United States v. Bowser

• Decision Date: 17 July 2018
• Docket Number: Criminal No. 16-59 (EGS)
• Citation: 318 F.Supp.3d 154
• Parties: UNITED STATES of America, v. David G. BOWSER, Defendant.
• Court: U.S. District Court — District of Columbia

318 F.Supp.3d 154

UNITED STATES of America,

v.David G. BOWSER, Defendant.

Criminal No. 16-59 (EGS)

United States District Court, District of Columbia.

Signed July 17, 2018

Sean F. Mulryne, Todd William Gee, U.S. Department of Justice, Washington, DC, for United States of America.

Leslie S. McAdoo Gordon, McAdoo Gordon & Associates, P.C., Washington, DC, for Defendant.

MEMORANDUM OPINION

Emmet G. Sullivan, United States District Court Judge

This case stems from the government's allegations that David Bowser, who was then Chief of Staff for former Representative Paul Broun in the United States House of Representatives, unlawfully used congressional funds to pay a consultant for campaign services. Following a four-week trial, the jury returned guilty verdicts on five counts. Pending before the Court are the following motions: (1) Mr. Bowser's motion for a judgment of acquittal following the close of the government's evidence; (2) Mr. Bowser's motion for a judgment of acquittal at the close of all evidence; Mr. Bowser's motion for a judgment of acquittal notwithstanding the verdict; and (4) the government's motion to dismiss Count Two of the Indictment. Based on the evidence in the record, the applicable law, and the parties' arguments, and for the reasons explained below, the Court GRANTS IN PART AND DENIES IN PART Mr. Bowser's motions and GRANTS the government's motion.

I. BACKGROUND

On April 6, 2016, David Bowser was charged with one count of obstruction of proceedings in violation of 18 U.S.C. §§ 1505 (Count One); one count of theft of government property in violation of 18 U.S.C. § 641 (Count Two); one count of concealment of material facts in violation of 18 U.S.C. §§ 1001(a)(1) and (c)(2) (Count Three); and five counts of making false statements in violation of 18 U.S.C. §§ 1001(a)(2) and (c)(2) (Counts Four through Eight). See generally Indict., ECF No. 1.¹ These charges were based on allegations that Mr. Bowser, who was the Chief of Staff to Representative Paul Broun from 2008 until 2015, used his position to misappropriate federal funds to pay a campaign consultant, Brett O'Donnell, and then obstructed the Office of Congressional Ethics' investigation of that misappropriation.

Jury selection commenced on February 23, 2018. The government completed its case-in-chief on March 13, 2018. Pursuant to Federal Rule of Criminal Procedure 29, Mr. Bowser orally moved for a judgment of acquittal as to Counts One through Seven at the close of the government's case. Mr. Bowser subsequently filed a written motion, see ECF No. 72, which was fully briefed by March 18, 2018, see ECF Nos. 82 and 85. The Court reserved judgment on the motion, and Mr. Bowser presented his defense. The defense completed its case-in-chief on March 19, 2018. The government did not present rebuttal evidence. Mr. Bowser orally renewed his motion for a judgment of acquittal and filed a second written motion. See ECF No. 86. The Court reserved judgment on that motion until after the jury's verdict.

On March 23, 2018, the jury returned guilty verdicts on Counts One, Three, Four, Seven, and Eight. See Jury Verdict, ECF No. 100. The jury acquitted Mr. Bowser on Counts Five and Six, and it was unable to reach a unanimous verdict on Count Two. Id. ; see also Jury Note, ECF No. 94. The Court received the jury's verdict as to the unanimous counts and instructed the jury to continue deliberations as to Count Two. After continued deliberations, the jury informed the Court that it was unable to reach a verdict with respect to Count Two. See Jury Note, ECF No. 96. The Court again instructed the jury to continue deliberating. See 3/23/18 Trial Tr., ECF No. 116 at 8-12 (providing anti-deadlock instruction pursuant to United States v. Thomas , 449 F.2d 1171 (D.C. Cir. 1971) ). After further deliberations, the jury informed the Court that it was still "hopelessly deadlocked" as to Count Two. See Jury Note, ECF No. 98. At that point, the government stated that "it would be appropriate to declare a mistrial." Id. at 12. The Court agreed and, over Mr. Bowser's objection, determined that it was "manifestly necessary" to declare a mistrial as the Count Two. Id. at 12-13; see also Minute Order of March 25, 2018 (explaining that it was necessary to declare a mistrial given the "jury's continued inability to reach a verdict" and the "significant risk that a verdict may result from pressures inherent in the situation rather than the considered judgment of all the jurors").

On April 13, 2018, Mr. Bowser filed a motion for a judgment of acquittal notwithstanding the verdict as to Counts One, Two, Three, Four, and Seven. See ECF No. 117. On that same day, the government filed a notice of its intention not to seek retrial on Count Two and asked that Count Two be dismissed without prejudice pursuant to Federal Rule of Civil Procedure 48(a). See ECF Nos. 118 and 119. Mr. Bowser requested the Court to reserve its ruling on the government's request to dismiss Count Two until after it had ruled on his motions for acquittal. See ECF No. 120. The Court subsequently ordered the government to show cause why Count Two should not be dismissed with prejudice in view of the government's decision not to seek retrial on that count. See Minute Order of June 15, 2018 (citing United States v. Karake , No. 2-256, 2007 WL 8045732, at *3 (D.D.C. Feb. 7, 2007) ). On June 20, 2018, in response to the Court's order to show cause, the government stated that it had no objection to dismissing Count Two with prejudice. See ECF No. 124. Mr. Bowser nonetheless maintains that a judgment of acquittal is appropriate. See ECF No. 125.

In his motions, Mr. Bowser argues that Counts One, Two, Three, Four and Seven fail for the following reasons:

• Count One, obstruction of proceedings, fails because the Office of Congressional Ethics does not fall within the scope of 18 U.S.C. § 1505, which only applies to the "House" or a "committee" of the House.

• Count Two, theft of government funds, is non-justiciable pursuant to United States v. Rostenkowski , 59 F.3d 1291 (D.C. Cir. 1995).

• Count Three, concealment of a material fact, fails because there was no legal duty for Mr. Bowser to disclose any information to the Office of Congressional Ethics, as cooperation with that office's investigations is voluntary.

• Counts Four and Seven, making a false statement, fail because they are non-justiciable like Count Two and for the additional reason that the evidence was insufficient to establish that Mr. Bowser had the requisite mens rea .

II. LEGAL STANDARD

A. Motion for a Judgment of Acquittal at the Close of Evidence

Federal Rule of Criminal Procedure 29(a) provides that, "[a]fter the government closes its evidence or after the close of all the evidence, the court on the defendant's motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction." In considering a Rule 29 motion, " ‘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 evidence and draw justifiable inferences of fact.’ " United States v. Treadwell , 760 F.2d 327, 333 (D.C. Cir. 1985) (quoting United States v. Davis , 562 F.2d 681, 683 (D.C. Cir. 1977) ). In other words, "the Court must decide whether a reasonable jury could conclude that the government met its burden of proving each element of the offense beyond a reasonable doubt." United States v. Quinn , 403 F.Supp.2d 57, 60 (D.D.C. 2005). "The court may reserve decision on the motion, proceed with the trial (where the motion is made before the close of all the evidence), submit the case to the jury, and decide the motion either before the jury returns a verdict or after it returns a verdict of guilty or is discharged without having returned a verdict. If the court reserves decision, it must decide the motion on the basis of the evidence at the time the ruling was reserved." Fed. R. Crim. P. 29(b).

B. Motion for a Judgement of Acquittal After the Verdict

Under Rule 29(c), a defendant may renew a motion for a judgment of acquittal within fourteen days after a guilty verdict. Because a court owes "tremendous deference to a jury verdict," United States v. Long , 905 F.2d 1572, 1576 (D.C. Cir. 1990), the court "must view the evidence in the light most favorable to the verdict, and must presume that the jury has properly carried out its functions of evaluating the credibility of witnesses, finding the facts, and drawing justifiable inferences," United States v. Campbell , 702 F.2d 262, 264 (D.C. Cir. 1983). A conviction in a criminal trial should be upheld if "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Wahl , 290 F.3d 370, 375 (D.C. Cir. 2002) (quoting Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ). The standard for "clear[ing] the bar for [a] sufficiency of evidence challenge" is "very high," and the evidence to support a conviction does "not need to be overwhelming." United States v. Pasha , 797 F.3d 1122, 1135 n.9 (D.C. Cir. 2015). "Thus a judgment of acquittal is appropriate only when there is no evidence upon which a reasonable juror might fairly conclude guilt beyond a reasonable doubt." United States v. Weisz , 718 F.2d 413, 438 (D.C. Cir. 1983) (emphasis added).

III. ANALYSIS

A. Count One: Obstruction of Proceedings

Count One charges Mr. Bowser with obstruction of proceedings in violation of 18 U.S.C. § 1505, which prohibits an individual from corruptly obstructing or endeavoring to obstruct "the due and proper exercise of the power of inquiry ... by either House, or any committee of either House or any joint committee of the Congress." Indict., ECF No. 1 ¶¶ 64-80. Specifically, the government charged Mr. Bowser with obstructing an official investigation that was conducted by the Office of Congressional Ethics ("OCE") regarding the use of...