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10-1885_opn

10-1885_opn

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Published by Nick Reisman

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Published by: Nick Reisman on Nov 16, 2011
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07/18/2013

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*
The Honorable Edward R. Korman, of the United States District Court for the EasternDistrict of New York, sitting by designation.
10-1885United States v. Joseph L. Bruno
UNITED
 
STATES
 
COURT
 
OF
 
APPEALS
1
FOR THE
S
ECOND
C
IRCUIT
2_____________________34August Term, 201056(Argued: June 17, 2011 Decided: November 16, 2011)78Docket No. 10-1885910_____________________1112U
NITED
S
TATES OF
A
MERICA
,1314
 Appellee
,1516v.1718J
OSEPH
L.
 
B
RUNO
,1920
 Defendant-Appellant 
.2122Before: B.D.
 
P
ARKER
and C
HIN
,
Circuit Judges
, and K
ORMAN
,
 
 District Court Judge
.
*
2324___________________2526Appeal from a judgment of the United States District Court for the Northern District of 27New York (Sharpe,
 J.
) convicting Defendant-Appellant of two counts of honest services mail28fraud, in violation of 18 U.S.C. §§ 1341 and 1346.2930VACATED and REMANDED.31___________________323334A
BBE
D
AVID
L
OWELL
(Paul M. Thompson, Jeffrey W.35Mikoni,
on the brief 
), McDermott Will & Emery36LLP, Washington, D.C.,
 for Defendant-Appellant 
.3738
 
2Elizabeth C. Coombe (William C. Pericak, Brenda K.1Sannes,
on the brief 
), Assistant United States2Attorney for the Northern District of New York,
 for 
3Richard S. Hartunian, United States Attorney for4the Northern District of New York, Albany NY,
 for 
5
 Appellee
.6______________________________________________________________________________78B
ARRINGTON
D.
 
P
ARKER
,
 
Circuit Judge
:9Joseph L. Bruno, the defendant-appellant and former Majority Leader of the New York 10State Senate, appeals his conviction in the United States District Court for the Northern District11of New York (Sharpe,
 J.
) for honest services mail fraud.
See
18 U.S.C. §§ 1341, 1346. The12prosecution arose from Bruno’s failure to disclose conflicts of interest arising from his receipt of 13substantial payments from individuals seeking to do business with the State. An eight-count14Indictment alleged that Bruno devised “a scheme and artifice to defraud the State of New York 15and its citizens of the intangible right to his honest services by (a) contacting for personal16compensation and enrichment, and (b) entering and attempting to enter into direct and indirect17financial relationships with, persons or entities who were pursuing interests before the18Legislature or state agencies, and by concealing, disguising, and failing to disclose the existence19of such compensated contacts and financial relationships, and the resulting conflicts of interest.”20Bruno moved before trial to dismiss the Indictment on the ground that the honest services21statute was unconstitutionally vague as applied to cases charging only the nondisclosure of 22conflicts of interest. The district court denied the motion, and the case proceeded to trial.23Following a month-long trial and seven days of deliberations, the jury convicted Bruno of two24counts of honest services fraud (Counts Four and Eight), acquitted him of five counts (Counts25One, Two, Five, Six, and Seven), and could not reach a verdict on one count (Count Three) as to26
 
3which the district court subsequently declared a mistrial. The district court sentenced Bruno1principally to two years imprisonment. This appeal followed.2While Bruno’s appeal was pending, the Supreme Court decided
United States v. Skilling
,3130 S. Ct. 2896 (2010), and held that 18 U.S.C. § 1346, the honest services statute, criminalizes4only fraudulent schemes effectuated through bribes or kickbacks and does not criminalize mere5failures to disclose conflicts of interest.
 Id.
at 2933.6As the government acknowledges that the convictions under Counts Four and Eight must7now be vacated, this appeal focuses on whether Bruno may be retried under the standard8announced in
Skilling
on those Counts as well as on Count Three. At oral argument, the9government conceded that at a retrial its evidence would be the same. Bruno asks that we10analyze the sufficiency of the government’s evidence in the first trial because, if the evidence11were insufficient, double jeopardy would, Bruno contends, bar retrial on the counts in question.12Although we hold that
Skilling
requires us to vacate the convictions on Counts Four and Eight,13because our review of the record convinces us that the government adduced sufficient evidence14under the
Skilling
standard, double jeopardy does not bar retrial on those two counts. We also15hold that double jeopardy does not bar retrial on Count Three because, regardless of the16sufficiency of the evidence, the Double Jeopardy Clause does not preclude a retrial on a charge17that resulted in a hung jury. Accordingly, we vacate the counts of conviction and remand for18further proceedings consistent with this opinion.19
BACKGROUND
20Viewed in a light most favorable to the government, its proof established as to Count21Four that between March 2004 and December 2004, Bruno received approximately $200,000 in22

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