Bruno March 7 Response

Case: 10-1885 Document: 62 Page: 1 04/07/2011 256876 34
No. 10- 1885
UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT
UNITED STATES OF AMERICA

Appellee
JOSEPH L. BRUNO
Defendant- Appellant
On Appeal from the United States District Court

for the Northern District of New York
Docket No. 1 :09-cr- 29- 1 (Honorable Gary L. Sharpe)
REPL Y BRIEF OF DEFENDANT - APPELLANT

JOSEPH L. BRUNO
William J. Dreyer Abbe David Lowell

DREYER BOYAJIAN LLP Paul M. Thompson
75 Columbia Street Jeffrey W. Mikoni
Albany, NY 12210 McDERMOTT WILL & EMERY LLP
(518) 463- 7784 600 Thirteenth St. , N.
Washington , D. C. 20005- 3096
(202) 756- 8000
Attorneys for Defendant-Appellant Joseph L. Bruno

TABLE OF CONTENTS
Page
INTRODUCTION................................................................................................ .
ARGUMENT........................................................................................................ .
I. THE INDICTMENT MUST BE DISMISSED.............................................
A. The Indictment Failed To Charge Mr. Bruno With Any
Valid Crime....................................................................................... 3
The Court Must Review The Validity Of The Actual Indictment

Returned Against Mr. Bruno , Not The Hypothetical One The
Government Hopes To Seek In The Future........................................ 6
Although The Issue Is Not Properly Before The Court At This

Time , The Statute Of Limitations Would Prevent The
Government From Legally Re- indicting Mr. Bruno ...........................
II. THIS COURT MUST CONSIDER THE SUFFICIENCY OF THE

EVIDENCE AGAINST MR. BRUNO ......................................................
III. THE GOVERNMNT' EVIDENCE AT TRIAL WAS
INSUFFICIENT TO PROVE MR. BRUNO GUILTY OF ANY
VALID BRIBERY CHARGES .................................................................
A. Mr. Bruno Did Not Solicit Or Accept Bribes From Mr. Fassler
(Count 3).......................................................................................... 18
Mr. Bruno Did Not Solicit Or Accept Bribes From Mr.

Abbruzzese (Counts 4 & 8)............................................................. .
CONCLUSION................................................................................................... 29
CERTIFICATE OF COMPLIANCE.................................................................... 30
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TABLE OF AUTHORITIES
Cases
Burks United States

v.
437 U. S. 1 (1978)...................................................................................... , 13 , 16
Hamling United States

v.
418 U. S. 87 (1974)................................................................................................. 5
McNally United States

v.
483 U. S. 350 (1987).................................................................................. , 14 , 15
Mossew United States

v.
266 F. 18 (2d Cir. 1920)..................................................................................... , 7
Richardson United States v.
468 U. S. 317 (1984)........................................................................................ , 13
Skiling v. United States

130 S. Ct. 2896 (2010) ................................................................................... passim
United States Carll v.
105 U. S. 611 (1882)............................................................................................... 5
United States v. Ford

435 F. 3d 204 (2d Cir. 2006) ............................................................................ , 16
United States GAF Corp. v.
928 F.2d 1253 (2d Cir. 1991) .................................................................................
United States Ganim v.
510 F. 3d 134 (2d Cir. 2007)............................................................................
United States Grady v.
544 F.2d 598 (2d Cir. 1976)................................................................................... 9
United States v. Holland

116 F. 3d 1353 (10th Cir. 1997) ............................................................................ .14
United States v. Ismail
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97 F. 3 d 50 (4th Cir. 1996)...................................................................................... 8
United States Italiano v.
894 F.2d 1280 (1Ith Cir. 1990) ....................................................................... , 11
United States v. Miler

84 F. 3d 1244 (10th Cir. 1996).............................................................................. .
United States v. Miler

952 F.2d 866 (5th Cir. 1992)..................................................................... , 15 , 16
United States v. Pirro

212 F. 3d 86 (2d Cir. 2000)..................................................................................... 7
United States v. Prigmore

243 F. 3d 1 (1st Cir. 2001) ...................................................................................
United States v. Salmonese

352 F. 3d 608 (2d Cir. 2003) ...................................................................................
United States Schaefer v.
No. Sl:07- CR- 498 , 2008 WL 2332369 (S. Y. Jun. 2 2008)............................ 7
United States Seminerio

v.
No. S:08- CR- 1238 , 2010 WL 3341887 (S. Y. Aug. 20 2010)......................
United States Wallach v.
979 F.2d 912 (2d Cir. 1992) ................................................................................. .13
Statutes
18 U. C. 1346.................................................................................................... 3
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INTRODUCTION
In its response brief, the government again refuses to accept a simple truth-
that decisions have consequences.
In 2009 , the government made strategic choice to pursue only

nondisclosure- based charges against Mr. Bruno , rather than also pursuing harder-
to- prove bribery offenses. Even after setting the lowest possible bar for itself, the
government secured only two convictions out of eight counts , in what was almost
certainly a compromise verdict rendered by a jury that had deliberated for more
than a week , had reported deadlock on multiple occasions , and had received an
Allen charge. Since then , the Supreme Court has vindicated arguments that Mr.
Bruno pressed since even before this case was brought , by ruling that the " crimes
with which he was charged were not constitutional in the first place. The
government should accept that it took a calculated risk and lost , recognizing the
clear differences between Mr. Bruno s case and those honest-services- fraud cases
that survived the Skiling decision. See Bruno Br. at 37- 38 (collecting cases). But
instead , the government is desperately sifting through the ashes of its case in an
effort to find some way to revive its defective prosecution.
This Court should not be swayed by the government' s arguments. The
mistakes the prosecution made below were not mere " instructional errors. " Rather
the government based its entire indictment upon charges that were not crimes , and
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now seeks to start over by alleging bribery charges that it could have brought-but
chose not to- in January 2009. Moreover , having had one bite at the apple
already, the government cannot now use the first trial as a mere rehearsal for a new
effort to convict Mr. Bruno. This Court should review the entirety of the case
below , recognize both the invalidity of the government' s indictment and the
insufficiency of the government' s evidence at trial , and dismiss the charges against
Mr. Bruno with prejudice. Decisions have consequences- even those made by the
government.
ARGUMENT
THE INDICTMENT MUST BE DISMISSED.
The government acknowledges that its instructions , which it believed were
(c )onsistent with the law at the time " have been fatally undermined by the
Supreme Court' s decision in Skillng. See generally Gov t Br. at Point I. Yet the
government insists that this Court should view this problem as an instructional
error , rather than also proceeding to consider the invalidity of the indictment. In
support of this position , the government makes two principal points: (1) the error
below was merely instructional see Gov t Br. at Point I , and (2) because the
government intends to file a superseding indictment , the defects in the original
indictment are moot see Gov t Br. at Point IV. The government is incorrect , and
the flawed indictment in this case must be dismissed and cannot be resuscitated.
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,"
The Indictment Failed To Charge Mr. Bruno With Any

Valid Crime.
In the government' s view , the only error below was that (c )onsistent with
the law at the time. . . the district court did not require the jury to find a quid pro
quo an " instructional error " in light of the " new legal standard announced in
Skiling. " See Gov t Br. at 22- , 29. That is not what happened below at all; the
defects in the government' s case are far more fundamental.
As Mr. Bruno explained in his opening brief , prior to Skiling, 18 U.
~ 1346 was viewed as criminalizing two different courses of conduct-the
acceptance of bribes or kickbacks , and the nondisclosure of material information.
See Bruno Br. at 11- 13; see also JA000170- 171 (government memorandum
discussing two distinct theories of honest services fraud); JA000263 , 265-268
(district court opinion doing same). The government was free , at the time it sought
charges against Mr. Bruno , to proceed under either or both of these theories.
Instead , it chose to charge Mr. Bruno only with the " crime " of nondisclosure. In
response , Mr. Bruno moved to dismiss the indictment on the grounds that it did not
charge him with any constitutionally-valid crime.
Through Skillng, the Supreme Court agreed with Mr. Bruno , holding that
nondisclosure of material information was so vague a concept that it could not be
embraced within Section 1346 without rendering the entire statute unconstitutional.
Skiling v. United States 130 S. Ct. 2896 , 2932 (2010). But nothing in Skiling
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changed the law regarding how to charge , try, or instruct the bribery charges that
the government now hopes to tack onto its five- year vendetta against Mr. Bruno.
Rather Skilling struck down the only crime with which the government charged
Mr. Bruno-the failure to disclose material information to the public.
As a result , the government' s mistakes below cannot be cast as mere
instructional error for a valid crime sent to the jury under improper directions.
From its inception , the government' s case against Mr. Bruno was charged and tried
only as a nondisclosure case. See Bruno Br. at 27- 34 (collecting examples of
government agreeing that indictment only charged nondisclosure theory). Thus
the government not only failed to seek instructions on bribery or kickbacks , but it
also failed to charge Mr. Bruno with soliciting or accepting such bribes or
kickbacks. Therefore , because the only " crime " charged in the indictment is no
crime at all , the indictment is facially void and must be dismissed. See Bruno Br.
at 34- 38; see also Mossew v. United States 266 F. 18 , 21 (2d Cir. 1920)
(indictment that does not charge a crime is void).
The government resists this conclusion , but it makes no real effort to pretend
that its indictment survives Skiling. The government stresses that its indictment
and instructions were based upon various " failure to disclose " cases considered
valid at the time see Gov t Br. at 24- , but these cases were , of course , rejected
by Skiling. See 130 S. Ct. at 2930-2932. The government later claims that a valid
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indictment need not include any mention of quid pro quo because the concept is
somehow " embedded" in the legal term of art " intangible right of honest services.
See Gov t Br. at 55- 56. But " embedded" concepts cannot provide valid notice
unless the words of a statute " fully, directly, and expressly, without any uncertainty
or ambiguity, set forth all the elements necessary to constitute the offence intended
to be punished(. Hamling v. United States 418 U. S. 87 , 117 (1974) (quoting
United States v. Carll 105 U. S. 611 , 612 (1882)). The government cannot argue
that Section 1346' s text possessed such clarity even before the Skiling decision.
As a result , the government cannot find comfort or success in their statutory
language argument.
Finally, the government points to a handful of phrases in the indictment that
when taken together , might- if such cobbling was a proper charging procedure-
suggest aspects of a bribery case. But the government cannot and does not argue
that the indictment actually charged that Mr. Bruno solicited or accepted bribes
nor does it charge that he at any time intended to be influenced in the performance
of his official duties. See Gov t Br. at 54 n.13 (stating only that Mr. Bruno
solicited payments . under circumstances in which it reasonably could be
inferred that they were intended to influence him ). This is not a case like United
States v. Seminerio in which the district court could conclude that a nondisclosure-
theory indictment nevertheless made " clear that the concealed conflict was
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secret solicitation and receipt of bribes. See Gov t Br. at 54 (quoting United
States v. Seminerio No. S:08- CR- 1238 , 2010 WL 3341887 at *7 (S. Y. Aug.
, 2010); emphasis in original). Here , the government repeatedly stressed that its
indictment did not charge Mr. Bruno with soliciting or accepting such bribes , and
the district court agreed. See , e. GA38 (district court stating " (t)hat would be a
quid pro quo , and I don t believe that' s what the indictment alleges whatsoever.
In short , there should be no dispute that the indictment returned against Mr.
Bruno on January 23 , 2009 , was void ab initio because it failed to charge any
valid crime. In such circumstances , dismissal of the charges is the only proper
remedy.
The Court Must Review The Validity Of The Actual

Indictment Returned Against Mr. Bruno, Not The
Hypothetical One The Government Hopes To Seek In The
Future.
The government argues that , because it " intends to seek a superseding
indictment based on the same underlying evidence and alleging the same statutory
violations without broadening the charges " this Court should not bother to review
the sufficiency of the original indictment. See Gov t Br. at 48-49. But nothing in
this Court' s precedent suggests that the prospect that the government might attempt
to re- indict a defendant preempts this Court' s obligation to review a challenged
indictment.
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As Mr. Bruno explained in his opening brief, this Court must consider the
government' s indictment " as it was actually drawn , not as it might have been
drawn let alone as the government might try to draw it again in the future. See
Bruno Br. at 42 (quoting United States v. Pirro 212 F. 3d 86 , 92 (2d Cir. 2000);
collecting cases). While this Court has often reviewed defective indictments on
appeal , it has never suggested that the possibility of a subsequent indictment has
any relevance such an inquiry. Rather , this Court has a long tradition of reviewing
indictments and, when warranted , dismissing them as void. See , e. g., Mossew , 266
F. at 21. Accordingly, this Court should review (and reject) the government'
faulty indictment now , leaving the district court to consider the validity of any new
indictment the government risks pursuing in the future.
The government has raised no authority to the contrary. See Gov t Br. at 49
(collecting inapposite cases). Schaefer a district court opinion , is obviously
distinguishable , because there a valid superseding indictment had already been
filed whereas here any new indictment is speculative at best. See generally United
States v. Schaefer No. Sl:07- CR- 498 , 2008 WL 2332369 (S. Y. Jun. 2 2008).
The GAF Corp Court did decline to review a number of appellant' s challenges
after it found a reversible error , but those challenges related to trial errors , not to
the validity of the charging documents. See generally United States v. GAF Corp.
928 F.2d 1253 (2d Cir. 1991). And the Prigmore Court in fact did review the
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.)
appellants ' arguments that the charges against them should be dismissed , ceasing
its inquiry only after it had determined that the convictions should be reversed but
that the charges could stand:
In the end , we are for

not persuaded by defendants ' arguments
reversal and dismissal. Yet we are convinced that the convictions
should be vacated and the case remanded for further proceedings. To
simplify our analysis , we shall begin by explaining why vacatur is
warranted and then proceed to explain why reversal and dismissal is
not. We do not reach the merits of any arguments beyond for vacatur
the one we regard as dispositive(.
United States v. Prigmore 243 F . 3d 1, 16- 17 (1 st Cir. 2001) (emphases added).
Once a court has decided to vacate a conviction below , it may be reasonable to
decline to consider alternative or superfluous arguments supporting that vacatur
but that is no reason to also decline to reach the distinct question of whether to also
dismiss the charges. The government is simply wrong that this Court can or should
vacate Mr. Bruno s conviction without then considering the deficiency of the
government' s indictment against him.
1 The government is correct that , in United States v. Ismail the Fourth Circuit
declined to consider the sufficiency of an indictment after ruling in favor of
appellants , but there the court of appeals ruled that the convictions must be
reversed due to insufficient evidence- a decision that operates as an acquittal and
bars retrial. 97 F. 3d 50 , 59 n. 3 (4th Cir. 1996). Should this Court do the same
See
and rule that Double Jeopardy bars the government' s anticipated efforts to retry
Mr. Bruno under new charges , then the government would be correct that review
of the indictment may not be necessary. However Ismail provides no support for
the government' s preferred course of conduct , in which this Court would do
( continued. .
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Although The Issue Is Not Properly Before The Court At

This Time, The Statute Of Limitations Would Prevent The
Government From Legally Re- indicting Mr. Bruno.
Even if the government' s plans to re- indict Mr. Bruno were relevant , it is not
clear that any subsequent indictment , whether new or superseding, could be valid
in this case.
As the government concedes , a new indictment relates back to a prior one
for statute-of- limitations purposes " if and only if it does not broaden the charges
made in the first indictment." Gov t Br. at 49- 50 (quoting United States v. Grady,
544 F.2d 598 , 601- 602 (2d Cir. 1976)); see also Bruno Br. at 38- 39 & n. 8. Notice
serves as the touchstone of this doctrine-the statute of limitations is only tolled
with respect to those charges of which the original indictment gives the defendant
fair notice. See Grady, 544 F. 2d at 601. For that reason , when new charges
contain different elements or rely upon different evidence , then the new indictment
materially broadens the original charges and does not relate back. See United
States v. Salmonese 352 F. 3d 608 , 622- 623 (2d Cir. 2003).
Here , there can be no dispute that the bribery charges envisioned by the
government require it to prove additional elements not contained in the original
honest services charges filed against Mr. Bruno-most notably, the quid pro quo
nothing save for vacating Mr. Bruno s conviction and , therefore , would never
reach the Double Jeopardy issue.
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requirement that serves as the hallmark of a bribery case. See Skiling, 130 S. Ct.
at 2933-2934 (Section 1346 bribery charges mirror other federal bribery laws).
Having insisted for years that the original indictment was valid even though it
charged Mr. Bruno with nondisclosure and only nondisclosure , the government
cannot credibly claim that the indictment somehow put Mr. Bruno on notice of the
very charges the government insisted it was not pursuing against him. See , e.
JAOOO 170- 171 (government stressing that indictment charged only "the second of
the two ' core categories ' of honest services fraud: failure to disclose material
conflicts of interest and related material information ; distinguishing nondisclosure
charges from bribery charges); see also Bruno Br. at 27- 34 (collecting examples of
all parties viewing indictment as being limited to nondisclosure charges). The
original indictment is simply not broad enough to encompass charges that the
government has disclaimed from the date it was handed down by the grand jury.
United States v. Italiano 894 F.2d 1280 (1Ith Cir. 1990), is not to the
contrary. The government is correct that , on the facts of that case , the Eleventh
Circuit upheld a second indictment issued after the Supreme Court' McNally
decision struck down the doctrine of honest services fraud , notwithstanding a
defendant' s argument that the new indictment was barred by the statute of
limitations because it broadened the charges against him. See Gov t Br. at 50- 51.
But review of the Italiano indictments reveals that both expressly charged the
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defendant with a bribery scheme. See 894 F. 2d at 1282- 1284 (quoting
indictments). Thus , given that " (t)he first and second indictments charge(d) the
same statutory violation , the same mailing in furtherance of the scheme , and the
same underlying transaction for the bribe " the Eleventh Circuit held that the first
indictment gave the defendant fair notice of the nature of the charges against him
even though the second indictment shifted its focus from a " good government"
bribery scheme to a " money or property " bribery scheme. See id. at 1284- 1286.
By contrast , where the original indictment at issue here unquestionably did not
charge Mr. Bruno with any bribery scheme , a new indictment attempting to do so
would run afoul of the statute of limitations.
In the end , the validity of the government' s hypothetical new indictment is
simply not before the Court at this time. While Mr. Bruno is convinced that the
government cannot retry him due to any number of legal barriers against re-
prosecution , consideration of all but one such doctrine is properly left until after
this appeal is resolved (if ever). 2 If the Court agrees that Double Jeopardy bars any
retrial , as Mr. Bruno argues , then there will be no doubt that the government may
not seek a new indictment against him. If the Court instead rules against Mr.
2 For this reason , Mr. Bruno disputes but does not respond to the government'
characterizations of the doctrines of judicial estoppel and abandonment , neither of
which is at issue in this appeal.
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Bruno on the Double Jeopardy issue , then the district court will be able to consider
whether any new indictment is valid notwithstanding the other legal barriers to
further prosecution , such as the statute of limitations. See Bruno Br. at 38-
(explaining limited scope of appeal). But the government' s hope that it will be
able to return a new , valid indictment in the future is no reason for this Court to
avoid considering the validity of the original indictment-a question that has been
properly raised in this appeal. This Court should follow its precedent , consider the
indictment as it was actually drawn , and reject that indictment because it fails to
charge Mr. Bruno with any valid crime.
II. THIS COURT MUST CONSIDER THE SUFFICIENCY OF

THE EVIDENCE AGAINST MR. BRUNO.
As Mr. Bruno explained in his opening brief, under the Supreme Court'
decisions in Richardson v. United States 468 U. S. 317 (1984), and Burks v. United
States 437 U. S. (1978), this Court should also consider whether the
government' s evidence at trial was sufficient to prove bribery charges under
Skiling and , if not , then dismiss the charges against Mr. Bruno with prejudice. See
Bruno Br. at 40-44. In response , the government seeks to carve out a narrow
exception to this general practice , arguing that courts should not review the
evdence in cases where the governing law changes after trial. See Gov t Br. at 29-
36. The government is mistaken. This Court should respect Mr. Bruno s Fifth
Amendment rights and review the evidence introduced at trial.
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The Government' s desire to retry Mr. Bruno implicates the heartland of the
Double Jeopardy Clause: the government wants a second trial " for the purpose of
affording (it) another opportunity to supply evidence which it failed to muster in
the first proceeding. See Burks 437 U. S. at 11. Mr. Bruno is therefore entitled to
the opportunity to prove that he should have been acquitted below had this case
been properly charged and presented to the jury and , therefore , that he cannot
constitutionally be retried in the future.
The government' s response that there has not yet been a "jeopardy-
terminating event " Gov t Br. at 30 , is no response at all. Mr. Bruno asking this
Court to enter such a jeopardy- terminating decision , because his Double Jeopardy
argument is lost forever unless this Court takes such action. See Bruno Br. at 41-
42 (explaining how , under Richardson and Burks Double Jeopardy rights can only
be protected if courts of appeals conduct sufficiency reviews). For this reason
courts of appeals have consistently recognized that , before vacating or reversing a
conviction on the basis of some other defect , they must also review the sufficiency
of the evidence introduced at trial. See Bruno Br. at 42-43 (collecting cases).
The government acknowledges that this Court stated without qualification
that such review is mandatory. See United States v. Wallach 979 F.2d 912 , 917 (2d
Cir. 1992) (" (A) reversal of a conviction on grounds other than sufficiency does
not avoid the need to determine the sufficiency of the evidence before a retrial may
- 13 -
);
occur(. see also United States v. Ford 435 F. 3d 204 , 214 (2d Cir. 2006)
(reviewing sufficiency of evidence under proper legal instruction , in case where
court of appeals held that district court failed to properly instruct the jury). But the
government then urges this Court to follow a handful of other circuits that have , for
policy reasons , refused to apply this well-settled practice in cases where an
intervening decision alters the law that governed the trial.
Tellingly, the government ignores the Fifth Circuit' s decision in United
States v. Miler 952 F.2d 866 (5th Cir. 1992), a post- McNally decision that
squarely addressed the same Double Jeopardy problem raised by this case. 3 The
Miler defendants had been convicted of honest services fraud pre- McNally, but
their convictions were reversed after the Supreme Court eliminated the doctrine of
honest services fraud. Id. at 870- 871. When the government attempted to retry
the defendants under charges of property- based mail fraud , the defendants argued
that Double Jeopardy barred the new trial because "the evidence at the first trial
was insufficient to support a conviction on a valid mail fraud theory. Id. at 871.
However , because the original appellate panel did not review the sufficiency of the
3 Although the government does discuss a different

United States v. Miler it is a
decision from the Tenth Circuit that also supports Mr. Bruno See
s argument.
Gov t Br. at 34 (citing United States v. Miler 84 F. 3d 1244 , 1258 (10th Cir.
1996), overruled on other grounds , United States v.Holland 116 F. 3d 1353 (10th
Cir. 1997) (courts should remand for new trial " only if the jury could have returned
a guilty verdict if properly instructed"
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evidence after the first trial , the Miler Court was forced to hold that the defendants
could not maintain any Double Jeopardy argument. Id. at 871- 873 (noting that
defendants had raised their sufficiency challenge during the first appeal , but that it
had not been resolved). For that reason , the Fifth Circuit stressed that the best
course of action was for reviewing courts to always conduct such an inquiry. Id.
874 (" (I)t is accordingly clearly the better practice for the appellate court on an
initial appeal to dispose of any claim properly presented to it that the evidence at
trial was legally insufficient to warrant the thus challenged conviction. ). The
Miler Court made no distinction for cases in which there was a change of law-
indeed , the issue arose in Miller precisely because in McNally, the Supreme Court
had changed the law.
Nor is there any principled basis to draw such a distinction. The government
insists that it would be "unjust" to prevent retrials in cases where prosecutors
believed they had proceeded correctly based upon controlling law. Gov t Br. at 35.
But regardless of whether the instructions given at trial are erroneous because of an
intervening decision or because of simple mistake , the government always must be
presumed to have sought flawed instructions based upon its good- faith belief of
what the law required at the time of trial. As a result , this same " injustice " occurs
every time a conviction is overturned due to flawed jury instructions-not only
when the appellate reversal is due to an intervening change in law. In other
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circumstances , this circuit and others unquestionably review the sufficiency of the
evidence before resolving any appeal. See , e. g., Ford 435 F. 3d at 214. This Court
should therefore follow Miller and do the same in this case , regardless of the
government' s belief that its trial errors were attributable to Skiling. Such a rule
best respects the common situation that all defendants find themselves in after they
have been subjected to full trials under incorrect legal theories.
Indeed , the government' s policy arguments are particularly weak in the
instant case. Nothing in Skiling changed the legal standards governing bribery or
kickback cases. Rather , the government created its own problem here by pressing
the version of the case it considered easiest to prove , rather than pursuing bribery
charges as an alternative theory. This is not a case where the government
diligently pursued a single theory of criminality only to have the Supreme Court
alter the relevant standards after the fact. Compare Bruno Br. at 37 (discussing
mixed- theory cases that have survived Skillng). Rather , this is a case where the
government intentionally decided to not pursue bribery charges against Mr. Bruno
regretting its tactical decision only after the Supreme Court invalidated the theory
the government chose to pursue.
The Court should not permit the government to try its cases II such a
piecemeal fashion. The government already had " one fair opportunity to offer
whatever proof it could assemble see Burks 437 U. S. at 16 , and it made the
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calculated decision to not present a bribery case. As a result , if the government'
evidence at trial was not sufficient to prove a bribery-theory honest services case
then this Court must dismiss the government' s case with prejudice.
III. THE GOVERNMENT' EVIDENCE AT TRIAL WAS

INSUFFICIENT TO PROVE MR. BRUNO GUILTY OF ANY
VALID BRIBERY CHARGES.
The hallmark of bribery or kickback case is that government must prove the
existence of a quid pro quo- the corrupt agreement to exchange political favor for
personal gain. See , e. g., United States v. Ganim 510 F. 3d 134 , 141 (2d Cir. 2007).
Although the government is correct that , under the law of this circuit , the
government need not tie any specific payment to a specific official act , the
government still must prove a specific intent-Mr. Bruno s corrupt agreement to
exercise " particular kinds of influence or decision making to the benefit of the
payor " in exchange for payment. Id. at 149.
During the trial below , the government never sought to prove the existence
of such a quid pro quo agreement with respect to the charges at issue on appeal. 4
4 Although the government points to scattered discussions in the record regarding

quid pro quo in context it is clear that those comments referred to the
government' s case under the counts relating to Mr. Bruno s dealings with various
unions while employed by Wright Investors ' Services and McGinn , Smith & Co.
Inc. Bruno Br. at 14-
counts for which the jury acquitted Mr. Bruno. See
(explaining difference between union counts and private business counts); GA37-
38 (district court quid pro made in context of union
statements regarding quo
counts ).
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Instead , the government now claims that it inadvertently presented enough
circumstance evidence that , by piling inference upon inference , a jury could
nevertheless have found Mr. Bruno guilty of bribery. But even when the evidence
is viewed in the light most favorable to the government , it cannot support such
tenuous claims.

Fassler (Count 3).
With respect to Count 3 , the government argues that Mr. Bruno
professional relationship with various companies associated with Mr. Fassler was
improper. See Gov t Br. at 20-22. But the government cannot transform its vague
concerns regarding Mr. Bruno s disclosure of these relationships into a credible
bribery case. Indeed , given that the jury could not even agree that this conduct
violated the now-aborted nondisclosure theory of honest services fraud , it is
unthinkable that a jury would have convicted Mr. Bruno of the stricter crime of
bribery based upon the same evidence. Instead , review of the three situations
described by the government confirms that Mr. Bruno never agreed to exchange
any political favor on Mr. Fassler s behalf in exchange for monetary gain-
conclusion confirmed by the fact that Mr. Bruno took no relevant actions on Mr.
Fassler s behalf.
First , the government insinuates that Mr. Bruno had some hand in the
February 2003 , decision to award Aviation Learning, Inc. a $250 000 equity
- 18 -
investment. See Gov t Br. at 21 (citing GAI95). But , as the government' s own
evidence establishes , that grant was awarded by the Empire State Development
Board of Directors through its Small Business Technology Investment Fund. See
GA195. Uncontradicted evidence at trial-the testimony of Empire State s former
senior manager , David Catalfamo- established that the Board conducted its own
independent review of potential investments based upon objective criteria , that
members of the Legislature such as Mr. Bruno had no role in any decisions made
by the Fund , and that Mr. Bruno never contacted the Fund regarding Aviation
Learning. RA000051- 056. Furthermore , as the government acknowledges
Aviation Learning turned down the investment. Gov t Br. at 21 (citing GAI56);
see also RA000057- 060. Indeed , the founder and CEO of Aviation Learning, John
Marszalek , took the stand at trial and explained that: (1) he never took any money
from New York State , RA000059; (2) he did not know Mr. Fassler or Fassler
company, Interliant , and neither invested in his company, RA000057- 058; and
(3) he never met or had any conversations with Mr. Bruno about receiving money
from New York State , RA000058. Mr. Fassler likewise confirmed that he never
had any interest in Aviation learning and never discussed it with Mr. Bruno.
RA000007- 008. As a result , there is no basis for a jury to hold that Mr. Bruno
5 Citations to "
RA#" refer to pages in the supplemental Reply Appendix filed
alongside this brief.
- 19 -
agreed or offered to exercise power he did not possess over an equity investment
that Aviation Learning never accepted.
Second , the government notes that a second company associated with Mr.
Fassler , Convergence Technologies , received an investment from the state
common retirement fund in February 2005. Gov t Br. at 21 (citing GA27-
197- 198). But the government does not appear to make any accusations of
impropriety regarding this investment. Rather , the government admits that Mr.
Fassler never paid Mr. Bruno any consulting fees in connection with Convergence.
Gov t Br. at 21-22 (citing GA29). The record also shows that the investment at
issue was made by the New York Common Retirement Fund with the help of a
company named Founder s Equity-not Mr. Bruno. See GA 197- 198; see also
RA000008- 011 (confirming that legislature had nothing to do with Founder
Equity decision to invest in Convergence).
Finally, the government points to Mr. Bruno s service as a consultant for
VyTek Wireless , a company in which Mr. Fassler owned less than a 5% interest.
RA000006. The government notes that , in April 2002 , Mr. Bruno met with "
team , including Vytek , that was bidding on a $2 billion statewide wireless project."
Gov t Br. at 21. However , it is uncontroverted that the contract was awarded to
another bidder see id. and the government acknowledged below that Mr. Bruno
- 20 -
did not " do anything " relating to helping VyTek bid on the contract. RA000069-
070.
To establish quid pro quo the government would have to have prove that
Mr. Bruno solicited or received consulting fees from the so-called Fassler
companies in exchange for a corrupt promise to exercise his official power on their
behalf. See , e. g., Ganim 510 F. 3d at 141. But all the government offered below
was proof that Mr. Bruno took no actions on behalf of the Fassler companies , nor
did the Fassler companies reap any rewards due to their employment of Mr. Bruno.
This paltry record provides no basis that could lead a reasonable jury to conclude
that , even though Mr. Bruno never provided any improper benefit to the Fassler
companies , he nevertheless formed a corrupt agreement to do so. The evidence
below was not enough for the jury to convict on the easier- to- prove nondisclosure
theory. Even when interpreted favorably to the government , the evidence was
clearly not enough to prove a quid pro quo agreement. F or this reason , the
government cannot constitutionally retry Mr. Bruno under Count 3.

Abbruzzese (Counts 4 & 8).
With respect to Mr. Bruno s professional relationships with Mr. Abbruzzese
the government' s entire quid pro quo case is based upon coincidences of timing.
Because the state government finally fulfilled part of its longstanding
commitments to Evident Technologies shortly after Mr. Bruno and Mr.
- 21 -
Abbruzzese discussed forming a consulting relationship, the government suggests
that a jury could find that Mr. Bruno solicited money from Mr. Abbruzzese in
exchange for that government payment. But when that argument is considered in
the context of all the evidence introduced at trial- including the rest of the
evidence the government solicited from its own witnesses-then it becomes clear
that no reasonable jury could have convicted Mr. Bruno of bribery based upon the
evidence the government presented at trial.
The government points to two general premises that it claims could lead a
jury to conclude that Mr. Bruno solicited or accepted bribes: (1) Mr. Bruno
received consulting fees from some of the Abbruzzese companies and sold his
share of a horse to Mr. Abbruzzese , and (2) Evident received some grant money
from the New York state government. But even though the government casts
aspersions on both these facts , neither supports the government' s newfound bribery
accusations.
First , with respect to the payments Mr. Bruno received , the government
contends that there was " overwhelming " evidence that " neither the ' consulting
nor the ' horse ' payments were legitimate. " Gov t Br. at 44-46. Yet the evidence
does not actually support the government' s characterization. It is undisputed the
New York State Legislature, like many state governmental bodies nationwide , is a
part- time " legislature , and that its members are both permitted and often
- 22-
encouraged to hold outside jobs. It is also undisputed that Mr. Bruno had an
extensive personal background in business issues , particularly relating to the
telecom industry, given his prior experience as one of the first people to build a
successful franchise in the telephone equipment arena. RA000032- 034
(discussing background); RA000016 (same); RAOOOOOI- 005 (same). For these
reasons , Mr. Abbruzzese testified that he hired Mr. Bruno as a consultant based
upon his belief Mr. Bruno s business acumen and historic successes allowed him to
add value to the entities that hired him. RA000032-034. As such , although the
government would like to pretend that Mr. Bruno s consulting work was worthless
those who received it consistently stated that they believed Mr. Bruno provided
real value as a business advisor. Likewise , while the government is happy to focus
on the ultimate disposition of Christie s Night Out , the horse that Mr. Abbruzzese
bought a portion of from Mr. Bruno , the government ignores the uncontradicted
evidence that Mr. Abbruzzese invested a fair amount of time and money into that
horse before ultimately giving it away, and that the horse also had sentimental
value to his wife , who had named it after her best friend. RA000041- 043. As a
result , even when viewing the evidence favorably to the government , the entirety
of the evidence below cannot reasonably support the conclusion that any payments
made to Mr. Bruno were not supported by legitimate business motivations.
- 23 -
Second , the government attempts to draw inferential connections between
Mr. Bruno and various payments that Evident received over the years from the
New York government or other alleged " favorable treatment of Abbruzzese
interests. " Gov t Br. at 40-43. But once again , the uncontradicted evidence shows
that Mr. Bruno did not steer any government funds to Evident or otherwise abuse
his position. The government focuses primarily on a grant of $250 000 that was
paid to Evident in February 2004 , which the government claims that Mr. Bruno
controlled. See Gov t Br. at 6 , 41. But the evidence does not support the
government' s view.
On a general level , it is undisputed that the $250 000 payment was made in
partial fulfillment of a $1.5 million commitment that Governor Pataki made to
Evident in 2002- long before there was any business relationship between Mr.
Bruno and Mr. Abbruzzese. See , e. RA000044- 049 (discussing Governor
Pataki' s role in awarding original commitment to Evident); RA000020 (money
committed to evidence in 2002); RA000061 , 062- 063 (testimony of Evident CEO
confirming same). This money was promised as part of a larger governmental
drive towards investing in nanotechnology development within the state , and as
such was awarded through an objective process that in no way involved either Mr.
Bruno or the legislature in general. See RA000054- 055 (testimony of senior
manager of Empire State Development , which awarded the grant to Evident in
- 24-
g.,
2002). As a result , there is no basis upon which to tie the government' s general
investment in Evident to Mr. Bruno.
The government nevertheless focuses its accusations on the timing of a sub-
payment of that commitment , made shortly after Mr. Bruno and Mr. Abbruzzese
began discussions about employing Mr. Bruno as a consultant. Gov t Br. at 6 , 41.
But it is undisputed that Mr. Bruno exercised no personal influence over the
decision to facilitate that payment. Rather , the evidence establishes that
throughout the end of 2003 and early 2004 , Evident was complaining to Mr. Bruno
and others that the government had delayed its promised payments under the 2002
grant , but Mr. Bruno was paying little attention to the issue. See , e. Gov t Br. at
40-41 (discussing Mr. Bruno s lack of involvement or interest in the Evident
matter). In response , Mr. Bruno ultimately delegated the issue to Mary Louise
Mallick , a Secretary to the Senate Finance Committee with personal experience in
investigating nanotechnology companies. See RA000021- 023; RA000029. Mr.
Bruno asked Ms. Mallick to conduct a diligent independent analysis of whether to
facilitate payment to Evident. See RA000024; RA000064. Once Ms. Mallick
completed her review and recommended approving the request , Mr. Bruno
deferred to her recommendation , and she authorized the $250 000 payment to
Evident based upon her independent determination that such a payment was
warranted. RA000025- 026 027- 028.
- 25 -
Beyond that , the government points to a scattered array of other minor
decisions that Mr. Bruno allegedly had involvement in , but these are too detached
remote , or random to support any charge of bribery. The government complains
that Mr. Bruno recommended Mr. Barr for a seat on the board of the New York
Racing Association ("NYR" ) in 2004 , because Mr. Abbruzzese would later show
an interest in bidding on the NYRA franchise operation. Gov t Br. at 41-42. But
Mr. Barr testified that he resigned from the NYRA board once Mr. Abbruzzese
determined that he was going to bid on the franchise , in order to specifically avoid
any potential conflict of interest. RAOOOOI3- 014. In any event , the franchise
contract was to be awarded through an open RFP process over which Mr. Bruno
had no control , and ultimately the contract was not awarded to Mr. Abbruzzese
interested entity nor anyone else. RAOOOO 15. Likewise , the government attempts
to link the horse transaction to what it describes as " a $2. 5 million grant benefitting
Evident" in 2005 , Gov t Br. at 43 6 but the uncontradicted evidence establishes that
this was an independently-vetted grant was made to the Russell Sage College-
Evident " benefitted" only to the extent that Evident and other tenants were going to
lease office space from the College , and Evident was not the recipient of this
6 This argument is radically different from the government' s theory at trial , where
it instead linked the horse transaction to Mr. Bruno s allegedly- improper
relationship with TerreStar. RA000071- 072 (discussing horse payment). The
See
jury acquitted Mr. Bruno of the Count involving TerreStar.
- 26 -
g.,
money. RA000030; see also RA000065- 68 (testimony of then- president of Sage
Colleges explaining history for grant and Mr. Abbruzzese s lack of involvement).
These scattered events cannot be strung together to become the quo of a bribery
charge.
At trial , the government did not present any direct evidence of any
relationship between Mr. Bruno s consulting employment and Evident. Instead
every witness who testified on the subject concurred that Mr. Bruno s employment
as a consultant had nothing to do with his professional decisionmaking, and that
Evident' s receipt of government money was based on independent determinations
by persons other than Mr. Bruno. For example , Mr. Abbruzzese consistently
testified that Mr. Bruno had no relationship with Evident , than none of his business
dealings with Mr. Bruno were intended to influence his professional

decisionmaking, and that there was simply no connection between Mr. Bruno
work as a consultant and Evident. See RA000035- 036; RA000039- 040;
RA000050. Mr. Barr concurred that Mr. Bruno did not work for Evident and that
there was no connection between Mr. Bruno s consulting agreements and the state
grants to Evident. RAOOOOI7; RAOOOOI8- 019. Moreover , Mr. Bruno s ethics
counsel oversaw the drafting of the consulting agreements , further support for the
fact that the parties had no illicit intent. See , e. RA000037; RA000038- 039.
Indeed , the jury that deliberated over the counts of the indictment relating to Mr.
- 27 -
Abbruzzese actually acquitted Mr. Bruno on two of those counts , relating to a
much lesser charge of nondisclosure of a conflict of interest.
The government , of course , stresses that the evidence must be viewed in the
light most favorable to it , but even favorable inferences have their limits. Messrs.
Abbruzzese and Barr testified at trial subject to grants of full immunity from the
government , guaranteeing that they would not be punished if they implicated Mr.
Bruno in any wrongdoing. RAOOOOI2; RA000031. As a result , they had no
reason to lie about their arrangements with Mr. Bruno and would , in fact , be
subject to perjury charges if they had done so. Yet if their testimony is credited
then the government' s bribery case falls apart , because they are crystal clear that
Mr. Bruno never solicited nor received any bribes , nor did he ever offer to exercise
his political power on Evident' s behalf in exchange for personal gain. The
government' s entire case therefore presumes that its own immunized witnesses
were lying through their teeth- a proposition no reasonable jury would accept.
In the end , there is a reason that the government never charged Mr. Bruno
with bribery in 2009 , when it had the chance-it knew that such a case was
destined for failure. Although the government has cobbled a handful of facts
together into what it considers a bribery case , no reasonable jury who heard the
entirety of the evidence below would convict Mr. Bruno of bribery. For that
reason , the evidence at trial was insufficient to convict Mr. Bruno under any
- 28 -
constitutionally-valid theory of honest services fraud , and so the government' s case
against him must be dismissed with prejudice.
CONCLUSION
F or the reasons set forth above and in the opening brief, this Court should
(1) vacate Mr. Bruno s conviction and sentence , (2) dismiss all charges against
him , and (3) bar the government from retrying Mr. Bruno under a bribery-or-
kickback theory.
DATED: April 7 , 2011 Respectfully submitted
William J. Dreyer Abbe David Lowell

DREYER BOYAJIAN LLP Paul M. Thompson
75 Columbia Street Jeffrey W. Mikoni
Albany, NY 12210 McDERMOTT WILL & EMERY LLP
(518) 463- 7784 600 Thirteenth St. , N.
Washington , D. C. 20005- 3096
(202) 756- 8000
Attorneys for Defendant-Appellant Joseph L. Bruno
- 29 -
CERTIFICATE OF COMPLIANCE
Counsel hereby certifies that , pursuant to Fed. R. App. P. 32(a)(7)(C), the
attached Reply Brief of Defendant- Appellant Joseph L. Bruno is proportionately
spaced , has a typeface of 12 points or larger , and contains 6 975 words , excluding
those portions of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). Counsel
relies upon the word count provided by their word-processing software in making
this certification.
Jeffrey W. Mikoni
- 30 -

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Case: 10-1885 Document: 62 Page: 1 04/07/2011 256876 34

No. 10- 1885

UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA

On Appeal from the United States District Court

REPL Y BRIEF OF DEFENDANT - APPELLANT

William J. Dreyer Abbe David Lowell

Attorneys for Defendant-Appellant Joseph L. Bruno

The Court Must Review The Validity Of The Actual Indictment

Although The Issue Is Not Properly Before The Court At This

II. THIS COURT MUST CONSIDER THE SUFFICIENCY OF THE

Mr. Bruno Did Not Solicit Or Accept Bribes From Mr.

Burks United States

Hamling United States

McNally United States

483 U. S. 350 (1987).................................................................................. , 14 , 15

Mossew United States

266 F. 18 (2d Cir. 1920)..................................................................................... , 7

Richardson United States v.

468 U. S. 317 (1984)........................................................................................ , 13

Skiling v. United States

United States Carll v.

105 U. S. 611 (1882)............................................................................................... 5

United States v. Ford

United States GAF Corp. v.

928 F.2d 1253 (2d Cir. 1991) .................................................................................

United States Ganim v.

510 F. 3d 134 (2d Cir. 2007)............................................................................

United States Grady v.

544 F.2d 598 (2d Cir. 1976)................................................................................... 9

United States v. Holland

United States v. Ismail

97 F. 3 d 50 (4th Cir. 1996)...................................................................................... 8

United States Italiano v.

894 F.2d 1280 (1Ith Cir. 1990) ....................................................................... , 11

United States v. Miler

United States v. Miler

United States v. Pirro

United States v. Prigmore

United States v. Salmonese

United States Schaefer v.

No. Sl:07- CR- 498 , 2008 WL 2332369 (S. Y. Jun. 2 2008)............................ 7

United States Seminerio

No. S:08- CR- 1238 , 2010 WL 3341887 (S. Y. Aug. 20 2010)......................

United States Wallach v.

979 F.2d 912 (2d Cir. 1992) ................................................................................. .13

that decisions have consequences.

In 2009 , the government made strategic choice to pursue only

effort to find some way to revive its defective prosecution.

This Court should not be swayed by the government' s arguments. The

government intends to file a superseding indictment , the defects in the original

The Indictment Failed To Charge Mr. Bruno With Any

defects in the government' s case are far more fundamental.

As Mr. Bruno explained in his opening brief , prior to Skiling, 18 U.

~ 1346 was viewed as criminalizing two different courses of conduct-the

acceptance of bribes or kickbacks , and the nondisclosure of material information.

discussing two distinct theories of honest services fraud); JA000263 , 265-268

charge him with any constitutionally-valid crime.

nondisclosure of material information was so vague a concept that it could not be

Mr. Bruno-the failure to disclose material information to the public.

As a result , the government' s mistakes below cannot be cast as mere

only as a nondisclosure case. See Bruno Br. at 27- 34 (collecting examples of

government agreeing that indictment only charged nondisclosure theory). Thus