United States v. John Bencivengo

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 13-1836

___________

UNITED STATES OF AMERICA

v.

JOHN BENCIVENGO,

Appellant

On Appeal from the United States District Court

for the District of New Jersey

(District Court No.: 3-12-cr-00429-001)

District Court Judge: Honorable Anne E. Thompson

Argued on March 6, 2014

(Opinion filed: April 23, 2014)

Before: RENDELL, SMITH and HARDIMAN,

Circuit Judges

Jerome A. Ballarotto, Esquire (Argued)

143 Whitehorse Avenue

Trenton, NJ 08610

Counsel for Appellant

Mark E. Coyne, Esquire

Steven G. Sanders, Esquire (Argued)

United States Attorney

Office of the United States Attorney

970 Broad Street

Room 700

Newark, NJ 071020

Counsel for Appellee

OPINION

RENDELL, Circuit Judge:

Appellant John Bencivengo, former Mayor of

Hamilton Township, New Jersey, was convicted of violating,

inter alia, the Hobbs Act, 18 U.S.C. § 1951(a) and § 2, and

the Travel Act, 18 U.S.C. § 1952(a)(1) and (3) and § 2, for

accepting money from Marliese Ljuba in exchange for

agreeing to influence members of the Hamilton Township

School Board to refrain from putting the School District’s

insurance contract up for competitive bidding. For the

2

reasons set forth below, we will affirm the judgment of the

District Court.

I. Background

Bencivengo was elected Mayor of Hamilton

Township, New Jersey in 2007. Prior to his election,

Bencivengo served on the Hamilton Township School Board

and was a prominent Hamilton Township politician, serving

as Chairman of the local Republican Party. Bencivengo was

reelected as Mayor in 2011.

Bencivengo was close friends with Marliese Ljuba,

whom he had known since 2004.1 Ms. Ljuba was the

insurance broker for the Hamilton Township School District.

She personally earned between $600,000 and $700,000 in

commissions from insurance contracts with the School

District in 2011 alone. In 2011, the School District’s

insurance contracts were up for renewal. One School Board

member, Stephanie Pratico, urged the School Board to place

the contract up for competitive bidding, rather than to simply

renew the existing contract held by Ms. Ljuba’s firm.

In March of 2011, Bencivengo, who was facing

financial difficulties, asked the Township’s Director of

Community Planning and Compliance, Robert Warney, to

approach Ms. Ljuba about providing him some financial

assistance. In May 2011, the two met, and ultimately Ms.

1

These facts are largely gleaned from the trial testimony of

Ms. Ljuba and from the FBI’s recorded conversations

between Bencivengo and Ms. Ljuba. They are substantially

uncontroverted by Mr. Bencivengo, who did not testify at

trial.

3

Ljuba agreed to provide Bencivengo with $5,000. There was

some discussion of the money taking the form of a loan;

however, Ms. Ljuba suggested that, instead, Bencivengo

convince Ms. Pratico not to put the School Board’s insurance

contract up for bid. Ms. Ljuba believed that Bencivengo

could influence Ms. Pratico because “[t]he [M]ayor is the

head of the [R]epublican party in Hamilton Township. He

has a lot of political influence over anyone in a lower position

in the township government.” (Supp. App. 103.)

Bencivengo agreed to help Ms. Ljuba with Ms. Pratico.

Worried about raising alarms at the bank with large cash

withdrawals, Ms. Ljuba asked Bencivengo if she could write

him a check instead of giving him cash. Bencivengo did not

want a check made out to him, so they agreed that Ms.

Ljuba’s husband would write a check to Mr. Warney’s wife,

and put in the memo line that the check was for a “cherry

bedroom set.”

On June 29, 2011, Bencivengo approached Ms. Ljuba

again, asking for her assistance in helping him pay his

property taxes. By this time, Ms. Ljuba was cooperating with

the FBI and was recording her conversations with

Bencivengo. Ms. Ljuba again agreed to assist him, stating,

“You help me with Pratico, you got anything because you

know I am gonna need that down the road.” (Supp. App.

979.) Ms. Ljuba meant that Bencivengo would “talk to [Ms.

Pratico] and influence her not to direct the school district to

go out to bid for the brokerage contract.” (Supp. App. 138.)

Bencivengo responded that he was “helping you as much as I

can.” (Supp. App. 138.)

On July 11, 2011, Ms. Ljuba and Bencivengo had

lunch in Hamilton. Ms. Ljuba told Bencivengo that she

4

wanted to select the next person to fill a vacant seat on the

School Board, and had a particular woman in mind—the

sister of an insurance company representative who was a

political unknown in Hamilton Township. Bencivengo told

Ms. Ljuba that he would approve the woman. Ms. Ljuba

testified that she needed his approval because, “in Hamilton it

is practice that if you want a position on the school district

and you’re a [R]epublican you would go to the [M]ayor and

ask for his approval.” (Supp. App. 142.) The two also

discussed Ms. Ljuba’s planned payment to Bencivengo. The

two agreed that the money would be exchanged during their

upcoming trip to Atlantic City, because they could make it

seem as though Bencivengo had won the money gambling.

On July 28, 2011, Bencivengo met Ms. Ljuba in her

hotel room in Atlantic City, and she gave him $5,000 in $100

bills. Bencivengo informed Ms. Ljuba that he had already

talked to Ms. Pratico, and had urged Ms. Pratico that “you

have to support those who support you,” reminding her that

he had backed her when she wanted to run for School Board.

(Supp. App. 159.) Bencivengo also stated, “I’m gonna give

[Pratico] a call and see if I can get rid of her off the school

board, which would be huge, and get her in the [State]

Assembly . . . .” (Supp. App. 1005.) Bencivengo meant that

he intended to encourage Ms. Pratico to run for a seat in the

State Assembly. (Bencivengo Br. 17.)

It is undisputed that, as Mayor, Bencivengo had no

statutory power or authority over the School Board. He had

no vote on the Board, nor any official role in choosing

members of the School Board.

Bencivengo was charged with two counts of violating

the Hobbs Act and two counts of violating the Travel Act, as

5

premised on the New Jersey bribery statute, N.J.S.A. 2C:27-

2.2 On October 12, 2012, approximately one month before

trial began, the Government submitted its proposed jury

instructions. With respect to the Hobbs Act counts, the

instructions stated, in relevant part, as follows:

Extortion under color of official

right means that a public official

induced, obtained, accepted, or

agreed to accept a payment to

which he was not entitled,

knowing that the payment

accepted or to be accepted was

made in return for taking,

withholding or influencing official

acts. . . . The Government is not

required to prove that the public

official actually possessed the

official power to guarantee, deny,

or influence any official actions.

It is enough to show that [Ljuba]

reasonably believed that the

public official had the actual,

residual, or anticipated official

power to help [Ljuba] with

respect to matters pending before

a government agency.

* * *

2

Bencivengo was also charged with money laundering in

violation of 18 U.S.C § 1956(a)(1)(B)(i) and § 2, but has not

appealed his conviction on that charge.

6

A public official commits

extortion if he intentionally

obtains, accepts, or agrees to

accept money or other valuable

benefit to which he was not

entitled, knowing that the

payment was made in return for

taking, withholding, or

influencing official action.

Official action means any action

by an official relating to their

employment or function as a

public servant, to include using

one’s influence with other

government officials, or

expediting treatment of the

payor’s business with

government.

Government’s Proposed Jury Instructions, Case 3:12-cr-

00429-AET (Doc. 20-1, at 19-22) (hereinafter, Gov. Proposed

Jury Instructions) (emphasis added). Bencivengo did not

object to the Government’s proposed instructions; nor did he

file his own proposed jury instructions.

At the close of the Government’s case, Bencivengo’s

counsel moved for judgment of acquittal under Fed. R. Crim.

P. 29, on the ground that “the United States has failed to

provide sufficient evidence that a reasonable jury can

conclude that Mr. Bencivengo accepted this money in

exchange for an exercise of his official duties as Mayor of

Hamilton Township.” (Supp. App. 483.) The Government

7

opposed the motion, arguing that “[i]t is enough to show that

the payor reasonably believed that the public official had the

actual, residual or anticipated official power to help the payor

with respect to matters pending before a government agency.”

(Supp. App. 484-85.) The District Court denied

Bencivengo’s motion, stating that:

The fact that [Bencivengo] was

the Mayor of Hamilton Township

and not the school board president

or chairman does not matter. The

astounding testimony that has

been presented in this case of how

the . . . interconnectedness

between the officials of the

township, the members of the

school board, the schemes to

place persons from office in

Hamilton Township into the New

Jersey State Assembly, all

pointing to this pervasive

influence and power actively

exercised, it is surely a jury

question as to whether the

payments in this case were made

to affect official conduct of the

defendant.

(Supp. App. 487-88) (emphasis added).

At the close of evidence, the District Court instructed

the jury in accordance with the proposed jury instructions

filed by the Government. (Supp. App. 637-39.) On

8

November 20, 2012, the jury returned a verdict of guilty on

each count of the Indictment.

On appeal, Bencivengo argues that the District Court

erred by failing to grant his motion for judgment of acquittal.

With respect to his conviction under the Hobbs Act, he urges

that the Government failed to identify any official act that

was involved. He argues that, as Mayor, he had no official

authority over actions of the School Board, and therefore, had

no actual power to replace Ms. Pratico or to otherwise ensure

that Ms. Ljuba retained the insurance contract with the School

District. Bencivengo challenges his conviction under the

Travel Act for similar reasons. He states that, in agreeing to

exercise his influence over members of the School Board, he

was not “performing a governmental function,” as required by

the New Jersey bribery statute that served as the predicate for

his Travel Act conviction.

In addition, Bencivengo urges that his convictions

under the Hobbs Act and Travel Act require proof of the same

elements, and that, therefore, his conviction on both counts

violates the Double Jeopardy Clause of the Fifth Amendment.

Finally, he argues that the District Judge’s interruptions and

criticism of defense counsel during the trial unduly prejudiced

the jury against him, requiring reversal.

II. Discussion

A. Hobbs Act

1. Motion for Judgment of Acquittal

9

We exercise plenary review over Bencivengo’s claim

that the District Court erred in failing to grant his motion for

judgment of acquittal on the Hobbs Act counts and apply the

same standard as the District Court. United States v. Brodie,

403 F.3d 123, 133 (3d Cir. 2005). Accordingly, we “‘review

the record in the light most favorable to the prosecution to

determine whether any rational trier of fact could have found

proof of guilt beyond a reasonable doubt based on the

available evidence.’” Id. (quoting United States v. Smith, 294

F.3d 473, 476 (3d Cir. 2002)).

The Hobbs Act makes it a crime to “obstruct . . . delay.

. . or affect . . . commerce or the movement of any article or

commodity in commerce, by robbery or extortion.”

“Extortion” is defined as “the obtaining of property from

another, with his consent, induced by wrongful use of actual

or threatened force, violence, or fear, or under color of

official right.” 18 U.S.C. §§ 1951(a), (b)(2). The

Government urged that Bencivengo acted “under color of

official right.” On appeal, Bencivengo argues that his

position as Mayor of Hamilton Township gave him no official

power over the School Board and he should, therefore, have

been acquitted, as he did not act “under color of official

right.” Similarly, he argues that Ms. Ljuba, a savvy operator

well-versed in Hamilton Township politics, could not have

reasonably believed he had the power to cause the School

Board to decide against putting its insurance contract up for

competitive bidding. Accordingly, he argues, the

Government has failed to establish that he acted “under color

of official right.”

The Government contends that Bencivengo’s argument

is foreclosed by our opinion in United States v. Mazzei, 521

10

F.2d 639 (3d Cir. 1975) (en banc), cert. denied, 423 U.S.

1014 (1975). In that case, defendant Mazzei, a Pennsylvania

state senator, used his influence to arrange for two state

agencies to rent office space owned by property rental

company BMI. As a legislator, Mazzei had no actual power

over the leasing of rental property by state agencies. Mazzei

informed a representative of BMI that “it was the practice on

all state leases that a ten percent of the gross amount of the

rentals would be paid to a senate finance re-election

committee.” Id. at 641. BMI paid the money to Mazzei in

cash.

On appeal, Mazzei argued that the payments made to

him did not violate the Hobbs Act, as they merely represented

BMI’s “voluntary purchase of his influence in an area in

which he never pretended to have any official power.” Id. at

643. We rejected this argument, holding that, “in order to

find that defendant acted ‘under color of official right,’ the

jury need not have concluded that he had actual de jure power

to secure grant of the lease as long as it found that [BMI]

held, and defendant exploited, a reasonable belief that the

state system so operated that the power in fact of defendant’s

office included the effective authority to determine recipients

of the state leases here involved.” Id. (emphasis added). We

stated that the government had presented “sufficient evidence

to justify a finding by the jury that [BMI] could reasonably

have believed that as a concomitant of his official position

defendant possessed not mere influence over state leases but

in fact had effective power to determine to whom these leases

were awarded even though his office gave him no such de

jure power.” Id. at 644 (emphasis added).

11

Bencivengo argues that Mazzei is not controlling

because our holding in that case turned on the issue of BMI’s

reasonable belief that Mazzei had “effective power” to

determine the outcome of the decision, and “not mere

influence.” Id. He urges that, in the instant case, the

Government does not contend that Ms. Ljuba believed

Bencivengo to have “effective power” over the School

Board’s decision regarding whether to put the insurance

contract up for bid—indeed, Ms. Ljuba testified to that effect.

Instead, the Government rests its case on Ms. Ljuba’s

purchase of, and belief in, Bencivengo’s influence over the

members of the School Board by virtue of his position as

Mayor.3

While we find some merit in Bencivengo’s argument

that our holding in Mazzei did not include situations where

the victim of the extortion, here Ms. Ljuba, believed that the

public official had only influence, and not “effective power”

over the decision, that does not foreclose us from extending

its reach. We have not previously had occasion to determine

whether the power to influence by virtue of one’s office

3

See, e.g., Gov. Br. 23 (“Here, the evidence allowed a

rational jury to find that Bencivengo accepted payments from

Ljuba in exchange for promising to use his influence as

mayor to intervene with school board members . . . .”); id. at

30 (“Here, there was ample evidence from which a rational

jury could infer that Ljuba reasonably believed that

Bencivengo had the authority to perform his end of the

corrupt bargain, i.e., influencing school board members.”); id.

at 31 (“what matters was the reasonable belief in

Bencivengo’s official influence over school board members”)

(emphasis in original).

12

satisfies the “under color of official right” requirement.

However, other courts of appeals have explicitly held that the

mere agreement to exercise influence is sufficient to sustain a

conviction for extortion under the Hobbs Act. For example,

in United States v. Loftus, 992 F.2d 793 (8th Cir. 1993), a

county commissioner was convicted of Hobbs Act extortion

for accepting a bribe in exchange for agreeing to influence the

city council’s decision to rezone a property for a shopping

center development. Though he was an official of the county,

and not the city, Loftus told an undercover FBI informant that

obtaining the votes for rezoning “would simply be a matter of

swapping intergovernmental favors.” Id. at 795. On appeal,

Loftus argued that he did not accept the money “under color

of official right” because he lacked official authority over the

zoning process, and because there was no evidence that the

development’s sponsors believed that he could cause the

property to be rezoned. Id. at 796. The Court of Appeals

upheld Loftus’s conviction, stating that, “[a]ctual authority

over the end result—rezoning—is not controlling if Loftus,

through his official position, had influence and authority over

a means to that end.” See also United States v. D’Amico, 496

F.3d 95, 102 (1st Cir. 2007) (“A reasonable jury thus could

have concluded that D’Amico explicitly promised . . . that, in

exchange for the $2,500 payment, he would use his influence

as a city councilor to pressure the traffic department to pursue

the road-widening project. This conclusion is sufficient to

ground a conviction.”); United States v. Bibby, 752 F.2d

1116, 1128 (6th Cir. 1985); cf. United States v. Blackwood,

768 F.2d 131, 135-36 (7th Cir. 1985) (sustaining a Hobbs Act

conviction where “a jury could have found that Agent Ries

reasonably believed that appellant had the power, through his

official position and the connections and contacts it gave him

13

. . . , to influence the judicial decisions in the cases for which

appellant received bribes.”).4

We agree with the reasoning of our sister courts of

appeals. There is no doubt that Bencivengo had no actual de

jure or de facto power over the award of School Board

insurance contracts; nor is there evidence that Ms. Ljuba

believed he had such power. However, the record is

sufficient for a reasonable jury to find that Bencivengo’s

position as Mayor of Hamilton Township gave him influence

over members of the School Board, and that Ms. Ljuba

believed that he had such influence. Accordingly, to the

extent our decision in Mazzei does not reach the particular

facts of this case, we now hold that where a public official

has, and agrees to wield, influence over a governmental

decision in exchange for financial gain, or where the official’s

position could permit such influence, and the victim of an

extortion scheme reasonably believes that the public official

wields such influence, that is sufficient to sustain a conviction

under the Hobbs Act, regardless of whether the official holds

any de jure or de facto power over the decision. Accordingly,

4

Other circuits have held similarly in the context of other

federal bribery statutes. See, e.g., United States v. Carson,

464 F.2d 424, 433 (2d Cir. 1972) (conspiracy to travel in

interstate commerce to defraud the United States in violation

of 18 U.S.C.S. § 371) (“There is no doubt that federal bribery

statutes have been construed to cover any situation in which

the advice or recommendation of a Government employee

would be influential, irrespective of the employee’s specific

authority (or lack of same) to make a binding decision.”);

United States v. Ring, 706 F.3d 460 (D.C. Cir. 2013) (illegal

gratuity statute, 18 U.S.C. § 201 et seq.).

14

we reject Bencivengo’s argument that his lack of actual or

“effective power” over the School Board is fatal to his

conviction under the Hobbs Act. Similarly, it is enough that

Ljuba believed that Bencivengo’s position gave him

influence, and not “effective power,” over the School Board’s

decision with regard to the insurance contract.5

2. Jury Instructions

Bencivengo’s argument is also foreclosed on another

ground. Specifically, he failed to object to the Government’s

proposed jury instructions, which were filed well before trial

commenced, and which were replete with statements

indicating that a public official’s agreement to exercise

influence over a governmental decision (or the victim’s

reasonable belief in the official’s ability to exercise such

influence) is sufficient to find a violation of the Hobbs Act.

Bencivengo did not object to the proposed instructions at the

time they were filed by the Government; nor did he object to

5

Bencivengo argues that the coercion element of Hobbs Act

extortion cannot be satisfied where the purported victim of

the extortion scheme (here, Ms. Ljuba) was not threatened or

coerced in any way. This argument is foreclosed by settled

precedent. See United States v. Manzo, 636 F.3d 56, 65 (3d

Cir. 2011) (“In essence, when proceeding under a ‘color of

official right’ theory, the ‘misuse of a public office is said to

supply the element of coercion.’”); Mazzei, 521 F.2d at 644

(in a Hobbs Act prosecution based on an action under color of

official right, “any element of coercion that may be required

to establish extortion under the Hobbs Act is supplied by the

misuse of the defendant’s official power.”).

15

them at the time they were read to the jury in a form

substantially identical to what the Government had proposed.

Where a party fails to object to jury instructions, we

review whether the instructions stated the correct legal

standard for plain error. United States v. Elonis, 730 F.3d

321, 327 n.2 (3d Cir. 2013). While, as noted above, we may

not have confronted the precise situation presented in this

case, other circuits have consistently held that an agreement

by a public official to exercise influence over a governmental

decision, or the victim’s reasonable belief in the official’s

ability to exercise such influence, is sufficient to support a

conviction under the Hobbs Act. Indeed, the Government

cited several of these cases in support of its proposed jury

instructions. See Gov. Proposed Jury Instructions, at 21 n.15

(citing, inter alia, Loftus and Bibby). As described supra, we

believe the reasoning of these cases is sound, and indeed

Bencivengo has failed to point to any contrary precedent.

Accordingly, we cannot say that the District Court committed

plain error in accepting the Government’s unopposed

proposed jury instructions. Moreover, when considered for

sufficiency of the evidence, the record clearly supports the

jury’s conviction on the instructions that were given to it.

B. Travel Act

Bencivengo also claims that the District Court erred by

denying his motion for judgment of acquittal on the Travel

Act charges because he was not “performing a governmental

function” when accepting money from Ms. Ljuba in exchange

for his agreement to exert his influence over the School

Board. We apply plenary review. Brodie, 403 F.3d at 133.

16

A Travel Act violation occurs when an individual

“travels in interstate . . . commerce or uses the mail or any

facility in interstate . . . commerce, with intent to (1)

distribute the proceeds of any unlawful activity; or . . . (3)

otherwise promote, manage, establish, carry on, or facilitate

the promotion, management, establishment, or carrying on, of

any unlawful activity . . . .” 18 U.S.C. § 1952(a)(1), (3). The

Travel Act includes as an “unlawful activity”, “(2) extortion,

bribery, or arson in violation of the laws of the State in which

committed or of the United States . . . .” Here, the

Government bases its Travel Act charge on Bencivengo’s

interstate telephone calls with Ms. Ljuba and his causing Ms.

Ljuba to travel from her home in Delaware to New Jersey to

violate the New Jersey Bribery in Official and Political

Matters offense, which provides, in relevant part:

A person is guilty of bribery if he

. . . 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

17

of a public servant or party

official . . . .

It is no defense to prosecution

under this section that a person

whom the actor sought to

influence was not qualified to act

in the desired way whether

because he had not yet assumed

office, or lacked jurisdiction, or

for any other reason.

N.J. Stat. Ann. § 2C:27-2. The statute defines a “public

servant” as “any officer or employee of government,

including legislators and judges, and any person participating

as juror, advisor, consultant or otherwise, in performing a

governmental function . . . .” N.J. Stat. Ann. § 2C:27-1(g).

Bencivengo’s claim that he cannot be convicted under

the statute because he was not “performing a governmental

function” in putting pressure on School Board members

essentially amounts to a rehashing of his argument that he did

not have any actual power over the award of School Board

insurance contracts.6 The argument is even less compelling

6

The Government argues that the phrase “performing a

governmental function” modifies the phrase “any person

participating as a juror, advisor, consultant, or otherwise,”

and does not limit the activities of “public servant[s]” or

“officer[s] or employee[s] of government.” See Gov. Br. 41.

The Government is likely correct, and in any case, it is clear

that Bencivengo was attempting to influence a “governmental

function.”

18

here, where the state statute makes clear that the lack of

actual jurisdiction over the decision is no defense to the

crime. See, e.g., State v. Schenkolewski, 693 A.2d 1173 (N.J.

Super. Ct. App. Div. 1997) (“[I]t is sufficient if the recipient

created the understanding with the briber that he could

influence matters in connection with an official duty, whether

or not he was capable of actually effecting such an action.”);

State v. Sherwin, 317 A.2d 414, 422 (N.J. Super. Ct. App.

Div. 1974) (affirming conviction under predecessor bribery

statute where Secretary of State had accepted a bribe from a

contractor in return for urging the Secretary of Transportation

to reject the lowest bid on a road project and to reopen

bidding).7 Accordingly, we reject Bencivengo’s claim that

his Travel Act conviction must be reversed because he was

not “performing a governmental function” when accepting

bribes from Ms. Ljuba.

7

Bencivengo relies on United States v. Dansker, 537 F.2d 40

(3d Cir. 1976), where we reversed a Travel Act conviction

based on the predecessor to the current New Jersey bribery

statute, on the ground that the government had failed to show

that the defendant had any actual or apparent influence over

any official decisions regarding a commercial development

project, or that the alleged bribers believed he had such

influence. In Dansker, unlike in the present case, it was

unclear from the record whether the developers were even

aware that the defendant held an official position. Id. at 49-

50. Here on the other hand, it is clear that Ms. Ljuba at least

believed that Bencivengo had influence over the School

Board, and there is no question that she knew Bencivengo

was the Mayor. Accordingly, Bencivengo’s reliance on

Dansker is misplaced.

19

C. Double Jeopardy

Bencivengo argues that his convictions for Hobbs Act

extortion and Travel Act bribery are multiplicitous because

they were based on essentially the same conduct on his part,

and therefore violate the Double Jeopardy Clause of the Fifth

Amendment. Because Bencivengo did not object on this

basis in the proceedings below, we review for plain error.

United States v. Miller, 527 F.3d 54, 60 (3d Cir. 2006).

“Where the same act or transaction constitutes a

violation of two distinct statutory provisions, the test to be

applied to determine whether there are two offenses or only

one, is whether each provision requires proof of a fact which

the other does not.” Blockburger v. United States, 284 U.S.

299 (1932). The Government correctly points out that the

Travel Act requires the Government to prove that the

defendant traveled (or caused someone to travel) in interstate

commerce, or used the mail or any facility in interstate

commerce, whereas a Hobbs Act violation occurs if the

defendant “obstructs, delays, or affects commerce or the

movement of any article or commodity in commerce.” The

Hobbs Act does not require proof of interstate travel or the

use of the mail or any other interstate facility, while the

Travel Act does not require proof of extortion that affects

interstate commerce. Rather, by its terms, the Travel Act

would theoretically apply if an individual travelled across

state lines in order to commit a purely intrastate act of

extortion or bribery.8

8

It is true that some courts have found that a defendant’s act

of crossing state lines to commit a crime is relevant to the

20

Indeed, several courts of appeals, including our own,

have upheld convictions under both the Hobbs Act and Travel

Act based on the same conduct. See, e.g., United States v.

Somers, 496 F.2d 723 (3d Cir. 1974); United States v.

Bornscheuer, 563 F.3d 1228 (11th Cir. 2009); United States

v. Millet, 123 F.3d 268 (5th Cir. 1997); United States v.

Shields, 999 F.2d 1090 (7th Cir. 1993); United States v.

Hollis, 725 F.2d 377 (6th Cir. 1984); United States v. Walsh,

700 F.2d 846 (2d Cir. 1983); United States v. Billups, 692

F.2d 320 (4th Cir. 1982); United States v. Hathaway, 534

F.2d 386, 397 (1st Cir. 1976). And we are unaware of any

cases in which a court has found that a defendant may not be

prosecuted under both the Hobbs Act and Travel Act for the

same conduct. Accordingly, it cannot be said that the District

Court’s failure to sua sponte raise and sustain a Double

Jeopardy challenge to Bencivengo’s convictions under the

Hobbs Act and Travel Act was plain error.

D. Conduct of the Trial Judge

Bencivengo maintains that the District Court denied

him a fair trial by interrupting defense counsel’s cross-

Hobbs Act jurisdictional analysis. However, these courts

have typically been careful to note that such interstate travel

does not, by itself, suffice to establish jurisdiction under the

Hobbs Act, which still requires a de minimis effect on

interstate commerce. See, e.g., United States v. Le, 256 F.3d

1229, 1237 (11th Cir. 2001); United States v. Kaplan, 171

F.3d 1351, 1356 (11th Cir. 1999).

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examination of Ms. Ljuba, chastising him in the presence of

the jury, and criticizing him for asking questions that,

according to the District Judge, were compound or otherwise

unclear. We employ the plain error standard with respect to

Bencivengo’s arguments regarding the conduct of the District

Judge, as no objection was lodged at trial. United States v.

Nobel, 696 F.2d 231, 237 (3d Cir. 1982).

The Supreme Court has described the high bar a

litigant must meet to demonstrate that the conduct of the trial

judge has prejudiced the trial against him. In Liteky v. United

States, 510 U.S. 540, 555-56 (1994), the Court stated that:

[J]udicial remarks during the

course of a trial that are critical or

disapproving of, or even hostile

to, counsel, the parties, or their

cases, ordinarily do not support a

bias or partiality challenge. They

may do so if they reveal an

opinion that derives from an

extrajudicial source; and they will

do so if they reveal such a high

degree of favoritism or

antagonism as to make fair

judgment impossible. . . . Not

establishing bias or partiality,

however, are expressions of

impatience, dissatisfaction,

annoyance, and even anger, that

are within the bounds of what

imperfect men and women, even

after having been confirmed as

22

federal judges, sometimes display.

A judge’s ordinary efforts at

courtroom administration—even a

stern and short-tempered judge’s

ordinary efforts at courtroom

administration—remain immune.

However high the bar, the judge may not assume an advocacy

role or make it “‘clear to the jury that the court believes the

accused is guilty.’” United States v. Beaty, 722 F.2d 1090,

1093 (3d Cir. 1985) (quoting Nobel, 696 F.2d 237); see also

United States v. Wilensky, 757 F.2d 594, 598 (3d Cir. 1985)

(“By assuming the roles of judge, attorney, and witness in the

same proceeding the trial judge abandons the impartiality

with which he is charged.”). See, e.g., Reserve Mining Co. v.

Lord, 529 F.2d 181 (8th Cir. 1976) (reversing where the trial

judge conducted extensive examination of witnesses,

commented on evidence and on the credibility of defense

witnesses, and criticized the ability of plaintiff’s counsel);

Lyle v. Renico, 470 F.3d 1177, 1180-81 (6th Cir. 2006);

United States v. Dellinger, 472 F.2d 340 (7th Cir. 1972).

Examining the record as a whole, we cannot say that

the District Judge’s actions were improper. The District

Judge did not conduct any examination of defense counsel or

cross-examine any defense witnesses. Nor did the District

Judge lead Ms. Ljuba or express an opinion on any evidence

presented by the defense. The most that can be said is that

the District Judge admonished defense counsel on several

occasions to clarify questions that perhaps did not need to be

clarified, as they were clearly understood by Ms. Ljuba. See

United States v. Hynes, 467 F.3d 951 (6th Cir. 2006) (no

reversible error where the district judge, among other things,

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“interrupted defense counsel to ask him to clarify his

questions, to avoid an argumentative tone with a witness,

[and] to proceed to a different topic because the one in

question had been exhausted . . . .”). In addition, the District

Judge twice reminded the jury that it was not to draw any

inference from her comments as to whether the Court held

any opinion as to Bencivengo’s guilt. (Supp. App. 615-16,

629.) See United States v. Ottaviano, 738 F.3d 586, 596 (3d

Cir. 2013) (noting the relevance of curative instructions in

determining whether the court’s remarks prejudiced the

defendant); United States v. Price, 13 F.3d 711, 723-24 (3d

Cir. 1994) (finding no reversible error where “there [was] no

suggestion . . . that the judge inappropriately participated in

the questioning of witnesses” and where “the judge charged

the jury that they were not to rely on their perception of his

beliefs.”). We conclude that the District Judge’s conduct did

not constitute reversible error.9

III. Conclusion

For the reasons stated above, we will affirm the

judgment of the District Court in all respects.

9

Moreover, even if a trial judge’s conduct is improper, it may

still constitute harmless error where the evidence adduced at

trial is so overwhelming that the trial judge’s behavior was

immaterial to the jury’s conclusion. See Ottaviano, 738 F.3d

at 597-98; Wilensky, 757 F.2d at 598 (noting that the judge’s

conduct was harmless when considered in light of the

“overwhelming testimony” presented by the government).

Here, the evidence of guilt was overwhelming, and indeed

Bencivengo does not even dispute the key facts underlying

his convictions.

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