Thursday, November 17, 2011

The decision in United States v Skilling does not preclude retrial of individual earlier found guilty of certain charges notwithstanding the vacating of the convictions

The decision in United States v Skilling does not preclude retrial of individual earlier found guilty of certain charges notwithstanding the vacating of the convictions 
United States v Bruno, CA 2nd Circuit, Docket 10-1885

The former Majority Leader of the New York State Senate, Joseph Bruno, appealed his conviction of honest services mail fraud, [18 U.S.C. §§1341 and 1346] arising from his alleged failure to disclose conflicts of interest related to his receipt of substantial payments from individuals seeking to do business with the State. 

A the jury had convicted Bruno of two counts of honest services fraud (Counts Four and Eight), acquitted him of five counts (Counts One, Two, Five, Six, and Seven), and could not reach a verdict on one count (Count Three).

While Bruno’s appeal was pending, the Supreme Court decided United States v. Skilling, 130 S. Ct. 2896, in which it held that 18 U.S.C. 1346, the honest services statute pursuant to which Bruno had been found guilty, criminalized only fraudulent schemes effectuated through bribes or kickbacks and did not criminalize mere failures to disclose conflicts of interest.

The Circuit Court of Appeals said that although Skilling required it to vacate Bruno’s conviction with respect to Count 4 and 8, he could be retried with respect to the allegations set out in Counts 4 and 8. According to the decision, the court’s review of the record convinced it “that the government adduced sufficient evidence under the Skilling standard,” such that double jeopardy* did not bar Bruno’s being retried on those two counts.

In addition, the court said that the Double Jeopardy Clause set out in the Fifth Amendment of the Constitution did not preclude a retrial on a charge that resulted in a hung jury, Count 3.**

The Circuit Court of Appeals remanded the matter to federal district court “for further proceedings.”

* The Fifth Amendment of the Constitution of the United States, in pertinent part, bars an individual being “for the same offence to be twice put in jeopardy of life or limb.”

** Count Three concerned certain checks allegedly mailed to Bruno in 2003 and 2004 pursuant to a series of consulting agreements.

The Bruno decision is posted on the Internet at:
http://www.ca2.uscourts.gov/decisions/isysquery/18137ae1-7004-4b8c-90a9-b30f4c3579d8/1/doc/10-1885_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/18137ae1-7004-4b8c-90a9-b30f4c3579d8/1/hilite/

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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