On March 8, 2024, the United States Court of Appeals for the Second Circuit issued an opinion reversing the dismissal of the three top counts in the indictment of Brian Benjamin, New York’s then-sitting Lieutenant Governor: federal programs bribery (in violation of 18 U.S.C. §666(a)(1)(B)), honest services wire fraud (in violation of 18 U.S.C. §§1343 and 1346), and a conspiracy to commit those crimes. See, United States v. Benjamin, 95 F.4th 60 (2024). These bribery charges all stemmed from allegations that in exchange for campaign contributions that Harlem real estate developer Gerald Migdol made to Benjamin’s unsuccessful campaign for New York City Comptroller, Benjamin agreed to use, and did use, his power as a sitting state senator in an effort to direct state funds to a non-profit organization Migdol ran.

Judge J. Paul Oetken of the Southern District of New York had dismissed these counts before trial, a step rarely taken in a federal criminal case, on the ground that the indictment did not even allege certain facts that the government was legally required to prove in order to sustain the bribery claims. Specifically, Judge Oetken held that the indictment was insufficient on its face because: a) it did not allege that there had been an explicitly stated “quid pro quo” agreement between Migdol and Benjamin; and b) such an allegation (and ultimately proof) of an expressly stated quid pro quo agreement was legally required in a case where the alleged “quid,” meaning the bribe payment, was a campaign contribution. Judge Oetken also held that in non-campaign contribution cases, by contrast, proof (and therefore an allegation) of an expressly stated quid pro quo agreement was not required; instead, in non-campaign contribution cases proof of the necessary quid pro quo agreement could instead be inferred by the jury from evidence of all the facts and circumstances before it.