1 15-2351(L) United States v. Vincent Tabone & Malcom A. Smith

UNITED STATES COURT OF APPEALS FOR THE SECO ND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DA TABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the Unite d States Court of Appeals fo r the Second Circuit, held at the Thurgood Marshall United States Courth ouse, 40 Foley Square, in the City of New York, on the 20 th day of October, two thousand sixteen.

PRESENT: J ON O. N EWMAN , G ERARD E. L YNCH , C HRISTOPHER F. D RONEY Circuit Judges

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---------------------------- ---------------------------- -------------- U NITED S TATES OF A MERICA , Appellee

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v. Nos. 15-2351(L) 15-2433(Con)

D ANIEL J. H ALLORAN , J OSEPH J. S AVINO , J OSEPH D ESMARET , N ORAMIE J ASMIN , Defendants,

V INCENT T ABONE , M ALCOLM A. S MITH , Defendants-Appellants

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F OR D EFENDANTS -A PPELLANTS : E RIC N ELSON , Staten Island, New York, for Vincent Tabone.

M ARC F ERNICH , New York, New York, for Malcolm A. Smith.2 F OR A PPELLEE : H AGAN S COTTEN , (Karl Metzner, on the brief ), for Preet Bharara, United States Attorney for the Sout hern District of New York.

Appeal from July 17, 2015 and July 30, 2015 judgments of the United States District Court for the Southern District of New York (Karas, J. ).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgments of the district court are AFFIRMED

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Defendants Vincent Tabone and Malcolm A. Smith app eal their convictions and sentences of 42 months’ and 84 months’ incar ceration. Their sentences were imposed following a jury verdict of guilty on: (1) conspiracy—unde r 18 U.S.C. § 371—to commit bribery, in violation of the Tr avel Act, and honest services wi re fraud; (2) honest services wire fraud and attempt to commit honest services wire fraud, in viol ation of 18 U.S.C. §§ 1343, 1346, 1349, an d 2; (3) Travel Act violations, under 18 U.S.C. §§ 1952(a)(3); (4) Hobbs Act extortion charges against Smith , under 18 U.S.C. § 1951; and (5) witness tampering charges against Ta bone, under 18 U.S.C. § 1512. These charges were in connection with allegations th at Smith bribed several New York City Republican Party officials—including Tabone—in an attempt to receive the “Wilson-Pakula Certificates” 1 necessary to seek the Repub lican nomination for Mayor of New York City. Tabone and Smith challenge their convicti ons. They claim that both the applicable New York bribery laws and the honest services fraud statute are unconstitutionally vague. They also argue that the Travel Act and hone st services fraud prosecutions violate principles of federalism. In addition, Tabone challenges the sufficiency of the ev idence supporting his honest services fraud and witness-tamper ing convictions, while Smith challenges the sufficiency of the evidence su pporting his Hobbs Act conviction. We assume the parties’ familiarity with the under lying facts and procedural history of this case.

1. New York Penal Law §§ 2 00.45 and 200.50 Vagueness

The Travel Act punishes i ndividuals for using interstate or foreign commerce to further unlawful activity. 18 U.S.C. § 1952(a ). “Unlawful activity” includes “bribery . . . in violation of the laws of the State in which committed or of the United States.” Id. § 1952(b)(2). The defendants’ Travel Act char ges were premised on use of interstate commerce to commit bribery in violation of New York Penal Law §§ 200.45 and 200.50. Defendants challenge those state la ws as unconstitutionally vague.

1 A Wilson-Pakula Certificate permits a Democrat to run fo r Mayor of New York City as a Republican if at least three of the City’s five Repub lican county committees consent. See N.Y. Elec. Law § 6-120(3).3 Section 200.45 prohibits “conf er[ring], or offer[ing] or ag ree[ing] to confer, any money or other property upon a public servan t or a party officer upon an agreement or understanding that some person will or may be appointed to a public office or designated or nominated as a candidate for public offi ce.” N.Y. Penal Law § 200.45. Section 200.50 prohibits “[a] public servant or party officer” from “solicit[ing], accept[ing], or agree[ing] to accept any money or property from another person” based up on such an agreement or understanding. N.Y. Penal Law § 200.50. The term “party offi cer” is defined as “a person who holds any position or office in a political pa rty, whether by electi on, appointment, or otherwise.” N.Y. Penal Law § 200.40.

This Court previously addressed a virtually identical vagueness challenge made by Daniel J. Halloran, who was convicted as pa rt of the same Wilson-Pakula scheme. We rejected Halloran’s challenge, ruling that “§§ 200.45 and 200.50 prohibit the conduct constituting the Wilson-Pakula Scheme under a ny plausible reading of those statutes.” United States v. Halloran , 821 F.3d 321, 337 (2d Cir. 20 16). We therefore reject the defendants’ argument.

2. Honest Services Fraud Vagueness

The wire fraud statute prohibits use of inte rstate wires by one who has “devised or intend[ed] to devise any scheme or artifice to defraud, or for obtain ing money or property by false or fraudulent pretense , representations, or promises .” 18 U.S.C. § 1343. Section 1346 defines “scheme or artifi ce to defraud” to include “a sc heme or artifice to deprive another of the intangible ri ght of honest services.” Id. § 1346. The defendants challenge the statute as unconstitutionally va gue. We reject that contention.

In Skilling v. United States , 561 U.S. 358 (2010), the Supreme Court addressed a vagueness challenge to the honest services fra ud statute. In order to “preserve the statute without transgressing constitutiona l limitations,” the Court held that “§ 1346 criminalizes only the bribe-and- kickback core” of its arguable statutory reach. Id. at 408–09. Given that definition, “[a] criminal defendant who participated in a bribery or kickback scheme . . . cannot tenably complain about prosec ution under § 1346 on vagueness grounds.” Id. at 413. The Wilson-Pakula bribery scheme clearly falls within this definition, and therefore the defendants’ vagueness challenge fails. See Halloran , 821 F.3d at 337–40 (rejecting a vagueness challenge to § 1346, as applied to this Wilson-Pakula scheme, despite defendant’s argument that § 1346 fails to specify the source of the fiduciary duty a defendant must breach). 2

2 Smith contends that his challenge is di stinct from Halloran’s because he argues that § 1346 is facially vague, rather than vague as applied. However, wher e a challenged law does not threaten First Amendment interests, “we generally evaluate a vagueness claim only as applied to the facts of the particular case.” Mannix v. Phillips , 619 F.3d 187, 197 (2d Cir. 2010). Thus, “one to whos e conduct a statute clearly applies may not successfully challenge it for vagueness.” Id. (quoting Parker v. Levy , 417 U.S. 733, 756 (1974)) (internal quotation marks and alterations4 3. Federalism

The defendants also conten d that their Travel Act a nd honest services fraud prosecutions violate “principles of federalis m.” We reject these challenges as well.

When an interpretation of a federal crim inal statute “would dramatically intrude upon traditional state criminal jurisdiction,” we avoid reading the statute to have such reach unless there is a “clear indication” that it does. Bond v. United States , 134 S. Ct. 2077, 2088 (2014) (internal quotation mark s and alterations omitted). Even assuming arguendo that applying § 1346 to the Wilson- Pakula scheme would somehow intrude upon traditional state criminal jurisdicti on, the defendants’ challenge fails. In Skilling , the Supreme Court stated that it is “plain as a pikestaff that bribes and kickbacks constitute honest-services fraud.” 561 U.S. at 412. Thus , there is a clear indication that § 1346 reaches the Wilson-Paku la bribery scheme.

Smith’s federalism challenge to his Tr avel Act prosecution also fails. Smith provides no legal support for the proposition that prosecution under the Travel Act for a state law crime violates principles of federalis m. He rests his argument on New York’s supposed “hands-off policy” towards pr osecuting Wilson-Pakula conduct under §§ 200.45 and 200.50. However, ev en if such a challenge we re appropriate, Smith has provided no concrete evidence—beyond me re speculation and supposition—that New York prosecutors have affirmatively declined to prosecute Wilson-Pakula schemes. See Halloran , 821 F.3d at 335 (“The fact that this ma y be the first time that a scheme to buy a Wilson-Pakula is charged under §§ 200.45 and 200.50 is of no moment without evidence that prosecutors affirmatively declined to pr osecute similar schemes in the past.”). We therefore reject his argument.

4. Honest Services Fraud Suffi ciency of th e Evidence

Tabone challenges his honest services fraud conviction, claiming that he did not owe a fiduciary duty to any victim of the al leged fraud. The existence of a fiduciary duty is a question of fact for the jury. Halloran , 821 F.3d at 340. In ch allenging the sufficiency of the evidence to support a conviction, “a defendant bears a heavy burden.” United States v. Chavez , 549 F.3d 119, 124 (2d Cir. 2008). “I n considering such a challenge, we must view the evidence in the light most favorable to the government, crediting every inference that could have b een drawn in the government’ s favor and deferring to the jury’s assessment of witness credibility.” Id. (citations, alterations, and quotation marks omitted).

The “[e]ssential elements of a fiduciary re lation are reliance, de facto control and dominance.” Halloran , 821 F.3d at 338 (quoting AG Capital Funding Partners, L.P. v. State St. Bank & Tr. Co. , 896 N.E.2d 61, 68 (N.Y. 2008 )) (internal quotation marks

omitted).5 omitted). In Halloran , we rejected Halloran’s challenge to the existence of a fiduciary duty because the jury consider ed evidence that county chairs exercised control over the party committees and understood that they had a duty to act in the best interests of the party. See id. at 340. Similarly, we find that ther e was sufficient evidence to support a finding that Tabone owed a fiduciary duty to the Queens County Republican Party. Inter alia , the jury heard testimony that the Queens County Republican Party had “confidence” in Tabone, that the “people in the party relie d on him and trusted hi m,” and that “[t]here was a relationship of trust” between Tabone and Chairman of the Queens County Republican Party, Philip Ragus a. Supplemental App’x at 429. Other party officials testified that they understood they had a duty to act in the best inte rests of the party. Moreover, the jury heard a re cording in which Tabone stat ed: “I’m the Chief Operating Officer of the Party. I run the Queens Coun ty Republican Party. N obody else runs the Party. I run the Party. I am the party.” Id. at 1033. This evidence was sufficient to support a jury finding that Tabone ow ed a fiduciary duty to the Queens County Republican Party.

5. Witness Tampering Suffici ency of the Evidence

18 U.S.C. § 1512(b) prohibits “knowingly . . . corruptly persuad[ing] another person, or attempt[ing] to do so, or engag[ing] in misl eading conduct towards another person, with intent . . . to influence, delay, or prevent the testimon y of any person in an official proceeding [or to] cause or induce any person to withhold testimony . . . from an official proceeding.” Section 1512(c) prohi bits “corruptly . . . influenc[ing], or imped[ing] any official proceeding, or atte mpt[ing] to do so.” We define “corrupt persuasion” as persuasion that is “motivated by an improper purpose.” United States v. Gotti , 459 F.3d 296, 343 (2d Cir. 2006) (quoting United States v. Thompson , 76 F.3d 442, 452 (2d Cir. 1996)) (internal quotation marks omitted). Tabon e challenges the sufficiency of the evidence supporting his conviction under these statutes for attempting to prevent Philip Ragusa from giving testimony in a de position that was court-ordered due to Ragusa’s failing health.

We reject Tabone’s challenge. At tria l, Nelly Ragusa—Philip Ragusa’s wife— testified that, when Tabone came to her doo r, “[h]e said Phil shouldn’t testify because [Tabone] didn’t do anything wr ong. Everything was legal wh at he did.” Supplemental App’x at 270. She testified that Tabone then went into Philip Ragu sa’s bedroom. Joseph Levy testified that, while Tabone was in Philip Ragusa’s bedroom, he began “telling [Ragusa] that he did not have to give testimony that day, that there was no court that could compel him to give any testimony.” Id. at 266. Nelly Ragusa also testified that Tabone had never been to her hous e or taken any role in Philip Ragusa’s care prior to that visit. This evidence was suffi cient to support Tabone’s c onviction under 18 U.S.C. § 1512.6 6. Hobbs Act Sufficiency of the Evidence

The Hobbs Act prohibits “in any way or degree obstruct[ing] , delay[ing], or affect[ing] commerce . . . by . . . extortion[,] or atte mpt[ing] or conspir[ing] so to do.” 18 U.S.C. § 1951(a). Of relevance here, “extortion” is defined to include “the obtaining of property from another . . . un der color of official right.” Id. § 1951(b)(2). To establish extortion under color of official right, the Government “need only show that a public official has obtained a paymen t to which he was not entitled, knowing that the payment was made in return for official acts.” Ocasio v. United States , 136 S. Ct. 1423, 1428 (2016) (internal quotation marks omitted). “[A] public official is not required to actually make a decision or take an action.” McDonnell v. United States , 136 S. Ct. 2355, 2370– 71 (2016). “[I]t is enough that th e official agree to do so.” Id. at 2371. “The agreement need not be explicit, and the pu blic official need not specify the means that he will use to perform his end of the bargain.” Id.

Smith challenges the suffici ency of the evidence of his Hobbs Act extortion conviction. He primarily argues that fa cilitating a meeting between New York State Senator David Carlucci and Mark Stern was not an “official ac t.” It is true that merely setting up a meeting—without more—does not qualify as an official act. See id. at 2371– 72. It can, however, “serve as evidence of an agreement to take an official act.” Id. at 2371. There was sufficien t evidence of Smith’s ag reement to help allo cate state funds for Raj’s (an undercover FBI Agent) and Stern’s (a cooperating witness) benefit in exchange for the Wilson-Pakula bribe payments. In discussing obtaining funding for road improvements that would benefit the Spring Valley real estate development project, Smith instructed Stern to te ll Carlucci that Smith would “work with” him and “show him where in the budget, how to get it, and all th at kind of stuff.” Supplemental App’x at 1128–29. Smith told Ra j that if Carlucci “doesn’t ge t enough,” then “we go to the agency” to get funding. Id. at 1131. Carlucci testified that Smith asked him multiple times to “take” a meeting with Stern. Later, Sm ith told Raj and Stern that he had “found another place” from which the funds could be allocated. Id. at 970. He concluded that “[w]e’ll get it done.” Id. at 971. These discussions abou t the Spring Valley funding came shortly before and after discussions about the Wilson-Pakula bribery scheme. The jury could properly conclude that this evidenced an agreement to take official action in exchange for payment of Wilson-Pakula bribes.

7. Hobbs Act Jury Instruction

Alternatively, Smith argues th at the Hobbs Act ju ry instruction wa s inadequate in light of McDonnell , because, like the instruc tion held erroneous in that case, it failed to define specifically for the jury the contours of an “official act” and did not make clear that merely setting up a meeting is not such an act. McDonnell , 136 S. Ct. at 2372. Because Smith failed to object to the charge on this ground when give n, or to request a7 charge of the sort he now argu es would have been appropriat e, we review for plain error. 3 Under the plain error standard, “an appellate c ourt may, in its discretion, correct an error not raised at trial only where the appellant dem onstrates that (1) there is an error; (2) the error is clear or obvious, rather than subjec t to reasonable dispute; (3) the error affected the appellant’s substantial rights, which in the ordinary case me ans it affected the outcome of the district court proceedings; and (4) the error seriously affects the fairness, integrity or public reputati on of judicial proceedings.” United States v. Prado , 815 F.3d 93, 100 (2d Cir. 2016) (quoting United States v. Marcus , 560 U.S. 258, 262 (2010)) (internal quotation marks omitted).

Assuming arguendo that the charge was plainly insufficient in light of McDonnell

, we nevertheless conclude that any error did not affect Smith’s substantial rights. The prosecution’s principal theory throughout th e trial was that, in exchange for Raj and Stern’s bribes to Tabone and others to se cure Smith’s Wilson-Pakula certificate, Smith would use his influence to help Raj and Stern obtain state f unding for the Spring Valley real estate project. To demons trate the existence of such an agreement, the Government relied on the meeting that Smith set up be tween Stern and Carlucci, as well as taped conversations in which Smith promised to help Carlucci find the money in the state budget. McDonnell makes clear that while merely settin g up a meeting is not in itself an “official act” for purposes of Hobbs Act extortion, doing so “could serve as evidence of an agreement to take an official act.” McDonnell , 136 S. Ct. at 2371. Thus, given the strength of the evidence supporting the Governme nt’s theory that Smith promised to help channel government funds to benefit the brib e-givers—something that Smith concedes would be an “official act”—there is no “rea sonable probability that the [asserted] error affected the outcome of the trial.” Prado , 815 F.3d at 102.

We have considered the Appellants’ rema ining arguments and find them to be without merit. Accordingly, we AFFIRM the judgments of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

3 Smith argues that the jury instruction should instead be subject to modified plain error review because his failure to preserve the issue resulted from an intervening change in law. Modified plain error review is the same as plain error review except that the burden of showing (lack of) prejudice is placed on the government rather than the defendant. United States v. Botti , 711 F.3d 299, 308 (2d Cir. 2013). We have questioned the continued viability of the modified plai n error standard, Prado , 815 F.3d at 102–03, but need not decide its fate today, because the outcome of Smith’s case is the same under either the modified or conventional plain error standard of review.