United States v. Botti

10-3891-cr
United States v. Botti

1 UNITED STATES COURT OF APPEALS
2
3 FOR THE SECOND CIRCUIT
4 ____________________________________
5
6 August Term, 2011
7
8 Argued: May 2, 2012 Decided: March 28, 2013
9
10 Docket No. 10-3891-cr
11 ____________________________________
12
13 UNITED STATES OF AMERICA,
14
15 Appellee,
16
17 —v.—
18
19 JAMES BOTTI
20
21 Defendant-Appellant.
22 ___________________________________
23
24 Before: SACK and RAGGI, Circuit Judges, and KOELTL, District
25 Judge.*
26
27 Defendant James Botti was convicted of honest services

28 mail fraud after a jury trial in the District of Connecticut

29 (Charles S. Haight, Jr., Judge). See 18 U.S.C. §§ 1341 and

30 1346. In this appeal from the judgment entered on September

31 20, 2010, Botti argues that the District Court committed

32 reversible error when it used a jury instruction on honest

33 services mail fraud that allowed the jury to find Botti guilty

* The Honorable John G. Koeltl, of the United States District
Court for the Southern District of New York, sitting by
designation.

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 1 of that crime without finding a bribery or kickback scheme, in

2 contravention of the Supreme Court’s decision in Skilling v.

3 United States, 130 S. Ct. 2896 (2010). While the jury

4 instruction was error, it does not merit reversal because

5 bribery was the only theory of honest services mail fraud

6 available to the jury based on the arguments and evidence at

7 trial. Therefore, we affirm the judgment of the District

8 Court.

9 Affirmed.

10 ______________

11 GEORGE W. GANIM, JR., The Ganim Law Firm, P.C., for Defendant-
12 Appellant James Botti.
13
14 RICHARD J. SCHECHTER AND RAHUL KALE, Assistant United States
15 Attorneys, (Sandra S. Glover on the brief) for Michael J.
16 Gustafson, Acting United States Attorney for the District of
17 Connecticut, for Appellee United States of America.
18 ______________

19 John G. Koeltl, District Judge:
20
21 Defendant James Botti was convicted of honest services

22 mail fraud after a jury trial in the District of Connecticut

23 (Charles S. Haight, Jr., Judge). See 18 U.S.C. §§ 1341 and

24 1346. In this appeal from the judgment entered on September

25 20, 2010, Botti argues that the District Court committed

26 reversible error when it used a jury instruction on honest

27 services mail fraud that allowed the jury to find Botti guilty

28 of that crime without finding a bribery or kickback scheme, in

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 1 contravention of the Supreme Court’s decision in Skilling v.

2 United States, 130 S. Ct. 2896 (2010). While the jury

3 instruction was error, it does not merit reversal because

4 bribery was the only theory of honest services mail fraud

5 available to the jury based on the arguments and evidence at

6 trial.

7 Therefore, we AFFIRM the judgment of the District Court.

8 BACKGROUND

9 On November 6, 2008, a grand jury in the District of

10 Connecticut returned a seven-count indictment against Botti

11 charging (i) one count of conspiracy in violation of 18 U.S.C.

12 § 371 to commit mail fraud in violation of 18 U.S.C. §§ 1341

13 and 1346; (ii) one count of bribery of a public official in

14 violation of 18 U.S.C. § 666(a)(2); (iii) one count of

15 scheming to obtain money and property and to defraud the

16 citizens of Shelton, Connecticut of the right to honest

17 services by mail fraud in violation of 18 U.S.C. §§ 1341 and

18 1346; (iv) one count of conspiracy in violation of 18 U.S.C.

19 § 371 to structure transactions with domestic financial

20 institutions contrary to 31 U.S.C. §§ 5324(a)(3) and 5324(d);

21 (v) one substantive count of such structuring in violation of

22 31 U.S.C. §§ 5324(a)(3) and 5324(d); and (vi) and (vii) two

23 counts of making false statements to the Internal Revenue

24 Service in violation of 18 U.S.C. § 1001(a)(2). The

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 1 indictment also included a forfeiture allegation in connection

2 with the structuring counts.

3 Prior to trial, the District Court granted the

4 defendant’s motion to sever the indictment and ordered that

5 the conspiracy to commit mail fraud, bribery, and mail fraud

6 counts—Counts One, Two, and Three—be tried separately from the

7 conspiracy to structure, structuring, and false statement

8 counts—Counts Four through Seven. Separate redacted

9 indictments were prepared for each trial.

10 On November 10, 2009, a jury found Botti guilty of

11 conspiracy to structure and structuring. The jury found him

12 not guilty of the two false statement counts.

13 On April 1, 2010, a separate jury found Botti guilty of

14 honest services mail fraud, as charged in Count Three of the

15 original and redacted indictments. On the verdict sheet, the

16 jury answered “yes” to the statement: “James Botti engaged in

17 a scheme or artifice to deprive the citizens of Shelton of the

18 intangible right of honest services of their public official

19 or officials, by utilizing or causing the United States mails

20 to be used for the purpose of executing that scheme or

21 artifice.” The jury was unable to agree on whether an object

22 of the mail fraud scheme was also “to obtain money or property

23 by means of materially false or fraudulent pretenses,

24 representations or promises . . . .” The jury was also unable

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 1 to reach a verdict on the conspiracy count and the bribery

2 count, and the District Court declared a mistrial on those

3 counts and on the money and property prong of the mail fraud

4 count.

5 On September 17, 2012, Botti was sentenced principally to

6 a 72-month term of imprisonment on the honest services mail

7 fraud count and to concurrent sentences of 60 months on the

8 conspiracy to structure and structuring convictions, followed

9 by concurrent three-year terms of supervised release.

10 Judgment was entered on September 20, 2010.

11 On this appeal from the judgment of conviction, Botti

12 challenges only his conviction on the honest services mail

13 fraud count and only on the basis of the District Court’s

14 allegedly erroneous jury instruction.

15 The mail fraud conspiracy, bribery, and substantive mail

16 fraud counts arose from Botti’s alleged provision of corrupt

17 payments and other benefits to public officials in Shelton,

18 Connecticut where he worked as a real estate developer. The

19 bribery count alleged that in June 2006, Botti provided over

20 $5,000 in things of value to “Public Official #1,” identified

21 at trial as the Mayor of Shelton, with the intent to influence

22 that official to use his position and authority to assist

23 Botti in obtaining approval from Shelton’s Planning and Zoning

24 Commission for a commercial development project at 828

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 1 Bridgeport Avenue in Shelton (“the 828 Project”). The mail

2 fraud count alleged: (i) a scheme to obtain money and property

3 and (ii) a scheme to deprive the citizens of Shelton of the

4 intangible right of honest services of their public officials.

5 The alleged fraudulent scheme to obtain money and property

6 relied on allegations that Botti obtained approval for $6.5

7 million in financing for the 828 Project from a financial

8 institution, later shown to be NewAlliance Bank. That

9 financing depended on approval of the 828 Project by the

10 Planning and Zoning Commission, which Botti allegedly had

11 obtained fraudulently by, among other means, directing

12 employees and persons affiliated with his business to attend a

13 public hearing before the Commission to speak in favor of

14 Botti’s application without disclosing their affiliations with

15 Botti. In support of the scheme to defraud the citizens of

16 Shelton of the honest services of their public officials, the

17 indictment alleged a scheme beginning in or about 2002 in

18 which Botti provided bribes to the Mayor of Shelton and to

19 other Shelton public officials to secure approval for Botti’s

20 commercial development projects.

21 Before trial, while Skilling v. United States, 130 S. Ct.

22 2896, was pending before the Supreme Court, Botti moved to

23 dismiss the mail fraud count to the extent that it depended on

24 the deprivation of the intangible right to honest services

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 1 under 18 U.S.C. § 1346. That statute provides: “For the

2 purposes of this chapter, the term ‘scheme or artifice to

3 defraud’ includes a scheme or artifice to deprive another of

4 the intangible right of honest services.” 18 U.S.C. § 1346.

5 Botti argued that the statute was unconstitutionally vague.

6 In opposition to the motion, the Government argued that Botti

7 “could quite easily understand that his conduct in bribing and

8 rewarding public officials with intent that they use their

9 office to benefit him was prohibited conduct proscribed by

10 section 1346,” and that “federal courts had uniformly

11 construed the mail fraud statute to cover the situation where

12 public officials received bribes and kickbacks thereby

13 depriving the citizenry of their ‘intangible rights’ to good

14 and honest government.” Gov’t Resp. to Def.’s Mot. to Dismiss

15 at 5. The District Court denied Botti’s motion.

16 At trial, the Government’s theory of honest services mail

17 fraud was that Botti made corrupt payments and provided other

18 corrupt benefits to Shelton public officials with the intent

19 to influence those officials and thereby secure approval for

20 his real estate development projects. In its opening

21 statement, the Government explained its theory of the case as

22 follows: “At the end of this trial, you will be asked to

23 decide if James Botti engaged in acts of corruption by bribing

24 public officials with the intent to influence them so that

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 1 they would think of James Botti’s interest, rather than the

2 public interest.”

3 The Government’s honest services mail fraud theory

4 alleged a prolonged effort by Botti to corrupt Shelton public

5 officials. The Government elicited testimony at trial

6 regarding a history of payments made and benefits given by

7 Botti to Shelton’s Mayor with the intent to influence the

8 Mayor in the exercise of his official duties. This included

9 testimony that: Botti had paid for a Florida vacation for the

10 Mayor and his family; Botti had made payments to cover the

11 costs of repairs on the Mayor’s house; Botti had significantly

12 overpaid the Mayor for a Christmas party that Botti held at a

13 restaurant owned by the Mayor; and Botti had provided other

14 services to the Mayor without charge including use of Botti’s

15 backhoe, removing furniture from the Mayor’s house, storing

16 the Mayor’s car in Botti’s maintenance garage, as well as

17 hiring the Mayor’s brother as a favor to the Mayor.

18 The Government did not limit its theory of honest

19 services mail fraud to bribery of the Mayor. The Government

20 also argued that Botti provided corrupt payments and benefits

21 to Shelton Planning and Zoning Commission officials to obtain

22 approval for the 828 Project. At trial, the Government

23 presented evidence that Botti had submitted plans for the 828

24 Project to the Shelton Planning and Zoning Commission. The

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 1 Government offered testimony that, after submitting his plans,

2 Botti became aware that he lacked the votes to obtain approval

3 for the 828 Project from the Planning and Zoning Commission,

4 which led him to provide Shelton’s Mayor with a $50,000 bribe

5 in exchange for which the Mayor would use his influence with

6 the Planning and Zoning Commission to secure approval for the

7 828 Project.1 There was also evidence that, after receiving

8 $50,000 from Botti, the Mayor had urged members of the

9 Planning and Zoning Commission to approve the 828 Project.

10 The Government also offered testimony that Botti had

11 provided benefits directly to members of the Planning and

12 Zoning Commission who had voted in favor of the 828 Project.

13 Botti provided $150 gift certificates to two members of the

14 Planning and Zoning Commission who voted in favor of the 828

15 Project and to another commissioner who provided assistance in

16 obtaining approval of the 828 Project. Botti also paid about

17 $2000 for a Christmas party at a restaurant owned by one of

18 the members of the Planning and Zoning Commission who voted in

19 favor of the 828 Project.

20 During its summation, the Government argued that there

21 were two prongs of the mail fraud alleged in the indictment:

1
This incident also served as evidence in support of the
bribery count on which the jury ultimately could not reach a
verdict.

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 1 “The first prong, he intended to deprive the citizens of

2 Shelton of the honest services of their public officials. He

3 also engaged in a mail fraud to deprive NewAlliance Bank of

4 millions of dollars in loan proceeds.” The Government

5 summarized for the jury the evidence of the history of bribes

6 that Botti had paid to the Mayor of Shelton and to other

7 Shelton officials in exchange for favorable treatment. Based

8 on this pattern of behavior, the Government argued, “James

9 Botti thinks this is how you do business in Shelton; you

10 grease the wheel. . . . James Botti thinks you have to pay to

11 get things done.”

12 With respect to the mail fraud scheme to obtain money and

13 property from NewAlliance Bank, the Government focused on the

14 misrepresentations that allegedly led the Planning and Zoning

15 Commission to approve the 828 Project and thereby satisfy a

16 condition for financing approval from the bank. The

17 Government argued, “Botti’s scheme to defraud was also an

18 effort to make money for himself. He wanted the millions of

19 dollars NewAlliance Bank had waiting for him, if he could just

20 get [Planning and Zoning Commission] approval.” As evidence

21 of the materially false representations connected with this

22 mail fraud allegation, the Government pointed to testimony

23 that Botti had sent Greg Fracassini and Dan Witkins to testify

24 in favor of the 828 Project before the Planning and Zoning

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 1 Commission in June 2006 and instructed them “to lie about

2 their association with him.” The Government argued that this

3 testimony was highly influential in securing the Planning and

4 Zoning Commission’s approval of the 828 Project, which was a

5 condition precedent to Botti’s securing the multi-million

6 dollar financing from NewAlliance Bank.

7 The Government’s proposed instruction on the honest

8 services mail fraud count specified that its sole theory of

9 honest services fraud was bribery. The Government’s proposed

10 jury instruction provided:

11 A government official who uses his or her public
12 position for self-enrichment breaches the duty of
13 honest service owed to the public and the
14 government. So, for instance, a public official
15 who accepts a bribe or corrupt payment breaches
16 the duty of honest, faithful, and disinterested
17 service. While outwardly appearing to be
18 exercising independent judgment in his or her
19 official work, the public official instead has
20 been paid privately for his or her public
21 conduct. Thus, the public is not receiving the
22 public official’s honest and faithful service to
23 which it is entitled.
24
25 The Government alleges that defendant JAMES
26 BOTTI engaged in a scheme to defraud the citizens
27 of Shelton, Connecticut of the intangible right
28 to the honest services of its public officials by
29 providing benefits to such officials with intent
30 to influence such officials. Where there is a
31 stream of benefits arranged by the payor to favor
32 a public official, the Government need not
33 demonstrate that any specific benefit was
34 received by the public official in exchange for a
35 specific official act. In other words, when
36 payments are made by a payor to a public official
37 with the intent to retain that official’s

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 1 services on an “as needed” basis so that when the
2 opportunity presents itself that public official
3 will take specific official action on the payor’s
4 behalf, that constitutes a breach of the public
5 official’s duty of honest services. Previously,
6 in Request #34, I defined for you the definition
7 of a “bribe” and you may refer to that definition
8 in considering whether defendant JAMES BOTTI
9 engaged in a scheme to defraud the public of its
10 intangible right to the honest services of its
11 public officials.
12
13 Request #34, the request relating to the § 666 bribery

14 charge, defined a bribe as “a corrupt payment that a

15 person provides to a public official with the intent to

16 influence the official in the performance of his or her

17 public duties.”

18 At the charge conference, Botti’s counsel stated that he

19 was not comfortable with the Government’s proposed instruction

20 on honest services fraud because “it seems to be so skewed to

21 the allegations here. . . . It is not, I don’t think, a

22 generic definition of theft of honest services. It is a

23 description of theft of honest service as alleged in this

24 case.” Botti’s attorney ultimately did not object to the

25 instruction, did not offer alternative wording when given the

26 opportunity, and stated that he would defer to the District

27 Court regarding the jury instruction.

28 The District Court began its charge to the jury by

29 handing out copies of the redacted indictment and reading most

30 of it to the jury. The District Court instructed the jury on

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 1 the bribery charge as the Government had requested, and read

2 the relevant statute to the jury. The District Court defined

3 the elements of the offense of bribery as follows:

4 First, at the time alleged in the indictment
5 . . . Public Official 1, was an agent of the city of
6 Shelton, Connecticut; second, that the City of
7 Shelton received federal benefits in excess of
8 $10,000 in a one-year period; third, that defendant
9 gave or agreed to give or offered something of value
10 to [Public Official 1]; fourth, that the defendant
11 acted corruptly with the intent to influence or
12 reward [Public Official 1] with respect to a
13 transaction of the City of Shelton; fifth, that the
14 value of the transaction to which the payment
15 related was at least $5,000.
16
17 Turning to the honest services mail fraud count, the

18 District Court read the allegations in the indictment and the

19 relevant statutory provisions to the jury. The District Court

20 then explained the elements:

21 First, that the defendant devised a scheme or
22 artifice. There are two types of schemes charged in
23 Count Three of the indictment. One is a scheme or
24 artifice for obtaining money or property by
25 materially false and fraudulent pretenses,
26 representations or promises, as alleged in the
27 indictment.
28
29 The other is a scheme or artifice to deprive the
30 citizens of Shelton of the intangible right of the
31 honest services of their public officials as alleged
32 in the indictment.
33
34 Second element: That the defendant knowingly and
35 willfully participated in the scheme or artifice,
36 with knowledge of its fraudulent nature and with
37 specific intent.
38

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 1 Third: That in execution of that scheme or artifice,
2 the Defendant used or caused the use of the mails,
3 as specified in the indictment.
4
5 The District Court provided a more truncated explanation of

6 honest services than the charge sought by the Government. The

7 District Court instructed the jury as follows:

8 A public official or local government employee
9 owes a duty of honest, faithful, and
10 disinterested service to the public and to the
11 government that he or she serves. The public
12 relies on officials of the government to act for
13 the public interest not for their own enrichment.
14 A government official who uses his or her public
15 position for self-enrichment breaches the duty of
16 honest service owed to the public and to the
17 Government.
18
19 So, for instance, a public official who accepts a
20 bribe or corrupt payment [breaches] the duty of
21 honest, faithful and disinterested service, while
22 outwardly appearing to be exercising
23 independen[ce] in his or her official work, the
24 public official instead has been paid privately
25 for his or her public conduct. Thus, the public
26 is not receiving the public official’s honest and
27 faithful service to which it is entitled.
28
29 Defense counsel did not object to the instruction.

30 The jury returned a guilty verdict on the honest services

31 mail fraud count. The jury was unable to reach a verdict on

32 the mail fraud count based on deprivation of money or

33 property.

34 After trial, Botti moved for a judgment of acquittal

35 pursuant to Federal Rule of Criminal Procedure 29 and for a

36 new trial pursuant to Federal Rule of Criminal Procedure 33,

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 1 arguing that the evidence of honest services mail fraud was

2 insufficient to support a conviction. In his motion for a

3 judgment of acquittal, Botti argued that none of the testimony

4 relating to bribery of the Mayor of Shelton could be

5 considered in support of his conviction because the jury had

6 not voted to convict Botti of bribery. Botti argued that the

7 remaining evidence of bribes of Planning and Zoning Commission

8 officials was insufficient to support a conviction of honest

9 services fraud.

10 After the Supreme Court issued its opinion in Skilling,

11 130 S. Ct. 2896, Botti submitted a supplemental memorandum in

12 support of his motion for a judgment of acquittal, which

13 argued that the jury charge and verdict form left open the

14 possibility that the jury could have convicted Botti of honest

15 services mail fraud on a non-bribery theory in contravention

16 of the Supreme Court’s holding in Skilling. Botti claimed

17 that the indictment was defective insofar as it did not

18 “specifically allege that the scheme used to commit honest

19 services fraud was bribery”; instead, it “indicat[ed] a

20 general theory of honest services mail fraud, namely, that

21 defendant contrived a scheme or artifice to defraud by means

22 of fraudulent pretenses or misrepresentations.” Botti argued

23 that the Government’s proposed instruction—with which defense

24 counsel had expressed discomfort at the charge conference—

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 1 would have complied with Skilling because it specified that

2 the Government’s theory of honest services mail fraud was

3 bribery. However, he claimed that the instruction actually

4 given to the jury did not comply with Skilling because it

5 conflated “general self-enrichment” with “actual bribery.”

6 Botti argued that the jury charge was defective because it

7 “did not limit self-enrichment to bribery as required by

8 Skilling, but rather referred to bribery as illustrative.”

9 The District Court denied Botti’s motions for a judgment

10 of acquittal and for a new trial. The District Court found

11 that there was “ample evidence that Botti extended numerous

12 favors to several Shelton public servants for the purpose of

13 obtaining in return favorable action on his development

14 applications, particularly the 828 Project, in derogation of

15 the Shelton citizenry’s right to their public servants’ honest

16 services.” The District Court rejected Botti’s argument that

17 the jury’s failure to return a verdict on the bribery charge

18 necessarily meant that the evidence of honest services fraud

19 was insufficient to support a guilty verdict. The District

20 Court first noted that in Yeager v. United States, 557 U.S.

21 110 (2009), the Supreme Court had instructed courts not to

22 attribute any meaning to the failure to return a verdict.

23 Furthermore, the District Court found that the evidence

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 1 produced at trial was sufficient to support Botti’s conviction

2 for honest services mail fraud.

3 With respect to Botti’s objection to the jury charge

4 based on Skilling, the Court determined:

5 There is no substance to this argument.
6 Botti nowhere suggests what this alternative,
7 constitutionally impermissible theory of
8 wrongdoing might be. That is not surprising,
9 since there is no evidence in the record of any
10 sort of wrongdoing other than Botti’s bribery of
11 public officials. The indictment did not charge
12 any alternative theory. Neither the government
13 nor the defendant argued any other theory at
14 trial. Neither the jury charge nor the verdict
15 form suggests any other theory. There were no
16 facts, evidence or testimony presented at trial
17 that could reasonably support or give rise to an
18 alternative theory. Botti suggests none. To
19 conclude that the jury might have convicted the
20 Defendant on some theory of honest services mail
21 fraud other than the bribery theory suggested in
22 the jury charge would require pure speculation on
23 the Court’s part, and an assumption that the jury
24 acted in an unreasonable manner in contriving
25 some grounds for conviction other than the
26 obvious one clearly supported by the record.
27
28 Accordingly, the District Court denied the post-trial motions.

29 This appeal followed.

30 DISCUSSION

31 I.

32 The first issue is what standard of review applies to

33 Botti’s claim of error. Generally, the propriety of jury

34 instructions is a matter of law that is reviewed de novo.

35 United States v. Bahel, 662 F.3d 610, 634 (2d Cir. 2011). “A

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 1 jury instruction is erroneous if it misleads the jury as to

2 the correct legal standard or does not adequately inform the

3 jury on the law.” Id. (quoting United States v. Bok, 156 F.3d

4 157, 160 (2d Cir. 1998)) (internal quotation marks omitted).

5 If the defendant objected to an erroneous jury

6 instruction at trial and raises the same claim of error on

7 appeal, a harmless error standard of review applies. See,

8 e.g., United States v. George, 266 F.3d 52, 58 (2d Cir. 2001),

9 vacated in part on other grounds, 386 F.3d 383 (2d Cir. 2004).

10 Under this standard of review, a conviction will be affirmed

11 only “if it is clear beyond a reasonable doubt that a rational

12 jury would have found the defendant guilty absent the error.”

13 United States v. Mahaffy, 693 F.3d 113, 136 (2d Cir. 2012)

14 (quoting United States v. Kozeny, 667 F.3d 122, 130 (2d Cir.

15 2011)) (internal quotation marks omitted).

16 If the defendant did not object to an erroneous jury

17 instruction before the jury retired to consider its verdict, a

18 plain error standard of review applies. See Johnson v. United

19 States, 520 U.S. 461, 465-66 (1997) (citing Fed. R. Crim. P.

20 30); Bahel, 662 F.3d at 634. Under this standard of review,

21 the Court of Appeals has discretion to reverse only if the

22 instruction contains “(1) error, (2) that is plain, and (3)

23 that affect[s] substantial rights.” Johnson, 520 U.S. at 467

24 (quoting United States v. Olano, 507 U.S. 725, 732 (1993))

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 1 (internal quotation marks omitted and alteration in original).

2 If those three conditions are met, a court may exercise its

3 discretion to correct the error only if the error “seriously

4 affect[ed] the fairness, integrity or public reputation of

5 judicial proceedings.” Id. at 467 (quoting Olano, 507 U.S. at

6 732) (internal quotation marks omitted).

7 Botti argues that he objected to the jury instruction,

8 and therefore, a traditional harmless error standard of review

9 should apply. This argument is without merit. Defense

10 counsel’s objection to the proposed instruction at the charge

11 conference was not based on the instruction’s failure

12 expressly to limit honest services fraud to bribery and

13 kickback schemes. Rather, Botti’s counsel objected to the

14 instruction because it was “so skewed to the allegations

15 here,” and it was not “a generic description of theft of

16 honest services.” In short, Botti objected because the

17 proposed instruction was too focused on bribery as the means

18 for committing honest services fraud, not because it lacked

19 that focus. These circumstances come close to a waiver of any

20 appellate challenge to the instruction for failing to limit

21 honest services mail fraud to bribery. See United States v.

22 Quinones, 511 F.3d 289, 321-23 (2d Cir. 2007) (discussing true

23 waiver). In any event, because Botti did not object at trial

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 1 on the grounds raised in this appeal, harmless error review

2 does not apply.

3 Nor is modified plain error review warranted here. See

4 United States v. Viola, 35 F.3d 37, 42 (2d Cir. 1994) (placing

5 the burden on the Government “to show that plain error in

6 light of a supervening decision did not affect substantial

7 rights”). The Supreme Court’s decision in Johnson v. United

8 States, 520 U.S. 461, called into question the modified plain

9 error standard of review that this Court established in Viola.

10 In Johnson, the defendant had been charged with making a false

11 material declaration under oath before a grand jury in

12 violation of 18 U.S.C. § 1623. 520 U.S. at 463. The District

13 Court instructed the jury that materiality was a question for

14 the judge to decide, and the defense did not object. Id. at

15 464. The trial judge ultimately found that the statements

16 were material, and the jury returned a verdict of guilty. Id.

17 After Johnson’s conviction, but before her appeal to the Court

18 of Appeals, the Supreme Court decided United States v. Gaudin,

19 515 U.S. 506 (1995), which established that a jury must decide

20 materiality. Johnson, 520 U.S. at 464. When Johnson’s case

21 reached the Supreme Court, the Court applied plain error

22 review without mentioning modified plain error review. Id. at

23 466-67. The Court found that the failure to instruct the jury

24 that materiality was an element of the offense was error and

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 1 that it was plain. Id. at 467-68. The Court did not decide

2 the third element—whether the forfeited error affected

3 substantial rights—because the Court determined that the

4 satisfaction of the first three factors only gave the Court

5 discretion to correct the error if the error seriously

6 affected the fairness, integrity, or public reputation of the

7 judicial proceedings. Id. at 468-70. The Court never placed

8 the burden of proof on the Government. See id. at 470.

9 Indeed, the Court cautioned against any unwarranted expansion

10 of or creation of any exceptions to the plain error rule in

11 Rule 52(b) of the Federal Rules of Criminal Procedure. Id. at

12 466. In the final step of its analysis, the Court evaluated

13 whether the defendant had presented a plausible argument that

14 the error in the charge had affected the fairness, integrity,

15 or public reputation of the proceedings. The Court concluded

16 that the error did not seriously affect “the fairness,

17 integrity or public reputation of judicial proceedings” and

18 affirmed the judgment of the Court of Appeals sustaining the

19 conviction. Id. at 470.

20 Without deciding whether Johnson overruled Viola, this

21 Court has frequently declined to reach the question of whether

22 the modified plain error standard of review continues to apply

23 when there has been a supervening change in the law after a

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 1 conviction.2 See, e. g., United States v. Nouri, No. 09-3627-

2 CR, 2013 WL 780918, at *6 n.2 (2d Cir. Mar. 4, 2013); Bahel,

3 662 F.3d at 634; Henry, 325 F.3d 93, 100 n.4 (2d Cir. 2003);

4 United States v. Outen, 286 F.3d 622, 639 n.18 (2d Cir.

5 2002).3 In this case, it is also unnecessary to decide

6 whether the modified plain error standard of review survived

7 Johnson because the rationale animating the modified plain

8 error standard of review—that the defendant should not have to

9 show prejudice from an error when the defendant did not

10 contribute to the error and had no basis to object to the

11 error—does not apply. See Viola, 35 F.3d at 42-43. In Viola,

12 this Court explained that the purpose of the modified plain

13 error standard of review was to avoid insisting on “an

14 omniscience on the part of defendants about the course of the

2
In Mahaffy, 693 F.3d 113, this Court applied modified plain
error analysis. Id. at 136. However, in Mahaffy, the
defendant had objected at trial on the grounds raised in his
appeal. Id. at 122. Therefore, it would not have been unfair
to place the burden on the Government to show that the error
had not prejudiced the defendant.
3
Under similar circumstances, other Courts of Appeals apply
the traditional plain error standard of review. See, e.g.,
United States v. Pelisamen, 641 F.3d 399, 404 (9th Cir. 2011)
(applying a plain error standard of review in a case where
“there were no legal grounds for challenging the instructions
at the time they were given, but such legal grounds ha[d]
since arisen due to a new rule of law arising between the time
of conviction and the time of appeal”); see also id. at 404-05
(collecting cases and explaining that no Court of Appeals
other than the Court of Appeals for the Second Circuit has
adopted the modified plain error standard of review).

-22-
 1 law that we do not have as judges.” 35 F.3d at 42. At

2 Botti’s trial, the Government sought an instruction that

3 plainly would have established bribery as the only basis for

4 the honest services mail fraud charge alleged in this case.

5 Botti’s counsel resisted that instruction because it was “so

6 skewed” to the allegations against Botti. Modified plain

7 error review should not apply when it is the defendant’s

8 discomfort with the proposed jury instruction that contributed

9 to the error about which the defendant now complains.

10 Accordingly, in this case, the instruction will be reviewed

11 under the traditional plain error standard.

12 II.

13 Under a plain error standard of review, if this Court

14 finds that the jury instruction (i) was error; (ii) that the

15 error was plain; and (iii) that the error affected substantial

16 rights, then this Court (iv) has discretion to correct the

17 error, “but [it] is not required to do so.” See Olano, 507

18 U.S. at 735; see also Fed. R. Crim. P. 52(b). It is well

19 established that “the discretion conferred by Rule 52(b)

20 should be employed in those circumstances in which a

21 miscarriage of justice would otherwise result.” Olano, 507

22 U.S. at 736 (quoting United States v. Young, 470 U.S. 1, 15

23 (1985)) (internal quotation marks omitted). Accordingly, if

24 the first three conditions are met, this Court should exercise

-23-
 1 its discretion to correct the error only if it “seriously

2 affect[ed] the fairness, integrity or public reputation of

3 judicial proceedings.” Johnson, 520 U.S. at 470 (alteration

4 in original and citation omitted).

5 A.

6 In this case, the failure of the jury instruction to

7 specify that the Government was required to prove honest

8 services mail fraud by a bribery or kickback scheme was plain

9 error, satisfying the first two Olano factors. Error is

10 deviation from a legal rule, unless the rule has been waived

11 by “intentional relinquishment or abandonment of a known

12 right.” Olano, 507 U.S. at 732-33 (quoting Johnson v. Zerbst,

13 304 U.S. 458, 464 (1938)). Error is plain if it is clear or

14 obvious. Olano, 507 U.S. at 734. “Whether an error is

15 ‘plain’ is determined by reference to the law as of the time

16 of appeal.” United States v. Garcia, 587 F.3d 509, 520 (2d

17 Cir. 2009) (quoting United States v. Gamez, 577 F.3d 394, 400

18 (2d Cir. 2009) (per curiam)) (quotation marks omitted); see

19 also Henderson v. United States, 133 S. Ct. 1121, 1130-31

20 (2013) (holding that regardless of whether a legal question

21 was settled or unsettled at the time of trial, a court of

22 appeals is bound to apply the law as it exists at the time of

23 appeal).

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 1 The Supreme Court held in Skilling that the honest

2 services fraud encompassed by 18 U.S.C. § 1346 must be limited

3 to schemes involving bribes or kickbacks in order to avoid due

4 process concerns. See 130 S. Ct. at 2931. Botti correctly

5 argues that the District Court’s jury instruction on honest

6 services mail fraud failed to anticipate and, therefore, to

7 satisfy this requirement because it employed language broad

8 enough to encompass a non-bribery theory, which the Supreme

9 Court found unconstitutional in Skilling. This Court has held

10 that, after Skilling, it is error for a district court to fail

11 to limit honest services fraud to bribery or kickback schemes

12 in the jury instructions. See, e.g., United States v. Bruno,

13 661 F.3d 733, 740 (2d Cir. 2011). Because the District

14 Court’s instruction did not specify that only bribes or

15 kickbacks could support an honest services mail fraud

16 conviction, it was plainly erroneous.

17 B.

18 In this case, however, Botti has failed to establish that

19 the plain error in the charge affected his substantial rights.

20 When evaluating the effect of an allegedly erroneous jury

21 instruction, the jury charge must be read as a whole. See

22 generally United States v. Allah, 130 F.3d 33, 42 (2d Cir.

23 1997) (collecting cases). This Court has reversed in cases

24 tried before Skilling and decided on appeal after Skilling

-25-
 1 where the Government argued a non-bribery or -kickback scheme

2 theory of honest services mail fraud, or where the Government

3 intertwined an alternative theory with a bribery or kickback

4 scheme theory. See, e.g., Mahaffy, 693 F.3d at 136; Bruno,

5 661 F.3d at 739-40; see also United States v. Hornsby, 666

6 F.3d 296, 306-07 (4th Cir. 2012); United States v. Wright, 665

7 F.3d 560, 570-72 (3d Cir. 2012); United States v. Riley, 621

8 F.3d 312, 321-24 (3d Cir. 2010). In contrast, in cases tried

9 before Skilling and decided on appeal after Skilling where the

10 jury instruction did not specify that a guilty verdict could

11 be returned only if the jury found that the defendant engaged

12 in a bribery or kickback scheme, but the evidence would

13 support only a bribery or kickback scheme theory, this Court

14 has affirmed. See, e.g., Nouri, 2013 WL 780918, at *5-*8; see

15 also United States v. Andrews, 681 F.3d 509, 521 (3d Cir.

16 2012); United States v. Spellissy, 438 F. App’x 780, 783-84

17 (11th Cir. 2011) (affirming the denial of a petition for a

18 writ of error coram nobis); see generally Andrews, 681 F.3d at

19 521-28 (collecting cases). This is such a case.

20 Botti is correct that, after Skilling, a jury instruction

21 must require the jury to find that the defendant participated

22 in honest services mail fraud by way of a bribery or kickback

23 scheme. However, it does not follow that reversal is

24 necessary in every case in which the District Court erred by

-26-
 1 failing to give that instruction. Viewing the erroneous jury

2 instruction in this case in light of the charge as a whole and

3 in the context of proceedings in which deprivation of honest

4 services by bribery was the only theory that the evidence

5 would support and the only theory that the Government argued

6 at trial, the District Court’s failure to limit honest

7 services mail fraud to a bribery or kickback scheme did not

8 affect Botti’s substantial rights.

9 i.

10 Bribery is the only theory of honest services fraud that

11 the Government presented in the indictment or argued at trial,

12 and the District Court’s instructions on the mail fraud charge

13 reflected that. The District Court began its instructions by

14 reading most of the indictment to the jury. The indictment

15 detailed extensive allegations of Botti’s providing public

16 officials with money and other benefits in order to secure

17 approval for certain development projects. The District Court

18 instructed the jury on the bribery count, during which it

19 defined a bribe as “a corrupt payment that a person provides

20 to a public official with the intent to influence the official

21 in the performance of his or her public duties.” The District

22 Court then directed the jury to Count Three of the indictment,

23 the mail fraud charge, read the allegations and the relevant

24 statutory provisions, and explained the elements of the

-27-
 1 offense. Although the District Court did not explain that

2 bribery is the only theory that can support a conviction of

3 honest services mail fraud, bribery is the only example it

4 provided of how the Government could prove the honest services

5 deprivation prong of mail fraud. This is not a case where the

6 charge was interwoven with an alternative theory of how the

7 public could have been deprived of the honest services of its

8 officials such as by a conflict of interest theory, see, e.g.,

9 Bruno, 661 F.3d at 739-40.

10 Botti argues that “[t]he District Court’s instruction

11 allowed the payment of a bribe to be but one of many paths

12 rather than the only path” to conviction of honest services

13 mail fraud. He suggests several potential alternative

14 theories that could have supported his conviction. These

15 theories are divorced from the context of the trial and cannot

16 plausibly explain the jury’s guilty verdict.

17 Botti argues that the definition of “scheme or artifice”

18 that the District Court provided allowed the jury to convict

19 him of honest services mail fraud based simply on a finding of

20 fraud, deception, or misrepresentation. The District Court

21 defined “scheme or artifice” as “a plan for the accomplishment

22 of an object,” and “a scheme to defraud” as,

23 [A]ny plan . . . or course of action to obtain money
24 or property or the intangible right of honest
25 services by means of materially false or fraudulent

-28-
 1 pretenses, representations, and promises reasonably
2 calculated to deceive persons of average prudence
3 . . . a plan to deprive another of money or property
4 or of the intangible right to honest services by
5 trick, deceit, deception, or swindle.
6
7 The District Court provided these definitions within the

8 larger explanation that the scheme or artifice element of

9 honest services mail fraud required “a scheme or artifice to

10 deprive the citizens of Shelton of the intangible right of the

11 honest services of the officials as alleged in the

12 indictment.”

13 In context, the jury could not have understood this

14 definition as anything more than a basic definition of a

15 scheme or artifice to defraud. The jury could not have

16 understood the definition as providing an independent theory

17 of honest services fraud. Mail fraud requires both a scheme

18 or artifice to defraud and an object of that fraud.

19 Pasquantino v. United States, 544 U.S. 349, 355 (2005). At

20 trial, the Government presented two theories of mail fraud,

21 each with distinct objects: (i) a scheme to obtain money

22 fraudulently from NewAlliance Bank, and (ii) a scheme to

23 deprive the citizens of Shelton of the honest services of

24 their public officials by bribery. The victim of the scheme

25 to obtain money fraudulently was NewAlliance Bank, whereas the

26 victims of the honest services fraud scheme were the citizens

27 of Shelton. The District Court made this clear when, at

-29-
 1 several points in the charge it clarified that, with respect

2 to the honest services charge, it was the public, or the

3 “citizens of Shelton,” who were the victims of the scheme or

4 artifice to defraud, and the District Court specified that the

5 trick or swindle involved in a bribe was that the bribee,

6 “while outwardly appearing to be exercising independen[ce] in

7 his or her official work . . . instead has been paid privately

8 for his or her public conduct.” Because the jury charge

9 cannot be read as endorsing, or even suggesting, a theory of

10 honest services mail fraud that is predicated on a

11 freestanding or amorphous swindle or trick, this theory cannot

12 explain the jury’s verdict.

13 Botti also argues that the jury could have convicted him

14 of honest services mail fraud based on the failure to disclose

15 the business relationship he had with Fracassini and Witkins

16 who testified on Botti’s behalf before the Planning and Zoning

17 Commission. Therefore, Botti argues that the jury instruction

18 permitted the jury to convict him based on his deception of

19 the Planning and Zoning Commission. However, the Government

20 did not suggest to the jury that sending employees to a public

21 meeting to advocate for Botti’s interests without disclosing

22 that they worked for Botti constituted honest services mail

23 fraud. The deception of the Planning and Zoning Commission

24 was used as an instance of the misrepresentations that Botti

-30-
 1 had used to obtain approval for the 828 Project from the

2 Planning and Zoning Commission and, as a result, financing

3 from NewAlliance Bank.

4 Moreover, the jury could not have convicted Botti of

5 honest services mail fraud on the basis of the deception of

6 the Planning and Zoning Commission consistent with the

7 District Court’s instructions. The honest services fraud

8 instruction was based upon the premise that “[a] public

9 official or local government employee owes a duty of honest,

10 faithful, and disinterested service to the public and to the

11 government that he or she serves.” Thus, the District Court

12 clarified, the public may be deprived of that right when an

13 official “uses his or her public position for self-enrichment”

14 by, for example, taking a bribe, because the official is no

15 longer “exercising independen[ce] in his or her official

16 work,” and the public is not receiving the public official’s

17 “honest and faithful service to which it is entitled.” This

18 definition of honest services mail fraud requires that a

19 public official be working dishonestly, unfaithfully, or

20 interestedly. A public official who has been deceived could

21 not reasonably fall within such a definition.

22 Botti also suggests that the jury could have relied on

23 evidence of self-enrichment without bribery to satisfy the

24 honest services prong of mail fraud. However, the District

-31-
 1 Court’s use of the term “self-enrichment” in the jury

2 instruction plainly encompassed bribery. There is no

3 reasonable view of the evidence that would support a finding

4 that the public officials enriched themselves other than

5 through the receipt of bribes. In this case, the Government

6 did not offer any alternative theory of self-enrichment, such

7 as through a conflict of interest scheme. See, e.g., Bruno,

8 661 F.3d at 740.

9 In two footnotes in his briefs to this Court, Botti

10 suggests that the jury could have convicted him of honest

11 services mail fraud based on his provision to Shelton public

12 officials of “gifts and benefits” that did not constitute

13 bribes. This cursory argument is not a basis for reversal.

14 “It is a settled appellate rule that issues adverted to in a

15 perfunctory manner, unaccompanied by some effort at developed

16 argumentation, are deemed waived. This rule has particular

17 force where an appellant makes an argument only in a

18 footnote.” Niagara Mohawk Power Corp. v. Hudson River-Black

19 River Regulating Dist., 673 F.3d 84, 107 (2d Cir. 2012)

20 (quoting Tolbert v. Queens Coll., 242 F.3d 58, 75 (2d Cir.

21 2001)) (quotation marks omitted).

22 Moreover, a gifts or benefits theory of honest services

23 mail fraud is inconsistent with the trial record. The

24 indictment charged and the trial record supported that the

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 1 gifts Botti gave to the Shelton public officials were in

2 exchange for favorable actions that they took for him. With

3 respect to the Mayor, the indictment charged and the evidence

4 supported that Botti provided benefits to the Mayor of Shelton

5 from about 2002 to 2006 and that he “expected that the

6 benefits he provided to [the Mayor of Shelton] would result in

7 favorable treatment for Botti and his construction projects.”

8 Such a pattern of behavior is sufficient to establish bribery:

9 [I]n order to establish the quid pro quo essential
10 to proving bribery, the government need not show
11 that the defendant intended for his payments to be
12 tied to specific official acts (or omissions).
13 Rather, bribery can be accomplished through an
14 ongoing course of conduct, so long as evidence shows
15 that the favors and gifts flowing to a public
16 official [are] in exchange for a pattern of official
17 actions favorable to the donor.
18
19 Bahel, 662 F.3d at 635 (internal quotations marks and

20 citations omitted).

21 The Government also contended and the evidence supported

22 that the benefits that Botti gave to the members of the

23 Planning and Zoning Commission were made in exchange for their

24 support for the 828 Project. The gifts to the members of the

25 Planning and Zoning Commission were charged in the portion of

26 the redacted indictment under the heading, “Botti Provides

27 Things of Value to Public Officials For Their Assistance.”

28 The Government’s Request to Charge explained its theory of

29 honest services fraud as alleging the following:

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 1 [Botti] engaged in a scheme to defraud the citizens
2 of Shelton, Connecticut of the intangible right to
3 the honest services of its public officials by
4 providing benefits to such officials with intent to
5 influence such officials. Where there is a stream
6 of benefits arranged by the payor to favor a public
7 official, the Government need not demonstrate that
8 any specific benefit was received by the public
9 official in exchange for a specific official act.
10
11 It was unnecessary for the District Court “to use the magic

12 words ‘corrupt intent’ or ‘quid pro quo’ to effectively charge

13 a jury on bribery.” See Bahel, 662 F.3d at 635.

14 Botti’s alternative theories are contrary to the only

15 theory of honest services mail fraud that the Government

16 actually presented to the jury and that the Government asked

17 the Court to explain as its theory. Accordingly, these

18 alternative theories do not demonstrate that Botti’s

19 conviction was based on a non-bribery theory of honest

20 services mail fraud.4

4
Botti also argues that the jury’s failure to return a guilty
verdict on the bribery charge demonstrates that it could not
have convicted him of honest services mail fraud on a bribery
theory. This argument is without merit.
The Supreme Court has instructed lower courts not to
attempt to divine the meaning of a hung count when analyzing a
unanimous verdict on another count. See Yeager, 557 U.S. at
121-22. Botti attempts to distinguish Yeager on the basis
that it involved a hung jury and an acquittal, whereas this
case involves a hung jury and a conviction. However, the
reasoning in Yeager was not as limited as Botti suggests. Id.
at 120-22. The Court explained that “conjecture about
possible reasons for a jury’s failure to reach a decision
should play no part in assessing the legal consequences of a
unanimous verdict that the jurors did return.” Id. at 122.

-34-
 1 ii.

2 Finally, assuming that we had discretion to reverse the

3 conviction, we would not exercise that discretion in this case

4 because the error did not “seriously affect the fairness,

5 integrity or public reputation of judicial proceedings.”

6 Johnson, 520 U.S. at 470 (alteration omitted). The Government

7 sought a proper instruction that would have obviated the error

8 in the jury charge and the defense demurred because that

9 charge hewed too closely to the actual proof in the case. The

10 evidence of the bribe-based honest services mail fraud was

11 overwhelming and there was no other plausible theory presented

12 to the jury. On this record, it cannot be said that the error

13 seriously affected the fairness, integrity, or public

14 reputation of the judicial proceedings.

Botti asks this Court to intuit the jury’s logic in
returning a conviction on the honest services mail fraud
charge by analyzing the bribery charge on which the jury was
unable to reach a verdict. Yeager forecloses this approach.
See, e.g., Hornsby, 666 F.3d at 305 n.4 (rejecting the
argument that if “bribes were the dominant theory used to
convict [the defendant], then the jury would have found him
guilty of the counts that deal directly with facts supporting
[the defendant]’s receipt of money”).
Moreover, this would be a particularly inappropriate case
to find an exception to Yeager. The honest services mail
fraud charge of which Botti was convicted charged a scheme
from in or about 2002 to defraud the citizens of Shelton of
the honest services of the Mayor of Shelton and of other
Shelton public officials. Unlike the bribery count, it was
not limited to a single instance of providing money to the
Mayor of Shelton in or about June 2006.

-35-
1 CONCLUSION

2 We have considered all of the arguments of the parties.

3 To the extent not specifically addressed above, they are

4 either moot or without merit. For the reasons explained

5 above, we AFFIRM the judgment of the District Court.

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