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IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF NEW YORKUNITED STATES OF AMERICACriminal Action No. 09-CR-29v.Speedy Trial Act Exclusion Pursuantto 18 U.S.C. § 3161(h)(1)(F) & (J)JOSEPH L. BRUNO,Through 30 Days After Conclusion ofHearing on Pretrial Motions(Hon. Gary L. Sharpe)Defendant.Government’s Omnibus Memorandum of Law in Opposition toDefendant’s Three Motions to Dismiss The Indictment, TwoMotions to Strike Portions of the Indictment, and A MotionFor a Bill of Particulars.
 
Table of Contents
Introduction and Summary....................1I.Honest Services Mail and Wire Fraud Encompasses FailureTo Disclose A Material Conflict of Interest Or OtherMaterial Information....................2A.Pre-McNally Case Law Prohibited, Under The MailFraud Statute, Failure To Disclose Material Conflictsof Interest Or Other Material Information.......4B.McNally v. United States...............8C.The Enactment of 18 U.S.C. § 1346...........9D.Following McNally, Failure to Disclose aMaterial Conflict of Interest Or OtherMaterial Information Remains One of the Two“Core Categories” of Honest Services Fraud.....11II. ArgumentA.The Honest Services Statute is NotUnconstitutionally Vague as Applied to This CaseBecause Ordinary People Can Understand That Failureto Disclose Material Conflicts of Interest orRelated Material Information is Prohibited......16B.The Allegations of the Indictment are Relevantand Sufficient to Charge Defendant With HonestServices Mail and Wire Fraud.............241.Acts Which Occurred Before June 30, 2003are Relevant to the Honest Services FraudScheme and May Not Be Stricken Simply BecauseThey Are Outside the Statute of Limitations...242.Evidence Regarding Non-Compliance With StateLaw Is Relevant And Admissible To Defendant'sIntent and Motive, and To Assist the JuryIn Understanding the Actions of Participants,But Allegations of State Law in an IndictmentDo Not Transform Violation of State LawInto An “Element” of Honest Services Fraud... 323.Accepting the Allegations in the Indictment AsTrue, as Required When Assessing the Sufficiencyof an Indictment, This Indictment Charges aValid Offense..................35
 
-ii-C.The Honest Services Fraud Statute is a ClearExercise of Congress’s Power and Does NotViolate Any Federalism Principles...........40D.The Model Grand Jury Charge is NotUnconstitutional...................43E.The Forfeiture Allegation Should Not beStricken......................50F.None of the Language in the Indictment isSurplusage.....................531.Allegations Regarding SEC Rule 206-(4)-3are Relevant Evidence Regarding Defendant'sIntent and Motive and As Background......532.The Phrases “Dishonest Services” and“Sham Invoice” are Accurate Descriptionsof Relevant Evidence..............563.Defendant’s Motion To Strike SurplusageShould Be Denied For the Independent ReasonThat He Has Failed To Show That the AllegationsAre Inflammatory and Prejudicial........58G.A Bill of Particulars is Not Required Becausethe Indictment is Detailed and the DiscoveryIncludes “Documents of Particular Relevance”.....59III.Conclusion........................63
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