19-361-cr

United States of America v. Smilowitz

1

2 In the

3 United States Court of Appeals

4 For the Second Circuit

5 ________

6

7 AUGUST TERM, 2019

8

9 ARGUED: FEBRUARY 10, 2020

10 DECIDED: SEPTEMBER 8, 2020

11

12 No. 19-361

13

14 UNITED STATES OF AMERICA,

15 Appellee,

16

17 v.

18

19 VOLVY SMILOWITZ, AKA ZEV SMILOWITZ,

20 Defendant-Appellant,

21

22 SHALOM LAMM, KENNETH NAKDIMEN,

23 Defendants.

24 ________

25

26 Appeal from the United States District Court

27 for the Southern District of New York.

28 Vincent Briccetti, Judge.

29 ________

30

31 Before: WALKER, PARKER, and CARNEY, Circuit Judges.

32 ________

33
2 No. 19-361-cr

1 Volvy “Zev” Smilowitz pled guilty to (1) conspiring to submit 

2 false voter registrations and buying voter registrations in violation of 

3 18 U.S.C. § 371 and 52 U.S.C. § 10307(c) and (2) conspiring to violate 

4 the Travel Act by paying bribes for voter registrations and votes, in 

5 violation of 18 U.S.C. §§ 371 and 1952. Specifically, Smilowitz bribed 

6 individuals to unlawfully vote in Bloomingburg, New York, and he 

7 and his co-defendants falsified voter registration records to make it 

8 appear as though these individuals lived in Bloomingburg for at least 

9 thirty days prior to their registration. On appeal, Smilowitz argues

10 that the federal election statute, 52 U.S.C. § 10307(c), does not apply 

11 because the offense conduct was strictly tied to a local, not federal, 

12 election. He also argues that his conviction under the Travel Act was 

13 improper because buying voter registrations does not constitute 

14 bribery. We conclude that 52 U.S.C. § 10307(c) applied to Smilowitz’s 

15 conduct because it exposed future federal elections to corruption. We 

16 also conclude that his payment to influence voter conduct fits within 

17 the generic definition of bribery and thus violated the Travel Act. 

18 Therefore, we AFFIRM the judgment. 

19 ________

20

21 AUDREY STRAUSS, Acting United States Attorney 

22 for the Southern District of New York, Attorney 

23 for United States of America, New York, NY

24 (Kathryn Martin; Daniel B. Tehrani, New York, 

25 NY; Assistant United States Attorneys, New York, 

26 NY, on the brief), for Plaintiff-Appellee.
3 No. 19-361-cr

1 BARKET EPSTEIN KEARON ALDEA & LOTURCO, LLP

2 (Donna Aldea, Alex Klein, on the brief), Garden 

3 City, NY, for Defendant-Appellant.

4 ________

5

6 JOHN M. WALKER, JR., Circuit Judge:

7 Volvy “Zev” Smilowitz pled guilty to (1) conspiring to submit 

8 false voter registrations and buying voter registrations in violation of 

9 18 U.S.C. § 371 and 52 U.S.C. § 10307(c) and (2) conspiring to violate 

10 the Travel Act by paying bribes for voter registrations and votes, in 

11 violation of 18 U.S.C. §§ 371 and 1952. Specifically, Smilowitz bribed 

12 individuals to unlawfully vote in Bloomingburg, New York, and he 

13 and his co-defendants falsified voter registration records to make it 

14 appear as though these individuals lived in Bloomingburg for at least 

15 thirty days prior to their registration. On appeal, Smilowitz argues

16 that the federal election statute, 52 U.S.C. § 10307(c), does not apply 

17 because the offense conduct was strictly tied to a local, not federal, 

18 election. He also argues that his conviction under the Travel Act was 

19 improper because buying voter registrations does not constitute 

20 bribery. We conclude that 52 U.S.C. § 10307(c) applied to Smilowitz’s 

21 conduct because it exposed future federal elections to corruption. We 

22 also conclude that his payment to influence voter conduct fits within 

23 the generic definition of bribery and thus violated the Travel Act. 

24 Therefore, we AFFIRM the judgment. 
4 No. 19-361-cr

1 BACKGROUND

2 This conviction stemmed from Smilowitz’s involvement in a 

3 criminal voting scheme to further a real estate development project in

4 the village of Bloomingburg, New York. With a small population of 

5 about 420 people, Bloomingburg is managed only by a mayor and two 

6 trustees. Smilowitz was a business associate of Shalom Lamm and 

7 Kenneth Nakdimen, two real estate developers. In 2006, these 

8 developers planned a development in the village that was expected 

9 to house thousands of families from the Hasidic Jewish community. 

10 Smilowitz and his father entered into a non-binding letter of intent to 

11 buy Chestnut Ridge, the first part of the development, for more than

12 $29 million. In a confidential “Executive Summary,” circulated to 

13 potential investors, Lamm and Nakdimen stated that the project 

14 would provide an excellent location for an Hasidic community and 

15 that, because of Bloomingburg’s small population, this religious 

16 community would be able to control local government decisions.

17 Wary of local objections to the project, Lamm and Nakdimen kept it 

18 secret and repeatedly misrepresented the scope of the development

19 while gaining the requisite real estate approvals. 

20 By late 2013, following years of construction, Bloomingburg’s

21 residents learned of the scheme. The village halted Chestnut Ridge’s 

22 construction, which left it uninhabitable. After local elected officials 

23 voted against measures that Lamm, Nakdimen, and Smilowitz 
5 No. 19-361-cr

1 needed to complete the Chestnut Ridge project, the three men sought 

2 to replace two of the elected officers with their chosen candidates.

3 Specifically, they wanted to install Mark Berensten, a Chestnut Ridge 

4 supporter, as mayor and Harold Baird as a trustee. Because Baird did 

5 not live in the village, the conspirators helped him find a residence in 

6 the Village that he could falsely register as his. 

7 With the majority of Bloomingburg residents opposed to the 

8 development, Lamm and Nakdimen sought to increase their 

9 favorable voting base by encouraging individuals to move into rental 

10 properties the defendants purchased in Bloomingburg. To that end,

11 defendants sought out members of the Hasidic community living 

12 elsewhere whom they could register to vote. Smilowitz, acting as a 

13 liaison, reached out to residents in Kiryas Joel, New York, and the 

14 Williamsburg section of Brooklyn, New York, and offered them cash 

15 payments and rent subsidies in return for their agreement to move to 

16 and register to vote in Bloomingburg. By the residency registration 

17 deadline of February 18, 2014, a month before the March 18 election,

18 however, only a few of these individuals had actually moved to 

19 Bloomingburg and most of the previously purchased rental 

20 properties remained vacant.

21 Undeterred, Lamm, Nakdimen, Smilowitz and others working 

22 at their public relations firm, Beckerman PR, fraudulently registered 

23 approximately 142 new voters. Each registrant had to submit a 
6 No. 19-361-cr

1 signed, sworn New York State voter registration form to the Sullivan 

2 County Board of Elections (BOE). Smilowitz and his co-defendants

3 falsified registration forms by listing registrants’ addresses as the

4 Bloomingburg properties owned by Lamm and Nakdimen and by 

5 stating that these individuals had been living in Bloomingburg for at 

6 least thirty days prior to registration, as required by New York law. 

7 At Smilowitz’s insistence, these ineligible voters signed backdated 

8 rental applications. The defendants also had Beckerman PR

9 employees go to the rental residences and leave personal items, such 

10 as toiletries, to make the homes appear occupied. 

11 Prior to the March 18, 2014 election, after Bloomingburg certain 

12 residents sued in state court to invalidate the new voter registrations

13 on the basis of non-residency, a Sullivan County Supreme Court 

14 justice ordered the challenged registrants to vote by affidavit ballot, 

15 attesting to their residency. On March 13, 2014, federal agents 

16 executed search warrants on various business offices and sham 

17 residences of Lamm and Nakdimen.

18 On Election Day, Lamm, Nakdimen, and Smilowitz arranged 

19 transportation to Bloomingburg for the registrants who lived 

20 elsewhere. A total of 265 votes were cast in the election. After 157 

21 votes were challenged and invalidated by the BOE in connection with 

22 defendants’ scheme, incumbent mayor Frank Gerardi, who opposed 

23 the development, won reelection. 
7 No. 19-361-cr

1 On December 12, 2016, a grand jury charged Lamm, Nakdimen, 

2 and Smilowitz with one count of conspiring to submit false voter 

3 registrations and buy voter registrations in violation of 18 U.S.C. § 371 

4 and 52 U.S.C. § 10307(c), and conspiring to violate the Travel Act by 

5 paying bribes for voter registrations and votes, in violation of 18 

6 U.S.C. §§ 371 and 1952.

7 On November 10, 2017, Smilowitz moved to dismiss the 

8 Indictment on three grounds. He argued first, that 52 U.S.C. § 

9 10307(c), the federal election statute, did not apply to him because the 

10 alleged scheme related solely to a local election; second, that the 

11 Indictment should be dismissed because it was “vague” as applied to 

12 him; and finally, that the Travel Act object of the conspiracy was 

13 invalid because purchasing voter registrations and votes does not 

14 constitute bribery under the applicable New York statute. The 

15 District Court for the Southern District of New York (Briccetti, J.)

16 rejected these arguments and denied the motion. 

17 On June 15, 2018, Smilowitz pled guilty pursuant to a written 

18 plea agreement to Count One of the Superseding Indictment

19 containing the foregoing single conspiracy count. On January 24, 

20 2019, the district court sentenced Smilowitz to three months’ 

21 imprisonment, followed by one year of supervised release, together 

22 with 200 hours of community service. 
8 No. 19-361-cr

1 DISCUSSION

2 On appeal, Smilowitz presses the arguments made before the 

district court, except for the vagueness claim.1 3 We review “questions 

of statutory interpretation de novo.” 4 2 We also “review a district court’s 

denial of a motion to dismiss an indictment de novo.”3 5

6 I. The Federal Election Statute 

7 Smilowitz first contends that his conviction under 52 U.S.C. § 

8 10307(c), which pertains to federal elections, must be vacated because 

9 his admitted conduct related only to a local election with no federal 

10 candidate on the ballot. In connection with this argument, it is critical 

11 to note that New York’s election system is unitary, whereby 

12 registration entitles an individual to vote in all local, state and federal 

13 government elections. 

14 Congress enacted § 10307 under its constitutional power to 

15 shield federal elections from fraud or corruption. That power is found 

16 in Article I, Section 4 of the Constitution which specifies that: “The 

1 The government contends that Smilowitz’s claims are waived by his 

unconditional guilty plea. Smilowitz argues that Class v. United States, 138 S. Ct. 

798 (2018), preserves his challenge to the constitutionality of his conviction. Class 

held that a guilty plea, by itself, does not bar a defendant from challenging the 

constitutionality of the statute of conviction on appeal. Id. at 803. Because we reject 

Smilowitz’s arguments on the merits, we do not address the contours of appellate 

review following a guilty plea post-Class.

2 United States v. Epskamp, 832 F.3d 154, 160 (2d Cir. 2016) (quoting Roach v. 

Morse, 440 F.3d 53, 56 (2d Cir. 2006)). 

3 United States v. Canori, 737 F.3d 181, 182 (2d Cir. 2013) (citations omitted).
9 No. 19-361-cr

1 Times, Places and Manner of holding Elections for Senators and 

2 Representatives, shall be prescribed in each State by the Legislature 

3 thereof; but the Congress may at any time by Law make or alter such 

Regulations, except as to the Places of chusing Senators.” 4 4 The 

5 Supreme Court has recognized that if Congress does not “have the 

6 power to protect the elections on which its existence depends . . . . it 

7 is left helpless before the two great natural and historical enemies of 

all republics, open violence and insidious corruption.”5 8 This 

9 authority is augmented by the Necessary and Proper Clause, which 

10 empowers Congress: “To make all Laws which shall be necessary and 

11 proper for carrying into Execution the foregoing Powers, and all other 

12 Powers vested by this Constitution in the Government of the United 

States, or in any Department or Officer thereof.”6 13

14 Notwithstanding this express constitutional authority to 

15 regulate federal elections, case law has made clear that Congress must 

16 not encroach on the states’ authority to regulate their own electoral 

processes.7 17 Because the “Constitution grants to the States a broad 

4 U.S. Const. art. I, § 4, cl. 1.

5 The Ku Klux Cases, 110 U.S. 651, 658 (1884).

6 U.S. Const. art. I, § 8, cl. 18.

7 See, e.g., Burdick v. Takushi, 504 U.S. 428, 433 (1992) (“recogniz[ing] that 

States retain the power to regulate their own elections”); Tashjian v. Republican 

Party of Connecticut, 479 U.S. 208, 217 (1986) (“The Constitution grants to the States 
10 No. 19-361-cr

1 power” to regulate their election procedures, long-standing 

2 federalism principles limit congressional infringement on state 

elections.8 3

4 Title 52, section 10307(c) of the United States Code, under which 

5 Smilowitz was convicted, regulates only federal elections. It states in 

6 relevant part:

7 Whoever knowingly or willfully gives false information . . . 

8 for the purpose of establishing his eligibility to register or 

9 vote, or conspires with another individual for the purpose 

10 of encouraging his false registration to vote or illegal 

11 voting, or pays or offers to pay or accepts payment either 

12 for registration to vote or for voting shall be fined not more 

13 than $10,000 or imprisoned not more than five years, or 

14 both: Provided, however, That this provision shall be 

15 applicable only to general, special, or primary elections 

16 held solely or in part for the purpose of selecting or electing 

17 any candidate for the office of President, Vice President, 

18 presidential elector, Member of the United States Senate, 

19 Member of the United States House of Representatives . . . .

20

21 Smilowitz contends that the plain text of the “provided, 

22 however” clause limits the reach of the statute to only those elections 

a broad power to prescribe the ‘Times, Places and Manner of holding Elections for

Senators and Representatives.’”); Boyd v. Nebraska, 143 U.S. 135, 161 (1892) (“Each 

state has the power to prescribe the qualifications of its officers, and the manner 

in which they shall be chosen . . . .”); United States v. Bowman, 636 F.2d 1003, 1008 

(5th Cir. 1981) (noting that Congress added qualifying language to the initial 

federal election statue because “it was felt that Congress had no constitutional 

authority to enact legislation to prevent corruption in all elections, both state and 

federal”).

8 Tashjian, 479 U.S. at 217.
11 No. 19-361-cr

1 that include a federal candidate, and that because no federal 

2 candidate was on the ballot in the March 18, 2014 Bloomingburg 

3 election in this case, § 10307(c) has no application here. He further 

4 argues that allowing the statute to reach state-only elections would 

5 violate the principles of federalism that limit Congress’s authority 

6 over state elections. 

7 The government responds with two arguments. First, the 

8 government counters Smilowitz’s textual argument with a textual 

9 argument of its own: the “provided, however” clause is expressly 

10 limited to actual “elections,” and because voter registrations are not 

11 elections and are not tied to any particular election, the “provided, 

12 however” limitation does not limit the government’s power to 

13 regulate voter registrations regardless of whether they pertain to state 

14 or federal elections or a combination of the two. Therefore, the 

15 government maintains, the fact that only local candidates were on the 

16 ballot to which the registrations would immediately apply does not 

17 matter because the statute reaches Smilowitz’s admitted tampering 

18 with voter registration in a state-only election. 

19 We disagree with the government’s textual argument. First, the 

20 plain text of § 10307 before the “provided, however” clause reaches 

21 both elections and registrations, and the text of the “provided, 

22 however” clause itself is most naturally read to modify all of that 

23 which precedes the clause. The “provided, however” clause refers to 
12 No. 19-361-cr

1 the prohibitory command of the entire section preceding it when it

2 states that “this provision shall be applicable” to the election of the 

3 specified federal candidates. The entire provision offers no indication 

4 that the “provided, however” clause is carving out “false registration 

5 to vote” from the language it modified.

6 The government’s strained textual reading would permit 

7 federal regulation of voter registration that applies only to state and 

8 local elections, even though federal courts have consistently held that, 

9 because core principles of federalism limit federal control over state 

10 matters, federal courts lack jurisdiction over a “pure” state or local 

election.9 11 We reject the government’s argument because it cannot be 

12 reconciled with the text and it offends federalism principles and 

related caselaw.10 13

14 The government’s second argument fares much better, 

15 however. The government contends that, because New York’s 

9 See, e.g., United States v. Slone, 411 F.3d 643, 649 (6th Cir. 2005); Bowman, 636 

F.2d at 1011 (concluding that “Congress may regulate ‘pure’ federal elections, but 

not ‘pure’ state or local elections”); see also United States v. Cole, 41 F.3d 303, 306 

(7th Cir. 1994) (holding that federal courts have jurisdiction in a mixed 

federal/state election); Schuler v. Bd. of Educ. of Cent. Islip Union Free Sch. Dist., No. 

96-CV-4702 (JG), 2000 WL 134346, at *12 n.18 (E.D.N.Y. Feb. 1, 2000) (noting that 

Bowman stands for the proposition that Congress may not regulate “pure” state or 

local elections).

10 See Burdick, 504 U.S. at 433 (interpreting Art. I, § 4, cl.1 of the Constitution

and noting that “the Court . . . has recognized that States retain the power to 

regulate their own elections”).
13 No. 19-361-cr

1 registration process is unitary, Smilowitz’s fraudulent conduct has 

2 the potential to affect future federal elections. 

3 The registration process implicated here was not confined to a 

4 “pure” state or local election of the sort that would be beyond the 

5 power of Congress to regulate. New York’s unitary registration 

6 process permanently qualifies a registrant to cast ballots in any local, 

7 state, or federal election. Thus, Smilowitz’s conduct is within the 

8 statute’s purview. Because § 10307(c) reaches voter registrations that 

9 pertain to the federal elections specified in the “provided, however” 

10 clause, and because the registrations here cover future federal 

11 elections, the statute applies to the fraudulent conduct in this case. 

12 Our ruling is in keeping with the purpose of the Voting Rights 

13 Act of 1965: to protect the integrity of the federal vote through new 

enforcement tools. 14 11 The fact that no federal candidate was on the 

15 Bloomingburg ballot on March 18, 2014 is of no moment. Because of 

16 New York’s unitary registration system, Smilowitz’s actions exposed 

17 future federal elections to corruption. To hold otherwise would 

18 arbitrarily limit voter registration challenges because, in the context 

19 of a unitary registration, it is “impossible to isolate a threat to the 

11 See Bowman, 636 F.2d at 1008 (noting that the “legislative history of the Act 

reveals a Congressional desire to protect the integrity of a person’s right to vote by 

protecting the integrity of that vote”); see also United States v. Cianciulli, 482 F. Supp. 

585, 617 (E.D. Pa. 1979) (discussing the legislative history and Congress’s intent to 

protect the federal electoral process from corruption).
14 No. 19-361-cr

1 integrity of the state electoral process from a threat to the integrity of 

the federal contest.”12 2 

3 Smilowitz argues that recognizing federal jurisdiction because

4 of New York’s unitary registration system violates principles of 

5 federalism since “unitary registration prevails in practically every 

6 state in America.” While unitary registration is prevalent, applying 

7 the prohibition to unitary registrations raises no federalism concerns 

8 because the crime affects voter registrations that permit federal 

9 voting. Moreover, any lingering federalism concerns could be

10 mitigated by any state’s modifying its local election laws to have a 

11 separate registration process for purely state elections. 

Our reasoning aligns with that of several of our sister circuits.13 12

The Seventh Circuit’s decision in United States v. Lewin is instructive.14 13

14 There, the appellants were convicted of conspiracy to pay and offer to 

15 pay persons for registering to vote in violation of 42 U.S.C. § 1973i(c)

(now codified at 52 U.S.C. § 10307(c)). 16 15 The Seventh Circuit rejected 

17 the same local election argument that Smilowitz makes here, 

12 Bowman, 636 F.2d at 1012.

13 See, e.g., id.; United States v. McCranie, 169 F.3d 723, 727 (11th Cir. 1999) (citing 

Bowman, 636 F.2d at 1012); United States v. Mason, 673 F.2d 737, 739 (4th Cir. 1982); 

United States v. Lewin, 467 F.2d 1132, 1136 (7th Cir. 1972). 

14 467 F.2d 1132. 

15 Id. at 1134.
15 No. 19-361-cr

1 reasoning that because Illinois had “permanent registration” for “all 

2 elections in Illinois,” there was “no merit in the contention” that the 

statute did not apply.16 3

4 The Fifth Circuit in Bowman employed similar reasoning in 

5 addressing 42 U.S.C. § 1973i(c)’s applicability to certain registration 

6 conduct. Specifically, the Fifth Circuit referred to Lewin for the 

7 proposition that because “permanent voter registration in Illinois 

8 carried with it the privilege of voting in both federal and non-federal 

9 elections,” and because the “act of registering, whether or not it occurs 

10 in the same year as a federal election, creates an eligibility to vote in a 

11 federal election,” the fraudulent conduct would have “an equal 

impact” upon the federal and non-federal elections. 17 12

13 Likewise, we hold here that the prohibitions in 52 U.S.C. § 

14 10307(c) apply to any voter registration practices that expose federal 

15 elections – present or future – to corruption, regardless of whether 

16 Id. at 1136. 

17 Id. The Fifth Circuit also cited United States v. Cianciulli for the proposition 

that 1973i(c) includes “false voter registrations occurring in both federal and nonfederal election years because the act of registering, whether or not it occurs in the 

same year as a federal election, creates an eligibility to vote in a federal election” 

and thus, corrupt practices “would have equal impact upon the federal and the 

non-federal election.” Bowman, 636 F.2d at 1011 (citing Cianciulli, 482 F. Supp. 585, 

617-18 (E.D. Pa. 1979)). Here, the district court relied on Cianciulli and United States 

v. Lewis, 514 F. Supp. 169 (M.D. Pa. 1981). In both those cases, the courts found 

that, because Pennsylvania had a unitary registration system, Section 1973i(c) 

outlawed all fraudulent registrations.
16 No. 19-361-cr

1 any federal candidate is on the immediate ballot. Because Smilowitz’s 

2 conduct, due to New York’s unitary registration format, had “the 

potential to affect the ‘integrity and purity’ of [a federal] election,”18 3

4 we conclude that § 10307(c) is applicable.

5 II. The Travel Act

6 Smilowitz next contends that the Travel Act component of his 

7 conspiracy conviction should be reversed because his conduct did not 

8 satisfy the requisite predicate offense of “bribery.” The Travel Act 

9 criminalizes, among other things, interstate travel and use of the mail

10 in connection with conduct related to “unlawful activity.” In 

11 particular, 18 U.S.C. § 1952(a), in pertinent part, prohibits individuals 

12 from travelling interstate and using the mail to “promote, manage, 

13 establish, carry on, or facilitate the promotion, management, 

14 establishment or carrying on, of any unlawful activity,” or who 

attempt to do the same.19 15

16 Section 1952(b) defines “unlawful activity,” in relevant part, 

17 as “extortion, bribery, or arson in violation of the laws of the State in 

18 McCranie, 169 F.3d at 727 (citing Bowman, 636 F.2d at 1012); see also Mason, 

673 F.2d at 739 (holding that Congress “clearly includes the power to regulate 

conduct which, although directed at non-federal elections, also has an impact on 

the federal races”). 

19 18 U.S.C. § 1952(a).
17 No. 19-361-cr

which committed or of the United States . . . .” 1 20 Here we are 

2 concerned with the meaning of the term “bribery” in that section.

3 The question before us is whether the New York state offense to 

4 which Smilowitz pled guilty, New York Election Law § 17-142, 

5 amounted to “bribery” within the meaning of § 1952(b). Under § 17-

6 142, a person is guilty of a felony if he:

7 Pays, lends or contributes or promises to pay, lend or 

8 contribute any money or other valuable consideration to or 

9 for any voter, or to or for any other person, to induce such 

10 voter or other person to vote or refrain from voting at any 

11 election, or to induce any voter or other person to vote or 

12 refrain from voting at such election for any particular 

13 person or persons, or for or against any particular 

14 proposition submitted to voters, or to induce such voter to 

15 come to the polls or remain away from the polls . . . .

16 Smilowitz argues that because § 17-142 does not punish bribery 

as defined by the New York state bribery statutes, 17 21 which requires 

the payee to be a “public servant,” 18 22 his violation of § 17-142 cannot

20 Id. § 1952(b).

21 The crimes of bribery under New York law—New York Penal Law §§ 200.00 

(third degree), 200.03 (second degree), 200.04 (first degree)—each require that the 

“benefit” the guilty party “confers, or offers or agrees to confer” be directed to “a 

public servant.” Under New York Election Law § 17-142, however, the 

consideration that must be paid or promised by the guilty party may be directed 

to “any . . . person.”

22 N.Y. Penal Law §§ 200.00, 200.03, 200.04.
18 No. 19-361-cr

1 serve as the Travel Act predicate “crime of bribery.” However, 

2 precedent forecloses this argument.

3 First, the Supreme Court held forty years ago in Perrin v. United 

4 States that in enacting the Travel Act, Congress intended “the generic 

5 definition of bribery, rather than a narrow common-law definition 

limited to public officials, was intended by Congress.”23 6 In describing 

7 the activities that fit within the generic definition, the Supreme Court 

8 noted that even at the time of Blackstone, “the crime of bribery had 

9 been expanded to include the corruption of any public official and the

bribery of voters and witnesses as well.” 10 24 The Court pointed to the 

11 legislative history of § 1952 to indicate that Congress “used ‘bribery’ 

12 [in the Travel Act] to include payments to private individuals to 

influence their actions.” 13 25 A decade earlier, in United States v. Nardello, 

14 the Court held that in a Travel Act prosecution, the predicate 

15 unlawful activity of extortion includes all acts within its generic 

description. 16 26 Nardello made clear that “the inquiry is not the manner 

23 444 U.S. 37, 49 (1979).

24 Id. at 43 (emphasis added). The Model Penal Code also defines “bribery” to 

include conferring “any pecuniary benefit as consideration for the recipient’s 

decision, opinion, recommendation, vote or other exercise of discretion as a public 

servant, party official, or voter. Model Penal Code § 240.1(1) (emphasis added).

25 Id. at 46. 

26 393 U.S. 286, 295 (1969).

 
19 No. 19-361-cr

1 in which States classify their criminal prohibitions but whether the 

2 particular State involved prohibits the extortionate activity 

charged.” 3 27 The same reasoning applies here. It is undisputed based 

4 on the text of § 17-142 that New York prohibited Smilowitz from 

5 paying voters. His conduct thus is within the federal definition of 

6 “bribery” under § 1952. 

7 Second Circuit case law also supports our conclusion. We have 

8 held that the generic description of bribery applies to Travel Act 

9 convictions. In United States v. Walsh, the defendants challenged their 

10 Travel Act conviction on the basis that the applicable New Jersey 

11 bribery statute failed to specifically charge an “intent to corrupt 

official action.” 12 28 We held that even though the applicable state 

13 statute was “technically a ‘gratuity’ or ‘corrupt solicitation’ statute, 

14 not a ‘bribery’ statute, [it] proscribe[d] conduct which fits within the 

15 broad generic description of bribery” and thus “was properly charged 

to the jury as a Travel Act predicate of bribery.” 16 29 Because Travel Act 

17 bribery is construed broadly, the lack of a precise fit between § 17-142 

18 and the New York bribery statute does not matter. We therefore agree 

27 Id.

 

28 700 F.2d 846, 858 (2d Cir. 1983).

29 Id. (citing United States v. Forsythe, 560 F.2d 1127, 1137-38 (3d Cir. 1977)); 

Nardello, 393 U.S. at 295-96). 
20 No. 19-361-cr

1 with the district court that Smilowitz’s admitted payment to voters 

2 suffices as a Travel Act predicate. 

3 CONCLUSION

4 For the reasons stated above, we AFFIRM the judgment of the 

5 district court.