Friday, April 18, 2008

Sharpe James or Jesse James?

Ex-Newark Mayor Convicted Of Corruption


The Cool Justice Report
April 18, 2008

EDITOR'S NOTE: This column is available for reprint courtesy of The Cool Justice Report,

Another big politician has fallen to the ways of greed.

Sharpe James served Newark as mayor from 1986 until 2006. In the last years of his administration he also served as a New Jersey state senator.

James was indicted in July 2007 by a federal grand jury with using city-issued credit cards on himself, eight female companions and others during personal trips and exotic vacations.

The indictment also charged James with what is known as "honest services" mail fraud against the citizens of Newark. He was accused of facilitating and approving the cut-rate sale of city-owned land to co-defendant, Tamika Riley, one of his companions. Riley was accused of purchasing a variety of properties for less than $60,000 and selling them later at a profit in excess of $600,000.

James was accused of using the power of his offices to influence the decisions to award the properties to Riley. The land sale allegations were tried separately from the credit card abuse charges.

This week, a New Jersey federal jury convicted James and Riley after more than 30 hours of deliberation. James' attorneys have promised the inevitable appeal. James and Riley face approximately eight years in prison under the federal sentencing guidelines that apply to their cases. However, a judge could sentence them to as much as 20 years on some counts. They are both free on bail and will face sentencing on July 29.

Mail fraud -- use of the mail to aid a scheme or artifice to defraud -- and wire fraud -- use of wire services, internet or television to aid a fraudulent scheme -- are potent weapons in a federal prosecutor's arsenal.

In 2001, when former Bridgeport Mayor Joseph Ganim was indicted, mail fraud carried a maximum term of 5 years imprisonment.

In 2002, Congress, apparently reacting to the numerous indictments alleging such frauds, and the potential abuses they targeted, increased the penalty for mail and wire fraud from five years to a maximum of 20 years. For fraud affecting a financial institution, the penalties increased from 20 years to 30 years.

Proof of mail fraud requires the existence of a scheme or artifice to defraud and the use of the mails in aid of the scheme. Once the scheme is established, each and every mailing in furtherance of the scheme can constitute a separate count. The same applies to the use of wires to aid a fraud. It is commonplace in these indictments to see multiple counts.

Commonly, fraud requires proof that something tangible, such as money or property, was obtained by false or fraudulent pretenses, representations or promises. In the case of politicians, like James and Ganim, the government had charged the theft of honest services under Title 18 United States Code § 1346:

"For the purposes of this chapter, the term "scheme or artifice to defraud" includes a scheme or artifice to deprive another of the intangible right of honest services."

So-called honest services mail and wire fraud have had a difficult legal evolution.

During the '70s and '80s, prosecutors attempted to extend the mail and wire fraud statutes to "schemes to defraud ... designed to deprive individuals, the people, or the government of intangible rights, such as the right to have public officials perform their duties honestly." Prosecutors believed that the electorate is entitled to honest work by its elected officials and that public corruption deprived the citizenry of this intangible right. As first written, the mail and wire fraud statutes did not specifically cover the dishonesty of a politician. As federal prosecutors attempted to enlarge mail and wire fraud to include the deprivation of honest services, the federal appeals courts split on whether the original statues should include honest services.

In 1987, the United States Supreme Court rejected the "honest services" theory in McNally v. United States, 483 U.S. 350, 358 (1987) in overturning the convictions of a public official and another in a patronage scheme.

The court noted that the defendants may have deprived citizens of Kentucky of "certain 'intangible rights,' such as the right to have [Kentucky's] affairs conducted honestly." The court held, nonetheless, that the mail fraud statute was "limited in scope" to the protection of property rights, and was not broad enough to include schemes to defraud citizens of their intangible rights of honest services.

In November 1988, Congress overruled the McNally decision by enacting Title 18 United States Code §1346, to guarantee that mail and wire fraud would once again include the deprivation of citizen's rights to the honest services of their public officials. Scores of indictments and prosecutions followed.

Defense lawyers, however, raised the issue that it is difficult, if not impossible, to define exactly what the "intangible right to honest services" means. In 2002, in a case entitled, United States v. Handakas, the Second Circuit Court of Appeals, in a 2-1 decision, found §1346 unconstitutional as applied to the facts of that case. In deciding that the statute was unconstitutional as applied to that case the court did not strike down the statute. Such a ruling is limited to the facts of the case and is not a general pronouncement that the statute is always being applied in a constitutionally defective manner. What was left open in that case was any firm direction as to how the statute could be constitutionally applied.

That open issue was resolved in a second decision released just five weeks later, United States v. Rybicki. In this "honest services" fraud case, the same appeals court laid out the formula necessary to allow a conviction under the statute: "[i]n short, the statute must give notice of the forbidden conduct and set boundaries to prosecutorial discretion. . .a criminal statute is not impermissibly vague if it provides explicit standards for those who apply it and gives a person of ordinary intelligence a reasonable opportunity to know what conduct is prohibited.

Applying that standard to the Sharpe James case, the theory is that James should have recognized that using the power of his office to swing a deal for his paramour would be apparent to a person of ordinary intelligence.

The message from this verdict and others similar is clear: Political office exists for the common good and not the enrichment of a privileged few.

Bridgeport attorney Richard Meehan Jr. was the lead defense counsel for former Bridgeport Mayor Joseph Ganim's corruption trial. Meehan is certified as a criminal trial specialist by the National Board of Trial Advocacy since 1994 and serves on the organizations Board of Examiners. He is a Charter Fellow, Litigation Counsel of America -- Trial Lawyer Honorary Society. Meehan has also obtained multi-million dollar verdicts and settlements in complex medical and dental malpractice and personal injury litigation. He is a past president of the Greater Bridgeport Bar Association and appears regularly on Court TV. Website,

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