(CN) - A former Hamilton, N.J., mayor who had no official authority over the local school board, but took bribes believing he did, cannot overturn his conviction, the 3rd Circuit ruled.
Before he was elected mayor in 2007, and re-elected in 2011, John Bencivengo was close friends with Marliese Ljuba, a woman whose firm served as the insurance broker for the Hamilton Township, N.J., School District.
Ljuba personally earned $600,000 to $700,000 in annual commissions from those contracts.
When the contracts came up for renewal in 2011, however, those commissions were threatened. One school board member, Stephanie Pratico, encouraged the board to place the contracts up for competitive bidding rather than simply renew them.
Bencivengo meantime was facing financial difficulties and asked Ljuba for a $5,000 loan.
Ljuba suggested that instead of paying her back, he could keep the money if he would convince Pratico to drop the idea of putting the contracts up for bid.
Bencivengo agreed to the plan, and accepted a check from Ljuba, with a note on the memo line that said the money was for a "cherry bedroom set."
Later, Ljuba approached Bencivengo with an offer to give him another $5,000 if he would back her picked candidate for school board - a political unknown who was the sister of an insurance company representative. At this point, Ljuba was cooperating with the FBI, and she recorded all her conversations with Bencivengo.
The two agreed that they would exchange the payment on a trip to Atlantic City, so it would seem as though Bencivengo won the money gambling.
Bencivengo was convicted of bribery and sentenced
to 38-months in federal prison.
The 3rd Circuit affirmed Bencivengo's bribery conviction Wednesday, finding that he had de facto
authority over the school board, even without any vote on the board or official role in choosing board members.
"The record is sufficient for a reasonable jury to find that Bencivengo's position as mayor of Hamilton Township gave him influence over members of the school board, and that Ms. Ljuba believed that he had such influence," Judge Marjorie Rendell wrote for a three-judge panel. "Where a public official has, and agrees to wield, influence over a governmental decision in exchange for financial gain, or where the official's position could permit such influence, and the victim of an extortion scheme reasonably believes
that the public official wields such influence, that is sufficient to sustain a conviction under the Hobbs Act, regardless of whether the official holds any de jure
or de facto
power over the decision." (Italics in original.)
Bencivengo's conviction does not depend on whether or not he was capable of putting pressure on Pratico or replacing a school board member, but on Ljuba's belief that he was capable of doing so, the 24-page opinion states.
The court also dismissed Bencivengo's claim that he had been prejudiced before the jury when the trial judge reprimanded his defense counsel during cross-examination.
"The most that can be said is that the district judge admonished defense counsel on several occasions to clarify questions that perhaps did not need to be clarified, as they were clearly understood by Ms. Ljuba," Rendell said.