United States v. Pawlowski

27 F.4th 897

UNITED STATES of America

v.Edwin PAWLOWSKI, Appellant

No. 18-3390

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit L.A.R. 34.1a September 28, 2021

Opinion filed: March 4, 2022

Jack J. McMahon, Jr., 139 North Croskey Street, Philadelphia, PA 19103, Counsel for Appellant

Richard P. Barrett, Michelle Morgan, Anthony J. Wzorek, 615 Chestnut Street, Suite 1250, Philadelphia, PA 19106, Counsel for Appellee

Before: AMBRO, KRAUSE, and BIBAS, Circuit Judges

OPINION OF THE COURT

AMBRO, Circuit Judge

A jury convicted Edwin Pawlowski of federal programs bribery, Travel Act bribery, attempted Hobbs Act extortion, wire and mail fraud, honest services fraud, making false statements to the FBI, and conspiracy. The charges stemmed from a scheme in which Pawlowski—then the Mayor of Allentown, Pennsylvania—steered city contracts and provided other favors in exchange for campaign contributions. The District Court imposed a 180-month sentence.

On appeal, Pawlowski argues that (1) there was insufficient evidence to support his convictions, (2) his inability to recross-examine a Government witness violated the Sixth Amendment's Confrontation Clause, and (3) his sentence is procedurally and substantively unreasonable. We reject each argument and hence affirm.¹

I.

We conduct a fresh review for a sufficiency-of-the-evidence challenge. United States v. Starnes , 583 F.3d 196, 206 (3d Cir. 2009). Our review is, however, "guided by strict principles of deference to a jury's verdict." United States v. Rosario , 118 F.3d 160, 162–63 (3d Cir. 1997). We must view the evidence "in the light most favorable to the prosecution," and will affirm the conviction if a "rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Garner , 915 F.3d 167, 169 (3d Cir. 2019) (quoting United States v. Caraballo-Rodriguez , 726 F.3d 418, 424–25 (3d Cir. 2013) (en banc)). "Reversing the jury's conclusion simply because another inference is possible—or even equally plausible—is inconsistent with the proper inquiry for review of sufficiency of the evidence challenges." Id. (quoting Caraballo-Rodriguez , 726 F.3d at 432 ).

Pawlowski contests all counts of conviction as lacking sufficient evidence. For our purposes, these counts can be divided into two groups: bribery² and false statements. We conclude that the evidence was sufficient to convict on both.

A.

As to the bribery counts, Pawlowski contends the Government failed to prove an explicit quid pro quo necessary to succeed on charges premised on the solicitation or acceptance of campaign funds. Because the parties agree that proof is required, we assume (without deciding) it is.

The "explicit quid pro quo " requirement derives from McCormick v. United States , 500 U.S. 257, 111 S.Ct. 1807, 114 L.Ed.2d 307 (1991). There, the Supreme Court addressed the complexities in prosecuting an elected official for soliciting or receiving campaign donations. On the one hand, our nation's election campaigns are privately funded, requiring candidates to seek donations from their supporters. See id. at 272, 111 S.Ct. 1807. And a representative's role is to further the interests of his or her constituents. Indeed, "[i]t is well understood that a substantial and legitimate reason, if not the only reason, [to contribute to] one candidate over another is that the candidate will respond by producing those political outcomes the supporter favors." Citizens United v. FEC , 558 U.S. 310, 359, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010) (quoting McConnell v. FEC , 540 U.S. 93, 297, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003) (Kennedy, J., concurring in part and dissenting in part)). Thus, as a practical matter, policing elected officials for requesting or receiving campaign funds "open[s] to prosecution not only conduct that has long been thought to be well within the law but also conduct that in a very real sense is unavoidable so long as election campaigns are financed by private contributions or expenditures." McCormick , 500 U.S. at 272, 111 S.Ct. 1807.

But, at the same time, this regime is open to abuse, and our representative system is undermined without restrictions on officials' ability to engage in partisan conduct on behalf of their donors. See Buckley v. Valeo , 424 U.S. 1, 26–27, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam). The public correspondingly has an interest in ensuring its representatives are held accountable for abusing the public trust, even when that abuse occurs in the campaign-finance context. See United States v. Dozier , 672 F.2d 531, 537 (5th Cir. 1982) ("Our need to avoid hampering honest candidates who must solicit funds from prospective supporters does not require that the courts abandon this necessary, if troublesome, realm of political maneuver to those who would abuse its opportunities.").

To balance these competing claims, McCormick imposed on the Government a heightened burden of proof: an official's solicitation or acceptance of campaign funds is presumed legitimate unless the prosecution establishes an explicit quid pro quo , meaning "an explicit promise or undertaking by the official to perform or not to perform an official act" in exchange for the donation. 500 U.S. at 273, 111 S.Ct. 1807. A "vague expectation of future benefits" is not enough. Dozier , 672 F.2d at 537. Rather, the evidence, considered as a whole, must show that the official obtained or attempted to obtain campaign contributions "in exchange for specific promises to do or refrain from doing specific things." See United States v. Farley , 2 F.3d 645, 651 (6th Cir. 1993) (emphasis omitted) (quoting United States v. Bibby , 752 F.2d 1116, 1127 n.1 (6th Cir. 1985) ).

At issue in McCormick was whether a public official's receipt of alleged campaign funds constituted Hobbs Act extortion "under color of official right." 18 U.S.C. § 1951(b)(2). The Supreme Court has yet to extend McCormick 's explicit quid pro quo requirement beyond the extortion context. But because the parties agreed to require proof of such an arrangement, we assume without deciding that McCormick governs each of the Government's bribery counts, at least where those counts are premised on the solicitation or acceptance of campaign funds. See United States v. Antico , 275 F.3d 245, 257 (3d Cir. 2001) (declining to extend McCormick to non-campaign donation cases). And contrary to Pawlowski's position, when viewed in the Government's favor, the parties' conversations and conduct (detailed below) establish explicit quid pro quos , showing the intent to use his public office to provide specific favors in exchange for political donations.

Pawlowski was convicted of seven bribery sub-schemes, each of which involved a different prospective donor (generally, would-be city contractors). He interacted with them largely through his political consultants, Michael Fleck and Sam Ruchlewicz. And several favors involved the assistance of the City's Managing Director, Francis Dougherty. In addition to the testimony of Ruchlewicz, Dougherty, and several contributors, the Government introduced surreptitiously taped conversations among Pawlowski, Ruchlewicz, Fleck, and others. This evidence was sufficient to show an explicit quid pro quo between Pawlowski and each of the seven prospective donors: (1) Ramzi Haddad; (2) Northeast Revenue Service; (3) Spillman Farmer Architects; (4) McTish, Kunkel & Associates; (5) the Norris McLaughlin law firm; (6) The Efficiency Network; and (7) CIIBER/5C Security. Because the District Court thoroughly recounted the evidence in its opinion denying Pawlowski's Rule 29 motion, see United States v. Pawlowski , 351 F. Supp. 3d 840, 851–71 (E.D. Pa. 2018), we set out only a portion of that evidence here.

1.

The first contributor, Ramzi Haddad, was developing a property in Allentown. Evidence showed he and Pawlowski agreed that Haddad would contribute to Pawlowski's campaign in exchange for two favors regarding the property: (1) expediting a zoning request; and (2) securing a favorable inspection.

For the first favor, Haddad approached the City's zoning office with a request in early December 2014 and was told it would not be addressed until January 2015. He then spoke with Ruchlewicz. During that conversation, Ruchlewicz asked Haddad to contribute $2,500 to Pawlowski's campaign. He responded by asking for a "gift" from Pawlowski, explaining that it had to do with a zoning issue. Supp. App. 1131. The two spoke again about a contribution a few days later, at which time Ruchlewicz informed Haddad that he had conferred with Pawlowski about Haddad's need for zoning help, and Pawlowski responded, "[W]hatever [Haddad] want[s, c]onsider it done." Id. at 1137. Ruchlewicz also testified that he had brought Haddad's zoning issue to the attention of Pawlowski and Dougherty. Then, in a conversation on December 17, Dougherty told Ruchlewicz that he would direct the City's Zoning Supervisor, Barbara Nemith, to "prioritize her review" of Haddad's request. Id. at 1144. Nemith testified that Dougherty told her about Haddad's request and that, but for his inquiry, it would have taken longer to approve. A reasonable jury could find that Pawlowski—acting through Ruchlewicz and Dougherty—pressured Nemith to expedite Haddad's zoning request in exchange for Haddad's $2,500 campaign contribution.³

The second favor—concerning a property inspection—came a few months later. During a meeting in May 2015, Pawlowski asked how much Haddad could raise for the former's campaign, to which he responded that he had $35,000 "in [his] pocket for [Pawlowski]." Id. at 1267. Haddad then immediately turned the conversation to a city inspection of the property, expressing frustration that a delay had cost him customers as well as concern that the inspector would "[ ]nit pick [him] again." Id. Pawlowski said he was "working" on the issue. Id. Three days later, on the morning of the scheduled inspection, Pawlowski...