15-2351(L)
United States v. Vincent Tabone & Malcom A. Smith


                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT
                                                    SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 20th day of October, two thousand sixteen.
PRESENT: JON O. NEWMAN,
         GERARD E. LYNCH,
         CHRISTOPHER F. DRONEY
                    Circuit Judges,

----------------------------------------------------------------------
UNITED STATES OF AMERICA,
                                        Appellee,

                              v.                                          Nos. 15-2351(L)
                                                                               15-2433(Con)

DANIEL J. HALLORAN, JOSEPH J. SAVINO, JOSEPH
DESMARET, NORAMIE JASMIN,
                                        Defendants,


VINCENT TABONE, MALCOLM A. SMITH,
                                        Defendants-Appellants.
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FOR DEFENDANTS-APPELLANTS:                                    ERIC NELSON, Staten Island, New York,
                                                              for Vincent Tabone.

                                                              MARC FERNICH, New York, New York,
                                                              for Malcolm A. Smith.
                                                          1
    FOR APPELLEE:                                            HAGAN SCOTTEN, (Karl Metzner, on the
                                                             brief), for Preet Bharara, United States
                                                             Attorney for the Southern District of
                                                             New York.

       Appeal from July 17, 2015 and July 30, 2015 judgments of the United States
District Court for the Southern District of New York (Karas, J.).

    UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgments of the district court are AFFIRMED.

        Defendants Vincent Tabone and Malcolm A. Smith appeal their convictions and
sentences of 42 months’ and 84 months’ incarceration. Their sentences were imposed
following a jury verdict of guilty on: (1) conspiracy—under 18 U.S.C. § 371—to commit
bribery, in violation of the Travel Act, and honest services wire fraud; (2) honest services
wire fraud and attempt to commit honest services wire fraud, in violation of 18 U.S.C.
§§ 1343, 1346, 1349, and 2; (3) Travel Act violations, under 18 U.S.C. §§ 1952(a)(3);
(4) Hobbs Act extortion charges against Smith, under 18 U.S.C. § 1951; and (5) witness
tampering charges against Tabone, under 18 U.S.C. § 1512. These charges were in
connection with allegations that Smith bribed several New York City Republican Party
officials—including Tabone—in an attempt to receive the “Wilson-Pakula Certificates”1
necessary to seek the Republican nomination for Mayor of New York City. Tabone and
Smith challenge their convictions. They claim that both the applicable New York bribery
laws and the honest services fraud statute are unconstitutionally vague. They also argue
that the Travel Act and honest services fraud prosecutions violate principles of
federalism. In addition, Tabone challenges the sufficiency of the evidence supporting his
honest services fraud and witness-tampering convictions, while Smith challenges the
sufficiency of the evidence supporting his Hobbs Act conviction. We assume the parties’
familiarity with the underlying facts and procedural history of this case.

        1. New York Penal Law §§ 200.45 and 200.50 Vagueness

       The Travel Act punishes individuals for using interstate or foreign commerce to
further unlawful activity. 18 U.S.C. § 1952(a). “Unlawful activity” includes “bribery . . .
in violation of the laws of the State in which committed or of the United States.” Id.
§ 1952(b)(2). The defendants’ Travel Act charges were premised on use of interstate
commerce to commit bribery in violation of New York Penal Law §§ 200.45 and 200.50.
Defendants challenge those state laws as unconstitutionally vague.


1
  A Wilson-Pakula Certificate permits a Democrat to run for Mayor of New York City as a Republican if at least
three of the City’s five Republican county committees consent. See N.Y. Elec. Law § 6-120(3).

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       Section 200.45 prohibits “confer[ring], or offer[ing] or agree[ing] to confer, any
money or other property upon a public servant or a party officer upon an agreement or
understanding that some person will or may be appointed to a public office or designated
or nominated as a candidate for public office.” N.Y. Penal Law § 200.45. Section 200.50
prohibits “[a] public servant or party officer” from “solicit[ing], accept[ing], or agree[ing]
to accept any money or property from another person” based upon such an agreement or
understanding. N.Y. Penal Law § 200.50. The term “party officer” is defined as “a person
who holds any position or office in a political party, whether by election, appointment, or
otherwise.” N.Y. Penal Law § 200.40.

       This Court previously addressed a virtually identical vagueness challenge made by
Daniel J. Halloran, who was convicted as part of the same Wilson-Pakula scheme. We
rejected Halloran’s challenge, ruling that “§§ 200.45 and 200.50 prohibit the conduct
constituting the Wilson-Pakula Scheme under any plausible reading of those statutes.”
United States v. Halloran, 821 F.3d 321, 337 (2d Cir. 2016). We therefore reject the
defendants’ argument.

         2. Honest Services Fraud Vagueness

        The wire fraud statute prohibits use of interstate wires by one who has “devised or
intend[ed] to devise any scheme or artifice to defraud, or for obtaining money or property
by false or fraudulent pretense, representations, or promises.” 18 U.S.C. § 1343. Section
1346 defines “scheme or artifice to defraud” to include “a scheme or artifice to deprive
another of the intangible right of honest services.” Id. § 1346. The defendants challenge
the statute as unconstitutionally vague. We reject that contention.

        In Skilling v. United States, 561 U.S. 358 (2010), the Supreme Court addressed a
vagueness challenge to the honest services fraud statute. In order to “preserve the statute
without transgressing constitutional limitations,” the Court held that “§ 1346 criminalizes
only the bribe-and-kickback core” of its arguable statutory reach. Id. at 408–09. Given
that definition, “[a] criminal defendant who participated in a bribery or kickback scheme
. . . cannot tenably complain about prosecution under § 1346 on vagueness grounds.” Id.
at 413. The Wilson-Pakula bribery scheme clearly falls within this definition, and
therefore the defendants’ vagueness challenge fails. See Halloran, 821 F.3d at 337–40
(rejecting a vagueness challenge to § 1346, as applied to this Wilson-Pakula scheme,
despite defendant’s argument that § 1346 fails to specify the source of the fiduciary duty
a defendant must breach).2


2
  Smith contends that his challenge is distinct from Halloran’s because he argues that § 1346 is facially vague, rather
than vague as applied. However, where a challenged law does not threaten First Amendment interests, “we generally
evaluate a vagueness claim only as applied to the facts of the particular case.” Mannix v. Phillips, 619 F.3d 187, 197
(2d Cir. 2010). Thus, “one to whose conduct a statute clearly applies may not successfully challenge it for
vagueness.” Id. (quoting Parker v. Levy, 417 U.S. 733, 756 (1974)) (internal quotation marks and alterations

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        3. Federalism

      The defendants also contend that their Travel Act and honest services fraud
prosecutions violate “principles of federalism.” We reject these challenges as well.

       When an interpretation of a federal criminal statute “would dramatically intrude
upon traditional state criminal jurisdiction,” we avoid reading the statute to have such
reach unless there is a “clear indication” that it does. Bond v. United States, 134 S. Ct.
2077, 2088 (2014) (internal quotation marks and alterations omitted). Even assuming
arguendo that applying § 1346 to the Wilson-Pakula scheme would somehow intrude
upon traditional state criminal jurisdiction, the defendants’ challenge fails. In Skilling, the
Supreme Court stated that it is “plain as a pikestaff that bribes and kickbacks constitute
honest-services fraud.” 561 U.S. at 412. Thus, there is a clear indication that § 1346
reaches the Wilson-Pakula bribery scheme.

        Smith’s federalism challenge to his Travel Act prosecution also fails. Smith
provides no legal support for the proposition that prosecution under the Travel Act for a
state law crime violates principles of federalism. He rests his argument on New York’s
supposed “hands-off policy” towards prosecuting Wilson-Pakula conduct under
§§ 200.45 and 200.50. However, even if such a challenge were appropriate, Smith has
provided no concrete evidence—beyond mere speculation and supposition—that New
York prosecutors have affirmatively declined to prosecute Wilson-Pakula schemes. See
Halloran, 821 F.3d at 335 (“The fact that this may be the first time that a scheme to buy a
Wilson-Pakula is charged under §§ 200.45 and 200.50 is of no moment without evidence
that prosecutors affirmatively declined to prosecute similar schemes in the past.”). We
therefore reject his argument.

        4. Honest Services Fraud Sufficiency of the Evidence

       Tabone challenges his honest services fraud conviction, claiming that he did not
owe a fiduciary duty to any victim of the alleged fraud. The existence of a fiduciary duty
is a question of fact for the jury. Halloran, 821 F.3d at 340. In challenging the sufficiency
of the evidence to support a conviction, “a defendant bears a heavy burden.” United
States v. Chavez, 549 F.3d 119, 124 (2d Cir. 2008). “In considering such a challenge, we
must view the evidence in the light most favorable to the government, crediting every
inference that could have been drawn in the government’s favor and deferring to the
jury’s assessment of witness credibility.” Id. (citations, alterations, and quotation marks
omitted).

       The “[e]ssential elements of a fiduciary relation are reliance, de facto control and
dominance.” Halloran, 821 F.3d at 338 (quoting AG Capital Funding Partners, L.P. v.
State St. Bank & Tr. Co., 896 N.E.2d 61, 68 (N.Y. 2008)) (internal quotation marks

omitted).

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omitted). In Halloran, we rejected Halloran’s challenge to the existence of a fiduciary
duty because the jury considered evidence that county chairs exercised control over the
party committees and understood that they had a duty to act in the best interests of the
party. See id. at 340. Similarly, we find that there was sufficient evidence to support a
finding that Tabone owed a fiduciary duty to the Queens County Republican Party. Inter
alia, the jury heard testimony that the Queens County Republican Party had “confidence”
in Tabone, that the “people in the party relied on him and trusted him,” and that “[t]here
was a relationship of trust” between Tabone and Chairman of the Queens County
Republican Party, Philip Ragusa. Supplemental App’x at 429. Other party officials
testified that they understood they had a duty to act in the best interests of the party.
Moreover, the jury heard a recording in which Tabone stated: “I’m the Chief Operating
Officer of the Party. I run the Queens County Republican Party. Nobody else runs the
Party. I run the Party. I am the party.” Id. at 1033. This evidence was sufficient to support
a jury finding that Tabone owed a fiduciary duty to the Queens County Republican Party.

       5. Witness Tampering Sufficiency of the Evidence

        18 U.S.C. § 1512(b) prohibits “knowingly . . . corruptly persuad[ing] another
person, or attempt[ing] to do so, or engag[ing] in misleading conduct towards another
person, with intent . . . to influence, delay, or prevent the testimony of any person in an
official proceeding [or to] cause or induce any person to withhold testimony . . . from an
official proceeding.” Section 1512(c) prohibits “corruptly . . . influenc[ing], or
imped[ing] any official proceeding, or attempt[ing] to do so.” We define “corrupt
persuasion” as persuasion that is “motivated by an improper purpose.” United States v.
Gotti, 459 F.3d 296, 343 (2d Cir. 2006) (quoting United States v. Thompson, 76 F.3d 442,
452 (2d Cir. 1996)) (internal quotation marks omitted). Tabone challenges the sufficiency
of the evidence supporting his conviction under these statutes for attempting to prevent
Philip Ragusa from giving testimony in a deposition that was court-ordered due to
Ragusa’s failing health.

        We reject Tabone’s challenge. At trial, Nelly Ragusa—Philip Ragusa’s wife—
testified that, when Tabone came to her door, “[h]e said Phil shouldn’t testify because
[Tabone] didn’t do anything wrong. Everything was legal what he did.” Supplemental
App’x at 270. She testified that Tabone then went into Philip Ragusa’s bedroom. Joseph
Levy testified that, while Tabone was in Philip Ragusa’s bedroom, he began “telling
[Ragusa] that he did not have to give testimony that day, that there was no court that
could compel him to give any testimony.” Id. at 266. Nelly Ragusa also testified that
Tabone had never been to her house or taken any role in Philip Ragusa’s care prior to that
visit. This evidence was sufficient to support Tabone’s conviction under 18 U.S.C.
§ 1512.




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       6. Hobbs Act Sufficiency of the Evidence

        The Hobbs Act prohibits “in any way or degree obstruct[ing], delay[ing], or
affect[ing] commerce . . . by . . . extortion[,] or attempt[ing] or conspir[ing] so to do.” 18
U.S.C. § 1951(a). Of relevance here, “extortion” is defined to include “the obtaining of
property from another . . . under color of official right.” Id. § 1951(b)(2). To establish
extortion under color of official right, the Government “need only show that a public
official has obtained a payment to which he was not entitled, knowing that the payment
was made in return for official acts.” Ocasio v. United States, 136 S. Ct. 1423, 1428
(2016) (internal quotation marks omitted). “[A] public official is not required to actually
make a decision or take an action.” McDonnell v. United States, 136 S. Ct. 2355, 2370–
71 (2016). “[I]t is enough that the official agree to do so.” Id. at 2371. “The agreement
need not be explicit, and the public official need not specify the means that he will use to
perform his end of the bargain.” Id.

       Smith challenges the sufficiency of the evidence of his Hobbs Act extortion
conviction. He primarily argues that facilitating a meeting between New York State
Senator David Carlucci and Mark Stern was not an “official act.” It is true that merely
setting up a meeting—without more—does not qualify as an official act. See id. at 2371–
72. It can, however, “serve as evidence of an agreement to take an official act.” Id. at
2371. There was sufficient evidence of Smith’s agreement to help allocate state funds for
Raj’s (an undercover FBI Agent) and Stern’s (a cooperating witness) benefit in exchange
for the Wilson-Pakula bribe payments. In discussing obtaining funding for road
improvements that would benefit the Spring Valley real estate development project,
Smith instructed Stern to tell Carlucci that Smith would “work with” him and “show him
where in the budget, how to get it, and all that kind of stuff.” Supplemental App’x at
1128–29. Smith told Raj that if Carlucci “doesn’t get enough,” then “we go to the
agency” to get funding. Id. at 1131. Carlucci testified that Smith asked him multiple
times to “take” a meeting with Stern. Later, Smith told Raj and Stern that he had “found
another place” from which the funds could be allocated. Id. at 970. He concluded that
“[w]e’ll get it done.” Id. at 971. These discussions about the Spring Valley funding came
shortly before and after discussions about the Wilson-Pakula bribery scheme. The jury
could properly conclude that this evidenced an agreement to take official action in
exchange for payment of Wilson-Pakula bribes.

       7. Hobbs Act Jury Instruction

       Alternatively, Smith argues that the Hobbs Act jury instruction was inadequate in
light of McDonnell, because, like the instruction held erroneous in that case, it failed to
define specifically for the jury the contours of an “official act” and did not make clear
that merely setting up a meeting is not such an act. McDonnell, 136 S. Ct. at 2372.
Because Smith failed to object to the charge on this ground when given, or to request a


                                              6
charge of the sort he now argues would have been appropriate, we review for plain error.3
Under the plain error standard, “an appellate court may, in its discretion, correct an error
not raised at trial only where the appellant demonstrates that (1) there is an error; (2) the
error is clear or obvious, rather than subject to reasonable dispute; (3) the error affected
the appellant’s substantial rights, which in the ordinary case means it affected the
outcome of the district court proceedings; and (4) the error seriously affects the fairness,
integrity or public reputation of judicial proceedings.” United States v. Prado, 815 F.3d
93, 100 (2d Cir. 2016) (quoting United States v. Marcus, 560 U.S. 258, 262 (2010))
(internal quotation marks omitted).

       Assuming arguendo that the charge was plainly insufficient in light of McDonnell,
we nevertheless conclude that any error did not affect Smith’s substantial rights. The
prosecution’s principal theory throughout the trial was that, in exchange for Raj and
Stern’s bribes to Tabone and others to secure Smith’s Wilson-Pakula certificate, Smith
would use his influence to help Raj and Stern obtain state funding for the Spring Valley
real estate project. To demonstrate the existence of such an agreement, the Government
relied on the meeting that Smith set up between Stern and Carlucci, as well as taped
conversations in which Smith promised to help Carlucci find the money in the state
budget. McDonnell makes clear that while merely setting up a meeting is not in itself an
“official act” for purposes of Hobbs Act extortion, doing so “could serve as evidence of
an agreement to take an official act.” McDonnell, 136 S. Ct. at 2371. Thus, given the
strength of the evidence supporting the Government’s theory that Smith promised to help
channel government funds to benefit the bribe-givers—something that Smith concedes
would be an “official act”—there is no “reasonable probability that the [asserted] error
affected the outcome of the trial.” Prado, 815 F.3d at 102.

      We have considered the Appellants’ remaining arguments and find them to be
without merit. Accordingly, we AFFIRM the judgments of the district court.

                                             FOR THE COURT:
                                             Catherine O’Hagan Wolfe, Clerk of Court




3
  Smith argues that the jury instruction should instead be subject to modified plain error review because his failure
to preserve the issue resulted from an intervening change in law. Modified plain error review is the same as plain
error review except that the burden of showing (lack of) prejudice is placed on the government rather than the
defendant. United States v. Botti, 711 F.3d 299, 308 (2d Cir. 2013). We have questioned the continued viability of
the modified plain error standard, Prado, 815 F.3d at 102–03, but need not decide its fate today, because the
outcome of Smith’s case is the same under either the modified or conventional plain error standard of review.

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