government reply brief, botti appeal

8/2/2019 Government Reply Brief, Botti Appeal

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10-3891To Be Argued By:

RICHARD J.SCHECHTER

=========================================

FOR THE SECOND CIRCUITDocket No. 10-3891

UNITED STATES OF AMERICA, Appellee,

-vs-

JAMES BOTTI,

Defendant-Appellant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF CONNECTICUT

========================================BRIEF FOR THE UNITED STATES OF AMERICA

========================================

MICHAEL J. GUSTAFSON

Acting United States Attorney

District of Connecticut

RICHARD J. SCHECHTER

RAHUL KALE

Assistant United States Attorneys

SANDRA S. GLOVERAssistant United States Attorney (of counsel)

Case: 10-3891 Document: 60 Page: 1 11/30/2011 460317 71


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Table of Contents

Table of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

Statement of Jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . x

Statement of Issues Presented for Review.. . . . . . . . . . xi

Preliminary Statement. . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement of the Case.. . . . . . . . . . . . . . . . . . . . . . . . . . 2

Statement of Facts and Proceedings

Relevant to this Appeal.. . . . . . . . . . . . . . . . . . . . . . . . 4

A. The criminal conduct. . . . . . . . . . . . . . . . . . . . . . . . 4

1. Defendant bribed the Shelton mayor. . . . . . . . . 5

2. Defendant paid bribes to obtain approval

of the 828 Project.. . . . . . . . . . . . . . . . . . . . . . . 6

3. Defendant hid his bribes from federal

scrutiny. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

4. Defendant corruptly gave benefits to otherpublic officials. . . . . . . . . . . . . . . . . . . . . . . . . . 10

5. The defense case. . . . . . . . . . . . . . . . . . . . . . . . 11

B. Relevant proceedings. . . . . . . . . . . . . . . . . . . . . . . 12

1. Defendants motion to dismiss the honest

services mail fraud count.. . . . . . . . . . . . . . 12



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2. Proposed jury instructions the charge

conference. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

3. The district courts charge. . . . . . . . . . . . . . . . 16

4. The verdict.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

5. Defendants motion for a new trial . . . . . . . . . . 19

6. The district courts denies the motion for a

new trial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Summary of Argument.. . . . . . . . . . . . . . . . . . . . . . . . 23

Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

I. The district court properly instructed the jury by

tailoring the charge to the singular bribe theory offered

in support of honest services fraud and using a bribe

example to demonstrate how a public official deprives

citizens of the intangible right to the public officials

honest services. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

A. Governing law and standard of review.. . . . . . 25

B. Discussion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

1. The Governments only honest services

fraud theory was a bribe theory. . . . . . . . . . 30

2. The jurys inability to reach a verdict on

some counts has no meaning.. . . . . . . . . . . . 38

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3. The district courts honest services fraud

charge was proper and certainly not plain

error.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

i. The charge provided only one theory for

conviction. . . . . . . . . . . . . . . . . . . . . . . . . 46

ii. The phrase for instance and the use of

the term trick, deceit, deception,

swindle were not errors. . . . . . . . . . . . 48

iii. The charge adequately addressed

bribery. . . . . . . . . . . . . . . . . . . . . . . . . . 49

iv. Use of the term self-enrichment is not

error. . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

v. Any purported error was harmless. . . . . 54

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

Certification per Fed. R. App. P. 32(a)(7)(C)

Addendum

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Table of Authorities

Cases

PURSUANT TO B LU E BOOK RULE 10.7, TH E GOVERNMENTS CITATION OF

CASES DOES NOT INCLUDE CERTIORARI DENIED DISPOSITIONS THAT AR E

MORE THAN TWO YEARS OLD .

Black v. United States ,

130 S. Ct. 2963 (2010). . . . . . . . . . . . . . . . . . . . . . 20

Chapman v. California,

386 U.S. 18 (1967). . . . . . . . . . . . . . . . . . . . . . . . . 28

Cupp v. Naughten,

414 U.S. 141 (1973). . . . . . . . . . . . . . . . . . . . . . . . 29

Fahy v. Connecticut,

375 U.S. 85 (1963). . . . . . . . . . . . . . . . . . . . . . . . . 28

Hedgpeth v. Pulido,

555 U.S. 57 (2008). . . . . . . . . . . . . . . . . . . . . . . . . 31

Johnson v. United States,

520 U.S. 461 (1997). . . . . . . . . . . . . . . 26, 27, 28, 45

Porcelli v. United States,

404 F.3d 157 (2d Cir. 2005). . . . . . . . . . . . . . . . . . 42

Puckett v. United States ,

129 S. Ct. 1423 (2009). . . . . . . . . . . . . . . . . . . 26, 28

iv



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Ryan v. United States,

645 F.3d 913 (7th Cir.),petn for cert. filed,

No. 11-499 (Oct. 19, 2011). . . . . . . . . . . . . . . 54, 55

Skilling v. United States,

130 S.Ct. 2896 (2010). . . . . . . . . . . . . . . . . . .passim

United States v. Aina-Marshall,

336 F.3d 167 (2d Cir. 2003). . . . . . . . . . . . . . . . . . 52

United States v. Bahel,

__ F.3d __, No. 08-33327-cr, 2011 WL

5067095 (2d Cir. Oct. 26, 2011). . . . . . . . 27, 45, 50

United States v. Ballistrea,

101 F.3d 827 (2d Cir. 1996). . . . . . . . . . . . . . . . . . 27

United States v. Barraza,

655 F.3d 375 (5th Cir. 2011). . . . . . . . . . . . . . 45, 54

United States v. Boone,

628 F.3d 927 (7th Cir. 2010). . . . . . . . . . . . . . . . . 54

United States v. Bruno,

__ F.3d __, No. 10-1885, 2011 WL

5555611 (2d Cir. Nov. 16, 2011). . . . . . . . 32, 37, 39

United States v. Bryant,

655 F.3d 232 (3d Cir. 2011). . . . . . . . . . . . . . . . . . 50

United States v. Cantrell,

617 F.3d 919 (7th Cir. 2010). . . . . . . . . . . . . . . . . 54

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United States v. Coniglio,

417 Fed. Appx. 146 (3d Cir. 2011). . . . . . . . . . . . 37

United States v. Cotton,

535 U.S. 625 (2002). . . . . . . . . . . . . . . . . . . . . 26, 28

United States v. Deandrade,

600 F.3d 115 (2d Cir.), cert. denied,

130 S. Ct. 2394 (2010). . . . . . . . . . . . . . . . . . . . . . 26

United States v. Ferguson,

653 F.3d 61 (2d Cir. 2011). . . . . . . . . . . . . . . . . . . 29

United States v. Ganim ,

510 F.3d 134 (2d Cir. 2007). . . . . . . . . . . . . . . 41, 50

United States v. Glover,

511 F.3d 340 (2d Cir. 2008). . . . . . . . . . . . . . . . . . 29

United States v. Jackson,

658 F.3d 145 (2d Cir.),petn for cert. filed,

No. 11-7249 (Nov. 2, 2011). . . . . . . . . . . . . . . . . . 40

United States v. Kaplan,

490 F.3d 110 (2d Cir. 2007). . . . . . . . . . . . . . . . . . 27

United States v. Marcus,

130 S. Ct. 2159 (2010). . . . . . . . . . . . . . . . . . . . . . 26

United States v. Olano,

507 U.S. 725 (1993). . . . . . . . . . . . . . . . . . 26, 27, 28

vi



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United States v. Redzic,

627 F.3d 683 (8th Cir. 2010), cert. denied,

131 S. Ct. 2126 (2011). . . . . . . . . . . . . . . . . . . . . . 55

United States v. Regan,

937 F.2d 823 (2d Cir. 1991). . . . . . . . . . . . . . . . . . 47

United States v. Sabhnani,

599 F.3d 215 (2d Cir. 2010), cert. denied,

131 S. Ct. 1000 (2011). . . . . . . . . . . . . . . . . . . . . . 29

United States v. Starr,

816 F.2d 94 (2d Cir. 1987). . . . . . . . . . . . . . . . . . . 42

United States v. Stewart,

433 F.3d 273 (2d Cir. 2006). . . . . . . . . . . . . . . . . . 27

United States v. Sturdivant,

244 F.3d 71 (2d Cir. 2001). . . . . . . . . . . . . . . . . . . 33

United States v. Thomas,

274 F.3d 655 (2d Cir. 2001) (en banc). . . . . . . . . . 27

United States v. Urciuoli,

613 F.3d 11 (1st Cir.), cert. denied,

131 S. Ct. 612 (2010).. . . . . . . . . . . . . . . . . . . . . . 53

United States v. Viola,

35 F.3d 37 (2d Cir. 1994). . . . . . . . . . . . . . . . . . . . 27

United States v. Weintraub,

273 F.3d 139 (2d Cir. 2001). . . . . . . . . . . . . . . . . . 29

vii



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United States v. Williams,

399 F.3d 450 (2d Cir. 2005). . . . . . . . . . . . . . . . . . 27

Weyhrauch v. United States,

130 S. Ct. 2971 (2010). . . . . . . . . . . . . . . . . . . . . . 20

Williams v. United States,

341 U.S. 97 (1951). . . . . . . . . . . . . . . . . . . . . . . . . 29

Yates v. United States,

354 U.S. 298 (1957). . . . . . . . . . . . . . . . . . . . . . . . 31

Yeager v. United States,

129 S. Ct. 2360 (2009). . . . . . . . . . . . . 24, 38, 39, 40

Statutes

18 U.S.C. 371. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

18 U.S.C. 666. . . . . . . . . . . . . . . . . . . . . . . . . . .passim

18 U.S.C. 1001. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

18 U.S.C. 1341. . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 42

18 U.S.C. 1346. . . . . . . . . . . . . . . . . . . . . . . . . .passim

18 U.S.C. 3231. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . x

28 U.S.C. 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . x

31 U.S.C. 5317. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

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31 U.S.C. 5324. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Rules

Fed. R. Crim. P. 32.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Fed. R. Crim. P. 52. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

ix



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Statement of Jurisdiction

The district court (Charles S. Haight, Jr., J.) had subject

matter jurisdiction over this federal criminal prosecution

under 18 U.S.C. 3231. Judgment entered on September

20, 2010. Defendants Appendix (DA) 42. OnSeptember 23, 2010, the defendant filed a timely notice of

appeal. DA 43, 294. This Court has appellate jurisdiction

pursuant to 28 U.S.C. 1291.

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Statement of Issues

Presented for Review

1. Was defendant properly convicted of engaging in

honest services mail fraud for giving bribes to public

officials with the intent to receive favorable treatmentfrom the officials when the Government tried the honest

services fraud case to the jury only on a bribe theory, the

district court gave the jury an instruction of honest

services using only a bribe example, and defendant failed

to object to the district courts honest services fraud jury

instruction.

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FOR THE SECOND CIRCUIT

Docket No. 10-3891

UNITED STATES OF AMERICA,

Appellee,

-vs-

JAMES BOTTI,

Defendant-Appellant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF CONNECTICUT

BRIEF FOR THE UNITED STATES OF AMERICA

Preliminary Statement

Defendant, James Botti, a Shelton, Connecticut real

estate developer, deprived the citizens of Shelton of the

honest services of its public officials by bribing the

Shelton mayor, members of the Shelton Planning and

Zoning Commission (P & Z), and a Shelton building

official with the intent to receive favorable treatment from

these officials. On April 1, 2010, a jury returned a guilty

verdict against defendant for one count of honest services



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mail fraud. On September 17, 2010, the district court

sentenced defendant to a sentence of 72 months in prison

on the honest services mail fraud conviction.

On appeal, defendant challenges his conviction on one

ground that the district court erred in charging the juryregarding the definition of honest services mail fraud. For

the reasons set forth below, this claim has been waived by

a failure to object to the jury instructions at trial and is

meritless.

Statement of the Case

On November 6, 2008, a Connecticut federal grand

jury returned a seven-count indictment against defendant.

The indictment charged defendant with one count ofconspiracy to commit mail fraud in violation of 18 U.S.C.

371, one count of bribery of a local public official in

violation of 18 U.S.C. 666, one count of mail fraud in

violation of 18 U.S.C. 1341 and 1346 (charging both

honest services mail fraud and money and property mail

fraud), one count of conspiracy to structure in violation of

18 U.S.C. 371, one count of structuring in violation of 31

U.S.C. 5324, two counts of making false statements to

federal agents in violation of 18 U.S.C. 1001 and a

forfeiture allegation pursuant to 31 U.S.C. 5317(c)(1)and Rule 32.2(a), Fed. R. Crim. P. Governments

Appendix (GA) 1-24.

Prior to trial, the district court granted defendants

motion to sever the indictment and ordered that the

conspiracy to commit mail fraud, the bribery count and the

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mail fraud count (the corruption counts) be tried

separately from the conspiracy to structure, structuring and

false statement counts (the structuring counts). DA 13.

Separate redacted indictments were prepared for each trial.

GA 25-35; DA 54-67.

Trial on the structuring counts began before a jury on

November 2, 2009. DA 20. On November 10, 2009, the

defendant was convicted of conspiracy to structure and

structuring. The jury acquitted defendant on the two false

statement counts. DA 22. Subsequent to returning its

verdict, the jury was asked to render a ruling regarding

forfeiture. The jury ordered defendant to forfeit $120,500.

DA 291.

Trial on the corruption counts began before a separatejury on March 8, 2010. DA 30. On April 1, 2010 the

defendant was convicted of honest services mail fraud.

DA 32. The jury indicated on the verdict sheet that

defendant engaged in a scheme to deprive the citizens of

its right to the honest services of its public officials.

DA 77-79. When the jury was unable to reach a verdict on

the conspiracy count, the bribery count and the money and

property prong of the mail fraud count, the district court

declared a mistrial on these counts. DA 32; GA 957-62.

On September 17, 2010, the defendant was sentenced

to a 72-month term of imprisonment on the honest services

mail fraud count, and concurrent sentences of 60 months

on the conspiracy to structure and structuring convictions,

followed by three years of supervised release. DA 291-93.

Judgment entered on September 20, 2010. DA 42.

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On September 23, 2010, the defendant filed a timely

notice of appeal. DA 43, 294. Defendant is not appealing

his convictions or concurrent 60-month sentences imposed

on the conspiracy to structure and the structuring counts.

Statement of Facts and ProceedingsRelevant to this Appeal

A. The criminal conduct

Defendant James Botti was a Shelton, Connecticut real

estate developer. GA 337. He believed that he needed to

bribe the Shelton mayor and other Shelton public officials

to get his projects approved. Defendant admitted to one of

his tenants, that when he needed to, he presented people

with envelopes to have his proposals or his projectspushed through or passed and the envelopes contained

cash. GA 339. Defendant was recorded explaining that

the town of Shelton was crooked and corrupt.

GA 967, 974, 976. He advised that if the mayor or any

other public official tried to interfere with him, he would

expose the corrupt activities of 17 developers and

probably a big chunk of town hall. GA 986. He also

threatened that he could cause the Federal Government to

collapse the town hall. GA 968.

The Governments sole honest services fraud theory at

trial was that defendant made corrupt payments, and

provided other corrupt benefit to public officials, with the

intent to influence these officials to assist defendant obtain

necessary approvals for his development projects. From

2001 through 2006, defendant bribed the mayor, a Shelton

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building official, and members of the P & Z commission

by providing cash bribes and other benefits.

1. Defendant bribed the Shelton mayor.

In 2001, defendant paid for the mayor and his family totravel to Florida. GA 117-119. One year later, defendant

paid approximately $20,000 for home repairs for the

mayor. GA 84-90, 91-92, 102-106. Defendant hid the fact

that he paid for the work at the mayors house. Rather than

pay one of the contractors directly, defendant had his

father, Peter Botti, write a check to the contractor.

GA 214-22. One week later, defendant wrote a check to

his father to cover the check written by the father to the

contractor. GA 221. Defendant also deducted the expenses

he paid for the work on the mayors house by improperlydeducting the expenses on his tax returns. GA 107-117,

120. Defendant back-dated a bill for the work performed

at the mayors house but then directed his secretary not to

mail the bill to the mayor. GA 93-94, 98. Rather,

defendant explained that the back-dated bill was a cover

your ass bill to make it appear that he tried to bill the

mayor for the work. GA 99.

In late 2003, immediately after then-Connecticut

Governor John Rowland was exposed for having acceptedbenefits from persons doing business with the State of

Connecticut, the Shelton mayor paid defendant for the

home repairs. GA 100-101, 123. Shortly thereafter,

defendant paid the mayor approximately $9,000 for a 2003

Christmas party for approximately 60 people held at the

mayors restaurant, a grossly inflated figure. GA 95-97.

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From 2003 to 2006, defendant provided other benefits

to the mayor. These benefits included giving the mayor the

use of defendants backhoe, performing landscaping

services at the mayors house free of charge, storing the

mayors vehicles in defendants maintenance garage freeof charge, and hiring the mayors brother to work for

defendants company. DA 165; GA 230-40, 249-52, 264.

2. Defendant paid bribes to obtain approval of

the 828 Project.

In 2006, defendant sought to develop 828 Bridgeport

Avenue in Shelton (the 828 Project) and to construct

two restaurants and a bank at that location. GA 139-43. He

filed an application with the P & Z in February 2006.GA 148-53. Three months later, defendant directed two of

his associates and a friend to attend a public hearing and

speak in favor of the project. GA 254-55, 1014-1018.

Defendant instructed each of these persons not to disclose

the fact that they worked for defendant. GA 254-61. At

defendants direction, one of these employees falsely

identified himself at the public hearing as working for

another company, not defendants company. GA 257-58.

At the initial P & Z hearing on June 13, 2006, four ofthe six voting commissioners were not in favor of the

project. GA 128-33, 154-62. The P & Z Chairman advised

the P & Z consultant to prepare a draft of a denial as the

project did not have the necessary four votes for approval.

GA 159. After the initial meeting on June 13, 2006,

defendant contacted the mayor and requested the mayor

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use his influence with the other commissioners. GA 261-

62. The mayor then contacted the Chairman of the P & Z

and directed him to contact two other commissioners

(commissioners Orazetti and Hargar) who spoke against

the project. GA 163-95. The mayor requested that the

Chairman speak to these two commissioners in an effort toget the P & Z commission to approve the project. GA 163-

69.

Prior to June 13, 2006, the mayor never spoke publicly

or to any of the commissioners about the project. GA 124-

26, 134, 164-67. Nor had the mayor ever asked the

Chairman to speak to other commissioners in an effort to

approve any other P & Z application. GA 165. Only after

defendant contacted the mayor on June 13, 2006, did the

mayor show any interest in the project. GA 164. On June14, 2006, the mayor encouraged the Chairman to place

defendants application on the agenda for the June 20,

2006 evening meeting. GA 182-83, 207-208. Between

June 14 and June 20, the Chairman spoke to

Commissioners Orazetti and Hargar, both of whom agreed

to vote in favor of defendants project. GA 169-80.

On the morning of June 20, 2006, defendant learned

that Commissioner Orazetti was not planning to attend the

P & Z hearing and would not deliver the necessary fourthvote in favor of the project. GA 281-300, 328-36. Prior to

the evening meeting, defendant contacted P & Z

Commissioner Sylvester in an effort to obtain approval of

his pending application. GA 328. Defendant requested that

Sylvester approach Orazetti to vote in favor of defendants

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project. GA 328-30. Although Sylvester was recused from1

participating in any manner on defendants application, he

met with Orazetti during the day on June 20, 2006 to

discuss defendants application before the P & Z. GA 329-

30. Sylvester told Orazetti to attend the P & Z meeting to

be held that night and to vote in favor of defendantsapplication. GA 285-86, 330. Orazetti, who owned a

number of Shelton restaurants, told Sylvester to tell

defendant that Orazetti was booking Christmas parties.2

GA 287-88. When the conversation between Sylvester and

Orazetti ended, Orazetti agreed to attend the meeting and

vote in favor of defendants application. GA 288-89.

Sylvester instructed Orazetti to remember that their

meeting never happened. GA 289.

On the evening of June 20, 2006, the P & Z, withOrazetti in attendance, voted in favor of defendants

project by a 4 to 2 vote. GA 135. Commissioners Orazetti

and Hargar voted in favor of the application despite their

earlier comments against the project on June 13, 2006.

GA 198. On June 28, 2006, the P & Z mailed defendant

After defendant provided Commissioner Sylvester with1

approximately $1,500 of home renovations in 2004 and then

refused to bill Sylvester despite Sylvesters requests to bebilled, Sylvester recused himself from voting on defendants

projects. GA 301-306.

Six months later, defendant, who had never before2

frequented Orazettis restaurant, paid more than $2,000 to hold

a Christmas party at one of Orazettis restaurants. GA 293-96.

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formal approval of his application to develop 828

Bridgeport Avenue the mailing charged in the mail fraud

count for which defendant was convicted. GA 136. As a

result of obtaining approval of this project in June 2006,

defendant used the approval to obtain $6.5 million of

financing from New Alliance Bank. GA 274-76. Hadapproval not been obtained in June 2006, defendant would

not have been able to secure financing under the terms of

his loan agreement with New Alliance Bank. GA 206,

274-77.

Defendant paid tens of thousands of dollars of cash

bribes to the mayor for the mayors help in obtaining

approval of the 828 Project. GA 226, 310-19. Defendant

admitted to his friend that defendant bribed the mayor

$50,000 to obtain the necessary votes on the 828 Project.GA 226. Defendant also admitted to Commissioner

Sylvester that the mayor took $30,000 from defendants

safe and explained to defendant that this would help

defendant. GA 312-13.

3. Defendant hid his bribes from federal

scrutiny.

At about the same time that defendant was providing

the mayor with cash bribes, defendant was hiding his cashfrom the IRS. GA 248. From July 2006 through November

2006, defendant structured cash deposits into his corporate

and his fathers bank accounts at two different banks,3

Defendants 80 year old father pled guilty to one count3

(continued...)

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frequently depositing $9,000 or $9,500 in cash. GA 265-

73, 278-80. Shortly after the bribe payments were made

and the structuring began, defendant was interviewed by

the IRS. GA 210-13. At a July 14, 2006 interview,

defendant falsely represented that he had less than $5,000

in cash. GA 213, 248.Contrary to defendants statementto the IRS, witnesses testified that defendant had

approximately $1 million in cash in his office during 2006.

GA 223-25, 263.

4. Defendant corruptly gave benefits to other

public officials.

Defendant also corruptly provided benefits to Shelton

public officials other than the Shelton mayor. In December

2006, defendant used more than $2,000 in cash to obtain$150 gift certificates for a Shelton restaurant. GA 144-47.

Defendant gave these certificates to P & Z commissioners

who voted in favor of defendants 828 Project with the

exception of Commissioner Hargar who had previously

refused any gift from defendant. GA 203-205, 209, 297,

354. Defendant gave a $150 certificate to Commissioner

Sylvester who assisted the defendant in obtaining approval

of the project. GA 334-36. Defendant also paid more than

$2,000 for a Christmas party at Commissioner Orazettis

restaurant six months after Orazetti wanted a message sentto defendant that he was booking parties. GA 293-96.

(...continued)3

of structuring and was sentenced to 12 months of Probation.

GA 963-965.

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Defendant gave benefits to the Shelton building

official who was required by the Shelton Code to inspect

the defendants developments. After defendant submitted

his 828 Project application, but before it was required to

be inspected, defendant arranged for the building official

to obtain a $4,000 discount by purchasing defendantsvehicle through a Shelton dealership. GA 63-83. The

transaction was designed to hide the discount. In April

2006, defendant arranged to trade in his vehicle for

approximately $31,000. GA 75. He dictated that the

dealership resell the truck to the Shelton building official

for approximately $27,000. GA 66. Defendant then

overpaid the dealership on two other vehicles to ensure

that the dealership did not lose any money on the

transaction. GA 72-78.

5. The defense case.

At trial, defendant called six witnesses. The defense

sought to prove that defendants payments and benefits

provided to the mayor and other public officials were not

corrupt bribes but rather insignificant gestures of kindness

permitted under the Shelton Code of Ethics. GA 346.

Defense witnesses sought to undermine defendants

admissions that he had provided tens of thousands of

dollars of cash bribes to the mayor. GA 341. Defensewitnesses described defendant as a liar and exaggerator

who could not be trusted to tell the truth. GA 342-43.

One witness called by the defense, Commissioner

Hargar, testified that after being elected to the P & Z

Commission in 2005, she received a fruit basket from

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defendant. GA 347-49. Commissioner Hargar advised

defendant in December 2005 not to provide any gifts to

public off icials. GA 352-53. Hargar was the only

commissioner who voted in favor of the 828 Project not to

receive a $150 certificate from defendant. GA 354.

Defendant exercised his right not to testify.

B. Relevant proceedings

1. Defendants motion to dismiss the honest

services mail fraud count

On November 6, 2008, a federal grand jury indicted

defendant on seven charges, including, as relevant here,

honest services mail fraud. DA 5. Fourteen months later,

on January 29, 2010, defendant moved to dismiss thehonest services mail fraud count. See DA 27 (Docket

Entry #243 (Motion to Dismiss Count Three of the

Indictment)). Defendant argued that the honest services

fraud statute, 18 U.S.C. 1346, was unconstitutionally

vague in all its applications and therefore void. Noting the

pendency of the Skilling v. United States case before the

Supreme Court, defendant explained that he was

preserving a constitutional challenge to the honest services

fraud statute.

The Government responded to the motion by

explaining that: (1) defendant could quite easily

understand that his conduct in bribing and rewarding

public officials with intent that they use their office to

benefit him was prohibited conduct proscribed by section

1346; and (2) federal courts had uniformly construed the

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mail fraud statute to cover the situation where public

officials received bribes and kickbacks thereby depriving

the citizenry of their intangible rights to good and honest

government. See DA 27 (Docket Entry #251

(Governments Response to Defendants Motion to

Dismiss Count Three of the Redacted Indictment)). Thecourt denied the motion to dismiss the mail fraud count in

an Order dated February 17, 2010. See DA 28 (Docket

Entry #257).

2. Proposed jury instructions the charge

conference

Prior to the corruption trial, the Government proposed

an instruction regarding honest services in its

preliminary requests to charge. See GA 514-17. At no timefrom the Governments submission of its proposed charge

on February 23, 2010 to the charge conference on March

23, 2010, did defendant object to the Governments

proposed request. Nor did defendant choose to offer his

own instruction regarding the meaning of the phrase

intangible right to honest services in the month he had

to review the Governments proposed charge other than to

suggest that the district court read section 1346 to the

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jury. See DA 29 (Docket Entry #268 (Defendant James4

Bottis Preliminary Requests to Charge, Request No. 18)).

On March 23, 2010, the court held a charge conference

to discuss the jury instructions to be given to the jury

subsequent to the closing arguments. GA 355-43. Theinitial draft of instructions prepared by the district court

for the charge conference did not contain any definition of

the phrase intangible rights to honest services. The

Government requested that the district court provide the

jury with a definition of intangible right to honest

services by using the proposed instruction offered by the

Government. GA 400-405.

The Governments proposed instruction explained its

honest services fraud theory solely in terms of bribery.GA 514-17. The instruction provided that:

A public official or local government employee

in Connecticut owes a duty of honest, faithful and

disinterested service to the public and to the

government that he or she serves. The public relies

on officials of the government to act for the public

interest, not for their own enrichment. A

government official who uses his or her public

Defendants proposed mail fraud instruction was4

incorrect in that it suggested that the Government was required

to prove a scheme to defraud to obtain money and property and

a scheme to defraud the citizens of Shelton of the intangible

right to the honest services of its public officials. See DA 29

(Docket Entry #268 (Proposed Request No. 19)).

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position for self-enrichment breaches the duty of

honest service owed to the public and the

government. So, for instance, a public official who

accepts a bribe or corrupt payment breaches the

duty of honest, faithful, and disinterested service.

While outwardly appearing to be exercisingindependent judgment in his or her official work,

the public official instead has been paid privately

for his or her public conduct. Thus, the public is

not receiving the public officials honest and

faithful service to which it is entitled.

The Government alleges that defendant JAMES

BOTTI engaged in a scheme to defraud the

citizens of Shelton, Connecticut of the intangible

right to the honest services of its public officials byproviding benefits to such officials with intent to

influence such officials. . . . Previously, in Request

# 34, I defined for you the definition of a bribe

and you may refer to that definition in considering

whether defendant JAMES BOTTI engaged in a

scheme to defraud the public of its intangible right

to the honest services of its public officials.

See GA 515-16 (footnotes omitted). The instruction

proposed using a bribe example to illustrate for the juryhow the public could be deprived of honest services from

a public official who had received corrupt bribe payments.

GA 515-16.

At the charge conference, defendants counsel noted

that the charge was not a generic definition of theft of

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honest services but a description of theft of honest

services as alleged in this case. GA 404. Indeed, earlier

in the charge conference, defendants counsel had argued

that this is a clear bribery case. GA 361. The district

court agreed that the Governments proposed instruction

gives the jury a useful general definition [of the phraseintangible right to honest services] and then ties it in to

some of the particular aspects of the case, in ways, I

suppose, the defendant might not welcome. GA 404-405.

The district court indicated that it would give the jury an

instruction in terms set forth in the Governments

proposed instruction. GA405.

When defendants counsel was offered an opportunity

to suggest an alternative instruction, counsel first

suggested he would offer something by the end of the dayor before tomorrow. GA 405. When the district court

explained that it was necessary to resolve the issue to

enable the parties to prepare for closing arguments,

defendants counsel indicated that he would defer to your

Honor. GA 405. Thus, defendant did not object or take

exception to the district courts decision to give the jury an

instruction defining the phrase intangible right to honest

services using only a bribery example.

3. The district courts charge

On March 25, 2010, the district court charged the jury

as follows regarding the concept of intangible right to

honest services in reciting the elements of honest services

mail fraud:

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Now, as I stated earlier, the Government has

charged two types of scheme or artifice in the

indictment. One is a scheme or artifice for

obtaining money or property, by materially false or

fraudulent pretenses, representations or promises.

The second is a scheme or artifice to deprive the

citizens of Shelton of the intangible right of the

honest services of their public officials.

Intangible rights are rights to which an

individual or entity is entitled based on law or

custom or practice.

Let me explain to the jury honest services. A

public off icial or local government employee owesa duty of honest, faithful, and disinterested service

to the public and to the government that he or she

serves. The public relies on officials of the

government to act for the public interest not for

their own enrichment. A government official who

uses his or her public position for self-enrichment

breaches the duty of honest services owed to the

public and to the Government.

So, for instance, a public official who accepts abribe or corrupt payment [breaches] the duty of

honest, faithful and disinterested service[.] [W]hile

outwardly appearing to be exercising independent

[judgment] in his or her official work, the public

official instead has been paid privately for his or

her public conduct. Thus, the public is not

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receiving the public officials honest and faithful

service to which it is entitled.

GA 895-96.5

After the district court gave the charge to the jury,defendants counsel indicated he had no objection to the

charge as given, other than to preserve objections made

during the charge conference. GA 956. As noted earlier,

defendants counsel did not object during the charge

conference to the district courts instruction regarding

honest services.

4. The verdict

The district court gave the jury a Verdict Form toensure unanimity regarding the two schemes charged

deprivation of honest services and a scheme to obtain

money or property. DA 77-79. The jury began

deliberations on March 25, 2010 and deliberated for six

days. DA 31-32. On April 1, 2010, the jury convicted

defendant of honest services mail fraud (Count Three).

DA 32, 78. The jury indicated on the verdict sheet that

While the March 25, 2010 transcript says bridges,5

the district courts written instruction and the district

courts opinion denying the motion for a new trial says

breaches. The other revisions from the transcript set

forth above in brackets have been made because the

courts written charge, and the charge recited by the

district court in denying defendants motion for a new

trial, reflect the bracketed language. DA 286.

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defendant engaged in a scheme or artifice to deprive the

citizens of Shelton of the intangible right of honest

services of their public official or officials by use of the

mail to execute a scheme or artifice. DA 78. The jury was

unable to reach a verdict on the conspiracy charge (Count

One), the 666 bribery charge (Count Two) and themoney or property prong of the mail fraud count (Count

Three). DA 77-78. The district court declared a mistrial on

these counts. DA 32; GA 957-62.

5.Defendants motion for a new trial

Subsequent to the verdict, defendant moved for a new

trial. DA 98-100. In his memorandum in support of this

motion, defendant argued that the district court could not

consider any evidence offered to prove that defendantbribed the mayor due to the jurys failure to render a

verdict on the bribery count. Thus, defendant suggested

that the entire theory of the Governments honest services

mail fraud case was limited to three acts undertaken by

defendant: (a) providing $150 certificates to P & Z

commissioners who voted in favor of the 828 Project; (b)

giving a $150 certificate and free construction services to

a Commissioner Sylvester who requested Commissioner

Orazetti to vote in favor of the 828 Project; and (c) holding

a Christmas party at Commissioner Orazettis restaurantafter Orazetti voted in favor of the 828 Project. See DA 34

(Docket Entry #339 (Defendants Memorandum of Law in

Support of Motion for New Trial at 8-9)). Each of the

aforementioned acts described by defendant were alleged

by the Government at trial to be corrupt payments made by

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defendant to public officials that deprived the public of its

right to receive honest services from its public officials.

In other words, prior to the Supreme Courts ruling in

Skilling v. United States, 130 S. C t. 2896 (2010), Black v.

United States, 130 S. Ct. 2963 (2010) and Weyhrauch v.United States, 130 S. Ct. 2971 (2010), defendant argued

that the Governments honest services mail fraud

conviction rested on three instances of bribery. Defendant

did not argue that the district court erred in providing the

jury with an ambiguous or misleading jury instruction.

Subsequent to the Supreme Courts ruling in the

aforementioned cases, defendant sought to supplement his

arguments for a new trial. In short, defendant reversed

course in a supplemental memorandum by arguing thatdefendant was somehow convicted on a non-bribery

theory. Specifically, defendant argued for the first time

that: (a) the district court erred in its charge to the jury; (b)

the Governments theory at trial might not have been a

bribery theory; and (c) the jury might have convicted

defendant of honest services mail fraud only because it

speculated that some unnamed public official engaged in

an act of self-enrichment unconnected to any bribe or

benefit provided by defendant. See DA 199-216

(Defendants Supplemental Memorandum in Support ofMotion for New Trial and/or Judgment of Acquittal).

Defendant did not indicate what the Governments so

called non-bribery theory could be. Nor did defendant

point to any indictment allegation, trial evidence, opening

statement remark or closing argument by the Government

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that would suggest that the jury was presented with any

non-bribery theory.

6. The district courts denies the motion for a

new trial

On September 8, 2010, the district court issued a

Ruling denying defendants motion for a new trial and

judgment of acquittal. DA 272-90. The district court

explained that the Rule 33 question in this instance is not

a close one. DA 280. In denying the Rule 33 motion, the

court detailed the evidence demonstrating that defendant

engaged in a scheme to deprive the public of its right to

honest services by providing monetary benefits to public

officials. DA 280-82. As the court explained:

There is ample evidence that [defendant]

extended numerous favors to several Shelton public

servants for the purpose of obtaining in return

favorable action on his development applications,

particularly the 828 Project, in derogation of the

Shelton citizenrys right to their public servants

honest services. Viewing the governments trial

evidence cumulatively, and not particular incidents

in isolation, I conclude that the evidence was

sufficient to support [defendants] conviction forhonest services mail fraud. Letting the jurys

verdict stand does not work a manifest injustice.

Accordingly, [defendants] motion under Rule 33

for a new trial will be denied.

DA 283-84.

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The district court also rejected defendants claim that

his conviction needed to be vacated based on the Supreme

Courts decision in Skilling. Subsequent to the Skilling

decision, defendant speculated for the first time that it was

possible that the jury convicted him of honest services

mail fraud under some non-bribery theory heldimpermissible by Skilling. In rejecting this argument, the

district court explained:

There is no substance to this argument.

[Defendant] nowhere suggests what this

alternative, constitutionally impermissible theory of

wrongdoing might be. That is not surprising, since

there is no evidence in the record of any sort of

wrongdoing other than [defendants] bribery of

public officials. The indictment did not charge anyalternative theory. Neither the government nor the

defendant argued any other theory at trial. Neither

the jury charge nor the verdict from suggests any

other theory. There were no facts, evidence or

testimony presented at trial that could reasonably

support or give rise to an alternative theory.

[Defendant] suggests none. To conclude that the

jury might have convicted the Defendant on some

theory of honest services mail fraud other than the

bribery theory suggested in the jury charge wouldrequire pure speculation on the Courts part, and an

assumption that the jury acted in an unreasonable

manner in contriving some grounds for conviction

other than the obvious one clearly supported by the

record. The Court declines to engage in such

speculation or question the judgment of a jury

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which was, from all indications, careful and

thorough in its consideration of the case.

DA 287.

Summary of Argument

Defendants conviction for honest services mail fraud

was proper and should be affirmed. The SupremeCourts

Skilling decision does not provide defendant with any

relief as he was properly convicted of honest services

fraud on a bribe theory. Skilling made it clear that [a]

criminal defendant who participated in a bribery or

kickback scheme . . . cannot tenably complain about

prosecution under 1346 on vagueness grounds. Skilling,

130 S. Ct. at 2934. Thus, the only claim that defendantBotti preserved in the district court that section 1346 is

unconstitutionally vague or facially invalid was properly

rejected by the district court.

The Government offered only one theory in support of

the honest services fraud count a bribe theory. As the

district court explained in rejecting defendants motion for

a new trial, [n]either the government nor the defendant

argued any other theory at trial. DA 287. Defendants

post-Skilling speculation that the jury might haveconvicted him on some non-bribery theory is baseless.

Defendant fails to demonstrate what the non-bribery

theory could be or to point to any argument made by the

Government in which it articulated this so called non-

bribery theory.

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Not only did the indictment allege a bribe scheme, the

Government repeatedly argued prior to, and during trial,

that it was relying on defendants corrupt payments to

influence public officials as its theory to support the

honest services fraud count. There is absolutely no reason,

aside from defendants post-Skilling speculation, toconclude that the jury rejected the evidence of corrupt

payments and relied solely upon some non-bribery

evidence to convict defendant of honest services mail

fraud.

Defendants reliance on the jurys inability to reach a

verdict on the 666 bribery count is misplaced. Indeed,

defendant completely misconstrues the meaning of a hung

jury. It is well settled that a hung jury on a particular count

means absolutely nothing. Yeager v. United States, 129 S.Ct. 2360, 2368 (2009). Therefore, defendants reliance on

the fact that the jury hung on the 666 count should be

summarily rejected.

The Government did prove that defendant provided

corrupt payments and benefits to the Shelton mayor and

other Shelton public officials with the intent to influence

those officials. Nevertheless, the jury did not have to find

the payment of a bribe to convict defendant of honest

services fraud. Thus, there was no requirement that thedistrict court instruct the jury that it had to find a bribe to

convict on the mail fraud count.

Finally, the district courts instruction to the jury

regarding honest services fraud was an eminently proper

charge in light of Skilling. When explaining the honest

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services fraud scheme, the charge provided only one

theory for the jury to convict a bribe theory. Defendant,

who failed to object to the charge, cannot establish that the

charge was error, let alone plain error. Nor can he establish

that he was prejudiced by the instruction, an instruction his

counsel noted was a description of theft of honest servicesalleged in this case. Because the district courts instruction

was carefully tailored to the facts of the case, defendant is

not entitled to a new trial by his belated challenge to the

honest services jury instruction.

Argument

I. The district court properly instructed the jury by

tailoring the charge to the singular bribe theory

offered in support of honest services fraud andusing a bribe example to demonstrate how a

public official deprives citizens of the intangible

right to the public officials honest services.

A. Governing law and standard of review

Rule 52(b) of the Federal Rules of Criminal Procedure

provides courts of appeals with a limited authority to

correct errors that were forfeited because they were not

raised in the district court. That Rule states that [a] plainerror that affects substantial rights may be considered even

though it was not brought to the courts attention.Underplain error review, an appellate court may, in its

discretion, correct an error not raised at trial only where

the appellant demonstrates that (1) there is an error; (2)

the error is clear or obvious, rather than subject to

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reasonable dispute; [and] (3) the error affected the

appellants substantial rights, which in the ordinary case

means it affected the outcome of the district court

proceedings . . . . United States v. Marcus, 130 S. Ct.

2159, 2164 (2010) (quotingPuckett v. United States, 129

S. Ct. 1423, 1429 (2009)); see alsoJohnson v. UnitedStates, 520 U.S. 461, 467 (1997); United States v. Cotton,

535 U.S. 625, 631-32 (2002); United States v. Deandrade,

600 F.3d 115, 119 (2d Cir.), cert. denied, 130 S. Ct. 2394

(2010). When all three requirements are satisfied, the

court of appeals has authority to order correction, but [it]

is not required to do so. United States v. Olano, 507 U.S.

725, 735 (1993); Puckett, 129 S. Ct. at 1429. Instead, a

reviewing court may . . . exercise its discretion to notice

a forfeited error only if a fourth condition is satisfied:

the error seriously affect[s] the fairness, integrity, orpublic reputation of judicial proceedings.Johnson, 520

U.S. at 467 (citation omitted).

To affect substantial rights, an error must have been

prejudicial and affected the outcome of the district court

proceedings. Olano, 507 U.S. at 734. This language used

in plain error review is the same as that used for harmless

error review of preserved claims, with one important

distinction: In plain error review, [i]t is the defendant

rather than the Government who bears the burden ofpersuasion with respect to prejudice. Id. In the harmless-6

This Court has held that in cases where the error sought6

to be noticed arises from an intervening judicial decision, the

burden shifts to the Government to prove the absence of

(continued...)

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error context, the Supreme Court has held that, to

determine whether a constitutional error was prejudicial,

the reviewing court must ask whether there is a

reasonable possibility that the [error] complained of might

(...continued)6

prejudice to the defendant. See United States v. Viola, 35 F.3d

37, 42 (2d Cir. 1994); United States v. Ballistrea, 101 F.3d 827,

835 (2d Cir. 1996).

Violas modified plain error standard is, we submit,

inconsistent with Olanos facially unqualified allocation of the

burden of persuasion in all cases involving a forfeited error.

Violas reasoning, moreover, has been effectively superseded

by the Supreme Courts later decision in Johnson v. United

States. Johnson involved an intervening change in law onappeal, and the Supreme Court emphasized that Olanos

standards including the requirement that the defendant prove

prejudice apply in those circumstances. This Court has

acknowledged that Johnson has called into doubt the

continuing viability of the modified plain-error approach,

United States v. Stewart, 433 F.3d 273, 294 n.5 (2d Cir. 2006),

but has not yet had occasion to definitively resolve the issue.

See, e.g., United States v. Bahel, __ F.3d __, No. 08-3327-cr,

2011 WL 5067095, at *18 (2d Cir. Oct. 26, 2011); United

States v. Kaplan, 490 F.3d 110, 124 & n.6 (2d Cir. 2007);

United States v. Williams, 399 F.3d 450, 457 n.7 (2d Cir. 2005)(citing United States v. Thomas, 274 F.3d 655, 668 n.15 (2d

Cir. 2001) (en banc)) (assuming, for purposes of pending

appeal, that the burden to show that an error, arising from an

intervening change in law, affected substantial rights remains

with the defendant). No other court of appeals has adopted a

modified burden-shifting approach before or afterJohnson.

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have contributed to the conviction. Chapman v.

California, 386 U.S. 18, 23 (1967) (quoting Fahy v.

Connecticut, 375 U.S. 85, 86-87 (1963)). Thus, to show

that a forfeited constitutional error had an effect on

substantial rights, a defendant must show at least a

reasonable possibility that, but for the error, the outcomeof the proceeding would have been different.

Even when an error affects substantial rights under

Olanos third prong (or is assumed to do so), Olanos

fourth prong limits reversal to cases in which the error

seriously impairs the fairness or reliability of the

proceedings. In cases involving instructional error, the

Supreme Courts decisions in Johnson and Cotton make

clear that a reviewing court should not exercise its

discretion to correct the error when, for example, therelevant evidence is overwhelming and essentially

uncontroverted. Johnson, 520 U.S. at 470; Cotton, 535

U.S. at 633. In other words, Johnson and Cotton instruct

that reversal of a conviction based on a forfeited claim of

instructional error is unwarranted, underOlanos fourth

prong, when the outcome would have been the same

absent the error. And in Puckett, the Court again

emphasized that, regardless of whether a defendant is able

to satisfy the first three parts of the plain-error test, the

fourth component i.e., whether the error seriously affectsthe fairness, integrity or public reputation of judicial

proceedings is meant to be applied on a case-specific

and fact-intensive basis. 129 S. Ct. at 1433; see ibid.

(emphasizing that aper se approach to plain-error review

is flawed) (internal quotations omitted).

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A single jury instruction may not be judged in

artificial isolation, but must be viewed in the context of the

overall charge. Cupp v. Naughten, 414 U.S. 141, 147

(1973);see also United States v. Sabhnani, 599 F.3d 215,

237 (2d Cir. 2010), cert. denied, 131 S. Ct. 1000 (2011).

This Court does not review portions of the instructions inisolation, but rather considers them in their entirety to

determine whether, on the whole, [they] provided the jury

with an intelligible and accurate portrayal of the applicable

law. United States v. Glover, 511 F.3d 340, 345 (2d Cir.

2008);see also United States v.Weintraub, 273 F.3d 139,

151 (2d Cir. 2001). Thus, even if a particular instruction,

or portion thereof, is deficient, the reviewing court must

examine the entire charge to see if the instructions as a

whole correctly comported with the law. United States v.

Ferguson, 653 F.3d 61, 76 (2d Cir. 2011) (citationomitted).

B. Discussion

In Skilling, the Supreme Court upheld the

constitutionality of Title 18, United States Code, Section

1346 (hereafter section 1346 ) when the charge involves

a fraudulent scheme to deprive another of honest services

via a bribery scheme. As the SkillingCourt explained, use

of section 1346 in a case charging a bribery schemepresents neither a fair notice nor an arbitrary prosecution

problem. Rather, as the Court held, it has always been as

plain as a pikestaff that bribes . . . constitute honest

services fraud. Skilling, 130 S. Ct. at 2933 (quoting

Williams v. United States, 341 U.S. 97, 101 (1951)). Thus,

Skilling made it clear that [a] criminal defendant who

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participated in a bribery or kickback scheme . . . cannot

tenably complain about prosecution under 1346 on

vagueness grounds.Id. at 2934. Thus, the only claim that

defendant Botti preserved in the district court that

section 1346 is unconstitutionally vague or facially invalid

was properly rejected by the district court. DA 284-88.

In this appeal, defendant contends that: (a) the

Government utilized non-bribery evidence; (b) the jury

might have convicted him of honest services mail fraud on

a non-bribery theory since they did not convict

defendant on the bribery count; and (c) the jury

instructions were flawed by somehow inviting the jury to

convict on a theory that was not argued. None of these

claims has any merit.

1. The Governments only honest services

fraud theory was a bribe theory.

The Government offered only one theory in support of

the honest services mail fraud count a bribe theory. As

the district court explained in rejecting defendants motion

for a new trial, [n]either the government nor the

defendant argued any other theory at trial. DA 287.

Indeed, since the defendant in this case was a developer,

and not a public official, the only theory of honest servicesfraud argued was that defendant provided corrupt

payments to public officials with the intent to influence

such officials. There was no suggestion that the mayor or

some other public official had an undisclosed conflict or

was intending to profit in some way other than to receive

a corrupt payment from the defendant. In short, this is not

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a case where two alterative theories were offered to the

jury and one of those theories was unconstitutional. Cf.

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

Pulido, 555 U.S. 57 (2008) (requiring harmless-error

review even assuming arguendo that defendant could

demonstrate instructional error).

Nevertheless, defendant claims on appeal that the jury

did not find [him] guilty of honest services mail fraud by

way of a bribery or kickback scheme . . . . Brief for

Appellant James Botti (Def. Br.) at 17. He speculates

that the jury might have convicted him on some non-

bribery theory. Defendant fails once again, however, to

demonstrate what the non-bribery theory could be or to

point to any argument made by the Government in which

it articulated this so called non-bribery theory. Thereason is simple. There was only one theory charged,

presented and argued to the jury regarding honest service

fraud and it was a bribe theory.

The bribe theory underlying the honest services prong

of the mail fraud count was evident from the indictment

through the closing arguments. The indictment alleged

repeatedly that defendant provided benefits to public

officials with the intent to influence those officials to help

defendant. See,e.g., DA 57-64 (Indictment 10-15, 17,23, 35, 36, 44(a)-44(d), 44(f)-44(i), 44(k), and 44(n)-

44(o));see also DA 58, 61 (subheadings BOTTI Expects

the Benefits he Provides to Public Official # 1 will Result

in Favorable Treatment forBOTTI and his Construction

Projects; BOTTI Provides Things of Value to Public

Officials For Their Assistance.). Defendant seeks to

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The mail fraud count (Count Three) does not

incorporate the Title 18, Section 666 bribe count (Count

Two) because it would be duplicitous to charge two

violations in one count. See, e.g., United States v.

Sturdivant, 244 F.3d 71 (2d Cir. 2001).But defendant isincorrect when he suggests that the mail fraud count did

not contain allegations of corrupt payments made by

defendant to influence public officials.

Not only did the indictment allege a bribe scheme, the

Government repeatedly argued prior to, and during trial,

that it was relying on defendants corrupt payments to

influence public officials as its theory to support the

honest services mail fraud count. For example, the

Government submitted a proposed jury charge thatexplained that defendant engaged in a scheme to defraud

the citizens of Shelton, Connecticut of the intangible right

to the honest services of its public officials by providing

benefits to such officials with intent to influence such

officials. GA 515-16. Similarly, during the opening

statement, the Government made it clear that:

the evidence will show that James Botti bribed

public officials.

* * *

At the end of this trial, you will be asked to

decide if James Botti engaged in acts of public

corruption by bribing public officials with the

intent to influence them so that they would think of

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James Bottis interest, rather than the public

interest.

GA 38-41 (emphasis added).

Finally, during its closing argument, the Governmentreiterated that the theory of its honest services fraud case

was a bribery theory. Throughout the closing arguments,

the Government highlighted how defendant provided

benefits to various public officials, and in particular the

mayor, with the intent that these officials would serve

defendants interests. See, e.g., GA 670-73 (Government

argued that to get his 828 Project approved, defendant paid

tens of thousands of dollars in cash to the mayor who was

willing to put his interest ahead of the publics interest);

GA 807 (Government argued in rebuttal that defendantadmitted he bribed the mayor because defendant needed

the votes from the P & Z commissioners and the mayor

could deliver the votes).

Rather than identify a non-bribery theory, defendant

singles out a piece of evidence or some witness testimony

that, standing alone, is not a bribery allegation. For

example, defendant cites testimony demonstrating that he

instructed his subordinates not to disclose their affiliation

with the defendant when they spoke at a public hearing insupport of defendants 828 Project. Def. Br. at 6. The cites

provided are all to the testimony of witnesses, not to

closing arguments made by Government counsel.

Nevertheless, defendant claims that the Government

argued to the jury that his act in sending his subordinates

to the hearing was the basis for the jury to convict the

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[defendant] of Count Three, Honest Services Mail Fraud.

Id. at 5-6 (emphasis added). Defendants failure to point

out where this supposed argument was made demonstrates

that the claim is baseless.

The mail fraud count had a money and property prongand an honest services fraud prong. Indeed, the

Governments money and property theory was that

defendant engaged in fraudulent conduct to obtain

approval of the 828 Project in order to obtain millions in

bank financing. The money and property fraud certainly

included evidence that defendant directed others to lie at

a public hearing. See, e.g., GA 253-61. But contrary to

defendants suggestion, the Government never argued that

this evidence was the reason to convict defendant of

honest services mail fraud. In fact, the Government7

argued in closing that defendants efforts to sway public

opinion by directing subordinates to lie at the May 2006

public hearing failed. GA 661. The Government argued

that after defendant failed to sway public opinion, he paid

tens of thousands of dollars to the mayor. The Government

argued that these cash payments to the mayor deprived the

public of its right to the honest services of the mayor since

the mayor was placing his interests above those of the

public. GA 661-68.

During the closing, when the Government highlighted7

this evidence, it specifically noted that defendants scheme to

defraud was also an effort to make money for himself.

GA 723-24.

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Thus, there is absolutely no reason, aside from

defendants post-Skillingspeculation, to conclude that the

jury rejected the evidence of corrupt payments and relied

solely upon the evidence that defendant caused others to

lie at a public hearing to convict defendant of honest

services mail fraud. Significantly, the Government neverargued that theory. Moreover, such an argument makes no

sense as causing people to lie to public officials does not

deprive the public of its right to receive honest services

from those public officials . In sum, defendants post-

Skillingspeculation is baseless.

In any event, in every honest services fraud

prosecution, there will be evidence that does not, by itself ,

demonstrate a bribe or kickback. While Skillingholds that

the theory of honest services fraud must be a bribe orkickback theory, nothing in the decision precludes the

Government from offering a piece of non-bribery evidence

during an honest services fraud prosecution. For example,

evidence that a developer had cash and tried to hide it

would be admissible in a prosecution of the developer for

honest services fraud when the developer used the cash to

bribe a public official to obtain approval of a project.

Nevertheless, the evidence that the developer hid cash, and

the fact that the Government referred to this evidence in

closing, does not somehow convert the Governmentstheory of that case from a bribe theory into a non-bribery

theory.

Hence, the Government was certainly entitled to

introduce evidence that did not demonstrate, by itself, that

defendant Botti paid or offered to pay a bribe. Thus,

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evidence that defendant wanted his subordinates to lie at

a hearing, and that he hid his vast sums of cash, was

properly admitted. The fact that the Government referred

to this evidence in closing, however, does not convert the

honest services fraud theory into a non-bribery theory. Nor

did the inclusion of this evidence in the Governmentsresponse in opposition to defendants new trial motion

mean that there was a non-bribery theory.

Thus, defendants reliance (Def. Br. at 28-29) on

United States v. Coniglio, 417 Fed. Appx. 146 (3d Cir.

2011), is seriously misplaced. In Coniglio, the

Government had argued (pre-Skilling) that the concealed

conflict object (a non-bribery theory) alone was a

sufficient basis to convict. Seeid. at 149. See also Bruno,

2011 WL 5555611, at *5 (where Governments theory ofhonest services fraud was based on failure to disclose

material conflicts of interest, Government concedes post-

Skilling that honest services fraud conviction must be

vacated). Nothing of the sort happened in defendant

Bottis case as the Government never charged or argued

that the deprivation of honest services was based on a

public officials conflict of interest.

Finally, when defendant argued in his new trial motion

that he had no fraudulent intent and that he acted in goodfaith in dealing with the 828 Project application, the

Government properly noted defendants actions in

directing others to lie and in hiding his cash. DA 115.

Nothing in the Governments submission, however,

suggested that the theory of the honest services fraud case

was based on this so called non-bribery evidence. More

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precisely, the Government never suggested that this

evidence was sufficient, standing alone, to convict

defendant of honest services mail fraud.

In sum, Judge Haight was correct when he concluded

there was only one theory argued and that the theory wasa bribe theory.

2. The jurys inability to reach a verdict on

some counts has no meaning.

Defendant claims that the jurys inability to reach a

verdict on the 666 bribery count somehow supports his

claim that the honest services fraud conviction was based

on a non-bribery theory. Def. Br. at 26-29. Thus, rather

than identify what the so-called non-bribery theorymight be, defendant points to the jurys decision to hang

on the 666 bribery count (Count Two) and tries to give

meaning to the jurys inability to reach a verdict. Because

defendant completely misconstrues the meaning of a hung

jury, his reliance on the hung jury should be rejected.

It is well settled that a hung jury means absolutely

nothing. In Yeager v. United States, 129 S. Ct. 2360, 2368

(2009), the Court explained that:

there is no way to decipher what a hung count

represents. Even in the usual sense of relevance,

a hung count hardly make(s) the existence of any

fact . . . more probable or less probable. Fed. Rule

Evid 401. A host of reasons sharp disagreement,

confusion about the issues, exhaustion after a long

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trial, to name but a few could work alone or in

tandem to cause a jury to hang. To ascribe meaning

to a hung count would presume an ability to

identify which factor was at play in the jury room.

But that is not reasoned analysis; it is guesswork.

Such conjecture about possible reasons for a jurysfailure to reach a decision should play no part in

assessing the legal consequences of a unanimous

verdict that the jurors did return.

Id. (emphasis added, footnotes omitted).

In denying defendants motion for a new trial, the

district court concluded that a hung count means nothing

in post-trial analyses[;] [i]t cannot be made to mean

anything. DA 279. Indeed, Judge Haight cited Yeagerandthe precise language quoted above in holding that the hung

jury in defendants case could play no part in the

evaluation of the trial evidence. See also Bruno, 2011 WL

5555611, at *7 (citing Yeagerfor proposition that a hung

jury is a nonevent).

Defendant suggests that Yeager is distinguishable

because defendants case involved a hung jury coupled

with a conviction while Yeagerinvolved a hung jury and

an acquittal. Def. Br. at 27. In rejecting this argument, thedistrict court held there is no principled difference

between the two. DA 279. Defendant contends, without

citing a single case in support, that the district courts

conclusion is erroneous. Defendants contention is

baseless.

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In Yeager, the Court focused on the acquitted counts,

not the counts upon which the jury hung, to decide

whether there was a double jeopardy bar to a retrial. In

holding that the hung jury counts were meaningless, the

YeagerCourt explained that such a result should play no

part in evaluating the counts that a jury did decide. 129 S.Ct. at 2368. Because there were acquittals in Yeager, the

Court necessarily looked to the acquitted counts to

determine whether a retrial on the hung counts would

violate double jeopardy. It was the acquitted counts that

the Court considered, not the hung counts.

Here, defendant Botti has been convicted of honest

services mail fraud. The jury at the corruption trial did not

acquit him on any charge. If a hung jury is a meaningless

event when the jury acquits on some counts, a hung jury isequally meaningless when a jury convicts on some count.

Cf.United States v. Jackson, 658 F.3d 145, 152-53 (2d

Cir.) (court cites Yeagerwhen a jury convicts on one count

while hanging on other counts and holds that the hung jury

is of no avail to a defendant seeking to prevent a retrial on

double jeopardy grounds),petn for cert. filed, No. 11-7249

(Nov. 2, 2011). In short, Judge Haights conclusion that a

hung jury is always meaningless and that this concept

applies whether the jury acquits on other counts or

convicts on other counts, is correct.

In sum, the jurys decision to hang on the 666 bribery

count is both meaningless and irrelevant to the issues

before this Court. Nevertheless, in an effort to make use of

the hung jury on the 666 count, defendant conjures up a

theory that an actual bribe must be made to sustain an

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honest services fraud conviction. He suggests that [a]

guilty verdict on the bribery charge would logically be an

essential preliminary finding in order for the jury to

conclude, perSkilling, that the [defendant] was guilty of

Count Three, Honest Services Mail Fraud by way of a

bribery (or kickback) scheme. Def. Br. at 17. Defendantconcludes ipse dixit that [b]ribery is . . . an essential

element that must be proven in order to convict on honest

services mail fraud. Def. Br. at 27. In denying

defendants motion for a new trial, the district court held

that the actual payment of a bribe is not an essential

element of honest services mail fraud. DA 282. The

district court was correct.

To be clear, the Government did prove that defendant

provided corrupt payments and benefits to the mayor andother public officials with the intent to influence those

officials. See Statement of Facts. Nevertheless, the jury did

not have to find the payment of a bribe to convict

defendant of honest services mail fraud. Thus, there was

no requirement that the district court instruct the jury that

it had to find a bribe to convict on the mail fraud count. In

short, defendant is mistaken when he suggests that an

actual bribe is an essential element of an honest services

mail fraud.8

The fact that defendant provided multiple benefits to8

Shelton public officials over many years from 2001 to 2006

does not mean that there was more than one bribery scheme to

deprive Shelton of its right to honest services from its public

officials. Cf. United States v. Ganim, 510 F.3d 134, 145 (2d

(continued...)

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In ruling that section 1346 is limited to cases involving

bribery or kickback allegations, Skilling did nothing to

alter the basic elements of a mail fraud charge under Title

18, Section 1341. Significantly, the Supreme Court did not

suggest in any manner that an honest services mail fraud

prosecution under section 1341 (as that phrase is definedunder section 1346) requires that the jury find a new

element of the crime e.g., that defendant bribed anyone.

While the Supreme Court held that the scheme

contemplated by the statute must involve allegations of

bribery to pass constitutional muster, the Court did not

suggest that the jury must find that a bribe was paid to

convict a defendant of honest services fraud. Thus, the

suggestion raised by defendant that the court was required

to instruct the jury that a necessary element of the crime

was that a bribe be paidis wrong as a matter of law.

The case law regarding traditional mail fraud is

instructive. In traditional mail fraud cases, there is no

requirement that the Government prove that the defendant

actually realized any gain from the scheme or that the

intended victim actually suffered any loss. SeePorcelli v.

United States, 404 F.3d 157, 162 (2d Cir. 2005) (defendant

does not need to obtain money or property to violate the

mail fraud statute); United States v. Starr, 816 F.2d 94, 98

(2d Cir. 1987) (government not required to show actualinjury, only that defendant contemplated some harm or

injury to victims). Rather, what is required is that a

(...continued)8

Cir. 2007) (specific acts of corruption need not be linked to a

specific benefit).

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defendant used the mail with specific intent to defraud as

part of a scheme to defraud a victim of money or property,

not that anyone actually lost or gained any money.

Similarly, in prosecutions for honest services mail

fraud, the Government is not required to prove, and a juryneed not find, that a defendant succeeded in bribing any

public official. Rather, the crime of honest services mail

fraud requires that: (a) there was a scheme or artifice to

deprive the public of its right to the honest services of its

public officials; (b) the defendant participated in the

scheme with knowledge of its fraudulent nature and with

the specific intent to deprive the public of its right to

honest services from its public officials; and (c) in

execution of the scheme, the defendant caused the use of

the United States mail. Nothing in Skillingchanges theseelements. Rather, Skilling makes clear that a defendant

charged with honest services mail fraud charge has a valid

constitutional challenge to the charge on vagueness

grounds if the scheme charged does not involve a plan to

deprive the public of its intangible right to honest services

via a bribe or kickback scheme. In other words, a

defendant who uses the mail in furtherance of a scheme to

deprive the public of its right to receive honest services

from public officials with the intent to make corrupt

payments to public officials is guilty of honest servicesfraud even if he never succeeds in paying a single bribe.

The following example illustrates the point. A

defendant mails a letter to a local public official requesting

that the official use his official authority to help the

defendant in exchange for a future monetary payment

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the bribe promise. The local public official, who has

previously refused to support legislation that would favor

businesses in the defendants industry, suddenly supports

legislation that favors the defendants business. Thereafter,

the defendant double crosses the public official and

refuses to provide any monetary payment to the publicofficial. In that case, while no bribe was ever paid, the

defendant did engage in a mail fraud scheme to deprive the

local citizens of their right to receive the honest services

of the local official. While outwardly appearing to be

exercising independent judgment in his official work, the

public official instead acted because he hoped to receive

a corrupt payment. Thus, as a result of defendants

conduct, the public did not receive the public officials

honest and faithful service to which it was entitled, even

though no actual bribe was paid.

In sum, there is no requirement that a bribe be paid for

a defendant to be guilty of engaging in honest services

mail fraud. Accordingly, defendants suggestions that in

order to convict him on honest services mail fraud: (a) the

jury was required to convict him of the 666 bribery

count; and (b) the district court was required to charge the

jury that it must find an actual bribe payment is baseless.

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3. The district courts honest services fraud

charge was proper and certainly not plain

error.

The district courts instruction to the jury regarding

honest services fraud was a proper charge. Defendantcannot establish that the charge was error, let alone plain

error. Nor can the defendant establish that he was

prejudiced by the instruction, an instruction his counsel

noted was a description of theft of honest services as

alleged in this case. GA 404. Thus, whether it is

defenda

government reply brief, botti appeal

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