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10-3891
United States Court of Appeals
for the Second Circuit
United States of America, Appellee, v. James Botti, Defendant - Appellant.
On Appeal from the United States District Court for the District of Connecticut

In the

REPLY BRIEF FOR APPELLANT JAMES BOTTI

GEORGE W. GANIM, JR THE GANIM LAW FIRM P.C. 4666 MAIN STREET BRIDGEPORT, CT 06606 (203) 372-7772 Counsel for the Appellant

Becker Gallagher Cincinnati, OH Washington, D.C. 800.890.5001

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TABLE OF CONTENTS TABLE OF CONTENTS ........................................................................................... i TABLE OF AUTHORITIES ................................................................................... iii 1. ARGUMENT ...................................................................................................1 I. THE CHARGE TO THE JURY WAS ERRONEOUS AS A MATTER OF LAW AND GOES TO THE HEART OF WHETHER THE DEFENDANT WAS GUILTY OF HONEST SERVICES MAIL FRAUD. THIS WAS NOT HARMLESS ERROR. .................................................................................................1 A. B. The Erroneous Language in the Charge to the Jury ...................4 The Governments Theory to Convict the Defendant of Honest Services Mail Fraud Rested in Part on NonBribery Type Acts .......................................................................5 The Non-Bribery Evidence Was Not Offered to Support a Traditional Mail Fraud Theory..............................................10

C.

II.

THE GOVERNMENT'S CLAIM THAT IT'S HONEST SERVICES MAIL FRAUD THEORY WAS LIMITED TO A BRIBE THEORY IS INCONSISTENT WITH ITS PROPOSED REQUESTS TO CHARGE THE JURY .......................11 THE VERDICT FORM AND THE JURY'S FAILURE TO REACH A VERDICT ON THE BRIBERY COUNTS CONSTITUTES ONE MORE FACTOR FOR THIS COURT TO CONSIDER IN DECIDING TO GRANT THE DEFENDANT A NEW TRIAL. .........................................................16 THE EXAMPLE USED BY THE GOVERNMENT IN ITS BRIEF TO ILLUSTRATE ITS CLAIM THAT THE JURY COULD HAVE FOUND THE DEFENDANT GUILTY OF A BRIBERY SCHEME WITHOUT FINDING THAT THE DEFENDANT COMMITTED BRIBERY, EITHER IGNORES OR MISCONSTRUES THE ELEMENTS OF 18 U.S.C. 666 .........18 i

III.

IV.

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2.

CONCLUSION..............................................................................................22

CERTIFICATE OF COMPLIANCE .......................................................................23 CERTIFICATION OF SERVICE............................................................................24

ii

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TABLE OF AUTHORITIES Cases Chapman v. California, 386 U.S. 1824 (1967) ...................................................................................... 3 United States v. Bahel, No. 083327, __ F.3d __, 2011 WL 5067095 (2d Cir. Oct. 26, 2011) ......... 13 United States v. Black, 130 S. Ct 2963 (2010)...................................................................................... 3 United States v. Bruno, 661 F.3d 733 (2d Cir. Nov. 16, 2011) ......................................................... 1, 2 United States v. Langsford, 647 F.3d 1309 (11th Cir. 2011) ..................................................................... 13 United States v. Riley, 621 F.3d 312 (3d Cir.2010) ............................................................................. 1 United States v. Skilling, 130 S.Ct. 2896 (2010).............................................................................passim United States v. Wilkes, No. 0850063, __ F.3d __, 2011 WL 4953070 (9th Cir. Oct. 19, 2011) ...... 13 Yates v. United States, 354 U.S. 298 (1957)......................................................................................... 3 Yeager v. United States, 129 S. Ct 2360 (2009).................................................................................... 16 Statutes 18 U.S.C. 371 ........................................................................................................... 6 18 U.S.C. 666 ..................................................................................................passim (a)(2) .............................................................................................................. 21 iii

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1.

ARGUMENT I. THE CHARGE TO THE JURY WAS ERRONEOUS AS A MATTER OF LAW AND GOES TO THE HEART OF WHETHER THE DEFENDANT WAS GUILTY OF HONEST SERVICES MAIL FRAUD. THIS WAS NOT HARMLESS ERROR.

The Court failed to charge the jury on the most important element of Honest Services Mail Fraud as limited in application by United States v. Skilling, 130 S.Ct. 2896 (2010). That is, it failed to instruct the jury that in order for a defendant to be guilty of Honest Services Mail Fraud, it is required to be by way of a bribery or kickback scheme.1 The Skilling decision was most recently applied by a panel of this Circuit in the case of United States v. Bruno, 661 F.3d 733 (2d Cir. Nov. 16, 2011).2 In that decision, the Court stated: "... the district court did not require the jury to find that Bruno accepted bribes or kickbacks to be convicted of honest services fraud. In light of Skilling, this failure to limit honest services fraud to bribes and kickbacks was error. 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 ). Accordingly, we vacate Bruno's conviction on Counts Four and Eight. United States v. Bruno, 661 F.3d at 740.

Since there is no claim by the Government that kickbacks are at issue in this case, the Defendant will only refer to bribery and bribery schemes throughout this reply brief.
2

The panel was comprised of Justices B.D. PARKER and CHIN, Circuit Judges, and KORMAN, District Court Judge, sitting by designation. 1

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As in the Botti case before this Court, the jury charge in Bruno did not require the jury to find that the defendant provided a bribe to a public official in order for him to be convicted of Honest Services Mail Fraud. The charge in Botti essentially instructed the jury that bribery" was but one of several ways in which an individual could commit honest services mail fraud. The Court used the words: "So, for instance..." when referring to bribery. This instructed the jury that bribery was only one of the ways the Defendant could commit Honest Services Mail Fraud. 3 It was decided in Skilling, and now by this Circuits own decision in Bruno, that in order to be a legally correct charge, the charging language must require the jury to find that the Defendant participated in a Honest Services Mail Fraud by way of bribery. The jury charge in the Botti case certainly did not. Instead, the

As it was noted in the Defendant's Opening Brief, the exact language of this section of the Charge stated: So, for instance, a public official who accepts a bribe or corrupt payment breaches the duty of honest, faithful and disinterested service, while outwardly appearing to be exercising independence in his or her official work, the public official instead has been paid privately for his or her public conduct. Thus, the public is not receiving the public officials honest and faithful service to which it is entitled." DB 22 GA 514, 896 This is the only time the word bribe" is mentioned in the Court's honest services mail fraud charge to the jury. As was also noted in the Defendant's Opening Brief, this language does not even properly instruct the jury as to any act or actions by the Defendant in this case because it only contains language referring to a public official who accepts a bribe". The Defendant is not a "public official". 2

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jury charge in Botti, included several other ways in which the Defendant could have committed Honest Service Mail Fraud and as a result, the verdict may rest on a legally invalid theory resulting in Constitutional error. 4 Because the indictment alleged three objects of the conspiracy honest services wire fraud, money-or-property wire fraud and securities fraudSkillings conviction is flawed. See Yates v. United States 354 U.S. 298 (1957) (Constitutional error occurs when a jury is instructed on alternative theories of guilt and return a general verdict that may rest on a legally invalid theory.) U.S v Skilling at p. 2934 . This Court must look closely at the specific language given by the trial Court in its charge to the jury. It must then determine if the verdict could have been

predicated on a non-bribery theory of law that is no longer valid. If the verdict could have been predicated on a non-bribery theory of Honest Services Mail Fraud that is no long valid, then the conviction cannot stand. Because the error is of Constitutional dimension, this court must vacate the verdict and order a new trial, unless the government can demonstrate beyond a reasonable doubt that the error did not contribute to the verdict." Chapman v. California, 386 U.S. 1824 (1967). Skilling 130 S Ct at 2934 35; United States v. Black, 130 S. Ct. 2963, 2969 70 (2010). Here, the Government will be unable to meet that burden. The error in the charge cannot be viewed as harmless when the language at issue goes to the very heart of what must be proven to convict a person of Honest Services Mail Fraud.

The other ways the Defendant could have committed Honest Services Mail Fraud are by materially false or fraudulent pretenses, representations and/or trick, deceit and deception. 3

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In this case it did.

The language of the charge, coupled with the evidence and the

arguments presented by the Government may have resulted in the Defendant being convicted on a non-bribery theory of Honest Services Mail Fraud that has been deemed to be unconstitutional warranting a new trial. A. The Erroneous Language in the Charge to the Jury

The Courts charge to the jury with respect to Honest Service Mail Fraud contained multiple errors thereby allowing the jury to convict the Defendant, Botti without finding him guilty of it by way of a bribery scheme. The trial court defined Honest Services Mail Fraud as a scheme to defraud by means of materially false or fraudulent pretenses, representations, and promises reasonably calculated to deceive persons of average prudence without requiring the jury to find the necessary element of "bribery". The Courts charge, in part, stated: "A scheme to defraud is any plan in place or course of action to obtain money or property or the intangible right of honest services by means of materially false or fraudulent pretenses, representations, and promises reasonably calculated to deceive persons of average prudence." DA 187 GA 891. 5 The Court further charged that "a scheme to defraud is a plan to deprive another of the intangible right of honest services by trick, deceit, deception or swindle."

This section of the Jury Charge is contained in its entirety at GA 889-902. Only excerpts from it have been quoted in the body of this Reply Brief. 4

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Thus, a scheme to defraud is a plan to deprive another of money or property or of the intangible right to honest services by trick, deceit, deception, or swindle. The government has alleged in the indictment that the scheme to defraud was carried out by making materially false or fraudulent pretenses, representations, and promises." GA 892 *** "In addition, [to] proving the statement was false or fraudulent and related to material fact, [i]n order to establish a scheme to defraud, the government must prove that the alleged scheme contemplated depriving another of money or property or of the intangible right of honest services." GA 894 That language falls short of requiring the jury to find that the Defendant committed Honest Services Mail Fraud by way of bribery and is exactly the type of conduct that no longer serves as a valid legal basis for a Honest Services Mail Fraud conviction post-Skilling. B. The Governments Theory to Convict the Defendant of Honest Services Mail Fraud Rested in Part on Non-Bribery Type Acts

The Government argues that they offered only one theory in support of the honest services mail fraud count--a bribe theory. GB 23. Contrary to that

statement, a review of the trial court record through the Appendixes provided by the parties to this Court supports the Defendant, Bottis contention that the Government offered multiple non-bribery theories to the jury (GA 252-261, 726, 729-230, 734-735).

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The Government began by presenting its non-bribery theory to the jury in its Opening Statement. It continued with that theory in its opposition to a Motion in Limine and carried it right through to its Closing Argument to the jury. The Government did this by repeatedly claiming that the Defendant was guilty of manipulating the process with fraudulent misrepresentation and deceit in not disclosing material facts to the Planning and Zoning Commission. DA 137 In fact, a closer look at the record reveals that the Government even pursued separate and distinct theories for each of the different counts of the indictment. In the First Count, Conspiracy to Defraud (in violation of 18 U.S.C. 371) and the Second Count, Bribery of a Public Official (in violation of 18 U.S.C. 666), the Government alleged and pursued the theory that the Defendant bribed Public Official No. 1, the Mayor of Shelton. In those counts, the Government presented evidence from various witnesses and made very clear allegation accusing the Defendant of committing bribery. It should be noted that despite those allegations and evidence, the Government failed to prove to that the Defendant did in fact bribe the Mayor. The jury was unable to reach a verdict on either of these two counts and they ended in mistrials. When discussing the acts of alleged bribery as they pertain to the First and Second Counts of the indictment, in its Opening Statement the Government stated: The conspiracy, (referring to the first count) ladies and gentlemen is the secret agreement between Mark Lauretti and James Botti. Look to 6

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see what efforts James Botti took to conceal their relationship from the public. The next count of the indictment is the June 2006 bribery count. That concerns the 828 Project. What you're looking for here ladies and gentlemen is evidence of a bribe to Lauretti. If you recall that James Botti mentioned to his friend that he bribed Mark Lauretti, listen to the evidence. Its all about buying votes, getting the necessary approvals and it's all being done by the backdoor. Again, ladies and gentlemen, you're going to see things that the people of Shelton never saw. You're going to see how the process was corrupted." (Emphasis added) DA 136. Those statements specifically referred to the conspiracy to defraud and bribery charges contained in Counts One and Two and were in strong contrast to statements made by the Government with regard to the Honest Services Mail Fraud charge contained in Count Three. In Count Three, the Government alleged and put forth evidence regarding a different theory of culpability. It presented and argued non-bribery conduct as the basis for prosecuting the Defendant on the Honest Services Mail Fraud charge.6 The non-bribery conduct consisted of numerous allegations of

"misrepresent[ation]" and "manipulation" by the Defendant in sending individuals to lie and testify falsely when appearing before the planning and zoning commission in support of his project. It was the Governments theory that the

The Government also puts forth evidence and arguments as to the Defendant providing rewards and or benefits to members of the Planning and Zonings Commission at various times. Those were also non-bribery scheme acts or actions that did not contain the requisite Quid Pro Quo and do not survive the Supreme Courts post Skilling definition of honest services mail fraud. 7

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Defendant committed Honest Services Mail Fraud by way of materially false or fraudulent pretenses, representations and/or trick, deceit and deception. The Government made it very clear throughout the trial that it was predominantly relying on non-bribery acts as a basis for a conviction of Honest Services Mail Fraud. A review of the Governments reference to misrepresentations and deceit in its Opening Statement supports the Defendants position. It's remarks, in part, consisted of: "The last count of the indictment, the Third Count is called a mail fraud count Ladies and gentlemen this count is about manipulating the process. Did James Botti manipulate the planning and zoning commission hearing to get approved? It's about misrepresenting the truth. Did James Botti send people to support the project without disclosing the fact that they worked for James Botti. And finally look for the mailing on June 28, 2006." (Emphasis added) DA 137. It further emphasized its Honest Services Mail Fraud theory in its Opening Statement when commenting on the anticipated testimony of two of its witnesses, Dan Widkins and Andrew Czaplinski, wherein the Government stated: " and we anticipate they'll say they did come to the hearing, they did support the project, and they did not disclose that they had any affiliation with James Botti."" D A 161 163." Then in opposing the Defendant's Motion in Limine, the Government stated: We anticipate that Greg Fracassini will take the stand next week and testify about the direction he was given by James Botti to go to the public hearing and misrepresent who he was representing. This is in 8

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the indictment, Your Honor. It's a paragraph in furtherance of the fraud and just so the record is clear, Your Honor, this is paragraph number 26.7 DA 161 It is disingenuous for the Government to argue in its brief that it prosecuted the Defendant on only a bribery theory when the record shows that the Government, at the very least, proceeded on duel theories. That is, the

Government presented arguments and proposed a jury charge supportive of both a bribery and non-bribery theory of Honest Services Mail Fraud. If the Government's Honest Services Mail Fraud theory was solely based upon a bribery scheme, then the Government would have only presented evidence that supported its theory that the Defendant bribed the Mayor and the Commissioners. All of the evidence presented by the Government of materially false or fraudulent pretenses, representations and/or trick, deceit and deception before the Planning and Zoning Commission did nothing to support a bribery scheme. In fact, if the Mayor and the Commissioners had been effectively bribed by the Defendant, there would have been no need for any evidence of misrepresentation" or "deceit".

Paragraph 26 of the Honest Services Mail fraud Count [Count Three] states; in or about May 2006 Botti directed employees and persons affiliated with his business to attend a public hearing before P & Z and speak in favor of Bottis application without disclosing their affiliation with Botti. 9

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In short, the evidence of "trick", "deceit", "false pretenses and misrepresentations" could only have been presented by the Government to support a separate theory of honest services mail fraud that was not a part of bribery scheme. It was presented to support a non-bribery theory of honest services mail fraud that has since been ruled improper by the U.S. Supreme Court in Skilling. C. The Non-Bribery Evidence Was Not Offered to Support a Traditional Mail Fraud Theory

The Government now appears to claim in its brief that the non-bribery evidence was offered only to support the traditional mail fraud count as it relates to the money and property prong of mail fraud (traditional mail fraud) and not the honest services prong. GB 35 However, that position is in conflict with its Closing Argument to the jury wherein the Government stated: As you will hear from the judge, mail fraud also means a materially false and fraudulent representation. And where is it in this case? Well, in this case there are a number of them. Again, James Botti sends Greg Fracassini and Watkins to the P & Z public hearing and tells them to lie about their association with him. That's materially false and fraudulent representations. (GA 726 727) *** Listen to the judge's instruction. The mailing does not have to be the fraud, just part of the fraud. Here, the fraud was a scheme and artifice to make millions of dollars of from the New Alliance Bank. And if all James Botti's actions in this conspiracy, bribery, and twoprong mail fraud were okay, why the cover-up of the gifts and benefits and bribes?" [emphasis added] (GA 729 730) ***

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What about the mail fraud? The Government has to show that Mr. Botti devised a scheme and artifice, consider the P & Z committee and there are two prongs to this. There's a prong, a scheme and artifice to defraud. Two prongs. One, to obtain money from New Alliance Bank and two, to deprive the citizens of Shelton of honest services of their public officials. Again, what did he do? You heard all the evidence about how he tried to con the P and Z commissioners into voting yes. [emphasis added] (GA 734 735) The Government, in its own words to the jury, clearly states that there are two prongs to the scheme and artifice to defraud. One of those prongs is to obtain money from New Alliance Bank. The other is to deprive the citizens of Shelton of honest services... [by trying] to con the P and Z commissioners into voting 'yes'". II. THE GOVERNMENT'S CLAIM THAT IT'S HONEST SERVICES MAIL FRAUD THEORY WAS LIMITED TO A BRIBE THEORY IS INCONSISTENT WITH ITS PROPOSED REQUESTS TO CHARGE THE JURY

The Governments Preliminary Requests to Charge GA 444- 567 was replete with non-bribery theory language as a basis to convict the Defendant of Honest Services Mail Fraud. That proposed language by the Government and used by the Court allowed the jury to find that the Defendant committed Honest Services Mail Fraud by material false and fraudulent pretenses, representations or promises, or by trick, deceit, deception or swindle, without finding the Defendant committed bribery. GA 889, 891, 892, 893, 894, 895, 898, 900, 901, 902. The Government's

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Preliminary Request to Charge No. 38 through 41, GA 505 521 stated in relevant parts as follows: Request No. 38 ELEMENTS OF MAIL FRAUD: First, that there was a scheme or artifice to defraud. There are two types of schemes to defraud charged in the case in Count Three. One is a scheme or artifice to defraud the victim of money or property by means of material false and fraudulent pretenses, representations or promises as alleged in the indictment. The second is a scheme or artifice to defraud the public of the intangible right of honest services of its public officials by means of material false and fraudulent pretenses, representations or promises as alleged in the indictment." [emphasis added] GA 505 Request No. 39: "FIRST ELEMENT- SCHEME TO DEFRAUD": "Thus, the first element that the government must prove beyond reasonable doubt is that there was either: (a) a scheme or artifice to defraud a victim of money or property by means of material false and fraudulent pretenses, representations or promises as alleged in the indictment or; (b) that there was a scheme or artifice asked to defraud the citizens of Shelton of the intangible right of honest services of its public officials by means of materially false and fraudulent pretenses, representations or promises as alleged in the indictment. I repeat, the government need not prove both of these ways, but must prove one of these ways." [emphasis added] GA 507 Request No. 40: "'SCHEME TO DEFRAUD' DEFINED": What is a scheme or artifice to defraud? A scheme or artifice is a plan for the accomplishment of that objective. A scheme to defraud is a plan, device, or course of action to obtain money or property (or to deprive the public of the intangible right of honest services of its public officials) by means of false or fraudulent pretenses, representations, or promises reasonably calculated to deceive.

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Fraud is a general term, which embraces all the various means by which human ingenuity can devise, and which are resorted to by an individual to gain an advantage over another by false representations, suggestions, or suppression of the truth, or deliberate disregard for the truth. Thus, a "scheme to defraud" is a plan to deprive another of money or property (or the intangible right of honest services of public officials) by trick, deceit, deception, or swindle. The scheme to defraud in this case is alleged to have been carried out by making materially false and fraudulent, prerepresentations and promises, which scheme and artifice is in substance as set forth in paragraphs 8 through 44 of count one of this indictment.8 A statement, representation, claim or document is false if it is untrue when made and was then known to be untrue by the person making it or causing it to be made. A representation or statement is fraudulent if it is falsely made with the intent to deceive.

The allegations in paragraphs 8-44 of the indictment contain various allegations of misrepresentation, concealment along with allegations of the Defendant providing favors and benefits as well as rewards to public officials and to cause payments to be made for the benefits of the public official. None of these allegations include bribery. (Note: The term: rewards refers to illegal gratuities not bribes. United States v. Bahel, No. 083327, __ F.3d __, 2011 WL 5067095 (2d Cir. Oct. 26, 2011). "At oral argument held after the Supreme Court issued its decision in Skilling, the government expressed its belief that section 1346 does not encompass the illegal gratuities, an argument it concluded was foreclosed by Skilling." p. 19). The terms "favors and benefits" do not contain the necessary: Quid Pro Quo requirement in order to establish a "bribery" or "bribery scheme" allegation. See also: United States v. Wilkes, No. 0850063, __ F.3d __, 2011 WL 4953070 (9th Cir. Oct. 19, 2011) (affirming conviction where evidence supported quid pro quo bribery theory) United States v. Langsford, 647 F.3d 1309 (11th Cir. 2011) (affirming conviction where evidence supported quid pro quo bribery theory). The only allegation of bribery in the indictment is contained in paragraphs 45-46. These allegations were not incorporated into Count Three, as part of the Governments allegations for the charge of mail fraud. 13

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Deceitful statements or half-truths or the concealment of material facts may also constitute false and fraudulent statements under the statute. The deception need not be premised upon spoken or written words alone. The arrangement of the words, or the circumstances in which they are used, may convey the false and deceptive appearance. If there is deception, the manner in which is accomplished is immaterial. The failure to disclose information may also constitute a fraudulent misrepresentation if the defendant was under a legal, professional, or contractual duty to make such a disclosure, defendant actually knew such disclosure ought to be made, and the defendant failed to make such disclosure with the intent to defraud. The false or fraudulent representations (or failure to disclose) must relate to a material fact or matter. A material fact is one which would reasonably be expected to be of concern to a reasonable and prudent person in relying upon the representation or statement in making a decision. This means that if you find a particular statement of fact to have been false, you must determine whether the statement was one that a reasonable person might have considered important in making his or her decision. The same principle applies to fraudulent half truths or omissions of material facts. The representations which the government charge were made as part of the scheme are set forth in paragraph 8 through 44 of count one of the indictment, which I have already read to you. It is not required that every misrepresentation charged in the indictment be proven. It is sufficient if the prosecution proves beyond a reasonable doubt that one or more of the alleged material misrepresentations were made in furtherance of the alleged, and to defraud." [emphasis added] GA 5095129

The only bribery reference in the Honest Services Mail Fraud charge requested by the Government that was given by the Court was Request No. 42 SCHEME TO DEFRAUD INVOLVING HONEST SERVICES". It states in part: "...So, for instance, a public official who accepts a bribe or corrupt payment breaches the duty of honest, faithful and disinterested service. While outwardly appearing to be exercising independent 14

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Undoubtedly, the proposed language contained in the Governments Preliminary Request to Charge GA 444 confirms that the Government proceeded on two tracks or two theories of culpability with regard to Honest Services Mail Fraud. One of these included "fraudulent misrepresentations", as well as Honest Services Mail Fraud by "trick, deceit, deception or swindle". This is the nonbribery language that was contained in their Request to Charge and used by the trial court in its charge to the jury. The other was bribery. Ergo, it is difficult to understand how the Government can now claim that it had always proceeded on only one theory of prosecution with regards to Honest Services Mail Fraud -- by way of bribery. In addition to its Requests to Charge, the Government presented substantial evidence and repeatedly argued in its Opening Statement, opposition to Defendants Motion in Limine and Closing Argument that it was relying in part on

judgment in his or her official work, the public official instead has been paid privately for his or her public conduct. Thus, the public is not receiving the public officials, honest and faithful service to which it is entitled. The Government alleges that the defendant, James Botti engaged in a scheme to defraud the citizens of Shelton, Connecticut of the intangible right to the honest services of its public officials by providing benefits such officials, with intent to influence such officials...." (GA 0514GA 0516). (Note: The balance of the Governments Preliminary Request to Charge regarding bribery was not given by the court.) 15

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a non-bribery theory to convict the Defendant of Honest Services Mail Fraud. (See Section 1(I)(B) supra.) As a result, this Court cannot conclude with any confidence that the jury did not convict the Defendant of Honest Services Mail Fraud founded upon nonbribery act(s) or scheme(s). This is evident based upon the case as it was presented and in view of the special Verdict Form (DA 77) that was ultimately returned in this case, infra. III. THE VERDICT FORM AND THE JURY'S FAILURE TO REACH A VERDICT ON THE BRIBERY COUNTS CONSTITUTES ONE MORE FACTOR FOR THIS COURT TO CONSIDER IN DECIDING TO GRANT THE DEFENDANT A NEW TRIAL.

Despite the prevailing view as it has been cited in Yeager v United States, 129 S. Ct 2360 (2009) that a mistrial or hung jury does little to assist in encipher[ing] what a hung count represents. (GB 38 citing to Yeager p. 2368). That logic should not be applied in this case. This is because a review of the Botti Verdict Form (DA 77) can help to decipher what the jury did not doand would have had to have done under the law to have reached a proper verdict. In this case, the jury would have needed to conclude that the Defendant was guilty of each element of 18 U.S.C 666 bribery in order to have properly convicted him of Honest Services Mail Fraud. Therefore, in order for the jury to have properly convicted the Defendant of Honest Services Mail Fraud in Count

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Three, they would have had to also conclude that the Defendant was guilty of Bribery in Count Two. Without having reached that conclusion, the Honest

Services Mail Fraud verdict could not be based upon a bribery scheme. The bribery charge in Count Two is-- in effect a lesser included charge of honest services mail fraud. The elements are identical, except for Honest Services Mail Fraud containing the additional elements of the mailing and the scheme. The charge in Count Two of the indictment containing 18 USC 666 bribery has no other or additional elements distinguishable from the Third Count of the Indictment containing Honest Services Mail Fraud. If the honest services mail fraud was not based upon a bribery scheme then it is not a valid basis for the jurys finding of guilty on Count Three. As a result, under the facts of this case, the hung jury on Count Two does prove to be helpful in understanding how this particular jury instruction was applied by the jury to the facts of this case. The jury did not just ignore the evidence and the jury charge regarding the elements of 666 bribery in Count Two of the indictment, and then suddenly apply them to Count Three. It is not logical to conclude that the jury could properly find the Defendant guilty of Honest Services Mail Fraud by way of bribery, but not guilty of bribery itself.

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IV.

THE EXAMPLE USED BY THE GOVERNMENT IN ITS BRIEF TO ILLUSTRATE ITS CLAIM THAT THE JURY COULD HAVE FOUND THE DEFENDANT GUILTY OF A BRIBERY SCHEME WITHOUT FINDING THAT THE DEFENDANT COMMITTED BRIBERY, EITHER IGNORES OR MISCONSTRUES THE ELEMENTS OF 18 U.S.C. 666

Count 2 of the Indictment charges the Defendant with violating Title 18 U.S.C. 666. The specific wording of that section of the statute provides in

relevant part as follows: Whomever... (2), corruptly gives, offers, or agrees to give anything of value to any person, with intent to influence or reward an agent of an organization or of a State, local, or Indian tribal government, or any agency thereof, in connection with any business, transaction, or series of transactions of such organization, government, or agency involving anything of value of $5000 or more." Shall be guilty of a crime." [emphasis added] The Government seems to ignore the plain language of the statute in its argument to this Court at pp 43-45 of its brief. The plain language of the statute not only states: whomever corruptly gives", but also contains the words: "offers, or agrees to give". Despite the express language in this statute, the

Government goes to great lengths in an attempt to illustrate what they claim is an important point for this Court to consider. That is, that the jury could have found the Defendant guilty of Honest Services Mail Fraud by way of a bribery scheme even though the jury failed to convict him of the underlying bribery charge in the second count of the Indictment.

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The Government erroneously makes this claim by way of an example. In it they claim that there is some sort of difference between the mere "offer[ing]" of a bribe and the actual "giv[ing]" of a bribe -- as to culpability under the federal bribery statute.10 They do this despite the fact that an "offer to give a bribe, is just as much a violation of 18 USC 666 as is the actual act of giving a bribe. Under the law, one need not actually complete the act of giv[ing] the bribe in order to be guilty of bribery. The Government offers this example to support its argument that a Defendant could commit honest services mail fraud by way of a bribery scheme" without actually giving a bribe. That is, if an individual offers a bribe but later changes his mind and never actually gives over the bribe, the Government claims

A review of the Government's Preliminary Requests to Charge on bribery reveals that although the Government included the correct language of 18 U.S.C. 666 in quoting the statute GA 493, the Government failed to include the appropriate language from the statute regarding anyone who not only "gives" (anything of value to any person, with intent to influence or reward) shall be guilty of a crime but also anyone who "offers, or agrees to give (anything of value to a person, with the intent to influence) shall be guilty of a crime." GA 493 500. The language contained in the Governments Preliminary Requests to Charge GA 494, 498, 499, 500 is an inaccurate -- or incomplete statement of the law. That flaw in the Government's argument apparently led the Government to erroneously conclude that the jury could have properly found the Defendant guilty of Honest Services Mail Fraud in this case without also having to find him guilty of bribery. These inaccurate or incomplete statements of law regarding the elements of bribery as proposed by the Government were not included in the trial court's charge to the jury. 19

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he would not be guilty of committing bribery, but would still be guilty of honest services mail fraud. The Government states at pp. 43-44 of its brief: A defendant mails a letter to a local public official requesting that the official use his authority to help the defendant in exchange for a future monetary payment the bribe promise. The local public official, who has previously refused to support legislation that would favor businesses in the defendant's industry, suddenly supports legislation that favors the defendants business. Thereafter, the defendant double crosses the public official and refuses to provide any monetary payment to the public official. In that case, while no bribe was ever paid, the defendant did engage in a mail fraud scheme to deprive the citizens of their right to receive the honest services of their local official. While outwardly appearing to be exercising independent judgment in his official work, the public official instead acted because he hoped to receive a corrupt payment. Thus, as a result of the defendant's conduct, the public did not receive the public officials honest and faithful service to which was entitled, even though no actual bribe was paid. In sum, there is no requirement that a bribe be paid for defendant to be guilty of engaging in honest services mail fraud. (GA 43- 44). The flaw in the argument as presented is that in addition to being guilty of Honest Services Mail Fraud by way of a bribery scheme, the Defendant would also be guilty of bribery. The actions by the Defendant in the first sentence of the example (A defendant mails a letter to a local public official requesting that the official use his authority to help the defendant in exchange for a future monetary payment the bribe promise.) constitute a valid offer under 18 U.S.C. 666 and as a result would be enough to find a defendant guilty of bribery. Again, this is because 18 U.S.C. 666 makes no distinction between the mere offer[ing] 20

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and the actual giv[ing] of a bribe. The mere offer of a bribe is just as much a violation of the statute as the actual giving of one. In fact, as it pertains to the jury's findings in this particular case, that was the language given by the Court in its charge to the jury regarding 18 U.S.C. 666. The trial court correctly quoted the statute as follows: Count 2 of the indictment charges the defendant, as I've just read, with violating section 666 (a) (2) of Title 18 of the United States Code. That section provides, in relevant part: "whoever corruptly gives, offers, or agrees to give anything of value to any person, with intent to influence or reward an agent of an organization or of a State, local, or Indian tribe government or any agency thereof, in connection with any business, transaction, or series of transactions of such organizations, government, or agency, or involving anything of value of $5000 or more shall be guilty of a crime." [emphasis added] GA 870 The trial court goes on to further define this section of the 18 U.S.C. 666 as follows: The third element, the government must prove beyond a reasonable doubt is that the defendant gave or agreed to give or offer something of value to Mark Lauretti, as alleged in the indictment. The statute makes no distinction between offering and giving of a bribe. The mere offer of a bribe is just as much a violation of the statute as the actual giving of one." [emphasis added] GA 881 Ironically, when the correct application of law is applied to the facts contained in the Government's example it tends to support just the opposite of what the Government seeks to prove. That is to say, when applying the quote from the Government's example GB 43-44: A defendant request[ed] that the official use

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his official authority to help the defendant in exchange for a future monetary payment, the bribe promise, regardless of whether or not the defendant later refused to provide monetary payment to the public official, this offer" alone is enough under the law to find a defendant guilty of bribery. The law is clear that a "mere offer of a bribe is just as much a violation of the statute as the actual giving of one." GA 881. As a result of the correct application of the law to the example posited by the Government, it is easy to see that the jury could not have properly found the Defendant guilty of honest services mail fraud without having also found the Defendant guilty of the crime of bribery. 2. CONCLUSION For all of the above reasons this Court should grant the Defendant a new trial on Count Three of the Indictment, Honest Services Mail Fraud. Respectfully submitted, By /s/ George W. Ganim, Jr. George W. Ganim, Jr. The Ganim Law Firm P.C. 4666 Main Street Bridgeport, CT 06606 (203) 372-7772 Counsel for the Appellant

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CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because this brief contains 6,183 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Word in 14-point Times New Roman. By /s/ George W. Ganim, Jr. George W. Ganim, Jr.

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CERTIFICATION OF SERVICE CAPTION: United States of America v. Botti DOCKET NUMBER: 10-3891 I, George W. Ganim, Jr., hereby certify under penalty of perjury that on December 27, 2011, I served a copy of the Reply Brief for Appellant James Biotti by ___ United States Mail ___ Federal Express ___ Overnight Mail ___ Facsimile X E-mail (via ECF) ___ Hand delivery on the following parties: Richard Schechter, Senior Litigation Counsel Rahul Kale, Assistant U.S. Attorney United States Attorney's Office, District of Connecticut Room 309 1000 Lafayette Boulevard Bridgeport, CT 06604 (203) 696-3000

December 27, 2011

/s/ George W. Ganim, Jr. George W. Ganim, Jr.,

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