NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 10-4567
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UNITED STATES OF AMERICA
v.
DANIEL VAN PELT,
Appellant
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On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 09-cr-00912)
District Judge: Honorable Joel A. Pisano
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Argued September 21, 2011
Before: FISHER, HARDIMAN and GREENAWAY, JR., Circuit Judges.
(Filed: October 18, 2011)
Steven G. Sanders [Argued]
Mark E. Coyne
Office of United States Attorney
970 Broad Street, Room 700
Newark, NJ 07102-0000
Attorneys for Plaintiff-Appellee
Robert E. Margulies [Argued]
Margulies Wind
3 Second Street
Plaza 10, Suite 1201
Harborside Financial Center
Jersey City, NJ 07311
Attorneys for Defendant-Appellant
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OPINION OF THE COURT
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HARDIMAN, Circuit Judge.
Daniel Van Pelt appeals his judgment of conviction and sentence following a jury
trial. We will affirm.
I
Because we write for the parties, we recount only the essential facts and
procedural history. We review the facts in the light most favorable to the Government, as
the verdict winner. United States v. Hoffecker, 530 F.3d 137, 146 (3d Cir. 2008) (citing
United States v. Wood, 486 F.3d 781, 783 (3d Cir. 2007)).
Van Pelt was indicted for attempted extortion under color of official right in
violation of 18 U.S.C. § 1951(a) and federal program bribery in violation of 18 U.S.C. §
666(a)(1)(B). He was convicted on both counts after an eight-day jury trial, and the
District Court sentenced him to 41 months imprisonment.
Van Pelt held two elected offices over the course of his career in state government.
He was a committeeman on the Ocean Township Committee from 1998 until he resigned
from the post on February 28, 2009. (J.A. 696–97.) He was also an assemblyman for the
State of New Jersey from 2008 until he relinquished the position following his arrest in
July 2009. (J.A. 862, 868–69.) In his role as a state legislator, Van Pelt served on a
2
committee that oversees the New Jersey Department of Environmental Protection (DEP).
The DEP is charged with, among other things, enforcing the Coastal Area Facilities
Review Act (CAFRA), which requires new developments to meet certain environmental
standards. As a committeeman, Van Pelt sought developers who were interested in
building developments in the township.
The evidence at trial showed that on at least six occasions between December
2008 and May 2009, Van Pelt met with Solomon Dwek, who agreed to cooperate with
the Government‟s efforts to ferret out corruption after he pleaded guilty to bank fraud and
money laundering. Dwek and Van Pelt also exchanged emails and telephone calls.
Dwek, under the alias “David Esenbach,” found Van Pelt after bribing another New
Jersey official to obtain an introduction. Dwek posed as a real estate developer interested
in a site in Waretown, an unincorporated area within Ocean Township. Throughout their
many recorded conversations, Dwek and Van Pelt, using euphemisms and allusions,
agreed that, in exchange for money, Van Pelt would assist Dwek both in obtaining
expedited CAFRA review and in presenting his development proposal to the township
committee in charge of selecting a developer for the site.1 Dwek testified that these
conversations constituted a scheme to exchange money for official assistance in the
development process. Van Pelt, on the other hand, testified that the conversations set up
1
It appears CAFRA approval of the site was not necessary because it had been
designated as a “center.” But Van Pelt led Dwek to believe that CAFRA review would
be problematic and that he had the power to expedite the process.
3
a legally permissible “consulting” arrangement whereby he would assist Dwek after he
resigned from the local committee. On February 21, 2009, Van Pelt accepted an
envelope from Dwek containing $10,000 in cash at a restaurant in Atlantic City.
II
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291. Van Pelt concedes, as
he must, that we review for plain error because he did not object at trial to any of the
issues he presents on appeal. See Fed. R. Crim. P. 52(b). To meet this standard, Van Pelt
must show: (1) error, (2) that was “clear or obvious,” (3) that “affected [his] substantial
rights,” and (4) that “„seriously affect[s] the fairness, integrity or public reputation of
judicial proceedings.‟” Puckett v. United States, 129 S. Ct. 1423, 1429 (2009) (last
alteration in original) (quoting United States v. Olano, 507 U.S. 725, 736 (1993)). The
decision whether to correct a plain error that satisfies the first three prongs of the standard
is discretionary, while the fourth prong is used to guide the exercise of that discretion. Id.
A
Van Pelt first argues that the jury instruction on the bribery count was defective
because it did not require a connection between the thing given and an official act
performed by the bribed official. The jury charge stated:
In order to find the defendant guilty of this offense, count two,
bribery, you must find that the Government proved each of the following
five elements beyond a reasonable doubt: First, that at the time alleged in
the indictment, the defendant was an agent of the State of New Jersey;
4
second, that the State of New Jersey was a state Government and that it
received federal benefits in excess of $10,000 in a one-year period; third,
that the defendant agreed to accept or accepted something of value from the
cooperating witness; fourth, that the defendant acted knowingly, willfully
and corruptly with the intent to be influenced or rewarded in connection
with the business, a transaction or a series of transactions of the State of
New Jersey; fifth, that the value of the business, transaction or series of
transactions to which the payment related was at least $5,000.
(J.A. 1139.) The District Court also explained each element in greater detail and defined
what it means to “act corruptly.”
We are not persuaded that the District Court erred. “We review jury instructions
as a whole and in light of the evidence.” United States v. Petersen, 622 F.3d 196, 203
(3d Cir. 2010). In addition, “a district court has broad discretion in fashioning a jury
charge as long as it communicates „the substance of the law‟ so the jury is not misled or
confused.” Id. (quoting United States v. McGill, 964 F.2d 222, 235 (3d Cir. 1992)).
Van Pelt essentially asserts that the District Court was required to use the words
“in exchange for” or “quid pro quo” in charging the jury on count two. Even if he is
correct that the notion of a quid pro quo is an element of the offense,2 our case law does
2
Van Pelt relies on United States v. Cicco, 938 F.2d 441 (3d Cir. 1991), United
States v. Kemp, 500 F.3d 257 (3d Cir. 2007), and United States v. Sun-Diamond Growers
of California, 526 U.S. 398 (1999), for the proposition that § 666 requires a quid pro quo.
Cicco used “quid pro quo” only in passing, 938 F.2d at 444 (“We begin by
acknowledging that a solicitation of specific election day services with municipal
employment as the quid pro quo, might come within the literal language of § 666.”), and
when read carefully supports only the proposition that a quid pro quo is sufficient, as
opposed to necessary, to lead to a bribery conviction. See United States v. Gee, 432 F.3d
713, 714 (7th Cir. 2005). Sun-Diamond and Kemp are distinguishable because those
5
not require that such a phrase be included verbatim in the charge. See United States v.
Bryant, --- F.3d ----, 2011 WL 3715811, at *10 & n.16 (3d Cir. Aug. 25, 2011) (“The
Government argues that § 666 does not require proof of a quid pro quo in any event.
Because we believe that the instruction did require the jury to find an exchange, we need
not decide that question today.”). The charge here adequately conveys the necessity of a
link between the thing accepted by Van Pelt and the government business sought to be
influenced, and in more ways than one.3 The District Court told the jury that Van Pelt
must have intended to be influenced “corruptly” and “in connection with” the state‟s
business. The additional discussion of the fourth element of the offense makes clear that
corrupt actions include those that “accomplish[] some otherwise lawful end or lawful
result, influenced by the receipt of the thing of value.” (J.A. 1141–42 (emphasis added).)
Assuming arguendo that § 666 requires a quid pro quo, we find no error in the District
courts considered a different bribery statute, 18 U.S.C. § 201. See infra note 3. The
question of the quid pro quo requirement remains an open one in this circuit.
3
We note that an official act need not actually be executed under the statute.
Unlike many bribery prosecutions under 18 U.S.C. § 201(b), no “official act” is required
under § 666. See generally United States v. Abbey, 560 F.3d 513, 521 (6th Cir. 2009)
(“[N]either § 666 nor the Hobbs Act contains the „official act‟ language that the
[Supreme] Court found „pregnant with the requirement that some particular official act be
identified and proved.‟” (quoting Sun-Diamond, 526 U.S. at 406)). To be bribed, the
government official need only “accept[] or agree[] to accept[] anything of value . . .
intending to be influenced or rewarded in connection with any business . . . of such . . .
government . . . involving any thing of value of $5,000 or more . . . .” 18 U.S.C. §
666(a)(1)(B). Thus, Van Pelt‟s argument that he did not take any action on behalf of
Dwek is unavailing.
6
Court‟s instruction because it required the jury to find that Van Pelt was “influenced” by
or “rewarded” with a payment in connection with New Jersey‟s business.
Even if the District Court erred, it is a logical impossibility that such error was
“clear or obvious.” Our sister circuits have split over the question of whether § 666
requires a quid pro quo. Compare United States v. Redzic, 627 F.3d 683, 692 (8th Cir.
2010) (requiring a quid pro quo), and United States v. Ganim, 510 F.3d 134, 148–51 (2d
Cir. 2007) (same, on plain-error review), and United States v. Jennings, 160 F.3d 1006,
1020–22 (4th Cir. 1998) (finding plain error but affirming the conviction where the jury
instruction omitted a quid pro quo element), with United States v. McNair, 605 F.3d
1152, 1187–88 (11th Cir. 2010) (no quid pro quo required), and United States v. Abbey,
560 F.3d 513, 520–21 (6th Cir. 2009) (same), and United States v. Gee, 432 F.3d 713,
714–15 (7th Cir. 2005) (same). Because we have not yet decided the question, it
necessarily follows that there can be no plain error. And Van Pelt‟s failure to raise the
issue in the District Court makes this case an unsuitable occasion for us to decide on
which side of the circuit split we fall.
B
Van Pelt‟s second ground for reversal urges us to construe § 666 narrowly so as to
avoid reaching officials who do not control government funds. This argument, like his
final one, contends that the statute is unconstitutional as applied to his conduct. We
disagree for two reasons, one factual and the other legal. First, as a state legislator who
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voted on the budget, Van Pelt had control of New Jersey funds.4 Second, the statute by
its terms requires only that the Government prove that Van Pelt was “an agent of an
organization, or of a State, local, or Indian tribal government” at the time he accepted the
bribe. 18 U.S.C § 666(a)(1). The statute defines “agent,” but that definition does not
include a “control” element. 18 U.S.C. § 666(d)(1); see United States v. Vitillo, 490 F.3d
314, 323 (3d Cir. 2007) (“Because § 666(d)(1) does not define an „agent‟ as someone
who necessarily controls federal funds, we conclude that the [defendant‟s] argument
fails.”). Moreover, the Supreme Court has rejected the contention that the bribe must
have affected particular funds in any particular way in order for the statute to
constitutionally proscribe it. See Sabri v. United States, 541 U.S. 600, 605–07 (2004);
Salinas v. United States, 522 U.S. 52, 56–60 (1997). Accordingly, we find no error,
much less plain error, in Van Pelt‟s conviction on this basis.
C
Finally, Van Pelt questions the reach of federal jurisdiction with respect to both
crimes of conviction, focusing on the fact that he attempted to extort and accepted a bribe
from a cooperating witness pitching a fictitious scheme at the Government‟s behest. That
is, he claims that federal interests are not implicated by his susceptibility to a fictitious
scheme that could have no impact on federal interests.
4
Evidence introduced at trial showed that New Jersey receives more than $10,000
from the federal government each year as required by 18 U.S.C. § 666(b), and that the
State Assembly votes on the budget.
8
We have rejected this argument with respect to the extortion conviction under the
Hobbs Act and we do so again here. See United States v. Jannotti, 673 F.2d 578 (3d Cir.
1982) (en banc). In Jannotti, after the jury returned guilty verdicts, the district court
granted motions for acquittal, and dismissed the Hobbs Act count of the indictment “for
lack of jurisdiction,” in part because of “the fictitious nature of the scheme.” 673 F.2d at
580–81, 590. We rejected this “impossibility defense” unequivocally. Id. at 590–94; see
United States v. Manzo, 636 F.3d 56, 61 n.4 (3d Cir. 2011); see also United States v.
Urban, 404 F.3d 754, 766 (3d Cir. 2005) (holding that only a de minimis effect on
interstate commerce is needed to sustain a Hobbs Act conviction).
The challenge to Van Pelt‟s bribery conviction fails for analogous reasons. Courts
have long held that a defendant may be subject to criminal liability where, if the facts
were as he thought them to be, a crime would have been committed. See, e.g., United
States v. Everett, 700 F.2d 900, 903–08 (3d Cir. 1983) (finding that Congress intended to
eliminate the defense of impossibility by passing the Comprehensive Drug Abuse
Prevention and Control Act); Jannotti, 673 F.2d at 591–92 (citing cases that rejected an
impossibility defense). An impossibility defense is no more successful when directed to
the federal jurisdictional element of the offense. See Jannotti, 673 F.2d at 593
(“[D]efendants‟ plan to transport the goods interstate, even though unattainable from the
outset, sufficiently impinged on an area of federal concern to justify federal regulation
and prohibition.” (discussing United States v. Rose, 590 F.2d 232, 235 (7th Cir. 1978))).
9
State officials who are susceptible to accept bribes in “sting” operations jeopardize the
security of federal funds to an extent sufficient to criminalize such bribery. See id. at 592
(“Congress can constitutionally reach inchoate offenses because these offenses pose a
potential threat to interstate commerce; the existence of such a threat ties „the proscribed
conduct to the area of federal concern delineated by the statute.‟” (quoting United States
v. Feola, 420 U.S. 671, 695 (1975))).5 Moreover, Van Pelt‟s crime was not inchoate: the
bribery was complete when he accepted a bribe with the intent to be influenced. Thus,
we reject Van Pelt‟s claim that the jurisdictional element of his bribery conviction was in
any way contrived because he accepted a bribe with respect to a development project that
never existed.
III
For the foregoing reasons, we will affirm the judgment of the District Court.
5
Even though Jannotti was concerned with the Hobbs Act, which receives its
constitutional sanction from the Commerce Clause, and § 666 is founded on the Spending
and Necessary and Proper Clauses, see Sabri, 541 U.S. at 605, the logic of Jannotti is
easily extended. Where there is a constitutionally valid federal interest, Congress may
proscribe conduct that raises a “mere” indirect threat to that interest.
10