United States v. Post
950 F. Supp. 2d 519
S.D.N.Y.2013Background
- Defendants Constance G. Post and Wayne Charles were convicted after a four-week trial of one count each of mail fraud or honest services fraud and conspiracy, with Charles also convicted of making false statements.
- They moved under Rule 12(b)(3) to dismiss Counts 1 and 2 and sought a new trial on Count 3, arguing Skilling v. United States and Black v. United States undermined the honest services theory.
- The Indictment alleged three schemes: Micros Only (a front for Charles’s payments), a $500,000 loan to The Charles Group, and $40,000 in HUD disbursements, with Post as MVURA official overseeing funds.
- Post and Charles allegedly concealed their personal relationship and Charles’s involvement with Micros Only; Post approved and processed related payments and invoices without disclosure.
- Evidence included trial testimony, documents, and recordings; the government described both pecuniary fraud and honest services as purposes of the mail fraud scheme, and the defense contested these theories.
- The court postponed sentencing pending the Supreme Court’s rulings in Skilling and Black and ultimately addressed the Rule 12(b)(3) motions after those decisions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Indictment states an offense post-Skilling | Indictment plausibly charges two theories; Skilling narrows §1346 but does not render indictment defective. | Indictment relies on an invalid honest services theory; Skilling vitiates the basis for conviction. | Indictment sufficient; not dismissed. |
| Jury instructions allowed alternative-theory conviction | Honest services and money/property fraud were proper alternative theories under §1341. | Instructions allowed conviction on invalid honest services theory; error is plain. | Error acknowledged; not harmless; Counts 1–2 vacated. |
| Harmlessness of Skilling error | Pecuniary fraud theory was supported by overwhelming evidence; error harmless. | Because theory was intertwined and the jury could have found only the invalid theory, error was not harmless. | Harmlessness analysis not satisfied; error not harmless; Counts 1–2 vacated. |
| Prejudicial spillover to Count Three | Spillover could have influenced Count 3 verdict. | Count 3 verdict was separate; evidence would be admissible without the flawed theory. | Spillover not warranted; Count 3 stands. |
Key Cases Cited
- Hedgpeth v. Pulido, 555 U.S. 57 (Supreme Court 2008) (conviction reviewed for harmless error when multiple theories exist)
- Skilling v. United States, 561 U.S. 358 (Supreme Court 2010) (limits §1346 to core honest services; clarifies harmlessness standard after trial)
- Neder v. United States, 527 U.S. 1 (Supreme Court 1999) (establishes harmless-error standard for review)
- Andrews v. United States, 681 F.3d 509 (3d Cir. 2012) (assesses harmlessness of Skilling error in context of total trial evidence)
- Mahaffy v. United States, 693 F.3d 113 (2d Cir. 2012) (harmless-error framework for Skilling errors in the Second Circuit)
- Black v. United States, 625 F.3d 386 (7th Cir. 2010) (analyzes alternative-theory error post-Skilling)
- Hornsby v. United States, 666 F.3d 296 (4th Cir. 2012) (vacates honest services verdict when error about theory is central)
- Botti v. United States, 711 F.3d 299 (2d Cir. 2013) (notes that Skilling errors can be harmless depending on context)