United States v. Vincent Tabone & Malcom A. Smith
664 F. App'x 23
| 2d Cir. | 2016Background
- Defendants Vincent Tabone and Malcolm A. Smith were convicted after a jury trial for crimes arising from a scheme to buy Wilson‑Pakula certificates (permits for Democrats to run as Republicans), including Travel Act bribery conspiracy, honest‑services wire fraud, Hobbs Act extortion (Smith), and witness tampering (Tabone).
- Sentences: Tabone — 42 months; Smith — 84 months. Appeals from the Southern District of New York convictions and sentences affirmed.
- Key factual evidence: recorded conversations regarding payments and promises to help secure state funding for a development project; testimony that Tabone held de facto control/trust within the Queens County Republican Party; testimony and witnesses about Tabone’s visit to Philip Ragusa to dissuade testimony.
- Government’s theory: bribes/kickbacks were exchanged for Wilson‑Pakula certificates and promises by Smith to use his influence to obtain state funds for the bribe‑givers’ benefit.
- Defendants raised constitutional challenges (vagueness of NY bribery statutes and 18 U.S.C. § 1346), federalism objections to federal prosecution, and sufficiency and jury‑instruction challenges (Hobbs Act official‑act definition; witness tampering; honest‑services fiduciary duty).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Vagueness of N.Y. Penal Law §§ 200.45, 200.50 (basis for Travel Act) | Gov: statutes clearly proscribe bribery like the Wilson‑Pakula scheme | Tabone/Smith: statutes are unconstitutionally vague | Rejected; statutes cover the conduct under any plausible reading (citing Halloran) |
| Vagueness of honest‑services statute (18 U.S.C. § 1346) | Gov: Skilling limits § 1346 to bribes/kickbacks, so not vague | Defs: § 1346 facially/vaguely defined | Rejected; Skilling confines § 1346 to bribe/kickback core so vagueness claim fails |
| Federalism — application of Travel Act and § 1346 to state political activity | Gov: federal statutes validly reach bribery and honest‑services fraud | Defs: federal prosecution intrudes on state jurisdiction; NY purportedly declined to prosecute | Rejected; no clear indication of improper intrusion and Skilling shows § 1346 covers bribes; no evidence NY declined prosecutions |
| Sufficiency — honest‑services fraud (Tabone) | Gov: evidence showed Tabone owed fiduciary duty to party (reliance, control, trust) | Tabone: no fiduciary duty to alleged victims | Rejected; jury reasonably found fiduciary duty based on testimony and Tabone’s statements asserting party control |
| Sufficiency — witness tampering (Tabone) | Gov: Tabone attempted corrupt persuasion to prevent Ragusa’s testimony | Tabone: statements/visit were not corrupt persuasion | Rejected; testimony about statements to Ragusa and unique circumstances supported conviction under § 1512 |
| Sufficiency and jury instruction — Hobbs Act extortion (Smith) | Gov: evidence of agreement to perform official acts (promises re: budget/agency funding; meeting facilitation) | Smith: arranging meetings is not an "official act"; jury charge insufficient post‑McDonnell | Rejected on sufficiency; meeting plus explicit promises supported agreement. Any instructional error did not plainly affect substantial rights given strong evidence |
Key Cases Cited
- Skilling v. United States, 561 U.S. 358 (limits § 1346 to bribe-and-kickback core)
- United States v. Halloran, 821 F.3d 321 (2d Cir.) (applied statutes to Wilson‑Pakula scheme; rejected similar vagueness/federalism claims)
- McDonnell v. United States, 136 S. Ct. 2355 (official‑act definition and meetings can be evidence of agreement)
- Ocasio v. United States, 136 S. Ct. 1423 (Hobbs Act extortion under color of official right requires payment to which official not entitled in return for official acts)
- Bond v. United States, 134 S. Ct. 2077 (principles limiting federal intrusion on state criminal jurisdiction)