for 

Vederman, there is no potential for the jury to have made 

a mistake when it found Fattah’s Blue Guardians promise 

unlawful.

Fattah argues that the Government presented “[n]o 

evidence . . . that would have allowed [the jury] to 

conclude that [he] made a decision or took an action, or 

could have done so, on the question whether Blue 

Guardians would receive a $15 million federal grant.” 

Fattah Br. 46. This argument misses the point. It was 

Fattah’s agreement to engage in the official act of formally 

requesting the appropriation that was illegal. See 

McDonnell, 136 S. Ct. at 2371.
95

Lindenfeld’s trial testimony provided sufficient 

evidence of Fattah’s illegal agreement. JA1694–96, 1954. 

Fattah’s letter provided additional evidence from which 

the jury could have concluded that Fattah illegally agreed 

to perform an official act.18 In short, the agreement itself

was illegal, and the Government provided sufficient 

evidence for the jury to conclude that the illegal agreement 

took place.

The Government’s evidence in support of the Blue 

Guardians scheme meets the requirements of McDonnell, 

and the Count 3 verdict will stand.

V. Sufficiency of the Evidence for the RICO 

Conspiracy Conviction

The jury found Fattah, Vederman, Brand, and 

Nicholas guilty of the RICO conspiracy charged in Count 

1 of the indictment, but acquitted Bowser. Vederman filed 

a post-verdict motion, and the District Court overturned 

his RICO conspiracy conviction.

 18 Despite Fattah’s protestation to the contrary, there is

evidence that Fattah took steps to carry out his official act. 

JA6432–33 (Letter from Congressman Fattah to House 

Appropriations Subcommittee members “request[ing] 

funding and support for the following projects and 

programs of critical importance,” including $3,000,000 

for “Blue Guardians”).
96

On appeal, Fattah, Brand, and Nicholas challenge 

the sufficiency of the evidence supporting their RICO 

conspiracy convictions. We “review[] the sufficiency of 

the evidence in the light most favorable to the government 

and must credit all available inferences in favor of the 

government.” United States v. Riddick, 156 F.3d 505, 509 

(3d Cir. 1998). If a rational juror could have found the 

elements of the crime beyond a reasonable doubt, we must 

sustain the verdict. United States v. Cartwright, 359 F.3d 

281, 286 (3d Cir. 2004), abrogated on other grounds by 

United States v. Caraballo-Rodriguez, 726 F.3d 418 (3d 

Cir. 2013) (en banc).

The indictment charged a RICO conspiracy in 

violation of 18 U.S.C. § 1962(d), which makes it 

“unlawful for any person to conspire to violate” § 1962(c). 

Section 1962(c) provides:

It shall be unlawful for any person . . . 

associated with any enterprise engaged in, or 

the activities of which affect, interstate . . . 

commerce, to conduct or participate, directly 

or indirectly, in the conduct of such 

enterprise’s affairs through a pattern of 

racketeering activity . . . .

18 U.S.C. § 1962(c).

In Salinas v. United States, 522 U.S. 52 (1997), the 

defendant was convicted of a § 1962(d) RICO conspiracy, 

but a jury acquitted him of the substantive RICO offense 
97

under § 1962(c). Id. at 55. The Supreme Court rejected 

Salinas’s contention that his conviction had to be set aside 

because he had neither committed nor agreed to commit 

the two predicate acts required for the § 1962(c) offense. 

Id. at 66. The Court declared that liability for a RICO 

conspiracy under § 1962(d), “unlike the general 

conspiracy provision applicable to federal crimes,” does 

not require proof of an overt act. Id. at 63. A conspiracy 

may be found, the Court explained, “even if a conspirator 

does not agree to commit or facilitate each and every part 

of the substantive offense. The partners in the criminal 

plan must agree to pursue the same criminal objective and 

may divide up the work, yet each is responsible for the acts 

of each other.” Id. at 63–64 (citations omitted). This means 

that, if a plan “calls for some conspirators to perpetrate the 

crime and others to provide support, the supporters are as 

guilty as the perpetrators.” Id. at 64. Thus, opting into and 

participating in a conspiracy may result in criminal 

liability for the acts of one’s co-conspirators. Smith v. 

Berg, 247 F.3d 532, 537 (3d Cir. 2001).

Accordingly, liability for a RICO conspiracy may 

be found where the conspirator intended to “further an 

endeavor which, if completed, would satisfy all of the 

elements of a substantive criminal offense, but it suffices 

that he adopt the goal of furthering or facilitating the 

criminal endeavor.” Salinas, 522 U.S. at 65. Because the 

substantive criminal offense here was conducting a 

§ 1962(c) enterprise, the government had to prove:
98

(1) that two or more persons agreed to 

conduct or to participate, directly or 

indirectly, in the conduct of an enterprise’s 

affairs through a pattern of racketeering

activity; (2) that the defendant was a party to 

or member of that agreement; and (3) that the 

defendant joined the agreement or conspiracy 

knowing of its objective to conduct or 

participate, directly or indirectly, in the 

conduct of an enterprise’s affairs through a 

pattern of racketeering activity.

United States v. John-Baptiste, 747 F.3d 186, 207 (3d Cir. 

2014).

In United States v. Turkette, 452 U.S. 576 (1981), 

the Supreme Court instructed that an enterprise is a “group 

of persons associated together for a common purpose of 

engaging in a course of conduct.” Id. at 583. The 

government can prove an enterprise “by evidence of an 

ongoing organization, formal or informal, and by evidence 

that the various associates function as a continuing unit.” 

Id. In Boyle v. United States, 556 U.S. 938 (2009), the 

Supreme Court established that an “association-in-fact 

enterprise must have at least three structural features: a 

purpose, relationships among those associated with the 

enterprise, and longevity sufficient to permit these 

associates to pursue the enterprise’s purpose.” Id. at 946. 

The structure necessary for a § 1962(c) enterprise is not 

complex. Boyle explained that an enterprise
99

need not have a hierarchical structure or a 

“chain of command”; decisions may be made 

on an ad hoc basis and by any number of 

methods—by majority vote, consensus, a 

show of strength, etc. Members of the group 

need not have fixed roles; different members 

may perform different roles at different 

times. The group need not have a name, 

regular meetings, dues, [or] established rules 

and regulations . . . .While the group must 

function as a continuing unit and remain in 

existence long enough to pursue a course of 

conduct, nothing in RICO exempts an 

enterprise whose associates engage in spurts 

of activity punctuated by periods of 

quiescence.

Id. at 948.

Another element of a substantive § 1962(c) RICO 

enterprise is that the enterprise must conduct its affairs 

through a pattern of racketeering activity. Section 1961 

defines racketeering activity to include various criminal 

offenses, including wire fraud, 18 U.S.C. § 1344, and 

obstruction of justice, 18 U.S.C. § 1511. See 18 U.S.C. 

§ 1961(1). A pattern of such activity “requires at least two 

acts of racketeering activity.” Id. § 1961(5). The 

racketeering predicates may establish a pattern if they 

“related and . . . amounted to, or threatened the likelihood 
100

of, continued criminal activity.” H.J. Inc. v. Nw. Bell Tel. 

Co., 492 U.S. 229, 237 (1989).

Here, the District Court denied the post-trial 

sufficiency arguments raised by Fattah, Brand, and 

Nicholas. It reasoned:

For a RICO conspiracy to exist, the 

conspirators must agree to participate in an 

enterprise with a unity of purpose as well as 

relationships among those involved. The 

evidence demonstrates that an agreement 

among Fattah, Brand, Nicholas, Lindenfeld, 

and Naylor existed for the overall purpose of 

maintaining and enhancing Fattah as a 

political figure and of preventing his standing 

from being weakened by the failure to be able 

to pay or write down his campaign debts. 

These five persons agreed to work together as 

a continuing unit, albeit with different roles.

The Government established that 

Fattah, Brand, and Nicholas conspired along 

with Naylor and Lindenfeld to conceal and 

repay the 2007 illegal $1,000,000 loan to the 

Fattah for Mayor campaign.

JA128–29. The District Court further determined that

[w]hile each member may not have been 

involved in every aspect of the enterprise, its 

activities were sufficiently structured and 
101

coordinated to achieve the purpose of 

maintaining and enhancing Fattah’s political 

standing and of preventing him from being 

weakened politically because of his 

campaign debts.

A RICO conspiracy also requires an 

agreement to participate in an enterprise with 

longevity sufficient to pursue its purpose. 

This was established. In May 2007 the illegal 

loan was obtained and continued through its 

repayment in January 2008 and into at least 

2014 when the last campaign report reducing 

a fake campaign debt to Naylor’s consulting 

firm was filed by Fattah.

JA131.

The defendants argue that the evidence is

insufficient to show either an enterprise for purposes of 

§ 1962(c) or an agreement as required for a § 1962(d) 

conspiracy. We disagree, and conclude that the District 

Court’s analysis is on the mark.

We begin by considering whether there was an 

agreement. The evidence showed that Fattah knew each 

member involved in the scheme to conceal the unlawful 

campaign loan. When Lindenfeld learned of the $1 million 

loan, he informed Fattah that it exceeded campaign 

finance limits. In short, the transaction was unlawful, and 

the two knew it. The transaction nonetheless went 

forward, disguised as a loan, with Lindenfeld executing 
102

the promissory note as Strategies’ officer and obligating 

Strategies to repay Lord $1 million. The concealment 

efforts continued as Lindenfeld funneled a substantial 

portion of the loan proceeds to Naylor for get-out-the-vote 

efforts. After the losing campaign, Lindenfeld spoke with 

Fattah and Naylor about accounting for the funds that had 

been spent. They decided not to include the amounts in the 

FFM campaign reports. Fattah instructed Naylor to 

prepare a fictitious invoice, and Naylor complied. The 

FFM campaign reports filed from 2008 to 2014 disclosed 

nothing about the unlawful $1 million loan. Instead, they 

falsely showed that Naylor’s consulting firm made yearly 

in-kind contributions of $20,000 in debt forgiveness, when 

in reality there was no debt to forgive.

As Lindenfeld fretted over repaying the $600,000 

balance of the Lord loan, Naylor assured him that Fattah 

had promised to take care of the repayment. And the 

evidence supports an inference that Fattah recruited both 

Nicholas and Brand in doing so. As EAA’s director, 

Nicholas could fund the repayment. Brand, through his 

company, Solutions, acted as the middleman: he received 

the payment from EAA pursuant to a fictitious contract, 

and then forwarded the balance due to Strategies pursuant 

to yet another fictitious contract. Nicholas and Brand 

continued in the spring and summer of 2008 to hide the 

fictitious agreement and the $600,000 payment to 

Lindenfeld to satisfy the Lord loan.
103

In short, this evidence shows that Fattah, 

Lindenfeld, Naylor, Brand, and Nicholas all agreed to 

participate in Fattah’s plan to conceal the unlawful 

campaign loan to maintain his political stature. Nicholas 

and Brand claim that they had no knowledge of the false 

campaign reporting aspect of the plan. But as Salinas

instructs, conspirators need not “agree to commit or 

facilitate each and every part of the” conspiracy. 522 U.S. 

at 63. Rather, they “must agree to pursue the same criminal 

objective and may divide up the work, yet each [be] 

responsible for the acts of each other.” Id. at 63–64. Thus, 

a conspirator may agree to “facilitate only some of the acts 

leading to the substantive offense” yet still be criminally 

liable. Id. at 65.

The evidence showed that a substantial amount of 

money was needed to repay Lord, and that the source of 

the repayment was EAA, a non-profit organization whose 

funds could be spent only for purposes consistent with the 

terms of the grantsit received. It also showed that Nicholas 

was presented with a sham contract to legitimize the 

EAA–Solutions transaction. We conclude that the 

evidence is sufficient to support an inference that Nicholas 

knew at the start that the plan was unlawful. Yet she still 

agreed to provide the requisite funds and to play a role in 

concealing the illegal campaign loan so that Fattah could 

maintain his political stature.

As to Brand, even if he did not know that false 

campaign reports were being filed, the evidence is 
104

sufficient to show he played a key role in the enterprise. 

From the outset, Brand worked to disguise the repayment 

of the Lord loan as the consideration in a sham contract 

between EAA and Solutions. He then arranged for the 

transfer of funds to Strategies in satisfaction of a 

contractual term in another purported business agreement 

between Solutions and Strategies. The evidence reveals 

that Brand was the point man in the effort to meet the 

January 31, 2008 deadline to repay the Lord loan, and it 

amply shows that Brand also agreed to participate in the 

plan to hide the illegal campaign loan and its repayment to 

benefit Fattah politically.

Fattah, Brand, and Nicholas attack their RICO 

conspiracy convictions on another front. They argue that 

those verdicts should be set aside because the evidence 

fails to show that the various schemes alleged in the 

indictment as part of the RICO conspiracy are connected. 

The RICO count, they assert, charges a hub-and-spoke 

conspiracy that is unconnected by a rim. In their view, 

Fattah is the hub, and the spokes consist of a series of 

independent schemes: the Vederman bribery scheme, the 

payment of the outstanding tuition debt of Fattah’s son 

Chip, the Blue Guardians plan, and the repayment of the 

illegal Lord loan to maintain Fattah’s political stature. 

They argue that, without a unifying rim, their actions 

cannot constitute an enterprise. Again, we disagree.

In In re Insurance Brokerage Antitrust Litigation, 

618 F.3d 300 (3d Cir. 2010), we concluded, in analyzing 
105

one of plaintiffs’ RICO claims, that the alleged hub-andspoke enterprise—comprised of broker hubs and insurer 

spokes—could not withstand a motion to dismiss because 

it did not have a unifying rim. Id. at 374. We explained 

that the allegations did “not plausibly imply concerted 

action—as opposed to merely parallel conduct—by the 

insurers, and therefore cannot provide a ‘rim’ enclosing 

the ‘spokes’ of these alleged ‘hub-and-spoke’

enterprises.” Id. Thus, the allegations did not “adequately 

plead an association-in-fact enterprise” because the huband-spoke conspiracy failed to “function as a unit.” Id.

That is not the case here. The evidence showed that 

Fattah, Brand, and Nicholas agreed to conceal the illegal 

Lord loan. Each acted for the common purpose of 

furthering Fattah’s political interests. In short, they 

engaged in concerted activity and functioned as a unit. The 

jury convicted Fattah, Brand, and Nicholas of the RICO 

conspiracy based on the racketeering activity of wire fraud 

and obstruction of justice to conceal the unlawful 

transaction. Because the evidence shows that Fattah, 

Lindenfeld, Naylor, Brand, and Nicholas agreed to protect 

Fattah’s political status by acting to maintain the secrecy 

of the unlawful Lord loan, the alleged lack of a unifying 

“rim” is not fatal to this RICO enterprise. What matters in 

analyzing the structure of this enterprise is that it 

functioned as a unit. Boyle, 556 U.S. at 945; In re Ins. 

Brokerage Antitrust Litig., 618 F.3d at 374. That “basic 

requirement” was met. Id.
106

We turn next to the contention that the evidence 

fails to establish other components of an enterprise. We 

conclude that much of the evidence supporting the 

existence of an agreement also shows that there was an 

association-in-fact enterprise.

Boyle made clear that an association-in-fact 

enterprise must have “a purpose, relationships among 

those associated with the enterprise, and longevity 

sufficient to permit these associates to pursue the 

enterprise’s purpose.” 556 U.S. at 946. The purpose, as we 

have repeatedly observed, was to maintain and preserve 

Fattah’s political stature by concealing the illegal loan and 

its repayment. Though informal, there were relationships 

among those associated with the enterprise. Fattah was at 

the center of this association and he directed its activity. 

He knew each of the association’s members, and the 

members knew each other (except, perhaps, for Nicholas, 

who may not have known Lindenfeld).19

 19 Nicholas’s lack of familiarity with Lindenfeld does not 

undermine her membership in this association-in-fact 

enterprise. We have previously explained that “[i]t is wellestablished that one conspirator need not know the 

identities of all his co-conspirators, nor be aware of all the 

details of the conspiracy in order to be found to have 

agreed to participate in it.” United States v. Riccobene, 709 

F.2d 214, 225 (3d Cir. 1983), abrogated on other grounds 

by Griffin v. United States, 502 U.S. 46 (1991).
107

The Government also adduced sufficient proof of 

the longevity component required for an enterprise. The 

scheme began in mid-2007, when Lord made the 

campaign loan, directing the proceeds of the loan to 

Strategies. From the outset, Fattah, Lindenfeld, and Naylor 

all knew they needed to conceal this illegal transaction. 

They began by fabricating an explanation for the source of 

the funds they spent on election day. SLA created a fake 

invoice for the campaign, showing a fictitious debt that 

Naylor could later forgive by fictitious in-kind 

contributions existing only on Fattah’s campaign finance 

reports.

The effort to disguise the Lord loan was not limited 

to filing false campaign reports. Nicholas and Brand, who 

joined the conspiracy a few months later than the other 

members, understood that they too had to make the 

fraudulent $600,000 payment by EAA to Solutions appear 

legitimate. Nicholas and Brand tried to disguise the sham 

contract as an ordinary transaction (even though it called 

for a six-figure upfront payment simply to support 

Solutions’ various projects), and they succeeded in 

keeping it out of the DOJ auditors’ view until August 

2008. The ruse continued as Solutions funneled the 

$600,000 payment to Strategies under the guise of another 

sham contract (which also required an upfront six-figure 

payment). The scheme then continued as Fattah submitted 

false FFM campaign reports from 2008 through 2014.
108

Finally, we consider whether the enterprise 

conducted its affairs through a pattern of racketeering 

activity, as required for a § 1962(c) enterprise. Wire fraud 

and obstruction of justice may constitute “racketeering 

activity” under § 1961(1). As the Supreme Court 

instructed in H.J. Inc., the “multiple predicates within a 

single scheme” must be related and “amount[] to, or 

threaten[] the likelihood of, continued criminal activity.” 

492 U.S. at 237. Here, the amount of the illegal loan to be 

concealed was substantial. The enterprise needed to write 

off the fictitious debt to Naylor’s consulting firm, and it 

was urgent that both the EAA–Solutions contract and the 

Solutions–Strategies contract be legitimized. We conclude 

the evidence was sufficient to establish that this enterprise 

conducted its affairs through a pattern of racketeering 

activity and that the predicate acts of wire fraud and 

obstruction of justice were related. The racketeering 

activity furthered the goals of maintaining the secrecy of 

this $1 million illicit campaign loan and of preserving 

Fattah’s political stature.

Nicholas contends that the evidence fails to 

establish a pattern of racketeering activity because the 

actions to which she agreed did not “extend[] over a 

substantial period of time” as H.J. Inc. requires. 492 U.S. 

at 242. That case indeed instructs that the continuity 

requirement of a pattern is a “temporal concept,” and that 

“[p]redicate acts extending over a few weeks or months” 

do not satisfy the continuity concept. Id. But the Supreme 

Court explained that continuity may also be established by 
109

showing that there is a “threat of continued racketeering 

activity.” Id. Here, the course of fraudulent conduct 

undertaken to secure and to conceal the $1 million Lord 

loan consisted of the creation of sham debts, fictitious 

contracts, and false accounting entries over the course of 

about a year. But because Fattah needed to appear able to 

retire his campaign debt, the enterprise needed to continue 

filing false campaign reports for several years, allowing 

the annual $20,000 in-kind debt forgiveness contributions 

to appear to satisfy Naylor’s fake $193,000 invoice. That 

evidence was sufficient to establish the requisite threat of 

continued criminal activity. See H.J. Inc., 492 U.S. at 242–

43.

We conclude that the Government met its burden in 

proving that Fattah, Brand, and Nicholas20 engaged in a 

RICO conspiracy in violation of § 1962(d).

 20 Nicholas also asserts, in passing, that that her conviction 

under § 1962(d) should be set aside because that statutory 

provision is unconstitutionally vague as applied to her. 

According to Nicholas, a person of ordinary intelligence 

would not know that her actions constituted an agreement 

to participate in a RICO enterprise. See United States v. 

Pungitore, 910 F.2d 1084, 1104–05 (3d Cir. 1990). To the 

contrary, a person of ordinary intelligence, who had been 

employed by a prominent politician and then became the 

CEO of a nonprofit organization which that politician had 

founded (and, to some extent, continued to direct), would 
110

VI. Variance from the Indictment and Sufficiency of 

the Evidence for Count 2

Brand and Nicholas challenge their convictions for 

conspiracy to commit wire fraud by arguing that the 

Government’s evidence at trial impermissibly varied from 

the indictment. Nicholas also challenges the sufficiency of 

the evidence to support her conviction for conspiracy to 

commit wire fraud. We address these contentions 

together.21

Count 2 of the indictment alleged a single 

conspiracy. JA277–79. Brand and Nicholas assert that the 

Government’s evidence at trial did not support the 

existence of a single conspiracy but instead showed two 

independent conspiracies, only one of which involved the 

two of them. According to Brand and Nicholas, the only

conspiracy with which they were involved ended more 

than five years before the Government charged them. That 

would mean that all their conduct falls outside the fiveyear limitations period for wire fraud conspiracy under 18 

U.S.C. § 3282.

 

realize that agreeing to participate with others in hiding an 

unlawful campaign loan of $1 million could constitute an 

unlawful RICO conspiracy.

21 In her briefing, Nicholas discusses variance in far less 

detail than Brand, so we refer primarily to Brand’s 

arguments. See Nicholas Br. 54–56. Her variance 

arguments fail for the same reasons that Brand’s fail.
111

“A conviction must be vacated when (1) there is a 

variance between the indictment and the proof presented 

at trial and (2) the variance prejudices a substantial right 

of the defendant.” Kemp, 500 F.3d at 287 (quoting United 

States v. Kelly, 892 F.2d 255, 258 (3d Cir. 1989)). We see 

no variance, and will affirm the District Court.

A variance exists “if the indictment charges a single 

conspiracy while the evidence presented at trial proves 

only the existence of multiple conspiracies.” Id. “We must 

determine ‘whether there was sufficient evidence from 

which the jury could have concluded that the government 

proved the single conspiracy alleged in the indictment.’” 

Id. (quoting Kelly, 892 F.2d at 258). Viewing the record in 

the light most favorable to the Government, we consider 

three factors: (1) “whether there was a common goal 

among the conspirators”; (2) “whether the agreement 

contemplated bringing to pass a continuous result that will 

not continue without the continuous cooperation of the 

conspirators”; and (3) “the extent to which the participants 

overlap in the various dealings.” Id. (quoting Kelly, 892 

F.2d at 259).

Brand argues that the Government failed to 

establish a common goal among the conspirators. To 

determine whether the conspirators shared a common 

goal, “we look to the underlying purpose of the alleged 

criminal activity” in a fairly broad sense. United States v. 

Rigas, 605 F.3d 194, 214 (3d Cir. 2010) (en banc). In 

Rigas, we described the common goal of the defendants as 
112

“enriching [themselves] through the plunder of [their 

corporate employer],” id., and we have similarly 

articulated the common goal in fairly general terms 

elsewhere. See United States v. Greenidge, 495 F.3d 85, 

93 (3d Cir. 2007) (“There was certainly evidence of a 

common goal among these co-conspirators: to make 

money by depositing stolen and altered corporate checks 

into business accounts.”); Kelly, 892 F.2d at 259 (“[T]he 

common goal of all the participants was simply to make 

money selling ‘speed.’”). Importantly, a common goal 

may exist even when “conspirators individually or in 

groups perform different tasks in pursuing the common 

goal,” and a single conspiracy may “attract[] different 

members at different times” or “involve[] different subgroups committing acts in furtherance of the overall plan.” 

United States v. Boyd, 595 F.2d 120, 123 (3d Cir. 1978).

Here, the indictment described the purpose of the 

unified conspiracy in Count 2 at length:

It was a purpose of the conspiracy to obtain 

an illegal campaign loan and to fraudulently 

repay that loan with hundreds of thousands of 

dollars of misappropriated charitable funds 

from Sallie Mae and federal grant funds from 

NASA which were intended for educational 

purposes.

. . . . It was further a purpose of the 

conspiracy to present FATTAH to the public 

as a perennially viable candidate for public 
113

office who honored his obligations to his 

creditors and was able to retire his publicly 

reported campaign debts.

. . . . It was further a purpose of the 

conspiracy to promote FATTAH’s political 

and financial goals through deception by 

concealing and protecting the conspirators’ 

activities from detection and prosecution by 

law enforcement officials and the federal 

judiciary, as well as from exposure by the 

news media, through means that included 

obstruction of justice and the falsification of 

documents, including Campaign Finance 

Reports, false invoices, contracts, and other 

documents and records.

JA277–78, ¶¶ 3–5.

Brand characterizes the evidence at trial as 

establishing two distinct conspiracies. The first he labels 

the “diversion of funds scheme,” covering the 

misappropriation of funds by Nicholas, Brand, 

Lindenfeld, and Fattah to repay the Lord loan. Brand Br. 

34. Brand calls the second conspiracy the “CFR scheme,” 

in which Fattah and Naylor filed the false campaign 

finance reports showing Naylor gradually forgiving a nonexistent debt. Id.

Brand argues that the only goal of the CFR scheme 

was to cover up how the funds from the illegal campaign 
114

loan were spent, a goal he distinguishes from that of the 

diversion of funds scheme, which he characterizes as a 

plan to cover up the repayment of the loan with stolen 

funds. He also argues that the evidence does not establish 

he was involved in, or even aware of, the false campaign 

finance reports filed by Fattah. In Brand’s view, that 

necessarily means the evidence showed two separate 

conspiracies.

In considering these arguments, we begin by noting 

that one conspiracy can involve multiple subsidiary 

schemes. Rigas, 605 F.3d at 214. It is true that the false 

campaign finance reports, in the narrowest sense, had the 

specific purpose of covering up how the illegal loan funds 

were used during the election. But the false campaign

finance reports were also filed in furtherance of a broader 

goal shared by the conspirators involved in repayment of 

the Lord loan. They sought to promote Fattah’s political 

and financial goals by preserving his image as a viable 

candidate and making him appear able to repay or 

otherwise service his campaign debts without resorting to 

illegal means in doing so. The two subsidiary schemes 

worked in concert in furtherance of this overarching goal, 

and both were directed at covering up how the loan was 

truly repaid. The “diversion of funds scheme” hid the 

illegal (but real) loan repayment through the use of fake 

contracts; the “CFR scheme” showed the seemingly legal 

(but fake) loan forgiveness installments through the 

creation of fake invoices and campaign finance reports. 

The existence of two concealment schemes acting in 
115

concert does not undermine the unity of the conspiracy of 

which they were both a part. We have no difficulty 

concluding that the false campaign finance reports and the 

concealed use of stolen funds to repay the Lord loan 

operated together in furtherance of a common goal.

As for Brand’s argument that he was unaware of the 

false campaign finance reports and therefore could not be 

a part of any conspiracy involving them, it is well-settled 

that “each member of the charged conspiracy is liable for 

the substantive crimes his coconspirators commit in 

furtherance of the conspiracy even if he neither 

participates in his co-conspirators’ crimes nor has any 

knowledge of them.” United States v. Bailey, 840 F.3d 99, 

112 (3d Cir. 2016) (citing Pinkerton v. United States, 328 

U.S. 640 (1946)). The exceptions to that rule allow a 

defendant to escape liability for a co-conspirator’s crime 

if: (1) “the substantive offense committed by one of the 

conspirators was not in fact done in furtherance of the 

conspiracy,” (2) “the substantive offense committed by 

one of the conspirators ‘did not fall within the scope of the 

unlawful project,’” or (3) “the substantive offense 

committed by one of the conspirators ‘could not be 

reasonably foreseen as a necessary or natural consequence 

of the unlawful agreement.’” Id. (quoting Pinkerton, 328 

U.S. at 647–48). There was, as we have concluded, a unity 

of purpose between the co-conspirators to further Fattah’s 

political and financial goals by secretly obtaining and 

repaying an illegal campaign loan with stolen funds. The 

filing of false campaign reports does not fit within any of 
116

the recognized exceptions to co-conspirator liability, as it 

was in furtherance of the conspiracy’s shared goal, within 

the scope of the agreement to conceal the loan, and 

foreseeable to Brand and Nicholas.

Neither Brand nor Nicholas briefed the other two 

factors we consider when determining whether the 

evidence impermissibly varied from the evidence, 

“whether the agreement contemplated bringing to pass a 

continuous result that will not continue without the 

continuous cooperation of the conspirators,” and “the 

extent to which the participants overlap in the various 

dealings.” Kemp, 500 F.3d at 287 (quoting Kelly, 892 F.2d 

at 258). The unified goal of promoting Fattah’s political 

career and maintaining secrecy surrounding the illegal 

loan and the misappropriated funds used to repay it 

required the continuous cooperation of the conspirators. 

Indeed, the efforts of several of them overlapped in every 

aspect of the scheme. And Lindenfeld and Fattah were, at 

a minimum, involved in some way in nearly every aspect 

of the origination of the loan, the false campaign finance 

reports, and the use of misappropriated funds to repay the 

loan. For his part, Naylor was involved in the use of the 

funds, the false campaign finance reports, and to a lesser 

extent, the repayment of the loan.

Brand (as part of his variance argument) and 

Nicholas (as part of her sufficiency argument) argue that 

the Government did not prove they agreed to conceal their 

actions, and thus the false campaign reports would not be 
117

sufficient to extend the duration of the conspiracy so that 

it fell within the statute of limitations. Acts of 

concealment, such as the false campaign reports, are not 

automatically “in furtherance” of a conspiracy. We must 

determine whether there was “an express original 

agreement among the conspirators to continue to act in 

concert in order to cover up, for their own self-protection, 

traces of the crime after its commission,” as opposed to “a 

conspiracy to conceal . . . being implied from elements 

which will be present in virtually every conspiracy case, 

that is, secrecy plus overt acts of concealment.” 

Grunewald v. United States, 353 U.S. 391, 404 (1957). If 

the indictment “specifically alleges a continuing 

conspiracy” to conceal the crime after the completion of 

the wire fraud, and such a conspiracy can be proven, the 

statute of limitations does not begin to run until the last

overt act of concealment. United States v. Moses, 148 F.3d 

277, 282 (3d Cir. 1998).

Here, the evidence shows that the conspirators 

expressly agreed to conceal the loan and its repayment. As 

an initial matter, Brand’s only role in the conspiracy was 

to cover up the use of stolen funds by (1) serving as an 

intermediary between Nicholas and Lindenfeld; and 

(2) agreeing to create false documentation (the contracts) 

with both EAA and Strategies for the sole purpose of 

disguising the payments and covering up the wire fraud 

conspiracy. Nicholas could simply have paid Lindenfeld 

herself (or paid Lord) if she and Brand had not agreed to 

conceal the crime from the start. Additionally, and as 
118

Brand acknowledges, the false campaign finance reports 

began before the loan was repaid, proving that 

concealment of the crime was contemplated and begun as 

a direct purpose of the conspiracy before Brand and 

Nicholas became involved in the repayment. Nicholas too 

agreed to conceal the repayment, as she implicitly 

acknowledged in her emails with Brand and Fattah. GSA2. 

Finally, when Lindenfeld briefly strayed from the 

conspiracy’s commitment to secrecy by mentioning the 

repayment in front of others who did not know of the 

scheme, Brand became “angry,” “took [Lindenfeld] out in 

the hallway,” and chastised him, saying that “[Lindenfeld] 

couldn’t say that sort of []thing” in front of other people. 

JA1670–71. We conclude that the evidence is consistent 

with the allegations in the indictment, which charge a 

single conspiracy consisting of an original agreement to 

conceal the illegal loan and its subsequent illegal 

repayment to further Fattah’s political career.

Nicholas makes several arguments in passing. She 

suggests that the District Court upheld the conviction after 

trial “on a theory not submitted to the jury.” Nicholas Br. 

51. This argument is, essentially, that the indictment and 

the District Court’s post-trial ruling described the 

conspiracy one way, but that the jury charge described the 

conspiracy differently. Nicholas argues that the jury was 

presented with the theory that the sole purpose of the false 

campaign reports under Count 2 was to “conceal[] the 

alleged scheme to defraud,” JA5849, rather than to support 
119

Fattah’s political career, as the District Court described the 

purpose after trial, see JA74.

Nicholas ignores that part of the jury charge which 

instructed that Count 2 required a finding “[t]hat two or 

more persons agreed to commit wire fraud as charged in 

the indictment.” JA5845 (emphasis added). The jury had 

access to the indictment, and as Nicholas points out, 

Nicholas Br. 45–46, the indictment outlines the offense in 

the same way the District Court later described it in its 

post-trial ruling. The District Court consistently described 

the count, and we see no reversible error.

Nicholas also argues that the conspiracy charged in 

Count 2 has an objective—“to ‘present Fattah’ as 

‘perennially viable’”—and that such an objective is not 

illegal. Nicholas Br. 53. But, of course, the jury was not 

instructed that it was illegal to be a Fattah supporter, or 

even to work on his campaign. The jury was charged 

specifically on the crime of wire fraud.

We conclude that there was no impermissible 

variance between the indictment and the Government’s 

evidence at trial, and that there was sufficient evidence to 

support the convictions. We will affirm the convictions of 

Brand and Nicholas for conspiracy to commit wire fraud 

under Count 2.
120

VII. The District Court’s Instruction to the Jury on 

the Meaning of Intent

Nicholas contends that the District Court 

improperly instructed the jury by using the disjunctive 

rather than the conjunctive at one point in its definition of 

intent. When providing its final charge to the jury, the 

District Court explained:

Certain of the offenses charged in the 

indictment require that the government prove 

that the charged defendant acted intentionally 

or with intent. This means that the 

government must prove either that (1), it was 

the defendant’s conscious desire or purpose 

to act in a certain way or to cause a certain 

result; or (2), the defendant knew that he or 

she was acting in that way or it would be 

practically certain to cause that result.

JA5787 (emphasis added). According to Nicholas, an 

accurate definition of intent required that the final “or” be 

an “and.” Nicholas argues that this was an error so 

grievous as to “effectively eliminate[] the intent element 

from each offense of conviction.”22 Nicholas Br. 26.

 22 The Comment to Third Circuit Model Criminal Jury 

Instruction 5.03 makes clear that the definition of intent 

encapsulates both “specific intent” (acting “purposely” or 

with “conscious object”) and “general intent” (acting 
121

Our review of whether a jury instruction stated the 

proper legal standard is plenary. United States v. Petersen, 

622 F.3d 196, 207 n.7 (3d Cir. 2010). At trial, Nicholas 

failed to object to this portion of the jury charge. 

Accordingly, our review must be for plain error. See 

United States v. Flores-Mejia, 759 F.3d 253, 258 (3d Cir. 

2014) (en banc).

To prevail on plain error review, Nicholas must 

establish that there was an error, that it was plain (i.e., clear 

under current law), and that it affected her substantial 

rights (i.e., whether there is a reasonable likelihood that 

the jury applied the challenged instruction in an 

impermissible manner). United States v. Olano, 507 U.S. 

 

“knowingly” or “with awareness”). Although Nicholas 

describes the alleged error as “essentially eliminating” the 

element of intent, we think Nicholas’s argument is better 

understood as a claim that the instruction given could have 

permitted a jury to conclude that she acted with only 

general intent (that she was aware of what she was doing), 

when her crimes require specific intent (that she had an 

illegal purpose). As her brief states, “[p]lainly she 

‘knowingly’ wrote checks from EAA to [Solutions] and 

made record entries about them; the question was whether 

she intended to defraud EAA and NASA, or to obstruct 

justice, by doing so.” Nicholas Br. 24. We cannot agree 

with her characterization that the instruction resulted in the 

“effective omission” of the intent element from the jury 

instructions.
122

725, 733–34 (1993); United States v. Dobson, 419 F.3d 

231, 239–40 (3d Cir. 2005). If these requirements are met, 

we may then exercise our discretion to address the error, 

but only if we conclude that the error seriously affected the 

fairness, integrity, or public reputation of the judicial 

proceeding. United States v. Andrews, 681 F.3d 509, 517 

(3d Cir. 2012) (quoting Johnson v. United States, 520 U.S. 

461, 467 (1997)). A failure to instruct the jury on a 

necessary element of an offense ordinarily constitutes 

plain error, unless the instructions as a whole otherwise 

make clear to the jury all the necessary elements of the 

offense. United States v. Stimler, 864 F.3d 253, 270 (3d 

Cir. 2017).

Nicholas acknowledges, as she must, that the 

instruction given was a verbatim recitation of Instruction 

5.03 of the Third Circuit’s Model Criminal Jury 

Instructions. She nonetheless contends that our Model 

Instruction is erroneous. Even if we were to accept 

Nicholas’s contention that the instruction is incorrect, a 

proposition we consider as highly doubtful, see Petersen, 

622 F.3d at 208 (“We have a hard time concluding that the 

use of our own model jury instruction can constitute error 

. . . .”), we conclude that, considering the instructions as a 

whole, the District Court clearly and specifically 

instructed the jury on the intent element as it applied to 

each of Nicholas’s charged crimes.

The disputed intent instruction was given at the 

beginning of the final charge, explaining the general 
123

meaning of the intent applicable to “[c]ertain of the 

offenses charged.”23 JA5787. The District Court went on 

to instruct the jury in specific detail on the elements of 

each of the crimes of which Nicholas was accused, 

 23 The introductory definition did not end with the 

language Nicholas cites. The District Court elaborated that 

acting in good faith is a complete defense to the charges:

The offenses charged in the indictment 

require proof that the charged defendants 

acted with criminal intent. If you find that a 

defendant acted in good faith that would be a 

complete defense to such a charge, because 

good faith on the part of the defendant would 

be inconsistent with his or her acting 

knowingly, willfully, corruptly, or with intent 

to defraud or intent to impede, obstruct, or 

wrongfully influence.

JA5788–89 (emphasis added). This instruction 

undermines Nicholas’s claim that the jury could have 

reasonably concluded that she “ ‘knowingly’ wrote 

checks” but did not “intend[] to defraud . . . or to obstruct 

justice[] by doing so,” Nicholas Br. 24, as this instruction 

leaves little room for doubt that good faith is at odds with 

“criminal intent.”
124

explaining also the intent element of each.24 See JA5791 

(describing the third element of the RICO conspiracy 

charge as: “the particular defendant and at least one other 

alleged conspirator shared a unity of purpose and the intent 

to achieve the objective of conducting or participating in 

the conduct of an enterprise’s affairs through a pattern of 

racketeering activity”); JA5823 (regarding wire fraud, 

instructing that the government must prove “[t]hat the 

defendant under consideration acted with the intent to 

defraud”); JA5838–39 (regarding obstruction of justice, 

instructing that the defendant must have acted “with the 

intent to impair the record, document, or object’s integrity 

or availability for use in an official proceeding,” and must 

have acted corruptly “with the purpose of wrongfully 

impeding the due administration of justice”); JA5860 

(explaining that falsification of records requires that “the 

defendant under consideration acted with the intent to 

impede, obstruct or influence the investigation or proper 

administration of a matter”). These instructions are 

consistent with both our Model Jury Instructions and our 

case law concerning the elements of these crimes. See 

Third Circuit Model Criminal Jury Instruction 6.18.1962D 

(RICO), 6.18.1343 (wire fraud), 6.18.1512A2 (obstruction 

of justice); United States v. Sussman, 709 F.3d 155, 168 

(3d Cir. 2013) (obstruction of justice); United States v. 

 24 Nicholas did not object to the knowledge and intent 

instructions when the District Court discussed each of the 

individual charges, and does not identify a disagreement 

with any specific instruction on any particular charge.
125

Moyer, 674 F.3d 192, 208–09 (3d Cir. 2012) (falsification 

of records); United States v. Pelullo (Pelullo I), 964 F.2d

193, 216 (3d Cir. 1992) (wire fraud).

The District Court also provided a separate 

definition of the knowledge element of each charge, 

illustrating the difference between knowledge and intent. 

See JA5793 (explaining that the evidence must show that 

a RICO defendant “knowingly agreed to facilitate or 

further a course of conduct, which if completed would 

include a pattern of racketeering activity”); JA5823 (wire 

fraud means that the defendant “knowingly devised a 

scheme to defraud a victim . . . by materially false or 

fraudulent pretenses”); JA5860 (falsification of records 

has as an element “[t]hat the defendant under 

consideration knowingly concealed, covered up, falsified 

or made false entries in a document or record”). These 

instructions made clear that knowledge and intent are 

separate considerations, undermining Nicholas’s 

contention that the jury was led to believe that “knowledge 

is sufficient to prove intent.” Nicholas Br. 24.

The District Court provided each member of the 

jury with more than 100 pages of instructions before 

deliberations began. Viewing those instructions as a 

whole, we are satisfied that the jury was apprised of the 

correct meaning of intent as an element of the crimes with 

which Nicholas was charged, as well as the distinction 

between knowledge and intent. We perceive no error, 
126

much less error that is plain, in the District Court’s 

instructions to the jury.25

VIII. Sending the Indictment to the Jury

At trial, Vederman, Nicholas, and Brand objected to 

the District Court’s decision to give the jury a redacted 

copy of the indictment to use during its deliberations. Only 

Nicholas and Brand raise this issue on appeal. In 

Nicholas’s view, sending the indictment to the jury 

unfairly prejudiced her because it contained unsupported 

allegations that she had obstructed federal agencies and 

referred to a nonexistent certification requirement for 

Sallie Mae funds. Brand argues that he was prejudiced by 

the indictment’s references to “schemes” and “fake” 

contracts, and because it mentioned Brand’s spouse and 

that she was a former member of Fattah’s congressional 

staff. Nicholas and Brand together assert that the 

indictment included legal theories on which the jury was 

not instructed. They contend that the indictment’s 

narrative of the Government’s case set out a roadmap that 

omitted any averments relating to the defense theory and 

allowed the Government to yet again present its case. To 

buttress that argument, Nicholas and Brand cite the 

testimony of Juror 12, who described the jury’s initial 

 25 Accordingly, we need not consider the merits of 

Nicholas’s argument that Model Criminal Jury Instruction 

5.03 is erroneous.
127

deliberations and alleged that the jurors viewed the 

indictment as evidence.

In United States v. Todaro, 448 F.2d 64, 66 (3d Cir. 

1971), we held that the decision to allow “jurors to have a 

copy of the indictment with them during their 

deliberations . . . is a matter within the discretion of the 

District Judge, subject to a limiting instruction that the 

indictment does not constitute evidence, but is an 

accusation only.” Subsequently, in United States v. 

Pungitore, 910 F.2d 1084, 1142 n.83 (3d Cir. 1990), we 

acknowledged that the District Court has the power to 

redact the indictment if doing so would be appropriate to 

avoid prejudice to the defendant. See also United States v. 

Roy, 473 F.3d 1232, 1237 n.2 (D.C. Cir. 2007) (noting that 

court may redact an indictment before submitting it to the 

jury).

While both Nicholas and Brand objected in general 

terms to the District Court’s decision to provide the 

indictment to the jury, they have not directed us to any 

specific request to redact the information they now claim 

is prejudicial. And the District Court provided a limiting 

instruction on four occasions during its charge, repeatedly 

emphasizing that the indictment was not evidence. 

JA5765, 5767, 5782, 5880. The Court instructed the jury 

on its duty to base its verdict “solely upon the evidence in 

the case.” JA5764. Just before the jury retired to 

deliberate, the Court reiterated that the purpose of the 
128

indictment is to set forth the charges, and that it is “merely 

an accusation.” JA5909.

“[J]uries are presumed to follow their instructions

. . . .” Richardson v. Marsh, 481 U.S. 200, 211 (1987). In 

our view, Juror 12’s assertion that the indictment was 

being considered evidence does not, standing alone, 

establish that his fellow jurors actually did so. We reject 

the notion that the jury, after hearing weeks of testimony 

and having viewed substantial documentary evidence, 

went on to ignore the Court’s limiting instruction 

concerning the indictment.26 Accordingly, we conclude 

 26 We acknowledge that our case law provides minimal 

guidance to district courts concerning the practice of 

sending an indictment to the jury for their use during 

deliberations. We are also aware that some courts have 

disapproved the practice of sending the indictment out 

with the jury. See United States v. Esso, 684 F.3d 347, 352 

n.5 (2d Cir. 2012); Roy, 473 F.3d at 1237 n.2. We 

emphasize that this practice is committed to the sound 

discretion of the district judge. Todaro, 448 F.2d at 66. In 

our view, such an exercise of a judge’s discretion should 

be informed by considering the nature of the case, the 

number of defendants, the length of the indictment, the 

extent of the factual recitation supporting the criminal 

charges, and most importantly, whether the indictment 

(especially if lengthy and fact-laden) will be useful to the 

jury, in light of the judge’s own carefully tailored jury 
129

that the District Court did not abuse its discretion in 

sending the indictment out to the jury.

IX. The District Court’s Evidentiary Rulings

Vederman, Nicholas, and Brand each challenge 

evidentiary rulings by the District Court. We conclude that 

none of these contentions warrants setting aside their 

convictions.

A. The District Court’s Application of Rule 404(b)

Vederman argues that the District Court misapplied 

Federal Rule of Evidence 404(b) when it excluded 

evidence of Vederman’s prior gift-giving.27 This Court 

reviews a district court’s application of Rule 404(b) for 

abuse of discretion. United States v. Daraio, 445 F.3d 253, 

 

instruction, as supplemented by a verdict slip. See Esso, 

684 F.3d at 352 n.5.

27 Although Rule 404(b) determinations are usually in 

response to attempts to introduce “bad” acts evidence, 

Vederman’s attempt to introduce “good” acts of giftgiving is properly analyzed under the same rule. Ansell v. 

Green Acres Contracting Co., 347 F.3d 515, 520 (3d Cir. 

2003) (“The evidence admitted in this case differs from 

garden variety Rule 404(b) matter because it is evidence, 

not of a prior bad act in a criminal case, but of a subsequent 

good act in a civil case. Nonetheless, this evidence is 

encompassed by the plain text of Rule 404(b) which 

addresses ‘other . . . acts,’ not just prior bad acts.”).
130

259 (3d Cir. 2006); Ansell v. Green Acres Contracting Co., 

347 F.3d 515, 519 (3d Cir. 2003). A trial court commits 

“[a]n abuse of discretion . . . when [the] district court’s 

decision rests upon a clearly erroneous finding of fact, an 

errant conclusion of law or an improper application of law 

to fact.” Pardini v. Allegheny Intermediate Unit, 524 F.3d 

419, 422 (3d Cir. 2008) (quoting P.N. v. Clementon Bd. of 

Educ., 442 F.3d 848, 852 (3d Cir. 2006)).

Federal Rule of Evidence 404(b) provides in part:

(b) Crimes, Wrongs, or Other Acts.

(1) Prohibited Uses. Evidence of a 

crime, wrong, or other act is not 

admissible to prove a person’s 

character in order to show that on a 

particular occasion the person 

acted in accordance with the 

character.

(2) Permitted Uses; Notice in a 

Criminal Case. This evidence may 

be admissible for another purpose, 

such as proving motive, 

opportunity, intent, preparation, 

plan, knowledge, identity, absence 

of mistake, or lack of accident.

Fed. R. Evid. 404(b)(1)–(2).
131

At trial, Vederman sought to present a witness from 

American University who would have testified that 

“Vederman agreed, on more than fifty instances, to 

financially assist students [at American] who needed help 

with tuition, book money, or travel funds to visit their 

families.” Vederman Br. 42 (emphasis omitted). 

According to Vederman, the testimony was relevant to 

refuting the Government’s argument that he agreed to 

guarantee the tuition expenses of Fattah’s au pair as a way 

of bribing the congressman. In excluding this evidence 

under Rule 404(b), the District Court stated at sidebar:

I sustain the government’s objection to 

calling a representative of American 

University to testify on behalf of Herbert 

Vederman.

In my view the testimony runs afoul of 

Rule 404(b)(1) of the Federal Rules of 

Evidence. I find it to be propensity evidence. 

He or she would be testifying about Mr. 

Vederman’s financial generosity with respect 

to students of American University.

The issue here is payment of partial 

tuition of a student at the Philadelphia 

University. I see no connection between the 

generosity at American University and the 

situation with Philadelphia University.
132

JA4459–60. Vederman argues that because the proposed 

evidence related to Vederman’s intent, and not solely his 

propensity to perform good acts, we should conclude that 

the District Court abused its discretion. We see no error in 

the District Court’s ruling.

Vederman challenges as arbitrary the District 

Court’s “assertion that support for American University 

students is too remote from support for Philadelphia

University students” such that it constitutes inadmissible 

evidence. Vederman Reply Br. 23. This distinction was far 

from arbitrary. Vederman may well have financially 

supported American University students because of 

connections he had to that school or to the D.C. 

community at large—connections Vederman did not have 

to Philadelphia University. And the excluded testimony 

appears to have described support for students Vederman 

did not previously know. By supporting Fattah’s au pair, 

Vederman was helping an employee of a man whom he 

knew quite well. JA889 (“[Fattah and Vederman] spent a 

lot of time together traveling back and forth to 

Washington, in the case of a death in the family attending 

certain ceremonies that were important, and above all 

spending time with each other and their families 

together.”). Vederman’s decision to help Fattah’s au pair, 

who wished to attend Philadelphia University, seems more 

like a departure from, rather than a continuation of, his 

pattern of support for American University students.
133

As the party seeking admission of evidence under 

Rule 404(b), Vederman bore “the burden of demonstrating 

its applicability” and “identifying a proper purpose.” 

United States v. Caldwell, 760 F.3d 267, 276 (3d Cir. 

2014). By failing to explain sufficiently why the factual 

distinctions discussed above were not material, Vederman 

failed to meet his burden. In particular, although 

Vederman argues that he offered evidence of his prior giftgiving to prove intent—“a proper non-propensity 

purpose”—he failed to show why the proposed testimony 

was “relevant to that identified purpose.” Id. at 277.28 As 

we noted in Ansell v. Green Acres Contracting, an 

employment discrimination case on which Vederman 

heavily relies, “[t]here is. . . no bright line rule for 

determining when evidence is too remote to be relevant.” 

347 F.3d at 525. As such, a district court’s determination 

under Rule 404(b) “will not be disturbed on appeal unless 

it amounts to an abuse of discretion.” Id. The District 

 28 Under Rule 404(b), “prior act evidence is inadmissible 

unless the evidence is (1) offered for a proper nonpropensity purpose that is at issue in the case; (2) relevant 

to that identified purpose; (3) sufficiently probative under 

Rule 403 such that its probative value is not outweighed 

by any inherent danger of unfair prejudice; and 

(4) accompanied by a limiting instruction, if requested.” 

United States v. Caldwell, 760 F.3d 267, 277–78 (3d Cir. 

2014).
134

Court did not abuse its discretion in excluding evidence of 

Vederman’s support for students at American University.

B. Evidentiary Rulings Regarding Nicholas’s Defense

Nicholas argues that the District Court rendered 

three erroneous evidentiary rulings that prejudiced her 

defense. We do not find any of her arguments convincing.

1. The EAA Board Minutes

In support of its theory that Nicholas defrauded 

EAA, the Government introduced minutes from EAA’s 

Board. Minutes from 2005 revealed that the Board limited 

Nicholas’s signing authority to $100,000. Minutes from 

December 2007, February 2008, and May 2008 failed to 

reference either the EAA–Solutions contract or the checks, 

drawn from EAA’s account for $500,000 and $100,000, 

that were purportedly paid pursuant to the contract. 

Nicholas contends that the Board minutes were 

erroneously admitted because they constituted improper 

hearsay which failed to satisfy either the exception for 

business records under Federal Rule of Evidence 803(6) 

or the absence of records exception under Federal Rule of 

Evidence 803(7). “We review the District Court’s 

evidentiary ruling[s] for abuse of discretion, but also 

‘exercise plenary review . . . to the extent [the rulings] are 

based on a legal interpretation of the Federal Rules of 

Evidence.’ ” Repak, 852 F.3d at 240 (citations omitted) 

(second alteration in original).
135

Applying those standards here,29 we conclude there 

was sufficient basis to admit exhibit EAA-48 under 

Federal Rule of Evidence 803(6) as a business record. 

Although allowing the prosecution to inquire over 

Nicholas’s earlier objection based on Federal Rule of 

Evidence 803(7) to the absence of any mention of the 

$500,000 check in the 2008 Board Minutes was error, it 

was not reversible error. Other evidence in the record 

overwhelmingly showed that Nicholas made the $500,000 

and $100,000 payments to Solutions with the requisite 

fraudulent intent. That evidence included the 2005 policy 

limiting Nicholas’s authority to approve expenditures to 

$100,000, the accountant’s testimony about the 

disbursement policy requiring the completion of a check 

request form for the issuance of a check, and Jones’ 

testimony that he never saw a request for the $500,000 

check. That evidence, coupled with Nicholas’s tendering 

of the upfront half-million dollar payment before the terms 

of the purported agreement had been finalized or executed, 

her failure to mention the $600,000 in payments to 

Solutions during her interview with FBI Agent 

 29 We note that the argument section of Nicholas’s brief on 

this issue specifically cited to the page in the record where 

exhibit EAA-48 was admitted without objection by any 

defense counsel. See Appellant’s Br. at 57 (citing JA4381-

82). Nonetheless, there was an earlier objection to the 

admission of exhibit EAA-48 that was preserved and that 

was referenced in a string citation elsewhere in Nicholas’s 

brief.
136

Dieffenbach, and her alteration of EAA’s general ledger 

to conceal the $100,000 payment, makes it “highly 

probable” that the jury would have reached the same 

result. See United States v. Friedman, 658 F.3d 342, 352 

(3d Cir. 2011). 

Nicholas also asserts that the Board minutes were 

unfairly prejudicial. We disagree. Any possible prejudice 

was minimized by the fact that the Board minutes make no 

reference to either the EAA–Solutions contract or to any 

financial matters whatsoever. Indeed, given these lacunae 

in the Government’s proof, a reasonable factfinder might 

well have concluded that the Board’s intention to limit 

Nicholas’s signing authority had not been implemented 

and that Nicholas had not concealed the contract from the 

Board.

2. Jones’ Memory Regarding Other Contracts

Nicholas next asserts that the District Court erred 

during her cross-examination of Board Chairman Jones by 

sustaining the prosecution’s objection to her inquiry into 

whether he remembered other contracts in excess of 

$100,000 being brought to the Board. See JA1386–87. The 

basis of the prosecution’s objection seemed to be that 

Nicholas’s line of inquiry was beyond the scope of the 

direct testimony. JA1387 (“I showed checks concerning 

what’s going on, not other programs.”); see Fed. R. Evid.

611(b). The District Court sustained the objection, 

declaring that “it has absolutely nothing to do with this 

case.” JA1387. Nicholas contends that if Jones did not 
137

recall whether other large contracts had been presented to 

the Board, his inability to recall the EAA–Solutions 

contract would have been “unremarkable rather than 

evidence of fraud or concealment.” Nicholas Br. 61.

We acknowledge that whether Jones remembered 

other large contracts requiring Board approval had some 

relevance under Rule 401. Yet any error by the District 

Court in prohibiting Nicholas’s counsel from pursuing this 

line of inquiry is harmless. Jones admitted that he did not 

know if the Board ever implemented the policy requiring 

its approval of contracts exceeding $100,000. He also 

conceded that the EAA Board focused less on the financial 

side of EAA than on its programs. JA1383–85. Nicholas 

could not have been prejudiced by the District Court’s 

ruling.

3. Exclusion of NOAA Evidence

Nicholas defended against the criminal charges 

arising out of the non-existent October 2012 conference 

by asserting that she acted in “good faith in spending the 

NOAA funds on EAA expenses,” Nicholas Br. 64, that the 

difference in the dates in the paperwork was not material, 

and that NOAA had received the benefits of the 

sponsorship because its logo was displayed on the signage 

used at the February conference. Nicholas succeeded in 

presenting testimony and introducing photographs that 

showed NOAA’s logo on the February 2012 annual 

conference bags, padfolios, and name tags. The Court 

excluded a photograph of a NOAA intern at the February 
138

2012 conference, other photographs of the February 

conference signage, and some checks that pertained to the 

February conference. Nicholas claims that her inability to 

introduce those exhibits frustrated her ability to present 

her good faith defense. We are not persuaded.

The photographs were excluded as cumulative, the 

sort of ruling to which we afford trial judges very broad 

discretion. See Fed. R. Evid. 403; United States v. 

Dalfonso, 707 F.2d 757, 762 (3d Cir. 1983). It was not 

error to exclude the student intern’s photograph. The 

conference brochure included photographs from previous 

conferences, and the witness from NOAA was unable to 

testify to the year the student served as an intern. Finally, 

the checks tendered for the travel expenses incurred for the 

February conference were excluded as irrelevant to 

whether Nicholas had a good faith belief that NOAA 

sponsored the October conference.

C. The Cooperating Witness’s Mental Health Records

During discovery, Brand learned that a cooperating 

witness was diagnosed with bipolar II disorder and was 

taking medication to treat that condition. Brand 

subpoenaed mental health records kept by the witness’s 

current and former psychiatrists in hopes of using those 

records to attack the witness’s memory, truthfulness, and 

credibility. The witness and the Government both filed 

motions to quash the subpoena, arguing that the witness’s 

mental health records were protected by the 

psychotherapist–patient privilege recognized by the 
139

Supreme Court in Jaffee v. Redmond, 518 U.S. 1 (1996). 

The Government also filed a motion in limine seeking to 

restrict the scope of cross-examination to prevent Brand 

from questioning the witness about his mental health.

Alongside his motion to quash, the witness 

voluntarily produced for the Court his mental health 

records. The Court concluded that the psychotherapist–

patient privilege would ordinarily apply to the mental 

health records, but that the privilege was not absolute, 

especially when invoked in response to a criminal 

defendant’s efforts to obtain through discovery evidence 

that is favorable to his case. Following the procedure set 

forth in Pennsylvania v. Ritchie, 480 U.S. 39 (1987), the 

District Court conducted an in camera review of the 

mental health records to determine if they contained 

material evidence—that is, evidence that would “give[]

rise to a reasonable probability that it [would] affect the 

outcome of the case.” JA149. The District Court found 

“nothing in the mental health records of the [witness] . . . 

material for this criminal action,” noting that “[t]he 

records reveal nothing that calls into question [the 

witness’s] memory, perception, competence, or veracity.” 

JA150. Accordingly, the Court entered an order granting 

the motions to quash the subpoena.

The District Court also granted the Government’s 

motion in limine and restricted the scope of crossexamination, ruling that “no reference may be made to [the 

witness’s] bipolar disorder or the medications he takes to 
140

manage it.” JA142, 156. The Court reasoned that bipolar 

disorder varied in its effects from person to person, and 

concluded that Brand had not shown that the effects of the 

disorder had any bearing on the witness’s credibility. The 

District Court ruled that cross-examination would not 

serve any valid impeachment purpose.

Brand claims that the District Court’s order ran 

afoul of the Due Process Clause of the Fifth Amendment 

and the Confrontation Clause of the Sixth Amendment. 

We review a district court’s rulings to quash a subpoena 

and to limit the scope of cross-examination for abuse of 

discretion. United States v. Tykarsky, 446 F.3d 458, 475 

(3d Cir. 2006); NLRB v. Frazier, 966 F.2d 812, 815 (3d 

Cir. 1992). Here, the District Court did not abuse that 

discretion.

1. The District Court’s Denial of Access to the Mental 

Health Records

In claiming that the District Court’s decision to 

review the mental health records in camera before ruling 

on their admissibility violated his rights under both the 

Fifth and Sixth Amendments, Brand specifically argues 

that his right to confront the witness was impeded because 

he was denied access to records he could have used to 

impeach the witness. This very argument was considered 

and rejected by a plurality of the Supreme Court in Ritchie, 

which noted that “the effect [of the argument] would be to 

transform the Confrontation Clause into a constitutionally 

compelled rule of pretrial discovery. . . . [T]he right to 
141

confrontation is a trial right, designed to prevent improper 

restrictions on the types of questions that defense counsel 

may ask during cross-examination.” 480 U.S. at 52. We 

follow the Ritchie plurality, and conclude that the 

Confrontation Clause did not require the District Court to 

grant Brand access to the witness’s mental health records.

Brand next challenges the District Court’s decision 

to quash the subpoena as a violation of the Fifth 

Amendment’s Due Process Clause. He concedes that 

Ritchie’s Due Process holding allowed the District Court 

to review the mental health records in camera without 

disclosing them to him. See id. at 59–60 (“A defendant’s 

right to discover exculpatory evidence does not include the 

unsupervised authority to search through [the 

Government’s] files. . . . We find that [the defendant’s] 

interest . . . in ensuring a fair trial can be protected fully by 

requiring that the [privileged] files be submitted only to 

the trial court for in camera review.”). Brand instead 

argues that the District Court abused its discretion by 

focusing on “irrelevant facts and spurious symptoms. . . . 

such as ‘hallucinations,’” and by “refus[ing] to consider 

evidence of cognitive impairment and memory issues.” 

Brand Br. 30. The record reveals, however, that the 

District Court reviewed the mental health records and 

determined that they “reveal[ed] nothing that calls into 

question [the witness’s] memory, perception, competence, 

or veracity.” JA150. This hardly amounts to a refusal to 

consider evidence of cognitive impairment or memory 

issues.
142

Brand also challenges the legal standard applied by 

the District Court, arguing that the court “focused solely 

on whether disclosure would ‘change the outcome’ of 

Brand’s trial,” Brand Br. 29 (quoting JA148), rather than 

considering “whether the ultimate verdict is one ‘worthy 

of confidence.’” Id. (quoting United States v. Robinson, 

583 F.3d 1265, 1270 (10th Cir. 2009)). Brand 

misleadingly quotes from the District Court’s opinion. The 

District Court considered, in accordance with Ritchie, 

“whether there is a reasonable probability that disclosure 

would change the outcome” of Brand’s trial, JA148 

(emphasis added), not whether disclosure would 

necessarily change the outcome. As articulated in Ritchie, 

a “‘reasonable probability’ is a probability sufficient to 

undermine confidence in the outcome.” 480 U.S. at 57 

(quoting United States v. Bagley, 473 U.S. 667, 682 (1985) 

(Blackmun, J.)). The District Court applied the correct 

standard.

2. The District Court’s Grant of the Motion in Limine

In granting the Government’s motion in limine, the 

District Court ruled that Brand could not “reference . . . 

[the witness’s] bipolar disorder or the medications he takes 

to manage it.” JA156. Yet that ruling placed no restriction 

on Brand’s ability to cross-examine the witness with 

respect to “his memory, competence, or truthfulness.” Id.

Brand argues, nevertheless, that his Sixth Amendment 

right “to be confronted with the witnesses against him” 

was violated. U.S. Const. amend. VI.
143

The Confrontation Clause protects a defendant’s 

right to cross-examine a witness with respect to any 

testimonial statements made by that witness. United States 

v. Berrios, 676 F.3d 118, 125–26 (3d Cir. 2012) (citing 

Crawford v. Washington, 541 U.S. 36, 51 (2004), and 

Davis v. Washington, 547 U.S. 813, 823–24 (2006)). But 

the scope of cross-examination is not unlimited, and “[a] 

district court retains ‘wide latitude insofar as the 

Confrontation Clause is concerned to impose reasonable 

limits on such cross-examination based on concerns about 

. . . harassment, prejudice, confusion of the issues, the 

witness’ safety, or interrogation that is repetitive or only 

marginally relevant.’” John-Baptiste, 747 F.3d at 211 

(quoting United States v. Mussare, 405 F.3d 161, 169 (3d 

Cir. 2005)). We review limitations on cross-examination 

for abuse of discretion, and reverse “only when the 

restriction ‘is so severe as to constitute a denial of the 

defendant’s right to confront witnesses against him and . . . 

is prejudicial to [his] substantial rights.’” Id. (alternation 

in original) (quoting United States v. Conley, 92 F.3d 157, 

169 (3d Cir. 1996)).

In United States v. Chandler, 326 F.3d 210, 219 (3d 

Cir. 2003), we analyzed whether a district court’s decision 

to limit cross-examination with respect to a witness’s 

motivation for testifying violated the Confrontation 

Clause. See also Mussare, 405 F.3d at 169; John-Baptiste, 

747 F.3d at 211–12. Consistent with Delaware v. Van 

Arsdall, 475 U.S. 673 (1986), we first concluded that “the 

exposure of a witness’ motivation in testifying is a proper 
144

and important function of the constitutionally protected 

right of cross-examination.” Chandler, 326 F.3d at 219–

20 (quoting Van Arsdall, 475 U.S. at 678–79). We also 

noted that the Confrontation Clause does not prevent a trial 

judge from imposing reasonable limits on crossexamination. Id. In reviewing a district judge’s imposition 

of such limitations, we apply a two-part analysis. As we 

have since described, “we inquire into: ‘(1) whether the 

limitation significantly limited the defendant’s right to 

inquire into a witness’s motivation for testifying; and 

(2) whether the constraints imposed fell within the 

reasonable limits that a district court has the authority to 

impose.’” John-Baptiste, 747 F.3d at 211–12 (quoting 

Mussare, 405 F.3d at 169).

The same analytical framework is appropriate when 

determining whether a restriction on the crossexamination of a witness with respect to his memory and 

perception violates the Confrontation Clause. See Davis v. 

Alaska, 415 U.S. 308, 316 (1974); Greene v. McElroy, 360 

U.S. 474, 496 (1959); United States v. Segal, 534 F.2d 

578, 582 (3d Cir. 1976). Memory and perception, like 

motivation for testifying, are central issues affecting the 

credibility of any witness, and unreasonable limitations on 

the right to cross-examine on those subjects cannot be 

countenanced. We therefore ask, paraphrasing Chandler: 

(1) whether the District Court’s decision to put the 

witness’s diagnosis and medications off limits

significantly impaired Brand’s right to inquire into the 

witness’s memory and perception; and (2) whether the 
145

ruling fell within the reasonable limits that the District 

Court has the authority to impose.

We conclude that the District Court did not err. As 

an initial matter, the District Court permitted Brand to 

cross-examine the witness about his memory and 

perception, and limited cross-examination only with 

respect to the witness’s bipolar disorder and the 

medications he was taking to treat that condition. Brand 

was free to question the witness about his memory and 

perception, and indeed did so. The restriction on asking 

the witness about his bipolar disorder was not a significant 

limitation of Brand’s right to inquire into the witness’s 

memory or perception. Moreover, as the District Court 

pointed out, Brand failed to show how inquiry into the 

witness’s bipolar disorder would be useful for 

impeachment purposes. See JA154.

Given that failure, the District Court’s limits on 

cross-examination were reasonable. The Court concluded, 

after reviewing the evidence submitted by Brand and the 

witness’s mental health records, that any mention of the 

witness’s bipolar disorder would “only be designed to 

confuse the jury or to stigmatize him unfairly because of a 

‘mental problem’ without any countervailing probative 

value.” JA155. The District Court did not abuse its 

discretion in limiting Brand’s cross-examination on a topic 

that would be far more prejudicial than probative. See 

Tykarsky, 446 F.3d at 476–77 (“[T]he District Court acted 
146

well within its discretion to restrict irrelevant and 

confusing testimony.”).

All of this is not to suggest that a witness’s mental 

health is always off limits. The appropriate course in any 

given case must be determined from the facts and 

circumstances surrounding that case and the witness’s 

particular condition. See United States v. George, 532 F.3d 

933, 937 (D.C. Cir. 2008) (“The days are long past when 

any mental illness was presumed to undermine a witness’s 

competence to testify. . . . [M]ental illness [is] potentially 

relevant in a broad[] range of circumstances . . . . [But] 

some indication is needed that a particular witness’s 

medical history throws some doubt on the witness’s 

competence or credibility.”). Here, Brand failed to show, 

through mental health records or otherwise, any 

particularized reason to doubt the credibility of the witness 

for medical reasons.

Brand states that the witness provided “the only

evidence offered” on the intent element of his conspiracy 

conviction and that he should therefore be entitled to 

unrestricted cross-examination. Brand Br. 12 n.3. Yet no 

matter the importance of a witness to any party, a district 

court may always place reasonable limits on crossexamination to avoid “harassment, prejudice, confusion of 

the issues, the witness’ safety, or interrogation that is 

repetitive or only marginally relevant.” John-Baptiste, 747 

F.3d at 211 (citation omitted).
147

We conclude that the District Court did not abuse 

its discretion in restricting the scope of Brand’s crossexamination of the cooperating witness.

X. The Government’s Cross-Appeal

The jury convicted Fattah, Vederman, and Bowser 

of bank fraud, 18 U.S.C. § 134430 (Count 19) and making 

false statements to a financial institution, 18 U.S.C. 

§ 101431 (Count 20). In response to post-trial motions, the 

District Court granted a judgment of acquittal on both 

counts under Fed. R. Crim. P. 29, concluding that the 

 30 “Whoever knowingly executes, or attempts to execute, 

a scheme or artifice . . . to defraud a financial institution 

. . . shall be fined not more than $1,000,000 or imprisoned 

not more than 30 years, or both.” The definition of 

“financial institution” for purposes of § 1344 is set forth at 

18 U.S.C. § 20, and includes “a credit union with accounts 

insured by the National Credit Union Share Insurance 

Fund” and “a mortgage lending business (as defined in 

section 27 of this Title).” 18 U.S.C. §§ 20(2), (10).

31 “Whoever knowingly makes any false statement or 

report, or willfully overvalues any land, property or 

security, for the purpose of influencing in any way the 

action of . . . a Federal credit union . . . any institution the 

accounts of which are insured by . . . the National Credit 

Union Administration Board . . . or a mortgage lending 

business . . . shall be fined not more than $1,000,000 or 

imprisoned not more than 30 years, or both.”
148

evidence was insufficient to establish that the Credit 

Union Mortgage Association (CUMA), the entity to whom 

Fattah, Vederman, and Bowser made the false statements, 

is a “financial institution,” or, more specifically, a 

“mortgage lending business” as defined in 18 U.S.C. § 27. 

The Government claims that, viewing the evidence in the 

light most favorable to it, the District Court erred and that 

CUMA is, indeed, a “mortgage lending business.” We 

agree. Because the evidence is sufficient to support the 

jury’s verdict, we will remand so Fattah and Vederman 

may be resentenced on these charges.32

A. CUMA is a Mortgage Lending Business

In reviewing the District Court’s post-verdict 

judgment of acquittal under Rule 29 of the Federal Rules 

of Civil Procedure, we consider whether the evidence, 

when viewed in a light most favorable to the government, 

supports the jury’s verdict. United States v. Dixon, 658 

F.2d 181, 188 (3d Cir. 1981). Our standard of review is the 

same as that applied by the District Court, and we must 

uphold the jury’s verdict unless no reasonable juror could 

accept the evidence as sufficient to support the defendant’s 

guilt beyond a reasonable doubt. United States v. 

Coleman, 811 F.2d 804, 807 (3d Cir. 1987).

 32 Because the Government did not file an appeal as to 

Bowser, the cross-appeal is limited to Fattah and 

Vederman. The judgment of acquittal as to Bowser is 

therefore unaffected by our ruling today.
149

Initially, the grand jury’s indictment alleged that 

CUMA is a financial institution because it is federally 

insured. JA302–03. At trial, however, the jury was 

instructed that CUMA could qualify as a financial 

institution either because it is federally insured or because 

it is a “mortgage lending business.” See JA111, 401–02. A 

“mortgage lending business” is “an organization which 

finances or refinances any debt secured by an interest in 

real estate, including private mortgage companies and any 

subsidiaries of such organizations, and whose activities 

affect interstate or foreign commerce.” 18 U.S.C. § 27.

At trial, CUMA’s president and CEO, Eddie Scott 

Toler, testified that CUMA is not federally insured. 

JA4235. The Government therefore attempted to prove 

that CUMA is a “mortgage lending business” by 

presenting evidence that CUMA funds mortgages and then 

sells them in a secondary market.

Toler also testified that CUMA is a “credit union 

service organization”—a for-profit company owned by 48 

credit unions, which serves small credit unions that do not 

have the infrastructure or in-house expertise to handle 

mortgage loans themselves. JA4235. According to Toler, 

“[CUMA] exclusively provide[s] First Trust Residential 

Mortgage loaning [sic] services, all the way from the 

origination of the mortgage loan through processing, 

underwriting, closing and access to the secondary market 

where—and we’re selling the mortgage loan on the 

secondary market.” JA4236–37. In jurisdictions in which 
150

CUMA is licensed,33 CUMA holds the mortgage for a 

limited period, generally from two to thirty days, and then 

sells the mortgage either to a partner credit union or on the 

secondary market. JA4240.

The District Court concluded that CUMA is not a 

“mortgage lending business” because “[t]he record is 

devoid of any evidence that CUMA finances or refinances 

any debt.” JA113. Concluding that CUMA “simply is a 

loan processor for various credit unions which do the 

financing or refinancing,” id., the District Court ruled that 

CUMA’s “activity does not constitute the financing or 

refinancing of any debt. CUMA is not the mortgagee. It is 

merely selling the debt instrument to a third party.” JA114.

We cannot agree with the District Court’s view of 

the evidence. Toler testified that in “Maryland, D.C., and

Virginia . . . all of the loans are closed in the name of 

CUMA.” JA4238–39. As Toler described it, CUMA 

borrows on a line of credit to fund the loan, and when the 

loan is sold, CUMA pays off its line of credit. JA4239–40. 

So contrary to the District Court’s assessment, the 

evidence, viewed in a light most favorable to the 

Government, shows that CUMA is indeed the 

mortgagee—at least during the time from closing until the 

loan is sold to a partner credit union or on the secondary 

market. The fact that CUMA funds the closing and then 

 33 CUMA is licensed in Maryland, Washington, D.C., and 

Virginia. JA4238.
151

holds the mortgage, even for a brief time, is sufficient to 

support a conclusion that CUMA is “an organization 

which finances or refinances any debt secured by an 

interest in real estate.” 18 U.S.C. § 27.

Fattah and Vederman attempt to refute the argument 

that CUMA engages in financing mortgages by focusing 

on Toler’s testimony that CUMA “doesn’t actually have 

any money to fund these mortgage loans.” JA4239; see 

Fattah Reply Br. 38, Vederman Reply Br. 36. But Toler 

testified that CUMA employs a credit line to borrow the 

funds necessary to close on mortgages. See JA4239. That 

CUMA incurs debt to finance mortgages hardly 

undermines a conclusion that CUMA finances mortgages. 

Indeed, it is the very nature of modern banking that 

financial institutions do not hold cash reserves equal to the 

full amount of their liabilities. See, e.g., Timothy C. 

Harker, Bailment Ailment: An Analysis of the Legal Status 

of Ordinary Demand Deposits in the Shadow of the 

Financial Crisis of 2008, 19 Fordham J. Corp. & Fin. L. 

543, 561 (2014) (“[F]ractional reserve banking . . . is the 

de facto standard for all modern banks.”).

Vederman also argues that, even if CUMA acts as a 

mortgage lending business in some transactions, it was not 

acting as a mortgage lending business in this transaction. 

Vederman points to Toler’s testimony that, in a state in 

which CUMA is not licensed, the mortgage is closed in the 

name of a credit union. In such cases, the credit union, and 

not CUMA, owns the mortgage for the short period before 
152

the loan is sold on the secondary market. JA4241. CUMA 

is not licensed in the Commonwealth of Pennsylvania. See 

id. Thus, according to Vederman, CUMA was acting in its 

capacity as a mortgage servicing company for Fattah’s 

vacation home purchase and did not—and could not—

finance Fattah’s mortgage. That would mean that CUMA 

could not have been a victim of a crime against a financial 

institution in this instance: “When an entity is not 

functioning as a mortgage lender, the ‘pertinent federal 

interest’ behind the statutes is not implicated.” Vederman 

Reply Br. 38 (citation omitted).

The Government responds that neither of the 

statutes of conviction requires that the fraud or false 

statement occur in connection with the same transaction 

that places the entity within the definition of “financial 

institution.” Gov’t Fourth Step Br. 4. We agree with the 

Government.

Both § 1344 and § 1014 protect entities that fall 

within the definition of “financial institution” and are 

otherwise quite broad in their application. See Loughrin v. 

United States, 134 S. Ct. 2384, 2389 (2014) (interpreting 

§ 1344 as not requiring specific intent to defraud a bank);

United States v. Boren, 278 F.3d 911, 914 (9th Cir. 2002) 

(“[Section 1014’s] reach is not limited to false statements 

made with regard to loans, but extends to any application, 

commitment or other specified transaction.”). Neither 

statute is expressly limited in the manner that Vederman 

suggests. Williams v. United States, 458 U.S. 279, 284 
153

(1982) (“To obtain a conviction under § 1014, the 

Government must establish two propositions: it must 

demonstrate (1) that the defendant made a ‘false statement 

or report,’ . . . and (2) that he did so ‘for the purpose of 

influencing in any way the action of [a described financial 

institution] upon any application, advance, . . . 

commitment, or loan.’ ”); United States v. Leahy, 445 F.3d 

634, 646 (3d Cir. 2006) (“The purpose of the bank fraud 

statute is to protect the ‘financial integrity of [banking] 

institutions.’ ”) (citing S. Rep. No. 98-225, at 377 (1983), 

as reprinted in 1984 U.S.C.C.A.N. 3517), abrogated on 

other grounds by Loughrin, 134 S. Ct. at 2389.

In support of his position, Vederman relies on 

United States v. Devoll, 39 F.3d 575 (5th Cir. 1994), in 

which the Fifth Circuit concluded that § 1014 (false 

statements to a financial institution) is not intended to 

capture fraud unrelated to an entity’s lending activities, 

and therefore held that it “applies only to actions involving 

lending transactions.” Id. at 580. The Fifth Circuit stated:

[W]e are not persuaded that the statute 

imposes liability whenever a defendant’s 

false statement was intended to interfere with 

any activity of a financial institution; such a 

broad interpretation of section 1014 

presumably would encompass fraud or false 

representations having nothing to do with 

financial transactions, such as fraud in an 

employment contract or, for example, in a 
154

contract to provide goods or services for 

custodial care, premises repair, or renovation.

Id.

Yet a majority of circuits, including our own, have 

declined to follow Devoll’s suggestion that § 1014 is 

restricted to lending transactions. As the Ninth Circuit has 

held, “we join at least six of our sister circuits—the First, 

Third, Fourth, Sixth, Seventh, and Tenth—in holding that 

18 U.S.C. § 1014 is not limited to lending transactions, 

and reject the minority rule to the contrary.” Boren, 278 

F.3d at 915. And even if we were to adopt Devoll’s narrow 

construction of § 1014 to lending transactions, that would 

not resolve the more specific question of whether the 

defrauded entity must be defined as a “mortgage lending 

business” by virtue of the specific transaction in which the 

false statements arose.

Recently, the Eighth Circuit addressed precisely 

this issue. In United States v. Springer, 866 F.3d 949 (8th 

Cir. 2017), that Court considered the defendant’s appeal 

from the district court’s denial of a Rule 29 motion on 

grounds that GMAC, the entity defrauded, was not a 

“financial institution.” The Court upheld the district 

court’s determination that the evidence was sufficient to 

establish that GMAC is in the mortgage lending business 

because there was testimony that “it had made hundreds or 

thousands of loans secured by mortgages in 2010 and 2011 

in states all across the country,” which established that its 

activities affect interstate commerce. Id. at 953. It was not 
155

determinative that GMAC did not own the specific loan at 

issue in the case: “we discern no requirement in the 

definition of ‘mortgage lending business’ that the business 

own the particular loan in question; it need only finance or 

refinance any debt secured by an interest in real estate, or, 

in other words, be in the interstate mortgage lending 

business in general.” Id.

In our view, the Eighth Circuit’s analysis is correct. 

We therefore adopt that Court’s reasoning in Springer and 

conclude that it is of no moment that CUMA did not 

finance the mortgage at issue in Fattah’s case. CUMA is a 

“mortgage lending business,” and that alone suffices to 

support the convictions under §§ 1014 and 1344.

B. Sufficiency of the Evidence

Finally, Vederman argues that, even if CUMA is a 

financial institution, the judgment of acquittal should 

stand because the Government did not put forth any 

evidence that he made a false representation to CUMA.34

Specifically, Vederman argues that the title to the Porsche 

was actually changed to his name, making it a “true sale” 

as a matter of law, without regard to whether Fattah’s wife 

 34 Although Vederman presented this argument in his Rule 

29 motion, the District Court did not need to reach it in the 

context of Counts 19 and 20 because the Court granted the 

motion on the ground that CUMA is not a financial 

institution. The District Court rejected the argument as to 

Counts 16, 17, and 18. See JA100–02.
156

continued to retain possession. See United States v. 

Castro, 704 F.3d 125, 139 (3d Cir. 2013) (holding in 

another context that “the government must be able to show 

that [the defendant] made a statement to government 

agents that was untrue, and the government cannot satisfy 

that burden by showing that the defendant intended to 

deceive, if in fact he told the literal truth”); see also 75 Pa. 

Cons. Stat. § 102 (defining “owner” as “[a] person, other 

than a lienholder, having the property right in or title to a 

vehicle”).

The Government responds that, regardless of 

whether it is legally possible for one person to hold a title 

while a different person possesses the vehicle, the jury was 

permitted to consider all the circumstances in deciding 

whether the Porsche sale was a sham. We agree.

First, as the District Court observed, it was unclear 

as to whether the title had been properly executed under 

Pennsylvania law. For instance, Fattah’s wife never 

appeared before a notary.35 JA101. In addition, title 75, 

section 1111(a) of the Pennsylvania Consolidated Statutes

requires that, “[i]n the event of the sale or transfer of the 

ownership of a vehicle within this Commonwealth, the 

owner shall . . . deliver the certificate to the transferee at 

 35 Vederman argues that it is of no significance that the 

parties did not appear before a notary as the statute 

requires, but he offers cases only from states other than 

Pennsylvania to support this proposition.
157

the time of the delivery of the vehicle.” And, the transferee 

must, within twenty days of the assignment of the vehicle, 

apply for a new title. See 75 Pa. Cons. Stat. § 1111(b). 

Neither of these requirements was fulfilled. Finally, 

Vederman never registered the Porsche in his name with 

the Department of Motor Vehicles. See id.; JA4254.

Second, and more importantly, even if the title had 

been properly transferred to Vederman, the title provisions 

of the Pennsylvania Motor Vehicle Code “were [not] 

designed to establish conclusively the ownership of an 

automobile.” Weigelt v. Factors Credit Corp., 101 A.2d 

404, 404 (Pa. Super. Ct. 1953). Indeed, “[t]he purpose of 

a certificate of title is not to conclusively establish 

ownership in a motor vehicle, but rather to establish the 

person entitled to possession.” Speck Cadillac-Olds, Inc. 

v. Goodman, 95 A.2d 191, 193 (Pa. 1953). Thus, a title 

provides evidence of ownership; it is not dispositive of the 

issue. Wasilko v. Home Mut. Cas. Co., 232 A.2d 60, 61 

(Pa. Super. Ct. 1967).

Vederman’s argument that the title in his name 

constitutes conclusive evidence of ownership rests upon 

an erroneous conclusion that the jury was prohibited from 

considering all the circumstances of the transfer. As the 

District Court observed, though, Pennsylvania’s 

Commonwealth Court has held that “[w]hether a 

transferor has transferred ownership of a motor vehicle to 

a transferee is a factual determination to be made by the 

court below.” Dep’t. of Transp. v. Walker, 584 A.2d 1080, 
158

1082 (Pa. Commw. Ct. 1990). Thus, the signed certificate 

of title was appropriately treated as one piece of evidence 

for the jury to consider in assessing the validity of the 

vehicle transfer. Considered in the light most favorable to 

the Government, the totality of the evidence is sufficient 

to support the jury’s conclusion that the Porsche sale was

a sham.

XI. Prejudicial Spillover

Finally, Fattah, Vederman, Nicholas, and Brand 

each contend that their convictions on various counts 

resulted from prejudicial spillover. We are not persuaded.

We exercise plenary review over a district court’s 

denial of a claim of prejudicial spillover, United States v. 

Lee, 612 F.3d 170, 178–79 (3d Cir. 2010), and we apply a 

two-step test when reviewing such a claim. United States 

v. Wright, 665 F.3d 560, 575 (3d Cir. 2002). First, a court 

must consider “whether the jury heard evidence that would 

have been inadmissible at a trial limited to the remaining 

valid count[s].” Id. (quoting United States v. Cross, 308 

F.3d 308, 317 (3d Cir. 2002)). The second step requires 

that we “ask whether that evidence (the ‘spillover 

evidence’) was prejudicial.” Id. We consider four factors: 

“whether (1) the charges are intertwined with each other; 

(2) the evidence for the remaining counts is sufficiently 

distinct to support the verdict on these counts; (3) the 

elimination of the invalid count [will] significantly 

change[] the strategy of the trial; and (4) the prosecution 

used language of the sort to arouse a jury.” Id. (quoting 
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United States v. Murphy, 323 F.3d 102, 118 (3d Cir. 

2003)); see also United States v. Pelullo (Pellulo II), 14 

F.3d 881, 898–99 (3d. Cir. 1994). These four factors are 

considered in a light “somewhat favorable to the 

defendant.” Wright, 665 F.3d at 575 (quoting Murphy, 323 

F.3d at 122); see also Gov’t Br. 198 (same).

A. Fattah’s Claim of Prejudicial Spillover

Fattah argues that he suffered prejudicial spillover 

on the remaining counts of conviction in light of (1) 

evidence pertinent to the alleged Vederman bribery 

schemes that is now arguably inadmissible under 

McDonnell; and (2) “the government’s flawed RICO 

conspiracy theory.” Fattah Br. 50, 64. Fattah’s argument 

is undercut substantially because of our determination that 

McDonnell requires a new trial for Counts 16, 17, 22, and 

23 and our decision to affirm the RICO conspiracy 

conviction. The only possible spillover left to consider is 

the evidence pertaining to Fattah’s arranging a meeting 

between Vederman and the U.S. Trade Representative, 

Ron Kirk, which in light of McDonnell is now arguably 

inadmissible.36

The evidence of the Kirk meeting admitted during 

this five-week trial was limited. Although this evidence 

 36 Nothing in this opinion is intended to foreclose the 

possibility that evidence of the Kirk meeting may be 

admissible on retrial for some purpose other than as proof 

of an official act.
160

was part of the Government’s proof as to both the RICO 

and the bribery related charges, there is more than 

sufficient—and distinct —evidence to support Fattah’s 

conviction on all the other counts. In our view, eliminating 

any evidence of the Kirk meeting would not have altered 

the strategy of the trial, nor should it significantly change 

the strategy for any new trial that may be held. Because 

Fattah has not pointed us to any argument by the 

prosecution relating to this meeting that could have 

inflamed the jury, we conclude that Fattah’s prejudicial 

spillover claim fails. Like the District Court, we presume 

that the jury followed the Court’s instructions to consider 

and weigh separately the evidence on each count as to each 

defendant and not to be swayed by evidence pertaining to 

other defendants.37

B. Vederman’s Assertion of Prejudicial Spillover

Because the District Court acquitted Vederman of 

the RICO charge, Vederman argues that he was “severely 

prejudiced by the presentation to the jury of a legally 

flawed racketeering conspiracy charge,” and as a 

consequence his bribery and money laundering 

 37 We likewise reject Brand’s prejudicial spillover 

arguments. See Brand Br. 6 (“Brand adopts the significant 

issue advanced by his co-appellant pursuant to Fed. R. 

App. P. 28(i) that improper jury instructions and the 

resulting spillover of related improperly admitted 

evidence and argument unfairly prejudiced Brand.”).
161

convictions should be overturned. Vederman Br. 46. In 

response to the Government’s appeal of the District 

Court’s Rule 29 acquittal on Counts 19–20 involving 

CUMA, Vederman asserts that these two counts also were 

affected by spillover evidence because the Government’s 

theory tied the bribery charges to the actions taken to 

defraud CUMA. In that we are vacating Vederman’s 

convictions of Counts 16–18 and 22–23 based on 

McDonnell and remanding for further proceedings, we 

need address only Vederman’s argument of prejudicial 

spillover as it relates to the charges involving CUMA in 

Counts 19–20, charges that we will reinstate.

The District Court’s acquittal of Vederman on the 

RICO count establishes that step one of the Wright 

spillover test has been met. “[T]he jury heard evidence that 

would have been inadmissible at a trial limited” to the 

bribery and CUMA-related counts. Wright, 665 F.3d at 

575 (quoting Cross, 308 F.3d at 317).

Wright’s second step requires “ask[ing] whether 

that evidence (the ‘spillover evidence’) was prejudicial.” 

Id. Vederman submits that the RICO, bribery, and CUMArelated charges were intertwined “in that the acts relating 

to the alleged bribery scheme were also charged as 

‘predicates’ under RICO.” Vederman Br. 49. We disagree.

To be sure, the RICO, bribery, and CUMA Counts 

are related to one another. But in this instance, mere 

relatedness is not enough to demonstrate the foundation 

necessary for spillover. This is so because the bribery 
162

charges were a predicate to the RICO charge. In other 

words, the jury had to determine if Vederman was guilty 

of bribery, and the jury then used that “predicate” to 

consider whether he was also guilty of the RICO 

conspiracy. Thus, the necessarily tiered structure of the 

questions presented to the jury refute Vederman’s 

argument that the counts were intertwined.

That the bribery charges were predicates for the 

RICO conspiracy further demonstrates that the “evidence 

for the different counts was sufficiently distinct to support 

the verdict on other separate counts.” Pelullo II, 14 F.3d at 

898. Regardless of the evidence pertaining solely to the 

RICO conviction, the evidence supporting both the bribery 

charges and the charges involving CUMA in Counts 19–

20 would have remained the same.

The next factor we address is “whether the 

elimination of the count on which the defendant was 

invalidly convicted would have significantly changed the 

[defendant’s] strategy of the trial.” Id. As Vederman 

argues, “the RICO charge interfered with Vederman’s 

central defense to the bribery charge—that his gestures 

toward Fattah ‘were motivated purely by friendship.’ ” 

Vederman Reply Br. 28 (citing Gov’t Br. 200). In other 

words, the “RICO count made it dangerous to unduly 

emphasize [Vederman’s] close friendship” with Fattah. Id.

From Vederman’s perspective, “a bribery-only trial would 

have reduced this danger and allowed a freer presentation 

of the defense.” Id.
163

It is quite likely that Vederman’s claim of friendship 

would have been less risky as a litigation strategy if he had 

not been facing a RICO charge. But Vederman 

nevertheless chose to take that risk and fully presented his 

friendship argument to the jury. Moreover, while 

Vederman’s reliance on friendship might have helped him 

defend against the bribery charges, that friendship would 

not have altered the evidence pertaining to Counts 19–20 

involving CUMA. Whether done for friendship or some 

other reason, submitting fraudulent information to a 

financial institution is unlawful.

Finally, we “examine the charges, the language that 

the government used, and the evidence introduced during 

the trial to see whether they are ‘of the sort to arouse a 

jury.’ ” Pelullo II, 14 F.3d at 899 (quoting United States v. 

Ivic, 700 F.2d 51, 65 (2d Cir. 1983)). Vederman points out 

that Fattah was presented as “a backslapping, corrupt party 

boss,” with “predictable spillover to his friend and 

associate, Vederman.” Vederman Br. 50 (quoting United 

States v. Murphy, 323 F.3d 102, 118 (3d Cir. 2003)). But 

this description was of Fattah, not Vederman. Vederman

cites other examples of prejudicial, pejorative language in 

the Government’s closing arguments. At one point, the 

Government referred to “conspirators engaged in what can 

only be described as a white collar crime spree from 

Philadelphia all the way to Washington, D.C.” and 

promised “to untangle the webs of lies and deception that 

these conspirators spun.” Vederman Br. 51 (quoting 

JA5295, 5297). Whatever rhetorical flair these words 
164

contained, they did not obscure the evidence which 

independently supported the convictions for bank fraud at 

Count 19 and for making false statements to CUMA at 

Count 20. Accordingly, because we presume that the jury 

followed the District Court’s instruction to consider and to 

weigh separately the evidence on each count and as to each 

defendant, and because the evidence supporting the 

CUMA-related charges in Counts 19–20 is sufficiently 

distinct from the RICO conspiracy, we conclude that 

Vederman’s spillover argument is unavailing.38

XII. Conclusion

We will vacate the convictions of Chaka Fattah, Sr. 

and Herbert Vederman as to Counts 16, 17, 18, 22, and 23. 

 38 Nicholas adopted “pertinent portions” of the prejudicial 

spillover arguments advanced by Vederman and Fattah. 

Nicholas Br. 65. Her spillover claim has no more merit 

than theirs. Nicholas’s involvement in the RICO 

conspiracy was distinct from the bribery charges, which 

did not unfairly influence the other counts. As to 

Nicholas’s assertion that the NOAA charges did not 

belong in the indictment and should have been tried 

separately, we fail to see how this relates to a claim of 

prejudicial spillover. To the extent it challenges the 

District Court’s denial of Nicholas’s motion for a 

severance, Nicholas has failed to provide legal support for 

such a contention. See Fed. R. App. P. 28(a)(8)(A); United

States v. Irizarry, 341 F.3d 273, 305 (3d Cir. 2003).
165

Fattah and Vederman may be retried on these counts 

before a properly instructed jury. We will also reverse the 

District Court’s judgment of acquittal on Counts 19 and 

20. The convictions of Chaka Fattah, Sr. and Herbert 

Vederman will be reinstated, and the case will be 

remanded for sentencing on those counts. In all other 

respects, the judgments of the District Court will be 

affirmed.