03-1448-cr
US A v. G anim
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2006
(Argued: June 15, 2007 Decided: December 4, 2007)
Docket No. 03-1448-cr
_____________________________________________
UNITED STATES OF AMERICA,
Appellee,
– v. –
JOSEPH P. GANIM,
Defendant-Appellant.
____________________________________________
Before JACOBS, Chief Judge,
SOTOMAYOR and WESLEY, Circuit Judges.
____________________________________________
Defendant-Appellant Joseph Ganim (“Ganim”), the former mayor of Bridgeport,
Connecticut, appeals from the judgment of the United States District Court for the District of
Connecticut, convicting him, after a jury trial, of racketeering in violation of 18 U.S.C.
§ 1962(c); racketeering conspiracy in violation of 18 U.S.C. § 1962(d); extortion in violation of
18 U.S.C. § 1951; honest services mail fraud in violation of 18 U.S.C. §§ 1341 & 1346; bribery
involving programs receiving federal funds in violation of 18 U.S.C. § 666(a)(1)(B); conspiracy
to commit bribery in violation of 18 U.S.C. § 371; and filing false income tax returns in violation
of 26 U.S.C. § 7206(1). In this opinion, we reject Ganim’s claim that the jury instructions on the
bribery-related offenses were erroneous, and hold that the government was not required to prove
a direct link between a benefit Ganim received and a specific act he performed, so long as the
government proved that Ganim received benefits in exchange for his agreement to perform
specific official acts or to do so as the opportunities arose. We AFFIRM the judgment below.
SANDRA S. GLOVER, Assistant United States
Attorney (Ronald S. Apter, Special Assistant United
States Attorney, William J. Nardini, Assistant
United States Attorney, on the brief), for Kevin J.
O’Connor, United States Attorney for the District of
Connecticut, New Haven, Connecticut, for
Appellee.
ERIC W. BLOOM, Winston & Strawn LLP,
Washington, D.C. (Peter Goldberger, Pamela A.
Wilk, Alan Ellis, Law Offices of Alan Ellis,
Ardmore, Pennsylvania, Edwin H. Caldie, Winston
& Strawn LLP, Washington, D.C., on the brief), for
Defendant-Appellant.
SOTOMAYOR, Circuit Judge:
Defendant-appellant Joseph P. Ganim (“Ganim”), the former mayor of Bridgeport,
Connecticut, appeals from the judgment of the United States District Court for the District of
Connecticut (Arterton, J.). Ganim was convicted, after a jury trial, of racketeering in violation of
18 U.S.C. § 1962(c); racketeering conspiracy in violation of 18 U.S.C. § 1962(d); extortion in
violation of 18 U.S.C. § 1951; honest services mail fraud in violation of 18 U.S.C. §§ 1341 &
1346; bribery involving programs receiving federal funds in violation of 18 U.S.C.
§ 666(a)(1)(B); conspiracy to commit bribery in violation of 18 U.S.C. § 371; and filing false
income tax returns in violation of 26 U.S.C. § 7206(1). Ganim was sentenced principally to 108
months’ imprisonment for his offenses.
On appeal, Ganim contends that in order to prove his guilt (on all but the tax crimes), the
government was required to link each alleged benefit Ganim received to a specific official act he
performed.1 We hold that the government was not required to allege or to prove that type of
1
Ganim advances no argument—save a conclusory one in a footnote of his reply brief—
why his conviction on the tax crimes (Counts 22 and 23) would be affected by his arguments
concerning the bribery-related crimes. We decline to consider his belated and buried argument,
see United States v. Gabriel, 125 F.3d 89, 100 n.6 (2d Cir. 1997), abrogated on other grounds by
Arthur Andersen LLP v. United States, 544 U.S. 696 (2005), as recognized in United States v.
Quattrone, 441 F.3d 153, 176, 180 n.28 (2d Cir. 2006), and note only that the tax crimes for
which he was convicted do not depend on whether the income he failed to report was obtained
2
direct link, and conclude that the jury was properly charged on the law. In a separate summary
order filed today, we reject Ganim’s other challenges to his conviction and sentence, and hold
that: (1) the indictment and bills of particular sufficiently informed Ganim of the charges against
him; (2) the prosecutor’s closing remarks did not amount to misconduct warranting reversal; (3)
the district court did not err in declining to recess jury deliberations after a juror reported that she
may have been fired from her job; and (4) Ganim’s resentencing process under United States v.
Crosby, 397 F.3d 103 (2d Cir. 2005) was constitutional and his sentence was reasonable. We
AFFIRM the judgment below.
BACKGROUND
I. Offense Conduct2
Ganim served as the mayor of Bridgeport, Connecticut (the “City”) from 1991 through
the time of his conviction in 2003. As mayor, Ganim was responsible for the overall operation of
municipal government and, among other responsibilities, had final authority over the City’s
contracts. During his first campaign for mayor, Ganim became acquainted with Leonard J.
Grimaldi (“Grimaldi”), who acted as a media advisor, and Paul J. Pinto (“Pinto”), who began as
his driver and aide. Ganim developed close relationships with Grimaldi and Pinto over the years
that followed. Grimaldi subsequently formed a public relations company called Harbor
Communications, of which he was the sole proprietor and employee. Pinto became associated
legally or not.
2
The following account of Ganim’s criminal conduct is drawn from the evidence the
prosecution adduced at trial, primarily the testimony of the cooperating witnesses Leonard J.
Grimaldi and Paul J. Pinto, presented in the light most favorable to the guilty verdict. See United
States v. Males, 459 F.3d 154, 155 (2d Cir. 2006).
3
with (and later purchased an ownership interest in) the Kasper Group, a Bridgeport architecture
and engineering firm.
A. PSG Contract Bid
In 1995 and 1996, Bridgeport was considering privatizing its wastewater treatment
facilities. Ganim suggested that Grimaldi contact Professional Services Group (“PSG”) to act as
PSG’s public relations consultant in connection with its bid for the water treatment contract.
Grimaldi then contacted PSG, which retained him as a consultant for a fee of $30,000. PSG
submitted a proposal for the contract, as did U.S. Water, a competing firm which was represented
by Pinto and by United Properties. The owners of United Properties, Albert Lenoci, Sr. and
Albert Lenoci, Jr. (the “Lenocis”), were Ganim’s political benefactors.
After the bids were submitted, Ganim told Pinto that he had decided to award the contract
to PSG, but that Pinto should arrange a financial deal between PSG and United Properties
because Ganim did not want to choose between big supporters. Ganim told Pinto that “[i]f they
want the deal, they’ll do it.” In turn, Pinto explained to Grimaldi that if PSG wanted to win the
contract, it would have to “take care of the Lenocis.” Grimaldi acquiesced, as did PSG upon his
advice. PSG agreed to pay Grimaldi $70,000 more per year for the contract’s duration, which he
was to pass on to Pinto and the Lenocis. Pinto informed Ganim of the deal, and Ganim approved
the selection of PSG to operate the wastewater treatment facilities.
Between May 1997 and April 1999, PSG paid Grimaldi roughly $311,396 in consulting
fees, much but not all of which Grimaldi paid to Pinto. Grimaldi and Pinto used some portion of
this money to provide Ganim benefits such as entertainment, meals and clothing.
4
B. Fifty-Fifty Fee Sharing Agreement
In December 1996, Ganim traveled with Pinto and Grimaldi to Tucson, Arizona. During
the trip, Ganim told them they should “join forces” by agreeing to split any consulting fees they
earned through future dealings with the City, and that Ganim would steer contracts to the pair, in
return for which they would “tak[e] care of” his expenses and needs. Upon returning to
Bridgeport, the three men met to confirm the agreement. Grimaldi testified that during that
meeting, he and Pinto agreed that:
a portion of that money [from the agreement] would be to take care of [Ganim]. If
he needed cash, we would take care of him. If he needed suits, we’d take care of
him. If he needed shirts, we’d take care of him. Any needs that he required, off of
that 50/50 arrangement, we would take care of [Ganim]. In exchange for that,
[Ganim] would make sure that all of our clients would get work from the city if
they wanted it, that he would steer city contracts and jobs to our clients . . . .
Pursuant to the fee sharing agreement, Ganim steered certain projects (some of which are
discussed below) to Pinto’s and Grimaldi’s clients from February 1997 to April 1999.
Meanwhile, Grimaldi and Pinto provided Ganim with cash, meals, fitness equipment, designer
clothing, wine, jewelry and other items. Also at around that time, Grimaldi employed Ganim’s
wife. At Ganim’s insistence, Grimaldi overpaid her, gave her payments in cash and did not
report her income to the Internal Revenue Service.
C. Bridgeport Energy-Funded Programs
In 1998, Ganim had Grimaldi arrange for Bridgeport Energy—one of Grimaldi’s clients
—to contribute one million dollars to fund a promotional advertising campaign and the City’s
“Clean & Green” program, which demolished and rehabilitated blighted properties. Ganim then
arranged for Grimaldi to oversee the advertising campaign and for one of the Lenocis’ firms,
5
represented by Pinto, to administer the Clean & Green monies. Pursuant to the fee-sharing
agreement, Grimaldi and Pinto used a portion of their consulting fees for these programs to
benefit Ganim.
D. PSG Contract Extension & One-Third-Each Fee Sharing
In late 1998, PSG sought a long-term extension of its contract to operate the City’s
wastewater treatment facilities. In a meeting with Grimaldi and Pinto, Ganim told Grimaldi that
he would support the contract extension. In exchange, Grimaldi was to renegotiate his contract
with PSG to get more of his consulting fees up front. Ganim also directed that the three men
would split those fees—as well as fees from all future deals with the City—one-third each.
Grimaldi was to pay Ganim’s share to Pinto, who would hold the fees for Ganim. Following
these discussions, Grimaldi successfully renegotiated his consulting fees with PSG, such that he
was paid $495,000 in a front-loaded deal. On May 27, 1999, Ganim awarded PSG the contract
extension. Over several weeks Grimaldi paid Pinto roughly two-thirds of the consulting fee, one
third of which was for Ganim. Pinto kept Ganim’s share mixed with his own money to avoid
detection.
Throughout most of 1999, Grimaldi and Pinto provided Ganim—upon his request—with
money and benefits such as wine, cabinets, home improvements and meals. Pinto stated at trial
that “I was holding [Ganim’s] money. When he needed the money, I’d give it to him or use it the
way he directed me to . . . .”
In September 1999, Ganim and Grimaldi had a “falling out,” and eventually Grimaldi
stopped paying Ganim’s portion of the money to Pinto. From that point forward, Ganim shunned
Grimaldi and prevented his clients from obtaining contracts with the City.
6
E. Life Insurance Policy
In early 1999, Ganim sought to use City funds to purchase a one-million-dollar life
insurance policy for himself, as well as for certain City department heads as “cover.” He
approached Frank Sullivan (“Sullivan”), a childhood friend who had become a stockbroker,
about brokering the deal. Ganim approved the purchase of the policies in April 1999 without the
City Council’s approval. After the purchase of the policies was leaked to the media, Ganim
wrote to The Hartford Life Insurance Company to request that his own policy be terminated, but
did not fill out the appropriate paperwork so that the policy would remain in effect. At the end of
the fiscal year, Ganim had the funding for the policies inserted as one of many summary budget
transfers, which were approved by the City Council.
Sullivan received a $17,500 commission for serving as the broker for Ganim’s policy.
Acting on behalf of Ganim, Pinto advised Sullivan that if Sullivan wanted to do more business
with the City, he would have to pay a kickback. Sullivan subsequently paid $5,000 in cash for
Ganim and Pinto to share.
F. Pension Plans
In the fall of 1999, Sullivan sought to become the broker of record for two municipal
pension plans, “Plan A” and “Plan B.” Ganim had Pinto tell Sullivan that if he wanted the
position, Sullivan would have to give fifty percent of his commissions to Ganim and Pinto. With
Ganim’s support, Sullivan was appointed as the broker for the Plan B pension in September
1999. The following year, and again with Ganim’s support, the Director of Finance for the City
of Bridgeport retained Sullivan’s investment firm to assist the city in underwriting the Plan A
pension. Sullivan received $38,000 as the first installment of his brokerage commission, which
7
he intended to split with Pinto and Ganim. They did not request their respective cuts, however,
as they had become anxious about the pending federal investigation against them.
G. Juvenile Detention Facility
In early 1999, the City, pursuant to a State of Connecticut project, was attempting to
condemn property owned by B.C. Sand & Gravel in order to build a juvenile detention facility.
B.C. Sand & Gravel retained Pinto, agreeing to pay him $100,000 if he successfully stopped the
condemnation. Pinto informed Ganim of the agreement, who then exercised his influence to
change the City’s position on the condemnation. The State ultimately abandoned the project,
and, as a result, Pinto received his fee from B.C. Sand & Gravel. Pinto held half of that fee for
Ganim’s benefit pursuant to their usual fee sharing arrangement, and from that sum provided
Ganim with cash and benefits upon his request.
H. United Properties & Dollar-A-Square-Foot
The Lenocis, principals of United Properties, were seeking in 1998 and 1999 to develop
tracts of land in the City, including a site called Father Panik and another called Steel Point. The
Lenocis and Pinto worked out a deal whereby United Properties would pay Pinto one dollar for
each square foot of space they constructed in the City in the future. Pinto was to use some of that
money to “take care of” Ganim, who in turn lobbied to get the Lenocis a long-term lease to
develop Father Panik. In 2000, the City sought bids to develop Steel Point. In a November 2000
meeting with Pinto and Ganim, the Lenocis promised to raise $500,000 for Ganim’s anticipated
gubernatorial campaign in exchange for his commitment to get them the Steel Point project. But
the Lenocis did not bid on the project when federal search warrants were executed at United
Properties. Because neither the Father Panik nor the Steel Point projects materialized, Ganim
8
and Pinto received no money in connection with these projects.
I. False Income Tax Returns
On his 1998 and 1999 income tax returns, Ganim failed to report as income $47,996 and
$265,733, respectively, in cash and benefits provided by Pinto and Grimaldi, including the sums
Grimaldi paid to Ganim’s wife.
J. Ganim’s Defense
Ganim testified in his own defense at trial. He acknowledged that Pinto and Grimaldi
provided him with cash, meals, clothing, wine and other gifts, but claimed they did so out of
friendship or legitimate lobbying activity. He denied receiving any gifts in exchange for official
acts, denied entering any fee-sharing agreement with Pinto and Grimaldi, denied being “partners”
with them or being aware of the deals between Pinto and Grimaldi, and claimed that he acted
only in the best interest of the City.
Ganim confirmed that his wife had worked for Grimaldi, but claimed that their failure to
report her wages was inadvertent. He also admitted acquiring a life insurance policy paid for by
City funds but denied having purchased it secretly or without proper City Council authorization.
II. Judicial Proceedings
A. Indictment
Between 1997 and 2001, the Federal Bureau of Investigation and the Internal Revenue
Service conducted an investigation of municipal corruption in the City. On October 31, 2001, a
grand jury in the United States District Court for the District of Connecticut returned a twenty-
four count indictment against Ganim, and on March 27, 2002, the grand jury returned a
superseding indictment containing the same charges.
9
Count 1 alleged that Ganim, along with Pinto and Grimaldi, conducted a racketeering
enterprise in violation of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C.
§ 1962(c) (“RICO”), and listed eleven predicate racketeering acts. Count 2 alleged conspiracy to
conduct a racketeering enterprise. Counts 3-21, which overlapped with many of the predicate
RICO acts, were separately charged as the following crimes: (1) extortion in violation of the
Hobbs Act, 18 U.S.C. §§ 1951 & 1952; (2) mail fraud in violation of 18 U.S.C. §§ 1341 & 1346;
(3) bribery involving programs receiving federal funds (“federal programs bribery”) in violation
of 18 U.S.C. § 666; and (4) conspiracy under 18 U.S.C. § 371 to commit bribery under 18 U.S.C.
§ 666. Counts 22 and 23 alleged the filing of false tax returns in violation of 28 U.S.C.
§ 7206(1). Count 24 was a forfeiture count under 18 U.S.C. § 1963.
The district court granted Ganim’s motion for a bill of particulars, ordering the
government to provide “a limited bill” “setting out the specific benefits Ganim is alleged to have
received.” United States v. Ganim, 225 F. Supp. 2d 145, 148, 155 (D. Conn. 2002). After
receiving the bill of particulars, Ganim moved for a supplemental bill on the grounds that the
first was incomplete. The district court granted the motion, and the government subsequently
filed a supplemental bill.
B. The Trial and Verdict
Ganim’s trial commenced on January 8, 2003, and lasted ten weeks. Before the case was
submitted to the jury, Counts 18 and 21 of the indictment were dismissed for reasons not relevant
here. After deliberating for eight days, the jury returned a verdict convicting Ganim on 16 of the
remaining 22 counts.
10
C. Sentencing
On July 1, 2003, the district court sentenced Ganim principally to nine years’
imprisonment, the top of the 87-108 months Sentencing Guidelines range, followed by a three-
year term of supervised release. The court also imposed a fine upon Ganim in the sum of
$150,000, ordered him to pay restitution to Bridgeport Energy and to the City in the total amount
of $148,617, and ordered Ganim to forfeit $175,000 in proceeds derived from the racketeering
enterprise.
Ganim timely appealed, but before briefing was complete, the Supreme Court issued its
decision in United States v. Booker, 543 U.S. 220 (2005), and this Court issued its decision in
United States v. Crosby, 397 F.3d 103 (2d Cir. 2005). Pursuant to Crosby, this Court remanded
Ganim’s case to the district court. The district court rejected Ganim’s request for resentencing,
concluding that it would not have imposed a materially different sentence under an advisory
guidelines regime. United States v. Ganim, 01 Cr. 263 (JDA), 2006 WL 1210984, at * 3
(D. Conn. May 5, 2006). Our jurisdiction was reinstated when Ganim notified this Court of the
district court’s decision.
DISCUSSION
Ganim challenges the jury charges given on the bribery-related crimes at issue:
(1) extortion in violation of the Hobbs Act, 18 U.S.C. § 1951; (2) “honest services mail fraud” in
violation of 18 U.S.C. §§ 1341 & 1346; (3) federal programs bribery in violation of 18 U.S.C.
§ 666(a)(1)(b); and (4) bribe receiving in violation of Connecticut General Statutes section 53a-
1483 (collectively, the “bribery-related crimes”). As explained further below, each of these
3
This Connecticut statute served as the basis for some of the RICO predicate offenses.
11
statutes criminalizes, in some respect, a quid pro quo agreemen—to wit, a government official’s
receipt of a benefit in exchange for an act he has performed, or promised to perform, in the
exercise of his official authority. Ganim’s challenges to the jury charge primarily relate to a
single issue: namely, whether proof of a government official’s promise to perform a future, but
unspecified, official act4 is sufficient to demonstrate the requisite quid pro quo for a conviction.
Ganim essentially claims that at the time a quid pro quo agreement is reached, a direct link must
exist between a benefit received and a specifically identified official act. We disagree, and hold
that the requisite quid pro quo for the crimes at issue may be satisfied upon a showing that a
government official received a benefit in exchange for his promise to perform official acts or to
perform such acts as the opportunities arise.
A. Standard of Review
“We review jury charges de novo, reversing only where a charge either failed to inform
the jury adequately of the law or misled the jury about the correct legal rule.” United States v.
Ford, 435 F.3d 204, 209-10 (2d Cir. 2006) (internal citation omitted). No particular form of
words is required, so long as “taken as a whole” the instructions correctly convey the required
legal principles. Victor v. Nebraska, 511 U.S. 1, 5 (1994). Moreover, this Court does “not
review portions of the instructions in isolation, but rather consider[s] them in their entirety to
determine whether, on the whole, they provided the jury with an intelligible and accurate
portrayal of the applicable law.” United States v. Weintraub, 273 F.3d 139, 151 (2d Cir. 2001).
4
Except where otherwise noted herein, we use the term “official act” in a general sense to
mean an act taken under color of official authority, not necessarily as the term is used and
statutorily defined in 18 U.S.C. § 201 or elsewhere.
12
B. Hobbs Act Extortion
1. Relevant Law
The Hobbs Act makes it a crime to “obstruct[], delay[], or affect[] commerce or the
movement of any article or commodity in commerce, by robbery or extortion,” and defines
extortion as “the obtaining of property from another, with his consent, induced by wrongful use
of actual or threatened force, violence, or fear, or under color of official right.” 18 U.S.C.
§ 1951(a), (b)(2). Ganim challenges his conviction for extortion “under color of official right.”
In McCormick v. United States, 500 U.S. 257 (1991), the Supreme Court considered the
requirements for an extortion conviction under color of official right in the special context of
campaign contributions. The Court held:
The receipt of such contributions is . . . vulnerable under the Act as having been
taken under color of official right, but only if the payments are made in return for an
explicit promise or undertaking by the official to perform or not to perform an
official act. In such situations the official asserts that his official conduct will be
controlled by the terms of the promise or undertaking.
Id. at 273 (emphasis added). That is, proof of an express promise is necessary when the
payments are made in the form of campaign contributions. Id. at 273-74. The Court, however,
explicitly did “not decide whether a quid pro quo requirement exists in other contexts, such as
when an elected official receives gifts, meals, travel expenses, or other items of value.” Id. at
274 n.10.
In Evans v. United States, 504 U.S. 255 (1992), the Court held that an affirmative act of
inducement by a public official is not an element of the offense of extortion under color of
official right. Id. at 257, 268. The Court also found that the jury instruction, which allowed for a
conviction if the official accepted money “in exchange for [a] specific requested exercise of his
13
or her official power,” satisfied McCormick’s quid pro quo requirement. Id. at 258, 267. The
Court explained that “the offense [of extortion] is completed at the time when the public official
receives a payment in return for his agreement to perform specific official acts; fulfillment of the
quid pro quo is not an element of the offense.” Id. at 268. Thus, the Court concluded, the
government “need only show that a public official has obtained a payment to which he was not
entitled, knowing that the payment was made in return for official acts.” Id.
We harmonized McCormick and Evans in United States v. Garcia, 992 F.2d 409 (2d Cir.
1993), stating:
Although the McCormick Court had ruled that extortion under color of official
right in circumstances involving campaign contributions occurs “only if the
payments are made in return for an explicit promise or undertaking by the official
to perform or not to perform an official act,” Evans modified this standard in
non-campaign contribution cases by requiring that the government show only
“that a public official has obtained a payment to which he was not entitled,
knowing that the payment was made in return for official acts.”
Garcia, 992 F.2d at 414 (internal citations omitted). Drawing from Justice Kennedy’s
concurrence in Evans, we found that a quid pro quo was required to sustain a conviction in the
non-campaign context, but that the agreement may be implied from the official’s words and
actions because “‘otherwise the law’s effect could be frustrated by knowing winks and nods.’”
Id. (quoting Evans, 504 U.S. at 274 (Kennedy, J., concurring)).
The facts in Garcia were similar to the ones now before us. Over the course of several
years, then New York Congressman Robert Garcia solicited money and loans from a defense-
contractor company, and in exchange steered federal projects to the company and interceded on
its behalf with banks and government agencies. The jury instruction, given shortly before the
Supreme Court’s decision in Evans, failed to charge the jury that it must find a quid pro quo to
14
convict. Rather, the district court presented three alternative theories that could sustain a
conviction: (1) soliciting money “in connection with” the official’s duties; (2) offering to confer a
benefit or to take some official action (or inaction) in exchange for money; and (3) accepting
money that “could reasonably have affected” the exercise of official duties. Garcia, 992 F.2d at
413. We reversed the conviction because only the second alternative presented in the jury charge
satisfied the quid pro quo standard articulated in Evans. Specifically, we explained that
“[a]lthough no explicit agreement between [the company] and Garcia need have been shown, the
government must have shown that Garcia received the payment ‘knowing that [it] was made in
return for official acts.” Id. at 415 (quoting Evans, 504 U.S. at 268) (alternation in original).
Thus, we explained, “it was not enough for the jury to have concluded that Garcia’s acceptance
of money was ‘in connection with [his] official duties’ or ‘reasonably’ could have ‘affected’ the
performance of his official duties.” Garcia, 992 F.2d at 415 (quoting Evans, 504 U.S. at 268)
(alteration in original). Rather, in order to satisfy the requisite quid pro quo, “[t]he jury was
required to find that Garcia understood that the payment was made in return for performance of
those duties.” Garcia, 992 F.2d at 415.
Shortly after Garcia, we were called upon again in United States v. Coyne, 4 F.3d 100 (2d
Cir. 1993), to delineate the contours of the quid pro quo requirement in the context of a jury
charge challenge. Coyne concerned the conviction of the Albany County Executive for his
extortion of a $30,000 “loan” from the owner of a company he had helped to obtain a lucrative
city contract. We upheld the following Hobbs Act jury instruction:
[Y]ou may only find the defendant guilty of this crime if you find that he obtained
a payment to which he was not entitled, knowing that the payment was made in
return for official acts rather than being given voluntarily or unrelated to the
defendant’s office. The defendant need not have affirmatively induced the payment
15
by his actions, but he must know the payment is offered in exchange for a specific
requested exercise of his official power in order to violate the statute.
Id. at 113-14. We found that the instruction “tracked the Supreme Court’s statement in Evans.”
Id. at 114. We also explained that “the government does not have to prove an explicit promise to
perform a particular act made at the time of payment.” Id. Instead, “it is sufficient if the public
official understands that he or she is expected as a result of the payment to exercise particular
kinds of influence—i.e., on behalf of the payor—as specific opportunities arose.” Id. (internal
citation omitted).
2. Jury Charge
In charging the jury on the elements of extortion, the district court explained that the
government was required to prove that “the defendant wrongfully used the authority of his office
or position to obtain the money, goods or services to which he was not entitled.”5 The court
continued:
To satisfy this element, the government must prove that the defendant obtained a
payment to which he was not entitled by use of his office, knowing that the payment
was made in return for official acts rather than being given voluntarily or unrelated
to the defendant’s official position. The defendant need not have initiated the
payments, but he must have known that the payment was made in exchange for a
specific exercise of the defendant’s official powers. You do not have to determine
whether the defendant could or did actually perform the service, or whether he
actually had a duty to do so.
The government does not have to prove an explicit promise to perform a particular
act made at the time of payment. It is sufficient if the defendant understood he was
expected as a result of the payment to exercise particular kinds of influence, that is,
on behalf of the payor, as specific opportunities arose. (emphasis added)
Both parties appear to agree that the language in the first paragraph—requiring that the
5
The jury was charged on the law of Hobbs Act extortion in connection with Count 1
(racketeering acts 1A and 6), and then again in summary form in connection with Count 3.
16
defendant know “that the payment was made in return for official acts,” and “that the payment
was made in exchange for a specific exercise of the defendant’s official powers”—accurately
portrays the applicable quid pro quo standard. Ganim objects, however, to the statement in the
second paragraph that “[i]t is sufficient if the defendant understood he was expected as a result of
the payment to exercise particular kinds of influence, that is, on behalf of the payor, as specific
opportunities arose.” He claims that this instruction misled the jury as to what establishes a quid
pro quo under the Hobbs Act, because it did not require the jury to find “that any of the benefits
received were connected to a ‘specific’ act.”
To the extent Ganim objects to the “particular kinds of influence” phraseology in the
second paragraph quoted above from the jury charge, we find no error. Because the preceding
paragraph in the charge clearly articulated the “payment . . . in return for official acts” quid pro
quo, the phrase “kinds of influence,” which might otherwise be ambiguous, would only be
understood to refer to undertaking the official acts that made up Ganim’s part of the bargain.
Moreover, to the extent Ganim claims that the benefits received must be directly linked to
a particular act at the time of agreement, he overstates the law. We explained in Coyne, in
language mirroring the jury charge here, that “it is sufficient if the public official understands that
he or she is expected as a result of the payment to exercise particular kinds of influence—i.e., on
behalf of the payor—as specific opportunities arise.” See Coyne, 4 F.3d at 114; see also United
States v. Bradley, 173 F.3d 225, 231-32 (3d Cir. 1999) (upholding Hobbs Act jury instruction
containing substantially similar language).6 Our statement in Coyne is a natural corollary of
6
To the extent that our statement in Coyne was dicta, insofar as the jury charge did not
contain the “as specific opportunities arise” language, we now hold what we stated then.
17
Evans’ pronouncement that the government need not prove the existence of an explicit agreement
at the time a payment is received, Evans, 504 U.S. at 268. See Coyne, 4 F.3d at 114 (implicitly
drawing the connection); see also Bradley, 173 F.3d at 231-32 (same). Rather, it is enough that a
“public official has obtained a payment to which he was not entitled, knowing that the payment
was made in return for official acts.” Evans, 504 U.S. at 268. Moreover, given that the crime of
extortion occurs without regard to whether the promised official act is carried out, see id.
(“[F]ulfillment of the quid pro quo is not an element of the offense.”), Ganim’s proposal—that a
specific act be identified and directly linked to a benefit at the time the benefit is
received—demands too much.
In contending otherwise, Ganim’s reliance on United States v. Sun-Diamond Growers of
California, 526 U.S. 398 (1999), is misplaced. Sun-Diamond was a trade association convicted
of providing illegal gratuities under 18 U.S.C. § 201(c)(1)(A) for having given tickets, meals and
other items to the Secretary of Agriculture. Id. at 401. The indictment “alluded to two matters”
“before the Secretary in which [Sun-Diamond] had an interest,” but “did not allege a specific
connection between either of them—or between any other action of the Secretary—and the
gratuities conferred.” Id. at 401-02. The district court instructed the jury that it could convict
Sun-Diamond of giving illegal gratuities if it found that “Sun-Diamond provided [the Secretary]
with unauthorized compensation simply because he held public office,” and that “[t]he
government need not prove that the alleged gratuity was linked to a specific or identifiable
official act or any act at all.” Id. at 403. The issue before the Supreme Court was whether a
“conviction under the illegal gratuity statute requires any showing beyond the fact that a gratuity
was given because of the recipient’s official position.” Id. at 400. The Court held that the statute
18
did require something more; namely, “a link between a thing of value conferred upon a public
official and a specific ‘official act’ for or because of which it was given.” Id. at 414. The Court
explained that a contrary ruling would not “fit comfortably with the statutory text, which
prohibits only gratuities given or received ‘for or because of any official act performed or to be
performed,’” and then defines “official act” as “‘any decision or action on any question, matter,
cause, suit, proceeding or controversy.’” Id. at 406 (alteration in original) (quoting 18 U.S.C. §
201(a)(3), (c)(1)(A)). The Court also explained that, if an official’s position rather than an
official’s act were sufficient to convict, the line between illegal and legal gift giving would be
indiscernible. Id. at 408-11.
Ganim seems to acknowledge, as he must, that Sun-Diamond’s holding does not on its
face extend to the extortion statute, or to any other of the bribery-related statutes under which he
was convicted. He nonetheless argues that common sense requires us to extend this direct link
requirement beyond the gratuities context to the bribery-related crimes at issue. Otherwise, he
contends, the government would be able to convict upon proof of a “less exacting nexus” than it
must to demonstrate a gratuities offense, notwithstanding that extortion and bribery are far more
serious crimes that carry more severe criminal penalties. But Ganim’s argument misapprehends
Sun-Diamond.
To begin, there is good reason to limit Sun-Diamond’s holding to the statute at issue in
that case, as it was the very text of the illegal gratuity statute—“for or because of any official act”
—that led the Court to its conclusion that a direct nexus was required to sustain a conviction
under § 201(c)(1)(A). Sun-Diamond, 526 U.S. at 406 (alternation in original) (“The insistence
upon an ‘official act,’ carefully defined, seems pregnant with the requirement that some
19
particular official act be identified and proved.”). Neither the Hobbs Act provision under which
Ganim was convicted, 18 U.S.C. § 1951, nor any other of the bribery-related statutes at issue,
contain the same express statutory requirement. See 18 U.S.C. § 1951(b)(2) (proscribing the
“obtaining of property from another, with his consent, induced by wrongful use of actual or
threatened force, violence, or fear, or under color of official right.”); 18 U.S.C. § 666(a)(1)(B)
(making it illegal for a local public official to “corruptly solicit[] or demand[] for the benefit of
any person, or accept[] or agree[] to accept, anything of value from any person, intending to be
influenced or rewarded in connection with any business, transaction, or series of transactions” of
the local government “involving any thing of value of $5,000 or more”); 18 U.S.C. §§ 1341 &
1346 (criminalizing the use of the mails for the purpose of executing a “scheme or artifice to
deprive another of the intangible right of honest services”); Conn. Gen. Stat. 53a-148(a) (“A
public servant or a person selected to be a public servant is guilty of bribe receiving if he solicits,
accepts or agrees to accept from another person any benefit for, because of, or as consideration
for his decision, opinion, recommendation or vote.”).
Nor is there any principled reason to extend Sun-Diamond’s holding beyond the illegal
gratuity context. Undergirding the Court’s decision in Sun-Diamond was a need to distinguish
legal gratuities (given to curry favor because of an official’s position) from illegal gratuities
(given because of a specific act). The Court offered a strictly worded requirement that the
government show a link to a “specific official act” to supply a limiting principle that would
distinguish an illegal gratuity from a legal one. The same limiting principle is not needed in the
extortion or bribery contexts, however, because it is the requirement of an intent to perform an
act in exchange for a benefit—i.e., the quid pro quo agreement—that distinguishes those crimes
20
from both legal and illegal gratuities. See United States v. Alfisi, 308 F.3d 144, 149-52 (2d Cir.
2002) (declining to extend Sun-Diamond’s holding to bribery under 18 U.S.C. § 201(b)(1)(A)
which contains the element of a quid pro quo or a direct exchange).
Thus, now, as before Sun-Diamond, so long as the jury finds that an official accepted
gifts in exchange for a promise to perform official acts for the giver, it need not find that the
specific act to be performed was identified at the time of the promise, nor need it link each
specific benefit to a single official act. To require otherwise could subvert the ends of justice in
cases—such as the one before us—involving ongoing schemes. In our view, a scheme involving
payments at regular intervals in exchange for specific officials acts as the opportunities to
commit those acts arise does not dilute the requisite criminal intent or make the scheme any less
“extortionate.” Indeed, a reading of the statute that excluded such schemes would legalize some
of the most pervasive and entrenched corruption, and cannot be what Congress intended.
Our post-Sun Diamond decision in United States v. Middlemiss, 217 F.3d 112 (2d Cir.
2000), upon which Ganim relies, does not suggest otherwise. In Middlemiss, the victim paid
defendants monthly payments of $2,000, and a final payment of $45,000, “because [the victim]
reasonably believed that [the defendants] had power to influence airport and other officials who
could terminate his cafeteria lease or begin administrative investigations into the health and tax
code compliance of his businesses.” Id. at 117. We found no plain error in a Hobbs Act jury
instruction that the defendants “had to know a link” existed between the payments and their acts.
Id. at 121-22. Contrary to Ganim’s suggestion, we did not extend Sun-Diamond’s holding to the
extortion context in Middlemiss. We simply noted that the jury charge at issue in Middlemiss,
unlike the one in Sun-Diamond, conveyed that the official “had to know a link existed” between
21
the money paid and the official act performed, and for that reason defendant’s reliance on Sun-
Diamond was unavailing. Neither the jury charge nor our decision, however, required a direct
this-for-that relationship between each payment and benefit. Rather, we explained that the
government, more generally, “‘need only show that a public official has obtained a payment to
which he was not entitled, knowing that the payment was made in return for official acts.’” Id. at
117 (quoting United States v. Delano, 55 F.3d 720, 731 (2d Cir. 1995)).
In short, requiring a jury to find a quid pro quo, as governing law does, ensures that a
particular payment is made in exchange for a commitment to perform official acts to benefit the
payor in the future. Once the quid pro quo has been established, however, the specific
transactions comprising the illegal scheme need not match up this for that. While it frequently
will be true that particular bribes or extorted payments are linked at the time of the corrupt
agreement to particular official acts, that will not always be the case—for example, because the
opportunity to undertake the requested act has not arisen, or because the payment is one of a
series to ensure an ongoing commitment to perform acts to further the payor’s interests.
Accordingly, the Hobbs Act jury instructions were not erroneous.
C. “Honest Services” Mail Fraud
1. Relevant Law
Title 18, Section 1341 of the United States Code criminalizes the use of the mails for the
purpose of executing a “scheme or artifice to defraud.” 18 U.S.C. § 1341. When mail fraud is
prosecuted as a scheme or artifice “to deprive another of the intangible right of honest services,”
18 U.S.C. § 1346, it is referred to as “honest services mail fraud”; when it is prosecuted simply
as a scheme to deprive another of property by means of false pretenses, it is referred to as
22
“traditional mail fraud.” The government clarified during pretrial proceedings that it would
prosecute the honest services mail fraud charges “as a scheme to deprive the citizenry of Ganim’s
honest services by bribery of (or extortion by) an elected official.” See United States v. Ganim,
225 F. Supp. 2d 145, 147 (D. Conn. 2002). Thus, the honest services mail fraud charges—which
are the only ones challenged here—were all tried under the substantive law of either extortion or
bribery.7
Like extortion, the crime of bribery requires a quid pro quo. See, e.g., Alfisi, 308 F.3d at
148 (“[B]ribery . . . requires a quid pro quo element.”); see also Sun-Diamond, 526 U.S. at 405
(distinguishing an illegal gratuity from a bribe which “requires proof of a quid pro quo”). And,
like in the extortion cases, donors and recipients engaged in ongoing bribery schemes do not
always spell out in advance the specific match between gift and act. For example, in United
States v. Bonito, 57 F.3d 167 (2d Cir. 1995), we upheld the conviction of a real estate developer
who gave a car to a city housing official as a bribe, but when the deal the developer hoped the
official could ensure fell through, the official found other ways of using his position for the
developer’s financial benefit. Id. at 169-71, 174. We found the jury charge sufficient because it
7
For purposes of this appeal, we presume that the same standard for proving a quid pro
quo exists under both 18 U.S.C. § 666 and § 201(b)(1), as neither party has argued that there is,
or should be, any difference of which we should be cognizant. See United States v. Ford, 435
F.3d 204, 213 (2d Cir. 2006) (citing Sun-Diamond for the proposition that bribery under § 666
requires a quid pro quo); Alfisi, 308 F.3d at 149 (citing Sun-Diamond for the proposition that
bribery under § 201(b)(1) requires a quid pro quo). We note here, and have held previously, that
there are other differences between the two provisions that are salient under circumstances not
present here. See Ford, 435 F.3d at 210 & n.2, 213-14 & n.5 (stating that “the language of the
two provisions differs in significant respects,” including that “Section 201 lacks an explicit intent
requirement as to recipients of alleged bribes while Section 666 contains one,” and concluding
that those differences were important with respect to the level of awareness each provision
required of the recipient of a bribe).
23
required the jury to find a corrupt intent on the part of the payor to influence the performance of
official acts. Id. at 171.
The Fourth Circuit also shares our view that, in order to establish the quid pro quo
essential to proving bribery, “the government need not show that the defendant intended for his
payments to be tied to specific official acts (or omissions).” United States v. Jennings, 160 F.3d
1006, 1014 (4th Cir. 1998). In Jennings, a construction contractor was convicted of federal
programs bribery under 18 U.S.C. § 666(a)(2) for giving a series of cash payments to a city
official responsible for awarding jobs renovating vacant housing units. Id. at 1010-12. In return
for the money, the official steered contracts to Jennings worth hundreds of thousands of dollars.
Id. In upholding the bribery conviction, the Fourth Circuit emphasized that bribery required an
intent to effect an exchange, but that “each payment need not be correlated with a specific official
act. . . . In other words, the intended exchange in bribery can be ‘this for these’ or ‘these for
these’, not just ‘this for that.’” Id. at 1014 (internal citation omitted). Thus, bribery can be
accomplished through an ongoing course of conduct, so long as evidence shows that the “favors
and gifts flowing to a public official [are] in exchange for a pattern of official actions favorable
to the donor.” Id. (emphasis in original) (internal quotation omitted).
2. Jury Charge
The district court charged the jury that it could convict Ganim for honest services mail
fraud if the jury found that he engaged in a scheme to receive something of value either through
bribery or through extortion.8 As the jury had already been instructed on the elements of
8
The jury was charged on the law of honest services mail fraud in connection with Count
1 (racketeering acts 1B, 1C, 1D, 2B, 3A, 3B, 4A, 4B, 7B, 7C, 7D, 7E, 8B and 9), and, for Counts
4-6, 8, 14, 17 and 19, was referred back to the charge on the related racketeering acts.
24
extortion, the court turned to the crime of bribery:
The term “bribe” means a corrupt payment that a public official accepted or agreed
to accept with the intent to be influenced in the performance of his or her public
duties. A bribe requires some specific quid pro quo, a Latin phrase meaning this for
that or these for those, that is, a specific official action in return for the payment or
benefit. If the public official knows that he or she is expected as a result of the
payment to exercise particular kinds of influence or decision making to the benefit
of the payor, and, at the time the payment is accepted, intended to do so as specific
opportunities arose, that is bribery.
***
[B]ribery is not proved if the benefit is intended to be, and accepted as simply an
effort to buy favor or generalized goodwill from a public official who either has been,
is, or may be at some unknown, unspecified later time, be in a position to act
favorably on the giver’s interests—favorably to the giver’s interest. That describes
legal lobbying.
***
Public officials may lawfully receive a campaign contribution, and he or she may also
lawfully accept a personal benefit if his or her intent in taking those items is solely
to cultivate a relationship with the person or persons who provided them. (emphasis
added).
Once again, Ganim objects that by permitting the jury to convict based on the defendant’s
knowledge that he is “expected as a result of the payment to exercise particular kinds of influence
or decision making to the benefit of the payor, and, at the time payment is accepted, intended to
do so as specific opportunities arose,” the charge was improperly broad. Ganim argues that the
later instruction—that accepting a benefit that is “intended to . . . buy favor or generalized
goodwill” from an official who may “at some unknown, unspecified later time, be in a position to
act favorably”—did not cure the earlier error because the two instructions “cannot be
reconciled.”
We find no error in the instruction. Even more specifically than did the charge on
25
extortion, the passage quoted above explained that “[a] bribe requires some specific quid pro quo
. . . that is, a specific official action in return for the payment or benefit.” This statement
conformed even to the heightened conception of a quid pro quo that Ganim urges this Court to
adopt. Further, the district court set forth in detail the type of “legal lobbying” that is not
bribery—the precise activity Ganim is concerned an overly broad charge could sweep up. Taken
as a whole, this charge “provided the jury with an intelligible and accurate portrayal of the
applicable law” pertaining to bribery and thus to honest services mail fraud. United States v.
Weintraub, 273 F.3d 131, 151(2d Cir. 2001). And, for the reasons explained above, his reliance
on Sun-Diamond is misplaced. Cf. Alfisi, 308 F.3d at 151 n.4 (“We do not agree that
Sun-Diamond requires us to define the crime of bribery narrowly. . . . Sun-Diamond . . . says
nothing about bribery . . . .”).
D. Federal Programs Bribery and Bribe Receipt Under Connecticut Law
1. Relevant Law
One is guilty of a crime under 18 U.S.C. § 666 if he is an agent of local government and
“corruptly solicits or demands for the benefit of any person, or accepts or agrees to accept,
anything of value from any person, intending to be influenced or rewarded in connection with
any business, transaction, or series of transactions” of the local government “involving any thing
of value of $5,000 or more.” 18 U.S.C. § 666(a)(1)(B). The parties agree that, for purposes of
this case, the law of bribe receiving under Connecticut law is governed by the same legal
framework pertaining to 18 U.S.C. § 666.9
9
The jury was charged on the law of federal programs bribery in connection with Count
7, and referred back to that charge in connection with the counts of conspiracy to commit federal
programs bribery, Counts 16 and 20. The jury was charged on the law of bribe receiving under
26
We have interpreted § 666 to impose criminal liability for both kinds of crime proscribed
by § 201: bribery and illegal gratuities. Specifically, we held in United States v. Crozier, 987
F.2d 893 (2d Cir. 1993), that a predecessor of the current § 666 criminalized both bribery and
illegal gratuities, because that statute’s language making it a crime to accept a thing of value for
or because of the recipient’s conduct in any transactions “includes both past acts supporting a
gratuity theory and future acts necessary for a bribery theory.” Id. at 899. Although the current
version of the statute does not contain the “for or because of” language, we held in Bonito that
“the deleted language has been replaced with language that is to the same effect”—namely, that
“the payment must be ‘to influence or reward’ the official conduct.” 57 F.3d at 171 (quoting 18
U.S.C. § 666(a)(1)(B)). We intimated there that a payment made to “influence” connotes
bribery, whereas a payment made to “reward” connotes an illegal gratuity. Id.; cf. Sun-Diamond,
526 U.S. at 404-05 (explaining that under 18 U.S.C. § 201, “[b]ribery requires intent ‘to
influence’” whereas an illegal gratuity “may constitute merely a reward for some future act”).
The government implicitly agreed in its brief that § 666 proscribes both bribery and gratuities,
and confirmed at oral argument that it agreed to prosecute violations of the statute as bribery
only.
2. Jury Charge
The district court’s charge on federal programs bribery instructed the jury, in pertinent
Connecticut law in connection with Count 1 (racketeering acts 2A, 7A, 81, 8C, 8D, 10A).
Ganim’s brief expressed the position that he treats the substantive law under the Connecticut
bribe receiving statute as identical, for purposes relevant to this appeal, to bribery under federal
law. The government confirmed at oral argument that it held the same position. We do not
address the jury instruction for the charges based on bribe receiving under Connecticut law
because Ganim has not separately challenged those instructions, except in a passing footnote in
his reply brief, and on grounds not presented to the district court.
27
part, as follows:
The third element that the government must prove is that the defendant acted with the
corrupt intent to be influenced or rewarded in connection with some business,
transaction or series of transactions of the City of Bridgeport itself or one of its
agencies. A “corrupt intent” means the intent to engage in some specific quid pro
quo . . . or the intent to give some advantage inconsistent with official duty and the
rights of others. “Corruptly” means having an improper motive or purpose.
Put another way, a public official acts corruptly if he solicits, accepts or agrees to
accept a personal benefit, at least in part, with the intent to be improperly influenced
or rewarded in connection with the performance of an official act. The motive to act
corruptly is ordinarily a hope or an expectation of either financial gain or other
benefit to one’s self or some profit or benefit to another. (emphasis added).
The jury charge language that Ganim objects to with respect to the other bribery-related crimes
—i.e., phrases like “kinds of influence” or “as specific opportunities arise”—are absent from this
charge. Ganim argues, however, that the instruction “incorporates its own, unique error” in the
form of the word “rewarded.” He claims the district court’s use of the word “reward,” in the
second paragraph above, permitted the jury to convict Ganim on a gratuities theory rather than a
bribery theory.10
Given the law in this circuit, see, e.g., Bonito, 57 F.3d at 171, the inclusion of the word
“rewarded” in the charge introduced unnecessary ambiguity as it may have implied an illegal
gratuity theory which the government, in fact, had not pursued. Future courts, cognizant of the
gratuity/bribery distinction in § 666 prosecutions, should endeavor to be more precise. Ganim,
however, failed to object to the “influenced or rewarded” language at trial, despite raising a
10
Ganim also objects to the charge’s reference to a “series of transactions,” which
“watered down the quid pro quo” by eliminating the requirement that the benefit be linked to a
single, specific act. As the government notes, the phrase appears in the statute itself, so there is
no error.
28
different objection to the § 666 instruction that is not at issue in this appeal.11 We therefore
review the charge for plain error, reversing only if the error is clear or obvious and affects
substantial rights. United States v. Olano, 507 U.S. 725, 733-34 (1993). To affect substantial
rights, an error “must have been prejudicial: It must have affected the outcome of the district
court proceedings.” Id. at 734.
Here, it was not clear or obvious that using the word “reward” was error, particularly
because the phrase “influenced or rewarded” is contained in the statute itself. 18 U.S.C.
§ 666(a)(1)(B). Moreover, it is unlikely that including the word had any effect at all, much less
one “affect[ing] the outcome of the district court proceedings.” Olano, 507 U.S. at 734. That is,
we cannot conclude that the charge as given permitted the jury to convict on a gratuities theory.
A jury would not have understood the word “reward” to have any particular legal meaning
beyond that ascribed to it in the instructions, and the district court plainly instructed the jury that
to convict Ganim of federal programs bribery, it would have to find a “specific quid pro quo.”
As Sun-Diamond explained, what distinguishes a bribe from a gratuity is its intent element: only
bribery requires “the specific intent to give or receive something of value in exchange for an
official act.” Sun-Diamond, 526 U.S. at 404-05 (emphasis in orginal). Because the jury was
required to find that element, it necessarily convicted Ganim of bribery under 18 U.S.C. § 666,
rather than the lesser included offense of receiving illegal gratuities. Thus, to the extent there
was error in the § 666 jury instruction, it was not plain error.
11
Indeed, the Defendant’s Requests to Charge filed with the district court itself included
the phrase “intending to be influenced or rewarded,” not once but three times.
29
CONCLUSION
For the foregoing reasons, we hold that the jury instructions required the jury to find a
sufficiently specific nexus between the personal benefits Ganim received and the official acts he
agreed to perform in return for them. And for the additional reasons discussed in our
accompanying summary order, we AFFIRM the judgment of conviction.
30
United States v. Ganim
Court: Court of Appeals for the Second Circuit
Date filed: 2007-12-04
Citations: 510 F.3d 134
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