634 F.Supp.2d 595 (E.D.Va. 2009), 1:07cr209, United States v. Jefferson
|Citation:||634 F.Supp.2d 595|
|Opinion Judge:||T.S. ELLIS, III, District Judge.|
|Party Name:||UNITED STATES of America v. William J. JEFFERSON.|
|Attorney:||Mark Lytle, Rebeca H. Bellows, United States Attorney's Office, Alexandria, VA, Charles E. Duross, U.S. Department of Justice, Washington, DC, for United States of America. Amy Berman Jackson, Robert Powel Trout, Gloria B. Solomon, Trout Cacheris PLLC, Washington, DC, for William J. Jefferson.|
|Case Date:||May 22, 2009|
|Court:||United States District Courts, 4th Circuit, Eastern District of Virginia|
In this multi-count prosecution of William J. Jefferson, a former congressman,1 defendant's threshold attempt to dismiss various bribery-related counts on the ground that the acts alleged fell outside the scope of the federal bribery statute was denied by Memorandum Opinion issued on May 23, 2008.2 Specifically, the May 2008 Opinion rejected defendant's argument that the bribery allegations were legally insufficient with respect to the " official act" element of 18 U.S.C. § 201(b)(2)(A), which prohibits public officials from soliciting things of value in exchange for being influenced in the performance of " official acts." Ten months later, both parties filed motions-the government, a motion for clarification, and defendant, a motion for reconsideration and, in the alternative, to exclude evidence-focusing sharply on the " official act" element of the bribery statute. In essence, the parties argue that the May 2008 Opinion's discussion of that element is open to misinterpretation and must be clarified prior to trial. Defendant additionally argues that evidence of certain acts should be excluded at trial because those acts do not fall within the scope of the " official act" element.
The parties' motions were fully briefed and argued, and in the end, for the reasons stated from the Bench, an Order issued granting the government's motion in part and denying defendant's motion. See United States v. Jefferson, 615 F.Supp.2d 448 (E.D.Va.2009) (Order) (Docket No. 388). This Memorandum Opinion further explains the reasons stated from the Bench. More specifically, although the result reached in the May 2008 Opinion-namely, that the bribery-related counts' allegations fall within the ambit of the bribery statute-is reaffirmed here, the May 2008 Opinion's discussion of the " official act" element is vacated and superseded to the extent it conflicts with this Memorandum Opinion.
A. The Indictment and Alleged " Official Acts"
On June 4, 2007, a federal grand jury sitting in the Eastern District of Virginia returned a sixteen-count indictment (the " Indictment" ) charging defendant, then a sitting congressman, with a variety of crimes including conspiracy, bribery, wire fraud, foreign corrupt practices, money laundering, obstruction of justice, and racketeering. The Indictment is lengthy and detailed; it spans some ninety-four pages. Pertinent here are the bribery allegations, namely that beginning in or about January 2001, defendant used his office and status as a Member of the U.S. House of Representatives to advance the business interests of various individuals and corporations in return for money and other things of value. More specifically, the Indictment sets forth eleven bribery-related counts that allege defendant conspired to solicit or solicited money and other things of value in exchange for being influenced in the performance of various " official acts," all in violation of § 201(b)(2)(A).3 This Memorandum Opinion focuses solely on § 201(b)(2)(A)'s " official act" element, and hence the factual recitations set forth here are limited to the Indictment's " official act" allegations.4
The Indictment's bribery-related counts set forth several broad descriptions of acts defendant allegedly undertook, or agreed to undertake, in exchange for things of value from individuals seeking to advance various business ventures in Africa and elsewhere. Those acts generally involved defendant's efforts to obtain financial and other business development assistance for those business ventures by exerting his influence as a Member of Congress on various U.S. and African government officials and agencies, including, inter alia, the Nigerian government, the Export-Import Bank of the United States, and the United States Trade Development Agency. More specifically, defendant, acting either directly or through his congressional staff, allegedly exerted his influence by engaging in a pattern of meetings and correspondence that included, inter alia, (i) " official travel" overseas to meet with foreign government officials; (ii) meetings with U.S. and foreign government officials in the United States; and (iii) correspondence, in some instances on congressional letterhead, with U.S. and foreign government officials and agencies. In connection with the overseas travel, defendant, again acting either directly or through his congressional staff, also allegedly lobbied various U.S. and foreign embassies to expedite visa requests and otherwise assist with travel arrangements.
The Indictment alleges that during the course of the alleged bribery schemes, defendant's conduct suggested that he
considered himself to be acting-and indeed, hoped those he dealt with would consider him to be acting-in his official capacity as a congressman. For example, the Indictment alleges that when defendant solicited the alleged bribes from the individuals seeking his assistance, he did so as both a congressman and as a member of certain congressional committees and caucuses relating to international-and more specifically, African-trade matters. Defendant's positions in that regard allegedly included (i) membership on the Subcommittee on Trade of the House Committee on Ways and Means, (ii) membership on the House Committee on the Budget, (iii) co-chairmanship of the Africa Trade and Investment Caucus, and (iv) co-chairmanship of the Congressional Caucus on Nigeria. Further, defendant allegedly used official congressional letterhead and represented himself as a congressman when he wrote to U.S. and foreign government officials seeking to gain financial and other business development assistance on behalf of those who had made or promised payments to him. Moreover, defendant allegedly filed several travel forms with the Clerk of the U.S. House of Representatives on which he stated that his travel to Africa was " in connection with [his] duties as a Member or Officer of the U.S. House of Representatives." 5
B. The Prior Opinion and the Parties' Motions
In the May 2008 Opinion, the sufficiency of the Indictment's " official act" allegations was squarely addressed. See United States v. Jefferson, 562 F.Supp.2d 687 (E.D.Va.2008). Specifically, defendant's motion to dismiss the Bribery Counts-and derivatively, the Conspiracy, Wire Fraud, and Racketeering Counts-for failure to allege facts establishing the " official act" element of a § 201(b)(2)(A) violation was denied. Id. 6 In denying defendant's motion, the May 2008 Opinion essentially relied upon a two-pronged analysis of the statutory definition of " official act" :
First, the act must be among the official duties or among the settled customary duties or practices of the official charged with bribery. And second, performance of the act must involve or affect a government decision or action.
Id. at 691 (citing United States v. Birdsall, 233 U.S. 223, 230, 34 S.Ct. 512, 58 L.Ed. 930 (1914); Valdes v. United States, 475 F.3d 1319, 1324 (D.C.Cir.2007)). Applying that two-pronged test, the May 2008 Opinion held that the Indictment's " official act" allegations were legally sufficient. Yet, the May 2008 Opinion also cautioned that " [w]hether ... the government is able to prove each of the[ ] [required] elements with regard to each of the alleged acts ... is a question properly addressed at trial, not on a motion to dismiss the Indictment." Id. at 693. Nearly ten months later, on March 20, 2009, both parties filed motions addressing the import of the May 2008 Opinion's two-pronged test. Specifically, the government filed a motion to clarify the May 2008 Opinion and to permit use of a proposed jury instruction on the " official act" element, while defendant filed a motion for
reconsideration of the denial of his motion to dismiss or, in the alternative, to exclude evidence of conduct that defendant argues does not fall within the statutory definition of " official act." The parties' positions with respect to those motions merit brief discussion here.
First, the government argues that although the result reached in the May 2008 Opinion was correct, clarification is nonetheless necessary because the " official act" discussion therein " could be mis-construed [sic] to require that a government decision, separate and apart from the decision or action of the charged public official, is necessary for the ‘ official act’ element ... to be satisfied." Gov't Mot. Clarify (Docket No. 340), at 1. With respect to defendant's motion to exclude evidence, the government contends that proof of all alleged " official acts" should be admitted at trial because all such alleged actions constitute " actions on...
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