bruno march 7 response

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No. 10-1885

UNITED STATES COURT OF APPEALSFOR THE SECOND CIRCUIT

UNITED STATES OF AMERICAAppellee

JOSEPH L. BRUNODefendant-Appellant

On Appeal from the United States District Courtfor the Northern District of New YorkDocket No. 1 :09-cr-29- 1 (Honorable Gary L. Sharpe)

REPL Y BRIEF OF DEFENDANT -APPELLANTJOSEPH L. BRUNO

William J. DreyerDREYER BOYAJIAN LLP75 Columbia StreetAlbany, NY 12210(518) 463-7784

Abbe David LowellPaul M. ThompsonJeffrey W. MikoniMcDERMOTT WILL & EMERY LLP600 Thirteenth St. , N.Washington, D.C. 20005-3096(202) 756-8000

Attorneys for Defendant-Appellant Joseph L. Bruno

Case: 10-1885 Document: 62 Page: 1 04/07/2011 256876 34


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TABLE OF CONTENTSPage

INTRODUCTION................................................................................................ .ARGUMENT........................................................................................................ .I. THE INDICTMENT MUST BE DISMISSED.............................................A. The Indictment Failed To Charge Mr. Bruno With AnyValid Crime....................................................................................... 3

The Court Must Review The Validity Of The Actual IndictmentReturned Against Mr. Bruno , Not The Hypothetical One TheGovernment Hopes To Seek In The Future........................................ 6Although The Issue Is Not Properly Before The Court At ThisTime, The Statute Of Limitations Would Prevent TheGovernment From Legally Re-indicting Mr. Bruno ...........................

II. THIS COURT MUST CONSIDER THE SUFFICIENCY OF THEEVIDENCE AGAINST MR. BRUNO ......................................................THE GOVERNMNT' EVIDENCE AT TRIAL WASINSUFFICIENT TO PROVE MR. BRUNO GUILTY OF ANYVALID BRIBERY CHARGES .................................................................A. Mr. Bruno Did Not Solicit Or Accept Bribes From Mr. Fassler(Count 3).......................................................................................... 18

III.

Mr. Bruno Did Not Solicit Or Accept Bribes From Mr.Abbruzzese (Counts 4 & 8)............................................................. .CONCLUSION................................................................................................... 29CERTIFICATE OF COMPLIANCE.................................................................... 30

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TABLE OF AUTHORITIESCasesBurks v. United States437 U. S. 1 (1978)...................................................................................... , 13 , 16Hamling v. United States418 U. S. 87 (1974)................................................................................................. 5McNally v. United States483 U. S. 350 (1987).................................................................................. , 14 , 15Mossew v. United States266 F. 18 (2d Cir. 1920)..................................................................................... , 7Richardson v. United States468 U. S. 317 (1984)........................................................................................ , 13Skiling v. United States130 S. Ct. 2896 (2010) ................................................................................... passimUnited States v. Carll105 U. S. 611 (1882)............................................................................................... 5United States v. Ford435 F.3d 204 (2d Cir. 2006) ............................................................................ , 16United States v. GAF Corp.928 F.2d 1253 (2d Cir. 1991) .................................................................................United States v. Ganim510 F.3d 134 (2d Cir. 2007)............................................................................United States v. Grady544 F.2d 598 (2d Cir. 1976)................................................................................... 9United States v. Holland116 F.3d 1353 (10th Cir. 1997) ............................................................................ .14United States v. Ismail

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97 F. 3 d 50 (4th Cir. 1996)...................................................................................... 8United States v. Italiano894 F.2d 1280 (1Ith Cir. 1990) ....................................................................... , 11United States v. Miler84 F.3d 1244 (10th Cir. 1996).............................................................................. .United States v. Miler952 F.2d 866 (5th Cir. 1992)..................................................................... , 15 , 16United States v. Pirro212 F.3d 86 (2d Cir. 2000)..................................................................................... 7United States v. Prigmore243 F.3d 1 (1st Cir. 2001) ...................................................................................United States v. Salmonese352 F.3d 608 (2d Cir. 2003) ...................................................................................United States v. SchaeferNo. Sl:07-CR-498 , 2008 WL 2332369 (S. Y. Jun. 2 2008)............................ 7United States v. SeminerioNo. S:08-CR- 1238 , 2010 WL 3341887 (S. Y. Aug. 20 2010)......................United States v. Wallach979 F.2d 912 (2d Cir. 1992) ................................................................................. .13

Statutes18 U. C. 1346.................................................................................................... 3

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INTRODUCTIONIn its response brief, the government again refuses to accept a simple truth-

that decisions have consequences.In 2009, the government made strategic choice to pursue only

nondisclosure-based charges against Mr. Bruno, rather than also pursuing harder-to-prove bribery offenses. Even after setting the lowest possible bar for itself, thegovernment secured only two convictions out of eight counts , in what was almost

certainly a compromise verdict rendered by a jury that had deliberated for morethan a week, had reported deadlock on multiple occasions, and had received anAllen charge. Since then, the Supreme Court has vindicated arguments that Mr.Bruno pressed since even before this case was brought , by ruling that the "crimeswith which he was charged were not constitutional in the first place. Thegovernment should accept that it took a calculated risk and lost, recognizing theclear differences between Mr. Bruno s case and those honest-services-fraud casesthat survived the Skiling decision. See Bruno Br. at 37-38 (collecting cases). Butinstead, the government is desperately sifting through the ashes of its case in aneffort to find some way to revive its defective prosecution.

This Court should not be swayed by the government' s arguments. Themistakes the prosecution made below were not mere " instructional errors." Ratherthe government based its entire indictment upon charges that were not crimes , and

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now seeks to start over by alleging bribery charges that it could have brought-butchose not to-in January 2009. Moreover, having had one bite at the applealready, the government cannot now use the first trial as a mere rehearsal for a neweffort to convict Mr. Bruno. This Court should review the entirety of the casebelow, recognize both the invalidity of the government' s indictment and theinsufficiency of the government' s evidence at trial, and dismiss the charges againstMr. Bruno with prejudice. Decisions have consequences-even those made by thegovernment.

ARGUMENTTHE INDICTMENT MUST BE DISMISSED.The government acknowledges that its instructions , which it believed were

( c )onsistent with the law at the time " have been fatally undermined by theSupreme Court' s decision in Skillng. See generally Gov t Br. at Point I. Yet thegovernment insists that this Court should view this problem as an instructionalerror, rather than also proceeding to consider the invalidity of the indictment. Insupport of this position, the government makes two principal points: (1) the errorbelow was merely instructional see Gov t Br. at Point I, and (2) because thegovernment intends to file a superseding indictment, the defects in the originalindictment are moot see Gov t Br. at Point IV. The government is incorrect, andthe flawed indictment in this case must be dismissed and cannot be resuscitated.

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The Indictment Failed To Charge Mr. Bruno With AnyValid Crime.In the government' s view, the only error below was that

( c )onsistent withthe law at the time. . . the district court did not require the jury to find a quid proquo an "instructional error" in light of the "new legal standard announced inSkiling. " See Gov t Br. at 22- , 29. That is not what happened below at all; thedefects in the government' s case are far more fundamental.

As Mr. Bruno explained in his opening brief, prior to Skiling, 18 U.~ 1346 was viewed as criminalizing two different courses of conduct-theacceptance of bribes or kickbacks , and the nondisclosure of material information.See Bruno Br. at 11- 13; see also JA000170-171 (government memorandumdiscussing two distinct theories of honest services fraud); JA000263 , 265-268(district court opinion doing same). The government was free , at the time it soughtcharges against Mr. Bruno, to proceed under either or both of these theories.Instead, it chose to charge Mr. Bruno only with the "crime" of nondisclosure. Inresponse, Mr. Bruno moved to dismiss the indictment on the grounds that it did notcharge him with any constitutionally-valid crime.

Through Skillng, the Supreme Court agreed with Mr. Bruno , holding thatnondisclosure of material information was so vague a concept that it could not beembraced within Section 1346 without rendering the entire statute unconstitutional.Skiling v. United States 130 S. Ct. 2896 , 2932 (2010). But nothing in Skiling

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changed the law regarding how to charge , try, or instruct the bribery charges thatthe government now hopes to tack onto its five-year vendetta against Mr. Bruno.Rather Skilling struck down the only crime with which the government chargedMr. Bruno-the failure to disclose material information to the public.

As a result, the government's mistakes below cannot be cast as mereinstructional error for a valid crime sent to the jury under improper directions.From its inception, the government' s case against Mr. Bruno was charged and triedonly as a nondisclosure case. See Bruno Br. at 27-34 (collecting examples ofgovernment agreeing that indictment only charged nondisclosure theory). Thusthe government not only failed to seek instructions on bribery or kickbacks, but italso failed to charge Mr. Bruno with soliciting or accepting such bribes orkickbacks. Therefore, because the only "crime" charged in the indictment is nocrime at all, the indictment is facially void and must be dismissed. See Bruno Br.at 34-38; see also Mossew v. United States 266 F. 18, 21 (2d Cir. 1920)(indictment that does not charge a crime is void).

The government resists this conclusion, but it makes no real effort to pretendthat its indictment survives Skiling. The government stresses that its indictmentand instructions were based upon various "failure to disclose" cases consideredvalid at the time see Gov t Br. at 24- , but these cases were , of course, rejectedby Skiling. See 130 S. Ct. at 2930-2932. The government later claims that a valid

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indictment need not include any mention of quid pro quo because the concept issomehow "embedded" in the legal term of art " intangible right of honest services.See Gov t Br. at 55-56. But "embedded" concepts cannot provide valid noticeunless the words of a statute "fully, directly, and expressly, without any uncertaintyor ambiguity, set forth all the elements necessary to constitute the offence intendedto be punished(. Hamling v. United States 418 U. S. 87, 117 (1974) (quotingUnited States v. Carll 105 U. S. 611 , 612 (1882)). The government cannot arguethat Section 1346' s text possessed such clarity even before the Skiling decision.As a result, the government cannot find comfort or success in their statutorylanguage argument.

Finally, the government points to a handful of phrases in the indictment thatwhen taken together, might-if such cobbling was a proper charging procedure-suggest aspects of a bribery case. But the government cannot and does not arguethat the indictment actually charged that Mr. Bruno solicited or accepted bribesnor does it charge that he at any time intended to be influenced in the performanceof his official duties. See Gov t Br. at 54 n.13 (stating only that Mr. Brunosolicited payments . under circumstances in which it reasonably could be

inferred that they were intended to influence him ). This is not a case like UnitedStates v. Seminerio in which the district court could conclude that a nondisclosure-theory indictment nevertheless made "clear that the concealed conflict was

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secret solicitation and receipt of bribes. See Gov t Br. at 54 (quoting UnitedStates v. Seminerio No. S:08-CR- 1238 , 2010 WL 3341887 at *7 (S. Y. Aug.

, 2010); emphasis in original). Here, the government repeatedly stressed that itsindictment did not charge Mr. Bruno with soliciting or accepting such bribes, andthe district court agreed. See, e. GA38 (district court stating " (t)hat would be aquid pro quo, and I don t believe that' s what the indictment alleges whatsoever.

In short, there should be no dispute that the indictment returned against Mr.Bruno on January 23 , 2009 , was void ab initio because it failed to charge anyvalid crime. In such circumstances , dismissal of the charges is the only properremedy.

The Court Must Review The Validity Of The ActualIndictment Returned Against Mr. Bruno, Not TheHypothetical One The Government Hopes To Seek In TheFuture.

The government argues that, because it "intends to seek a supersedingindictment based on the same underlying evidence and alleging the same statutoryviolations without broadening the charges " this Court should not bother to reviewthe sufficiency of the original indictment. See Gov t Br. at 48-49. But nothing inthis Court' s precedent suggests that the prospect that the government might attemptto re-indict a defendant preempts this Court' s obligation to review a challengedindictment.

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As Mr. Bruno explained in his opening brief, this Court must consider thegovernment' s indictment "as it was actually drawn, not as it might have beendrawn let alone as the government might try to draw it again in the future. SeeBruno Br. at 42 (quoting United States v. Pirro 212 F.3d 86 , 92 (2d Cir. 2000);collecting cases). While this Court has often reviewed defective indictments onappeal , it has never suggested that the possibility of a subsequent indictment hasany relevance such an inquiry. Rather , this Court has a long tradition of reviewingindictments and, when warranted, dismissing them as void. See, e.g., Mossew, 266F. at 21. Accordingly, this Court should review (and reject) the government'faulty indictment now, leaving the district court to consider the validity of any newindictment the government risks pursuing in the future.

The government has raised no authority to the contrary. See Gov t Br. at 49(collecting inapposite cases). Schaefer a district court opinion, is obviouslydistinguishable, because there a valid superseding indictment had already beenfiled whereas here any new indictment is speculative at best. See generally UnitedStates v. Schaefer No. Sl:07-CR-498 , 2008 WL 2332369 (S. Y. Jun. 2 2008).The GAF Corp Court did decline to review a number of appellant' s challengesafter it found a reversible error, but those challenges related to trial errors, not tothe validity of the charging documents. See generally United States v. GAF Corp.928 F.2d 1253 (2d Cir. 1991). And the Prigmore Court in fact did review the

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appellants ' arguments that the charges against them should be dismissed , ceasingits inquiry only after it had determined that the convictions should be reversed butthat the charges could stand:

In the end, we are not persuaded by defendants' arguments forreversal and dismissal. Yet we are convinced that the convictionsshould be vacated and the case remanded for further proceedings. Tosimplify our analysis, we shall begin by explaining why vacatur iswarranted and then proceed to explain why reversal and dismissal isnot. We do not reach the merits of any arguments for vacatur beyondthe one we regard as dispositive(.

United States v. Prigmore 243 F .3d 1 , 16-17 (1 st Cir. 2001) (emphases added).Once a court has decided to vacate a conviction below, it may be reasonable todecline to consider alternative or superfluous arguments supporting that vacaturbut that is no reason to also decline to reach the distinct question of whether to alsodismiss the charges. The government is simply wrong that this Court can or shouldvacate Mr. Bruno s conviction without then considering the deficiency of thegovernment' s indictment against him.

1 The government is correct that, in United States v. Ismail the Fourth Circuit

declined to consider the sufficiency of an indictment after ruling in favor ofappellants, but there the court of appeals ruled that the convictions must bereversed due to insufficient evidence-a decision that operates as an acquittal andbars retrial. See 97 F.3d 50 , 59 n. 3 (4th Cir. 1996). Should this Court do the sameand rule that Double Jeopardy bars the government' s anticipated efforts to retryMr. Bruno under new charges , then the government would be correct that reviewof the indictment may not be necessary. However Ismail provides no support forthe government' s preferred course of conduct, in which this Court would do

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Although The Issue Is Not Properly Before The Court AtThis Time, The Statute Of Limitations Would Prevent TheGovernment From Legally Re-indicting Mr. Bruno.Even if the government' s plans to re-indict Mr. Bruno were relevant, it is not

clear that any subsequent indictment, whether new or superseding, could be validin this case.

As the government concedes, a new indictment relates back to a prior onefor statute-of-limitations purposes "if and only if it does not broaden the chargesmade in the first indictment." Gov t Br. at 49-50 (quoting United States v. Grady,544 F.2d 598 , 601-602 (2d Cir. 1976)); see also Bruno Br. at 38-39 & n. 8. Noticeserves as the touchstone of this doctrine-the statute of limitations is only tolledwith respect to those charges of which the original indictment gives the defendantfair notice. See Grady, 544 F.2d at 601. For that reason, when new chargescontain different elements or rely upon different evidence, then the new indictmentmaterially broadens the original charges and does not relate back. See UnitedStates v. Salmonese 352 F.3d 608 , 622-623 (2d Cir. 2003).

Here, there can be no dispute that the bribery charges envisioned by thegovernment require it to prove additional elements not contained in the originalhonest services charges filed against Mr. Bruno-most notably, the quid pro quo

nothing save for vacating Mr. Bruno s conviction and, therefore, would neverreach the Double Jeopardy issue.- 9 -



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requirement that serves as the hallmark of a bribery case. See Skiling, 130 S. Ct.at 2933-2934 (Section 1346 bribery charges mirror other federal bribery laws).Having insisted for years that the original indictment was valid even though itcharged Mr. Bruno with nondisclosure and only nondisclosure , the governmentcannot credibly claim that the indictment somehow put Mr. Bruno on notice of thevery charges the government insisted it was not pursuing against him. See, e.JAOOO 170-171 (government stressing that indictment charged only "the second ofthe two ' core categories' of honest services fraud: failure to disclose materialconflicts of interest and related material information ; distinguishing nondisclosurecharges from bribery charges); see also Bruno Br. at 27-34 (collecting examples ofall parties viewing indictment as being limited to nondisclosure charges). Theoriginal indictment is simply not broad enough to encompass charges that thegovernment has disclaimed from the date it was handed down by the grand jury.

United States v. Italiano 894 F.2d 1280 (1Ith Cir. 1990), is not to thecontrary. The government is correct that, on the facts of that case, the EleventhCircuit upheld a second indictment issued after the Supreme Court' McNallydecision struck down the doctrine of honest services fraud, notwithstanding adefendant' s argument that the new indictment was barred by the statute oflimitations because it broadened the charges against him. See Gov t Br. at 50-51.But review of the Italiano indictments reveals that both expressly charged the

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defendant with a bribery scheme. See 894 F.2d at 1282-1284 (quotingindictments). Thus , given that " (t)he first and second indictments charge(d) thesame statutory violation, the same mailing in furtherance of the scheme , and thesame underlying transaction for the bribe " the Eleventh Circuit held that the firstindictment gave the defendant fair notice of the nature of the charges against himeven though the second indictment shifted its focus from a "good government"bribery scheme to a "money or property" bribery scheme. See id. at 1284-1286.By contrast, where the original indictment at issue here unquestionably did notcharge Mr. Bruno with any bribery scheme, a new indictment attempting to do sowould run afoul of the statute of limitations.

In the end, the validity of the government' s hypothetical new indictment issimply not before the Court at this time. While Mr. Bruno is convinced that thegovernment cannot retry him due to any number of legal barriers against re-prosecution, consideration of all but one such doctrine is properly left until afterthis appeal is resolved (if ever).2 If the Court agrees that Double Jeopardy bars anyretrial, as Mr. Bruno argues , then there will be no doubt that the government maynot seek a new indictment against him. If the Court instead rules against Mr.2 For this reason, Mr. Bruno disputes but does not respond to the government'characterizations of the doctrines of judicial estoppel and abandonment , neither ofwhich is at issue in this appeal.

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Bruno on the Double Jeopardy issue , then the district court will be able to considerwhether any new indictment is valid notwithstanding the other legal barriers tofurther prosecution, such as the statute of limitations. See Bruno Br. at 38-(explaining limited scope of appeal). But the government' s hope that it will beable to return a new, valid indictment in the future is no reason for this Court toavoid considering the validity of the original indictment-a question that has beenproperly raised in this appeal. This Court should follow its precedent , consider theindictment as it was actually drawn, and reject that indictment because it fails tocharge Mr. Bruno with any valid crime.II. THIS COURT MUST CONSIDER THE SUFFICIENCY OF

THE EVIDENCE AGAINST MR. BRUNO.As Mr. Bruno explained in his opening brief, under the Supreme Court'

decisions in Richardson v. United States 468 U. S. 317 (1984), and Burks v. UnitedStates 437 U.S. (1978), this Court should also consider whether thegovernment' s evidence at trial was sufficient to prove bribery charges underSkiling and, if not, then dismiss the charges against Mr. Bruno with prejudice. SeeBruno Br. at 40-44. In response, the government seeks to carve out a narrowexception to this general practice, arguing that courts should not review theevdence in cases where the governing law changes after trial. See Gov t Br. at 29-36. The government is mistaken. This Court should respect Mr. Bruno s FifthAmendment rights and review the evidence introduced at trial.

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The Government' s desire to retry Mr. Bruno implicates the heartland of theDouble Jeopardy Clause: the government wants a second trial " for the purpose ofaffording (it) another opportunity to supply evidence which it failed to muster inthe first proceeding. See Burks 437 U. S. at 11. Mr. Bruno is therefore entitled tothe opportunity to prove that he should have been acquitted below had this casebeen properly charged and presented to the jury and, therefore, that he cannotconstitutionally be retried in the future.

The government' s response that there has not yet been a "jeopardy-terminating event " Gov t Br. at 30 , is no response at all. Mr. Bruno asking thisCourt to enter such a jeopardy-terminating decision, because his Double Jeopardyargument is lost forever unless this Court takes such action. See Bruno Br. at 41-42 (explaining how, under Richardson and Burks Double Jeopardy rights can onlybe protected if courts of appeals conduct sufficiency reviews). For this reasoncourts of appeals have consistently recognized that, before vacating or reversing aconviction on the basis of some other defect, they must also review the sufficiencyof the evidence introduced at trial. See Bruno Br. at 42-43 (collecting cases).

The government acknowledges that this Court stated without qualificationthat such review is mandatory. See United States v. Wallach 979 F.2d 912 , 917 (2dCir. 1992) (" (A) reversal of a conviction on grounds other than sufficiency doesnot avoid the need to determine the sufficiency of the evidence before a retrial may

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occur(. see also United States v. Ford 435 F.3d 204 , 214 (2d Cir. 2006)(reviewing sufficiency of evidence under proper legal instruction , in case wherecourt of appeals held that district court failed to properly instruct the jury). But thegovernment then urges this Court to follow a handful of other circuits that have , forpolicy reasons, refused to apply this well-settled practice in cases where anintervening decision alters the law that governed the trial.

Tellingly, the government ignores the Fifth Circuit' s decision in UnitedStates v. Miler 952 F.2d 866 (5th Cir. 1992), a post-McNally decision thatsquarely addressed the same Double Jeopardy problem raised by this case.3 The

Miler defendants had been convicted of honest services fraud pre-McNally, buttheir convictions were reversed after the Supreme Court eliminated the doctrine ofhonest services fraud. Id. at 870-871. When the government attempted to retrythe defendants under charges of property-based mail fraud, the defendants arguedthat Double Jeopardy barred the new trial because "the evidence at the first trialwas insufficient to support a conviction on a valid mail fraud theory. Id. at 871.However, because the original appellate panel did not review the sufficiency of the

3 Although the government does discuss a differentUnited States v. Miler it is adecision from the Tenth Circuit that also supports Mr. Bruno s argument. SeeGov t Br. at 34 (citing United States v. Miler 84 F.3d 1244, 1258 (10th Cir.1996), overruled on other grounds , United States v. Holland 116 F.3d 1353 (10thCir. 1997) (courts should remand for new trial "only if the jury could have returneda guilty verdict if properly instructed"

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evidence after the first trial , the Miler Court was forced to hold that the defendantscould not maintain any Double Jeopardy argument. Id. at 871-873 (noting thatdefendants had raised their sufficiency challenge during the first appeal , but that ithad not been resolved). For that reason, the Fifth Circuit stressed that the bestcourse of action was for reviewing courts to always conduct such an inquiry. Id.

874 (" (I)t is accordingly clearly the better practice for the appellate court on aninitial appeal to dispose of any claim properly presented to it that the evidence attrial was legally insufficient to warrant the thus challenged conviction. ). TheMiler Court made no distinction for cases in which there was a change of law-indeed, the issue arose in Miller precisely because in McNally, the Supreme Courthad changed the law.

Nor is there any principled basis to draw such a distinction. The governmentinsists that it would be "unjust" to prevent retrials in cases where prosecutorsbelieved they had proceeded correctly based upon controlling law. Gov t Br. at 35.But regardless of whether the instructions given at trial are erroneous because of anintervening decision or because of simple mistake, the government always must bepresumed to have sought flawed instructions based upon its good-faith belief ofwhat the law required at the time of trial. As a result, this same "injustice" occursevery time a conviction is overturned due to flawed jury instructions-not onlywhen the appellate reversal is due to an intervening change in law. In other

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circumstances, this circuit and others unquestionably review the sufficiency of theevidence before resolving any appeal. See, e.g., Ford 435 F.3d at 214. This Courtshould therefore follow Miller and do the same in this case , regardless of thegovernment' s belief that its trial errors were attributable to Skiling. Such a rulebest respects the common situation that all defendants find themselves in after theyhave been subjected to full trials under incorrect legal theories.

Indeed, the government' s policy arguments are particularly weak in theinstant case. Nothing in Skiling changed the legal standards governing bribery orkickback cases. Rather, the government created its own problem here by pressingthe version of the case it considered easiest to prove , rather than pursuing briberycharges as an alternative theory. This is not a case where the government

diligently pursued a single theory of criminality only to have the Supreme Courtalter the relevant standards after the fact. Compare Bruno Br. at 37 (discussingmixed-theory cases that have survived Skillng). Rather, this is a case where thegovernment intentionally decided to not pursue bribery charges against Mr. Brunoregretting its tactical decision only after the Supreme Court invalidated the theorythe government chose to pursue.

The Court should not permit the government to try its cases II such apiecemeal fashion. The government already had "one fair opportunity to offerwhatever proof it could assemble see Burks 437 U. S. at 16 , and it made the

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calculated decision to not present a bribery case. As a result, if the government'evidence at trial was not sufficient to prove a bribery-theory honest services casethen this Court must dismiss the government' s case with prejudice.III. THE GOVERNMENT' EVIDENCE AT TRIAL WASINSUFFICIENT TO PROVE MR. BRUNO GUILTY OF ANYVALID BRIBERY CHARGES.

The hallmark of bribery or kickback case is that government must prove theexistence of a quid pro quo-the corrupt agreement to exchange political favor forpersonal gain. See, e. g., United States v. Ganim 510 F.3d 134 , 141 (2d Cir. 2007).Although the government is correct that, under the law of this circuit, the

government need not tie any specific payment to a specific official act, thegovernment still must prove a specific intent-Mr. Bruno s corrupt agreement toexercise "particular kinds of influence or decision making to the benefit of thepayor" in exchange for payment. Id. at 149.

During the trial below, the government never sought to prove the existenceof such a quid pro quo agreement with respect to the charges at issue on appeal. 4

4 Although the government points to scattered discussions in the record regardingquid pro quo in context it is clear that those comments referred to thegovernment' s case under the counts relating to Mr. Bruno s dealings with variousunions while employed by Wright Investors ' Services and McGinn , Smith & Co.Inc. counts for which the jury acquitted Mr. Bruno. See Bruno Br. at 14-(explaining difference between union counts and private business counts); GA37-38 (district court statements regarding quid pro quo made in context of unioncounts ).

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Instead, the government now claims that it inadvertently presented enoughcircumstance evidence that, by piling inference upon inference, a jury couldnevertheless have found Mr. Bruno guilty of bribery. But even when the evidenceis viewed in the light most favorable to the government, it cannot support suchtenuous claims.

Mr. Bruno Did Not Solicit Or Accept Bribes From Mr.Fassler (Count 3).With respect to Count 3, the government argues that Mr. Bruno

professional relationship with various companies associated with Mr. Fassler wasimproper. See Gov t Br. at 20-22. But the government cannot transform its vagueconcerns regarding Mr. Bruno s disclosure of these relationships into a crediblebribery case. Indeed, given that the jury could not even agree that this conductviolated the now-aborted nondisclosure theory of honest services fraud, it isunthinkable that a jury would have convicted Mr. Bruno of the stricter crime ofbribery based upon the same evidence. Instead, review of the three situationsdescribed by the government confirms that Mr. Bruno never agreed to exchangeany political favor on Mr. Fassler s behalf in exchange for monetary gain-conclusion confirmed by the fact that Mr. Bruno took no relevant actions on Mr.Fassler s behalf.

First, the government insinuates that Mr. Bruno had some hand in theFebruary 2003 , decision to award Aviation Learning, Inc. a $250 000 equity

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investment. See Gov t Br. at 21 (citing GAI95). But, as the government' s ownevidence establishes , that grant was awarded by the Empire State DevelopmentBoard of Directors through its Small Business Technology Investment Fund. SeeGA195. Uncontradicted evidence at trial-the testimony of Empire State s formersenior manager, David Catalfamo-established that the Board conducted its ownindependent review of potential investments based upon objective criteria, thatmembers of the Legislature such as Mr. Bruno had no role in any decisions madeby the Fund, and that Mr. Bruno never contacted the Fund regarding AviationLearning. RA000051-056. Furthermore, as the government acknowledgesAviation Learning turned down the investment. Gov t Br. at 21 (citing GAI56);see also RA000057-060. Indeed, the founder and CEO of Aviation Learning, JohnMarszalek , took the stand at trial and explained that: (1) he never took any moneyfrom New York State , RA000059; (2) he did not know Mr. Fassler or Fasslercompany, Interliant, and neither invested in his company, RA000057-058; and(3) he never met or had any conversations with Mr. Bruno about receiving moneyfrom New York State , RA000058. Mr. Fassler likewise confirmed that he neverhad any interest in Aviation learning and never discussed it with Mr. Bruno.RA000007-008. As a result, there is no basis for a jury to hold that Mr. Bruno

5 Citations to "RA#" refer to pages in the supplemental Reply Appendix filedalongside this brief.- 19 -



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agreed or offered to exercise power he did not possess over an equity investmentthat Aviation Learning never accepted.

Second, the government notes that a second company associated with Mr.Fassler, Convergence Technologies, received an investment from the statecommon retirement fund in February 2005. Gov t Br. at 21 (citing GA27-197-198). But the government does not appear to make any accusations ofimpropriety regarding this investment. Rather, the government admits that Mr.Fassler never paid Mr. Bruno any consulting fees in connection with Convergence.Gov t Br. at 21-22 (citing GA29). The record also shows that the investment atissue was made by the New York Common Retirement Fund with the help of acompany named Founder s Equity-not Mr. Bruno. See GA 197- 198; see alsoRA000008-011 (confirming that legislature had nothing to do with FounderEquity decision to invest in Convergence).

Finally, the government points to Mr. Bruno s service as a consultant forVyTek Wireless, a company in which Mr. Fassler owned less than a 5% interest.RA000006. The government notes that, in April 2002 , Mr. Bruno met with "team, including Vytek, that was bidding on a $2 billion statewide wireless project."Gov t Br. at 21. However, it is uncontroverted that the contract was awarded toanother bidder see id. and the government acknowledged below that Mr. Bruno

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did not "do anything" relating to helping VyTek bid on the contract. RA000069-070.

To establish quid pro quo the government would have to have prove thatMr. Bruno solicited or received consulting fees from the so-called Fasslercompanies in exchange for a corrupt promise to exercise his official power on theirbehalf. See, e.g., Ganim 510 F.3d at 141. But all the government offered belowwas proof that Mr. Bruno took no actions on behalf of the Fassler companies , nordid the Fassler companies reap any rewards due to their employment of Mr. Bruno.This paltry record provides no basis that could lead a reasonable jury to concludethat, even though Mr. Bruno never provided any improper benefit to the Fasslercompanies, he nevertheless formed a corrupt agreement to do so. The evidencebelow was not enough for the jury to convict on the easier-to-prove nondisclosuretheory. Even when interpreted favorably to the government, the evidence wasclearly not enough to prove a quid pro quo agreement. F or this reason, thegovernment cannot constitutionally retry Mr. Bruno under Count 3.

Mr. Bruno Did Not Solicit Or Accept Bribes From Mr.Abbruzzese (Counts 4 & 8).

With respect to Mr. Bruno s professional relationships with Mr. Abbruzzesethe government' s entire quid pro quo case is based upon coincidences of timing.Because the state government finally fulfilled part of its longstandingcommitments to Evident Technologies shortly after Mr. Bruno and Mr.

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Abbruzzese discussed forming a consulting relationship, the government suggeststhat a jury could find that Mr. Bruno solicited money from Mr. Abbruzzese inexchange for that government payment. But when that argument is considered inthe context of all the evidence introduced at trial-including the rest of theevidence the government solicited from its own witnesses-then it becomes clearthat no reasonable jury could have convicted Mr. Bruno of bribery based upon theevidence the government presented at trial.

The government points to two general premises that it claims could lead ajury to conclude that Mr. Bruno solicited or accepted bribes: (1) Mr. Brunoreceived consulting fees from some of the Abbruzzese companies and sold hisshare of a horse to Mr. Abbruzzese, and (2) Evident received some grant moneyfrom the New York state government. But even though the government castsaspersions on both these facts , neither supports the government' s newfound briberyaccusations.

First, with respect to the payments Mr. Bruno received, the governmentcontends that there was "overwhelming" evidence that "neither the ' consultingnor the ' horse ' payments were legitimate." Gov t Br. at 44-46. Yet the evidencedoes not actually support the government' s characterization. It is undisputed theNew York State Legislature, like many state governmental bodies nationwide, is apart-time" legislature, and that its members are both permitted and often

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encouraged to hold outside jobs. It is also undisputed that Mr. Bruno had anextensive personal background in business issues, particularly relating to thetelecom industry, given his prior experience as one of the first people to build asuccessful franchise in the telephone equipment arena. RA000032-034(discussing background); RA000016 (same); RAOOOOOI-005 (same). For thesereasons, Mr. Abbruzzese testified that he hired Mr. Bruno as a consultant basedupon his belief Mr. Bruno s business acumen and historic successes allowed him toadd value to the entities that hired him. RA000032-034. As such, although thegovernment would like to pretend that Mr. Bruno s consulting work was worthlessthose who received it consistently stated that they believed Mr. Bruno providedreal value as a business advisor. Likewise , while the government is happy to focuson the ultimate disposition of Christie s Night Out, the horse that Mr. Abbruzzesebought a portion of from Mr. Bruno , the government ignores the uncontradictedevidence that Mr. Abbruzzese invested a fair amount of time and money into thathorse before ultimately giving it away, and that the horse also had sentimentalvalue to his wife , who had named it after her best friend. RA000041-043. As aresult, even when viewing the evidence favorably to the government , the entiretyof the evidence below cannot reasonably support the conclusion that any paymentsmade to Mr. Bruno were not supported by legitimate business motivations.

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Second, the government attempts to draw inferential connections betweenMr. Bruno and various payments that Evident received over the years from theNew York government or other alleged "favorable treatment of Abbruzzeseinterests." Gov t Br. at 40-43. But once again, the uncontradicted evidence showsthat Mr. Bruno did not steer any government funds to Evident or otherwise abusehis position. The government focuses primarily on a grant of $250 000 that waspaid to Evident in February 2004 , which the government claims that Mr. Brunocontrolled. See Gov t Br. at 6, 41. But the evidence does not support thegovernment' s view.

On a general level, it is undisputed that the $250 000 payment was made inpartial fulfillment of a $1.5 million commitment that Governor Pataki made toEvident in 2002-long before there was any business relationship between Mr.Bruno and Mr. Abbruzzese. See, e. RA000044-049 (discussing GovernorPataki' s role in awarding original commitment to Evident); RA000020 (moneycommitted to evidence in 2002); RA000061 , 062-063 (testimony of Evident CEOconfirming same). This money was promised as part of a larger governmentaldrive towards investing in nanotechnology development within the state , and assuch was awarded through an objective process that in no way involved either Mr.Bruno or the legislature in general. See RA000054-055 (testimony of seniormanager of Empire State Development, which awarded the grant to Evident in

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2002). As a result, there is no basis upon which to tie the government' s generalinvestment in Evident to Mr. Bruno.

The government nevertheless focuses its accusations on the timing of a sub-payment of that commitment, made shortly after Mr. Bruno and Mr. Abbruzzesebegan discussions about employing Mr. Bruno as a consultant. Gov t Br. at 6 , 41.But it is undisputed that Mr. Bruno exercised no personal influence over thedecision to facilitate that payment. Rather, the evidence establishes thatthroughout the end of 2003 and early 2004, Evident was complaining to Mr. Brunoand others that the government had delayed its promised payments under the 2002grant, but Mr. Bruno was paying little attention to the issue. See, e. Gov t Br. at40-41 (discussing Mr. Bruno s lack of involvement or interest in the Evidentmatter). In response, Mr. Bruno ultimately delegated the issue to Mary LouiseMallick, a Secretary to the Senate Finance Committee with personal experience ininvestigating nanotechnology companies. See RA000021-023; RA000029. Mr.Bruno asked Ms. Mallick to conduct a diligent independent analysis of whether tofacilitate payment to Evident. See RA000024; RA000064. Once Ms. Mallickcompleted her review and recommended approving the request, Mr. Brunodeferred to her recommendation, and she authorized the $250 000 payment toEvident based upon her independent determination that such a payment waswarranted. RA000025-026 027-028.

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Beyond that, the government points to a scattered array of other minordecisions that Mr. Bruno allegedly had involvement in, but these are too detachedremote , or random to support any charge of bribery. The government complainsthat Mr. Bruno recommended Mr. Barr for a seat on the board of the New YorkRacing Association ("NYR") in 2004 , because Mr. Abbruzzese would later showan interest in bidding on the NYRA franchise operation. Gov t Br. at 41-42. ButMr. Barr testified that he resigned from the NYRA board once Mr. Abbruzzesedetermined that he was going to bid on the franchise, in order to specifically avoidany potential conflict of interest. RAOOOOI3-014. In any event, the franchisecontract was to be awarded through an open RFP process over which Mr. Brunohad no control, and ultimately the contract was not awarded to Mr. Abbruzzeseinterested entity nor anyone else. RAOOOO 15. Likewise , the government attemptsto link the horse transaction to what it describes as "a $2.5 million grant benefittingEvident" in 2005 , Gov t Br. at 43 6 but the uncontradicted evidence establishes thatthis was an independently-vetted grant was made to the Russell Sage College-Evident "benefitted" only to the extent that Evident and other tenants were going tolease office space from the College , and Evident was not the recipient of this

6 This argument is radically different from the government' s theory at trial , whereit instead linked the horse transaction to Mr. Bruno s allegedly-improperrelationship with TerreStar. See RA000071-072 (discussing horse payment). Thejury acquitted Mr. Bruno of the Count involving TerreStar.

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money. RA000030; see also RA000065-68 (testimony of then-president of SageColleges explaining history for grant and Mr. Abbruzzese s lack of involvement).These scattered events cannot be strung together to become the quo of a bribery

charge.At trial, the government did not present any direct evidence of any

relationship between Mr. Bruno s consulting employment and Evident. Insteadevery witness who testified on the subject concurred that Mr. Bruno s employmentas a consultant had nothing to do with his professional decisionmaking, and thatEvident' s receipt of government money was based on independent determinationsby persons other than Mr. Bruno. For example, Mr. Abbruzzese consistentlytestified that Mr. Bruno had no relationship with Evident, than none of his businessdealings with Mr. Bruno were intended to influence his professionaldecisionmaking, and that there was simply no connection between Mr. Brunowork as a consultant and Evident. See RA000035-036; RA000039-040;RA000050. Mr. Barr concurred that Mr. Bruno did not work for Evident and thatthere was no connection between Mr. Bruno s consulting agreements and the stategrants to Evident. RAOOOOI7; RAOOOOI8-019. Moreover, Mr. Bruno s ethicscounsel oversaw the drafting of the consulting agreements, further support for thefact that the parties had no illicit intent. See, e. RA000037; RA000038-039.Indeed, the jury that deliberated over the counts of the indictment relating to Mr.

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Abbruzzese actually acquitted Mr. Bruno on two of those counts , relating to amuch lesser charge of nondisclosure of a conflict of interest.

The government, of course , stresses that the evidence must be viewed in thelight most favorable to it, but even favorable inferences have their limits. Messrs.Abbruzzese and Barr testified at trial subject to grants of full immunity from thegovernment, guaranteeing that they would not be punished if they implicated Mr.Bruno in any wrongdoing. RAOOOOI2; RA000031. As a result, they had noreason to lie about their arrangements with Mr. Bruno and would, in fact, besubject to perjury charges if they had done so. Yet if their testimony is creditedthen the government' s bribery case falls apart, because they are crystal clear thatMr. Bruno never solicited nor received any bribes, nor did he ever offer to exercisehis political power on Evident' s behalf in exchange for personal gain. Thegovernment' s entire case therefore presumes that its own immunized witnesseswere lying through their teeth-a proposition no reasonable jury would accept.

In the end, there is a reason that the government never charged Mr. Brunowith bribery in 2009 , when it had the chance-it knew that such a case wasdestined for failure. Although the government has cobbled a handful of factstogether into what it considers a bribery case , no reasonable jury who heard theentirety of the evidence below would convict Mr. Bruno of bribery. For thatreason, the evidence at trial was insufficient to convict Mr. Bruno under any

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constitutionally-valid theory of honest services fraud, and so the government' s caseagainst him must be dismissed with prejudice.

CONCLUSIONF or the reasons set forth above and in the opening brief, this Court should

(1) vacate Mr. Bruno s conviction and sentence , (2) dismiss all charges againsthim, and (3) bar the government from retrying Mr. Bruno under a bribery-or-kickback theory.

DATED: April 7 , 2011 Respectfully submitted

William J. DreyerDREYER BOYAJIAN LLP75 Columbia StreetAlbany, NY 12210(518) 463-7784

Abbe David LowellPaul M. ThompsonJeffrey W. MikoniMcDERMOTT WILL & EMERY LLP600 Thirteenth St. , N.Washington, D.C. 20005-3096(202) 756-8000

Attorneys for Defendant-Appellant Joseph L. Bruno

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CERTIFICATE OF COMPLIANCECounsel hereby certifies that, pursuant to Fed. R. App. P. 32(a)(7)(C), the

attached Reply Brief of Defendant-Appellant Joseph L. Bruno is proportionatelyspaced, has a typeface of 12 points or larger, and contains 6 975 words , excludingthose portions of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). Counselrelies upon the word count provided by their word-processing software in makingthis certification.

Jeffrey W. Mikoni


bruno march 7 response

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