United States v. Ganim

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