United States v. Baroni

• Decision Date: 27 November 2018
• Docket Number: No. 17-1818,No. 17-1817,17-1817
• Citation: 909 F.3d 550
• Parties: UNITED STATES of America v. William E. BARONI, Jr., Appellant United States of America v. Bridget Anne Kelly, Appellant
• Court: U.S. Court of Appeals — Third Circuit

909 F.3d 550

UNITED STATES of America

v.William E. BARONI, Jr., Appellant

United States of America

v.Bridget Anne Kelly, Appellant

No. 17-1817

No. 17-1818

United States Court of Appeals, Third Circuit.

Argued: April 24, 2018

Opinion Filed: November 27, 2018

Syed Y. Latifi, Matthew J. Letten, Michael A. Levy [ARGUED], Michael D. Mann, Nicholas M. McLean, Sidley Austin LLP, 787 Seventh Avenue, New York, NY 10019, Counsel for Appellant Baroni

Henry W. Asbill, BuckleySandler, 1250 24^th Street, N.W., Suite 700, Washington, DC 20037, Jacob M. Roth [ARGUED], Charlotte H. Taylor, Jones Day, 51 Louisiana Avenue N.W., Washington, DC 20001, Michael D. Critchley, Critchley, Kinum & Denoia, LLC, 75 Livingston Avenue, 3^rd Floor, Roseland, NJ 07068, Counsel for Appellant Kelly

Mark E. Coyne, Bruce P. Keller [ARGUED], Office of the United States Attorney, 970 Broad Street, Room 700, Newark, NJ 07102, Counsel for Appellee

Before: AMBRO, SCIRICA, and SILER, JR.^* , Circuit Judges.

OPINION OF THE COURT

SCIRICA, Circuit Judge

Defendants William E. Baroni, Jr. and Bridget Anne Kelly engaged in a scheme to impose crippling gridlock on the Borough of Fort Lee, New Jersey, after Fort Lee’s mayor refused to endorse the 2013 reelection bid of then-Governor Chris Christie. To this end, under the guise of conducting a "traffic study," Baroni and Kelly, among others, conspired to limit Fort Lee motorists' access to the George Washington Bridge—the world’s busiest bridge—over four days in early September 2013: the first week of Fort Lee’s school year. This scheme caused vehicles to back up into the Borough, creating intense traffic jams. Extensive media coverage ensued, and the scandal became known as "Bridgegate."

In 2015, a grand jury indicted Baroni and Kelly for their role in the scheme. Each Defendant was charged with seven counts: conspiracy to obtain by fraud, knowingly convert, or intentionally misapply property of an organization receiving federal benefits, 18 U.S.C. § 371, and the substantive offense, id. § 666(a)(1)(A); conspiracy to commit wire fraud, id. § 1349, and two counts of the substantive offense, id. § 1343; and conspiracy against civil rights, id. § 241, and the substantive offense, id. § 242. A jury convicted Defendants on all counts. They appeal only their judgments of conviction.

For reasons that follow, we will affirm Defendants' judgments of convictions on the wire fraud and Section 666 counts but will reverse and vacate their civil rights convictions.

I.¹

In 2010, then-New Jersey Governor Chris Christie appointed Baroni to serve as Deputy Executive Director of the Port Authority of New York and New Jersey. That same year, David Wildstein—a cooperating witness in this case² —was hired to serve as the Port Authority’s Director of Interstate Capital Projects, in which capacity he functioned as Baroni’s chief of staff.

Among its many functions, the Port Authority operates the George Washington Bridge, a double-decked suspension bridge connecting the Borough of Fort Lee, New Jersey, and New York City across the Hudson River. On the bridge’s upper deck, twelve toll lanes carry traffic from New Jersey into New York. During the morning rush hour, Port Authority police place traffic cones to reserve the three right-most lanes—the "Special Access Lanes"—for local traffic from Fort Lee. This leaves the other nine lanes for drivers on the "Main Line," which includes traffic from I-80 and I-95. This practice of reserving Special Access Lanes was a decades-long custom dating back to a political deal between a former New Jersey governor and Fort Lee mayor.

Wildstein testified he first became aware of the Special Access Lanes in March 2011. He learned the three lanes were given to Fort Lee by a former New Jersey governor to reduce local traffic and "immediately thought that this would be ... a potential leverage point with [Fort Lee] Mayor [Mark] Sokolich down the road." Joint App’x (J.A.) 1596. Wildstein shared this observation with Baroni, Governor Christie’s then-Chief of Staff Bill Stepien, and Kelly, then the Deputy Chief of Staff for New Jersey’s Office of Intergovernmental Affairs (IGA). Wildstein did not, however, use the Special Access Lanes as leverage at that time.

Around the same time that Wildstein realized the Special Access Lanes could be used as leverage, IGA officials—including Kelly—were discussing a plan to solicit endorsements from Democratic elected officials to generate bipartisan support for Governor Christie’s 2013 re-election bid. IGA officials rewarded potential endorsers with, among other things, "Mayor’s Days" (meetings with top departmental and agency staff) and invitations to sporting events, breakfasts and parties at Drumthwacket (the Governor’s Princeton residence), and the Governor’s State of the State address.

The Governor’s Office and IGA used the Port Authority similarly to bestow political favors on potential endorsers. As Wildstein explained at trial, the Port Authority "was viewed as the economic engine of the region" and "had an ability to do things for Democratic officials that would potentially put the Governor in a more favorable position." J.A. 1522–23. Baroni and Wildstein were thus asked "to assist the Governor’s Office in identifying opportunities that would be helpful." J.A. 1523. The Port Authority gave benefits ranging from gifts (e.g., steel from the original World Trade Center towers, flags that had flown over Ground Zero, framed prints) and tours, to jobs, to large economic investments (e.g., the $250 million purchase of the Military Ocean Terminal at Bayonne).

One Democratic endorsement sought by the Governor’s Office was that of Mayor Sokolich. IGA invited Sokolich to a New York Giants game, several holiday parties, and one of Governor Christie’s budget addresses. And, as early as 2010, the Governor’s Office and IGA directed Wildstein to leverage the Port Authority’s resources to obtain Sokolich’s endorsement. Sokolich received benefits ranging from the sort of gifts described above to substantial Port Authority assistance for Fort Lee (e.g., Port Authority Police assistance directing traffic in Fort Lee, a $5,000 contribution to the Fort Lee fire department for an equipment purchase, and over $300,000 in funding for four shuttle buses providing Fort Lee residents with free transport between ferry and bus terminals). Despite that, Sokolich informed IGA in 2013 that local political considerations precluded him from endorsing the Governor’s reelection bid.

In June 2013, Kelly told Wildstein that she was disappointed Sokolich would not be endorsing Governor Christie, and Wildstein reminded her "if she want[ed] the Port Authority to close down those Fort Lee lanes to put some pressure on Mayor Sokolich, that that c[ould] be done." J.A. 1605. On August 13, 2013, Kelly sent an email to Wildstein that read: "Time for some traffic problems in Fort Lee." Supplemental App’x (S.A.) 42. Wildstein "understood that to mean it was time to change the lane configurations, the upper level of the George Washington Bridge in order to create traffic in the Borough of Fort Lee." J.A. 1612. Wildstein testified that, on a follow up telephone call, Kelly told him that "Mayor Sokolich needed to fully understand that life would be more difficult for him in the second Christie term than it had been [i]n the first." J.A. 1620. Wildstein admitted at trial that he agreed to change the lane configuration "[f]or the purpose of causing—of punishing Mark Sokolich, of creating a traffic jam that would punish him, send him a message," and that there was no other reason for the change. J.A. 1621.

Wildstein testified he told Baroni he "received an email from Miss Kelly that [he] viewed as instructing [him] to begin to put leverage on Mayor Sokolich by doing a lane closure." J.A. 1618. He also testified he told Baroni "that Miss Kelly wanted the Fort Lee lanes closed ... [f]or the purpose of punishing Mayor Sokolich ... [b]ecause he had not endorsed Governor Christie" and that "Mr. Baroni was fine with that." J.A. 1623.

According to Wildstein, he decided "to create the cover of a traffic study" and shared his plan with both Baroni and Kelly. J.A. 1624. Wildstein believed "calling it a traffic study would provide a cover story for the true purpose of changing and realigning that traffic pattern at the bridge" and "to have a public policy reason for doing so as opposed to saying it was political and it was punitive and revealing the true purpose."³ J.A. 1632. In furtherance of Defendants' traffic study cover story, Wildstein contacted Peter Zipf, the Port Authority’s chief traffic engineer, and told him he wanted to take away the cones that created the Special Access Lanes "so that New Jersey could determine whether those three lanes given to Fort Lee would continue on a permanent basis." J.A. 1657–58. Zipf responded later that day with various proposals but recommended that at least one segregated lane be left in place to prevent sideswipe crashes.

According to Wildstein, he and Baroni discussed when to implement the lane closure at the end of August 2013, and they selected Monday, September 9, 2013—the first day of school in Fort Lee. But Wildstein waited to give the instruction until Friday, September 6. He testified "[i]t was a deliberate effort on [his] part to wait until the last minute to give a final instruction so that nobody at the Port Authority would let Fort Lee know, would communicate that to Fort Lee or anyone else within the Port Authority," including Executive Director Patrick Foye. J.A. 1684. According to Wildstein, he discussed waiting to give the instruction with both Baroni and Kelly, who agreed. This directly contravened normal Port Authority protocol, with any lane closures announced to the public weeks, and even months, in advance.

Wildstein gave the instruction to Zipf and two other Port Authority managers, Bob Durando (the general manager of the George Washington Bridge) and Cedric Fulton (the director of...