2011 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

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w . v i l l a no v a . e du/thir dc ir c uit_2011/1694NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

____________ No. 09

- 3701

____________ UNITED STATES OF AMERICA

v. JOSEPH CONIGLIO ,

Appellant

____________ On Appeal from the United States D istrict Court for the District of New Jersey (D.C. Crim. No. 2

- 08

- cr - 00128

- 001 ) District Jud ge: Honorable Dennis M. Cavanaugh

____________ Argued: February 1 6 , 2011 Before: SLOVITER and H ARDIMAN , Circuit Judges ,

and JONES , II , * District Judge

. (Filed: March 8, 2011 ) Gerald Krovatin [Argued] Krovatin Klingeman LLC Newark, NJ 07102 Attorney for Appellant

* The Honorable C. Darnell Jones, II, District Judge for the United States District Court for the Eastern District of Pennsylvania, sitting by designation.2 Paul J. Fishman George S. Leone Steven G. Sanders [Argued] Office of United States Attorney Newark, NJ 07102 Attorneys for Appellee

____________ OPINION OF THE COURT

____________ JONES , II , District Judge

. Joseph Coniglio (“Coniglio”) appeals guilty verdicts rendered by a jury against him on five counts of honest services mail fraud in violation of 18 U.S.C. §§ 1341 and 1346 (“HSMF Counts”) and one count of extortion under color of official right in violation of 18 U.S.C. § 1951(a) (“Extortion Count”)

. We will vacate the convictions and
sentences on the HSMF Counts , affirm the conviction on the E xtortion C oun t, and remand for re

- sentencing on the Extortion Count

. I. Because we write primarily for the parties, we recite only the essential facts and procedural history of this case. On February 14, 2008, t he United States filed an Indictment in this matter that charged Coniglio, a former New Jersey State Senat or, with eight HSMF C ounts and one Extortion Count. The HSMF Counts charged two objects: one sounding in bribery (“the Bribery Object”) and one sounding in concealed conflict of3

interest (“the Concealed Conflict Object”). More specifically, the Bribery Object was based on allegations that Coniglio entered into a corrupt consulting agreement with the Hackensack University Medical Center (“HUMC”) that masked an underlying, unwritten agreement to pay Coniglio in exchange for improperly undertaking official actions that inured to HUMC‟s financial benefit. The Concealed Conflict Object was based upon allegations that Coniglio improperly concealed material information regarding his relationship with HUMC. Prior to trial, Coniglio moved to dismiss the HSMF Cou nts to the extent that they were based on the Concealed Conflict Object. The District Court denied Coniglio‟s motions and , over the course of the trial, allowed the United States to : (1) introduce alleged acts of concealm ent by Coniglio and HUMC , and (2) argue the Concealed Conflict Object was an independent basis upon which the jury could find Coniglio guilty of HSMF

. Trial began on March 25, 2009. After three week s , the District Court charged the jury. Over the objection of Coniglio, the District Cour t instructed the jury that it could convict under the HSMF Counts by finding either the Bribery Object or the Concealed Conflict Object. At the same time, however, the District Court declined to charge the jury that it had to find either one of the Object s unanimously. After three days of deliberation, the jury return ed general verdict s on the HSMF Counts. In doing so, the jury did not specify whether it found Coniglio guilty based on the Bribery Object, the Concealed4

Conflict Object, or some combination thereof. 1 On April 17, 2009, t he jury convicted Coniglio on five HSMF Counts and the Extortion Count, acquitted him on two HSMF Counts, and hung on the remaining HSMF Count. The District Court denied Coniglio‟s motions for judgments of acquittal or a new
trial . T he District Court sentenced Coniglio to thirty months concurrent imprisonment on each c ount of conviction , fined Coniglio $ 15,000 , and entered the final judgment of conviction. Coniglio timely appealed . T his Court stayed his appeal pending the decision of the United States Supreme Court in Skilling v. United States , 130 S. Ct. 2896 (2010). Having the benefit of that decision and argument s of the parties , we now resolve this
matter. 2
II. On appeal, Coniglio argues that: (1) in light of Skilling , the District Court erred in instructing the jury that it could convict him under the HSMF Counts based on the Concealed Conflict Object; (2) his HSMF convictions must be vacated because the error concerning the Concealed Conflict Object was not harmless beyond a reasonable doubt;

1 The parties disagreed as to the value of a general verdict form versus a verdict form containing specifi c interrogatories concerning the HSMF Bribery Object and Concealed Conflict Object. Coniglio objected to a special verdict form advocated by the Government. The District Court elected to use a general verdict form. While Coniglio‟s stance may have unfor tunately contributed to confusion below, it did not constitute a waiver of his right to challenge the HSMF Concealed Conflict Object on appeal. Black v. United States , 130 S. Ct. 2963, 2970 (2010).

2 We have jurisdiction under 28 U.S.C. § 1291

.5

and (3) his Extortion Count conviction should be vacated due to “prejudicial spillover” from the HSMF Concealed Conflict Object error . A lternatively, Coniglio contends that his convictions should be vacated because the District Court erroneously charged the jury in several other respects. A.
In Skilling , the Supreme Court held that 18 U.S.C. § 1346 is unconstitutionally vague to the extent it criminalizes behavior beyond bribery and kickback schemes. Skilling , 130 S. Ct. at 2931 . As a result of Skilling , the Concealed Conflict Obje ct and instructions from the District Court based thereon amounted to a “clear and obvious” legal error that is “not subject to reasonable dispute

. ” United States v. Riley , 621 F.3d 312 , 323 (3d Cir. 2010) (citations omitted). 3
B. Having found that Coniglio was charged with , and the jury was instructed upon, both a valid and invalid theory of HSMF, we must determine whether the error regarding the invalid Concealed Conflict Object was harmless. Riley , 621 F.3d at 323

- 25 ; Skilling , 130 S

. Ct. at 2934 & n.46 (citing Y ates v. United States , 354 U.S. 298 (1957)). Under harmless error review, convictions that may have been based on either a legally valid theory or legally invalid theory should be affirmed only if it is clear beyond a reasonable

3 The Un ited States has acknowledged this conclusion in its briefing and argument.6

doubt that a rational jury would have found the defendant guilty on the valid theory absent the invalid theory. See Neder v. United States , 527 U.S. 1, 1 9 (1999) (“ If, at the end of that examination, the court canno t conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error

– f or example, where the defendant

... raised evidence sufficient to support a contrary finding

– i t shou ld not find the error harmless.”). S ee also U nited St ates v. Black , 625 F.3d 386, 388 (7 th Cir. 2010) ( o n remand from U.S. Supreme Court after Skilling , noting that “i f it is not open to reasonable doubt that a reasonabl e jury would have convicted the[ ] [defendants] of pecuniary fraud, the convictions on th e fraud counts will stand” ). Upon careful review of the record below , it is not possible for us to conclude beyond a reasonable doubt that a rational jury would have convicted Coniglio based solely upon the Bribery Object. At trial, the Government inextri cably intertwined evidence of bribery and concealment. The District Court itself specifically charged the jury that it might convict Coniglio on either the Bribery Object or the Concealed Conflict Object, and the District Court‟s evidentiary rulings throu ghout the trial may have been affected by the existence of the Concealed Conflict Object charges. Moreover , there is no escaping the fact that, while understandably emphasizing the Bribery Object to a greater degree, the United States did argue that the C oncealed Conflict Object alone was a sufficient basis for conviction

. While we do not say it is probable, we do conclude that it7

is indeed possible that the invalid Concealed Conflict Object could have contribu ted to the verdict . Stated differently, on t he record before us we cannot conclude beyond a reasonable doubt that a rational jury would have convicted Coniglio of HSMF absent the invalid C onceal ed Conflict theory. 4 Accordingly, the plain err or was not harmless and we
must vacate the HSMF conviction s. C. “Generally, invalidation of the conviction under one count does not lead to automatic reversal of the convictions on other counts.” United States v. Gambone , 314 F.3d 163, 180

- 81 (3d Cir. 2003) (quoting United States v. Pelullo , 14 F.3d 881, 897 (3d Cir. 1994) ). W e are require d to analyze whether the Defendant was prejudiced because “there was a spillover of evidence from the reversed count that would have been inadmissible at a trial limited to the remaining count.” Riley , 621 F.3d at 325 (quoting United States v. Cross , 308 F.3d 308, 317

- 18 (3d C ir. 2002))

. “If the answer is „no,‟ then our analysis ends, as the reversed count cannot ha ve prejudiced the defendant.” Id

. (quoting Cross , 308 F.3d at 318 )

. Accordingly, here we must decide whether th e Extortion Count conviction was tainted by evidence admitted on the basis of HSMF Co ncealed Conflict Object Counts , but which would have been excluded in a hypothetical

4 The argument of the United States that the evidence of bribery was “overwhelming” does not alone carry the day. This was a case invo lving a large amount of sharply contested, cir cumstantial evidence

.8

trial solely on the Extortion Count. See Riley , 621 F.3d at 325 (citing U nited States v. Lee , 612 F.3d 170, 180 (3d Cir. 2010); United States v. Atiyeh , 402 F.3d 354, 373

- 74 (3d Cir. 2005); Gambone , 314 F.3d at 181). Specifically, i f most or all of the G overnment‟s concealment evidence would have been admissible in a hypothetical trial on ly on the Extortion Count, Coniglio was not prejudiced and our analysis end s . To convict Coniglio on the Extortion Count, the United States was required to
prove, inter alia , that Coniglio knowingly accepted one or more payments to which he was not entitle d , “with the implied understanding that he would perform...an act in his official capacity.” United States v. Antico , 275 F.3d 245, 257 (3d Cir. 2001). Moreover, based on the charges i n the Indictment, the District C ourt also instructed the jury that it ha d to find Coniglio acted “willfully”

– i.e. , that Coniglio “knew his conduct was unlawful and intended to do something the law forbids,” and “acted with a purpose to disobe y or disregard the law.” JA 1024. Because it can be d ifficult to prove intent/ will fulness from direct evidence, consciousness of guilt evidence can be o f “high probative value to the g overnment‟s case” and admissible pursuant to Federal Rule of Evidence 404

. United States v. Kemp , 500 F.3d 257, 297

- 98 (3d Cir. 2007) (citing United
Stat es v. Gatto , 995 F.2d 449 (3d Cir. 1993))

. Here, s uch evidence include d alleged efforts to conceal both : (1) the relationship between HUMC and Coniglio , and (2) particular activities that were allegedly undertaken9

as part of the purportedly corrupt bargai n . W e acknowledge it is possible that , in the absence of HSMF charges based on the Concealed Conflict Object , the District Court might not have allowed the introd uction of every single piece of concealment evidence adduced by the United States

. However , we are not persuaded by Appellant‟s c ontention that the vast majority of the Government‟s concealment evidence was solely offered to
prove the HSMF Concealed Conflict theory , and thus would have been disallowed in a trial on only the Extortion Count . Rath er, we are satisfied that the District Court would indeed have properly admitted some very significant amount, if not all, of the Government‟s concealment evidence in a trial on only the Extortion Count

– either as evidence of intent or consciousness of gu ilt. We further conclude that the District Court satisfactorily instructed the jury as to the appropriate use of such evidence. See JA 1024

- 25. The conviction on the Extortion Count shall therefore be affirmed.
D. Because we will vacate the HSMF convict ions, we need not reach Coniglio‟s objections to the District Court‟s jury instructions that only pertain to the HSMF Counts. Coniglio does make an argument concerning the “stream of benefits” instruction versus the “any amount of payment” instruction , an d the interrelationship of those instructions with the HSMF Counts and the Extortion Count. It is arguable whether Coniglio preserved this objection below as related to the Extortion Count. See JA 957

- 59.10

Nonetheless, w e have considered it and we conclu de that : (1) the District Court appropriately demarcated its instructions on the Extortion Count from those relating to the HSMF Counts , and (2) the District Court‟s Extortion Count instructions were legally satisfactory and did not pose a risk of confusi on to the jury

. III. We will vacate the District Court Judgment with respect to Counts Two, Three, Six, Seven and Eight, we will affirm the judgment of conviction as to Count Nine, and remand to the District Court for re

- sentencing as to Count Nine.