United States v. Menendez

Citation831 F.3d 155
Decision Date29 July 2016
Docket NumberNo. 15-3459,15-3459
Parties United States of America v. Robert Menendez, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Raymond M. Brown, Esquire, Greenbaum Rowe Smith & Davis LLP, P.O. Box 5600, Metro Corporate Campus One, Suite 4, Woodbridge, NJ 07095, Scott W. Coyle, Esquire, Abbe David Lowell, Esquire (Argued), Christopher D. Man, Esquire, Chadbourne & Parke, 1200 New Hampshire Avenue, N.W., Washington, DC 20036, Jenny R. Kramer, Esquire, Chadbourne & Parke, 1301 Avenue of the

Americas, New York, NY 10019, Stephen M. Ryan, Esquire, McDermott Will & Emery, 500 North Capitol Street, N.W., Washington, DC 20001, Counsel for Appellant

Joseph P. Cooney, Esquire, Deputy Chief, Peter M. Koski, Esquire (Argued), Deputy Chief, Monique Abrishami, Esquire, Amanda R. Vaughn, Esquire, United States Department of Justice, Criminal Division, Public Integrity Section, 1400 New York Avenue, N.W., 12th Floor, Washington, DC 20005, Counsel for Appellee

Before: AMBRO, JORDAN and SCIRICA, Circuit Judges

OPINION OF THE COURT

AMBRO, Circuit Judge

A 22-count indictment (the “Indictment”) charges that from 2006 to 2013 United States Senator Robert Menendez of New Jersey solicited and accepted numerous gifts from his friend Dr. Salomon Melgen, a Florida-based ophthalmologist. In exchange, Senator Menendez allegedly used the power of his office to influence, among other things, an enforcement action against Dr. Melgen by the Centers for Medicare and Medicaid Services (“CMS”) and to encourage the State Department and the U.S. Customs and Border Patrol (“Customs”) to intervene on Dr. Melgen's behalf in a multi-million dollar contract dispute with the Dominican Republic.

Senator Menendez appeals from the denial of his motions to dismiss the Indictment. He argues that, as a United States Senator, he is protected from prosecution under the Speech or Debate Clause of our Constitution. U.S. Const. art. I, § 6, cl. 1. Though it states literally that Members of Congress “shall not be questioned in any other Place” for “any Speech or Debate in either House,” its protections extend to “legislative acts” that Members perform. Senator Menendez contends that protected acts form the basis of the Indictment. He claims also that Count 22 of the Indictment—which charges him with knowingly or willfully falsifying, concealing, or covering up gifts from Dr. Melgen in violation of the Ethics in Government Act of 1978 (the “Ethics Act”), 5 U.S.C. app. 4 §§ 101 -11, and 18 U.S.C. § 1001 —must be dismissed because it allows other Branches of Government to intrude on Legislative Branch matters (a separation-of-powers claim) and was brought in the wrong venue (New Jersey) instead of where it belonged (the District of Columbia). We conclude that Senator Menendez's purportedly legislative acts are not protected by the Speech or Debate Clause and that the Indictment is not otherwise deficient. Thus we affirm.

I. Background
A. Senator Menendez, Multi–Dosing, and Dr. Melgen's Dispute with CMS

At the motion-to-dismiss stage, we generally accept as true the factual allegations in an indictment. See United States v. Huet , 665 F.3d 588, 595 (3d Cir. 2012). Our statement of facts is therefore drawn from the Indictment except where it is noted as drawn from evidence in the record.

In 2009 CMS suspected that Dr. Melgen had overbilled Medicare for $8.9 million from 2007 to 2008 by engaging in a prohibited practice known as “multi-dosing.” Medicare policy required that each patient receiving the drug Lucentis be treated using a separate vial, but Dr. Melgen routinely used the extra solution from a single vial (so-called “overfill”) to treat multiple patients. Because he was reimbursed as if he used a separate vial for each patient, CMS believed Dr. Melgen was paid for more vials of the drug than he actually used.

Before CMS began formal proceedings against Dr. Melgen, Senator Menendez instructed his Legislative Assistant to call the Doctor about “a Medicare problem we need to help him with.” A-105 (Indict. ¶ 148). The Legislative Assistant replied that she and the Senator's Deputy Chief of Staff called Dr. Melgen twice and were “looking into how [they could] be helpful.” Id. (Indict. ¶ 149) (alteration in original). After CMS formally notified Dr. Melgen that it may seek reimbursement for the suspected overbilling, the Senator's Deputy Chief of Staff emailed the Legislative Assistant, “I think we have to weigh in on [Dr. Melgen's] behalf ... to say they can't make him pay retroactively.” A-107 (Indict. ¶¶ 158-59).

Senator Menendez's staff continued to work with Dr. Melgen's lobbyist on the CMS dispute and eventually arranged for the Senator to speak with Jonathan Blum, the then-Acting Principal Deputy Administrator and Director of CMS. Before that conversation, an official from the United States Department of Health and Human Services (“HHS”) wrote Mr. Blum, We have a bit of a situation with Senator Menendez, who is advocating on behalf of a physician friend of his in Florida.” A-108 (Indict. ¶ 166). Meanwhile, Senator Menendez's Legislative Assistant drafted “Talking Points” for the Senator that, along with statements about policy, included statements like “I was contacted by Dr. Melgen regarding an audit by First Coast, the Medicare administrative contractor in Florida,” and “I am not weighing [in] on how you should administer Lucentis, nor on how his specific audit should be resolved but rather [am] asking you to consider the confusing and unclear policy on this issue and not punish him retroactively as a result.” A-108-09 (Indict. ¶ 167). Ultimately, the conversation between Senator Menendez and Mr. Blum did not resolve Dr. Melgen's dispute with CMS. The following month, after more developments in the case, the Senator noted that Dr. Melgen was “still in the non[-]litigant stage” and directed his Chief of Staff to “determine who has the best juice at CMS and [HHS].” A-109 (Indict. ¶ 173).

Almost three years later, in June 2012, Senator Menendez discussed multi-dosing with Marilyn Tavenner, the then-Acting Administrator of CMS. There is some evidence in the record suggesting that Senator Menendez and Ms. Tavenner met to discuss her nomination to become the permanent Administrator of CMS. For example, the Senator's calendar noted that they were meeting about Ms. Tavenner's “nomination before the [Senate] Finance Committee.” A-462. However, there is no evidence suggesting that her nomination was actually discussed when they met. See A-1313 (Tavenner FD-302); A-1254-55 (Martino FD-302).

To prepare for the meeting, the Senator met with Dr. Melgen's lobbyist. A handwritten note for Senator Menendez mentioned Dr. Melgen and his lobbyist by name and reminded the Senator to [m]ake the larger policy case” to Ms. Tavenner. A-1316. On the other side, Mr. Blum alerted Ms. Tavenner to Senator Menendez's interest in Dr. Melgen's case.

Once together, Senator Menendez pressed Ms. Tavenner about multi-dosing and advocated on behalf of the position favorable to Dr. Melgen in his Medicare billing dispute with CMS. Contemporaneous notes reported that Senator Menendez and Ms. Tavenner discussed CMS's multi-dosing policy but made no mention of Dr. Melgen or his case.

A follow-up call between Senator Menendez and Ms. Tavenner took place a few weeks later. Before the call, Dr. Melgen's lobbyist prepared a memorandum entitled “Talking Points: CMS Policy” and shared it with the Senator's staff, who incorporated it into a separate memorandum prepared for Senator Menendez. A-114 (Indict. ¶ 201). The latter memorandum noted that [t]he subject of the call [wa]s to discuss the issue [of] Medicare reimbursement when a physician multi-doses from a single dose vial,” but it also made several references to Dr. Melgen's case, such as [w]e're talking about payments made in 2007-2008 and [i]t's clear that CMS is taking steps to clarify both multi-dosing from single-dose vials and overfills going forward. This is, in effect, admitting that these policies didn't exist before and don't apply during the 2007-2008 period. Therefore they don't have any bearing on the issue at hand.” A-115 (Indict. ¶ 202). To the Government, the “issue at hand” was Dr. Melgen.

During the call, Ms. Tavenner said CMS would not alter its position on multi-dosing and Senator Menendez threatened to raise the issue of multi-dosing directly with Kathleen Sebelius, the then-Secretary of HHS who oversaw CMS. After the call, Dr. Melgen's lobbyist spoke with one of the Senator's staffers, and the staffer reported to the Senator that the lobbyist was “encouraged, but mainly because he's increasingly confident they won't have a leg to stand on should [Dr. Melgen] litigate. But we're all hopeful it won't come to that.” A-116 (Indict. ¶ 207). The Indictment does not allege specifically that Senator Menendez mentioned Dr. Melgen by name to Ms. Tavenner.

A week later, the scheduler for the then-Majority Leader of the Senate, Harry Reid, arranged a meeting among Senator Reid, Senator Menendez, and Secretary Sebelius. Senator Menendez told his staff that he did not want to tell Dr. Melgen about the arrangement “so that I don't raise expectation[s] just in case it falls apart,” A-117 (Indict. ¶ 210), though the Senator met with Dr. Melgen's lobbyist before the meeting and received a summary of the latest developments in Dr. Melgen's dispute with CMS. At the meeting with Secretary Sebelius and Senator Reid, Senator Menendez advocated on behalf of Dr. Melgen's position in the Medicare billing dispute, focusing on his specific case and asserting unfair treatment of it. Mr. Blum, who accompanied the Secretary to the meeting on behalf of CMS, later told the FBI he did not recall anyone mentioning Dr. Melgen by name, but said it was clear to him that the Senators were talking about Dr. Melgen and that the issue with his billing “was an isolated issue as opposed to a general problem.” A-1136 (Blum FD-302)....

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3 books & journal articles
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    • United States
    • American Criminal Law Review No. 60-3, July 2023
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    • American Criminal Law Review No. 59-3, July 2022
    • 1 July 2022
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