U.S. v. Bonito, 1125

• Decision Date: 08 June 1995
• Docket Number: No. 1125,D,1125
• Citation: 57 F.3d 167
• Parties: UNITED STATES of America, Appellee, v. Benjamin BONITO, Jr., Defendant-Appellant. ocket 94-1273.
• Court: U.S. Court of Appeals — Second Circuit

Page 167

57 F.3d 167

UNITED STATES of America, Appellee, v. Benjamin BONITO, Jr., Defendant-Appellant.

No. 1125, Docket 94-1273.

United States Court of Appeals, Second Circuit.

Argued Feb. 24, 1995.

Decided June 8, 1995.

Steven Duke, New Haven, CT (Robert Casale, Branford, CT, Ashlie Berenger, Shawn Chen, Allegra Lawrence, Richard St. John and Grant Vinik, New Haven, CT, on brief), for appellant Bonito.

Joseph C. Hutchinson, Asst. U.S. Atty., New Haven, CT (Christopher F. Droney, U.S. Atty., on the brief), for appellee.

Before: NEWMAN, Chief Judge, VAN GRAAFEILAND and COFFIN, ^* Circuit Judges.

COFFIN, Senior Circuit Judge.

Benjamin Bonito was convicted of violating 18 U.S.C. Sec. 666, ¹ which proscribes bribery of officials of public and private entities receiving federal funds, and conspiracy to violate Sec. 666. He was indicted for giving an automobile to a city of New Haven real estate official to influence the purchase of his "Bonito Village" by the state-created New Haven Housing Authority, and also to steer New Haven tenants to his properties. He challenges the jury instructions, the sufficiency of the evidence, and his sentencing. We affirm.

I. Background

Benjamin Bonito was a landlord and real estate developer in the New Haven area. He was charged in the indictment with giving a car bribe to his co-defendant at trial, Joseph DeMatteo, who was the Director of Real Estate Services for the City of New Haven and also a member of a joint New Haven-New Haven Housing Authority committee established to select sites for low income housing. The New Haven Housing Authority is an organization created by Connecticut statute, see Conn.Gen.Stat. Sec. 8-40, which administers projects funded by the federal Department of Housing and Urban Development (HUD), and operates under close HUD supervision. It exists independently of the City of New Haven, which is a municipality of the state of Connecticut.

Bonito purchased a 1991 Mercury Tracer at a fundraising auction in October 1990 for $9,500. He paid for the car, but never picked it up from the lot. Instead, three months later, DeMatteo, who had originally obtained the car from a local Budget Rent-a-Car for the auction organizing committee, paid the tax and registration fee on the vehicle and took possession of it. Budget transferred the title directly to DeMatteo, though no Budget employee could remember receiving authorization from Bonito to do so. Bonito later told the police that he had bought the car at DeMatteo's request.

On January 25, 1991, DeMatteo executed a document captioned "Promissory Note." According to Bonito's statement to the police, the Note guaranteed repayment for the car. On its face, the Note described a repayment schedule for an interest free loan from Bonito in the amount of $8,200, with no mention of the car or description of the consideration given. DeMatteo was to pay monthly installments of $300 for one year starting on February 15, 1991, with the balance due in February 1992. Any default made the entire balance payable immediately and triggered a 10% interest rate. DeMatteo never made any payments on the Note. Nonetheless, Bonito did not bring suit to collect until June 30, 1992, when a corruption investigation was well under way.

The car allegedly was given primarily in connection with Bonito's attempted sale of Bonito Village to the Housing Authority. The government introduced evidence showing that Bonito had tried unsuccessfully to sell the property on the open market, and had tried but failed to sell the property to the Housing Authority in 1989. In 1990, DeMatteo was appointed to represent New Haven on a joint New Haven-Housing Authority committee established by the mayor to identify and approve sites for a few hundred units of low income housing to be purchased by the Housing Authority. The relationship between the two entities was one of cooperation; while final legal authority to choose sites may have remained with the Housing Authority, the mayor had issued a directive saying that his approval was required. During the months following the car transfer, DeMatteo allegedly used his position on the committee to advance the Housing Authority's purchase of Bonito Village in a number of ways: he set up meetings between Bonito and an aide to the Mayor concerning the deal; he became involved in the negotiations over price; and he contacted both New Haven and Housing Authority officials involved in the decision making process to try to push the deal through. Government evidence showed that DeMatteo frequently met with Bonito throughout this period of advocacy, during which DeMatteo's installment payments on the Note were falling due, and going unpaid. On April 4, 1991, the Housing Authority submitted a proposal to HUD to purchase Bonito Village for over $1.1 million. HUD rejected the deal, citing excessive price, the presence of hazardous conditions on the property, and problems with maintaining the property's one accessible road.

The government's secondary theory was that, once the Bonito Village deal fell through, DeMatteo found an alternate means to benefit Bonito. DeMatteo served as the administrator of a federal program by which occupants of condemned buildings were given temporary housing pending permanent relocation. Two months after HUD rejected the purchase of Bonito Village, DeMatteo directed his assistant to place two such displaced tenants in Bonito-owned properties and authorized payment of $12,800 to Bonito. The government argued that several facts surrounding these placements support the inference that they were connected to the car bribe. First, Bonito's buildings had never before been used. Second, the daily rate asked by Bonito and approved by DeMatteo resulted in a payment of $2,150 on September 21, 1991, six days after DeMatteo had failed to pay $2,400 on the Note for the car. Finally, New Haven had a policy of securing permanent replacement housing as quickly as possible, but the two tenants remained in Bonito's "temporary" housing for four and five months, respectively, at which time they were converted into "permanent" residents and their rents decreased.

II. Discussion

Bonito challenges his conviction and sentence on several grounds. We address them seriatim.

A. The Jury Charge

Bonito argues that the instructions were faulty in three basic respects. We note that he failed to lodge any objection to the instructions below, so we review for plain error only. Fed.R.Crim.P. 52(b); United States v. Aulicino, 44 F.3d 1102, 1109 (2d Cir.1995). A defendant satisfies this standard by showing that there was error, that it was clear or obvious, and that it affected a substantial right. United States v. Olano, --- U.S. ----, ---- - ----, 113 S.Ct. 1770, 1776-78, 123 L.Ed.2d 508 (1993); United States v. Viola, 35 F.3d 37, 41 (2d Cir.1994). None of his assigned errors meets this stringent test.

1. The Gratuity Claim

Bonito's first claim is that Sec. 666 applies only to bribery, and not gratuities. He argues that the court's instructions erroneously told the jury to convict if he corruptly gave DeMatteo a thing of value in connection with any business "past, present or future," and incorrectly defined the word "corrupt." These errors, he maintains, allowed conviction without requiring the jury to find the requisite mens rea for bribery.

In United States v. Crozier, 987 F.2d 893, 898-99 (2d Cir.1993), we held that the former version of Sec. 666 applied to both illegal gratuities and bribes. Bonito argues that the new version does not because it no longer contains the language upon which the Crozier court relied for its holding. Fatal to his argument, however, is the fact that the deleted language has been replaced with language that is to the same effect. Compare id. at 899 (under the former version of Sec. 666, the payment must be "for or because of" the official conduct) with Sec. 666(a)(1)(B) (under the current version, the payment must be "to influence or reward" the official conduct). Thus, the current statute continues to cover payments made with intent to reward past official conduct, so long as the intent to reward is corrupt.

Bonito also argues that the term "corrupt" was inadequately explained to the jury. We disagree. The court specifically instructed that the government had to prove that Bonito acted with corrupt intent, which it defined as acting

voluntarily and intentionally and with the purpose, at least in part, of accomplishing either an unlawful end result or a lawful end result by some unlawful method or means. A person acts corruptly, for example, when he gives or offers to give something of value intending to influence or reward a government agent in connection with his official duties.

Because it told the jury that the bribe had to be made "with the purpose ... of accomplishing ... an ... end," this instruction made clear that the corrupt agreement, offer or payment must precede the official act to be influenced or rewarded. It then accurately tracked the statutory language as an example. No more was required. Cf. United States v. Medley, 913 F.2d 1248, 1261 (7th Cir.1990) (failure to use the word "corrupt" not plain error where jury was told that defendant must have accepted or agreed to accept payment intending to be influenced or rewarded in his official conduct).

2. The Relevant Governmental Unit

Bonito makes a two-pronged argument that his conviction was based on an impermissible reading of Sec. 666(a)(2). The first, initially raised as part of his Rule 29 motion for judgment of acquittal, is that any bribery of DeMatteo for trying to advance the purchase of Bonito Village by the Housing Authority could not have been in connection with the "business, transaction or series of transactions" of New Haven involving at least $5,000, because no New Haven funds were implicated by the Bonito Village deal. The second is that the jury was erroneously instructed to convict if it found that...