United States v. John Bencivengo , 749 F.3d 205 ( 2014 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 13-1836
___________
UNITED STATES OF AMERICA
v.
JOHN BENCIVENGO,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
(District Court No.: 3-12-cr-00429-001)
District Court Judge: Honorable Anne E. Thompson
Argued on March 6, 2014
(Opinion filed: April 23, 2014)
Before: RENDELL, SMITH and HARDIMAN,
Circuit Judges
Jerome A. Ballarotto, Esquire (Argued)
143 Whitehorse Avenue
Trenton, NJ 08610
Counsel for Appellant
Mark E. Coyne, Esquire
Steven G. Sanders, Esquire (Argued)
United States Attorney
Office of the United States Attorney
970 Broad Street
Room 700
Newark, NJ 071020
Counsel for Appellee
OPINION
RENDELL, Circuit Judge:
Appellant John Bencivengo, former Mayor of
Hamilton Township, New Jersey, was convicted of violating,
inter alia, the Hobbs Act, 18 U.S.C. § 1951(a) and § 2, and
the Travel Act, 18 U.S.C. § 1952(a)(1) and (3) and § 2, for
accepting money from Marliese Ljuba in exchange for
agreeing to influence members of the Hamilton Township
School Board to refrain from putting the School District’s
insurance contract up for competitive bidding. For the
2
reasons set forth below, we will affirm the judgment of the
District Court.
I. Background
Bencivengo was elected Mayor of Hamilton
Township, New Jersey in 2007. Prior to his election,
Bencivengo served on the Hamilton Township School Board
and was a prominent Hamilton Township politician, serving
as Chairman of the local Republican Party. Bencivengo was
reelected as Mayor in 2011.
Bencivengo was close friends with Marliese Ljuba,
whom he had known since 2004.1 Ms. Ljuba was the
insurance broker for the Hamilton Township School District.
She personally earned between $600,000 and $700,000 in
commissions from insurance contracts with the School
District in 2011 alone. In 2011, the School District’s
insurance contracts were up for renewal. One School Board
member, Stephanie Pratico, urged the School Board to place
the contract up for competitive bidding, rather than to simply
renew the existing contract held by Ms. Ljuba’s firm.
In March of 2011, Bencivengo, who was facing
financial difficulties, asked the Township’s Director of
Community Planning and Compliance, Robert Warney, to
approach Ms. Ljuba about providing him some financial
assistance. In May 2011, the two met, and ultimately Ms.
1
These facts are largely gleaned from the trial testimony of
Ms. Ljuba and from the FBI’s recorded conversations
between Bencivengo and Ms. Ljuba. They are substantially
uncontroverted by Mr. Bencivengo, who did not testify at
trial.
3
Ljuba agreed to provide Bencivengo with $5,000. There was
some discussion of the money taking the form of a loan;
however, Ms. Ljuba suggested that, instead, Bencivengo
convince Ms. Pratico not to put the School Board’s insurance
contract up for bid. Ms. Ljuba believed that Bencivengo
could influence Ms. Pratico because “[t]he [M]ayor is the
head of the [R]epublican party in Hamilton Township. He
has a lot of political influence over anyone in a lower position
in the township government.” (Supp. App. 103.)
Bencivengo agreed to help Ms. Ljuba with Ms. Pratico.
Worried about raising alarms at the bank with large cash
withdrawals, Ms. Ljuba asked Bencivengo if she could write
him a check instead of giving him cash. Bencivengo did not
want a check made out to him, so they agreed that Ms.
Ljuba’s husband would write a check to Mr. Warney’s wife,
and put in the memo line that the check was for a “cherry
bedroom set.”
On June 29, 2011, Bencivengo approached Ms. Ljuba
again, asking for her assistance in helping him pay his
property taxes. By this time, Ms. Ljuba was cooperating with
the FBI and was recording her conversations with
Bencivengo. Ms. Ljuba again agreed to assist him, stating,
“You help me with Pratico, you got anything because you
know I am gonna need that down the road.” (Supp. App.
979.) Ms. Ljuba meant that Bencivengo would “talk to [Ms.
Pratico] and influence her not to direct the school district to
go out to bid for the brokerage contract.” (Supp. App. 138.)
Bencivengo responded that he was “helping you as much as I
can.” (Supp. App. 138.)
On July 11, 2011, Ms. Ljuba and Bencivengo had
lunch in Hamilton. Ms. Ljuba told Bencivengo that she
4
wanted to select the next person to fill a vacant seat on the
School Board, and had a particular woman in mind—the
sister of an insurance company representative who was a
political unknown in Hamilton Township. Bencivengo told
Ms. Ljuba that he would approve the woman. Ms. Ljuba
testified that she needed his approval because, “in Hamilton it
is practice that if you want a position on the school district
and you’re a [R]epublican you would go to the [M]ayor and
ask for his approval.” (Supp. App. 142.) The two also
discussed Ms. Ljuba’s planned payment to Bencivengo. The
two agreed that the money would be exchanged during their
upcoming trip to Atlantic City, because they could make it
seem as though Bencivengo had won the money gambling.
On July 28, 2011, Bencivengo met Ms. Ljuba in her
hotel room in Atlantic City, and she gave him $5,000 in $100
bills. Bencivengo informed Ms. Ljuba that he had already
talked to Ms. Pratico, and had urged Ms. Pratico that “you
have to support those who support you,” reminding her that
he had backed her when she wanted to run for School Board.
(Supp. App. 159.) Bencivengo also stated, “I’m gonna give
[Pratico] a call and see if I can get rid of her off the school
board, which would be huge, and get her in the [State]
Assembly . . . .” (Supp. App. 1005.) Bencivengo meant that
he intended to encourage Ms. Pratico to run for a seat in the
State Assembly. (Bencivengo Br. 17.)
It is undisputed that, as Mayor, Bencivengo had no
statutory power or authority over the School Board. He had
no vote on the Board, nor any official role in choosing
members of the School Board.
Bencivengo was charged with two counts of violating
the Hobbs Act and two counts of violating the Travel Act, as
5
premised on the New Jersey bribery statute, N.J.S.A. 2C:27-
2.2 On October 12, 2012, approximately one month before
trial began, the Government submitted its proposed jury
instructions. With respect to the Hobbs Act counts, the
instructions stated, in relevant part, as follows:
Extortion under color of official
right means that a public official
induced, obtained, accepted, or
agreed to accept a payment to
which he was not entitled,
knowing that the payment
accepted or to be accepted was
made in return for taking,
withholding or influencing official
acts. . . . The Government is not
required to prove that the public
official actually possessed the
official power to guarantee, deny,
or influence any official actions.
It is enough to show that [Ljuba]
reasonably believed that the
public official had the actual,
residual, or anticipated official
power to help [Ljuba] with
respect to matters pending before
a government agency.
* * *
2
Bencivengo was also charged with money laundering in
violation of 18 U.S.C § 1956(a)(1)(B)(i) and § 2, but has not
appealed his conviction on that charge.
6
A public official commits
extortion if he intentionally
obtains, accepts, or agrees to
accept money or other valuable
benefit to which he was not
entitled, knowing that the
payment was made in return for
taking, withholding, or
influencing official action.
Official action means any action
by an official relating to their
employment or function as a
public servant, to include using
one’s influence with other
government officials, or
expediting treatment of the
payor’s business with
government.
Government’s Proposed Jury Instructions, Case 3:12-cr-
00429-AET (Doc. 20-1, at 19-22) (hereinafter, Gov. Proposed
Jury Instructions) (emphasis added). Bencivengo did not
object to the Government’s proposed instructions; nor did he
file his own proposed jury instructions.
At the close of the Government’s case, Bencivengo’s
counsel moved for judgment of acquittal under Fed. R. Crim.
P. 29, on the ground that “the United States has failed to
provide sufficient evidence that a reasonable jury can
conclude that Mr. Bencivengo accepted this money in
exchange for an exercise of his official duties as Mayor of
Hamilton Township.” (Supp. App. 483.) The Government
7
opposed the motion, arguing that “[i]t is enough to show that
the payor reasonably believed that the public official had the
actual, residual or anticipated official power to help the payor
with respect to matters pending before a government agency.”
(Supp. App. 484-85.) The District Court denied
Bencivengo’s motion, stating that:
The fact that [Bencivengo] was
the Mayor of Hamilton Township
and not the school board president
or chairman does not matter. The
astounding testimony that has
been presented in this case of how
the . . . interconnectedness
between the officials of the
township, the members of the
school board, the schemes to
place persons from office in
Hamilton Township into the New
Jersey State Assembly, all
pointing to this pervasive
influence and power actively
exercised, it is surely a jury
question as to whether the
payments in this case were made
to affect official conduct of the
defendant.
(Supp. App. 487-88) (emphasis added).
At the close of evidence, the District Court instructed
the jury in accordance with the proposed jury instructions
filed by the Government. (Supp. App. 637-39.) On
8
November 20, 2012, the jury returned a verdict of guilty on
each count of the Indictment.
On appeal, Bencivengo argues that the District Court
erred by failing to grant his motion for judgment of acquittal.
With respect to his conviction under the Hobbs Act, he urges
that the Government failed to identify any official act that
was involved. He argues that, as Mayor, he had no official
authority over actions of the School Board, and therefore, had
no actual power to replace Ms. Pratico or to otherwise ensure
that Ms. Ljuba retained the insurance contract with the School
District. Bencivengo challenges his conviction under the
Travel Act for similar reasons. He states that, in agreeing to
exercise his influence over members of the School Board, he
was not “performing a governmental function,” as required by
the New Jersey bribery statute that served as the predicate for
his Travel Act conviction.
In addition, Bencivengo urges that his convictions
under the Hobbs Act and Travel Act require proof of the same
elements, and that, therefore, his conviction on both counts
violates the Double Jeopardy Clause of the Fifth Amendment.
Finally, he argues that the District Judge’s interruptions and
criticism of defense counsel during the trial unduly prejudiced
the jury against him, requiring reversal.
II. Discussion
A. Hobbs Act
1. Motion for Judgment of Acquittal
9
We exercise plenary review over Bencivengo’s claim
that the District Court erred in failing to grant his motion for
judgment of acquittal on the Hobbs Act counts and apply the
same standard as the District Court. United States v. Brodie,
403 F.3d 123, 133 (3d Cir. 2005). Accordingly, we “‘review
the record in the light most favorable to the prosecution to
determine whether any rational trier of fact could have found
proof of guilt beyond a reasonable doubt based on the
available evidence.’” Id. (quoting United States v. Smith, 294
F.3d 473, 476 (3d Cir. 2002)).
The Hobbs Act makes it a crime to “obstruct . . . delay.
. . or affect . . . commerce or the movement of any article or
commodity in commerce, by robbery or extortion.”
“Extortion” is defined as “the obtaining of property from
another, with his consent, induced by wrongful use of actual
or threatened force, violence, or fear, or under color of
official right.” 18 U.S.C. §§ 1951(a), (b)(2). The
Government urged that Bencivengo acted “under color of
official right.” On appeal, Bencivengo argues that his
position as Mayor of Hamilton Township gave him no official
power over the School Board and he should, therefore, have
been acquitted, as he did not act “under color of official
right.” Similarly, he argues that Ms. Ljuba, a savvy operator
well-versed in Hamilton Township politics, could not have
reasonably believed he had the power to cause the School
Board to decide against putting its insurance contract up for
competitive bidding. Accordingly, he argues, the
Government has failed to establish that he acted “under color
of official right.”
The Government contends that Bencivengo’s argument
is foreclosed by our opinion in United States v. Mazzei, 521
10
F.2d 639 (3d Cir. 1975) (en banc), cert. denied, 423 U.S.
1014 (1975). In that case, defendant Mazzei, a Pennsylvania
state senator, used his influence to arrange for two state
agencies to rent office space owned by property rental
company BMI. As a legislator, Mazzei had no actual power
over the leasing of rental property by state agencies. Mazzei
informed a representative of BMI that “it was the practice on
all state leases that a ten percent of the gross amount of the
rentals would be paid to a senate finance re-election
committee.” Id. at 641. BMI paid the money to Mazzei in
cash.
On appeal, Mazzei argued that the payments made to
him did not violate the Hobbs Act, as they merely represented
BMI’s “voluntary purchase of his influence in an area in
which he never pretended to have any official power.” Id. at
643. We rejected this argument, holding that, “in order to
find that defendant acted ‘under color of official right,’ the
jury need not have concluded that he had actual de jure power
to secure grant of the lease as long as it found that [BMI]
held, and defendant exploited, a reasonable belief that the
state system so operated that the power in fact of defendant’s
office included the effective authority to determine recipients
of the state leases here involved.” Id. (emphasis added). We
stated that the government had presented “sufficient evidence
to justify a finding by the jury that [BMI] could reasonably
have believed that as a concomitant of his official position
defendant possessed not mere influence over state leases but
in fact had effective power to determine to whom these leases
were awarded even though his office gave him no such de
jure power.” Id. at 644 (emphasis added).
11
Bencivengo argues that Mazzei is not controlling
because our holding in that case turned on the issue of BMI’s
reasonable belief that Mazzei had “effective power” to
determine the outcome of the decision, and “not mere
influence.” Id. He urges that, in the instant case, the
Government does not contend that Ms. Ljuba believed
Bencivengo to have “effective power” over the School
Board’s decision regarding whether to put the insurance
contract up for bid—indeed, Ms. Ljuba testified to that effect.
Instead, the Government rests its case on Ms. Ljuba’s
purchase of, and belief in, Bencivengo’s influence over the
members of the School Board by virtue of his position as
Mayor.3
While we find some merit in Bencivengo’s argument
that our holding in Mazzei did not include situations where
the victim of the extortion, here Ms. Ljuba, believed that the
public official had only influence, and not “effective power”
over the decision, that does not foreclose us from extending
its reach. We have not previously had occasion to determine
whether the power to influence by virtue of one’s office
3
See, e.g., Gov. Br. 23 (“Here, the evidence allowed a
rational jury to find that Bencivengo accepted payments from
Ljuba in exchange for promising to use his influence as
mayor to intervene with school board members . . . .”); id. at
30 (“Here, there was ample evidence from which a rational
jury could infer that Ljuba reasonably believed that
Bencivengo had the authority to perform his end of the
corrupt bargain, i.e., influencing school board members.”); id.
at 31 (“what matters was the reasonable belief in
Bencivengo’s official influence over school board members”)
(emphasis in original).
12
satisfies the “under color of official right” requirement.
However, other courts of appeals have explicitly held that the
mere agreement to exercise influence is sufficient to sustain a
conviction for extortion under the Hobbs Act. For example,
in United States v. Loftus, 992 F.2d 793 (8th Cir. 1993), a
county commissioner was convicted of Hobbs Act extortion
for accepting a bribe in exchange for agreeing to influence the
city council’s decision to rezone a property for a shopping
center development. Though he was an official of the county,
and not the city, Loftus told an undercover FBI informant that
obtaining the votes for rezoning “would simply be a matter of
swapping intergovernmental favors.” Id. at 795. On appeal,
Loftus argued that he did not accept the money “under color
of official right” because he lacked official authority over the
zoning process, and because there was no evidence that the
development’s sponsors believed that he could cause the
property to be rezoned. Id. at 796. The Court of Appeals
upheld Loftus’s conviction, stating that, “[a]ctual authority
over the end result—rezoning—is not controlling if Loftus,
through his official position, had influence and authority over
a means to that end.” See also United States v. D’Amico, 496
F.3d 95, 102 (1st Cir. 2007) (“A reasonable jury thus could
have concluded that D’Amico explicitly promised . . . that, in
exchange for the $2,500 payment, he would use his influence
as a city councilor to pressure the traffic department to pursue
the road-widening project. This conclusion is sufficient to
ground a conviction.”); United States v. Bibby, 752 F.2d
1116, 1128 (6th Cir. 1985); cf. United States v. Blackwood,
768 F.2d 131, 135-36 (7th Cir. 1985) (sustaining a Hobbs Act
conviction where “a jury could have found that Agent Ries
reasonably believed that appellant had the power, through his
official position and the connections and contacts it gave him
13
. . . , to influence the judicial decisions in the cases for which
appellant received bribes.”).4
We agree with the reasoning of our sister courts of
appeals. There is no doubt that Bencivengo had no actual de
jure or de facto power over the award of School Board
insurance contracts; nor is there evidence that Ms. Ljuba
believed he had such power. However, the record is
sufficient for a reasonable jury to find that Bencivengo’s
position as Mayor of Hamilton Township gave him influence
over members of the School Board, and that Ms. Ljuba
believed that he had such influence. Accordingly, to the
extent our decision in Mazzei does not reach the particular
facts of this case, we now hold that where a public official
has, and agrees to wield, influence over a governmental
decision in exchange for financial gain, or where the official’s
position could permit such influence, and the victim of an
extortion scheme reasonably believes that the public official
wields such influence, that is sufficient to sustain a conviction
under the Hobbs Act, regardless of whether the official holds
any de jure or de facto power over the decision. Accordingly,
4
Other circuits have held similarly in the context of other
federal bribery statutes. See, e.g., United States v. Carson,
464 F.2d 424, 433 (2d Cir. 1972) (conspiracy to travel in
interstate commerce to defraud the United States in violation
of 18 U.S.C.S. § 371) (“There is no doubt that federal bribery
statutes have been construed to cover any situation in which
the advice or recommendation of a Government employee
would be influential, irrespective of the employee’s specific
authority (or lack of same) to make a binding decision.”);
United States v. Ring, 706 F.3d 460 (D.C. Cir. 2013) (illegal
gratuity statute, 18 U.S.C. § 201 et seq.).
14
we reject Bencivengo’s argument that his lack of actual or
“effective power” over the School Board is fatal to his
conviction under the Hobbs Act. Similarly, it is enough that
Ljuba believed that Bencivengo’s position gave him
influence, and not “effective power,” over the School Board’s
decision with regard to the insurance contract.5
2. Jury Instructions
Bencivengo’s argument is also foreclosed on another
ground. Specifically, he failed to object to the Government’s
proposed jury instructions, which were filed well before trial
commenced, and which were replete with statements
indicating that a public official’s agreement to exercise
influence over a governmental decision (or the victim’s
reasonable belief in the official’s ability to exercise such
influence) is sufficient to find a violation of the Hobbs Act.
Bencivengo did not object to the proposed instructions at the
time they were filed by the Government; nor did he object to
5
Bencivengo argues that the coercion element of Hobbs Act
extortion cannot be satisfied where the purported victim of
the extortion scheme (here, Ms. Ljuba) was not threatened or
coerced in any way. This argument is foreclosed by settled
precedent. See United States v. Manzo, 636 F.3d 56, 65 (3d
Cir. 2011) (“In essence, when proceeding under a ‘color of
official right’ theory, the ‘misuse of a public office is said to
supply the element of coercion.’”); Mazzei, 521 F.2d at 644
(in a Hobbs Act prosecution based on an action under color of
official right, “any element of coercion that may be required
to establish extortion under the Hobbs Act is supplied by the
misuse of the defendant’s official power.”).
15
them at the time they were read to the jury in a form
substantially identical to what the Government had proposed.
Where a party fails to object to jury instructions, we
review whether the instructions stated the correct legal
standard for plain error. United States v. Elonis, 730 F.3d
321, 327 n.2 (3d Cir. 2013). While, as noted above, we may
not have confronted the precise situation presented in this
case, other circuits have consistently held that an agreement
by a public official to exercise influence over a governmental
decision, or the victim’s reasonable belief in the official’s
ability to exercise such influence, is sufficient to support a
conviction under the Hobbs Act. Indeed, the Government
cited several of these cases in support of its proposed jury
instructions. See Gov. Proposed Jury Instructions, at 21 n.15
(citing, inter alia, Loftus and Bibby). As described supra, we
believe the reasoning of these cases is sound, and indeed
Bencivengo has failed to point to any contrary precedent.
Accordingly, we cannot say that the District Court committed
plain error in accepting the Government’s unopposed
proposed jury instructions. Moreover, when considered for
sufficiency of the evidence, the record clearly supports the
jury’s conviction on the instructions that were given to it.
B. Travel Act
Bencivengo also claims that the District Court erred by
denying his motion for judgment of acquittal on the Travel
Act charges because he was not “performing a governmental
function” when accepting money from Ms. Ljuba in exchange
for his agreement to exert his influence over the School
Board. We apply plenary review. Brodie, 403 F.3d at 133.
16
A Travel Act violation occurs when an individual
“travels in interstate . . . commerce or uses the mail or any
facility in interstate . . . commerce, with intent to (1)
distribute the proceeds of any unlawful activity; or . . . (3)
otherwise promote, manage, establish, carry on, or facilitate
the promotion, management, establishment, or carrying on, of
any unlawful activity . . . .” 18 U.S.C. § 1952(a)(1), (3). The
Travel Act includes as an “unlawful activity”, “(2) extortion,
bribery, or arson in violation of the laws of the State in which
committed or of the United States . . . .” Here, the
Government bases its Travel Act charge on Bencivengo’s
interstate telephone calls with Ms. Ljuba and his causing Ms.
Ljuba to travel from her home in Delaware to New Jersey to
violate the New Jersey Bribery in Official and Political
Matters offense, which provides, in relevant part:
A person is guilty of bribery if he
. . . solicits, accepts or agrees to
accept from another:
a. Any benefit as consideration
for a decision, opinion,
recommendation, vote or exercise
of discretion of a public servant,
party official or voter on any
public issue or in any public
election; or
...
c. Any benefit as consideration
for a violation of an official duty
17
of a public servant or party
official . . . .
It is no defense to prosecution
under this section that a person
whom the actor sought to
influence was not qualified to act
in the desired way whether
because he had not yet assumed
office, or lacked jurisdiction, or
for any other reason.
N.J. Stat. Ann. § 2C:27-2. The statute defines a “public
servant” as “any officer or employee of government,
including legislators and judges, and any person participating
as juror, advisor, consultant or otherwise, in performing a
governmental function . . . .” N.J. Stat. Ann. § 2C:27-1(g).
Bencivengo’s claim that he cannot be convicted under
the statute because he was not “performing a governmental
function” in putting pressure on School Board members
essentially amounts to a rehashing of his argument that he did
not have any actual power over the award of School Board
insurance contracts.6 The argument is even less compelling
6
The Government argues that the phrase “performing a
governmental function” modifies the phrase “any person
participating as a juror, advisor, consultant, or otherwise,”
and does not limit the activities of “public servant[s]” or
“officer[s] or employee[s] of government.” See Gov. Br. 41.
The Government is likely correct, and in any case, it is clear
that Bencivengo was attempting to influence a “governmental
function.”
18
here, where the state statute makes clear that the lack of
actual jurisdiction over the decision is no defense to the
crime. See, e.g., State v. Schenkolewski, 693 A.2d 1173 (N.J.
Super. Ct. App. Div. 1997) (“[I]t is sufficient if the recipient
created the understanding with the briber that he could
influence matters in connection with an official duty, whether
or not he was capable of actually effecting such an action.”);
State v. Sherwin, 317 A.2d 414, 422 (N.J. Super. Ct. App.
Div. 1974) (affirming conviction under predecessor bribery
statute where Secretary of State had accepted a bribe from a
contractor in return for urging the Secretary of Transportation
to reject the lowest bid on a road project and to reopen
bidding).7 Accordingly, we reject Bencivengo’s claim that
his Travel Act conviction must be reversed because he was
not “performing a governmental function” when accepting
bribes from Ms. Ljuba.
7
Bencivengo relies on United States v. Dansker, 537 F.2d 40
(3d Cir. 1976), where we reversed a Travel Act conviction
based on the predecessor to the current New Jersey bribery
statute, on the ground that the government had failed to show
that the defendant had any actual or apparent influence over
any official decisions regarding a commercial development
project, or that the alleged bribers believed he had such
influence. In Dansker, unlike in the present case, it was
unclear from the record whether the developers were even
aware that the defendant held an official position. Id. at 49-
50. Here on the other hand, it is clear that Ms. Ljuba at least
believed that Bencivengo had influence over the School
Board, and there is no question that she knew Bencivengo
was the Mayor. Accordingly, Bencivengo’s reliance on
Dansker is misplaced.
19
C. Double Jeopardy
Bencivengo argues that his convictions for Hobbs Act
extortion and Travel Act bribery are multiplicitous because
they were based on essentially the same conduct on his part,
and therefore violate the Double Jeopardy Clause of the Fifth
Amendment. Because Bencivengo did not object on this
basis in the proceedings below, we review for plain error.
United States v. Miller, 527 F.3d 54, 60 (3d Cir. 2006).
“Where the same act or transaction constitutes a
violation of two distinct statutory provisions, the test to be
applied to determine whether there are two offenses or only
one, is whether each provision requires proof of a fact which
the other does not.” Blockburger v. United States, 284 U.S.
299 (1932). The Government correctly points out that the
Travel Act requires the Government to prove that the
defendant traveled (or caused someone to travel) in interstate
commerce, or used the mail or any facility in interstate
commerce, whereas a Hobbs Act violation occurs if the
defendant “obstructs, delays, or affects commerce or the
movement of any article or commodity in commerce.” The
Hobbs Act does not require proof of interstate travel or the
use of the mail or any other interstate facility, while the
Travel Act does not require proof of extortion that affects
interstate commerce. Rather, by its terms, the Travel Act
would theoretically apply if an individual travelled across
state lines in order to commit a purely intrastate act of
extortion or bribery.8
8
It is true that some courts have found that a defendant’s act
of crossing state lines to commit a crime is relevant to the
20
Indeed, several courts of appeals, including our own,
have upheld convictions under both the Hobbs Act and Travel
Act based on the same conduct. See, e.g., United States v.
Somers, 496 F.2d 723 (3d Cir. 1974); United States v.
Bornscheuer, 563 F.3d 1228 (11th Cir. 2009); United States
v. Millet, 123 F.3d 268 (5th Cir. 1997); United States v.
Shields, 999 F.2d 1090 (7th Cir. 1993); United States v.
Hollis, 725 F.2d 377 (6th Cir. 1984); United States v. Walsh,
700 F.2d 846 (2d Cir. 1983); United States v. Billups, 692
F.2d 320 (4th Cir. 1982); United States v. Hathaway, 534
F.2d 386, 397 (1st Cir. 1976). And we are unaware of any
cases in which a court has found that a defendant may not be
prosecuted under both the Hobbs Act and Travel Act for the
same conduct. Accordingly, it cannot be said that the District
Court’s failure to sua sponte raise and sustain a Double
Jeopardy challenge to Bencivengo’s convictions under the
Hobbs Act and Travel Act was plain error.
D. Conduct of the Trial Judge
Bencivengo maintains that the District Court denied
him a fair trial by interrupting defense counsel’s cross-
Hobbs Act jurisdictional analysis. However, these courts
have typically been careful to note that such interstate travel
does not, by itself, suffice to establish jurisdiction under the
Hobbs Act, which still requires a de minimis effect on
interstate commerce. See, e.g., United States v. Le, 256 F.3d
1229, 1237 (11th Cir. 2001); United States v. Kaplan, 171
F.3d 1351, 1356 (11th Cir. 1999).
21
examination of Ms. Ljuba, chastising him in the presence of
the jury, and criticizing him for asking questions that,
according to the District Judge, were compound or otherwise
unclear. We employ the plain error standard with respect to
Bencivengo’s arguments regarding the conduct of the District
Judge, as no objection was lodged at trial. United States v.
Nobel, 696 F.2d 231, 237 (3d Cir. 1982).
The Supreme Court has described the high bar a
litigant must meet to demonstrate that the conduct of the trial
judge has prejudiced the trial against him. In Liteky v. United
States, 510 U.S. 540, 555-56 (1994), the Court stated that:
[J]udicial remarks during the
course of a trial that are critical or
disapproving of, or even hostile
to, counsel, the parties, or their
cases, ordinarily do not support a
bias or partiality challenge. They
may do so if they reveal an
opinion that derives from an
extrajudicial source; and they will
do so if they reveal such a high
degree of favoritism or
antagonism as to make fair
judgment impossible. . . . Not
establishing bias or partiality,
however, are expressions of
impatience, dissatisfaction,
annoyance, and even anger, that
are within the bounds of what
imperfect men and women, even
after having been confirmed as
22
federal judges, sometimes display.
A judge’s ordinary efforts at
courtroom administration—even a
stern and short-tempered judge’s
ordinary efforts at courtroom
administration—remain immune.
However high the bar, the judge may not assume an advocacy
role or make it “‘clear to the jury that the court believes the
accused is guilty.’” United States v. Beaty, 722 F.2d 1090,
1093 (3d Cir. 1985) (quoting Nobel, 696 F.2d 237); see also
United States v. Wilensky, 757 F.2d 594, 598 (3d Cir. 1985)
(“By assuming the roles of judge, attorney, and witness in the
same proceeding the trial judge abandons the impartiality
with which he is charged.”). See, e.g., Reserve Mining Co. v.
Lord, 529 F.2d 181 (8th Cir. 1976) (reversing where the trial
judge conducted extensive examination of witnesses,
commented on evidence and on the credibility of defense
witnesses, and criticized the ability of plaintiff’s counsel);
Lyle v. Renico, 470 F.3d 1177, 1180-81 (6th Cir. 2006);
United States v. Dellinger, 472 F.2d 340 (7th Cir. 1972).
Examining the record as a whole, we cannot say that
the District Judge’s actions were improper. The District
Judge did not conduct any examination of defense counsel or
cross-examine any defense witnesses. Nor did the District
Judge lead Ms. Ljuba or express an opinion on any evidence
presented by the defense. The most that can be said is that
the District Judge admonished defense counsel on several
occasions to clarify questions that perhaps did not need to be
clarified, as they were clearly understood by Ms. Ljuba. See
United States v. Hynes, 467 F.3d 951 (6th Cir. 2006) (no
reversible error where the district judge, among other things,
23
“interrupted defense counsel to ask him to clarify his
questions, to avoid an argumentative tone with a witness,
[and] to proceed to a different topic because the one in
question had been exhausted . . . .”). In addition, the District
Judge twice reminded the jury that it was not to draw any
inference from her comments as to whether the Court held
any opinion as to Bencivengo’s guilt. (Supp. App. 615-16,
629.) See United States v. Ottaviano, 738 F.3d 586, 596 (3d
Cir. 2013) (noting the relevance of curative instructions in
determining whether the court’s remarks prejudiced the
defendant); United States v. Price, 13 F.3d 711, 723-24 (3d
Cir. 1994) (finding no reversible error where “there [was] no
suggestion . . . that the judge inappropriately participated in
the questioning of witnesses” and where “the judge charged
the jury that they were not to rely on their perception of his
beliefs.”). We conclude that the District Judge’s conduct did
not constitute reversible error.9
III. Conclusion
For the reasons stated above, we will affirm the
judgment of the District Court in all respects.
9
Moreover, even if a trial judge’s conduct is improper, it may
still constitute harmless error where the evidence adduced at
trial is so overwhelming that the trial judge’s behavior was
immaterial to the jury’s conclusion. See Ottaviano, 738 F.3d
at 597-98; Wilensky, 757 F.2d at 598 (noting that the judge’s
conduct was harmless when considered in light of the
“overwhelming testimony” presented by the government).
Here, the evidence of guilt was overwhelming, and indeed
Bencivengo does not even dispute the key facts underlying
his convictions.
24