2005 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-2-2005

USA v. Lore

Precedential or Non-Precedential: Precedential

Docket No. 03-3043

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

Nos. 03-3043, 03-3217, 03-4349, 03-4350

 

UNITED STATES OF AMERICA

v.

JOSEPH LORE,

Appellant in No. 03-3043

 

UNITED STATES OF AMERICA

v.

DENISE BOHN,

Appellant in No. 03-3217

 

UNITED STATES OF AMERICA

v.

JOSEPH PELLICCIA,

Appellant in No. 03-4349

 

UNITED STATES OF AMERICA

v.

WILLIAM HURLEY,

Appellant in No. 03-4350

 
2

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Crim. No. 99- cr-00292-4/3/6/5)

Honorable Mary Little Cooper, District Judge

 

Submitted under Third Circuit LAR 34.1(a)

October 28, 2005

BEFORE: SLOVITER, FISHER, and GREENBERG, Circuit Judges

(Filed December 2, 2005)

 

Marc Fernich

570 Lexington Avenue

16th Floor

New York, NY 10022

 Attorney for Appellant Joseph Lore in No. 03-3043

Michael P. Koribanics

Koribanics & Koribanics

685 Van Houten Avenue

Clifton, NJ 07012

 Attorney for Appellant Denise Bohn in No. 03-3217

Joseph Pelliccia

50 West 48 Street th

Bayonne, NJ 07002

 Attorney pro se in 03-4349

Leonard Meyerson

Miller, Meyerson, Schwartz & Corbo

955 West Side Avenue

Jersey City, NJ 07306

 Attorney for Appellant William Hurley In No. 03-4350
3

Christopher J. Christie

United States Attorney

George S. Leone

Chief, Appeals Division

Attorneys for Appellee

David B. Lat

Assistant U.S. Attorney

970 Broad Street

Newark, NJ 07102-2535

 Attorneys for Appellee

 

OPINION OF THE COURT

 

GREENBERG, Circuit Judge.

I. INTRODUCTION

These matters come on before this court on partially

consolidated appeals following convictions at a jury trial in the district

court on December 17, 2001, and the subsequent entry of judgments

of convictions and sentences on July 10, 2003, as to Joseph Lore, July

25, 2003, as to Denise Bohn, and October 31, 2003, as to Joseph

Pelliccia and William Hurley. The case originated on June 2, 1999,

when a grand jury returned an indictment against Bohn, Eugene

G’Sell and John Angelone charging them with conspiracy to embezzle

funds from Local 1588 of the International Longshoremen’s

Association (the “union” or “Local 1588"), contrary to the LaborManagement Reporting and Disclosure Act of 1959, 29 U.S.C. §

501(c) (“section 501(c)”), in violation of 18 U.S.C. § 371. 

Subsequently, a grand jury returned a superseding indictment on

December 19, 2000, charging defendants-appellants, Lore, Bohn,

Pelliccia and Hurley (collectively, “defendants”), along with Thomas

Rackley, who is not a party on these appeals, among other things, with

conspiracy to embezzle and embezzlement of funds from Local 1588. 

In these proceedings, defendants appeal from their convictions by

challenging numerous rulings by the district court made prior to,

during, and after their three-week trial that began in November 2001. 

Lore and Bohn, but not Pelliccia and Hurley, also challenge their

sentences in light of United States v. Booker, 543 U.S. , 125 S.Ct.

738 (2005). 
Though we set forth the facts on the basis of the testimony 1

favorable to the government as the verdict winner, see United States v.

Pungitore, 910 F.2d 1084, 1097 (3d Cir. 1990), there is no real dispute

regarding some but not all of the facts we reference. In this opinion we

refer to the joint appendix Bohn filed as “J.A.” She also filed an

addendum to her appendix, and the other defendants and the government

filed additional appendices.

See also United States v. Carson, 52 F.3d 1173, 1176-80 (2d 2

Cir. 1995) (providing background information regarding Local 1588). 

4

II. FACTUAL AND PROCEDURAL HISTORY

A. The Parties and Conduct at Issue

Local 1588, which is headquartered in Bayonne, New Jersey,

is a labor organization comprised of longshoremen, dockworkers and

others who service the shipping industry. In 1990, the government 1

asserted that its president and secretary-treasurer, respectively Blaze

Terraciano and Dominic Sanzo, had allowed organized crime

elements into the union. As a result, the government initiated a civil

RICO action against Local 1588 seeking to purge the union of these

elements. The civil RICO action culminated in a consent order by 2

which the executive board of Local 1588 agreed, inter alia, that the

union’s officers and employees would not associate with Lore with

regard to any union business. The order was unusual inasmuch as

Lore was not an officer or member of Local 1588 but rather was the

hiring agent for International Terminal Operations, a waterfront entity

that employed many Local 1588 members. In that capacity Lore

controlled the work assignments of many union members. 

In December 1990, Local 1588 elected G’Sell and Angelone

as its president and secretary-treasurer, respectively, to replace

Terraciano and Sanzo, who had been implicated in the civil RICO

action. Lore exerted significant influence over their election, but his

influence over Local 1588 was not limited to the selection of its

leadership for he exercised significant control over its payroll by

directing that the union place certain individuals, including Pelliccia

and Hurley, on it.

Bohn, who was Terraciano’s daughter, and was involved

romantically with Lore, staffed the Local 1588 office. According to

Angelone, she gave herself the title “Administrator.” Bohn was
The superceding indictment included the following counts:

3

Count One, against Lore, Bohn, Hurley, Pelliccia and Rackley charged

a conspiracy against the victim union in violation of 18 U.S.C. § 371,

contrary to section 501(c). Count Two, against Lore, charged him with

making false statements to obtain worker’s disability benefits under the

Longshore and Harbor Workers’ Compensation Act, in violation of 33

U.S.C. § 931. Count Three, against Lore and Hurley, charged a section

501(c) violation for diverted salary payments. Count Four, against Lore

and Pelliccia, charged a section 501(c) violation for diverted salary

payments. Count Five, against Lore and Rackley, charged a section

501(c) violation for diverted salary payments. Counts Six, Seven and

Eight, against Bohn, charged section 501(c) violations in various

specified amounts relating to an alleged vendor kickback scheme. All

of the substantive charges (Counts Two through Eight) also charged

violations of the aiding and abetting statute, 18 U.S.C. § 2. 

5

responsible for Local 1588's day-to-day financial operations, a power

that she exercised to give herself complete control over its books and

records. Thus, she drafted paychecks, paid bills, and conducted bank

transactions for the union. Her control was so complete that she did

not allow anyone else access to the union’s financial records and

checkbook– not even Angelone, who replaced Sanzo as Local 1588's

secretary-treasurer. Bohn enjoyed numerous benefits incidental to her

employment, including the use of a leased BMW, the expenses for

which Local 1588, at Lore’s prompting, paid. Furthermore, Bohn

received a Christmas bonus in an amount of her choice. Clearly,

Bohn was secure in her position for Lore successfully intervened on

her behalf when Angelone suggested terminating her employment. 

As we have indicated, on June 2, 1999, a grand jury returned

an indictment charging G’Sell, Angelone, and Bohn with conspiring

to embezzle funds from Local 1588. In particular, the indictment

charged them with abusing union credit cards by improperly charging

personal expenses and obtaining kickbacks from vendors and service

providers who performed services for Local 1588. G’Sell and

Angelone pleaded guilty to one count of the indictment pursuant to

cooperating plea agreements, and, as a result, they testified on behalf

of the government at the trial in this case. 

In the superseding indictment returned on December 19, 2000,

the grand jury charged, inter alia, that Lore, Bohn, Pelliccia, Hurley

and Rackley embezzled large sums of money from Local 1588 over a

period of years. These defendants pleaded not guilty following which 3
Defendants claim that the payees earned their salaries so this

4

point is disputed.

6

there was a three-week trial on the superceding indictment at which

the government alleged and demonstrated that they used three

methods to embezzle union funds: (1) a salary diversion scheme; (2)

credit card abuse; and (3) service provider kickbacks. 

B. Salary Diversion Scheme

The salary diversion scheme appears to have been defendants’

most lucrative method of embezzlement. The scheme was

uncomplicated but effective. To carry it out Bohn prepared paychecks

for union members who were officers or employees of Local 1588,

independently of and in addition to their primary employment on the

waterfront. She did not, however, deliver the checks to the designated

payees. Rather, in a typical case G’Sell would endorse a check with

the payee’s name, and G’Sell or Bohn then would take the check to a

bank to be cashed. Thereafter, the cash was returned to the union hall

for disbursement, where half was delivered to Lore, usually by G’Sell,

and the other half went to the designated payee.

G’Sell testified that, after being elected president of Local

1588 in 1990, he understood that half of his and Angelone’s salaries

would be diverted to Lore. G’Sell further testified that he similarly

diverted to Lore half of Pelliccia’s and Hurley’s salaries, along with

the salaries of other persons, at various times while Local 1588

employed them. According to G’Sell, he informed each participant in

the scheme of the salary diversion to Lore, and they all acquiesced. 

G’Sell testified that Bohn was aware of the salary diversion scheme

and, on at least one occasion, helped him count the money. Even

though it may seem strange that the payees would permit the diversion

of such significant portions of their payments from the union, even

without regard for Lore’s undoubted hold over the union and the

effect that that power had on the union officials, their acquiescence in

the scheme is actually not so surprising when it is considered that

testimony at the trial indicated that at least some of the payees

performed little or no useful services for Local 1588. Thus, it 4

appears that the payees sometimes were giving up something to which

they were not entitled. Therefore, in at least those instances, the union

and its membership, and not the payees, could be regarded as the sole
We do not suggest that our outcome turns on this point as our 5

result would be the same regardless of whether the payees earned all,

some, or none of their salaries.

7

victims of the scheme. In total, the government alleged that Lore and 5

his co-conspirators diverted over $750,000 from Local 1588 through

the salary diversion scheme. 

C. Credit Card Abuse

As union officers, G’Sell and Angelone obtained American

Express cards for union purchases and Local 1588 paid the American

Express bills. Through the use of these cards G’Sell and Angelone

incurred approximately $20,000 and $10,000, respectively, in charges

unrelated to the union. Bohn, though not issued a union credit card,

also participated in the credit card abuse by using G’Sell’s card. For

instance, she spent at least $11,000 in union funds on liquor and on

merchandise from a music store, dispatching G’Sell to retrieve her

items and to pay for them with his union credit card. Sharon Carballo,

who had been a close friend of Bohn during the time of the criminal

conduct in this case, testified regarding Bohn’s spending habits and

stated that she witnessed Bohn use G’Sell’s union credit card for

purchases unrelated to Local 1588's business at a department store. 

D. Service Provider Kickbacks 

Lore, Bohn, G’Sell and Angelone orchestrated the kickback

scheme with vendors and service providers. For example, one

kickback involved Jack Doris who furnished the union with apparel–

hats, jackets, sweatshirts and other clothing items. After receiving

checks from Bohn for apparel, he would cash the check at a bank and

return to the union hall with the kickback in cash, which he would

give to Bohn or G’Sell or both. 

The vendor kickback scheme also involved various renovation

and construction projects at the union hall. For instance, on several

occasions the union commissioned the services of a fence company

that Lore’s longtime friend, Joe Toscano, owned. In one instance,

Toscano’s company constructed an eight-foot fence along one side of

the union hall parking lot and then constructed an identical eight-foot

fence a mere three inches in front of the first. Angelone testified that

the second fence was unnecessary, and cost double the cost of the first

fence. The government alleged that Toscano substantially
We are setting forth the net custodial terms without breaking 6

them down to show that the sentences encompassed concurrent

components.

Each defendant filed a separate brief, but Lore, Bohn and 7

Pelliccia adopted by reference the arguments of their co-defendants to

the extent such arguments might be applicable to them and were not

inconsistent with their own contentions. 

8

overcharged the union on the fence project, and that he kicked back

the overcharge to Lore. In another instance, the union hired Vito

Bilotta to perform paving and roofing work. In his dealings with

Local 1588, Bilotta dealt exclusively with Bohn, with whom he may

have been involved romantically. She drafted weekly checks for

Bilotta’s services, totaling approximately $70,000, but there were no

work orders or invoices supporting the expenditures. In describing

Lore’s influence over the construction and renovation at the union

hall, Angelone recounted how Lore instructed him to cease

negotiating for lower prices on union hall construction and

remodeling. 

E. Proceedings in the District Court

The trial on the superceding indictment began October 9,

2001, but the court declared a mistrial the following day after certain

jurors observed Lore making a threatening gesture toward the

government’s first witness, G’Sell. Consequently, the court selected a

new jury following which the trial began again on November 7, 2001. 

After three weeks of testimony, the court submitted the case to the

jury on December 12, 2001. The jury returned a verdict of guilty as to

all defendants on all counts on December 17, 2001. Subsequently the

court sentenced Lore, Bohn, Pelliccia, Hurley and Rackley to

custodial terms of 70 months, 38 months, 24 months, 18 months and

13 months, respectively, followed by appropriate periods of

supervised release. Defendants (not including Rackley) have timely 6

appealed. Thus, as we have indicated, Rackley is not a party to these

proceedings. The district court had jurisdiction under 18 U.S.C. §

3231, and we have jurisdiction pursuant to 28 U.S.C. § 1291 and 18

U.S.C. § 3742(a). 

III. DISCUSSION7
Defendants challenge the applicability of section 501(c) to the 8

salary diversion scheme but do not challenge its applicability to the other

means underlying the conspiracy to embezzle– i.e., credit card abuse and

service providers kickbacks. 

9

 A. Section 501(c) Convictions

1. Statutory Interpretation

Defendants raise two arguments concerning the reach of 29

U.S.C. § 501(c). They argue that the salary diversion scheme was

beyond the scope of the conduct that section 501(c) prohibits, and

Bohn adds that she is not within the class of persons the section

covers. The district court rejected both arguments. We exercise

plenary review over defendants’ challenge to the district court’s

interpretation of 29 U.S.C. § 501(c). See United States v. Urban, 404

F.3d 754, 762 (3d Cir. 2005). 

a. Conduct Covered by Section 501(c)

Lore, Pelliccia and Hurley contend that the salary diversion

scheme underlying their convictions is beyond the reach of section

501(c) which provides in pertinent part:

Any person who embezzles, steals, or unlawfully and

willfully abstracts or converts to his own use, or the

use of another, any of the moneys, funds, securities,

property, or other assets of a labor organization of

which he is an officer, or by which he is employed,

directly or indirectly, shall be fined not more than

$10,000 or imprisoned for not more than five years, or

both. 

29 U.S.C. § 501(c). In United States v. Silverman, 430 F.2d 106 (2d 8

Cir. 1970), the court explained the crime that Congress intended to

establish in enacting section 501(c):

[Congress has] gone beyond the common law offense

of larceny and the old statutory crime of embezzlement

because ‘gaps or crevices have separated particular

crimes of this general class and guilty men have
10

escaped through the breaches,’ Morissette v. United

States, 342 U.S. 246, 271-72, 72 S.Ct. 240, 254, 96 L.

Ed. 288 (1952). But, as was there held, despite minor

variations in language the common thread is that the

defendant, at some stage of the game, has taken

another person’s property or caused it to be taken,

knowing that the other person would not have wanted

that to be done. . . . 

It is easy to understand how a union employee does

this when he ‘unlawfully and willfully’ uses union

funds in a manner that works to the personal benefit of

himself or the payee and does not benefit the union,

whether or not the union went through the form of

authorization; the ‘union’ presumably would have

objected if it had been able to speak freely.

Id. at 126-27 (internal citations omitted). As another court of appeals

has explained, the broad language of section 501(c) “would seem to

cover almost every kind of taking.” United States v. Harmon, 339

F.2d 354, 357 (6th Cir. 1964); see also United States v. Robinson, 512

F.2d 491, 494 (2d Cir. 1975) (“The statutory language condemns the

embezzlement or conversion not only of moneys, funds and securities,

but also of ‘property, or other assets of a labor organization . . .

directly or indirectly. . . .’”). 

Defendants assert that their conduct cannot be regarded as a

taking of union funds because “lawfully earned salary payments are

not union funds within the scope of section 501(c).” Lore Br. at 15. 

The argument contends that the payments to Lore came from bona

fide, authorized salaries and thus the scheme involved private

transactions rather than the embezzlement of union funds. In support

of this argument they cite United States v. Brill, 350 F.2d 171, 174

(2d Cir. 1965) (internal quotation marks omitted), for the proposition

that “section 501(c) does not prohibit any union officer or employee

from using his bona fide salary in any manner he or she may see fit.” 

Lore Br. at 15; see also Hurley Br. at 22 (“It is axiomatic that one

cannot steal, embezzle moneys from oneself.”). In addition,

defendants devote much space in their briefs to their assertion that

Local 1588 benefitted from the salaried officials’ services. 

Defendants’ attempts to recast the evidence, however, are

unpersuasive. The government’s proof established that the
Indeed, it is rather disingenuous for defendants to assert that the 9

salary diversion scheme was merely a series of private transactions and

to decry a “narrow focus on what the Salaried Officials did with their

money,” Lore Br. at 20. In reality, the payees of the union’s checks did

not realize, possess or otherwise beneficially enjoy their salaries for, as

the district court noted at a hearing on post-trial motions, the evidence

demonstrated that the checks representing the diverted funds did not

reach the payees but, instead, were “immediately cashed out and divvied

up,” with half of the salary going to Lore. J.A. at 5107-08. 

11

designation of funds as “salary” was merely a clever scheme for

routing union funds to Lore, who directed that the union place the

payees on the payroll. Lore even controlled the amounts of what, in

reality, were nominal “salaries,” dictating that the union grant raises

for salaried officials when he wanted to increase the amount of money

diverted to him. Finally, there was no evidence that Lore, who was

not a union member, much less one of its officials, provided any

services or benefits to Local 1588 in exchange for the funds diverted

to him. In fact, the parties stipulated at trial that the consent order in

9

the civil RICO action we discussed above barred Local 1588 from

associating with Lore. But rather than heeding the consent order, it

appears that Lore regarded the union treasury as a personal money

access machine available for his use.

We recognize that the fraudulent scheme involved here was

novel. Indeed, as the district court noted in its sentencing

memorandum, “there are no reported cases in this or any circuit that

involve a salary diversion embezzlement scheme similar to that

perpetrated in this case.” Lore App. at 30. But this is not the first

time that a court has been tasked with assessing whether

unconventional chicanery falls within the ambit of section 501(c). 

See, e.g., Robinson, 512 F.2d 491. In Robinson, a jury convicted a

union official and two union employees of violating section 501(c) by

converting union forms normally reserved for union members to grant

them priority status in regard to promotions, and selling them to new

recruits. On appeal, the court rejected the defendants’ argument that

they had not violated section 501(c) because the forms that they

converted had no intrinsic value and the union, rather than suffering a

loss, actually profited from the defendants’ activities. Id. at 494-95. 

The court explained: 

Although appellants claim that this is a case of first

impression, that is true only to the extent that the fact
We do not suggest that we predicate our result on the large 10

amount of money involved.

The Court of Appeals for the Seventh Circuit has explained that 11

even when expenditures are authorized, the authorization is a nullity if

obtained “without the disclosure of material information.” United States

v. Carlino, 143 F.3d 340, 344 (7th Cir. 1998). See also United States v.

Butler, 954 F.2d 114, 119 (2d Cir. 1992) (affirming section 501(c)

conviction and noting “[a]n authorization obtained without disclosure of

12

pattern is unusual. . . . In our view, the activities of the

defendants fall within [the court’s] description [in

Silverman] of the crime Congress intended to establish. 

They utilized the property of the union in a way which

benefitted themselves and not the union. Their action

was not authorized and presumably the [union] and its

membership would have objected had it been made

known. 

Id. at 495-96 (citing Silverman, 430 F.2d at 126-27). Here,

defendants’ scheme similarly falls within the description of the crime

Congress intended to establish: the diversion of hundreds of

thousands of dollars in union funds disguised as “salary” was an

unlawful and willful misuse of union funds “that works to the

personal benefit of . . . the payee and does not benefit the union.” See

Silverman, 430 F.2d at 127. 

10

We also find unpersuasive defendants’ assertion that they

could not have violated section 501(c) because the diverted salaries

were “duly authorized by the union or its president” or because the

union benefitted from the services of the salaried officials. See, e.g.,

Hurley Br. at 21. We have recognized the “obvious problems”

concomitant with any approach to section 501(c) that places too much

weight on authorization and union benefit. United States v. Oliva, 46

F.3d 320, 323-24 (3d Cir. 1995). In Oliva, we explained that there is

“potential for abusing” authorization by those doing the authorizing,

who then are “in the strongest position to justify [conduct] as a benefit

to the union in ways that are not easily disproven.” Id. at 324. 

Instead, we held that authorization and benefit are “merely factors that

may be considered as bearing on intent.” Id.; accord United States v.

Vandenbergen, 969 F.2d 338, 340 (7th Cir. 1992) (“We can imagine

cases in which formally authorized expenditures violate section

501(c).”). Thus, it does not matter whether the union “went through 11
. . . material information is obviously a nullity”). 

It is significant that, notwithstanding the purported

12

authorizations and union benefits, the jury here concluded that

defendants acted knowingly, willfully, and unlawfully, “with intent to

deprive Local 1588 of the use of its funds.” See J.A. at 4959. We know

the jury made that finding because the district court in its charge told the

jury that it had to do so to convict defendants on Counts Three through

Eight, and the jury did exactly that.

Though we accept the court’s opinion in Capanegro, and thus 13

rely on it, we do not join in its characterization of the positions involved

as “menial.” 

13

the form of authorization,” because the union, which a district court in

a consent order had enjoined permanently from even associating with

Lore, “presumably would have objected if it had been able to speak

freely.” Silverman, 430 F.2d at 127.12

Accordingly, we reject defendants’ construction, which

elevates form over substance to allow their “escape[ ] through the

breaches” of gaps and crevices which Congress sought to close with

section 501(c)’s broad prohibition on pilfering union funds. 

b. Persons Covered by Section 501(c)

Bohn asserts that she is not among the class of persons section

501(c) covers because she did not have a fiduciary relationship with

Local 1588. We find that this argument lacks merit. 

Section 501(c) does not limit its coverage to fiduciary officials

and employees. Instead, the clear text covers “any person” employed

by a union, without regard to any other statute setting forth fiduciary

obligations of union officers. See United States v. Capanegro, 576

F.2d 973, 978 (2d Cir. 1978) (“We have heretofore affirmed the

convictions under section 501(c) of defendants who held such

relatively menial positions as Patrolman and Master-at-Arms of a

labor organization.”). Neither the statutory definition of “person” 13

nor that of “employee” references fiduciary relationships. See 29

U.S.C. § 402(d),(f). Moreover, Bohn misapprehends our opinion in

Oliva, 46 F.3d 320, which she cites for her fiduciary relationship

argument, because in Oliva we neither were presented with nor ruled

on the issue of whether a section 501(c) violation requires a fiduciary
The government asserts that Hurley’s and Pelliccia’s section 14

501(c)-related arguments, “while cast as a sufficiency challenge, [are]

properly viewed as presenting the same statutory interpretation as

Lore’s.” Gov’t. Br. at 21. We disagree. Although the bulk of their

argument challenging the section 501(c)-related convictions mirrors the

statutory argument, they also challenge the sufficiency of evidence

establishing intent. See Pelliccia Br. at 3-3C (asserting “insufficient

evidence” that he “knew that his actions, of giving [money] back to

G’Sell . . . was furthering a crime”); Hurley Br. at 28 (“The evidence did

not show knowledge and fraudulent intent.”). Accordingly, we address

their insufficiency claim insofar as it relates to intent. 

14

relationship. We now make clear that it does not have such a

requirement.

2. Sufficiency of Evidence

Bohn, Pelliccia and Hurley unsuccessfully filed post-trial

motions for judgment of acquittal pursuant to Fed. R. Crim. P. 29,

arguing that the government failed to adduce sufficient evidence to

support their section 501(c)-related convictions. Moreover, in

addition to contending in a less focused way that there was

insufficient evidence to support her conspiracy conviction, Bohn

argues that she was convicted solely on the basis of her association

with Lore. See Bohn Br. at 26 (“Basically, the Government’s case

against Denise Bohn was essentially based on her relationship with

Joe Lore.”). Pelliccia and Hurley contend that the evidence that they

had a fraudulent intent was purely circumstantial and insufficient. 

14

“The burden on a defendant who raises a challenge to the

sufficiency of the evidence is extremely high.” United States v.

Serafini, 233 F.3d 759, 770 (3d Cir. 2000). In reviewing a jury

verdict for sufficiency of the evidence, “we determine whether there is

substantial evidence that, when viewed in the light most favorable to

the government, would allow a rational trier of fact to convict.”

United States v. Helbling, 209 F.3d 226, 238 (3d Cir. 2000) (quoting

Gov’t of the Virgin Islands v. Charles, 72 F.3d 401, 410 (3d Cir.

1995)). In other words, we “must consider the evidence in the light

most favorable to the government and affirm the judgment if there is

substantial evidence from which any rational trier of fact could find

guilt beyond a reasonable doubt.” United States v. Frorup, 963 F.2d

41, 42 (3d Cir. 1992) (citing Glasser v. United States, 315 U.S. 60, 80,

62 S.Ct. 457, 469 (1942)). Moreover, we review both direct and
15

circumstantial evidence where there are sufficiency of the evidence

questions. See United States v. Kapp, 781 F.2d 1008, 1010 (3d Cir.

1986). None of the defendants can sustain this heavy burden on the

sufficiency of evidence issue. 

The record is replete with evidence with regard to Bohn

sufficient to support her conviction. In denying Bohn’s motion for a

judgment of acquittal, the district court chronicled much of the

evidence establishing her guilt. This evidence included, but was not

limited to, testimony linking Bohn to all three methods alleged in the

conspiracy: (1) negotiating and endorsing checks associated with the

salary diversion scheme, the proceeds of which she helped divide; (2)

processing all inflated bills associated with the vendor kickback

scheme; and (3) using a union credit card for personal use and

spending union funds to purchase liquor. Thus, contrary to Bohn’s

contention, the jury did not convict her solely on the basis of her

association with Lore. Indeed, her criminal conduct with respect to

Local 1588 was uncabined and demonstrated that she had no more

interest in ensuring that the union’s funds were spent properly than

did Lore. 

Pelliccia’s and Hurley’s challenges to the sufficiency of

evidence establishing intent, which they describe as largely

circumstantial, are also devoid of merit. We have held that all the

elements of a conspiracy charge, including intent and knowledge of

illicit purpose, “may be proven entirely by circumstantial evidence.” 

United States v. Schramm, 75 F.3d 156, 159 (3d Cir. 1996) (internal

citation omitted); see also United States v. Klein, 515 F.2d 751, 754

(3d Cir. 1975) (“Circumstantial evidence is clearly proper . . .

especially in a conspiracy case where direct evidence is likely to be

scant.”); United States v. Stubin, 446 F.2d 457, 461 (3d Cir. 1971)

(holding that circumstantial evidence may support finding of intent in

a prosecution under section 501(c)). There was compelling evidence

from which to infer Pellicia’s and Hurley’s intent and knowledge of

illicit purpose, including evidence that they participated in the scheme

with knowledge that half their salaries would be diverted to Lore. For

example, G’Sell testified that he explained the salary diversion

scheme to Pelliccia and Hurley. It does not matter that the coconspirators did not discuss the fraudulent nature of their actions. See

United States v. Anderskow, 88 F.3d 245, 254 (3d Cir. 1996). 

 

B. Denial of Severance 
16

Bohn and Hurley assert that the spillover of evidence relating

to Lore and, in particular, the evidence on Count Two which charged

Lore with making false statements to obtain worker’s disability

benefits under the Longshore and Harbor Workers’ Compensation

Act, in violation of 33 U.S.C. § 931, prejudiced them. This position,

however, is in tension with “the fundamental principle that the federal

system prefers joint trials of defendants who are indicted together

because joint trials promote efficiency and serve the interests of

justice by avoiding the scandal and inequity of inconsistent verdicts.” 

United States v. Urban, 404 F.3d at 775 (quoting Zafiro v. United

States, 506 U.S. 534, 537, 113 S.Ct. 933, 937 (1993) (internal

quotation marks omitted)). For this reason the choice of whether to

sever defendants’ trials rests in the sound discretion of the district

courts. Accordingly, we review a district court’s denial of a motion to

sever for abuse of discretion. Id. A court should grant severance

under Fed. R. Crim. P. 14 “only if there is a serious risk that a joint

trial would compromise a specific trial right of one of the defendants,

or prevent the jury from making a reliable judgment about guilt or

innocence.” Id. (citing Zafiro, 506 U.S. at 539, 113 S.Ct. at 938). 

Defendants seeking a severance bear a “heavy burden” and must

demonstrate not only that the court would abuse its discretion if it

denied severance, “but also that the denial of severance would lead to

clear and substantial prejudice resulting in a manifestly unfair trial.” 

Id. (internal citations and quotations omitted). 

Neither Bohn nor Hurley can meet the burden to show that the

district court erred under this standard. The fact that Lore may have

been the only defendant the grand jury charged in connection with

making a false worker’s disability claim is not determinative. We see

no reason why, in a joint trial of defendants charged with participating

in a conspiracy, the fact that the grand jury charged one defendant

separately with an additional criminal act somehow would interfere

with the petite jury’s ability to consider the evidence against each

defendant on each count separately. See United States v. Sandini, 888

F.2d 300, 307 (3d Cir. 1989). Notably, the government’s proof

regarding Count Two consisted largely of testimony of G’Sell and

Angelone, co-conspirators in the embezzlement scheme. In fact, there

was nothing unusual in the joinder of charges and defendants in this

case for, as we have recognized, “undoubtedly, there are many

criminal cases in which defendants are tried together on different

counts, so that all the evidence is not germane to all the counts against

each defendant.” Id. Indeed, the Federal Rules of Criminal Procedure

in allowing joinder of defendants expressly contemplate as much: 
17

“All defendants need not be charged in each count.” Fed. R. Crim. P.

8(b). 

Bohn and Hurley claim prejudice from the spillover of

evidence portraying Lore in a more negative light than they or relating

to the false accident charge, but their arguments in this regard also

fail. We long have held that “a defendant is not entitled to a

severance merely because evidence against a co-defendant is more

damaging than the evidence against the moving party.” United States

v. Somers, 496 F.2d 723, 730 (3d Cir. 1974). Instead, the relevant

inquiry is “whether the jury will be able to compartmentalize the

evidence as it relates to separate defendants in view of its volume and

limited admissibility.” United States v. Davis, 397 F.3d 173, 182 (3d

Cir. 2005) (internal quotation marks omitted). In this case the false

accident claim charge underlying the claim of prejudice was relatively

straightforward and discrete, not involving overly technical or

scientific issues. In these circumstances we do not doubt that the jury

reasonably could have been expected to compartmentalize the

evidence as it related to Lore and actually did so. See id. Moreover,

the district court instructed the jury several times to compartmentalize

the evidence by considering the evidence separately as to each

defendant and each count. We presume that the jury followed the

instructions, and thus we regard the instructions as “persuasive

evidence that refusals to sever did not prejudice the defendant[s.]” 

Urban, 404 F.3d at 776 (citing United States v. Voigt, 89 F.3d 1050,

1096 (3d Cir. 1996)). 

Finally, defendants do not satisfy their heavy burden by

claiming that the district court abused its discretion in denying their

renewed motions to sever after an incident during the trial in which

certain jurors reported that Lore had walked closer to them outside of

the courtroom than they would have expected. Though threats made to

a juror in some instances could undermine a defendant’s right to a fair

and impartial trial, we have no reason to characterize Lore’s conduct

in walking near jurors as a threat to the jurors or to believe that it

undermined defendants’ right to a fair trial. In this regard we point to

the district court’s description of the incident:

Several of the jurors mentioned to [the Court] today

that they felt that Mr. Lore was walking in their

vicinity at an uncomfortably close range. He said

nothing to them. He did not eyeball them or anything,

but they noticed it to the degree that they mentioned it
18

to [the Court]. They hastened to add that they didn’t

feel anything improper had been done. And it didn’t

affect their ability to, you know, perceive the events in

the courtroom without bias at all. 

J.A. at 4461 (emphasis added). In denying the motion for severance,

the court explained that the incident did not involve any

communication, either verbal or non-verbal, and that the occurrence

was the inevitable result of persons involved in the case occupying

common areas, like sidewalks. Moreover, “out of extreme caution,”

the court instructed defense counsel to keep their clients “in tow, at all

times.” J.A. at 4487. On this record, we cannot hold that the district

court abused its discretion in denying the motions to sever. 

C. Bohn’s Fifth Amendment Challenge 

Bohn contends that the district court committed reversible

error in denying her two motions for mistrial based upon perceived

Fifth Amendment violations stemming from two sources: (1) a

statement made by the prosecution in its opening; and (2) an answer

given by a witness during trial. In this regard we observe that Bohn

did not testify. Our review of the record satisfies us that the district

court properly denied the motions for mistrial. 

1. Statement by Prosecution 

The standard of review for allegedly prejudicial comments by

the prosecution in its opening statement varies depending upon

whether the error is constitutional or non-constitutional. Helbling,

209 F.3d at 241. “If the error is non-constitutional, we will affirm

when it is highly probable that the error did not contribute to the

judgment”; but “if the error is constitutional, we will affirm if we find

that the error is harmless beyond a reasonable doubt.” Id. (internal

citations and quotations omitted). Here we are satisfied that even

under the most stringent harmless error analysis, we cannot conclude

that the statement to which Bohn points in the prosecution’s opening

prejudiced her. The allegedly prejudicial comment to which she

points was in the prosecutor’s discussion of the service provider fraud

and was as follows:

I’m going to call as witnesses two of the contractors

[involved in the scheme], Mr. Vito Ballotta [sic] and

Mr. Joe Toscano. Wait until you hear Joe Toscano’s
Bohn did not object to the statement at the time the prosecutor 15

made it. But counsel for Lore did object, and his objection preserved the

objection for all defendants inasmuch as the district court deemed “all

defense counsel [to] join in every objection in every application, unless

[counsel] expressly opt[ed] out.” J.A. at 586. 

19

scam. Joe Toscano has a fence company in Bayonne. 

Personal friend of Joe Lore’s. In fact, Mr. G’Sell will

tell you that he, Mr. G’Sell and his wife, Mr. Toscano

and his wife and Mr. Lore and his girlfriend went out

to dinner. Mr. Toscano comes onboard to put up a

fence around– actually around part of the parking lot. 

Now again, remember what it is, 20 by 60 or 70 feet,

$57,000 to put a fence. He didn’t put one fence. And

I’ll show you photographs. He put up a fence and then

was told to put up another fence three inches from it. 

Three inches. Chainlink fence, three inches apart. The

first chainlink fence cost the Union $9,000. He put up

the exact same fence three inches apart from the other

one and charged them $20,000. Where did the money

go? They have some explaining to do. 

J.A. at 444 (emphasis added). Specifically, Bohn claims that the

prosecutor’s statement in the final sentence that we have quoted,

“They have some explaining to do,” violated her Fifth Amendment

protections. Bohn Br. at 36-37. But, as the district court explained 15

when it denied the motion for a mistrial predicated on the statement,

when the statement is considered in context it refers not to Bohn but

to the contractors, Bilotta and Toscano, whom the prosecutor said he

would call as witnesses. Indeed, the most natural reading of “they” at

the end of this remark is to treat it as referring to the witnesses the

prosecution identified at the outset of the remark, as opposed to Bohn,

whom the prosecutor did not even name. 

2. Statement by Angelone 

Bohn’s claim that her Fifth Amendment rights were violated

when, in response to questioning by counsel for Lore about why

certain checks were not supported by invoices, Angelone replied,

“You’d have to ask Denise. She handled the checkbook,” is similarly

unavailing. J.A. at 2673. Bohn claims this remark caused the jury to

perceive her as “the best person . . . to come forward to explain

financial irregularities or purported criminality.” Bohn Br. at 39. We
20

review the denial of a motion for a mistrial based on a witness’s

allegedly prejudicial comments for an abuse of discretion. United

States v. Xavier, 2 F.3d 1281, 1285 (3d Cir. 1993). In reviewing the

denial of her motion on that standard, three factors guide our analysis:

(1) whether Angelone’s remarks were pronounced and persistent,

creating a likelihood they would mislead and prejudice the jury; (2)

the strength of the other evidence; and (3) curative action taken by the

district court. See id. Here, a single statement by a witness whose

testimony spanned five days hardly can be deemed “pronounced and

persistent,” and the record contains strong evidence of the extent of

Bohn’s participation in the illegal schemes. Moreover, even though

Bohn declined the district court’s offer to issue a specific curative

instruction at the time of Angelone’s statement, the court

subsequently instructed the jury regarding the defendants’ right to

refrain from testifying. 

D. Bohn’s Sixth Amendment Confrontation Clause Challenge

Next Bohn claims that the district court violated her Sixth

Amendment Confrontation Clause rights because it placed limitations

on her cross-examination of a prosecution witness, Sharon Carballo,

regarding Carballo’s drug use over a decade earlier and her present

recovery treatment. The Supreme Court long has recognized that “the

Confrontation Clause guarantees an opportunity for effective crossexamination, not cross-examination that is effective in whatever way,

and to whatever extent, the defense might wish.” Delaware v.

Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 294 (1985) (per curiam)

(emphasis in original). But a district court “retains wide latitude

insofar as the Confrontation Clause is concerned to impose reasonable

limits” on cross-examination to avoid, among other things,

harassment, prejudice, confusion of issues, or interrogation that is

only marginally relevant or is repetitive. United States v. Mussare,

405 F.3d 161, 169 (3d Cir. 2005) (internal citation omitted). 

Accordingly, a court of appeals reviews limitations on crossexamination for an abuse of discretion. Id. If we determine that there

was an abuse of discretion, we then must review the error to see if it is

harmless. United States v. Casoni, 950 F.2d 893, 902 (3d Cir. 1991). 

We are satisfied that the district court did not abuse its

discretion in limiting Bohn’s cross-examination of Carballo. The

prosecution called Carballo to demonstrate Bohn’s abuse in the use of

union credit cards. In order to determine the permissible scope of

cross-examination the district court allowed Bohn’s counsel to
We believe that the court was referring to processing 16

“information” though it did not use that word.

21

question Carballo at a voir dire outside of the presence of the jury. At

that time Carballo explained that she was a recovering heroin addict

who has been on a treatment program under the supervision of a

physician and counselors. She further explained that within that

program she takes methadose, a mild form of methadone that her

physician prescribed. Carballo also admitted that she had used

cocaine eleven years earlier and she acknowledged that she had been

convicted of the offense of cocaine possession in 1989, for which she

had been placed on probation. The district court ruled that the

conviction could not be used on cross-examination and determined

that her past drug use and present methadose treatment did not affect

her demeanor, method of expression, or apparent ability to process. 

16

In reaching its conclusions the district court acted well within

its discretion in limiting the scope of Bohn’s cross-examination of

Carballo. Moreover, the court properly adhered to its ruling in 

denying Bohn’s counsel’s subsequent attempt to impeach Carballo’s

account of receiving gifts of champagne from Bohn predicated on the

attorney’s statement that, “in his experience recovering drug users

should remain alcohol-free as well as drug-free.” Bohn Br. at 42-43. 

Considering that Carballo’s past drug use and present recovery efforts

had no connection to her testimony concerning Bohn’s spending

habits and use of union credit cards, and did not affect her credibility

as a witness, the district court did not abuse its discretion by limiting

the cross-examination of Carballo to exclude reference to these

matters. 

E. Lore’s Sixth Amendment Confrontation Clause Challenge

Lore claims that the admission and misuse of grand jury

testimony of defendants Hurley and Rackley, who did not testify,

violated his Sixth Amendment rights. Specifically, Lore asserts that

the grand jury testimony was testimonial hearsay inadmissible under

Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354 (2004). We

exercise plenary review over Confrontation Clause challenges. 

United States v. Trala, 386 F.3d 536, 543 (3d Cir. 2004) (internal

citation omitted). If evidence was admitted in contravention of Lore’s

confrontation rights, we must consider whether the error was harmless

beyond a reasonable doubt. See Lilly v. Virginia, 527 U.S. 116, 140,

119 S.Ct. 1887, 1901 (1999); United States v. Hinton, 423 F.3d 355,
22

362 (3d Cir. 2005). 

The Confrontation Clause of the Sixth Amendment affords an

accused the fundamental right to confront the witnesses against him. 

Crawford, 541 U.S. at 42, 124 S.Ct. at 1359. The central function of

this right is to protect the accused from the use of ex parte

examinations as evidence against him in a criminal trial. Id. at 50,

124 S.Ct. at 1363. Accordingly, the Confrontation Clause prohibits

the admission of testimonial statements made by witnesses outside of

court, unless the witnesses are unavailable and the defendant had a

previous opportunity to cross examine him or her. Id. at 59, 124 

S.Ct. at 1369; United States v. Hendricks, 395 F.3d 173, 178-79 (3d

Cir. 2005).

 Hurley’s and Rackley’s grand jury testimony was

unquestionably “testimonial” within Crawford. See id. at 64, 124

S.Ct. at 1372 (listing grand jury testimony among examples of

“plainly testimonial statements”). Nonetheless, a conclusion that the

grand jury testimony was admitted properly is not inconsistent with

Crawford. As we held in Trala, testimonial statements are admissible

without prior cross-examination if they are not offered for their truth. 

386 F.3d at 544 (“Crawford does not apply where the reliability of

testimonial evidence is not at issue[.]”); see also Crawford, 541 U.S.

at 59 n.9, 124 S.Ct. at 1369 n.9 (“The [Confrontation] Clause also

does not bar the use of testimonial statements for purposes other than

establishing the truth of the matter asserted.”). As the district court

observed, the grand jury testimony contains self-exculpatory

statements denying all wrongdoing. Thus, as in Trala, these

statements “were admitted because they were so obviously false.”

386 F.3d at 544-45. In addition to self-exculpatory statements, the

district court described the balance of the statements as factual

statements “totally innocuous as to the co-defendants based upon

what’s already in the record.” J.A. at 5221-22. 

In any event, assuming, but not deciding, that the admission of

these statements violated Lore’s Sixth Amendment rights, the error

was harmless beyond a reasonable doubt inasmuch as there was

overwhelming evidence of Lore’s participation in the conspiracy. 

This evidence included testimony from other witnesses who set forth

in convincing detail Lore’s participation in the salary diversion and

kickback schemes, and this testimony was corroborated independently

of the challenged grand jury statements. Moreover, the questioned

grand jury testimony did not name Lore, and the testimony was
As we discussed above, the district court also instructed the jury 17

to compartmentalize the evidence and to consider the evidence

separately as to each defendant and each count. 

23

“totally innocuous” and duplicative of other record evidence. 

Finally, the district court properly instructed the jury to

consider Hurley’s grand jury testimony only in connection with the

government’s case against him and likewise to consider Rackley’s

grand jury testimony only with respect to the case against him. In 17

accordance with the instruction, in summation the prosecution

discussed the grand jury testimony only in the way that the court

instructed the jury that it could be used. 

F. Purported Prosecutorial Misconduct 

Lore contends that he is entitled to a new trial because of the

prosecutor’s “pervasive . . . misconduct” during his summation and

rebuttal arguments. See Lore Br. at 40. Specifically, Lore claims: (1)

that the prosecution misrepresented the contents of a stipulation; (2)

engaged in improper vouching; (3) impermissibly shifted the burden

of proof to him; and (4) gratuitously attacked defense counsel. 

In reviewing the statements underlying Lore’s claim of

prosecutorial misconduct, we are mindful of the Supreme Court’s

admonition that: 

a criminal conviction is not to be lightly overturned on

the basis of a prosecutor’s comments standing alone,

for the statements or conduct must be viewed in

context; only by so doing can it be determined whether

the prosecutor’s conduct affected the fairness of the

trial.

United States v. Young, 470 U.S. 1, 11, 105 S.Ct. 1038, 1044 (1985). 

Accordingly, we review the district court’s ruling on any

contemporaneous objections for an abuse of discretion. United States

v. Brennan, 326 F.3d 176, 182 (3d Cir. 2003). If an appellate court

finds that there has been prosecutorial misconduct, it should reverse

unless the error is harmless. Id. (citing United States v. Zehrbach, 47

F.3d 1252, 1265 (3d Cir. 1995) (en banc)). An error is deemed

harmless if the court possesses “a sure conviction that [it] did not

prejudice the defendant.” Zehrbach, 47 F.3d at 1265 (internal
Lore asserts that all instances of purported prosecutorial 18

misconduct must be reviewed to determine if they were harmless errors

because he “duly objected” to them. Lore Br. at 41. Though Lore

provides citations to the record to demonstrate that there were

contemporaneous objections for three bases to support his claim of

misconduct, see J.A. at 4664 (use of stipulation), 4665-67 (shifting

burden), 4903-04 (attacks on counsel), he fails to provide a reference as

required by Third Circuit Local Appellate Rules to indicate “specific

pages of the appendix or place in the proceedings at which [his objection

to vouching] was raised, objected to and ruled upon.” 3d Cir. L.A.R.

28.1. Nevertheless, while a non-contemporaneous objection is reviewed

for plain error, Brennan, 326 F.3d at 182, thus suggesting that we should

use two different standards of review on the misconduct claim, in reality

the standard of review makes no difference in this case for the vouching

claim fails under either standard. 

24

quotation marks omitted). “Any non-contemporaneous objections are

subject to plain error review.” Brennan, 326 F.3d at 182. After our 18

review, we find Lore’s various challenges to the prosecution’s

summation and rebuttal unpersuasive. 

1. Representation of Stipulation

Lore claims that the prosecution misrepresented the contents

of a stipulation related to the 1990 civil RICO action that the

government brought against Local 1588. The parties agreed on the

stipulation after defendants’ counsel sought to impeach G’Sell and

Angelone with inconsistent deposition testimony in connection with

the RICO action that alleged a background of organized crime and

corruption in Local 1588. The government asserted that this

impeachment opened the door to the underlying subject matter of the

civil RICO action. In lieu of evidence concerning the civil suit, the

parties agreed on a stipulation which the prosecutor read to the jury. 

But before the prosecutor read it, the district court explained to the

jury that:

[A stipulation] is a long word that means that the

parties have agreed that a certain fact or facts exist. 

So, the Government and each of the defendants have

entered into this as a stipulated fact. And you may,

therefore, regard these facts that [the prosecutor] is

going to read to you as proven in the case. 
25

J.A. at 3735. The prosecutor then read the following stipulation to the

jury: 

The parties hereby stipulate in 1992 and thereafter, the

Executive Board of Local 1588 agreed with the Federal

Government that the officers and employees of the

Local were not permitted to associate with Joseph Lore

who was neither a member nor an employee of the

Local with regard to any business of the Local. The

Board further agreed that it would not prohibit purely

social contact between Denise Bohn, who was then an

employee of the Local[,] and Mr. Lore. As long as that

contact did not occur in or about the waterfront,

including the Local’s offices. 

J.A. at 3735-36. Defendants aggressively cross examined G’Sell

concerning his prior deposition testimony in the civil RICO litigation

in which he denied that Lore had been involved in the affairs of Local

1588. At trial, G’Sell explained that he lied during his depositions to

protect Lore. 

Lore moved for a mistrial based on the prosecution’s

representation in summation that the stipulation supported the

inference that Lore had been involved in the affairs of Local 1588. 

This challenge lacks merit. As the court explained to the jury, it could

regard the facts contained in the stipulation “as proven in the case.” 

Defendants do not point to limitations that the parties placed on the

stipulation. Absent limitations, it was not improper for the

prosecution to draw fair inferences from the stipulation. United States

v. Sullivan, 803 F.2d 87, 91 (3d Cir. 1986) (“[T]he prosecution may

ask the jury to draw permissible inferences from anything that appears

in the record.”) (internal quotation marks and citation omitted). It was

reasonable and permissible to infer that Lore’s participation in the

affairs of Local 1588 precipitated its agreement with the government

to bar Lore from its affairs. Moreover, even if there had been an error

stemming from the prosecutor’s argument, it would have been

harmless under even the most exacting standard in light of the

extensive testimony that defendants elicited from G’Sell that he lied

in connection with the civil RICO investigation to obscure Lore’s

involvement in union affairs. 

Lore also challenges certain remarks from the rebuttal

summation relating to the stipulation. However, contrary to Lore’s
26

argument, it does not appear that any defendant contemporaneously

objected to the purported misrepresentations he now cites in his brief. 

Accordingly, we review these comments for plain error. Brennan, 326

F.3d at 182 (“Any non-contemporaneous objections are subject to

plain error review.”). Our review of these remarks in the context of

the full trial does not reveal “egregious error or a manifest miscarriage

of justice” necessary to support a finding of plain error, or indeed any

error at all, warranting a new trial. Rather, as with its original

summation remarks, the prosecution was asking the jury to draw

inferences from the stipulated facts in evidence that were entered

without limitation. 

2. Vouching 

Lore submits that the prosecution improperly vouched for the

credibility of the government’s key witnesses, G’Sell and Angelone. 

A prosecutor improperly vouches when he (1) assures the jury that the

testimony of a government witness is credible, and (2) he bases his

assurance on either his claimed personal knowledge or other

information not contained in the record. Brennan, 326 F.3d at 183

(citing United States v. Walker, 155 F.3d 180, 187 (3d Cir. 1998)). 

But when we determine whether statements to the jury improperly

vouched for a witness’s credibility we consider them in the context in

which they were given. Id. at 186. In the context of this case we

conclude that the challenged remarks did not constitute improper

vouching. 

The first statement to which Lore points arose during the

prosecution’s summation. The prosecutor framed his comment as a

response to a “particular remark” made by the defense in its opening

that the prosecutor perceived as suggesting impropriety in using

G’Sell and Angelone as prosecution witnesses:

And I suggest to you, ladies and gentlemen, that that

particular remark indicates that not only – not the

Government is stupid, but the Government was corrupt

in putting up these witnesses just to win the case. 

So corrupt or stupid or both, in order to win, would the

Government suborn perjury? Or am I simply stupid

because I didn’t bother to corroborate what Mr. G’Sell

said in any of his disclosure of this story or bother to

check on the story that Mr. Angelone told subsequent
27

to Mr. G’Sell? But as we go along, ladies and

gentlemen, you’ll see that not only was the story that

Mr. G’Sell told with regard to this embezzlement

corroborated by Mr. Angelone, but it was also

corroborated by other witnesses, other documentation

and other physical evidence. And that the case was

presented to you not as a collection of lies, perjured

testimony and fabricated documents, but in fact was

simply the truth based upon the testimony and based

upon the evidence that was presented. 

J.A. at 4676-77 (emphasis added). Although the prosecutor asked

rhetorical questions implying that he would not suborn perjury and

that G’Sell was credible, he did not base his assurance on claimed

personal knowledge or evidence outside the record. On the contrary,

following the rhetorical question the prosecutor explained that he

based his assertion on the evidence of record, namely “corroborat[ion]

by Mr. Angelone . . . [and] by other witnesses, other documentation

and other physical evidence.” Rather than invoke information not

contained in the record, the prosecutor urged the jury to consider “the

evidence that was presented.” 

Lore also points to selected references by the prosecution to

the fact that the government had subpoenaed business records of

Local 1588 prior to G’Sell’s cooperation, thus eliminating any

opportunity to fashion his testimony to the business records. Notably,

as the district court explained, the fact that the government had

obtained business records by subpoena was before the jury. Viewed

in context, these comments amounted to nothing more than an attempt

to dismiss the suggestion that G’Sell could have fabricated the version

of events that he recounted at trial, particularly because his version of

events was consistent with the documentary evidence the government

obtained through its subpoena. Moreover, throughout the comments

Lore cites, the prosecutor referenced the corroborating evidence of

record. Overall, there was no suggestion in the prosecutor’s

comments that he had material personal knowledge or other

information not contained in the record. 

Finally, Lore points to the prosecution’s comment that

“[S]tupid or not, the Government might like blind squirrel [sic] might

have found a flaw in [G’Sell’s version of events], maybe over the

course of seven or eight years.” Lore Br. at 52 (citing J.A. at 4680). 

But considered in context, this statement merely called attention to the
28

absence of evidence contradicting G’Sell’s version of events and to

the intricacies of the testimony that he was incapable of fabricating. It

is significant that the prosecutor followed immediately with specific

examples drawn from the evidence relating to the participation of the

co-defendants to buttress the notion that G’Sell was incapable of

fabricating the particulars of the conspiracy. Thus, considering that

defendants vigorously challenged G’Sell’s and Angelone’s testimony,

the prosecutor’s remarks should be understood as an argument that any

suggestion that G’Sell was lying was not supported by the evidence of

record– an argument that does not amount to vouching. See United

States v. Walker, 155 F.3d at 187 (“A prosecutor may argue in the

negative that the assertions made by defense counsel that a witness is

lying are not supported by the testimony in the record.”). 

3. Shifting Burden of Proof 

According to Lore, the prosecutor impermissibly shifted the

burden of proof to the defense in his summation by stating that “the

defense has several dilemmas that they are burdened with here” and

referring to various “dilemmas” the defendants faced after the

presentation of evidence. This argument lacks merit. As we have

explained, there is nothing improper about a prosecutor “attempt[ing]

to focus the jury’s attention on holes in the defense’s theory.” United

States v. Balter, 91 F.3d 427, 441 (3d Cir. 1996). “Such a comment

does not implicate any of the burden-shifting concerns that are raised

when a prosecutor points to a defendant’s failure to testify or

improperly suggests that the defendant has the burden of producing

evidence.” Id. Such is the case here– the prosecutor’s references to

“dilemmas” that “burdened” the defense were attempts to focus the

jury’s attention on perceived deficiencies in the defendants’ theory in

light of the evidence presented at trial. Accordingly, the district court

did not abuse its discretion in rejecting this challenge. 

4. Attack on Defense Counsel 

Lore contends that the prosecutor made a “gratuitous personal

attack” on defense counsel by posing a rhetorical question during

rebuttal summation asking whether the cross-examination of G’Sell

was “disingenuous” or “clever lawyering.” Lore Br. at 55-57. 

Though personal attacks on the character of defense counsel in some

instances can rise to the level of misconduct, the single remark here

regarding defense tactics falls far short of that level. See United States

v. Millar, 79 F.3d 338, 343-44 (2d Cir. 1996) (holding that
29

prosecution’s reference to defense as “hog wash” and a “smoke

screen” did not warrant new trial); United States v. Santiago, 46 F.3d

885, 892 (9th Cir. 1995) (holding that there was no error in permitting

prosecution comments that defense was devaluing the victim and

“dirtying up” witnesses); United States v. Hartmann, 958 F.2d 774,

785 (7th Cir. 1992) (holding that there was no error in allowing

prosecution remark that defense told a “whopper” and tried to mislead

the jury); cf. United States v. Friedman, 909 F.2d 705, 709 (2d Cir.

1990) (holding that it was plainly improper for prosecutor to remark,

“[w]hile some people . . . prosecute drug dealers and try to see them

brought to justice, there are others who defend them, try to get them

off, perhaps even for high fees”). Hartmann is particularly instructive

for, as the Court of Appeals for the Seventh Circuit has explained,

there is a distinction between comments directed at the tactics and

arguments advanced by defense counsel and those aimed at the

character of the attorneys themselves, with nothing inherently

improper about the former. See Hartmann, 958 F.2d at 785. Our

review of the transcript convinces us that the comments at issue here

amount to the former.

Moreover, when Lore’s counsel’s earlier remarks are

considered, it is evident that the prosecutor’s summation demonstrates

that “the prosecution was only meeting the defense on a level of the

defense’s own choosing.” United States v. LaSorsa, 480 F.2d 522,

526 (2d Cir. 1973). After all, prior to the rebuttal summation he now

challenges, counsel for Lore implied that the prosecution may have

suborned perjury or willfully permitted the prosecution witnesses to

testify falsely. See Supp. App. at 88-89 (“This idea of suborning

perjury . . . .”). In this context, the prosecution’s criticism of defense

tactics appears to be more of a defensive response rather than an

affirmative attack. See United States v. Pungitore, 910 F.2d 1084,

1126-27 (3d Cir. 1990) (explaining the “invited response doctrine,”

whereby “a prosecutor may neutralize improper defense arguments but

may not rely on them as a ‘springboard’ for the launching of

affirmative attacks upon the defendants.”). Thus, the remark about

“disingenuous” or “clever” lawyering– mildly inappropriate, at worst– 

does not rise to the level of severity sufficient to require reversal. 

G. Sentencing Challenges 

The district court sentenced the defendants prior to the

Supreme Court’s decision in United States v. Booker, 543 U.S. __ ,

125 S.Ct. 738, holding that mandatory enhancement of a sentence
30

under the Sentencing Guidelines based on facts found by the court

alone, in the absence of a waiver of a jury trial, violates the Sixth

Amendment. Id. at , 125 S.Ct. at 756. To remedy the constitutional

infirmity of the Guidelines, the Court severed that portion of the

statute making application of the Guidelines mandatory, rendering

them effectively advisory. Id. at , 125 S.Ct. at 764. Bohn and Lore

challenge their sentences in light of Booker. The government does not

oppose Bohn’s challenge but contends that we should not vacate

Lore’s sentence because “the District Court offered an alternative

sentencing rationale, in which it expressly stated its intention to

achieve the same Guidelines range through a different analysis.” 

Gov’t Br. at 85. 

The government, however, overstates the district court’s

“alternative sentencing rationale.” While the district court offered an

alternative to its loss calculation, the government points to nothing

that suggests that it contemplated a framework that was advisory

rather than mandatory. Nor are we able to “ascertain whether the

District Court would have imposed a greater or lesser sentence under

an advisory framework,” and therefore prejudice in a plain error

analysis “can be presumed.” See United States v. Davis, 407 F.3d

162, 164-65 (3d Cir. 2005) (en banc). Moreover, notwithstanding the

alternative to the loss calculation, the problem of enhancements based

upon facts found by the district court by a preponderance of the

evidence still remains. See Lore App. at 267-77 (district court

imposing enhancement for obstruction of justice based upon a

preponderance of the evidence). 

Inasmuch as we have concluded that sentencing issues that

arise in light of Booker best are determined by the district court in the

first instance, Davis, 407 F.3d at 165-66, we are satisfied that the

district court should resentence Bohn and Lore. The district court,

however, need not resentence Pelliccia or Hurley as neither challenges

his sentence.

IV. CONCLUSION

For the foregoing reasons, we will affirm the judgments of

conviction and sentence of Pelliccia and Hurley and will affirm the

judgments of conviction of Lore and Bohn, but we will vacate the

sentences imposed on them and will remand their cases to the district

court for resentencing.