Petition for Writ of Certiorari — Bonito v. United States

Supreme Court, U.S.

(1) FILED

95° 863 de 1195

Noggrice OF THE CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1995

BENJAMIN BONITO, JR..,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

PATRICK M. WALL

Counsel of Record for Petitioner

36 West 44th Street

New York, New York 10036

Of Counsel: (212) 840-7188

STEVEN B. DUKE

127 Wall Street

New Haven, Connecticut 0651 |

(203) 432-4959

QUESTION PRESENTED

Whether 18 U.S.C. §666 is applicable to the payment of a

bribe or gratuity to an agent of a local organization when the

bribe or gratuity cannot influence that agent’s acts relating to

the financial or proprietary interest of that organization.

Re Ey Ee

TABLE OF CONTENTS

Question Presented .............0.scssescsecerecesessesscesseserseeees i

SDL csepanesnsnsteccones Vv

Statutory Provision Involved..............::ssseseseeseeeseseeees

RE

es ccantbiinecnsen

© WwW WwW NY N

Reasons for Granting the Petition .............:scsssseeeeees

A. Section 666 Was Intended To Apply Solely

to a Bribe or Gratuity Paid to an Agent of a

Local Organization Receiving Federal Funds

When the Bribe or Gratuity Could Affect the

Finances or Proprietary Interests of that

Organization

FINI «a sscensesesecrersveqeocesccsoeroeveseoess 5

2. Legislative History.............ccssesserssssesees 6

Bi oI a caeetneaveoreventecevevenernequeenseceveses 8

I oss cassbervesnsetneetbnesescernctncnorweees 8

SESE DEA SI ETITO 10

Appendix (Opinion of the Second Circuit)................+: A-|

v

TABLE OF AUTHORITIES

Cases Page

Dowling v. United States, 473 U.S. 207 (1985)........-+. 10

Rewis v. United States, 401 U.S. 808 (1971).........:+++ 8

United States v. Bass, 404 U.S. 336 (1971)... 8

United States v. Cicco, 938 F.2d 441 (3d Cir. 1991)... 5,8

United States v. Del Toro, 513 F.2d 656 (2d Cir.),

cert. denied, 423 U.S. 826 (1975).....cscesseseeerersees 7

United States v. Enmons, 410 U.S. 396 (1973) .........-. 8

United States v. Hinton, 683 F.2d 195 (7th Cir. 1982,

aff'd sub nom., Dixson v. United States, 465 U.S.

482 (1984) .....cecsscessesessssessceeesenenenssnensessnsesensncenescanens 7

United States v. Mosley, 659 F.2d 812 (7th Cir. 1981) 7

United States v. er 11 F.3d 119 (9th Cir.

1993)...ecccceccssscecssssssosecsvrs: seserecnssecnssscnsnnsesscessaressecasees 5

Statutes and Rules

Conn. Penal Code §§53a-146(3) and 147(a) ..........:++ 8,9

18 U.S.C. §371 ....cecocscccsssssssssarssesrecscerscasersssssoserersenescers 2

U.S.C. §666 .....cecssscsssssessseessecsssensesenenensasesseneenenssenensneans passim

S. Rep. No. 225, 98th Cong., 2d Sess., 1984 U.S.

Code Cong. & Admin. News 3182........0::s:ssssssereee 6

No.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1995

BENJAMIN BONITO, JR.,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Benjamin Bonito, Jr. (“Bonito”) respectfully petitions for a

writ of certiorari to review the judgment and opinion of the

United States Court of Appeals for the Second Circuit in this

case.

OPINION BELOW

The opinion of the Second Circuit, officially reported at 57

F.3d 167, is set forth in the Appendix annexed hereto.

JURISDICTION

The Second Circuit entered its judgment on July 9, 1995. A

timely petition for rehearing was denied on September 12,

1995. The jurisdiction of this Court is invoked under 28

U.S.C. §1254(1).

STATUTORY PROVISION INVOLVED

The pertinent provisions of 18 U.S.C. §666, under which

Bonito was convicted,’ read as follows:

§666. Theft or bribery concerning programs receiv-

ing federal funds.

(a) Whoever, if the circumstance described in sub-

section (b) of this section exists ---

** *

(2) corruptly gives, offers, or agrees to give

anything of value to any person, with intent to

influence or reward an agent of an organization

or of a ... local ... government, or any agency

thereof, in connection with any business, trans-

action, or series of transactions of such organi-

zation, government, or agency involving any-

thing of value of $5,000 or more,

shall be fined under this title, imprisoned not more

than 10 years, or both.

(b) The circumstance referred to in subsection (a) of

this section is that the organization, government, or

agency receives, in any one year period, benefits in

' Bonito was also convicted, with his co-defendant Joseph DeMatteo, of

violating 18 U.S.C. §371 for conspiring to violate Section 666. DeMatteo,

involved neither in the appeal to the Second Circuit nor in this petition,

was also convicted under 18 U.S.C. §666(a)(1)(B) --- the mirror-image of

subdivision(a\(2). Bonito was the alleged offerer of the bribe, DeMatteo

its alleged recipient.

3

excess of $10,000 under a Federal program involv-

ing a grant, contract, subsidy, loan, guarantee, in-

surance, or other form of Federal assistance.

** *

(d) As used in this section ---

(1) the term “agent” means a person authorized

to act on behalf of another person or a gov-

ernment and, in the case of an organization or

government, includes a servant or employee,

and a partner, director, officer, manager, and

representative;

(2) the term “government agency” means a

subdivision of the executive, legislative, judi-

cial, or other branch of government, including

a department, independent establishment,

commission, administration, authority, board,

and bureau, and a corporation or the legal en-

tity established, and subject to control, by a

government or governments for the execution

of a governmental or intergovernmental pro-

gram; ...

THE INDICTMENT

The count charging Bonito with a substantive violation of

18 U.S.C. §666 read, in pertinent part, as follows:

From October 1990 through June 1992 ... BO-

NITO ... did knowingly and corruptly give, offer

and agree to give a thing of value ... to ... DeMatteo,

... With intent to influence or reward DeMatteo, an

agent of local government, that is, the City of New

Haven, in connection with the business, a transac-

tion and a series of transactions of said government

involving a thing of value of $5,000 and more.

STATEMENT OF FACTS

The relevant facts of this case are these:

4

Bonito is a landlord and real estate developer in the New

Haven area. He was indicted for giving a car bribe or gratuity

to his co-defendant and long-time friend Joseph DeMatteo,

who was the Director of Real Estate Services for the City of

New Haven.

The New Haven Housing Authority (““NHHA”) is an or-

ganization created by Connecticut statute’ which administers

housing projects funded by the United States Department of

Housing and Urban Development (HUD), and operates under

close HUD supervision. The NHHA exists independently of

the local government of New Haven.

In 1989, the NHHA decided to abandon a high-rise project

and to relocate its mainly black residents to single-family

units throughout New Haven in racially-mixed neighbor-

hoods. The plan sparked controversy in New Haven and, in

1990, the NHHA agreed to cooperate with New Haven by

joining with it in the creation of a committee (some of whose

members would be appointed by New Haven’s mayor) which

would identify suitable sites for the relocation efforts. The

mayor appointed DeMatteo as one of his representatives on

that special committee.’

In October of 1990, Bonito bought a car for $9,500, but

never picked it up from the lot. Instead, three months later,

DeMatteo paid the tax and registration fee on the car and took

possession of it. Thereafter, in various ways, DeMatteo ad-

vanced Bonito’s interests in either selling a housing project he

owned to the NHHA for approximately $1,000,000 (an un-

successful effort) or placing dislocated tenants in Bonito’s

housing units. The monies which would have been involved if

the sale had been accomplished were federal funds from

? See Conn. Gen. Stat. §8-40.

* The fact that the NHHA administered federal funds is immaterial and

played no part in the Government's theory of its case. DeMatteo was not

an agent of the NHHA. If he supported NHHA’s desire to buy Bonito’s

housing, he acted in favor of (rather than in conflict with) the interests of

the NHHA.

5

HUD, administered by the NHHA. No money from the City

of New Haven was implicated in these transactions, although

it was conceded at trial that New Haven received more than

$10,000 per year in federal funds.

On these facts, both Bonito and DeMatteo were convicted

of violating section 666 and of conspiring to do so. On appeal,

Bonito claimed that since the purpose of section 666 is to

protect the integrity of federally-financed projects, the or jy

bribe or gratuity criminalized by it is that intended to influ-

ence an agent of a federally-financed organization in deci-

sions relating to the financial or proprietary interests of the

organization of which the bribee is an agent. The Second Cir-

cuit, however, accepted the Government’s claim that section

666 makes it a federal crime to bribe or pay a gratuity to any

agent of any organization receiving $10,000 or more in fed-

eral funds per year, even if the bribe or gratuity had no con-

nection whatever to any financial or proprietary interest of

that organization. Thus, while it was necessary under the

statute to prove that the City of New Haven annually received

$10,000 or more in federal financing, it was not otherwise

necessary to establish that the financial interests of New Ha-

ven (and, very indirectly, of the United States) were harmed

or threatened by the bribe or gratuity.

REASONS FOR GRANTING THE PETITION

A. Section 666 Was Intended To Apply Solely

to a Bribe or Gratuity Paid to an Agent of a

Local Organization Receiving Federal

Funds When the Bribe or Gratuity Could

Affect the Finances or Proprietary Interests

of that Organization

1. Introduction

We bring to this Court yet another instance of a govern-

mental effort --- sometimes rebuffed by the courts below’ but

* See, e.g.: United States v. Wyncoop, 11 F.3d 119 (9th Cir. 1993); United

States. v. Cicco, 938 F.2d 441 (3d Cir. 1991).

6

here thus far successful --- to extend the scope of 18 U.S.C.

§666 beyond that which Congress intended it to have, thus

violating principles of both lenity and federalism.

2. Legislative History

The legislative history of section 666 shows that it was

never intended to apply to cases such as this, \#here the bribe

or gratuity never affected or threatened the finances or pro-

prietary interest of the federally-funded local organization of

which the recipient was an agent.

The purpose of this section is set forth in S. Rep. No. 225 at

269, 98th Cong. 2d Sess., reprinted in 1984 U.S. Code Cong.

& Admin. News 3182, 3510. That report, in pertinent part,

reads as follows:

1. In general

This ... [statute] is designed to create new of-

fenses to augment the ability of the United States to

vindicate significant acts of theft, fraud, and bribery

involving Federal monies that are disbursed to pri-

vate organizations or State and local governments

pursuant to a Federal program. ...

2. Present Federal law

** *

With respect to bribery, 18 U.S.C. 201 generally

punishes corrupt payments to Federal public offi-

cials, but there is some doubt as to whether or under

what circumstances persons not employed by the

Federal Government may ~ considered as a “public

official” under the definition in 18 U.S.C. 201(a) as

anyone “acting for or on behalf of the United States,

or any department, agency or branch of Government

thereof, including the District of Columbia, in any

official function.” The courts of appeals have di-

vided on the question whether a person employed

by a private organization receiving Federal monies

7

pursuant to a program is a “public official” for pur-

poses of section 201. ...

3. Provisions of the bill, as reported

.. [T]he purpose of this section [is] to protect the

integrity of the vast sums of money distributed

through Federal programs from theft, fraud, and un-

due influence by bribery.

After explaining various provisions of the new statute and

warning that it was not meant to apply to thefts or briberies

concerning every disbursement of federal funds, the Report

stated that:

It is, however, the intent to reach thefts and bribery

in situations of the types involved in the De/ Toro,

Hinton, and Mosley cases cited herein.

The cases cited were: United States v. Del Toro, 513 F.2d 656

(2d Cir.), cert. denied, 423 U.S. 826 (1975); United States v.

Hinton, 683 F.2d 195 (7th Cir. 1982), aff'd sub nom., Dixson

v. United States, 465 U.S. 482 (1984); and United States v.

Mosley, 659 F.2d 812 (7th Cir. 1981).

In each of the three cases, the defendant (who, Congress

thought should be convicted, and would be, under the new

statute) was an agent of the organization administering federal

funds and received a bribe in connection with the business of

that very same organization.

Here, in stark contrast, the bribee-agent of a local govern-

ment receiving federal funds did nothing to affect or threaten

the finances of that local government. The ambit of section

666, as construed by the Second Circuit, is thus limitless and

bears little relationship to the mischief against which it was

aimed. In the absence of the restrictions which Congress

clearly intended by stating that section 666 applied to the im-

proper influence of an agent of an organization concerning the

business and transactions “of such organization,” that section

may be improperly expanded to cover a legion of purely local

wrongdoing.

3. Lenity

The scope of section 666 has been declared “ambiguous.”

Indeed, the Second Circuit acknowledged (A-9) the “force” of

Bonito’s argument that the section was not intended by Con-

gress to cover the facts of this case. It nonetheless ignored the

ambiguity.

Ignored, as well, was the doctrine of lenity. In United

States v. Enmons, 410 U.S. 396, 411 (1971), for example, this

Court stated:

...[T]his being a criminal statute, it must be

strictly construed, and any ambiguity must be re-

solved in favor of lenity.

See also Rewis v. United States, 401 U.S. 808, 812 (1971)

(“ambiguity concerning the ambit of criminal statutes should

be resolved in favor of lenity’”’).

The Second Circuit sought to give a definite meaning to

ambiguous words. It stated (A-9) that the actual wording of

the statute “arguably allows for a more expansive reading”

than that given it by Bonito, and then proceeded to give the

statute a “more expansive” reading by defining “broadly” the

word “business.” Thus, the statute was held applicable to

Bonito’s conduct even though the bribe-receiver’s conduct

did not implicate or threaten the federal funds (granted to

New Haven) which the statute was intended to protect.

4. Federalism

Related to the issue of lenity is that of federalism. The con-

duct for which Bonito was convicted in a federal court is not

left unpunishable under state law, but is branded a felony. See

Conn. Penal Code §53a-147(a).° In United States v. Bass, 404

U.S. 336, 349 (1973), this Court stated that:

* See, e.g., United States v. Cicco, supra note 4 at 444.

* That section reads in pertinent part as follows:

(Footnote continued)

9

...{U]nless Congress conveys its purpose clearly,

it will not be deemed to have significantly changed

the federal-state balance. Congress has traditionally

been reluctant to define as a federal crime conduct

readily denounced as criminal by the States. ... [W]e

will not be quick to assume that Congress has meant

to effect a significant change in the sensitive rela-

tion between federal and state criminal jurisdiction.

(Footnotes omitted.)

Concepts of federalism can hardly be said to have been re-

spected when an “ambiguous” statute is “broadly” interpreted

so as to “arguably” cover a defendant’s conduct. The scope of

the section may fairly be said to include only what Congress

clearly intended it to include, and no more.

“A person is guilty of bribery if he promises, offers, confers or

agrees to confer upon a public servant ... any benefit as con-

sideration for the recipient’s decision, opinion, recommenda-

tion or vote as a public servant. Section 53a-146(3) defines

“public servant” as “an officer or employee of government,

elected or appointed, and any person participating as adviser,

consulting or otherwise, paid or unpaid, in performing a gov-

ernmental function.”

DeMatteo was clearly a “public servant.”

10

CONCLUSION

In Dowling v. United States, 473 U.S. 207, 213 (1985), this

Court stated that:

[W]hen assessing the reach of a federal criminal

statute, we must pay close heed to language, legis-

lative history, and purpose in order strictly to de-

termine the scope of the conduct the enactment

forbids.

Here, section 666’s language, legislative history and purpose,

as well as long-respected principles of lenity and federalism

all point to the conclusion that Bonito’s conduct, however

wrong it may have been under Connecticut’s statutes, violated

no federal criminal law.

For the foregoing reasons, a writ of certiorari should issue

to review the judgment and opinion of the Second Circuit.

Respectfully submitte.:,

orn Waele

PATRICK M. WALL

36 West 44th Stree

New York, New York 10036

(212) 840-7188

Counsel of Record for Petitioner

Of Counsel:

STEVEN B. DUKE

127 Wall Street

New Haven, Connecticut 0651 1

(203) 432-4959

November 30, 1995

A-l

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

No. 1125 —August Term 1994

Argued: February 24, 1995 Decided: June 8, 1995

Docket No. 94-1273

UNITED STATES OF AMERICA,

Appellee,

—Vvo

BENJAMIN BONITO, JR.,

Defendant-Appellant.

Before:

NEWMAN, Chief Judge,

VAN GRAAFEILAND and COFFIN,* Circuit Judges.

Appeal from the judgment of conviction for violating

18 U.S.C. § 666 and conspiracy to violate 18 U.S.C.

§ 666 entered on December 14, 1993 after jury trial

before the Honorable Alan H. Nevas in United States

District Court for the District of Connecticut, and the

sentence imposed.

* The Honorable Frank M. Coffin of the United States Court of

Appeals for the First Circuit, sitting by designation.

A-2

Affirmed.

STEVEN DUKE, New Haven, Conn., (Robert

(Casale, Branford, Conn., Ashlie

Berenger, Shawn Chen, Allegra

Lawrence, Richard St. John and Grant

Vinik, New Haven, Conn., on brief), for

appellant Bonito.

JOSEPH C. HUTCHINSON, Asst. U.S. Arty.,

New Haven, Conn. (Christopher F.

Droney, U.S. Atty., New Haven, Conn.,

on the brief) for appellee.

COFFIN, Senior Circuit Judge.

Benjamin Bonito was convicted of violating 18 U.S.C.

§ 666,' which proscribes bribery of officials of public

and private entities receiving federal funds, and con-

| The particular provision was § 666(a)(2), which states:

(a) Whoever, if the circumstance described in subsection (b) of this sec-

tion exists—

(2) corruptly gives. offers. or agrees to give anything of value to any

person, with intent to influence or reward an agent of an organization

or of a State, local or Indian tribal government, or any agency thereof,

in connection with apy business. transaction, or series of transacdons

of such organization, government, or agency involving anything of

value of $5,000 or more; J

shall be fined under this title, imprisoned not more than 10 years. or

both.

(b) The circumstance referred to in subsection (a) of this section is thar

the organization, government, or agency receives, in any one year period,

benefits in excess of $10,000... .

18 U.S.C. § 666.

A-3

spiracy to violate § 666. He was indicted for giving an

automobile to a city of New Haven real estate official to

influence the purchase of his “Bonito Village” by the

state-created New Haven Housing Authority, and also to

steer New Haven tenants to his properties. He challenges

the jury instructions, the sufficiency of the evidence, and

his sentencing. We affirm.

I. Background

Benjamin Bonito was a landlord and real estate devel-

oper in the New Haven area. He was charged in the

indictment with giving a car bribe to his co-defendant at

trial, Joseph DeMatteo, who was the Director of Real

Estate Services for the City of New Haven and also a

member of a joint New Haven-New Haven Housing

Authority committee established to select sites for low

income housing. The New Haven Housing Authority is

an organization created by Connecticut statute, see

Conn. Gen. Stat. § 8-40, which administers projects

funded by the federal Department of Housing and Urban

Development (HUD), and operates under close HUD

_ supervision. It exists independently of the City of New

Haven, which is a municipality of the state of Con-

necticut.

Bonito purchased a 193i Mercury Tracer at a fundrais-

ing auction in October 1990 for $9,500. He paid for the

car, but never picked it up from the lot. Instead, three

months later, DeMatteo, who had originally obtained the

car from a local Budget Rent-a-Car for the auction orga-

nizing committee, paid the tax and registration fee on the

vehicle and took possession of it. Budget transferred the

title directly to DeMatteo, though no Budget employee

could remember receiving authorization from Bonito to

A-4d

do so. Bonito later told the police that he had bought the

car at DeMatteo's request.

On January 25, 1991, DeMatteo executed a decument

captioned “Promissory Note.” According to Bonito's

statement to the police, the Note guaranteed repayment

for the car. On its face, the Note described a repayment

schedule for an interest free loan from Bonito in the

amount of $8,200, with no mention of the car or descrip-

tion of the consideration given. DeMatteo was to pay

monthly installments of $300 for one year starting on

February 15, 1991, with the balance due in February

1992. Any default made the entire balance payable

immediately and triggered a 10% interest rate. DeMatteo

never made any payments on the Note. Nonetheless,

Bonito did not bring suit to collect until June 30, 1992,

when a corruption investigation was well under way.

The car allegedly was given primarily in connection

with Bonito’s attempted sale of Bonito Village to the

Housing Authority. The government introduced evidence

showing that Bonito had tried unsuccessfully to sell the

property on the open market, and had tried but failed to

sell the property to the Housing Authority in 1989. In

1990, DeMatteo was appointed to represent New Haven

on a joint New Haven-Housing Authority committee

established by the mayor to identify and approve sites

for a few hundred units of low income housing to be

purchased by the Housing Authority. The relationship

between the two entities was one of cooperation; while

final legal authority to choose sites may have remained

with the Housing Authority, the mayor had issued a

directive saying that his approval was required. During

the months following the car transfer, DeMatteo

allegedly used his position on the committee to advance

the Housing Authority’s purchase of Bonito Village in a

A-5

number of ways: he set up meetings between Bonito and

an aide to the Mayor concerning the deal; he became

involved in the negotiations over price; and he contacted

both New Haven and Housing Authority officials

involved in the decision making process to try to push

the deal through. Government evidence showed that

DeMatteo frequently met with Bonito throughout this

period of advocacy, during which DeMatteo’s install-

ment payments on the Note were falling due, and going

unpaid. On April 4, 1991, the Housing Authority sub-

mitted a proposal to HUD to purchase Bonito Village for

over $1.1 million. HUD rejected the deal, citing exces-

sive price, the presence of hazardous conditions on the

property, and problems with maintaining the property's

one accessible road.

The government’s secondary theory was that, once the

Bonito Village deal fell through, DeMatteo found an

alternate means to benefit Bonito. DeMatteo served as

the administrator of a federal program by which occu-

pants of condemned buildings were given .emporary

housing pending permanent relocation. Two months after

HUD rejected the purchase of Bonito Village. DeMatteo

directed his assistant to place two such displaced tenants

in Bonito-owned properties and authorized payment of

$12,800 to Bonito. The government argued that several

facts surrounding these placements support the inference

that they were connected to the car bribe. First, Bonito’s

buildings had never before been used. Second, the daily

rate asked by Bonito and approved by DeMatteo resulted

in a payment of $2,150 on September 21, 1991, six days

after DeMatteo had failed to pay $2,400 on the Note for

the car. Finally, New Haven had a policy of securing per-

manent replacement housing as quickly as possible, but

the two tenants remained in Bonito’s “temporary” hous-

A-6

ing for four and five months, respectively, at which time

they were converted into “permanent” residents and their

rents decreased.

ll. Discussion

Bonito challenges his conviction and sentence on sev-

eral grounds. We address them seriatim.

A. The Jury Charge

Bonito argues that the instructions were faulty in three

basic respects. We note that he failed to lodge any objec-

tion to the instructions below, so we review for plain

error only. Fed. R. Crim. P. §2(b); United States v. Auli-

cino, 44 F.3d 1102, 1109 (2d Cir. 1995). A defendant sat-

isfies this standard by showing that there was error, that

it was clear or obvious, and that it affected a substantial

right. United States v. Olano, 113 S. Ct. 1770, 1776-78

(1993); United States v. Viola, 35 F.3d 37, 41 (2d Cir.

1994). None of his assigned errors meets this stringent

test.

1. The Gratuity Claim

Bonito’s first claim is that § 666 applies only to

bribery, and not gratuities. He argues that the court’s

instructions erroneously told the jury to convict if he

corruptly gave DeMatteo a thing of value in connection

with any business “past, present or future,” and incor-

rectly defined the word “corrupt.” These errors, he main-

tains, allowed conviction without requiring the jury to

find the requisite mens rea for bribery.

In United States v. Crozier, 987 F.2d 893, 898-99 (2d

Cir. 1993), we held that the former version of § 666

A-7

applied to both illegal gratuities and bribes. Bonito

argues that the new version does not because it no longer

contains the language upon which the Crozier court

relied for its holding. Fatal to his argument, however,

is the fact that the deleted language has been replaced

with language that is to the same effect. Compare id. at

899 (under the former version of § 666, the payment

must be “for or because of” the official conduct) with

§ 666(a)(1)(B) (under the current version, the payment

must be “to influence or reward” the official conduct).

Thus, the current statute continues to cover payments

made with intent to reward past official conduct, so long

as the intent to reward is corrupt.

Bonito also argues that the term “corrupt” was inad-

equately explained to the jury. We disagree. The court

specifically instructed that the government had to prove

that Bonito acted with corrupt intent, which it defined as

acting

voluntarily and intentionally and with the purpose,

at least in part, of accomplishing either an unlawful

end result or a lawful end result by some unlawful

method or means. A person acts corruptly, for exam-

ple, when he gives or offers to give something of

value intending to influence or reward a government

agent in connection with his official duties.

Because it told the jury that the bribe had to be made

“with the purpose. . . of accomplishing. ..an...

end,” this instruction made clear that the corrupt agree-

ment. offer or payment must precede the official act to

be influenced or rewarded. It then accurately tracked the

statutory language as an example. No more was required.

Cf. United States v. Medley, 913 F.2d 1248, 1261 (7th

Cir. 1990) (failure to use the word “corrupt” not plain

A-8

error where jury was told that defendant must have

accepted or agreed to accept payment intending to be

influenced or rewarded in his official conduct).

2. The Relevant Governmental Unit

Bonito makes a two-pronged argument that his con-

viction was based on an impermissible reading of

§ 666¢a)(2). The first, initially raised as part of his Rule

29 motion for judgment of acquittal, is that any bribery

of DeMatteo for trying to advance the purchase of

Bonito Village by the Housing Authority could not have

been in connection with the “business, transaction or

series of transactions” of New Haven involving at least

$5,000, because no New Haven funds were implicated

by the Bonito Village deal. The second is that the jury

was erroneously instructed to convict if it found that

DeMatteo was influenced or rewarded in connection

with “any local government business or transaction”

(emphasis added), since this would allow the jury to

convict if it found that the bribe was given in connection

with Housing Authority business, i.e., its hoped for pur-

chase of Bonito Village. Bonito concedes that he lodged

no objection to the instructions, but urges that the fail-

ure to specify that the bribe had to be given in connec-

tion with New Haven business, as was alleged, worked a

constructive amendment of the indictment, a per se Fifth

Amendment violation.

The government, in response, argues that the Housing

Authority's potential purchase of Bonito Village was the

business of both New Haven and the Housing Authority,

so there was no error at all if the jury found that the

bribe was intended to influence DeMatteo in connection

with the Bonito Village deal, and that the instructions as

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a whole made clear that the bribe had to be in connection

with New Haven business.

In regard to his first argument, Bonito vigorously con-

tends that if the phrase, “business or transaction of the

organization involving at least $5,000,” is read so that

the organization need not have a financial interest in

the corrupted business or transaction, the statute no

longer serves its intended purpose of “ ‘protect{ing] the

integrity of the vast sums of money distributed through

federal programs.’ ” United States v. Coyne, 4 F.3d 100,

109 (2d Cir. 1993) (quoting S. Rep. No. 225, 98th Cong.,

2d Sess. 369-70 (1984), reprinted in 1984 U.S.C.C.A.N.

3182, 3510-11). In other words, he argues, the affected

organization (New Haven), although meeting the juris-

dictional requirement of having received at least $10,000

of federal monies within one year of the offense, did not

have at least $5,000 at stake in the corrupted business or

transaction. Thus, he maintains, there is no connection

between the corrupted business or transaction and the

protection of federal funds. Without such a link, § 666

would be an instrument that could reach any substantial

corruption within a state or local government whether or

not there were any “ ‘significant acts of theft, fraud, and

bribery involving Federal monies that are disbursed to

private organizations or State or local governments pur-

suant to a federal program,’ ” id., Congress’s target in

passing § 666.

We acknowledge the force of this argument. On the

other hand, there are a number of factors in favor of con-

struing § 666 to cover corruption of agents of a federally

funded organization even in those official activities that

do not implicate their organization’s own funds. First,

the actual wording of the statute arguably allows room

for a more expansive reading. “Business,” broadly

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defined, includes “work,” “professional dealings,”

“one’s proper concern,” and “serious work or endeavor

that pertains to one’s job.” American Heritage Dictio-

nary 180 (1973). Also, at least on its face, the statute

does not say that. the thing of value of $5,000 must be

that of the affected organization. It says only that the

corruption must be in connection with the organization's

business or transaction “involving” a thing of value of

$5,000 or more. In addition, we have already extended

the statute beyond corruption in a local organization's

administration of a federally funded program. United

States v. Coyne, 4 F.3d at 110. The rationale for this was

stated most succinctly by the Fifth Circuit: “It is suffi-

cient that Congress seeks to preserve the integrity of fed-

eral funds by assuring the integrity of the organization

that receives them.” United States v. Westmoreland, 841

F.2d 572, 578 (Sth Cir. 1988). Yet, if the organization

has no financial stake whatsoever in the corrupted busi-

ness, how far, if at all, should § 666 reach beyond the

organization whose integrity is sought to be protected to

Satisfy the requirement that more than $5,000 be

involved?

We shall not attempt to chart the outermost bounds of

§ 666 here. It is sufficient to say that we consider “busi-

ness” as something different from, and often broader

than, “transaction.” For present purposes, we would

define it to include the dealings of a government official

in connection with a discrete transaction. This comple-

ments the sense of “transact” and “transaction,” which

imply a concluded business agreement. American Her-

itage Dictionary 1362 (1973).

In the case at bar, the mayor of New Haven had

directed that no site be accepted by the Housing Author-

ity for the placement of low income housing without his

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prior approval. He placed DeMatteo, as his agent, on the

joint New Haven-Housing Authority committee to rep-

resent New Haven’s interests in site selection. Whether

the Housing Authority had sole legal authority for site

selection, it had decided to cooperate with the City, and,

in fact, the only site it approved and sent to HUD for its

consideration was endorsed by DeMatteo in his capacity

as the City’s representative. This enterprise—deciding

on the location of scattered site housing—was being

conducted in close cooperation between the City and the

Housing Authority. It was, at all times relevant to this

case, the business of both. Further, we cannot ignore that

this joint enterprise was one that would determine the

disposition of federal grant monies. If the corruption of

an organization’s official in the administration of non-

federal monies can trigger § 666 because of the indirect

infection of the federal monies that organization

receives, so, it seems to us, should the corruption of an

official as he plays a significant, if not dominant, role in

the improper disposition of federal monies by another

Organization. Thus, in this case, the fact that no New

Haven funds were implicated by DeMatteo’s corrupt

activities does not place Bonito’s conduct outside the

scope of § 666. This conclusion does no violence to the

actual words of the statute, and, based on the unusual

fact that federal funds were sought to be corrupted

through the Housing Authority, serves the statute's

underlying purpose. It would be quite another case if the

corrupted business affected neither the financial interests

of the protected organization nor, as in this case through

the Housing Authority, federal funds directly.

Bonito’s second argument is that the charge did not

require the jury to make a fact finding on the essential

element that the bribe was made in connection with New

Haven business. Since the jurors were told the bribe had

to be in connection the business “of any local govern-

ment,” they may have simply found a link to the busi-

ness of the Housing Authority, rather than the City of

New Haven, as was charged in the indictment. Such a

finding, Bonito concludes, would have worked a con-

structive amendment of the indictment.

It is axiomatic that specific claimed errors in a jury

charge must be scrutinized in the context of the charge

as a whole. E.g., United States v. Coyne, 4 F.3d at 113.

Our review of the whole charge leaves us skeptical, at

best, that the jury would not have understood that the

bribe had to be in connection with New Haven's busi-

ness. At three separate points, the court’s instructions

strongly implied the required connection between the

bribe and New Haven business. First, in providing an

overview of the elements, the court stated that the third

element required proof that Bonito “intended to influ-

ence or reward the local government agent in connection

with any business. . . of the local government.” Since

it was not contested that DeMatteo was an agent of New

Haven, this phrase necessarily meant that the bribe had

to be made in connection with New Haven business. The

same logic applies to the court’s instruction that the sec-

ond element of the crime would be satisfied if “DeMat-

teo was an agent of a local government and. . . Bonito

gave. . . him something of value, at least in part with

the intent of influencing or rewarding [him] in connec-

tion with his official duties.” This phrase could only

have meant that the bribe must have been in connection

with Bonito’s official duties as an agent of New Haven.

Finally, immediately after using the phrase that Bonito

assigns as error, the court continued in a fashion that

LM PREN ETL INN EE LEE TI I NH ed yt

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again reinforced that the bribe had to have been made in

connection to New Haven’s business:

The third element that the government must prove

beyond a reasonable doubt is that the defendant

Bonito intended to influence or reward Joseph

DeMatteo in connection with any local government

business or transaction involving anything of value

of $5,000 or more. If you find that the government

business or transaction in question had a value of at

least $5,000, then [this element is satisfied]. How-

ever, if you determine that the value of the govern-

ment business or transaction was less than $5,000,

you must find the defendant not guilty of the

offense.

The fourth element. . . is that the City of New

Haven received in any one year period federal ben-

efits in excess of $10,000... .

(emphasis added.) Since the same government whose

business had to involve at least $5,000 also had to

receive in excess of $10,000 in federal funds, and since

New Haven was expressly named as the government that

had to receive the requisite federal funds, this part of the

instruction also indicated that the bribe had to be in con-

nection with New Haven business.

Thus, while the instruction would have been more pre-

cise if it identified New Haven individually, the failure

to do so did not inevitably led the jury to focus exclu-

sively on the business of the Housing Authority. At trial,

had objection been lodged to the imprecision, the judge

would have been well advised to correct it. But on

appeal, and in light of the charge as a whole, we see no

error so obvious and seriously prejudicial to Bonito's

substantial rights as to constitute plain error.

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B. Sufficiency

Bonito also challenges the sufficiency of the evidence

to support his conviction. In assessing this claim, we

view the evidence and the inferences it raises in the gov-

ernment’s favor. E.g., United States v. Scarpa, 913 F.2d

993, 1003 (2d Cir. 1990). Seen in this light, there was

sufficient evidence upon which a rational jury could

have found each of the required elements of the crime to

have been proven beyond a reasonable doubt.

The government had to prove that Bonito (1) gave

DeMatteo a thing of value (2) with corrupt intent to

influence or reward an agent of a federally funded orga-

nization, in this case New Haven, (3) in connection with

New Haven business or transactions (4) involving any-

thing of value of $5,000 or more.

The first element is easily satisfied. Bonito gave

DeMatteo a new Mercury Tracer’ for which he paid

$9,500, and, even if we are to take the “Promissory

Note” at face value, he only required $8,200, to be paid

back over the course of one year, in return. The second

element, that the bribe was given with corrupt intent to

influence or reward an agent of New Haven, is also ade-

quately supported.? There was no evidence that DeMat-

teo ever made any of the required payments under the

Note, and Bonito took no action to collect until after a

corruption investigation was made public. Thus the jury

could have concluded that the Note itself was a sham

designed to insulate the car bribe from discovery. Instead

of paving back Bonito for the car, DeMatteo undertook

a range of activities that inhered to Bonito’s financial

benefit. These included steering the two temporarily dis-

2 It is not contested that New Haven received the requisite federal

funds. There is also no question that DeMatteo was a New Haven agent.

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placed tenants to Bonito-owned properties and autho-

rizing payment of $12,800 to him, and exercising his

authority as a New Haven representative on the joint

New Haven-Housing Authority committee to support the

purchase of Bonito Village. While the defendant offers

innocent explanations for these events, there was enough

evidence to allow the jury to find that the two had cor-

ruptly agreed that Bonito would give the car bribe in

exchange for these favors. On the third element, as dis-

cussed above, DeMatteo’s efforts on Bonito’s behalf

were taken in his capacity as a representative of New

Haven. Based on this conduct, it was rational for the jury

to find that the bribe was given in connection with New

Haven business. Since the Bonito Village deal was set

for over $1.1 million, the jury also reasonably concluded

that more than $5,000 was involved.

C. Sentence

Bonito’s sentencing proceedings were somewhat

unusual, and we set them out in detail.

Sentencing proceedings commenced on April 4, 1994.

It was undisputed that Bonito’s criminal history category

was I and his offense level was 14, resulting in a guide-

line range from 15 to 21 months. Based on letters from

Bonito’s physicians, however, the court determined that

he suffered serious impairments from cancer, diabetes,

hypertension, and gout, and it departed downward on

that ground:

Therefore, it is the sentence of this court—first the

court will depart downward from offense level 14 to

offense level ten based upon your serious medical

condition. . . . And it is the sentence of this court

that you be committed to the custody of the Bureau

of Prisons for a period of six months, with a rec-

A-16

ommendation that your placement be in a medical

facility. The sentence is on count one of six months.

Sentence on count three is six months to run con-

current with the sentence imposed on count one.

You are to be placed on supervised release for a

period of three years following your release from

incarceration.

Special assessment of S50 on each count for a total

of $100 is imposed... .

Immediately thereafter, the prosecutor noted that the

court had failed to impose a fine, which, based on an

offense level of 10, should have been between $2,000

and $20,000. U.S.S.G. § 5E1.2(c)(3). This was entirely

appropriate: since the fine was mandated by the Guide-

lines, the district judge was required to give an

explanation before waiving its imposition. 18 U.S.C.

§ 3553(c)(2). |

After the prosecutor objected, the court did explain

why it had not imposed a fine: Bonito had submitted a

financial statement attesting to his inability to pay. The

prosecutor immediately stated that he had not received

the financial statement for review. Upon briefly exam-

ining it, he stated that he had information indicating that

Bonito could indeed pay a fine, specifically that Bonito

had filed a complaint with a local police department

alleging that $70,000 in cash had been stolen from the

trunk of his car, and that there had been monthly trans-

fers of up to $100,000 in Bonito’s Florida bank accounts.

Thereafter the prosecutor suggested that the proceedings

be adjourned to allow a more complete investigation of

Bonito’s financial status and whether his financial state-

ment was false. The court stated that “[iJf a false state-

A-17

ment had been submitted to the court with a view toward

influencing the court's decision with respect to the sen-

tence or whether or not a fine is in order, that would be

very relevant” to sentencing. :

The court then stated its inclination to impose a fine

of $20,000, but it was clear that whether or not a fine

was to be imposed remained open:

All right, this is what the court will do. In addition

to the penalties already imposed with respect to

count one, the court will impose a fine of $20,000,

which is. . . the top of the guideline range, and if

[defense counsel] wants to present evidence...

that his client is unable to pay that fine, the court

will entertain that submission, and of course the

government wil] have an opportunity to respond.

The prosecutor suggested that, instead of proceeding in

this manner, it would be preferable not to impose any

sentence and adjourn the proceedings to allow the court

to first consider further submissions. The court agreed,

and the matter was continued until April 28, 1994.

Each party filed supplemental materials concerning

Bonito’s financial status before the next proceeding. The

government's submission showed that. between August

1993 and February 1994, over $400,000 in cash had been

transferred through Bonito’s Florida bank accounts.

These transfers had occurred at a time when the Federal

Deposit Insurance Corporation and the Branford Savings

Bank had made demands for payment of outstanding

loans of $2.5 million and $1.5 million, respectively.

Bonito, for his part. submitted numerous betting slips

showing gambling losses of $330,000 in 1993-1994.

At the second proceeding, Bonito argued that the bet-

ting slips proved the accuracy of his financial] statement

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that he could not pay a fine. The government, shifting

gears, did not press the issue of the applicability of a

fine. Instead, it argued that the betting slips showed that

Bonito was well enough to travel extensively to gamble.

in addition to managing his numerous rental properties

and other real estate activities in New Haven. The gov-

ernment concluded that the downward departure for ill-

health, which the court had found appropriate at the first

proceeding, should not be granted.

The court ultimately agreed with the government. It

imposed no fine, but neither did it depart based on

Bonito’s medical condition. On counts one and three it

imposed concurrent sentences of fifteen months’ incar-

ceration and three years’ supervised release, recom-

mending to the Bureau of Prisons that Bonito be housed

at an institution that could accommodate his medical

needs.

On appeal, Bonito claims that the district court was

without power to alter the terms of the sentence it orig-

inally had “imposed” on April 4. In relevant part, 18

U.S.C. § 3582(c) provides that: “The court may not mod-

ify a term of imprisonment once it has been imposed

except. . . [if] expressly permitted by statute or by

Rule 35 of the Federal Rules of Criminal Procedure”

(emphasis added). Rule 35 allows modification only

after remand from a court of appeals, a change in cir-

cumstances caused by defendant's substantial assistance

to the government, or if the sentence was based on arith-

metic. technical or other clear error. Fed. R. Crim. P. 35.

No other statute is relevant.

Defendant urges that his sentence was imposed the

moment the judge concluded his initial articulation of

sentence, citing United States v. Marquez, 506 F.2d 620.

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622 (2d Cir. 1974). But, as we made clear in United

States v. Carbone, 739 F.2d 45, 47 (2d Cir. 1984), Mar-

quez stands for the limited proposition that where an

“unambiguous oral sentence pronounced by the court

conflict(s] with the written judgment and commitment,

the oral pronouncement controls.” We also made the

more general observation that “[a]t sentencing pro-

ceedings[,] discussion subsequent to an initial ruling

may result in the court’s modifying its initial pro-

nouncement, al] before its ruling becomes ‘final.’ ” /d.

While a somewhat different legal question was involved

in that case, we find this reasoning animates our inter-

pretation of § 3582(c)’s use of the term “imposed.” As

indicated above, within a single, uninterrupted pro-

ceeding, at which the defendant was at all times present,

the initial sentence was articulated based on a financial

statement filed by the defendant that the prosecutor had

not received for review, the prosecutor immediately

indicated that he had contrary information, which, the

court stated, would be quite relevant to its determination

of sentence if true, and the court adjourned the sen-

tencing proceeding. We see no reason for interpreting

§ 3582(c)’s use of “imposed” with undue rigidity, so as

to lock a judge into an articulation of sentence based on

misinformation, or one sided information, under these

circumstances.

Since sentence was never imposed on April 4, neither

Rule 35 nor § 3582(c) are implicated. The sentence ulti-

mately imposed was within the applicable guideline, and

we leave it undisturbed.

The judgment of conviction and the sentence are

affirmed.