-1- 10-3891-cr United States v. Botti UNITED STATES COURT OF APPEALS 1 2 FOR THE SECOND CIRCUIT 3 4 5 August Term,…

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10-3891-cr
United States v. Botti
UNITED STATES COURT OF APPEALS 1
2
F OR THE S ECOND C IRCUIT 3
____________________________________ 4
5
August Term, 2011 6
7
Argued: May 2, 2012 Decided: March 28, 2013 8
9
Docket No. 10-3891-cr 10
____________________________________ 11
12
U NITED S TATES OF A MERICA , 13
14
Appellee, 15
16
—v.— 17
18
J AMES B OTTI 19
20
Defendant-Appellant. 21
___________________________________ 22
23
Before: S ACK and R AGGI , Circuit Judges, and K OELTL , District 24
Judge. *
25
26
Defendant James Botti was convicted of honest services 27
mail fraud after a jury trial in the District of Connecticut 28
(Charles S. Haight, Jr., Judge). See 18 U.S.C. §§ 1341 and 29
1346. In this appeal from the judgment entered on September 30
20, 2010, Botti argues that the District Court committed 31
reversible error when it used a jury instruction on honest 32
services mail fraud that allowed the jury to find Botti guilty 33
* The Honorable John G. Koeltl, of the United States District
Court for the Southern District of New York, sitting by
designation.

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of that crime without finding a bribery or kickback scheme, in 1
contravention of the Supreme Court’s decision in Skilling v. 2
United States, 130 S. Ct. 2896 (2010). While the jury 3
instruction was error, it does not merit reversal because 4
bribery was the only theory of honest services mail fraud 5
available to the jury based on the arguments and evidence at 6
trial. Therefore, we affirm the judgment of the District 7
Court. 8
Affirmed. 9
______________ 10
GEORGE W. GANIM, JR., The Ganim Law Firm, P.C., for Defendant- 11
Appellant James Botti. 12
13
RICHARD J. SCHECHTER AND RAHUL KALE, Assistant United States 14
Attorneys, (Sandra S. Glover on the brief) for Michael J. 15
Gustafson, Acting United States Attorney for the District of 16
Connecticut, for Appellee United States of America. 17
______________ 18
John G. Koeltl, District Judge: 19
20
Defendant James Botti was convicted of honest services 21
mail fraud after a jury trial in the District of Connecticut 22
(Charles S. Haight, Jr., Judge). See 18 U.S.C. §§ 1341 and 23
1346. In this appeal from the judgment entered on September 24
20, 2010, Botti argues that the District Court committed 25
reversible error when it used a jury instruction on honest 26
services mail fraud that allowed the jury to find Botti guilty 27
of that crime without finding a bribery or kickback scheme, in 28

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contravention of the Supreme Court’s decision in Skilling v. 1
United States, 130 S. Ct. 2896 (2010). While the jury 2
instruction was error, it does not merit reversal because 3
bribery was the only theory of honest services mail fraud 4
available to the jury based on the arguments and evidence at 5
trial. 6
Therefore, we AFFIRM the judgment of the District Court. 7
BACKGROUND 8
On November 6, 2008, a grand jury in the District of 9
Connecticut returned a seven-count indictment against Botti 10
charging (i) one count of conspiracy in violation of 18 U.S.C. 11
§ 371 to commit mail fraud in violation of 18 U.S.C. §§ 1341 12
and 1346; (ii) one count of bribery of a public official in 13
violation of 18 U.S.C. § 666(a)(2); (iii) one count of 14
scheming to obtain money and property and to defraud the 15
citizens of Shelton, Connecticut of the right to honest 16
services by mail fraud in violation of 18 U.S.C. §§ 1341 and 17
1346; (iv) one count of conspiracy in violation of 18 U.S.C. 18
§ 371 to structure transactions with domestic financial 19
institutions contrary to 31 U.S.C. §§ 5324(a)(3) and 5324(d); 20
(v) one substantive count of such structuring in violation of 21
31 U.S.C. §§ 5324(a)(3) and 5324(d); and (vi) and (vii) two 22
counts of making false statements to the Internal Revenue 23
Service in violation of 18 U.S.C. § 1001(a)(2). The 24

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indictment also included a forfeiture allegation in connection 1
with the structuring counts. 2
Prior to trial, the District Court granted the 3
defendant’s motion to sever the indictment and ordered that 4
the conspiracy to commit mail fraud, bribery, and mail fraud 5
counts—Counts One, Two, and Three—be tried separately from the 6
conspiracy to structure, structuring, and false statement 7
counts—Counts Four through Seven. Separate redacted 8
indictments were prepared for each trial. 9
On November 10, 2009, a jury found Botti guilty of 10
conspiracy to structure and structuring. The jury found him 11
not guilty of the two false statement counts. 12
On April 1, 2010, a separate jury found Botti guilty of 13
honest services mail fraud, as charged in Count Three of the 14
original and redacted indictments. On the verdict sheet, the 15
jury answered “yes” to the statement: “James Botti engaged in 16
a scheme or artifice to deprive the citizens of Shelton of the 17
intangible right of honest services of their public official 18
or officials, by utilizing or causing the United States mails 19
to be used for the purpose of executing that scheme or 20
artifice.” The jury was unable to agree on whether an object 21
of the mail fraud scheme was also “to obtain money or property 22
by means of materially false or fraudulent pretenses, 23
representations or promises . . . .” The jury was also unable 24

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to reach a verdict on the conspiracy count and the bribery 1
count, and the District Court declared a mistrial on those 2
counts and on the money and property prong of the mail fraud 3
count. 4
On September 17, 2012, Botti was sentenced principally to 5
a 72-month term of imprisonment on the honest services mail 6
fraud count and to concurrent sentences of 60 months on the 7
conspiracy to structure and structuring convictions, followed 8
by concurrent three-year terms of supervised release. 9
Judgment was entered on September 20, 2010. 10
On this appeal from the judgment of conviction, Botti 11
challenges only his conviction on the honest services mail 12
fraud count and only on the basis of the District Court’s 13
allegedly erroneous jury instruction. 14
The mail fraud conspiracy, bribery, and substantive mail 15
fraud counts arose from Botti’s alleged provision of corrupt 16
payments and other benefits to public officials in Shelton, 17
Connecticut where he worked as a real estate developer. The 18
bribery count alleged that in June 2006, Botti provided over 19
$5,000 in things of value to “Public Official #1,” identified 20
at trial as the Mayor of Shelton, with the intent to influence 21
that official to use his position and authority to assist 22
Botti in obtaining approval from Shelton’s Planning and Zoning 23
Commission for a commercial development project at 828 24

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Bridgeport Avenue in Shelton (“the 828 Project”). The mail 1
fraud count alleged: (i) a scheme to obtain money and property 2
and (ii) a scheme to deprive the citizens of Shelton of the 3
intangible right of honest services of their public officials. 4
The alleged fraudulent scheme to obtain money and property 5
relied on allegations that Botti obtained approval for $6.5 6
million in financing for the 828 Project from a financial 7
institution, later shown to be NewAlliance Bank. That 8
financing depended on approval of the 828 Project by the 9
Planning and Zoning Commission, which Botti allegedly had 10
obtained fraudulently by, among other means, directing 11
employees and persons affiliated with his business to attend a 12
public hearing before the Commission to speak in favor of 13
Botti’s application without disclosing their affiliations with 14
Botti. In support of the scheme to defraud the citizens of 15
Shelton of the honest services of their public officials, the 16
indictment alleged a scheme beginning in or about 2002 in 17
which Botti provided bribes to the Mayor of Shelton and to 18
other Shelton public officials to secure approval for Botti’s 19
commercial development projects. 20
Before trial, while Skilling v. United States, 130 S. Ct. 21
2896, was pending before the Supreme Court, Botti moved to 22
dismiss the mail fraud count to the extent that it depended on 23
the deprivation of the intangible right to honest services 24

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under 18 U.S.C. § 1346. That statute provides: “For the 1
purposes of this chapter, the term ‘scheme or artifice to 2
defraud’ includes a scheme or artifice to deprive another of 3
the intangible right of honest services.” 18 U.S.C. § 1346. 4
Botti argued that the statute was unconstitutionally vague. 5
In opposition to the motion, the Government argued that Botti 6
“could quite easily understand that his conduct in bribing and 7
rewarding public officials with intent that they use their 8
office to benefit him was prohibited conduct proscribed by 9
section 1346,” and that “federal courts had uniformly 10
construed the mail fraud statute to cover the situation where 11
public officials received bribes and kickbacks thereby 12
depriving the citizenry of their ‘intangible rights’ to good 13
and honest government.” Gov’t Resp. to Def.’s Mot. to Dismiss 14
at 5. The District Court denied Botti’s motion. 15
At trial, the Government’s theory of honest services mail 16
fraud was that Botti made corrupt payments and provided other 17
corrupt benefits to Shelton public officials with the intent 18
to influence those officials and thereby secure approval for 19
his real estate development projects. In its opening 20
statement, the Government explained its theory of the case as 21
follows: “At the end of this trial, you will be asked to 22
decide if James Botti engaged in acts of corruption by bribing 23
public officials with the intent to influence them so that 24

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they would think of James Botti’s interest, rather than the 1
public interest.” 2
The Government’s honest services mail fraud theory 3
alleged a prolonged effort by Botti to corrupt Shelton public 4
officials. The Government elicited testimony at trial 5
regarding a history of payments made and benefits given by 6
Botti to Shelton’s Mayor with the intent to influence the 7
Mayor in the exercise of his official duties. This included 8
testimony that: Botti had paid for a Florida vacation for the 9
Mayor and his family; Botti had made payments to cover the 10
costs of repairs on the Mayor’s house; Botti had significantly 11
overpaid the Mayor for a Christmas party that Botti held at a 12
restaurant owned by the Mayor; and Botti had provided other 13
services to the Mayor without charge including use of Botti’s 14
backhoe, removing furniture from the Mayor’s house, storing 15
the Mayor’s car in Botti’s maintenance garage, as well as 16
hiring the Mayor’s brother as a favor to the Mayor. 17
The Government did not limit its theory of honest 18
services mail fraud to bribery of the Mayor. The Government 19
also argued that Botti provided corrupt payments and benefits 20
to Shelton Planning and Zoning Commission officials to obtain 21
approval for the 828 Project. At trial, the Government 22
presented evidence that Botti had submitted plans for the 828 23
Project to the Shelton Planning and Zoning Commission. The 24

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Government offered testimony that, after submitting his plans, 1
Botti became aware that he lacked the votes to obtain approval 2
for the 828 Project from the Planning and Zoning Commission, 3
which led him to provide Shelton’s Mayor with a $50,000 bribe 4
in exchange for which the Mayor would use his influence with 5
the Planning and Zoning Commission to secure approval for the 6
828 Project. 1 There was also evidence that, after receiving 7
$50,000 from Botti, the Mayor had urged members of the 8
Planning and Zoning Commission to approve the 828 Project. 9
The Government also offered testimony that Botti had 10
provided benefits directly to members of the Planning and 11
Zoning Commission who had voted in favor of the 828 Project. 12
Botti provided $150 gift certificates to two members of the 13
Planning and Zoning Commission who voted in favor of the 828 14
Project and to another commissioner who provided assistance in 15
obtaining approval of the 828 Project. Botti also paid about 16
$2000 for a Christmas party at a restaurant owned by one of 17
the members of the Planning and Zoning Commission who voted in 18
favor of the 828 Project. 19
During its summation, the Government argued that there 20
were two prongs of the mail fraud alleged in the indictment: 21
1 This incident also served as evidence in support of the
bribery count on which the jury ultimately could not reach a
verdict.

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“The first prong, he intended to deprive the citizens of 1
Shelton of the honest services of their public officials. He 2
also engaged in a mail fraud to deprive NewAlliance Bank of 3
millions of dollars in loan proceeds.” The Government 4
summarized for the jury the evidence of the history of bribes 5
that Botti had paid to the Mayor of Shelton and to other 6
Shelton officials in exchange for favorable treatment. Based 7
on this pattern of behavior, the Government argued, “James 8
Botti thinks this is how you do business in Shelton; you 9
grease the wheel. . . . James Botti thinks you have to pay to 10
get things done.” 11
With respect to the mail fraud scheme to obtain money and 12
property from NewAlliance Bank, the Government focused on the 13
misrepresentations that allegedly led the Planning and Zoning 14
Commission to approve the 828 Project and thereby satisfy a 15
condition for financing approval from the bank. The 16
Government argued, “Botti’s scheme to defraud was also an 17
effort to make money for himself. He wanted the millions of 18
dollars NewAlliance Bank had waiting for him, if he could just 19
get [Planning and Zoning Commission] approval.” As evidence 20
of the materially false representations connected with this 21
mail fraud allegation, the Government pointed to testimony 22
that Botti had sent Greg Fracassini and Dan Witkins to testify 23
in favor of the 828 Project before the Planning and Zoning 24

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Commission in June 2006 and instructed them “to lie about 1
their association with him.” The Government argued that this 2
testimony was highly influential in securing the Planning and 3
Zoning Commission’s approval of the 828 Project, which was a 4
condition precedent to Botti’s securing the multi-million 5
dollar financing from NewAlliance Bank. 6
The Government’s proposed instruction on the honest 7
services mail fraud count specified that its sole theory of 8
honest services fraud was bribery. The Government’s proposed 9
jury instruction provided: 10
A government official who uses his or her public 11
position for self-enrichment breaches the duty of 12
honest service owed to the public and the 13
government. So, for instance, a public official 14
who accepts a bribe or corrupt payment breaches 15
the duty of honest, faithful, and disinterested 16
service. While outwardly appearing to be 17
exercising independent judgment in his or her 18
official work, the public official instead has 19
been paid privately for his or her public 20
conduct. Thus, the public is not receiving the 21
public official’s honest and faithful service to 22
which it is entitled. 23
24
The Government alleges that defendant JAMES 25
BOTTI engaged in a scheme to defraud the citizens 26
of Shelton, Connecticut of the intangible right 27
to the honest services of its public officials by 28
providing benefits to such officials with intent 29
to influence such officials. Where there is a 30
stream of benefits arranged by the payor to favor 31
a public official, the Government need not 32
demonstrate that any specific benefit was 33
received by the public official in exchange for a 34
specific official act. In other words, when 35
payments are made by a payor to a public official 36
with the intent to retain that official’s 37

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services on an “as needed” basis so that when the 1
opportunity presents itself that public official 2
will take specific official action on the payor’s 3
behalf, that constitutes a breach of the public 4
official’s duty of honest services. Previously, 5
in Request #34, I defined for you the definition 6
of a “bribe” and you may refer to that definition 7
in considering whether defendant JAMES BOTTI 8
engaged in a scheme to defraud the public of its 9
intangible right to the honest services of its 10
public officials. 11
12
Request #34, the request relating to the § 666 bribery 13
charge, defined a bribe as “a corrupt payment that a 14
person provides to a public official with the intent to 15
influence the official in the performance of his or her 16
public duties.” 17
At the charge conference, Botti’s counsel stated that he 18
was not comfortable with the Government’s proposed instruction 19
on honest services fraud because “it seems to be so skewed to 20
the allegations here. . . . It is not, I don’t think, a 21
generic definition of theft of honest services. It is a 22
description of theft of honest service as alleged in this 23
case.” Botti’s attorney ultimately did not object to the 24
instruction, did not offer alternative wording when given the 25
opportunity, and stated that he would defer to the District 26
Court regarding the jury instruction. 27
The District Court began its charge to the jury by 28
handing out copies of the redacted indictment and reading most 29
of it to the jury. The District Court instructed the jury on 30

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the bribery charge as the Government had requested, and read 1
the relevant statute to the jury. The District Court defined 2
the elements of the offense of bribery as follows: 3
First, at the time alleged in the indictment 4
. . . Public Official 1, was an agent of the city of 5
Shelton, Connecticut; second, that the City of 6
Shelton received federal benefits in excess of 7
$10,000 in a one-year period; third, that defendant 8
gave or agreed to give or offered something of value 9
to [Public Official 1]; fourth, that the defendant 10
acted corruptly with the intent to influence or 11
reward [Public Official 1] with respect to a 12
transaction of the City of Shelton; fifth, that the 13
value of the transaction to which the payment 14
related was at least $5,000. 15
16
Turning to the honest services mail fraud count, the 17
District Court read the allegations in the indictment and the 18
relevant statutory provisions to the jury. The District Court 19
then explained the elements: 20
First, that the defendant devised a scheme or 21
artifice. There are two types of schemes charged in 22
Count Three of the indictment. One is a scheme or 23
artifice for obtaining money or property by 24
materially false and fraudulent pretenses, 25
representations or promises, as alleged in the 26
indictment. 27
28
The other is a scheme or artifice to deprive the 29
citizens of Shelton of the intangible right of the 30
honest services of their public officials as alleged 31
in the indictment. 32
33
Second element: That the defendant knowingly and 34
willfully participated in the scheme or artifice, 35
with knowledge of its fraudulent nature and with 36
specific intent. 37
38

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Third: That in execution of that scheme or artifice, 1
the Defendant used or caused the use of the mails, 2
as specified in the indictment. 3
4
The District Court provided a more truncated explanation of 5
honest services than the charge sought by the Government. The 6
District Court instructed the jury as follows: 7
A public official or local government employee 8
owes a duty of honest, faithful, and 9
disinterested service to the public and to the 10
government that he or she serves. The public 11
relies on officials of the government to act for 12
the public interest not for their own enrichment. 13
A government official who uses his or her public 14
position for self-enrichment breaches the duty of 15
honest service owed to the public and to the 16
Government. 17
18
So, for instance, a public official who accepts a 19
bribe or corrupt payment [breaches] the duty of 20
honest, faithful and disinterested service, while 21
outwardly appearing to be exercising 22
independen[ce] in his or her official work, the 23
public official instead has been paid privately 24
for his or her public conduct. Thus, the public 25
is not receiving the public official’s honest and 26
faithful service to which it is entitled. 27
28
Defense counsel did not object to the instruction. 29
The jury returned a guilty verdict on the honest services 30
mail fraud count. The jury was unable to reach a verdict on 31
the mail fraud count based on deprivation of money or 32
property. 33
After trial, Botti moved for a judgment of acquittal 34
pursuant to Federal Rule of Criminal Procedure 29 and for a 35
new trial pursuant to Federal Rule of Criminal Procedure 33, 36

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arguing that the evidence of honest services mail fraud was 1
insufficient to support a conviction. In his motion for a 2
judgment of acquittal, Botti argued that none of the testimony 3
relating to bribery of the Mayor of Shelton could be 4
considered in support of his conviction because the jury had 5
not voted to convict Botti of bribery. Botti argued that the 6
remaining evidence of bribes of Planning and Zoning Commission 7
officials was insufficient to support a conviction of honest 8
services fraud. 9
After the Supreme Court issued its opinion in Skilling, 10
130 S. Ct. 2896, Botti submitted a supplemental memorandum in 11
support of his motion for a judgment of acquittal, which 12
argued that the jury charge and verdict form left open the 13
possibility that the jury could have convicted Botti of honest 14
services mail fraud on a non-bribery theory in contravention 15
of the Supreme Court’s holding in Skilling. Botti claimed 16
that the indictment was defective insofar as it did not 17
“specifically allege that the scheme used to commit honest 18
services fraud was bribery”; instead, it “indicat[ed] a 19
general theory of honest services mail fraud, namely, that 20
defendant contrived a scheme or artifice to defraud by means 21
of fraudulent pretenses or misrepresentations.” Botti argued 22
that the Government’s proposed instruction—with which defense 23
counsel had expressed discomfort at the charge conference— 24

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would have complied with Skilling because it specified that 1
the Government’s theory of honest services mail fraud was 2
bribery. However, he claimed that the instruction actually 3
given to the jury did not comply with Skilling because it 4
conflated “general self-enrichment” with “actual bribery.” 5
Botti argued that the jury charge was defective because it 6
“did not limit self-enrichment to bribery as required by 7
Skilling, but rather referred to bribery as illustrative.” 8
The District Court denied Botti’s motions for a judgment 9
of acquittal and for a new trial. The District Court found 10
that there was “ample evidence that Botti extended numerous 11
favors to several Shelton public servants for the purpose of 12
obtaining in return favorable action on his development 13
applications, particularly the 828 Project, in derogation of 14
the Shelton citizenry’s right to their public servants’ honest 15
services.” The District Court rejected Botti’s argument that 16
the jury’s failure to return a verdict on the bribery charge 17
necessarily meant that the evidence of honest services fraud 18
was insufficient to support a guilty verdict. The District 19
Court first noted that in Yeager v. United States, 557 U.S. 20
110 (2009), the Supreme Court had instructed courts not to 21
attribute any meaning to the failure to return a verdict. 22
Furthermore, the District Court found that the evidence 23

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produced at trial was sufficient to support Botti’s conviction 1
for honest services mail fraud. 2
With respect to Botti’s objection to the jury charge 3
based on Skilling, the Court determined: 4
There is no substance to this argument. 5
Botti nowhere suggests what this alternative, 6
constitutionally impermissible theory of 7
wrongdoing might be. That is not surprising, 8
since there is no evidence in the record of any 9
sort of wrongdoing other than Botti’s bribery of 10
public officials. The indictment did not charge 11
any alternative theory. Neither the government 12
nor the defendant argued any other theory at 13
trial. Neither the jury charge nor the verdict 14
form suggests any other theory. There were no 15
facts, evidence or testimony presented at trial 16
that could reasonably support or give rise to an 17
alternative theory. Botti suggests none. To 18
conclude that the jury might have convicted the 19
Defendant on some theory of honest services mail 20
fraud other than the bribery theory suggested in 21
the jury charge would require pure speculation on 22
the Court’s part, and an assumption that the jury 23
acted in an unreasonable manner in contriving 24
some grounds for conviction other than the 25
obvious one clearly supported by the record. 26
27
Accordingly, the District Court denied the post-trial motions. 28
This appeal followed. 29
DISCUSSION 30
I. 31
The first issue is what standard of review applies to 32
Botti’s claim of error. Generally, the propriety of jury 33
instructions is a matter of law that is reviewed de novo. 34
United States v. Bahel, 662 F.3d 610, 634 (2d Cir. 2011). “A 35

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jury instruction is erroneous if it misleads the jury as to 1
the correct legal standard or does not adequately inform the 2
jury on the law.” Id. (quoting United States v. Bok, 156 F.3d 3
157, 160 (2d Cir. 1998)) (internal quotation marks omitted). 4
If the defendant objected to an erroneous jury 5
instruction at trial and raises the same claim of error on 6
appeal, a harmless error standard of review applies. See, 7
e.g., United States v. George, 266 F.3d 52, 58 (2d Cir. 2001), 8
vacated in part on other grounds, 386 F.3d 383 (2d Cir. 2004). 9
Under this standard of review, a conviction will be affirmed 10
only “if it is clear beyond a reasonable doubt that a rational 11
jury would have found the defendant guilty absent the error.” 12
United States v. Mahaffy, 693 F.3d 113, 136 (2d Cir. 2012) 13
(quoting United States v. Kozeny, 667 F.3d 122, 130 (2d Cir. 14
2011)) (internal quotation marks omitted). 15
If the defendant did not object to an erroneous jury 16
instruction before the jury retired to consider its verdict, a 17
plain error standard of review applies. See Johnson v. United 18
States, 520 U.S. 461, 465-66 (1997) (citing Fed. R. Crim. P. 19
30); Bahel, 662 F.3d at 634. Under this standard of review, 20
the Court of Appeals has discretion to reverse only if the 21
instruction contains “(1) error, (2) that is plain, and (3) 22
that affect[s] substantial rights.” Johnson, 520 U.S. at 467 23
(quoting United States v. Olano, 507 U.S. 725, 732 (1993)) 24

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(internal quotation marks omitted and alteration in original). 1
If those three conditions are met, a court may exercise its 2
discretion to correct the error only if the error “seriously 3
affect[ed] the fairness, integrity or public reputation of 4
judicial proceedings.” Id. at 467 (quoting Olano, 507 U.S. at 5
732) (internal quotation marks omitted). 6
Botti argues that he objected to the jury instruction, 7
and therefore, a traditional harmless error standard of review 8
should apply. This argument is without merit. Defense 9
counsel’s objection to the proposed instruction at the charge 10
conference was not based on the instruction’s failure 11
expressly to limit honest services fraud to bribery and 12
kickback schemes. Rather, Botti’s counsel objected to the 13
instruction because it was “so skewed to the allegations 14
here,” and it was not “a generic description of theft of 15
honest services.” In short, Botti objected because the 16
proposed instruction was too focused on bribery as the means 17
for committing honest services fraud, not because it lacked 18
that focus. These circumstances come close to a waiver of any 19
appellate challenge to the instruction for failing to limit 20
honest services mail fraud to bribery. See United States v. 21
Quinones, 511 F.3d 289, 321-23 (2d Cir. 2007) (discussing true 22
waiver). In any event, because Botti did not object at trial 23

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on the grounds raised in this appeal, harmless error review 1
does not apply. 2
Nor is modified plain error review warranted here. See 3
United States v. Viola, 35 F.3d 37, 42 (2d Cir. 1994) (placing 4
the burden on the Government “to show that plain error in 5
light of a supervening decision did not affect substantial 6
rights”). The Supreme Court’s decision in Johnson v. United 7
States, 520 U.S. 461, called into question the modified plain 8
error standard of review that this Court established in Viola. 9
In Johnson, the defendant had been charged with making a false 10
material declaration under oath before a grand jury in 11
violation of 18 U.S.C. § 1623. 520 U.S. at 463. The District 12
Court instructed the jury that materiality was a question for 13
the judge to decide, and the defense did not object. Id. at 14
464. The trial judge ultimately found that the statements 15
were material, and the jury returned a verdict of guilty. Id. 16
After Johnson’s conviction, but before her appeal to the Court 17
of Appeals, the Supreme Court decided United States v. Gaudin, 18
515 U.S. 506 (1995), which established that a jury must decide 19
materiality. Johnson, 520 U.S. at 464. When Johnson’s case 20
reached the Supreme Court, the Court applied plain error 21
review without mentioning modified plain error review. Id. at 22
466-67. The Court found that the failure to instruct the jury 23
that materiality was an element of the offense was error and 24

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that it was plain. Id. at 467-68. The Court did not decide 1
the third element—whether the forfeited error affected 2
substantial rights—because the Court determined that the 3
satisfaction of the first three factors only gave the Court 4
discretion to correct the error if the error seriously 5
affected the fairness, integrity, or public reputation of the 6
judicial proceedings. Id. at 468-70. The Court never placed 7
the burden of proof on the Government. See id. at 470. 8
Indeed, the Court cautioned against any unwarranted expansion 9
of or creation of any exceptions to the plain error rule in 10
Rule 52(b) of the Federal Rules of Criminal Procedure. Id. at 11
466. In the final step of its analysis, the Court evaluated 12
whether the defendant had presented a plausible argument that 13
the error in the charge had affected the fairness, integrity, 14
or public reputation of the proceedings. The Court concluded 15
that the error did not seriously affect “the fairness, 16
integrity or public reputation of judicial proceedings” and 17
affirmed the judgment of the Court of Appeals sustaining the 18
conviction. Id. at 470. 19
Without deciding whether Johnson overruled Viola, this 20
Court has frequently declined to reach the question of whether 21
the modified plain error standard of review continues to apply 22
when there has been a supervening change in the law after a 23

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conviction. 2 See, e. g., United States v. Nouri, No. 09-3627- 1
CR, 2013 WL 780918, at *6 n.2 (2d Cir. Mar. 4, 2013); Bahel, 2
662 F.3d at 634; Henry, 325 F.3d 93, 100 n.4 (2d Cir. 2003); 3
United States v. Outen, 286 F.3d 622, 639 n.18 (2d Cir. 4
2002). 3 In this case, it is also unnecessary to decide 5
whether the modified plain error standard of review survived 6
Johnson because the rationale animating the modified plain 7
error standard of review—that the defendant should not have to 8
show prejudice from an error when the defendant did not 9
contribute to the error and had no basis to object to the 10
error—does not apply. See Viola, 35 F.3d at 42-43. In Viola, 11
this Court explained that the purpose of the modified plain 12
error standard of review was to avoid insisting on “an 13
omniscience on the part of defendants about the course of the 14
2 In Mahaffy, 693 F.3d 113, this Court applied modified plain
error analysis. Id. at 136. However, in Mahaffy, the
defendant had objected at trial on the grounds raised in his
appeal. Id. at 122. Therefore, it would not have been unfair
to place the burden on the Government to show that the error
had not prejudiced the defendant.
3 Under similar circumstances, other Courts of Appeals apply
the traditional plain error standard of review. See, e.g.,
United States v. Pelisamen, 641 F.3d 399, 404 (9th Cir. 2011)
(applying a plain error standard of review in a case where
“there were no legal grounds for challenging the instructions
at the time they were given, but such legal grounds ha[d]
since arisen due to a new rule of law arising between the time
of conviction and the time of appeal”); see also id. at 404-05
(collecting cases and explaining that no Court of Appeals
other than the Court of Appeals for the Second Circuit has
adopted the modified plain error standard of review).

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-23-
law that we do not have as judges.” 35 F.3d at 42. At 1
Botti’s trial, the Government sought an instruction that 2
plainly would have established bribery as the only basis for 3
the honest services mail fraud charge alleged in this case. 4
Botti’s counsel resisted that instruction because it was “so 5
skewed” to the allegations against Botti. Modified plain 6
error review should not apply when it is the defendant’s 7
discomfort with the proposed jury instruction that contributed 8
to the error about which the defendant now complains. 9
Accordingly, in this case, the instruction will be reviewed 10
under the traditional plain error standard. 11
II. 12
Under a plain error standard of review, if this Court 13
finds that the jury instruction (i) was error; (ii) that the 14
error was plain; and (iii) that the error affected substantial 15
rights, then this Court (iv) has discretion to correct the 16
error, “but [it] is not required to do so.” See Olano, 507 17
U.S. at 735; see also Fed. R. Crim. P. 52(b). It is well 18
established that “the discretion conferred by Rule 52(b) 19
should be employed in those circumstances in which a 20
miscarriage of justice would otherwise result.” Olano, 507 21
U.S. at 736 (quoting United States v. Young, 470 U.S. 1, 15 22
(1985)) (internal quotation marks omitted). Accordingly, if 23
the first three conditions are met, this Court should exercise 24

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-24-
its discretion to correct the error only if it “seriously 1
affect[ed] the fairness, integrity or public reputation of 2
judicial proceedings.” Johnson, 520 U.S. at 470 (alteration 3
in original and citation omitted). 4
A. 5
In this case, the failure of the jury instruction to 6
specify that the Government was required to prove honest 7
services mail fraud by a bribery or kickback scheme was plain 8
error, satisfying the first two Olano factors. Error is 9
deviation from a legal rule, unless the rule has been waived 10
by “intentional relinquishment or abandonment of a known 11
right.” Olano, 507 U.S. at 732-33 (quoting Johnson v. Zerbst, 12
304 U.S. 458, 464 (1938)). Error is plain if it is clear or 13
obvious. Olano, 507 U.S. at 734. “Whether an error is 14
‘plain’ is determined by reference to the law as of the time 15
of appeal.” United States v. Garcia, 587 F.3d 509, 520 (2d 16
Cir. 2009) (quoting United States v. Gamez, 577 F.3d 394, 400 17
(2d Cir. 2009) (per curiam)) (quotation marks omitted); see 18
also Henderson v. United States, 133 S. Ct. 1121, 1130-31 19
(2013) (holding that regardless of whether a legal question 20
was settled or unsettled at the time of trial, a court of 21
appeals is bound to apply the law as it exists at the time of 22
appeal). 23

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-25-
The Supreme Court held in Skilling that the honest 1
services fraud encompassed by 18 U.S.C. § 1346 must be limited 2
to schemes involving bribes or kickbacks in order to avoid due 3
process concerns. See 130 S. Ct. at 2931. Botti correctly 4
argues that the District Court’s jury instruction on honest 5
services mail fraud failed to anticipate and, therefore, to 6
satisfy this requirement because it employed language broad 7
enough to encompass a non-bribery theory, which the Supreme 8
Court found unconstitutional in Skilling. This Court has held 9
that, after Skilling, it is error for a district court to fail 10
to limit honest services fraud to bribery or kickback schemes 11
in the jury instructions. See, e.g., United States v. Bruno, 12
661 F.3d 733, 740 (2d Cir. 2011). Because the District 13
Court’s instruction did not specify that only bribes or 14
kickbacks could support an honest services mail fraud 15
conviction, it was plainly erroneous. 16
B. 17
In this case, however, Botti has failed to establish that 18
the plain error in the charge affected his substantial rights. 19
When evaluating the effect of an allegedly erroneous jury 20
instruction, the jury charge must be read as a whole. See 21
generally United States v. Allah, 130 F.3d 33, 42 (2d Cir. 22
1997) (collecting cases). This Court has reversed in cases 23
tried before Skilling and decided on appeal after Skilling 24

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-26-
where the Government argued a non-bribery or -kickback scheme 1
theory of honest services mail fraud, or where the Government 2
intertwined an alternative theory with a bribery or kickback 3
scheme theory. See, e.g., Mahaffy, 693 F.3d at 136; Bruno, 4
661 F.3d at 739-40; see also United States v. Hornsby, 666 5
F.3d 296, 306-07 (4th Cir. 2012); United States v. Wright, 665 6
F.3d 560, 570-72 (3d Cir. 2012); United States v. Riley, 621 7
F.3d 312, 321-24 (3d Cir. 2010). In contrast, in cases tried 8
before Skilling and decided on appeal after Skilling where the 9
jury instruction did not specify that a guilty verdict could 10
be returned only if the jury found that the defendant engaged 11
in a bribery or kickback scheme, but the evidence would 12
support only a bribery or kickback scheme theory, this Court 13
has affirmed. See, e.g., Nouri, 2013 WL 780918, at *5-*8; see 14
also United States v. Andrews, 681 F.3d 509, 521 (3d Cir. 15
2012); United States v. Spellissy, 438 F. App’x 780, 783-84 16
(11th Cir. 2011) (affirming the denial of a petition for a 17
writ of error coram nobis); see generally Andrews, 681 F.3d at 18
521-28 (collecting cases). This is such a case. 19
Botti is correct that, after Skilling, a jury instruction 20
must require the jury to find that the defendant participated 21
in honest services mail fraud by way of a bribery or kickback 22
scheme. However, it does not follow that reversal is 23
necessary in every case in which the District Court erred by 24

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-27-
failing to give that instruction. Viewing the erroneous jury 1
instruction in this case in light of the charge as a whole and 2
in the context of proceedings in which deprivation of honest 3
services by bribery was the only theory that the evidence 4
would support and the only theory that the Government argued 5
at trial, the District Court’s failure to limit honest 6
services mail fraud to a bribery or kickback scheme did not 7
affect Botti’s substantial rights. 8
i. 9
Bribery is the only theory of honest services fraud that 10
the Government presented in the indictment or argued at trial, 11
and the District Court’s instructions on the mail fraud charge 12
reflected that. The District Court began its instructions by 13
reading most of the indictment to the jury. The indictment 14
detailed extensive allegations of Botti’s providing public 15
officials with money and other benefits in order to secure 16
approval for certain development projects. The District Court 17
instructed the jury on the bribery count, during which it 18
defined a bribe as “a corrupt payment that a person provides 19
to a public official with the intent to influence the official 20
in the performance of his or her public duties.” The District 21
Court then directed the jury to Count Three of the indictment, 22
the mail fraud charge, read the allegations and the relevant 23
statutory provisions, and explained the elements of the 24

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offense. Although the District Court did not explain that 1
bribery is the only theory that can support a conviction of 2
honest services mail fraud, bribery is the only example it 3
provided of how the Government could prove the honest services 4
deprivation prong of mail fraud. This is not a case where the 5
charge was interwoven with an alternative theory of how the 6
public could have been deprived of the honest services of its 7
officials such as by a conflict of interest theory, see, e.g., 8
Bruno, 661 F.3d at 739-40. 9
Botti argues that “[t]he District Court’s instruction 10
allowed the payment of a bribe to be but one of many paths 11
rather than the only path” to conviction of honest services 12
mail fraud. He suggests several potential alternative 13
theories that could have supported his conviction. These 14
theories are divorced from the context of the trial and cannot 15
plausibly explain the jury’s guilty verdict. 16
Botti argues that the definition of “scheme or artifice” 17
that the District Court provided allowed the jury to convict 18
him of honest services mail fraud based simply on a finding of 19
fraud, deception, or misrepresentation. The District Court 20
defined “scheme or artifice” as “a plan for the accomplishment 21
of an object,” and “a scheme to defraud” as, 22
[A]ny plan . . . or course of action to obtain money 23
or property or the intangible right of honest 24
services by means of materially false or fraudulent 25

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pretenses, representations, and promises reasonably 1
calculated to deceive persons of average prudence 2
. . . a plan to deprive another of money or property 3
or of the intangible right to honest services by 4
trick, deceit, deception, or swindle. 5
6
The District Court provided these definitions within the 7
larger explanation that the scheme or artifice element of 8
honest services mail fraud required “a scheme or artifice to 9
deprive the citizens of Shelton of the intangible right of the 10
honest services of the officials as alleged in the 11
indictment.” 12
In context, the jury could not have understood this 13
definition as anything more than a basic definition of a 14
scheme or artifice to defraud. The jury could not have 15
understood the definition as providing an independent theory 16
of honest services fraud. Mail fraud requires both a scheme 17
or artifice to defraud and an object of that fraud. 18
Pasquantino v. United States, 544 U.S. 349, 355 (2005). At 19
trial, the Government presented two theories of mail fraud, 20
each with distinct objects: (i) a scheme to obtain money 21
fraudulently from NewAlliance Bank, and (ii) a scheme to 22
deprive the citizens of Shelton of the honest services of 23
their public officials by bribery. The victim of the scheme 24
to obtain money fraudulently was NewAlliance Bank, whereas the 25
victims of the honest services fraud scheme were the citizens 26
of Shelton. The District Court made this clear when, at 27

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several points in the charge it clarified that, with respect 1
to the honest services charge, it was the public, or the 2
“citizens of Shelton,” who were the victims of the scheme or 3
artifice to defraud, and the District Court specified that the 4
trick or swindle involved in a bribe was that the bribee, 5
“while outwardly appearing to be exercising independen[ce] in 6
his or her official work . . . instead has been paid privately 7
for his or her public conduct.” Because the jury charge 8
cannot be read as endorsing, or even suggesting, a theory of 9
honest services mail fraud that is predicated on a 10
freestanding or amorphous swindle or trick, this theory cannot 11
explain the jury’s verdict. 12
Botti also argues that the jury could have convicted him 13
of honest services mail fraud based on the failure to disclose 14
the business relationship he had with Fracassini and Witkins 15
who testified on Botti’s behalf before the Planning and Zoning 16
Commission. Therefore, Botti argues that the jury instruction 17
permitted the jury to convict him based on his deception of 18
the Planning and Zoning Commission. However, the Government 19
did not suggest to the jury that sending employees to a public 20
meeting to advocate for Botti’s interests without disclosing 21
that they worked for Botti constituted honest services mail 22
fraud. The deception of the Planning and Zoning Commission 23
was used as an instance of the misrepresentations that Botti 24

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-31-
had used to obtain approval for the 828 Project from the 1
Planning and Zoning Commission and, as a result, financing 2
from NewAlliance Bank. 3
Moreover, the jury could not have convicted Botti of 4
honest services mail fraud on the basis of the deception of 5
the Planning and Zoning Commission consistent with the 6
District Court’s instructions. The honest services fraud 7
instruction was based upon the premise that “[a] public 8
official or local government employee owes a duty of honest, 9
faithful, and disinterested service to the public and to the 10
government that he or she serves.” Thus, the District Court 11
clarified, the public may be deprived of that right when an 12
official “uses his or her public position for self-enrichment” 13
by, for example, taking a bribe, because the official is no 14
longer “exercising independen[ce] in his or her official 15
work,” and the public is not receiving the public official’s 16
“honest and faithful service to which it is entitled.” This 17
definition of honest services mail fraud requires that a 18
public official be working dishonestly, unfaithfully, or 19
interestedly. A public official who has been deceived could 20
not reasonably fall within such a definition. 21
Botti also suggests that the jury could have relied on 22
evidence of self-enrichment without bribery to satisfy the 23
honest services prong of mail fraud. However, the District 24

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Court’s use of the term “self-enrichment” in the jury 1
instruction plainly encompassed bribery. There is no 2
reasonable view of the evidence that would support a finding 3
that the public officials enriched themselves other than 4
through the receipt of bribes. In this case, the Government 5
did not offer any alternative theory of self-enrichment, such 6
as through a conflict of interest scheme. See, e.g., Bruno, 7
661 F.3d at 740. 8
In two footnotes in his briefs to this Court, Botti 9
suggests that the jury could have convicted him of honest 10
services mail fraud based on his provision to Shelton public 11
officials of “gifts and benefits” that did not constitute 12
bribes. This cursory argument is not a basis for reversal. 13
“It is a settled appellate rule that issues adverted to in a 14
perfunctory manner, unaccompanied by some effort at developed 15
argumentation, are deemed waived. This rule has particular 16
force where an appellant makes an argument only in a 17
footnote.” Niagara Mohawk Power Corp. v. Hudson River-Black 18
River Regulating Dist., 673 F.3d 84, 107 (2d Cir. 2012) 19
(quoting Tolbert v. Queens Coll., 242 F.3d 58, 75 (2d Cir. 20
2001)) (quotation marks omitted). 21
Moreover, a gifts or benefits theory of honest services 22
mail fraud is inconsistent with the trial record. The 23
indictment charged and the trial record supported that the 24

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gifts Botti gave to the Shelton public officials were in 1
exchange for favorable actions that they took for him. With 2
respect to the Mayor, the indictment charged and the evidence 3
supported that Botti provided benefits to the Mayor of Shelton 4
from about 2002 to 2006 and that he “expected that the 5
benefits he provided to [the Mayor of Shelton] would result in 6
favorable treatment for Botti and his construction projects.” 7
Such a pattern of behavior is sufficient to establish bribery: 8
[I]n order to establish the quid pro quo essential 9
to proving bribery, the government need not show 10
that the defendant intended for his payments to be 11
tied to specific official acts (or omissions). 12
Rather, bribery can be accomplished through an 13
ongoing course of conduct, so long as evidence shows 14
that the favors and gifts flowing to a public 15
official [are] in exchange for a pattern of official 16
actions favorable to the donor. 17
18
Bahel, 662 F.3d at 635 (internal quotations marks and 19
citations omitted). 20
The Government also contended and the evidence supported 21
that the benefits that Botti gave to the members of the 22
Planning and Zoning Commission were made in exchange for their 23
support for the 828 Project. The gifts to the members of the 24
Planning and Zoning Commission were charged in the portion of 25
the redacted indictment under the heading, “Botti Provides 26
Things of Value to Public Officials For Their Assistance.” 27
The Government’s Request to Charge explained its theory of 28
honest services fraud as alleging the following: 29

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-34-
[Botti] engaged in a scheme to defraud the citizens 1
of Shelton, Connecticut of the intangible right to 2
the honest services of its public officials by 3
providing benefits to such officials with intent to 4
influence such officials. Where there is a stream 5
of benefits arranged by the payor to favor a public 6
official, the Government need not demonstrate that 7
any specific benefit was received by the public 8
official in exchange for a specific official act. 9
10
It was unnecessary for the District Court “to use the magic 11
words ‘corrupt intent’ or ‘quid pro quo’ to effectively charge 12
a jury on bribery.” See Bahel, 662 F.3d at 635. 13
Botti’s alternative theories are contrary to the only 14
theory of honest services mail fraud that the Government 15
actually presented to the jury and that the Government asked 16
the Court to explain as its theory. Accordingly, these 17
alternative theories do not demonstrate that Botti’s 18
conviction was based on a non-bribery theory of honest 19
services mail fraud. 4
20
4 Botti also argues that the jury’s failure to return a guilty
verdict on the bribery charge demonstrates that it could not
have convicted him of honest services mail fraud on a bribery
theory. This argument is without merit.
The Supreme Court has instructed lower courts not to
attempt to divine the meaning of a hung count when analyzing a
unanimous verdict on another count. See Yeager, 557 U.S. at
121-22. Botti attempts to distinguish Yeager on the basis
that it involved a hung jury and an acquittal, whereas this
case involves a hung jury and a conviction. However, the
reasoning in Yeager was not as limited as Botti suggests. Id.
at 120-22. The Court explained that “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.” Id. at 122.

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ii. 1
Finally, assuming that we had discretion to reverse the 2
conviction, we would not exercise that discretion in this case 3
because the error did not “seriously affect the fairness, 4
integrity or public reputation of judicial proceedings.” 5
Johnson, 520 U.S. at 470 (alteration omitted). The Government 6
sought a proper instruction that would have obviated the error 7
in the jury charge and the defense demurred because that 8
charge hewed too closely to the actual proof in the case. The 9
evidence of the bribe-based honest services mail fraud was 10
overwhelming and there was no other plausible theory presented 11
to the jury. On this record, it cannot be said that the error 12
seriously affected the fairness, integrity, or public 13
reputation of the judicial proceedings. 14
Botti asks this Court to intuit the jury’s logic in
returning a conviction on the honest services mail fraud
charge by analyzing the bribery charge on which the jury was
unable to reach a verdict. Yeager forecloses this approach.
See, e.g., Hornsby, 666 F.3d at 305 n.4 (rejecting the
argument that if “bribes were the dominant theory used to
convict [the defendant], then the jury would have found him
guilty of the counts that deal directly with facts supporting
[the defendant]’s receipt of money”).
Moreover, this would be a particularly inappropriate case
to find an exception to Yeager. The honest services mail
fraud charge of which Botti was convicted charged a scheme
from in or about 2002 to defraud the citizens of Shelton of
the honest services of the Mayor of Shelton and of other
Shelton public officials. Unlike the bribery count, it was
not limited to a single instance of providing money to the
Mayor of Shelton in or about June 2006.

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CONCLUSION 1
We have considered all of the arguments of the parties. 2
To the extent not specifically addressed above, they are 3
either moot or without merit. For the reasons explained 4
above, we AFFIRM the judgment of the District Court. 5

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