ARGUED: November 1, 2016
Appeal from the United States District Court for the District
of New Jersey (D.C. Criminal No. 2-13-cr-00592-001) District
Judge: Honorable Esther Salas
Goldberger, Esq. [ARGUED] Counsel for Appellant.
E. Coyne, Esq. Bruce P. Keller, Esq. [ARGUED] Counsel for
Before: HARDIMAN and SCIRICA, Circuit Judges, and ROSENTHAL,
SCIRICA, CIRCUIT JUDGE.
A. Ferriero appeals his judgments of conviction, forfeiture,
and sentence based on violations of the Travel Act, 18 U.S.C.
§ 1952, the Racketeer Influenced and Corrupt
Organizations Act ("RICO"), id. §
1962(c), and the federal wire fraud statute, id.
§ 1343. We will affirm.
Ferriero served as chairman of the Bergen County Democratic
Organization (BCDO) from 1998 until he resigned in January
2009. As party chair, Ferriero wielded significant power in
the process of nominating Democrats in local elections and in
the process of choosing which issues and candidates the party
supported. In his role, he raised money for the Democratic
Party, helped elect Democratic candidates to local office,
and managed campaigns in important local elections.
Significantly for this case, one aspect of party business was
connecting and recommending vendors to Democrats elected or
appointed to local office in Bergen County.
convictions stem from payments he took from a particular
vendor, John Carrino, in exchange for recommending to certain
officials that their towns hire Carrino's firm. Carrino
owned C3 Holdings, LLC (hereinafter, "C3")-short
for Citizen Communications Center-a New Jersey corporation
that provided emergency-notification systems for local
governments. Carrino also owned Braveside Capital, LLC,
a New Jersey corporation he described as the "sales
arm" of C3.
Carrino sought municipal contracts for C3, Ferriero was
uniquely situated to influence Democratic municipal officials
by virtue of his position as their county party chair. The
two struck an agreement. Ferriero would recommend C3 to local
governments in exchange for a 25- to 33-percent commission on
contracts for the towns that ultimately hired the company.
They memorialized the agreement in a contract between
Carrino's Braveside Capital and SJC Consulting, a new
company Ferriero had incorporated under the laws of Nevada.
The contract, executed April 22, 2008, describes the
relationship as an "agreement . . . to provide
governmental relations consulting services required in
connection with marketing of a product known as C3 and any
other related products or services."
end, Ferriero had drawn up a list of target Bergen County
municipalities with corresponding names of Democrats in local
office, and over the course of about a year, he "pushed
hard for C3." Relevant to his convictions, he
recommended C3 to local officials for the boroughs of Dumont,
Cliffside Park, and Wood-Ridge, and for Saddle Brook and
made these recommendations at BCDO-sponsored events, at local
political fundraisers, at informal meetings, or simply over
email. For example, Ferriero made inroads for C3 with
Dumont's leadership at a 2007 lunch where he introduced
Carrino to the borough's mayor, Matthew McHale. Ferriero
recommended C3 to the mayor and followed up with an email
asking, "How [are] we doing with C-3"? Mayor McHale
ultimately brought C3 to the borough administrator, who in
turn took the idea to the borough council. The borough
council voted to license C3's software. Neither McHale,
the borough administrator, nor the councilmembers knew
Ferriero would make money as a result.
August 2007, Ferriero introduced Carrino to Teaneck
councilman El-Natan Rudolph, whose name Ferriero had written
next to Teaneck on the list of municipal sales targets.
Rudolph put Carrino in touch with Teaneck's town manager,
Helene Fall, who that very day emailed Carrino about C3's
web services. In December, the Teaneck council unanimously
voted for a resolution, introduced by Rudolph, authorizing
the town to pay up to $24, 000 to hire C3 for the year 2008.
November 2007, Ferriero introduced Carrino to Saddle Brook
Mayor Louis D'Arminio at a BCDO-sponsored gala. Ferriero
recommended C3's products, and D'Arminio and Carrino
exchanged business cards. The town council ultimately voted
to contract with C3 without D'Arminio or the township
council having been aware that Ferriero stood to benefit
financially from the contract.
in 2008, Ferriero called Cliffside Park's borough
attorney Chris Diktas to vouch for C3 after Carrino pitched
the service to town leaders. Councilwoman Dana Spoto
testified that, before the borough council voted on the
matter, Diktas advised her that Ferriero had vouched for C3
and that "Joe wanted it." The Cliffside Park
council voted to contract with C3, resolving to authorize a
$2, 000-per-month contract, though neither Diktas nor
Councilwoman Spoto were aware Ferriero stood to gain
financially from the contract.
Carrino's local contracts moved forward, Ferriero
profited as well. Over the course of 2008, Carrino paid
Ferriero's SJC Consulting at least $11, 875 with checks
that included those four town names in the checks' memo
lines. On a check dated May 16, 2008, the memo line read
"Q1/Q2 SB / Q1 Dumont." A check dated July 27,
2008, had a memo line that read "Q1: Teaneck Q2:
Teaneck, Dumont CP - Q2 (2m)." And the memo line of a
check dated September 18, 2008, read "Q3: Saddlebrook
that same year, Cliffside Park's mayor grew concerned
about Ferriero's role in the town's contract with C3.
He asked the borough's Chief Financial Officer, Frank
Berardo, about the contract's details and directed
Berardo to find out "who the owners of the company
were." On July 9, 2008, Berardo called Carrino to
inquire into the contract and "the owners of th[e]
corporation." Carrino said he would respond by email,
and roughly one hour later, emailed Berardo with a reply:
Per our conversation this morning, please find attached
copies of the State of New Jersey Business Certificate as
well as C3's Standard Software as a Service Licensing
Please call me if you have any questions. My cell is:
By way of this email I am also cc'ing [Borough Attorney
Chris] Diktas for his review.
to the email were copies of the contract and C3's
certification of formation, which listed only Carrino under
"Members/Managers." There was no reference to
Joseph Ferriero. Cliffside Park paid Carrino for services in
June and July with a $4, 000 check dated July 9.
of the localities on Ferriero's list ultimately hired C3.
The Borough of Wood-Ridge declined to contract with C3, but
the borough's mayor Paul Sarlo still felt pressured to do
so. Mayor Sarlo broke the news of Wood-Ridge's decision
to Ferriero and Carrino at a local political fundraiser.
Ferriero and Carrino were upset and the ensuing conversation
"got tense and . . . heated" until a Sarlo staffer
pushed Democratic officials from Bergen County towns to
contract with C3, and four of the localities on his list
eventually did so. He was paid thousands of dollars based on
those four contracts in checks listing out which payments
corresponded to which town. But none of the local Democratic
officials to whom Ferriero recommended C3 were aware he stood
federal grand jury returned a five-count Indictment that
charged Ferriero with violations of RICO, the Travel Act, and
federal mail and wire fraud statutes. Count 1 charged
Ferriero with violating RICO, 18 U.S.C. § 1962(c),
alleging he conducted the Bergen County Democratic
Organization through a pattern of racketeering activity. As
proof of that pattern, the Indictment alleged seven predicate
racketeering acts. Racketeering acts #1 and #2 were based on
allegations of bribery, extortion, and honest services fraud
unrelated to Ferriero's contract with C3. Predicate
racketeering acts #3 through #7 alleged the payments made in
exchange for Ferriero's recommendations to local
Democratic officials in favor of contracting with C3 violated
New Jersey's bribery statute. That provision prohibits
"accept[ing] or agree[ing] to accept . . . [a]ny benefit
as consideration for a decision, opinion, recommendation,
vote or exercise of discretion of a public servant, party
official or voter on any public issue or in any public
election." N.J. Stat. Ann. § 2C:27-2 (emphasis
charged Ferriero with conspiracy to commit mail fraud, 18
U.S.C. § 1341, wire fraud, id. § 1343, and
violations of the Travel Act, id. § 1952. Count
3 charged a substantive Travel Act violation based on an
underlying violation of New Jersey's bribery statute.
Counts 4 and 5 charged violations of mail and wire fraud,
respectively, alleging Carrino and Ferriero defrauded Dumont
(Count 4) and Cliffside Park (Count 5). Count 5's
underlying fraud allegation stemmed from the Carrino email to
Cliffside Park that failed to disclose Ferriero's
financial interest in the borough's contract with C3.
trial, Ferriero moved to dismiss Count 1 (RICO) on the ground
the Indictment failed to allege RICO's so-called
"nexus" requirement, and moved to dismiss Counts
1-3, arguing New Jersey's bribery statute was
unconstitutionally overbroad and vague. Both motions were
jury found Ferriero guilty on Count 1 (RICO), Count 3 (Travel
Act), and Count 5 (wire fraud). As noted, the jury determined
that, for Count 1's seven alleged racketeering acts, the
government did not prove Ferriero committed racketeering acts
#1 and #2, the alleged crimes unrelated to the C3 scheme.
See supra, note 3. But the
jury concluded Ferriero committed racketeering acts #3
through #7-that is, the jury concluded Ferriero committed
bribery by agreeing to recommend C3's services in
exchange for a share of any resulting contracts'
revenues. The jury acquitted Ferriero of Count 2 (conspiracy)
and Count 4 (mail fraud).
had moved for judgment of acquittal on all counts following
the close of the government's case at trial, and he
renewed that motion for Counts 1, 3, and 5, which the court
denied. Ferriero was sentenced to three concurrent 35-month
prison terms and ordered to forfeit the money equivalent of
the proceeds he derived from the racketeering and wire fraud.
mounts three challenges on the sufficiency of the evidence
supporting his convictions for violating RICO and the Travel
asserts the evidence was insufficient to prove New Jersey
bribery as a predicate act for his Travel Act and RICO
Travel Act prohibits using interstate travel, mail, or
facilities with intent to carry out "any unlawful
activity, " 18 U.S.C. § 1952(a)(3), or with intent
to "distribute the proceeds of any unlawful activity,
" id. § 1952(a)(1). The definition of
"unlawful activity, " includes "bribery . . .
in violation of the laws of the State in which
committed." Id. § 1952(b)(2). RICO
proscribes participating in the conduct of an interstate
enterprise's affairs "through a pattern of
racketeering activity, " id. § 1962(c), a
term defined to include acts involving "bribery . . .
which is chargeable under State law and punishable by
imprisonment for more than one year, " id.
Travel Act and RICO convictions both rest on the jury's
determination that, as a party official, he violated New
Jersey's prohibition against "[b]ribery in official
and political matters." N.J. Stat. Ann. § 2C:27-2.
According to that provision, "[a] person is guilty of
bribery if he directly or indirectly offers, confers or
agrees to confer upon another, or solicits, accepts or agrees
to accept . . . [a]ny benefit as consideration for a
decision, opinion, recommendation, vote or ...