2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-23-2014

USA v. John Bencivengo

Precedential or Non-Precedential: Precedential

Docket No. 13-1836

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 13-1836

___________

UNITED STATES OF AMERICA

v.

JOHN BENCIVENGO,

 Appellant

On Appeal from the United States District Court

for the District of New Jersey

(District Court No.: 3-12-cr-00429-001)

District Court Judge: Honorable Anne E. Thompson

Argued on March 6, 2014

(Opinion filed: April 23, 2014)

Before: RENDELL, SMITH and HARDIMAN, 

Circuit Judges
2

Jerome A. Ballarotto, Esquire (Argued)

143 Whitehorse Avenue

Trenton, NJ 08610

Counsel for Appellant

Mark E. Coyne, Esquire

Steven G. Sanders, Esquire (Argued)

United States Attorney

Office of the United States Attorney 

970 Broad Street

Room 700

Newark, NJ 071020

Counsel for Appellee

O P I N I O N 

RENDELL, Circuit Judge:

Appellant John Bencivengo, former Mayor of 

Hamilton Township, New Jersey, was convicted of violating,

inter alia, the Hobbs Act, 18 U.S.C. § 1951(a) and § 2, and 

the Travel Act, 18 U.S.C. § 1952(a)(1) and (3) and § 2, for 

accepting money from Marliese Ljuba in exchange for 

agreeing to influence members of the Hamilton Township 

School Board to refrain from putting the School District’s 

insurance contract up for competitive bidding. For the 
3

reasons set forth below, we will affirm the judgment of the 

District Court.

I. Background

Bencivengo was elected Mayor of Hamilton 

Township, New Jersey in 2007. Prior to his election, 

Bencivengo served on the Hamilton Township School Board 

and was a prominent Hamilton Township politician, serving 

as Chairman of the local Republican Party. Bencivengo was 

reelected as Mayor in 2011. 

Bencivengo was close friends with Marliese Ljuba, 

whom he had known since 2004.1 Ms. Ljuba was the 

insurance broker for the Hamilton Township School District. 

She personally earned between $600,000 and $700,000 in 

commissions from insurance contracts with the School 

District in 2011 alone. In 2011, the School District’s 

insurance contracts were up for renewal. One School Board 

member, Stephanie Pratico, urged the School Board to place 

the contract up for competitive bidding, rather than to simply 

renew the existing contract held by Ms. Ljuba’s firm. 

In March of 2011, Bencivengo, who was facing 

financial difficulties, asked the Township’s Director of 

Community Planning and Compliance, Robert Warney, to 

approach Ms. Ljuba about providing him some financial

assistance. In May 2011, the two met, and ultimately Ms. 

 

1

These facts are largely gleaned from the trial testimony of 

Ms. Ljuba and from the FBI’s recorded conversations 

between Bencivengo and Ms. Ljuba. They are substantially 

uncontroverted by Mr. Bencivengo, who did not testify at 

trial. 
4

Ljuba agreed to provide Bencivengo with $5,000. There was 

some discussion of the money taking the form of a loan; 

however, Ms. Ljuba suggested that, instead, Bencivengo 

convince Ms. Pratico not to put the School Board’s insurance 

contract up for bid. Ms. Ljuba believed that Bencivengo 

could influence Ms. Pratico because “[t]he [M]ayor is the 

head of the [R]epublican party in Hamilton Township. He 

has a lot of political influence over anyone in a lower position 

in the township government.” (Supp. App. 103.) 

Bencivengo agreed to help Ms. Ljuba with Ms. Pratico. 

Worried about raising alarms at the bank with large cash 

withdrawals, Ms. Ljuba asked Bencivengo if she could write 

him a check instead of giving him cash. Bencivengo did not 

want a check made out to him, so they agreed that Ms. 

Ljuba’s husband would write a check to Mr. Warney’s wife, 

and put in the memo line that the check was for a “cherry 

bedroom set.”

On June 29, 2011, Bencivengo approached Ms. Ljuba 

again, asking for her assistance in helping him pay his 

property taxes. By this time, Ms. Ljuba was cooperating with 

the FBI and was recording her conversations with 

Bencivengo. Ms. Ljuba again agreed to assist him, stating, 

“You help me with Pratico, you got anything because you 

know I am gonna need that down the road.” (Supp. App. 

979.) Ms. Ljuba meant that Bencivengo would “talk to [Ms. 

Pratico] and influence her not to direct the school district to 

go out to bid for the brokerage contract.” (Supp. App. 138.) 

Bencivengo responded that he was “helping you as much as I 

can.” (Supp. App. 138.) 

On July 11, 2011, Ms. Ljuba and Bencivengo had 

lunch in Hamilton. Ms. Ljuba told Bencivengo that she 
5

wanted to select the next person to fill a vacant seat on the 

School Board, and had a particular woman in mind—the 

sister of an insurance company representative who was a 

political unknown in Hamilton Township. Bencivengo told 

Ms. Ljuba that he would approve the woman. Ms. Ljuba 

testified that she needed his approval because, “in Hamilton it 

is practice that if you want a position on the school district 

and you’re a [R]epublican you would go to the [M]ayor and 

ask for his approval.” (Supp. App. 142.) The two also 

discussed Ms. Ljuba’s planned payment to Bencivengo. The 

two agreed that the money would be exchanged during their 

upcoming trip to Atlantic City, because they could make it 

seem as though Bencivengo had won the money gambling. 

On July 28, 2011, Bencivengo met Ms. Ljuba in her 

hotel room in Atlantic City, and she gave him $5,000 in $100 

bills. Bencivengo informed Ms. Ljuba that he had already 

talked to Ms. Pratico, and had urged Ms. Pratico that “you 

have to support those who support you,” reminding her that 

he had backed her when she wanted to run for School Board. 

(Supp. App. 159.) Bencivengo also stated, “I’m gonna give 

[Pratico] a call and see if I can get rid of her off the school 

board, which would be huge, and get her in the [State] 

Assembly . . . .” (Supp. App. 1005.) Bencivengo meant that 

he intended to encourage Ms. Pratico to run for a seat in the 

State Assembly. (Bencivengo Br. 17.) 

It is undisputed that, as Mayor, Bencivengo had no 

statutory power or authority over the School Board. He had 

no vote on the Board, nor any official role in choosing 

members of the School Board. 

Bencivengo was charged with two counts of violating 

the Hobbs Act and two counts of violating the Travel Act, as 
6

premised on the New Jersey bribery statute, N.J.S.A. 2C:27-

2.

2

 On October 12, 2012, approximately one month before 

trial began, the Government submitted its proposed jury 

instructions. With respect to the Hobbs Act counts, the 

instructions stated, in relevant part, as follows:

Extortion under color of official 

right means that a public official 

induced, obtained, accepted, or 

agreed to accept a payment to 

which he was not entitled, 

knowing that the payment 

accepted or to be accepted was 

made in return for taking, 

withholding or influencing official 

acts. . . . The Government is not 

required to prove that the public 

official actually possessed the 

official power to guarantee, deny, 

or influence any official actions. 

It is enough to show that [Ljuba] 

reasonably believed that the 

public official had the actual, 

residual, or anticipated official 

power to help [Ljuba] with 

respect to matters pending before 

a government agency. 

* * *

 

2 Bencivengo was also charged with money laundering in 

violation of 18 U.S.C § 1956(a)(1)(B)(i) and § 2, but has not 

appealed his conviction on that charge. 
7

A public official commits 

extortion if he intentionally 

obtains, accepts, or agrees to 

accept money or other valuable 

benefit to which he was not 

entitled, knowing that the 

payment was made in return for 

taking, withholding, or 

influencing official action. 

Official action means any action 

by an official relating to their 

employment or function as a 

public servant, to include using 

one’s influence with other 

government officials, or 

expediting treatment of the 

payor’s business with 

government. 

Government’s Proposed Jury Instructions, Case 3:12-cr00429-AET (Doc. 20-1, at 19-22) (hereinafter, Gov. Proposed 

Jury Instructions) (emphasis added). Bencivengo did not 

object to the Government’s proposed instructions; nor did he 

file his own proposed jury instructions. 

At the close of the Government’s case, Bencivengo’s 

counsel moved for judgment of acquittal under Fed. R. Crim. 

P. 29, on the ground that “the United States has failed to 

provide sufficient evidence that a reasonable jury can 

conclude that Mr. Bencivengo accepted this money in 

exchange for an exercise of his official duties as Mayor of 

Hamilton Township.” (Supp. App. 483.) The Government 
8

opposed the motion, arguing that “[i]t is enough to show that 

the payor reasonably believed that the public official had the 

actual, residual or anticipated official power to help the payor 

with respect to matters pending before a government agency.” 

(Supp. App. 484-85.) The District Court denied 

Bencivengo’s motion, stating that:

The fact that [Bencivengo] was 

the Mayor of Hamilton Township 

and not the school board president 

or chairman does not matter. The 

astounding testimony that has 

been presented in this case of how 

the . . . interconnectedness 

between the officials of the 

township, the members of the 

school board, the schemes to 

place persons from office in 

Hamilton Township into the New 

Jersey State Assembly, all 

pointing to this pervasive 

influence and power actively 

exercised, it is surely a jury 

question as to whether the 

payments in this case were made 

to affect official conduct of the 

defendant.

(Supp. App. 487-88) (emphasis added).

At the close of evidence, the District Court instructed 

the jury in accordance with the proposed jury instructions 

filed by the Government. (Supp. App. 637-39.) On 
9

November 20, 2012, the jury returned a verdict of guilty on 

each count of the Indictment. 

On appeal, Bencivengo argues that the District Court 

erred by failing to grant his motion for judgment of acquittal. 

With respect to his conviction under the Hobbs Act, he urges 

that the Government failed to identify any official act that 

was involved. He argues that, as Mayor, he had no official 

authority over actions of the School Board, and therefore, had 

no actual power to replace Ms. Pratico or to otherwise ensure 

that Ms. Ljuba retained the insurance contract with the School 

District. Bencivengo challenges his conviction under the 

Travel Act for similar reasons. He states that, in agreeing to 

exercise his influence over members of the School Board, he 

was not “performing a governmental function,” as required by 

the New Jersey bribery statute that served as the predicate for 

his Travel Act conviction.

In addition, Bencivengo urges that his convictions 

under the Hobbs Act and Travel Act require proof of the same 

elements, and that, therefore, his conviction on both counts 

violates the Double Jeopardy Clause of the Fifth Amendment. 

Finally, he argues that the District Judge’s interruptions and 

criticism of defense counsel during the trial unduly prejudiced 

the jury against him, requiring reversal. 

II. Discussion

A. Hobbs Act

1. Motion for Judgment of Acquittal
10

We exercise plenary review over Bencivengo’s claim 

that the District Court erred in failing to grant his motion for 

judgment of acquittal on the Hobbs Act counts and apply the 

same standard as the District Court. United States v. Brodie, 

403 F.3d 123, 133 (3d Cir. 2005). Accordingly, we “‘review 

the record in the light most favorable to the prosecution to 

determine whether any rational trier of fact could have found 

proof of guilt beyond a reasonable doubt based on the 

available evidence.’” Id. (quoting United States v. Smith, 294 

F.3d 473, 476 (3d Cir. 2002)).

The Hobbs Act makes it a crime to “obstruct . . . delay. 

. . or affect . . . commerce or the movement of any article or 

commodity in commerce, by robbery or extortion.” 

“Extortion” is defined as “the obtaining of property from 

another, with his consent, induced by wrongful use of actual 

or threatened force, violence, or fear, or under color of 

official right.” 18 U.S.C. §§ 1951(a), (b)(2). The 

Government urged that Bencivengo acted “under color of 

official right.” On appeal, Bencivengo argues that his 

position as Mayor of Hamilton Township gave him no official 

power over the School Board and he should, therefore, have 

been acquitted, as he did not act “under color of official 

right.” Similarly, he argues that Ms. Ljuba, a savvy operator 

well-versed in Hamilton Township politics, could not have 

reasonably believed he had the power to cause the School 

Board to decide against putting its insurance contract up for 

competitive bidding. Accordingly, he argues, the 

Government has failed to establish that he acted “under color 

of official right.”

The Government contends that Bencivengo’s argument 

is foreclosed by our opinion in United States v. Mazzei, 521 
11

F.2d 639 (3d Cir. 1975) (en banc), cert. denied, 423 U.S. 

1014 (1975). In that case, defendant Mazzei, a Pennsylvania 

state senator, used his influence to arrange for two state

agencies to rent office space owned by property rental 

company BMI. As a legislator, Mazzei had no actual power 

over the leasing of rental property by state agencies. Mazzei 

informed a representative of BMI that “it was the practice on 

all state leases that a ten percent of the gross amount of the 

rentals would be paid to a senate finance re-election 

committee.” Id. at 641. BMI paid the money to Mazzei in 

cash. 

On appeal, Mazzei argued that the payments made to 

him did not violate the Hobbs Act, as they merely represented

BMI’s “voluntary purchase of his influence in an area in 

which he never pretended to have any official power.” Id. at 

643. We rejected this argument, holding that, “in order to 

find that defendant acted ‘under color of official right,’ the 

jury need not have concluded that he had actual de jure power 

to secure grant of the lease as long as it found that [BMI] 

held, and defendant exploited, a reasonable belief that the 

state system so operated that the power in fact of defendant’s 

office included the effective authority to determine recipients 

of the state leases here involved.” Id. (emphasis added). We 

stated that the government had presented “sufficient evidence 

to justify a finding by the jury that [BMI] could reasonably 

have believed that as a concomitant of his official position 

defendant possessed not mere influence over state leases but 

in fact had effective power to determine to whom these leases 

were awarded even though his office gave him no such de 

jure power.” Id. at 644 (emphasis added). 
12

Bencivengo argues that Mazzei is not controlling

because our holding in that case turned on the issue of BMI’s 

reasonable belief that Mazzei had “effective power” to 

determine the outcome of the decision, and “not mere 

influence.” Id. He urges that, in the instant case, the 

Government does not contend that Ms. Ljuba believed 

Bencivengo to have “effective power” over the School 

Board’s decision regarding whether to put the insurance 

contract up for bid—indeed, Ms. Ljuba testified to that effect. 

Instead, the Government rests its case on Ms. Ljuba’s 

purchase of, and belief in, Bencivengo’s influence over the 

members of the School Board by virtue of his position as 

Mayor.

3

 

While we find some merit in Bencivengo’s argument 

that our holding in Mazzei did not include situations where

the victim of the extortion, here Ms. Ljuba, believed that the 

public official had only influence, and not “effective power” 

over the decision, that does not foreclose us from extending 

its reach. We have not previously had occasion to determine 

whether the power to influence by virtue of one’s office 

 

3

See, e.g., Gov. Br. 23 (“Here, the evidence allowed a 

rational jury to find that Bencivengo accepted payments from 

Ljuba in exchange for promising to use his influence as 

mayor to intervene with school board members . . . .”); id. at 

30 (“Here, there was ample evidence from which a rational 

jury could infer that Ljuba reasonably believed that 

Bencivengo had the authority to perform his end of the 

corrupt bargain, i.e., influencing school board members.”); id. 

at 31 (“what matters was the reasonable belief in 

Bencivengo’s official influence over school board members”) 

(emphasis in original). 
13

satisfies the “under color of official right” requirement. 

However, other courts of appeals have explicitly held that the 

mere agreement to exercise influence is sufficient to sustain a 

conviction for extortion under the Hobbs Act. For example, 

in United States v. Loftus, 992 F.2d 793 (8th Cir. 1993), a 

county commissioner was convicted of Hobbs Act extortion 

for accepting a bribe in exchange for agreeing to influence the 

city council’s decision to rezone a property for a shopping 

center development. Though he was an official of the county, 

and not the city, Loftus told an undercover FBI informant that 

obtaining the votes for rezoning “would simply be a matter of 

swapping intergovernmental favors.” Id. at 795. On appeal, 

Loftus argued that he did not accept the money “under color 

of official right” because he lacked official authority over the 

zoning process, and because there was no evidence that the 

development’s sponsors believed that he could cause the 

property to be rezoned. Id. at 796. The Court of Appeals

upheld Loftus’s conviction, stating that, “[a]ctual authority 

over the end result—rezoning—is not controlling if Loftus, 

through his official position, had influence and authority over 

a means to that end.” See also United States v. D’Amico, 496 

F.3d 95, 102 (1st Cir. 2007) (“A reasonable jury thus could 

have concluded that D’Amico explicitly promised . . . that, in 

exchange for the $2,500 payment, he would use his influence 

as a city councilor to pressure the traffic department to pursue 

the road-widening project. This conclusion is sufficient to 

ground a conviction.”); United States v. Bibby, 752 F.2d 

1116, 1128 (6th Cir. 1985); cf. United States v. Blackwood, 

768 F.2d 131, 135-36 (7th Cir. 1985) (sustaining a Hobbs Act 

conviction where “a jury could have found that Agent Ries 

reasonably believed that appellant had the power, through his 

official position and the connections and contacts it gave him 
14

. . . , to influence the judicial decisions in the cases for which 

appellant received bribes.”).4

We agree with the reasoning of our sister courts of 

appeals. There is no doubt that Bencivengo had no actual de 

jure or de facto power over the award of School Board 

insurance contracts; nor is there evidence that Ms. Ljuba 

believed he had such power. However, the record is 

sufficient for a reasonable jury to find that Bencivengo’s 

position as Mayor of Hamilton Township gave him influence

over members of the School Board, and that Ms. Ljuba 

believed that he had such influence. Accordingly, to the 

extent our decision in Mazzei does not reach the particular 

facts of this case, we now hold that where a public official

has, and agrees to wield, influence over a governmental 

decision in exchange for financial gain, or where the official’s 

position could permit such influence, and the victim of an 

extortion scheme reasonably believes that the public official 

wields such influence, that is sufficient to sustain a conviction 

under the Hobbs Act, regardless of whether the official holds 

any de jure or de facto power over the decision. Accordingly, 

 

4 Other circuits have held similarly in the context of other 

federal bribery statutes. See, e.g., United States v. Carson, 

464 F.2d 424, 433 (2d Cir. 1972) (conspiracy to travel in 

interstate commerce to defraud the United States in violation 

of 18 U.S.C.S. § 371) (“There is no doubt that federal bribery 

statutes have been construed to cover any situation in which 

the advice or recommendation of a Government employee 

would be influential, irrespective of the employee’s specific 

authority (or lack of same) to make a binding decision.”); 

United States v. Ring, 706 F.3d 460 (D.C. Cir. 2013) (illegal 

gratuity statute, 18 U.S.C. § 201 et seq.).
15

we reject Bencivengo’s argument that his lack of actual or 

“effective power” over the School Board is fatal to his 

conviction under the Hobbs Act. Similarly, it is enough that 

Ljuba believed that Bencivengo’s position gave him 

influence, and not “effective power,” over the School Board’s 

decision with regard to the insurance contract.

5

 

2. Jury Instructions

Bencivengo’s argument is also foreclosed on another 

ground. Specifically, he failed to object to the Government’s 

proposed jury instructions, which were filed well before trial 

commenced, and which were replete with statements 

indicating that a public official’s agreement to exercise 

influence over a governmental decision (or the victim’s

reasonable belief in the official’s ability to exercise such 

influence) is sufficient to find a violation of the Hobbs Act. 

Bencivengo did not object to the proposed instructions at the 

time they were filed by the Government; nor did he object to 

 

5 Bencivengo argues that the coercion element of Hobbs Act 

extortion cannot be satisfied where the purported victim of 

the extortion scheme (here, Ms. Ljuba) was not threatened or 

coerced in any way. This argument is foreclosed by settled 

precedent. See United States v. Manzo, 636 F.3d 56, 65 (3d 

Cir. 2011) (“In essence, when proceeding under a ‘color of 

official right’ theory, the ‘misuse of a public office is said to 

supply the element of coercion.’”); Mazzei, 521 F.2d at 644 

(in a Hobbs Act prosecution based on an action under color of 

official right, “any element of coercion that may be required 

to establish extortion under the Hobbs Act is supplied by the 

misuse of the defendant’s official power.”). 
16

them at the time they were read to the jury in a form 

substantially identical to what the Government had proposed. 

Where a party fails to object to jury instructions, we 

review whether the instructions stated the correct legal 

standard for plain error. United States v. Elonis, 730 F.3d 

321, 327 n.2 (3d Cir. 2013). While, as noted above, we may

not have confronted the precise situation presented in this 

case, other circuits have consistently held that an agreement 

by a public official to exercise influence over a governmental 

decision, or the victim’s reasonable belief in the official’s 

ability to exercise such influence, is sufficient to support a 

conviction under the Hobbs Act. Indeed, the Government 

cited several of these cases in support of its proposed jury 

instructions. See Gov. Proposed Jury Instructions, at 21 n.15

(citing, inter alia, Loftus and Bibby). As described supra, we 

believe the reasoning of these cases is sound, and indeed 

Bencivengo has failed to point to any contrary precedent. 

Accordingly, we cannot say that the District Court committed 

plain error in accepting the Government’s unopposed 

proposed jury instructions. Moreover, when considered for 

sufficiency of the evidence, the record clearly supports the 

jury’s conviction on the instructions that were given to it.

B. Travel Act

Bencivengo also claims that the District Court erred by 

denying his motion for judgment of acquittal on the Travel 

Act charges because he was not “performing a governmental 

function” when accepting money from Ms. Ljuba in exchange 

for his agreement to exert his influence over the School 

Board. We apply plenary review. Brodie, 403 F.3d at 133.

 
17

A Travel Act violation occurs when an individual 

“travels in interstate . . . commerce or uses the mail or any 

facility in interstate . . . commerce, with intent to (1) 

distribute the proceeds of any unlawful activity; or . . . (3) 

otherwise promote, manage, establish, carry on, or facilitate 

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

any unlawful activity . . . .” 18 U.S.C. § 1952(a)(1), (3). The 

Travel Act includes as an “unlawful activity”, “(2) extortion, 

bribery, or arson in violation of the laws of the State in which 

committed or of the United States . . . .” Here, the 

Government bases its Travel Act charge on Bencivengo’s 

interstate telephone calls with Ms. Ljuba and his causing Ms. 

Ljuba to travel from her home in Delaware to New Jersey to 

violate the New Jersey Bribery in Official and Political 

Matters offense, which provides, in relevant part:

A person is guilty of bribery if he 

. . . solicits, accepts or agrees to 

accept from another:

a. Any benefit as consideration 

for a decision, opinion, 

recommendation, vote or exercise 

of discretion of a public servant, 

party official or voter on any 

public issue or in any public 

election; or

. . . 

c. Any benefit as consideration 

for a violation of an official duty 
18

of a public servant or party 

official . . . .

It is no defense to prosecution 

under this section that a person 

whom the actor sought to 

influence was not qualified to act 

in the desired way whether 

because he had not yet assumed 

office, or lacked jurisdiction, or 

for any other reason.

N.J. Stat. Ann. § 2C:27-2. The statute defines a “public 

servant” as “any officer or employee of government, 

including legislators and judges, and any person participating 

as juror, advisor, consultant or otherwise, in performing a 

governmental function . . . .” N.J. Stat. Ann. § 2C:27-1(g).

Bencivengo’s claim that he cannot be convicted under 

the statute because he was not “performing a governmental 

function” in putting pressure on School Board members 

essentially amounts to a rehashing of his argument that he did 

not have any actual power over the award of School Board 

insurance contracts.

6

 The argument is even less compelling 

 

6

The Government argues that the phrase “performing a 

governmental function” modifies the phrase “any person 

participating as a juror, advisor, consultant, or otherwise,” 

and does not limit the activities of “public servant[s]” or 

“officer[s] or employee[s] of government.” See Gov. Br. 41. 

The Government is likely correct, and in any case, it is clear 

that Bencivengo was attempting to influence a “governmental 

function.” 
19

here, where the state statute makes clear that the lack of 

actual jurisdiction over the decision is no defense to the 

crime. See, e.g., State v. Schenkolewski, 693 A.2d 1173 (N.J. 

Super. Ct. App. Div. 1997) (“[I]t is sufficient if the recipient 

created the understanding with the briber that he could 

influence matters in connection with an official duty, whether 

or not he was capable of actually effecting such an action.”); 

State v. Sherwin, 317 A.2d 414, 422 (N.J. Super. Ct. App. 

Div. 1974) (affirming conviction under predecessor bribery 

statute where Secretary of State had accepted a bribe from a 

contractor in return for urging the Secretary of Transportation 

to reject the lowest bid on a road project and to reopen 

bidding).

7

 Accordingly, we reject Bencivengo’s claim that 

his Travel Act conviction must be reversed because he was 

not “performing a governmental function” when accepting 

bribes from Ms. Ljuba. 

 

7 Bencivengo relies on United States v. Dansker, 537 F.2d 40 

(3d Cir. 1976), where we reversed a Travel Act conviction 

based on the predecessor to the current New Jersey bribery 

statute, on the ground that the government had failed to show 

that the defendant had any actual or apparent influence over 

any official decisions regarding a commercial development 

project, or that the alleged bribers believed he had such 

influence. In Dansker, unlike in the present case, it was

unclear from the record whether the developers were even 

aware that the defendant held an official position. Id. at 49-

50. Here on the other hand, it is clear that Ms. Ljuba at least 

believed that Bencivengo had influence over the School 

Board, and there is no question that she knew Bencivengo 

was the Mayor. Accordingly, Bencivengo’s reliance on 

Dansker is misplaced.
20

C. Double Jeopardy

Bencivengo argues that his convictions for Hobbs Act 

extortion and Travel Act bribery are multiplicitous because 

they were based on essentially the same conduct on his part, 

and therefore violate the Double Jeopardy Clause of the Fifth 

Amendment. Because Bencivengo did not object on this 

basis in the proceedings below, we review for plain error. 

United States v. Miller, 527 F.3d 54, 60 (3d Cir. 2006). 

“Where the same act or transaction constitutes a 

violation of two distinct statutory provisions, the test to be 

applied to determine whether there are two offenses or only 

one, is whether each provision requires proof of a fact which 

the other does not.” Blockburger v. United States, 284 U.S. 

299 (1932). The Government correctly points out that the 

Travel Act requires the Government to prove that the 

defendant traveled (or caused someone to travel) in interstate 

commerce, or used the mail or any facility in interstate

commerce, whereas a Hobbs Act violation occurs if the 

defendant “obstructs, delays, or affects commerce or the 

movement of any article or commodity in commerce.” The 

Hobbs Act does not require proof of interstate travel or the 

use of the mail or any other interstate facility, while the 

Travel Act does not require proof of extortion that affects 

interstate commerce. Rather, by its terms, the Travel Act 

would theoretically apply if an individual travelled across 

state lines in order to commit a purely intrastate act of 

extortion or bribery.8 

 

8

It is true that some courts have found that a defendant’s act 

of crossing state lines to commit a crime is relevant to the 
21

Indeed, several courts of appeals, including our own, 

have upheld convictions under both the Hobbs Act and Travel 

Act based on the same conduct. See, e.g., United States v. 

Somers, 496 F.2d 723 (3d Cir. 1974); United States v. 

Bornscheuer, 563 F.3d 1228 (11th Cir. 2009); United States 

v. Millet, 123 F.3d 268 (5th Cir. 1997); United States v. 

Shields, 999 F.2d 1090 (7th Cir. 1993); United States v. 

Hollis, 725 F.2d 377 (6th Cir. 1984); United States v. Walsh, 

700 F.2d 846 (2d Cir. 1983); United States v. Billups, 692 

F.2d 320 (4th Cir. 1982); United States v. Hathaway, 534 

F.2d 386, 397 (1st Cir. 1976). And we are unaware of any 

cases in which a court has found that a defendant may not be 

prosecuted under both the Hobbs Act and Travel Act for the 

same conduct. Accordingly, it cannot be said that the District 

Court’s failure to sua sponte raise and sustain a Double 

Jeopardy challenge to Bencivengo’s convictions under the 

Hobbs Act and Travel Act was plain error. 

D. Conduct of the Trial Judge

Bencivengo maintains that the District Court denied 

him a fair trial by interrupting defense counsel’s cross-

 

Hobbs Act jurisdictional analysis. However, these courts 

have typically been careful to note that such interstate travel 

does not, by itself, suffice to establish jurisdiction under the 

Hobbs Act, which still requires a de minimis effect on 

interstate commerce. See, e.g., United States v. Le, 256 F.3d 

1229, 1237 (11th Cir. 2001); United States v. Kaplan, 171 

F.3d 1351, 1356 (11th Cir. 1999). 
22

examination of Ms. Ljuba, chastising him in the presence of 

the jury, and criticizing him for asking questions that, 

according to the District Judge, were compound or otherwise 

unclear. We employ the plain error standard with respect to 

Bencivengo’s arguments regarding the conduct of the District 

Judge, as no objection was lodged at trial. United States v. 

Nobel, 696 F.2d 231, 237 (3d Cir. 1982). 

The Supreme Court has described the high bar a 

litigant must meet to demonstrate that the conduct of the trial 

judge has prejudiced the trial against him. In Liteky v. United 

States, 510 U.S. 540, 555-56 (1994), the Court stated that:

[J]udicial remarks during the 

course of a trial that are critical or 

disapproving of, or even hostile 

to, counsel, the parties, or their 

cases, ordinarily do not support a 

bias or partiality challenge. They 

may do so if they reveal an 

opinion that derives from an 

extrajudicial source; and they will

do so if they reveal such a high 

degree of favoritism or 

antagonism as to make fair 

judgment impossible. . . . Not

establishing bias or partiality, 

however, are expressions of 

impatience, dissatisfaction, 

annoyance, and even anger, that 

are within the bounds of what 

imperfect men and women, even 

after having been confirmed as 
23

federal judges, sometimes display. 

A judge’s ordinary efforts at 

courtroom administration—even a

stern and short-tempered judge’s 

ordinary efforts at courtroom 

administration—remain immune.

However high the bar, the judge may not assume an advocacy 

role or make it “‘clear to the jury that the court believes the 

accused is guilty.’” United States v. Beaty, 722 F.2d 1090, 

1093 (3d Cir. 1985) (quoting Nobel, 696 F.2d 237); see also 

United States v. Wilensky, 757 F.2d 594, 598 (3d Cir. 1985) 

(“By assuming the roles of judge, attorney, and witness in the 

same proceeding the trial judge abandons the impartiality 

with which he is charged.”). See, e.g., Reserve Mining Co. v. 

Lord, 529 F.2d 181 (8th Cir. 1976) (reversing where the trial 

judge conducted extensive examination of witnesses, 

commented on evidence and on the credibility of defense 

witnesses, and criticized the ability of plaintiff’s counsel); 

Lyle v. Renico, 470 F.3d 1177, 1180-81 (6th Cir. 2006); 

United States v. Dellinger, 472 F.2d 340 (7th Cir. 1972). 

Examining the record as a whole, we cannot say that 

the District Judge’s actions were improper. The District 

Judge did not conduct any examination of defense counsel or

cross-examine any defense witnesses. Nor did the District 

Judge lead Ms. Ljuba or express an opinion on any evidence 

presented by the defense. The most that can be said is that 

the District Judge admonished defense counsel on several 

occasions to clarify questions that perhaps did not need to be 

clarified, as they were clearly understood by Ms. Ljuba. See 

United States v. Hynes, 467 F.3d 951 (6th Cir. 2006) (no 

reversible error where the district judge, among other things, 
24

“interrupted defense counsel to ask him to clarify his 

questions, to avoid an argumentative tone with a witness, 

[and] to proceed to a different topic because the one in 

question had been exhausted . . . .”). In addition, the District 

Judge twice reminded the jury that it was not to draw any 

inference from her comments as to whether the Court held 

any opinion as to Bencivengo’s guilt. (Supp. App. 615-16, 

629.) See United States v. Ottaviano, 738 F.3d 586, 596 (3d 

Cir. 2013) (noting the relevance of curative instructions in 

determining whether the court’s remarks prejudiced the 

defendant); United States v. Price, 13 F.3d 711, 723-24 (3d 

Cir. 1994) (finding no reversible error where “there [was] no 

suggestion . . . that the judge inappropriately participated in 

the questioning of witnesses” and where “the judge charged 

the jury that they were not to rely on their perception of his 

beliefs.”). We conclude that the District Judge’s conduct did

not constitute reversible error.9 

III. Conclusion

For the reasons stated above, we will affirm the 

judgment of the District Court in all respects. 

 

9 Moreover, even if a trial judge’s conduct is improper, it may 

still constitute harmless error where the evidence adduced at

trial is so overwhelming that the trial judge’s behavior was 

immaterial to the jury’s conclusion. See Ottaviano, 738 F.3d 

at 597-98; Wilensky, 757 F.2d at 598 (noting that the judge’s 

conduct was harmless when considered in light of the 

“overwhelming testimony” presented by the government). 

Here, the evidence of guilt was overwhelming, and indeed 

Bencivengo does not even dispute the key facts underlying 

his convictions.