United States v. Joseph Ferriero , 866 F.3d 107 ( 2017 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 15-4064
___________
UNITED STATES OF AMERICA
v.
JOSEPH A. FERRIERO,
Appellant
_______________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal No. 2-13-cr-00592-001)
District Judge: Honorable Esther Salas
______________
ARGUED: November 1, 2016
Before: HARDIMAN and SCIRICA, Circuit Judges, and
ROSENTHAL,* District Judge.
*
The Honorable Lee H. Rosenthal, United States
District Judge for the Southern District of Texas, sitting by
designation.
(Filed: August 4, 2017)
Peter Goldberger, Esq. [ARGUED]
50 Rittenhouse Place
Ardmore, PA 19003
Counsel for Appellant
Mark E. Coyne, Esq.
Bruce P. Keller, Esq. [ARGUED]
970 Broad Street
Suite 700
Newark, NJ 07102
Counsel for Appellee
_________________
OPINION OF THE COURT
_________________
SCIRICA, Circuit Judge.
Joseph A. Ferriero appeals his judgments of
conviction, forfeiture, and sentence based on violations of the
Travel Act, 18 U.S.C. § 1952, the Racketeer Influenced and
Corrupt Organizations Act (“RICO”), id. § 1962(c), and the
federal wire fraud statute, id. § 1343. We will affirm.1
1
The District Court had jurisdiction under 18 U.S.C. § 3231.
We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a).
2
I.
Joseph Ferriero served as chairman of the Bergen
County Democratic Organization (BCDO) from 1998 until he
resigned in January 2009. As party chair, Ferriero wielded
significant power in the process of nominating Democrats in
local elections and in the process of choosing which issues
and candidates the party supported. In his role, he raised
money for the Democratic Party, helped elect Democratic
candidates to local office, and managed campaigns in
important local elections. Significantly for this case, one
aspect of party business was connecting and recommending
vendors to Democrats elected or appointed to local office in
Bergen County.
Ferriero’s convictions stem from payments he took
from a particular vendor, John Carrino, in exchange for
recommending to certain officials that their towns hire
Carrino’s firm. Carrino owned C3 Holdings, LLC
(hereinafter, “C3”)—short for Citizen Communications
Center—a New Jersey corporation that provided emergency-
notification systems for local governments.2 Carrino also
owned Braveside Capital, LLC, a New Jersey corporation he
described as the “sales arm” of C3.
Since Carrino sought municipal contracts for C3,
Ferriero was uniquely situated to influence Democratic
2
Emergency-notification systems—also known as “reverse
911” services—allow governments to use various
communication platforms (e.g., text message, email, voice
call) to automatically notify residents of local emergencies
like natural disasters, missing children, loose wild animals,
and power outages.
3
municipal officials by virtue of his position as their county
party chair. The two struck an agreement. Ferriero would
recommend C3 to local governments in exchange for a 25- to
33-percent commission on contracts for the towns that
ultimately hired the company. They memorialized the
agreement in a contract between Carrino’s Braveside Capital
and SJC Consulting, a new company Ferriero had
incorporated under the laws of Nevada. The contract,
executed April 22, 2008, describes the relationship as an
“agreement . . . to provide governmental relations consulting
services required in connection with marketing of a product
known as C3 and any other related products or services.”
To that end, Ferriero had drawn up a list of target
Bergen County municipalities with corresponding names of
Democrats in local office, and over the course of about a year,
he “pushed hard for C3.” Relevant to his convictions, he
recommended C3 to local officials for the boroughs of
Dumont, Cliffside Park, and Wood-Ridge, and for Saddle
Brook and Teaneck townships.
Ferriero made these recommendations at BCDO-
sponsored events, at local political fundraisers, at informal
meetings, or simply over email. For example, Ferriero made
inroads for C3 with Dumont’s leadership at a 2007 lunch
where he introduced Carrino to the borough’s mayor,
Matthew McHale. Ferriero recommended C3 to the mayor
and followed up with an email asking, “How [are] we doing
with C-3”? Mayor McHale ultimately brought C3 to the
borough administrator, who in turn took the idea to the
borough council. The borough council voted to license C3’s
software. Neither McHale, the borough administrator, nor the
4
councilmembers knew Ferriero would make money as a
result.
In August 2007, Ferriero introduced Carrino to
Teaneck councilman El-Natan Rudolph, whose name Ferriero
had written next to Teaneck on the list of municipal sales
targets. Rudolph put Carrino in touch with Teaneck’s town
manager, Helene Fall, who that very day emailed Carrino
about C3’s web services. In December, the Teaneck council
unanimously voted for a resolution, introduced by Rudolph,
authorizing the town to pay up to $24,000 to hire C3 for the
year 2008.
In November 2007, Ferriero introduced Carrino to
Saddle Brook Mayor Louis D’Arminio at a BCDO-sponsored
gala. Ferriero recommended C3’s products, and D’Arminio
and Carrino exchanged business cards. The town council
ultimately voted to contract with C3 without D’Arminio or
the township council having been aware that Ferriero stood to
benefit financially from the contract.
Sometime in 2008, Ferriero called Cliffside Park’s
borough attorney Chris Diktas to vouch for C3 after Carrino
pitched the service to town leaders. Councilwoman Dana
Spoto testified that, before the borough council voted on the
matter, Diktas advised her that Ferriero had vouched for C3
and that “Joe wanted it.” The Cliffside Park council voted to
contract with C3, resolving to authorize a $2,000-per-month
contract, though neither Diktas nor Councilwoman Spoto
were aware Ferriero stood to gain financially from the
contract.
5
As Carrino’s local contracts moved forward, Ferriero
profited as well. Over the course of 2008, Carrino paid
Ferriero’s SJC Consulting at least $11,875 with checks that
included those four town names in the checks’ memo lines.
On a check dated May 16, 2008, the memo line read “Q1/Q2
SB / Q1 Dumont.” A check dated July 27, 2008, had a memo
line that read “Q1: Teaneck Q2: Teaneck, Dumont + CP – Q2
(2m).” And the memo line of a check dated September 18,
2008, read “Q3: Saddlebrook & Dumont.”
Sometime that same year, Cliffside Park’s mayor grew
concerned about Ferriero’s role in the town’s contract with
C3. He asked the borough’s Chief Financial Officer, Frank
Berardo, about the contract’s details and directed Berardo to
find out “who the owners of the company were.” On July 9,
2008, Berardo called Carrino to inquire into the contract and
“the owners of th[e] corporation.” Carrino said he would
respond by email, and roughly one hour later, emailed
Berardo with a reply:
Frank,
Per our conversation this morning, please find
attached copies of the State of New Jersey
Business Certificate as well as C3’s Standard
Software as a Service Licensing Agreement.
Please call me if you have any questions. My
cell is: [***.***.****]
By way of this email I am also cc’ing [Borough
Attorney Chris] Diktas for his review.
Attached to the email were copies of the contract and C3’s
certification of formation, which listed only Carrino under
6
“Members/Managers.” There was no reference to Joseph
Ferriero. Cliffside Park paid Carrino for services in June and
July with a $4,000 check dated July 9.
Not all of the localities on Ferriero’s list ultimately
hired C3. The Borough of Wood-Ridge declined to contract
with C3, but the borough’s mayor Paul Sarlo still felt
pressured to do so. Mayor Sarlo broke the news of Wood-
Ridge’s decision to Ferriero and Carrino at a local political
fundraiser. Ferriero and Carrino were upset and the ensuing
conversation “got tense and . . . heated” until a Sarlo staffer
intervened.
Ferriero pushed Democratic officials from Bergen
County towns to contract with C3, and four of the localities
on his list eventually did so. He was paid thousands of
dollars based on those four contracts in checks listing out
which payments corresponded to which town. But none of
the local Democratic officials to whom Ferriero
recommended C3 were aware he stood to profit.
II.
A federal grand jury returned a five-count Indictment
that charged Ferriero with violations of RICO, the Travel Act,
and federal mail and wire fraud statutes. Count 1 charged
Ferriero with violating RICO, 18 U.S.C. § 1962(c), alleging
he conducted the Bergen County Democratic Organization
through a pattern of racketeering activity. As proof of that
pattern, the Indictment alleged seven predicate racketeering
acts. Racketeering acts #1 and #2 were based on allegations
of bribery, extortion, and honest services fraud unrelated to
7
Ferriero’s contract with C3.3 Predicate racketeering acts #3
through #7 alleged the payments made in exchange for
Ferriero’s recommendations to local Democratic officials in
favor of contracting with C3 violated New Jersey’s bribery
statute. That provision prohibits “accept[ing] or agree[ing] to
accept . . . [a]ny benefit as consideration for a decision,
opinion, recommendation, vote or exercise of discretion of a
public servant, party official or voter on any public issue or in
any public election.” N.J. Stat. Ann. § 2C:27–2 (emphasis
added).
Count 2 charged Ferriero with conspiracy to commit
mail fraud, 18 U.S.C. § 1341, wire fraud, id. § 1343, and
violations of the Travel Act, id. § 1952. Count 3 charged a
substantive Travel Act violation based on an underlying
violation of New Jersey’s bribery statute. Counts 4 and 5
charged violations of mail and wire fraud, respectively,
alleging Carrino and Ferriero defrauded Dumont (Count 4)
and Cliffside Park (Count 5). Count 5’s underlying fraud
allegation stemmed from the Carrino email to Cliffside Park
3
The jury found the government failed to prove racketeering
acts #1 and #2. Racketeering act #1 alleged Ferriero
orchestrated the appointment of Dennis Oury as Bergenfield,
NJ, borough attorney. Ferriero allegedly committed bribery
and honest services fraud when he gave Oury a financial
interest in a Ferriero-owned grant-writing company called
GGC in exchange for Oury’s promise to arrange for
Bergenfield to hire the firm. Racketeering act #2 alleged
Ferriero committed bribery and extortion when he and others
accepted a $35,000-per-month consulting fee in exchange for
supporting a commercial development project in the Bergen
County town of East Rutherford.
8
that failed to disclose Ferriero’s financial interest in the
borough’s contract with C3.
Before trial, Ferriero moved to dismiss Count 1
(RICO) on the ground the Indictment failed to allege RICO’s
so-called “nexus” requirement, and moved to dismiss Counts
1–3, arguing New Jersey’s bribery statute was
unconstitutionally overbroad and vague. Both motions were
denied.
The jury found Ferriero guilty on Count 1 (RICO),
Count 3 (Travel Act), and Count 5 (wire fraud). As noted, the
jury determined that, for Count 1’s seven alleged racketeering
acts, the government did not prove Ferriero committed
racketeering acts #1 and #2, the alleged crimes unrelated to
the C3 scheme. See supra, note 3. But the jury concluded
Ferriero committed racketeering acts #3 through #7—that is,
the jury concluded Ferriero committed bribery by agreeing to
recommend C3’s services in exchange for a share of any
resulting contracts’ revenues. The jury acquitted Ferriero of
Count 2 (conspiracy) and Count 4 (mail fraud).
Ferriero had moved for judgment of acquittal on all
counts following the close of the government’s case at trial,
and he renewed that motion for Counts 1, 3, and 5, which the
court denied. Ferriero was sentenced to three concurrent 35-
month prison terms and ordered to forfeit the money
equivalent of the proceeds he derived from the racketeering
and wire fraud. Ferriero appealed.
9
III.
A.
Ferriero mounts three challenges on the sufficiency of
the evidence supporting his convictions for violating RICO
and the Travel Act.4
1.
Ferriero asserts the evidence was insufficient to prove
New Jersey bribery as a predicate act for his Travel Act and
RICO convictions.
The Travel Act prohibits using interstate travel, mail,
or facilities with intent to carry out “any unlawful activity,”
18 U.S.C. § 1952(a)(3), or with intent to “distribute the
proceeds of any unlawful activity,” id. § 1952(a)(1). The
definition of “unlawful activity,” includes “bribery . . . in
violation of the laws of the State in which committed.” Id.
§ 1952(b)(2). RICO proscribes participating in the conduct of
an interstate enterprise’s affairs “through a pattern of
racketeering activity,” id. § 1962(c), a term defined to include
4
For challenges to the sufficiency of the evidence, we
construe the evidence in favor of the government and reverse
only if no rational juror could have found all essential
elements of the crime beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319 (1979); United States v. Boria,
592 F.3d 476, 480 (3d Cir. 2010). To the extent Ferriero’s
sufficiency arguments raise issues of statutory interpretation,
our review is plenary. United States v. Parise, 159 F.3d 790,
794 (3d Cir. 1998).
10
acts involving “bribery . . . which is chargeable under State
law and punishable by imprisonment for more than one year,”
id. § 1961(1)(A).
Ferriero’s Travel Act and RICO convictions both rest
on the jury’s determination that, as a party official, he
violated New Jersey’s prohibition against “[b]ribery in
official and political matters.” N.J. Stat. Ann. § 2C:27–2.
According to that provision, “[a] person is guilty of bribery if
he directly or indirectly offers, confers or agrees to confer
upon another, or solicits, accepts or agrees to accept . . . [a]ny
benefit as consideration for a decision, opinion,
recommendation, vote or exercise of discretion of a public
servant, party official or voter on any public issue or in any
public election.” Id.
The record contains sufficient evidence to support the
jury’s conclusion Ferriero violated New Jersey’s bribery
statute. He agreed to accept payments from John Carrino as
consideration for a particular recommendation on a public
issue—namely, his favorable recommendation to Democrats
holding office in Bergen County on the public issue of
whether their towns should contract to hire C3.
Ferriero asserts his conviction requires additional
proof he agreed to “undermine the integrity of the towns’
processes in considering whether to purchase the C3
product.” Appellant Br. at 29. For this proposition he cites
United States v. Dansker, 537 F.2d 40 (3d Cir. 1976), a
Travel Act case in which the alleged predicate “unlawful
activity” was a violation of New Jersey’s predecessor bribery
statute that has since been repealed and superseded. Dansker
held that a conviction under New Jersey’s predecessor bribery
statute required proof a defendant agreed to “undermine the
11
integrity of [a] public action.” Id. at 49. Ferriero relies on
Dansker to maintain the government must show an integrity-
undermining intent to prove he violated New Jersey’s current
bribery statute.
Dansker involved several alleged bribes paid by real
estate developers to the vice-chair of the Fort Lee, New
Jersey parking authority. Id. at 44. The developers owned a
large swath of property at the western terminus of the George
Washington Bridge—property zoned for non-commercial
use—and sought zoning variances in order to develop the
property into a shopping center. Id. Nathan Serota, a nearby
resident and the local parking authority’s vice-chair, launched
a public campaign against it, though he never acted in his
capacity as a public official. Id. at 44–45. The developers
paid Serota to drop the public campaign, which a jury
concluded violated the Travel Act because the payments
amounted to bribes in violation of New Jersey’s then-existing
bribery statute. Id. at 44. That statute included broad
language prohibiting anyone—public officials or otherwise—
from giving or accepting “any . . . thing of value . . . to
procure any work, service, license, permission, approval or
disapproval, or any other act or thing connected with or
appertaining to any [governmental body].”5 Id. at 48
(alteration in original).
5
In full, the predecessor bribery statute at issue in Dansker
read:
Any person who directly or indirectly gives or
receives, offers to give or receive, or promises
to give or receive any money, real estate,
service or thing of value as a bribe, present or
reward to obtain, secure or procure any work,
12
We observed that the statute did not require a bribe
recipient occupy a position of public trust, nor did it require a
recipient “attempt to influence governmental action in an
unlawful or otherwise corrupt manner.” Id. Read literally,
the statute’s breadth risked running afoul of the First
Amendment, and we construed the provision to reach “only
that conduct which has been the traditional concern of the law
of bribery—conduct which is intended, at least by the alleged
briber, as an assault on the integrity of a public office or an
official action.” Id. We explained the gravamen of the
offense was the recipient “agree[ing] to utilize whatever
apparent influence he might possess to somehow corrupt a
public office or an official act.” Id. We did not read the
statute as criminalizing public officials influencing
governmental action in otherwise legal ways. Id. at 49.
Rather, we said that to prove a violation of the statute as a
federal predicate, the government must demonstrate:
(a) that the alleged recipient, whether he be a
public official or not, possessed at least the
apparent ability to influence the particular
public action involved; and (b) that he agreed to
service, license, permission, approval or
disapproval, or any other act or thing connected
with or appertaining to any office or department
of the government of the state or of any county,
municipality or other political subdivision
thereof, or of any public authority, is guilty of a
misdemeanor.
N.J. Stat. Ann. 2A:93–6 (repealed 1978); Dansker, 537 F.2d
at 48.
13
exert that influence in a manner which would
undermine the integrity of that public action.
Id. Because Serota, in his capacity as parking vice-chair, had
no actual or apparent ability to influence the official decisions
concerning the shopping center development, there was no
evidence that, in purchasing his support, the developers
corrupted the zoning board’s decisionmaking process. Id. at
50.
Several years later, New Jersey repealed the statute at
issue in Dansker. As part of the state’s comprehensive
reform of its criminal code, the legislature repealed the
predecessor bribery statute and enacted the current version,
see Act of Aug. 29, 1979, ch. 178, 1979 N.J. Laws 664, 712–
13 (codified at N.J. Stat. Ann. § 2C:27–2), which is more
narrow than the statute we construed in Dansker. The
predecessor statute applied to the universe of persons in New
Jersey, whereas the current statute’s language is limited to
bribing persons in positions of public trust—that is, “a public
servant, party official or voter,” N.J. Stat. Ann. § 2C:27–2—
and the current provision only prohibits bribing those persons
to secure a particular decision, opinion, recommendation, or
vote, see id.
Ferriero suggests we read into New Jersey’s current
bribery provision Dansker’s language requiring an agreement
to undermine the integrity of a public action. But he does not
cite any cases in our court or New Jersey’s courts reading that
requirement into the current provision. Ferriero cites several
cases that borrow Dansker’s language, Appellant Br. at 22–
23, but those cases do not involve the substantive application
of New Jersey bribery law. Rather, they employ Dansker’s
14
language to describe bribery generically. See United States v.
Forsythe, 560 F.2d 1127, 1137 n.23 (3d Cir. 1977).
The importance of generic descriptions of crimes like
bribery stems from federal enforcement schemes that
incorporate state law. When a federal scheme incorporates
state law, whether a state-law violation qualifies as a federal
predicate depends on whether the state offense falls within
that crime’s generic definition.6 Id. at 1137. In United States
v. Forsythe, for example, we considered whether
Pennsylvania’s bribery statute qualified as a predicate for
RICO, 18 U.S.C. § 1961(1)(A), which incorporates “act[s] . .
. involving . . . bribery.” Id. (alteration in original). Citing
Dansker, we noted “[t]he generic description of bribery is
‘conduct which is intended, at least by the alleged briber, as
an assault on the integrity of a public office or an official
action.’” Id. at 1137 n.23 (quoting Dansker, 537 F.2d at 48).7
6
In United States v. Nardello, 393 U.S. 286, 287 (1968), for
example, the Supreme Court considered whether
Pennsylvania’s law punishing “blackmail” could be used as a
predicate for the Travel Act, which incorporates “‘extortion’
in violation of the laws of the State in which committed.”
The Supreme Court explained that even though Pennsylvania
did not explicitly call the offense “extortion,” it was still a
valid Travel Act predicate because the conduct punishable as
“blackmail” fell within extortion’s generic definition. Id. at
296.
7
We quoted the same language in later cases evaluating
whether state bribery laws counted as federal predicates. See
Rose v. Bartle, 871 F.2d 331, 362 (3d Cir. 1989); United
States v. Traitz, 871 F.2d 368, 387 n.21 (3d Cir. 1989).
15
But there is sa difference between the elements of
underlying state-law predicates and the definition of generic
offenses enumerated in federal laws like RICO and the Travel
Act. Dansker involved construing New Jersey’s predecessor
bribery statute for purposes of its substantive application,
whereas Forsythe and subsequent cases merely borrowed
Dansker’s language to define bribery in generic terms.
Ferriero does not argue that New Jersey’s current bribery
statute falls outside the generic definition of bribery. Rather,
he suggests we take the requirement the Dansker court read
into the predecessor statute—that the government prove an
agreement to undermine the integrity of a public action—and
likewise read that requirement into the current provision as an
additional, extra-textual element.
We decline to do so. We read the current statute as
sufficiently distinguishable from the statute in Dansker that
we need not extend Dansker’s limiting construction of the
predecessor statute to the current one. For that reason, we see
no basis for disturbing Ferriero’s Travel Act and RICO
convictions on sufficiency grounds.
2.
Next, Ferriero challenges his RICO conviction by
attacking the sufficiency of the evidence supporting 18 U.S.C.
§ 1962(c)’s “nexus” element. Section 1962(c) makes it
unlawful “to conduct or participate, directly or indirectly, in
the conduct of such enterprise’s affairs through a pattern of
racketeering activity.” Id. The nexus element requires
proving a sufficiently close relationship between the
defendant, his involvement in the enterprise’s affairs, and the
pattern of racketeering. See In re Ins. Brokerage Antitrust
16
Litig., 618 F.3d 300, 371 (3d Cir. 2010). This includes the
relationship between the defendant and the conduct of the
enterprise’s affairs, see Reves v. Ernst & Young, 507 U.S.
170, 179 (1993), and between those affairs and the predicate
racketeering activity, see Ins. Brokerage, 618 F.3d at 371; see
also United States v. Cauble, 706 F.2d 1322, 1331–33 (5th
Cir. 1983) (discussing the relational permutations of the
defendant, enterprise, and racketeering acts in § 1962(c)’s
nexus element). The latter relationship, which Ferriero
asserts was not proved here, proceeds from the requirement a
defendant participate in the conduct of the enterprise’s affairs
“through” racketeering. In In re Insurance Brokerage
Antitrust Litigation, we said that relationship exists if a
defendant “participated in the conduct of the enterprise’s
affairs . . . through—that is ‘by means of, by consequence of,
by reason of, by the agency of, or by the instrumentality of’—
a pattern of racketeering activity.” 618 F.3d at 372 (quoting
United States v. Brandao, 539 F.3d 44, 53 (1st Cir. 2008)).
Here, the District Court properly instructed the jury
that “the government must demonstrate that Joseph Ferriero
conducted or participated in the conduct of the affairs of the
enterprise by means of, by consequence of, by reason of, by
agency of, or by the instrumentality of a pattern of
racketeering activity.” The relevant “enterprise” was the
Bergen County Democratic Organization. Its “affairs”
include any matters and concerns that constituted party
business.8 And the jury concluded the C3 scheme amounted
8
See 1 Webster’s Third New International Dictionary 35
(1961) (defining “affairs” as “commercial, professional, or
public business”); Black’s Law Dictionary 79 (4th ed. 1968)
17
to a pattern of bribery. Therefore, the question is whether a
rational juror could conclude the C3 bribery scheme was one
means by which Ferriero participated in the conduct of party
business.
The record contains more than enough evidence for a
rational juror to conclude that it was. A rational juror could
conclude it was party business when Ferriero recommended
vendors to party members holding local office. As the
District Court observed, multiple witnesses testified Ferriero
regularly recommended vendors to local Democratic
officials.9 In fact, the BCDO hosted an annual gala at the
municipal convention where local officials came to find
vendors and providers of professional services. And, as party
chair, Ferriero’s recommendations carried great weight. A
rational juror could conclude that when Ferriero made certain
recommendations to local Democratic officials (regarding
vendors or otherwise), it was party business by virtue of the
considerable influence he held over those officials’ reelection
(defining “affairs” as “[a]n inclusive term, bringing within its
scope and meaning anything that a person may do”).
9
For example, Mayor Sarlo (Wood-Ridge) testified Ferriero
regularly advised him about vendors. Mayor McHale
(Dumont) testified Ferriero would advise him on hiring
professional service providers and make particular
recommendations when the town had particular needs.
Ferriero recommended C3 to Mayor D’Arminio (Saddle
Brook) at the same municipal conference where, several years
earlier, Ferriero had recommended the engineering company
Saddle Brook hired when D’Arminio first assumed the office
of mayor.
18
and career prospects. Indeed, Ferriero’s list of target officials
and towns in Bergen County was almost entirely composed of
Democratic officials and towns controlled by Democrats. A
rational juror could conclude Ferriero conducted party
business and the C3 bribery scheme in tandem when he
carried out the scheme by recommending C3 to local
Democratic officials and using his influence to urge that they
award C3 contracts. A rational juror could therefore conclude
the pattern of bribery was one means by which Ferriero
participated in the conduct of the BCDO’s affairs.
Ferriero asserts a rational juror could not reach that
conclusion, and offers two arguments. We find neither
persuasive. First, he argues the evidence was insufficient
because it did not show he recommended C3 while
performing an official BCDO duty or while acting in his
capacity as party chairman. But a rational juror could have
found that the BCDO’s affairs went beyond the chair’s
official duties. As noted, the BCDO’s affairs included those
matters and concerns that comprised party business, and a
rational juror could have concluded that party business
included recommendations to party members in local office,
in particular recommendations about hiring vendors. Ferriero
need not have carried out the bribery scheme in an official
capacity for a rational juror to conclude it was a means by
which he participated in the conduct of the party’s affairs.
Ferriero also argues that participating in the conduct of
an enterprise’s affairs by means of racketeering categorically
excludes cases in which a defendant’s association with the
enterprise facilitates his predicate acts. Ferriero affirmatively
agreed to the nexus instruction charged to the jury and takes
19
no issue with it on appeal.10 He nonetheless asserts that,
because there was evidence he used his BCDO position to
facilitate his bribery scheme, the record lacks evidence that
bribery was a means by which he participated in the conduct
of the BCDO’s affairs. As noted, there was more than
enough evidence for a rational juror to conclude bribery was a
means by which Ferriero participated in the conduct of the
BCDO’s affairs. And in any event, his understanding of the
nexus element is incorrect.
10
The government suggests Ferriero’s nexus argument
necessarily embeds a jury-instruction challenge into a
sufficiency-of-the-evidence attack, and urges us to reject his
argument as invited error or alternatively to review it for plain
error, because Ferriero’s attorney played an affirmative role
in formulating the instruction. Appellee Br. at 33. If a
defendant specifically requested an instruction, then he
invited any alleged error in it and waived the right to argue it
was flawed on appeal. See United States v. Andrews, 681
F.3d 509, 517 n.4 (3d Cir. 2012). But if he acquiesced to an
instruction, then he forfeited (rather than waived) the
argument and we may correct the error if it was “plain error . .
. affecting substantial rights.” Fed. R. Crim. P. 52(b); see
United States v. Lawrence, 662 F.3d 551, 557 (D.C. Cir.
2011) (reviewing for plain error where a defendant
“acquiesced [to a jury instruction] . . . but he did not invite it”
(citation and quotation marks omitted)); see also United
States v. Olano, 507 U.S. 725, 733 (1993) (distinguishing
waiver from forfeiture). Assuming plain error review is
appropriate, there was no error in the instruction, much less
plain error, because Ferriero’s nexus interpretation is
incorrect.
20
Ferriero’s flawed understanding stems from his
misreading of a footnote in Insurance Brokerage that said it
would “invert[] the relationship specified by § 1962(c),” 618
F.3d at 372 n.69, for the nexus inquiry to ask whether “the
defendant was able to commit the predicate acts by means of .
. . his association with the enterprise,” id. (quoting Brandao,
539 F.3d at 53). Ferriero mistakenly reads our explanation to
mean that in those circumstances—that is, when a defendant
is able to commit racketeering by means of his association
with an enterprise—it can never satisfy the required
relationship between racketeering and the enterprise’s affairs.
That reading puts more weight on the word “invert”
than it can bear, and it ignores Insurance Brokerage’s
relevant holding. The Insurance Brokerage test asks whether
racketeering was a means of conducting the enterprise’s
affairs, but it does not foreclose satisfying the nexus when a
defendant’s position also enabled or facilitated the
racketeering. In fact, those two situations may well overlap.
For example, a crime boss can “[be] able to commit [murder]
by means of . . . his association with [his crime syndicate],”
see Brandao, 539 F.3d at 53, and simultaneously
“participate[] in the conduct of [his crime syndicate’s] affairs
. . . by means of . . . a pattern of [murder],” see Ins.
Brokerage, 618 F.3d at 372. We did not, in a footnote,
transform § 1962(c)’s application by ruling out an entire
category of cases that otherwise fall comfortably within the
statute. The statute examines the relationship between the
racketeering and the enterprise’s affairs. But the relationship
between the racketeering and the defendant’s association with
the enterprise may be relevant—and indeed sufficient—to
satisfy the required relationship between the racketeering and
the enterprise’s affairs.
21
That much is clear from Insurance Brokerage’s
relevant holding. There, in a case that evaluated a civil RICO
complaint at the pleading stage,11 we concluded that
§ 1962(c)’s nexus was not satisfied by allegations defendants
simply used an opportunity provided by a legitimate
enterprise—there, an industry group—to plot, discuss, or
otherwise facilitate predicate acts. Id. at 380–81. But we said
that if defendants “actually utilized [the industry group’s]
institutional machinery to formulate strategy and issue public
statements in aid of their [alleged racketeering acts],” id. at
381, it would plausibly imply the pattern of racketeering was
“one way they operated the enterprise,” id. at 381–82. The
allegations we determined could satisfy pleading plaintiffs’
nexus element contradict Ferriero’s nexus interpretation.
Ferriero’s interpretation would also contradict familiar
RICO examples and prior Third Circuit cases in which a
public official’s position facilitated predicate racketeering
acts.12 Ferriero’s reading would likewise run counter to the
11
Insurance Brokerage involved civil RICO claims, and
though the burden of proof differs in civil and criminal RICO
actions, the requisite nexus showing does not. See United
States v. Parise, 159 F.3d 790, 796 & n.5 (3d Cir. 1998).
12
See, e.g., United States v. Gillock, 445 U.S. 360, 362
(1980) (state senator’s office); United States v. McDade, 28
F.3d 283, 287 (3d Cir. 1994) (U.S. Congressman’s office,
office employees, and committee staff); United States v.
Woods, 915 F.2d 854, 855–56 (3d Cir. 1990) (City Council of
Pittsburgh); United States v. Bacheler, 611 F.2d 443, 450 (3d
Cir.1979) (Philadelphia Traffic Court); United States v.
22
Supreme Court’s explanation that “RICO . . . protects the
public from those who would unlawfully use an ‘enterprise’
(whether legitimate or illegitimate) as a ‘vehicle’ through
which ‘unlawful . . . activity is committed.’” Cedric Kushner
Promotions, Ltd. v. King, 533 U.S. 158, 164 (2001) (quoting
Nat’l Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 259
(1994)) (second alteration in original). Several other circuit
opinions apply standards that satisfy § 1962(c)’s nexus if the
enterprise facilitates racketeering.13 And Ferriero’s reading
Frumento, 563 F.2d 1083, 1089–90 (3d Cir. 1977)
(Pennsylvania Bureau of Cigarette and Beverage Taxes).
13
See, e.g., United States v. Vernace, 811 F.3d 609, 615 (2d
Cir. 2016), cert. denied, 137 S. Ct. 691 (2017) (“[P]redicate
acts must be . . . related to the enterprise . . . [such] that the
defendant was enabled to commit the offense solely because
of his position in the enterprise or his involvement in or
control over the enterprise’s affairs, or because the offense
related to the activities of the enterprise.” (citation and
quotation marks omitted)); United States v. Ramirez-Rivera,
800 F.3d 1, 21 (1st Cir. 2015), cert. denied, 136 S. Ct. 908
(2016) (“It suffices that the defendant was able to commit the
predicate acts by means of, by consequence of, by reason of,
by the agency of, or by the instrumentality of his association
with the enterprise.” (citation and quotation marks omitted));
Akin v. Q-L Investments, Inc., 959 F.2d 521, 533–34 (5th Cir.
1992) (“[The] nexus is established by proof that the defendant
has in fact committed the racketeering acts alleged, that the
defendant’s association with the enterprise facilitated the
commission of the acts, and that the acts had some effect on
the enterprise.”); United States v. Pieper, 854 F.2d 1020,
1026 (7th Cir. 1988) (“To establish the nexus required by
§ 1962(c) between the racketeering activity and the affairs of
23
makes little sense given precedent elsewhere that predicate
acts need not benefit the enterprise.14
We reiterate Insurance Brokerage’s statement that
racketeering must be one means by which the defendant
participates in the conduct of the enterprise’s affairs. As
noted, we believe there was sufficient evidence for a rational
juror to conclude Ferriero participated in the conduct of the
BCDO’s affairs by means of a pattern of bribery. We will
affirm Ferriero’s RICO conviction on grounds that the
evidence was sufficient to support the conviction’s nexus
element.
3.
Ferriero’s final sufficiency challenge contests his wire
fraud conviction. A person violates the federal wire fraud
statute by using interstate wires to execute “any scheme or
the enterprise, . . . the government must show that: (1) the
defendant committed the racketeering acts, (2) the defendant's
position in or relation with the enterprise facilitated
commission of the acts, and (3) the acts had ‘some effect’ on
the enterprise.”); see also United States v. Grubb, 11 F.3d
426, 439–40 (4th Cir. 1993) (stating it satisfied the nexus
element when a judge “physically used his judicial office . . .
[and] the prestige and power of the office itself” to commit
racketeering).
14
See, e.g., United States v. Godwin, 765 F.3d 1306, 1320–21
(11th Cir. 2014); United States v. Bruno, 383 F.3d 65, 84 (2d
Cir. 2004); Grubb, 11 F.3d at 439; United States v. Welch,
656 F.2d 1039, 1061–62 (5th Cir. Unit A 1981).
24
artifice to defraud, or for obtaining money or property by
means of false or fraudulent pretenses, representations, or
promises.” 18 U.S.C. § 1343. The jury found Ferriero guilty
of wire fraud based on Carrino’s July 9, 2008, email to
Cliffside Park CFO Frank Berardo. The jury concluded that
Carrino’s email to Berardo “intentionally fail[ed] to disclose
Joseph Ferriero’s financial interest in C3’s contract with the
borough of Cliffside Park.” The jury concluded Carrino’s
email amounted to executing “a scheme or artifice to defraud
the borough of Cliffside Park and to obtain money from the
borough of Cliffside Park by means of materially false and
fraudulent pretenses, representations, and promises.” Id. The
issue then is whether the evidence was sufficient for a rational
juror to conclude Carrino’s failure to disclose Ferriero’s C3
interest amounted to a materially false or fraudulent
misrepresentation.
Assessing whether a communication is fraudulent,
truthful, or otherwise is a highly contextual inquiry. See
United States v. Pearlstein, 576 F.2d 531, 535 (3d Cir. 1978)
(observing that in the inquiry into “whether [a scheme] [i]s
fraudulent in nature, there are no hard and fast rules of law to
apply”); see also Universal Health Servs. v. United States ex
rel. Escobar, 136 S. Ct. 1989, 2000 (2016) (concluding
disputed claims, though technically true, “were clearly
misleading in context”). Express falsehoods lie at fraud’s
core, but a fraudulent representation “need not be fraudulent
on its face,” Pearlstein, 576 F.2d at 535, nor must it
necessarily “involve affirmative misrepresentation,” Kehr
Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1415 (3d Cir.
1991). Rather, a fraudulent or false representation “may be
effected by deceitful statements of half-truths or the
concealment of material facts.” United States v. Bryant, 655
25
F.3d 232, 249 (3d Cir. 2011) (quoting United States v.
Olatunji, 872 F.2d 1161, 1167 (3d Cir. 1989)).
In Universal Health Services v. United States ex rel.
Escobar, the Supreme Court discussed the gray area “half-
truths” occupy in the context of fraud. See 136 S. Ct. at 2000.
In Escobar, the defendant health care provider submitted
Medicaid reimbursement claims without disclosing that the
underlying care did not comply with relevant regulations. Id.
at 1997–98. The issue was whether the submissions
amounted to “false or fraudulent claims” within the meaning
of the False Claims Act, 31 U.S.C. § 3729(a)(1)(A). Id. at
1995–96. The government invoked the common-law rule
“that, while nondisclosure alone ordinarily is not actionable,
‘[a] representation stating the truth so far as it goes but which
the maker knows or believes to be materially misleading
because of his failure to state additional or qualifying matter’
is actionable.” Id. at 1999 (quoting Restatement (Second) of
Torts § 529 (1976)). Defendant Universal Health invoked a
different common-law maxim, similar to Ferriero’s
contention here: “nondisclosure of legal violations is not
actionable absent a special ‘duty . . . to exercise reasonable
care to disclose the matter in question.’” Id. at 2000 (quoting
Restatement (Second) of Torts § 551(1)) (alteration in
original).
The Court resolved the claims “[fell] squarely within
the rule that half-truths—representations that state the truth
only so far as it goes, while omitting critical qualifying
information—can be actionable misrepresentations.”15 Id.
15
By way of illustration, the Escobar Court gave several
examples of half-truths actionable as misrepresentations. 136
S. Ct. at 2000. A “classic example” from contract law is “the
26
(footnote omitted). The claims were “clearly misleading in
context,” because anyone reading them “would probably—
but wrongly—conclude the clinic had complied with” the
underlying regulations. Id.
Here, Ferriero asserts the evidence was insufficient to
prove wire fraud because Berardo asked only who owned the
corporation, and no more. Ferriero contends the failure to
disclose his involvement was a mere omission, which does
not constitute a false representation unless a party has a duty
of disclosure based on “a fiduciary or similar special
relationship.” Appellant Br. at 39.
Ferriero primarily relies on our opinion in Kehr
Packages, Inc. v. Fidelcor, which involved a civil RICO
claim for which the predicate acts were alleged mail fraud.
926 F.2d at 1408. In a leveraged buyout, the purchasers
alleged bankers from the deal’s financier, Fidelity Bank,
promised a credit line the bankers never actually intended to
secure. Id. at 1410. When Kehr ultimately fell short on
working capital, those bankers had left Fidelity. Id. The loan
had been transferred to Thomas Donnelly, a vice-president
who Kehr believed had authority to secure the credit line, but
seller who reveals that there may be two new roads near a
property he is selling, but fails to disclose that a third
potential road might bisect the property.” Id. (citing Junius
Constr. Co. v. Cohen, 178 N.E. 672, 674 (N.Y. 1931)
(Cardozo, J.)). Another example would be a job applicant at
a local college listing “retirement” after previous jobs,
without disclosing “retirement” was a prison stint for bank
fraud. Id. (citing 3 Dan B. Dobbs et al., The Law of Torts
§ 682, pp. 702–03 & n. 14 (2d ed. 2011)).
27
who was actually in charge of protecting Fidelity’s interest in
the collateral for the initial loan. Id. Kehr’s management
repeatedly asked Donnelly about the line of credit, to which
he responded that he would review the matter and that Kehr
should draft a “plan of attack” demonstrating how its
financial situation could be improved. Id. Kehr eventually
ran out of working capital, at which point Donnelly revealed
he was actually with the asset-recovery group, mailed Kehr a
notice of default, and confessed judgment against the loan
collateral. Id. at 1410–11. The relevant issue was whether
Donnelly’s alleged actions amounted to fraud. Id. at 1416.
Relevant here, the Kehr plaintiffs alleged Donnelly
committed fraud when he failed to disclose he worked in
Fidelity’s asset-recovery group and lacked lending authority.
Id. We concluded that “none of Donnelly’s alleged acts or
omissions could be ‘reasonably calculated to deceive a person
of ordinary prudence and comprehension.’” Id. (quoting
Pearlstein, 576 F.2d at 535). The non-disclosure of
Donnelly’s job title, without more, could not amount to fraud.
Id. Donnelly never actually represented that he had lending
authority or that he would secure the funds. Id. His non-
disclosure could not “reasonably be said to be deceptive” and
there was therefore “no deceit []or fraud within the meaning
of the mail fraud statute.” Id.
Ferriero likens himself and Carrino to Donnelly, and
contends the non-disclosure of Ferriero’s C3 interest cannot
amount to deceit or fraud absent a “fiduciary-like duty to the
representatives or the people of Cliffside Park.” Appellant
Br. at 39. Some cases have required a fiduciary or other duty
to impose liability for non-disclosure, but those cases have
generally involved contexts where defendants made no actual
28
representation and instead faced potential liability for simply
staying silent.16 Here, there was an actual representation—
Carrino’s email of July 9, 2008—and the issue is whether
there was sufficient evidence for a rational juror to conclude
the representation, in context, was materially false and
fraudulent.
We conclude there was. The evidence showed
Cliffside Park’s leadership had concerns about the C3
contract and “who was involved with C3 Communications.”
The morning of July 9, 2008, Cliffside Park CFO Frank
Berardo called Carrino to “find out, number one, where is the
16
For example, in Chiarella v. United States, 445 U.S. 222
(1980), a securities fraud case, the Supreme Court confronted
the “legal effect of [a defendant’s] silence,” id. at 226,
relating to a stock transaction in which the defendant had
deduced the existence of a corporate takeover by virtue of his
work at the financial printer that drew up takeover-bid
announcements, id. at 224. “[S]ilence in connection with the
purchase or sale of securities may operate as fraud . . . [if
there exists] a duty to disclose arising from a relationship of
trust and confidence between parties to a transaction.” Id. at
230. Corporate insiders have a fiduciary obligation to
shareholders, and even “tippees” of inside information have
an obligation to disclose arising from their participation in the
insider’s fiduciary breach. Id. at 230 & n.12. But the print
employee—who was “a complete stranger”—lacked any role
as agent, fiduciary, or occupant of a position of company trust
or confidence. Id. at 232–33. Therefore, his nondisclosure of
information—that is, his “silence” during the securities
transaction—could not be the basis of fraud liability. Id. at
235.
29
contract, and who are the owners of this corporation.” Even
though Carrino was the corporation’s sole owner, he did not
answer Berardo’s questions, and replied he would answer
with an email instead. When he sent that email, the attached
C3 certificate of formation listed John Carrino as the
corporation’s only member or managing member. A rational
juror could have concluded that the email, in context, held out
to Cliffside Park officials that Carrino was the only individual
who stood to profit from Cliffside Park’s C3 contract. A
rational juror could have concluded the email, while true “so
far as it goes[,] . . . omitt[ed] critical qualifying
information”—namely, information that Ferriero was entitled
to 25 percent of C3’s Cliffside Park profits. See Escobar, 136
S. Ct. at 2000.
Whether a representation is false or fraudulent is a
contextual inquiry, see Pearlstein, 576 F.2d at 535, that a jury
is particularly well-suited to assess. Here, the jury heard
testimony from the parties involved and concluded the
omission in Carrino’s email amounted to a materially false
and fraudulent pretense or representation. We cannot say
there was insufficient evidence for a rational juror to reach
that conclusion.
B.
In his second set of challenges, Ferriero levels several
attacks—statutory and constitutional—against the validity of
his convictions based on violations of New Jersey’s bribery
statute.
1.
30
Ferriero’s first challenge posits Congress did not
intend political party officials to fall in the category of
individuals punishable for bribery as a RICO or Travel Act
predicate.17
On this point, Ferriero relies primarily on Perrin v.
United States, 444 U.S. 37 (1979). There, the Supreme Court
held the language “bribery . . . in violation of the laws of the
State in which committed” that appears in the Travel Act, 18
U.S.C. § 1952, includes commercial bribery laws and not just
common-law bribery limited to public officials, Perrin, 444
U.S. at 50. The Perrin petitioners were charged with
violating the Travel Act by using interstate facilities to
promote a commercial bribery scheme proscribed by
Louisiana law. Id. at 38–39. They maintained the Travel
Act’s use of “bribery” was confined to the common-law
17
Ferriero did not raise this issue before the District Court.
On appeal, Ferriero concedes the issue faces plain-error
review. The government states the issue at least faces plain-
error review, but also suggests Ferriero waived the argument
based on Federal Rule of Criminal Procedure 12, which
addresses claims the indictment fails to state an offense. See
Fed. R. Crim. P. 12(b)(3)(B)(v), (c)(3). We have not decided
the standard of review for Rule 12(b)(3) claims raised for the
first time on appeal, but courts of appeal that have applied the
rule have employed plain-error review. See United States v.
Soto, 794 F.3d 635, 652, 655 (6th Cir. 2015); United States v.
Sperrazza, 804 F.3d 1113, 1121 (11th Cir. 2015). Because
the parties did not brief the issue and because Ferriero’s
argument fails under any standard we might apply, we need
not address the standard of review for Rule 12(b)(3) claims
raised for the first time on appeal.
31
definition punishing only bribery of public officials, and
asserted their conduct was therefore not chargeable as a
federal offense. Id. at 41.
The Supreme Court rejected that argument and instead
concluded Congress intended a broader understanding of
bribery, which by 1961—the year of the Travel Act’s
passage—extended beyond the crime’s common-law
definition. Id. at 45. The Court observed that at early
common law, bribery extended only to the corruption of
judges, but by the nineteenth century had “expanded to
include the corruption of any public official and the bribery of
voters and witnesses as well.” Id. at 43 (citing James F.
Stephen, Digest of the Criminal Law 85–87 (1877)). By the
time Congress passed the Travel Act, fourteen states had
enacted commercial bribery laws. Id. at 44. And it was by
then commonplace for states to punish bribes paid to or
received by private individuals in more specific capacities,
including “agents, common carrier and telegraph company
employees, labor officials, bank employees, and participants
in sporting events.” Id.; see also id. at 44 & n.10 (listing
examples of state private-sphere bribery provisions).
Even though “bribery” as used in RICO and the Travel
Act clearly covers bribery of myriad private and public
persons, see id., Ferriero claims it cannot cover bribery of
political party officials. He asserts that at the time of those
laws’ passage, statutes punishing bribery of party officials
were not sufficiently widespread to have been incorporated
into “bribery” for the two federal statutes’ purposes. He
relies on Perrin for the proposition that both statutes therefore
exclude party officials from federal punishment.
32
We disagree. On our reading of Perrin, the Travel Act
and RICO incorporate a definition of bribery broad enough to
encompass bribes paid to or accepted by political party
officials. As Perrin pointed out, bribery laws already applied
to judges, public officials, voters, and witnesses as far back as
the nineteenth century. 444 U.S. at 43. If bribery within the
meaning of the Travel Act (and necessarily RICO) is broad
enough to likewise include commercial employees, agents,
labor officials, bank employees, and sporting-event
participants, id. at 43–44, then the term is also broad enough
to include political party officials. Indeed, bribery’s generic
understanding as explained in Perrin reasonably includes “all
relations which are recognized in a society as involving
special trust [that] should be kept secure from the corrupting
influence of bribery.” Id. at 45 (quoting Am. Law Inst.,
Model Penal Code § 223.10, pp. 113–17, Comments (Tent.
Draft No. 11, 1960)). We understand Perrin’s explanation of
bribery as extending to party officials who, like numerous
other private persons and public officials, occupy positions of
“special trust.” Id.; see State v. Schenkolewski, 693 A.2d
1173, 1185 (N.J. Super Ct. App. Div. 1997) (explaining that
New Jersey’s current bribery statute, like its predecessor, is
intended to “proscribe conduct . . . which ‘denigrates the
integrity of our public institutions’” (quoting State v. Ferro,
320 A.2d 177, 180 (N.J. Super. Ct. App. Div. 1974))); Ferro,
320 A.2d at 181 (describing New Jersey’s predecessor bribery
scheme as “penaliz[ing] those in an apparent position of trust
who would utilize their position or relationship to influence
some governmental activity o[r] public official”). Therefore,
we reject Ferriero’s assertion that party officials generally—
and him specifically—fall outside the ambit of either the
Travel Act or RICO.
33
2.
Ferriero’s final challenge asserts New Jersey’s bribery
statute is unconstitutionally vague and overbroad. Ferriero
raised these arguments before the trial court, and our review
is plenary. United States v. Dees, 467 F.3d 847, 853 (3d Cir.
2006).
A statute is unconstitutionally vague if it “fails to
provide people of ordinary intelligence a reasonable
opportunity to understand what conduct it prohibits.” United
States v. Amirnazmi, 645 F.3d 564, 588 (3d Cir.2011)
(internal quotation marks and citation omitted); see Skilling v.
United States, 561 U.S. 358, 412 (2010). For the criminal
context in particular, vagueness challenges “may be
overcome in any specific case where reasonable persons
would know their conduct puts them at risk of punishment
under the statute.” United States v. Moyer, 674 F.3d 192, 211
(2012) (citation, internal quotation marks, and alteration
omitted); see Holder v. Humanitarian Law Project, 561 U.S.
1, 20 (2010); Vill. of Hoffman Estates v. Flipside, Hoffman
Estates, Inc., 455 U.S. 489, 495 (1982). A criminal statute
therefore “need only give ‘fair warning’ that certain conduct
is prohibited.” San Filippo v. Bongiovanni, 961 F.2d 1125,
1136 (3d Cir. 1992) (quoting Colten v. Kentucky, 407 U.S.
104 (1972)).
Ferriero contends the statute’s vagueness arises from
several terms. First, he maintains the statute is vague because
it prohibits accepting “any benefit not authorized by law” as
consideration for a vote, recommendation, decision, or
exercise of discretion. N.J. Stat. Ann. § 2C:27–2. Ferriero
34
also takes issue with the phrase “on a public issue,” id.
§ 2C:27–2(a), because that phrase remains undefined.
We find no constitutional infirmity in the bribery
statute’s level of specificity. By proscribing acceptance of
“any benefit as consideration for a decision, opinion,
recommendation, vote or exercise of discretion,” id.
(emphasis added), the statute clarifies that the benefit must be
given in exchange for a “decision, opinion, recommendation,
vote or exercise of discretion” in favor of a particular
outcome. See Schenkolewski, 693 A.2d at 1185–86
(describing bribery scheme as paying money “in exchange for
a ‘promised’ or ‘definitive’ vote” by municipal committee so
as to “insure favorable action” on local development project);
see also MacDougall v. Weichert, 677 A.2d 162, 181 (N.J.
1996) (Wilentz, C.J., dissenting) (explaining the core of the
bribery statute as special interests paying “a public official to
control his vote”). The definition “any benefit not authorized
by law” narrows the statute further. For example, New Jersey
election law provides that county political party committees
may receive and disburse funds in order to maintain their
party organization, including for the purposes of hiring staff
and publicizing candidates and party organizations. See N.J.
Stat. Ann. § 19:5–5. We read New Jersey’s bribery statute as
sufficiently clear to give party chairs “a reasonable
opportunity to understand,” Amirnazmi, 645 F.3d at 588, they
may not accept payments from vendors in exchange for
urging party members in local decisionmaking bodies to buy
those same vendors’ products.
Ferriero also asserts the bribery statute is overbroad.
“In the First Amendment context, . . . a law may be
invalidated as overbroad if ‘a substantial number of its
35
applications are unconstitutional, judged in relation to the
statute’s plainly legitimate sweep.’” United States v. Stevens,
559 U.S. 460, 473 (2010) (quoting Washington State Grange
v. Washington State Republican Party, 552 U.S. 442, 449 n.6
(2008)).
We can find no applications (much less a substantial
number) of the bribery law that are unconstitutional. To be
sure, bribery laws occupy territory ancillary to the First
Amendment rights to associate and to petition the
government. See Eu v. San Francisco Cty. Democratic Cent.
Comm., 489 U.S. 214, 224 (1989) (“It is well settled that
partisan political organizations enjoy freedom of association
protected by the First and Fourteenth Amendments.”); E. R.R.
Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S.
127, 136–37 (1961) (implying that lobbying implicates First
Amendment petition rights). But New Jersey’s bribery law
does not punish legitimate First Amendment activity. It
punishes corrupt agreements in which party officials accept
payment in exchange for making a particular decision or
recommendation, expressing a particular opinion, or voting a
particular way. See N.J. Stat. Ann. § 2C:27–2 (covering
benefits exchanged in consideration for “a decision, opinion,
recommendation, vote or exercise of discretion”). Such
corrupt agreements do not enjoy First Amendment protection.
United States v. Williams, 553 U.S. 285, 297 (2008) (“Offers
to engage in illegal transactions are categorically excluded
from First Amendment protections.”). New Jersey’s bribery
statute only punishes party officials’ corrupt bargains, not
their exercise of associational or petition rights. We do not
think the application of New Jersey’s bribery statute in this
case was unconstitutionally vague.
36
C.
After Ferriero filed his opening brief with this Court,
the Supreme Court decided McDonnell v. United States, 136
S. Ct. 2355 (2015), in which the Court interpreted the federal
bribery statute, 18 U.S.C. § 201, and clarified that provision’s
definition of the term “official act.” In a supplemental brief,
Ferriero contends McDonnell weighs in favor of his statutory
and constitutional arguments. On our reading of McDonnell,
however, we find nothing in that opinion that changes the
outcome of this case.
McDonnell involved a public-corruption case against
former Virginia Governor Robert McDonnell. 136 S. Ct. at
2361. The case stemmed from McDonnell’s relationship with
Jonnie Williams, a Virginia businessman who sought state
universities’ help in researching health benefits of a tobacco-
based supplement his company developed. Id. at 2362. From
2009 to 2012, McDonnell accepted more than $175,000 from
Williams in the form of payments, loans, and gifts. Id. at
2362–64. During that same period, McDonnell helped
Williams in numerous ways, including events McDonnell
hosted and meetings he arranged with state officials.18 Id.
18
In particular, McDonnell introduced Williams to Dr.
William Hazel, Virginia’s Secretary of Health and Human
Resources; he sent Dr. Hazel proposed research protocol for
studies on Williams’s supplement; and he arranged a meeting
for Williams with Dr. Hazel’s aide. Id. at 2362–63.
McDonnell also hosted a lunch event for Williams’s company
at the Governor’s Mansion with a guest list that included
researchers from state universities. Id. at 2363. And at a
meeting with Virginia officials responsible for the state-
37
A jury convicted McDonnell of committing honest
services fraud and Hobbs Act extortion.19 Id. at 2364–65.
Those charges reflected an underlying theory that Williams’s
payments in exchange for McDonnell’s actions constituted
bribery.20 Id. at 2365. The parties agreed to define terms
within those charges by reference to the federal bribery
statute, 18 U.S.C. § 201. Id. As a result, both charges
required the government to prove McDonnell accepted
Williams’s loans, payments, and gifts in exchange for
committing, or agreeing to commit, an “official act” within
the meaning of § 201. Id. The government alleged
employee health plan, McDonnell, who took the supplement
himself, told the officials the pills “‘were working well for
him’ and ‘would be good for’ state employees.” Id. at 2364.
19
The indictment charged McDonnell with conspiracy to
commit honest services fraud, substantive charges of honest
services fraud, conspiracy to commit Hobbs Act extortion,
substantive Hobbs Act extortion, and making a false
statement. Id. at 2365; see 18 U.S.C. §§ 1343, 1349 (honest
services fraud); id. § 1951(a) (Hobbs Act extortion); id.
§ 1014 (false statement). The jury acquitted him of the false
statement charge. McDonnell, 136 S. Ct. at 2366.
20
The Supreme Court has construed the honest services fraud
statute as prohibiting “fraudulent schemes to deprive another
of honest services through bribes or kickbacks.” McDonnell,
136 S. Ct. at 2365 (quoting Skilling v. United States, 561 U.S.
358, 404 (2010)). The Hobbs Act proscribes obtaining the
property of another “under color of official right,” 18 U.S.C.
§ 1951(b)(2), which includes a “public official . . . ‘taking a
bribe,’” Evans v. United States, 504 U.S. 255, 260 (1992).
38
McDonnell had committed at least five “official acts,” which
included arranging meetings, hosting events, and
recommending Williams’s supplement to Virginia state
officials. Id. at 2365–66.
The issue in McDonnell arose from the jury
instructions’ explanation of the term “official act.” Id. at
2367. McDonnell had unsuccessfully requested that the court
qualify its instruction on “official act” by limiting that term to
actions and decisions on matters actually pending before the
state government.21 Id. The District Court declined to
include McDonnell’s requested qualification. Id. Instead, the
court followed the government’s proposed instruction, which
advised the jury that “official act” encompassed “‘acts that a
public official customarily performs,’ including acts ‘in
furtherance of longer-term goals’ or ‘in a series of steps to
exercise influence or achieve an end.’” Id. at 2366. Based on
those instructions, the jury convicted McDonnell, and the
Court of Appeals for the Fourth Circuit affirmed. Id.
The Supreme Court vacated McDonnell’s convictions,
id. at 2375, holding that “[s]etting up a meeting, talking to
21
Specifically, McDonnell had asked the trial court to explain
that “routine activity,” such as “arranging a meeting” or
“hosting a reception,” cannot alone amount to an official act,
because such routine acts “are not decisions on matters
pending before the government.” McDonnell, 136 S. Ct. at
2366 (quoting United States v. McDonnell, 792 F.3d 478, 513
(4th Cir. 2015)). He had also requested the court instruct the
jury that an official act requires an officeholder intend to
“influence a specific official decision the government actually
makes.” Id. (internal quotation marks and citation omitted).
39
another official, or organizing an event (or agreeing to do
so)—without more—does not [constitute] . . . an ‘official
act,’” id. at 2372. In doing so, the Court rejected the broad
definition of “official act” that the government proposed,
which would encompass “nearly any activity by a public
official.” Id. at 2367.
The bulk of that holding rested on the Court’s
interpretation of § 201. See id. at 2367–72. Section 201
defines “official act” 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.” 18
U.S.C. § 201(a)(3). Relying on traditional tools of statutory
interpretation, the Court determined that “a typical meeting,
call, or event . . . does not qualify as a ‘question’ or ‘matter’
under § 201(a)(3).” McDonnell, 136 S. Ct. at 2369. More
concrete governmental decisions could qualify as a pending
question or matter—namely, state officials’ decisions to study
the supplement, to allocate grant money for such studies, or to
cover the supplement in state-employee health insurance
plans. Id. at 2370. But for an “event, meeting, or speech . . .
related to a pending question or matter” to be an actual
“decision or action” on that pending question or matter, § 201
requires “something more”—that is, something like initiating
an actual study or pressuring another official to commit an
official act.22 Id.
22
According to the Court, “something more” could be a
decision or action “to initiate a research study—or . . . [to]
narrow[] down the list of potential research topics.” Id. at
2370. It would also qualify if a public office “use[d] his
40
The Court reinforced its interpretive conclusion by
invoking several constitutional concerns that the
government’s broad definition of “official act” would
implicate. First, the government’s definition could chill
interactions between public officials and their constituents
that are normal in a democracy. See id. at 2372.
“[C]onscientious public officials arrange meetings for
constituents, contact other public officials on their behalf, and
include them in events all the time,” id., and too broad a
definition of “official act” might dissuade constituents from
making campaign contributions or from conducting normal
activities like inviting officials “on their annual outing to the
ballgame,” id. The Court feared “citizens with legitimate
concerns might shrink from participating in democratic
discourse.” Id.
Second, a definition that encompassed “nearly any
activity by a public official,” id. at 2367, raised due process
concerns of vagueness, id. at 2373; see id. (“Under the
‘standardless sweep’ of the Government’s reading, public
officials could be subject to prosecution, without fair notice,
for the most prosaic interactions.” (quoting Kolender v.
Lawson, 461 U.S. 352, 358 (1983))). And finally,
“significant federalism concerns” weighed against a broad
interpretation of a federal statute that governed state and local
officials’ conduct. Id.; see id. (“[W]e decline to ‘construe the
official position to exert pressure on another official to
perform an ‘official act’ . . . [or] use[d] his official position to
provide advice to another official, knowing or intending that
such advice will form the basis for an ‘official act’ by another
official.” Id.
41
statute in a manner that leaves its outer boundaries ambiguous
and involves the Federal Government in setting standards’ of
‘good government for local and state officials.’” (quoting
McNally v. United States, 483 U.S. 350, 360 (1987))). These
constitutional concerns supported the Court’s decision to
reject the government’s broad definition in favor of a “more
constrained interpretation.” Id.
Nothing in McDonnell changes the outcome for
Ferriero in this case. Ferriero contends “McDonnell
reinforces [his] statutory construction arguments.” Appellant
Supp. Br. at 5. He analogizes the phrase “on a public issue,”
N.J. Stat. Ann. § 2C:27–2, and “official act,” 18 U.S.C.
§ 201(a)(3), to seemingly argue that “on a public issue”
should limit the bribery provision to pending agenda items
before a town council. First, McDonnell’s “more
constrained,” 136 S. Ct. at 2373, construction of “official act”
was primarily a product of the Court’s interpretive analysis of
that particular statute and the expansive jury instructions
given by the District Court. Although the statutes in
McDonnell and here both involve bribery, we see no reason
for transplanting the conclusions in McDonnell that stem
solely from the Court’s application of general statutory-
construction principles to the particular statute at issue in that
case.
As for the Court’s admonitions of the “significant
constitutional concerns,” id. at 2372, raised by the
government’s position in McDonnell, those concerns do not
exist here. New Jersey’s bribery statute is narrower than the
broad interpretation of “official act” the McDonnell Court
42
rejected.23 That broad interpretation would have
encompassed “nearly any activity by a public official.” Id. at
2367. New Jersey’s statute requires the paid-for decision,
opinion, recommendation, vote, or exercise of discretion be
on a public issue or in a public election. See N.J. Stat. Ann.
§ 2C:27–2(a). Likewise, we read the New Jersey provision as
proscribing bribes paid in exchange for party officials
deciding or voting a certain way, giving a particular opinion
or recommendation, or exercising discretion in favor of a
particular outcome. See Part III.B.1, supra. We do not think
New Jersey’s citizens will “shrink from participating in
democratic discourse,” McDonnell, 136 S. Ct. at 2372,
because the state’s bribery law prohibits quid-pro-quo
arrangements in which money is paid “in exchange for a
‘promised’ or ‘definitive,’” Schenkolewski, 693 A.2d at
1185–86, decision, opinion, recommendation, or vote.
The other constitutional concerns in McDonnell
involved vagueness and matters of federalism. 136 S. Ct. at
2373. As noted, we do not believe New Jersey’s bribery
statute is unconstitutionally vague, see Part III.B.2, supra, nor
does it involve the concerns about vagueness presented by the
government’s position in McDonnell. And this case lacks the
federalism concerns present in McDonnell. McDonnell
involved a congressionally written standard that governed the
conduct of state officials. Though this case applies a federal
statute to a nonfederal, local party official, it applies a
23
As noted, that statute prohibits “accept[ing] or agree[ing] to
accept . . . [a]ny benefit as consideration for a decision,
opinion, recommendation, vote or exercise of discretion of a
public servant, party official or voter on any public issue or in
any public election.” N.J. Stat. Ann. § 2C:27–2.
43
standard from a New Jersey statute written by New Jersey
legislators. It simply does not “‘involve[] the Federal
Government in setting standards’ of ‘good government for
local and state officials.’” McDonnell, 136 S. Ct. at 2373
(quoting McNally, 483 U.S. at 360).
IV.
For the foregoing reasons, we will affirm Ferriero’s
judgments of conviction, forfeiture, and sentence.
44