United States District Court, S.D. New York
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
For the Government: Douglas Benjamin Bloom, Esq., Justin A. Anderson, Esq., Assistant United States Attorneys, United States Attorney's Office, Southern District of New York.
For Malcolm A. Smith, Defendant: Gerald Lawrence Shargel, Esq., Ross Mitchell Kramer, Esq., Winston & Strawn, LLP, New York, New York.
For Daniel J. Halloran, Defendant: Vinoo P. Varghese, Esq., John Gilgun Mateus, Esq., Varghese & Associates, P.C., New York, New York.
For Vincent Tabone, Defendant: Grant Martin Lally, Esq., Deborah Nirmala Misir, Esq., Lally & Misir, LLP, Mineola, New York.
KENNETH M. KARAS, UNITED STATES DISTRICT JUDGE.
OPINION AND ORDER
Defendants move to dismiss portions of the Indictment. In particular, Defendants challenge the application of the Travel Act, 18 U.S.C. § 1952, in this case, and the constitutionality of the Honest Services Fraud Statute, 18 U.S.C. § 1346, as applied here. Defendant Malcolm A. Smith (" Smith" ) also seeks to strike certain portions of the Indictment as prejudicial surplusage. For the reasons described herein, these Motions are denied.
A. Factual Background
The following facts are taken from the Indictment that the Grand Jury returned against Defendants on April 18, 2013 (" the Indictment" ). ( See Dkt. No. 42.) For the sake of clarity and convenience, and in keeping with the Indictment's organizational format, the Court will separately describe the facts relevant to the two schemes and one conspiracy in which the Government alleges that Defendants were involved.
1. The Spring Valley Real Estate Project Scheme
What the Government has termed " the Spring Valley Real Estate Project Scheme" allegedly involved Defendant Noramie Jasmin (" Jasmin" ), who was at all relevant times the Mayor of the Village of Spring Valley, in Rockland County, New York (" the Village" ); Defendant Joseph
Desmaret (" Desmaret" ), who was at all relevant times the Village's Deputy Mayor; a cooperating witness (" the CW" ); an undercover Federal Bureau of Investigation (" FBI" ) agent (" the UC" ); and two other undercover FBI agents posing as the UC's associates (" the Straw Developers" ). (Indictment ¶ ¶ 4, 5(a), 6-19.)
On or about August 5, 2011, during a meeting at a restaurant in Rockland County, Jasmin and the CW " discussed acquiring property for the Village through eminent domain and then selling that property to the CW." ( Id. ¶ 6.) Approximately six months later, on or about February 3, 2012, Jasmin and the CW met again, this time at a hotel in Suffern, New York, and discussed Jasmin " using her authority as Mayor to sell a parcel of Village land to the CW to develop into a community center" (" the Real Estate Project" ). ( Id.) Jasmin told the CW that " [i]n exchange for her assistance," she wanted to be a " partner," and to " build [the community center] together." ( Id.) Jasmin also offered to expedite the " zoning thing," and to facilitate " everything [going] smoothly for [the CW]." ( Id.)
Desmaret's involvement began on or about January 18, 2012, when he met the CW in the CW's car in Rockland County. ( Id. ¶ 7.) The CW told Desmaret about the Real Estate Project, and asked Desmaret to vote to approve the Project in his capacity as a member of the Village Board of Trustees (" the Board" ). ( Id.) After the CW asked " how much . . . it [would] take [him] to get it done," Desmaret told the CW to " [m]ake an offer." ( Id.) The CW suggested $10,000; Desmaret asked for double that. ( Id.) When Desmaret and the CW met in the CW's car again in Suffern on or about February 28, 2012, " the CW paid Desmaret $5,000 in cash as partial payment of the bribe" described above. ( Id. ¶ 8.) After the CW expressed concern that another party might approach Desmaret with a competing offer, Desmaret responded, " No, they won't get the vote . . . . It's a done deal." ( Id.)
The next month, on or about March 20, 2012, the CW met with Jasmin at a hotel in Suffern, where they " discussed the financial stake each of them would have" in the Real Estate Project. ( Id. ¶ 9.) The CW suggested that Jasmin receive a 20-percent stake in the Real Estate Project, but Jasmin replied, " Partnership is 50-50, right?" ( Id.) Jasmin and the CW also discussed the manner in which the Real Estate Project would be presented to the Board, as well as the formation of a " series of companies with ownership interests in a single company" (" the Holding Company" ), which would be used to " hide the identities of the [Project's] true owners." ( Id. ¶ ¶ 9-10.) Jasmin told the CW that she would provide him with a cellphone that he was to use " solely" for communications with her about the Real Estate Project. ( Id. ¶ 10.)
Three days after the March 20 meeting, on or about March 23, 2012, Jasmin handed the CW " an envelope containing the name and Social Security number of a relative in whose name Jasmin's interest in the Real Estate Project would be held," as well as " $600 in cash in order to register the Holding Company." ( Id. ¶ 10.) The next month, on or about June 21, 2012, at a meeting in Manhattan, Jasmin provided the CW with the cellphone that she had promised him. ( Id. ¶ 11.) The month after that, on or about July 23, 2013, an application to incorporate the Holding Company was sent to the Delaware Department of State. ( Id. ¶ 12.) The Holding Company was incorporated the next day. ( Id.) On or about August 9, 2012, the CW met Jasmin at a hotel in Suffern and gave her $5,000 in cash as an advance on
her share of the Real Estate Project's profits. ( Id. ¶ 13.)
On or about October 21-22, 2012, Jasmin, the CW, and the UC met at a hotel in White Plains, New York, along with the Straw Developers, during which meeting Jasmin, the CW, and the UC agreed that the Straw Developers " would appear before [the Board] posing as developers unrelated to the UC," in order to create the appearance of a competitive bid process. ( Id. ¶ 14.) Jasmin " coached" the UC and the Straw Developers " on how to make their presentations" to the Board, and indicated that she would act at the meeting as though she had never before met the UC. ( Id.) Jasmin also " told the UC that she mailed a copy of the proposed contract" between the Village and the Holding Company for the Real Estate Project, and that the UC should bring that copy to the Board meeting. ( Id.)
On or about October 22, 2012, Jasmin and Desmaret attended the Board meeting in question, where the UC and the Straw Developers " presented separate plans" for the Real Estate Project. ( Id. ¶ 15.) The Board considered the Real Estate Project at a meeting the next day, which meeting Jasmin and Desmaret also attended. ( Id.) The minutes of that meeting reveal that Jasmin told the Board that she and other members of the Board had just " carefully interviewed" the potential developers, and that she wanted approval to negotiate a contract with the Holding Company, which she described as " a reputable company who is willing to work with the Village . . . ." ( Id.) Both Jasmin and Desmaret voted in favor of Jasmin's proposal. ( Id.) Just over one month later, on or about November 28, 2012, the Village Attorney mailed the Holding Company a proposed contract for the sale of the Village property on which the Real Estate Project would be located. ( Id. ¶ 16.) At no point did Jasmin disclose her prior relationship with the CW, the UC, and the Straw Developers, or her financial interest in the Holding Company; Desmaret similarly failed to disclose that he had " received money in exchange for his vote." ( Id. ¶ 15.)
On or about February 25, 2013, Jasmin met with the CW, again at a hotel in Suffern, and " agreed to use her office" as Mayor and a member of the Board " to assist in obtaining for the Holding Company a contract" for road work associated with the Real Estate Project, as well as $500,000 in related New York State funding. ( Id. ¶ 18.) On or about March 6, 2013, Desmaret also met with the CW at a hotel in Suffern, and agreed to use his office as Deputy Mayor and a member of the Board to assist the Holding Company in obtaining the same, in exchange for which he received $500. ( Id.) But this was not the only cash payment that Desmaret received from the CW in exchange for supporting the Real Estate Project; according to the Indictment, in addition to the initial $5,000 payment that he received on February 28, 2012, and the $500 payment that he received on March 6, 2013, both of which are described above, he also received payments in the following amounts, on or about the following dates, and in the following locations: $1,000 on April 27, 2012, in Suffern; $1,600 on August 9, 2012, in Suffern; $500 on October 23, 2012, in White Plains; $1,000 on December 12, 2012, in Suffern; and $900 on January 22, 2013, in Suffern. ( Id. ¶ 19.)
2. The New York City Council Consulting Contract Bribe Scheme
The Government alleges that the " New York City Council Consulting Contract Bribe Scheme" involved Defendant Daniel Halloran (" Halloran" ), who at all relevant times was a member of the New York City Council (" City Council" ), representing the
19th Council District in Queens, New York; the CW; and the UC. ( Id. ¶ ¶ 2, 20-25.)
This alleged scheme was hatched at a Manhattan restaurant, where Halloran and the CW met on or about September 7, 2012. ( Id. ¶ 20.) Halloran explained to the CW that he was " seeking matching funds for his congressional campaign from the national Republican Party." ( Id.) The CW offered to give Halloran money for his campaign, and later asked Halloran if he could " obtain discretionary funding from the City Council budget for the CW . . . ." ( Id.) Halloran said that he could, listed " various projects that he funds through City Council discretionary funding," and then stated, " So now you come in and tell me what we got to do. Not an issue, not an issue." ( Id.) Halloran also described " politics" as being " [n]ot about whether or will," but " how much." ( Id.) He continued, " [T]hat's our politicians in New York, they're all like that . . . . And they get like that because of the drive that the money does for everything else. You can't do anything without the fucking money." ( Id.) After the CW paid Halloran $7,500 in cash, Halloran remarked, " Money is what greases the wheels--good, bad, or indifferent." ( Id.)
Twenty days later, on or about September 27, 2012, Halloran and the CW met again, this time at a Manhattan hotel and with the UC in attendance. ( Id. ¶ 21.) " [T]he UC gave Halloran $6,500 in checks made payable to his congressional campaign that were issued on the accounts of other individuals." ( Id.) In response to the CW's request for $20,000 from City Council discretionary funds, Halloran replied, " Absolutely, that's easy, that's not even an issue . . . . I might even be able to get you more." ( Id.) Halloran then requested that the CW " provide him with a tax identification number, the name and address of a corporation, and an application for discretionary funding," which Halloran said that he wanted " so that there's no questions, it raises no flags, and everybody's got it like it's gotta be. You do it the right way, not a problem, then you will definitely have . . . my member item." ( Id.) Afterwards, Halloran, the CW, and the UC raised their glasses, at which point the CW said, " Pleasure doing business with you." ( Id.)
Approximately three weeks after this toast, on or about October 18, 2012, the trio reunited at a restaurant in Queens, where Halloran " suggested . . . that [he] give discretionary money from the City Council to the UC and the CW by granting them a contract to perform consulting work on a senior center in Queens" (" the Senior Center Project" ). ( Id. ¶ 22.) The UC communicated that he " did not intend to do any work on [the Senior Center Project]" --rather, he was seeking " basically a no show" job. ( Id.) Halloran indicated that the Senior Center Project " might provide what the UC was looking for." ( Id.) At some point during this meeting, the UC paid Halloran $800 in cash. ( Id.)
Halloran followed up five days later, on or about October 23, 2012, emailing to the same Holding Company created at Jasmin's behest " a letter on . . . City Council letterhead . . . stating that [he] would allocate . . . discretionary funding up to $80,000 for the Senior Center Project." ( Id. ¶ 23.) He sent text messages to the CW requesting at least $20,000 from the CW and the UC the same day. ( Id.) Just over two weeks after that, on or about November 11, 2012, he emailed another letter to the Holding Company, also on City Council letterhead, " requesting that the Holding Company consult on the Senior Center Project," specifying that he would " allocate up to $80,000 in . . . discretionary funding for the Holding Company's
work on the project." ( Id. ¶ 24.) In other words, the Indictment suggests that Halloran planned to allocate $80,000 of City Council discretionary funding to the Senior Center Project, all of which would be paid to the Holding Company for its consulting work on the Project--work which the UC, as a representative of the Holding Company, had indicated that he had no intention of completing.
Just as was the case with Desmaret, the Indictment contains allegations that Halloran accepted payments in addition to the $7,500; $6,500; and $800 payments described above, including cash payments in the following amounts, on or about the following dates, and in the following locations: $10,000 on November 16, 2012, in Queens; $5,000 on January 25, 2013, in Manhattan; $500 on February 10, 2013, in Manhattan; and $15,000 on February 15, 2013, in Manhattan. ( Id. ¶ 25.)
3. The Conspiracy To Bribe New York City Political Party Officials
" The Conspiracy To Bribe New York City Political Party Officials" comes last in the Indictment. It allegedly involved several of the individuals who played a role in either the Spring Valley Real Estate Project Scheme, the New York City Council Consulting Contract Bribe Scheme, or both, including Halloran, the CW, and the UC, as well as several individuals with less direct connections to those schemes. ( Id. ¶ ¶ 26-56.) In order of appearance in the Indictment, they are Smith, who was at all relevant times a Democratic member of the New York State Senate (" the State Senate" ) and Chairman of the Independent Democratic Conference; an unnamed Republican Party county committee chairman from one of the five counties that make up the City of New York (" County Chairman #1" ); Defendant Joseph J. Savino (" Savino" ), who was at all relevant times Chairman of the Bronx County Republican Party; Defendant Vincent Tabone (" Tabone" ), who was at all relevant times Vice Chairman of the Queens County Republican Party; a fourth undercover FBI agent (" the UC-2" ), posing as a courier for the UC; and an unnamed New York State Senator, whose district encompassed the Village (" the Spring Valley State Senator" ). ( Id. ¶ ¶ 1, 3, 26-56.)
Following the pattern set by the first two schemes, this conspiracy also allegedly began at a restaurant. On or about April 26, 2012, Smith and the CW met at a restaurant in Rockland County, where Smith solicited a $10,000 contribution to his State Senate campaign, " discussed the CW giving [him] an additional $100,000 for [him] to give to other State Senators in an effort to win their support . . . for a State Senate leadership position," and assented to the CW's proposed plan to " give money to an associate of the CW who . . . would give the money to other people who would donate it to Smith's campaign in order to keep the CW's name off of Smith's campaign finance disclosures." ( Id. ¶ 26.) Smith also mentioned that he was " considering running for New York City Mayor in 2013 on the Republican Party ballot." ( Id.) As a registered Democrat, " Smith was not permitted to run for . . . Mayor as a Republican absent the written consent of three of the City's five Republican Party county chairman," a requirement mandated by New York Election Law § 6-120(3). ( Id. ¶ 1.) When granted, this consent " is commonly referred to as a 'Wilson Pakula certificate.'" ( Id.)
Smith and the CW returned to the same restaurant about three-and-a-half months later, on or about August 8, 2012. ( Id. ¶ 27.) During this meeting, " the CW gave Smith $15,000 worth of checks made out to Smith's campaign drawn on the accounts of various persons," telling Smith " that the money came from the CW but that the CW
was providing the money through other people." ( Id.) The CW then restated his concern that his name not appear on any campaign finance disclosure statements; in keeping with this request, " Smith later disclosed the checks on his campaign finance filings as contributions from the people whose names appeared on the checks," not from the CW. ( Id.) Returning to the theme of his contemplated mayoral run, Smith also told the CW that " he was meeting with the five New York City Republican Party county committee leaders the following week to discuss obtaining a Wilson Pakula certificate from each." ( Id.)
Two weeks later, on or about August 22, 2012, the two met again, at a hotel in Manhattan. ( Id. ¶ 28.) They " discussed ways for Smith to provide funding to the Real Estate Project" at the center of the Spring Valley Real Estate Project Scheme. ( Id.) Smith asked the CW if the Real Estate Project was " a religious thing, because that kind of ties their hands a little bit." ( Id.) When the CW asked if " it [was] better if it's religious," Smith replied that it was not, to which the CW replied, " Then it's not." ( Id.) They also discussed " possible sources of state money," with Smith noting that there " are monies that can be redirected" for roads and infrastructure after the CW " suggested widening a road in front of the Real Estate Project." ( Id.)
On or about November 16, 2012, Smith and the CW revisited Smith's mayoral designs. ( Id. ¶ 29.) During a meeting with the CW and the UC at a White Plains hotel, Smith told the CW that County Chairman #1 " was supporting someone else." ( Id.) After the CW suggested that he might be able to influence County Chairman #1, Smith responded, " If you can change him, call me. Seriously." He continued, " I need you to make that phone call . . . . If you can change him that would be huge." He added, " If you can switch him . . . that would be huge." ( Id.) Later on that same day, the UC met with Halloran in Queens, who said that he knew County Chairman #1 well, and that " he could find out what it would take to obtain [his] support" for a mayoral candidate. ( Id. ¶ 30.) " The UC and Halloran also discussed Halloran contacting Savino for the same purpose." ( Id. ¶ 30.)
Still on the same day, the UC met with Smith again at a Manhattan hotel and reported on his earlier discussion with Halloran. ( Id. ¶ 31.) In reference to County Chairman #1, Smith said that he " want[ed] him done," and that he wanted him to say, " You know what, Malcolm, we did make a commitment to you early on . . . . We're going back to that." ( Id.) When the UC asked Smith if securing the support of County Chairman #1 was a " small thing," or " worth going to the bank [for]," Smith replied, " This is a big thing." ( Id.) A similar discussion between Smith and the CW followed on or about January 25, 2013, in Rockland County, during which the CW told Smith that obtaining the Republican Party county committee leaders' support for his candidacy would cost " a pretty penny," and asked, " It's worth any price?" ( Id. ¶ 32.) Smith cautioned the CW to talk to him before he " close[d] it," but reiterated that " it's worth it," because the CW " [knew] how big a deal it [was]." ( Id.)
Also on or about January 25, 2013, the UC-2, " posing as a courier for the UC," met with Halloran in Manhattan to deliver $5,000 in cash in exchange for Halloran's agreement to arrange meetings with Savino and Tabone, in furtherance of securing their support for the Wilson Pakula certificates that Smith was seeking. ( Id. ¶ 33.) The next week, on or about January 31, 2013, Halloran and the UC met at a Queens restaurant " to discuss making payments
to [Tabone] and [Savino]," with Halloran telling the UC that Tabone wanted $100,000 for himself and $50,000 for the Queens County Republican Party, while Savino " would need to be paid only $15,000 or $20,000." ( Id. ¶ 34.)
Halloran arranged a meeting between himself, the UC, and Savino at a restaurant in Manhattan on or about the next day, February 1, 2013. ( Id. ¶ 35.) The three of them " discussed getting [Smith] on the Republican ballot as a [mayoral] candidate," with Savino telling the UC that if the UC purchased insurance from Savino's insurance agency or sent work to Savino's law firm, it would make things " very easy," also mentioning that " everybody needs to pay their mortgage." ( Id. ¶ 35.) Halloran arranged another Manhattan meeting for later on the same day for himself, the UC, and Tabone, where they " discussed the possibility of Tabone obtaining a Wilson Pakula certificate for Smith." ( Id. ¶ 36.)
On or about February 5, 2013, Halloran spoke with the UC by telephone, reporting that he had spoken with Tabone and Savino, who had " agreed to do what [Halloran had] asked them [to do]." ( Id. ¶ 37.) Three days after that, on or about February 8, 2013, Halloran met with the CW and the UC in Manhattan, and gave them the following instructions: " So, look, you gotta . . . get [Savino] business but put twenty-five in an envelope . . . . [Tabone] is twenty-five up front, twenty-five when the Wilson Pakula is delivered." ( Id. ¶ 38.) Tabone no longer " care[d] about [the Queens County Republican Party] getting anything . . . ." ( Id.)
On or about February 10, 2013, it was Smith's turn to meet with the UC and the CW. ( Id. ¶ 39.) In a hotel room in Manhattan, the UC told Smith that they " had all five" county committee leaders, and that Halloran had been " the one to make this whole thing happen." ( Id.) The UC told Smith that he had " a number from every one of them," and that the total amount of money that Smith would have to pay out for their support would fall in the range of $200,000. ( Id.) The CW also referenced the " financial needs" of the committee leaders who would be paid, which included " college tuition for one committee leader and mortgage payments for another." ( Id. ¶ 40.) Smith acknowledged that there was " no question" that there had " been movement," referencing " [t]he conversations and the calls . . . that [Smith had] gotten from [the committee leaders] . . . ." ( Id.) When the CW said that the committee leaders now wanted to support Smith, Smith said, " Oh, yeah." ( Id.) They also " discussed the possibility of a prominent person endorsing" Smith. ( Id. ¶ 43.) The CW told Smith that he " could deliver" the endorsement for the " right amount," to which Smith responded, " That's the one we need to do." ( Id.)
During the same conversation, Smith, the UC, and the CW fleshed out the specifics of their plan, which included making " an appropriate payment to [Tabone], whose support Smith thought was particularly important." ( Id. ¶ 39.) They also discussed directing the payments to the committee leaders personally, instead of to the Republican Party; as the UC put it, he had " gone away from giving some donations to parties," as he " didn't want to get involved with that mess." ( Id. ¶ 40; see also id . ¶ 39.) The UC also described to Smith how the UC was going to pay the committee leaders so that there were " no ties" to him, stating that he and the committee leaders were " going to go play golf somewhere, and [the committee leaders'] . . . golf bag[s] [would] be a little heavier when [they] . . . [left] the course." ( Id. ¶ 40.) The UC also suggested that he might " lose a couple of bets" to the committee
leaders, or that they would " go to Vegas, and . . . cash in some chips, whatever. An envelope, you know?" ( Id.) Smith later " suggested that the payments be made via retainer agreements between the committee leaders and the UC, leaving no connection to Smith." ( Id. ¶ 42.) The UC emphasized that he did not want any " written contracts to tie the UC and the committee leaders together," after which Smith proposed that the retainer agreements could be done " on a handshake." ( Id. ¶ 42.)
The UC and Smith also discussed the importance of making only partial payments to the committee leaders at first, to ensure that they made good on their Wilson Pakula promises. ( Id. ¶ 39.) The UC told Smith that the payments would be " half up front," and the " other half" after the committee leaders " deliver[ed]." ( Id. ¶ 41.) Smith weighed in, warning that he " wouldn't give them more than like ten . . . just to start out . . . ." ( Id.) When Smith suggested " hav[ing] them sign a piece of paper or something," the UC responded, " No, no, I'm not signing anything," to which Smith replied, " That's true, you don't want to do that." ( Id. ¶ 42.) After discussing the payments to the party committee leaders, the CW and the UC also asked Smith " to direct $500,000 in New York State funding for improvement of a road that would benefit the Real Estate Project," a request Smith characterized as " doable." ( Id. ¶ 44.) Smith said that he would speak with the Spring Valley State Senator " to help get the funding allocated in the State budget." ( Id.) Later on the same day, the UC, the CW, and Smith met with Halloran. ( Id. ¶ 45.) Smith said to Halloran, " You've been busy," to which Halloran replied that it had been " a heavy lift." ( Id.) After this meeting, Halloran and the UC met to follow up, and " discussed scheduling meetings with [Tabone] and [Savino] for the purpose of making payments to them." ( Id. ¶ 46.) During this meeting, the UC paid Halloran $500 in cash. ( Id.)
The meeting with Savino happened four days later, on or about February 14, 2013, at a restaurant in Manhattan, with Halloran, the UC, and the CW also in attendance. ( Id. ¶ 47.) " At one point during the evening, the UC and [Savino] stepped outside . . . [and into] the UC's car," where the UC paid Savino $15,000 in cash. ( Id.) At this time, the UC and Savino " agreed that the UC would pay Savino an additional $15,000 after Savino signed a Wilson Pakula certificate for Smith." ( Id.) To facilitate this payment, Savino, who is a lawyer, " proposed that he send the UC a retainer agreement for $15,000 in legal services." ( Id.) The UC told Savino that if he needed " some bullshit number, or something, to call it," to just " invoice [him] for something," to which Savino responded, " Yeah, absolutely." ( Id.) Savino also informed the UC that another county chairman was on board, so they " already [had] two." ( Id.)
Later during that same evening, " the UC spoke separately with [Tabone] at the same restaurant in Manhattan," and suggested paying him " [t]wenty now, twenty later," to which Tabone responded, " I was thinking twenty-five now, twenty-five later." ( Id. ¶ 48.) Tabone also proposed sending the UC a retainer agreement for the money, but the UC said that rather than paying a lump sum retainer, " he would make an up-front payment and then pay the other 'half' later." ( Id.) Tabone stated that he was " making [a] commitment" to get Smith a Wilson Pakula certificate; when the UC questioned whether he could deliver, Tabone responded, " I run the Queens County Republican Party. Nobody else runs the party. I run the party." ( Id.) " During the conversation, Tabone frisked the UC in an apparent
effort to make sure that the UC was not recording their conversation." ( Id.) However, " [t]he UC was, in fact, recording the conversation." ( Id.) The UC eventually paid Tabone $25,000 in cash. ( Id. ¶ 49.) The next day, on or about February 15, 2013, the UC paid Halloran $15,000 in cash " in exchange for Halloran having arranged the meetings the day before with [Savino] and [Tabone]." ( Id. ¶ 50.)
On or about February 17, 2013, while the UC was in North Carolina, Smith and the UC discussed by telephone " how the UC should conduct a conversation with the Spring Valley State Senator about the Real Estate Project," and discussed " paying a bribe" to ensure the support of County Chairman #1. ( Id. ¶ 51.) Smith said that because he only needed three signatures to permit him to appear on the Republican Party ballot, and because County Chairman #1 would be the fourth chairman to sign a Wilson Pakula certificate, County Chairman #1 should receive " less" than Tabone and Savino, and that he should be told why this was so. ( Id.)
More than a month later, on or about March 21, 2013, Smith met with the UC and the CW in Smith's New York State Senate office in Albany, New York, where Smith " raised the subject of the $500,000 in state transportation funding that he had agreed to help the UC and the CW obtain" in connection with the Real Estate Project. ( Id. ¶ 52.) Smith expressed surprise that the UC and the CW had not " see[n]" the Spring Valley State Senator, and asked, " Why don't you use him up for your little road stuff. I bet ya he can." ( Id.) He also communicated that he thought that he had " found another place for him to do it, too" --" [o]ut of multi-modal money," which was " outside the budget" and " always around." ( Id.)
The three then discussed the county committee leaders. ( Id. ¶ 53.) The UC told Smith that the committee leaders were going to meet on April 3, " do their little kabuki dance," " discuss it," and that " they got a hundred thousand dollar reasons to come out and say hey, here we go." ( Id.) Smith asked the UC if he had " [given] it to them already," to which the UC replied that he had given them, " like we discussed--half." ( Id.) Discussing the possibility that the committee leaders might " screw" Smith and the UC, Smith said, " [W]hen you screw somebody over money like that . . . you're looking over your shoulder all the rest of your life . . . ." ( Id.) He continued, " And any time you do that, imagine you came to me and said, Malcolm, they screwed me. . . . I got them already asking me about judgeships, because you know judgeships now come through here, it comes through the governor." ( Id.) Smith also said that the committee leaders would be " screwed if they try to play the game and string it along." ( Id. ¶ 54.) When the UC mentioned that the " only thing" was that the committee leaders could " maybe" try to " shake" them down " for a little bit more," Smith responded that he " wouldn't do. [He] wouldn't touch 'em." ( Id.) Smith said that he would say, " I'm not giving you a freaking dime." ( Id.) If he " even gave" the committee leaders " a nickel more," they would " have to stand on the Empire State Building, and drop every person [they] endorsed, and hold Malcolm up and say he's the best thing since sliced bread. Matter of fact, he's better than sliced bread." ( Id.) The UC suggested that he
could tell the committee leaders that if they " want[ed] to up the ante a little bit on the back end," they would " have to do more." ( Id. ¶ 55.) Smith said, " Let's close the deal . . . . I wouldn't do anything with them until you close the first deal. I would close it first." ( Id.) After the UC referenced his own possible naï veté in this " back world," Smith replied, " Business is business. They understand." ( Id. ¶ 56.) The UC then explained that the committee leaders were " crying about what they [needed]," " all this stuff with . . . oh, I got a kid in college, I got debts . . . I got a vacation home." ( Id.) Smith replied, " You know what you do? Tell him . . . I got a kid in Albany that needs to be born. So, when you birth him, when you birth my child up in Albany, I'll . . . help you with your kid." ( Id.)
Approximately 11 days later, on April 1, 2013, the Government filed a sealed Complaint against Smith, Halloran, Tabone, Savino, Jasmin, and Desmaret. ( See Dkt. Nos. 1-2.) All six were arrested the following day. ( See Dkt. No. 5.)
B. Procedural Background
The Indictment that the Grand Jury returned on April 18, 2013, contains ten counts, only four of which are directly relevant to the instant Motions:
o Count One (New York City Political Party Official Bribery Conspiracy), which alleges that Smith, Halloran, Tabone, and Savino conspired to commit wire fraud and bribery in violation of 18 U.S.C. § § 1343, 1346, and 1952, in violation of 18 U.S.C. § 371, ( see Indictment ¶ ¶ 57-58);
o Count Two (Wire Fraud--New York City Political Party Officials), which alleges that Smith, Halloran, Tabone, and Savino, having devised and intending to devise a scheme and artifice to defraud, and to deprive New York City Republican Party county committees and members of the Republican Party of the honest services of leaders of such county committees, transmitted and caused to be transmitted telephone calls and text messages in interstate and foreign commerce for the purpose of executing such scheme and artifice, and attempting to do so, in violation of 18 U.S.C. § § 1343, 1346, 1349, and 2, ( see Indictment ¶ ¶ 62-65);
o Count Three (Travel and Use of Interstate Facilities to Commit Bribery--New York City Political Party Officials), which alleges that Smith, Halloran, Tabone, and Savino caused the UC to travel in interstate and foreign commerce and used and caused the use of the mail and facilities that transmitted telephone calls, text messages and emails, with intent to promote, manage, establish, carry on, and facilitate the promotion, management, establishment, and carrying on, of bribery in violation of New York Penal Law § § 200.45 and 200.50, and thereafter acted to promote, manage, establish, carry on and facilitate the promotion, management, establishment and carrying on of the unlawful activity, in violation of 18 U.S.C. § § 1952(a)(3) and 2, ( see Indictment ¶ ¶ 64-65); and
o Count Four (Hobbs Act Extortion--New York State Transportation Money), which alleges that Smith knowingly obstructed, delayed, and affected commerce and the movement of an article and commodity in commerce, by extortion, as that term is defined in 18 U.S.C. § 1951(b)(2), and attempted so to do, as the UC and the CW paid bribes on Smith's behalf to obtain for Smith approval
to run for New York City Mayor as a Republican in return for Smith using, and agreeing to use, his official position to help the UC and CW obtain New York State funds that would benefit the Real Estate Project, in violation of 18 U.S.C. § 1951, ( see Indictment ¶ ¶ 66-67).
Halloran was the first Defendant to file a Motion To Dismiss, on August 6, 2013. ( See Dkt. Nos. 79-81.) Smith was next, filing his Motion To Dismiss on September 3, 2013. ( See Dkt. Nos. 91-93.) Halloran then filed a Motion to Join Co-Defendants' Motions To Dismiss on September 6, 2013, ( see Dkt. No. 103), and Tabone filed his Motion To Dismiss on September 9, 2013, ( see Dkt. Nos. 105-09). Tabone and Halloran both filed Motions To Sever on September 20, 2013. ( See Dkt. Nos. 112-20.) The Government filed its Memorandum in Opposition to Defendants' Motions To Dismiss and Motions To Sever on October 7, 2013, ( see Dkt. No. 128), in response to which Smith, Tabone, and Halloran submitted Reply Memoranda on October 21, 2013, ( see Dkt. Nos. 142-45). The Court heard oral argument on Defendants' Motions on December 5, 2013. ( See Dkt. No. 164.)
A. Standard of Review
Defendants have brought their Motions To Dismiss on the grounds that the Court lacks jurisdiction as to certain counts, and that certain counts fail to state an offense. " [A]t any time while the case is pending," a defendant may move to dismiss an indictment on the grounds that it " fails to invoke the court's jurisdiction or to state an offense." Fed. R. Crim. P. 12(b)(3)(B); see also United States v. Litvak, No. 13-CR-19, 2013 WL 5740891, at *2 (D. Conn. Oct. 21, 2013) (same). " A defendant faces a high standard in seeking to dismiss an indictment, because an indictment need provide the defendant only a plain, concise, and definite written statement of the essential facts constituting the offense charged." United States v. Post, 950 F.Supp.2d 519, 527 (S.D.N.Y. 2013) (internal quotation marks and citations omitted) (citing Fed. R. Crim. P. 7(c)(1)) . " It bears recalling that [the Second Circuit has] consistently upheld indictments that do little more than to track the language of the statute charged and state the time and place (in approximate terms) of the alleged crime." United States v. Bout, 731 F.3d 233, 240 (2d Cir. 2013) (emphasis and internal quotation marks omitted). " The indictment is sufficient if it 'contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and . . . enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.'" Post, 950 F.Supp.2d at 527 (alteration in original) (quoting Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974)); see also United States v. Alfonso, 143 F.3d 772, 776 (2d Cir. 1998) (same). However, " [a] charge in an indictment is insufficient and must be dismissed when it does not describe conduct that is a violation of the criminal statute charged." Litvak, 2013 WL 5740891, at *2 (citing Russell v. United States, 369 U.S. 749, 764-65, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962); United States v. Pirro, 212 F.3d 86, 93 (2d Cir. 2000)); see also United States v. Aleynikov, 676 F.3d 71, 75-76 (2d Cir. 2012) (" Since federal crimes are solely creatures of statute, a federal indictment can be challenged on the ground that it fails to allege a crime within the terms of the applicable statute." (citations and internal quotation marks omitted)). Although a constitutional attack on an indictment technically may not be an argument that the indictment
" fails to invoke the court's jurisdiction or to state an offense," a court may still address such an argument within the context of a Rule 12(b)(3)(B) motion, " because an indictment's defects can affect a defendant's substantive rights at trial." Post, 950 F.Supp.2d at 527-28; see also United States v. Hashmi, No. 06-CR-442, 2009 WL 4042841, at *3, *6-7 (S.D.N.Y. Nov. 18, 2009) (considering defendant's argument that relevant statute was unconstitutionally vague alongside defendant's argument that indictment failed to allege essential elements of offense).
Defendants collectively raise a multitude of arguments as to why the Court should dismiss all or part of Counts One, Two, Three, and Four. Halloran argues that the Court should dismiss the portion of Count One charging a conspiracy to violate the Travel Act, as well as all of Count Three, which charges a substantive Travel Act violation, insofar as they depend on underlying violations of New York Penal Law § § 200.45 and 200.50, neither of which any Defendant could have violated as a matter of law based on the facts that the Government has alleged. ( See Def. Halloran's Mem. of Law in Supp. of His Mot. To Dismiss (" Halloran Mem." ) 2-25.) Tabone and Smith both make substantially similar arguments. ( See Def. Smith's Mem. of Law in Supp. of His Mot. to Dismiss (" Smith Mem." ) 19-28; Def. Tabone's Mem. in Supp. of His Mot. To Dismiss (" Tabone Mem." ) 3-15.)
Tabone also argues that the Court should dismiss the portion of Count One charging a conspiracy to violate 18 U.S.C. § 1343 (" the Wire Fraud Statute" ) and the Honest Services Fraud Statute, as well as all of Count Two, which charges a substantive violation of those statutes, for two reasons; first, because the Honest Services Fraud Statute is void for vagueness as applied to Defendants; and second, because he owed no fiduciary duty to the New York City Republican Party county committees or members of the Republican Party as a matter of law, which means that the Government failed to charge a crime within the statute's ambit. ( See Tabone Mem. 15-38.) In their Reply Memoranda, Halloran joins the second of these arguments, ( see Def. Halloran's Reply Mem. of Law in Supp. of His Mot. To Dismiss (" Halloran Reply Mem." ) 10-15), while Smith joins both, ( see Def. Smith's Reply Mem. of Law in Supp. of His Mot. To Dismiss (" Smith Reply Mem." ) 1-7).
Defendants also raise several additional arguments for dismissal, which are subsidiary to those described above only to the extent that Defendants have devoted significantly less briefing space to their development. Tabone argues that the portion of Count One charging honest-services-wire-fraud conspiracy, and all of Count Two, which charges substantive honest-services wire fraud, should be dismissed because they do not plead with sufficient particularity the charges against him, in violation of the Fifth and Sixth Amendments. (Tabone Mem. 38-39.) Smith argues that the portion of Count One charging a Travel Act conspiracy, and all of Count Three, which charges a substantive Travel Act violation, should be dismissed for lack of federal jurisdiction, ( see Smith Mem. 28-33); that Count Four, which charges a substantive violation of 18 U.S.C. § 1951 (" the Hobbs Act" ), should be dismissed for failure to allege inducement, ( see id. at 33-37); and that portions of paragraphs 26 and 27 of the Indictment should be stricken as prejudicial surplusage, ( see id. at 37-40). The Court will address each argument in turn.
1. Failure To State a Travel Act Predicate Offense
All three moving Defendants seek dismissal of the conspiracy and substantive Travel Act violations charged in Counts One and Three. The Travel Act provides in relevant part that, " [w]hoever travels in interstate or foreign commerce or uses the mail or any facility in interstate or foreign commerce, with [the] intent to . . . promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity, and [who] thereafter performs or attempts to perform" such activity, shall be guilty. 18 U.S.C. § 1952(a)(3)(A). The statute defines " unlawful activity" in pertinent part as " bribery . . . in violation of the laws of the State in which committed . . . ." Id. § (b)(i)(2). Where the Government charges Travel Act violations in reliance on underlying violations of state bribery laws, " the indictment must simply allege a predicate act which would violate state [bribery] law[s], and then the Government must prove at trial that such activity was unlawful under state [bribery] law[s]." United States v. Giampa, No. 92-CR-437, 1992 WL 322028, at *5 (S.D.N.Y. Oct. 29, 1992) (emphasis added); see also United States v. Salameh, 152 F.3d 88, 152 (2d Cir. 1998) (" [T]he initial inquiry in a Travel Act case is whether the underlying activity violates a state law." (internal quotation marks omitted)).
Here, the Travel Act charges are predicated on Defendants' alleged violation of New York Penal Law Sections 200.45 and 200.50, which read as follows:
A person is guilty of bribe giving for public office when he confers, or offers or agrees to confer, any money or other property upon a public servant or a party officer upon an agreement or understanding that some person will or may be appointed to a public office or designated or nominated as a candidate for public office.
N.Y. Penal Law § 200.45.
A public servant or a party officer is guilty of bribe receiving for public office when he solicits, accepts or agrees to accept any money or other property
from another person upon an agreement or understanding that some person will or may be appointed to a public office or designated or nominated as a candidate for public office.
Id . § 200.50.
The Government's theory is fairly straightforward. As described above, because Smith was a registered Democrat, New York state election law did not permit him to " run for Mayor as a Republican absent the written consent of three of the City's five Republican Party county chairmen." (Indictment ¶ 1.) This written consent " is commonly referred to as a 'Wilson Pakula certificate.'" ( Id.) The Government alleges that " Smith agreed with . . . Halloran, [the UC], and [the CW] to bribe [Tabone and Savino]," respectively the Vice Chairman of the Queens County Republican Party and the Chairman of the Bronx County Republican Party, " in exchange for [their] authorization for Smith to appear on the 2013 New York City mayoral ballot as a Republican candidate . . . ." (Government's Mem. of Law in Opp. to Defs.' Pretrial Mots. (" Government Mem." ) 3.) Under these facts, Smith and Halloran committed " bribe giving for public office" under § 200.45, because they " confer[red] . . . money . . . upon a . . . party officer upon an agreement or understanding that some person will or may be appointed to a public office or designated or nominated as a candidate for public office," while Tabone and Savino commited " bribe receiving for public office" under § 200.50 because they " accept[ed] . . . money . . . from another person upon an agreement or understanding that some person will or may be appointed to a public office or designated or nominated as a candidate for public office."
The requirement that an aspirant to the Mayor's office such as Smith obtain a Wilson Pakula certificate before being allowed to run on another party's ballot is derived from New York Election Law § 6-120, which reads in part as follows:
1. A petition, except as otherwise herein provided, for the purpose of designating any person as a candidate for party nomination at a primary election shall be valid only if the person so designated is an enrolled member of the party referred to in said designating petition at the time of the filing of the petition.
2. Except as provided in subdivisions three and four of this section, no party designation or nomination shall be valid unless the person so designated or nominated shall be an enrolled member of the political party referred to in the certificate of designation or nomination at the time of filing of such certificate.
3. The members of the party committee representing the political subdivision of the office for which a designation or nomination is to be made . . . may, by a majority vote of those present at such meeting provided a quorum is present, authorize the designation or nomination of a person as candidate for any office who is not enrolled as a member of such party as provided in this section. In the event that such designation or nomination is for an office to be filled by all the voters of the city of New York, such authorization must be by a majority vote of those present at a joint meeting of the executive committees of each of the county committees of the party within the city of New York, provided a quorum is present at such meeting.
N.Y. Elec. Law § 6-120.
Defendants argue that the Travel Act counts must be ...