Full opinion text
MEMORANDUM BAYLSON, District Judge. TABLE OF CONTENTS I.Denial of Motion for Judgment of Acquittal....................................343 A. Conspiracy/Honest Services Fraud.......................................343 B. Factual Summary .....................................................344 C. Legal Discussion......................................................348 1. Banks Loans as a Component of Bribery..............................348 2. Temporal Attenuation between the Quid and the Quo...................351 3. Other Arguments by Hoick and Umbrell Re: Conspiracy Law...........354 4. “Conflict of Interest” Prong.........................................355 D. Mail Fraud...........................................................356 II. Denial of Motion for New Trial ..............................................356 A. The Fact that Hoick and Umbrell Were Convicted of Conspiracy Is an Additional Reason Why They Are Not Entitled to a New Trial Under Dobson.............................................................356 B. Additional Jury Charge Issues ..........................................358 C. Whether a New Trial Should Be granted or a Hearing Held as to Juror No. 6’s Alleged Failure to Disclose Part-Time Position as a Real Estate Agent .......................................................360 1. Alleged Juror No. 6’s Misconduct and Bias in “Concealing” Her Part-Time Occupation as a Real Estate Agent during Voir Dire.....360 a. McDonough Prong One: Intentional Withholding Of Material Information.................................................360 b. McDonough Prong Two: Valid Basis for Challenge for Cause.....362 2. Introduction of Extrinsic Evidence into Deliberations...................364 3. Hearing Is Not Necessary under the Facts............................367 D. The Court Allowed Adequate Voir Dire, including the Opportunity of Individual Defense Counsel to Question the Potential Jurors..............368 E. The Court Did Not Err in its Ruling on the Admissibility of Evidence.....371 1. Admissibility of the Flores and Church Loans .........................371 2. Admissibility of the Schnapp Loan ...................................372 a. Schnapp Loan as Intrinsic to the Charged Offense .................372 b. Schnapp Loan Admissible under Rule 404(b).......................373 375 3. Admissibility of Co-Conspirator Statements...................... F. There Were No Violations of Brady v. Maryland or Other Prosecutorial G. 376 376 Misconduct.................................................... Ex Parte Communications with Deputy Clerk Issue................... III. Conclusion.......................... 379 Glenn Hoick (“Hoick”) and Stephen M. Umbrell (“Umbrell”) were convicted of participating in a conspiracy to commit honest services mail fraud and two counts of aiding and abetting honest services mail fraud. The extensive background of this case, which included a lengthy trial, is set forth this Court’s prior Memorandum, U.S. v. Kemp, 379 F.Supp.2d 690 (2005), and other Memoranda identified therein. The Court issued an Order dated September 29, 2005 denying defendants’ motions for acquittal under Rule 29, F.R.Crim. P. which the Court had held under advisement when first made at trial, and for new trial under Rule 33, F.R.Crim. P. The Court imposed sentence on Hoick and Umbrell on October 6, 2005. This Memorandum will review the sufficiency of the evidence as to Hoick and Umbrell, and reasons for denial of their Motion for New Trial as to those grounds for which the Court has not yet explained its reasons. I. Denial of Motion for Judgment of Acquittal A. Conspiracy/Honest Services Fraud Initially, Hoick and Umbrell vigorously dispute this Court’s prior interpretation of the crime of honest services fraud contained in the Court’s Memorandum of October 29, 2004, 2004 WL 2612017. The Third Circuit not having issued any decisions on honest services mail fraud since that Memorandum, the Court will stand by its interpretation and apply it to the facts which were proved at trial, viewed in the light most favorable to the government. In summary, the Court finds that the evidence is sufficient under the first prong of honest services fraud, a quid pro quo bribery scheme, but insufficient under the second prong of honest services mail fraud, the so called conflict of interest prong. Hoick was President, of Commerce Bank/Pennsylvania (“Commerce”) .and Umbrell was a Regional Vice President of the bank. Commerce had enlisted the services of Ronald White, Esquire, (“White”), originally a defendant in this case until his death prior to trial, to assist Commerce in obtaining business in the City of Philadelphia, which the indictment did not. allege was unlawful, and the Court specifically charged the jury was lawful. See N.T. 4/7/05, at 252. The evidence showed that Hoick and Umbrell, on behalf of Commerce, aggressively sought increased business with the City of Philadelphia. Defendant Cory Kemp, (“Kemp”), as City Treasurer, had significant influence as to the placement of bank deposits. Commerce was also interested in making loans to, and increasing deposits by, the city or city-related entities. The government’s theory against Hoick and Umbrell was that they used their lawful relationship with Ronald White to gain influence with Kemp, and gave Kemp significant and favorable loans, which deviated from the normal Commerce standards, both procedural and susbstantive standards, and were based on unusually and unwarrantedly generous credit standards; in return, Kemp gave preferential treatment to Commerce in getting city business in exchange for the benefits which Kemp received from White, Hoick and Umbrell. Hoick and Umbrell, through their highly able counsel, aggressively contested the government’s evidence at trial, and vigorously cross examined government witnesses in an attempt to rebut the government’s arguments so that the jury would find that their clients had acted as rational, honest bankers in acting in the interest of their employer, Commerce, and had not joined the alleged conspiracy. Hoick and Umbrell did not present any evidence. After carefully listening to approximately 27 days of testimony, including a large number of recorded conversations in which the vocal intonations and expressions may have made a distinct impression on the jury, plus four days of arguments, and after lengthy deliberations, the jury convicted Hoick and Umbrell of conspiracy as charged in Count 1, and two counts of aiding and abetting honest services mail fraud, Count 19 relating to honest services wire fraud arising out of a January 29, 2003 e-mail from Hoick to Commerce CEO Vernon Hill (“Hill”) regarding city deposit accounts, Ex. 1058; and Count 21, honest services wire fraud arising out of a May 28, 2003 telephone call between White and Hoick, Ex. 194. The jury acquitted Hoick and Umbrell on several counts of aiding and abetting honest services wire fraud, and was unable to reach a verdict on several other counts. The Court has reviewed the testimony at trial and .the voluminous post-trial briefing submitted by Hoick and Umbrell and the government, and has concluded that it would be legal error to overturn the jury’s verdict. Although the evidence as to Hoick and Umbrell is largely circumstantial, there is sufficient evidence in the record to sustain the verdict. B. Factual Summary This Memorandum will merely summarize the voluminous evidence at trial. The government’s evidence against Hoick and Umbrell showed that they, often acting together, but sometimes separately, had made a conscious decision to give to Kemp, either personally or to other persons or entities for which he requested loans, a series of favorable loans and to ask for, and receive in return, preferential treatment from Kemp in awarding city-related business to Commerce. Some of these loans were made directly to Kemp, and some were made at Kemp’s request to either Kemp’s relatives or a church in which Kemp was active. Kemp became the City Treasurer in April 2002. Shortly thereafter, on May 13, 2002, several Commerce executives arranged to meet with Kemp to promote additional business for Commerce, and reported on this meeting to Commerce’s CEO Hill, in one of a series of regular reports called “Monday morning update” in which Umbrell states “Kemp is relatively new and we can position ourselves as a consultant to him.” See Ex. 1026. White also helped Commerce set up a meeting with Kemp in early 2003. See Ex. 1058, which is also the subject of Count 19, see below. After this meeting, Hoick reported to Hill that Kemp was favorable in increasing city business for Commerce. See Ex. 1126. The first loan which the evidence showed that Commerce made at Kemp’s request was to Paul Schnapp, related to Kemp by marriage, and also a close personal friend. This occurred shortly after the initial May 13, 2002 meeting referred to above. Several days after this meeting, Umbrell approved a $10,000 unsecured loan to Schnapp and his wife. See Ex. 1143(a)(b)(c). Because Schnapp had previously declared bankruptcy, the jury could have found from the speedy processing of this loan and the overall circumstances, it was made with the intent to secure favor with Kemp. In contrast to the favorable treatment which Umbrell gave Schnapp at Kemp’s request, some months subsequent, in July 2003, Schapp tried unsuccessfully on his own to get additional funds from Commerce, but then, complained to Kemp that Umbrell wanted additional co-signers. Kemp refused to help Schnapp at that time, and without any request from Kemp, Umbrell refused to grant Schnapp’s request. The government relied heavily at trial on two personal mortgage loans which Hoick and Umbrell extended to Kemp to buy a $225,000 house in late 2002 near Reading, Pennsylvania for 100% financing, i.e., with no money down. There was extensive evidence at trial about the processing of these loans and the evidence allowed the jury to find that Hoick and Umbrell had purposely bypassed normal Commerce procedures and credit standards in approving this loan to Kemp. In contrast, a year previously, before Kemp had become Treasurer, his request for a $2,000 line of credit had been rejected by Commerce because of his credit history. See Exs. 1098, 1099. Concerning the first mortgage loan, the evidence allowed the jury to conclude that Umbrell, working together with Hoick, had approved this mortgage before Kemp had even completed a loan application; as to both the first loan, for 80% of the value, and the second loan, for the remaining 20% of the value, Hoick and Umbrell bypassed standard Commerce Bank procedures as to which numerous other witnesses from Commerce testified at trial, for a 100% financing loan, which was unwarranted with Kemp’s credit and financial background. The jury could have concluded that Hoick and Umbrell went out of their way to make a highly favorable loan to Kemp that would not have been made in ordinary circumstances to a bank customer, without Kemp’s power to give City of Philadelphia business to Commerce. To be sure, Hoick and Umbrell had an answer at trial for all of these contentions and virtually every piece of evidence. Commerce Bank employees who testified for the government were skillfully and vigorously cross-examined. On cross-examination, in many instances, they qualified or conditioned and at times even contradicted the -testimony they had given on direct examination. Hoick and Umbrell’s briefs cite to this selected testimony as showing that Kemp did not receive favorable treatment, but the entire 'evidence allowed the jury to find otherwise, and the Court must consider the evidence in the light that is favorable to the government. As one example of Hoick’s and Um-brell’s personal involvement in favoring Kemp with a mortgage, on December 11, 2002 they signed a document waiving all the" conditions which lowerranking Commerce employees had recommended for this loan, see Ex. 1084(g), without any explanation, contrary to bank policy. See Ex. 1077. The government also points out that although Umbrell had authority to approve this mortgage himself, he sought Hoick’s approval and the jury could infer he acted so as to seek the cover of his superior in approving this mortgage. When the Commerce department handling the second mortgage loan for the remaining 20% of the price of the home (not covered by the first mortgage), Um-brell further acted to bypass the usual Commerce policies, and approved the loan. See Ex. 1084(n). On a form requiring an explanation for exceptions to the Commerce policy, Umbrell noted that Kemp was “Treasurer of the City of Philadelphia” and also cited his “strong bank relationship” and his “sufficient] income.” The jury could have found that Kemp’s personal bank relationship was minimal. His income, with his other expenses, was probably “sufficient.” The jury could have found that 100% financing was granted under unusual circumstances due to Kemp’s position. Umbrell wrote in another responsive e-mail dated December 19, 2002 about this loan and possible delays, Ex. 1086, that “we need to make this happen.” Overall, in the context of the bribery prong of honest services fraud, the evidence would allow the jury to find from the circumstances that the mortgage loans for 100% financing were a substantial favor given to Kemp. Two Commerce loan officers, Charles Creager and Thomas Conte, testified to specific facts that would allow the jury to find that Hoick and Um-brell had not followed Commerce’s stated policies in granting this loan, both as to procedure and substance. Whether it would be the “quid” part of a “quid pro quo” was a. jury question, but the overall evidence allowed this inference. In March 2003, Umbrell was also involved in approving a $21,300 automobile loan to Kemp, and the jury could have found that if Commerce had followed its standard automobile loan policies, the loan to Kemp would not have been made. In fact, the loan was for a greater amount than the cost of the car, and Kemp received $2,200 as “cash out” proceeds from this loan, which helped him meet his obligations on the home mortgage from Commerce. In June 2003, Commerce made a $480,000 construction loan to Kemp’s church in Reading, Pennsylvania at Kemp’s request. Umbrell waived the $3,500 appraisal fee and allowed for an immediate payout of $120,000 of the loan for alleged prior expenses. In one of the recorded conversations between Kemp and Umbrell on June 23, 2003, Ex. 303, Kemp and Umbrell discussed the renewal of some of the city’s certificates of deposit with Commerce, in the very same conversation where Umbrell agreed that he would waive the $3,500 appraisal fee for the church loan. At the end of the call, Kemp tells Umbrell “so you get special treatment.” The government is correct, in its brief, p. 32, that the jury could find this conversation was an explicit quid pro quo, supporting the first prong of the honest services scheme. On the same day, Hoick was requested to, and did, give his approval to these arrangements. The jury could have found that Hoick being involved in this transaction was unusual and unnecessary, but was, with the other facts reviewed, evidence that Hoick and Umbrell joined the conspiracy, which the Court has previously found the evidence sufficient to conclude that White and Kemp had formed. Shortly after the church loan, Umbrell wrote in a Monday morning update to Commerce’s CEO Hill on July 7, 2003, Ex. 1042, about the $480,000 commercial mortgage to Kemp’s church noting that after the closing, he had hosted Kemp and his wife at a Phillies game, and then stated “Kemp indicated that he will move the pending cash management review for the city this month. I updated Ron White accordingly.” Umbrell made further advances to Kemp’s church despite the absence of bona fide invoices supporting the advances. Ex. 1097. Another loan was made in July 2003 by Umbrell in the amount of $7,500 to Kemp’s brother-in-law, Eric Flores, as a favor to Kemp. A phone call between Umbrell and Kemp, Ex. 342, allowed the jury to find that this loan was part of a stream of favors from Commerce to Kemp. The above series of loans were inferentially contrary to Commerce’s economic self interest in maximizing its profits, and the jury may have concluded that Hoick and Umbrell approved these loans to curry favor with Kemp, with the expectation of receiving business in return, because the loans would not have been made but for Kemp’s official position as City Treasurer. There does not appear to be any other rational reason for Commerce to grant so many constant and consistent favors to a public official. In an effort to show Kemp taking action to benefit Commerce as a return of these favors, the government introduced substantial evidence about one significant transaction involving the city’s anti-blight Neighborhood Transformation Initiative (“NTI”) and a line of credit that was being sought from banks by the city’s Redevelopment Authority to fund the NTI program in May 2003. The city, acting through a public finance agent, sought bids from interested banks for the line of credit, and the evidence indicated that the interest rate which the bank would charge for the line of credit was the most important piece of information. There was a great deal of testimony on this topic including from Janice Davis, the former City Finance Director, Kathy Clupper, the city’s financial advisor on the NTI transaction, and representatives of other competing banks, in addition to numerous recorded conversations. The Court will not summarize all of these in this Memorandum, but the jury could find, from a series of conversations between May 28 and June 11, 2003, involving White, Kemp, Hoick and Umbrell, that Kemp clearly was attempting to make sure that Commerce got this business and, with White’s encouragement, was anxious to give Commerce non-public confidential information about the bids of other banks so that Commerce would be able to submit the lowest possible bid. Although there was no testimony that Hoick or Umbrell received anything of value personally for this transaction, or that the interest rate was necessarily profitable, the jury could find that Commerce very much wanted this line of credit, not so much from the interest that it would receive, but more importantly, because of additional city deposits that it anticipated would result from making this loan, and this would be seen by Commerce as a significant piece of business secured by Hoick and Umbrell. The government also introduced evidence that after a first round of bids for the NTI line of credit, it came to the attention of City Finance Director Janice Davis that Kemp had given Commerce confidential competitive information not available to the other banks seeking this business. Davis thereupon ordered a second round of bids, but Kemp took actions to make sure, even on this second round, that Commerce would have the inside track. See Exs. 182-251, 1104, 1114, 1204, 1226. As a result, KBC, Commerce’s closest competitor, declined to participate in the second bid. N.T. 3/29/05, at 74, Ex. 1226. Hoick and Umbrell, often in conversation with White as much as with Kemp, clearly exhibited, in these phone calls, knowledge that Kemp was giving confidential information only to them, and they appreciated it, and acted on it in formulating their own bid. Recognizing the inappropriateness of these communications, Hoick at one point told White “something’s not smelling right.” Ex. 219. In considering all of the evidence, and in particular after listening to the recorded conversations during many trial days, the Court concludes the jury was entitled to find that Hoick and Umbrell eagerly received the confidential information, had reason to know that it was non-public and confidential, and they acted on it, and that Kemp had taken specific steps to make sure Commerce would win this business in return for the benefits Kemp had received from Hoick and Umbrell. C. Legal Discussion Given all of the benefits reviewed above which Commerce had directed to Kemp personally, or to others at Kemp’s request, the jury was entitled to find that Kemp was returning those favors, i.e., he had received the “quid” and by insuring that Commerce would win the NTI line of credit, he supplied the “quo” — and this satisfies the requirements of bribery under the first prong of honest services fraud. In Evans v. United States, 504 U.S. 255, 268, 112 S.Ct. 1881, 119 L.Ed.2d 57 (1992), the court held that bribery requires proof of a quid pro quo where “a public official has obtained a payment to which he was not entitled, knowing that the payment was made in return for official acts.” 1. Bank Loans as a Component of Bribery The government contends that a stream of benefits to a public official, in implicit exchange for one or more official acts, can constitute a bribery, even if the stream of favors is loans, citing United States v. Holzer, 816 F.2d 304 (7th Cir.1989). There is significant factual difference between Holzer and the instant case. In Holzer, a judge received numerous bribes over a long period of time. These bribes were “dressed up” in the form of either 1) outright cash gifts nominally disguised as “loans” but without recourse or repayment or 2) loans that were commercially unreasonable under any possible interpretation. See, e.g., Holzer, 816 F.2d at 308 (“When he asks them for help, either they lend their own money directly to him dr, as if by magic, bank loans that he had tried and failed to get suddenly materialize.”). The nature of these, transactions led the Holzer Court to conclude that: It is doubtful that these transactions should be called “loans." Out of some $200,000 in documented receipts from these sources, Holzer repaid almost nothing; and the evidence supports an inference that he never intended to repay the money in full, realizing that the lawyers and guarantors of the loans would never press him for repayment, because they would fear retribution ... Most of the loans, indeed, seem to have been thinly disguised bribes. Several listed on a private record that Holzer kept of his personal debts were crossed out — without having been repaid. Id. (emphasis added). In short, the “loans” provided to Holzer were essentially unsecured gifts with little or no expectation of repayment. This scenario differs from the instant case, where the relevant “loans” were actual commercial loans with real expectation of repayment. Here, it is not “doubtful” that the loans provided to Kemp and others were true “loans” — they were indeed real loans, and, as such, it is not clear that they fall within Holzer’s precise rhetorical sweep. In support of loans being an appropriate vehicle for a stream of favors, the government introduced sufficient evidence to show, as noted above, that the loans to Kemp, as well as the loans made at Kemp’s request, were either unusually favorable given the credit histories of the recipients and/or were made in derogation of normal Commerce procedures and standards. As a matter of common sense, the jury could have found that giving favorable loans was a form of gratuity, i.e., the recipient (i.e. Kemp) was able, because of his official position, to get loans that another similarly situated private citizen would not have obtained. These loans allowed Kemp to purchase a desirable home and car. As noted in United States v. Woodward, 149 F.3d 46, 55 (1st Cir.1998), upholding a conviction, “a person with continuing and long term interest before an official might engage in a pattern of repeated intentional gratuity offenses in order to coax ongoing favorable action in derogation of a public’s right to impartial official services.” Other cases stand for the proposition that favorable loans are sufficient to sustain a conviction under the bribery statute. First, in United States v. Williams, 705 F.2d 603 (2d Cir.1983), the Second Circuit affirmed numerous convictions of former Senator Harrison A. Williams of New Jersey as part of the high-profile ABSCAM prosecution. In this complicated case, the indictment alleged a conspiracy and eight substantive violations arising out of Williams’ conduct in promising to use his position as a U.S. Senator to help obtain government contracts for the purchase of titanium from a mining venture in which he held an interest. The promises were alleged to have been made in connection with two transactions, the first of which was a proposed loan of $100 million, ostensibly to have been financed by a fictitious entity known as Abdul Enterprises, Ltd. Importantly, “the loan was to be repaid with interest ... Therefore, its value to the defendants was not the amount of the loan, but rather the profits they anticipated making as a result of securing financing for their venture ... the agents did not offer to assure any particular level of profits in connection with the proposed loan.” Williams, 705 F.2d at 620 (emphasis added). For this particular loan transaction, the indictment charged Williams under the bribery statute (18 U.S.C. § 201(c)). See id. at 607 n. 2 (“Counts Two through Four alleged that Senator Williams sought and agreed to receive a loan of money for a business enterprise in which he had an interest.”). On the basis of this proposed favorable loan transaction, the jury convicted Williams of particular bribery charges. On appeal, the Second Circuit affirmed, finding the evidence on that charge sufficient and suggesting no reason to find that the provision of a favorable loan, as opposed to an outright cash gratuity (as had been present in other AB-SCAM prosecutions involving outright cash payments) removed that “gift” from the realm of bribery. While the prosecution in Williams involved only the bribe recipient (ie., the fictitious party offering the loan was comprised of federal agents), if receipt of a favorable loan could be considered receipt of enough of a gift to sustain a conviction under the bribery statute, then giving an unusually favorable loan could likewise inculpate a “lender.” And in this case there was a series of such loans. Second, in a more recent public corruption case, United States v. Serpico, 320 F.3d 691 (7th Cir.2003), r’hg denied, 2003 U.S.App. LEXIS 7307 (7th Cir.2003), several defendants were charged with racketeering, mail fraud, and bank fraud for a variety of transactions including a personal “loans-for-deposits” scheme, in which the defendant union officials “deposited large sums of union money in various banks. In exchange, the two received overly generous terms and conditions on personal loans totaling more than $ 5 million.” Serpico, 320 F.3d at 694 (emphasis added). The jury convicted two of the defendants on mail fraud charges specifically relating to the personal loans-for-deposits scheme. The Court opined: The loans-for-deposits scheme shows even more dramatically that a bank can take on higher risk while acting in what it believes to be its own best interests ... Capitol Bank ... [ ] decided the benefits from the deposits made it worth the risk of loss resulting from the generous terms and conditions of the loans it gave Serpico. But the fact remained that the bank made risky loans at low interest rates that it never would have made absent the scheme. Id. at 695. With regard to sentencing, the district court had calculated the defendants’ sentences under Sentencing Guidelines § 2F1.1 (the fraud guideline), but the government argued on appeal that the Court should have applied § 2E5.1 (the benefit plan bribery guideline). Noting that the Guidelines “encourage[] the district court to find ah appropriate guideline section to fit the conduct (not just the charge),” the Seventh Circuit agreed, and remanded for resentencing under § 2E5.1 because “the loans-for-deposits scheme was basic bribery, with [defendant] promising union deposits to the banks in exchange for favorable personal loans. ” Id. at 697 (emphasis added). While the scenarios involved in these cases do not necessarily parallel the instant case, in both cases particular defendants were convicted of either 1) bribery or 2) fraud on a bribery theory, based specifically on the provision of certain favorable purely-personal or personal-business loans. As such, both provide support for the principle that the provision of favorable loans is sufficient “quid” to sustain a conviction under the bribery statute. The Court concludes that a holding that a loan could not, as a matter of law, constitute a gratuity, or be part of a quid pro quo bribery scheme, would simply open the floodgates for banks and other financial institutions to allow unscrupulous employees to simply use the vehicle of loans to give otherwise prohibited gratuities to public officials — a surely unnecessary and unwise legal conclusion. Although Hoick and Umbrell vigorously argued at trial that their actions with regard to the NTI line of credit were nothing unusual, let alone conspiratorial, the opening brief filed by Hoick and Umbrell, as well as the reply brief, are not fair statements of the overall evidence introduced at trial, particularly on the NTI line of credit transaction. The defense letter brief of September 21, 2005 does contain, in its attachments, the relevant recorded conversations on the NTI line of credit, and the letter brief itself, although acknowledging that the jury could have drawn certain inferences about Kemp’s actions, nonetheless refuses to acknowledge reasonable inferences which the jury could have drawn about the conduct, motive and intent of Hoick and Umbrell. Furthermore, the letter brief treats each of these conversations as a “stand alone” transaction and refuses to draw any lines between them. When those “dots” are connected, and all of the conversations and other evidence are considered as a whole, it is clear that the jury had sufficient evidence with which to convict Hoick and Umbrell, and the jury’s guilty verdict should not be overturned. For this Court to adopt Hoick and Umbrell’s interpretation of these various conversations would run counter to the holding in Continental Ore v. Union Carbide & Carbon Corp., 370 U.S. 690, 691, 82 S.Ct. 1404, 8 L.Ed.2d 777 (1962) (courts must avoid “tightly compartmentalizing the various factual components and wiping the slate clean after scrutiny of each.”). 2. Temporal Attenuation between the Quid and the Quo Prior to oral argument, The Court asked counsel for legal authority concerning whether the alleged quid and the quo in this case were sufficiently close together in time (or, stated differently, whether (and to what degree) temporal attenuation between the quid and the quo raises a legal problem). In response, defendants cited to United States v. Sun-Diamond Growers of California, 526 U.S. 398, 119 S.Ct. 1402, 143 L.Ed.2d 576 (1999) and United States v. Schaffer, 183 F.3d 833 (D.C.Cir.1999) for the principle that the law requires a “temporal nexus” between the alleged thing of value given to Kemp and the official act performed or to be performed in return. However, neither of these cases require a conclusion of temporal attenuation which warrants granting defendants’ motions. In Sun-Diamond Growers, the Supreme Court merely held that, “in order to establish a violation of 18 U.S.C. § 201(c)(1)(A), the Government must prove a link between a thing of value conferred upon a public official and a specific ‘official act’ because of which it was given.” Sun-Diamond Growers, 526 U.S. at 414, 119 S.Ct. 1402. This holding is limited to the principle that there must be some identified connection between the defendant’s intent and a specific official act; however, Sun-Diamond Growers does not discuss the detailed contours of this requirement nor set forth any temporal boundaries — it only required that a “particular official act be identified and proved.” Id. at 406, 119 S.Ct. 1402. Having the benefit of Sun-Diamond Growers, the D.C. Circuit thereafter handed down its opinion in Schaffer. The factual predicate in Schaffer is straightforward. Schaffer, a Tyson Foods executive, gave Secretary of Agriculture Mike Espy several $1,500 tickets (purchased by Tyson) to a presidential inaugural dinner. The tickets had been purchased well prior to January 18, 1993 (the day Espy was given and used the tickets at the dinner). This specific date is important because the Department of Agriculture did not become aware of an E coli outbreak due to bad hamburger meat until that very day, and the specific official acts that the government charged Espy at trial with performing (ie., as the object of the gratuity) were revisions to two official USDA policies (a revised zero tolerance policy and safe handling labels) that related/responded directly to that particular E coli outbreak. Schaffer was convicted for providing the tickets to Espy as an illegal gratuity. The District Court, however, granted a post-trial judgment of acquittal. In reaching this decision, the District Court took the Sun-Diamond Growers’ requirement of a link between gifts and an intent to influence specific official acts of the recipient as its point of departure, and then examined the nexus between the revised USDA policies and the tickets given to Espy to determine if it was strong enough to sustain a finding of intent to influence an official act under the gratuity statute. The District Court concluded that because “there was no evidence that Mr. Schaffer or anybody in Tyson Foods knew or anticipated anything about zero tolerance or mandatory safe handling labels at the time of the inaugural dinner,” the “quo” was “disqualified for temporal reasons.” See Schaffer, 183 F.3d at 839. On appeal, the D.C. Circuit began its analysis by noting that, although Sun-Diamond Growers had established a required “link,” after that case “the magnitude of the necessary link, and its proper translation into a concrete rule of decision, remains in some doubt.” Id. at 840. The Court then engaged in its own review of this question. After having established two latent official actions of interest to Tyson Foods — i.e., revisions to the USDA’s zero tolerance and safe handling label policies — the Court held that if a trier of fact could find that Schaffer had provided the tickets to Espy, “we then ask whether a rational jury could additionally have determined that the thing of value was provided with the requisite statutory intent to influence Espy in has actions with regard to [the zero tolerance and safe handling label] policies.” Id. at 842. In answering this question, the Court first offered this statement: When faced with competing explanations for some specific conduct, conduct which could be either innocuous or illicit depending upon the particular motivation involved, the inquiry will rarely be clean or neat. Both common sense and practical experience, each of which we ascribe to the jury, instruct that human beings rarely act for a single purpose alone. Rather, activity is more typically multi-causal, and directed towards achieving several rather than a single ends. Accordingly, we do not view the question of intent in the Manichean terms of the prosecution and the defense, focusing instead upon the more realistic and probative question of whether the acts in question were substantially, or in large part motivated by the requisite intent to influence [Espy]. As a final caveat, we note that as with most cases in which the defendant’s state of mind is at issue, it may be near impossible to establish the requisite mens rea through direct evidence. In the absence of any specific statement or other contemporaneous documentation of the defendant’s subjective motivation, the trier of fact can do not more than ascribe an intent on the basis of the circumstances surrounding the defendant’s actions. Id. at 843 (emphasis added). After examining the evidence of the timing surrounding the E coli outbreak and the awareness of that outbreak by both the Tyson executives and the USDA, the Court found that there was insufficient evidence from which the “jury could infer that Schaffer and Tyson Foods were aware of the USDA’s intent to act on the relevant issue at the time of the inaugural dinner.” Id. at 844 n. 11. Once the Court removed the E coli outbreak from the picture, all that remained “was an awareness by a regulated entity that the USDA had been developing a new pathogen control policy.” Id. As such, the Court concluded: In our opinion, the inferential leap across the chasm separating this premise from the requisite conclusion — that the tickets were intended, beyond a reasonable doubt, to induce Espy to propose, take, or shy away from some action on zero tolerance, or alternatively to ensure that Tyson Foods’ proposals, suggestions and/or concerns were accorded special scrutiny — cannot be considered reasonable. The breadth of the Supreme Court’s Sun-Diamond opinion with respect to identifying a particular official act must of necessity spill over here, creating the need for a more definitive link than the prosecution provided. To hold otherwise would mean that any time a regulated entity became aware of any inchoate government proposal that could affect its interests, and subsequently provided something of value to a relevant official, it could be held to violate the gratuity statute in the event the inchoate proposal later appeared in a more concretized form. Id. at 845. On this basis, the Court affirmed. On the surface, it might appear that Schaffer provides some persuasive authority for Hoick and Umbrell’s temporal attenuation argument. However, there are two main reasons why this Court does not take it as such. First, as the D.C. Circuit recognized, the U.S. Supreme Court has clearly left the magnitude of the necessary link “in doubt.” Schaffer is a D.C. Circuit opinion, which is obviously not binding in the courts of the Third Circuit. Moreover, research indicates that no other courts (including the Third Circuit) have cited to Schaffer for a specific principle related to “temporal attenuation;” nor have any courts generally opined on an appropriate temporal benchmark. As such, Schaffer is not only inapposite on the facts, it stands on its own in the legal landscape, and is far from “established” law that would control here. Second, and perhaps more important, a more nuanced reading of Schaffer than that offered by counsel for Hoick and Um-brell suggests that Schaffer is better understood as a case about the knowledge— rather than the mere time frame — required to establish the required link. Schaffer was acquitted of the gratuity charges not simply because there was a long period of time between the gifts and the USDA’s policy revisions, but, rather, because of a finding that there was no evidence that Schaffer knew or anticipated anything about those policy revisions (or any other decisions affecting Tyson within Espy’s purview) at the time of the gift giving. See Schaffer, 183 F.3d at 833. If evidence had demonstrated that Schaffer had actually known about the potential USDA policy revisions, nothing in Schaffer says that the D.C. Circuit would have refused to affirm the jury’s verdict merely because of significant temporal attenuation between the gifts and the actual policy revisions. Knowledge may or may not be a product of temporal attenuation (i.e., one could easily conceive of a situation where a lack of knowledge was due to something other than an issue of timing). The factual scenario in Schaffer happened to involve a question of knowledge that hinged on the timing of an outside event, but a case could just as easily turn on something else. Even if Schaffer applied here, the appropriate question under conspiracy and bribery jurisprudence is not whether the favorable loans and Kemp’s official actions were greatly attenuated in time, but, rather, whether Hoick and Umbrell knew or anticipated anything when they made the favorable loans with regard to future acts of Kemp (e.g., the NTI line of credit), or did Kemp’s actions regarding the NTI line of credit evidence a payback as consideration for their having made the loans. The actions of Hoick and Umbrell were not so temporally attenuated that the jury could not find their conduct with regard to both the loans and the NTI line of credit evidenced the scheme to corrupt Kemp. 3. Other Arguments by Hoick and Umbrell Re: Conspiracy Law Some other arguments by Hoick and Umbrell must be considered and are rejected. First, they have insisted, from the very beginning, that not only the indictment, but now, after the trial, the evidence shows that there were multiple conspiracies and the Court, having charged the jury on a single conspiracy, committed error. As indicated in the Court’s prior Memorandum of October 29, the government tried this case on a single conspiracy theory, and the Court charged the jury on a single conspiracy. The issue of whether the government has proved a single or multiple conspiracies is a factual one for the jury. United States v. Perez, 280 F.3d 318, 345 (3d Cir.2002). See, also, United States v. Boyd, 595 F.2d at 120, 123 (3rd Cir.1978): It follows from these basic principles that the government, without committing a variance between a single conspiracy charged in an indictment and its proof at trial, may establish the existence of a continuing core conspiracy which attracts different members at different times and which involves different sub-groups committing acts in furtherance of the overall plan. The Court cannot say, as a matter of law, that the evidence only proved multiple conspiracies. The evidence has shown that the conspiracy charged was to corrupt Kemp, and the government introduced sufficient evidence for the jury to find that Hoick and Umbrell had joined this conspiracy by their conduct reviewed above. It is true that other alleged co-conspirators, such as Janice Knight, as to whom the jury could not reach a verdict on conspiracy, and Le-Van Hawkins, who was acquitted of conspiracy, were involved in other acts, different from Hoick and Um-brell, but this fact does not itself negate the existence of a single conspiracy. Furthermore, Ronald White, whose actions were interconnected with Knight and Hawkins, also interacted with Hoick and Umbrell, most significantly in connection with the NTI line of credit. In fact, considering all of the recorded conversations related to the NTI line of credit, White facilitated Hoick and Umbrell’s use of Kemp to get confidential information that assisted Commerce in winning this piece of business. Hoick and Umbrell also insisted that the government was trying this case on a so called “hub and spoke” type of conspiracy, see Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), and using this concept, they argue the conclusion must be drawn that either Hoick and Umbrell were not co-conspirators, or that the single conspiracy theory was fundamentally flawed, or that only multiple conspiracies were proven, and since they were not charged, Hoick and Umbrell must be acquitted or at least receive a new trial. The government has consistently denied that it was proceeding under a “hub and spoke” theory and Hoick and Umbrell have not pointed to any Third Circuit case law that would require the Court to proceed down that line of analysis. 4. “Conñict of Interest” Prong As to Hoick and Umbrell’s argument that the evidence was insufficient to prove their guilt under the second prong of the Third Circuit’s honest services fraud jurisprudence, the Court agrees. There is no evidence on the record that Hoick and Umbrell had any knowledge that Kemp had any reporting requirements and that he had to report, to the city or state, any of the favors that he had received from Commerce. There is even some issue as to whether the loans Kemp received were reportable. The jury could infer that Hoick and Um-brell knew that because Kemp favored Commerce, after receiving favors from Commerce, that Kemp had a conflict of interest. The Court finds that such knowledge, in and of itself, although part of the Third Circuit’s jurisprudence of proving the conflict of interest prong, is insufficient to prove that Hoick and Umbrell knew that Kemp was not reporting these favors. The government, in an effort to justify the sufficiency of evidence on a second prong argues that a jury could readily infer such knowledge, first, because of the legal maxim that ignorance of the law is no excuse, but secondly, because Hoick and Umbrell engaged in a grossly inappropriate course of conduct with five different loans, over a period of one year, to three different individuals and a church; and because there was no publicity or inquiry regarding these loans, the jury could have found that Hoick and Umbrell must have known that Kemp had not made any disclosure, or that they had agreed that no disclosure would occur. The Court finds that there is simply no evidence on the record that would warrant such an inference. Although it is true that ignorance of law is no excuse, this concept only applies to someone who has a duty to act, or in this case, to Kemp. Hoick and Umbrell are charged with crimes requiring a mental state of intent. The government had the obligation of proving their knowledge beyond a reasonable doubt, but cannot rely on a vicarious theory of responsibility under the well worn dictum that “ignorance of the law is no excuse” to satisfy its burden that Hoick and Umbrell had knowledge of Kemp’s reporting obligation. Even if there had been some publicity about Kemp’s unreported receipt of these loans, there is no assurance that it would have reached the eyes or ears of Hoick and Umbrell. Because of this conclusion, the Court must consider the impact of United States v. Syme, 276 F.3d 131 (3d Cir.2002), which relied on Griffin v. United States, 502 U.S. 46, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991). Hoick and Umbrell argue that this case requires an acquittal or at least a new trial, because once evidence is insufficient on one of two theories, then the entire conviction must be overturned. The Court disagrees, and finds that the defense argument would only apply if one of the two theories is either unconstitutional or legally invalid. However, when, as here, the government proceeds on two alternative theories in one count, and the only issue is the sufficiency of the evidence, if the evidence is sufficient on one of theories, then Syme holds the verdict should stand. D. Mail Fraud In addition to the conviction on Count 1 charging conspiracy, both Hoick and Umbrell were found guilty on Count 19, aiding and abetting honest services wire fraud arising out of a January 29, 2003 e-mail from Hoick to Commerce CEO Vernon Hill which states “it’s time to move full speed on city accounts,” and notes the meeting with Kemp is scheduled for February 5. Ex. 1058, and Count 21, aiding and abetting honest services wire fraud arising out of a May 28, 2003 telephone call between White and Hoick, Ex. 194. This call concerned the NTI line of credit in which White repeated advice he had given Umbrell that in the second bid, they should not make their bid first, which was an implicit confirmation of an understanding that Kemp would advise Hoick and Umbrell of other bids so that the Commerce bid would be the lowest. The jury could have readily found from the government’s evidence that this was bid-rigging and sufficient to support the convictions of mail fraud. Both of the counts on which Hoick and Umbrell were convicted on are based on evidence sufficient to allow the jury to find that the wire communications were part of the effort of Hoick and Umbrell to corrupt City Treasurer Kemp by providing him with otherwise unavailable loans in exchange for city business. Hoick and Um-brell do not seriously assert insufficiency of the evidence on these mail fraud counts once the evidence is deemed sufficient on the conspiracy count. Nonetheless, an alternative holding in United States v. Dobson, 419 F.3d 231 (3d Cir.2005) supports the conviction. The defendant in Dobson asserted that the evidence was not sufficient to allow a jury to find her guilty of mail fraud, notwithstanding the many misrepresentations, if not outright lies the defendant made to punitive customers at the various trade shows where she was selling franchise arrangements for $5,000 — and the court held that a jury could properly convict her under this evidence. The same holding is true as to Hoick and Umbrell under the facts of this case. II. Denial of Motion for New Trial A. The Fact that Hoick and Umbrell Were Convicted of Conspiracy Is an Additional Reason Why They Are Not Entitled to a New Trial Under Dobson Three issues raised by Hoick and Um-brell are also raised by all defendants who went to trial and found insufficient in the Court’s Memorandum in United States v. Kemp, 379 F.Supp.2d 690, relating to the jury voir dire, selection of trial date, and excuse of juror no. 11. In addition, in the U.S. v. Hawkins Memorandum, the Court denied relief to co-defendant LaVan Hawkins based on the Third Circuit’s recent decision in United States v. Dobson, 419 F.3d 231 (3d Cir.2005). However, because Hoick and Umbrell were convicted of conspiracy, whereas Hawkins was acquitted of conspiracy, the Court discerns an additional reason why Hoick and Umbrell are not entitled to any relief under Dobson. The following discussion assumes familiarity with the decision rejecting a new trial for co-defendant LaVan Hawkins, see Memorandum dated September 28, 2005. On the charge of conspiracy, the Court instructed the jury as follows: The government must prove that a defendant had knowledge of the illegal objective contemplated by the conspiracy.... The defendant knew of the purpose of the conspiracy and deliberately joined in it. (N.T. 4/7/05, p. 24). * * # * * The indictment stated that the object of the conspiracy charged was to ‘to knowingly devise 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, and to obtain money and property by means of false and fraudulent pretenses, representations, and promises, and to use the United States mails and other interstate delivery services and interstate wire communications to further the scheme to defraud.’ (N.T. 4/7/05, p. 26). Thus, in the language of Dobson, the jury was charged on the “overarching scheme” encompassed by the conspiracy count. The Court believes that because the jury’s conviction of Hoick and Umbrell on the charge of conspiracy encompassed a finding that Hoick and Umbrell knew of the overarching scheme, any failure to include such a requirement in the charge on the honest services mail fraud counts would not be plain error. This holding is supported by several opinions of the Third Circuit, most recently in Government of Virgin Islands v. Rosa, 399 F.3d 283 (3d Cir.2005) where the trial court instructed the jury that it could convict the defendant of first-degree murder if it found that he acted with “an intent to kill or inflict serious bodily harm against a human being.” 399 F.3d at 297. The Court held that the latter half of this formulation of first-degree murder was plainly erroneous. However, because the trial court’s other instructions (in particular, its instruction on premeditation) correctly imposed a “specific intent to kill” requirement, the Court concluded that the trial court’s plainly erroneous first-degree murder instruction did not prejudice the defendant. Id. at 296. The Court was convinced by the totality of the instructions that the jury “was cognizant of the fact that the government had the burden to prove that a defendant had the intent to kill if it was to convict him of first-degree murder.” Id. Similarly, in United States v. Klein, 515 F.2d 751 (3d Cir.1975), because the court held that the government had not proven knowledge of an illicit purpose of the underlying scheme for the purposes of a conspiracy charge, it was compelled to reach the same conclusion regarding the substantive mail fraud charge, and reversed Klein’s convictions on both charges. The court reasoned, in support of its conclusion, that the government was required to prove the same knowledge required for the substantive offense of mail fraud as it was required to prove for the conspiracy charge, and thus a failure to prove such knowledge on one charge was fatal to the conviction on both charges: ‘The knowledge of the parties [to the conspiracy] is relevant to the same issues and to the same extent as it may be for the conviction of the substantive offense.’ With respect to the instant conspiracy to commit mail fraud, therefore, the government was required to prove the same knowledge required for the substantive offense, that is knowledge of the scheme to defraud.... Klein, 515 F.2d at 753, n. 3 (emphasis added). See, also, United States v. Curran, 20 F.3d 560 (3d Cir.1994) for a similar holding as in Klein. In the instant case, the Court believes that it correctly charged the jury on the conspiracy count and on the honest services mail fraud count. Even if the Court did not use the precise “culpable participation” language as now required by Dob-son, the Court believes, as held in Hawkins, the overall charge, by virtue of the detailed charge on honest services fraud, buttressed by the correct charge on conspiracy, as to which Hoick and Umbrell were convicted, provides additional distinction from the holding in Dobson. Because Hoick and Umbrell were convicted of conspiracy, the jury made a finding that Hoick and Umbrell had knowledge of and participated in the alleged scheme of corrupting Kemp. This was a finding equivalent to “culpable participation.” B. Additional Jury Charge Issues Hoick and Umbrell complain about the Court’s charge on conspiracy and honest services law. As noted above, the Court maintains that it has appropriately and properly construed Third Circuit case law defining conspiracy and a conspiracy to commit honest services mail or wire fraud, as well as aiding and abetting a substantive offenses of honest services mail fraud. The Court acknowledges that it charged the jury in accordance with this interpretation as set forth in the Court’s earlier opinion of October 29, 2005, 2004 WL 261207. The Court ascertains no point in again reviewing its interpretation. However, at oral argument, counsel for Hoick vigorously argued that the Court’s charge to the jury failed to convey to the jury the essential theory of the government’s case, not only the formal conspiracy claim- as set- forth in the charging paragraph of Count 1, but that further explanation should have been made to the jury that the “manner and means” of carrying out this conspiracy, involved White corrupting Kemp. Counsel are correct that the Court did not delineate this in exact words, but the Court concludes that settled Third Circuit law does not require that the Court’s charge detail the underlying facts which the grand jury asserted in the “manner and means” description of the conspiracy, as part of the jury charge. Instead, Third Circuit law is clear that the judge discharges the duty to charge the jury by relating the elements of the crimes charged in an understandable manner, and the Court believes that it complied with this requirement. However, Hoick and Umbrell fail to point out that the Court did give some specific charges to the jury which noted their contentions and defenses. The first of these was that Hoick and Umbrell contended they should not be convicted for merely making bona fide loans, as that is part of the ordinary course of business of a bank. There was no dispute that the loans were bona fide; one issue was reasonableness. The Court advised the jury of this factual issue. See N.T. 4/7/05 at 45, 46-7. Defendants, Hoick and Umbrell, on the other hand, contend that the loans at issue were commercially reasonable loans made in the ordinary course of business extended by Commerce Bank, a financial institution engaged in the business of banking, including the making of loans. (4/7/05, p. 45) ****** Now, one more word about loans. There has been a lot of evidence in this case about loans. The government alleges that Defendant Kemp and/or his relatives and his church received loans from Commerce Bank that were gifts under the quid pro quo or bribery aspect of honest services fraud. However, the government contends only the loans to Kemp himself were subject to disclosure under the conflict of interest aspect of honest services fraud. The government must prove beyond a reasonable doubt the elements of the crime of honest services fraud as I have defined them. In making this determination, you should consider all of the evidence you consider credible or worthy of belief on this issue. Some of the factors you should consider in making this determination are whether Defendant Hoick and/or Defendant Umbrell followed established Commerce Bank 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 loans and other factors that were the subject of evidence in the case and that you consider material. (4/7/05, pp. 46-47) The Court also charged the jury that, despite much evidence about political contributions and favoritism in awarding city contracts, that such activities alone were not unlawful. The Court also charged the jury that the business relationship between Commerce Bank and Ronald White was lawful. See N.T. 4/12/05 at 252. There has been testimony in this case about consultants, about seeking business, making political and charitable contributions and similar matters. For example, there is no dispute that Commerce Bank hired Ronald White as a consultant and elected him to its board to help it get business. There is nothing illegal about these activities in and of themselves. Also, individuals have a constitutional right to engage in political and charitable activity, including raising money for these activities. The issue in this case is whether the crimes charged, as I have defined them, have been proven. (4/12/05 at 252). Notwithstanding all of the above contentions of Hoick and Umbrell explained to the jury, the Court concludes that Hoick and Umbrell were incorrect that they were entitled to a specific charge that Ronald White was the mastermind of the scheme, or that the government’s theory depended on the jury finding that White had corrupted Kemp. See post-trial argument, 9/16/05 at pp. 24-53. The essence of the charge of conspiracy was a scheme to corrupt Corey Kemp, and charged all of the defendants, including White, Hoick and Umbrell, as participants — and Hoick and Umbrell’s guilt depended on the evidence as to them and the jury’s finding of their involvement, completely independent of Ronald White (who, of course, died before the trial). The Court has reviewed the proposed jury charges of Defendants Hoick and Umbrell (Doc. Nos. 826-827) and does not find any such requests, that the Court charge the jury that it had to find the scheme as described in the “manner and means” of the indictment. The Court has also looked at the “Exceptions to the jury charge as delivered on April 7, 2005 of Defendants Glenn Hoick and Stephen Um-brell,” (Doc. No. 828), and does not find any exception was taken to the charge stating this ground. Furthermore, the transcript of the trial does not show any such exceptions were made verbally. (4/12/05, pp. 264-71). Hoick and Umbrell filed supplemental requests on April 8, 2005, and did not make any such requests at that time. Therefore, the Court finds that this ground for reli