United States v. Leona Beldini , 443 F. App'x 709 ( 2011 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 10-2858
_____________
UNITED STATES OF AMERICA,
Appellee
v.
LEONA BELDINI,
Appellant
_____________
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT
OF NEW JERSEY
(Crim. No. 2:09-cr-00637)
District Judge: Honorable Jose L. Linares
______________
Argued June 22, 2011
______________
Before: CHAGARES, JORDAN, and GREENAWAY, JR., Circuit Judges
(Opinion Filed: September 6, 2011)
______________
David W. Fasset
Arseneault, Whipple, Farmer, Fassett & Azzarello
560 Main Street
Chatham, NJ 07928
Counsel for Appellant
Brian J. Neary (argued)
21 Main Street Court Plaza South
Hackensack, NJ 07601
Counsel for Appellant
1
Steven G. Sanders (argued)
Office of United States Attorney
970 Broad Street Room 700
Newark, NJ 07102
Counsel for United States of America
______________
OPINION
______________
GREENAWAY, JR., Circuit Judge.
In 2009, Leona Beldini (“Beldini”) was a Deputy Mayor of Jersey City, New
Jersey, who reported directly to Jersey City Mayor Jerramiah Healy (“Healy”). At that
time, Solomon Dwek (“Dwek”), using the name “David Esenbach,” posed as a real estate
developer with the ultimate objective of bribing Mayor Healy to expedite his fictitious
real estate development. Beldini facilitated the meetings between Dwek and Healy and
received Dwek’s money through intermediaries.
Beldini’s activities led to her indictment on November 19, 2009. She was indicted
on six counts: one count of conspiracy to commit extortion; two counts of substantive
Hobbs Act violations; and three counts of federal program bribery. After a jury trial,
Beldini was convicted of two counts of bribery. She was sentenced to concurrent terms
of 36 months of imprisonment for each count.
Beldini now appeals: (1) whether the District Court erred by allegedly failing to
instruct the jury that a quid pro quo is required by 18 U.S.C. § 666(a)(1)(b); (2) whether
there is sufficient evidence that Beldini is an “agent” of a local government within the
2
meaning of 18 U.S.C. § 666(a)(1)(b) and that campaign contributions are included as
“anything of value,” within the meaning of 18 U.S.C. § 666(a)(1)(b); and (3) whether the
District Court erred by not declaring a mistrial due to alleged prosecutorial misconduct in
the rebuttal summation.
The District Court’s rulings were not in error. We will affirm.
I. BACKGROUND
We write primarily for the benefit of the parties and recount only the essential
facts.
In 2009, Beldini was a Deputy Mayor of Jersey City, New Jersey, reporting directly
to Jersey City Mayor Healy. Dwek was cooperating with the Federal Bureau of
Investigation (“FBI”) in a large-scale investigation of government corruption. Dwek
used the name “David Esenbach,” as he engaged in his role as a cooperator. Regarding
the Beldini case, he posed as a real estate developer to ask Edward Cheatam
(“Cheatam”), a Hudson County public official, and Jack Shaw (“Shaw”), a political
consultant, to facilitate meetings between Dwek and Healy, so that Dwek could bribe
Healy to expedite his fictitious real estate development — the Garfield Development
(“the Development”). Beldini facilitated meetings between Healy, Dwek, Shaw, and
Cheatam; she received money from Dwek; and she broke the money up into smaller
increments to conceal the identity of the real contributor. 1
1
New Jersey law requires a campaign to identify, for contributions exceeding $300, the
campaign donor’s name, address, occupation, employer, and employer’s occupation in
the periodic reports that the campaign files with the New Jersey Election Law
3
On March 13, 2009, Dwek met with Shaw, Beldini, and Healy. Dwek explained his
plans for the Development to Healy and Healy inquired whether the area was zoned for
the Development. Beldini mentioned that Dwek would have to obtain numerous
approvals from various city agencies in order to proceed with the Development. Cheatam
stated, “we are ready to do some things . . . with your help and your assistance.”
(Appellee's Br. at 6.) Dwek said, “[a]pprovals are the key.” (Id. at 6.)
After Healy left the meeting, Dwek tried to confirm an agreement with Beldini, and
Beldini provided Dwek with assurances of her cooperation and expressed a concern about
Dwek’s identity being revealed. Specifically, she warned Dwek of the limit for campaign
contributions. Dwek also promised Beldini that he would retain her as the exclusive
broker to sell units in the Development.
Later that day, Beldini suggested to Shaw that the payments from Dwek should be
spread among different campaign and political committees benefitting Healy’s campaign.
Beldini also referred to a then-upcoming political fundraiser, “Broadway at the Beacon,”
which was sponsored by the Jersey City Democratic Committee (“JCDC”) for Healy’s
benefit. Beldini was the Executive Producer of the event. Beldini told Shaw that Dwek
could funnel the payments several ways. Dwek could “do the Team too, you know . . .
and then you can do the, uh, JCDC, they’re all going to the same place, but they’re all
different accounts – Team Healy, Healy for Mayor, and JCDC.” (Id. at 8.) Beldini also
Enforcement Commission (“ELEC”). A campaign also must file a “Supplemental
Contributor Information” form (“Form C-1”) if it receives a donation of $1,200 or more
within ten days of an election.
4
asked Shaw to obtain specifications for Dwek’s Development, which she would discuss
with a high-level Jersey City zoning official.
On March 19, 2009, Dwek met again with Cheatam and Shaw arranging for a
$10,000 donation by check, which would then be split up into smaller checks. Shaw also
added that Beldini wanted to serve as the broker for the Development.
The next day, Dwek met Cheatam and Shaw again. Dwek gave them each $5,000
to be funneled through Beldini to Healy’s campaign. The two checks were broken up
into $2,500 increments, with each of the checks written by others to conceal the true
donor.
At their next meeting, Dwek asked Beldini what the process was for obtaining relief
from existing zoning regulations. Beldini responded that Dwek would need to contact
zoning official Tony Lambiasie, who, according to Beldini, “is certainly with the mayor.”
(Id. at 10.) Dwek also discussed the commission Beldini expected to earn for serving as
the listing broker to sell the condominium units in the Development. Later, Dwek asked
if Beldini’s assistance on issues such as voting would pose a conflict of interest. Beldini
stated, “I can definitely help you get through a lot of red tape.” (Id. at 11.)
Dwek returned to the subject of funneling payments to Healy and Beldini in
exchange for official assistance with the Development, stating that he would donate
another $10,000 to Healy as the election approached. Beldini and Dwek agreed that he
would donate to Healy through the JCDC and the money would be funneled through
Shaw and Cheatam.
5
On March 26, 2009, Cheatam delivered to Beldini two of the four $2,500 straw
donor checks used to conceal that Dwek was the source of the $10,000 payment.
On April 1, 2009, Beldini met with Dwek, Cheatam, and Shaw. Beldini confirmed
that Healy knew Dwek had funded the purchase of tickets to the “Broadway at the
Beacon” event the previous Saturday night and Beldini agreed with Dwek that Healy
“appreciate[d] the way [Dwek did] business.” (Id. at 13.) Dwek reiterated to Beldini that
he would give another $10,000 for the benefit of Healy’s campaign prior to the election
and another $10,000 after the election. Dwek would, again, funnel these payments
through Shaw and Cheatam. When Dwek said, “just make sure . . . with you and the
Mayor . . . to help me out, expediting my stuff with the Garfield,” Beldini replied,
“Absolutely.” (Id.)
On April 30, 2009, Beldini met again with Dwek, Healy, Cheatam, and Shaw.
Before Healy arrived, Beldini learned that Dwek would give Shaw another $10,000
payment for the benefit of Healy’s campaign. To conceal Dwek’s involvement, Beldini
agreed not to put Dwek’s “name on anything.” (Id. at 14.) Beldini also allayed Dwek’s
concern about receiving priority treatment by saying, “You know, one thing I can tell you
about Jerramiah Healy, he remembers his friends.” (Id.)
After the meeting, Dwek gave Shaw $10,000 in cash, which was then to be
converted into four $2,500 political contributions for Healy. Five days later, Shaw called
Beldini to confirm receipt of the money. Beldini told Shaw that the money would be
funneled to the “Healy for Mayor ’09” campaign account.
6
On May 5, 2009, Cheatam and Shaw secured checks from straw donors for the
$10,000 contribution provided by Dwek. After confirming that the checks did not exceed
the contribution limit, Beldini received them from Shaw and Cheatam and she deposited
them into the campaign account for “Healy for Mayor ’09.”
On May 7, 2009, Beldini listed the straw donor checks instead of a $10,000
contribution from Dwek. Relying on that information, an accountant for JCDC and
Healy for Mayor ’09 prepared an inaccurate Form C-1, which Beldini signed. A post-
election disclosure form, 2 which Beldini and Healy both signed, incorporated the false
information from the Form C-1.
On November 19, 2009, a grand jury returned a six-count Superseding Indictment
against Beldini. Count 1 charged a conspiracy to commit extortion under color of official
right, in violation of the Hobbs Act, 18 U.S.C. § 1951(a). Counts 2 and 3 charged
Beldini with substantive Hobbs Act violations based on the two $10,000 bribes Beldini
accepted on March 26, 2009 and May 5, 2009. Counts 4 through 6 charged Beldini with
federal program bribery, in violation of 18 U.S.C. § 666(a)(1)(B). In Counts 4 and 5,
Beldini was charged for the same two $10,000 bribes as charged in Counts 2 and 3.
Count 6 charged Beldini with corruptly agreeing to accept the thousands of dollars in real
estate commissions that she would have earned on the Development.
On February 11, 2010, the jury convicted Beldini of Counts 4 and 5, but acquitted
her of Counts 1, 2, 3, and 6.
2
This was a “Report of Contributions and Expenditures” (“Form R-1”).
7
Beldini filed a motion for a judgment of acquittal or for a new trial. Beldini
argued, first, that Counts 4 and 5 could not be proved because campaign contributions did
not constitute “anything of value” under 18 U.S.C. § 666(a)(1)(B). Second, she claimed
that the evidence failed to prove that she was an “agent” within the meaning of §
666(d)(1). Third, Beldini claimed that the prosecutor improperly misused consciousness
of guilt evidence during rebuttal summation. Fourth, Beldini claimed that the jury
instructions for Counts 4 and 5 erroneously omitted the explicit quid pro quo requirement
contained in the instructions for Counts 1 through 3.
The District Court denied Beldini’s motion. First, the Court found that, as a
matter of law, the term “anything of value” encompassed campaign contributions and that
the evidence established that Beldini was an agent. The Court found that Beldini had
forfeited her objection to the jury instructions on Counts 4 and 5, noting that there was no
indication in court transcripts or the District Court’s notes “that the defendant at any time
objected to the fact that the quid pro quo, McCormick standard was not being charged
with regard to the § 666 violations as he did with regard to the Hobbs Act.” 3 (App. at
1938:96–97.) The District Court continued, noting that “[t]he statute and the statutory
language does not require that the quid pro quo be charged,” and that, while evidence of a
quid pro quo would be sufficient, it did not seem necessary for those violations. (Id.)
According to the District Court, “even though there was no challenge to the instruction,
we are now having a post verdict challenge to the jury instructions.” (Id. at 1938:97.)
3
McCormick v. United States, 500 U.S. 257 (1991).
8
The Court held that § 666(a)(1)(B)’s corrupt intent requirement obviated the need for an
explicit quid pro quo in cases involving campaign contributions. Finally, the Court found
no prosecutorial misconduct regarding the rebuttal summation.
On June 14, 2010, the District Court sentenced Beldini to two concurrent terms of
36 months of imprisonment. The District Court entered final judgment and Beldini
timely appealed.
II. JURISDICTION and STANDARD OF REVIEW
The District Court had jurisdiction over this case pursuant to 28 U.S.C. § 3231.
This Court has jurisdiction pursuant to 28 U.S.C. § 1291.
“When reviewing a question of law, or a District Court's interpretation of a statute,
we exercise plenary review.” United States v. Soto, 539 F.3d 191, 194 (3d Cir. 2008)
(citing United States v. Rivera Constr. Co., 863 F.2d 293, 295 n.3 (3d Cir. 1988)). This
Court can only review an alleged error that was “not brought to the court’s attention” at
trial if “appellant demonstrates that (1) there is an ‘error’; (2) the error is ‘clear or
obvious, rather than subject to reasonable dispute’; [and] (3) the error ‘affected the
appellant’s substantial rights, which in the ordinary case means’ it ‘affected the outcome
of the district court proceedings. ’” United States v. Riley, 621 F.3d 312, 322 (3d Cir.
2010) (quoting United States v. Marcus, --- U.S. ----, 130 S. Ct. 2159, 2164 (2010))
(alteration in original). “If all three conditions are met, an appellate court may then
exercise its discretion to notice a forfeited error, but only if (4) the error seriously
affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Johnson v.
9
United States, 520 U.S. 461, 467 (1997) (quotation marks and citation omitted); see
Riley, 621 F.3d at 322.
“Any non-contemporaneous objections [to prosecutorial misconduct] are subject
to plain error review.” United States v. Brennan, 326 F.3d 176, 182 (3d Cir. 2003) (citing
Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 731–32 (1993)). Because
Beldini’s counsel did not object to the alleged prosecutorial misconduct during rebuttal
summation, we will review it for plain error.
In examining a sufficiency of the evidence claim, “[i]t is not for us to weigh the
evidence or to determine the credibility of witnesses.” Soto, 539 F.3d at 194 (quoting
United States v. Dent, 149 F.3d 180, 187 (3d Cir. 1998)) (internal quotation marks
omitted). “[T]he critical inquiry on review of the sufficiency of the evidence to support a
criminal conviction must be not simply to determine whether the jury was properly
instructed, but to determine whether the record evidence could reasonably support a
finding of guilt beyond a reasonable doubt . . . [T]he relevant question is whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 318-19 (1979).
III. ANALYSIS
A. Jury Instructions
Beldini argues that jury instructions for § 666 should have included an explicit and
express quid pro quo requirement. She contends that the § 666 jury instructions were
10
given in error because there was no admonition that the jury could not convict unless it
found that Beldini had accepted the campaign contributions “in exchange for” or “in
return for” official action. See Appellant’s Br. at 34–36. Beldini also asserts that,
because the jury instruction used the phrase “intended at least in part to be influenced or
rewarded,” the instruction was for gratuity instead of bribery.
i. Preservation
Our standard of review on this issue turns, in part, on whether Beldini preserved
this issue by objecting to the jury instructions. See FED. R. CRIM. P. 30(d). Under Rule
30(d), “[a] party who objects to any portion of the instructions or to a failure to give a
requested instruction must inform the court of the specific objection and the grounds for
the objection before the jury retires to deliberate.” Id. A party’s failure to object as
required by Rule 30(d) “precludes appellate review, except as permitted under Rule
52(b).” Id. We review an alleged error that was “not brought to the court’s attention” at
trial for plain error under Federal Rule of Criminal Procedure 52(b). Marcus, 130 S. Ct.
at 2164; see Riley, 621 F.3d at 321–22.
In United States v. Russell, 134 F.3d 171 (3d Cir. 1998), we held that, where
defense counsel “engaged the court and prosecutor in a colloquy regarding an alleged
error in the charge, the issue was sufficiently preserved.” Id. at 178, 180. “[T]he crux
of Rule 30 is that the district court be given notice of potential errors in the jury
instructions, not that a party be ‘required to adhere to any formalities of language and
style to preserve his objection on the record.’” Id. at 178 (citing United States v. O’Neill,
11
116 F.3d 245, 247 (7th Cir. 1997) (internal citations omitted)). “However, an objection
must nevertheless be sufficiently precise to allow the trial court to address the concerns
raised in the objection.” United States v. Jake, 281 F.3d 123, 130 (3d Cir.
2002) (citing FED. R. CRIM. P. 30)). “[C]ounsel is required to draw the court’s attention
to a specific instruction, or to a problem with an instruction, in order to put the court on
notice so that a possible error may be corrected before the jury begins to deliberate.”
United States v. Davis, 183 F.3d 231, 252 (3d Cir. 1999). “Without a clearly articulated
objection, a trial judge is not apprised sufficiently of the contested issue and the need to
cure a potential error to avoid a new trial.” Government of V.I. v. Knight, 989 F.2d 619,
631 (3d Cir. 1993).
The parties have expressed vastly different views on whether Appellant’s
objections to the jury instructions, now expressly articulated, were preserved at trial.
Beldini’s counsel claims the issue is preserved based on the following statement
concerning counts involving campaign contributions:
Counts two, three, four, and five specifically deal with the
campaign contributions. That is why I am advancing the
notion of the campaign contributions. It is four of six counts,
and I think that really locate — to use this word — I am not
going to use it — not to give its primacy, I think could fail to
focus the jury on that aspect.
(Id. at A1657.) 4
This minimal allusion to the § 666 Counts during discussion of the Hobbs Act
charges did not put the District Court on notice to correct a possible error. Moreover, this
4
Counts 2 and 3 refer to Hobbs Act violations. Counts 4 and 5 refer to violations of 18
U.S.C. § 666.
12
was the only conceivable reference made to the § 666 Counts during the quid pro quo
colloquy. Beldini’s attorney did not state that a quid pro quo instruction was necessary
for a § 666 charge. Although Beldini’s counsel specified the portions of the Hobbs Act
charges that were problematic, counsel never referenced any specific § 666 charge or line
to which Beldini objected. The District Court was not reasonably put on notice of the
objection.
To preserve this issue for our consideration, Beldini would have needed to
articulate the specific grounds for including quid pro quo language in § 666 jury
instructions in order to put the District Court on notice of the potential problem.
The District Court’s indication that it noted Beldini’s “objection” does not imply
that an objection to the § 666 instruction was preserved. (App. at A1657.) It seems
instead that the District Court was merely noting Beldini’s objection to not including quid
pro quo language in certain Hobbs Act jury instructions, which had been discussed at
length.
Unlike the colloquy in Russell, Beldini’s reference to Counts 4 and 5 was not
“tantamount to an objection.” See Russell, 134 F.3d at 180. The colloquy in Russell is
distinguishable from the colloquy at issue here. In Russell, we found that “it [was]
undeniable that [Russell’s counsel’s] remarks were sufficient to put the trial court on
notice that, at the very least, he did not believe that the charge as given was in
compliance with our [precedent].” Id. at 179 n.5. The colloquy in Russell revolved
around the same jury instruction as the one Russell challenged on appeal. The colloquy
13
in Beldini revolved around the Hobbs Act jury instructions, not the § 666 jury
instructions. Russell’s counsel specified the precedent that allegedly required a change in
the specific jury instruction being discussed; Beldini’s counsel did not do the same for the
§ 666 instructions.
During a hearing regarding several post-conviction motions on May 24, 2010, The
District Court emphasized that there had been no objection to the § 666 instructions prior
to the jury retiring. 5 Beldini’s counsel gave justifications for not objecting to the absence
of a quid pro quo requirement in the §666 jury instruction. (App. at A1924–25:39–42.)
When the District Court asked why Beldini’s counsel did not request a McCormick
instruction before the jury was charged, Beldini’s counsel did not argue that he had made
5
The District Court asked Beldini’s counsel:
Why not tell me [that the Hobbs Act and §666 should both
receive McCormick instructions] before I instruct the jury
then?
Why did you sit on your hands, never make a request that I
charge a McCormick type charge to the jury in connection
with the 666?
You never objected to that issue when it dealt with 666 or
suggested that that is something that the jury should consider
in the context of the bribery statute. When I specifically
asked you about that, your problem was with the title of the
bribery statute. . . .
Isn’t it a little bit unfair to the Court to now say, Well, Judge,
maybe we should have charged the jury differently, now that I
think of it, I made all of my arguments with regard to the
Hobbs Act. That’s really what I was concerned about, but
now that she has been convicted of bribery, now I want to talk
about a different jury instruction, which should have been
given, which I passed on.
(App. at A1924–25:39–42.)
14
any prior objection to the absence of a McCormick instruction in the § 666 charge or
refer to any previous statement preserving the issue.
Because Beldini did not object to the § 666 jury instructions or put the District
Court on notice of the issue prior to the jury retiring to deliberate, appellate review of the
§666 jury instructions is precluded, except for plain error as permitted under Rule 52(b).
See FED. R. CRIM. P. 30(d).
ii. Plain Error Analysis
As noted earlier, a defendant must show: “ (1) an error; (2) that is plain; (3) which
affects substantial rights; and (4) seriously impairs the fairness, integrity, or public
reputation of judicial proceedings.” United States v. Cesare, 581 F.3d 206, 209 (3d Cir.
2009) (citing Olano, 507 U.S. at 732).
That the error is plain means that it is “clear or obvious, rather than subject to
reasonable dispute.” Marcus, 130 S. Ct. at 2164; Riley, 621 F.3d at 22 (quoting Marcus,
130 S. Ct. at 2164) (internal quotation marks omitted). Under Rule 52(b), “[a] deviation
from a legal rule is error.” See United States v. Retos, 25 F.3d 1220, 1229 (3d Cir. 1994)
(internal quotation marks and citation omitted). Furthermore, “[a]n ‘error’ is plain, clear,
or obvious ‘where the error was unclear at the time of trial but becomes clear on appeal
because the applicable law has been clarified.’” Riley, 621 F.3d at 323–24 (quoting
Retos, 25 F.3d at 1230). That the error “affected the appellant's substantial rights, . . . in
the ordinary case means” it “affected the outcome of the district court proceedings.”
Marcus, 130 S. Ct. at 2164; Riley, 621 F.3d at 321–22.
15
1. Legal Standard
Under 18 U.S.C. § 666(a)(1)(B), whoever
(1) being an agent of an organization, or of a State, local, or
Indian tribal government, or any agency thereof—
***
(B) corruptly solicits or demands for the benefit of any
person, or accepts or agrees to accept, anything of value from
any person, intending to be influenced or rewarded in
connection with any business, transaction, or series of
transactions of such organization, government, or agency
involving anything of value of $5,000 or more
***
shall be fined under this title, imprisoned not more than 10
years, or both.
18 U.S.C. § 666(a)(1)(B).
In McCormick, the Supreme Court held that, when an official receives a campaign
contribution, a quid pro quo is necessary for conviction under the Hobbs Act. 6 In United
States v. Sun-Diamond Growers of California, 526 U.S. 398 (1999), the Court held the
same for convictions under 18 U.S.C. § 201(c)(1)(A) (the “illegal gratuity statute”). 7
Neither McCormick nor Sun-Diamond determined whether a quid pro quo is required for
§ 666. The Supreme Court has not addressed whether reasoning analogous to that of
McCormick or Sun-Diamond requires a quid pro quo requirement for § 666.
6
In McCormick, the Supreme Court interpreted Congress’s intent in using the phrase
“under color of official right” in the Hobbs Act to occur for political contributions “only
if the payments are made in return for an explicit promise or undertaking by the official
to perform or not to perform an official act.” 500 U.S. at 272–73.
7
In Sun-Diamond, the Court held that the illegal gratuity statute required a quid pro quo
because the § 201(c)(1)(A) prohibition on gratuities given “for or because of any official
act performed or to be performed” seemed “pregnant with the requirement that some
particular official act be identified and proved.” 526 U.S. at 406.
16
Courts of Appeals are split regarding whether a conviction under § 666 requires
proof of a quid pro quo. The Fourth Circuit 8 and, to a lesser extent, the Second Circuit 9
have held that bribery convictions under § 666 require some proof of a quid pro quo. In
contrast, the Sixth, 10 Seventh, 11 Eighth, 12 and Eleventh 13 Circuits have held that
conviction under § 666 does not require proof of a quid pro quo.
iii. Discussion
Here, there is no plain error. There is an earnest circuit split on whether § 666
does or does not require proof of a quid pro quo. There is no Supreme Court or Third
Circuit precedent on the point. Neither the Supreme Court nor any Court of Appeals has
8
United States v. Jennings, 160 F.3d 1006, 1014 (4th Cir. 1998) (holding that the
“corrupt intent” requirement in § 666 requires the government to prove a quid pro quo).
9
In United States v. Ganim, 510 F.3d 134, 151 (2d Cir. 2007) (holding there was no plain
error in a jury instruction that stated that the government must prove a corrupt intent,
which “means the intent to engage in some specific quid pro quo”).
10
United States v. Abbey, 560 F.3d 513, 520 (6th Cir. 2009) (“while a ‘quid pro quo of
money for a specific . . . act is sufficient to violate [18 U.S.C. § 666(a)(1)(B)],’ it is ‘not
necessary’” (quoting United States v. Gee, 432 F.3d 713, 714 (7th Cir. 2005))). The
Sixth Circuit agrees with the Second Circuit that “Sun-Diamond’s heightened quid pro
quo standard is inapplicable to . . . 18 U.S.C. § 666” because Sun-Diamond “concerned a
markedly different statute.” Id. at 521.
11
Gee, 432 F.3d at 714 (“A quid pro quo of money for a specific legislative act is
sufficient to violate the statute, but it is not necessary.”).
12
United States v. Zimmerman, 509 F.3d 920 (8th Cir. 2007) (holding that the
government was not required to prove any quid pro quo for conviction under §
666(a)(1)(B)).
13
United States v. McNair, 605 F.3d 1152, 1188 (11th Cir. 2010) (“there is no
requirement in § 666(a)(1)(b) or (a)(2) that the government allege or prove an intent that
a specific payment was solicited, received, or given in exchange for a specific official act,
termed a quid pro quo.”); see also United States v. Siegelman, 640 F.3d 1159, 1170 (11th
Cir. 2011) (noting that “the Supreme Court has not yet considered whether the federal
funds bribery, conspiracy or honest services mail fraud statutes require a similar ‘explicit
promise’ [by the official to perform or not perform an official act].”).
17
held that McCormick requires proof of an explicit quid pro quo for a conviction under §
666. Thus, any alleged “error was unclear at the time of trial” and remains unclear on
appeal because the applicable law has not been clarified. See Riley, 621 F.3d at 323–
24 (quoting Retos, 25 F.3d at 1230).
Failing to instruct the jury that an express quid pro quo is required under § 666 is
not a “deviation from a legal rule.” Retos, 25 F.3d at 1229. Even if this failure is
deemed an error, it is not a clear or obvious error because the Supreme Court has not held
that an express quid pro quo is required even for Hobbs Act or § 201 convictions.
Beldini has neither shown that failing to require proof of a quid pro quo in § 666
jury instructions is error, nor, if it is error, has she shown that the error is plain, clear, or
obvious. 14 See Marcus, 130 S. Ct. at 2164. Because Beldini has not shown plain error,
we need not inquire whether the alleged error affects substantial rights or seriously
impairs the fairness, integrity, or public reputation of judicial proceedings.
14
In addition to the quid pro quo argument, Beldini has not established plain error due to
the jury instruction’s use of the word “rewarded.” This Court has no precedent
establishing that use of the word “rewarded” under § 666 is limited to gratuity and does
not refer to bribery. The Model Criminal Jury Instructions for 18 U.S.C. § 666(a)(1)(B)
also use the word “rewarded” in the charge for bribery. 3d Cir. Model Crim. Jury Instr.
6.18.666A1B. Even if the word “reward” connotes gratuity and not bribery, the use of
that word in the instruction was not plain error because a jury would not have known or
assumed that “reward” had that meaning and there was no instruction to that effect. See
Ganim, 510 F.3d at 151 (holding that it was not clear or obvious that using the word
“reward” was error in § 666 bribery jury instructions). There is no clear or obvious error
in using the word “reward” in § 666 jury instructions. Lastly, because Beldini has not
shown plain error regarding the use of the word “rewarded,” we need not inquire whether
that alleged error affects substantial rights or seriously impairs the fairness, integrity, or
public reputation of judicial proceedings.
18
B. Sufficiency of the Evidence
Beldini argues that the evidence at trial was deficient in two respects — she lacks
authority over local funds and is, thus, not an “agent” for the purposes of § 666. Beldini
also asserts that money given through local campaign contributions is not “anything of
value” under § 666. Beldini posits that these failures regarding sufficiency of the
evidence warrant reversal because essential elements of the crime are not present beyond
a reasonable doubt.
When applying criminal laws, courts generally “must follow the plain and
unambiguous meaning of the statutory language. ‘[O]nly the most extraordinary showing
of contrary intentions’ in the legislative history will justify a departure from that
language.” Salinas v. United States, 522 U.S. 52, 57 (1997) (quoting United States v.
Albertini, 472 U.S. 675, 680 (1985)) (internal quotation mark omitted) (alteration in
Salinas). A statute is unambiguous if it is “plain to anyone reading the Act” that the
statute encompasses the conduct at issue. Salinas, 522 U.S. at 60 (quoting Gregory v.
Ashcroft, 501 U.S. 452, 467 (1991)). “No rule of construction . . . requires that a penal
statute be strained and distorted in order to exclude conduct clearly intended to be within
its scope.” Id. at 59 (quoting United States v. Raynor, 302 U.S. 540, 552 (1938))
(internal quotation marks omitted). Section 666, however, is extremely broad in scope.
United States v. Vitillo, 490 F.3d 314, 321 (3d Cir. 2007).
19
i. “Agent”
Beldini contends that § 666 does not apply to her because, as a person who lacks
authority over local funds, she is not an “agent.” Beldini argues that Salinas did not
determine whether § 666 requires some connection between a bribe and expenditure of
federal funds. The Supreme Court stated in Salinas, however, that § 666’s “expansive,
unqualified language, both as to the bribes forbidden and the entities covered, does not
support the interpretation that federal funds must be affected to violate § 666 (a)(1)(B).”
Salinas, 522 U.S. at 56–57.
Under § 666, the term “agent” is defined as “a person authorized to act on behalf
of another person or a government and, in the case of an organization or government,
includes a servant or employee, and a partner, director, officer, manager, and
representative.” 18 U.S.C. § 666(d)(1). This list is not exhaustive. Vitillo, 490 F.3d at
323.
A person does not have to control federal funds to be considered an “agent” under
§ 666(d)(1). Vitillo, 490 F.3d at 323. Included in the § 666 term “agent” is “an
employee of any level from the lowest clerk to the highest administrator.” United States
v. Brann, 990 F.2d 98, 101 (3d Cir. 1993). 15 Moreover, state and local officials can be
agents for the purposes of § 666. Salinas, 522 U.S. at 58.
15
A person does not have to hold a position of trust to be an agent. Brann, 990 F.2d at
101. An independent contractor who is authorized to act on behalf of a §666(c) entity or
agency is an agent under § 666. See Vitillo, 490 F.3d at 323.
20
The Fifth Circuit has held that, for an individual to be an “agent” under § 666, the
person must be “authorized to act on behalf of [the agency] with respect to its funds.”
United States v. Whitfield, 590 F.3d 325, 344 (5th Cir. 2009) (quoting United States v.
Phillips, 219 F.3d 404, 411 (5th Cir. 2000)) (internal quotation marks omitted).
However, the Fifth Circuit still has agreed that the“[l]ack of a direct connection between
funds under ones control and the federal funds in question does not preclude them from
being considered agents for the purposes of section 666.” Id. at 345.
At the time of the alleged bribery, Beldini was one of three Jersey City deputy
mayors. Under Vitillo, Beldini need not control federal funds to be an agent for the
purposes of § 666. Despite Beldini’s arguments, the current precedent of this Court and
the Supreme Court do not require any nexus between conduct prohibited by § 666 and
federal funds. See Salinas, 522 U.S. at 56–57. The plain and unambiguous language of
the statute would include Beldini as an agent because she was authorized to act on behalf
of Healy and Jersey City. Beldini does not argue otherwise in her brief. That the deputy
mayor of a city would be an agent under the terms of the statute would likely be plain to
anyone reading § 666.
Even if we were to align with the Fifth Circuit in Whitfield and hold that a person
is an agent only in so far as the person performs functions involving agency funds, there
was still sufficient evidence to consider Beldini an agent because the government put
forth evidence at trial that Beldini was performing functions involving agency funds. The
government put forth evidence showing that Beldini took the alleged bribes on behalf of
21
Healy, agreed to help with approvals, had influence with Healy, and agreed to cut “red
tape” in return for the payments. (Appellee’s Br. at 11.)
On this trial record, the evidence could reasonably support a finding that Beldini is
an agent for the purposes of § 666. A rational trier of fact could have found this essential
element beyond a reasonable doubt.
ii. “Anything of value”
Beldini argues that money given through local campaign contributions is not
“anything of value” under § 666 because it is similar to political loyalty and services.
This argument has no merit.
Section 666 prohibits accepting or agreeing to accept “anything of value.” §
666(a)(1)(B). Federal funds do not have to be affected for a § 666(a)(1)(B) violation to
have occurred. Salinas, 522 U.S. at 56–57. Moreover, the statute does not impose limits
on the type of bribe offered. Id. at 57.
The campaign contributions at issue are thousands of dollars. Beldini’s
proposition that this money is not a thing of value strains credulity. As the Supreme
Court stated in Salinas, “anything of value” “encompasses all transfers of personal
property or other valuable consideration.” Salinas, 522 U.S. at 57. Neither the Supreme
Court nor any Court of Appeals has held that money is not “anything of value” under §
666. To hold otherwise would be to “distort[] [§ 666] in order to exclude conduct clearly
intended to be within its scope.” Id. Record evidence reasonably supports a finding that
22
the campaign contributions were something of value for the purposes of § 666. A
rational trier of fact could have found this essential element beyond a reasonable doubt.
C. Prosecutorial Misconduct
During rebuttal summation, without objection, the government stated that Beldini
“agreed not to disclose [Dwek’s] name” as the source of the contributions on official
forms and, thus, “agree[d] to break the law.” (App. at A1855.) The government then
asked, “What does that tell you about her understanding of the true nature of this
arrangement? . . . [I]f the defendant saw these as simply legitimate political contributions,
nothing more, that everything here was on the up and up, then why do we need to hide
the source of the payments?” (Id. at 1855–56.)
The District Court instructed the jury that it could consider evidence of Beldini’s
acts of concealment to infer consciousness of guilt. Beldini does not challenge that
instruction. Instead, Beldini contends that the government told the jury, in its rebuttal
summation, to convict Beldini based on uncharged election violations. Beldini also
argues that the jury’s question to the District Court about election law shows that the
rebuttal summation encouraged the jury to convict Beldini based on the alleged election
violations. Beldini asserts that a media report stating that the jury seemed focused on
campaign law violations also shows that the rebuttal summation included prosecutorial
misconduct on which the jury based its decision.
23
i. Legal Standard
“Prosecutorial misconduct does not always warrant the granting of a mistrial.”
United States v. Zehrbach, 47 F.3d 1252, 1265 (3d Cir. 1995). If it has been determined
that a prosecutor’s remarks were improper, the court will weigh the remarks under a
harmless error standard. Id. at 1264. An appellate court should not exercise its
“[s]upervisory power to reverse a conviction . . . when the error to which it is addressed is
harmless since, by definition, the conviction would have been obtained notwithstanding
the asserted error.” United States v. Hasting, 461 U.S. 499, 506 (1983).
To find that a lower court erred in failing to order a mistrial for prosecutorial
misconduct, a court “must first be convinced that the prosecution did in fact misconduct
itself.” United States v. Rivas, 493 F.3d 131, 139 (3d Cir. 2007). When considering
whether a prosecutor's remarks in summation were improper, “the appropriate inquiry is
whether such remarks, in the context of the entire trial, were sufficiently prejudicial to
violate defendant’s due process rights.” United States v. Scarfo, 685 F.2d 842, 849 (3d
Cir. 1982).
ii. Discussion
When read in context, the portion of the rebuttal summation which Beldini argues
is misconduct is nothing more than a consciousness of guilt argument. The focus on the
evidence of concealment of Dwek as the source of the contributions is just that.
Encouraging the jury to consider that concealment was not misconduct. The District
24
Court had already instructed the jury that it could consider such evidence to infer
consciousness of guilt.
The government did not encourage the jury to convict Beldini under § 666 based
on violations of state election law. The government, instead, seems to reference the
election law violations only to posit that the evidence of Beldini’s efforts to conceal that
Dwek was the source of the payments shows her consciousness of guilt due to her § 666
violations.
The rebuttal summation notwithstanding, there is a considerable amount of
evidence showing that Beldini violated § 666, including video and audio recordings. It is
unlikely that the jury convicted Beldini because of uncharged election violations
referenced in the rebuttal summation when the jury acquitted Beldini on four Counts of
the indictment and convicted Beldini for two Counts under § 666. Beldini has put forth
no evidence showing that there was prosecutorial misconduct or that the jury made its
decision on a legally impermissible basis.
The District Court did not err by declining to declare a mistrial due to
prosecutorial misconduct. Even assuming it was an error, however, Beldini has not
shown that the error is plain, clear, or obvious. See Marcus, 130 S. Ct. at 2164. Because
Beldini has not shown plain error, we need not determine whether the alleged error
affects substantial rights or seriously impairs the fairness, integrity, or public reputation
of judicial proceedings.
25
IV. CONCLUSION
For the reasons set forth above, we will affirm the judgment of the District Court.
26