United States of America v. Louis Servon Mister

The Honorable Paul R. Michel, Chief Judge of the United States Court of*
Appeals for the Federal Circuit, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-1353
UNITED STATES OF AMERICA
v.
LOUIS SERVON MISTER,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
District Court No. 1-07-cr-01014-001
District Judge: The Honorable Jerome B. Simandle
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
March 8, 2010
Before: AMBRO, SMITH, and MICHEL, Circuit Judges*
(Filed: March 19, 2010)
OPINION
SMITH, Circuit Judge.
Louis Mister appeals his convictions for aiding and abetting violations of 18
U.S.C. § 1951(a) (extortion under color of official right) and 18 U.S.C. § 666(a)(1)(B)

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(solicitation of a corrupt payment). We will affirm.
Mister was involved in the local politics of Pleasantville, New Jersey. He was
president of a political organization called the Real Democratic Club (“RDC”), a 25-30
member group dedicated to electing public officials in and around Pleasantville. RDC
members devised a plan to win a majority of the seats on the Pleasantville Board of
Education (“PBOE”), and then use those positions to solicit bribes from local businesses
in exchange for PBOE contracts. Mister was not on the PBOE, but was friendly with
several RDC members who were, including Jayson Adams, president of the PBOE; James
Pressly, vice president of the PBOE; James McCormick; Maurice Callaway; and Rafael
Velez. In April 2006, John D’Angelo, a local insurance broker, informed the FBI that
PBOE members had approached him and asked him to pay bribes. The FBI began an
investigation, using D’Angelo and Bruce Begg, the CEO of a local roofing company, as
informants.
Over the next several months, RDC members, including members on the PBOE,
undertook a plan to award PBOE insurance and roofing contracts to D’Angelo and Begg
in exchange for bribes. On June 5, 2006, Mister and Callaway met Begg in Begg’s
vehicle, which was parked in the empty parking lot of a restaurant. The purpose of the
meeting was for Begg to deliver $3,000 in cash to Callaway in exchange for roofing
business. Begg and Mister sat in the front of the vehicle, while Callaway sat in the back.
Callaway was a candidate in an upcoming election for the Pleasantville City Council. He
told Begg that he brought Mister with him because Mister was “a good friend” and

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because “me being the candidate[,] I always bring somebody with me[.]” Begg told
Callaway that he only had $1,500 with him, but promised to deliver the rest of the money
later that day. Mister counted the money from Begg while Begg and Callaway conversed.
Begg mentioned that he’d spoken to PBOE member James Pressly, and would be meeting
with him. Callaway told Begg that he too had spoken to Pressly and that “everything
[was] done and going through the way it’s supposed to be going.”
Begg also mentioned that he had received a call from Arnold Rice, who was in
charge of “maintenance” at the schools, and the “second man in control” behind a man
named Speedy Marsh. Begg said that he had arranged for a meeting with Rice soon.
Callaway told Begg that Rice was involved “in the building thing” and was “the right
guy” for Begg to talk to about it. Then the following exchange occurred:
Begg: So Speedy’s like what? Head of buildings and grounds
or something?
Callaway: Yeah, you got it. Head of facilities.
Begg: Okay. Alright. That’s good. I’ll ah, . . . I’ll get together
with him. [At that point, Begg reached for the $1,500]
Callaway: Yeah, you can give it, give it to him [nodding towards
Mister] . . . . And uhm, if there’s any problems, me and him will
take care of it. Me and the guy you gonna meet with.
Begg: Okay.
Callaway: Try to get you on the right step, and then you know,
you looking at the big stuff, here.
Begg: Right. Right.
Callaway: You know, the schools – the complete schools.
Begg: Right. Right.
Callaway: That’s the way we’ll go.
Begg: Okay.
Later that day, Mister met Begg at a rest stop elsewhere in New Jersey and accepted the
other $1,500 cash payment on behalf of Callaway.

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On August 6, 2006, James McCormick was appointed to the PBOE. This gave the
RDC a majority of the seats on the Board. On August 23, 2006, Adams, Mister, and
D’Angelo met. Adams introduced Mister to D’Angelo as “the cat that’s makin’ this
meeting happen.” Referring to Mister, D’Angelo asked Adams, “[C]an I talk in front of
him?” Adams responded in the affirmative. Eventually, the conversation turned to
Mister and Adams’s aspirations to capture the Pleasantville City Council in the same way
they had captured the PBOE. The following exchange occurred between Adams and
Mister:
Mister [to D’Angelo]: With this, you need to just kick butt
over there in the political arena and grab some seats.
Adams: Just need to maintain control of that school board
that’s all.
Mister: Need to take hold of Pleasantville. Then you take
control of Pleasantville, uh, council and uh, then we go after
the contracts.
D’Angelo then suggested that Adams and Mister meet with Begg to talk about politics
and fund-raising. Adams and Mister agreed. Mister responded:
We’ll do that we um, because um, once we, once we get um,
Pleasantville, we get two more seats in Pleasantville on that
council ’cause we got Pete and we got Linc. We get four, we
lock that council up then we lock them contracts up too . . . .
That’s the goal.
On September 12, 2006, the PBOE voted to award D’Angelo’s company the contract for
insurance brokerage services for the school district.
FBI agents arrested Mister, Adams, Callaway, and eight others on September 6,
2007. When he was first interviewed, Mister denied meeting with Begg and Callaway in

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the parking lot on June 5, 2006. After he was told that videotape existed of the meeting,
however, Mister changed his story. He admitted that he was at the meeting, but said that
Callaway had misled him about the nature of the payment. According to Mister,
Callaway had told him that the payment was a contribution to Callaway’s campaign for
city council. Mister had agreed to accompany Callaway to the meeting because Callaway
had told him that, as a candidate, he could not “touch the money.”
A four-count superseding indictment was returned against Mister on March 12,
2008. Count I charged that Mister conspired with Callaway to obstruct interstate
commerce by extortion under color of official right, in violation of 18 U.S.C. § 1951(a).
Count II charged that Mister aided and abetted Callaway’s attempts to obstruct interstate
commerce by extortion under color of official right, in violation of 18 U.S.C. § 1951(a)
and 18 U.S.C. § 2. Count III charged Mister with aiding and abetting Callaway’s
solicitation of a corrupt payment, in violation of 18 U.S.C. § 666(a)(1)(B) and 18 U.S.C.
§ 2. Count IV charged that Mister aided and abetted an attempted extortion under color
of official right, by obtaining money on behalf of James McCormick, in exchange for
McCormick’s agreement to steer the PBOE insurance brokerage contract to D’Angelo.
See 18 U.S.C. § 1951(a); 18 U.S.C. § 2.
A jury convicted Mister on Counts II and III but acquitted him on the others.
Mister moved for a new trial pursuant to Rule 33, or a judgment of acquittal under Rule
29. The District Court denied both motions, and sentenced Mister to one year and one
day of imprisonment and three years of supervised release. Mister filed a timely notice of

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appeal. We have jurisdiction under 28 U.S.C. § 1291.
Mister raises three issues in this appeal. First, he argues that there was insufficient
evidence to sustain his convictions on Counts II and III. Second, he claims that the
government constructively amended his indictment at trial, in violation of the Fifth
Amendment. Third, he argues that prosecutors violated his due process rights by
improperly arguing “guilt by association” during closing arguments. We reject each of
these claims.
I.
“Our review of the sufficiency of the evidence is governed by strict principles of
deference to a jury’s findings.” United States v. Anderskow, 88 F.3d 245, 251 (3d Cir.
1996) (internal quotations omitted). If the jury’s verdict was supported by substantial
evidence, we must uphold it. Burks v. United States, 437 U.S. 1, 17 (1978). The
substantial evidence inquiry requires us to decide whether “any rational trier of fact”
could have found Mister guilty beyond a reasonable doubt. See Jackson v. Virginia, 443
U.S. 307, 319 (1979) (emphasis in original). In deciding this question, we view the
evidence in the light most favorable to the government, Burks, 437 U.S. at 17, and draw
all reasonable inferences in the government’s favor. Anderskow, 88 F.3d at 251.
Mister argues that there was insufficient evidence to conclude that he knowingly
and willfully accepted money from Begg for the purpose of aiding and abetting extortion,
or aiding and abetting Callaway’s solicitation of a corrupt payment. He points to
Callaway’s testimony that Callaway never told him that the money was for a bribe. In

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fact, according to Mister, Callaway affirmatively misled him by telling him that the
money was to pay campaign workers for a primary election the following day. Mister
points out that there was no mention of contracts or roofing during the conversation
between Begg and Callaway, and claims in any event that he was distracted during their
conversation because he was busy counting the money. He also points to trial evidence
indicating that he functions at a low-to-average intelligence level as further proof that he
did not and could not have understood that the payment he accepted was in exchange for
Callaway’s promise to steer PBOE roofing contracts to Begg.
We conclude that there was sufficient evidence to support the jury’s verdict.
Mister was present during the entire conversation between Begg and Callaway. During
that conversation, Begg told Callaway that he had spoken to James Pressly, a school
board member. Callaway assured Begg that he too had spoken with Pressly and that
“everything [was] done and going through the way it’s supposed to be going.” Callaway
also told Begg that Arnold Rice, a supervisor within the school’s maintenance
department, was involved in “the building thing” and that Rice was “the right guy” for
Begg to talk to about it. Presumably, these maintenance employees would have been
relevant to the procurement of the school’s roofing business. After Begg handed
Callaway the $1,500, Callaway told him he was on “the right step” and that Begg was
“looking at the big stuff here . . . the schools – the complete schools.” Also, and
significantly, Mister initially denied meeting with Callaway and Begg in the parking lot,
and only recanted when confronted with videotape evidence to the contrary. The jury

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could have treated this false exculpatory statement as evidence of Mister’s consciousness
of guilt. See United States v. Kemp, 500 F.3d 257, 296 (3d Cir. 2007) (“It is well-settled
that untrue exculpatory statements may be considered as circumstantial evidence of the
defendant's consciousness of guilt,” quoting United States v. Rajewski, 526 F.2d 149, 158
(7th Cir. 1975)). Under these facts, we cannot say that no rational jury could have
convicted Mister. A rational jury could have concluded that he knew that the payments
were a bribe from Begg to Callaway in exchange for business from the PBOE.
II.
The Fifth Amendment provides in relevant part that “[n]o person shall be held to
answer for a capital[] or otherwise infamous crime, unless on a presentment or indictment
of a Grand Jury[.]” U.S. Const. amend V. Accordingly, a defendant may be tried and
convicted only on those charges contained in the indictment returned by a grand jury.
Stirone v. United States, 361 U.S. 212, 217 (1960). “An indictment is constructively
amended when, in the absence of a formal amendment, the evidence and jury instructions
at trial modify essential terms of the charged offense in such a way that there is a
substantial likelihood that the jury may have convicted the defendant for an offense
differing from the offense the indictment returned by the grand jury actually charged.”
United States v. Daraio, 445 F.3d 253, 259-60 (3d Cir. 2006). Mister argues that his
indictment was constructively amended, in that the indictment charged Mister with aiding
and abetting a scheme to exchange money for influence on the PBOE, while prosecutors
attempted to prove at trial that Mister aided in the exchange of money for future favors

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The government argues that the inconsistency between the indictment and the1
trial evidence alleged by Mister amounted to a variance, not a constructive amendment.
Because it does not affect our disposition of the case, we need not decide who is right.
We assume without deciding that the error Mister alleges, if proven, would constitute a
constructive amendment.
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from Callaway on the Pleasantville City Council. Because Mister did not raise this claim
at trial, we review for plain error. United States v. Olano, 507 U.S. 725, 731-32 (1984).
The indictment was narrowly drawn, and specifically accused Mister of aiding a
scheme to exchange money for favors from the PBOE. In light of this specificity, we1
agree that it would have been improper for the government to encourage the jury to
convict Mister for participating in a scheme to trade money for official action from
Callaway as a member of the city council. We do not think, however, that the
government did so. During closing, the government twice cited Mister’s statement to
Adams that the RDC needed to “take a hold of Pleasantville. Then [we] take control of
Pleasantville . . . council and . . . then we go after the contracts.” We conclude that the
government’s references to this statement did not constructively amend the indictment,
for reasons ably explained by the District Court:
Defendant’s first reference to “Pleasantville” . . . appears to be a reference
to the Pleasantville PBOE itself, the school board. The second reference,
“Then you take control of Pleasantville . . . council,” refers to the council of
Pleasantville. The word “then” clearly indicates both to the Court and to a jury
that Defendant was talking about corrupting two distinct entities: first corrupt
the school board, then corrupt the council. Defendant also went on to talk
about efforts to unseat the Mayor. Thus, this evidence shows that in
Defendant’s mind, the effort to corrupt the PBOE was part of a larger scheme
to corrupt the whole town, which he described after saying that the parties
needed to take hold of the Pleasantville PBOE. It was not error for the
Government to refer to this evidence. Although not the subject of this

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The District Court instructed the jury:2
Count Two alleges that on or about June 5, 2006, defendant Louis Mister aided
and abetted an attempt to obstruct interstate commerce by extortion by
obtaining money on behalf of Maurice Callaway, that was paid by another,
with that person’s consent, in exchange for Callaway’s official action and
influence as specific opportunities arose in Callaway’s capacity as a member
of the PBOE.
(A. 1227, emphasis added). The Court’s charge for Count Three was even more
emphatic: “To sum up, to find the defendant guilty of the crime charged in Count Three,
you must find . . . that the defendant knowingly and willfully aided Maurice Callaway in
knowingly, willfully and corruptly . . . accepting, or agreeing to accept a thing of value;
[and] that Maurice Callaway intended to be influenced with regard to the affairs of the
Pleasantville Board of Education[.]” (A. 1243, emphasis added).
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post-trial motion practice, Count Four charged Defendant with attempting to
“take hold of” the PBOE by helping to find a new member of the school board,
James McCormick, who would vote for corrupt contracts. Thus, this evidence
of Defendant speaking about Pleasantville and PBOE corruption was
admissible to show that Defendant was aware of and intentionally participated
in the scheme to take hold of the Pleasantville PBOE by appointing a new
corrupt member.
(A. 26-27, emphasis added, some alterations in original.) We think it highly unlikely that
Mister’s statement about the need to “take hold of Pleasantville,” which was properly
admitted for the reasons identified by the District Court, caused the jury to convict Mister
for any crimes other than those charged. The District Court clearly instructed the jury that
the corruption at issue in Counts Two and Three was corruption of the PBOE. In2
general, we presume that the jury follows its instructions, United States v. Syme, 276 F.3d
131, 155 (3d Cir. 2002), and we see no reason to abandon that presumption here. See
also Daraio, 445 F.3d at 260 (concluding that although the government presented
extensive evidence of defendant’s uncharged wrongdoing, “the district court’s

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instructions ensured that the jury would convict [the defendant], if at all, for a crime
based on conduct charged in the indictment”).
In sum, we find no “substantial likelihood” that the jury convicted Mister on a
corruption-of-city-council theory, as opposed to a corruption-of-PBOE theory. See
Daraio, 445 F.3d at 260. Thus, we find no error, let alone error that was “plain.” Olano,
507 U.S. at 732. We will deny Mister’s request for a new trial on this basis.
III.
Finally, Mister claims that he was denied due process because the government
encouraged the jury to convict him based on his association with criminals. He argues
that the government’s closing argument improperly relied upon his friendship with
corrupt Pleasantville politicians such as Adams and Callaway, and overemphasized the
fact that both of those men had admitted to accepting bribes. In the same vein, Mister
also objects to the prosecutor’s statement that “swans don’t swim in cesspools” in
reference to Mister and the corruption that occurred in Pleasantville in 2006.
Because Mister did not raise his guilt-by-association claim in the District Court,
we again review for plain error. Olano, 507 U.S. at 731-32 (1984). “We may reverse
only if we find error in the prosecutor’s comments so serious as to undermine the
fundamental fairness of the trial and contribute to a miscarriage of justice.” United States
v. Walker, 155 F.3d 180, 188 (3d Cir. 1998). After carefully reviewing the government’s
arguments, we conclude that this high standard is not met here. We find no insinuations
of guilt by association that would have undermined the fundamental fairness of Mister’s

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trial. Even if the prosecutor’s references to Mister’s association with Callaway, Adams,
and McCormick created some risk of prejudice, the District Court unambiguously
instructed the jury as follows:
[Y]ou must not consider the fact of a witness’[s] guilty plea as any evidence
of Louis Mister’s guilt. Their decisions to plead guilty were personal decisions
about their own guilt. Such evidence is offered only to allow you to assess the
credibility of the witness; to eliminate any concern that the Defendant has been
singled out for prosecution; and to explain how the witness came to possess
detailed firsthand knowledge of the events about which he testified. You may
consider a witness’[s] guilty plea only for these purposes.
(A. 941-42.) “These instructions sufficed to cure any possibility of prejudice.” Zafiro v.
United States, 506 U.S. 534, 541 (1993). See also id. at 540-41 (noting the presumption
that jurors follow their instructions). Nor do we find the statement “swans don’t swim in
cesspools” to be so fundamentally unfair and prejudicial as to contribute to a miscarriage
of justice. Cf. United States v. Adams, 799 F.2d 665, 670 (11th Cir. 1986) (rejecting
claim that defendant was denied a fair trial by the prosecutor’s statement that “you don’t
find a swan in the sewer,” in reference to the credibility of government witnesses).
IV.
We will affirm the judgment of conviction.

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