15

‐ 996

United States v. Halloran

UNITED STATES COURT OF APPEALS

F OR THE S ECOND C IRCUIT

August Term, 2015

(Argued: January 26, 2016 Decided: April 28, 2016)

Docket No. 15

‐ 996

‐ cr

U NITED S TATES OF A MERICA

,

Appellee

,

— v.

—

D ANIEL J. H ALLORAN

,

Defendant

‐ Appellant

,

M ALCOLM A. S MITH

, V INCENT T ABONE

, J OSEPH J. S AVINO

, N ORAMIE J ASMIN

, and

J OSEPH D ESMARET

,

Defendants.

B e f o r e:

C ALABRESI

, L YNCH

, and L OHIER

, Circuit Judges

.

__________________Defendant

‐ appellant Daniel J. Halloran appeals from a judgment of the

United States District Court for the Southern District of New York (Kenneth M.

Karas, Judge ) convicting him, following a jury trial, of wire fraud, violating the

Travel Act, and conspiracy to commit both substantive offenses. The convictions

arose from two bribery schemes, in which Halloran, a member of the New York

City Council, (1) accepted bribes in exchange for promising the bribe payers

access to City funding, and (2) arranged for bribes to be paid to Republican Party

officials in exchange for a “Wilson

‐ Pakula” authorization for his co

‐ defendant to

compete for the Republican Party nomination for mayor of New York City. We

conclude that there was sufficient evidence that Halloran intended to divert city

funds to sustain his convictions relating to the first scheme, that the payment of

bribes in exchange for a Wilson

‐ Pakula certificate violates the New York bribery

statutes underlying Halloran’s Travel Act conviction, and that the honest

‐ services

fraud statute is not unconstitutionally vague as applied to that conduct. We

further hold that Halloran’s sentence was reasonable and reject his remaining

arguments.

A FFIRMED

.

J ONATHAN I. E DELSTEIN

, Edelstein & Grossman, New York, New York,

for Defendant

‐ Appellant

.

Daniel J. Halloran, pro se, Ashland, Kentucky.

J ESSICA F EINSTEIN (Karl Metzner, on the brief ), Assistant United States

Attorneys, for Preet Bharara, United States Attorney for the

Southern District of New York, New York, New York, for

Appellee.

2G ERARD E. L YNCH

, Circuit Judge :

Defendant

‐ appellant Daniel J. Halloran appeals from a judgment of

conviction entered in the United States District Court for the Southern District of

New York (Kenneth M. Karas, Judge ) on two counts of wire fraud, 18 U.S.C.

§§ 1343, 1346; two counts of violating the Travel Act, 18 U.S.C. § 1952; and one

count of conspiracy to commit both substantive offenses, 18 U.S.C. § 371.

Halloran, who was at all relevant times a member of the New York City Council,

was found guilty by a jury of participating in two bribery schemes. In the first,

Halloran accepted bribes in exchange for promising to funnel City funds to the

bribe payers (the “Discretionary Funds Scheme”). In the second, Halloran was

paid to help his co

‐ defendant, Malcolm A. Smith, bribe Republican Party officials

to obtain what is known in New York as a Wilson

‐ Pakula certificate or

authorization (a “Wilson

‐ Pakula”), which would have enabled Smith, a

Democrat, to compete for the nomination of the Republican Party in the New

York mayoral election (the “Wilson

‐ Pakula Scheme”). The district court

sentenced Halloran to 120 months’ imprisonment.

Halloran challenges his convictions on all counts. With respect to the

Discretionary Funds Scheme, Halloran claims that the evidence was legally

3insufficient to support a finding that he actually intended to divert city funds to

the bribe payers. With respect to the Wilson

‐ Pakula Scheme, Halloran argues

that brokering the payment of bribes in exchange for the issuance of a Wilson

‐

Pakula does not violate New York’s bribery laws, as required for his Travel Act

conviction, and that the honest

‐ services fraud statute is unconstitutionally vague

as applied to that conduct. Halloran also challenges the reasonableness of his

sentence and raises a number of additional issues in a supplementary pro se

brief. Finding none of those arguments meritorious, we affirm the judgment of

the district court.

BACKGROUND

Because the jury found Halloran guilty of all the charges against him, we

view the evidence in the light most favorable to the government. United States v.

Facen

, 812 F.3d 280, 283 (2d Cir. 2016).

From 2010 to 2013, Halloran was a Republican member of the New York

City Council, representing the 19th District, in Queens. The charges against him

resulted from an investigation by an undercover FBI agent, who went by the

name Raj and posed as a real estate developer from out of state who was trying

4to make inroads in New York. 1 Raj was assisted by Moses “Mark” Stern, a one

‐

time aspiring real estate developer with ties to the Orthodox Jewish community,

who was working with the FBI pursuant to a cooperation agreement. Recordings

of conversations between Halloran, Raj and Stern formed the centerpiece of the

government’s case at trial.

I. The Discretionary Funds Scheme

In the Discretionary Funds Scheme, Raj and Stern bribed Halloran to divert

$40,000 to $80,000 in “member items”

– discretionary funding that is available to

City Council members for distribution to nonprofit organizations in their districts

– to a fictitious entity purportedly controlled by Raj.

Stern first met Halloran in August 2012. At a second meeting, on

September 7, at a midtown steakhouse, Stern and Halloran discussed member

items, and Halloran said it was “[n]ot an issue” to direct those funds to Stern,

elaborating: “I give money to JCC, I give money to Chabad in Bay Terrace, I have

lots of, you know

. . .” Gov’t Ex. 104

‐ T at 4. Halloran, who was at the time

running for Congress, explained that he needed funds for his campaign, and

particularly that he hoped to raise enough money to reach the threshold at which

1 Raj testified at trial under the name Anil Modi.

5the National Republican Congressional Committee would match his campaign

contributions. Stern pledged a contribution of $15,000, half of which he gave to

Halloran then and there, in cash. Over the course of their meal, Halloran

expatiated on the role of money in New York politics: “It’s all about how much[.]

Not

. . . whether it will, it’s about how much.

. . . You can’t do anything without

the fucking money. How do you get around that?

. . . You can’t get around

that.” Id

. at 19. Later, he opined that money was “[w]hat greases the wheels,

good, bad, or indifferent.” Id

. at 24.

On September 27, at the bar of a midtown hotel, Stern introduced Halloran

to Raj, and Raj offered Halloran another $6500. Stern was to arrange to have his

“people,” Gov’t Ex. 106

‐ T at 3–4, contribute that money to Halloran in the form of

several smaller checks, in order to satisfy federal campaign finance requirements.

Halloran, in turn, guaranteed that it would be “no problem” to get discretionary

funding to Raj and Stern. App’x 534. At that meeting and over the next two

months, the three discussed how to achieve that goal. Raj and Stern made clear

that they had no interest in following the usual channels for obtaining member

items. Halloran suggested that Raj and Stern “set

. . . up” an organization to

receive the funds, and “get [him] the [tax] number, the name and address of the

6Corp.” Gov’t Ex. 106A

‐ T at 9. That plan was rejected after they determined that

starting a new charity that could not be traced to Stern or Halloran could take as

long as nine months. The three considered redirecting funding that had already

been allocated to organizations that were about to “go under,” App’x 459–60, or

arranging for someone “on paper” to collect a salary from an existing

organization without actually doing any work

– a “no

‐ show job.” App’x 460–61.

Eventually, the discussion settled on a plan to have the City buy a YMCA

building in Bayside for use as a community center by existing nonprofits, using

capital funding allocated to Halloran’s council district. A fictitious entity owned

by Raj, “2Holdings,” would collect part of the funds allocated to the project by

purportedly acting as a management company or as a consultant. Halloran

assured Raj and Stern that the nonprofits would not object to the arrangement,

explaining that “these are groups that are my groups,” and that, “[i]f I’m putting

a deal together they know that they have got to use whoever I’m gonna send

them.” Gov’t Ex. 109

‐ T at 7. He maintained that there was “nothing untoward”

about the scheme: “Nobody denies you’re allowed to make money on it while

you’re running these things.” Id

. at 11, 18.

7Raj requested a letter of commitment from Halloran. On October 23,

Halloran forwarded to Stern’s email account a letter on Halloran’s official

letterhead addressed to three different nonprofits, stating Halloran’s “intention

. . . to acquire the Bayside YMCA on 35th Avenue,” and “to allocate $1 Million in

capital money to the acquisition and improvement of the facility. I will also

allocate discretionary funding as needed up to our allotment of $80,000 in fiscal

year 2013 to get the project off the ground.” Gov’t Ex. 306. Concerned that the

letter was not specific enough, Stern requested a second letter addressed to

2Holdings and confirming that it would be involved in the project. On

November 15, Halloran forwarded another letter to Raj’s email account. This

letter was addressed to 2Holdings, requested its “assistance and consultation on

the project,” and appeared to tie a discretionary funding “allotment of

$40,000–$80,000 in fiscal year 2013–14” to 2Holding’s “work[ing] with us in

implementing the acquisition, renovation, and initial setup

‐ operation of the

facility.” Gov’t Ex. 308.

The next day, Raj met with Halloran at a pastry shop in Flushing and gave

him $10,000 in cash in a car outside the shop. (Because by that time Halloran had

lost his race for Congress and was no longer disguising the bribes as campaign

8contributions, he no longer required them to be paid in checks and in small

amounts.) In a later conversation, Halloran claimed that his agreed

‐ upon fee for

arranging for the diversion of the funds was “fifteen,” and stated that “if the

other five could come in, I’d be appreciative.” Gov’t Ex. 214

‐ T at 7. Raj agreed,

and arranged for another FBI agent to give Halloran the remaining $5000, on

January 25, 2013.

II. The Wilson

‐ Pakula Scheme

Meanwhile, Raj and Stern were cultivating a relationship with Malcolm

Smith, a Democratic state senator who was weighing a run for mayor of New

York. Because the field of Democratic mayoral candidates was crowded, Smith

was contemplating running as a Republican, without changing his party

affiliation. Under New York’s “Wilson

‐ Pakula Law,” however, a candidate

seeking the nomination of a party of which he is not a member must obtain the

consent of the appropriate party committee

– an authorization known in the New

York political world as a “Wilson

‐ Pakula”

– before filing a designating petition

allowing him to compete in the primary election. N.Y. Elec Law § 6

‐ 120(3). For

candidates to citywide office in New York City, the “authorization must be by a

majority vote of those present at a joint meeting of the executive committees of

9each of the county committees of the party within the city of New York.” Id

. In

practice, according to testimony at trial, this meant that Smith needed the consent

of at least three of the five Republican Party county chairs representing the five

boroughs of New York City.

On the morning of November 16, 2012, before his meeting with Halloran at

the pastry shop, Raj met with Stern and Smith at a hotel in White Plains. Smith

expressed his desire to obtain a Wilson

‐ Pakula and enlisted Raj’s and Stern’s help

in swaying the vote of the Chair of the Brooklyn Republican Party, Craig Eaton

–

a vote he referred to as “huge” and “a game changer.” Gov’t Ex. 110A

‐ T at 59.

Later, at the pastry shop, Raj asked Halloran whether he knew Eaton and

whether Eaton was “somebody we can work with” or someone who “can play

with us.” Gov’t Ex. 111

‐ T at 2, 3. Halloran answered in the affirmative and

further agreed that the Chair of the Bronx Republican Party, Jay Savino, “can be

in play too,” id

. at 4, explaining that “he’s a wild man

. . . the evil twin of

. . .

Craig.

. . . Craig likes to pretend like he’s in control you know

. . . . And when

we go out, to strip clubs but, uh, Savino doesn’t care, he has no pretensions, he’s

just like, out there.” Id

. at 5.

10On December 4, Raj told Halloran that the person who was seeking Eaton’s

backing was Smith. Halloran immediately offered to help. “First thing we’re

gonna do is

. . . I’m going to have a conversation with the Queens Executive Vice

Chair [Vincent Tabone] and tell him that I’m leaning that way.

. . . The second

thing I’m going to do is, um, I’m gonna

. . . pick up the phone

. . . and call Eaton

and tell him, uh, we need to sit down and just have a meeting and go over where

we’re at with everybody.

. . . I’ll peg him and Savino to come into the city with

us so we can go down to a steakhouse, have a conversation in the round.” Gov’t

Ex. 216

‐ T at 1–2. Raj asked Halloran to find out “what’s it gonna take” for the

county chairs to back Smith. Id

. at 6.

On December 19, Halloran introduced Stern and Raj to Eaton. Eaton

expressed reservations about supporting Smith, worrying about a “not for profit

that he formed” to “raise[] money for Katrina”: “Nobody knows where the

money went.” Gov’t Ex. 113

‐ T at 4. Eaton also explained that he was hoping for

the five county chairs to unite behind a single candidate. After Eaton left,

Halloran remained optimistic that Eaton could be persuaded, explaining: “His

concern is that the housekeeping fund in Brooklyn gets a donation. That’s gonna

make things work you know, twenty

‐ five, thirty

‐ five, forty

‐ five

. . . .” Id

. at 26.

11Halloran further stated that Eaton needed assurances from Smith concerning

Republican appointments: “He doesn’t need to get fed but he knows he got to

feed the Party.” Id

. “The only issue now that’s holding him up is this fucking

not

‐ for

‐ profit situation. If you clear that up, he’s yours.” Id

. at 29. Halloran then

brought up Tabone, the de facto leader of the Queens Republican Party, and

volunteered that “he’s open for business.

. . . He is, let me tell you something he’s

[a] fucking whore, there’s no nice way to say it, alright, it’s all about the bottom

line for him.

. . . [Y]ou can buy him off tomorrow.” Id

. at 31. Halloran

speculated that if Tabone and Savino backed Smith, Eaton would be more

comfortable doing so as well.

Halloran arranged for Raj and Stern to meet with Tabone and Savino in

January and February. During that period, he advised Raj and Stern on how to

discuss the scheme with the county chairs, suggesting that legal retainers be used

as “a cover” for the bribes. Gov’t Ex. 120

‐ T at 2. He reassured them that he could

“deliver” and that it was “just a matter of

. . . the number.” Id

. at 8. On February

8, Halloran met with Raj and Stern to debrief them on his discussions with the

chairs. He announced that “we will now probably get all five to give to the

Wilson

‐ Pakula.” Gov’t Ex. 121

‐ T at 1. Savino would require “twenty

‐ five in an

12envelope,” and Tabone requested “twenty

‐ five up front, twenty

‐ five when the

Wilson

‐ Pakula is delivered.” Id

. at 2. Dan Isaacs, the Manhattan chair, “is gonna

be twenty

‐ five

. . . and Malcolm’s commitment that once he’s on a ballot he’s

helping out the Queens/Manhattan GOP more than, you know, anybody else.”

Id

. at 3. Once those three votes were secured, Eaton and the Staten Island chair

would fall into line for free, although Halloran recommended “still taking care of

Eaton in other ways.” Id

. at 2. Two days later, Halloran, Raj and Stern gave

Smith the good news. At the same meeting, Raj gave Halloran $400 or $500 as an

advance on a $75,000 fee for brokering the bribes.

In the afternoon of February 14, Raj, Stern and Halloran met Savino and

Isaacs at a midtown steakhouse. After speaking at a table for a few minutes, Raj

and Savino left the restaurant to go to Raj’s car, which was parked outside.

Inside the car, Raj gave Savino $15,000 in cash, and the two discussed having

Savino send Raj a retainer agreement as a pretext for the payment. The two

returned to the restaurant, and Raj then went back to the car with Isaacs. Their

conversation did not go as planned, however: Isaacs originally agreed for Raj to

“hire” him for $15,000, Gov’t Ex. 129

‐ T at 13, with another $15,000 promised after

13the Wilson

‐ Pakula was issued, but then backed out, explaining that he would

back Smith anyway “because that’s where we were inclined to go.” Id

. at 16.

Meanwhile, back in the restaurant, Stern mused to Halloran, “we just

bought a [R]epublican candidate. If you think about it.” Gov’t Ex. 131

‐ T at 1.

Halloran agreed: “It’s scary.” Id

. Tabone then arrived, and after a lengthy

discussion with Halloran, Stern and Raj, accompanied Raj to the restaurant bar,

where Tabone patted Raj down to make sure he was not wearing a wire. Raj then

offered “twenty now, twenty later,” and Tabone responded, “I was thinking

twenty

‐ five now, twenty[

‐ ]five later,” Gov’t Ex. 138

‐ T at 12, as Halloran had

predicted. The two planned to disguise the payment as a retainer billed to

2Holdings. They then went to the car, where Raj paid Tabone $25,000. The next

day, Raj met Halloran again and gave him another $15,000 in cash towards his

$75,000 fee.

While Raj was gone with Tabone, Halloran worried to Stern that Raj had

“pushed too hard with Isaacs,” and that Isaacs had gotten “spooked.” Gov’t Ex.

140

‐ T at 1. Raj “was getting way too specific. And, you know, look we gotta be

vague about this.” Id

. The day after the events at the steakhouse, both Halloran

and Raj texted Isaacs to try to set up a meeting with him at which Raj could give

14him his “retainer.” Gov’t Ex. 322

‐ A at 3. Isaacs was evasive. Savino also left

Isaacs a phone message, and Tabone stopped by Isaacs’s office for a brief

“awkward” conversation; at trial, Isaacs described Tabone’s demeanor as “a little

bit squirrely

. . . a little fidgety.” Tr. 2026. Halloran believed that Tabone’s

intervention had “[s]traightened it all out.” Gov’t Ex. 144

‐ T at 1. His confidence

was misplaced: on the evening of February 14, after meeting the conspirators at

the steakhouse, Isaacs had had dinner with John Catsimatidis, a Republican

billionaire who was also planning to run for mayor and to whom Isaacs and

Tabone were close. Isaacs told Catsimatidis that Halloran had tried to bribe him

and asked Catsimatidis to contact law enforcement. By the next day, state and

federal authorities had been apprised of the situation. By March 20, Halloran had

found out about Isaacs’s meeting with Catsimatidis and worried that he would

be “making phone calls to Cy Vance,” the Manhattan District Attorney. Gov’t Ex.

145

‐ T at 5. On April 2, Halloran, Smith, Savino and Tabone were arrested.

III. Procedural History

Trial against Halloran, Smith and Tabone began on June 3, 2014. On June

10, on Smith’s motion, the district court ordered the government to produce

“forthwith” any recordings made from a wiretap of Stern’s cell phone “that

15might relate to this case” (the “Stern Calls”). Tr. 754, 761. After the government

produced the Stern Calls, all three defendants moved for dismissal of the

indictment, arguing that the failure to produce them earlier constituted a

violation of their rights under Brady v. Maryland

, 373 U.S. 83 (1963). The district

court denied those motions on June 16, declining to decide whether there had in

fact been a Brady violation and noting that in any event other “less severe”

sanctions than dismissal of the indictment were available. Tr. 1196. The next

day, Smith and Tabone moved for a mistrial, on the basis that the delay resulting

from the need to review the Stern Calls would create scheduling conflicts and

might cause the jury to feel “rushed or compelled” during its deliberations. Tr.

1208. The district court granted those motions. Halloran opposed a mistrial, and

instead elected to proceed with the trial as the sole defendant, following a

weeklong continuance.

On July 29, the jury found Halloran guilty on all five counts with which he

was charged, and on March 4, 2015, the district court sentenced Halloran

principally to 120 months’ imprisonment. This appeal followed.

16DISCUSSION

I. The Discretionary Funds Scheme Convictions

Halloran challenges the sufficiency of the evidence supporting his

convictions on Counts Five and Six of the indictment, which related to the

Discretionary Funds Scheme and charged Halloran with committing wire fraud

and violating the Travel Act, respectively. When a defendant challenges the

factual sufficiency of the government’s case, “the standard of review is

exceedingly deferential.” United States v. Binday

, 804 F.3d 558, 572 (2d Cir. 2015).

“We analyze the sufficiency of the evidence in the light most favorable to the

government, crediting every inference that could have been drawn in the

government’s favor, and deferring to the jury’s assessment of witness credibility

and its assessment of the weight of the evidence, and will uphold the conviction

if any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Id

. (internal quotation marks omitted).

Halloran argues that there was insufficient evidence to support a finding

that he acted with the requisite intent. The “scheme to defraud” element of wire

fraud requires “the specific intent to harm or defraud the victims of the scheme,”

17United States v. Walker

, 191 F.3d 326, 334 (2d Cir. 1999) 2

– in this case, New York

City. Similarly, the New York bribery statutes undergirding the Discretionary

Funds Scheme Travel Act conviction require “an agreement or understanding

that [the defendant’s] vote, opinion, judgment, action, decision or exercise of

discretion as a public servant will

. . . be influenced” by the bribe. N.Y. Penal

Law §§ 200.10, 200.11.

According to Halloran, he never intended to disburse his member items to

Raj and Stern, and instead planned to take their bribes without ever following

through on his promises to them. He testified at trial that his strategy was to

“yes [Raj] to death,” Tr. 2988, in order to find out “whether Mr. Stern is playing

me or whether Raj is playing him,” Tr. 3027

– “whether or not there’s anybody

behind the curtain.” Id

. There was sufficient evidence at trial for a reasonable

juror to determine otherwise, however. The jury was entitled to believe that

Halloran was telling the truth when he repeatedly assured Raj and Stern that he

would help them get discretionary funding, and was not telling the truth at trial

when he asserted that those assurances were lies. The assurances were

2 Although Walker involved mail fraud, rather than wire fraud, the intent element

is the same for both offenses. See United States v. Carlo

, 507 F.3d 799, 801 & n.1 (2d

Cir. 2007).

18corroborated by the two letters on official City Council letterhead ostensibly

committing Halloran’s office to funding the scheme. Further, the jury could have

concluded that Halloran’s continued dealings with Raj and Stern throughout late

2013 and early 2014, in the context of the Wilson

‐ Pakula Scheme, indicated that

he trusted them and belied the notion that he was simply playing along to find

out more about their intentions.

In response, Halloran emphasizes the lack of evidence that he took any

steps to arrange for the payment of city funds to Raj and Stern during the nearly

five

‐ month period between the date of his letter to 2Holdings and the date of his

arrest. 3 Halloran’s office manager, Chrissy Voskerichian, testified that

discretionary funding was awarded once a year; that “fiscal year 2013,” the year

3 Relying on our summary order in United States v. Abdallah

, 528 F. App’x 79 (2d

Cir. 2013), Halloran argues that the government was required to prove that such

steps were taken. He is mistaken. The relevant portion of Abdallah concerned a

conviction for attempted securities fraud, id

. at 82, and an element of attempt

liability is “conduct amounting to a substantial step towards [the] commission”

of the object crime. United States v. Desposito

, 704 F.3d 221, 230 (2d Cir. 2013). By

contrast, Halloran was convicted of wire fraud and of violating the Travel Act,

not of attempting those offenses. “Unlike the crime of attempt, the Travel Act

does not require that the government establish that the accused took a substantial

step in furtherance of the intended unlawful activity.” United States v. Jenkins

, 943

F.2d 167, 173 (2d Cir. 1991). The same is true of wire fraud. Cf

. United States v.

Ramirez

, 420 F.3d 134, 144–45 (2d Cir. 2005) (explaining that misuse of the mails,

and not the “scheme to defraud,” is the conduct element of mail fraud).

19referred to in Halloran’s October 23 letter, had already been “closed out” at the

time the letter was written, App’x 699; and that, at the time of his arrest, Halloran

had not yet submitted his allocation of discretionary funding for fiscal year 2014.

Ramon Martinez, the First Deputy Chief of Staff to the City Council Speaker,

testified that the deadline for Council members to submit their selections for

discretionary funding to the Council was April 16, 2013, a mere two weeks after

Halloran was arrested. But these same witnesses also explained that it was not

too late for Halloran to follow through on his promises at the time he was

arrested. Martinez testified that Halloran could have used a “transparency

resolution” to redirect funds that had been allocated to other groups for fiscal

year 2013. App’x 754–55. And Voskerichian testified that Halloran, whose

ability to allocate money was revoked after his arrest, could otherwise have made

changes to his member item allotments until the Council passed the budget, in

late June.

As further proof that he never intended to help Raj and Stern get

discretionary funding, Halloran relies on testimony by witnesses from the three

nonprofits to which the October 23 letter was addressed. These three witnesses

all claimed never to have received the letter and never to have heard of

202Holdings. But the jury was entitled to disbelieve that testimony, especially

given that it came from the leaders of organizations that the jury had heard

Halloran refer to as “my groups.” Gov’t Ex. 109

‐ T at 7. Halloran also points to

testimony by Paul Custer, a senior vice

‐ president at the YMCA of Greater New

York, that the Bayside YMCA building was sold to a limited liability company in

August 2012

– before Halloran had ever met Raj

– and that Custer’s office had

contacted Halloran’s about the sale of the property in September 2011 but that

Halloran had expressed no interest in having the City buy it. But Custer also

conceded that Halloran could have contacted the real estate brokerage firm that

handled the sale without his knowledge, and that in any event it would have

remained possible for Halloran to have the City buy the building from the

limited liability company after the YMCA sold it.

In short, Halloran has not identified any evidence that conclusively rebuts

the most natural inference to be drawn from his dealings with Raj and Stern: that

he intended to arrange for them to obtain discretionary funding. Because the

evidence adequately supported that inference, and because the jury was entitled

to disbelieve evidence to the contrary, Halloran’s sufficiency challenge fails.

21II. The Wilson

‐ Pakula Scheme Travel Act Conviction

Next, Halloran challenges his conviction on Count Three of the indictment,

which charged him with violating the Travel Act by participating in the Wilson

‐

Pakula Scheme. The Travel Act, in relevant part, prohibits “travel[ing] in

interstate or foreign commerce or us[ing] the mail or any facility in interstate or

foreign commerce, with intent to

. . . promote, manage, establish, carry on, or

facilitate the promotion, management, establishment, or carrying on, of any

unlawful activity.” 18 U.S.C. § 1952(a)(3). “Unlawful activity,” in turn, is defined

to include “bribery

. . . in violation of the laws of the State in which committed or

of the United States.” Id

. § 1952(b). In other words, a Travel Act conviction based

on bribery requires an underlying violation of a federal or state bribery statute.

The indictment charged that the statutes violated by Halloran were

§§ 200.45 and 200.50 of the New York Penal Law, entitled “Bribe giving for public

office” and “Bribe receiving for public office,” respectively. The first prohibits

“confer[ring], or offer[ing] or agree[ing] to confer, any money or other property

upon a public servant 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 office.” N.Y. Penal Law § 200.45. The

22second prohibits “[a] public servant or a party officer” from “solicit[ing],

accept[ing] or agree[ing] to accept any money or other property from another

person” upon that same agreement or understanding. N.Y. Penal Law § 200.50.

Halloran contends, however, that §§ 200.45 and 200.50 do not reach bribes paid to

secure a Wilson

‐ Pakula for the bribe payer. A Wilson

‐ Pakula, he explains, does

not amount to a “designat[ion] or nominat[ion] as a candidate for public office,”

but merely gives a person the right to compete for such a nomination. Thus, he

concludes, the bribes paid and received in connection with the Wilson

‐ Pakula

scheme were not supported by the “agreement or understanding” necessary for a

violation of § 200.45 or § 200.50.

We disagree. Both statutes speak in terms of “an agreement or

understanding that some person will or may be

. . . designated or nominated as a

candidate for public office” (emphasis added). The words “may be” serve to

extend the reach of the statutes beyond situations in which the bribe taker has the

power unilaterally to ensure the designation or nomination of the candidate. In

this context, “may” is naturally read to connote either possibility (as in: “Sea

levels may rise by several feet in the next hundred years.”) or permission (as in:

“You may leave the table only after you have finished your vegetables.”). See

23Oxford English Dictionary (3d ed. online version Mar. 2016) (defining “may,” at

sense 5, as “[e]xpressing objective possibility, opportunity, or absence of

prohibitive conditions,” and, at sense 6a, as “[e]xpressing permission or sanction:

be allowed (to do something) by authority, law, rule, morality, reason, etc.”). An

agreement or understanding that a Wilson

‐ Pakula will be issued to a person is an

agreement or understanding that that person “may be

. . . designated or

nominated as a candidate for public office,” under either of those meanings of

“may”: the Wilson

‐ Pakula not only makes it possible that the person will be

designated or nominated as the candidate of a party, but it does so by permitting

the person to compete for the nomination.

Halloran reads §§ 200.45 and 200.50 as using “may” in a third sense,

connoting purpose (as in: “Open the blinds, so that the sun may shine in.”). See

id

. (noting, at sense 9, that “may” can be “[u]sed in subordinate clauses involving

the idea of purpose or contemplated result”). Halloran’s argument, presumably,

is that a party officer could agree to help issue a Wilson

‐ Pakula to a candidate

without having the purpose to help that candidate win the party nomination

–

the officer’s real purpose, for instance, could be simply to harm the chances of

one of the other candidates. That reading seems to us, in the context of a statute

24that juxtaposes “will” with “may be,” considerably less plausible than the

“possibility” or “permission” readings. Reading “may” only as a word of

purpose effectively renders “may be” redundant. The words “an agreement or

understanding that some person will

. . . be

. . . designated or nominated as a

candidate” already convey that the “designat[ion] or nominat[ion]” is the

purpose of the bribe. A purpose

‐ connoting “may” would add nothing to what

the statutes already prohibit, and because “we must give effect to every word of a

statute wherever possible,” Leocal v. Ashcroft

, 543 U.S. 1, 12 (2004), we cannot read

“may” in the way Halloran urges.

Halloran’s attempts to find an independent meaning for “may” that does

not connote possibility or permission are unpersuasive. He asks us to consider a

hypothetical in which the appointment of a public official requires the approval

of a majority of a five

‐ member board. If a person seeking the appointment bribes

each board member, the purpose of each bribe may be to obtain the appointment,

but only the bribe that secures a favorable majority guarantees that the person

“will” be appointed. Halloran claims that “the word ‘may’ in the statute ensures

that [the bribe payer] can still be prosecuted even if he is caught before he has

paid the third bribe or if only a minority of board members accept his payments.”

25Appellant’s Br. 23. Thus, he concludes, “‘will’ includes only successful schemes

while ‘may’ takes in unsuccessful ones.” Reply Br. 5. But Halloran misreads the

statutes by ignoring the fact that the words “will” and “may” help to describe an

“agreement or understanding,” the nature of which, at the time when it is

reached, cannot depend on whether the agreed

‐ upon scheme turns out to be

successful at some point in the future. Cf

. N.Y. Penal Law § 200.15(2) (“It is no

defense to a prosecution pursuant to the provisions of this article that the public

servant did not have power or authority to perform the act or omission for which

the alleged bribe

. . . was given.”). The distinction between “will” and “may”

must thus have some significance at the earlier point in time when the scheme is

devised. In the context of Halloran’s hypothetical, the “possibility” meaning of

“may” supplies such a distinction, because each board member cannot alone

guarantee that the chosen candidate “will” be appointed, and can instead pledge

only his vote

– an official act that mathematically increases the possibility that the

candidate will be appointed.

Finding no support for Halloran in the text of the statutes, we turn next to

the case law. Because there are very few court decisions interpreting §§ 200.45

26and 200.50, 4 which were enacted in 1965 as part of a comprehensive revision of

the New York Penal Law, Halloran relies instead on cases construing what he

claims are predecessors to those statutes. In support of the continued relevance

of those cases, he cites People v. Bac Tran

, 80 N.Y.2d 170 (1992), in which the New

York Court of Appeals construed New York’s basic bribery statute, N.Y. Penal

Law § 200.00, which was also a product of the 1965 revision. The court noted that

while § 200.00 (like §§ 200.45 and 200.50) uses the words “agreement or

understanding,” predecessor statutes used the words “with intent to influence”

or similarly “kept the focus on the mental state of the bribe maker.” Bac Tran

, 80

N.Y.2d at 175–76. It then quoted the legislative history of the 1965 revision as

stating that “there was no intent [for the revision] to make ‘major substantive

changes in existing law.’” Id

. at 175. Halloran concludes from this statement that

we should read case law interpreting the pre

‐ 1965 statutes as bearing directly on

the statutes as they exist today. But that conclusion is undermined by the rest of

the very same paragraph of Bac Tran

, in which the court determined that,

4 The only such case cited by either party is Eisert v. Town of Hempstead

, 918 F.

Supp. 601 (E.D.N.Y. 1996), which the government contends supports its position,

and which Halloran attempts to distinguish. We need not determine which

party’s reading of Eisert is most compelling, because we find Halloran’s

arguments unpersuasive on other grounds.

27notwithstanding the quoted legislative history, the words “agreement or

understanding” “signaled a new and different notion,” and that the use of those

words constituted “a substantive change” that must be given effect. Id

. at 176.

Bac Tran thus in fact stands for the proposition that case law on the pre

‐ 1965

statutes remains relevant only to the extent that the 1965 revision made no

“substantive change” to the language that those cases construed.

People v. Burke

, 371 N.Y.S.2d 63 (Sup. Ct., N.Y. Cty. 1975), illustrates the

point. In that case, the defendant solicited a bribe by offering to cause one

candidate to withdraw from a primary election, leaving the other candidate for

the nomination unopposed. The court held that that conduct did not violate

former § 448(3) of the New York Election Law, because the withdrawal would

not “procure” or “cause” the nomination of the remaining candidate: it “could

not prevent the possible designation of another candidate by petition or by

‘write

‐ in’ petition [or] the filling of the vacancy by the committee on vacancies.”

Id

. at 65. But that holding was firmly grounded in the text of former § 448(3),

which prohibited (in relevant part) “[m]ak[ing], tender[ing] or offer[ing] to

procure, or caus[ing] any nomination or appointment for any public office or

place

. . . upon the payment or contribution of any valuable consideration, or

28upon an understanding or promise thereof.” N.Y. Elec. Law § 448(3) (McKinney

Supp. 1975). The court in Burke explained that the conduct reached by former

§ 448(3) was “an offer to ‘procure’ or ‘cause’ a nomination,” and that while

obtaining the withdrawal of a candidate “may well have affected the outcome of

the contest,” it was “not what the statute prohibits.” Burke

, 371 N.Y.S.2d at 66. A

similar conclusion does not hold for §§ 200.45 and 200.50, in which, as explained,

the words “may be” show that the statutes reach bribery schemes in which the

bribe taker does not alone have the power to “procure” or “cause” a nomination. 5

Halloran also relies on People v. Cunningham

, 390 N.Y.S.2d 547 (Sup. Ct.,

Bronx Cty. 1976), another case under former § 448(3), in which the defendant

5 Halloran’s reliance on Burke is misplaced for the additional reason that former

§ 448(3) remained in effect in 1975 and was thus not one of the statutes affected

by the 1965 revision of the Penal Law. It is true that in People v. Cunningham

, 390

N.Y.S.2d 547 (Sup. Ct., Bronx Cty. 1976), the court noted that former § 448(3)

covered “the same area of activity” as § 200.45 and expressed doubts that the

legislature would have intended “that significantly different consequences might

follow from the application of the two sections.” Id

. at 554. But Cunningham ’s

doubts carry less weight in light of the fact that former § 448(3) has survived in

substantially unaltered form to this day, and was recently moved to the very

article of the Penal Law where §§ 200.45 and 200.50 are found. See 2014 N.Y.

Laws 110 (repealing former § 448

– by then renumbered § 17

‐ 158, see 1976 N.Y.

Laws 1, 194

– and replacing it with a new § 200.56 of the Penal Law). The

legislature’s decision to retain former § 448 and to codify it alongside §§ 200.45

and 200.50 suggests instead that the statutes all differ at least somewhat in the

conduct they prohibit.

29agreed to support his co

‐ defendant for the Democratic nomination for Judge of

the Civil Court, in return for the co

‐ defendant’s promise to resign his position as

member of the City Council at a politically convenient time for the Democrats.

Id

. at 553. The question was whether the promised resignation constituted

“payment or contribution of any valuable consideration” under the statute. Id

. at

554. The court held that it did not, because the statute contemplated only “a

material benefit.” Id

. In so concluding, the court noted “the striking historical

fact that in the nearly 100 years that have elapsed since [former § 448(3)] was

enacted there appears to have been not a single instance in which anyone was

ever indicted in connection with such a resignation.” Id

. at 555. That fact was all

the more noteworthy given that “such resignations ha[d]

. . . occurred on

innumerable occasions involving a broad range of public officials of both political

parties, both judicial and non

‐ judicial, often accompanied by adverse public

comment.” Id

. “[S]urely the settled judgment of prosecutors over so long a

period of time,” the court stated, “is entitled to some weight.” Id

. Halloran

similarly urges us to take note of the apparent absence of prosecutions under

§§ 200.45 and 200.50 arising out of schemes to buy Wilson

‐ Pakulas, and to

conclude that those schemes are not prohibited. But unlike the court in

30Cunningham

, we have no basis for believing that this absence of prosecutions is

the result of the “settled judgment of prosecutors,” rather than the rarity of such

schemes or their relative undetectability. The fact that this may 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 prosecute

similar schemes in the past.

Further, we note that Cunningham in fact undermines Halloran’s position

in a different respect. The defendant in that case claimed, in an argument that

parallels Halloran’s, that he could not alone “cause” the nomination of his co

‐

defendant within the meaning of former § 448(3), given that the nominee would

ultimately be chosen in a primary election. Id

. at 554. The court in Cunningham

,

taking what was arguably a stance contrary to Burke

, disagreed, explaining that

“to accept the interpretation urged by the defendants would leave so wide a gap

in the intended statutory protection against corrupt practices in nominations for

public office that it could be adopted only if there were no reasonable

alternative.” Id

. Thus, insofar as the case law on former § 448(3) is at all relevant

for our purposes, taken as a whole it provides Halloran with minimal support.

31Halloran invites us to dive even deeper into the history of New York’s

bribery and public corruption laws, by citing two cases decided over a century

ago, Deyoe v. Woodworth

, 144 N.Y. 448 (1895), and People v. Willett

, 213 N.Y. 368

(1915). Those decisions, he claims, show that the statutes then in effect were

concerned with the buying and selling of nominations themselves, rather than

with “preparatory step[s],” Appellant’s Br. 28, or “eligibility criteri[a],” id

. at 29.

We do not find this especially instructive. Neither case discusses such

preparatory steps or eligibility criteria at all, let alone holds that the statutes at

issue did not reach them. But more importantly, as Halloran recognizes, Deyoe

and Willett were decided in an era that predates modern primary elections, let

alone Wilson

‐ Pakulas. We are aware of no authority for the unlikely proposition

that §§ 200.45 and 200.50 were intended to reach bribery only in connection with

candidate

‐ selection procedures already prevalent in the early twentieth century.

Finally, Halloran raises the specter that a reading of §§ 200.45 and 200.50 in

which the word “may” connotes possibility, rather than purpose, would prohibit

paying for many political activities that are commonly compensated, such as

appearing in a political advertisement, carrying petitions, or canvassing voters,

on the basis that those activities are meant to increase the possibility that a

32candidate will be nominated. That has constitutional implications, Halloran

argues, because “[a] statute that reaches ‘a substantial amount of innocent

conduct’ confers an impermissible degree of discretion on law enforcement

authorities to determine who is subject to the law.” Arriaga v. Mukasey

, 521 F.3d

219, 228 (2d Cir. 2008), quoting City of Chicago v. Morales

, 527 U.S. 41, 60–61

(1999).

But the activities Halloran lists are readily distinguishable from the

situation before us. Unlike Wilson

‐ Pakulas, endorsements and advertisements

are not statutory conditions of eligibility for nomination; and while gathering the

required number of signatures on a designating petition is such a condition, see

N.Y. Elec. Law §§ 6

‐ 118, 6

‐ 136, that condition is fulfilled by the voters who sign

the petition, not by the party officer who circulates it. Put another way, none of

Halloran’s examples involve an exercise of statutory authority: only a party

committee can issue a Wilson

‐ Pakula, whereas anyone can carry a petition, 6

6 Subject to the caveat that every designating petition must also be signed by a

witness who is a notary public, a commissioner of deeds, or a duly qualified

voter of the state of New York who is an enrolled member of the relevant

political party, N.Y. Elec. Law § 6

‐ 132(2), (3), which means that in practice only

those people circulate petitions. But one is not required by statute to be a party

officer or hold any other official position to do so.

33solicit votes, appear in an advertisement, or offer an endorsement (although, of

course, a party officer’s endorsement will often be more valuable than that of the

average voter). The New York Court of Appeals has explained that article 200 of

the Penal Law was enacted “to help prevent and prosecute abuses of power in

government.” People v. Garson

, 6 N.Y.3d 604, 611 (2006). But to abuse power, one

must first use it; when a party officer endorses a candidate, he may be leveraging

the influence conferred by his position, but he is not acting in an official capacity

or otherwise directly affecting the course of governmental action. We are

satisfied that, by contrast, accepting bribes in exchange for an exercise of

statutory authority that renders the bribe payer eligible to be nominated falls

squarely within the category of abuses of power that the New York legislature

was concerned with preventing.

In sum, §§ 200.45 and 200.50 prohibit the conduct constituting the Wilson

‐

Pakula Scheme under any plausible reading of those statutes, and neither the

case law nor Halloran’s constitutional concerns persuade us otherwise. 7

7 Nor does Halloran’s invocation of the rule of lenity, which comes into play

when “ordinary tools of legislative construction fail to establish that the

Government’s position is unambiguously correct.” United States v. Valle

, 807 F.3d

508, 526 (2d Cir. 2015).

34Accordingly, we reject Halloran’s challenge to his conviction on Count Three. 8

III. The Wilson

‐ Pakula Scheme Honest

‐ Services Fraud Conviction

Count Two of the indictment charged Halloran with committing wire

fraud under an honest

‐ services fraud theory in connection with the Wilson

‐

Pakula Scheme. A person commits wire fraud when, “having devised or

intending to devise any scheme or artifice to defraud,” he uses interstate wires

“for the purpose of executing such scheme or artifice.” 18 U.S.C. § 1343. Section

1346, the honest

‐ services fraud statute, defines the term “scheme or artifice to

defraud” to include “a scheme or artifice to deprive another of the intangible

right of honest services,” id

. § 1346, which the Supreme Court in turn has held to

encompass “only bribery and kickback schemes.” Skilling v. United States

, 561

U.S. 358, 368 (2010).

Halloran does not dispute that the Wilson

‐ Pakula Scheme falls into the

category of “bribery and kickback schemes” prohibited by § 1346 under Skilling

.

Instead, he focuses on another element of honest

‐ services fraud mentioned in

8 Because we believe that our reading of the statutes is dictated by their text and

history, and because Halloran cites no persuasive authority casting significant

doubt on that reading, we see no reason to certify questions about the meaning of

the statutes to the New York Court of Appeals, and deny Halloran’s motion

asking us to do so.

35passing in Skilling : a violation of a fiduciary duty. See Skilling

, 561 U.S. at 407

(describing the “solid core” of the honest

‐ services doctrine as involving

“offenders who, in violation of a fiduciary duty, participated in bribery or

kickback schemes”). Concurring in the judgment in Skilling

, Justice Scalia

emphasized the lingering ambiguities in § 1346, pointing out that “the nature and

content of the fiduciary duty central to the ‘fraud’ offense” remained undefined,

and that even “the source of the fiduciary obligation

– whether it must be positive

state or federal law, or merely general principles, such as the obligations of

loyalty and fidelity that inhere in the employment relationship”

– was unclear.

Id

. at 417 (Scalia, J

., concurring in the judgment) (internal quotation marks and

citations omitted) (emphasis in original); see also United States v. Rybicki

, 354 F.3d

124, 163 (2d Cir. 2003) (en banc) (Jacobs, J

., dissenting) (noting the majority’s

failure to define the type of duty that must be breached to violate § 1346, or to

decide whether the source of the duty was state or federal law).

Seizing upon these uncertainties, Halloran asserts that § 1346 is

unconstitutionally vague as applied to the Wilson

‐ Pakula conduct. “The

void

‐ for

‐ vagueness doctrine requires that a penal statute define the criminal

offense with sufficient definiteness that ordinary people can understand what

36conduct is prohibited and in a manner that does not encourage arbitrary and

discriminatory enforcement.” United States v. Rosen

, 716 F.3d 691, 699 (2d Cir.

2013) (alteration omitted). “The doctrine addresses concerns about (1) fair notice

and (2) arbitrary and discriminatory prosecutions.” Id

. (internal quotation marks

omitted). Under the “fair notice” prong, a court must determine “whether the

statute, either standing alone or as construed, made it reasonably clear at the

relevant time that the defendant’s conduct was criminal.” Id

.

Halloran argues that § 1346 fails the “fair notice” prong because it does not

make clear whether the Republican county chairs were under a cognizable

fiduciary duty to their party not to accept payments in exchange for approving

Wilson

‐ Pakulas. Halloran suggests that the answer to that question may differ

depending on whether federal or New York law is controlling. We are not

persuaded. In all respects relevant to the Wilson

‐ Pakula conduct, 9 there is no

meaningful difference between the federal and New York law standards for

determining whether a fiduciary duty exists. In New York, “a fiduciary

9 Because Halloran brings an “as

‐ applied” vagueness challenge, the challenge

must fail if Halloran’s own conduct is clearly proscribed by § 1346, whatever

ambiguities in the statute’s scope may otherwise exist. See Holder v. Humanitarian

Law Project

, 561 U.S. 1, 18–19 (2010).

37relationship arises between two persons when one of them is under a duty to act

for or to give advice for the benefit of another upon matters within the scope of

the relation.” Oddo Asset Mgmt. v. Barclays Bank PLC

, 19 N.Y.3d 584, 592–93

(2012) (internal quotation marks omitted). “Essential elements of a fiduciary

relation are reliance, de facto control and dominance.” AG Capital Funding

Partners, L.P. v. State St. Bank & Trust Co.

, 11 N.Y.3d 146, 158 (2008) (internal

quotation marks and alterations omitted). Similarly, the Ninth Circuit, in a case

under § 1346, has explained: “A fiduciary is generally defined as ‘a person who is

required to act for the benefit of another person on all matters within the scope of

their relationship.’” United States v. Milovanovic

, 678 F.3d 713, 722 (9th Cir. 2012)

(en banc) (alteration omitted), quoting Black’s Law Dictionary (9th ed. 2009).

And we have said, in a case involving federal securities law, that “[a]t the heart of

the fiduciary relationship lies reliance, and de facto control and dominance.”

United States v. Chestman

, 947 F.2d 551, 568 (2d Cir. 1991) (internal quotation

marks omitted); see also United States v. Szur

, 289 F.3d 200, 210 (2d Cir. 2002)

(approving of jury instructions tracking the language in Chestman in a case under

38§ 1346). 10

Halloran offers two reasons why the county chairs may have breached a

fiduciary duty under federal law but not under New York law, neither of which

is persuasive. 11 First, he suggests that New York law does not impose fiduciary

duties upon unpaid volunteers. 12 But he cites no case law so holding, and there

are intimations to the contrary in New York cases. See Schneiderman ex rel. People

v. Lower Esopus River Watch, Inc.

, 975 N.Y.S.2d 369, *20 (Table) (Sup. Ct., Ulster

Cty. 2013) (“Fiduciary duties arise regardless of whether the party in whom trust

is reposed is a volunteer or is compensated.”); cf. Roslyn Union Free Sch. Dist. v.

Barkan

, 16 N.Y.3d 643, 648, 653 (2011) (holding that several claims, including one

10 Indeed, the district court, having concluded, as we do, that there is no

meaningful difference between federal and New York law on the question of the

existence of a fiduciary duty, gave the jury a single instruction on the issue that

reflected both bodies of law, which Halloran does not challenge on appeal.

11 A third reason given by Halloran requires only cursory analysis. He claims

that in New York, fiduciary duties “are defined by specific laws and rules.”

Reply Br. 15. As we have explained, however, the county chairs’ duty not to

accept the Wilson

‐ Pakula bribes overlapped with their duty under N.Y. Penal

Law § 200.50 not to accept bribes for public office. Thus, whether or not

Halloran’s understanding of New York law is correct, this argument draws no

relevant distinction between federal and New York law.

12 Halloran cites no record evidence that county party chairs are uncompensated,

but, as the government does not dispute his assertion, we assume for purposes of

this opinion that it is so.

39for breach of fiduciary duty, against a volunteer school board member were

timely, without addressing the merits of the claims) ; Strax v. Murray Hill Mews

Owners Corp., 809 N.Y.S.2d 759, 761 (App. Term 1st Dep’t 2005) (affirming the

trial court’s finding that the plaintiff had “gratuitously” rendered brokerage

services “in furtherance of her fiduciary duties as a director” of a cooperative

apartment corporation).

Second, citing only a nonprecedential trial court decision, Halloran claims

that under New York law the county chairs did not violate a fiduciary duty to the

Republican Party because they did not “injure or act contrary to the interests” of

the party, Vione v. Tewell

, 820 N.Y.S.2d 682, 686 (Sup. Ct., N.Y. Cty. 2006), and

instead furthered those interests by adding to the choices available to Republican

voters in the primary election. That argument contradicts the legislative

conclusion expressed by the Wilson

‐ Pakula Law. The New York Court of

Appeals has stated that the purpose of the law “was to prevent the invasion or

takeover of the party by outsiders.” Master v. Pohanka

, 10 N.Y.3d 620, 626 (2008).

That purpose implies that the party committees to which the legislature has given

authority over Wilson

‐ Pakulas will act as gate

‐ keepers, using independent

judgment, and not indiscriminately issue Wilson

‐ Pakulas upon request (or to the

40highest bidder). We have no basis for ignoring the legislature’s judgment and

accepting Halloran’s contention that political parties instead benefit from an

open

‐ door policy when it comes to candidates for the party’s nomination.

Halloran’s next argument is less a vagueness argument than a direct attack

on the sufficiency of the evidence supporting his conviction on Count Two. The

Wilson

‐ Pakula Law, he points out, entrusts the issuance of Wilson

‐ Pakulas to

candidates for New York citywide office to “a majority vote of those present at a

joint meeting of the executive committees of each of the county committees of the

party within the city of New York,” N.Y. Elec. Law § 6

‐ 120(3), and not to the

county chairs themselves. How could the chairs have a fiduciary duty not to

accept bribes in exchange for Wilson

‐ Pakulas, Halloran asks, when they did not

have the authority to act on behalf of the party by issuing Wilson

‐ Pakulas in the

first place?

The argument fails, however, because the existence of a fiduciary duty

depends not on formal authority but on “de facto control.” AG Capital

, 11 N.Y.3d

at 158; Chestman

, 947 F.2d at 568. The chairs may not have had de jure power

under § 6

‐ 120(3) to make final decisions on Wilson

‐ Pakulas, but as long as the

party committees in fact followed the chairs’ lead with respect to those decisions,

41no legal principle bars a jury finding that the chairs owed a fiduciary duty not to

support the issuance of a Wilson

‐ Pakula unless (in their judgment) it was in the

best interests of the party. The existence of a fiduciary duty is a question of fact

for the jury, Milovanovic

, 678 F.3d at 723, and as such (as we have explained) it is

subject to an “exceedingly deferential” standard of review. Binday

, 804 F.3d at

572. The jury heard testimony from Savino that, as chair, he understood his duty

to be to act in the best interests of the Bronx Republican Party, and that the party

“relied on [him] and [his] suggestions as to how they would proceed, what they

would vote on, who they would support, who they wouldn’t support.” Tr. 1824.

Similarly, Isaacs testified that he was “supposed to promote” the interests of the

members of the Republican Party, Tr. 1972, that party members relied on him to

make decisions on their behalf, and that he exercised control over the party

committee and its affairs. This unrebutted testimony is corroborated by the

recordings introduced at trial, in which all of the conspirators appear to act on

the assumption that all that is needed to obtain a Wilson

‐ Pakula is the backing of

three of the county chairs. The evidence was thus sufficient to support a finding

that the county chairs had de facto control over, and thus fiduciary duties to their

party with respect to, Wilson

‐ Pakulas.

42Finally, Halloran seeks refuge in the First Amendment, arguing that the

Supreme Court in Citizens United v. Federal Election Commission

, 558 U.S. 310

(2010), created a “brave new world

. . . in which the institutionalized bribery of

campaign finance

. . . is constitutionally protected,” thus “blurring

. . . the

distinction between protected speech and bribery.” Reply Br. 22. “[I]t would

exalt form over substance,” he adds, “to hold that Halloran’s mere failure to

arrange for the payments in question to be made through a political action

committee converts protected speech to fraud.” Id

. This rhetorical gesture is

unsustainable as a legal argument. Citizens United invalidated a ban on

independent expenditures by corporations and unions for certain types of

political speech. 558 U.S. at 365–66. It did not hold that the First Amendment

protects bribery

– to the contrary, the Court explicitly discussed the government’s

interest in preventing “ quid pro quo corruption” or the appearance thereof. Id

. at

356–57, 359. Quid pro quo corruption

– the payment of bribes in exchange for the

issuance of a Wilson

‐ Pakula

– is the very essence of the Wilson

‐ Pakula Scheme.

43For these reasons, we detect no legal error warranting reversal of

Halloran’s conviction on Count Two. 13

IV. Remaining Arguments

Halloran’s remaining arguments, as advanced by counsel or in his pro se

submission, require much less discussion.

A. Sentencing

Halloran’s challenges to the procedural and substantive reasonableness of

his sentence are without merit. First, Halloran argues that the district court

committed procedural error by “declining to consider” the two

‐ year sentence

imposed upon former Virginia Governor Bob McDonnell in an unrelated bribery

case in the Eastern District of Virginia. Appellant’s Br. 64. We disagree.

Although “the need to avoid unwarranted sentence disparities among

defendants with similar records who have been found guilty of similar conduct”

13 We accordingly deny Halloran’s motion that we hold this appeal in abeyance

pending the Supreme Court’s decision in McDonnell v. United States

, No. 15

‐ 474.

McDonnell principally presents a quite different issue: the meaning of “official

act” in the context of a bribery prosecution under the honest

‐ services statute and

the Hobbs Act. Because there can be no dispute that disbursing public funds and

issuing a Wilson

‐ Pakula are official acts, McDonnell has no apparent relevance to

the issues in this appeal. To the extent the petitioner in McDonnell also argues

that the wire fraud honest

‐ services statute is unconstitutionally vague, we are

required to follow the Supreme Court’s holding in Skilling

, 561 U.S. at 412–13.

44is a factor district courts must consider when imposing sentence, 18 U.S.C.

§ 3553(a)(6), that provision does not require a district court to conform its

sentence to any single other sentence adduced by a defendant. Halloran further

argues that the district court erred in calculating the loss amount under U.S.S.G.

§ 2B1.1(b)(1). “Facts in support of a sentencing calculation need only be proven

by a preponderance of the evidence, and the district court’s findings will not be

disturbed unless clearly erroneous.” United States v. Beverly

, 5 F.3d 633, 642 (2d

Cir. 1993). The district court’s determination that Halloran accepted a $7500 cash

bribe on September 7, 2012 was sufficiently supported by trial testimony and by a

recording of the meeting at which the bribe was made.

Second, in reviewing the substantive reasonableness of a sentence, we “will

set aside only those outlier sentences that reflect actual abuse of a district court’s

considerable sentencing discretion.” United States v. Messina

, 806 F.3d 55, 66 (2d

Cir. 2015). Under that standard, Halloran’s 120

‐ month sentence, which was

below the Guidelines range of 151 to 188 months, was reasonable. See United

States v. Perez

‐ Frias

, 636 F.3d 39, 43 (2d Cir. 2011) (“It is

. . . difficult to find that a

below

‐ Guidelines sentence is unreasonable.”). Halloran’s arguments to the

contrary are unavailing. The Wilson

‐ Pakula Scheme involved the paying of quid

45pro quo bribes and was thus, contrary to Halloran’s contention, not in a “gray

area” of the law. Appellant’s Br. 67. The district court discussed his service to

the community at length, and in fact imposed a below

‐ Guidelines sentence on the

basis of that service. And the relative length of Halloran’s sentence when

compared with those imposed in certain other bribery cases is readily explained

by aggravating factors such as Halloran’s extensive perjury at trial and the fact

that he participated in two separate bribery schemes.

B. Brady Issues

Halloran asserts that the government’s failure to produce all of the Stern

Calls until eight days after the beginning of trial constituted a Brady violation

requiring dismissal of the indictment. The government’s failure to produce

evidence is prejudicial and thereby violates a defendant’s rights under Brady

“only if there is a reasonable probability that, had the evidence been disclosed to

the defense, the result of the proceeding would have been different.” United

States v. Persico

, 645 F.3d 85, 111 (2d Cir. 2011) (internal quotation marks omitted).

Further, “as long as a defendant possesses Brady evidence in time for its effective

use,” there can be no Brady violation. United States v. Coppa

, 267 F.3d 132, 144 (2d

Cir. 2001).

46Halloran has not established a reasonable probability that earlier disclosure

of the Stern Calls would have changed the verdict at trial. He argues, on the

basis of calls indicating that Stern had other unmonitored phone lines and email

accounts, that the government lost control of Stern and allowed him to pursue an

agenda of selectively targeting Republican politicians. Such unsubstantiated

speculation cannot support a finding that undisclosed evidence is material under

Brady

. See Riascos

‐ Prado v. United States

, 66 F.3d 30, 33 n.1 (2d Cir. 1995). Another

call suggesting that Stern may have given Halloran only $2000, rather than $7500,

on September 7, 2012 was not relevant to Halloran’s guilt or innocence, but only

to the loss calculation for sentencing purposes. And the call in which Halloran’s

aide explains to Stern the proper procedures for applying for discretionary

funding has no bearing on whether Halloran independently accepted bribes in

exchange for providing those funds.

Further, when the existence of the Stern Calls came to light, Halloran did

not join his co

‐ defendants in moving for a mistrial and instead opted to proceed

with the trial following a weeklong continuance. The continuance gave Halloran

time to make “effective use” of the calls, Coppa

, 267 F.3d at 144, as shown by the

fact that Halloran’s counsel was able to question witnesses about the

47subject

‐ matter of the calls. Halloran’s decision, following the continuance, not to

introduce any of the Stern Calls into evidence further indicates that the calls were

not material to his defense. 14

C. Jurisdictional Elements

Finally, Halloran contends that the government failed to prove the

jurisdictional elements of his offenses. We disagree. With respect to wire fraud,

the government was required to prove that Halloran either used interstate wires

in furtherance of his scheme, or “knew that the use of interstate mail and wire

services was a reasonably foreseeable consequence of the scheme.” United States

v. Carpenter

, 791 F.2d 1024, 1035 (2d Cir. 1986). A “wire communication whose

origin and ultimate destination are within a single state” can violate the wire

fraud statute if it is “routed through another state.” Ideal Steel Supply Corp. v.

14 Even if Halloran had established a Brady violation, dismissal of the indictment

would not have been an appropriate remedy. “[T]he remedy for a Brady

violation is vacatur of the judgment of conviction and a new trial in which the

defendant now has the Brady material available to her. ʺ Poventud v. City of New

York

, 750 F.3d 121, 133 (2d Cir. 2014) (en banc). Dismissal of the indictment is an

“extreme sanction” and a “drastic remedy,” United States v. Fields

, 592 F.2d 638,

647 (2d Cir. 1978), appropriate only when it is otherwise “impossible to restore a

criminal defendant to the position that he would have occupied vis

‐ a

‐ vis the

prosecutor,” or when there is a “widespread or continuous” pattern of

prosecutorial misconduct, id

. at 648. Neither of those conditions was satisfied

here.

48Anza

, 373 F.3d 251, 265 (2d Cir. 2004), rev’d in part on other grounds

, 547 U.S. 451

(2006). As to the Travel Act, the government was required to prove that Halloran

traveled interstate or used a facility in interstate commerce (e.g., the telephone or

the internet), or caused an agent to do so, with the intent to promote the

underlying unlawful activity

– i.e., the bribery. 18 U.S.C. § 1952(a); United States

v. Jenkins

, 943 F.2d 167, 172 (2d Cir. 1991). Purely intrastate use of an interstate

facility is sufficient to violate the Travel Act. United States v. Nader

, 542 F.3d 713,

722 (9th Cir. 2008); cf

. United States v. Perez

, 414 F.3d 302, 304–05 (2d Cir. 2005)

(construing the identical phrase “facility in interstate commerce” in the federal

murder

‐ for

‐ hire statute to cover wholly intrastate communications made using

such a facility).

Here, the jurisdictional elements of both offenses were sufficiently

supported by evidence that Halloran made phone calls and sent text messages to

Raj while he knew that Raj was out of state, and sent Raj two letters by email in

connection with the Discretionary Funds Scheme; and by evidence that Halloran

caused Smith to send text messages to Raj in connection with the Wilson

‐ Pakula

Scheme that were routed through North Carolina.

49Halloran’s reliance on United States v. Archer

, 486 F.2d 670 (2d Cir. 1973),

which introduced the concept of “manufactured jurisdiction,” id

. at 682, is

misplaced. “Courts have refused to follow Archer when there is any link between

the federal element and a voluntary, affirmative act of the defendant.” United

States v. Wallace

, 85 F.3d 1063, 1066 (2d Cir. 1996). In Wallace

, that link was

established where the defendant purposefully tried to defraud Citibank (a

federally insured bank), even though “Citibank was introduced to the scheme

only because of the FBI’s actions.” Id

. at 1067. Similarly, Halloran took

affirmative steps in deciding to text Raj while he was outside New York and in

causing Smith to communicate with Raj, even though Raj’s interstate travel and

the routing of his text messages through North Carolina were the result of the

FBI’s actions.

CONCLUSION

We hold that there was sufficient evidence to support a finding that

Halloran took part in the Discretionary Funds Scheme with the intent required to

sustain his convictions, and that Halloran’s Wilson

‐ Pakula Scheme conduct

violated both the Travel Act and the honest services fraud statute. We have

considered all of Halloran’s remaining arguments, and find them without merit.

Accordingly, the judgment of the district court is affirmed.

50