UPDATE: Bridgegate attorneys now look to U.S. Supreme Court after appeal denied
A federal appeals court today upheld a major part of the convictions of two members of former Gov. Chris Christie's inner circle in the high-profile Bridgegate scandal of political retribution that played out five years ago on the world's busiest bridge.
However, the U.S. Court of Appeals for the Third Circuit in Philadelphia threw out a part of the case dealing with civil rights violations against the two former Christie associates.
The ruling will likely mean that both Bill Baroni and Bridget Kelly will now face prison. Both have remained free since their trial pending the appeal. Both must first be re-sentenced, with the court's reversal of the civil rights charges.
In its 78-page ruling, the court said federal prosecutors presented evidence sufficient to prove that the two fraudulently obtained the labor of public employees, and in a harsh rebuke, said there was no "legitimate justification" for Baroni and Kelly's conduct.
A spokesman for the U.S. Attorney's office said it was "reviewing the opinion and is grateful for the court's consideration of all of the issues raised in the appeal."
Kelly's attorney, Michael Critchley of West Orange, said he intended to petition the U.S. Supreme Court to review the case.
"While we are pleased that the Third Circuit rejected the civil rights charges, we are disappointed that the court did not similarly reject the government's unprecedented application o the wire fraud and misapplication statutes. We still believe that the remaining charges are not legally sustainable," he said.
Michael A. Levy of Sidley Austin, who handled Baroni's appeal, also said further appellate options were under consideration.
"What remains from this unprecedented prosecution are convictions only for the supposed misapplication of a few thousand dollars of Port Authority resources over less than one week. We disagree that any resources were misapplied and are evaluating further appellate options," he said.
Baroni, the former deputy executive director of the Port Authority of New York and New Jersey, and Kelly, a single mother of four who served as Christie's deputy chief of staff, were convicted in November 2016 in an outlandish, only-in-Jersey game of political hardball, involving the unauthorized shutdown of several local access lanes to the toll plaza of the George Washington Bridge.
Prosecutors said they conspired to cause massive traffic jams in Fort Lee as payback against Mayor Mark Sokolich, after he stepped back from an expected endorsement during Christie's re-election campaign.
But the bizarre, dirty tricks campaign came to light after outraged motorists stuck in historic traffic congestion on local streets around the bridge led to a special legislative inquiry, and later a federal criminal investigation.
Baroni and Kelly were ultimately found guilty of conspiring to misuse public resources to create a choke point, "to pursue a purely personal vendetta."
The appeals court agreed. In its ruling, the court said Baroni and Kelly "altered the bridge's decades-old lane alignment -- without authorization and in direct contravention of Port Authority protocol -- for the sole purpose of creating gridlock in Fort Lee."
The court noted that to "execute their scheme, they conscripted 14 Port Authority employees to do sham work in pursuit of no legitimate Port Authority aim."
It added that the fact Baroni and Kelly were politically motivated did not make what they did a non-criminal act, adding that there was no legitimate justification for their conduct.
The criminal case was built around a rarely used provision of a fraud statute that makes it a crime to "misapply" property of federal aid recipients. It charged that Baroni and Kelly intentionally misapplied the property or money of the Port Authority.
David Wildstein -- a former Republican political strategist and Port Authority patronage appointee who claimed his singular mission was to advance the governor's agenda at the bi-state agency -- was the key witness for the prosecution. He admitted to hatching the lane-closure plan for political purposes, and ultimately pleaded guilty and testified against Baroni and Kelly.
Christie, who has repeatedly denied any advance knowledge of the scheme, was never charged of any wrongdoing or involvement--although the episode and the criminal investigation it sparked would haunt his ill-fated campaign for president.
Baroni and Kelly both took the stand on their own behalf. But the most damning evidence in the case might have been the now-infamous "time for some traffic problems in Fort Lee" email sent by Kelly to Wildstein less than a month before the unexpected shutdown of several toll lanes at George Washington Bridge for nearly a week in September 2013.
A jury of seven women and five men heard from 35 witnesses and found both guilty after a seven-week trial in Newark. Baroni, 46, was sentenced to 24 months in prison. Kelly, who is 45, was sentenced to a term of 18 months. They have both remained free on bail while their appeals were argued. Wildstein was given probation and now writes a New Jersey political blog.
In their appeal, Baroni and Kelly argued their actions didn't amount to criminal conduct under the law and challenged the instructions that U.S. District Judge Susan Wigenton, who presided over the closely watched case, gave to the jury.
At the heart of the case was a statute known as Section 666 of Title 18 of the federal criminal code, which charged that they knowingly converted and intentionally misapplied property of an organization receiving federal benefits.
It is a charge typically used against those who steal money from an anti-poverty agency or some other entity that gets federal funds and misuses the fund. In this case, prosecutors acknowledged it was the hook that made the toll lane shutdowns at the bridge for political purposes a federal crime. The Port Authority, which manages the George Washington Bridge, receives funding from Washington.
"I'm not here to convince the court that the underlying conduct in this case was a model of public service," Kelly's lawyer Yaakov Roth told the appellate court during oral arguments in April. "I'm here to convince the court that the conduct did not violate the specific federal criminal statutes at issue."
In court briefs, defense attorneys said that the government's theory of the case would criminalize not just "fraudulent" political spin, "but earmarks, patronage, favoritism, redistricting, and many other practices blending politics with governance that, for better or worse, have been the currency of electoral democracy from time immemorial."
They argued that even if the motivation for realigning the lanes at the bridge was in fact to punish the Fort Lee mayor for not endorsing Christie, that was not a crime under federal law. They also maintained that the bridge lanes still were being used for a public purpose and did not benefit either defendant.
Baroni's attorney Michael Levy told judges Thomas Ambro, Anthony Scirica and Eugene Siler Jr. that their conduct from a moral perspective may have been "bad, wrongful and unjustifiable," but said that was not the standard for a federal crime.
"This was bad conduct in search of a criminal theory for how to prosecute it," he remarked.
However, the court said Congress intended Section 666 to focus on offenses involving fraud and theft, and "intended to expand the federal government's prosecutorial power to encompass significant misapplication of federal funds at a local level."
The arguments also focused on whether there was a right to intrastate travel, which was a basis for the charges of civil rights violations upon which both Kelly and Baroni were convicted.
"The right to intrastate travel is not clearly established," Roth told the court.
In its ruling, the Third Circuit said "there is hardly a 'robust consensus'" the the right to interstate travel exists, and it reversed the civil rights convictions of Baroni and Kelly.
Read the Third Circuit ruling here:
Ted Sherman may be reached at tsherman@njadvancemedia.com. Follow him on Twitter @TedShermanSL. Facebook: @TedSherman.reporter. Find NJ.com on Facebook.