United States v. Islam
| Decision Date | 15 March 2021 |
| Docket Number | CRIMINAL ACTION No. 20-cr-00045 |
| Citation | 526 F.Supp.3d 48 |
| Parties | UNITED STATES of America v. Abdur Rahim ISLAM, Shahied Dawan, Kenyatta Johnson, Dawn Chavous, Defendants. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Eric L. Gibson, Jennifer A. Williams, Mark B. Dubnoff, Vineet Gauri, United States Attorney's Office Eastern District of Pennsylvania Criminal Section, Philadelphia, PA, for United States of America.
David M. Laigaie, Eckert Seamans Cherin & Mellott LLC, Philadelphia, PA, Joshua David Hill, Duane Morris LLP, San Francisco, CA, Peter Goldberger, Ardmore, PA, for Defendant Abdur Rahim Islam.
Thomas O. Fitzpatrick, Mincey Fitzpatrick Ross, LLC, Philadelphia, PA, for Defendant Shahied Dawan.
Patrick J. Egan, Kristina Neff Burland, Trisha Stein, Fox Rothschild LLP, Philadelphia, PA, for Defendant Kenyatta Johnson.
Barry Gross, Elizabeth Casey, Jessie D. Shields, Faegre Drinker Biddle & Reath LLP, Philadelphia, PA, for Defendant Dawn Chavous.
McHUGH, United States District Judge This is a prosecution for alleged financial crimes and political corruption, set forth in a twenty-two count Indictment. Defendant Abdur Rahim Islam has filed a motion to dismiss multiple counts. See Mot. Dismiss, ECF 51. Only one of his arguments has merit, and to that extent the motion will be granted. In all other respects it will be denied.
Mr. Islam first argues that multiple counts must be dismissed insofar as they rely on a legally incorrect theory of bribery. See Mot. to Dismiss at 3. The charges in Counts One (conspiracy to commit racketeering) and Two through Seven (honest services wire fraud) are based largely on the alleged bribery of a school board official in Wisconsin, Mr. Michael Bonds. See Indictment, ECF 1. Mr. Islam argues that because the indictment does not allege a payment, or a promise of payment, that preceded Mr. Bonds’ official acts, the conduct set forth would amount to no more than a reward or gratuity, and not a bribe.
The Indictment alleges that Mr. Bonds engaged in several "overt acts" as a result of bribery by Mr. Islam and Mr. Dawan related to Universal Education Companies. Id. at 30 (incorporating "Overt Acts 1-7" from Count One at 20). First, Mr. Bonds allegedly brought a motion beneficial to Universal to a Milwaukee School Board committee on December 11, 2014, voted in support of the motion the same day, and "presided over a meeting" of the full school board where the motion was approved on December 18, 2014. Id. at 19-20. Then, on April 19, 2016, Mr. Bonds allegedly moved the Board for approval of favorable lease terms for Universal Companies and then voted for the lease. Id. at 20.
The wire transmissions forming the basis of Counts Two through Seven were allegedly sent between September 26, 2015 and April 21, 2016. Id. at 29. The Indictment alleges that Mr. Bonds created a false invoice to disguise a bribe allegedly paid by Defendants on December 19, 2014, although that payment is not charged under Counts Two through Seven. Id. at 20-21.
The Supreme Court has differentiated between gratuities and bribes, holding that only a bribe is punishable as Honest Services Fraud under 18 U.S.C. § 1346. See United States v. Sun-Diamond Growers of California , 526 U.S. 398, 404-05, 119 S.Ct. 1402, 143 L.Ed.2d 576 (1999) ( ); Skilling v. United States , 561 U.S. 358, 410, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010) (); United States v. Wright , 665 F.3d 560, 567-68 (3d Cir. 2012). The defense focuses on the mismatch between the dates Bonds took action and the dates of the payments to argue that the payments alleged do not meet the definition of a bribe.
The Government responds that the order of payment and action are irrelevant, because under federal law,1 bribery may be shown by a "stream of benefits" theory, which "does not require that each quid , or item of value, be linked to a specific quo , or official act." Wright , 665 F.3d at 568. Mr. Islam's rejoinder is that a stream of benefits theory would still not resolve the deficits in the Indictment, because the stream of payments must be "intended to influence" an official act, emphasizing that some sort of payment or promise must precede the act. Reply in Support of Mot. Dismiss at 3, ECF 65. Here, the specific wire transmissions occurred at least nine months after the first overt acts taken by Mr. Bonds. See Id. at 2-3.
Nonetheless, the Indictment alleges a series of payments between September, 2015 and April, 2016, and further alleges that "[i]n exchange for the payments and things of value, Bonds attended committee meetings of the MPS and advocated on behalf of defendants." Indictment at 9. The Indictment also alleges these payments preceded a separate official act of Mr. Bonds, in April 2016. See Id. at 9, 21. If the Government were relying only upon the December 2014 actions pleaded as background, Defendant's argument would carry more weight. But the Government has alleged facts forming a cognizable theory of bribery related to the Mr. Bonds’ April 2016 action.
Depending on the evidence presented, Mr. Islam may have an argument at trial based on the legal distinction between bribes and gratuities. At this stage, however, the Government has met its burden. See United States v. Moyer , 674 F.3d 192, 203 (3d Cir. 2012) () (citing United States v. Addonizio , 451 F.2d 49, 64 (3d Cir. 1971) ); United States v. Bergrin , 650 F.3d 257, 264 (3d Cir. 2011) () (quoting United States v. Resendiz-Ponce , 549 U.S. 102, 110, 127 S.Ct. 782, 166 L.Ed.2d 591 (2007) ).
Accordingly, this portion of Mr. Islam's Motion is denied.2
Mr. Islam makes three arguments regarding Count Eight, which charges him with violating 18 U.S.C. § 1952(a)(3) (the Travel Act). As to the portion of Count Eight related to extortion, the defense is correct, and it will be stricken. In other respects, Count Eight stands.
The Travel Act prohibits the use of facilities, including an email server, with the intent to carry out certain unlawful activities, followed by performance or attempted performance of those activities, as discussed in more detail below. As relevant here, the enumerated unlawful activities include "bribery ... in violation of the laws of the State in which committed or of the United States." 18 U.S.C. § 1952(b)(i)(2). Count Eight specifically charges that Mr. Islam violated the Act by using an email server with the intent to commit bribery in violation of Wisconsin Statute § 946.10 and that he thereafter committed bribery in violation of that statute. See Indictment at 30.
As above, Mr. Islam argues that because the actions of the school board official preceded any payments from Mr. Islam, the government has not alleged bribery, but rather only a reward or gratuity. See Mot. at 4. The Wisconsin statute reads that whoever "transfers or promises to [a public] officer or employee or on the officer's or employees behalf any property or any personal advantage which the officer or employee is not authorized to receive" "with intent to influence the conduct of [the] public officer or public employee in relation to any matter which by law is pending or might come before the officer or employee in the officer or employee's capacity ... or with intent to induce the officer or employee to do or omit to do any action in violation of ... [their] lawful duty" is guilty of bribery under the statute. Wis. Stat. § 946.10(1). Mr. Islam argues that under the plain language of this statute, a payment or promise of payment must precede an official action. However, as discussed above, the payments charged in Counts Two through Seven precede the official act of Mr. Bonds alleged to have taken place in April 2016. Accordingly, the Indictment alleges a cognizable bribery charge based on the plain language of the Wisconsin statute.3
In effect, Mr. Islam's argument challenges the legal sufficiency of the evidence, an argument that is premature at this stage. Under the Federal Rules of Criminal Procedure, an indictment need only "be a plain, concise, and definite written statement of the essential facts charged." Fed. R. Crim. P. 7(c) ; see Bergrin , 650 F.3d at 265 () (quoting United States v. DeLaurentis , 230 F.3d 659, 660-61 (3d Cir. 2000) ). The Indictment meets that standard as to this part of Count Eight.
A separate portion of Count Eight must be dismissed. In addition to alleging use of an email server to carry out bribery in violation of Wisconsin law, Count Eight of the Indictment charges similar use of the server to carry out extortion in violation of the Hobbs Act, 18 U.S.C. § 1951. Extortion is defined within the statute as "the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right." 18 U.S.C. § 1951(b)(2). To...
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