United States v. Skelos ( 2021 )

18-3421 (L)
United States v. Skelos
In the
United States Court of Appeals
For the Second Circuit
________
AUGUST TERM, 2019
ARGUED: FEBRUARY 13, 2020
DECIDED: FEBRUARY 23, 2021
Nos. 18-3421-cr, 18-3442-cr
UNITED STATES OF AMERICA,
Appellee,
v.
DEAN SKELOS, ADAM SKELOS,
Defendants-Appellants.
________
On Appeal from the United States District Court
for the Southern District of New York.
________
Before: WALKER, SACK *, AND CARNEY, Circuit Judges.
________
* Circuit Judge Ralph K. Winter, originally a member of this panel, died on December 8,
2020. Circuit Judge Robert D. Sack has replaced Judge Winter on the panel for this matter. See
2d Cir. IOP E(b).
2 Nos. 18-3421, 18-3442
Defendants-Appellants Dean and Adam Skelos, father and son, appeal from
their convictions on multiple public corruption charges entered in the United
States District Court for the Southern District of New York (Kimba Wood, J.). Dean
and Adam Skelos primarily challenge the government’s reliance on the “as
opportunities arise” theory of bribery and the district court’s related jury
instructions. They also challenge the appropriateness of the Southern District of
New York as a venue, whether one of their statutes of conviction, 18 U.S.C. § 666,
permits conviction for the acceptance of gratuities, the district court’s decision to
quash certain subpoenas, and the district court’s denial of an evidentiary hearing
to explore alleged government leaks of grand jury information. Adam Skelos
separately argues that certain evidence was unduly prejudicial and that there was
insufficient evidence to convict him on certain public corruption charges because
he lacked knowledge of the specific official acts that Dean Skelos allegedly
promised in exchange for benefits to Adam Skelos. We conclude that Dean and
Adam Skelos’s arguments are without merit. Accordingly, we AFFIRM the
judgments of conviction in their entirety.
________
ALEXANDRA A.E. SHAPIRO, (Fabien M. Thayamballi, on the brief),
Shapiro Arato Bach LLP, New York, NY, for Defendant-Appellant
Dean Skelos.
Theodore Sampsell-Jones (on the brief), Mitchell Hamline School
of Law, St. Paul, MN, for Defendant-Appellant Dean Skelos.
3 Nos. 18-3421, 18-3442
JOHN J. KENNEY, (Julian S. Brod, Allison N. Angel, on the brief),
Hoguet Newman Regal & Kenney, LLP, New York, NY, for
Defendant-Appellant Adam Skelos.
THOMAS MCKAY, (Edward Diskant, Douglas Zolkind, Won S.
Shin, on the brief), Assistant United States Attorneys, for Audrey
Strauss, United States Attorney for the Southern District of
New York, for Appellee.
________
JOHN M. WALKER, JR., Circuit Judge:
Defendants-Appellants Dean and Adam Skelos, father and son, appeal from
their convictions on multiple public corruption charges entered in the United
States District Court for the Southern District of New York (Kimba Wood, J.). Dean
and Adam Skelos primarily challenge the government’s reliance on the “as
opportunities arise” theory of bribery and the district court’s related jury
instructions. They also challenge the appropriateness of the Southern District of
New York as a venue, whether one of their statutes of conviction, 18 U.S.C. § 666,
permits conviction for the acceptance of gratuities, the district court’s decision to
quash certain subpoenas, and the district court’s denial of an evidentiary hearing
to explore alleged government leaks of grand jury information. Adam Skelos
separately argues that certain evidence was unduly prejudicial and that there was
insufficient evidence to convict him on certain public corruption charges because
he lacked knowledge of the specific official acts that Dean Skelos allegedly
promised in exchange for benefits to Adam Skelos. We conclude that Dean and
Adam Skelos’s arguments are without merit. Accordingly, we AFFIRM the
judgments of conviction in their entirety.
4 Nos. 18-3421, 18-3442
BACKGROUND
The factual background of this appeal, as presented at the second trial, is
essentially undisputed. From 2011 to 2015, Dean Skelos, a Republican senator
from Nassau County, was the Majority Leader of the New York State Senate.
Among other things, the Majority Leader is responsible for making decisions on
Senate committee memberships and chairmanships, advancing bills out of
committees, determining the bills that make it to the Senate floor for a vote, and,
along with the Speaker of the Assembly and the Governor, developing the New
York State budget. As Majority Leader, Dean Skelos was highly influential in his
home district because the state government provides financial assistance to
counties and must approve certain county-level actions, such as modifications of
tax laws. Relevant to this appeal, Adam Skelos is the adult son of Dean Skelos. 1
The Glenwood Scheme
In late 2010, while serving in the New York State Senate but before he
assumed his position as Majority Leader, Dean Skelos attended a meeting at
Glenwood Management, a New York-based real estate company. At that meeting,
Glenwood’s founder Leonard Litwin and Glenwood General Counsel Charles
Dorego discussed with Skelos rent regulation legislation, including the Senate’s
periodic renewal of Section 421-a, a state tax abatement. Section 421-a was critical
to Glenwood’s business, and Glenwood personnel lobbied extensively to ensure
that the provision remained in effect. Glenwood personnel understood that
Section 421-a could be changed in ways that would affect Glenwood’s business.
Skelos assured those present that the Section 421-a renewal would easily pass the
Senate. At the conclusion of the meeting, Skelos asked Litwin and Dorego if they
Throughout this opinion, we also will refer to Dean Skelos as Skelos and Adam Skelos
1
as Adam.
5 Nos. 18-3421, 18-3442
could help Adam break into the title insurance business by “throw[ing] some title
work his way.” 2 Litwin sent Dorego to meet with Adam, but Dorego did not offer
any work or compensation to Adam following the meeting.
In March 2011, Dean Skelos met again with Glenwood personnel and, this
time, with representatives of the Rent Stabilization Association (RSA), a trade
organization of residential landlords. Those at the meeting discussed renewals of
rent regulations and Section 421-a, including possible changes to these laws. At
the end of the meeting, Skelos again asked Litwin and Dorego if they could find
some title insurance work for Adam. Litwin again asked Dorego to meet with
Adam, and Dorego scheduled a meeting for May 6, 2011.
On May 5, 2011, the day before Dorego’s meeting with Adam, Glenwood
personnel met with Skelos to discuss competing positions surrounding the rent
regulation and Section 421-a renewals. At the end of that meeting, Dorego told
Skelos that Dorego would find a job for Adam with AbTech Industries, an
environmental technology company that specializes in supporting counties’ water
treatment plants. Dean Skelos thanked Dorego for seeing Adam. The next day, at
his meeting with Adam, Dorego offered to find a job for Adam with AbTech, in
which Litwin’s family and Dorego were stockholders and where Dorego had
connections.
In June 2011, Dorego travelled to Albany to meet with Skelos at the end of
the legislative session, when the rent regulation and Section 421-a legislation was
being finalized. Outside his office, Skelos told Dorego that Section 421-a was going
to be fine but that Adam starting with AbTech was going to take a long time.
Skelos asked Dorego to find Adam other work in the meantime. Skelos later called
2 App. at 4379.
6 Nos. 18-3421, 18-3442
Dorego to let him know that Section 421-a was extended and that the rent
regulations were being renewed in a way that would be favorable to Glenwood.
Skelos asked Dorego to provide work for Adam on five more occasions, one
of which followed a meeting explicitly about rent regulations. On another
occasion, after receiving an email from Adam complaining that Dorego had not
found title insurance work for him, Skelos called Glenwood’s chief lobbyist to
make it clear that he really wanted Dorego to find title insurance work for Adam.
At trial, Dorego testified that Skelos’s conduct came off as “more like a soft
demand” than a “request.” 3 Skelos, however, never explicitly threatened
Glenwood personnel or explicitly linked particular legislative outcomes to
Dorego’s assistance to Adam.
In advance of an October 2012 meeting with Skelos, Dorego emailed Adam
saying that he could refer $20,000 of business to Adam. At the October meeting,
Skelos thanked Dorego for what he did for Adam. In February 2013, an executive
with American Land Services (ALS), a company with which Glenwood did
business, handed an envelope containing a $20,000 check to Adam at a Long Island
restaurant, even though Adam had done no work for ALS and had never
discussed or met with the company about work on any particular deal. Adam
took the check and never discussed it again with ALS personnel.
In the months leading up to the $20,000 payment, Glenwood personnel also
helped finalize the terms of a contract between Adam and AbTech. Skelos
discussed AbTech’s proposed terms with Adam and had several calls with
Glenwood’s chief lobbyist the same day.
3 Id. at 4486.
7 Nos. 18-3421, 18-3442
Meanwhile, in November 2012, at the urging of Glenwood personnel,
AbTech retained Adam Skelos on a $4,000-per-month consulting contract, even
though, as Adam himself said on a recorded phone call, he “literally kn[e]w
nothing about water or . . . any of that stuff.” 4 Adam’s role with AbTech was
described as assisting it with legislative matters in the state of New York and other
government relations work related to storm water legislation.
The AbTech Scheme
In April 2013, AbTech submitted a bid in response to a Nassau County
request for proposal (RFP) for a storm water project. The company’s bid was a top
priority that required it to expend “substantial resources” for several weeks. 5
AbTech personnel knew that other companies were going to submit bids, but
Adam assured them that there would be no competition.
Four days after bids were due, Adam called Dorego, livid that the AbTech
engineers were going to make more money from the proposed project than he was.
Adam informed Dorego that he had spoken to his father and that, unless Adam
made more money, pushing the RFP through would not be worth it for Adam and
Skelos. Dorego then emailed AbTech’s CEO as follows:
I’m told he’s about 45 days away from producing the
legislation and the RFP to do up to ten million project
with you. He’s hesitant (and his dad called) to do it with
the engineer’s [sic] making more money than him. If he
4 Id. at 7279.
5 Id at 4974.
8 Nos. 18-3421, 18-3442
doesn’t get like a 4% commission I think they don’t think
it’s worth pushing through. 6
Dorego admitted at trial that this was an “extortionist” threat to the company. 7
AbTech’s Vice President also interpreted this email as a threat because Dean Skelos
had the ability to produce state legislation relevant to the Nassau County contract
that could impact the contract’s value to AbTech. Even though Adam was not
contractually entitled to a raise, the company increased Adam’s monthly
compensation from $4,000 to $10,000 after Nassau County accepted AbTech’s bid.
Skelos later told Adam that he would pass legislation specific to the storm
water issue, which Adam conveyed to AbTech personnel. Skelos’s office then
proposed changes to the New York state budget to provide funding for storm
water infrastructure projects. When the state budget was adopted, AbTech was
assured that the storm water project contract would be funded.
The PRI Scheme
At a fundraiser in late 2010, Dean Skelos asked Anthony Bonomo, the CEO
of Physician’s Reciprocal Insurers (PRI), a New York-based medical malpractice
insurer, if Bonomo could send work to U.S. Legal Support, a company with which
Adam was involved. Bonomo felt that he should do it because Skelos was a state
senator, and PRI had important legislation up for consideration. Bonomo testified
that the most “critical” piece of this pending legislation was the periodic renewal
of so-called “extenders” legislation, which he would talk about “[a]ny time [he]
6 Suppl. App. at 10.
7 App. at 4557.
9 Nos. 18-3421, 18-3442
was in the Senator’s presence.” 8 The extenders legislation prevented the New
York State Department of Financial Services from shutting down medical
malpractice insurers carrying negative balances, and PRI was the only such
insurer. Because the legislation periodically expired, it had to be extended
repeatedly to protect PRI.
Bonomo, following requests by Skelos, accordingly directed work to U.S.
Legal Support. Throughout 2011 and 2012, both Skelos and Adam thanked
Bonomo for sending work to U.S. Legal Support but asked Bonomo to look into
whether PRI could do more for them. In August 2012, Skelos told Bonomo at a
meeting that Adam needed both a job and health benefits. Bonomo proposed that
Adam take a job with PRI, and Bonomo and Skelos discussed legislation that same
day. At later events during which Bonomo and Skelos discussed legislation,
Bonomo reminded Skelos that he had offered Adam a job.
In January 2013, as Bonomo had arranged, Adam began the full-time job at
PRI with regular, in-office hours purportedly selling insurance to physicians,
hospitals, and clinics even though he did not have a license to sell insurance. He
was employed at will with an annual salary of $78,000. Adam stayed in this
position until late April 2013, even though he never worked a full day and failed
to show up most days. When questioned by his supervisor about his repeated
absences from work, Adam referred the supervisor to his father’s arrangement
with Bonomo. After Adam’s relationship with his supervisor predictably soured,
Adam complained to his father. Skelos called Bonomo to express his own
discontent and told Bonomo to work it out. Bonomo did not fire Adam because,
he testified, he “had legislation up in Albany and based on the conversation [he]
8 Id. at 5570.
10 Nos. 18-3421, 18-3442
had with the senator, [he] didn’t want to do anything that [he] feared would put
that in jeopardy.” 9
Instead of firing Adam, Bonomo, with Skelos’s consent, transferred Adam
to a similar position as a consultant that paid somewhat less but did not require
Adam to go to the office. Adam’s new contract began in October 2013 and was
slated to end in March 2015. Adam underperformed in this job as well, making 10
to 12 telemarketing calls a week when he was required to make at least 100. To
Bonomo’s knowledge, Adam never sold an insurance policy for PRI.
Throughout the time that PRI employed Adam, Bonomo had lobbying
meetings with Skelos. Any time Bonomo saw Skelos, Skelos thanked Bonomo and
told Bonomo how important Adam was to him. During the same period, on three
occasions, Skelos permitted Senate votes on, and voted for, renewal of the
extenders legislation that was so critical to PRI. Skelos, however, never overtly
threatened PRI personnel or overtly linked Bonomo’s employment of Adam with
particular legislative outcomes.
In January 2015, before the end of his contract with PRI and after the
government began to investigate the activities of Skelos and his son, Adam called
Bonomo to tell him that he and his father were having a problem with the
government, and that he wanted to know what to do with checks he had received
from PRI. After Bonomo told Adam “to rip those checks up,” Adam said he would
do so. 10
9 Id. at 5527.
10 Id. at 5667.
11 Nos. 18-3421, 18-3442
Convictions
In December 2015, a jury found Dean and Adam Skelos guilty, with respect
to the Glenwood, AbTech, and PRI schemes, of: (1) conspiracy to commit extortion
under color of official right, in violation of 18 U.S.C. § 1951 (Count One);
(2) extortion under color of official right (i.e., Hobbs Act extortion), in violation of
18 U.S.C. §§ 1951 and 2 (Counts Three, Four, and Five); (3) conspiracy to commit
honest services fraud, in violation of 18 U.S.C. § 1349 (Count Two); and
(4) solicitation and acceptance of bribes and gratuities, in violation of 18 U.S.C.
§§ 666 and 2 (Counts Six, Seven, and Eight). After sentencing, the defendants
appealed.
In 2016, with the appeal pending, the Supreme Court decided McDonnell v.
United States, which narrowed the definition of the “official act” that a public
official must exchange for benefits in order to be convicted of Hobbs Act extortion
or honest services fraud, where those crimes have been defined by reference to the
term “official act” in the federal bribery statute, 18 U.S.C. § 201. 11 Because the
McDonnell definition conflicted with the broader definition used by the district
court and the government at trial, we ordered a new trial. 12 In the same decision,
we rejected the defendants’ challenges to the sufficiency of the evidence in support
of their convictions. 13
On July 17, 2018, a second jury, receiving the modified instructions,
convicted Dean and Adam Skelos on all counts. The district court sentenced Dean
11 136 S. Ct. 2355, 2367–68 (2016).
12 United States v. Skelos, 707 F. App’x 733, 738 (2d Cir. 2017).
13 Id.12 Nos. 18-3421, 18-3442
and Adam to imprisonment for 51 and 48 months, respectively, and fined Dean
Skelos $500,000. This appeal followed.
DISCUSSION
The central issue on appeal is (1) Dean and Adam Skelos’s challenge to the
jury instructions in the wake of McDonnell. Both Dean Skelos and Adam also
challenge: (2) the validity of the indictment against them; (3) the appropriateness
of the Southern District of New York as the venue for their prosecution in light of
negative publicity there; (4) the permissibility of their convictions for acceptance
of gratuities under 18 U.S.C. § 666; (5) the district court’s decision to quash certain
subpoenas; and (6) the district court’s denial of an evidentiary hearing on alleged
government leaks of grand jury information. Adam separately challenges: (7) the
admissibility of certain evidence used against him; and (8) the sufficiency of the
evidence to convict him on charges relating to Glenwood and PRI. The arguments
of both defendants are without merit.
I. Jury Instructions
The defendants argue that the jury instructions pertaining to the Hobbs Act
extortion counts were deficient for two reasons: (1) the “as opportunities arise”
theory of bribery upon which the government relied is no longer valid after
McDonnell, and (2) even if that theory is valid, the instructions did not require the
jury to find that the matters upon which Dean Skelos was expected to take official
action had been identified with the requisite precision at the time he accepted each
relevant bribe. 14 Accordingly, the defendants argue that their convictions must be
14 Defendant-Appellant Dean Skelos’s Br. at 23–24. The defendants further argue that any
error in the district court’s instructions pertaining to the Hobbs Act counts (One, Three, Four, and
Five) infected the entirety of the jury instructions because of the cross-referential nature of some
13 Nos. 18-3421, 18-3442
vacated. We review jury instructions de novo for error, but will not vacate a
conviction due to an erroneous jury charge if the error was harmless.15 Because
we find that any error in instructing the jury was harmless, we decline to vacate
the convictions.
The district court charged the jury:
The government must prove beyond a reasonable doubt
that Dean Skelos obtained property to which he was not
entitled by his public office, knowing that it was given in
exchange for official acts as the opportunities arose. The
government must also prove, beyond a reasonable
doubt, that the person giving the property was
motivated, at least in part, by the reasonable expectation
that in exchange for the payment, Dean Skelos would
perform official acts for the benefit of that party, as
opportunities arise, and that Dean Skelos was aware of
that motivation and intended for the other party to
believe that he would perform official acts in exchange
for the property.
If either the person giving the property or Dean Skelos
understood that the property was given solely to
cultivate goodwill, or to nurture a relationship, then this
element has not been proven, even if Dean Skelos later
the jury instructions given regarding the bribery counts. Id. at 22. Because we will find the
instructional error harmless, we need not parse this argument.
15 Silver, 948 F.3d at 547.
14 Nos. 18-3421, 18-3442
performed some act that was beneficial to the giver. . . .
On the other hand, if you find that a person gave
property to Dean Skelos intending, at least in part, to
receive official action in exchange, and that Dean Skelos
accepted the property intending for the giver to believe
that Dean Skelos would take official action in exchange,
then this element has been satisfied. 16
The district court also expanded on the definition of “official act or action”:
An official act or action is a decision or action on a
specific matter that may be pending or may, by law, be
brought before a public official. An official act or action
must involve a decision, an action, or an agreement to
make a decision or to take action on a specific matter. . . .
The decision or action must be made on a question or
matter that involves a formal exercise of governmental
power. That means that the question or matter must be
specific, focused, and concrete. 17
We turn first to the defendants’ general challenge to the “as opportunities
arise” theory of bribery. The “as opportunities arise” theory of bribery requires
the government to prove, in the context of Hobbs Act extortion, that a public
official received a payment to which he was not entitled and, in return for that
payment, “underst[ood] that he or she [was] expected as a result of the payment
16 App. at 6938–39.
17 Id. at 6942–43.
15 Nos. 18-3421, 18-3442
to exercise particular kinds of influence—i.e., on behalf of the payor—as specific
opportunities arise.” 18 Put differently, this theory means that the government
“does not have to prove an explicit promise to perform a particular act made at
the time of payment” so long as the general nature of the act to be taken was
understood at the time of the payment. 19 The validity of this theory of bribery was
firmly established by our court prior to McDonnell. 20
In McDonnell, the Supreme Court held that “an ‘official act’ is a decision or
action on a ‘question, matter, cause, suit, proceeding or controversy” that
“involve[s] a formal exercise of governmental power” and must concern
“something specific and focused that is ‘pending’ or ‘may by law be brought’
before a public official.” 21 That formulation raised the question of whether the
action to be taken in the future by a public official under the “as opportunities
18 United States v. Coyne, 4 F.3d 100, 114 (2d Cir. 1993).
19 Id.20 See, e.g., United States v. Bruno, 661 F.3d 733, 744 (2d Cir. 2011) (“Acts constituting the
agreement need not be agreed to in advance. A promise ‘to perform such acts as the opportunities
arise’ is sufficient.” (quoting United States v. Ganim, 510 F.3d 134, 142 (2d Cir. 2007))); Ganim, 510
F.3d at 142 (holding that “the requisite quid pro quo for [Hobbs Act extortion under 18 U.S.C.
§ 1951, honest services mail fraud under 18 U.S.C. § 1341, and federal programs bribery under 18
U.S.C. § 666] may be satisfied upon a showing that a government official received a benefit in
exchange for his promise to perform official acts or to perform such acts as the opportunities
arise”).
21 McDonnell, 136 S. Ct. at 2371–72. As is common in such prosecutions, the definition of
“official act” used by the district court for the relevant elements of both Hobbs Act extortion and
honest services fraud was the definition set forth in the federal bribery statute, 18 U.S.C. § 201.
“An ‘official act’ [was] defined as ‘any decision or action on any question, matter, cause, suit,
proceeding or controversy, which may at any time be pending, or which may by law be brought
before any public official, in such official’s official capacity, or in such official’s place of trust or
profit.’” Id. at 2365 (quoting 18 U.S.C. § 201(a)(3)).
16 Nos. 18-3421, 18-3442
arise” theory of bribery is compatible with the heightened specificity of “official
act” required by McDonnell. In United States v. Silver, however, we reaffirmed that
the “as opportunities arise” theory of bribery survived McDonnell. 22 We therefore
have no need to dwell further on this portion of the defendants’ challenge to the
jury instructions.
The second part of the Skeloses’ challenge to the jury instructions requires
closer examination. Although Silver confirmed the ongoing validity of the “as
opportunities arise” theory of bribery, it also recognized that faithfulness to
McDonnell requires some limitation on that theory. In Silver, we noted that,
although McDonnell does not “require[] identification of a particular act of
influence, . . . it requires identification of a particular question or matter to be
influenced.” 23 Accordingly, we held that a jury must be required to find that, at
the time the defendant accepted the relevant payment, he understood he was
expected “to take official action on a specific and focused question or matter as the
opportunities to take such action arose.” 24
The jury instructions in this case failed to require that the “specific and
focused question or matter” on which Dean Skelos was expected to take official
action be identified at the time of the payment. The instructions required only that
Skelos be expected to “perform official acts in exchange for the property.” This
left open the possibility that the jury could convict even if Skelos was expected to
take official action on any question or matter in return for the payment. Although
the jury was properly instructed that, for an act to qualify as an “official act,” it
22 948 F.3d 538, 552 (2d Cir. 2020).
23 Id. at 552.
24 Id. at 568.
17 Nos. 18-3421, 18-3442
must be taken on a “question or matter [that is] specific, focused, and concrete,”
the jury was not required to find that Skelos and the bribing party shared a specific
enough understanding of the question or matter upon payment. After Silver,
which was handed down after the district court’s judgment, this was error.
We have no difficulty, however, finding the error to be harmless in light of
the factual record at trial and therefore decline to vacate the defendants’
convictions. “For the erroneous instructions to have been harmless, it must be
‘clear beyond a reasonable doubt that a rational jury would have found [the
defendant] guilty absent the error.’” 25 The burden lies with the government to
establish that error is harmless. 26 Because the guilt or innocence of each defendant
must be addressed individually, we turn first to Dean Skelos and then to Adam.
We are convinced beyond a reasonable doubt that a rational jury, if properly
instructed, would have found that Dean Skelos entered each quid pro quo
arrangement with the understanding that he was expected to “to take official
action on a specific and focused question or matter as the opportunities to take such
action arose.” 27 For each scheme, the government proved that Skelos understood
he was expected to take actions in furtherance of concrete objectives in return for
the unearned payments being provided to Adam. As we observed in Silver, and
as is the case here, “[c]ircumstantial evidence demonstrating an understanding
25 Id. at 569 (quoting United States v. Bah, 574 F.3d 106, 114 (2d Cir. 2009)).
26 Id.27 Id. at 568.
18 Nos. 18-3421, 18-3442
between the payor and the official will often be sufficient for the Government to
identify a properly focused and concrete question or matter.” 28
First, for the Glenwood scheme, it is clear that Glenwood personnel
expected Skelos to take official action specifically with respect to Section 421-a
renewals and related rent regulations, in return for payments to Adam. In a
meeting on May 5, 2011, Glenwood personnel told Skelos that 421-a renewal was
a priority, and Dorego promised to get Adam a job with AbTech. 29 In a meeting
on June 16, 2011, Glenwood personnel again specified that 421-a renewal was a
priority. 30 In response, Skelos first asked about the possibility of getting Adam a
job at AbTech, but later, upon realizing that the AbTech job was “going to take a
long time,” asked if Glenwood personnel could “find something for Adam in the
meantime.” 31 After Skelos ultimately voted to renew 421-a, Adam was given a job
at AbTech. 32
Second, for the AbTech scheme, it is clear that AbTech personnel expected
Skelos to take official action specifically with respect to the Nassau County RFP
for the storm water project (including promoting legislation supporting AbTech’s
RFP contract), in return for payments to Adam. Here, there was an email that
explicitly linked the legislation to Adam’s position at AbTech, in which Dorego
noted that if Adam did not get a raise, he did not think Dean Skelos would advance
28 Id. at 557.
29 App. at 4446–49.
30 Id. at 4455.
31 Id.
32 Id. at 4456–57, 4783–84, 4957–60.
19 Nos. 18-3421, 18-3442
the desired legislation. 33 Subsequently, Adam received a raise from $4,000 to
$10,000 per week. 34 Skelos both pressured the Nassau County Executive to release
payments to AbTech pursuant to the contract and voted for legislation authorizing
funding for which AbTech was eligible under the contract.35
Third, for the PRI scheme, it is clear that PRI personnel expected Skelos to
take official action with respect to extenders legislation renewal. Bonomo testified
that the extenders legislation was so “critical” to PRI’s business that he brought it
up “[a]ny time [he] was in [Skelos’s] presence.” 36 Skelos first asked Bonomo to
pay Adam just a few months before Dean Skelos voted for the legislation in March
2011. 37 Bonomo testified that because the extenders legislation was up for renewal
over a period of years, and because it was not certain to pass, he felt he had to keep
Adam on the payroll even though Adam did virtually no work. 38
Additionally, the government’s theory of the case comported with the
specificity required by Silver, even if the jury charge was overly broad in
retrospect. The government argued in summation that Dean Skelos understood
the payments to Adam were made in exchange for actions taken in these
33 Suppl. App. at 10.
34 App. at 5004–06.
35 Id. at 7135–36, 4302.
36 Id. at 5568–70.
37 Id. at 5570–71.
38 Id. at 5527–28.
20 Nos. 18-3421, 18-3442
specifically identified matters. 39 Moreover, the jury convicted on the related
gratuity counts after being instructed that “[t]o prove an illegal gratuity, . . . the
government must prove that there was a link between a thing of value conferred
on Dean Skelos and a specific official act for or because of which he solicited or
accepted the payment.” 40 We are therefore left with no doubt that a properly
instructed jury would have convicted Dean Skelos on all counts.
Turning next to the son, Adam Skelos argues that the error was not harmless
as to him because there was no evidence that he knew his father had promised
official action on any specific matter. At most, Adam contends, he had only
general knowledge that his father was to take non-specific official action in
exchange for the payments Adam was receiving. 41 This contention is contradicted
by the record, and it is clear beyond a reasonable doubt that a properly instructed
jury would have convicted Adam as well.
As to the AbTech scheme, Dorego testified that Adam and his father
discussed whether it would be “worth it” for Dean Skelos to push through the
legislation if Adam was making less money than his colleagues at the job for which
he did no work. This discussion between father and son clearly indicated that
Adam understood Skelos’s vote on the RFP legislation was linked to Adam’s
desired pay raise. 42
39 See generally id. at 6593–6888.
40 Id. at 6979.
41 Defendant-Appellant Adam Skelos’s Post-Arg. Br. at 5.
42 App. at 4549.
21 Nos. 18-3421, 18-3442
As to the PRI scheme, when Adam went to work at PRI, he introduced
himself to his supervisor by saying, “You know who I am, right? I’m Adam
Skelos.” 43 Later, when the supervisor asked why Adam barely showed up to
work, Adam said that there was an arrangement between Bonomo and Dean
Skelos. 44 In conjunction with both the evidence that Adam and Skelos discussed a
variety of legislative issues that came before Skelos as Majority Leader, 45 and the
evidence of Adam’s thorough understanding of the AbTech scheme, it is beyond
a reasonable doubt that Adam also understood the specific nature of his father’s
“arrangement” with Bonomo.
Similar reasoning prevails as to the Glenwood scheme, in which Adam
accepted a $20,000 payment without questioning it or requesting an explanation
for it being offered. 46 Again, viewed in the context of the full record of Adam’s
involvement in his father’s legislative affairs and Adam’s actions in the other
schemes, it is clear to us that a properly instructed jury would find that Adam
understood his father to be taking specific official action in exchange for the
payout.
II. Validity of the Indictment
In a related challenge, the defendants contest the sufficiency of the
indictment, arguing that it “relied on an invalid ‘as opportunities arise’ theory of
43 Id. at 4143.
44 Id. at 4155.
45 See, e.g., id. at 7104–05 (discussing fracking legislation), 7139–40 (discussing P3
legislation).
46 Id. at 4785.
22 Nos. 18-3421, 18-3442
bribery” and that it failed to “allege that [Dean] Skelos agreed, ‘at the time’ he
solicited or accepted payment, that he would take . . . particular . . . actions on any
concrete, identified matter.” 47 This challenge is a question of law, reviewed de
novo. 48
The challenge fails for two reasons. First, as discussed above, Silver
reaffirmed the validity of the “as opportunities arise” theory of bribery. Second,
indictments are not required to do anything more “than to track the language of
the statute charged and state the time and place (in approximate terms) of the
alleged crime.” 49 This one did.50 The language in an indictment is not required to
be as precise as the attendant jury charge, nor is it required to delineate how the
government will prove the elements set forth in the indictment.
III. Venue
The Skeloses argue that the district court’s denial of their motion for transfer
of venue was reversible error because there was “pervasive, inflammatory, and
deeply personal coverage” of their cases in the New York City news media, and
because the juror questionnaires “made clear that no fair and impartial jury could
be seated in the Southern District of New York.” 51 We review the district court’s
47 Defendant-Appellant Dean Skelos’s Br. at 32–33.
48 United States v. Stringer, 730 F.3d 120, 123 (2d Cir. 2013).
49 Stringer, 730 F.3d at 124 (quoting United States v. Pirro, 212 F.3d 86, 92 (2d Cir. 2000)).
50 App. at 96–105.
51 Defendant-Appellant Adam Skelos’s Br. at 20.
23 Nos. 18-3421, 18-3442
denial of a motion to transfer venue for abuse of discretion, 52 and find none here.
The district court empaneled a fair and impartial jury.
A district court “must transfer” proceedings when prejudice to a defendant
makes it such that “the defendant cannot obtain a fair and impartial trial” in the
district. 53 In assessing whether that is the case, the district court “may” consider
“the extent to which the government is responsible for generating the publicity,
the extent to which the publicity focuses on the crime rather than on the individual
defendants charged with it, and other factors reflecting on the likely effect of the
publicity on the ability of potential jurors in the district to hear the evidence
impartially.” 54 The district court may also take into account the size of the venue,55
and the amount of time that has passed since the bulk of the negative publicity, as
“the effects of publicity [can] dissipate[]” before trial. 56 Ultimately, whether the
district court abused its discretion in denying a motion to transfer venue turns not
on the venire’s “mere exposure to pretrial publicity” but rather on the “actual
prejudgment by the venire of the issues to be decided in the case.” 57 These factors
do not support the defendants’ transfer motion.
News media outlets began reporting that the federal government was
investigating Dean Skelos in January 2015. In April 2015, the New York Times
52 United States v. Maldonado-Rivera, 922 F.2d 934, 967 (2d Cir. 1990).
53 Fed. R. Crim. P. 21(a).
54 Maldonado-Rivera, 922 F.2d at 967.
55 See United States v. Dioguardi, 428 F.2d 1033, 1039 (2d Cir. 1970).
56 United States v. Sabhnani, 599 F.3d 215, 233 (2d Cir. 2010).
57 Id.24 Nos. 18-3421, 18-3442
reported that federal prosecutors were presenting evidence to a grand jury that
was investigating Dean Skelos and his son. Over the next two weeks, other
newspapers reported information about the grand jury proceedings. The grand
jury ultimately indicted Dean and Adam Skelos in July 2015.
The trial from which the Skeloses now appeal, however, did not take place
until July 2018. Three years had elapsed since the bulk of the allegedly problematic
negative reporting. Moreover, the Southern District of New York is a densely
populated area that includes New York, Bronx, and Westchester counties. The
jury selection record shows that more than enough jurors were available for the
venire who were either previously unaware of Dean and Adam Skelos or who had
no prejudgments about the case.
The defendants complain that 45 of the 127 potential jurors “expressed
outward negative feelings . . . towards Republicans, politicians, or the Skeloses,” 58
but it would be impossible to prosecute politicians in almost any district if that
fraction of the venire’s antipathy towards one of two major political parties (or
politicians generally) were sufficient to spoil venue. Ultimately, only two of the
jurors mentioned in the defendants’ briefing survived voir dire’s for-cause stage,
and the government used peremptory challenges on both of them. 59
58 Defendant-Appellant Adam Skelos’s Br. at 33.
59 App. at 1219, 1223.
25 Nos. 18-3421, 18-3442
IV. Acceptance of Gratuities
The Skeloses challenge their convictions under 18 U.S.C. § 666,60 asking us
to overturn our precedent in United States v. Bonito 61 to find that § 666 does not
permit convictions based on acceptance of gratuities. We do not have the power
to do so, acting as a panel of this court.
Moreover, the Skeloses do not challenge these convictions to the extent that
they are predicated on bribery, and both bribery and acceptance of gratuities are
independent bases for conviction under § 666. 62 Here, a special verdict form
specified that the jury found each defendant guilty under § 666 on both the
gratuity theory and the unchallenged bribery theory. 63 Therefore there is no basis
to vacate these convictions.
V. Quashed Subpoenas
The defendants challenge the district court’s decision to quash certain
subpoenas seeking impeachment evidence against Bonomo and Dorego. They
argue that the district court’s application of the standard set forth in United States
60 18 U.S.C. § 666 prohibits state officials from:
[C]orruptly solicit[ing] or demand[ing] for the benefit of any
person, or accept[ing] or agree[ing] to accept, anything of value
from any person, intended to be influenced or rewarded in
connection with any [government business or transactions]
involving any thing of value of $5,000 or more.
61 57 F.3d 167 (2d Cir. 1995).
62 Bonito, 57 F.3d at 171.
63 App. at 7034–36.
26 Nos. 18-3421, 18-3442
v. Nixon 64 was a violation of both their Fifth and Sixth Amendment rights and the
Federal Rules of Criminal Procedure. 65 We review the district court’s decision to
quash the subpoenas for abuse of discretion. 66
The Skeloses tried unsuccessfully to subpoena certain evidence to be used
to impeach the credibility of witnesses Bonomo and Dorego. The first category of
evidence that was sought related to Bonomo and consisted of a number of records
from PRI, which was concurrently under investigation by the New York
Department of Financial Services (DFS). 67 The request included documents that
PRI, Anthony Bonomo, and his brother Carl, PRI’s Chief Operating Officer, had
produced to DFS, transcripts of depositions conducted by DFS and the exhibits to
those depositions, DFS interrogatories and the answers provided to them, and
communications between DFS and the government. 68
The district court quashed these subpoenas as “unreasonable” under
Federal Rule of Criminal Procedure 17(c) 69 and Nixon. In order to find that
production of documents requested in a subpoena would not be “unreasonable or
oppressive” under Rule 17(c), Nixon requires:
64 418 U.S. 683 (1974).
65 Defendant-Appellant Dean Skelos’s Br. at 46.
66 In re Irving, 600 F.2d 1027, 1034 (2d Cir. 1979).
67 App. at 675.
68 United States v. Skelos, No. 15-CR-317 (KMW), 2018 WL 2254538, at *2 (S.D.N.Y. May 17,
2018).
Rule 17(c)(2) provides, in relevant part, that “the court may quash or modify the
69
subpoena if compliance would be unreasonable or oppressive.”
27 Nos. 18-3421, 18-3442
(1) that the documents are evidentiary and relevant;
(2) that they are not otherwise procurable reasonably in
advance of trial by exercise of due diligence; (3) that the
party cannot properly prepare for trial without such
production and inspection in advance of trial and that
the failure to obtain such inspection may tend
unreasonably to delay the trial; and (4) that the
application is made in good faith and is not intended as
a general fishing expedition. 70
Applying this standard, the court determined that the subpoenas were “not
sufficiently specific and request[ed] the production of documents that [were]
either not admissible at trial or [were] obtainable through other means.” 71 We can
find no abuse of discretion in the district court’s quashing of the Bonomo/PRI
subpoenas for that reason.
The second category of evidence was sought to impeach Dorego. The
defendants subpoenaed information from Glenwood and Dorego to demonstrate
that Dorego had received unlawful kickbacks, engaged in sham transactions, and
made straw campaign contributions. 72 The district court upheld subpoenas
related to the alleged kickbacks 73 but quashed those that asked for “documents
and communications concerning [Dorego’s] purchase of Cleanwater from Steven
70 418 U.S. at 699–700 (footnote and quotation marks omitted).
71 Skelos, 2018 WL 2254538, at *2.
72 Id. at *5–8.
73 Id. at *6.
28 Nos. 18-3421, 18-3442
Swarzman including any consideration paid for this purchase,” 74 Swarzman’s
“documents and communications concerning transactions with Charles Dorego,
Christopher McKenna, Thomas Dwyer, American Land Abstract or [ALS],” 75 and
“documents and communications concerning any contributions (political or
otherwise) funded by Glenwood but made in the name of another person or
entity.” 76 Following Nixon, the district court determined that these requests were
either fishing expeditions or irrelevant. 77 We find no abuse of discretion in the
district court’s decision to quash these subpoenas as “unreasonable or oppressive”
under Rule 17.
We also see no infringement of the Skeloses’ Fifth and Sixth Amendment
rights in the district court’s denial of requests for documents that were irrelevant,
inadmissible, obtainable by other means, or part of discovery fishing expeditions.
VI. Denial of an Evidentiary Hearing
Dean and Adam Skelos contend that the district court erred in not holding
a hearing to determine if the government violated Federal Rule of Criminal
Procedure 6(e), which prohibits “attorney[s] for the government” from disclosing
matters occurring before a grand jury. 78 They argue that they made a prima facie
case of a Rule 6(e) violation because of newspaper reports about grand jury
74 Id.75 Id. at *8.
76 Id.77 Id. at *6, *8.
78 Defendant-Appellant Dean Skelos’s Br. at 54.
29 Nos. 18-3421, 18-3442
proceedings that cited “government investigators” as sources. 79 We review the
district court’s failure to hold the requested hearing for abuse of discretion. 80
The district court found that the defendants had not made out a prima facie
case of a Rule 6(e) violation, and we agree. In assessing whether a defendant has
established a prima facie violation of Rule 6(e), the district court examines, inter
alia, “(1) whether the media reports disclose matters occurring before the grand
jury; (2) whether the media report[s] disclose[] the source as one prohibited under
Rule 6(e); and (3) evidence presented by the government to rebut allegations of a
violation of Rule 6(e).” 81 Contrary to the defendants’ contentions, the media
outlets only identified a “government source” or “[l]aw-enforcement sources,” not
government investigators. 82 The government in this case affirmed by affidavit that
none of the Assistant United States Attorneys, investigators, and FBI agents
involved in this investigation spoke to the press. 83 There was no evidence to the
contrary before the district court. The district court thus had a sound basis for
finding no prima facie showing of a Rule 6(e) violation, 84 and accordingly we find
no abuse of discretion.
79 Id. at 54, 59.
80 United States v. Walters, 910 F.3d 11, 22 (2d Cir. 2018).
81 United States v. Rioux, 97 F.3d 648, 662 (2d Cir. 1996).
82 United States v. Skelos, No. 15-CR-317 (KMW), 2018 WL 2849712, at *7 (S.D.N.Y. June 8,
2018).
83 Id.See Rioux, 97 F.3d at 662 (finding the district court acted within its discretion in finding
84
no prima facie violation where the government had submitted affidavits denying it was the
source even though the news article’s source was “likely” a government official).
30 Nos. 18-3421, 18-3442
VII. Adam Skelos’s Evidentiary Challenge
Adam Skelos argues that the district court erred in admitting into evidence
(1) records and charts showing his annual incomes for the years 2010 through 2014,
and (2) a phone call between Adam and Demetrios Raptis, a Greek diner owner
who heads an association of Greek diner owners. Adam contends this evidence
was irrelevant under Federal Rule of Evidence 401 and, in any event, should have
been excluded under Federal Rule of Evidence 403.85
We review a district court’s evidentiary rulings under “a deferential abuse
of discretion standard” and will disturb its rulings “only where the decision to
admit or exclude evidence was manifestly erroneous.” 86 In the context of Rule 403,
we conduct this review recognizing that “[a] district court is, of course, in the best
position to do the balancing required.” 87 In light of that deferential standard, we
can find no abuse of discretion in admitting the evidence here.
First, both challenged pieces of evidence were relevant. 88 Adam’s overall
income was relevant to proving intent, as the defendants had represented to the
victims of their extortion that the payments were needed to help Adam
85 Defendant-Appellant Adam Skelos’s Br. at 52–53.
86United States v. Litvak, 808 F.3d 160, 179 (2d Cir. 2015) (quoting United States v. McGinn,
787 F.3d 116, 127 (2d Cir. 2015)).
United States v. Ansaldi, 372 F.3d 118, 131 (2d Cir. 2004), abrogated on other grounds by
87
McFadden v. United States, 576 U.S. 186 (2015).
88 Evidence is relevant if it “has any tendency to make a fact more or less probable than it
would be without the evidence” and “the fact is of consequence in determining the action.” Fed.
R. Evid. 401 (emphasis added).
31 Nos. 18-3421, 18-3442
financially. 89 In fact, Adam had a total income of over $1.35 million across five
years, 90 and so the false representations made to those paying the bribes tended to
reinforce a corrupt intent to extract monetary value from Skelos’s public office.
The call with Raptis was also relevant to proving intent, as it tended to prove
Adam’s awareness that his conduct was unlawful. On the call, Adam referenced
his father, offered to use his “reach” to benefit Raptis, and then said he is “not
going to say . . . on the phone” how he “could get a lot of things done for
[Raptis].” 91 Both of these pieces of evidence easily surpass the low bar for
relevancy.
Second, neither of the challenged pieces of evidence meets the high bar on
appeal to reverse the district court’s discretionary finding of admissibility under
Rule 403, which provides for the exclusion of otherwise relevant evidence if “its
probative value is substantially outweighed by a danger of . . . unfair prejudice.” 92
Adam contends that the evidence of his income was unfairly prejudicial. 93 His
annual average income, however, was neither grotesque nor central to the trial.
As to the Raptis call, Adam contends that his “nasty” and “racially charged”
rudeness on the call unfairly prejudiced him. 94 We do not take issue with Adam’s
characterization of his behavior on the call, but we do not think the district court
89 App. at 4490–91, 5588, 7047.
90 Id. at 7345–46.
91 Id. at 7120.4–20.7.
92 Fed. R. Evid. 403.
93 Defendant-Appellant Adam Skelos’s Br. at 53.
94 Id. at 57.
32 Nos. 18-3421, 18-3442
abused its discretion in concluding that the evidence was not unfairly prejudicial
in light of its considerable probative value regarding Adam’s intent. Accordingly,
we see no reason to disturb the district court’s discretionary assessment that this
evidence ought not be excluded pursuant to Rule 403.
VIII. Adam Skelos’s Sufficiency Challenge
Adam Skelos challenges the sufficiency of the evidence for his convictions
on the PRI and Glenwood schemes. 95 In addressing this challenge, we view the
evidence in the light most favorable to the government and will affirm if any
rational trier of fact could have convicted the defendant beyond a reasonable
doubt.96
For the reasons we discussed above regarding the harmlessness of the
instructional error—a context in which the standard of review is more favorable
to Adam—we find that the evidence was sufficient to support Adam’s convictions.
Moreover, the jury could reasonably infer Adam’s culpable intent from his
willingness to rip up checks at Bonomo’s request after the government’s
investigation in this case had commenced.
CONCLUSION
For the foregoing reasons, we AFFIRM the judgments of conviction in full.
95 Id. at 41.
96 Silver, 864 F.3d at 113.