United States of America v. LAWRENCE W. WRIGHT Lawrence Wright

PRECEDENTIAL
UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT
No. 03-1800
____________
UNITED STATES OF AMERICA
v.
LAWRENCE W. WRIGHT
Lawrence Wright,
Appellant
____________________
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
District Court Judge: Honorable
Gregory M. Sleet
(D.C. No. 01-cr-63)
Submitted Under Third Circuit LAR
34.1(a)
January 22, 2004
Before: ALITO and CHERTOFF,
Circuit Judges, and DEBEVOISE,*
District Judge
(Opinion Filed: April 6, 2004)
JENNIFER-KATE AARONSON
Potter, Carmine & Hodas
840 North Union Street
P.O. Box 514
Wilmington, DE 19899
Counsel for Appellant
RICHARD G. ANDREWS
Office of the United States Attorney
1007 Orange Street
Suite 700
Wilmington, DE 19801
Counsel for Appellee
_________________
OPINION OF THE COURT
____________________
ALITO, Circuit Judge:
This is an appeal from a final
judgment in a criminal case. Lawrence W.
Wright was convicted and sentenced for
conspiring to transport stolen property in
interstate commerce, transporting stolen
property in interstate commerce, money
laundering, and making false statements
in a matter within the jurisdiction of the
federal government. All of these offenses
related to a scheme to steal money from
the Church that the defendant served as
pastor. We affirm.
I.
Lawrence W. Wright was the pastor
of the New Mt. Olive Baptist Church (“the
Church”) in Wilmington, Delaware. The
Church maintained multiple bank
accounts. One of these, the “General
*The Honorable Dickinson R.
Debevoise, District Judge of the United
States District Court for the District of
New Jersey, sitting by designation.

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Account,” was controlled and reviewed by
Church officials, but another, called the
“Fire Account,” was under the defendant’s
sole control. The intended purpose of the
“Fire Account” was to help the needy.
Al O. Plant, Sr., (“Plant”) was an
elected member of the Delaware House of
Representatives. Under a Delaware
Department of Transportation program
that was popularly called the Suburban
Street Funds (“SSF”) program, each
elected state representative was allocated
a share of money to spend on
transportation-related projects in the
representative’s district. Plant had control
over the funds for the City of Wilmington.
Plant ceded control of his SSF funds to the
City, and in return, the City created an
account with an equivalent amount of
money that would be spent on non-profit
human services projects as Plant
requested. For purposes of simplicity, we
will refer to the latter funds as Plant’s SSF
funds.
According to the government, Plant
made SSF moneys available to the
defendant, and the defendant used these
funds for his own personal use and for
bribes for Plant. In May 1999, Wright
wrote to Plant requesting $50,000 for a
“bus being used for seniors’ transportation
to the doctor, clinic, hospital, and trips
during the day.” Plant then contacted the
City of Wilmington and requested that it
write a check for $49,449 from his SSF to
Wright. The City drew a check for
$49,449 payable to Wright on an account
at the Wilmington Trust Company in
Wilmington. The defendant immediately
deposited the check into the Fire Account
at the Sun National Bank. After the check
was deposited, it was sent to a third-party
processor, then to First Union Bank, and
then across state lines to the Federal
R e s e r v e B a n k i n P h i l a d e l p h i a ,
Pennsylvania, from which it was returned
to Wilmington Trust Co.
After these funds were deposited in
the Fire Account, the defendant began to
disburse them for purposes having nothing
to do with transportation or assisting the
needy. He caused $8,500 to be transferred
into his personal account, and he caused
$8,500 to be transferred into Plant’s
personal account. In early August, the
defendant wrote himself a check for
$8,000 on the Fire Account and deposited
the check in his personal account. Later in
the month, he arranged for transfers of
$8,000 and $3,500 from the Fire Account
into Plant’s personal account.
In May or June of 1999, Plant
enticed Delaware State Representative
Helen Keeley to make $50,000 of her SSF
money available to him. In October 1999,
the defendant wrote to Plant and requested
$35,000 to “completely construct a new
sidewalk” in front of the Church. A short
time later, Keely, at Plant’s request, signed
a letter authorizing the transfer of $50,000
from her SSF to the Church. When the
defendant received the check, he deposited
it in the Fire Account, and this check, like
the previous check drawn on the
Wilmington Trust Co., was cleared
through the Federal Reserve Bank in

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Philadelphia.
Although the money from
Representative Keeley’s SSF funds was
supposed to be used to construct a
sidewalk, no repair or reconstruction of the
sidewalk was ever done. Instead, money
from the Fire Account was again diverted
to the defendant and Plant. In November
1999, the defendant drew an $8,000 check
on the Fire Account payable to Plant, and
he arranged for the transfer of another
$8,000 from that account to Plant’s
account. During the month of November,
the defendant wrote himself approximately
$21,000 in checks on the Fire Account. In
December 1999, he wrote a check for
$1,500 from the Fire Account to a body
shop to pay for repairs to his Mercedes.
In July 2000, Plant took action in
response to a request from the defendant
for money to repair a house so that it could
be used as an outreach ministry. Plant
authorized $50,000 to be paid from his
SSF to the Church. Once again a check
was drawn on the Wilmington Trust Co.,
the defendant deposited the check in the
Fire Account, and the check was cleared
through the Federal Reserve Bank in
Philadelphia. After this money was
deposited in the Fire Account, the
defendant transferred funds from that
account to himself and to Plant. He wrote
Plant a check for $5,600, and on several
occasions he wrote checks to himself,
deposited the checks in his personal
account, and then used that account to
write checks for Plant in the same amount
as the checks that he had originally written
to himself. In addition, during a period of
approximately five weeks after the deposit
of the money in the Fire Account, the
defendant wrote other checks on that
account for himself and family members
totaling $22,100.
In September 2000, the defendant
was interviewed by two FBI agents.
During one interview, he said that the
Church had received only $99,449 of SSF,
as opposed to the $149,449 that had
actually been received. He also told the
FBI agents that the Church had used the
part of the proceeds from the first
Wilmington Trust Co. check (for $49,449)
to make a down payment on a new bus and
that the rest had been used for incidental
Church expenses or a reserve account. He
claimed that the remaining $50,000 had
been used to repair the Church, to
refurbish an old bus, and to initiate a
senior citizen’s program. The next day,
the defendant was again interviewed by
two agents and said that the Church had
used the $49,499 check for its reserve
account and for day-to-day Church
expenses and that the Church had used the
$50,000 check to buy computers, to
overhaul the bus, and to defray various
other Church costs.
On March 25, 2001, a grand jury
returned a 19-count indictment against the
defendant, charging him with one count of
conspiring to transport stolen property in
interstate commerce, in violation of 18
U.S.C. §371; three counts of causing the
transportation of stolen property in
interstate commerce (one count for each of

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the three checks for SSF funds), in
violation of 18 U.S.C. §§ 2314 and §2(b);
four counts of money laundering, in
violation of 18 U.S.C. §1956(a)(1)(B)(I);
nine counts of bribery, in violation of 18
U.S.C. §666; and two counts of making
false statements to the FBI, in violation of
18 U.S.C. §1001.
The defendant moved to dismiss the
counts of the indictment that involved the
transportation of stolen goods in interstate
commerce. He argued that those counts
were defective because they did not allege
that he knew that the stolen property
would travel in interstate commerce. See
United States v. Wright, 194 F.Supp.2d
287, 291 (D. Del. 2002). He also urged
the District Court to dismiss the bribery
counts on the ground that they did not
implicate any federal interest. Id. at 296.
The District Court denied the
motion to dismiss. The Court ruled that
the interstate element of 18 U.S.C. §2314
is purely jurisdictional and that therefore it
was not necessary for the defendant to
have known that the property was going to
travel in interstate commerce. Id. at 290-
95. The Court also held that it could not
conclude at that juncture that a sufficient
federal interest was not implicated, but it
invited counsel to raise the issue again
after trial. Id. at 295-301.
The defendant was then tried before
a jury. During the trial, the defendant
claimed that he had stolen money from the
Church to repay cash loans from Plant,
who had loaned the defendant money to
help him pay his gambling debts. The
defense argued that while this theft was
wrong, it was not a federal crime. The
jury found the defendant guilty on all
counts.
The defendant filed a post-trial
motion for judgment of acquittal in which
he renewed the arguments that he had
made in his earlier motion to dismiss. The
District Court granted the motion with
respect to bribery counts1 but refused to
dismiss the other counts.
The District Court sentenced the
defendant to 51 months of imprisonment.
In doing so, the District Court rejected the
defendant’s request for a downward
departure based on his charitable work.
The defendant then took this appeal.
II.
A.
The defendant first argues that the
evidence at trial was insufficient to prove
that he willfully caused another person to
violate 18 U.S.C. §2314 (transportation of
stolen items in interstate or foreign
commerce). The defendant contends that
a person cannot willfully cause property to
be transported in interstate commerce
1Neither the propriety of the District
Court’s partial inquiry into the facts
relating to this issue prior to the trial nor
its ultimate decision on this issue is
before us in this appeal.

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without knowing that the property will be
transported in interstate commerce, and he
maintains that the evidence does not show
that he had such knowledge. We reject
this argument because the defendant’s
interpretation of 18 U.S.C. §2314 and 18
U.S.C. § 2(b) is incorrect.
1.
It is clear that a defendant who
personally transports stolen property in
interstate commerce may be convicted of
violating 18 U.S.C. § 2314 without proof
that the defendant knew that the
transportation was in interstate commerce.
Section 2314 provides in relevant part:
W h o e v e r t r a n s p o r t s ,
transmits, or transfers in
i n te r s t a t e o r f o r e i g n
commerce any goods, wares,
merchandise, securities or
money, of the value of
$5,000 or more knowing the
same to have been stolen,
converted or taken by fraud
. . .
Shall be fined under this
title or imprisoned not more
than ten years, or both.
18 U.S.C. § 2314 (emphasis added).
This language does not require
proof that the accused knew that the
transportation of the stolen property was
“in interstate or foreign commerce.”
Rather, the only requisite knowledge is
knowledge that the property was “stolen,
converted or taken by fraud.” Thus, the
text of § 2314 is alone sufficient to show
that knowledge of the interstate commerce
element is not necessary.
Moreover, even if the statutory text
were less clear, there would be strong
reasons to doubt that Congress intended to
require such proof. For one thing, very
few lay people understand the breadth of
the terms “in interstate or foreign
commerce,” and therefore except in the
most obvious cases – i.e., where the
property actually crosses state lines or an
international border – proof of such
knowledge would be very hard. It is
unlikely that Congress intended to create
such an obstacle.
More important, there is no
apparent reason why Congress would have
wanted to demand proof of such a state of
mind. Such proof is certainly not
constitutionally required. Proof of
interstate or foreign transport is required to
ensure that prosecutions under 18 U.S.C. §
2314 reach only conduct that Congress
may properly regula te und er the
Commerce Clause, the constitutional
provision under which § 2314 was
enacted, but the Commerce Clause
empowers Congress to regulate interstate
and foreign commerce regardless of
whether the persons engaging in that
conduct realize that it falls within the
scope of the Clause.
There is also no apparent policy
reason for requiring proof that a person
charged under § 2314 knew that the

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property was transported in interstate or
foreign commerce. The presence or
absence of such knowledge seems to have
little relation to either the blameworthiness
of the conduct or the harm that it produces.
Finally, case law strongly supports
the conclusion that § 2314 does not
necessitate proof that the defendant knew
that the interstate element was present.
Numerous courts of appeals have held that
the portion of § 2314 at issue here does not
require proof that a defendant knew that
the transportation was in interstate
commerce or even that transportation in
interstate commerce was reasonably
foreseeable. See United States v. Lack,
129 F.3d 403, 410 (7th Cir. 1997); United
States v. Scarborough, 813 F.2d 1244,
1245-46 (D.C.Cir.1987); United States v.
Lennon, 751 F.2d 737, 741 (5th Cir.1985);
United States v. Newson, 531 F.2d 979,
981 (10th Cir. 1976); United States v.
Ludwig, 523 F.2d 705, 706-08 (8th
Cir.1975); United States v. Powers, 437
F.2d 1160, 1161 (9th Cir.1971); United
States v. White, 451 F.2d 559, 559-60 (6th
Cir.1971); United States v. Mingoia, 424
F.2d 710,713(2d Cir. 1970). Cf. United
States v. McElroy , 644 F.2d 274, 277 (3d
Cir. 1981)(stating that “[m]ost opinions
hold that the interstate commerce
requirement is satisfied if, after the
defendant negotiates a forged check, it
travels interstate in the bank collection
process”). For all of these reasons, we
hold that 18 U.S.C. §2314 itself does not
require that the accused know or intend for
the stolen property to be transported across
states lines.
2.
The defendant argues, however,
that knowledge of transportation in
interstate commerce is nevertheless
demanded when a defendant is charged
under 18 U.S.C §2(b) with causing another
person to violate 18 U.S.C. §2314. The
defendant first notes that a person is guilty
as a principal if the person “willfully
causes an act to be done which if directly
performed by him or another would be an
offense against the United States.” 18
U.S.C. § 2(b)(emphasis added). In the
present case, the defendant contends, the
“act” in question is the transportation of
stolen goods in interstate commerce, and
he argues that a person cannot “willfully”
cause a person to transport goods in
interstate commerce without knowing that
the goods will travel in interstate
commerce. This argument is also wrong.
First, the language of 18 U.S.C.
§2(b) does not require the conclusion that
the defendant reaches. Suppose, for
example, that a defendant willfully causes
another person to take stolen goods from
point A to point B without realizing that
these points are in different states. In that
situation, the defendant may be viewed as
having willfully caused another person to
perform an act (transporting the goods
between points A and B) “which if directly
performed by [the defendant] would be an
offense against the United States.” See
United States v. Feola, 420 U.S. 671, 687
(1975). The defendant’s lack of
knowledge that points A and B are in
different states would not alter this

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conclusion.
Second, since a defendant who is
charged with personally transporting stolen
property in interstate commerce need not
know that the transportation is in interstate
commerce, it is difficult to see why
Congress would have wanted to require
such knowledge in a case in which a
defendant is accused of causing another
person to commit the same offense.
Third, precedent strongly supports
this reading. Although our Court has not
decided the precise issue presented here, in
United States v. Gumbs, 283 F.3d 128, 131
(3d Cir. 2002), we addressed a very similar
question. In Gumbs, the defendant was
convicted of causing a false claim to be
made or presented to a federal department
in violation of 18 U.S.C. § 2(b) and § 287.
The de f e n d a n t a rg u e d that th e
“willfulness” element in 18 U.S.C. § 2(b)
meant that he could not be convicted
without proof that he knew that the claim
would be presented to a federal
department, but we disagreed. We noted
that “the Supreme Court has held that a
defendant generally need not be aware of
the existence of a jurisdictional element to
be guilty of a federal offense.” Id. at 131
(citing United States v. Feola, 420 U.S. at
672-73, and United States v. Yermian, 468
U.S. 63, 75 (1984)).2 Although Gumbs did
not concern 18 U.S.C. § 2314, its
reasoning seems fully applicable in the
present situation.
Looking beyond the decisions of
our own Court, we see that no fewer than
six other courts of appeals have rejected
the precise argument that the defendant
now advances. See Lack, 129 F.3d at 409-
10; Scarborough, 813 F.2d at 1245-46;
Lennon, 751 F.2d at 741; Newson, 531
F.2d at 980-81; Ludwig, 523 F.2d at 706-
08; Powers, 437 F.2d at 1161.
We are aware that the First Circuit
has suggested in dicta that the requirement
of willfulness in 18 U.S.C. § 2(b) might
2In Feola, the defendant was
convicted of violating 18 U.S.C. §371,
by conspiring to assault a federal officer,
in violation of 18 U.S.C. §111. After
first holding that a defendant may violate
18 U.S.C. § 111 without knowing that
the victim of the assault is a federal
officer, 420 U.S. at 676-86, the Court
went on to reject the proposition that, in
order to be guilty of conspiring to violate
18 U.S.C. § 111, a conspirator must
know that the intended victim was a
federal officer. Id. at 686-96.
In Yermian, the defendant was
convicted under 18 U.S.C. § 1001, which
makes it a crime to “knowingly and
willfully” make false, fictitious, or
fraudulent statements in a matter within
the jurisdiction of a federal department
or agency. The Court rejected the
argument that conviction under this
statute necessitates proof that the
defendant knew that the statements were
made in a matter within the jurisdiction
of a federal department or agency.

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demand proof that a defendant charged
under 18 U.S.C. § 2314 either knew or
should have reasonably foreseen that the
property would be transported in interstate
commerce. United States v. Leppo, 177
F.3d 93, 96-97 (1st Cir. 1999). However,
the Leppo court did not actually decide
whether such proof was needed because it
found that the record was sufficient to
show that the defendant intended for the
property to pass in interstate commerce.
Id. at 97. Furthermore, we believe that
the Leppo court read too much into the
passage from Pereira v. United States, 347
U.S. 1 (1954), on which its dicta was
based.
In Pereira, a defendant, Pereira, was
convicted of causing a check procured by
fraud to be transported in interstate
commerce, in violation of 18 U.S.C. §§
2341 and 2(b). See 347 U.S. at 4, 8. The
evidence showed that Pereira fraudulently
obtained a check drawn on a California
bank and then presented the check to a
bank in Texas. Holding that the evidence
was sufficient to support conviction under
18 U.S.C. §§ 2314 and 2(b), the Supreme
Court stated that the following elements
had to be proven:
(1) knowledge that certain
property has been stolen or
obtained by fraud, and (2)
transporting it, or causing it
to be tr ansported in
interstate commerce.
It is noteworthy that the Court did not list
knowledge that the property would be
transported in interstate commerce as one
of the elements of the offense.
Turning to the question whether
the evidence was sufficient to establish
that Pereira caused the check to pass in
interstate commerce, the Court wrote:
When Pereira delivered the
check, drawn on an out-of-
state bank, to the El Paso
bank, for collection, he
“caused” it to be transported
in interstate commerce. It is
common knowledge that
such checks must be sent to
the drawee bank for
collection, and it follows
that Pereira intended the El
Paso bank to send this check
across state lines.
Id.
Although this passage notes that
Pereira intended for the fraudulently
obtained check to cross state lines, we do
not interpret the Court’s opinion to mean
that such knowledge was needed for
conviction. The Court certainly did not
state that such knowledge was required; on
the contrary, as previously noted, the
Court’s enumeration of the elements of the
offense made no mention of such
knowledge. Moreover, Pereira did not
argue that such knowledge was required,
and the question that the Court was
addressing in the passage quoted above
was simply whether there was sufficient
evidence that the defendant caused the
check to travel in interstate commerce.

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Therefore, we must respectfully disagree
with Leppo to the extent that it suggests
that Pereira supports the conclusion that
such proof is required.
For all these reasons, we hold that
the prosecution in this case was not
required to prove that the defendant knew
that the stolen property would be
transported in interstate commerce.
B.
In a related argument, the defendant
contends that the District Court erred when
it denied his motion to dismiss the counts
of the indictment charging violations of 18
U.S.C. §§ 2314 and 2(b). The defendant
maintains that those counts were deficient
because they did not allege that he knew
that the stolen goods would be transported
in interstate commerce. As discussed
above, however, such knowledge is not a
necessary element of the crime.
Furthermore, even if th e
“willful[ness]” required by 18 U.S.C. §
2(b) did demand proof that the defendant
knew that the stolen property would be
transported in interstate commerce, we
have already held that “‘[w]illfulness’
need not be expressly stated in [an]
indictment charging a violation of 18
U.S.C. §2.” United States v. Krogstad,
576 F.2d 22, 29 (3d Cir. 1978).
III.
The defendant next argues that the
District Court erred in refusing to admit
testimony concerning Plant’s statements to
his lawyer and testimony concerning
Plant’s good moral character.
A.
The defendant claims that, under
Federal Rule of Evidence 807, the District
Court should have admitted testimony by
Plant’s attorney, Kathleen Jennings,
regarding statements that Plant made to her
before his death. According to the defense
proffer, Jennings would have testified that
Plant had told her that he carried large
sums of cash to make loans to friends.
The defendant claims that the context in
which Plant made these statements --
confidential communications with his
attorney -- provided strong indicia of
trustworthiness.
Under the Federal Rules of
Evidence, hearsay is not admissible unless
it falls under one of the enumerated
exceptions. See Fed. R. Evid. 802. In
addition to providing numerous specific
exceptions, see Fed. R. Evid. 803, 804, the
Federal Rules of Evidence contain a
“residual exception” for certain other
trustworthy hearsay statements. Fed. R.
Evid. 807. This provision states in
relevant part:
A statement not specifically
covered by Rule 803 or 804
but having equivalent
circumstantial guarantees of
trustworthiness, is not
excluded by the hearsay

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rule, if the court determines
that (A) the statement is
offered as evidence of a
material fact; (B) the
statement is more probative
on the point for which it is
offered than any other
e v i d e n c e w h i c h t h e
proponent can procure
through reasonable efforts;
and (C) the general purposes
of these rules and the
interests of justice will best
be served by admission of
the statement into evidence.
Fed. R. Evid. 807.
Rule 807 is “to be used only rarely,
and in exceptional circumstances” and
“appl[ies] only when certain exceptional
guarantees of trustworthiness exist and
when high degrees of probativeness and
necessity are present.” United States v.
Bailey, 581 F.2d 341, 347 (3d Cir. 1978).
See also Bohler-Uddeholm America, Inc.
v. Ellwood Group, Inc., 247 F.3d 79, 112
(3d Cir. 2001)(“Rule 807 should only be
used in rare situations.”)
Here, the District Court found that
Plant’s statements to his criminal defense
attorney lacked the guarantees of
trustworthiness that Rule 807 demands.
The District Court reasoned as follows:
While it is true that Plant’s
conf idential relationship
with his attorney is one
indication that Plant’s
s t a t e m e n t s w o u l d b e
truthful, other circumstances
of Plant’s conversation with
J e n n i n g s p r o v i d e
insufficient circumstantial
g u a r a n t e e s o f
trustworthiness. Plant’s
statements to his attorney
were not under oath, and
there was no penalty for him
lying to his attorney.
A d d i t i o n a l l y , t h e
circumstances surrounding
Plant’s meetings with his
a t t o r n e y c o n t a i n e d
incentives for him to lie.
Plant’s statements were
self-serving statements
made at a time when he
k n e w h e w a s u n d e r
investigation and had a
motive to not tell the truth.
Human nature is to deny
c o m m i t t i n g c r i m e s ,
especially for a public figure
who is held in high esteem
by the community and
k n o w s h e i s u n d e r
investigation. In light of
these considerations, the
court concludes that the
hearsay statements at issue
are not sufficiently reliable
to merit admission under the
residual hearsay exception.
Wright, 206 F.Supp.2d at 617.
A trial judge’s finding on the
question whether hearsay possesses the

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guarantees of trustworthiness required by
Rule 807 is reviewed for clear error,
Copperweld Steel Co. v. Demag
Mannersmann Bohler, 578 F.2d 953, 964
(3d Cir. 1978), and we see no clear error
here. Although it is not in the best
interests of persons implicated in criminal
investigations to lie to their attorneys, the
trial judge noted that it is not unusual for
them to do so. Moreover, as the trial
judge observed, a public official whose
career is dependent on maintaining a
reputation for integrity may find it
particularly difficult to admit criminal
wrongdoing, even in a confidential
communication to an attorney. Thus, we
hold that the trial judge did not commit
clear error in finding that Plant’s
statements to his lawyer lacked sufficient
guarantees of trustworthiness.
The defendant argues that
Copper we ld Steel Co v. Demag
Mannersmann Bohler, supra, shows that
the trial judge erred. In Copperweld Steel,
Copperweld contended that another
company, Demag, had supplied it with
unsatisfactory machinery. See 578 F.2d at
956. Demag argued that a Copperweld
officer, Holmquist, was fully aware of and
accepted the risks presented by the
machine in question. Id. Holmquist died
before the trial, and Demag was permitted
to introduce a memorandum in which a
Copperweld attorney recounted statements
made by Holmquist concerning the
machine. Id. at 963-64 & n. 14. The trial
judge found that the memorandum
possessed sufficient guarantees of
trustworthiness to permit the admission of
Holmquist’s statements under the residual
exception, and our Court affirmed.
Copperweld does not persuade us
that the District Court erred in the present
case. The circumstances in the two cases
were substantially different, and an
assessment of the guarantees of
trustworthiness relating to any statement is
necessarily highly fact-specific. That the
Copperweld trial judge did not commit
clear error in finding that the statements at
issue there possessed sufficient indicia of
reliability hardly shows that the trial judge
in this case erred in finding that Plant’s
statements did not. Accordingly, we hold
that the District Court did not err in
refusing to admit Plant’s statements.
B.
The defendant also claims that the
District Court erred when it refused to
admit evidence that tended to show Plant’s
good character. The defendant contends
that such evidence was relevant to show
that Plant was not involved in the illegal
scheme with which the defendant was
charged and that this would have
supported his defense that “there was no
conspiracy or agreement.” Appellant’s Br.
at 40. The defendant argues that evidence
of Plant’s good character was admissible
under Federal Rule of Evidence 404(a)(1)
because Plant was an unindicted
coconspirator and therefore an “accused.”
This argument is without merit.
Federal Rule of Evidence 404(a)(1)
provides (emphasis added):

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Evidence of a person's
character or a trait of
character is not admissible
for the purpose of proving
a c t i o n i n c o n fo r m i t y
therewith on a particular
occasion, except:
( 1 ) C h a r a c t e r o f
Accused.--Evidence of a
pertinent trait of character
offered by an accused, or by
the prosecution to rebut the
same.
The term “accused” is usually used
to denote a defendant in a criminal case,
see, e.g., BLACK’S LAW DICTIONARY 23
(6th ed. 1990)(defining “accused” as “[t]he
generic name for the defendant in a
criminal case”), and the Federal Rules of
Evidence generally conform to this usage.
See Fed. R. Evid. 104(d), 608(b), 609(a),
803(22), 804(b)(3). In Rule 412, where
the term is used in a broader sense, the
Advisory Committee Note so states. See
Fed. R. Evid. 412, Advisory Committee
Notes, 1994 Amendments.
In Rule 404(a)(1), the term
“accused” appears clearly to have been
used in the conventional sense to denote a
criminal defendant. Rule 404(a)(1)
codified a deeply rooted common law rule.
See Fed. R. Evid. 404(a)(1), Advisory
Notes, 1972 Proposed Rules, Notes to
Subdivision (a). This common law rule
permitted a criminal defendant to
introduce pertinent evidence of good
character. See, e.g., MCCORMICK ON
EVIDENCE § 191 (5th ed. 1999)(emphasis
added)(“The common law and the Federal
and Revised Uniform Rules of Evidence
permit the defendant, but not the
government, to open the door to character
evidence.”); 22 CHARLES ALAN WRIGHT &
KENNETH W. GRAHAM, JR., FEDERAL
PRACTICE AND PROCEDURE § 5236 at 380
(1978)(emphasis added)(Rule 404(a)(1)
“codifies the common law rule giving the
criminal defendant a choice of either
remaining under the protection of the
general rule [barring the use of character
evidence to prove conduct] or opening up
the issue of character by introducing
evidence that his character is good to
support an inference that he did not
c o m m i t t h e c r i m e c h a r g e d ” ) ;
CHRISTOPHER B. MUELLER & LAIRD C.
KIRKPATRICK, FEDERAL EVIDENCE § 101
at 544 (2d ed. 1994)(emphasi s
added)(Rule 404(a)(1) is based on a deeply
rooted tradition that “allows the defendant
in a criminal case to introduce evidence of
a pertinent trait of his character as
circumstantial proof that he did not
commit the charged crime”). We have
found no support for the proposition that
Fed. R. Evid. 404(a)(1) was meant to
sweep more broadly. Nor have we found
cases interpreting the term “accused” as
used in that provision as referring to
anyone other than a criminal defendant.
Consequently, we reject the defendant’s
argument that this provision applies to an
unindicted coconspirator.3
3Furthermore, even if Plant could be
regarded as an “accused,” Rule 404(a)(1)
would not permit the defendant to offer

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13
IV.
The defendant claims that he is
entitled to a new trial due to “prejudicial
spillover” from the evidence that was
admitted to prove the bribery counts on
which the District Court granted judgment
of acquittal. Contrary to LAR 28.0(a)(1),
the defendant’s opening brief did not
identify any place in the record of the
proceedings before the District Court
where this argument was made. In its
brief, the government asserted that the
issue of prejudicial spillover was not
raised “in any relevant pleading,”
including the defendant’s motion for a new
trial. Appellee’s Br. at 44. The
government argued that because the
defendant had not raised the issue of
prejudicial spillover in the District Court,
the proper standard of review is plain
error. Id. The defendant filed a reply brief
and addressed the issue of prejudicial
spillover but said nothing in response to
the government’s contention that the issue
had not been raised in the District Court in
any relevant pleading. See Reply Br. at
14-15.
Under these circumstances, we need
not reach the merits of the argument that
prejudicial spillover requires a new trial.
Rule 33 of the Federal Rules of Criminal
Procedure authorizes a trial judge to grant
a new trial “[o]n a defendant’s motion.”
Under this rule, “a judge has no power to
order a new trial on his own motion.” Fed.
R. Crim. Proc. 33, Advisory Committee
Notes, 1966 Amendments. A judge “can
act only in response to a motion timely
made by a defendant.”4 Id. Accord United
States v. Newman, 456 F.2d 668, 669-70
(3d Cir. 1972). Indeed, even if a
defendant moves for a new trial, a trial
judge may not grant a new trial on a
ground not raised in the motion. Id. at
evidence of Plant’s good character. Rule
404(a)(1), which is entitled, “Character
of Accused,” refers to “[e]vidence of a
pertinent trait of character offered by an
accused.” Thus, Rule 404(a)(1) permits
an accused to offer evidence of the
accused’s own character. It does not
permit one accused to offer evidence of
another’s character.
4Courts have recognized a few narrow
exceptions to this requirement. For
example, under some circumstances a
trial judge may sua sponte grant a
mistrial and order a new trial, and a
judge may treat a motion for judgment of
acquittal as a motion for a new trial if
“the arguments underlying the motion
[for judgment of acquittal] justify a new
trial.” See 3 CHARLES ALAN WRIGHT,
NANCY J. KING, AND SUSAN R. KLEIN,
FEDERAL PRACTICE AND PROCEDURE
(CRIMINAL) § 552 at 459-60, 463 (2004).
However, no recognized exception
applies here. The trial judge did not
grant a mistrial, and the defendant’s
motion for judgment of acquittal did not
raise (and logically could not have
raised) the issue of prejudicial spillover.

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670-72.
In the present case, the defendant
did not move for a new trial based on
prejudicial spillover, and therefore the
District Court could not have granted a
new trial on that ground. In any event,
even if the defendant had moved for a new
trial based on prejudicial spillover and the
trial court had denied the motion, we
would not reverse. The only evidence that
would not have been admissible if the
bribery counts had not gone to trial was
minor, dry, and technical. We see no
realistic likelihood that the strategy of the
parties on the other counts would have
been altered in any way or that the jury’s
verdicts on those counts would have been
affected. See United States v. Murphy,
323 F.3d 102, (3d Cir. 2003).
V.
The defendant’s final argument is
that the District Court erred in holding that
it lacked the power to grant a downward
sentencing departure based on the
charitable acts that the defendant
performed as a minister. We disagree.
U.S.S.G. § 5H1.11 provides as
follows:
Military, civic, charitable, or
p u b l i c s e r v i c e ;
e m p l o y m e n t - r e l a t e d
contributions; and similar
prior good works are not
o rdinarily releva nt in
determining whe ther a
sentence should be outside
the applicable guideline
range.
A District Court, however, may grant a
downward departure if a defendant has
made civic or charitable contributions “to
an exceptional degree or, in some way,
that makes the case different from the
ordinary case in which the factor is
present.” United States v. Serafini, 233
F.3d 758, 772 (3d Cir. 2000); see also
United States v. Jordan, 130 F.Supp.2d
665 (E.D.Pa. 2001). This is a hard
standard to meet.
In Serafini, a panel of our Court
considered the application of this standard
to good works performed by a state
legislator. In that case, more than 150
letters were submitted to the District Court
in an effort to persuade the Court to
impose a lenient sentence, and the Court
granted a downward departure grounded
on the defendant’s community and
charitable activities. See 233 F.3d at 772.
The panel affirmed the downward
departure based solely on those letters that
referred to the defendant’s “assistance, in
time and money, to individuals and local
organizations.” By contrast, the panel
stated that the contents of other letters that
referred to the defendant’s “activities as a
state legislator” could not form the basis
for a departure. The panel wrote:
Conceptually, if a public
servant performs civic and
charitable work as part of
his daily functions, these

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should not be considered in
his sentencing because we
expect such work from our
public servants.
Id. at 773. The panel thus drew a
distinction between “the political duties
ordinarily performed by public servants”
(which “cannot form the basis of a
departure”) and “extraordinary community
service” (which can).
We do not understand the
discussion in Serafini to mean that a
person whose occupation involves
charitable or civic work can never qualify
for a downward departure based on
extraordinary good works that relate to that
occupation. Such a rule would lead to
anomalous results. For example, a
physician who earns a high income in
private practice while also making
extraordinary contributions in providing
health care to the poor might qualify for a
downward departure, while a physician
who gives up the possibility of a career in
private practice to work full time in a low
paying job devoted to helping the poor
would not. Rather than endorsing such a
regime, the discussion in Serafini stands
for the proposition that “the political duties
ordinarily performed by public servants” –
the sort of duties that are generally needed
to stay in office – cannot qualify. It is,
rather, only when an individual goes well
beyond the call of duty and sacrifices for
the community that a downward departure
may be appropriate. See, e.g., United
States v. McHan, 920 F.2d 244, 248 (4th
Cir. 1990) (disapproving of the idea that a
rich defendant can simply write checks to
a charity and later ask for a downward
departure.)
Here, the District Court recognized
that the defendant’s contributions to the
c o m m u n i t y w e r e “ p r o f o u n d , ”
“substantial,” and “sustained,” App. 60,
but the Court nevertheless denied the
motion for a downward departure. In
doing so, the Court stated:
The Third Circuit [in
Serafini] has guided us with
regard to charitable works
a n d c o n t r ib u t i o n s o f
c o m m u n i t y r e l i g i o u s
leaders, and said that if a
public servant performs
civic and charitable work as
part of his daily functions,
t h e s e shou ld no t b e
considered in a sentencing
because we expect such
work from our public
servants.
Id. at 61.
The District Court, however, did
not end with this observation but went on
to acknowledge testimony that no other
member of the clergy in the district
engaged in some of the types of good work
that the defendant performed. Id. The
Court stated that this work was “certainly
commendable” but that it was “not
persuasive in this situation.” Id. The
Court explained:

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It may seem harsh to say,
and I guess it is, but the
Court also believes it cannot
permit the defendant to hide
behind the very community
from whom he stole. He
solicited money which he
purported to use to help
parishioners of his Church
and the community at large.
Instead he used the money,
a s w e h a v e h e a r d
uncontested testimony, to do
things, personal things fix
up his car, his son’s house,
and to gamble.
Thus, the Court will not
downwardly depart based
upon the defendant’s civic
w o r k a n d c h a r it a b le
contributions.
Id. at 61-62.
As we understand the basis for the
District Court’s decision, the Court held
that, the defendant’s net charitable and
civic contributions – taking into account
both the good and bad that he did in his
capacity as a member of the clergy –
cannot be considered as so extraordinarily
positive as to warrant a downward
departure. We agree with this analysis and
with the District Court’s conclusion that
the requested downward departure was not
permitted.
V.
We have considered all of the
defendant’s arguments and have found no
ground for reversal. The defendant’s
conviction and sentence are therefore
affirmed.

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