bruno government motion to uphold

8/14/2019 Bruno Government Motion to Uphold

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IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA Criminal Action No. 09-CR-29

v.Speedy Trial Act Exclusion Pursuantto 18 U.S.C. 3161(h)(1)(F) & (J)

JOSEPH L. BRUNO, Through 30 Days After Conclusion ofHearing on Pretrial Motions

(Hon. Gary L. Sharpe)Defendant.

Governments Omnibus Memorandum of Law in Opposition toDefendants Three Motions to Dismiss The Indictment, TwoMotions to Strike Portions of the Indictment, and A MotionFor a Bill of Particulars.


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Table of Contents

Introduction and Summary. . . . . . . . . . . . . . . . . . . . 1

I. Honest Services Mail and Wire Fraud Encompasses FailureTo Disclose A Material Conflict of Interest Or Other

Material Information.. . . . . . . . . . . . . . . . . . . 2

A. Pre-McNally Case Law Prohibited, Under The MailFraud Statute, Failure To Disclose Material Conflictsof Interest Or Other Material Information.. . . . . . 4

B. McNally v. United States. . . . . . . . . . . . . . . 8

C. The Enactment of 18 U.S.C. 1346.. . . . . . . . . . 9

D. Following McNally, Failure to Disclose aMaterial Conflict of Interest Or OtherMaterial Information Remains One of the TwoCore Categories of Honest Services Fraud. . . . . 11

II. Argument

A. The Honest Services Statute is NotUnconstitutionally Vague as Applied to This CaseBecause Ordinary People Can Understand That Failureto Disclose Material Conflicts of Interest orRelated Material Information is Prohibited... . . . 16

B. The Allegations of the Indictment are Relevantand Sufficient to Charge Defendant With HonestServices Mail and Wire Fraud... . . . . . . . . . . 24

1. Acts Which Occurred Before June 30, 2003are Relevant to the Honest Services FraudScheme and May Not Be Stricken Simply BecauseThey Are Outside the Statute of Limitations. . .24

2. Evidence Regarding Non-Compliance With StateLaw Is Relevant And Admissible To Defendant'sIntent and Motive, and To Assist the Jury

In Understanding the Actions of Participants,But Allegations of State Law in an IndictmentDo Not Transform Violation of State LawInto An Element of Honest Services Fraud.. . 32

3. Accepting the Allegations in the Indictment AsTrue, as Required When Assessing the Sufficiencyof an Indictment, This Indictment Charges aValid Offense. . . . . . . . . . . . . . . . . .35


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C. The Honest Services Fraud Statute is a ClearExercise of Congresss Power and Does NotViolate Any Federalism Principles.. . . . . . . . . .40

D. The Model Grand Jury Charge is NotUnconstitutional. . . . . . . . . . . . . . . . . . .43

E. The Forfeiture Allegation Should Not beStricken. . . . . . . . . . . . . . . . . . . . . . 50

F. None of the Language in the Indictment isSurplusage. . . . . . . . . . . . . . . . . . . . . 53

1. Allegations Regarding SEC Rule 206-(4)-3are Relevant Evidence Regarding Defendant'sIntent and Motive and As Background. . . . . . 53

2. The Phrases Dishonest Services and

Sham Invoice are Accurate Descriptionsof Relevant Evidence.. . . . . . . . . . . . . 56

3. Defendants Motion To Strike SurplusageShould Be Denied For the Independent ReasonThat He Has Failed To Show That the AllegationsAre Inflammatory and Prejudicial.. . . . . . . 58

G. A Bill of Particulars is Not Required Becausethe Indictment is Detailed and the DiscoveryIncludes Documents of Particular Relevance... . . 59

III. Conclusion.. . . . . . . . . . . . . . . . . . . . . . . 63


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Table of Authorities

FEDERAL CASES

Article II Gun Shop, Inc. v. Gonzales,441 F.3d 492 (7th Cir. 2006). . . . . . . . . . . . . . . . . 26

Badders v. United States,240 U.S. 391 (1916).. . . . . . . . . . . . . . . . . . . . . 40

Ballard v. United States,329 U.S. 187 (1946).. . . . . . . . . . . . . . . . . . . . . 50

Bank of Nova Scotia v. United States,487 U.S. 250 (1988).. . . . . . . . . . . . . . . . . . . . . 50

City of Columbia v. Omni Outdoor Advertising, Inc.,499 U.S. 365 (1991).. . . . . . . . . . . . . . . . . . . . . 39

Hayes Intl. Corp. v. McLucas,509 F.2d 247 (5th Cir. 1975). . . . . . . . . . . . . . . . . . 5

Hamling v. United States,418 U.S. 87, 117 (1974).. . . . . . . . . . . . . . . . . . . 36

Hill v. Colorado,530 U.S. 703 (2000).. . . . . . . . . . . . . . . . . . . . . 17

Kolender v. Lawson,461 U.S. 352 (1983))... . . . . . . . . . . . . . . . . . . . 17

McNally v. United States,483 U.S. 350 (1987).. . . . . . . . . . . . . . . . . 4, 8, 9, 42

Muntaqim v. Coombe,366 F.3d 102 (2d Cir. 2004).. . . . . . . . . . . . . . . . . 18

SEC v. Capital Gains Research Bureau,375 U.S. 180 (1963).. . . . . . . . . . . . . . . . . . . . . . 7

Shannon v. United States, 512 U.S. 573 (1994).. . . . . . . . 48

Sir Speedy, Inc. v. L & P Graphics, Inc.,957 F.2d 1033 (2d Cir. 1992). . . . . . . . . . . . . . . . . 26

United States v. Adams,343 F.3d 1024 (9th Cir. 2003).. . . . . . . . . . . . . . . . 45


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United States v. Alfonso,143 F.3d 772 (2d Cir. 1998).. . . . . . . . . . . . . . . 36, 37

United States v. Alter,482 F.2d 1016 (9th Cir. 1973).. . . . . . . . . . . . . . . . 44

United States v. Altman,48 F.3d 96 (2d Cir.1995). . . . . . . . . . . . . . . . . . . 21

United States v. Antico,275 F.3d 245 (3d Cir. 2001).. . . . . . . . . . . . . 11, 14, 23

United States v. Ashdown,509 F.2d at 798 (5th Cir. 1975).. . . . . . . . . . . . . 26, 27

United States v. Bicoastal Corp.,819 F. Supp. 156 (N.D.N.Y. 1993). . . . . . . . . . . . . . . 37

United States v. Bohonus,628 F.2d 1167 (9th Cir. 1980).. . . . . . . . . . . . . . . . 19

United States v. Bortnovsky,820 F.2d 572 (2d Cir. 1987).. . . . . . . . . . . . . . . . . 60

United States v. Brechtel,997 F.2d 1108 (5th Cir. 1993).. . . . . . . . . . . . . . 33, 34

United States v. Brown,555 F.2d 336, 339-40 (2d Cir. 1977).. . . . . . . . . . . . . 21

United States v. Bronston,658 F.2d 920 (2d Cir. 1981).. . . . . . . . . . . . . . . . 6, 15

United States v. Brumley,116 F.3d 728 (5th Cir. 1997). . . . . . . . . . . 12, 13, 32, 56

United States v. Bryan,58 F.3d 933 (4th Cir. 1995). . . . . . . . . . . . . . . . . 32

United States v. Bush,522 F.2d 641 (7th Cir. 1975). . . . . . . . . . . . 4, 5, 14, 15

United States v. Castro,89 F.3d 1443 (11th Cir. 1996).. . . . . . . . . . . . . . . . 41

United States v. Cedano-Arellano,332 F.3d 568 (9th Cir. 2003). . . . . . . . . . . . . . . . . 45


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United States v. Cerone,830 F.2d 938 (8th Cir. 1987). . . . . . . . . . . . . . . . . 36

United States v. Ciambrone,601 F.2d 616, 629 (2d Cir. 1979). . . . . . . . . . . . . . . 47

United States v. Chalmers,410 F. Supp. 2d 278 (S.D.N.Y. 2006).. . . . . . . . . . . 60, 62

United States v. Cisneros,203 F.3d 333 (5th Cir. 2000). . . . . . . . . . . . . . . 26, 27

United States v. Coonan,938 F.2d 1553 (2d Cir.1991).. . . . . . . . . . . . . . . . . 17

United States v. Curry,681 F.2d 406 (5th Cir. 1982). . . . . . . . . . . . . . . . . 10

United States v. DeFiore,720 F.2d 757 (2d Cir. 1983).. . . . . . . . . . . . . . . . . 26

United States v. Derosier,501 F.3d 888 (8th Cir. 2007). . . . . . . . . . . . . . . . . 23

United States v. Dial,757 F.2d 163 (7th Cir. 1985). . . . . . . . . . . . . . . . . . 6

United States v. Dula,989 F.2d 772 (5th Cir. 1993). . . . . . . . . . . . . . . . . 27

United States v. Eisen,974 F.2d 246 (2d Cir. 1992).. . . . . . . . . . . . . . . . . 31

United States v. Elliott,363 F. Supp. 2d 439 (N.D.N.Y. 2005).. . . . . . . . . . . . . 38

United States v. Ferguson,478 F. Supp. 2d 220 (D. Conn. 2007).. . . . . . . . . . . 57, 62

United States v. Geddings,278 Fed. Appx. 281 (4th Cir. 2008), cert. denied,129 S. Ct. 435 (2008).. . . . . . . . . . . . . . . . . . 18, 19

United States v. Geddings,2006 WL 4877548 (E.D.N.C. 2006),aff'd Geddings, 278 Fed. Appx. 281 (4th Cir. 2008),cert. denied, 129 S. Ct. 435 (2008).. . . . . . . . . . . 18, 19


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United States v. Giampa,904 F. Supp. 235 (D.N.J. 1995). . . . . . . . . . . . . . . . 28

United States v. Grammatikos,633 F.2d 1013 (2d Cir. 1980). . . . . . . . . . . . . . . . . 51

United States v. Grandmaison,77 F.3d 555 (1st Cir. 1996).. . . . . . . . . . . . . . . . . 12

United States v. Grasso,173 F. Supp. 2d 353 (E.D. Pa. 2001).. . . . . . . . . . . . . 58

United States v. Gross,2007 WL 1556638 (E.D. Mich. 2007).. . . . . . . . . . . . . . 59

United States v. Hasner,340 F.3d 1261 (11th Cir. 2003). . . . . . . . . . . . . . . . 32

United States v. Hatcher,323 F.3d 666 (8th Cir. 2003). . . . . . . . . . . . . . . 52, 53

United States v. Heacock,31 F.3d 249 (5th Cir. 1994).. . . . . . . . . . . . . . . . . 31

United States v. Heatley,994 F. Supp. 483 (S.D.N.Y. 1998). . . . . . . . . . . . . . . 58

United States v. Holzer,816 F.2d 304 (7th Cir. 1987),vacated and remandedfor reconsideration in light of McNally v. United States,484 U.S. 807 (1987).. . . . . . . . . . . . . . . 4, 6, 7, 13, 15

United States v. Hooks,2005 WL 3370549 (W.D. Tenn. 2005).. . . . . . . . . . . . . . 46

United States v. Ingredient Tech. Corp.,698 F.2d 88, 96 (2d Cir. 1983). . . . . . . . . . . . . . . . 21

United States v. Jennings,487 F.3d 564 (8th Cir. 2007). . . . . . . . . . . 32, 33, 39, 52

United States v. Josephberg,418 F. Supp. 2d 297 (S.D.N.Y. 2005).. . . . . . . . . . . . . 21

United States v. Keane,522 F.2d 534 (7th Cir. 1975). . . . . . . . . . . . . . . 14, 33


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United States v. Kemp,500 F.3d 257 (3d Cir. 2007),cert. denied, 128 S. Ct. 329 (2008).. . . . . . . . . . 3, 14, 16

United States v. Kenny,462 F.2d 1205 (3d Cir. 1972). . . . . . . . . . . . . . . 58, 59

United States v Kincaid-Chauncey,556 F.3d 923 (9th Cir. 2009). . . . . . . . 2, 3, 15, 19, 23, 39

United States v. Klein,476 F.3d 111, 113 (2d Cir.),cert. denied, 128 S. Ct. 804 (2007).. . . . . . . . . . . . . 36

United States v. Knight,490 F.3d 1268 (11th Cir. 2007),cert. denied, 128 S. Ct. 547 (2007).. . . . . . . . . . . 45, 46

United States v. Lazore,90 F. Supp. 2d 202 (N.D.N.Y. 2000). . . . . . . . . . . . . . 36

United States v. Mandel,591 F.2d 1347 (4th Cir. 1979)affd in relevant part, 602 F.2d 653 (1979) (en banc).. . . 5, 10

United States v. Marcucci,299 F.3d 1156 (9th Cir. 2002).. . . . . . . . . . . . . . 45, 48

United States v. Margiotta,688 F.2d 108(2d Cir. 1981) .. . . 4,5, 10, 13, 14, 21, 22, 32, 41

United States v. Martin,195 F.3d 961 (7th Cir. 1999). . . . . . . . . . . . . . . . . 32

United States v. McDonough,56 F.3d 381 (2d Cir. 1995). . . . . . . . . . . . . . . 3, 13, 15

United States v. McElroy,910 F.2d 1016 (2d Cir. 1990). . . . . . . . . . . . . . . . . 33

United States v. McIntosh,23 F.3d 1454 (8th Cir. 1994). . . . . . . . . . . . . . . . . 28

United States v. Middlemiss,217 F.3d 112 (2d Cir. 2000).. . . . . . . . . . . . . . . 14, 23

United States v. Moody,923 F.2d 341 (5th Cir. 1991). . . . . . . . . . . . . . . . . 37


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United States v. Mulder,273 F.3d 91 (2d Cir. 2001). . . . . . . . . . . . . . . . . . 25

United States v. Musacchio,968 F.2d 782 (9th Cir. 1991). . . . . . . . . . . . . . . . . 37

United States v. Muskovsky,863 F.2d 1319 (7th Cir. 1988).. . . . . . . . . . . . . . . . 37

United States v. Nadi,996 F.2d 548 (2d Cir. 1993).. . . . . . . . . . . . . . . . . 17

United States v. Nappy,1995 WL 702363 (S.D.N.Y. 1995). . . . . . . . . . . . . . . . 54

United States v. Narvarro-Vargas,408 F.3d 1184 (9th Cir. 2005).. . . . . . . . . . . . 45, 48, 49

United States v. Natl Dairy Products Corp.,372 U.S. 29 (1963). . . . . . . . . . . . . . . . . . . . . . 17

United States v. Orenuga,430 F.3d 1158 (D.C.Cir. 2005).. . . . . . . . . . . . . . . . 39

United States v. Ozbay,2007 WL 656049 (N.D.N.Y. 2007). . . . . . . . . . . . . . . . 55

United States v. Panarella,277 F.3d 678 (3d Cir. 2002).. . . . . . 8, 13, 15, 16, 23, 32, 39

United States v. Paradies,98 F.3d 1266 (11th Cir. 1996).. . . . . . . . . . . . . . . . 12

United States v. Parker,364 F.3d 934 (8th Cir. 2004). . . . . . . . . . . . . . . . . 54

United States v. Parks,68 F.3d 860 (5th Cir. 1995).. . . . . . . . . . . . . . . . . 54

United States v. Parrett,530 F.3d 422 (6th Cir. 2008). . . . . . . . . . . . . . . . . 53

United States v. Peters,2009 WL 763384 (W.D.N.Y. 2009). . . . . . . . . . . . . . . . 51

United States v. Pharis,298 F.3d 228 (3d Cir. 2002).. . . . . . . . . . . . . . . . . 30


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United States v. Proffitt,2008 WL 2225734 (W.D. Mo. 2008).. . . . . . . . . . . . . . . 56

United States v. Porcelli,865 F.2d 1352 (2d Cir. 1989). . . . . . . . . . . . . . . . . 35

United States v. Read,658 F.2d 1225 (7th Cir. 1981).. . . . . . . . . . . . . . . . 27

United States v. Rezko,2007 WL 2904014 (N.D. Ill. 2007). . . . . . . . . . . . . . . 38

United States v. Rigas,281 F. Supp. 2d 660 (S.D.N.Y. 2003).. . . . . . . . . . . . . 51

United States v. Rosenthal,9 F.3d 1016 (2d Cir. 1993). . . . . . . . . . . . . . . . 28, 34United States v. Royer,

549 F.3d 886 (2d Cir. 2008), petition for cert. filed,(U.S. May 12, 2009) (No. 08-10357). . . . . . . . . . . . . . 56

United States v. Rybicki,354 F.3d 124 (2d Cir. 2003).. . . . 11, 12, 17, 18, 20-22, 42, 43

United States v. Sawyer,85 F.3d 713 (1st Cir. 1996).. . . . . . . . . . . . . . . 23, 41

United States v. Sawyer,239 F.3d 31 (1st Cir. 2001).. . . . . . . . . . . . . . . 23, 32

United States v. Scarpa,913 F.2d 993 (2d Cir. 1990).. . . . . . . . . . . . . . . . . 26

United States v. Sciandra,529 F. Supp. 320 (S.D.N.Y. 1982). . . . . . . . . . . . . . . 57

United States v. Scop,846 F.2d 135 (2d Cir. 1988).. . . . . . . . . . . . . . . . . 31

United States v. Sharifipour,2006 WL 1007661 (N.D.N.Y. 2006).. . . . . . . . . . . . . 25, 26

United States v. Siembida,2008 WL 4703015 (S.D.N.Y. 2008).. . . . . . . . . . . . . . . 41

United States v. Silvano,812 F.2d 754 (1st Cir. 1987). . . . . . . . . . . . . . . . . 41


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United States v. Skowronski,968 F.2d 242 (2d Cir. 1992).. . . . . . . . . . . . . . . . . 27

United States v. Stein,429 F. Supp. 2d 633 (S.D.N.Y. 2006).. . . . . . . . . . . . . 58

United States v. Tannenbaum,934 F.2d 8 (2d Cir. 1991).. . . . . . . . . . . . . . . . 22, 55

United States v. Theriault,2007 WL 4377781 (N.D.N.Y. 2007).. . . . . . . . . . . . . . . 60

United States v. Thomas,116 F.3d 606 (2d Cir. 1997).. . . . . . . . . . . . . . . 46, 47

United States v. Tomero,496 F. Supp. 2d 253 (S.D.N.Y. 2007).. . . . . . . . . . . 25, 26

United States v. Torres,901 F.2d 205 (2d Cir. 1990).. . . . . . . . . . . . . . . . . 60

United States v. Vampire Nation,451 F.3d 189 (3d Cir. 2006).. . . . . . . . . . . . . . . . . 52

United States v. Viertel,2002 WL 1560805 (S.D.N.Y. 2002).. . . . . . . . . . . . . . . 20

United States v. Von Barta,635 F.2d 999 (2d Cir. 1980).. . . . . . . . . . . . . . 6, 10, 38

United States v. Wallach,935 F.2d 445 (2d Cir. 1991).. . . . . . . . . . . . . . . . . 39

United States v. Warner,498 F.3d 666 (7th Cir. 2007),cert. denied, 128 S. Ct. 1329 (2008). . . . . . . . . . . . . 23

United States v. Washington,705 F.2d 489 (D.C. Cir. 1983).. . . . . . . . . . . . . . . . 47

United States v. White,2004 WL 2612017 (E.D.Pa. 2004),affd after trial, Kemp, 500 F.3d 257 (3d Cir. 2007). . . . . 14

United States v. Weiss,491 F.2d 460 (2d Cir. 1974). . . . . . . . . . . . . . . . . 37


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United States v Weyhrauch,548 F.3d 1237 (9th Cir. 2008),cert. denied,77 U.S.L.W. 3562 (2009).. . 2, 12, 13, 14, 19, 32, 35, 40, 41, 43

United States v. Woodward,149 F.3d 46 (1st Cir. 1998).. . . . . . . . . . 3, 13, 15, 23, 39

United States v. Wright,1990 WL 78035 (N.D. Ill. 1990). . . . . . . . . . . . . . . . 30

United States v. Yashir,166 F.3d 873 (7th Cir. 1999). . . . . . . . . . . . . . . . . 38

United States v. Yeaman,987 F. Supp. 373 (E.D. Pa. 1997). . . . . . . . . . . . . . . 27

United States v. Zedner,555 F.3d 68 (2d Cir. 2008),

petition for cert. filed,(U.S. Apr. 28, 2009) (No. 08-10089).. . . . . . . . . . . . . 18

Vasquez v. Hillery,474 U.S. 254 (1986).. . . . . . . . . . . . . . . . . 47, 48, 50

Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,455 U.S. 489. . . . . . . . . . . . . . . . . . . . . . . . . 17

FEDERAL STATUTES, RULES, AND OTHER AUTHORITIES

U.S. Const. Art. IV, 4. . . . . . . . . . . . . . . . . . . 41

18 U.S.C. 1341, 1343, 1346.. . . . . . . . . . . . . . passimPub. L. No. 100-690, Title VII, 7603(a), 102 Stat. 4508 (Nov. 18,1988).. . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 11

Fed. R. Crim. P. 32.2(b)(1).. . . . . . . . . . . . . . . . . 52

134 Cong. Rec. H11108-01, 1988 WL 182261 (Oct. 21, 1988). 10, 41

134 Cong. Rec. S17360-02, 1988 WL 182529 (Nov. 10, 1988). . . 11

Hearing on H.R. 3089 and H.R. 3050, Fraud Amendment Acts of 1987,Serial 145, H521-87 (May 12, 1988). . . . . . . . . . . . . . 10

S.E.C. Rule 206-(4)-3, 17 C.F.R. 275.206 (4)-3(a)(2).. . . 34,53


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Association of the Bar of the City of New York, Conflict ofInterest and Federal Service 3 (1960) . . . . . . . . . 5, 7, 18

Committee on Standards of Official Conduct, 102d Cong., 2d Sess.,Ethics Manual for Members, Officers, and Employees of the UnitedStates House of Representatives, Ch. 3 at 3 (1992). . . . . . . 5

1A Kevin F. OMalley et al., Federal Jury Practice & Instructions 27.11(Official Act Was Lawful - No Defense) (6th ed. 2008).39


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Introduction and Summary

This Memorandum is submitted as an omnibus response in

opposition to six motions filed by defendant: three motions to

dismiss the Indictment; two motions to strike portions of the

Indictment; and a motion to obtain a bill of particulars. The

Indictment charges defendant, in eight counts, with honest services

mail and wire fraud, in violation of 18 U.S.C. 1341, 1343, 1346.

The charges are based on more than $3 million in payments to

defendant, a public official, from private persons and entities;

his failure to disclose material conflicts of interest and material

information in connection with those payments, including his

failure to perform legitimate work for those payments; and related

official actions defendant took benefitting private interests. The

Indictment alleges that defendant, a State Senator and Senate

Majority Leader, (a) contact[ed] for personal compensation and

enrichment, and (b) enter[ed] and attempt[ed] to enter into direct

and indirect financial relationships with, persons or entities who

were pursuing interests before the Legislature or State agencies,

conceal[ed], disguis[ed], and fail[ed] to disclose the existence

and nature of such compensated contacts and financial

relationships, and the resulting conflicts of interest, Indictment

18, knowing and believing that his reasonably perceived ability

to influence official action would, at least in part, motivate

those he contacted to enter into financial relationships beneficial

to his personal financial interests, id.at 19, did not perform


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legitimate work commensurate with the payments, e.g. id. at 44,

and took discretionary official action on legislative, funding,

contract, and regulatory issues benefitting the individuals and

entities behind those financial interests. Id. at 34, 59. The

Indictments sixty-six paragraphs detail the nature of the

financial relationships and contacts, and resulting conflicts of

interest, as well as efforts to conceal, disguise, and fail to

disclose pertinent information.

Defendant contends the Indictment should be dismissed because

(a) 1346 is unconstitutionally vague, (b) it fails to charge a

crime, (c) it violates federalism principles, and (d) the courts

pre-charge to the grand jury was unconstitutional. Defendant also

seeks to (e) strike the forfeiture allegation, (f) strike

surplusage, and (g) obtain a bill of particulars. None of

defendants motions have any merit, and they should all be denied.

I. Honest Services Mail and Wire Fraud Encompasses Failure to

Disclose A Material Conflict of Interest or Other Material

Information.

The courts have recognized two principal theories of honest

services fraud in cases involving public officials: [1] fraud based

on a public officials acceptance of a bribe and [2] fraud based on

a public officials failure to disclose a material conflict of

interest. United States v Kincaid-Chauncey, 556 F.3d 923, 942

(9th Cir. 2009) (emphasis added); see United States v Weyhrauch,

548 F.3d 1237, 1247 (9th Cir. 2008) (pre-McNally cases recognized


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Apparently for tactical reasons, defendant never squarely1

addresses conflict of interest honest services case law. Thisomission is puzzling because, in addition to the plain language ofthe Indictment alleging that defendant failed to disclose conflictsof interest and related information, Indictment 18, the United

States Attorney made clear this basis for prosecution, mostrecently in a March 2, 2009 letter to Mr. Lowell (Attachment A).Given the fact that the government brought United States v.Kincaid-Chauncey, 556 F.3d 923 (9th Cir. 2009) to defendantsattention months ago, he should not be allowed to use a reply briefto raise arguments he could, and should, have made on May 1, 2009when the government would have had a fair opportunity to respond.

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two core categories of conduct by public officials . . . sufficient

to support an honest services conviction: (1) taking a bribe or

otherwise being paid for a decision while purporting to be

exercising independent discretion and (2) nondisclosure of material

information) (emphasis added), cert. denied, 77 U.S.L.W. 3562

(2009); United States v. Kemp, 500 F.3d 257, 279 (3d Cir. 2007)

(same), cert. denied, 128 S. Ct. 1329 (2008); United States v.

Woodward, 149 F.3d 46, 57 (1st Cir. 1998) (same).

The Indictment here charges the second of the two core

categories of honest services fraud: failure to disclose material

conflicts of interest and related material information. See1

United States v. McDonough, 56 F.3d 381, 391 (2d Cir. 1995)

(Without disclosing his conflict of interest defendant

participated in government decisions on insurance matters and

defrauded Rensselaer County citizens and officials by means of

nondisclosure and concealment of information about the kickback

scheme that he had a duty to disclose). Although defendant claims


17/76

-4-

that he had no notice that his conduct was prohibited, the

enactment of 1346 (in response to McNally v. United States, 483

U.S. 350 (1987)), and 1346s application to public officials who

fail to disclose material conflicts of interest and other material

information is the result of the unremarkable application of well-

settled legal principles to public officials in their capacities as

fiduciaries.

A. Pre-McNally Case Law Prohibited, Under the Mail Fraud

Statute, Failure to Disclose Material Conflicts of

Interest or Other Material Information.

Prior to the passage of 1346 in 1988, the lower federal

courts had ruled that (1) a public official owes a fiduciary duty

to the citizenry, see, e.g., United States v. Margiotta, 688 F.2d

108, 124 (2d Cir. 1982) ([I]ndividuals who in reality or effect

are the government owe a fiduciary duty to the citizenry), United

States v. Holzer, 816 F.2d 304, 307 (7th Cir. 1987) (A public

official is a fiduciary toward the public), vacated and remanded

for reconsideration in light of McNally v. United States, 484 U.S.

807 (1987), (2) a public official has an affirmative duty to

disclose material information and give notice of conflicts of

interest, see Margiotta, 688 F.2d at 128 (affirmative duty to

disclose material information or give notice of his conflict of

interest due to defendant having undertaken basic functions of

government); United States v. Bush, 522 F.2d 641, 651-52 & n. 11

(7th Cir. 1975) (public official, by virtue of his office, had duty


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The phrase conflict of interest refers to two interests:2

one is the interest of the government official (and of the public)in the proper administration of his office; the other is theofficials interest in his private economic affairs. A conflict ofinterest exists whenever these two interests clash, or appear toclash. Association of the Bar of the City of New York, Conflictof Interest and Federal Service 3 (1960) (ABCNY Conflict ofInterest Report); Hayes Intl. Corp. v. McLucas, 509 F.2d 247, 260(5th Cir. 1975) (citing ABCNY Conflict of Interest Report); BlacksLaw Dictionary 299 (6th ed. 1990) (defining conflict of interest as

refer[ing] to a clash between public interest and the privatepecuniary interest of the [public official] concerned); see alsoCommittee on Standards of Official Conduct, 102d Cong., 2d Sess.,Ethics Manual for Members, Officers, and Employees of the UnitedStates House of Representatives, Ch. 3 at 3 (1992), available atwww.house.gov/Ethics/Ethicforward.html (term conflict of interestdenotes a situation in which an officials conduct of his office

-5-

to disclose and not conceal facts known to him which he had reason

to believe were material), and (3) the term scheme to defraud as

used in the mail fraud statute, includes a scheme in which a public

official would breach his duty of disclosure. Bush, 522 F.2d at

652 n. 12. Such schemes were actionable, even though they did not

involve the deprivation of money or property, because they deprived

citizens of the intangible right to honest services of the public

official. Margiotta, 688 F.2d at 121 (honest and faithful

participation in governmental affairs); United States v. Mandel,

591 F.2d 1347, 1362 (4th Cir. 1979) (honest, faithful and

disinterested services), affd in relevant part, 602 F.2d 653

(1979) (en banc); Bush, 522 F.2d at 646 (loyal and faithful

services).

These holdings, applying the mail fraud statute to a public

officials failure to disclose material conflicts of interest or2
http://www.house.gov/Ethics/Ethicforward.htmlhttp://www.house.gov/Ethics/Ethicforward.html


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conflicts with his private economic affairs; ultimate concern isrisk of impairment of impartial judgment, a risk which ariseswhenever there is temptation to serve personal interests)(internal citations and footnotes omitted).

In the employer-employee context, the Second Circuit reversed3a district courts dismissal of an indictment where an employeebreached his fiduciary duty, and there was a violation of theemployees duty to disclose material information to his employer.United States v. Von Barta, 635 F.2d 999, 1005-07 (2d Cir. 1980);see also United States v. Bronston, 658 F.2d 920, 927-28 (2d Cir.1981) (lawyer, in disregard of fiduciary duty to firms client,

-6-

other material information, were based on the well-settled

principle that fraud includes a fiduciarys concealment of such

information:

Fraud in the common law sense of deceit is committed bydeliberately misleading another by words, by acts, or, insome instances-notably where there is a fiduciaryrelationship, which creates a duty to disclose allmaterial facts-by silence. See Prosser and Keeton on theLaw of Torts 105-06 (5th ed. 1984).

United States v. Dial, 757 F.2d 163, 168 (7th Cir. 1985).

As Judge Posner explained in the context of a case involving

a public official:

Fraud in its elementary common law sense of deceit andthis is one of the meanings that fraud bears in the [mailfraud] statute, see United States v. Dial, 757 F.2d 163,168 (7th Cir.1985) includes the deliberate concealmentof material information in a setting of fiduciaryobligation. A public official is a fiduciary toward thepublic, including, in the case of a judge, the litigantswho appear before him, and if he deliberately concealsmaterial information from them he is guilty of fraud.When a judge is busily soliciting loans from counsel toone party, and not telling the opposing counsel (letalone the public), he is concealing material informationin violation of his fiduciary obligations.

Holzer, 816 F.2d at 307.3


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which was seeking to obtain franchise, concealed and failed todisclose that he was advising and promoting interests of anotherclient in obtaining same franchise, and thus was guilty of mailfraud).

-7-

Regulation of conflicts of interest is important because it is

in essence derived, or secondary one remove away from the

ultimate misconduct feared. The bribe is forbidden because it

subverts the officials judgment; the gift is forbidden because it

may have this effect, and because it looks to others as though it

does have this effect. ABCNY Conflict of Interest Report at 19-

20; cf. SEC v. Capital Gains Research Bureau, 375 U.S. 180, 196

(1963) (disclosure of conflict of interest required where private

motivations of adviser overlap with interests of investor, so

investor can evaluate whether an adviser is serving two masters

or only one, especially . . . if one of the masters happens to be

economic self-interest).

These reasons for regulating conflicts of interest have not

changed, and the Third Circuit, in a post-McNally case explained

why conflicts of interest must be disclosed:

Were it easy to detect and prosecute public officials forbribery, the need for public officials to discloseconflicts of interest would be greatly reduced. . . .One reason why federal and state law mandates disclosureof conflicts of interest, however, is that it is oftendifficult or impossible to know for sure whether a publicofficial has acted on a conflict of interest. Cf. Holzer,816 F.2d at 308 (How can anyone prove how a judge wouldhave ruled if he had not been bribed?). The onlydifference between a public official who accepts a bribeand a public official who receives payments while takingdiscretionary action that benefits that payor, as Loeper


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[a state senator at the time] did in this case, is theexistence of a quid pro quo whereby the public officialand the payor agree that the discretionary action takenby the public official is in exchange for payment.Recognizing the practical difficulties in proving theexistence of such a quid pro quo, disclosure laws permit

the public to judge for itself whether an official hasacted on a conflict of interest.

United States v. Panarella, 277 F.3d 678, 697 (3d Cir. 2002).

B. McNally v. United States

In 1987, in McNally v. United States, 483 U.S. 350 (1987) the

Supreme Court decided that as a matter of Congressional intent, the

mail fraud statute did not protect the intangible right of

citizens to good government, but was limited in scope to the

protection of property rights. Id. at 360. In McNally, an

insurance agency which earned commissions for obtaining workers

compensation insurance coverage for Kentucky was required, as a

condition to continuing as Kentuckys insurance agent, to share its

commissions with a public official and two others through a company

they jointly controlled. Id. at 352-53. The gist of the offense

was that the public official did not disclose [his ownership]

interest to persons in state government whose actions or

deliberations could have been affected by that disclosure. Id. at

355. The Court assume[d] that requiring the insurance agency to

share commissions did not violate state law and that it was not

illegal under state law for [the public official or the others] to

own one of the agencies sharing in the commissions and hence to

profit from the arrangement, whether or not they disclosed it to


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18 U.S.C. 1346 provides: For the purposes of this chapter4

[63], the term scheme or artifice to defraud includes a scheme orartifice to deprive another of the intangible right of honestservices.

-9-

others in the state government. Id. at 361 n.9. The Court stated:

it was not alleged that the mail fraud statute would havebeen violated had [the public official and the other]reported to state officials the fact of their financial

gain. The violation asserted is the failure to disclose

their financial interest, even if state law did not

require it, to other persons in the state government

whose actions could have been affected by the disclosure.

It was in this way that the indictment charged that thepeople of Kentucky had been deprived of their right tohave the Commonwealths affairs conducted honestly.

Id. (emphasis added).

After reversing the convictions because the mail fraud statute

was limited to the protection of property rights, and did not

protect intangible rights of the citizens, the Court remarked, If

Congress desires to go further, it must speak more clearly than it

has. Id. at 360.

C. The Enactment of 18 U.S.C. 1346

Congress spoke more clearly the following year when it enacted

1346 as part of the Anti-Drug Abuse Act of 1988. Pub. L. No.

100-690, Title VII, 7603(a), 102 Stat. 4508 (Nov. 18, 1988).4

When the House added the text that became 7603 to the Anti-Drug

Abuse Act of 1988, Representative Conyers, Chair of the

Subcommittee on Criminal Justice, explained that the purpose of

this worthwhile provision was to overturn McNally and restore


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Although Representative Conyers ultimately did not vote in5

favor of the Anti-Drug Abuse Act because it included death penaltyand mandatory minimum provisions, he favored the amendment tooverrule McNally: While I am going to vote against the bill, thereare, as I indicated earlier, some worthwhile provisions in it.134 Cong Rec. H11108-01, 1988 WL 182261 (daily ed. Oct. 21, 1988)

(statement of Rep. Conyers).

In his remarks, Representative Conyers also referenced a May6

12, 1988 hearing, during which the prior case law, the effect ofthe McNally decision, and the policy implications of overruling itwere discussed at length. Hearing on H.R. 3089 and H.R. 3050,Fraud Amendment Acts of 1987, Serial 145, H521-87 (May 12, 1988).

-10-

pre-McNally case law:5

Prior to the McNally decision, every Federalappellate court that had considered the scope of the mailand wire fraud provisions held that those provisionsprotect the right of the public to the honest services of

public officials and others responsible for the conductof public or public affairs, see, e.g., United States v.Margiotta, 688 F.2d 108, 121-22 (2d Cir. 1981), cert.denied, 461 U.S. 913 (1983); United States v. Mandel, 591F.2d 1347, 1358-64 (4th Cir. 1979); cert. denied, 455U.S. 961 (1983); the right of a member of an organizationto the honest services of the leaders of thatorganization, United States v. Curry, 681 F.2d 406, 411(5th Cir. 1982); and the right of employers to the honestservice of their employees, United States v. Von Barta,635 F.2d 999, 1006-07 (2d Cir. 1980), cert. denied, 450U.S. 998 (1981).

This amendment restores the mail fraud provision towhere that provision was before the McNally decision. Theamendment also applies to the wire fraud provision, andprecludes the McNally result with regard to thatprovision. . . This amendment is intended merely tooverturn the McNally decision. No other change in the lawis intended.

134 Cong Rec. H11108-01, 1988 WL 182261 (Oct. 21, 1988).6

The Senate voted to pass the bill with the House amendments on

October 22, 1988, and on November 10, 1988, Senator Biden submitted


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a section-by-section analysis of the criminal law provisions that

are contained in the drug bill for the Presidents consideration

which he believe[d] would be helpful to those who wish to know

the intent of the drafters of this legislation. 134 Cong. Rec.

S17360-02, 1988 WL 182529 (Nov. 10, 1988). The analysis of Section

7603 explains:

7603. Intangible Rights for Mail and Wire Fraud-Thissection overturns the decision in McNally v. UnitedStates in which the Supreme Court held that the mail andwire fraud statutes protect property but not intangiblerights. Under the amendment, those statutes will protectany persons intangible right to the honest services of

another, including the right of the public to the honestservices of public officials. The intent is to reinstate

all of the pre-McNally caselaw pertaining to the mail and

wire fraud statutes without change.

Id. (emphasis added). The President signed the bill eight days

later. Pub. L. No. 100-690, Title VII, 7603(a), 102 Stat. 4508

(Nov. 18, 1988).

D. Following McNally,

Failure to Disclose a MaterialConflict of Interest Or Other Material Information

Remains One of the Two Core Categories of Honest

Services Fraud.

Since 1346 was enacted, every Court of Appeals to consider

the issue has concluded that Congress intended for 1346 to

overrule McNally. See United States v. Rybicki, 354 F.3d 124, 134,

136 (2d Cir. 2003) (in banc) ( 1346 designed to overrule McNally

and reinstated intangible rights doctrine); United States v.

Antico, 275 F.3d 245, 261 n. 16 (3d Cir. 2001) ( 1346 enacted to

overturn McNally and restore the evolution of mail and wire fraud


25/76

Three dissenting judges in United States v. Brumley, 116 F.3d7

728 (5th Cir. 1997) (en banc) did not believe that 1346 wasintended to overrule McNally, contending instead that another in 1346 did not include the citizens of a state, id. at 737, andthat Representative Conyers remarks and Senator Bidens section-by-section analysis to the contrary were entitled to little weight.Id. at 743 & nns. 4 & 5. Their view has not been adopted by anycourt.

-12-

to its pre-McNally status); United States v. Paradies, 98 F.3d

1266, 1283 & n. 32 (11th Cir. 1996) ( 1346 intended to overrule

McNally); United States v. Grandmaison, 77 F.3d 555, 566 (1st Cir.

1996) (same); see also Weyhrauch, 548 F.3d at 1246 ( 1346 intended

to reinstate pre-McNally case law).7

As for what Congress intended when it recriminalized honest

services fraud, the Second Circuit, in the private sector honest

services fraud case Rybicki, reviewed the principal pre-McNally

decisions involving or purportedly involving honest services

fraud in the private sector. Rybicki, 354 F.3d at 138. Although

the Second Circuit did not consider [t]he meaning of the phrase

scheme or artifice to defraud with respect to public corruption

cases because it was not an issue before the court, it noted that

it had been given no reason to doubt that it is susceptible to a

similar mode of analysis. Id. at 138-39.

Applying the Rybicki approach here (reviewing pre-McNally

honest services fraud decisions involving public officials), it is

clear that the Indictment falls squarely within the heartland of

one of the two core categories of public official honest services


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fraud cases: nondisclosure of material conflicts of interest and

related material information. See Weyhrauch, 548 F.3d at 1247

(both pre- and post-McNally public honest services fraud cases

have generally fallen into one of those two categories).

Indeed, cases decided both before and after McNally provide

numerous illustrations of public officials failing to disclose

financial arrangements which created conflicts of interest thereby

depriving citizens of the officials honest services. See

Panarella, 277 F.3d at 681 ($330,000 paid to state senate majority

leader for consulting services by tax collection business owner

seeking business with local and state governments and opposing

pending tax legislation); Woodward, 149 F.3d at 51-53 ($9,000 in

meals, rounds of golf, and other entertainment given to state

legislator and chair of insurance committee by insurance company

lobbyist); Brumley, 116 F.3d at 730-31 (loans to Regional Associate

Director of Texas Workers Compensation Commission from lawyers

representing claimants before Commission; no claimant was awarded

more money); McDonough, 56 F.3d at 384-85 (payment to county

democratic chairmans wifes insurance agency of 50% of commissions

on town and county insurance business); Holzer, 816 F.2d at 305-07

(loans to state court judge by lawyers who had cases before judge

and receivers who were appointed by judge; no rulings were

influenced by loans); Margiotta, 688 F.2d at 113 (50% of

commissions on town and county insurance business to brokers


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designated by Republican party town and county chairman); United

States v. White, 2004 WL 2612017, at *7 (E.D.Pa. 2004) (loans to

city Treasurer by entity seeking business from Treasurer obvious

conflict of interest); affd after trial, Kemp, 500 F.3d 257; see

also Weyhrauch, 548 F.3d at 1246 (undisclosed negotiations for

future legal work to be performed by legislator for oil company

while legislator voted on and took other action regarding

legislation of interest to oil company); Antico, 275 F.3d at 249,

253-54 (Philadelphia Department of Licenses and Inspections

official considered applications and permits submitted by a

business he created for his ex-wife in lieu of child support

payments); United States v. Middlemiss, 217 F.3d 112, 115-16 (2d

Cir. 2000) (ownership interest of port authority public affairs

officer in cafeteria in port authority); Bush, 522 F.2d at 643

(ownership interest of mayors press secretary in advertising

agency which obtained city contract for airport advertising);

United States v. Keane, 522 F.2d 534, 539-44 (7th Cir. 1975)

(financial interest of city councilman in properties affected by

city council proceedings in which he participated).

Courts, including the Second Circuit, have held that a public

official has an affirmative duty to disclose material conflicts of

interest or other material information. See Margiotta, 688 F.2d at

128 (affirmative duty to disclose material information or give

notice of his conflict of interest due to defendant having


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-15-

undertaken basic functions of government); see also Kincaid-

Chauncey, 556 F.3d at 945 (A public officials duty to disclose

material information need not be expressly imposed by statute or

code because a public official inherently owes a fiduciary duty to

the public to make governmental decisions in the publics best

interest) (quoting district court jury instructions); Panarella,

277 F.3d at 694 (A public official has an affirmative duty to

disclose material information to the public employer) (quoting

Woodward, 149 F.3d at 57, 62 (1st Cir. 2002)); Bush, 522 F.2d at

651-52 & n. 11 (public official, by virtue of his office, had duty

to disclose and not conceal facts known to him which he had reason

to believe were material).

This duty may be breached by misrepresentation, omission, or

concealment. See McDonough, 56 F.3d at 391 (in failing to disclose

conflict of interest, defendant defrauded Rensselaer County

citizens and officials by means of nondisclosure and concealment of

information about the kickback scheme that he had a duty to

disclose;); see also Panarella, 277 F.3d at 695 (fraud includes

the deliberate concealment of material information in a setting of

fiduciary obligation) (quoting Holzer, 816 F.2d at 307); Bronston,

658 F.2d at 928 (element of concealment of material fact

established).

When a material conflict of interest exists, a public official

may not take discretionary action directly benefitting the


29/76

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individual or organization behind that financial interest. Kemp,

500 F.3d at 283 (honest services fraud encompasses a situation

where a public official conceals a financial interest in violation

of state criminal law while taking discretionary action that the

official knows will directly benefit the individual or organization

behind that financial interest); Panarella, 277 F.3d at 694 (a

public official who conceals a financial interest in violation of

state criminal law while taking discretionary action that the

official knows will directly benefit that interest commits honest

services fraud).

II. Argument

A. The Honest Services Statute is Not Unconstitutionally Vague as

Applied to This Case Because Ordinary People Can Understand

That Failure to Disclose Material Conflicts of Interest or

Related Material Information is Prohibited.

Defendant claims that the honest services fraud statute is

void for vagueness because he did not have notice of what is a

crime and what is not. Memorandum in Support of Motion to Dismiss

the Indictment (Dismissal Memorandum) at 1. His argument fails

because ordinary people can understand that failure to disclose

material conflicts of interest or related material information is

prohibited by Section 1346.

As generally stated, the void-for-vagueness doctrine

requires that a penal statute define the criminal offense with

sufficient definiteness that ordinary people can understand what

conduct is prohibited and in a manner that does not encourage


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arbitrary and discriminatory enforcement. Rybicki, 354 F.3d at

129 (quoting Kolender v. Lawson, 461 U.S. 352, 357 (1983)). In

the absence of first amendment considerations, vagueness challenges

must be evaluated based on the particular application of the

statute and not on the ground that the statute may conceivably be

applied unconstitutionally to others in situations not before the

Court. Rybicki, 354 F.3d at 129-130 (quoting United States v.

Coonan, 938 F.2d 1553, 1562 (2d Cir.1991)). In other words, the

statute must be scrutinized in light of the specific facts of the

case at hand. United States v. Nadi, 996 F.2d 548, 550 (2d Cir.

1993).

The existence of a scienter element to the offense narrows the

reach of the statute and therefore decreases the ambiguity of a

criminal offense. See Hill v. Colorado, 530 U.S. 703, 732 (2000);

Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455

U.S. 489, 499 ([A] scienter requirement may mitigate a laws

vagueness . . . .). Moreover, in order to protect Congress power

to regulate criminal activity and the courts power to interpret

the law, a statute will not be found void merely because it is

difficult to determine whether marginal offenses are covered by the

statutes language. See United States v. Nat'l. Dairy Products

Corp., 372 U.S. 29, 32 (1963).

As an initial matter, defendant seems to suggest that Section

1346 is facially vague, Dismissal Memorandum at 9-19; but see id.


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[C]itation to unpublished dispositions in the Fourth Circuit8

is disfavored but permissible. Muntaqim v. Coombe, 366 F.3d102, 112 n. 12 (2d Cir. 2004).

-18-

at 11-12 n. 3 (stating that this Court need not reach such issue),

but the Second Circuit in banc has stated that Section 1346 is not

unconstitutional on its face, see Rybicki, 354 F.3d at 144 (We

conclude that the statute [ 1346] is not unconstitutional on its

face), and this Court is bound by that holding. See, e.g., United

States v. Zedner, 555 F.3d 68, 82 n. 3 (2d Cir. 2008) (Second

Circuit panel bound by the decisions of prior panels until such

time as they are overruled by an en banc panel of our Court or by

the Supreme Court) (citations and quotations omitted); petition

for cert. filed, (U.S. Apr. 28, 2009)(No. 08-10089).

Section 1346 is also not void for vagueness as applied to the

facts of this case. Here, defendant failed to disclose material

conflicts of interest and related material information, and an

ordinary person can understand that (1) it is wrong for a

fiduciary, including a public official, to conceal or fail to make

such disclosures, see United States v. Geddings, 278 Fed. Appx.

281, 282, 287 n. 8 (4th Cir. 2008) (section 1346 provides notice8

of wrongfulness of conflicts of interest), cert. denied, 129 S. Ct.

435 (2008); see also ACBNY Conflict of Interest Report at 5-6 (It

is interesting, and significant, that contemporary America has

shown itself keenly aware of the conflict of interest problem),

and (2) 1346 prohibits schemes to do so. In fact, such schemes


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-19-

are so obviously wrong that failure to disclose material conflicts

of interest or other material information has long been recognized

as one of the two principal theories or core categories of

honest services fraud. Kincaid-Chauncey, 556 F.3d at 942;

Weyhrauch, 548 F.3d at 1247.

As a result, similar void-for-vagueness-as-applied challenges

to Section 1346 have been rejected. See United States v. Geddings,

2006 WL 4877548, at *3 (E.D.N.C. 2006) (rejecting public officials

argument that 1346 is void for vagueness as applied because the

cases demonstrate that failing to disclose a conflict of interest

can serve as part of a scheme or artifice to deprive another of the

intangible right to honest services), aff'd Geddings, 278 Fed.

Appx. at 282, 287 n.8 (rejecting public officials void-for-

vagueness-as-applied challenge to 1341 and 1346 where conviction

based on his failure to disclose a conflict of interest finding

that the language of the statute provides notice of the

wrongfulness of Geddings conduct and adequately prevents arbitrary

enforcement); United States v. Bohonus, 628 F.2d 1167, 1169-70,

1173 (9th Cir. 1980) (rejecting contention, in private sector

honest services fraud case where employee induced insurance agent

to pay him portion of agent's commissions but failed to disclose to

employer both his receipt of these payments and his concomitant

conflict of interest, that statute was void for vagueness as

applied, explaining that [t]he numerous decisions which have


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applied 1341 to employee disloyalty and to the deprivation of

intangible rights in general afforded the defendant reasonable

notice that his conduct might well fall within the proscriptions of

the mail fraud statute. This court has held that it is not . . .

unfair to require that one who deliberately goes perilously close

to an area of proscribed conduct shall take the risk that he may

cross the line.). Section 1346 is therefore not void for

vagueness as applied to this case.

Despite the fact that defendants conduct falls squarely

within the definition of one of the principal theories or core

categories of honest services and that vagueness challenges must

be evaluated on an as-applied basis, Rybicki, 354 F.3d at 129-

30, defendant offers a lengthy discussion of the statutes

theoretical boundaries including its application to other

hypothetical situations, Dismissal Memorandum at 9-19. But the

facts of this case, which limit defendants challenge, involve

defendants failure to disclose conflicts of interest and related

information. Accordingly, defendants musings about whether

marginal offenses might be covered by 1346 are inapplicable to

his clearly prohibited activities.

Similarly, whether or not this precise fact pattern has been

the subject of a published opinion is immaterial. See United

States v. Viertel, 2002 WL 1560805, at *8 (S.D.N.Y. 2002) (noting,

in rejecting as applied void-for-vagueness challenge to 1346,


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that it is immaterial [to a void-for-vagueness analysis] that

there is no litigated fact pattern precisely on point) (quoting

United States v. Ingredient Tech. Corp., 698 F.2d 88, 96 (2d Cir.

1983)); see also United States v. Josephberg, 418 F.Supp.2d 297,

301 (S.D.N.Y. 2005) ([T]he fact that there is no litigated fact

pattern precisely on point may constitute a tribute to the cupidity

and ingenuity of the malefactors involved but hardly provides an

escape from the penal sanctions. . . .) (quoting United States v.

Brown, 555 F.2d 336, 339-40 (2d Cir. 1977)). As Judge Raggi

explained in her concurring opinion in Rybicki:

Retaining flexibility to recognize that other schemes,not precisely fitting within the models identified by themajority today, could constitute honest services frauddoes not establish the vagueness of 1346. Rather, itacknowledges the reality of fraud, a crime ofextraordinary variety, limited only by human imagination.See, e.g., United States v. Altman, 48 F.3d 96, 102 (2dCir.1995) (holding that fraud needs no definition: it isas old as falsehood and as versable as human ingenuity(internal quotation marks and citations omitted)).

354 F.3d at 155 (Raggi, J. concurring).

It is also immaterial that there is disagreement among the

circuits regarding whether materiality, as opposed to reasonably

foreseeable harm, must be proven, and whether a violation of state

criminal law must be proven. This Circuit has resolved both

questions: it has adopted the materiality test, Rybicki, 354 F.3d

at 145-46, and does not require a violation of state law.

Margiotta, 688 F.2d at 124. Moreover, divergence in panel or

circuit views of a statute, criminal or otherwise, is inherent


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Defendant repeatedly cites to a twenty-five-year-old law9

review article written by the United States Attorney when he was athird-year law student. See March 2, 2009 Letter from then ActingUnited States Attorney Andrew T. Baxter to Mr. Lowell (AttachmentA). To the extent that the article questions whether Congressintended for the mail fraud statute to protect the intangible rightto honest services, that question was answered by the enactment of18 U.S.C. 1346, five years after the article was published.

-22-

and common in our multi-circuit system. Disparity does not

establish vagueness. Rybicki, 354 F.3d at 143; see also United

States v. Tannenbaum, 934 F.2d 8, 12 (2d Cir. 1991) (We reject

Tannenbaums attempt to elevate what has become a split in the

circuits, a not uncommon occurrence, into an argument that 5313

must therefore violate the fair warning requirement of due

process.)

Finally, the scienter requirement for honest services fraud,

which requires proof of intent to deprive another of the

intangible right of honest services, Rybicki, 354 F.3d at 145,

significantly decreases any ambiguity and further defeats

defendants vagueness claim. See Margiotta, 688 F.2d at 129 (The

broad language of the statute, intended by Congress to be

sufficiently flexible to cover the wide range of fraudulent schemes

mankind is capable of devising, is not unconstitutionally vague

because 1341 contains the requirement that the defendant must

have acted willfully and with a specific intent to defraud.)9

In sum, defendant cannot establish that he could not have

known that the conduct underlying [his] conviction[] could be


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Defendant also contends that the use of the phrase10

disinterested decision making renders the Indictment vague,Dismissal Memorandum at 19-20, but that phrase, which is used bythe courts to refer to decisions made free of conflicts ofinterest, Kincaid, 556 F.3d at 944; Panarella, 277 F.3d at 694-95;Antico, 275 F.3d at 263; Middlemiss, 217 F.3d at 120; Woodward, 149F.3d at 55, 62; United States v. Sawyer, 85 F.3d 713, 724 (1st Cir.1996), is entirely proper. Indeed, the phrase is included in theGovernments Proposed Jury Instructions (filed today), and its useis not surplusage. See United States v. Derosier, 501 F.3d 888,897-98 (8th Cir. 2007) (rejecting surplusage argument where inreckless disregard of the interests of had been approved in jury

instruction as acceptable specification of term intent todefraud). Defendant makes a similar complaint about the termfull disclosure of the potential motivation behind official acts,Dismissal Memorandum at 19-20, but it too is used by courts,Kincaid, 556 F.3d at 944-45; Panarella, 277 F.3d at 695; Antico,275 F.3d at 263; Woodward, 149 F.3d at 62; Sawyer, 85 F.3d at 724,is included in the proposed jury instructions, and is proper here.

-23-

considered depriv[ing] another of the intangible right of honest

services. United States v. Warner, 498 F.3d 666, 697 (7th Cir.

2007), cert. denied, 128 S. Ct. 1329 (2008); see United States v.

Sawyer, 239 F.3d 31, 43 n. 13 (1st Cir. 2001) (summarily rejecting

similar argument and stating defendant also claims that his

prosecution offended due process by not giving him sufficient

notice of what conduct is proscribed under federal law. As we have

already noted, Congress enacted 1346 in 1988 to prohibit schemes

to deprive the public of their public officials honest services.

Accordingly, Sawyer had sufficient notice that his conduct could be

prosecuted as a federal crime.)10


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The relevant date for the statute of limitations is June 30,11

2003 because defendant executed statute of limitations waivers fromJune 30, 2008 forward.

-24-

B. The Allegations of the Indictment are Relevant and Sufficient

to Charge Defendant With Honest Services Mail and Wire Fraud.

Defendant contends that the allegations of the Indictment do

not amount to a crime, but these arguments are based on mistaken

views of the law. First, based on the misapprehension that the

statute of limitations also operates as a rule of evidence to bar

relevant evidence that predates the limitations period, defendant

asks the Court to strike relevant allegations in the Indictment and

to dismiss the Indictment. Second, despite the fact a state law

violation is not an element of honest services fraud, defendant

takes the position that because the Indictment contains allegations

concerning state law (which are made because they are relevant to

defendant's intent, to his motive, and for other relevant reasons),

a state law violation is therefore an element of the offense.

Finally, defendant submits evidence and makes arguments contrary to

the allegations of the Indictment.

1. Acts Which Occurred Before June 30, 2003 are Relevant to

the Honest Services Fraud Scheme and May Not Be Stricken

Simply Because They Are Outside the Statute of

Limitations.

Defendant argues that references to conduct prior to June 30,

2003 should be stricken because acts which occurred outside of the

limitations period are irrelevant as well as prejudicial and11

inflammatory, and allow the government to effectively prosecute


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-25-

[defendant] for conduct that is time-barred. Memorandum in

Support of Motion to Strike Surplusage (Surplusage Memorandum) at

3, 4-5. Defendant repeats these arguments in a separate

Memorandum in Support of Motion to Dismiss for Failure to Satisfy

the Statute of Limitations (Limitations Memorandum), and also

asserts that if the charged mailings or wires depend on the

previous, time-barred conduct to make out an offense, then the

entire Indictment must be dismissed, but that even if they do not

. . . [the] Court must strike from the Indictment those events

occurring outside of the limitations period, [and] [w]ith the

Indictment altered so significantly, this Court cannot know whether

the grand jury would still indict. Limitations Memorandum at 12.

The assumption underlying all of these arguments that the statute

of limitations, a rule limiting when prosecutions are brought,

somehow bars the admission of relevant evidence is wrong.

The law is settled that a motion to strike surplusage from an

Indictment may be granted only if the challenged allegations are

not relevant to the crime charged and are inflammatory and

prejudicial. United States v. Mulder, 273 F.3d 91, 99 (2d Cir.

2001); accord United States v. Sharifipour, 2006 WL 1007661, at *10

(N.D.N.Y. 2006). Courts have interpreted this standard to be

exacting; it is met only in rare cases where it is clear that the

allegation is both irrelevant and inflammatory and prejudicial.

United States v. Tomero, 496 F.Supp. 2d 253, 255 (S.D.N.Y. 2007);


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see also id. (noting that it has long been the policy [of the

courts in the Southern District of New York] . . . to refrain from

tampering with indictments) (quotation omitted). Furthermore,

relevant evidence may not be stricken regardless of how

prejudicial the language is. United States v. Scarpa, 913 F.2d

993, 1013 (2d Cir. 1990) (quotation omitted); see also Sharifipour,

2006 WL 1007661, at *10 (There are two distinct elements to the

inquiry; namely, relevance and prejudice. Thus, the degree of

prejudice is generally of no moment if the allegation is relevant

and admissible.).

A statute of limitations is a defense . . . not a rule of

evidence . . . [it] has no bearing on the admissibility of

evidence. Sir Speedy, Inc. v. L & P Graphics, Inc., 957 F.2d

1033, 1038 (2d Cir. 1992) (civil case) (quoting United States v.

Ashdown, 509 F.2d 793, 798 (5th Cir. 1975)); United States v.

Cisneros, 203 F.3d 333, 348 n. 13 (5th Cir. 2000) (same). In other

words, [s]tatutes of limitation put time limits on when actions

may be brought; they are not evidentiary rules that blind courts

from consideration of relevant facts. Article II Gun Shop, Inc.

v. Gonzales, 441 F.3d 492, 496 (7th Cir. 2006) (quoting and

agreeing with the government).

As a result, otherwise admissible evidence is not excluded

merely because it predates the limitations period. See United

States v. DeFiore, 720 F.2d 757, 764 (2d Cir. 1983) (stating, in


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Relying on dicta from cases challenging indictments following12

conviction, defendant attempts to create law imposing a new limiton indictments: allegations which the government could, but neednot, offer at trial must be stricken as surplusage. SurplusageMemorandum at 2, 4. This is clearly not so because courts mayadmit evidence that does not directly establish an element of theoffense charged, in order to provide background for the eventsinvolved in the case. United States v. Skowronski, 968 F.2d 242,246 (2d Cir. 1992); see also United States v. Dula, 989 F.2d 772,777-78 (5th Cir. 1993) ([i]n developing proof of intent and

motive, the prosecution may offer all of the surroundingcircumstances that were relevant including a wire transmission notcharged in the indictment because it was relevant to the existenceof the scheme and therefore was independently admissible as directproof of the scheme charged.). Not surprisingly, defendantsargument has been rejected. See United States v. Yeaman, 987 F.Supp. 373, 376-77 (E.D. Pa. 1997) (Language is properly included

-27-

the context of evidence offered pursuant to Fed. R. Crim. P.

404(b), [c]learly, the prior act evidence adduced here went

directly to establishing [defendants] intent, as well as the

preparations and plans that went into the scheme to defraud, and

such evidence is admissible even though it antedates the

limitations period.) (internal citation omitted); see also United

States v. Read, 658 F. 2d 1225, 1240 (7th Cir. 1981) (Of course,

as in any prosecution, proof of conduct prior to the statute of

limitations is admissible to show the scheme and intent.). This

rule makes good sense because [i]t would be a bizarre result

indeed if a crime properly prosecuted within the limitations period

could not be proven because an essential element, such as intent,

could only be established by proof of incidents occurring outside

the period. Cisneros, 203 F.3d at 348 n.13 (quoting Ashdown, 509

F.2d at 798).12


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in an indictment if it pertains to matters which the governmentwill prove at trial. These matters need not be essential elementsof the offense if they are in a general sense relevant to the

overall scheme charged, or contain relevant backgroundinformation.) (citations and quotation marks omitted); UnitedStates v. Giampa, 904 F. Supp. 235, 271 (D.N.J. 1995) (If theGovernment intends to properly prove a matter at trial, then it isproper for the indictment to include those matters, even if theyare not essential elements of the crime charged.)

Neither United States v. Rosenthal, 9 F.3d 1016, 1023 (2d Cir.1993), nor United States v. McIntosh, 23 F.3d 1454, 1457 (8th Cir.1994) is to the contrary. Those cases rejected argumentschallenging convictions where the government did not prove certainallegations in the indictment (in Rosenthal, the district court

removed the words false and fraudulent from the indictment beforeinstructing the jury, while in McIntosh, the indictment allegedthat defendant possessed a gun which did not exist). Indeed, inRosenthal, the Second Circuit actually concluded that allegationsin an indictment that go beyond the essential elements which arerequired for conviction do not increase the Governments burden.Rosenthal, 9 F.3d at 1023.

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Here, all of the pre-limitations allegations, including those

highlighted by defendant, refer to relevant evidence admissible to

establish the existence of the single scheme alleged in the

Indictment, defendants intent to defraud, his motive, and

pertinent background. The examples highlighted by defendant such

as defendants failure to disclose to the Legislative Ethics

Committee that he would be contacting labor union officials on

behalf of McGinn, Smith, Indictment 36; defendants creation of

a sham invoice to make it falsely appear that he had performed work

for a $15,000 payment from Leonard J. Fassler when, in fact, he had

done nothing, id. at 43; and his failure to make disclosures

required not only by securities laws, but also his contracts with


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-29-

Wright Investors Service (Wright), id. at 25-27 are clearly

relevant to whether defendant devised a scheme to deprive another

of the intangible right of honest services, the origin and duration

of the scheme, and defendants intent and motive, among other

issues.

In an attempt to strike the pre-limitations allegations,

defendant argues that events occurring prior to June 30, 2003 were

not in furtherance of the underlying fraud scheme. See Limitations

Memorandum at 11. But this argument is based on a myopic reading

of the indictment, which alleges, for example, that: (1) during the

entire time period between 1994 and 2006, defendant would contact

persons or entities who had business before the Legislature or

State agencies, including union officials, thereby exploiting his

official position for personal compensation and enrichment, knowing

and believing that his reasonably perceived ability to influence

official action would, at least in part, motivate those he

contacted to enter into financial relationships beneficial to his

personal financial interests, Indictment 19, (2) defendant

contacted at least sixteen unions, id. at 22, (3) he was paid for

clients Wright obtained as a result of defendants referral, id. at

24-26, and (4) eleven union pension funds became Wright clients

after his contact, id. at 28. The Indictment further alleges

that these payments were made throughout the period between 1994

and 2006, 21. As a result, so long as defendant was receiving


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Defendant also argues that the McGinn, Smith allegations are13

irrelevant, Surplusage Memorandum at 6-7, because none of thealleged mailings and wire transmissions directly involve McGinn,Smith, but the absence of a charged mailing or wire transmissiondirectly related to one portion of a single scheme does notundermine the relevance of that evidence. See United States v.

Pharis, 298 F.3d 228, 233-34 (3d Cir. 2002) (finding, in mail fraudcase where there was a single scheme to inflate consulting billssubmitted to insurance company, that the district court wasplainly mistaken when it concluded that evidence regarding billscharged manually, before the bills were computerized, could not bepart of the mail-fraud scheme because the charged mailings relatedto computerized bills and observing that [i]t is not of any legalsignificance that the mailings used to bring the scheme under themail-fraud statute occurred at the end of this single scheme. Afraudulent scheme can span many years with the mailings occurringonly at the end of the period.). Furthermore, the McGinn, Smithallegations are relevant to establishing a scheme because what

defendant did for McGinn Smith directing Wright to use McGinn,Smith as a broker for certain union pension fund accounts defendantsolicited for Wright was inextricably intertwined withdefendants contact with those same unions for Wright. As aresult, defendant was burdened with the same conflicts of interestfor payments from McGinn, Smith as he was for payments from Wright.

-30-

payments (and even while he was merely trying to obtain business

from an entity with interests before the legislature), he labored

under a substantial conflict of interest whose non-disclosure was

material. Given these allegations, the entire scheme is relevant

evidence and is not barred by the statute of limitations. United13

States v. Wright, 1990 WL 78035, at *3 (N.D. Ill. 1990) (rejecting

argument that references in the indictment to conduct outside the

limitations period should be stricken because that argument runs

contrary to the well established principle that events occurring

prior to the limitations period are relevant to establish a scheme

to defraud and the defendants intent.)


44/76

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Indeed, contrary to defendants argument, it is quite common

for evidence of conduct outside the limitations period to be

admitted; the issue the defense normally raises is whether the last

mailing or wire was within the limitations period, not that the

statute of limitations should operate as a rule of evidence to bar

admission of pre-limitations conduct. See United States v. Eisen,

974 F.2d 246, 263 (2d Cir. 1992) (However, the statute of

limitations in a mail fraud case runs from the date of the charged

mailing, notwithstanding that the defendants actions concerning

the scheme to defraud occurred before the statutory period.);

United States v. Scop, 846 F.2d 135, 139 (2d Cir. 1988) (While it

is true that the great majority of criminal acts occurred prior to

the limitations date of July 22, 1981, the evidence . . . was

sufficient to permit a rational jury to conclude that the

conspiracy and substantive scheme to defraud continued.); see also

United States v. Heacock, 31 F.3d 249, 256-57 (5th Cir. 1994)

(evidence that defendant concealed nature and extent of his

bookmaking operation from the IRS in sixteen different ways bears

on the existence of the scheme to defraud, and even evidence

relating to events which occurred before the limitations period was

properly admitted).


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Pre-McNally, the Circuits, including the Second Circuit, took14

the unanimous view that a state law violation was not an element ofhonest services fraud and need not be proven. See, e.g., UnitedStates v. Martin, 195 F.3d 961, 966 (7th Cir. 1999) (citing cases).

Post-McNally, fourfederal appellate courts (the First, Fourth,Ninth, and Eleventh Circuits) have reached the same conclusion.Weyhrauch, 548 F.3d at 1246; United States v. Hasner, 340 F.3d1261, 1269 (11th Cir. 2003); Sawyer, 239 F.3d at 41-42; UnitedStates v. Bryan, 58 F.3d 933, 940 (4th Cir. 1995). Only the FifthCircuit has concluded that a state law violation must be allegedand proven in an honest services fraud case, and it has alsoconcluded that violation of a misdemeanor statute is sufficient(and did not need to decide whether a civil violation would besufficient). United States v. Brumley, 116 F.3d 728, 734, 735-36(5th Cir. 1997). In Panarella, the Third Circuit stated that itneed not decide whether a violation of state law is always

necessary for nondisclosure to amount to honest services fraud,277 F.3d at 693, because a violation of Pennsylvanias misdemeanordisclosure statute was proven. Id. at 694. In United States v.Jennings, 487 F.3d 564 (8th Cir. 2007), the Eighth Circuit did notdecide whether a state law violation was necessary becausedefendant had violated a Minnesota statute requiring disclosure ofpotential conflicts. Id. at 578.

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2. Evidence Regarding Defendants Non-Compliance With State

Law is Relevant and Admissible to Defendants Intent and

Motive, and To Assist the Jury In Understanding the

Actions of Participants, But Allegations of State Law in

the Indictment Do Not Transform Violation of State Law

Into An Element of Honest Services Fraud.

Defendant contends that the presence of state law allegations

in the indictment has transformed a state law violation into an

element of honest services fraud. Dismissal Memorandum at 36-37.

He is mistaken.

In this Circuit (as in most), violation of a state law is not

an essential element of honest services mail fraud. Margiotta, 688

F.2d at 124 (a violation of local law is not an essential element

[of mail fraud].) Moreover, evidence of state statutes, and14


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-33-

whether a public official violated or complied with them, is

relevant and admissible (1) to show the public officials intent,

see United States v. Jennings, 487 F.3d 564, 580 (8th Cir. 2007)

(district courts instructions correctly stated that the

compliance or non-compliance with [state disclosure statutes] is

only evidence relating to [defendant-legislators] intent to

defraud); United States v. Keane, 522 F.2d 534, 554 (7th Cir.

1975) (district court instructed jury that in deciding whether

defendant defrauded citizens of right to have citys affairs

conducted free from conflict of interest, jury may consider state

statutes and city ordinances, inter alia, as relevant to the

defendants intent to defraud if any such intent existed.), (2) to

show motive, see United States v. Brechtel, 997 F.2d 1108, 1115,

1116 (5th Cir. 1993) (in prosecution under 18 U.S.C. 1006s

conflict of interests prohibition, testimony that regulation

prohibited interested director transactions properly tended to

demonstrate the defendants motive for nondisclosure), and (3) to

assist the jury in understanding the actions and conduct of the

participants. See United States v. McElroy, 910 F.2d 1016, 1023-24

(2d Cir. 1990) (evidence of Regulation U properly admitted so

witnesses could explain basis for lending policies and

creditworthiness determinations as they related to defendants loan

application); see also Brechtel, 997 F.2d at 1115 n. 27

(describing cases in which courts have admitted civil violation


47/76

As discussed infra at 52-54 in connection with defendants15

motion to strike references to SEC Rule 206(4)-3, 17 C.F.R. 275.206(4)-3(a)(2), as surplusage, evidence regarding that rule isadmissible for the same reasons.

Such proof would obviate any defense request for the Second16

Circuit to convene in banc to reconsider that issue. To the extentthat there is a difference between a material conflict ofinterest and a substantial conflict as the latter term is used

in N.Y. Pub. Off. Law 74(2), both are covered by a fair readingof the allegations in the Indictment, and the evidence at trialwill show a violation of both. Cf. United States v. Brechtel, 997F.2d 1108, 1120 (5th Cir. 1993) (board member of financialinstitution is classic fiduciary who owes institution affirmativeduty to disclose all potentially substantial conflicts ofinterest).

-34-

evidence in criminal prosecutions to show motive and to assist jury

in understanding conduct or transactions).

Here, the Indictment quotes from state statutes because those

statutes are probative of defendants intent and motive, and as

background to assist the jury in understanding the actions of

participants. Evidence of defendants violations of those15

statutes will be admissible for the same purposes, and the

government anticipates that the evidence at trial will also

demonstrate defendant violated state law. The fact that the16

Indictment includes allegations regarding state law does not

somehow overrule the Second Circuits clear holding that proof of

a violation of state law is not an element of honest services

fraud. See Rosenthal, 9 F.3d at 1022 (allegations in an

indictment that go beyond the essential elements which are required

for conviction do not increase the Governments burden).


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-35-

Not only is a state law violation not required, but a states

failure to make particular activity criminal does not bar federal

prosecution pursuant to the mail fraud statute. See United States

v. Porcelli, 865 F.2d 1352, 1358 (2d Cir. 1989) (mail fraud

prosecution for scheme where defendant failed to turn over sales

taxes to New York State did not violate due process clause even

though, under state law, failure to turn over sales taxes was a

civil, not a criminal violation, because focus of both wire and

mail fraud statutes is upon misuse of wires or mails not the

regulation of state affairs). This makes sense [b]ecause laws

governing official conduct differ from state to state, [and]

conditioning mail fraud convictions on state law means that conduct

in one state might violate the mail fraud statute, whereas

identical conduct in a neighboring state would not. Weyhrauch,

548 F.3d at 1246.

3. Accepting the Allegations in the Indictment As True, as

Required When Assessing the Sufficiency of an Indictment,

This Indictment Charges a Valid Offense.

Defendant contends that the Indictment does not charge an

offense because (a) certain allegations are not supported with

evidentiary detail, and (b) evidence submitted by defendant shows

that he did not violate state law. Defendant, in making arguments

contrary to the allegations in the Indictment and submitting

extrinsic evidence, has violated the legal principles for

adjudicating a motion to dismiss an indictment.


49/76

Materiality is an element of the offense which must be proven17

at trial, but sections 1341, 1343, and 1346 do not contain the wordmaterial, and an indictment need not include the word,material. United States v. Klein, 476 F.3d 111, 113 (2d Cir.),cert. denied, 128 S. Ct. 804 (2007).

-36-

A defendant moving to dismiss an indictment must meet a high

standard. United States v. Lazore, 90 F. Supp. 2d 202, 203

(N.D.N.Y. 2000). In the Second Circuit, [i]t is well settled that

an indictment is sufficient if it, first, contains the elements of

the offense charged and fairly informs a defendant of the charge

against which he must defend, and, second, enables him to plead an

acquittal or conviction in bar of future prosecutions for the same

offense. Hamling v. United States, 418 U.S. 87, 117 (1974).

United States v. Alfonso, 143 F.3d 772, 776 (2d Cir. 1998).17

Although an indictment must charge[] a crime with sufficient

precision to inform the defendant of the charges he must meet and

with enough detail that he may plead double jeopardy in a future

prosecution based on the same set of events. . . an indictment need

do little more than to track the language of the statute charged

and state the time and place (in approximate terms) of the alleged

crime. Id. (internal citation and quotations omitted).

Defendant is entitled to a short, concise statement of facts

constituting the offense charged, but he is not entitled to know

the evidentiary details with which the government intends to

convict him. United States v. Cerone, 830 F.2d 938, 951 (8th Cir.

1987) (indictment charging that defendant traveled in interstate


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-37-

commerce with intent to promote illegal activity need not specify

particular acts that defendant did in furtherance of illegal

activity); see United States v. Weiss, 491 F.2d 460, 466 (2d Cir.

1974) (unnecessary to allege more specifically than failure to

produce documents conduct by which defendants corruptly endeavored

to obstruct justice; such details need not be alleged); see also

United States v. Musacchio, 968 F.2d 782, 787 (9th Cir. 1991)

(government not required to list supporting evidence in

indictment); United States v. Moody, 923 F.2d 341, 351 (5th Cir.

1991) (indictment need not set out evidentiary details); United

States v. Muskovsky, 863 F.2d 1319, 1326-27 (7th Cir. 1988) (in

Travel Act prosecution, no requirement that indictment

specifically identify the illegal acts [defendants] performed or

facilitated following their use of interstate facilities).

The government is not making a full proffer of the evidence

it intends to present at trial and therefore, sufficiency of the

evidence is not in issue here. United States v. Alfonso, 143 F.3d

772, 776 (2d Cir. 1998); United States v. Elliott, 363 F. Supp. 2d

439, 450 (N.D.N.Y. 2005); see United States v. Bicoastal Corp., 819

F. Supp. 156, 158 (N.D.N.Y. 1993) (citations omitted) (It has long

been held that the criminal analog to civil summary judgment

motions, referred to in the colloquialism of the past as speaking

motions, are not allowed by Fed. R. Crim. P. 12(b).)


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In addition to the Indictment, as discussed in more detail18

infra at 60-61, the government has also provided defendant withdocuments of particular relevance which identify official actionsdefendant took and his extensive involvement in legislation,

grants, and behind-the-scenes activity benefitting the laborunions, Fassler, Abbruzzese, and Ball. As a result of theproduction of the documents of particular relevance, defendant isaware of documentation concerning his official acts and appears tobe making a technical pleading argument. But under applicable law,there is no need for the government to include such allegations inthe indictment.

-38-

In assessing the sufficiency of an indictment, the court must

examine the indictment as a whole, accept as true the facts

alleged, and determine only whether the indictment is valid on its

face. United Stat