U.S. v. Jefferson, 1:07cr209.

• Decision Date: 23 May 2008
• Docket Number: No. 1:07cr209.,1:07cr209.
• Court: U.S. District Court — Eastern District of Virginia
• Parties: UNITED STATES of America v. William J. JEFFERSON, Defendant.

Page 687

562 F.Supp.2d 687

UNITED STATES of America v. William J. JEFFERSON, Defendant.

No. 1:07cr209.

United States District Court, E.D. Virginia, Alexandria Division.

May 23, 2008.

Mark Lytle, United States Attorney's Office, Alexandria, VA, Charles E. Duross, U.S. Department of Justice, Washington, DC, Rebeca H. Bellows, United States Attorney's Office, Alexandria, VA, for United States of America.

Amy Berman Jackson, Robert Powel Trout, Gloria B. Solomon, Trout Cacheris-PLLC, Washington, DC, for William J. Jefferson.

MEMORANDUM OPINION

T.S. ELLIS, III, District Judge.

The government, in a sixteen-count indictment (the "Indictment"), charges defendant William J. Jefferson, a sitting member of the United States House of Representatives, with a variety of crimes including conspiracy, wire fraud, violating the Foreign Corrupt Practices Act, money laundering, obstructing justice, racketeering, and soliciting bribes. Defendant has moved to dismiss the Indictment's bribery counts, Counts 3 and 4, on the ground that these counts fail to allege facts establishing a necessary element of bribery in violation of 18 U.S.C. § 201 (1994). Specifically, defendant argues that the Indictment does not identify any "official act" performed by defendant in return for any thing of value. Defendant also seeks dismissal, derivatively, of Counts 1 and 2 (conspiracy), 5-10 (wire fraud), 12-14 (money laundering), and 16 (racketeering), to the extent that those counts are predicated on the bribery violations alleged in Counts 3 and 4.

For the reasons that follow, the Indictment's bribery allegations are sufficient and defendant's motion must be denied.

I.

Defendant is the currently sitting member of the United States House of Representatives representing Louisiana's 2nd Congressional District, an office he has held since 1991. The Indictment alleges that beginning in or about January 2001, defendant used his office to advance the business interests of various individuals and corporations in return for money and other things of value paid either directly to defendant or via `nominee companies,' i.e., companies ostensibly controlled by one of defendant's family members, but in fact controlled by defendant himself. The specific schemes alleged in the Indictment are described in greater detail in an earlier Memorandum Opinion. United States v. Jefferson, 534 F.Supp.2d 645 (E.D.Va. 2008). At issue here are the two bribery schemes alleged in Counts 3 and 4.

Count 3 alleges that defendant solicited bribes from Vernon Jackson, president of iGate, Incorporated (iGate), a Louisville, Kentucky-based telecommunications firm, to promote iGate's telecommunications technology in certain African countries. Specifically, the Indictment alleges that in or about January 2001, defendant informed Jackson that defendant would use his congressional office to promote iGate's business interests only if Jackson agreed to make payments to ANJ Group, L.L.C. (ANJ), a Louisiana company controlled and managed by defendant's spouse, Andrea Jefferson. Defendant allegedly prepared a "professional services agreement" that provided for payments from iGate to ANJ in the form of (i) monthly $7,500.00 payments, (ii) a percentage of iGate's income, and (iii) stock options. In return for these payments, defendant allegedly advanced iGate's business interests by, inter alia, corresponding and meeting with Nigerian, Ghanian and American government officials (including an unnamed Member of Congress who at the time sat on the House Subcommittee on Telecommunications, Trade, and Consumer Protection) all for the purpose of persuading these persons to take steps to support iGate's business ventures in Africa.

Count 4 alleges that defendant solicited bribes from Lori Mody, an Alexandria, Virginia-based businesswoman, to promote the business interests in Africa of Mody's African companies IBBS and W2-IBBS. Specifically, the Indictment alleges that defendant introduced Mody to Jackson as a potential investor in iGate's telecommunications technology. After Mody and Jackson entered into an investment agreement, defendant allegedly requested payments from Mody, in the form of (i) fees, (ii) shares in W2-IBBS, and (iii) monthly payments to defendant's family members. In return for these payments, defendant allegedly advanced Mody's business interests by, inter alia, corresponding and meeting with Nigerian, Ghanian, and American government officials to persuade them to take steps in support of Mody's business ventures.

At issue here is the legal sufficiency of these bribery counts. Defendant contends that the counts must be dismissed because they fail to allege any "official acts," an essential element of a bribery charge. The government contends that the counts are sufficient. The matter has been fully briefed and argued and is now ripe for disposition.

II.

An indictment is legally sufficient if (i) it contains the elements of the offense charged and informs the defendant of the charges he must meet, and (ii) it identifies the offense conduct with sufficient specificity to allow the defendant to plead double jeopardy should there be a later prosecution based on the same facts. Russell v. United States, 369 U.S. 749, 763-64, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962). The second prong of this sufficiency inquiry is not in issue here; there is no dispute that the Indictment is "a plain, concise, and definite written statement of the essential facts constituting the offense charged" as required by Rule 7(c)(1), Fed.R.Crim.P. Nor is there any dispute that the Indictment identifies the offense conduct with ample specificity. What is sharply disputed is the first prong of the legal sufficiency inquiry, namely whether the facts alleged satisfy each of the requisite statutory elements of a bribery offense.

Analysis of this question properly begins with an examination of the statutory language that defines the charged violation. Counts 3 and 4 charge defendant with bribery, in violation of 18 U.S.C. § 201(b)(2)(A), which states, in pertinent part:

"Whoever, being a public official or person selected to be a public official, directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally or for any other person or entity, in return for being influenced in the performance of any official act [shall be guilty of an offense]."

An indictment charging bribery must therefore allege each of the following elements: (i) that the defendant is a public official, and (ii) that defendant corruptly demanded, sought, received, accepted, or agreed to receive or accept (iii) anything of value (iv) in return for being influenced in the performance of (v) an official act.

The parties do not dispute that the Indictment's allegations are legally sufficient as to the first four offense elements. Thus, the Indictment alleges that defendant (i) is a public official—a Member of Congress—(ii) who corruptly demanded, sought, received, accepted, or agreed to receive or accept (iii) things of value— money and company stock—(iv) in return for being influenced in the performance of certain acts to promote or advance the business of iGate (Count 3) and of IBBS and W2-IBBS (Count 4) in Nigeria and Ghana. . The focus of the parties' dispute over the Indictment's legal sufficiency is whether the acts defendant allegedly performed in return for things of value constitute "official acts" under the statute. More precisely, the question presented is whether (i) official travel to Nigeria and Ghana, (ii) correspondence and meetings with foreign government officials, (iii) correspondence and meetings with American government officials, and (iv) use of congressional staff, all to advance iGate's, IBBS's, and W2-IBBS's business ventures in Africa, are "official acts" under § 201. In defendant's view, none of these acts is an "official act" within the meaning of the bribery statute. Instead, defendant argues that they are merely routine, legal uses of defendant's influence to promote private business ventures. At issue, therefore, is the scope of the statutory definition of "official act." For the reasons that follow, the Indictment's allegations of the "official act" element of a bribery offense are adequate at this stage of the prosecution.

III.

The bribery statute defines an "official act" as

"any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official's official capacity, or in such official's place of trust or profit."

18 U.S.C. § 201(a)(3). Judicial elucidation of the bribery statute has established the following principles. First, the Supreme Court has cautioned that "a statute in this field that can linguistically be interpreted to be either a meat axe or a scalpel should reasonably be taken to be the latter."¹ The meaning of this caution is plain: Courts are not authorized to construe the bribery statute to sweep within its ambit all manner of seemingly venal or corrupt conduct by public officials. Rather, courts must confine the scope or reach of the statute as required by the reasonable meaning of the statutory language. In other words, where the statutory language is capable of either broad or narrow application, courts must apply that language with the precision of the scalpel, not the blunt force of the meat axe.

This cautionary rule is particularly important with regard to "official acts," for without it the definition of "official acts" might be extended to apply to any action taken by a public official acting in his official capacity. To avoid such a broad interpretation, courts have held that an act must satisfy two criteria to qualify as an "official act" under § 201. First, the act must be among the official duties or among the settled customary duties or practices of the official charged with bribery.²...