United States v. Botti
2013 U.S. App. LEXIS 6310
| 2d Cir. | 2013Background
- Botti was convicted of honest services mail fraud in the District of Connecticut after a jury trial.
- On appeal, Botti argues the jury instruction on honest services mail fraud did not limit to bribery or kickbacks as required by Skilling.
- Indictment included counts for bribery, conspiracy to structure, structuring, and false statements; the district court severed related counts for trial.
- Evidence showed Botti’s payments, gifts, and favors to Shelton officials, including the Mayor, to obtain approvals for the 828 Project and financing.
- The government’s theory of honest services fraud centered on bribery; the court provided a broader instruction that could cover non-bribery theories.
- The district court denied post-trial motions; the court of appeals reviews the jury instruction issue de novo with plain error standards.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the jury instruction plain error? | Botti argues instruction allowed non-bribery theory post-Skilling. | Govt contends bribery was only theory and instruction framed accordingly. | Plain error occurred by failing to limit to bribery, but not reversible. |
| Did the error affect substantial rights warrant reversal? | Error potentially tainted verdict under Skilling. | Overwhelming bribery evidence; no alternative theory supported conviction. | Error did not seriously affect fairness; no reversal. |
| What is the proper standard of review for preservation of error? | Harmless error standard applies if objection made. | No timely objection; plain error governs; Johnson/Viola considerations apply. | Traditional plain error review applies; no reversal. |
Key Cases Cited
- Skilling v. United States, 561 U.S. 358 (Supreme Court (2010)) (honest services must be limited to bribery or kickbacks post-Skilling)
- Yeager v. United States, 557 U.S. 110 (Supreme Court (2009)) (cannot infer reasons for hung verdicts; respect unanimity verdicts)
- Johnson v. United States, 520 U.S. 461 (Supreme Court (1997)) (plain error standard for non-preserved errors)
- Olano v. United States, 507 U.S. 725 (Supreme Court (1993)) (three-part plain-error framework under Rule 52(b))
- Pasquantino v. United States, 544 U.S. 349 (Supreme Court (2005)) (mail fraud elements include scheme or artifice and objective)
- Bruno v. United States, 661 F.3d 733 (2d Cir. 2011) (limits honest services to bribery/kickbacks where applicable)
- Bahel v. United States, 662 F.3d 610 (2d Cir. 2011) (jury instructions sufficiency and theory framing in honest services)
- Mahaffy v. United States, 693 F.3d 113 (2d Cir. 2012) (post-Skilling plain-error review in honest services context)