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Judge Throws Out Most of the Indictment Against Kathy Hochul’s Former Top Lieutenant Accused of Bribery

Lt. Gov. Brian Benjamin

Former State Senator Brian Benjamin pumps his fist as he celebrates during a press conference announcing him as Lt. Governor on Aug. 26, 2021 in New York City.

A federal judge in Manhattan threw out three of five charges in an indictment lodged against New York’s former Lt. Gov. Brian Benjamin (D), formerly the second-in-command to Gov. Kathy Hochul (D).

U.S. District Judge J. Paul Oetken found in a 38-page opinion and order that federal prosecutors failed to allege “an explicit quid pro quo” — “an essential element of the bribery and honest services wire fraud charges brought against Benjamin.”

“This Court is not free to disregard the Second Circuit’s considered interpretation of Supreme Court precedent on the theory that it is ‘incorrect,'” the judge noted.

As Law&Crime reported when the indictment dropped in April, Benjamin was accused of scheming in 2019 to obtain campaign contributions from a real estate developer in return for using a state senatorial position to help obtain a $50,000 for a non-profit organization controlled by that developer — namely, Friends of Public School Harlem. Those funds were allegedly intended to benefit Benjamin’s failed campaign for comptroller in 2021.

The developer, Judge Oetken noted, was Gerald Migdol.

Oetken, a Barack Obama appointee, concluded that in order for there to be “criminal liability for bribery in the context of campaign contributions, there must be a quid pro quo that is clear and unambiguous.”

The judge explained what an explicit quid pro quo in such a case would look like:

(1) the link between the official act and the payment or benefit — the pro — must be shown by something more than mere implication, and (2) there must be a contemporaneous mutual understanding that a specific quid and a specific quo are conditioned upon each other.

Oetken, therefore, tossed out charges of conspiracy, bribery, and honest services wire fraud. Though the dismissal of those three charges amounts to a big win for Benjamin, he still faces charges for allegedly falsifying records “relating to contributions to his Senate campaign” and falsifying records related to an “executive appointment questionnaire.”

Here’s why:

Nor does the Court find merit in the Benjamin’s assertion that granting the motion to dismiss as to Counts One, Two, and Three while denying it as to Counts Four and Five would “permit an unprecedented application of the statute beyond the limits of due process.” (Dkt. No. 53 at 39.) Due process is satisfied by adhering to the basic rule from Dawkins. The government alleges two discrete acts involving Benjamin’s knowing provision of false information: (1) when Benjamin “directed” Migdol to fill out the contribution forms in the names of two relatives (Dkt. No. 18 ¶ 19), and (2) when he represented that he had never “directly exercised [his] governmental authority . . . concerning a matter of a donor [he] directly solicited,” even though he had solicited donations from Migdol before procuring the grant. (Id. ¶¶ 20-21.) The Indictment also provides an approximate time and place for both and states that these matters were within the jurisdiction of the Department of Justice. (Id. ¶¶ 42, 44.)

Benjamin’s most forceful point is that he could not have contemplated any federal investigation because his conduct, as alleged, did not constitute bribery. To be sure, this Court’s analysis and conclusions resulting in the dismissal of Counts One through Three buttress the plausibility of an argument that Benjamin was not contemplating a federal bribery investigation. But that is ultimately an issue for the jury. It does not follow from this Court’s conclusion that the Indictment fails to charge a crime that Benjamin could not have contemplated a criminal investigation. Because Counts Four and Five allege the necessary elements of the crime, those counts are legally sufficient.

Prosecutors have argued that Benjamin engaged in a “series of lies and deceptions to cover up his scheme, including by falsifying campaign donor forms, misleading municipal regulators, and providing false information in vetting forms” while he was under consideration for lieutenant governor.

On March 8, 2019, Benjamin allegedly informed Migdol of his plans to run for comptroller and asked him to bundle for him. When Migdol replied that his ability to bundle donations would be limited and draw from the same pool of donors for his non-profit, Benjamin replied: “Let me see what I can do,” according to the indictment.

Before that meeting, prosecutors said, Benjamin did not include Migdol’s non-profit on a list of organizations for which he requested state funds. Benjamin had, however, requested funding for another education-focused organization in Harlem that had requested funds from his office, according to the indictment.

Prosecutors claimed Benjamin’s priorities changed after the March 2019 meeting with Migdol.

Benjamin’s attorneys, on the other hand, previously insisted that their client was being railroaded.

“There was nothing inappropriate about this grant,” they said after the indictment went public, adding that they would aimed to prove Benjamin, in fact, did something “laudable.”

Read the opinion here.

Adam Klasfeld contributed to this report.

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Matt Naham is the Senior A.M. Editor of Law&Crime.