United States v. Skelos

988 F.3d 645

UNITED STATES of America, Appellee,

v.Dean SKELOS, Adam Skelos, Defendants-Appellants.

Nos. 18-3421-cr

18-3442-cr

August Term, 2019

United States Court of Appeals, Second Circuit.

Argued: February 13, 2020

Decided: February 23, 2021

Alexandra A.E. Shapiro, (Fabien M. Thayamballi, on the brief), Shapiro Arato Bach LLP, New York, NY, for Defendant-Appellant Dean Skelos.

Theodore Sampsell-Jones (on the brief), Mitchell Hamline School of Law, St. Paul, MN, for Defendant-Appellant Dean Skelos.

John J. Kenney, (Julian S. Brod, Allison N. Angel, on the brief), Hoguet Newman Regal & Kenney, LLP, New York, NY, for Defendant-Appellant Adam Skelos.

Thomas McKay, (Edward Diskant, Douglas Zolkind, Won S. Shin, on the brief), Assistant United States Attorneys, for Audrey Strauss, United States Attorney for the Southern District of New York, for Appellee.

Before: Walker, Sack^* , and Carney, Circuit Judges.

John M. Walker, Jr., Circuit Judge:

Defendants-Appellants Dean and Adam Skelos, father and son, appeal from their convictions on multiple public corruption charges entered in the United States District Court for the Southern District of New York (Kimba Wood, J .). Dean and Adam Skelos primarily challenge the government's reliance on the "as opportunities arise" theory of bribery and the district court's related jury instructions. They also challenge the appropriateness of the Southern District of New York as a venue, whether one of their statutes of conviction, 18 U.S.C. § 666, permits conviction for the acceptance of gratuities, the district court's decision to quash certain subpoenas, and the district court's denial of an evidentiary hearing to explore alleged government leaks of grand jury information. Adam Skelos separately argues that certain evidence was unduly prejudicial and that there was insufficient evidence to convict him on certain public corruption charges because he lacked knowledge of the specific official acts that Dean Skelos allegedly promised in exchange for benefits to Adam Skelos. We conclude that Dean and Adam Skelos's arguments are without merit. Accordingly, we AFFIRM the judgments of conviction in their entirety.

BACKGROUND

The factual background of this appeal, as presented at the second trial, is essentially undisputed. From 2011 to 2015, Dean Skelos, a Republican senator from Nassau County, was the Majority Leader of the New York State Senate. Among other things, the Majority Leader is responsible for making decisions on Senate committee memberships and chairmanships, advancing bills out of committees, determining the bills that make it to the Senate floor for a vote, and, along with the Speaker of the Assembly and the Governor, developing the New York State budget. As Majority Leader, Dean Skelos was highly influential in his home district because the state government provides financial assistance to counties and must approve certain county-level actions, such as modifications of tax laws. Relevant to this appeal, Adam Skelos is the adult son of Dean Skelos.¹

The Glenwood Scheme

In late 2010, while serving in the New York State Senate but before he assumed his position as Majority Leader, Dean Skelos attended a meeting at Glenwood Management, a New York-based real estate company. At that meeting, Glenwood's founder Leonard Litwin and Glenwood General Counsel Charles Dorego discussed with Skelos rent regulation legislation, including the Senate's periodic renewal of Section 421-a, a state tax abatement. Section 421-a was critical to Glenwood's business, and Glenwood personnel lobbied extensively to ensure that the provision remained in effect. Glenwood personnel understood that Section 421-a could be changed in ways that would affect Glenwood's business. Skelos assured those present that the Section 421-a renewal would easily pass the Senate. At the conclusion of the meeting, Skelos asked Litwin and Dorego if they could help Adam break into the title insurance business by "throw[ing] some title work his way."² Litwin sent Dorego to meet with Adam, but Dorego did not offer any work or compensation to Adam following the meeting.

In March 2011, Dean Skelos met again with Glenwood personnel and, this time, with representatives of the Rent Stabilization Association (RSA), a trade organization of residential landlords. Those at the meeting discussed renewals of rent regulations and Section 421-a, including possible changes to these laws. At the end of the meeting, Skelos again asked Litwin and Dorego if they could find some title insurance work for Adam. Litwin again asked Dorego to meet with Adam, and Dorego scheduled a meeting for May 6, 2011.

On May 5, 2011, the day before Dorego's meeting with Adam, Glenwood personnel met with Skelos to discuss competing positions surrounding the rent regulation and Section 421-a renewals. At the end of that meeting, Dorego told Skelos that Dorego would find a job for Adam with AbTech Industries, an environmental technology company that specializes in supporting counties’ water treatment plants. Dean Skelos thanked Dorego for seeing Adam.

The next day, at his meeting with Adam, Dorego offered to find a job for Adam with AbTech, in which Litwin's family and Dorego were stockholders and where Dorego had connections.

In June 2011, Dorego travelled to Albany to meet with Skelos at the end of the legislative session, when the rent regulation and Section 421-a legislation was being finalized. Outside his office, Skelos told Dorego that Section 421-a was going to be fine but that Adam starting with AbTech was going to take a long time. Skelos asked Dorego to find Adam other work in the meantime. Skelos later called Dorego to let him know that Section 421-a was extended and that the rent regulations were being renewed in a way that would be favorable to Glenwood.

Skelos asked Dorego to provide work for Adam on five more occasions, one of which followed a meeting explicitly about rent regulations. On another occasion, after receiving an email from Adam complaining that Dorego had not found title insurance work for him, Skelos called Glenwood's chief lobbyist to make it clear that he really wanted Dorego to find title insurance work for Adam. At trial, Dorego testified that Skelos's conduct came off as "more like a soft demand" than a "request."³ Skelos, however, never explicitly threatened Glenwood personnel or explicitly linked particular legislative outcomes to Dorego's assistance to Adam.

In advance of an October 2012 meeting with Skelos, Dorego emailed Adam saying that he could refer $20,000 of business to Adam. At the October meeting, Skelos thanked Dorego for what he did for Adam. In February 2013, an executive with American Land Services (ALS), a company with which Glenwood did business, handed an envelope containing a $20,000 check to Adam at a Long Island restaurant, even though Adam had done no work for ALS and had never discussed or met with the company about work on any particular deal. Adam took the check and never discussed it again with ALS personnel.

In the months leading up to the $20,000 payment, Glenwood personnel also helped finalize the terms of a contract between Adam and AbTech. Skelos discussed AbTech's proposed terms with Adam and had several calls with Glenwood's chief lobbyist the same day.

Meanwhile, in November 2012, at the urging of Glenwood personnel, AbTech retained Adam Skelos on a $4,000-per-month consulting contract, even though, as Adam himself said on a recorded phone call, he "literally kn[e]w nothing about water or ... any of that stuff."⁴ Adam's role with AbTech was described as assisting it with legislative matters in the state of New York and other government relations work related to storm water legislation.

The AbTech Scheme

In April 2013, AbTech submitted a bid in response to a Nassau County request for proposal (RFP) for a storm water project. The company's bid was a top priority that required it to expend "substantial resources" for several weeks.⁵ AbTech personnel knew that other companies were going to submit bids, but Adam assured them that there would be no competition.

Four days after bids were due, Adam called Dorego, livid that the AbTech engineers were going to make more money from the proposed project than he was. Adam informed Dorego that he had spoken to his father and that, unless Adam made more money, pushing the RFP through would not be worth it for Adam and Skelos. Dorego then emailed AbTech's CEO as follows:

I'm told he's about 45 days away from producing the legislation and the RFP to do up to ten million project with you. He's hesitant (and his dad called) to do it with the engineer's [sic] making more money than him. If he doesn't get like a 4% commission I think they don't think it's worth pushing through.⁶

Dorego admitted at trial that this was an "extortionist" threat to the company.⁷ AbTech's Vice President also interpreted this email as a threat because Dean Skelos had the ability to produce state legislation relevant to the Nassau County contract that could impact the contract's value to AbTech. Even though Adam was not contractually entitled to a raise, the company increased Adam's monthly compensation from $4,000 to $10,000 after Nassau County accepted AbTech's bid.

Skelos later told Adam that he would pass legislation specific to the storm water issue, which Adam conveyed to AbTech personnel. Skelos's office then proposed changes to the New York state budget to provide funding for storm water infrastructure projects. When the state budget was adopted, AbTech was assured that the storm water project contract would be funded.

The PRI Scheme

At a fundraiser in late 2010, Dean Skelos asked Anthony Bonomo, the CEO of Physician's Reciprocal Insurers (PRI), a New York-based medical malpractice insurer, if Bonomo could send work to U.S. Legal Support, a company with which Adam was involved. Bonomo felt that he should do it because Skelos was a state senator, and PRI had important legislation up for...