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United States v. Allinson

United States District Court, E.D. Pennsylvania

July 30, 2018

UNITED STATES OF AMERICA
v.
SCOTT ALLINSON

          MEMORANDUM

          JUAN R. SÁNCHEZ, J.

         On March 1, 2018, after a six-week jury trial, Defendant Scott Allinson was convicted of one count of conspiracy and one count of federal program bribery for his role in a pay-to-play scheme orchestrated by former Allentown Mayor Edwin Pawlowski, Allinson's co-defendant. At the close of the Government's case, and again at the close of all evidence, Allinson moved for judgment of acquittal on both counts pursuant to Federal Rule of Criminal Procedure 29, arguing the Government's evidence at trial was insufficient to convict him. The Court reserved ruling on the motion. Following the verdict, Allinson filed a motion for new trial pursuant to Federal Rule of Criminal Procedure 33, arguing the verdict was against the weight of the evidence, the Government's closing argument improperly urged the jury to apply the incorrect legal standard, and the Government's proof at trial went beyond the allegations in the Indictment, resulting in a constructive amendment. By Order of June 29, 2018, this Court denied Allinson's Rule 29 and Rule 33 motions. Pursuant to Third Circuit Local Appellate Rule 3.1, the Court issues this Memorandum to summarize the basis for its rulings.

         BACKGROUND

         On July 25, 2017, Allinson, Pawlowski, and a third Defendant, James Hickey, were charged by indictment with corruption-related offenses arising out of Pawlowski's pay-to-play scheme in the City of Allentown, in which Pawlowski was alleged to have accepted over $150, 000 in campaign contributions in exchange for the use of his official position. Allinson, an attorney, was named in two counts of the 55-count Indictment, in which he is accused of trying to direct city legal work to his law firm in exchange for the promise of campaign contributions. Count One charged him with conspiracy to commit federal program bribery, in violation of 18 U.S.C. § 371, and Count Nineteen charged him with the substantive offense of federal program bribery, in violation of 18 U.S.C. § 666(a)(2).

         Allinson and Pawlowski proceeded to trial in January 2018.[1] At trial, the centerpiece of the Government's case against Allinson was a series of recorded conversations between Allinson and two of Pawlowski's operatives-Michael Fleck, Pawlowski's campaign manager, and Sam Ruchlewicz, who worked for Fleck. In the recordings, which spanned from December 30, 2013, to June 29, 2015, the parties unmistakably discussed plans to funnel legal work from the City of Allentown to Allinson's law firm (Norris McLaughlin) and to ensure that Allinson received origination credit for the work, in exchange for campaign contributions from Norris McLaughlin to Pawlowski. The Government also introduced recordings of conversations between Pawlowski and his operatives, demonstrating Pawlowski's awareness and involvement in this pay-to-play scheme.

         The recordings reveal Allinson's view that Pawlowski could expect campaign contributions from Norris McLaughlin only in exchange for legal work for the City. On December 10, 2014, for example, Allinson complained to Ruchlewicz that members of his law firm were disappointed that Pawlowski had given a City legal matter to another law firm, and he explained that as a result, he was not in a position to “rally [his] troops with their checks, ” see Gov't's Ex. SR21183T at 2.[2] Allinson repeatedly stressed to Ruchlewicz that he was “just talking [their] dialect of English, ” adding that his firm had “been unbelievably supportive in the past” but that “now, you know, the work's going everywhere but [] to [their] shop, ” and reported that this was “a short[-]term fixable issue.” Id. at 3.

         Two days later, on December 12, 2014, Ruchlewicz informed Allinson that the current solicitor for the Allentown Parking Authority was going to be terminated from employment and Richard Somach, a partner in Allinson's firm, would receive the appointment. See Gov't's Ex. SR21602T at 1-2. Ruchlewicz further explained that the appointment would go through Allinson to ensure that Allinson received origination credit for the work. Id. at 2. Ruchlewicz then stated, “I need you guys to do something for the mayor's holiday party, ” to which Allinson responded, “Here's what we're gonna do. . . . I'll speak, I'll speak our dialect of English” and expressed willingness to be a sponsor for Pawlowski's holiday party and to write a check for $2, 500 after January. Id. at 3.

         A month later, on January 22, 2015, Ruchlewicz told Allinson he had solved Allinson's “[P]arking [A]uthority problems, ” and Allinson responded, “If you solve that problem, you get the golden goose.” Gov't's Ex. SR286T at 1. When Ruchlewicz then stated that Fleck and Pawlowski wanted Allinson's help raising money for Pawlowski's United States Senate campaign, Allinson agreed to do so, saying, “Well of course I am going to raise money.” Id. at 3.[3] The next day, at a breakfast meeting, Ruchlewicz said, “Umm, so our particular brand of English.” See Gov't's Ex. SR287T at 1. He then told Allinson that he and Fleck had talked to Pawlowski and informed him that all legal work given to Norris McLaughlin would go through Allinson. See id.

         The following week on February 3, 2015, Allinson explained to Fleck that if he were to receive a phone call requesting that he oversee the Allentown Parking Authority solictorship, then he would “get a hundred percent of the[] kind of credit that turns into money that goes out of [his] checkbook where [Fleck and Ruchlewicz] want it to go.” Gov't's Ex. SR301T at 5. Allinson elaborated: “If it comes to me and I get the billing credit, then I get the full stack of cash on my side to do with it what I need to do, annually.” Id. at 6. Allinson then represented that Matthew Sorrentino, the chairman of Norris McLaughlin, would be cooperative in ensuring that contributions were made to Pawlowski, explaining: “Matt and I have always spoken[] the same language. . . . Matt and I control the flow of political donations.” Id.

         On February 11, 2015, Ruchlewicz asked Allinson to stop by Pawlowski's Mardi Gras fundraiser on February 13, 2015. Gov't's Ex. SR27984T at 2. Allinson confirmed that he would attend the fundraiser and bring a check. Id. Ruchlewicz responded, “I love you Scotty, but I love that even more, ” to which Allinson replied, “Yeah, I understand. That's the way it works.” Id. Ruchlewicz then told Allinson that Pawlowski had taken care of all of Allinson's problems, and said he had told Pawlowski that Norris McLaughlin loved him and that “everything was gonna work out, and we have to keep giving Scotty all the things that Scotty loves.” Id. Allinson asked about Pawlowski's response, and Ruchlewicz stated, “He was like well, he's like yeah, good, as long as it's all worked out. He's like, I'm happy to support Scott. He's like, I always have. He's like, we've given him lots of stuff and we want to continue to do that.” Id. at 3. Allinson responded “Cool, alright, we'll make all that happen.” Id.

         Two days later, on the day of the Mardi Gras fundraiser, Ruchlewicz met with Allinson and told him that he had spoken to Allentown City Manager Francis Dougherty, and that the Parking Authority contract was going to go to Allinson: “It's gonna go to you. The email will come to you. It's gonna say Scott[y], we'd really like Norris to come in, and the attorney we were thinking about is Rich Somach. The first email will come to you. Then and after that you can do whatever you have to do on your end.” Gov't's Ex. SR318T at 4. Allinson stressed to Ruchlewicz that he needed to get financial credit for the parking solicitor work assigned to Norris McLaughlin. See id. at 5-6 (“[W]hen the fish comes in off the boat . . . [i]f you're not holding the fishing rod, you're not gonna get financial credit in our internal system.”). Ruchlewicz assured Allinson he would be taken care of: “[Y]ou know what the [M]ayor cares about. . . . And the [M]ayor's got plans. He's got to raise money. So as long as checks come in, I can go to Ed and say, look, [M]ayor . . . Norris has held up their end of the bargain . . . [w]e need to hold up ours.” Id. at 6-7. Ruchlewicz concluded the conversation by stating the “machine is going” and “[e]verybody understands what has to be done.” Id. at 7. Later the same day, after the fundraiser, Ruchlewicz informed Pawlowski that Allinson showed up to the event with a check[4] and said, “Installment number one is in.” Id. Ruchlewicz also recounted his conversation with Allinson in which Allinson told him to make sure Pawlowski knew he had brought a check. Id. Ruchlewicz told Pawlowski that he had told Allinson they could continue with the “Somach to solicitor plan.” Id. Pawlowski noted his approval, responding, “That's good.” Id.

         Approximately one month later, on March 25, 2015, in a discussion with Fleck and Ruchlewicz about getting work from the City for Norris McLaughlin, Allinson acknowledged that the work would be in exchange for campaign contributions, explaining that he would tell his law partner, “If you guys are going to handle the [City] work and deal with all that stuff, you're gonna have to work with [Fleck] and [Ruchlewicz] on . . . cobbling some money together. This isn't like we're being hired because we are good guys, it's not the way this shit works. . . . It just isn't. I don't care how good you are.” Gov't's Ex. MF09T at 4.

         On April 1, 2015, Pawlowski explained to Ruchlewicz that he was working on getting the Parking Authority solicitorship assigned to Norris McLaughlin. See Gov't's Ex. SR365CT at 1. Ruchlewicz stressed that the solicitorship had to go through Allinson even though Somach would do the work because Allinson was the firm's managing partner and controlled the political action committee money. See id. at 2. Pawlowski confirmed these terms, responding, “that's logical, ” and “[g]otcha.” Id. When Ruchlewicz reiterated that it was “very, very important that Scott[y] gets that call so . . . that when we call Scotty there's money in their little fund, ” Pawlowski again said, “I got you.” Id.

         Allinson later participated in a sit-down meeting with Pawlowski, Fleck, and Sorrentino-the chairman of Norris McLaughlin-where Pawlwoski made a pitch as to why he would make a good candidate for Senate and asked the firm to raise $25, 000 in campaign contributions before June 30, 2015. See Gov't's Ex. MF58T at 1-2. Sorrentino, whom Allinson had previously identified to Fleck and Ruchlewicz as “speaking the same language” stated that supporting Pawlowski would be good “from a legal work” perspective. Id. at 3. Following this May 20 meeting, Allinson told Ruchlewicz: “You know, $25, 000 is a lot of fucking money when you're getting absolutely zero back from the [C]ity. I mean, I mean when I tell you bone dry, bone fucking dry.” Gov't's Ex. SR39323T at 1. Ruchlewicz responded, “Well, we'll have to change that. The [M]ayor will.” Id. On June 17, 2015, Fleck called Allinson and told him, “I told you about the . . . Somach[] solicitorship. Everything will go through you. It will happen after, you know, the June 30th deadline that we have. But, Somach called Ed yesterday asking when he's gonna be appointed.” Gov't's Ex. MF12729T at 1. Ruchlewicz then relayed what Pawlowski had responded to Somach: they have a June 30th deadline, he and Somach would talk after the deadline, and that he was working with Allinson and Sorrentino. Id. Allinson said that he would manage whatever he needed to internally. Id.

         On June 29, 2015, Fleck told Pawlowski that Norris McLaughlin came through with $17, 300 in campaign contributions, [5] and Pawlowski responded, “Great. . . . Awesome.” Gov't's Ex. MF95-0227T at 1. When Fleck asked if they could now appoint Somach to the Parking Authority, Pawlowski noted that he first needed to get rid of the current solicitor and he didn't control the board's decisions, but that he could talk to the board. Id. at 1-2. He and Fleck then discussed another way to get the current solicitor to withdraw. Id. at 2.

         The Government also presented testimony concerning a trust account, the Trexler Trust, as additional legal work being awarded to Allinson's firm in exchange for campaign contributions. Jerry Snyder, the former solicitor of the City of Allentown, testified that the prospect of Norris McLaughlin handling the Trexler Trust matter on behalf of the City with Oldrich Foucek, a Norris McLaughlin attorney, first arose in 2013 or 2014. See Trial Tr. Day 14 at 281-82. He further testified that in 2013 or 2014, he recommended to Pawlowski that Judith Harris from Norris McLaughlin handle the Trexler Trust. Id. at 283. Susan Wild, the City solicitor from January 2015-January 2018, also testified. She stated that no one directed her to give Allinson or Norris McLaughlin work. See id. at 110-11. City Manager Francis Dougherty also provided testimony that Pawlowski had asked him to reach out to Norris McLaughlin concerning the Trexler Trust, and he had identified Judith Harris as someone who could “possibly” assist with the work. See Trial Tr. Day 3 at 209-10, Jan. 23, 2018. Dougherty further testified that he had received a message from Ruchlewicz that “all legal work to Norris McLaughlin had to be funneled through a gentleman named Scott Allinson.” Id. at 210.

         Allinson did not testify in his defense, but presented testimony from several fact witnesses, including members from Norris McLaughlin who had donated to Pawlowski in June 2015 following the May 20, 2015, meeting. Attorneys Oldrich Foucek, Charles Smith Jr., and Scott Lipson each testified they made their donations to Pawlowski in June 2015 after Sorrentino, the firm's chairman, asked them whether they would consider donating to Pawlowski's campaign. See Trial Tr. Day 16 at 18, 45, 56, Feb. 14, 2018 (hereinafter Trial Tr. Day 16). Foucek testified that he had not spoken to Allinson about his donation. See id. at 21. Smith and Lipson testified that they had not spoken to Allinson about their donations either, and they made their donations based on the positive transformation they had witnessed in the City during Pawlowski's tenure. See id. at 45-47, 56-57. Sorrentino testified on Allinson's behalf as well, explaining that during the May 20, 2015, meeting with Pawlowski, he told Pawlowski and everyone else present that raising contributions was “doable.” Id. at 94. He also testified about a brief conversation he had with Allinson after the May 20 meeting: Allinson asked him if he could “follow through on the Mayor's request to raise some money for the campaign” and alluded he did not want to contribute personally. Id. at 102. Sorrentino did not have any further conversation with Allinson regarding contributions, and he did not inform Allinson that he or others had agreed to make contributions. Id. at 105-06.

         As to the Trexler Trust, Judith Harris, another attorney from Norris McLaughlin, testified that she never spoke with Allinson about the Trexler Trust matter and that Norris McLaughlin was never retained to represent the Trexler Trust. Id. at 72-73. Allinson's defense concluded with testimony from several character witnesses.

         LEGAL STANDARD

         In evaluating a sufficiency of the evidence challenge pursuant to Rule 29, a district court must “review the record in the light most favorable to the [Government] to determine whether any rational trier of fact could have found proof of guilt beyond a reasonable doubt based on the available evidence.” United States v. Smith, 294 F.3d 473, 478 (3d Cir. 2002) (internal quotation marks and citation omitted). When a court reserves ruling on a Rule 29 motion made at the close of the Government's case, the court must “decide the motion on the basis of the evidence at the time the ruling was reserved.” Fed. R. Crim. P. 29(b); see also United States v. Brodie, 403 F.3d 123, 133 (3d Cir. 2005) (“[T]he District Court was required to, and properly did, determine whether an acquittal was appropriate based solely on the evidence presented by the [G]overnment.”). The court must “review the evidence as a whole, not in isolation, ” United States v. Boria, 592 F.3d 476, 480 (3d Cir. 2010), and should not weigh the evidence or determine the credibility of witnesses, United States v. Dent, 149 F.3d 180, 187 (3d Cir. 1998). So long as there is “substantial evidence, viewed in the light most favorable to the [G]overnment, to uphold the jury's decision, ” the court must sustain the jury's verdict. Brodie, 403 F.3d at 133 (citations omitted). “[A] finding of insufficiency should be confined to cases where the [Government's] failure is clear.” Id.

         Rule 33 permits a court to “vacate any judgment and grant a new trial if the interest of justice so requires.” Fed. R. Crim. P. 33(a). When the sufficiency of the evidence is challenged, the Rule 33 standard differs from the Rule 29 standard in that a court “does not view the evidence favorably to the Government, but instead exercises its own judgment in assessing the Government's case.” United States v. Johnson, 302 F.3d 139, 150 (3d Cir. 2002). The court can order a new trial on the ground that the jury's verdict is contrary to the weight of evidence “only if it believes that there is a ...


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