Posted by: Patricia Salkin | October 1, 2011

3rd Circuit Upholds Denial of Request for Mistrial after Deputy Mayor Convicted for Exchanging Expedited Zoning and Approvals for Campaign Contributions

NOTE: While the following is really a criminal law case, the criminal activities arose in the land use context and it is reported here for that purpose.              

The Deputy Mayor of Jersey City, New Jersey, Leona Beldini was indicted in 2009 on six counts, including conspiracy to commit extortion under color of official right in violation of the Hobbs Act, two counts of substantive Hobbs Act violations, and three counts of federal program bribery under 18 U.S.C. § 666(a)(1)(B), stemming from her involvement in soliciting political campaign contributions in exchange for expediting zoning and numerous other approvals for a proposed development.  In cooperation with the FBI, Solomon Dwek posed as a real estate developer seeking to expedite his fictitious development.  Beldini facilitated meetings between Dwek, the Mayor of Jersey City, Jerramiah Healey, and various public officials.  In return for setting up the meetings, Dwek gave thousands of dollars, in $10,000 increments, which she then further split and distributed among Healy’s campaign committees.               

Beldini was found guilty by the jury of two counts of federal program bribery under 18 U.S.C. § 666(a)(1)(B) for her acceptance of two $10,000 from Dwek.  Beldini filed a motion for a judgment of acquittal or for a new trial, arguing that the campaign contributions were not “anything of value” under § 666(a)(1)(B); that the evidence failed to prove she was an “agent” under § 666(d)(1); that the jury instructions for the two counts she was convicted on “erroneously omitted the explicit quid pro quo requirement” that was contained in the Hobbs Act violation instructions; and prosecutorial misconduct stemming from the improper use of consciousness of guilt evidence given during the rebuttal summation.  The district court denied Beldini’s motion after finding that she had forfeited her objection to the jury instructions  based on her failure to timely object and, further, that § 666 does not require the quid pro quo be charged and is not necessary for a conviction.  Additionally, the district court failed to find any prosecutorial misconduct.  

After appealing the district court’s decision, the Third Circuit Court of Appeals affirmed the district court’s final judgment.  Regarding the jury instructions, the Third Circuit found that Beldini did not put the district court on notice prior to the jury’s deliberations and therefore the review of the instruction was only subject to review for plain error.  The Supreme Court has never determined whether a requirement of a quid pro quo is necessary for § 666 violations, as it has required for Hobbs Act violations, and there is a significant split between the circuits.  Due to the lack of Supreme Court or Third Circuit precedent, the error that was unclear at trial remained unclear on appeal and did not entitle further review under a plain error review. 

Because state and local officials are considered “agents” for the purposes of § 666 and the lack of any requirement of a “nexus between conduct prohibited by § 666 and federal funds,” the court found Beldini was an agent as her capacity as deputy mayor authorized her to act on behalf of the mayor and Jersey City.  The court just as quickly dismissed Beldini’s claim that local campaign contributions were not to be considered as “anything of value” under the statute because “it is similar to political loyalty and services.”  The Third Circuit found that any rational trier of fact would have found these elements to be fulfilled beyond a reasonable doubt.  Regarding the assertion of prosecutorial misconduct, the court found it to be unlikely that the reference during rebuttal summation to violations of state election law were prejudicial to Beldini based on the jury’s acquittal on four of six counts of the indictment.  Therefore, the Third Circuit found that the district court had properly denied Beldini’s motion for a mistrial on the basis of prosecutorial misconduct.  

United States v. Beldini, 2011 WL 3890964 (3rd Cir (NJ) 9/6/2011). 

The opinion can be accessed at: http://www.ca3.uscourts.gov/opinarch/102858np.pdf


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