UNITED STATES OF AMERICA v. JEREMY REICHBERG, also known as Jeremiah Reichberg, also known as Yermy Reichberg

New York, New York - Criminal defense lawyer represented defendant with honest services wire

fraud, and 2; conspiracy to commit honest services wire fraud, and 3; payment of bribes and gratuities; conspiracy to pay bribes and gratuities, and obstruction of justice charge.

Defendant-Appellant Jeremy Reichberg ran a business selling

favorable outcomes to encounters with the New York Police

Department (NYPD), which he secured by bribing NYPD officers.

Following a jury trial, Reichberg was convicted on musltiple bribery

charges and obstruction of justice in the United States District Court

for the Southern District of New York (Gregory H. Woods, J.).

Reichberg now appeals his convictions, challenging the pre-trial

denial of his motion to suppress evidence, a number of evidentiary

and trial-management rulings, the district court's failure to inquire

into one of his attorneys' potential conflict of interest, the jury

instructions, and the sufficiency of the evidence in support of his

convictions. None of Reichberg's arguments has merit. Accordingly,

we AFFIRM the judgment of conviction.1

BACKGROUND

Jeremy Reichberg was a self-styled Brooklyn "liaison” to the

NYPD,2 in the business of selling preferred outcomes to encounters

with law enforcement. Reichberg's business model functioned by

providing lavish, in-kind benefits to high-ranking NYPD officers

1 The resolution of this appeal was held pending resolution of the appeals

to this court in United States v. Skelos, Nos. 18-3421-cr & 18-3442-cr, which in part

concerned a related legal issue. See infra Part IX. Skelos was decided on February

23, 2021. United States v. Skelos, 988 F.3d 645 (2d Cir. 2021).

2 App. at 3004 (Reichberg's co-conspirator testified that Reichberg called

himself a "liaison” to the NYPD and used that title in his email signature). 4 19-1645-cr

who, in turn, exerted their influence to get Reichberg's friends and

clients favorable treatment from the NYPD.

Beginning in 2013, Reichberg partnered in this enterprise with

Jona Rechnitz, who pled guilty and testified at trial as a cooperating

witness for the government. Reichberg would contact NYPD officers

to request the favors and, if the officer came through, would tell

Rechnitz which officer should receive benefits. The officers with

whom the pair cultivated these relationships included, among others,

Philip Banks III, the Chief of the Department and an unindicted coconspirator in the scheme; Chief Michael Harrington, Banks's

Executive Officer, who pled guilty; and James Grant, who was a

lieutenant in Reichberg's precinct before his promotion to the 19th

Precinct's Commanding Officer. Grant was Reichberg's co-defendant

at trial.

The benefits the officers received took many forms, including

trips on private jets and luxury hotel stays with prostitutes; football,

basketball, and hockey tickets worth tens of thousands of dollars;

international travel arrangements to Israel and the Dominican

Republic; home improvements worth thousands of dollars; and

approximately $60,000 in business steered toward certain of the

officers' private security companies.

Reichberg and Rechnitz's largesse obtained a host of favors

from NYPD officers. For example, one of Reichberg's clients was

arrested three separate times, but each time was released from

custody after Reichberg contacted NYPD officers. Grant exerted his

influence to secure the processing and approval of gun licenses, even

when those applications were deficient or the applicants unqualified5 19-1645-cr

for the type of license sought. Grant conferred this benefit on

Reichberg, who obtained a full-carry gun license without the licensing

division bothering to investigate whether he qualified for one. Banks

secured Grant's promotion to Inspector in the 19th Precinct, on

Manhattan's Upper East Side—a strategic posting valuable to

Reichberg and Rechnitz because of its proximity to Rechnitz's

Manhattan office. Officers also provided police rides and police

escorts to Reichberg and Rechnitz's friends to cut through traffic,

arranged for an NYPD police boat to give rides to attendees at a

barbecue Reichberg hosted, and arranged for an NYPD helicopter to

do a flyover of a cocktail cruise organized by Reichberg.

Ultimately, in April 2018, an indictment3 filed in the Southern

District of New York charged Reichberg with honest services wire

fraud, in violation of 18 U.S.C. §§ 1343, 1346, and 2; conspiracy to

commit honest services wire fraud, in violation of 18 U.S.C. §§ 1343,

1346, and 1349; payment of bribes and gratuities, in violation of 18

U.S.C. §§ 666 and 2; conspiracy to pay bribes and gratuities, in

violation of 18 U.S.C. § 371; and obstruction of justice, in violation of

18 U.S.C. §§ 1512(c)(1) and 2.4 The indictment charged Grant with

honest services wire fraud, conspiracy to commit honest services wire

fraud, conspiracy to pay bribes and gratuities, and receipt of bribes

and gratuities, in violation of 18 U.S.C. § 666.

In January 2019, following an eight-week jury trial, Reichberg

was convicted of honest services wire fraud, conspiracy to commit

3 The first indictment was filed on July 7, 2016.

4 Reichberg was also charged with conspiracy to misapply and convert

property of a program receiving federal funds, in violation of 18 U.S.C. § 371, but

that charge was dismissed before trial.6 19-1645-cr

honest services wire fraud, and conspiracy to pay bribes and

gratuities (the bribery counts), as well as obstruction of justice. He

was acquitted of the payment of bribes and gratuities. Grant was

acquitted of all charges.

The district court sentenced Reichberg to 48 months'

imprisonment on each of the four counts of conviction, to run

concurrently, and two years' supervised release. This appeal ensued.

DISCUSSION

On appeal, Reichberg challenges his convictions as follows:

(1) evidence collected from his electronic devices should have been

suppressed because it was seized in violation of the Fourth

Amendment; (2) the district court prejudiced him by correcting a

misstatement of law made by co-defendant Grant's attorney;

(3) evidence of uncharged conduct should have been excluded as

unfairly prejudicial; (4) the government disclosed certain documents

in an untimely fashion, prejudicing his defense; (5) the temporary

admission of a phone call (GX-300A) against his co-defendant

generated spillover prejudice against him; (6) the admission of his

non-testifying co-defendant's statements against that co-defendant

violated Reichberg's Confrontation Clause rights; (7) the district court

abused its discretion in excluding two proposed expert witnesses for

the defense; (8) the district court erred by failing to hold a hearing to

investigate his attorney's potential conflict of interest; (9) the jury was

wrongly instructed on the relevant law; and (10) the evidence was 7 19-1645-cr

insufficient to support his convictions. None of these arguments has

merit.5

I. Motion to suppress

Reichberg argues that the district court erred by denying his

motion to suppress evidence from certain email accounts and

electronic devices. He does not contest the initial seizure of those

accounts and devices, but rather, he argues that the government's

overly broad production of data to his co-defendants from those

devices worked an independent unreasonable seizure in violation of

the Fourth Amendment. We assume for the sake of discussion that

what Reichberg describes could be an independent Fourth

Amendment violation, but we determine that, under the

circumstances, suppression was not warranted.

The Fourth Amendment guarantees the right to be free from

unreasonable searches and seizures.6 "To safeguard Fourth

Amendment rights, the Supreme Court created 'an exclusionary rule

that, when applicable, forbids the use of improperly obtained

evidence at trial.'”7 Suppression (i.e., exclusion) of evidence is

required only when suppression would "deter future unlawful . . .

5 Reichberg also argues that the district court's cumulative errors at trial

deprived him of a fair trial. Because we find no error in any of Reichberg's specific

objections, we have no occasion to consider the cumulative effect of the alleged

errors. United States v. James, 712 F.3d 79, 107 (2d Cir. 2013).

6 U.S. CONST. amend. IV.

7 United States v. Bershchansky, 788 F.3d 102, 112 (2d Cir. 2015) (quoting

Herring v. United States, 555 U.S. 135, 139 (2009)).8 19-1645-cr

conduct and thereby effectuate the guarantee of the Fourth

Amendment against unreasonable searches and seizures.”8

The district court, whose factual findings we review only for

clear error,9 denied Reichberg's motion upon finding that the

government produced the complained-about data after an

"objectively reasonable, if unfortunate, miscommunication between

the parties regarding what was being produced and to whom.”10

Specifically, the district court found that the government believed

Reichberg was aware that it was producing all data, rather than only

responsive data, to his co-defendants. Supporting this belief was the

fact that the protective order entered in the case described the

government's discovery practices to that effect and the fact that the

government had previously made a similarly broad production of

Grant's and Reichberg's emails to all defendants.

We easily agree with the district court, upon de novo review of

its denial of Reichberg's suppression motion,11 that suppression was

not required in this circumstance. In light of the communications

between the parties, it is plain that the government was operating

under an objectively reasonable belief that Reichberg had consented

to its production practices. And where the government reasonably

8 Id. (quoting United States v. Calandra, 414 U.S. 338, 347 (1974)).

9 United States v. Raymonda, 780 F.3d 105, 113 (2d Cir. 2015).

10 App. at 7683–84.

11 Raymonda, 780 F.3d at 113.9 19-1645-cr

believed the defendant consented to the challenged practice,

"suppression would do nothing to deter . . . misconduct.”12

II. Misstatement of law by Grant's counsel

Reichberg argues that he is entitled to a new trial because he

was prejudiced by the district court's instruction to the jury that

corrected a legal misstatement by Grant's counsel. We discern no

error in the district court's handling of the situation and no prejudice

to Reichberg.

Grant's counsel concluded his opening statement to the jury

with a misstatement of law, stating: "[I]f you believe Jimmy Grant and

Jeremy Reichberg are friends, you must vote not guilty.”13 The

government immediately moved for a curative instruction, and the

district court received briefing and heard argument from counsel on

how to address the problem.

The district court then advised the jury that what Grant's

counsel had said was not the law. It elaborated:

Of course, being friends with someone is not

against the law, and giving something of

value to a public official solely out of

friendship is also not a crime, but contrary

to Mr. Meringolo's statement, under the

law, it is possible to commit the offenses

12 United States v. Gomez, 877 F.3d 76, 94 (2d Cir. 2017) (quoting Davis v.

United States, 564 U.S. 229, 232 (2011)).

13 App. at 724.10 19-1645-cr

charged here together with people with

whom you have a friendship.14

Reichberg asserts that this correction by the district court

prejudiced him by leading the jury to believe that any consideration

of his friendship with Grant was improper. We disagree. The district

court had no choice but to correct the plain misstatement of law from

Grant's counsel. The district court substituted the correct legal

standard in its place, and did so in a balanced and legally accurate

fashion.15

III. Evidence of uncharged conduct

On appeal, Reichberg challenges the admission at trial of three

categories of evidence: (1) evidence of him currying favor with

Mayor Bill de Blasio in expectation of preferential treatment;

(2) evidence about his involvement in a bribe between the President

of the Correction Officers' Benevolent Association, Norman

Seabrook, and a hedge fund manager, Murray Huberfeld; and

(3) evidence that he directed investments to a liquor business run by

an individual named Hamlet Peralta in exchange for commissions.

Reichberg objected to the admission of the first two categories

before the district court, so we review those evidentiary rulings for

14 Id. at 1458.

15 See United States v. Coyne, 4 F.3d 100, 113 (2d Cir. 1993) (noting that where

a defendant argues friendship provided an innocent motivation for his actions, it

is proper to instruct the jury that "a valid purpose that partially motivates a

transaction does not insulate participants in an unlawful transaction from criminal

liability” (internal quotation marks omitted)).11 19-1645-cr

abuse of discretion.16 We review his unpreserved objection to the

Peralta evidence only for plain error.17 Regardless of the standards of

review, we find no error in the admission of this evidence.

1. De Blasio evidence

The evidence of Reichberg's efforts to gain favor with de Blasio

was properly admitted as evidence of intent under Federal Rule of

Evidence 404(b). Rule 404(b) makes evidence of uncharged conduct

admissible to prove the defendant's intent in committing the charged

conduct.18 Here, Rechnitz testified that he and Reichberg developed

a relationship with de Blasio's chief fundraiser during the 2013 New

York City mayoral campaign, and that they did so because "we

wanted access, we wanted influence . . . . When we called, we wanted

results.”19 Rechnitz further testified that when he and Reichberg

bundled contributions for the campaign, they "would only be

donating these funds and getting involved if we were treated that

way.”20 This evidence of similar efforts to obtain "results” from

public officials by currying financial favor undercut Reichberg's

argument at trial that the benefits he provided NYPD officers were

16 United States v. Hendricks, 921 F.3d 320, 326 (2d Cir. 2019), cert. denied, 140

S. Ct. 870 (2020).

17 United States v. Simels, 654 F.3d 161, 168 (2d Cir. 2011).

18 Fed. R. Evid. 404(b)(1).

19 App. at 3207.

20 Id.12 19-1645-cr

simply gifts, motivated purely by friendship and given with no

expectation of receiving anything in return.21

We also discern no violation of Federal Rule of Evidence 403 in

the admission of this evidence. Rule 403 requires that, for relevant

evidence to be admissible, its probative value must not be

substantially outweighed by the danger of unfair prejudice.22 There

is no such danger here, because the uncharged conduct—legal

campaign contribution bundling—was less inflammatory than the

charged conduct.23 We therefore find no abuse of discretion in the

admission of this evidence.

2. Seabrook-Huberfeld evidence

The evidence concerning the bribe between the Benevolent

Association President Norman Seabrook and hedge fund manager

Murray Huberfeld was properly admitted as evidence of intent for

much the same reasons. At trial, Rechnitz described how he had

arranged for Seabrook to invest tens of millions of dollars into

Huberfeld's hedge fund in return for a kickback. Rechnitz and

Reichberg then benefitted from this arrangement in two ways:

Huberfeld directed charitable donations to organizations of their

choice, and their proximity to Seabrook from this arrangement gave

21 See United States v. Caputo, 808 F.2d 963, 968 (2d Cir. 1987) ("Where intent

to commit the crime charged is clearly at issue, evidence of prior similar acts may

be introduced to prove that intent.”).

22 Fed. R. Evid. 403.

23 See United States v. Roldan-Zapata, 916 F.2d 795, 804 (2d Cir. 1990) (finding

evidence of uncharged conduct not unfairly prejudicial in part because it "did not

involve conduct any more sensational or disturbing than the crimes with which

[the defendant] was charged”).13 19-1645-cr

them an opportunity to get close to Chief Banks (one of Seabrook's

friends and an unindicted co-conspirator in the charged scheme). In

Rechnitz's words, this arrangement would help them "get in with the

cops, get in with the politicians.”24 The evidence of this arrangement

therefore tended to prove their intent to "get in with the cops” in the

charged scheme, and was no more inflammatory than the facts of the

charged scheme. We accordingly find no abuse of discretion in its

admission.

3. Hamlet Peralta evidence

Turning to the evidence concerning the investments in Hamlet

Peralta's liquor business, we also find it properly admitted as relevant

to Reichberg's intent in the charged scheme. In this ploy, Reichberg

and Rechnitz recruited investors in the liquor business by

representing that the business was a good investment, but did not

reveal to the investors that in return Peralta was paying kickbacks to

Reichberg and Rechnitz. Put differently, just as in the charged

scheme, Reichberg was motivated by financial self-interest rather

than wanting to provide friends with an unreciprocated benefit.

Moreover, we can discern no unfair prejudice from this evidence in

large part because, in the end, Reichberg and Rechnitz ended up as

victims too. It turned out that Peralta's liquor business was actually

a Ponzi scheme, and Rechnitz's own investment in it was lost.

In sum, we find no error in the admission at trial of any of the

evidence Reichberg challenges on appeal.

24 App. at 3198.14 19-1645-cr

IV. Allegedly late document disclosure

Reichberg argues that the government belatedly disclosed

particular documents in violation of Federal Rule of Criminal

Procedure 16, and that the violation prejudiced his defense. We

disagree.

The documents at issue here were gun licensing applications

found in the work locker of David Villanueva, an NYPD gun licensing

officer who pled guilty to bribery and testified as a cooperating

witness for the government at trial. These documents became

relevant for impeachment purposes during Villanueva's crossexamination, when Grant's counsel asked Villanueva about whether

he had processed applications at the behest of an individual named

Ben Petroske. (Petroske was formerly Villanueva's commanding

officer in the gun licensing division, and allegedly took bribes to

expedite the processing and approval of select gun license

applications.) Villanueva denied giving special treatment to

applications sent to him by Petroske.

During the overnight break in Villanueva's cross-examination,

the government produced the gun license applications that had been

found in Villanueva's locker to defense counsel.25 The next day,

during Villanueva's continued cross, Grant's counsel asked

Villanueva whether any of the applicants were Petroske's customers.

25 The government had not previously produced these gun licensing

applications because none of them concerned Reichberg and it was not planning

to use them in its case-in-chief. See Fed. R. Crim. P. 16(a)(1)(E) (requiring the

government to produce documents within its possession if "(i) the item is material

to preparing the defense; (ii) the government intends to use the item in its case-inchief at trial; or (iii) the item was obtained from or belongs to the defendant”).15 19-1645-cr

Villanueva denied knowing whose applications had been in his locker

or whether any of the applicants were Petroske's customers, and he

denied working with Petroske as part of a bribery scheme.

We find no prejudice in the allegedly late disclosure of these

applications. Even if we assume that these documents should have

been disclosed earlier, the district court ably exercised its discretion

to cure any problem.26 The district court offered the defense the

opportunity to recall Villanueva later in the trial, so that the defense

would have more time to prepare for cross-examination with the

documents in mind. Neither defendant's counsel took the district

court up on that offer. We will not now find that the timing of the

document disclosure adversely affected Reichberg's trial strategy,

much less warrants reversal, when the defense itself saw no need to

question Villanueva further.27

V. Temporary admission of GX-300A

Reichberg claims that he suffered spillover prejudice when the

district court first admitted the GX-300A telephone call against Grant

and later struck GX-300A from the record. Reichberg "bears an

extremely heavy burden” in claiming spillover prejudice, needing to

26 See United States v. Miller, 116 F.3d 641, 681 (2d Cir. 1997) (noting that

"[w]hen the government has failed to comply with Rule 16, the district court has

broad discretion to determine what remedial action, if any, is appropriate,” and

that we review its determination on that score only for abuse of discretion).

27 See id. (noting that reversal due to a late Rule 16 disclosure "will only be

warranted if the nondisclosure results in substantial prejudice to the defendant,”

including "that the untimely disclosure of the statement adversely affected some

aspect of his trial strategy” (internal quotation marks and citations omitted)).16 19-1645-cr

show "prejudice so substantial as to amount to a miscarriage of

justice.”28 He cannot carry that burden here.

GX-300A is a recorded phone call between Grant and Alex

Lichtenstein, an individual who separately pled guilty to bribing

NYPD gun licensing division officers.29 On the recording, Grant and

Lichtenstein discuss a program that would permit individuals caught

driving with suspended licenses to receive a summons rather than be

arrested. Grant then states that, if the program is enacted, "all the

Jews better – better erect a statue for me. I should not – I shouldn't –

I should be able to walk in any Jewish facility and never have to

fuckin' pay for anything. Nah, I'm just jokin'.”30

After the government moved before trial to admit the call

against Grant, along with a host of other evidence about Grant and

Lichtenstein's bribery relationship, the district court expressed

concern that there could be spillover prejudice with respect to

Reichberg. Specifically, the district court contemplated that the

collection of evidence about Grant and Lichtenstein's relationship

would be akin to improper propensity evidence against Reichberg,

because it could lead the jury to "draw[] the inference that [because]

Mr. Grant accepted bribes from one member [Lichtenstein] of the

Jewish community in Brooklyn, . . . he must have accepted bribes from

28 United States v. Griffith, 284 F.3d 338, 351 (2d Cir. 2002) (quoting United

States v. Friedman, 854 F.2d 535, 563 (2d Cir. 1988)).

29 See Judgment, United States v. Lichtenstein, 16-cr-342 (SHS) (S.D.N.Y. Mar.

17, 2017), ECF No. 70.

30 Supp. App. at 37–38.17 19-1645-cr

another member of the community, namely, Mr. Reichberg.”31 The

district court ruled that some but not all evidence of Grant and

Lichtenstein's relationship could be admitted.

At trial, the district court admitted the GX-300A recording

along with a transcript of the call. Before the recording was played,

the district court gave a limiting instruction to the jury, advising that

the call could be "considered with respect to defendant Grant and

only defendant Grant.”32 Later in the trial, however, the district court

reversed course and instructed the jury that the call and transcript had

been stricken from the record and to "disregard [them] entirely.”33

Although admitting and then striking evidence is not ideal, we

can locate no prejudice to Reichberg from this sequence of events.

"[W]e presume that juries follow limiting instructions,” but that

presumption can be overcome "where there is an overwhelming

probability that the jury will be unable to follow the court's

instructions and the evidence is devastating to the defense.”34 Here,

to show spillover prejudice Reichberg would need to rebut two such

presumptions arising from the limiting instructions: (1) that the jury

initially considered the call only as to Grant, and not as to him; and

(2) that the jury later disregarded the call after being instructed to do

so. Reichberg can overcome neither presumption. Nothing in the

record suggests that the jury did not follow the limiting instructions.

31 Tr. of Pre-trial Conference, United States v. Reichberg, 16-cr-468 (GHW)

(S.D.N.Y. Apr. 23, 2018), ECF No. 216 at 14–15.

32 App. at 5928.

33 Id. at 6779–80.

34 United States v. Becker, 502 F.3d 122, 130 (2d Cir. 2007) (internal quotation

marks and citation omitted).18 19-1645-cr

Indeed, the jury acquitted Grant—the defendant most directly

prejudiced by GX-300A.

VI. Confrontation Clause

Reichberg argues that the admission at trial of a series of

statements Grant made to the FBI violated his rights under the Sixth

Amendment's Confrontation Clause. We review alleged violations of

the Confrontation Clause de novo,35 and find none here.

The Confrontation Clause provides that "[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to be confronted

with the witnesses against him.”36 As relevant to Reichberg's

argument, "a defendant is deprived of his rights under the

Confrontation Clause when his nontestifying codefendant's

confession naming him as a participant in the crime is introduced at

their joint trial, even if the jury is instructed to consider that

confession only against the codefendant.”37

Reichberg points to five statements made by Grant to an FBI

agent, who testified to them at trial, that he claims violated his

confrontation right: that (1) Grant was introduced to Reichberg in

2005 through NYPD Commanding Officer Steven McAllister (an

unindicted co-conspirator); (2) Grant was friends with Reichberg and

socialized with him approximately ten times during the time frame of

the charged conspiracy; (3) Grant never accepted anything of value

35 United States v. Jass, 569 F.3d 47, 55 (2d Cir. 2009).

36 U.S. CONST. amend. VI.

37 Richardson v. Marsh, 481 U.S. 200, 201–02 (1987) (describing the holding

of Bruton v. United States, 391 U.S. 123 (1968)).19 19-1645-cr

from Reichberg for free; (4) Grant knew taking anything of value from

Reichberg for free would get him in trouble with the NYPD; and

(5) Grant had purchased a set of diamond earrings from Reichberg,

but did not know if Reichberg gave him a discount on the jewelry.

None of the statements offends the Confrontation Clause

because none of them "standing alone, would clearly inculpate

[Reichberg] without the introduction of further independent

evidence.”38 The statements, some of which appear to be exculpatory,

would need to be placed in a mosaic of other inculpatory evidence to

tend to inculpate Reichberg.

Moreover, the jury was given an immediate limiting instruction

that the agent's testimony as to Grant's statements could be

considered only against Grant, and not Reichberg. Such limiting

instructions generally eliminate any confrontation problem arising

from a nontestifying co-defendant's statement "unless the admitted

evidence is clearly inculpatory as to the complaining co-defendant

and is vitally important to the government's case.”39 As discussed,

none of the complained-of statements was clearly inculpatory as to

Reichberg, nor was any vitally important in the context of this eightweek trial.

38 United States v. Delgado, 971 F.3d 144, 155 (2d Cir. 2020) (internal

quotation marks, alteration, and citation omitted).

39 United States v. Rubio, 709 F.2d 146, 155 (2d Cir. 1983) (internal quotation

marks and citation omitted).20 19-1645-cr

VII. Excluded defense experts

Reichberg argues that the district court erred by excluding the

testimony of two of his proposed expert witnesses at trial. We review

this evidentiary ruling for abuse of discretion,40 and we find none

here.

On October 23, 2018, mere weeks before the start of trial, the

defendants provided notice of their intent to call two expert

witnesses: Robert Thursland, a former NYPD Inspector, and Rabbi

Edgar Gluck. In its disclosure, defense counsel stated that Thursland

was planning to testify about NYPD procedures on "providing police

escorts, allowing access to parades and other free events, as well as

other community policing practices.”41 Gluck would testify "about

the relationship between the NYPD and the Jewish community,

including the day-to-day security-related, religious, and cultural

concerns that are specific to this particular community.”42

The district court found the disclosures wanting under Federal

Rule of Criminal Procedure 16, which requires that the defense

provide the government with its expert's "opinions, the bases and

reasons for those opinions, and the witness's qualifications.”43 The

district court gave defense counsel repeated opportunities to

supplement its disclosures. After defense counsel declined to take

advantage of those opportunities, the district court precluded these

40 United States v. Felder, 993 F.3d 57, 71 (2d Cir. 2021).

41 Supp. App. at 34.

42 Id. at 35.

43 Fed. R. Crim. P. 16(b)(1)(C).21 19-1645-cr

experts from testifying. Given the multiple chances the district court

afforded the defense to fix its Rule 16 disclosures, and our agreement

with the district court that the disclosures were deficient, we will not

find an abuse of discretion in the resulting exclusion of these

experts.44

VIII. Attorney's potential conflict of interest

Reichberg asserts for the first time on appeal that the district

court should have investigated whether one of his attorneys had a

conflict of interest. We review this unpreserved objection for plain

error,45 and we find none.

One of Reichberg's attorneys at trial, Susan Necheles, also

"helped” the defense team at the related trial of Murray Huberfeld,

the hedge fund manager to whom Reichberg directed investments in

exchange for kickbacks. Necheles's involvement in Huberfeld's trial

was minimal—she did not enter an appearance on Huberfeld's behalf,

and she told the district court in this case that she "never reviewed all

of the discovery material [in the Huberfeld case]. I do not know what

is in all the discovery material.”46

It is hardly "clear or obvious” to us, as it must be on plain error

review, that the district court should have inquired further into

44 See Felder, 993 F.3d at 74 (noting a "district court's broad discretion in

fashioning a remedy for Rule 16 failures, which may include . . . ordering the

exclusion of evidence” (internal quotation marks and citation omitted)).

45 United States v. Cohan, 798 F.3d 84, 88 (2d Cir. 2015).

46 Tr. of Pre-trial Conference, United States v. Reichberg, No. 16-cr-468

(GHW) (S.D.N.Y. Mar. 12, 2018), ECF No. 140 at 31.22 19-1645-cr

Necheles's involvement in the Huberfeld case.47 A district court must

inquire further "when [it] knows or reasonably should know that a

particular conflict exists,” but it is "not . . . under a duty to inquire

whenever, as a result of creative speculation, one could imagine a

situation in which a conflict may have arisen.”48 The district court

here would have had to engage in such creative speculation to

envision a conflict; Huberfeld and Reichberg's interests were by all

accounts aligned, with both contesting their bribery charges to trial.

Moreover, Reichberg cannot demonstrate that the district court's

failure to inquire further into Necheles's alleged conflict "affected the

outcome of the district court proceedings.”49

IX. Jury instructions

Reichberg argues that the jury instructions were erroneous in

two ways: (1) the district court failed to instruct the jury that it must

find an "agreement” to convict on the honest services charge; and

(2) the district court should not have instructed the jury that it could

convict under the "as opportunities arise” theory of bribery, which

Reichberg argues is no longer valid in the wake of McDonnell v. United

States.50

47 See Cohan, 798 F.3d at 88 (quoting United States v. Marcus, 560 U.S. 258,

262 (2010)).

48 United States v. Velez, 354 F.3d 190, 197–98 (2d Cir. 2004) (internal

quotation marks and citation omitted).

49 Cohan, 798 F.3d at 88 (quoting Marcus, 560 U.S. at 262).

50 136 S. Ct. 2355 (2016).23 19-1645-cr

We review jury instructions de novo, finding error if the charge

"either fails to adequately inform the jury of the law, or misleads the

jury as to a correct legal standard.”51 We find no error here.

1. Agreement

The district court instructed the jury that the government did

"not have to prove that there was an express or explicit agreement

that the public official would perform official acts in exchange for the

bribe,” but rather had "to prove there was at least an implicit

agreement that [the official] would perform official acts in exchange

for the bribe.”52 The district court further explained that the

government did "not have to prove an express or explicit agreement

at the time of payment that any particular official action would be

taken.”53 Instead, "[i]t is sufficient if the defendant . . . understood

that the public official was expected, as a result of the payment to . . .

exercise particular kinds of influence as specific opportunities

arose.”54

Reichberg asserts that these instructions erroneously failed to

require sufficient proof of an agreement, but we disagree. The

instructions here actually required the government to prove more

than is necessary under our precedent, charging the jury that it must

find the presence of "at least an implicit agreement that [the official]

would perform official acts in exchange for the bribe” (emphasis

51 United States v. Silver, 948 F.3d 538, 547 (2d Cir. 2020) (internal quotation

marks and citation omitted), cert. denied, 141 S. Ct. 656 (2021).

52 App. at 7213.

53 Id. at 7214.

54 Id.24 19-1645-cr

added). In fact, so long as the parties to the bribe share "an

understanding that the payments were made in return for official

action, . . . it is not necessary that the public official in fact intend to

perform the contemplated official act.”55

2. "As opportunities arise”

When the government proceeds under the "as opportunities

arise” theory of bribery, it must prove "that a public official received

a payment to which he was not entitled” and that, "at the time of the

payment,” the payor and payee "understood that [the payee] was

expected as a result of the payment to exercise particular kinds of

influence . . . as specific opportunities arise.”56 Reichberg argues that

this theory of bribery is no longer valid after McDonnell, but he is

incorrect.

We made clear, after Reichberg took this appeal, that the "as

opportunities arise” theory of bribery remains good law following

McDonnell. As relevant here, McDonnell held that the official act

expected to be taken by a bribed public official must be "a decision or

action on a question, matter, cause, suit, proceeding or controversy”

that "involve[s] a formal exercise of governmental power” and must

concern "something specific and focused that is pending or may by

law be brought before a public official.”57 Although this "raised the

question of whether the action to be taken in the future by a public

55 Silver, 948 F.3d at 551 (internal quotation marks, alterations, and citations

omitted).

56 Skelos, 988 F.3d at 655 (internal quotation marks, alterations, and citation

omitted).

57 McDonnell, 136 S. Ct. at 2371–72 (internal quotation marks omitted).25 19-1645-cr

official under the 'as opportunities arise' theory of bribery is

compatible with the heightened specificity of 'official act' required by

McDonnell,”58 we have since answered that question in the

affirmative.59

Additionally, the particular instructions given in this case on

the "as opportunities arise” theory were appropriate. The district

court charged the jury:

The government . . . need not prove an

explicit promise to perform a particular act

was made at the time of the payment. In

other words, the government does not need

to show a direct link between a benefit

received and a specifically identified official

act. Rather, it is sufficient if [the official]

understood he was expected as a result of

the payment to exercise particular kinds of

acts or influence on behalf of the payor on

an "as needed” basis or as specific

opportunities arose.60

By requiring the jury to find that the official "understood he

was expected as a result of the payment to exercise particular kinds

of acts or influence,” this instruction successfully required the jury to

find that the official action was to be taken on a "specific and focused

question or matter.”61 We previously stated that "instructions

58 Skelos, 988 F.3d at 655–56.

59 Silver, 948 F.3d at 552.

60 App. at 7214.

61 Silver, 948 F.3d at 568 (emphasis omitted).26 19-1645-cr

requiring the jury to find that the official understood that he or she

was expected to exercise particular kinds of influence would not be in

error after McDonnell” because "[t]he phrase 'particular kinds of

influence' connotes that the official action must relate to a sufficiently

particular, focused, or concrete question or matter.”62 Even though

the wording of the instructions here differs from what we

recommended in Silver,63 it does not "le[ave] open the possibility that

the jury could convict even if [the official] was expected to take official

action on any question or matter in return for the payment.”64

Accordingly, although these jury instructions were given without the

benefit of Silver's guidance, they were not erroneous.

X. Sufficiency of the evidence

Finally, Reichberg challenges the sufficiency of the evidence on

all counts of conviction. We review the sufficiency of evidence de

novo, but in doing so "view the evidence in the light most favorable

to the government, crediting every inference that could have been

drawn in the government's favor, and deferring to the jury's

62 Id. at 568 n.19 (emphasis in original).

63 Id. at 568 ("The jury should have been instructed that, to convict on

honest services fraud, the Government must prove that, at the time the bribe was

accepted, [the official] promised to take official action on a specific and focused

question or matter as the opportunities to take such action arose.” (emphasis in

original)).

64 Skelos, 988 F.3d at 656 (emphasis in original) (finding erroneous

"instructions requir[ing] only that [the official] be expected to 'perform official acts

in exchange for the property'”); see also Silver, 948 F.3d at 568–69 (faulting

instructions requiring the jury to find that the official "was 'expected to exercise

official influence or take official action for the benefit of the payor'” for permitting

the quid pro quo to be "too open-ended” (emphasis omitted)).27 19-1645-cr

assessment of witness credibility and its assessment of the weight of

the evidence.”65 Reichberg "bears a heavy burden” to overcome this

"exceedingly deferential” standard of review.66 "[W]e will uphold

the judgments of conviction if 'any rational trier of fact could have

found the essential elements of the crime beyond a reasonable

doubt.'”67 Reichberg cannot bear his burden, for the reasons that

follow.

1. Bribery counts

Reichberg argues there was insufficient evidence to support his

conviction on the bribery counts68 because the evidence does not

establish that the bribed officers took "official action,” and, even if

they did take official action, the evidence does not support the

required link between that official action and the bribe payment that

prompted it. We disagree.

The official acts the government relied upon are all proper

"official acts” under the standard set forth in McDonnell,69 upon

65 United States v. Coplan, 703 F.3d 46, 62 (2d Cir. 2012) (internal quotation

marks omitted).

66 Id. (internal quotation marks omitted).

67 Id. (emphasis in original) (quoting Jackson v. Virginia, 443 U.S. 307, 319

(1979)).

68 Honest services wire fraud, 18 U.S.C. §§ 1343, 1346 and 2; conspiracy to

commit honest services wire fraud, 18 U.S.C. §§ 1343, 1346, 1349; and conspiracy

to pay bribes and gratuities, 18 U.S.C. § 371.

69 McDonnell, 136 S. Ct. at 2371–72 ("[A]n official act is a decision or action

on a question, matter, cause, suit, proceeding or controversy” that "involve[s] a

formal exercise of governmental power” and concerns "something specific and 28 19-1645-cr

which the jury was adequately instructed. The government alleged

the following official acts: (1) approving a gun license application; (2)

promoting or transferring a police officer; (3) making an arrest, and

then making a decision about whether to issue a desk appearance

ticket to the arrestee; (4) authorizing the use of a police helicopter for

a particular occasion; (5) authorizing the use of a police boat for a

particular occasion; and (6) deploying a police escort for a private

citizen or transporting a private citizen in a police car. All of these are

the sort of specific, formal exercises of government power that can

constitute official acts.70

The evidence was also sufficient to support the jury's

conclusion that the benefits Reichberg provided were linked to the

bribed officials' exercise of particular kinds of influence in return. At

trial, Rechnitz testified that the pair provided benefits to officers

expecting to get police action in return, in the form of "results,” not

merely "access.”71 The combination of that testimony with the timing

of the circumstantial evidence provided a reasonable basis for the jury

to infer that particular benefits were linked to particular official

actions. For example, after Reichberg paid for Grant's home

improvements in June 2014, Grant pressured other officers to approve

Reichberg's gun license application in subsequent months. Banks

focused that is pending or may by law be brought before a public official.”

(internal quotation marks omitted)).

70 See, e.g., id. at 2370 (allocation of government resources); United States v.

Boyland, 862 F.3d 279, 291 (2d Cir. 2017) (licenses and permits); United States v.

Fattah, 914 F.3d 112, 156 (3d Cir. 2019) (hiring government employee); United States

v. Lee, 919 F.3d 340, 357 (6th Cir. 2019) (decision about whether to bring charges),

cert. denied, 140 S. Ct. 895 (2020).

71 App. at 3360.29 19-1645-cr

secured Grant's promotion to a position that would benefit Reichberg

shortly after Reichberg had paid for Banks to travel to Israel. And at

a time when Reichberg and Rechnitz were steering about $60,000 in

business to Harrington's security company, Harrington arranged for

the men to benefit from police helicopters, boats, and vehicles.

Moreover, Grant complained explicitly to Reichberg that he felt he

had not received a good enough perk in exchange for processing a

particular gun license application—a complaint that was captured on

a recorded phone call admitted into evidence at trial.

Reichberg's efforts on behalf of one individual in particular

leave us with no doubt that this jury's verdict was reasonable and

supported by the evidence. Eddie Sankari was arrested three times

by the NYPD, and each time, Reichberg managed to secure his release

from custody on the same day. The first arrest-and-release was on

February 16, 2014. Reichberg texted Grant "Eddie Sankari” and

"78pct,” and one minute later Grant turned around and called the

78th Precinct, where Sankari was being held, setting in motion

Sankari's release.72 Grant took this action shortly after Reichberg and

Rechnitz had shown up at Grant's house dressed as elves on

Christmas with a pile of gifts for Grant and his family.

Sankari's second arrest-and-release was on October 28, 2015.

Reichberg got in touch with McAllister, another high-ranking NYPD

contact, who asked Reichberg who he was "looking to get out.”73

Reichberg told McAllister it was Sankari, "the floor guy from

Brooklyn,” to which McAllister responded, "What kind of floors?”

72 Supp. App. at 61.

73 Id. at 65.30 19-1645-cr

and "Did we make any headway on the [wrist]watch?”74 Reichberg

told McAllister that Sankari provided carpeting services and, about

the watch, that Reichberg's "guy is trying to locate one for a good

price, he asked if we can wait until the watch show.”75 In response,

McAllister said that Sankari would be released that night.

Sankari's third arrest-and-release was on December 16, 2015.

McAllister indicated hesitancy about releasing him this time around,

asking, "Who is this guy we are trying to get out? He was arrested

for same thing not to [sic] long ago, maybe he needs night in jail.”76

But when Reichberg reminded McAllister that Sankari was the

"carpet guy,”77 McAllister's misgivings evaporated. McAllister told

Reichberg that Sankari "owes you big”78 and added, by text message,

"Need new carpet for Summer house. Lol.”79 Later that night, as

Sankari was being released, McAllister provided Reichberg with the

number of bedrooms and square footage he wanted to have carpeted.

In view of this collection of evidence, we have no difficulty

finding the jury's verdict to be supported by sufficient evidence and

affirming the bribery count convictions.

2. Obstruction of justice

74 Id.

75 Id.

76 Id. at 68.

77 Id.

78 Id. at 69.

79 Id.31 19-1645-cr

Reichberg also argues that the evidence was insufficient to

support his conviction for obstruction of justice, but we again

disagree. The evidence at trial demonstrated that when Reichberg

became aware he was under investigation, he invited his brother to

his house and turned over multiple cell phones and business cards to

his brother. On appeal, Reichberg's principal contention is that the

evidence did not support his intent to obstruct justice because there

were other electronic devices remaining at his house for the FBI to

find that he did not give to his brother. We think the jury was

nonetheless entitled to conclude that Reichberg intended to conceal

the devices he did give to his brother.80 That Reichberg's efforts to

obstruct justice were incomplete does not invalidate the conviction

based on the completed acts.

For the foregoing reasons, we AFFIRM the judgment of conviction.