United States v. Mangano
| Decision Date | 09 February 2018 |
| Docket Number | 16-CR-540 (JMA) |
| Court | U.S. District Court — Eastern District of New York |
| Parties | UNITED STATES OF AMERICA, v. EDWARD MANGANO, LINDA MANGANO, and JOHN VENDITTO, Defendants. |
Defendants Edward Mangano ("Mangano") and John Venditto are charged with conspiracy, and various bribery offenses in the Superseding Indictment (the "Indictment"). Mangano's wife, Linda Mangano ("Linda Mangano"), is also named as a defendant. Defendants have filed numerous pretrial motions in which one or more of them assert that:
As explained below, all of defendants' motions are denied.1
At the time of the events in question, Mangano was the Nassau County Executive and Venditto was the Supervisor of the Town of Oyster Bay ("TOB"). Mangano and Venditto are charged with conspiring, and engaging in a scheme, to solicit and receive bribes and kickbacks from Harendra Singh, a local businessman, in exchange for "performing official actions, on an as needed basis, as opportunities arose, in connection with [Singh's] businesses in Nassau County and the TOB." (Indictment ¶ 9.)
Out of this alleged overarching conspiracy, two schemes arose.
In "the TOB Loan Scheme," Mangano and Venditto allegedly took actions that led the TOB to enter into agreements with Singh's business that indirectly guaranteed loans for those businesses. (Id. ¶ 11.) These agreements took the form of amendments to previously existing concession agreements that Singh's businesses had with the TOB. (Id.) These amendments occurred in 2010, 2011, and 2012. (Id. ¶ 12.)
In the "Nassau County Contracts Scheme," Mangano allegedly took actions that resulted in Nassau County awarding contracts to Singh's businesses between late 2011 and December 2012. (Id. ¶ 13.)
Count 1 charges Mangano and Venditto with conspiracy to commit Federal Program Bribery, contrary to 18 U.S.C. § 666(a)(1)(B). Count 2 charges them with substantive Federal Program Bribery in violation of 18 U.S.C. § 666(a)(1)(B). Count 3 charges them with conspiracy to commit Honest Services Wire Fraud, contrary to 18 U.S.C. §§ 1343 and 1346. Count 4 charges them with substantive Honest Services Wire Fraud in violation of 18 U.S.C. §§1343 and 1346. Count Five charges Mangano with Honest Services Fraud. "Counts Six charges Mangano with Hobbs Act Extortion under § 1951.
The above counts are premised on what is known as the "stream-of-benefits" theory of bribery (also known as the "retainer theory" of bribery), see United States v. Percoco, No. 16-CR-776, 2017 WL 6314146, at *4 (S.D.N.Y. Dec. 11, 2017) (citation omitted). Under the stream-of-benefits theory, "the requisite quid pro quo . . . may be satisfied upon a showing that a government official received a benefit in exchange for his promise to . . . perform [official acts] as the opportunities arise." United States v. Ganim, 510 F.3d 134, 142 (2d Cir. 2007). "[S]o long as the jury finds that an official accepted gifts in exchange for a promise to perform official acts for the giver, it need not find that the specific act to be performed was identified at the time of the promise, nor need it link each specific benefit to a single official act." Id. at 47. Thus, under the stream-of-benefits theory, "[o]nce the quid pro quo has been established . . . the specific transactions comprising the illegal scheme need not match up this for that." Id.
The Second Circuit has recognized that this is a viable theory for bribery under § 666(a)(1)(B) and the honest services fraud statute, as well as for bribery charged as extortion under the Hobbs Act. See United States v. Skelos, No. 16-1618-CR, --- F. App'x ---, 2017 WL 4250021, at *3 (2d Cir. Sept. 26, 2017) (); United States v. Rosen, 716 F.3d 691, 698 n.3. & 700 (2d Cir. 2013) (, where defendant was convicted of various offenses, including "conspiracy to commit bribery, in violation of 18 U.S.C. §§ 666(a) and 1952(a)(3)" that "[w]e have made it crystal clear that the federal bribery and honest services fraud statutes that Rosen was convicted of violating criminalize 'scheme[s] involving payments at regular intervals in exchange for specific official[ ] acts as the opportunities to commit those acts arise,' even if 'the opportunity to undertake therequested act has not arisen,' and even if the payment is not exchanged for a particular act but given with the expectation that the official will 'exercise particular kinds of influence'") (citation omitted); United States v. Ganim, 510 F.3d 134, 142 (2d Cir. 2007) (). As explained below, the stream-of-benefits theory of bribery plays a prominent role in the government's responses to a number of defendants' pre-trial motions.
The Indictment also includes counts concerning the defendants' actions in covering up the underlying bribery, including charges concerning false statements to the FBI, obstruction of justice, and securities fraud.
Linda Mangano is charged in Counts 10 and 11 with Making False Statements to the FBI and in Count 8 with Obstruction of Justice. Both she and Mangano are also charged with Conspiracy to Obstruct Justice. Venditto is charged in Counts 12 and 13 with Making False Statements to the FBI and with Obstruction of Justice. Additionally, the recently filed Indictment charges Venditto with nineteen counts involving securities fraud, wire fraud related to securities offerings, and a conspiracy to commit such wire fraud. These charges allege that Venditto concealed the fact and nature of the indirect loan guarantees in securities offered by the TOB. (Indictment ¶¶ 24-27, 59-60.)
As the Second Circuit has explained:
It is well settled that an indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense. We have explained that an indictmentmust charge[ ] a crime with sufficient precision to inform the defendant of the charges he must meet and with enough detail that he may plead double jeopardy in a future prosecution based on the same set of events. Nevertheless, an indictment need do little more than to track the language of the statute charged and state the time and place (in approximate terms) of the alleged crime.
United States v. Alfonso, 143 F.3d 772, 776 (2d Cir. 1998) (citations and internal marks omitted). "Unless the government has made what can fairly be described as a full proffer of the evidence it intends to present at trial . . ., the sufficiency of the evidence is not appropriately addressed on a pretrial motion to dismiss an indictment." United States v. Perez, 575 F.3d 164, 166-67 (2d Cir. 2009) (quoting Alfonso, 143 F.3d 772, 776-77 (2d Cir. 1998))
Mangano and Venditto seek to dismiss various counts (or portions thereof), asserting that the allegations in the Indictment are deficient in various respects.2 Specifically, defendants argue that:
The government responds that such sufficiency of the evidence arguments are premature because the government has not made a full proffer of the evidence that it intends to present attrial. The Court agrees that defendants' arguments on these points are all premature and must await the presentation of proof at trial.
The Court also notes that a number of Mangano's arguments are premised on the notion that he can only be held liable for certain offenses as a principal. For example, Mangano asserts that he is not an agent of the TOB for purposes of the § 666 counts, including Count 2—the substantive § 666 count. However, even if Mangano did not qualify as agent of the TOB, he can still be found guilty of Count 2 as an aider and abettor, and as a co-conspirator under Pinkerton v. United States, 328 U.S. 640 (1946), because Count 1 alleges...
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