PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 17-1817

_______________

UNITED STATES OF AMERICA

v.

WILLIAM E. BARONI, JR.,

Appellant

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No. 17-1818

_______________

UNITED STATES OF AMERICA

v.

BRIDGET ANNE KELLY,

Appellant

_______________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Nos. 2-15-cr-00193-001 and 2-15-cr-00193-002)

District Judge: Honorable Susan D. Wigenton

_______________
2

Argued: April 24, 2018

Before: AMBRO, SCIRICA, and SILER, JR., Circuit 

Judges.

(Opinion Filed: November 27, 2018)

Syed Y. Latifi

Matthew J. Letten

Michael A. Levy [ARGUED]

Michael D. Mann

Nicholas M. McLean

Sidley Austin LLP

787 Seventh Avenue

New York, NY 10019

Counsel for Appellant Baroni

Henry W. Asbill

BuckleySandler

1250 24th Street, N.W.

Suite 700

Washington, DC 20037

Jacob M. Roth [ARGUED]

Charlotte H. Taylor

Jones Day

51 Louisiana Avenue N.W.

Washington, DC 20001

 

 Honorable Eugene E. Siler, Jr., United States Court of 

Appeals for the Sixth Circuit, sitting by designation.
3

Michael D. Critchley

Critchley, Kinum & Denoia, LLC

75 Livingston Avenue

3

rd Floor

Roseland, NJ 07068

Counsel for Appellant Kelly

Mark E. Coyne

Bruce P. Keller [ARGUED]

Office of the United States Attorney 

970 Broad Street

Room 700

Newark, NJ 07102

Counsel for Appellee

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OPINION OF THE COURT

_______________

SCIRICA, Circuit Judge

Defendants William E. Baroni, Jr. and Bridget Anne 

Kelly engaged in a scheme to impose crippling gridlock on the 

Borough of Fort Lee, New Jersey, after Fort Lee’s mayor 

refused to endorse the 2013 reelection bid of then-Governor 

Chris Christie. To this end, under the guise of conducting a 

“traffic study,” Baroni and Kelly, among others, conspired to 

limit Fort Lee motorists’ access to the George Washington 
4

Bridge—the world’s busiest bridge—over four days in early 

September 2013: the first week of Fort Lee’s school year. This 

scheme caused vehicles to back up into the Borough, creating 

intense traffic jams. Extensive media coverage ensued, and the 

scandal became known as “Bridgegate.” 

In 2015, a grand jury indicted Baroni and Kelly for their 

role in the scheme. Each Defendant was charged with seven 

counts: conspiracy to obtain by fraud, knowingly convert, or

intentionally misapply property of an organization receiving 

federal benefits, 18 U.S.C. § 371, and the substantive offense, 

id. § 666(a)(1)(A); conspiracy to commit wire fraud, id.

§ 1349, and two counts of the substantive offense, id. § 1343;

and conspiracy against civil rights, id. § 241, and the 

substantive offense, id. § 242. A jury convicted Defendants on 

all counts. They appeal only their judgments of conviction.

For reasons that follow, we will affirm Defendants’ 

judgments of convictions on the wire fraud and Section 666 

counts but will reverse and vacate their civil rights convictions. 

I.1

In 2010, then-New Jersey Governor Chris Christie 

appointed Baroni to serve as Deputy Executive Director of the 

 

1 Because Defendants were convicted at trial and raise 

sufficiency challenges, “we review the evidence in the light 

most favorable to the government.” United States v. Hodge, 

870 F.3d 184, 204 (3d Cir. 2017). The facts of this case are not 

materially in dispute.
5

Port Authority of New York and New Jersey. That same year, 

David Wildstein—a cooperating witness in this case2—was 

hired to serve as the Port Authority’s Director of Interstate 

Capital Projects, in which capacity he functioned as Baroni’s 

chief of staff. 

Among its many functions, the Port Authority operates 

the George Washington Bridge, a double-decked suspension 

bridge connecting the Borough of Fort Lee, New Jersey, and 

New York City across the Hudson River. On the bridge’s 

upper deck, twelve toll lanes carry traffic from New Jersey into 

New York. During the morning rush hour, Port Authority 

police place traffic cones to reserve the three right-most 

lanes—the “Special Access Lanes”—for local traffic from Fort 

Lee. This leaves the other nine lanes for drivers on the “Main 

Line,” which includes traffic from I-80 and I-95. This practice 

of reserving Special Access Lanes was a decades-long custom 

dating back to a political deal between a former New Jersey 

governor and Fort Lee mayor. 

Wildstein testified he first became aware of the Special 

Access Lanes in March 2011. He learned the three lanes were 

given to Fort Lee by a former New Jersey governor to reduce 

local traffic and “immediately thought that this would be . . . a 

potential leverage point with [Fort Lee] Mayor [Mark]

Sokolich down the road.” Joint App’x (J.A.) 1596. Wildstein 

 

2 Pursuant to a cooperation plea agreement, Wildstein pled 

guilty on May 1, 2015, to an Information charging him with 

one count of conspiracy to obtain by fraud, knowingly convert, 

and intentionally misapply property of an organization 

receiving federal benefits, 18 U.S.C. § 371, and one count of 

conspiracy against civil rights, id. § 242.
6

shared this observation with Baroni, Governor Christie’s thenChief of Staff Bill Stepien, and Kelly, then the Deputy Chief 

of Staff for New Jersey’s Office of Intergovernmental Affairs 

(IGA). Wildstein did not, however, use the Special Access 

Lanes as leverage at that time. 

Around the same time that Wildstein realized the 

Special Access Lanes could be used as leverage, IGA 

officials—including Kelly—were discussing a plan to solicit 

endorsements from Democratic elected officials to generate 

bipartisan support for Governor Christie’s 2013 re-election 

bid. IGA officials rewarded potential endorsers with, among 

other things, “Mayor’s Days” (meetings with top departmental 

and agency staff) and invitations to sporting events, breakfasts 

and parties at Drumthwacket (the Governor’s Princeton 

residence), and the Governor’s State of the State address. 

The Governor’s Office and IGA used the Port Authority 

similarly to bestow political favors on potential endorsers. As 

Wildstein explained at trial, the Port Authority “was viewed as 

the economic engine of the region” and “had an ability to do 

things for Democratic officials that would potentially put the 

Governor in a more favorable position.” J.A. 1522–23. Baroni 

and Wildstein were thus asked “to assist the Governor’s Office 

in identifying opportunities that would be helpful.” J.A. 1523. 

The Port Authority gave benefits ranging from gifts (e.g., steel 

from the original World Trade Center towers, flags that had 

flown over Ground Zero, framed prints) and tours, to jobs, to

large economic investments (e.g., the $250 million purchase of 

the Military Ocean Terminal at Bayonne). 

One Democratic endorsement sought by the Governor’s 

Office was that of Mayor Sokolich. IGA invited Sokolich to a 
7

New York Giants game, several holiday parties, and one of 

Governor Christie’s budget addresses. And, as early as 2010, 

the Governor’s Office and IGA directed Wildstein to leverage

the Port Authority’s resources to obtain Sokolich’s 

endorsement. Sokolich received benefits ranging from the sort 

of gifts described above to substantial Port Authority 

assistance for Fort Lee (e.g., Port Authority Police assistance 

directing traffic in Fort Lee, a $5,000 contribution to the Fort 

Lee fire department for an equipment purchase, and over 

$300,000 in funding for four shuttle buses providing Fort Lee 

residents with free transport between ferry and bus terminals). 

Despite that, Sokolich informed IGA in 2013 that local 

political considerations precluded him from endorsing the 

Governor’s reelection bid. 

In June 2013, Kelly told Wildstein that she was 

disappointed Sokolich would not be endorsing Governor 

Christie, and Wildstein reminded her “if she want[ed] the Port 

Authority to close down those Fort Lee lanes to put some 

pressure on Mayor Sokolich, that that c[ould] be done.” J.A. 

1605. On August 13, 2013, Kelly sent an email to Wildstein 

that read: “Time for some traffic problems in Fort Lee.” 

Supplemental App’x (S.A.) 42. Wildstein “understood that to 

mean it was time to change the lane configurations, the upper 

level of the George Washington Bridge in order to create traffic 

in the Borough of Fort Lee.” J.A. 1612. Wildstein testified 

that, on a follow up telephone call, Kelly told him that “Mayor 

Sokolich needed to fully understand that life would be more 

difficult for him in the second Christie term than it had been 

[i]n the first.” J.A. 1620. Wildstein admitted at trial that he 

agreed to change the lane configuration “[f]or the purpose of 

causing—of punishing Mark Sokolich, of creating a traffic jam 
8

that would punish him, send him a message,” and that there 

was no other reason for the change. J.A. 1621.

Wildstein testified he told Baroni he “received an email 

from Miss Kelly that [he] viewed as instructing [him] to begin 

to put leverage on Mayor Sokolich by doing a lane closure.” 

J.A. 1618. He also testified he told Baroni “that Miss Kelly 

wanted the Fort Lee lanes closed . . . [f]or the purpose of 

punishing Mayor Sokolich . . . [b]ecause he had not endorsed 

Governor Christie” and that “Mr. Baroni was fine with that.” 

J.A. 1623.

According to Wildstein, he decided “to create the cover 

of a traffic study” and shared his plan with both Baroni and 

Kelly. J.A. 1624. Wildstein believed “calling it a traffic study 

would provide a cover story for the true purpose of changing 

and realigning that traffic pattern at the bridge” and “to have a 

public policy reason for doing so as opposed to saying it was 

political and it was punitive and revealing the true purpose.”3 

 

3 Baroni’s position at trial and on appeal has been that “[a]t no 

point did Wildstein tell [him] that the purpose of realigning the 

lanes was political payback rather than to conduct a legitimate 

traffic study.” Baroni Br. at 14 n.4. While “Baroni 

acknowledges that Wildstein’s testimony alone is legally 

sufficient to permit a jury to conclude otherwise,” he contends 

“Wildstein committed perjury at trial.” Id. We cannot discount 

Wildstein’s testimony—which the jury evidently credited—

“for it is the exclusive province of the jury . . . to decide what 

facts are proved by competent evidence,” and “also their 

province to judge . . . the credibility of the witnesses . . . and 

the weight of their testimony.” Ewing’s Lessee v. Burnet, 36 
9

J.A. 1632. In furtherance of Defendants’ traffic study cover 

story, Wildstein contacted Peter Zipf, the Port Authority’s 

chief traffic engineer, and told him he wanted to take away the 

cones that created the Special Access Lanes “so that New 

Jersey could determine whether those three lanes given to Fort 

Lee would continue on a permanent basis.” J.A. 1657–58. 

Zipf responded later that day with various proposals but 

recommended that at least one segregated lane be left in place 

to prevent sideswipe crashes.

According to Wildstein, he and Baroni discussed when 

to implement the lane closure at the end of August 2013, and 

they selected Monday, September 9, 2013—the first day of 

school in Fort Lee. But Wildstein waited to give the instruction 

until Friday, September 6. He testified “[i]t was a deliberate 

effort on [his] part to wait until the last minute to give a final 

 

U.S. (11 Pet.) 41, 50–51 (1837); United States v. CaraballoRodriguez, 726 F.3d 418, 430 (3d Cir. 2013) (en banc) (“[W]e 

‘must be ever vigilant . . . not to usurp the role of the jury by 

weighing credibility and assigning weight to the evidence, or 

by substituting [our] judgment for that of the jury.’” (quoting 

United States v. Brodie, 403 F.3d 123, 133 (3d Cir. 2005)) 

(omission and second alteration in original)). But we observe 

that, in fashioning Baroni’s sentence, the District Judge applied 

a Guidelines enhancement for obstruction of justice, see 

U.S.S.G. § 3C1.1, in part because she found Baroni attempted 

“to mislead the jury in this case regarding [his] role in this 

conspiracy.” J.A. 5678. The trial judge concluded Baroni 

committed perjury at trial when he “continued to maintain the 

traffic study was legitimate when [he] clearly knew . . . that it 

was not.” Id. For similar reasons, Kelly also received this 

enhancement. 
10

instruction so that nobody at the Port Authority would let Fort 

Lee know, would communicate that to Fort Lee or anyone else 

within the Port Authority,” including Executive Director 

Patrick Foye. J.A. 1684. According to Wildstein, he discussed 

waiting to give the instruction with both Baroni and Kelly, who 

agreed. This directly contravened normal Port Authority 

protocol, with any lane closures announced to the public 

weeks, and even months, in advance. 

Wildstein gave the instruction to Zipf and two other Port 

Authority managers, Bob Durando (the general manager of the 

George Washington Bridge) and Cedric Fulton (the director of 

Tunnels, Bridges & Terminals), again claiming that New 

Jersey wanted to see whether the Special Access Lanes would 

remain permanent. When Fulton asked if Foye knew, 

Wildstein lied and said he did. Wildstein later told the same 

lie to Durando. 

Durando explained that because only one Special 

Access Lane would remain open, the Port Authority needed to 

pay an extra toll collector to be on relief duty for that sole toll 

collector. Wildstein discussed this with Baroni and Kelly, and 

none of the three saw a problem with this extra cost. Wildstein 

and Zipf also discussed collecting data on the ensuing traffic, 

and Wildstein testified he understood it would require “some 

staff time.” J.A. 1688.

On the morning of Monday, September 9, Port 

Authority police placed traffic cones two toll booths to the 

right of where they were customarily placed on the upper deck, 

thereby reducing the number of Special Access Lanes from 

three to one, and increasing the number of Main Line lanes 

from nine to eleven. This realignment meant that Fort Lee’s 
11

sole remaining Special Access Lane had to accept both cash 

and E-ZPass, further delaying traffic. As discussed, Fort Lee 

received no advance warning of the change—contrary to the 

Port Authority’s standard procedures. 

As a result of this change, cars attempting to cross the 

George Washington Bridge during the morning commute 

backed up into Fort Lee and gridlocked the entire town. Mayor 

Sokolich repeatedly attempted to contact Baroni and IGA to 

have the two other Special Access Lanes reinstated, but Baroni 

deliberately did not respond. Wildstein testified “that was the 

plan that [he] had come up with along with Mr. Baroni and 

Miss Kelly, which is that all calls would be directed to Mr. 

Baroni. And that Mr. Baroni would be radio silent. Meaning 

any—all the calls would come to him, and he wasn’t planning 

on returning any of them.” J.A. 1687–88.

On the morning of September 9, Mayor Sokolich called 

Baroni’s office about an “urgent matter of public safety in Fort 

Lee,” but received no response. S.A. 51. The Fort Lee 

borough administrator also called to say Fort Lee police and 

paramedics had difficulty responding to a missing child and a 

cardiac arrest. The next day, the mayor called again, saying 

the traffic was a “life/safety” issue and that paramedics had to 

leave their vehicle and respond to a call on foot. S.A. 54. 

Receiving no response to his calls, he then sent Baroni a letter 

on September 12 detailing the negative impact on public safety 

in Fort Lee. Kelly was similarly unmoved by the traffic and 

the anger it generated, reportedly smiling when a colleague at 

IGA informed her of the situation. 

Executive Director Foye first learned of the realignment 

on the evening of Thursday, September 12. The following 
12

morning, he sent an email to Baroni and others, criticizing the 

“hasty and ill-advised” realignment and ordering the 

restoration of the prior alignment with three Special Access 

Lanes. J.A. 1100–02, 5809. Baroni went to Foye’s office and 

asked that the realignment be put back into effect, with only 

one Special Access Lane for Fort Lee. Foye testified Baroni 

said the issue was “important to Trenton,” which Foye 

understood to reference the Governor’s Office. J.A. 1107–08. 

Foye refused to do so. Baroni returned to Foye’s office later

that day, again asked that two of Special Access Lanes be taken 

away from Fort Lee, and said the issue was “important to

Trenton” and “Trenton may call.” J.A. 1109. Foye held firm 

and continued to refuse. Wildstein testified Baroni reached out 

to David Samson, the New Jersey-appointed Chairman of the 

Port Authority, to “overrule Mr. Foye and talk to others on the 

New York side,” but Samson ultimately declined to do so, 

instead recommending Baroni “let it go.” J.A. 1832.

In response to significant public backlash, Baroni and 

Wildstein began preparing a report that would describe what 

happened as “a traffic study to determine whether it was fairer 

to give three lanes to Fort Lee.” J.A. 1870. The report would 

also have admitted that the Port Authority had failed to give 

Fort Lee appropriate notice due to an alleged “communications 

breakdown.” J.A. 1870. But the report was never released 

because Port Authority staff were asked to testify before the 

New Jersey State Assembly. See J.A. 1879–80. Wildstein 

helped Baroni prepare his testimony, which was based on the 

draft report and the traffic study and “fairness” rationale. 

Then-Governor Christie fired Wildstein on December 6 

and Baroni on December 12. Kelly was fired on January 9, 
13

2014. A federal criminal investigation followed and resulted 

in the underlying prosecution.

II. 

On April 23, 2015, a federal grand jury returned a ninecount indictment, charging Defendants with seven counts each. 

In Count 1, the grand jury charged Defendants with 

conspiracy to obtain by fraud, knowingly convert, or 

intentionally misapply property of an organization receiving 

federal benefits. 18 U.S.C. § 371. As charged, “[t]he object of 

the conspiracy was to misuse Port Authority property to 

facilitate and conceal the causing of traffic problems in Fort 

Lee as punishment of Mayor Sokolich.” J.A. 96. In Count 2,

Defendants were charged with the substantive offense of that 

conspiracy. The grand jury alleged Defendants, through Port 

Authority agents Baroni and Wildstein, “obtained by fraud, 

otherwise without authority knowingly converted to their use 

and the use of others, and intentionally misapplied property 

owned by and under the care, custody, and control of the Port 

Authority, with a value of at least $5,000.” J.A. 119; 18 U.S.C. 

§§ 666(a)(1)(A), 2. 

In Count 3, Defendants were charged with conspiracy 

to commit wire fraud. 18 U.S.C. § 1349. The charged “object 

of the conspiracy was to obtain money and property from the 

Port Authority and to deprive the Port Authority of its right to 

control its own assets by falsely representing and causing false 

representations to be made that the lane and toll booth 

reductions were for the purpose of a traffic study.” J.A. 120. 

In Counts 4 through 7, the grand jury charged each Defendant

with two substantive wire fraud violations. 18 U.S.C. §§ 1343,
14

2. Count 4 pertained to Kelly’s August 13, 2013 email 

informing Wildstein it was “[t]ime for some traffic problems 

in Fort Lee,” and Count 6 to her September 9, 2013 email 

thanking Wildstein for confirming there would be “[r]adio 

silence” from Baroni in response to Mayor Sokolich’s 

inquiries. J.A. 123 (second alteration in original). Counts 5

and 7 related to Baroni’s September 9 and 12, 2013 emails to 

Wildstein concerning complaints from Mayor Sokolich.

In Count 8, the grand jury charged Defendants with 

conspiracy against civil rights. 18 U.S.C. § 241. The charged 

“object of the conspiracy was to interfere with the localized 

travel rights of the residents of Fort Lee for the illegitimate 

purpose of causing significant traffic problems in Fort Lee to 

punish Mayor Sokolich.” J.A. 124. In Count 9, Defendants

were charged with the substantive violation. 18 U.S.C. §§ 242,

2. 

At the outset, Defendants moved to dismiss all the 

charges. See Fed. R. Crim. P. 12(b)(3)(B). The District Judge 

held oral argument and denied the motions. After a six-week 

trial, the jury found Defendants guilty on all counts. 

Defendants moved for judgments of acquittal, see Fed. R. 

Crim. P. 29, and for a new trial, see Fed. R. Crim. P. 33. Again, 

the trial judge denied the motions. She then sentenced Baroni

to 24 months’ imprisonment and Kelly to 18 months’ 

imprisonment. Defendants, who are free on bail pending this 

appeal, challenge only their judgments of conviction.4

 

4 The trial court had jurisdiction under 18 U.S.C. § 3231. We 

have jurisdiction over Defendants’ appeal of their judgments 

of conviction under 28 U.S.C. § 1291. 
15

III.

Defendants challenge the sufficiency of the evidence 

supporting their wire fraud and Section 666 convictions.

“We exercise plenary review over a district court’s 

grant or denial of a motion for judgment of acquittal based on

the sufficiency of the evidence,” United States v. Willis, 844 

F.3d 155, 164 n.21 (3d Cir. 2016), and we apply the same 

standard as the district court, see United States v. Ferriero, 866 

F.3d 107, 113 n.4 (3d Cir. 2017) (citing Jackson v. Virginia, 

443 U.S. 307, 319 (1979)). “A judgment of acquittal is 

appropriate under Federal Rule of Criminal Procedure 29 if, 

after reviewing the record in a light most favorable to the 

prosecution, we determine that no rational jury could have 

found proof of guilt beyond a reasonable doubt.” Willis, 844 

F.3d at 164 n.21. Where sufficiency arguments give rise to 

questions of statutory interpretation, our review is also plenary. 

See Ferriero, 866 F.3d at 113 n.4.

A.

Defendants challenge the sufficiency of the evidence 

underlying their wire fraud convictions. “A person violates the 

federal wire fraud statute by using interstate wires to execute 

‘any scheme or artifice to defraud, or for obtaining money or 

property by means of false or fraudulent pretenses, 

representations, or promises.’” Ferriero, 866 F.3d at 120 

(quoting 18 U.S.C. § 1343). Conspiracy to commit wire fraud 

is a separate crime subject to the same penalties as the 

substantive offense. See 18 U.S.C. § 1349. 
16

The Government’s theory at trial was that Defendants 

sent emails in furtherance of, and to execute, a scheme to 

defraud the Port Authority of physical property (i.e., the 

Special Access Lanes and toll booths) and money (i.e., public 

employee labor) in order to carry out the lane reductions. In 

summation, the Government explained this was the “same 

money, the salaries, the same property, the lanes, the toll 

booths,” that it alleged Defendants fraudulently obtained, 

knowingly converted, or intentionally misapplied in violation 

of 18 U.S.C. § 666. J.A. 5195. The Government explained:

The physical property that was misused were the 

local access lanes, themselves, and the toll 

booths. . . . The defendants agreed to use these 

Port Authority assets, that property, to purposely 

create a traffic jam in Fort Lee. That agreement 

was not a legitimate use of the George 

Washington Bridge, the Port Authority’s 

property.

J.A. 5193–94. The Government identified the “money” as “the 

salaries of each of the employees who wasted their time in 

furtherance of the defendants’ scheme,” including “the salary 

paid to the overtime toll booth collectors for the one remaining 

toll booth that was accessible to Fort Lee,” “the money paid to 

Baroni and Wildstein themselves while they . . . [were] wasting 

their time in furtherance of this conspiracy,” and “money paid 

to the engineers who wasted time—and Port Authority 

professional staff, who wasted time collecting data that no one 

ever wanted.” J.A. 5194. The Government also invoked the 

costs the Port Authority incurred in redoing a legitimate traffic 

study—at Center and Lemoine Avenues in Fort Lee—that was 
17

spoiled by the gridlock and “would not have been ruined 

without these lane reductions.” J.A. 5296.

According to the Government, Defendants’ untruthful 

claim they were conducting a traffic study was what allowed 

them to carry out the lane reductions and to obtain the Port 

Authority property and money necessary to do so. The 

Government also contended Defendants conspired with each 

other and Wildstein in furtherance of this fraudulent scheme. 

Defendants argue the evidence was insufficient to prove 

a scheme to defraud because (1) Baroni possessed unilateral

authority over Port Authority traffic patterns and any resources 

necessary to implement his decisions, and (2) the Port 

Authority was not deprived of any property right. In addition

to these challenges, Defendants contend the Government has 

disguised an impermissible honest services fraud case as a wire 

fraud case in an attempt to circumvent the Supreme Court’s 

decision in Skilling v. United States, 561 U.S. 358 (2010).

For reasons that follow, we hold the Government 

presented evidence sufficient to prove Defendants violated the 

wire fraud statute by depriving the Port Authority of, at a 

minimum, its money in the form of public employee labor.

1.

Defendants principally argue they could not have 

committed fraud because Baroni possessed the unilateral 

authority to control traffic patterns at Port Authority facilities 

and to marshal the resources necessary to implement his 

decisions.
18

They previously raised this argument in moving both to

dismiss the indictment and for judgments of acquittal or a new 

trial. Before trial, the District Judge declined to dismiss the 

wire fraud counts on this basis, holding the existence and scope 

of Baroni’s authority was a question of fact for the jury. After 

trial, the judge denied Defendants’ motions because that 

question was “one that the jurors resolved in favor of the 

prosecution.” J.A. 60. Carefully reviewing the relevant 

witness testimony, the judge held “the Government presented 

evidence at trial from which the jury could reasonably have 

found that Baroni did not have the authority to change the lane 

configurations, and in fact, did defraud the Port Authority.” 

J.A. 59. We agree.

Defendants rely on our opinion in United States v. 

Zauber, 857 F.2d 137 (3d Cir. 1988). There, the defendants 

were pension fund trustees who received kickbacks for 

investing in a mortgage company. See id. at 140–41. We held

the indictment failed to charge violations of the mail and wire 

fraud statutes because it did not allege “an actual money or 

property loss to the pension fund.” Id. at 147–48. In so 

holding, we observed, among other things, that the defendants,

“as trustees of the pension fund, had the power and the 

authority to invest the fund’s monies with others.” Id. at 147. 

Likening Baroni to the pension fund trustees in Zauber, 

Defendants argue “the undisputed evidence showed that 

Baroni’s position as co-head of the Port Authority gave him 

authority to make unilateral decisions about the alignment of 

traffic patterns at Port Authority facilities, and to command the 

resources needed to carry those decisions out.” Baroni Br. at 

42. We disagree.
19

As a preliminary matter, Zauber is inapposite because

here the grand jury alleged, and the Government proved at trial, 

that the Port Authority was actually deprived of its money and 

property. In any event, the evidence refutes the notion Baroni 

possessed “unilateral” authority to realign the bridge’s lanes. 

To the contrary, it reveals Defendants would not have been 

able to realign the lanes had Baroni and Wildstein provided the 

actual reason or no reason at all. They had to create the traffic 

study cover story in order to get Port Authority employees to 

implement the realignment. And, as we described above, 

Wildstein lied to Port Authority officials Durando and Fulton 

about whether Executive Director Foye knew of the 

realignment. This lie was necessary to keep Foye in the dark 

and prevent him from putting an immediate end to the scheme. 

In fact, that is exactly what happened when he finally learned 

of the realignment. Foye ordered the three Special Access 

Lanes be restored to the use of Fort Lee motorists and refused 

Baroni’s repeated entreaties to reinstate the realignment. 

Baroni then appealed to Chairman Samson, who declined to 

intervene and overrule Foye’s decision. This evidence belies 

Defendants’ assertion Baroni had anything approaching 

“authority to make unilateral decisions about the alignment of 

traffic patterns at Port Authority facilities.” Baroni Br. at 42. 

If that were so, Baroni could have reinstated the realignment 

on his own without needing to appeal to Foye and then Samson.

That Baroni was countermanded shows he lacked the 

unencumbered authority he claims he possessed, and that he 

needed to lie to realign the traffic patterns. The record contains 

overwhelming evidence from which a rational juror could have 

reached these conclusions. Indeed, it is difficult to see how any

rational juror could have concluded otherwise. The jury’s 

verdict necessarily reflects its rejection of Defendants’ 
20

argument that Baroni possessed unilateral authority to control 

the bridge.

Defendants contend we cannot draw this inference 

because the trial judge declined to give a jury instruction based 

on Zauber.

5

 We disagree. The judge instructed the jury that

 

5 Defendants requested the following language be added to the 

jury instructions:

However, if an organization grants or bestows 

upon an employee the power or authority to 

control the organization’s money or property, 

and the employee acts within the bounds of that 

power or authority, then you cannot find a 

scheme to defraud. Thus, if you find the Port 

Authority granted or bestowed upon David 

Wildstein or Mr. Baroni the power or authority 

to control the Port Authority money or property 

at issue here, and David Wildstein or Mr. Baroni 

acted within the bounds of that power or 

authority, then you cannot find a scheme to 

defraud existed. . . . Mr. Baroni and Ms. Kelly 

contend that the proof establishes that the Port 

Authority granted David Wildstein and Mr. 

Baroni the right to control the Port Authority 

money and property at issue here, which would 

prevent the existence of a scheme to defraud.

J.A. 307 (footnote omitted). The District Judge declined to 

adopt this language but told Defendants they were free to 

make this argument to the jury. While the Government 
21

[i]n order to establish a scheme to defraud, the 

Government must also prove that the alleged 

scheme contemplated depriving the Port 

Authority of money and property. An 

organization is deprived of money or property 

when the organization is deprived of the right to 

control that money or property. And one way the 

organization is deprived of the right to control 

that money and property is when the 

organization receives false or fraudulent 

statements that affect its ability to make 

discretionary economic decisions about what to 

do with that money or property. 

J.A. 5121–22. This instruction forecloses the possibility the 

jury convicted Defendants of fraud without finding Baroni 

lacked authority to realign the lanes. For Baroni could not 

deprive the Port Authority of money and property he was 

authorized to use for any purpose. Nor could he deprive the 

Port Authority of its right to control its money or property if 

that right to control were committed to his unilateral discretion. 

In finding the existence of a scheme to defraud, the jury 

necessarily concluded Baroni lacked authority to order the 

realignment. 

2.

Defendants also argue the Port Authority was not 

deprived of any tangible property and challenge the 

 

argued the realignment was unauthorized, Baroni instead 

chose to argue he acted in good faith and did not know the 

study was a sham. 
22

Government’s and District Court’s invocation of the “right to 

control” theory of property.

Before trial, the trial judge rejected Defendants’ related

argument the charges should be dismissed because they did not 

“obtain” money or property. Relying on our decision in United 

States v. Al Hedaithy, 392 F.3d 580 (3d Cir. 2004), the judge

ruled “it [wa]s enough that they prevented the Port Authority 

from exercising ‘its right to exclusive use of’ its property, 

which here allegedly includes toll booths and roadways, in 

addition to money in the form of employee compensation and 

the costs of redoing a traffic study.” J.A. 36–37. 

In their post-trial motions, however, Defendants raised 

no sufficiency arguments respecting the property at issue. 

Rather, they contended only that Baroni possessed the 

authority to realign the lanes. We note Defendants arguably 

forfeited their right to raise these issues on appeal by not

presenting them to the District Court.6 But we need not decide 

 

6 Nearly all our sister circuits have held that while a general 

sufficiency challenge is adequate to preserve specific 

sufficiency arguments on appeal, a defendant who seeks a 

judgment of acquittal on specific grounds forfeits on appeal all 

other grounds not specifically raised. See United States v. 

Samuels, 874 F.3d 1032, 1036 (8th Cir. 2017); United States v. 

Hosseini, 679 F.3d 544, 550 (7th Cir. 2012); United States v. 

Chong Lam, 677 F.3d 190, 200 (4th Cir. 2012); United States 

v. Cooper, 654 F.3d 1104, 1117 (10th Cir. 2011); United States 

v. Graf, 610 F.3d 1148, 1166 (9th Cir. 2010); United States v. 

Herrera, 313 F.3d 882, 884–85 (5th Cir. 2002) (en banc); 

United States v. Chance, 306 F.3d 356, 371 (6th Cir. 2002); 
23

that question because Defendants’ arguments are unpersuasive

under any standard of review.

The wire fraud statute proscribes “scheme[s] or 

artifice[s] to defraud, or for obtaining money or property by 

means of false or fraudulent pretenses.” 18 U.S.C. § 1343. As 

Defendants note, the federal fraud statutes require the 

defendants to scheme to defraud a victim of “property rights.” 

See McNally v. United States, 483 U.S. 350, 359–60 (1987)

(holding that the mail fraud statute is “limited in scope to the 

protection of property rights”). Those property rights, 

however, need not be tangible. See Carpenter v. United States, 

484 U.S. 19, 25 (1987) (“[Confidential business information’s] 

intangible nature does not make it any less ‘property’ protected 

by the mail and wire fraud statutes. McNally did not limit the 

scope of § 1341 to tangible as distinguished from intangible 

property rights.”); United States v. Henry, 29 F.3d 112, 113–

14 (3d Cir. 1994) (“Carpenter made clear, however, that 

although a property right is required under McNally, it need not 

be a tangible one.”).

 

United States v. Peña-Lora, 225 F.3d 17, 26 & n.5 (1st Cir. 

2000); United States v. Spinner, 152 F.3d 950, 955 (D.C. Cir. 

1998); United States v. Delano, 55 F.3d 720, 726 (2d Cir. 

1995); see also 2A Charles Alan Wright et al., Fed. Prac. & 

Proc. Crim. § 469 (4th ed. Apr. 2018) (“And if the defendant 

has asserted specific grounds in the trial court as the basis for 

a motion for acquittal, he or she cannot assert other grounds on 

appeal.”). We have not squarely addressed the question and 

need not do so here.
24

Defendants argue they “did not deprive the Port 

Authority of any tangible property.” Kelly Br. at 40. “After 

all,” they say, “the Port Authority still owns all of the lanes and 

tollbooths (and always has).” Id. But even assuming arguendo

Defendants are correct, the federal fraud statutes are not 

limited to protecting tangible property rights. “[T]o determine 

whether a particular interest is property for purposes of the 

fraud statutes, we look to whether the law traditionally has 

recognized and enforced it as a property right.” Henry, 29 F.3d 

at 115; see also United States v. Evans, 844 F.2d 36, 41 (2d 

Cir. 1988) (“That the right at issue here has not been treated as 

a property right in other contexts, and that there are many basic 

differences between it and common-law property[,] are 

relevant considerations in deciding whether the right is 

property under the federal fraud statutes.”).

The Government introduced ample evidence 

Defendants obtained by false or fraudulent pretenses, at a 

minimum, public employees’ labor. Their time and wages, in 

which the Port Authority maintains a financial interest, is a 

form of intangible property. Cf., e.g., United States v. Pintar, 

630 F.2d 1270, 1282 (8th Cir. 1980) (“[T]here was evidence of 

concealment in connection with the diversion of employee 

services. Assuming proof of fraud is necessary, this 

suffices.”).

7

 

Wildstein testified that, on the Friday before the lane 

reductions, he called Durando, the general manager of the 

George Washington Bridge, and said he wanted to study traffic 

 

7 As we will explain, it is well established that public employee 

labor is also property for the purposes of Section 666, which 

proscribes, inter alia, fraudulently obtaining property. See 

infra III.B.1.
25

patterns and see the effect of taking two lanes away from Fort 

Lee. Wildstein told Durando the New Jersey side of the Port 

Authority wanted to be able to “make a determination down 

the road as to whether those [Fort Lee] lanes would stay on a 

permanent basis.” J.A. 1685. Of course, as Wildstein admitted 

at trial, the traffic study rationale offered to Durando was not 

the real reason for the realignment. 

Among other things, Durando told Wildstein he would 

need to have a relief toll worker on duty because all of Fort 

Lee’s traffic would be going through one lane. Wildstein 

testified he “understood that the Port Authority would have to 

pay for an extra toll collector to be on relief duty for that first 

toll collector,” J.A. 1686, and discussed this cost with both 

Defendants. According to Wildstein, both Baroni and Kelly 

found it humorous that the Port Authority would have to “pay 

a second toll collector to sit and wait in case the first toll 

collector had to go to the bathroom,” and they had no problem 

with the extra cost. J.A. 1687. On Sunday, September 8, 2013, 

Wildstein emailed Durando to say he would “be at [the] bridge 

early Monday [morning] to view [the] new lane test.” S.A. 49. 

Durando replied that he would also be present, and that he had 

“also brought a toll collector in on overtime to keep toll lane 

24 (the extreme right hand toll lane Upper level) in the event 

the collector assigned to TL 24 needs a personal.” S.A. 49. 

Wildstein forwarded the email to Baroni. On crossexamination, Baroni admitted he had received the email and 

did not object to bringing in overtime toll booth workers. 

The Government also called Theresa Riva, a Port 

Authority employee who served as an Operations Planning 

Analyst for the George Washington Bridge during the relevant 

time period. In that capacity, Riva supervised time keeping for 
26

operations staff and managed scheduling and coverage for toll 

collectors. Riva testified she learned of the lane reductions the 

Friday before, and Bob Durando “asked [her] to staff one 

additional toll collector” on the upper level toll plaza twentyfour hours a day. J.A. 2897. Because toll collectors work 

eight-hour shifts, this meant “three toll collectors a day to be 

an excess toll collector in the toll house.” J.A. 2897. Riva 

testified all these additional toll collectors were paid an 

overtime rate “[b]ecause they either worked on their regular 

day off or in excess of eight hours, a double [shift].” J.A. 2898. 

Riva testified these employees would not have been paid 

absent the lane realignment. 

In addition to the overtime toll workers, Wildstein 

discussed with Zipf using Port Authority professional staff to 

track data, which would include “numbers on how—how many 

cars were involved and how far back the traffic was delayed.” 

J.A. 1688. Wildstein understood Zipf “would have to use some 

staff time.” J.A. 1688. At trial, the staff members testified to 

the significant amount of time they spent performing 

unnecessary work related to the realignment.

Amy Hwang, Senior Operations Planning Analyst for 

the Port Authority, testified she collected data on traffic at the 

bridge and compared it to traffic on the same date the year 

before. Hwang testified she spent two hours working on the 

traffic study per day from Monday, September 9, through 

Friday, September 13, for a total of 10 hours. 

Victor Chung, Senior Transportation Planner for the 

Port Authority, was asked to forecast the impact of reducing 

Fort Lee’s Special Access Lanes from three to one. Chung 

testified he spent a little over eight hours doing this analysis on 
27

the Friday before the reductions went into effect. During the 

week of the reductions, Chung was asked to compare travel 

times approaching the bridge’s upper-level toll plaza during 

peak hours and to compare it to historical travel times. Chung 

testified he spent about six hours on this analysis, for a total of 

14 hours spent on unnecessary work. 

And Umang Patel, Staff Service Engineer in the Port 

Authority’s Traffic Engineering department, downloaded and 

analyzed data relating to travel time on the Main Line during 

the lane reductions. Patel testified he spent two hours 

discussing the lane reductions on Monday, September 9, and 

four hours per day analyzing data on Tuesday, September 10, 

through Thursday, September 12, for a total of fourteen hours. 

Moreover, Wildstein estimated he spent twenty-five to 

thirty hours working on the lane reductions, and that Baroni 

spent fifteen to twenty hours, for a total of forty to fifty hours. 

Their compensation is plainly “money” for the purposes of the 

wire fraud statute.8

The Government’s evidence that Defendants

fraudulently conscripted fourteen Port Authority employees 

into their service, and that Baroni and Wildstein accepted 

compensation for time spent conspiring to defraud the Port 

Authority, is alone sufficient for a rational juror to have 

 

8 As we will explain, Section 666 contains a safe harbor for, 

among other things, bona fide compensation. See 18 U.S.C. 

§ 666(c). That safe harbor applies only to that statute and does 

not affect our analysis of the money and property at the heart 

of the wire fraud counts.
28

concluded Defendants deprived the Port Authority of its 

money or property. 

Although we need not reach or decide Defendant’s 

arguments on the “right to control” theory9in light of our 

holding, we recognize this traditional concept of property 

provides an alternative basis upon which to conclude 

Defendants defrauded the Port Authority. As Baroni notes,

 

9 Although each Defendant has fully adopted the arguments 

made in the other’s brief, see Baroni Br. at 2 n.1; Kelly Br. at 

4 n.1; Fed. R. App. P. 28(i), their positions on the “right to 

control” theory of property are in conflict. Baroni appears to 

accept as a background principle of law our precedent that 

“[i]ncluded within the meaning of money or property is the 

victim’s ‘right to control’ that money or property.” Baroni Br. 

at 41 (citing Al Hedaithy, 392 F.3d at 601–03). Kelly, on the 

other hand, argues at considerable length that “the theory that 

the Port Authority had been deprived of its supposed intangible

property right to ‘control’ the use of its own ‘assets’ . . . fails 

as a matter of law.” Kelly Br. at 40; see id. at 41 (“The 

Government has tried to sell this ‘right to control’ theory 

before, under far more egregious circumstances, but this Court 

did not buy it even there.”); id. at 42 (“In any event, whatever 

force the ‘right to control’ concept may have in the private 

sector, it cannot be imported to condemn a state official who 

makes regulatory decisions.”); id. at 45 (“The Government and 

the District Court invoked [Al Hedaithy] to support the ‘right 

to control’ theory. . . . It is utterly inapposite here.”); id. at 46 

(“In fact, the ‘right to control’ theory is hotly contested among 

the Courts of Appeals.”). 
29

“[i]ncluded within the meaning of money or property is the 

victim’s ‘right to control’ that money or property.” Baroni Br. 

at 41 (citing Al Hedaithy, 392 F.3d at 601–03); see Carpenter,

484 U.S. at 26–27 (holding “[t]he [Wall Street] Journal had a 

property right in keeping confidential and making exclusive 

use, prior to publication, of the schedule and contents of the 

‘Heard’ column” and that “it is sufficient that the Journal has 

been deprived of its right to exclusive use of the information, 

for exclusivity is an important aspect of confidential business 

information and most private property for that matter” 

(emphasis added)); Al Hedaithy, 392 F.3d at 603 (“[T]he 

deprivation in this case is identical to that asserted in 

Carpenter, i.e., the deprivation of ETS’s right to exclusive use

of its property.”); 2 William Blackstone, Commentaries *2

(describing “the right of property” as “that sole and despotic 

dominion which one man claims and exercises over the 

external things of the world, in total exclusion of the right of 

any other individual in the universe”).

The George Washington Bridge is the world’s busiest 

motor vehicle bridge10 leading to our nation’s most populous 

city. The Port Authority’s physical property—the bridge’s 

lanes and toll booths—are revenue-generating assets. The Port 

Authority has an unquestionable property interest in the 

bridge’s exclusive operation, including the allocation of traffic 

through its lanes and of the public employee resources 

 

10 See George Washington Bridge, Port Auth. of N.Y. & N.J., 

http://www.panynj.gov/bridges-tunnels/george-washingtonbridge.html (“The busiest bridge in the world, connecting 

northern Manhattan and Fort Lee, NJ.”) (last visited Nov. 8, 

2018).
30

necessary to keep vehicles moving. Defendants invented a 

sham traffic study to usurp that exclusive interest, reallocating 

the flow of traffic and commandeering public employee time 

in a manner that made no economic or practical sense. Indeed, 

the realignment—intended to limit access to the bridge and 

gridlock an entire town—was impractical by design.

In sum, Defendants’ arguments concerning the property 

interest at issue fall far short.

3.

Finally, Defendants argue we “should reject the 

government’s attempt to shoehorn a repudiated theory of 

honest services fraud into an ill-fitting theory of money or 

property fraud.” Baroni Br. at 44.

In denying Defendants’ post-trial motions, the District 

Court summarily rejected this argument, holding “[t]here is a 

difference . . . between intangible rights to honest services not 

covered by the wire fraud statute, and intangible property 

rights which are.” J.A. 60 n.15 (citing Carpenter, 484 U.S. at 

25, and McNally, 483 U.S. at 356). We agree.

Defendants primarily rely on the Supreme Court’s 

decision in Skilling v. United States, 561 U.S. 358 (2010), 

which narrowed the scope of the honest services statute, 18 

U.S.C. § 1346. After the Supreme Court ruled in McNally that 

the mail fraud statute was “limited in scope to the protection of 

property rights,” Skilling, 561 U.S. at 402 (quoting McNally, 

483 U.S. at 360), Congress enacted Section 1346 “specifically 

to cover one of the ‘intangible rights’ that lower courts had 

protected . . . prior to McNally: ‘the intangible right of honest 
31

services,’” id. (quoting Cleveland v. United States, 531 U.S. 

12, 19–20 (2000)). That statute provides, for the purposes of 

the mail and wire fraud statutes, that “the term ‘scheme or 

artifice to defraud’ includes a scheme or artifice to deprive 

another of the intangible right of honest services.” Id. (quoting 

18 U.S.C. § 1346). In Skilling, the Supreme Court 

acknowledged “Congress intended § 1346 to refer to and

incorporate the honest-services doctrine recognized in Courts

of Appeals’ decisions before McNally derailed the intangiblerights theory of fraud.” Id. at 404. But it also recognized a 

broad reading of the statute “would raise the due process 

concerns underlying the vagueness doctrine.” Id. at 408. In 

order to preserve the statute, the Court surveyed pre-McNally

honest services case law, see id. 404–08, and concluded “there 

is no doubt that Congress intended § 1346 to reach at least

bribes and kickbacks,” id. at 408. Accordingly, the Court 

limited the application of Section 1346 to “the bribe-andkickback core of the pre-McNally case law.” Id. at 409.

Defendants argue it cannot be a crime “for a public 

official to take official action based on concealed ‘political 

interests.’” Baroni Br. at 48. And they warn that “[t]he 

government’s theory—that acting with a concealed political 

interest nonetheless becomes mail or wire fraud so long as the 

public official uses any government resources to make or 

effectuate the decision—would render the Supreme Court’s 

carefully considered limitation [on honest services fraud] a 

nullity.” Baroni Br. at 48. According to Defendants, “[i]t 

cannot be the case that the Supreme Court has pointedly and 

repeatedly rebuffed the government’s attempts to prosecute 

public officials for the deprivation of the public’s intangible 

right to honest services or honest government if, all along, the 

inevitable use of at least a peppercorn of public money or 
32

property made every instance of such conduct prosecutable as 

money or property fraud.”11 Baroni Br. at 48–49. 

We are mindful of the Supreme Court’s honest services 

case law but do not believe it counsels a different result in this 

case. Defendants were charged with simple money and 

property fraud under Section 1343—not honest services 

fraud—and the grand jury alleged an actual money and 

property loss to the Port Authority. In any event, their conduct 

in this case can hardly be characterized as “official action” that 

was merely influenced by political considerations. Defendants 

invented a cover story about a traffic study for the sole purpose 

of reducing Fort Lee’s access to the George Washington 

Bridge and creating gridlock in the Borough. Trial testimony 

established that everything about the way this “study” was 

executed contravened established Port Authority protocol and 

procedures. Indeed, witnesses testified that traffic studies are 

 

11 In passing, Defendants also contend their convictions raise 

First Amendment concerns because they represent “a criminal 

penalty for misleading political speech.” Baroni Br. at 49 

(quoting United States v. Blagojevich, 794 F.3d 729, 736 (7th 

Cir. 2015)); see also Kelly Br. at 44 (“Moreover, given its 

implications for core political speech, this theory raises real 

First Amendment issues.”). These arguments—to which 

Defendants devote a mere three sentences between their two 

briefs—have not been sufficiently presented or developed. We 

agree with the Government they are waived. See John Wyeth 

& Bro. Ltd. v. Cigna Int’l Corp., 119 F.3d 1070, 1076 n.6 (3d 

Cir. 1997) (“[A]rguments raised in passing (such as, in a 

footnote), but not squarely argued, are considered waived.”).
33

usually conducted by computer modeling, without the need to 

realign traffic patterns or disrupt actual traffic. When traffic 

disruptions are anticipated, the Port Authority gives advance 

public notice. And, as we have discussed, the evidence 

conclusively demonstrates Baroni lacked the authority to 

realign the bridge’s traffic patterns unilaterally.

It is hard to see, under Defendants’ theory, how a public 

official could ever be charged with simple mail or wire fraud. 

They appear to suggest that, as public officials, any fraud case 

against them necessarily entails intangible right to honest 

services. That is not so. As we have explained, Defendants 

were charged with defrauding the Port Authority of its money 

and property12—not the intangible right to their honest 

services. Prosecutions of public officials for defrauding the 

government of money and property are unfortunately quite 

common. See, e.g., United States v. James, 888 F.3d 42 (3d 

Cir. 2018) (former Virgin Islands senator charged with wire 

fraud and Section 666(a)(1)(A) violations for obtaining 

 

12 The trial evidence is sufficient to show Defendants deprived 

the Port Authority of much more than a “peppercorn of public 

money or property,” Baroni Br. at 49. In any event, as the 

Government notes, the wire fraud statute contains no monetary 

threshold. See 18 U.S.C. § 1343; cf. United States v. DeFries, 

43 F.3d 707, 709 (D.C. Cir. 1995) (“It is difficult to see where 

the defendants find this de minimis exception. The [federal] 

fraud statute speaks only of ‘money or property’ generally, not 

of property above a certain value. . . . Given the absence of 

any statutory hint of a threshold minimum, it is hardly 

surprising that several courts have found [the statute] 

applicable to what at first glance appear to be exceedingly 

small property interests.”).
34

legislature funds under false pretenses); United States v. Fumo, 

655 F.3d 288 (3d Cir. 2011) (Pennsylvania state senator 

convicted of mail and wire fraud for using state-paid 

employees for personal and political tasks in violation of state 

ethics laws); United States v. Bryant, 655 F.3d 232 (3d Cir. 

2011) (New Jersey state senator charged with mail fraud for 

fraudulently inflating pension eligibility through no-show 

jobs); United States v. Williams, No. 17-137, 2017 WL 

2716698 (E.D. Pa. June 6, 2017) (Philadelphia district attorney 

charged with mail and wire fraud for defrauding city and 

federal government of use of publicly owned vehicles). 

Defendants also argue their convictions pose federalism 

concerns and would “involve[] the Federal Government in 

setting standards of good government for local and state 

officials.” Baroni Br. at 49 (quoting McNally, 483 U.S. at 360). 

Again, we disagree. This case lacks the federalism concerns 

present in McNally, where the federal government prosecuted 

a Kentucky state official and a private citizen for their role in a 

“self-dealing patronage scheme” involving the state’s purchase 

of insurance policies. See 483 U.S. at 352–53. But unlike a

typical state or local governmental body, the Port Authority is

an interstate agency created by Congressional consent, see 

H.R.J. Res. 337, 67th Cong. (1922) (enacted), and Defendants 

acknowledge it receives substantial federal funding. The 

federal government thus has an especially significant interest 

in protecting the Port Authority’s financial and operational 

integrity.

* * *

In sum, the Government presented sufficient evidence 

for the jury to convict Defendants of wire fraud. 
35

B.

Defendants’ other sufficiency challenge contests their 

Section 666 convictions. In relevant part, Section 666 

provides:

(a) Whoever, if the circumstance described in 

subsection (b) of this section

exists—

(1) being an agent of an organization, or 

of a State, local, or Indian tribal 

government, or any agency thereof—

(A) embezzles, steals, obtains by 

fraud, or otherwise without 

authority knowingly converts 

to the use of any person other 

than the rightful owner or 

intentionally misapplies, 

property that—

(i) is valued at $5,000 or 

more, and

(ii) is owned by, or is 

under the care, 

custody, or control of 

such organization, 

government, or 

agency; . . .

shall be fined under this title, imprisoned not 

more than 10 years, or both.
36

(b) The circumstance referred to in subsection 

(a) of this section is that the organization, 

government, or agency receives, in any one 

year period, benefits in excess of $10,000 

under a Federal program involving a grant, 

contract, subsidy, loan, guarantee, insurance, 

or other form of Federal assistance.

18 U.S.C. § 666(a)(1)(A), (b).

Accordingly, a violation of Section 666(a)(1)(A)

requires proof of five elements. The government must prove 

that: (1) a defendant was an agent of an organization, 

government, or agency; (2) in a one-year period that

organization, government, or agency received federal benefits 

in excess of $10,000; (3) a defendant stole, embezzled, 

obtained by fraud, knowingly converted, or intentionally 

misapplied property; (4) that property was owned by, or in the 

care, custody, or control of, the organization, government, or 

entity; and (5) the value of that property was at least $5,000.13

See id.

 

13 In this case, with the parties’ agreement, the trial court 

instructed the jury on these five elements consistent with the 

Third Circuit Model Jury Instruction:

In order to find the defendants guilty of violating

Section 666(a)(1)(A), you must find that the 

Government proved each of the following five 

elements beyond a reasonable doubt. First, that 

from August through December, 2013, Mr. 

Baroni or Mr. Wildstein was an agent of the Port 
37

Defendants’ appeal involves only the third and fifth 

elements14—whether they obtained by fraud, knowingly 

converted, or intentionally misapplied Port Authority property

(the actus reus), and whether that property was worth at least 

$5,000.

As with the wire fraud counts, the Government’s theory 

at trial was that the property at issue fell into two categories: 

physical property (i.e., the Special Access Lanes and toll 

booths) and money (i.e., employee labor).

 

Authority. Second, that in the calendar year 

2013, the Port Authority received federal 

benefits in excess of $10,000. Third, that the 

defendants obtained by fraud, knowingly 

converted, or intentionally misapplied Port 

Authority property. Fourth, that the property 

obtained by fraud, knowingly converted, or 

intentionally misapplied, was owned by or was 

in the care, custody or control of the Port 

Authority. And fifth, that the value of the 

property obtained by fraud, knowingly 

converted, or intentionally misapplied was at 

least $5,000.

J.A. 5107.

14 Defendants conceded that Baroni and Wildstein were agents 

of the Port Authority and stipulated that the Port Authority 

received federal funds in excess of $10,000 in 2013.
38

Defendants argue the evidence was insufficient to prove 

a violation of Section 666 because (1) that provision

criminalizes theft, not the allocation of a public resource based 

on political considerations, and (2) the value of the property at 

issue was under $5,000.

For reasons that follow, we hold the Government

presented evidence sufficient to prove Defendants violated 

Section 666 by fraudulently obtaining, at a minimum, the labor

of Port Authority employees in furtherance of their scheme,

and that the value of that labor exceeded the statute’s $5,000 

threshold.

1.

Defendants broadly argue they merely allocated a 

public resource based on political considerations, which cannot 

be criminal. Offering an analogy, Kelly contends Defendants’ 

conduct is “materially indistinguishable” from that of a mayor 

who, after a heavy snowfall, directs city employees to plow the 

streets of a ward that supported her before getting to a ward 

that supported her opponent. Kelly Br. at 1. Baroni makes 

similar arguments. See Baroni Br. at 31 (“In any event, it is 

obvious that there is nothing illegal about allocating public 

resources to favor political supporters and allies. Budgets are 

enacted, projects are funded, pork is doled out, potholes are 

filled, and snow is plowed at every level of government with 

political considerations in mind.”). 

While such analogies have some superficial appeal, we

find them unpersuasive. We agree with the District Court that 

this argument “conflates motive . . . with mens reas and 

conduct.” J.A. 54. Defendants altered the bridge’s decades-
39

old lane alignment—without authorization and in direct 

contravention of Port Authority protocol—for the sole purpose 

of creating gridlock in Fort Lee. To execute their scheme, they 

conscripted fourteen Port Authority employees to do sham 

work in pursuit of no legitimate Port Authority aim. That 

Defendants were politically motivated does not remove their 

intentional conduct from the ambit of the federal criminal law. 

What Defendants did here is hardly analogous to a situation 

where a mayor allows political considerations to influence her 

discretionary allocation of limited government resources in the 

normal course of municipal operations. There is no facially 

legitimate justification for Defendants’ conduct here.

Nor are we persuaded by Defendants’ arguments that 

the Government has sought to expand the reach of Section 666 

beyond conduct involving bribery and theft. Relying upon our 

decision in United States v. Cicco, 938 F.2d 441 (3d Cir. 1991), 

Defendants contend the Government is attempting to use 

Section 666 “to criminalize a public official’s efforts to 

allocate or reallocate public resources based on politics.” 

Baroni Br. at 24. In that case, Cicco, a mayor, declined to 

rehire two auxiliary police officers because they failed to 

support the Democratic Party in a local election. See Cicco, 

938 F.2d at 443. The Government filed a multi-count 

indictment charging Cicco and a member of the town council 

with, among other things, violations of Section 666’s 

anti-bribery provision, 18 U.S.C. § 666(a)(1)(B). See id. After 

the jury found the defendants guilty, the trial court entered a 

judgment of acquittal on the Section 666 counts, reasoning 

Congress did not intend for the statute to apply to their conduct 

and that it was unconstitutionally vague. See id. at 444.
40

On appeal, we recognized Section 666, read literally, 

might cover the defendants’ use of municipal employment to 

solicit election day services as a form of quid pro quo, but that 

the statute’s language was “also consistent with an intention of 

focusing solely on offenses involving theft or bribery, the 

crimes identified in the title of that section.” Id. at 444. 

Because we found the statute ambiguous, we turned to the 

legislative history. Concluding “the crimes Congress targeted 

when it created § 666 are simply different in kind than those 

alleged” against the defendants, we held they did not violate 

the statute. Id. at 445–46. We also observed that the conduct 

in question—deprivation of public employment to solicit 

political contributions—was within the ambit of a different 

criminal statute, 18 U.S.C. § 601. See id. at 446.

The Government responds that Cicco is inapposite 

because the conduct at issue in that case “potentially implicated 

the bribery provisions of § 666(a)(1)(B), but has nothing to do 

with property obtained by fraud, converted or otherwise 

intentionally misapplied.” Gov’t Br. at 38. We agree that this 

case is not like Cicco.

But Cicco is instructive here. Our exposition of Section 

666’s legislative history—which was not limited to Section 

666’s bribery provisions—confirms that Defendants’ conduct 

in this case falls squarely within the statute’s purpose. As we 

explained in Cicco, Congress enacted Section 666 as part of 

the Comprehensive Crime Bill of 1984. See 938 F.2d at 444. 

We noted “[t]he provision was ‘designed to create new 

offenses to augment the ability of the United States to vindicate 

significant acts of theft, fraud, and bribery involving Federal 

monies which are disbursed to private organizations or State 

and local governments pursuant to a Federal program.’” Id.
41

(quoting S. Rep. No. 98-225, at 369 (1984), as reprinted in 

1984 U.S.C.C.A.N. 3182, 3510). We observed “[t]he Senate 

Report expressly notes that Congress wished the new statutory 

provision to be interpreted ‘consistent with the purpose of this 

section to protect the integrity of the vast sums of money 

distributed through Federal programs from theft, fraud, and 

undue influence by bribery.’” Id. at 444 (quoting S. Rep. No. 

98-225, at 370, 1984 U.S.C.C.A.N. at 3511). And “[w]e 

quote[d] extensively from the legislative history to illustrate 

that Congress intended § 666 to redress particular deficiencies 

in identified existing statutes.”15 Id. at 444–45.

 

15 The legislative history reveals Congress intended for Section 

666 to augment two existing statutes, 18 U.S.C. §§ 641 and 

665. Section 641, “the general theft of Federal property 

statute,” applies “only if it can be shown that the property 

stolen is property of the United States.” Cicco, 938 F.2d at 445 

(quoting S. Rep. No. 98-225, at 370, 1984 U.S.C.C.A.N. at 

3511). As we recounted, the Senate Report explains:

In many cases, such prosecution is impossible 

because title has passed to the recipient before 

the property is stolen, or the funds are so 

commingled that the Federal character of the 

funds cannot be shown. This situation gives rise 

to a serious gap in the law, since even though title 

to the monies may have passed, the Federal 

Government clearly retains a strong interest in 

assuring the integrity of such program funds.

Id. (quoting S. Rep. No. 98-225, at 370, 1984 U.S.C.C.A.N. 

at 3511). And while Section 665 makes it a crime for an 
42

We have subsequently reaffirmed our understanding 

that Congress intended Section 666 to focus on offenses 

involving fraud and theft, observing “that Congress intended 

to expand the federal government’s prosecutorial power to 

encompass significant misapplication of federal funds at a 

local level.” United States v. Willis, 844 F.3d 165, 165 (3d Cir. 

2016) (quoting United States v. Valentine, 63 F.3d 459, 463 

(6th Cir. 1995)). We have also “not[ed] that courts have been 

wary of interpreting § 666 too narrowly” and that “the 

Supreme Court has repeatedly avoided constructions of § 666 

that would impose limits beyond those set out in the plain 

meaning of the statute.” Id. at 166. Although all of the relevant 

Supreme Court cases involve challenges to Section 666’s 

bribery provisions, their discussion of the statute’s text and 

legislative history validate our long-established understanding 

of the statute’s purpose and scope.

In Salinas v. United States, 522 U.S. 52 (1997), for 

example, the petitioner contended the Government must prove 

a connection between a bribe and federal funds to obtain a 

conviction under Section 666(a)(1)(B). Id. at 55–56. The 

Supreme Court disagreed, holding that Section 666’s bribery 

prohibition “is not confined to a business or transaction which 

 

agency officer or employee to steal federal job training funds, 

there was no statute of general applicability pertaining to theft 

or embezzlement by such individuals. See id. Thus Congress 

enacted Section 666, in part, to correct the deficiencies in 

these provisions. “The goal was to protect federal funds by 

authorizing federal prosecutions of thefts and embezzlement 

from programs receiving substantial federal support even if 

the property involved no longer belonged to the federal 

government.” Id.
43

affects federal funds.” Id. at 57. Relying upon the statute’s 

“expansive, unqualified language, both as to the bribes 

forbidden and the entities covered,” id. at 56, and “the broad 

definition of the ‘circumstances’ to which the statute applies,” 

the Court found “no textual basis for limiting the reach of the 

bribery prohibition,” id. at 57. The Court held the statute was 

unambiguous on this point because it would “be ‘plain to 

anyone reading the Act’ that the statute encompasses the 

conduct at issue,” id. at 60 (quoting Gregory v. Ashcroft, 501 

U.S. 452, 467 (1991)). 

The Court next addressed Section 666 in Fischer v. 

United States, 529 U.S. 667 (2000). At issue was whether 

Medicare payments paid to a hospital constituted federal 

“benefits” for the purposes of Section 666(b). Id. at 669. The 

petitioner argued the qualifying patient was the sole 

beneficiary of payments made under the Medicare program

and that hospitals were merely being compensated for services 

rendered. See id. at 676. The Court disagreed, holding that a 

federal assistance program can have multiple beneficiaries, and 

that participating health care organizations were also 

beneficiaries under the Medicare program. See id. at 677–81. 

The Court reasoned, in part, that “[c]oupled with the broad 

substantive prohibitions of subsection (a), the language of 

subsection (b) reveals Congress’ expansive, unambiguous 

intent to ensure the integrity of organizations participating in 

federal assistance programs.” Id. at 678.

Finally, in Sabri v. United States, 541 U.S. 600 (2004), 

the Supreme Court addressed another challenge to Section 

666’s bribery provision. The petitioner argued, inter alia, that 

Section 666(a)(2) could “never be applied constitutionally 

because it fails to require proof of any connection between a 
44

bribe or kickback and some federal money.” Id. at 604. The 

Court disagreed, holding that the Necessary and Proper Clause 

gives Congress the power “to see to it that taxpayer dollars 

appropriated under [its Spending Clause] power are in fact 

spent for the general welfare, and not frittered away in graft or 

on projects undermined when funds are siphoned off or corrupt 

public officers are derelict about demanding value for dollars.” 

Id. at 605. The Court thus held “[i]t is certainly enough that 

the statutes condition the offense on a threshold amount of 

federal dollars defining the federal interest, such as that 

provided here.” Id. at 606. To confirm its understanding of 

the statute, the Court relied upon the same legislative history 

we discussed extensively in Cicco:

For those of us who accept help from legislative 

history, it is worth noting that the legislative 

record confirms that § 666(a)(2) is an instance of 

necessary and proper legislation. The design 

was generally to ‘protect the integrity of the vast 

sums of money distributed through Federal 

programs from theft, fraud, and undue influence 

by bribery,’ see S.Rep. No. 98-225, p. 370 

(1983), in contrast to prior federal law affording 

only two limited opportunities to prosecute such 

threats to the federal interest: 18 U.S.C. § 641, 

the federal theft statute, and § 201, the federal 

bribery law. Those laws had proven inadequate 

to the task. The [federal theft statute] went only 

to outright theft of unadulterated federal 

funds . . . .

Id. Recognizing that the statute was intended to address 

offenses involving fraud and theft, the Court held that 
45

“Congress was within its prerogative to protect spending 

objects from the menace of local administrators on the take.” 

Id. at 608.

Defendants’ reliance on United States v. Thompson, 484 

F.3d 877 (7th Cir. 2007), is also misplaced. In that case, 

Thompson, a Wisconsin state procurement official, was 

prosecuted for steering a contract to a local travel agency, 

allegedly in violation of state procurement statutes and 

regulations. See id. at 878–80. The government’s theory had 

been that Thompson “‘intentionally misapplie[d]’ more than 

$5,000 by diverting it” away from the firm that should have 

been selected under the state’s procurement regulations. Id. at 

880. The Seventh Circuit was not convinced that Thompson’s 

decision actually violated the state’s regulations. See id. at 

880–81. And it observed that, unlike “[a]pproving a payment 

for goods or services not supplied,” her conduct “d[id] not 

sound like ‘misapplication’ of funds.” Id. at 881. 

Significantly, the firm she selected was actually the low bidder, 

and “[t]he federal government saved money because of 

Thompson’s decisions.” Id. The Seventh Circuit turned to the 

statute’s caption—“Theft or bribery concerning programs 

receiving Federal funds”—because “the word ‘misapplies’ is 

not a defined term.” Id. Relying on that caption and the Rule 

of Lenity, the Seventh Circuit adopted a more narrow reading 

of intentional misapplication “that limits § 666 to theft, 

extortion, bribery, and similarly corrupt acts.” Id. The Court 

further commented it did not believe a state official’s violation 

of state regulations and statutes—even if intentional—would 

violate Section 666 “unless the public employee is on the take.” 

Id.
46

Thompson is distinguishable. Thompson applied the 

state’s procurement regulations in a way that actually saved the 

federal government money and caused no loss. Defendants, on 

the other hand, lied in order to obtain public employee labor

from fourteen Port Authority employees. They forced the Port 

Authority to pay unnecessary overtime to toll workers and 

diverted well-paid professional staff away from legitimate Port 

Authority business. Their fraud is soundly within the scope of 

conduct Congress sought to proscribe in Section 666.

We hold that, at a minimum, the Government offered a 

valid theory that Defendants fraudulently obtained, knowingly 

converted, or intentionally misapplied the labor of Port 

Authority employees, and that it offered evidence sufficient to 

sustain Defendants’ convictions.

It is well established that public employees’ labor is

property for the purposes of Section 666. See, e.g., United 

States v. Sanderson, 966 F.2d 184, 189 (6th Cir. 1992) 

(concluding the defendant’s “theft of employee time [wa]s as 

much a theft of property as his theft of [physical property], for 

the purposes of his section 666(a)(1)(A) conviction”); accord

United States v. Genova, 333 F.3d 750, 758–59 (7th Cir. 2003) 

(affirming conviction under Section 666(a)(1)(A) where the 

defendant used public works employees for political labor); 

United States v. Delano, 55 F.3d 720, 729 (2d Cir. 1995) 

(holding indictment sufficiently detailed instance of theft of 

“the labor of [the defendant’s] employees”).

We have explained, in addressing Defendants’ 

sufficiency challenge to the wire fraud counts, how they 

defrauded the Port Authority of the labor of fourteen public

employees—eleven toll collectors paid overtime and three 
47

professional staff members—in furtherance of the scheme. 

Those public employees spent hours doing work that was 

unnecessary and furthered no legitimate Port Authority aim. 

Defendants were able to obtain these employees’ labor only by 

lying about the purpose of the realignment, claiming they were 

conducting a traffic study.

Defendants argue they could not have misapplied Port 

Authority employee labor because they did not receive a 

“personal pecuniary benefit.” Baroni Br. at 27. We disagree. 

Defendants had Port Authority employees do work they would 

not have otherwise done to further their personal scheme. The 

fact Defendants sought to benefit politically, not monetarily, 

does not alter the fact they forced the Port Authority to pay toll 

workers overtime, and diverted the time of salaried

professional staff, in furtherance of no legitimate purpose. Cf.

Genova, 333 F.3d 758–59 (explaining that “the point of the 

§ 666 prosecution is that political activities are not the 

performance of a garbage collector’s official duties,” and that 

while “Public Works employees were entitled to unpaid leave 

for political endeavors[,] the § 666 problem was paying them 

for that time”). 

Defendants argue this interpretation raises 

constitutional vagueness concerns. We disagree. At trial, the 

Government introduced evidence that, after Jersey City Mayor 

Steven Fulop declined to endorse Governor Christie, the

Governor’s office directed state agencies (including the Port 

Authority) to cancel meetings with Fulop and otherwise ignore 

him. In seeking to admit this evidence, see Fed. R. Evid.

404(b), the Government argued there was no danger of unfair 

prejudice because “[t]he mistreatment of Mayor Fulop, while 

hardly reflective of good government, was not criminal and 
48

thus, was less serious than the criminal conduct for which 

Defendants stand accused, conduct that needlessly imperiled 

public safety in Fort Lee and directly inconvenienced 

thousands of people.” J.A. 259–60. Defendants contend it is 

not clear why their mistreatment of Mayor Sokolich is 

criminal, but their mistreatment of Mayor Fulop was not, and 

that “[t]his inconsistency demonstrates the inherent 

arbitrariness of the government’s interpretation of Section 

666.” Baroni Br. at 40. Defendants again conflate motive with 

conduct. While their decision to punish Mayor Fulop may 

have been animated by the same desire to exact political 

revenge, there were no allegations they defrauded their 

federally funded employer in order to do so.

Defendants also raise federalism concerns, arguing the 

Government is improperly attempting “to police state and local 

officials in the conduct of their official duties.” Baroni Br. at 

36. As we have observed, Congress has a uniquely significant 

interest in safeguarding the Port Authority, an interstate agency 

created by its consent. But we also believe federalism 

arguments are especially inapposite in the context of Section 

666. We have described how Congress enacted Section 666 

specifically to bring state and local officials within the scope 

of the federal criminal theft law. And as the Supreme Court 

has observed, “Congress was within its prerogative to protect 

spending objects from the menace of local administrators.” 

Sabri, 541 U.S. at 608.

In sum, the Government presented evidence sufficient 

to prove Defendants fraudulently obtained, knowingly 

converted, or intentionally misapplied Port Authority 

employee labor in violation of Section 666(a)(1)(A).
49

2.

Finally, Defendants contend there was insufficient 

evidence to meet the $5,000 threshold because the Port 

Authority employees’ wages are exempt under 18 U.S.C. 

§ 666(c)’s safe harbor for bona fide compensation, and the 

Government quantified only $3,696 in toll workers’ wages. 

They also assert the costs the Port Authority incurred in 

redoing the legitimate Center and Lemoine traffic study cannot 

satisfy the $5,000 threshold because they were not aware of the 

study and the costs represent consequential damages, not the 

value of misapplied property.16

The District Judge rejected these arguments, concluding

“the Government introduced evidence that Defendants

 

16 We note the jury was also instructed it could consider “the 

value of the affected real property, including the lanes and toll 

booths as measured by the amount of tolls generated during the 

lane and toll booth reductions.” J.A. 5110–11. In summation, 

the Government directed the jury to evidence demonstrating 

that the sole remaining Special Access Lane collected “well in 

excess of $5,000” during the week of the realignment. J.A. 

5297. Defendants did not challenge the sufficiency of this 

evidence in their post-trial motions and do not raise the issue 

on appeal. And they concede “the lanes and tollbooths can 

qualify as ‘property’ for” Section 666. Kelly Br. at 40. This 

alone seemingly forecloses any argument the $5,000 threshold 

was not satisfied. But because our affirmance of Defendants’ 

Section 666 convictions rests on their theft of employee labor, 

and the Government presented sufficient evidence the value of 

that labor exceeds $5,000, we decline to decide the issue. 
50

diverted Port Authority personnel to do work that was not part 

of the agency’s ‘usual course of business’ when reconfiguring

the access lanes,” and that “[t]he jury could reasonably find 

that the value of compensation paid to Port Authority 

personnel, losses from a ruined traffic study, and the value of 

the lanes and toll booths were not bona fide and satisfied the 

$5,000.00 threshold.” J.A. 58. 

Without reaching the other costs presented to the jury 

(i.e., the value of the lanes and toll booths themselves, and the 

costs of redoing the Center and Lemoine traffic study), we hold 

the Government presented sufficient evidence that Defendants 

fraudulently obtained more than $5,000 worth of public 

employee labor.

As to the cost of compensating overtime toll booth 

workers, the Government introduced, and Riva testified to, 

detailed payroll records showing eleven overtime toll booth 

workers were paid $3,696.09. The Government presented this 

number to the jury on a chart and reminded them of the specific 

figure in summation.

As to the value of the time of Port Authority 

professional staff, and of Baroni and Wildstein themselves, the 

Government also presented witness testimony and detailed 

payroll records.

17

 On the first day of trial, payroll records for 

 

17 In its brief, the Government asserts it “established that the 

lane diversion required $5,524.93 in pro-rated salaries of [Port 

Authority] employees to implement, and that is before the 

value of time Baroni and Wildstein spent on their mission to 

gridlock Fort Lee and cover up the reasons for that gridlock.” 
51

the relevant Port Authority employees were admitted by 

stipulation. These records indicate an hourly rate of $43.79 for 

Hwang, $52.11 for Chung, $47.24 for Patel, $79.59 for 

Wildstein, and $153.67 for Baroni. Based on these rates and

the hours Hwang, Chung, and Patel testified they worked on 

the sham traffic study, the evidence shows their time was 

valued at $437.90 ($43.79 x 10 hours), $729.54 ($52.11 x 14 

hours), and $661.36 ($47.24 x 14 hours), respectively. 

 

Gov’t Br. at 47 (citing J.A. 650–51). In support of this figure, 

the Government cited its post-trial sentencing memorandum. 

That memorandum contains a chart quantifying, inter alia, the 

cost of labor provided by Hwang, Chung, Patel, the additional 

toll collectors, and Baroni and Wildstein. The source of these 

calculations was unclear, however, because the chart contains 

no citations to the trial record.

At oral argument, the Government explained the calculations 

were established at trial through Port Authority payroll records, 

which had been admitted into evidence by stipulation, and 

testimony from Hwang, Chung, Patel, and Wildstein about 

how many hours each had worked on the fraudulent traffic 

study. 

Following oral argument, we requested the Government to file 

a supplemental letter brief addressing, with citations to the trial 

record, the evidence it presented to the jury to establish the 

property subject to the Section 666 counts is valued at $5,000 

or more. We further ordered the Government to attach any 

relevant trial exhibits or stipulations it had not previously 

submitted. We also allowed Defendants to file a joint 

response. The Government timely filed its brief, and 

Defendants filed a joint response.
52

Cumulatively, the three Port Authority traffic engineers 

provided unnecessary labor valued at approximately 

$1,828.80. The value of the work done by Hwang, Chung, 

and Patel, taken with the $3,696.09 spent on overtime toll 

workers, satisfies the $5,000 threshold.

 

Furthermore, based on Wildstein’s testimony about the 

amount of time he and Baroni spent in furtherance of the 

scheme, the value of their time was, at a minimum, $4,294.80. 

This figure reflects approximately $1,989.75 for Wildstein’s 

time ($79.59 x 25 hours) and $2,305.05 for Baroni’s time 

($153.67 x 15 hours). 

The Government reminded the jury of this evidence in 

summation:

Based on Port Authority payroll records and 

testimony you’ve heard, about $5,000 in Port 

Authority salaries were paid for the time in 

connection for the lane reduction work 

performed by Tunnels, Bridges and Terminals, 

Miss Hwang, Mr. Chung, traffic engineering Mr. 

Patel, as well as for Mr. Baroni and Mr. 

Wildstein’s time spent to facilitate and conceal 

causing traffic problems in Fort Lee. Those 

service[s] were wasted. Those services were 

wasted for these lane reductions meant to punish 

the Mayor.

J.A. 5295–96. Accordingly, we conclude the 

Government presented to the jury evidence sufficient to 

satisfy the $5,000 threshold.
53

Defendants argue this compensation cannot count 

toward the threshold under the statute’s exemption for “bona 

fide salary, wages, fees, or other compensation.” 18 U.S.C. 

§ 666(c). According to Defendants, “all of the Port Authority 

staff responsibly performed actual work, in good faith, for 

facially legitimate Port Authority purposes.” Kelly Br. at 38. 

The Government responds this argument is “a red herring” 

because “Defendants fraudulently obtained and misapplied the 

services of [Port Authority] staff, not those employees’ 

salaries.”18 Gov’t Br. at 45. “But the best way of measuring 

 

18 The Government made this distinction at trial. In its 

summation, the Government argued:

The defendants also agreed to misuse the time 

and the services of Port Authority employees. 

Those services have value. They’re worth 

money. And that’s Port Authority money. The 

Port Authority money that was paid to those 

employees. And because the Port Authority paid 

the salaries of each of the employees who wasted 

their time in furtherance of the defendants’ 

scheme to punish the Mayor. And that includes 

the salary paid to the overtime toll booth 

collectors for the one remaining toll booth that 

was accessible to Fort Lee. That also includes 

the money paid to Baroni and Wildstein 

themselves while they spent time wasting, 

wasting their time in furtherance of this 

conspiracy. When they were suppose[d] to be 

working to advance the Port Authority’s 

interests. And it includes money paid to the 
54

the value of those services,” according to the Government, 

“was to calculate what portion of those employees’ salaries 

covered the time they spent unwittingly carrying out 

Defendants’ vendetta.” Id. We agree.

Section 666(c) has no application to the services of the 

eleven overtime toll booth workers, Hwang, Chung, or Patel. 

The Government offered evidence Defendants fraudulently 

obtained those public workers’ services and labor; their 

salaries are merely a measure of the loss incurred by the Port 

Authority when it compensated those individuals for 

unnecessary, sham work. See United States v. Valentine, 63 

F.3d 459, 465 (6th Cir. 1995) (holding “the plain language of 

[Section 666(c)] does not preclude prosecution” where there is 

“no allegation concerning [the defendant’s] own salary, nor the 

salary of others,” and “the government presented proof that 

[the defendant] misappropriated employee services”).

The charges involving the compensation paid to Baroni 

and Wildstein themselves are different, however. The 

accusation is essentially that they did not earn their salaries in 

good faith by accepting payment for time spent defrauding 

their employer, so their compensation for that time could not 

have been “bona fide.” Section 666(c) thus could apply to 

exempt compensation paid to Baroni and Wildstein. “Whether 

 

engineers who wasted time—and Port Authority 

professional staff, who wasted time collecting 

data that no one ever wanted.

J.A. 5194.
55

wages are bona fide and earned in the usual course of business 

is a question of fact for the jury to decide.” United States v. 

Williams, 507 F.3d 905, 909 (5th Cir. 2007); accord United 

States v. George, 841 F.3d 55, 62–63 (1st Cir. 2016).

In this case, the judge instructed the jury that “[p]roperty 

does not include bona fide salary, wages, fees or other 

compensation paid or expenses paid or reimbursed in the 

ordinary course of business,” and that “[c]ompensation for an 

employee’s time and services obtained through deception is 

not legitimate or bona fide.” J.A. 5110. This instruction 

allowed the jury properly to exclude Baroni and Wildstein’s 

compensation under Section 666(c) only if it found they were 

both bona fide and paid in the usual course of business. 

Because the jury in this case was provided only a 

general verdict form, we do not know how it determined the 

$5,000 threshold was satisfied. The wire fraud convictions 

suggest the jury did not find Baroni and Wildstein’s 

compensation “bona fide.” See Black’s Law Dictionary 210 

(10th ed. 2014) (defining “bona fide” as “in good faith; without 

fraud or deceit”). But even if the jury determined Baroni and 

Wildstein’s compensation was subject to the Section 666(c)’s 

safe harbor, the value of the services of the eleven toll workers

and of Hwang, Chung, and Patel—which was not subject to 

that exemption—was sufficient to satisfy the statute’s $5,000 

threshold.

In light of our holding, we need not address Defendants’ 

argument the frustrated Center and Lemoine traffic study is not 

cognizable property under Section 666.

* * *
56

Because the Government offered evidence at trial 

sufficient to prove Defendants fraudulently obtained the labor

of Port Authority employees, and that the value of that labor

exceeded $5,000, Defendants’ sufficiency challenge must fail.

IV.

Defendants also challenge the jury instructions on the 

Section 666 counts and the District Judge’s refusal to instruct 

the jury it was required to find Defendants intended to punish 

Mayor Sokolich. 

Where, as here, a party has timely objected to the trial 

court’s jury instructions, we exercise plenary review in 

determining whether the jury instructions stated the proper 

legal standard. See United States v. Shaw, 891 F.3d 441, 449–

50 (3d Cir. 2018). “We must ‘conclude beyond a reasonable 

doubt that the jury verdict would have been the same absent 

the error’” for the error to be harmless. United States v. Elonis, 

841 F.3d 589, 597–98 (3d Cir. 2016) (quoting Neder v. United 

States, 527 U.S. 1, 19 (1999)). Our inquiry “is not whether, in 

a trial that occurred without the error, a guilty verdict would 

surely have been rendered, but whether the guilty verdict 

actually rendered in this trial was surely unattributable to the 

error.” Sullivan v. Louisiana, 508 U.S. 275, 279 (1993). 

A.

Defendants raise three challenges to the jury 

instructions on the Section 666 counts. They argue we should 

vacate and remand their convictions because the District Judge 

erred in instructing the jury: (1) to consider the value of the 

Center and Lemoine study in determining whether the $5,000 
57

threshold was satisfied; (2) that the Government did not need 

to prove Defendants knew of the specific property fraudulently 

obtained, knowingly converted, or intentionally misapplied; 

and (3) that “[t]o intentionally misapply money or property” 

means to intentionally use money or property “knowing that 

the use is unauthorized or unjustifiable or wrongful,” J.A. 

5109. Because any error was harmless beyond a reasonable 

doubt, we will affirm. 

1.

Defendants contend that, even if there is evidence 

sufficient to prove Section 666 violations, we should vacate 

their convictions and remand for retrial because the District 

Judge erroneously instructed the jury to consider the value of

the Center and Lemoine traffic study. Because we can affirm 

Defendants’ convictions solely on the value of public 

employee labor, we need not reach the Center and Lemoine 

study.

We have already detailed the trial evidence establishing 

the value of the public employees’ labor in addressing 

Defendants’ sufficiency challenge. Our analysis there focused 

on whether the record, viewed in the light most favorable to the 

Government, provided a sufficient basis for a rational juror to 

convict. But our inquiry here is different. Defendants contend 

that, even if the record contained sufficient evidence that the 

value of public employee labor exceeded $5,000, we cannot be 

certain beyond a reasonable doubt the jury actually considered 

all of that time in light of its instructions. We disagree. No 

reasonable juror could have failed to credit the value of Port 

Authority employee labor Defendants used to effect their 
58

fraudulent scheme, which alone satisfies Section 

666(a)(1)(A)(i)’s $5,000 threshold.

Defendants do not assert any error in the jury 

instructions as to the value of the public employee labor, and 

we find none. The Government presented overwhelming and 

undisputed evidence—which we described in analyzing 

Defendants’ sufficiency challenge—concerning the amount of 

time Port Authority employees spent in furtherance of 

Defendants’ scheme. 

As to the cost of compensating overtime tollbooth 

workers, the Government introduced, and Riva specifically 

testified to, detailed payroll records showing eleven overtime 

tollbooth workers were paid $3,696.09. The Government 

presented this number to the jury on a chart and referenced it 

in summation. 

The Government also elicited testimony from three 

members of the Port Authority’s professional staff—Hwang, 

Chung, and Patel—about the time they spent collecting traffic 

data on the realignment, in furtherance of no legitimate Port 

Authority purpose, and testimony from Wildstein about the 

time he and Baroni spent in furtherance of the scheme. 

Detailed payroll records reveal the value of the traffic 

engineers’ time was approximately $1,828.80.

Defendants argue we cannot be confident the jury 

considered the traffic engineers’ time because it was not 

presented a full calculation of the value of their hourly rate

multiplied by the hours they claimed to have worked on the 

sham study. We disagree. The parties admitted the relevant 

payroll records by stipulation, the Government elicited 
59

testimony to establish the number of hours worked, and it

reminded the jury of this evidence in summation, estimating 

that the value of the engineers’ and Baroni and Wildstein’s 

time exceeded $5,000—which is correct. The amount was 

over $6,000.

Accordingly, the value of the work performed by 

Hwang, Chung, and Patel, taken together with the $3,696.09 

spent on overtime toll workers, satisfies the $5,000 threshold. 

The time Baroni and Wildstein spent plotting their fraud 

represents an additional $4,295.

Because the jury was instructed “[c]ompensation for an 

employee’s time and services obtained through deception is 

not legitimate or bona fide,” and the Government presented 

overwhelming evidence Defendants fraudulently obtained Port 

Authority employee services, the jury necessarily found all the 

toll worker and professional staff time satisfied the $5,000 

threshold and was not subject to Section 666(c)’s exclusion for 

bona fide compensation. As noted, even if the jury did not 

credit Baroni and Wildstein’s compensation, the value of 

employee time Defendants obtained nonetheless exceeds 

$5,000.

Defendants’ convictions on the wire fraud counts 

confirm this conclusion. The jury found Defendants defrauded 

the Port Authority and conspired to do so. The only fraudulent 

scheme before them was one to cause a traffic blockage in Fort 

Lee by conducting a sham traffic study. There is 

overwhelming evidence that the bridge lanes were altered, 

eleven toll collectors worked additional overtime hours as a 

result, and the traffic study was conducted with the help of 

several well-paid Port Authority engineers. Defendants do not 
60

argue the study was not conducted. At trial, they asserted they 

did not know it was a sham or barely participated in it—an 

argument the jury roundly rejected. Indeed, the jury was 

instructed that, if it found the Defendants believed the traffic 

study was legitimate, it was a complete defense. On appeal, 

they argue Baroni had the authority to conduct the study even 

if it was a sham. The jury could not have concluded that 

Defendants conspired to conduct a sham traffic study but then 

ignored the value of the employee labor necessary to effect that

fraudulent scheme. As we have explained, the jury was 

presented with overwhelming and undisputed evidence 

demonstrating the value of the toll workers’ and professional 

staff’s time exceeds $5,000.

2.

Next, Defendants contend the District Court erred in 

instructing the jury it did not need to know of the specific 

property obtained. Defendants raise this argument to challenge 

the inclusion of the Center and Lemoine study in the jury 

instructions. Although we agree the instruction was erroneous, 

the error was harmless.

The District Judge instructed the jury:

The Government does not have to prove that the 

Defendants knew of the specific property 

obtained by fraud, knowingly converted, or 

intentionally misapplied, or that the value of the 

property met or exceeded $5,000.

J.A. 5110. This addition to the Third Circuit’s Model Jury 

Instruction was proposed by the Government. In proposed draft 
61

jury instructions submitted to the trial court, the Government 

“propose[d] keeping [this] language” on the following basis:

As this Court recognized in denying Defendants’ 

motions to dismiss the Indictment, the $5,000 

requirement is a “jurisdictional element.” United 

States v. Baroni, Crim. No. 15-193, 2016 WL 

3388302, at *7 (D.N.J. June 13, 2016) (citing 

United States v. Briston, 192 F. App’x 84, 85 (3d 

Cir. 2006)). The Third Circuit has long held that 

a defendant’s “knowledge of . . . jurisdictional 

fact[s]” is “irrelevant.” United States v. 

Crutchley, 502 F.2d 1195, 1201 (3d Cir. 1974); 

see also United States v. Moyer, 674 F.3d 192, 

208 (3d Cir. 2012) (“[i]t is well settled that mens 

rea requirements typically do not extend to the 

jurisdictional elements of a crime”) (quotation 

omitted).

J.A. 495. At the charging conference, Defendants objected to 

this addition and requested the judge instruct the jury it had to 

be “at least reasonably foreseeable what property would be 

obtained.” J.A. 4993. The Government responded that 

“[r]easonably foreseeable goes to mens rea, which the Third 

Circuit has held clearly does not extend to the jurisdictional 

elements of statutes like 666.” J.A. 4993. The judge agreed 

and declined to instruct the jury the property at issue had to be 

reasonably foreseeable to Defendants. J.A. 4994.

Defendants argue this was error because the “Section 

666’s jurisdictional element is the requirement that the victim 

be a federal program beneficiary,” and that “[t]he $5,000 

threshold is a de minimis exception, below which Congress 
62

simply chose not to authorize prosecution.” Baroni Br. at 73;

see Fischer, 529 U.S. at 682 (Thomas, J., dissenting) 

(describing “[t]he jurisdictional provision of 18 U.S.C. § 

666(b)”). We agree Section 666(b) is the statute’s 

jurisdictional provision in the sense that this provision provides 

the jurisdictional hook “tying the proscribed conduct to the 

area of federal concern delineated by the statute,” United States 

v. Feola, 420 U.S. 671, 695 (1975), here Congress’s Spending 

Clause power, see Sabri, 541 U.S. at 605. But Section 

666(a)(1)(A)(i)’s requirement that the value of affected 

property be at least $5,000 can be described as jurisdictional in 

the sense that it is a “jurisdictional floor” below which 

Congress has determined there is insufficient federal interest in 

prosecution.

In any event, the affected property is not part of Section 

666(a)(1)(A)(i)’s $5,000 requirement. That provision requires 

only that the property “is valued at $5,000 or more.” 18 U.S.C. 

§ 666(a)(1)(A)(i). The property is the direct object of the 

conduct element, Section 666(a)(1)(A), which provides that 

one who “embezzles, steals, obtains by fraud, or otherwise 

without authority knowingly converts to the use of any person 

other than the rightful owner or intentionally misapplies,

property” violates the statute. Id. § 666(a)(1)(A).

While the jury need not have found that Defendants 

knew the value of the property, it was error for the trial judge

to instruct the jury “[t]he Government d[id] not have to prove 

that the Defendants knew of the specific property obtained by 

fraud, knowingly converted, or intentionally misapplied.” J.A. 

495. Such an instruction runs the risk of negating the statute’s

mens rea requirement and thus relieving the Government of its 

burden of proof on an essential element of the crime. We do 
63

not believe, for example, one could intend to misapply 

something one does not know exists; to instruct the jury 

otherwise would seemingly dispense with the intent 

requirement. 

But because we need not reach nor credit the Center and 

Lemoine study to affirm Defendants’ convictions, the error 

was harmless. There is overwhelming evidence Defendants 

knew of the property fraudulently obtained or intentionally 

misapplied, including the work of fourteen of Baroni’s 

subordinates at the Port Authority.

3.

Defendants next challenge the District Judge’s 

definition of intentional misapplication as ambiguous. We 

disagree. Following the Third Circuit Model Jury Instruction, 

the judge instructed the jury:

To intentionally misapply money or property 

means to intentionally use money or property of 

the Port Authority knowing that the use is 

unauthorized or unjustifiable or wrongful. 

Misapplication includes the wrongful use of the 

money or property for an unauthorized purpose, 

even if the use actually benefitted the Port 

Authority. 

J.A. 5109. Defendants argue that “unjustifiable or wrongful” 

is overbroad and ambiguous. Defendants raised this same 

argument in pretrial motions and at the charging conference. 

The Government responded these are common terms and have 

been used in numerous intentional misapplication cases going 
64

back decades. Kelly’s lawyer suggested that the judge “just 

define what unjustifiable and wrongful are,” but when asked 

for proposed definitions, had nothing to offer. J.A. 4992. The 

judge overruled Defendants’ objection because the terms are 

not “inherently vague” and were not “strong legal term[s].” 

J.A. 4992.

On appeal, Defendants argue these terms are so broad 

that the jury could have convicted if it believed the lane 

realignment was “a bad idea,” unjustifiable “as a policy 

matter,” or that Baroni should have sought Executive Director 

Foye’s approval. Kelly Br. at 35 (emphasis omitted). We 

disagree.

Other instructions in the District Judge’s thorough and 

comprehensive charge foreclose the possibility the jury 

convicted defendants for lawful but imprudent conduct, e.g., 

because the jury thought the lane reductions were “a bad idea.” 

These include the requirement that $5,000 worth of property 

be stolen or misapplied and that the misapplication be “for an 

unauthorized purpose.” The judge also told the jury that it had 

to be convinced beyond a reasonable doubt that the purpose of 

the lane reductions was not a legitimate traffic study and that 

Defendants’ good faith would be a complete defense to the 

charges. See J.A. 5141–42. Because the jury was instructed 

that Defendants could not be convicted if they believed in good 

faith that the reductions were part of a legitimate traffic study, 

a jury following its instructions could not have convicted 

Defendants based on its personal judgments about the wisdom 

and execution of the traffic study. 

Moreover, we observe that this definition, or even 

broader language, is contained in the model jury instructions in 
65

several of our sister circuits. It is included verbatim in the 

Section 666 pattern jury instructions from the Eighth Circuit. 

8th Cir. Model. Crim. Jury Instr. § 6.18.666A. The First 

Circuit’s 18 U.S.C. § 656 (theft, embezzlement, or 

misapplication by bank officer or employee) pattern 

instructions define “willful misapplication” to include “that 

[defendants] wrongfully used the bank’s funds” without further 

clarifying what “wrongfully” means. 1st Cir. Model. Crim. 

Jury Instr. § 4.18.656. The Ninth and Tenth Circuits both have 

pattern instructions for statutes containing “willful 

misapplication” that do not define those terms at all. See 9th 

Cir. Model. Crim. Jury Instr. § 8.41; 10th Cir. Model Crim. 

Jury Instr. § 2.32. Jurors are regularly trusted to understand the 

meaning of these ordinary words in criminal cases.

B.

Defendants also challenge the District Judge’s refusal to 

instruct the jury it needed to find Defendants intended to 

punish Mayor Sokolich in order to convict. They contend this 

error affects every count and constructively amended the 

indictment, “permit[ing] the jury to convict based on conduct 

that was not unlawful.” Baroni Br. at 63. We disagree.

Defendants requested the object of the conspiracy be 

defined throughout the jury charge as one “to misuse Port 

Authority property to facilitate and conceal the causing of 

traffic problems in Fort Lee as punishment of Mayor 

Sokolich.” E.g., J.A. 501–04, 506. The trial court disagreed, 

ruling “the purpose or the object of the conspiracy being to 

punish Mayor Sokolich goes to motive,” which is “not an 

element of the crime” and so “not an element that has to be 

proven.” J.A. 5009. 
66

During deliberations, the jury sent a note asking: “Can 

you be guilty of conspiracy without the act being intentionally 

punative [sic] toward Mayor Socholich [sic].” J.A. 648. The 

judge responded: “Yes. Please consider this along with all 

other instructions that have been given to you.” J.A. 648.

In their post-trial motions, Defendants argued the 

punishment of Mayor Sokolich was “an essential element of 

each of the charged offenses,” and that the failure to instruct 

the jury on this point relieved the Government of its burden of 

proof. J.A. 50. The trial judge again disagreed, explaining that 

“any punitive goal Defendants may have had goes to their 

motive for violating the charged statutes, [but] is not an 

essential element of any of the crimes charged.” J.A. 50. We 

agree.

Defendants argue the “intent to punish Sokolich [is] an 

essential element of the mens rea of the charged offenses.” 

Baroni Br. at 58. Once again, Defendants conflate motive with 

mens rea intent and conduct. As we recently explained in 

Hassan v. City of New York:

[T]here’s a difference between “intent” and 

“motive.” “[A] defendant acts intentionally 

when he desires a particular result, without 

reference to the reason for such desire. Motive, 

on the other hand, is the reason why the 

defendant desires the result.” 2 Harry Sanger 

Richards et al., American Law and Procedure § 

8, at 6 (1922). In other words, “intent” asks 

whether a person acts “intentionally or 

accidentally,” while “motive” asks, “If he did it 
67

intentionally, why did he do it?” 1 John William 

Salmond, Jurisprudence § 134, at 398 (7th 

ed.1924) (emphasis in original); see also Black's 

Law Dictionary 881 (Bryan Garner ed., 10th ed. 

2014) (“While motive is the inducement to do 

some act, intent is the mental resolution or 

determination to do it.”). This fundamental 

“distinction between motive and intent runs all 

through the law.” Johnson v. Phelan, 69 F.3d 

144, 155 (7th Cir.1995) (Posner, C.J., concurring 

in part and dissenting in part).

804 F.3d 277, 297 (3d Cir. 2015).

The District Judge properly instructed the jury, for 

example, that to find Defendants guilty of wire fraud, the 

Government was required to prove they “knowingly devised a 

scheme to defraud or to obtain money or property by materially 

false or fraudulent pretenses, representations, or promises,” 

and that they “acted with intent to defraud.” J.A. 5119. This 

describes the conduct proscribed by the statute and the required 

mens rea. The intent to punish Mayor Sokolich may explain 

Defendants’ motive—why Defendants intended to defraud the 

Port Authority in this case—but it is distinct from mens rea and 

is not a required element of any of the charged offenses. See, 

e.g., Pointer v. United States, 151 U.S. 396, 417 (1894) (“The 

absence of evidence suggesting a motive for the commission 

of the crime charged is a circumstance in favor of the accused, 

to be given such weight as the jury deems proper; but proof of 

motive is never indispensable to conviction.”); United States v. 

Sriyuth, 98 F.3d 739, 747 n.12 (3d Cir. 1996) (“[M]otive is 

always relevant in a criminal case, even if it is not an element 

of the crime.”); cf. United States v. Davis, 183 F.3d 231, 244 
68

(3d Cir. 1999) (“It is clear that the parties involved in this 

intrigue had different motives. . . . Davis contends that this 

disproves a conspiracy. We disagree. If they all agreed to 

interfere with a pending judicial proceeding, they are guilty 

of conspiracy. That is the difference between motive and 

intent.”); United States v. Harrison, 942 F.2d 751, 756 (10th 

Cir. 1991) (“The goals of all the participants need not be 

congruent for a single conspiracy to exists, so long as their 

goals are not at cross purposes.” (quoting United States v. 

Maldonado-Rivera, 922 F.2d 934, 963 (2d Cir. 1990))).

Indeed, following the Third Circuit Model Jury 

Instructions, the District Judge charged the jury on this critical 

difference between motive and intent:

Intent and motive are different concepts. Motive 

is what prompts a person to act. Intent refers 

only to the state of mind with which the 

particular act is done. Personal advancement and 

financial gain, for example, are motives for much 

of human conduct. However, these motives may 

prompt one person to intentionally do something 

perfectly acceptable, while prompting another 

person to intentionally do an act that is a crime. 

Motive is not an element of the offense with 

which a defendant is charged. Proof of bad 

motive is not required to convict. Further, proof 

of bad motive alone does not establish that the 

defendant is guilty. And proof of good motive 

alone does not establish that the defendant is not 

guilty. Evidence of the defendant’s motive may, 

however, help you to determine his or her intent.
69

J.A. 5139; 3d Cir. Model. Crim. Jury Instr. § 5.04. The judge 

specifically instructed the jury that evidence of motive may be 

relevant to establishing mens rea, thus allowing a juror who 

found evidence of motive lacking to vote for acquittal. 

Defendants were free to argue—and did argue—that they were 

not motivated by any desire to punish Mayor Sokolich. The 

jury’s guilty verdict necessarily demonstrates no juror found 

motive so lacking as to raise a reasonable doubt concerning 

Defendants’ guilt. Moreover, as we have explained, the 

comprehensive and thorough jury charge created no risk that 

Defendants were convicted on the basis of lawful conduct.

And while the grand jury included language describing 

Defendants’ motive to punish the mayor in the indictment, that 

language—which did not describe an essential element of the 

charged offense—was merely surplusage. Because the jury 

instructions did not modify the essential elements of the 

offenses as charged in the indictment, there was no 

constructive amendment. See United States v. Repak, 852 F.3d 

230, 257–58 (3d Cir. 2017) (“An indictment is constructively 

amended when, in the absence of a formal amendment, the 

evidence and jury instructions at trial modify essential terms of 

the charged offense in such a way that there is a substantial 

likelihood that the jury may have convicted the defendant for 

an offense differing from the offense the indictment returned 

by the grand jury actually charged.” (quoting United States v. 

Daraio, 445 F.3d 253, 259–60 (3d Cir. 2006))).

Accordingly, we find no error in these instructions or 

the District Judge’s response to the jury’s question.

* * *
70

Because Defendants’ sufficiency challenges to their 

wire fraud and Section 666 offenses fail, and because we find 

any error in the jury instructions was at worst harmless, we will 

affirm Defendants’ judgments of convictions as to the wire 

fraud and Section 666 offenses. We now turn to the civil rights 

counts.

V.

Finally, Defendants challenge the sufficiency of Counts 

8 and 9 of the indictment. In those counts, the grand jury 

charged Defendants with conspiring to violate, and 

substantively violating, the civil rights of Fort Lee residents. It 

alleged “[t]he object of the conspiracy was to interfere with the 

localized travel rights of the residents of Fort Lee for the 

illegitimate purpose of causing significant traffic problems in 

Fort Lee to punish Mayor Sokolich,” J.A. 124, and that 

Defendants “knowingly and willfully deprived the residents of 

Fort Lee of the rights, privileges, and immunities secured by 

the Constitution and laws of the United States, namely, the 

right to localized travel on public roadways free from 

restrictions unrelated to legitimate government objectives,” 

J.A. 127. Defendants argue the substantive due process right 

the grand jury identified—“the right to localized travel on 

public roadways free from restrictions unrelated to legitimate 

government objectives”—is not clearly established and thus 

cannot form the basis of the civil rights offenses charged in 

Counts 8 and 9. 

Defendants’ attack on the sufficiency of Counts 8 and 9 

of the indictment is a legal question over which our review is 

plenary. See Willis, 844 F.3d at 161 n.7. “[W]hether the 

alleged violation of substantive due process was clearly 
71

established . . . is a question of law over which our review is 

unrestricted.” Mammaro v. N.J. Div. of Child Protection & 

Permanency, 814 F.3d 164, 168 (3d Cir. 2016).

Section 241 makes it a crime for “two or more persons 

[to] conspire to injure, oppress, threaten, or intimidate any 

person in any State, Territory, Commonwealth, Possession, or 

District in the free exercise or enjoyment of any right or 

privilege secured to him by the Constitution or laws of the 

United States,” and Section 242 makes it a crime for a person 

“under color of any law, statute, ordinance, regulation, or 

custom, to willfully subject[] any person in any State, 

Territory, Commonwealth, Possession, or District to the 

deprivation of any rights, privileges, or immunities secured or 

protected by the Constitution or laws of the United States.” 18 

U.S.C. §§ 241–42.

“[I]n lieu of describing the specific conduct it forbids, 

each statute’s general terms incorporate constitutional law by 

reference.” United States v. Lanier, 520 U.S. 259, 265 (1997). 

The statutes’ scope is limited to “rights fairly warned of, 

having been ‘made specific’ by the time of the charged 

conduct.” Id. at 267. The Supreme Court has held that “the 

object of the ‘clearly established’ immunity standard is not 

different from that of ‘fair warning’ as it relates to law ‘made 

specific’ for the purpose of validly applying” the criminal civil 

rights statutes. Id. at 270. Accordingly, we apply the same test 

as in qualified immunity cases, asking whether the right 

allegedly deprived was clearly established. See id.

Before trial, Defendants moved to dismiss the 

indictment, arguing that there is no constitutional right to 

localized travel on public roadways and that, even if such a 
72

right did exist, it had not yet been clearly established. As the 

District Court noted when denying the motion, our Court 

recognized a Fourteenth Amendment due process right to 

intrastate travel nearly three decades ago. See Lutz v. City of 

York, 899 F.2d 255, 268–70 (3d Cir. 1990). Specifically, in 

reviewing a city ordinance that prohibited cars from driving 

three or more times through certain overcrowded streets during 

evening hours, see id. at 257, we held there is “[a] due process 

right of localized movement on the public roadways,” id. at 

269, which we alternately described as “the right to move 

freely about one’s neighborhood or town, even by 

automobile,” id. at 268. We further held no other constitutional 

provision could provide the source of the right. See id. at 262–

68 (rejecting Article IV Privileges and Immunities Clause, 

Fourteenth Amendment Privileges or Immunities Clause, 

rights of national citizenship, Commerce Clause, and 

Fourteenth Amendment Equal Protection Clause theories). We 

nonetheless upheld the ordinance because it was narrowly 

tailored to meet the significant city objectives of protecting 

public safety and reducing intense traffic congestion. Id. at 

270.

Contrary to the District Court’s holding, however, and 

according to the Supreme Court’s qualified immunity 

precedent, Lutz alone could not have put Defendants on notice 

that they were violating a constitutional right. “A Government 

official’s conduct violates clearly established law when, at the 

time of the challenged conduct, ‘the contours of a right are 

sufficiently clear’ that every ‘reasonable official would have 

understood that what he is doing violates that right.’” L.R. v. 

Sch. Dist. of Phila., 836 F.3d 235, 248 (3d Cir. 2016) (quoting 

Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). “To determine 

whether the right is clearly established, we look at the state of 
73

the law when the [conduct] occurred,” Fields v. City of Phila., 

862 F.3d 353, 361 (3d Cir. 2017), here 2013. The Supreme 

Court has suggested that a single binding case from the 

defendant’s jurisdiction is insufficient to give notice that 

certain conduct could lead to criminal punishment. See Carroll 

v. Carman, 135 S. Ct. 348, 350 (2014). Instead, “[w]e look 

first to applicable Supreme Court precedent.” L.R., 836 F.3d 

at 247–48. A relevant Supreme Court holding ends the inquiry. 

“[I]f none exists, it may be possible that a ‘robust consensus of 

cases of persuasive authority’ in the Court[s] of Appeals could 

clearly establish a right for purposes of qualified immunity.” 

Id. at 248 (quoting Mammaro, 814 F.3d at 169).

The Supreme Court has never recognized an intrastate 

travel right. Far from a “robust consensus” in the Courts of 

Appeals that the right exists, the law across the circuits is 

uncertain. And most often our sister circuits have considered 

the matter in reviewing challenges to municipal residency 

requirements, not government action prohibiting free 

movement in public spaces, undermining the notice those 

opinions might have provided to Defendants as to the criminal 

nature of their conduct.

In addition to our opinion in Lutz,

19 the First, Second, 

and Sixth Circuits have recognized a right to intrastate travel, 

though they have described it at varying levels of generality. 

See Cole v. Hous. Auth. of City of Newport, 435 F.2d 807, 809 

 

19 We earlier recognized the right in Wellford v. Battaglia, 485 

F.2d 1151, 1152 (3d Cir. 1973) (per curiam), where we struck 

down a durational residency requirement for mayoral 

candidates because it burdened potential candidates’ 

fundamental “right to travel.”
74

(1st Cir. 1970) (striking down city’s two-year durational 

residency requirement for low-income housing on equal 

protection grounds for violating the “right to travel”); King v. 

New Rochelle Mun. Hous. Auth., 442 F.2d 646, 648–49 (2d Cir. 

1971) (striking down five-year durational residency 

requirement for admission to municipality’s public housing on 

equal protection grounds for violating a “right to travel within 

a state”); Johnson v. City of Cincinnati, 310 F.3d 484, 495, 

502–05 (6th Cir. 2002) (favorably citing Lutz to hold a city 

ordinance banning persons convicted of drug crimes from 

“drug-exclusion zones” violated the due process “right to 

travel locally through public spaces and roadways”).20

On the other hand, the Fourth, Fifth, Seventh, Eighth, 

and Tenth Circuits have treated the question more skeptically, 

often hesitating to recognize a due process intrastate travel

right and sometimes explicitly rejecting theories rooted in 

other constitutional provisions. See Eldridge v. Bouchard, 645 

F. Supp. 749, 753–55 (W.D. Va. 1986) (rejecting challenge to 

regional salary differential for police officers, in part, because 

“the plaintiffs do not have a federally recognized fundamental 

right to intrastate travel” rooted in the Privileges or Immunities 

Clause of the Fourteenth Amendment, though suggesting an 

intrastate travel right may be implicated in durational residency 

cases), aff’d, 823 F.2d 546 (4th Cir. 1987); Qutb v. Strauss, 11 

F.3d 488, 492 (5th Cir. 1993) (upholding juvenile curfew 

ordinance even “assum[ing] without deciding that the right to 

move about freely [in public] is a fundamental right,” noting 

 

20 The Government cites Cole v. City of Memphis, 839 F.3d 530 

(6th Cir. 2016), as also recognizing the right, but this case postdates the conduct at issue and could not have provided fair 

notice here. See Fields, 862 F.3d at 361. 
75

“under certain circumstances, minors may be treated 

differently from adults”); Wright v. City of Jackson, 506 F.2d 

900, 903–04 (5th Cir. 1975) (upholding fire department’s 

continual residency requirement because it offended no 

fundamental right to intrastate travel); Andre v. Bd. of Trustees 

of Vill. of Maywood, 561 F.2d 48, 53 (7th Cir. 1977) (declining 

to “consider whether a right of intrastate travel should be 

acknowledged” because town’s new continual residency 

requirement for public employment was not durational); 

Townes v. City of St. Louis, 949 F. Supp. 731, 735–36 (E.D. 

Mo. 1996) (holding ordinance blocking access to one city 

intersection to reduce crime would not violate due process

intrastate travel right, assuming it exists), aff’d, 112 F.3d 514 

(8th Cir. 1997); D.L. v. Unified Sch. Dist. No. 497, 596 F.3d 

768, 776 (10th Cir. 2010) (per curiam) (rejecting substantive 

due process challenge to school district’s continual residency 

requirement because “the constitutional rights at issue apply 

only to interstate travel, and the travel that Plaintiffs claim was 

restricted was intrastate travel”).

The D.C. Circuit is internally conflicted but has not yet 

set precedent. A plurality of the Court sitting en banc

suggested a due process right to intrastate travel might exist but 

did not reach the question. See Hutchins v. D.C., 188 F.3d 531, 

538 (D.C. Cir. 1999) (en banc) (plurality opinion) 

(acknowledging “a hypothetical municipal restriction on the 

movement of its citizens, for example, a draconian curfew, 

might bring into play the concept of substantive due process,” 

but declining to find a fundamental right implicated by a 

juvenile curfew ordinance, in part because juveniles do not 

have the same rights as adults). In separate opinions, another 

plurality concluded a right to intrastate travel exists and ought 

to be subject to intermediate scrutiny. See id. at 553 n.1 
76

(Rogers, J., concurring in part and dissenting in part) (listing 

views expressed by each presiding judge on the “fundamental 

right to movement”).

Simply put, although four circuits (including our own) 

have found some form of a constitutional right to intrastate 

travel, there is hardly a “robust consensus” that the right exists, 

let alone clarity as to its contours. Although Lutz is both clear 

and binding in our jurisdiction, this area of law as a whole is 

far from settled. Based on the Supreme Court’s qualified 

immunity precedent, we hold the District Court erred in 

concluding Lutz, standing alone, provided fair warning that 

Defendants conduct was illegal, especially in view of the state 

of the law in our sister circuits. See Carroll, 135 S. Ct. at 351. 

“[W]hether or not the constitutional rule applied by the court 

below was correct, it was not ‘beyond debate.’” Id. at 352 

(quoting Stanton v. Sims, 571 U.S. 3, 10–11 (2013) (per 

curiam)).

Accordingly, we will reverse and vacate Defendants’ 

civil rights convictions and remand with instructions to dismiss 

Counts 8 and 9 of the indictment under Federal Rule of 

Criminal Procedure 12(b). See Cicco, 938 F.2d at 446–47. 

Because we reverse and vacate Defendants’ convictions, we 

need not reach their arguments concerning the jury instructions 

on the civil rights counts.

VI.

For the foregoing reasons, we will affirm Defendants’ 

judgments of convictions as to the wire fraud and Section 666 

counts (Counts 1 through 7), and we will reverse and vacate 

only as to the civil rights counts (Counts 8 and 9). Because we 
77

have reversed and vacated two counts of the indictment, we 

will vacate Defendants’ sentences on the remaining counts of 

convictions.

21

 We will remand with instructions to dismiss

 

21 The Supreme Court has explained that resentencing is 

appropriate where Defendants successfully appeal some but 

not all of the counts of conviction:

[Sentencing package] cases typically involve 

multicount indictments and a successful attack 

by a defendant on some but not all of the counts 

of conviction. The appeals court, in such 

instances, may vacate the entire sentence on all 

counts so that, on remand, the trial court can 

reconfigure the sentencing plan to ensure that it 

remains adequate to satisfy the sentencing 

factors in 18 U.S.C. § 3553(a). In remanded 

cases, the Government relates, trial courts have 

imposed a sentence on the remaining 

counts longer than the sentence originally 

imposed on those particular counts, but yielding 

an aggregate sentence no longer than the 

aggregate sentence initially imposed. Thus the 

defendant ultimately may gain nothing from his 

limited success on appeal, but he will also lose 

nothing, as he will serve no more time than the 

trial court originally ordered.

Greenlaw v. United States, 554 U.S. 237, 253–54 

(2008) (citations omitted); United States v. Hodge, 870 

F.3d 184, 188 (3d Cir. 2017) (remanding “for requisite 

resentencing” where some, but not all, counts of 

convictions were vacated).
78

only Counts 8 and 9 of the indictment and to resentence 

Defendants on the remaining counts of conviction.