United States v. Mosberg (866 F. Supp. 2d 275, 2011)

Opinion

WOLFSON, District Judge:

Presently before the Court is a Motion by Defendant Edward J. Mosberg (“Defendant” or “Mosberg”) to dismiss the Second Superseding Indictment (“Indictment”) pursuant to Fed. R. Crim. Pro. 12(b)(3). Mosberg, a real estate developer, is charged with the following counts, in connection with his alleged relationship with the former attorney for the Planning Board who, at times, acted as Township Attorney for Parsippany-Troy Hills (“the Attorney” or “Montefusco”): (a) conspiracy to commit honest services fraud in violation of 18 U.S.C. § 1349 (Count 1); (b) honest services fraud in violation of 18 U.S.C. §§ 1341 and 1346 (Counts 2-7); and bribery in violation of 18 U.S.C. § 666(a)(2) (Counts 8-11). Mosberg is, further, charged with aiding and abetting in Counts 2-11, in violation of 18 U.S.C. § 2.

Mosberg challenges each count of the Indictment as insufficiently plead. He, further, brings statutory and constitutional challenges to the conspiracy and honest services fraud statutes or counts. Finally, Mosberg asks the Court to conduct an in camera review of the grand jury proceedings that resulted in the instant Indictment. After thoroughly considering the parties’ initial briefing, holding oral argument, and directing the parties to submit supplemental briefing, the Court denies Defendant’s motion to dismiss as to all counts, with the exception of the aiding and abetting charges linked to Counts 8-11. I, further, deny Mosberg’s request for in camera review of the grand jury proceedings. The reasoning underlying my decision follows.

I. BACKGROUND

A. The Alleged Scheme to Defraud

The Indictment alleges that Mosberg engaged in a several-year long bribery-based honest services fraud scheme, and conspiracy to defraud, with Montefusco, the Attorney for the Parsippany-Troy Hills Planning Board (“Planning Board” or “the Board”) and, at times, attorney for Parsippany-Troy Hills Township (“the Township”). As a commercial and residential real estate developer, Mosberg oversaw his development entities’ business involvement with the Township, including efforts to obtain various development approvals and resolutions from the Planning Board. Count 1, ¶¶ la, Id. Mosberg was also involved in various legal disputes with the Township. Id. at ¶ Id. These disputes revolved around several different matters, including Mosberg’s affordable housing obligations to the Township and the portion of sewer and water collection fees Mosberg was required to pay to the Township. Id. The disputes involved “[millions of dollars in judgments, settlements, and legal fees....” Id.

The Attorney served as the Planning Board’s legal advisor, rendering advice on pending development applications and representing the Board concerning all litigation. Id. at ¶ le. At times, the Attorney also represented the Township concerning litigation between the Township and Mos-berg. Id. at ¶ If. From 1996 through 2003, the Attorney served on the mediation team for the Council of Affordable Housing, which team was assembled to mediate affordable housing disputes between the Township and Mosberg, among other developers. Id. The Attorney, further, participated in settlement negotiations regarding the sewer and water fee disputes.

According to the Indictment, from 1997 through 2007, the Attorney used his position as Planning Board attorney and, at times, on behalf of the Township directly, to “assist MOSBERG with development-related business and litigation involving the Township and the Planning Board, without the public’s knowledge, as specific opportunities arose.” Count 1, ¶¶ 3, 4. For example, in 1998, the Attorney represented the Township in litigation involving another developer who sought to develop a residential property known as Mazda-brook. Count 1, ¶ 10c. After the Township prevailed in that litigation, “Mosberg received a secret recommendation from the Attorney that Mosberg purchase Mazdabrook and apply to build houses rather than apartments.” Id. The Attorney knew that the Township would approve that type of application. Mosberg heeded the Attorney’s advice and, upon receipt of the development application, the Attorney allegedly expedited its approval. See id.

In addition, the Indictment alleges that, from about 1997 through 2005, Mosberg was engaged in litigation with the Township over sewer-connection fees related to previously executed developer agreements between Mosberg and the Township. Count 1, ¶ 10a. Allegedly, the Attorney “endors[ed] developer’s agreements between the Township and MOSBERG entities that undermined the Township’s legal position in the litigation.” Id. at ¶ 10b. The applications recommended by the Attorney supported Mosberg’s method of calculating sewer-connection fees rather than that of the Township, and exempted Mos-berg from the payment of any fees. Id.

Several other official actions are alleged in the Indictment. For one, the Attorney expedited development applications for Mosberg on a continuing basis. Count 1, ¶ 10c. The Attorney, further, disclosed confidential Township litigation strategy to Mosberg, to the Township’s detriment. Count 1, ¶ lOd. Lastly, in 2006, Mosberg is alleged to have offered the Attorney a six-figure payment in exchange for the Attorney’s official assistance in “resolving outstanding litigation and obtaining Planning Board approval to build additional housing units at Parkside Gardens,” one of Mosberg’s developments. Id. This transaction was never completed, however, because the grand jury’s investigation became public before any payment was made. Id.

The Indictment alleges that, beginning in 2002, Mosberg engaged in favorable real estate deals with several of the Attorney’s family members as a means of rewarding the Attorney for his assistance. Count 1, ¶¶ 5, 6a. These deals included, inter alia, discounted purchase prices, free property upgrades, lenient settlement dates, and the waiver of contract contingencies. Id. Certain of the properties purchased by the Attorney’s family members were “flipped,” i.e., purchased and then quickly resold, which resulted in a profit for the family member.

One such real estate transaction earned the participating family member a profit of $58,955, before capital gains tax. Id. at ¶ 6a(ii) (“Property # 3”). According to the Indictment, Mosberg facilitated this transaction by allowing the family-member, in May of 2002, to enter into a contract to purchase the property for $275,000. That contract provided that the family-member purchaser was to close on the property “upon issuance of a certificate of occupancy....” Id. at ¶ 5b. When the certificate of occupancy was issued in November of 2002, Mosberg did not enforce that contract provision and, instead, allowed the family-member purchaser to close three months later in February of 2003. Id. at ¶ 6a. A few months later, in June of 2003, the property was sold to a third party for $360,000, resulting in the $58,955 profit. Id.

Importantly, the Indictment further alleges that some of the Attorney’s family members transferred a total of $36,000 of the sale proceeds to the Attorney’s bank account. Count 1, ¶ 8. The deposits to his bank account were not directly transferred there, but were “concealed and transferred through various bank accounts held by certain members of the Attorney’s family.” Id. In short, the Indictment alleges that, by “allowfing] the Family Members to successfully flip residential properties and derive substantial proceeds from their sales,” Mosberg provided monies and personal benefits, both directly and indirectly, to the Attorney. Id. at ¶ 7.

Despite receipt of certain of the real estate sale proceeds, the Attorney did not disclose his relationship with Mosberg, and/or the real estate transactions involving Mosberg and the Attorney’s family members, to the Township or Planning Board. Count 1, ¶ 9. He, further, failed to disclose any receipt of monies or benefits from the real estate transactions on his annual Local Government Ethics Law Financial Disclosure Statements filed in 2004 and 2007. Id.; Count 5 and 7. Under New Jersey’s Local Government Ethics Law, “local government officers” must file an annual financial disclosure statement specifying “[e]aeh source of income, earned or unearned, exceeding $2,000 received by the local government officer or a member of his immediate family during the preceding calendar year.” N.J.S.A. 40A:9-22.6(a)(1). In addition to disclosing income, each local government officer must also disclose “[e]aeh source of gifts, reimbursements or prepaid expenses having an aggregate value exceeding $400 from any single source ... received by the local government officer or a member of his immediate family during the preceding calendar year.” Id. at (a)(3). Further, the officer must disclose “[t]he address and brief description of all real property in the State in which the local government officer or a member of his immediate family held an interest during the preceding calendar year.” The Indictment alleges that the Attorney’s failure to disclose on his financial disclosure forms the benefits and monies he and his children received was done in an attempt to conceal the bribery-based conspiracy. Id. at Count 1, ¶ 9.

Based on Mosberg’s and the Attorney’s allegedly improper relationship, and the attendant, though convoluted, exchange of monies, the Indictment asserts that Mos-berg and the Attorney engaged in a scheme to defraud the Township of the Attorney’s honest services. Specifically, the Indictment charges one count of conspiracy to commit honest services fraud in violation of 18 U.S.C. § 1349 (Count 1); five counts of honest services fraud in violation of 18 U.S.C. §§ 1341 and 1346 (Counts 2-7), and bribery affecting federal funds in violation of 18 U.S.C. § 666(a)(2) (Counts 8-11). As noted, Mosberg is, further, charged with aiding and abetting in Counts 2-11, in violation of 18 U.S.C. § 2.

B. Procedural History

The procedural history of this criminal proceeding is protracted and merits separate account. The Government originally indicted Mosberg on September 18, 2008, charging him with one count of conspiracy to commit honest services fraud in violation of 18 U.S.C. § 1349 (Count 1); five counts of honest services fraud in violation of 18 U.S.C. §§ 1341 and 1346 (Counts 2-7), and bribery affecting federal funds in violation of 18 U.S.C. § 666(a)(2) (Counts 8-11). The original indictment also charged him with aiding and abetting, under 18 U.S.C. § 2.

In this earlier indictment, the Attorney was primarily described as the Planning Board Attorney or “PB Attorney.” Stating that the Attorney also worked directly for the Township in some instances, the indictment alleged that the Attorney was appointed as “interim Township Attorney” in 2005, and that he served in that capacity “for a time.” Indictment dated Sept. 18, 2008, Count I, ¶ Id, If. The only specific instance of the Attorney’s role as interim Township Attorney mentioned in the indictment is his alleged representation of the Township in connection with the Township’s negotiation over Mosberg’s Parkside Gardens development. Id. at ¶ If.

The scheme to defraud was described, in the original indictment, as a scheme to defraud the Township of the Attorney’s honest services “pursuant to (a) New Jersey law and (b) his state common law obligation as a fiduciary for the public.... ” Indictment dated Sept. 18, 2008, Count I, ¶ 2. Based on these state law sources, the indictment asserted, the Attorney was obligated to “refrain from receiving bribes and other corrupt benefits ...; and [to] disclose conflicts of interest and other material information in matters over which the [ ] Attorney exercised, and attempted to exercise, official authority and discretion, that resulted in his direct and indirect personal and financial gain.” Id. The indictment also alleged that Mos-berg offered, though he did not ultimately give, the Attorney a six-figure corrupt payment.

Notably, two of the five honest services fraud counts under 18 U.S.C. § 1341 and § 1346 were for mailings, by the Attorney, of Local Government Ethics Law Financial Disclosure Statements. The indictment alleged, in Counts 5 and 7, that these disclosures fraudulently failed to disclose the monies and benefits that the Attorney received from Mosberg. See Indictment dated Sept. 18, . 2008, Counts 2-7, ¶4. Specifically, the indictment asserts that it was part of the scheme for the Attorney not to disclose his receipt of monies and benefits on his disclosure forms, or to otherwise not disclose his receipt of the monies and benefits to the Planning Board. Id., Count 1, ¶ 7.

Shortly after Mosberg was indicted, he moved for a Bill of Particulars pursuant to rule 7(f) of the Federal Rules of Criminal Procedure. Through that motion, Mos-berg sought “key facts, dates, and events that form the bases of the Government’s claims that [he] engaged in illegal conduct.” Memo of Law in Supp. of Def. Mot. for a Bill of Particulars at 2. Following ah extended briefing schedule, the Court held oral argument on the motion on January 29, 2009. The Court denied Mosberg’s motion based on “certain representations [made] during the hearing” by the Government, whereby the Government agreed to provide more precise dates as the Government’s “preparation continue[d].” January 29, 2009 Transcript at 13:7-12; Order dated January 29,2009.

Mosberg then filed a motion to dismiss the indictment in February 2009, arguing, inter alia, that the indictment did not allege facts constituting quid pro quo bribery. In connection with that motion, Mos-berg also urged the Court to conduct an in camera review of the grand jury proceeding that resulted in the September 18, 2008 indictment. Mosberg argued, in support of his request for in camera review, that the indictment erroneously included two pages numbered “4,” which each contained distinct allegations regarding the date that the Attorney was appointed as interim Township Attorney. The first page 4 stated that the Attorney was appointed “[i]n or about 2005,” while the second page 4 stated that he was appointed “[i]n or about May 2006.” In light of this discrepancy, Mosberg asked the Court to conduct an in camera review for the purpose of determining whether “this or any other error so infected the Grand Jury proceeding that the Indictment is defective and should be dismissed.” Def. Ltr. dated Mar. 3, 2009 at 2.

Shortly thereafter, on March 26, 2009, the Government filed a Superceding Indictment. This indictment corrected the duplicate page 4 error, and removed any reference to the year during which the Attorney was appointed as interim Township Attorney. This indictment stated merely that the Attorney served as interim Township Attorney “at certain times.” Superceding Indictment, Count 1, ¶ Id. In addition, the Superceding Indictment removed the reference to the Attorney serving as interim Township Attorney in the Parkside Gardens development negotiations. In its place, the Superceding Indictment alleges that “[t]he Attorney, on certain occasions, also represented the Township in litigation in which the Township and MOSBERG development entities were parties.” Id.

Apart from these changes, the Superceding Indictment mirrored the original indictment. As in the original indictment, the Superceding Indictment alleged, in Counts 5 and 7, that the Attorney failed to disclose the monies and benefits that the Attorney received from Mosberg on his local government disclosure forms. See Superceding Indictment, Counts 2-7, ¶ 4. Moreover, the Superceding Indictment contained the allegation that it was part of the overarching fraudulent scheme for the Attorney to conceal his receipt of the monies and benefits. Id., Count 1, ¶ 9.

The next month, in April of 2009, Mos-berg filed another motion for a Bill of Particulars, this time for clarification of the Superceding Indictment. This motion sought details about the dates that the Attorney served as Interim Township Attorney, as well as the specific litigations in which, or development-related business for which, he served as either Planning Board or Interim Township Attorney. In this way, the Defendant sought to have the Government more clearly delineate the Attorney’s role with respect to each Mos-berg-related matter in the Township. The motion, further, sought the specific date in 2006 that Mosberg allegedly offered the six-figure payment to the Attorney. That same month, Mosberg filed a motion seeking in camera review of the grand jury proceedings that resulted in the original indictment. The basis for this motion was the same as that underlying the second motion for a Bill of Particulars. See Def. Notice of Mot. to have the Court Conduct In Camera Review at 2.

The Court held oral argument on the motion for a Bill of Particulars, and on the motion for in camera review, on June 1, 2009. At that hearing, the Court orally ordered the Government to identify the litigations in which the Attorney acted as an agent for the Township, the dates of the lawsuits, and the names of any other attorneys that represented the Township in those suits. The Government responded on June 16, 2009, with a table that listed seventeen lawsuits between Mosberg and the Township. See Govt. Ltr. dated June 16, 2009 at 1. For each lawsuit, the table specifies the dates of the litigations and the “other attorneys” retained by the Township. Id. at 3-4.

A letter introducing the table further explained, with respect to certain of the denoted lawsuits:

As to lawsuit Nos. 1-6, 8 and 10-15, [the Attorney] was not counsel of record but was involved on behalf of the Township from in or about 2002 to in or about June 2003 and signed a settlement agreement on March 2, 2005. As to lawsuit No. 16, [the Attorney] was counsel of record on behalf of the Planning Board. As to lawsuit No. 9, [the Attorney] was counsel of record on behalf of the Township. As to lawsuit Nos. 7 and 17, [the Attorney] was counsel of record for both the Township and Planning Board. As to lawsuit Nos. 7, 9, 16 and 17, the period of [the Attorney]’s representation was throughout the suit except that in lawsuit No. 9 [the Attorney]’s representation ended on March 7, 2007. [the Attorney] acted as an agent of the Township with respect to each of the suits in which he was involved.

Id. at 1.

The month following the June oral argument, in July of 2009, Mosberg filed a motion to dismiss the Superceding Indictment. After another round of extensive briefing, the Court held oral argument on this motion on October 14, 2009. As with the prior motion to dismiss, Mosberg argued that the Superceding Indictment failed to adequately allege a quid pro quo bribery, among other challenges to that indictment.

Importantly, while the Government interpreted Counts 5 and 7 of the Superceding Indictment as part of an overall quid pro quo bribery scheme, both Mosberg’s and the Government’s legal arguments treated Counts 5 and 7 as falling under a failure to diselose/conflict of interest theory of honest services fraud. As noted, Counts 5 and 7 of that indictment were rooted in the allegedly fraudulent local government ethics forms mailed by the Attorney, that failed to disclose monies or benefits he received from Mosberg. At that time, prior to the Supreme Court’s decision in Skilling v. United States, — U.S.-, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010), there were two theories by which it was believed that honest services fraud could be alleged: a bribery-based theory or a conflict-of-interest-based theory. Thus, Mosberg’s legal challenges to Counts 5 and 7, at that time, focused on whether Mosberg had knowledge of the Attorney’s mailing of fraudulent disclosure forms- — not on whether such mailings could properly form the basis of an honest services fraud count.

In January of 2010, while Mosberg’s motion to dismiss the Superceding Indictment was still pending, the Government petitioned the Court, with Mosberg’s consent, to adjourn the proceedings pending issuance of the Supreme Court’s Skilling decision. Finding that the parties’ request was reasonable, the Court adjourned all pending proceedings at that time. When the Supreme Court had not issued its decision by May of 2010, the Court administratively terminated Mosberg’s motion to dismiss on May 10, 2010, in order to judiciously manage its docket.

Skilling was ultimately issued on June 24, 2010, and, shortly thereafter, the Court held a conference call on July 29, 2010, with the Government and Mosbebg, to address how the Government intended to proceed. As explained in more detail below, Skilling held that a public official’s failure to disclose a conflict of interest could no longer serve as an independent theory of honest services fraud. See 130 S.Ct. at 2933-34. Only bribery-based theories remained a valid means of indictment under the honest services fraud statute, 18 U.S.C. § 1346. Hence, during the conference call, and after confirming that the Government intended to pursue its prosecution of Mosberg, the Government requested additional time to decide whether it would seek to strike certain allegations and/or counts from the Superceding Indictment or whether it would return to the grand jury to seek a new indictment that took into account the Skilling ruling. Within a short period of time, the Government informed the Court that it would return to the grand jury. Govt. Ltr. dated Aug. 4, 2010. Based on communications with the parties, the Court understands that a new grand jury, different from the one that had returned the Superceding Indictment, had been empaneled by that time.

On October 14, 2010, the Government filed the Second Superceding Indictment. Mosberg then filed the instant motion to dismiss on March 25, 2011, along with another request for in camera review of the grand jury proceedings. After extensive briefing, including a request to file an over-length brief, the Court held oral argument on June 10, 2011. It became apparent at oral argument that supplemental briefing was required to address some of the Court’s questions; therefore, the Court granted Mosberg and the Government additional time to file supplemental letter briefs. Now, at long last, the Court rules on Mosberg’s motion to dismiss.

II. STANDARD OF REVIEW

On a motion to dismiss, a court reviews the indictment to determine whether it:

(1) contains the elements of the offenses intended to be charged, (2) sufficiently apprise[d] the defendant of what he must be prepared to meet, and (3) allows the defendant to show with accuracy to what extent he may plead a former acquittal or conviction in the event of a subsequent prosecution.

United States v. Vitillo, 490 F.3d 314, 321 (3d Cir.2007). An indictment may not merely recite the essential elements of the offense charged, it must allege specific facts that fall within the scope of the relevant criminal statute. Id.; United States v. Kemp, 500 F.3d 257, 280 (3d Cir.2007). All facts alleged in the indictment must be taken as true, and the court is to employ a “common sense construction” thereof. United States v. Hodge, 211 F.3d 74, 76 (3d Cir.2000).

In United States v. Bergrin, 650 F.3d 257 (3d Cir.2011), the Third Circuit recently affirmed the limited scope of the court’s inquiry on a motion to dismiss. The Court of Appeals reiterated that, “[w]hile detailed allegations might well have been required under common-law pleading rules, ... they surely are not contemplated by Rule 7(c)(1).” Id. at 264 (quoting United States v. Resendiz-Ponce, 549 U.S. 102, 110, 127 S.Ct. 782, 166 L.Ed.2d 591 (2007)). The court, further, emphasized that although courts “may look for more than a mere ‘recit[ation] in general terms [of] the essential elements of the offense, ... [a] ruling on a motion to dismiss is not ... a permissible vehicle for addressing the sufficiency of the government’s evidence.” Id. at 264-65 (citations omitted). Indeed, “no greater specificity than the statutory language is required so long as there is sufficient factual orientation to permit the defendant to prepare his defense and to invoke double jeopardy in the event of a subsequent prosecution.” Id. at 264 (quoting United States v. Rankin, 870 F.2d 109, 112 (3d Cir.1989)). According to the Bergrin court, this is a “narrow, limited analysis geared only towards ensuring that legally deficient charges do not go to a jury.” Id. at 268.

Bergrin further clarified language from U.S. v. Panarella, 277 F.3d 678 (3d Cir.2002), that an indictment based on facts “beyond the reach of the relevant criminal statute” fails to state an offense. Bergrin, 650 F.3d at 264-65. The Bergrin court expressly noted that Panarella has been taken out of context by courts to inappropriately imply that a court may “inquir[e] into what the Government will be able to prove at trial” in the context of a motion to dismiss an indictment. Bergrin, 650 F.3d at 271. Hence, Bergrin makes clear that, although an indictment fails to state an offense if the facts alleged fall beyond the scope of the criminal statute “as a matter of statutory interpretation,” id. at 264-65, no deeper inquiry into the veracity or evidentiary value of the indictment’s allegations is permitted.

III. DISCUSSION

Mosberg challenges each count of thé Indictment as insufficiently pled. His primary argument is that the Indictment does not plead a quid pro quo bribery theory of honest services fraud. He further argues that Counts 5 and 7 of the Indictment, which are rooted in the Attorney’s failure to disclose the monies and benefits he received from Mosberg on his local government ethics disclosure forms, constitute an impermissible, back-door attempt by the Government to charge him on the failure to disclose theory of honest services fraud rejected by Skilling. The Government, in contrast, argues that the Indictment adequately charges a quid pro quo bribery theory, and that Counts 5 and 7 are mailings, like any other, that further the bribery scheme. Mosberg makes additional arguments as to the other counts of the Indictment, but I address these heavily-debated challenges first before turning to his remaining arguments.

As an initial matter, and to provide context for my discussion, I first clarify the scope of the Indictment as a whole. The Indictment cites to both the general mail fraud statute, 18 U.S.C. § 1341, and the honest services fraud statute, 18 U.S.C. § 1346. Section 1341 reaches money-and-property based fraud, whereas section 1346 reaches fraud based on the deprivation of a public official’s honest services.

While both statutes are cited in the Indictment, it is clear from the Indictment’s description of the object of the conspiracy that only honest services fraud is charged. As explained by the Third Circuit in Riley, it is the object of the scheme that determines whether a given scheme alleges general mail fraud or honest services fraud. See United States v. Riley, 621 F.3d 312, 327 (3d Cir.2010) (“to distinguish between the fraud of §§ 1341 and [18 U.S.C. § 666], as opposed to that of § 1346, one must look to the object of the deprivation and not the underlying fraudulent act.”). So, allegations that a bribery scheme resulted in financial loss to a township would constitute money and property-based fraud under section 1341. See id. at 327. The Indictment here alleges that “MOSBERG ... devise[d] a scheme and artifice to defraud the Planning Board, the Township and its citizens of the right to the Attorney’s honest services ..., contrary to ... Sections 1341 and 1346.” Counts 2-7, ¶ 2 (emphasis added). The Indictment makes no reference to the deprivation of money or property. Thus, I conclude that the only scheme alleged is that of honest services fraud and not money-or-property mail fraud under section 1341. With the scope of the Indictment clarified, I now turn to the parties’ arguments.

A. The Bribery Theory — Quid Pro Quo Agreement

With respect to Counts 2-7 of the Indictment, which counts charge violations of the honest services fraud statute, 18 U.S.C. § 1341, Mosberg contends that the Indictment fails to allege a “quid pro quo ” bribery scheme consistent with Skilling and with pre-Skilling case law. The Indictment alleges that Mosberg “knowingly and willfully did devise and intend to devise a scheme and artifice to defraud the Planning Board, the Township and its citizens of the right to the Attorney’s honest services .... ” Indictment, Counts 2-7, ¶ 2-3. As for the bribery allegations, the Indictment states that Mosberg “g[a]ve the Attorney ... a stream of concealed bribes ., often in the form of favorable real estate transactions, in exchange for the Attorney exercising ... official authority ...to assist MOSBERG ....” Indictment, Counts 2-7, ¶3 (emphasis added). The Indictment, further, alleges that there was an express agreement in 1998, with respect to Mazdabrook, and a general bribe in 2006.

Relying primarily on U.S. v. Kemp, 500 F.3d 257 (3d Cir.2007), Mosberg argues that the Government must allege an explicit or implicit agreement, ie., that Mosberg and the Attorney agreed that the former would provide real estate deals to the latter’s children in exchange for favorable treatment. In Mosberg’s words, “there [must] be a two-way agreement involving a promise or commitment from the public official to perform official acts in exchange for a promise or commitment that the official will receive a thing of value.” Def. Mov. Br. at 12.

As Mosberg correctly argues, the Kemp Court held that “the quid pro quo requirement is satisfied so long as the evidence shows a course of conduct of favors and gifts flowing to a public official in exchange for a pattern of official actions favorable to the donor.” 500 F.3d at 282. Applying that rule of law to the instant Indictment, Mosberg finds it deficient, arguing that the Indictment alleges only a “quid” and “quo” but no “pro.” Def. Mov. Br. at 14. Specifically, Mosberg argues that the Indictment merely states that he gave favorable real estate deals to the Attorney’s children (the quid) and that the Attorney provided favorable treatment to him (the quo). Nowhere in the Indictment, Mosberg argues, is the allegation that Mosberg and the Attorney agreed, implicitly or explicitly, to benefit each other in this manner. Without an allegation of this sort of agreement, Mosberg contends, the Indictment is insufficient as a matter of law.

Contrary to Mosberg’s assertion, Kemp does not support his argument. For one, the indictment language approved by the Kemp court mirrors that found in the instant Indictment. In ruling that the indictment sufficiently alleged a bribery theory, the Kemp Court quoted the following language from that indictment:

The indictment refers to “the benefits that HOLCK and UMBRELL extended to Kemp with the intent to influence KEMP’s official actions,” and charges that “defendants GLENN K. HOLCK and STEPHEN M. UMBRELL, on behalf of their employer, Commerce Bank, provided benefits to Kemp in the form of otherwise unavailable loans in exchange for favorable decisions by KEMP as Treasurer of Philadelphia.”

Id. at 280-81. According to Kem/p, “[t]hese allegations were sufficient to charge Hoick and Umbrell with honest services fraud under a bribery theory----” The only difference between the Kemp indictment language and the Indictment here is that there is no express allegation that Mosberg had the “intent to influence” Montefusco. Indeed, Mosberg concedes that the 2006 allegation, on its own, sufficiently alleges a quid pro quo arrangement, which allegation does not include the “intent to influence” language. See Indictment, Count 1, ¶ lOd (“MOSBERG offered the Attorney a ‘six-figure’ bribe payment in exchange for the Attorney’s official assistance ....”) (emphasis added).

In addition, the Third Circuit sanctioned the “in exchange for” language as evincing an “intent to influence” in its recent decision in United States v. Bryant, 655 F.3d 232 (3d Cir.2011). In Bryant, the Third Circuit explained:

The Supreme Court has explained that, as “[b]ribery requires intent ‘to influence’ an official act or ‘to be influenced’ in an official act ..., there must be a quid pro quo — a specific intent to give or receive something of value in exchange for an official act.”

655 F.3d 232 at 240-41 (emphasis added) (quoting United States v. Sun-Diamond Growers, 526 U.S. 398, 404-05, 119 S.Ct. 1402, 143 L.Ed.2d 576 (1999) (emphasis in original)). See also Beldini, 443 Fed.Appx. at 711-12, 2011 WL 3890964 at *2 (using “in exchange for” to describe quid pro quo bribery allegations required under section 666). As I explained in my lower court decision in Bryant, “the Indictment’s allegation of an ‘exchange’ necessarily signifies that [the public official] accepted the bribe ... with the intent to be influenced in the official actions listed in the Indictment.” 556 F.Supp.2d at 390-91 (citing Sun-Diamond, 526 U.S. at 404-05, 119 S.Ct. 1402). Cf. U.S. v. Bahel, 662 F.3d 610, 634-36, 2011 WL 5067095 at *19 (2d Cir.2011) (holding that “in return for” language in jury instructions sufficiently communicates the quid pro quo element).

Furthermore, the Indictment here satisfies the motion to dismiss standard reaffirmed by the Third Circuit in Bergrin. As noted, on a motion to dismiss, the court’s analysis must center on whether the indictment (1) contains the elements of the offenses charged, (2) sufficiently apprised the defendant of what he must defend against, and (3) “allows the defendant to show with accuracy to what extent he may plead a former acquittal or conviction in the event of a subsequent prosecution.” Id.

The Indictment alleges the elements of honest services fraud, and apprises Mosberg of the sort of bribery scheme that he must defend against — favorable real estate deals in exchange for expediting or favorably resolving Planning Board matters and Township litigation. In this way, the Indictment also gives Mosberg sufficient factual orientation to defend against any attempt by the Government to subsequently indict him for the same crime. The Court understands that Mos-berg would prefer more detailed factual allegations, however, the Government is not obligated to provide those details at this juncture. If the Government is unable to support its theory through facts adduced at trial, then the sufficiency of the Government’s proofs may be considered on the basis of that record. Therefore, with similar language — in exchange for — being approved by Kemp, and Bryant, and in light of Bergrin’s admonition that detailed allegations are not contemplated by Rule 7(c)(1), 650 F.3d. at 264, I conclude that the Indictment sufficiently alleges a quid pro quo bribery.

In a related argument, Mosberg appears to rely on U.S. v. Inzunza, 638 F.3d 1006 (9th Cir.2011), for the proposition that an express agreement is required, thereby suggesting that the Indictment is deficient for failing to allege that Mosberg and Montefusco entered into an explicit bribery agreement. However, in his reply, Mosberg clarifies that Inzunza is cited solely for the proposition that an indictment “cannot rely on suspicion alone to establish a link between the alleged benefits conferred to Montefusco and the alleged favorable official treatment furnished by Montefusco.” Def. Reply at 6 n. 3. As an initial matter, Inzunza involved a sufficiency of the evidence challenge. Moreover, the Inzunza court’s full comment was “[suspicion alone will not support criminal liability; on this record, a rational juror would entertain reasonable doubts that preclude a finding of guilt on the counts in question.” Id. (emphasis added). Needless to say, this is not the standard applicable on a motion to dismiss.

The Third Circuit’s recent affirmance of Bryant, further supports my conclusion that a quid pro quo arrangement has been alleged, and that a bribery agreement may be implicit as opposed to explicit in nature. In Bryant, former New Jersey state senator Wayne Bryant was charged with entering into a bribery scheme with R. Michael Gallagher, the former Dean of the School of Osteopathic Medicine (“SOM”) of the University of Medicine and Dentistry of New Jersey (“UMDNJ”). The indictment in that case, as concisely explained by the Bryant court, “alleged [a] quid pro quo arrangement in which Gallagher gave Bryant a ‘low-show’ job at SOM (meaning he provided only minimal or nominal services) as a ‘Program Support Coordinator,’ in which position he received an annual salary of $35,000 (and a $5,000 bonus), in exchange for Bryant’s efforts as Chairman of the Senate Appropriations Committee to funnel State funding to SOM.” Id. at 237. Both Bryant and Gallagher were convicted for their roles in the bribery scheme.

On appeal, the Third Circuit approved the following lower court jury instruction that acknowledged implicit quid pro quo agreements. The jury instruction provided:

The evidence of a quid pro quo can be implicit, that is, a conviction can occur if the Government shows that [the defendant] accepted payments or other consideration with the implied understanding that he would perform or not perform an act in his official capacity.

Id. at 241.

Moreover, the Third Circuit rejected Bryant’s and Gallagher’s argument that the Government failed to prove the existence of a quid pro quo agreement. In rejecting that argument, the court looked to specific facts adduced at trial from which the jury could have concluded that an implicit agreement existed. In light of these facts, the Third Circuit held that it was within the jury’s province to conclude that an implicit quid pro quo agreement existed.

Specifically, the Circuit reasoned that “based on the timing of Bryant’s official acts, a jury could infer that Bryant intended to accept a ‘stream of benefits’ in the form of a salary and benefits from SOM in exchange for his official acts over the course of his nearly three-year employment there.” Id. Relatedly, and with respect to Gallagher in particular, the court held that his intent to influence was proved through circumstantial evidence. Id. at 242-44.

While Bryant involved a sufficiency of the evidence challenge, as opposed to a motion to dismiss, I find its reasoning instructive here. Bryant illustrates the type of facts from which a jury may ultimately determine guilt. This ruling, combined with my analysis of the Indictment language, make clear that the Indictment here sufficiently alleges a quid pro quo arrangement, and that an explicit agreement need not be expressly alleged in the Indictment.

Mosberg further argues that the time span between the originating date of the conspiracy (1997) and the first benefit (2002) is too vast to support the inference that an agreement was implicitly reached. In addition to this argument, he takes further issue with the allegation that the Attorney took official action before the alleged favorable real estate deal-payments from Mosberg began. In short, Mosberg argues that the benefits must be provided in “close proximity” to the official action in order for an agreement to be inferred. Def. Mov. Br. at 17.

Mosberg is correct that many eases inferring a quid pro quo agreement involve less than five years between the origin of the scheme and the first bribe payment. For example, Mosberg points to language in U.S. v. Mariano, 316 Fed.Appx. 99 (3d Cir.2008), that the defendant gave a public official “three separate payments, each of which occurred in close proximity to [the official] acting on behalf of [the defendant].” Id. at 102. Bryant is another example where there was a short time frame involved — Bryant attempted to exercise official action in favor of the private party in that case only six days after Bryant was granted a fabricated employment position by that party. Bryant, 655 F.3d at 241. As noted, the Third Circuit concluded that the jury in that case could have inferred an implicit quid pro quo arrangement from the close proximity of time between Bryant’s official acts and his appointment to the fabricated position. From that close proximity, the Court concluded, “a jury could infer that Bryant intended to accept a ‘stream of benefits’ in the form of a salary and benefits from SOM in exchange for his official acts over the course of his nearly three-year employment there.” Id. at 242.

Simply because there are cases in which a shorter time frame was alleged or proven, however, does not mean that close proximity is required as a matter of law. Mosberg has not pointed to any language in these cases, or others, that create a bright-line rule imposing a temporal limit on implicit quid pro quo agreement allegations.

In this connection, I find the Third Circuit’s decision in Bergrin instructive. Bergrin involved a criminal Racketeer Influenced and Corrupt Organizations Act (RICO) charge. One of the elements of a RICO charge is that the members of a RICO scheme engaged in a “pattern” of predicate acts. Bergrin, 650 F.3d. at 267. The government’s indictment was dismissed by the district court because, in its view, there must be similar methods employed, or some temporal proximity linking, the predicate acts in order for a pattern to exist. Id.

The Third Circuit expressed disapproval of the district court’s imposition of a temporal proximity requirement where there was no language in the RICO statute or decisional law to support that limitation. The Third Circuit reasoned:

In addition to making impermissible factual findings, the District Court also penalized the Government for failing to allege facts that are unrelated to any required element of a RICO offense. For example, the Court suggested that, to constitute a “pattern,” the predicate acts must be similar in ways not actually required by the statute or judicial precedent (e.g., that there must be similar methods , employed or some temporal proximity linking the predicate acts) ... These factual averments are not re1quired to prove a RICO case.

Bergrin, 650 F.3d. at 273 (emphasis added).

Likewise, here, there is no language in the honest services fraud statute or judicial precedent that requires bribes or benefits tó be paid near the beginning of the scheme to defraud. Nor is there binding precedent stating that the benefits must be temporally linked to the payment or, as Mosberg further argues, that the bribe payment must precede the official action. Therefore, while Mosberg’s argument that the payments and official actions should be made in close proximity has intuitive force, the Court finds no basis for imposing such a pleading requirement as a matter of law, as contradistinguished from whether shch evidence at trial could support an inference of an implicit quid pro quo arrangement. Indeed, this was the cáse in Bryant, where the Third Circuit addressed proximity in the context of a post-trial sufficiency of the evidence challenge.

Moreover, whether a quid pro quo agreement.is properly alleged is a case by case determination that depends upon the totality of the facts asserted — not just on whether a close proximity exists. This approach is consistent with the standard on a motion to dismiss; “no greater specificity than the statutory language is required so long as there is sufficient factual orientation to permit the defendant to prepare his defense and to invoke double jeopardy in the event of a subsequent prosecution.” Bergrin, 650 F.3d at 264 (quoting Rankin, 870 F.2d at 112). Viewing the Indictment in this manner, then, I turn to the pertinent allegations.

The Indictment alleges that the Attorney endorsed developer agreements that benefitted Mosberg, and undermined the Township’s legal position, from 1997 through 2005, and that Mosberg provided the favorable real estate deals from 2002 through 2006. There is a significant overlap between these two times frames, which overlap suggests the existence of an ongoing bribery relationship. Moreover, the Indictment alleges that Mosberg “told the Attorney, in substance and in part, that if the Attorney helped MOSBERG related to the development approval for Mazdabrook, MOSBERG would help the Attorney.” Indictment, Count 1, ¶ 10c. While Mosberg could have theoretically provided this “help” shortly after the first favorable official action was taken, that Mosberg provided the initial real estate deal four years later, in 2002, does not necessarily undercut the existence of the bribery scheme. Should this matter reach trial, a jury could ultimately conclude that such a complicated and involved, real-estate based scheme took more time to implement than the typical cash bribe payment scheme.

Additionally, that both the Attorney and Mosberg allegedly concealed the real estate transactions further suggests the existence of an implicit quid pro quo agreement. The Indictment alleges that Mosberg told the Attorney, in early 2003, that “no one should know about [one of the favorable real estate transactions],” and that he “encouraged the Attorney to conceal material information, by not disclosing their arrangement.” Id., Count 1, ¶ 6c. The Indictment further alleges that the Attorney failed to disclose his receipt of the $36,000 in proceeds from one of the sales, and other benefits his children received, on his 2004 and 2006 local government ethics disclosure forms.

Additionally, in light of the several allegedly favorable actions that the Attorney provided from 2002 through 2006, the Indictment’s allegation that Mosberg offered a six-figure bribe payment in 2006 for the Attorney’s assistance in resolving the Parkside Gardens litigation, further suggests that an implicit agreement had been reached. Id. Taken together, these allegations point to an implicit quid pro quo agreement between Mosberg and the Attorney. The lack of close proximity between the first official action and the real estate transaction-payments does not render the allegations regarding a quid pro quo arrangement insufficient to support such a claim at the motion to dismiss stage.

Finally, Mosberg points to documents outside the pleadings to call into question the bases for of the Government’s allegations. Such references are impermissible on a motion to dismiss where the allegations must be taken as true. Mos-berg cites U.S. v. Boren, 278 F.3d 911 (9th Cir.2002), for the proposition that the Court may consider allegations outside the four corners of the indictment. See Def. Reply at 10 n. 7. Boren, however, explicitly acknowledges that “[i]n ruling on a pretrial motion to dismiss an indictment for failure to state an offense, the district court is bound by the four corners of the indictment,” and thereafter states that it is only when a motion to dismiss is “premised on other grounds, such as that the indictment violates the defendant’s right against double jeopardy, [that] a court may take evidence and make factual determinations.” Id. at 914.

Accordingly, the Court concludes that the Indictment sufficiently alleges an implicit quid pro quo agreement. Mosberg’s motion to dismiss Counts 2-7 for failure to allege a quid pro quo arrangement is denied.

B. Corrupt Intent

In an argument similar to his quid pro quo argument, Mosberg contends that the Indictment fails to sufficiently allege that he had the corrupt intent to influence or reward the Attorney. He cites United States v. McNeive, 536 F.2d 1245 (8th Cir.1976), United States v. Rabbitt, 583 F.2d 1014 (8th Cir.1978), and United States v. Czubinski, 106 F.3d 1069, 1076 (1st Cir.1997), in support of his contention.

Mosberg cites McNeive for the proposition that bribery monies must actually affect the performance of the official’s duties. Perhaps recognizing that this broad proposition is incorrect, Mosberg clarifies his argument in his reply brief by citing U.S. v. Ozcelik, 527 F.3d 88 (3d Cir.2008). Ozcelik holds that “while it is not necessary for the official to actually change his performance,” in order to “sustain a bribery conviction [it is necessary] that the official have the corrupt intent that, in exchange for the bribe, the official would be influenced in the performance of an act....” Def. Reply at 19 n. 14.

However, as Mosberg acknowledges, the inquiry is whether the official intended to allow himself to be influenced — not that he was actually influenced in the performance of his duty. See Ozcelik, 527 F.3d at 95 (“[A]cceptance of the bribe is the violation of the statute, not performance of the illegal promise”). Indeed, as one of Mosberg’s other citations in his reply brief notes, McNeive is better understood as holding that where the scheme does not contemplate that the official will ever change his performance, there is no corrupt intent shown. See Def. Reply at 19 (citing U.S. v. Brumley, 116 F.3d 728, 734 (5th Cir.1997)); Brumley, 116 F.3d at ,734 (“If the employee renders all the services his position calls for, and if these and all other services rendered by him are just the services which would be rendered by a totally faithful employee, and if the scheme does not contemplate otherwise, there has been no deprivation of honest services.”) (emphasis added). Moreoyer, McNeive and Ozcelik involved public official defendants and, accordingly, focused on the official’s intent.

The central question is whether Mosberg intended for the Attorney to exercise discretion, even if Mosberg was incorrect in his assumption that the Attorney could, in fact, exercise that discretion. The Indictment alleges that Mosberg sought the Attorney’s assistance for “development-related business and litigation involving the Township ... without the public’s knowledge.” Indictment, Count 1, ¶ 4 (emphasis added). The “without the public’s knowledge” language is critical because it suggests that the arrangement between Mosberg and the Attorney was intended to be secret. Clandestine arrangements are clandestine for a reason, presumably a corrupt one. In addition, the Indictment alleges that the bribe payments and benefits were “corrupt” Id., Counts 2-7, ¶ 3. Read together, these allegations sufficiently assert that Mosberg had the corrupt intent to influence Montefusco’s actions as a public official.

Mosberg’s citations to Rabbitt and Czubinski do not alter my conclusion. The defendant-public officials in those cases did not possess any discretionary decision-making powers that could have potentially been affected by their receipt of bribes. See Rabbitt, 583 F.2d at 1025 (noting that the defendant-legislator “did not, in his official capacity, control the awarding of state contracts to architects.”); Czubinski, 106 F.3d at 1077 (“[the defendant’s] official duty was to respond to informational requests from taxpayers regarding their returns, a relatively straightforward task that simply does not raise the specter of secretive, self-interested action, as does a discretionary, decision-making role.”) (emphasis added). Here, unlike both Czubinski, and Rabbitt, the Indictment alleges that the Attorney exercised his discretionary duties to assist Mosberg by, for example, disclosing secret information that created development opportunities for Mosberg (as with Mazdabrook) and assisted Mosberg is negotiating more favorable litigation settlements.

To the extent Rabbitt could be read to support the proposition that an official — a legislator, in that-case — must possess final decisionmaking authority in order to possess corrupt intent, at least one court has questioned this reasoning, noting that “[t]he fact that the defendant did not control the award of contracts should not be decisive if his position as a state legislator gives his recommendations a weight independent of their intrinsic merit.” United States v. Holzer, 816 F.2d 304, 309 (7th Cir.1987) vacated on other grounds by McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987) (emphasis added). Indeed, as the First Circuit noted in United States v. Potter, 463 F.3d 9 (1st Cir.2006), “[i]t is common knowledge that powerful legislative leaders are not dependent on their own votes to make things happen. The honest services that a legislator owes to citizens fairly include his informal and behind-the-scenes influence....” Id. at 18. By analogy here, even without allegations that the Attorney had actual authority to direct the Township’s actions, the Indictment sufficiently alleges that Mosberg intended for the Attorney to tailor his recommendations to the Township, and to exercise whatever element of discretion he possessed to influence the Township, in Mosberg’s favor.

In other words, the Indictment sufficiently alleges corrupt intent because the alleged scheme contemplated that, as a result of the benefits Mosberg gave or would give the Attorney, the Attorney would be influenced in his dealings with, or advice to, the Township whenever an opportunity to benefit Mosberg arose. As I explained in my Bryant decision, “[w]hen an official makes a quid pro quo bribery agreement, explicitly or implicitly, he ceases making decisions according to his best judgment ... on behalf of all the citizens he serves, and allows the payor to place a thumb on the scale of his decision-making process.” 556 F.Supp.2d at 392. This is because “in addition to whatever considerations he would have brought to bear regarding the merits of such official acts, he also has a corrupt consideration, the bribe.” Id. at 392-93.

For this reason, “even if the official actions he ultimately takes in favor of the payor are unchanged, the [public official’s] decision-making process is still influenced ....” Id. Indeed,

an allegation that a [public official] “exchanged” official actions for a bribe necessarily means that the bribe had some influence on that discretion — even if, as things turned out, the official’s actions were the same as they would have been absent the bribe. This is because the “exchange” removes discretion from the legislator — which he is obligated to exercise in the best interests of the public — • and instead locks him into a position favoring one constituent, as dictated by the quid pro quo arrangement.

Id. (internal citation omitted). Similar to the influence the defendant-legislator in Bryant exercised on behalf of the private payor, the Indictment here alleges that Mosberg’s and the Attorney’s scheme contemplated that the Attorney would skew his advice to the Township to favor Mos-berg.

Accordingly, I conclude that the Indictment’s allegations are sufficient to allege corrupt intent and, therefore, deny Defendant’s motion to dismiss Counts 2-7 on this basis.

C. Ethics Disclosure Forms — Counts 5 and 7

Defendant challenges Counts 5 and 7, which are based on the filing of Montefusco’s local government ethics disclosure forms, as counts of honest services fraud. As noted above, both the initial and Superseding Indictment charged Mosberg with these counts. At that time, it was believed that such counts could proceed under a duty to disclose a conflict-of-interest theory of honest services fraud.

Skilling barred the government from proceeding under the conflict-of-interest theory of honest services fraud. Following Skilling, the Government here returned to the grand jury, and the grand jury returned the instant Indictment, the Second Superceding Indictment, which (again) contains counts regarding the mailings related to the local government ethics disclosure forms.

In light of these counts’ inclusion in the earlier, pre-Skilling indictments as bases for a conflict of interest theory of honest services fraud, Mosberg is skeptical of the Government’s recasting of these same counts as now being in furtherance of a bribery theory, and whether the grand jury was adequately informed of the governing law. I separately address below whether I will conduct an in camera review of the grand jury proceedings to confirm whether the grand jury was properly instructed in connection with its return of the current Indictment on those counts.

In this section of the opinion, however, I address whether the mailing of local government ethics forms may serve as the basis for an honest services fraud count under a bribery theory in the post-Skilling context. I, further, address Mosberg’s argument that the Indictment fails to allege knowledge, and that the forms could not have furthered the bribery scheme. For the reasons that follow, I reject each of Mosberg’s arguments.

1. The Skilling Effect

As noted, Mosberg challenges Counts 5 and 7 of the Indictment as an impermissible, “back-door” attempt by the Government to charge Mosberg with a failure to disclose (or conflict-of-interest) theory of honest services fraud. In response, the Government points to cases holding that evidence of concealment may support an honest services mail fraud count, even in the Tpost-Skilling context. Focusing on whether the local government ethics forms may be admitted as evidence, however, is not the proper inquiry. That local government ethics forms may be admitted as evidence of a bribery scheme does not mean that the forms themselves can be the basis of a substantive honest services fraud count. To that question, I now turn.

The Supreme Court explained almost one hundred years ago in Badders v. United States, 240 U.S. 391, 36 S.Ct. 367, 60 L.Ed. 706 (1916), that so long as each act “ha[d] been found to have been done for the purpose of executing the scheme, .... there is no doubt that the law may make each putting of a letter into the postoffice a separate offence.” Id. at 394, 36 S.Ct. 367. Moreover, the Supreme Court has held that a mailing designed to conceal a scheme to defraud is in furtherance of that scheme and, therefore, that such a mailing may be charged as a distinct mail fraud count. In United States v. Lane, 474 U.S. 438, 451-52, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986), a unanimous Supreme Court explained that mailings help execute a scheme to defraud if they are “designed to lull the victims into a false sense of security, postpone their ultimate complaint to the authorities, and therefore make the apprehension of the defendants less likely than if no mailings had taken place.” Id. at 451-52, 106 S.Ct. 725. See also United States v. Coyle, 63 F.3d 1239 (3d Cir.1995) (quoting United States v. Otto, 742 F.2d 104, 108 (3d Cir.1984)) (quoting same). According to the Third Circuit, it is a “self-evident proposition that the aim of virtually all criminal actors, including those who commit mail fraud, is not only to accomplish their criminal goals, but also to escape detection and liability for these misdeeds.” U.S. v. Hoffman, 229 Fed.Appx. 157,158 (3d Cir.2007).

In a case involving strikingly similar facts to those alleged here, the court in United States v. Kerik, 615 F.Supp.2d 256 (S.D.N.Y.2009) denied a defendant-public official’s motion to dismiss honest services mail fraud charges against him. The indictment in that case alleged that the defendant had accepted bribery payments from a private company in exchange for his assistance in helping that company obtain a New York City sanitation permit. The challenged honest services fraud count was based on a mailing of a form by the company. The form included a question asking whether the company had “given, or offered to give, money or any other benefit to a public servant with the intent to influence that public servant with respect to any of his or her official acts, duties or decisions” within the last 10 years. Id. at 269. The company checked “no” in response to that question, and submitted the form to the Department of Sanitation (“DOS”) in support of its permit application. Id.

The Kerik court held that the fraudulent form could form the basis for an honest services mail fraud charge against the public official, Kerik. The court reasoned:

It does not strain credulity — and a reasonable juror could find — that the letter constitutes a part of the scheme to deprive New York citizens of Kerik’s honest sendees and was a conscious attempt to prevent the DOS from uncov