Government Response To Dow

Case 3:08-cr-00230-CSH Document 375 Filed 07/30/10 Page 1 of 26
UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT
UNITED STATES OF AMERICA : CRIM NO. 3:08CR230(CSH)

:
V. :
:
:
JAMES BOTTI : July 30, 2010
Government’s Supplemental Response to Defendant’s Post Trial

Motions for Acquittal and a New Trial
On June 25, 2010, the court invited the parties to submit a
memorandum in light of three Supreme Court decisions issued on
June 24, 2010 - - Skilling v. United States, 130 S.Ct. 2896
(2010), Black et al. v. United States, 130 S.Ct. 2963 (2010) and
Weyhrauch v. United States, 130 S.Ct. 2971 (2010). This
memorandum responds to the Court’s invitation. For the reasons
set forth herein, the Court should (a) uphold the jury’s guilty
verdict of defendant James Botti on the honest services prong of
the mail fraud count; and (b) deny the outstanding motions for
judgment of acquittal and a new trial.
A. Section 1346 is Constitutional As Used in the

Prosecution of Defendant James Botti.
As the court is well aware, on April 1, 2010, defendant
James Botti (hereafter “Botti”) was convicted on the honest
services prong of count three of the Indictment - - mail fraud
in violation of Title 18, United States Code, Sections 1341 and
1346. The jury hung on the traditional mail fraud prong of count
1
three. Botti has challenged his honest services mail fraud
conviction claiming that section 1346 is unconstitutionally vague
on its face in all applications.1 See Doc. # 339 Defendant’s
Memorandum of Law in Support of Motion for New Trial at 15-17.
Botti’s hope that the Supreme Court would agree with his facial
invalidity claim was squarely rejected on June 24, 2010 when that
Court issued its opinion in Skilling v. United States (hereafter
“Skilling”).
In Skilling, the Court upheld the constitutionality of Title
18, United States Code, Section 1346 (hereafter “section 1346")
when the charge involves a fraudulent scheme to deprive another
of honest services via a bribery scheme.2 As the Court
explained, use of section 1346 in a case charging a bribery
1
This is the only claim Botti preserved prior to the return
of the guilty verdict. Having raised no objection to the district
court’s jury instructions regarding mail fraud or the definition
of the phrase “intangible right to honest services,” Botti has
waived any challenge to the court’s instructions.
2
Prior to the Supreme Court’s decision in Skilling,
appellate courts had determined that section 1346 was
constitutional in the face of a void-for-vagueness challenge when
used in public corruption cases involving bribes or kickbacks.
See, e.g., United States v. Warner, 498 F.3d 666, 697-99 (7th
Cir. 2007) (state official accepted personal financial benefits
in exchange for official acts); United States v. Hasner, 340 F.3d
1261, 1269 (11th Cir. 2003) (public official and consultant
convicted where public official recommends consultant be hired
without disclosing fact that consultant was to provide funds to
public official); United States v. Frega, 179 F.3d 793, 803 (9th
Cir. 1999) (bribes paid by attorneys to judges); United States v.
Waymer, 55 F.3d 564, 569 (11th Cir. 1995) (board of education
member receives kickbacks from company doing business with school
board).
2
scheme presents neither a fair notice nor an arbitrary
prosecution problem. The Court reached this conclusion after
reviewing the honest services doctrine, and concluding that the
doctrine had its “genesis in prosecutions involving bribery
allegations.” Skilling, 130 S.Ct. at 2931. The Court made it
clear that “[a] criminal defendant [e.g. James Botti] who
participated in a bribery or kickback scheme, in short, cannot
tenably complain about prosecution under § 1346 on vagueness
grounds.” Skilling at 2934.3 Thus, the only claim that Botti has
preserved - - that section 1346 is unconstitutionally vague or
facially invalid - - should be rejected once again by this court4
as it was rejected by the Supreme Court.
Quite simply, the holding in Skilling (as well as the
Court’s decisions in Black and Weyhrauch) do not help Botti or
3
Because the Government in the prosecution of Enron
officials did not allege that defendant Skilling was involved in
a bribery (or kickback) scheme, Skilling’s conviction was
remanded to the appellate court for the appellate court to
determine if the conviction should be overturned.
4
In a February 17, 2010 ruling, this court denied Botti’s
motion to dismiss count three of the Indictment and rejected his
claim that section 1346 was constitutionally invalid. See Doc. #
257 at 6. This decision was eminently proper as it is the
court’s province, not a jury’s role, to decide whether a statute
is void-for-vagueness or void as applied. United States v. Nadi,
996 F.2d 548, 550 (2d Cir. 1993) (when a statute is challenged as
being vague as applied, a court must first determine whether the
statute gives a defendant notice of what is prohibited and
second, whether the statute gives explicit standards to those who
apply it).
3
lend any support to his facial invalidity argument. On the
contrary, the Court’s decision in Skilling to uphold the
constitutionality of section 1346 in cases such as the
prosecution of Botti is a fatal blow to Botti’s motion to set
aside his honest services mail fraud conviction. Indeed, the
Skilling Court explained that section “1346's application to
state and local corruption . . . reaches misconduct that might
otherwise go unpunished.” Skilling at 2934, n. 46.
In sum, a mail fraud charge like the one lodged against
Botti in count three is the type of honest services fraud charge
that the Supreme Court held is constitutional. Therefore, when a
defendant (like Botti) is charged with a scheme to deprive the
public of the honest services of public officials and that scheme
includes allegations of bribery, there is no constitutional
infirmity. As the Court explained “it has always been ‘as plain
as a pikestaff that’ bribes . . . constitute honest services
fraud.” Skilling at 2933 citing Williams v. United States, 341
U.S. 97, 101 (1951).
Therefore, Botti cannot prevail on his claim that section
1346 is facially invalid. Since this is the only claim that
Botti has preserved, he is entitled to no relief on the basis of
the Supreme Court’s June 24, 2010 decisions.
B. Botti’s Indictment for Honest Services Mail Fraud was

Based on Bribery Allegations.
4
In the prosecution of defendant James Botti, there is no
doubt that he was charged with engaging in a mail fraud scheme
involving bribery allegations. Indeed, the Indictment made it
plain that Botti’s scheme to deprive the citizens of Shelton of
the honest services of their public officials was based on a
bribe scheme. Specifically, the Indictment alleged that the
goals of the scheme were: “(a) to provide Public Official # 1
with money and other benefits in an effort to induce Public
Official # 1 to use his influence to help BOTTI obtain approval
from the Shelton commissions on his land use applications; (b) to
reward Public Official # 1 for using his position to further
BOTTI’s financial interests; (c) to affirmatively conceal his
corrupt acts, and the benefits he provided to Public Official #
1; and (d) to deprive the citizens of Shelton of the honest
services of its elected and appointed officials.” See redacted
Indictment (hereafter “Indictment”) at pars. 8, 47. The
Indictment continues in numerous paragraphs to allege that Botti
provided benefits to public officials with the intent to
influence those officials to help Botti. See, e.g., Indictment
pars. 10-15, 17, 23, 30, 35, 36, 44(a)-44(d), 44(f)-44(i), 44(k),
and 44(n)-44(o); see also subheadings “BOTTI Expects the Benefits
he Provides to Public Official # 1 will Result in Favorable
Treatment for BOTTI and his Construction Projects;” “BOTTI
Provides Things of Value to Public Officials For Their
5
Assistance.” Given that the definition of the word “bribe” as
defined by the district court was “a corrupt payment that a
person provided to a public official with the intent to influence
the official in the performance of his or her duties” (see
“Charge to the Jury,” bearing the date March 24, 2010 at 34),
there is no doubt that the Botti Indictment contained the
required allegations of a bribe scheme.
Thus, unlike the prosecution of defendant Skilling (as well
as defendant Conrad Black in Black v. United States), Botti was
properly charged in the Indictment with a constitutional use of
section 1346. Therefore, Botti’s void-for-vagueness challenge to
section 1346 must fail as he had ample notice that his conduct in
providing bribe payments to public officials was within the
heartland of the honest services doctrine.
C. Botti Cannot Dispute that the Honest Services Fraud

Charge Against Him was Based on a Scheme Involving
Bribery Allegations.
Prior to trial on the corruption counts, Botti was well
aware that he was charged with engaging in a scheme to deprive
Shelton citizens of their right to receive honest services from
their public officials and that the scheme involved allegations
of bribery. Not only did the plain language of the Indictment
put Botti on notice that he was charged with participating in a
bribe scheme, the Government explained its singular theory of the
honest services fraud charge to Botti prior to the commencement
6
of trial. In January 2010, more than fourteen months after he
was indicted on both corruption and structuring charges, Botti
moved to dismiss the mail fraud count. See Doc. 244 Defendant’s
Memorandum of Law in Support of Motion to Dismiss Count Three of
the Indictment filed January 29, 2010. In a nutshell, Botti
claimed that section 1346 was void on its face and that he had no
notice that his conduct was criminal.
In response, the Government explained that “[w]hen the
allegations in his case are evaluated - defendant paid and/or
rewarded public officials for doing what he (as opposed to the
citizens of Shelton) wanted them to do -- it is obvious that the
honest services fraud statute is constitutional as applied to
defendant Botti and thus, his claim of vagueness as applied to
him must fail. United States v. Rybicki, 354 F.3d 124, 129 (2d
Cir. 2003) (en banc) (‘[O]ne whose conduct is clearly proscribed
by the statute cannot successfully challenge it for vagueness’)
(quotation marks omitted).” See Doc. 251 at 4 Government’s
Response to Defendant’s Motion to Dismiss Count Three of Redacted
Indictment filed February 8, 2010. After receiving the
Government’s response, Botti submitted no reply brief. Nor did
Botti ever contest the Government’s summary that his case
involved allegations that he “paid and/or rewarded public
officials for doing what he (as opposed to the citizens of
Shelton) wanted them to do.” In a February 17, 2010 Ruling on
7
Pre-Trial Motions, the court denied defendant’s motion to dismiss
the mail fraud count. See Doc. # 257 at 6.
Thus, unlike defendants Skilling and Black, Botti was
charged with a mail fraud scheme involving bribery allegations
and Botti was specifically informed that the scheme involved the
payment of bribes. Not surprisingly, the district court referred
to Botti’s second trial as the “corruption trial” as there was no
question that the charges against Botti in counts one to three of
the Indictment were charges involving corruption based on
allegations of bribery. In particular, count three of the
Indictment - - which charged a mail fraud scheme involving
allegations that Botti gave bribes and other items of value to
Shelton public officials - - is a valid use of section 1346. In
short, Botti was properly charged and properly convicted of
honest services mail fraud. See Doc. # 344 Government’s Response
to Defendant’s Motion for Judgment of Acquittal at 11-15
(detailing benefits Botti provided to Shelton public officials in
an effort to deprive the public of its right to honest services
from those officials); see also Doc. # 345 Government’s Response
to Defendant’s Motion for a New Trial at 4-9 (detailing how
defendant Botti deprived the public of its right to honest
services of particular Shelton public officials by providing
those officials with bribes and other benefits).
Therefore, Botti cannot dispute that the honest services
8
mail fraud charge in count three was based on a scheme involving
bribery allegations.
D. The Government Tried the Case to the Jury on the Singular

Theory that Botti Bribed Shelton Officials and Thereby
Deprived Citizens of Their Right to Honest Services of Their
Public Officials.
At trial, defendant Botti was properly convicted of
engaging in honest services mail fraud because he engaged in a
scheme to deprive the citizens of Shelton of their right to the
honest services of their public officials and the scheme involved
the use of bribes provided by Botti to public officials. Not
only did the grand jury indict Botti on that theory (see
Indictment at pars. 10-15, 17, 23, 30, 35, 36, 44(a)-44(d), 44(f)
-44(i), 44(k), 44(n)-44(o) and subheadings), the Government tried
its case to the jury on that same singular theory. In fact, in
its proposed jury instructions, the Government set forth its sole
theory of how Botti deprived citizens of their right to honest
services. See Doc. # 266 Preliminary Requests to Charge of the
United States, Request No. 42 (“The Government alleges that
defendant JAMES BOTTI engaged in a scheme to defraud the citizens
of Shelton, Connecticut of the intangible right to the honest
services of its public officials by providing benefits to such
officials with intent to influence such officials”) (emphasis
added).
In its opening statement to the jury, the Government
9
explained its singular theory to the jury by telling it that
Botti bought public officials to own them; that he bribed the
Shelton mayor and fed the mayor’s greed; that Botti provided
bribes and other benefits to public officials such as the
building inspector and P & Z commissioners; and that he paid off
the aforementioned public officials with the intent and
expectation that these officials would act in Botti’s interest
and help Botti get to where he wanted to go. See Government’s
Opening Statement, March 8, 2010.
During trial, the Government provided the jury with numerous
examples of how Botti bribed, and attempted to bribe, Shelton
public officials by providing cash, favors and benefits to
particular public officials. See Doc. # 344 Government’s
Response to Defendant’s Motion for Judgement of Acquittal at 5-14
(detailing the bribes and other benefits presented at trial that
proved defendant engaged in a bribe scheme); see also Doc. # 345
Government’s Response to Defendant’s Motion for a New Trial at 4-
10 (detailing how Botti deprived the public of its right to
receive honest services from its public officials).
Significantly, the only theory the Government presented to the
jury to demonstrate that Botti deprived the public of its right
to the honest services of its public officials was the bribe
scheme set forth in the Indictment and the aforementioned
submissions.
10
Moreover, even the defense agrees that the Government’s sole
theory of how Botti deprived the public of its right to the
honest services of its public officials was based on allegations
of bribery. In Botti’s sanitized version of the trial evidence,
he has previously suggested that the theory of the Government’s
honest services mail fraud case was limited to three acts
undertaken by Botti: (a) providing gift certificates to P & Z
commissioners who voted in favor of the 828 project; (b) giving a
gift certificate and free construction services to a recused
commissioner who requested a voting P & Z commissioner to vote in
favor of the 828 project; and (c) rewarding a P & Z commissioner
who voted in favor of the 828 project with money for an event
held at the commissioner’s restaurant, a restaurant Botti had
never previously frequented. See Doc. 339 Defendant’s Memorandum
of Law in Support of Motion for New Trial at 8-9. Each of the
aforementioned acts described by Botti were alleged by the
Government to be bribes made by Botti to public officials to
cause those officials to act in Botti’s personal interest at the
expense of the public’s right to receive honest services from its
public officials. Hence, Botti cannot credibly claim now that
the Government’s honest services mail fraud case was based on any
theory other than a bribery theory.5 Thus, Botti cannot argue
5
At trial, Botti did not dispute that he provided items of
value to public officials. Rather, he sought to explain away
these benefits as appropriate under the Shelton Code of Ethics
11
that the honest services mail fraud charge was an improper use of
section 1346 when he himself has sought to reduce the entire
honest services fraud charge to three instances of bribery.
Finally, in its closing arguments to the jury, the
Government reiterated its singular honest services fraud theory
that Botti deprived the public of its right to honest services
from its public officials via the payment of bribes to Shelton
public officials. See Government’s initial closing argument
March 24, 2010 (Government argued that Botti bribed the Shelton
mayor, the building inspector, and P & Z commissioners; that he
bribed these officials with the intent to influence those public
officials to help Botti; that he deprived the public of its right
to receive honest services from its public officials by bribing
officials; and that Botti corrupted a host of “nice” Shelton
public officials through his actions).
Thus, the Government tried its case to the jury from the
opening statement through the closing argument on the sole theory
that Botti engaged in a bribe scheme to deprive the public of its
right to receive honest services from its public officials.
Furthermore, given that the defense has previously argued that
the entire theory of the Government’s case was based on three
allegations of bribery, there is no doubt that the honest
and merely nice gestures by people who lived and worked in the
friendly city of Shelton.
12
services mail fraud charge was indeed based on a bribery theory.
Hence, the use of section 1346 was eminently proper in the Botti
prosecution. In short, there is no reason to set aside the
jury’s guilty verdict on the honest services mail fraud count now
that the Supreme Court has spoken on the constitutional limits of
section 1346.
E. The Court’s Jury Instructions were Proper in Light of

the Constitutional Parameters of the Phrase “Intangible
Right to Honest Services”.
The instructions provided by the district court to the jury
on March 25, 2010 were eminently proper. The court’s
instructions were also remarkably prescient as they complied with
the limitations of section 1346 as announced by the Supreme Court
three months later in Skilling. In its instructions, the
district court never suggested that the jury could find a
deprivation of honest services on any theory other than a bribe
theory. Cf. Black v. United States, 130 S.Ct. at 2967 (court
erred by instructing jury that a person commits honest services
fraud if he uses his position for private gain and breaches his
duty of loyalty). Moreover, defendant Botti did not preserve any
objection to the district court’s charge regarding the phrase
“intangible right to honest services.” See Rule 30(d), Fed. R.
Crim. P. (“A party who objects to any portion of the instructions
or to a failure to give a requested instruction must inform the
court of the specific objection and the grounds for the objection
13
before the jury retires to deliberate”). Given that the district
court’s instructions were proper, and that Botti has waived and
forfeited any objection to the charge,6 Botti is not entitled to
any relief by belatedly suggesting that the court’s instructions
were somehow flawed. See United States v. Weintraub, 273 F.3d
139, 145 (2d Cir. 2001) quoting Henderson v. Kibbe, 431 U.S. 145,
154 (1977) (“it is the rare case in which an improper instruction
will justify reversal of a criminal conviction when no objection
has been made in the trial court”).
Prior to trial, the Government proposed an instruction
regarding “honest services” in its preliminary requests to charge
filed February 23, 2010. See Doc. # 266 Preliminary Requests to
Charge of the United States, Request No. 42. At no time from
February 23, 2010 to the charge conference on March 23, 2010, did
Botti object to the Government’s proposed Request No. 42. Nor
6
As set forth in the text, there was no error in the jury
instructions. Assuming arguendo Botti can somehow demonstrate
that there was an instructional error, Botti is unable to satisfy
the plain error standard of review. See United States v. Olano,
507 U.S. 725, 732 (1993) (before appellate court can correct an
error not raised at trial, there must be (1) error, (2) that is
plain, and (3) that affects substantial rights); see also Fed. R.
Crim. P. 52(b). In short, any error that occurred with respect
to the jury instructions is harmless because the only theory to
support the honest services fraud charge advanced in the
Indictment, argued by the Government at trial, and explained by
the district court in the jury instructions was a bribery theory.
Hence, any instructional error would be manifestly harmless as
the jury necessarily concluded that Botti engaged in an honest
services fraud scheme involving bribery as there was no other
theory presented.
14
did Botti choose to offer his own instruction regarding the
meaning of the phrase “intangible right to honest services” in
the month he had to review the Government’s proposed charge other
than to suggest that the district court read section 1346 to the
jury.7 See Doc. # 268 Defendant James Botti’s Preliminary
Requests to Charge, Request No. 18.
The initial draft of instructions prepared by the court for
the charge conference did not contain any definition of the
phrase “intangible rights to honest services.” During the charge
conference that took place on the afternoon of March 23, 2010,
the Government requested that the court provide the jury with a
definition of “intangible right to honest services” by using the
proposed instruction offered by the Government. See March 23,
2010 Transcript (“Tr.”) at 49-54. The Government’s proposed
instruction explained its honest services fraud theory solely in
terms of bribery. The instruction proposed using a bribe example
to illustrate for the jury how the public could be deprived of
honest services from a public official who had received corrupt
bribe payments. See Government’s Proposed Request No. 42. At
the charge conference, Botti’s counsel reviewed the Government’s
7
Defendant’s proposed mail fraud instruction was incorrect
in that it suggested that the Government was required to prove a
scheme to defraud to obtain money and property and a scheme to
defraud the citizens of Shelton of the intangible right to the
honest services of its public officials. See Doc. # 268 Proposed
Request No. 19.
15
Request No. 42. Significantly, counsel noted that the charge was
“a description of theft of honest services as alleged in this
case.” See March 23, 2010 Tr. at 51. The district court agreed
that the Government’s proposed instruction would “give the jury a
useful general definition [of the phrase intangible right to
honest services] and then ties it in to some of the particular
aspects of the case, in ways, I supposed the defendant might not
welcome.” March 23, 2010 Tr. at 53. The court indicated that it
would give the jury an instruction in terms set forth in the
Government’s proposed instruction. Id.
When Botti’s counsel was offered an opportunity to suggest
an alternative instruction, counsel first suggested he would
offer something “by the end of the day or before tomorrow.” Id.
at 54. When the court explained that it was necessary to resolve
the issue to enable the parties to prepare for closing arguments,
Botti’s experienced counsel indicated that he would “defer to
Your Honor.” Id. at 54. Thus, by approving the court’s charge,
rather than objecting or taking exception to the court’s
instructions, Botti has waived his right to challenge the court’s
charge. See Rule 30(d), Fed. R. Crim. P. (“Failure to object in
accordance with this rule precludes appellate review, except as
permitted under Rule 52(b)”); United States v. Giovanelli, 464
F.3d 346, 351 (2d Cir. 20060 (defendant waives his right to
challenge jury instruction where counsel gives approval to
16
court’s charge).
On March 25, 2010, the court charged the jury as follows
regarding the concept of intangible right to honest services in
reciting the elements of honest services mail fraud:
The second is a scheme or artifice to deprive the

citizens of Shelton of the intangible right of the
honest services of their public officials. Intangible
rights are rights to which an individual or entity is
entitled based on law or custom or practice. Let me
explain to the jury honest services. A public official
or local government employee owes a duty of honest,
faithful, and disinterested service to the public and
to the government that he or she serves. The public
relies on officials of the government to act for the
public interest not for their own enrichment. A
government official who uses his or her public position
for self enrichment breaches the duty of honest
services owed to the public and to the Government.
So, for instance, a public official who accepts a bribe

or corrupt payment [breaches]8 the duty of honest,
faithful and disinterested service[.] [W]hile outwardly
appearing to be exercising independent [judgment] in
his or her official work, the public official instead
has been paid privately for his or her public conduct.
Thus, the public is not receiving the public official’s
honest and faithful service to which it is entitled.
See Court’s March 25, 2010 Charge. (Emphasis added).
Not only did defendant Botti fail to object to the charge
set forth above, the charge is eminently proper in light of the
Supreme Court’s Skilling decision. In Skilling, the Court noted
8
While the transcript uses the term “bridges,” the district
court’s written instruction uses the word “breaches” and the
Government recalls the court orally pronouncing the term
“breaches.” Furthermore, the other revisions from the transcript
set forth above in brackets have been made because the court’s
written charge contains the bracketed language.
17
that there is no dispute that there is a fiduciary relationship
between a public official and the public. Skilling at 2931, n.
42. Furthermore, the Skilling Court made it clear that section
1346 criminalized conduct involving a scheme to bribe public
officials. Indeed, the Supreme Court used as an example a city
mayor who accepted a bribe from a third party in exchange for
awarding that party a contract. The Court explained that the
harm of such bribery conduct lay in the denial of the city’s
right to receive the mayor’s honest services. Skilling at 2926
citing United States v. Dixon, 536 F.2d 1388, 1400 (2d Cir.
1976). Hence, the court’s honest services jury instructions - -
which dealt only with a scheme involving bribery to a public
official - - are consistent with the constitutional parameters of
section 1346 as explained by the Skilling decision.
Nor can Botti complain that the court’s instructions to the
jury included an example tailored to the facts of the case. It
is well settled that a district court may tailor jury
instructions to the evidence in the case. See United States v.
Lung Fong Chen, 393 F.3d 139, 147 (2d Cir. 2004) (“The district
court did not err in adapting its instructions to the particular
circumstances of this case”); United States v. Regan, 937 F.2d
823, 828 (2d Cir. 1991) (“The district court must tailor its
instructions to the facts of the case before it”). Indeed, even
Botti’s own counsel noted that the court’s instruction “was
18
skewed to the allegations here” and was in fact a “description of
theft of honest services as alleged in this case.” March 23,
2010 Tr. at 52.
In sum, given that there was no objection to the court’s
instructions, and that the instructions were legally proper and
specifically tailored to the evidence in this case, there is no
instructional error that would require disturbing the jury’s
guilty verdict on the honest services prong of the mail fraud
charge. Cf. Black et al. v. United States at 2970 (defendant
preserved his objection to the district court’s jury instructions
regarding honest services and was thus, entitled to challenge the
instructions on appeal). Moreover, because the Indictment
against Botti charged only a bribery theory underlying the honest
services fraud charge, and the Government only argued a bribery
theory to the jury to support the honest services charge, the
jury’s conviction on the mail fraud count was necessarily based
on a bribery theory.
F. The Government Proved Each of the Mail Fraud Elements

Beyond a Reasonable Doubt and was Not Required to Prove
that a Bribe was Paid.
In Skilling, the Supreme Court addressed the
constitutionality of section 1346 and the meaning of the phrase
“intangible right to honest services”. In ruling that section
1346 is limited to cases involving bribery or kickback
allegations, the Court did nothing to alter the basic elements of
19
a mail fraud charge under section 1341. Significantly, the
Supreme Court did not suggest in any manner that an “honest
services” mail fraud prosecution under 1341 (as that phrase is
defined under section 1346) requires that the jury find a new
element of the crime - - e.g., that defendant bribed anyone.
While the Supreme Court held that the scheme contemplated by the
defendant must involve allegations of bribery to pass
constitutional muster, the Court did not suggest that the jury
must find that a bribe was paid to convict a defendant of honest
services fraud. Thus, any suggestion now raised by Botti that
the court was required to instruct the jury that a necessary
element of the crime was that a bribe be paid is wrong as a
matter of law.
The case law regarding traditional mail fraud is
instructive. In traditional mail fraud cases, there is no
requirement that the Government prove that the defendant actually
realized any gain from the scheme or that the intended victim
actually suffered any loss. See United States v. Porcelli, 404
F.3d 157, 162 (2d Cir. 2005) (defendant does not need to obtain
money or property to violate the mail fraud statute); United
States v. Starr, 816 F.2d 94, 98 (2d Cir. 1987) (government not
required to show actual injury, only that defendant contemplated
some harm or injury to victims). Rather, what is required is
that a defendant used the mail with specific intent to defraud as
20
part of a scheme to defraud a victim of money or property, not
that anyone actually lost or gained any money.
Similarly, in prosecutions for honest services mail fraud,
the Government is not required to prove, and a jury need not
find, that a defendant succeeded in bribing any public official.
Rather, the crime of honest services mail fraud requires that:
(a)there was a scheme or artifice to deprive the public of its
right to the honest services of its public officials; (b)the
defendant participated in the scheme with knowledge of its
fraudulent nature and with the specific intent to deprive the
public of its right to honest services from its public officials;
and (c) in execution of the scheme, the defendant caused the use
of the United States mail. Nothing in the Supreme Court’s
decision in Skilling changes these elements. Rather, the
Skilling decision makes clear that a defendant charged with
honest services mail fraud charge has a valid constitutional
challenge to the charge on vagueness grounds if the scheme
charged does not involve a plan to deprive the public of its
intangible right to honest services via a bribe or kickback
scheme. In other words, a defendant who uses the mail in
furtherance of a scheme to deprive the public of its right to
receive honest services from public officials with the intent to
bribe public officials is guilty of honest services fraud even if
he never succeeds in paying a single bribe.
21
The following example illustrates the point. A defendant
mails a letter to a local public official requesting that the
official use his official authority to help the defendant in
exchange for a future monetary payment - - “the bribe promise.”
The local public official, who has previously refused to support
legislation that would favor businesses in the defendant’s
industry, suddenly supports legislation that favors the
defendant’s business. Thereafter, the defendant double crosses
the public official and refuses to provide any monetary payment
or bribe to the public official. In that case, while no bribe
was ever paid, the defendant did engage in a mail fraud scheme to
deprive the local citizens of their right to receive the honest
services of the local official. While outwardly appearing to be
exercising independent judgment in his official work, the public
official instead acted because he hoped to receive a bribe
payment. Thus, as a result of defendant’s conduct, the public did
not receive the public official’s honest and faithful service to
which it was entitled.
In sum, there is no requirement that a bribe be paid for a
defendant to be guilty of engaging in honest services mail fraud.
Accordingly, any belated suggestion by Botti that the jury was
required to find a bribe payment to convict him on the honest
services prong of the mail fraud charge is incorrect as a matter
of law.
22
G. The Jury’s Decision to Hang on Some Counts is

Meaningless.
Previously, Botti has suggested that the jury’s decision to
hang on count two (the 666 bribery count) somehow means that the
jury did not find that Botti engaged in any bribery. See Doc.
339 Defendant’s Memorandum of Law in Support of Motion for New
Trial at 7. This suggestion is misplaced as a hung jury has no
significance whatsoever. Indeed, it is well settled that a hung
jury means absolutely nothing. Recently, the Supreme Court in
Yeager v. United States, 129 S.Ct. 2360, 2368 (2009), explained
that:
there is no way to decipher what a hung count

represents. Even in the usual sense of
“relevance,” a hung count hardly “make(s) the
existence of any fact . . . more probable or
less probable.” Fed. Rule Evid 402. A host of
reasons – sharp disagreement, confusion about
the issues, exhaustion after a long trial, to
name but a few - could work alone or in tandem
to cause a jury to hang. To ascribe meaning to
a hung count would presume an ability to
identify which factor was at play in the jury
room. But that is not reasoned analysis; it is
guesswork. Such conjecture about possible
reasons for a jury’s failure to reach a decision
should play no part in assessing the legal
consequences of a unanimous verdict that the
jurors did return.
Emphasis added, footnotes omitted.
Thus, any further suggestion by defendant Botti that the
jury’s decision to hang on some counts has any meaning whatsoever
should be rejected. Furthermore, given that the Government was
23
not required to prove, and the jury was not required to find,
that any bribe payment was in fact made makes any argument
regarding the hung jury on count two irrelevant. Quite simply, a
defendant can use the mail to engage in a scheme to deprive
citizens of their right to receive honest services from their
public officials (count three) while not committing the crime of
bribery as proscribed in section 666 of Title 18 (count two).
In sum, the jury’s decision to hang on some counts is both
meaningless and irrelevant to the issues before this court.
24
Conclusion
For the reasons set forth herein, the Supreme Court
decisions rendered on June 24, 2010 do not effect the jury’s
guilty verdict on the honest services prong of the mail fraud
count. Thus, the Government respectfully requests that the
court: (a) uphold the jury’s guilty verdict of defendant James
Botti on the honest services prong of the mail fraud count; and
(b) deny the outstanding motions for judgment of acquittal and a
new trial.
Respectfully submitted,
NORA R. DANNEHY
ACTING UNITED STATES ATTORNEY
/S/
RICHARD J. SCHECHTER
SENIOR LITIGATION COUNSEL
United States Attorney’s Office
915 Lafayette Boulevard
Bridgeport, Connecticut 06604
(203)696-3000
Federal Bar No. CT24238
/S/
RAHUL KALE
ASSISTANT U.S. ATTORNEY
United States Attorney’s Office
915 Lafayette Boulevard
Bridgeport, Connecticut 06604
(203)696-3000
Federal Bar No. phv0256
25
CERTIFICATE OF SERVICE
I hereby certify that on July 30, 2010 a copy of the

foregoing Government’s Supplemental Response to Defendant’s Post
Trial Motions for Acquittal and a New Trial Motion was filed
electronically and served by mail on anyone unable to accept
electronic filing. Notice of this filing will be sent by email
to all parties by operation of the court’s electronic filing
system or by mail to anyone unable to accept electronic filing as
indicated on the Notice of Electronic Filing. Parties may access
this filing through the Court’s CM/ECF System.
/S/_____________________
Richard J. Schechter
26

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Case 3:08-cr-00230-CSH Document 375 Filed 07/30/10 Page 1 of 26

UNITED STATES DISTRICT COURT

UNITED STATES OF AMERICA : CRIM NO. 3:08CR230(CSH)

Government’s Supplemental Response to Defendant’s Post Trial

On June 25, 2010, the court invited the parties to submit a

memorandum in light of three Supreme Court decisions issued on

June 24, 2010 - - Skilling v. United States, 130 S.Ct. 2896

Weyhrauch v. United States, 130 S.Ct. 2971 (2010). This

memorandum responds to the Court’s invitation. For the reasons

verdict of defendant James Botti on the honest services prong of

judgment of acquittal and a new trial.

A. Section 1346 is Constitutional As Used in the

As the court is well aware, on April 1, 2010, defendant

James Botti (hereafter “Botti”) was convicted on the honest

services prong of count three of the Indictment - - mail fraud

in violation of Title 18, United States Code, Sections 1341 and

three. Botti has challenged his honest services mail fraud

conviction claiming that section 1346 is unconstitutionally vague

on its face in all applications.1 See Doc. # 339 Defendant’s

Memorandum of Law in Support of Motion for New Trial at 15-17.

Court issued its opinion in Skilling v. United States (hereafter

In Skilling, the Court upheld the constitutionality of Title

18, United States Code, Section 1346 (hereafter “section 1346")

when the charge involves a fraudulent scheme to deprive another

of honest services via a bribery scheme.2 As the Court

explained, use of section 1346 in a case charging a bribery

scheme presents neither a fair notice nor an arbitrary

prosecution problem. The Court reached this conclusion after

reviewing the honest services doctrine, and concluding that the

doctrine had its “genesis in prosecutions involving bribery

allegations.” Skilling, 130 S.Ct. at 2931. The Court made it

clear that “[a] criminal defendant [e.g. James Botti] who

participated in a bribery or kickback scheme, in short, cannot

tenably complain about prosecution under § 1346 on vagueness

preserved - - that section 1346 is unconstitutionally vague or

facially invalid - - should be rejected once again by this court4

as it was rejected by the Supreme Court.

Quite simply, the holding in Skilling (as well as the

Court’s decisions in Black and Weyhrauch) do not help Botti or

lend any support to his facial invalidity argument. On the

contrary, the Court’s decision in Skilling to uphold the

constitutionality of section 1346 in cases such as the

prosecution of Botti is a fatal blow to Botti’s motion to set

aside his honest services mail fraud conviction. Indeed, the

Skilling Court explained that section “1346's application to

state and local corruption . . . reaches misconduct that might

otherwise go unpunished.” Skilling at 2934, n. 46.

In sum, a mail fraud charge like the one lodged against

Botti in count three is the type of honest services fraud charge

that the Supreme Court held is constitutional. Therefore, when a

defendant (like Botti) is charged with a scheme to deprive the

public of the honest services of public officials and that scheme

includes allegations of bribery, there is no constitutional

as a pikestaff that’ bribes . . . constitute honest services

fraud.” Skilling at 2933 citing Williams v. United States, 341

U.S. 97, 101 (1951).

Therefore, Botti cannot prevail on his claim that section

1346 is facially invalid. Since this is the only claim that

Botti has preserved, he is entitled to no relief on the basis of

the Supreme Court’s June 24, 2010 decisions.

B. Botti’s Indictment for Honest Services Mail Fraud was

In the prosecution of defendant James Botti, there is no

doubt that he was charged with engaging in a mail fraud scheme