U.S. v. Bryant

655 F.3d 232

272 Ed. Law Rep. 755

UNITED STATES of America

v.Wayne R. BRYANT, Appellant (09–3243)R. Michael Gallagher, Appellant (09–3275).

Nos. 09–3243

09–3275.

United States Court of Appeals, Third Circuit.

Argued March 8, 2011.Filed: Aug. 25, 2011.

Lisa A. Mathewson, Esquire (Argued), Philadelphia, PA, Carl D. Poplar, Esquire, Cherry Hill, NJ, for Appellant, Wayne R. Bryant.Jeremy D. Frey, Esquire (Argued), Pepper Hamilton, Philadelphia, PA, Ralph A. Jacobs, Esquire (Argued), Jacobs & Singer, Philadelphia, PA, for Appellant, R. Michael Gallagher.Paul J. Fishman, United States Attorney, Mark E. Coyne, Esquire, Office of United States Attorney, Newark, NJ, Norm Gross, Esquire (Argued), Office of United States Attorney, Camden, NJ, for Appellee.Before: SCIRICA, AMBRO, and VANASKIE, Circuit Judges.

OPINION OF THE COURT

AMBRO, Circuit Judge.

This case involves the federal crimes of honest services fraud, mail fraud, and bribery. Appellants Wayne Bryant and R. Michael Gallagher were charged with six counts of honest services fraud, in violation of 18 U.S.C. §§ 1341, 1343 and 1346 (the “honest services fraud counts”), and one count each of bribery in connection with a state agency that receives federal funds, in violation of 18 U.S.C. § 666(a) (the “bribery counts”), all in connection with a scheme to defraud the citizens of the State of New Jersey of Bryant's honest services as a State Senator. Counts 9–13 charged Bryant with mail fraud, in violation of 18 U.S.C. § 1341, in connection with a second scheme involving his state pension application. A jury convicted Bryant on all counts and Gallagher on all counts but one, which dealt with the mailing of Bryant's 2003 Financial Disclosure statement. Their sentences included imprisonment—48 months for Bryant and 18 months for Gallagher—and joint restitution in the amount of $113,167. For the reasons that follow, we affirm their convictions and the restitution order.

I. Background

Gallagher was formerly Dean of the School of Osteopathic Medicine (“SOM”) of the University of Medicine and Dentistry of New Jersey (“UMDNJ”). Bryant, as noted, was a New Jersey State Senator. They were indicted in 2007. The charges stemmed from an alleged quid pro quo arrangement in which Gallagher gave Bryant a “low-show” job at SOM (meaning he provided only minimal or nominal services) as a “Program Support Coordinator,” in which position he received an annual salary of $35,000 (and a $5,000 bonus), in exchange for Bryant's efforts as Chairman of the Senate Appropriations Committee to funnel State funding to SOM. The quo was a “success”: during Bryant's tenure at SOM, the institution gained an additional $10 million in funding over three years. Based on that same scheme, Bryant and Gallagher were also charged under the federal bribery statute—Bryant for corruptly soliciting and demanding the SOM salary and Gallagher for corruptly giving the salary.

In a second scheme, involving only Bryant, the Government alleged that he also attempted to use a “no-show” job (meaning he personally provided no services at all) as an attorney for the Gloucester County Board of Social Services (the “Social Services Board”) to increase his pension benefits. Specifically, the Government introduced evidence at trial showing that Bryant falsely reported that he had worked numerous hours providing legal services to the Social Services Board when he had not provided those services at all but had delegated his work to associates at his private law firm. In other words, Bryant claimed pensionable time credit for work he did not do. In New Jersey, the amount of pension benefits for which a public servant is eligible depends on the number of public sector jobs held. Thus, by accumulating public sector jobs, but not actually performing the duties commensurate with the positions, the Government argued that Bryant fraudulently inflated his pension eligibility.

After Appellants' convictions in November 2008, the District Court denied their motions for a judgment of acquittal or a new trial and this appeal followed. The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291.

Appellants challenge their convictions on the following grounds: they argue that the Government violated their due process rights by interfering with their access to potential witnesses in the pretrial phase of the case; that the evidence of honest services fraud and bribery was insufficient; and that the jury instructions on both honest services fraud and bribery were defective. Bryant challenges the sufficiency of the evidence that he committed mail fraud in connection with the pension scheme. He also claims that he is entitled to a judgment of acquittal or a new trial on the pension fraud counts because the District Court improperly allowed a lay witness to testify about the law. Lastly, both Bryant and Gallagher challenge the order of restitution. We consider each argument in turn.

II. DiscussionA. The Prosecutorial Misconduct Claim

During its investigation of Appellants, the Government issued grand jury subpoenas to potential witnesses with the following language placed on the front of each subpoena:

Disclosure of the nature and existence of this subpoena could obstruct and impede a criminal investigation into alleged violations of federal law. Therefore, the United States Attorney requests that you do not disclose the existence of this subpoena.

Appellants argued to the District Court that this language, and the Government's requests during the grand jury proceedings that witnesses voluntarily not disclose “any matters” that occur during those proceedings, ¹ interfered with the defense's access to witnesses. They claim that this violated due process and Federal Rule of Criminal Procedure 6(e)(2)(A), ² which prohibits the Government from imposing an obligation of secrecy on witnesses. The District Court denied their pretrial motion to dismiss the indictment on those grounds. Instead, it ordered the Government to write to the witnesses and inform them that they were under no legal obligation to keep the subpoena secret.

On appeal, Appellants again argue that the Government's conduct—including both the subpoena language and its requests to witnesses to preserve the secrecy of the proceeding—violated Rule 6(e)(2)(A) and due process. They claim that the Government's actions restricted the “free choice” of potential witnesses to speak to defense counsel and effectively imposed an obligation of secrecy on those witnesses. We disagree.

We review a district court's decision regarding a motion to dismiss an indictment because of prosecutorial misconduct for abuse of discretion. See United States v. Lee, 612 F.3d 170, 193 (3d Cir.2010). Generally, because witnesses “belong” neither to the defense nor to the prosecution, both must have equal access to witnesses before trial. Kines v. Butterworth, 669 F.2d 6, 9 (1st Cir.1981); Callahan v. United States, 371 F.2d 658, 660 (9th Cir.1967). If the prosecution impermissibly interferes with the defense's access to a witness during a criminal trial, that conduct violates due process insofar as it undermines the fundamental fairness of the proceeding. Kines, 669 F.2d at 9 (collecting cases). In connection with a grand jury proceeding, Rule 6(e)(2) also provides that the Government may not impose an obligation of secrecy on a witness absent limited exceptions, none of which applies here.

However, there is an important difference between requesting nondisclosure and discretion on the part of witnesses and artificially restricting defense counsel's access to witnesses by, for example, instructing the latter not to communicate with the former. Merely requesting that witnesses practice discretion does not violate a defendant's due process rights. See United States v. Agostino, 132 F.3d 1183, 1191–92 (7th Cir.1997). Here, the record demonstrates that the Government requested, but never required, witnesses not to disclose the subpoena or the grand jury proceedings. Aside from those requests, it took no affirmative steps to restrict or stop witnesses from conferring with the defense.

Appellants argue that the language, emblazoned on the subpoena, gave an appearance of a judicial imprimatur that suggested to witnesses they were legally obligated to comply with the Government's secrecy request. Certainly, many forthright citizens would comply with such a request, given the context in which it was made. However, we will not say what occurred here imposed an obligation of secrecy. Compareid. at 1192 (holding that prosecutor's mere request that witness not discuss his testimony with defense counsel, while acknowledging his right to do so, did not constitute a due process violation), with In re Grand Jury Proceedings (Appeal of Diamante), 814 F.2d 61, 68–70 (1st Cir.1987) (concluding that a subpoena instructing witnesses “not to disclose the existence of this subpoena or the fact of your compliance for a period of 90 days from the date of the subpoena” impermissibly conveyed that witnesses were legally obligated to remain silent).

Nor do we think that the Government's actions infected the fairness of the proceeding. Notably, Appellants did not identify to the District Court (nor do they now) any witnesses who claim that they would have spoken to the defense but were deterred from doing so because of the Government's nondisclosure requests. Rather, those witnesses who declined to speak with the defense did so on the advice of counsel.³ But “[n]o right of a defendant is violated when a potential witness freely chooses not to talk; a witness may of his own free will refuse to be interviewed by either the prosecution or the defense.” Kines, 669 F.2d at 9; see also United States ex rel. Trantino v. Hatrack, 408 F.Supp. 476, 481 (D.N.J.1976) (“[W]hile it is true that a witness is not to be prevented from speaking to the defense by the prosecution, it is equally true that...