662 F.3d 610 (2nd Cir. 2011), 08-3327-cr, United States v. Bahel

Docket Nº:Docket 08-3327-cr.
Citation:662 F.3d 610
Opinion Judge:POOLER, Circuit Judge.
Party Name:UNITED STATES, Appellee, v. Sanjaya BAHEL, Defendant-Appellant.[*]
Attorney:Henry E. Mazurek, Clayman & Rosenberg LLP, New York, NY, for Defendant-Appellant. Brent S. Wible (Daniel A. Braun, Alexander J. Willscher, of counsel), Assistant United States Attorneys, for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for Appellee.
Judge Panel:Before: POOLER and RAGGI, Circuit Judges, and KORMAN, District Judge.[**]
Case Date:October 26, 2011
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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662 F.3d 610 (2nd Cir. 2011)

UNITED STATES, Appellee,

v.

Sanjaya BAHEL, Defendant-Appellant. [*]

Docket No. 08-3327-cr.

United States Court of Appeals, Second Circuit

October 26, 2011

Argued: July 8, 2009, and Jan. 13, 2011.

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Henry E. Mazurek, Clayman & Rosenberg LLP, New York, NY, for Defendant-Appellant.

Brent S. Wible (Daniel A. Braun, Alexander J. Willscher, of counsel), Assistant United States Attorneys, for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for Appellee.

Before: POOLER and RAGGI, Circuit Judges, and KORMAN, District Judge.[**]

POOLER, Circuit Judge.

This is an appeal from a judgment of conviction entered in the United States District Court for the Southern District of New York (Griesa, J. ), convicting Appellant Sanjaya Bahel of four counts of use of the mail or wires in furtherance of fraud that deprived the United Nations, his former employer, of its intangible right to his honest services in violation of 18 U.S.C. §§ 1341, 1343, 1346; one count of corrupt receipt of things of value with intent to be rewarded with respect to official business in violation of 18 U.S.C. § 666; and one count of conspiracy in violation of 18 U.S.C. § 371. We hold that the United Nations expressly waived Bahel's immunity, and even if it had not, Bahel himself waived any claim of immunity by failing to raise the issue until the trial was complete. We also hold that the United Nations Participation Act, which authorizes the payment of the United States' dues to the United Nations (" U.N." ), is both a " federal program" and a " benefit" within the meaning

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of Section 666, which encompasses bribes as well as illegal gratuities. We further hold Section 1346 is broad enough to encompass honest services fraud committed by a foreign worker at the U.N., that Bahel was properly sentenced as a " public official" under the Sentencing Guidelines Section 2C1.1, and that the district court committed no error in ordering Bahel to pay restitution in the form of remitting a portion of his salary at the U.N., which amounted to what Bahel was paid during the time he was suspended pending investigation of the conduct underlying his conviction. For the following reasons, the judgment of conviction is affirmed.

BACKGROUND

The following facts are drawn from the evidence presented at trial, and are presented in the light most favorable to the government. See United States v. Ivezaj, 568 F.3d 88, 90 (2d Cir.2009).

Sanjaya Bahel served as a Chief of the Commodity Procurement Section within the U.N.'s Procurement Division from 1998 to 2003. Beginning around 1999, Nanak Kohli, a long time friend of Bahel's, began to seek business as a supplier to the U.N., with the assistance of his sons, Nishan and Ranjit. 1 As a section chief for the U.N. Procurement Division, Bahel assisted the Kohlis in their efforts to secure contracts as a U.N. supplier. In connection with the prosecution of Bahel, Nishan Kohli, an indicted coconspirator, became a cooperating witness for the government and the primary source of information regarding Bahel's activities on behalf of the Kohli family.2

Bahel's work performance was subject to a variety of U.N. rules, which inform the contours of the duty Bahel owed to his employer. These included (1) an obligation to discharge his job duties with impartiality; (2) to work in the U.N.'s interests; (3) to avoid using his U.N. position for gain; (4) to obtain approval from the Secretary General for gifts; (5) not to have an association with an entity seeking U.N. business; and (6) to disclose any conflicts of interest or be recused in such circumstances. The Government offered evidence at trial to show that Bahel violated these requirements, and by extension, certain federal statutes by providing the Kohli family with inside information on the bidding process for contracts; convincing U.N. employees that the Kohli companies' bids did not raise concerns; counseling the Kohlis on how to win contracts; and assisting in the preparation of documentation to the U.N., without disclosing to the U.N. Bahel's long-term friendship with the Kohlis or the financial benefits that the Kohlis provided to Bahel during the period that his assistance was given.

The Government focused on three U.N. contracts at trial: (1) a 1999 " digital trunking contract" ; (2) a 2000 " communications and information technology manpower contract" ; and (3) a 2002 " engineering manpower contract." First, in 1999, the Kohli family's company, TCIL, bid for the 1999 digital trunking contract, but was found technically non-compliant. In response, Bahel insisted that Peacekeeping officials hold tutorials with TCIL, which had provided the lowest bid, to see if it was possible to overcome technical deficiencies. When officials determined the technical

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flaws could not be rectified, Bahel sent a letter objecting to the determination. At trial, one official testified that " [i]t did appear to [him] and others within [his] section at the time that [Bahel's] involvement happened on a more regular basis with cases related to TCIL."

Next, in 2000, TCIL won a $30 million contract for manpower support, although the company had no experience in that area. When Peacekeeping learned that TCIL was not providing the Mission Subsistence Allowance (" MSA" ) stipend to its employees, Peacekeeping sought to cancel the contract. Bahel intervened. He had conversations with the Kohlis, during which they discussed having workers sign letters of satisfaction stating that they had received the MSA or its equivalent. Bahel, along with Nanak Kohli, then met with members of the U.N.'s Office of Legal Affairs. During that meeting, Bahel never disclosed that he and Nanak were " old friends" or that the two previously had " private conversations" regarding the contract. Indeed, Bahel never told the other meeting participants that he " knew [Nanak] in any capacity other than an official one." Thus, the U.N. employees at the meeting believed that Bahel was " acting on behalf of the United Nations" insofar as he was negotiating at the meeting. The product of the meeting was that TCIL and the U.N. eventually agreed that these letters were sufficient to avoid cancellation of the contract. Nishan Kohli would later testify that this resolution did little more than maintain the status quo, because, pursuant to the plan the Kohlis negotiated with Bahel, TCIL " put a lot of pressure on the workers" to sign the letters, by " explain[ing] to them that if they continued to complain the contract could be canceled and they would all be without jobs." TCIL also threatened to " encash" the $2,000 " security deposit" required of all workers, " if they didn't cooperate."

Finally, in 2002, Peacekeeping asked the U.N. to provide engineers for its missions around the world. Nishan testified that his family learned of this request from Bahel more than a month before it was published on the U.N. website. He also testified that Bahel " notified [the Kohlis] that it was coming ... and that [they] should prepare for it." Nishan testified that this information was beneficial because the Kohli family's new company, Thunderbird, " had not actually registered with the UN so [they] had to go through that process which would take a bit of time." Nishan further testified that " in general early notification was helpful to [them] because [they] weren't really qualified or prepared to ultimately respond to this kind of requirement, so any additional time that [they] could get was helpful." In order to get Thunderbird registered, Nishan stated that " [i]t was [their] intention ... to basically fake experience" with providing manpower services. Nishan testified that the Kohlis had discussed this approach with Bahel, who they considered " an adviser." Thunderbird's registration was thereafter approved.

When the Kohli family was preparing its bid, Bahel discussed with them the price to bid in order to maximize the chances of obtaining the contract. Indeed, Nishan testified that " [t]he very final numbers that I entered in by hand on the day of submission were read to me by Mr. Bahel and I transcribed them over the telephone while talking to him." In response to queries from the Kohlis regarding their " lack of experience," " Bahel advised [them] that [they] would have to produce some form of experience or [they] wouldn't be qualified." Specifically, he told them to " get, by whatever means, letters stating that [they] had, in fact, this experience."

Later, when Peacekeeping raised concerns about Thunderbird's references, Bahel

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" gave [the Kohlis] the heads-up on that unofficially and advised [them] to get in touch with the companies in advance and let them know that there would be a call coming from the U.N. and ... make sure [they] corroborate what [they] said in these letters." Bahel instructed his subordinates to check the references by sending faxes to the relevant addresses, but crippled their ability to do so by allowing them to check on information provided only " on the letters of reference themselves or in the Thunderbird financial proposal." Bahel ultimately told Peacekeeping that the references " checked [ ] out," were " valid," and that " this was a company with vast international contracts of high dollar amount, and they were performing well around the world."

Bahel signed a request for audited financial statements, which Nishan Kohli testified caused him some " concern," because the Kohlis " didn't have [audited financial]...

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