Thursday, April 13, 2017

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.  

1 comment:

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