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Wednesday, June 9th, 2021

Scheme to Bribe Basketball Coaches Fouls Out.

In United States v. Dawkins, No. 19-3623(L) (2d Cir. June 4, 2021) (Raggi, Sullivan, and Nardini), the Circuit affirmed the defendants’ convictions arising from a scheme to bribe college basketball coaches, in violation of 18 U.S.C. § 666(a)(2). As relevant, Section 666 makes it a crime to bribe “an agent of an organization … in connection with any business, transaction, or series of transactions of such organization … involving anything of value of $5,000 or more,” provided that “the organization … receives, in any one[-]year period, [federal] benefits in excess of $10,000.”

The defendants argued on appeal, among other things, that this statute requires (1) a “nexus” between the “agent” to be bribed and the federal funds received by his or her organization; and (2) evidence that the “business” of a federally funded organization, to which the bribery scheme is connected, be commercial in nature.

The Circuit rejected both …

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Tuesday, February 23rd, 2021

Circuit affirms convictions of Dean and Adam Skelos, concluding than a McDonnell error in the court’s charge to the jury was harmless beyond a reasonable doubt.

In United States v. Dean Skelos and Adam Skelos, 2d Cir. Nos. 18-3421 & 18-3442 (Feb. 23, 2021), a panel of the Court (Walker, Sack, and Carney) affirms the Skeloses’ convictions, following a 2018 retrial, for various public-corruption and bribery related offenses (Dean Skelos was the Majority Leader of the New York State Senate and Adam Skelos is his adult son). Their earlier convictions, following a 2015 trial, had been vacated in light of the Supreme Court’s decision in “McDonnell v. United States, 136 S. Ct. 2355 (2016), which narrowed the definition of the ‘official act’ that a public official must exchange for benefits in order to be convicted of Hobbs Act extortion or honest services fraud, where those crimes have been defined by reference to the term ‘official act’ in the federal bribery statute, 18 U.S.C. § 201. Because the McDonnell definition conflicted with the broader …

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Friday, January 8th, 2021

Second Circuit rejects application of the categorical approach for determining an “offense against property” under the MVRA.

In United States v. Razzouk, No. 18-1395 (2d Cir. Jan. 4, 2021), the Second Circuit, in an opinion by Judge Carney, joined by Judge Walker and District Judge Koeltl, held that in determining whether a conviction is for an “offense against property,” such that restitution is required under the Mandatory Victims Restitution Act (“MVRA”), 18 U.S.C. § 3663A(c)(1)(A)(ii), a court may consider the facts and circumstances of the specific crime committed—not just the generic elements of the offense. The appellant had argued that his bribery conviction, which was based on a statute that does not refer to “property” or necessarily implicate its involvement, should not be subject to mandatory restitution. The Circuit rejected this, finding that an analysis based on the categorical approach was unwarranted and concluding that the facts of his case supported that it was an “offense against property.”

Defendant-appellant Sassine Razzouk pleaded guilty to one count …

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Thursday, September 10th, 2020

Federal law barring false voter registrations applies to town election because New York’s “unitary registration scheme” allows a falsely registered voter to vote in future federal elections. And the Travel Act’s bar on “bribery” is not limited to acts involving public officials (as payees) and encompasses a New York law barring payments to voters.

In United States v. Smilowitz, 2d Cir. No. 19-361 (Sep. 8, 2020), a panel of the Court (Walker, Parker, and Carney) ruled that the defendant’s conduct of falsely registering voters for a town election, and of offering payment to voters for their votes in that election, fell within the reach of the federal election law, 52 U.S.C. § 10307, and qualified as “bribery” under the Travel Act, 18 U.S.C. § 1952(b). Here are the essential facts.

Smilowitz owned part of a real-estate development in Bloomingburg, New York, population 420. It had a mayor and two trustees.

In 2013 those officials voted against a measure that would have benefitted Smilowitz and several other real-estate developers. Hoping to overturn that decision, Smilowitz and his confederates tried to influence the 2014 election and replace the local officials with candidates amenable to them.

The conspirators did several things giving rise to this prosecution. …

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Tuesday, August 4th, 2020

District court erred in relying on uncharged conduct to select the applicable Guideline provision, and the error is not harmless despite the court’s claim that it would have imposed the same sentence under the correct Guideline.

In United States v. Huberfeld, 2d Cir. No. 19-436 (L), the Court (opinion by Judge Pooler, joined by Judges Lynch and Menashi) vacated both a 30-month sentence and a $19 million order of restitution for basically the same reason – the district court erred in relying on uncharged criminal conduct, beyond and broader than what the defendant actually pleaded guilty to via a negotiated information and plea agreement, in selecting the applicable Guideline provision and awarding restitution. The Court also found that the Guideline-selection error is not harmless, despite the district court’s claim that it would’ve imposed the same 30-month sentence under the correct Guideline, because under the circumstances here, the Court was not “confident” that the incorrect range did not “clearly” affect the court’s selection of the ultimate sentence.

Here’s the factual gist. Huberfeld solicited investments for Platinum Partners, a hedge fund. He spoke to co-conspirator Jona Rechnitz, …

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Tuesday, September 26th, 2017

Second Circuit Reverses Skelos Convictions

In a relatively lengthy summary order, the Second Circuit reversed Dean and Adam Skelos’s convictions in light of the Supreme Court’s decision in McDonnell v. United States, 136 S. Ct. 2355 (2016). The order is available here.

Dean Skelos and his son were convicted under the Hobbs Act and the honest services and federal bribery statutes. Each of their charged offenses included the performance of an “official act” as an element. The district court’s jury instructions provided that an “official act” does “not need to be specifically described in any law, rule, or job description, but may also include acts customarily performed by a public official with a particular position.” Sum. Order at 3. Consistent with this definition, a government witness testified that the “official duties” of a state senator included “assist[ing] individuals or companies in getting meetings with state agencies.” Id. at 11. Subsequent to trial, the …

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Categories: bribery, harmless error, Hobbs Act, honest services fraud

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Thursday, December 1st, 2016

Supreme Court Rejects Double Jeopardy Claim

On Tuesday, in Bravo-Fernandez v. United States, the Court decided that, when a jury has returned inconsistent verdicts in a multi-count criminal case—acquittals on some counts but a conviction on another—and the conviction is subsequently vacated on appeal because of erroneous jury instructions, the double jeopardy clause does not preclude the government from retrying the defendant on the count that produced the conviction. Because “inconsistent verdicts shroud in mystery what the jury necessarily decided,” the Court ruled, the issue preclusion doctrine of Ashe v. Swenson cannot be applied.

The defendants were indicted in separate counts for federal bribery, conspiracy to commit that bribery, and traveling in furtherance of the bribery. Because the defendants conceded that they had both agreed and travelled, “the only contested issue at trial” was whether the offense of bribery had in fact been committed. At trial, the jury acquitted on the conspiracy and travel counts …

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Thursday, October 20th, 2016

Bribery Convictions Affirmed Notwithstanding McDonnell Error

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 …

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