## Facts

- Joseph L. Bruno, former Majority Leader of the New York State Senate, was charged with honest-services mail fraud under 18 U.S.C. §§ 1341 and 1346.
- The prosecution alleged Bruno received substantial private payments from individuals and entities seeking to do business with New York State while concealing those financial relationships and resulting conflicts of interest.
- The theory presented treated nondisclosure of conflicts and undisclosed compensated relationships as depriving the public of Bruno’s honest services.
- Bruno moved before trial to dismiss the indictment, arguing § 1346 was unconstitutionally vague as applied to a nondisclosure-based theory; the district court denied the motion.
- After trial, the jury convicted Bruno on two honest-services mail-fraud counts (Counts 4 and 8), acquitted him on five counts, and deadlocked on one count (Count 3), resulting in a mistrial on that count.
- The district court sentenced Bruno principally to two years’ imprisonment.
- While Bruno’s appeal was pending, the Supreme Court in *Skilling v. United States* limited § 1346 to schemes involving bribes or kickbacks, excluding mere failures to disclose conflicts of interest.

## Issues

1. Whether, after *Skilling*, convictions based on an honest-services theory of nondisclosure of conflicts of interest could stand.
2. Whether the Double Jeopardy Clause barred retrial on the vacated counts (Counts 4 and 8) if the evidence at the first trial could support conviction under a bribe-or-kickback theory.
3. Whether the Double Jeopardy Clause barred retrial on the count that ended in a mistrial due to a hung jury (Count 3).

## Decision

- The court vacated Bruno’s convictions on Counts 4 and 8 because the jury had been permitted to convict on a nondisclosure/conflict-of-interest theory that is not criminal under § 1346 as construed by *Skilling*.
- The court held double jeopardy did not bar retrial on Counts 4 and 8 because the trial record contained sufficient evidence from which a properly instructed jury could find an honest-services scheme involving bribes or kickbacks.
- The court held double jeopardy did not bar retrial on Count 3 because a mistrial based on jury deadlock permits retrial regardless of the evidence’s sufficiency.
- The judgment was vacated and the case remanded for further proceedings consistent with the opinion.

## Legal Principles

- After *Skilling*, 18 U.S.C. § 1346 criminalizes only honest-services fraud schemes carried out through bribes or kickbacks; nondisclosure of conflicts of interest alone is not enough.
- When convictions are set aside due to an intervening narrowing construction of a criminal statute, retrial is barred only if the evidence at the first trial was insufficient under the correct, narrowed legal standard.
- If the evidence could support conviction under the correct standard, reversal for an invalid theory is treated like trial error and retrial is constitutionally permitted.
- Retrial is not barred by double jeopardy following a mistrial declared because the jury could not reach a verdict.

## Conclusion

The Second Circuit vacated Bruno’s honest-services mail-fraud convictions because the case was tried on a now-invalid nondisclosure theory, but permitted retrial because the evidence could sustain a bribe-or-kickback theory under *Skilling*, and because a hung jury on another count does not trigger double-jeopardy protection against retrial.


United States v. Bruno, 661 F.3d 733 (2d Cir. 2011)