show temp.pl

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA,

- v. - MALCOLM A. SMITH, DANIEL J. HALLORAN, VINCENT TABONE, JOSEPH J. SAVINO, NORAMIE JASMIN, JOSEPH DESMARET,

Defendants.

Case No. 7:13-CR-00297-KMK-2

DANIEL J. HALLORAN’S MEMORANDUM OF LAW

IN SUPPORT OF HIS MOTION TO DISMISS PORTIONS OF THE INDICTMENT FOR FAILURE TO STATE AN OFFENSE

Vinoo P. Varghese John G. Mateus VARGHESE & ASSOCIATES, P.C. 65 Broadway, 7th Floor New York, New York 10006 (212) 430-6469 Attorneys for Daniel J. Halloran

Case 7:13-cr-00297-KMK Document 81 Filed 08/06/13 of 30

i

TABLE OF CONTENTS TABLE OF AUTHORITIES ......................................................................................................... iii

STANDARD OF LAW FOR A MOTION TO DISMISS ...............................................................1

PRELIMINARY STATEMENT .....................................................................................................2

ARGUMENT ...................................................................................................................................3

I. WHETHER MR. HALLORAN ENGAGED IN BRIBERY IS PURELY A QUESTION OF STATE LAW ........................................................................................... 3

A. Count One Requires A Violation Of Penal Law §§ 200.45 And 200.50 ................ 3

B. Count Three Requires A Violation Of Penal Law §§ 200.45 And 200.50 ............. 4

II. NO DEFENDANT VIOLATED PENAL LAW §§ 200.45 AND 200.50, THUS, THE COURT SHOULD DISMISS ALL CHARGES BASED ON SUCH ALLEGATIONS ................................................................................................................. 4

A. A Wilson Pakula Certificate Is Not An Object Or Subject Of Bribery Within The Bribery Statutes ................................................................................... 5

1. The Bribery Statutes and the Wilson Pakula Statute Must Be Read Together Because the Election Law Distinguishes a Wilson Pakula Certificate From a Designation or Nomination, and the Penal Law Does Not Criminalize a Payment For a Wilson Pakula Certificate ............ 5

2. New York State Legislators Chose to Distinguish a Wilson Pakula Certificate From a Designation, Nomination, or Appointment to a Public Office ............................................................................................... 7

B. The Government Has Never Successfully Used Penal Law §§ 200.45 Or 200.50 As A Basis For Jurisdiction, And There Is Only One Reported Decision Of A New York State Prosecution Under These Bribery Statutes .......... 8

C. As Described On The Face Of The Indictment, The Defendants Had Only One Goal: To Help Mr. Smith Obtain A Wilson Pakula Certificate -- Such Actions, However, Do Not Amount to Bribery ...................................................... 9

D. A Wilson Pakula Certificate Is Neither A Designation Nor Nomination Under Penal Law §§ 200.45 And 200.50 .............................................................. 11

1. The Very Language of the Wilson Pakula Statute Indicates That the Wilson Pakula Certificate is Not the Same as a Designation or Nomination ............................................................................................... 12

2. The Election Law Sets Apart a Designation or Nomination From a Wilson Pakula Certificate ......................................................................... 12

3. A Wilson Pakula Cannot be Confused or Conflated With a Nomination or Designation in the Bribery Statutes Because the


ii

Penal Law Requires Courts to Construe Statutes According to the Fair Import of Their Terms in Order to Promote Justice .......................... 13

4. Only Conduct Falling Within the Plain, Natural Meaning of the Language of a Penal Law Provision May be Punished as Criminal ......... 14

5. The Penal Law Requires Those Charged to be Given Fair Warning of the Nature of the Illegal Conduct, Thus Holding the Defendants Accountable for Non-Criminal Conduct, Specifically, Payments in Exchange for a Wilson Pakula, Would Violate the Penal Law ................ 14

6. New York State Case Law Distinguishes a Wilson Pakula Certificate From a Designation or Nomination ........................................ 16

E. A Wilson Pakula Certificate Is Not A Promise That A Person May Or Will Be “Appointed To A Public Office” Under Penal Law §§ 200.45 And 200.50.................................................................................................................... 18

F. Summary ............................................................................................................... 21

III. MR. HALLORAN DID NOT ENGAGE IN ANY ACTIVITY THAT VIOLATED THE BRIBERY STATUTES, SO ALL CHARGES IN COUNT THREE SHOULD BE DISMISSED AS A MATTER OF LAW..................................... 21

A. In Order For The Government To Allege A Travel Act Violation, Mr. Halloran Must Have Violated The Bribery Statutes ............................................. 22

B. Mr. Halloran Did Not Receive A Bribe Under Penal Law § 200.50 .................... 23

C. Mr. Halloran Did Not Give A Bribe Under Penal Law § 200.45 ......................... 24

D. Summary ............................................................................................................... 24

CONCLUSION ..............................................................................................................................25


iii

TABLE OF AUTHORITIES

Cases

Alamo v. Strohm, 74 N.Y.2d 801 (N.Y. 1989) ............................................................................. 18 Bliss v. Nobles, 297 A.D.2d 457 (N.Y. App. Div. 3d Dep’t 2002) .............................................. 19 Costello v. United States, 350 U.S. 359 (1956) .............................................................................. 1 Denn v. Mahoney, 64 A.D. 2d 1007 (N.Y. App. Div. 4th Dep’t 1978) ....................................... 19 Hamling v. United States, 418 U.S. 87 (1974) ............................................................................... 1 Hayes v. New York State Bd. of Elections, 32 A.D.3d 660 (N.Y. App. Div. 3d Dep’t 2006) ..... 19 Ingersoll v. Curran, 188 Misc. 1003 (N.Y. Sup. Ct. Albany Cty. 1947) ........................................ 7 Master v. Pohanka, 10 N.Y.3d 620 (N.Y. 2008) .......................................................................... 17 Matter of Cesar P., 230 A.D.2d 61 (N.Y. App. Div. 2d Dep’t 1997) ........................................... 14 People v. Burke, 82 Misc. 2d 1005 (NY Sup. Ct. New York Cty. 1975) ............................... 19, 20 People v. Cunningham, 88 Misc. 2d 1065 (N.Y.Sup. Ct. Bronx Cty. 1976) .................................. 8 People v. Ditta, 52 N.Y.2d 657 (N.Y. 1981) ................................................................................ 14 People v. Fitzgerald, 156 N.Y. 253 (N.Y. 1898) .......................................................................... 13 People v. Gardner, 163 A.D.2d 892 (N.Y. App. Div. 4th Dep’t 1990) ........................................ 13 People v. Gottlieb, 36 N.Y.2d 629 (N.Y. 1975) ..................................................................... 14, 15 People v. Sansanese, 17 N.Y.2d 302 (N.Y. 1966) .................................................................. 14, 15 People v. Shapiro, 308 N.Y. 453 (N.Y. 1955) .............................................................................. 13 People v. Singh, 36 Misc. 3d 910 (N.Y. Sup. Ct. Kings Cty. 2012) ...................................... 14, 15 People v. Versaggi, 83 N.Y.2d 123 (N.Y. 1994) .................................................................... 14, 15 People v. Wood, 8 N.Y.2d 48 (N.Y. 1960) ................................................................................... 15 Plunkett v. Mahoney, 76 N.Y.2d 848 (N.Y. 1990) ....................................................................... 16 Potanovic v. French, 65 A.D.3d 650 (N.Y. App. Div. 2d Dep’t 2009) ........................................ 16 Sanabria v. United States, 437 U.S. 54 (1978) ............................................................................... 1 United States v. Alfonso, 143 F.3d 772 (2d Cir. 1998) .................................................................. 1 United States v. Brooks, 2009 WL 3644122 (E.D.N.Y. 2009)....................................................... 1 United States v. Kozeny, 493 F. Supp. 2d 693 (S.D.N.Y. 2007) .................................................. 22 United States v. Margiotta, 688 F.2d 108 (2d Cir. 1982) ............................................................... 8 United States v. Pirro, 212 F.3d 86 (2d Cir. 2000) ......................................................................... 1 United States v. Post, 2013 WL 2934229 (S.D.N.Y. 2013) ........................................................... 1 United States v. Salameh, 152 F.3d 88 (2d Cir. 1998) ................................................................. 22 United States v. Saliba, 2010 WL 680986 (E.D.N.Y. 2010) .......................................................... 1 United States v. Svoboda, 347 F.3d 471 (2d Cir. 2003) ............................................................... 22 United States v. Velastegui, 199 F.3d 590 (2d Cir. 1999) .............................................................. 1 United States v. Villanueva Madrid, 302 F. Supp. 2d 187 (S.D.N.Y. 2003) .................................. 1 Werbel v. Gernstein, 191 Misc. 275 (N.Y. Sup. Ct. Kings Cty. 1948) ........................................ 17


iv

Statutes

18 U.S.C. § 1952 ................................................................................................................... 3, 4, 22 18 U.S.C. § 371 ............................................................................................................................... 3 Fed. R. Crim. P. 12 ............................................................................................................... 2, 3, 25 Fed. R. Crim. P. 7 ........................................................................................................................... 1 N.Y. Elec. Law § 1-104 ................................................................................................................ 18 N.Y. Elec. Law § 6-100 ................................................................................................................ 18 N.Y. Elec. Law § 6-120 ................................................................................................ 7, 12, 13, 17 N.Y. Elec. Law § 6-136 .......................................................................................................... 11, 13 N.Y. Gen. Mun. Law § 120 .......................................................................................................... 18 N.Y. Penal Law § 1.05 ...................................................................................................... 14, 19, 20 N.Y. Penal Law § 200.45 ....................................................................................................... passim N.Y. Penal Law § 200.50 ....................................................................................................... passim N.Y. Penal Law § 5.00 ............................................................................................................ 13, 19 N.Y. Rural Elec. Coop. Law § 21 ................................................................................................. 18


1

STANDARD OF LAW FOR A MOTION TO DISMISS

Federal Rule of Criminal Procedure 12(b)(3)(B) governs a motion to dismiss a defective

indictment. It provides that “at any time while the case is pending, the court may hear a claim

that the indictment . . . fails to invoke the court’s jurisdiction or to state an offense.” Fed. R.

Crim. P. 12(b)(3)(B).

“A defendant faces a ‘high standard’ in seeking to dismiss an indictment.” United States

v. Post, 2013 WL 2934229, at *5 (S.D.N.Y. 2013); see also United States v. Saliba, 2010 WL

680986, at *2 (E.D.N.Y. 2010); United States v. Brooks, 2009 WL 3644122, at *2 (E.D.N.Y.

2009). The standard is high because an indictment need only provide the defendant “a plain,

concise, and definite written statement of the essential facts constituting the offense charged.”

Fed. R. Crim. P. 7(c)(1). An indictment is sufficient if it “contains the elements of the offense

charged and fairly informs a defendant of the charge against which he must defend, and . . .

enables him to plead an acquittal or conviction in bar of future prosecutions for the same

offense.” Hamling v. United States, 418 U.S. 87, 117 (1974); see also United States v. Alfonso,

143 F.3d 772, 776 (2d Cir. 1998) (same); Post, supra, 2013 WL 2934229, at *5 (citing Hamling

and Alfonso).

An indictment, however, must at least be valid on its face in order to survive a motion to

dismiss. Costello v. United States, 350 U.S. 359, 363 (1956); Alfonso, supra, 143 F.3d at 776;

United States v. Villanueva Madrid, 302 F. Supp. 2d 187, 192 (S.D.N.Y. 2003). A court must

only consider the four corners of the indictment as drawn, and not how an indictment might have

been drawn. Sanabria v. United States, 437 U.S. 54, 65-66 (1978); United States v. Pirro, 212

F.3d 86, 92 (2d Cir. 2000). The sufficiency of an indictment is a matter of law. United States v.

Velastegui, 199 F.3d 590, 593 (2d Cir. 1999).


2

PRELIMINARY STATEMENT

The federal government has never before attempted to base jurisdiction for either

conspiracy or Travel Act charges on New York Penal Law Sections 200.45 and 200.50 (bribery

statutes). New York State lawmakers, however, excluded from the bribery statutes the acts that

the federal government seeks to criminalize here -- attempts to secure a certificate of

authorization under Article Six of New York’s Election Law. Article Six governs how political

parties may designate and nominate candidates for public office. In New York, a political party

designates or nominates a candidate through a designating petition. There are several

requirements under Article Six for such a designating petition; for example, a designating

petition for Mayor of New York City requires at least 7,500 signatures.

Generally, a political party may only designate or nominate members enrolled in that

party. Nevertheless, a nonparty member may receive permission from the party to seek its

designation or nomination. Political parties grant such permission in the form of a certificate of

authorization. This certificate of authorization is a “Wilson Pakula certificate.”

A Wilson Pakula certificate, however, is not a designation, nomination, or an

appointment to a public office. A Wilson Pakula certificate is merely permission for a nonparty

member to seek a designation or nomination by filing a designating petition. A Wilson Pakula

thus functions as a gateway to, but is not the equivalent of, a designation or nomination. A

Wilson Pakula certificate is thus one-step removed from and is not the same as the conduct

prohibited by the bribery statutes. Consequently, Mr. Daniel J. Halloran respectfully moves

under Federal Rule of Criminal Procedure 12 (b)(3)(B) to dismiss portions of the indictment for

failure to state an offense, namely the section of Count One that relies on the bribery statutes,

and Count Three in its entirety.


3

ARGUMENT

As drawn, Counts One and Three of the indictment are facially insufficient to support

those violations of Penal Law §§ 200.45 and 200.50 (bribery statutes) charged against Mr.

Halloran. Therefore, Mr. Halloran respectfully moves under Federal Rule of Criminal Procedure

12 (b)(3)(B) to dismiss portions of the indictment for failure to state an offense, namely the

section of Count One that relies on the bribery statutes, and Count Three in its entirety.

I. WHETHER MR. HALLORAN ENGAGED IN BRIBERY IS PURELY A QUESTION OF STATE LAW

The issues involved in this particular motion to dismiss are solely rooted in state law. To

be sure, both Count One and Count Three are charges under federal law. In Count One, the

government alleges a conspiracy, 18 U.S.C. § 371; in Count Three they allege a Travel Act

violation, 18 U.S.C. § 1952. Both of these counts, however, depend on state law violations for

jurisdiction. Specifically, a section of Count One requires a violation of the bribery statutes. On

the other hand, Count Three, in its entirety, requires a violation of the bribery statutes. Per the

four corners of the indictment, the government fails to allege any violation of Penal Law

§§ 200.45 and 200.50. As a result, the Court should dismiss Count Three in its entirety, and that

portion of Count One referring to these specific bribery statutes.

A. Count One Requires A Violation Of Penal Law §§ 200.45 And 200.50 Count One alleges that Mr. Halloran, along with others, “willfully and knowingly did

combine, conspire, confederate and agree together and with each other to commit offenses

against the United States, to wit, wire fraud and bribery.” Indictment, ¶ 58. The alleged

conspiracy had two wrongful objects: (1) honest services fraud; and (2) violations of Penal Law

§§ 200.45 and 200.50. Id. at ¶¶ 59-60. Mr. Halloran does not herein contest the honest services

fraud basis for the conspiracy, though he reserves the right to do so later. Nevertheless, Mr.


4

Halloran does herein challenge the conspiracy charge of Count One insofar as it is based upon

violations of Penal Law §§ 200.45 and 200.50.

B. Count Three Requires A Violation Of Penal Law §§ 200.45 And 200.50 Count Three, meanwhile, alleges a violation of the Travel Act. Indictment, ¶¶ 64-65.

The Travel Act charge, however, requires the presence of an underlying state law violation. See

18 U.S.C. § 1952 (a) (2-3); Indictment, ¶ 65. The government’s Travel Act charge against Mr.

Halloran specifically claims that he violated Penal Law §§ 200.45 and 200.50. Indictment, ¶ 65.

Mr. Halloran challenges the state law basis for both of those counts. It is a challenge to

the facial sufficiency of the indictment as a matter of law. Mr. Halloran does not challenge any

federal counts as to their own merit at this time, nor does he challenge the factual allegations

underlying the counts, though he reserves the right to do both later.

II. NO DEFENDANT VIOLATED PENAL LAW §§ 200.45 AND 200.50, THUS, THE COURT SHOULD DISMISS ALL CHARGES BASED ON SUCH ALLEGATIONS

A Wilson Pakula certificate is not an object or subject of bribery within the bribery

statutes. Moreover, the government has never successfully used Penal Law §§ 200.45 or 200.50

as a basis for jurisdiction, and there is only one reported decision of a New York State

prosecution under these bribery statutes. As described on the face of the indictment, the

defendants had only one goal: to help Mr. Smith obtain a Wilson Pakula certificate; such actions,

however, do not amount to bribery. A Wilson Pakula certificate is neither a designation nor a

nomination under Penal Law §§ 200.45 and 200.50. Finally, a Wilson Pakula certificate is not a

promise that a person may or will be “appointed to a public office” under Penal Law §§ 200.45

and 200.50. Therefore, the charges in Count One based on Penal Law §§ 200.45 and 200.50

should be dismissed, as should all of Count Three.


5

A. A Wilson Pakula Certificate Is Not An Object Or Subject Of Bribery Within The Bribery Statutes

The bribery statutes and the Wilson Pakula statute must be read together because the

Election Law distinguishes a Wilson Pakula certificate from a designation or nomination, and the

Penal Law does not criminalize a payment for a Wilson Pakula certificate. Moreover, New York

State legislators chose to distinguish a Wilson Pakula certificate from a designation, nomination,

or appointment to a public office.

1. The Bribery Statutes and the Wilson Pakula Statute Must Be Read Together Because the Election Law Distinguishes a Wilson Pakula Certificate From a Designation or Nomination, and the Penal Law Does Not Criminalize a Payment For a Wilson Pakula Certificate

New York’s bribery laws proscribe a broad spectrum of offenses. Although the spectrum

is broad, each individual offense has a narrowly defined offense conduct. Indeed, Penal Law

Articles 180 (commercial bribery) and 200 (bribery of public officials) contain 30 different

bribery offenses, each with specifically defined offense conduct.1 For example, Penal Law

§ 200.55, entitled “Impairing the integrity of a government licensing examination,” proscribes

altering an applicant’s grade on a government licensing examination, or providing the applicant

with examination answers, or the examination itself. Penal Law § 180.51, entitled “Tampering

with a sports contest in the first degree,” proscribes certain activity relating to horse races,

1See Penal Law § 180.00 Commercial bribing 2nd degree; Penal Law § 180.03 Commercial bribing 1st degree; Penal Law § 180.05 Commercial bribe receiving; Penal Law § 180.08 Commercial bribe receiving 1st degree; Penal Law §180.15 Bribing a labor official; Penal Law § 180.25 Bribe receiving by a labor official; Penal Law § 180.40 Sports bribing; Penal Law § 180.45 Sports bribe receiving; Penal Law § 180.50 Tampering with a sports contest 2nd degree; Penal Law § 180.51 Tampering with a sports contest 1st degree; Penal Law § 180.52 Impairing the integrity of a pari-mutuel betting system 2nd degree; Penal Law § 180.53 Impairing the integrity of a pari-mutuel betting system 1st degree; Penal Law § 180.55 Rent gouging 3rd degree; Penal Law § 180.56 Rent gouging 2nd degree; Penal Law § 180.57 Rent gouging 1st degree; Penal Law § 200.00 Bribery 3rd degree; Penal Law § 200.03 Bribery 2nd degree; Penal Law § 200.04 Bribery 1st degree; Penal Law § 200.10 Bribe receiving 3rd degree; Penal Law § 200.11 Bribe receiving 2nd degree; Penal Law § 200.12 Bribe receiving 1st degree; Penal Law § 200.20 Rewarding official misconduct 2nd degree; Penal Law § 200.22 Rewarding official misconduct 1st degree; Penal Law § 200.25 Receiving reward for official misconduct 2nd degree; Penal Law § 200.27 Receiving reward for official misconduct 1st degree; Penal Law § 200.30 Giving unlawful gratuities; Penal Law § 200.35 Receiving unlawful gratuities; Penal Law § 200.45 Bribe giving for public office; Penal Law § 200.50 Bribe receiving for public office; Penal Law § 200.55 Impairing the integrity of a government licensing examination.


6

including administering a controlled substance to a race horse and registering a race horse under

an alias or assumed name. It is with this specificity in mind that we turn to the bribery statutes at

issue here.

There are three state statutes at issue here: (1) Penal Law § 200.45; (2) Penal Law

§ 200.50; and (3) New York Election Law § 6-120 (3), the Wilson Pakula statute. Under Penal

Law § 200.45:

A person is guilty of bribe giving for public office when he confers, or offers or agrees to confer, any money or other property upon a public servant or a party officer upon an agreement or understanding that some person will or may be appointed to a public office or designated or nominated as a candidate for public office.

(Emphasis added). Under Penal Law § 200.50:

A public servant or a party officer is guilty of bribe receiving for public office when he solicits, accepts or agrees to accept any money or other property from another person upon an agreement or understanding that some person will or may be appointed to a public office or designated or nominated as a candidate for public office.

(Emphasis added). Both bribery statutes conclude with the same language: “will or may be

appointed to a public office or designated or nominated as a candidate for public office”

(emphasis added). In short, to find that a payoff is a bribe within the meaning of these statutes, a

payment must be made for one of three reasons: (1) a promise of appointment to public office;

(2) a designation as a candidate for public office; or (3) a nomination as a candidate for public

office.

A Wilson Pakula certificate is governed by New York State Election Law:

The members of the party committee representing the political subdivision of the office for which a designation or nomination is to be made, unless the rules of the party provide for another committee, in which case the members of such other committee,


7

and except as hereinafter in this subdivision provided with respect to certain offices in the city of New York, may, by a majority vote of those present at such meeting provided a quorum is present, authorize the designation or nomination of a person as candidate for any office who is not enrolled as a member of such party as provided in this section. In the event that such designation or nomination is for an office to be filled by all the voters of the city of New York, such authorization must be by a majority vote of those present at a joint meeting of the executive committees of each of the county committees of the party within the city of New York, provided a quorum is present at such meeting. The certificate of authorization shall be filed not later than four days after the last day to file the designating petition, certificate of nomination or certificate of substitution to which such authorization relates. The certificate of authorization shall be signed and acknowledged by the presiding officer and the secretary of the meeting at which such authorization was given.

N.Y. Elec. Law § 6-120 (3) (emphases added). Thus, the language of the Election Law

distinguishes the Wilson Pakula certificate from a designation or a nomination for public office

and the Penal Law does not criminalize payments for a Wilson Pakula certificate.

2. New York State Legislators Chose to Distinguish a Wilson Pakula Certificate From a Designation, Nomination, or Appointment to a Public Office

The legislative histories of these three statutes overlap, and, indeed, illuminate their

relationship. In 1965, New York State legislators passed Penal Law §§ 200.45 and 200.50; these

bribery statutes have remained unaltered since. See N.Y. Penal Law §§ 200.45 and 200.50. The

Wilson Pakula statute, meanwhile, originated in 1947, but legislators passed the current statute in

1976, with its last amendment in 1982. See Ingersoll v. Curran, 188 Misc. 1003 (N.Y. Sup. Ct.

Albany Cty. 1947), aff’d, 297 N.Y. 522 (N.Y. App. Div. 3d Dep’t 1947); N.Y. Elec. Law § 6-

120 (3).

The legislators in 1965 who passed the bribery statutes were aware of the earlier version

of the Wilson Pakula law. Likewise, the legislators in 1976 and 1982 who passed the current


8

Wilson Pakula law knew of the existing bribery laws. Despite the fact that the legislative authors

of the 1965 bribery laws knew of the Wilson Pakula law, they chose not to define bribery to

include a promise that a person “will or may receive a Wilson Pakula authorization” or some

other comparable language. Similarly, the subsequent authors of the 1976 Wilson Pakula statute

(and the most recent amendment in 1982) knew the 1965 bribery laws, yet chose not to describe

a Wilson Pakula as a designation, nomination, or appointment to a public office. Thus, the

legislative histories support the proposition that Wilson Pakula authorizations are not to be

conflated with the bribery statutes.

B. The Government Has Never Successfully Used Penal Law §§ 200.45 Or 200.50 As A Basis For Jurisdiction, And There Is Only One Reported Decision Of A New York State Prosecution Under These Bribery Statutes

The government has never before attempted to base jurisdiction for either conspiracy or

Travel Act charges on New York Penal Law Sections 200.45 and 200.50 (bribery statutes). As

stated above, the New York legislature passed Penal Law §§ 200.45 and 200.50 in 1965, and has

not since amended them. In the nearly fifty years since these bribery statutes became law, only

two criminal cases have been published wherein charges were brought under these two statutes:

People v. Cunningham, 88 Misc. 2d 1065 (N.Y.Sup. Ct. Bronx Cty. 1976) and United States v.

Margiotta, 688 F.2d 108 (2d Cir. 1982). In both Cunningham and Margiotta, the courts

dismissed all charges based on the bribery statutes. Moreover, these cases did not involve

charges of conspiracy or Travel Act violations or payments in exchange for a Wilson Pakula

certificate. Furthermore, the federal government brought only one of these two prior cases, and

there the court dismissed the Penal Law charge. See Margiotta, supra.


9

In Cunningham, Justice Leonard H. Sandler, who ultimately dismissed the bribery charge

brought under Penal Law § 200.45, noted the lack of prosecutions under the bribery statutes that

the federal government is pushing in the instant case:

The fact that no prosecution has ever been brought . . . is not of course conclusive by itself. But surely the settled judgment of prosecutors over so long a period of time, particularly in relation to a section that at best is ambiguous, is entitled to some weight. And this is to say nothing of the palpable unfairness of suddenly invoking the criminal sanction of such a section against those who had every reason to suppose that their conduct was lawful.

Cunningham, 88 Misc. at 1075.2 Since Cunningham in 1976, there are no reported decisions of

any New York State prosecutions under the bribery statutes.

Here, the government’s case constitutes an atypical and improper venture into the domain

of New York State, which itself does not venture to charge persons under this specific penal

statute relating to election law. Thus, the federal government’s exercise of prosecutorial

discretion is unprecedented in the bribery statutes’ near fifty years of existence, and should be

carefully scrutinized.

C. As Described On The Face Of The Indictment, The Defendants Had Only One Goal: To Help Mr. Smith Obtain A Wilson Pakula Certificate -- Such Actions, However, Do Not Amount to Bribery

On the face of the indictment, all alleged actions by the defendants as part of the “Wilson

Pakula Proposal” were in furtherance of a single goal: to help Mr. Smith acquire a Wilson Pakula

2 Cunningham was a political corruption prosecution of tremendous notoriety in the 1970s. See James Barron, Leonard H. Sandler Is Dead at 62; New York Appellate Court Justice. N.Y. TIMES, October 24, 1988, available at http://www.nytimes.com/1988/10/24/obituaries/leonard-h-sandler-is-dead-at-62-new-york-appellate-court-justice.html?src=pm (last visited August 3, 2013). Columbia Law School established the “Sandler Fellowship” after Justice Sandler.


http://www.nytimes.com/1988/10/24/obituaries/leonard-h-sandler-is-dead-at-62-new-york-appellate-court-justice.html?src=pm

http://www.nytimes.com/1988/10/24/obituaries/leonard-h-sandler-is-dead-at-62-new-york-appellate-court-justice.html?src=pm

10

certificate.3 The indictment reflects this goal throughout. Nevertheless, under the specific state

bribery statutes cited by the federal government as their bases for jurisdiction, the defendants did

not engage in bribery. Thus, the Court should dismiss these portions of the indictment.

The government asserts that Mr. Smith planned a “meeting with the five New York City

Republican Party county committee leaders . . . to discuss obtaining a Wilson Pakula certificate

from each.” Indictment, ¶ 27. According to the government, Mr. Halloran was paid to find out

what it would take to get certain people to support Mr. Smith’s getting a Wilson Pakula

certificate. Id. at ¶ 30. By the indictment’s own terms, Mr. Smith’s goal was “obtaining the

Republican Party Committee Leaders’ support” for a Wilson Pakula certificate. Id. at ¶ 32. The

government claims that the meeting arranged by Mr. Halloran on February 1, 2013 was to

discuss Mr. Tabone “obtaining a Wilson Pakula certificate” for Mr. Smith. Id. at ¶ 36. Mr.

Halloran purportedly stated that the cooperator and the undercover would pay Mr. Tabone “when

the Wilson Pakula is delivered.” Id. at ¶ 38. As recounted in the indictment, in conversations

with the undercover and the cooperator, Mr. Smith stressed that his payments were for a Wilson

Pakula. Id. at ¶ 39.

The undercover reportedly structured payments so that half would be paid after the

committee leaders “delivered” the Wilson Pakula certificate. Indictment, ¶ 41. The undercover

supposedly promised to Mr. Savino that “the [undercover] would pay [Mr. Savino] an additional

$15,000 after [Mr. Savino] signed a Wilson Pakula certificate.” Id. at ¶ 47. According to the

indictment, Mr. Tabone understood that the payments from Mr. Smith were in exchange for Mr.

Tabone promising Mr. Smith “a Wilson Pakula certificate.” Id. at ¶ 48. The undercover even

3 In the indictment, the government calls the defendants’ efforts to obtain a Wilson Pakula certificate a “Conspiracy to Bribe New York City Political Party Officials.” The charges associated with this “conspiracy,” however, include counts not conspiracy-based, such as the Travel Act violations alleged in Count Three. Therefore, for the sake of clarity, Mr. Halloran will refer to the defendants’ actions as the “Wilson Pakula Proposal.”


11

double-checked as to whether Mr. Tabone could actually “deliver a Wilson Pakula certificate.”

Id. The undercover and Mr. Smith both allegedly believed that payments to County Chairman

# 1 were for a “Wilson Pakula certificate.” Id. at ¶ 51.

According to the indictment, Messrs. Smith, Halloran, Tabone, and Savino were

soliciting the support of Republican Party county committee members solely for a Wilson Pakula

certificate. Messrs. Halloran, Tabone, and Savino could neither have designated nor nominated

Mr. Smith as a Republican Party mayoral candidate; they could only help him obtain a

permission slip, i.e. a Wilson Pakula certificate, which would only authorize Mr. Smith to collect

signatures in an attempt to acquire a valid designating petition. A valid designating petition for

Mayor requires the signatures of 7,500 people, not just the support of three county committee

members, such as is required for a Wilson Pakula. See N.Y. Elec. Law § 6-136 (2)(a). The

alleged “bribery” on the face of the indictment did not contain reference to any defendant

helping Mr. Smith obtain 7,500 signatures.

Thus, from the face of the indictment, the only goal of the alleged conspiracy was to

deliver to Mr. Smith a Wilson Pakula certificate. Consequently, there was no bribery.

D. A Wilson Pakula Certificate Is Neither A Designation Nor Nomination Under Penal Law §§ 200.45 And 200.50

The very language of the Wilson Pakula statute indicates that the Wilson Pakula

certificate is not the same as a designation or nomination. The Election Law sets apart a

designation or nomination from a Wilson Pakula certificate. A Wilson Pakula cannot be

confused or conflated with a nomination or designation in the bribery statutes because the Penal

Law requires courts to construe statutes according to the fair import of their terms in order to

promote justice. Moreover, only conduct falling within the plain, natural meaning of the

language of a Penal Law provision may be punished as criminal. Furthermore, the Penal Law


12

requires those charged to be given fair warning of the nature of the illegal conduct; thus, holding

the defendants accountable for non-criminal conduct, specifically, payments in exchange for a

Wilson Pakula, would violate the Penal Law. Finally, New York State case law distinguishes a

Wilson Pakula certificate from a designation or nomination.

1. The Very Language of the Wilson Pakula Statute Indicates That the Wilson Pakula Certificate is Not the Same as a Designation or Nomination

The very language of the Wilson Pakula statute shows that the Wilson Pakula certificate

is not the same as a designation or nomination. The purpose of a Wilson Pakula certificate is to

“authorize the designation or nomination of a person as candidate for any office who is not

enrolled as a member of such party. . . .” N.Y. Elec. Law § 6-120 (3). A Wilson Pakula

certificate is therefore not the designation or nomination in itself, but instead merely a

permission-slip for a nonparty member to attempt the designation or nomination process. Id.

Other language in the Wilson Pakula statute supports this differentiation. The Wilson Pakula

certificate “shall be filed not later than four days after the last day to file the designating petition,

certificate of nomination or certificate of substitution to which such authorization relates.” N.Y.

Elec. Law § 6-120 (3). Since the Wilson Pakula certificate can be filed after the “designating

petition” and the “certificate of nomination,” the Wilson Pakula cannot be the designating

petition or the certificate of nomination. Thus, the very language of the Wilson Pakula statute

distinguishes a Wilson Pakula certificate from a designation or nomination.

2. The Election Law Sets Apart a Designation or Nomination From a Wilson Pakula Certificate

The Election Law separates a Wilson Pakula certificate from a designation or

nomination. For example, § 6-118 states that “[e]xcept as otherwise provided by this article

[Article Six], the designation of a candidate for party nomination at a primary election and the


13

nomination of a candidate for election to a party position to be elected at a primary election shall

be by designating petition” (emphasis added). As the language of the Wilson Pakula statute,

§ 6-120 (3), differentiates a Wilson Pakula certificate from a “designating petition,” Election

Law § 6-118 supports a reading that a payment for a Wilson Pakula certificate is not for a

designation or nomination. See N.Y. Elec. Law § 6-120 (3); N.Y. Elec. Law § 6-118.

Election Law § 6-136 also supports this distinction between a Wilson Pakula and a

nomination or designation. Section 6-136 requires several threshold amounts of voter signatures

in order to generate a valid designating petition. There is no similar requirement for a Wilson

Pakula certificate under § 6-120. Instead, § 6-120 only requires a vote by an empowered

committee. These different requirements highlight the fundamental distinctions between a

Wilson Pakula certificate and a designation or nomination. See N.Y. Elec. Law § 6-120 (3);

N.Y. Elec. Law § 6-136.

3. A Wilson Pakula Cannot be Confused or Conflated With a Nomination or Designation in the Bribery Statutes Because the Penal Law Requires Courts to Construe Statutes According to the Fair Import of Their Terms in Order to Promote Justice

In order to promote justice and effect the objects of the law, a Wilson Pakula cannot be

confused or conflated with a designation or nomination under Penal Law §§ 200.45 or 200.50.

Under Penal Law § 5.00, statutes in the Penal Law “must be construed according to the fair

import of their terms to promote justice and effect the objects of the law.” The fair import of the

terms “designation or nomination” is different and distinct from a “certificate of authorization”

(Wilson Pakula certificate) in New York Election Law § 6-120 (3). All of Article Six of the

Election Law details what a designation or nomination entails or requires, whereas only one

small subsection of § 6-120 defines a Wilson Pakula certificate. Section 6-120 defines a Wilson

Pakula certificate only in terms of granting permission to seek a designation or nomination.


14

Furthermore, in 1965, in 1976, and again in 1982, the New York legislature chose not to equate a

Wilson Pakula certificate with a designation or nomination. Thus, this Court should not allow

the federal government to confuse or conflate a Wilson Pakula with a designating petition.

4. Only Conduct Falling Within the Plain, Natural Meaning of the Language of a Penal Law Provision May be Punished as Criminal

Courts should not “add anything to the plain and simple language of the [Penal Law].”

People v. Fitzgerald, 156 N.Y. 253, 266 (N.Y. 1898); People v. Shapiro, 308 N.Y. 453, 460

(N.Y. 1955) (citing Fitzgerald); People v. Gardner, 163 A.D.2d 892, 893 (N.Y. App. Div. 4th

Dep’t 1990) (citing Fitzgerald). A Penal Law section “cannot be extended beyond the fair scope

of the statutory mandate.” People v. Sansanese, 17 N.Y.2d 302 (N.Y. 1966); People v. Gottlieb,

36 N.Y.2d 629, 632 (N.Y. 1975); People v. Versaggi, 83 N.Y.2d 123, 131 (N.Y. 1994); People v.

Singh, 36 Misc. 3d 910, 913 (N.Y. Sup. Ct. Kings Cty. 2012) (citing Sansanese). Only “conduct

that falls within the plain, natural meaning of the language of a Penal Law provision may be

punished as criminal.” People v. Ditta, 52 N.Y.2d 657, 660 (N.Y. 1981); see also Matter of

Cesar P., 230 A.D.2d 61, 64 (N.Y. App. Div. 2d Dep’t 1997) (citing Ditta).

Thus, this Court should neither allow the federal government to add anything to the plain

and simple language of these Penal Law Sections nor permit the federal government to extend

these bribery statutes beyond the fair scope of the New York legislators’ mandate. To permit

such a contravention would criminalize conduct not within the plain, natural meaning of these

bribery statutes.

5. The Penal Law Requires Those Charged to be Given Fair Warning of the Nature of the Illegal Conduct, Thus Holding the Defendants Accountable for Non-Criminal Conduct, Specifically, Payments in Exchange for a Wilson Pakula, Would Violate the Penal Law


15

Ab initio the Penal Law is “[t]o give fair warning of the nature of the conduct proscribed

and of the sentences authorized upon conviction.” N.Y. Penal Law § 1.05 (2). It would be a

gross violation of Penal Law § 1.05 (2) to punish, as bribery, acts that Penal Law §§ 200.45 and

200.50 did not fairly warn defendants were proscribed, such as a payment for a Wilson Pakula

certificate. The New York State Court of Appeals’ decision in People v. Sansanese, 17 N.Y.2d

302 (N.Y. 1966), supra, is instructive here. In Sansanese, the defendant filed “a fraudulent

application for an operator’s license . . . because his criminal record and prior license revocations

for false statements in applications made it highly unlikely that a license would be granted him in

his own name.” Sansanese at 304. The prosecution charged the defendant with, amongst other

things, knowingly procuring or offering “any false or forged instrument to be filed, registered or

recorded in any public office within this state.” Id. at 306. The defendant moved to dismiss the

indictment. Id.

The New York Court of Appeals found that the “all-encompassing nature of [the statute

in question] must be read . . . in the light of the extremely narrow construction which the term

‘instrument’ has been otherwise given.” Sansanese at 306. Citing various dictionaries as

defining “instrument” as a formal or legal document, the Court of Appeals determined that the

fraudulent application was not an “instrument” within the meaning of the statute because it was

not a formal or legal document, but merely a falsified application. Id. The Court of Appeals

concluded, “[w]hile on the one hand we must not be overly technical in interpreting penal

provisions, on the other hand Penal responsibility cannot be extended beyond the fair scope of

the statutory mandate.” Id., quoting People v. Wood, 8 N.Y.2d 48, 51 (N.Y. 1960).

Sansanese shows that, in interpreting New York statutory law, definitions of the terms in

a statute limit the scope of that statute. While in Sansanese the Court of Appeals looked at


16

dictionary definitions of disputed terms, here direct statutory law defines a designation or

nomination completely differently than a Wilson Pakula certificate. The legislature spoke

directly on the differences. Following Sansanese for interpreting the plain language of New

York law, a Wilson Pakula certificate is excluded from the definition of a designation or

nomination because a Wilson Pakula certificate is not a designation or nomination within the fair

scope of the statute. See Sansanese at 306; see also Gottlieb, 36 N.Y.2d at 632; Versaggi, 83

N.Y.2d at 131; Singh, 36 Misc. 3d at 913 (citing Sansanese). Thus, statutory construction and

legislative intent support a reading that a Wilson Pakula certificate is not a designation or

nomination within the meaning of Penal Law §§ 200.45 and 200.50.

6. New York State Case Law Distinguishes a Wilson Pakula Certificate From a Designation or Nomination

The appellate courts in New York State have recognized a distinction between a Wilson

Pakula certificate and a designation or nomination. The most recent matter decided by a New

York State court is that of the Appellate Division, Second Department in the case of Potanovic v.

French, 65 A.D.3d 650 (N.Y. App. Div. 2d Dep’t 2009). Potanovic involved an intra-party

dispute of the Conservative Party. The Conservative Party Committee of the Town Of Beekman

(the “Town Committee”) issued Wilson Pakula certificates to certain nonparty members.

Potanovic, 65 A.D. at 650. The Conservative Party Committee of Dutchess County (the “County

Committee”), however, challenged the issuance of the Wilson Pakula certificates by the Town

Committee. The County Committee argued that they had the sole power to grant Wilson Pakula

certificates. Id. at 650.

The Appellate Division invalidated the Wilson Pakula certificates in Potanovic, and

determined that the Conservative Party’s rules established “that the Town Committee has the

right to nominate or designate a nonparty candidate for a town office, but that candidate must be


17

authorized by the County Committee during a Wilson-Pakula meeting.” Id. at 651 (emphases

added). Thus, the Appellate Division, consistent with the plain language of the statute,

distinguished the right to nominate or designate from a Wilson Pakula certificate.

Nor is Potanovic the only matter where a New York appellate court found a distinction

between a Wilson Pakula certificate and a designation or nomination. In Plunkett v. Mahoney,

76 N.Y.2d 848 (N.Y. 1990), the New York Court of Appeals found that “[the need] to timely file

a [Wilson Pakula certificate] . . . was required in this instance in order for there to be a valid

designating petition.” Plunkett at 850. In other words, the New York Court of Appeals in

Plunkett found that a Wilson Pakula certificate was not the equal of a designating petition.

Under Election Law § 6-118, a designating petition, and not a Wilson Pakula certificate, creates

a designation or nomination. The Plunkett court, therefore, found a difference between a Wilson

Pakula certificate and a designation or nomination.

Similarly, in Master v. Pohanka, 10 N.Y.3d 620 (N.Y. 2008), the New York Court of

Appeals held that “[i]f, however, a political party wishes to designate or nominate a person not

enrolled as a party member, it must follow the provisions set forth in Election Law

§ 6-120 (3). That section [is] also known as the Wilson-Pakula Law.” Pohanka at 624-25.

Thus, again in Pohanka, New York’s Court of Appeals noted a distinction between a designation

or nomination and the authorization to carry out a designation or nomination. The Pohanka court

determined that a Wilson Pakula certificate was a requirement for a nonparty member to be

designated or nominated, but was not a designation or nomination in itself.

Furthermore, the Wilson Pakula statute was not intended to define the designating or

nominating process, but instead to function as a gatekeeper to protect the integrity of political

parties. See Pohanka, 10 N.Y.3d at 626 (“purpose of the Wilson-Pakula Law was not to mandate


18

local control of the designation/nomination process, as the County Committee asserts; rather, its

purpose was to prevent the invasion or takeover of the party by outsiders”); see also Werbel v.

Gernstein, 191 Misc. 275, 278-79 (N.Y. Sup. Ct. Kings Cty. 1948) aff’d 273 A.D. 917 (N.Y.

App. Div. 2d Dep’t 1948) (expelling members of the Democratic party under the original Wilson

Pakula statute, despite their gathering designating petitions to appear on the ballot; the Werbel

court embraced the difference between a designating petition and the authority granted under the

Wilson Pakula statute). Consequently, to equate a designation or nomination with a Wilson

Pakula certificate would contravene the intent and spirit of the original and subsequent iterations

of the Wilson Pakula law as well as the current version of the bribery statutes drafted in 1965.

E. A Wilson Pakula Certificate Is Not A Promise That A Person May Or Will Be “Appointed To A Public Office” Under Penal Law §§ 200.45 And 200.50

The bribery statutes also prohibit payment in exchange for an appointment to a public

office. See N.Y. Penal Law §§ 200.45 and 200.50. A Wilson Pakula certificate, however, is not

a promise that someone will be “appointed to a public office” within the meaning of Penal Law

§§ 200.45 and 200.50. Under New York statutory law, the terms “elect” and “appoint” are held

out in contrast to one another. For example, under Election Law § 1-104 (5), the term “party

officer” is defined as “one who holds any party position or any party office whether by election,

appointment or otherwise” (emphasis added). This distinction between “elect” and “appoint” is

found in many other New York statutes. See, e.g., N.Y. Gen. Mun. Law § 120-b (“[t]hey shall

jointly elect or appoint”); N.Y. Rural Elec. Coop. Law § 21 (“[t]he board of directors may also

elect or appoint”).

This distinction between “elect” and “appoint” is highlighted further when comparing the

key language of the bribery statutes: “will or may be appointed to a public office or designated or

nominated as a candidate for public office.” N.Y. Penal Law §§ 200.45 and 200.50. In this


19

sentence, the verbs “designated” and “nominated” are clearly not the same as “appointed.”

Being “appointed to a public office” is a different reward than being “designated or nominated as

a candidate for public office.” In fact, Article Six of the Election Law explicitly links the terms

“nomination” and “designation” with the word “election,” not “appointment.” “Nomination and

designation of candidates for election to public office or party position are governed by this

article.” N.Y. Elec. Law § 6-100 (emphasis added). Thus, statutory law distinguishes a promise

to appoint from a promise to elect, to nominate, or to designate.

Case law also supports the distinction between an appointed position and an elected one.

See e.g. Alamo v. Strohm, 74 N.Y.2d 801 (N.Y. 1989) (marking a distinction between elective

and “appointative” offices); People v. Burke, 82 Misc. 2d 1005, 1008 (N.Y. Sup. Ct. New York

Cty. 1975) (same). The result of this distinction is that Mr. Halloran did not promise

appointment within the bribery statutes. According to the indictment, Mr. Halloran merely tried

to assist Mr. Smith in obtaining permission to canvass for signatures so he could possibly run in

the Republican primary; he did not offer Mr. Smith a plum, appointed position. As per the

government, Mr. Halloran instead presented Mr. Smith with the opportunity to be elected --

which, as the language characterizing “elect” and “appoint” in New York law demonstrates, is

fundamentally different from an appointment.

Even assuming arguendo that Mr. Halloran’s actions were somehow an appointment,

such an appointment was not for a public office, but for a position within a political party. Mr.

Smith was not offered the mayoralty in exchange for his payments; instead, Mr. Smith sought

permission to obtain an opportunity to possibly hold a temporary place within a political party --

that of a candidate. See Hayes v. New York State Bd. of Elections, 32 A.D.3d 660, 661 (N.Y.

App. Div. 3d Dep’t 2006) (distinguishing between a public office and a party position); Bliss v.


20

Nobles, 297 A.D.2d 457 (N.Y. App. Div. 3d Dep’t 2002) (same); Denn v. Mahoney, 64 A.D. 2d

1007 (N.Y. App. Div. 4th Dep’t 1978) (same).

Again, Penal Law §§ 5.00 and 1.05 (2) support this distinction between a public office

and a party position. The Penal Law “must be construed according to the fair import of their

terms to promote justice and effect the objects of the law.” N.Y. Penal Law § 5.00. The fair

import of the terms “appointed to a public office,” implying a paying position at the public’s

expense, is distinct from a Wilson Pakula certificate of authorization, which is an unfunded

permission-slip for a candidate to attempt to gain a public office.

A principal purpose of the Penal Law is “[t]o give fair warning of the nature of the

conduct proscribed and of the sentences authorized upon conviction.” N.Y. Penal Law § 1.05

(2). People v. Sansanese, discussed in Part II, Section D, supra, states that “[p]enal responsibility

cannot be extended beyond the fair scope of the statutory mandate.” To find that a Wilson

Pakula certificate is the same as an appointment to a public office extends the bribery statutes far

beyond the fair scope of their mandate.

People v. Burke, supra, is instructive here as well. In Burke, two candidates vied for the

Democratic nomination for a congressional seat. One candidate paid the other to leave the race.

The court in Burke found that this was not an instance of a bribe in exchange for a public office

or a nomination. Burke, 82 Misc. 2d 1005. There was no bribe for public office or nomination

because there was no guarantee that the remaining candidate would win either the nomination or

the eventual seat. Id. The remaining candidate still had to run in the race, and others could

potentially join the primary or general election and defeat him.

The logical extension of Burke exists here:


21

1) even if Mr. Smith obtained the Wilson Pakula, he may not have been able to generate

enough signatures to run in the Republican primary;

2) even if Mr. Smith acquired enough signatures to run in the Republican primary, he still

could have been defeated there; and

3) if somehow Mr. Smith won the Republican primary, he still could have lost to one of

his fellow Democrats in the general election.

As such, the alleged payments made by Mr. Smith to Mr. Halloran were no guarantee of an

appointment to a public office under §§ 200.45 and 200.50.

In sum, in reviewing statutory construction, legislative history, and case law, there is a

sharp distinction between a Wilson Pakula certificate and an appointment to a public office.

Therefore, because the sole object of the defendants’ actions was a Wilson Pakula certificate, it

was not a promise that someone would “be appointed to a public office” within the bribery

statutes.

F. Summary

The supposed conspiracy had, according to the indictment, the singular goal of investing

Mr. Smith with a Wilson Pakula certificate. Nevertheless, payment in exchange for a Wilson

Pakula certificate does not violate the bribery statutes, because a Wilson Pakula certificate is not

a designation, nomination, or an appointment to a public office. Thus, the indictment is facially

invalid as to the part of Count One that relies on violations of Penal Law §§ 200.45 and 200.50,

and all of Count Three.

III. MR. HALLORAN DID NOT ENGAGE IN ANY ACTIVITY THAT VIOLATED THE BRIBERY STATUTES, SO ALL CHARGES IN COUNT THREE SHOULD BE DISMISSED AS A MATTER OF LAW


22

To sustain a Travel Act charge, the government must allege that Mr. Halloran violated

Penal Law §§ 200.45 and 200.50. The government, however, has failed to state an offense under

Count Three as Mr. Halloran neither received a bribe under § 200.50, nor did he give a bribe

under § 200.45. Accordingly, this Court should dismiss Count Three in its entirety.

A. In Order For The Government To Allege A Travel Act Violation, Mr. Halloran Must Have Violated The Bribery Statutes

As explained in Part I, Section B supra, Count Three alleges that Mr. Halloran violated

the Travel Act, 18 U.S.C. § 1952. Indictment, ¶¶ 64-65. This purported Travel Act violation,

however, requires the presence of an underlying state law violation. See 18 U.S.C. § 1952 (a) (2-

3); Indictment, ¶ 65. The government’s Travel Act charge against Mr. Halloran specifically

claims that Mr. Halloran violated Penal Law §§ 200.45 and 200.50. Indictment, ¶ 65. Thus, in

order to sustain Count Three as against Mr. Halloran, the government must allege that Mr.

Halloran violated the bribery statutes.

This is in contrast to the general conspiracy charge of Count One. As part of a

conspiracy charge, a defendant may be held responsible for actions by the co-conspirators. See,

e.g., United States v. Svoboda, 347 F.3d 471, 476 (2d Cir. 2003). As demonstrated in Part II,

Section C, none of the alleged actions by any of the supposed co-conspirators was for any object

other than a Wilson Pakula certificate, which, as exhaustively detailed in Part II, Section D, is

not part of the bribery statutes.

The Travel Act charge is under Count Three, while the conspiracy charge is under Count

One. Indictment, ¶¶ 57-61, 64-65. In addition, Count One contains no reference to a Travel Act

violation. Id. at ¶¶ 57-61. To sustain a count based on a Travel Act violation, the government

must allege, within the four corners of the indictment, that Mr. Halloran (1) used a facility of

interstate or foreign commerce, (2) with intent to commit any unlawful activity, and (3)


23

thereafter performed an additional act to further the unlawful activity. United States v. Salameh,

152 F.3d 88, 152 (2d Cir. 1998); see also United States v. Kozeny, 493 F. Supp. 2d 693, 706

(S.D.N.Y. 2007) aff'd, 541 F.3d 166 (2d Cir. 2008) (citing Salameh). The government alleges

that Mr. Halloran’s unlawful activity were his violations of the bribery statutes. Indictment, ¶¶

64-65.

B. Mr. Halloran Did Not Receive A Bribe Under Penal Law § 200.50

As explained in Part II, Sections A-E, Mr. Halloran did not receive a bribe under Penal

Law § 200.50 because the alleged payments to Mr. Halloran were not for a designation,

nomination, or appointment to a public office within the meaning of § 200.50. All alleged

payments made to Mr. Halloran under the Wilson Pakula Proposal were solely for a Wilson

Pakula certificate.

The indictment asserts Mr. Halloran was paid to determine what could secure a Wilson

Pakula certificate for Mr. Smith and to arrange meetings to do so. Indictment, ¶¶ 30, 46, 50.

According to the indictment, the undercover paid Mr. Halloran to arrange meetings with Messrs.

Tabone and Savino to obtain a Wilson Pakula certificate for Mr. Smith. Id. at ¶ 33. Mr.

Halloran supposedly told the undercover the amounts it would take to deliver a Wilson Pakula

certificate. Id. at ¶ 33. The government claims that the meeting arranged by Mr. Halloran on

February 1, 2013 was to discuss Mr. Tabone “obtaining a Wilson Pakula certificate” for Mr.

Smith. Id. at ¶ 36. Mr. Halloran purportedly stated that the cooperator and the undercover

would pay Mr. Tabone “when the Wilson Pakula [was] delivered.” Id. at ¶ 38. Mr. Halloran

arranged meetings where parties discussed payments in exchange for a Wilson Pakula certificate,

sometimes, in Mr. Halloran’s presence. Id. at ¶¶ 38-39, 47. On the face of the indictment,

therefore, Mr. Halloran was solely concerned with one goal: getting Mr. Smith a Wilson Pakula


24

certificate. As exhaustively detailed in Part II, Sections A-E, a Wilson Pakula certificate is not a

designation, nomination, or appointment to a public office within the Penal Law § 200.50. Thus,

Mr. Halloran did not receive a bribe.

C. Mr. Halloran Did Not Give A Bribe Under Penal Law § 200.45

As explained in Part II, Sections A-E, and in Part III, Section B, Mr. Halloran did not

give a bribe under Penal Law § 200.45 because any alleged payment was not for a designation,

nomination, or appointment to a public office within the meaning of § 200.45. According to the

indictment, Mr. Halloran only acted to obtain a Wilson Pakula certificate, and therefore did not

violate Penal Law § 200.45. Therefore, we refer this Court to Part II, Sections A-E, and Part III,

Section B, which demonstrates that Mr. Halloran individually did not receive a bribe under Penal

Law § 200.45.

In addition, Penal Law § 200.45 does not apply to Mr. Halloran’s actions here because

nowhere on the face of the indictment for those charges corresponding to the Wilson Pakula

Proposal does the government allege that Mr. Halloran ever gave payment to anyone. In the

indictment, Count Three is a Travel Act violation charge, yet it is factually based upon the

Wilson Pakula Proposal. Indictment, ¶¶ 64-65. The Wilson Pakula Proposal is described in

paragraphs 26-56 of the indictment. Nowhere in paragraphs 26-56 does the indictment indicate

that Mr. Halloran gave money to anyone. Instead, paragraphs 26-56 merely allege that Mr.

Halloran received money to arrange negotiations between parties for a Wilson Pakula certificate.

Id. at ¶¶ 33, 46, 50. On the face of the indictment, Mr. Halloran did not violate Penal Law

§ 200.45.

D. Summary


25

The Travel Act violation of Count Three as written requires that Mr. Halloran himself

gave or received a bribe within the meaning of Penal Law §§ 200.45 and 200.50. On the face of

the indictment, however, Mr. Halloran did not personally violate Penal Law §§ 200.45 and

200.50. As a result, Count Three of the indictment is facially invalid and should be dismissed.

CONCLUSION

The government has never before attempted to base jurisdiction for either conspiracy or

Travel Act charges on New York Penal Law Sections 200.45 and 200.50 (bribery statutes). New

York law plainly shows that a Wilson Pakula authorization is not a designation, nomination, or

an appointment to a public office within the meaning of the bribery statutes. Consequently, none

of the defendants’ alleged actions are encompassed within the meaning of these bribery statutes,

because the only goal sought was a Wilson Pakula certificate. Therefore, Mr. Halloran, under

Fed. R. Crim. P. 12(b)(3)(B), moves this Court to dismiss the section of Count One that relies on

a violation of the bribery statutes for support.

Mr. Halloran also seeks to dismiss all of Count Three, as the government bases its

jurisdiction there solely on violations of the bribery statutes. As detailed above, Mr. Halloran did

not give or receive a bribe within the meaning of these statutes. Thus, the government has failed

to state an offense. Consequently, as a matter of law, the Court should dismiss Count Three in

its entirety as well.

Dated: August 5, 2013 New York, New York

Respectfully submitted, /s/ Vinoo P. Varghese

Vinoo P. Varghese John G. Mateus


show temp.pl

Documents