United States v. Mangano
| Decision Date | 20 July 2022 |
| Docket Number | 16-CR-540 (JMA) |
| Parties | UNITED STATES OF AMERICA, v. EDWARD MANGANO, and LINDA MANGANO, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Defendants Edward Mangano (“Ed Mangano” or “Mangano”) and Linda Mangano have sought a stay for bail pending appeal and to stay financial penalties. For the reasons stated below, their motions are denied.
Ed Mangano, the former Nassau County Executive, was convicted at trial of four bribery offenses in connection with the Town of Oyster Bay (“TOB”) Loan Scheme. Mangano was convicted of Count Two, Federal Program Bribery under 18 U.S.C. § 666(a)(1)(B), and Count Four, honest services fraud under 18 U.S.C. §§ 1343 and 1346. Mangano was also convicted of Count One, conspiracy to commit Federal Program Bribery, and Count Three, conspiracy to commit honest services fraud. Additionally, Mangano was convicted of conspiracy to obstruct justice in violation of 18 U.S.C §§ 1512(c)(2) and 1512(k). He was acquitted of bribery counts in connection with certain Nassau County contracts.
On April 14, 2022, the Court sentenced Mangano to five years' imprisonment on Count One, ten years' imprisonment on Count Two, and twelve years' imprisonment on Counts Three, Four and Seven, with the sentences to all run concurrently to each other. Mangano has also been ordered to pay a fine, forfeiture, and restitution. Mangano filed his notice of appeal on April 27, 2022.
Linda Mangano was convicted at trial of Count Seven, conspiracy to obstruct justice; Count Eight, obstruction of justice; and Counts Ten and Eleven, making false statements to the FBI under 18 U.S.C. 1001. Her two false statement convictions were based on false statements she made during two proffer sessions in May 2015. She was acquitted of Count Nine, which charged her with making false statements to FBI agents on January 13, 2015.[1]
On April 14, 2022, the Court sentenced Linda Mangano to fifteen months' imprisonment on each count, with sentences to all run concurrently. Linda Mangano filed her notice of appeal on April 21, 2022.
The Court previously denied Defendants' post-trial motions in an order dated January 6, 2022 (the “Jan. 6 Order”). See United States v. Mangano, No 16-CR-540, 2022 WL 65775 (E.D.N.Y. Jan. 6, 2022). The Jan. 6 Order set out, in detail, the evidence concerning the TOB Loan Scheme, and rejected Mangano's arguments that he was entitled to acquittal and a new trial based on the decision in United States v. Silver, 948 F.3d 538, 571 (2d Cir. 2020) (“Silver II”), which was issued after Defendants' trial.
Defendants are unlikely to flee, pose no danger to the community, and their appeals are not for the purpose of delay. Accordingly resolving their motions for bail pending appeal turns on whether their appeals “raise[] a substantial question of law or fact likely to result in . . . reversal,” “an order for a new trial, or “a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process.”[2] 18 U.S.C. § 3143(b)(1)(A)-(B). A “substantial” question is “a ‘close' question or one that very well could be decided the other way.” United States v. Randell, 761 F.2d 122, 125 (2d Cir. 1985) (quoting United States v. Giancola, 754 F.2d 898, 901 (11th Cir. 1985)). If the defendant raises a question that is “substantial,” the court must “then consider whether that question is ‘so integral to the merits of the conviction on which defendant is to be imprisoned that a contrary appellate holding is likely to require reversal of the conviction or a new trial.'” Id. (quoting United States v. Miller, 753 F.2d 19, 23 (3d Cir. 1985)). A defendant must establish that “the appeal raises a substantial question of law or fact likely to result in reversal or an order for a new trial on all of the counts for which he received prison terms.” Id. at 126 (emphasis added).
The Court addresses below each of the arguments Defendants are pursuing on appeal. These arguments do not raise substantial questions that are likely to result in reversal or an order for a new trial on all of the convictions. Accordingly, the Court denies Defendants bail pending appeal.
The Court's Jan. 6 Order set out the governing standards for waiver, forfeiture, plain error, harmless error, and challenges to sufficiency of the evidence under Rule 29. It is unnecessary to recount those standards here. See Mangano, 2022 WL 65775, at *26, 32-35, 58. A. Ed Mangano's Challenges to the Bribery Convictions
Mangano argues that the issues concerning Silver II that were litigated in his post-trial motions constitute substantial questions. The Court disagrees. The Jan. 6 Order rejected Mangano's arguments concerning Silver II on multiple grounds and set out numerous alternative bases why the statute of limitation argument raised by Mangano does not warrant a new trial. Mangano's arguments do not raise a substantial question.
It is unnecessary to recount all of the points set out in the Court's comprehensive Jan. 6 Order addressing these issues. The Court will, however, briefly respond to one point raised in Mangano's reply brief. Mangano insists that the Court's statute of limitations analysis concerning the paychecks that Linda Mangano received after April 2010 was erroneous and that the paychecks at issue are analogous to the fees Sheldon Silver received within the limitations period that the Second Circuit found insufficient to satisfy the statute of limitations in Silver II. This argument does not raise a substantial question.
The Jan. 6 Order explained why Linda Mangano's paychecks were not remotely analogous to the fees received by Sheldon Silver from his law firm. As recounted in the Jan. 6 Order, the statute of limitations “is not extended where the payoff merely consists of a lengthy, indefinite series of ordinary, typically noncriminal, unilateral actions and there is no evidence that any concerted activity posing the special societal dangers of conspiracy is still taking place.” Mangano, 2022 WL 65775, at *43 (). Here, the continued paychecks that Harendra Singh issued every two weeks to Mangano's wife were not “unilateral” actions akin to the fees Silver received from his law firm years after Dr. Taub had referred cases to Silver's law firm. As the Jan. 6 Order explained, the “fees in Silver II are obviously distinguishable from the instant case where the ‘quid' was both Linda's hiring and her paychecks, which she continued to receive from Singh into the limitations period.” Mangano, 2022 WL 65775, at *43. Moreover, the evidence showed that Linda Mangano's paychecks after April 2010 were also given in exchange for Mangano's future intervention, if necessary, with the TOB loan guarantees. That was further proof that Linda Mangano's paychecks implicated the “special societal dangers” of an ongoing conspiracy.
Additionally, contrary to Mangano's claim, the paychecks Singh issued to Linda Mangano are also not analogous to the paychecks received by the defendants in United States v. Doherty, 867 F.2d 47, 61 (1st Cir. 1989). In Doherty, police officers fraudulently used stolen promotional exams to obtain promotions. While the promotions themselves occurred outside of the statute of limitations, the government argued that the statute of limitations was satisfied because the officers continued to receive increased salary payments as a result of the promotions. The First Circuit rejected this argument, finding that these payments were insufficient to extend the statute of limitations. However, these “unilateral” payments by the police department are not remotely analogous to the continued paychecks issued to Linda Mangano by Singh, who was the bribe payor and a co-conspirator with Ed Mangano. See Doherty, 867 F.2d at 62 ().
Finally, the issues raised by Silver II are irrelevant to Mangano's obstruction of justice conviction, and, as explained in the Jan. 6 Order, they also do not affect the Federal Program Bribery convictions in Counts One and Two. Mangano, 2022 WL 65775, at *35 n. 29.
Mangano argues that the Court's “official act” instruction was erroneous. Based on language taken from the Supreme Court's decision in McDonnell v. United States, 579 U.S. 550, 572 (2016), the Court instructed the jury that:
An official act must involve a decision, an action, or an agreement to make a decision or to take action. The decision or action may include using one's official position to exert pressure on or to order another to perform an official act. It may also include using one's official position to provide advice to another, knowing or intending that such advice will form the basis for an official act by another.
Mangano contends that, based on McDonnell and United States v. Birdsall, 233 U.S. 223 (1914), the Court's instructions should not have included the sentence concerning “advice.” According to Mangano, the term “advice” in McDonnell is “best understood as the inverse of ‘pressure'; whereas ‘pressure' involves the exercise of formal authority to influence the actions of subordinate officials ‘advice' involves the exercise of formal authority to influence the actions of reliant superiors.” (ECF No. 478-1 at 27.) Mangano insists that “advice” only involves “the type of formalized recommendation...
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