19

- 361

- cr United States of America v. Smilowitz

1 

## In the 2 

# United States Court of Appeals 3 

## For the Second Circuit 4

________ 5

6 A UGUST T ERM , 20 1 9 7

8 A RGUED : F EBRUARY 10

, 20 20 9
D ECIDED : S E P T E M B E R 8

, 20 20 10

11
No. 19

- 361 12

13 U NITED S TATES OF A MERICA
, 14 Appellee

, 15

16

v. 17

18
V OLVY S MILOWITZ
, A K A Z E V S M I L O W I T Z , 19 Defendant

- Appellant

, 20

21 S HALOM L AMM
, K ENNETH N AKDIMEN
, 22 Defendants. 23

_ _______ 24

25 Appeal from the United States District Court 26 for the Southern District of New York. 27 Vincent Briccetti

, Judge

. 28

________ 29

30 Before: W ALKER
, P ARKER
, a n d C A R N E Y
, Circuit Judges

. 31

________ 32

332 No. 19

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

false voter registrations and buying voter registrations in violation of 2

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

the Travel Act by paying bribes for voter registrations and votes

, in 4

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

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

and his co

- defendants falsified voter registration records to make it 7

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

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

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

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

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

improper because buying voter registration s does not constitute 13

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

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

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

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

T herefore

, we AFFIRM the judgment. 18

________ 19

20 A UDREY S TRAUSS
, Acting United States Attorney 21 for the Southern District of New York, Attorney 22 for United Stat e s of America

, New York, NY 23 ( Kathryn Martin; Daniel B. Tehrani, New York, 24 NY ; Assistant United States Attorneys, New York, 25 NY, on the brief )

, for Plaintiff

- Appell ee

. 263 No. 19

- 361

- cr

B ARKET E P S TEIN K EARON A LDEA & L O T URCO
, LLP 1 ( Donna Aldea, Alex Klein, on the brief )

, Garden 2 City , NY

, for Defendant

- Appellant

. 3

________ 4

5 J OHN M. W ALKER
, J R

. , Circuit Judge : 6

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

false voter registrations and buying voter registrations in violation of 8

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

the Travel Act by paying bribes for voter registrations and votes

, in 10

violation of 18 U.S.C. § § 371 and 1952

. Specifically, Smilowitz bribed 11

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

and his co

- defendants fals ified voter registration records to make it 13

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

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

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

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

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

improper because buying voter registration s does not constitute 19

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

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

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

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

Therefore, we AFFIRM the judgment. 244 No. 19

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B ACKGROUND 1

This conviction stemmed from Smilowitz’s involvement in a 2

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

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

about 420 people

, Bloomingburg is managed only by a mayor and two 5

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

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

developers planned a development in the village that was expected 8

to house thousands of families from the Hasidi c Jewish community. 9

Smilowitz and his father entered into a non

- binding letter of intent to 10

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

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

potential investors, Lamm a nd Nakdimen stated that the project 13

would provide an excellent location for a n Hasidic community and 14

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

community would be able to control local government decisions. 16

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

secret and repeatedly misrepresented the scope of the development 18

while gaining the requisite real estate approvals. 19

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

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

construction

, which left it uninhabitable. After local elected officials 22

voted against measures that Lamm, Nakdimen, and Smilowitz 235 No. 19

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needed to complete the Chestnut Ridge project

, the th ree men sought 1

to replace two of the elected officers with their chosen candidates

. 2

S pecifically, they wanted to install Mark Berensten, a Chestnut Ridge 3

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

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

the Village that he could falsely register as his. 6

With the majority of Bloomingburg residents opposed to the 7

development, Lamm and Na kd imen sought to increase their 8

favorable vot ing base by encouraging individuals to move in to rental 9

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

defendants sought out members of the Hasidic community living 11

elsewhere whom they could register to vote

. Smilowitz

, acting as a 12

liaison

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

Williamsburg section of Brooklyn, New York

, and offered them cash 14

payments and rent subsidies in return for the ir agreement to move to 15

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

deadline of February 18, 2014, a month be for e the March 18 election, 17

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

Bloomingburg and most of the previously purchased rental 19

pr operties remained vacant. 20

Undeterred, Lamm, Nakdimen, Smilowitz and others working 21

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

approximately 142 new voters

. Each registrant had to submit a 236 No. 19

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

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

- defendants 2

falsified registration forms by listing registrants’ addresses a s the 3

Bloomingburg proper t ies owned by Lamm and Nakdimen and by 4

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

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

. 6

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

rental applications. The defendants also had Beckerman PR 8

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

as toiletries, to make the homes appear occupied. 10

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

residents sued in state court to invalidate the new voter registration s 12

on the basis of non

- residency

, a Sullivan County Supreme Court 13

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

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

executed search warrants on various business offices and sham 16

residences of Lamm and Nakdimen

. 17

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

transportation to Bloomingbur g for the registrants who lived 19

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

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

defendants’ scheme

, i ncumbent mayor Frank Gerardi, who opposed 22

the development, won ree lection. 237 No. 19

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On December 12, 2016, a grand jury charged Lam m, Nakdimen, 1

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

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

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

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

U.S.C. § § 371 and 1952

. 6

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

Indictm ent on three grounds

. He argued first, that 52 U.S.C. § 8

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

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

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

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

invalid because purchasing voter registration s and votes do es not 13

constitute bribery under the applicable New York statute

. The 14

D i strict C ourt for the Southern District of New York (Briccetti, J .) 15

rejected these arguments and denied the motion

. 16

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

plea agreement to Count One of the Superseding Indictment 18

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

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

imprisonment

, followed by one year of supervised release, together 21

with 200 hours of community service. 228 No. 19

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D ISCUSSION 1

On appeal, Smilowitz presses the arguments made before the 2

district court, except for the vagueness claim

. 1 We review “questions 3

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

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

I. The Federal Election Statute 6

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

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

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

candidate on the ballot

. I n connection with this argument

, it is critical 10

to note that New York’s election system is unitary

, whereby 11

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

government elections

. 13

Congress enacted § 10307 under its constitutional power to 14

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

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

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 o f 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

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

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

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

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

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

power to protect the elections on which its existence depends

. . . . it 6

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

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

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

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

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

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

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

Notwithstanding this express constitutional authority to 14

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

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

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

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 States10 No. 19

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power” to regulate their election procedures, long

- standing 1

federalism principles limit congressional infringement on state 2

elections

. 8 3

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

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

relevant part : 6

Whoever knowingly or willfully gives false information

. . . 7 for the purpose of establishing his eligibility to register or 8 vote, or conspires with another individual for the purpose 9 of encouraging his false registration to vote or illegal 10 voting, or pays or offers to pay or accepts payment either 11 for registration to vote or for voting shall be fined not more 12 than $10,000 or imprisoned not more than five years, or 13 both: Provided, however , That this provision shall be 14 applicable only to general, special, or primary elections 15 held solely or in part for the purpose of selecting or electing 16 any candidate for the office of President, Vice President, 17 presidential elector, Member of the United States Senate, 18 Member of the United States House of Representatives

. . . . 19

20 Smilowitz contends that the plain text of the “ p rovided, 21

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

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

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that include a federal candidate

, and that because no federal 1

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

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

argues that allowing the statute to reach state

- only elections would 4

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

over state elections

. 6

The govern ment responds with two arguments. First, the 7

government counters Smilowitz’s textual argument with a textual 8

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

limited to actual “ elections

, ” and because voter registrations are not 10

elections and are not tied to any particular election

, the “provided, 11

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

regulate voter registrations regardless of whether they pertain to state 13

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

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

ballot to which the registrations would immediately apply does not 16

matter because the statute reaches Smilowitz’s admitted tampering 17

with voter registration in a state

- only election

. 18

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

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

both elections and registrations

, and the text of the “provided, 21

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

which precedes the clause

. The “provided, however” clause refers to 2312 No. 19

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

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

specified federal candidates. The entire provision offers no indication 3

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

to vote” from the language it modified

. 5

T he government’s strained textual reading would permit 6

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

local elections, even though f ederal c ourts have consistently held t hat

, 8

because core principles of federalism limit federal control over state 9

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

election

. 9 We reject th e government’s argument because it cannot be 11

reconciled with the text and it offends federalism principles and 12

related caselaw. 10 13

The government’s second argument fares much better

, 14

however

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

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

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

the potential to affect future federal elections. 2

T he registration process implicated here was not confined to a 3

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

power of Congress to regulate

. New York’s unitary registration 5

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

state, or federal election

. Thus

, Smilowitz’s conduct is within the 7

statute’s purview

. Because § 10307(c) reaches voter registrations that 8

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

clause

, and because the registrations here cover future federal 10

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

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

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

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

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

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

future federal elections to corruption

. To hold otherwise would 17

arbitrarily limit voter registration challenges because

, in the context 18

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

11 See Bowman , 636 F.2d at 1008 (noting that the “legislative histo ry 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 an d Congress’ s intent to protect the federal electoral process from corruption).14 No. 19

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

the federal contest.” 12 2

Smilowitz argues that recognizing federal jurisdiction because 3

of N ew York’s unitary registration system violates principles of 4

federalism since “unitary registration prevails in practically every 5

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

the prohibition to unitary registrations raises no federalism concerns 7

because the crime affects voter registrations that permit federal 8

voting. Moreover, any lingering federalism concerns could be 9

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

separate registration proces s for purely state elections

. 11

Our reasoning aligns with that of several of our s ister c ircuits

. 13 12

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

There

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

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

(now codified at 52 U.S.C. § 10307(c))

. 15 The Seventh Circuit rejected 16

the same local election argument that Smilowitz makes here

, 17

12 Bowman , 636 F.2d at 1012.

13 See, e.g. , i d .; 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

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

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

statute did not apply

. 16 3

The Fifth Circuit in Bowman employed similar reasoning in 4

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

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

proposition that because “permanent voter registration in Illinois 7

carried with it t he privilege of voting in both federal and non

- federal 8

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

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

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

impact” upon the federal and non

- federal elections. 17 12

Likewise

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

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

elections

– present or future

– to corruption, regardless of whether 15

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 non

federal election years because the act of registering, whether or not it occurs i n 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 a nd 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

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

conduct, due to New York’s unitary registration forma t, had “ the 2

potential to affect the ‘integrity and purity’ of [a federal] election

, ” 18 3

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

II. The Travel Act 5

Smilowitz next contends that the Travel Act component of his 6

conspiracy conviction should be reversed because his conduct did not 7
satisfy the requisite predicate offense of “bribery

. ” The Travel Act 8

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

in connection with conduct related to “ unlawful activity

. ” In 10
particular, 18 U.S.C. § 1952(a) , in pertinent part, prohibits individuals 11
from travelling interstate and using the mail to “ promote, manage, 12
establish, carry on , or facilitate the promotion, management, 13
establishment or carrying on, of any unlawful activity

, ” or who 14
attempt to do the same. 19 15

Section 1952(b) defines “ u nlawful activity

, ” in relevant part, 16

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

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

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

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

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

which Smilowitz pled guilty, New York E lection L aw § 17

- 142

, 4

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

- 5

142

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

Pays, lends or contributes or promises to pay, lend or 7 contribute any money or other valuable consideration to or 8 for any voter, or to or for any other person, to induce such 9 voter or other person to vote or refrain from voting at any 10 election, or to induce any voter or other person to vote or 11 refrain from voting at such election for any particular 12 person or persons, or for or against any particular 13 proposition subm itted to voters, or to induce such voter to 14 come to the polls or remain away from the polls . . . . 15

Smilowitz argues that because § 17

- 142 does not punish bribery 16

as defined by the New York state bribery statut e s , 21 which requires 17

the payee to be a “public servant

, ” 22 his violation of § 17

- 142 cannot 18

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

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

p recedent forecloses this arg ument. 2

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

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

definition of bribery, rather than a narrow common

- law definition 5

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

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

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

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

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

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

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

influence their actions.” 25 A decade earlier, i n United States v. Nardello

, 13

the Court held that in a Travel Act prosecution

, the predicate 14

unlawful activity of extortion includes all acts within its generic 15

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

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

24 Id . at 43 (emphasis added). T he 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, 29 5 (1969).19 No. 19

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in which States classify their criminal prohibitions but whether the 1

particular State involved prohib its the extortionate activity 2

charged

. ” 27 The same reasoning a pplies here. I t is undisputed based 3

on the text of § 17

- 142 that New York prohibited Smilowitz from 4

paying voters

. His conduct thus is within the federal definition of 5

“bribery” under § 1952. 6

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

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

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

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

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

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

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

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

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

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

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

- 142 17

and the New York bribery statute does not matter

. W e therefore agree 18

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

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

suffices as a Travel Act pr edicate. 2

CONCLUSION 3

For the reasons stated above

, we AFFIRM the judgment of the 4

district court. 5