Abouemara v. Commonwealth
| Docket Number | 0284-22-2 |
| Decision Date | 06 June 2023 |
| Parties | MAMDOH ABOUEMARA v. COMMONWEALTH OF VIRGINIA |
| Court | Virginia Court of Appeals |
FROM THE CIRCUIT COURT OF MECKLENBURG COUNTY S. Anderson Nelson Judge
Charles C. Cosby, Jr. (Kevin E. Calhoun, on brief), for appellant.
William K. Hamilton, Assistant Attorney General (Jason S Miyares, Attorney General, on brief), for appellee.
Present: Judges Chaney, Raphael and Callins Argued at Richmond, Virginia
Mamdoh Abouemara was convicted of bribery under Code § 18.2-447 after he offered to the town council for the Town of La Crosse that he would pay $500 a month to the town if the council would write a letter supporting the gaming machines in his convenience store. On appeal, Abouemara claims that the prosecution failed to prove that he acted with a corrupt intent or with an intent to undermine the administration of justice. Because the evidence taken in the light most favorable to the Commonwealth satisfies the elements of bribery, however, we affirm his conviction.
We recite the facts "in the 'light most favorable' to the Commonwealth, the prevailing party in the trial court." Hammer v. Commonwealth, 74 Va.App. 225 231 (2022) (quoting Commonwealth v. Cady, 300 Va. 325, 329 (2021)). Doing so requires that we "discard" the defendant's evidence when it conflicts with the Commonwealth's evidence, "regard as true all the credible evidence favorable to the Commonwealth," and read "all fair inferences" in the Commonwealth's favor. Cady, 300 Va. at 329 (quoting Commonwealth v. Perkins, 295 Va. 323, 324 (2018)).
In 2019, Abouemara operated a convenience store in the Town of La Crosse, in Mecklenburg County. His store featured gaming machines.
Kendall Foster was the chief of police for the town. Before the incident at issue, Chief Foster investigated the legality of operations at Abouemara's store after observing many cars in the parking lot between 11:00 p.m. and 5:00 a.m., when the store was closed. Foster also found "cash in, cash out" receipts in the store's garbage.[1]
The town manager of La Crosse was F.A. Hendrick, an employee of the town council. His job responsibilities included attending all public meetings, representing the town to the public, and submitting certain questions to the council to elicit the members' vote. As Hendrick put it,
During the first week of October 2019, Abouemara came to Hendrick's office, wanting to "talk . . . about making some donations to the Town of La Crosse." Abouemara also Hendrick responded that the town could not "take donations directly," but that Abouemara could donate to the "Friends of La Crosse," a 501(c)(3) organization. That group disburses funds as it "see[s] fit for the betterment of the town."
While Hendrick could not agree to Abouemara's proposal, he offered to take it to the town council. He testified that Abouemara "was in agreement" with doing so and with a "vote being taken" by the council. The town clerk was within earshot for that conversation.
The town council meeting occurred on December 9, 2019. Chief Foster attended in person and recorded portions of the meeting on his work phone. His recording was admitted into evidence. Hendrick brought up Abouemara's proposal at the end of his manager's report to the council. Although the recording is poor, Hendrick can be heard relating Abouemara's proposal as follows:
He has contacted us before, and I told him I'd get back with him. He's contacted the town office again. He wants to make a monthly donation of $500 per month to the town, but he wants in return a letter in support of his machines that he has at his place of business.
It is undisputed that the town council did not accept Abouemara's proposal. Chief Foster testified that the council voted against it with a "unanimous no." Hendrick did not recall that a vote was taken but was clear that the councilmembers were not interested. The recording features the chair calling for a motion and a second on the question (possibly to lay the question on the table), but the recording is too garbled to make out. After the council declined the proposal, laughter can be heard on the recording after one person joked, "Well, we do need to fix the porch."
When Abouemara next visited the town manager's office, Hendrick told him that the town council had rejected his proposal. Abouemara said that he still wanted to donate $200 to the town. Abouemara had presented Hendrick with a $200 check, payable to "Town of La Crosse," and drawn on the account of his Mini Mart business. But Chief Foster had advised Hendrick not to deposit the check. The clerk issued a receipt showing that the transaction was "void."
Abouemara was indicted on two counts of bribery in violation of Code § 18.2-447. One indictment (CR20-224-00) charged him with bribery of a public servant during the period "October 1, 2019 through December 9, 2019." A second (CR20-101-00) charged him with bribery for a "shorter date range" that was "just those few days in December," apparently corresponding to Abouemara's meeting with Hendrick, after the town council had met, when Abouemara still wanted to donate $200.[2]
At the bench trial that followed, the trial court granted Abouemara's motion to strike the second indictment, but not the first indictment. As to the first indictment, Abouemara's attorney argued that the Commonwealth had failed to prove bribery because it had not established "a quid pro quo" and the proposal was made in public, rather than in "a sneaky, clandestine, non-public way." "This is not typically a bribery case," he said, "where it's out in the open." While conceding his client's conduct was "suspicious," Abouemara's counsel argued that it did not "rise to the level of proving bribery."
The prosecutor responded that the statutory elements of Code § 18.2-447 were satisfied. She referenced both subsections (1)(a) and (1)(b) of the statute. Subsection (1)(a), she said, prohibited paying a "pecuniary benefit as consideration for or to obtain or influence the recipient's decision, recommendation, vote, or other exercise of discretion as a public servant or party official." She also argued that the evidence satisfied (1)(b), "the further subsection."[3]
The trial court found Abouemara guilty of bribery on the remaining indictment. It found that, with his business under investigation, Abouemara offered to pay money to the town in exchange for the town giving him a letter of support for his gaming machines. Abouemara had "coupled" his offer of money to what he wanted in return. After convicting him of bribery under Code § 18.2-447, the court sentenced Abouemara to five years' incarceration, with all five years suspended, and a one-year term of probation. Abouemara noted a timely appeal.
When as here, an appellant challenges the sufficiency of the evidence supporting his conviction, "[t]he judgment of the trial court is presumed correct and will not be disturbed unless it is plainly wrong or without evidence to support it." Smith v. Commonwealth, 296 Va. 450, 460 (2018) (alteration in original) (quoting Perkins, 295 Va. at 327). "In such cases, '[t]he Court does not ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.'" McGowan v. Commonwealth, 72 Va.App. 513, 521 (2020) (alteration in original) (quoting Secret v. Commonwealth, 296 Va. 204, 228 (2018)). "Rather, the relevant question is whether 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Vasquez v. Commonwealth, 291 Va. 232, 248 (2016) (quoting Williams v. Commonwealth, 278 Va. 190, 193 (2009)). "If there is evidentiary support for the conviction, 'the reviewing court is not permitted to substitute its own judgment, even if its opinion might differ from the conclusions reached by the finder of fact at the trial.'" McGowan, 72 Va.App. at 521 (quoting Chavez v. Commonwealth, 69 Va.App. 149, 161 (2018)).
Laws against bribery have a long pedigree. At common law, bribery was an "offence against public justice[,] which is when a judge, or other person concerned in the administration of justice, takes any undue reward to influence his behaviour in his office." 4 William Blackstone, Commentaries *139. Blackstone condemned bribery as "calculated for the genius of despotic countries[,] where the true principles of government are never understood." Id. Virginia's colonial general assembly prohibited public officials from accepting bribes in the form of "money" or "any public entertainment of meat or drink." 1775 Va. Acts ch. 4, § 9. Those who violated the law were "disqualified" from public office. Id. After independence, the General Assembly enacted a law prohibiting judges and State and local public officials from taking "any manner of gift . . . or reward for doing his office," other than a government salary.
1786 Va. Acts ch. 52. A violator was liable for "the treble value of that he hath received, shall be amerced [fined] and imprisoned at the discretion of a jury, and shall be discharged from his office forever." Id.
The current version of Virginia's laws prohibiting bribery of State and local public officials is found in Title 18.2, Article 3 ("Bribery of Public Servants and Party Officials"), enacted in 1968. See 1968 Va. Acts ch. 552 (). Bribery is a Class 4 felony. Code § 18.2-449. Apart from a possible prison...
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