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A federal appeals court has upheld the corruption convictions of Philadelphia’s former treasurer, Corey Kemp, and two Commerce Bank executives, rejecting their claim that their trial was unfair because the judge improperly replaced a juror during deliberations. The unanimous three-judge panel concluded that U.S. District Judge Michael M. Baylson had acted properly in removing the juror because there was “overwhelming” evidence that she was biased against the government. With his May 2005 conviction, Kemp became the highest-ranking official convicted in a wide-ranging city-corruption probe that became public in 2003 when police discovered an FBI bug in Mayor John F. Street’s office. Street was never charged. Kemp, 37, was convicted on 27 counts and later sentenced to 10 years in prison. Commerce Bank executives Glenn Holck, 46, and Stephen Umbrell, 47, were also convicted of conspiracy. Prosecutors told the jury that Kemp had given much of his official power as treasurer to Philadelphia Democratic fundraiser Ronald A. White in exchange for a new deck on his house, an all-expenses-paid trip to the 2003 Super Bowl, parties in his honor and $10,000. White, who died of cancer in November while awaiting trial, was a board member at Commerce Bank and a former fundraiser for Street. The indictment charged Holck and Umbrell with participating in the conspiracy by extending, through Commerce Bank, otherwise-unavailable loans to Kemp in exchange for preferential treatment from Kemp on official matters. The jury handed up mixed verdicts for the other two defendants – La-Van Hawkins, a Detroit businessman who once owned dozens of fast food restaurants, and White’s longtime girlfriend, Janice Knight, who owned a printing business. Hawkins was acquitted of conspiracy charges, but convicted of a charge that he committed honest services wire fraud by helping White funnel $5,000 to Kemp. He was also convicted of lying to a grand jury during the investigation. Knight was convicted of making false statements to FBI agents. The jury couldn’t agree on whether she was guilty of conspiracy. The verdict came on the 19th day of jury deliberations following a trial that took parts of three months. On appeal, all five defendants challenged Baylson’s decision to discharge Juror No. 11 in the midst of deliberations. But the 3rd Circuit rejected their arguments, finding that Baylson had conducted a careful and patient investigation of allegations that the juror was biased, and that it would have been wrong to do nothing. “The evidence was so overwhelming that Juror 11 was biased that it would have been a dereliction of duty for a judge to remain indifferent,” U.S. Circuit Judge Robert E. Cowen wrote in United States v. Kemp. Cowen said the 3rd Circuit has never articulated a standard for trial judges to follow when considering whether to remove a juror during deliberations, but that other courts have. The best test, Cowen said, is one that calls for proof equivalent to the reasonable-doubt standard that the juror is not being removed for any reason relating to his or her opinions about the evidence. Announcing the standard, Cowen said that “courts may discharge a juror for bias, failure to deliberate, failure to follow the district court’s instructions, or jury nullification when there is no reasonable possibility that the allegations of misconduct stem from the juror’s view of the evidence.” The need for such a high standard prior to dismissal, Cowen said, stems from the criminal defendant’s Sixth Amendment right to a unanimous jury verdict. “If the government is able to remove a holdout juror because of ambiguous allegations of improper behavior during deliberations, and replace this holdout with a more amenable juror, then the defendant’s constitutional right to a unanimous verdict has been violated,” Cowen wrote. “The only way to satisfy the defendant’s constitutional right to a unanimous verdict in the juror discharge context is to only permit removal when the district court finds, beyond a reasonable doubt, that the holdout’s reasons were not related to the merits of the case,” Cowen wrote in an opinion joined by 3rd Circuit Judge D. Brooks Smith and visiting 6th Circuit Judge Eugene E. Siler Jr. Applying that test, Cowen found that Baylson’s decision to remove the juror was “inescapable.” Baylson had received “near-unanimous” reports from the other jurors that Juror 11 was biased, Cowen noted, and Juror 11 herself, when questioned, gave a “manifestly incredible” response to the allegations. In a note to Baylson, one juror complained that when Juror 11 was presented with evidence, she responded “show it to someone who cares” and closed her eyes. The note also said Juror 11 repeatedly made conclusory comments that the government was “lying” and that the FBI was “biased.” Cowen said the evidence proved that “Juror 11 was indeed biased and constructed a post hoc story to try to obfuscate that bias.” In his 78-page opinion, Cowen also rejected Kemp’s argument that the charges against him were legally flawed. “We have repeatedly recognized that accepting money in exchange for an official action is a form of honest services fraud,” Cowen wrote. “Here, the government presented sufficient evidence for a reasonable jury to find beyond a reasonable doubt that Kemp violated that trust by soliciting and accepting payment in exchange for taking official action.” Likewise, Cowen rejected the argument that the charges against the bank executives were also flawed. “The indictment here adequately charged Holck and Umbrell with the bribery theory of honest services wire fraud,” Cowen wrote. The indictment charged Holck and Umbrell with engaging in “a scheme to defraud the city of Philadelphia and its citizens of the right to . . . Kemp’s honest services” by extending benefits to him with the intent to influence his official actions, and by providing those benefits in exchange for Kemp’s favorable decisions. “These allegations were sufficient to charge Holck and Umbrell with honest services fraud under a bribery theory,” Cowen wrote. Kemp’s lawyer, Lloyd G. Parry of Davis Parry & Tyler, declined to comment, saying he has not yet studied the opinion in detail or discussed it with his client. (Copies of the 78-page opinion in United States v. Kemp , PICS No. 07-1276, are available from The Legal Intelligencer . Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m.)

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