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United States v. Rosen

United States Court of Appeals, Second Circuit

May 29, 2013

UNITED STATES OF AMERICA, Appellee,
v.
DAVID ROSEN, Defendant-Appellant, CARL KRUGER, RICHARD LIPSKY, AARON MALINSKY, MICHAEL TURANO, SOLOMON KALISH, ROBERT AQUINO, WILLIAM BOYLAND, JR., Defendants.

Argued: November 28, 2012

Defendant-appellant David Rosen appeals from a judgment of the United States District Court for the Southern District of New York (Rakoff, J.). Rosen was convicted of honest services mail and wire fraud and conspiracy to commit bribery for paying sham consulting fees to current and former members of the New York State Assembly, and for agreeing to award business to a third-party company in which a former New York State Senator had a financial interest, all in order to obtain a commitment from these State legislators to perform unspecified official acts as the opportunities arose. Rosen contends that the Government's "as opportunities arise" theory of quid pro quo bribery is unconstitutionally vague as applied to his conduct, that the evidence was insufficient to prove the corrupt intent element of the offenses, and that the District Court erred when it denied his motion to compel the Government to provide defense witness immunity to his former counsel. We AFFIRM.

Elkan Abramowitz (James R. Stovall, Morvillo, Abramowitz, Grand, Iason, Anello & Bohrer, P.C., New York, NY; E. Scott Morvillo, Ellen M. Murphy, and Robert C. Morvillo, Morvillo LLP, New York, NY, on the brief), Morvillo, Abramowitz, Grand, Iason, Anello & Bohrer, P.C., New York, NY, for Defendant-Appellant.

Michael Bosworth, Assistant United States Attorney (Glen G. McGorty and Katherine Polk Failla, Assistant United States Attorneys, Preet Bharara, United States Attorney for the Southern District of New York, on the brief), New York, NY, for Appellee.

Before: SACK, CHIN, and LOHIER, Circuit Judges.

LOHIER, Circuit Judge.

The corruption of elected officials undermines public confidence in our democratic institutions. The Government has a wide berth to combat it. One of the Government's more recent public corruption targets was David Rosen, the former Chief Executive Officer of MediSys Health Network ("MediSys") and its associated hospitals, whom the Government charged with participating in bribery schemes involving three New York State legislators: former Assemblyman Anthony Seminerio, Assemblyman William Boyland, Jr., and former Senator Carl Kruger. Rosen was convicted, after a bench trial in the United States District Court for the Southern District of New York (Rakoff, J.), of honest services mail and wire fraud and honest services fraud conspiracy, in violation of 18 U.S.C. §§ 1341, 1343, and 1346, as well as conspiracy to commit bribery and violate the Travel Act, in violation of 18 U.S.C. § 371. At trial, there was evidence that Rosen bribed the three legislators in exchange for their commitment to perform official acts "as specific opportunities arose" within the New York State legislature and State agencies.

On appeal, Rosen makes three principal arguments. First, he disputes the Government's "as opportunities arise" theory of prosecution: he contends that his conduct was not criminal and that the federal bribery and honest services fraud statutes are unconstitutionally vague as applied to his conduct. Second, he asserts that the trial evidence against him was insufficient to show beyond a reasonable doubt that he acted with any corrupt intent. Third, he challenges the District Court's refusal to compel the Government to immunize a potential defense witness. We reject all three arguments and affirm the judgment of the District Court.

BACKGROUND

Because Rosen appeals from a judgment of conviction following trial, we view the facts, which are drawn from the trial evidence, in the light most favorable to the Government. See United States v. Pica, 692 F.3d 79, 81 (2d Cir. 2012).

1. David Rosen

Rosen was the CEO of MediSys, a not-for-profit company that managed several "safety-net" hospitals in the New York City area, and of three New York-based hospitals in the MediSys network: Jamaica Hospital Medical Center and Flushing Hospital Medical Center in Queens, and Brookdale University Hospital and Medical Center ("Brookdale Hospital") in Brooklyn. Because the MediSys hospitals served primarily underinsured and indigent patients, they depended significantly on funding from New York State and on New York's Medicaid reimbursement rates. The MediSys network likewise depended on State support to acquire other hospitals. Rosen actively promoted MediSys with State officials, lobbying New York State and its agencies to advance MediSys's interests.

2. Anthony Seminerio

Anthony Seminerio served as an Assemblyman for New York State's 31st Assembly District from 1979 through 1992, and as an Assemblyman for the 38th Assembly District from 1993 through 2009, when he resigned. As an Assemblyman, Seminerio supported Jamaica Hospital by securing State financial assistance for the hospital. For example, in 1985 Seminerio sponsored legislation that created a capital financing program through which Jamaica Hospital obtained over $100 million to construct a new facility.

In the late 1990s, pursuant to two self-described "consulting" contracts, MediSys hired MARC Consultants ("MARC"), a consulting company founded and controlled by Seminerio. At Rosen's request, MediSys entered the first contract with MARC in 1998; the contract provided that Neighborhood Health Providers ("NHP"), a managed care entity partially owned by MediSys, would hire MARC for a monthly fee of $1, 500. During the contract negotiations, George Kalkines, a partner at MediSys's outside general counsel, Kalkines Arky Zall & Bernstein, falsely told NHP's CEO that the consulting agreement had been or soon would be reviewed by New York State's Legislative Ethics Committee (the "LEC"). The second contract, signed by David Rosen on behalf of Jamaica Hospital and by MARC in April 1999, was essentially identical to the NHP-MARC contract but required higher monthly payments of $3, 333.33 to MARC. Ultimately, from 1999 to 2008, MediSys paid MARC over $410, 000 in fees under both contracts. While the contracts required MARC to provide "assistance with respect to marketing, public relations and contractual relationships, " including "appearing before or meeting with governmental agencies or units and private parties, " each contract also explicitly prohibited MARC from providing "any consulting services in respect of any unit or agency of the State of New York, including the state legislature."

As the District Court observed, "[t]hese contracts, on their face, were not necessarily unlawful." Indeed, after April 1999, Seminerio appears to have provided some appropriate assistance to MediSys under the contracts. For example, using his relationships in the private sector and in the local and federal governments, Seminerio petitioned the New York City Fire Department to expand the number of ambulance districts that MediSys hospitals could cover, facilitated MediSys's application to the United States Department of Housing and Urban Development for mortgage financing, and notified MediSys when various properties in which it might be interested became available for purchase.

However, Seminerio also violated the contracts' prohibition against lobbying State entities by directly exploiting his official position and assisting MediSys before the State legislature and various State agencies. In March 1999, for example, Seminerio wrote a letter on State Assembly letterhead stationery to the New York State Senate Majority Leader asking him to restore millions of dollars in funding to the hospital indigent care pool, an important source of funding for Jamaica Hospital. In 2006 Seminerio co-sponsored legislation in the Assembly specifically to allow Jamaica Hospital to restructure its debt so that MediSys could acquire more hospitals. In addition, Seminerio lobbied the Speaker of the Assembly regarding MediSys's participation in a long-term managed care program, and set up a meeting between Rosen and the Governor's chief of staff to discuss debt relief for certain MediSys hospitals. In 2008 Seminerio submitted a $100, 000 funding letter request for the MediSys hospitals, sought approval for MediSys to acquire two financially ailing hospitals, and urged the Speaker of the Assembly to reject budget cuts that would have disadvantaged the MediSys hospitals.

At every relevant turn, Rosen concealed MediSys's consulting arrangements with Seminerio. He did not tell Joann Ariola, MediSys's Director of Intergovernmental Affairs, that Seminerio had been hired as a consultant, even though Ariola served as a "liaison with government officials . . . and quasi-government agencies" for MediSys. He failed to tell MediSys's Board of Directors about the NHP-MARC contract. Nor did Rosen disclose the existence of either contract on disclosure forms that MediSys was required to complete in order to be eligible to enter into contracts with New York City and New York State. New York City's Vendor Information Exchange System ("VENDEX") questionnaire explicitly asked, "Are there any individuals now serving in a managerial or consulting capacity . . . who now serve, or within the past five (5) years have served as . . . an elected or appointed official or officer?" Rosen falsely answered "no" to that question on the VENDEX questionnaire that he completed on behalf of Jamaica Hospital in ...


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