Botti Appeal Brief

8/4/2019 Botti Appeal Brief

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10-3891In theUnited States Court of Appealsfor the Second CircuitUnited States of America,

Appellee,

v.

James Botti,

Defendant - Appellant.

On Appeal from the United States District Court

for the District of Connecticut

BRIEF FOR APPELLANT JAMES BOTTI

Becker Gallagher Cincinnati, OH Washington, D.C. 800.890.5001

GEORGEW.GANIM,JR

THEGANIMLAWFIRMP.C.

4666MAINSTREET

BRIDGEPORT,CT06606

(203)372-7772

Counsel for the Appellant

Case: 10-3891 Document: 46 Page: 1 08/31/2011 379010 44


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TABLE OF CONTENTS

TABLE OF AUTHORITIES ................................................................................... iii

1.

STATEMENT OF JURISDICTION ...............................................................1

2. STATEMENT OF THE ISSUE ...................................................................... 13. STATEMENT OF THE CASE .......................................................................14. STATEMENT OF FACTS .............................................................................. 95. SUMMARY OF ARGUMENT ..................................................................... 156. ARGUMENT ................................................................................................. 18

I. DID THE DISTRICT COURT COMMIT REVERSIBLEERROR WHEN CHARGING THE JURY ON HONESTSERVICES MAIL FRAUD AND DENYING THE MOTIONFOR NEW TRIAL IN LIGHT OF THE UNITED STATESSUPREME COURT DECISION IN UNITED STATES V.SKILLING? .......................................................................................... 18

A.

Standard of Review ...................................................................18

B. Discussion .................................................................................19(i.) The Skilling andBlackCases ..........................................20(ii.) The Jury Instruction ........................................................ 20(iii.) Failure to Convict on the Charge of Bribery .................. 26(iv.) Evidence of Non-Bribery Actions. ................................. 29(v.) Governments Opening and Closing Arguments ........... 31(vi.) Rule 29 Motion ............................................................... 34(vii.) Motion in Limine ............................................................34



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7. CONCLUSION ..............................................................................................35CERTIFICATE OF COMPLIANCE ....................................................................... 37CERTIFICATION OF SERVICE............................................................................ 38



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TABLE OF AUTHORITIES

Cases

Clark v. Crosby,335 F.3d 1303 (11th Cir. 2003) ..................................................................... 25

Griffin v United States,502 U.S. 46, 112 S.Ct. 466 (1991) .......................................................... 23, 25

Johnson v. United States,520 U.S. 461 (1997)....................................................................................... 18

McNally v. United States,

483 U.S. 350, 107 S.Ct. 2875, 97 Ed.2d 292 (1987). .................................. 20

Neder v. United States,527 U.S. 1 (1999) ........................................................................................... 29

Ryan v. United States,759 F.Supp.2d 975, 2010 WL 5495015 (N.D. Ill. Dec. 21, 2010) ................ 28

Stromberg v. California,283 U.S. 359 (1931)....................................................................................... 25

Sullivan v. Louisiana,508 U.S. 275 (1993)....................................................................................... 28

United States v. Black,130 S.Ct 2963 (2010) ...............................................................7, 19, 20, 22, 35

United States v. Black,530 F.3d 596 (7th Cir. 2008), CERT granted, 129 S.Ct. 2379 (U.S.

May 18, 2009) .................................................................................................. 5

United States v. Boone,628 F.3d 927 (7th Cir. 2010) ......................................................................... 20

United States v. Coniglio,417 Fed.Appx. 146 (3d Cir. 2011) .......................................................... 28, 29



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United States v. Desnoyers,637 F.3d 105 (2d Cir. 2011) .......................................................................... 23

United States v. Olano,507 U.S. 732 (1993)....................................................................................... 18

United States v. Rybicki,354 F.3d 124 (2d Cir. 2003) ............................................................................ 4

United States v. Skilling,130 S.Ct. 2896 (2010) .............................................................................passim

United States v. Skilling,554 F.3d 529 (5th Cir. 2009) 130 S.Ct. 393 (U.S. Oct. 13, 2009) .................. 5

United States v. Viola,35 F.3d 37 (2d Cir. 1994) .............................................................................. 19

United States v. Weyhrauch,130 S.Ct 2971 (2010) ....................................................................................... 7

United States v. Weyhrauch,548 F.3d 1237 (9th Cir. 2008), CERT granted in part, 129 S.Ct. 2863(U.S. June 29, 2009) ........................................................................................ 5

Yates v. Evatt,500 U.S. 391 (1991)....................................................................................... 28

Yeager v. United States,129 S.Ct. 2360 (2009) .............................................................................. 27, 28

Zant v. Stephens,462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983) ................................. 26

Constitutional Provisions

U.S. Const. Amend. VI .......................................................................................... 4, 7



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Statutes

18 U.S.C. 371 ....................................................................................................... 3, 4

18 U.S.C. 666 ....................................................................................................... 3, 4

18 U.S.C. 1001 ......................................................................................................... 3

18 U.S.C. 1341 ................................................................................................. 3, 4, 7

18 U.S.C. 1346 ................................................................................................passim

18 U.S.C. 3231 ......................................................................................................... 1

28 U.S.C. 1291 ......................................................................................................... 1

31 U.S.C. 5317 ......................................................................................................... 3

31 U.S.C. 5324 ......................................................................................................... 3

Rules

Fed.R.App.P. 4(b) ...................................................................................................... 1

Fed.R.Crim.P. 29 .................................................................................................. 6, 34

Fed.R.Crim.P. 33 ........................................................................................................ 6

Fed.R.Crim.P. 52(b) ................................................................................................. 18



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1. STATEMENT OF JURISDICTION

The District Court had subject matter jurisdiction of this case pursuit to 18

U.S.C. 3231 in that the Indictment alleged offenses against the United States.

On September 17, 2010, Judge Haight imposed sentence upon the Appellant,

James Botti. Final judgment as to Appellant was filed and entered on the docket

that same day. Dtk. # 386, App. A291-A294. A timely notice of appeal was filed

on September 23, 2010 pursuant Federal Rules of Appellate Procedure 4(b).

Dkt. # 389, App. A294-A295.

Appellate jurisdiction rests within 28 U.S.C. 1291.

2. STATEMENT OF THE ISSUE

DID THE DISTRICT COURT COMMIT REVERSABLE ERROR

WHEN INSTRUCTING THE JURY ON HONEST SERVICES MAIL

FRAUD AND DENYING THE MOTION FOR NEW TRIAL AS A

RESULT OF THE SUPREME COURTS RULING IN THE CASE OF

UNITED STATES V. SKILLING.

3. STATEMENT OF THE CASE

Nature of the Case

This appeal challenges a conviction and sentence imposed after a jury trial

before Senior District Court Judge Charles S. Haight, Jr. on the charges of

conspiracy to commit mail fraud; bribery of apublic official and honest services

mail fraud. The Defendant was convicted only on Count Three, honest services



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mail fraud in violation of 18 U.S.C. 1346.1 Following the verdict in this matter,

but prior to sentencing, the United States Supreme Court issued its landmark

decision in the case of United States v. Skilling, 130 S.Ct. 2896 (2010). The

decision in that case dramatically changed the broad reaches of 18 U.S.C. 1346

with regard to honest services mail fraud.

In light of the Skilling decision, Judge Haight permitted both sides to brief

the impact of Skilling in their post trial motions.2 On September 8, 2010 Judge

Haight denied the Defendants motions by written decision entitled Ruling on

Motion for New Trial and Motion for Judgment of Acquittal. Dkt #381, App.

A272-A290.

In that ruling, Judge Haight correctly noted the issue to be whether or not

the "Skilling decision transformed a charge and verdict from proper when given at

trial into an improper instruction requiring that the jury verdict be set aside." Id.

This appeal challenges the correctness of the pre-Skilling jury charge based on

constitutional grounds as well as the court's Ruling on a Motion for New Trial as it

1 The jury was unable to reach a decision on the first count, Conspiracy toDefraud, and the second count, Bribery of Public Official, thereby resulting in thecourt entering a mistrial on those two counts.

2 The Defendant filed a Motion for Judgment of Acquittal and Motion for NewTrial. The Government filed objections to those motions.



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relates to the jury charge concerning honest services mail fraud. This case has not

previously been before this Court.

Course of Proceedings and Disposition Below

On November 6, 2008, a Grand Jury in the District of Connecticut returned

a seven-count Indictment against the Appellant, James Botti. Specifically, Botti

was charged in Count One with Conspiracy to defraud in violation of 18 U.S.C.

371; Count Two with Bribery of a Public Official in violation of 18 U.S.C. 666;

Count Three with mail fraud in violation of 18 U.S.C. 1341 & 1346; Count Four

with Conspiracy to Structure in violation of 18 U.S.C. 371; Count Five with

Structuring in violation of 31 U.S.C. 5324; and Counts Six and Seven with False

Statements to the Internal Revenue Service in violation of 18 U.S.C. 1001. The

Appellant was also charged with one count of Criminal Forfeiture in violation of

31 U.S.C. 5317.

On September 22, 2009, Judge Haight issued an order severing Counts Four,

Five, Six, and Seven from Counts One, Two and Three of the Indictment. Dkt.

#90. Counts Four, Five, Six and Seven were tried separately and are not the

subject of this appeal. Dkt. #200.3

3 In an amended Indictment James Botti was charged with 4 counts:(1) conspiracy to structure in violation of 18 U.S.C. 371; (2) structuring inviolation of 31 U.S.C. 5324, and (3) 2 counts of false statement in violation of 31U.S.C. 5317. A jury trial on these counts commenced on November 2, 2009 and



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On January 8, 2010, a redacted Indictment (herein after referred to as the

Indictment) containing only Counts One, Two and Three of the original

Indictment was docketed by the Government. Dkt #229, App. A54-A67. This

Indictment contained the following charges: Count One - Conspiracy to Defraud,

18 USC 371; Count Two - Bribery of a Public Official 18 U.S.C. 666; and

Count Three - Honest Services Mail Fraud 18 U.S.C. 1341, 1346.

On January 29, 2010, prior to trial, the Appellant filed a Motion to Dismiss

Count Three of the Indictment along with a Memorandum of Law in Support of the

Motion to Dismiss. Dkt #243 and 244, App. A68-A69, A70-A76. In his

Memorandum of Law, the Appellant claimed that 18 U.S.C. 1346 "...is

unconstitutionally vague on its face under the 6th amendment both for the lack of

notice and for encouraging arbitrary enforcement by the Government. The

Appellant noted in his motion that the Second Circuit had decided the issue in

United States v. Rybicki, 354 F.3d 124 (2d Cir. 2003). The Appellant also noted in

a footnote that a "conflict in the Circuit and the Supreme Court's granting of

continued through November 10, 2009 when the Defendant was found guilty ofconspiracy to structure (Count one) and of structuring (Count Two). The juryacquitted the Defendant of the two false statement counts (Count Three and Four).Additionally the jury returned a verdict of $120,000 on the forfeiture count. (Dkt.#200)



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certiorari on this issue, as discussed infra, requires us to preserve this claim should

an appeal be necessary. Dkt. #244, App. A70-A77.

As set forth in the Appellants Motion to Dismiss, the U.S. Supreme Court

had granted certiorari in three cases to address the constitutionality of 18 U.S.C.

1346. Those cases wereUnited States v. Black,530 F.3d 596 (7th Cir. 2008),

CERT granted, 129 S.Ct. 2379 (U.S. May 18, 2009) (No. 08-876); United States v.

Weyhrauch,548 F.3d 1237 (9th Cir. 2008), CERT granted in part, 129 S.Ct. 2863

(U.S. June 29, 2009) (No. 08-1196); and United States v. Skilling, 554 F.3d 529

(5th Cir. 2009) 130 S.Ct. 393 (U.S. Oct. 13, 2009) (No. 08-1394). Dkt. #244, App.

A70-A77.

On February 17, 2010, the District Court denied the Appellants Motion to

Dismiss Count Three of the Indictment. Dkt. #257.

On March 8, 2010, the jury trial began on Counts One, Two and Three of the

Indictment. During said trial, the Government put on various witnesses and

evidence to substantiate the allegations that the Appellant had engaged in

conspiracy (Count One), bribery (Count Two) and honest services mail fraud

(Count Three) as discussed below.

In both its opening statement at the commencement of trial and its closing

arguments at the close of trial, the Government argued to the jury that it was the

Appellants actions in having people who worked for him testify before the



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Planning and Zoning Commission in favor of his zoning application without

disclosing to the Commission that they had a relationship with him or who the

Appellant instructed to lie about that relationship. It was that evidence the

Government claimed constituted the basis for the jury to convict the Appellant of

Count Three, Honest Services Mail Fraud. Dkt. # 361, 3/11/10 Tr. pp.68-73; Dkt.

#362, 3/16/10 Tr. pp.203-206; Dkt. # 354, 3/17/11 Tr. pp.137-144, 182.

On April 1, 2010, the jury announced that it was deadlocked on Count One

of the Indictment charging the Appellant with Conspiracy to Defraud and Count

Two of the Indictment charging the Appellant with Bribery of a Public Official.

The jury, however, did convict the Appellant on Count Three of Honest Services

Mail Fraud. Dkt #315, App. A77-A79.

Following the verdict, the Appellant, on April 28, 2010, filed a Motion for

Judgment of Acquittal pursuant to Rule 29 of the Federal Rules of Criminal

Procedure along with a Memorandum of Law in support thereof. Dkt #335 & 336,

App. A80-81, A82-97. The basis of the motion was the Appellants claim that

the evidence at trial was insufficient to sustain a conviction.

On that same day, the Appellant also filed a Motion for a New Trial pursuant

to Rule 33 of the Federal Rules of Criminal Procedure along with a Memorandum

of Law in support thereof. The Appellant claimed in this motion that the

evidence presented by the Government at trial was insufficient to sustain the



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conviction of mail fraud in violation of 18 U.S.C. 1341 and 1346. Dkt. #337,

App. A98-A100; Dkt. #339. The Appellant further claimed in the motion and

accompanying Memorandum of Law that "the statute under which the Appellant

has been convicted 18 U.S.C. 1346 is unconstitutionally vague on its face

under the 6th amendment, both for its lack of fair notice and for encouraging

arbitrary enforcement by the Government.

The Government, in written response to the motions, pointed to specific

bribery, as well as non-bribery evidence that it contended supported the

conviction for honest services mail fraud. Dkt. #344 & 345, App. A101-A120,

A121-A133.

Prior to ruling on the motions, Judge Haight issued an ORDER on June

25, 2010, stating in part:

"On June 24, 2010 the United States Supreme Court issued decisionsin the Skilling, Black, and Weyhrauch cases regarding honestservices, which was the only count on which Mr. Botti was convictedin the second trial. Should the parties wish to supplement theirbriefing on the pending motion in light of the Supreme Courtsdecisions, or otherwise advise the court of their position on how saiddecisions impact this case, such supplemental briefing shall be duefrom both parties on July 30, 2010, with cross-replies due on August16, 20104 Dkt. #364.

4 The court was referring specifically to the cases ofUnited States v. Skilling, 130S.Ct. 2896 (2010); United States v. Black, 130 S.Ct 2963 (2010); and UnitedStates v.Weyhrauch,130 S.Ct 2971 (2010). Hereinafter referred to as Skilling,Blackand Weyhrauch.



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The parties filed supplemental briefs. Dkt. #374, 375, 378, 379, App. A-

199-A216, A217-A242, A243-A262, A263-A271. On September 8, 2010, the

Court issued its ruling. Dkt. #337, App. A98-A100. In this ruling, the District

Court denied the Defendant's Motion for New Trial,5 Dkt. #335, App. A80-A81,

and denied the Defendant's Motion for Judgment of Acquittal. Dkt. #381, App.

A272-A290.6

On September 17, 2010, Judge Haight sentenced Mr. Botti to 72 months of

incarceration on Count 3 (Honest Services Mail Fraud); 60 months on Count 4 and

60 months on Count 5, all to run concurrently.7 Upon release, Mr. Botti is to be

placed on Supervised Release for 30 months on Count 3, 36 months on Count 4

and 36 months on Count 5. The Appellant was also ordered to pay a fine in the

amount of $25,000. Dkt. #386, App. A291-A293. On September 23, 2010, the

Appellant filed a timely Notice of Appeal to this Court. Dkt. #389, App. A294-

A295.

5 The courts ruling denying the Appellant's motion for a new trial is alsoincorporated into this appeal only as it relates to the charge to the jury on honest

services mail fraud and Skilling. Dkt #337, App. A98-A100.6 In that ruling, the Court also denied the Defendant's oral Motion for Judgment ofAcquittal.Dkt. #294.

7 Counts 4 and 5 convictions stem from an earlier trial on the severed countscontained in the original indictment.



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4. STATEMENT OF FACTS

As to Count One (Bribery of a Public Official), the Government claimed the

Appellant conspired with Shelton Mayor, Mark Lauretti (previously referred to as

"Public Official #1 in the indictment) to defraud the citizens of Shelton of the

honest services. This was with respect to the approval by the Shelton Planning and

Zoning Commission of a special exception permit for the Appellants development

project located at 828 Bridgeport Ave ("828 Project"). It was the approval of this

zoning project that was the major focus of the Government's evidence at trial and

argument to the jury. Dkt #229,pp. 1-11, App. A54-A64.

As to Count Two, (Bribery of a Public Official) the Government claimed

that the Appellant gave, offered or agreed to give things of value to Public Official

#1 with the intent to influence him in connection with the 828 Project. Dkt #229,

p.12, App. A65.

It was clear from the Indictment as well as from the Government's case at

trial that the Appellants alleged relationship with Public Official #1 was the

linchpin around which the viability of the conspiracy and bribery charges revolved.

As to count three (Honest Service Mail Fraud), the Government re-alleged

and incorporated all of the allegations contained in paragraphs 1 through 6 and 8

through 44 of the first two counts, with the exception ofthe allegations of bribery

as contained in paragraph 45 and 46 of the Indictment. The Government did



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not allege bribery in Count Three, the honest services mail fraud count. App

Dkt #229, App. A54-A67.8

The allegations set forth by the Government in Count Three were that the

Appellant intended to defraud the citizens of Shelton of the intangible right to the

honest services of Public Official #1 and other public officials concerning the 828

Project. The Government specifically alleged in the Indictment that the Appellant

caused to be delivered by the United States Postal Service a certified letter

containing the Shelton Planning and Zoning Commissions approval of the 828

Project. Dkt #229, p. 13, App. A66.

The underlying acts alleged in the indictment leading to the charge of mail

fraud committed by the Appellant, Botti consisted in part of him directing

employees and persons affiliated with his business to attend a public hearing

before the Planning and Zoning Commission and speak in favor of his application

without disclosing their affiliation with Botti. Dkt #229, p.7, App. A60. The

indictment further alleged that Botti gave gift certificates to two Planning and

Zoning Commissioners who voted in favor of the 828 Project. It alleged that he

provided Commissioner Leon Sylvester construction services without charge and

gave a gift certificate to Commissioner Sylvester after he convinced Commissioner

8 It should also be noted that the Public Official #1 was never indicted nor was heever called as a witness in this case by either side.



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Daniel Orazietti to attend a meeting and vote favorably on the 828 Project. It

further alleged that he paid Commissioner Orazietti money for an event the

Appellant, Botti held at his restaurant. Dkt #229, p. 8, App. A61.

The Indictment also alleged as part of the honest services mail fraud charge

that the Appellant, "Botti sought to conceal from the IRS and federal law

enforcement authorities the cash that he maintained in his office" and that he

"structured bank transactions to prevent financial institutions from filing required

forms with the IRS that would reveal the existence of cash". Dkt #229, p.9, App.

A62.

A jury trial commenced on March 8, 2010, and the jury heard evidence on

various days from March 8, 2010 through March 23, 2010. The Government

presented evidence that from 2002 through 2006, the Appellant, James Botti

provided benefits to Shelton public officials which included the Mayor, building

official and members of the Planning and Zoning Commission.

The benefits the Government claimed were provided to the Mayor included

home repairs (Dkt. # 362, 3/16/10 Tr. pp.189, 226227, 230, App. A170, A171-

171, A173); the hiring of the Mayor's brother to work at the Appellant's company

(Dkt. #361, 3/11/11 Tr. p.115); and paying for the mayor and his family to travel to

Florida in 2001 (Dkt. #352, 3/10/10 Tr. pp.266-267, App. A140-141; Dkt. #355,

3/19/10 Tr. p.66, App. A142).



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The benefit the Government claimed was provided to the City of Shelton's

building official concerned the sale of a truck directly to said official. It was

alleged by the Government that the truck was sold for approximately $4500 less

than the price that it had been purchased for by the Appellant. Dtk. #351, 3/8/10

Tr. p.101, App. A139.

The benefits the Government claimed that were provided to Shelton

Planning and Zoning Commissioners were gift certificates.9 Commissioner Allen

Cribbins testified that he received a fruit basket with a gift certificate in the amount

of $150 to a restaurant from the Appellant, Botti in December of 2006. He further

testified that it was not inappropriate to receive such a gift under the Shelton Ethics

Code. Dkt. #362, 3/16/10 Tr. pp.84, 88, App. A167, A169. He testified that the

receipt of those items did not affect his relationship with the Appellant, James

Botti, nor did it affect his ability to vote on any other projects thereafter. Dkt.

#362, 3/16/10 Tr. p.86, App. A168.

Richard Schultz, the Planning Administrator for the Shelton Planning and

Zoning Commission, testified that it was not atypical for gifts to be delivered to

public officials in Shelton. He testified that he himself had received gifts. Dkt.

9 The Zoning Commissioners testified that they did not consider gift certificates ina reasonable amount to be improper under the Shelton Ethics Code. Dkt. # 361,3/11/10 Tr. p.187.



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#361, 3/11/10 Tr. p.189, App. A166. He further testified that the giving of gifts to

public officials was an acceptable occurrence in Shelton and that it was not

inappropriate to present a Shelton official with a bottle of wine or reasonable gift

certificate. Dkt. #361, 3/11/10 Tr. p.189, App. A166.

The Government also presented evidence in which it claimed that

Commissioner Leon Sylvester acted improperly in discussing the upcoming zoning

meeting with Commissioner Daniel Orazietti and encouraging him to attend the

June 20, 2006 Planning and Zoning meeting and to vote in favor of the 828 Project.

Dkt. #363, 3/18/10 Tr. pp.179-184, App. A174-A179.

Additional evidence by the Government included the Appellant holding a

Christmas party at Commissioner Orazietti's restaurant around the holidays in

2006, which it claimed was a "reward" to Orazietti for his vote on the 828 Project.

Dkt. # 363, 3/18/10 Tr. p.185, App. A180.10

The Appellant contended at trial that he interacted with Shelton officials

under a good faith belief, based on the Shelton Ethics Code, that it was appropriate

to present non-substantial items to Shelton officials.

10 Mr. Orazietti testified that there was no promise by Mr. Sylvester or Mr. Bottito have a Christmas party at his restaurant or to give him a gift basket at the timehe voted in favor of the project. Dkt. #363, 3/18/10 Tr. p. 215.



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It was the Appellants further contention that none of these items were ever

given or presented to any official as a bribe or kickback with any quid pro quo.

The record does support the defense presented by the Appellant. (Dkt. #363,

3/18/10 Tr. pp.215-217; Dkt. #356, 3/22/10 Tr. pp.246, 248)

There was testimony that there is nothing wrong with accepting Christmas

gifts or fruit baskets from individuals that deal with the city. Dkt. #363, 3/22/10

Tr. pp.178-9, App. A174. There also was testimony from members of the

Planning and Zoning Commission who testified that the mayor does not dictate

how the Planning and Zoning Commission votes. Dkt. #355, 3/19/10 Tr. p.104,

App. A143; Dkt. # 356, 3/22/10 Tr. p.190, App. A154. That the chairman of the

commission does occasionally inform members of the board whether the mayor

supports or opposes a project; or that the mayor believes something may be a good

or bad project Dkt. #356, 3/22/10 Tr. p.191, App. A155. That the mayor will also

from time to time offer opinions in public and in private about a particular project.

Dkt. #356, 3/22/10 Tr. p.191, App. A155. And that the mayors position on a

project would have no effect on how they voted even if the mayor had interacted

with the commissioners concerning the vote. Dkt. #356, 3/22/10 Tr. p.201, App.

A156.

In rendering its verdict of guilty on Count Three, the jury answered Yes to

Interrogatory Question A. By checking yes to Interrogatory Question A, the jury



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indicated that they found the Appellant guilty of honest services mail fraud by

depriving the citizens of Shelton of the intangible right of honest service of their

public official or officials. Dkt #315, App. A77-A79. The jury was unable to

reach a verdict on Count One (Conspiracy) and Count Two (Bribery). A mistrial

was then ordered on those counts.

The jury was also unable to answer to Interrogatory Question B relating to

its verdict on Count Three (substantive mail fraud). 11

It is from the conviction on Count Three of the Indictment for honest

services mail fraud that the Appellant appeals.

5. SUMMARY OF ARGUMENT

The Indictment of the Appellant alleged acts or actions in the nature of both

bribery and non-bribery honest services mail fraud. The jury instruction failed to

limit the jury's consideration on Count Three of the Indictment in honest services

11 Question B asked the jury: if you find the Defendant guilty on Count Three, doyou unanimously find that:

B. James Botti engaged in a scheme or artifice to obtain money or property bymeans of a material false or fraudulent pretense, representations or promises byutilizing or causing the United States mails to be used for the purpose of executingthat scheme or artifice (check either no or yes).

____________No _______________Yes



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mail fraud to bribery and kickback schemes in accordance with the United States

Supreme Court decision in Skilling.

In charging the jury, the trial court defined a scheme to defraud as a:

"plan or course of action to obtain money or property or of the

intangible right of honest services by means of materially false or

fraudulent pretenses, representations, and promises reasonably

calculated to deceive persons of average prudence". [emphasisadded]

This language clearly failed to limit the jurys consideration to bribery or

kickbacks in order to convict the Appellant of Honest Services Mail Fraud.

The instruction further contained language that permitted the Appellant to be

convicted of Honest Services Mail Fraud if the jury found the Appellant had

engaged in a scheme to defraudof the intangible right to honest services by

"trick, deceit, deception or swindle."

Both of the above sections of the charge allowed the jury to a convict on a

much broader legal standard than is permissible under the law, as articulated in

Skilling.

The only reference to bribery in the Honest Services Mail Fraud count of the

charge was a for instance used by the court to describe one of an unspecific

number of ways in which a Public Official -- not a private person such as the

Appellant -- could commit honest services mail fraud. The charge failed to contain

any language about how someone other than a public official could commit



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honest service mail fraud through a bribery or kickback scheme. More

importantly, it failed to instruct the jury to limit its consideration to evidence of

bribery or kickbacks when deciding the Appellants guilt or innocence on the

Honest Services Mail Fraud count.

This broad language of the jury charge combined with the substantial

evidence of materially false or fraudulent representations as well as trick,

deceit, deception or swindle all support the conclusion that the jury did not find

the Appellant guilty of honest services mail fraud by way of a bribery or kickback

scheme in Count Three.

Finally, the Verdict Form used in this case provides evidence that strongly

supports the Appellants argument that although he was convicted of honest

services mail fraud in Count Three, the jury failed to conclude that there existed

proof beyond a reasonable doubt that he was guilty of bribery in Count Two. A

guilty verdict on the bribery charge would logically be an essential preliminary

finding in order for the jury to properly conclude, per Skilling, that the Appellant

was guilty of Count Three, Honest Services Mail Fraud by way of a bribery (or

kickback) scheme.

The verdict form supports the conclusion that the errors in the jury

instructions were not harmless beyond a reasonable doubt as the Appellants

conviction may have been based upon an improper theory of honest services mail



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fraud. This constitutional error affected the Appellants substantial rights, and as a

result, he is entitled to a new trial.

6. ARGUMENT

I. DID THE DISTRICT COURT COMMIT REVERSIBLEERROR WHEN CHARGING THE JURY ON HONEST

SERVICES MAIL FRAUD AND DENYING THE MOTION

FOR NEW TRIAL IN LIGHT OF THE UNITED STATES

SUPREME COURT DECISION IN UNITED STATES V.

SKILLING?

A. Standard of Review

Generally, a failure to object to jury instructions means that appellate courts

may review the instruction only for plain error that affects substantial rights.

Fed.R.Crim.P. 52(b). The plain error standard of review dictates that reversal is

warranted only where there has been (1) error; (2) that is plain; (3) that affects the

substantial rights; and (4) where the error seriously affects the fairness integrity or

public reputation of judicial proceedings. Johnson v. United States,520 U.S. 461

466-67 (1997); United States v. Olano, 507 U.S. 732 (1993). The plain error

standard of review will apply if there were no legal grounds for challenging a jury

instruction at the time it was given, but arose due to a new rule of law between the

time of conviction and the time of appeal. Johnson v. United States, 520 U.S.

461, 464-68 (1997). It should also be noted that although the defendant generally

has the burden of persuasion on the third prong, in this case where the error was

not clear at the time of the conviction, but a supervening decision renders it so by



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the time of the appeal, the burden then shifts to the Government on this issue of

affecting substantial rights. United States v. Viola, 35 F.3d 37, 42 (2d Cir. 1994)

Nevertheless, it is the Appellants contention that he had adequately

preserved this issue in numerous motions throughout the proceedings, including

post-trial filings and, therefore, the issue should be reviewed as a fully preserved

claim.

The Appellant directs this court to Judge Haights ruling on his post trial

motions for new trial and acquittal, wherein he addressed this very issue as

follows:

The Government seeks to deflect this contention by arguing, first thatBottis failure to object to the jury charge at the time waives any posttrial criticism and secondly that any defect in the charge would beharmless. Neither argument is persuasive. The charge was fashionedby counsel and the Court before the Supreme Court decided Skilling.No one knew what the court was going to hold. Defense counselcannot be faulted for failing to criticize the charge on the basis ofwhat the Court might say in Skilling. Dkt #381, p.14, App. A285.

B. Discussion

The District Courts honest services mail fraud charge to the jury was clearly

erroneous in light of the United States Supreme Courts rulings in Skilling and

Black which limited the reach of that statute [1346] to bribery and kickback

schemes. It allowed the jury to convict the Appellant under a definition of honest

services mail fraud that has been ruled to be unconstitutional. As a result, this

Court must vacate his conviction and order a new trial.



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(i.) The Skilling andBlack Cases

The United States Supreme Court addressed the scope and constitutionality

of Section 1346 in Skilling andBlack. In reaching its decision, the Supreme Court

reviewed the history of the honest services statute based upon case law predating

McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 Ed.2d 292 (1987).

The Supreme Court noted that the "`vast majority' of the honest services cases

involved offenders who are in violation of a fiduciary duty, and participated in

bribery or kickback schemes". Skillingat 2927-28. Based on this history and to

"preserve the statute without transgressing constitutional limitations," the Supreme

Court held that "1346 criminalizes only the bribe and kickback core of the pre

McNally case law." Id. See alsoUnited States v. Boone,628 F.3d 927, 929 (7th

Cir. 2010) (noting that the Supreme Court held that "in order to avoid vagueness

problems, 1346 must be read as criminalizing only bribery and kickback

schemes.").

(ii.) The Jury Instruction

The District Courts instruction to the jury on honest services mail fraud was

as follows:

In order to prove the Defendant guilty of mail fraud the Governmentmust prove each of the following elements beyond a reasonable doubt.

First, that the Defendant devised a scheme or artifice. There aretwo types of schemes charged in Count Three of the Indictment. Oneas a scheme or artifice for obtaining money or property by material



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false and fraudulent pretenses, representations, or promises, as allegedin the Indictment.

The other is a scheme or artifice to deprive the citizens ofShelton of the intangible right of the honest services of their publicofficials as alleged in the Indictment.

Second that the Defendant knowingly and willfully participatedin the scheme or artifice, with the knowledge of its fraudulent natureand with specific intent.

Third: that in execution of that scheme or artifice, theDefendant used or caused the use of the mail, as specified in theIndictment.

The first element that the Government must prove beyond areasonable doubt is that the Defendant devised a scheme or artifice.This element can be proven in two different ways in order for you to

find that the Government has satisfied the first element of mail fraud,you must be unanimous that the Government has proven at least oneof these ways. And you must all agree as to which way the elementhas been proven.

You may find that the Government has proven both of theseways, one of these ways or neither of these ways. I repeat, in order tofind that the Government has satisfied this first element beyond areasonable doubt all of you must agree unanimously that at least oneof these two ways has been proven. And all of you must agreeunanimously as to which way or ways it was proven if at all.

Thus the first element that the Government must prove beyonda reasonable doubt is that the Defendant devised either (a) a scheme orscheme or artifice for obtaining money or property by means ofmaterially false or fraudulent pretenses, representations, or promisesas alleged in the Indictment or, (b) a scheme or artifice to deprive thecitizens of Shelton of the intangible right of the honest services of theofficials as alleged in the Indictment.

The Government need not prove both of these ways, but it mustprove at least one of these ways beyond a reasonable doubt or else the

element is not satisfied and you must acquit the Defendant of thisCount.

Some definitions. A scheme or artifice is merely a plan for theaccomplishment of that objective. A scheme to defraud is any plan inplace or course of action to obtain money or property or the intangibleright of honest services by means of materially false or fraudulent



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pretenses, representations, and promises reasonably calculated todeceive persons of average prudence.

Fraud is a general term, which embraces all of the variousmeans by which human ingenuity can devise, and which are resortedto by an individual to gain an advantage over another by materiallyfalse representations, suggestions, or suppression of the truth ordeliberate disregard for the truth.

Thus, a scheme to defraud is a plan to deprive another of moneyor property or of the intangible right to honest services by trick,deceit, deception, or swindle.

***Let me explain to the jury honest services. A public official or

local Government employee owes a duty of honest, faithful, anddisinterested service to the public and to the Government that he or

she serves. The public relies on officials of the Government to act forthe public interest not for their own enrichment. A Governmentofficial who uses his or her public position for self-enrichmentbreaches the duty of honest services owed to the public and to theGovernment.

So, for instance, a public official who accepts a bribe orcorrupt payment [breaches] the duty of honest, faithful anddisinterested service, while outwardly appearing to be exercisingindependent in his or her official work, the public official instead hasbeen paid privately for his or her public conduct. Thus, the public isnot receiving the public officials honest and faithful service to whichis entitled. Dkt. #366, 3/25/10 Tr. pp.67-78, App. A181-A192.[emphasis added]

Although the jury instruction given by the trial Court may very well have

been proper prior to the Supreme Courts decisions in Skilling and Black, it was

constitutionally flawed because the Supreme Court determined in those cases that a

bribe or kickback scheme is an essential element of honest services mail fraud.

The District Courts instruction to the jury barely mentions bribery and, as

previously stated, when it does, it is only with the language for instance



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meaning that it is only one example of the ways that an individual may commit

honest services mail fraud. The District Court's instruction allowed the payment of

a bribe to be but one of many paths rather than the only path (along with

kickbacks) to a conviction. This is very different from the ruling issued in

Skilling.

In Skilling, the Supreme Court clearly held that bribes and kickback

schemes were the only types of conduct that remained as a basis for a conviction

under 1346. Following Skilling, there is little doubt that honest services mail

fraud encompasses only bribery and kickback schemes." Skilling at 2933.

[emphasis added]

The language of the charge given by the District Court provided disjunctive

theories for the jury to consider in rendering a verdict:

Jurors are not generally equipped to determine whether a particulartheory of conviction submitted to them is contrary to law.... When,therefore, jurors have been left the option of relying upon a legallyinadequate theory, there is no reason to think that their ownintelligence and expertise will save them from that error."

Griffin v United States, 502 U.S. 46, 59, 112 S.Ct. 466 (1991) as cited in: United

States v. Desnoyers, 637 F.3d 105,110 (2d Cir. 2011).

The charge, as given, left open the distinct possibility that the jury could

have convicted the Appellant of honest services mail fraud based upon some other

theory or alternate path than that permitted under Skilling.



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One theory provided by the District Court in the charge that the jury could

have relied upon was its definition of a scheme or artifice. It defined it as follows:

Some definitions. A scheme or artifice is merely a plan for theaccomplishment of that objective. A scheme to defraud is any plan inplace or course of action to obtain money or property or the intangibleright of honest services by means of materially false or fraudulentpretenses, representations, and promises reasonably calculated todeceive persons of average prudence. Dkt. #366, 3/25/10 Tr. p.73,App. A187. [emphasis added]

That definition provided the jury with an alternative path on which to convict the

Appellant that did not include a bribery or kickback scheme.

Another alternative path the District Court provided to the jury was through

its definition of scheme to defraud. It defined it as a "plan to deprive another of the

intangible right of honest services by trick, deceit, deception, or swindle." It

states:

Thus, a scheme to defraud is a plan to deprive another of money orproperty or of the intangible right to honest services by trick, deceit,deception, or swindle. Dkt. #366, 3/25/10 Tr. p.74. App. A188.[emphasis added]

It likewise does not include the requirement of a bribery or kickback scheme.

Finally, the District Court provided a third path for the jury to convict the

Appellant when it charged on self enrichment and once again failed to limit it to

a bribery or kickback scheme. That part of the charge states:

"A Government official who uses his or her public position for self-enrichment breaches the duty of honest services owed to the publicand to the Government." Dkt. #366, 3/25/10 Tr. p.77, App. A191.



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Neither materially false or fraudulent pretenses, trick, deceit, deception

or swindle or even self-enrichment equate to a bribery or kickback schemes

under the Skilling definition of honest services mail fraud. The Courts use of the

above referenced language in the charge allowed the jury to conclude that the

Appellant was guilty of honest services mail fraud -- without necessarily having to

determine that he did so by way of a bribery or kickback scheme.

Notwithstanding the special verdict form in this case, the multiple grounds

included in the jury charge is the equivalent of having a general verdict.

In a line of cases originating with Stromberg v. California, 283 U.S.359 (1931), and running through Griffin v. UnitedStates, 502 U.S. 46(1991), the Supreme Court has discussed the circumstances in which ageneral verdict must be set aside. Among other things, vacatur is"constitutionally compelled," Clark v. Crosby, 335 F.3d 1303, 1309(11th Cir. 2003), "where a provision of the Constitution forbidsconviction on a particular ground [and] the general verdict may... haverested on that ground," Griffin, 502 U.S. at 53 [emphasis added]Given the over breadth of the jury instruction and the resultinguncertainty about the basis for the verdict, the honest-services fraudconvictions of Childree and Stayton under 1346 must be set aside.Stayton v. U.S. (M.D. Ala. 2-28-2011) (Civil Action no. 1:09-CV-209-WSD, Criminal Action No. 1:06-cr-66-2-wsd.) p. 20.

These three broadly worded examples of language used by the District Court

in its charge clearly demonstrates how this jury may have convicted the Appellant

on an invalid theory of honest services mail fraud. That is one that does not

include a bribery or kickback scheme.



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A constitutional error occurs when a jury is instructed on alternativetheories of guilt and returns a general verdict that may rest on alegally invalid theory. Skilling at 2934 (citing Yates, 354 U.S. 298).[A] general verdict must be set aside if the jury was instructed that itcould rely on any of two or more independent grounds, and one ofthose grounds is [legally or constitutionally] insufficient, because theverdict may have rested exclusively on the insufficient ground. Zantv. Stephens, 462 U.S. 862, 881, 103 S.Ct. 2733, 77 L.Ed.2d 235(1983)

(iii.) Failure to Convict on the Charge of Bribery

The verdict on its face clearly indicates that it is based upon evidence and a

legal standard that is something other than bribery (or kickbacks). The three page

special verdict form sent to the jury contained interrogatories for Count One

charging Botti with conspiring to commit mail fraud and Count Three charging

Botti with honest services mail fraud. Dkt. #315, App. A77-A79.

The specific language in Count Three of the Indictment, paragraph 48,

charged the Appellant as follows:

"From in or about 2002 to in or about July 2006, in the District ofConnecticut and elsewhere, James Botti the Defendant herein,knowingly and willfully and with the intent to defraud devised andintended to devise a scheme or artifice to obtain money and propertyand to defraud the citizens of Shelton of the intangible right to honestservices of Public Official #1 and other public officials free from deceit,favoritism, bias, conflict of interest and self-enrichment by means of

material false and fraudulent pretenses, representations and promises,which scheme and artifice is in substance as set forth in paragraphs 8through 44 of Count One Indictment." Dkt #229, p.13, App. A66.

The jury in this case could not have found the Appellant guilty of honest

service mail fraud by bribery (or kickbacks) without also finding the Appellant



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guilty of bribery in Count Two. Bribery is, in all respects, an essential element that

must be proven in order to convict on honest service mail fraud. The only

alternative result would have been for the jury to also have been deadlocked on

Count Three along with Count Two if they were in fact relying on a bribery theory

to convict the Appellant of honest services mail fraud.

When the significance of the special verdict form was raised in the post

conviction Motion for New Trial, the trial court denied the motion by relying on

the holding in Yeager v. United States,129 S.Ct. 2360 (2009).

The Yeager case however is distinguishable because it is a case thatdeals

with a Defendants double jeopardy rights. Yeager dealt with the meaning of a

hung count in determining the effect of an acquitted count for double jeopardy

purposes. The Appellant, Botti's case is significantly different. It deals with

reconciling the meaning of a hung count with a guilty count for Rule 33

purposes.12

It is the Appellants contention that the split verdict coupled with the

improper charge as well as the abundance of evidence of pre-Skilling honest

services deprivation(s) makes this an entirely different situation than the matter

12 The District Court found there is to be no principled difference between thetwo." Dkt #381, p.8, App. A279. The Appellant contends that the courtsconclusion is erroneous.



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decided by the Supreme Court in Yeager. The verdict form in its entirety is hardly

an item that this Court can ignore in deciding whether or not the jury charge was

harmless beyond a reasonable doubt.

Thus, as one Court recently explained: The relevant inquiry iswhether a reasonable jury, properly instructed, must necessarily haveconvicted based on a proper theory. Ryan v. United States, ___F.Supp.2d ___, 2010 WL 5495015, at *14 (N.D. Ill. Dec. 21, 2010).In reaching this decision, the Court looks to the charges in theIndictment, the evidence and the arguments made at trial. The Courtalso looks to the jury's actual findings. SeeBlack, 625 F.3d at 393(noting jury's split verdict finding that the "only rational explanation

for the split verdict is that the jury believed that the $600,000 that theDefendants received from Forum-Paxton without covenants not tocompete, unlike the other transactions with that company, wereproceeds of a plain-vanilla pecuniary fraud - and only a pecuniaryfraud. For had the jury believed that a failure to disclose the fees forpromising not to compete with the little newspapers was honest-services fraud, it would have convicted the Defendants on all the fraudcounts, because the Defendants disclosed those fees neither to theboard nor to the shareholders; and the jury didn't do that."). See alsoSullivan v. Louisiana, 508 U.S. 275, 279 (1993) ("Harmless-errorreview looks, we have said, to the basis on which `the jury actuallyrested its verdict.'") (quoting Yates v. Evatt, 500 U.S. 391, 404(1991)) [emphasis in original] United States v. Rezko (N.D. Ill3/3/2011) No. 05 CR-691 at p.13.

The situation in this case before this Court is whether it is possible to

conclude beyond a reasonable doubt that a rational jury convicted the Appellant

based solely upon the bribery theory. Confronted with a similar situation in the

case of United States v. Coniglio, 417 Fed.Appx. 146, 149 (3d Cir. 2011), the

Third Circuit reasoned and concluded that:



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Upon careful review of the record below, it is not possible for us toconclude beyond a reasonable doubt that a rational jury would haveconvicted Coniglio based solely upon the Bribery Object. At trial, theGovernment inextricably intertwined evidence of bribery andconcealment. The District Court itself specifically charged the jurythat it might convict Coniglio on either the Bribery Object or theConcealed Conflict Object, and the District Court's evidentiary rulingsthroughout the trial may have been affected by the existence of theConcealed Conflict Object charges. Moreover, there is no escapingthe fact that, while understandably emphasizing the Bribery Object toa greater degree, the United States did argue that the ConcealedConflict Object alone was a sufficient basis for conviction. While wedo not say it is probable, we do conclude that it is indeed possible thatthe invalid Concealed Conflict Object could have contributed to the

verdict. Stated differently, on the record before us we cannotconclude beyond a reasonable doubt that a rational jury would haveconvicted Coniglio of HSMF absent the invalid Concealed Conflicttheory. Accordingly, the plain error was not harmless and we mustvacate the HSMF convictions. United States v. Coniglio, 417Fed.Appx. 146, 149 (3d Cir. 2011).

(iv.) Evidence of Non-Bribery Actions.

In Skilling,on remand, (5th Circuit April 6, 2011) No. 0620885, it was noted

that in Neder v. United States, 527 U.S. 1 (1999), the Supreme Court explained

that when an element of the offense was omitted from the jury instructions, the

reviewing Court "asks whether the record contains evidence that could rationally

lead to a contrary finding with respect to the omitted element," and if the answer is

"no," the error is harmless. Neder at 19. Here, the jury could have reasonably

concluded that the Appellant, Botti was guilty of honest services mail fraud as

described in the District Courts charge without concluding that he had committed

it by way of a bribery (or kickback) scheme.



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In fact, the indictment itself did not even contain a bribery allegation in the

Honest Services Mail Fraud Count. Such is consistent with the Governments

arguments to both the District Court in reply to various defense motions and to the

jury in both its opening statement and closing argument.

In the Governments post trial response to the Appellants motion for

acquittal as well the motion for a new trial, the Government stressed some of this

non-bribery evidence in support of the mail fraud conviction as a basis for the

jury's verdict. In its response, the Government proffered that the non-bribery acts

or actions were part of the evidence that support the honest services mail fraud

charge in Count Three. These included, ...hiding his cash from the IRS...;

...preventing banks from filing CTRs by their air structuring his bank deposits in

amounts under $10,000; ...instructing a mason in 2007 not to tell anyone about

the $10,000 and $5,000 bundles ($65,000 total) the Appellant gave him and warn

the mason in 2008 not to reveal this information to federal authorities; and Botti

sought to intimidate Mr. Czaplinski by suggesting that if Mr. Czaplinski told the

IRS about the cash Botti and his father were going to jail, Dkt #344, pp.11-14,

App. A111-A114, & Dkt. #345, App. A121-A133.13

13 The Government, on pp. 11-14 of the Governments Response to DefendantsMotion for Judgment of Acquittal, Dkt #344, App. A111-A114, listed numerousitems of evidence that are claimed to be more than sufficient evidence to find ascheme or artifice to deprive citizens of their right to honest services of its public



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This non-bribery evidence of misrepresentation, false pretenses and trick,

deceit and swindle, coupled with an overly broad jury charge has resulted in

uncertainty about the basis for the verdict, thus requiring reversal.

(v.) Governments Opening and Closing Arguments

The Governments opening and closing arguments to the jury must also be

considered when reviewing the extent of the prejudice and the likelihood that these

errors contributed to the outcome. The Government repeatedly argued to the jury

in both its opening statement and closing argument that the Appellant committed

honest services mail fraud in Count Three by misrepresentation (false pretenses,

trick, and deceit).

In its opening statement, the Government contented that the Appellant

committed honest services mail fraud by misrepresenting the truth with regards

to the hearing before the Planning and Zoning Commission. See below:

The conspiracy, (referring to the first count) ladies and gentlemen isthe secret agreement between Mark Lauretti and James Botti. Look tosee what efforts James Botti took to conceal their relationship fromthe public.

The next count of the Indictment is the June 2006 bribery count.That concerns the 828 Project. What you are looking for here ladies

and gentlemen is evidence of the bribe to Lauretti. If you recall thatJames Botti admitted to his friend that he bribed Mark Lauretti, listen

officials.) They are listed as Nos. 1 through 4, (with number 2 including exampleslisted as A through K, and number 3 including examples listed A through D).



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to the evidence. Its all about buying votes, getting the necessaryapprovals and its all being done by the backdoor. Again, ladies andgentlemen, youre going to see things that the people in Shelton neversaw. Youre going to see how the process was corrupted.

The last count of the Indictment the third count is called a mailfraud count. And what that is ladies and gentlemen as it concernswhat happen after the Planning and Zoning Commission approves aproject. Well they mail you the approval, and they mail it to you byof Unites States Postal Service, in fact, they mail it by certified mailand that occurred on June 28, 2006.

Ladies and gentlemen, this count is about manipulating the

process. Did James Botti manipulate the Planning and Zoning

Commission hearing to get approved? It is about misrepresentingthe truth. Did James Botti send people to support the project

without disclosing the fact that they worked for James Botti. And

finally look for the mailing on June 28, 2006 Dkt. #351,3/8/10 Tr.pp.47-8, App. A136-A137. [emphasis added]

In its closing argument, the Government again stressed the fact that the mail

fraud charged in Count Three of the Indictment was premised on misrepresentation

and deception.

Again, what did he do? You heard all of the evidence about howhe tried to con the Planning and Zoning Commission into voting

yes.

The Government also has to show that Botti knowingly andwillfully participated with knowledge of the fraud. Look at the phonechart. And finally, the Defendant caused or used the mail, the letterfrom the Planning and Zoning Commission. Dkt. #357, 3/24/10 Tr.

p.83, App. A158. [emphasis added]***

"And we submit to you that James Bottis ability to lie, abilityto be deceitful and ability to use false pretenses simply makes him,qualifies him to be corrupt and qualifies him to commit mail fraud. Itdoesnt mean he couldnt have done it merely because hesbombastic. Dkt. #357, 3/24/11 Tr. p.160, App. A159.



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At no time during the open statement or the close argument oreven in response to the Appellants Rule 29 motion did theGovernment ever argue that it was relying on evidence of a "bribe orkickbacks" as part of the scheme to commit honest services mailfraud.14

It is true the Government did charge Botti with bribery in Count Two and

did argue that point extensively, but only as to the bribery count. In fact, the

Government was specific in its allegation as well as the evidence as to what it was

relying upon in order to prove each of the three counts of the Indictment.

The Indictment, the evidence, the Governments opening statement and

closing argument as well as the jury charge all lead one to conclude that the

Appellant was convicted of Honest Services Mail Fraud without the requirement of

bribery (or kickbacks) as an essential element.

As previously stated, the only mention of bribery at all in this section of the

jury charge is as a for instance of the way in which a public official can

commit honest services mail fraud. That is not sufficient to convict the Appellant,

who is not a public official, of honest services mail fraud.

14 The Government does use the term "grease the wheel" when referring to Botti

providing "gifts and benefits" to various city officials. The Government does notcall them "bribes" nor are they alleged as "bribes" in the indictment. Dkt. #357,Tr. 3/24/10 pp.46-49. The Government also uses the term "quid pro quo" withregards to the holiday party at Commissioner Daniel Orazietti's restaurant (Dkt.#357, Tr. 3/24/10 p.50), but never uses the term "bribe" as it does when referring toMayor Lauretti (referring to Count Two of the indictment) "How do we knowMark Lauretti took abribe ?" Dkt. #357, 3/24/10 Tr. p.51.



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(vi.) Rule 29 Motion

The Appellants argument is further supported by the Governments

response to the Rule 29 motion as to Count Three wherein it stated to the court:

Specifically, his actions, he sent from the get go-he sentemployees of his and told them not to tell the truth to the Planning andZoning Commission. That in itself is a scheme and artifice todefraud. Dkt. 356, 3/22/10 Tr. p.113, App. A147.

(vii.) Motion in Limine

The Appellant filed a Motion in Limine to limit or preclude certain

testimony being admitted into evidence during the trial to which the Government

argued in opposition the following:

We anticipated that Gregory Fracassini will then take thestand next week and testify about the direction he was given by

James Botti to go to the public hearing and misrepresent who he

was representing. This is in the Indictment, your Honor. Its aparagraph in furtherance of the fraud and just so the record is clear,your Honor, this is paragraph number 26, and the paragraph reads, sothe record is clear, In or about may 2006, Botti directed employeesand persons affiliated with his business to attend a public hearingbefore P&Z and speak in favor of Bottis application, withoutdisclosing their affiliations with Botti. So one employee will takethe stand and testify that he was told to go there and misrepresent

who he worked for. And he observed the Defendant give that

direction to another person by the name of Dan Widkins.

Were also going to offer testimony from Andre Czaplinski

who will be a witness which he if that he too was directed by theDefendant to attend the public hearing and support the Project.

So, what Im saying, your Honor, is when Mr. Schultz testifiestoday, we are going to ask him if there are is there a record of whoattended the hearing. And Im just going to have him put on therecord the names of Gregory Fracassini, Andre Czaplinski, DanWidkins, and a woman by the name of Gail Coleman. And then Im



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going to ask the witness, did these four people come to the hearing;yes or no? Did these four people support the Project; yes or no? Anddid these four people indicate they had any affiliation with JamesBotti; yes or no.

And we anticipate theyll say they did come to the hearing, theydid support the Project, and they did not disclose they had anyaffiliation with James Botti.

Subsequent witnesses will say that James Botti directed

those people to attend the hearing. And this is in the Indictment.

Its part of the fraud. Its part of the conspiracy and were going tooffer that. Dkt. #361, 3/11/10 Tr. pp.15-17, App. A161-A163.[emphasis added]

Clearly, the Governments theory on the Honest Services Mail Fraud charge

was based on misrepresentations fostered by the Appellant and not bribery or

kickbacks. To argue differently now would be disingenuous.

7. CONCLUSION

Based upon the above, it is clear that regardless of whether this issue is

decided on a plain error standard or preserved error analysis, this court must

conclude that the verdict rendered may have been based on a standard of law that

does not comply with the recent Supreme Court decisions in Skilling and Black.

As a result, this Court must reverse and remand this matter for a new trial with

instructions on a proper jury charge consistent with Skilling andBlack.



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Respectfully submitted,

By /s/ George W. Ganim, Jr.George W. Ganim, Jr.The Ganim Law Firm P.C.4666 Main StreetBridgeport, CT 06606(203) 372-7772

Counsel for the Appellant



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CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because this brief contains 9,225 words, excluding the parts of the

brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this

brief has been prepared in a proportionally spaced typeface using Word in 14-point

Times New Roman.

By /s/ George W. Ganim, Jr.George W. Ganim, Jr.



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CERTIFICATION OF SERVICE

CAPTION: United States of America v. Botti

DOCKET NUMBER: 10-3891

I, George W. Ganim, Jr., hereby certify under penalty of perjury that onAugust 31, 2011, I served a copy of the Brief for Appellant James Biotti by

___ United States Mail___ Federal Express___ Overnight Mail___ FacsimileX E-mail (via ECF)

___ Hand delivery

on the following parties:

Richard Schechter, Senior Litigation CounselRahul Kale, Assistant U.S. AttorneyUnited States Attorney's Office, District of ConnecticutRoom 3091000 Lafayette BoulevardBridgeport, CT 06604(203) 696-3000

August 31, 2011 /s/ George W. Ganim, Jr.George W. Ganim, Jr.,


Documents

Botti Appeal Brief