“Bridgegate” Wire Fraud Convictions Are Affirmed, While Civil Rights Convictions Are Reversed

United States v. Baroni, 909 F.3d 550 (3d Cir. 2018).  In a unanimous opinion by Judge Scirica today, the Third Circuit upheld the convictions of “Bridgegate” defendants Bill Baroni and Bridget Kelly on charges of conspiracy to obtain by fraud, knowingly convert, or intentionally misapply property of an organization receiving federal benefits, conspiracy to commit wire fraud, and the substantive offenses associated with those conspiracy charges.  But the panel reversed and vacated defendants’ convictions for conspiracy against civil rights and the related substantive offense.  Because some convictions were overturned, the Third Circuit remanded the case for resentencing on the convictions that were upheld.

Most New Jersey citizens know the story of Bridgegate, which arose out of an action by defendants and other public officials to close lanes on the George Washington Bridge that served Fort Lee, in order to punish that municipality’s mayor for declining to endorse Governor Christie for a second term.  The now-infamous message from Kelly stating “Time for some traffic problems in Fort Lee” summed up the scheme.  As Judge Scirica noted, the facts of this case were “not materially in dispute.”

Defendants attacked the sufficiency of the evidence to support the wire fraud convictions.  The standard of review on such a challenge is plenary, and a judgment of acquittal is called for if, viewing the record in a light most favorable to the prosecution, “no rational jury could have found proof of guilt beyond a reasonable doubt.”

Here, Judge Scirica concluded that there was sufficient evidence “to prove Defendants violated the wire fraud statute by depriving the Port Authority [of New York and New Jersey, by whom Baroni was then employed] of, at a minimum, its money in the form of public employee labor.”  That money included, among other things, money paid to Baroni and David Wildstein, another conspirator who had pled guilty, for hours they worked on the Bridgegate scheme, money paid to extra toll collectors whose presence the scheme required, and expenditures for other Port Authority employees to perform unnecessary analysis of the lane closure’s effect on traffic at the bridge.

Defendants also contended that the wire fraud charges were an effort by the government to circumvent the ruling in Skilling v. United States, 561 U.S. 358 (2010), which narrowed the scope of the honest services statute, 18 U.S.C. §1346.  Judge Scirica rejected that argument, agreeing with the District Court that “[t]here is a difference … between intangible rights to honest services not covered by the wire fraud statute, and intangible property rights, which are.”

Defendants advanced a First Amendment argument too, contending that their convictions represented “a criminal penalty for misleading political speech.”  But those arguments, Judge Scirica found, had been waived, because defendants’ two briefs devoted just three sentences to them, and arguments raised “in passing” are deemed waived.

Defendants’ attack on jury charges fared no better.  Judge Scirica carefully analyzed those arguments, applying plenary review, and found them wanting.

The one bright spot for defendants was the panel’s decision that the civil rights charges in the indictment were insufficient as a matter of law because the right that the grand jury identified as having been violated– “the right [of Fort Lee residents] to localized travel on public roadways free from restrictions unrelated to legitimate governmental objectives”– was not “clearly established.”  Though the Third Circuit and three other Circuit Courts of Appeal had recognized such a right “at varying levels of generality,” five other Circuits had not, and the Supreme Court of the United States had never done so either.  Given that split, there was no “robust consensus,” and it was not “beyond debate” that a right to localized travel exists.  Accordingly, the civil rights convictions were vacated.

The foregoing is just a summary of Judge Scirica’s highly detailed and scholarly opinion, which consumes 78 pages.  It is well worth reading in full for a more complete understanding of all the issues.

The District Court had sentenced Baroni to 24 months in prison and Kelly to 18 months.  With the remand for resentencing, those prison terms may or may not change.