botti reply brief

8/2/2019 Botti Reply Brief

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10-3891In theUnited States Court of Appealsfor the Second CircuitUnited States of America,

Appellee,

v.

James Botti,

Defendant - Appellant.

On Appeal from the United States District Court

for the District of Connecticut

REPLY BRIEF FOR APPELLANT JAMES BOTTI

Becker Gallagher Cincinnati, OH Washington, D.C. 800.890.5001

GEORGEW.GANIM,JR

THEGANIMLAWFIRMP.C.

4666MAINSTREET

BRIDGEPORT,CT06606

(203)372-7772

Counsel for the Appellant

Case: 10-3891 Document: 76 Page: 1 12/27/2011 482758 28


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TABLE OF CONTENTS

TABLE OF CONTENTS ........................................................................................... iTABLE OF AUTHORITIES ................................................................................... iii1. ARGUMENT ................................................................................................... 1

I. THE CHARGE TO THE JURY WAS ERRONEOUS AS AMATTER OF LAW AND GOES TO THE HEART OFWHETHER THE DEFENDANT WAS GUILTY OF HONESTSERVICES MAIL FRAUD. THIS WAS NOT HARMLESSERROR. .................................................................................................1

A. The Erroneous Language in the Charge to the Jury ...................4B. The Governments Theory to Convict the Defendant of

Honest Services Mail Fraud Rested in Part on Non-Bribery Type Acts .......................................................................5

C. The Non-Bribery Evidence Was Not Offered to Supporta Traditional Mail Fraud Theory.............................................. 10

II. THE GOVERNMENT'S CLAIM THAT IT'S HONESTSERVICES MAIL FRAUD THEORY WAS LIMITED TO ABRIBE THEORY IS INCONSISTENT WITH ITSPROPOSED REQUESTS TO CHARGE THE JURY ....................... 11

III. THE VERDICT FORM AND THE JURY'S FAILURE TOREACH A VERDICT ON THE BRIBERY COUNTSCONSTITUTES ONE MORE FACTOR FOR THIS COURTTO CONSIDER IN DECIDING TO GRANT THEDEFENDANT A NEW TRIAL. .........................................................16

IV. THE EXAMPLE USED BY THE GOVERNMENT IN ITSBRIEF TO ILLUSTRATE ITS CLAIM THAT THE JURYCOULD HAVE FOUND THE DEFENDANT GUILTY OF ABRIBERY SCHEME WITHOUT FINDING THAT THEDEFENDANT COMMITTED BRIBERY, EITHER IGNORESOR MISCONSTRUES THE ELEMENTS OF 18 U.S.C. 666 .........18



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2. CONCLUSION ..............................................................................................22CERTIFICATE OF COMPLIANCE ....................................................................... 23CERTIFICATION OF SERVICE............................................................................ 24



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TABLE OF AUTHORITIES

Cases

Chapman v. California,386 U.S. 1824 (1967) ...................................................................................... 3

United States v. Bahel,No. 083327, __ F.3d __, 2011 WL 5067095 (2d Cir. Oct. 26, 2011) ......... 13

United States v. Black,130 S. Ct 2963 (2010) ...................................................................................... 3

United States v. Bruno,

661 F.3d 733 (2d Cir. Nov. 16, 2011) ......................................................... 1, 2

United States v. Langsford,647 F.3d 1309 (11th Cir. 2011) ..................................................................... 13

United States v. Riley,621 F.3d 312 (3d Cir.2010) ............................................................................. 1

United States v. Skilling,130 S.Ct. 2896 (2010) .............................................................................passim

United States v. Wilkes,No. 0850063, __ F.3d __, 2011 WL 4953070 (9th Cir. Oct. 19, 2011) ...... 13

Yates v. United States,354 U.S. 298 (1957)......................................................................................... 3

Yeager v. United States,129 S. Ct 2360 (2009) .................................................................................... 16

Statutes

18 U.S.C. 371 ........................................................................................................... 6

18 U.S.C. 666 ..................................................................................................passim(a)(2) .............................................................................................................. 21



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1. ARGUMENT

I. THE CHARGE TO THE JURY WAS ERRONEOUS AS A

MATTER OF LAW AND GOES TO THE HEART OF

WHETHER THE DEFENDANT WAS GUILTY OF HONEST

SERVICES MAIL FRAUD. THIS WAS NOT HARMLESS

ERROR.

The Court failed to charge the jury on the most important element of Honest

Services Mail Fraud as limited in application by United States v. Skilling, 130

S.Ct. 2896 (2010). That is, it failed to instruct the jury that in order for a defendant

to be guilty of Honest Services Mail Fraud, it is required to be by way of a bribery

or kickback scheme.1

The Skilling decision was most recently applied by a panel of this Circuit in

the case of United States v. Bruno, 661 F.3d 733 (2d Cir. Nov. 16, 2011).2

In that

decision, the Court stated:

"... the district court did not require the jury to find that Brunoaccepted bribes or kickbacks to be convicted of honest services fraud.In light of Skilling, this failure to limit honest services fraud to bribesand kickbacks was error. See United States v. Riley, 621 F.3d 312,324 (3d Cir.2010) (finding plain error where the fraudulent act is thenon-disclosure of a conflict of interest, and the jury was notinstructed on the distinctions drawn by Skilling ). Accordingly, wevacate Bruno's conviction on Counts Four and Eight. United Statesv. Bruno, 661 F.3d at 740.

1 Since there is no claim by the Government that kickbacks are at issue in thiscase, the Defendant will only refer to bribery and bribery schemes throughoutthis reply brief.

2 The panel was comprised of Justices B.D. PARKER and CHIN, Circuit Judges,and KORMAN, District Court Judge, sitting by designation.



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As in the Botti case before this Court, the jury charge in Bruno did not

require the jury to find that the defendant provided a bribe to a public official in

order for him to be convicted of Honest Services Mail Fraud. The charge in Botti

essentially instructed the jury that bribery" was but one of several ways in which

an individual could commit honest services mail fraud. The Court used the words:

"So, for instance..." when referring to bribery. This instructed the jury that bribery

was only one of the ways the Defendant could commit Honest Services Mail

Fraud. 3

It was decided in Skilling, and now by this Circuits own decision in Bruno,

that in order to be a legally correct charge, the charging language must require

the jury to find that the Defendant participated in a Honest Services Mail Fraud by

way of bribery. The jury charge in the Botti case certainly did not. Instead, the

3 As it was noted in the Defendant's Opening Brief, the exact language of thissection of the Charge stated:

So, for instance, a public official who accepts a bribe or corruptpayment breaches the duty of honest, faithful and disinterestedservice, while outwardly appearing to be exercising independence inhis or her official work, the public official instead has been paidprivately for his or her public conduct. Thus, the public is notreceiving the public officials honest and faithful service to which it is

entitled." DB 22 GA 514, 896

This is the only time the word bribe" is mentioned in the Court's honest servicesmail fraud charge to the jury. As was also noted in the Defendant's Opening Brief,this language does not even properly instruct the jury as to any act or actions by theDefendant in this case because it only contains language referring to a publicofficial who accepts a bribe". The Defendant is not a "public official".



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jury charge in Botti, included several other ways in which the Defendant could

have committed Honest Service Mail Fraud and as a result, the verdict may rest on

a legally invalid theory resulting in Constitutional error. 4

Because the indictment alleged three objects of the conspiracyhonest services wire fraud, money-or-property wire fraud andsecurities fraudSkillings conviction is flawed. See Yates v. UnitedStates 354 U.S. 298 (1957) (Constitutional error occurs when a jury isinstructed on alternative theories of guilt and return a general verdictthat may rest on a legally invalid theory.) U.S v Skilling at p. 2934 .

This Court must look closely at the specific language given by the trial Court

in its charge to the jury. It must then determine if the verdict could have been

predicated on a non-bribery theory of law that is no longer valid. If the verdict

could have been predicated on a non-bribery theory of Honest Services Mail Fraud

that is no long valid, then the conviction cannot stand.

Because the error is of Constitutional dimension, this court mustvacate the verdict and order a new trial, unless the government candemonstrate beyond a reasonable doubt that the error did notcontribute to the verdict." Chapman v. California, 386 U.S. 1824(1967). Skilling 130 S Ct at 2934 35; United States v. Black, 130 S.Ct. 2963, 2969 70 (2010).

Here, the Government will be unable to meet that burden. The error in the

charge cannot be viewed as harmless when the language at issue goes to the very

heart of what must be proven to convict a person of Honest Services Mail Fraud.

4 The other ways the Defendant could have committed Honest Services Mail Fraudare by materially false or fraudulent pretenses, representations and/or trick,deceit and deception.



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In this case it did. The language of the charge, coupled with the evidence and the

arguments presented by the Government may have resulted in the Defendant being

convicted on a non-bribery theory of Honest Services Mail Fraud that has been

deemed to be unconstitutional warranting a new trial.

A. The Erroneous Language in the Charge to the Jury

The Courts charge to the jury with respect to Honest Service Mail Fraud

contained multiple errors thereby allowing the jury to convict the Defendant, Botti

without finding him guilty of it by way of a bribery scheme. The trial court

defined Honest Services Mail Fraud as a scheme to defraud by means of

materially false or fraudulent pretenses, representations, and promises reasonably

calculated to deceive persons of average prudence without requiring the jury to

find the necessary element of "bribery". The Courts charge, in part, stated:

"A scheme to defraud is any plan in place or course of action to obtainmoney or property or the intangible right of honest services by meansof materially false or fraudulent pretenses, representations, andpromises reasonably calculated to deceive persons of averageprudence." DA 187 GA 891. 5

The Court further charged that "a scheme to defraud is a plan to deprive

another of the intangible right of honest services by trick, deceit, deception or

swindle."

5 This section of the Jury Charge is contained in its entirety at GA 889-902. Onlyexcerpts from it have been quoted in the body of this Reply Brief.



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Thus, a scheme to defraud is a plan to deprive another ofmoney or property or of the intangible right to honest services bytrick, deceit, deception, or swindle.

The government has alleged in the indictment that the schemeto defraud was carried out by making materially false or fraudulentpretenses, representations, and promises." GA 892

***"In addition, [to] proving the statement was false or fraudulent

and related to material fact, [i]n order to establish a scheme todefraud, the government must prove that the alleged schemecontemplated depriving another of money or property or of theintangible right of honest services." GA 894

That language falls short of requiring the jury to find that the Defendant

committed Honest Services Mail Fraud by way of bribery and is exactly the type of

conduct that no longer serves as a valid legal basis for a Honest Services Mail

Fraud conviction post-Skilling.

B. The Governments Theory to Convict the Defendant of

Honest Services Mail Fraud Rested in Part on Non-Bribery

Type Acts

The Government argues that they offered only one theory in support of the

honest services mail fraud count--a bribe theory. GB 23. Contrary to that

statement, a review of the trial court record through the Appendixes provided by

the parties to this Court supports the Defendant, Bottis contention that the

Government offered multiple non-bribery theories to the jury (GA 252-261, 726,

729-230, 734-735).



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The Government began by presenting its non-bribery theory to the jury in its

Opening Statement. It continued with that theory in its opposition to a Motion in

Limine and carried it right through to its Closing Argument to the jury. The

Government did this by repeatedly claiming that the Defendant was guilty of

manipulating the process with fraudulent misrepresentation and deceit in not

disclosing material facts to the Planning and Zoning Commission. DA 137

In fact, a closer look at the record reveals that the Government even pursued

separate and distinct theories for each of the different counts of the indictment.

In the First Count, Conspiracy to Defraud (in violation of 18 U.S.C. 371)

and the Second Count, Bribery of a Public Official (in violation of 18 U.S.C.

666), the Government alleged and pursued the theory that the Defendant bribed

Public Official No. 1, the Mayor of Shelton.

In those counts, the Government presented evidence from various witnesses

and made very clear allegation accusing the Defendant of committing bribery. It

should be noted that despite those allegations and evidence, the Government failed

to prove to that the Defendant did in fact bribe the Mayor. The jury was unable to

reach a verdict on either of these two counts and they ended in mistrials.

When discussing the acts of alleged bribery as they pertain to the First and

Second Counts of the indictment, in its Opening Statement the Government stated:

The conspiracy, (referring to the first count) ladies and gentlemen isthe secret agreement between Mark Lauretti and James Botti. Look to



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see what efforts James Botti took to conceal their relationship fromthe public.

The next count of the indictment is the June 2006 bribery count.That concerns the 828 Project. What you're looking for here ladiesand gentlemen is evidence of a bribe to Lauretti. If you recall thatJames Botti mentioned to his friend that he bribed Mark Lauretti,listen to the evidence. Its all about buying votes, getting thenecessary approvals and it's all being done by the backdoor. Again,ladies and gentlemen, you're going to see things that the people ofShelton never saw. You're going to see how the process wascorrupted." (Emphasis added) DA 136.

Those statements specifically referred to the conspiracy to defraud and

bribery charges contained in Counts One and Two and were in strong contrast to

statements made by the Government with regard to the Honest Services Mail Fraud

charge contained in Count Three.

In Count Three, the Government alleged and put forth evidence regarding a

different theory of culpability. It presented and argued non-bribery conduct as the

basis for prosecuting the Defendant on the Honest Services Mail Fraud charge.6

The non-bribery conduct consisted of numerous allegations of

"misrepresent[ation]" and "manipulation" by the Defendant in sending individuals

to lie and testify falsely when appearing before the planning and zoning

commission in support of his project. It was the Governments theory that the

6 The Government also puts forth evidence and arguments as to the Defendantproviding rewards and or benefits to members of the Planning and ZoningsCommission at various times. Those were also non-bribery scheme acts or actionsthat did not contain the requisite Quid Pro Quo and do not survive the SupremeCourts post Skilling definition of honest services mail fraud.



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Defendant committed Honest Services Mail Fraud by way of materially false or

fraudulent pretenses, representations and/or trick, deceit and deception. The

Government made it very clear throughout the trial that it was predominantly

relying on non-bribery acts as a basis for a conviction of Honest Services Mail

Fraud.

A review of the Governments reference to misrepresentations and deceit in

its Opening Statement supports the Defendants position. It's remarks, in part,

consisted of:

"The last count of the indictment, the Third Count is called a mailfraud count Ladies and gentlemen this count is aboutmanipulating the process. Did James Botti manipulate theplanning and zoning commission hearing to get approved? It's

about misrepresenting the truth. Did James Botti send people tosupport the project without disclosing the fact that they worked forJames Botti. And finally look for the mailing on June 28, 2006."(Emphasis added) DA 137.

It further emphasized its Honest Services Mail Fraud theory in its Opening

Statement when commenting on the anticipated testimony of two of its witnesses,

Dan Widkins and Andrew Czaplinski, wherein the Government stated:

" and we anticipate they'll say they did come to the hearing, theydid support the project, and they did not disclose that they had any

affiliation with James Botti."" D A 161 163."

Then in opposing the Defendant's Motion in Limine, the Government stated:

We anticipate that Greg Fracassini will take the stand next week andtestify about the direction he was given by James Botti to go to thepublic hearing and misrepresent who he was representing. This is in



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the indictment, Your Honor. It's a paragraph in furtherance of thefraud and just so the record is clear, Your Honor, this is paragraphnumber 26.7 DA 161

It is disingenuous for the Government to argue in its brief that it prosecuted

the Defendant on only a bribery theory when the record shows that the

Government, at the very least, proceeded on duel theories. That is, the

Government presented arguments and proposed a jury charge supportive of both a

bribery and non-bribery theory of Honest Services Mail Fraud.

If the Government's Honest Services Mail Fraud theory was solely based

upon a bribery scheme, then the Government would have only presented evidence

that supported its theory that the Defendant bribed the Mayor and the

Commissioners. All of the evidence presented by the Government of materially

false or fraudulent pretenses, representations and/or trick, deceit and deception

before the Planning and Zoning Commission did nothing to support a bribery

scheme.

In fact, if the Mayor and the Commissioners had been effectively bribed by

the Defendant, there would have been no need for any evidence of

misrepresentation" or "deceit".

7 Paragraph 26 of the Honest Services Mail fraud Count [Count Three] states; in orabout May 2006 Botti directed employees and persons affiliated with his businessto attend a public hearing before P & Z and speak in favor of Bottis applicationwithout disclosing their affiliation with Botti.



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In short, the evidence of "trick", "deceit", "false pretenses and

misrepresentations" could only have been presented by the Government to support

a separate theory of honest services mail fraud that was not a part of bribery

scheme. It was presented to support a non-bribery theory of honest services mail

fraud that has since been ruled improper by the U.S. Supreme Court in Skilling.

C. The Non-Bribery Evidence Was Not Offered to Support a

Traditional Mail Fraud Theory

The Government now appears to claim in its brief that the non-bribery

evidence was offered only to support the traditional mail fraud count as it relates to

the money and property prong of mail fraud (traditional mail fraud) and not the

honest services prong. GB 35 However, that position is in conflict with its

Closing Argument to the jury wherein the Government stated:

As you will hear from the judge, mail fraud also means a materiallyfalse and fraudulent representation. And where is it in this case?Well, in this case there are a number of them. Again, James Bottisends Greg Fracassini and Watkins to the P & Z public hearing andtells them to lie about their association with him. That's materiallyfalse and fraudulent representations. (GA 726 727)

***Listen to the judge's instruction. The mailing does not have to be thefraud, just part of the fraud. Here, the fraud was a scheme and artifice

to make millions of dollars of from the New Alliance Bank. And ifall James Botti's actions in this conspiracy, bribery, and two-

prong mail fraud were okay, why the cover-up of the gifts andbenefits and bribes?" [emphasis added] (GA 729 730)

***



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What about the mail fraud? The Government has to show that Mr.Botti devised a scheme and artifice, consider the P & Z committee andthere are two prongs to this. There's a prong, a scheme and

artifice to defraud. Two prongs. One, to obtain money from New

Alliance Bank andtwo, to deprive the citizens of Shelton of honest

services of their public officials. Again, what did he do? You heard

all the evidence about how he tried to con the P and Zcommissioners into voting yes. [emphasis added] (GA 734 735)

The Government, in its own words to the jury, clearly states that there are

two prongs to the scheme and artifice to defraud. One of those prongs is to

obtain money from New Alliance Bank. The other is to deprive the citizens of

Shelton of honest services... [by trying] to con the P and Z commissioners into

voting 'yes'".

II. THE GOVERNMENT'S CLAIM THAT IT'S HONEST

SERVICES MAIL FRAUD THEORY WAS LIMITED TO A

BRIBE THEORY IS INCONSISTENT WITH ITS PROPOSED

REQUESTS TO CHARGE THE JURY

The Governments Preliminary Requests to Charge GA 444- 567 was replete

with non-bribery theory language as a basis to convict the Defendant of Honest

Services Mail Fraud.

That proposed language by the Government and used by the Court allowed

the jury to find that the Defendant committed Honest Services Mail Fraud by

material false and fraudulent pretenses, representations or promises, or by

trick, deceit, deception or swindle, without finding the Defendant committed

bribery. GA 889, 891, 892, 893, 894, 895, 898, 900, 901, 902. The Government's



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Preliminary Request to Charge No. 38 through 41, GA 505 521 stated in relevant

parts as follows:

Request No. 38 ELEMENTS OF MAIL FRAUD:

First, that there was a scheme or artifice to defraud. There aretwo types of schemes to defraud charged in the case in Count Three.One is a scheme or artifice to defraud the victim of money or propertyby means of material false and fraudulent pretenses, representations orpromises as alleged in the indictment. The second is a scheme orartifice to defraud the public of the intangible right of honest

services of its public officials by means of material false and

fraudulent pretenses, representations or promises as alleged in the

indictment." [emphasis added] GA 505

Request No. 39: "FIRST ELEMENT- SCHEME TO DEFRAUD":

"Thus, the first element that the government must prove beyondreasonable doubt is that there was either: (a) a scheme or artifice todefraud a victim of money or property by means of material false andfraudulent pretenses, representations or promises as alleged in theindictment or; (b) that there was a scheme or artifice asked todefraud the citizens of Shelton of the intangible right of honest

services of its public officials by means of materially false andfraudulent pretenses, representations or promises as alleged in the

indictment. I repeat, the government need not prove both of these

ways, but must prove one of these ways." [emphasis added] GA507

Request No. 40: "'SCHEME TO DEFRAUD' DEFINED":

What is a scheme or artifice to defraud? A scheme or artifice

is a plan for the accomplishment of that objective.A scheme to defraud is a plan, device, or course of action to

obtain money or property (or to deprive the public of the intangibleright of honest services of its public officials) by means of false or

fraudulent pretenses, representations, or promises reasonably

calculated to deceive.



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Fraud is a general term, which embraces all the various means bywhich human ingenuity can devise, and which are resorted to by anindividual to gain an advantage over another by false representations,suggestions, or suppression of the truth, or deliberate disregard for thetruth.

Thus, a "scheme to defraud" is a plan to deprive another ofmoney or property (or the intangible right of honest services ofpublic officials) by trick, deceit, deception, or swindle.

The scheme to defraud in this case is alleged to have been

carried out by making materially false and fraudulent, pre-

representations and promises, which scheme and artifice is in

substance as set forth in paragraphs 8 through 44 of count one of

this indictment.8

A statement, representation, claim or document is false if it is

untrue when made and was then known to be untrue by the personmaking it or causing it to be made.

A representation or statement is fraudulent if it is falsely madewith the intent to deceive.

8 The allegations in paragraphs 8-44 of the indictment contain various allegationsof misrepresentation, concealment along with allegations of the Defendantproviding favors and benefits as well as rewards to public officials and to

cause payments to be made for the benefits of the public official. None of theseallegations include bribery. (Note: The term: rewards refers to illegalgratuities not bribes. United States v. Bahel, No. 083327, __ F.3d __, 2011 WL5067095 (2d Cir. Oct. 26, 2011). "At oral argument held after the Supreme Courtissued its decision in Skilling, the government expressed its belief that section1346 does not encompass the illegal gratuities, an argument it concluded wasforeclosed by Skilling." p. 19). The terms "favors and benefits" do not contain thenecessary: Quid Pro Quo requirement in order to establish a "bribery" or "briberyscheme" allegation. See also: United States v. Wilkes, No. 0850063, __ F.3d __,2011 WL 4953070 (9th Cir. Oct. 19, 2011) (affirming conviction where evidence

supported quid pro quo bribery theory) United States v. Langsford, 647 F.3d 1309(11th Cir. 2011) (affirming conviction where evidence supported quid pro quobribery theory).

The only allegation of bribery in the indictment is contained in paragraphs45-46. These allegations were not incorporated into Count Three, as part of theGovernments allegations for the charge of mail fraud.



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Deceitful statements or half-truths or the concealment ofmaterial facts may also constitute false and fraudulent statementsunder the statute.

The deception need not be premised upon spoken or writtenwords alone. The arrangement of the words, or the circumstances inwhich they are used, may convey the false and deceptive appearance.If there is deception, the manner in which is accomplished isimmaterial.

The failure to disclose information may also constitute afraudulent misrepresentation if the defendant was under a legal,professional, or contractual duty to make such a disclosure, defendantactually knew such disclosure ought to be made, and the defendantfailed to make such disclosure with the intent to defraud.

The false or fraudulent representations (or failure to disclose)

must relate to a material fact or matter. A material fact is one whichwould reasonably be expected to be of concern to a reasonable andprudent person in relying upon the representation or statement inmaking a decision.

This means that if you find a particular statement of fact to havebeen false, you must determine whether the statement was one that areasonable person might have considered important in making his orher decision. The same principle applies to fraudulent half truths oromissions of material facts.

The representations which the government charge were made

as part of the scheme are set forth in paragraph 8 through 44 of

count one of the indictment, which I have already read to you. It isnot required that every misrepresentation charged in the indictment beproven. It is sufficient if the prosecution proves beyond a reasonabledoubt that one or more of the alleged material misrepresentations weremade in furtherance of the alleged, and to defraud." [emphasis added]GA 5095129

9 The only bribery reference in the Honest Services Mail Fraud charge requestedby the Government that was given by the Court was Request No. 42 SCHEMETO DEFRAUD INVOLVING HONEST SERVICES". It states in part:

"...So, for instance, a public official who accepts a bribe or corruptpayment breaches the duty of honest, faithful and disinterestedservice. While outwardly appearing to be exercising independent



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Undoubtedly, the proposed language contained in the Governments

Preliminary Request to Charge GA 444 confirms that the Government proceeded

on two tracks or two theories of culpability with regard to Honest Services Mail

Fraud. One of these included "fraudulent misrepresentations", as well as Honest

Services Mail Fraud by "trick, deceit, deception or swindle". This is the non-

bribery language that was contained in their Request to Charge and used by the

trial court in its charge to the jury. The other was bribery.

Ergo, it is difficult to understand how the Government can now claim that it

had always proceeded on only one theory of prosecution with regards to Honest

Services Mail Fraud -- by way of bribery.

In addition to its Requests to Charge, the Government presented substantial

evidence and repeatedly argued in its Opening Statement, opposition to

Defendants Motion in Limine and Closing Argument that it was relying in part on

judgment in his or her official work, the public official instead hasbeen paid privately for his or her public conduct. Thus, the public isnot receiving the public officials, honest and faithful service to whichit is entitled.

The Government alleges that the defendant, James Botti engaged in ascheme to defraud the citizens of Shelton, Connecticut of theintangible right to the honest services of its public officials byproviding benefits such officials, with intent to influence suchofficials...." (GA 0514GA 0516).

(Note: The balance of the Governments Preliminary Request to Charge regardingbribery was not given by the court.)



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a non-bribery theory to convict the Defendant of Honest Services Mail Fraud. (See

Section 1(I)(B) supra.)

As a result, this Court cannot conclude with any confidence that the jury did

not convict the Defendant of Honest Services Mail Fraud founded upon non-

bribery act(s) or scheme(s). This is evident based upon the case as it was presented

and in view of the special Verdict Form (DA 77) that was ultimately returned in

this case, infra.

III. THE VERDICT FORM AND THE JURY'S FAILURE TOREACH A VERDICT ON THE BRIBERY COUNTS

CONSTITUTES ONE MORE FACTOR FOR THIS COURT TO

CONSIDER IN DECIDING TO GRANT THE DEFENDANT A

NEW TRIAL.

Despite the prevailing view as it has been cited in Yeager v United States,

129 S. Ct 2360 (2009) that a mistrial or hung jury does little to assist in

encipher[ing] what a hung count represents. (GB 38 citing to Yeager p. 2368).

That logic should not be applied in this case. This is because a review of the Botti

Verdict Form (DA 77) can help to decipher what the jury did not doand would

have had to have done under the law to have reached a proper verdict.

In this case, the jury would have needed to conclude that the Defendant was

guilty of each element of 18 U.S.C 666 bribery in order to have properly

convicted him of Honest Services Mail Fraud. Therefore, in order for the jury to

have properly convicted the Defendant of Honest Services Mail Fraud in Count



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Three, they would have had to also conclude that the Defendant was guilty of

Bribery in Count Two. Without having reached that conclusion, the Honest

Services Mail Fraud verdict could not be based upon a bribery scheme.

The bribery charge in Count Two is-- in effect a lesser included charge of

honest services mail fraud. The elements are identical, except for Honest Services

Mail Fraud containing the additional elements of the mailing and the scheme.

The charge in Count Two of the indictment containing 18 USC 666 bribery has

no other or additional elements distinguishable from the Third Count of the

Indictment containing Honest Services Mail Fraud.

If the honest services mail fraud was not based upon a bribery scheme then it

is not a valid basis for the jurys finding of guilty on Count Three.

As a result, under the facts of this case, the hung jury on Count Two does

prove to be helpful in understanding how this particular jury instruction was

applied by the jury to the facts of this case. The jury did not just ignore the

evidence and the jury charge regarding the elements of 666 bribery in Count Two

of the indictment, and then suddenly apply them to Count Three. It is not logical

to conclude that the jury could properly find the Defendant guilty of Honest

Services Mail Fraud by way of bribery, but not guilty of bribery itself.



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IV. THE EXAMPLE USED BY THE GOVERNMENT IN ITS

BRIEF TO ILLUSTRATE ITS CLAIM THAT THE JURY

COULD HAVE FOUND THE DEFENDANT GUILTY OF A

BRIBERY SCHEME WITHOUT FINDING THAT THE

DEFENDANT COMMITTED BRIBERY, EITHER IGNORES

OR MISCONSTRUES THE ELEMENTS OF 18 U.S.C. 666

Count 2 of the Indictment charges the Defendant with violating Title 18

U.S.C. 666. The specific wording of that section of the statute provides in

relevant part as follows:

Whomever... (2), corruptly gives, offers, or agrees to give anything

of value to any person, with intent to influence or reward an agent ofan organization or of a State, local, or Indian tribal government, orany agency thereof, in connection with any business, transaction, orseries of transactions of such organization, government, or agencyinvolving anything of value of $5000 or more."

Shall be guilty of a crime." [emphasis added]

The Government seems to ignore the plain language of the statute in its

argument to this Court at pp 43-45 of its brief. The plain language of the statute

not only states: whomever corruptly gives", but also contains the words:

"offers, or agrees to give". Despite the express language in this statute, the

Government goes to great lengths in an attempt to illustrate what they claim is an

important point for this Court to consider. That is, that the jury could have found

the Defendant guilty of Honest Services Mail Fraud by way of a bribery scheme

even though the jury failed to convict him of the underlying bribery charge in the

second count of the Indictment.



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The Government erroneously makes this claim by way of an example. In it

they claim that there is some sort of difference between the mere "offer[ing]" of a

bribe and the actual "giv[ing]" of a bribe -- as to culpability under the federal

bribery statute.10 They do this despite the fact that an "offer to give a bribe, is just

as much a violation of 18 USC 666 as is the actual act of giving a bribe. Under

the law, one need not actually complete the act of giv[ing] the bribe in order to

be guilty of bribery.

The Government offers this example to support its argument that a

Defendant could commit honest services mail fraud by way of a bribery scheme"

without actually giving a bribe. That is, if an individual offers a bribe but later

changes his mind and never actually gives over the bribe, the Government claims

10 A review of the Government's Preliminary Requests to Charge on bribery revealsthat although the Government included the correct language of 18 U.S.C. 666 inquoting the statute GA 493, the Government failed to include the appropriatelanguage from the statute regarding anyone who not only "gives" (anything ofvalue to any person, with intent to influence or reward) shall be guilty of a crimebut also anyone who "offers, or agrees to give (anything of value to a person, withthe intent to influence) shall be guilty of a crime." GA 493 500.

The language contained in the Governments Preliminary Requests to

Charge GA 494, 498, 499, 500 is an inaccurate -- or incomplete statement of thelaw. That flaw in the Government's argument apparently led the Government toerroneously conclude that the jury could have properly found the Defendant guiltyof Honest Services Mail Fraud in this case without also having to find him guiltyof bribery. These inaccurate or incomplete statements of law regarding theelements of bribery as proposed by the Government were not included in the trialcourt's charge to the jury.



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he would not be guilty of committing bribery, but would still be guilty of honest

services mail fraud. The Government states at pp. 43-44 of its brief:

A defendant mails a letter to a local public official requesting that theofficial use his authority to help the defendant in exchange for a futuremonetary payment the bribe promise. The local public official, whohas previously refused to support legislation that would favorbusinesses in the defendant's industry, suddenly supports legislationthat favors the defendants business. Thereafter, the defendant doublecrosses the public official and refuses to provide any monetarypayment to the public official. In that case, while no bribe was everpaid, the defendant did engage in a mail fraud scheme to deprive thecitizens of their right to receive the honest services of their local

official. While outwardly appearing to be exercising independentjudgment in his official work, the public official instead acted becausehe hoped to receive a corrupt payment. Thus, as a result of thedefendant's conduct, the public did not receive the public officialshonest and faithful service to which was entitled, even though noactual bribe was paid.

In sum, there is no requirement that a bribe be paid fordefendant to be guilty of engaging in honest services mail fraud. (GA43- 44).

The flaw in the argument as presented is that in addition to being guilty of

Honest Services Mail Fraud by way of a bribery scheme, the Defendant would also

be guilty of bribery. The actions by the Defendant in the first sentence of the

example (A defendant mails a letter to a local public official requesting that the

official use his authority to help the defendant in exchange for a future monetary

payment the bribe promise.) constitute a valid offer under 18 U.S.C. 666 and

as a result would be enough to find a defendant guilty of bribery. Again, this is

because 18 U.S.C. 666 makes no distinction between the mere offer[ing]



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and the actual giv[ing] of a bribe. The mere offer of a bribe is just as much a

violation of the statute as the actual giving of one. In fact, as it pertains to the

jury's findings in this particular case, that was the language given by the Court in

its charge to the jury regarding 18 U.S.C. 666.

The trial court correctly quoted the statute as follows:

Count 2 of the indictment charges the defendant, as I've just read,with violating section 666 (a) (2) of Title 18 of the United StatesCode. That section provides, in relevant part: "whoever corruptlygives, offers, or agrees to give anything of value to any person, with

intent to influence or reward an agent of an organization or of a State,local, or Indian tribe government or any agency thereof, in connectionwith any business, transaction, or series of transactions of suchorganizations, government, or agency, or involving anything of valueof $5000 or more shall be guilty of a crime." [emphasis added] GA870

The trial court goes on to further define this section of the 18 U.S.C. 666 as

follows:

The third element, the government must prove beyond a reasonabledoubt is that the defendant gave or agreed to give or offer somethingof value to Mark Lauretti, as alleged in the indictment. The statutemakes no distinction between offering and giving of a bribe. The

mere offer of a bribe is just as much a violation of the statute as

the actual giving of one." [emphasis added] GA 881

Ironically, when the correct application of law is applied to the facts

contained in the Government's example it tends to support just the opposite of what

the Government seeks to prove. That is to say, when applying the quote from the

Government's example GB 43-44: A defendant request[ed] that the official use



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his official authority to help the defendant in exchange for a future monetary

payment, the bribe promise, regardless of whether or not the defendant later

refused to provide monetary payment to the public official, this offer" alone is

enough under the law to find a defendant guilty of bribery. The law is clear that a

"mere offer of a bribe is just as much a violation of the statute as the actual giving

of one." GA 881.

As a result of the correct application of the law to the example posited by the

Government, it is easy to see that the jury could not have properly found the

Defendant guilty of honest services mail fraud without having also found the

Defendant guilty of the crime of bribery.

2. CONCLUSION

For all of the above reasons this Court should grant the Defendant a new

trial on Count Three of the Indictment, Honest Services Mail Fraud.

Respectfully submitted,

By /s/ George W. Ganim, Jr.George W. Ganim, Jr.The Ganim Law Firm P.C.4666 Main StreetBridgeport, CT 06606

(203) 372-7772

Counsel for the Appellant



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CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because this brief contains 6,183 words, excluding the parts of the

brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this

brief has been prepared in a proportionally spaced typeface using Word in 14-point

Times New Roman.

By /s/ George W. Ganim, Jr.George W. Ganim, Jr.



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CERTIFICATION OF SERVICE

CAPTION: United States of America v. Botti

DOCKET NUMBER: 10-3891

I, George W. Ganim, Jr., hereby certify under penalty of perjury that onDecember 27, 2011, I served a copy of the Reply Brief for Appellant James Biottiby

___ United States Mail___ Federal Express___ Overnight Mail___ Facsimile

X E-mail (via ECF)___ Hand delivery

on the following parties:

Richard Schechter, Senior Litigation CounselRahul Kale, Assistant U.S. AttorneyUnited States Attorney's Office, District of ConnecticutRoom 3091000 Lafayette BoulevardBridgeport, CT 06604(203) 696-3000

December 27, 2011 /s/ George W. Ganim, Jr.George W. Ganim, Jr.,


botti reply brief

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