United States v. Reichberg ( 2021 )

19-1645-cr
United States v. Reichberg
In the
United States Court of Appeals
For the Second Circuit
________
AUGUST TERM, 2020
ARGUED: SEPTEMBER 21, 2020
DECIDED: JULY 15, 2021
No. 19-1645-cr
UNITED STATES OF AMERICA,
Appellee,
v.
JEREMY REICHBERG, also known as Jeremiah Reichberg, also known
as Yermy Reichberg,
Defendant-Appellant.*
________
Appeal from the United States District Court
for the Southern District of New York.
________
Before: WALKER, CARNEY, and PARK, Circuit Judges.
________
*The Clerk of Court is respectfully directed to amend the caption as set
forth above.
2 19-1645-cr
Defendant-Appellant Jeremy Reichberg ran a business selling
favorable outcomes to encounters with the New York Police
Department (NYPD), which he secured by bribing NYPD officers.
Following a jury trial, Reichberg was convicted on multiple bribery
charges and obstruction of justice in the United States District Court
for the Southern District of New York (Gregory H. Woods, J.).
Reichberg now appeals his convictions, challenging the pre-trial
denial of his motion to suppress evidence, a number of evidentiary
and trial-management rulings, the district court’s failure to inquire
into one of his attorneys’ potential conflict of interest, the jury
instructions, and the sufficiency of the evidence in support of his
convictions. None of Reichberg’s arguments has merit. Accordingly,
we AFFIRM the judgment of conviction.
________
JESSICA LONERGAN (Martin S. Bell, Kimberly J.
Ravener, Thomas McKay, on the brief), Assistant
United States Attorneys, for Audrey Strauss,
United States Attorney for the Southern District of
New York, New York, NY; for Appellee United
States of America.
JOHN C. MERINGOLO (Clara Kalhous, Anjelica
Cappellino, on the brief), Meringolo & Associates,
P.C., New York, NY; for Defendant-Appellant Jeremy
Reichberg.
________
3 19-1645-cr
JOHN M. WALKER, JR., Circuit Judge:
Defendant-Appellant Jeremy Reichberg ran a business selling
favorable outcomes to encounters with the New York Police
Department (NYPD), which he secured by bribing NYPD officers.
Following a jury trial, Reichberg was convicted on multiple bribery
charges and obstruction of justice in the United States District Court
for the Southern District of New York (Gregory H. Woods, J.).
Reichberg now appeals his convictions, challenging the pre-trial
denial of his motion to suppress evidence, a number of evidentiary
and trial-management rulings, the district court’s failure to inquire
into one of his attorneys’ potential conflict of interest, the jury
instructions, and the sufficiency of the evidence in support of his
convictions. None of Reichberg’s arguments has merit. Accordingly,
we AFFIRM the judgment of conviction. 1
BACKGROUND
Jeremy Reichberg was a self-styled Brooklyn “liaison” to the
NYPD, 2 in the business of selling preferred outcomes to encounters
with law enforcement. Reichberg’s business model functioned by
providing lavish, in-kind benefits to high-ranking NYPD officers
1 The resolution of this appeal was held pending resolution of the appeals
to this court in United States v. Skelos, Nos. 18-3421-cr & 18-3442-cr, which in part
concerned a related legal issue. See infra Part IX. Skelos was decided on February
23, 2021. United States v. Skelos, 988 F.3d 645 (2d Cir. 2021).
2 App. at 3004 (Reichberg’s co-conspirator testified that Reichberg called
himself a “liaison” to the NYPD and used that title in his email signature).
4 19-1645-cr
who, in turn, exerted their influence to get Reichberg’s friends and
clients favorable treatment from the NYPD.
Beginning in 2013, Reichberg partnered in this enterprise with
Jona Rechnitz, who pled guilty and testified at trial as a cooperating
witness for the government. Reichberg would contact NYPD officers
to request the favors and, if the officer came through, would tell
Rechnitz which officer should receive benefits. The officers with
whom the pair cultivated these relationships included, among others,
Philip Banks III, the Chief of the Department and an unindicted co-
conspirator in the scheme; Chief Michael Harrington, Banks’s
Executive Officer, who pled guilty; and James Grant, who was a
lieutenant in Reichberg’s precinct before his promotion to the 19th
Precinct’s Commanding Officer. Grant was Reichberg’s co-defendant
at trial.
The benefits the officers received took many forms, including
trips on private jets and luxury hotel stays with prostitutes; football,
basketball, and hockey tickets worth tens of thousands of dollars;
international travel arrangements to Israel and the Dominican
Republic; home improvements worth thousands of dollars; and
approximately $60,000 in business steered toward certain of the
officers’ private security companies.
Reichberg and Rechnitz’s largesse obtained a host of favors
from NYPD officers. For example, one of Reichberg’s clients was
arrested three separate times, but each time was released from
custody after Reichberg contacted NYPD officers. Grant exerted his
influence to secure the processing and approval of gun licenses, even
when those applications were deficient or the applicants unqualified
5 19-1645-cr
for the type of license sought. Grant conferred this benefit on
Reichberg, who obtained a full-carry gun license without the licensing
division bothering to investigate whether he qualified for one. Banks
secured Grant’s promotion to Inspector in the 19th Precinct, on
Manhattan’s Upper East Side—a strategic posting valuable to
Reichberg and Rechnitz because of its proximity to Rechnitz’s
Manhattan office. Officers also provided police rides and police
escorts to Reichberg and Rechnitz’s friends to cut through traffic,
arranged for an NYPD police boat to give rides to attendees at a
barbecue Reichberg hosted, and arranged for an NYPD helicopter to
do a flyover of a cocktail cruise organized by Reichberg.
Ultimately, in April 2018, an indictment 3 filed in the Southern
District of New York charged Reichberg with honest services wire
fraud, in violation of 18 U.S.C. §§ 1343, 1346, and 2; conspiracy to
commit honest services wire fraud, in violation of 18 U.S.C. §§ 1343,
1346, and 1349; payment of bribes and gratuities, in violation of 18
U.S.C. §§ 666 and 2; conspiracy to pay bribes and gratuities, in
violation of 18 U.S.C. § 371; and obstruction of justice, in violation of
18 U.S.C. §§ 1512(c)(1) and 2. 4 The indictment charged Grant with
honest services wire fraud, conspiracy to commit honest services wire
fraud, conspiracy to pay bribes and gratuities, and receipt of bribes
and gratuities, in violation of 18 U.S.C. § 666.
In January 2019, following an eight-week jury trial, Reichberg
was convicted of honest services wire fraud, conspiracy to commit
3 The first indictment was filed on July 7, 2016.
4 Reichberg was also charged with conspiracy to misapply and convert
property of a program receiving federal funds, in violation of 18 U.S.C. § 371, but
that charge was dismissed before trial.
6 19-1645-cr
honest services wire fraud, and conspiracy to pay bribes and
gratuities (the bribery counts), as well as obstruction of justice. He
was acquitted of the payment of bribes and gratuities. Grant was
acquitted of all charges.
The district court sentenced Reichberg to 48 months’
imprisonment on each of the four counts of conviction, to run
concurrently, and two years’ supervised release. This appeal ensued.
DISCUSSION
On appeal, Reichberg challenges his convictions as follows:
(1) evidence collected from his electronic devices should have been
suppressed because it was seized in violation of the Fourth
Amendment; (2) the district court prejudiced him by correcting a
misstatement of law made by co-defendant Grant’s attorney;
(3) evidence of uncharged conduct should have been excluded as
unfairly prejudicial; (4) the government disclosed certain documents
in an untimely fashion, prejudicing his defense; (5) the temporary
admission of a phone call (GX-300A) against his co-defendant
generated spillover prejudice against him; (6) the admission of his
non-testifying co-defendant’s statements against that co-defendant
violated Reichberg’s Confrontation Clause rights; (7) the district court
abused its discretion in excluding two proposed expert witnesses for
the defense; (8) the district court erred by failing to hold a hearing to
investigate his attorney’s potential conflict of interest; (9) the jury was
wrongly instructed on the relevant law; and (10) the evidence was
7 19-1645-cr
insufficient to support his convictions. None of these arguments has
merit. 5
I. Motion to suppress
Reichberg argues that the district court erred by denying his
motion to suppress evidence from certain email accounts and
electronic devices. He does not contest the initial seizure of those
accounts and devices, but rather, he argues that the government’s
overly broad production of data to his co-defendants from those
devices worked an independent unreasonable seizure in violation of
the Fourth Amendment. We assume for the sake of discussion that
what Reichberg describes could be an independent Fourth
Amendment violation, but we determine that, under the
circumstances, suppression was not warranted.
The Fourth Amendment guarantees the right to be free from
unreasonable searches and seizures. 6 “To safeguard Fourth
Amendment rights, the Supreme Court created ‘an exclusionary rule
that, when applicable, forbids the use of improperly obtained
evidence at trial.’” 7 Suppression (i.e., exclusion) of evidence is
required only when suppression would “deter future unlawful . . .
Reichberg also argues that the district court’s cumulative errors at trial
5
deprived him of a fair trial. Because we find no error in any of Reichberg’s specific
objections, we have no occasion to consider the cumulative effect of the alleged
errors. United States v. James, 712 F.3d 79, 107 (2d Cir. 2013).
6 U.S. CONST. amend. IV.
United States v. Bershchansky, 788 F.3d 102, 112 (2d Cir. 2015) (quoting
7
Herring v. United States, 555 U.S. 135, 139 (2009)).
8 19-1645-cr
conduct and thereby effectuate the guarantee of the Fourth
Amendment against unreasonable searches and seizures.” 8
The district court, whose factual findings we review only for
clear error, 9 denied Reichberg’s motion upon finding that the
government produced the complained-about data after an
“objectively reasonable, if unfortunate, miscommunication between
the parties regarding what was being produced and to whom.” 10
Specifically, the district court found that the government believed
Reichberg was aware that it was producing all data, rather than only
responsive data, to his co-defendants. Supporting this belief was the
fact that the protective order entered in the case described the
government’s discovery practices to that effect and the fact that the
government had previously made a similarly broad production of
Grant’s and Reichberg’s emails to all defendants.
We easily agree with the district court, upon de novo review of
its denial of Reichberg’s suppression motion, 11 that suppression was
not required in this circumstance. In light of the communications
between the parties, it is plain that the government was operating
under an objectively reasonable belief that Reichberg had consented
to its production practices. And where the government reasonably
8 Id. (quoting United States v. Calandra, 414 U.S. 338, 347 (1974)).
9 United States v. Raymonda, 780 F.3d 105, 113 (2d Cir. 2015).
10 App. at 7683–84.
11 Raymonda, 780 F.3d at 113.
9 19-1645-cr
believed the defendant consented to the challenged practice,
“suppression would do nothing to deter . . . misconduct.” 12
II. Misstatement of law by Grant’s counsel
Reichberg argues that he is entitled to a new trial because he
was prejudiced by the district court’s instruction to the jury that
corrected a legal misstatement by Grant’s counsel. We discern no
error in the district court’s handling of the situation and no prejudice
to Reichberg.
Grant’s counsel concluded his opening statement to the jury
with a misstatement of law, stating: “[I]f you believe Jimmy Grant and
Jeremy Reichberg are friends, you must vote not guilty.” 13 The
government immediately moved for a curative instruction, and the
district court received briefing and heard argument from counsel on
how to address the problem.
The district court then advised the jury that what Grant’s
counsel had said was not the law. It elaborated:
Of course, being friends with someone is not
against the law, and giving something of
value to a public official solely out of
friendship is also not a crime, but contrary
to Mr. Meringolo’s statement, under the
law, it is possible to commit the offenses
United States v. Gomez, 877 F.3d 76, 94 (2d Cir. 2017) (quoting Davis v.
12
United States, 564 U.S. 229, 232 (2011)).
13 App. at 724.
10 19-1645-cr
charged here together with people with
whom you have a friendship. 14
Reichberg asserts that this correction by the district court
prejudiced him by leading the jury to believe that any consideration
of his friendship with Grant was improper. We disagree. The district
court had no choice but to correct the plain misstatement of law from
Grant’s counsel. The district court substituted the correct legal
standard in its place, and did so in a balanced and legally accurate
fashion. 15
III. Evidence of uncharged conduct
On appeal, Reichberg challenges the admission at trial of three
categories of evidence: (1) evidence of him currying favor with
Mayor Bill de Blasio in expectation of preferential treatment;
(2) evidence about his involvement in a bribe between the President
of the Correction Officers’ Benevolent Association, Norman
Seabrook, and a hedge fund manager, Murray Huberfeld; and
(3) evidence that he directed investments to a liquor business run by
an individual named Hamlet Peralta in exchange for commissions.
Reichberg objected to the admission of the first two categories
before the district court, so we review those evidentiary rulings for
14 Id. at 1458.
15 See United States v. Coyne, 4 F.3d 100, 113 (2d Cir. 1993) (noting that where
a defendant argues friendship provided an innocent motivation for his actions, it
is proper to instruct the jury that “a valid purpose that partially motivates a
transaction does not insulate participants in an unlawful transaction from criminal
liability” (internal quotation marks omitted)).
11 19-1645-cr
abuse of discretion. 16 We review his unpreserved objection to the
Peralta evidence only for plain error. 17 Regardless of the standards of
review, we find no error in the admission of this evidence.
1. De Blasio evidence
The evidence of Reichberg’s efforts to gain favor with de Blasio
was properly admitted as evidence of intent under Federal Rule of
Evidence 404(b). Rule 404(b) makes evidence of uncharged conduct
admissible to prove the defendant’s intent in committing the charged
conduct. 18 Here, Rechnitz testified that he and Reichberg developed
a relationship with de Blasio’s chief fundraiser during the 2013 New
York City mayoral campaign, and that they did so because “we
wanted access, we wanted influence . . . . When we called, we wanted
results.” 19 Rechnitz further testified that when he and Reichberg
bundled contributions for the campaign, they “would only be
donating these funds and getting involved if we were treated that
way.” 20 This evidence of similar efforts to obtain “results” from
public officials by currying financial favor undercut Reichberg’s
argument at trial that the benefits he provided NYPD officers were
16United States v. Hendricks, 921 F.3d 320, 326 (2d Cir. 2019), cert. denied, 140
S. Ct. 870 (2020).
17 United States v. Simels, 654 F.3d 161, 168 (2d Cir. 2011).
18 Fed. R. Evid. 404(b)(1).
19 App. at 3207.
20 Id.
12 19-1645-cr
simply gifts, motivated purely by friendship and given with no
expectation of receiving anything in return. 21
We also discern no violation of Federal Rule of Evidence 403 in
the admission of this evidence. Rule 403 requires that, for relevant
evidence to be admissible, its probative value must not be
substantially outweighed by the danger of unfair prejudice. 22 There
is no such danger here, because the uncharged conduct—legal
campaign contribution bundling—was less inflammatory than the
charged conduct. 23 We therefore find no abuse of discretion in the
admission of this evidence.
2. Seabrook-Huberfeld evidence
The evidence concerning the bribe between the Benevolent
Association President Norman Seabrook and hedge fund manager
Murray Huberfeld was properly admitted as evidence of intent for
much the same reasons. At trial, Rechnitz described how he had
arranged for Seabrook to invest tens of millions of dollars into
Huberfeld’s hedge fund in return for a kickback. Rechnitz and
Reichberg then benefitted from this arrangement in two ways:
Huberfeld directed charitable donations to organizations of their
choice, and their proximity to Seabrook from this arrangement gave
21See United States v. Caputo, 808 F.2d 963, 968 (2d Cir. 1987) (“Where intent
to commit the crime charged is clearly at issue, evidence of prior similar acts may
be introduced to prove that intent.”).
22 Fed. R. Evid. 403.
23See United States v. Roldan-Zapata, 916 F.2d 795, 804 (2d Cir. 1990) (finding
evidence of uncharged conduct not unfairly prejudicial in part because it “did not
involve conduct any more sensational or disturbing than the crimes with which
[the defendant] was charged”).
13 19-1645-cr
them an opportunity to get close to Chief Banks (one of Seabrook’s
friends and an unindicted co-conspirator in the charged scheme). In
Rechnitz’s words, this arrangement would help them “get in with the
cops, get in with the politicians.” 24 The evidence of this arrangement
therefore tended to prove their intent to “get in with the cops” in the
charged scheme, and was no more inflammatory than the facts of the
charged scheme. We accordingly find no abuse of discretion in its
admission.
3. Hamlet Peralta evidence
Turning to the evidence concerning the investments in Hamlet
Peralta’s liquor business, we also find it properly admitted as relevant
to Reichberg’s intent in the charged scheme. In this ploy, Reichberg
and Rechnitz recruited investors in the liquor business by
representing that the business was a good investment, but did not
reveal to the investors that in return Peralta was paying kickbacks to
Reichberg and Rechnitz. Put differently, just as in the charged
scheme, Reichberg was motivated by financial self-interest rather
than wanting to provide friends with an unreciprocated benefit.
Moreover, we can discern no unfair prejudice from this evidence in
large part because, in the end, Reichberg and Rechnitz ended up as
victims too. It turned out that Peralta’s liquor business was actually
a Ponzi scheme, and Rechnitz’s own investment in it was lost.
In sum, we find no error in the admission at trial of any of the
evidence Reichberg challenges on appeal.
24 App. at 3198.
14 19-1645-cr
IV. Allegedly late document disclosure
Reichberg argues that the government belatedly disclosed
particular documents in violation of Federal Rule of Criminal
Procedure 16, and that the violation prejudiced his defense. We
disagree.
The documents at issue here were gun licensing applications
found in the work locker of David Villanueva, an NYPD gun licensing
officer who pled guilty to bribery and testified as a cooperating
witness for the government at trial. These documents became
relevant for impeachment purposes during Villanueva’s cross-
examination, when Grant’s counsel asked Villanueva about whether
he had processed applications at the behest of an individual named
Ben Petroske. (Petroske was formerly Villanueva’s commanding
officer in the gun licensing division, and allegedly took bribes to
expedite the processing and approval of select gun license
applications.) Villanueva denied giving special treatment to
applications sent to him by Petroske.
During the overnight break in Villanueva’s cross-examination,
the government produced the gun license applications that had been
found in Villanueva’s locker to defense counsel. 25 The next day,
during Villanueva’s continued cross, Grant’s counsel asked
Villanueva whether any of the applicants were Petroske’s customers.
25 The government had not previously produced these gun licensing
applications because none of them concerned Reichberg and it was not planning
to use them in its case-in-chief. See Fed. R. Crim. P. 16(a)(1)(E) (requiring the
government to produce documents within its possession if “(i) the item is material
to preparing the defense; (ii) the government intends to use the item in its case-in-
chief at trial; or (iii) the item was obtained from or belongs to the defendant”).
15 19-1645-cr
Villanueva denied knowing whose applications had been in his locker
or whether any of the applicants were Petroske’s customers, and he
denied working with Petroske as part of a bribery scheme.
We find no prejudice in the allegedly late disclosure of these
applications. Even if we assume that these documents should have
been disclosed earlier, the district court ably exercised its discretion
to cure any problem. 26 The district court offered the defense the
opportunity to recall Villanueva later in the trial, so that the defense
would have more time to prepare for cross-examination with the
documents in mind. Neither defendant’s counsel took the district
court up on that offer. We will not now find that the timing of the
document disclosure adversely affected Reichberg’s trial strategy,
much less warrants reversal, when the defense itself saw no need to
question Villanueva further. 27
V. Temporary admission of GX-300A
Reichberg claims that he suffered spillover prejudice when the
district court first admitted the GX-300A telephone call against Grant
and later struck GX-300A from the record. Reichberg “bears an
extremely heavy burden” in claiming spillover prejudice, needing to
See United States v. Miller, 116 F.3d 641, 681 (2d Cir. 1997) (noting that
26
“[w]hen the government has failed to comply with Rule 16, the district court has
broad discretion to determine what remedial action, if any, is appropriate,” and
that we review its determination on that score only for abuse of discretion).
See id. (noting that reversal due to a late Rule 16 disclosure “will only be
27
warranted if the nondisclosure results in substantial prejudice to the defendant,”
including “that the untimely disclosure of the statement adversely affected some
aspect of his trial strategy” (internal quotation marks and citations omitted)).
16 19-1645-cr
show “prejudice so substantial as to amount to a miscarriage of
justice.” 28 He cannot carry that burden here.
GX-300A is a recorded phone call between Grant and Alex
Lichtenstein, an individual who separately pled guilty to bribing
NYPD gun licensing division officers. 29 On the recording, Grant and
Lichtenstein discuss a program that would permit individuals caught
driving with suspended licenses to receive a summons rather than be
arrested. Grant then states that, if the program is enacted, “all the
Jews better – better erect a statue for me. I should not – I shouldn’t –
I should be able to walk in any Jewish facility and never have to
fuckin’ pay for anything. Nah, I’m just jokin’.” 30
After the government moved before trial to admit the call
against Grant, along with a host of other evidence about Grant and
Lichtenstein’s bribery relationship, the district court expressed
concern that there could be spillover prejudice with respect to
Reichberg. Specifically, the district court contemplated that the
collection of evidence about Grant and Lichtenstein’s relationship
would be akin to improper propensity evidence against Reichberg,
because it could lead the jury to “draw[] the inference that [because]
Mr. Grant accepted bribes from one member [Lichtenstein] of the
Jewish community in Brooklyn, . . . he must have accepted bribes from
28 United States v. Griffith, 284 F.3d 338, 351 (2d Cir. 2002) (quoting United
States v. Friedman, 854 F.2d 535, 563 (2d Cir. 1988)).
29 See Judgment, United States v. Lichtenstein, 16-cr-342 (SHS) (S.D.N.Y. Mar.
17, 2017), ECF No. 70.
30 Supp. App. at 37–38.
17 19-1645-cr
another member of the community, namely, Mr. Reichberg.” 31 The
district court ruled that some but not all evidence of Grant and
Lichtenstein’s relationship could be admitted.
At trial, the district court admitted the GX-300A recording
along with a transcript of the call. Before the recording was played,
the district court gave a limiting instruction to the jury, advising that
the call could be “considered with respect to defendant Grant and
only defendant Grant.” 32 Later in the trial, however, the district court
reversed course and instructed the jury that the call and transcript had
been stricken from the record and to “disregard [them] entirely.” 33
Although admitting and then striking evidence is not ideal, we
can locate no prejudice to Reichberg from this sequence of events.
“[W]e presume that juries follow limiting instructions,” but that
presumption can be overcome “where there is an overwhelming
probability that the jury will be unable to follow the court’s
instructions and the evidence is devastating to the defense.” 34 Here,
to show spillover prejudice Reichberg would need to rebut two such
presumptions arising from the limiting instructions: (1) that the jury
initially considered the call only as to Grant, and not as to him; and
(2) that the jury later disregarded the call after being instructed to do
so. Reichberg can overcome neither presumption. Nothing in the
record suggests that the jury did not follow the limiting instructions.
31Tr. of Pre-trial Conference, United States v. Reichberg, 16-cr-468 (GHW)
(S.D.N.Y. Apr. 23, 2018), ECF No. 216 at 14–15.
32 App. at 5928.
33 Id. at 6779–80.
United States v. Becker, 502 F.3d 122, 130 (2d Cir. 2007) (internal quotation
34
marks and citation omitted).
18 19-1645-cr
Indeed, the jury acquitted Grant—the defendant most directly
prejudiced by GX-300A.
VI. Confrontation Clause
Reichberg argues that the admission at trial of a series of
statements Grant made to the FBI violated his rights under the Sixth
Amendment’s Confrontation Clause. We review alleged violations of
the Confrontation Clause de novo, 35 and find none here.
The Confrontation Clause provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted
with the witnesses against him.” 36 As relevant to Reichberg’s
argument, “a defendant is deprived of his rights under the
Confrontation Clause when his nontestifying codefendant’s
confession naming him as a participant in the crime is introduced at
their joint trial, even if the jury is instructed to consider that
confession only against the codefendant.” 37
Reichberg points to five statements made by Grant to an FBI
agent, who testified to them at trial, that he claims violated his
confrontation right: that (1) Grant was introduced to Reichberg in
2005 through NYPD Commanding Officer Steven McAllister (an
unindicted co-conspirator); (2) Grant was friends with Reichberg and
socialized with him approximately ten times during the time frame of
the charged conspiracy; (3) Grant never accepted anything of value
35 United States v. Jass, 569 F.3d 47, 55 (2d Cir. 2009).
36 U.S. CONST. amend. VI.
37 Richardson v. Marsh, 481 U.S. 200, 201–02 (1987) (describing the holding
of Bruton v. United States, 391 U.S. 123 (1968)).
19 19-1645-cr
from Reichberg for free; (4) Grant knew taking anything of value from
Reichberg for free would get him in trouble with the NYPD; and
(5) Grant had purchased a set of diamond earrings from Reichberg,
but did not know if Reichberg gave him a discount on the jewelry.
None of the statements offends the Confrontation Clause
because none of them “standing alone, would clearly inculpate
[Reichberg] without the introduction of further independent
evidence.” 38 The statements, some of which appear to be exculpatory,
would need to be placed in a mosaic of other inculpatory evidence to
tend to inculpate Reichberg.
Moreover, the jury was given an immediate limiting instruction
that the agent’s testimony as to Grant’s statements could be
considered only against Grant, and not Reichberg. Such limiting
instructions generally eliminate any confrontation problem arising
from a nontestifying co-defendant’s statement “unless the admitted
evidence is clearly inculpatory as to the complaining co-defendant
and is vitally important to the government’s case.” 39 As discussed,
none of the complained-of statements was clearly inculpatory as to
Reichberg, nor was any vitally important in the context of this eight-
week trial.
38 United States v. Delgado, 971 F.3d 144, 155 (2d Cir. 2020) (internal
quotation marks, alteration, and citation omitted).
United States v. Rubio, 709 F.2d 146, 155 (2d Cir. 1983) (internal quotation
39
marks and citation omitted).
20 19-1645-cr
VII. Excluded defense experts
Reichberg argues that the district court erred by excluding the
testimony of two of his proposed expert witnesses at trial. We review
this evidentiary ruling for abuse of discretion, 40 and we find none
here.
On October 23, 2018, mere weeks before the start of trial, the
defendants provided notice of their intent to call two expert
witnesses: Robert Thursland, a former NYPD Inspector, and Rabbi
Edgar Gluck. In its disclosure, defense counsel stated that Thursland
was planning to testify about NYPD procedures on “providing police
escorts, allowing access to parades and other free events, as well as
other community policing practices.” 41 Gluck would testify “about
the relationship between the NYPD and the Jewish community,
including the day-to-day security-related, religious, and cultural
concerns that are specific to this particular community.” 42
The district court found the disclosures wanting under Federal
Rule of Criminal Procedure 16, which requires that the defense
provide the government with its expert’s “opinions, the bases and
reasons for those opinions, and the witness’s qualifications.” 43 The
district court gave defense counsel repeated opportunities to
supplement its disclosures. After defense counsel declined to take
advantage of those opportunities, the district court precluded these
40 United States v. Felder, 993 F.3d 57, 71 (2d Cir. 2021).
41 Supp. App. at 34.
42 Id. at 35.
43 Fed. R. Crim. P. 16(b)(1)(C).
21 19-1645-cr
experts from testifying. Given the multiple chances the district court
afforded the defense to fix its Rule 16 disclosures, and our agreement
with the district court that the disclosures were deficient, we will not
find an abuse of discretion in the resulting exclusion of these
experts. 44
VIII. Attorney’s potential conflict of interest
Reichberg asserts for the first time on appeal that the district
court should have investigated whether one of his attorneys had a
conflict of interest. We review this unpreserved objection for plain
error, 45 and we find none.
One of Reichberg’s attorneys at trial, Susan Necheles, also
“helped” the defense team at the related trial of Murray Huberfeld,
the hedge fund manager to whom Reichberg directed investments in
exchange for kickbacks. Necheles’s involvement in Huberfeld’s trial
was minimal—she did not enter an appearance on Huberfeld’s behalf,
and she told the district court in this case that she “never reviewed all
of the discovery material [in the Huberfeld case]. I do not know what
is in all the discovery material.” 46
It is hardly “clear or obvious” to us, as it must be on plain error
review, that the district court should have inquired further into
See Felder, 993 F.3d at 74 (noting a “district court’s broad discretion in
44
fashioning a remedy for Rule 16 failures, which may include . . . ordering the
exclusion of evidence” (internal quotation marks and citation omitted)).
45 United States v. Cohan, 798 F.3d 84, 88 (2d Cir. 2015).
Tr. of Pre-trial Conference, United States v. Reichberg, No. 16-cr-468
46
(GHW) (S.D.N.Y. Mar. 12, 2018), ECF No. 140 at 31.
22 19-1645-cr
Necheles’s involvement in the Huberfeld case. 47 A district court must
inquire further “when [it] knows or reasonably should know that a
particular conflict exists,” but it is “not . . . under a duty to inquire
whenever, as a result of creative speculation, one could imagine a
situation in which a conflict may have arisen.” 48 The district court
here would have had to engage in such creative speculation to
envision a conflict; Huberfeld and Reichberg’s interests were by all
accounts aligned, with both contesting their bribery charges to trial.
Moreover, Reichberg cannot demonstrate that the district court’s
failure to inquire further into Necheles’s alleged conflict “affected the
outcome of the district court proceedings.” 49
IX. Jury instructions
Reichberg argues that the jury instructions were erroneous in
two ways: (1) the district court failed to instruct the jury that it must
find an “agreement” to convict on the honest services charge; and
(2) the district court should not have instructed the jury that it could
convict under the “as opportunities arise” theory of bribery, which
Reichberg argues is no longer valid in the wake of McDonnell v. United
States. 50
See Cohan, 798 F.3d at 88 (quoting United States v. Marcus, 560 U.S. 258,
47
262 (2010)).
United States v. Velez, 354 F.3d 190, 197–98 (2d Cir. 2004) (internal
48
quotation marks and citation omitted).
49 Cohan, 798 F.3d at 88 (quoting Marcus, 560 U.S. at 262).
50 136 S. Ct. 2355 (2016).
23 19-1645-cr
We review jury instructions de novo, finding error if the charge
“either fails to adequately inform the jury of the law, or misleads the
jury as to a correct legal standard.” 51 We find no error here.
1. Agreement
The district court instructed the jury that the government did
“not have to prove that there was an express or explicit agreement
that the public official would perform official acts in exchange for the
bribe,” but rather had “to prove there was at least an implicit
agreement that [the official] would perform official acts in exchange
for the bribe.” 52 The district court further explained that the
government did “not have to prove an express or explicit agreement
at the time of payment that any particular official action would be
taken.” 53 Instead, “[i]t is sufficient if the defendant . . . understood
that the public official was expected, as a result of the payment to . . .
exercise particular kinds of influence as specific opportunities
arose.” 54
Reichberg asserts that these instructions erroneously failed to
require sufficient proof of an agreement, but we disagree. The
instructions here actually required the government to prove more
than is necessary under our precedent, charging the jury that it must
find the presence of “at least an implicit agreement that [the official]
would perform official acts in exchange for the bribe” (emphasis
United States v. Silver, 948 F.3d 538, 547 (2d Cir. 2020) (internal quotation
51
marks and citation omitted), cert. denied, 141 S. Ct. 656 (2021).
52 App. at 7213.
53 Id. at 7214.
54 Id.
24 19-1645-cr
added). In fact, so long as the parties to the bribe share “an
understanding that the payments were made in return for official
action, . . . it is not necessary that the public official in fact intend to
perform the contemplated official act.” 55
2. “As opportunities arise”
When the government proceeds under the “as opportunities
arise” theory of bribery, it must prove “that a public official received
a payment to which he was not entitled” and that, “at the time of the
payment,” the payor and payee “understood that [the payee] was
expected as a result of the payment to exercise particular kinds of
influence . . . as specific opportunities arise.” 56 Reichberg argues that
this theory of bribery is no longer valid after McDonnell, but he is
incorrect.
We made clear, after Reichberg took this appeal, that the “as
opportunities arise” theory of bribery remains good law following
McDonnell. As relevant here, McDonnell held that the official act
expected to be taken by a bribed public official must be “a decision or
action on a question, matter, cause, suit, proceeding or controversy”
that “involve[s] a formal exercise of governmental power” and must
concern “something specific and focused that is pending or may by
law be brought before a public official.” 57 Although this “raised the
question of whether the action to be taken in the future by a public
55 Silver, 948 F.3d at 551 (internal quotation marks, alterations, and citations
omitted).
56 Skelos, 988 F.3d at 655 (internal quotation marks, alterations, and citation
omitted).
57 McDonnell, 136 S. Ct. at 2371–72 (internal quotation marks omitted).
25 19-1645-cr
official under the ‘as opportunities arise’ theory of bribery is
compatible with the heightened specificity of ‘official act’ required by
McDonnell,” 58 we have since answered that question in the
affirmative. 59
Additionally, the particular instructions given in this case on
the “as opportunities arise” theory were appropriate. The district
court charged the jury:
The government . . . need not prove an
explicit promise to perform a particular act
was made at the time of the payment. In
other words, the government does not need
to show a direct link between a benefit
received and a specifically identified official
act. Rather, it is sufficient if [the official]
understood he was expected as a result of
the payment to exercise particular kinds of
acts or influence on behalf of the payor on
an “as needed” basis or as specific
opportunities arose. 60
By requiring the jury to find that the official “understood he
was expected as a result of the payment to exercise particular kinds
of acts or influence,” this instruction successfully required the jury to
find that the official action was to be taken on a “specific and focused
question or matter.” 61 We previously stated that “instructions
58 Skelos, 988 F.3d at 655–56.
59 Silver, 948 F.3d at 552.
60 App. at 7214.
61 Silver, 948 F.3d at 568 (emphasis omitted).
26 19-1645-cr
requiring the jury to find that the official understood that he or she
was expected to exercise particular kinds of influence would not be in
error after McDonnell” because “[t]he phrase ‘particular kinds of
influence’ connotes that the official action must relate to a sufficiently
particular, focused, or concrete question or matter.” 62 Even though
the wording of the instructions here differs from what we
recommended in Silver, 63 it does not “le[ave] open the possibility that
the jury could convict even if [the official] was expected to take official
action on any question or matter in return for the payment.”64
Accordingly, although these jury instructions were given without the
benefit of Silver’s guidance, they were not erroneous.
X. Sufficiency of the evidence
Finally, Reichberg challenges the sufficiency of the evidence on
all counts of conviction. We review the sufficiency of evidence de
novo, but in doing so “view the evidence in the light most favorable
to the government, crediting every inference that could have been
drawn in the government’s favor, and deferring to the jury’s
62 Id. at 568 n.19 (emphasis in original).
Id. at 568 (“The jury should have been instructed that, to convict on
63
honest services fraud, the Government must prove that, at the time the bribe was
accepted, [the official] promised to take official action on a specific and focused
question or matter as the opportunities to take such action arose.” (emphasis in
original)).
64Skelos, 988 F.3d at 656 (emphasis in original) (finding erroneous
“instructions requir[ing] only that [the official] be expected to ‘perform official acts
in exchange for the property’”); see also Silver, 948 F.3d at 568–69 (faulting
instructions requiring the jury to find that the official “was ‘expected to exercise
official influence or take official action for the benefit of the payor’” for permitting
the quid pro quo to be “too open-ended” (emphasis omitted)).
27 19-1645-cr
assessment of witness credibility and its assessment of the weight of
the evidence.” 65 Reichberg “bears a heavy burden” to overcome this
“exceedingly deferential” standard of review. 66 “[W]e will uphold
the judgments of conviction if ‘any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt.’” 67 Reichberg cannot bear his burden, for the reasons that
follow.
1. Bribery counts
Reichberg argues there was insufficient evidence to support his
conviction on the bribery counts 68 because the evidence does not
establish that the bribed officers took “official action,” and, even if
they did take official action, the evidence does not support the
required link between that official action and the bribe payment that
prompted it. We disagree.
The official acts the government relied upon are all proper
“official acts” under the standard set forth in McDonnell, 69 upon
United States v. Coplan, 703 F.3d 46, 62 (2d Cir. 2012) (internal quotation
65
marks omitted).
66 Id. (internal quotation marks omitted).
67 Id. (emphasis in original) (quoting Jackson v. Virginia, 443 U.S. 307, 319
(1979)).
Honest services wire fraud, 18 U.S.C. §§ 1343, 1346 and 2; conspiracy to
68
commit honest services wire fraud, 18 U.S.C. §§ 1343, 1346, 1349; and conspiracy
to pay bribes and gratuities, 18 U.S.C. § 371.
McDonnell, 136 S. Ct. at 2371–72 (“[A]n official act is a decision or action
69
on a question, matter, cause, suit, proceeding or controversy” that “involve[s] a
formal exercise of governmental power” and concerns “something specific and
28 19-1645-cr
which the jury was adequately instructed. The government alleged
the following official acts: (1) approving a gun license application; (2)
promoting or transferring a police officer; (3) making an arrest, and
then making a decision about whether to issue a desk appearance
ticket to the arrestee; (4) authorizing the use of a police helicopter for
a particular occasion; (5) authorizing the use of a police boat for a
particular occasion; and (6) deploying a police escort for a private
citizen or transporting a private citizen in a police car. All of these are
the sort of specific, formal exercises of government power that can
constitute official acts. 70
The evidence was also sufficient to support the jury’s
conclusion that the benefits Reichberg provided were linked to the
bribed officials’ exercise of particular kinds of influence in return. At
trial, Rechnitz testified that the pair provided benefits to officers
expecting to get police action in return, in the form of “results,” not
merely “access.” 71 The combination of that testimony with the timing
of the circumstantial evidence provided a reasonable basis for the jury
to infer that particular benefits were linked to particular official
actions. For example, after Reichberg paid for Grant’s home
improvements in June 2014, Grant pressured other officers to approve
Reichberg’s gun license application in subsequent months. Banks
focused that is pending or may by law be brought before a public official.”
(internal quotation marks omitted)).
70 See, e.g., id. at 2370 (allocation of government resources); United States v.
Boyland, 862 F.3d 279, 291 (2d Cir. 2017) (licenses and permits); United States v.
Fattah, 914 F.3d 112, 156 (3d Cir. 2019) (hiring government employee); United States
v. Lee, 919 F.3d 340, 357 (6th Cir. 2019) (decision about whether to bring charges),
cert. denied, 140 S. Ct. 895 (2020).
71 App. at 3360.
29 19-1645-cr
secured Grant’s promotion to a position that would benefit Reichberg
shortly after Reichberg had paid for Banks to travel to Israel. And at
a time when Reichberg and Rechnitz were steering about $60,000 in
business to Harrington’s security company, Harrington arranged for
the men to benefit from police helicopters, boats, and vehicles.
Moreover, Grant complained explicitly to Reichberg that he felt he
had not received a good enough perk in exchange for processing a
particular gun license application—a complaint that was captured on
a recorded phone call admitted into evidence at trial.
Reichberg’s efforts on behalf of one individual in particular
leave us with no doubt that this jury’s verdict was reasonable and
supported by the evidence. Eddie Sankari was arrested three times
by the NYPD, and each time, Reichberg managed to secure his release
from custody on the same day. The first arrest-and-release was on
February 16, 2014. Reichberg texted Grant “Eddie Sankari” and
“78pct,” and one minute later Grant turned around and called the
78th Precinct, where Sankari was being held, setting in motion
Sankari’s release. 72 Grant took this action shortly after Reichberg and
Rechnitz had shown up at Grant’s house dressed as elves on
Christmas with a pile of gifts for Grant and his family.
Sankari’s second arrest-and-release was on October 28, 2015.
Reichberg got in touch with McAllister, another high-ranking NYPD
contact, who asked Reichberg who he was “looking to get out.” 73
Reichberg told McAllister it was Sankari, “the floor guy from
Brooklyn,” to which McAllister responded, “What kind of floors?”
72 Supp. App. at 61.
73 Id. at 65.
30 19-1645-cr
and “Did we make any headway on the [wrist]watch?” 74 Reichberg
told McAllister that Sankari provided carpeting services and, about
the watch, that Reichberg’s “guy is trying to locate one for a good
price, he asked if we can wait until the watch show.” 75 In response,
McAllister said that Sankari would be released that night.
Sankari’s third arrest-and-release was on December 16, 2015.
McAllister indicated hesitancy about releasing him this time around,
asking, “Who is this guy we are trying to get out? He was arrested
for same thing not to [sic] long ago, maybe he needs night in jail.”76
But when Reichberg reminded McAllister that Sankari was the
“carpet guy,” 77 McAllister’s misgivings evaporated. McAllister told
Reichberg that Sankari “owes you big” 78 and added, by text message,
“Need new carpet for Summer house. Lol.” 79 Later that night, as
Sankari was being released, McAllister provided Reichberg with the
number of bedrooms and square footage he wanted to have carpeted.
In view of this collection of evidence, we have no difficulty
finding the jury’s verdict to be supported by sufficient evidence and
affirming the bribery count convictions.
2. Obstruction of justice
74 Id.
75 Id.
76 Id. at 68.
77 Id.
78 Id. at 69.
79 Id.
31 19-1645-cr
Reichberg also argues that the evidence was insufficient to
support his conviction for obstruction of justice, but we again
disagree. The evidence at trial demonstrated that when Reichberg
became aware he was under investigation, he invited his brother to
his house and turned over multiple cell phones and business cards to
his brother. On appeal, Reichberg’s principal contention is that the
evidence did not support his intent to obstruct justice because there
were other electronic devices remaining at his house for the FBI to
find that he did not give to his brother. We think the jury was
nonetheless entitled to conclude that Reichberg intended to conceal
the devices he did give to his brother. 80 That Reichberg’s efforts to
obstruct justice were incomplete does not invalidate the conviction
based on the completed acts.
CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of
conviction.
80 See 18 U.S.C. § 1512(c)(1) (making it a crime to corruptly “conceal[] a
record, document, or other object, or attempt[] to do so, with the intent to impair
the object’s integrity or availability for use in an official proceeding”).