United States v. Bruno
2011 U.S. App. LEXIS 22898
| 2d Cir. | 2011Background
- Bruno, former New York State Senate Majority Leader, was convicted of two counts of honest services mail fraud based on undisclosed conflicts of interest and related payments.
- Counts Four and Eight centered on $200,000 in consulting fees and a $40,000 horse-payment tied to Abbruzzese and Evident Technologies, allegedly to influence Bruno's official actions.
- Bruno arranged consulting agreements with CTA, C TA, CBC, Motient, and TerreStar through which CBC received payments while Bruno's staff performed company administrative work.
- Evidence showed Bruno did not keep records or produce work product for the consulting work; key witnesses identified little to no actual consulting activity.
- Supreme Court later decided Skilling v. United States, narrowing 18 U.S.C. § 1346 to bribery/kickbacks and holding non-disclosure of conflicts of interest alone does not violate the statute.
- The Indictment did not explicitly plead a bribery/kickback theory, and the court dismissed Counts Four and Eight as vacated convictions would require retrial under Skilling’s standard.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Counts Four and Eight must be vacated in light of Skilling | Bruno's conviction supported by original theory sustains retrial under Skilling | Skilling requires vacatur of non-bribery honest services convictions | Counts Four and Eight vacated; retrial permitted under Skilling |
| Whether the Indictment should be dismissed | Indictment could be read to allege bribery/kickback theory | Indictment does not explicitly charge bribery/kickback; should be dismissed | Indictment dismissed without prejudice for lack of explicit bribery/kickback theory |
| Whether the sufficiency of the evidence should be reviewed under Skilling | Record supports conviction under Skilling's bribery/kickback theory | Evidence insufficient under Skilling's standard | We conduct sufficiency review; evidence supports quid pro quo under Skilling; retrial not barred by double jeopardy |
| Whether double jeopardy bars retrial on Count Three (hung jury) and Counts Four/ Eight | Retrial barred if initial insufficiency prevented conviction | Hung jury precludes retrial for Counts Three; potential bars to reprosecution for others | Hung Count Three not barred from retrial; double jeopardy not precluding retrial on Four/ Eight under Skilling; remand for proceedings consistent with opinion |
Key Cases Cited
- Skilling v. United States, 130 S. Ct. 2896 (2010) (limits honest services to bribes/kickbacks, not undisclosed conflicts)
- United States v. Riley, 621 F.3d 312 (3d Cir.2010) (plain-error standard for non-bribery disclosure theory)
- Richardson v. United States, 468 U.S. 317 (1984) (no double jeopardy bar after mistrial when jury cannot reach verdict)
- Yeager v. United States, 129 S. Ct. 2360 (2009) (noneconomic rationale for retrial after hung jury or reversal not on sufficiency grounds)
- Burks v. United States, 437 U.S. 1 (1978) (double jeopardy limits retrial after reversal for insufficiency of evidence)
- Ganim v. United States, 510 F.3d 134 (2d Cir.2007) (quid pro quo in bribery cases and inference from benefits)
- Triumph Capital Group, Inc. v. Hispano, 544 F.3d 149 (2d Cir.2008) (evidence of pay-for-favor agreements supports bribery in public officials cases)