United States v. Halloran, 102016 FED2, 15-2351(L)

• Party Name: United States of America, Appellee, v. Daniel J. Halloran, Joseph J. Savino, Joseph Desmaret, Noramie Jasmin, Defendants, Vincent Tabone, Malcolm A. Smith, Defendants-Appellants.
• Attorney: For Defendants-Appellants: Eric Nelson, Staten Island, New York, for Vincent Tabone. Marc Fernich, New York, New York, for Malcolm A. Smith. For Appellee: Hagan Scotten, (Karl Metzner, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York.
• Judge Panel: PRESENT: Jon O. Newman, Gerard E. Lynch, Christopher F. Droney Circuit Judges,
• Case Date: October 20, 2016
• Court: United States Courts of Appeals, U.S. Court of Appeals — Second Circuit

United States of America, Appellee,

v.

Daniel J. Halloran, Joseph J. Savino, Joseph Desmaret, Noramie Jasmin, Defendants,

Vincent Tabone, Malcolm A. Smith, Defendants-Appellants.

No. 15-2351(L), 15-2433(Con)

United States Court of Appeals, Second Circuit

October 20, 2016

UNPUBLISHED OPINION

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 20^th day of October, two thousand sixteen.

Appeal from July 17, 2015 and July 30, 2015 judgments of the United States District Court for the Southern District of New York (Karas, J.).

For Defendants-Appellants: Eric Nelson, Staten Island, New York, for Vincent Tabone. Marc Fernich, New York, New York, for Malcolm A. Smith.

For Appellee: Hagan Scotten, (Karl Metzner, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York.

PRESENT: Jon O. Newman, Gerard E. Lynch, Christopher F. Droney Circuit Judges,

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgments of the district court are AFFIRMED.

Defendants Vincent Tabone and Malcolm A. Smith appeal their convictions and sentences of 42 months' and 84 months' incarceration. Their sentences were imposed following a jury verdict of guilty on: (1) conspiracy-under 18 U.S.C. § 371-to commit bribery, in violation of the Travel Act, and honest services wire fraud; (2) honest services wire fraud and attempt to commit honest services wire fraud, in violation of 18 U.S.C. §§ 1343, 1346, 1349, and 2; (3) Travel Act violations, under 18 U.S.C. §§ 1952(a)(3); (4) Hobbs Act extortion charges against Smith, under 18 U.S.C. § 1951; and (5) witness tampering charges against Tabone, under 18 U.S.C. § 1512. These charges were in connection with allegations that Smith bribed several New York City Republican Party officials-including Tabone-in an attempt to receive the "Wilson-Pakula Certificates"¹necessary to seek the Republican nomination for Mayor of New York City. Tabone and Smith challenge their convictions. They claim that both the applicable New York bribery laws and the honest services fraud statute are unconstitutionally vague. They also argue that the Travel Act and honest services fraud prosecutions violate principles of federalism. In addition, Tabone challenges the sufficiency of the evidence supporting his honest services fraud and witness-tampering convictions, while Smith challenges the sufficiency of the evidence supporting his Hobbs Act conviction. We assume the parties' familiarity with the underlying facts and procedural history of this case.

1. New York Penal Law §§ 200.45 and 200.50 Vagueness

The Travel Act punishes individuals for using interstate or foreign commerce to further unlawful activity. 18 U.S.C. § 1952(a). "Unlawful activity" includes "bribery . . . in violation of the laws of the State in which committed or of the United States." Id. § 1952(b)(2). The defendants' Travel Act charges were premised on use of interstate commerce to commit bribery in violation of New York Penal Law §§ 200.45 and 200.50. Defendants challenge those state laws as unconstitutionally vague.

Section 200.45 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. Section 200.50 prohibits "[a] public servant or party officer" from "solicit[ing], accept[ing], or agree[ing] to accept any money or property from another person" based upon such an agreement or understanding. N.Y. Penal Law § 200.50. The term "party officer" is defined as "a person who holds any position or office in a political party, whether by election, appointment, or otherwise." N.Y. Penal Law § 200.40.

This Court previously addressed a virtually identical vagueness challenge made by Daniel J. Halloran, who was convicted as part of the same Wilson-Pakula scheme. We rejected Halloran's challenge, ruling that "§§ 200.45 and 200.50 prohibit the conduct constituting the Wilson-Pakula Scheme under any plausible reading of those statutes." United States v. Halloran, 821 F.3d 321, 337 (2d Cir. 2016). We therefore reject the defendants' argument.

2. Honest Services Fraud Vagueness

The wire fraud statute prohibits use of interstate wires by one who has "devised or intend[ed] to devise any scheme or artifice to defraud, or for obtaining money or property by false or fraudulent pretense, representations, or promises." 18 U.S.C. § 1343. Section 1346 defines "scheme or artifice to defraud" to include "a scheme or artifice to deprive another of the intangible right of honest services." Id. § 1346. The defendants challenge the statute as unconstitutionally vague. We reject that contention.

In Skilling v. United States, 561 U.S. 358 (2010), the Supreme Court addressed a vagueness challenge to the honest services fraud statute. In order to "preserve the statute without transgressing constitutional limitations, " the Court held that "§ 1346 criminalizes only the bribe-and-kickback core" of its arguable statutory reach. Id. at 408-09. Given that definition, "[a] criminal defendant who participated in a bribery or kickback scheme . . . cannot tenably complain about prosecution under § 1346 on vagueness grounds." Id. at 413. The Wilson-Pakula bribery scheme clearly falls within this definition, and therefore the defendants' vagueness challenge fails. See Halloran, 821 F.3d at 337-40 (rejecting a vagueness challenge to § 1346, as applied to this Wilson-Pakula scheme, despite defendant's argument that § 1346 fails to specify the source of the fiduciary duty a defendant must breach).²

3. Federalism

The defendants also contend that their Travel Act and honest services fraud prosecutions violate "principles of federalism." We reject these challenges as well.

When an interpretation of a federal criminal statute "would dramatically intrude upon traditional state criminal jurisdiction, " we avoid reading the statute to have such reach unless there is a "clear indication" that it does. Bond v. United States, 134 S.Ct. 2077, 2088 (2014) (internal quotation marks and alterations omitted). Even assuming arguendo that applying § 1346 to the Wilson-Pakula scheme would somehow intrude upon traditional state criminal jurisdiction, the defendants' challenge fails. In Skilling, the Supreme Court stated that it is "plain as a pikestaff that bribes and kickbacks constitute honest-services fraud." 561 U.S. at 412. Thus, there is a clear indication that § 1346 reaches the Wilson-Pakula bribery scheme.

Smith's federalism challenge to his Travel Act prosecution also fails. Smith provides no legal support for the proposition that prosecution under the Travel Act for a state law crime violates principles of federalism. He rests his argument on New York's supposed "hands-off policy" towards prosecuting Wilson-Pakula conduct under §§ 200.45 and 200.50. However, even if such a challenge were appropriate, Smith has provided no concrete evidence-beyond mere speculation and supposition-that New York prosecutors have affirmatively declined to prosecute Wilson-Pakula schemes. See Halloran, 821 F.3d at 335 ("The fact that this may be the first time that a scheme to buy a...