United States v. Robert Henon

• Court: Court of Appeals for the Third Circuit
• Decided: May 29, 2024
• Docket: 23-1463
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

No. 23-1463 ____________

UNITED STATES OF AMERICA

v.

ROBERT HENON, Appellant ____________

On Appeal from the United States District Court For the Eastern District of Pennsylvania (District Court No. 2-19-cr-00064-002) District Judge: Honorable Jeffrey L. Schmehl ____________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) on May 3, 2024 ____________

Before: KRAUSE, CHUNG, and AMBRO, Circuit Judges

(Filed: May 29, 2024) ____________

OPINION* ____________

CHUNG, Circuit Judge.

Robert Henon challenges his convictions on various charges related to benefits he

* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. received in exchange for taking official action. For the reasons that follow, we will

affirm the District Court’s judgment of conviction.1

I. DISCUSSION

Henon was convicted of honest services wire fraud, federal program bribery, and

conspiracy to commit said crimes, all in relation to alleged political corruption during his

tenure as a member of the Philadelphia City Council.2 The Government alleged that

Henon and John Dougherty, the Business Manager of the International Brotherhood of

Electrical Workers Local 98 (“Local 98”),3 formed an implicit, corrupt quid pro quo

agreement in which Henon received a salary and benefits from Local 98 in exchange for

performing official acts for Dougherty on an as-needed basis. The Government also

alleged that Henon accepted a bribe in the form of a campaign contribution from Jim

Gardler, the Head of the Communications Workers of America (CWA) Local 13000.

1 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). 2 The Government charged Henon with twenty counts, including honest services wire fraud in violation of 18 U.S.C. §§ 1343, 1346; honest services mail fraud in violation of 18 U.S.C. §§ 1341, 1346; federal program bribery in violation of 18 U.S.C. § 666(a)(1)(B), and conspiring to commit those offenses in violation of 18 U.S.C. § 371. The jury found Henon guilty of seven counts of honest services wire fraud for official acts taken in furtherance of his corrupt quid pro quo agreement with John Dougherty, one count of honest services wire fraud for accepting a bribe in the form of the campaign contribution in exchange for taking official action, one count of federal program bribery for accepting the campaign contribution, and one count of conspiracy. The Government dismissed two counts, and the jury acquitted Henon on the remaining eight counts. Because we write for the parties, we recite only the facts and theories pertaining to the counts of conviction. 3 Business Manager is the “highest-ranking member” of the union. Appendix (“A”) 14.

2 A. Quid Pro Quo Agreement with Local 98

Evidence at the two-month trial established that Local 98 had employed Henon

since 1989, first as an apprentice, then as an electrician, and later as the Political Director.

In 2011, Henon won a seat on the Philadelphia City Council and continued to hold

private employment at Local 98, which he disclosed as required. At that time, Local 98

replaced Henon as Political Director, reduced his salary, and listed his position title as

“office” on its annual reports to the Department of Labor, with 50% of his work

categorized as “general overhead” and 50% as “administration.”4 Appendix (“A”) 4357–

58. In contrast, Henon reported his position title as “electrician.” A4360–4366. No

evidence in the record reflects that he did any electrician work for the union during his

years on City Council, however. Furthermore, there was evidence that Dougherty kept

Henon on Local 98’s payroll to be “his man on the inside” and that Henon performed no

actual work for the union. A15–16. See also A4241–42 (Dougherty stating that Henon is

“on my payroll”); A4263–65 (call from Dougherty to Henon stating, “I made a little

adjustment in your… [money] this month.”).

Henon now challenges his conviction on the eight counts (honest services wire

fraud and conspiracy) related to the quid pro quo agreement with Dougherty. Relying on

4 Henon argued at trial, and reasserts on appeal, that his union work included supporting Local 98’s political office, supporting campaigns, and attending AFL-CIO meetings. Local 98’s annual reports, however, categorized 0% of his work as “representational activities” and “political activities and lobbying.” A4357–58. In any case, the jury was free to reject Henon’s argument.

3 McCormick v. United States, 500 U.S. 257 (1991)5, Henon argues for the first time on

appeal that the District Court should have required the Government to prove, or should

have instructed the jury to find, that Henon “explicitly agreed” to perform official acts in

exchange for his compensation. Opening Br. at 38. He argues that proof of this

additional element is necessary because, as a member of the City Council, he was

permitted to receive compensation for outside employment. In his view, the failure to

require this additional element effectively allows lawful compensation to be converted

into an unlawful bribe whenever an “official takes an act that happens to align with the

interests of his outside employer.” Id. at 43; see also McCormick, 500 U.S. at 272–73.

Henon argues that he preserved this “proof of explicit agreement” argument before

the District Court when he asserted that the Government did not prove his Local 98 salary

was paid in exchange for the official acts charged. We disagree. Though the issue

Henon raised before the District Court may be similar, the argument he asserted was

different. United States v. Joseph, 730 F.3d 336, 342 (3d Cir. 2013) (explaining

distinction between an issue and an argument); id. at 341 (“[A]rguments rather than

issues are what parties preserve or waive.”). Before the District Court, Henon argued that

the Government’s evidence was insufficient to establish the existence of a quid pro quo

agreement since his employment predated his service on the City Council. Now on

5 In McCormick, the Supreme Court found that proof of an explicit agreement is required when the alleged quid pro quo payments are campaign contributions. 500 U.S. 257, 273 (1991); see also United States v. Allinson, 27 F.4th 913, 919 n.4 (3d Cir. 2022), cert. denied, 143 S. Ct. 427 (2022).

4 appeal, however, Henon argues that the District Court should have required the

Government to prove an additional element per McCormick, an argument and case that

he did not raise before the District Court. This “change[s] the substance of [his]

arguments” before the District Court.6 Id.; see also United States v. Abreu, 32 F.4th 271,

275 (3d Cir. 2022) (argument is preserved only when “it ‘depend[s] on both the same

legal rule and the same facts as the argument presented in the District Court’”) (quoting

Joseph, 730 F.3d at 341–42); United States v. Dupree, 617 F.3d 724, 728 (3d Cir. 2010)

(judges need not “anticipate” arguments; litigants have the duty to “cite relevant

precedents, [and] also to frame the issues for decision”). The fact that Henon did not ask

the District Court to instruct the jury to find that an explicit agreement was formed, nor

object to the instruction given, further supports this conclusion. By failing to raise this

argument before the District Court, Henon did not preserve it, and we thus review it for

plain error. Gov’t of Virgin Islands v. Vanterpool, 767 F.3d 157, 162 (3d Cir. 2014).7

6 Despite Henon’s contention that he relied on the same controlling precedent before the District Court, there is no evidence in the record that Henon ever relied on McCormick or argued that the Government was required to prove an explicit agreement under that precedent other than for quid pro quo campaign contributions. See United States v. Dupree, 617 F.3d 724, 729 (3d Cir. 2010) (noting that failure to cite to cases before the District Court that are “central to the legal argument [a party] … presses on appeal” is “telling”). Moreover, Henon conceded in his motion for acquittal that “a quid pro quo need not be explicit or express” outside of the campaign contribution context. D. Ct. Dkt. No. 253, at 5. We therefore cannot say that Henon gave “the District Court the opportunity to consider the argument [he] now makes.” Dupree, 617 F.3d at 731. 7 Under the plain error standard, “an appellate court may, in its discretion, correct an error not raised at trial only where the appellant demonstrates that (1) there is an error; (2) the error is clear or obvious, rather than subject to reasonable dispute; (3) the error affected the appellant's substantial rights, which in the ordinary case means it affected the

5 We see no plain error. As the Supreme Court and this Court have explained, a

quid pro quo agreement “need not be explicit” except in the campaign contribution

context. McDonnell v. United States, 579 U.S. 550, 572 (2016); see also United States v.

Bradley, 173 F.3d 225, 232 (3d Cir. 1999), corrected, 188 F.3d 98 (3d Cir. 1999); United

States v. Kemp, 500 F.3d 257, 284 (3d Cir. 2007); United States v. Andrews, 681 F.3d

509, 527 (3d Cir. 2012). Henon’s argument advocates for a departure from this

jurisprudence. Consequently, even if Henon were right that an additional element is

required to prove a quid pro quo arrangement under these particular circumstances, the

District Court did not plainly err when it did not sua sponte reach this unestablished legal

conclusion. United States v. Marcus, 560 U.S. 258, 262 (2010) (appellate courts may

only correct errors that are “clear or obvious,” not merely “subject to reasonable dispute”)

(citation and quotation marks omitted); see also United States v. Jabateh, 974 F.3d 281,

299 (3d Cir. 2020) (noting that a novel question of statutory interpretation “is not an

interpretative exercise that falls within the exacting limits” of plain error review). 8

outcome of the district court proceedings; and (4) the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Vanterpool, 767 F.3d at 162 (internal citation and quotation marks omitted). 8 Henon also argues that the evidence was insufficient to establish that he and Dougherty had an implicit quid pro quo agreement. See Opening Br. at 34. As this argument was asserted in a single sentence, id., it is waived on appeal. See Laborers’ Int’l Union of N. Am., AFL-CIO v. Foster Wheeler Energy Corp., 26 F.3d 375, 398 (3d Cir. 1994) (“[A] passing reference to an issue ... will not suffice to bring that issue before this court”) (internal citations and quotations omitted); Fed. R. App. P. 28(a)(8). Further, even if Henon did not waive this argument, a rational jury could have found that the evidence proved beyond a reasonable doubt that Henon and Dougherty implicitly agreed that Henon would receive benefits via a “no-show” job in exchange for official actions on

6 Accordingly, we will affirm.

B. Quid Pro Quo Agreement with CWA Local 13000

The Government also alleged that Henon committed honest services wire fraud

when he formed an explicit agreement to hold a hearing against Verizon in exchange for

a $5,000 campaign contribution from Gardler (who represented Verizon employees in

ongoing labor disputes with the company). Henon argues that the evidence was

insufficient to establish an explicit agreement. Our plenary review of a challenge to the

sufficiency of the evidence “is greatly tempered by giving substantial deference to the

jury’s finding of guilt.” United States v. Lacerda, 958 F.3d 196, 225 (3d Cir. 2020).

Reversal is warranted only “where there is ‘no evidence, regardless of how it is weighted,

from which the jury could find guilt beyond a reasonable doubt.’” Id. (citation omitted).

Here, there was sufficient evidence from which the jury could find that Henon

explicitly agreed to hold a hearing against Verizon in exchange for the campaign

contribution from Gardler, even absent an express statement. See, e.g., United States v.

Benjamin, 95 F.4th 60, 68 (2d Cir. 2024) (“[T]he McCormick explicit quid pro quo

requirement may be met by implication from the official’s and the payor’s words and

actions and need not entail an express statement.”). This evidence included Gardler

calling Henon to complain about Verizon and suggesting that Henon put “pressure” on

Verizon to cast them in a “negative light,” A4282–86, Henon calling Gardler to discuss

the campaign solicitation and the Verizon dispute in back-to-back calls, and Gardler

behalf of Dougherty and Local 98. United States v. Bryant, 655 F.3d 232, 237 (3d Cir. 2011); United States v. Lacerda, 958 F.3d 196, 225 (3d Cir. 2020).

7 stating that he secured the campaign contribution by explaining that “[he] kn[e]w what

[he could] ask Bobby to do for [CWA],” followed immediately with a request that Henon

hold a “public hearing” against Verizon to “make ’em sweat.” A4292–96. While Henon

argues that the jury should have weighed the evidence differently, we will not disturb a

jury’s conclusion merely because it could have reached an alternative one. United States

v. Caraballo-Rodriguez, 726 F.3d 418, 432 (3d Cir. 2013).9 Thus, we will also affirm on

this ground.10

II. CONCLUSION

Because we see no clear error in the District Court permitting proof of an implicit

agreement and we determine that there was sufficient evidence supporting Henon’s

campaign contribution conviction, we will affirm.

9 Henon does not dispute that the District Court properly instructed the jury that it must find that there was “an explicit agreement” and that Henon “agreed to exchange the contribution for explicit specified future official action.” A4056–57. 10 We will also affirm the District Court’s imposition of an in personam forfeiture judgment in this case. See United States v. Vampire Nation, 451 F.3d 189, 201–03 (3d Cir. 2006), abrogation on other grounds recognized in Lacerda, 958 F.3d at 216–17.