U.S, Department of Justice United States Attorney Northern District of New York 445 Broadway 51841-0247 Room 218 FAK: 518-431-0249 Albany, NY 12207 ‘October 26, 2010 William J. Dreyer, Esquire Dreyer Boyajian, LLP. 75 Columbia Street Albany, New York 12210 Re: United States v. Joseph L. Bruno, DH. No. 10-1885 (2d Cir.) ‘Dear Mr, Dreyer: Inresponse to yourrequest, Tam writing o advise youofthe government's positionregarding ‘ho effect of Skilling v, United States, 561 U.S. ~, 130 S.Ct, 2896 (2010), on your client's appeal from his convictions on two counts of honest services mail fraud in violation of 18 U.S.C. §§ 1341 & 1346, We have reviewed the applicable caselaw, particularly cases decided in the wake of other ‘Skilling-like ions (such as McNally v, United States, 483 U.S. 350 (1987), United States v. Gandin, 515 U.S. 506 (1995), Bailey v. United States, 516 U.S. 137 (1995), and Neder v. United States, 527 U.S, 1 (1999)), and conclude and state that: 1. The government concedes thatthe district court's instractions, although proper when given, did not comply with the requirements later announced in Skilling. 2, Although itis debatable whether Circuit review will be for harmless or plain ertor, ‘Compare United States v. Kaiser, 609 F.3d 556, 565 (2d Cir. 2010) (plain error review ‘where conscious avoidance instruction omitted defendant's actual belief exception; "{a)though the ‘words ‘actually believed! were used at one point by defense counsel, review of the entire colloquy supports the government's position thet the defense failed to raise the issue it now raises on appeal that (the] charge did not contain the ‘high probability’ or actually believed’ ianguage required"); United States v. Ganim, 510 ¥.34 134, 151 Qd Cir. 2007) (same where basis for jury instruction challenge on appeal different than trial objection ); United States v. Kuoll, 116 F.3d 94, 1000 (2d Cir, 1997) (same even where instructions, in accordance with controlling Second Circuit precedent, id not require jury to find materiality of false statement because defendant did not object before the district court) with Arthtir Andersen LLP v, United States, 544 U.S. 696, 707 n. 10 (2005) (harmless error review where instruction proposed to district court dic not mirror instruction proposed on appeal, but was nevertheless sufficient to preserve issue); see also Untied States v. Riley, 2010 WL 3584066, at “4 (3d Cir. 2010) (plain error review where "[allthough (éefendants) challenged the ‘honest services charge on various bases, they did not argue below that honest services fraud was void for vagueness or should be limited to bribes or kickbacks.").‘Wiliam J. Dreyer, Bsquire October 26, 2010 Page Two ‘orunder a modified plain error standard,” and whether the error prejudiced your client in light of the evidence presented at trial,’ we will not press these issues on appeal, end we will concede thet reversal is appropriate as a result ofthe instructional error. 3. We acknowledge the Second Circuits pradeatial rule, informed by double jeopardy considerations, under which the Court prefers to review for sufficiency of the evidence before ‘emanding for renal." Because the evidence at trial was sufficient to sustain a conviction under the *Sce United States v. Needham, 604 F.3d 673, 678 (2d Cir. 2010) (questioning continued vitality of Second Circuit's use of modified plain error analysis where ertor resulted from supervening decision), +See United States v. Seminerio, 2010 WL 3341887, at *7 (S.D.N.Y. 2010) (“While these passages — together with the Indictment excerpts recited above ~ undoubtedly charged Seminetio ‘with intentionally concealing a conilict of interest, they at the same time make clear that the concealed conilict was Seminerio’s secret solicitation and receipt of bribes. Thus, the Indictment survives Skilling and Seminerio's vagueness challenge fils."); see also United States v, Doherty, 867 F.2d 47, 39 (Ist Cir, 1989) (affirming pre-MsNally mail fraud conviction under new MeNally standard limiting prosecutions to deprivation of money or property where only theory in jury instructions was "erroneous intangible rights theory" because "[n}o rational jury could have found these five appellants guilty without inferring that they intended to defraud the state of salary peyments,"), United States y. Pecholtz, 842 F.2d 343, 367 (D.C, Cir, 1988) (same because "the factual predicate for the jury's verdict necessarily implies thet it found that [defendant] stole confidential information in violation of the mail fraud statute as interpreted in Carpenter [v. United States, 484 ULS. 19 (1987))"); of. United States v. Guevare, 298 F.3d 124, 127-28 (2d Cir. 2002) (Gffirming convietion under plain error standard where evidence of omitted element, although controverted and sufficient to permit jury to find in favor of defendant on that element, was overwhelming and jury nonetheless would have retumed guilty verdict). “gee United States v. Wallach, 979 F.2d 912, 918 (2d Cir, 1992) ("we prefer not to subject the defendant to retrial" without considering his sufficiency claim); see also United States v, Ford, 435 F.3d 204, 214 (2d Cir. 2006) ("Although our determination that the jury instructions were ertoncous requires thatthe conviction be vacated, we address the issue of whether the evidence was legally sufficient in order to determine whether a retrial is permissible."); United States v. Bobo, 419 P.3d 1264, 1268 (11th Cir. 2005) (Eleventh Circuit follows "prudential rule" requiring "review (of the] sufficiency ofthe evidence claims raised by defendants, evenifesolution on altemative grounds ‘would otherwise dispose of the case," but double jeopardy claims not considered in subsequent appeal where panel failedto follow rule during frst appeal); United States v, Miller, 952 F.2d 866, 874 (Sth Cit. 1992) (rejecting double jeopardy challenge to new indict:nent following McNally reversal because sufficiency of evidence not decided in first appeal; "Although not mandated by the double jeopardy clause, itis accordingly clearly the better practice for the appellate court on an initialWilliam J. Dreyer, Esquire October 26, 2010 Page Three Jaw atthe time, reflected in the instructions given, and under Skilling the Circuit's remand should indicate thatt is without prejudice fo the government seeking a superseding indictment and retrying ‘your client on proper jury instructions. Although we cannot act unilaterally, if you agzee with our assessment that the evidence presented at trial was sufficient to sustain a conviction of your client under the applicable standard, ‘then the case can be returned to the district court for prompt further proceedings.* trust that the foregoing sufficiently informs you of our position. ‘Very toy yours, Richard 8. Hartuniam United States Attomey appeal to dispose of any claim properly presented to it that the evidence at tial was legally insufficient to warrant the thus challenged conviction."), *Compare United States v. Robison, 505 F.3d 1208, 1224-25 (11th Cir. 2007) (remand for new tial appropriate where supervening Supreme Court decision rendered instruction erroneous, but evidence was sufficient under instructions given) with United States v. Miller, 84 F.3d 1244, 1258 (10th Cir. 1996) ("we will remand for anew trial only if the jury could have returned a guilty verdict if properly instructed” where supecvening Supreme Contt decision rendeted instruction erroneous) "Soe United States v. Palzer, 731 F.2d 1484, 1485 (11th Cir, 1984) (denying government's ‘motion to vaeste conviction and remand for new trial where goverment conceded that district court committed reversible error because motion "raises possible double jeopardy principles which would prohibit real.” and "this court should accept [appellant's] appeal and consider atleast his claim ‘that the evidence was insufficient to support a verdict of guilt).