NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 10-4567

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UNITED STATES OF AMERICA

v.

DANIEL VAN PELT,

 Appellant

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On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 09-cr-00912)

District Judge: Honorable Joel A. Pisano

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Argued September 21, 2011

Before: FISHER, HARDIMAN and GREENAWAY, JR., Circuit Judges.

(Filed: October 18, 2011)

Steven G. Sanders [Argued]

Mark E. Coyne

Office of United States Attorney

970 Broad Street, Room 700

Newark, NJ 07102-0000

Attorneys for Plaintiff-Appellee

Robert E. Margulies [Argued]

Margulies Wind

3 Second Street

Plaza 10, Suite 1201

Harborside Financial Center

Jersey City, NJ 07311

Attorneys for Defendant-Appellant
2

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OPINION OF THE COURT

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HARDIMAN, Circuit Judge.

Daniel Van Pelt appeals his judgment of conviction and sentence following a jury 

trial. We will affirm.

I

Because we write for the parties, we recount only the essential facts and 

procedural history. We review the facts in the light most favorable to the Government, as 

the verdict winner. United States v. Hoffecker, 530 F.3d 137, 146 (3d Cir. 2008) (citing 

United States v. Wood, 486 F.3d 781, 783 (3d Cir. 2007)).

Van Pelt was indicted for attempted extortion under color of official right in 

violation of 18 U.S.C. § 1951(a) and federal program bribery in violation of 18 U.S.C. § 

666(a)(1)(B). He was convicted on both counts after an eight-day jury trial, and the 

District Court sentenced him to 41 months imprisonment.

Van Pelt held two elected offices over the course of his career in state government. 

He was a committeeman on the Ocean Township Committee from 1998 until he resigned 

from the post on February 28, 2009. (J.A. 696–97.) He was also an assemblyman for the 

State of New Jersey from 2008 until he relinquished the position following his arrest in 

July 2009. (J.A. 862, 868–69.) In his role as a state legislator, Van Pelt served on a 
3

committee that oversees the New Jersey Department of Environmental Protection (DEP). 

The DEP is charged with, among other things, enforcing the Coastal Area Facilities 

Review Act (CAFRA), which requires new developments to meet certain environmental 

standards. As a committeeman, Van Pelt sought developers who were interested in 

building developments in the township.

The evidence at trial showed that on at least six occasions between December 

2008 and May 2009, Van Pelt met with Solomon Dwek, who agreed to cooperate with 

the Government‟s efforts to ferret out corruption after he pleaded guilty to bank fraud and 

money laundering. Dwek and Van Pelt also exchanged emails and telephone calls. 

Dwek, under the alias “David Esenbach,” found Van Pelt after bribing another New 

Jersey official to obtain an introduction. Dwek posed as a real estate developer interested 

in a site in Waretown, an unincorporated area within Ocean Township. Throughout their 

many recorded conversations, Dwek and Van Pelt, using euphemisms and allusions, 

agreed that, in exchange for money, Van Pelt would assist Dwek both in obtaining 

expedited CAFRA review and in presenting his development proposal to the township 

committee in charge of selecting a developer for the site.1 Dwek testified that these 

conversations constituted a scheme to exchange money for official assistance in the 

development process. Van Pelt, on the other hand, testified that the conversations set up 

 

1

It appears CAFRA approval of the site was not necessary because it had been 

designated as a “center.” But Van Pelt led Dwek to believe that CAFRA review would 

be problematic and that he had the power to expedite the process.
4

a legally permissible “consulting” arrangement whereby he would assist Dwek after he 

resigned from the local committee. On February 21, 2009, Van Pelt accepted an 

envelope from Dwek containing $10,000 in cash at a restaurant in Atlantic City.

II

The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have 

jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291. Van Pelt concedes, as 

he must, that we review for plain error because he did not object at trial to any of the 

issues he presents on appeal. See Fed. R. Crim. P. 52(b). To meet this standard, Van Pelt 

must show: (1) error, (2) that was “clear or obvious,” (3) that “affected [his] substantial 

rights,” and (4) that “„seriously affect[s] the fairness, integrity or public reputation of 

judicial proceedings.‟” Puckett v. United States, 129 S. Ct. 1423, 1429 (2009) (last 

alteration in original) (quoting United States v. Olano, 507 U.S. 725, 736 (1993)). The 

decision whether to correct a plain error that satisfies the first three prongs of the standard 

is discretionary, while the fourth prong is used to guide the exercise of that discretion. Id.

A

Van Pelt first argues that the jury instruction on the bribery count was defective 

because it did not require a connection between the thing given and an official act 

performed by the bribed official. The jury charge stated:

In order to find the defendant guilty of this offense, count two, 

bribery, you must find that the Government proved each of the following 

five elements beyond a reasonable doubt: First, that at the time alleged in 

the indictment, the defendant was an agent of the State of New Jersey; 
5

second, that the State of New Jersey was a state Government and that it 

received federal benefits in excess of $10,000 in a one-year period; third, 

that the defendant agreed to accept or accepted something of value from the 

cooperating witness; fourth, that the defendant acted knowingly, willfully 

and corruptly with the intent to be influenced or rewarded in connection 

with the business, a transaction or a series of transactions of the State of 

New Jersey; fifth, that the value of the business, transaction or series of 

transactions to which the payment related was at least $5,000.

(J.A. 1139.) The District Court also explained each element in greater detail and defined 

what it means to “act corruptly.”

We are not persuaded that the District Court erred. “We review jury instructions 

as a whole and in light of the evidence.” United States v. Petersen, 622 F.3d 196, 203 

(3d Cir. 2010). In addition, “a district court has broad discretion in fashioning a jury 

charge as long as it communicates „the substance of the law‟ so the jury is not misled or 

confused.” Id. (quoting United States v. McGill, 964 F.2d 222, 235 (3d Cir. 1992)).

Van Pelt essentially asserts that the District Court was required to use the words 

“in exchange for” or “quid pro quo” in charging the jury on count two. Even if he is 

correct that the notion of a quid pro quo is an element of the offense,2our case law does 

 

2 Van Pelt relies on United States v. Cicco, 938 F.2d 441 (3d Cir. 1991), United 

States v. Kemp, 500 F.3d 257 (3d Cir. 2007), and United States v. Sun-Diamond Growers

of California, 526 U.S. 398 (1999), for the proposition that § 666 requires a quid pro quo. 

Cicco used “quid pro quo” only in passing, 938 F.2d at 444 (“We begin by 

acknowledging that a solicitation of specific election day services with municipal 

employment as the quid pro quo, might come within the literal language of § 666.”), and 

when read carefully supports only the proposition that a quid pro quo is sufficient, as 

opposed to necessary, to lead to a bribery conviction. See United States v. Gee, 432 F.3d 

713, 714 (7th Cir. 2005). Sun-Diamond and Kemp are distinguishable because those 
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not require that such a phrase be included verbatim in the charge. See United States v. 

Bryant, --- F.3d ----, 2011 WL 3715811, at *10 & n.16 (3d Cir. Aug. 25, 2011) (“The 

Government argues that § 666 does not require proof of a quid pro quo in any event. 

Because we believe that the instruction did require the jury to find an exchange, we need 

not decide that question today.”). The charge here adequately conveys the necessity of a 

link between the thing accepted by Van Pelt and the government business sought to be 

influenced, and in more ways than one.3 The District Court told the jury that Van Pelt 

must have intended to be influenced “corruptly” and “in connection with” the state‟s 

business. The additional discussion of the fourth element of the offense makes clear that 

corrupt actions include those that “accomplish[] some otherwise lawful end or lawful 

result, influenced by the receipt of the thing of value.” (J.A. 1141–42 (emphasis added).) 

Assuming arguendo that § 666 requires a quid pro quo, we find no error in the District 

 

courts considered a different bribery statute, 18 U.S.C. § 201. See infra note 3. The 

question of the quid pro quo requirement remains an open one in this circuit.

3 We note that an official act need not actually be executed under the statute. 

Unlike many bribery prosecutions under 18 U.S.C. § 201(b), no “official act” is required 

under § 666. See generally United States v. Abbey, 560 F.3d 513, 521 (6th Cir. 2009) 

(“[N]either § 666 nor the Hobbs Act contains the „official act‟ language that the 

[Supreme] Court found „pregnant with the requirement that some particular official act be 

identified and proved.‟” (quoting Sun-Diamond, 526 U.S. at 406)). To be bribed, the 

government official need only “accept[] or agree[] to accept[] anything of value . . . 

intending to be influenced or rewarded in connection with any business . . . of such . . . 

government . . . involving any thing of value of $5,000 or more . . . .” 18 U.S.C. § 

666(a)(1)(B). Thus, Van Pelt‟s argument that he did not take any action on behalf of 

Dwek is unavailing.
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Court‟s instruction because it required the jury to find that Van Pelt was “influenced” by 

or “rewarded” with a payment in connection with New Jersey‟s business.

Even if the District Court erred, it is a logical impossibility that such error was 

“clear or obvious.” Our sister circuits have split over the question of whether § 666 

requires a quid pro quo. Compare United States v. Redzic, 627 F.3d 683, 692 (8th Cir. 

2010) (requiring a quid pro quo), and United States v. Ganim, 510 F.3d 134, 148–51 (2d 

Cir. 2007) (same, on plain-error review), and United States v. Jennings, 160 F.3d 1006, 

1020–22 (4th Cir. 1998) (finding plain error but affirming the conviction where the jury 

instruction omitted a quid pro quo element), with United States v. McNair, 605 F.3d 

1152, 1187–88 (11th Cir. 2010) (no quid pro quo required), and United States v. Abbey, 

560 F.3d 513, 520–21 (6th Cir. 2009) (same), and United States v. Gee, 432 F.3d 713, 

714–15 (7th Cir. 2005) (same). Because we have not yet decided the question, it 

necessarily follows that there can be no plain error. And Van Pelt‟s failure to raise the 

issue in the District Court makes this case an unsuitable occasion for us to decide on 

which side of the circuit split we fall.

B

Van Pelt‟s second ground for reversal urges us to construe § 666 narrowly so as to 

avoid reaching officials who do not control government funds. This argument, like his 

final one, contends that the statute is unconstitutional as applied to his conduct. We 

disagree for two reasons, one factual and the other legal. First, as a state legislator who 
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voted on the budget, Van Pelt had control of New Jersey funds.4 Second, the statute by 

its terms requires only that the Government prove that Van Pelt was “an agent of an 

organization, or of a State, local, or Indian tribal government” at the time he accepted the 

bribe. 18 U.S.C § 666(a)(1). The statute defines “agent,” but that definition does not 

include a “control” element. 18 U.S.C. § 666(d)(1); see United States v. Vitillo, 490 F.3d 

314, 323 (3d Cir. 2007) (“Because § 666(d)(1) does not define an „agent‟ as someone 

who necessarily controls federal funds, we conclude that the [defendant‟s] argument 

fails.”). Moreover, the Supreme Court has rejected the contention that the bribe must 

have affected particular funds in any particular way in order for the statute to 

constitutionally proscribe it. See Sabri v. United States, 541 U.S. 600, 605–07 (2004);

Salinas v. United States, 522 U.S. 52, 56–60 (1997). Accordingly, we find no error, 

much less plain error, in Van Pelt‟s conviction on this basis.

C

Finally, Van Pelt questions the reach of federal jurisdiction with respect to both 

crimes of conviction, focusing on the fact that he attempted to extort and accepted a bribe 

from a cooperating witness pitching a fictitious scheme at the Government‟s behest. That 

is, he claims that federal interests are not implicated by his susceptibility to a fictitious 

scheme that could have no impact on federal interests.

 

4

Evidence introduced at trial showed that New Jersey receives more than $10,000 

from the federal government each year as required by 18 U.S.C. § 666(b), and that the 

State Assembly votes on the budget.
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We have rejected this argument with respect to the extortion conviction under the 

Hobbs Act and we do so again here. See United States v. Jannotti, 673 F.2d 578 (3d Cir. 

1982) (en banc). In Jannotti, after the jury returned guilty verdicts, the district court 

granted motions for acquittal, and dismissed the Hobbs Act count of the indictment “for 

lack of jurisdiction,” in part because of “the fictitious nature of the scheme.” 673 F.2d at 

580–81, 590. We rejected this “impossibility defense” unequivocally. Id. at 590–94; see 

United States v. Manzo, 636 F.3d 56, 61 n.4 (3d Cir. 2011); see also United States v. 

Urban, 404 F.3d 754, 766 (3d Cir. 2005) (holding that only a de minimis effect on 

interstate commerce is needed to sustain a Hobbs Act conviction).

The challenge to Van Pelt‟s bribery conviction fails for analogous reasons. Courts 

have long held that a defendant may be subject to criminal liability where, if the facts 

were as he thought them to be, a crime would have been committed. See, e.g., United 

States v. Everett, 700 F.2d 900, 903–08 (3d Cir. 1983) (finding that Congress intended to 

eliminate the defense of impossibility by passing the Comprehensive Drug Abuse 

Prevention and Control Act); Jannotti, 673 F.2d at 591–92 (citing cases that rejected an 

impossibility defense). An impossibility defense is no more successful when directed to 

the federal jurisdictional element of the offense. See Jannotti, 673 F.2d at 593 

(“[D]efendants‟ plan to transport the goods interstate, even though unattainable from the 

outset, sufficiently impinged on an area of federal concern to justify federal regulation 

and prohibition.” (discussing United States v. Rose, 590 F.2d 232, 235 (7th Cir. 1978))). 
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State officials who are susceptible to accept bribes in “sting” operations jeopardize the 

security of federal funds to an extent sufficient to criminalize such bribery. See id. at 592 

(“Congress can constitutionally reach inchoate offenses because these offenses pose a 

potential threat to interstate commerce; the existence of such a threat ties „the proscribed 

conduct to the area of federal concern delineated by the statute.‟” (quoting United States 

v. Feola, 420 U.S. 671, 695 (1975))).5 Moreover, Van Pelt‟s crime was not inchoate: the 

bribery was complete when he accepted a bribe with the intent to be influenced. Thus, 

we reject Van Pelt‟s claim that the jurisdictional element of his bribery conviction was in 

any way contrived because he accepted a bribe with respect to a development project that 

never existed.

III

For the foregoing reasons, we will affirm the judgment of the District Court.

 

5

Even though Jannotti was concerned with the Hobbs Act, which receives its 

constitutional sanction from the Commerce Clause, and § 666 is founded on the Spending 

and Necessary and Proper Clauses, see Sabri, 541 U.S. at 605, the logic of Jannotti is 

easily extended. Where there is a constitutionally valid federal interest, Congress may 

proscribe conduct that raises a “mere” indirect threat to that interest.