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Docket Number: 2:15-cr-00193
Citation:United States v. BARONI, 2:15-cr-00193, (D.N.J. Mar 01, 2017) ECF No. 323
Date Filed: March 1st, 2017
Uploaded: March 2nd, 2017, 2:10 a.m. EST
OPINION as to WILLIAM E. BARONI, JR., BRIDGET ANNE KELLY re 305 MOTION for New Trial MOTION for Acquittal filed by BRIDGET ANNE KELLY, 304 MOTION for Acquittal MOTION for New Trial filed by WILLIAM E. BARONI, JR.. Signed by Judge Susan D. Wigenton on 3/1/2017. (msd) (Entered: 03/01/2017)
Case 2:15-cr-00193-SDW Document 323 Filed 03/01/17 Page 1 of 19 PageID: 9289NOT FOR PUBLICATION UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY UNITED STATES OF AMERICA, Case: 2:15-cr-00193-SDW v. OPINION WILLIAM E. BARONI, JR. and BRIDGET ANNE KELLY, March 1, 2017 Defendants. WIGENTON, District Judge. Before this Court are Defendants William E. Baroni Jr. (“Baroni”) and Bridget Anne Kelly’s (“Kelly”) (collectively, “Defendants”) Motions for Judgments of Acquittal pursuant to Federal Rule of Criminal Procedure 29 and Motions for a New Trial pursuant to Federal Rule of Criminal Procedure 33. 1 For the reasons stated below, the Motions are DENIED. 1 All citations in this Opinion to “BB” refer to Baroni’s Brief in Support of his Motion for Judgment of Acquittal/New Trial and all citations to “KB” refer to Kelly’s Brief in Support of her Motion for Judgment of Acquittal/New Trial. Citations to “GB” refer to the Government’s Opposition Brief and citations to “GX” refer to Government trial exhibits. As Defendants seek to join each other’s motions, arguments made by one defendant are applied to both, unless otherwise noted. (KB at 58 (stating that “[t]o the extent not inconsistent with her arguments, Ms. Kelly joins in the arguments put forth by Mr. Baroni”); Baroni Letter (Dkt. No. 306) (stating that “Mr. Baroni hereby joins in Ms. Kelly’s post-trial motions”).) 1 Case 2:15-cr-00193-SDW Document 323 Filed 03/01/17 Page 2 of 19 PageID: 9290 I. BACKGROUND AND PROCEDURAL HISTORY This Court assumes familiarity with the allegations and procedural history of this case andreviews only the facts relevant to the present motions. On April 23, 2015, Baroni, former DeputyExecutive Director of the Port Authority of New York and New Jersey (“Port Authority”), andKelly, former Deputy Chief of Staff for Legislative and Intergovernmental Affairs for the Officeof the Governor of New Jersey were indicted by the United States Attorney’s Office for the Districtof New Jersey for their alleged roles in improperly closing lanes on the George Washington Bridgein September 2013 to create traffic problems in order to punish the Mayor of Fort Lee, New Jersey,Mark Sokolich (“Sokolich”), for refusing to endorse Governor Chris Christie’s re-electioncampaign. (Dkt. No. 1, Indictment at 4-5.) The Indictment charged Defendants as follows: Count 1: Conspiracy to Obtain by Fraud, Knowingly Convert, and Intentionally Misapply Property of an Organization Receiving Federal Benefits in violation of 18 U.S.C. § 666(a)(1)(A) and 18 U.S.C. § 371. Count 2: Obtaining by Fraud, Knowingly Converting, and Intentionally Misapplying Property of an Organization Receiving Federal Benefits in violation of 18 U.S.C. § 666(a)(1)(A) and § 2. Count 3: Conspiracy to Commit Wire Fraud in violation of 18 U.S.C. § 1349. Counts 4-7: Wire Fraud in violation of 18 U.S.C. § 1343 and § 2. 2 Count 8: Conspiracy against Civil Rights in violation of 18 U.S.C. § 241. Count 9: Deprivation of Civil Rights in violation of 18 U.S.C. § 242 and § 2.2 Counts Four and Six were brought against Defendant Kelly and counts Five and Seven against Defendant Baroni. 2 Case 2:15-cr-00193-SDW Document 323 Filed 03/01/17 Page 3 of 19 PageID: 9291On February 1, 2016, Defendants moved to dismiss the Indictment. (Dkt. Nos. 71, 72.) On June13, 2016, this Court denied those motions. See United States v. Baroni, Crim No. 15-193(SDW),2016 WL 3388302 (D.N.J. June 13, 2016). Trial began on September 19, 2016 and the jury begandeliberating on October 31, 2016. On November 1, 2016, the jury sent Jury Note 4 which read,“Can you be guilty of conspiracy without the act being intentionally punative [sic] toward MayorSocholich [sic].” (Dkt. No. 259.) After hearing oral argument from the defense and prosecution,(11/1/16 Tr. at 16-28) the Court responded, “Yes. Please consider this along with all otherinstructions that have been given to you.” (Dkt. No. 260.) On November 2, 2016, the jurors wereinstructed not to deliberate while the parties and the Court conferred on an issue that had arisen.(11/2/16 Tr. at 5:20-23.) That same day, Defendants moved for reconsideration of the Court’sresponse to Jury Note 4, and also sought broad reconsideration of the Court’s holding that theGovernment was not required to prove beyond a reasonable doubt that Defendants sought to punishMayor Sokolich. (Dkt. No. 265.) The Government opposed, and this Court denied, the motion onNovember 3, 2016. (Dkt. Nos. 271, 272.) That same day, the jury was instructed to resumedeliberations. On November 4, 2016, the jury found Defendants guilty on all counts. 3 Defendantsfiled Notices of Motion for Judgments of Acquittal/New Trial on November 11, 2017 4 and filedtheir briefs in support of their motions on December 19, 2016. The Government filed its oppositionon January 17, 2017. 53 On November 3 and 4, 2016, Defendants also filed motions asking this Court to instruct the jury to disregardcertain evidence regarding Jersey City Mayor Steven Fulop and Mayor Sokolich. (Dkt. Nos. 274, 278.) The juryreturned its verdict before this Court was able to rule on those motions. Therefore, they will be dismissed as moot.4 Defendants moved for judgments of acquittal pursuant to Rule 29 at the close of the Government’s case and also atthe close of the defense case. (See, 10/14/16 Tr. at 61:4-12, 70:5-7; 10/26/16 Tr. at 45:6-18.) This Court reserveddecision and addresses all issues raised by those motions in this Opinion.5 Defendants waived their right to reply. (Dkt. No. 303.) 3 Case 2:15-cr-00193-SDW Document 323 Filed 03/01/17 Page 4 of 19 PageID: 9292 II. LEGAL STANDARD Federal Rule of Criminal Procedure 29 requires the district court to enter a judgment ofacquittal for “any offense for which the evidence is insufficient to sustain a conviction.” FED. R.CRIM. P. 29(a). However, the court must “sustain the verdict if there is substantial evidence,viewed in the light most favorable to the government, to uphold the jury’s decision.” United Statesv. Gambone, 314 F.3d 163, 169-70 (3d Cir. 2003); see also United States v. Flores, 454 F.3d 149,154 (3d Cir. 2006). In reviewing a motion for acquittal, the court “must be ever vigilant . . . not tousurp the role of the jury by weighing credibility and assigning weight to the evidence, or bysubstituting its judgment for that of the jury.” Flores, 454 F.3d at 154 (quoting United States v.Brodie, 403 F.3d 123, 133 (3d Cir. 2005)). The court must view “the record in the light mostfavorable to the prosecution to determine whether any rational trier of fact could have found proofof guilt beyond a reasonable doubt based on the available evidence.” United States v. Silveus, 542F.3d 993, 1002 (3d Cir. 2008) (internal citations omitted); see also United States v. Styles, No. 15-2629, 2016 WL 4254914, at **3 (3d Cir. Aug. 12, 2016). The government also receives “thebenefit of inferences that may be drawn from the evidence and the evidence may be consideredprobative even if it is circumstantial.” United States v. Pecora, 738 F.3d 614, 618 (3d Cir. 1986).As such, a defendant bears “a heavy burden” to establish that the trial evidence was insufficient tosupport a conviction. United States v. Young, 334 Fed. App’x 477, 480 (3d Cir. 2009); see alsoUnited States v. Gonzalez, 918 F.2d 1129, 1132 (3d Cir. 1990). The standard under Federal Rule of Criminal Procedure 33 is “more general” and providesthat “the court may vacate any judgment and grant a new trial if the interest of justice so requires.”United States v. Tiangco, No. 15-567(KM), 2016 WL 7104841, at *2 (D.N.J. Dec. 5, 2016) (citingFED. R. CRIM. P. 33(a)). However, “even if a district court believes that the jury verdict is contrary 4 Case 2:15-cr-00193-SDW Document 323 Filed 03/01/17 Page 5 of 19 PageID: 9293to the weight of the evidence, it can order a new trial ‘only if it believes that there is a seriousdanger that a miscarriage of justice has occurred – that is, that an innocent person has beenconvicted.’” Silveus¸ 542 F.3d at 1004-05 (quoting United States v. Johnson, 302 F.3d 139, 150(3d Cir. 2002)). The court is not required to “view the evidence favorably to the Government, butinstead exercises its own judgment in assessing the Government’s case.” Johnson, 302 F.3d at150. “Such motions are not favored and should be ‘granted sparingly and only in exceptionalcases.’” Silveus, 542 F.3d at 1005 (internal citations omitted). III. DISCUSSION Defendants challenge their conviction on all counts, raising both constitutional andsufficiency of the evidence arguments. Before turning to Defendants’ count-specific arguments,this Court first addresses the Government’s burden of proof as to whether Defendants acted topunish Mayor Sokolich. A. Defendants generally contend that the punishment of Mayor Sokolich was “an essentialelement of each of the charged offenses” which the Government was required to prove beyond areasonable doubt. (KB at 1, 3, 5.) 6 As this Court has previously held, however, any punitivegoal Defendants may have had goes to their motive for violating the charged statutes, it is not anessential element of any of the crimes charged. 7 See, e.g., United States v. Sriyuth, 98 F.3d 739,747 n.12 (3d Cir. 1996) (stating that “motive is always relevant” even though it is not anecessary element of a crime); 3D CIR. MODEL JURY INST. § 5.04 (instructing that “[i]ntent and6 Kelly devoted most of her 60 page brief to this issue.7 See 9/19/16 Tr. 4:17-25 (“Motive is not an element that has to be proven. Motive is not an element of theconspiracy.”); 10/25/16 Tr. 187:4-13 (referring to punishment of Mayor Sokolich as “motive” that “goes beyondwhat the object of the conspiracy is” which was “misusing [Port Authority] funds”); 5 Case 2:15-cr-00193-SDW Document 323 Filed 03/01/17 Page 6 of 19 PageID: 9294motive are different concepts” and noting that “[m]otive is what prompts a person to act” but“[i]ntent refers only to the state of mind with which the particular act is done”). Defendants’motivation to punish Mayor Sokolich was central to the Government’s case – the prosecutionincluded that allegation in the Indictment (Dkt. No. 1 at ¶¶ 4, 7, 12-18), referred to it in theprosecution’s opening statement (9/19/16 Tr. 17-36), and introduced evidence of Defendants’punitive goals during trial, (see, e.g., GX5003-BK-03a; 9/26/16 Tr. at 65:1-8, 66:3-10, 81:18-25;10/5/16 Tr. at 119:16) – but only as a means of explaining to the jury why Defendants may haveviolated the law. Because it is not an element of the offenses charged, the Government wasunder no obligation to introduce evidence of motive, although motive helps present a coherentnarrative of events to a jury. It is not criminal under Section 666 to punish or conspire to punishMayor Sokolich; rather, it is criminal under Section 666 to intentionally misuse Port Authorityproperty. Therefore, it would have been improper to have instructed the jury that Defendants’punitive motive was an essential element of any of the crimes at issue. Indeed, as to theconspiracy charges, this Court was required to instruct the jury not as to Defendants’ motives,but as to the object of the conspiracies charged: to misuse Port Authority resources (Count One),to defraud the Port Authority (Count Three), and to violate the travel rights of Fort Lee residents(Count Eight). See, e.g., 18 U.S.C. § 371 (defining the object of the conspiracy as thecommission of “any offense against the United States”). 88 The jury may have convicted Defendants not knowing what drove them to act as they did or even believing thateach defendant had a different motive. See, e,g., United States v. Cervantes, 466 F.2d 736, 738 (7th Cir. 1972)(finding that a conspiracy can exists even where members “have dissimilar motives for participating in it”); UnitedStates v. Harrison, 942 F.2d 751, 756 (10th Cir. 1991) (stating that “[t]he goals of all the participants need not becongruent for a single conspiracy to exists, so long as their goals are not at cross purposes”) (internal citationomitted). 6 Case 2:15-cr-00193-SDW Document 323 Filed 03/01/17 Page 7 of 19 PageID: 9295 This Court’s response to Jury Note 4 properly reflected this distinction. The jury asked ifit was required to find that Defendants acted to intentionally punish Mayor Sokolich and thisCourt replied in the negative. The response did not, as Defendants argue, negate the need toprove intent, it merely negated the need to prove Defendants’ motive. The jury was allowed toconsider, but was not required to find, that Defendants wanted to retaliate against MayorSokolich. B.Counts One & Two Counts One and Two charge conspiracy to violate and substantive violations of 18 U.S.C.§ 666(a)(1)(A). Section 666 provides in relevant part: (a) Whoever, if the circumstance described in subsection (b) of this section exists-- (1) being an agent of an organization, or of a State, local, or Indian tribal government, or any agency thereof-- (A) embezzles, steals, obtains by fraud, or otherwise without authority knowingly converts to the use of any person other than the rightful owner or intentionally misapplies, property that-- (i) is valued at $5,000 or more, and (ii) is owned by, or is under the care, custody, or control of such organization, government, or agency; ... shall be fined under this title, imprisoned not more than 10 years, or both. 18 U.S.C. § 666(a)(1)(A).This Court finds no merit in Defendants’ argument that their Sixth Amendment right to a unanimous verdict wasviolated because “the jury did not unanimously find that the government proved punishment beyond a reasonabledoubt,” (KB at 35) as Defendants’ punitive purpose is not an essential element of the crime.Nor did the Court’s refusal to instruct the jury that the Government was required to prove punishment beyond areasonable doubt constructively amend the indictment, (KB at 35-36), because an indictment is only constructivelyamended “when, in the absence of a formal amendment, the evidence and jury instructions at trial modify essentialterms of the charged offense.” United States v. Duka, 671 F.3d 329, 352 (3d Cir. 2011) (internal citation omitted).Motive is not an essential term of any of the charged offenses. 7 Case 2:15-cr-00193-SDW Document 323 Filed 03/01/17 Page 8 of 19 PageID: 9296 Defendants seek judgments of acquittal on Counts One and Two, arguing 1) that Section666(a)(1)(A) is void for vagueness as applied, 2) the government failed to present sufficientevidence that Defendants “agreed to or did obtain property by fraud, act without authority, orintentionally misapply property of the Port Authority,” and 3) the government failed to presentsufficient evidence that the property in question had a value of at least $5,000. (BB at 1.) 1. Void for Vagueness A criminal statute is void for vagueness if it “‘fails to give a person of ordinary intelligencefair notice that his contemplated conduct is forbidden by the statute,’ or is so indefinite that ‘itencourages arbitrary and erratic arrests and convictions.’” Colautti v. Franklin, 439 U.S. 379, 390(1979) (internal citations omitted); see also United States v. Stevens, 533 F.3d 218, 249 (3d Cir.2008); United States v. Moyer, 674 F.3d 192, 211 (3d Cir. 2012). This doctrine “does not meanthat [a] statute must define every factual situation that may arise.” United States v. Nelson, 712F.3d 498, 508 (11th Cir. 2013). Rather, a statute is sufficiently clear “where reasonable personswould know that their conduct is at risk.” Maynard v. Cartwright, 486 U.S. 356, 361 (1988). Defendants take the position that Section 666 is void for vagueness as applied to thembecause the “misapplication” provision, § 666(a)(1)(A), fails to provide sufficient guidance to“ordinary people” or law enforcement to “understand what conduct is prohibited.” (BB at 18-24.)Baroni specifically asserts that the “misapplication” provision “effectively criminalizes makingany decision to expend Port Authority resources with political considerations in mind.” (BB at20.) As this Court noted previously, “[t]he statutory language of § 666(a)(1)(A) is broad, butnot unclear.” Baroni, 2016 WL 3388302 at *3 n.3; see also Salinas v. United States, 522 U.S. 52,52, 57 (1997) (describing the statute as having “plain and unambiguous meaning” and “expansive, 8 Case 2:15-cr-00193-SDW Document 323 Filed 03/01/17 Page 9 of 19 PageID: 9297unqualified language”); United States v. Rooney, 37 F.3d 847, 851 (2d Cir. 1994) (noting that“Congress intended the terms of the statute to be ‘construed broadly’”). Moreover, courts havespecifically held that “[t]he term ‘intentionally misapply,’ as it is used in § 666, is notunconstitutionally vague.” United States v. Urlacher, 979 F.2d 935, 939 (2d Cir. 1992); see alsoUnited States v. Deen, Crim. No. 14-184-01-03, 2016 WL 900463, at *3 (W.D. La. Mar. 7, 2016)(finding that “men of common intelligence are not required to guess at [the] meaning” of §666(a)(1)(A)). The statute was enacted “to protect federal funds by authorizing federal prosecutionof thefts and embezzlement from programs receiving substantial federal support even if theproperty involved no longer belonged to the federal government.” United States v. Cicco, 938F.2d 441, 445 (3d Cir. 1991). To that end, “§ 666 convictions based on the use of public moneyfor political activities [are] unexceptionable.” United States v. Genova, 333 F.3d 750, 755 (7thCir. 2003); see also United States v. Willis, 844 F.3d 155, 165 (3d Cir. 2016) (noting that Congressintended that § 666 be used “to root out public corruption”). Defendants’ argument that the statute improperly criminalizes political activities is notpersuasive. That argument conflates motive (political considerations) with mens reas and conduct(intentional misapplication). As discussed in Section A, supra, the former is merely the reason adefendant may engage in activities that violate Section 666, while the latter is what triggersprosecution under the statute. 9 This Court is satisfied that both the plain text of the statute, as wellas court decisions, put Defendants on notice that intentional misapplication of Port Authority9 For example, had Defendants chosen to retaliate against Mayor Sokolich by withholding political support, orfailing to invite him to a political fundraiser, the Government would have no basis upon which to charge them withviolating Section 666. 9 Case 2:15-cr-00193-SDW Document 323 Filed 03/01/17 Page 10 of 19 PageID: 9298resources was criminal and gave appropriate guidance to law enforcement as to what conductwould violate the statute. 10 Further, as applied to Defendants, the evidence introduced at trial was sufficient for areasonable jury to conclude that Defendants understood that what they were doing was wrong.Specifically, the Government produced evidence that Defendants concealed the real reason for thelane closures from Port Authority personnel, Fort Lee officials, the New Jersey Legislature andthe media both during and after the closures occurred. (See, e.g., 9/26/16 Trial Tr. at 73:3-5, 81:20-25, 85:1-15, 92:20-95:20, 96:8-24, 97:9-19, 118:6-129:15, 133:11-134:17, 136:3-140:11, 145:3-148:14, 149:3-151:2, 151:13-152:5, 156:12-160:14; 9/28/16 Tr. at 11:5-24:10, 25:3-31:18; 9/29/16Tr. at 76:9-19; 9/30/16 Tr. at 59:9-60:15; 10/5/16 Tr. at 18:11-19:4; 23:3-7, 10/6/16 Tr. at 173-75;and 10/13/16 Tr. at 77:6-93:25.) Viewing the evidence in the light most favorable to theprosecution, this Court finds that a reasonable jury could have inferred an intent to misapply PortAuthority funds in violation of Section 666 from Defendants’ efforts to conceal their activities.See, e.g., United States v. Dubón-Otero, 292 F.3d 1, 11-12 (1st Cir. 2002) (citing evidence ofconcealment introduced at trial as a basis upon which “a jury could find that defendants ‘withoutvalid authority’ embezzled, stole or obtained by fraud money or property”). Accordingly,Defendants’ void-for-vagueness challenge as to their convictions is unavailing.10 Nor is this Court persuaded by Defendants’ argument that principles of federalism require a narrow reading ofSection 666 to limit it to an “anti-theft and anti-bribery law.” (See BB at 5-8.) As noted above, the statute wasintended to be, and has been, read broadly in order to encompass an array of wrongful conduct. See, e.g., Willis, 844F.3d at 165 (noting that “Congress expressly intended ‘to augment the ability of the United States to vindicatesignificant acts of theft, fraud, and bribery involving Federal monies that are disbursed to private organizations orState and local governments pursuant to a federal program.’”) (quoting S. Rep. No. 98-225, at 369 (1984), asreprinted in 1984 U.S.C.C.A.N. 3182, 3510); United States v. Baroni¸ 2016 WL 3388302, at *5 n.4 (rejectingdefendants’ argument to limit the reach of the statute because it is captioned “‘Theft or bribery concerning programsreceiving Federal funds’ and has been referred to as an ‘anti-bribery” rule,’ finding that ‘a caption alone does notdefine a statute’s essential elements.’”) (citing United States v. Thompson, 484 F.3d 877 (7th Cir. 2007)). 10 Case 2:15-cr-00193-SDW Document 323 Filed 03/01/17 Page 11 of 19 PageID: 9299 2. Sufficiency of the Evidence Defendants also argue that the Government failed to introduce sufficient evidence towarrant a conviction under Section 666, because 1) property is limited to tangible property, 2)neither defendant personally benefitted from the lane closures, 3) Baroni had the authority “toundertake every action alleged in the Indictment,” and 4) the value of the property at issue wasunder the $5,000 statutory minimum. (BB at 6-9, KB at 38-49.) First, Section 666 does not limit the definition of property to tangible goods. Baroni, 2016WL 3388302, at *6 (discussing the definition of property under the statute); see also United Statesv. Lawson, No. Crim. 3:08-21-DCR, 2009 WL 1324157, at *2 (E.D. Ky. May 11, 2009) (findingthat “employee time is property within the meaning of this term in § 666(a)(1)(A) because thisterm includes both tangible and intangible property” and holding that “engineer estimatesconstitute ‘property’” for the purposes of § 666(a)(1)(A)). Accordingly, “‘compensation paid to[Port Authority] personnel in connection with the lane realignment,’ losses incurred from repeatinga spoiled traffic study, and the value of the access lanes and toll booths” are permissible underSection 666. Baroni, 2016 WL 3388302, at *6. Second, as this Court has ruled previously, a person may violate Section 666 even if he orshe does not realize a personal gain. See Id. at *6 (finding that “[m]isapplication can refer to anyimproper use of property, whether or not for personal gain, and can even encompass situations inwhich an organization benefits from the misuse”); see also United States v. Frazier, 53 F.3d 1105(10th Cir. 1995) (finding misappropriation of property under § 666(a)(1)(A) where an employeefalsely certified that federal funds were used for training purposes, but instead used those funds topurchase computers for the organization); 3D CIR. MODEL CRIM. JURY INSTR. § 6.18.666A1A-3 11 Case 2:15-cr-00193-SDW Document 323 Filed 03/01/17 Page 12 of 19 PageID: 9300(stating that misapplication “includes the wrongful use of the money or property for anunauthorized purpose, even if such use benefitted the organization”). Third, although Baroni had substantial authority as the Deputy Director of the PortAuthority, see, e.g., 9/23/16 Tr. at 135-136; 10/11/16 Tr. at 31-32, the Executive Director, PatFoye, testified at trial that Baroni violated Port Authority policies regarding lane closures. 11 (See9/21/16 Tr. at 103:6-12, 131:22-132:4, 154:11-18.) Additional testimony indicated that the lanereductions were not in line with routine Port Authority procedures and departed significantly fromprior practices. Tellingly, witnesses testified that traffic studies are ordinarily conducted withoutany lane closures or disruptions to traffic. (10/6/16 Tr. at 33-34 (testimony of Port AuthorityEngineer Umang Patel); 9/22/16 Tr. at 150:17-151:3 (testimony of Port Authority head ofGovernment and Community Relations Tina Lado); 9/26/16 Tr. at 102:3-103:14 (testimony of co-conspirator David Wildstein).) The trial testimony also indicates that the failure of Port Authoritypersonnel to respond to Mayor Sokolich’s requests for information or assistance ran counter to thePort Authority’s typical efforts to communicate with local officials. (See 9/22/16 Tr. at 82:3-84:5,143:22-148:23; 9/21/16 Tr. at 108:19-110:17.) Accordingly, the jury could have reasonably foundthat Baroni did not have the authority to close or realign the lanes as he did. Finally, in order “to avoid prosecutions for minor kickbacks and limit violations to casesof outright corruption,” charges under Section 666 may only be brought if the property in questionis worth at least $5,000. United States v. Abbey, 560 F.3d 513, 522 (6th Cir. 2009); see also UnitedStates v. Briston, 192 F. App’x 84, 86 (3d Cir. 2006) (stating that the $5,000 threshold is a11 This Court is unpersuaded by Baroni’s argument that the lack of written policies regarding lane closures orrealignments indicates that he had absolute authority to manage Port Authority resources or lanes. (BB at 11-12.)Baroni equates the absence of written policies with unfettered power – they are not the same thing. Moreimportantly, Baroni made this argument at trial and the jury’s verdict indicates that the jurors rejected it. 12 Case 2:15-cr-00193-SDW Document 323 Filed 03/01/17 Page 13 of 19 PageID: 9301jurisdictional requirement). Defendants argue that the Government “failed to prove that the salaryand wages paid to Port Authority employees were not bona fide salary or wages under § 666(c)”and “failed to prove that a significant amount of the expenses incurred by the Port Authority [were]reasonably foreseeable.” (BB at 15-16, KB 45-49.) This Court finds no support, nor doDefendants provide any, for their proximate cause argument. Defendants’ “knowledge ofjurisdictional fact[s] is irrelevant.” United States v. Crutchley, 502 F.2d 1195, 1201 (3d Cir. 1974).The determination of whether wages are “bona fide” and subject to the provision’s protection is aquestion of fact for the jury. See, e.g., United States v. Williams, 507 F.3d 905, 909 (5th Cir. 2007)(noting that “[w]hether wages are bona fide and earned in the usual course of business is a questionof fact for the jury to decide”). As this Court previously held, “although § 666(c)’s safe harborprovision protects bona fide compensation paid in the ‘usual course of business,’ it does not applywhere employee services have been diverted to work that is not part of an organization’s usualcourse of business.” See Baroni, 2016 WL 3388302 at *6 (citing cases). Here, the Governmentintroduced evidence that Defendants diverted Port Authority personnel to do work that was notpart of the agency’s “usual course of business” when reconfiguring the access lanes. (See, e.g.,9/26/16 Tr. at 102:3-103:14; 10/5/16 Tr. at 214:19-25, 224:16-25; 10/6/16 Tr. at 6-7, 32:20-33:5.)The jury could reasonably find that the value of compensation paid to Port Authority personnel,losses from a ruined traffic study, and the value of the lanes and toll booths were not bona fide andsatisfied the $5,000.00 threshold. 12 Defendants’ motions for Judgments of Acquittal on CountsOne and Two are denied.Counts Three – Seven12 The amounts alleged by the Government include $3,696.00 in compensation to tollkeepers, $5,000.00 incompensation to Port Authority personnel, and $4,400.00 to redo a traffic study. (See KB at 45.) 13 Case 2:15-cr-00193-SDW Document 323 Filed 03/01/17 Page 14 of 19 PageID: 9302 Counts Three through Seven of the Indictment allege that Defendants conspired to commitand did commit wire fraud in violation of 18 U.S.C. § 1349 and §§ 1343 and 2. 13 The elements ofwire fraud are “(1) a scheme or artifice to defraud for the purpose of obtaining money or property,(2) participation by the defendant with specific intent to defraud, and (3) use of the mails or wiretransmissions in furtherance of the scheme.” Nat’l Sec. Sys. v. Iola, 700 F.3d 65, 105 (3d Cir.2012); see also United States v. Riley, 621 F.3d 312, 329 (3d Cir. 2010); United States v. AlHedaithy, 392 F.3d 580, 590 (3d Cir. 2004); 3D CIR. MODEL CRIM. JURY INSTR. § 6.18.1343.“Additionally, the object of the alleged scheme or artifice to defraud must be a traditionallyrecognized property right.” Al Hedaithy, 392 F.3d at 590 (internal citation omitted). Defendants challenge their convictions on these counts, alleging that the Governmentfailed to present sufficient evidence that Defendants defrauded the Port Authority because Baronihad the authority to close the Local Access Lanes. (BB at 25.) Baroni argues that “at most” theevidence shows that Defendants “lied to obscure the political motivation behind the otherwisepermissible redistribution of public resources.” 14 (BB at 25.) As discussed above, the Governmentpresented evidence at trial from which the jury could reasonably have found that Baroni did nothave the authority to change the lane configurations, and in fact, did defraud the Port Authority.13 The substantive crime of wire fraud itself is defined in relevant part as: Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined under this title or imprisoned not more than 20 years, or both.18 U.S.C. § 1343.14 This Court leaves aside the question of why Defendants would need to lie to cover up their actions if they believedthem to be permissible. 14 Case 2:15-cr-00193-SDW Document 323 Filed 03/01/17 Page 15 of 19 PageID: 9303The existence and scope of Baroni’s authority was a question of fact for the jury, and one that thejurors resolved in favor of the prosecution. 15 Defendants’ Motions for Judgments of Acquittal onCounts Three, Four, Five, Six and Seven are denied.Counts Eight and Nine Defendants were also convicted of conspiring against civil rights, in violation of 18 U.S.C.§ 241, and depriving residents of Fort Lee of their civil rights in violation of 18 U.S.C. §§ 242 and2. Section 242 prohibits persons acting “under color of any law, statute, ordinance, regulation, orcustom” from “willfully subject[ing] any person in any State, Territory, Commonwealth,Possession, or District to the deprivation of any rights, privileges, or immunities secured orprotected by the Constitution or laws of the United States . . . .” 18 U.S.C. § 242. Defendantschallenge their convictions on Counts Eight and Nine, alleging: 1) that there is no constitutionalright to intrastate travel (KB 53); 2) that the Government failed to prove that Defendants had anillegitimate purpose in closing the dedicated lanes (KB 51-56, BB 28-29, 34); 3) there was nodeprivation of a right to localized travel on public roadways because motorists were only delayed,rather than prohibited from traveling (BB 33-34); and 4) the shocks the conscience test as set outin the jury instructions is “hopelessly vague” and the Government also failed to prove thatDefendants’ conduct did, in fact, shock the conscience (KB 55-57, BB 33).15 Defendants go to great lengths to attempt to characterize the wire fraud charges as “an impermissible end-runaround Supreme Court limitations on the scope of honest services fraud” in contravention of that court’s decision inSkilling v. United States, 561 U.S. 358 (2010). (BB at 35.) To do so, Defendants argue that the Port Authority wasdeprived of an intangible right to honest services from Defendants rather than a property right. (BB at 35-37.)There is a difference, however, between intangible rights to honest services not covered by the wire fraud statute,and intangible property rights which are. See, e.g., McNally v. United States, 483 U.S. 350, 356 (1987); Carpenterv. United States, 484 U.S. 19, 25 (1987). As this Court held in its earlier decision “[d]epriving an employer ofcontrol over an organization’s assets” such as toll booths, roadways, employee compensation and “the costs ofredoing a traffic study” is such an intangible property right. Baroni, 2016 WL 3388302 at *6, *9. 15 Case 2:15-cr-00193-SDW Document 323 Filed 03/01/17 Page 16 of 19 PageID: 9304 First, this Court previously held that the right to intrastate travel exists. See Baroni, 2016WL 3388302, at *9 (discussing the recognition and contours of the right and citing cases); see alsoLutz v. City of York, 899 F.2d 255, 268, 270 (3d Cir. 1990) (holding that the right to intrastatetravel exists under even the narrowest conception of substantive due process and that restrictionson that right are only permissible if they are narrowly tailored to meet significant governmentobjectives). This Court has no basis to revisit that holding. 16 Second, the Government introduced evidence from which a reasonable jury could concludethat Defendants closed the access lanes, not for a legitimate traffic study or other proper goal, butrather for the illegitimate purpose of harming Fort Lee residents. Testimony indicated that the laneclosures were planned for the first day of the school year to maximize traffic, that Baroni discussedwhether the mayor himself would be affected, and that Defendants ignored requests from Fort Leefor assistance and worked to reinstate the closures after they had been reversed. (See, e.g., 9/21/16Tr. at 136:11-139:20; 9/22/16 Tr. at 177:2-178:1; 9/26/16 Tr. at 72:19-73:8, 99:6-100:14, 101:6-11, 169:13-170:18; 9/27/16 Tr. at 49:2-51:1; GX145, 274, 368, 1091, 1102, 5003, 5008, 7004,7006.) 17 Testimony also indicated that the Defendants lied about the existence of a legitimate16 Defendants argue that the Supreme Court’s per curiam decision in White v. Pauly, 137 S. Ct. 548 (2017),“significantly limited the grounds upon which a constitutional right may be considered ‘clearly established.’” (Dkt.No. 315 at 1.) This Court disagrees. The Supreme Court merely “reiterate[d]” a “longstanding principle” thatprecedent “does not require a case directly on point” in order for a right to be clearly established. White, 137 S. Ct.at 551-52. This Court applied that principle when reaching its earlier ruling. See Baroni, 2016 WL 3388302 at *9(noting that “[a] right is ‘clearly established,’ not when every possible factual scenario as to that right is identified,but rather when parties are on notice that their actions would be unconstitutional”) (citing cases).17 Defendants also argue that the evidence shows only that the lane closures were designed to punish MayorSokolich, not harm Fort Lee residents. (BB at 38-39.) However, it was not necessary that the Government show thatthe Defendants’ only or main goal was to harm that city’s residents. See, e.g,, United States v. Ellis, 595 F.2d 154,162 (3d Cir. 1979) (stating that the law does not “require that the immediate intent to violate constitutional rightspredominate over the ultimate purposes which that violation is designed to achieve”); see also United States v.Piekarsky, 687 F.3d 134, 144 (3d Cir. 2012). For the same reason, this Court is unpersuaded by Defendants’contention that because persons other than Fort Lee residents were harmed, they lacked the specific intent to injurethe rights of only Fort Lee residents. (BB at 29-30.) 16 Case 2:15-cr-00193-SDW Document 323 Filed 03/01/17 Page 17 of 19 PageID: 9305traffic study in order to hide their true purpose for the lane closures. (See e.g., 9/27/16 Tr. at 56:6-58:18.) Third, this Court finds no basis upon which to limit the right to intrastate travel only tosituations in which residents were prevented from traveling as Defendants request. (BB at 33-34,KB 54-55.) The case law makes no such distinction, nor do Defendants provide any support for adetermination that there is no deprivation where residents are merely delayed in their travels. Theright articulated by the Third Circuit in Lutz “is freedom to travel within a state, subject toabridgement by a significant government interest narrowly tailored to achieve that goal.” Baroni,2016 WL 3388302 at *9 n.8. The violation of the right is demonstrated by an infringement of theright for an improper purpose, not by the severity of the infringement. “Where traffic is abyproduct of a significant government interest imposed in a limited fashion to meet that goal, itmay be constitutional.” Id. Neither the evidence nor the testimony supported a legitimate orsignificant governmental interest in this case. Finally, the “shocks the conscience” standard as given to the jury was not vague. Thisstandard is routinely given in cases involving violations of substantive due process rights. See,e.g., United States v. Lanier, 520 U.S. 259, 262 (1997). In informing the jurors that they couldconsider “the purpose of the lane and toll booth reductions,” “the amount of time and planning thatwent into them,” “the manner in which they were carried out,” “whether the defendants persistedwith . . . the reductions despite having information about their consequences,” and “whether thedefendant[s] intended to deprive Fort Lee residents of their right to localized travel,” (10/26/16 Tr.at 83:21-84:6) this Court merely exercised its discretion to “tailor” the standard to the facts of thisparticular case. United States v. Garrett, 574 F.2d 778, 783 (3d Cir. 1978) (noting that the trialcourt had discretion to use “particular language in charging the jury”). Whether Defendants’ 17 Case 2:15-cr-00193-SDW Document 323 Filed 03/01/17 Page 18 of 19 PageID: 9306conduct did, in fact, shock the conscience, was a purely factual issue for the jury and one the juryresolved in favor of the prosecution. It is not for this Court to replace the jury’s determinationwith its own. Therefore, Defendants’ Motions for Judgments of Acquittal on Counts Eight and Nine aredenied. C. Defendants also seek a mistrial based on post-trial statements attributed to Juror #10 in aNovember 4, 2016 NewJersey.com article. (BB at 41-42.) Juror #10 is quoted as saying thatNovember 2, 2016 “was probably the worst day of” deliberations. (BB Ex. D1-D3.) Defendantsargue that this statement creates “a genuine question whether the jury engaged in partialdeliberations without the entire jury present” in contravention of this Court’s instruction not todeliberate on that date. (BB at 42.) This Court disagrees. Juror #10’s statement reflects hisperception of the deliberations process, but provides no evidence that the jurors ignored thisCourt’s instructions. As such, there are no grounds for a mistrial and Defendants’ Motions for aNew Trial are denied. 18 IV. Conclusion18 In the alternative, Defendants contend that this Court should question the jurors or allow counsel to question themas to the events of November 2, 2016. (BB at 41-42.) Federal Rule of Criminal Procedure 606(b) prohibits suchquestioning absent evidence of “(A) extraneous prejudicial information . . . improperly brought to the jury’sattention; (B) an outside influence . . . improperly brought to bear on any juror; or (C) a mistake . . . in entering theverdict on the verdict form.” FED. R. CRIM. P 606(b). Defendants do not allege that any of these circumstancesexist. Even if Rule 606 permitted post-trial questioning, it would not be appropriate here, where there is no clearevidence of impropriety. See, e.g., United States v. Anwo, 97 F. App’x 383, 386-87 (3d Cir. 2004) (noting that“post-verdict inquiries may lead to evil consequences: subjecting juries to harassment, inhibiting juryroomdeliberation, burdening courts with meritless applications, increasing temptation for jury tampering and creatinguncertainty in jury verdicts”) (internal citation omitted). 18 Case 2:15-cr-00193-SDW Document 323 Filed 03/01/17 Page 19 of 19 PageID: 9307 For the reasons set forth above, Defendants’ Motions for Judgments of Acquittal and for aNew Trial are DENIED. An appropriate order follows. s/ Susan D. Wigenton_______ SUSAN D. WIGENTON UNITED STATES DISTRICT JUDGEOrig: Clerkcc: Parties 19
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