United States v. Craig

• Citation: 401 F.Supp.3d 49
• Decision Date: 06 August 2019
• Docket Number: Crim. Action No. 19-0125 (ABJ)
• Parties: UNITED STATES of America, v. Gregory B. CRAIG, Defendant.
• Court: United States District Courts. United States District Court (Columbia)

401 F.Supp.3d 49

UNITED STATES of America,

v.Gregory B. CRAIG, Defendant.

Crim. Action No. 19-0125 (ABJ)

United States District Court, District of Columbia.

Signed August 6, 2019

Fernando Campoamor-Sanchez, Molly Gulland Gaston, U.S. Attorney's Office for the District of Columbia, Jason Bradley Adam McCullough, U.S. Department of Justice, Washington, DC, for United States of America.

Adam B. Abelson, William James Murphy, Zuckerman Spaeder, LLP, Baltimore, MD, Ezra B. Marcus, Paula M. Junghans, William W. Taylor, III, Zuckerman Spaeder, LLP, Washington, DC, for Defendant.

MEMORANDUM OPINION AND ORDER

AMY BERMAN JACKSON, United States District Judge

On April 11, 2019, a grand jury indicted defendant Gregory Craig for two offenses arising out of statements he made to the National Security Division of the United States Department of Justice in 2013. Indictment ("Ind.") [Dkt. # 1]. The statements related to his possible obligation to register under the Foreign Agents Registration Act, 22 U.S.C. §§ 611 – 621 ("FARA" or "the Act"), in connection with work he performed for the government of Ukraine. Id. Craig and his law firm were engaged to prepare a report, and the alleged false statements and omissions set forth in the indictment concern the extent of his participation in any public relations effort within the United States associated with the December 2012 release of the report. Ind. ¶¶ 7–46. Count One alleges that Craig engaged in a scheme to "knowingly and willfully falsify, conceal, and cover up ... material facts" in his communications with the Division's Foreign Agents Registration Act Unit ("the FARA Unit" or "the Unit") in violation of 18 U.S.C. § 1001(a)(1), and that he did so to avoid registering as a foreign agent and making the disclosures required under the Act. Ind. ¶¶ 47–48. Count Two alleges that he made false statements of material fact in an October 11, 2013 letter furnished to the FARA Unit under the provisions of the Act, and that he omitted material facts necessary to make those statements not misleading in violation of sections 612 and 618 of FARA, 22 U.S.C. §§ 612 and 618(a)(2). Ind. ¶¶ 66–67.

The indictment sets forth the defendant's alleged "manner and means" of carrying out the scheme to conceal charged in Count One: (1) withholding information from attorneys within his law firm; (2) drafting false and misleading descriptions of his media contacts to be distributed within the law firm and also provided to the FARA Unit; and (3) omitting material facts "regarding his acts in furtherance of Ukraine's media plan" and his own contacts with reporters in his communications with the FARA Unit. Ind. ¶ 50. In a section entitled, "Execution of the Scheme," the indictment sets forth the specific false statements and omissions allegedly made by the defendant to his firm's general counsel and in letters to, and a meeting with, the Unit. Ind. ¶¶ 51–65.

The defendant has filed two motions to dismiss, one for each count in the indictment. Def.'s Mot. to Dismiss Count One [Dkt. # 19] ("Def. Count One Mot."); Def.'s Mot. to Dismiss Count Two [Dkt. # 20] ("Def. Count Two Mot.").¹ This opinion concludes that Count Two must be dismissed, but Count One will proceed to trial.

With respect to Count Two, while the Court can fairly square the plain language of 22 U.S.C. § 618, FARA's false statement provision, with the government's application of that provision to the October 11, 2013 letter the defendant submitted to the Department of Justice FARA Unit "Re: FARA Registration," it finds, after application of the full range of tools of statutory construction, including an analysis of the statute as a whole, that the legislature's clear intent cannot be discerned. Given this ambiguity concerning the breadth of the provision and the documents to which it was intended to apply, the rule of lenity requires the dismissal of the count.

With respect to Count One, the question posed in the motion to dismiss is whether the indictment alleges a scheme to conceal something that Craig would have had a legal duty to reveal. The answer is yes: the Foreign Agents Registration Act creates the duty and puts individuals on notice of their specific disclosure obligations. The statute applies to anyone acting as a "foreign agent," and that term is statutorily defined to include individuals who are engaged not in just political advocacy, but also, certain public relations activities in the United States in the interests of foreign entities or individuals. 22 U.S.C. § 611(c). Foreign "agents" are not spies – what they do is legal. But they are required to register, which simply means they must disclose their activities and who paid for them. Id. § 612(a). Registration entails the completion of a government form that asks specific questions about the registrant's own public relations activities and any participation of public relations firms, in addition to other information. Id. Thus, this indictment, which alleges that Craig carried out a scheme to conceal his potential status as a foreign agent, by making a series of false or misleading statements and omissions allegedly obscuring the true timing and full nature of his public relations activities on behalf of Ukraine, states an offense under 18 U.S.C. § 1001(a)(1) that comports with Circuit precedent and the Constitution's due process clause. FARA places individuals on notice of a duty, arising out of both a federal statute and the government forms used to implement it, to reveal the very information Craig is charged with concealing.

Also, the statute is not the sole source of the duty. In this case, the government agency charged with implementing FARA initiated an inquiry, and it asked focused questions, probing Craig's role in the public relations effort surrounding the release of a report that Craig and his law firm prepared for the government of Ukraine. The legal work – the creation of the report – was not the issue; the FARA Unit asked about statements made to the press about the report. The questions were posed for the stated purpose of enabling the agency to ascertain whether Craig or the firm was obliged to register as a foreign agent as a result of those activities, and Craig responded to these inquiries for the stated purpose of persuading the FARA Unit that he was not. Moreover, after the Unit informed Craig of its decision that he and his firm were bound to register, he embarked on an active effort to persuade the agency to change its position. Thus, this case is not United States v. Safavian , 528 F.3d 957 (D.C. Cir. 2008), the appellate decision that forms the foundation of Craig's motion. Unlike the defendant in that case, Craig is not charged with failing to volunteer information based on some undefined set of obligations. And he was not answering questions without any guideposts about what was or was not important: they are in the statute, they are in the registration form, and the FARA Unit laid out what it needed to know.

The indictment alleges that Craig was engaged in ongoing communications with a law enforcement agency for the specific purpose of determining whether he was subject to a clearly defined statutory requirement to disclose public relations activities and identify their sponsor. Once he chose to answer the Unit's questions about facts directly related to that inquiry and the underlying duty, and then again when he took up the banner of persuading the agency that its decision was wrong, he was obliged to be both truthful and complete. The facts the indictment alleges he omitted were the facts necessary to make the registration determination; the indictment sets forth sufficient facts to allege that they were – contrary to the defendant's argument – the very sort of facts he was being asked about, and they were the facts that a foreign agent would ultimately have to disclose. Finally, it was the omission of those facts that allegedly made what he did say false or misleading, so they are appropriately included in the indictment for that reason alone. For these reasons, set forth in more detail below, Count One will not be dismissed as a matter of law for lack of a duty to disclose.

The Court also concludes, based on the D.C. Circuit's decisions in Bramblett v. United States , 231 F.2d 489 (D.C. Cir. 1956), and United States v. Hubbell , 177 F.3d 11 (D.C. Cir. 1999), that Count One is not barred by the statute of limitations.

STATUTORY BACKGROUND

The Foreign Agents Registration Act is a disclosure statute. It requires anyone engaged in political or public relations activities in the United States on behalf of a "foreign principal" to register with the Attorney General to disclose the agency relationship. Ind. ¶ 3, citing 22 U.S.C. §§ 611 – 12. Section 612 of the Act requires any person acting as an "agent of a foreign principal" to file a registration statement, 22 U.S.C. § 612, and "agent of a foreign principal" is defined to mean anyone "who directly or through any other person ... engages within the United States in political activities for or in the interests of such foreign principal" or "acts within the United States as a public relations counsel ... for or in the interests of such foreign principal." Id. § 611(c)(1)(i), (ii). The Act defines "political activities" to mean

any activity that the person engaging in believes will, or that the person intends to, in any way influence any agency or official of the Government of the United States or any section of the public within the United States with reference to formulating, adopting, or changing the domestic or foreign policies of the United States or with reference to the political or public interests, policies, or relations of a government of a foreign country or a foreign political party.

Id. § 611(o). And it defines "public-relations counsel" as

includ[ing] any person who engages directly or indirectly in informing, advising, or in any way representing a principal in any public relations matter

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