United States Court of Appeals
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On December 7, 2009, Joseph L. Bruno, the defendant-appellant and the previous Majority Leader of the New York State Senate was found guilty of two charges of honest services mail fraud. The prosecution was a result of Bruno's failure to reveal the conflicts of interest arising from his acceptance of significant amounts of money from the persons seeking to engage in business with the State. The indictment claimed that Bruno devised a scheme to swindle the State of New York and its inhabitants of the right to his sincere services, by asking for personal compensation and entering into a (direct and indirect) financial relationship, with the individuals who were pursuing their interests before state agencies. In addition, he also failed to disclose that such financial relationships and compensated contacts had existed and resulted in a conflict of interest (United States Court of Appeals, Second Circuit n. pag.).
Bruno moved to dismiss the indictment, arguing that the honest services statute was not constitutional in relation to cases of nondisclosure of conflicts of interest. However, the motion was denied before the district court, and it proceeded to trial. After one-month trial and one week of deliberations, Bruno was found guilty on two counts of honest services fraud (Counts Four and Eight). The jury, however, acquitted him of five counts: Counts One, Two, Five, Six, and Seven; while a verdict on one count (Count Three) could not be reached, leading the district court to declare a mistrial. Bruno was consequently sentenced to two years in prison by the district court.
To be specific, in one instance, evidence revealed that Bruno received an amount of $200,000 between March 2004 and December 2004, as consulting fees from two firms belonging to Jared E. Abbruzzese, an Albany businessman. The government asserted that the payments were intended to sway Bruno in his official capacity, and not compensate for the consultation services as he claimed. Abbruzzese was interested in a third company, Evident Technologies, which he had helped to obtain state funding worth $500,000 in three installments. The government argued that the consulting arrangement was to cover up the payments made to Bruno for speeding up his approval of the funds paid to Evident. On the second count, the evidence showed that Bruno had received a sum of $40,000 from Abbruzzese, covered up as the proceeds from the sale of a racehorse (United States Court of Appeals, Second Circuit n. pag.).
After his conviction, Bruno made an appeal. While the appeal was pending, the Supreme Court of the United States decided Skilling v. United States, which stated that the ‘Honest Services’ Fraud Act criminalizes only deceitful actions triggered through kickbacks or bribes, and not a mere nondisclosure of conflicts of interest. In his appeal, Bruno wanted 1) his conviction vacated in relation to Skilling; 2) the court to evaluate the sufficiency of the evidence under the new standards of Skilling; 3) the court to acquit him of Counts Three, Four and Eight, since under Skilling, the proof presented was inadequate to convict under the above counts; 4) the court to dismiss the indictment.
The issue in this case was whether Bruno’s conviction for honest services mail fraud should be vacated with regard to the new standards that were announced by the United States Supreme Court in Skilling v. United States. The other issue was whether the Double Jeopardy Clause prevents the retrial of the above claims. (United States Court of Appeals, Second Circuit n. pag.).
The relevant rule of law that the court used to ground its decision on was The Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution that states that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” This clause states that a defendant cannot be tried twice for the same offense. In a majority of circumstances, the Double Jeopardy Clause does not block the retrial of a defendant whose conviction has been reversed due to an error during the trial proceedings. The key exemption to this rule is a reversal of a conviction due to insufficiency of the evidence.
In response to the issue of whether Bruno’s conviction should be vacated, the Second Circuit concurred and vacated his conviction in the light of Skilling standards stating that the jury should have found Bruno accepting kickbacks or bribes. The court, however, declined to decide whether the original indictment could as well be taken as charging with honest services fraud under a bribery theory. The court dismissed the indictment without prejudice, and concluded that it would be just for the government to search for an overriding indictment clearly making such a charge (United States Court of Appeals, Second Circuit n. pag.).
With regard to the sufficiency of the evidence, Bruno argued that since the government used inadequate evidence during trial to back up his conviction under Skilling, the Double Jeopardy Clause barred retrial in connection with taking kickbacks, or bribery. Under the general rule, the Double Jeopardy Clause does not bar retrial of a defendant whose conviction has been reversed due to trial error. Therefore, the court decided that it would undertake a sufficiency of evidence review, if the conviction had been reversed due trial error, to find out whether the retrial is permissible. The Second Circuit had not yet considered the appropriateness of such a review, wherein the error could occur because of an intervening alteration in the law.
The government admitted that it had no plans of presenting any new evidence in case Bruno is retried, and, therefore, the Second Circuit concluded that it was appropriate for a sufficiency of the evidence review to be carried out. Bruno also claimed that the government did not provide enough proof of a quid pro quo, a vital component of the bribery theory of honest services fraud. However, following a thorough conduct of the review, the Court found satisfactory evidence against Bruno to prove that he received the “quid pro quo” benefits for the work he did, or promised to do in his former official capacity as Majority Leader of the New York State Senate. Consequently, the jury convicted Bruno under Skilling. A quid pro quo refers to a receipt by a government official of a benefit in exchange for the work he did, or promised to carry out, as he exercised his official power (United States Court of Appeals, Second Circuit n. pag.).
The court found sufficient evidence of a quid pro quo to convict Bruno on Counts Four and Eight. For instance, under Count Eight, a jury found out that the $40,000 payment made to Bruno for Christy's Night Out by Abbruzzese's was an illegal gift covered up as a horse payment. The evidence provided by the government showed that the $80,000 promised to Bruno by Abbruzzese or the $40,000 that was paid to him was not anywhere near the horse’s worth. Considering the illegitimacy and timing of the compensation, the failure by Bruno to disclose the transaction, as well as his efforts to disguise it as a horse payment, the jury found that Abbruzzese’s payment was only meant to expedite the TerreStar Agreement he had had with Bruno and that was terminated prematurely. With regard to Count Four, the jury found enough evidence to prove that Bruno’s actions deprived New York and its citizens of his honest services as the New York Senator under the standard announced in Skilling. Accordingly, the court held that double jeopardy did not bar retrial because of inadequacy of the evidence on the counts of conviction (United States Court of Appeals, Second Circuit n. pag.).
The court vacated Bruno's conviction, and remanded the case for further proceedings.
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