                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 09-3701
                                      ____________

                             UNITED STATES OF AMERICA

                                            v.

                                   JOSEPH CONIGLIO,

                                                    Appellant
                                      ____________

                    On Appeal from the United States District Court
                               for the District of New Jersey
                           (D.C. Crim. No. 2-08-cr-00128-001)
                    District Judge: Honorable Dennis M. Cavanaugh
                                       ____________

                               Argued: February 16, 2011

                 Before: SLOVITER and HARDIMAN, Circuit Judges,
                           and JONES, II,* District Judge.

                                  (Filed: March 8, 2011)

                     Gerald Krovatin [Argued]
                     Krovatin Klingeman LLC
                     Newark, NJ 07102
                           Attorney for Appellant




       *
        The Honorable C. Darnell Jones, II, District Judge for the United States District
Court for the Eastern District of Pennsylvania, sitting by designation.
                    Paul J. Fishman
                    George S. Leone
                    Steven G. Sanders [Argued]
                    Office of United States Attorney
                    Newark, NJ 07102
                           Attorneys for Appellee

                                     ____________

                              OPINION OF THE COURT
                                   ____________

JONES, II, District Judge.

      Joseph Coniglio (“Coniglio”) appeals guilty verdicts rendered by a jury against

him on five counts of honest services mail fraud in violation of 18 U.S.C. §§ 1341 and

1346 (“HSMF Counts”) and one count of extortion under color of official right in

violation of 18 U.S.C. § 1951(a) (“Extortion Count”). We will vacate the convictions and

sentences on the HSMF Counts, affirm the conviction on the Extortion Count, and

remand for re-sentencing on the Extortion Count.

                                            I.

      Because we write primarily for the parties, we recite only the essential facts and

procedural history of this case. On February 14, 2008, the United States filed an

Indictment in this matter that charged Coniglio, a former New Jersey State Senator, with

eight HSMF Counts and one Extortion Count. The HSMF Counts charged two objects:

one sounding in bribery (“the Bribery Object”) and one sounding in concealed conflict of




                                            2
interest (“the Concealed Conflict Object”). More specifically, the Bribery Object was

based on allegations that Coniglio entered into a corrupt consulting agreement with the

Hackensack University Medical Center (“HUMC”) that masked an underlying, unwritten

agreement to pay Coniglio in exchange for improperly undertaking official actions that

inured to HUMC‟s financial benefit. The Concealed Conflict Object was based upon

allegations that Coniglio improperly concealed material information regarding his

relationship with HUMC. Prior to trial, Coniglio moved to dismiss the HSMF Counts to

the extent that they were based on the Concealed Conflict Object. The District Court

denied Coniglio‟s motions and, over the course of the trial, allowed the United States to:

(1) introduce alleged acts of concealment by Coniglio and HUMC, and (2) argue the

Concealed Conflict Object was an independent basis upon which the jury could find

Coniglio guilty of HSMF.

       Trial began on March 25, 2009. After three weeks, the District Court charged the

jury. Over the objection of Coniglio, the District Court instructed the jury that it could

convict under the HSMF Counts by finding either the Bribery Object or the Concealed

Conflict Object. At the same time, however, the District Court declined to charge the jury

that it had to find either one of the Objects unanimously. After three days of deliberation,

the jury returned general verdicts on the HSMF Counts. In doing so, the jury did not

specify whether it found Coniglio guilty based on the Bribery Object, the Concealed




                                              3
Conflict Object, or some combination thereof.1

       On April 17, 2009, the jury convicted Coniglio on five HSMF Counts and the

Extortion Count, acquitted him on two HSMF Counts, and hung on the remaining HSMF

Count. The District Court denied Coniglio‟s motions for judgments of acquittal or a new

trial. The District Court sentenced Coniglio to thirty months concurrent imprisonment on

each count of conviction, fined Coniglio $15,000, and entered the final judgment of

conviction. Coniglio timely appealed. This Court stayed his appeal pending the decision

of the United States Supreme Court in Skilling v. United States, 130 S. Ct. 2896 (2010).

Having the benefit of that decision and arguments of the parties, we now resolve this

matter.2

                                                II.

       On appeal, Coniglio argues that: (1) in light of Skilling, the District Court erred in

instructing the jury that it could convict him under the HSMF Counts based on the

Concealed Conflict Object; (2) his HSMF convictions must be vacated because the error

concerning the Concealed Conflict Object was not harmless beyond a reasonable doubt;


       1
         The parties disagreed as to the value of a general verdict form versus a verdict form
containing specific interrogatories concerning the HSMF Bribery Object and Concealed Conflict
Object. Coniglio objected to a special verdict form advocated by the Government. The District
Court elected to use a general verdict form. While Coniglio‟s stance may have unfortunately
contributed to confusion below, it did not constitute a waiver of his right to challenge the HSMF
Concealed Conflict Object on appeal. Black v. United States, 130 S. Ct. 2963, 2970 (2010).
       2
           We have jurisdiction under 28 U.S.C. § 1291.


                                                4
and (3) his Extortion Count conviction should be vacated due to “prejudicial spillover”

from the HSMF Concealed Conflict Object error. Alternatively, Coniglio contends that

his convictions should be vacated because the District Court erroneously charged the jury

in several other respects.

                                                A.

       In Skilling, the Supreme Court held that 18 U.S.C. § 1346 is unconstitutionally

vague to the extent it criminalizes behavior beyond bribery and kickback schemes.

Skilling, 130 S. Ct. at 2931. As a result of Skilling, the Concealed Conflict Object and

instructions from the District Court based thereon amounted to a “clear and obvious”

legal error that is “not subject to reasonable dispute.” United States v. Riley, 621 F.3d

312, 323 (3d Cir. 2010) (citations omitted).3

                                                B.

       Having found that Coniglio was charged with, and the jury was instructed upon,

both a valid and invalid theory of HSMF, we must determine whether the error regarding

the invalid Concealed Conflict Object was harmless. Riley, 621 F.3d at 323-25; Skilling,

130 S. Ct. at 2934 & n.46 (citing Yates v. United States, 354 U.S. 298 (1957)). Under

harmless error review, convictions that may have been based on either a legally valid

theory or legally invalid theory should be affirmed only if it is clear beyond a reasonable


       3
           The United States has acknowledged this conclusion in its briefing and argument.


                                                 5
doubt that a rational jury would have found the defendant guilty on the valid theory

absent the invalid theory. See Neder v. United States, 527 U.S. 1, 19 (1999) (“If, at the

end of that examination, the court cannot conclude beyond a reasonable doubt that the

jury verdict would have been the same absent the error – for example, where the

defendant…raised evidence sufficient to support a contrary finding – it should not find

the error harmless.”). See also United States v. Black, 625 F.3d 386, 388 (7th Cir. 2010)

(on remand from U.S. Supreme Court after Skilling, noting that “if it is not open to

reasonable doubt that a reasonable jury would have convicted the[ ] [defendants] of

pecuniary fraud, the convictions on the fraud counts will stand”).

       Upon careful review of the record below, it is not possible for us to conclude

beyond a reasonable doubt that a rational jury would have convicted Coniglio based

solely upon the Bribery Object. At trial, the Government inextricably intertwined

evidence of bribery and concealment. The District Court itself specifically charged the

jury that it might convict Coniglio on either the Bribery Object or the Concealed Conflict

Object, and the District Court‟s evidentiary rulings throughout the trial may have been

affected by the existence of the Concealed Conflict Object charges. Moreover, there is no

escaping the fact that, while understandably emphasizing the Bribery Object to a greater

degree, the United States did argue that the Concealed Conflict Object alone was a

sufficient basis for conviction. While we do not say it is probable, we do conclude that it




                                             6
is indeed possible that the invalid Concealed Conflict Object could have contributed to

the verdict. Stated differently, on the record before us we cannot conclude beyond a

reasonable doubt that a rational jury would have convicted Coniglio of HSMF absent the

invalid Concealed Conflict theory.4 Accordingly, the plain error was not harmless and we

must vacate the HSMF convictions.

                                               C.

       “Generally, invalidation of the conviction under one count does not lead to

automatic reversal of the convictions on other counts.” United States v. Gambone, 314

F.3d 163, 180-81 (3d Cir. 2003) (quoting United States v. Pelullo, 14 F.3d 881, 897 (3d

Cir. 1994)). We are required to analyze whether the Defendant was prejudiced because

“there was a spillover of evidence from the reversed count that would have been

inadmissible at a trial limited to the remaining count.” Riley, 621 F.3d at 325 (quoting

United States v. Cross, 308 F.3d 308, 317-18 (3d Cir. 2002)). “If the answer is „no,‟ then

our analysis ends, as the reversed count cannot have prejudiced the defendant.” Id.

(quoting Cross, 308 F.3d at 318). Accordingly, here we must decide whether the

Extortion Count conviction was tainted by evidence admitted on the basis of HSMF

Concealed Conflict Object Counts, but which would have been excluded in a hypothetical


       4
         The argument of the United States that the evidence of bribery was “overwhelming”
does not alone carry the day. This was a case involving a large amount of sharply contested,
circumstantial evidence.


                                               7
trial solely on the Extortion Count. See Riley, 621 F.3d at 325 (citing United States v.

Lee, 612 F.3d 170, 180 (3d Cir. 2010); United States v. Atiyeh, 402 F.3d 354, 373-74 (3d

Cir. 2005); Gambone, 314 F.3d at 181). Specifically, if most or all of the Government‟s

concealment evidence would have been admissible in a hypothetical trial only on the

Extortion Count, Coniglio was not prejudiced and our analysis ends.

       To convict Coniglio on the Extortion Count, the United States was required to

prove, inter alia, that Coniglio knowingly accepted one or more payments to which he

was not entitled, “with the implied understanding that he would perform…an act in his

official capacity.” United States v. Antico, 275 F.3d 245, 257 (3d Cir. 2001). Moreover,

based on the charges in the Indictment, the District Court also instructed the jury that it

had to find Coniglio acted “willfully” – i.e., that Coniglio “knew his conduct was

unlawful and intended to do something the law forbids,” and “acted with a purpose to

disobey or disregard the law.” JA 1024. Because it can be difficult to prove

intent/willfulness from direct evidence, consciousness of guilt evidence can be of “high

probative value to the government‟s case” and admissible pursuant to Federal Rule of

Evidence 404. United States v. Kemp, 500 F.3d 257, 297-98 (3d Cir. 2007) (citing United

States v. Gatto, 995 F.2d 449 (3d Cir. 1993)).

       Here, such evidence included alleged efforts to conceal both: (1) the relationship

between HUMC and Coniglio, and (2) particular activities that were allegedly undertaken




                                              8
as part of the purportedly corrupt bargain. We acknowledge it is possible that, in the

absence of HSMF charges based on the Concealed Conflict Object, the District Court

might not have allowed the introduction of every single piece of concealment evidence

adduced by the United States. However, we are not persuaded by Appellant‟s contention

that the vast majority of the Government‟s concealment evidence was solely offered to

prove the HSMF Concealed Conflict theory, and thus would have been disallowed in a

trial on only the Extortion Count. Rather, we are satisfied that the District Court would

indeed have properly admitted some very significant amount, if not all, of the

Government‟s concealment evidence in a trial on only the Extortion Count – either as

evidence of intent or consciousness of guilt. We further conclude that the District Court

satisfactorily instructed the jury as to the appropriate use of such evidence. See JA 1024-

25. The conviction on the Extortion Count shall therefore be affirmed.

                                            D.

       Because we will vacate the HSMF convictions, we need not reach Coniglio‟s

objections to the District Court‟s jury instructions that only pertain to the HSMF Counts.

Coniglio does make an argument concerning the “stream of benefits” instruction versus

the “any amount of payment” instruction, and the interrelationship of those instructions

with the HSMF Counts and the Extortion Count. It is arguable whether Coniglio

preserved this objection below as related to the Extortion Count. See JA 957-59.




                                             9
Nonetheless, we have considered it and we conclude that: (1) the District Court

appropriately demarcated its instructions on the Extortion Count from those relating to the

HSMF Counts, and (2) the District Court‟s Extortion Count instructions were legally

satisfactory and did not pose a risk of confusion to the jury.

                                             III.

       We will vacate the District Court Judgment with respect to Counts Two, Three,

Six, Seven and Eight, we will affirm the judgment of conviction as to Count Nine, and

remand to the District Court for re-sentencing as to Count Nine.




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