PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT 

_____________

No. 15-4011

_____________

UNITED STATES OF AMERICA

v.

RONALD W. REPAK,

 Appellant 

_____________

On Appeal from the United States District Court

for the Western District of Pennsylvania

District Court No. 3-14-cr-00001-001

District Judge: The Honorable Kim R. Gibson 

Argued: December 19, 2016

Before: SMITH, Chief Judge, MCKEE, and SHWARTZ,

Circuit Judges

(Filed: March 28, 2017)
2

Rebecca R. Haywood, Esq.

Laura S. Irwin, Esq. [ARGUED]

700 Grant Street

Suite 4000

Pittsburgh, PA 15219

Counsel for Appellee

Timothy J. Lyon, Esq. [ARGUED]

Suite 1801

310 Grant Street

Pittsburgh, PA 15219

Counsel for Appellant

________________

OPINION

________________

SMITH, Chief Judge

Ronald Repak was convicted of two counts of 

Hobbs Act extortion, in violation of 18 U.S.C. § 1951, 

and two counts of federal program bribery, in violation of 

18 U.S.C. § 666. Repak appeals his conviction and 

sentence on those counts. For the reasons stated below, 

we will affirm.
3

I

This is a public corruption case coming out of 

Johnstown, Pennsylvania. The defendant, Ronald Repak, 

was the Executive Director of the Johnstown 

Redevelopment Authority (“JRA”), which receives 

federal and state funding to assist in economic 

development for the City of Johnstown. A voluntary 

Board of Directors governs the JRA. To promote 

economic development in Johnstown, the JRA’s Board of 

Directors awards contracts to remediate industrial 

proprieties and issues grants to attract companies to 

Johnstown. 

While the JRA’s Board of Directors ultimately 

confers contracts and grants, the JRA’s Executive 

Director, who runs the day-to-day operations of the 

organization, makes recommendations to the Board as to 

which contractors should receive those contracts and 

grants. The JRA’s Board of Directors “relied on the 

director to keep [them] informed as to what was going 

on.” JA263. As one JRA Board member testified, “95 

percent of what any board member [knew] in most . . . 

situations . . . w[as] told [to them] by the director.” 

JA262–63. In short, the Executive Director plays a vital 

role in the process of selecting who receives JRA 

contracts and grants. 

Repak was the Executive Director from November 

1977 to February 2013. His assistant was Debbie Walter. 
4

With Walter’s help, Repak solicited a number of items 

from contractors who had been awarded contract work by

the JRA during his time as Executive Director.

1

 Repak’s

solicitations included requests for concert tickets, 

sporting event tickets, and golf outings. JRA contractors

acquiesced in Repak’s solicitations because “if [they] 

didn’t, [they] felt that [they] would lose work.” JA284. 

As one contractor testified, Repak “would sometimes . . . 

provide some innuendos like, ‘Hey, I’m reviewing some 

invoice here of yours,’ which [was] usually followed up 

with some type of request. Or sometimes, [he would 

say,] ‘Well, I can get someone else to do the work.’” Id.; 

see also JA301 (“Mr. Repak provided a lot of, I said 

innuendos, subtle things through conversations. And 

then it would always be followed in a short period of 

time by either an instruction or request. . . . [W]ith him[,] 

[instructions and requests] were the same thing.”).

Of particular importance in this appeal are two

items that Repak received from JRA contractors but that 

were unassociated with any JRA project: a new roof on 

his house and excavating services for his son’s gym. The 

Government also charged Repak with receipt of 

Pittsburgh Steelers tickets from another contractor, 

 

1 Most of Repak’s solicitations were uncharged conduct 

admitted at trial through the District Court’s contested 

ruling under Rule 404(b) of the Federal Rules of 

Evidence, which is addressed below.
5

Kimball & Co. The jury, however, acquitted Repak on 

the counts related to receipt of the Steelers tickets. For 

that reason, we discuss only the receipt of the roof and 

excavating services in detail.

In 2009, JRA contractor EADS Group (“EADS”) 

replaced the roof on Repak’s home at no cost to Repak. 

While Repak and several EADS employees were 

together, Repak overheard an EADS employee, Stephen 

Sewalk, discussing his past roofing business. Repak then 

asked Sewalk to take a look at the roof on his home. At 

that time, EADS did significant business with the JRA. 

Based on Repak’s past solicitations for tickets and other 

items, Sewalk stated that he “inward[ly] sigh[ed]” 

following Repak’s roof request and thought “here we go 

[again].” JA286. Although Sewalk initially tried to 

ignore Repak’s request, Sewalk “knew it wasn’t going to 

go away” after Repak made the request again several 

months later. Id. Sewalk then went to look at Repak’s 

roof but testified at trial that he did not give Repak a 

quote for work on the roof. Rather, after Sewalk spoke

with EADS’s CEO, EADS “figured [the roof] was going 

to be another . . . favor” and informed Repak that it

would cover the cost of replacing his roof. JA287. 

Sewalk testified that, although Repak offered to pay for 

the roof at one point, Repak also told him to “bury [the 

roofing expenses] in an invoice” to the JRA. JA288. 

EADS ultimately replaced the roof at a cost of $3,000 to 

$4,000. Instead of concealing those expenses in JRA 
6

invoices as Repak instructed, EADS simply bore the cost 

of replacing the roof. When asked at trial why EADS did 

this for Repak, Sewalk responded that EADS replaced 

the roof simply so that EADS could “maintain the 

workload” with the JRA. Id.; see also JA289 (“[W]e 

wanted to keep people employed and do our work. So I 

figured if we told [Repak] no that we weren’t going to be 

working there much longer.”).

Also in 2009, a JRA contractor performed 

excavating services at a gym owned by Repak’s son. 

Neither Repak nor his family paid for it. Repak initially 

asked another JRA contractor to do the excavating work, 

but, after Repak told the contractor to bury $5,000 out of 

the $6,000 excavating price quoted in a JRA invoice, the 

contractor turned him down and refused to work for the 

JRA again. As that contractor put it, “I just discussed it 

with my wife and kids, . . . and we just decided it would 

be better just to walk away [than continue to work for the 

JRA and Repak].” JA359.

Repak then enlisted another JRA contractor, L&M

Excavating Company (“L&M”), to do the work. Repak 

instructed L&M to demolish two abandoned homes and 

level lots adjoining his son’s gym and then to spread 

gravel on the leveled area for parking. This work cost 

L&M $17,500. After completing the requested work, an 

L&M employee, Rick McNulty, asked Repak whom

L&M should invoice for the work. Repak told McNulty 

to “just bury [the $17,500] in invoices” to the JRA and 
7

did not offer to pay for L&M’s services. JA325–26. At 

that time, sixty percent of L&M’s business came from 

the JRA. Yet, rather than follow Repak’s instruction to 

submit fraudulent invoices, L&M assumed the $17,500 

cost to level and gravel the property near the gym. When 

asked why L&M did this, McNulty explained that 

providing these gratuitous services to Repak was just

“part of doing business with the [JRA] and Mr. Repak.” 

JA311.

As members became suspicious of Repak’s 

dealings with JRA contractors, the JRA’s Board of 

Directors implemented policies to control gratuities and 

expenditures. The gratuities policy prohibited JRA 

contractors from offering any gratuity to any JRA 

employee and prohibited JRA employees from accepting 

the same. The expenditures policy required the approval 

of the JRA’s Board of Directors for all JRA expenditures 

over $500. At trial, JRA contractors expressed the relief 

they felt following enactment of the gratuities policy. 

One JRA contractor testified, “I was relieved [because] 

. . . it gave me my ammunition to say no, I guess. I 

didn’t have to continue doing this.” JA290. Echoing the 

sentiment behind the JRA policies, another contractor 

opined, “It had to stop. It was getting to the point that 

[Repak] was like one power running everything in the 

city of Johnstown and if . . . this wasn’t the way you 

would choose to do business, you wouldn’t do business 

here.” JA330.
8

II

A grand jury returned a six-count indictment 

against Repak arising out of his actions as the Executive 

Director of the JRA. The six counts related to three 

underlying factual circumstances: Counts 1 and 2 

pertained to Repak’s receipt of Pittsburgh Steelers tickets 

from Kimball & Co.; Counts 3 and 4 dealt with the 

installation of a new roof on Repak’s house by EADS; 

and Counts 5 and 6 related to the excavation services 

performed by L&M at Repak’s son’s gym. Counts 1, 3, 

and 5 charged Repak with violations of the Hobbs Act, 

18 U.S.C. § 1951(a), for knowing obstruction, delay, or 

effect on commerce “by extortion” through the 

solicitation and receipt of goods and services, “which 

were not due him or his office, and to which he was not 

entitled, . . . in exchange for [his] official action and 

influence as the Executive Director of the [JRA] to 

facilitate the award of [JRA] contracting work.” JA55, 

JA57, JA59. Counts 2, 4, and 6 charged Repak with 

violations of the federal program bribery statute, 18 

U.S.C. § 666(a)(1)(B), alleging that he “did corruptly 

solicit, demand, accept, and agree to accept something of 

value, intending to be influenced and rewarded in 

connection with [JRA business],” specifically that Repak

respectively “solicited and obtained” goods and services

“in exchange for his official actions and influence as the 

Executive Director of the [JRA].” JA56, JA58, JA60. 
9

Before trial, the District Court decided two 

motions in limine filed by the Government that were 

relevant to Repak’s appeal. First, Repak challenged the 

admission of evidence of solicitations and items he 

received beyond those items charged in the indictment 

(“other-acts evidence”). The District Court allowed the 

Government to introduce the other-acts evidence, 

determining that the evidence was admissible to prove 

Repak’s mental state for the charged offenses. See

United States v. Repak, No. 3-14-cr-00001, 2015 WL 

4108309, at *4–6 (W.D. Pa. July 7, 2015). Second, 

Repak challenged the admission of evidence of an affair 

he had with Walter under Rule 403 of the Federal Rules 

of Evidence. Following briefing on the issue, the District 

Court permitted admission of the affair evidence, 

concluding the affair was relevant to Repak’s mental 

state and would further assist the jury in assessing

Walter’s credibility when she testified. See JA11–17. 

At trial, the parties jointly proposed and, with 

limited exceptions not relevant here, agreed to jury 

instructions. The District Court later read those 

instructions to the jury. The instructions informed the 

jury of the elements of the two charged offenses—

violations of the Hobbs Act and the federal program 

bribery statute. The elements of a Hobbs Act violation 

were defined as follows: 

First, that the defendant took from [the three 

JRA contractors] the property described in 
10

Counts 1, 3, and 5. Second, that the 

defendant did so knowingly and willfully by 

extortion under color of official right. 

Third, that as a result of defendant’s actions 

interstate commerce was obstructed, 

delayed, or affected. 

JA656. The elements of federal program bribery were 

defined as: 

First, that at the time alleged in the 

indictment defendant was an agent of the 

[JRA]. Second, that the [JRA] received 

federal benefits in excess of $10,000 in a 

one-year period. Third, that defendant 

solicited and accepted something of value 

from [the three JRA contractors]. Fourth, 

that defendant acted corruptly with the intent 

to be influenced or rewarded in connection 

with the business and transactions of the 

[JRA].

JA660–61. Repak’s main defense to the charges at trial 

was that he lacked the requisite mental state in accepting

any items to influence the awarding of JRA contracts. 

The jury convicted Repak on Counts 3 through 6, 

the Hobbs Act and federal program bribery charges 

involving the roof on Repak’s house and the excavating 

services for his son’s gym. The District Court sentenced 
11

Repak to 42 months of incarceration on each count of 

conviction, with the sentences to run concurrently. The 

District Court also ordered Repak to pay restitution to 

EADS in the amount of $3,500 and to L&M in the 

amount of $15,000. Repak timely appealed his judgment 

of conviction and sentence.2 

III

The District Court had jurisdiction over this matter 

pursuant to 18 U.S.C. § 3231 because this case involves 

an offense against the laws of the United States. We 

have jurisdiction over the appeal under 28 U.S.C. § 1291. 

On appeal, Repak raises six arguments related to 

the District Court’s evidentiary rulings, the jury 

instructions, the sufficiency of trial evidence, and the 

prosecutor’s conduct during closing arguments. We 

conclude that none are meritorious.

A

Repak’s first contention is that, under Rule 404(b) 

of the Federal Rules of Evidence, the District Court 

improperly admitted evidence of his solicitations of items 

from JRA contractors beyond those charged in the 

 

2 While Repak’s notice of appeal identifies his sentence 

as being appealed, he raises no argument related to the 

sentence independent of his challenges to the judgment 

of conviction.
12

indictment. We review the District Court’s evidentiary 

ruling for abuse of discretion, e.g. United States v. 

Friedman, 658 F.3d 342, 352 (3d Cir. 2011) (citing 

United States v. Starnes, 583 F.3d 196, 213–14 (3d Cir.

2009)), but also “exercise plenary review . . . to the 

extent [the rulings] are based on a legal interpretation of 

the Federal Rules of Evidence,” Complaint of 

Consolidation Coal Co., 123 F.3d 126, 131 (3d Cir. 

1997).

Rule 404(b)(1) states: “Evidence of a crime, 

wrong, or other act is not admissible to prove a person’s 

character in order to show that on a particular occasion 

the person acted in accordance with the character.” Fed. 

R. Evid. 404(b)(1). While generally excluding evidence 

of an individual’s “other acts” to show that individual’s 

propensity to behave in a certain manner, Rule 404(b)(2) 

permits admission of other-acts evidence “for another 

purpose, such as proving motive, opportunity, intent, 

preparation, plan, knowledge, identity, absence of 

mistake, or lack of accident.” Fed. R. Evid. 404(b)(2).

“Rule 404(b) is a rule of general exclusion . . . .” 

United States v. Caldwell, 760 F.3d 267, 276 (3d Cir. 

2014); see also United States v. Brown, 765 F.3d 278, 

291 (3d Cir. 2014) (“Rule 404(b) is generally a rule of 

exclusion.”). That is, “Rule 404(b) directs that evidence 

of prior bad acts be excluded—unless the proponent can 

demonstrate that the evidence is admissible for a nonpropensity purpose.” Caldwell, 760 F.3d at 276. We 
13

clarified in Caldwell that this Court’s past description of

Rule 404(b) as “inclusionary,” see, e.g., United States v. 

Cruz, 326 F.3d 392, 395 (3d Cir. 2003), referred to Rule 

404(b)(2)’s language allowing other-acts evidence to be 

used for any purpose other than to show propensity, Fed. 

R. Evid. 404(b)(2). See Caldwell, 760 F.3d at 276. That 

is, our prior reference to Rule 404(b) as inclusionary 

“merely reiterate[d] the drafters’ decision to not restrict 

the non-propensity uses of evidence.” Id. We used that 

language because, prior to Rule 404(b), the 

corresponding common law rule for other-acts evidence

limited the uses of such evidence. See United States v. 

Green, 617 F.3d 233, 244 (3d Cir. 2010). Rule 404(b) 

altered the common law rule with “inclusionary”

language, allowing the proponent of other-acts evidence

to identify any non-propensity purpose and no longer 

requiring the proponent “to pigeonhole his evidence into 

one of the established common-law exceptions, on pain 

of exclusion.” Id. In sum, Rule 404(b) is a rule of 

exclusion, meaning that it excludes evidence unless the 

proponent can demonstrate its admissibility, but it is also 

“inclusive” in that it does not limit the non-propensity 

purposes for which evidence can be admitted. 

Because Rule 404(b) is a rule of general exclusion, 

the party seeking to admit other-acts evidence has “the 

burden of demonstrating [the evidence’s] applicability.” 

Caldwell, 760 F.3d at 276. Admissibility under Rule 

404(b) requires the satisfaction of four distinct steps: (1) 
14

the other-acts evidence must be proffered for a nonpropensity purpose; (2) that evidence must be relevant to 

the identified non-propensity purpose; (3) its probative 

value must not be substantially outweighed by its 

potential for causing unfair prejudice to the defendant; 

and (4) if requested, the other-acts evidence must be 

accompanied by a limiting instruction. See Huddleston v. 

United States, 485 U.S. 681, 691 (1988); Caldwell, 760 

F.3d at 277–78.

The Government here sought to introduce evidence 

of Repak’s “business relationships with vendors of the 

JRA, which specifically include[d] instances of other 

uncharged acts of solicitations by Mr. Repak to JRA 

vendors, including but not limited to” Kimball & Co., 

EADS, and L&M. JA123. Without further explanation, 

the Government contended in its motion in limine that 

Repak’s “prior course of conduct and business 

dealings/relationship with the named entities, including 

previous solicitations, [was] extremely relevant and 

[would] go directly to prove” Repak’s “knowledge” and 

“corrupt intent.” JA125–26. The prosecution also

argued that the uncharged acts of solicitation were 

admissible under Rule 404(b) as “background” evidence 

to “complete[] the story” and provide “context.” JA127–

29. 

The District Court permitted introduction of the 

proffered evidence. In relevant part, the District Court 

reasoned: 
15

[T]he Court finds that the Rule 404(b) 

evidence that the Government intends to 

introduce is admissible. . . . Defendant’s 

business dealings with the various vendors, 

including other instances of solicitations that 

were not charged in the indictment in this 

case, are relevant to showing a necessary 

element of the crimes charged in this case. 

Specifically, these business dealings and 

other solicitations will be used by the 

Government to establish Defendant’s 

knowledge as to the charges of extortion 

under color of official right and his willful 

intent as to the charges of solicitation by a 

bribe. Thus, the “other acts” evidence is 

being introduced for a proper evidentiary 

purpose and not as propensity evidence. . . . 

The Government intends to introduce other 

act evidence to develop examples of 

solicitations during the course of 

Defendant’s business transactions with 

various entities, and for which Defendant 

acted with the requisite corrupt intent and 

knowledge. Likewise, the Government’s 

evidence of other solicitations is relevant 

under Rule 401 to establish necessary 

elements of the crimes charged in this case. 

The Government has presented a sufficient 

chain of inferences connecting these other 
16

acts to material facts in this case without 

implicating the evidentiary rules’ prohibition 

of using propensity evidence. Furthermore, 

this evidence satisfies the balancing 

requirements of Rule 403. The other act 

evidence to be introduced by the 

Government is probative of facts in this case 

and that probative value is not substantially 

outweighed by any unfair prejudice. 

Finally, in accordance with the law on this 

issue, the Court will provide a limiting 

instruction as necessary.

JA25–27.

Repak challenges the sufficiency of the District 

Court’s Rule 404(b) analysis, arguing that (1) the District 

Court failed to properly explain how the uncharged acts 

of solicitation relate to a non-propensity purpose and (2) 

the District Court erred by not properly scrutinizing the 

evidence’s prejudicial effect vis-à-vis its probative value. 

We agree with Repak that the District Court’s analysis 

was lacking but conclude that, under a proper Rule 

404(b) analysis, the Government’s other-acts evidence

was admissible. 

We proceed by critically analyzing each of the four 

steps in the methodological process for determining 

admissibility under Rule 404(b).
17

1

The Government and District Court satisfied step 

one of the applicable Rule 404(b) analysis, properly 

identifying a non-propensity purpose for introducing 

Repak’s other past solicitations—knowledge and intent.

3

 

See Brown, 765 F.3d at 291; Caldwell, 760 F.3d at 276. 

The plain text of Rule 404(b) allows for the admission of 

other-acts evidence to show knowledge and intent as the 

Government proffered here. See Fed. R. Evid. 404(b) 

(noting that other-acts evidence may be admissible for 

proving “intent” and “knowledge”); see also United 

States v. Vega, 285 F.3d 256, 261 (3d Cir. 2002) 

(“Evidence of prior bad acts may be admitted for the 

purpose of demonstrating the defendant’s knowledge in 

 

3 The District Court did not address the Government’s 

suggestion that the other-acts evidence provides 

“background” for the case. We have held that the use of 

other-acts evidence as “background” can be permissible, 

see, e.g., Green, 617 F.3d at 247, but have recently 

cautioned against overreliance on this purpose as a means 

for admitting other-acts evidence, see United States v. 

Steiner, 847 F.3d 103, No. 14-4628, 2017 WL 437657, at 

*4–6 (3d Cir. Feb. 1, 2017). Because the District Court 

did not rely on the use of other-acts evidence as 

“background” and the evidence here properly showed

Repak’s mental state, we need not address the propriety 

of the Government’s proposed “background” use.
18

the later offense with which he is charged.”). Repak put 

his mental state at issue in this case. His knowledge and 

intent are elements of the two charged offenses. See 18 

U.S.C. § 1951(a); 18 U.S.C. § 666(a)(1)(B); see also

Evans v. United States, 504 U.S. 255, 268 (1992)

(concluding that, to show extortion under the Hobbs Act, 

the Government must prove that a defendant obtained a 

payment “knowing that the payment was made in return 

for official acts”). Repak contested those elements at 

trial, contending that he did not accept items from JRA 

contractors with the intention of influencing the awarding 

of JRA contracts. Use of the uncharged solicitations to 

show Repak’s mental state was a proper non-propensity 

use of that evidence under Rule 404(b).

2

The Government and District Court, however,

faltered at step two of the Rule 404(b) analysis. Both

failed to explain how the Government’s proffered 

evidence was relevant to Repak’s mental state. See

Caldwell, 760 F.3d at 276 (other-acts evidence must be 

“relevant to [a non-propensity] purpose”). Nonetheless, 

the admission of this evidence was proper because it was 

relevant to that non-propensity purpose.

To be relevant, proffered evidence must fit into “a 

chain of inferences—a chain that connects the evidence 

to a proper purpose, no link of which is a forbidden 

propensity inference.” United States v. Davis, 726 F.3d 
19

434, 442 (3d Cir. 2013). “[T]his chain [must] be 

articulated with careful precision because, even when a 

non-propensity purpose is ‘at issue’ in a case, the 

evidence offered may be completely irrelevant to that 

purpose, or relevant only in an impermissible way.” 

Caldwell, 760 F.3d at 281.

We have recently reiterated the importance of 

concretely connecting the proffered evidence to a nonpropensity purpose. In United States v. Caldwell, we 

rejected the use of prior gun possession convictions to 

show a defendant’s knowledge that he actually possessed 

a gun. Id. at 283. Testimony at trial demonstrated that 

the defendant was seen carrying the gun, and yet the 

Government proceeded to introduce the defendant’s prior 

gun possession convictions to show his actual possession 

of the charged gun. Id. at 279. “Because the 

Government proceeded solely on a theory of actual 

possession,” we held that the defendant’s “knowledge 

was not at issue in the case.” Id. (“[A]bsent unusual 

circumstances (such as when a defendant claims he did 

not realize the object in his hand was a gun), the 

knowledge element in a felon-in-possession case will 

necessarily be satisfied if the jury finds the defendant 

physically possessed the firearm.”). We reached that 

conclusion because we could observe “no articulation by 

the Government of a logical chain of inferences showing 

how [the defendant’s] prior convictions [were] relevant to 

show [the non-propensity purpose of] knowledge.” Id. at 
20

281. Rather, the Government there simply relied on ipse 

dixit, stating the “baseline position” that the evidence of 

the defendant’s prior gun convictions was “generally 

relevant” to show the defendant’s knowledge that he 

possessed the gun related to the charged offense. Id. 

That baseline position told us “nothing about how the 

evidence” helped established the defendant’s knowledge. 

Id. We further observed that the District Court in 

Caldwell “likewise failed to articulate how the disputed 

evidence tend[ed] to show that [the defendant] knowingly 

possessed the gun [related to the charged gun 

possession].” Id. In doing so, we “emphasize[d] that it is 

not enough to merely recite a Rule 404(b) purpose that is 

at issue; the Court must articulate how the evidence is 

probative of that purpose.” Id. at 282. In summary, 

Caldwell makes clear that a logical chain of inferences 

must be articulated so that we are “assure[d] that the 

evidence is not susceptible to being used improperly by 

the jury.” Id.

Similarly, in United States v. Brown, 765 F.3d 278 

(3d Cir. 2014), we rebuffed the Government’s efforts to 

introduce evidence of a defendant’s previous use of straw 

purchasers to buy guns to show that the defendant had 

knowledge that he was in a car with a gun. Id. at 294. 

As in Caldwell, we began by noting the complete lack of 

an explanation by the Government for how its evidence 

was relevant to its proffered non-propensity purpose. See 

id. at 293 (“The Government has completely failed to 
21

explain how the fact that [the defendant] used a straw 

man in 2005 to purchase firearms tends to prove that he 

knowingly possessed the gun under the driver’s seat of 

the Impala six years later. These are two entirely distinct 

acts, and participation in one has no relationship to the 

other.”). The Government’s explanation was that the 

defendant’s prior use of a straw purchaser made it “more 

likely that he used . . . a straw purchaser to obtain the 

gun” he was charged with possessing. Id. That, we 

noted, was “too great a leap in logic” and “indubitably 

forged” the Government’s chain of inferences “with an 

impermissible propensity link.” Id. Critically, the 

District Court there also failed to explain sufficiently its 

basis for admitting the evidence. The District Court 

stated simply that the Government could use the evidence 

“to show motive or knowledge and that type of thing 

along those lines.” Id. at 294 (citations omitted). We 

instructed that the District Court “should not merely 

inquire of the prosecution what it wishes the evidence to 

prove” but rather put the Government to the task of 

explaining how the evidence “should work in the mind of 

a juror to establish the fact the government claims to be 

trying to prove.” Id. (quotation marks and citations 

omitted).

The Government’s proffer and District Court’s 

explanation here fell short, failing to explain how 

evidence of uncharged solicitations would have a 

tendency to make Repak’s knowledge and intent more 
22

probable in the mind of a juror. The question is whether 

the evidence of other uncharged solicitations by Repak 

was relevant to show Repak’s mental state as to the 

charged conduct—solicitation of the roof and excavation 

services. In its motion in limine, the Government merely 

stated, in cursory fashion, that Repak’s “prior course of 

conduct and business dealings/relationship with the 

named entities, including previous solicitations, [was] 

extremely relevant and [would] go directly to prove” 

Repak’s “knowledge” and “corrupt intent.” JA125–26. 

As in Caldwell and Brown, the Government failed to 

articulate a chain of inferences supporting the admission 

of Repak’s uncharged solicitations. Instead, the 

Government stated only that a logical chain connecting 

the evidence to a non-propensity purpose exists. That 

statement is not enough to demonstrate the admissibility 

of Rule 404(b) evidence. The District Court should have 

asked the Government to explain “how the proffered 

evidence should work in the mind of a juror to establish” 

Repak’s knowledge and intent related to the roof and 

excavation services. Caldwell, 760 F.3d at 282 (quoting 

United States v. Miller, 673 F.3d 688, 699 (7th Cir. 

2012)). 

The District Court’s analysis of the Rule 404(b) 

admission is also wanting. As quoted above, the District 

Court observed, “Defendant’s business dealings with the 

various vendors, including other instances of solicitations 

that were not charged in the indictment in this case, are 
23

relevant to showing a necessary element of the crimes 

charged in this case.” JA26. It added that “[t]he 

Government ha[d] presented a sufficient chain of 

inferences connecting these other acts to material facts in 

this case.” JA27. Like the Government’s explanation, 

this analysis is inexact and fails to adequately link the 

other-acts evidence to a non-propensity purpose with 

“careful precision.” Caldwell, 760 F.3d at 281; see also 

Brown, 765 F.3d at 294 (“When confronted with a 

proffer under Rule 404(b), a district court should not 

merely inquire of the prosecution what it wishes the 

evidence to prove.”). In essence, this was the “mere 

recitation of the purposes in Rule 404(b)(2)” that we have 

previously deemed inadequate. Caldwell, 760 F.3d at 

277.

Despite the inexact nature of the Government’s 

proffer and the District Court’s Rule 404(b) analysis, our 

review of the record leads us to conclude that the 

evidence of Repak’s uncharged solicitations was properly 

admitted to prove Repak’s mental state. Although we 

strongly prefer that the Government and District Court 

provide the chain of inferences supporting the admission 

of other-acts evidence (as this Court has repeatedly 

required), we are able to discern that the chain exists 

here. Repak repeatedly solicited and received items from 

JRA contractors at great cost to the contractors; the 

growing costs of these items to the JRA contractors tends

to show that Repak knew that these items were not 
24

unilateral token gifts; therefore, it is more likely that 

Repak knowingly and intentionally accepted the roof and 

excavating services with an understanding that those 

items were to influence the award of JRA contracts to 

those contractors.

4

 This chain of inferences did not 

require the jury to make “too great a leap in logic.” 

Brown, 765 F.3d at 293. 

That chain of inferences is not unfamiliar. In 

United States v. Console, 13 F.3d 641 (3d Cir. 1993), we 

 

4 The uncharged solicitations may also have been used to 

explicate Repak’s guilt by providing insight into the 

minds of the contractors Repak extorted: through 

Repak’s repeated demands for items, the JRA contractors 

came to believe that they would lose JRA work if they 

failed to acquiesce in his demands. Testimony revealing 

the state of mind of an extortion victim is relevant in 

Hobbs Act cases. See United States v. Stirone, 311 F.2d 

277, 280 (3d Cir. 1962) (“It is well settled that testimony 

showing the state of mind of the victim is permitted in 

Hobbs Act cases.”); see also United States v. Dozier, 672 

F.2d 531, 542 (5th Cir. 1982) (“[T]he victim’s fearful 

state of mind is a crucial element in proving extortion.”

(quoting United States v. Hyde, 448 F.2d 815, 845 (5th 

Cir. 1971))); United States v. Craig, 573 F.2d 513, 520 

(7th Cir. 1978) (“We believe that the state of mind 

testimony of the victims was admissible to show that the 

victims’ consent was induced by defendant’s office.”).
25

upheld the admission of other-acts evidence against two 

lawyers who conspired with a doctor to submit fraudulent 

medical bills to insurances companies. Id. at 658–59. 

The other-acts evidence there showed that the lawyers 

also engaged in a similar scheme with doctors other than 

the doctor charged in the indictment. Id. We reasoned 

that the other-acts evidence “tended to support the 

finding that [the lawyers] knew [the] bills [related to the 

charged conduct] were fraudulent and that they 

intentionally submitted them to insurance companies as 

part of a broader plan to defraud insurance companies 

through fraudulent personal injury claims.” Id. at 659. 

For that reason, we permitted admission of the evidence 

under Rule 404(b). 

In a recent similar case, we concluded that Rule 

404(b) allowed for the admission of evidence that a

defendant—the Executive Director of the Legislature for 

the Virgin Islands—received a kickback bribe from a 

third party. See United States v. Willis, 844 F.3d 155, 

169–70 (3d Cir. 2016). Much like the present case, the 

Government alleged that the defendant received money 

from contractors in exchange for the defendant’s

facilitating the award of certain renovation contracts to 

those same contractors. Id. at 158. The Government 

proffered other-acts evidence showing that, while he held 

a different government position, the defendant received

money from an individual in exchange for lifting a lien 

on that individual’s bank account. Id. at 169. The 
26

individual was one of the contractors connected to the 

charged conduct. Id. The purpose for introducing that

proffered evidence was “to demonstrate that [the 

defendant] was not mistaken about the nature of the 

transactions involved in the . . . renovation and fully 

intended to accept bribes and commit extortion.” Id. at 

169–70. We determined that a “strong nexus” existed 

between the past bribe the defendant received and the 

charged conduct. Id. More specifically, the earlier bribe 

demonstrated that the charged payments from contractors 

“were not loans, that they were not gifts, and that [the 

defendant] intended to accept cash in exchange for 

handing out more government contract work.” Id. 

Much like in Willis, the past solicitations here were 

closely related to the charged acts, and participation in 

one had a relationship to the other. Cf. Brown, 765 F.3d 

at 293. The Government’s evidence of uncharged 

solicitations demonstrated Repak’s course of conduct 

over a relatively circumscribed time period with the same 

actors involved in the charged conduct. That evidence 

thus tends to show that Repak “intended to accept [the 

roof and excavating services] in exchange for handing 

out more government contract work.” Willis, 844 F.3d at 

170. The other-acts evidence makes it more likely that 

Repak did not “unwittingly” solicit and receive the roof 

and excavation services without knowing or intending 

that the services were meant to influence him in his role 

as the JRA’s Executive Director. Vega, 285 F.3d at 262 
27

(permitting use of Rule 404(b) evidence related to prior 

conspiracy to show that the defendant “did not 

unwittingly participate” in the charged crime). 

Therefore, while the Government and District Court

failed to adequately connect the other-acts evidence to a 

non-propensity purpose, a more fulsome examination

demonstrates that the evidence was relevant to prove

Repak’s mental state.

3

The District Court’s analysis also fell short at step 

three of the Rule 404(b) analysis. That third step requires 

that other-acts evidence must not give rise to a danger of 

unfair prejudice that substantially outweighs the 

probative value of the evidence under Rule 403 of the 

Federal Rules of Evidence. See Brown, 765 F.3d at 291. 

Rule 403 states: “The court may exclude relevant 

evidence if its probative value is substantially 

outweighed by a danger of . . . unfair prejudice.” Fed. R. 

Evid. 403. Rule 403 “creates a presumption of 

admissibility.” United States v. Claxton, 766 F.3d 280, 

302 (3d Cir. 2014). “Evidence cannot be excluded under 

Rule 403 merely because its unfairly prejudicial effect is 

greater than its probative value. Rather, evidence can be 

kept out only if its unfairly prejudicial effect 

‘substantially outweigh[s]’ its probative value.” United 

States v. Cross, 308 F.3d 308, 323 (3d Cir. 2002)

(alteration in original) (quoting Fed. R. Evid. 403). 

Nevertheless, district courts must undertake some 
28

analysis, i.e., provide “meaningful balancing,” when 

applying Rule 403 to determine the admissibility of Rule 

404(b) evidence. Caldwell, 760 F.3d at 283. “We will 

reverse where the Court’s reasoning ‘is not apparent from 

the record.’” Id. (quoting United States v. Smith, 725 

F.3d 340, 348 (3d Cir. 2013)).

The balancing (or lack thereof) performed in 

Caldwell is instructive. In Caldwell, the District Court 

stated: “What I want to say is that not only are [the past 

convictions] admissible under 404(b), but because 

knowledge and intent are at issue here, they are more 

probative than prejudicial. I find that the probative value 

outweighs any prejudicial effect as well as to their 

admissibility.” Id. at 284. That analysis, we concluded, 

offered “nothing more than a bare recitation of Rule 

403.” Id. The omission of any “meaningful evaluation” 

of the prejudicial effect of the Rule 404(b) evidence 

failed to ensure that the probative value of the evidence 

was not outweighed by the danger of unfair prejudice. 

Id. 

The District Court’s analysis here is strikingly 

similar to the recitation of Rule 403 we determined to be 

inadequate in Caldwell. The District Court stated simply 

that the other-acts evidence “satisfies the balancing 

requirements of Rule 403.” JA27. In the following 

sentence, the District Court simply reiterated its 

conclusion: “The other act evidence to be introduced by 

the Government is probative of facts in this case and that 
29

probative value is not substantially outweighed by any 

unfair prejudice.” Id. Although the Government 

tendered its Rule 403 balancing when offering its 

evidence, the District Court needed to provide its own

Rule 403 balancing before admitting the evidence. An 

evaluation under Rule 403 is not meaningful if it merely 

states a bare conclusion. More is required. As the 

District Court failed to offer its own reasoning, the 

District Court’s balancing failed to provide “meaningful 

evaluation” of the Government’s evidence of Repak’s 

uncharged solicitations. Caldwell, 760 F.3d at 284. 

That said, it is “apparent from the record” that the 

prejudicial effect of the Government’s evidence does not 

substantially outweigh the probative value of that 

evidence. Id. The probative value of Repak’s past 

solicitations was significant. See Willis, 844 F.3d at 170 

(upholding the admission of a past bribe as evidence 

tended to show that a government official did not 

perceive the bribe to be a loan or a gift); Vega, 285 F.3d 

at 262 (permitting use of Rule 404(b) evidence because 

that evidence tended to show that the defendant “did not 

unwittingly participate” in the charged crime); Console, 

13 F.3d at 659 (concluding that Rule 404(b) evidence 

was relevant to show defendants’ knowledge and intent 

regarding the charged conduct). Moreover, Repak 

challenged the proof as to his knowledge and intent, 

making those elements of the charged offenses the 

centerpiece of the trial. Cf. Caldwell, 760 F.3d at 283
30

(“[T]he probative value of prior act evidence is 

diminished where the defendant does not contest the fact 

for which supporting evidence has been offered.”). 

Repak himself concedes that this evidence played a key 

role at trial and likely contributed to the Government’s

carrying its burden as to his mens rea. See Reply Br. 16 

(“[A]t trial the Government repeatedly emphasized the 

404(b) evidence . . . .”). 

That compelling probative value is not 

substantially outweighed by any prejudice arising from 

the admission of the uncharged solicitations. For one, as 

explained below, the District Court provided a limiting 

instruction, mitigating any concern that the jury would 

have used this evidence to draw a propensity inference. 

See infra. We have no reason to believe the jury did not 

follow the limiting instruction. See United States v. 

Newby, 11 F.3d 1143, 1147 (3d Cir. 1993) (“[W]e 

presume that the jury will follow a curative instruction 

unless there is an ‘overwhelming probability’ that the 

jury will be unable to follow it and a strong likelihood 

that the effect of the evidence would be ‘devastating’ to 

the defendant.” (internal quotation marks and citations 

omitted) (quoting Greer v. Miller, 483 U.S. 756, 766 n.8 

(1987))). Second, any prejudice here does not compare

to the “heightened” prejudicial impact identified in 

Caldwell. 760 F.3d at 284. There, we observed the 

“heightened” prejudice caused by the introduction of 

other-acts evidence when that evidence was “admitted in 
31

the form of a prior criminal conviction, especially a prior 

conviction for the same crime as that being tried.” Id. In 

comparison, the Government here introduced other-acts 

evidence of Repak’s uncharged conduct. Given that 

difference, the evidence of Repak’s uncharged conduct

was simply not of the same prejudicial ilk as the identical 

past convictions introduced in Caldwell. 

The District Court’s application of Rule 403 to the 

Government’s other-acts evidence lacked the rigor this 

Court requires. Yet in our application of proper Rule 403 

scrutiny, we conclude than any danger of unfair prejudice 

resulting from admission of Repak’s uncharged 

solicitations fails to substantially outweigh the probative 

value of those solicitations.
32

4

Finally, the District Court dutifully performed the 

fourth step of the Rule 404(b) analysis, appropriately 

providing limiting instructions for the other-acts evidence

as requested by Repak. As we have held, the District 

Court must provide the jury with a limiting instruction, if 

requested, “advis[ing] the jury that the evidence is 

admissible for a limited purpose and may not be 

considered in another manner.” Caldwell, 760 F.3d at 

277; see also Brown, 765 F.3d at 291. Here, the District 

Court provided two limiting instructions. During the 

trial, the District Court advised the jury that: 

[t]his evidence of other acts, in other words, 

acts that are not charged in the indictment, 

was admitted only for limited purposes. 

You may only consider this evidence for the 

purpose of deciding whether the defendant 

had the state of mind, knowledge, or intent 

necessary to commit the crimes charged in 

the indictment.

JA341–42. At the close of the evidence, the District 

Court instructed, “[The] evidence of other acts was 

admitted for limited purposes. You may consider this 

evidence only for the purpose of deciding whether the 

defendant had the knowledge or intent necessary to 

commit the crimes charged in the indictment.” JA649–

50. The District Court thus satisfied step four in 
33

providing a limiting instruction on the jury’s use of the 

Rule 404(b) evidence.

***

We agree with Repak that the Government and 

District Court failed to adequately explain the basis for 

admitting the other-acts evidence under Rule 404(b). 

Nevertheless, under a proper Rule 404(b) inquiry, the 

evidence of Repak’s uncharged solicitations was 

admissible.

B

Repak contends that the admission of evidence 

regarding his affair with his assistant, Debbie Walter,

was an error under Rule 403 of the Federal Rules of 

Evidence. This Court reviews the District Court’s 

admission for abuse of discretion. See United States v. 

Bailey, 840 F.3d 99, 117 (3d Cir. 2016). 

As noted above, Rule 403 states: “The court may 

exclude relevant evidence if its probative value is 

substantially outweighed by a danger of . . . unfair 

prejudice.” Fed. R. Evid. 403. We have observed: 

Rule 403 does not provide a shield for 

defendants who engage in outrageous acts, 

permitting only the crimes of Caspar 

Milquetoasts to be described fully to a jury. 

It does not generally require the government 
34

to sanitize its case, to deflate its witnesses’

testimony, or to tell its story in a monotone.

Cross, 308 F.3d at 325 (quoting United States v. 

Gartmon, 146 F.3d 1015, 1021 (D.C. Cir. 1998)). Thus, 

a district court need only keep out evidence “if its 

unfairly prejudicial effect ‘substantially outweigh[s]’ its 

probative value.” Id. at 323.

In briefing before the District Court, Repak 

contended that his affair with Walter was “irrelevant to 

the charges in the Indictment or simply prejudicial.” 

JA77. In response, the Government explained that the 

affair “put[] [Walter’s] actions and testimony into 

context,” “squarely addresse[d] facts at issue, i.e., 

whether or not solicitations and receipt of items occurred 

as charged,” and impacted Walter’s credibility. JA152. 

The District Court ruled that, while prejudicial, evidence 

of the affair was also highly probative. JA15. According 

to the District Court, the affair was “relevant to the 

Government’s burden of showing Defendant’s mental 

state regarding the crimes charged.” JA15. As an 

example, the District Court observed that “witnesses will 

testify that solicitations by Defendant were made to 

benefit Walter because she was his paramour,” thus 

demonstrating a motive for certain solicitations. Id. It 

also accepted the Government’s argument that the affair 

would assist the jury in assessing Walter’s credibility. 

JA15–16.
35

Repak’s argument on appeal is two-fold but 

straightforward. He contends that evidence of his affair 

was not relevant and that the prejudice created by its 

admission substantially outweighed whatever probative 

value that evidence has. Repak’s arguments are

ultimately unpersuasive. The District Court reasonably 

exercised its discretion to admit the affair evidence. See 

United States v. Universal Rehab. Servs. (PA), Inc., 205 

F.3d 657, 665 (3d Cir. 2000) (“If judicial self-restraint is 

ever desirable, it is when a Rule 403 analysis of a trial 

court is reviewed by an appellate tribunal.” (quoting 

United States v. Long, 574 F.2d 761, 767 (3d Cir. 

1978))).

The Government elicited testimony from multiple 

JRA contractors regarding requests for items coming 

directly from Walter. See, e.g., JA327; JA374; JA384. 

Those contractors also testified that they would buy items 

for Walter at Repak’s request. See, e.g., JA327. One 

contractor affirmed that he had knowledge of the affair 

while the solicitations were occurring, and another knew 

that giving Walter items would make Repak happy. 

JA289–90; JA327. For her part, Walter admitted that she 

had a romantic relationship with Repak. JA406. She 

also testified that she would occasionally email Repak’s 

requests for items to JRA contractors. JA408. She stated 

that she would make these requests because of “both” her 

business and personal relationship with Repak. JA409. 

Finally, Repak himself admitted to the affair. JA514–15.
36

Given this legal and factual background, the 

evidence of Repak’s affair was relevant. See Fed. R. 

Evid. 401. For one, testimony of the affair tended to 

show that Repak possessed the requisite mens rea when 

obtaining items from the JRA contractors. More 

specifically, the evidence may have explained Repak’s 

motivation in making certain requests. See, e.g., JA409–

10 (Walter testifying that she asked Repak to get tickets 

to a Tony Bennett performance). Evidence of the affair 

may also have shown that Repak knew the items were 

given to Walter to please him and thereby garner 

contracts for the JRA contractors. See JA327 (stating 

that items were provided for Walter because she “was 

Mr. Repak’s assistant and with him constantly and was 

involved with all their projects the same”); cf. United 

States v. Scarfo, 850 F.2d 1015, 1020 (3d Cir. 1988)

(permitting admission of evidence “describing 

[witnesses’] relationship to the defendants . . . to 

illustrate the witnesses’ role in the [criminal acts]”). 

Second, the affair evidence assisted the jury in assessing 

Walter’s credibility. Her credibility was at issue when it 

came to her testimony about the requests she made for 

Repak, Repak’s views about the gratuities policy enacted 

by the JRA, and the reasons she was willing to help 

Repak make those requests. As we have unequivocally 

held, “evidence concerning a witness’s credibility is 

always relevant, because credibility is always at issue.” 

Green, 617 F.3d at 251. The affair evidence was 

unquestionably relevant.
37

While relevant, the affair evidence likely caused 

some prejudice to Repak. The record, however, fails to 

demonstrate that that prejudice was unfair or that it

substantially outweighed the evidence’s probative value. 

The affair evidence was hardly a main feature of the 

trial.5 The testimony outlined above constitutes the 

entirety of the testimony regarding the affair. In short, 

trial testimony regarding the affair was not belabored; it

simply advised the jury of the personal relationship 

between Repak and Walter for the permissible purposes 

mentioned above. 

Thus, given the probative value of the affair 

evidence and the limited nature of its prejudicial effect, 

the District Court did not abuse its discretion in admitting 

that evidence. See United States v. Lee, 612 F.3d 170, 

190 (3d Cir. 2010) (observing that district courts are 

owed “substantial deference . . . in weighing evidence 

under Rule 403”).

C

Repak next challenges the sufficiency of the trial 

evidence underlying his convictions. “We exercise 

 

5 Repak argues that comments about his affair made by

the Government attorney during closing arguments also 

prejudiced him. That argument is better framed as a 

claim of prosecutorial misconduct, and we address it 

below in that context.
38

plenary review over a district court’s grant or denial of a 

motion for judgment of acquittal based on the sufficiency 

of the evidence, applying the same standard as the district 

court.” Starnes, 583 F.3d at 206. “In reviewing a jury 

verdict for sufficiency of the evidence . . . [,] we must 

consider the evidence in the light most favorable to the 

government and affirm the judgment if there is 

substantial evidence from which any rational trier of fact 

could find guilt beyond a reasonable doubt.” United 

States v. Iglesias, 535 F.3d 150, 155 (3d Cir. 2008)

(internal quotation marks and citations omitted) (quoting 

United States v. Lore, 430 F.3d 190, 204 (3d Cir. 2005)). 

This standard is “highly deferential.” United States v. 

Caraballo-Rodriguez, 726 F.3d 418, 430 (3d Cir. 2013)

(en banc). We “must be ever vigilant . . . not to usurp the 

role of the jury by weighing credibility and assigning 

weight to the evidence, or by substituting [our] judgment 

for that of the jury.” Id. (alteration in original) (quoting 

United States v. Brodie, 403 F.3d 123, 133 (3d Cir. 

2005)).

1

Repak makes two arguments against his 

convictions on Counts 3 and 5, charging violations of the 

Hobbs Act, 18 U.S.C. § 1951. First, Repak contends that 

there is no evidence he received the roof and excavation 

services for his agreement to influence official acts. 

Second, Repak maintains that the award of JRA contracts 

is not an “official act” under § 1951 as interpreted by the 
39

Supreme Court in McDonnell v. United States, 136 S. Ct. 

2355 (2016). We conclude that the trial evidence was 

sufficient to permit a rational trier of fact to find Repak 

guilty of both counts beyond a reasonable doubt.

i

Repak’s contention that there is no evidence of an 

“agreement” to influence official JRA actions is wrong 

on the law and contrary to the record. When proving a 

violation of § 1951, the Government does “not have to 

show the defendant[] had an express agreement.” United 

States v. Bradley, 173 F.3d 225, 231 (3d Cir. 1999). 

“[T]he Government need only show that a public official 

has obtained a payment to which he was not entitled, 

knowing that the payment was made in return for official 

acts.” Evans, 504 U.S. at 268. Put differently, “it is 

sufficient if the public official understands that he is 

expected, as a result of the payment, to exercise 

particular kinds of influence or to do certain things 

connected with his office as specific opportunities arise.” 

Bradley, 173 F.3d at 231 (quoting jury instructions). The 

instructions the District Court provided to the jury here

mirrored the language from that case law: 

The government is not required to prove an 

explicit promise to perform the official acts 

in return for the payment. Passive 

acceptance of a benefit by a public official is 

a sufficient basis for this type of extortion if 
40

the official knows that he is being offered 

payment in exchange for his ability to do 

official acts.

JA657–58. Therefore, Repak’s contention that the 

Government failed to demonstrate an “agreement” is 

unpersuasive.

While the Government need not show an 

agreement, it does need to demonstrate Repak’s 

acceptance of the roof and excavating services knowing 

that they were given in exchange for his influencing the 

award of JRA contracts. Rarely will the sort of 

knowledge the Government charged Repak with be 

reflected in a written agreement, nor does the 

Government need to produce such a document. See 

Bradley, 173 F.3d at 231. Rather, the Government need 

only rely on circumstantial evidence. Id. at 232. The 

Government did so here.

At trial, JRA contractors testified to the “unspoken 

understanding” between themselves and Repak. JA333. 

Explaining why EADS provided Repak with free 

services, EADS employee Stephen Sewalk testified: “[I]f 

we didn’t [follow Repak’s instructions], I felt that we 

would lose work.” JA284. That view was based on more 

than intuition. Repak would tell Sewalk, “‘Hey, I’m 

reviewing some invoice here of yours,’ which [was] 

usually followed up with some type of request.” Id.; see 

also JA289 (recalling that Repak would threaten that he 
41

would find “someone else” who would be willing to 

fulfill his demands); JA301 (“Mr. Repak provided a lot 

of, I said innuendos, subtle things throughout

conversations. And then it would always be followed in 

a short period of time by either an instruction or request. 

. . . [W]ith him[,] [instructions and requests] were the 

same thing.”). L&M employee Rick McNulty similarly 

explained that providing free services and items to Repak 

was simply “part of doing business with the [JRA] and 

Mr. Repak.” JA311. He reached this conclusion 

following messages from Repak telling McNulty that 

Repak “need[ed]” certain items from L&M and followup calls from Repak to McNulty asking why items had 

not yet been provided. JA311, JA317. Putting a finer 

point on his testimony, McNulty stated that he knew that 

if he didn’t provide those services, “it would be a 

problem from a work aspect.” JA312.

As the old adage goes, “actions often speak louder 

than words.” Here, the actions of the JRA contractors 

spoke volumes about their understanding with Repak. 

EADS provided Repak with a new roof, bearing $3,000 

to $4,000 in costs. JA287–88; JA315–16. After 

receiving the new roof, Repak told Sewalk to bury EADS 

expenses in an invoice to the JRA. JA299–300. Sewalk 

testified that he knew his company would not get more 

work from the JRA if it required Repak to pay for his 

roof. JA289. Similarly, L&M provided Repak with 

excavating services for his son’s gym, at a cost of 
42

$17,500 to L&M. JA325–26. Echoing Sewalk’s

testimony, McNulty stated that when he asked Repak 

who he should invoice for the excavating services, Repak 

told him to “just bury it in invoices” to the JRA. JA326. 

This evidence was more than sufficient to show that 

Repak obtained the roof and excavating services, 

“knowing that the payment was made in return for 

official acts.” Evans, 504 U.S. at 268.

Viewing that evidence in the light most favorable 

to the Government, a rational jury could have convicted 

Repak of the Hobbs Act charges. See Bradley, 173 F.3d 

at 231 (observing that “knowing winks and nods” 

demonstrating a mutual understanding with a public 

official was sufficient for conviction under § 1951 

(quoting Evans, 504 U.S. at 274 (Kennedy, J., concurring 

in part and concurring in the judgment))).

ii

Repak’s second contention regarding Counts 3 and 

5, relying on McDonnell v. United States, is equally 

unpersuasive. 

In McDonnell, the Supreme Court vacated 

convictions under § 1951 because jury instructions in that 

case improperly defined “official act.” 136 S. Ct. at 

2373. Pursuant to § 1951, a criminal offense occurs 

when an individual “obstructs, delays, or affects 

commerce . . . by extortion,” with extortion defined as 
43

“the obtaining of property of another, with his consent, 

. . . under color of official right.” 18 U.S.C. § 1951(a), 

(b). The parties in McDonnell agreed that “extortion 

under color of official right” under § 1951 included the 

element of obtaining property knowing the property “was 

given in return for official action.” 136 S. Ct. at 2365. 

The parties further agreed that “official action” should be 

given the same meaning those words have in the federal 

bribery statute, 18 U.S.C. § 201(a)(3). Id. 

Section 201(a)(3) of the federal bribery statute 

defines an “official act” as “any decision or action on any 

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

which may at any time be pending, or which may by law 

be brought before any public official, in such official’s 

official capacity, or in such official’s place of trust or 

profit.” 18 U.S.C. § 201(a)(3). The Supreme Court held 

that proving an “official act” requires a two-part 

showing. McDonnell, 136 S. Ct. at 2368. 

“First, the Government must identify a ‘question, 

matter, cause, suit, proceeding or controversy’ that ‘may 

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

before a public official.” Id. (quoting 18 U.S.C. 

§ 201(a)(3)). The Supreme Court made two key 

clarifications as to this required showing. First, the Court 

defined a “question” or “matter” as “similar in nature to a 

cause, suit, proceeding, or controversy.” Id. at 2369. 

The Court further clarified that the “question” or 

“matter” must “involve a formal exercise of 
44

governmental power that is similar in nature to a lawsuit 

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

hearing before a committee.” Id. at 2372. Second, the 

Court observed that the “question” or “matter” must also 

be “something specific and focused that is ‘pending’ or 

‘may by law be brought.’” Id. It described a “question”

or “matter” that is “pending” as “something that is 

relatively circumscribed—the kind of thing that can be 

put on an agenda, tracked for progress, and then checked 

off as complete.” Id. at 2369.

The second part of the showing to prove an 

“official act” requires the Government to “demonstrate

that the public official made a decision or took an action 

‘on’ that question, matter, cause, suit, proceeding, or 

controversy, or agreed to do so.” Id. at 2368. Providing 

some contour to that requirement, the Court observed that 

“if a public official uses his official position to provide 

advice to another official, knowing or intending that such 

advice will form the basis for an ‘official act’ by another 

official, that too can qualify as a decision or action.” Id.

at 2370. By way of example, the Court noted that “a 

decision or action to initiate a research study” would 

sufficiently constitute a decision or action “on” a 

question or matter. Id.; cf. United States v. Sun-Diamond 

Growers of Cal., 526 U.S. 398, 407 (1999) (observing 

that the hosting of a championship sports team by the 

President of the United States would not constitute an 

“official act”).
45

As in McDonnell, the parties here agreed to 

instructions, read to the jury, which defined “extortion 

under color of official right” to mean “that a public 

official induced, obtained, accepted, or agreed to accept a 

payment to which he or she was not entitled, knowing 

that the payment was made in return for taking, 

withholding, or influencing official acts.” JA657 

(emphasis added). The instructions also required that the 

official acts be “pending before a government agency.” 

JA658. The parties do not dispute that the definition of 

“official acts” comes from § 201(a)(3) of the federal 

bribery statute.

Repak insists that the trial evidence of his 

facilitating the award of JRA contracts failed to 

demonstrate an “official act,” as defined in McDonnell, 

because that evidence did not demonstrate (1) a 

“question” or “matter” akin to “a lawsuit before a court, a 

determination before an agency, or a hearing before a 

committee” and (2) “something specific and focused that 

is ‘pending’ or ‘may by law be brought’ before a public 

official.” 136 S. Ct. at 2368, 2372.

Repak’s first McDonnell argument is off the mark. 

The awarding of a JRA contract is not only akin to an 

agency determination—it is an agency determination. 

The Supreme Court in McDonnell concluded that a 

“Revitalization Commission’s” allocation of grant money 

was not only a sufficiently “focused and concrete” matter 

but also “involve[d] a formal exercise of governmental 
46

power that is similar in nature to a lawsuit, administrative 

determination, or hearing.” Id. at 2370. As in 

McDonnell, a decision by the JRA—a governmental 

agency—to award money to contractors as part of its 

public mission to develop Johnstown’s infrastructure is 

undoubtedly the “formal exercise of governmental 

power.” Id. at 2372. It is, plainly, an agency 

determination. 

Repak’s second McDonnell argument, that the 

award of JRA contracts is not a “specific and focused 

[question or matter] that is ‘pending,’” is likewise 

unpersuasive. Id. In McDonnell, the Government argued 

that the focus of an event hosted by the defendant was

“economic development” and that “economic 

development” was sufficiently narrow under § 201(a)(3). 

Id. 2368–69. The Supreme Court in McDonnell, 

however, concluded that “economic development” is not 

specific and focused. Id. at 2374. In doing so, the Court 

reasoned that “economic development is not naturally 

described as a matter ‘pending’ . . . any more than 

‘justice’ is pending or may be brought by law before a 

judge, or ‘national security’ is pending or may be brought 

by law before an officer of the Armed Forces.” Id. at 

2369. It noted, though, that a “Revitalization 

Commission’s” decision to allocate grant money would 

be a “focused and concrete” matter. Id. at 2370. 

In the language of McDonnell, the award of JRA 

contracts is “specific and focused.” It is a concrete 
47

determination made by the JRA’s Board of Directors and 

“the kind of thing that can be put on an agenda, tracked 

for progress, and then checked off as complete.” Id. at 

2369. It is “something within the specific duties of an 

official’s position—the function conferred by the 

authority of his office.” Id. The JRA and its Board of 

Directors were undisputedly tasked with the 

responsibility of awarding contracts. The JRA received 

federal funds and, among other obligations, was 

“responsible to distribute those funds, . . . to provide for 

the engineering, [and] procurement of construction” 

related to redevelopment projects. JA491. As part of 

that process, and in his capacity as JRA Executive 

Director, Repak made recommendations to the JRA 

Board of Directors as to which contractors should be 

used on specific projects. JA507. The assigning of 

contractors to JRA projects can thus “naturally [be]

described” as a matter “pending” before the JRA, unlike 

the nebulous issue of “economic development” in 

McDonnell. 136 S. Ct. at 2369. 

Implicit in both of Repak’s arguments under 

McDonnell is the suggestion that the facilitation of the 

award of those contracts is not a decision or action “on” a 

question or matter. The Supreme Court held in 

McDonnell that an action “on” a question or matter 

includes a public official’s use of his position “to exert 

pressure on another official or provide advice, knowing 

or intending [that] such advice . . . form the basis for an 
48

‘official act.’” Id. at 2371. As demonstrated by the 

record here, Repak had the power to, and indeed did,

make recommendations to the JRA as to the contractors it 

hired for projects. JA507. The evidence was sufficient 

for the jury to conclude that he accepted the roof and 

excavating services knowing that he was to use his 

power, i.e., the ability to provide advice, to influence the 

JRA’s awarding of contracts.

Therefore, the facilitation of the award of JRA 

contracts is an “official act” as defined by McDonnell.

Evidence of Repak’s receipt of items knowing he was to 

facilitate the award of those contracts provided a 

sufficient basis for a rational trier of fact to convict him

of the Hobbs Act charges under Counts 3 and 5. 

2

As to Counts 4 and 6 related to 18 U.S.C. § 666, 

Repak argues that the trial evidence insufficiently 

demonstrated that he possessed the “corrupt” intent to be 

influenced by the roof and excavating services he 

received. Again, Repak is incorrect. A rational trier of 

fact could find the requisite intent beyond a reasonable 

doubt.

As outlined above, the JRA contractors testified to 

an unspoken but certain understanding between 

themselves and Repak under which they would provide

Repak with items of value (usually items he specifically 
49

requested) and Repak would influence the award of JRA 

contracts. The statements attributed to Repak at trial 

repeatedly suggested as much, and his continued receipt 

of items from those contractors further demonstrated that 

he intended for such items—the costs for which he 

instructed be buried in JRA invoices—to influence the 

award of JRA contracts to those contractors. In sum, 

when viewed in the light most favorable to the 

Government, the record demonstrates more than enough 

evidence for a rational trier of fact to conclude, beyond a 

reasonable doubt, that Repak possessed the requisite 

intent to convict him on the § 666 charges. Cf. United 

States v. Andrews, 681 F.3d 509, 529–30 (3d Cir. 2012) 

(concluding that the trial evidence sufficiently 

demonstrated the defendant’s intent to have a public 

official influence government action under § 666).

D

Repak also argues that the District Court provided 

the jury with erroneous instructions. More precisely, he 

contends that the instructions related to the Hobbs Act 

(Counts 3 and 5) and the federal program bribery statute 

(Counts 4 and 6) failed to properly advise the jury of the 

elements of the offenses charged. The parties agree that 

plain error review applies. See United States v. 

Zehrbach, 47 F.3d 1252, 1260 & n.6 (3d Cir. 1995)

(“Where a party has not made a clear, specific objection 

to the charge that he alleges is erroneous at trial, he 

waives the issue on appeal ‘unless the error was so 
50

fundamental and highly prejudicial as to constitute plain 

error.’” (quoting Bennis v. Gable, 823 F.2d 723, 727 (3d 

Cir. 1987))). “[B]efore an appellate court can correct an 

error not raised at trial, there must be (1) ‘error,’ (2) that 

is ‘plain,’ and (3) that ‘affects substantial rights.’” 

Johnson v. United States, 520 U.S. 461, 466–67 (1997) 

(quoting United States v. Olano, 507 U.S. 725, 732

(1993)). “[A]n error affects substantial rights when ‘it 

affected the outcome of the [lower] court proceedings.’” 

Gov’t of the V.I. v. Mills, 821 F.3d 448, 456 (3d Cir. 

2016) (second alteration in original) (quoting United 

States v. Marcus, 560 U.S. 258, 262 (2010)). “It is a rare 

case in which an improper instruction will justify reversal 

of a criminal conviction when no objection has been 

made in the trial court.” United States v. DiSalvo, 34 

F.3d 1204, 1215 (3d Cir. 1994) (quoting Henderson v. 

Kibbe, 431 U.S. 145, 154 (1977)). 

Although Repak fails to state the underlying legal 

basis for his jury instruction challenge, we have held: 

Due process requires that the Government 

prove every element of the charged offense 

beyond a reasonable doubt. Accordingly, 

jury instructions that relieve the Government 

of this burden violate a defendant’s due 

process rights. Carella v. California, 491 

U.S. 263, 265 (1989). The inquiry is 

whether the court’s instruction constituted a 

mandatory presumption by “directly 
51

foreclos[ing] independent jury consideration 

of whether the facts proved established 

certain elements of the offense with which 

[the defendant] was charged.” Id. at 266.

United States v. Korey, 472 F.3d 89, 93 (3d Cir. 2007)

(citation omitted). In making this inquiry, the “[j]ury 

instructions must be read as a whole.” United States v. 

Flores, 454 F.3d 149, 157 (3d Cir. 2006) (quoting EEOC 

v. Del. Dep’t of Health & Soc. Servs., 865 F.2d 1408, 

1418 (3d Cir. 1989)). Jury instructions satisfy due 

process if “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) (quoting

Zehrbach, 47 F.3d at 1264).

1

Repak first challenges the instructions associated 

with Counts 3 and 5, which charged violations of 18 

U.S.C. § 1951. In relevant part, the jury instructions 

read: 

Count 3 of the indictment charges that . . . 

Repak[] did knowingly obstruct, delay, and 

affect commerce and the movement of 

articles and commodities in commerce by 

extortion, as those terms are defined in [18 

U.S.C. § 1951]. That is, [Repak], while 

executive director of the [JRA] engaged in a 
52

course of conduct whereby [he] solicited and 

obtained from [EADS], with [EADS’] 

consent, a new roof on the personal 

residence of [Repak], . . . which was not due 

to him or his office and to which he was not 

entitled, in exchange for [his] official action 

and influence as the executive director of the 

[JRA], to facilitate the award of [JRA] 

contracting work to [EADS], all under color 

of official right and all in violation of [18 

U.S.C. § 1951].

. . .

Count 5 of the indictment charges that . . . 

Repak did knowingly obstruct, delay, and 

affect commerce and the movement of 

articles and commodities in commerce by 

extortion, as those terms are defined in [18 

U.S.C. § 1951]. That is, [Repak], while 

executive director of the [JRA] engaged in a 

course of conduct whereby [he] solicited and 

obtained from [L&M], with [L&M’s] 

consent, building demolition and grading 

services at Evolution Gym, . . . which was 

not due to him or his office and to which he 

was not entitled, in exchange for [his] 

official action and influence as the executive 

director of the [JRA], to facilitate the award 

of [JRA] contracting work to [L&M], all 
53

under color of official right and all in 

violation of [18 U.S.C. § 1951].

JA652–55. The instructions then state that an element of 

§ 1951 is that the defendant did “knowingly and willfully 

by extortion under color of official right” obtain property 

from the JRA contractors. JA656. The instructions go 

on to define “extortion under color of official right,” 

defining the phrase to mean “that a public official 

induced, obtained, accepted, or agreed to accept a 

payment to which he or she was not entitled, knowing 

that the payment was made in return for taking, 

withholding, or influencing official acts.” JA657.

Repak advances two arguments regarding those 

instructions. First, he contends that the jury instructions 

allowed the jury to convict him for any “official acts,” 

without limiting the focus to only his facilitation of the 

award of JRA contracts. Second, he argues that even if 

the indictment did not broaden the allowable “official 

acts” of which he could be convicted, the District Court 

failed to inform the jury that it must determine whether 

the facilitation of the award of JRA contracts is an 

official act. Neither argument carries the day.

As to Repak’s first argument, he fails to identify 

any other “official act” on which he could have been 

convicted, and, in doing so, fails to explain how he could 

have been convicted of “official acts” other than his 

facilitation of the award of JRA contracts. And review of 
54

the record reveals no other “official act” evidence 

presented by the Government. Indeed, the Government’s 

only theory at trial was that Repak accepted the roof and 

excavating services knowing that he was expected to 

facilitate the award of JRA contracts to EADS and L&M. 

Repak’s second challenge to the § 1951 

instructions fares no better. The District Court’s 

instructions charged the jury with how it might find that 

Repak committed “extortion under color of official right” 

and defined that extortion to include the “influencing [of] 

official acts.” JA657. The instructions go even further 

by identifying the “official act” as “facilitat[ing] the 

award of [JRA] contracting work.” JA652–55. Thus, 

contrary to Repak’s contention, the instructions were 

sufficient in requiring the jury to determine whether the 

facilitation of the award of JRA contracts constituted an 

“official act.”

Reading the jury instructions as a whole, we 

believe those instructions “fairly and adequately 

submit[ed]” to the jury the issue of whether facilitating 

the award of JRA contracts constituted an “official act.” 

Thayer, 201 F.3d at 221.

2

With regard to Counts 4 and 6, which charged 

violations of 18 U.S.C. § 666, Repak again argues that 

the jury instructions broadened the conduct that he could 
55

be convicted of, beyond just the facilitation of the award 

of JRA contracts. He specifically takes issue with the 

following language from the instructions: “The fourth 

element the government must prove beyond a reasonable 

doubt is that [Repak] accepted or agreed to accept, or 

solicited something of value corruptly, and with the 

intent to be influenced or rewarded in connection with 

some business or transaction of the [JRA].” JA662

(emphasis added). According to Repak, that instruction 

permitted the jury to convict him of influencing any JRA 

“business or transaction,” not merely the award of JRA 

contracts. 

Reading those instructions as a whole, we 

conclude that the instructions did not violate Repak’s due 

process rights. In summarizing the charges against 

Repak, the District Court stated:

Count 4 of the indictment charges that . . . 

[Repak] did corruptly solicit, demand, 

accept, and agree to accept something of 

value, intending to be influenced and 

rewarded in connection with the business 

transaction and series of transactions of the 

[JRA] . . . . That is, [Repak] solicited and 

obtained a new roof on his personal 

residence in exchange for his official actions 

and influence as the executive director of the 

[JRA], to facilitate the award of contracting 

work to [EADS].
56

. . .

Count 6 of the indictment charges that . . . 

[Repak] did corruptly solicit, demand, 

accept, and agree to accept something of 

value, intending to be influenced and 

rewarded in connection with the business 

transaction and series of transactions of the 

[JRA] . . . . That is, [Repak] solicited and 

obtained building demolition and grading 

services at [his son’s gym] in exchange for 

his official actions and influence as the 

executive director of the [JRA], to facilitate 

the award of contracting work to [L&M].

JA653–56. Those instructions thus specifically identify 

the “business or transaction” the Government charged 

Repak with influencing: “the award of [JRA] contracting 

work.” Id. Moreover, as with the charges under § 1951, 

Repak fails to identify any other JRA “business or 

transactions” in the trial evidence that could have 

supported a conviction. Again, the Government’s only 

theory at trial was that Repak received a roof and 

excavating services from EADS and L&M, respectively,

to facilitate the grant of JRA contracts. The instructions

related to § 666, therefore, “as a whole fairly and 

adequately submit[ed] the issues in the case to the jury.” 

Thayer, 201 F.3d at 221 (quoting Zehrbach, 47 F.3d at 

1264). 
57

E

Repak also asserts that reversal is called for 

because the indictment charging him was constructively 

amended. “We exercise plenary review in determining 

whether there was a constructive amendment of the 

indictment,” but, “inasmuch as [Repak] did not raise the 

constructive amendment . . . in the district court we . . .

consider [the issue] on a plain error basis.” United States 

v. Daraio, 445 F.3d 253, 259 (3d Cir. 2006). 

In United States v. Daraio, we described the 

circumstances under which constructive amendment of 

an indictment occurs: 

An indictment is constructively amended 

when, in the absence of a formal 

amendment, the evidence and jury 

instructions at trial modify essential terms of 

the charged offense in such a way that there 

is a substantial likelihood that the jury may 

have convicted the defendant for an offense 

differing from the offense the indictment 

returned by the grand jury actually charged.

Id. at 259–60. “The key inquiry is whether the defendant 

was convicted of the same conduct for which he was 

indicted.” Id. at 260 (quoting United States v. RoblesVertiz, 155 F.3d 725, 729 (5th Cir. 1998)). “If a 

defendant is convicted of the same offense that was 
58

charged in the indictment, there is no constructive 

amendment.” United States v. Vosburgh, 602 F.3d 512, 

532 (3d Cir. 2010).

Repackaging his earlier challenge to his jury 

instructions, Repak contends that his indictment was 

constructively amended such that he could have been 

convicted for facilitating any “official act” under the 

Hobbs Act, Counts 3 and 5, and influencing any JRA 

“business or transaction” under the federal program 

bribery statute, Counts 4 and 6. Once again, Repak is 

wrong. The jury convicted him for the same conduct for 

which he was indicted.

In Daraio, we held that no constructive 

amendment of the indictment had occurred where the 

district court provided the jury with thorough instructions

that tracked the language in the indictment. 445 F.3d at 

261. The indictment in Daraio charged the defendant 

with a specific act of tax evasion, but the Government 

also introduced evidence of prior tax non-compliance. 

Id. at 260. We nevertheless concluded that “the district 

court’s instructions ensured that the jury would convict 

[the defendant], if at all, for a crime based on conduct 

charged in the indictment.” Id. We based our decision 

on the “basic tenet of our jurisprudence that a jury is 

presumed to have followed the instructions the court 

gave it.” Id. (quoting United States v. Givan, 320 F.3d 

452, 462 (3d Cir. 2003)). We also highlighted the district 

court’s limiting instructions, which instructed the jury 
59

that those other actions of tax non-compliance were not 

charged in the indictment and could not be the basis for a 

conviction. Id. at 261. For those reasons, we concluded:

“[T]he district court obviated the possibility of the 

indictment being constructively amended by issuing 

accurate and thorough jury instructions precluding the 

jury from convicting [the defendant] for any conduct 

other than that which the indictment charged.” Id.

Like in Daraio, Repak was convicted of the same 

conduct for which he was charged. First, as with his 

challenge to the jury instructions, Repak points to no 

other “official act” or “transaction” for which he could 

have been convicted. Second, as part of its jury charge, 

the District Court read each count in the indictment, 

which—as we noted above—identified the specific 

“official act” or “transaction” related to each count, i.e.,

the facilitation of “the award of [JRA] contracting work.” 

JA651–56. Third, the District Court also instructed the 

jury multiple times that it was not to consider evidence of 

Repak’s uncharged solicitations for any reason other than 

to prove his mental state as to the crimes charged. We 

presume, as we must, that the jury followed the District 

Court’s instructions. Daraio, 445 F.3d at 260. We 

therefore conclude that the District Court “thoroughly 

and accurately instructed the jury on the basic elements 

of [Repak’s charged offenses] and focused the jury’s 

attention on the conduct that the indictment charged.” Id.

at 260–61. No constructive amendment of the indictment 
60

occurred.

F

Finally, Repak raises a due process claim based on 

alleged prosecutorial misconduct during closing 

arguments. Because Repak did not preserve this claim

through objections at trial, we review for plain error. See 

Mills, 821 F.3d at 456. 

The Fifth Amendment’s Due Process Clause 

provides defendants with a right to a fair trial, which 

includes protection from prosecutorial misconduct. See 

id. “When confronted with a claim that a prosecutor’s 

remarks violated this right, we first determine whether 

those remarks constituted misconduct.” Id. “If so, we 

proceed to determine whether that misconduct ‘so 

infected the trial with unfairness as to make the resulting 

conviction a denial of due process . . . .’” Id. (quoting 

Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). 

“Not all prosecutorial misconduct violates this right.” 

United States v. Liburd, 607 F.3d 339, 344 (3d Cir. 

2010). Rather, we examine “the prosecutor’s offensive 

actions in context and in light of the entire trial, assessing 

the severity of the conduct, the effect of the curative 

instructions, and the quantum of evidence against the 

defendant.” Lee, 612 F.3d at 194 (quoting Moore v. 

Morton, 255 F.3d 95, 107 (3d Cir. 2001)). “[A] criminal 

conviction is not to be lightly overturned on the basis of a 

prosecutor’s comments standing alone, for the statements 
61

or conduct must be viewed in context; only by so doing 

can it be determined whether the prosecutor’s conduct 

affected the fairness of the trial.” Id. (alteration in 

original) (quoting United States v. Young, 470 U.S. 1, 11 

(1985)); see also Greer v. Miller, 483 U.S. 756, 765 

(1987) (“To constitute a due process violation, the 

prosecutorial misconduct must be of sufficient 

significance to result in the denial of the defendant’s right 

to a fair trial.” (internal quotations omitted)). 

Repak complains that four statements made by the 

Government attorney in her closing argument constituted

prosecutorial misconduct producing an unfair trial. We 

are not persuaded that any reversible error occurred. 

1

Repak first points to statements regarding his affair 

with Walter. The Government attorney argued, “Not 

only did Mr. Repak have Ms. Walter as his mistress, but 

he also dictated e-mails to her where in those e-mails he 

instructed what he wanted.” JA603. The prosecutor also 

stated:

Speaking about how the rules don’t matter—

and by no means, am I or this Court the 

morality police, but it goes to show that the 

lines are blurred easily and rules are not 

followed easily with Mr. Repak. He 

engaged in an extramarital affair with his 
62

assistant for years. His explanation was 

well, yes, it happened, but it was on and off. 

So I guess we can assume from that, I’m 

faithful to my wife. I’m not faithful to my 

wife. I’m faithful to my wife. I’m not 

faithful to my wife. Yet another example of 

the blurring of what is permissible, even in 

his personal life that you heard about. 

JA 609. This line of argument was inappropriate, 

irrelevant to any issue at trial, and unnecessarily 

prejudicial. No reasonable person could have heard these 

words and not have considered them a direct reference to 

Repak’s marital infidelity. As such, the prosecutor’s 

suggestion was that Repak was dishonest. 

Nonetheless, we do not believe that these 

comments so tainted the trial as to violate Repak’s Fifth 

Amendment rights. The District Court instructed the jury 

that the “statements and arguments of the lawyers for the 

parties” were not evidence the jury could consider. 

JA638; see also United States v. Berrios, 676 F.3d 118, 

136 (3d Cir. 2012) (“These instructions were likewise an 

adequate response to the possibility that the improper 

commentary would lead the jury astray in its 

deliberations.”). We again presume the jury followed the

instructions they were given. See Daraio, 445 F.3d at 

260. Also, on rebuttal, the Government attorney 

retreated from her previous statements and instead 
63

refocused the jury on the affair’s relevance in explaining 

both why Repak may have been asking for certain items 

and why Walter may have been involved in making 

solicitations. JA629–30. Finally, as we observed 

regarding Repak’s challenge to the sufficiency of the 

evidence, “the jury was presented with ample evidence 

on which it could convict” Repak of the charged 

offenses. Berrios, 676 F.3d at 136. Considering the 

entire record, and taking into account the context in 

which the comments regarding Repak’s affair were

made, the prosecutor’s improper remarks do not rise to 

the level of misconduct affecting the outcome of the trial.

2

Repak next states that the Government attorney 

referred during her closing to facts not in evidence. The 

Government planned to introduce testimony from one of 

Repak’s employees, Debbie Kerr, regarding her 

involvement with Repak’s solicitations. JA241–42. One 

witness testified that Kerr had been the JRA’s secretary 

but was unavailable to testify because of a sudden 

hospitalization. JA431–32, JA447–48. Repak testified 

that Kerr “would initiate the calls to . . . vendors,”

making requests for food items such as lunch trays. 

JA507–08. During closing arguments, the Government 

attorney remarked:

You will recall [Repak] testified and said, 

Kerr, the receptionist over at the JRA, would 
64

call up and get contractors to deliver food 

trays. Kerr was going to be a government 

witness, who unfortunately, as a result of a 

sensitive medical issue . . . couldn’t testify.

And Mr. Repak comes in here and tells you 

that Kerr would call and solicit things from 

contractors to have food brought over to the 

JRA. 

JA609–10. 

Repak’s argument that this statement constituted 

prosecutorial misconduct is baseless. Both the fact that 

Kerr would have been a government witness if not for 

her medical issue and Repak’s testimony regarding her 

actions were already a part of the record. JA447–48; 

JA507–08. Responding to Repak’s testimony, the 

prosecutor at most contextualized the fact that Repak had 

attempted to shift the responsibility for certain

solicitations to someone who did not testify. See Fahy v. 

Horn, 516 F.3d 169, 204 (3d Cir. 2008) (a prosecutor 

may attack a defendant’s credibility by “point[ing] out 

the inconsistencies” in his testimony). That was fair 

comment, simply noting the self-serving nature of the

defendant’s testimony. It did not come close to

prosecutorial misconduct. See Berger v. United States, 

295 U.S. 78, 88 (1935) (noting that a prosecutor “may 

prosecute with earnestness and vigor-indeed, he should 

do so”).
65

3

Repak argues that the Government attorney 

improperly expressed her personal opinion regarding his 

guilt. The expression of a prosecutor’s personal opinion 

about the guilt of a defendant creates a risk that the jury 

will “trust the Government’s judgment rather than its 

own view of the evidence.” United States v. Young, 470 

U.S. 1, 18–19 (1985). In relevant part, the prosecutor

stated: “We clearly, without a doubt, met what we 

need[ed] to prove beyond a reasonable doubt to you.” 

JA629. Repak’s argument about this comment is 

unavailing.

As an initial matter, the attorney’s statement 

cannot be fairly characterized as a “personal” opinion. 

The attorney simply stated, using the first person plural,

that the Government considered its burden of proof to 

have been met. See United States v. Sherrill, 388 F.3d 

535, 538 (6th Cir. 2004) (holding that the statement, “that 

man is guilty,” was not improper because phrase was 

prefaced by “the government submits to you” (internal 

quotation marks omitted)); see also United States v. 

Werme, 939 F.2d 108, 117 (3d Cir. 1991) (“The 

prosecutor is entitled to considerable latitude in 

summation to argue the evidence and any reasonable 

inferences that can be drawn from that evidence.”); cf.

United States v. Andujar-Basco, 488 F.3d 549, 560–61

(1st Cir. 2007) (observing that prosecutor’s statement 

that “I have proven [the defendant’s guilt], absolutely,” 
66

was improper but did not necessitate a new trial).

Moreover, focusing on the statement in context, we 

conclude that the prosecutor was responding to defense 

counsel’s argument that the Government had failed to 

show certain elements of the charged offenses. See

JA628–29. The prosecutor merely replied that the 

Government had put forth evidence to satisfy those 

elements. JA629. Thus, at best, “[t]he statement was

merely an alternative—albeit less than desirable—form 

of arguing to the jury that the evidence adduced [as to 

those elements] proved [Repak’s] guilt beyond a 

reasonable doubt.” United States v. Pupo, 841 F.2d 

1235, 1240 (4th Cir. 1988) (en banc); see also United 

States v. Fischbach & Moore, Inc., 750 F.2d 1183, 1194 

(3d Cir. 1984) (“By tying his remarks to evidence on the 

record, the prosecutor’s remarks were not prejudicial.”

(citation omitted)). The Government attorney’s 

statement was not an impermissible personal expression 

of Repak’s guilt. 

4

Finally, Repak takes issue with the following 

statement by the Government attorney:

In closing the defense talked about, Well, 

thank you. Look what has happened to 

Johnstown, because now with Mr. Repak not 

here anymore, . . . Johnstown is now just 

going to go away. 
67

Well remember, three things even had to be 

put in place before he even left [the JRA] 

because of the [way] he was carrying on 

business. . . . I ask you to convict him on 

this, and that is the best thank you that 

Johnstown can receive. 

JA632. Repak contends the Government attorney 

improperly asked the jury to send a message to the 

community by convicting him. Although we consider the 

prosecutor’s “thank you” comment to have been, at least, 

an unnecessary rhetorical flourish, it was not 

prosecutorial misconduct.

“There is no per se rule against invitations to a jury 

to ‘send a message.’” United States v. Riley, 621 F.3d 

312, 339 (3d Cir. 2010) (quoting Greenleaf v. Garlock, 

Inc., 174 F.3d 352, 364 n. 9 (3d Cir. 1999)). In the 

context of a “send the message” comment, we have 

observed that “[t]he type of counsel misconduct that 

warrants granting a new trial is not generally a single 

isolated inappropriate comment, but rather repeated 

conduct.” Id. The Government attorney here acted in 

response to defense counsel’s suggestion that the jury 

should thank Repak for what he had done for Johnstown, 

see JA626 (“[Repak] was one of the best in the state at 

getting funds. You heard where it is now.”), so “the 

prosecution was only meeting the defense on a level of 

the defense’s own choosing,” United States v. Lore, 430 

F.3d 190, 214 (3d Cir. 2005) (quoting United States v. 
68

LaSorsa, 480 F.2d 522, 526 (2d Cir. 1973)). Given the 

lack of a per se rule prohibiting this type of comment, the 

isolated nature of the comment, and defense counsel’s

invitation to such comment, the prosecutor’s remark was 

innocuous.

IV

For the reasons stated, we will affirm the District 

Court’s judgment of conviction and sentence.