United States v. Jordan
| Decision Date | 26 February 2019 |
| Docket Number | CRIMINAL ACTION NO. 4:18-CR-87 |
| Citation | 364 F.Supp.3d 670 |
| Parties | UNITED STATES of America v. Laura JORDAN and Mark Jordan |
| Court | U.S. District Court — Eastern District of Texas |
Christopher Andrew Eason, U.S. Attorney's Office, Plano, TX, for United States of America.
This matter is before the Court on the Government's Response to the Order Overruling its Prior Objections [Dkt. # 119] and the Jordans' Objections to the Government's Proposed Instructions [Dkt. # 126].
The Government alleges that, while serving as Mayor of Richardson, Defendant Laura Jordan exchanged votes on apartment development projects for cash, sex, and luxury hotel stays, among other benefits from fellow Defendant Mark Jordan, the apartment developer. The Jordans are charged with Honest Services Wire Fraud based on bribery in violation of 18 U.S.C. §§ 1343, 1346. The corresponding Fifth Circuit Pattern Jury Instructions (the "Pattern Instructions") advise that bribery should be defined "pursuant to 18 U.S.C. §§ 201(b) or 66[6] or state law." See FIFTH CIRCUIT PATTERN JURY INSTRUCTIONS (Criminal Cases) §§ 2.57 (2015). Sections 201 and 666 are similar but not identical. Section 201 criminalizes the offer or receipt of "anything of value" to influence a federal official in the performance of an official act. 18 U.S.C. § 201(b). Section 666, on the other hand, criminalizes corruptly giving or receiving anything of value with the intent to influence or reward an agent for a state or local government, among other entities, that receive $ 10,000 in federal funds per year. Id. § 666. Because Ms. Jordan was a local official at the time of the alleged bribery scheme, the Court found that bribery must be defined pursuant to 18 U.S.C. § 666 or the state bribery statute (Dkt. # 91 at p. 7).
Despite previously stating that it would "so define bribery" (Dkt. # 68 at pp. 7–8),1 the Government objected to the Court's Order (Dkt. # 93). The Government argued that any definition consistent with the concept of public bribery is sufficient and that, to the extent bribery should be defined to a particular statute, it can be defined pursuant to § 201 (Dkt. # 68 at pp. 8–10). Although the Government may have been judicially estopped from raising these arguments, see New Hampshire v. Maine , 532 U.S. 742, 749, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001) () (quoting Pegram v. Herdrich , 530 U.S. 211, 226 n.8, 120 S.Ct. 2143, 147 L.Ed.2d 164 (2000) ), out of an abundance of caution, the Court considered the objections and found them unconvincing (see Dkt. # 111). The Court then directed the Government to define bribery pursuant to either 18 U.S.C. § 666 or the state bribery statute, and directed both parties to submit revised jury instructions consistent with the Government's election.
The Government has since filed additional objections,2 but has also indicated that it would elect to define bribery pursuant to § 666 if required to comply with the Court's Order.3 The Parties then submitted new proposed jury instructions assuming that § 666 applies, which reveal additional disagreements on how to advise the jury on honest services wire fraud.
A trial court has wide discretion on how jury instructions are to be prepared. See Dahlen v. Gulf Crews, Inc. , 281 F.3d 487, 494 (5th Cir. 2002) (). This discretion does not, however, relieve the court of its independent obligation " ‘to charge the jury on all essential questions of law, whether requested or not.’ " See Kelly v. South Carolina , 534 U.S. 246, 256, 122 S.Ct. 726, 151 L.Ed.2d 670 (2002) (quoting C. Wright, Federal Practice and Procedure § 485, p. 375 (3d ed. 2000) ). After all, " ‘[t]he primary purpose of jury instructions is to define with substantial particularity the factual issues, and clearly instruct the jurors as to the principles of laws which they are to apply in deciding the factual issues involved in the case before them.’ " See United States v. Cronn , 717 F.2d 164, 170 (5th Cir. 1983) (quoting United States v. Gilbreath , 452 F.2d 992, 994 (5th Cir. 1971) ). This means that the jury instructions must at least ensure the Government satisfies "its burden to prove each element of the crime beyond a reasonable doubt." See Ducros v. Cain , No. 09-6977, 2011 WL 1885478 at *10 (E.D. La. Apr. 25, 2011) (citing Francis v. Franklin , 471 U.S. 307, 325–36, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985) ).
The Parties dispute whether bribery should be defined pursuant to a particular bribery statute, as the Court has previously ordered,4 and how to advise the jury even assuming it should be. The Court addresses these issues in turn.
The Parties dispute how to advise the Jury on Honest Services Wire Fraud based on bribery under 18 U.S.C. §§ 1343, 1346. Section 1343 criminalizes "schemes to defraud," which § 1346 defines to include schemes to deprive the public of honest services. 18 U.S.C. §§ 1343, 1346. To save § 1346 from being impermissibly vague, in Skilling v. United States , the Supreme Court interpreted "honest services" narrowly "to encompass only bribery and kickback schemes." 561 U.S. 358, 412, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010). The Supreme Court found this interpretation definite and consistent with congressional intent because § 1346 was "draw[n] from federal statutes proscribing—and defining—similar crimes." See id. at 412–13, 130 S.Ct. 2896. The Fifth Circuit has since held that prosecutions for honest services wire fraud under §§ 1343, 1346 may be based on violations of an underlying federal or state bribery or kickback statute. See United States v. Teel , 691 F.3d 578, 584 (5th Cir. 2012) ().
The Government contends that bribery does not need to be defined pursuant to a particular statute. It, instead, maintains that any definition consistent with the concept of public bribery is sufficient. The Court disagrees. United States v. Brumley is instructive. 116 F.3d 728, 733–35 (5th Cir. 1997) (en banc). In that case, an en banc panel of the Fifth Circuit considered the extent to which the honest services statute governed conduct by state officials. The Fifth Circuit noted that, by its plain meaning, the deprivation of "honest services" contemplates that a public official has consciously acted unfaithfully to the interests of her employer—as opposed to conduct simply amounting to the appearance of impropriety. See id. at 734. The Fifth Circuit consequently held that, to commit honest services wire fraud, the state official must have engaged in conduct "close to bribery." See id. After all, an employee has not acted unfaithfully simply because there is an appearance of impropriety.
But because there was "nothing to suggest that Congress was attempting in § 1346 to garner to the federal government the right to impose upon states a federal vision of appropriate services—to establish, in other words, an ethical regime for state employees," the Fifth Circuit added that a state official can be charged with the deprivation of honest services only if she has also violated a duty owed under state law. See id. at 734 (). It reasoned that "[s]uch a taking of power would sorely tax separation of powers and erode our federalist structure." See id. This meant that, after Brumley , a defendant could commit honest services wire fraud through bribery only if she violated a statute applicable to her by engaging in conduct close to bribery—as opposed to conduct that would violate a mere gratuity statute. See id. (citing United States v. Sawyer , 85 F.3d 713, 734–35 (1st Cir. 1996) ).
The Fifth Circuit has reiterated Brumley 's holding on several occasions, see, e.g. United States v. Whitfield , 590 F.3d 325, 348 (5th Cir. 2009), even after other appellate courts reached contrary conclusions, see Sorich v. United States , 555 U.S. 1204, 129 S.Ct. 1308, 173 L.Ed.2d 645 (2009) (Dissenting, Scalia, J.) (). For instance, in Whitfield , two former Mississippi judges (the ) were charged with honest services wire fraud based on bribery, as defined by a Mississippi statute. The State Judges argued that the jury instructions failed to require the Government to prove an explicit quid pro quo in connection with the bribery scheme at issue. In rejecting this argument, the Fifth Circuit explained that:
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