United States v. Kemp ( 2007 )


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  •                                                                                                                            Opinions of the United
    2007 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    8-27-2007
    USA v. Kemp
    Precedential or Non-Precedential: Precedential
    Docket No. 05-3477
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    Recommended Citation
    "USA v. Kemp" (2007). 2007 Decisions. Paper 488.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2007/488
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    PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    No. 05-3477
    UNITED STATES OF AMERICA
    v.
    COREY KEMP,
    Appellant
    On Appeal from the United States District Court
    for the Eastern District of Pennsylvania
    (D.C. Criminal No. 04-cr-00370-2)
    District Judge: Hon. Michael M. Baylson
    No. 05-3561
    UNITED STATES OF AMERICA
    v.
    JANICE RENEE KNIGHT,
    Appellant
    On Appeal from the United States District Court
    for the Eastern District of Pennsylvania
    (D.C. Criminal No. 04-cr-00370-6)
    District Judge: Hon. Michael M. Baylson
    No. 05-4623
    UNITED STATES OF AMERICA
    v.
    LAVAN HAWKINS,
    Appellant
    On Appeal from the United States District Court
    for the Eastern District of Pennsylvania
    (D.C. Criminal No. 04-cr-00370-5)
    District Judge: Hon. Michael M. Baylson
    No. 05-4717
    UNITED STATES OF AMERICA
    v.
    STEPHEN M. UMBRELL,
    Appellant
    On Appeal from the United States District Court
    for the Eastern District of Pennsylvania
    (D.C. Criminal No. 04-cr-00370-4)
    District Judge: Hon. Michael M. Baylson
    2
    No. 05-4846
    UNITED STATES OF AMERICA
    v.
    GLENN K. HOLCK,
    Appellant
    On Appeal from the United States District Court
    for the Eastern District of Pennsylvania
    (D.C. Criminal No. 04-cr-00370-3)
    District Judge: Hon. Michael M. Baylson
    Argued June 5, 2007
    BEFORE: SMITH and COWEN,
    and SILER*, Circuit Judges
    (Filed August 27, 2007)
    *Honorable Eugene E. Siler, Jr., Senior United States Circuit
    Judge, U.S. Court of Appeals for the Sixth Circuit, sitting by
    designation.
    3
    Lloyd G. Parry, Esq.
    Davis, Parry & Tyler
    1525 Locust Street, 14th Floor
    Philadelphia, PA 19102
    William R. Spade, Jr., Esq.
    1525 Locust Street, Suite 1400
    Philadelphia, PA 19102
    Counsel for Appellant Corey Kemp
    Nino V. Tinari, Esq.
    123 South Broad Street, Suite 1970
    Philadelphia, PA 19109
    Counsel for Appellant Janice Renee Knight
    Timothy K. Lewis, Esq. (Argued)
    Schnader, Harrison, Segal & Lewis
    2001 Pennsylvania Avenue, N.W., Suite 300
    Washington, DC 20006
    Elizabeth K. Ainslie, Esq.
    Nancy Winkelman, Esq.
    Bruce P. Merenstein, Esq.
    Schnader Harrison, Segal & Lewis
    1600 Market Street, Suite 3600
    Philadelphia, PA 19103
    Nathaniel E. Jones, Esq.
    James H. Fields, Esq.
    Jones & Associates
    111 South Calvert Street
    Legg Mason Tower, Suite 2700
    Baltimore, MD 21202
    Counsel for Appellant Lavan Hawkins
    4
    Lawrence S. Lustberg, Esq. (Argued)
    Kevin McNulty, Esq.
    Gibbons, P.C.
    One Gateway Center
    Newark, NJ 07102-5310
    Counsel for Appellant Stephen M. Umbrell
    Kevin H. Marino, Esq. (Argued)
    John D. Tortorella, Esq.
    Marino Tortorella
    437 Southern Boulevard
    Chatham, NJ 07928
    Counsel for Appellant Glenn K. Holck
    Robert A. Zauzmer, Esq. (Argued)
    Office of the United States Attorney
    615 Chestnut Street
    Philadelphia, PA 19106
    Counsel for Appellee United States of America
    OPINION
    COWEN, Circuit Judge.
    After a wide-ranging investigation into corruption in
    Philadelphia city government, the federal government obtained
    convictions against Corey Kemp, the former treasurer of
    Philadelphia; Glenn G. Holck and Stephen M. Umbrell, former
    executives of Commerce Bank; La-Van Hawkins, a businessman
    from Detroit; and Janice Renee Knight, the nominal owner of a
    printing company named RPC Unlimited. The appellants
    challenge their judgments of conviction on a variety of fronts.
    For the reasons discussed below, we will affirm.
    I.
    5
    A.       The Charges
    On November 2, 2004,1 a grand jury in the Eastern
    District of Pennsylvania returned a 63-count indictment against
    Kemp, Holck, Umbrell, Hawkins, Knight, Ronald White, a
    Philadelphia-based lawyer with close ties to city government,2
    and four others whose cases proceeded separately. The
    centerpiece of the indictment charged Kemp, White, Holck,
    Umbrell, Knight, and Hawkins with conspiracy to commit
    honest services fraud in violation of 18 U.S.C. § 371. According
    to the indictment, White acquired control over Kemp’s decision-
    making by making corrupt payments and gifts to Kemp, and then
    used that control to direct city contracts to companies that he
    favored. The indictment alleged that Hawkins aided this
    arrangement by funneling bribe money from White to Kemp,
    and that Knight, White’s girlfriend, took advantage of White’s
    control over Kemp by accepting a steady stream of city business
    through RPC Unlimited. Moreover, the indictment charged
    Holck and Umbrell with participating in the conspiracy by
    extending, through Commerce Bank, otherwise-unavailable
    loans to Kemp in exchange for preferential treatment from Kemp
    on official matters.
    In addition to the conspiracy charge, the indictment also
    charged the defendants with numerous counts of honest services
    mail fraud, honest services wire fraud, extortion, and perjury. Of
    these charges, four groups are relevant to this appeal. First,
    Kemp was charged with two counts of honest services mail fraud
    for his role in an asset-locator business that he created and
    operated with his friend, Rhonda Anderson. Second, Holck and
    Umbrell were charged with eight counts of honest services wire
    fraud concerning their role in corrupting Kemp. Third, Hawkins
    was charged with two counts of aiding and abetting wire fraud,
    concerning his transfer of money to Kemp. Fourth, Hawkins
    1
    The defendants were initially indicted on June 29, 2004.
    For simplicity, all references to the indictment refer to the
    superseding indictment.
    2
    White passed away before trial.
    6
    was charged with four counts of perjury stemming from false
    statements that Hawkins allegedly made while testifying before a
    grand jury investigating this case.3
    B.     The Government’s Evidence4
    Kemp, Hawkins, Knight, Holck, and Umbrell proceeded
    together to trial. Opening statements began on February 22,
    2005, and the government presented its case over the next six
    weeks. Central to the government’s case were tape recordings of
    scores of conversations between the defendants.
    3
    These are but a selection of the charges included in the
    indictment. Overall, Kemp was charged with one count of
    conspiracy, 20 counts of wire fraud, 12 counts of mail fraud, three
    counts of making false statements to a bank, four counts of money
    laundering, four counts of filing false tax returns, one count of
    extortion, and one count of attempted extortion; Hawkins was
    charged with one count of conspiracy, four counts of wire fraud,
    and four counts of perjury; Knight was charged with one count of
    conspiracy, three counts of wire fraud, and three counts of making
    false statements to the FBI; and Holck and Umbrell were charged
    with one count of conspiracy, eight counts of wire fraud and one
    count of mail fraud. White was the subject of 38 counts.
    4
    We construe the evidence in the light most favorable to the
    government, as the verdict winner. See, e.g., United States v.
    Dobson, 
    419 F.3d 231
    , 234 (3d Cir. 2005).
    7
    1.     Evidence Concerning Kemp
    The government overwhelmingly proved that White
    showered Kemp with gifts5 and that Kemp permitted White to
    wield an untoward influence in selecting which companies
    would be selected for6 or excluded from7 bond teams.8 Kemp
    5
    White arranged for Kemp to receive tickets to the NBA
    All-Star Game and concomitant festivities; two $5,000 checks from
    Hawkins; a $10,350 deck; transportation and tickets to the Super
    Bowl in San Diego as well as accommodation and meals; four
    tickets to a USA basketball game; trips to New York and Detroit;
    and numerous meals. Moreover, White promised to help Kemp
    advance his post-treasurer career.
    6
    For instance, in an April 28, 2003 phone call, White and
    Kemp discussed the composition of several bond teams. Kemp
    noted that White had been selected as counsel for each deal, so the
    two focused on underwriters. An excerpt of the telephone call
    illustrates White’s massive authority:
    Kemp: And you wanted Loop on there.
    White: Ah . . .
    Kemp: On the UBS, First American and Loop.
    White: Yeah. . . . [A]lso I would like . . . Janney
    Montgomery Scott.
    Kemp: Okay.
    White: All right?
    Kemp: All right.
    White: If I gotta take Siebert off, well, if I, we gotta
    take somebody off I definitely want Janney
    Montgomery Scott on there. So we addin’ Loop,
    you say, and Janney Mont. . .
    Kemp: You . . . wanted UBS, First American, Loop,
    and you want Janney.
    White: Yeah.
    Kemp: Okay, all right.
    (App. 11983-84.)
    A February 25, 2003 phone call found Kemp and White
    gloating about their successes: after White instructed Kemp to offer
    a spot to a particular individual, Kemp stated, “Not a problem at
    8
    all. Yeah. So, . . . we got the whole rest of the team.” White
    responded, “Right. We’re finally doing it the way they use to do
    us, right? It’s terrible, ain’t it brother?” Kemp replied, “Oh no, it’s
    life. Oh, it’s life man.” (App. at 11707.)
    Kemp and White’s mode of operation is clearly illustrated
    in their conversation about Andre Allen, a principal of a
    Philadelphia financial advisory firm, who was seeking business
    from the city. Right off the bat, White asked Allen for a $25,000
    contribution to the mayor’s reelection campaign, and Allen
    promised to consider the request. Soon thereafter, Kemp and
    White discussed this situation:
    White: [Allen] called me, today. . . He called me,
    you know, because I, I asked him . . . if he could
    raise twenty-five grand. . . . Called me you know,
    crying, talkin’ about he couldn’t do it. . . . Then he
    started askin’ me, well, man, if, you know, if you all
    deliv-, and I said, listen, man, how many times I got
    to tell you, don’t have that conversation with me.
    Kemp: Right.
    White: You know what I mean, don’t have no quid
    pro quo conversations with me, I don’t have those
    kinds of conversations. You know, I said listen, I
    ain’t got time to convince you, man, you know.
    Like, we sat down and we spent a lot of time with
    you, and we told you, you know, you was going to
    be part of the team. Now, you know, yous either,
    you down or you ain’t with it.
    Kemp: Right, right. . . . ‘Cause if they don’t, if they
    ain’t with it they ain’t going to get nothin’.
    White: That’s right.
    Kemp: You know, you, you just hate to say it, but
    that’s the way it is. . . . You know it’s not a hard
    decision. You know, because that stuff comes,
    comes back, over and over.
    (App. 12973-74.)
    7
    For instance, in the February 25, 2003 phone call, Kemp
    reported that he had been asked to include Pryor, McClendon, a
    financial firm, and Schnader, Harrison, a law firm, on the Drexel
    9
    and White’s relationship was accurately encapsulated by Kemp’s
    statement, after informing White that White would be paid
    $35,000 to $40,000 for a city contract, “[Y]ou got your boy
    sitting in the Treasurer’s seat, man!” (App. at 12473.)
    The government also presented evidence concerning the
    asset-locator business that Kemp operated with his friend
    Anderson. Anderson testified that in November 2002, Kemp
    told Anderson that the treasurer’s office had received a request
    from a company for a list of bondholders whose bonds had
    matured but who had not collected their money. Kemp told
    Anderson that the two of them should create a business offering
    the same service. Kemp and Anderson hoped to get paid by the
    bondholders for facilitating their recovery; Kemp and Anderson
    agreed that Kemp would receive 40% of the proceeds. Kemp
    “said that he would have to be paid in cash and that no one could
    really know about his interest in it because he was treasurer.”
    (App. at 9006.) According to Anderson, Kemp would receive
    his share for providing the list of bondholders and generating the
    forms that had to be filed to permit the banks to pay on the
    bonds. Anderson ultimately initiated this business, using a
    company that she co-owned with another friend. She collected
    fees of $3,700 and $1,000, and paid Kemp, in cash, a total of
    $1,300 for his services.
    University bond team. White strenuously objected to these firms,
    and stated, “[Y]ou tell him Pryor McClendon is out, forever.”
    White went on to demand that Schnader, Harrison also be
    excluded, explaining that “they don’t do nothin’ for nobody.”
    (App. at 11705.) While Schnader, Harrison earned more than other
    law firms in fees from bond deals while Kemp’s predecessor was
    treasurer, during Kemp’s tenure, they were not selected for a single
    deal.
    8
    Philadelphia assembled a “bond team” to handle the
    issuance of bonds. This team included, among other professionals,
    a lead underwriter, other underwriting banks, separate counsel for
    the issuer and bondholders, and a printer for the financial
    documents.
    10
    2.     Evidence Concerning Holck and Umbrell
    The government showed that Holck and Umbrell, as
    executives of Commerce Bank, worked mightily to earn
    contracts and increase cash deposits from Philadelphia.9 At the
    same time that they were soliciting this business, Holck and
    Umbrell extended five different loans to Kemp. The government
    contrasted Commerce’s amenability to Kemp once he became
    treasurer to the fact that just before Kemp took that position, in
    September 2001, Commerce rejected Kemp’s application for a
    $2,000 line of credit with a form letter. It was the government’s
    position that Holck and Umbrell extended these loans to Kemp
    for the purpose of influencing his decision-making, while Holck
    and Umbrell claimed that the loans were made in the ordinary
    course of business. The government’s evidence concerning
    these loans may be summarized as follows:
    First, the government presented testimony demonstrating
    that Kemp introduced Paul Schnapp, a member of his family, to
    Umbrell, and requested a $10,000 loan for Schnapp. Schnapp
    had filed for bankruptcy two years earlier, and his application for
    a similar loan had recently been rejected by Wachovia.
    Commerce required Schnapp’s wife, Teresita, a recent
    immigrant to the United States with almost no credit history, to
    co-sign the loan. Schnapp’s loan application indicated that his
    income was $10,000 a month, but the only supporting
    documentation demonstrated income in the past month of
    $1,800. The branch manager wrote to a colleague that “this
    comes from the top” and was an “easy one,” and Schnapp was
    approved for an unsecured $10,000 loan days after applying.
    (App. at 16548.)
    Second, Commerce provided Kemp with mortgages that
    allowed him to purchase a $225,000 house with no money down.
    On November 4, 2002, Umbrell reported to the chairman of
    Commerce that Kemp had requested a mortgage and that
    Umbrell and a Commerce mortgage representative would meet
    9
    White, who was on Commerce’s payroll as a consultant,
    aided in these efforts.
    11
    with Kemp the following day. Umbrell did meet with Kemp;
    however, instead of a mortgage representative, the third member
    of the group was White. The next day, Umbrell approved
    Kemp’s request to be pre-qualified for a $227,000 mortgage.
    However, Commerce Bank’s policy was only to provide letters
    of pre-qualification to those individuals with credit scores of at
    least 680, and Kemp’s scores ranged from 456 to 526. The
    government presented evidence that this was not an official
    Commerce pre-qualification form, but was a singular letter
    created by Umbrell to benefit Kemp.
    The initial mortgage was formally approved on November
    18, 2002 – before Kemp had even completed an application.
    Commerce submitted Kemp’s application to its underwriting
    process, and the application was rejected by the program that
    Commerce used to rate loans. The report indicated that Kemp’s
    and his wife’s credit scores ranged from 440 to 528, that Kemp
    had a past-due liability to Wachovia of over $13,000, and that
    Kemp owed other creditors an additional $20,000. Thomas
    Conte, who was the operations manager of Commerce’s
    mortgage department at the time Kemp’s loan was processed,
    reviewed the underwriting results and also rejected the
    application. However, on December 3, 2002, Holck and
    Umbrell reversed Conte’s decision and approved the loan.
    While the loan was initially contingent upon Kemp’s repaying
    the $33,000 that he owed to creditors, a week later, Holck and
    Umbrell waived that condition. Conte testified that this process
    deviated from Commerce Bank’s standard underwriting
    procedures.
    On December 18, 2002, Commerce’s consumer loan
    department began processing Kemp’s second mortgage loan, for
    the additional 20% of the purchase price. Commerce’s usual
    policy was to advance 100% financing only to individuals with a
    credit score of at least 650 and no charge-offs in the past seven
    years. Kemp clearly did not meet those requirements – his credit
    score, as calculated by this underwriting program, was 433, and
    his charge-off with Wachovia originated within the previous
    year – and the underwriting program rejected the application.
    Nevertheless, Umbrell authorized the loan on the basis of
    Kemp’s “strong bank relationship,” his position as treasurer, and
    12
    his income. (App. at 16347-48.) Contrary to Umbrell’s claim
    that Kemp had a strong relationship with Commerce, the
    government presented evidence that Kemp’s account with
    Commerce usually contained less that $1,000.
    Third, in March 2003, Commerce made a $21,300
    automobile loan to Kemp. The applicable credit report showed
    that Kemp’s credit score was 520, which was still below
    Commerce’s standard requirement of 650, and that Kemp had a
    prior bad debt to Wachovia (as described above) and an
    additional prior bad debt to Summit Bank for a 1990 Pontiac
    Grand Am. Again, the underwriting program did not approve
    the loan, and again, Umbrell overrode the declination, based on
    Kemp’s “strong bank relationship” and “positive previous
    experience.” (App. at 16361.)
    Fourth, in June 2003, Commerce approved Kemp’s
    request for a $480,000 construction loan for his church, which
    had been damaged by lightning. On June 23, 2003, Miriam
    D’Elia, an attorney at White’s law office, who was handling the
    closing for Commerce, informed Kemp that the church would
    not receive any money until it provided all of its specifications
    and plans. Kemp then called Umbrell, and Umbrell agreed to
    disburse money to the church for previous expenses as long as
    Kemp provided invoices – even without providing proof that the
    church had paid those invoices. Kemp and the church’s pastor
    then created false invoices so that the church could procure
    money for invented expenses.
    The day after Kemp spoke to Umbrell, D’Elia informed
    Kemp that Commerce’s closing agent, Valerie Coates, was “very
    concerned” that the church understood it would not receive any
    money at the closing. (App. at 12449.) Kemp told D’Elia that
    Umbrell had approved the church’s obtaining money for costs,
    and D’Elia responded that Coates was “real upset about that.”
    (App. at 12450.) Coates then joined the conversation, and stated
    to Kemp, “[Y]ou’re not expecting any funding [at closing],
    correct.” (App. at 12452.) Kemp responded that Umbrell had
    approved the church’s being reimbursed for previous expenses,
    and Coates said, “Okay, he’s gonna be a bad boy then.” (App. at
    12453.) Coates testified that this statement did not mean that
    13
    Umbrell had acted inappropriately, only that this decision would
    complicate her work.
    Kemp and Umbrell spoke again later that day. Kemp
    asked Umbrell if he would waive any of the closing fees, and
    Umbrell agreed to waive the $3,500 appraisal fee. The two then
    discussed the renewal of some of Philadelphia’s certificates of
    deposit with Commerce. Kemp told Umbrell that Umbrell did
    not have to work with any of Kemp’s subordinates on the deal,
    but should talk to Kemp himself, because “I want them to know
    that you are my f__king guy. . . . So you get special treatment.”
    (App. at 12459.)
    Coates then sent an email to Holck, asking him to
    approve the advance of 80% of the church’s as-is value of
    $150,000; immediately thereafter, Holck approved. In the file
    notes for the loan, Coates wrote, “I did what I was told to do.”
    (App. at 16409.) She testified that this did not denote that she
    was unhappy with what had occurred, only that her actions had
    been authorized.
    Fifth and finally, on July 1, 2003, Umbrell called Kemp,
    and the two briefly discussed Philadelphia’s deposits with
    Commerce, and then Kemp stated, “[M]y brother-in-law’s
    looking to do a small personal loan. . . . What’s the maximum
    he can do unsecured?” (App. at 12549-50.) Umbrell responded,
    “[H]ow much does he need, tell me what he needs, ‘cause then
    I’ll know what pocket to put it in.” (App. at 12550.) Kemp
    informed Umbrell that his brother-in-law had “shaky credit,”
    Umbrell asked if it was “bankruptcy bad,” and Kemp responded
    in the negative. (App. at 12550.) Umbrell responded, “What do
    you want to go back and promise him? . . . Is [$6,000] enough
    for you to go back with? . . . I’m trying to make you look good .
    . . how much do you want to . . . if you want to tell him seventy
    five hundred, tell him seventy five hundred.” (App. at 12551.)
    The two ultimately agreed on $7,500, which, as the telephone
    call made clear, Umbrell approved without so much as seeing an
    application or speaking to the borrower. The government
    presented evidence demonstrating that Holck, Umbrell, and
    Kemp all understood that in return for these loans, Commerce
    Bank would receive preferential treatment. Most significant
    14
    were the circumstances surrounding the city’s selection of
    Commerce to offer a $30 million line of credit in support of the
    Neighborhood Transformation Initiative (NTI). In order to
    select the bank that would offer this line of credit, the city
    instituted a bidding process, in which interested banks would
    submit competing financial plans to the city. Soon after
    Commerce’s submission, Kemp told White to tell Commerce, in
    the future, not to submit its bid first, because then Kemp could
    tell White about the other bids so that Commerce could then bid
    accordingly. Later that day, White called Umbrell, and said,
    “Listen, uh, somebody told me to tell you that when you guys do
    these things, don’t ever send your stuff in first.” (App. at
    12192.) Umbrell responded, “[Y]ou know I love you, right? . . .
    I know who told you that, . . . and I understand why.” (App. at
    12192.) White then called Holck and gave him the same advice.
    Holck replied, “I know, I know. Corey said to him not to.”
    (App. at 12198.)
    Initially, the two best bids came from Commerce and
    KBC Bank. KBC offered the lowest interest rate, but Commerce
    offered to defer interest for an initial period. Kemp told White
    that he planned to call Commerce and convince them to lower
    their interest rate, which he did, in a subsequent conversation
    with Holck. Thus, Commerce was given the opportunity to
    submit a second bid. Around this time Kemp met with Donald
    DiLoreto, a representative of Wachovia Bank, and they
    discussed the bidding. After their conversation, DiLoreto
    emailed Kemp asking if he could submit an improved bid.
    Kemp never responded.
    After Commerce submitted its improved offer, Kemp
    asked his boss, Janice Davis, if they could award the line of
    credit to Commerce. Davis told Kemp that if one bank was
    permitted to rebid, every bank must receive the same
    opportunity. Neither Davis nor the representatives of the five
    banks who submitted bids expected that any bank would have a
    chance to enter a second bid. Nevertheless, on Davis’s orders,
    Kemp opened another round of bidding.
    After the second round of bidding began, Holck and
    Umbrell discussed the situation in a telephone call with White.
    15
    Holck appeared confused by the process, stating “you know we
    made . . . the revised proposal to Corey? . . . And something’s
    not smelling right.” (App. at 12256.) White assured Holck and
    Umbrell that they did not have to worry. This was good advice:
    Commerce’s new bid, which conformed to Kemp’s demand, was
    the best one and Commerce won the line of credit. The
    government presented evidence demonstrating that none of the
    other banks received any inside information about what to bid.
    The corruptness of the process was starkly described in a
    telephone call between Kemp and Reverend Frank McCracken,
    where Kemp stated:
    Listen [Commerce Bank] better take care of me man,
    I’m hooking ‘em up. Did my thing. ‘Cause, I got a
    conference call at four, three thirty and that’s on ah
    a line of credit. I got a thirty million dollar line of
    credit from Commerce Bank for the city. . . . Ah, it
    was a bid though, it was a bid. And they, um, they
    bid, they were they were like in second place right,
    so I called Steve and I said Steve, look, this is what
    you all got to beat. See, you didn’t hear it from me,
    but then they came back.
    (App. at 12557-58.)
    3.       Evidence Concerning Hawkins
    The government’s evidence against Hawkins primarily
    concerned three events: Hawkins’s providing Kemp with a check
    for $5,000 dated March 10, 2002; Hawkins’s providing Kemp
    with a check for $5,000 dated September 25, 2002; and a
    meeting that Hawkins attended with Kemp, White, and
    businessman Aslam Khan. The government focused on these
    events in an attempt to prove both that Hawkins had joined the
    conspiracy and that he had committed perjury when he
    subsequently testified about these events before a grand jury.
    The first check was dated March 10, 2002, was written on
    the account of one of Hawkins’s companies, was made out to
    Kemp, and was signed by Hawkins. The government presented
    evidence that White, but not Kemp, was present in Detroit on
    16
    March 10, that Kemp had been married 20 months prior to that
    time, and that Kemp successfully cashed the check.
    When Hawkins testified before a grand jury about
    circumstances surrounding this $5,000 check, however, he
    claimed that White and Kemp were in Detroit because White
    was throwing a bachelor party for Kemp. According to
    Hawkins, Kemp and White went to Hawkins’s office, and White
    asked Hawkins to write a $5,000 check for Kemp as a wedding
    present. Hawkins stated that the check was never cashed.
    The second check was dated September 25, 2002, and
    was written on Hawkins’s personal account. Hawkins filled out
    the entire check except for the payee information. The
    government showed that on September 25, Kemp, but not White,
    was present in Detroit. This check bounced twice, and was
    ultimately replaced by a wire transfer sent from Hawkins’s
    account to Kemp’s account. The government showed that White
    had written a check to Hawkins for $5,000 dated September 23,
    2002.
    During his grand jury testimony, Hawkins testified that
    on September 25, 2002, he and White were together in Detroit.
    He explained that he gave the check to White to give to an
    association of African-American newspapers, who had been
    helping him in ongoing litigation against Burger King. Hawkins
    stated that the $5,000 was supposed to be part of a $15,000
    donation that he had promised to the association. When asked
    why White had so recently written Hawkins a check for $5,000,
    Hawkins answered that the check could either have been to
    reimburse him for the first check he wrote to Kemp or to repay
    part of the $40,000 that Hawkins had loaned to White. Hawkins
    testified that the loan had been made from cash that he kept in
    his drawer.
    The third salient event concerned a business meeting
    between Hawkins, Khan, Kemp, and White. As background, the
    government showed that in 2002, Hawkins joined a venture that
    was seeking to purchase AFCE, which owned and operated
    restaurants such as Popeye’s, Church’s, and Cinnabon. The cost
    of this venture was estimated to be between $600 million and $1
    billion. To raise this capital, Hawkins sought investments from
    17
    pension funds, including Philadelphia’s fund. To that end, on
    January 22, 2003, Hawkins and other members of his group met
    in White’s office with White, Kemp, and Tony Johnson,
    Philadelphia’s chief investment officer, and attempted to
    convince Philadelphia officials to invest. Two days after that
    meeting, Hawkins rented a private jet to transport Kemp and
    White to the Super Bowl, at a cost of approximately $58,000.
    In the spring of 2003, the AFCE deal stalled, and
    Hawkins redirected his focus to acquiring almost 100 Church’s
    Fried Chicken franchises from Aslam Khan. On April 21, 2003,
    Hawkins discussed this deal with White. Hawkins explained
    that he needed to raise some money, and hoped to acquire an
    investment from Philadelphia’s pension fund, which was
    controlled by Anthony Johnson. In a May 2, 2003 phone call,
    Hawkins told White that he was going to “need you to have
    Tony [Johnson] to come to New York.” (App. at 12011.) White
    responded that if he could not get Johnson, he would bring
    Kemp; Hawkins was amenable to that alternative arrangement.
    On May 6, 2003, Hawkins called White and reminded
    him of the meeting “that I needed you to have Corey at.” (App.
    at 12033.) Hawkins explained that he just needed Kemp “to
    keep this guy in the hole,” so that he would think that Hawkins
    was “gettin’ 20 million.” (App. at 12034.)
    On May 8, 2003, Hawkins, Khan, White, and Kemp met
    in New York. Kemp, who apparently believed that the purpose
    of the meeting was to discuss the possibility of Church’s
    expanding into Philadelphia, said that he was “speaking on
    behalf of the administration,” and that “we will do whatever we
    can that’s in our power in the City’s Administration to help this
    along.” (App. at 12057-58.) Hawkins then prompted Kemp that
    first, Hawkins needed to raise $40 million to purchase the
    existing franchises. Kemp replied that he liked what he had
    heard and promised to take the proposal back to the
    administration. Kemp’s boss, Davis, testified that Kemp did not
    have the authority to talk about the city’s pension funds and that
    she would have fired him if she knew about this meeting.
    Hawkins also testified before the grand jury about this
    18
    meeting. He explained that the meeting was held because Khan
    was interested in bringing Church’s Chicken into Philadelphia,
    and he believed that White would be useful in accomplishing
    that goal. He testified that he did not know why Kemp was
    present, did not know in advance that Kemp would be there, and
    had only asked White to bring someone to the meeting who was
    familiar with the lay of the city and could describe potential
    franchise locations to Khan. Hawkins explained that Kemp had
    been present at the previous meeting in Philadelphia concerning
    Hawkins’s attempted purchase of AFCE, and had, after
    completing a market survey, reported on the opportunities that
    were available for fast-food restaurants in Philadelphia.
    4.     Evidence Concerning Knight
    Janice Knight, White’s girlfriend, was the nominal owner
    of RPC Enterprises, a printing company. The government
    presented evidence that White worked tirelessly to ensure that
    RPC was chosen as the printer for bond deals, and acted as the
    de facto president of the company. Moreover, the government
    adduced testimony that RPC lacked the equipment to perform
    printing jobs itself, and instead, farmed the jobs out to a separate
    company in New Jersey. Instead of negotiating fees with RPC,
    Kemp simply informed RPC what the city’s budget was, and
    paid RPC the maximum allotted. Thus, during the time that
    Kemp was treasurer, RPC charged the city for $308,000 of work,
    despite the fact that the New Jersey company had charged RPC
    only $89,000.
    C.     Allegations of Juror Misconduct and the Discharge
    of Juror 11
    On April 13, 2005, the case was presented to the jury. On
    April 27, 2005, the District Court discharged a juror, concluding
    that she was biased against the government.
    The District Court had received its first indication that
    something was amiss with the jury on April 18, 2005. That
    afternoon, the court received two notes from jurors. The first
    note stated:
    19
    Your honor, the following note was handed to
    me in confidence and asked that you see it. I have
    read it and can confirm the statements were made.
    The person mentioned is making the rest of
    the group retry the case in the jury room. We are at
    a stalemate in the deliberation process. Evidence is
    being produced at the juror’s request and when it is
    produced, it is being disregarded. I feel that several
    jurors are removing themselves from the deliberation
    process because they feel this effort is futile. We are
    slowly losing jurors as the days go by, not for lack of
    interest or commitment to their civic duty but for the
    fact that nothing they can do or say will matter.
    (App. at 10680.) The note also requested simple definitions of
    the terms “intent,” “reasonable doubt,” and conspiracy.”
    The second note stated:
    Dear Foreperson: I have concerns regarding
    our deliberations. I feel I must keep an open mind,
    evaluate the evidence and make an effort to remain
    neutral. When the following comments are made by
    a fellow juror, I have concerns about that person’s
    motivation and honesty.
    1. “The government lies. They always lie.”
    2. “English is his second language – he didn’t
    understand what he was saying.”
    3. “How would you be!               She was having
    chemotherapy!”
    4. “I’ve interviewed many people and I know when
    they are on drugs.”
    I have tried to pass RPC book from RW’s
    office to the person, they refuse to look at what I was
    referring to, sat back in chair, closed eyes and
    folding their arms across their chest.
    I also resent the statement you are all
    benefitting from Ron White – two months of my
    civic duty should be ended with conversations with
    fellow jurors that have open minds. Perhaps I am
    trying to be too open minded. Any suggestions?
    20
    (App. at 10691-92.)
    In response to these notes, the judge called the jury into
    the courtroom. Then, before re-instructing the jurors on intent,
    reasonable doubt, and conspiracy, he stated:
    You have been terrific citizens. You have
    given up your daily lives to come in here and
    perform your civic duty. That is very, very
    important. That is appreciated by everyone. When
    you became jurors, you took an oath and your oath
    was to follow the law and part of that oath is to
    deliberate, and you must, as part of that oath,
    deliberate with each other and discuss the evidence
    and discuss the law and try to reach a verdict.
    Now, in trying to reach a verdict, you should
    not give up any beliefs which you have that you
    believe are true and sincere and that you hold to be
    warranted as a result of sitting as jurors and listening
    to this case for the last eight weeks.
    At the same time though, it is your duty and
    obligation as jurors to listen to what the other jurors
    say and to consider their arguments, to consider what
    they recall about the evidence, to consider what they
    recall about the law, to consider their evaluation of
    the witnesses and you should listen to each other and
    they should listen to you. So it’s important that, in
    the deliberative process, that all of you engage in this
    process of deliberating but if you have a sincere
    belief that the others are wrong and you are right,
    you are entitled to hold on to that and maintain that
    but you still have the duty to deliberate and discuss
    with each other what you believe the evidence is and
    why you believe it. That is part of the duty of each
    juror to deliberate and if you still, after doing that,
    you still have your own sincere belief and you
    believe you are right, you are entitled to maintain it
    but please remember, the duty to deliberate is part of
    your oath as being jurors.
    (App. at 10699-700.)
    21
    The following day, the judge received two more notes.
    The first note stated:
    I am finding it very difficult to deliberate with a
    juror who will not acknowledge any of the evidence.
    The juror has made comments when presented with
    the evidence, “show it to someone who cares.” The
    juror has continually referred to notes and used them
    as the evidence, also crosses arms over chest, leans
    back into chair and closes eyes and will not look
    over the evidence. Has made comments about
    “government lying.” “FBI is biased.” And “one
    defendant has been on chemotherapy” and 11 of us
    are benefitting from Ron White, (i.e. the payment we
    are receiving from jury duty), using analogies that
    does not pertain to anything.
    (App. at 10739.)
    The second note stated:
    I’m concerned with one of my fellow jurors’
    comments during deliberations. I know every juror
    has their right to state feelings and opinions. Some
    of the remarks that I’ve hear from one individual
    makes me feel as though there is more bias than
    normal deliberations, comments such as,
    1. Prosecutors and FBI agents are liars.
    2. Using sympathy and feelings as factors in
    deliberations.
    3. Saying all the jurors are receiving benefits,
    courtesy of Ron White.
    I don’t know if I should be doing this but if I didn’t,
    I don’t think justice was served.
    (App. at 10739-40.)
    After receiving this note, the court heard argument from
    all counsel, and resolved to question each juror individually.
    The court asked three questions of each juror, in camera: (1)
    “Are you personally experiencing any problems with how the
    22
    deliberations are proceeding without telling us anything about
    the votes as to guilt or innocence? If yes, describe the problem.”
    (2) “Are all the jurors discussing the evidence or lack of
    evidence?” (3) “Are all the jurors following the court’s
    instructions on the law?” (App. at 10758.) The jurors’
    responses may be summarized as follows:
    Juror 1: There was a problem at one point, but at the
    moment all jurors were acting appropriately.
    Juror 2: Juror 11 was very prejudiced against
    individuals based on their occupation.
    Juror 3: While deliberations were stressful, all jurors
    were acting appropriately.
    Juror 4: All jurors were properly discussing the
    evidence or lack of evidence, but sometimes certain
    jurors refused to look at evidence that other jurors
    found pertinent.
    Juror 5: All jurors were acting appropriately.
    Juror 6: All jurors were acting appropriately.
    Juror 7: All jurors were acting appropriately.
    Juror 8: Juror 11 was refusing to consider evidence.
    Juror 9: Juror 11 sometimes refused to look at
    evidence presented by other jurors, and was
    reasoning illogically. However, the jurors had made
    a break that day and it seemed that the deliberations
    were progressing.
    Juror 10: All jurors were acting appropriately.
    Juror 11: The jurors were making progress.
    Juror 12: All jurors were considering the evidence,
    but one juror said that the prosecutors were lying and
    that all jurors were receiving benefits from Ron
    White.
    The District Court decided, on the basis of these
    responses, that no further instructions were necessary. The next
    day the judge received a note stating “the hearing in your
    chambers has helped facilitate the deliberations.” (App. at
    10791.)
    Despite these glad tidings, on April 25, the jurors passed a
    note to the judge stating:
    23
    Your Honor, deliberations have stopped! One of the
    jurors has changed their mind over the weekend on
    several counts that were decided last Thursday. The
    reasons stated by the juror are illogical. The
    following jurors do not believe further deliberations
    will be at all beneficial. It is unfair to the
    defendants, the lawyers, and the people of
    Philadelphia to continue deliberations in this manner.
    (App. at 10862.7.) The note was signed by nine jurors.
    Based on this note, the court decided to question the
    jurors individually a second time. The judge asked each juror:
    (1) “Is there any juror or jurors who are refusing to deliberate?”
    (2) “Is there any juror who is refusing to discuss the evidence or
    lack of evidence?” (3) “Is there any juror who is refusing to
    follow the Court’s instructions?”
    (App. at 10862.20.)
    The jurors’ responses are as follows:
    Juror 1: Juror 11 did not seem to be deliberating, but
    was discussing the evidence and following the
    instructions.
    Juror 2: Juror 11 was not cooperating and was
    refusing to discuss the evidence.
    Juror 3: Three jurors were refusing to listen to the
    others, with Juror 11 particularly culpable.
    Juror 4: Juror 11 was refusing to deliberate and
    discuss the evidence.
    Juror 5: One juror was refusing to deliberate.
    Juror 6: All jurors were acting appropriately.
    Juror 7: Juror 11 was refusing to follow the court’s
    instructions.
    Juror 8: Juror 11 was refusing to deliberate and
    discuss the evidence.
    Juror 9: Juror 11 was refusing to discuss the
    evidence.
    Juror 10: All jurors were acting appropriately.
    Juror 11: One or two jurors seemed to feel that they
    were done talking about certain topics.
    24
    Juror 12: Juror 11 was refusing to deliberate and
    discuss the evidence.
    Immediately after completing this voir dire, the judge
    received a note stating that “the jury did not feel the right
    questions were asked.” (App. at 10862.43.) The jurors
    suggested the following questions:
    1. Why have the jurors stopped deliberating?
    2. Are jurors looking at the evidence logically and
    forming a reasonable opinion about each individual
    count?
    3. Have jurors entered into deliberations with
    preconceived notions or prejudices?
    4. Can you summarize the deliberations and how you
    feel they are progressing?
    5. Are jurors using emotions rather than evidence to
    rule on certain counts? Most counts?
    6. Your Honor, is it possible to allow the jurors to
    expand on their answers?
    (App. 10862.43-44.) Upon receiving this note, the judge
    dismissed the jury for the day to allow himself time to consider
    how to proceed.
    The next day, the judge provided additional instructions
    to the jurors. The judge first told the jurors that the questions he
    had asked the day before were “the only questions which [he felt
    he was] entitled to ask at that time,” so as to avoid intruding into
    the jury deliberations. (App. at 10874.) He stated, however, that
    he could “ask questions to [ensure] that all of you are following
    your oaths as jurors, that you are reviewing the evidence, that
    you are deliberating with each other and that you are following
    my instructions.” (App. at 10876.) The judge then reminded the
    jurors that they were under oath, and that they had promised to
    decide the case fairly and impartially without being swayed by
    either the race or the occupation of the defendants and witnesses.
    The judge reiterated that the jurors were prohibited from using
    prejudice or bias in making decisions, and explained that if any
    juror did so, that juror was not following his instructions. The
    court also re-instructed the jurors about their duty to deliberate,
    25
    but emphasized that “if you come to different views of the facts,
    you are entitled to maintain those views as long as you consider
    the views of others.” (App. at 10882.)
    The next day (April 27), the judge received three notes.
    The first asked legal questions. The second was from Juror 11,
    and stated:
    Is it permissible to discuss the fact that we
    have heard only selected portions of selected phone
    calls and to try to evaluate what this might mean in
    determining what was going on and what people
    intended to do?
    Can you consider omitted evidence – for
    example, the prosecution only showed us what they
    wanted to show?
    Is it permissible to try to illustrate how two
    people might understand a conversation differently?
    (App. at 10896.)
    The third note asked two preliminary questions, and then
    stated, “How do we inform the court a juror has violated his or
    her oath (i.e., biased against the government. States prosecution
    makes up stories).” (App. at 10896.) The court then instructed
    the jury about the legal questions contained in the notes, and
    concluded: “Ladies and gentlemen, as I said yesterday, bias is a
    violation of a juror’s oath. If one of you or more of you believe
    that a juror is biased against the government, I instruct you to
    send me another note, saying that you believe that, and then the
    remedy is that I will have the jury come into the conference
    room again, one by one.” (App. 10922.) After hearing
    argument from counsel, the court clarified a few points with the
    jurors, including the bias instruction. The court stated:
    I want to make it clear that when we talk about bias
    . . . we are talking about bias against a specific type
    of person or against a specific occupation or bias
    against the prosecution and that the juror is unwilling
    to put aside that bias. If the juror or jurors say, they
    don’t believe someone or a particular piece of
    26
    evidence, that is not bias. That is just a discussion
    on the evidence presented in the case. But as I said
    before, if there are jurors who believe that a juror is
    unwilling to put aside bias, is using bias, that is
    something you should send me a note about . . . .
    (App. at 10935-36.)
    Soon afterward, the court received two more notes. The
    first stated:
    I believe the following statements reflect bias by a
    juror: The government lies. The prosecution made
    it up. They couldn’t get Ron White so they made
    this up about Corey Kemp. They didn’t play all of
    the calls. They omitted evidence. You didn’t hear
    what they didn’t want you to hear. The FBI lies.
    The government didn’t present the evidence to prove
    anything.
    (App. at 10949.) The second note, signed by the foreman, stated
    simply, “[A]sk the three questions again in your chambers.”
    (App. at 10949.) Based on these notes, the court conducted
    another individual voir dire, which yielded the following
    information:
    Juror 1: Juror 11 refused to deliberate and discuss
    the evidence, and would not put aside her bias.
    Juror 2: Juror 11 refused to deliberate and discuss
    the evidence, and was very prejudiced against the
    government. Juror 2 also stated: “You just can’t talk
    to [Juror No. 11]. She goes nuts. She starts banging
    on the table. She won’t listen to us. Won’t let
    anybody get a word in edge-wise. . . . If we present
    her with evidence, she flips through her notes and
    does not want to hear any evidence.” Juror 2 went
    on to emphasize that “[Juror No. 11] is totally
    against the government. We have heard her say, the
    FBI are nothing but a bunch of liars.”
    Juror 3: Three jurors had a difficult time listening to
    each other, but Juror 11 just shut down and refused
    27
    to look at evidence that was shown to her. Juror 11
    was also off task and biased against the FBI and the
    government. Juror 3 also stated: “People disagree on
    a lot of things. But when the arguments are with 11,
    it’s just like slamming your head into a wall.”
    Juror 4: Juror 11 refused to deliberate or discuss the
    evidence, and was biased.
    Juror 5: All jurors were deliberating and discussing
    evidence, but Juror 11 was “a bit biased, not tending
    enough to the evidence and instructions.”
    Juror 6: All jurors were deliberating, and Juror 11
    was not biased, but did refuse to look at the
    evidence.
    Juror 7: All jurors were deliberating, but Juror 11
    was refusing to discuss the evidence. Further, Juror
    11 was biased to a point concerning witnesses’s
    occupations and was allowing that to cloud her
    judgment. However, she was not letting it affect her
    “that much.”
    Juror 8: Juror 11 was refusing to deliberate and
    would not look at any evidence. She also was biased
    and unable to put that bias aside.
    Juror 9: Juror 11 was refusing to deliberate and
    would not look at evidence that was presented to her.
    Juror 11 also held prejudices against the government
    or the FBI, and was unwilling to put those prejudices
    aside.
    Juror 10: Juror 11 refused to deliberate, ignored
    evidence, carried a personal agenda, and was biased.
    Juror 11: No jurors were refusing to deliberate or
    discuss the evidence. However, some people had
    difficulty focusing on the specific elements of a
    crime instead of just concluding that a defendant was
    guilty because the juror disapproved of the
    defendant’s behavior.        The jurors had been
    attempting to rule on guilt or innocence count by
    count, which was difficult for her, because so many
    of the issues were interrelated. Once the jury began
    to evaluate evidence on a different issue, Juror 11
    said, “[W]ait a minute here, this contradicts what we
    agreed to back here. . . . I agreed with you about
    28
    here now I’m looking at this evidence and I don’t
    think that is there anymore.” All the jurors were
    working to put aside their biases. When asked
    whether she was biased against the FBI, Juror 11
    responded that she didn’t think so, and that her
    comments concerning the FBI were made only to
    refute another juror’s statement that they only had to
    consider the FBI’s evidence. She had not claimed
    that FBI agents always lie; instead, she had said that
    they are “probably accomplished liars” from doing
    undercover work, and that they are therefore
    probably skilled at detecting when someone is lying
    to them.
    Juror 12: Juror 11 was refusing to deliberate or
    discuss evidence, and was biased against law
    enforcement. Speaking of Juror 11’s bias, Juror 12
    stated that “it’s not the witnesses in the trial. It’s the
    preconceived notion that law enforcement lies, they
    are telling lies.”
    Juror 11 then asked to return to clarify her previous
    statements. She stated that she had actually said that she
    “thought FBI agents were among the most credible witnesses
    because they were careful to say what they believed to be the
    truth and to distinguish fact from opinion.” (App. at. 11062.)
    She also claimed to have said that one agent may have been
    biased going into his interview with Janice Knight because he
    had previously heard so much incriminatory information about
    her.
    To recap, eight jurors (1-4, 8-10, 12) stated in clear terms
    that Juror No. 11 violated her duty to deliberate in good faith and
    to be free of preconceived biases that informed her decision-
    making. Juror No. 11 denied any allegations of bias or a refusal
    to deliberate. Juror No. 5 stated that no juror was refusing to
    deliberate or discuss the evidence/lack of evidence, and that all
    the jurors were following the District Court’s instructions. This
    juror also stated that Juror No. 11 was “a bit biased, not tending
    enough to the evidence and instructions, but we are working on
    that.” Juror No. 6 stated that Juror No. 11 was not refusing to
    follow the instructions, and that she was not biased either.
    29
    However, Juror No. 6 did note that Juror No. 11's answers were
    “pretty much set in stone,” making it “hard to show her the
    evidence.” Juror No. 7 stated that no juror was refusing to
    deliberate, although he believed that Juror No. 11 refused to
    consider the evidence or lack of evidence. Juror No. 7 also
    noted that Juror No. 11 expressed bias against certain
    occupations.
    Based on these responses, the court granted the
    government’s motion to discharge Juror 11. The court stated:
    We have 11 out of the 12 jurors have made
    affirmative responses to at least one of the questions
    that I posited to them concerning juror number 11. .
    . . I find that the other 11 jurors are more credible
    than juror number 11. And to put it bluntly, I find
    that juror number 11 is in denial. She is articulate
    but she is not credible. You cannot balance her
    testimony that she made here against 11 of her
    fellow jurors. I find that they are more credible than
    she is, and I find that she is biased against the
    government. . . . I find that she has come in here and
    tried to articulate using an educated background.
    She is articulate but she is in total denial of what I
    find to be the facts as expressed by the other 11
    jurors . . . .
    (App. at 11079-80.)
    The District Court then seated an alternate juror who had
    been sequestered during the first round of deliberations.
    D.     The Verdict
    On May 10, 2005, the reconstituted jury returned its
    verdict. Kemp was convicted of conspiracy, seven counts of
    wire fraud, 11 counts of mail fraud, one count of attempted
    extortion, one count of extortion, two counts of making false
    statements to a bank, and four counts of filing a false income tax
    return; Hawkins was convicted of one count of wire fraud and
    three counts of perjury; Holck and Umbrell were convicted of
    30
    conspiracy and two counts of wire fraud; and Knight was
    convicted of two counts of making false statements to the FBI.
    The jury also acquitted the defendants or was unable to reach a
    verdict on a number of charges.10
    Ultimately, the District Court sentenced Kemp to 120
    months’ imprisonment, Holck to 28 months’ imprisonment,
    Umbrell to 27 months’ imprisonment, Hawkins to 33 months’
    imprisonment, and Knight to 5.5 months’ imprisonment. All
    five defendants then filed timely appeals.
    II.
    We have jurisdiction of an appeal from a judgment of
    conviction pursuant to 28 U.S.C. § 1291.
    III.
    The appellants challenge their convictions on many
    grounds. Kemp argues that the government failed to present
    sufficient evidence to support his convictions for mail fraud
    relating to his asset-locator business. Holck and Umbrell
    challenge their wire fraud convictions by arguing that the
    indictment failed to state an offense, the District Court
    erroneously instructed the jury, and the government presented
    insufficient evidence to sustain the convictions. Holck and
    Umbrell also argue that their conspiracy convictions must be
    vacated because there was a prejudicial variance between the
    10
    The jury found Kemp not guilty of eight counts of wire
    fraud, one count of making false statements to a bank, and four
    counts of money laundering; Hawkins not guilty of conspiracy,
    three counts of wire fraud, and one count of perjury; Holck and
    Umbrell not guilty of three counts of wire fraud; and Knight not
    guilty of one count of wire fraud. The jury was unable to reach a
    verdict as to Kemp on four counts of wire fraud and one count of
    mail fraud; as to Holck and Umbrell on two counts of wire fraud
    and one count of mail fraud; and as to Knight on the conspiracy
    charge, two counts of wire fraud, and one count of making false
    statements to the FBI. The government withdrew one count of
    wire fraud against Kemp, Holck, and Umbrell.
    31
    crime charged in the indictment and the evidence adduced at
    trial. Hawkins claims that the government presented insufficient
    evidence to support his convictions for wire fraud and perjury,
    that the District Court’s jury instructions on wire fraud omitted
    an essential element, and that the Court wrongly admitted
    several forms of unfairly prejudicial evidence. Finally, all
    appellants contend that the District Court erred by individually
    questioning the jurors upon receiving complaints of juror
    misconduct and then discharging Juror 11. We consider each of
    these sundry claims in turn.
    A.     Kemp’s Mail Fraud Convictions
    Kemp claims that the government presented insufficient
    evidence to support his convictions for honest services mail
    fraud concerning his role in the asset-locator business for which
    he received $1,300. We review sufficiency-of-the-evidence
    challenges with particular deference to the jury’s verdict. United
    States v. Dent, 
    149 F.3d 180
    , 187 (3d Cir. 1998). Because Kemp
    did not raise this argument to the District Court in his motion for
    acquittal, we review for plain error. United States v. Vampire
    Nation, 
    451 F.3d 189
    , 203 (3d Cir. 2006). Plain error requires:
    “(1) an error; (2) that is plain; and (3) that affected substantial
    rights.” 
    Id. As we
    will explain, the jury’s conclusion on this
    count was supported by the evidence and not plain error.
    To prove mail fraud, the government must establish “(1)
    the defendant’s knowing and willful participation in a scheme or
    artifice to defraud, (2) with the specific intent to defraud, and (3)
    the use of the mails . . . in furtherance of the scheme.” United
    States v. Antico, 
    275 F.3d 245
    , 261 (3d Cir. 2001). Congress has
    clarified that “the term ‘scheme or artifice to defraud’ includes a
    scheme or artifice to deprive another of the intangible right of
    honest services.” 18 U.S.C. § 1346. Honest services fraud, in
    turn, typically occurs in either of two situations: “(1) bribery,
    where a [public official] was paid for a particular decision or
    action; or (2) failure to disclose a conflict of interest resulting in
    personal gain.” 
    Antico, 275 F.3d at 262-63
    . The government
    pursued both of these discrete theories in prosecuting the mail
    fraud counts at issue.
    32
    Kemp maintains that his convictions must be vacated
    because the government presented insufficient evidence to prove
    honest services fraud under either the bribery theory or the
    failure-to-disclose theory.11 Because Kemp challenges the
    sufficiency of the evidence of these two theories, and has not
    argued that either was legally invalid or unconstitutional, we will
    affirm if the evidence is sufficient to support a judgment on
    either theory. See United States v. Syme, 
    276 F.3d 131
    , 144 (3d
    Cir. 2002) (explaining that “if the evidence is insufficient to
    support a conviction on one alternative theory in a count but
    sufficient to convict on another alternative theory that was
    charged to the jury in the same count, then a reviewing court
    should assume that the jury convicted on the factually sufficient
    theory and should let the jury verdict stand”).
    Here, a reasonable jury could conclude beyond a
    reasonable doubt that Kemp “was paid for a particular decision
    or action,” 
    Antico, 275 F.3d at 263
    , and thus convict him of
    honest services fraud under a bribery theory. The government
    presented evidence that Kemp and Anderson had an arrangement
    where Anderson would locate owners of unredeemed city bonds
    and attempt to help them cash their bonds. This project required
    Kemp to exercise his authority as treasurer: he provided
    Anderson with a list of holders of outstanding bonds and a form
    letter for her to use; also, the treasurer’s office was responsible
    for contacting the banks to facilitate the ultimate repayment.
    When Anderson was asked at trial what Kemp would contribute
    to the business to earn his share of its proceeds, she identified
    only these first two official actions. A reasonable jury certainly
    could have concluded that Kemp was paid for the reasons that
    Anderson pinpointed – taking official action that aided the
    business.
    Kemp argues that he was paid not for taking particular
    actions but because he held a stake in the business. However,
    11
    Kemp does not dispute that as treasurer, he was a public
    official who owed a duty to provide honest services to the public.
    See 65 Pa. Cons. Stat. § 1102; see also 
    Antico, 275 F.3d at 262
    n.18.
    33
    Anderson testified that the company was formally owned by her
    and a friend, and not Kemp. While Kemp did suggest the idea of
    the asset-locator business to Anderson, a reasonable jury could
    have found it more likely that Kemp was paid $1,300 for taking
    actions in favor of the business than for providing an inchoate
    idea.
    We have repeatedly recognized that accepting money in
    exchange for an official action is a form of honest services
    fraud.12 See United States v. Panarella, 
    277 F.3d 678
    , 690 (3d
    Cir. 2002); 
    Antico, 275 F.3d at 262-63
    . As Pennsylvania law
    provides, “public office is a public trust and . . . any effort to
    realize personal financial gain through public office other than
    compensation provided by law is a violation of that trust.” 65
    Pa. Cons. Stat. § 1101.1. Here, the government presented
    sufficient evidence for a reasonable jury to find beyond a
    reasonable doubt that Kemp violated that trust by soliciting and
    accepting payment in exchange for taking official action.
    Accordingly, we find no plain error and reject Kemp’s challenge
    to his mail fraud convictions.
    B.     Holck’s and Umbrell’s Wire Fraud Convictions
    1.      Challenge to the Indictment
    Holck and Umbrell lead off their attack on their wire
    fraud convictions by arguing that their convictions under the
    bribery theory of honest services fraud must be vacated because
    that theory was not charged in the indictment. We deem an
    indictment sufficient so long as it “(1) contains the elements of
    12
    This case is distinguishable from United States v.
    McNeive, 
    536 F.2d 1245
    (8th Cir. 1976), where the Eighth Circuit
    concluded that a chief plumbing inspector’s acceptance of
    unsolicited gratuities that were attached to applications for permits
    that required only ministerial action did not amount to honest
    services fraud. 
    Id. at 1251.
    Even if Kemp’s actions here were
    largely ministerial, Kemp’s role in setting the scheme in motion
    and then demanding payment was of a far more insidious order
    than the passive behavior of the defendant in McNeive.
    34
    the offense intended to be charged, (2) sufficiently apprises the
    defendant of what he must be prepared to meet, and (3) allows
    the defendant to show with accuracy to what extent he may
    plead a former acquittal or conviction in the event of a
    subsequent prosecution.” United States v. Vitillo, --- F.3d ----,
    
    2007 WL 1805332
    (3d Cir. 2007) (internal quotation marks
    omitted). Moreover, “no greater specificity than the statutory
    language is required so long as there is sufficient factual
    orientation to permit the defendant to prepare his defense and to
    invoke double jeopardy in the event of a subsequent
    prosecution.” United States v. Rankin, 
    870 F.2d 109
    , 112 (3d
    Cir. 1989). We exercise plenary review over this challenge.
    United States v. Hedaithy, 
    392 F.3d 580
    , 590 n.10 (3d Cir.
    2004).
    We conclude that the indictment here adequately charged
    Holck and Umbrell with the bribery theory of honest services
    wire fraud. The wire fraud counts of the indictment (counts 15-
    22) plainly alleged honest services fraud, charging Holck and
    Umbrell with engaging in “a scheme to defraud the City of
    Philadelphia and its citizens of the right to defendant COREY
    KEMP’S honest services in the affairs of the City of
    Philadelphia.” (App. at 587.) Then, the specific factual
    allegations – some of which were incorporated by reference to
    the allegations of the conspiracy charge, see Fed. R. Crim. P.
    7(c)(1) (“A count may incorporate by reference an allegation
    made in another count.”); see also United States v. Markus, 
    721 F.2d 442
    , 444 (3d Cir. 1983) – were sufficient to alert Holck and
    Umbrell that the government planned to pursue both theories.
    The indictment refers to “the benefits that HOLCK and
    UMBRELL extended to Kemp with the intent to influence
    KEMP’s official actions” (App. at 491), and charges that
    “defendants GLENN K. HOLCK and STEPHEN M.
    UMBRELL, on behalf of their employer, Commerce Bank,
    provided benefits to Kemp in the form of otherwise unavailable
    loans in exchange for favorable decisions by KEMP as Treasurer
    of Philadelphia” (App. at 554). These allegations were sufficient
    to charge Holck and Umbrell with honest services fraud under a
    bribery theory, and accordingly, we reject Holck and Umbrell’s
    argument that the indictment should have been dismissed.
    35
    2.     The “Stream of Benefits” Instruction
    Holck and Umbrell next claim that the District Court
    misstated the law when instructing the jury on the bribery theory
    of honest services fraud, such that the jury was invited to convict
    if it concluded that Holck and Umbrell had provided benefits to
    Kemp in a “general attempt to curry favor.” We exercise
    plenary review over whether the District Court correctly stated
    the law, and consider “whether the charge, taken as a whole,
    properly apprise[d] the jury of the issues and the applicable
    law.” Armstrong v. Burdette Tomlin Mem’l Hosp., 
    438 F.3d 240
    , 245 (3d Cir. 2006) (alteration in original) (internal
    quotation marks omitted).
    While we agree with Holck and Umbrell that bribery may
    not be founded on a mere intent to curry favor, we nevertheless
    reject their challenge to the District Court’s instructions. As
    Holck and Umbrell recognize, there is a critical difference
    between bribery and generalized gifts provided in an attempt to
    build goodwill. The Supreme Court has explained, in
    interpreting the federal bribery and gratuity statute, 18 U.S.C. §
    201, that bribery requires a quid pro quo, which includes an
    “intent ‘to influence’ an official act or ‘to be influenced’ in an
    official act.” United States v. Sun-Diamond Growers of Cal.,
    
    526 U.S. 398
    , 404 (1999) (quoting 18 U.S.C. § 201(b)). This
    may be contrasted to both a gratuity, which “may constitute
    merely a reward for some future act that the public official will
    take (and may already have determined to take), or for a past act
    that he has already taken,” and to a noncriminal gift extended to
    a public official merely “to build a reservoir of goodwill that
    might ultimately affect one or more of a multitude of unspecified
    acts, now and in the future.” 
    Id. at 405.
    This discussion is
    equally applicable to bribery in the honest services fraud context,
    and we thus conclude that bribery requires “a specific intent to
    give or receive something of value in exchange for an official
    act.” 
    Id. at 404-05.
    Holck and Umbrell arrive at their conclusion that this
    requirement was elided by the instructions only by reading
    certain sections of the jury charge out of context, which “is not
    the way we review jury instructions, because a single instruction
    36
    to a jury may not be judged in artificial isolation, but must be
    viewed in the context of the overall charge.” United States v.
    Park, 
    421 U.S. 658
    , 674 (1975). Read fairly, the instructions
    proffered by the District Court repeatedly emphasized the critical
    quid pro quo, explaining that “[t]o establish such bribery the
    government must prove beyond a reasonable doubt that there
    was a quid pro quo, . . . that the benefit was offered in exchange
    for the official act.” (App. at 9642.) The Court continued,
    “where there is a stream of benefits given by a person to favor a
    public official, . . . it need not be shown that any specific benefit
    was given in exchange for a specific official act. If you find
    beyond a reasonable doubt that a person gave an official a
    stream of benefits in implicit exchange for one or more official
    acts, you may conclude that a bribery has occurred.” (App. at
    9643.) Finally, the Court explained, “[t]o find the giver of a
    benefit guilty, you must find that the giver had a specific intent
    to give . . . something of value in exchange for an official act,
    that is, that the accused had the specific intent to engage in such
    a quid pro quo exchange.” (App. at 9643-44.) This instruction
    correctly described the law of bribery, and left no danger that the
    jury would convict upon merely finding that Holck and Umbrell
    provided benefits to Kemp in a general attempt to curry favor or
    build goodwill.
    Moreover, we agree with the government that the District
    Court’s instruction to the jury that it could convict upon finding
    a “stream of benefits” was legally correct. The key to whether a
    gift constitutes a bribe is whether the parties intended for the
    benefit to be made in exchange for some official action; the
    government need not prove that each gift was provided with the
    intent to prompt a specific official act. See United States v.
    Jennings, 
    160 F.3d 1006
    , 1014 (4th Cir. 1998). Rather, “[t]he
    quid pro quo requirement is satisfied so long as the evidence
    shows a ‘course of conduct of favors and gifts flowing to a
    public official in exchange for a pattern of official actions
    favorable to the donor.” 
    Id. Thus, “payments
    may be made with
    the intent to retain the official’s services on an ‘as needed’ basis,
    so that whenever the opportunity presents itself the official will
    take specific action on the payor’s behalf.” Id.; see also United
    States v. Sawyer, 
    85 F.3d 713
    , 730 (1st Cir. 1996) (stating that “a
    person with continuing and long-term interests before an official
    37
    might engage in a pattern of repeated, intentional gratuity
    offenses in order to coax ongoing favorable official action in
    derogation of the public’s right to impartial official services”).
    While the form and number of gifts may vary, the gifts still
    constitute a bribe as long as the essential intent – a specific intent
    to give or receive something of value in exchange for an official
    act – exists. This theory was accurately and entirely presented to
    the jury in the jury instructions, and accordingly, we reject Holck
    and Umbrell’s argument that the instructions as proffered were
    inadequate.
    3. Legal Validity of Failure to Disclose Theory
    Holck and Umbrell next present three arguments that the
    District Court’s jury instructions concerning the failure-to-
    disclose theory of honest services fraud were legally erroneous.
    If, as Holck and Umbrell argue, the alternative theory is legally
    invalid, we must vacate their convictions. See 
    Syme, 276 F.3d at 144
    . Our review over whether the District Court correctly stated
    the law is plenary. 
    Armstrong, 438 F.3d at 245
    . For the reasons
    discussed below, we conclude that the District Court correctly
    charged the jury.
    Holck and Umbrell first argue that the jury instructions
    were inconsistent with our decision in Panarella. According to
    Holck and Umbrell, when we held in Panarella that a “public
    official who conceals a financial interest in violation of state
    criminal law while taking discretionary action that the official
    knows will directly benefit that interest commits honest services
    
    fraud,” 277 F.3d at 694
    , we ruled that the discretionary action
    must benefit the public official himself, and not the person or
    organization that provided the benefit. They thus argue that the
    District Court’s instructions, which permitted the jury to convict
    upon finding that Kemp took “a discretionary official action
    benefitting the giver of the benefit” (App. at 9644), wrongly
    stated the law.
    A complete analysis of Panarella plainly demonstrates
    the defectiveness of Holck and Umbrell’s position. In
    Panarella, Loeper, while Majority Leader of the Pennsylvania
    Senate, worked as a business consultant for a tax collection
    38
    business. 
    Id. at 681.
    Loeper failed to disclose his income from
    the business as required by state law, and spoke and voted
    against bills that would have harmed that business. 
    Id. We held
    that this conduct constituted honest services fraud, and
    emphasized the importance of disclosing conflicts of interest.
    
    Id. at 696-97.
    We explained:
    Were it easy to detect and prosecute public officials
    for bribery, the need for public officials to disclose
    conflicts of interest would be greatly reduced. . . .
    One reason why federal and state law mandates
    disclosure of conflicts of interest, however, is that it
    is often difficult or impossible to know for sure
    whether a public official has acted on a conflict of
    interest. The only difference between a public
    official who accepts a bribe and a public official who
    receives payments while taking discretionary action
    that benefits that payor, as Loeper did in this case, is
    the existence of a quid pro quo whereby the public
    official and the payor agree that the discretionary
    action taken by the public official is in exchange for
    payment. Recognizing the practical difficulties in
    proving the existence of such a quid pro quo,
    disclosure laws permit the public to judge for itself
    whether an official has acted on a conflict of interest.
    
    Id. at 697
    (emphasis added) (citation omitted). This explanation
    is consistent with our opinion in Antico, where we emphasized,
    broadly, the duty of a public official “to disclose material
    information affecting an official’s impartial 
    decision-making.” 275 F.3d at 264
    . Accordingly, we reject Holck and Umbrell’s
    argument that the discretionary action must directly benefit the
    public official, and hold that honest services fraud encompasses
    a situation where a public official conceals a financial interest in
    violation of state criminal law while taking discretionary action
    that the official knows will directly benefit the individual or
    organization behind that financial interest. We thus reject Holck
    and Umbrell’s challenge on this front.
    Holck and Umbrell next argue that the jury instructions
    misstated the law because they did not require the jury to find
    39
    that Holck and Umbrell failed to disclose a financial interest in
    violation of a state criminal law. However, this argument
    misapprehends Pennsylvania’s statutory structure. The District
    Court read to the jury the provisions of 65 Pa. Cons. Stat. §
    1103(a)-(c), all of which are felonies. See 65 Pa. Cons. Stat. §
    1109(a). Thus, we also reject this claim.
    Finally, Holck and Umbrell contend that the District
    Court’s instructions about the species of loans that public
    officials are required to report were incomplete. They argue that
    in addition to the proffered instructions, which stated that “a
    commercially reasonable loan made in the ordinary course of
    business” is exempt from the reporting requirement,13 the
    District Court should have informed the jury that “the financial
    terms of the loan must be below-market or that the loan must be
    outside the ordinary course of business.”
    To the extent that the language proposed by Holck and
    Umbrell adds anything to the District Court’s instruction, we
    conclude that the District Court was not obligated to include it.
    Holck and Umbrell’s authority for their position – 4 Pa. Code §
    7.153(b)(3) and Executive Order No. 16-92 – concerns gifts that
    public officials are prohibited from accepting, and are thus
    inapposite here. The crucial issue is whether Kemp was required
    to report the loans; whether he was entitled to accept the loans is
    a different matter altogether. Accordingly, we conclude that the
    District Court correctly and fully14 instructed the jury about the
    13
    These instructions were consistent with Pennsylvania
    law, which requires public officials to report “[t]he name and
    address of the source and the amount of any gift or gifts valued in
    the aggregate at $250 or more and the circumstances of each gift,”
    65 Pa. Cons. Stat. § 1105(b)(6); in defining “gift,” the statute
    excludes from the general definition “a commercially reasonable
    loan made in the ordinary course of business,” §§ 1102, 13A03.
    14
    The District Court instructed the jury that to determine
    whether the loans provided by Kemp were gifts that were required
    to be reported, it should consider “whether defendant Holck and/or
    defendant Umbrell followed established Commerce Bank
    40
    governing law concerning loans.
    4.      Sufficiency of the Evidence for Bribery Theory
    Holck and Umbrell’s final challenge to their honest
    services wire fraud convictions is that the government presented
    insufficient evidence to sustain those convictions under a bribery
    theory. According to Holck and Umbrell, the government failed
    to prove: (1) that they made a payment to Kemp; (2) that they
    received a benefit from Kemp; and (3) that the two were directly
    connected. As noted above, we will “view the evidence in the
    light most favorable to the Government and sustain the verdict if
    any rational juror could have found the elements of the crime
    beyond a reasonable doubt.” United States v. Cartwright, 
    359 F.3d 281
    , 286 (3d Cir. 2004) (internal quotation marks omitted).
    As we held above, bribery requires a specific intent to
    give or receive something of value in exchange for an official
    act. We note that evidence of a “quid pro quo can be implicit,
    that is, a conviction can occur if the Government shows that [the
    defendant] accepted payments or other consideration with the
    implied understanding that he would perform or not perform an
    act in his official capacity.” 
    Antico, 275 F.3d at 257
    . As we
    have recognized, “‘the official and the payor need not state the
    quid pro quo in express terms, for otherwise the law’s effect
    could be frustrated by knowing winks and nods.’”15 
    Id. at 258
    (quoting United States v. Bradley, 
    173 F.3d 225
    , 231 (3d
    procedures applicable for similar loans, whether they intended to
    give a benefit or gift to defendant Kemp, whether the loans were
    commercially reasonable, made in the ordinary course of business,
    whether the loans were considered by defendant Kemp to be a
    benefit or gift, the terms of the loan and other factors . . . that you
    consider material.” (App. at 9651.) This appropriately conveyed
    to the jury the many-faceted issue.
    15
    While we made that statement while discussing the Hobbs
    Act, it is no less applicable in the present context. See, e.g., United
    States v. Woodward, 
    149 F.3d 46
    , 57 (1st Cir. 1998) (permitting
    similar form of proof in honest services fraud case).
    41
    Cir. 1999)).
    We first reject Holck and Umbrell’s argument that the
    benefits that they were accused of bestowing on Kemp – a
    variety of loans – cannot constitute bribes (or the quid of a quid
    pro quo) because they were made at the prevailing interest rates
    in the regular course of business. As a factual matter, a
    reasonable jury certainly could have found that these loans were
    not advanced in the usual course of business and were instead
    extended to Kemp and his friends solely because of Kemp’s
    position. For instance, Umbrell agreed to loan $7,500 unsecured
    to a person Kemp described as having “shaky credit” without
    even seeing an application or speaking to the borrower.
    Umbrell’s stated purpose for approving this loan was to make
    Kemp “look good.” Moreover, Kemp’s mortgage loans were
    approved by Holck and Umbrell before Kemp filed an
    application, and despite the fact that Commerce’s computer
    program and underwriter rejected the mortgages. Indeed, an
    underwriter from Commerce testified that the procedures used to
    approve this loan failed to comply with standard practice. This
    evidence is sufficient to support a jury’s conclusion that these
    loans were made available to Kemp only because he was the
    treasurer.
    Moreover, as a legal matter, we conclude that providing a
    loan to a public official (or his friends or family) that would have
    otherwise been unavailable to that official or available at a
    higher interest rate may constitute a bribe. This is consistent
    with our discussion in Antico where, concerning quid pro quo
    under the Hobbs Act, we broadly described a bribe as involving
    “payments or other consideration.” 
    Id. at 257
    (emphasis added).
    Further, the conclusion comports with the federal bribery statute,
    which refers to “anything of value,” and other general definitions
    of bribery. See, e.g., Black’s Law Dictionary 186 (7th ed. 1999)
    (defining “bribery” as “[t]he corrupt payment, receipt, or
    solicitation of a private favor for official action”). It also takes
    account of the commonsense notion that a loan may be of
    immense value to the recipient: for instance, here, Kemp’s
    mortgage loan allowed him to purchase a house.
    Our conclusion that a loan may constitute the quid in a
    42
    bribery prosecution is also supported by the relevant caselaw.
    Most notably, in United States v. Gorman, 
    807 F.2d 1299
    (6th
    Cir. 1986), the defendant argued that a loan was not a “thing of
    value” under § 201 because he fully repaid the loan with interest.
    
    Id. at 1304.
    The Sixth Circuit rejected that argument, because at
    the time that the defendant received the loan he was having
    “severe financial difficulties” and it was unclear whether such a
    loan would have been available to him in the ordinary course of
    business. 
    Id. at 1305.
    The court focused on the value that the
    recipient “subjectively attache[d] to the items received.” 
    Id. A loan
    was also recognized as a potential quid in United States v.
    Williams, 
    705 F.2d 603
    (2d Cir. 1983). There, a United States
    Senator was convicted under the federal bribery statute for
    “seeking funds for the financing and purchase of a mining
    venture in which he had an interest in exchange for his
    assistance in obtaining government contracts for the venture.”
    
    Id. at 612.
    One of the two sorts of funds that the senator sought
    was a $100 million loan that was to be repaid with interest.
    
    Id. at 620.
    The court never questioned that the loan could serve
    as a bribe, and termed the evidence against the senator
    “overwhelming.” 
    Id. at 612;
    see also United States v. Crozier,
    
    987 F.2d 893
    , 901 (2d Cir. 1993) (“[A]s we have held in
    connection with § 201, any payment that the defendant
    subjectively believes has value, including a loan, constitutes a
    thing ‘of value’ within the meaning of § 666(c)”). Thus, we
    conclude that loans, so long as they are granted in exchange for
    an official act, may drive a bribery prosecution.16
    We also conclude that Holck and Umbrell’s assertion that
    they did not receive any benefit from Kemp is contradicted by
    the record evidence. Despite Holck and Umbrell’s protestations,
    a reasonable jury could undoubtably have concluded that Kemp
    provided a benefit to them when he rigged the bidding for the
    NTI line of credit in Commerce’s favor. The government
    showed that after Commerce submitted its bid, Kemp told White
    to tell Holck and Umbrell not to submit their bids first, because
    16
    Indeed, given that the government must also prove the
    loan was given in exchange for some official action, there is little
    danger that honest loans will trigger criminal liability.
    43
    then Kemp could tell White about the other bids. This alone
    permitted a reasonable jury to conclude that Kemp intended to
    benefit Commerce to the detriment of other banks. Then Kemp
    called Holck and gave him specific instructions about how
    Commerce could tweak its initial bid to guarantee that its bid
    would win – a courtesy that he did not extend to any other bank.
    Indeed, when Wachovia attempted to rebid, Kemp ignored its
    request. While a second round of bidding was instituted – on the
    orders of Kemp’s boss and against Kemp’s wishes – only
    Commerce was told exactly what to bid to ensure success. This
    evidence was plainly sufficient for the jury to conclude that
    Holck and Umbrell received a benefit from Kemp.
    Finally, we reject Holck and Umbrell’s contention that
    the government failed to present evidence of a
    pro demonstrating that Holck and Umbrell extended loans to
    Kemp in exchange for favorable treatment. Especially damaging
    to Holck and Umbrell’s position is the June 24, 2003 phone call
    between Umbrell and Kemp. There, Umbrell agreed to waive
    the $3,500 appraisal fee for the church loan, and then, while the
    two discussed the renewal of some of Philadelphia’s certificates
    of deposit with Commerce, Kemp told Umbrell that Umbrell
    could always speak to Kemp directly because “you are my
    f__king guy. . . . So you get special treatment.” While Kemp
    did not elaborate about why Umbrell was his “guy,” the jury
    certainly could have inferred that it was because of the consistent
    flow of loans and perks – including the waiver of the appraisal
    fee discussed moments before – that Holck and Umbrell
    extended. The evidence also showed that not only did Kemp say
    that Holck and Umbrell would get special treatment – they did.
    The NTI bidding process is a particularly egregious example.
    Further, the government showed that Holck and Umbrell
    believed that they would receive this special treatment, as
    illustrated by the phone call between White, Holck, and Umbrell,
    where Holck appeared surprised that any bank besides
    Commerce would get a second opportunity to bid, stating that
    “you know we made . . . the revised proposal to Corey? . . . And
    something’s not smelling right.” Similarly, Kemp’s explanation
    of the NTI transaction to his friend, in which Kemp stated that
    Commerce Bank had better take care of him because he hooked
    them up with the NTI deal, evinced his understanding that he
    44
    was giving Holck and Umbrell special treatment in exchange for
    loans. This course of conduct permitted the jury to infer that
    Kemp had agreed with Holck and Umbrell that he would take
    official action in their favor in exchange for their providing him
    loans and benefits.
    Accordingly, we conclude that the government presented
    sufficient evidence to support the jury’s verdict against Holck
    and Umbrell on the honest services wire fraud charge.17
    C.     Holck’s and Umbrell’s Conspiracy Convictions
    Holck and Umbrell argue that their convictions for
    conspiracy to commit honest services fraud must be vacated
    because there was a prejudicial variance between the charge in
    the indictment and the proof presented at trial.18 They claim that
    17
    Because we have rejected Holck and Umbrell’s arguments
    that the failure to disclose theory was legally invalid, see part
    
    III.B.3., supra
    , we need not consider whether the District Court
    correctly concluded that the government presented insufficient
    evidence to convict on the failure-to-disclose theory. As we
    discussed above, because the evidence was “sufficient to convict
    on another alternative theory that was charged to the jury in the
    same count, [we will] assume that the jury convicted on the
    factually sufficient theory and [will] let the jury verdict stand.”
    
    Syme, 276 F.3d at 144
    .
    18
    Our jurisprudence distinguishes between challenges to the
    sufficiency of the evidence, in which the appellant claims that the
    government failed to prove an essential element of conspiracy, and
    variance claims, in which the appellant argues that the government
    proved multiple conspiracies instead of the one charged in the
    indictment. For instance, in United States v. Kenny, 
    462 F.2d 1205
    (3d Cir. 1972), we explained, before commencing our variance
    analysis, that it was “not a case where there was no evidence of the
    existence of a conspiracy”; rather, the government allegedly
    “proved several separate unrelated conspiracies under each
    conspiracy count.” 
    Id. at 1216.
    Similarly, in United States v.
    Perez, 
    280 F.3d 318
    (3d Cir. 2002), we considered both sufficiency
    45
    while the indictment alleged a single conspiracy involving
    Holck, Umbrell, White, Kemp, Hawkins, and Knight, the
    evidence adduced at trial proved, if anything, that Holck and
    Umbrell, Knight, and Hawkins each joined a separate conspiracy
    with White and Kemp. “A conviction must be vacated when (1)
    there is a variance between the indictment and the proof
    presented at trial and (2) the variance prejudices a substantial
    right of the defendant.” United States v. Kelly, 
    892 F.2d 255
    ,
    258 (3d Cir. 1989). As we discuss below, we agree with Holck
    and Umbrell that there was a variance; however, we will
    nevertheless affirm their convictions because they have failed to
    demonstrate prejudice.
    1.     Variance
    There is a variance if the indictment charges a single
    conspiracy while the evidence presented at trial proves only the
    existence of multiple conspiracies. 
    Id. We must
    determine
    “whether there was sufficient evidence from which the jury
    could have concluded that the government proved the single
    of the evidence and variance challenges to the same conspiracy
    conviction. 
    Id. at 342.
    The sufficiency of the evidence analysis
    concerned whether the defendants possessed the “requisite
    knowledge of the illegal objective of the scheme to distribute
    methamphetamine such that they could form an intent or agreement
    to join the conspiracy.” 
    Id. at 343.
    One defendant claimed that he
    was caught with a drug distributor only by chance and was not
    involved with drugs, while the other claimed that he had a common
    buyer-seller relationship with the distributor and was not involved
    in a conspiracy to distribute. 
    Id. This can
    be contrasted to the
    variance argument, where the defendants argued that while they
    may have been involved in a conspiracy to distribute drugs in New
    York, they were not part of the same conspiracy as men who dealt
    drugs in New Jersey. 
    Id. at 347.
    Because Holck and Umbrell
    concede that the government presented sufficient evidence that
    they were involved in a conspiracy with some, but not all, of their
    co-defendants, we interpret their claim as alleging a prejudicial
    variance, rather than as a pure sufficiency of the evidence
    challenge.
    46
    conspiracy alleged in the indictment.” 
    Id. Thus, we
    evaluate
    whether the record, when viewed in the light most favorable to
    the government, contains substantial evidence that Holck and
    Umbrell were part of a single conspiracy that also included
    Kemp, White, Hawkins, and Knight.
    In order to determine whether a group of individuals
    engaged in a single conspiracy or multiple conspiracies, we
    evaluate three factors. We consider: (1) “whether there was a
    common goal among the conspirators”; (2) “whether the
    agreement contemplated bringing to pass a continuous result that
    will not continue without the continuous cooperation of the
    conspirators”; and (3) “the extent to which the participants
    overlap in the various dealings.” 
    Id. at 259
    (internal quotation
    marks omitted). Here, the government has failed to satisfy the
    first Kelly factor.
    The crux of Holck and Umbrell’s argument is that the
    government charged a hub-and-spokes conspiracy but failed to
    prove the existence of a rim connecting the spokes. That is, they
    claim that Kemp and White were the hub, and entered into
    separate agreements with three unconnected spokes – Holck and
    Umbrell, Knight, and Hawkins. This argument is predicated on
    the seminal case Kotteakos v. United States, 
    328 U.S. 750
    (1946). Kotteakos involved an indictment that charged 32
    individuals with conspiracy to obtain loans under a Fair Housing
    Act program by making false applications; Simon Brown was at
    the center of the alleged conspiracy, helping a disparate group of
    individuals obtain these loans. 
    Id. at 752-53.
    The Supreme
    Court held that the facts presented failed to prove a single
    conspiracy:
    Except for Brown, the common figure, no
    conspirator was interested in whether any loan
    except his own went through. And none aided in
    any way, by agreement or otherwise, in procuring
    another’s loan. The conspiracies therefore were
    distinct and disconnected, not parts of a larger
    general scheme, both in the phase of agreement with
    Brown and also in the absence of any aid given to
    others as well as in specific object and result. There
    47
    was no drawing of all together in a single, over-all,
    comprehensive plan.
    Blumenthal v. United States, 
    332 U.S. 539
    , 558 (1947)
    (discussing Kotteakos).
    In Blumenthal, the Court found a single conspiracy where
    the defendants were all involved in a scheme to acquire whiskey
    and resell it above authorized prices. Distinguishing these facts
    from Kotteakos, the Court noted that all the conspirators “knew
    of and joined in the overriding scheme” and “sought a common
    end” to sell the whiskey, so that “the several agreements were
    essential and integral steps.” 
    Id. at 559.
    The contrast between
    Kotteakos and Blumenthal helps us to determine whether an
    impermissible variance has occurred. As this Court has noted,
    the Government may not charge “multiple unrelated
    conspiracies,” but it can charge a “master conspiracy [with]
    more than one subsidiary scheme.” United States v. Kenny, 
    462 F.2d 1205
    , 1216 (3d Cir. 1972); see also United States v.
    Chandler, 
    388 F.3d 796
    , 811 (11th Cir. 2004) (stating that
    “although each of these alleged spoke conspiracies had the same
    goal, there was no evidence that this was a common goal”).
    Here, Holck and Umbrell argue that they could not have
    joined the same conspiracy as Knight and Hawkins, because they
    neither knew about Knight’s and Hawkins’s activities nor were
    dependent on those activities. The government, on the other
    hand, argues that it proved both knowledge and interdependence.
    First, we agree with Holck and Umbrell that the
    government failed to present evidence that they either knew or
    should have known about Knight’s and Hawkins’s activities.
    While the government claims that Holck and Umbrell acted
    “with knowledge that White was serving interests in addition to
    theirs,” it presents no factual support for this assertion. Nor is
    this the type of conspiracy that must have had other members; it
    would have been perfectly reasonable for Holck and Umbrell to
    have believed that they were doing business with only Kemp and
    White. Cf. 
    Chandler, 388 F.3d at 811
    n.21 (“In a drug
    conspiracy, in which the object of the conspiracy is clearly
    illegal and there are various clandestine functions to perform, the
    48
    conspirators can be charged with knowledge that others are
    performing these different functions. In this case, however, such
    knowledge may not be imputed to defendants since each of their
    redemptions was complete unto itself.” (citation omitted)). This
    may be contrasted with Blumenthal, where three salesmen were
    convicted of conspiring to sell whiskey at above-ceiling prices in
    violation of the Emergency Price Control 
    Act. 332 U.S. at 541
    .
    The Court held that while “each salesman aided in selling only
    his part,” 
    id. at 559,
    they could nevertheless form part of a single
    conspiracy, because they “knew or must have known that others
    unknown to them were sharing in so large a project,” 
    id. at 558.
    Here, there was no such evidence that Holck and Umbrell should
    have known that the conspiracy involved parts beyond White
    and Kemp. Accordingly, given the absence of any evidence to
    the contrary, we agree with Holck and Umbrell that the
    government failed to prove that they were aware of the existence
    of the other spokes.
    Second, we agree with Holck and Umbrell that their
    activities and those of the other spokes were neither
    interdependent nor mutually supportive. In evaluating
    interdependence, we consider how helpful one individual’s
    contribution is to another’s goals. See United States v. Macchia,
    
    35 F.3d 662
    , 671 (2d Cir. 1994) (describing inquiry as “the
    extent to which the success or failure of one conspiracy is
    independent of a corresponding success or failure by the other”).
    We reiterate that interdependence serves as “evidence of an
    agreement,” 
    Perez, 280 F.3d at 346
    ; that is, it helps establish
    whether the alleged coconspirators are “all committed to the
    same set of objectives in a single conspiracy,” 
    Smith, 82 F.3d at 1271
    .
    Chain-shaped conspiracies present the classic examples of
    interdependence. For instance, in 
    Perez, 280 F.3d at 347
    , we
    concluded that two drug sellers and a drug smuggler were
    interdependent, even though there was a middleman between
    them, because “[the dealers] depended on a scheme involving
    [the smuggler and the middleman] and the shipment from the
    Philippines to possess and distribute the illegal drug.” See also
    United States v. Portela, 
    167 F.3d 687
    , 697 (1st Cir. 1999)
    (explaining that “a single conspiracy [exists] if the continued
    49
    health of the trafficking and distribution network necessarily
    depends on the continued efforts of multiple suppliers”); United
    States v. Evans, 
    970 F.2d 663
    , 670 (10th Cir. 1992)
    (“Interdependence is present when each alleged coconspirator . .
    . depend[s] on the operation of each link in the chain to achieve
    the common goal.” (alterations in original) (internal quotation
    marks omitted)).19
    We also concluded that there was a single conspiracy in
    United States v. Kenny, 
    462 F.2d 1205
    (3d Cir. 1972), a non-
    drug case. Kenny involved a large-scale scheme that required
    contractors to pay kickbacks to government officials in order to
    procure government contracts. 
    Id. at 1217.
    While the scheme
    19
    In the typical chain conspiracy, the actions of each co-
    conspirator benefit the overall conspiracy. It is for this reason that
    the “chain conspiracy” cases relied on by the Government are of
    limited relevance to our discussion. The paradigmatic example in
    which the chain metaphor provides guidance is the drug
    conspiracy, where the conspirators often “share a common goal,
    such as the possession and distribution of narcotics for profit.” See
    United States v. Tarantino, 
    846 F.2d 1384
    , 1393 (D.C. Cir. 1988);
    United States v. Russell, 
    134 F.3d 171
    , 182 (3d Cir. 1998) (stating
    that “the common goal of this conspiracy was to make money
    selling cocaine”); 
    Quintero, 38 F.3d at 1337
    (“The prosecution
    must . . . demonstrate that a defendant, charging variance, knew
    that he was part of a larger drug operation.”); United States v. Barr,
    
    963 F.2d 641
    , 650 (3d Cir. 1992); 
    Salmon, 944 F.2d at 1117
    (conspiracy to sell cocaine for profit or another benefit); 
    Padilla, 982 F.2d at 115
    (stating that “there was a common goal to obtain
    and sell cocaine for profit and knowledge attributable to [the
    defendant] of a larger network”); United States v. Kelly, 
    892 F.2d 255
    (3d Cir. 1989) (conspiracy to possess and manufacture
    methamphetamine); 
    id. at 258
    (describing the Government’s theory
    as the “classic chain conspiracy”). We do not wish to imply that
    every individual involved with a drug conspiracy is necessarily a
    member of that one conspiracy. “[E]ven if we determine that a
    chain conspiracy exists, we may still conclude that certain actions
    were outside the chain and formed a separate conspiracy.”
    
    Tarantino, 846 F.2d at 1393
    .
    50
    involved a diverse group of individuals, the evidence showed “a
    determined group who repeatedly cooperated closely to achieve
    the common purpose of self-enrichment by extracting
    kickbacks.” 
    Id. Moreover, “[t]he
    key to success of all their
    depravities was their common control over the administration of
    city and county government.” Id.; see also United States v.
    Greenidge, --- F.3d ----, 
    2007 WL 205076
    (3d Cir. 2007)
    (finding single conspiracy where depositors of stolen and altered
    checks “did not represent independent customers, but were an
    integral part of this [pyramidal] ‘corporate’ structure”).
    On the other hand, in Smith, we concluded that there was
    no interdependence between two kickback schemes because
    “[t]he co-conspirators in each state derived no benefit, financial
    or otherwise, from Smith’s activities in the other state, nor was
    the success of the conspiracy in one state contingent on the
    success of the conspiracy in the 
    other.” 82 F.3d at 1271
    .
    Similarly, in United States v. Camiel, 
    689 F.2d 31
    (3d Cir.
    1982), we found that the government had failed to prove a
    common, unified scheme between the officials of both houses of
    the Pennsylvania General Assembly in offering “no-show”
    patronage positions, because while each body did offer such
    positions, “there was a dearth of evidence presented that could
    link the relevant activities of the two legislative bodies.” 
    Id. at 37;
    see also 
    Chandler, 388 F.3d at 811
    -12 (“In this case, there
    was no such interdependence of the spokes. The combined
    efforts of the spokes were not required to insure the success of
    the venture. No spoke depended upon, was aided by, or had any
    interest in the success of the others. Each spoke acted
    independently and was an end unto itself. The actions of one
    spoke did not facilitate the endeavors of other coconspirators or
    the venture as a whole.” (footnote omitted)).
    Based on these principles, we conclude that there was an
    insufficient degree of interdependence between Knight and
    Holck and Umbrell. While White and Kemp steered business to
    Knight’s company RPC, this did not benefit Holck and Umbrell;
    it only benefitted Knight (and perhaps White). Nor did this
    arrangement cement White’s hold on Kemp; if anything, it
    indebted White to Kemp, which again was of no use to Holck
    and Umbrell. Thus, it is difficult to conceive of how Knight’s
    51
    activities and those of Holck and Umbrell were interdependent
    or mutually supportive.
    Hawkins’s case is somewhat closer, because it is at least
    arguable that Hawkins’s assistance to White in tendering bribes
    to Kemp inadvertently benefitted Holck and Umbrell by
    increasing White’s power over Kemp. Nevertheless, we
    conclude that this degree of interdependency is too attenuated
    and incidental to establish that Holck and Umbrell and Hawkins
    joined the same conspiracy. The evidence here, as in Kotteakos
    and Smith, demonstrates that Holck and Umbrell’s transactions
    were able to proceed without any reliance on Hawkins, and vice
    versa. Holck and Umbrell, through cultivating a relationship
    with White and providing loans to Kemp, induced Kemp to grant
    them favorable treatment. Hawkins also sought favors from
    Kemp, and worked with White to coax those favors. Neither of
    these sets of transactions was contingent upon the other.
    Accordingly, we conclude that Holck and Umbrell and Hawkins
    were not interdependent.
    The government’s other arguments lack merit. For
    instance, the government claims that the conspirators overlapped
    because “White and Kemp, the core conspirators, dealt with
    every one of the coconspirators, including Holck and Umbrell,
    both individually and together.” However, this could be said for
    any hub-and-spokes style conspiracy; Kotteakos and its progeny
    make clear that there must be overlap among the spokes, not just
    between the hub and the various spokes. Further, it is of no
    moment that the hub of this conspiracy involved two individuals
    instead of one. Smith recognized that the inquiry must focus not
    on the number of individuals who make up the hub, but on the
    character of the agreements between the spokes. 
    See 82 F.3d at 1272
    . Thus, we conclude that appellants are correct that there
    was a variance between the conduct charged and proved.
    2.     Substantial Prejudice
    We will only vacate Holck’s and Umbrell’s convictions,
    however, if they can show that the variance prejudiced their
    substantial rights. See United States v. Padilla, 
    982 F.2d 110
    ,
    115 (3d Cir. 1992) (stating “assuming arguendo that Padilla has
    52
    demonstrated a variance, he must also show prejudice to a
    substantial right”); 
    Perez, 280 F.3d at 345
    (same). The rule
    against variances serves at least three purposes. These purposes
    also illustrate why this rule contains a prejudice requirement.
    First, “the rule protects the right of each defendant ‘not to be
    tried en masse for the conglomeration of distinct and separate
    offenses committed by others.’” United States v. Schurr, 
    775 F.2d 549
    , 553 (3d Cir. 1985) (quoting 
    Kotteakos, 328 U.S. at 775
    ). The idea here is that the jury should not be permitted to
    transfer “‘guilt from one alleged co-schemer to another.’”
    
    Perez, 280 F.3d at 346
    (quoting United States v. Barr, 
    963 F.2d 641
    , 648 (3d Cir. 1992)). Closely related to guilt transference is
    the possibility of evidence spillover. United States v. Trainor,
    
    477 F.3d 24
    , 36 n.21 (1st Cir. 2007) (stating that “the spillover
    concern is addressed to whether incriminating evidence against
    co-defendants who were involved in separate conspiracies
    affected the jury’s consideration of the evidence against the
    defendant”). Second, the rule ensures that a defendant has
    adequate notice of the charges being brought against him. 
    Perez, 280 F.3d at 345
    . Third, the rule “rests on a principle akin to
    double jeopardy, for the rule helps to minimize the danger that
    the defendant may be prosecuted a second time for the same
    offense.” 
    Schurr, 775 F.2d at 554
    (internal quotation marks
    omitted). The third purpose is not at issue in this case, and the
    “notice” purpose has not been violated because Holck and
    Umbrell were aware from the indictment as to their role in the
    conspiracy, even if this conspiracy had been solely between
    them and the White/Kemp hub. There is no reasonable argument
    that Holck and Umbrell were not aware of the nature of the
    charges brought against them.
    Here, Holck and Umbrell have failed to show that the
    variance prejudiced their substantial rights. They argue that they
    were prejudiced because a great deal of evidence concerning
    “seamy explicit . . . quid pro quo trades” between White and
    Kemp were introduced against them. According to Holck and
    Umbrell, “these damning conversations had nothing to do with
    [them].” However, as the government notes, this evidence was
    admissible against Holck and Umbrell because, as they concede,
    they joined a conspiracy with White and Kemp. See, e.g.,
    United States v. Kushner, 
    305 F.3d 194
    , 198 (3d Cir. 2002)
    53
    (explaining that “[u]nder the law of conspiracy, a defendant is
    liable for his own and his co-conspirators’ acts for as long as the
    conspiracy continues”). This conspiracy involved White’s
    bribing Kemp in order to control his decision-making and direct
    city business to favored companies – including Commerce.
    Thus, evidence concerning White and Kemp’s relationship was
    relevant to Holck and Umbrell to explain White’s power over
    Kemp, which worked in Holck and Umbrell’s favor.
    Accordingly, Holck and Umbrell’s argument on this point lacks
    merit.
    Further, as the government explains, it rigorously
    segmented its proofs and “never suggested in any way that any
    piece of evidence related to Hawkins and Knight was relevant to
    establish Holck and Umbrell’s participation in the conspiracy.”
    This Court has specifically found, in a discussion of variance, no
    prejudice because, inter alia, “the presentation against the
    defendants here proceeded seriatim.” 
    Padilla, 982 F.2d at 116
    .
    We explained that the presentation of evidence in this manner
    minimized the risk of evidence spillover from the separate
    defendants. Id.; see also 
    Perez, 280 F.3d at 347
    ; Greenidge,
    
    2007 WL 205076
    4. The same rationale applies here.
    Also militating against a finding of prejudice is
    Kotteakos’s explanation that the danger of prejudice increases
    along with the number of conspiracies and individuals that make
    up the wrongly charged single conspiracy. As the Court stated,
    “[o]bviously the burden of defense to a defendant, connected
    with one or a few of so many distinct transactions, is vastly
    different not only in preparation for trial, but also in looking out
    for and securing safeguard against evidence affecting other
    defendants.” 
    Id. at 766-67.
    The Court distinguished the
    conspiracy in that case, which involved eight different
    conspiracies encompassing between 13 and 32 individuals and
    did prejudice the defendant, from the case of Berger v. United
    States, 
    295 U.S. 78
    (1935), where two conspiracies involving
    four individuals were proved and did not prejudice the
    defendant. 
    Id. at 766.
    This case is more similar to Berger, as
    there were five alleged conspirators that make up three distinct
    conspiracies. Thus, there is little danger that prejudice
    inevitably occurred based on the sheer number of defendants and
    54
    conspiracies.
    Accordingly, while Holck and Umbrell have shown that
    there was a variance between the charge in the indictment and
    the evidence adduced at trial, they have failed to demonstrate
    that they were prejudiced by the variance.
    D.       Hawkins’s Wire Fraud Conviction
    La-Van Hawkins challenges the sufficiency of the
    evidence supporting his conviction for aiding and abetting wire
    fraud, which related to his transmitting the second $5,000 to
    Kemp. Hawkins argues that there may have been sufficient
    evidence to show that he intended to aid and abet some sort of
    criminal activity, but that the government failed to present
    evidence demonstrating that he intended to aid and abet the
    specific crime of honest services fraud. Again, we will “view
    the evidence in the light most favorable to the Government and
    sustain the verdict if any rational juror could have found the
    elements of the crime beyond a reasonable doubt.” 
    Cartwright, 359 F.3d at 286
    (internal quotation marks omitted).
    Hawkins’s argument is based on the general precept that
    in order to convict a defendant of aiding and abetting, the
    government must prove that “the defendant charged with aiding
    and abetting that crime knew of the commission of the
    substantive offense and acted with the intent to facilitate it.”
    United States v. Dixon, 
    658 F.2d 181
    , 189 n.17 (3d Cir. 1981).
    We applied this principle in United States v. Wexler, 
    838 F.2d 88
    (3d Cir. 1988), where we held that the government had presented
    insufficient evidence to sustain the defendant’s conviction for
    aiding and abetting possession by others with intent to distribute
    hashish. 
    Id. at 90.
    While the government had presented
    evidence that would have allowed a jury to find that the
    defendant was involved in an operation with two other men that
    involved transporting cargo in a truck, that the defendant served
    as a lookout as the other defendants moved the truck, and that
    the truck was loaded with hashish, 
    id. at 91,
    we concluded that
    the government had failed to present enough evidence that the
    defendant knew that the truck held drugs, 
    id. at 92.
    We
    explained that because the government had failed to show that
    55
    the defendant “had knowledge of the hashish,” it failed to prove
    that the defendant purposely aided and abetted the specific crime
    with which he was charged. 
    Id. We concluded
    that the evidence
    presented was just as consistent with the crime of transporting
    stolen goods – an entirely different crime. 
    Id. In the
    instant case, however, the government presented
    sufficient evidence for the jury to conclude that Hawkins
    intended to aid and abet honest services fraud. The government
    demonstrated that Hawkins knew that Kemp held public office
    in Philadelphia and that Hawkins knew that White was a
    politically connected Philadelphia lawyer. Moreover, the
    government showed that Hawkins had no reason to provide
    money to Kemp, and that he actually relayed the money to Kemp
    at White’s behest after White provided him with a $5,000 check.
    The government also presented evidence that Hawkins filled out
    the entire check except for the payee line, although he did intend
    for the money to go to Kemp, as demonstrated by the subsequent
    wire transfer. This evidence all supports the jury’s conclusion
    that Hawkins intended to aid and abet White’s corruption of
    Kemp. Hawkins argues that this situation is just as consistent
    with drug conspiracy, money laundering, or tax fraud; however,
    the government’s theory specifically accounts for Kemp’s
    position as a public official in a way that Hawkins’s other
    proposed crimes do not, which differentiates this case from
    Wexler. As we have explained, “[t]here is no requirement . . .
    that the inference drawn by the jury be the only inference
    possible or that the government’s evidence foreclose every
    possible innocent explanation.” United States v. Iafelice, 
    978 F.2d 92
    , 97 n.3 (3d Cir. 1992). Thus, we reject Hawkins’s
    argument and will affirm his conviction for aiding and abetting
    honest services wire fraud.
    E.     Hawkins’s Perjury Convictions
    Hawkins next challenges the sufficiency of the evidence
    undergirding his three perjury convictions under 18 U.S.C. §
    1623, which prohibits “knowingly mak[ing] any false material
    declaration” under oath before a grand jury. For each perjury
    conviction, Hawkins contends that the government failed to
    prove that his relevant testimony before the grand jury was
    56
    untrue. We will uphold the verdict if a reasonable jury could
    have found the elements of the crime beyond a reasonable doubt.
    
    Dent, 149 F.3d at 187
    . The government may prove guilt “via
    circumstantial evidence.” United States v. Serafini, 
    233 F.3d 758
    , 770 (3d Cir. 2000); see also 18 U.S.C. § 1623(e) (“Proof
    beyond a reasonable doubt under this section is sufficient for
    conviction. It shall not be necessary that such proof be made by
    any particular number of witnesses or by documentary or other
    type of evidence.”); United States v. Smith, 
    538 F.2d 159
    , 163
    (7th Cir. 1976) (“Although no direct evidence of perjury was
    produced, none was required.”).
    We first reject Hawkins’s argument that the government
    presented insufficient evidence to prove the falsity of his
    testimony that he provided the first $5,000 check to Kemp as a
    wedding present on White’s instructions. As the government
    argued, the story that Hawkins presented is unlikely on its face:
    it is difficult to understand why Hawkins would agree to give a
    $5,000 wedding gift to someone he barely knew. Further, the
    government presented evidence that Kemp had already been
    married for 20 months by the time that Hawkins wrote this
    check. While it is true, as Hawkins responds, that that could
    mean only that White lied to Hawkins, it nevertheless places
    Hawkins’s account in further doubt. Additionally, and vitally,
    the government demonstrated that Hawkins testified falsely
    about the details surrounding this payment. According to
    Hawkins’s grand jury testimony, White and Kemp were in
    Detroit for Kemp’s bachelor party, and during that trip, dropped
    by Hawkins’s office. While there, Hawkins testified, White
    asked Hawkins to give Kemp a check as a wedding present.
    However, the government showed that Kemp was not actually in
    Detroit at the time. This contradiction could have allowed the
    jury to draw two inferences. First, the jury could have
    concluded that Hawkins lied when he said that Kemp’s bachelor
    party was occurring, which makes the wedding present
    explanation less plausible. Second, if Kemp was not in Detroit
    at all, it would be extremely unlikely that White would request a
    wedding present for him. Moreover, while Hawkins testified
    that the check was never cashed, it was. We conclude that this
    series of contradictions and implausibilities are sufficient to
    sustain the jury’s verdict on this count.
    57
    We are similarly unpersuaded by Hawkins’s argument
    that the government failed to prove the falsity of his grand jury
    testimony in which he stated that he supplied the second $5,000
    check to White intending for White to convey it to a coalition of
    African-American newspapers. Most damaging to Hawkins’s
    testimony is the fact that after this check bounced twice,
    Hawkins wired the $5,000 directly to Kemp’s bank account.
    This is powerful evidence that Hawkins intended for the $5,000
    to reach Kemp – not a newspaper association. While this fact
    alone is sufficient to sustain the conviction, we also note that the
    details that Hawkins provided further undermine the veracity of
    the story. For instance, the government demonstrated that
    Hawkins had met with the group two years before writing the
    check, making his sudden beneficence unusual. Thus, we will
    affirm the jury’s verdict on this count.
    We also make short shrift of Hawkins’s claim that the
    government proffered insufficient evidence to prove the falsity
    of his testimony regarding his meeting with Khan, in which he
    stated that he had not specifically asked White to bring Kemp to
    the meeting, although he had asked, on behalf of Khan, for the
    attendance of someone who could discuss property opportunities
    in Philadelphia. Hawkins’s testimony is flatly contradicted by
    the recorded telephone conversation in which Hawkins
    specifically asked White to bring “Corey” to the meeting in
    order to “keep [Khan] in the hole” by convincing Khan that
    Hawkins was “gonna be gettin’ 20 million.” Moreover, Khan
    testified that he never intended to enter the Philadelphia market
    and did not ask Hawkins to introduce him to anyone. This
    evidence was plainly sufficient to permit the jury to conclude
    that Hawkins’s grand jury testimony was false on this matter.
    F.     Hawkins’s Evidentiary Challenges
    Hawkins next challenges a string of the District Court’s
    evidentiary rulings. First, he argues that the evidence the
    government presented that mentioned Al Sharpton should have
    been excluded. For instance, in the government’s opening
    statement it stated:
    Where is a source of money? La-Van Hawkins is
    58
    looking for big public pension funds, and to get
    access to the money in big public pension funds Mr.
    Hawkins knows you need to have access to public
    officials. You will hear that is exactly what La-Van
    Hawkins tries to do. He tries to do it through
    Reverend Al Sharpton in the city of New York. In
    Philadelphia, he tries to do it through Ron White. . .
    .
    (App. at 1527.) Hawkins argues that this and all subsequent
    references to Sharpton were irrelevant and thus inadmissible
    under Fed. R. Evid. 401. Alternatively, Hawkins argues that the
    evidence should have been excluded under Fed. R. Evid. 403
    because any probative value that the evidence did have was
    “substantially outweighed by the danger of unfair prejudice.”
    “We review a district court’s decision to admit or exclude
    evidence for abuse of discretion, and such discretion is construed
    especially broadly in the context of Rule 403.” United States v.
    Mathis, 
    264 F.3d 321
    , 326-27 (3d Cir. 2001).
    Contrary to Hawkins’s assertion, the evidence involving
    Sharpton did have a “tendency to make the existence of any fact
    that is of consequence to the determination of the action more
    probable or less probable than it would be without the evidence.”
    Fed. R. Evid. 401. As we have recognized, this standard is “not
    high.” United States v. Steele, 
    685 F.2d 793
    , 808 (3d Cir. 1982)
    (internal quotation marks omitted). At bottom, the government
    aimed to prove that Hawkins joined a conspiracy to corrupt
    Kemp. The evidence concerning Hawkins’s efforts to cultivate a
    relationship with Sharpton emphasized Hawkins’s interest in
    fostering ties with politically active individuals, and was thus
    probative as to Hawkins’s intent in working with White and
    directing money to Kemp. The evidence could have allowed a
    jury to conclude that it was less likely that the first payment to
    Kemp was casually made at White’s direction, that the second
    payment was not intended for Kemp at all, and that Hawkins was
    generally indifferent toward Kemp’s position, because the
    evidence concerning Sharpton helped show just how
    determinedly Hawkins wooed those with political connections
    and his willingness to convey money to them. Of course, this
    evidence alone does not prove Hawkins’s guilt on any count, but
    as the notes to Rule 401 explain, “a brick is not a wall.” Fed. R.
    59
    Evid. 401 advisory committee’s note (internal quotation marks
    omitted).
    Moreover, Hawkins has failed to present any authority for
    his novel position that Sharpton’s name alone is so prejudicial
    that the infrequent references to it substantially outstripped the
    probative value of this evidence. Further, the District Court
    minimized the possibility of prejudice by explicitly instructing
    the jury that: “The government is not alleging anything wrong at
    all regarding the efforts of La-Van Hawkins, Ronald White, and
    Al Sharpton concerning New York pension funds. There is no
    suggestion of illegality as to any recorded conversations you
    heard played during the government’s case-in-chief pertaining to
    Al Sharpton . . . .” (App. at 10593-94.) Accordingly, we
    conclude that the District Court did not abuse its discretion in
    admitting the evidence under either Rule 401 or 403.
    Second, Hawkins argues that the testimony of
    representatives of Blockbuster, BET, Pizza Hut, and Burger
    King, all of whom contradicted claims that Hawkins made
    before the grand jury about his great wealth,20 should have been
    excluded under Rule 404(b). In order to be admissible under
    Fed. R. Evid. 404(b), the evidence of other acts must: “(1) have a
    proper evidentiary purpose, (2) be relevant under Rule 402, (3)
    satisfy Rule 403 (i.e., not be substantially more prejudicial than
    20
    Specifically, Bradley Himmeger, the Blockbuster
    representative, testified that despite Hawkins’s testimony that he
    owned 55 Blockbuster Video stores, Hawkins actually owned zero.
    H. Van Sinclair, a representative of BET, testified that contrary to
    Hawkins’s claim that he was a partner of Bob Johnson in the sale
    of BET for $3.5 billion, the two men were not partners and
    Hawkins was not involved in the sale. Pizza Hut representative
    John Murphy contradicted Hawkins’s claim that he had sold 127
    restaurants back to Pizza Hut by testifying that Hawkins had
    returned 72 restaurants to Pizza Hut and had actually paid Pizza
    Hut $50,000 to take the debt-ridden restaurants off his hands.
    Finally, W. Barry Blum, a representative of Burger King, testified
    that Hawkins received only $95,000 when he sold restaurants to
    Burger King, not, as Hawkins had claimed, $35 million.
    60
    probative), and (4) be accompanied by a limiting instruction,
    when requested pursuant to Federal Rule of Evidence 105, that
    instructs the jury not to use the evidence for an improper
    purpose.” United States v. Cross, 
    308 F.3d 308
    , 320-21 (3d Cir.
    2002) (footnote omitted). Hawkins argues that this evidence was
    offered for an improper purpose and that its probative value was
    substantially outweighed by the danger of unfair prejudice. We
    review the District Court’s judgments for abuse of discretion.
    United States v. Mastrangelo, 
    172 F.3d 288
    , 295 (3d Cir. 1999).
    As explained below, we conclude that the District Court acted
    within its discretion.
    Hawkins first argues that this evidence was not presented
    for a proper purpose, because it was offered to persuade the jury
    that because Hawkins had lied to the grand jury on other
    occasions, he must have been guilty of the perjury charges. To
    show a proper purpose, “the government must ‘clearly articulate
    how that evidence fits into a chain of logical inferences’ without
    adverting to a mere propensity to commit crime now based on
    the commission of crime then.” 
    Id. (quoting United
    States v.
    Sampson, 
    980 F.2d 883
    , 887 (3d Cir. 1992)).
    We are unpersuaded by Hawkins’s argument on this
    point. The government argues that it introduced this evidence to
    demonstrate Hawkins’s consciousness of his guilt of the
    underlying charges, which we have recognized is a proper
    purpose under Rule 404(b). See United States v. Gatto, 
    995 F.2d 449
    , 455 (3d Cir. 1993) (explaining that testimony was
    “admissible under Rule 404(b) . . . to show consciousness of
    guilt”); see also United States v. Rajewski, 
    526 F.2d 149
    , 158
    (7th Cir. 1975) (“It is well-settled that untrue exculpatory
    statements may be considered as circumstantial evidence of the
    defendant’s consciousness of guilt.”). Throughout Hawkins’s
    grand jury testimony, Hawkins defended his conduct essentially
    by arguing that he was too wealthy to deign to involve himself in
    the paltry corruption alleged in the case. For instance, after
    being asked whether Hawkins was concerned that providing
    money to Kemp constituted money laundering, Hawkins
    responded: “Well, no ma’am, for the simple reason money
    laundering is – first of all, because I had businesses all my
    money came from. I made all my money from legitimate
    61
    sources. As a matter of fact I sold Checkers for 50 million
    dollars and returned Burger King for 35 million dollars. So I’ve
    never had any reason to launder money.” (App. at 14815.) This
    response is illustrative of the general tenor of Hawkins’s grand
    jury testimony, in which he sought to equate wealth with
    innocence.21 Thus, the government’s evidence disproving these
    claims of vast wealth effectively impeached what Hawkins
    presented as an (unusual form of) alibi.
    We also agree with the government that the District Court
    did not abuse its discretion in determining that the evidence was
    admissible under Rule 403. See United States v. Jemal, 
    26 F.3d 1267
    , 1272 (3d Cir. 1994) (“If judicial self-restraint is ever
    desirable, it is when a Rule 403 analysis of a trial court is
    reviewed by an appellate tribunal.” (internal quotation marks
    omitted)). Given that we have frequently approved district
    courts’ decisions to admit previous drug convictions against
    defendants in subsequent drug prosecutions, see 
    Sampson, 980 F.2d at 887
    (“There is no question that, given a proper purpose
    21
    Similarly, after a grand juror asked Hawkins whether,
    during the meeting with Khan, White, and Kemp, he discussed
    using the Philadelphia pension funds to finance one of his
    endeavors, Hawkins immediately harkened to his wealth. He
    answered:
    No. As a matter of fact to be perfectly honest with
    you my partner is Bob Johnson. We own BET for
    3.5 billion dollars. So back in 2002 we sold it as a
    matter of fact to Viacom. So you know Bob Johnson
    is a partner of mines, Ted Turner has been a partner
    of mines. So we’ve got Leonard Greenwood. We
    got five different companies that because I’ve been
    so success[ful] in the fast food business that I have
    partners that raise eight, nine billion dollars in
    private placement that’s what we’re going to do. We
    were putting, 250 million dollars was going to be
    used in equity and the rest of the money was going
    to be raised by Merrill Lynch. They’re going to
    handle the debt.
    (App. at 14822-23.)
    62
    and reasoning, drug convictions are admissible in a trial where
    the defendant is charged with a drug offense.”), it cannot be, as
    Hawkins argues, that the similarity between his other conduct
    and charged conduct necessarily causes unfair prejudice.
    Because evidence of Hawkins’s consciousness of guilt was of
    high probative value to the government’s case, Hawkins faces a
    high hurdle in showing that the danger of unfair prejudice
    substantially outweighed the probative value. See 
    Cross, 308 F.3d at 325
    (“‘Rule 403 . . . does not generally require the
    government to sanitize its case, to deflate its witnesses’
    testimony, or to tell its story in a monotone.’” (quoting United
    States v. Gartmon, 
    146 F.3d 1015
    , 1021 (D.C. Cir. 1998)).
    While Hawkins attempts to surmount this hurdle by arguing that
    the government presented this evidence to convince the jury that
    Hawkins had committed crimes because of financial distress, we
    are not persuaded. See, e.g., United States ex rel. Mertz v. State
    of N.J., 
    423 F.2d 537
    , 541-42 (3d Cir. 1970) (recognizing this
    danger). There is a substantial difference between financial
    distress and not reaping huge profits from transactions, and the
    District Court took care to protect Hawkins from the evidence of
    the former by rejecting the government’s attempt to impeach
    Hawkins’s statement that he was a multi-millionaire.22 We thus
    conclude that the District Court did not abuse its discretion in
    determining that the evidence was admissible under Rules 403
    and 404.23
    22
    The District Court also limited the extent that financial
    information could be admitted by requiring that the evidence be
    presented succinctly and without confusing the jury.
    23
    We recognize that several courts of appeals have
    concluded that evidence of consciousness of guilt is intrinsic to the
    charged offense, and thus outside Rule 404. For instance, in
    United States v. Simmons, 
    470 F.3d 1115
    , 1124-25 (5th Cir. 2006),
    the Fifth Circuit permitted the government to introduce a
    defendant’s prior testimony that he had given in a state trial
    concerning an alleged sexual assault for the purpose of proving,
    through other evidence, that those statements were false. 
    Id. at 1125.
    The court explained:
    Similarly, Simmons’ state-court testimony was not
    63
    Next, Hawkins argues that the District Court erred by
    admitting a letter found in Kemp’s home as a co-conspirator
    statement under Fed. R. Evid. 801(d)(2)(E). The letter, which
    was dated March 20, 2002, and was addressed from Kemp to
    Hawkins, stated: “Let me take this opportunity to thank you for
    selecting me to serve in the capacity of a financial consultant for
    your company. I look forward to working and sharing my
    expertise with you in the very near future. Please feel free to
    contact me at your convenience.” (App. at 13944.) In order to
    admit a statement under Rule 801(d)(2)(E), a district court must
    find, by a preponderance of the evidence: “(1) that a conspiracy
    existed; (2) the declarant and the party against whom the
    statement is offered were members of the conspiracy; (3) the
    inadmissible under Rule 404(b) because it did not
    constitute a separate extrinsic bad act. The prior
    testimony was relevant to issues other than
    Simmons’ bad character. It was introduced not to
    show Simmons lied in the past, was a bad person,
    and, therefore, must have sexually assaulted
    Robinson; rather, it was introduced to show his
    consciousness of guilt and that he had lied in order to
    fabricate an alibi.
    Id.; see also United States v. Frost, 
    234 F.3d 1023
    , 1025 (8th Cir.
    2000) (“Frost’s testimony is direct evidence of fraudulent intent
    and consciousness of guilt. It does not relate to ‘other acts,’ but
    rather constitutes evidence intrinsic to the overall scheme. Rule
    404 is therefore inapplicable.”); United States v. Ramirez-Jiminez,
    
    967 F.2d 1321
    , 1327 (9th Cir. 1992) (explaining evidence that
    defendant had lied to government agents when stopped during
    crime was “probative of his consciousness that his conduct was
    illegal” and therefore Rule 404(b) was inapplicable).
    However, we have previously approved the admission of
    evidence of consciousness of guilt under Rule 404. See 
    Gatto, 995 F.2d at 455
    (explaining that testimony was “admissible under Rule
    404(b) . . . to show consciousness of guilt”). We thus follow our
    precedent and examine this issue under Rule 404. Given that we
    have concluded that consciousness of guilt is a proper purpose
    under Rule 404, however, our analysis converges with that used by
    the cases that hold Rule 404 inapplicable.
    64
    statement was made in the course of the conspiracy; and (4) the
    statement was made in furtherance of the conspiracy.” United
    States v. McGlory, 
    968 F.2d 309
    , 333 (3d Cir. 1992). We
    exercise plenary review over these findings. 
    Id. We agree
    with the District Court that this letter was
    admissible against Hawkins as the statement of an alleged co-
    conspirator. While Hawkins argues that the government failed
    to present any evidence besides this letter demonstrating that
    Hawkins and Kemp were members of a conspiracy, that is
    simply not true: just ten days before Kemp wrote this letter, he
    had accepted a $5,000 check from Hawkins. The transfer of
    money from Hawkins to Kemp could certainly have formed part
    of the alleged conspiracy. It does not matter whether or not
    Kemp actually mailed the letter to Hawkins, because its mere
    existence provided evidence that Kemp knew of the
    inappropriate nature of the $5,000 check from Hawkins.
    Accordingly, we will affirm the District Court’s admission of the
    letter.
    Finally, Hawkins argues that the District Court erred by
    admitting evidence concerning Kemp’s actual wedding date,
    arguing that this evidence is inadmissible under Rules 401 and
    403. According to Hawkins, this evidence was irrelevant
    because he testified before the grand jury only that White told
    him that Kemp’s wedding had recently occurred, not that it
    actually had. As noted, “[w]e review a district court’s decision
    to admit or exclude evidence for abuse of discretion, and such
    discretion is construed especially broadly in the context of Rule
    403.” 
    Mathis, 264 F.3d at 326-27
    .
    Again, we conclude that the District Court acted within its
    discretion in admitting this evidence. As we have noted, Rule
    401 does not set a high standard. See 
    Steele, 685 F.2d at 808
    ;
    see also 
    Sampson, 980 F.2d at 888
    (stating that “the burden [on
    the proponent of the evidence] is not onerous”). Just as evidence
    that Kemp had recently been married would have made it more
    probable that White had actually made this statement to
    Hawkins, the fact that Kemp had been married so long ago made
    it less probable. Moreover, Hawkins has failed to explain why
    this evidence was unfairly prejudicial to him. He was free to
    65
    present his explanation that notwithstanding the date of Kemp’s
    actual marriage, White had said that the $5,000 was for a
    wedding present, and he did so in his closing argument.
    Accordingly, we perceive no reason to conclude that the District
    Court abused its “very substantial discretion” in admitting this
    evidence. United States v. Ali, --- F.3d ----, 
    2007 WL 2049008
    (3d Cir. 2007) (internal quotation marks omitted).
    G.     Hawkins’s Jury Instructions Challenge
    Hawkins also challenges the jury instructions regarding
    his conviction for aiding and abetting wire fraud, arguing that
    the District Court failed to explain to the jury that it was required
    to find Hawkins’s culpable participation in the specific scheme
    charged in the indictment. Because Hawkins did not raise this
    challenge until after the close of trial, we review for plain error.
    Fed. R. Crim. P. 30(d). Under the plain error standard, we will
    reverse the District Court only upon finding “(1) an error; (2)
    that is plain; and (3) that affected substantial rights.” United
    States v. Dobson, 
    419 F.3d 231
    , 236 (3d Cir. 2005). Here, we
    find no error.
    Hawkins argues that the jury instructions failed to
    conform to Dobson’s requirement that the defendant culpably
    participate in the illicit enterprise charged in the indictment. 
    Id. at 237.
    In Dobson, the defendant, Dobson, was charged with
    mail fraud (among other things). 
    Id. at 234.
    Dobson had
    worked as a salesperson for Universal Liquidators (UL), which
    claimed to be in the business of locating and reselling surplus
    merchandise. 
    Id. Dobson’s role
    was to convince individuals to
    pay approximately $5,000 to UL for access to this merchandise,
    which the individuals could then sell to the public at a profit. 
    Id. However, UL
    was a hoax – it was not actually able to connect
    individuals with deeply discounted merchandise. 
    Id. Further, Dobson,
    while marketing this “opportunity,” made
    misrepresentations of her own, such as claiming that by selling
    merchandise acquired through UL she had made enough money
    to purchase a horse ranch. 
    Id. at 235.
    We found that the District Court had committed plain
    error because its jury instructions failed to “require[] a
    66
    determination of whether Dobson knowingly participated in
    UL’s broader scheme to defraud.” 
    Id. at 238.
    The instructions
    merely called upon the jury to determine “whether the defendant
    knowingly devised or participated in a scheme to defraud.” 
    Id. (emphasis added).
    We explained that the “case present[ed] two
    layers of potential fraud or misrepresentation that do not
    necessarily interconnect: (1) Dobson’s dubious sales
    presentations; and (2) the fraudulent UL scheme charged in the
    Indictment.” 
    Id. While only
    the second kind of fraud was
    charged in the indictment, the jury instructions permitted the jury
    to convict upon finding either kind. 
    Id. Accordingly, we
    held
    that the instructions had “omitted the prosecution’s obligation to
    show that Dobson knowingly devised or participated in the
    broader UL scheme as charged in the Indictment.” 
    Id. At bottom,
    Dobson simply ensures that the jury
    instructions require the jury to find that the defendant culpably
    participated in the particular “illicit enterprise” that was charged
    in the indictment. 
    Id. at 237.
    We have no doubt that the jury
    instructions in this case did so. The indictment charged Hawkins
    with aiding and abetting honest services wire fraud.
    Accordingly, the relevant scheme was the “scheme to defraud
    the City of Philadelphia and its citizens of the right to defendant
    COREY KEMP’s honest services.” (App. at 581.) The District
    Court defined honest services fraud extensively, and then
    referred the jurors to the verdict sheet, which, as relevant here,
    charged Hawkins with aiding and abetting honest services wire
    fraud. The Court explained that:
    [O]nly a public official owes a duty of honest
    services to the people he serves. Thus, of the
    defendants in this case, only Kemp is a public
    official. Each of the other defendants, who are
    private citizens, by himself or herself may not
    commit a substantive offense of honest services
    fraud as charged in the indictment.
    However, you may nevertheless find one or
    more of the other defendants guilty of honest
    services fraud, if you find beyond a reasonable doubt
    that such a defendant aided and abetted; that is,
    assisted a public official who was committing this
    67
    crime to commit this crime.
    (App. at 9652.)
    The District Court went on to instruct the jury that:
    Before a defendant may be held responsible for
    aiding and abetting others in the commission of a
    crime, it is necessary that the government prove
    beyond a reasonable doubt that the defendant
    knowingly and deliberately associated himself or
    herself in some way with the crime charged and
    participated in it with the intent to commit the crime.
    In order to be found guilty of aiding and
    abetting the commission of a crime, the government
    must prove beyond a reasonable doubt that the
    defendant:
    First, knew that the crime charged was
    to be committed or was being committed.
    Second, knowingly did some act for
    the purpose of aiding the commission of that crime.
    And third, acted with the intention of
    causing the crime charged to be committed.
    (App. at 9653.)
    These instructions contained the direct link between
    Hawkins’s actions and the specific scheme that was charged in
    the indictment – the scheme to deprive the public of Kemp’s
    honest services – that was lacking in Dobson. The instructions
    left no danger that Hawkins would be convicted for aiding and
    abetting some other scheme. Accordingly, we conclude that the
    instructions are consistent with Dobson’s teaching, and we reject
    Hawkins’s argument.
    H.     District Court’s Questioning the Jury and
    Discharging Juror 11
    1.     Individual Questioning
    All appellants argue vigorously that the District Court
    should not have questioned the jurors about Juror 11's alleged
    68
    misconduct. We review “a trial court’s response to allegations
    of juror misconduct for abuse of discretion.” United States v.
    Boone, 
    458 F.3d 321
    , 326 (3d Cir. 2006). Here, we conclude
    that the District Court acted within its discretion when it
    individually questioned the jurors.
    We have recently had occasion to set forth the applicable
    legal standard governing the district courts’ latitude to question
    jurors during deliberations about allegations of misconduct. In
    Boone, we recognized that “[i]t is beyond question that the
    secrecy of deliberations is critical to the success of the jury
    system.” 
    Id. at 329.
    At the same time, we emphasized that “[i]t
    is also manifest, however, that a juror who refuses to deliberate
    or who commits jury nullification violates the sworn jury oath
    and prevents the jury from fulfilling its constitutional role.” 
    Id. Attempting to
    reconcile these disparate values, we held that
    “where substantial evidence of jury misconduct – including
    credible allegations of jury nullification or of a refusal to
    deliberate – arises during deliberations, a district court may,
    within its sound discretion, investigate the allegations through
    juror questioning or other appropriate means.” 
    Id. We stressed
    that a district court, “based on its unique perspective at the
    scene, is in a far superior position than this Court to
    appropriately consider allegations of juror misconduct, both
    during trial and during deliberations.” 
    Id. Applying that
    legal principle in Boone, we affirmed the
    District Court’s decision to question a juror after the Court
    received a note stating:
    We have some serious concern about one of our
    fellow jurors. He has told . . . all of us several times
    that his best friend is a cop, and he has several guns,
    some unregistered and being stored at his friend’s
    house. This leads us to believe that he lied on his
    initial questionnaire for jury selection. Also, he
    refuses to discuss certain [counts] because he had his
    mind made up before we started deliberating. He has
    said he does not believe anything the police said and
    thinks everyone is lying. We feel this seriously
    affects our deliberations. Our votes are 11 to [ ] 1 on
    69
    four [counts] and we have agreed on four. The juror
    in question has stated they will not change their mind
    [sic] and does not want to work at any evidence or
    discuss any testimony. We seem to be at an impasse.
    Please help us. Thank you, [jury foreperson].
    
    Id. at 324
    (alterations in original). The appellant argued that this
    note presented insufficient justification for the District Court to
    question the juror. We rejected that argument, explaining that
    “[a]lthough this evidence was far from unambiguous, there was a
    sufficient indication that Juror X was violating his oath to
    provide discretion to the trial judge to investigate further.” 
    Id. at 330.
    Accordingly, the legal standard is clear: a district court
    may investigate allegations of juror misconduct when presented
    with “substantial evidence” of that misconduct. All appellants
    protest that the District Court here was not presented with
    substantial evidence of misconduct.
    The first individualized investigation was precipitated by
    two notes: one accused a juror of being biased, while another
    accused a juror of refusing to consider evidence and deliberate.
    This evidence is at least as strong as that presented in Boone,
    and, recognizing that the District Court was in the best position
    to understand and respond to the exigencies of the situation, we
    conclude that those notes amounted to “substantial evidence of
    jury misconduct.”
    The District Court’s second voir dire was also an
    acceptable use of its discretion. It is true that the note that
    prompted this investigation was ambiguous: a court could have
    read the note either to state that further deliberations would be
    useless because the jurors simply could not agree or because one
    juror was violating her oath by failing to participate. While the
    note alone may have been insufficient to justify questioning the
    jurors a second time, the District Court was not operating from a
    blank slate. The District Court had previously fielded
    complaints from jurors – both by note and during the first
    questioning – that Juror 11 was failing to deliberate. Thus, the
    District Court certainly could have interpreted this note to allege
    70
    further misconduct, which, taken in tandem with previous
    allegations, was sufficient to permit the District Court to exercise
    its discretion to investigate further. See 
    Boone, 458 F.3d at 330
    (stating that “[t]he fact that a different judge may have chosen
    not to conduct a[n] investigation is irrelevant”). Accordingly,
    we conclude that the District Court acted within its discretion in
    choosing to conduct a second session of individual questioning.
    Finally, the third investigation was also appropriate. This
    series of questioning was prompted by the District Court’s
    receiving two notes: the first claimed that a juror was biased, and
    the second exhorted the judge to question the jurors. A specific
    allegation of bias, made after the District Court had exhaustively
    instructed the jurors on proper and improper bias, provided
    substantial evidence of juror misconduct.
    While it may be more intrusive to question each juror
    individually, as occurred here, than only the subject of the
    allegation of misconduct, as occurred in Boone, we nevertheless
    conclude that the District Court acted well within its discretion
    when it used the more-expansive mode of investigation. We
    have recognized that there are times in which individual
    questioning is the optimal way in which to root out misconduct,
    see United States v. Resko, 
    3 F.3d 684
    , 686 (3d Cir. 1993)
    (holding that district court’s use of questionnaire, instead of, for
    instance, individualized voir dire, was “inadequate to enable the
    court to fulfill its responsibility of providing an appropriate
    cautionary instruction and of determining whether prejudice
    resulted from the jury misconduct”); United States v. Console,
    
    13 F.3d 641
    , 667 (3d Cir. 1993) (calling individual voir dire the
    “method of inquiry [that] we have preferred”), and that the
    District Court must utilize procedures that will “provide a
    reasonable assurance for the discovery of prejudice,” Martin v.
    Warden, Huntingdon State Corr. Inst., 
    653 F.2d 799
    , 807 (3d
    Cir. 1981). Crucially, the District Court took care to limit its
    questions to appropriate matters that did not touch on the merits
    of the jury’s deliberation, and expressly informed each juror on
    multiple occasions that he or she should not reveal the substance
    of the deliberations. See United States v. Edwards, 
    303 F.3d 606
    , 634 n.16 (5th Cir. 2002) (explaining that “the district court
    was very careful; it insisted that the jurors refrain from
    71
    describing the content and method of their deliberations”). As
    we have recognized, the District Court was in the best position to
    evaluate what kind of investigation the circumstances demanded,
    see 
    Boone, 458 F.3d at 329
    ; here, its decision was reasonable.
    Accordingly, we conclude that the District Court acted within its
    discretion to question the jurors on all three occasions.
    2.     Discharging Juror 11
    All appellants also assert that the District Court erred by
    dismissing Juror 11. We review the dismissal of a juror for
    cause for abuse of discretion. See United States v. Gambino, 
    788 F.2d 938
    , 949 (3d Cir. 1986). Here, the District Court acted
    within its discretion in discharging Juror 11.
    While it is undisputed that in certain circumstances,
    district courts may discharge a juror for cause during
    deliberations, see Fed. R. Crim. P. 23(b), we have yet to
    enunciate the appropriate standard.24 Any standard must
    accommodate two clashing interests. First, it is clear that “a
    court may not dismiss a juror during deliberations if the request
    for discharge stems from doubts the juror harbors about the
    sufficiency of the government’s evidence.” United States v.
    Brown, 
    823 F.2d 591
    , 596 (D.C. Cir. 1987). Any other rule
    would eviscerate the right to a unanimous verdict of guilt. See
    
    id. On the
    other hand, courts agree that a district court has the
    authority to dismiss a juror – even during deliberations – if “that
    juror refuses to apply the law or to follow the court’s
    instructions.” United States v. Abbell, 
    271 F.3d 1286
    , 1302
    (11th Cir. 2001) (per curiam). That is because “a juror who
    refuses to deliberate or who commits jury nullification violates
    the sworn jury oath and prevents the jury from fulfilling its
    constitutional role.” 
    Boone, 458 F.3d at 329
    . While the
    jurisprudence discussing the discharge of jurors during
    deliberations has largely focused on a refusal to deliberate or
    jury nullification, its reasoning applies with equal force to claims
    24
    We expressly left this issue open in Boone. 
    See 458 F.3d at 329
    n.4.
    72
    of juror bias.25 Cf. Gov’t of V.I. v. Dowling, 
    814 F.2d 134
    , 139
    (3d Cir. 1987) (“The trial court’s finding [of whether a juror is
    biased] is a finding of ‘historical fact: did a juror swear that he
    could set aside any opinion he might hold and decide the case on
    the evidence, and should the juror’s protestation of impartiality
    have been believed.’” (quoting Patton v. Yount, 
    467 U.S. 1025
    ,
    1036 (1984)).
    Because of the danger that a juror will be discharged
    based on that juror’s view of the evidence, courts “apply a tough
    legal standard.” 
    Abbell, 271 F.3d at 1302
    . In Brown, for
    instance, the D.C. Circuit held that “if the record evidence
    discloses any possibility that the request to discharge stems from
    the juror’s view of the sufficiency of the government’s evidence,
    the court must deny the 
    request.” 823 F.2d at 596
    . Similarly, in
    United States v. Thomas, 
    116 F.3d 606
    (2d Cir. 1997), the
    Second Circuit adopted the “any possibility” standard set forth in
    Brown. 
    Id. at 622.
    Subsequently, however, courts have slightly modified that
    language. The Ninth Circuit has held that “if the record
    evidence discloses any reasonable possibility that the impetus
    for a juror’s dismissal stems from the juror’s views on the merits
    of the case, the court must not dismiss the juror.” United States
    v. Symington, 
    195 F.3d 1080
    , 1087 (9th Cir. 1999). The court
    determined that it was necessary to include the word
    “reasonable,” given that “[i]t may be that ‘[a]nything is possible
    in a world of quantum mechanics.’” 
    Id. at 1087
    n.5 (second
    alteration in original) (quoting United States v. Watkins, 983
    25
    We note that in many instances of bias, a district court
    will be able to focus on the existence of a particular act that gives
    rise to the bias. See, e.g., United States v. Egbuniwe, 
    969 F.2d 757
    ,
    763 (9th Cir. 1992) (source of anti-prosecution bias stemmed from
    a particular incident of an alleged “false arrest and rough treatment
    of [a juror’s] girlfriend by law enforcement officers”). The rule we
    announce today does not apply to the type of bias that does not
    require the District Court to investigate a topic that implicates the
    secrecy of jury deliberations. See 
    Symington, 195 F.3d at 1087
    n.6;
    
    Thomas, 116 F.3d at 621
    .
    
    73 F.2d 1413
    , 1424 (7th Cir. 1993) (Easterbrook, J., dissenting)).
    Similarly, in Abbell, the Eleventh Circuit held that “a juror
    should be excused only when no ‘substantial possibility’ exists
    that she is basing her decision on the sufficiency of the
    
    evidence.” 271 F.3d at 1302
    . The court explained that it meant
    for the standard to “be basically a ‘beyond reasonable doubt’
    standard,” that it intended district courts to apply the “substantial
    possibility” standard, and that it would then review the district
    courts’ factual findings for clear error. 
    Id. at 1302-03.
    While there is a slight difference in the standards as
    expressed by the D.C. and Second Circuits as compared to the
    Ninth and Eleventh Circuits, we believe that the difference is
    one of clarification and not disagreement. To the extent that
    there is a difference, we believe that the articulation of the Ninth
    and Eleventh Circuits is superior. That standard will allow us to
    avoid abstract “anything is possible” arguments, provide district
    courts with some leeway in handling difficult juror issues, and
    protect each party’s right to receive a verdict rendered by a jury
    that follows the law. At the same time, the standard is by no
    means lax: it corresponds with the burden for establishing guilt
    in a criminal trial, so we are confident that it will adequately
    ensure that jurors are not discharged simply because they are
    unimpressed by the evidence presented.26 We adopt such a high
    26
    The need for such a high standard prior to dismissal
    comes from a federal criminal defendant’s Sixth Amendment right
    to a unanimous jury verdict. If the Government is able to remove
    a holdout juror because of ambiguous allegations of improper
    behavior during deliberations, and replace this holdout with a more
    amenable juror, then the defendant’s constitutional right to a
    unanimous verdict has been violated. Put differently, each juror
    must find the defendant guilty beyond a reasonable doubt. We are
    convinced that the “beyond a reasonable doubt” standard best
    protects a defendant’s constitutional right to a unanimous verdict.
    A hypothetical illustrates our concerns. Assume that Juror X is a
    holdout. Assume that Juror X wants to vote to acquit the
    defendant. If a district court finds, by a mere preponderance of the
    evidence, that Juror X’s act of holding out is causally due to bias,
    then there is an up to 49% chance that Juror X’s belief in acquittal
    74
    standard in part because, as a result of our recent decision in
    Boone, a district court in the Third Circuit has more leeway to
    investigate juror misconduct than in other circuits. See, e.g.,
    
    Symington, 195 F.3d at 1086
    ; 
    Thomas, 116 F.3d at 618-21
    ;
    
    Brown, 823 F.2d at 596
    . Accordingly, we hold that the district
    courts may discharge a juror for bias, failure to deliberate, failure
    to follow the district court’s instructions, or jury nullification
    when there is no reasonable possibility that the allegations of
    misconduct stem from the juror’s view of the evidence.
    Here, the evidence supporting the District Court’s
    conclusion is overwhelming. The District Court carefully and
    correctly instructed the jurors on the distinction between
    permissible and impermissible bias, and during the final voir
    dire, ten jurors reported that Juror 11 was improperly biased.27
    Significantly, the District Court ruled that Juror 11 was not
    credible, and we see no reason to upset that conclusion. See Kirk
    v. Raymark Indus., Inc., 
    61 F.3d 147
    , 153 (3d Cir. 1995)
    (stressing that “the district court should not rely simply on the
    is causally traced to Juror X’s belief in the defendant’s innocence.
    But if Juror X is removed from the jury, then the defendant loses
    out on having a holdout juror who legitimately (i.e., on the merits)
    believes that the government has not satisfied its “guilty beyond a
    reasonable doubt” standard. The only way to satisfy the
    defendant’s constitutional right to a unanimous verdict in the juror
    discharge context is to only permit removal when the District Court
    finds, beyond a reasonable doubt, that the holdout’s reasons were
    not related to the merits of the case.
    27
    We also note that, in this case at least, the final interview
    with the jurors controls the inquiry. Even though – among other
    complaints – the jurors claimed that Juror 11 was biased before the
    first voir dire and immediately after the second, the District Court
    never questioned the jury about this until the third voir dire. Thus,
    the third voir dire was the first chance for each juror to fully detail
    any concerns that he or she had about Juror 11's bias. Further, it
    was before the final voir dire that the District Court
    comprehensively distinguished between permissible and
    impermissible bias.
    75
    jurors’ subjective assessments of their own impartiality”);
    
    Abbell, 271 F.3d at 1303
    (stating that “because the demeanor of
    the pertinent juror is important to juror misconduct
    determinations, the district court is uniquely situated to make the
    credibility determinations that must be made in cases like this
    one: where a juror’s motivations and intentions are at issue”).
    Even on the sterile record before us, the District Court’s
    conclusion is inescapable. Based on what the other jurors
    reported, it is simply unbelievable that Juror 11 really stated that
    FBI agents were among the most credible witnesses. Such a
    statement is so inconsistent with all the other reports that it tends
    to prove the opposite: that Juror 11 was indeed biased and
    constructed a post hoc story to try to obfuscate that bias.
    In addition to the refrain of allegations of bias, during the
    final voir dire eight jurors reported that Juror 11 was refusing to
    deliberate and ten jurors reported that Juror 11 was refusing to
    discuss the evidence. For instance, Juror 6, Juror 11's staunchest
    defender, reported that Juror 11 was deliberating and was not
    biased; however, even Juror 6 believed that Juror 11 was
    refusing to look at the evidence. A refusal to deliberate or
    discuss the evidence may well be a manifestation of underlying
    bias: if a juror makes up her mind based on beliefs formed
    before the trial began, she would have no reason to discuss the
    evidence with other jurors. Here, the vast majority of jurors
    concluded that Juror 11 acted inappropriately in those ways, too.
    We emphasize that the District Court removed Juror 11 because
    of her bias, and we therefore need not address whether the
    District Court would have abused its discretion if it removed
    Juror 11 on refusal to deliberate grounds rather than due to bias.
    Given that the “reasonable possibility” test we have
    adopted is similar to the beyond-a-reasonable-doubt standard,
    analogizing this situation to a criminal proceeding is useful. We
    have little doubt that if ten or 11 out of 12 witnesses testified
    against a defendant, and the defendant testified in a patently
    unbelievable manner, the jury could find guilt beyond a
    reasonable doubt. Similarly, under the circumstances presented
    here, we conclude that the District Court appropriately exercised
    its discretion in concluding that there was no reasonable
    possibility that the allegations against Juror 11 were based on her
    76
    view of the evidence.
    Our decision comports with the leading cases to consider
    the discharge of a juror during deliberations. Those that
    reversed the District Court’s decision to discharge involved
    much more equivocal evidence of misconduct. For instance, in
    Brown, upon questioning a juror who claimed that he was unable
    to perform his duty and apply the law, the juror revealed that he
    had a problem with “the way [the RICO statute was] written and
    the way the evidence has been presented,” and that “[i]f the
    evidence was presented in a fashion in which the law is written,
    then, maybe, I would be able to discharge my 
    duties.” 823 F.2d at 592-94
    . That response, which was uncontradicted on the
    record, clearly points to the juror’s view of the evidence.
    Similarly, in Thomas, the jurors presented varying
    explanations of the nature of their problem with the other 
    juror. 116 F.3d at 623-24
    . Five jurors stated that the juror at issue was
    unyieldingly in favor of acquitting the defendants, either because
    the defendants were “his people,” because the defendants were
    “good people,” or because the defendants committed the crime
    out of economic necessity. 
    Id. at 611.
    On the other hand, five
    jurors linked the juror at issue’s reticence to convict to his views
    about the evidence – one juror stated that the juror was
    discussing the evidence, and four others stated that he had found
    the evidence insufficient or unreliable. 
    Id. The true
    basis for the
    juror’s feelings was thus unclear, and accordingly, the court
    concluded that the district court erred in discharging him. 
    Id. at 624.
    Meanwhile, in Abbell, the Eleventh Circuit affirmed the
    district court’s decision to discharge a juror where the court
    explained that early on in the process the juror at issue had made
    comments about not having to follow the law, and even after the
    court gave corrective instructions, the majority of the other
    jurors still reported that the other juror would not consider the
    evidence or discuss the 
    law. 271 F.3d at 1303-04
    . The juror at
    issue’s “own testimony on her commitment to following the law
    was not certain.” 
    Id. at 1304.
    While only a majority of jurors
    stated that the discharged juror was not engaging in
    deliberations, 
    id. at 1303-04,
    the juror’s own statements revealed
    77
    her inability to follow the oath she took as a juror.
    The instant case is much more similar to Abbell than
    Brown and Thomas. The District Court carefully and patiently
    examined the jurors on multiple occasions to isolate the root of
    the allegations of misconduct. After the District Court received
    near-unanimous reports that Juror 11 was biased, and after
    hearing a manifestly incredible rendition from Juror 11, the
    Court discharged Juror 11. The evidence was so overwhelming
    that Juror 11 was biased that it would have been “a dereliction of
    duty for a judge to remain indifferent.” 
    Thomas, 116 F.3d at 616
    . Accordingly, we will affirm the District Court’s decision to
    discharge Juror 11.
    IV.
    For the foregoing reasons, we will affirm Kemp’s,
    Holck’s, Umbrell’s, Hawkins’s, and Knight’s judgments of
    conviction.
    78
    

Document Info

Docket Number: 05-3477

Filed Date: 8/27/2007

Precedential Status: Precedential

Modified Date: 10/13/2015

Authorities (67)

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