     10-3891-cr
     United States v. Botti

 1                     UNITED STATES COURT OF APPEALS
 2
 3                             FOR   THE   SECOND CIRCUIT
 4                    ____________________________________
 5
 6                               August Term, 2011
 7
 8        Argued:     May 2, 2012                  Decided:      March 28, 2013
 9
10                            Docket No. 10-3891-cr
11                    ____________________________________
12
13                            UNITED STATES      OF   AMERICA,
14
15                                                                        Appellee,
16
17                                          —v.—
18
19                                    JAMES BOTTI
20
21                                                  Defendant-Appellant.
22                     ___________________________________
23
24     Before: SACK and RAGGI, Circuit Judges, and KOELTL, District
25                                Judge.*
26
27           Defendant James Botti was convicted of honest services

28   mail fraud after a jury trial in the District of Connecticut

29   (Charles S. Haight, Jr., Judge).              See 18 U.S.C. §§ 1341 and

30   1346.    In this appeal from the judgment entered on September

31   20, 2010, Botti argues that the District Court committed

32   reversible error when it used a jury instruction on honest

33   services mail fraud that allowed the jury to find Botti guilty


     * The Honorable John G. Koeltl, of the United States District
     Court for the Southern District of New York, sitting by
     designation.



                                           -1-
 1   of that crime without finding a bribery or kickback scheme, in

 2   contravention of the Supreme Court’s decision in Skilling v.

 3   United States, 130 S. Ct. 2896 (2010).    While the jury

 4   instruction was error, it does not merit reversal because

 5   bribery was the only theory of honest services mail fraud

 6   available to the jury based on the arguments and evidence at

 7   trial.    Therefore, we affirm the judgment of the District

 8   Court.

 9           Affirmed.

10   ______________

11   GEORGE W. GANIM, JR., The Ganim Law Firm, P.C., for Defendant-
12   Appellant James Botti.
13
14   RICHARD J. SCHECHTER AND RAHUL KALE, Assistant United States
15   Attorneys, (Sandra S. Glover on the brief) for Michael J.
16   Gustafson, Acting United States Attorney for the District of
17   Connecticut, for Appellee United States of America.
18   ______________

19   John G. Koeltl, District Judge:
20
21           Defendant James Botti was convicted of honest services

22   mail fraud after a jury trial in the District of Connecticut

23   (Charles S. Haight, Jr., Judge).    See 18 U.S.C. §§ 1341 and

24   1346.    In this appeal from the judgment entered on September

25   20, 2010, Botti argues that the District Court committed

26   reversible error when it used a jury instruction on honest

27   services mail fraud that allowed the jury to find Botti guilty

28   of that crime without finding a bribery or kickback scheme, in




                                   -2-
 1   contravention of the Supreme Court’s decision in Skilling v.

 2   United States, 130 S. Ct. 2896 (2010).   While the jury

 3   instruction was error, it does not merit reversal because

 4   bribery was the only theory of honest services mail fraud

 5   available to the jury based on the arguments and evidence at

 6   trial.

 7        Therefore, we AFFIRM the judgment of the District Court.

 8                             BACKGROUND

 9        On November 6, 2008, a grand jury in the District of

10   Connecticut returned a seven-count indictment against Botti

11   charging (i) one count of conspiracy in violation of 18 U.S.C.

12   § 371 to commit mail fraud in violation of 18 U.S.C. §§ 1341

13   and 1346; (ii) one count of bribery of a public official in

14   violation of 18 U.S.C. § 666(a)(2); (iii) one count of

15   scheming to obtain money and property and to defraud the

16   citizens of Shelton, Connecticut of the right to honest

17   services by mail fraud in violation of 18 U.S.C. §§ 1341 and

18   1346; (iv) one count of conspiracy in violation of 18 U.S.C.

19   § 371 to structure transactions with domestic financial

20   institutions contrary to 31 U.S.C. §§ 5324(a)(3) and 5324(d);

21   (v) one substantive count of such structuring in violation of

22   31 U.S.C. §§ 5324(a)(3) and 5324(d); and (vi) and (vii) two

23   counts of making false statements to the Internal Revenue

24   Service in violation of 18 U.S.C. § 1001(a)(2).   The



                                -3-
 1   indictment also included a forfeiture allegation in connection

 2   with the structuring counts.

 3        Prior to trial, the District Court granted the

 4   defendant’s motion to sever the indictment and ordered that

 5   the conspiracy to commit mail fraud, bribery, and mail fraud

 6   counts—Counts One, Two, and Three—be tried separately from the

 7   conspiracy to structure, structuring, and false statement

 8   counts—Counts Four through Seven.    Separate redacted

 9   indictments were prepared for each trial.

10        On November 10, 2009, a jury found Botti guilty of

11   conspiracy to structure and structuring.    The jury found him

12   not guilty of the two false statement counts.

13        On April 1, 2010, a separate jury found Botti guilty of

14   honest services mail fraud, as charged in Count Three of the

15   original and redacted indictments.   On the verdict sheet, the

16   jury answered “yes” to the statement: “James Botti engaged in

17   a scheme or artifice to deprive the citizens of Shelton of the

18   intangible right of honest services of their public official

19   or officials, by utilizing or causing the United States mails

20   to be used for the purpose of executing that scheme or

21   artifice.”   The jury was unable to agree on whether an object

22   of the mail fraud scheme was also “to obtain money or property

23   by means of materially false or fraudulent pretenses,

24   representations or promises . . . .”    The jury was also unable



                                 -4-
 1   to reach a verdict on the conspiracy count and the bribery

 2   count, and the District Court declared a mistrial on those

 3   counts and on the money and property prong of the mail fraud

 4   count.

 5        On September 17, 2012, Botti was sentenced principally to

 6   a 72-month term of imprisonment on the honest services mail

 7   fraud count and to concurrent sentences of 60 months on the

 8   conspiracy to structure and structuring convictions, followed

 9   by concurrent three-year terms of supervised release.

10   Judgment was entered on September 20, 2010.

11        On this appeal from the judgment of conviction, Botti

12   challenges only his conviction on the honest services mail

13   fraud count and only on the basis of the District Court’s

14   allegedly erroneous jury instruction.

15        The mail fraud conspiracy, bribery, and substantive mail

16   fraud counts arose from Botti’s alleged provision of corrupt

17   payments and other benefits to public officials in Shelton,

18   Connecticut where he worked as a real estate developer.     The

19   bribery count alleged that in June 2006, Botti provided over

20   $5,000 in things of value to “Public Official #1,” identified

21   at trial as the Mayor of Shelton, with the intent to influence

22   that official to use his position and authority to assist

23   Botti in obtaining approval from Shelton’s Planning and Zoning

24   Commission for a commercial development project at 828



                                -5-
 1   Bridgeport Avenue in Shelton (“the 828 Project”).   The mail

 2   fraud count alleged: (i) a scheme to obtain money and property

 3   and (ii) a scheme to deprive the citizens of Shelton of the

 4   intangible right of honest services of their public officials.

 5   The alleged fraudulent scheme to obtain money and property

 6   relied on allegations that Botti obtained approval for $6.5

 7   million in financing for the 828 Project from a financial

 8   institution, later shown to be NewAlliance Bank.    That

 9   financing depended on approval of the 828 Project by the

10   Planning and Zoning Commission, which Botti allegedly had

11   obtained fraudulently by, among other means, directing

12   employees and persons affiliated with his business to attend a

13   public hearing before the Commission to speak in favor of

14   Botti’s application without disclosing their affiliations with

15   Botti.   In support of the scheme to defraud the citizens of

16   Shelton of the honest services of their public officials, the

17   indictment alleged a scheme beginning in or about 2002 in

18   which Botti provided bribes to the Mayor of Shelton and to

19   other Shelton public officials to secure approval for Botti’s

20   commercial development projects.

21        Before trial, while Skilling v. United States, 130 S. Ct.

22   2896, was pending before the Supreme Court, Botti moved to

23   dismiss the mail fraud count to the extent that it depended on

24   the deprivation of the intangible right to honest services



                                 -6-
 1   under 18 U.S.C. § 1346.    That statute provides: “For the

 2   purposes of this chapter, the term ‘scheme or artifice to

 3   defraud’ includes a scheme or artifice to deprive another of

 4   the intangible right of honest services.”    18 U.S.C. § 1346.

 5   Botti argued that the statute was unconstitutionally vague.

 6   In opposition to the motion, the Government argued that Botti

 7   “could quite easily understand that his conduct in bribing and

 8   rewarding public officials with intent that they use their

 9   office to benefit him was prohibited conduct proscribed by

10   section 1346,” and that “federal courts had uniformly

11   construed the mail fraud statute to cover the situation where

12   public officials received bribes and kickbacks thereby

13   depriving the citizenry of their ‘intangible rights’ to good

14   and honest government.”    Gov’t Resp. to Def.’s Mot. to Dismiss

15   at 5.     The District Court denied Botti’s motion.

16           At trial, the Government’s theory of honest services mail

17   fraud was that Botti made corrupt payments and provided other

18   corrupt benefits to Shelton public officials with the intent

19   to influence those officials and thereby secure approval for

20   his real estate development projects.    In its opening

21   statement, the Government explained its theory of the case as

22   follows: “At the end of this trial, you will be asked to

23   decide if James Botti engaged in acts of corruption by bribing

24   public officials with the intent to influence them so that



                                   -7-
 1   they would think of James Botti’s interest, rather than the

 2   public interest.”

 3        The Government’s honest services mail fraud theory

 4   alleged a prolonged effort by Botti to corrupt Shelton public

 5   officials.   The Government elicited testimony at trial

 6   regarding a history of payments made and benefits given by

 7   Botti to Shelton’s Mayor with the intent to influence the

 8   Mayor in the exercise of his official duties.    This included

 9   testimony that: Botti had paid for a Florida vacation for the

10   Mayor and his family; Botti had made payments to cover the

11   costs of repairs on the Mayor’s house; Botti had significantly

12   overpaid the Mayor for a Christmas party that Botti held at a

13   restaurant owned by the Mayor; and Botti had provided other

14   services to the Mayor without charge including use of Botti’s

15   backhoe, removing furniture from the Mayor’s house, storing

16   the Mayor’s car in Botti’s maintenance garage, as well as

17   hiring the Mayor’s brother as a favor to the Mayor.

18        The Government did not limit its theory of honest

19   services mail fraud to bribery of the Mayor.    The Government

20   also argued that Botti provided corrupt payments and benefits

21   to Shelton Planning and Zoning Commission officials to obtain

22   approval for the 828 Project.     At trial, the Government

23   presented evidence that Botti had submitted plans for the 828

24   Project to the Shelton Planning and Zoning Commission.       The



                                 -8-
 1   Government offered testimony that, after submitting his plans,

 2   Botti became aware that he lacked the votes to obtain approval

 3   for the 828 Project from the Planning and Zoning Commission,

 4   which led him to provide Shelton’s Mayor with a $50,000 bribe

 5   in exchange for which the Mayor would use his influence with

 6   the Planning and Zoning Commission to secure approval for the

 7   828 Project.1   There was also evidence that, after receiving

 8   $50,000 from Botti, the Mayor had urged members of the

 9   Planning and Zoning Commission to approve the 828 Project.

10        The Government also offered testimony that Botti had

11   provided benefits directly to members of the Planning and

12   Zoning Commission who had voted in favor of the 828 Project.

13   Botti provided $150 gift certificates to two members of the

14   Planning and Zoning Commission who voted in favor of the 828

15   Project and to another commissioner who provided assistance in

16   obtaining approval of the 828 Project.   Botti also paid about

17   $2000 for a Christmas party at a restaurant owned by one of

18   the members of the Planning and Zoning Commission who voted in

19   favor of the 828 Project.

20        During its summation, the Government argued that there

21   were two prongs of the mail fraud alleged in the indictment:



     1
       This incident also served as evidence in support of the
     bribery count on which the jury ultimately could not reach a
     verdict.



                                 -9-
 1   “The first prong, he intended to deprive the citizens of

 2   Shelton of the honest services of their public officials.    He

 3   also engaged in a mail fraud to deprive NewAlliance Bank of

 4   millions of dollars in loan proceeds.”   The Government

 5   summarized for the jury the evidence of the history of bribes

 6   that Botti had paid to the Mayor of Shelton and to other

 7   Shelton officials in exchange for favorable treatment.     Based

 8   on this pattern of behavior, the Government argued, “James

 9   Botti thinks this is how you do business in Shelton; you

10   grease the wheel. . . .   James Botti thinks you have to pay to

11   get things done.”

12        With respect to the mail fraud scheme to obtain money and

13   property from NewAlliance Bank, the Government focused on the

14   misrepresentations that allegedly led the Planning and Zoning

15   Commission to approve the 828 Project and thereby satisfy a

16   condition for financing approval from the bank.   The

17   Government argued, “Botti’s scheme to defraud was also an

18   effort to make money for himself.   He wanted the millions of

19   dollars NewAlliance Bank had waiting for him, if he could just

20   get [Planning and Zoning Commission] approval.”   As evidence

21   of the materially false representations connected with this

22   mail fraud allegation, the Government pointed to testimony

23   that Botti had sent Greg Fracassini and Dan Witkins to testify

24   in favor of the 828 Project before the Planning and Zoning



                                -10-
 1   Commission in June 2006 and instructed them “to lie about

 2   their association with him.”    The Government argued that this

 3   testimony was highly influential in securing the Planning and

 4   Zoning Commission’s approval of the 828 Project, which was a

 5   condition precedent to Botti’s securing the multi-million

 6   dollar financing from NewAlliance Bank.

 7        The Government’s proposed instruction on the honest

 8   services mail fraud count specified that its sole theory of

 9   honest services fraud was bribery.   The Government’s proposed

10   jury instruction provided:

11        A government official who uses his or her public
12        position for self-enrichment breaches the duty of
13        honest service owed to the public and the
14        government.   So, for instance, a public official
15        who accepts a bribe or corrupt payment breaches
16        the duty of honest, faithful, and disinterested
17        service.     While outwardly appearing to be
18        exercising independent judgment in his or her
19        official work, the public official instead has
20        been paid privately for his or her public
21        conduct.   Thus, the public is not receiving the
22        public official’s honest and faithful service to
23        which it is entitled.
24
25             The Government alleges that defendant JAMES
26        BOTTI engaged in a scheme to defraud the citizens
27        of Shelton, Connecticut of the intangible right
28        to the honest services of its public officials by
29        providing benefits to such officials with intent
30        to influence such officials. Where there is a
31        stream of benefits arranged by the payor to favor
32        a public official, the Government need not
33        demonstrate   that  any   specific  benefit   was
34        received by the public official in exchange for a
35        specific official act.     In other words, when
36        payments are made by a payor to a public official
37        with the intent to retain that official’s



                                  -11-
 1        services on an “as needed” basis so that when the
 2        opportunity presents itself that public official
 3        will take specific official action on the payor’s
 4        behalf, that constitutes a breach of the public
 5        official’s duty of honest services.   Previously,
 6        in Request #34, I defined for you the definition
 7        of a “bribe” and you may refer to that definition
 8        in considering whether defendant JAMES BOTTI
 9        engaged in a scheme to defraud the public of its
10        intangible right to the honest services of its
11        public officials.
12
13   Request #34, the request relating to the § 666 bribery

14   charge, defined a bribe as “a corrupt payment that a

15   person provides to a public official with the intent to

16   influence the official in the performance of his or her

17   public duties.”

18        At the charge conference, Botti’s counsel stated that he

19   was not comfortable with the Government’s proposed instruction

20   on honest services fraud because “it seems to be so skewed to

21   the allegations here. . . .   It is not, I don’t think, a

22   generic definition of theft of honest services.   It is a

23   description of theft of honest service as alleged in this

24   case.”   Botti’s attorney ultimately did not object to the

25   instruction, did not offer alternative wording when given the

26   opportunity, and stated that he would defer to the District

27   Court regarding the jury instruction.

28        The District Court began its charge to the jury by

29   handing out copies of the redacted indictment and reading most

30   of it to the jury.   The District Court instructed the jury on



                                -12-
 1   the bribery charge as the Government had requested, and read

 2   the relevant statute to the jury.   The District Court defined

 3   the elements of the offense of bribery as follows:

 4        First, at the time alleged in the indictment
 5        . . . Public Official 1, was an agent of the city of
 6        Shelton, Connecticut; second, that the City of
 7        Shelton received federal benefits in excess of
 8        $10,000 in a one-year period; third, that defendant
 9        gave or agreed to give or offered something of value
10        to [Public Official 1]; fourth, that the defendant
11        acted corruptly with the intent to influence or
12        reward [Public Official 1] with respect to a
13        transaction of the City of Shelton; fifth, that the
14        value of the transaction to which the payment
15        related was at least $5,000.
16
17        Turning to the honest services mail fraud count, the

18   District Court read the allegations in the indictment and the

19   relevant statutory provisions to the jury.   The District Court

20   then explained the elements:

21        First, that the defendant devised a scheme or
22        artifice. There are two types of schemes charged in
23        Count Three of the indictment. One is a scheme or
24        artifice   for    obtaining money  or   property   by
25        materially     false    and  fraudulent    pretenses,
26        representations or promises, as alleged in the
27        indictment.
28
29        The other is a scheme or artifice to deprive the
30        citizens of Shelton of the intangible right of the
31        honest services of their public officials as alleged
32        in the indictment.
33
34        Second element: That the defendant knowingly and
35        willfully participated in the scheme or artifice,
36        with knowledge of its fraudulent nature and with
37        specific intent.
38




                                -13-
 1        Third: That in execution of that scheme or artifice,
 2        the Defendant used or caused the use of the mails,
 3        as specified in the indictment.
 4
 5    The District Court provided a more truncated explanation of

 6   honest services than the charge sought by the Government.   The

 7   District Court instructed the jury as follows:

 8        A public official or local government employee
 9        owes   a    duty   of   honest,   faithful,   and
10        disinterested service to the public and to the
11        government that he or she serves.      The public
12        relies on officials of the government to act for
13        the public interest not for their own enrichment.
14        A government official who uses his or her public
15        position for self-enrichment breaches the duty of
16        honest service owed to the public and to the
17        Government.
18
19        So, for instance, a public official who accepts a
20        bribe or corrupt payment [breaches] the duty of
21        honest, faithful and disinterested service, while
22        outwardly     appearing    to     be    exercising
23        independen[ce] in his or her official work, the
24        public official instead has been paid privately
25        for his or her public conduct. Thus, the public
26        is not receiving the public official’s honest and
27        faithful service to which it is entitled.
28
29   Defense counsel did not object to the instruction.

30        The jury returned a guilty verdict on the honest services

31   mail fraud count.   The jury was unable to reach a verdict on

32   the mail fraud count based on deprivation of money or

33   property.

34        After trial, Botti moved for a judgment of acquittal

35   pursuant to Federal Rule of Criminal Procedure 29 and for a

36   new trial pursuant to Federal Rule of Criminal Procedure 33,




                                -14-
 1   arguing that the evidence of honest services mail fraud was

 2   insufficient to support a conviction.    In his motion for a

 3   judgment of acquittal, Botti argued that none of the testimony

 4   relating to bribery of the Mayor of Shelton could be

 5   considered in support of his conviction because the jury had

 6   not voted to convict Botti of bribery.    Botti argued that the

 7   remaining evidence of bribes of Planning and Zoning Commission

 8   officials was insufficient to support a conviction of honest

 9   services fraud.

10        After the Supreme Court issued its opinion in Skilling,

11   130 S. Ct. 2896, Botti submitted a supplemental memorandum in

12   support of his motion for a judgment of acquittal, which

13   argued that the jury charge and verdict form left open the

14   possibility that the jury could have convicted Botti of honest

15   services mail fraud on a non-bribery theory in contravention

16   of the Supreme Court’s holding in Skilling.    Botti claimed

17   that the indictment was defective insofar as it did not

18   “specifically allege that the scheme used to commit honest

19   services fraud was bribery”; instead, it “indicat[ed] a

20   general theory of honest services mail fraud, namely, that

21   defendant contrived a scheme or artifice to defraud by means

22   of fraudulent pretenses or misrepresentations.”    Botti argued

23   that the Government’s proposed instruction—with which defense

24   counsel had expressed discomfort at the charge conference—



                               -15-
 1   would have complied with Skilling because it specified that

 2   the Government’s theory of honest services mail fraud was

 3   bribery.     However, he claimed that the instruction actually

 4   given to the jury did not comply with Skilling because it

 5   conflated “general self-enrichment” with “actual bribery.”

 6   Botti argued that the jury charge was defective because it

 7   “did not limit self-enrichment to bribery as required by

 8   Skilling, but rather referred to bribery as illustrative.”

 9        The District Court denied Botti’s motions for a judgment

10   of acquittal and for a new trial.     The District Court found

11   that there was “ample evidence that Botti extended numerous

12   favors to several Shelton public servants for the purpose of

13   obtaining in return favorable action on his development

14   applications, particularly the 828 Project, in derogation of

15   the Shelton citizenry’s right to their public servants’ honest

16   services.”    The District Court rejected Botti’s argument that

17   the jury’s failure to return a verdict on the bribery charge

18   necessarily meant that the evidence of honest services fraud

19   was insufficient to support a guilty verdict.     The District

20   Court first noted that in Yeager v. United States, 557 U.S.

21   110 (2009), the Supreme Court had instructed courts not to

22   attribute any meaning to the failure to return a verdict.

23   Furthermore, the District Court found that the evidence




                                  -16-
 1   produced at trial was sufficient to support Botti’s conviction

 2   for honest services mail fraud.

 3        With respect to Botti’s objection to the jury charge

 4   based on Skilling, the Court determined:

 5             There is no substance to this argument.
 6        Botti nowhere suggests what this alternative,
 7        constitutionally    impermissible     theory   of
 8        wrongdoing might be.     That is not surprising,
 9        since there is no evidence in the record of any
10        sort of wrongdoing other than Botti’s bribery of
11        public officials.   The indictment did not charge
12        any alternative theory.    Neither the government
13        nor the defendant argued any other theory at
14        trial.   Neither the jury charge nor the verdict
15        form suggests any other theory.     There were no
16        facts, evidence or testimony presented at trial
17        that could reasonably support or give rise to an
18        alternative theory.    Botti suggests none.    To
19        conclude that the jury might have convicted the
20        Defendant on some theory of honest services mail
21        fraud other than the bribery theory suggested in
22        the jury charge would require pure speculation on
23        the Court’s part, and an assumption that the jury
24        acted in an unreasonable manner in contriving
25        some grounds for conviction other than the
26        obvious one clearly supported by the record.
27
28   Accordingly, the District Court denied the post-trial motions.

29   This appeal followed.

30                              DISCUSSION

31                                  I.

32        The first issue is what standard of review applies to

33   Botti’s claim of error.   Generally, the propriety of jury

34   instructions is a matter of law that is reviewed de novo.

35   United States v. Bahel, 662 F.3d 610, 634 (2d Cir. 2011).    “A




                                -17-
 1   jury instruction is erroneous if it misleads the jury as to

 2   the correct legal standard or does not adequately inform the

 3   jury on the law.”   Id. (quoting United States v. Bok, 156 F.3d

 4   157, 160 (2d Cir. 1998)) (internal quotation marks omitted).

 5        If the defendant objected to an erroneous jury

 6   instruction at trial and raises the same claim of error on

 7   appeal, a harmless error standard of review applies.   See,

 8   e.g., United States v. George, 266 F.3d 52, 58 (2d Cir. 2001),

 9   vacated in part on other grounds, 386 F.3d 383 (2d Cir. 2004).

10   Under this standard of review, a conviction will be affirmed

11   only “if it is clear beyond a reasonable doubt that a rational

12   jury would have found the defendant guilty absent the error.”

13   United States v. Mahaffy, 693 F.3d 113, 136 (2d Cir. 2012)

14   (quoting United States v. Kozeny, 667 F.3d 122, 130 (2d Cir.

15   2011)) (internal quotation marks omitted).

16        If the defendant did not object to an erroneous jury

17   instruction before the jury retired to consider its verdict, a

18   plain error standard of review applies.   See Johnson v. United

19   States, 520 U.S. 461, 465-66 (1997) (citing Fed. R. Crim. P.

20   30); Bahel, 662 F.3d at 634.   Under this standard of review,

21   the Court of Appeals has discretion to reverse only if the

22   instruction contains “(1) error, (2) that is plain, and (3)

23   that affect[s] substantial rights.”   Johnson, 520 U.S. at 467

24   (quoting United States v. Olano, 507 U.S. 725, 732 (1993))



                                -18-
 1   (internal quotation marks omitted and alteration in original).

 2   If those three conditions are met, a court may exercise its

 3   discretion to correct the error only if the error “seriously

 4   affect[ed] the fairness, integrity or public reputation of

 5   judicial proceedings.”   Id. at 467 (quoting Olano, 507 U.S. at

 6   732) (internal quotation marks omitted).

 7        Botti argues that he objected to the jury instruction,

 8   and therefore, a traditional harmless error standard of review

 9   should apply.   This argument is without merit.   Defense

10   counsel’s objection to the proposed instruction at the charge

11   conference was not based on the instruction’s failure

12   expressly to limit honest services fraud to bribery and

13   kickback schemes.   Rather, Botti’s counsel objected to the

14   instruction because it was “so skewed to the allegations

15   here,” and it was not “a generic description of theft of

16   honest services.”   In short, Botti objected because the

17   proposed instruction was too focused on bribery as the means

18   for committing honest services fraud, not because it lacked

19   that focus.   These circumstances come close to a waiver of any

20   appellate challenge to the instruction for failing to limit

21   honest services mail fraud to bribery.   See United States v.

22   Quinones, 511 F.3d 289, 321-23 (2d Cir. 2007) (discussing true

23   waiver).   In any event, because Botti did not object at trial




                                -19-
 1   on the grounds raised in this appeal, harmless error review

 2   does not apply.

 3          Nor is modified plain error review warranted here.    See

 4   United States v. Viola, 35 F.3d 37, 42 (2d Cir. 1994) (placing

 5   the burden on the Government “to show that plain error in

 6   light of a supervening decision did not affect substantial

 7   rights”).   The Supreme Court’s decision in Johnson v. United

 8   States, 520 U.S. 461, called into question the modified plain

 9   error standard of review that this Court established in Viola.

10   In Johnson, the defendant had been charged with making a false

11   material declaration under oath before a grand jury in

12   violation of 18 U.S.C. § 1623.     520 U.S. at 463.   The District

13   Court instructed the jury that materiality was a question for

14   the judge to decide, and the defense did not object.     Id. at

15   464.   The trial judge ultimately found that the statements

16   were material, and the jury returned a verdict of guilty.     Id.

17   After Johnson’s conviction, but before her appeal to the Court

18   of Appeals, the Supreme Court decided United States v. Gaudin,

19   515 U.S. 506 (1995), which established that a jury must decide

20   materiality.   Johnson, 520 U.S. at 464.   When Johnson’s case

21   reached the Supreme Court, the Court applied plain error

22   review without mentioning modified plain error review.      Id. at

23   466-67.   The Court found that the failure to instruct the jury

24   that materiality was an element of the offense was error and



                                 -20-
 1   that it was plain.   Id. at 467-68.   The Court did not decide

 2   the third element—whether the forfeited error affected

 3   substantial rights—because the Court determined that the

 4   satisfaction of the first three factors only gave the Court

 5   discretion to correct the error if the error seriously

 6   affected the fairness, integrity, or public reputation of the

 7   judicial proceedings.   Id. at 468-70.   The Court never placed

 8   the burden of proof on the Government.   See id. at 470.

 9   Indeed, the Court cautioned against any unwarranted expansion

10   of or creation of any exceptions to the plain error rule in

11   Rule 52(b) of the Federal Rules of Criminal Procedure.     Id. at

12   466.   In the final step of its analysis, the Court evaluated

13   whether the defendant had presented a plausible argument that

14   the error in the charge had affected the fairness, integrity,

15   or public reputation of the proceedings.   The Court concluded

16   that the error did not seriously affect “the fairness,

17   integrity or public reputation of judicial proceedings” and

18   affirmed the judgment of the Court of Appeals sustaining the

19   conviction.   Id. at 470.

20          Without deciding whether Johnson overruled Viola, this

21   Court has frequently declined to reach the question of whether

22   the modified plain error standard of review continues to apply

23   when there has been a supervening change in the law after a




                                 -21-
 1   conviction.2   See, e. g., United States v. Nouri, No. 09-3627-

 2   CR, 2013 WL 780918, at *6 n.2 (2d Cir. Mar. 4, 2013); Bahel,

 3   662 F.3d at 634; Henry, 325 F.3d 93, 100 n.4 (2d Cir. 2003);

 4   United States v. Outen, 286 F.3d 622, 639 n.18 (2d Cir.

 5   2002).3   In this case, it is also unnecessary to decide

 6   whether the modified plain error standard of review survived

 7   Johnson because the rationale animating the modified plain

 8   error standard of review—that the defendant should not have to

 9   show prejudice from an error when the defendant did not

10   contribute to the error and had no basis to object to the

11   error—does not apply.   See Viola, 35 F.3d at 42-43.   In Viola,

12   this Court explained that the purpose of the modified plain

13   error standard of review was to avoid insisting on “an

14   omniscience on the part of defendants about the course of the



     2
       In Mahaffy, 693 F.3d 113, this Court applied modified plain
     error analysis. Id. at 136. However, in Mahaffy, the
     defendant had objected at trial on the grounds raised in his
     appeal. Id. at 122. Therefore, it would not have been unfair
     to place the burden on the Government to show that the error
     had not prejudiced the defendant.
     3
       Under similar circumstances, other Courts of Appeals apply
     the traditional plain error standard of review. See, e.g.,
     United States v. Pelisamen, 641 F.3d 399, 404 (9th Cir. 2011)
     (applying a plain error standard of review in a case where
     “there were no legal grounds for challenging the instructions
     at the time they were given, but such legal grounds ha[d]
     since arisen due to a new rule of law arising between the time
     of conviction and the time of appeal”); see also id. at 404-05
     (collecting cases and explaining that no Court of Appeals
     other than the Court of Appeals for the Second Circuit has
     adopted the modified plain error standard of review).



                                 -22-
 1   law that we do not have as judges.”   35 F.3d at 42.   At

 2   Botti’s trial, the Government sought an instruction that

 3   plainly would have established bribery as the only basis for

 4   the honest services mail fraud charge alleged in this case.

 5   Botti’s counsel resisted that instruction because it was “so

 6   skewed” to the allegations against Botti.   Modified plain

 7   error review should not apply when it is the defendant’s

 8   discomfort with the proposed jury instruction that contributed

 9   to the error about which the defendant now complains.

10   Accordingly, in this case, the instruction will be reviewed

11   under the traditional plain error standard.

12                                II.

13        Under a plain error standard of review, if this Court

14   finds that the jury instruction (i) was error; (ii) that the

15   error was plain; and (iii) that the error affected substantial

16   rights, then this Court (iv) has discretion to correct the

17   error, “but [it] is not required to do so.”   See Olano, 507

18   U.S. at 735; see also Fed. R. Crim. P. 52(b).   It is well

19   established that “the discretion conferred by Rule 52(b)

20   should be employed in those circumstances in which a

21   miscarriage of justice would otherwise result.”   Olano, 507

22   U.S. at 736 (quoting United States v. Young, 470 U.S. 1, 15

23   (1985)) (internal quotation marks omitted).   Accordingly, if

24   the first three conditions are met, this Court should exercise



                               -23-
 1   its discretion to correct the error only if it “seriously

 2   affect[ed] the fairness, integrity or public reputation of

 3   judicial proceedings.”   Johnson, 520 U.S. at 470 (alteration

 4   in original and citation omitted).

 5                                   A.

 6        In this case, the failure of the jury instruction to

 7   specify that the Government was required to prove honest

 8   services mail fraud by a bribery or kickback scheme was plain

 9   error, satisfying the first two Olano factors.   Error is

10   deviation from a legal rule, unless the rule has been waived

11   by “intentional relinquishment or abandonment of a known

12   right.”    Olano, 507 U.S. at 732-33 (quoting Johnson v. Zerbst,

13   304 U.S. 458, 464 (1938)).    Error is plain if it is clear or

14   obvious.   Olano, 507 U.S. at 734.   “Whether an error is

15   ‘plain’ is determined by reference to the law as of the time

16   of appeal.”   United States v. Garcia, 587 F.3d 509, 520 (2d

17   Cir. 2009) (quoting United States v. Gamez, 577 F.3d 394, 400

18   (2d Cir. 2009) (per curiam)) (quotation marks omitted); see

19   also Henderson v. United States, 133 S. Ct. 1121, 1130-31

20   (2013) (holding that regardless of whether a legal question

21   was settled or unsettled at the time of trial, a court of

22   appeals is bound to apply the law as it exists at the time of

23   appeal).




                                  -24-
 1        The Supreme Court held in Skilling that the honest

 2   services fraud encompassed by 18 U.S.C. § 1346 must be limited

 3   to schemes involving bribes or kickbacks in order to avoid due

 4   process concerns.   See 130 S. Ct. at 2931.     Botti correctly

 5   argues that the District Court’s jury instruction on honest

 6   services mail fraud failed to anticipate and, therefore, to

 7   satisfy this requirement because it employed language broad

 8   enough to encompass a non-bribery theory, which the Supreme

 9   Court found unconstitutional in Skilling.      This Court has held

10   that, after Skilling, it is error for a district court to fail

11   to limit honest services fraud to bribery or kickback schemes

12   in the jury instructions.   See, e.g., United States v. Bruno,

13   661 F.3d 733, 740 (2d Cir. 2011).       Because the District

14   Court’s instruction did not specify that only bribes or

15   kickbacks could support an honest services mail fraud

16   conviction, it was plainly erroneous.

17                                      B.

18        In this case, however, Botti has failed to establish that

19   the plain error in the charge affected his substantial rights.

20   When evaluating the effect of an allegedly erroneous jury

21   instruction, the jury charge must be read as a whole.      See

22   generally United States v. Allah, 130 F.3d 33, 42 (2d Cir.

23   1997) (collecting cases).   This Court has reversed in cases

24   tried before Skilling and decided on appeal after Skilling



                                 -25-
 1   where the Government argued a non-bribery or -kickback scheme

 2   theory of honest services mail fraud, or where the Government

 3   intertwined an alternative theory with a bribery or kickback

 4   scheme theory.   See, e.g., Mahaffy, 693 F.3d at 136; Bruno,

 5   661 F.3d at 739-40; see also United States v. Hornsby, 666

 6   F.3d 296, 306-07 (4th Cir. 2012); United States v. Wright, 665

 7   F.3d 560, 570-72 (3d Cir. 2012); United States v. Riley, 621

 8   F.3d 312, 321-24 (3d Cir. 2010).    In contrast, in cases tried

 9   before Skilling and decided on appeal after Skilling where the

10   jury instruction did not specify that a guilty verdict could

11   be returned only if the jury found that the defendant engaged

12   in a bribery or kickback scheme, but the evidence would

13   support only a bribery or kickback scheme theory, this Court

14   has affirmed.    See, e.g., Nouri, 2013 WL 780918, at *5-*8; see

15   also United States v. Andrews, 681 F.3d 509, 521 (3d Cir.

16   2012); United States v. Spellissy, 438 F. App’x 780, 783-84

17   (11th Cir. 2011) (affirming the denial of a petition for a

18   writ of error coram nobis); see generally Andrews, 681 F.3d at

19   521-28 (collecting cases).    This is such a case.

20        Botti is correct that, after Skilling, a jury instruction

21   must require the jury to find that the defendant participated

22   in honest services mail fraud by way of a bribery or kickback

23   scheme.   However, it does not follow that reversal is

24   necessary in every case in which the District Court erred by



                                  -26-
 1   failing to give that instruction.      Viewing the erroneous jury

 2   instruction in this case in light of the charge as a whole and

 3   in the context of proceedings in which deprivation of honest

 4   services by bribery was the only theory that the evidence

 5   would support and the only theory that the Government argued

 6   at trial, the District Court’s failure to limit honest

 7   services mail fraud to a bribery or kickback scheme did not

 8   affect Botti’s substantial rights.

 9                                     i.

10        Bribery is the only theory of honest services fraud that

11   the Government presented in the indictment or argued at trial,

12   and the District Court’s instructions on the mail fraud charge

13   reflected that.   The District Court began its instructions by

14   reading most of the indictment to the jury.     The indictment

15   detailed extensive allegations of Botti’s providing public

16   officials with money and other benefits in order to secure

17   approval for certain development projects.     The District Court

18   instructed the jury on the bribery count, during which it

19   defined a bribe as “a corrupt payment that a person provides

20   to a public official with the intent to influence the official

21   in the performance of his or her public duties.”      The District

22   Court then directed the jury to Count Three of the indictment,

23   the mail fraud charge, read the allegations and the relevant

24   statutory provisions, and explained the elements of the



                                -27-
 1   offense.   Although the District Court did not explain that

 2   bribery is the only theory that can support a conviction of

 3   honest services mail fraud, bribery is the only example it

 4   provided of how the Government could prove the honest services

 5   deprivation prong of mail fraud.    This is not a case where the

 6   charge was interwoven with an alternative theory of how the

 7   public could have been deprived of the honest services of its

 8   officials such as by a conflict of interest theory, see, e.g.,

 9   Bruno, 661 F.3d at 739-40.

10        Botti argues that “[t]he District Court’s instruction

11   allowed the payment of a bribe to be but one of many paths

12   rather than the only path” to conviction of honest services

13   mail fraud.   He suggests several potential alternative

14   theories that could have supported his conviction.   These

15   theories are divorced from the context of the trial and cannot

16   plausibly explain the jury’s guilty verdict.

17        Botti argues that the definition of “scheme or artifice”

18   that the District Court provided allowed the jury to convict

19   him of honest services mail fraud based simply on a finding of

20   fraud, deception, or misrepresentation.   The District Court

21   defined “scheme or artifice” as “a plan for the accomplishment

22   of an object,” and “a scheme to defraud” as,

23        [A]ny plan . . . or course of action to obtain money
24        or property or the intangible right of honest
25        services by means of materially false or fraudulent



                                  -28-
 1        pretenses, representations, and promises reasonably
 2        calculated to deceive persons of average prudence
 3        . . . a plan to deprive another of money or property
 4        or of the intangible right to honest services by
 5        trick, deceit, deception, or swindle.
 6
 7   The District Court provided these definitions within the

 8   larger explanation that the scheme or artifice element of

 9   honest services mail fraud required “a scheme or artifice to

10   deprive the citizens of Shelton of the intangible right of the

11   honest services of the officials as alleged in the

12   indictment.”

13        In context, the jury could not have understood this

14   definition as anything more than a basic definition of a

15   scheme or artifice to defraud.     The jury could not have

16   understood the definition as providing an independent theory

17   of honest services fraud.   Mail fraud requires both a scheme

18   or artifice to defraud and an object of that fraud.

19   Pasquantino v. United States, 544 U.S. 349, 355 (2005).      At

20   trial, the Government presented two theories of mail fraud,

21   each with distinct objects: (i) a scheme to obtain money

22   fraudulently from NewAlliance Bank, and (ii) a scheme to

23   deprive the citizens of Shelton of the honest services of

24   their public officials by bribery.    The victim of the scheme

25   to obtain money fraudulently was NewAlliance Bank, whereas the

26   victims of the honest services fraud scheme were the citizens

27   of Shelton.    The District Court made this clear when, at



                                 -29-
 1   several points in the charge it clarified that, with respect

 2   to the honest services charge, it was the public, or the

 3   “citizens of Shelton,” who were the victims of the scheme or

 4   artifice to defraud, and the District Court specified that the

 5   trick or swindle involved in a bribe was that the bribee,

 6   “while outwardly appearing to be exercising independen[ce] in

 7   his or her official work . . . instead has been paid privately

 8   for his or her public conduct.”   Because the jury charge

 9   cannot be read as endorsing, or even suggesting, a theory of

10   honest services mail fraud that is predicated on a

11   freestanding or amorphous swindle or trick, this theory cannot

12   explain the jury’s verdict.

13        Botti also argues that the jury could have convicted him

14   of honest services mail fraud based on the failure to disclose

15   the business relationship he had with Fracassini and Witkins

16   who testified on Botti’s behalf before the Planning and Zoning

17   Commission.   Therefore, Botti argues that the jury instruction

18   permitted the jury to convict him based on his deception of

19   the Planning and Zoning Commission.   However, the Government

20   did not suggest to the jury that sending employees to a public

21   meeting to advocate for Botti’s interests without disclosing

22   that they worked for Botti constituted honest services mail

23   fraud.   The deception of the Planning and Zoning Commission

24   was used as an instance of the misrepresentations that Botti



                                -30-
 1   had used to obtain approval for the 828 Project from the

 2   Planning and Zoning Commission and, as a result, financing

 3   from NewAlliance Bank.

 4        Moreover, the jury could not have convicted Botti of

 5   honest services mail fraud on the basis of the deception of

 6   the Planning and Zoning Commission consistent with the

 7   District Court’s instructions.    The honest services fraud

 8   instruction was based upon the premise that “[a] public

 9   official or local government employee owes a duty of honest,

10   faithful, and disinterested service to the public and to the

11   government that he or she serves.”   Thus, the District Court

12   clarified, the public may be deprived of that right when an

13   official “uses his or her public position for self-enrichment”

14   by, for example, taking a bribe, because the official is no

15   longer “exercising independen[ce] in his or her official

16   work,” and the public is not receiving the public official’s

17   “honest and faithful service to which it is entitled.”    This

18   definition of honest services mail fraud requires that a

19   public official be working dishonestly, unfaithfully, or

20   interestedly.   A public official who has been deceived could

21   not reasonably fall within such a definition.

22        Botti also suggests that the jury could have relied on

23   evidence of self-enrichment without bribery to satisfy the

24   honest services prong of mail fraud.   However, the District



                                -31-
 1   Court’s use of the term “self-enrichment” in the jury

 2   instruction plainly encompassed bribery.    There is no

 3   reasonable view of the evidence that would support a finding

 4   that the public officials enriched themselves other than

 5   through the receipt of bribes.    In this case, the Government

 6   did not offer any alternative theory of self-enrichment, such

 7   as through a conflict of interest scheme.   See, e.g., Bruno,

 8   661 F.3d at 740.

 9        In two footnotes in his briefs to this Court, Botti

10   suggests that the jury could have convicted him of honest

11   services mail fraud based on his provision to Shelton public

12   officials of “gifts and benefits” that did not constitute

13   bribes.   This cursory argument is not a basis for reversal.

14   “It is a settled appellate rule that issues adverted to in a

15   perfunctory manner, unaccompanied by some effort at developed

16   argumentation, are deemed waived.   This rule has particular

17   force where an appellant makes an argument only in a

18   footnote.”   Niagara Mohawk Power Corp. v. Hudson River-Black

19   River Regulating Dist., 673 F.3d 84, 107 (2d Cir. 2012)

20   (quoting Tolbert v. Queens Coll., 242 F.3d 58, 75 (2d Cir.

21   2001)) (quotation marks omitted).

22        Moreover, a gifts or benefits theory of honest services

23   mail fraud is inconsistent with the trial record.   The

24   indictment charged and the trial record supported that the



                                -32-
 1   gifts Botti gave to the Shelton public officials were in

 2   exchange for favorable actions that they took for him.    With

 3   respect to the Mayor, the indictment charged and the evidence

 4   supported that Botti provided benefits to the Mayor of Shelton

 5   from about 2002 to 2006 and that he “expected that the

 6   benefits he provided to [the Mayor of Shelton] would result in

 7   favorable treatment for Botti and his construction projects.”

 8   Such a pattern of behavior is sufficient to establish bribery:

 9        [I]n order to establish the quid pro quo essential
10        to proving bribery, the government need not show
11        that the defendant intended for his payments to be
12        tied to specific official acts (or omissions).
13        Rather, bribery can be accomplished through an
14        ongoing course of conduct, so long as evidence shows
15        that the favors and gifts flowing to a public
16        official [are] in exchange for a pattern of official
17        actions favorable to the donor.
18
19   Bahel, 662 F.3d at 635 (internal quotations marks and

20   citations omitted).

21        The Government also contended and the evidence supported

22   that the benefits that Botti gave to the members of the

23   Planning and Zoning Commission were made in exchange for their

24   support for the 828 Project.   The gifts to the members of the

25   Planning and Zoning Commission were charged in the portion of

26   the redacted indictment under the heading, “Botti Provides

27   Things of Value to Public Officials For Their Assistance.”

28   The Government’s Request to Charge explained its theory of

29   honest services fraud as alleging the following:



                               -33-
 1        [Botti] engaged in a scheme to defraud the citizens
 2        of Shelton, Connecticut of the intangible right to
 3        the honest services of its public officials by
 4        providing benefits to such officials with intent to
 5        influence such officials.   Where there is a stream
 6        of benefits arranged by the payor to favor a public
 7        official, the Government need not demonstrate that
 8        any specific benefit was received by the public
 9        official in exchange for a specific official act.
10
11   It was unnecessary for the District Court “to use the magic

12   words ‘corrupt intent’ or ‘quid pro quo’ to effectively charge

13   a jury on bribery.”     See Bahel, 662 F.3d at 635.

14        Botti’s alternative theories are contrary to the only

15   theory of honest services mail fraud that the Government

16   actually presented to the jury and that the Government asked

17   the Court to explain as its theory.    Accordingly, these

18   alternative theories do not demonstrate that Botti’s

19   conviction was based on a non-bribery theory of honest

20   services mail fraud.4



     4
       Botti also argues that the jury’s failure to return a guilty
     verdict on the bribery charge demonstrates that it could not
     have convicted him of honest services mail fraud on a bribery
     theory. This argument is without merit.
          The Supreme Court has instructed lower courts not to
     attempt to divine the meaning of a hung count when analyzing a
     unanimous verdict on another count. See Yeager, 557 U.S. at
     121-22. Botti attempts to distinguish Yeager on the basis
     that it involved a hung jury and an acquittal, whereas this
     case involves a hung jury and a conviction. However, the
     reasoning in Yeager was not as limited as Botti suggests. Id.
     at 120-22. The Court explained that “conjecture about
     possible reasons for a jury’s failure to reach a decision
     should play no part in assessing the legal consequences of a
     unanimous verdict that the jurors did return.” Id. at 122.



                                  -34-
 1                                     ii.

 2        Finally, assuming that we had discretion to reverse the

 3   conviction, we would not exercise that discretion in this case

 4   because the error did not “seriously affect the fairness,

 5   integrity or public reputation of judicial proceedings.”

 6   Johnson, 520 U.S. at 470 (alteration omitted).   The Government

 7   sought a proper instruction that would have obviated the error

 8   in the jury charge and the defense demurred because that

 9   charge hewed too closely to the actual proof in the case.    The

10   evidence of the bribe-based honest services mail fraud was

11   overwhelming and there was no other plausible theory presented

12   to the jury.   On this record, it cannot be said that the error

13   seriously affected the fairness, integrity, or public

14   reputation of the judicial proceedings.



          Botti asks this Court to intuit the jury’s logic in
     returning a conviction on the honest services mail fraud
     charge by analyzing the bribery charge on which the jury was
     unable to reach a verdict. Yeager forecloses this approach.
     See, e.g., Hornsby, 666 F.3d at 305 n.4 (rejecting the
     argument that if “bribes were the dominant theory used to
     convict [the defendant], then the jury would have found him
     guilty of the counts that deal directly with facts supporting
     [the defendant]’s receipt of money”).
          Moreover, this would be a particularly inappropriate case
     to find an exception to Yeager. The honest services mail
     fraud charge of which Botti was convicted charged a scheme
     from in or about 2002 to defraud the citizens of Shelton of
     the honest services of the Mayor of Shelton and of other
     Shelton public officials. Unlike the bribery count, it was
     not limited to a single instance of providing money to the
     Mayor of Shelton in or about June 2006.



                                -35-
1                             CONCLUSION

2        We have considered all of the arguments of the parties.

3   To the extent not specifically addressed above, they are

4   either moot or without merit.    For the reasons explained

5   above, we AFFIRM the judgment of the District Court.




                              -36-
