Government Brief

Case: 10-1885 Document: 50 Page: 1 03/24/2011 243847 71
10-1885 To be Argued by: E LIZABETH C. C OOMBE
United States Court of Appeals

FOR THE SECOND CIRCUIT
Docket No. 10-1885
UNITED STATES OF AMERICA

Appellee,
v.
JOSEPH L. BRUNO,
Defendant-Appellant.
O N A PPEAL FROM THE U NITED S TATES D ISTRICT C OURT
FOR THE N ORTHERN D ISTRICT OF N EW Y ORK
BRIEF FOR APPELLEE UNITED STATES OF AMERICA
RICHARD S. HARTUNIAN
United States Attorney
for the Northern District of
New York
445 Broadway
Albany, NY 12202
Telephone: 518-431-0247
ELIZABETH C. COOMBE
WILLIAM C. PERICAK
BRENDA K. SANNES
Assistant United States Attorneys
Of Counsel
TABLE OF CONTENTS
PAGE
PRELIMINARY STATEMENT. . . . . . . . . . . . . . . . . 1
STATEMENT OF THE ISSUES PRESENTED. . . . . . . 2
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . 4
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . 5
A. Overview. . . . . . . . . . . . . . . . . . . . . . . . . . . 5
B. In 2002 And 2003, Abbruzzese Is

Actively Trying To Obtain State
Grant Money For Evident. . . . . . . . . . . . . . 7
C. In February 2004, Bruno Solicits

Abbruzzese For Money And Then
“Moves” Money To Evident. . . . . . . . . . . . 9
D. Bruno Nominates Abbruzzese’s Business

Partner To The NYRA Board And
Invests In A Horse Partnership
With Abbruzzese.. . . . . . . . . . . . . . . . . . . 13
E. Abbruzzese Promises To Pay Bruno

$80,000 For A One-Third Interest In A
Worthless Horse. . . . . . . . . . . . . . . . . . . . 14
ii
PAGE
F. Evident Credits Abbruzzese With

Obtaining A $2.5 Million State Grant
From Bruno Benefitting Evident, The
Final Third Of The Warrant Vests, And
Abbruzzese Pays Bruno $40,000 For The
Worthless Horse. .. . . . . . . . . . . . . . . . . . . 17
G. Abbruzzese’s Remaining $40,000 Debt

For The Worthless Horse Is Forgiven
When Abbruzzese Terminates His
Interest In The Six Horses Still Owned
By The Partnership. . . . . . . . . . . . . . . . . . 18
H. Bruno Conceals The Payments He

Receives From Abbruzzese’s
Companies. . . . . . . . . . . . . . . . . . . . . . . . . 18
I. Bruno Is Paid More Than $400,000

By Companies Controlled by
Leonard Fassler. . . . . . . . . . . . . . . . . . . . . 20
SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . 22
ARGUMENT
POINT I:
This Court Should Vacate The Convictions
On Counts 4 And 8 Because The Jury
Instructions, Although Proper When Given,
Are Erroneous Under Skilling.. . . . . . . . . . . . . 23
iii
PAGE
A. Standard of Review.. . . . . . . . . . . . . . . . . 23
B. The District Court’s Jury Instructions. . . 24
C. Discussion. . . . . . . . . . . . . . . . . . . . . . . . . 27
POINT II:
The Double Jeopardy Clause Does Not Bar
Retrial On The Hung Count, Or The Counts
Of Conviction, And They Should Be
Remanded For A New Trial Without
Considering The Sufficiency Of The
Evidence Under The New Skilling Standard. . 29
A. The Double Jeopardy Clause Does Not

Bar Retrial Where A Mistrial Is Declared
Or Where Reversal Is Based On Error In
Jury Instructions... . . . . . . . . . . . . . . . . . . 30
B. Although This Court, In Some

Circumstances, Entertains Claims That
There Was Insufficient Evidence Where
A Conviction Has Been Reversed For A
Trial Error, A Majority of Circuits Hold
That Where An Instructional Error
Results From An Intervening Decision,
Sufficiency Review Should Not Be
Conducted Under The New Standard,
And This Court Should Adopt That
Rule. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
iv
PAGE
POINT III:
The Evidence Was Sufficient To Convict On
Both Counts 4 And 8 Under The Skilling
Standard.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
A. Standard Of Review. . . . . . . . . . . . . . . . . 36
B. Applicable Law. . . . . . . . . . . . . . . . . . . . . 37
C. Discussion. . . . . . . . . . . . . . . . . . . . . . . . . 40
POINT IV:
To The Extent That Skilling May Have
Caused Any Legal Deficiency In The
Indictment, It Will Be Cured By A
Superseding Indictment.. . . . . . . . . . . . . . . . . . 48
CONCLUSION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
TABLE OF AUTHORITIES
FEDERAL CASES
Adler v. Pataki,
185 F.3d 35 (2d Cir. 1999). . . . . . . . . . . . . . . . 51
Burks v. United States,

437 U.S. 1 (1978). . . . . . . . . . . . . . . . . . . . . . . 30
Evans v. United States,

504 U.S. 255 (1992). . . . . . . . . . . . . . . 29, 39, 55
v
PAGE
Howard v. United States,

345 F.2d 126 (1st Cir. 1965). . . . . . . . . . . . . . 38
Lockhart v. Nelson,
488 U.S. 33 (1988). . . . . . . . . . . . . . . . . . . 30, 33
McNally v. United States,

483 U.S. 350 (1987). . . . . . . . . . . . . . . . 2, 50, 55
Mulvaney Mechanic, Inc. v. Sheet Metal

Workers International Association, Local 38,
288 F.3d 491 (2d Cir. 2002), vacated on
other grounds, 538 U.S. 918 (2003). . . . . . . . 51
Mulvaney Mechanic, Inc. v. Sheet Metal

Workers International Association, Local 38,
538 U.S. 918. . . . . . . . . . . . . . . . . . . . . . . . . . . 51
New Hampshire v. Maine,

532 U.S. 742 (2001). . . . . . . . . . . . . . . . . . . . . 52
Office of Person Management v. Richmond,

496 U.S. 414 (1990). . . . . . . . . . . . . . . . . . . . . 51
Price v. Georgia,
398 U.S. 323 (1970). . . . . . . . . . . . . . . . . . . . . 31
Richardson v. United States,

468 U.S. 317 (1984). . . . . . . . . . . . . . . . . . 31, 53
vi
PAGE
Skilling v. United States,

__U.S.__, 130 S. Ct. 2896 (2010). . . . . . passim
United States v. Aliperti,

867 F. Supp. 142 (E.D.N.Y. 1994). . . . . . . . . . 55
United States v. Biaggi,

909 F.2d 662 (2d Cir. 1990). . . . . . . . . . . passim
United States v. Bibbero,

749 F.2d 581 (9th Cir. 1984). . . . . . . . . . . 33, 34
United States v. Brewster,

408 U.S. 501 (1972). . . . . . . . . . . . . . . . . . . . . 38
United States v. Coyne,

4 F.3d 100 (2d Cir. 1993). . . . . . . . . . . . . . . . . 38
United States v. Davis,

873 F.2d 900 (6th Cir. 1989). . . . . . . . . . . 34, 53
United States v. Doherty,

867 F.2d 47 (1st Cir. 1989). . . . . . . . . . . . . . . 54
United States v. Draper,

553 F.3d 174 (2d Cir. 2009). . . . . . . . . . . . . . . 30
United States v. Ellyson,

326 F.3d 522 (4th Cir. 2003). . . . . . . . . . . . . . 33
vii
PAGE
United States v. Ford,

435 F.3d 204 (2d Cir. 2006).. . . . . . . . . . . 32, 36
United States v. Friedman,

854 F.2d 535 (2d Cir. 1988).. . . . . . . . 39, 40, 43
United States v. GAF Corp.,

928 F.2d 1253 (2d Cir. 1991).. . . . . . . . . . . . . 49
United States v. Ganim,

510 F.3d 134 (2d Cir. 2007).. . . . . 37, 38, 39, 52
United States v. Garcia,

992 F.2d 409 (2d Cir. 1993).. . . . . . . . . . . 24, 29
United States v. Gonzalez,

93 F.3d 311 (7th Cir. 1996). . . . . . . . . . . . . . . 35
United States v. Grady,

544 F.2d 598 (2d Cir. 1976).. . . . . . . . . . . . . . 50
United States v. Gray,

705 F. Supp. 1224 (E.D. Ky.1988). . . . . . . . . 53
United States v. Hamling,

418 U.S. 87 (1974). . . . . . . . . . . . . . . . . . . . . . 55
United States v. Hardwick,

523 F.3d 94 (2d Cir. 2008).. . . . . . . . . . . . . . . 33
viii
PAGE
United States v. Holland,

116 F.3d 1353 (10th Cir. 1997). . . . . . . . . . . . 34
United States v. Ismail,

97 F.3d 50 (4th Cir. 1996). . . . . . . . . . . . . . . . 49
United States v. Italiano,

894 F.2d 1280 (11th Cir. 1990). . . . . . . . . . . . 50
United States v. Jespersen,

65 F.3d 993 (2d Cir. 1995). . . . . . . . . . . . . 36, 37
United States v. Jovino,

960 F.2d 1137 (2d Cir. 1992). . . . . . . . . . . . . . 32
United States v. Kattar,

840 F.2d 118 (1st Cir. 1988). . . . . . . . . . . . . . 51
United States v. Macklin,

535 F.2d 191 (2d Cir. 1976). . . . . . . . . . . . . . . 50
United States v. Malone,

No. 02:03-CR-00500, 2006 WL 2583293
(D. Nev. Sept. 6, 2006). . . . . . . . . . . . . . . . . . . 55
United States v. Margiotta,

688 F.2d 108 (2d Cir. 1982). . . . . . . . . . . . . . . . 1
United States v. McCaskey,

9 F.3d 368 (5th Cir. 1993). . . . . . . . . . . . . . . . 51
ix
PAGE
United States v. McDonough,

56 F.3d 381 (2d Cir. 1995).. . . . . . . . . . 1, 25, 46
United States v. Middlemiss,

217 F.3d 112 (2d Cir. 2000).. . . . . . . . . . . . . . 48
United States v. Miller,

84 F.3d 1244 (10th Cir. 1996), overruled
on other grounds, United States v. Holland,
116 F.3d 1353 (10th Cir. 1997). . . . . . . . . . . . 34
United States v. Miller,

952 F.2d 866 (5th Cir. 1992). . . . . . . . . . . . . . 53
United States v. Myers,

692 F.2d 823 (2d Cir. 1982).. . . . . . . . . . . 37, 38
United States v. Needham,

604 F.3d 673 (2d Cir. 2010).. . . . . . . . . . . . . . 24
United States v. Panarella,

277 F.3d 678 (3d Cir. 2002).. . . . . . 1, 26, 27, 52
United States v. Pearl,

324 F.3d 1210 (10th Cir. 2003). . . . . . . . . . . . 35
United States v. Prigmore,

243 F.3d 1 (1st Cir. 2001). . . . . . . . . . . . . . . . 49
United States v. Quinones,

511 F.3d 289 (2d Cir. 2007).. . . . . . . . . . . . . . 51
x
PAGE
United States v. Recio,

371 F.3d 1093 (9th Cir. 2004). . . . . . . . . . . . . 52
United States v. Riley,

621 F.3d 312 (3d Cir. 2010). . . . . . . . . . . . . . . 29
United States v. Robison,

505 F.3d 1208 (11th Cir. 2007). . . . . . . . . 33, 35
United States v. Rybicki,

354 F.3d 124 (2d Cir. 2003). . . . . . . . . . 1, 24, 52
United States v. Salmonese,

352 F.3d 608 (2d Cir. 2003). . . . . . . . . . . . . . . 50
United States v. Schaefer,

No. S1:07-CR-498, 2008 WL 2332369
(S.D.N.Y. Jun. 2, 2008). . . . . . . . . . . . . . . . . . 49
United States v. Seminerio,

No. S1:08-CR-1238, 2010 WL 3341887
(S.D.N.Y. Aug. 20, 2010).. . . . . . . . . . . . . 38, 54
United States v. Slay,

717 F. Supp. 689 (E.D. Mo. 1989). . . . . . . . . . 53
United States v. Smith,

82 F.3d 1564 (10th Cir. 1996). . . . . . . . . . . . . 34
United States v. Temple,

447 F.3d 130 (2d Cir. 2006). . . . . . . . . . . . . . . 36
xi
PAGE
United States v. Triumph Capital Group, Inc.,

544 F.3d 149 (2d Cir. 2008).. . . . . . . . . . . . . . 47
United States v. Urciuoli,

613 F.3d 11 (1st Cir. 2010). . . . . . . . . 39, 44, 47
United States v. Ustica,

847 F.2d 42 (2d Cir. 1988).. . . . . . . . . . . . . . . 31
United States v. Vasquez,

85 F.3d 59 (2d Cir. 1996).. . . . . . . . . . . . . . . . 24
United States v. Wacker,

72 F.3d 1453 (10th Cir. 1995). . . . . . . . . . . . . 34
United States v. Wallach,

979 F.2d 912 (2d Cir. 1992).. . . . . . . . . . . . . . 33
United States v. Walsh,

194 F.3d 37 (2d Cir. 1999).. . . . . . . . . . . . . . . 56
United States v. Weems,

49 F.3d 528 (9th Cir. 1995). . . . . . 33, 34, 35, 53
FEDERAL STATUTES
18 U.S.C. § 201. . . . . . . . . . . . . . . . . . . . . . 24, 37, 38
18 U.S.C. § 666. . . . . . . . . . . . . . . . . . . . . . . . . 24, 37
18 U.S.C. § 1341. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
xii
PAGE
18 U.S.C. §1343.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
18 U.S.C. § 1346. . . . . . . . . . . . . . . . . . . . . . . . . . 1, 4
18 U.S.C. § 1951. . . . . . . . . . . . . . . . . . . . . . . . . . . 37
18 U.S.C. § 3288. . . . . . . . . . . . . . . . . . . . . . . . 23, 50
41 U.S.C. § 52(2). . . . . . . . . . . . . . . . . . . . . . . . . . . 24
MISCELLANEOUS
House Comm. on the Judiciary Report, H.R.

Rep. No. 87-748 (1961). . . . . . . . . . . . . . . . . . 38
United States Court of Appeals

FOR THE SECOND CIRCUIT
Docket No. 10-1885
________________
UNITED STATES OF AMERICA,
Appellee,
– v. –
JOSEPH L. BRUNO,
Defendant-Appellant.
________________
BRIEF FOR THE UNITED STATES OF AMERICA

________________
PRELIMINARY STATEMENT
This case arises out of honest-services mail fraud

convictions related to $280,000 paid to the New York
State Senate Majority Leader at the direction of an
Albany businessman who was seeking, and obtained,
official action benefitting his interests. Although
substantial proof of a quid pro quo was admitted during
trial, the jury instructions were based on this Circuit’s
case law approving a failure to disclose theory, United
States v. Rybicki, 354 F.3d 124, 145 (2d Cir. 2003) (en
banc); United States v. McDonough, 56 F.3d 381, 391
(2d Cir. 1995); United States v. Margiotta, 688 F.2d
108, 128 (2d Cir. 1982), and on United States v.
Panarella, 277 F.3d 678, 697 (3d Cir. 2002). The jury
was not required to find a quid pro quo.
On June 24, 2010, the Supreme Court decided that

the honest-services statute, 18 U.S.C. § 1346,
“encompass[es] only bribery and kickback schemes,”

and “its prohibition on bribes and kickbacks draws
content not only from the pre-McNally1 case law, but
also from federal statutes proscribing – and defining –
similar crimes.” Skilling v. United States, __ U.S. __,
130 S.Ct. 2896, 2933 (2010).
The government has conceded that the district

court’s jury instructions, although proper when given,
did not comply with the requirements later announced
in Skilling, and that reversal is appropriate as a result of
the instructional error. Addendum to Bruno Br. at 1-3.
The government requests a remand without prejudice
to retry Bruno. Id.
STATEMENT OF THE ISSUES PRESENTED
1. Whether the counts of conviction (Counts 4

and 8) should be vacated, where the government has
conceded plain error because the jury instructions,
although proper when given, are erroneous under
Skilling.
2. Whether the honest-services mail fraud count

on which the jury hung (Count 3) should be remanded
without considering the sufficiency of the evidence
because a hung jury is not a jeopardy-terminating
event, and retrial is permitted regardless of the
sufficiency of the evidence.
1
McNally v. United States, 483 U.S. 350 (1987).
3. Whether the honest-services mail fraud counts

of conviction (Counts 4 and 8) should be remanded
without considering the sufficiency of the evidence
under the new Skilling standard because reversal for
instructional error is not a jeopardy-terminating event,
and, as a majority of circuits have ruled, where a
conviction is reversed because of an error in the jury
instructions resulting from an intervening decision, it
is inappropriate to assess the sufficiency of the
evidence under a standard that did not exist at the time
of trial.
4. Whether, if this Court reaches the issue of the

sufficiency of the evidence on the counts of conviction
under Skilling, the evidence was sufficient for a
properly instructed jury to find Bruno guilty of
honest-services mail fraud where Bruno received, at
the direction of Jared E. Abbruzzese, $280,000
disguised as “consulting” and “horse” payments; Bruno
provided no services for the “consulting” payments and
the horse was worthless; Bruno concealed the
payments by using a sham entity and by failing to
disclose his horse partnership with Abbruzzese; Bruno
took official action benefitting Abbruzzese’s interests;
and a close temporal connection between the
illegitimate payments and official actions taken by
Bruno support an inference that Bruno solicited and
accepted the payments understanding that they were
made in return for his performance of official actions
as opportunities arose.
5. Whether this Court should review the

sufficiency of the indictment, where any defect in the
indictment that may have been caused by Skilling will
be cured by a superseding indictment.
STATEMENT OF THE CASE
An indictment returned in the Northern District of

New York on January 28, 2009, charged Joseph L.
Bruno with eight counts of honest-services mail and
wire fraud, in violation of 18 U.S.C. §§ 1341, 1343 and
1346. JA36-70.2 Bruno moved to dismiss the
indictment on the ground that the honest-services
statute was “unconstitutional as applied to the facts of
this case as alleged.” JA72. In a written opinion,
JA262-78, the district court (Sharpe, J.) after receiving
briefing, JA7, and the government’s proposed jury
instructions, GA1-18, denied the motion. JA268.
Following a month-long trial, the jury found Bruno

guilty on Counts 4 and 8 and acquitted Bruno on
Counts 1, 2, and 5-7. JA291-94. The district court
declared a manifest-necessity mistrial on Count 3
because of the jury’s failure to reach a verdict.
GA175-76.
On May 6, 2010, the district court sentenced

Bruno to imprisonment for two years on each count to
2
Citations to the appendix filed by Bruno are in
the form “JA#.” The Government has filed an
appendix cited as “GA#.”
run concurrently. JA304. Bruno filed a timely notice

of appeal the next day. JA309.
STATEMENT OF FACTS
A. Overview
Bruno, the Temporary President and Majority

Leader of the New York State Senate (“the Senate
Majority Leader”) from 1995 through 2008, exercised
broad power in New York State. Legislation could not
be enacted without his approval, and the state budget
was the result of his negotiations with the Governor
and the Speaker of the Assembly, a process described
as “three men in a room.” GA19-20, 21-22. In
addition, Bruno personally controlled the vast majority
of hundreds of millions of dollars of funds allocated to
the Senate. GA98-104.
Between 1993 and 2006, Bruno solicited

substantial payments from individuals who had official
business before him. GA34, 122. Counts 4 and 8, the
counts of conviction, relate to $280,000 that Albany
businessman Jared E. Abbruzzese directed to Bruno
between 2004 and 2006.
During that time, Abbruzzese was seeking state

grant money from Bruno for Evident Technologies,
Inc. (“Evident”), a nanotechnology company. GA66,
120, 157-58, 296, 299, 300, 307, 308. Abbruzzese had
a financial interest in Evident’s success because of his
ownership interest in 15% of Evident’s stock. GA158.
Abbruzzese was also interested in thoroughbred

racing in New York State. The New York Racing
Association (“NYRA”) held the “extremely valuable”
thoroughbred racing franchise worth potentially
billions of dollars, GA72, 135, but it “was coming to an
end,” GA74. Bruno, as the Senate Majority Leader,
was expected to have “input into . . . the bids and the
procedures” in the award of the franchise. GA53-54.
Count 4 relates to $200,000 paid to Bruno in 2004

by two companies owned by Abbruzzese and his
business partner, Wayne Barr, Jr.: Communication
Technology Advisors LLC (“CTA”) and Capital &
Technology Advisors LLC (“C&TA”). JA59, 68. The
payments were disguised as monthly $20,000
“consulting” fees, but Bruno provided no legitimate
services to CTA and C&TA. GA62, 124.
Bruno did, however, take official actions

benefitting Abbruzzese’s interests. Just five days after
Bruno solicited Abbruzzese for these payments, Bruno
personally authorized the award of a $250,000 grant to
Evident. GA118-19. Evident rewarded Abbruzzese
for his role in obtaining this grant from Bruno by
giving him the option to purchase additional stock.
GA312-13, 318.
In addition, shortly after Bruno began receiving

these “consulting” payments, Bruno recommended that
Abbruzzese’s business partner be appointed to the
NYRA board. GA243. This appointment enhanced
Abbruzzese’s credibility in the thoroughbred racing

community.
Count 8 relates to $40,000 paid to Bruno by

Abbruzzese in November 2005. GA286, 287. The
payment was in connection with Abbruzzese’s
September 2005 promise to pay Bruno $80,000 for a
worthless horse. GA86, 87, 89-91, 149, 278, 279.
By the time that Abbruzzese paid Bruno the

$40,000 for the worthless horse, Bruno had personally
authorized a $2.5 million grant to a local college to
provide office space for Evident, GA108-09, 110-11,
331, and Evident had once again rewarded Abbruzzese
for his role in obtaining the grant by giving him the
option to purchase additional stock, GA327-28, 329.
In addition, Abbruzzese was “absolutely” planning to
join one of the bidders for the NYRA franchise,
GA150, and he later did, GA70. At this time,
Abbruzzese’s partner was still serving on NYRA’s
board as Bruno’s appointee. GA69.
B. In 2002 and 2003, Abbruzzese Is Trying

To Obtain State Grant Money For
Evident.
In 2002 and 2003, Evident was seeking grant

money from New York State, and Abbruzzese was
helping with that effort. GA120, 296, 299, 300, 307,
308. On September 13, 2002, Bruno announced at a
press conference that he would give Evident $1.5
million in state grant money in three annual $500,000
installments. GA159-61, 337-39. But the actual flow
of money was controlled by Bruno, and, despite the

press conference, Evident could not receive any money
until Bruno directed Senate staff to “activate” funds,
ordinarily by executing a Senate “Majority Initiative”
form. GA105-06, 107, 112-13. Bruno executed the
form on the same day as the press conference, but he
authorized only half of the announced amount
($250,000). GA297.
As a reward for Abbruzzese’s success in obtaining

the grant for Evident from Bruno, and as an incentive
to obtain the additional installments announced at the
press conference, Evident issued a warrant allowing
Abbruzzese (through one of his companies, Niskayuna
Development, LLC, 2989) to buy stock at a set price,
GA68, 298, 304-06. The Evident Board of Directors
approved the warrant on October 20, 2003. GA301-03,
304-06.
The warrant divided the potential stock purchase

into thirds, each linked to Evident’s receipt of funds
from Bruno. GA301-03, 304-06. The first third,
allowing Abbruzzese to buy one-third of the warrant
shares, had already vested because Evident had
received $250,000, but the remaining two-thirds would
not vest unless Bruno gave Evident additional grant
money. GA68, 301-03, 304-06, 312-19.
By mid-October 2003, Bruno had not given

Evident the promised second installment, so
Abbruzzese arranged a meeting with Senate staffers,
GA299, but Bruno did not give Evident money.
Abbruzzese tried again by scheduling a meeting with

Bruno himself for December 3, 2003. GA307, 308.
Evident’s CEO was so excited about the prospect of
obtaining additional grant money that he wrote in an
email, “I will be there with bells on!!!!!!!!!!!!!!!!”
GA307.
Bruno did not attend; instead he sent his highest

ranking staffer on fiscal issues, the Secretary to the
Senate Finance Committee (the “Finance Secretary”).
GA114, 115-16. Abbruzzese asked for $250,000, but
the Finance Secretary “could not give him an answer
whether or not that money would be forthcoming,”
GA116, and Abbruzzese, who thought that he was
wasting his time because Bruno was not there, GA77-
78, was “annoyed,” “not happy,” and “got up and
walked out,” GA116. After the December 3, 2003
meeting, Evident’s CEO called the Finance Secretary
“rather frequently” on “almost a weekly basis” asking
whether Bruno was going to give Evident another
grant. GA116, 117.
C. In February 2004, Bruno Solicits

Abbruzzese For Money And Then
“Moves” Money To Evident.
On February 5, 2004, Bruno flew from Albany to

West Palm Beach on Abbruzzese’s private plane for a
vacation arranged by Abbruzzese. GA343. On
February 7, 2004, while flying home on Abbruzzese’s
private plane, Bruno suggested that Abbruzzese could
hire him to do “consulting” work. GA121, 122, 343.
Bruno explained to Abbruzzese that New York State
10
legislators are allowed to have outside employment,

GA122, and when Abbruzzese told him that he had
“never heard of such a thing,” Bruno responded that
the Trial Lawyer’s Association paid the Speaker of the
Assembly approximately $40,000 to $60,000 each
month. Id. Abbruzzese told Bruno that he would
consider paying him. See id. (“we talked about him
possibly doing consulting work for me. . . . I said I’d
consider it.”).
A few days after the plane ride, Bruno called

Abbruzzese. GA123. When Abbruzzese asked Bruno
how much money he was seeking, Bruno told him
$30,000 a month. Id. Abbruzzese refused, suggested
$10,000, and the two “went back and forth,” eventually
agreeing that Abbruzzese would pay Bruno $20,000 a
month. Id.
On February 12, 2004, just five days after Bruno

first suggested that Abbruzzese should begin paying
him, Bruno, during a telephone conversation with the
Finance Secretary, instructed her to “move” $250,000
to Evident. GA118-19. Based on this instruction, the
Finance Secretary, who did not have independent
authority to execute the Senate Majority Initiative
form, GA107, signed the form.3 GA117, 309.
3
On July 30, 2004, the money was deposited in
Evident’s bank account, GA310, causing the second
portion of Abbruzzese’s warrant (entitling him to buy
one-third of the stock) to vest. Abbruzzese exercised
the warrant on August 25, 2004. GA311, 312-19.
11
Less than one week after Bruno “moved” the

$250,000 to Evident, Abbruzzese’s business partner
(Barr) and Bruno signed brief letter agreements dated
February 18, 2004 reflecting Abbruzzese’s promise to
pay Bruno $20,000 each month. GA220, 221. The
agreements were between “Joseph L. Bruno” and CTA
and “Joseph L. Bruno” and C&TA. Id.; GA56, 59.
Pursuant to these agreements, from March 2, 2004

through November 29, 2004, Bruno received twenty
$10,000 checks: ten from CTA and ten from C&TA.
GA223-42. Contrary to Barr’s practice of making the
checks payable to the individual on the agreement, the
checks were not made payable to Bruno, and Barr
could not explain why. GA61-62. The checks were
instead made payable to an entity never mentioned in
the agreements: Bruno’s “consulting” company
“Capital Business Consultants.” GA220, 221, 223-42.
That company performed no legitimate function, and
state employees, at Bruno’s direction, performed
administrative, clerical, bookkeeping, and legal work
related to all of Bruno’s outside financial activities.
GA39-44, 48-50. These checks relating to Count 4
were mailed to Bruno. GA61, 223-42.
Although the agreements required $20,000

monthly payments to Bruno, they did not require Bruno
to do anything. See GA220, 221 (Abbruzzese’s
companies were to “enjoy [Bruno’s] consulting
services with respect to appropriate matters which are
mutually agreeable”). In fact, Barr, who drafted the
letter agreements, had no particular expectations about
12
what Bruno would do in return for the payments.

GA57-58.
Given the “considerable amount of money” Bruno

would receive, the Deputy Counsel to the Senate
Majority, Francis J. Gluchowski, told Bruno that “there
would be an expectation that he would provide
services” and “exhorted [Bruno] to keep records of
what he did so that if it ever became an issue as to what
he did for the money, that there would be some record
to rely on.” GA92. Despite this advice, Bruno
produced no written work product, GA124, and neither
Barr, nor Bruno’s executive assistant, could identify
anything Bruno had done to earn the payments,4 GA45,
62. Abbruzzese did not identify any work product or
specific services provided by Bruno, GA124, instead
claiming that Bruno helped him become a “better
people person.” GA152.
The only document referring to any “services”

provided by Bruno is a December 9, 2004 termination
letter Barr wrote to Bruno relying on information from
Abbruzzese. GA60. In that letter, Barr thanked Bruno
for his “fine help with respect to various golf course
opportunities in Florida, general telecommunications
advice, and in particular, introduction to Lenny
Fassler.” GA222. But Abbruzzese did not have any
financial interest in any golf course development,
4
Bruno also ignored Gluchowski’s advice that he
not use Senate resources. GA39-44, 48-50, 93.
13
GA125-26, Bruno’s telecommunications advice was

“quite dated,” GA131-32, and Abbruzzese did not do
any business with Fassler (whose payments to Bruno
are related to the hung count), GA129-30. Abbruzzese
did, however, play golf with Bruno. GA133-34, 342.
D. Bruno N om inates A bbruzzese’s

Business Partner To The NYRA Board
And Invests In A Horse Partnership
With Abbruzzese.
Shortly after the “consulting” payments began, in

April 2004, Bruno recommended that Barr be
appointed to the NYRA Governing Board. GA243.
Barr was appointed on June 16, 2004. GA244.
Also in April 2004, Bruno, Abbruzzese, and

veterinarian Jerry Bilinski formed a partnership to
breed thoroughbred race horses. GA55, 272, 273. The
partnership began with four horses: two thoroughbred
brood mares (female horses used for breeding) and
their 2004 foals.5 GA272, 273.
5
Bruno purchased these horses in early April
2004 for $50,000. GA269. Abbruzzese paid $30,000
for his one-third interest, while Bilinski, through a
series of transactions, invested only $10,000 for the
same interest. GA270-71, 272, 273, 276. Barr,
through his farm, later gave Abbruzzese, through
Bazaguma LLC, $15,000 for a one-sixth interest in the
horses. GA73, 274-75.
14
E. Abbruzzese Promises To Pay Bruno
$80,000 For A One-Third Interest In A
Worthless Horse.
In December 2004, Abbruzzese decided to stop

paying Bruno through CTA and C&TA and, as
chairman of the board of directors of the publicly-
traded company Motient Corporation (“Motient”),
GA63, 75-76, directed that Motient take over the
payments, GA79, 136. Pursuant to a letter agreement,
GA250, which did not require Bruno to do anything,
GA249, Motient paid Bruno $120,000 ($20,000 per
month) between January and June 2005, GA262-67.
When the Motient agreement ended, Abbruzzese
directed that a Motient subsidiary, TerreStar Networks,
Inc. (“TerreStar”), take over the payments. GA64, 75-
76, 252. Pursuant to an August 12, 2005 agreement,
GA260, TerreStar paid Bruno $40,000 (two $20,000
payments purportedly for his “consulting” in July and
August, GA47) in a single August 18, 2005 check,6
GA268. Bruno produced no written work product,
GA136-37, and neither Barr, nor Motient or TerreStar
executives, nor even Bruno’s executive assistant could
identify anything Bruno had done in return for the
payments. GA 46-47, 64, 65, 80, 81, 82, 83, 84-85,
136-37, 140, 251, 253-58.
On August 26, 2005, TerreStar abruptly terminated

its agreement with Bruno four months early causing
6
The Motient and TerreStar payments relate to
acquitted counts (counts 5 and 6).
15
him to lose $80,000 of anticipated income. GA143-44,

261. The termination occurred after the CEO asked
Abbruzzese whether he needed to “keep” Bruno “on”
because he did not “really see what he [was] doing;”
Abbruzzese, “shouted back” that the CEO should
decide; and the CEO “decided to terminate him.”
GA141-42.
When Abbruzzese told Bruno about the

termination, Bruno said, “Ouch.” GA142. But
Abbruzzese “made good” on the agreement, GA151, by
agreeing to give Bruno $80,000 disguised as payment
for Bruno’s one-third interest in a worthless horse.
GA278, 279.
Abbruzzese’s promise is reflected in a September

1, 2005 bill of sale. GA279. Although the bill of sale
states that Abbruzzese was purchasing “100%” of the
horse, Abbruzzese already owned two-thirds of the
horse: one-third because the horse was one of the 2004
foals initially owned by the partnership, GA272, 273,
279, plus Bilinski’s one-third interest because two
weeks earlier (before the TerreStar agreement had been
terminated) Bilinski had agreed to transfer his interest
in this horse to Abbruzzese for $1, see GA277 (Bruno
responds, “OK,” to his executive assistant’s August 18,
2005 note that “Jerry B[ilinski] also wants me to send
Jerry A[bbruzzese] a bill of sale for $1 for the filly.”).
This horse, later named Christy’s Night Out,

GA147-48, was described as “the bottom of the barrel
in the world of thoroughbred horses,” GA86, “kind of
16
stunted,” “very, very tiny,” and without “good” action,

GA87-88, worth, in the spring of 2005, less than
$5,000, GA86. The horse was so obviously worthless
that Abbruzzese did not even insure her. GA283.
Even Abbruzzese admitted that the horse was not
worth $80,000, GA145-46, and that he “probably”
could have purchased her for less, GA154-55. A few
months later, Abbruzzese decided to give her away
and, after his trainer posted a sign at a Florida
convenience store, a little girl took her home for free.
GA89-91, 149.
By the time that Abbruzzese promised to pay

Bruno $80,000 for this worthless horse, Abbruzzese
was “absolutely” planning to bid for the NYRA
franchise. See GA150 (Abbruzzese was “absolutely”
“making plans or thinking about potentially playing in
[the thoroughbred racing franchise bidding]”).
Abbruzzese had positioned himself well for the
bidding. Barr was Bruno’s appointee to the NYRA
board from June 2004 through his resignation in 2006
when the NYRA franchise “was about to expire.”
GA69, 245-48. In addition, Abbruzzese through CTA
(one of the companies giving Bruno money for
“consulting” in 2004) was a founding member of
Friends of New York Racing (“FNYR”). GA70-71.
FNYR, incorporated on October 19, 2004, was a not-
for-profit corporation supporting the privatization of
the NYRA franchise.7 Id.; GA245-48, 340-41.
7
Abbruzzese and Bruno had played golf on
August 26, 2004, with the man who became the FNYR
17
F. Evident Credits Abbruzzese With
Obtaining A $2.5 Million State Grant
From Bruno Benefitting Evident, The
Final Third Of The Warrant Vests, And
Abbruzzese Pays Bruno $40,000 For
The Worthless Horse.
Although Bruno had billed Abbruzzese $80,000

for Christy’s Night Out on September 1, 2005,
Abbruzzese had still not paid as of October 28, 2005,
and Bruno directed that he be billed again. GA285.
Just a few day later, on November 2, 2005, the Evident
Board of Directors voted to authorize the final third of
Abbruzzese’s warrant to vest because of his assistance
in obtaining a $2.5 million grant from Bruno
benefitting Evident. GA327-28, 329. Bruno had
personally sponsored and signed off on this grant to
Russell Sage College for modification of a campus
building to provide office space for Evident and other
tenants. GA109, 110-11, 333, 334, 336. The grant was
the culmination of the Senate staff’s work to find new
office space for Evident. GA320-21, 322, 323-24, 325,
330, 331, 332.
leader and a NYRA board member who “became the

boss” of NYRA. GA133-34, 245-48, 342. Also, in
approximately May 2005, Abbruzzese hosted a private
meeting at his home for Bruno and the FNYR leader.
GA138-39, 245-48.
18
On November 17, 2005, just two weeks after the

Evident board meeting, Bruno received a check dated
November 7, 2005 for $40,000, one-half of the
promised $80,000 payment for Christy’s Night Out.
GA286, 287. The check was mailed, GA286, and
relates to Count 8.
G. Abbruzzese’s Remaining $40,000 Debt

For The Worthless Horse Is Forgiven
When He Terminates His Interest In The
Six Horses Still Owned By The
Partnership.
In an agreement backdated to March 1, 2006,

Abbruzzese terminated his one-third interest in the six
horses still owned by the partnership, GA95, 289-90,
two of which (the 2005 foals) yielded over $244,000
when sold in the fall of 2006, GA291-92, 293-94, 295.
The partnership also owed Abbruzzese $44,219 from
the July 2005 sale of a 2004 colt. GA51-52, 280-81,
282, 284, 288. Abbruzzese gave up his interest in the
six horses for nothing more than forgiveness of the
$40,000 debt he owed Bruno for the worthless horse
(which was less than what the partnership owed, but
never paid, Abbruzzese for the 2004 colt). GA51-52,
289-90.
H. Bruno Conceals The Payments He

Receives From Abbruzzese’s
Companies.
When Bruno first told Senate Majority Deputy

Counsel Gluchowski about the proposed payments
19
from Abbruzzese’s consulting companies, Gluchowski

asked whether Abbruzzese had any business before
New York State. GA93-94. Bruno was aware that
Abbruzzese was seeking money for Evident. See
GA308 (12/3/03 Bruno appointment calendar showing
Bruno to meet regarding Evident); GA296 (10/15/03
Bruno appointment calendar showing staff to meet with
Abbruzzese, Barr, and Evident CEO). He nevertheless
replied that he was not aware of any. GA93-94.
In addition, Bruno concealed and disguised the

source and true nature of the payments he received
from Abbruzzese on the annual statements of financial
disclosure that he was required to file by state law.
N.Y. PUB. OFF. LAW § 73–a (1989). Bruno’s 2004
annual statement of financial disclosure, covering the
period when he received $200,000 in “consulting”
payments, declared that he was employed by “Capital
Business Consultants” as a “consultant,” and paid
“consulting fees” for “consulting,” GA345-47, 348-49,
when, in reality, not only did he fail to provide any
legitimate services, but the “consulting” agreements,
which were with “Joseph L. Bruno,” made no reference
to his “consulting” entity, GA220, 221.
Bruno also did not disclose the horse partnership

on his 2004 annual statement of financial disclosure.
GA345. Just before the form was filed, Bruno’s staff
informed him that if the partnership were declared,
then “the names of the partners [would] have to be
shown.” GA335. Gluchowski wanted Bruno to be
“aware that he consider[ed] this a ‘grey’ area, [and]
20
also used the word ‘murky,’” id., because the

relationship might constitute a joint venture, GA96-97,
and the state form used the word, “partnership,”
GA345. Bruno had not told Gluchowski that he,
Abbruzzese, and Bilinski had intended to form a
partnership, and Gluchowski did not ask because “it
wouldn’t be [his] place.” GA96-97, 335. Bruno chose
not to disclose the horse partnership, and instructed his
staff to, “Leave as is.” GA335.
Bruno also did not disclose the horse partnership

or the $40,000 payment for Christy’s Night Out on his
2005 annual statement of financial disclosure. GA351,
352.
I. Bruno Is Paid More Than $400,000 By

Companies Controlled By Leonard
Fassler.
From 1993 through 2004, Bruno was paid more

than $400,000 by companies controlled by Leonard
Fassler. GA180-83, 199-203, 204, 205-19. The
payments were made pursuant to a series of
“consulting” agreements. GA177-79, 184, 185, 186,
187, 190. The hung count (Count 3) relates to checks
mailed to Bruno from Vytek Wireless, Inc. (“Vytek”)
in 2003 and 2004. GA36, 203, 204, 205-19.
According to Fassler, in return for more than

$400,000, Bruno made Fassler a better executive by
giving Fassler business advice and talking about his
vision during “meetings” over lunch and dinner.
GA34-35. Fassler also watched Bruno prepare for and
21
give speeches. GA30. Fassler received no written

work product, and could think of nothing specific that
Bruno had done to earn the payments. GA30-32.
While receiving the payments, Bruno took official

action benefitting Fassler’s companies. For example,
in August 2000, while Fassler’s company Interliant
was paying Bruno $4,000 per month, GA201, Fassler
asked Bruno for help in obtaining state funding for
Aviation Learning, Inc., a company in which Interliant
would be making a “modest” investment. GA188-89.
Bruno forwarded the letter to his staff. Id. On
February 13, 2003, Bruno and the Governor jointly
announced that Aviation Learning had been approved
to receive a $250,000 equity investment, GA195, but
the owner of Aviation Learning later turned down the
equity investment because he believed that the state
was too bureaucratic and controlling. GA156.
In April 2002, while Vytek was paying Bruno

$3,000 per month, at Fassler’s request, Bruno met with
a team, including Vytek, that was bidding on a $2
billion statewide wireless project. GA23-26, 191-94,
204. The contract was awarded to another bidder.
GA33.
On February 9, 2005, Bruno announced at a press

conference that the state common retirement fund was
investing $1.7 million in a company led by Fassler,
Convergence Technologies, Inc. GA27-28, 197-98.
Some time prior to the press conference, Fassler told
22
Bruno that he could not get any consulting fees from

this company, and Bruno agreed. GA29.
SUMMARY OF ARGUMENT
Although the jury instructions were proper under

the law at the time, they are erroneous under Skilling,
and the counts of conviction should be reversed and
remanded for retrial. The hung count should also be
remanded for retrial.
The Double Jeopardy Clause does not bar retrial.

The hung count may be retried, even if the evidence
was insufficient, because there is no jeopardy-
terminating event. A reversal for instructional error is
also not a jeopardy-terminating event, and retrial is
therefore not barred on the counts of conviction. In
addition, although this Court has, in some
circumstances, reviewed the sufficiency of the
evidence where a conviction has been reversed for trial
error, this Court should adopt the majority rule that,
where an instructional error results from a newly
anounced standard imposed by an intervening decision,
sufficiency review under the new standard is not
appropriate.
If this Court reaches the issue of whether the

evidence was sufficient under Skilling, the evidence
was sufficient for a properly instructed jury to convict
Bruno of both counts of honest-services mail fraud.
Viewing the evidence in its totality and in the light
most favorable to the government, a jury would be
23
entitled to infer a quid pro quo from the close temporal

relationship between Bruno’s solicitation and receipt of
payments from Abbruzzese, on the one hand, and
Bruno’s favorable treatment of Abbruzzese’s interests,
on the other hand. Evidence that the payments were
not legitimate and that Bruno was conscious of his
guilt would also support the jury’s inference of a quid
pro quo.
This Court need not reach the issue of the

sufficiency of the indictment because, to the extent
there is any legal deficiency in the indictment caused
by Skilling, that error will be cured by a superseding
indictment. The statute of limitations is no barrier
because it has been tolled by the indictment. In
addition, dismissal of the indictment would not benefit
Bruno because the statute of limitations would still be
tolled for six months by 18 U.S.C. § 3288.
ARGUMENT
POINT I: This Court Should Vacate The

Convictions On Counts 4 And 8
Because The Jury Instructions,
Although Proper When Given, Are
Erroneous Under Skilling.
A. Standard of Review
Although the government concedes plain error in

the jury instructions, see Addendum to Bruno’s Br. at
1-3, before accepting the concession, this Court must
independently examine those instructions to confirm
24
that there is plain error. United States v. Vasquez, 85

F.3d 59, 60 (2d Cir. 1996) (court may accept
government concession only after independent
consideration). In deciding whether jury instructions,
which were valid under the law prevailing at the time
of the trial, are erroneous in light of a newly announced
legal standard, this Court applies the law existing at the
time of the appeal. United States v. Needham, 604
F.3d 673, 678-79 (2d Cir. 2010); United States v.
Garcia, 992 F.2d 409, 414 (2d Cir. 1993).
The new legal standard announced in Skilling

requires proof of a quid pro quo consistent with bribery
and kickback law reflected in “federal statutes
proscribing – and defining – similar crimes.” Skilling,
130 S. Ct. at 2933 (citing, as examples, 18 U.S.C.
§ 201 (prohibiting corrupt acceptance of payments “in
return for being influenced”); 18 U.S.C. § 666
(prohibiting corrupt solicitation or acceptance of
payments “intending to be influenced”); 41 U.S.C.
§ 52(2) (prohibiting payments made “for the purpose of
improperly obtaining” favorable treatment)).
B. The District Court’s Jury Instructions
At the time this case was indicted and tried, this

Court had squarely addressed many issues involving
the scope of the honest-services statute. The district
court, relying on United States v. Rybicki, 354 F.3d
124, 145 (2d Cir. 2003) (en banc), correctly instructed
the jury that the elements of honest-services fraud are:
25
[1.] Mr. Bruno devised a scheme or artifice to

defraud;
[2.] Mr. Bruno’s intention or purpose was to

deprive others of their intangible right to his
honest services;
[3.] [t]he scheme involved a material

misrepresentation or omission; and
[4.] [i]n furtherance of the scheme . . . the

mails or interstate wires were used.
GA167-68; see also GA4.
The district court also instructed the jury that “the

indictment charges that Mr. Bruno committed honest
services fraud by failing to disclose material conflicts
of interest and related material information.” GA169;
see also GA6. This instruction was consistent with the
government’s “failure to disclose” theory upheld, for
example, in United States v. McDonough, 56 F.3d 381,
391 (2d Cir. 1995). In McDonough, this Court
affirmed a mail fraud conviction where “the
government’s primary theory appears to have been that
McDonough defrauded . . . citizens and officials by
means of nondisclosure and concealment of
information about the kickback scheme that he had a
duty to disclose.” Id. at 391; GA6.
The district court further instructed the jury that

“[a] conflict of interest exists whenever” the “interest
26
in the proper administration of an official’s office” and

“the official’s interest in his private economic affairs,”
including the official’s interest in “the receipt of salary,
bonuses, referral fees, consulting fees, commissions,
kickbacks on commissions, gifts, or any ongoing stream
of benefits,” “clash or appear to clash.” GA169-70
(emphasis added); see also GA6-8. The district court
also explained that “[w]hen a material conflict of
interest exists, a public official is obligated to disclose
the conflict of interest and to recuse himself,” and
“may not take discretionary action directly benefitting
the individual or organization behind that interest.”
GA170-71; see also GA12. This instruction was drawn
from United States v. Panarella, 277 F.3d 678, 697 (3d
Cir. 2002).
In Panarella, the Third Circuit rejected the

argument that an allegation of bribery was necessary,
instead requiring no more than a public official’s
acceptance of payments while taking discretionary
action benefitting the payor. Id. at 697. As the Third
Circuit explained:
[t]he only difference between a public official

who accepts a bribe and a public official who
receives payments while taking discretionary
action that benefits that payor, as [the public
official] did in this case, is the existence of a
quid pro quo whereby the public official and
the payor agree that the discretionary action
taken by the public official is in exchange for
payment. Recognizing the practical
27
difficulties in proving the existence of such a

quid pro quo, disclosure laws permit the
public to judge for itself whether an official
has acted on a conflict of interest . . . if a
public official fails to disclose a financial
interest in violation of state criminal law and
takes discretionary action that the official
knows will directly benefit that interest, then
that public official has committed honest
services fraud.
Panarella, 277 F.3d at 697.
The district court also instructed the jury that, in

determining intent, it could consider whether Bruno (1)
solicited payments from entities over which he
exercised decision-making discretion, GA 172; see
also GA15, (2) created entities to conceal the source of
the payments to him, GA173; see also GA17, (3)
performed legitimate work commensurate with
payments that he received, GA172; see also GA15, and
(4) violated a state statute prohibiting the acceptance of
a gift of more than $75 under circumstances in which
it could reasonably be inferred that it was “intended to
influence, or could reasonably be expected to influence
him, in the performance of his official duties . . . .”
GA173-74; see also GA 17-18.
C. Discussion
The issue of whether there was a quid pro quo

permeated the trial. The government offered
28
substantial evidence on this issue. See GA37 (district

court stating that the government had “incessantly
opened the door to suggestions that there was, in fact,
a quid pro quo. Having opened that barn door, we
have now heard 34 witnesses drive 67,000 cows
through that barn door that, in my view, you opened”);
GA165-66 (defense counsel arguing that AUSA stated
that the government “didn’t have to prove” a quid pro
quo, “[b]ut right away, he wanted to have it both
ways.”). As the district court observed at sentencing,
that evidence was relevant to the government’s failure
to disclose case. See JA302 (district court’s statement
that “evidence tending to show that there was some
influence on the decisions would be admissible as
relevant evidence even on the conflicts of interests
case, and it was for that reason that [the government]
sought to introduce that evidence.”). As explained
infra at III. C, that evidence was also sufficient for a
jury to find a quid pro quo.8
8
Some of the jury instructions highlighted factors
that would be relevant in determining whether there
was a quid pro quo, including whether (1) any
payments to Bruno were kickbacks on commissions,
GA170; see also GA8, (2) Bruno solicited payments
from entities over which he exercised decision-making
discretion, GA172; see also GA15, (3) Bruno created
any entities to conceal the source of the payments,
GA173; see also GA17, (4) Bruno took action
benefitting the payor, GA171; see also GA12, (5) the
payments were legitimate, GA172; see also GA15, and
(6) Bruno violated a state statute prohibiting gifts
29
Consistent with the law at the time, however, the

district court did not require the jury to find a quid pro
quo. As a result, plain error exists because the jury was
not instructed on the distinctions drawn by Skilling.
See United States v. Riley, 621 F.3d 312, 324 (3d Cir.
2010) (finding plain error “where the fraudulent act is
the non-disclosure of a conflict of interest,” and the
jury was not instructed on the distinctions drawn by
Skilling); cf. United States v. Garcia, 992 F.2d 409,
414-15 (2d Cir. 1993) (finding that “[t]he district
court’s failure to give an instruction on quid pro quo
was error” following the intervening decision in Evans
v. United States, 504 U.S. 255 (1992), because it failed
to convey that “[t]he jury was required to find that
[Congressman] understood that the payment was made
in return for performance of those [official] duties”).
POINT II: The Double Jeopardy Clause Does

Not Bar Retrial On The Hung Count,
Or The Counts Of Conviction, And
They Should Be Remanded For A
New Trial Without Considering The
Sufficiency Of The Evidence Under
The New Skilling Standard.
Relying on the Double Jeopardy Clause, Bruno

seeks a dismissal instead of a reversal by arguing that
this Court should review the sufficiency of the
evidence on the hung count (Count 3) and the counts of
conviction (Counts 4 and 8) under the new Skilling
intended to influence him, GA173-74.

30
standard.9 Bruno Br. at 43. His argument fails.

Neither a mistrial following a hung jury, nor a reversal
for instructional error is a jeopardy-terminating event.
Furthermore, retrial is permitted on a hung count
regardless of the sufficiency of the evidence. Finally,
where a conviction is reversed for instructional error
following an intervening change in the law, a majority
of circuits to address the issue have refused to assess
the sufficiency of the evidence under the new standard.
This Court should adopt the majority rule and decline
to review the sufficiency of the evidence on the counts
of conviction under the new Skilling standard.
A. The Double Jeopardy Clause Does Not

Bar Retrial Where A Mistrial Is Declared
Or Where Reversal Is Based On Error In
Jury Instructions.
It is well established that the Double Jeopardy

Clause does not prohibit the government from retrying
a defendant whose conviction has been reversed on
appeal because of an error in the trial proceedings; the
only exception to this rule is “when a defendant’s
conviction is reversed by an appellate court on the sole
ground that the evidence was insufficient to sustain the
jury’s verdict.” Lockhart v. Nelson, 488 U.S. 33, 39
(1988) (citing Burks v. United States, 437 U.S. 1, 18
(1978)); United States v. Draper, 553 F.3d 174, 183
(2d Cir. 2009)).
9
Bruno does not seek sufficiency review under
the pre-Skilling standard. Bruno Br. at 43.
31
The different treatment of a reversal for

insufficient evidence and a reversal for a trial error or
a mistrial reflects the principle that “the protection of
the Double Jeopardy Clause by its terms applies only
if there has been some event . . . which terminates the
original jeopardy.” Richardson v. United States, 468
U.S. 317, 325 (1984). “[A]n appellate court’s finding
of insufficient evidence to convict on appeal from a
judgment of conviction is . . . the equivalent of an
acquittal,” and is therefore a jeopardy-terminating
event. Id. On the other hand, neither a reversal for
trial error, nor a jury’s failure to reach a verdict, is a
jeopardy-terminating event. Price v. Georgia, 398 U.S.
323, 324, 326 (1970) (trial error); United States v.
Ustica, 847 F.2d 42, 48 (2d Cir. 1988) (hung jury). As
a result, in the absence of a jeopardy-terminating event,
the Double Jeopardy Clause does not bar retrial merely
because of insufficiency of proof at the first trial. See
Richardson, 468 U.S. at 326 (no double jeopardy claim
where first trial resulted in hung jury “[r]egardless of
the sufficiency of the evidence at [defendant’s] first
trial.”).
Based on these principles, the hung count should

be remanded for retrial without considering the
sufficiency of the evidence. See Ustica, 847 F.2d at 49
(retrial not barred where jury hung even though
evidence was found insufficient as to co-defendant
who had been convicted). As for the counts of
conviction, this Court’s reversal for instructional error
does not terminate jeopardy, and retrial is therefore not
32
barred. United States v. Jovino, 960 F.2d 1137, 1141

(2d Cir. 1992).
B. Although This Court, In Some

Circumstances, Entertains Claims That
There Was Insufficient Evidence Where
A Conviction Has Been Reversed For A
Trial Error, A Majority Of Circuits Hold
That Where An Instructional Error
Results From An Intervening Decision,
Sufficiency Review Should Not Be
Conducted Under The New Standard,
And This Court Should Adopt That Rule.
This Court has not addressed the issue of whether,

where a conviction is reversed for instructional error
resulting from an intervening decision, a sufficiency
review should be conducted under the newly
announced standard. This Court has, however,
addressed the sufficiency of the evidence following
reversal for other types of trial error. For example,
after reversing a conviction for error in the jury
instructions not caused by an intervening change in the
law, this Court decided to “address the issue of whether
the evidence was legally sufficient in order to
determine whether a retrial is permissible” under
“correct jury instructions.” United States v. Ford, 435
F.3d 204, 214 (2d Cir. 2006). In addition, where a
conviction was reversed based on a determination that
the government should have known that a witness had
testified falsely, this Court observed that “we prefer not
to subject the defendant to retrial without express
consideration of the sufficiency challenges that he
33
asserts were not disposed of on the prior appeal.”

United States v. Wallach, 979 F.2d 912, 913, 918 (2d
Cir. 1992); see also id. at 917 (“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 occur”) (citing United
States v. Bibbero, 749 F.2d 581, 586 (9th Cir. 1984)).
On the other hand, where a conviction was

reversed because evidence had been improperly
admitted, this Court refused to consider the sufficiency
of the evidence because “reversal entitles a defendant
only to an error-free trial and allows the prosecution an
opportunity in a retrial to substitute other evidence to
support a conviction.” United States v. Hardwick, 523
F.3d 94, 102 n. 7 (2d Cir. 2008) (citing Lockhart v.
Nelson 488 U.S. 33, 40-42 (1988)). One member of
the panel, Judge Winter, believed that “in the interest
of efficiency,” this Court should “inform the parties of
our views on the sufficiency issue absent” the
erroneously admitted evidence. Hardwick, 523 F.3d at
102.
A majority of the circuits to address the issue of

whether, where a conviction is reversed because of
instructional error created by an intervening change in
the law, the sufficiency of the evidence should be
considered under the new standard, have declined to do
so. United States v. Robison, 505 F.3d 1208, 1224-25
(11th Cir. 2007); United States v. Ellyson, 326 F.3d
522, 532-534 (4th Cir. 2003); United States v. Weems,
49 F.3d 528, 530-31 (9th Cir. 1995); cf. United States
34
v. Davis, 873 F.2d 900, 906-07 (6th Cir. 1989) (no

compelling need to decide whether evidence presented
under intangible rights theory would have been
sufficient to support conviction under money or
property theory). The majority rule is an exception to
the general practice of addressing the sufficiency of the
evidence when reversing because of a trial error.
Weems, 49 F.3d at 530 (acknowledging Bibbero, but
explaining rationale for exception).
The Tenth Circuit has acknowledged and indicated

general agreement with the majority standard. See
United States v. Wacker, 72 F.3d 1453, 1464-65 (10th
Cir. 1995) (permitting retrial on one count because
“the government . . . cannot be held responsible for
‘failing to muster’ evidence sufficient to satisfy a
standard which did not exist at the time of trial”)
(citing Weems, 49 F.3d at 530-31). Later panels have,
however, inconsistently stated that remand for retrial is
appropriate “only if the jury could have returned a
guilty verdict if properly instructed.” United States v.
Miller, 84 F.3d 1244, 1258 (10th Cir. 1996), overruled
on other grounds, United States v. Holland, 116 F.3d
1353 (10th Cir. 1997); accord United States v. Smith,
82 F.3d 1564, 1567 (10th Cir. 1996). The Tenth
Circuit has reconciled these positions by stating that
retrial is barred only when “the government produces
no evidence at trial,” but that other than in such cases
of “pure insufficiency,” “the government cannot be
held responsible for ‘failing to muster’ evidence
sufficient to satisfy a standard . . . which did not exist
35
at the time of trial.” United States v. Pearl, 324 F.3d

1210, 1214 (10th Cir. 2003) (emphasis in original).
The Seventh Circuit has quoted Miller for the

proposition that a new trial is appropriate if “a
properly instructed jury” could have found the
defendant guilty, but also permitted retrial where the
evidence was insufficient under the old standard, but
would have been sufficient under a theory the
government could have, but did not, charge, and on
which the jury was not instructed. United States v.
Gonzalez, 93 F.3d 311, 322-23 (7th Cir. 1996).
The majority approach – not reviewing sufficiency

under a newly announced standard – is grounded in
important policy considerations. A contrary rule would
encourage prosecutors to offer evidence not required
by controlling law and cause trials to become
unnecessarily long, complex, and confusing. See, e.g.,
Weems, 49 F.3d at 531 (refusing to review sufficiency
of evidence because the “district court . . . could have
required such proof only by disregarding clear rulings
by this court”). It would also produce unjust results
where prosecutors, relying on controlling law, failed to
introduce available proof that would have met the new
standard. See, e.g., Robison, 505 F.3d at 1224-25
(declining to review sufficiency of evidence where the
government is deprived “of an opportunity or incentive
to present evidence that might have supplied the
deficiency”) (quotation omitted).
36
Given these sound policy reasons, this Court

should adopt the majority rule. Applying that rule
here, the sufficiency of the evidence should not be
considered under the new Skilling standard because the
instructional error was caused by an intervening
change in the law. The case should be remanded for
retrial.
POINT III: The Evidence Was Sufficient To

Convict On Both Counts 4 And 8
Under The Skilling Standard.
If the Court decides to consider the sufficiency of

the evidence under the new Skilling standard, the
evidence was sufficient for the jury to convict Bruno
on Counts 4 and 8. The issue, as presented by Bruno
in his brief, is narrow: whether there was sufficient
evidence of a quid pro quo. Bruno Br. at 44-45.
A. Standard Of Review
This Court “view[s] the evidence in the light most

favorable to the government.” United States v. Ford,
435 F.3d 204, 206 (2d Cir. 2006). This process
requires “crediting every inference that the jury might
have drawn in favor of the government.” United States
v. Temple, 447 F.3d 130, 136-37 (2d Cir. 2006)
(quotation omitted). Although Bruno was acquitted on
some counts, “sufficiency of the evidence is reviewed
independently for each count, ignoring the jury’s
determination that evidence on another count was
insufficient.” United States v. Jespersen, 65 F.3d 993,
998 (2d Cir. 1995) (quotation omitted). Simply stated,
37
a jury’s acquittal of a defendant on one count “is

consequently irrelevant to our review of the sufficiency
of the evidence supporting a conviction” on another
count. Id.
B. Applicable Law
The definition of a quid pro quo is well established

in this Court’s case law. See United States v. Ganim,
510 F.3d 134, 141 (2d Cir. 2007) (identifying honest-
services mail fraud, Hobbs Act extortion, 18 U.S.C.
§1951, and federal programs bribery, 18 U.S.C.
§ 666(a)(1)(b) as statutes which “criminalize[ ], in
some respect, a quid pro quo agreement”). A quid pro
quo is a public official’s solicitation or acceptance of
a payment to which he is not entitled, in whole or in
part,10 in return or exchange for an official act “he has
performed, or promised to perform, in the exercise of
his official authority.” Ganim, 510 F.3d at 141; see
United States v. Myers, 692 F.2d 823, 841 (2d Cir.
1982) (interpreting “in return for” in 18 U.S.C. § 201).
It is not necessary for a payment to be linked to

any specific official act; payment in exchange for
performance of official acts “as the opportunities arise”
is sufficient. Ganim, 510 F.3d at 142. This standard
is satisfied “[i]f the public official knows that he or she
is expected as a result of the payment to exercise
particular kinds of influence or decision making to the
benefit of the payor, and, at the time the payment is
10
Ganim, 510 F.3d at 151.
38
accepted, intended to do so as specific opportunities

arose,” Ganim, 510 F.3d at 149 (quoting district court
instructions); United States v. Seminerio, No. S1:08-
CR-1238, 2010 WL 3341887, at *6 (S.D.N.Y. Aug. 20,
2010) (proof of explicit promise to perform specific
act unnecessary; “[r]ather ‘the public official [must]
understand[ ] that he or she is expected as a result of
the payment to exercise particular kinds of influence –
i.e., on behalf of the payor – as specific opportunities
arose”) (quoting United States v. Coyne, 4 F.3d 100,
114 (2d Cir. 1993)).
The illegal conduct in quid pro quo cases is taking

or agreeing to take something of value in return for
acting in a certain way. In other words, solicitation or
acceptance of the payment is the violation, not the
performance of the illegal promise. See Myers, 692
F.2d at 841 (a lack of intent to keep a promise is not a
defense to bribery because “‘[t]he language used [in
§ 201] . . . emphasizes that it is the purpose for which
the recipient knows the bribe is offered or given when
he solicits, receives, or agrees to receive it which is
determinative of criminality’”) (quoting House Comm.
on the Judiciary Report, H.R. Rep. No. 87-748, at 18
(1961)); see also United States v. Brewster, 408 U.S.
501, 526 (1972) (“[T]he Government need not show
any act of [the public official] subsequent to the
corrupt promise for payment, for it is taking the bribe,
not performance of the illicit compact, that is a criminal
act.”); Howard v. United States, 345 F.2d 126, 128 (1st
Cir. 1965) (“The gist of the crime [41 U.S.C. §§ 51-54]
therefore is receipt of a prohibited payment with
39
knowledge that it is made for the purpose of inducing

the award of a subcontract;” the crime is complete
when the kickback is accepted “regardless of whether
or not improper action is thereafter taken”).
A quid pro quo may be implied from

circumstantial evidence, United States v. Friedman,
854 F.2d 535, 553 (2d Cir. 1988), including “the
official’s words and actions because ‘otherwise the
law’s effect could be frustrated by knowing winks and
nods.’” Ganim, 510 F.3d at 143 (quoting Evans v.
United States, 504 U.S. 255, 274 (1992)) (additional
quotations omitted). “Indeed, evidence of a corrupt
agreement in bribery cases is usually circumstantial,
because bribes are seldom accompanied by written
contracts, receipts or public declarations of intentions.”
Friedman, 854 F.2d at 554. “This is especially true in
cases involving governmental officials or political
leaders, whose affairs tend more than most to be
subjected to public scrutiny.” Id.
As a result, the temporal relationship among

solicitations, payments, and official actions is of great
significance in determining whether a quid pro quo has
been proven. See United States v. Biaggi, 909 F.2d
662, 683-84 (2d Cir. 1990) (payment made “the day
after the governmental action on which the [public
official] had assisted”); United States v. Urciuoli, 613
F.3d 11, 14 (1st Cir. 2010) (hiring took place “shortly
after [the public official] had exerted legislative efforts
in [payor’s] favor”). In fact, this Court has
“recognized, especially with respect to public officials,
40
that evidence of the receipt of benefits followed by

favorable treatment may suffice to establish
circumstantially that the benefits were received for the
purpose of being influenced in the future performance
of official duties, thereby satisfying the quid pro quo
element of bribery.” Biaggi, 909 F.2d at 685 (citing
Friedman, 854 F.2d at 554). A jury can also infer
“guilt . . . from behavior indicating consciousness of
guilt.” Friedman, 854 F.2d at 554.
C. Discussion
Viewing the evidence in the light most favorable

to the government, a quid pro quo may be inferred from
the close temporal relationship between Bruno’s
solicitation and receipt of payments from Abbruzzese,
on the one hand, and Bruno’s favorable treatment of
Abbruzzese’s interests, on the other hand. Although
that evidence alone would be sufficient, Biaggi, 909
F.2d at 685, there was also evidence that the payments
were not legitimate and that Bruno was conscious of
his guilt. This evidence, considered in its totality, is
plainly sufficient for a jury to find a quid pro quo.
Focusing first on the “consulting” payments

charged in Count 4, the timing of the solicitation,
payments, and official actions provide ample evidence
of a quid pro quo. When Bruno first solicited
Abbruzzese for money, Abbruzzese had been trying,
unsuccessfully, to convince Bruno to follow through
on his promise of further grant money for Evident.
GA115-16, 120, 296, 299, 300, 307, 308. Just two
41
months before Bruno’s solicitation, Abbruzzese “got

up and walked out” of his December 2003 meeting
with the Finance Secretary “annoyed” and “not happy”
because she “could not give him” the money. GA115-
16. In fact, Abbruzzese thought that he was wasting
his time because Bruno was not there. GA77-78. In
addition, Evident’s CEO was calling “rather
frequently” on an “almost weekly basis,” GA116, but
Bruno had still not authorized additional grant money
for Evident, GA116, 117. A jury could infer that
Bruno knew this.
On February 7, 2004, while flying home on

Abbruzzese’s private plane from a Florida vacation,
Bruno solicited Abbruzzese for money by suggesting
that Abbruzzese could pay Bruno to do “consulting”
work. GA121, 122, 343. Although Abbruzzese
initially expressed some reluctance telling Bruno that
he had “never heard of such a thing,” he agreed to
consider it. GA122. A few days later, during a
telephone call, after Bruno’s initial suggestion of
$30,000 per month, the two agreed that Abbruzzese
would pay him $20,000 per month. GA123.
Abbruzzese quickly saw results. Just five days

after Bruno’s solicitation, Bruno instructed the Finance
Secretary to “move” the $250,000 Abbruzzese had
been seeking for Evident. GA118-19. The cursory
letter “consulting” agreements reflecting Abbruzzese’s
promise to pay Bruno $20,000 per month were dated
just six days after that. GA220, 221. By early April,
less than two months after the solicitation, Bruno had
42
arranged for the appointment of Abbruzzese’s business

partner, Barr, to the NYRA board. GA243-44. In
light of the anticipated expiration of the extremely
valuable New York thoroughbred racing franchise,
GA69, 72, 74, 135, 245-48, a jury could reasonably
infer that Barr’s appointment would give Abbruzzese
legitimacy in any effort to obtain the NYRA franchise
and first-hand information about its operation.
Meanwhile, at the end of April, Bruno obtained an

additional $30,000 from Abbruzzese in the form of an
investment in a horse partnership. GA273. A few
months later, on August 25, 2004, after Bruno had
received $100,000 from CTA and C&TA and while
Barr was serving on the NYRA board, Bruno played
golf with Abbruzzese and two others who were
influential in thoroughbred racing. GA133-34, 245-48,
342. One of the companies paying Bruno, CTA, was a
founding member of FNYR which was officially
incorporated on October 19, 2004. GA70-71, 340-41.
Around May 18, 2005, Abbruzzese hosted a private
meeting at his home for Bruno and the FNYR leader to
discuss issues related to racing. GA138-39, 245-48.
In late August 2005, the TerreStar agreement was

abruptly terminated, GA261, because the CEO realized
that Bruno was not doing anything, GA141-42. But
Abbruzzese decided to “make good” on the TerreStar
agreement, GA151, by agreeing to pay Bruno $80,000
for a one-third interest in a worthless horse, GA278,
279. By this time, Abbruzzese had “absolutely”
43
decided to become a bidder on the NYRA franchise.

GA150.
Around October 28, 2005, Bruno directed that

Abbruzzese be billed for the $80,000 owed for the
worthless horse. GA285. On November 2, 2005, the
Evident Board of Directors rewarded Abbruzzese for
his role in obtaining a $2.5 million grant benefitting
Evident that had been personally approved by Bruno,
GA109, 110-11, 326-28, 329, 333, 334, by voting to
vest the final third of Abbruzzese’s warrant. GA327-
28, GA329. On November 17, 2005, Bruno received,
by mail, a $40,000 check for the first half of the
promised $80,000 for the worthless horse (Count 8).
GA286, 287.
This evidence – that Bruno (1) solicited and

received payments while Abbruzzese was seeking
official action and (2) took official action benefitting
Abbruzzese’s interests after soliciting Abbruzzese and
receiving payments – is sufficient to support a finding
of a quid pro quo. See Biaggi, 909 F.2d at 684
(circumstantial evidence supporting existence of
corrupt payment in bribery case included fact that
payment “was discussed with a Congressman while
matters were pending on which the Congressman’s
assistance was urgently needed,” law firm bill was
“submitted just one week after the need for the
Congressman’s assistance became apparent” and was
“paid the day after the governmental action on which
the Congressman had assisted”); Friedman, 854 F.2d
at 554 (same where, after payments began, public
44
official’s “attitude toward [the payor’s] firm . . .

quickly turned from opposition to favoritism”); see
also United States v. Urciuoli, 613 F.3d 11, 14 (1st
Cir. 2010) (post-Skilling honest-services fraud case
concluding that a jury could find that the payor “hired
[the public official] shortly after [the public official]
had exerted legislative efforts in . . . favor [of payor’s
business interest] and that [the payor] renewed [the
public official’s] contract and increased his pay shortly
after [the public official’s] effort to, in [the payor’s]
words, ‘crank around’ – that is, to exert pressure on –
one of the insurance companies with whom [payor’s
business interest] was negotiating about
reimbursement.”).
There was also overwhelming evidence that

neither the “consulting” nor the “horse” payments,
were legitimate. Regarding the “consulting” payments,
the amount of payments, the absence of normal work
records, and Bruno’s failure to perform legitimate work
commensurate with the size of the payments all
demonstrate that the payments were not legitimate.
There is no question that the “consulting”

payments Bruno received were large, GA153, and
Bruno understood that “there would be an expectation
that he would provide services,” for this “considerable
amount of money.” GA92. Despite the fact that
Gluchowski “exhorted [Bruno] to keep records of what
he did so that if it ever became an issue as to what he
did for the money, that there would be some record to
rely on,” id., Bruno kept no such records, see Biaggi,
45
909 F.2d at 684 (bill not accompanied by normal time

records).
Viewing the evidence in the light most favorable

to the government, it is also clear that Bruno did not
perform legitimate work commensurate with the
payments. The only person who had any knowledge of
what, if anything, Bruno did in return for these
payments was Abbruzzese, GA45, 62, and a jury would
be free to reject his absurd contention that Bruno, in
return for $200,000 over ten months, helped
Abbruzzese become a better “people person.” GA152.
In addition, the few concrete examples Abbruzzese
provided – “quite dated” telecommunications advice,
GA131-32, an introduction to another person who also
was paying Bruno, GA127-31, and introductions to a
few golf course developers (when Abbruzzese had no
business interests in golf course development, GA125-
26) – fail to justify the amount of the payments. The
only document referring to any “services” provided by
Bruno – the December 9, 2004 termination letter –
relies on the same unsupported examples, GA222, and,
viewed in the light most favorable to the government,
was nothing more than an inside joke referring to
rounds of golf Bruno and Abbruzzese had played while
he was being paid.
The “horse” transaction was every bit as bogus.

After the abrupt termination of the TerreStar
agreement, Abbruzzese decided to “make good” on it
by agreeing to give Bruno $80,000. GA151. The gift
was disguised as a horse transaction. GA278, 279.
46
Even considering the somewhat subjective value of

thoroughbred horses, there was ample evidence that
this was not a legitimate transaction. The horse, which
was “kind of stunted,” “very, very tiny,” GA87-88, and
at “the bottom of the barrel in the world of
thoroughbred horses,” GA86, was worth less than
$5,000 in the spring of 2005, id. The horse’s utter lack
of value is demonstrated by Abbruzzese’s failure to
insure her, GA283, Bilinski’s transfer of his one-third
interest to Abbruzzese for $1, GA277, and the fact that
Abbruzzese eventually gave her away to a little girl.
GA89-90, 149. This evidence would certainly support
a jury’s conclusion that the transaction was not
legitimate.
Finally, the structure of the payments shows that

Bruno was disguising them to avoid reporting them.
The cursory agreements generating the payments
required CTA and C&TA to make payments to Bruno,
but required nothing from Bruno in return. GA220,
221. In addition, the payments were inexplicably made
to Bruno’s “consulting” entity, GA223-42, despite the
fact that the agreements themselves make no reference
to that entity, GA220, 221. A jury would be entitled to
infer that the business was a sham because the entity
performed no real function and Bruno used state
employees to perform necessary administrative,
clerical, bookkeeping, and legal work related to his
outside financial activities. GA39-44, 48-50. See
McDonough, 56 F.3d at 391 (evidence that the public
official organized a separate agency to receive
payments relevant to his intent to inflict financial harm;
47
“the very creation of the Collar City Agency sp[eaks]

. . . volumes about the fact that it was a coverup and an
attempt to hide what . . . [defendant] believed[ ] to be
an illegal venture”) (quoting district court). Bruno also
concealed the “horse” payments by deciding, in May
2005, not to disclose that he was in a partnership with
Abbruzzese, GA335, and by failing to disclose the
$40,000 he received in 2005 for the worthless horse,
GA351, 352.
When these categories of evidence – the timing of

the solicitations and payments in relation to official
action taken by Bruno; the size of the payments and
Bruno’s failure to perform legitimate work
commensurate with the payments or keep records of
any work performed; and his efforts to disguise the
payments – are considered in their totality, it is clear
that there was ample evidence from which a jury could
conclude that Bruno understood the “consulting”
payments were made in return for official action. See
Urciuoli, 613 F.3d at 14 (affirming a bribery
conviction where a state senator’s work “was modest
given his ample salary,” a rational jury could find that
“the compensation nominally for marketing was in
reality for [the state senator’s] misuse of his powers,”
and the fact that [the state senator] “performed some
marketing services did not prevent the jury from
regarding the payments as primarily intended by
[payor] to secure [state senator’s] legislative help”).
See also United States v. Triumph Capital Group, Inc.,
544 F.3d 149, 162 (2d Cir. 2008) (“In the final version
[of events], [the payor] agreed in substance to pay [the
48
public official’s] associates for work they did not

perform, which provided strong support for the jury’s
finding that [the payor] intended to influence an
official act and to defraud the people of the State of
Connecticut of their right to [the public official’s]
honest services.”); Biaggi, 909 F.2d at 683-84 (jury
entitled to find $50,000 payment to law firm unlawful
bribe where payment was discussed while matters
requiring Congressman’s assistance were pending, bill
was submitted soon after Congressman’s assistance
became necessary, bill was paid the day after
Congressman took action, bill was not accompanied by
normal law firm time records and, though perhaps
justified in part by legal services rendered, was in
addition to substantial retainer); cf. United States v.
Middlemiss, 217 F.3d 112, 118 (2d Cir. 2000)
(“Although [airport employee] also contends that he
received the corporate interest as a finder’s fee for
locating the cafeteria spot, the jury was entitled to
conclude that [airport employee] was not entitled to
any payment.”).
For all of these reasons, the evidence would amply

support a finding of a quid pro quo, and is therefore
sufficient to satisfy Skilling.
Point IV To The Extent That Skilling May

Have Caused Any Legal Deficiency
In The Indictment, It Will Be Cured
By A Superseding Indictment.
Bruno also challenges the sufficiency of the

indictment, but it is unnecessary for this Court to reach
49
that issue because the government intends to seek a

superseding indictment based on the same underlying
evidence and alleging the same statutory violations
without broadening the charges. Any concern about
the sufficiency of the original indictment will then be
moot. See United States v. Schaefer, No. S1:07-CR-
498, 2008 WL 2332369, at *3 (S.D.N.Y. Jun. 2, 2008)
(“Defendant’s concerns about the sufficiency of the
Indictment have been rendered moot by the filing of
the Superseding Indictment.”). This Court need not
address the issue because it will not arise again. See
United States v. GAF Corp., 928 F.2d 1253, 1263 (2d
Cir. 1991) (“The Court need not consider appellants’
numerous other contentions which will not likely arise
in exactly the same context in any new trial.”); see also
United States v. Prigmore, 243 F.3d 1, 17 (1st Cir.
2001) (“We do not reach the merits of any arguments
for vacatur beyond the one we regard as dispositive
because, in any retrial, the issues giving rise to these
other arguments are either not likely to arise again or
likely to arise in materially different contexts.”);
United States v. Ismail, 97 F.3d 50, 59 n. 3 (4th Cir.
1996) (refusing to address alternative argument that
structuring convictions should be reversed because
indictment did not allege requisite knowledge when
court had already decided to reverse convictions
because there was insufficient proof of knowledge).
The statute of limitations is no barrier because “the

statute stops running with the bringing of the first
indictment,” and “a superseding indictment” may be
returned “at any time while the first indictment is still
50
validly pending, if and only if it does not broaden the

charges made in the first indictment.” United States v.
Grady, 544 F.2d 598, 601-02 (2d Cir. 1976).
Dismissal of the indictment would not alter this result
because the statute of limitations would still be tolled
for six months by 18 U.S.C. § 3288. That tolling
provision applies whenever “‘an indictment is
dismissed for any error, defect, or irregularity with
respect to the grand jury.’” United States v. Macklin,
535 F.2d 191, 192 (2d Cir. 1976) (quoting 18 U.S.C.
§ 3288). It “is available to correct legal defects as well
as grand jury defects or irregularities.” United States
v. Italiano, 894 F.2d 1280, 1286 n. 10 (11th Cir. 1990).
In Italiano, the Eleventh Circuit reversed an

honest-services mail fraud conviction and dismissed
the “fatally flawed” indictment because of the
intervening McNally decision. Id. at 1281-82.
Defendant was convicted on a new indictment alleging
a deprivation-of-property theory, and he argued on
appeal that the statute of limitations barred the new
indictment because the change of theory had broadened
the charges. Id. at 1282. The court rejected his
argument where the indictments alleged “the same
statutory violation, the same mailing in furtherance of
the scheme, and the same underlying transaction for the
bribe,” and the new indictment “did not introduce any
material new facts not found in the original
indictment.” Id. at 1284-85; cf. United States v.
Salmonese, 352 F.3d 608, 622 (2d Cir. 2003) (factors
in determining whether superseding indictment
materially broadened or amended charges are whether
51
pleadings allege violation of different statute, contain

different elements, rely on different evidence, or
expose defendant to potentially greater sentence).
Bruno also mentions two inapposite legal

principles: judicial estoppel, Bruno Br. at 33-34, and
abandonment, Bruno Br. at 38-39 n. 7. His arguments
do not undermine this straight-forward analysis or have
any other merit.
The “‘obscure doctrine’” of judicial estoppel has

apparently “‘never been applied against the
government in a criminal proceeding,’” United States
v. McCaskey, 9 F.3d 368, 378 (5th Cir. 1993) (quoting
United States v. Kattar, 840 F.2d 118, 129-30 n.7 (1st
Cir. 1988), and for reasons of policy, never should be,
cf. Office of Pers. Mgmt. v. Richmond, 496 U.S. 414,
423 (1990) (noting that arguments for rule that
estoppel may never run against government “are
substantial,” but not reaching this issue). In addition,
it typically applies to inconsistent factual, not legal,
positions. Mulvaney Mech., Inc. v. Sheet Metal
Workers Int’l Ass’n, Local 38, 288 F.3d 491, 504 (2d
Cir. 2002), vacated on other grounds, 538 U.S. 918
(2003). Finally, it “does not apply on direct appeal.”
United States v. Quinones, 511 F.3d 289, 321 n.22 (2d
Cir. 2007); see Adler v. Pataki, 185 F.3d 35, 41 n.3 (2d
Cir. 1999) (“prior separate proceeding” required).
Moreover, none of the factors that “typically

inform the decision [of] whether to apply the doctrine”
– a “clearly inconsistent position,” that, if accepted,
52
would create “the perception that either the first or

second court was misled,” and give “an unfair
advantage or pose an unfair detriment” – are present
here. New Hampshire v. Maine, 532 U.S. 742, 750-51
(2001) (quotation omitted). There is no inconsistent,
let alone clearly inconsistent, position. The
government followed settled law in structuring the
indictment, see, e.g., Rybicki, 354 F.3d at 145;
Panarella, 277 F.3d at 697, and on retrial, the
government will follow the new legal standard
announced in Skilling,11 see United States v. Recio, 371
F.3d 1093, 1103 n. 8 (9th Cir. 2004) (“We address only
11
The government never stated that it could not
prove a quid pro quo, and statements about the
government’s burden of proof (that the government did
not have to prove a quid pro quo) were consistent with
the law existing at the time. See, e.g., JA288-89
(AUSA Pericak arguing during closing that “the
Government put on significant evidence that the
beneficial actions were taken. And I want to mention
something to you. We’re not talking about a quid pro
quo here. We’re not – we did not set out to prove, we
are not trying to prove, we don’t have to prove that in
return for a payment, Senator Bruno did a specific
thing. That’s not what the burden of proof is here.”) .
In addition, even under Skilling, the government would
not “have to prove that in return for a payment Senator
Bruno did a specific thing.” Id. Proof that Bruno
understood that he was expected to exercise influence
as opportunities arise would be sufficient. See supra
III.B. (citing Ganim, 510 F.3d at 142, 149).
53
briefly appellants’ argument that the government must

be held to its ‘chosen theory of the case,’ . . .
Appellants cite no precedent for their contention that
the government’s acceptance of binding precedent
works an estoppel on its ability to adapt its argument
on appeal, after intervening precedent changes the law.
This Circuit’s practice has been consistently to the
contrary.”) (citing Weems, 49 F.3d at 531). No court
has been, or will be, misled, and Bruno suffered no
unfair detriment to his defense.
Bruno also alludes to, but declines to raise, the

discredited “abandonment” theory. That theory
assumed that the Double Jeopardy Clause barred the
government, after an intervening change in the law,
from relying on a legal theory it could have, but did
not, advance before the change in the law. Not
surprisingly, given the absence of a jeopardy-
terminating event, the theory was short lived.
Although two district courts accepted this argument,
United States v. Gray, 705 F.Supp. 1224, 1233 (E.D.
Ky.1988); United States v. Slay, 717 F.Supp. 689, 696
(E.D. Mo. 1989), it was later specifically and
persuasively rejected as being inconsistent with
Richardson.12 United States v. Miller, 952 F.2d 866,
873 (5th Cir. 1992); see also United States v. Davis,
873 F.2d 900, 904-07(6th Cir. 1989).
Bruno also mistakenly assumes that any indictment

relying on a failure-to-disclose theory is necessarily
12
468 U.S. 317.
54
insufficient, Bruno Br. at 33, but he is wrong; no such

conclusion is appropriate without a more thorough
analysis of the underlying allegations.13 See United
States. v. Seminerio, No. S:08-CR-1238, 2010 WL
3341887, *7 (S.D.N.Y. Aug. 20, 2010) (“While these
passages – together with the Indictment excerpts
recited above – undoubtedly charged Seminerio with
intentionally concealing a conflict of interest, they at
the same time make clear that the concealed conflict
was Seminerio’s secret solicitation and receipt of
bribes. Thus, the Indictment survives Skilling and
Seminerio’s vagueness challenge fails.”) (emphasis in
original). See also United States v. Doherty, 867 F.2d
47, 55-57 (1st Cir. 1989) (indictment based on an
intangible-rights theory was still sufficient post-
13
The indictment alleged that Bruno (1) solicited
payments from people with business before him, JA43,
¶ 18, knowing and believing they would be motivated
to pay him based on his reasonably perceived ability to
influence official action, JA43, ¶ 19; (2) received
money, JA44, ¶ 21, for which he did not perform any
legitimate work, JA56-57, ¶¶ 43, 44; JA59-60, ¶ 52;
JA59, ¶ 51; (3) solicited these gifts under
circumstances in which it reasonably could be inferred
that they were intended to influence him in violation of
state law, JA39, ¶ 7; and (4) took official action
benefitting the payors, JA65, ¶ 59. The indictment
does not allege that Bruno violated state law, but, in
response to Bruno’s motion to dismiss, the government
represented that the evidence would establish a state
law violation. JA202.
55
McNally where the allegations – even an allegation

regarding “a minor matter” – gave notice that the
scheme involved at least some deprivation of property).
Bruno also appears to assume that any honest-

services fraud indictment must now include a quid pro
quo allegation, but no such allegation is required for a
Hobbs Act charge, which also has a quid pro quo
requirement. See United States v. Aliperti, 867 F.Supp.
142, 145 & n. 4 (E.D.N.Y. 1994) (indictment charging
Hobbs Act violation need not allege a quid pro quo).
The phrase “intangible right of honest services,” is a
legal term of art. See Skilling, 130 S.Ct. at 2928
(“First, we look to the doctrine developed in
pre-McNally cases in an endeavor to ascertain the
meaning of the phrase ‘the intangible right of honest
services.’”). And, like Hobbs Act extortion, the quid
pro quo requirement is embedded in that legal term of
art, Aliperti, 867 F.Supp. at 144-45 & nn. 3 & 4
(concluding that Evans v. United States, 504 U.S. 255
(1992), does not require a quid pro quo allegation in
indictment).
As the Supreme Court has observed in the context

of the obscenity statute, the definition of a legal term of
art is “not a question of fact, but one of law,” and
allegations about the “various component parts of the
constitutional definition” are not required in an
indictment. United States v. Hamling, 418 U.S. 87,
118, 119 (1974); see also United States v. Malone, No.
02:03-CR-00500, 2006 WL 2583293, at *2 (D. Nev.
Sept. 6, 2006) (observing, in a pre-Skilling honest-
56
services fraud case involving the payment of campaign

contributions, that a “quid pro quo is not a separate
element of the wire fraud offense, but makes up part of
the ‘scheme or artifice to defraud’”). Indeed, this
Court has “consistently upheld indictments that do
little more than track the language of the statute and
state the time and place (in approximate terms) of the
alleged crime.” United States v. Walsh, 194 F.3d 37,
44 (2d Cir. 1999) (quotation omitted).
In sum, this Court should not conduct the detailed

analysis necessary to assess the sufficiency of the
indictment because the government intends to seek the
return of a superseding indictment which will cure any
defect that may have been created by Skilling.
57
CONCLUSION
The judgment of conviction should be vacated and

the case remanded for retrial.
Dated: Albany, New York

March 24, 2011
Respectfully submitted,
United States Attorney for the
Northern District of New York
Attorney for Appellee
By: ___________________________
ELIZABETH C. COOMBE
WILLIAM C. PERICAK
BRENDA K. SANNES
Assistant United States Attorney
Of Counsel
CERTIFICATE OF COMPLIANCE
Pursuant to Rule 32(a)(7)(C) of the Federal Rules

of Appellate Procedure, the undersigned counsel for
Appellee hereby certifies that this brief complies with
the type-volume limitation of Rule 32(a)(7)(B). As
measured by the word processing system used to
prepare this brief, there are 12,676 words in this brief.
United States Attorney for the
Northern District of New York
By: _________________________
ELIZABETH C. COOMBE
WILLIAM C. PERICAK
BRENDA K. SANNES
Assistant United States Attorney
Of Counsel

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Case: 10-1885 Document: 50 Page: 1 03/24/2011 243847 71

10-1885 To be Argued by: E LIZABETH C. C OOMBE

United States Court of Appeals

UNITED STATES OF AMERICA

BRIEF FOR APPELLEE UNITED STATES OF AMERICA

STATEMENT OF THE ISSUES PRESENTED. . . . . . . 2

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . 4

B. In 2002 And 2003, Abbruzzese Is

C. In February 2004, Bruno Solicits

D. Bruno Nominates Abbruzzese’s Business

E. Abbruzzese Promises To Pay Bruno

F. Evident Credits Abbruzzese With

G. Abbruzzese’s Remaining $40,000 Debt

H. Bruno Conceals The Payments He

I. Bruno Is Paid More Than $400,000

B. The District Court’s Jury Instructions. . . 24

A. The Double Jeopardy Clause Does Not

B. Although This Court, In Some

Burks v. United States,

Evans v. United States,

Howard v. United States,

McNally v. United States,

Mulvaney Mechanic, Inc. v. Sheet Metal

Mulvaney Mechanic, Inc. v. Sheet Metal

New Hampshire v. Maine,

Office of Person Management v. Richmond,

Richardson v. United States,

Skilling v. United States,

United States v. Aliperti,

United States v. Biaggi,

United States v. Bibbero,

United States v. Brewster,

United States v. Coyne,

United States v. Davis,

United States v. Doherty,

United States v. Draper,

United States v. Ellyson,

United States v. Ford,

United States v. Friedman,

United States v. GAF Corp.,

United States v. Ganim,

United States v. Garcia,

United States v. Gonzalez,

United States v. Grady,

United States v. Gray,

United States v. Hamling,

United States v. Hardwick,

United States v. Holland,

United States v. Ismail,

United States v. Italiano,

United States v. Jespersen,

United States v. Jovino,

United States v. Kattar,

United States v. Macklin,

United States v. Malone,

United States v. Margiotta,

United States v. McCaskey,

United States v. McDonough,

United States v. Middlemiss,

United States v. Miller,

United States v. Miller,

United States v. Myers,