The opinion of the court was delivered by: Gary L. Sharpe District Court Judge
The defendant Joseph L. Bruno, a former New York Senate Majority Leader and 43rd Legislative District Senator, has been charged in an eight count indictment with mail and wire fraud. The indictment alleges that Bruno engaged in a scheme to defraud New York's citizens of their intangible right to his honest services by failing to disclose conflicts of interest and by failing to make disinterested decisions when performing his official duties. (See Indictment, Dkt. No. 1; see also 18 U.S.C. §§ 1341 (mail fraud), 1343 (wire fraud), 1346 (scheme to defraud as including intangible right of honest services.))
Bruno has filed motions seeking the following relief: (1) dismissal of the indictment because (a) it is unconstitutionally vague, (b) it is unconstitutionally vague as applied, (c) it violates federalism principles; (d) it violates the statute of limitations; and (e) it resulted from an improper grand jury charge (see FED. R. CRIM. P. 12; see also Bruno Motions and Reply, Dkt. Nos. 22-24, 32); (2) an order requiring the government to file a bill of particulars responding to thirty-eight specific requests (see FED. R. CRIM. P. 7(f); see also Bruno Motion, Dkt. No. 15); (3) an order striking surplusage from the indictment because it is (a) prejudicial and inflammatory, or (b) related to events outside of the statute of limitations (see FED. R. CRIM. P. 7(d); see also Bruno Motions and Reply, Dkt. Nos. 16, 19, 32); and (4) an order striking the forfeiture allegations in the indictment because they violate his due process rights (see FED. R. CRIM. P. 7(c)(2); see also Bruno Motion, Dkt. No. 25). Bruno seeks a stay of the impending trial scheduled for November 2, 2009, because the Supreme Court has granted certiorari in a similar case. (See Lowell Ltrs., Dkt. Nos. 39, 44.) The government has filed a single response to all motions, and has opposed the stay. (See Gov't Motion Response, Dkt. No. 28; Coombe Ltr., Dkt. No. 41.) Bruno has filed a reply, and a response to the government's opposition to the stay. (See Dkt. No. 32, 37, 39, 44.)
For the reasons that follow, all motions and the requested stay are denied.
As relevant to Bruno's arguments, the indictment was filed on January 23, 2009, and alleges that he engaged in an honest services fraudulent scheme from 1993 through 2006. While it alleges various acts in furtherance of that scheme that clearly predate the mail and wire fraud five year statute of limitations, the actual charges allege mail and wire use within the statutory period.
The indictment extensively details allegations that Bruno schemed to defraud New York citizens of their right to his honest services by failing to engage in disinterested decision-making when performing his official duties and by failing to disclose conflicts of interest. For example, the indictment alleges that his decision-making was influenced when he took official actions benefitting private interests in exchange for unearned remuneration of $3 million dollars. It alleges that he violated his ethical obligations under New York's Public Officers Law when he failed to disclose material conflicts of interest, accepted other employment that impaired his independent judgment and official duties, used his official position to secure unwarranted privileges, took unauthorized gifts that were intended to influence him, and failed to disclose these conflicts on required annual financial disclosure forms. Under the Public Officers Law, such violations are punishable as crimes.
As it relates to his request for a bill of particulars, the indictment is detailed and his access to the government's file has been extensive.
III. Dismissal of the Indictment and Stay of the Trial
A. History of 18 U.S.C. §1346, Vagueness and Federalism
"The courts have recognized two principal theories of honest services fraud in cases involving public officials: fraud based on a public official's acceptance of a bribe and fraud based on a public official's failure to disclose a material conflict of interest." United States v. Kincaid-Chauncey, 556 F.3d 923, 942 (9th Cir. 2009). "Until 1987, federal courts read both statutes [(§§1341 & 1343)] to criminalize not only schemes for obtaining money or property, but also schemes to deprive another of the intangible right of honest services." United States v. Rybicki, 354 F.3d 124, 133 (2d Cir. 2003) (internal citation and quotation marks omitted). Thereafter, in McNally v. United States, 483 U.S. 350 (1987), the Supreme Court held that "all schemes or artifices to defraud relating to intangible rights to good government, honest services, privacy - indeed all things other than money or property - were...beyond the mail fraud proscriptions." Rybicki, 354 F.3d at 134.
The following year, Congress enacted §1346 in response to McNally and reinstated the intangible rights doctrine which states:
For the purposes of this chapter [18 U.S.C. §1341 et seq.] the term "scheme or artifice to defraud" includes a scheme or artifice to deprive another of ...