2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-30-2012

USA v. Joseph Donahue

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-4634

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Recommended Citation

"USA v. Joseph Donahue" (2012). 2012 Decisions. Paper 1513.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 10-4634

_____________

UNITED STATES OF AMERICA

v.

JOSPEH P. DONAHUE,

 Appellant

____________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(No. 3-08-cr-00221-001)

District Judge: Hon. James M. Munley

_________

Submitted Pursuant to Third Circuit LAR 34.1(a)

Submitted January 24, 2012

_________

Before: AMBRO, CHAGARES, and HARDIMAN, Circuit Judges.

(Filed: January 30, 2012)

____________

OPINION

____________

CHAGARES, Circuit Judge.

A jury convicted Joseph P. Donahue of four counts of bank fraud, ten counts of 

using a credit card with intent to defraud, one count of money laundering, and one count 
2

of false statements, all of which related to a series of schemes in which Donahue 

persuaded his victims to join his business ventures and then appropriated their identities 

to make unauthorized purchases and to obtain additional lines of credit without his 

victims’ knowledge. Donahue now appeals his convictions, arguing the District Court 

erred by denying his motion for a judgment of acquittal or a new trial based on the 

Government’s alleged Brady violation and alleged violations of Federal Rules of 

Evidence 403 and 404(b). We will affirm.

I. 

We write solely for the parties’ benefit and thus recite only the facts essential to 

our disposition. Because this appeal comes to us following a jury’s guilty verdict, we set 

forth the facts as viewed in the light most favorable to the Government.

On January 6, 2010, a federal grand jury returned a sixteen-count indictment1

 1 The term “indictment” refers to the Second Superseding Indictment.

charging Donahue with four counts of bank fraud, in violation of 18 U.S.C. § 1344, ten 

counts of using a credit card with intent to defraud, in violation of 18 U.S.C. § 1029, one 

count of money laundering, in violation of 18 U.S.C. § 1956(a)(1)(A), and one count of 

false statements, in violation of 18 U.S.C. § 1001. The majority of these charges were 

based on Donahue’s scheme to “enlist and recruit shareholders, investors and partners in 

various businesses that [he] owned and controlled,” obtain credit cards in his victims’ 

names for the purpose of paying the businesses’ operating expenses, and then use these 

approved credit cards for personal expenses and open up new lines of credit in his 

victims’ names without their authorization. Appendix (“App.”) 67-69. Donahue was 
3

also charged with knowingly making six false statements to FBI agents upon being 

questioned about the above activities (Count 14). App. 92-94. 

On April 1, 2009, Donahue entered a plea of not guilty to the indictment. A 

unanimous jury subsequently convicted Donahue on all sixteen counts following an 

eight-day trial that concluded on March 4, 2010. On December 3, 2010, the District 

Court sentenced Donahue to a term of 121 months of imprisonment and five years of 

supervised release. The District Court also ordered Donahue to pay $325,414.67 in 

restitution. This appeal followed. 

II.

The District Court had jurisdiction under 18 U.S.C. § 3231, and we have 

jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291. 

III. 

A.

On appeal,2

 2

 The Government argues that we should exercise our authority under the Fugitive 

Disentitlement Doctrine to dismiss Donahue’s appeal because, after filing a notice of 

appeal, he failed to self-surrender on the appointed date and was a fugitive until he was 

captured sixteen days later. Because Donahue’s appeal fails on the merits, we need not 

address this argument.

Donahue first contends the District Court erroneously refused to grant 

him a new trial or enter a judgment of acquittal based on the Government’s failure to 

inform Donahue that FBI Special Agent Michael Baumgardner had likely committed 

perjury during his testimony at the suppression hearing and at trial, which Donahue 

alleges constitutes a violation of Brady v. Maryland, 373 U.S. 83 (1963). When 

analyzing a Brady claim, we exercise plenary review of the District Court’s conclusions 
4

of law and we review its findings of fact for clear error. United States v. Pelullo, 14 F.3d 

881, 886 (3d Cir. 1994). 

Under Brady, “the suppression by the prosecution of evidence favorable to an 

accused . . . violates due process where the evidence is material either to guilt or to 

punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 

87. Evidence is material “if there is a reasonable probability that, had the evidence been 

disclosed to the defense, the result of the proceeding would have been different.” 

Strickler v. Greene, 527 U.S. 263, 280 (1999) (quotation marks and citation omitted). In 

assessing a potential Brady violation, we take into account the potential effect of the 

missing evidence “in light of the totality of the circumstances and with an awareness of 

the difficulty of reconstructing” the way the proceedings would have occurred if the 

missing evidence had been included. United States v. Bagley, 473 U.S. 667, 683 (1985)

(plurality opinion). A conviction may be reversed under Brady only “upon a showing 

that the favorable evidence could reasonably be taken to put the whole case in such a 

different light as to undermine confidence in the verdict.” Youngblood v. West Virginia,

547 U.S. 867, 870 (2006).

At issue here is the testimony of Baumgardner regarding whether or not he told 

Donahue during interrogation that “Gordon Zubrod says, ‘Hello.’”3

 3

 Zubrod is the Assistant United States Attorney responsible for an earlier prosecution of 

Donahue. He is also representing the Government in the instant matter.

 During the 

suppression hearing held on February 5, 2010, Baumgardner testified about Donahue’s 

statements during an interview that he and FBI Special Agent James Glenn conducted at 
5

Donahue’s office. Supplemental Appendix (“Supp. App.”) 13-17. The false statements 

made by Donahue during this interview, which included claiming that he had not been 

involved in business dealings with victim Scott Carey and that he was unfamiliar with the 

address where his girlfriend and their two children resided, form the basis for Donahue’s 

conviction on Count 14 of the indictment. Regarding the challenged statement, 

Baumgardner testified at the suppression hearing that he told Donahue that Zubrod would 

be prosecuting his case, but responded that he did not “recall” telling Donahue that 

Zubrod said hello. Supp. App. 36-37. At trial, Baumgardner again testified regarding 

Donahue’s false statements during the interview and explained that he had indicated to 

Donahue that Zubrod would be the prosecutor assigned to his case. Baumgardner was 

not specifically asked whether he had made the challenged “hello” statement. 

Following Baumgardner’s trial testimony, Glenn testified that the written report of 

the Donahue meeting was accurate in all respects except insofar as it omitted 

Baumgardner’s statement to Donahue that “Gordon Zubrod says, ‘Hello.’” App. 1226. 

Donahue also testified that Baumgardner made this statement to him. App. 1542. 

Donahue admitted during his trial testimony that he had answered the agents’ questions 

untruthfully and stated that he would have done so even if Donahue had not made the 

“hello” statement because he was “under tremendous duress.” Id. 

While the trial was ongoing, Zubrod informed an FBI supervisory agent that he 

was concerned Baumgardner had committed perjury, and the decision was made to 

remove Baumgardner from the case. Supp. App. 1. Baumgardner did not respond

positively to this development. Id.
6

Under these circumstances, we agree with the District Court that no Brady violation 

occurred. Although Donahue argues vociferously that he was entitled to know

immediately about Zubrod’s concerns related to Baumgardner’s truthfulness and 

Baumgardner’s response to his removal from the case,4 such information was immaterial 

because the result of this case would not have been different even if we assume (without 

deciding) that this information should have been disclosed.5

B.

 Glenn corroborated 

Baumgardner’s testimony regarding the FBI report of the meeting with Donahue and the 

statements Donahue made therein, and Donahue himself admitted that he had made false 

statements to the agents. Thus, even if the information sought by Donahue had been 

disclosed during trial, this information could not “reasonably be taken to put the whole 

case in such a different light as to undermine confidence in the verdict.” Youngblood,

547 U.S. at 870.

Donahue also argues that evidence of other bad acts was improperly admitted in 

violation of Federal Rules of Evidence 404(b) and 403. We review this claim for abuse 

of discretion. United States v. Kemp, 500 F.3d 257, 295 (3d Cir. 2007). “The ‘admission 

of evidence is an abuse of discretion if the district court’s action was arbitrary, fanciful or 

clearly unreasonable,’ and ‘we will not disturb a trial court’s exercise of discretion unless 

 4

 Donahue also argues that the communications related to Baumgardner’s testimony may 

refer to other statements which constitute perjury, but there is no evidence to support this 

argument. Donahue Br. 21-23.

5

 Regarding Baumgardner’s response to being removed from this case, we cannot see 

how the Government had any obligation to disclose this information because it had no 

bearing on the elements of the charged crimes and would likely have been inadmissible 

for impeachment purposes. 
7

no reasonable person would adopt the district court’s view.’” United States v. Starnes, 

583 F.3d 196, 214 (3d Cir. 2009) (internal punctuation omitted) (quoting Ansell v. Green 

Acres Contracting Co., 347 F.3d 515, 519 (3d Cir. 2003)). We exercise plenary review, 

however, over the District Court’s legal interpretation of the Federal Rules of Evidence 

and over any determination made by the District Court as to whether evidence falls 

within the scope of Rule 404(b). United States v. Green, 617 F.3d 233, 239 (3d Cir. 

2010). 

Donahue’s argument appears to relate to the testimony of three Government 

witnesses – Steven Porpora, Stephen Kelley, and Steve Peters – who testified about 

uncharged conduct by Donahue which was substantially similar to that charged in the 

indictment.6

Federal Rule of Evidence 404(b) prohibits the introduction of “[e]vidence of other 

crimes, wrongs, or acts” for the purpose of “prov[ing] the character of a person in order 

to show action in conformity therewith.” Such evidence may be admitted, however, “for 

other purposes, such as proof of motive, opportunity, intent, preparation, plan, 

 All three witnesses testified that they were involved in businesses with 

Donahue and had their credit used in an unauthorized manner. Donahue asserts that this 

evidence was admitted erroneously because it was introduced for the purpose of showing 

“that Donahue had done allegedly dishonest or questionable things before, in a similar 

fashion, and he therefore is likely to have done it again.” Donahue Br. 26.

 6

 Donahue also mentions the testimony of a bank employee and two of his businesses’ 

former employees, apparently for the purpose of arguing that the admission of certain 

parts of these witnesses’ testimony was erroneous. Donahue Br. 7-8. Because this 

testimony is clearly relevant to the charged conduct and does not appear to violate any 

evidentiary rules, this argument is without merit.
8

knowledge, identity, or absence of mistake or accident,” so long as “the prosecution in a 

criminal case [provides] reasonable notice in advance of trial . . . of the general nature of 

any such evidence it intends to introduce at trial.” Id. Thus, we have held that evidence 

of other acts may be admitted under Rule 404(b) when it (1) has a proper evidentiary 

purpose, (2) is relevant under Rule 402, (3) is not substantially more prejudicial than 

probative as required by Rule 403, and (4) is accompanied by a limiting instruction, when 

such an instruction is requested. United States v. Cross, 308 F.3d 308, 321 (3d Cir. 

2002).7

Under these circumstances, the District Court did not abuse its discretion in 

determining that the testimony of Porpora, Kelley, and Peters satisfied Rule 404(b). This 

evidence was relevant for the purpose of showing that Donahue had long employed a 

common plan or scheme to defraud his victims, and for showing his intent when 

committing the charged crimes. This evidence was also not substantially more 

prejudicial than probative, given that it aided the jury in understanding the credit scheme 

devised by Donahue and was substantially similar to the testimony of the witnesses 

whose victimization was charged in the indictment. Moreover, as Donahue concedes, the 

 7

 The Government argues that Rule 404(b) should not apply to the evidence at issue 

because it is “intrinsic” to the charged offenses. Gov’t Br. 36-37. Evidence may be 

deemed “intrinsic” if it “directly proves the charged offense” or if it constitutes an 

“uncharged act[] performed contemporaneously with the charged crime [which] 

facilitate[s] the commission of the charged crime.” United States v. Green, 617 F.3d 233, 

248-49 (3d Cir. 2010) (internal punctuation and citations omitted). Because the 

testimony at issue here does not fit neatly into either category of intrinsic evidence, we 

believe it is best analyzed under Rule 404(b).
9

District Court provided an appropriate limiting instruction. Thus, the Rule 404(b) 

elements are satisfied.

IV.

For the foregoing reasons, we will affirm the judgment of conviction.