Brennan v. U.S.
| Citation | 867 F.2d 111 |
| Decision Date | 20 January 1989 |
| Docket Number | No. 134,134 |
| Parties | William C. BRENNAN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. Docket 88-2253, |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Arnold E. Wallach, New York City (Harold Borg, Kew Gardens, N.Y., of counsel), for petitioner-appellant.
Beryl A. Howell, Asst. U.S. Atty., E.D.N.Y., Brooklyn, N.Y. (Andrew J. Maloney, U.S. Atty., E.D.N.Y., John Gleeson, Asst. U.S. Atty., E.D.N.Y., Brooklyn, N.Y., of counsel), for respondent-appellee.
Before MESKILL, PIERCE and WINTER, Circuit Judges.
William C. Brennan sought relief under 28 U.S.C. Sec. 2255 (1982), arguing that the Supreme Court's decision in McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987), required the vacatur of his nine wire fraud convictions and also his seventeen other convictions. The United States District Court for the Eastern District of New York, Weinstein, J., granted in part and denied in part the motion, vacating only the wire fraud convictions. United States v. Brennan, 685 F.Supp. 883 (E.D.N.Y.1988). Brennan appeals from so much of the judgment as denied his request for relief. We affirm the judgment of the district court.
William C. Brennan, a former Justice of the Supreme Court of the State of New York in Queens County, was convicted, after a jury trial, of twenty-six felonies involving use of his judicial office for the solicitation and acceptance of bribes. Specifically, Brennan was convicted of one substantive count under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. Secs. 2, 1962(c) (1982), one count of conspiracy under RICO, 18 U.S.C. Sec. 1962(d), nine counts of fraud by wire, 18 U.S.C. Secs. 2, 1343 (1982) (wire fraud), fourteen counts of interstate travel in aid of racketeering enterprises, 18 U.S.C. Secs. 2, 1952(a) (1982) (Travel Act), and one count of interference with commerce by threats or violence, 18 U.S.C. Secs. 2, 1951(a) (1982) (extortion). The facts leading up to these convictions are set out in our earlier opinion, United States v. Brennan, 798 F.2d 581 (2d Cir.1986), but we reexamine here the specific details of the convictions challenged on this appeal.
The government offered evidence to show that, between 1972 and 1985, Brennan agreed to fix seven cases in exchange for bribes. The charges of the indictment, however, were limited to Brennan's corrupt Brennan's nine wire fraud and fourteen Travel Act convictions were based only on acts done in connection with the fixing of the Romano and Polisi cases. Under these two statutes, numerous interstate telephone calls and trips made in connection with the Romano and Polisi bribery schemes each constituted separate felonies. Phone calls made between Queens or Floral Park, New York and Hallandale, Fort Lauderdale or Miami, Florida by Brennan or his middleman Anthony Bruno formed the bases of Brennan's convictions for both wire fraud and Travel Act crimes. Specifically, the following table shows the fourteen acts that led to Brennan's fourteen Travel Act convictions and nine wire fraud convictions.
handling of four of these cases, the Messina, Botta, Romano and Polisi cases. The two RICO counts focused on Brennan's activities in connection with all four of these cases.
ROMANO CASE
Date Act Conviction By Count And Statute
11/28/80 Travel from Fort Lauderdale to Count 3 Travel Act
Queens
12/7/80 Telephone call from Hallandale to Count 4 Travel Act and Count 11
Queens Wire Fraud
12/7/80 Telephone call from Queens to Count 5 Travel Act and Count 12
Hallandale Wire Fraud
12/7/80 Telephone call from Hallandale to Count 6 Travel Act and Count 13
Floral Park Wire Fraud
12/9/80 Telephone call from Hallandale to Count 7 Travel Act and Count 14
Queens Wire Fraud
12/9/80 Telephone call from Hallandale to Count 8 Travel Act and Count 15
Floral Park Wire Fraud
12/10/80 Telephone call from Hallandale to Count 9 Travel Act and Count 16
Queens Wire Fraud
1/5/81 Travel from Fort Lauderdale to Count 10 Travel Act
Queens
POLISI CASE
Date Act Conviction By Count And Statute
2/1/85 Telephone call from Queens to Count 17 Travel Act and Count 23
Hallandale Wire Fraud
2/2/85 Travel from Queens to Miami Count 18 Travel Act
2/13/85 Travel from Queens to Fort Count 19 Travel Act
Lauderdale
2/17/85 Travel from Miami to Queens Count 20 Travel Act
2/20/85 Telephone call from Queens to Count 21 Travel Act and Count 24
Hallandale Wire Fraud
2/22/85 Telephone call from Queens to Count 22 Travel Act and Count 25
Hallandale Wire Fraud
App. at 37-38, 42. Additionally, Brennan's activities in connection with the Polisi case led to his single extortion conviction. App. at 43.
With respect to Count One, the substantive RICO count, the jury was properly instructed that in order to convict Brennan, they would have to find, inter alia, that he had committed at least two predicate acts. App. at 55; see 18 U.S.C. Secs. 1961(5), 1962(c). The jury had before it a pool of possible predicate acts comprised of twenty-eight alleged violations of state and federal law committed by Brennan. These possible predicate acts included the above-detailed federal wire fraud, Travel Act and extortion offenses that were separately charged under Counts 3-26 of the indictment, together with four alleged instances of Bribe Receiving, in violation of New York state law, N.Y. Penal Law Sec. 200.10 (McKinney 1988), in connection with the Messina, Botta, Romano and Polisi cases. These twenty-eight acts were divided into four categories corresponding to the four cases the indictment charged Brennan with having fixed. Thus, the pool of acts that could have supported a substantive RICO conviction were:
1. Bribe Receiving in connection with the Messina case;
2. Bribe Receiving in connection with the Botta case;
3. In connection with the Romano case:
a. Bribe Receiving;
b. Violation of the Travel Act (also alleged as separate crimes under Counts 3-10);
c. Wire Fraud (also alleged as separate crimes under Counts 11-16); and
4. In connection with the Polisi case:
a. Bribe Receiving;
b. Violation of the Travel Act (also alleged as separate crimes under Counts 17-22);
c. Wire Fraud (also alleged as separate crimes under Counts 23-25) d. Extortion (also alleged as a separate crime under Count 26).
The jury was instructed that in order to convict Brennan under the substantive RICO count, they would have to find, inter alia, that he had committed at least one of these offenses in the context of at least two separate cases. Thus, using the examples given to the jury by Judge Weinstein, App. at 55-56, finding one Messina predicate act (i.e., Bribe Receiving) and any one Romano predicate act (e.g., wire fraud) would be sufficient, as would a finding that Brennan committed Bribe Receiving in both the Romano and Polisi cases. It would not be enough, however, to find only the commission of two Polisi predicate acts (e.g., Bribe Receiving and Travel Act).
Following Brennan's conviction, by a general verdict, on all twenty-six counts, Judge Weinstein imposed a sentence of concurrent terms of imprisonment of five years each on the substantive RICO count, the RICO conspiracy count and the extortion count. A consecutive term of five years on the remaining twenty-three counts was suspended, and Brennan was put on probation for an additional five years, subject to the condition that he have nothing further to do with the law, law enforcement or the public trust. Brennan was assessed a fine of $209,000, a RICO forfeiture of $14,000 and a mandatory special assessment of $1,300. United States v. Brennan, 629 F.Supp. 283, 306-07 (E.D.N.Y.1986).
Brennan appealed his conviction solely on evidentiary grounds, and we affirmed. Brennan, 798 F.2d 581.
Following the Supreme Court's decision in McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987), Brennan filed a petition pursuant to 28 U.S.C. Sec. 2255 seeking the vacatur of all twenty-six of his convictions. Because the jury instructions had permitted the jury to base Brennan's wire fraud convictions on the "intangible rights" theory rejected in McNally, Brennan argued that his wire fraud convictions were invalid. After our decision in Ingber v. Enzor, 841 F.2d 450 (2d Cir.1988), the government conceded that McNally rendered Brennan's wire fraud convictions invalid, and the district court vacated the nine wire fraud convictions. The district court refused, however, to vacate Brennan's seventeen other convictions. Brennan was resentenced, with the only change in his sentence being a reduction of his fine by $9,000 to $200,000 and of his special assessment by $450 to $850. 685 F.Supp. at 887.
Brennan appeals the district court's decision not to vacate the seventeen non-wire fraud convictions. He argues that his two RICO convictions must be vacated because (1) they may have been based on the invalid wire fraud counts, (2) they are invalid under the applicable five year statute of limitations, and (3) they are invalid because the Supreme Court of New York is not an "enterprise" under the RICO statute. Brennan also argues that his Travel Act and extortion convictions must be vacated. We reject Brennan's arguments and affirm the decision of the district court.
To continue reading
Request your trial
-
U.S. v. Angiulo
...was convicted, under 18 U.S.C. Sec. 1955, on the substantive gambling count corresponding to this predicate act. See Brennan v. United States, 867 F.2d 111, 114-15 (2d Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 1750, 104 L.Ed.2d 187 (1989); United States v. Kragness, 830 F.2d 842, 861 (8......
-
U.S. v. Coonan
...there would be no need to overturn the RICO convictions. See United States v. Ruggiero, 726 F.2d at 922-23; see also Brennan v. United States, 867 F.2d 111, 114-16 (2d Cir.), cert. denied, 490 U.S. 1022, 109 S.Ct. 1750, 104 L.Ed.2d 187 3. Kelly's Ability to Challenge Featherstone's Testimon......
-
U.S. v. Biaggi
...the conduct of the affairs of a RICO enterprise through a pattern that included at least two predicate acts. See Brennan v. United States, 867 F.2d 111, 114-16 (2d Cir.1989). Our question is whether, had the excluded evidence been admitted, the jury would have found that Mariotta not only c......
-
U.S. v. Torres
...satisfied by proof as to conduct occurring on or after October 26, 1986, would surely have found for the government. Cf. Brennan v. United States, 867 F.2d 111 (2d Cir.) (RICO conviction upheld, despite invalidation of wire fraud convictions as predicate acts, where convictions as to other ......
-
Judicial Relief and Remedies
...summary judgment or to seek a preliminary injunction is less demanding than that needed to prevail on the merits. R.C. Bigelow, Inc. , 867 F.2d at 111; Tasty Baking Co. , 653 F. Supp. at 1256; contra Eastman Kodak Co. , 842 F.2d at 100 (“merely facing the specter of a monopoly” is not suffi......
-
Stopping a Train: Why it is So Difficult for a Private Plaintiff to Block a Deal
...e.g., Tasty Baking Co., 653 F. Supp. at 1275–76; R.C. Bigelow, Inc. v. Unilever N.V., 867 F.2d 102, 111 (2d Cir. 1989). 64 R.C. Bigelow, 867 F.2d at 111 (explaining that the eighty-four market share created “a presumption that following the merger Lipton would be likely to eliminate competi......