2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-8-2011

USA v. Joseph Coniglio

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-3701

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Recommended Citation

"USA v. Joseph Coniglio" (2011). 2011 Decisions. Paper 1694.

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NOT PRECEDENTIAL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 District Court

for the District of New Jersey

(D.C. Crim. No. 2-08-cr-00128-001)

District Judge: Honorable Dennis M. Cavanaugh

____________

Argued: February 16, 2011

Before: SLOVITER and HARDIMAN, 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 Extortion Count, 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, the United States filed an 

Indictment in this matter that charged Coniglio, a former New Jersey State Senator, with 

eight HSMF Counts and one Extortion Count. The HSMF Counts charged two objects: 

one sounding in bribery (“the Bribery Object”) and one sounding in concealed conflict of 
3

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 Counts 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 concealment 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 weeks, the District Court charged the 

jury. Over the objection of Coniglio, the District Court 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 Objects unanimously. After three days of deliberation, 

the jury returned general verdicts on the HSMF Counts. In doing so, the jury did not 

specify whether it found Coniglio guilty based on the Bribery Object, the Concealed 
4

Conflict Object, or some combination thereof.1

On April 17, 2009, the 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. The District Court sentenced Coniglio to thirty months concurrent imprisonment on 

each count of conviction, fined Coniglio $15,000, and entered the final judgment of 

conviction. Coniglio timely appealed. This 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 arguments 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 specific 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 unfortunately

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. Alternatively, 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 Object 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 Yates 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 United 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, 19 (1999) (“If, at the 

end of that examination, the court cannot conclude beyond a reasonable doubt that the 

jury verdict would have been the same absent the error – for example, where the 

defendant...raised evidence sufficient to support a contrary finding – it should not find 

the error harmless.”). See also United States v. Black, 625 F.3d 386, 388 (7th Cir. 2010) 

(on remand from U.S. Supreme Court after Skilling, noting that “if it is not open to 

reasonable doubt that a reasonable jury would have convicted the[ ] [defendants] of 

pecuniary fraud, the convictions on the 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 inextricably 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 throughout 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 Concealed Conflict Object alone was a 

sufficient basis for conviction. While we do not say it is probable, we do conclude that it 
7

is indeed possible that the invalid Concealed Conflict Object could have contributed to 

the verdict. Stated differently, on the record before us we cannot conclude beyond a 

reasonable doubt that a rational jury would have convicted Coniglio of HSMF absent the 

invalid Concealed Conflict theory.4 Accordingly, the plain error was not harmless and we 

must vacate the HSMF convictions.

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)). We are required 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 Cir. 2002)). “If the answer is „no,‟ then 

our analysis ends, as the reversed count cannot have prejudiced the defendant.” Id. 

(quoting Cross, 308 F.3d at 318). Accordingly, here we must decide whether the 

Extortion Count conviction was tainted by evidence admitted on the basis of HSMF 

Concealed 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 involving a large amount of sharply contested, 

circumstantial evidence.
8

trial solely on the Extortion Count. See Riley, 621 F.3d at 325 (citing United 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, if most or all of the Government‟s 

concealment evidence would have been admissible in a hypothetical trial only on the 

Extortion Count, Coniglio was not prejudiced and our analysis ends.

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 entitled, “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 in the Indictment, the District Court also instructed the jury that it 

had 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 

disobey or disregard the law.” JA 1024. Because it can be difficult to prove 

intent/willfulness from direct evidence, consciousness of guilt evidence can be of “high 

probative value to the government‟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 

States v. Gatto, 995 F.2d 449 (3d Cir. 1993)).

Here, such evidence included alleged efforts to conceal both: (1) the relationship 

between HUMC and Coniglio, and (2) particular activities that were allegedly undertaken
9

as part of the purportedly corrupt bargain. We 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 introduction of every single piece of concealment evidence 

adduced by the United States. However, we are not persuaded by Appellant‟s contention 

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. Rather, 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 guilt. 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 convictions, 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, and 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, we have considered it and we conclude 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 confusion 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.