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.