# United States v. Bryant

> District Court, D. New Jersey · June 5, 2008 · 556 F. Supp. 2d 378

URL: https://www.frixlaw.com/law-library/cases/2390707

## Case

- **Full name:** UNITED STATES of America, Plaintiff, v. Wayne R. BRYANT, Et Al., Defendants
- **Court:** District Court, D. New Jersey
- **Decided:** June 5, 2008
- **Citations:** 556 F. Supp. 2d 378; 2008 U.S. Dist. LEXIS 51395; 2008 WL 2315720
- **Precedential status:** Published
- **Opinion:** Opinion by Wolfson
- **Judges:** Wolfson
- **Cited by:** 9 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

Opinion
WOLFSON, District Judge:
Presently before the Court are the motions of Defendants, Wayne Bryant
*383
(“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.
1
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.”
*384
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
*385
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.
2
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.
*386
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.
*387
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.
3
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.
4
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
*388
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
5
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.
6
*389
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.
7
*390
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.
*392
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).
8
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
in
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
in
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. Crozier,
987 F.2d 893, 901 (2d Cir.1993) (“[A]s we have held in connection with § 201, any payment that the defendant subjectively believes has value, including a loan, constitutes a thing ‘of value’ within the meaning of § 666(c)”). Thus, we conclude that loans, so long as they are granted in exchange for an official act, may drive a bribery prosecution.
Id.
Thus, the court did not address the nature of the causal connection between a
quid
and a
quo,
much less hold that
quid pro quo
bribery requires that the
quo
(Kemp’s official actions; Bryant’s official actions) would not have occurred without the
quid
(the loans extended to Kemp; Bryant’s SOM salary).
Defendants’ second argument is that an allegation that Bryant would not have taken the official actions at issue were it not for his agreement with Gallagher is required in order for the Indictment to charge that the salary was a bribe rather than a mere illegal gratuity. According to Defendants, “[cjontrasting ‘influence’ with
*395
‘reward’ (that is, bribe with gratuity) underscores the need for an impact on the official’s actions.” Defendants’ Reply Brief, 10. But as was just explained, an allegation that Bryant’s course of conduct changed from what it otherwise would have been absent the bribery arrangement is
not
needed to allege that Bryant’s official discretion was influenced by the agreement. Thus, such an allegation is not needed to preserve the distinction between a bribe, which involves a
quid pro quo
exchange, and a mere gratuity, which is a reward that does not influence the judgement of the official. As Justice Scalia stated in
Sun-Diamond Growers of California ,
the crucial distinction between a bribe and gratuity is the required element of intent, and the allegation of an “exchange” is another way of stating that the an official intended to be influenced.
Sun-Diamond Growers of California,
526 U.S. at 404-5 (holding that bribery requires an “intent to be influenced,” and then stating that “[i]n other words, for bribery there must be a
quid pro quo-a
specific intent to give or receive something of value in
exchange
for an official act”). Thus, the Court finds that the Indictment adequately alleges a sufficient
quid
and a sufficient
quo
under § 1346.
3. Must the Government Prove the Violation of a State Law Under the
Quid Pro Quo
Bribery Theory?
The role that state law plays in the context of honest services fraud with respect to (1) the sufficiency of the Indictment and (2) what the Government must ultimately prove at trial is heavily disputed by the Government and the defense. The sufficiency of the Indictment and what the Government must prove at trial, are, of course, different issues. But in the context of the arguments made by the parties regarding the Indictment, they are interrelated.
Following the assertion that “the State of New Jersey and its citizens had an intangible right to the honest services of their State Senators,” Indictment, Counts 1-6, ¶ 16, the Indictment cites obligations imposed by two New Jersey state laws and an uncited obligation to disclose, which may or may not be derived from state law, as duties that Bryant “owed the State of New Jersey and its citizens.”
Id.
There is a substantial dispute between the parties as to why those citations to state law are included in the Indictment, including whether there need be any reference to state law and whether it must be alleged in the Indictment and proven at trial that at least one of these state law duties was violated. Thus, it is necessary for the Court to clarify what the Government must prove at trial regarding the state law duties cited in the Indictment. In order for an Indictment to pass muster, it must “sufficiently apprise[] the defendant of what he must be prepared to meet.”
Kemp,
500 F.3d at 280 .
The Government contends that, even if a violation of a state law predicate is required by the failure to disclose theory of honest services fraud, a violation of a state law predicate need not be proven under the
quid pro quo
bribery theory. Oral Argument, 88-89.
9
Instead, the Gov
*396
ernment argues that it need only allege, and ultimately prove, a
quid pro quo
bribery arrangement as described in the case law interpreting § 1346; specifically, cases involving the bribery prong of honest services fraud.
10
Id.;
Government’s Brief, 32 (“the indictment need not allege a violation of state law”). Why then, as asked by the defense, is the New Jersey Bribery Act and bribery provision of the New Jersey Conflicts of Interest Laws cited in the Indictment? According to the Government, these state laws “give contour” to Bryant’s fiduciary duty to the New Jersey public. Oral Argument, 84. In Defendants’ view, however, to sufficiently allege honest services fraud under § 1346, the Indictment must allege a violation of a predicate state law, and the Government must prove that violation at trial.
For the reasons that follow, the Court finds that (1) once the Indictment adequately alleges that a duty of honest services was owed to the public, the Government need not allege a violation of an independent state law to adequately allege a violation of §§ 1341, 1343 and 1346 under the
quid pro quo
bribery theory, and (2) beyond establishing that a duty of honest services was owed to the public, the Government need not prove a violation of state law at trial to sustain a conviction under the
quid pro quo
bribery theory of honest services fraud.
a. The Source of the
Quid Pro Quo
Bribery Theory of Honest Services Fraud
In relevant part, the mail and wire fraud statutes provide:
Whoever, having devised or intending to devise any
scheme or artifice to defraud,
or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises ... [uses the mails or wires, or causes their use] for the purpose of executing such scheme or artifice ... shall be fined ... or imprisoned.
18 U.S.C. §§ 1341 , 1343 (emphasis added). Again, to prove mail or wire 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 [or interstate wires] ... in furtherance of the scheme.’ ”
Kemp,
500 F.3d at 279 (citing
Antico,
275 F.3d at 261 ).
By enacting 18 U.S.C. § 1346 , Congress clarified the meaning of the phrase “scheme or artifice to defraud” in the mail and wire fraud statutes: “For the purposes of this chapter, 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 . In
Antico ,
the Third Circuit stated: “Given Congress’ clear intent in enacting § 1346, we join with those courts that recognize that the scope of the amendment includes the prosecution of state and local officials and public employees for depriving the citizens they serve of their right to honest services.”
Antico,
275 F.3d at 262 .
Further,
Antico
explicitly held that “a scheme or artifice to deprive another of the intangible right of honest services,” 18 U.S.C. § 1346 , includes
quid pro quo
bribery. “Honest services fraud typically occurs in two scenarios:
(1) bribery, where a legislator 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 (citing
United States v.Woodward,
149 F.3d 46, 54-55 (1st Cir.1998)) (emphasis added);
*397
see also Panarella,
277 F.3d at 690 (“ ‘Honest services fraud typically occurs in two scenarios: (1) bribery, where a legislator was paid for a particular decision or action’ ”) (quoting
Antico,
275 F.3d at 262-63 );
United States v. Murphy,
323 F.3d 102, 114 (3d Cir.2003) (“bribery ... may even be the paradigm case of honest services fraud committed by public officials”);
United States v. Mangiardi,
962 F.Supp. 49, 51 (M.D.Pa.1997) (“The typical case of honest services fraud is the bribery of a public official”);
United States v. Mariano,
Docket No. 05-614, 2006 WL 487905 , *3 (E.D.Pa. Feb. 27, 2006) (“A person of ordinary intelligence should know that bribery, conducted through the U.S. Mail or otherwise, is illegal”) (citation omitted); Third Circuit Model Jury Instructions, Fraud Offenses, 13 (2007) (“So, for instance, a public official who accepts a bribe or corrupt payment breaches the duty of honest, faithful and disinterested service”). Thus, since
Antico
was decided in 2001, it has been clear in this Circuit that a scheme whereby “a legislator [is] paid for a particular decision or action,”
Antico,
275 F.3d at 263 , constitutes a “scheme or artifice to defraud” within the meaning of § 1346, and as such, is prohibited by the mail and wire fraud statutes.
In the Third Circuit’s recent decision in
Kemp ,
the court embraced
Antico’s
construction of § 1346. In rejecting a challenge to the sufficiency of the evidence to establish the bribery theory of honest services fraud, the court held: “a reasonable jury could conclude beyond a reasonable doubt that Kemp ‘was paid for a particular decision or action.’ ”
Kemp,
500 F.3d at 279 (citing
Antico,
275 F.3d at 263 ). Further, the court elaborated on
Antico’s
description of the bribery prong of honest services fraud by emphasizing the crucial concept of a
quid pro quo
exchange: “We have repeatedly recognized that accepting money in exchange for an official action is a form of honest services fraud.”
Kemp,
500 F.3d at 280 (citations omitted). The court further explained:
As we held above, bribery requires a specific intent to give or receive something of value
in exchange
for an official act. We note that evidence of a
“quid pro quo
can be implicit, that is, a conviction can occur if the Government shows that [the defendant] accepted payments or other consideration with the implied understanding that he would perform or not perform an act in his official capacity.”
Antico,
275 F.3d at 257 . As we have recognized, “ ‘the official and the payor need not state the
quid pro quo
in express terms, for otherwise the law’s effect could be frustrated by knowing winks and nods.’ ”
Id.
at 258 (quoting
United States v. Bradley,
173 F.3d 225, 231 (3d Cir.1999)).
Kemp,
500 F.3d at 284 (emphasis in original). Thus, the
quid pro quo
bribery theory of honest services fraud is derived from §§ 1341, 1343 and 1346.
b. No State Law Violation is Required
Defendants contend that the
quid pro quo
bribery theory of honest services fraud requires that the Indictment allege, and the Government ultimately prove, an additional element beyond a
quid pro quo
exchange: the violation of a state law predicate. However,
Kemp
made clear that an indictment need only allege a
quid pro quo
exchange to sufficiently allege the bribery prong of honest services fraud. The defendant bankers who were convicted of bribing a public official, there argued that the indictment failed to allege the bribery theory of honest services fraud. The court responded:
We conclude that the indictment here adequately charged Hoick and Umbrell with the bribery theory of honest services wire fraud. The wire fraud counts of the indictment (counts 15-22) plainly alleged honest services fraud,
*398
charging Hoick and Umbrell with engaging in “a scheme to defraud the City of Philadelphia and its citizens of the right to defendant COREY KEMP’S honest services in the affairs of the City of Philadelphia.” (App. at 587.) Then, the specific factual allegations — some of which were incorporated by reference to the allegations of the conspiracy charge,
see
Fed.R.Crim.P. 7(c)(1) (“A count may incorporate by reference an allegation made in another count.”);
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.
11
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.
12
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.
13
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).
14
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.
15
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
16
)
— 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.
17
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
18
;
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.
In
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.
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
*407
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.
As
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”
*408
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
*409
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
*410
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
Bryant’s Brief, 12-13. The Court disagrees.
When the phrase “benefit as consideration” is replaced with the statute’s supposedly “circular” definition of that phrase, the pertinent language of the statute reads as follows: “A person is guilty of bribery if he ... solicits, accepts or agrees to accept from another: a. Any benefit [not authorized by law] for a decision, opinion, recommendation, vote or exercise of discretion ... on any public issue.” This clearly means that an official cannot accept any benefit as consideration for an exercise of his official discretion
unless
such benefit is authorized by some law, i.e., a law other than the bribery statute. In other words, all “benefits” fall within the statute’s prohibition unless they are authorized elsewhere. As the Government explains: “definition of ‘benefit as consideration’ as ‘any benefit not authorized by law’ simply and quite obviously means that if a particular benefit provided to the alleged bribe-taker is authorized by some law, then the payment of the benefit does not violate the bribery statute.” Government’s Brief, 59. Absent such authorization, a benefit given as consideration for official action falls within the statute’s prohibition. It follows that if a person offers or accepts a benefit as consideration for official action in New Jersey, that person must check to see if some other source of law provides an exception to the statute’s general ban of the offer or acceptance of benefits as consideration. Yet Defendants have provided no case law for the proposition that a penal law is unconstitutionally vague merely because it states that other laws can carve out exceptions to the conduct it prohibits.
While cases might arise where it is unclear whether a benefit given as consideration is “authorized by law” in New Jersey, there is no question that the Indictment’s alleged
quid pro quo
bribery scheme is not. Defendants have pointed to no New Jersey law authorizing a state legislator to accept a salary from UMDNJ that was paid in exchange for the legislator taking action in his official capacity as a legislator.
19
*411
An as applied vagueness challenge against a similarly structured bribery statute has been rejected in
People v. Johnson,
335 Ill.App.3d 805 , 269 Ill.Dec. 331 , 780 N.E.2d 803 (Ill.App. 4 Dist.2002). The provision stated as follows
A person commits bribery when: (a) With intent to influence the performance of any act related to the employment or function of any public officer, public employee, juror or witness, he promises or tenders to that person any property or personal advantage
which he is not authorized by law to accept.
720 ILCS 5/331(a) (emphasis added). The recipient of the bribe was prohibited by a county ordinance from receiving the payment at issue.
Johnson,
335 Ill.App.3d at 808-9 , 269 Ill.Dec. 331 , 780 N.E.2d 803 . The court found that the defendant, the payor, had adequate notice because “[t]he statute plainly prohibits the tender of property to
any
public employee who is not authorized to accept it.”
Id.
at 807 , 269 Ill.Dec. 331 , 780 N.E.2d 803 (emphasis in original). Thus, the fact that the bribery statute defined prohibited benefits as “property or personal advantage which [the recipient] is not authorized by law to accept” — thereby incorporating exceptions made in other laws — did not render the statute unconstitutionally vague.
Finally, the cases Defendants rely on are inapposite. In
Goldy v. Beal,
429 F.Supp. 640 (M.D.Pa.1976), the court found that an involuntary civil commitment statute was void for vagueness. Defendants here argue that
Goldy
was predicate ed on a finding that the Pennsylvania statute was circular, just as they characterize the New Jersey Bribery Act: “The most apparent aspect of the Pennsylvania civil commitment standard as embodied in sections 406 and 102 is that it is circular [-] a person may be committed if he is in need of care because of a mental disability which so lessens his capacity ‘as to make it necessary or advisable for him to be under
care....”’ Id.
at 648. First, as explained above, the New Jersey Bribery statute is not circular; it merely has exceptions which may be found in other laws. Second, the
Goldy
court’s finding that the statute was unconstitutionally vague was
not
based upon it being “circular”
Thus, the primary restriction on the discretion of a court to order commitment pursuant to section 406 is the requirement that the person to be committed be in need of care because of reduced capacity to use his customary self-control, judgment and discretion in the conduct of his affairs. Such a standard is imper-missibly vague, if only because the key phrase “in need of care” is susceptible of several interpretations. How incapacitated must a person be before he needs care within the meaning of the statute?
Id.
(citations omitted). The constitutional problem, then, was that the phrase “in need of care” was susceptible of multiple interpretations, which rendered the statute vague. In contrast, the meaning of “benefit as consideration” in the New Jersey Bribery Act is not open to competing interpretations. There is only one reasonable way the phrase can be understood: all benefits as consideration that are not authorized by some other law are prohibited. Thus, Defendants’ reliance on
Goldy
is misplaced.
Defendants also cite
Connally v. General Const. Co,
269 U.S. 385 , 46 S.Ct. 126 , 70 L.Ed. 322 (1926), where the Supreme Court invalidated the following section of a criminal statute as unconstitutionally vague: “That not less than the
current rate of per diem wages
in the
locality
where the work is performed shall be
*412
paid....”
Id.
at 388 , 46 S.Ct. 126 (emphasis added). The Court found that the statute “presents a double uncertainty.”
Id.
at 393 , 46 S.Ct. 126 . First, the phrase “current rate of per diem wages” was ambiguous as to what rate was required
In the first place, the words “current rate of wages” do not denote a specific or definite sum, but minimum, maximum, and intermediate amounts, indeterminately, varying from time to time and dependent upon the class and kind of work done, the efficiency of the workmen, etc., as the bill alleges is the case in respect of the territory surrounding the bridges under construction.
Id.
(citation omitted). Second, the term “locality” was open to various interpretations: “In the second place, additional obscurity is imparted to the statute by the use of the qualifying word ‘locality.’ Who can say, with any degree of accuracy, what areas constitute the locality where a given piece of work is being done?”
Id.
at 394 , 46 S.Ct. 126 . The problem with the phrase “current rate of wages” and the term “locality” was that each marked out a range of conduct with hazy boundaries— boundaries that could only be defined arbitrarily.
The phrase “benefit as consideration” does not render the New Jersey Bribery Act susceptible to a similarly ambiguous range of conduct. Since the phrase “benefit as consideration” includes all benefits paid in consideration that are not authorized by some other law,
Connally
would be relevant only if Defendants could point to a law that is ambiguous as to whether it authorizes a state legislator to accept a salary from UMDNJ as a bribe. Absent such a showing,
Connally
is inapposite.
20
Defendants’ second argument is that the New Jersey Bribery Act does not provide adequate notice for Defendants to “determine whether and when the services Sen. Bryant rendered were either qualitatively or quantitatively so inadequate so as to render acceptance and receipt of salary an illegal payment.” Gallgher’s Brief, 35; Bryant’s Brief, 13. This is a misreading of the Indictment’s
quid pro quo
bribery allegations. Defendants are not being prosecuted because Bryant’s work was deficient qualitatively or quantitatively, but because, regardless of what legitimate work he may have done, Bryant allegedly accepted his SOM salary in exchange for taking official action. The New Jersey Bribery Act clearly applies to this conduct.
Defendants’ third argument is that the vagueness of the New Jersey Bribery Act is compounded because the statute applies to log rolling among legislators, i.e., the trading of votes and other official acts, and to deals made between legislators and executive branch officials — conduct that Defendants contend is clearly permissible. This argument is unpersuasive for two reasons. First, to the extent that Defendants mount an
as applied
challenge to the New Jersey Bribery Act, the bribery scheme alleged in the Indictment is far afield from Defendants’ hypothetical applications of the New Jersey Bribery Act. Even if the statute is vague or otherwise constitutionally infirm when applied to Defendants’ hypotheticals, the conduct alleged in the Indictment falls within the heartland of the New Jersey Bribery Act. Second, even if the New Jersey Bribery Act is constitutionally overbroad because of potential application to protected First Amendment activities, that does not in any way raise notice or federalism concerns regarding the application of § 1346 to the conduct alleged in the Indictment.
*413
Thus, the New Jersey Bribery Act raises no constitutional concerns regarding the application of § 1346 to the allegations in the Indictment.
b. The Conflicts of Interest Laws
Defendants argue that the New Jersey Conflicts of Interest Laws actually authorize Bryant’s alleged conduct, and if not, that they are ambiguous as to whether Bryant’s conduct was prohibited. Defendants also argue that because the New Jersey Bribery Act only prohibits the receipt of benefits that are not authorized by law — and, on their view, it is questionable whether the New Jersey Conflicts of Interest Laws authorize the conduct alleged in the Indictment — the ambiguity of the New Jersey Conflict of Interest Laws render the New Jersey Bribery Act unconstitutionally vague as applied. These arguments lack merit, and therefore do not render the application of § 1346 to the allegations in the Indictment constitutionally suspect.
Defendants argue that N.J.S.A. 52:13D-24 either authorizes the conduct alleged in the Indictment or creates ambiguity as to whether Bryant’s conduct was unlawful. N.J.S.A. 52:13D24 provides in pertinent part:
Solicitation, receipt or agreement to receive, thing of value for service related to official duties; exceptions
a. No State officer or employee, special State officer or employee, or member of the Legislature shall solicit, receive or agree to receive, whether directly or indirectly, any compensation, reward, employment, gift, honorarium, out-of-State travel or subsistence expense or other thing of value
from any source other than the State of New Jersey,
for any service, advice, assistance, appearance, speech or other matter related to the officer, employee, or member’s official duties, except as authorized in this section.
N.J.S.A. 52:13D-24 (emphasis added). Defendants argue that, by implication, this statute authorizes compensation from “the State of New Jersey” for activities related to Bryant’s official duties — even payments from SOM in exchange for official action in Bryant’s capacity as a state legislator. Defendants rely on the interpretive maxim that the “express mention of one thing implies the exclusion of another.”
Gange-mi v. Berry,
25 N.J. 1, 11 , 134 A.2d 1 (1957). First, this is an untoward and illogical construction of the statute. If a member of the legislature fraudulently arranges a no-show job and then receives payment for the job through the “the State of New Jersey,” on Defendants view, N.J.S.A. 52:13D-24 authorizes such conduct. Second, this is an obviously unreasonable application of the maxim
expressio unius est exclusio alterius.
As the Supreme Court has recently explained: “the canon
expressio unius est exclusio alterius
does not apply to every statutory listing or grouping; it has force only when the items expressed are members of an ‘associated group or series,’ justifying the inference that items not mentioned were excluded by deliberate choice, not inadvertence.”
Barnhart v. Peabody Coal Co.,
537 U.S. 149, 168 , 123 S.Ct. 748 , 154 L.Ed.2d 653 (2003) (citation omitted). That cannon is inapplicable because the mention of “the State of New Jersey” is not part of an associated group or series in the provision at issue. More importantly, even if
ex-pressio unius est exclusio alterius
does apply, and “any compensation ...” from the State of New Jersey was “excluded by deliberate choice,”
Id.,
it hardly follows from the prohibition of N.J. S.A. 52:13D-24 that “any compensation ...” paid from “the State of New Jersey” is
unequivocally authorized.
*414
Third,
Gangemi
on which Defendants rely, clearly provides that “[t]he maxim that the express mention of one thing implies the exclusion of another is purely interpretive in aid of intention, and not a rule of law.”
Gangemi
25 N.J. at 11 , 134 A.2d 1 . Thus, that maxim cannot be reasonably applied to construe N.J.S.A. 52:13D-24 so that it conflicts with N.J.S.A. 52:13D-14, which directly addresses the conduct at issue. N.J.S.A. 52:13D-14 explicitly states that
some payments
derived from “the State of New Jersey” violate the New Jersey Conflict of Interest Laws— namely, payments offered with intent to influence an official in the performance of his public duties. N.J.S.A. 52:13D-14 provides:
No State officer or employee, special State officer or employee, or member of the Legislature shall accept from any
person,
whether
directly or indirectly
and whether by himself or through his spouse or any member of his family or through any partner or associate, any gift, favor, service, employment or offer of employment or any other thing of value which he knows or has reason to believe is offered to him with intent to influence him in the performance of his public duties and responsibilities. This section shall not apply to the acceptance of contributions to the campaign of an announced candidate for elective public office.
N.J.S.A. 52:13D-14 (emphasis added).
Defendants argue that N.J.S.A. 52:13D-14 is inapplicable to the conduct alleged in the Indictment because Bryant’s salary was received from UMDNJ, which is not a “person” within the meaning of N.J.S.A. 52:13D-14. Gallagher’s Brief, 42. N.J.S.A. 13D-13 defines “person” as “any natural person, association or corporation.” N.J.S.A. 13D-13.f. As the Government points out, New Jersey law provides for “the establishment of a body corporate and politic known as the University of Medicine and Dentistry of New Jersey.” N.J.S.A. 18A:64G-3. Defendants may be correct that UMDNJ is not a “business corporation” because it was created by statute.
Id.
But the term “person” as defined in N.J.S.A. 13D-13.Í., and thus as used in N.J.S.A. 52:13D-14, is not limited to business corporations. Thus, the Court finds that UMDNJ may constitute a “person” within the meaning of N.J.S.A. 52:13D-14, and hence Bryant’s alleged receipt of a “thing of value” from UMDNJ that he had reason to believe was offered to influence his discretion and actions as a state legislator was prohibited by N.J.S.A. 52:13D-14.
There is another reason why Bryant’s alleged conduct clearly violated N.J.S.A. 52:13D-14, even granting Defendants construction of N.J.S.A. 52:13D-24. Defendants’ argument with respect to N.J.S.A. 52:13D-24 and N.J.S.A. 52:13D-14 presupposes that the payor of Bryant’s alleged bribes was UMDNJ, and hence “the State of New Jersey” within the meaning of N.J.S.A. 52:13D-24. But the Indictment alleges that the salary payments were arranged by Gallagher: “defendant R. MICHAEL GALLAGHER used his position as Dean of SOM to put defendant WAYNE R. BRYANT on the SOM payroll, and ... caused defendant Bryant to receive a stream of corrupt payments ... from SOM, in exchange” for official action. Indictment, Counts 1-6, ¶ 18. Gallagher is obviously a “person” within the meaning of N.J.S.A. 52:13D-14. Further, N.J.S.A. 52:13D-14 clearly applies to payments arranged by Gallagher, even if they were provided indirectly as a salary from SOM: “No ... member of the Legislature shall accept from any person, whether directly
or indirectly ...
any gift, favor, service, employment or offer of employment or any other thing of value which he knows or has reason to believe is offered to him with intent to influence him in the performance
*415
of his public duties and responsibilities.” N.J.S.A. 52:13D-14 (emphasis added). Thus, the alleged
quid pro quo
bribery arrangement, whereby Bryant received a stream of payments from UMDNJ, arranged by Gallagher, falls within the terms of N.J.S.A. 52:13D-14. Moreover, because Defendants’ conduct, as alleged in the Indictment, was not authorized by N.J. S.A. 52-.13D-24, that statute in no way renders the New Jersey Bribery Act vague as applied.
Next, Defendants contend that even if Bryant’s conduct falls within the proscription of N.J.S.A. 52:13D-14, there was insufficient notice that such a violation could give rise to criminal liability. Bryant’s Brief, 14-15. Whether or not N.J.S.A. 52:13D-14 itself gives rise to criminal liability is irrelevant to the present issue, i.e., whether the New Jersey Conflicts of Interest Laws provide any constitutional reason, as a matter of federalism or fair notice concerns, why § 1346 cannot be applied to the conduct alleged in the Indictment. As explained
supra
at § II.B.3.a., Defendants’ notice that their conduct was criminal derives from §§ 1341, 1343 and 1346 as construed by the Third Circuit in
Antico .
21
5. Defendants’ Remaining Objections to the
Quid Pro Quo
Bribery Theory
In light of the above holding, the remainder of Gallagher’s arguments pertaining to the Indictment’s
quid pro quo
bribery theory are rejected. Citing
Murphy ,
Gallagher argues that the New Jersey Bribery Act does not, in and of itself, create the fiduciary duty required for an allegation of honest services fraud. Gallagher’s Brief, 13. This argument confuses the analysis of the requisite fiduciary relationship with the analysis of a whether a defendant has defrauded the public of the honest services he owes by virtue of the requisite fiduciary relationship.
Murphy
held that a local party official lacked the requisite fiduciary relationship, and that a violation of the New Jersey Bribery Act was insufficient to establish such relationship. Here, Bryant’s fiduciary relationship to the public is obvious, under both Third Circuit and New Jersey law.
See supra
at § II.B.3.d. Further, Bryant allegedly breached his fiduciary duty of honest services by engaging in a
quid pro quo
*416
bribery scheme, which Third Circuit case law establishes is a violation of § 1346, not by violating the New Jersey Bribery Act.
Next, Gallagher argues that the Indictment fails to allege that Defendants’ conduct caused Bryant to breach any of the fiduciary duties the Indictment enumerates in paragraph 16, and that merely labeling his salary payments as “corrupt” will not suffice. Gallagher’s Brief, 18-19. However, the Indictment need not allege a breach of any of the specific duties articulated in paragraph 16. Rather, what the Indictment must allege, and does allege, is that Bryant had a fiduciary relationship such that he owed a duty of honest services within the meaning of § 1346, Indictment, Counts 1-6, ¶ 16, and that the Defendants defrauded the public of such services within the meaning of § 1346 by engaging in a
quid pro quo
bribery scheme.
Id.
at ¶ 18.
Finally, Gallagher argues that even if Bryant owed a duty of honest services to the public, the Indictment fails to allege that he
deprived
the public of such services. But the Indictment alleges that Bryant and Gallagher engaged in a
quid pro quo
bribery scheme, which clearly deprives the New Jersey public of Bryant’s honest services. Gallagher’s Brief, 24 (“One way to show deprivation, of course, is to show that the defendant traded a special official action for something of value”).
6. The Failure to Disclose Theory
a. The Failure to Disclose Theory is Derivative of the
Quid Pro Quo
Bribery Theory
The Third Circuit has made clear that honest services fraud is typically committed by a
quid pro quo
bribery arrangement or “a failure to disclose a conflict of interest resulting in personal gain.”
Kemp,
500 F.3d at 279 (citation omitted);
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
Bry

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2390707. Public record. Not legal advice.