PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
              _______________

                  No. 17-1817
                _______________

         UNITED STATES OF AMERICA

                        v.

           WILLIAM E. BARONI, JR.,
                             Appellant
              _______________

                  No. 17-1818
                _______________

         UNITED STATES OF AMERICA

                        v.

            BRIDGET ANNE KELLY,
                              Appellant
               _______________

   On Appeal from the United States District Court
             for the District of New Jersey
(D.C. Nos. 2-15-cr-00193-001 and 2-15-cr-00193-002)
    District Judge: Honorable Susan D. Wigenton
                   _______________
                   Argued: April 24, 2018

    Before: AMBRO, SCIRICA, and SILER, JR., Circuit
                       Judges.

            (Opinion Filed: November 27, 2018)

Syed Y. Latifi
Matthew J. Letten
Michael A. Levy   [ARGUED]
Michael D. Mann
Nicholas M. McLean
Sidley Austin LLP
787 Seventh Avenue
New York, NY 10019

      Counsel for Appellant Baroni

Henry W. Asbill
BuckleySandler
1250 24th Street, N.W.
Suite 700
Washington, DC 20037

Jacob M. Roth       [ARGUED]
Charlotte H. Taylor
Jones Day
51 Louisiana Avenue N.W.
Washington, DC 20001


 Honorable Eugene E. Siler, Jr., United States Court of
Appeals for the Sixth Circuit, sitting by designation.




                              2
Michael D. Critchley
Critchley, Kinum & Denoia, LLC
75 Livingston Avenue
3rd Floor
Roseland, NJ 07068

      Counsel for Appellant Kelly

Mark E. Coyne
Bruce P. Keller      [ARGUED]
Office of the United States Attorney
970 Broad Street
Room 700
Newark, NJ 07102

      Counsel for Appellee


                     _______________

                OPINION OF THE COURT
                    _______________

SCIRICA, Circuit Judge

        Defendants William E. Baroni, Jr. and Bridget Anne
Kelly engaged in a scheme to impose crippling gridlock on the
Borough of Fort Lee, New Jersey, after Fort Lee’s mayor
refused to endorse the 2013 reelection bid of then-Governor
Chris Christie. To this end, under the guise of conducting a
“traffic study,” Baroni and Kelly, among others, conspired to
limit Fort Lee motorists’ access to the George Washington




                              3
Bridge—the world’s busiest bridge—over four days in early
September 2013: the first week of Fort Lee’s school year. This
scheme caused vehicles to back up into the Borough, creating
intense traffic jams. Extensive media coverage ensued, and the
scandal became known as “Bridgegate.”

       In 2015, a grand jury indicted Baroni and Kelly for their
role in the scheme. Each Defendant was charged with seven
counts: conspiracy to obtain by fraud, knowingly convert, or
intentionally misapply property of an organization receiving
federal benefits, 18 U.S.C. § 371, and the substantive offense,

conspiracy to commit wire fraud, 

and two counts of the substantive offense, 

and conspiracy against civil rights, 

and the
substantive offense, 

A jury convicted Defendants on
all counts. They appeal only their judgments of conviction.

       For reasons that follow, we will affirm Defendants’
judgments of convictions on the wire fraud and Section 666
counts but will reverse and vacate their civil rights convictions.

                               I.1

      In 2010, then-New Jersey Governor Chris Christie
appointed Baroni to serve as Deputy Executive Director of the

1
  Because Defendants were convicted at trial and raise
sufficiency challenges, “we review the evidence in the light
most favorable to the government.” United States v. Hodge,

, 204 (3d Cir. 2017). The facts of this case are not
materially in dispute.




                                4
Port Authority of New York and New Jersey. That same year,
David Wildstein—a cooperating witness in this case2—was
hired to serve as the Port Authority’s Director of Interstate
Capital Projects, in which capacity he functioned as Baroni’s
chief of staff.

       Among its many functions, the Port Authority operates
the George Washington Bridge, a double-decked suspension
bridge connecting the Borough of Fort Lee, New Jersey, and
New York City across the Hudson River. On the bridge’s
upper deck, twelve toll lanes carry traffic from New Jersey into
New York. During the morning rush hour, Port Authority
police place traffic cones to reserve the three right-most
lanes—the “Special Access Lanes”—for local traffic from Fort
Lee. This leaves the other nine lanes for drivers on the “Main
Line,” which includes traffic from I-80 and I-95. This practice
of reserving Special Access Lanes was a decades-long custom
dating back to a political deal between a former New Jersey
governor and Fort Lee mayor.

        Wildstein testified he first became aware of the Special
Access Lanes in March 2011. He learned the three lanes were
given to Fort Lee by a former New Jersey governor to reduce
local traffic and “immediately thought that this would be . . . a
potential leverage point with [Fort Lee] Mayor [Mark]
Sokolich down the road.” Joint App’x (J.A.) 1596. Wildstein

2
  Pursuant to a cooperation plea agreement, Wildstein pled
guilty on May 1, 2015, to an Information charging him with
one count of conspiracy to obtain by fraud, knowingly convert,
and intentionally misapply property of an organization
receiving federal benefits, 18 U.S.C. § 371, and one count of
conspiracy against civil rights, 

                               5
shared this observation with Baroni, Governor Christie’s then-
Chief of Staff Bill Stepien, and Kelly, then the Deputy Chief
of Staff for New Jersey’s Office of Intergovernmental Affairs
(IGA). Wildstein did not, however, use the Special Access
Lanes as leverage at that time.

        Around the same time that Wildstein realized the
Special Access Lanes could be used as leverage, IGA
officials—including Kelly—were discussing a plan to solicit
endorsements from Democratic elected officials to generate
bipartisan support for Governor Christie’s 2013 re-election
bid. IGA officials rewarded potential endorsers with, among
other things, “Mayor’s Days” (meetings with top departmental
and agency staff) and invitations to sporting events, breakfasts
and parties at Drumthwacket (the Governor’s Princeton
residence), and the Governor’s State of the State address.

       The Governor’s Office and IGA used the Port Authority
similarly to bestow political favors on potential endorsers. As
Wildstein explained at trial, the Port Authority “was viewed as
the economic engine of the region” and “had an ability to do
things for Democratic officials that would potentially put the
Governor in a more favorable position.” J.A. 1522–23. Baroni
and Wildstein were thus asked “to assist the Governor’s Office
in identifying opportunities that would be helpful.” J.A. 1523.
The Port Authority gave benefits ranging from gifts (e.g., steel
from the original World Trade Center towers, flags that had
flown over Ground Zero, framed prints) and tours, to jobs, to
large economic investments (e.g., the $250 million purchase of
the Military Ocean Terminal at Bayonne).

       One Democratic endorsement sought by the Governor’s
Office was that of Mayor Sokolich. IGA invited Sokolich to a




                               6
New York Giants game, several holiday parties, and one of
Governor Christie’s budget addresses. And, as early as 2010,
the Governor’s Office and IGA directed Wildstein to leverage
the Port Authority’s resources to obtain Sokolich’s
endorsement. Sokolich received benefits ranging from the sort
of gifts described above to substantial Port Authority
assistance for Fort Lee (e.g., Port Authority Police assistance
directing traffic in Fort Lee, a $5,000 contribution to the Fort
Lee fire department for an equipment purchase, and over
$300,000 in funding for four shuttle buses providing Fort Lee
residents with free transport between ferry and bus terminals).
Despite that, Sokolich informed IGA in 2013 that local
political considerations precluded him from endorsing the
Governor’s reelection bid.

        In June 2013, Kelly told Wildstein that she was
disappointed Sokolich would not be endorsing Governor
Christie, and Wildstein reminded her “if she want[ed] the Port
Authority to close down those Fort Lee lanes to put some
pressure on Mayor Sokolich, that that c[ould] be done.” J.A.
1605. On August 13, 2013, Kelly sent an email to Wildstein
that read: “Time for some traffic problems in Fort Lee.”
Supplemental App’x (S.A.) 42. Wildstein “understood that to
mean it was time to change the lane configurations, the upper
level of the George Washington Bridge in order to create traffic
in the Borough of Fort Lee.” J.A. 1612. Wildstein testified
that, on a follow up telephone call, Kelly told him that “Mayor
Sokolich needed to fully understand that life would be more
difficult for him in the second Christie term than it had been
[i]n the first.” J.A. 1620. Wildstein admitted at trial that he
agreed to change the lane configuration “[f]or the purpose of
causing—of punishing Mark Sokolich, of creating a traffic jam




                               7
that would punish him, send him a message,” and that there
was no other reason for the change. J.A. 1621.

       Wildstein testified he told Baroni he “received an email
from Miss Kelly that [he] viewed as instructing [him] to begin
to put leverage on Mayor Sokolich by doing a lane closure.”
J.A. 1618. He also testified he told Baroni “that Miss Kelly
wanted the Fort Lee lanes closed . . . [f]or the purpose of
punishing Mayor Sokolich . . . [b]ecause he had not endorsed
Governor Christie” and that “Mr. Baroni was fine with that.”
J.A. 1623.

       According to Wildstein, he decided “to create the cover
of a traffic study” and shared his plan with both Baroni and
Kelly. J.A. 1624. Wildstein believed “calling it a traffic study
would provide a cover story for the true purpose of changing
and realigning that traffic pattern at the bridge” and “to have a
public policy reason for doing so as opposed to saying it was
political and it was punitive and revealing the true purpose.”3

3
  Baroni’s position at trial and on appeal has been that “[a]t no
point did Wildstein tell [him] that the purpose of realigning the
lanes was political payback rather than to conduct a legitimate
traffic study.” Baroni Br. at 14 n.4. While “Baroni
acknowledges that Wildstein’s testimony alone is legally
sufficient to permit a jury to conclude otherwise,” he contends
“Wildstein committed perjury at trial.” 

discount
Wildstein’s testimony—which the jury evidently credited—
“for it is the exclusive province of the jury . . . to decide what
facts are proved by competent evidence,” and “also their
province to judge . . . the credibility of the witnesses . . . and
the weight of their testimony.” Ewing’s Lessee v. Burnet, 36




                                8
J.A. 1632. In furtherance of Defendants’ traffic study cover
story, Wildstein contacted Peter Zipf, the Port Authority’s
chief traffic engineer, and told him he wanted to take away the
cones that created the Special Access Lanes “so that New
Jersey could determine whether those three lanes given to Fort
Lee would continue on a permanent basis.” J.A. 1657–58.
Zipf responded later that day with various proposals but
recommended that at least one segregated lane be left in place
to prevent sideswipe crashes.

        According to Wildstein, he and Baroni discussed when
to implement the lane closure at the end of August 2013, and
they selected Monday, September 9, 2013—the first day of
school in Fort Lee. But Wildstein waited to give the instruction
until Friday, September 6. He testified “[i]t was a deliberate
effort on [his] part to wait until the last minute to give a final


U.S. (11 Pet.) 41, 50–51 (1837); United States v. Caraballo-
Rodriguez, 

, 430 (3d Cir. 2013) (en banc) (“[W]e
‘must be ever vigilant . . . not to usurp the role of the jury by
weighing credibility and assigning weight to the evidence, or
by substituting [our] judgment for that of the jury.’” (quoting
United States v. Brodie, 

, 133 (3d Cir. 2005))
(omission and second alteration in original)). But we observe
that, in fashioning Baroni’s sentence, the District Judge applied
a Guidelines enhancement for obstruction of justice, see
U.S.S.G. § 3C1.1, in part because she found Baroni attempted
“to mislead the jury in this case regarding [his] role in this
conspiracy.” J.A. 5678. The trial judge concluded Baroni
committed perjury at trial when he “continued to maintain the
traffic study was legitimate when [he] clearly knew . . . that it
was not.” 

reasons, Kelly also received this
enhancement.




                                9
instruction so that nobody at the Port Authority would let Fort
Lee know, would communicate that to Fort Lee or anyone else
within the Port Authority,” including Executive Director
Patrick Foye. J.A. 1684. According to Wildstein, he discussed
waiting to give the instruction with both Baroni and Kelly, who
agreed. This directly contravened normal Port Authority
protocol, with any lane closures announced to the public
weeks, and even months, in advance.

        Wildstein gave the instruction to Zipf and two other Port
Authority managers, Bob Durando (the general manager of the
George Washington Bridge) and Cedric Fulton (the director of
Tunnels, Bridges & Terminals), again claiming that New
Jersey wanted to see whether the Special Access Lanes would
remain permanent. When Fulton asked if Foye knew,
Wildstein lied and said he did. Wildstein later told the same
lie to Durando.

        Durando explained that because only one Special
Access Lane would remain open, the Port Authority needed to
pay an extra toll collector to be on relief duty for that sole toll
collector. Wildstein discussed this with Baroni and Kelly, and
none of the three saw a problem with this extra cost. Wildstein
and Zipf also discussed collecting data on the ensuing traffic,
and Wildstein testified he understood it would require “some
staff time.” J.A. 1688.

        On the morning of Monday, September 9, Port
Authority police placed traffic cones two toll booths to the
right of where they were customarily placed on the upper deck,
thereby reducing the number of Special Access Lanes from
three to one, and increasing the number of Main Line lanes
from nine to eleven. This realignment meant that Fort Lee’s




                                10
sole remaining Special Access Lane had to accept both cash
and E-ZPass, further delaying traffic. As discussed, Fort Lee
received no advance warning of the change—contrary to the
Port Authority’s standard procedures.

       As a result of this change, cars attempting to cross the
George Washington Bridge during the morning commute
backed up into Fort Lee and gridlocked the entire town. Mayor
Sokolich repeatedly attempted to contact Baroni and IGA to
have the two other Special Access Lanes reinstated, but Baroni
deliberately did not respond. Wildstein testified “that was the
plan that [he] had come up with along with Mr. Baroni and
Miss Kelly, which is that all calls would be directed to Mr.
Baroni. And that Mr. Baroni would be radio silent. Meaning
any—all the calls would come to him, and he wasn’t planning
on returning any of them.” J.A. 1687–88.

        On the morning of September 9, Mayor Sokolich called
Baroni’s office about an “urgent matter of public safety in Fort
Lee,” but received no response. S.A. 51. The Fort Lee
borough administrator also called to say Fort Lee police and
paramedics had difficulty responding to a missing child and a
cardiac arrest. The next day, the mayor called again, saying
the traffic was a “life/safety” issue and that paramedics had to
leave their vehicle and respond to a call on foot. S.A. 54.
Receiving no response to his calls, he then sent Baroni a letter
on September 12 detailing the negative impact on public safety
in Fort Lee. Kelly was similarly unmoved by the traffic and
the anger it generated, reportedly smiling when a colleague at
IGA informed her of the situation.

      Executive Director Foye first learned of the realignment
on the evening of Thursday, September 12. The following




                              11
morning, he sent an email to Baroni and others, criticizing the
“hasty and ill-advised” realignment and ordering the
restoration of the prior alignment with three Special Access
Lanes. J.A. 1100–02, 5809. Baroni went to Foye’s office and
asked that the realignment be put back into effect, with only
one Special Access Lane for Fort Lee. Foye testified Baroni
said the issue was “important to Trenton,” which Foye
understood to reference the Governor’s Office. J.A. 1107–08.
Foye refused to do so. Baroni returned to Foye’s office later
that day, again asked that two of Special Access Lanes be taken
away from Fort Lee, and said the issue was “important to
Trenton” and “Trenton may call.” J.A. 1109. Foye held firm
and continued to refuse. Wildstein testified Baroni reached out
to David Samson, the New Jersey-appointed Chairman of the
Port Authority, to “overrule Mr. Foye and talk to others on the
New York side,” but Samson ultimately declined to do so,
instead recommending Baroni “let it go.” J.A. 1832.

        In response to significant public backlash, Baroni and
Wildstein began preparing a report that would describe what
happened as “a traffic study to determine whether it was fairer
to give three lanes to Fort Lee.” J.A. 1870. The report would
also have admitted that the Port Authority had failed to give
Fort Lee appropriate notice due to an alleged “communications
breakdown.” J.A. 1870. But the report was never released
because Port Authority staff were asked to testify before the
New Jersey State Assembly. See J.A. 1879–80. Wildstein
helped Baroni prepare his testimony, which was based on the
draft report and the traffic study and “fairness” rationale.

      Then-Governor Christie fired Wildstein on December 6
and Baroni on December 12. Kelly was fired on January 9,




                              12
2014. A federal criminal investigation followed and resulted
in the underlying prosecution.

                              II.

       On April 23, 2015, a federal grand jury returned a nine-
count indictment, charging Defendants with seven counts each.

        In Count 1, the grand jury charged Defendants with
conspiracy to obtain by fraud, knowingly convert, or
intentionally misapply property of an organization receiving
federal benefits. 18 U.S.C. § 371. As charged, “[t]he object of
the conspiracy was to misuse Port Authority property to
facilitate and conceal the causing of traffic problems in Fort
Lee as punishment of Mayor Sokolich.” J.A. 96. In Count 2,
Defendants were charged with the substantive offense of that
conspiracy. The grand jury alleged Defendants, through Port
Authority agents Baroni and Wildstein, “obtained by fraud,
otherwise without authority knowingly converted to their use
and the use of others, and intentionally misapplied property
owned by and under the care, custody, and control of the Port
Authority, with a value of at least $5,000.” J.A. 119; 18 U.S.C.
§§ 666(a)(1)(A), 2.

       In Count 3, Defendants were charged with conspiracy
to commit wire fraud. 18 U.S.C. § 1349. The charged “object
of the conspiracy was to obtain money and property from the
Port Authority and to deprive the Port Authority of its right to
control its own assets by falsely representing and causing false
representations to be made that the lane and toll booth
reductions were for the purpose of a traffic study.” J.A. 120.
In Counts 4 through 7, the grand jury charged each Defendant
with two substantive wire fraud violations. 18 U.S.C. §§ 1343,




                              13
2. Count 4 pertained to Kelly’s August 13, 2013 email
informing Wildstein it was “[t]ime for some traffic problems
in Fort Lee,” and Count 6 to her September 9, 2013 email
thanking Wildstein for confirming there would be “[r]adio
silence” from Baroni in response to Mayor Sokolich’s
inquiries. J.A. 123 (second alteration in original). Counts 5
and 7 related to Baroni’s September 9 and 12, 2013 emails to
Wildstein concerning complaints from Mayor Sokolich.

       In Count 8, the grand jury charged Defendants with
conspiracy against civil rights. 18 U.S.C. § 241. The charged
“object of the conspiracy was to interfere with the localized
travel rights of the residents of Fort Lee for the illegitimate
purpose of causing significant traffic problems in Fort Lee to
punish Mayor Sokolich.” J.A. 124. In Count 9, Defendants
were charged with the substantive violation. 18 U.S.C. §§ 242,
2.

        At the outset, Defendants moved to dismiss all the
charges. See Fed. R. Crim. P. 12(b)(3)(B). The District Judge
held oral argument and denied the motions. After a six-week
trial, the jury found Defendants guilty on all counts.
Defendants moved for judgments of acquittal, see Fed. R.
Crim. P. 29, and for a new trial, see Fed. R. Crim. P. 33. Again,
the trial judge denied the motions. She then sentenced Baroni
to 24 months’ imprisonment and Kelly to 18 months’
imprisonment. Defendants, who are free on bail pending this
appeal, challenge only their judgments of conviction.4

4
 The trial court had jurisdiction under 18 U.S.C. § 3231. We
have jurisdiction over Defendants’ appeal of their judgments
of conviction under 28 U.S.C. § 1291.




                               14
                               III.

      Defendants challenge the sufficiency of the evidence
supporting their wire fraud and Section 666 convictions.

       “We exercise plenary review over a district court’s
grant or denial of a motion for judgment of acquittal based on
the sufficiency of the evidence,” United States v. Willis, 

, 164 n.21 (3d Cir. 2016), and we apply the same
standard as the district court, see United States v. Ferriero, 

, 113 n.4 (3d Cir. 2017) (citing Jackson v. Virginia,

, 319 (1979)). “A judgment of acquittal is
appropriate under Federal Rule of Criminal Procedure 29 if,
after reviewing the record in a light most favorable to the
prosecution, we determine that no rational jury could have
found proof of guilt beyond a reasonable doubt.” 

n.21. Where sufficiency arguments give rise to
questions of statutory interpretation, our review is also plenary.
See 

n.4.

                               A.

       Defendants challenge the sufficiency of the evidence
underlying their wire fraud convictions. “A person violates the
federal wire fraud statute by using interstate wires to execute
‘any scheme or artifice to defraud, or for obtaining money or
property by means of false or fraudulent pretenses,
representations, or promises.’” 

(quoting 18 U.S.C. § 1343). Conspiracy to commit wire fraud
is a separate crime subject to the same penalties as the
substantive offense. See 18 U.S.C. § 1349.




                               15
       The Government’s theory at trial was that Defendants
sent emails in furtherance of, and to execute, a scheme to
defraud the Port Authority of physical property (i.e., the
Special Access Lanes and toll booths) and money (i.e., public
employee labor) in order to carry out the lane reductions. In
summation, the Government explained this was the “same
money, the salaries, the same property, the lanes, the toll
booths,” that it alleged Defendants fraudulently obtained,
knowingly converted, or intentionally misapplied in violation
of 18 U.S.C. § 666. J.A. 5195. The Government explained:

       The physical property that was misused were the
       local access lanes, themselves, and the toll
       booths. . . . The defendants agreed to use these
       Port Authority assets, that property, to purposely
       create a traffic jam in Fort Lee. That agreement
       was not a legitimate use of the George
       Washington Bridge, the Port Authority’s
       property.

J.A. 5193–94. The Government identified the “money” as “the
salaries of each of the employees who wasted their time in
furtherance of the defendants’ scheme,” including “the salary
paid to the overtime toll booth collectors for the one remaining
toll booth that was accessible to Fort Lee,” “the money paid to
Baroni and Wildstein themselves while they . . . [were] wasting
their time in furtherance of this conspiracy,” and “money paid
to the engineers who wasted time—and Port Authority
professional staff, who wasted time collecting data that no one
ever wanted.” J.A. 5194. The Government also invoked the
costs the Port Authority incurred in redoing a legitimate traffic
study—at Center and Lemoine Avenues in Fort Lee—that was




                               16
spoiled by the gridlock and “would not have been ruined
without these lane reductions.” J.A. 5296.

       According to the Government, Defendants’ untruthful
claim they were conducting a traffic study was what allowed
them to carry out the lane reductions and to obtain the Port
Authority property and money necessary to do so. The
Government also contended Defendants conspired with each
other and Wildstein in furtherance of this fraudulent scheme.

       Defendants argue the evidence was insufficient to prove
a scheme to defraud because (1) Baroni possessed unilateral
authority over Port Authority traffic patterns and any resources
necessary to implement his decisions, and (2) the Port
Authority was not deprived of any property right. In addition
to these challenges, Defendants contend the Government has
disguised an impermissible honest services fraud case as a wire
fraud case in an attempt to circumvent the Supreme Court’s
decision in Skilling v. United States, 

(2010).

       For reasons that follow, we hold the Government
presented evidence sufficient to prove Defendants violated the
wire fraud statute by depriving the Port Authority of, at a
minimum, its money in the form of public employee labor.

                                1.

       Defendants principally argue they could not have
committed fraud because Baroni possessed the unilateral
authority to control traffic patterns at Port Authority facilities
and to marshal the resources necessary to implement his
decisions.




                               17
        They previously raised this argument in moving both to
dismiss the indictment and for judgments of acquittal or a new
trial. Before trial, the District Judge declined to dismiss the
wire fraud counts on this basis, holding the existence and scope
of Baroni’s authority was a question of fact for the jury. After
trial, the judge denied Defendants’ motions because that
question was “one that the jurors resolved in favor of the
prosecution.” J.A. 60. Carefully reviewing the relevant
witness testimony, the judge held “the Government presented
evidence at trial from which the jury could reasonably have
found that Baroni did not have the authority to change the lane
configurations, and in fact, did defraud the Port Authority.”
J.A. 59. We agree.

        Defendants rely on our opinion in United States v.
Zauber, 

(3d Cir. 1988). There, the defendants
were pension fund trustees who received kickbacks for
investing in a mortgage company. See 

We held
the indictment failed to charge violations of the mail and wire
fraud statutes because it did not allege “an actual money or
property loss to the pension fund.” 

In so
holding, we observed, among other things, that the defendants,
“as trustees of the pension fund, had the power and the
authority to invest the fund’s monies with others.” 

Likening Baroni to the pension fund trustees in Zauber,
Defendants argue “the undisputed evidence showed that
Baroni’s position as co-head of the Port Authority gave him
authority to make unilateral decisions about the alignment of
traffic patterns at Port Authority facilities, and to command the
resources needed to carry those decisions out.” Baroni Br. at
42. We disagree.




                               18
        As a preliminary matter, Zauber is inapposite because
here the grand jury alleged, and the Government proved at trial,
that the Port Authority was actually deprived of its money and
property. In any event, the evidence refutes the notion Baroni
possessed “unilateral” authority to realign the bridge’s lanes.
To the contrary, it reveals Defendants would not have been
able to realign the lanes had Baroni and Wildstein provided the
actual reason or no reason at all. They had to create the traffic
study cover story in order to get Port Authority employees to
implement the realignment. And, as we described above,
Wildstein lied to Port Authority officials Durando and Fulton
about whether Executive Director Foye knew of the
realignment. This lie was necessary to keep Foye in the dark
and prevent him from putting an immediate end to the scheme.
In fact, that is exactly what happened when he finally learned
of the realignment. Foye ordered the three Special Access
Lanes be restored to the use of Fort Lee motorists and refused
Baroni’s repeated entreaties to reinstate the realignment.
Baroni then appealed to Chairman Samson, who declined to
intervene and overrule Foye’s decision. This evidence belies
Defendants’ assertion Baroni had anything approaching
“authority to make unilateral decisions about the alignment of
traffic patterns at Port Authority facilities.” Baroni Br. at 42.
If that were so, Baroni could have reinstated the realignment
on his own without needing to appeal to Foye and then Samson.
That Baroni was countermanded shows he lacked the
unencumbered authority he claims he possessed, and that he
needed to lie to realign the traffic patterns. The record contains
overwhelming evidence from which a rational juror could have
reached these conclusions. Indeed, it is difficult to see how any
rational juror could have concluded otherwise. The jury’s
verdict necessarily reflects its rejection of Defendants’




                               19
argument that Baroni possessed unilateral authority to control
the bridge.

      Defendants contend we cannot draw this inference
because the trial judge declined to give a jury instruction based
on Zauber.5 We disagree. The judge instructed the jury that

5
  Defendants requested the following language be added to the
jury instructions:

       However, if an organization grants or bestows
       upon an employee the power or authority to
       control the organization’s money or property,
       and the employee acts within the bounds of that
       power or authority, then you cannot find a
       scheme to defraud. Thus, if you find the Port
       Authority granted or bestowed upon David
       Wildstein or Mr. Baroni the power or authority
       to control the Port Authority money or property
       at issue here, and David Wildstein or Mr. Baroni
       acted within the bounds of that power or
       authority, then you cannot find a scheme to
       defraud existed. . . . Mr. Baroni and Ms. Kelly
       contend that the proof establishes that the Port
       Authority granted David Wildstein and Mr.
       Baroni the right to control the Port Authority
       money and property at issue here, which would
       prevent the existence of a scheme to defraud.

J.A. 307 (footnote omitted). The District Judge declined to
adopt this language but told Defendants they were free to
make this argument to the jury. While the Government




                               20
       [i]n order to establish a scheme to defraud, the
       Government must also prove that the alleged
       scheme contemplated depriving the Port
       Authority of money and property.             An
       organization is deprived of money or property
       when the organization is deprived of the right to
       control that money or property. And one way the
       organization is deprived of the right to control
       that money and property is when the
       organization receives false or fraudulent
       statements that affect its ability to make
       discretionary economic decisions about what to
       do with that money or property.

J.A. 5121–22. This instruction forecloses the possibility the
jury convicted Defendants of fraud without finding Baroni
lacked authority to realign the lanes. For Baroni could not
deprive the Port Authority of money and property he was
authorized to use for any purpose. Nor could he deprive the
Port Authority of its right to control its money or property if
that right to control were committed to his unilateral discretion.
In finding the existence of a scheme to defraud, the jury
necessarily concluded Baroni lacked authority to order the
realignment.
                               2.

       Defendants also argue the Port Authority was not
deprived of any tangible property and challenge the


argued the realignment was unauthorized, Baroni instead
chose to argue he acted in good faith and did not know the
study was a sham.




                               21
Government’s and District Court’s invocation of the “right to
control” theory of property.

       Before trial, the trial judge rejected Defendants’ related
argument the charges should be dismissed because they did not
“obtain” money or property. Relying on our decision in United
States v. Al Hedaithy, 

(3d Cir. 2004), the judge
ruled “it [wa]s enough that they prevented the Port Authority
from exercising ‘its right to exclusive use of’ its property,
which here allegedly includes toll booths and roadways, in
addition to money in the form of employee compensation and
the costs of redoing a traffic study.” J.A. 36–37.

        In their post-trial motions, however, Defendants raised
no sufficiency arguments respecting the property at issue.
Rather, they contended only that Baroni possessed the
authority to realign the lanes. We note Defendants arguably
forfeited their right to raise these issues on appeal by not
presenting them to the District Court.6 But we need not decide

6
  Nearly all our sister circuits have held that while a general
sufficiency challenge is adequate to preserve specific
sufficiency arguments on appeal, a defendant who seeks a
judgment of acquittal on specific grounds forfeits on appeal all
other grounds not specifically raised. See United States v.
Samuels, 

, 1036 (8th Cir. 2017); United States v.
Hosseini, 

, 550 (7th Cir. 2012); United States v.
Chong Lam, 

, 200 (4th Cir. 2012); United States
v. Cooper, 

, 1117 (10th Cir. 2011); United States
v. Graf, 

, 1166 (9th Cir. 2010); United States v.
Herrera, 

, 884–85 (5th Cir. 2002) (en banc);
United States v. Chance, 

, 371 (6th Cir. 2002);




                               22
that question because Defendants’ arguments are unpersuasive
under any standard of review.

        The wire fraud statute proscribes “scheme[s] or
artifice[s] to defraud, or for obtaining money or property by
means of false or fraudulent pretenses.” 18 U.S.C. § 1343. As
Defendants note, the federal fraud statutes require the
defendants to scheme to defraud a victim of “property rights.”
See McNally v. United States, 

, 359–60 (1987)
(holding that the mail fraud statute is “limited in scope to the
protection of property rights”). Those property rights,
however, need not be tangible. See Carpenter v. United States,

, 25 (1987) (“[Confidential business information’s]
intangible nature does not make it any less ‘property’ protected
by the mail and wire fraud statutes. McNally did not limit the
scope of § 1341 to tangible as distinguished from intangible
property rights.”); United States v. Henry, 

, 113–
14 (3d Cir. 1994) (“Carpenter made clear, however, that
although a property right is required under McNally, it need not
be a tangible one.”).




United States v. Peña-Lora, 

, 26 & n.5 (1st Cir.
2000); United States v. Spinner, 

, 955 (D.C. Cir.
1998); United States v. Delano, 

, 726 (2d Cir.
1995); see also 2A Charles Alan Wright et al., Fed. Prac. &
Proc. Crim. § 469 (4th ed. Apr. 2018) (“And if the defendant
has asserted specific grounds in the trial court as the basis for
a motion for acquittal, he or she cannot assert other grounds on
appeal.”). We have not squarely addressed the question and
need not do so here.




                               23
        Defendants argue they “did not deprive the Port
Authority of any tangible property.” Kelly Br. at 40. “After
all,” they say, “the Port Authority still owns all of the lanes and
tollbooths (and always has).” 

assuming arguendo
Defendants are correct, the federal fraud statutes are not
limited to protecting tangible property rights. “[T]o determine
whether a particular interest is property for purposes of the
fraud statutes, we look to whether the law traditionally has
recognized and enforced it as a property right.” 

; see also United States v. Evans, 

, 41 (2d
Cir. 1988) (“That the right at issue here has not been treated as
a property right in other contexts, and that there are many basic
differences between it and common-law property[,] are
relevant considerations in deciding whether the right is
property under the federal fraud statutes.”).

       The Government introduced ample evidence
Defendants obtained by false or fraudulent pretenses, at a
minimum, public employees’ labor. Their time and wages, in
which the Port Authority maintains a financial interest, is a
form of intangible property. Cf., e.g., United States v. Pintar,

, 1282 (8th Cir. 1980) (“[T]here was evidence of
concealment in connection with the diversion of employee
services.      Assuming proof of fraud is necessary, this
suffices.”). 7

       Wildstein testified that, on the Friday before the lane
reductions, he called Durando, the general manager of the
George Washington Bridge, and said he wanted to study traffic

7
  As we will explain, it is well established that public employee
labor is also property for the purposes of Section 666, which
proscribes, inter alia, fraudulently obtaining property. See
infra III.B.1.




                                24
patterns and see the effect of taking two lanes away from Fort
Lee. Wildstein told Durando the New Jersey side of the Port
Authority wanted to be able to “make a determination down
the road as to whether those [Fort Lee] lanes would stay on a
permanent basis.” J.A. 1685. Of course, as Wildstein admitted
at trial, the traffic study rationale offered to Durando was not
the real reason for the realignment.

        Among other things, Durando told Wildstein he would
need to have a relief toll worker on duty because all of Fort
Lee’s traffic would be going through one lane. Wildstein
testified he “understood that the Port Authority would have to
pay for an extra toll collector to be on relief duty for that first
toll collector,” J.A. 1686, and discussed this cost with both
Defendants. According to Wildstein, both Baroni and Kelly
found it humorous that the Port Authority would have to “pay
a second toll collector to sit and wait in case the first toll
collector had to go to the bathroom,” and they had no problem
with the extra cost. J.A. 1687. On Sunday, September 8, 2013,
Wildstein emailed Durando to say he would “be at [the] bridge
early Monday [morning] to view [the] new lane test.” S.A. 49.
Durando replied that he would also be present, and that he had
“also brought a toll collector in on overtime to keep toll lane
24 (the extreme right hand toll lane Upper level) in the event
the collector assigned to TL 24 needs a personal.” S.A. 49.
Wildstein forwarded the email to Baroni.              On cross-
examination, Baroni admitted he had received the email and
did not object to bringing in overtime toll booth workers.

       The Government also called Theresa Riva, a Port
Authority employee who served as an Operations Planning
Analyst for the George Washington Bridge during the relevant
time period. In that capacity, Riva supervised time keeping for




                                25
operations staff and managed scheduling and coverage for toll
collectors. Riva testified she learned of the lane reductions the
Friday before, and Bob Durando “asked [her] to staff one
additional toll collector” on the upper level toll plaza twenty-
four hours a day. J.A. 2897. Because toll collectors work
eight-hour shifts, this meant “three toll collectors a day to be
an excess toll collector in the toll house.” J.A. 2897. Riva
testified all these additional toll collectors were paid an
overtime rate “[b]ecause they either worked on their regular
day off or in excess of eight hours, a double [shift].” J.A. 2898.
Riva testified these employees would not have been paid
absent the lane realignment.

        In addition to the overtime toll workers, Wildstein
discussed with Zipf using Port Authority professional staff to
track data, which would include “numbers on how—how many
cars were involved and how far back the traffic was delayed.”
J.A. 1688. Wildstein understood Zipf “would have to use some
staff time.” J.A. 1688. At trial, the staff members testified to
the significant amount of time they spent performing
unnecessary work related to the realignment.

        Amy Hwang, Senior Operations Planning Analyst for
the Port Authority, testified she collected data on traffic at the
bridge and compared it to traffic on the same date the year
before. Hwang testified she spent two hours working on the
traffic study per day from Monday, September 9, through
Friday, September 13, for a total of 10 hours.

        Victor Chung, Senior Transportation Planner for the
Port Authority, was asked to forecast the impact of reducing
Fort Lee’s Special Access Lanes from three to one. Chung
testified he spent a little over eight hours doing this analysis on




                                26
the Friday before the reductions went into effect. During the
week of the reductions, Chung was asked to compare travel
times approaching the bridge’s upper-level toll plaza during
peak hours and to compare it to historical travel times. Chung
testified he spent about six hours on this analysis, for a total of
14 hours spent on unnecessary work.

       And Umang Patel, Staff Service Engineer in the Port
Authority’s Traffic Engineering department, downloaded and
analyzed data relating to travel time on the Main Line during
the lane reductions. Patel testified he spent two hours
discussing the lane reductions on Monday, September 9, and
four hours per day analyzing data on Tuesday, September 10,
through Thursday, September 12, for a total of fourteen hours.

        Moreover, Wildstein estimated he spent twenty-five to
thirty hours working on the lane reductions, and that Baroni
spent fifteen to twenty hours, for a total of forty to fifty hours.
Their compensation is plainly “money” for the purposes of the
wire fraud statute.8
        The Government’s evidence that Defendants
fraudulently conscripted fourteen Port Authority employees
into their service, and that Baroni and Wildstein accepted
compensation for time spent conspiring to defraud the Port
Authority, is alone sufficient for a rational juror to have

8
  As we will explain, Section 666 contains a safe harbor for,
among other things, bona fide compensation. See 18 U.S.C.
§ 666(c). That safe harbor applies only to that statute and does
not affect our analysis of the money and property at the heart
of the wire fraud counts.




                                27
concluded Defendants deprived the Port Authority of its
money or property.

      Although we need not reach or decide Defendant’s
arguments on the “right to control” theory9 in light of our
holding, we recognize this traditional concept of property
provides an alternative basis upon which to conclude
Defendants defrauded the Port Authority. As Baroni notes,

9
  Although each Defendant has fully adopted the arguments
made in the other’s brief, see Baroni Br. at 2 n.1; Kelly Br. at
4 n.1; Fed. R. App. P. 28(i), their positions on the “right to
control” theory of property are in conflict. Baroni appears to
accept as a background principle of law our precedent that
“[i]ncluded within the meaning of money or property is the
victim’s ‘right to control’ that money or property.” Baroni Br.
at 41 (citing Al 

–03). Kelly, on the
other hand, argues at considerable length that “the theory that
the Port Authority had been deprived of its supposed intangible
property right to ‘control’ the use of its own ‘assets’ . . . fails
as a matter of law.” Kelly Br. at 40; see 

(“The
Government has tried to sell this ‘right to control’ theory
before, under far more egregious circumstances, but this Court
did not buy it even there.”); 

(“In any event, whatever
force the ‘right to control’ concept may have in the private
sector, it cannot be imported to condemn a state official who
makes regulatory decisions.”); 

(“The Government and
the District Court invoked [Al Hedaithy] to support the ‘right
to control’ theory. . . . It is utterly inapposite here.”); 

(“In fact, the ‘right to control’ theory is hotly contested among
the Courts of Appeals.”).




                                 28
“[i]ncluded within the meaning of money or property is the
victim’s ‘right to control’ that money or property.” Baroni Br.
at 41 (citing Al 

–03); see 

–27 (holding “[t]he [Wall Street] Journal had a
property right in keeping confidential and making exclusive
use, prior to publication, of the schedule and contents of the
‘Heard’ column” and that “it is sufficient that the Journal has
been deprived of its right to exclusive use of the information,
for exclusivity is an important aspect of confidential business
information and most private property for that matter”
(emphasis added)); Al 

(“[T]he
deprivation in this case is identical to that asserted in
Carpenter, i.e., the deprivation of ETS’s right to exclusive use
of its property.”); 2 William Blackstone, Commentaries *2
(describing “the right of property” as “that sole and despotic
dominion which one man claims and exercises over the
external things of the world, in total exclusion of the right of
any other individual in the universe”).

       The George Washington Bridge is the world’s busiest
motor vehicle bridge10 leading to our nation’s most populous
city. The Port Authority’s physical property—the bridge’s
lanes and toll booths—are revenue-generating assets. The Port
Authority has an unquestionable property interest in the
bridge’s exclusive operation, including the allocation of traffic
through its lanes and of the public employee resources

10
   See George Washington Bridge, Port Auth. of N.Y. & N.J.,
http://www.panynj.gov/bridges-tunnels/george-washington-
bridge.html (“The busiest bridge in the world, connecting
northern Manhattan and Fort Lee, NJ.”) (last visited Nov. 8,
2018).




                               29
necessary to keep vehicles moving. Defendants invented a
sham traffic study to usurp that exclusive interest, reallocating
the flow of traffic and commandeering public employee time
in a manner that made no economic or practical sense. Indeed,
the realignment—intended to limit access to the bridge and
gridlock an entire town—was impractical by design.

       In sum, Defendants’ arguments concerning the property
interest at issue fall far short.

                               3.

       Finally, Defendants argue we “should reject the
government’s attempt to shoehorn a repudiated theory of
honest services fraud into an ill-fitting theory of money or
property fraud.” Baroni Br. at 44.

       In denying Defendants’ post-trial motions, the District
Court summarily rejected this argument, holding “[t]here is a
difference . . . between intangible rights to honest services not
covered by the wire fraud statute, and intangible property
rights which are.” J.A. 60 n.15 (citing 

, and 

). We agree.

       Defendants primarily rely on the Supreme Court’s
decision in Skilling v. United States, 

(2010),
which narrowed the scope of the honest services statute, 18
U.S.C. § 1346. After the Supreme Court ruled in McNally that
the mail fraud statute was “limited in scope to the protection of
property rights,” 

(quoting 

), Congress enacted Section 1346 “specifically
to cover one of the ‘intangible rights’ that lower courts had
protected . . . prior to McNally: ‘the intangible right of honest




                               30
services,’” 

v. United States, 

, 19–20 (2000)). That statute provides, for the purposes of
the mail and wire fraud statutes, that “the term ‘scheme or
artifice to defraud’ includes a scheme or artifice to deprive
another of the intangible right of honest services.” 

U.S.C. § 1346).         In Skilling, the Supreme Court
acknowledged “Congress intended § 1346 to refer to and
incorporate the honest-services doctrine recognized in Courts
of Appeals’ decisions before McNally derailed the intangible-
rights theory of fraud.” 

But it also recognized a
broad reading of the statute “would raise the due process
concerns underlying the vagueness doctrine.” 

In
order to preserve the statute, the Court surveyed pre-McNally
honest services case law, see 

concluded “there
is no doubt that Congress intended § 1346 to reach at least
bribes and kickbacks,” 

Accordingly, the Court
limited the application of Section 1346 to “the bribe-and-
kickback core of the pre-McNally case law.” 

        Defendants argue it cannot be a crime “for a public
official to take official action based on concealed ‘political
interests.’” Baroni Br. at 48. And they warn that “[t]he
government’s theory—that acting with a concealed political
interest nonetheless becomes mail or wire fraud so long as the
public official uses any government resources to make or
effectuate the decision—would render the Supreme Court’s
carefully considered limitation [on honest services fraud] a
nullity.” Baroni Br. at 48. According to Defendants, “[i]t
cannot be the case that the Supreme Court has pointedly and
repeatedly rebuffed the government’s attempts to prosecute
public officials for the deprivation of the public’s intangible
right to honest services or honest government if, all along, the
inevitable use of at least a peppercorn of public money or




                               31
property made every instance of such conduct prosecutable as
money or property fraud.”11 Baroni Br. at 48–49.

        We are mindful of the Supreme Court’s honest services
case law but do not believe it counsels a different result in this
case. Defendants were charged with simple money and
property fraud under Section 1343—not honest services
fraud—and the grand jury alleged an actual money and
property loss to the Port Authority. In any event, their conduct
in this case can hardly be characterized as “official action” that
was merely influenced by political considerations. Defendants
invented a cover story about a traffic study for the sole purpose
of reducing Fort Lee’s access to the George Washington
Bridge and creating gridlock in the Borough. Trial testimony
established that everything about the way this “study” was
executed contravened established Port Authority protocol and
procedures. Indeed, witnesses testified that traffic studies are

11
   In passing, Defendants also contend their convictions raise
First Amendment concerns because they represent “a criminal
penalty for misleading political speech.” Baroni Br. at 49
(quoting United States v. Blagojevich, 

, 736 (7th
Cir. 2015)); see also Kelly Br. at 44 (“Moreover, given its
implications for core political speech, this theory raises real
First Amendment issues.”). These arguments—to which
Defendants devote a mere three sentences between their two
briefs—have not been sufficiently presented or developed. We
agree with the Government they are waived. See John Wyeth
& Bro. Ltd. v. Cigna Int’l Corp., 

, 1076 n.6 (3d
Cir. 1997) (“[A]rguments raised in passing (such as, in a
footnote), but not squarely argued, are considered waived.”).




                               32
usually conducted by computer modeling, without the need to
realign traffic patterns or disrupt actual traffic. When traffic
disruptions are anticipated, the Port Authority gives advance
public notice. And, as we have discussed, the evidence
conclusively demonstrates Baroni lacked the authority to
realign the bridge’s traffic patterns unilaterally.

        It is hard to see, under Defendants’ theory, how a public
official could ever be charged with simple mail or wire fraud.
They appear to suggest that, as public officials, any fraud case
against them necessarily entails intangible right to honest
services. That is not so. As we have explained, Defendants
were charged with defrauding the Port Authority of its money
and property12—not the intangible right to their honest
services. Prosecutions of public officials for defrauding the
government of money and property are unfortunately quite
common. See, e.g., United States v. James, 

(3d
Cir. 2018) (former Virgin Islands senator charged with wire
fraud and Section 666(a)(1)(A) violations for obtaining

12
   The trial evidence is sufficient to show Defendants deprived
the Port Authority of much more than a “peppercorn of public
money or property,” Baroni Br. at 49. In any event, as the
Government notes, the wire fraud statute contains no monetary
threshold. See 18 U.S.C. § 1343; cf. United States v. DeFries,

, 709 (D.C. Cir. 1995) (“It is difficult to see where
the defendants find this de minimis exception. The [federal]
fraud statute speaks only of ‘money or property’ generally, not
of property above a certain value. . . . Given the absence of
any statutory hint of a threshold minimum, it is hardly
surprising that several courts have found [the statute]
applicable to what at first glance appear to be exceedingly
small property interests.”).




                               33
legislature funds under false pretenses); United States v. Fumo,

(3d Cir. 2011) (Pennsylvania state senator
convicted of mail and wire fraud for using state-paid
employees for personal and political tasks in violation of state
ethics laws); United States v. Bryant, 

(3d Cir.
2011) (New Jersey state senator charged with mail fraud for
fraudulently inflating pension eligibility through no-show
jobs); United States v. Williams, No. 17-137, 

(E.D. Pa. June 6, 2017) (Philadelphia district attorney
charged with mail and wire fraud for defrauding city and
federal government of use of publicly owned vehicles).

        Defendants also argue their convictions pose federalism
concerns and would “involve[] the Federal Government in
setting standards of good government for local and state
officials.” Baroni Br. at 49 (quoting 

).
Again, we disagree. This case lacks the federalism concerns
present in McNally, where the federal government prosecuted
a Kentucky state official and a private citizen for their role in a
“self-dealing patronage scheme” involving the state’s purchase
of insurance policies. 

–53. But unlike a
typical state or local governmental body, the Port Authority is
an interstate agency created by Congressional consent, see
H.R.J. Res. 337, 67th Cong. (1922) (enacted), and Defendants
acknowledge it receives substantial federal funding. The
federal government thus has an especially significant interest
in protecting the Port Authority’s financial and operational
integrity.

                           *    *     *

        In sum, the Government presented sufficient evidence
for the jury to convict Defendants of wire fraud.




                                34
                               B.

       Defendants’ other sufficiency challenge contests their
Section 666 convictions. In relevant part, Section 666
provides:

       (a) Whoever, if the circumstance described in
           subsection (b) of this section
           exists—
              (1) being an agent of an organization, or
                  of a State, local, or Indian tribal
                  government, or any agency thereof—
                     (A) embezzles, steals, obtains by
                          fraud, or otherwise without
                          authority knowingly converts
                          to the use of any person other
                          than the rightful owner or
                          intentionally        misapplies,
                          property that—
                              (i) is valued at $5,000 or
                              more, and
                              (ii) is owned by, or is
                                   under      the    care,
                                   custody, or control of
                                   such      organization,
                                   government,          or
                                   agency; . . .

          shall be fined under this title, imprisoned not
more than 10 years, or both.




                               35
       (b) The circumstance referred to in subsection
           (a) of this section is that the organization,
           government, or agency receives, in any one
           year period, benefits in excess of $10,000
           under a Federal program involving a grant,
           contract, subsidy, loan, guarantee, insurance,
           or other form of Federal assistance.

18 U.S.C. § 666(a)(1)(A), (b).

        Accordingly, a violation of Section 666(a)(1)(A)
requires proof of five elements. The government must prove
that: (1) a defendant was an agent of an organization,
government, or agency; (2) in a one-year period that
organization, government, or agency received federal benefits
in excess of $10,000; (3) a defendant stole, embezzled,
obtained by fraud, knowingly converted, or intentionally
misapplied property; (4) that property was owned by, or in the
care, custody, or control of, the organization, government, or
entity; and (5) the value of that property was at least $5,000.13
See 

this case, with the parties’ agreement, the trial court
instructed the jury on these five elements consistent with the
Third Circuit Model Jury Instruction:

       In order to find the defendants guilty of violating
       Section 666(a)(1)(A), you must find that the
       Government proved each of the following five
       elements beyond a reasonable doubt. First, that
       from August through December, 2013, Mr.
       Baroni or Mr. Wildstein was an agent of the Port




                               36
       Defendants’ appeal involves only the third and fifth
elements14—whether they obtained by fraud, knowingly
converted, or intentionally misapplied Port Authority property
(the actus reus), and whether that property was worth at least
$5,000.

        As with the wire fraud counts, the Government’s theory
at trial was that the property at issue fell into two categories:
physical property (i.e., the Special Access Lanes and toll
booths) and money (i.e., employee labor).



       Authority. Second, that in the calendar year
       2013, the Port Authority received federal
       benefits in excess of $10,000. Third, that the
       defendants obtained by fraud, knowingly
       converted, or intentionally misapplied Port
       Authority property. Fourth, that the property
       obtained by fraud, knowingly converted, or
       intentionally misapplied, was owned by or was
       in the care, custody or control of the Port
       Authority. And fifth, that the value of the
       property obtained by fraud, knowingly
       converted, or intentionally misapplied was at
       least $5,000.

J.A. 5107.
14
  Defendants conceded that Baroni and Wildstein were agents
of the Port Authority and stipulated that the Port Authority
received federal funds in excess of $10,000 in 2013.




                               37
       Defendants argue the evidence was insufficient to prove
a violation of Section 666 because (1) that provision
criminalizes theft, not the allocation of a public resource based
on political considerations, and (2) the value of the property at
issue was under $5,000.

       For reasons that follow, we hold the Government
presented evidence sufficient to prove Defendants violated
Section 666 by fraudulently obtaining, at a minimum, the labor
of Port Authority employees in furtherance of their scheme,
and that the value of that labor exceeded the statute’s $5,000
threshold.

                               1.

        Defendants broadly argue they merely allocated a
public resource based on political considerations, which cannot
be criminal. Offering an analogy, Kelly contends Defendants’
conduct is “materially indistinguishable” from that of a mayor
who, after a heavy snowfall, directs city employees to plow the
streets of a ward that supported her before getting to a ward
that supported her opponent. Kelly Br. at 1. Baroni makes
similar arguments. See Baroni Br. at 31 (“In any event, it is
obvious that there is nothing illegal about allocating public
resources to favor political supporters and allies. Budgets are
enacted, projects are funded, pork is doled out, potholes are
filled, and snow is plowed at every level of government with
political considerations in mind.”).

       While such analogies have some superficial appeal, we
find them unpersuasive. We agree with the District Court that
this argument “conflates motive . . . with mens reas and
conduct.” J.A. 54. Defendants altered the bridge’s decades-




                               38
old lane alignment—without authorization and in direct
contravention of Port Authority protocol—for the sole purpose
of creating gridlock in Fort Lee. To execute their scheme, they
conscripted fourteen Port Authority employees to do sham
work in pursuit of no legitimate Port Authority aim. That
Defendants were politically motivated does not remove their
intentional conduct from the ambit of the federal criminal law.
What Defendants did here is hardly analogous to a situation
where a mayor allows political considerations to influence her
discretionary allocation of limited government resources in the
normal course of municipal operations. There is no facially
legitimate justification for Defendants’ conduct here.

       Nor are we persuaded by Defendants’ arguments that
the Government has sought to expand the reach of Section 666
beyond conduct involving bribery and theft. Relying upon our
decision in United States v. Cicco, 

(3d Cir. 1991),
Defendants contend the Government is attempting to use
Section 666 “to criminalize a public official’s efforts to
allocate or reallocate public resources based on politics.”
Baroni Br. at 24. In that case, Cicco, a mayor, declined to
rehire two auxiliary police officers because they failed to
support the Democratic Party in a local election. See 

. The Government filed a multi-count
indictment charging Cicco and a member of the town council
with, among other things, violations of Section 666’s
anti-bribery provision, 18 U.S.C. § 666(a)(1)(B). See 

jury found the defendants guilty, the trial court entered a
judgment of acquittal on the Section 666 counts, reasoning
Congress did not intend for the statute to apply to their conduct
and that it was unconstitutionally vague. See 

                               39
        On appeal, we recognized Section 666, read literally,
might cover the defendants’ use of municipal employment to
solicit election day services as a form of quid pro quo, but that
the statute’s language was “also consistent with an intention of
focusing solely on offenses involving theft or bribery, the
crimes identified in the title of that section.” 

Because we found the statute ambiguous, we turned to the
legislative history. Concluding “the crimes Congress targeted
when it created § 666 are simply different in kind than those
alleged” against the defendants, we held they did not violate
the statute. 

We also observed that the conduct
in question—deprivation of public employment to solicit
political contributions—was within the ambit of a different
criminal statute, 18 U.S.C. § 601. See 

        The Government responds that Cicco is inapposite
because the conduct at issue in that case “potentially implicated
the bribery provisions of § 666(a)(1)(B), but has nothing to do
with property obtained by fraud, converted or otherwise
intentionally misapplied.” Gov’t Br. at 38. We agree that this
case is not like Cicco.

        But Cicco is instructive here. Our exposition of Section
666’s legislative history—which was not limited to Section
666’s bribery provisions—confirms that Defendants’ conduct
in this case falls squarely within the statute’s purpose. As we
explained in Cicco, Congress enacted Section 666 as part of
the Comprehensive Crime Bill of 1984. 

.
We noted “[t]he provision was ‘designed to create new
offenses to augment the ability of the United States to vindicate
significant acts of theft, fraud, and bribery involving Federal
monies which are disbursed to private organizations or State
and local governments pursuant to a Federal program.’” 

S. Rep. No. 98-225, at 369 (1984), as reprinted in
1984 U.S.C.C.A.N. 3182, 3510). We observed “[t]he Senate
Report expressly notes that Congress wished the new statutory
provision to be interpreted ‘consistent with the purpose of this
section to protect the integrity of the vast sums of money
distributed through Federal programs from theft, fraud, and
undue influence by bribery.’” 

(quoting S. Rep. No.
98-225, at 370, 1984 U.S.C.C.A.N. at 3511). And “[w]e
quote[d] extensively from the legislative history to illustrate
that Congress intended § 666 to redress particular deficiencies
in identified existing statutes.”15 

–45.

15
  The legislative history reveals Congress intended for Section
666 to augment two existing statutes, 18 U.S.C. §§ 641 and
665. Section 641, “the general theft of Federal property
statute,” applies “only if it can be shown that the property
stolen is property of the United States.” 

(quoting S. Rep. No. 98-225, at 370, 1984 U.S.C.C.A.N. at
3511). As we recounted, the Senate Report explains:

       In many cases, such prosecution is impossible
       because title has passed to the recipient before
       the property is stolen, or the funds are so
       commingled that the Federal character of the
       funds cannot be shown. This situation gives rise
       to a serious gap in the law, since even though title
       to the monies may have passed, the Federal
       Government clearly retains a strong interest in
       assuring the integrity of such program funds.

Rep. No. 98-225, at 370, 1984 U.S.C.C.A.N.
at 3511). And while Section 665 makes it a crime for an




                               41
        We have subsequently reaffirmed our understanding
that Congress intended Section 666 to focus on offenses
involving fraud and theft, observing “that Congress intended
to expand the federal government’s prosecutorial power to
encompass significant misapplication of federal funds at a
local level.” United States v. Willis, 

, 165 (3d Cir.
2016) (quoting United States v. Valentine, 

, 463
(6th Cir. 1995)). We have also “not[ed] that courts have been
wary of interpreting § 666 too narrowly” and that “the
Supreme Court has repeatedly avoided constructions of § 666
that would impose limits beyond those set out in the plain
meaning of the statute.” 

Although all of the relevant
Supreme Court cases involve challenges to Section 666’s
bribery provisions, their discussion of the statute’s text and
legislative history validate our long-established understanding
of the statute’s purpose and scope.

       In Salinas v. United States, 

(1997), for
example, the petitioner contended the Government must prove
a connection between a bribe and federal funds to obtain a
conviction under Section 666(a)(1)(B). 

The
Supreme Court disagreed, holding that Section 666’s bribery
prohibition “is not confined to a business or transaction which


agency officer or employee to steal federal job training funds,
there was no statute of general applicability pertaining to theft
or embezzlement by such individuals. See 

enacted Section 666, in part, to correct the deficiencies in
these provisions. “The goal was to protect federal funds by
authorizing federal prosecutions of thefts and embezzlement
from programs receiving substantial federal support even if
the property involved no longer belonged to the federal
government.” 

federal funds.” 

Relying upon the statute’s
“expansive, unqualified language, both as to the bribes
forbidden and the entities covered,” 

and “the broad
definition of the ‘circumstances’ to which the statute applies,”
the Court found “no textual basis for limiting the reach of the
bribery prohibition,” 

The Court held the statute was
unambiguous on this point because it would “be ‘plain to
anyone reading the Act’ that the statute encompasses the
conduct at issue,” 

(quoting Gregory v. Ashcroft, 

, 467 (1991)).

        The Court next addressed Section 666 in Fischer v.
United States, 

(2000). At issue was whether
Medicare payments paid to a hospital constituted federal
“benefits” for the purposes of Section 666(b). 

The
petitioner argued the qualifying patient was the sole
beneficiary of payments made under the Medicare program
and that hospitals were merely being compensated for services
rendered. See 

The Court disagreed, holding that a
federal assistance program can have multiple beneficiaries, and
that participating health care organizations were also
beneficiaries under the Medicare program. See 

The Court reasoned, in part, that “[c]oupled with the broad
substantive prohibitions of subsection (a), the language of
subsection (b) reveals Congress’ expansive, unambiguous
intent to ensure the integrity of organizations participating in
federal assistance programs.” 

       Finally, in Sabri v. United States, 

(2004),
the Supreme Court addressed another challenge to Section
666’s bribery provision. The petitioner argued, inter alia, that
Section 666(a)(2) could “never be applied constitutionally
because it fails to require proof of any connection between a




                              43
bribe or kickback and some federal money.” 

The
Court disagreed, holding that the Necessary and Proper Clause
gives Congress the power “to see to it that taxpayer dollars
appropriated under [its Spending Clause] power are in fact
spent for the general welfare, and not frittered away in graft or
on projects undermined when funds are siphoned off or corrupt
public officers are derelict about demanding value for dollars.”

The Court thus held “[i]t is certainly enough that
the statutes condition the offense on a threshold amount of
federal dollars defining the federal interest, such as that
provided here.” 

To confirm its understanding of
the statute, the Court relied upon the same legislative history
we discussed extensively in Cicco:

       For those of us who accept help from legislative
       history, it is worth noting that the legislative
       record confirms that § 666(a)(2) is an instance of
       necessary and proper legislation. The design
       was generally to ‘protect the integrity of the vast
       sums of money distributed through Federal
       programs from theft, fraud, and undue influence
       by bribery,’ see S.Rep. No. 98-225, p. 370
       (1983), in contrast to prior federal law affording
       only two limited opportunities to prosecute such
       threats to the federal interest: 18 U.S.C. § 641,
       the federal theft statute, and § 201, the federal
       bribery law. Those laws had proven inadequate
       to the task. The [federal theft statute] went only
       to outright theft of unadulterated federal
       funds . . . .

the statute was intended to address
offenses involving fraud and theft, the Court held that




                               44
“Congress was within its prerogative to protect spending
objects from the menace of local administrators on the take.”

        Defendants’ reliance on United States v. Thompson, 

(7th Cir. 2007), is also misplaced. In that case,
Thompson, a Wisconsin state procurement official, was
prosecuted for steering a contract to a local travel agency,
allegedly in violation of state procurement statutes and
regulations. See 

The government’s theory had
been that Thompson “‘intentionally misapplie[d]’ more than
$5,000 by diverting it” away from the firm that should have
been selected under the state’s procurement regulations. 

The Seventh Circuit was not convinced that Thompson’s
decision actually violated the state’s regulations. See 

And it observed that, unlike “[a]pproving a payment
for goods or services not supplied,” her conduct “d[id] not
sound like ‘misapplication’ of funds.”              

Significantly, the firm she selected was actually the low bidder,
and “[t]he federal government saved money because of
Thompson’s decisions.” 

Circuit turned to the
statute’s caption—“Theft or bribery concerning programs
receiving Federal funds”—because “the word ‘misapplies’ is
not a defined term.” 

that caption and the Rule
of Lenity, the Seventh Circuit adopted a more narrow reading
of intentional misapplication “that limits § 666 to theft,
extortion, bribery, and similarly corrupt acts.” 

further commented it did not believe a state official’s violation
of state regulations and statutes—even if intentional—would
violate Section 666 “unless the public employee is on the take.”

is distinguishable. Thompson applied the
state’s procurement regulations in a way that actually saved the
federal government money and caused no loss. Defendants, on
the other hand, lied in order to obtain public employee labor
from fourteen Port Authority employees. They forced the Port
Authority to pay unnecessary overtime to toll workers and
diverted well-paid professional staff away from legitimate Port
Authority business. Their fraud is soundly within the scope of
conduct Congress sought to proscribe in Section 666.

        We hold that, at a minimum, the Government offered a
valid theory that Defendants fraudulently obtained, knowingly
converted, or intentionally misapplied the labor of Port
Authority employees, and that it offered evidence sufficient to
sustain Defendants’ convictions.

       It is well established that public employees’ labor is
property for the purposes of Section 666. See, e.g., United
States v. Sanderson, 

, 189 (6th Cir. 1992)
(concluding the defendant’s “theft of employee time [wa]s as
much a theft of property as his theft of [physical property], for
the purposes of his section 666(a)(1)(A) conviction”); accord
United States v. Genova, 

, 758–59 (7th Cir. 2003)
(affirming conviction under Section 666(a)(1)(A) where the
defendant used public works employees for political labor);
United States v. Delano, 

, 729 (2d Cir. 1995)
(holding indictment sufficiently detailed instance of theft of
“the labor of [the defendant’s] employees”).

       We have explained, in addressing Defendants’
sufficiency challenge to the wire fraud counts, how they
defrauded the Port Authority of the labor of fourteen public
employees—eleven toll collectors paid overtime and three




                               46
professional staff members—in furtherance of the scheme.
Those public employees spent hours doing work that was
unnecessary and furthered no legitimate Port Authority aim.
Defendants were able to obtain these employees’ labor only by
lying about the purpose of the realignment, claiming they were
conducting a traffic study.

       Defendants argue they could not have misapplied Port
Authority employee labor because they did not receive a
“personal pecuniary benefit.” Baroni Br. at 27. We disagree.
Defendants had Port Authority employees do work they would
not have otherwise done to further their personal scheme. The
fact Defendants sought to benefit politically, not monetarily,
does not alter the fact they forced the Port Authority to pay toll
workers overtime, and diverted the time of salaried
professional staff, in furtherance of no legitimate purpose. Cf.
Genova, 

–59 (explaining that “the point of the
§ 666 prosecution is that political activities are not the
performance of a garbage collector’s official duties,” and that
while “Public Works employees were entitled to unpaid leave
for political endeavors[,] the § 666 problem was paying them
for that time”).

       Defendants     argue    this    interpretation   raises
constitutional vagueness concerns. We disagree. At trial, the
Government introduced evidence that, after Jersey City Mayor
Steven Fulop declined to endorse Governor Christie, the
Governor’s office directed state agencies (including the Port
Authority) to cancel meetings with Fulop and otherwise ignore
him. In seeking to admit this evidence, see Fed. R. Evid.
404(b), the Government argued there was no danger of unfair
prejudice because “[t]he mistreatment of Mayor Fulop, while
hardly reflective of good government, was not criminal and




                               47
thus, was less serious than the criminal conduct for which
Defendants stand accused, conduct that needlessly imperiled
public safety in Fort Lee and directly inconvenienced
thousands of people.” J.A. 259–60. Defendants contend it is
not clear why their mistreatment of Mayor Sokolich is
criminal, but their mistreatment of Mayor Fulop was not, and
that “[t]his inconsistency demonstrates the inherent
arbitrariness of the government’s interpretation of Section
666.” Baroni Br. at 40. Defendants again conflate motive with
conduct. While their decision to punish Mayor Fulop may
have been animated by the same desire to exact political
revenge, there were no allegations they defrauded their
federally funded employer in order to do so.

        Defendants also raise federalism concerns, arguing the
Government is improperly attempting “to police state and local
officials in the conduct of their official duties.” Baroni Br. at
36. As we have observed, Congress has a uniquely significant
interest in safeguarding the Port Authority, an interstate agency
created by its consent. But we also believe federalism
arguments are especially inapposite in the context of Section
666. We have described how Congress enacted Section 666
specifically to bring state and local officials within the scope
of the federal criminal theft law. And as the Supreme Court
has observed, “Congress was within its prerogative to protect
spending objects from the menace of local administrators.”

.

      In sum, the Government presented evidence sufficient
to prove Defendants fraudulently obtained, knowingly
converted, or intentionally misapplied Port Authority
employee labor in violation of Section 666(a)(1)(A).




                               48
                               2.

        Finally, Defendants contend there was insufficient
evidence to meet the $5,000 threshold because the Port
Authority employees’ wages are exempt under 18 U.S.C.
§ 666(c)’s safe harbor for bona fide compensation, and the
Government quantified only $3,696 in toll workers’ wages.
They also assert the costs the Port Authority incurred in
redoing the legitimate Center and Lemoine traffic study cannot
satisfy the $5,000 threshold because they were not aware of the
study and the costs represent consequential damages, not the
value of misapplied property.16

     The District Judge rejected these arguments, concluding
“the Government introduced evidence that Defendants

16
   We note the jury was also instructed it could consider “the
value of the affected real property, including the lanes and toll
booths as measured by the amount of tolls generated during the
lane and toll booth reductions.” J.A. 5110–11. In summation,
the Government directed the jury to evidence demonstrating
that the sole remaining Special Access Lane collected “well in
excess of $5,000” during the week of the realignment. J.A.
5297. Defendants did not challenge the sufficiency of this
evidence in their post-trial motions and do not raise the issue
on appeal. And they concede “the lanes and tollbooths can
qualify as ‘property’ for” Section 666. Kelly Br. at 40. This
alone seemingly forecloses any argument the $5,000 threshold
was not satisfied. But because our affirmance of Defendants’
Section 666 convictions rests on their theft of employee labor,
and the Government presented sufficient evidence the value of
that labor exceeds $5,000, we decline to decide the issue.




                               49
diverted Port Authority personnel to do work that was not part
of the agency’s ‘usual course of business’ when reconfiguring
the access lanes,” and that “[t]he jury could reasonably find
that the value of compensation paid to Port Authority
personnel, losses from a ruined traffic study, and the value of
the lanes and toll booths were not bona fide and satisfied the
$5,000.00 threshold.” J.A. 58.

         Without reaching the other costs presented to the jury
(i.e., the value of the lanes and toll booths themselves, and the
costs of redoing the Center and Lemoine traffic study), we hold
the Government presented sufficient evidence that Defendants
fraudulently obtained more than $5,000 worth of public
employee labor.

       As to the cost of compensating overtime toll booth
workers, the Government introduced, and Riva testified to,
detailed payroll records showing eleven overtime toll booth
workers were paid $3,696.09. The Government presented this
number to the jury on a chart and reminded them of the specific
figure in summation.

       As to the value of the time of Port Authority
professional staff, and of Baroni and Wildstein themselves, the
Government also presented witness testimony and detailed
payroll records.17 On the first day of trial, payroll records for

17
   In its brief, the Government asserts it “established that the
lane diversion required $5,524.93 in pro-rated salaries of [Port
Authority] employees to implement, and that is before the
value of time Baroni and Wildstein spent on their mission to
gridlock Fort Lee and cover up the reasons for that gridlock.”




                               50
the relevant Port Authority employees were admitted by
stipulation. These records indicate an hourly rate of $43.79 for
Hwang, $52.11 for Chung, $47.24 for Patel, $79.59 for
Wildstein, and $153.67 for Baroni. Based on these rates and
the hours Hwang, Chung, and Patel testified they worked on
the sham traffic study, the evidence shows their time was
valued at $437.90 ($43.79 x 10 hours), $729.54 ($52.11 x 14
hours), and $661.36 ($47.24 x 14 hours), respectively.


Gov’t Br. at 47 (citing J.A. 650–51). In support of this figure,
the Government cited its post-trial sentencing memorandum.
That memorandum contains a chart quantifying, inter alia, the
cost of labor provided by Hwang, Chung, Patel, the additional
toll collectors, and Baroni and Wildstein. The source of these
calculations was unclear, however, because the chart contains
no citations to the trial record.

At oral argument, the Government explained the calculations
were established at trial through Port Authority payroll records,
which had been admitted into evidence by stipulation, and
testimony from Hwang, Chung, Patel, and Wildstein about
how many hours each had worked on the fraudulent traffic
study.

Following oral argument, we requested the Government to file
a supplemental letter brief addressing, with citations to the trial
record, the evidence it presented to the jury to establish the
property subject to the Section 666 counts is valued at $5,000
or more. We further ordered the Government to attach any
relevant trial exhibits or stipulations it had not previously
submitted. We also allowed Defendants to file a joint
response. The Government timely filed its brief, and
Defendants filed a joint response.




                                51
Cumulatively, the three Port Authority traffic engineers
provided unnecessary labor valued at approximately
$1,828.80. The value of the work done by Hwang, Chung,
and Patel, taken with the $3,696.09 spent on overtime toll
workers, satisfies the $5,000 threshold.

       Furthermore, based on Wildstein’s testimony about the
amount of time he and Baroni spent in furtherance of the
scheme, the value of their time was, at a minimum, $4,294.80.
This figure reflects approximately $1,989.75 for Wildstein’s
time ($79.59 x 25 hours) and $2,305.05 for Baroni’s time
($153.67 x 15 hours).

     The Government reminded the jury of this evidence in
summation:

      Based on Port Authority payroll records and
      testimony you’ve heard, about $5,000 in Port
      Authority salaries were paid for the time in
      connection for the lane reduction work
      performed by Tunnels, Bridges and Terminals,
      Miss Hwang, Mr. Chung, traffic engineering Mr.
      Patel, as well as for Mr. Baroni and Mr.
      Wildstein’s time spent to facilitate and conceal
      causing traffic problems in Fort Lee. Those
      service[s] were wasted. Those services were
      wasted for these lane reductions meant to punish
      the Mayor.

J.A. 5295–96. Accordingly, we conclude the
Government presented to the jury evidence sufficient to
satisfy the $5,000 threshold.




                             52
        Defendants argue this compensation cannot count
toward the threshold under the statute’s exemption for “bona
fide salary, wages, fees, or other compensation.” 18 U.S.C.
§ 666(c). According to Defendants, “all of the Port Authority
staff responsibly performed actual work, in good faith, for
facially legitimate Port Authority purposes.” Kelly Br. at 38.
The Government responds this argument is “a red herring”
because “Defendants fraudulently obtained and misapplied the
services of [Port Authority] staff, not those employees’
salaries.”18 Gov’t Br. at 45. “But the best way of measuring

18
  The Government made this distinction at trial.         In its
summation, the Government argued:

      The defendants also agreed to misuse the time
      and the services of Port Authority employees.
      Those services have value. They’re worth
      money. And that’s Port Authority money. The
      Port Authority money that was paid to those
      employees. And because the Port Authority paid
      the salaries of each of the employees who wasted
      their time in furtherance of the defendants’
      scheme to punish the Mayor. And that includes
      the salary paid to the overtime toll booth
      collectors for the one remaining toll booth that
      was accessible to Fort Lee. That also includes
      the money paid to Baroni and Wildstein
      themselves while they spent time wasting,
      wasting their time in furtherance of this
      conspiracy. When they were suppose[d] to be
      working to advance the Port Authority’s
      interests. And it includes money paid to the




                             53
the value of those services,” according to the Government,
“was to calculate what portion of those employees’ salaries
covered the time they spent unwittingly carrying out
Defendants’ vendetta.” 

       Section 666(c) has no application to the services of the
eleven overtime toll booth workers, Hwang, Chung, or Patel.
The Government offered evidence Defendants fraudulently
obtained those public workers’ services and labor; their
salaries are merely a measure of the loss incurred by the Port
Authority when it compensated those individuals for
unnecessary, sham work. See United States v. Valentine, 

, 465 (6th Cir. 1995) (holding “the plain language of
[Section 666(c)] does not preclude prosecution” where there is
“no allegation concerning [the defendant’s] own salary, nor the
salary of others,” and “the government presented proof that
[the defendant] misappropriated employee services”).

       The charges involving the compensation paid to Baroni
and Wildstein themselves are different, however. The
accusation is essentially that they did not earn their salaries in
good faith by accepting payment for time spent defrauding
their employer, so their compensation for that time could not
have been “bona fide.” Section 666(c) thus could apply to
exempt compensation paid to Baroni and Wildstein. “Whether


       engineers who wasted time—and Port Authority
       professional staff, who wasted time collecting
       data that no one ever wanted.

J.A. 5194.




                               54
wages are bona fide and earned in the usual course of business
is a question of fact for the jury to decide.” United States v.
Williams, 

, 909 (5th Cir. 2007); accord United
States v. George, 

, 62–63 (1st Cir. 2016).

       In this case, the judge instructed the jury that “[p]roperty
does not include bona fide salary, wages, fees or other
compensation paid or expenses paid or reimbursed in the
ordinary course of business,” and that “[c]ompensation for an
employee’s time and services obtained through deception is
not legitimate or bona fide.” J.A. 5110. This instruction
allowed the jury properly to exclude Baroni and Wildstein’s
compensation under Section 666(c) only if it found they were
both bona fide and paid in the usual course of business.

       Because the jury in this case was provided only a
general verdict form, we do not know how it determined the
$5,000 threshold was satisfied. The wire fraud convictions
suggest the jury did not find Baroni and Wildstein’s
compensation “bona fide.” See Black’s Law Dictionary 210
(10th ed. 2014) (defining “bona fide” as “in good faith; without
fraud or deceit”). But even if the jury determined Baroni and
Wildstein’s compensation was subject to the Section 666(c)’s
safe harbor, the value of the services of the eleven toll workers
and of Hwang, Chung, and Patel—which was not subject to
that exemption—was sufficient to satisfy the statute’s $5,000
threshold.

      In light of our holding, we need not address Defendants’
argument the frustrated Center and Lemoine traffic study is not
cognizable property under Section 666.

                            *   *    *




                                55
        Because the Government offered evidence at trial
sufficient to prove Defendants fraudulently obtained the labor
of Port Authority employees, and that the value of that labor
exceeded $5,000, Defendants’ sufficiency challenge must fail.

                               IV.

       Defendants also challenge the jury instructions on the
Section 666 counts and the District Judge’s refusal to instruct
the jury it was required to find Defendants intended to punish
Mayor Sokolich.

        Where, as here, a party has timely objected to the trial
court’s jury instructions, we exercise plenary review in
determining whether the jury instructions stated the proper
legal standard. See United States v. Shaw, 

, 449–
50 (3d Cir. 2018). “We must ‘conclude beyond a reasonable
doubt that the jury verdict would have been the same absent
the error’” for the error to be harmless. United States v. Elonis,

, 597–98 (3d Cir. 2016) (quoting Neder v. United
States, 

, 19 (1999)). Our inquiry “is not whether, in
a trial that occurred without the error, a guilty verdict would
surely have been rendered, but whether the guilty verdict
actually rendered in this trial was surely unattributable to the
error.” Sullivan v. Louisiana, 

, 279 (1993).

                               A.

       Defendants raise three challenges to the jury
instructions on the Section 666 counts. They argue we should
vacate and remand their convictions because the District Judge
erred in instructing the jury: (1) to consider the value of the
Center and Lemoine study in determining whether the $5,000




                               56
threshold was satisfied; (2) that the Government did not need
to prove Defendants knew of the specific property fraudulently
obtained, knowingly converted, or intentionally misapplied;
and (3) that “[t]o intentionally misapply money or property”
means to intentionally use money or property “knowing that
the use is unauthorized or unjustifiable or wrongful,” J.A.
5109. Because any error was harmless beyond a reasonable
doubt, we will affirm.

                               1.

       Defendants contend that, even if there is evidence
sufficient to prove Section 666 violations, we should vacate
their convictions and remand for retrial because the District
Judge erroneously instructed the jury to consider the value of
the Center and Lemoine traffic study. Because we can affirm
Defendants’ convictions solely on the value of public
employee labor, we need not reach the Center and Lemoine
study.

        We have already detailed the trial evidence establishing
the value of the public employees’ labor in addressing
Defendants’ sufficiency challenge. Our analysis there focused
on whether the record, viewed in the light most favorable to the
Government, provided a sufficient basis for a rational juror to
convict. But our inquiry here is different. Defendants contend
that, even if the record contained sufficient evidence that the
value of public employee labor exceeded $5,000, we cannot be
certain beyond a reasonable doubt the jury actually considered
all of that time in light of its instructions. We disagree. No
reasonable juror could have failed to credit the value of Port
Authority employee labor Defendants used to effect their




                              57
fraudulent scheme, which alone             satisfies   Section
666(a)(1)(A)(i)’s $5,000 threshold.

       Defendants do not assert any error in the jury
instructions as to the value of the public employee labor, and
we find none. The Government presented overwhelming and
undisputed evidence—which we described in analyzing
Defendants’ sufficiency challenge—concerning the amount of
time Port Authority employees spent in furtherance of
Defendants’ scheme.

        As to the cost of compensating overtime tollbooth
workers, the Government introduced, and Riva specifically
testified to, detailed payroll records showing eleven overtime
tollbooth workers were paid $3,696.09. The Government
presented this number to the jury on a chart and referenced it
in summation.

       The Government also elicited testimony from three
members of the Port Authority’s professional staff—Hwang,
Chung, and Patel—about the time they spent collecting traffic
data on the realignment, in furtherance of no legitimate Port
Authority purpose, and testimony from Wildstein about the
time he and Baroni spent in furtherance of the scheme.
Detailed payroll records reveal the value of the traffic
engineers’ time was approximately $1,828.80.

       Defendants argue we cannot be confident the jury
considered the traffic engineers’ time because it was not
presented a full calculation of the value of their hourly rate
multiplied by the hours they claimed to have worked on the
sham study. We disagree. The parties admitted the relevant
payroll records by stipulation, the Government elicited




                             58
testimony to establish the number of hours worked, and it
reminded the jury of this evidence in summation, estimating
that the value of the engineers’ and Baroni and Wildstein’s
time exceeded $5,000—which is correct. The amount was
over $6,000.

       Accordingly, the value of the work performed by
Hwang, Chung, and Patel, taken together with the $3,696.09
spent on overtime toll workers, satisfies the $5,000 threshold.
The time Baroni and Wildstein spent plotting their fraud
represents an additional $4,295.

       Because the jury was instructed “[c]ompensation for an
employee’s time and services obtained through deception is
not legitimate or bona fide,” and the Government presented
overwhelming evidence Defendants fraudulently obtained Port
Authority employee services, the jury necessarily found all the
toll worker and professional staff time satisfied the $5,000
threshold and was not subject to Section 666(c)’s exclusion for
bona fide compensation. As noted, even if the jury did not
credit Baroni and Wildstein’s compensation, the value of
employee time Defendants obtained nonetheless exceeds
$5,000.

        Defendants’ convictions on the wire fraud counts
confirm this conclusion. The jury found Defendants defrauded
the Port Authority and conspired to do so. The only fraudulent
scheme before them was one to cause a traffic blockage in Fort
Lee by conducting a sham traffic study.              There is
overwhelming evidence that the bridge lanes were altered,
eleven toll collectors worked additional overtime hours as a
result, and the traffic study was conducted with the help of
several well-paid Port Authority engineers. Defendants do not




                              59
argue the study was not conducted. At trial, they asserted they
did not know it was a sham or barely participated in it—an
argument the jury roundly rejected. Indeed, the jury was
instructed that, if it found the Defendants believed the traffic
study was legitimate, it was a complete defense. On appeal,
they argue Baroni had the authority to conduct the study even
if it was a sham. The jury could not have concluded that
Defendants conspired to conduct a sham traffic study but then
ignored the value of the employee labor necessary to effect that
fraudulent scheme. As we have explained, the jury was
presented with overwhelming and undisputed evidence
demonstrating the value of the toll workers’ and professional
staff’s time exceeds $5,000.

                               2.

       Next, Defendants contend the District Court erred in
instructing the jury it did not need to know of the specific
property obtained. Defendants raise this argument to challenge
the inclusion of the Center and Lemoine study in the jury
instructions. Although we agree the instruction was erroneous,
the error was harmless.

       The District Judge instructed the jury:

       The Government does not have to prove that the
       Defendants knew of the specific property
       obtained by fraud, knowingly converted, or
       intentionally misapplied, or that the value of the
       property met or exceeded $5,000.

J.A. 5110. This addition to the Third Circuit’s Model Jury
Instruction was proposed by the Government. In proposed draft




                              60
jury instructions submitted to the trial court, the Government
“propose[d] keeping [this] language” on the following basis:

       As this Court recognized in denying Defendants’
       motions to dismiss the Indictment, the $5,000
       requirement is a “jurisdictional element.” United
       States v. Baroni, Crim. No. 15-193, 

, at *7 (D.N.J. June 13, 2016) (citing
       United States v. Briston, 192 F. App’x 84, 85 (3d
       Cir. 2006)). The Third Circuit has long held that
       a defendant’s “knowledge of . . . jurisdictional
       fact[s]” is “irrelevant.”      United States v.
       Crutchley, 

, 1201 (3d Cir. 1974);
       see also United States v. Moyer, 

,
       208 (3d Cir. 2012) (“[i]t is well settled that mens
       rea requirements typically do not extend to the
       jurisdictional elements of a crime”) (quotation
       omitted).

J.A. 495. At the charging conference, Defendants objected to
this addition and requested the judge instruct the jury it had to
be “at least reasonably foreseeable what property would be
obtained.” J.A. 4993. The Government responded that
“[r]easonably foreseeable goes to mens rea, which the Third
Circuit has held clearly does not extend to the jurisdictional
elements of statutes like 666.” J.A. 4993. The judge agreed
and declined to instruct the jury the property at issue had to be
reasonably foreseeable to Defendants. J.A. 4994.

       Defendants argue this was error because the “Section
666’s jurisdictional element is the requirement that the victim
be a federal program beneficiary,” and that “[t]he $5,000
threshold is a de minimis exception, below which Congress




                               61
simply chose not to authorize prosecution.” Baroni Br. at 73;
see 

(Thomas, J., dissenting)
(describing “[t]he jurisdictional provision of 18 U.S.C. §
666(b)”).      We agree Section 666(b) is the statute’s
jurisdictional provision in the sense that this provision provides
the jurisdictional hook “tying the proscribed conduct to the
area of federal concern delineated by the statute,” United States
v. Feola, 

, 695 (1975), here Congress’s Spending
Clause power, see 

. But Section
666(a)(1)(A)(i)’s requirement that the value of affected
property be at least $5,000 can be described as jurisdictional in
the sense that it is a “jurisdictional floor” below which
Congress has determined there is insufficient federal interest in
prosecution.

       In any event, the affected property is not part of Section
666(a)(1)(A)(i)’s $5,000 requirement. That provision requires
only that the property “is valued at $5,000 or more.” 18 U.S.C.
§ 666(a)(1)(A)(i). The property is the direct object of the
conduct element, Section 666(a)(1)(A), which provides that
one who “embezzles, steals, obtains by fraud, or otherwise
without authority knowingly converts to the use of any person
other than the rightful owner or intentionally misapplies,
property” violates the statute. 

        While the jury need not have found that Defendants
knew the value of the property, it was error for the trial judge
to instruct the jury “[t]he Government d[id] not have to prove
that the Defendants knew of the specific property obtained by
fraud, knowingly converted, or intentionally misapplied.” J.A.
495. Such an instruction runs the risk of negating the statute’s
mens rea requirement and thus relieving the Government of its
burden of proof on an essential element of the crime. We do




                               62
not believe, for example, one could intend to misapply
something one does not know exists; to instruct the jury
otherwise would seemingly dispense with the intent
requirement.

      But because we need not reach nor credit the Center and
Lemoine study to affirm Defendants’ convictions, the error
was harmless. There is overwhelming evidence Defendants
knew of the property fraudulently obtained or intentionally
misapplied, including the work of fourteen of Baroni’s
subordinates at the Port Authority.

                             3.

        Defendants next challenge the District Judge’s
definition of intentional misapplication as ambiguous. We
disagree. Following the Third Circuit Model Jury Instruction,
the judge instructed the jury:

      To intentionally misapply money or property
      means to intentionally use money or property of
      the Port Authority knowing that the use is
      unauthorized or unjustifiable or wrongful.
      Misapplication includes the wrongful use of the
      money or property for an unauthorized purpose,
      even if the use actually benefitted the Port
      Authority.

J.A. 5109. Defendants argue that “unjustifiable or wrongful”
is overbroad and ambiguous. Defendants raised this same
argument in pretrial motions and at the charging conference.
The Government responded these are common terms and have
been used in numerous intentional misapplication cases going




                             63
back decades. Kelly’s lawyer suggested that the judge “just
define what unjustifiable and wrongful are,” but when asked
for proposed definitions, had nothing to offer. J.A. 4992. The
judge overruled Defendants’ objection because the terms are
not “inherently vague” and were not “strong legal term[s].”
J.A. 4992.

       On appeal, Defendants argue these terms are so broad
that the jury could have convicted if it believed the lane
realignment was “a bad idea,” unjustifiable “as a policy
matter,” or that Baroni should have sought Executive Director
Foye’s approval. Kelly Br. at 35 (emphasis omitted). We
disagree.

        Other instructions in the District Judge’s thorough and
comprehensive charge foreclose the possibility the jury
convicted defendants for lawful but imprudent conduct, e.g.,
because the jury thought the lane reductions were “a bad idea.”
These include the requirement that $5,000 worth of property
be stolen or misapplied and that the misapplication be “for an
unauthorized purpose.” The judge also told the jury that it had
to be convinced beyond a reasonable doubt that the purpose of
the lane reductions was not a legitimate traffic study and that
Defendants’ good faith would be a complete defense to the
charges. See J.A. 5141–42. Because the jury was instructed
that Defendants could not be convicted if they believed in good
faith that the reductions were part of a legitimate traffic study,
a jury following its instructions could not have convicted
Defendants based on its personal judgments about the wisdom
and execution of the traffic study.

      Moreover, we observe that this definition, or even
broader language, is contained in the model jury instructions in




                               64
several of our sister circuits. It is included verbatim in the
Section 666 pattern jury instructions from the Eighth Circuit.
8th Cir. Model. Crim. Jury Instr. § 6.18.666A. The First
Circuit’s 18 U.S.C. § 656 (theft, embezzlement, or
misapplication by bank officer or employee) pattern
instructions define “willful misapplication” to include “that
[defendants] wrongfully used the bank’s funds” without further
clarifying what “wrongfully” means. 1st Cir. Model. Crim.
Jury Instr. § 4.18.656. The Ninth and Tenth Circuits both have
pattern instructions for statutes containing “willful
misapplication” that do not define those terms at all. See 9th
Cir. Model. Crim. Jury Instr. § 8.41; 10th Cir. Model Crim.
Jury Instr. § 2.32. Jurors are regularly trusted to understand the
meaning of these ordinary words in criminal cases.

                               B.

       Defendants also challenge the District Judge’s refusal to
instruct the jury it needed to find Defendants intended to
punish Mayor Sokolich in order to convict. They contend this
error affects every count and constructively amended the
indictment, “permit[ing] the jury to convict based on conduct
that was not unlawful.” Baroni Br. at 63. We disagree.

       Defendants requested the object of the conspiracy be
defined throughout the jury charge as one “to misuse Port
Authority property to facilitate and conceal the causing of
traffic problems in Fort Lee as punishment of Mayor
Sokolich.” E.g., J.A. 501–04, 506. The trial court disagreed,
ruling “the purpose or the object of the conspiracy being to
punish Mayor Sokolich goes to motive,” which is “not an
element of the crime” and so “not an element that has to be
proven.” J.A. 5009.




                               65
       During deliberations, the jury sent a note asking: “Can
you be guilty of conspiracy without the act being intentionally
punative [sic] toward Mayor Socholich [sic].” J.A. 648. The
judge responded: “Yes. Please consider this along with all
other instructions that have been given to you.” J.A. 648.

       In their post-trial motions, Defendants argued the
punishment of Mayor Sokolich was “an essential element of
each of the charged offenses,” and that the failure to instruct
the jury on this point relieved the Government of its burden of
proof. J.A. 50. The trial judge again disagreed, explaining that
“any punitive goal Defendants may have had goes to their
motive for violating the charged statutes, [but] is not an
essential element of any of the crimes charged.” J.A. 50. We
agree.

       Defendants argue the “intent to punish Sokolich [is] an
essential element of the mens rea of the charged offenses.”
Baroni Br. at 58. Once again, Defendants conflate motive with
mens rea intent and conduct. As we recently explained in
Hassan v. City of New York:

       [T]here’s a difference between “intent” and
       “motive.” “[A] defendant acts intentionally
       when he desires a particular result, without
       reference to the reason for such desire. Motive,
       on the other hand, is the reason why the
       defendant desires the result.” 2 Harry Sanger
       Richards et al., American Law and Procedure §
       8, at 6 (1922). In other words, “intent” asks
       whether a person acts “intentionally or
       accidentally,” while “motive” asks, “If he did it




                              66
       intentionally, why did he do it?” 1 John William
       Salmond, Jurisprudence § 134, at 398 (7th
       ed.1924) (emphasis in original); see also Black's
       Law Dictionary 881 (Bryan Garner ed., 10th ed.
       2014) (“While motive is the inducement to do
       some act, intent is the mental resolution or
       determination to do it.”). This fundamental
       “distinction between motive and intent runs all
       through the law.” Johnson v. Phelan, 

, 155 (7th Cir.1995) (Posner, C.J., concurring
       in part and dissenting in part).

, 297 (3d Cir. 2015).

        The District Judge properly instructed the jury, for
example, that to find Defendants guilty of wire fraud, the
Government was required to prove they “knowingly devised a
scheme to defraud or to obtain money or property by materially
false or fraudulent pretenses, representations, or promises,”
and that they “acted with intent to defraud.” J.A. 5119. This
describes the conduct proscribed by the statute and the required
mens rea. The intent to punish Mayor Sokolich may explain
Defendants’ motive—why Defendants intended to defraud the
Port Authority in this case—but it is distinct from mens rea and
is not a required element of any of the charged offenses. See,
e.g., Pointer v. United States, 

, 417 (1894) (“The
absence of evidence suggesting a motive for the commission
of the crime charged is a circumstance in favor of the accused,
to be given such weight as the jury deems proper; but proof of
motive is never indispensable to conviction.”); United States v.
Sriyuth, 

, 747 n.12 (3d Cir. 1996) (“[M]otive is
always relevant in a criminal case, even if it is not an element
of the crime.”); cf. United States v. Davis, 

, 244




                              67
(3d Cir. 1999) (“It is clear that the parties involved in this
intrigue had different motives. . . . Davis contends that this
disproves a conspiracy. We disagree. If they all agreed to
interfere with a pending judicial proceeding, they are guilty
of conspiracy. That is the difference between motive and
intent.”); United States v. Harrison, 

, 756 (10th
Cir. 1991) (“The goals of all the participants need not be
congruent for a single conspiracy to exists, so long as their
goals are not at cross purposes.” (quoting United States v.
Maldonado-Rivera, 

, 963 (2d Cir. 1990))).

       Indeed, following the Third Circuit Model Jury
Instructions, the District Judge charged the jury on this critical
difference between motive and intent:

       Intent and motive are different concepts. Motive
       is what prompts a person to act. Intent refers
       only to the state of mind with which the
       particular act is done. Personal advancement and
       financial gain, for example, are motives for much
       of human conduct. However, these motives may
       prompt one person to intentionally do something
       perfectly acceptable, while prompting another
       person to intentionally do an act that is a crime.
       Motive is not an element of the offense with
       which a defendant is charged. Proof of bad
       motive is not required to convict. Further, proof
       of bad motive alone does not establish that the
       defendant is guilty. And proof of good motive
       alone does not establish that the defendant is not
       guilty. Evidence of the defendant’s motive may,
       however, help you to determine his or her intent.




                               68
J.A. 5139; 3d Cir. Model. Crim. Jury Instr. § 5.04. The judge
specifically instructed the jury that evidence of motive may be
relevant to establishing mens rea, thus allowing a juror who
found evidence of motive lacking to vote for acquittal.
Defendants were free to argue—and did argue—that they were
not motivated by any desire to punish Mayor Sokolich. The
jury’s guilty verdict necessarily demonstrates no juror found
motive so lacking as to raise a reasonable doubt concerning
Defendants’ guilt. Moreover, as we have explained, the
comprehensive and thorough jury charge created no risk that
Defendants were convicted on the basis of lawful conduct.

       And while the grand jury included language describing
Defendants’ motive to punish the mayor in the indictment, that
language—which did not describe an essential element of the
charged offense—was merely surplusage. Because the jury
instructions did not modify the essential elements of the
offenses as charged in the indictment, there was no
constructive amendment. See United States v. Repak, 

, 257–58 (3d Cir. 2017) (“An indictment is constructively
amended when, in the absence of a formal amendment, the
evidence and jury instructions at trial modify essential terms of
the charged offense in such a way that there is a substantial
likelihood that the jury may have convicted the defendant for
an offense differing from the offense the indictment returned
by the grand jury actually charged.” (quoting United States v.
Daraio, 

, 259–60 (3d Cir. 2006))).

       Accordingly, we find no error in these instructions or
the District Judge’s response to the jury’s question.

                          *    *     *




                               69
       Because Defendants’ sufficiency challenges to their
wire fraud and Section 666 offenses fail, and because we find
any error in the jury instructions was at worst harmless, we will
affirm Defendants’ judgments of convictions as to the wire
fraud and Section 666 offenses. We now turn to the civil rights
counts.

                                V.

        Finally, Defendants challenge the sufficiency of Counts
8 and 9 of the indictment. In those counts, the grand jury
charged Defendants with conspiring to violate, and
substantively violating, the civil rights of Fort Lee residents. It
alleged “[t]he object of the conspiracy was to interfere with the
localized travel rights of the residents of Fort Lee for the
illegitimate purpose of causing significant traffic problems in
Fort Lee to punish Mayor Sokolich,” J.A. 124, and that
Defendants “knowingly and willfully deprived the residents of
Fort Lee of the rights, privileges, and immunities secured by
the Constitution and laws of the United States, namely, the
right to localized travel on public roadways free from
restrictions unrelated to legitimate government objectives,”
J.A. 127. Defendants argue the substantive due process right
the grand jury identified—“the right to localized travel on
public roadways free from restrictions unrelated to legitimate
government objectives”—is not clearly established and thus
cannot form the basis of the civil rights offenses charged in
Counts 8 and 9.

       Defendants’ attack on the sufficiency of Counts 8 and 9
of the indictment is a legal question over which our review is
plenary. See 

n.7. “[W]hether the
alleged violation of substantive due process was clearly




                                70
established . . . is a question of law over which our review is
unrestricted.” Mammaro v. N.J. Div. of Child Protection &
Permanency, 

, 168 (3d Cir. 2016).

       Section 241 makes it a crime for “two or more persons
[to] conspire to injure, oppress, threaten, or intimidate any
person in any State, Territory, Commonwealth, Possession, or
District in the free exercise or enjoyment of any right or
privilege secured to him by the Constitution or laws of the
United States,” and Section 242 makes it a crime for a person
“under color of any law, statute, ordinance, regulation, or
custom, to willfully subject[] any person in any State,
Territory, Commonwealth, Possession, or District to the
deprivation of any rights, privileges, or immunities secured or
protected by the Constitution or laws of the United States.” 18
U.S.C. §§ 241–42.

        “[I]n lieu of describing the specific conduct it forbids,
each statute’s general terms incorporate constitutional law by
reference.” United States v. Lanier, 

, 265 (1997).
The statutes’ scope is limited to “rights fairly warned of,
having been ‘made specific’ by the time of the charged
conduct.” 

The Supreme Court has held that “the
object of the ‘clearly established’ immunity standard is not
different from that of ‘fair warning’ as it relates to law ‘made
specific’ for the purpose of validly applying” the criminal civil
rights statutes. 

Accordingly, we apply the same test
as in qualified immunity cases, asking whether the right
allegedly deprived was clearly established. See 

Defendants moved to dismiss the
indictment, arguing that there is no constitutional right to
localized travel on public roadways and that, even if such a




                               71
right did exist, it had not yet been clearly established. As the
District Court noted when denying the motion, our Court
recognized a Fourteenth Amendment due process right to
intrastate travel nearly three decades ago. See Lutz v. City of
York, 

, 268–70 (3d Cir. 1990). Specifically, in
reviewing a city ordinance that prohibited cars from driving
three or more times through certain overcrowded streets during
evening hours, see 

we held there is “[a] due process
right of localized movement on the public roadways,” 

which we alternately described as “the right to move
freely about one’s neighborhood or town, even by
automobile,” 

We further held no other constitutional
provision could provide the source of the right. See 

68 (rejecting Article IV Privileges and Immunities Clause,
Fourteenth Amendment Privileges or Immunities Clause,
rights of national citizenship, Commerce Clause, and
Fourteenth Amendment Equal Protection Clause theories). We
nonetheless upheld the ordinance because it was narrowly
tailored to meet the significant city objectives of protecting
public safety and reducing intense traffic congestion. 

        Contrary to the District Court’s holding, however, and
according to the Supreme Court’s qualified immunity
precedent, Lutz alone could not have put Defendants on notice
that they were violating a constitutional right. “A Government
official’s conduct violates clearly established law when, at the
time of the challenged conduct, ‘the contours of a right are
sufficiently clear’ that every ‘reasonable official would have
understood that what he is doing violates that right.’” L.R. v.
Sch. Dist. of Phila., 

, 248 (3d Cir. 2016) (quoting
Ashcroft v. al-Kidd, 

, 741 (2011)). “To determine
whether the right is clearly established, we look at the state of




                               72
the law when the [conduct] occurred,” Fields v. City of Phila.,

, 361 (3d Cir. 2017), here 2013. The Supreme
Court has suggested that a single binding case from the
defendant’s jurisdiction is insufficient to give notice that
certain conduct could lead to criminal punishment. See Carroll
v. Carman, 

, 350 (2014). Instead, “[w]e look
first to applicable Supreme Court precedent.” 

–48. A relevant Supreme Court holding ends the inquiry.
“[I]f none exists, it may be possible that a ‘robust consensus of
cases of persuasive authority’ in the Court[s] of Appeals could
clearly establish a right for purposes of qualified immunity.”

(quoting 

).

       The Supreme Court has never recognized an intrastate
travel right. Far from a “robust consensus” in the Courts of
Appeals that the right exists, the law across the circuits is
uncertain. And most often our sister circuits have considered
the matter in reviewing challenges to municipal residency
requirements, not government action prohibiting free
movement in public spaces, undermining the notice those
opinions might have provided to Defendants as to the criminal
nature of their conduct.

      In addition to our opinion in Lutz,19 the First, Second,
and Sixth Circuits have recognized a right to intrastate travel,
though they have described it at varying levels of generality.
See Cole v. Hous. Auth. of City of Newport, 

, 809

19
  We earlier recognized the right in Wellford v. Battaglia, 

, 1152 (3d Cir. 1973) (per curiam), where we struck
down a durational residency requirement for mayoral
candidates because it burdened potential candidates’
fundamental “right to travel.”




                               73
(1st Cir. 1970) (striking down city’s two-year durational
residency requirement for low-income housing on equal
protection grounds for violating the “right to travel”); King v.
New Rochelle Mun. Hous. Auth., 

, 648–49 (2d Cir.
1971) (striking down five-year durational residency
requirement for admission to municipality’s public housing on
equal protection grounds for violating a “right to travel within
a state”); Johnson v. City of Cincinnati, 

, 495,
502–05 (6th Cir. 2002) (favorably citing Lutz to hold a city
ordinance banning persons convicted of drug crimes from
“drug-exclusion zones” violated the due process “right to
travel locally through public spaces and roadways”).20

        On the other hand, the Fourth, Fifth, Seventh, Eighth,
and Tenth Circuits have treated the question more skeptically,
often hesitating to recognize a due process intrastate travel
right and sometimes explicitly rejecting theories rooted in
other constitutional provisions. See Eldridge v. Bouchard, 

, 753–55 (W.D. Va. 1986) (rejecting challenge to
regional salary differential for police officers, in part, because
“the plaintiffs do not have a federally recognized fundamental
right to intrastate travel” rooted in the Privileges or Immunities
Clause of the Fourteenth Amendment, though suggesting an
intrastate travel right may be implicated in durational residency
cases), aff’d, 

(4th Cir. 1987); Qutb v. Strauss, 

, 492 (5th Cir. 1993) (upholding juvenile curfew
ordinance even “assum[ing] without deciding that the right to
move about freely [in public] is a fundamental right,” noting

20
  The Government cites Cole v. City of Memphis, 

(6th Cir. 2016), as also recognizing the right, but this case post-
dates the conduct at issue and could not have provided fair
notice here. See 

.




                                74
“under certain circumstances, minors may be treated
differently from adults”); Wright v. City of Jackson, 

, 903–04 (5th Cir. 1975) (upholding fire department’s
continual residency requirement because it offended no
fundamental right to intrastate travel); Andre v. Bd. of Trustees
of Vill. of Maywood, 

, 53 (7th Cir. 1977) (declining
to “consider whether a right of intrastate travel should be
acknowledged” because town’s new continual residency
requirement for public employment was not durational);
Townes v. City of St. Louis, 

, 735–36 (E.D.
Mo. 1996) (holding ordinance blocking access to one city
intersection to reduce crime would not violate due process
intrastate travel right, assuming it exists), aff’d, 

(8th Cir. 1997); D.L. v. Unified Sch. Dist. No. 497, 

, 776 (10th Cir. 2010) (per curiam) (rejecting substantive
due process challenge to school district’s continual residency
requirement because “the constitutional rights at issue apply
only to interstate travel, and the travel that Plaintiffs claim was
restricted was intrastate travel”).

        The D.C. Circuit is internally conflicted but has not yet
set precedent. A plurality of the Court sitting en banc
suggested a due process right to intrastate travel might exist but
did not reach the question. See Hutchins v. D.C., 

,
538 (D.C. Cir. 1999) (en banc) (plurality opinion)
(acknowledging “a hypothetical municipal restriction on the
movement of its citizens, for example, a draconian curfew,
might bring into play the concept of substantive due process,”
but declining to find a fundamental right implicated by a
juvenile curfew ordinance, in part because juveniles do not
have the same rights as adults). In separate opinions, another
plurality concluded a right to intrastate travel exists and ought
to be subject to intermediate scrutiny. See 

n.1




                                75
(Rogers, J., concurring in part and dissenting in part) (listing
views expressed by each presiding judge on the “fundamental
right to movement”).

        Simply put, although four circuits (including our own)
have found some form of a constitutional right to intrastate
travel, there is hardly a “robust consensus” that the right exists,
let alone clarity as to its contours. Although Lutz is both clear
and binding in our jurisdiction, this area of law as a whole is
far from settled. Based on the Supreme Court’s qualified
immunity precedent, we hold the District Court erred in
concluding Lutz, standing alone, provided fair warning that
Defendants conduct was illegal, especially in view of the state
of the law in our sister circuits. See 

.
“[W]hether or not the constitutional rule applied by the court
below was correct, it was not ‘beyond debate.’” 

(quoting Stanton v. Sims, 

, 10–11 (2013) (per
curiam)).

        Accordingly, we will reverse and vacate Defendants’
civil rights convictions and remand with instructions to dismiss
Counts 8 and 9 of the indictment under Federal Rule of
Criminal Procedure 12(b). See 

–47.
Because we reverse and vacate Defendants’ convictions, we
need not reach their arguments concerning the jury instructions
on the civil rights counts.

                               VI.

       For the foregoing reasons, we will affirm Defendants’
judgments of convictions as to the wire fraud and Section 666
counts (Counts 1 through 7), and we will reverse and vacate
only as to the civil rights counts (Counts 8 and 9). Because we




                                76
have reversed and vacated two counts of the indictment, we
will vacate Defendants’ sentences on the remaining counts of
convictions.21 We will remand with instructions to dismiss

21
   The Supreme Court has explained that resentencing is
appropriate where Defendants successfully appeal some but
not all of the counts of conviction:

      [Sentencing package] cases typically involve
      multicount indictments and a successful attack
      by a defendant on some but not all of the counts
      of conviction. The appeals court, in such
      instances, may vacate the entire sentence on all
      counts so that, on remand, the trial court can
      reconfigure the sentencing plan to ensure that it
      remains adequate to satisfy the sentencing
      factors in 18 U.S.C. § 3553(a). In remanded
      cases, the Government relates, trial courts have
      imposed a sentence on the remaining
      counts longer than the sentence originally
      imposed on those particular counts, but yielding
      an aggregate sentence no longer than the
      aggregate sentence initially imposed. Thus the
      defendant ultimately may gain nothing from his
      limited success on appeal, but he will also lose
      nothing, as he will serve no more time than the
      trial court originally ordered.

Greenlaw v. United States, 

, 253–54
(2008) (citations omitted); United States v. Hodge, 

, 188 (3d Cir. 2017) (remanding “for requisite
resentencing” where some, but not all, counts of
convictions were vacated).




                             77
only Counts 8 and 9 of the indictment and to resentence
Defendants on the remaining counts of conviction.




                          78