U.S. v. Ford

• Decision Date: 19 January 2006
• Docket Number: No. 03-1774.,03-1774.
• Citation: 435 F.3d 204
• Parties: UNITED STATES of America, Appellee, v. Patricia J. FORD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

435 F.3d 204

UNITED STATES of America, Appellee, v. Patricia J. FORD, Defendant-Appellant.

No. 03-1774.

United States Court of Appeals, Second Circuit.

Argued: October 28, 2004.

Decided: January 19, 2006.

COPYRIGHT MATERIAL OMITTED

William P. Fanciullo, Albany, New York, for Defendant-Appellant.

William C. Pericak, Assistant United States Attorney (Glenn T. Suddaby, United States Attorney for the Northern District of New York, on the brief, Robert P. Storch, Senior Litigation Counsel, of counsel), Albany, New York, for Appellee.

Before: WINTER, KATZMANN, and RAGGI, Circuit Judges.

WINTER, Circuit Judge.

Patricia Ford appeals from her conviction by a jury before Judge Kahn on one count of accepting a bribe as an agent of an organization receiving federal funds. See 18 U.S.C. § 666(a)(1)(B). Ford was an officer of a state employees' union that received federal funds. The charges against Ford alleged that she accepted free media services for her campaign for reelection to union office in return for which she steered overpriced union work to the media services provider. On appeal, Ford contends that the jury charge was materially incorrect and the evidence was legally insufficient. She also claims that various evidentiary errors, a flawed indictment, and prosecutorial misconduct before the grand jury are grounds for reversal. We agree that the jury charge was materially incorrect, and we therefore vacate the conviction.

BACKGROUND

We view the evidence in the light most favorable to the government. United States v. Alfisi, 308 F.3d 144, 146 (2d Cir.2002).

a) The Union Election

From August 1, 1994 through July 31, 1997, Ford was the elected Secretary/Treasurer of the Public Employees Federation ("PEF"), a union. She ran on a party slate called Members United for a Responsible Union ("MURU"). Under the governing rules, slates were elected or defeated as a whole. In the union hierarchy, Secretary/Treasurer was second in authority to the PEF President. Jim Sheedy was the MURU candidate for President. There were three other officer positions on the slate, all carrying the title Vice-President.

The MURU slate were all incumbents, and, in preparation for MURU's 1997 reelection campaign, Ford contacted Peter Bynum, a political communications consultant recommended by PEF's parent union. Bynum met with four of the five PEF officers on February 3, 1997, to discuss the MURU reelection campaign. Two PEF projects were also discussed: an overhaul of PEF's existing communications materials and PEF's upcoming "fight back" campaign against layoffs in the Office of Mental Health. Bynum was interested in revamping the communications materials and in doing the "fight back" campaign. He testified that he believed Ford "understood" this. At the February 3 meeting or soon thereafter, Bynum learned that MURU spent $40,000 on its 1994 campaign, did not have much money for the 1997 campaign, and would have difficulty raising money.

Nevertheless, Bynum was given a "green light" at the February 3 meeting with regard to the MURU reelection campaign and began work on it thereafter. Bynum's calendar was introduced into evidence as a business record. It reflected his involvement during February in various efforts on behalf of the MURU slate, including work on a reelection brochure, a photo shoot, and a poll. Bynum eventually created three reelection brochures for MURU, which he sent to printers on March 12, April 27, and May 17.

During February and March, Bynum was also working on the PEF "fight back" campaign and apparently seeking other PEF work. In Bynum's calendar, the February 4 entry contains Ford's home address, and the February 5 entry has a note saying "Letter to Pat Ford." The February 5 entry also contains notes of a discussion about ideas for PEF's "fight back" campaign. The February 7 entry appears to list anticipated receivables for 1997 and includes $70,000 from PEF. The February 19 entry says "proposal to PEF." The February 24 entry contains a note to "Call Pat Ford re Proposals $34,000 + $60,000 = $94,000." The March 4 entry states "Talk w/ Pat re my proposal" and included a note stating "PEF — Agreed with Pat to do $4,500/mo. retainer for 12 mos. effective 8/1/97." August 1, 1997 was the date the officers elected in the June 1997 PEF election would take office.

On March 13, 1997, Bynum sent two "fight back" proposals to PEF for $85,400 and $65,400, and on March 18, he sent a third for $51,968. PEF rejected the first two proposals and accepted the third, plus a $6,000 focus group marked up by 20 percent, for a total of $58,200. The work on this project was scheduled to be finished by May 15, 1997.

Bynum told Ford that he would do the creative work on the campaign for free if Ford would consider him for future work. Bynum maintained that he also told Ford that MURU would be responsible for the printer's fees, mail house fees, and postage. Bynum expected to profit from the election work because "there would be compensation for the election work and future compensation doing work for the union if they liked my work." Bynum incurred over $2,204 of graphic design expenses on the MURU brochures and $2,207.34 in postage expenses, but he never billed MURU for any reelection work prior to the election itself.

However, Bynum did charge PEF for his work on the "fight back" campaign. On April 9, 1997, PEF received a $58,200 invoice and paid it the next day. This was more than three weeks after the first reelection brochure went to the printer, but six weeks before the "fight back" materials were sent to the printer on May 21. President Sheedy and a vice president signed the check after Sheedy confirmed with Ford that the amount was reasonable. Bynum testified that the "fight back" bill was "somewhere between the high end of a range and inflated" because "the fact that I was doing reelection work for which I was not being particularly well compensated led me to want to make sure that I was very well compensated for the union work I was doing." Bynum believed the union would be "receptive" to high prices on the "fight back" campaign because of his reelection work.

However, MURU lost the election in June. After learning that his actions "may have appeared to be wrong," Bynum mailed an invoice backdated to September 9, 1997 and marked "past due" to Ford's home address. The invoice billed MURU $3,857.50 for the design work on the reelection campaign and $2,207.34 for postage fees paid by Bynum. This bill was never paid. MURU paid its own printing expenses for the first two reelection brochures and paid $14,470.34 in mailing expenses. The printing costs for the third brochure were not paid in advance, and MURU eventually settled the printer's claim at one-third its value.

b) Indictment and Trial

On February 22, 2002, Ford was indicted on five counts: bribery under 18 U.S.C. § 666(a)(1)(B)¹ (Count 1); embezzlement (Counts 2 and 3); making a false entry in the financial records of a union (Count 4); and making a false statement (Count 5). Count 1 charged in pertinent part that

The [PEF], during the one-year period beginning March 5, 1996 and ending March 4, 1997 received [federal] benefits of $10,000. Between on or about March 4, 1997, and on or about July 30, 1997 ... Ford, being an agent of the [PEF], an organization receiving in the one-year period beginning March 5, 1996, federal benefits in excess of $10,000.00 ... knowingly and corruptly agreed to accept and accepted something of value from Peter Bynum intending to be influenced in connection with the award of business or transactions with and of the [PEF], of a value of $5,000.00 or more.

Ford moved to dismiss the indictment because of prosecutorial misconduct before the grand jury. In support, she submitted a 51-page affirmation by counsel and a memorandum of law. The government successfully moved to strike this document, on the grounds that it contained legal argument improper in an affidavit and exceeded the page limits on memoranda of law. The court then denied Ford's motion to dismiss the indictment. Ford sought mandamus in this court and filed and then voluntarily dismissed an interlocutory appeal. Before trial, Ford successfully moved to dismiss counts 2, 4, and 5.

As noted, Bynum's calendar was admitted as a business record. Bynum testified that the calendar entries were in his handwriting and that he made them "with knowledge of the acts or events appearing in the entries." It was Bynum's "regular practice" to make calendar entries "at or near the time of the acts or events appearing in the entries" and "in the course of a regularly conducted business activity." Bynum testified, however, that he did not know "why or when" he wrote the March 4 entry about a $4,500 monthly retainer. Bynum also said that it was "possible" that he "put that in later to make myself look better." Ford unsuccessfully objected to the calendar on the grounds that it consisted of inadmissible hearsay and was more prejudicial than probative.

In instructing the jury as to Section 666(a)(1)(B), see supra note 1, the basis for Count 1, the court twice indicated that, with regard to both the word "corruptly" and the phrase "intending to be influenced," it was sufficient for the government to prove that Ford "understood" or was "aware" that Bynum's free media services were given to influence her conduct as an officer of the organization. Ford objected to this instruction.

With regard to Section 666(c), which excludes from the prohibitions of Section 666(a)(1)(B) "bona fide salary, wages, fees, or other compensation paid, or expenses paid or reimbursed, in the usual course of business," Ford asked the court to instruct the jury that "[t]he government must prove beyond a reasonable doubt that the transaction in issue in no way, to no degree, involved any acceptable business practice." The court declined to give such an instruction.

With regard to the time period during which allegedly...