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Brennan v. United States

decided: January 20, 1989.

WILLIAM C. BRENNAN, PETITIONER-APPELLANT,
v.
UNITED STATES OF AMERICA, RESPONDENT-APPELLEE



Appeal from a judgment of the United States District Court for the Eastern District of New York, Weinstein, J,, granting in part and denying in part appellant William C. Brennan's petition for relief under 28 U.S.C. § 2255. Affirmed.

Meskill, Pierce and Winter, Circuit Judges.

Author: Meskill

MESKILL, Circuit Judge:

William C. Brennan sought relief under 28 U.S.C. § 2255 (1982), arguing that the Supreme Court's decision in McNally v. United States, 483 U.S. 350, 107 S. Ct. 2875, 97 L. Ed. 2d 292 (1987), required the vacatur of his nine wire fraud convictions and also his seventeen other convictions. The United States District Court for the Eastern District of New York, Weinstein, J., granted in part and denied in part the motion, vacating only the wire fraud convictions. United States v. Brennan, 685 F. Supp. 883 (E.D.N.Y. 1988). Brennan appeals from so much of the judgment as denied his request for relief. We affirm the judgment of the district court.

BACKGROUND

William C. Brennan, a former Justice of the Supreme Court of the State of New York in Queens County, was convicted, after a jury trial, of twenty-six felonies involving use of his judicial office for the solicitation and acceptance of bribes. Specifically, Brennan was convicted of one substantive count under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 2, 1962(c) (1982), one count of conspiracy under RICO, 18 U.S.C. § 1962(d), nine counts of fraud by wire, 18 U.S.C. §§ 2, 1343 (1982) (wire fraud), fourteen counts of interstate travel in aid of racketeering enterprises, 18 U.S.C. §§ 2, 1952(a) (1982) (Travel Act), and one count of interference with commerce by threats or violence, 18 U.S.C. §§ 2, 1951(a) (1982) (extortion). The facts leading up to these convictions are set out in our earlier opinion, United States v. Brennan, 798 F.2d 581 (2d Cir. 1986), but we reexamine here the specific details of the convictions challenged on this appeal.

The government offered evidence to show that, between 1972 and 1985, Brennan agreed to fix seven cases in exchange for bribes. The charges of the indictment, however, were limited to Brennan's corrupt handling of four of these cases, the Messina, Botta, Romano and Poilsi cases. The two RICO counts focused on Brennan's activities in connection with all four of these cases.

Brennan's nine wire fraud and fourteen Travel Act convictions were based only on acts done in connection with the fixing of the Romano and Polisi cases. Under these two statutes, numerous interstate telephone calls and trips made in connection with the Romano and Polisi bribery schemes each constituted separate felonies. Phone calls made between Queens or Floral Park, New York and Hallandale, Fort Lauderdale or Miami, Florida by Brennan or his middleman Anthony Bruno formed the bases of Brennan's convictions for both wire fraud and Travel Act crimes. Specifically, the following table shows the fourteen acts that led to Brennan's fourteen Travel Act convictions and nine wire fraud convictions.

(See Table In Original)

App. at 37-38, 42. Additionally, Brennan's activities in connection with the Polisi case led to his single extortion conviction. App. at 43.

With respect to Count One, the substantive RICO count, the jury was properly instructed that in order to convict Brennan, they would have to find, inter alia, that he had committed at least two predicate acts. App. at 55; see 18 U.S.C. §§ 1961(5), 1962(c). The jury had before it a pool of possible predicate acts comprised of twenty-eight alleged violations of state and federal law committed by Brennan. These possible predicate acts included the above-detailed federal wire fraud, Travel Act and extortion offenses that were separately charged under Counts 3-26 of the indictment, together with four alleged instances of Bribe Receiving, in violation of New York state law, N.Y. Penal Law § 200.10 (McKinney 1988), in connection with the Messina, Botta, Romano and Polisi cases. These twenty-eight acts were divided into four categories corresponding to the four cases the indictment charged Brennan with having fixed. Thus, the pool of acts that could have supported a substantive RICO conviction were:

1. Bribe Receiving in connection with the Messina case;

2. Bribe Receiving in connection with the Botta case;

3. In connection with the Romano case:

a. Bribe Receiving;

b. Violation of the Travel Act (also alleged as separate crimes under Counts 3-10);

c. Wire Fraud (also alleged as separate crimes under Counts 11-16); and

4. In connection with the Polisi case:

a. Bribe Receiving;

b. Violation of the Travel Act (also alleged as separate crimes ...


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