United States v. Bencivengo

• Decision Date: 23 April 2014
• Docket Number: No. 13–1836.,13–1836.
• Citation: 749 F.3d 205
• Parties: UNITED STATES of America v. John BENCIVENGO, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

749 F.3d 205

UNITED STATES of America

v.John BENCIVENGO, Appellant.

No. 13–1836.

United States Court of Appeals,

Third Circuit.

Argued on March 6, 2014.

Opinion filed: April 23, 2014.

Jerome A. Ballarotto, Esquire (Argued), Trenton, NJ, for Appellant.

Mark E. Coyne, Esquire, Steven G. Sanders, Esquire (Argued), United States Attorney Office of the United States Attorney Newark, NJ, for Appellee.

Before: RENDELL, SMITH and HARDIMAN, Circuit Judges.

OPINION

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 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. 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 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 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.

* * *

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–cr–00429–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 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 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...