United States v. Hird

913 F.3d 332

UNITED STATES of America

v.William HIRD, Appellant at No. 14-4754

United States of America

v.Thomasine Tynes, Appellant at No. 14-4804

United States of America

v.Robert Mulgrew, Appellant at No. 14-4812

United States of America

v.Michael Lowry, Appellant at No. 15-1344

United States of America

v.Willie Singletary, Appellant at No. 15-1739

United States of America

v.Henry P. Alfano, aka Ed, aka Eddie, Henry P. Alfano, Appellant at No. 15-3765

Nos. 14-4754

14-4804

14-4812

15-1344

15-1739

15-3765

United States Court of Appeals, Third Circuit.

Argued October 23, 2017

Opinion Filed: January 18, 2019

Angela Halim, Halim Drossner, 1528 Walnut Street, Suite 1501, Philadelphia, PA 19102, Gregory J. Pagano, 1315 Walnut Street, 12th Floor, Philadelphia, PA 19107, Counsel for Appellant in No. 14-4754

Lisa A. Mathewson [Argued], 123 South Broad Street, Suite 810 Philadelphia, PA 19109, Counsel for Appellant No. 14-4804

Peter Goldberger [Argued], Pamela A. Wilk, 50 Rittenhouse Place, Ardmore, PA 19003, Counsel for Appellant in No. 14-4812

Michael J. Engle [Argued], Stradley Ronon Stevens & Young, 2005 Market Street, Suite 2600, Philadelphia, PA 19103, Meredith A. Lowry, 1528 Walnut Street, Suite 1501, Philadelphia, PA 19102, Counsel for Appellant in No. 15-1344

William J. Brennan, 1600 Locust Street, Philadelphia, PA 19103, Counsel for Appellant in No. 15-1739

Mark E. Cedrone [Argued], Cedrone & Mancano, 123 South Broad Street, Suite 810 Philadelphia, PA 19109 Counsel for Appellant in No. 15-3765

Louis D. Lappen, Denise S. Wolf, Anthony J. Wzorek, Robert A. Zauzmer [Argued], Office of United States Attorney, 615 Chestnut Street, Suite 1250, Philadelphia, PA 19106, Counsel for Appellee

BEFORE: GREENAWAY, JR., NYGAARD, and FISHER, Circuit Judges

OPINION OF THE COURT

NYGAARD, Circuit Judge.

I.

In the run-up to a joint trial on a 77-count indictment that charged Appellants with operating a ticket-fixing scheme in the Philadelphia Traffic Court, the District Court denied a motion, under Federal Rule of Criminal Procedure 12(b)(3)(B)(v), to dismiss charges of conspiracy ( 18 U.S.C. § 1349 ), mail fraud ( 18 U.S.C. § 1341 ), and wire fraud ( 18 U.S.C. § 1343 ). Appellants Henry Alfano (private citizen) and William Hird (Traffic Court administrator) subsequently pleaded guilty to all counts against them. But now they appeal the District Court’s decision on this motion, questioning whether the indictment properly alleged offenses of mail fraud and wire fraud.¹

Appellants Michael Lowry, Robert Mulgrew, and Thomasine Tynes (Traffic Court judges) proceeded to a joint trial and were acquitted on the fraud and conspiracy counts, but they were convicted of perjury for statements they made before the Grand Jury. Lowry, Mulgrew, and Tynes dispute the sufficiency of the evidence on which they were convicted by arguing that the prosecutor’s questions were vague, and that their answers were literally true. Lowry and Mulgrew contend alternatively that the jury was prejudiced by evidence presented at trial on the fraud and conspiracy counts. Mulgrew also complains that the District Court erred by ruling that certain evidence was inadmissible.

At the same trial, the jury convicted Willie Singletary (Traffic Court judge) of making false statements during the investigation. He claims the District Court made errors when it sentenced him.² The Government concurs with Singletary’s challenge to his sentence.

We have consolidated these appeals for efficiency and have grouped the arguments—to the extent that it is possible—by common issues. We agree with Singletary and the Government that he should be resentenced. We will reverse the judgment and remand his cause to the District Court for this purpose. We are not persuaded by the rest of Appellants’ arguments and will affirm their judgments of conviction.³

II.

Appellants Alfano⁴ and Hird⁵

A.

We begin with a brief look at the indictment’s description of the Traffic Court and its operations to contextualize the arguments made by Alfano and Hird. The Philadelphia Traffic Court was part of the First Judicial District of Pennsylvania. App. 186 (Indictment ¶ 2).⁶ It adjudicated violations of the Pennsylvania Motor Vehicle Code occurring in the City of Philadelphia, no matter whether the Philadelphia Police or the Pennsylvania State Police issued the tickets. App. 187 (Indictment ¶ 5). When a person was cited for a violation he or she was required—within ten days—to enter a plea of guilty or not guilty. If the person failed to plead, the Traffic Court issued a notice that his or her license was being suspended. App. 189 (Indictment ¶ 12). A person who pleaded not guilty proceeded to a hearing with a Traffic Court judge presiding. App. 187 (Indictment ¶ 6).

A guilty plea, or a determination of guilt by a Traffic Court judge after a hearing, resulted in a judgment ordering payment of statutory fines and court costs. App. 188 (Indictment ¶ 8).⁷ The Traffic Court was responsible for collecting these fines (sending them to the City and Commonwealth) and costs (which it distributed to several pre-designated funds). App. 188-89 (Indictment ¶ 9). Finally, it reported the disposition of each adjudication to the Pennsylvania Department of Transportation (PennDOT). App. 189 (Indictment ¶ 11).

B.

The indictment charged that, at the behest of Alfano (App. 193 (Indictment ¶ 25) ) and others, the Traffic Court administrator and judges operated an "extra-judicial system, not sanctioned by the Pennsylvania court system" that ignored court procedure and gave preferential treatment ("consideration") to select individuals with connections to the court who had been cited for motor vehicle violations. App. 196 (Indictment ¶ 31). The special treatment included:

(1) dismissing tickets outright; (2) finding the ticketholder not guilty after a "show" hearing; (3) adjudicating the ticket in a manner to reduce fines and avoid assignment of points to a driver’s record; and (4) obtaining continuances of trial dates to "judge-shop," that is find a Traffic Court judge who would accede to a request for preferential treatment.

App. 195-196 (Indictment ¶ 30). All of this was "not available to the rest of the citizenry." App. 196 (Indictment ¶ 32). It also alleged that Appellants cooperated with each other to fulfill requests they and their staffs received. App. 194-95 (Indictment ¶ 27). Finally, it charged that "[i]n acceding to requests for ‘consideration,’ defendants were depriving the City of Philadelphia and the Commonwealth of Pennsylvania of money which would have been properly due as fines and costs." App. 197 (Indictment ¶ 38).⁸

After extending consideration to favored individuals, Traffic Court judges would report the final adjudication to "various authorities, including PennDOT, as if there had been a fair and open review of the circumstances." App. 197 (Indictment ¶ 34). Appellant Hird provided a printout to Appellant Alfano showing citations that had been "dismissed or otherwise disposed of." App. 198-99 (Indictment ¶ 42). Such "receipts" were not routinely issued in cases.

C.

Hird and Alfano pleaded guilty to all the charges against them in the indictment. But, in their plea agreement they reserved the right to appeal "whether the Indictment sufficiently alleged that the defendants engaged in a scheme to defraud the Commonwealth of Pennsylvania and the City of Philadelphia of money in costs and fees." App. 355 (Plea Agreement ¶ 9(b)(4) ). So they now appeal the District Court’s order denying the motion to dismiss, asserting that the indictment failed to allege violations of mail fraud and wire fraud.

"To be sufficient, an indictment must allege that the defendant performed acts which, if proven, constitute a violation of the law that he is charged with violating." United States v. Small , 793 F.3d 350, 352 (3d Cir. 2015). We assume in our review that the allegations in the indictment are true. United States v. Hedaithy , 392 F.3d 580, 583 (3d Cir. 2004). "The question of whether the ... indictments alleged facts that are within the ambit of the mail fraud statute is a question of statutory interpretation subject to plenary review." Id. at 590 n.10.

To indict on mail or wire fraud, the Government must allege that defendants "devised or intend[ed] to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises" and used mail or wire to effect the scheme. 18 U.S.C. §§ 1341, 1343. Alfano and Hird claim the Government failed to allege that the scheme to commit wire and mail fraud had an objective of "obtaining money or property."⁹

The District Court ruled that the indictment sufficiently alleged that the scheme "involved defrauding the Commonwealth and the City of money." App. 20. It noted, among others, allegations that:

The conspirators used the Philadelphia Traffic Court ("Traffic Court") to give preferential treatment to certain ticketholders, most commonly by "fixing" tickets for those with whom they were politically and socially connected. By doing so, the conspirators defrauded the Commonwealth of Pennsylvania and the City of Philadelphia of funds to which the Commonwealth and the City were entitled.

Id. at 18; see also id. at 185 (Indictment ¶ 1). Similarly, it referred to the following.

In acceding to requests for "consideration," defendants were depriving the City of Philadelphia and the Commonwealth of Pennsylvania of money which would have been properly due as fines and costs.

Id. at 9; see also id . at 197 (quoting Indictment ¶ 38). Highlighting the references to "funds" and "money," and that the monetary amounts of the fines are specifically pleaded, the District Court cited to a case from the Court of Appeals for the Eighth Circuit which concluded succinctly that "[m]oney is money." United States v. Sullivan , No. 2:13-cr-00039, 2013 WL 3305217, at *7 (E.D. Pa. July 1, 2013) (quoting United States v. Granberry , 908 F.2d 278, 280 (8th Cir. 1990) ). The District...