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. e du/thir dc ir c uit_2001/278Filed November 28, 2001

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 00-1446

UNITED STATES OF AMERICA

v.

FRANK ANTICO, Appellant

On Appeal From the United States District Court For the Eastern District of Pennsylvania (D.C. Crim. No. 98-242-01) District Judge: Honorable Jan E. DuBois

Argued: April 5, 2001

Before: SCIRICA, AMBRO AND GIBSON* Circuit Judges

(Filed: November 28, 2001)

___________________________________________________ ______________ *Honorable John R. Gibson, United States Circuit Ju dge for the Eighth Circuit, sitting by designation.Thomas Colas Carroll,

Esquire (Argued) Mark E. Cedrone, Esquire

Carroll & Cedrone Suite 940 Public Ledger Building 150 S. Independence Mall West

6th and Chestnut Streets Philadelphia, PA 19106

Attorneys for Appellant, Frank Antico, Sr.

Michael R. Stiles, Esquire United States Attorney,
Eastern District of Pennsylvania

Robert E. Courtney, Esquire Assistant United States Attorney Chief, Organized Crime Division

Walter S. Batty, Jr., Esquire Assistant United States Attorney

Richard P. Barrett, Esquire (Argued) Assistant United States Attorney 615 Chestnut Street, Suite 1250 Philadelphia, PA 19106

Attorneys for Appellee, United States
of America

OPINION OF THE COURT

AMBRO, Circuit Judge:

Frank Antico, Sr. ("Antico") appeals his conviction and
sentence in the United States District Court for th e Eastern District of Pennsylvania ("District Court") on one count of racketeering in violation of 18 U.S.C. S 1962(c)--p art of the Racketeer Influenced and Corrupt Organizations Act ("RICO"),1 nine substantive counts of extortion in violation

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1. Section 1962(c) provides that

2of 18 U.S.C. S 1951 (known as the Hobbs Act), and e ight

substantive counts of wire fraud in violation of 18 U.S.C.
S 1343.

On appeal, Antico asserts that he is entitled to a new trial for three reasons: (1) the District Court's f ailure to instruct the jury, during its charge on Hobbs Act e xtortion, of the necessity of finding an inducement or a quid pro quo; (2) the failure of the Government to prove a scheme to defraud the citizens of Philadelphia of their intan gible right to his honest services; and (3) the insufficiency o f the District Court's jury instruction on materiality as an element of wire fraud. We reject these allegations of error and affirm Antico's conviction on Counts One throug h Sixteen of the superseding indictment.

Antico also argues that his conviction of wire frau d on Counts Seventeen and Eighteen, which involve his se curing permits for a prostitution business after he left t he City of Philadelphia's Department of Licenses and Inspectio ns, should be reversed as a result of the Supreme Court 's ruling in Cleveland v. United States, 531 U.S. 12 ( 2000), that such a permit does not constitute property wit hin the meaning of the wire fraud statute. We agree, and re verse Antico's conviction on these counts.

Finally, Antico challenges the District Court's enhancement of his sentence for a leadership role i n an otherwise extensive criminal extortion activity and its loss computation on the wire fraud counts. In light of o ur reversal of conviction on two of the wire fraud cou nts, and

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[i]t shall be unlawful for any person employ ed by or associated
with any enterprise engaged in, or the activities of which affect,
interstate or foreign commerce, to conduct or participa te, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlaw ful debt.

In order to find a pattern of racketeering activity , the Government must prove that at least two of the sixteen racketeering acts charged were connected by a common scheme, plan or motive, and t hat at least two of the racketeering acts were committed within ten years of each other (one of which occurred within the five year statute of limitations).

3for other reasons stated in this opinion, we vacate Antico's

sentence and remand to the District Court for resen tencing.

I. Factual and Procedural Background

Antico's indiscretions, which we summarize in this section, expose a pervasive abuse of government ser vices. In the following recitation of the schemes on which Antico's conviction was based, we construe the facts in the light most favorable to the Government, as we must follow ing the jury's guilty verdict. Glasser v. United States , 3 15 U.S. 60, 80 (1942).

Between 1983 and January, 1996, Antico held various positions at the Department of Licenses and Inspect ions ("L&I") for the City of Philadelphia (the"City"). L &I's function is to administer and enforce the City's co de requirements, including building, electrical, fire, health, housing, business, and zoning regulations. Official s of L&I are empowered to issue zoning and use permits and licenses according to a first-come-first-served pol icy, conduct inspections, and enforce applicable codes a nd regulations through citations and cease and desist orders. Persons aggrieved by these decisions may appeal to the Zoning Board of Adjustment ("ZBA"). Antico worked a t L&I at various times as a Zoning Examiner, a Code Administrator, and the Business Regulatory Enforcem ent Director. In these positions, he had the discretion ary authority to approve zoning and use permits and lic enses, and to cite and close businesses for violations of the City's ordinances and the laws of Pennsylvania, particular ly those governing adult cabarets and topless bars. The exto rtion
and wire fraud schemes that Antico concocted while he was a public official at L&I and after he left its empl oy are detailed below.

A. Extortion Schemes -- RICO Acts 1-13, 15, 16 and
Extortion Counts 2-10

1. Extortion of Westside Check Cashing

On December 22, 1994, L&I closed for zoning violati ons one of Westside Check Cashing's stores, located at 5th and Lehigh Avenues in Philadelphia. The controller of t he check

4cashing business met with Antico the next day to di scuss

reopening the business. Antico explained that Wests ide had to file a new application for a zoning and/or use registration permit and make other changes.

Several days later, Antico called the controller an d the owner of the business and told them he wanted a pie ce of jewelry to give to his wife for their anniversary. They selected some items, including a diamond pendant appraised at $3,275, and sent them to Antico's offi ce by
courier. The owner and his controller testified tha t they decided to send the jewelry to Antico and not bill him for it because of Antico's position with L&I. The zoning i ssue that led to the store closing on December 22 was still p ending and they were concerned that Antico would use his p osition with L&I to keep the business closed. They understo od from
their conversation with Antico that he did not inte nd, nor did he ever offer, to pay for the jewelry. Once the conditions of the permit were satisfied, Antico permitted the store to

reopen.

2. Extortion of Maureen McCausland2

Maureen McCausland met Antico in 1983 when Antico was working in L&I's zoning section. McCausland approached Antico to obtain a zoning and/or use per mit registration for a prostitution business at 2132 Ma rket Street in Philadelphia. Her zoning application read "nude modeling studio" and Antico advised her instead to call the business a "modeling studio" on the application. McCausland did so, and she received the license. Sh e later paid Antico $500 for getting the permit for her.

This began a pattern of Antico receiving payments f rom McCausland for approval of zoning and/or use regist ration permits for a number of other prostitution business es she opened over the years. She paid Antico $500 when sh e applied for the permit and $500 when she received i t. McCausland also paid Antico additional sums of mone y and had sex with him so that he would use his position at L&I

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2. The Maureen McCausland extortion scheme was char ged as a racketeering act but not a separate, substantive Ho bbs Act extortion

count.

5to protect her business. For example, when Antico w as

placed in charge of enforcement, he alerted her to the police department's efforts to close her business. McCausl and estimated that Antico extorted approximately $8,000 from her during the period covered by the superseding
indictment.

McCausland's testimony was corroborated by the applications for zoning and use registration permit s introduced into evidence. These applications were p repared by Antico and listed the use as "modeling studio" o r "physical therapy."

3. Extortion of Adult Cabarets in Philadelphia-- Wizzards, Pin Ups, Tattletales and Teazers

Between 1993 and 1995, Antico served as the Busines s Regulatory Enforcement Director for L&I, supervisin g the unit that enforced compliance with the zoning code. Most pertinent to this scheme, Antico was responsible fo r regulating adult cabarets and their compliance with the zoning code.

The Philadelphia Code defines an adult cabaret as"[ a]n adult club, restaurant, theater, hall or similar pl ace which features topless dancers, go-go dancers, exotic dan cers, strippers, male or female impersonators or similar entertainers exhibiting specified anatomical areas or performing specified sexual activities." Philadelph ia Code
S 14-1605. A business that meets this definition is considered a regulated use and is prohibited from o perating within 1,000 feet of another regulated use or withi n 500 feet of a residential area. According to L&I polici es, all adult cabarets are required to be licensed or to receive a variance from the ZBA. In addition, the dancers at a license d cabaret (or a cabaret permitted to operate as such while it sought a license) cannot perform in a lewd or obscene mann er.3

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3. L&I incorporated the Philadelphia Code definitio n of obscenity in determining what constituted a lewd performance by a dancer. See Philadelphia Code SS 10-1100 through -1103. Dancers were thereby prohibited from touching patrons and participating in actual or simulated sexual acts on stage. Additionally, the d ancers were required to wear bottoms and latex pasties to cover their br easts.

6a. Wizzards

The scheme with respect to Antico's extortion of Wi zzards began with John Messina, John Meehan, and Frank Ant ico, Jr. (Antico's son) forming Pan Enterprises, Inc. to operate Wizzards, an adult cabaret located at 38th and Ches tnut Streets in Philadelphia. Initially, Messina provide d the start-up money and held 89% of the corporation. Mes sina gave 10% and the manager position to Meehan because of his experience in operating topless clubs. Meehan, in turn, introduced Messina to Antico, Jr.

Meehan and Antico, Jr. told Messina that if Antico, Jr. received a 1% interest in Pan Enterprises and a pos ition as a weekend manager, defendant Antico would use his position with L&I to help Wizzards operate. Messina agreed to this arrangement and to paying Meehan and Antico , Jr. part of their weekly salaries in cash without repor ting it to the taxing authorities.

Antico guided Wizzards through the permitting and licensing process at L&I. In addition, when Wizzard s opened for business on September 23, 1993, Antico arranged to have two competing clubs shut down for code violations. After Wizzards opened, Antico frequente d the club and received complimentary drinks, food, and p arties for himself and his friends. While Antico was prese nt, the
dancers violated the code restrictions on lewd danc ing, yet
Antico issued neither citations nor cease and desis t orders.

After operating Wizzards for a few months, Messina and other investors began to quarrel with Meehan and An tico, Jr. over the club's management. Although the club w as crowded and appeared to be doing well, the books di d not
reflect this success. When Messina and the investor s tried to take a more active role in the club's management
, Meehan and Antico, Jr. objected and threatened to h ave L&I shut the club down. In fact, in March 1994, Ant ico
came into the club and closed it down because the d ancers were performing in a lewd manner. A former employee of Wizzards testified that Meehan told that employee t hat he knew the club would be shut down, but would be perm itted to reopen the next day. According to this employee, Meehan was "flexing his muscles."

7In June 1994, Eugene Johnson took over Messina's

ownership interest in Wizzards as repayment of a de bt. Johnson brought in Dorothy Davis from his New Jerse y establishment to observe how Meehan and Antico, Jr. operated the club. Davis reported that most of the employees, including Meehan and Antico, Jr., were g etting paid cash under the table, that Antico, Jr. was bei ng paid a large salary for doing very little, and that the dancers were performing in violation of the L&I policies. J ohnson instructed Davis to put all employees on the books, cut Antico, Jr.'s salary or fire him, and require all d ancers to conform to L&I restrictions on dancing.

When Davis informed Meehan of these instructions, Meehan responded that Antico, Jr.'s father was the head of L&I and that Wizzards was operating at his mercy. O n June 16, 1994, Meehan and Antico, Jr. resigned their employment with Wizzards. Within two hours defendan t Antico closed Wizzards for lewd dancing.

b. Pin Ups

In August of 1995, Antico, Antico, Jr., and Meehan met with the owners of Pin Ups to discuss the sale of t he club to Antico, Jr. and Meehan. At a follow-up meeting, the owners turned down the offer made by Antico, Jr. an d Meehan. Two weeks later, on September 8, 1995, L&I inspectors arrived at Pin Ups, conducted an inspect ion and
closed the club for electrical violations.

Prior to the closure, some of the Pin Ups dancers k new the club was going to be shut down and arranged to dance at Tattletales, another topless club located nearby . The owners of Tattletales also knew that Pin Ups was go ing to be shut down and arranged for additional staffing a nd liquor for the night.

On the night of the inspection, one of the owners o f Pin Ups, suspecting that the closure was in response to their refusal to sell the club, told defendant Antico tha t if Pin Ups was not reopened the next day, he was going to" call the Feds." Antico permitted Pin Ups to reopen befor e the
electrical violations were corrected.

c. Tattletales

Steve Owens and Greg Bertino opened Tattletales in July 1995. Antico was a regular customer and advised the two

8on the Code and the obscenity rules. Antico took th em to

other topless clubs to view couch dancing and urged them to put a couch dancing room into Tattletales. Antic o told them to call him if they ever had any problems.

Despite Antico's advice, the dancers at the club di d not follow the dancing restrictions or the Code. Antico
, however, did not cite the club for violations. Inst ead, he was treated to free drinks, meals, and couch dances

. Owens and Bertino did this to gain favor with Antic o and to maintain good relations with L&I. The two also gave Antico $500.

d. Teazers

Thomas Killeen was an owner of Teazers, a topless c lub located at 20th Street and Oregon Avenue in Philade lphia. In connection with the opening on September 23, 199 3 of Wizzards, Antico closed Teazers and another bar own ed by Killeen because the dancers were violating L&I rest rictions.

Subsequent to its reopening, Antico began to patron ize Teazers. Killeen would socialize with Antico and gi ve him free drinks. Antico eventually asked Killeen for, a mong other things, the repeated use of one of Killeen's limousines from his limousine company. Killeen acquiesced beca use of Antico's position in L&I and never billed him for t he use. Killeen ultimately hired limousines from other comp anies
because he did not want Antico to be seen in one of his vehicles. In addition, Antico asked for, and Killee n let him use, six field-level box seats for several Phillies games. Antico gave Killeen a list of games he wanted to at tend and sent an L&I employee to pick up the tickets.

4. Beach Club

Frank Cascerceri was the owner of the Beach Club, a nightclub formerly located along the Delaware River in Philadelphia. Cascerceri testified that he built a pool at the club and hired an expediter4 to apply for permits f rom L&I.

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4. Expediters are independent contractors who, in e xchange for a fee, represent individuals and businesses before L&I and the ZBA. Expediters typically prepare the paperwork required to obtain permits, licenses, or variances by L&I or the ZBA. Expediters may interac t with employees of L&I during the process, and appear at public hearin gs before the ZBA.

9The expediter prepared the necessary application an d filed

it with L&I. Because the club was scheduled to open in the Spring of 1993, Cascerceri became frustrated when L &I delayed issuing the permit. He called Antico and ex plained the urgency of getting the permit. Antico told him that he was using the wrong expediter, and that he should h ire Elizabeth Ricciardi5 to expedite his application fo r the permit. Antico spoke to Ricciardi before Cascerceri did and urged her to take the employment.

To avoid the risk of not getting L&I approval, Casc erceri hired Ricciardi. He paid her $625 for her assistanc e, although Ricciardi testified that she did very litt le to obtain the permit. Shortly after he hired Ricciardi, Casce rceri received his approval from L&I.

5. Extortion of Barbara Williams6

Barbara Williams worked as an expediter in Philadel phia
from 1984 to 1989. To circumvent L&I's first-come-f irstserved rule of processing applications, Williams wo uld turn to Antico on her urgent matters and pay him to proc ess her paperwork ahead of others. She also paid Antico to prepare particularly complex zoning applications. Typically
, Williams would give Antico batches of permits to pr ocess at one time, and paid him according to the number of applications he processed. The payments ranged from $30 to $75 per application. Williams estimated that Ant ico extorted approximately $5,000 from her during her w ork as an expediter.

B. Mail and Wire Fraud Scheme Involving Elizabeth
Ricciardi -- RICO Acts 14A-F and Wire Fraud Counts
11-16

Antico's employment with L&I required him to refrai n from using his position to secure advantages for hi mself or his family members. The Philadelphia Code provides that

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5. Ricciardi is the subject of the mail and wire fr aud racketeering acts
and the substantive wire fraud offenses in Counts 1 1-16. See the
discussion of the Ricciardi mail and wire fraud sch emes, infra at part

I.B.

6. The Barbara Williams extortion scheme was charge d as a racketeering act but not a separate Hobbs Act extortion count.

10city employees must disclose publicly a conflict of interest

and recuse themselves from taking any official acti on in a matter where they have a financial interest.7 In ad dition, state ethics laws prohibited him from using his emp loyment for private pecuniary gain.8 See 65 Pa. C.S.A. SS 401-409, repealed by P.L. 729, No. 93, S 6(a)(2) (Oct. 15, 1 998), and replaced with 65 Pa. C.S.A. SS 1101.1-1108. These c ode provisions are implicated by Antico's arrangement w ith
Elizabeth Ricciardi.

In the late 1980s, Ricciardi had two children by An tico. Initally, Antico failed to make child support payme nts, forcing Ricciardi to file a child support petition in the Philadelphia Court of Common Pleas, Family Court

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7. Section 20-607 of the Philadelphia Code, titled Conflict of Interest, states in relevant part:

Unless there is public disclosure and disqua lification . . . , no City officer or employee shall be financially int erested in any legislation, including ordinances and resolutions, award, contract, lease, case, claim, decision, decree or judgment made by him in his official capacity . . ., nor shall any financial inte rest be held by a parent, spouse, child, brother, sister or like relat ive-in-law, or by any person, firm, partnership, corporation, busi ness association,

trustee or straw party for his or her benefit.

8. The State Ethics Act provides that "[n]o public official or public employee shall engage in conduct that constitutes a conflict of interest."
65 Pa. C.S.A. S 403. The Ethics Act defined a confl ict of interest as

follows:

Use by a public official or public employee of the authority of his office or employment or any confidential inf ormation received through his holding public office or employm ent for the private pecuniary benefit of himself, a member of hi s immediate family or a
business with which he or a member of his im mediate family is
associated. "Conflict" or "conflict of inter est" does not include

an action having a de minimis economic impact o r which affects to the same degree a class consisting of the genera l public or a subclass consisting of an industry, occupation or oth er group which includes the public official or public employee, a me mber of his immediate family or a business with which he or a memb er of his immediate family is associated.65 Pa. C.S.A. S 402. The statute currently in effec t is virtually

identical to the provision cited above. See 65 Pa. C.S.A. S 1 102.

119. The Philadelphia Sign Company, located in New Je rsey, was one of

Ricciardi's clients. Telephone calls from Ricciardi in Philadelphia to the client in New Jersey on six separate occasions in D ecember of 1993
serve as the basis for the substantive wire fraud o ffenses in Counts Eleven through Sixteen. The use of the mails with r espect to the same client constituted the mail fraud racketeering acts proven as predicate

acts under the RICO Count. Division. The child support order at that time was $60 per week. Antico volunteered to pay child support if Ri cciardi would withdraw the petition, which she agreed to do . He made three payments, then stopped.

In lieu of the payments, Antico offered to establis h Ricciardi as an expediter. She was reluctant to acc ept, knowing nothing about the expediting business, but Antico told her that he would take care of everything. Thi s was not an empty promise. Antico referred clients to Riccia rdi who needed licenses and permits from L&I. Ricciardi wou ld call
Antico when a client hired her. Antico would then t ell Ricciardi how to fill out the applications or would complete
them himself. Ricciardi was known to use Antico's o ffice at L&I to do her work, and he would have city employee s pick up and deliver her paperwork and watch her children

. Antico personally worked on 564 of the 748 building permit, and 288 of the 322 zoning permit, applicati ons filed by Ricciardi and submitted them under her name. 9 Moreover, Antico was the one who approved the permi ts and applications submitted by her business. Antico neither publicly disclosed a conflict of interest nor disqu alified himself from taking official action in these matter s, as required by Section 20-607 of the Philadelphia Code . As a result of this arrangement, Ricciardi admits to ear ning over $700,000 during the course of the arrangement.

In 1993, upon discovering that Antico was signing p ermit applications on behalf of Ricciardi, L&I Commission er Levin transferred Antico and moved the responsibility for permit approvals to a different manager. Antico was no lon ger the head of the zoning department, and his job responsi bilities no longer included approving permit applications.

12C. Wire Fraud Scheme Involving Maureen McCausland

Counts Seventeen and Eighteen10

In January 1996, Antico left L&I and established an expediting business in Philadelphia under the name Frank P. Antico, Zoning Consultant, Advisor, and Technici an of the Philadelphia Code. In 1997, Maureen McCausland requested Antico's services to reopen a prostitutio n business. Unbeknown to Antico, McCausland was cooperating with the Federal Bureau of Investigatio n ("FBI") at the time and this request was part of a Governme nt operation. Antico assisted McCausland with her perm it application, which declared the facility to be a mo deling studio/physical fitness business at 1212 Walnut Str eet, Philadelphia.11 Antico attempted to hide his involv ement by having another expediter submit the applications.

* * * * *

On September 30, 1998, a federal grand jury in the Eastern District of Pennsylvania returned an eighte en count superseding indictment. The Government charged Anti co with sixteen racketeering acts under the umbrella o f one RICO count (Count One), nine of which were also cha rged as substantive Hobbs Act extortion counts (Counts T wo through Ten), and six of which were charged as subs tantive wire fraud counts (Counts Eleven through Sixteen). Antico was charged with two additional substantive wire fr aud counts (Counts Seventeen and Eighteen) that do not fall under the RICO umbrella count. The jury convicted A ntico of all eighteen counts in the superseding indictmen t. With respect to the RICO count, the jury concluded that fifteen of the sixteen predicate racketeering acts were pro ven.12

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10. The Maureen McCausland wire fraud scheme charge d in Counts Seventeen and Eighteen is not part of the RICO Coun t. 11. The two communicated via interstate phone calls to set up meetings to discuss the application and how to circumvent th e L&I regulations. These conversations were taped by the FBI. 12. The jury concluded that Racketeering Act 2 was not proven. This act, which occurred in March 1993, was the exchange of $ 500 for obtaining the zoning and/or use registration permit that fals ely declared that McCausland operated a "modeling studio" at 2132 Mar ket Street. However, this is not fatal to the conviction on the RICO count because the jury concluded that Racketeering Acts 3 through 6, which pertained to the same extortion scheme involving McCausland, as well as Racketeering Acts 7 through 16, were proven.

13On April 28, 2000, Antico was sentenced to terms of

sixty-three months imprisonment on Counts One throu gh Ten (RICO and extortion) and to terms of sixty mont hs imprisonment on Counts Eleven through Eighteen (wir e fraud). All terms were to be served concurrently. 1 3 In addition, Antico was sentenced to three years super vised release, ordered to pay a fine of $10,000 and a spe cial assessment of $1,000, and ordered to forfeit $52,90 0.

II. Legal Discussion

This Court has jurisdiction of an appeal from a jud gment of conviction and sentencing pursuant to 28 U.S.C.S 1291. On appeal, Antico alleges three points of trial err or and challenges his sentence on two grounds. We address each allegation of error in turn.

A. Requirement of Inducement or Quid Pro Quo in Ho bbs
Act Extortion

Antico challenges the District Court's instructions to the jury with respect to Hobbs Act extortion under "col or of official right." The Hobbs Act provides in relevant part:

(a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any arti cle or commodity in commerce, by robbery or extorti on or attempts or conspires so to do, or commits o r threatens physical violence to any person or property in furtherance of a plan or purpose to do anyth ing in
violation of this section shall be fined not more than $10,000 or imprisoned not more than twenty y ears, or both.

(b) As used in this section--

. . .

(2) The term `extortion' means the obtaining of property from another, with his consent, ind uced

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13. The District Court grouped for sentencing purpo ses the RICO and extortion counts in one group and the wire fraud co unts in a second group. It then imposed a sentence based on the grou ps rather than on
the individual counts.

14by wrongful use of actual or threatened forc e,

violence, or fear, or under color of officia l right.

18 U.S.C. S 1951 (emphasis added). Thus, the statut e supports two classes of extortion: extortion induce d by "wrongful use of force" and extortion "under color of official right."14 The latter is at issue in this case.

Specifically, Antico argues that the District Court should have charged the jury to determine whether he induc ed his extortion victims into giving him gifts and favors with a promise or threat of an official act in return or, at a minimum, that a quid pro quo was reached between th em. This Court exercises plenary review over the allege d failure of the District Court to charge the jury properly o n a matter of law. United States v. Bradley, 173 F.3d 225, 230 (3d Cir. 1999).

1. Inducement

With respect to Antico's claim that an inducement instruction should have been charged to the jury as per subsection (b)(2) of the Hobbs Act, the Supreme Cou rt in Evans v. United States, 504 U.S. 255 (1992), clearl y rejected inducement as an element of the offense of extortion "under color of official right." Id. at 2 56. The Supreme Court affirmed the ruling of the Court of A ppeals for the Eleventh Circuit, which held that

the requirement of inducement is automatical ly satisfied by the power connected with the pu blic office. Therefore, once the defendant has shown that a public official has accepted money in return for a requested exercise of official power, no additional in ducement
need be shown. The coercive nature of the of ficial office provides all the inducement necessary.

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14. See United States v. Jannotti, 673 F.2d 578 (3d Cir. 1982) (ruling Hobbs Act covers actions by public officials under color of official right even when the payment is not obtained by force, thr eats nor use of force); United States v. Margiotta, 688 F.2d 108, 1 30-31 (2d Cir. 1982) ("The public officer's misuse of his office supplie s the necessary element of coercion, and the wrongful use of official power need not be accompanied by actual or threatened force, violence or fear.").

15United States v. Evans, 910 F.2d 790, 796-97 (11th Cir.

1990). Relying on the common law of extortion, the Supreme Court agreed and held that "the word`induce d' is a part of the definition of the offense by the priv ate individual, but not the offense by the public offic ial. . . . The statute merely requires of the public official that he obtain `property from another, with his consent, . . . under color of official right.' " Evans, 504 U.S. at 265. Thus,
Antico's claim that an inducement instruction shoul d have been given fails.

2. Quid Pro Quo

Antico also asserts that the District Court should have charged the jury to find a specific quid pro quo . He cites to a trilogy of Supreme Court cases -- McCormick v. Un ited States, 500 U.S. 257 (1991), Evans v. United States , 504 U.S. 255, and United States v. Sun Diamond Growers of Cal., 526 U.S. 398 (1999) -- in support of his argu ment.

Antico begins by citing to the cornerstone Supreme Court case on Hobbs Act extortion--McCormick, which held that an explicit quid pro quo is necessary for convictio n under the Hobbs Act when a public official receives a cam paign contribution. In McCormick, the Supreme Court ruled that the District Court erred by instructing the jury th at such a quid pro quo was not necessary. McCormick 500 U.S. at 274.15

The logic the Supreme Court employed in McCormick follows the fine line between what is legal campaig n activity
and the "forbidden zone of conduct."

[T]o hold that legislators commit the federa l crime of extortion when they act for the benefit of c onstituents or support legislation furthering the intere sts of some of their constituents, shortly before or aft er campaign
contributions are solicited and received fro m those

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15. The District Court's instructions in McCormick did not omit passively a quid pro quo element, as the District Court did i n the case before us. Instead, the District Court affirmatively stated th at "it is not necessary that the government prove that the defendant commit ted or promised to commit a quid pro quo, that is, consideration in th e nature of an official action in return for the payment of the money not l awfully owed." Id. at 261 n.4 (emphasis added).

16beneficiaries, is an unrealistic assessment of what

Congress could have meant by making it a cri me to obtain property from another, with his conse nt,"under color of official right." To hold otherwise would open to prosecution not only conduct that has long b een thought to be well within the law but also c onduct that in a very real sense is unavoidable so long as election campaigns are financed by private contributi ons or expenditures, as they have been from the beg inning of the Nation. It would require statutory langu age more explicit than the Hobbs Act contains to just ify a contrary conclusion.

Id. at 272-73.

Because the line is so subtle, the Supreme Court ru led in McCormick that an overt quid pro quo is a necessary proof in the context of campaign contributions.

The receipt of such contributions is also vu lnerable under the Act as having been taken under col or of official right, but only if the payments are made in return for an explicit promise or undertakin g by the official to perform or not to perform an off icial act. In
such situations the official asserts that hi s official conduct will be controlled by the terms of t he promise or undertaking. This is the receipt of money by an elected official under color of official rig ht within the meaning of the Hobbs Act.

Id. at 273.

Antico appears to favor extending the McCormick ex plicit quid pro quo ruling to non-elected public employees outside the context of campaign contributions because the s tate of mind necessary to convict in the two contexts is th e same. However, the Supreme Court noted that its holding w as limited to campaign contributions.

McCormick does not challenge any rulings of the courts below with respect to the application of the Hobbs Act to payments made to nonelected off icials or to payments made to elected officials that a re properly determined not to be campaign contributions. Hence,
we do not consider how the "under color of o fficial

17right" phrase is to be interpreted and appli ed in those

contexts.

Id. at 268-69. In light of this express limitation, we decline Antico's invitation to extend McCormick to apply to his situation. The quid pro quo can be implicit, that i s, a conviction can occur if the Government shows that A ntico accepted payments or other consideration with the i mplied understanding that he would perform or not perform an act in his official capacity "under color of official r ight."

In Evans, decided one year after McCormick, the Sup reme Court ruled that a jury instruction containing an i mplicit, as opposed to an explicit, quid pro quo requirement in the context of campaign contributions passed muster und er McCormick. The Supreme Court stated:

We reject petitioner's criticism of the inst ruction, and conclude that it satisfies the quid pro quo requirement of McCormick v. United States, because the o ffense is completed at the time when the public offici al receives a payment in return for his agreement to per form specific official acts; fulfillment of the q uid pro quo is

not an element of the offense. . . . We hold today that the Government need only show that a public official has obtained a payment to which he was not e ntitled, knowing that the payment was made in return for
official acts.

Evans, 504 U.S. at 268. In other words, no"official act" (i.e., no "quo") need be proved to convict under th e Hobbs Act. Nonetheless, the official must know that the p ayment -- the "quid"-- was made in return for official act s.

Outside the campaign contribution context, where Antico's case falls, the line between legal and ill egal acceptance of money is not so nuanced. The Hobbs Ac t simply states that use of one's office to obtain mo ney or services not due is extortion: "the Government need only show that a public official has obtained a payment to which he was not entitled, knowing that the payment was m ade in
return for official acts." Id. Antico would read in to the phrase "knowing the payment was made in return for official acts" a requirement that the jury be instr ucted using the express words "quid pro quo."

18We echo the Supreme Court's satisfaction with an

implicit quid pro quo requirement. In United States v. Bradley, 173 F.3d 225 (3d Cir. 1999), we considered the question of whether, in a non-campaign contribution Hobbs Act extortion case, an express agreement must be sh own. Relying on Justice Kennedy's concurrence in Evans, we agreed that " `the official and the payor need not state the quid pro quo in express terms, for otherwise the la w's effect could be frustrated by knowing winks and nods.' " B radley, 173 F.3d at 231 (citing Evans, 504 U.S. at 274).

In addition, we rejected Antico's argument when we affirmed, in part, the District Court's holding in United States v. McDade, 28 F.3d 283 (3d Cir. 1994), affir ming in part and dismissing on other grounds, 827 F. Supp. 1153 (E.D. Pa. 1993). Analyzing both the McCormick and Evans cases, the District Court in McDade concluded that "[g]iven the language of the Supreme Court's opinion, I find that McCormick does not require a quid pro quo for exto rtion outside the context of campaign contributions." 827 F. Supp. at 1171; accord United States v. Davis, 967 F.2d 516 (11th Cir. 1992). "[S]ince I can find no language i n the Opinion of the Court in Evans which explicitly exte nds the quid pro quo requirement, and since the facts of Ev ans did not require the Court to extend McCormick, I respec tfully do not interpret the Court's opinion so broadly as did those concurring and dissenting Justices [in Evans ]." Mc Dade, 827 F. Supp. at 1171 n.8. We reiterate our agreemen t with

McDade.

The relevant inquiry is whether the District Court' s instruction satisfied the implicit quid pro quo re quirement where non-campaign contribution Hobbs Act "color of official right" extortion is charged. A closer look at Evans' language on quid pro quo, as well as Bradley and Mc Dade and the District Court's decision, all of which dea lt with "color of official right" Hobbs Act extortion outsi de the campaign contribution context, lead to the conclusi on that the District Court did not err in its jury charge. The proper instruction, as per the Evans Court, is"that the Government need only show that a public official ha s obtained a payment to which he was not entitled, kn owing that the payment was made in return for official ac ts." 504

19U.S. at 268. The jury instruction we affirmed in Br adley

reads as follows:

So if a public official agrees explicitly or implicitly to take or withhold some action for the purpose of obtaining money for someone else, that const itutes extortion. The public official need not fulf ill the promise of the payor to do or not to do an official act, although the official's failure to influence may be c onsidered along with all of his conduct in determining whether or not he possessed the intent to commit the cr ime. The crime is completed at the time when the publ ic official knowingly accepts the benefit in return for his agreement to perform or not to perform an ac t related to his office. Moreover, the government does not have to prove that there was an express promise on t he part of the public official to perform a particular act at the time of the payment.

In sum then, it is sufficient if the public official understands that he is expected, as a result of the payment, to exercise particular kinds of inf luence or to do certain things connected with his office as specific opportunities arise.

Bradley, 173 F.3d at 231 (emphasis added).

The District Court's charge to the jury in Antico's case, after specifically reading the relevant portions of the Hobbs Act, was as follows:

Extortion under color of official right is t he use of one's position as a public official or the authori ty of public office to obtain money or services not due t he official or his public office. Such extortion violates t he Hobbs Act.

. . .

If you decide that the defendant was given m oney or goods or services not due the office he repr esents, you
must then decide whether the defendant used the authority of his office or position to obtai n the money, goods or services. The third element is wron gful obtained consent of the giver. The Governmen t must prove beyond a reasonable doubt that these i tems were

20given to the defendant in connection with hi s power and

authority as a public official.

The giver may have initiated the exchange an d the parties may be on friendly terms. These are factors to be considered in deciding whether the giver gave the payments, goods or services because he belie ved the
defendant would use his office for acts not properly related to his official duty or whether inst ead the giver was making a voluntary contribution.

Unless you decide beyond a reasonable doubt that the defendant knew the giver's consent was wrong fully obtained, that is, that the money, goods or services were given in connection with the defendant's mis use of his official position rather than being given vo luntarily, you
cannot convict the defendant.

(Emphases added).

No specific instruction to find an express quid pro quo was given. Nor did the District Court specifically negate such a requirement as the trial court did in McCorm ick. As the District Court noted, "I didn't not grant the Government's points, by the way, . . . which asked me to charge that no quid pro quo was required and no inducement was required. I just didn't charge it." Antico argues that a jury instruction failing to mention q uid pro quo falls short of the mark.

We disagree with Antico's interpretation of the Sup reme Court's intent. Considering the District Court's in structions as a whole, and the highlighted phrases in particul ar, which require a finding of Antico's knowledge of a "connection" between the payment and the misuse of his office, we find that they sufficiently convey the i mplicit quid pro quo approved in Evans and Bradley. As a result, the District Court did not err in its charge to the jur y. If Antico knew that payments or other consideration were exte nded
to him to secure unwarranted favorable treatment in his official capacity, he is guilty of Hobbs Act extort ion under color of official right without the need to prove t hat the official action (or inaction) occurred.

Lastly, Antico cites to the recent case of United S tates v. Sun Diamond Growers of Cal., 526 U.S. 398 (1999), a s an

21affirmation that the Supreme Court has retreated fr om its

holding in Evans and returned to the position in Mc Cormick that an express quid pro quo must be found. Notably
, however, the Sun Diamond case was brought under the federal gratuity statute, 18 U.S.C. S 201(b)(2), no t the Hobbs Act. The crime of illegal gratuity "requires a showing that something of value was given, offered, or prom ised to a public official (as to the giver), or demanded, s ought, received, accepted, or agreed to be received or acc epted by a public official (as to the recipient), for or bec ause of any official act performed or to be performed by such p ublic official." Id. at 404. The Supreme Court reasoned t hat "[t]he insistence upon an `official act,' carefully define d, seems pregnant with the requirement that some particular official act be identified and proved." Id. at 406.

As a result, the Court held in Sun Diamond that, "i n order to establish a violation of 18 U.S.C. S 201(c )(1)(A), the Government must prove a link between a thing of val ue conferred upon a public official and a specific`off icial act' for or because of which it was given." Id. at 414. Again, noting the subtle distinction between what is legal campaign activity and the "forbidden zone of conduc t," the Supreme Court recognized the peculiar results if it were to convict without a finding of any connection between the public official's intent and a specific official ac t. "It would criminalize, for example, token gifts to the Presid ent based on his official position and not linked to any iden tifiable act -- such as the replica jerseys given by championshi p sports teams each year during ceremonial White House visit s." Id. at 406-07. Thus, in the context of campaign contrib utions under the illegal gratuity statute, Sun Diamond re quires proof of a specific "quo," which Antico argues nece ssitates an express quid pro quo jury instruction.

In contrast to the illegal gratuity statute, the Ho bbs Act, as interpreted by both the Supreme Court and our Co urt, contains no express quid pro quo requirement in the noncampaign contribution context. The concerns over il legal campaign contributions addressed by the gratuity st atute and the Hobbs Act -- solved by an express quid pro quo requirement in those cases -- do not automatically carry over to the line of cases dealing with Hobbs Act ex tortion as

22it pertains to non-elected officials. Accordingly, we do not

read Sun Diamond to require a heightened quid pro q uo jury instruction, distinct from that outlined in Evans, in this case. Because the District Court's jury instruction comports with that in Evans and Bradley, we reject Antico's allegation of error in this respect.

B. Intangible Rights of Honest Services

1. Sufficiency of the Government's Proof

The jury found that the Government had proven all o f the mail and wire fraud racketeering acts under the RIC O count and found Antico guilty of all of the substan tive counts of mail and wire fraud. On appeal, Antico ch allenges the sufficiency of the evidence with respect to the fraudulent schemes. Again, sufficiency of the evide nce is reviewed in a light most favorable to the Governmen t following a jury verdict in its favor. Glasser v. U nited States, 315 U.S. 60, 80 (1942). "We must sustain the verdic t if there is substantial evidence, viewed in the light most favorable to the government, to uphold the jury's d ecision. . . . We do not weigh evidence or determine the cre dibility of witnesses in making this determination." United States v. Beckett, 208 F.3d 140, 151 (3d Cir. 2000) (citation s omitted). The scope of review is over the totality of the evidence, both direct and circumstantial. United St ates v. Czubinski, 106 F.3d 1069, 1073 (1st Cir. 1997).

In relevant part, the mail and wire fraud statutes provide:

Whoever, having devised or intending to devi se any scheme or artifice to defraud, or for obtain ing money or property by means of false or fraudulent pre tenses, representations, or promises . . . [uses the mails or wires, or causes their use] for the purpose of executing
such scheme or artifice . . . shall be fined under this title or imprisoned not more than five years , or both.

18 U.S.C. SS 1341 & 1343. To prove mail or wire fra ud, the evidence must establish beyond a reasonable doubt ( 1) the defendant's knowing and willful participation in a scheme or artifice to defraud, (2) with the specific inten t to defraud, and (3) the use of the mails or interstate wire
communications in furtherance of the scheme. United

23States v. Clapps, 732 F.2d 1148, 1152 (3d Cir. 1984 ).

Identical standards apply to the "scheme to defraud " under
both the mail and the wire fraud statutes. United S tates v. Boots, 80 F.3d 580, 586 n.11 (1st Cir. 1996).

Courts have interpreted the term " `scheme or artif ice to defraud' [to] include a scheme or artifice to depri ve another of the intangible right of honest services," United States v. Woodward, 149 F.3d 46 (1st Cir. 1998) (citing Unite d States v. Sawyer, 85 F.3d 713, 723-24 (1st Cir. 1996)), gi ving rise to the "intangible rights doctrine."16 This doctrin e reaches public and private fraud at the state and local lev els, including prosecutions of public officials or emplo yees who have failed to provide honest services to the citiz enry they

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16. The intangible rights doctrine gradually develo ped as courts of appeals interpreted the mail fraud statute since it s origin in the late 1800s. In 1987, the Supreme Court overturned decade s of mail and wire fraud jurisprudence in McNally v. United States , 4 83 U.S. 350 (1987),
when it held that the mail and wire fraud statutes do not prohibit schemes to defraud individuals of their intangible right to honest government services. In response, Congress enacted the honest services amendment the next year. It provides: "For the purp oses of this chapter,
the term `scheme or artifice to defraud' includes a scheme or artifice to deprive another of the intangible right of honest s ervices." 18 U.S.C. S 1346 (effective Nov. 11, 1988). Section 1346 was enacted without much comment and little legislative history. However, co mmentary and judicial
reflection indicate that the statute was enacted to overturn McNally and
restore the evolution of mail and wire fraud to its pre-McNally status. See 134 Cong. Rec. H11,251 (daily ed. Oct 21, 1988) (statement of Rep. Conyers) ("This amendment restores the mail fraud p rovision to where that provision was before the McNally decision."); Id. at S17,376 (daily ed. Nov. 10, 1988) (statement of Sen. Biden) ("This section overturns the decision in McNally v. United States. . . . Under t he amendment, those statutes will protect any person's intangible right to the honest services of another, including the right of the public to th e honest services of public officials."); Cleveland v. United States, 53 1 U.S. 12, 20 (2000) (noting "Congress amended the law specifically to c over one of the `intangible rights' that lower courts had protected under S 1341 prior to McNally: `the intangible right of honest services' "); United States v. DeVegter, 198 F.3d 1324, 1327 (11th Cir. 1999) (not ing that " `Congress passed [S 1346] to overrule McNally and reinstate prior law' ") (alteration in original); United States v. Grandmaison, 77 F.3d 555, 556 (1st Cir. 1996) (same, citing cases).

24serve.17 Although our interpretation of the scope o f the mail

and wire fraud statutes is not boundless, we have
construed a "scheme or artifice to defraud" to enco mpass intangible rights. Clapps, 732 F.2d at 1149-53 (aff irming the conviction of a county political party chairman who defrauded nursing home residents of their absentee ballots and marked them in favor of the party's candidate); United States v. Frankel, 721 F.2d 917, 920-21 (3d Cir. 19 83) ("Schemes to defraud come within the scope of the s tatute even absent a false representation."); United State s v. Boffa, 688 F.2d 919, 931 (3d Cir. 1982) (concluding that a scheme to defraud employees "of the loyal, faithful, and h onest services of their union official alleges a crime wi thin the scope of the mail fraud statute"). Given Congress' clear intent in enacting S 1346, we join with those court s that recognize that the scope of the amendment includes the prosecution of state and local officials and public employees for depriving the citizens they serve of their righ t to honest
services.18

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17. See, e.g., Woodward, 139 F.3d 46 (affirming the conviction for mail
and wire fraud on the "theft of honest services" th eory where legislator, serving on the Joint Committee on Insurance, accept ed illegal gratuities from insurance industry lobbyist); United States v. Silvano, 812 F.2d 754 (1st Cir. 1987) (applying the mail fraud statute to local political corruption and affirming the conviction of a Boston city official who secretly arranged for a friend to receive commissio ns from the city's choice of health insurance provider); United States v. Margiotta, 688 F.2d 108, 112-13 (2d Cir. 1982) (affirming the convictio n of the chairman of a local Republican committee who fraudulently arran ged for his
associates to receive insurance contracts with loca l governments); see also Daniel W. Hurson, Mail Fraud, The Intangible R ights Doctrine, and the Infusion of State Law: A Bermuda Triangle of So rts, 38 Hous. L. Rev. 297, 305 & n.34 (2001) (citing cases). 18. Antico argues that extension of the mail fraud statute to local political corruption runs counter to the heightened federalism concerns recently raised by the Supreme Court. See Cleveland , 531 U.S. at 25 ("As we reiterated last Term, `unless Congress conveys i ts purpose clearly, it will not be deemed to have significantly changed th e federal-state balance' in the prosecution of crimes."). However, Antico's argument is misplaced. While the Supreme Court recently voiced federalism concerns over the reach of mail fraud prosecutions in genera l in Cleveland, it acknowledged that Congress indeed spoke clearly whe n it restored the "intangible right of honest services" within the sc ope of S 1346. Id. at

20. Moreover, we need not reconcile the principles of f ederalism with S 1346 in this case because Antico owed a duty to the citi zens of Philadelphia under state and local law. See Margiotta, 688 F.2d at 124.

25The Government's prosecutorial theory on this point is

that Antico, by failing to disclose his personal in terest in a matter over which he had discretionary decision-mak ing authority, deprived the public of its right to disi nterested decision-making and of its right to full disclosure of his potential motivation. The scheme to defraud involve d Antico's setting Ricciardi up as an expediter, then preparing and approving her permits. Ricciardi received a fee for her "services" which, in turn, substituted for Antico's obligation to pay child support. The Government contends that the requisite intent to defraud was met, in light of th is scheme, by Antico's failure to disclose the nature of his p ersonal
interest in Ricciardi's business and to recuse hims elf from reviewing approvals submitted by her. Finally, the Government contends, and Antico does not dispute on appeal, that interstate phone calls and mailings we re made
in furtherance of the scheme.

Antico argues that while "discharge of debt" of a f amily member may pose a conflict of interest, his "nepoti stic gifting" to his girlfriend does not rise to an acti onable deprivation of his honest services under the mail o r wire
fraud statutes. He denies that he had a financial i nterest in Ricciardi's business at the time alleged in the ind ictment because his debt, if any, had mathematically been discharged at the time of the indictment. With resp ect to his intent to defraud, Antico argues that he never actively concealed from his colleagues at L&I either that he had children with Ricciardi or that he set her up in th e expediting business. Thus a requisite element of fr aud is missing. We address each of these contentions in tu rn.

Honest services fraud typically occurs in two scena rios: (1) bribery, where a legislator was paid for a part icular decision or action; or (2) failure to disclose a co nflict of interest resulting in personal gain. Woodward , 149 F.3d at 54-55. This duty to disclose a conflict of interest arises in the private sector from the fiduciary relationship between an employer and an employee. In the public sector, the duty is oftentimes prescribed by state and local et hics laws. In the latter context,

[a] public official has an affirmative duty to disclose material information to the public employer. See

26Silvano, 812 F.2d at 759. When an official f ails to

disclose a personal interest in a matter ove r which she has decision-making power, the public is dep rived of its right either to disinterested decision m aking itself or, as the case may be, to full disclosure a s to the official's potential motivation behind an of ficial act. See id. (upholding conviction of city fiduciary who failed to
disclose material information about unnecess ary spending of city money for secret enrichment of fiduciary's friend). Thus, undisclosed, bias ed decision making for personal gain, whether or not tan gible loss to the public is shown, constitutes a depriv ation of
honest services.

Sawyer, 85 F.3d at 724.

We agree with the Government that Antico's duty to disclose material information with respect to his c onflict of
interest with Ricciardi arose from state and local law. Antico disagrees, arguing that the state and local conflict of interest laws that governed his conduct while at L& I contained a loophole for "girlfriends." 65 Pa. C.S. A. S 402 (". . . for the private pecuniary benefit of himsel f, a member of his immediate family or a business with which he or a member of his immediate family is associated"); Phi ladelphia Code S 20-607 ("nor shall any financial interest be held by a parent, spouse, child, brother, sister or like re lative-inlaw, or by any person, firm, partnership, corporati on, business association, trustee or straw party for hi s or her benefit") (emphases added). We read the emphasized portions of these statutes to include Antico's sche me with Ricciardi. The expediting scheme with Ricciardi, wh ile certainly benefitting her (and at least indirectly the two children she had with Antico), also provided a tang ible benefit to Antico: it fulfilled his ongoing child s upport obligation and served as consideration in exchange for Ricciardi's forgoing court proceedings against him. 19

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19. Antico's mathematical contention that his child support obligation disappeared after Ricciardi had earned roughly $32, 000 (based on the court-ordered payment in the 1980s) ignores the ong oing and dynamic nature of his obligation, as well as the fact that he also purchased Ricciardi's agreement not to pursue court sanctions against him as long

27Therefore, Antico owed the City a duty to disclose this

financial arrangement, the failure of which constit utes
honest services fraud.

Antico correctly notes that "the broad scope of the mail fraud statute . . . does not encompass every instan ce of
official misconduct that results in the official's personal gain." Czubinski, 106 F.3d at 1076 (citing Sawyer, 85 F.3d at 725) (reversing conviction of IRS employee on ma il fraud charges for unauthorized browsing of taxpayer files absent a showing of impartial performance of public servan t's duties); United States v. Holzer, 816 F.2d 304, 309 (7th Cir. 1987) ("We do agree that the words `scheme or artif ice to defraud' don't reach everything that might strike a court as unethical conduct or sharp dealing"). However, even if we were to read these conflict of interest provisions as restrictively as Antico suggests, we find that his conduct violated the fiduciary relationship between a publi c servant charged with disinterested decision-making and the public he serves. Id. at 307 ("Fraud in its elementary com mon law sense of deceit -- and this is one of the meanings that fraud bears in the [mail fraud] statute . . .-- inc ludes the
deliberate concealment of material information in a setting of fiduciary obligation. A public official is a fid uciary toward the public . . . ." ). Duties to disclose material information affecting an official's impartial decision-making a nd to recuse himself exist within this fiduciary relation ship regardless of a state or local law codifying a conf lict of interest. Id. at 309; Silvano, 812 F.2d at 759-60. Antico's exercise of his discretionary authority in both fil ling out and approving the applications submitted by Ricciar di without disclosing his interest in the scheme goes beyond
the mere ministerial function excused in Czubinski and into the realm of interested decision-making. When coupl ed with the duty imposed by state and local conflict of int erest

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as she cared for his children. Moreover, as we stat e later in this discussion, even if we were to disregard the child support arrangement, Antico's conduct in filling out the applications an d then personally approving them for the financial benefit of Ricciar di deprives the public of the disinterested decision-making of one of its public servants, a breach of Antico's fiduciary duty to the citizens o f Philadelphia.

28laws, Antico's failures to disclose his financial b usiness

arrangement with Ricciardi and to recuse himself fr om taking action with respect to her applications fall within the scope of honest services fraud.

Antico also contends that "absent deceit, concealme nt, demonstrable public harm or other active fraud," hi s conviction for wire fraud cannot stand. We disagree . In the context of honest services fraud, where "undisclose d, biased decisionmaking for personal gain, whether or not ta ngible loss to the public is shown, constitutes a deprivat ion of honest services," Sawyer, 85 F.3d at 724, an active fraud or deceit is not necessary.

[T]he courts that have accepted the notion t hat a deprivation of intangible rights is within t he statute[ ] recognize that an active misrepresentation i s not necessary. Instead, the prosecution need pro ve only a recognizable scheme formed with intent to de fraud regardless of how that intent manifests itse lf in execution. For example, a public official en gaged in bribery by mail need not actively make any misrepresentations in order to violate secti on 1341.

Frankel, 721 F.2d at 920-21. "The legal meaning of `fraud' is not limited to deceit or misrepresentation; it i ncludes overreaching, undue influence, and other forms of misconduct." Holzer, 816 F.2d at 309. Nor is a show ing of public harm required. Sawyer, 85 F.3d at 724 (". .

. whether or not tangible loss to the public is shown "); Holzer, 816 F.2d at 308 ("It is irrelevant that . . . [Holzer's]
conduct caused no demonstrable loss either to a lit igant or to the public at large."); Silvano, 812 F.2d at 760 ("It is immaterial whether [the defendant] personally profi ted from the scheme or whether the City suffered a financial loss from it.") (citing United States v. Lemm, 680 F.2d 1193, 1205 (8th Cir. 1982)); United States v. Mandel , 59 1 F.2d 1347, 1358 (4th Cir. 1979) (approving the prosecuti on of allegedly corrupt politicians who did not deprive t he citizens of anything of economic value); United States v. Ke ane, 522 F.2d 534 (7th Cir. 1975) (same).

In this case, Antico's failure to disclose his fina ncial interest in the success of Ricciardi's expediting b usiness

29and his failure to recuse himself from approving th e permit

applications he filled out constitute "deceit" for purposes of the mail fraud statute. "[A]n official's intentiona l violation of the duty to disclose provides the requisite `deceit '." Sawyer, 85 F.3d at 732 (citing Silvano, 812 F.2d at 760). T he fact that Antico did not conceal his relationship with R icciardi
from his co-workers does not vindicate his failure to disclose to his supervisors the conflict arising fr om their financial arrangement nor his failure to recuse him self from acting on the permit applications she submitted.

It also does not preclude a jury from finding Antic o possessed the requisite intent to defraud the citiz ens of Philadelphia. Woodward, 149 F.3d at 62 ("Woodward's intent is . . . demonstrated by his failure to disc lose his conflict of interest although he was required to do so."). The fact that Antico never reported any conflict of int erest to his superiors while at L&I, despite his knowledge of th e state and local conflict of interest laws, supports the j ury's finding of intent to deceive necessary for a wire f raud conviction. In fact, Antico continued the fraudulen t scheme even after L&I Commissioner Levin specifically inst ructed him in 1993 to have no involvement in approving Ric ciardi's permit applications. Despite Levin's instructions, Antico urged Ricciardi to submit permits on behalf of the Philadelphia Sign Company, which he approved. Antic o also prepared the permit application for Wizzards at thi s time on Ricciardi's behalf and prepared the appeal before t he ZBA, signing Ricciardi's name. Finally, Antico told the owner of the Beach Club to use Ricciardi as his expediter, affirmatively promoting this scheme despite the war ning of
the conflict of interest.

In sum, when we view this evidence in the light mos t favorable to the Government, we find that it has me t its burden of proof. There was clearly sufficient legal support and factual evidence, both direct and circumstantia l, on which a reasonable jury could rely to reach its ver dicts.

2. Materiality Instruction

According to Antico, the District Court erred by om itting "materiality" from its jury instruction on the mail fraud racketeering acts. He relies on the Supreme Court's

30declaration in Neder v. United States, 527 U.S. 1 ( 1999),

that "materiality of falsehood is an element of the federal mail fraud, wire fraud, and bank fraud statutes." I d. at 25. This Court considers the totality of the jury instr uctions to determine "whether, viewed in light of the evidence , the charge as a whole fairly and adequately submits the issues in the case to the jury." United States v. Thayer, 201 F.3d 214, 221 (3d Cir. 1999). Because Antico did not obj ect to the District Court's treatment of materiality, we o nly review it for plain error. Johnson v. United States, 520 U .S. 461, 465-67 (1997). Under Rule 52(b) of the Federal Rule s of Criminal Procedure, "[p]lain errors or defects affe cting substantial rights may be noticed although they wer e not brought to the attention of the court." Fed. R. Cri m P. 52(b). The Supreme Court in United States v. Olano, 507 U.S. 725 (1993), articulated the limitations on app ellate review under Rule 52(b): "The first limitation on a ppellate authority under Rule 52(b) is that there indeed be an `error.' " Id. at 732. The second is that the error be "plain"
and the third is that the error "affect substantial rights." Id. at 734. Even if these requirements are met, the cou rt
should not exercise its discretion unless the error "seriously affect[s] the fairness, integrity or public reputat ion of judicial proceedings." Id. at 736.

In light of the Supreme Court's holding in Neder , Antico argues that he is entitled to a new trial because, after the District Court instructed the jury on materiality w ith respect to the wire fraud counts and racketeering a cts (Counts Eleven through Eighteen), it did not re-ins truct the jury on materiality with respect to the mail fraud racketeering acts (Racketeering Acts 14A-D). In add ition,
Antico submits that the District Court should have specifically instructed the jury that materiality m ust be proven beyond a reasonable doubt. The question is w hether this failure to re-instruct the jury on materiality when giving the mail fraud instruction constitutes plain error.

The District Court's instructions were carefully cr afted and lengthy, spanning over 100 pages. With respect to the wire fraud counts, the Court began by defining a sc heme to defraud in the context of wire fraud. It explained that the Government must prove beyond a reasonable doubt tha t

31there was a "scheme or artifice to defraud," and de fined a

scheme to defraud as "any plan, device or course of action to obtain money or property or the intangible right of honest services by means of false or fraudulent pre tenses, representations or promises reasonably calculated t o deceive persons of average prudence." In describing "false and fraudulent representations," the District Court stated: "The false or fraudulent representation or failure to disclose[ ] must relate to a material fact or matte r. A material fact is one which would reasonably be expe cted to be of concern to a reasonable and prudent person in relying upon the representation or statement in making a decision." Clearly the wire fraud instruction was a dequate.20 However, when discussing the racketeering acts of m ail fraud under the RICO count, the Court did not instr uct on false representations and materiality.

Preliminarily, we find Antico's case to be unlike U nited States v. Gaudin, 515 U.S. 506 (1995), where the Co urt entirely failed to present the issue of materiality to the jury. In this case, both the wire fraud and the mail frau d
offenses derived from the same scheme between Antic o and
Ricciardi. The material information that was not di sclosed by Antico was the same in both counts. Therefore, a reasonable jury, instructed to consider materiality with respect to this scheme, would logically do so in th e context
of both wire fraud and mail fraud. See United State s v. Winstead, 74 F.3d 1313, 1319 (D.C. Cir. 1996) (conc luding that where only one fraudulent scheme was at issue with respect to both mail fraud and false statement char ges, the court's instruction to the jury that materiality wa s an element of the mail fraud charge ensured that the j ury would have found this element existed with respect to the

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20. Antico takes issue with the wire fraud jury cha rge to say that "materiality" should have been instructed"beyond a reasonable doubt" in
the same sentence. Because the District Court defin ed materiality as an element of the scheme to defraud, and explained tha t the scheme needed to be proven beyond a reasonable doubt, we conclude that the jury charge was sufficient in this respect. He also ques tions whether materiality should be subject to a "reasonable pers on" test in the
circumstances. Neder instructs us that the reasonab le person test is not

error. 527 U.S. at 22.

32false statement charge had the jury been properly

instructed).

The District Court's instructions clearly informed the jury that, by definition, "a false or fraudulent represe ntation or failure to disclose[ ] must relate to a material fa ct or matter." By convicting Antico of wire fraud, the ju ry found that Antico's failure to disclose was material, and "it is beyond doubt that the members of the jury would hav e reached the same conclusion had they explicitly con sidered materiality as part of their deliberations" on the mail fraud racketeering acts stemming from the same conduct. Winstead, 74 F.3d at 1321. Therefore, the District Court's jury instructions on materiality were not erroneous

.

C. Scheme to Defraud Philadelphia of Property -- McCausland's Zoning Permits

In light of the Supreme Court's decision in Clevela nd v. United States, 531 U.S. 12 (2000), the Government a grees that Counts Seventeen and Eighteen should be remand ed to the District Court for entry of judgments of acq uittal. In Cleveland, the Court reversed a mail fraud convicti on of a defendant who obtained a video poker license from t he state by making false representations on his licens e application. The Court held that an unissued video poker license was not property within the meaning of the mail

fraud statute. Id. at 15.

Counts Seventeen and Eighteen charged that

while Antico was working as a private expedi ter following his retirement from L&I, he obtain ed a zoning and/or use registration permit for Ma ureen McCausland's putative prostitution business. He obtained that permit by falsely stating on t he permit application that McCausland was going to ope rate a "modeling studio/physical fitness business" in Philadelphia.

The prosecution of Antico on these two counts was premised on a zoning permit being property within t he meaning of S 1343. Appellee's Supp. Br. at 2. Becau se the Supreme Court's ruling negates the Government's pre mise,
we reverse Antico's conviction on these counts.

33D. Sentencing Challenges

Antico alleges that the District Court erred by (1) enhancing his offense level by four levels because it determined he was an organizer or leader of crimina l activity that involved five or more participants or was otherwise extensive, and (2) inflating the loss att ributable to the Ricciardi scheme to defraud to over $700,000, t he amount earned by Ricciardi in her expediting busine ss. We
review for clear error a District Court's factual determinations underlying the application of the Se ntencing Guidelines. United States v. Helbling, 209 F.3d 226 , 242-43 (3d Cir. 2000) (citing United States v. Ortiz , 878 F.2d 125, 126-27 (3d Cir. 1989)). Our review of the District Court's legal interpretation of the Sentencing Guidelines i s plenary. United States v. Yeaman, 194 F.3d 442, 456 (3d Cir. 1999). Once these tests are satisfied, we owe deference to the District Court's application of the Sentencing Guid elines to those facts, as required by 18 U.S.C. S 3742(e). He lbling,

209 F.3d at 243.

The District Court grouped Antico's convictions for purpose of sentencing, placing the extortion activi ty in one group, U.S. Sentencing Guidelines Manual S 2(c)(1.1 ) (1999), and the mail and wire fraud activity in a s econd group, U.S. Sentencing Guidelines Manual S 2(c)(1.7 ). It then calculated the offense levels for each group. The extortion group led to an offense level of twenty-f our and a sentence of sixty-three months, while the fraud gro up led to an offense level of twenty and a sentence of sixty months (to run concurrently). The District Court used the adjusted offense level of the highest group, extortion, to d etermine the sentencing range. Therefore, the ultimate sente nce imposed by the District Court, sixty-three months, was not based on the amount of loss caused by the fraud act ivities. Antico's objection to his leading role adjustment p ertains to the first group of extortion activities whereas his objection to the loss calculation pertains to the second grou p of fraud
activities. The Government contends that the Distri ct Court's use of the extortion group to determine Ant ico's ultimate sentence renders Antico's objection to the loss
calculation moot.

341. Organizer or Leader of a Criminal Activity of Fi ve or

More Participants or Otherwise Extensive Cri minal Activity

We review for clear error the District Court's fact ual determinations that Antico was an organizer or lead er and that his criminal activity involved five or more pa rticipants. Helbling, 209 F.3d at 242-43.In simple term s, we w ill vacate "only if we are left with a definite and fir m conviction
that a mistake has been made." United States v. Den t, 149 F.3d 180, 189 (3d Cir. 1998). With respect to the e xtortion offenses, the District Court adjusted Antico's base offense level upward four levels for his aggravating role. Under S 3B1.1 of the Sentencing Guidelines, a District Co urt adjusts the offense level based on defendant's role as follows:

S 3B1.1. AGGRAVATING ROLE

Based on the defendant's role in the offense , increase

the offense level as follows:

(a) If the defendant was an organizer or lea der of a criminal activity that involved five or more participants or was otherwise extensive, increase by 4 le vels.

U.S. Sentencing Guidelines Manual S 3B1.1."Particip ant" is defined as one "who is criminally responsible for t he commission of the offense, but need not have been convicted." U.S. Sentencing Guidelines ManualS 3B1. 1, cmt. n.1. Application note 3 adds gloss to what the District Court should consider when determining the defendan t's

role:

In assessing whether an organization is "oth erwise extensive," all persons involved during the course of
the entire offense are to be considered. Thu s, a fraud that involved only three participants but us ed the unknowing services of many outsiders could b e considered extensive.

U.S. Sentencing Guidelines Manual S 3B1.1, cmt. n.3

.

We agree with the District Court's conclusion that Antico was an organizer or leader of criminal activity. Ap plication
note 3 to S 3B1.1 identifies relevant factors in th is
determination:

35Factors the court should consider include th e exercise

of decision making authority, the nature of the participation in the commission of the offen se, the recruitment of accomplices, the claimed righ t to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, an d the degree of control and authority exercised over othe rs.

Id. With respect to Meehan and Antico, Jr., the evi dence supports the conclusion that he played a decision-m aking role in their activities with respect to extorting Wizzards and Pin Ups. Antico also supervised the Business Regulatory Unit at L&I, the unit charged with enfor cing the adult cabaret ordinances. When Wizzards, Pin Ups an d Teazers were shut down, Antico made the decisions a nd issued the orders. The District Court's findings in this regard are not clearly erroneous.

Under the "five or more participants" prong ofS 3B1 .1,
the District Court counted the defendant and the unindicted co-conspirators of Antico, Jr. and Meeha n because of their involvement in the scheme to extor t Wizzards and PinUps of a financial interest in the
businesses. The District Court also counted Maureen
McCausland and Barbara Williams because of their extortion payments to Antico to benefit their prost itution business and expediting business, respectively. The District
Court also considered "at least some of the other v ictims and all of the unknowing persons at the Department of Licenses and Inspections . . . in determining wheth er there were five or more participants." Alternatively, und er the "otherwise extensive" prong of S 3B1.1, the Distric t Court ruled that "there were the functional equivalent of five participants by reason of the use of . . . L and I personnel" (citing to Helbling, 209 F.3d at 248 ("[T]he court must
determine the extent to which the services of each individual, non-participant, were peculiar and nece ssary to the criminal scheme . . . [and] then consider wheth er the sum of the participants and countable non-participa nts is the `functional equivalent' of five participants.") ).21

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21. The District Court apparently imported the"func tional equivalency" test from the "otherwise extensive" prong into the "five or more

36We take issue with the District Court's inclusion o f

Maureen McCausland and Barbara Williams, victims of Antico's extortion schemes, in the mix of five part icipants. Extortion victims, whether they operate legitimate or illegitimate businesses, are still victims. As this case demonstrates, owners of illegitimate businesses suc h as Maureen McCausland may be particularly vulnerable t o an L&I official's abuse of power, but they are no more criminally responsible for the offense of extortion than legitimate business owners. The same holds true for expediters. The fact that their legitimate role in filling out and hastening permit applications to L&I was corrup ted by Antico does not make them criminally responsible fo r being extorted by him. In this respect, the District Cour t's
inclusion of both Maureen McCausland and Barbara Williams within the definition of participant is cl early erroneous. By its definition, only Antico, Meehan, and Antico, Jr. may be counted.

Alternatively, the District Court ruled that Antico 's criminal activity met the "otherwise extensive" pro ng of S 3B1.1, justifying a four level increase. With res pect to what constitutes "otherwise extensive," we caution that "not every individual tangentially involved in the crimi nal activity can fairly be considered in the analysis. The purpose of the provision would rarely be achieved b y counting the unknowing services of some actors in a criminal scenario, a taxicab driver or bank teller, for instance." Helbling, 209 F.3d at 247 (citation omit ted). To guard against such a broad brush, we adopted in Hel bling the three-step test from United States v. Carrozzel la, 105 F.3d 796 (2d. Cir. 1997), to help determine whether the criminal activity is "otherwise extensive."

A sentencing court must first separate out t he "participants" as defined by Application Not e 1 from other individuals, non-participants, who wer e involved

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participants" determination by counting all of the unknowing persons at L&I. We note that the "five or more participants," by definition, must somehow be responsible criminally for the offense. Therefore, the unknowing L&I officials are more appropriately cons idered in the
"otherwise extensive" determination.

37in the criminal activity. . . . The defendan t may be

considered as one of the participants. The c ourt must
next determine whether the defendant used ea ch non- participants' services with specific crimina l intent. Third, the court must determine the extent t o which the services of each individual, non-partici pant, were peculiar and necessary to the criminal schem e.

Helbling, 209 F.3d at 247-48 (citations omitted).

We add to this rule another consideration. The lang uage of S 3B1.1 requires the court to consider the defen dant's leadership role with respect to the particular offe nse charged. Although "all persons involved during the course of the entire offense are to be considered," this d oes not sanction a court taking the activities of non-parti cipants from unrelated schemes and grouping them together t o reach the "functional equivalent" of five persons. The actions or services of non-participants must all re late to the common criminal activity or scheme -- and to the of fense charged. A sentencing court should take particular care in situations where like offenses have been grouped to gether for sentencing purposes, as was done in this case. Counting Maureen McCausland and Barbara Williams among the "functional equivalent" of five participa nts was clearly erroneous for this reason as well.

In light of our ruling that victims may not be cons idered as participants, it is unclear from the record whet her the District Court properly completed the "otherwise ex tensive" analysis. Assuming that Antico, Meehan, and Antico, Jr., were participants, the District Court next needed t o determine whether Antico used each non-participant L&I officials' services with specific criminal intent a nd as part of a single criminal scheme. The District Court did no t make explicit findings in this regard. Citing step three from Helbling, the District Court found that the service s of those
L&I officials mentioned in the Government's submiss ions -- Thomas Simmonds, Gary Adams, Steve Gibbs, Michael Shaughnessy, Dominic Verde, and Gerald Richards-- w ho were used by Antico to shut down Wizzards and Pin U ps, met the "peculiar and necessary" test. However, bas ed on the record before us, we cannot say that the Distri ct Court undertook the proper legal and factual analysis whe n it

38made its "functional equivalency" determination. We

therefore vacate the sentence on the extortion char ges and remand for re-sentencing in accordance with Helblin g and this opinion.

2. Loss Calculation

Antico also challenges the District Court's loss
calculation on the mail and wire fraud offenses. In sentencing Antico on this group of offenses, the Di strict Court employed S 2(c)(1.7)(b)(1)(A) of the Sentenci ng Guidelines, which reads:

(b) Specific Offense Characteristic

(1) (If more than one applies, use the great er):

(A) If the loss to the government, or the va lue of anything obtained or to be obtained by a pub lic official or others acting with a public offi cial, whichever is greater, exceeded $2,000, incre ase by the corresponding number of levels from the table in S 2F1.1 (Fraud and Deceit).

The Commentary to S 2F1.1 defines loss as"the value of the money, property, or services unlawfully taken." U.S

. Sentencing Guidelines Manual S 2F1.1, cmt. n.7. The loss calculation need not be precise; the Sentencing Gui delines require only a "reasonable estimate" based on the information available. Id. at n.8. Generally, a def endant's gain may provide a reasonable approximation of a vi ctim's loss and may be used when more precise means of measuring loss are unavailable in determining the s entence dealing with offenses involving fraud or deceit. Id .; see United States v. Anderson, 45 F.3d 217 (7th Cir. 19 95).

The District Court used the amount of $770,284 to adjust the offense level from ten to twenty in acco rdance with the table in S 2F1.1. The question presented o n appeal is whether the District Court's loss calculation, b ased on the entire gain to another "acting with the public official" in honest services fraud, is clearly erroneous. The vi ctim in this case, the citizenry of Philadelphia, lost some thing intangible: the honest services of one of its publi c officers. How should this loss be valued? Antico objects to calculating the loss from the gross receipts to Ric ciardi in

39her expediting business. Instead, he argues that th e loss

should be at most the estimated $31,200 child suppo rt obligation that was the motivation behind his schem e to defraud, or arguably zero in light of our decisions in United States v. Maurello, 76 F.3d 1304 (3d Cir. 1996), an d United States v. Hayes, 242 F.3d 114 (3d Cir. 2001), that actual loss or actual harm, as opposed to defendant's gain , was the appropriate basis for measuring the loss.

In Maurello, this Court considered "whether money p aid by clients for apparently satisfactory legal servic es performed by an unlicensed attorney is considered p art of the `loss' from the attorney's fraudulent acts for purposes of
S 2F1.1." 76 F.3d at 1308. "To the extent that the unauthorized services provided by defendant have no t harmed their recipients, but to the contrary have b enefitted them, we conclude that defendant's base offense lev el
should not be enhanced." Id. at 1312. While not an exact fit, Maurello seems to reject the notion that what Ricciardi's clients paid her for her services, with which they were satisfied, is the appropriate measure of loss.

Antico also cites to United States v. Hayes, wherei n we approved the Maurello approach to loss calculation. The issue in Hayes was "whether the total salary paid t o Hayes in all of her fraudulently obtained employment shou ld have

been assessed as the amount of loss . . . or whethe r, under the rule of Maurello [citation omitted], the court should have attempted to determine whether any of the serv ices performed by defendant had value." Hayes, 242 F.3d at
115. We held that Maurello controlled and vacated a nd remanded for resentencing "[b]ecause, had the Distr ict Court applied Maurello, it might have fixed a lower offense level resulting in a lesser sentence than the year and a day sentence imposed." Id.

Antico argues that the District Court should have a pplied the Maurello/Hayes logic in this case. Inasmuch as none of Ricciardi's clients were harmed, he insists the los s should be zero and no enhancement be applied. We reject An tico's reliance on Maurello and Hayes, which did not decid e the issue of loss from honest services fraud, in favor of the clear outcome mandated by the Sentencing Guidelines in this case. "If the loss to the government, or the v alue of

40anything obtained or to be obtained by a public off icial or

others acting with a public official, whichever is greater, exceeded $2,000, increase by the corresponding numb er of levels from the table in S 2F1.1 (Fraud and Deceit) ." U. S. Sentencing Guidelines Manual S 2(c)(1.7)(b)(1)(A). The amount Ricciardi received -- by "acting with the pu blic
official" -- is the correct measure of loss under t his section. Therefore, the District Court's calculation of the loss at $770,284 was not clearly erroneous.22

In summary, we vacate the sentence imposed by the
District Court in this case and remand for three re asons. First, the District Court needs to determine whethe r our reversal of conviction on Counts Seventeen and Eigh teen has any effect on its decision to sentence within t he sentencing range on the fraud grouping of offenses. Second,
we vacate and remand for the District Court to cond uct the necessary inquiry with respect to Antico's aggravat ing role in the extortion scheme, as set forth in United Sta tes v. Helbling, 209 F.3d 226 (3d Cir. 2000), and this opi nion. Finally, the District Court must reconsider its dec ision to sentence Antico based on the extortion grouping of offenses after recalculating the sentence for each of the wi re fraud group and the extortion group in accordance with th is opinion.

* * * * *

Accordingly, we affirm Antico's convictions on Coun t One (RICO),23 Counts Two through Ten (extortion), and C ounts

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22. The Government contends that we need not reach the question because the ultimate sentence was based on the high er offense level generated by the extortion grouping, and did not re st on the lesser offense level under the fraud grouping. Thus, even if the District Court calculated the loss as something less, the ultimate sentence of 63 months would have been imposed anyway based on the higher extortion

sentence. We have addressed the fraud loss calculat ion because our
remand to the District Court for reconsideration of Antico's sentence in light of our reversal on Counts 17 and 18 (wire fra ud) and our ruling on Antico's aggravating role in the extortion scheme m ay affect the grouping chosen by the District Court in its ultimate senten ce.

23. Antico's conviction on the RICO Count is unaffe cted by our reversal
of Counts 17 and 18 because the McCausland wire fra ud scheme was not charged as predicate racketeering acts.

41Eleven through Sixteen (wire fraud). We reverse the

conviction on Counts Seventeen and Eighteen (wire f raud). Finally, we vacate Antico's sentence and remand to the District Court for resentencing in accordance with this opinion.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

42