Skip to main content

Evidence of Uncharged Solicitations Admissible under Rule 404(b) in Hobbs Act Extortion and Federal Programs Bribery Prosecution

In United States v. Repak, No. 15-4011, 2017 WL 1149100 (3d Cir., March 28, 2017), Defendant challenged his conviction for two counts each of Hobbs Act extortion and federal program bribery. During his tenure as executive director of the Jonestown Redevelopment Authority ("JRA”), Defendant ran the daily operations of the organization, including making recommendations to the board regarding which businesses should be awarded contracts and grants to perform work for or establish business in Jonestown. The government charged Defendant with soliciting gifts from contractors to whom JRA had awarded contracts, including event tickets, golf outings, a new roof for his house and excavation services for his son’s gym. Defendant raised several challenges to his convictions, specifically in relation to the lower court’s evidentiary rulings, the jury instructions, the sufficiency of the trial evidence, and the prosecutor’s closing arguments.
 
The government sought to admit evidence under Rule 404(b) regarding additional bribes that Defendant had solicited from other contractors to show that Defendant possessed the requisite knowledge and intent to commit the offenses charged in the indictment. Despite the lower court’s failure to provide a detailed analysis under Rule 404(b), the Third Circuit conducted its own Rule 404(b) analysis to rule that the proffered evidence was admissible. Specifically, the court ruled that the evidence was relevant to show that Defendant knew that the items he received were not unilateral token gifts but were given in order to influence his official acts as JRA’s executive director. As these other solicitations occurred within a discrete time frame with some of the same actors involved in the charged conduct, these uncharged solicitations evinced a course of conduct which tended to show Defendant’s intent to accept bribes in exchange for city contract work. The Third Circuit also ruled that the limiting instruction provided by the trial court tempered the prejudicial impact of the proffered evidence, as well as the fact that the evidence consisted of uncharged conduct as opposed to a conviction.

Defendant also challenged the trial court’s admission of evidence of his affair with his assistant under Rule 403. Defendant had solicited gifts from contractors for his assistant, and the assistant had directly solicited gifts from contractors on behalf of Defendant. The government sought to introduce evidence of the affair to show Defendant’s motive for soliciting certain gifts, as well as to assist the jury in assessing the assistant’s credibility. The Third Circuit ruled that the lower court did not abuse its discretion by admitting this affair evidence, as the evidence was relevant and its prejudicial impact was not so unfair as to substantially outweigh its probative value.

Defendant also challenged the sufficiency of the evidence supporting his convictions, including a challenge to whether his conduct involved "official acts," as defined in McDonnell v. United States, 136 S.Ct. 2355 (2016). However, the Third Circuit found these arguments unpersuasive. The court also ruled that the prosecutor’s reference during his closing arguments to Defendant’s extramarital affair, and his invitation to the jury to “send a message” to the residents of Jonestown, did not rise to the level of a Due Process violation.  

Comments

  1. Very well written and informative blog. Thanks! Keep updating.Criminal solicitor’s that will fight to get you the best outcome at court! David Dribbin & Michael Brown have a combined experience in excess of 40 years.They direct an enthusiastic team of lawyers from their Geelong office that regularly attend the Geelong Magistrates Court.
    Lawyers Geelong

    ReplyDelete

Post a Comment

Popular posts from this blog

Double Jeopardy Claim Falls Short on Deferential Habeas Review

In the habeas matter of Wilkerson v. Superintendent Fayette SCI, Nos. 15-1598 & 15-2673, the Third Circuit defers to a state court determination that the defendant’s conviction of both an attempted murder count and an aggravated assault count based on the same altercation did not violate the Double Jeopardy Clause.
The evidence was that during the altercation, the defendant both struck the victim in the head with a gun and shot him in the chest. The Pennsylvania Superior Court upheld consecutive sentences on the theory that the evidence was sufficient to permit a jury to find the striking to support one count and the shooting the other. Despite the jury instructions’ and verdict form’s failure to require each of these discrete findings, the Third Circuit holds that the state court’s reasoning was sound enough to withstand deferential review the AEDPA’s “clearly established Federal law” limitation. “[W]here the jury instructions were merely ambiguous and did not foreclose the jury…

Jurisdiction for revocation of supervised release where revocation also imposed in other District on concurrent case and local Probation Office was not supervising releasee

In United States v. Johnson, 2017 WL 2819210 (June 30, 2017), http://www2.ca3.uscourts.gov/opinarch/163268p.pdf, the Third Circuit rejected two jurisdictional challenges to a revocation proceeding in one District where the defendant was also concurrently supervised and revoked in another District. For separate federal offenses in the Middle District of Florida and Virgin Islands, Johnson was serving two concurrent terms of supervised release. He was living in and supervised by the Middle District of Florida and had no contact with the Probation Office in the Virgin Islands. He committed a new offense in Florida and the Middle District revoked his supervised release. Johnson challenged revocation proceedings in the Virgin Islands. The Third Circuit found that the Virgin Islands maintained jurisdiction. It joined the Second and Fifth Circuits in finding that concurrent terms of supervised release do not merge: the term of supervised release in the Virgin Islands was not constructively d…

Mailing Threatening Communications is a Crime of Violence and a Judicial Proposal for Reform of the Categorical Approach

In United States v. Chapman, __F.3d__, No. 16-1810, 2017 WL 3319287 (3d Cir. Aug. 4, 2017), the Third Circuit held that mailing a letter containing any threat to injure the recipient or another person in violation of 18 U.S.C. § 876(c) qualifies as a crime of violence for the purposes of the career offender enhancements of the Sentencing Guidelines Manual § 4B1.1(a).The Court acknowledged in a footnote that the analysis is the same for a violation of 18 U.S.C. § 871, threats against the president.


The Court began its analysis by reviewing the definition of “crime of violence” and specifically the meaning of the words “use” and “physical force.”Quoting United States v. Castleman, 134 S. Ct. 1405 (2014), and Tran v. Gonzales, 414 F.3d 464 (3d Cir. 2005), it defined “use” as “the intentional employment of force, generally to obtain some end,” which conveys the notion that the thing used “has become the user’s instrument.” The Court confirmed the definition of “physical force” as “force ca…