In United States v. Vincent Tabone and Malcolm Smith, Docket Nos. 15-2351 (L) & 15-2433 (Con), the Court (Newman, Lynch & Droney) in a summary order affirmed the convictions of both defendants, thus concluding (at least at the Circuit level) the saga of Democrat Malcolm Smith’s attempt to run for Mayor of New York City as the Republican Party nominee by way of a “Wilson-Pakula Certificate,” which can be issued upon the approval of at least three of the five Republican Party chairs representing the five NYC boroughs (co-appellant Tabone was the de facto head of the Queens Republican Party). Earlier this year, the Court affirmed the conviction of another member of this scheme. See United States v. Daniel Halloran, 821 F.3d 321, 337 (2d Cir. 2016). As discussed below, the Panel here relies on Halloran to dispose of many of the appellants’ claims. The only issues worth discussing concern the Supreme Court’s decision in McDonnell v. United States, 136 S. Ct. 2355 (2016), decided while this appeal was pending.
Here is a summary of the evidence. Smith, a Democratic member of the State Senate, wanted to run for Mayor of NYC but had little chance of prevailing in the party primary given the crowded field of Democratic candidates. Aware of the Wilson-Pakula mechanism, he sought to run for Mayor as the Republican nominee. To do so, however, he had to obtain the consent of at least three of the five local Republican county chairs, one of whom was Tabone.
This is where “Raj” – an FBI agent posing as a real estate developer – and Stern – a one-time developer who was cooperating with the FBI – come in. They agreed with Smith that in exchange for the developers’ (i.e., Raj and Stern’s) cash bribes to the Republican chairs (including Tabone) to obtain a Wilson-Pakula certificate for Smith, Smith would use his position as a State Senator to channel state funds to help the developers’ projects (for instance, state funds for road improvements that would benefit their development in Spring Valley, New York).
After a jury trial, both defendants were convicted of numerous charges, including a § 371 conspiracy to commit bribery in violation of the Travel Act and honest services wire fraud; honest services wire fraud, in violation of §§ 1346 & 1349; the Travel Act, § 1952(a)(3); and Hobbs Act extortion, § 1951.
On appeal, Smith and Tabone raise numerous arguments, constitutional and otherwise, all of which the Court rejects. Several of these arguments – for instance, the appellants’ claim that §§ 220.45 and 200.50 of the N.Y. Penal Law, as well as the honest services fraud provision of § 1349, are void for vagueness, and that their prosecutions violate principles of federalism – have already been rejected by Halloran and so will not be discussed here. See Order at 2-4. Other arguments – for instance, Tabone’s claim that the evidence was insufficient to show that he owed a fiduciary duty to the Queens Republican Party or that he tampered with a witness – are fact-specific and do not warrant further discussion. Id. at 4-5.
Two closely related arguments deserve attention because they arise from the intervening decision in McDonnell, 136 S. Ct. 2355 (2016). McDonnell ruled that in order to convict a public official of bribery, honest services fraud, or extortion “under color of official right,” the official must have accepted a payment in exchange for committing (or agreeing to commit) an “official act,” defined narrowly as a “formal exercise of governmental power” that is “specific and focused,” thus excluding more nebulous conduct (sometimes described as “routine political courtesies”) such as “[s]etting up a meeting, talking to another official, or organizing an event.” Id. at 2371-72. McDonnell was decided after Smith and Tabone were convicted.
Relying on McDonnell, Smith argues, first, that the evidence of guilt is insufficient in light of that case’s narrow definition of “official act,”, since the Government’s principal proof was that he agreed to “facilitat[e] a meeting between” Raj / Stern and another State Senator (someone who could be persuaded to direct state money to the developers’ project) in exchange for their cash payments to the Republican chairmen. Order at 6. The Court rejects this argument. While “merely setting up a meeting – without more – does not qualify as an official act” after McDonnell, this fact can nonetheless “serve as evidence of an agreement to take an official act.” 136 S. Ct. at 2371.
And here, the Court ruled, the evidence sufficed to show that Smith’s attempt to set up that meeting was just part of his overall effort to obtain state funds for Raj and Stern’s benefit in exchange for their Wilson-Pakula bribes. Among other things, Smith told Raj and Stern that if that meeting was unsuccessful, he would find other channels to obtain state funding for their Spring Valley project. On these facts, the Court concluded, the evidence sufficed to show that Smith agreed “to take official action in exchange for payment of Wilson-Pakula bribes.” Order at 6.
Smith also argues that reversal was warranted because, as in McDonnell, the trial court “failed to define specifically the contours of an ‘official act’ and did not make clear [to the jury] that merely setting up a meeting is not such an act.” Order at 6. The Court rejects this argument, concluding that Smith was not prejudiced by this error.
The “government’s principal theory throughout the trial,” the Court explained, “was that, in exchange for Raj and Stern’s bribes to Tabone and others to secure Smith’s Wilson-Pakula certificate, Smith would use his influence to help [them] obtain state funding for the Spring Valley real estate project.” Order at 7. The “meeting that Smith set up” between the developers and another State Senator was simply evidence of this overall agreement, not the “official act” that Smith agreed to perform in exchange for the developers’ bribes – i.e., the channeling of state money to benefit the developers, which “Smith concedes would be an ‘official act.’” Id. Because the evidence supporting the existence of this agreement was strong, “there is no ‘reasonable probability that the [asserted] error affected the outcome of the trial.’” Id.