Tuesday, December 04, 2018

Bridgegate Defendants: Court upholds wire fraud, and theft or bribery concerning programs receiving federal funds convictions, reverses deprivation of civil rights convictions.

U.S. v. Baroni, 17-1817, 2018 WL 6175668 (3d Cir. Nov. 27, 2018)

Defendants Baroni and Kelly were charged with conspiracy to obtain by fraud, knowingly convert, or intentionally misapply property of an organization receiving federal benefits, 18 U.S.C. § 371, and the substantive offense, § 666(a)(1)(A); conspiracy to commit wire fraud, § 1349, and two counts of the substantive offense, § 1343; and conspiracy against civil rights, § 241, and the substantive offense, § 242. 

The charges stemmed from “Bridgegate”—the much covered scheme to impose gridlock on the Borough of Fort Lee, New Jersey, after Fort Lee’s mayor refused to endorse the 2013 reelection bid of then-Governor Chris Christie.  Under the guise of conducting a “traffic study,” Baroni and Kelly, among others, conspired to limit Fort Lee motorists’ access to the George Washington Bridge, over a period of four days, causing severe traffic jams and safety issues.

A jury convicted on all counts.  Defendants challenged only their various convictions.  The Court upheld the wire fraud, (§§ 1349 and 1343), and theft or bribery concerning programs receiving federal funds, (§§ 371 and 666), convictions, but reversed the deprivation of civil rights convictions, (§§ 241 and 242).  In brief, the Court held as follows:

I.  The evidence was sufficient to support the jury's finding that defendants obtained, by false or fraudulent pretenses, property of Port Authority of New York and New Jersey as required to support convictions for wire fraud.  The Port Authority had financial interest in its public employees’ time and wages, 14 Port Authority employees were used to realign traffic, Port Authority was required to pay toll operators and other employees overtime and other compensation, and defendants accepted compensation for time spent conspiring to defraud the Port Authority.  Time and wages of public employees of Port Authority of New York and New Jersey constituted a form of intangible property for purposes of wire fraud statute.  Included within the meaning of money or property, for purposes of federal wire fraud statute, is the victim’s right to control that money or property.

II.  The evidence was sufficient to support the jury’s finding that defendants fraudulently obtained, knowingly converted, or intentionally misapplied property, as required to support conviction for theft or bribery concerning programs receiving federal funds.  18 U.S.C.A. § 666.  Defendants forced the Port Authority of New York and New Jersey, which was interstate agency created by Congressional consent that received substantial federal funding, to pay unnecessary overtime to toll workers and divert well-paid professional staff away from legitimate Port Authority activities.

III.  The district court’s error in instructing the jury under § 666 that it did not need to know of the specific property defendants fraudulently obtained, knowingly converted, or intentionally misapplied, was harmless; there was overwhelming evidence that defendants knew of the property fraudulently obtained or intentionally misapplied, including the work of 14 of defendant’s subordinates who were public employees of the New York and New Jersey Port Authority.

IV.  The phrase “unjustifiable and wrongful,” as used in instruction to jury that “to intentionally misapply money or property means to intentionally use money or property of the Port Authority knowing that the use is unauthorized or unjustifiable or wrongful,” § 666, was not overbroad or ambiguous in trial for theft or bribery concerning programs receiving federal funds; other instruction in court’s charge foreclosed possibility that jury convicted defendants for lawful but imprudent conduct.

V.  The scope of statutes criminalizing violation or deprivation of any right or privilege secured by the Constitution or laws of the United States is limited to rights fairly warned of, having been made specific by the time of the charged conduct. 18 U.S.C.A. §§ 241, 242.  A due process right to intrastate travel was not a right that was fairly warned of in 2013, and thus defendants could not be convicted under statutes criminalizing violation or deprivation of any right or privilege secured by the Constitution or laws of the United States based on alleged violation of municipality's residents' right to intrastate travel in 2013. 

Circuit affirms denial of motion to suppress, but finds "possession in connection with another felony" enhancement applied in error

U.S. v. Hester, No. 16-3570, 2018 WL 6259314 (3d Cir. Nov. 30, 2018)

In this felon-in-possession of a firearm case, the Third Circuit affirmed the denial of a motion to suppress, but held that application of a sentencing enhancement for possession in connection with another felony was erroneous. 

Hester was a passenger in a car parked illegally in front of a corner store in Newark, New Jersey, at approximately 11:40 p.m.  Police observed the driver enter the corner store, which had a known history of narcotics sales.  When the driver returned to the car, a marked police car pulled up along the driver's side of the car, and an unmarked car pulled up behind it. The officers approached both sides of the car on foot, one approached the driver’s side window; three others approached and stood at the passenger's side of the vehicle.

The driver admitted that she did not have a driver’s license and that the car was not registered in her name.  Hester stated “We're good, officer. I can drive.” Hester then began to rise and exit the vehicle but, as he did so, one of the officers claimed to hear the sound of a gun hitting the floorboards, and another testified to seeing Hester drop a gun.  Hester attempted to run, but was apprehended. A gun was located at the foot of the passenger's seat. 

Hester was indicted for being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1).  He moved to suppress the firearm, arguing that the police had seized him the moment that they parked, with lights flashing, alongside and behind the car, without reasonable suspicion. The district court denied the motion, concluding that the interaction with the police up until Hester's attempt to flee was a consensual encounter.  In the alternative, the District Court determined that, even if it assumed Hester had been seized when the officers boxed in the vehicle, such seizure was a Terry stop supported by reasonable suspicion because the car was illegally parked in front of a known narcotics front late at night in a high crime area.
Hester was convicted following a bench trial.  At sentencing, the parties disputed the applicability of a four-level enhancement for possession of a firearm in connection with another felony. U.S.S.G. § 2K2.1(b)(6)(B).  The Government sought the enhancement on the grounds that Hester's cousin had previously used the same firearm in an unrelated crime and had given it to Hester for disposal.  In support of this theory, the Government cited recordings of calls Hester made to relatives from jail in which he expressed regret that he had still been in possession of the firearm when he encountered the officers, having intended to dispose of it. The Government argued that this was tantamount to evidence tampering, a separate felony under New Jersey law. See N.J. Stat. Ann. § 2C:28-6.

The district court applied the enhancement, but then varied downward by four offense levels—the exact number added by the enhancement. Hester appealed both the denial of the motion to suppress and his sentence.

The Third Circuit held that the initial police contact in this case constituted a seizure rather than a consensual encounter, noting that when the driver reentered the idling parked car, it was no longer capable of simply driving away from the scene due to the change in circumstances signaled by the surrounding police cruisers.   Coupled with the subsequent directive to turn off the engine, the driver could not have felt free to drive away, and Hester likewise was not free to ignore the police presence and go about his business.  Further, the Court held that Hester submitted to the officers’ show of authority when he waited in the vehicle prior to and during questioning, before his momentary attempt to flee.  Finally, the Court found the officers had reasonable suspicion to detain the vehicle, including Hester, having seen “a vehicle illegally idling near a crosswalk, in front of a store with a known history of narcotics-related activity, close to midnight, in a high-crime area of Newark.” 

Regarding the Guidelines enhancement for use or possession “in connection with another felony offense,” U.S.S.G. § 2K2.1(b)(6)(B), the Court concluded it did not apply for two reasons.  First, the government did not establish by a preponderance that Hester had committed New Jersey evidence tampering, which requires “alteration, loss, or destruction of the evidence itself.”  Second, the district court incorrectly interpreted the provision, as a matter of law, in finding that the possession itself occurred “in connection with” a subsequent felony offense, when there was no facilitation of a secondary offense – the two alleged offenses were coextensive.


Bridgegate Defendants: Court upholds wire fraud, and theft or bribery concerning programs receiving federal funds convictions, reverses deprivation of civil rights convictions.

U.S. v. Baroni , 17-1817, 2018 WL 6175668 (3d Cir. Nov. 27, 2018) Defendants Baroni and Kelly were charged with conspiracy to obtain by fr...