Opinion

United States v. Bryant

556 F. Supp. 2d 378
2008 U.S. Dist. LEXIS 51395
2008 WL 2315720

Court: District Court, D. New Jersey
Filed: Jun 5, 2008
Status: Published
Author: Wolfson
On the bench: Wolfson
Cited by: 9 cases
Authority: More cited than 58.1%

“Although there is authority suggesting that the § 666(c) exception is a question of fact for the jury, ... Defendants rely on cases where, before trial, the court has dismissed § 666 counts as a matter of law based on the ‘safe harbor’ provision of § 666(c). Thus, for purposes of this motion, the Court will accept that there may be situations where it is appropriate to dismiss an Indictment pursuant to § 666(c).”

How later courts described this case

“Although there is authority suggesting that the § 666(c) exception is a question of fact for the jury, ... Defendants rely on cases where, before trial, the court has dismissed § 666 counts as a matter of law based on the ‘safe harbor’ provision of § 666(c). Thus, for purposes of this motion, the Court will accept that there may be situations where it is appropriate to dismiss an Indictment pursuant to § 666(c).”

Written by the judges who cited it.

The opinion

Opinion

WOLFSON, District Judge:

Presently before the Court are the motions of Defendants, Wayne Bryant

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(“Bryant”) and Michael Gallagher (“Gallagher”) (collectively “Defendants”), to dismiss all counts of the Indictment against them, pursuant to

Fed. R. Crim P.

12(b)(3), and to sever various sets of counts in the Indictment, as well as for separate trials on Counts 1-8. At all times relevant to the allegations in the Indictment, Bryant was a State Senator of New Jersey and Gallagher was the Dean of the School of Osteopathic Medicine (“SOM”), which operated within the University of Medicine and Dentistry of New Jersey (“UMDNJ”). Counts 1-6 allege that Bryant and Gallagher engaged in a scheme to defraud the New Jersey public of Bryant’s honest services in violation of 18 U.S.C. §§ 1341 , 1343, and 1346.

Count 7 charges Bryant with solicitation and acceptance of a corrupt thing of value involving an organization receiving federal funds in violation of 18 U.S.C. § 666 . Count 8 charges Gallagher with offering and giving a corrupt thing of value involving an organization receiving federal funds in violation of 18 U.S.C. § 666 . Counts 9-14 allege that Bryant engaged in a scheme to defraud the New Jersey Division of Pensions and Benefits of money and property in violation of 18 U.S.C. § 1341 . Counts 15-17 allege that Gallagher engaged in a scheme to defraud SOM and UMDNJ of his honest services and money and property in violation of 18 U.S.C. §§ 1341 , 1343, and 1346. Finally, Counts 18-20 charge Gallagher with fraud involving an organization receiving federal funds in violation of 18 U.S.C. § 666 .

Defendants have filed separate briefs, but have also joined in each other’s motions and briefing. The Government has opposed the motions and oral argument was heard on March 11, 2008. For the reasons that follow, Defendants’ motions to dismiss are denied, with the exception of Bryant’s motion to dismiss Count 9, and Defendants’ motion to dismiss the failure to disclose theory of honest services fraud plead in paragraph 18 of Counts 1-6. As to Defendants’ severance motions, the Court finds that Counts 1-14 are appropriately tried in a single trial, Defendants are properly joined in Counts 1-6, and that Counts 15-20 require a separate trial. For clarity of presentation, the Court will summarize the pertinent factual background relating to each set of Counts within the separate sections analyzing those Counts.

I. Standard of Review

Defendants move to dismiss all Counts of the Indictment pursuant to Rule 12(b)(3). “Rule 7(c)(1) requires that an indictment contain only a ‘plain, concise, and written statement of the essential facts constituting the offense charged’ and include the statute(s) that the defendant(s) are alleged to have violated.”

United States v. Delle Donna,

552 F.Supp. 475, 482 , 2008 WL 1961485, *5 (D.N.J. Mar. 14, 2008) (citation omitted). As succinctly stated by the Third Circuit, the standard for evaluating the sufficiency of an indictment is as follows:

We deem an indictment sufficient so long as it “(1) contains the elements of the offense intended to be charged, (2) sufficiently apprises the defendant of what he must be prepared to meet, and (3) allows the defendant to show with accuracy to what extent he may plead a former acquittal or conviction in the event of a subsequent prosecution.” Moreover, “no greater specificity than the statutory language is required so long as there is sufficient factual orientation to permit the defendant to prepare his defense and to invoke double jeopardy in the event of a subsequent prosecution.”

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United States v. Kemp,

500 F.3d 257, 280 (3d Cir.2007) (citations omitted). Dismissal under Rule 12(b)(3) “may not be predicated upon the insufficiency of the evidence to prove the indictment’s charges,”

United States v. DeLaurentis,

230 F.3d 659, 661 (3d Cir.2000), and thus the Court must assume that the allegations in the Indictment are true.

United States v. Besmajian,

910 F.2d 1153, 1154 (3d Cir.1990). The Court will review the Indictment “using a common sense construction,”

United States v. Hodge,

211 F.3d 74, 76 (3d Cir.2000), “examine the [statutes at issue] as applied to the facts as alleged in the Indictment, and determine whether Defendants’ conduct, as charged, ‘reflects] a proper interpretation of criminal activity under the relevant criminal statute[s].’”

Delle Donna,

2008 WL 1961485 at *5 (quoting

United States v. Weckt,

No. 06-0026, 2007 WL 3125096 , *5 (W.D.Pa. Oct. 24, 2007)).

II. Counts 1-8

A. Factual Background

Counts 1-6 allege that Bryant and Gallagher engaged in a scheme to defraud the New Jersey public of Bryant’s honest services as a State Senator. Counts 7-8 allege that Bryant solicited and accepted, and Gallagher offered and gave, a corrupt thing of value involving an organization receiving federal funds. The following facts are based on the allegations relevant to these Counts of the Indictment.

From 2002 through 2006, Bryant was a State Senator representing New Jersey’s Fifth Legislative District. Indictment, Counts 1-6, ¶ 2. In or about 2002 and 2003, Bryant was Assistant Democratic Leader and co-Chairman of the Senate Budget and Appropriation Committee. In or about 2004, 2005 and 2006, Bryant was the Deputy Majority Leader and sole Chairman of the Senate Budget and Appropriations Committee.

Id.

From in or about May 13, 2002 until April 30, 2006, Gallagher was Dean of SOM and the Chairperson of the Headache Center, a department within SOM.

Id.

at ¶¶ 8-9 .

The honest services fraud scheme, Counts 1-6, centered around UMDNJ, the State of New Jersey’s school of health sciences, which was a recipient of several hundred million dollars of annual funding from the State of New Jersey. One of UMDNJ’s eight schools was SOM.

Id.

at ¶ 1 . In early 2002, Gallagher was the Vice Dean of SOM. It is alleged that, in or about February 2002, Bryant and others assisted Gallagher in his effort to become the Dean of SOM, including arranging meetings between Gallagher and members of the state legislature, and drafting a letter, which was signed by Bryant and four other members of the legislature, and sent to the Governor of New Jersey and to the President of UMDNJ in support of Gallagher’s bid to become Dean.

Id.

at ¶ 7 . In or about May 2002, Gallagher was selected as interim Dean, and in November 2002, Gallagher became the permanent Dean of SOM.

In or about March 2002, the Governor created a Commission of Health Science, Education and Training, chaired by P. Roy Valegos (“the Vagelos Commission”), to evaluate the medical education offered by New Jersey’s state funded universities, including UMNDJ and SOM. In or about October 2002, the Vagelos Commission submitted findings to the Governor, which identified numerous problems, found that UMDNJ failed to “achieve excellence,” and recommended that Rutgers University, UMDNJ, and the New Jersey Institute of Technology merge into a single university system. This recommendation, if adopted, directly threatened the independence of SOM, as well as future funding for SOM.

Id.

at ¶¶ 10-12 .

Additionally, in or about April 2003, Gallagher reported to SOM staff that

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since in or about July 2002, SOM had “been in the midst of unprecedented ‘financial strain’ ... caused in large part by significant reductions in State funding.”

Id.

at ¶ 13 . As Dean, Gallagher was responsible for oversight of the budget and fiscal management of SOM,

Id.,

and, in or about April 2003, he imposed budget cuts and other cost-cutting measures at SOM.

Id.

at ¶ 15 . During this time, based upon his performance evaluation, including “administrative competency, leadership, and organizational/business development,” Gallagher was eligible for annual incentive bonuses.

Id.

at ¶ 14 .

It is alleged that Bryant and Gallagher devised and engaged in a scheme to defraud the New Jersey public of Bryant’s honest services by agreeing to a

quid pro quo

bribery arrangement:

It was an object of [the] scheme and artifice to defraud that defendant R. MICHAEL GALLAGHER used his position as Dean of SOM to put defendant WAYNE R. BRYANT on the SOM payroll, and thereafter, with others, caused defendant BRYANT to receive a stream of corrupt payments and other financial benefits from SOM, in exchange for defendant BRYANT using his position as a State Senator to take official action to advocate on behalf of SOM, including (a) to protect the interests of SOM against the recommendations of the Vagelos Commission and (b) to obtain and attempt to obtain additional funding and other benefits from the State of New Jersey for SOM and its programs. It was a further object of this scheme and artifice to defraud that defendants BRYANT and GALLAGHER did not disclose and attempted to conceal material information regarding the nature of defendant BRYANT’s corrupt arrangement at SOM.

Id.

at ¶ 18 .

Allegedly, in furtherance of the scheme, Gallagher created a paid position at SOM for Bryant entitled “Program Support Coordinator,” which included “planning, directing, organizing and implementing” efforts “to improve University communications, image, receptivity and relationships with local governments, community and civic organizations, and local residents,” and Bryant assumed that position in March 2003.

Id.

at ¶ 19 .d., g.

In addition, Gallagher took steps “to make it falsely appear that ... Bryant was assuming a legitimate and bona fide position and that there had been a competitive process leading to defendant BRYANT’s selection.”

Id.

at ¶ 19 .f. Further, Bryant falsely stated to SOM staff that his position at SOM had been approved by the Office of Legislative Services (“OLS”), when Bryant never received any opinion from OLS regarding the propriety of his employment with SOM.

Id.

at ¶ 19 .e. As a result of his position at SOM, Bryant received a stream of payments for the years 2003 through 2006.

Id.

at ¶ 19 .g.

In exchange for his position at SOM, and the resulting payments he received, Bryant allegedly used his office as a State Senator in various ways to aid SOM. In or about 2003, Bryant used his State Senate staff to arrange meetings between Gallagher and members of the Senate Budget and Appropriations Committee, at which Gallagher presented a “white paper” regarding SOM’s need for funding.

Id.

at ¶ 20 .a. In or about March 2003, Bryant directed changes in the New Jersey state budget to benefit UMDNJ and SOM.

Id.

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at ¶ 20.b. From in or about March 2003 to June 2006, Bryant “represented, appeared for, and negotiated on behalf of SOM with state agencies, and used his official position to influence those agencies to take action favorable to SOM.”

Id.

at ¶ 21 .a.-d.

These actions by Bryant redounded to the benefit of Gallagher, as Dean of SOM: Bryant’s “actions on behalf of SOM directly and indirectly helped defendant R. MICHAEL GALLAGHER meet or exceed his performance goals as Dean, and defendant GALLAGHER received favorable performance appraisals and incentive bonuses of approximately $42,000 in the fall of 2003 and $56,875 in the fall of 2004.”

Id.

at ¶ 23 .

Also in furtherance of their scheme, it is alleged that both Defendants took actions to conceal the nature of their corrupt agreement. Even though Bryant’s “primary role at SOM was to use his official position to advocate on behalf of SOM ... and to provide official assistance in obtaining state funds for SOM,” Gallagher caused Bryant’s publicly-disclosed job description to misleadingly state that his job was to “improve University communications, image, receptivity, and relationships with local governments, community and civic organizations and local residents.”

Id.

at ¶ 22 .a. Bryant, in violation of the New Jersey Legislative Code of Ethics, “intentionally failed to disclose his payments from SOM on his 2003 Legislator’s Financial Disclosure Statement,” which he filed in April 2004.

Id.

at ¶ 22 .b. Further, “[a]t meetings with state officials regarding UMDNJ and SOM business, and in his dealings with staff and members of the New Jersey State Legislature with whom he worked on state budget issues related to UMDNJ and SOM, defendant WAYNE R. BRYANT did not disclose that he was being paid by SOM.”

Id.

at ¶ 22 .d.

B. Analysis of Counts 1-6

Counts 1-6 allege that Bryant and Gallagher engaged in a scheme to defraud the public of Bryant’s honest services in violation of 18 U.S.C. §§ 1341 , 1343, 1346 and 2. The Third Circuit has recently laid out the elements of honest services fraud, which is a species of mail and wire fraud:

To prove mail fraud, the government must establish “(1) the defendant’s knowing and willful participation in a scheme or artifice to defraud, (2) with the specific intent to defraud, and (3) the use of the mails ... in furtherance of the scheme.”

United States v. Antico,

275 F.3d 245, 261 (3d Cir.2001). Congress has clarified that “the term ‘scheme or artifice to defraud’ includes a scheme or artifice to deprive another of the intangible right of honest services.” 18 U.S.C. § 1346 . Honest services fraud, in turn, typically occurs in either of two situations: “(1) bribery, where a [public official] was paid for a particular decision or action; or (2) failure to disclose a conflict of interest resulting in personal gain.”

Antico,

275 F.3d at 262-63 .

Kemp,

500 F.3d at 279 . “Identical standards apply to the ‘scheme to defraud’ under both the mail and the wire fraud statutes.”

Antico,

275 F.3d at 262 . The Indictment in the case at bar charges both theories of honest services fraud set forth in

Kemp ,

i.e., bribery and failure to disclose a conflict of interest, and Defendants challenge the sufficiency of the allegations with respect to both theories. The Court will consider each theory in turn. First, however, the Court must consider Defendants’ contention that the Indictment fails to adequately allege either theory of honest services fraud, but instead, charges a plainly inadequate “structural fraud.” Gallagher’s Brief, 20-23.

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1. The Indictment Does Not Allege a “Structural Fraud”

Defendants argue that the Indictment merely alleges a “structural fraud” — that is, they are charged with honest services fraud because Bryant received and held a paid position at SOM, an institution which happened to benefit from official actions he took as a state legislator. Gallagher’s Brief, 20-23. However, it is plain that the Indictment does not charge the Defendants with honest services fraud merely because Bryant was a dual office holder.

The Indictment alleges that Bryant and Gallagher had a

quid pro quo

bribery arrangement, whereby Bryant exercised discretion in his official capacity as a state legislator favorably towards SOM in exchange for a salary from SOM. Indictment, Counts 1-6, ¶ 18. Thus, Defendants’ “scheme and artifice to defraud the State of New Jersey and its citizens of the right to defendant WAYNE R. BRYANT’s honest services” was a classic bribery scheme. And, Gallagher does not suggest that “a classic bribery scheme would not violate Section 1346.” Gallagher’s Brief, 13. As charged, a bargain was struck: Gallagher caused Bryant to receive a salary from SOM in exchange for Bryant using his office as a state legislator to benefit SOM, and in turn, to benefit Gallagher.

2. The

Quid Pro Quo

Bribery Theory a. The Legal Standard

The Third Circuit has repeatedly stated that, in the honest services fraud context, bribery occurs when “a public official [is] paid for a particular decision or action.”

Kemp,

500 F.3d at 279 (citing

Antico,

275 F.3d at 262-63 );

United States v. Panarel-la,

277 F.3d 678, 690 (3d Cir.2002). In

Kemp ,

the court elaborated: “bribery requires a specific intent to give or receive something of value

in exchange

for an official act.”

Kemp,

500 F.3d at 281 (citation and internal quotations omitted) (emphasis in original). In sustaining the trial court’s jury instructions for honest services fraud under a bribery theory, the court stated that “the District Court repeatedly emphasized the critical

quid quo pro,

explaining that ‘[t]o establish such a bribery the government must prove beyond a reasonable doubt that there was a quid quo pro, ... that the benefit was offered in exchange for the official act.’”

Id.

at 281 (citation omitted). Again, the court explained that “[t]he key to whether a gift constitutes a bribe is whether the parties intended for the benefit to be made in exchange for some official action.”

Id.

at 282 .

Moreover, the court specifically addressed the sufficiency of the allegations in the indictment with respect to the bribery theory of honest services fraud against bankers who allegedly bribed a public official with loans. The court stated:

The indictment refers to “the benefits that HOLCK and UMBRELL extended to Kemp with the intent to influence KEMP’s official actions,” and charges that “defendants GLENN K. HOLCK and STEPHEN M. UMBRELL, on behalf of their employer, Commerce Bank, provided benefits to Kemp in the form

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of otherwise unavailable loans

in exchange

for favorable decisions by KEMP as Treasurer of Philadelphia.” These allegations were sufficient to charge Hoick and Umbrell with honest services fraud under a bribery theory.

Id.

at 280-81 (citations omitted) (emphasis added).

The Indictment here tracks the language that the Third Circuit found sufficient in

Kemp

for a

quid pro quo

bribery arrangement. The Indictment specifically alleges that “defendant R. MICHAEL GALLAGHER used his position as Dean of SOM to put defendant WAYNE R. BRYANT on the SOM payroll, and thereafter ... caused defendant BRYANT to receive a stream of corrupt payments and other financial benefits from SOM,

in exchange

for defendant BRYANT using his position as a State Senator to take official action to advocate on behalf of SOM.” Indictment, Counts 1-6, ¶ 18 (emphasis added). The

quid

was Bryant’s pensionable salary from SOM, i.e., the “corrupt payments and other financial benefits from SOM.” The

quo

was Bryant taking official action as a state legislator to benefit SOM, i.e., “Bryant using his position as a State Senator to take official action to advocate on behalf of SOM.” Finally, there was a

pro,

a linkage

between the

quid

and the

quo,

i.e., Bryant’s SOM salary was given “in exchange” for taking official action favorable to SOM. Nonetheless, Defendants argue that the Indictment fails to adequately allege a

quid pro quo

bribery; it fails to allege either a sufficient

quid

or a sufficient

quo.

I disagree.

b. The

Quid

— Bryant’s SOM Salary

Defendants argue that

Kemp

stands for the proposition that in order for a payment to a public official in exchange for official action to constitute a

quid,

the payment must be given

solely

because of the official action at issue. In

Kemp ,

bankers were convicted of bribing a public official by granting him loans that were otherwise unavailable to the official.

Kemp,

500 F.3d at 281, 284 . Finding that there was sufficient evidence for the jury to conclude that the loans were the

quid

in a.

quid pro quo

bribery arrangement, the court held, “[a]s a factual matter, a reasonable jury certainly could have found that these loans were not advanced in the usual course of business and were instead extended to Kemp and his friends

solely

because of Kemp’s position.”

Id.

at 284 (emphasis added). In other words, a reasonable jury could find that the loan was not a normal commercial transaction between the bankers and the public official, but rather the equivalent of a cash-stuffed envelope given “solely because of Kemp’s position.”

Id.

Seizing on this quotation from Kemp— that the loans were otherwise unavailable and given to Kemp “solely because of Kemp’s position” — Defendants argue that the Indictment here is deficient because it fails to allege that Bryant’s salary payments were given “solely” because of his official actions. The portion of the Indictment dealing with honest services fraud does not deny that Bryant did any legitimate work for SOM; it simply does not address the matter.

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Defendants’ argument is based on a misreading of

Kemp

and reflects an improbably narrow conception of the

quid

required for a

quid pro quo

bribery. For example, suppose the Government had alleged that Bryant and Gallagher specifically agreed to the following: SOM would pay Bryant a pensionable salary, and in exchange, Bryant would take both official action benefiting SOM and perform some legitimate work for SOM. According to Defendants, that salary is not a sufficient

quid

because it was not given “solely” on account of Bryant’s official action; it was also given for another reason, i.e., that Bryant agreed to perform legitimate work for SOM. But these factual allegations clearly satisfy the standard that

Kemp

articulates for a

quid pro quo

bribery in the context of an honest services fraud: “a reasonable jury could conclude beyond a reasonable doubt that Kemp ‘was paid for a particular decision or action.’ ”

Id.

at 279 (citation omitted). “[Bjribery requires ‘a specific intent to give or receive something of value in exchange for an official act.’ ”

Id.

at 281 (citation omitted). In the foregoing hypothetical, there is no question that, even though the salary payments are not given “solely” in exchange for official action, they are made with “a specific intent to give ... [salary payments] in exchange for official action.”

Id.

Similarly, the exchange alleged in the Indictment, which differs from the hypothetical only insofar as it is alleged that Bryant’s “primary role” at SOM was to use his official position as a state legislator to advocate on behalf of SOM and assist SOM in obtaining state funds, includes a sufficient

quid,

i.e., payment of Bryant’s SOM salary.

Cf. United States v. Coyne, 4

F.3d 100, 113 (2d Cir.1993) (“we noted that there could be dual purposes for payments, stating that a ‘valid purpose that partially motivates a transaction does not insulate participants in an unlawful transaction from criminal liability’ ”) (citation omitted);

United States v. Urciuoli,

513 F.3d 290, 292, 297 (1st Cir.2008) (“Celona’s actions in promoting or blocking legislation to favor RWMC” were “properly considered as potentially criminal” even though the “disguised bribe” was “in the form of a sham

or largely

sham job”) (emphasis added). Thus, even if Bryant’s salary may have been paid in exchange for legitimate work at SOM,

in addition

to his taking official action on behalf of SOM, that does not mean that the salary cannot constitute payment for official action, and hence a sufficient

quid.

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c. The

Quo

Defendants also challenge the sufficiency of the

quo,

i.e., Bryant’s taking official action to benefit SOM, for a different reason. They acknowledge that an allegation of a

quid, pro quo

exchange is the essential element of the bribery theory of honest services. Defendant’s Reply Brief, 8;

Kemp,

500 F.3d at 281 (“bribery requires a specific intent to give or receive something of value

in exchange

for an official act”) (citation and internal quotations omitted) (emphasis in original). However, they argue that even though the’ Indictment explicitly states that there was an “exchange,” the “exchange” as plead is inadequate without a further allegation: that Bryant took official action he would not have taken absent the bribery arrangement with Gallagher. Hence, Defendants assert that “the government has alleged no facts on which any reasonable jury could find that Bryant deviated from his usual position of supporting South Jersey institutions. Thus, the government has not alleged that Bryant ... engaged in an ‘exchange.’ ” Defendants’ Reply Brief, 9.

For a public official to give a thing of value, i.e., a

quo,

to the payor of the bribe, the official must accept the bribe with the intent to be

influenced

by the bribe. Thus, according to Defendants, without a specific allegation that Bryant took actions he otherwise would not have taken, the Indictment does not allege that Bryant was

influenced

by the bargain he struck with Gallagher, and despite the Indictment’s use of the word “exchange,” Bryant “exchanged” nothing. Hence, there was no

quid pro quo

bribery arrangement.

See

Defendants’ Reply Brief, 10 (“[OJnly when the government charges ‘influence’— and the ‘exchange’ that it denotes — does the government state a

quid pro quo

bribe” and “[a]s a matter of pure logic, a person who intends to do exactly what he would have done all along, payment or no, does not ‘intend to be influenced’ by the payment”) (emphasis in original).

This argument fails because the Indictment’s allegation of an “exchange” necessarily signifies that Bryant accepted the bribe, his SOM salary, with the intent to be influenced in the official actions listed in the Indictment. The Supreme Court has made clear that an allegation that an official “exchanged” official acts for a bribe, as plead in paragraph 18 of the Indictment, is just another way of stating that the official intended to be influenced:

Bribery requires intent ... “to be influenced” in an official act ... In other words, for bribery there must be a

quid pro quo-&

specific intent to give or receive something of value

in exchange

for an official act.

United States v. Sun-Diamond Growers of California,

526 U.S. 398, 404-05 , 119 S.Ct. 1402 , 143 L.Ed.2d 576 . Thus, the “specific intent to ... receive something of value in exchange for an official act” is another way of stating that the official had an intent “ ‘to be influenced’ in an official act.”

Id.

at 404-05 , 119 S.Ct. 1402 . The Indictment does allege — through the allegation of an “exchange” — that Bryant was influenced in his official acts.

Of course, as Defendants’ argument suggests, another way of alleging that a public official accepted a payment with the intent to be influenced is to state that, as a result

*391

of the bribe, the official took actions he otherwise would not have taken. Indeed, a fair reading of the Indictment suggests that, as a result of an agreement to exchange official actions for an SOM salary, Bryant did take at least some actions that he otherwise would not have taken, as the following paragraphs will illustrate.

See Hodge,

211 F.3d at 76 (“In evaluating whether Hodge’s indictment sufficiently sets forth the essential facts of the offense charged, we review the indictment using a common sense construction”).

The Indictment alleges that the scheme to defraud ran from “in or about the fall of 2002 to in or about February, 2006,” Indictment, Counts 1-6, ¶ 17. The scheme began in late 2002 through early 2003, when Bryant first started receiving his salary from SOM, and involved Bryant using his Senate office to further the interests of SOM through as late as 2006. The Indictment alleges that in the fall of 2002, in the same meeting where Bryant informed the President of UMDNJ that he wanted UMDNJ to pay property taxes on a proposed building in Camden County, Bryant solicited the President to give him a paid position at UMDNJ.

Id.

at ¶ 19.a. Between then and March 2003, Gallagher and Bryant took steps to secure a position for Bryant at SOM, including meeting with the UMDNJ Vice President and Gallagher’s creation of new position at SOM for Bryant.

Id.

at ¶ 19.b., d., f.-g.

The Indictment further alleges that contemporaneous with, and subsequent to, Bryant’s efforts to secure a position at SOM, over more than a three year period, Bryant took an assortment of official actions that favored SOM. In December 9, 2002, at a meeting of the Senate Education Committee, Bryant strongly criticized the findings of the Vagelos Commission to protect the interests of SOM.

Id.

at ¶ 19c. In or about 2003, Bryant “used his State Senate staff to arrange meetings for defendant R. MICHAEL GALLAGHER with members of the Senate Budget and Appropriations Committee, at which defendant Gallagher presented a ‘white paper’ regarding capital projects at SOM that needed funding.”

Id.

at ¶ 20.a. From in or about March 2003 through June 2006, Bryant directed changes in the budget of the State of New Jersey that allocated large sums of money to SOM.

Id.

at ¶ 19.b. For fiscal year 2004, Bryant inserted

“specific language provided by defendant Gallagher into the state budget

which described the merits of SOM’s Center for Children’s Support, and supported an $800,000 allocation for SOM,” which he ensured was included in the state budget in fiscal years 2004, 2005 and 2006.

Id.

at ¶ 20.b.ii.-iii. (emphasis added).

Further, from in or about August 2003 through late 2005, Bryant “represented, appeared for, and negotiated on behalf of SOM with state agencies, and used his official position to influence those agencies to take action favorable to SOM.”

Id.

at ¶ 21. These included setting up a meeting between himself, Gallagher, and the Commissioner of the New Jersey Department of Health and Senior Services where Bryant and Gallagher sought to influence the Commissioner to allocate to SOM a portion of funds appropriated to the Cancer Institute of South Jersey,

Id.

at ¶ 21.a.; setting up a meeting between himself, Gallagher, and the Treasurer of the State of New Jersey at Bryant’s legislative office in Camden, New Jersey, “in an effort to influence the Treasurer to disburse ‘special’ targeted tax relief payments to the Borough of Stratford, New Jersey, to compensate the borough for the land that SOM was planning to acquire,”

Id.

at ¶ 21.-c.; and two other instances where Bryant persuaded state agencies to provide funding to SOM.

Id.

at ¶ 21.b., d.

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Given these allegations, it is implausible to read the Indictment to suggest that Bryant could have already intended,

in advance of the quid pro quo arrangement,

to take

all

the official actions he would take on behalf of SOM throughout the approximately three year duration of the scheme. For example, by alleging that Bryant wrote specific language crafted by Gallagher into the state budget, the Indictment clearly implies that Bryant’s course of conduct was affected by the bargain he had struck with Gallagher. Even if Bryant had a strong proclivity to take favorable action in favor of SOM prior to the commencement of the alleged scheme, the Indictment’s allegation of an “exchange” indicates that any pre-existing inclination on Bryant’s part was affected by the agreement, resulting in a change of conduct. In sum, only a strained reading of the Indictment could suggest that (1) Bryant agreed to exchange official actions for his SOM salary and (2) Bryant would have taken every single official act enumerated in the Indictment even absent that agreement. Thus, Defendants’ argument that “the government has alleged no facts” to support the proposition that Bryant “deviated from his usual position of supporting South Jersey institutions,” Defendants’ Reply Brief, 9, fails on its own terms.

More importantly, the Indictment need not allege that Bryant ultimately took some official actions that he would not have otherwise taken. That is not the legal standard for

quid pro quo

bribery under § 1346. To prove

quid pro quo

bribery under

Kemp ,

the Government does not need to allege and prove that Bryant took actions that he otherwise would not have taken. Instead, the Indictment must allege, and the Government must prove, that Bryant engaged in a

quid pro quo

exchange with Gallagher, whereby Bryant exercised his official discretion with “a specific intent to ... receive something of value in exchange for ... official act[s].”

Kemp,

500 F.3d at 281 (citation omitted).

Defendants’ argument that a further allegation is required proceeds on an incorrect premise: that unless, as a result of a bribe, an official takes actions

that he otherwise would not have taken,

the official was not influenced by the bribe. But an official can have the intent to be influenced by a bribe, i.e., the “intent to make good on the bargain,”

United States v. Ford,

435 F.3d 204, 213 (2nd Cir.2006), even if, ultimately, the official ends up taking

the same action

he would likely have taken if he were not bribed.

See United States v. Quinn,

359 F.3d 666, 675 (4th Cir.2004) (with respect to a conviction for bribery under 18 U.S.C. § 201 (b), “it does not matter whether the government official would have to change his or her conduct to satisfy the payor’s expectations”); American Criminal Law Review, 834 (Spring 2008) (“Significantly, a payment or promise need not alter a public official’s actual course of conduct, as long as the parties to the transaction possessed corrupt intent”) (citing

Quinn ,

F.3d at 675); cf. 4 Wharton’s Criminal Law, § 646 (2007) (“To constitute bribery, there must be a corrupt intent, i.e... from the standpoint of the bribee, an intent to use his public office as a means of acquiring an unlawful benefit”).

When an official makes a

quid pro quo

bribery agreement, explicitly or implicitly, he ceases making decisions according to his best judgment as a legislator on behalf of all the citizens he serves, and allows the payor to place a thumb on the scale of his decision-making process. When a legislator has a “specific intent to ... receive something of value

in exchange

for ... official act[s],”

Kemp,

500 F.3d at 281 (citation omitted), in addition to whatever considerations he would have brought to bear regarding the merits of such official acts, he also has a corrupt consideration, the

*393

bribe. Thus, even if the official actions he ultimately takes in favor of the payor are unchanged, the legislator’s decision-making process is still influenced. The exercise of a legislator’s discretion in unremitting favor of a constituent in the future, even if likely, cannot be certain in light of the competing concerns of the general citizenry and changing, as well as unforeseen, circumstances. Thus, an allegation that a legislator “exchanged” official actions for a bribe necessarily means that the bribe had some influence on that discretion — even if, as things turned out, the official’s actions were the same as they would have been absent the bribe. This is because the “exchange” removes discretion from the legislator — which he is obligated to exercise in the best interests of the public — and instead locks him into a position favoring one constituent, as dictated by the

quid pro quo

arrangement.

Moreover, a legislator who makes an implicit or explicit agreement to exchange official acts for a payment or benefit clearly has a corrupt intent. The existence of an agreement to exchange official actions for a payment or benefit means that the legislator is aware that the payor intends to influence his official action through the bribe and, by agreeing to the “exchange,” confirms to the payor that he will be influenced. Thus, even if his course of conduct remains the same as it would have absent the agreement, the legislator has the corrupt intent to deliver on his end of the bargain, and confirm the payor’s expectations.

See Ford,

435 F.3d at 213 (“The recipient’s ‘awareness’ that the donor gave something of value for the purpose of influencing the recipient might well constitute strong circumstantial evidence that the recipient acted with the requisite culpable state of mind in accepting the item, but a jury should be clearly instructed that it is

the recipient’s intent to make good on the bargain,

not simply her awareness of the donor’s intent that is essential to establishing guilt under [the bribery prong of] Section 666”) (emphasis added).

Defendants support their interpretation of the “exchange” required by

Kemp

— that a

quo

must be action that an official would not have otherwise taken — with two further arguments. First, Defendants point out that the loans that constituted the

quid

Kemp

were not otherwise available. The court stated that a jury could have found that the “loans were made available to Kemp only because he was the treasurer.”

Kemp,

500 F.3d at 285 . Second, Defendants argue that, unless their interpretation of an “exchange” is adopted, the distinction between a gratuity and a bribe collapses.

For the reasons explained above,

see supra

at II.B.2.b., the Third Circuit’s description of the loans in

Kemp

was not meant to impose a requirement that an official must take actions that he otherwise would not have taken to be convicted under the

quid pro quo

bribery theory. First, the court simply did not say that. To the contrary, when discussing the sufficiency of the evidence of the

quo,

the court found that “accepting money in exchange for an official action is a form of honest services fraud.”

Kemp,

500 F.3d at 280 . In describing Kemp’s official actions, which the court found sufficient for honest services fraud, the court stated:

The government presented evidence that Kemp and Anderson had an

arrangement

where Anderson would locate owners of unredeemed city bonds and attempt to help them cash their bonds. This project required Kemp to exercise

*394

his authority as treasurer: he provided Anderson with a list of holders of outstanding bonds and a form letter for her to use; also, the treasurer’s office was responsible for contacting the banks to facilitate the ultimate repayment. When Anderson was asked at trial what Kemp would contribute to the business to earn his share of its proceeds, she identified only these first two official actions.

A reasonable jury certainly could have concluded that Kemp was paid for the reasons that Anderson pinpointed-taking official action that aided the business.

Id.

at 279 (emphasis added). Thus, when assessing the sufficiency of the evidence of

quid pro quo

bribery in the context of honest services fraud, the court found it sufficient that the there was an “arrangement” whereby “Kemp was paid for ... taking official action” that aided the pay- or’s business. The Third Circuit did not require evidence that

Kemp

would not have taken the official actions at issue if not for the payment.

Second, the relevance of the court’s finding that a jury could find that the loans were otherwise unavailable was that, as a legal matter, “a loan to a public official ... that would have otherwise been unavailable to that official or available at a higher interest rate may constitute a bribe.”

Id.

at 285 . The issue was whether the loan was a thing of value sufficient to constitute a bribe:

Our conclusion that a loan may constitute the

quid

in a bribery prosecution is also supported by the relevant caselaw. Most notably, in

United States v. Gor-man,

807 F.2d 1299 (6th Cir.1986), the defendant argued that a loan was not a “thing of value” under § 201 because he fully repaid the loan with interest.

Id.

at 1304. The Sixth Circuit rejected that argument, because at the time that the defendant received the loan he was having “severe financial difficulties” and it was unclear whether such a loan would have been available to him in the ordinary course of business.

Id.

at 1305. The court focused on the value that the recipient “subjectively attaehe[d] to the items received.”

Id.

A loan was also recognized as a potential

quid

United States v. Williams,

705 F.2d 603 (2d Cir.1983). There, a United States Senator was convicted under the federal bribery statute for “seeking funds for the financing and purchase of a mining venture in which he had an interest in exchange for his assistance in obtaining government contracts for the venture.”

Id.

at 612 . One of the two sorts of funds that the senator sought was a $100 million loan that was to be repaid with interest.

Id.

at 620 . The court never questioned that the loan could serve as a bribe, and termed the evidence against the senator “overwhelming.”

Id.

at 612 ;

see also United States v. Markus,

721 F.2d 442, 444 (3d Cir.1983) — were sufficient to alert Hoick and Umbrell that the government planned to pursue both theories. The indictment refers to “the benefits that HOLCK and UMBRELL extended to Kemp with the intent to influence KEMP’s official actions” (App. at 491), and charges that “defendants GLENN K. HOLCK and STEPHEN M. UMBRELL, on behalf of their employer, Commerce Bank,

provided benefits to Kemp in the form of otherwise unavailable loans in exchange for favorable decisions by KEMP as Treasurer of Philadelphia

” (App. at 554).

These allegations were sufficient to charge Hoick and Umbrell with honest services fraud under a bribery theory,

and accordingly, we reject Hoick and Umbrell’s argument that the indictment should have been dismissed.

Id.

at 280-81 (emphasis added). Thus, the Third Circuit found the indictment to be sufficient without referring to

any

allegation that the defendants violated a state law predicate. Moreover, prior to its analysis of the indictment’s allegations, the court had just explained that “[w]e deem an indictment sufficient so long as it ...

contains the elements of the offense intended to be charged.” Id.

at 280 (emphasis added). The allegation that the defendants intended to give a public official “benefits ... in exchange for favorable decisions,”

Id.

at 281, contained the elements of the bribery theory of honest services fraud and no more was required.

The recent decision in

United States v. Flemming,

223 Fed.Appx. 117 (3d Cir.2007), confirms the proposition that the

quid pro quo

bribery prong of honest services does not require the Government to allege or prove the violation of a state law. The court held that there was sufficient evidence to support a conviction for honest services fraud where the defendant, the owner of company that had a contract with the Virgin Islands Housing Authority (“VIHA”), bribed a VIHA procurement officer to expedite payments: “the jury could logically infer that Flemming and the [procurement officer] intended to work together to achieve the common goal of defrauding the VIHA by expediting payments to Flemming’s company ahead of payments to other vendors.”

Flemming,

223 Fed.Appx. at 121 . After stating that “honest services fraud typically occurs ... where a legislator was paid for a particular decision or action,”

Id.

at 122 (quotations omitted), the court explained what was required to meet that standard:

As described above, a reasonable jury could infer from the established facts and circumstantial evidence that Flem-ming and John knowingly and willfully

*399

participated in a scheme to expedite VIHA payments to Flemming’s company. The jury could also logically conclude that the money Flemming paid John was intended to influence John in this regard, thereby depriving the citizens of the Virgin Islands of the honest services of a VIHA employee. The government also elicited testimony establishing that the checks were processed in interstate commerce through electronic wires.

Id.

at 122-123 . Thus, evidence that the defendant intended to influence a procurement officer with payments was sufficient for a finding that he “deprivfed] the citizens of the Virgin Islands of the honest services of the VIHA employee,” in violation of §§ 1343 and 1346.

Id.

In the context of

quid pro quo

bribery, then, the Third Circuit did not require a violation of a local law for a conviction under § 1346. Hence, the Government need not allege or prove a state law violation to sustain a conviction under the

quid pro quo

bribery theory of honest services fraud.

c. The Duty to Provide Honest Services As Distinguished from Duties that Constitute Honest Services

Kemp

does reference a state law predicate in connection with the

quid pro quo

bribery theory of honest services fraud, albeit in another context. When discussing the sufficiency of the evidence with respect to the conviction of the defendant public official for honest services fraud under the bribery theory, the court stated:

We have repeatedly recognized that accepting money in exchange for an official action is a form of honest services fraud.

See United States v. Panarella,

277 F.3d 678, 690 (3d Cir.2002);

Antico,

275 F.3d at 262-63 . As Pennsylvania law provides, “public office is a public trust and ... any effort to realize personal financial gain through public office other than compensation provided by law is a violation of that trust.” 65 Pa. Cons.Stat. § 1101.1. Here, the government presented sufficient evidence for a reasonable jury to find beyond a reasonable doubt that Kemp violated that trust by soliciting and accepting payment in exchange for taking official action. Accordingly, we find no plain error and reject Kemp’s challenge to his mail fraud convictions.

Kemp,

500 F.3d at 280 . If

Kemp’s

holding, as I have discussed, is that the indictment sufficiently alleged the bribery theory of honest serves fraud absent an allegation that any state law was violated, then it may be asked why the Third Circuit pointed to Pennsylvania law for its finding that the the public official violated the “public trust” of his public office. The answer to that question requires a focus on an important distinction drawn by the Third Circuit between two prongs of the analysis of a “state law predicate”: (1) whether a defendant has a fiduciary

relationship

such that he owes a duty of honest services to the public; and (2) whether a defendant’s conduct violated a type of state law duty that falls within the meaning of “honest services,” as defined in § 1346, and is therefore sufficient to constitute honest services fraud. The Third Circuit’s analysis in

Murphy

compels this analytical distinction. In

Murphy ,

the county chairman of a political

*400

party was convicted of honest services fraud under the failure to disclose theory, but the Third Circuit reversed the conviction for lack of an adequate fiduciary

relationship

between the party chairman and the citizens of New Jersey.

In other words, there was no basis to hold that the defendant owed a duty of honest services to the public.

Murphy,

323 F.3d at 116 .

The government argued that Murphy’s conduct violated the New Jersey Bribery Act, N.J.S.A. 2C:27-2, and therefore that he had violated a sufficient state law duty to warrant a conviction for honest services fraud. But the Third Circuit found that, even though the bribery statute applied to the defendant’s conduct, the bribery statute could not itself create the requisite fiduciary relationship between the defendant and the public:

While the Government is correct in noting that N.J.S.A. 2C-27-2 applies to party officers as well as public officials, it cannot point to anything in the statute that creates a fiduciary duty on the part of party officials to disclose information to the government ... Moreover, while bribery may often accompany breaches of a duty to disclose,

see Panarella,

277 F.3d at 695 , and may even be the paradigm ease of honest services fraud committed by public officials,

see United States v. deVegter,

198 F.3d 1324, 1327 (11th Cir.1999),

the Government points to no case that found that a bribery statute can create an obligation to provide honest services without any preexisting legal duty.

Id.

at 115 (emphasis added). Thus, being the chairman of a political party was insufficient to establish a sufficient fiduciary relationship with the public to give rise to a duty of honest services, a prerequisite for applying § 1346 to a scheme to defraud the public of the defendant’s honest services.

The court’s analysis in

Murphy

clearly distinguishes between the fiduciary relationship necessary for a defendant to

owe

honest services to the public, and the kind of state law violations that can constitute

deprivations of the honest services

that are owed by a defendant. The court carefully drew the distinction in the following passage:

This final point is the crux of the issue and it presents a slightly different question from that which we addressed in

Antico

and

Panarella .

In those cases we assumed, based on extensive pre-

McNally

case law, that public officials have a duty to provide honest services to the public[, i.e., the requisite fiduciary relationship with the public necessary to owe honest services under § 1346.] We then looked to state law to ascertain what standards of fiduciary care the public officials were required to meet in order to determine whether the officials defrauded the citizens of their right to honest services!, i.e., which state law violations can constitute fraudulent deprivations of honest services, assuming the defendant owes a duty of honest services.] For example, in

Antico ,

we referred generally to state and local con

*401

flict of interest laws to identify what fiduciary duties the defendant owed to the public. 275 F.3d at 264 . And, in

Panarella ,

we found “that the clarity of [the state’s] disclosure statute criminalizing a public official’s nondisclosure of his sources of income addresses rule of lenity concerns ... more effectively than does [a general prohibition against] ‘misuse of office for personal gain.’ ” 277 F.3d at 693 .

Id.

at 115-16. The court explained that while

Antico

and

Panarella

addressed the question of whether a defendant defrauded the public of his honest services, “[t]hese cases do not however, answer the question of whether the New Jersey Bribery Act alone can create a fiduciary

relationship

that could then serve as the predicate for determining that Murphy himself

owed

honest services to Passaic County and its citizens.”

Id.

at 116 (emphasis in original).

Again, drawing the distinction between a fiduciary relationship whereby a defendant owes a duty of honest services, and what types of state law duties constitute the honest services of which a defendant may defraud the public in violation § 1346, the court stated:

Murphy urges us to address the issue we reserved in a footnote in

Panarella :

Whether a violation of a state-law created fiduciary duty is

required

to sustain an honest services fraud conviction. Although federalism concerns are paramount in federal prosecutions of local political party officials, we do not think that this case requires us to resolve that question. This is because

Panarella

and

Antico

address the different issue of what

types oí

fiduciary duties are required, within the meaning of honest services, [i.e., the type of state law duties that constitute the honest services owed,] when either state or federal law already clearly establishes a fiduciary relationship [, i.e., the requisite fiduciary relationship to the public.] Here, in contrast, the Government cannot identify any clearly established fiduciary relationship or legal duty in either federal or state law between Murphy and Passaic County or its citizens. In other words, it cannot point to an established “right” of honest services that Murphy owed to the County or its citizens beyond a criminal statute, which we do not believe can create a fiduciary relationship.

Id.

at 117 (internal citation omitted) (emphasis in original). In sum,

Murphy

holds that honest services fraud requires a fiduciary relationship to the public, but did not reach the separate issue of whether a state law violation is required for an honest services fraud conviction. In other words,

Murphy

is consistent with the proposition that the “types of fiduciary duties” that must be breached for an honest services conviction may include duties flowing from § 1346 itself, rather than state law.

Once the fiduciary relationship that triggers the obligation to provide honest services within the meaning of § 1346 is distinguished from what actions constitute breaches of that fiduciary relationship, so as to violate the duty to provide honest services, it becomes clear why

Kemp

referenced state law. The court prefaced its

*402

discussion of the sufficiency of the evidence needed for a conviction under the bribery theory with a footnote indicating that “Kemp does not dispute that as treasurer, he was a public official who owed a duty to provide honest services to the public,”

Kemp,

500 F.3d at 279 , n. 11 (citing Pa Cons.Stat. § 1102;

Antico,

275 F.3d at 262 n. 18), thereby recognizing that the defendant’s fiduciary relationship with the public was a prerequisite to finding that he defrauded the public of honest services in violation of §§ 1341 and 1346. The court’s subsequent reference to the “public trust” (imposed on public officials by Pennsylvania law) made clear that a reasonable jury could conclude that the defendant breached that fiduciary relationship by engaging in a

quid pro quo

bribery scheme. In other words, the court confirmed that the defendant, who owed the public a duty of honest services as a matter of Pennsylvania law, had defrauded the public of his honest services by “accepting money in exchange for an official action.”

Kemp,

500 F.3d at 279 (citations omitted). Thus,

Kemp’s

reference to Pennsylvania law merely related to the existence of a fiduciary relationship to the public, and did not require state law to set forth a specific standard of “honest services” that was owed and fraudulently breached. With respect to the

quid pro quo

bribery theory of honest services, that standard is derived from §§ 1341, 1343 and 1346 as a matter of statutory interpretation, not state law.

The distinction drawn above is unavoidable when one recognizes that

Kemp

did not find a violation of any specific Pennsylvania law. Indeed, the court referred to 65 Pa. Cons.Stat. § 1101.1, the legislative “declaration” of purpose that prefaces Pennsylvania’s Public Official and Employee Ethics Act: “[t]he Legislature hereby declares that public office is a public trust and that any effort to realize personal financial gain through public office other than compensation provided by law is a violation of that trust.” 65 Pa. Const. Stat. § 1101.1. Next, the court found that a reasonable jury could find beyond a reasonable doubt that “Kemp violated that trust” by engaging in

quid pro quo

bribery, i.e., “soliciting and accepting payment in exchange for taking official action.”

Kemp,

500 F.3d at 280 . The court did

not

state that the defendant’s conduct violated 65 Pa. Cons.Stat. § 1103(c), the section of the Ethics Act that specifically prohibits the accepting of bribes by a public official: “Accepting improper influence. — No public official ... shall solicit or accept anything of monetary value ... based on any understanding of that public official ... that the ... official action or judgment of the public official ... would be influenced thereby.” 65 Pa. Cons.Stat. § 1103(c). If the

quid pro quo

bribery theory of honest services fraud requires the violation of a specific state law, surely the court would have mentioned 65 Pa. Cons.Stat. § 1103(c). Instead, the court referred to 65 Pa. Cons.Stat. § 1101.1, the legislative “declaration,” because the court was pointing out the defendant’s fiduciary relationship with the public. Thus, state law was cited to confirm that the defendant owed a duty of honest services, while

quid pro quo

bribery was the means by which the defendant violated that duty. If anything, the manner in which

Kemp

references Pennsylvania law supports the proposition that the

quid pro quo

bribery theory of honest services fraud does not require that the Government prove the violation of a state law.

Once it is established that a public

*403

official has a fiduciary relationship with the public (and state law may be relevant to that determination), the Government need only prove “that there was a

quid, pro quo,

... that the benefit was offered in exchange for the official act,”

Kemp,

500 F.3d at 281 (quotations omitted), for an honest services fraud conviction under the bribery theory of §§ 1341, 1343 and 1346.

d. The Indictment Adequately Alleges that Bryant Owed a Duty of Honest Services

The Indictment alleges that Bryant had a fiduciary relationship with the citizens of New Jersey such that he owed the public a duty of honest services. Indictment, Counts 1-6, ¶ 16 (“At all times relevant to this Indictment, the State of New Jersey and its citizens had an intangible right to the honest services of their State Senators”). Third Circuit case law demonstrates that the Indictment’s assertion is correct: “In

[.Antico

and

Panarella

] we assumed, based on extensive

pre-McNally

case law, that public officials have a duty to provide honest services to the public.”

Murphy,

323 F.3d at 116 . Unlike the county political chairman in

Murphy ,

Bryant, a State Senator, was a public official at all times relevant to the Indictment, and the Third Circuit case law has “assumed ... that public officials have a duty to provide honest services to the public.”

Id.; see also United States v. Silvano,

812 F.2d 754, 759 (1st Cir.1987) (interpreting the mail fraud statute to include “schemes to defraud citizens of their ‘intangible rights to honest and impartial government’ ... is premised upon an underlying theory that a public official acts as ‘trustee for the citizens and the State ... and thus owes the normal fiduciary duties of a trustee, e.g., honesty and loyalty’ to them”) (citations omitted). Indeed, in

Murphy

the court recognized that “the anchor of a fiduciary relationship” could be “established by

state or federal law.” Murphy,

323 F.3d at 105 (emphasis added).

Moreover, the statement of legislative findings proceeding the New Jersey Conflicts of Interest Laws declares that public office in New Jersey is a public trust: The Legislature finds and declares:

(a) In our representative form of government, it is essential that the conduct of public officials and employees shall hold the respect and confidence of the people.

Public officials must, therefore, avoid conduct which is in violation of their public trust

or which creates a justifiable impression among the public that such trust is being violated.

N.J.S.A. 52:13D-12 (emphasis added). Just as Pennsylvania law declares that “public office is a public trust,” 65 Pa. Cons.Stat. § 1101.1, and

Kemp

held that the defendant public official “violated that trust by soliciting and accepting payment in exchange for taking official action,”

Kemp,

500 F.3d at 280 , the Indictment in the case at bar sufficiently alleges that Bryant’s public office was a “public trust,” N.J.S.A. 52:13D-12, which could similarly be breached through a

quid pro quo

bribery scheme.

Bryant’s fiduciary relationship to the public is also clear as a matter of New Jersey common law. As the New Jersey Supreme Court stated in

Driscoll v. Burlington-Bristol Bridge Co., 8

N.J. 433, 86 A.2d 201 (1952): “The members of the board of chosen freeholders and of the bridge commission are public officers holding positions of public trust. They stand in a fiduciary relationship to the people whom they have been elected or appointed to serve.”

Id.

at 474 , 86 A.2d 201 (citations omitted). Since Bryant was a New Jersey state senator during the time period of the allegations in the Indictment, there can be no serious dispute that Bryant had the requisite fiduciary relationship with the public of New Jersey.

*404

e.The Role of the Specific Duties Listed in Paragraph 16 of the Indictment

The specific duties listed in paragraph 16 of the Indictment — including duties stemming from the New Jersey Bribery Act, N.J.S.A. § 2C:27-2, New Jersey Conflicts of Interest Law, N.J.S.A. § 52: 13D-14, and a duty to disclose (presumably derived from New Jersey common law or the Third Circuit’s interpretation of § 1346 in

Antico

and

Panarella

)

— are illustrative of Bryant’s fiduciary relationship with the New Jersey public. Likely, this is what the Government means by its assertion that “those statutes are cited to give contour to what Senator Bryant’s fiduciary duty is.” Oral Argument, 84. In other words, the specific duties are listed to support the Indictiment’s assertion that Bryant owed a duty of honest services to the citizens of New Jersey.

However, these duties, and the elements needed to establish their violation, do

not

draw the line that Bryant and Gallagher allegedly crossed when they engaged in “a scheme and artifice to defraud the State of New Jersey and its citizens of the right to defendant WAYNE R. BRYANT’s honest services in the affairs of the State of New Jersey.” Indictment, Counts 1-6, ¶ 17. That line is drawn by §§ 1341, 1343, and 1346, which, as interpreted by Third Circuit cases going back to

Antico ,

make clear that

quid pro quo

bribery by a public official constitutes honest services fraud. The Third Circuit has “repeatedly recognized that accepting money in exchange for an official action is a form of honest services fraud,”

Kemp,

500 F.3d at 280 , and has indicated that the “key to whether a gift constitutes a bribe is whether the parties intended for the benefit to be made in exchange for some official action.”

Id.

at 282 . The point of the duties listed in paragraph 16 of the Indictment, then, is to support the Indictment’s assertion that “the State of New Jersey and its citizens had an intangible right to the honest services of their Senators,” Indictment, Counts 1-6, ¶ 16, thereby triggering the application of § 1346.

See Murphy,

323 F.3d at 116 (conviction reversed for want of “a fiduciary relationship that could then serve as the predicate for determining that Murphy himself owed honest services to Passaic County and its citizens”).

f. The Indictment Sufficiently Alleges that Bryant and Gallagher Defrauded New Jersey of Bryant’s Honest Services

After alleging that Bryant had a fiduciary relationship with the citizens of New Jersey, and therefore owed a duty of honest services, the Indictment adequately alleges that Bryant and Gallagher defrauded the public of Bryant’s honest services through a

quid pro quo

bribery scheme.

See supra

at II.B.2.

g. Third Circuit Precedent does not Require a State Law Violation in the Context of the

Quid Pro Quo

Bribery Theory

The above analysis notwithstanding, Defendants contend that Third Circuit cases endorsing a “state law as a limiting principle,”

Panarella,

277 F.3d at 693 ;

Murphy,

323 F.3d at 116 , in honest services fraud cases

imply

that the bribery theory of honest services fraud requires not just a fiduciary obligation of honest services to the public, but also an

independent

violation of a state law.

Bryant’s Brief, 8-9;

*405

Gallagher’s Brief 11-12; Defendants’ Reply Brief, 15-21. This overstates the holdings of the pertinent case law.

At the outset, it must be emphasized that

Kemp

and

Flemming

are the only Third Circuit case cited by the parties that, in addition to referencing the bribery theory, actually apply it. That the Third Circuit upheld the sufficiency of an indictment’s allegation of the bribery theory in

Kemp ,

and found sufficient evidence to uphold a conviction based on that theory in both

Kemp

and

Flemming ,

without requiring a violation of specific state law, is telling.

See supra

at II.B.3.b.

None of the recent Third Circuit cases dealing with honest services fraud impose a requirement that the government allege and prove a state law violation in the context of the

quid pro quo

bribery theory. Both

Antico

and

Panarella

involved the failure to disclose theory of honest services fraud, rather than the bribery theory.

Antico,

275 F.3d at 262

;

Panarella,

277 F.3d at 690-91 (“there is no allegation that Loeper sold his vote to Panarella or that Loeper’s financial relationship with Panar-ella influenced Loeper’s decision to speak and vote against the proposed legislation”). Moreover,

Panarella

highlighted its limited holding: “we emphasize the narrowness of our holding. First, Loeper’s nondisclosure was in clear violation of Pennsylvania criminal law. The existence of this violation of state law resolves federalism and vagueness concerns that might otherwise arise in cases such as this.”

Panarella,

277 F.3d at 698-99 (emphasis added). The court made clear that the “narrowness” of the holding extended to its reference to the violation of a state criminal law: “Although we hold that the existence of a violation of state law, coupled with the other facts discussed above, is

sufficient

to establish honest services wire fraud in this case, we need not decide whether a violation of state law is

necessary

for nondisclosure of a conflict of interest to amount to honest services fraud.”

Id.

at 699 n. 9 (emphasis in original). Moreover, footnote nine emphasizes that the court was concerned with the “nondisclosure of a conflict of interest” theory of honest services fraud, not the bribery theory.

Murphy ,

the court did not have occasion to apply either the bribery or failure to disclose theory because the “right to honest services” at issue was not founded on a fiduciary relationship to the public: “Without the anchor of a fiduciary relationship established by state or federal law, it was improper for the District Court to create one.”

Murphy,

323 F.3d at 104 . As such, the court had no need to address the issue left open by

Panarella ,

“[w]hether the violation of a state-law created fiduciary duty is

required

to sustain an honest services fraud conviction.”

Id.

at 117 (emphasis in original). Thus,

Murphy

does not require a “violation of state-law created fiduciary duty,”

Id.,

to establish the

quid pro quo

bribery theory of honest services fraud, where, as in the case at bar, the fiduciary relationship between Bryant and the public is obvious.

Finally,

United States v. Gordon,

183 Fed.Appx. 202 (3d Cir.2006), addressed the role of state law in honest services fraud cases:

Thus, although a violation of a state criminal law may be sufficient to lay the

*406

foundation for honest services fraud, it is clear from our analysis of the requisite fiduciary duty that honest services fraud does not require a violation of

criminal

law, but rather a violation of a state-created fiduciary duty. At the very least, the government must allege a violation of some law — or a recognized fiduciary duty — to adequately charge honest services fraud. Once again, we are here not required to delineate the parameters of the standard beyond this holding because here the government has alleged that Freebery and Gordon violated Delaware laws.

Gordon,

183 Fed.Appx. at 211 (emphasis in original). However, this holding does not alter the analysis here because

Gordon

involved the failure to disclose theory of honest services fraud, not the

quid pro quo

bribery theory.

Id.

at 211, 214 (omitting reference to the bribery theory and stating only that “[hjonest services fraud may be found where a public official fails to disclose a conflict of interest in violation of law,” and finding that “the indictment clearly alleges that Freebery had a conflict of interest that should have been disclosed”) (citations omitted). Further, because the government alleged that the defendants violated state laws, the court’s discussion of whether any such violation is required under the failure to disclose theory was dicta. To the extent that

Gordon’s

statement, that “honest services fraud does not require a violation of

criminal law,

but rather a violation of a state-created fiduciary duty,” implies that the bribery theory requires the violation of a state law, that implication is contradicted by

Flem-ming

and

Kemp ,

which were decided after

Gordon

and actually applied the

quid pro quo

bribery theory. Moreover,

Antico, Panarella,

and

Kemp

make clear that, pursuant to § 1346, as an official in a fiduciary relationship with the public, Bryant had a “recognized fiduciary duty,”

Id.

at 211, not to engage in a

quid pro quo

bribery scheme with Gallagher.

Gordon

also noted that, in

Murphy ,

the Third Circuit “endorsed” the reasoning of the Fifth Circuit, which has required that the government prove an independent violation of state law in honest services fraud cases:

In deciding

Murphy ,

we also endorsed the reasoning of the Court of Appeals of the Fifth Circuit in

United States v. Brumley,

116 F.3d 728 (5th Cir.1997). There the court interpreted § 1346 as requiring a state law limiting principle for honest services fraud.

Murphy,

323 F.3d at 116 & n. 5. The court in

Brum-ley

stated that an official who does all that is required under state law but who is alleged to have not discharged his or her duties “honestly” cannot be convicted of honest services fraud.

Brumley,

116 F.3d at 734 . Rather, § 1346 “contemplates that there must first be breach of a state-owed duty.”

Id.

at 211 n. 6. Again, the Third Circuit’s analysis in

Murphy

dealt with the requisite fiduciary relationship required for honest services fraud, and neither

Murphy

nor

Gordon

dealt with the bribery theory of honest services fraud. Accordingly, the contention that

Gordon ,

by endorsing

Brumley ,

implies that honest services fraud

in general

requires an independent state law violation, cannot be squared with the Third Circuit’s subsequent analyses and application of the law of honest services fraud in

Flemming

and

Kemp .

In sum, none of the Third Circuit cases relied on by Defendants specifically address the role of state law in the context of the bribery theory of honest services fraud except for

Flemming

and

Kemp ,

which support the proposition that, given the requisite fiduciary relationship to the public, the bribery prong of honest services

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fraud does not require a violation of an independent state law.

h. Constitutional Concerns do not Require a State Law Violation in the Context of the Bribery Theory of Honest Services Fraud

Relying on

Antico, Panarella

and

Murphy

(none of which dealt with the bribery theory of honest services fraud), Defendants insist that the interpretation of § 1346 in a

quid pro quo

bribery case must take into account serious constitutional concerns regarding fair notice, federalism, legislative independence, and the preservation of adequate breathing room in the sphere of protected political activity. Defendants further argue that due respect for these constitutional values requires that the Government allege and prove a violation of an independent state law to sustain an honest services fraud conviction under the

quid pro quo

bribery theory of § 1346. Bryant’s Brief, 8-9; Gallagher’s Brief, 11-12.

Panarella

states, “rule of lenity concerns are particularly weighty in the context of prosecutions of political officials, since such prosecutions may chill constitutionally protected political activity.”

Pa-narella,

277 F.3d at 698 . However, “the canon of strict construction of criminal statutes, or rule of lenity, ensures fair warning by so resolving ambiguity in a criminal statute as to apply it only to conduct clearly covered.”

United States v. Lanier,

520 U.S. 259, 266 , 117 S.Ct. 1219 , 137 L.Ed.2d 432 (1997) (citations omitted). Since

Antico ,

there is has been no ambiguity in this Circuit as to whether § 1346 prohibits

quid pro quo

bribery involving a public official, which is the conduct alleged in the case at bar. In any event, extending § 1346 to instances of

quid pro quo

bribery by local public officials, as in

Kemp ,

poses no risk of chilling “constitutionally protected political activity.”

Pa-narella,

277 F.3d at 698 .

Defendants also argue that fair notice concerns, which the Third Circuit has recognized as pertinent to the interpretation of § 1346, require the Government to allege and prove a state law violation under that statute. In

Panarella ,

the Third Circuit explained why notice concerns shape the proper interpretation of § 1346:

Deprivation of honest services is perforce an imprecise standard ... Moreover, decisions of our own Court stating that “fraud is a broad concept that ‘is measured in a particular case by determining whether the scheme demonstrated a departure from fundamental honesty, moral uprightness, or fair play and candid dealings in the general life of the community,’ ”

United States v. Monos-tra,

125 F.3d 183, 186 (3d Cir.1997) (quoting

United States v. Goldblatt,

813 F.2d 619, 624 (3d Cir.1987)), do little to allay fears that the federal fraud statutes give inadequate notice of criminality and delegate to the judiciary imper-missibly broad authority to delineate the contours of criminal liability.

We believe that the policies underlying the rule of lenity are not implicated in this case, however, because Loeper’s deliberate concealment of his income from Panarella clearly violated a Pennsylvania criminal statute, 65 Pa.C.S.A. §§ 1104(a), 1105

1109(b).

Id.

Thus, at oral argument, when confronted with the suggestion that

quid pro quo

bribery is at the core of what it means to engage in “a scheme or artifice to deprive another of the intangible right of honest services,” 18 U.S.C. § 1346 , Defendants argued that the Government must prove a violation of a specific state law because “nobody knows what honest services fraud means in the air.” Oral Argument, 68. Further, Defendants argued that “everybody knows I suppose analysis of bribery”

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will not do, and that “the question is whether or not the particular statute with which the defendant is charged actually gives notice.”

Id.

at 73-74 .

But the Government does not merely assert that it is intuitively obvious that

quid pro quo

bribery is a federal crime. Given that

Antico, Panarella

and

Kemp ,

interpreting the language of § 1346, have held that “accepting money in exchange for an official action is a form of honest services fraud,”

Kemp,

500 F.3d at 280 , it is obvious that § 1346 prohibits

quid pro quo

bribery. Thus, that the

quid pro quo

bribery theory is at the “core” of honest services fraud,

Murphy,

323 F.3d at 115 (“bribery ... may even be the paradigm case of honest services fraud committed by public officials”), is not a matter of common sense, or a matter of judge-made criminal common law, but rather, it is a matter of clearly established statutory interpretation in the Third Circuit. Indeed, the Supreme Court has stated with respect to constitutional notice concerns, that “clarity at the requisite level may be supplied by

judicial gloss

on an otherwise uncertain statute.”

Lanier,

520 U.S. at 266 , 117 S.Ct. 1219 (emphasis added). Further, that “bribery ... may even be the paradigm case of honest services fraud committed by public officials,”

Murphy,

323 F.3d at 115 , should “allay fears that the federal fraud statutes ... delegate to the judiciary impermissibly broad authority to delineate the contours of criminal liability.”

Panarella,

277 F.3d at 698 . Moreover, to the extent that §§ 1341 and 1343 were applied to bribery in pre-

McNally

case law,

see United States v. Mandel,

591 F.2d 1347, 1362 (4th Cir.1979) (“As to whether a scheme involving the bribery of a public official satisfies the fraud element of the mail fraud statute, the question has long since been answered in the affirmative”), and it was the intent of § 1346 to restore the

pre-McNally

interpretation

of §§ 1341

and 1343,

Antico,

275 F.3d at 262 n. 16 (“commentary and judicial reflection indicate that the statute was enacted to overturn

McNally

and restore the evolution of mail and wire fraud to its

pre-McNally

status”), Congress intended to criminalize

quid pro quo

bribery schemes through § 1346. Thus, constitutional concerns regarding fair notice do not require the Indictment to allege, or the Government to prove, an independent state law violation under the bribery theory of honest services fraud.

Defendants next argue that federalism concerns informing the interpretation of § 1346 require a state law violation even under the bribery theory of honest services fraud. In

Panarella ,

the Third Circuit explained that “the existence of a violation of state law in this case mitigates the federalism concerns that arise from federal prosecutions of local public officials.”

Panarella,

277 F.3d at 693 . Further, the court noted that “[i]n this case, the intrusion into state autonomy is significantly muted, since the conduct that amounts to honest services fraud is conduct that the state itself has chosen to criminalize.”

Id.

at 694 (citation omitted). But

Panarella

was not a

quid pro quo

bribery case. Additionally, the court made clear that federalism concerns are not

always

an issue in honest services fraud cases: “In our view, use of state law as a limiting principle defining the scope of honest services fraud

in close cases

better addresses these federalism concerns than does the limiting principle of misuse of office for personal gain.”

Id.

at 693-94 (emphasis added). Assuming the allegations in the Indictment to be true, this is not a “close case.” The allegations of the Indictment fall squarely within the bribery theory of honest services fraud as set forth in

Kemp ,

and thus, it is difficult to see

why

state autonomy is threatened by the criminalization of

quid pro quo

bribery schemes by public officials under § 1346. In any

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event,

Kemp

and

Flemming

did not indicate that § 1346 requires the violation of an independent state or local law under the bribery theory of honest services fraud, and thereby implicitly reject the notion that federalism concerns require otherwise.

Thus, if a defendant has a sufficient fiduciary relationship with the public, constitutional concerns involving fair notice, federalism, and breathing room in the political sphere of the state legislature do not support Defendants’ claim that the bribery theory of honest services requires the Government to allege or prove a violation of state law.

4. Defendants’ State Law Arguments

Nonetheless, federalism concerns might be implicated if the Government sought to apply the

quid pro quo

bribery theory of honest services fraud to conduct that New Jersey law sought to “immunize” but that “would otherwise be a federal crime,”

United States v. Urciuoli,

513 F.3d 290, 298 (1st Cir.2008), or to actions or conduct that New Jersey state law declined to prohibit. Further, if state law is ambiguous as to whether the conduct alleged in the Indictment constitutes a deprivation of “honest services” in New Jersey, even though it is clear that § 1346 prohibits

quid pro quo

bribery, notice concerns might be raised. Thus, even though the Indictment need not allege, and the Government need not prove, a violation of state law under the bribery theory of § 1346, Defendants’ arguments regarding New Jersey state law are relevant, by way of federalism and fair notice concerns, to the application of § 1346 in this case. The issue here is not whether the Indictment alleges a violation of New Jersey state law (it need not), but whether New Jersey state law renders § 1346 either unconstitutionally vague or inconsistent with due regard for federalism concerns as applied to the conduct alleged in the Indictment. For the reasons below, the Court finds that Defendants’ state law arguments in no way impugn the application of § 1346 to the alleged

quid pro quo

bribery arrangement between Bryant and Gallagher.

a. The New Jersey Bribery Act

The New Jersey Bribery Act reads, in pertinent part:

2C:27-2. Bribery in official and political matters

A person is guilty of bribery if he directly or indirectly offers, confers or agrees to confer upon another, or solicits, accepts or agrees to accept from another: a. Any benefit as consideration for a decision, opinion, recommendation, vote or exercise of discretion of a public servant, party official or voter on any public issue or in any public election; or ...

c. Any benefit as consideration for a violation of an official duty of a public servant or party official; or

d. Any benefit as consideration for the performance of official duties.

For the purposes of this section “benefit as consideration” shall be deemed to mean any benefit not authorized by law.

N.J.S.A. 2C:27-2.

As a matter of New Jersey law, it is clear that when a public official accepts a benefit in exchange for official action it is a violation of the New Jersey Bribery Act, N.J.S.A. 2C:27-2: “The proofs were sufficient to show that ... defendants accepted a benefit

in exchange

for their promise or agreement to influence official action.”

State v. Schenkolewski,

301 N.J.Super. 115, 141 , 693 A.2d 1173 (App.Div., 1997) (emphasis added). Similarly, under N.J.S.A. 2C:27-2 the payor of a bribe must satisfy the same requirement — intent to engage in an exchange:

Applying these standards here, there was substantial evidence that defendant Buckley

paid the money for the benefit of defendant Schenkolewski in exchange

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for a “promised” or “definitive” vote on the Township Committee.

A factfinder could reasonably conclude that Buckley paid $500,000 to a school headed by Rabbi Schenkolewski, which paid his salary, as a consideration for the Rabbi using his influence to insure favorable action by the three Committee members whose votes were necessary. Thus, there was sufficient evidence to sustain the bribery charge against Buckley.

Id.

at 140 , 693 A.2d 1173 (emphasis added). Thus, the Indictment’s allegation that Bryant accepted his SOM salary in exchange for taking official action in favor of SOM falls squarely within the terms of N.J.S.A. 2C:27-2.a. Defendants, however, dispute that conclusion.

Defendants’ primary argument with respect to the New Jersey Bribery Act is that it is unconstitutionally vague as applied to the conduct alleged in the Indictment’s

quid pro quo

bribery scheme: that Bryant knowingly received his SOM salary in exchange for taking official action in favor of SOM. Defendants make several specific arguments on this front, but all of them are unavailing.

First, Defendants argue that the bribery statute is circular or tautological, and as a result, ordinary people cannot understand what conduct it prohibits; hence, it is unconstitutionally vague as applied. Defendants argue that the last sentence of N.J.S.A. 2C:27-2, defining “benefit as consideration” as “any benefit not authorized by law” renders the statute circular: “the statute provides only that an illegal benefit is an illegal benefit.” Gallagher’s Brief, 34;

see also Gordon,

183 Fed.Appx. at 211 (“Honest services fraud may be found where a public official fails to disclose a conflict of interest in violation of law”) (citing

Panarella,

277 F.3d at 694 , and

Antico,

275 F.3d at 263 ). The Indictment alleges the failure to disclose theory of honest services fraud: “It was a further object of this scheme and artifice to defraud that defendants BRYANT and GALLAGHER did not disclose and attempted to conceal material information regarding the nature of defendant BRYANT’s corrupt arrangement at SOM.” Indictment, Counts 1-6, ¶ 18.

Defendants argue that the Indictment’s failure to disclose theory should be stricken from the Indictment as surplusage. Specifically, they contend that the failure to disclose theory is a “semantic repackaging” of the

quid pro quo

bribery theory, rather than an alternative theory of honest services fraud. Defendants Reply Brief, 13. Further, they argue that a jury could not logically accept the failure to disclose theory without already accepting the

quid pro quo

bribery theory. It follows, Defendants argue, that the failure to disclose theory is redundant and confusing, and hence prejudicial to Defendants.

The Government has confirmed that the failure to disclose theory here is derivative of the

quid pro quo

bribery theory. The Government’s briefing clearly identifies what it considers to be the pertinent conflict of interest in the case at bar: Bryant’s

quid pro quo

arrangement with Gallagher, i.e., that Bryant’s SOM salary was paid in exchange for official action. The Government writes:

The conflict of interest at issue here is Bryant’s conflict between his duty to honestly serve, without corrupt preference, all of the citizens of New Jersey who he was elected to represent on one hand, and his paid-for interest in promoting the concerns of Gallagher and

SOM at the expense of other beneficiaries of public spending, on the other hand.

Government’s Brief, 24. Again, the Government explains:

The conflict ... is not that Bryant was employed by SOM while serving as a State Senator, so disclosure of the position did not disclose the conflict. Rather it was that he had a secret agreement with Gallagher that his SOM salary was consideration for Bryant’s official efforts to lobby his senatorial colleagues and support legislation to increase public financing of SOM.

Id.

at 25. Further, the Government argues that “[t]he Indictment adequately alleges that Bryant failed to disclose the

true nature

of his SOM job,” i.e., the “secret agreement” between himself and Gallagher.

Id.

(emphasis added).

The Government confirmed at oral argument that “[cjlearly what [Bryant] is concealing is the improper unlawful agreement.” Oral Argument, 47. The Court asked the Government to confirm that “you are not suggesting [Bryant] concealed that he was employed by UMDNJ; but that you are saying that he concealed what his actual role was going to be,” and the Government responded, “[tjhat’s right.”

Id.

at 52-53. Again, the Government stated that “the concealment ... I believe is the corrupt agreement.”

Id.

at 55. Finally, the Government stated: “But of course it’s not the payments that are the

quid pro quo.

It’s the

reasons

for the payments [, i.e., the corrupt agreement.] That’s the nondisclosure.”

Id.

at 58 (emphasis added).

Importantly, the Government conceded that the jury’s acceptance of the

quid pro quo

bribery theory is a logical precondition to the jury’s acceptance of the failure to disclose theory. When asked whether “a jury [could] find them guilty of the concealment without a

quid pro quo,”

the Government responded, “perhaps as a logical matter they could not.”

Id.

at 56. Further, when asked “whether you think for purposes of the concealment the jury would have to find

quid pro quo

as well in this agreement,” the Government confirmed “[y]es that’s right.”

Id.

at 57.

Finally, the Government acknowledged that, although the Indictment alleges both theories of honest services fraud, there is “essentially” only one theory. When the Court asked the Government if “you have agreed that the only theory here is essentially the bribery theory because you indicated that the concealment really is based as you said on the

quid pro quo,”

the Government responded, “That’s correct.” Oral Argument, 79.

The Indictment itself makes clear that the Government’s failure to disclose theory is parasitic of the bribery theory-that is, a jury could not logically find a failure to disclose without first finding that there was a bribery arrangement between Bryant and Gallagher. To begin, the Indictment alleges that it was “an object of [the] scheme and artifice to defraud” that Gallagher caused Bryant to receive his SOM salary in exchange for official action. Indictment, Counts 1-6, ¶ 18. Then, in the next sentence, the Indictment alleges that “[i]t was a further object of this scheme and artifice to defraud that defendants Bryant and Gallagher did not disclose and attempted to conceal material information regarding

the nature of defendant Bryant’s corrupt arrangement

at SOM.”

Id.

(emphasis added). Thus, an “object” of the scheme and artifice to defraud, as alleged in the Indictment, was the failure to disclose the “corrupt arrangement,” i.e., the

quid pro quo

exchange described in the previous sentence of paragraph 18.

The structure of the subsequent allegations is consistent with this interpretation of the Indictment. All of the allegations

*418

that follow paragraph 18, which are alleged to be “part of this scheme,” i.e., the scheme laid out in paragraph 18, make no distinction as to whether they are supportive of the “object” to engage in the

quid pro quo

exchange or the “object” to fail to disclose the

quid pro quo

exchange, because they are inextricably linked. Obviously the participants in a

quid pro quo

bribery agreement will not knowingly disclose, and indeed, likely take steps to conceal, the nature of their agreement. Thus, as the Government argued in its briefing and conceded at oral argument, what Bryant and Gallagher criminally failed to disclose, at least as alleged in the Indictment, is

not

Bryant’s employment with SOM, but the corrupt arrangement underpinning his employment, i.e., that his salary was paid in exchange for official action.

Of course, a failure to disclose a conflict of interest theory is not necessarily the same as a bribery theory. Putting aside the allegations that Bryant’s SOM employment was nothing more than a

quid pro quo

bribery arrangement with Gallagher, the Government

could

have alleged a failure to disclose a conflict of interest theory that was independent of the bribery theory: that Bryant failed to disclose the fact of his SOM employment, to the extent any of it was

bona fide,

when such employment constituted a conflict of interest. For example, the Indictment alleges that “[c]on-trary to the New Jersey Legislative Code of Ethics requirement that state legislators identify all sources of income in excess of $1,000, defendant ... Bryant intentionally failed to disclose his payments from SOM on his 2003 Legislator’s Financial Disclosure statement.” Indictment, Counts 1-6, H22.b. Further, it is alleged that “[a]t meetings with state officials regarding UMDNJ and SOM business, and in his dealings with staff and members of the New Jersey State Legislature with whom he worked on state budget issues related to UMDNJ and SOM, defendant ... Bryant did not disclose that he was being paid by SOM.”

Id.

at ¶ 22.d. Whether or not these allegations could potentially support a failure to disclose a conflict of interest theory that is independent of any bribery scheme, such a theory is not set forth in the Indictment. This was confirmed by the Government’s briefing and at oral argument.

There is an additional reason why the Indictment’s failure to disclose theory is derivative of the

quid pro quo

bribery theory here. If the “object” of the honest services fraud was merely a failure by Bryant to disclose

bona fide

employment with SOM when it presented a conflict of interest, per the allegations of paragraph 22 of the Indictment, without any assistance from Gallagher, then Gallagher would have no role in Bryant’s alleged commission of honest services fraud. Hence, the Government emphasizes that it is the corrupt purpose of Bryant’s SOM salary that triggers Gallagher’s liability:

[I]t is not the “the fact of the salary payments” to Bryant from SOM that was at the heart of the fraudulent scheme, but the purpose of those payments: to influence Bryant to take discretionary action as a State Senator on behalf of SOM. The Indictment alleges that Gallagher took affirmative steps to conceal from the public this corrupt purpose.

Government’s Brief, 68. Moreover, the Indictment clearly charges both Bryant and Gallagher with a single scheme to “defraud the State of New Jersey and its citizens of the right to defendant ... BRYANT’S honest services.” Indictment, 1117. Thus, an interpretation of the failure to disclose theory that makes it independent of the bribery theory would require a separate allegation of honest services fraud against only Bryant, which, of course, is nowhere to be found in the Indictment.

*419

In the context of this case, the Third Circuit’s recent explanation of the policy justification for the failure to disclose theory is useful:

Were it easy to detect and prosecute public officials for bribery, the need for public officials to disclose conflicts of interest would be greatly reduced. As long as a public official does not act on a conflict of interest, the conflict of interest by itself poses little threat to the public. One reason why federal and state law mandates disclosure of conflicts of interest, however, is that it is often difficult or impossible to know for sure whether a public official has acted on a conflict of interest.

Cf Holzer,

816 F.2d at 308 (“How can anyone prove how a judge would have ruled if he had not been bribed?”).

The 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 Loeper 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 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.

Panarella,

277 F.3d at 698 (emphasis added). The conceptual distinction between the bribery theory and failure to disclose theory is that, under the failure to disclose theory, the conflict of interest that is not disclosed can be something

less

than a

quid pro quo

agreement to exercise official discretion. The reason that the failure to disclose theory applies even when the conduct at issue falls short of a quid pro quo arrangement is that, by failing to disclose a conflict of interest, the official deprives the public of the ability “to judge for itself when an official has acted on a conflict of interest,”

Id.,

and hence deprives the public of his honest services — even if the official was not actually influenced by a conflict of interest, or did not agree to be influenced. However, when the alleged conflict of interest is solely the official’s involvement in a bribery arrangement, the failure to disclose theory does not prohibit any conduct that the bribery theory does not already prohibit, and, as such, the failure to disclose theory is redundant.

The case at bar poses precisely that scenario: the Government conceded that a finding of

quid pro quo

bribery is a logical prerequisite to a finding that Bryant failed to disclose a conflict of interest, i.e., the one posed by the

quid pro quo

arrangement. Indeed, the Government stated, with respect to the failure to disclose theory, it need not prove anything in addition to the

quid pro quo

arrangement. Oral Argument, 55 (with respect to the failure to disclose theory, the Government stated: “I’m just trying to think here if we have to prove anything more than the existence of the

quid pro quo

and I guess I don’t think we do”). Thus, the Court agrees with Defendants’ premise that, in this case, the Government’s failure to disclose theory is derivative of its

quid pro quo

bribery theory, and hence redundant.

b. Defendants’ Motion to Strike the Failure to Disclose Theory as Sur-plusage

The question, then, is what follows from the premise that the failure to disclose theory is entirely derivative of the bribery theory. The Government argues that, even if it would be illogical to convict on the failure to disclose theory but not on the bribery theory, nonetheless the Government should be permitted to allege and prove both theories. The Government asserts that “the jury is allowed to return an inconsistent verdict which could be wholly illogical, and that is why we are entitled to

*420

go to the jury with both prongs of honest services fraud. There is simply no basis to dismiss one of the two independent prongs because ... there is a logical overlapping of them.” Oral Argument, 56. Defendants respond that the Government’s pursuit of both prongs .will invite juror confusion that will cause them severe prejudice:

[A]t trial the jury will no doubt be bombarded with all manner of purported concealments, [e.g., the allegations in paragraph ¶ 22 of the Indictment,] which it understandably may mistake for the concealment prong of the fraud charge. Because logically the jury would never need to deliberate on the concealment theory unless it had already convicted on the bribery theory, the concealment theory is dangerously and unfairly redundant — unnecessary for the government but potentially highly prejudicial to the defense.

Defendants’ Reply Brief, 14. Thus, the Defendants argue that the failure to disclose theory should be stricken as surplus-age; they, however, do not identify which specific allegations in the Indictment should be stricken.

The Government made two replies at oral argument. First, the Government points out that cases charging both prongs of honest services fraud are legion. Oral Argument, 57-58. Second, the Government argues that “completely coherent instructions on what we need to prove” would address any potential juror confusion.

Id.

at 58.

Defendants’ motion to strike the failure to disclose theory as surplusage is governed by

Fed.R.Crim.P.

7(d). “[U]pon the defendant’s motion, the court may strike surplusage from the indictment or information.”

United States v. Hedgepeth,

434 F.3d 609, 612 (3d Cir.2006). In

Hedgepeth ,

the court held that “upon the defendant’s timely motion, the court may strike sur-plusage from the indictment or information when it is both irrelevant (or immaterial) and prejudicial. Logic demands the conjunctive standard.”

Id.

at 612 .

Although Defendants do not specify the allegations in the Indictment which they believe should be stricken as surplusage, presumably they have in mind the second sentence of paragraph 18 and all of paragraph 22. The second sentence of paragraph 18 identifies the second “object” of the Defendants’ alleged scheme, and in doing so, charges the failure to disclose theory: “It was a further object of this scheme and artifice to defraud that defendants Bryant and Gallagher did not disclose and attempted to conceal material information regarding the nature of defendant Bryant’s corrupt arrangement at SOM.” Indictment, Counts 1-6, ¶ 18.

Furthermore, in paragraph 22, the Indictment specifically alleges that Gallagher took actions to conceal the nature of his corrupt agreement with Bryant and that Bryant failed to disclose his employment at SOM on a number of occasions. It is alleged that Gallagher “caused the publicly disclosed description for defendant BRYANT’s position to misleadingly state that defendant BRYANT’s job was to ‘improve University communications ... with local governments, community and civic organizations and local residents,’ while omitting any reference to defendant BRYANT’s use of his position and influence as a State Senator on behalf of SOM.”

Id.

at ¶ 22.a. This job description lead unknowing third parties to describe Bryant’s position as “an ‘external affairs’ or ‘public relations job.’ ”

Id.

The Indictment also alleges that it was “further part of this scheme” that Bryant failed to disclose his SOM income on his 2003 Legislator’s Financial Disclosure Statement until April 22, 2005, after UMDNJ announced it was conducting an investigation into the breakdown of financial controls at

*421

UMDNJ, and that he failed to disclose his employment with SOM at meetings with state officials and in his dealings with staff and members of the state legislature, with whom he worked on issues pertaining to SOM and UMDNJ.

Id.

at ¶22 b.d. The sentence in which the Indictment charges the failure to disclose theory (¶ 18) and the Indictment’s specific allegations that Bryant failed to disclose his employment with SOM (¶ 22) require separate analysis.

The above discussion makes clear that the Indictment’s charge of the failure to disclose theory in paragraph 18 is irrelevant. Because the conflict that the Indictment alleges that Bryant failed to disclose

the

quid pro quo

bribery arrangement, a jury could not convict Defendants under the failure to disclose theory without already finding that Defendants committed

quid pro quo

bribery. Indeed, the Government conceded this at oral argument. Again, when asked whether “you think for purposes of the concealment the jury would have to find

quid pro quo

as well in this agreement,” the Government confirmed “[y]es that’s right.” Oral Argument, 57. Although a single count may allege that a defendant committed a crime through more than one specified means,

Fed. R. Crim P.

7(c)(1), the Indictment’s failure to disclose theory is not an

alternative

means by which Defendants committed honest services fraud; it is the same theory of criminal liability stated in different language.

Further, Defendants could be severely prejudiced if a jury were to confuse the Indictment’s failure to disclose theory— that Bryant and Gallagher failed to disclose and attempted to conceal the

quid pro quo

bribery arrangement — with the allegations,

inter alia,

that Bryant failed to disclose the fact of his employment at SOM. Since the failure to disclose theory is redundant and immaterial, yet poses a significant risk of prejudice, the Court finds that it should be stricken as surplusage.

In contrast, the Indictment’s factual allegations in paragraphs 22.a. through 22.d. are highly relevant. Actions allegedly taken by Gallagher to conceal the true nature of Bryant’s employment at SOM, as well as Bryant’s failure to disclose the fact of his employment at SOM at various times where it might have presented a conflict of interest, are relevant to whether or not a

quid pro quo

agreement actually existed between Bryant and Gallagher.

Cf. Pa-narella,

277 F.3d at 697 (recognizing that “[w]ere it easy to detect and prosecute public officials for bribery, the need for public officials to disclose conflicts of interest would be greatly reduced,” and that there are “practical difficulties in proving the existence of ... a

quid pro quo

”). In other words, these allegations are relevant to what both the Government (implicitly) and Defendants (explicitly) claim to be the singular theory of honest services fraud in this case: the

quid pro quo

bribery theory.

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If the Court were to strike these allegations as irrelevant surplusage, it would be tantamount to holding that an Indictment alleging a

quid pro quo

bribery arrangement must omit allegations that the

quid pro quo

arrangement was concealed or otherwise not disclosed. That cannot be correct; such allegations are relevant to showing a scheme to defraud and state of mind.

Further, the Indictment’s specific allegations in paragraphs 22.a. through 22.d. are not

in and of themselves

prejudicial or confusing. These allegations are potentially confusing, and hence prejudicial,

only

when they are enlisted in support of a finding of criminal liability on a separate failure to disclose theory of honest services fraud. Thus, Defendants’ motion to strike the failure to disclose theory from the Indictment, as charged in the second sentence of paragraph 18, is granted. However, the factual allegations that Gallagher attempted to conceal the corrupt nature of Bryant’s employment at SOM and that Bryant failed to disclose the fact of his employment with SOM, Indictment, Counts 1-6, ¶ 22a.-d., are relevant, and as such, are properly included in the Indictment.

C. Analysis of Counts 7-8

Counts 7 and 8, based upon the bribery scheme alleged in counts 1-6, also charge violations of 18 U.S.C. § 666 . That statute provides, in pertinent part:

(a)Whoever, if the circumstance described in subsection (b) of this section exists—

(1) being an agent of an organization, or of a State, local, or Indian tribal government, or any agency thereof—

(A) embezzles, steals, obtains by fraud, or otherwise without authority knowing-

ly converts to the use of any person other than the rightful owner or intentionally misapplies, property that—

(1) is valued at $5,000 or more, and

(ii) is owned by, or is under the care, custody, or control of such organization, government, or agency; or

(B)

corruptly solicits or demands for the benefit of any person, or accepts or agrees to accept, anything of value from any person, intending to be influenced or rewarded in connection with any business, transaction, or series of transactions of such

organization,

government,

or agency involving any thing of value of $5,000 or more; or

(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 $5,000 or more; shall be fined under this title, imprisoned not more than 10 years, or both.

(b) The circumstance referred to in subsection (a) of this section is that the organization, government, or agency receives, in any one year period, benefits in excess of $10,000 under a Federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance.

(c)

This section does not apply to bona fide salary, wages, fees, or other compensation paid, or expenses paid or reimbursed, in the usual course of business.

18 U.S.C. § 666 (emphasis added).

Based on the same facts underlying the honest services fraud counts,

it is alleged

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in Count 7 that Bryant “knowingly and willingly did corruptly solicit and demand for the benefit of himself ... a salaried and pensionable position at SOM permitting him to receive a stream of payments and pensionable income ... intending to be influenced and rewarded in connection with a ... series of transactions of the State of New Jersey involving a thing of value of $5000 or more,” in violation of 18 U.S.C. § 666 (a)(1)(B). Indictment, Count 7, ¶ 3. Count 8 alleges that Gallagher “knowingly and wilfully did corruptly give, offer, and agree to give a thing of value, namely ... a stream of payments and pensionable income to WAYNE R. BRYANT, with intent to influence and reward an agent of the State of New Jersey,” in violation of 18 U.S.C. § 666 (a)(2).

Id.

at Count 8, ¶ 2.

The Third Circuit has recognized that the following elements constitute a § 666(a)(1)(B) crime: “1) corrupt solicitation; 2) of anything of value; 3) with the intention of being influenced in connection with any transaction of a local government or organization receiving at least $10,000 in federal funds annually; 4) where the transaction involves anything of value of $5,000 or more.”

United States v. Cicco,

938 F.2d 441, 444 (3d Cir.1991). The elements of § 666(a)(2) are similar: “the government [is] required to prove that [the defendant] ‘[1] corruptly gave ... [2] anything of value to any person, [3] with intent to influence or reward an agent of an organization or of a State, local or Indian tribal government, or any agency thereof, [4] in connection with any business ... of such organization, government, or agency involving anything of value of $5,000 or more.’ ”

Flemming,

223 Fed.Appx. at 123 . Both Bryant and Gallagher assert various reasons why the Indictment fails to adequately allege the first and third elements, and also raise constitutional objections. The Court, however, finds Defendants’ contentions unavailing.

First, rehashing his argument with respect to Counts 1-6, Bryant argues that the third element required for a violation of § 666(a)(1)(B) — “intending to be influenced” — has not been adequately plead. Bryant argues that the Indictment fails to allege a “but for” causal link between the

quid

and the

quo

in the alleged bribery agreement, i.e., that in return for his SOM salary, Bryant, in his official capacity as a state legislator, took favorable action toward SOM “that he would not otherwise have taken.” Bryant’s Brief, 20.

The Court does not need to reach the issue of whether “intending to be influenced or rewarded” within the meaning of § 666(a)(1)(B) requires that a defendant take actions he would otherwise not have taken. This is because Count 7 clearly alleges a “but for” causal link between the

quid,

the SOM salary, and the

quo,

Bryant’s conduct in transactions involving the state of New Jersey: Bryant “did corruptly solicit ... a salaried and pensionable position at SOM ...

intending to be influenced

and rewarded in connection with.... ” Indictment, Count 7, ¶ 3 (emphasis added). Thus, Count 7 alleges that Bryant accepted salary payments from SOM, the

quid,

while intending to be influenced in taking favorable actions toward SOM in his capacity as a state legislator, the

quo. See Id.

at Counts 1-6, ¶¶ 20-21. Bryant’s contention that, “[a]s far as the Indictment states, Senator Bryant’s actions remained unaffected by the payments” from SOM misreads the plain language of the Indictment. Bryant’s Brief, 21. Count 7 clearly alleges that, far from being unaffected by the payments, Bryant intended to be influenced by the payments when taking the actions described in the Indictment.

*424

Bryant cites authority for the proposition that to be “influenced” in taking action means that the action is “induced” or “affected” by a bribe. Bryant’s Brief, 20. Though the Indictment does not specifically state that Bryant’s official actions were “induced” or “affected,” that is the plain import of the Indictment’s language: Bryant accepted a stream of payments from SOM “intending to be influenced and rewarded” in connection with transactions of the State of New Jersey.

Indictment, Count 7, ¶ 3. When evaluating the sufficiency of an Indictment, “no greater specificity than the statutory language is required so long as there is sufficient factual orientation to permit the defendant to prepare his defense and to invoke double jeopardy in the event of a subsequent prosecution.”

Kemp,

500 F.3d at 280 (quotations and citations omitted). The allegation that Bryant accepted the SOM salary “intending to be influenced and rewarded” tracks the statutory language of § 666(a)(1)(B), and the description of the

quid pro quo

exchange in the Indictment provides “sufficient factual orientation” for that allegation.

Moreover, the

Ford

case that Bryant relies upon supports the sufficiency of the allegations in the Indictment with respect to Count 7. In

Ford ,

the Second Circuit described the intent required by the recipient of a bribe under § 666:

The recipient’s “awareness” that the donor gave something of value for the purpose of influencing the recipient might well constitute strong circumstantial evidence that the recipient acted with the requisite culpable state of mind in accepting the item, but a jury should be clearly instructed that it is

the recipient’s intent to make good on the bargain,

not simply her awareness of the donor’s intent that is essential to establishing guilt under Section 666.

Ford,

435 F.3d at 213 (emphasis added). Because the Indictment alleges that Bryant accepted his SOM salary “intending to be influenced,” it makes clear that Bryant acted with the “intent to make good on the bargain” he struck with Gallagher. Thus, Count 7 is sufficient.

Second, Defendants attack the sufficiency of the Indictment’s allegations of a “corrupt solicitation” and a “corrupt giving” of the SOM salary. They contend that a corrupt act within the meaning of § 666 must be a violation of an official duty, and that state law defines the scope of Bryant’s official duties as a state legislator. Thus, through the “corruptness” element of § 666, Defendants assert the same objections to the state law predicates that they raised in the context of the honest services fraud Counts. First, Defendants argue that the absence of an allegation that Defendants breached a state law duty means that the Indictment fails to sufficiently allege the element of “corruptness” in Counts 7 and 8. Second, Defendants argue that the vagueness of the pertinent state law duties render § 666 unconstitutionally vague as applied to the allegations in the Indictment. Both arguments fail because Defendants cannot provide authority for the proposition that a violation of § 666 requires that the Government prove the violation of an independent state law, and I do not find that it is so required.

Defendants principally rely on

United States v. Rooney,

37 F.3d 847, 853 (2d Cir.1994), where the Second Circuit held that “it is clear to us that the use of the term corruptly in § 666 entails the violation of some duty owed to the government or to the public in general.”

Rooney,

*425

F.3d at 852-53. In

Rooney ,

the defendant was a private developer working on a private project in which the federal government was a lender. The defendant told a general contractor that, in return for constructing a pond adjacent to the project, the defendant would apply for further funding from the federal government, and thereby repay his debt to the general contractor immediately.

Id.

at 849-50 . “It was the government’s theory at trial that Rooney’s offer to apply for further [federal] funds so he could immediately pay [the general contractor] in exchange for the contractor’s construction of a pond adjacent to the project constituted a corrupt solicitation of a thing of value by Rooney.”

Id.

at 852 . The court found that Rooney’s actions did not violate a duty he owed to the government “when he conditioned further loan requests and thus prompter payment upon the construction of a pond.”

Id.

at 853 .

Rooney

does not support Defendants’ arguments here.

First,

Rooney

did not hold, as Defendants imply, that the breach of duty needed for a finding of “corrupt solicitation” requires a violation of an independent state law predicate. Second, and more importantly,

Rooney

makes clear that in the typical § 666 case — one where a government official accepts a bribe with the intent to be influenced in the exercise of his official discretion — the breach of duty, and hence the corruptness of the solicitation, is obvious. The court said:

As discussed above, the typical § 666 case easily meets this test [, i.e., the violation of some duty owed to the government or to the public in general.] It is an obvious violation of duty and public trust for. a public official or some other person responsible for parceling out government benefits to accept or demand a personal benefit intending to be improperly influenced in one’s official duties.

In contrast, Rooney’s duty, as a private developer trying to maximize revenues while minimizing costs, is far less clear.

Id.

(citations omitted). Bryant’s position as a state legislator makes it “an obvious violation of duty and public trust” for him to solicit a salary from SOM in return for being influenced in the exercise of his official discretion. Thus, according to

Rooney ,

the allegations in the Indictment are sufficient to state a violation of § 666(a)(1)(B).

Moreover, the Third Circuit has recently upheld the sufficiency of the evidence for a § 666(a)(2) conviction without any reference to, or even the slightest implication that, the violation of a state law is required for a § 666 conviction: “the evidence is

*426

sufficient for a reasonable jury to find that Flemming corruptly gave [a procurement official] money to influence [the procurement official] to expedite payments to Flemming’s company under the contract.”

Flemming,

223 Fed.Appx. at 123 . Because Bryant was a state legislator during the time period pertinent to the allegations of the Indictment, there is no question that, as in

Flemming ,

it was “an obvious violation of duty and public trust for [Bryant, a] person responsible for parceling out government benefits [,] to accept or demand a personal benefit intending to be improperly influenced” in his official duties.

Rooney,

37 F.3d at 853 . Hence, Defendants’ attack on the duties specified by the Indictment in the context of the honest services fraud charges in Counts 1-6 are irrelevant to the sufficiency of the allegations in the Indictment with respect to § 666.

State law duties aside, Gallagher relies on

United States v. Thompson,

484 F.3d 877 (7th Cir.2007) for his contention that the § 666 counts are unconstitutionally vague as applied.

Thompson ,

however, is inapposite. Thompson was convicted of violating § 666(a)(1)(a), the embezzlement prong of § 666, not the bribery prong at issue here, on the theory that she “intentionally misapplied” government funds because she “deflected [a procurement decision] from the one that should have been made under the administrative process.”

Thompson,

484 F.3d at 880 . “Neither Thompson nor anyone else in state government was accused of taking a bribe or receiving a kickback.”

Id.

at 881 . That the court employed the following hypothetical in its analysis shows how far afield the facts of

Thompson are from

the case at bar:

Imagine how the prosecutor’s reading of § 666 would apply to a state official charged with implementing the Medicaid program. Someone applies for payment of medical expenses; a state employee approves; later it comes to light that the applicant made just a little too much money to be eligible, so the decision was erroneous. A violation of regulations and perhaps of some statutes has occurred, but is the error a crime? As we read § 666, the answer is no

unless the public employee is on the take

or the applicant is a relative (for indirect benefits are another form of payoff). An error-even a deliberate one, in which the employee winks at the rules in order to help out someone he believes deserving but barely over the eligibility threshold-is a civil rather than a criminal transgression. Likewise the sin is civil (if it is any wrong at all) when a public employee manipulates the rules, as Thompson did, to save the state money or favor a home-state producer that supports elected officials.

Id.

(emphasis added). Counts 7 and 8 are not based on the manipulation of any regulations or procurement rules, but effectively allege that Bryant agreed to be influenced in his official capacity as state senator in exchange for his SOM salary. Thus, on the “narrow reading” of § 666 that the court adopted out of respect for the constitutional concerns that Gallagher presses here,

Id., Thompson

makes clear that there is no “haziness” in the application of § 666 to the allegations in Counts 7 and 8.

Id.

at 884.

Third, Defendants argue that the conduct alleged in the Indictment falls within the “safe harbor” provision of § 666(c), or in the alternative, that ambiguity in the application of § 666(c) renders § 666 unconstitutionally vague as applied. The provision reads: “This section does not apply to bona fide salary ... or other compensation paid ... in the usual course of business.” 18 U.S.C. § 666 (c). Although there is authority suggesting that the § 666(c) exception is a question of fact for the jury,

see United States v. Williams,

507 F.3d 905, 909 (5th Cir.2007);

United

*427

States v. Dwyer,

238 Fed.Appx. 631, 647-48 (1st Cir.2007), Defendants rely on cases where, before trial, the court has dismissed § 666 counts as a matter of law based on the “safe harbor” provision of § 666(c).

See United States v. Harloff,

815 F.Supp. 618 (W.D.N.Y.1993);

United States v. Mills,

140 F.3d 630 (6th Cir. 1998). Thus, for purposes of this motion, the Court will accept that there may be situations where it is appropriate to dismiss an Indictment pursuant to § 666(c).

Nonetheless, the Court finds that § 666(c) is inapplicable to the allegations of Counts 7 and 8. The salary payments at issue were allegedly paid to Bryant as the

quid

in a

quid pro quo

bribery arrangement with Gallagher. Moreover, the Indictment alleges:

GALLAGHER caused the publicly-disclosed description for defendant Bryant’s position to misleadingly state that defendant Bryant’s job was to “improve University communications, image, receptivity, and relationships with local governments, community and civic organizations and local residents,” while omitting any reference to defendant Bryant’s use of his position and influence as a State Senator on behalf of SOM. Based on this description, the position was inaccurately described by unknowing third parties as an ‘external affairs’ or ‘public relations’ job. In reality, defendant Bryant’s

primary role

at SOM was to use his official position to advocate on behalf of SOM with state officials and legislators to provide official assistance in obtaining state funds for SOM.

Indictment, Counts 1-6, ¶ 22.a. (emphasis added). Since the payments at issue were allegedly compensation for Bryant’s undisclosed, “primary role” as a legislator on the take, rather than simply for work pursuant to Bryant’s publicly disclosed job description, it cannot be argued with a straight face that the payments were “bona fide” salary paid in the “usual course of business,” for purposes of this motion to dismiss.

Furthermore, the cases relied upon by Defendants for their § 666(c) argument are inapposite. In

United States v. Har-loff,

815 F.Supp. 618 (W.D.N.Y.), the court dismissed several counts of an indictment because the conduct, as a matter of law, fell within § 666(c)’s safe harbor. The defendants allegedly violated § 666 by “falsifying payroll records by claiming to have worked 40-hour weeks when in fact they worked ‘substantially fewer hours.’ ”

Har-loff,

815 F.Supp. at 618 . The court found, however, that a “plain reading of [§ 666(c) ] ... prohibits a prosecution under § 666 based on an employee’s accepting wages for more hours than s/he actually worked,” because Congress did not “intend[ ] to criminalize an employee’s early departure from work.”

Id.

at 619. Thus,

Harloff

stands merely for the proposition that § 666(c) is applicable to allegations that an employee worked fewer hours than that for which she was obligated. But the Indictment in the case at bar is not so structured. Bryant is not alleged to have violated § 666 by accepting a salary for more hours than he actually worked, thereby embezzling money from SOM, but rather by accepting a salary “intending to be influenced and rewarded” in connection with his official duties as a state legislator. Indictment, Count 7, ¶ 3. That Bryant failed to fulfill his publicly-disclosed job responsibilities may be relevant evidence of the bribery arrangement, but, unlike the defendants in

Harloff ,

that is not the

reason

Bryant is being prosecuted under § 666(a)(1)(B).

United States v. Mann,

172 F.3d 50 (6th Cir.1999), the Sixth Circuit found § 666(c) applicable to allegations that a school principal intentionally misapplied funds, his salary paid through the usual channels, from the school district in viola

*428

tion of § 666(a)(1)(a). “Because under Kentucky law [the defendant] was certified to be a teacher but not a principal, the government [argued] that the salary he received in excess of a teacher’s salary [was] improper,” and hence the basis for a violation of § 666.

Mann ,

172 F.3d 50 , 1999 WL 17647 at *1. Even though the defendant lacked a required certification, the Court found that the salary was “bona fide” within the meaning of § 666(c): “the position of principal of Chapman Academic Vocational School is clearly a real and necessary one, and the government concedes that [the defendant] performed the duties of his job.”

Id.

at 172 F.3d 50 , 1999 WL 17647 at *3. Again, unlike the salary paid to the principal in Mann, Bryant’s SOM salary was not paid in the “usual course of business” because it was allegedly the

quid

in a

quid pro quo

bribery arrangement. The salary in

Mann

was paid for legitimate work, albeit work that the defendant was not certified to perform.

Finally, Defendants rely on

United States v. Mills,

140 F.3d 630 (6th Cir.1998), where the court dismissed § 666 counts pursuant to § 666(c) because the transactions at issue did not exceed $5,000. A county sheriff and special deputy were paid $3500 and $3930 in exchange for hiring two men as deputy sheriffs. The government argued that “the salaries paid to the [bribers] who obtained deputy sheriff positions could not have been bona fide because of the illegal nature of the procurement process,” and therefore that their respective salaries should be included in the amount of money involved in the illegal transaction.

Mills,

140 F.3d at 633 . The court rejected the government’s argument and excluded the salaries from the amount of money involved because “the Indictment does not allege that the jobs in question were unnecessary or that the individuals who obtained those employment positions did not responsibly fulfill the duties associated with their employment,” and “absen[t] ... such allegations, the government has no support for its claims that the salaries were not properly earned ‘in the usual course of business.’ ”

Id.

at 633-34 .

Despite the fact that

Mills

applied § 666(c) to a case involving bribery, it is distinguishable. The reason why Bryant’s salary is not “bona fide” and “in the usual course of business” is not because of the alleged illegal nature of the procurement process. The allegations at issue in

Mills

were consistent with the possibility that, once the bribers were hired, the salary at issue was paid only for legitimate work, leaving the procurement process as the only reason to claim their salary was not “bona fide.” If the Indictment alleged that Gallagher, like the

Mills

defendants, was paid a bribe in exchange for giving Bryant an otherwise totally legitimate job at SOM, a different result might follow. But the bribery arrangement, as alleged in the Indictment, is very different. The Indictment alleges that whatever legitimate work Bryant may have done at SOM, his “primary role” was to use his legislative office to advocate on behalf of SOM. Indictment, Counts 1-6, ¶ 22.a. Thus, because Bryant accepted his SOM salary “intending to be influenced” as a state legislator, his salary was not merely corruptly procured, but also constituted payment for on-going corrupt activity.

Put another way, because the SOM salary itself constitutes the bribe' — the

*429

“[ ]thing of value” accepted with the intent to be influenced for purposes of § 666(a)(1)(B), and offered with the intent to influence for purposes of § 666(a)(2) — it was not “bona fide” or paid “in the regular course of business.” The continuing SOM salary is the functional equivalent of the $3500 and $3930 bribes in

Mills ,

which, of course, the

Mills

court did not exclude from calculation of the amount involved in the transaction pursuant to § 666(c).

United States v. Cornier-Ortiz,

361 F.3d 29 (1st Cir.2004), provides authority for the proposition that a salary is not “bona fide” simply because it is paid for legitimate work. In

Cornier-Ortiz ,

the defendant engaged in a scheme to use HUD funds to pay someone for work which that person was barred by conflict of interest rules from performing. “[T]he government made no effort to prove that the underlying work paid for by the HUD monies was not done ... The government’s strategy ... was not to prove that the work was not done, but rather, to prove that the work was done by someone who could not lawfully do it.”

ComierOrtiz,

361 F.3d at 34-35 (citation omitted). In response to the defendant’s argument that the salary was “bona fide” because the pertinent work was completed, the court responded: “A scheme designed to evade conflict of interest rules is hardly legitimate or acceptable. That the payments were made for a legitimate purpose — to hire a CGP expert to obtain funding for maintenance work that was indeed done — does not render them bona fide under the statute if they were intentionally misapplied, as they were here via sham contracts that skirted conflict of interest rules.”

Id.

at 36 . Similarly, even if Bryant’s SOM salary was paid in exchange for some legitimate work, that “salary” is not “bona fide” when it is also paid as the

quid

in a

quid pro quo

bribery agreement that constitutes an “obvious violation of duty and public trust.”

Rooney,

37 F.3d at 853 ;