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Honest Services Fraud Conviction Upheld Despite Error In Jury Instructions

On July 10, 2017, in United States v. Boyland, No. 15-3118 (Kearse, Walker, Hall), the Second Circuit affirmed the conviction of former New York State Assembly member William F. Boyland, Jr. on twenty-one counts of public corruption offenses, including eleven counts of honest services fraud.  Many of these counts involved determining that the benefits Boyland offered in exchange for bribes amounted to “official acts” under 18 U.S.C. § 201, the federal bribery statute prohibiting public officials from “being influenced in the performance of any official act.”  Id. § 201(b)(2)(A).  The U.S. Supreme Court recently narrowed the definition of this term in McDonnell v. United States, 136 S. Ct. 2355 (2016), which led the government to concede in Boyland’s appeal that the trial court’s jury instructions on the meaning of “official act” were in part erroneous.  The Second Circuit, however, determined on plain error review that the error did not affect Boyland’s “substantial rights” and thus affirmed his convictions.  This decision may prove problematic for other high-profile former elected officials whose appeals are currently pending before the Second Circuit.

Background

The charges against Boyland arose from his participation in two bribery schemes relating to (1) securing necessary permits and licenses for a local carnival and (2) a proposed real estate venture for which state grant money and other government approvals were required. 

With respect to the carnival scheme, Boyland promised a promoter that he would obtain the necessary government approvals for a carnival to be held in Boyland’s assembly district in Brooklyn.  Boyland assured the promoter that he would “have this thing locked up,” and signed multiple letters in support of the carnival that stated, inter alia, that Boyland “kn[e]w” the relevant local government agencies would “look favorably on this application and grant [their] approval.”  Boyland repeatedly accepted payments from the promoter in exchange for his assistance and influence. 

The real estate scheme involved a project to redevelop an abandoned hospital in Boyland’s district.  Again in exchange for financial contributions, Boyland agreed to assist the same carnival promoter and his business partner in obtaining state grants to cover the associated environmental remediation expenses, in securing zoning changes, and in soliciting government approval to demolish neighboring buildings.  Boyland repeatedly touted his ability to steer state grants and also stated that it would “[n]ot [be] a problem” to secure the necessary approvals.

In instructing the jury during Boyland’s trial, the U.S. District Court for the Eastern District of New York highlighted the relevance of Boyland’s elected position to the honest services fraud charges against him.  The court explained, “When a public official solicits, agrees to receive or receives a corrupt payment for or because of official action, the official has breached his duty of honest and faithful disinterested service.  The term ‘official act’ includes the decisions o[r] actions generally expected of a public official, including but not limited to contacting or lobbying other governmental agencies, and advocating for his constituents.”  Boyland was found guilty on all twenty-one counts charged in the indictment and was sentenced to 168 months’ imprisonment.

McDonnell Changes The Law of Honest Services Fraud

On appeal, Boyland relied on the Supreme Court’s decision in McDonnell  v. United States, 136 S. Ct. 2355—issued while Boyland’s appeal was pending.  In McDonnell, the Supreme Court reversed the political corruption conviction of former Virginia governor Bob McDonnell and, in so doing, narrowed the definition of an “official act” within the meaning of 18 U.S.C. § 201(a)(3).[1]  McDonnell holds that, in order to prove that a defendant performed an “official act” in exchange for a bribe, the government must (1) identify “a question, matter, cause, suit, proceeding or controversy” that involves “a formal exercise of governmental power, such as a lawsuit, hearing, or administrative determination” and (2) prove that “the public official made a decision or took an action ‘on’ that question, matter, cause, suit, proceeding, or controversy, or agreed to do so.”  McDonnell, 136 S. Ct. at 2368 (emphasis added).  The Supreme Court emphasized that “setting up a meeting, calling another public official, or hosting an event does not, standing alone, qualify as an ‘official act’”; however, where a public official agrees to “use[] his official position to provide advice to another official, knowing or intending that such advice will form the basis for an ‘official act’ by another official,” that conduct also violates § 201.  Id. at 2368, 2370.

The Circuit Affirms Applying A Plain Error Standard

Because Boyland had not objected to the jury instructions at trial, they were subject to plain error review pursuant to Fed. R. Crim. P. 52(b), which requires a finding that the trial court committed a “clear or obvious” error that affected the defendant’s “substantial rights”; in practice, substantial rights are affected only where there is “a reasonable probability that the error affected the outcome of the trial.”  United States v. Marcus, 560 U.S. 258, 262 (2010).  The government acknowledged that, in light of McDonnell, certain of the jury instructions were erroneous but argued that the error was not plain.  The Second Circuit agreed.[2]

The Second Circuit found error in the trial court’s instruction on Boyland’s honest services fraud charges that an “official act” includes “contacting or lobbying other governmental agencies”; McDonnell expressly holds that setting a meeting or agreeing to speak to other government officials, without more, is not sufficient.  The Second Circuit found further error—which the government did not concede—in the trial court’s jury instructions with respect to extortion charges under the Hobbs Act, 18 U.S.C. § 1951(a), which directed the jury to convict Boyland if it found that “Boyland knew that any money he accepted ‘was offered in exchange for a specific exercise of [Boyland’s] official powers.’”  The Second Circuit concluded that while this instruction did not expressly reference the definition of “official act” under 18 U.S.C. § 201(a)(3), it failed to “sufficiently inform the jury as to the nature of the power that the government was required to prove the defendant exercised or promised to exercise.”  The Second Circuit did not find error with respect to the remaining jury instructions, including those related to charges of bribery and bribery conspiracy in violation of 18 U.S.C. § 666, as those charges did not depend on the definition of “official act.”

Despite finding error in the jury instructions with respect to many of the counts against Boyland, the Second Circuit avoided reversal by concluding that the error did not affect Boyland’s “substantial rights.”  While the instructions incorrectly conveyed to the jury that simply contacting another government agency constituted an “official act” sufficient for conviction, the Second Circuit determined that both the carnival and real estate schemes in which Boyland participated were matters that “require[d] the formal exercise of governmental power”—including the issuance of licenses and permits, the approval of grant applications, and the award of demolition contracts. 

With respect to both schemes, Boyland promised his co-conspirators that he would personally ensure that all of the necessary governmental approvals were procured.  Regarding the carnival permits, Boyland assured his co-conspirators that he had the relevant permit granting agency “locked up” and he subsequently exerted pressure on New York City’s Department of Consumer Affairs to approve the application.  As to the real estate scheme, he assured his co-conspirators that he would assist them in obtaining state grant money for renovations, would have zoning changes implemented, and would ensure that demolition contracts were awarded—all while repeatedly asking his co-conspirators for money to support his various public and personal projects. 

Because both of these schemes involved “concrete matters” that could succeed only by obtaining formal administrative decisions—decisions that Boyland agreed and took action to secure—the Court saw no reasonable possibility that the trial court’s failure to instruct the jury that the assurance of formal government action was required in order to convict could have affected the outcome of the case.

Analysis

Boyland represents the first opportunity that the Second Circuit has had to interpret McDonnell in a published decision[3] and it will bear on future decisions in the high-profile appeals of other New York politicians convicted on bribery and conspiracy charges before the Supreme Court decided McDonnell, including former Senate Majority Leader Dean Skelos and former Assembly Speaker Sheldon Silver—both of whose appeals are pending before the Second Circuit.  We can expect to see, in the aftermath of McDonnell, further decisions delineating the line that separates official acts from other, innocent acts taken by elected officials.

Boyland offered Skelos and Silver a possible lifeline in that it showed the Court’s willingness to find error where the instructions fall short of what McDonnell requires.  At the same time, Boyland represents an emphatic statement by the Second Circuit that a conviction will not be reversed where the evidence of guilt is overwhelming and a revised jury instruction would not have affected the outcome of the trial.  The prosecution-friendly plain error standard of review authorizes this outcome-driven approach and likely insulates the Second Circuit’s decision here from further review, although given the Supreme Court’s decades-old disdain for honest services fraud prosecutions,[4] anything is possible.  It is also worth noting that Skelos and Silver, unlike Boyland, objected to the jury instructions at trial, which means that neither  defendant will be required to make a plain error showing; the more lenient harmless error standard will apply. 

 

[1] Boyland was charged with honest services fraud and related conspiracy in violation of 18 U.S.C. §§ 1343, 1346, and 1349.  While these sections do not expressly require an “official act,” after the Supreme Court’s decision in Skilling v. United States, 561 U.S. 358 (2010), which limited the reach of the honest services fraud statute to cases involving bribery and kickbacks, the definition of that term has been effectively incorporated into the law of honest services fraud.  Skilling held that the statute’s “prohibition on bribes and kickbacks draws content . . . from federal statutes proscribing—and defining—similar crimes.  See, e.g., 18 U. S. C. []§201(b)[.]”  Id. at 412.

[2] Boyland also challenged several evidentiary rulings by the trial court, which the Second Circuit summarily dismissed.

[3]  In an unpublished summary order in United States v. Stevenson, No. 14-1862-cr, the Court addressed a McDonnell claim, but found no possible error:  the official act in question was proposing legislation, which unquestionably is an official act under McDonnell.  The Court also rejected an effort to hold an appeal in abeyance pending the decision in McDonnell in United States v. Halloran, No. 15-996-cr, given that the defendant in that case did not have a colorable “official act” argument.

[4]  McNally v. United States, 483 U.S. 350 (1987), rejected the existence of honest services fraud, which led Congress to enact Section 1346, in order to restore the availability of these prosecutions.  In Skilling, 561 U.S. 358, decided in 2010, the Supreme Court limited the reach of this type of prosecution to bribery and kickback schemes; then in 2016, McDonnell, 136 S. Ct. 2355, further limited the statute’s reach.