United States v. Smith, Case No. 13–CR–297 (KMK).

• Citation: 985 F.Supp.2d 547
• Decision Date: 04 April 2014
• Docket Number: Case No. 13–CR–297 (KMK).
• Parties: UNITED STATES of America v. Malcolm A. SMITH, Daniel J. Halloran, Vincent Tabone, Joseph J. Savino, Noramie Jasmin, and Joseph Desmaret, Defendants.
• Court: U.S. District Court — Southern District of New York

985 F.Supp.2d 547

UNITED STATES of America

v.Malcolm A. SMITH, Daniel J. Halloran, Vincent Tabone, Joseph J. Savino, Noramie Jasmin, and Joseph Desmaret, Defendants.

Case No. 13–CR–297 (KMK).

United States District Court,

S.D. New York.

Signed April 4, 2014.

Douglas Benjamin Bloom, Esq., Justin A. Anderson, Esq., Assistant United States Attorneys, United States Attorney's Office, Southern District of New York for the Government.

Gerald Lawrence Shargel, Esq., Ross Mitchell Kramer, Esq., Winston & Strawn, LLP, New York, NY, for Defendant Malcolm A. Smith.

Vinoo P. Varghese, Esq., John Gilgun Mateus, Esq., Varghese & Associates, P.C., New York, NY, for Defendant Daniel J. Halloran.

Grant Martin Lally, Esq., Deborah Nirmala Misir, Esq., Lally & Misir, LLP, Mineola, NY, for Defendant Vincent Tabone.

OPINION AND ORDER

KENNETH M. KARAS, District Judge:

Defendants move to dismiss portions of the Indictment. In particular, Defendants challenge the application of the Travel Act, 18 U.S.C. § 1952, in this case, and the constitutionality of the Honest Services Fraud Statute, 18 U.S.C. § 1346, as applied here. Defendant Malcolm A. Smith (“Smith”) also seeks to strike certain portions of the Indictment as prejudicial surplusage. For the reasons described herein, these Motions are denied. ¹

I. Background

A. Factual Background

The following facts are taken from the Indictment that the Grand Jury returned against Defendants on April 18, 2013 (“the Indictment”). ( See Dkt. No. 42.) ² For the sake of clarity and convenience, and in keeping with the Indictment's organizational format, the Court will separately describe the facts relevant to the two schemes and one conspiracy in which the Government alleges that Defendants were involved.

1. The Spring Valley Real Estate Project Scheme

What the Government has termed “the Spring Valley Real Estate Project Scheme” allegedly involved Defendant Noramie Jasmin (“Jasmin”), who was at all relevant times the Mayor of the Village of Spring Valley, in Rockland County, New York (“the Village”); Defendant Joseph Desmaret (“Desmaret”), who was at all relevant times the Village's Deputy Mayor; a cooperating witness (“the CW”); an undercover Federal Bureau of Investigation (“FBI”) agent (“the UC”); and two other undercover FBI agents posing as the UC's associates (“the Straw Developers”). (Indictment ¶¶ 4, 5(a), 6–19.)

On or about August 5, 2011, during a meeting at a restaurant in Rockland County, Jasmin and the CW “discussed acquiring property for the Village through eminent domain and then selling that property to the CW.” ( Id. ¶ 6.) Approximately six months later, on or about February 3, 2012, Jasmin and the CW met again, this time at a hotel in Suffern, New York, and discussed Jasmin “using her authority as Mayor to sell a parcel of Village land to the CW to develop into a community center” (“the Real Estate Project”). ( Id.) Jasmin told the CW that “[i]n exchange for her assistance,” she wanted to be a “partner,” and to “build [the community center] together.” ( Id.) Jasmin also offered to expedite the “zoning thing,” and to facilitate “everything [going] smoothly for [the CW].” ( Id.)

Desmaret's involvement began on or about January 18, 2012, when he met the CW in the CW's car in Rockland County. ( Id. ¶ 7.) The CW told Desmaret about the Real Estate Project, and asked Desmaret to vote to approve the Project in his capacity as a member of the Village Board of Trustees (“the Board”). ( Id.) After the CW asked “how much ... it [would] take [him] to get it done,” Desmaret told the CW to “[m]ake an offer.” ( Id.) The CW suggested $10,000; Desmaret asked for double that. ( Id.) When Desmaret and the CW met in the CW's car again in Suffern on or about February 28, 2012, “the CW paid Desmaret $5,000 in cash as partial payment of the bribe” described above. ( Id. ¶ 8.) After the CW expressed concern that another party might approach Desmaret with a competing offer, Desmaret responded, “No, they won't get the vote.... It's a done deal.” ( Id.)

The next month, on or about March 20, 2012, the CW met with Jasmin at a hotel in Suffern, where they “discussed the financial stake each of them would have” in the Real Estate Project. ( Id. ¶ 9.) The CW suggested that Jasmin receive a 20–percent stake in the Real Estate Project, but Jasmin replied, “Partnership is 50–50, right?” ( Id.) Jasmin and the CW also discussed the manner in which the Real Estate Project would be presented to the Board, as well as the formation of a “series of companies with ownership interests in a single company” (“the Holding Company”), which would be used to “hide the identities of the [Project's] true owners.” ( Id. ¶¶ 9–10.) Jasmin told the CW that she would provide him with a cellphone that he was to use “solely” for communications with her about the Real Estate Project. ( Id. ¶ 10.)

Three days after the March 20 meeting, on or about March 23, 2012, Jasmin handed the CW “an envelope containing the name and Social Security number of a relative in whose name Jasmin's interest in the Real Estate Project would be held,” as well as “$600 in cash in order to register the Holding Company.” ( Id. ¶ 10.) The next month, on or about June 21, 2012, at a meeting in Manhattan, Jasmin provided the CW with the cellphone that she had promised him. ( Id. ¶ 11.) The month after that, on or about July 23, 2013, an application to incorporate the Holding Company was sent to the Delaware Department of State. ( Id. ¶ 12.) The Holding Company was incorporated the next day. ( Id.) On or about August 9, 2012, the CW met Jasmin at a hotel in Suffern and gave her $5,000 in cash as an advance on her share of the Real Estate Project's profits. ( Id. ¶ 13.)

On or about October 21–22, 2012, Jasmin, the CW, and the UC met at a hotel in White Plains, New York, along with the Straw Developers, during which meeting Jasmin, the CW, and the UC agreed that the Straw Developers “would appear before [the Board] posing as developers unrelated to the UC,” in order to create the appearance of a competitive bid process. ( Id. ¶ 14.) Jasmin “coached” the UC and the Straw Developers “on how to make their presentations” to the Board, and indicated that she would act at the meeting as though she had never before met the UC. ( Id.) Jasmin also “told the UC that she mailed a copy of the proposed contract” between the Village and the Holding Company for the Real Estate Project, and that the UC should bring that copy to the Board meeting. ( Id.)

On or about October 22, 2012, Jasmin and Desmaret attended the Board meeting in question, where the UC and the Straw Developers “presented separate plans” for the Real Estate Project. ( Id. ¶ 15.) The Board considered the Real Estate Project at a meeting the next day, which meeting Jasmin and Desmaret also attended. ( Id.) The minutes of that meeting reveal that Jasmin told the Board that she and other members of the Board had just “carefully interviewed” the potential developers, and that she wanted approval to negotiate a contract with the Holding Company, which she described as “a reputable company who is willing to work with the Village....” ( Id.) Both Jasmin and Desmaret voted in favor of Jasmin's proposal. ( Id.) Just over one month later, on or about November 28, 2012, the Village Attorney mailed the Holding Company a proposed contract for the sale of the Village property on which the Real Estate Project would be located. ( Id. ¶ 16.) At no point did Jasmin disclose her prior relationship with the CW, the UC, and the Straw Developers, or her financial interest in the Holding Company; Desmaret similarly failed to disclose that he had “received money in exchange for his vote.” ( Id. ¶ 15.)

On or about February 25, 2013, Jasmin met with the CW, again at a hotel in Suffern, and “agreed to use her office” as Mayor and a member of the Board “to assist in obtaining for the Holding Company a contract” for road work associated with the Real Estate Project, as well as $500,000 in related New York State funding. ( Id. ¶ 18.) On or about March 6, 2013, Desmaret also met with the CW at a hotel in Suffern, and agreed to use his office as Deputy Mayor and a member of the Board to assist the Holding Company in obtaining the same, in exchange for which he received $500. ( Id.) But this was not the only cash payment that Desmaret received from the CW in exchange for supporting the Real Estate Project; according to the Indictment, in addition to the initial $5,000 payment that he received on February 28, 2012, and the $500 payment that he received on March 6, 2013, both of which are described above, he also received payments in the following amounts, on or about the following dates, and in the following locations: $1,000 on April 27, 2012, in Suffern; $1,600 on August 9, 2012, in Suffern; $500 on October 23, 2012, in White Plains; $1,000 on December 12, 2012, in Suffern; and $900 on January 22, 2013, in Suffern. ( Id. ¶ 19.)

2. The New York City Council Consulting Contract Bribe Scheme

The Government alleges that the “New York City Council Consulting Contract Bribe Scheme” involved Defendant Daniel Halloran (“Halloran”), who at all relevant times was a member of the New York City Council (“City Council”), representing the 19th Council District in Queens, New York; the CW; and the UC. ( Id. ¶¶ 2, 20–25.)

This alleged scheme was hatched at a Manhattan restaurant, where Halloran and the CW met on or about September 7, 2012. ( Id. ¶ 20.) Halloran explained to the CW that he was “seeking matching funds for his congressional campaign from the national Republican Party.” ( Id.) The CW offered to give Halloran money for his campaign, and later asked Halloran if he could “obtain discretionary funding from the City Council budget for the CW....” ( Id.) Halloran said that he could, listed “various projects that he funds through City Council discretionary funding,” and then stated, “So now you come in and tell me what we got to do. Not an...