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United States v. Boyland

United States Court of Appeals, Second Circuit

July 10, 2017

UNITED STATES OF AMERICA, Appellee,
v.
WILLIAM F. BOYLAND, JR., Defendant-Appellant.[*]

          Argued: February 22, 2017

         Appeal from a judgment of the United States District Court for the Eastern District of New York, Sandra L. Townes, Judge, convicting defendant on 21 counts of public-corruption-related offenses, see 18 U.S.C. §§ 371, 666, 1343, 1349, 1951(a), and sentencing him principally to 168 months' imprisonment, to be followed by a three-year term of supervised release, and ordering him to forfeit $169, 410.14 and pay $155, 610.14 in restitution. On appeal, defendant challenges his conviction, contending primarily that the jury instructions with respect to 19 of his counts of conviction were erroneous in light of the Supreme Court's subsequent decision in McDonnell v. United States, 136 S.Ct. 2355 (2016), which narrowed the interpretation of "official act" within the meaning of the federal bribery statute, 18 U.S.C. § 201(a)(3), as effectively incorporated in sections prohibiting quid pro quo corruption. The government concedes that, in light of McDonnell, the district court's instructions on 11 honest-services wire fraud counts were erroneous. We conclude that those instructions, to which defendant did not object at trial, do not meet the "plain error" standard; and we find no basis for reversal in defendant's other contentions.

         Affirmed.

          LAN X. NGUYEN, Assistant United States Attorney, Brooklyn, New York (Robert L. Capers, United States Attorney for the Eastern District of New York, Amy Busa, Assistant United States Attorney, Brooklyn, New York, on the brief), for Appellee.

          JAMES M. BRANDEN, New York, New York, for Defendant-Appellant.

          Before: KEARSE, WALKER, and HALL, Circuit Judges.

          KEARSE, Circuit Judge.

         Defendant William F. Boyland, Jr. ("Boyland"), appeals from a judgment entered in the United States District Court for the Eastern District of New York following a jury trial before Sandra L. Townes, Judge, convicting him on 21 counts of public-corruption-related offenses, to wit: Hobbs Act extortion conspiracy and attempted extortion, in violation of 18 U.S.C. § 1951(a) (Counts One, Two, Sixteen, and Eighteen), conspiracy to commit bribery and to violate the Travel Act, in violation of id. § 371 (Counts Three and Seventeen), bribery in violation of id. § 666(a)(1)(B) (Counts Four and Nineteen), honest-services wire fraud conspiracy and honest-services mail fraud conspiracy, in violation of id. § 1349 (Counts Five and Twenty-One), 10 counts of honest-services wire fraud, in violation of id. § 1343 (Counts Six-Fifteen), and theft of government property in violation of id. § 666(a)(1)(A) (Count Twenty). He was sentenced principally to 168 months' imprisonment, to be followed by a three-year term of supervised release, and was ordered to forfeit $169, 410.14 and to pay $155, 610.14 in restitution.

         On appeal, Boyland challenges his conviction, contending primarily that the jury instructions with respect to Counts One through Nineteen were erroneous in light of McDonnell v. United States, 136 S.Ct. 2355 (2016), which narrowed the interpretation of "official act" within the meaning of the federal bribery statute, 18 U.S.C. § 201(a)(3), as effectively incorporated in sections prohibiting quid pro quo corruption. He also argues that certain evidence was improperly admitted at trial. The government concedes that, in light of McDonnell, the instructions on Counts Five through Fifteen, the honest-services wire fraud counts, were erroneous. For the reasons that follow, we conclude that the trial court's instructions on Counts Three, Four, Seventeen, and Nineteen through Twenty One were not erroneous; that the instructions on the Hobbs Act and honest-services wire fraud counts, to which defendant did not object at trial, do not meet the "plain error" standard; and that Boyland's other contentions provide no basis for reversal.

         I. BACKGROUND

         At the times pertinent to this prosecution, Boyland was an elected member of the New York State Assembly, representing the 55th Assembly District, an area that includes the Brownsville, Bedford-Stuyvesant, Crown Heights, and Bushwick sections of Brooklyn. In the 21-count superseding indictment (the "Indictment") Boyland was charged principally with engaging in honest-services wire fraud, in schemes to, inter alia, solicit bribes in connection with a proposed carnival and in connection with a proposed real estate venture for which New York State ("State") grant monies were to be obtained.

         The government's evidence at Boyland's several-week trial, the sufficiency of which is not challenged on appeal, included numerous audio and video recordings--the accuracy of which was stipulated (see Trial Transcript ("Tr.") 87-91)--as well as emails and documents; testimony by Federal Bureau of Investigation ("FBI") special agents Brian Getson and Sean Quinn, who operated undercover in meeting with Boyland and his aides in connection with schemes through which Boyland and the undercover agents were to receive New York City ("City") permits or State monies; testimony by numerous other witnesses as to the precise mechanics of those schemes; and testimony by Ry-Ann Hermon, Boyland's then-chief of staff who, prior to Boyland's trial, had pleaded guilty to bribery and extortion charges. The trial evidence, taken in the light most favorable to the government, included the following.

         A. The Evidence

         Getson testified that in August 2010, Alan Weiner--a carnival promoter who had passed away before Boyland's trial, but who in 2010-2011 was working with the government after pleading guilty to charges relating to bribing public officials--contacted Boyland, with whom he had had a relationship for several years, and offered Boyland money in exchange for helping to secure permits for a carnival to be held in Boyland's Brooklyn assembly district. (See Tr. 77-78.) Getson testified (without objection) that he learned that "Boyland responded that, " "[i]n exchange for his assistance getting carnivals in the assembly district, " "he would be willing to take money from a nonprofit" corporation. (Id. at 78.)

         Weiner thereafter introduced Boyland to Getson, who was posing as a Philadelphia promoter of carnivals and real estate businesses who was willing to pay bribes as a means of doing business. All of the meetings Getson had with Boyland and/or his representatives were recorded. (See id. at 85.)

         1. The Carnival Scheme

         In order to operate a carnival on City-owned property, an owner must obtain various licenses and permits from the relevant City agencies. Getson was introduced to Boyland by Weiner in August 2010 at Boyland's district office, and the three discussed the process of "secur[ing] the property" (Government Exhibit ("GX") T-301, at 3) on which Getson and Weiner claimed to want to hold a carnival--a site on Rockaway Avenue in Brownsville--meaning obtaining the necessary permits for that property.

         City agency approval is facilitated by letters of support from local elected officials. At that meeting, Boyland stated he would "have this thing locked up" and "have the okays done . . . by early next week" (id. at 4), as the Rockaway property was owned by the City; Getson testified he understood this to mean that Boyland would "get the okays" from "whatever city agencies would have control over that property at Rockaway" (Tr. 101).

         In October 2010, Getson, Boyland, and Weiner had a dinner meeting. Boyland indicated that approval would be forthcoming from the City's Department of Housing Preservation and Development ("HPD"), a relevant agency that had not been identified at their prior meeting. (See Tr. 108-10.) Boyland said, "So guys, how do we do business? What's our next steps here? . . . . How do we do business? What's our next steps here? . . . . 'Cause we got HPD. HPD is locked up. We're there." (GX T-302, at 1.)

         Later in the conversation, Boyland said he would be running for reelection in 2012 (id. at 15-16), and Weiner responded, "Obviously, obviously you will get support from us" (id. at 16), leading to the following colloquy:

[Boyland]: Yeah? We are just in a money raising mode right now.
[Getson]: What can we do for you in that regard?
[Boyland]: Well I'll get you something. We're just in this ... I've got something coming on the 28th. It's a ... We gotta ... On this end, it is not a big deal. We have about a 100 grand we have to have in the pot. You know that is just to sustain ourselves and help others around us because that is the name of the game, of course, and, um, building. We will have all kinds of conversations about it but that is the number at this point.

(Id.)

         Boyland stated that he had found it more profitable to have fundraisers at small private venues and "we are having something on the 28th. I'll send you an invite. You get your network to come out and support it or whatever." (Id. at 16-17.) Getson testified that he asked whether Boyland had any type of non-profit organization set up, and Boyland responded that he had four. Getson then talked about compensating Boyland, "directly paying him for his assistance in helping us with the carnivals, " and that "Boyland's idea was some kind of consultancy or consulting agreement" (Tr. 126-27):

[Getson]: What are, what are, so what are like in terms of like can I compensate you or whatever for helping us out or setting up the meetings for us what is the best kind of approach?
[Boyland]: Um, a consultancy, a consulting firm, folks we have worked with in the past. You know?
[Getson]: Yeah?
[Boyland]: You will be introduced to ...

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