United States v. Reichberg
5 F.4th 233
| 2d Cir. | 2021Background
- Jeremy Reichberg ran a scheme trading lavish in‑kind benefits to NYPD officers (private flights, tickets, travel, home improvements, business referrals) in exchange for favorable police action for his clients and associates.
- Reichberg partnered with Jona Rechnitz (cooperator) to identify officers to benefit and to obtain results; high‑ranking officers (including Philip Banks III, Michael Harrington, and James Grant) were involved.
- FBI investigation led to indictment (honest‑services wire fraud, related conspiracies, bribery counts, and obstruction); after an eight‑week trial Reichberg was convicted of honest‑services fraud, related conspiracies, and obstruction; acquitted on direct payment-of-bribes count; Grant was acquitted.
- At sentencing Reichberg received 48 months’ imprisonment (concurrent sentences) and two years’ supervised release.
- On appeal Reichberg raised multiple challenges: Fourth Amendment suppression, several evidentiary rulings (including admission of uncharged conduct and co‑defendant statements), Brady/Rule 16 timeliness, Limiting instructions/spillover prejudice, exclusion of defense experts, potential counsel conflict, jury instructions (agreement; "as opportunities arise" theory post‑McDonnell), and sufficiency of the evidence.
Issues
| Issue | Plaintiff's Argument (United States) | Defendant's Argument (Reichberg) | Held |
|---|---|---|---|
| Motion to suppress electronic data | Government acted reasonably and believed defendant consented to broad productions | Production to co‑defendants was an independent unreasonable seizure requiring suppression | Denial affirmed; government reasonably believed it had consent so suppression would not deter misconduct |
| Curative instruction after co‑defendant misstates law | Court must correct misstatement to accurately instruct jury | Correction prejudiced Reichberg by suggesting friendship irrelevant | No prejudice; court correctly and neutrally corrected the law |
| Admission of uncharged conduct (de Blasio bundling; Seabrook‑Huberfeld; Peralta investment) | Evidence probative of intent (Rule 404(b)) and not unfairly prejudicial | Evidence was improper propensity or overly prejudicial | Admission proper as intent evidence and not substantially more inflammatory |
| Allegedly late disclosure of documents (Rule 16) | Government timely remedied; court offered remedy (recall witness) | Late disclosure prejudiced defense impeachment and strategy | No prejudice shown; district court’s remedial offer cured any issue |
| Temporary admission and later striking of GX‑300A (spillover prejudice) | Limiting instructions and ultimate strike prevented prejudice | Temporary exposure created spillover bias against Reichberg | No miscarriage of justice; presumption juries follow limiting instructions and Grant’s acquittal supports lack of spillover |
| Admission of Grant’s statements to FBI (Confrontation Clause) | Statements not plainly inculpatory of Reichberg and limiting instruction applied | Statements were testimonial confessions naming Reichberg and violated confrontation rights | No Confrontation Clause violation; statements not clearly inculpatory alone and limiting instruction removed potential prejudice |
| Exclusion of defense experts (Thursland; Rabbi Gluck) | Disclosures failed Rule 16; court gave opportunities to supplement | Exclusion prevented defense presentation | No abuse of discretion; deficient disclosures and multiple chances justified exclusion |
| Jury instructions: agreement & "as opportunities arise" post‑McDonnell | Instructions required at least implicit agreement and described expected particular kinds of influence | Instructions insufficiently specific after McDonnell and failed to require agreement | Instructions upheld; satisfied precedent (Silver/Skelos) and adequately required particularized official‑act expectation |
| Sufficiency of evidence (bribery and obstruction) | Evidence (Rechnitz, timing of benefits, specific acts like gun licenses, promotions, releases) supports quid pro quo and obstruction intent | Evidence insufficient to show official acts or link to payments; obstruction lacked intent | Evidence sufficient as a whole; official acts met McDonnell standard and obstruction supported by concealment of devices |
Key Cases Cited
- McDonnell v. United States, 136 S. Ct. 2355 (2016) (defines "official act" for bribery/ honest‑services charges)
- United States v. Silver, 948 F.3d 538 (2d Cir. 2020) (post‑McDonnell guidance on jury instructions for honest‑services bribery)
- United States v. Skelos, 988 F.3d 645 (2d Cir. 2021) (clarifies viability of "as opportunities arise" theory after McDonnell)
- Bruton v. United States, 391 U.S. 123 (1968) (co‑defendant confession and Confrontation Clause principles)
- Richardson v. Marsh, 481 U.S. 200 (1987) (limiting instructions may cure Bruton problems)
- Davis v. United States, 564 U.S. 229 (2011) (exclusionary rule tied to deterrence rationale for suppression)
- United States v. Coplan, 703 F.3d 46 (2d Cir. 2012) (standard for sufficiency review—view evidence in light most favorable to government)
- United States v. Jass, 569 F.3d 47 (2d Cir. 2009) (Confrontation Clause review standard)
- United States v. Raymonda, 780 F.3d 105 (2d Cir. 2015) (clear‑error standard for factual findings on suppression)