Case 1:21-cr-00706-JPO Document 76 Filed 12/05/22 Page 1 of 38

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA

-v- 21-CR-706 (JPO)

BRIAN BENJAMIN, OPINION AND ORDER

Defendant.

J. PAUL OETKEN, District Judge:

Defendant Brian Benjamin served as lieutenant governor of the State of New York until

he resigned on April 12, 2022, the same day that the government filed a five-count indictment

(the “Indictment”) against him on bribery and related charges. The Indictment alleges that

Benjamin solicited and received campaign contributions from New York real estate developer

Gerald Migdol and, in exchange for those contributions, allocated $50,000 in state funds to

Migdol’s nonprofit organization in Harlem. Benjamin has moved to dismiss the Indictment on

the ground that the government has not met the heightened legal standard for bribery and fraud

charges in the particular context of a public official’s fundraising for a political campaign.

For the reasons that follow, the Court concludes that the Indictment fails to allege an

explicit quid pro quo, which is an essential element of the bribery and honest services wire fraud

charges brought against Benjamin. As a result, Defendant’s motion to dismiss is granted as to

the first three counts. The Indictment is sufficient, however, with respect to the falsification-of-

records charges in the fourth and fifth counts, as to which the motion to dismiss is denied.

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I. Background 1

Defendant Brian Benjamin was elected to the New York State Senate in May 2017,

representing District 30. (Dkt. No. 18 ¶ 3.) By early 2019, Benjamin set his sights on a different

office: New York City Comptroller. (Id. ¶ 6.) In September of that year, Benjamin filed a

certification with the New York City Campaign Finance Board (“CFB”) declaring his intent to

run for Comptroller and to begin raising money in connection with his Comptroller campaign.

(Id.) Benjamin also indicated his intent to participate in the CFB’s matching funds program,

which allowed candidates to obtain up to $8 in public funds for every $1 of eligible campaign

contributions, up to a particular amount. (Id.) Obtaining small-dollar campaign contributions

that were eligible for these matching funds would, according to the government, become a major

point of focus for Benjamin during the Comptroller campaign. (Id.)

A. Meeting with Migdol

Benjamin turned to Gerald Migdol, a real estate developer and District 30 constituent, as

a source of those contributions. 2 On March 8, 2019, the two met at Migdol’s home. (Id. ¶ 9.)

Benjamin told Migdol that he intended to run for Comptroller and that he “wanted [Migdol] to

procure numerous small contributions for his Comptroller Campaign.” (Id.) Migdol demurred,

explaining that he did not have experience bundling contributions in that manner and that his

fundraising efforts were focused on his own community non-profit, referenced in the Indictment

as Organization-1. (Id.) Further, Migdol stated that he had a “limited” ability to procure

1
On a motion to dismiss, the Court reads the indictment in its entirety, United States v.
Hernandez, 980 F.2d 868, 871 (2d Cir. 1992), and assumes as true all factual allegations therein.
United States v. Goldberg, 756 F.2d 949, 950 (2d Cir. 1985).
2
Migdol pleaded guilty to fraud, bribery, and other charges in this case on April 11,
2022. (See Dkt. Nos. 36, 39, 40.) The transcript of Migdol’s plea allocution and the order
accepting his guilty plea were unsealed on May 9, 2022. (See Dkt. No. 35.)

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contributions for Benjamin’s campaign because any potential campaign donors were likely to be

the same donors whom Migdol had solicited, and planned to solicit again, for donations to

Organization-1. (Id.)

In response, Benjamin stated, “Let me see what I can do.” (Id.)

B. Requesting the State Grant

Through his position as state senator, Benjamin had the authority to request discretionary

funding for organizations within his district. (Id. ¶ 10.) In February 2019, Benjamin had

submitted an official request to the Senate Majority Leader listing the organizations for which he

was requesting funding, which did not include Organization-1. (Id.) An entity for which

Benjamin did request funding, Organization-2, was not awarded funding in the final budget

allocation. (Id. ¶¶ 11-12.)

On May 30, 2019 — nearly three months after the meeting between Migdol and

Benjamin at Migdol’s home — Senate officials informed Benjamin and other senators that they

had been awarded additional funding that they could allocate to organizations within their

district. (Id. ¶ 13.) The next day, Benjamin called Migdol and told him that he intended to

procure a $50,000 grant for Organization-1. (Id. ¶ 14.) The Indictment alleges that Benjamin

had not previously made any effort to secure grant funding for Organization-1 and that Benjamin

did not attempt to direct the newly allotted funding toward Organization-2. (See id. ¶¶ 10-14.)

The State Senate approved the grant allocation on June 19, 2019. (Id. ¶ 16.) On June 20,

Benjamin texted Migdol a screenshot of the Senate resolution, reflecting the $50,000 grant. (Id.

¶ 17.) They exchanged the following text messages:

BENJAMIN: Do you recognize the 3rd entity on the list?

MIGDOL: I do very much--does it mean what I’m hoping?

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BENJAMIN: Oh yes it does. We passed the resolution yesterday!

$50k . . . I will call to discuss!

(Id.)

C. Migdol Donates to Benjamin’s Senate Campaign

On July 8, 2019, Migdol met with Benjamin at his Senate district office and gave him

two $10,000 checks, each in the name of one of Migdol’s relatives who did not share the same

last name. (Id. ¶ 18.) Migdol also gave him a $5,000 check on behalf of a limited liability

company that he controlled. (Id.) These checks were made out to Benjamin’s re-election

campaign for State Senate, rather than the Comptroller campaign, because Benjamin would not

have been permitted to raise money for the latter until he filed the CFB certification in

September 2019. But “Benjamin reminded [Migdol], in substance and in part, of the State Grant

for Organization-1 and that Benjamin still expected [Migdol] to procure numerous small

contributions for his Comptroller Campaign.” (Id.)

During the meeting, Migdol also told Benjamin information making it clear that he had

made the three contributions in the names of his two relatives and the LLC to conceal any

connection between himself and the contributions. (Id. ¶ 19.) Benjamin gave Migdol three

blank contribution forms and directed Migdol to complete them. In Benjamin’s presence,

Migdol signed the names of his relatives on the forms. Benjamin then accepted the forms and

the corresponding contributions. (Id.)

D. Migdol Donates to Benjamin’s Comptroller Campaign

By October 2019 — after Benjamin was allowed to begin accepting donations for his

Comptroller campaign — he called Migdol and reiterated that he expected him to begin

procuring small-dollar contributions for it. (Id. ¶ 21.) Migdol did so, providing “numerous”

contributions between October 2019 and January 2021. (Id. ¶ 22.) Many of those contributions

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were fraudulently submitted in the names of people who had not authorized them or who had not

paid for them. (Id.) Other purported donors were reimbursed after the fact. (Id.) In February

2020, the CFB informed Benjamin’s Comptroller campaign that certain of Migdol’s

contributions were ineligible for matching funds because they had been funded by sequentially

funded money orders (among other reasons). (Id. ¶ 28.) In response, in July 2020, the

Comptroller campaign represented to the CFB that some of Migdol’s contributions had been

procured by someone else, something Benjamin knew to be false. (Id.) During this period, the

$50,000 state grant to Organization-1 had not actually been issued, and Benjamin retained the

ability to alter or withdraw it. (Id. ¶ 23.) The Indictment does not allege that Migdol knew that

Benjamin retained the power to alter or withdraw the grant.

Local news reports began to question the legitimacy of donations to Benjamin’s

Comptroller campaign and the grant was therefore never disbursed to Organization-1. (Id. ¶ 24.)

E. Lieutenant Governorship and Concealment of the Alleged Bribery Scheme

Benjamin’s campaign for New York City Comptroller ended when he lost the primary

election in June 2021. (Id. ¶ 7.) In August of that year, newly installed Governor Kathy Hochul

began to consider Benjamin for the position of lieutenant governor. (Id. ¶ 30.) In connection

with the vetting process, Benjamin completed an executive appointment questionnaire attesting

that he had never “directly exercised [his] governmental authority . . . concerning a matter of a

donor [he] directly solicited” and later reiterated the same attestation in an amended

questionnaire. (Id. ¶¶ 30, 31.) He also represented in the amended questionnaire that “while he

regularly voted on legislation with broad implications, he was ‘not aware of any specific matter

that related to a particular donor.’” (Id.)

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F. Indictment

On April 12, 2022, the government filed a five-count indictment against Benjamin,

alleging (1) conspiracy to commit bribery and honest services wire fraud (18 U.S.C. § 371)

(Count One); (2) bribery (18 U.S.C. § 666(a)(1)(B)) (Count Two); (3) honest services wire fraud

(18 U.S.C. §§ 1343 and 1346) (Count Three); (4) falsification of records relating to contributions

to his Senate campaign (18 U.S.C. § 1519) (Count Four); and (5) falsification of records relating

to the executive appointment questionnaire (18 U.S.C. § 1519) (Count Five).

Benjamin now moves to dismiss all five counts of the Indictment. (See Dkt. No. 51.) In

the alternative, Benjamin requests that the Court compel the government to produce materials

relating to its role in Migdol’s plea allocution and to provide a bill of particulars specifying any

additional alleged co-conspirators or bribes that it plans to use as part of its case on Count One.

(Dkt. No. 53 at 5.)

II. The Legal Standard on a Motion to Dismiss the Indictment

The Sixth Amendment guarantees that “in all criminal prosecutions, the accused shall

enjoy the right . . . to be informed of the nature and cause of the accusation.” Rule 7 of the

Federal Rules of Criminal Procedure implements that constitutional guarantee by requiring that

the indictment “be a plain, concise, and definite written statement of the essential facts

constituting the offense charged.” FED. R. CRIM. P. 7(c)(1). An indictment is sufficient if it: (1)

contains the elements of the offense charged and fairly informs a defendant of the charge against

him; and (2) allows him to plead acquittal or conviction to bar future prosecution on the same

offense. Hamling v. United States, 418 U.S. 87, 117 (1974). In meeting these requirements, “[i]t

is generally sufficient that an indictment set forth the offense in the words of the statute itself,”

but only “as long as those words of themselves fully, directly, and expressly, without any

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uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to

be punished.” Id. (quoting United States v. Carll, 105 U.S. 611, 612 (1881)).

The Second Circuit has stated on multiple occasions that “[t]o satisfy these requirements,

an indictment need do little more than . . . track the language of the statute charged and state the

time and place (in approximate terms) of the alleged crime.” United States v. Dawkins, 999 F.3d

767, 779 (2d Cir. 2021); United States v. Stavroulakis, 952 F.2d 686, 693 (2d Cir. 1992). There

are occasions, however, where more is required: “When ‘one element of the offense is implicit in

the statute, rather than explicit, and the indictment tracks the language of the statute and fails to

allege the implicit element explicitly, the indictment fails to allege an offense.’” United States v.

Pirro, 212 F.3d 86, 93 (2d Cir. 2000) (quoting United States v. Foley, 73 F.3d 484, 488 (2d Cir.

1996)). 3 This requirement is essential to the validity of the grand jury process: “If the indictment

does not state the essential elements of the crime, the defendant cannot be assured that he is

being tried on the evidence presented to the grand jury or that the grand jury acted properly in

indicting him.” Pirro, 212 F.3d at 92 (cleaned up).

The requirement that the indictment state every essential element of the crime alleged

does not mean that the government must spell out absolutely everything required to be proved

for an eventual conviction. “Common sense must control . . . and [a]n indictment must be read

to include facts which are necessarily implied by the specific allegations made.” Stavroulakis,

952 F.2d at 693 (quoting United States v. Silverman, 430 F.2d 106, 111 (2d Cir. 1970)).

3
See WAYNE LAFAVE et al., 5 CRIM. PROC. § 19.3(b) (4th ed.) (2021) (“If courts have
added a significant refinement in the interpretation of a particular statutory element, that element
often must be pleaded as interpreted rather than as stated in the statutory language, especially if
the judicial interpretation substantially limits the scope of the statutory language.”).

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III. Counts One, Two, and Three: Quid Pro Quo Bribery

Benjamin moves to dismiss Counts One, Two, and Three of the Indictment for failure to

allege an explicit quid pro quo. Count Two alleges bribery under 18 U.S.C. § 666(a)(1)(B) while

Count Three alleges honest services wire fraud under 18 U.S.C. §§ 1343 and 1346. Count One

charges Benjamin with conspiracy to violate the statutes implicated in Counts Two and Three,

under 18 U.S.C. § 371. Benjamin argues that “to be unlawful, an alleged agreement to exchange

campaign contributions for official action must be explicit: not inferred from ambiguous

statements or a chronology of events, but explicit, meaning actually, clearly, and unambiguously

expressed by the parties.” (Dkt. No. 53 at 1.)

A. The Supreme Court’s Decisions in McCormick and Evans

The parties agree that McCormick v. United States, 500 U.S. 257 (1991), provides the

legal standard for quid pro quo bribery prosecutions involving campaign contributions, including

under the statutes at issue here. 4 (See Dkt. No. 53 at 25; Dkt. No. 54 at 6 n.5.) The parties

4
McCormick dealt with extortion under color of official right in violation of the Hobbs
Act, 18 U.S.C. § 1951, which is not charged in this case. The conclusion that McCormick’s
reasoning applies outside of the § 1951 context has been endorsed broadly. See, e.g., United
States v. Ring, 706 F.3d 460, 466 (D.C. Cir. 2013) (“[W]e assume without deciding . . . that
McCormick, which concerned extortion, extends to honest-services fraud.”); United States v.
Allen, 10 F.3d 405, 411 (7th Cir. 1993) (“Given the minimal difference between extortion under
color of official right and bribery, it would seem that courts should exercise the same restraint in
interpreting bribery statutes as the McCormick Court did in interpreting the Hobbs Act.”); United
States v. Siegelman, 640 F.3d 1159, 1169–70 (11th Cir. 2011) (applying McCormick to bribery
charges under 18 U.S.C. § 666(a)(1)(B)); United States v. Menendez, 132 F. Supp. 3d 610, 623
(D.N.J. 2015) (applying McCormick to bribery charges under 18 U.S.C. § 201(b)); United States
v. Malone, No. 03-CR-00500, 2006 WL 2583293, at *1 (D. Nev. Sept. 6, 2006) (“[T]he Supreme
Court’s reasoning in McCormick [is] equally applicable to charges of honest services wire fraud
where the ‘scheme or artifice to defraud’ involved the payment of campaign contributions.”);
United States v. Pawlowski, 351 F. Supp. 3d 840, 849 (E.D. Pa. 2018) (“Although McCormick
involved a prosecution for Hobbs Act extortion under color of official right, courts have applied
its explicit quid pro quo requirement to prosecutions for honest services fraud and bribery when
the thing of value offered in exchange for an official act is a campaign contribution.”); United

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disagree, however, about whether and how that standard was affected by the Supreme Court’s

subsequent decision in Evans v. United States, 504 U.S. 255 (1992).

In McCormick, the defendant was a member of the West Virginia House of Delegates

who received cash payments from a lobbying group, which he did not report as campaign

contributions. After receiving the payments, he went on to sponsor legislation that eventually

passed, and which benefited the lobbying group. After the favorable bill was enacted, the group

provided McCormick with another cash payment. McCormick was eventually charged and

convicted of, among other things, extorting payments under color of official right in violation of

the Hobbs Act.

The Supreme Court vacated the conviction. It held that receipt of a campaign

contribution violated the statute only if the government could prove an explicit quid pro quo —

that is, “only if the payments are made in return for an explicit promise or undertaking by the

official to perform or not to perform an official act. In such situations the official asserts that his

official conduct will be controlled by the terms of the promise or undertaking.” McCormick, 500

U.S. at 273. “This,” the Court concluded, “defines the forbidden zone of conduct with sufficient

clarity.” Id. The Court explained its concern with criminalizing common political conduct:

Serving constituents and supporting legislation that will benefit the

district and individuals and groups therein is the everyday business
of a legislator. . . . [C]ampaigns must be run and financed. Money
is constantly being solicited on behalf of candidates, who run on
platforms and who claim support on the basis of their views and
what they intend to do or have done. . . . [T]o hold that legislators
commit the federal crime of extortion when they act for the benefit
of constituents or support legislation furthering the interests of some
of their constituents, shortly before or after campaign contributions
are solicited and received from those beneficiaries, is an unrealistic
assessment of what Congress could have meant by making it a crime

States v. Donagher, 520 F. Supp. 3d 1034, 1043–45 (N.D. Ill. 2021) (applying McCormick to
campaign contribution-based bribery charges under 18 U.S.C. § 666(a)(2)).

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to obtain property from another, with his consent, “under color of

official right.” To hold otherwise would open to prosecution not
only conduct that has long been thought to be well within the law
but also conduct that in a very real sense is unavoidable so long as
election campaigns are financed by private contributions or
expenditures, as they have been from the beginning of the Nation.
It would require statutory language more explicit than the Hobbs
Act contains to justify a contrary conclusion. . . .

The receipt of [political] contributions is . . . vulnerable under the

Act as having been taken under color of official right, but only if the
payments are made in return for an explicit promise or undertaking
by the official to perform or not to perform an official act.

Id. at 272-73 (emphasis added). The Court limited its holding to the campaign contribution

context, stating in a footnote: “McCormick’s sole contention in this case is that the payments

made to him were campaign contributions. Therefore, we do not decide whether a quid pro quo

requirement exists in other contexts, such as when an elected official receives gifts, meals, travel

expenses, or other items of value.” Id. at 274 n.10.

Any momentary clarity rapidly diminished — especially after the Court’s subsequent

decision in Evans v. United States, 504 U.S. 255 (1992). Evans concerned the prosecution of a

member of the Board of Commissioners of DeKalb County, Georgia for receiving $7,000 in cash

and $1,000 in campaign contributions from an undercover FBI agent. While the question

presented in Evans was ancillary to the legal standard for bribery in campaign contribution

cases, 5 the Court appeared to shed additional light on its McCormick decision. Evans argued that

the jury charge “did not properly describe the quid pro quo requirement for conviction if the jury

found that the payment was a campaign contribution.” Id. at 268. The Court rejected that

argument and approved of the jury instruction, which stated in part:

5
The question presented in Evans was whether the Hobbs Act required the defendant to
have affirmatively induced the bribe payment, or whether passive acceptance of the payment was
sufficient. 504 U.S. at 267.

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The defendant contends that the $8,000 he received from agent

Cormany was a campaign contribution. The solicitation of
campaign contributions from any person is a necessary and
permissible form of political activity on the part of persons who seek
political office and persons who have been elected to political office.
Thus, the acceptance by an elected official of a campaign
contribution does not, in itself, constitute a violation of the Hobbs
Act even though the donor has business pending before the official.

However, if a public official demands or accepts money in exchange

for [a] specific requested exercise of his or her official power, such
a demand or acceptance does constitute a violation of the Hobbs Act
regardless of whether the payment is made in the form of a campaign
contribution.

Id. at 258-59. The Court clarified that under McCormick, the object of the quid pro quo

agreement need not be fulfilled for the offense to be complete; the offense is complete as soon as

the official receives payment for his agreement to perform the official act. Id. at 268. Finally,

the Court held that “the Government need only show that a public official has obtained a

payment to which he was not entitled, knowing that the payment was made in return for official

acts.” Id.

McCormick and Evans thus present two distinct definitions of quid pro quo: A quid pro

quo under McCormick must involve a payment made in return for an “explicit promise or

undertaking.” A quid pro quo under Evans can be proven inferentially, based on the implication

that an official has knowingly accepted a payment intended to compensate him for an official act.

The lower courts have had a difficult time in parsing how McCormick and Evans relate to

one another. See United States v. Blandford, 33 F.3d 685, 695 (6th Cir. 1994) (“Exactly what

effect Evans had on McCormick is not altogether clear.”); United States v. McGregor, 879 F.

Supp. 2d 1308, 1316–17 (M.D. Ala. 2012) (collecting cases and explaining that “there is

considerable debate over what McCormick [and] Evans . . . require. . . . The Circuit Courts of

Appeals have struggled with these questions.”). The cases raise two pertinent questions: (1)

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Does Evans, a case involving a $7,000 cash bribe and $1,000 in campaign contributions, apply to

cases where the bribery allegations are entirely based on campaign contributions? And (2) how

“explicit” does McCormick require a quid pro quo to be? See United States v. Ring, 706 F.3d

460, 466 (D.C. Cir. 2013) (“The McCormick Court failed to clarify what it meant by ‘explicit,’

and subsequent courts have struggled to pin down the definition of an explicit quid pro quo in

various contexts.”); McGregor, 879 F. Supp. 2d at 1314 (M.D. Ala. 2012) (“The definition of

‘explicit’ remains hotly contested.”).

B. Second Circuit Decisions Applying McCormick and Evans

Though the Second Circuit has not yet had occasion to decide a case alleging bribery in

the form of campaign contributions, it has offered its own interpretation of the meaning of

McCormick and Evans. It first did so in United States v. Garcia, 992 F.2d 409 (1993), where it

stated clearly that Evans provides the legal standard in non-campaign contribution cases:

Although the McCormick Court had ruled that extortion under color
of official right in circumstances involving campaign contributions
occurs “only if the payments are made in return for an explicit
promise or undertaking by the official to perform or not to perform
an official act,” . . . Evans modified this standard in non-campaign
contribution cases by requiring that the government show only “that
a public official has obtained a payment to which he was not entitled,
knowing that the payment was made in return for official acts.”

Garcia, 992 F.2d at 414 (emphasis added) (quoting Evans, 504 U.S. at 268).

The Second Circuit returned to McCormick and Evans in United States v. Ganim, 510

F.3d 134 (2007) (Sotomayor, J.). The court first noted that McCormick had “considered the

requirements for an extortion conviction under color of official right in the special context of

campaign contributions.” Id. at 142. After reciting the McCormick standard — that “payments

are made in return for an explicit promise or undertaking by the official to perform or not to

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perform an official act” — the Court stated that “proof of an express promise is necessary when

the payments are made in the form of campaign contributions.” Id. at 142.

The Ganim court next made clear that Garcia had “harmonized” the tension between

McCormick and Evans. Id. at 143. While proof of a quid pro quo is required to sustain a

conviction in campaign contribution and non-campaign contributions alike, Evans modified the

standard in the latter:

Drawing from Justice Kennedy’s concurrence in Evans, we found

that a quid pro quo was required to sustain a conviction in the non-
campaign context, but that the agreement may be implied from the
official’s words and actions because “‘otherwise the law’s effect
could be frustrated by knowing winks and nods.’”

Id. (quoting Garcia, 992 F.3d at 414 (quoting Evans, 504 U.S. at 274 (Kennedy, J., concurring)).

Subsequent Second Circuit cases — albeit none involving bribery in the form campaign

contributions — have confirmed that the court interprets Evans to have modified the standard of

proof solely in non-campaign contribution cases. See United States v. Silver, 948 F.3d 538, 548

(2d Cir. 2020) (quoting Garcia, 992 F.2d at 414 (“The Court modified McCormick’s ‘explicit

promise’ standard in non-campaign contribution cases.”)); United States v. Rosen, 716 F.3d 691,

701 (2d Cir. 2013) (“Outside the unique context of campaign contributions . . . we have not, in

the context of bribery cases, required proof of an express promise regarding the specific official

acts to be undertaken as part of the exchange.”).

The government hotly contests this circumscribed application of Evans. In its view, the

less-stringent Evans standard applies equally to campaign contribution cases: After all, the

defendant in Evans was convicted in part for accepting $1,000 in campaign contributions. (See

Dkt. No. 54 at 7, 10.) The trial court had instructed the jury that the defendant believed the

$8,000 he received from the FBI agent to be a campaign contribution. (Id. at 10-11.) And

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Justice Kennedy, in his concurrence in Evans, referred to the underlying prosecution as one “in

which it is alleged that money was given to the public official in the form of a campaign

contribution.” 504 U.S. at 277 (Kennedy, J., concurring).

It is unclear, however, whether Evans is best read as limiting or overruling McCormick’s

“explicit quid pro quo” standard in the context of campaign contributions. The Court granted

certiorari in Evans to resolve an issue orthogonal to the question of the quid pro quo standard for

bribes involving campaign contributions, and the majority did not purport to overrule or alter the

standard in McCormick for campaign contribution cases. See United States v. McGregor, 879 F.

Supp. 2d 1308, 1318 (M.D. Ala. 2012) (Thompson, J.) (“[T]he Court’s discussion of the quid pro

quo standard [in Evans] was tangential to the decision.”). Moreover, the majority opinion in

Evans largely focuses on the $7000 cash payment, which, according to the jury’s findings, was

not a campaign contribution. See United States v. Evans, 910 F.2d 790, 798 n.10 (11th Cir.

1990).

But regardless of the merits of the parties’ arguments on how best to reconcile

McCormick and Evans, the Second Circuit has already answered the question. The government

is not able to rebut the Second Circuit’s clear pronouncements that “Evans modified [the

McCormick] standard in non-campaign contribution cases,” Garcia, 992 F.2d at 414, and that

“proof of an express promise is necessary when the payments are made in the form of campaign

contributions,” Ganim, 510 F.3d at 142. The government calls these statements “clearly

incorrect,” citing commentary from other courts that the Second Circuit has propounded an

erroneous interpretation of Evans based on a misreading of the factual background of that case.

(Dkt. No. 54 at 11 n.7 (citing McGregor, 879 F. Supp. 2d at 1318). Unless and until the Second

Circuit expresses a different view, however, this reading of Evans controls. This Court is not

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free to disregard the Second Circuit’s considered interpretation of Supreme Court precedent on

the theory that it is “incorrect.”

The government also tries a different angle, emphasizing that neither Garcia nor Ganim

concerned campaign contributions, making their pronouncements on the McCormick and Evans

standards dicta. (Dkt. No. 54 at 11 n.7, 13.) As Benjamin notes, however, Ganim’s holding was

premised on Second Circuit precedent, derived primarily from Garcia, that non-contribution

cases were to use the Evans standard. (Dkt. No. 54 at 12-13.) To articulate the standard for non-

contribution cases, the court necessarily had to explain the standard in place for contribution

cases. The Ganim and Garcia courts’ rulings on the standard for contribution cases can therefore

be understood as reasoning necessary to reach their holdings, and thus not dicta.

But even if those rulings are dicta, they are the type of dicta that should be given great

weight by district courts in the Second Circuit. See United States v. Oshatz, 912 F.2d 534, 540

(2d Cir. 1990) (“[I]n some contexts expressions of views by an appellate court must be regarded

as the law of the circuit, even though not an announcement of a holding or even of a necessary

step in the reasoning leading to a holding.”); Patsy’s Italian Rest., Inc. v. Banas, 508 F. Supp. 2d

194, 209 (E.D.N.Y. 2007) (“[A]s a general principle, a federal district court is required to give

great weight to the pronouncements of its Court of Appeals, even though those pronouncements

appear by way of dictum.”). The conclusion that Evans modified the standard for non-

contribution cases has now been repeated not only in Ganim and Garcia but in two other Second

Circuit cases. See United States v. Silver, 948 F.3d 538, 548 (2d Cir. 2020); United States v.

Rosen, 716 F.3d 691, 701 (2d Cir. 2013). Particularly in the context of a criminal case, ignoring

repeated and clear — indeed, explicit — rulings by the Second Circuit on the legal standard

governing criminal liability for campaign contributions would be inappropriate as well as unfair.

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C. The Meaning of McCormick’s “Explicit” Requirement

Having concluded that the McCormick standard, and not the Evans standard, applies in

campaign contribution cases in the Second Circuit, the Court turns to how, precisely, to interpret

it. In other words, if an unlawful quid pro quo exists “only if the payments are made in return

for an explicit promise or undertaking by the official to perform or not to perform an official

act,” McCormick, 500 U.S. at 273, how explicit does the promise or undertaking have to be?

The Second Circuit has unfortunately not supplied a clear definition of “explicit.” The

closest it came to shedding light on the term was in Ganim, where it stated that “proof of an

express promise is necessary when the payments are made in the form of campaign

contributions.” Ganim, 510 F.3d at 134 (emphasis added). By substituting the word “express”

in characterizing the McCormick’s “explicit” quid pro quo standard, the court certainly

suggested that “explicit” and “express” are synonyms (or at least something very close). 6

What, then, is the meaning of an explicit or express promise? Logic requires beginning

with the distinction the Second Circuit has drawn between the Evans standard for non-campaign

contribution cases and the McCormick standard for campaign contribution cases. Evans allows

the government to prove its case by implication: “the Government need only show that a public

official has obtained a payment to which he was not entitled, knowing that the payment was

made in return for official acts.” Evans, 504 U.S. at 268. In other words, an “agreement may be

6
In contrast, some courts have read McCormick as imposing a lower standard than its
language suggests by drawing a distinction between the meaning of “explicit” and “express,”
concluding that McCormick’s “explicit” standard requires something less than an “express” quid
pro quo. See United States v. Siegelman, 640 F.3d 1159, 1171 (11th Cir. 2011); United States v.
Blandford, 33 F.3d 685, 696 (6th Cir. 1994); United States v. Menendez, 291 F. Supp. 3d 606,
624 (D.N.J. 2018). This approach does not find support in the Second Circuit’s Ganim opinion,
which treated the terms as synonymous. And it hardly seems persuasive as a matter of ordinary
English-language usage: the phrase “explicit promise” is essentially synonymous with the
phrase “express promise.”

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implied from the official’s words and actions.” Ganim, 510 F.3d at 134. It follows that if the

Second Circuit permits non-campaign contribution quid pro quo prosecutions to rely on proof by

implication, then the explicit/express requirement for contribution cases requires something

more.

In other words, if one thing is clear, it is that an “explicit” promise cannot be satisfied by

implication, as it would be contradictory to hold that a quid pro quo agreement could be

simultaneously “explicit” and “implicit.” Compare Implied, BLACK’S LAW DICTIONARY (11th

ed. 2019) (defining “implied” as “[n]ot directly or clearly expressed; communicated only

vaguely or indirectly,” or “[r]ecognized by law as existing inferentially”), with Explicit, BLACK’S

LAW DICTIONARY (defining “explicit” as “[c]lear, open, direct, or exact” or “[e]xpressed without

ambiguity or vagueness; leaving no doubt”) and Express, BLACK’S LAW DICTIONARY (defining

“express” as “[c]learly and unmistakably communicated; stated with directness and clarity”).

Indeed, such a distinction is supported by Justice Kennedy’s concurrence in Evans, which

distinguished between an “express” agreement and one “implied from words and actions.”

Evans, 504 U.S. at 274 (“The inducement from the official is criminal if it is express or if it is

implied from his words and actions.”) (Kennedy, J., concurring). This reading is also bolstered

by a contextual look at Justice Stevens’ dissent in McCormick, which expressed disapproval of

what he saw as the Court’s requiring that a campaign contribution quid pro quo be made

“explicit rather than implicit” — that is, that the illegal agreement be made “in a particular

form.” McCormick, 500 U.S. at 282 (Stevens, J., dissenting). Instead, Justice Stevens argued

that there need only be a “mutual understanding” that the payment was made in return for the

official’s conferring a benefit or avoiding a harm to the payer. Id. at 283. Only a year later, the

Evans Court appeared to take Justice Stevens’ proposed standard, or one very close to it, and

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adopt it as a new rule — with Justice Stevens writing for the majority. But based on Garcia and

Ganim, the Second Circuit holds that that rule applies only in the context of non-campaign-

contribution cases. Thus, the McCormick standard does not allow for a conviction based only on

proof of “implicit” agreements.

The government argues that the “explicit” requirement cannot be read to mean that a quid

pro quo must be “stated or transcribed,” due to the perverse incentive created when bribery

charges can be brought only against “elected officials careless enough to state or transcribe the

contours of their crime.” (Dkt. No. 54 at 10, 16.) This is essentially the same objection that

Justice Stevens raised in his dissent in McCormick. Whatever its merits as a policy argument,

“the Court can’t really have meant explicit” is not persuasive as a matter of legal interpretation.

But the government’s point begs the question whether the meaning of an “explicit” quid

pro quo is necessarily as narrow as “stated or transcribed” (in the government’s words) (id.), or

“actually, clearly, and unambiguously expressed by the parties” (in Benjamin’s words) (Dkt. No.

53 at 1). It is true that the ordinary meaning of “explicit” is something like “expressed without

ambiguity or vagueness.” BLACK’S LAW DICTIONARY, supra; accord Explicit, MERRIAM

WEBSTER DICTIONARY (2022) (“fully revealed or expressed without vagueness, implication, or

ambiguity”). There might arguably be a secondary meaning of “explicit,” however, that is

simply “clear and unambiguous” — not necessarily including the notion of “expressed.”

Apparently adopting this understanding, the Ninth Circuit has held that “what McCormick

requires is that the quid pro quo be clear and unambiguous, leaving no uncertainty about the

terms of the bargain.” United States v. Carpenter, 961 F.2d 824, 827 (9th Cir. 1992); accord

United States v. Donagher, 520 F. Supp. 3d 1034, 1045 (N.D. Ill. 2021) (quoting Carpenter, 961

F.2d at 826 (“An explicit quid pro quo must ‘be clear and unambiguous, leaving no uncertainty

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about the terms of the bargain.’”)). The problem with this interpretation is that it would

seemingly encompass a quid pro quo that is entirely implicit — that is, based on unspoken

assumptions, winks and nods — so long as the terms of the bargain were “clear and

unambiguous” to the parties themselves. If that is all that is meant by an “explicit” quid pro quo,

then there would appear to be little or no difference between the McCormick standard and the

Evans standard (and little or no reason for Justice Stevens to have dissented in McCormick).

Perhaps the best evidence of the meaning of McCormick’s “explicit” quid pro quo comes

from the facts of McCormick itself. Whatever an “explicit” quid pro quo might entail, it must be

more explicit than the exchange in McCormick — in which the Court reversed the conviction for

lack of a sufficiently “explicit” quid pro quo. The basic structure of the exchange in McCormick

is analogous to that alleged in this case. In McCormick (as here), there is a clear quid

(contributions to the politician’s campaign); a clear quo (in McCormick, sponsoring particular

legislation favorable to the lobbyist’s clients), and circumstantial evidence supporting a pro —

i.e., a direct connection between the two — including even one party’s promise to “see what he

could do.” 7 There is really no question that the quid and the quo were clear and unambiguous.

McCormick’s point was that the pro itself must be clear and unambiguous — and characterized

7
The facts in McCormick were as follows: (1) Robert L. McCormick, a Virginia
legislator, met with a lobbyist to discuss the possibility of introducing certain legislation that
would be favorable to the foreign doctors the lobbyist represented, and agreed to sponsor it; (2)
McCormick informed the lobbyist “that his campaign was expensive, that he had paid
considerable sums out of his own pocket, and that he had not heard anything from the foreign
doctors”; (3) the lobbyist told McCormick “that he would contact the doctors and see what he
could do”; (4) that same day the lobbyist delivered $2,900 in cash to McCormick, and he
delivered two more cash payments later that year; (5) McCormick thereafter sponsored and
actively supported the favorable legislation, which was ultimately enacted into law; (6) two
weeks after the legislation was enacted, McCormick received another cash payment from the
foreign doctors. McCormick, 500 U.S. at 260.

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by more than temporal proximity, winks and nods, and vague phrases like “let me see what I can

do.”

The government offers another plausible interpretation that would lighten the burden of

McCormick’s “explicit” standard while also maintaining a distinction between that standard and

the Evans standard for a quid pro quo in non-campaign-contribution cases. The latter standard, it

argues, allows for a quid pro quo where the quo is not a single specific official act — that is,

where an official commits to benefiting the payor with official acts “as opportunities arise.”

(Dkt. No. 54 at 11.) On this view, the McCormick standard for campaign-contribution cases is

limited to a particular quid (contribution X) being exchanged for a particular quo (official act Y),

and that is what makes the quid pro quo “explicit.” The Second Circuit did approve of the “as

opportunities arise” theory of bribery in Ganim, 510 F.3d at 147, and there is language that

arguably supports this distinction in other cases, all similarly involving non-campaign

contributions. See United States v. Silver, 948 F.3d 538, 566 (2d Cir. 2020); United States v.

Rosen, 716 F.3d 691, 701 (2d Cir. 2013); United States v. Coyne, 4 F.3d 100, 114 (2d Cir. 1993).

While this argument has some force, it ultimately fails. First, McCormick itself involved

a particular quid for a particular quo. If that feature — an exact exchange between a specific

quid and a specific quo — is all that is necessary to make a quid pro quo “explicit,” then the

Supreme Court would have affirmed the conviction rather than reversing. Second, the

government’s interpretation of “explicit” on this theory remains fairly idiosyncratic. As

discussed above, “explicit” ordinarily means “clearly expressed” or at least “clear and

unambiguous.” But one could easily have a clear, unambiguous agreement for an elected official

to benefit a contributor “as opportunities arise.” It seems unlikely that the Second Circuit — and

the Supreme Court in McCormick — had no more in mind than the need for “the specific

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transactions comprising the illegal scheme to match up this for that,” Ganim, 510 F.3d at 147,

when using the words “explicit” and “express” to describe the kind of quid pro quo exchanges

for campaign contributions that are criminalized by the federal bribery and extortion statutes. 8

It does not necessarily follow, however, that a quid pro quo agreement must be “stated or

transcribed” in order to be “explicit.” Consider the following two hypothetical scenarios: 9

Scenario 1: Mayor Doe tells businesswoman Jones that he will

award her company a contract if she donates $5,000 to his
campaign. Jones says, “That sounds great to me.” She sends a
check for $5,000 the next day.

Scenario 2: Mayor Doe tells businesswoman Jones that he will

award her company a contract if she donates $5,000 to his
campaign. Jones smiles, shakes the Mayor’s hand, and leaves. She
sends a check for $5,000 the next day.

Scenario 1 is an explicit agreement shown through oral statements: the terms of the exchange

are clear and unambiguous; the quid and the quo are conditioned on each other; and Jones’s

words constitute an acceptance of Mayor Doe’s explicit offer. Scenario 2 is an explicit

8
The court in Ganim explained that its conclusion as to the validity of the “as
opportunities arise” theory was “a natural corollary of Evans’ pronouncement that the
government need not prove the existence of an explicit agreement at the time a payment is
received.” 510 F.3d at 144-45 (emphasis added). A corollary is a conclusion that follows from a
given set of premises, not simply a restatement of the premises themselves. Though the fact that
a non-campaign-contribution quid pro quo need not be “explicit” might carry the corollary
consequence that it can be proved without demonstrating a link between a specific benefit and a
specific act, it does not necessarily follow that all that is conveyed by the “explicit/non-explicit”
distinction is the necessity or not of proving such a specific link.

9
These scenarios are modified versions of those in Judge Myron Thompson’s thoughtful
discussion of these issues in United States v. McGregor, 879 F. Supp. 2d 1308, 1317-18 (M.D.
Ala. 2012). This Court’s analysis is somewhat different than that of Judge Thompson due
primarily to the differences between the Second Circuit’s and Eleventh Circuit’s governing case
law.

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agreement shown by conduct. That is because the solicitation by Mayor Doe is explicit in its

terms and Jones’s conduct is fairly viewed as acceptance.

Of course, things get more complicated from here, particularly in situations where (1)

there is neither an explicit solicitation (by the official) nor an explicit promise (by the donor)

conditioning the quid and the quo upon each other; (2) there is a significant passage of time

between the two events without any clear and contemporaneous meeting of minds; and/or (3) the

donation or the official act might be based on mixed motives — such as where an official views

the official act as good policy that he would have taken even absent the donation. Consider the

following additional scenarios:

Scenario 3: Businesswoman Jones and Mayor Doe never meet.

But Businesswoman Jones is hoping that the city will award her
company a contract, so she donates $5,000 to Mayor Doe. Six
months later Mayor Doe awards her company a contract.

Scenario 4: Businesswoman Jones meets Mayor Doe at an event.

She tells him: “I like what you’ve been saying about helping small
businesses. I have a great company and we would love to work
with the city.” He tells her that he “would appreciate her support.”
The next day Jones sends Doe a check for $5,000. Six months
later Mayor Doe awards her company a contract.

Scenario 5: Businesswoman Jones meets Mayor Doe at an event.

She tells him: “I like what you’ve been saying about helping small
businesses. I have a great company and we would love to work
with the city.” He tells her: “I would appreciate your support. By
the way, if you send over a draft contract I’ll take a look and see
what I can do.” The next day Jones sends Doe a check for $5,000.
Six months later Mayor Doe awards her company a contract.

Scenario 3 plainly does not constitute a quid pro quo: there is no agreement at all, much less one

conditioning the quid on the quo; and since there is no communication before the donation, the

donation cannot even arguably have been “conditioned” on the official act. Scenario 4 also

probably does not constitute a quid pro quo: it would be a stretch to say that even an implicit

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agreement is created by the parties’ words and conduct here (even if one of the reasons Mayor

Doe ultimately awards the contract is his appreciation for the donation). And Scenario 5

involves at most an implicit agreement because the terms of the quid (the amount of the

donation) are not clear and unambiguous in advance; nor is there a simultaneous meeting of

minds that the donation and official act are conditioned on each other. One might argue that in

Scenario 5 (and perhaps even 4), it should be a jury question whether Mayor Doe reached an

agreement with Businesswoman Jones after he received her check — when he presumably

decided whether $5,000 was enough to justify awarding the contract. Then the jury would have

to decide whether Mayor Doe in fact awarded the contract because of the donation (and

presumably in the hopes of future donations), or instead because he liked the company, or was

impressed by Jones, or for some other reason. But it is those questions that make the possible

quid pro quo in Scenario 5 implicit rather than explicit.

The Court concludes that, for criminal liability for bribery in the context of campaign

contributions, there must be a quid pro quo that is clear and unambiguous, meaning that (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.

D. Constitutional Considerations

The Court is mindful that a defendant seeking dismissal of an indictment “faces a high

hurdle.” United States v. Silver, 117 F. Supp. 3d 461, 464 (S.D.N.Y. 2015) (Caproni, J.). In this

case, the Court’s analysis and conclusion are informed by two important constitutional

protections: the First Amendment and the Due Process Clause of the Fifth Amendment.

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1. First Amendment

First, the Court must consider the Indictment in the larger context of the Supreme Court’s

rulings on the First Amendment and campaign finance. The Court has made clear on numerous

occasions that campaign contributions are political speech implicating fundamental

constitutional guarantees. See McCutcheon v. Fed. Election Comm’n, 572 U.S. 185, 204 (2014)

(characterizing campaign contributions as an exercise of one’s “expressive and associational”

rights under the First Amendment); Buckley v. Valeo, 424 U.S. 1, 24–25 (1976) (observing that

campaign contributions implicate “the contributor’s freedom of political association” under the

First Amendment). The Court reiterated this point just this past Term, stating that “[t]he First

Amendment ‘has its fullest and most urgent application precisely to the conduct of campaigns for

political office.’” Fed. Election Comm’n v. Cruz, 142 S.Ct. 1638, 1650 (2022) (quoting Monitor

Patriot Co. v. Roy, 401 U. S. 265, 272 (1971)).

Because campaign contributions implicate the very foundations of the American

democratic system, the McCormick Court was careful to delineate the boundary between

permissible and impermissible conduct when public officials are raising money from the same

people they are elected to represent: “Whatever ethical considerations and appearances may

indicate, to hold that legislators commit the federal crime of extortion when they act for the

benefit of constituents or support legislation furthering the interests of some of their constituents,

shortly before or after campaign contributions are solicited and received from those

beneficiaries, is an unrealistic assessment of what Congress could have meant by making it a

crime to obtain property from another, with his consent, ‘under color of official right.’” 500 U.S.

at 272. Instead, sanctionable conduct must cross a clear line of impropriety, because “[t]o hold

otherwise would open to prosecution not only conduct that has long been thought to be well

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within the law but also conduct that in a very real sense is unavoidable so long as election

campaigns are financed by private contributions . . . .” Id.

An official act taken in the hope that it will yield campaign contributions is not a bribe; it

is a basic aspect of the American political system. This is a fine distinction, but an essential one:

[I]nfluence and access “embody a central feature of democracy—

that constituents support candidates who share their beliefs and
interests, and candidates who are elected can be expected to be
responsive to those concerns.” . . . To be sure, the “line between quid
pro quo corruption and general influence may seem vague at times,
but the distinction must be respected in order to safeguard basic First
Amendment rights.”

Cruz, 142 S.Ct. at 1653 (quoting McCutcheon, 572 U.S. at 192, 209 (2014)).

To be sure, the mere fact that First Amendment protections are implicated by a

prosecution does not render that prosecution invalid. See, e.g., United States v. Smith, 985 F.

Supp. 2d 547, 605 (S.D.N.Y. 2014), aff’d sub nom. United States v. Halloran, 664 F. App’x 23

(2d Cir. 2016) (“Just because this alleged quid pro quo arrangement involved political-party

officials, they are not entitled to immunity for their actions under the guise of protected

speech.”). This is a case where First Amendment principles are not tangential to the validity of

the prosecution, but rather central to it. In drawing the line between quid pro quo corruption and

general influence, “the First Amendment requires [the Court] to err on the side of protecting

political speech rather than suppressing it.” McCutcheon, 572 U.S. at 209 (quoting Federal

Election Comm’n v. Wisconsin Right to Life, 551 U.S. 449, 457 (2007)).

2. The Fair Warning Requirement of Due Process

The Supreme Court has also made clear that principles of due process require “fair

warning . . . in language that the common world will understand” as to what conduct is

prohibited by law. McBoyle v. United States, 283 U.S. 25, 27 (1931) (Holmes, J.). There are

“three manifestations of the fair warning requirement”: the vagueness doctrine; the rule of

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lenity; and, pertinent here, the principle that “due process bars courts from applying a novel

construction of a criminal statute to conduct that neither the statute nor any prior judicial

decision has fairly disclosed to be within its scope.” United States v. Lanier, 520 U.S. 267, 266

(1997). “[T]he touchstone is whether the statute, either standing alone or as construed, made it

reasonably clear at the relevant time that the defendant’s conduct was criminal.” Id. at 267.

As explained above, there is confusion among the courts about whether the McCormick

standard applies to campaign-contribution cases and about what its “explicit” standard means.

Moreover, while the Second Circuit has not decided a bribery case that was actually based on

campaign contributions, the court has clearly stated, repeatedly and explicitly, that a quid pro

quo in this context must be “explicit” or “express.” It has not further explained what that

standard means. At a minimum, the governing precedents were not clear enough to give

Benjamin “fair notice of what behavior [was] criminal,” Sash v. Zenk, 428 F.3d 132, 134 (2d Cir.

2005), at the time he acted. To impose — or even charge — criminal liability in the Second

Circuit where the conduct did not clearly involve an “explicit” quid pro quo would create a

significant fair-warning problem. These considerations weigh in favor of a stricter interpretation

of the “explicit” quid pro quo requirement.

E. Application to the Indictment

1. Failure to Charge an Essential Element

Applying the principles laid out above, the Court concludes that the Indictment fails to

charge an explicit quid pro quo. As noted above, the government was required not just to track

the language of each relevant statute, but also to explicitly allege any implicit element of each

statute. Here, the bribery statute (18 U.S.C. § 666(a)(1)(B)) and honest services wire fraud

statute (18 U.S.C. §§ 1343 and 1346) do not, on their face, contain any requirement to show an

explicit quid pro quo agreement. But an explicit quid pro quo is an “implicit element” of each

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statutory offense charged here, given that through McCormick and its Second Circuit progeny,

the “courts have added a significant refinement” in how these statutes may be interpreted against

public officials facing prosecution over campaign fundraising. See Pirro, 212 F.3d at 86;

LAFAVE et al., supra, § 19.3(b). The Second Circuit has held — again, explicitly — that “proof

of an express promise is necessary when the payments are made in the form of campaign

contributions.” Ganim, 510 F.3d at 142. If the government must prove the existence of an

explicit or express promise to sustain a conviction, then it constitutes an essential element of the

crime that must be alleged in the indictment. Otherwise, there is no assurance that the grand jury

considered that essential element. In United States v. Donagher, 520 F. Supp. 3d 1034 (N.D. Ill.

2021), Judge John Z. Lee dismissed an indictment’s federal bribery charges on precisely this

ground. As he explained:

[E]nsuring that the grand jury considered the explicit quid pro quo
element in the context of campaign contributions is anything but a
technicality; to the contrary, given the controlling law, doing so is
necessary to shield ordinary, constitutionally protected campaign
financing activities from criminal prosecution.

Id. at 1046 (citing McCormick, 500 U.S. at 271-73).

With this understanding in mind, Counts One, Two, and Three of the Indictment must be

dismissed because it does not allege as an element of any of the three counts that Benjamin made

an “explicit” agreement with Migdol that his conduct as a state senator would be controlled in

exchange for campaign contributions. To be sure, the indictment contains phrases that gesture

toward an agreement, most convincingly at:

• Paragraph 1: “From at least in or about 2019, up to and including at least

in or about 2021, Brian Benjamin, the defendant, participated in a scheme
to obtain campaign contributions from a real estate developer [Migdol] in
exchange for Benjamin’s agreement to use, and actual use of, his official
authority and influence as a New York State senator to obtain a $50,000

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grant of state funds [for Organization-1].” (Dkt. No. 18 ¶ 1) (emphasis

added).

• Paragraph 40: “Benjamin solicited and received campaign contributions

from [Migdol] in exchange for Benjamin’s agreement to use, and actual
use of, his official authority and influence to obtain the State Grant for
Organization-1.” (Id. ¶ 40) (emphasis added).

In its opposition brief, the government insists that the “in exchange for” phrasing satisfies the

explicit requirement under McCormick and Ganim. (Dkt. No. 54 at 5-6.) It does not. An

indictment relying on an implicit statutory element must allege it explicitly. Pirro, 212 F.3d at

93. To do so, it follows that the government must directly state the implicit element — or a

direct synonym for it — in the indictment. “In exchange for” is not synonymous with explicit or

express. A person gives something “in exchange for” something else in any quid pro quo,

whether an explicit quid pro quo under McCormick or an implicit quid pro quo under the Evans

standard for non-campaign-contribution cases. Indeed, this is evident from cases like Ganim and

Coyne, where “in exchange for” was used in the jury instructions where the defendant was

charged with bribery that was not based on campaign contributions. See Ganim, 510 F.3d at 144

(“Both parties appear to agree that the language in the first paragraph [of the jury instructions]—

requiring that the defendant know ‘that the payment was made in return for official acts,’ and

‘that the payment was made in exchange for a specific exercise of the defendant's official

powers’ — accurately portrays the applicable quid pro quo standard.”); accord United States v.

Coyne, 4 F.3d 100, 113–14 (2d Cir. 1993).

The Court recognizes that “[a]n indictment must be read to include facts which are

necessarily implied by the specific allegations made.” Stavroulakis, 952 F.2d at 693 (citing

Silverman, 430 F.2d at 111). But the existence of an exchange or agreement does not necessarily

imply the existence of an explicit or express agreement. The use of “exchange” was thus

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insufficient to fully apprise the grand jury of a necessary element of Counts Two and Three (and,

therefore, Count One, which charges a conspiracy to commit the latter two counts). 10 See Pirro,

212 F.3d at 92; Donagher, 520 F. Supp. at 1046.

Aside from the particular phrasing above, the government argues that an explicit quid pro

quo can be “inferred from a course of conduct or the surrounding circumstances,” including the

timing of Benjamin and Migdol’s interactions. (See Dkt. No. 54 at 8; Dkt. No. 64 at 27.) Here,

the government cites out-of-circuit precedent for the proposition that “[e]xplicit, as explained in

Evans, speaks not to the form of the agreement between the payor and payee, but to the degree to

which the payor and payee were aware of its terms, regardless of whether those terms were

articulated.” (Dkt. No. 54 at 9, quoting Blandford, 33 F.3d at 686). This argument fails for the

reasons outlined above. While inferences drawn from Benjamin’s course of conduct would be

sufficient to satisfy the Evans standard, they are not sufficient to satisfy McCormick’s “explicit”

requirement, as interpreted by the Second Circuit in Garcia and Ganim. While the government

cites cases that bolster its view that Evans applies here, those lines of authority are in conflict

with the relevant guidance from the Second Circuit. Compare Blandford, 33 F.3d at 696 (“Evans

provided a gloss on the McCormick Court's use of the word ‘explicit’ to qualify its quid pro quo

requirement. . . . Our reading of Evans — as limited to the campaign contribution context — is

bolstered by the fact that the case, after all, involved campaign contributions.”) with Garcia, 992

F.2d at 414 (“Evans modified [the McCormick] standard in non-campaign contribution cases

. . . .”).

10
This is also the case for the places where the indictment alleges an agreement between
Benjamin and Migdol. E.g., Dkt. No. 18 ¶ 38 (“Benjamin . . . corruptly solicited and demanded
for the benefit of a person, and accepted and agreed to accept, something of value from a person,
intending to be influenced and rewarded . . . .” ).

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Bound by guidance from the Second Circuit, the Court concludes that Counts One, Two,

and Three of the Indictment must be dismissed for failure to charge an essential element.

2. Failure to Allege a Crime

Although presenting a closer question, the Court also agrees with Benjamin’s separate

but related argument that the facts alleged in the Indictment, even if true, fail to establish

criminal liability as to these counts. (Dkt. No. 53 at 17-18.) The government’s recitation of the

timeline of events between Benjamin and Migdol does not allege the existence of any agreement

between the two at the time that Benjamin procured the $50,000 in state funding for

Organization-1. The Indictment therefore fails to allege any offense under the statutes, as

interpreted through the lens of McCormick.

The Second Circuit has set constraints on the Court’s consideration of the alleged facts at

this stage of the proceedings: “[A]lthough a judge may dismiss a civil complaint pretrial for

insufficient evidence, a judge generally cannot do the same for a federal criminal indictment.”

United States v. Sampson, 898 F.3d 270, 280 (2d Cir. 2018). As a result, “when a defense raises

a factual dispute that is inextricably intertwined with a defendant’s potential culpability, a judge

cannot resolve that dispute on a Rule 12(b) motion.” Id. at 281.

But the issue here is more than a factual dispute — it goes to whether the government has

properly alleged that any criminal offense occurred. “Since federal crimes are solely creatures of

statute, a federal indictment can be challenged on the ground that it fails to allege a crime within

the terms of the applicable statute.” United States v. Aleynikov, 676 F.3d 71, 75–76 (2d Cir.

2012) (citing Dowling v. United States, 473 U.S. 207, 213 (1985) (holding indictment

insufficient where allegation that defendant stole digital property did not allege a crime under the

relevant statute) (cleaned up)); see also Pirro, 212 F.3d at 92-93 (dismissing tax fraud and

perjury counts because conduct alleged in indictment did not violate applicable statute); United

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States v. Heicklen, 858 F. Supp. 2d 256, 275–76 (S.D.N.Y. 2012) (dismissing indictment where

facts alleged did not constitute the crime of attempting to influence the actions of a juror); United

States v. Kerik, 615 F. Supp. 2d 256, 271–74 (S.D.N.Y. 2009) (dismissing false-statement charge

based on allegations in the indictment because defendant’s alleged failure to disclose information

in response to a question that the court determined was “fundamentally ambiguous” was not a

crime as a matter of law).

The courts have not always distinguished these two legal issues: the requirement that an

indictment allege all the essential elements of the crime and the requirement that the facts alleged

in an indictment constitute an offense. But they are distinct questions. See Heicklen, 858 F.

Supp. 2d at 262 (“[A]n indictment that alleges the essential elements of the crime and states

specific facts indicating at least the time and the place of the alleged offense is generally

sufficient. In this case, however, the basis for the motion to dismiss the Indictment is neither a

pretrial challenge to the evidence nor a claim that the indictment is not pled with sufficient

specificity, but rather is an argument that the facts alleged do not constitute an offense as a

matter of law.”).

McCormick holds that an elected official’s acceptance of campaign contributions is

sanctionable “only if the payments are made in return for an explicit promise or undertaking by

the official to perform or not to perform an official act. In such situations the official asserts that

his official conduct will be controlled by the terms of the promise or undertaking.” 500 U.S.

257, 273 (emphasis added). The second sentence is key to understanding the limits of the

McCormick rule: the explicit agreement must precede the official conduct.

The timeline of events set forth in the Indictment does not meet this basic requirement of

McCormick: At the end of the March 8, 2019 meeting, after Benjamin asked Migdol to help him

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bundle small-dollar campaign contributions, Migdol demurred, explaining why he could not do

what Benjamin had requested. Benjamin then responded, “Let me see what I can do.” Up to this

point, there was no agreement because Migdol had not communicated any intent to do what

Benjamin asked or to ask for something in return. The next key date was May 31, 2019, when

Benjamin informed Migdol that he planned to obtain the $50,000 grant. The Indictment still

does not allege any response from Migdol to this offer, and certainly no explicit promise that

Benjamin would obtain the grant money only if Migdol would later pay him campaign

contributions. On June 3, 2019, Benjamin submitted the official request form for the grant

allocation — having made no explicit agreement with Migdol that controlled the terms of this

action.

The government contests this line of reasoning. (See Dkt. No. 54 at 8.) The bulk of its

rebuttal relates back to its argument that a quid pro quo in campaign contribution cases can be

“inferred from an ongoing course of conduct” and “is criminal if it is express or if it is implied

from . . . words and actions, so long as [an elected official] intends it be so and the [bribe] payor

so interprets it.” (Id. at 14-15 (quoting Evans, 504 U.S. at 274 (Kennedy, J., concurring in part

and concurring in the judgment))). It may be true that, under Evans, a quid pro quo can be

inferred from (1) Benjamin securing the grant with the intent that it could yield a reward from

Migdol and (2) Migdol interpreting Benjamin’s action as a down-payment on future campaign

contributions, in combination with (3) Benjamin “reminding” Migdol of the grant as a cudgel to

drive Migdol to procure more donations. But as explained above, Evans does not supply the

governing legal standard here. McCormick requires an agreement that is clear and unambiguous

and in turn controls the action. It does not permit the action to serve as proof of the agreement.

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The government next stresses that the Indictment does not — and need not — contain all

of the evidence it will present at trial. (E.g. Dkt. No. 64 at 37.) Benjamin makes much of the

government’s choice to present the grand jury with a speaking indictment containing a high

degree of factual detail, contending that it is appropriate for the Court to consider those facts in

determining the validity of the Indictment. (E.g. Dkt. No. 60 at 5; Dkt. No. 64 at 19). While the

government is certainly correct that an indictment need not divulge the bulk of its evidence, the

Court is permitted to consider whether the facts, as alleged on the face of the indictment, satisfy

the statutory definition of a crime. See Aleynikov, 676 F.3d at 76-82. For example, in United

States v. Alfonso, the district court dismissed the first count of the indictment because it failed to

satisfy the elements of the Hobbs Act that permitted the federal court to exercise jurisdiction,

namely a nexus to interstate commerce. 143 F.3d 772, 774 (2d Cir. 1998). The Second Circuit

reversed, warning:

To the extent that the district court looked beyond the face of the
indictment and drew inferences as to the proof that would be
introduced by the government at trial to satisfy the Hobbs Act’s
jurisdictional element . . . such an inquiry into the sufficiency of the
evidence was premature. Unless the government has made what can
fairly be described as a full proffer of the evidence it intends to
present at trial to satisfy the jurisdictional element of the offense, the
sufficiency of the evidence is not appropriately addressed on a
pretrial motion to dismiss an indictment.

Id. at 776–77. Here, in contrast, the Court need not look beyond the face of the Indictment

or take any inferential steps to conclude that the facts alleged in the indictment do not

allege a violation of the given statutes, as modified by McCormick. Further, the

indictment here is substantively different from the indictment in Alfonso. There, the

indictment did not plead specific facts about the defendants’ conduct, instead alleging in

“conclusory terms” that defendants had violated Hobbs Act. Id. at 776. Here, the

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Indictment recites fourteen pages of factual allegations, drawing a clear picture of the

government’s theory about the allegedly illegal agreement between Benjamin and Migdol.

While the government has every right to present more evidence at trial, the Court can

“fairly . . . describe” the Indictment as something much closer to a “full proffer” than the

indictment at issue in Alfonso.

The government also attempts to locate a sufficient showing of an agreement in the fact

that Benjamin retained the power to alter or retract the grant from Organization-1. (Dkt. No. 18

¶ 23; Dkt. No. 64 at 25). But this permits, at best, an inference about Benjamin’s state of mind.

It does not show a clear, controlling agreement between him and Migdol, at least because the

Indictment does not allege that Migdol was aware that Benjamin had any power to alter the

grant.

Because the facts alleged in Counts One, Two, and Three of the Indictment do not

constitute an offense under McCormick, those counts must be dismissed.

IV. Counts Four and Five

Benjamin also moves to dismiss Counts Four and Five, which both charge him with

knowingly making a false entry in a record with the intent to impede an investigation under 18

U.S.C § 1519. 11 He argues that even if all the factual allegations in the Indictment are assumed

true, the government has failed to allege a violation of § 1519. (Dkt. No. 53 at 34; Dkt. No. 60 at

11
“Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or
makes a false entry in any record, document, or tangible object with the intent to impede,
obstruct, or influence the investigation or proper administration of any matter within the
jurisdiction of any department or agency of the United States or any case filed under title 11, or
in relation to or contemplation of any such matter or case, shall be fined under this title,
imprisoned not more than 20 years, or both.” 18 U.S.C. § 1519.

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32.) Alternatively, he contends that “the government has charged § 1519 in a manner that is so

attenuated that it is unconstitutionally vague and improper.” (Id.)

Benjamin’s first argument is based on the following logic: because “the Indictment fails

to allege that Mr. Benjamin committed bribery in the first place, it alleges no basis for the claim

that Mr. Benjamin believed he was committing bribery, much less that he contemplated or

knowingly intended to obstruct a potential future investigation into a non-existent bribery

scheme under § 1519.” (Dkt. No. 53 at 34.) Defendant’s logic assumes that the validity of

Counts Four and Five cannot be assessed independently of the validity of the first three counts.

That is not the case. In United States v. Baldeo, the defendant argued that the court should enter

a judgment of acquittal because he was “acquitted of the crime charged, but convicted of seeking

to obstruct the investigation of the crime he never committed.” No. 13 Crim. 125 (PAC), 2014

WL 6807833, at *2 (S.D.N.Y. Dec. 3, 2014). The court rejected this argument because the

obstruction conviction stood on its own: “A conviction of obstructing justice by impeding an

investigation does not require that the investigation itself lead to a conviction; rather, an

obstruction charge has its own elements, elements which the jury found to exist based on the

evidence presented.” Id. Though this case is at the pre-trial stage, the same logic applies: a

§ 1519 charge has its own elements that the government is required to charge in the indictment. 12

To that point, the Indictment properly charged the § 1519 violations by tracking the

language of the statute and stating the time and place of the alleged crimes. Dawkins, 999 F.3d

at 779. (See Dkt. No. 18 ¶¶ 42-44). Unlike the bribery and honest services fraud statutes, for

which McCormick imposed an implicit and essential element in the context of campaign

12
Benjamin notes that Baldeo is distinguishable on its facts because the defendant was
aware of an ongoing FBI investigation when he obstructed justice. (Dkt. No. # at 33.) That may
be true, but the court’s legal analysis and conclusion in Baldeo are instructive by analogy.

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contribution cases, the obstruction statute does not contain any such implicit elements. Simply

alleging the statutory elements is sufficient.

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.

As to Benjamin’s second argument, that the government charged § 1519 in a manner that

is unconstitutionally vague and improper, the Court is not persuaded. Benjamin relies on United

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States v. Scott, 979 F.3d 986 (2020), for the proposition that § 1519 must be interpreted to

require that a defendant “knowingly act with the intent to impede an investigation” to avoid

being void for vagueness. (Dkt. No. 53 at 37 (citing Scott, 979 F.3d at 993)). But at this stage in

the proceedings, the Court is not examining the weight of the evidence on the knowledge

requirement — the Indictment properly alleges knowledge as one of the statutory elements in

Counts Four and Five. Instead, the relevant lesson from Scott is that § 1519 does not require a

nexus between the defendant’s obstructive act and a specific pending or reasonably foreseeable

proceeding: “§ 1519 makes no reference to a concrete proceeding.” Id. at 992 (contrasting

§ 1519 with the nexus requirement in 26 U.S.C. § 7212(a)). Benjamin counters that while

§ 1519 does not require a nexus, its application is still constrained because it requires a

“demonstrable connection” to a federal investigation, “whether past, present, or future.” (Dkt.

No. 53 at 38.) This is belied by the Scott decision, which held that § 1519 does not require a

concrete proceeding to be on the horizon.

V. Benjamin’s Requests for Additional Discovery and a Bill of Particulars

Benjamin requests that the Court order the government to provide further discovery about

the events leading up to Migdol’s plea allocution, arguing that these materials “go to the heart of

Mr. Benjamin’s defense that there was no explicit quid pro quo (or any quid pro quo at all).”

(Dkt. No. 53 at 64.) Because the three counts of the indictment that rest on the existence of a

quid pro quo have been dismissed, this request is denied as moot.

Alternatively, even if the requested material could be viewed as relevant to Counts Four

and Five, Benjamin’s request is still denied. While Brady requires that the government disclose

all evidence materially favorable to the accused, it does not permit a “broad and blind fishing

expedition” into the government’s files. United States v. Delacruz, No. 14 Crim. 815 (KBF),

2015 WL 2211943, at *1 (S.D.N.Y. May 12, 2015). The crux of Benjamin’s complaint is that

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the government has failed to explain the specific “inaccuracies” in the original draft of Migdol’s

allocution that led to the creation of the subsequent draft. The prosecution has already produced

the initial and revised plea allocutions, in addition to a written account of the prosecution’s

exchanges with Migdol’s counsel on the eve of the plea. (Dkt. No. 54 at 55.) And the

prosecution has represented that it is unaware of any undisclosed emails or notes between it and

Migdol’s counsel regarding the allocution. (Id. at 59.)

Finally, Defendant moves for a bill of particulars identifying (1) all known co-

conspirators and (2) all other alleged bribes and official acts, both in relation to Count One.

Because Count One has been dismissed, this request is also denied as moot.

VI. Conclusion

For the foregoing reasons, Defendant’s motion to dismiss the indictment is granted as to

Counts One, Two, and Three, and denied as to Counts Four and Five.

Defendant’s requests for additional discovery and a bill of particulars are denied as moot.

The Clerk of Court is directed to close the motions at Docket Numbers 48 and 51.

SO ORDERED.

Dated: December 5, 2022

New York, New York

____________________________________
J. PAUL OETKEN
United States District Judge

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