United States v. Reichberg

5 F.4th 233

UNITED STATES of America, Appellee,

v.Jeremy REICHBERG, also known as Jeremiah Reichberg, also known as Yermy Reichberg, Defendant-Appellant.^*

No. 19-1645-cr

August Term, 2020

United States Court of Appeals, Second Circuit.

Argued: September 21, 2020

Decided: July 15, 2021

Jessica Lonergan (Martin S. Bell, Kimberly J. Ravener, Thomas McKay, on the brief), Assistant United States Attorneys, for Audrey Strauss, United States Attorney for the Southern District of New York, New York, NY; for Appellee United States of America.

John C. Meringolo (Clara Kalhous, Anjelica Cappellino, on the brief), Meringolo & Associates, P.C., New York, NY; for Defendant-Appellant Jeremy Reichberg.

Before: Walker, Carney, and Park, Circuit Judges.

John M. Walker, Jr., Circuit Judge:

Defendant-Appellant Jeremy Reichberg ran a business selling favorable outcomes to encounters with the New York Police Department (NYPD), which he secured by bribing NYPD officers. Following a jury trial, Reichberg was convicted on multiple bribery charges and obstruction of justice in the United States District Court for the Southern District of New York (Gregory H. Woods, J. ). Reichberg now appeals his convictions, challenging the pre-trial denial of his motion to suppress evidence, a number of evidentiary and trial-management rulings, the district court's failure to inquire into one of his attorneys’ potential conflict of interest, the jury instructions, and the sufficiency of the evidence in support of his convictions. None of Reichberg's arguments has merit. Accordingly, we AFFIRM the judgment of conviction.¹

BACKGROUND

Jeremy Reichberg was a self-styled Brooklyn "liaison" to the NYPD,² in the business of selling preferred outcomes to encounters with law enforcement. Reichberg's business model functioned by providing lavish, in-kind benefits to high-ranking NYPD officers who, in turn, exerted their influence to get Reichberg's friends and clients favorable treatment from the NYPD.

Beginning in 2013, Reichberg partnered in this enterprise with Jona Rechnitz, who pled guilty and testified at trial as a cooperating witness for the government. Reichberg would contact NYPD officers to request the favors and, if the officer came through, would tell Rechnitz which officer should receive benefits. The officers with whom the pair cultivated these relationships included, among others, Philip Banks III, the Chief of the Department and an unindicted co-conspirator in the scheme; Chief Michael Harrington, Banks's Executive Officer, who pled guilty; and James Grant, who was a lieutenant in Reichberg's precinct before his promotion to the 19th Precinct's Commanding Officer. Grant was Reichberg's co-defendant at trial.

The benefits the officers received took many forms, including trips on private jets and luxury hotel stays with prostitutes; football, basketball, and hockey tickets worth tens of thousands of dollars; international travel arrangements to Israel and the Dominican Republic; home improvements worth thousands of dollars; and approximately $60,000 in business steered toward certain of the officers’ private security companies.

Reichberg and Rechnitz's largesse obtained a host of favors from NYPD officers. For example, one of Reichberg's clients was arrested three separate times, but each time was released from custody after Reichberg contacted NYPD officers. Grant exerted his influence to secure the processing and approval of gun licenses, even when those applications were deficient or the applicants unqualified for the type of license sought. Grant conferred this benefit on Reichberg, who obtained a full-carry gun license without the licensing division bothering to investigate whether he qualified for one. Banks secured Grant's promotion to Inspector in the 19th Precinct, on Manhattan's Upper East Side—a strategic posting valuable to Reichberg and Rechnitz because of its proximity to Rechnitz's Manhattan office. Officers also provided police rides and police escorts to Reichberg and Rechnitz's friends to cut through traffic, arranged for an NYPD police boat to give rides to attendees at a barbecue Reichberg hosted, and arranged for an NYPD helicopter to do a flyover of a cocktail cruise organized by Reichberg.

Ultimately, in April 2018, an indictment³ filed in the Southern District of New York charged Reichberg with honest services wire fraud, in violation of 18 U.S.C. §§ 1343, 1346, and 2; conspiracy to commit honest services wire fraud, in violation of 18 U.S.C. §§ 1343, 1346, and 1349 ; payment of bribes and gratuities, in violation of 18 U.S.C. §§ 666 and 2; conspiracy to pay bribes and gratuities, in violation of 18 U.S.C. § 371 ; and obstruction of justice, in violation of 18 U.S.C. §§ 1512(c)(1) and 2.⁴ The indictment charged Grant with honest services wire fraud, conspiracy to commit honest services wire fraud, conspiracy to pay bribes and gratuities, and receipt of bribes and gratuities, in violation of 18 U.S.C. § 666.

In January 2019, following an eight-week jury trial, Reichberg was convicted of honest services wire fraud, conspiracy to commit honest services wire fraud, and conspiracy to pay bribes and gratuities (the bribery counts), as well as obstruction of justice. He was acquitted of the payment of bribes and gratuities. Grant was acquitted of all charges.

The district court sentenced Reichberg to 48 months’ imprisonment on each of the four counts of conviction, to run concurrently, and two years’ supervised release. This appeal ensued.

DISCUSSION

On appeal, Reichberg challenges his convictions as follows: (1) evidence collected from his electronic devices should have been suppressed because it was seized in violation of the Fourth Amendment; (2) the district court prejudiced him by correcting a misstatement of law made by co-defendant Grant's attorney; (3) evidence of uncharged conduct should have been excluded as unfairly prejudicial; (4) the government disclosed certain documents in an untimely fashion, prejudicing his defense; (5) the temporary admission of a phone call (GX-300A) against his co-defendant generated spillover prejudice against him; (6) the admission of his non-testifying co-defendant's statements against that co-defendant violated Reichberg's Confrontation Clause rights; (7) the district court abused its discretion in excluding two proposed expert witnesses for the defense; (8) the district court erred by failing to hold a hearing to investigate his attorney's potential conflict of interest; (9) the jury was wrongly instructed on the relevant law; and (10) the evidence was insufficient to support his convictions. None of these arguments has merit.⁵

I. Motion to suppress

Reichberg argues that the district court erred by denying his motion to suppress evidence from certain email accounts and electronic devices. He does not contest the initial seizure of those accounts and devices, but rather, he argues that the government's overly broad production of data to his co-defendants from those devices worked an independent unreasonable seizure in violation of the Fourth Amendment. We assume for the sake of discussion that what Reichberg describes could be an independent Fourth Amendment violation, but we determine that, under the circumstances, suppression was not warranted.

The Fourth Amendment guarantees the right to be free from unreasonable searches and seizures.⁶ "To safeguard Fourth Amendment rights, the Supreme Court created ‘an exclusionary rule that, when applicable, forbids the use of improperly obtained evidence at trial.’ "⁷ Suppression (i.e., exclusion) of evidence is required only when suppression would "deter future unlawful ... conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures."⁸

The district court, whose factual findings we review only for clear error,⁹ denied Reichberg's motion upon finding that the government produced the complained-about data after an "objectively reasonable, if unfortunate, miscommunication between the parties regarding what was being produced and to whom."¹⁰ Specifically, the district court found that the government believed Reichberg was aware that it was producing all data, rather than only responsive data, to his co-defendants. Supporting this belief was the fact that the protective order entered in the case described the government's discovery practices to that effect and the fact that the government had previously made a similarly broad production of Grant's and Reichberg's emails to all defendants.

We easily agree with the district court, upon de novo review of its denial of Reichberg's suppression motion,¹¹ that suppression was not required in this circumstance. In light of the communications between the parties, it is plain that the government was operating under an objectively reasonable belief that Reichberg had consented to its production practices. And where the government reasonably believed the defendant consented to the challenged practice, "suppression would do nothing to deter ... misconduct."¹²

II. Misstatement of law by Grant's counsel

Reichberg argues that he is entitled to a new trial because he was prejudiced by the district court's instruction to the jury that corrected a legal misstatement by Grant's counsel. We discern no error in the district court's handling of the situation and no prejudice to Reichberg.

Grant's counsel concluded his opening statement to the jury with a misstatement of law, stating: "[I]f you believe Jimmy Grant and Jeremy Reichberg are friends, you must vote not guilty."¹³ The government immediately moved for a curative instruction, and the district court received briefing and heard argument from counsel on how to address the problem.

The district court then advised the jury that what Grant's counsel had said was not the law. It elaborated:

Of course, being friends with someone is not against the law, and giving something of value to a public official solely out of friendship is also

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