United States v. Bailey
| Decision Date | 21 February 2023 |
| Docket Number | CRIMINAL ACTION 19-156-1 (CKK) |
| Parties | UNITED STATES OF AMERICA, v. BRIAN WINSTON BAILEY, Defendant. |
| Court | U.S. District Court — District of Columbia |
A jury convicted Defendant Brian Bailey (“Defendant” or “Bailey”) of, among other things, conspiracy in violation of 18 U.S.C. § 371 and bribery in violation of 18 U.S.C. § 201(b)(1)(C). In his pending [254] Renewed Motion for Judgment of Acquittal or, in the Alternative, for New Trial, Bailey mainly challenges his convictions for conspiring with Dawne Dorsey to unlawfully obtain confidential government records known as Tenant Opportunity to Purchase Act (“TOPA”) Notices ahead of his competition and with access to information that might otherwise be redacted from public disclosure. He raises four main arguments: (1) section 201(b)(1)(C) is unconstitutionally vague; (2) that he is actually innocent on his section 201(b)(1)(C) conviction because he did not induce Dorsey to violate a lawful duty; (3) that the Government constructively varied from or amended the indictment; and, probably in the alternative, (4) the evidence was insufficient to show any duty existed in the first place.[1]Each argument fails.
Accordingly and upon consideration of the briefing,[2] the relevant legal authorities, and the entire record, Defendant's [254] Renewed Motion for Judgment of Acquittal or, in the Alternative, for New Trial is DENIED.
A jury convicted Defendant of four counts arising from two related conspiracies: (1) the conspiracy between Bailey and Dorsey, and (2) a conspiracy between Bailey and co-defendant David Paitsel where Bailey paid Paitsel for tenant contact information only available to Paitsel by virtue of his position as a Federal Bureau of Investigation (“FBI”) employee. Bailey explained the pecuniary benefit of these two conspiracies to potential partners in one particularly incriminating email in evidence. Gov. Ex. 103C. The District of Columbia, in Bailey's words, “is unique to any other jurisdiction in the country in that every tenant [who is] renting a residence has [a] ‘right of [first] refusal' to purchase the property they live in” when their landlord puts the property up for sale. Id. This process is governed by the District of Columbia's “Tenant Opportunity to Purchase Act” (“TOPA”), codified at D.C. Code § 42-3404. If a tenant can match the landlord's “bona fide offer of sale,” the landlord must sell the building to the tenant. Id. 42-404.02(a). By acquiring these rights, and acquiring them as early as possible, Bailey earned the opportunity “to purchase the [property], match or re-negotiate the contract[,] and then sell [Bailey's newfound rights] to purchase the property to another investor without actually taking title to the property.” Gov. Ex. 103C. “The difference between the contract price and the premium amount that an investor is willing to pay is the margin of profit that's left over.” Id.
Bailey could only purchase these rights, however, if (1) he knew a property was for sale and (2) he could contact the tenants to buy their TOPA rights. As a result, he began to pay Dorsey, usually in cash, for unredacted TOPA “notices,” also termed “offers of sale.” Pursuant to TOPA, a landlord must first “provide each tenant a written copy of the offer of sale” and, after doing so, “provide the [District of Columbia Department of Housing and Community Development (“DHCD”)] with a written copy of the offer of sale” along with a certification that “each tenant [was] provided [a] cop[y] of the offer of sale on the same day.” D.C. Code § 423404.03. As a DHCD employee, Dorsey had immediate access to these notices as soon as they were provided to DHCD. See Trial Trans. 9/28/22 at 136-37. As such, Bailey paid Dorsey to give him these notices as soon as possible. Gov. Ex. 102B. In an email to Dorsey, for example, Bailey complained that Dorsey was not sending notices fast enough. Id. As he remonstrated her, Id. For Bailey, that would not do. In his words, “[t]he [TOPA notices] are time sensitive and most of the time I get them so late that I might only have a week or less to react . . . It doesn't do me [Bailey] any good to receive the files with almost no time to react.” Id.
At trial, the Government argued, and the jury found, that Bailey paid Dorsey to give him these files in violation of Dorsey's duty to otherwise keep them from Bailey. The Government relied almost entirely (if not entirely) on a DHCD policy to keep TOPA notices confidential from uninterested third parties, except in a response to a request under the District of Columbia's Freedom of Information Act (“FOIA”). Trial Trans. 9/28/22 at 68, 128. Although memorialized in certain exhibits (with Dorsey copied), e.g., Gov. Ex. 110B, it was conveyed orally from supervisors to Dorsey (and other DHCD employees), Trial. Trans. 9/28/22 at 137-142.
The Government presented overwhelming evidence of Bailey's corrupt intent to induce Dorsey to violate what he understood to be Dorsey's obligation to keep these TOPA notices confidential. The Government introduced thousands of communications between Bailey and Dorsey memorializing and/or effectuating their corrupt bargain. For example, Exhibit 3B contained thousands of text messages between Bailey and Dorsey and hundreds of messages from Dorsey promising, conveying, or requesting TOPA notices in exchange for cash or check. E.g., Text 470[3](“I [Dorsey] will review your [Bailey's] request for documents on 211 Morgan Street NW] once I get in [to the office]”); Text 267 (“I'm about to email the notices”); Text 529 (in response to Bailey telling Dorsey that he would “give [her] cash” after Dorsey did not “cash [her] check,” Dorsey confirming “ok[,] [w]hat time do you [Bailey] want me [Dorsey] to come” to Bailey's house). Exhibit 101A contained an email with the subject line “RE: TOPA Notice” from Dorsey to Bailey informing Bailey “[j]ust a heads up, you will receive multiple emails from me.” In Exhibit 101F, which contained multiple TOPA notices, Dorsey told Bailey,
Exhibit 102A contains emails between Bailey and Dorsey in which Bailey told Dorsey that he “could give you [Dorsey] [$]10,000” for TOPA notice and similar documents. Id. at 2.
Dorsey assured Bailey that she has furtively asked another government agency to “check their records.” Id. In Exhibit 102B, Bailey complained to Dorsey that Dorsey had not been sending Bailey requested notices quickly enough. Dorsey responded, “I understand what you're saying . . . I've been trying to send them as we got them ....” Dorsey responded to a similar complaint from Bailey in Exhibit 102, assuring him that she “does apologize” to him because she “didn't realize that the files [she] was sending were late.” Id. Finally, Exhibit 106A featured another email in which Dorsey sent Bailey several TOPA notices. She provided additional contact information for tenants at one other property in addition to the property's sale price.
A variety of exhibits further establish Bailey's mental state that he understood Dorsey was doing something unlawful by sending him TOPA notices. For example, when Bailey emailed an associate TOPA notices that Bailey received from Dorsey, Bailey told the associate: Gov. Ex. 103D. When Dorsey warned Bailey that “there's supposed to be a group of people trying to investigate [Dorsey and her coworkers] b[e]c[ause] they think [DHCD] [is] leaking info,” Bailey responded, Gov. Ex. 3B. Moreover, each of Bailey's payments to Dorsey was furtive-either he went “down to DHCD to slide his [friend] an envelope,” Gov. Ex. 101E, or Dorsey went to Bailey's home for cash or checks, e.g., Gov. Ex. 3B.
Consistent with the facts in evidence, the Court instructed the jury that, to convict Bailey of bribing Dorsey in violation of section 201(b)(1)(C) bribery, the Government must show the following beyond a reasonable doubt: (1) Bailey gave, offered, or promised something of value to Dorsey; (2) Dorsey was a public official; (3) Bailey did so corruptly; and (4) Dorsey had a “lawful duty” to keep confidential the information and/or material for which Bailey paid Dorsey.
The Court defined lawful duty as “any statutory, regulatory, or official duty imposed upon and made known to Ms. Dorsey, either orally or in writing, by virtue of and specific to her position as Program Specialist at” DHCD. In all material respects, the Court gave the jury the instruction requested by Defendant. Based on this instruction, the jury found Defendant guilty of bribing Dorsey in violation of 18 U.S.C. § 201(b)(1)(C).
Rule 29(a) of the Federal Rules of Criminal Procedure provides in pertinent part that “[a]fter the government closes its evidence or after the close of all the evidence, the court on defendant's motion must enter a judgment of acquittal on any offense for which the evidence is insufficient to sustain a conviction.” “In ruling on a motion for a judgment of acquittal, the trial court must view the evidence in the light most favorable to the Government[,] giving full play to the right of the jury to determine credibility, weigh the evidence[,] and draw justifiable inferences of fact.” United States v. Treadwell, 760 F.2d 337, 333 (D.C. Cir. 1985) (citation omitted). “This stringent standard contemplates...
To continue reading
Request your trial