A former New York City Councilman is appealing his Federal conviction on several grounds including substantial improprieties in the government’s tactics during its investigation and the questionable applications of state and federal laws by the trial Court.

The federal government manufactured both the crime and criminal jurisdiction where there was none, appellate briefs will contend, which are being prepared now on behalf of Daniel J. Halloran III, a 5th generation native and former prosecutor himself. The 19th District of New York City‘s Councilman for the past 4 years, Halloran will argue that the Government invented a crime and then intentionally twisted state law to create criminal liability where none existed. Some legal experts see numerous problems with the government scheme, including its use of a cell phone with a North Carolina area code by one of their undercover Agents. As it turns out, this out of state phone number was the sole basis for the Federal government to acquire jurisdiction, and it seems to have been chosen for just for that purpose. What was clear from the trial record was that nothing is alleged to have happened outside of New York, begging the question; why was the FBI and Federal Government involved in such an investigation at all?

The manufacturing of jurisdiction by the Federal government violates the “Archer Rule” created by U.S. v. Archer, according to 2nd Circuit Case law. In that case, the federal government attempted to gain jurisdiction in Queens County by having a local prosecutor, allegedly involved in wrongdoing in Queens, make a call New Jersey. Upon review, the Second Circuit ruled that in such cases, where the Federal government fabricates a plan to induce someone to act “interstate” in order to gain federal jurisdiction in a matter which takes place otherwise wholly within a state or locality, it would be barred from being able to prosecute. The parallels to Halloran’s case couldn’t be clearer despite the trial judge’s nearly 200 page decision trying to distinguish the cases and trivialize other legal arguments.

After a grueling 8 week trial, in July 2014 a jury convicted Halloran of conspiracy to commit bribery, two counts of wire fraud and two counts of travel violations, a total of five counts. In March Judge Karas sentenced him to an extraordinary 120 months in prison with restitution of $45,300. That sentence was well beyond any other similar criminal sentences in any Federal Court related to political corruption. The sentence for Halloran, with no priors, in a non-violent crime, involving barely $45,000.00 in alleged money transactions over 9 months, stunned many in the legal community who expected a 60 month sentence at the outside.

Federal legal practioners could not point to a single similarly harsh sentence, especially one for which there was no “completed crime”; and in fact only Assemblyman Brian McLoughlin, convicted of actually taking over $3.1 million in his many years in office, a 20+ count racketeering indictment, that included stealing from the local little league, received a comparable sentence of 10 years. NYS Assemblyman Anthony Seminario, convicted of taking over $400,000.00 received a mere 6 years, and NYS State Senator Kruger, who accepted and steered over $350,000 in bribes received only 7 years. The former governor of Virginia, Robert McDonald recently received a 2 year sentence for his part in a $200,000.00 scheme involving state funds, acting as a state executive. Finally, Bronx born Member Larry Seabrook was convicted just last year and was sentenced to only 4 years, having diverted over $600,000 in New York City money to not-for profit organizations run by friends and family, in 9 counts of a 12 count indictment. Halloran is not accused of taking ANY City funds or causing any to be dispersed unlawfully. The money provided to Halloran came from a “wealthy developer”, actually an undercover Federal Agent, and a local real estate speculator turned government snitch, who was facing his own litany of criminal charges. No city funds were dispersed and no political favors were ever actually traded in Halloran’s case, unlike the many other cases involving public officials garnering far smaller sentences.

Halloran, who is currently under House Arrest, has a 10 p.m. curfew, and is scheduled to self-surrender on June 17 unless a federal appeals court grants his application for bail pending the appeal ruling. Another key issue in his appeal is that the judge gave the jury instructions that would have been impermissible in state court. His instruction was that even if the alleged scheme could not happen, impossibility is not a defense in federal court, almost conceding the scheme alleged by the Government was impossible. However, Halloran’s defense team, and some legal experts contend that the state law bribery charges should have carried with them state law jury charges.

Another significant issue raised both in pretrial motions and now in the appeal is that the federal government and Court has grossly misinterpreted and misapplied the Wilson Pakula Act of 1947, calling an otherwise legal transaction a ‘quid pro quo’ so that prosecutors could obtain a conviction under federal Honest Services Law. As many attorneys noted, the Federal Honest Services statute has been under intense judicial scrutiny for being overbroad. In fact the US Supreme Court has already once ruled the statute Un-Constitutional and Justice Scalia called it a “dangerous slippery slope” that could criminalize legal behavior. As Justice Scalia put it in his Skilling dissent, “even with the bribery and kickback limitation the statute does not answer the question ‘What is the criterion of guilt?’ The Halloran defense team echoed those sentiments. Halloran claimed to be brokering a legitimate political “horse trade” in which Queens State Senator Malcolm Smith, a conservative Democrat would be eligible to participate in the Republican primary for the 2013 NYC Mayoral race. The interest of the NYC Republican leaders in just such a cross endorsement, opening up the Republican Party Primary to several candidates including Senator Smith and former Bronx Borough President, and fellow Democrat Aldolfo Carrion, in addition to the 4 declared Republicans (Joe Lhota, who eventually won the designation, John Catsimitidis, Tom Allen, and George McDonald) was widely reported by numerous news outlets from April to August of 2012. This was long before the FBI and DOJ leadership targeted Smith and Halloran for prosecution. Under New York law, a Wilson Pakula is an authorization given by a political party to a candidate for public office which allows a candidate not registered with that party to petition voters for ballot access in their primary. New York as a “fusion” state permits a candidate to have the support of, and run on, more than one party line on a given ballot.

In his appeal, Halloran’s lawyers note there are substantial questions of whether the federal Travel Act can even be applied to money transactions that were intended to secure a Wilson-Pakula certificate. The Travel Act forbids the use of the U.S. mail, or interstate or foreign travel, for the purpose of engaging in specified crimes. In fact, in an Amicus Curiae brief, the Queens County Republican Party said the federal government unlawfully tied the Wilson-Pakula authorization process to the Travel Act. They specifically pointed out that a “Wilson-Pakula authorizations is not a designation, nomination or appointment, and [therefore] it is not within the reach of the state penal bribery laws.”

When a multimillion dollar swindler-turned government informant, Moses “Mark” Stern, infiltrated Halloran’s campaign for U.S. Congress in August 2012, Court testimony by FBI Agents confirmed that Halloran was neither under federal investigation nor a suspect in any crime at that time. Essentially, the government conceded during trial that Halloran was not under suspicion of any wrong doing whatsoever when they sent informant Stern to meet with him in 2012. Somehow there were no tapes of those initial meetings. Some legal experts question how they were able to go forward with any investigation under those circumstances, as it smacked of entrapment at a minimum.

Halloran lost his 2012 congressional bid to Rep. , whose own father and campaign manager Jimmy Meng was arrested during the campaign and sentenced in March 2013 to a one-month jail term on an $80,000.00 felony bribery conviction. “There was more of a reason to investigate Meng’s campaign for congress than Halloran’s" one political insider noted.

Independent Democrat, Queens State Senator, Malcolm A. Smith, was drawn into negotiations with Stern to petition the Republican Party primary ballot for the 2013 New York City Mayor’s race, meeting with GOP State Chairman Ed Cox, who was not accused of any wrongdoing. They approached, as an additional intermediary, Halloran, who is also a former law enforcement officer, because of his connections in New York City Republican circles as one of the few elected Republicans in the City. Because Smith received neither a promise of appointment to a public office, nor a designation, nor a nomination, there was no ‘quid pro quo’, Appellate briefs contend. “If the Wilson-Pakula Travel Act counts were to fail, the discretionary-fund counts would also be subject to reversal due to the extensive spill-over of evidence from Travel Act charges.” said two prominent lawyers.

Publisher and Editor-in-Chief of Rockland County Times Dylan Skriloff said the government’s key witness is a huge red flag. “Stern who lives in Rockland County is a convicted felon who admitted to illegally bundling hundreds of thousands of dollars to candidates.” One such beneficiary of Stern was NYS Attorney General Eric Schneiderman, who was also not accused of any wrong doing by the FBI. Currently, Stern is facing 490 years in prison on a 24-count federal indictment that includes perjury charges and a $120 million real estate fraud scheme against Citibank and other local New York mortgage banks. “The reality is Stern needed a scapegoat,” said Skriloff.

Wiretaps of Stern’s phone calls, produced in late discovery, revealed he was desperately seeking connections to prominent Republicans and their political campaigns. At trial the names of National Republican figures like Tim Scott, Allen West, Marco Rubio, Mike Huckabee, and local GOP officials like State Chair Ed Cox, State Senator Marty Golden and Congressman Peter King were on the list of those targeted by Stern and his FBI handlers. The Government claimed despite this focus on Republicans that they were not hunting the GOP. Court transcripts further revealed that those same wiretaps showed Stern had access to other phones and email accounts which were not monitored or recorded by the FBI. This window also gave Stern the opportunity to communicate and act without the oversight of the Federal Bureau of Investigation, which he apparently did on several occasions and was reprimanded by his FBI handlers. Interestingly, these facts were only disclosed after the trial had started and were discovered by the defense while cross-examining an F.B.I. agent who admitted to the existence of these previously undisclosed government recordings.

What appeared to be a clear Brady disclosure violation was minimized by the trial judge and no sanction was given to the government for hiding this material in Halloran’s case, although the judge did grant a mistrial to his co-defendants. Halloran, who is the former NY chairman of the Republican Liberty Caucus and a veteran criminal defense attorney has tried many felony cases in state court serving for over 5 years on the 18B Assigned Counsel Felony panel, and explained, “Brady material stems from the U.S. Supreme Court case Brady v. Maryland, in which the Court ruled that suppression by the prosecution of evidence favorable to a defendant who has requested it, violates due process”. While the Court found the material was Brady, it chose to believe the Government when it claimed its failure to produce it was an “accident’ and overlooked by the 20+ man prosecution team.

“Stern introduced himself as a real estate developer with an interest in the mayoral race,” said Halloran. “On a hand-shake I agreed to act as a paid legal consultant.” It took nine months of Stern-churning, before the government accused Halloran of unlawfully taking checks and cash in the aggregate sum of $45,000, he said, thousands of which simply went into his campaign accounts and not his pocket the government admitted at trial. Some legal experts noted that the judge appears to have gone out of his way to excuse several incidents of prosecutorial misconduct; as many as 6,000 calls and 900 hours of recorded conversations were withheld, being the largest example, as well as the gaping holes in the FBI’s handling of Stern as an informant which were only disclosed mid-trial.

During trial, the government also admitted it never scrutinized any collateral sources; such as the not-for-profits allegedly involved, the City Council funding agency, and that they never even wire tapped any of the alleged co- conspirators, despite their lengthy nine-month investigation. In fact, the New York City Council finance office and the board members of all of the NFP’s testified on behalf of Halloran that he never attempted to do any of the things alleged by the government, at any time. Even the government witnesses, Halloran’s alleged co-conspirators who turned state’s evidence like the Bronx and Manhattan GOP chairmen tacitly disclosed in cross examination that Halloran never suggested doing anything illegal to them and that they thought it was strictly legitimate business dealings at the time. The Bronx Chair Jay Savino struck a plea bargain when it was discovered he had been also stealing from the Bronx County organization and had committed tax fraud, and the Manhattan chair Dan Issacs was not charged after Billionaire John Catsimitidis intervened on his behalf before the arrests arranging meetings for him with federal and state prosecutors. During the trial Issacs said, “if Halloran had even suggested that something illegal was going to happen, I would never have gone to the meeting in the first place”.

Some argue that this was a case of selective prosecution – an opportunity for the Democrat appointed on recommendation of Senator Charles Schumer, a former Schumer staffer, U.S. Attorney Preetinder Singh “Preet” Bharara to make a name for himself. Such claims gain more weight when you examine the recent arrests by the same team of Preet Bharata attorneys using the same vague "honest services" Federal statute. First the indictment of Dean Skelos, the Republican leader of the NY State Senate which effectively crippled the GOP in its razor thin margin in controlling that body, and then of NYS Assembly Leader Sheldon Silver, who was Senator Schumer's sole rival for control of the NY State Democratic Party machine. Questions now being circulated indicate Governor Cuomo may be Preet's next target and with him, his relationship to the powerful Independence Party, and particularly the Wilson Pakula he received from them, along with both their ties to the Real Estate Board of New York.

Some also say they may have targeted the Republican Independent Halloran, who was receiving significant media attention for bucking the system, weighing in against the NY Democratic machine and in particular Billionaire Mayor . He had become a staple appearing almost 100 times over 4 years. In fact, some political pundits mused an investigation into former NY Mayor Michael P. Bloomberg’s various campaigns would be more appropriate. Some may recall that in 2009 it was front page news that Bloomberg “bought” the Independence Party line by donating $1 million into its housekeeping account and hiring scores of workers. According to NYC and NYS Campaign Finance filings, the Mayor, having left the GOP in 2005, in order to secure the Republican Party line in 2009, hired numerous Republican leaders from each county, paid $25 to $50,000 per county in jobs, and into Housekeeping accounts, and spent tens of thousands of dollars on jobs for assembly-district level executive committee members of the GOP, to insure their support. This is no different on the other side of the aisle, where frequently the Democratic machine hires its own in campaigns for incumbents and to win over third parties like the Working Families party.

Two term democrat Bronx Council Member G. Oliver Koppel, who also served many years in the NYS Assembly, was Halloran’s colleague in the City Council, and said he was very impressed by Halloran’s independence. “Although registered as a Republican and elected as a Republican he often split from Republican orthodoxy particularly on civil liberties and civil rights issues.” Halloran was concerned about government playing an appropriate role in private life, he said. “He was a strong believer of individual rights. I saw that in his voting record and also in his speaking.”

Since Halloran is an attorney familiar with both Criminal and Election law, Koppell said it seemed out of character that he would be involved in legal problems related to campaign law. “Looking at the issue to some extent in the press, in terms of what Halloran did with Smith who wanted to run on the Republican Party line, I did not see anything wrong with that.” Koppel, who has served as the interim NY Attorney General, said when he was running for state senate last year, he applied to the Working Families Party for a Wilson-Pakula authorization. “If you want to run in the primary you have to get permission by the party leaders.” With five counties in one city, the rule is a three-county majority makes the final decision, he said. While it would be inappropriate if a party leader demanded dollars directly in exchange for the party line, he said there is no problem with hiring those same politicians as consultants with consulting fees. “MANY New York City council members, including Mayor Bill de Blasio, worked for the U.S. senate campaign of Hillary Clinton while they were council members – I am sure it is not illegal.”

“Dan Halloran was a hands-on council member,” said Liza A. Powell, a Bayside resident. “He was there for everything.” She described Halloran as “unbelievably kind and good.” Halloran knew her and many of his constituents by their first names, she said. “As an attorney he offered pro-bono advice – he literally helped people every day.” Halloran was made an example of because he was not politically correct, she said. “Somebody did not want him to succeed – he was doing the right thing for New York.”

The Second Circuit has set an expedited briefing schedule but it may be delayed as Halloran's co-defendants Senator Malcolm Smith and Queen GOP Vice Chairman Vincent Tabone or even State Senator Skelos and Assembly Leader Silver have their cases wind their way up the appellate ladder as well.