United States v. Menendez

• Decision Date: 24 January 2018
• Docket Number: Cr. No. 15–155
• Parties: UNITED STATES of America, v. Robert MENENDEZ and Salomon Melgen, Defendants.
• Court: U.S. District Court — District of New Jersey

291 F.Supp.3d 606

UNITED STATES of America,

v.Robert MENENDEZ and Salomon Melgen, Defendants.

Cr. No. 15–155

United States District Court, D. New Jersey.

Signed January 24, 2018

Peter Koski, Assistant U.S. Attorney, U.S. Department of Justice, Amanda Rose Vaughn, Monique Tara Abrishami, U.S. Department of Justice Public Integrity Section, Criminal Division, Joseph Patrick Cooney, Criminal Division, Public Integrity Section, Washington, DC, for United States of America.

Abbe David Lowell, Norton Rose Fulbright US LLP, Kirk Ogrosky, Murad S. Hussain, Arnold & Porter LLP, Washington, DC, Raymond M. Brown, Gregg Howard Hilzer, Justin P. Kolbenschlag, Greenbaum Rowe Smith & Davis LLP, Iselin, NJ, Jenny R. Kramer, Norton Rose Fulbright US LLP, Jonathan D. Cogan, Pro Hac Vice, Kobre & Kim LLP, New York, NY, Matthew I. Menchel, Samuel A. Stern, Kobre & Kim, LLP, Miami, FL, for Defendants.

William H. Walls, Senior United States District Court Judge

Defendants Senator Robert Menendez ("Menendez") and Doctor Salomon Melgen ("Melgen") (together, "Defendants") move under Federal Rule of Criminal Procedure 29 for a judgment of acquittal. Defendants are charged in an eighteen-count superseding indictment with conspiracy to commit bribery and honest services fraud (Count 1), violating the Travel Act (Count 2), bribery (Counts 3–14), and honest services mail and wire fraud (Counts 15–17). Menendez is additionally charged with making false statements to a government agency (Count 18). After a nine-week trial, the jury failed to reach a verdict on all counts. For the following reasons, the Court denies the motion as to Counts 1–8, 15, 16, and 18, and grants the motion as to Counts 9–14 and 17.

FACTUAL AND PROCEDURAL BACKGROUND

The Court assumes the parties' familiarity with the facts for the purposes of this motion. As to the procedural history of this case, Defendants were arraigned under a superseding indictment on August 22, 2017. Jury selection began that day, and trial commenced on September 6. On October 11, at the close of the Government's case, Defendants made their first motion for acquittal. Oct. 11, 2017, Tr. at 88; ECF No. 241. Following oral argument and briefing by the parties, the Court denied the motion in part and reserved in part. Oct. 16, 2017, Tr. at 34–57. Defendants renewed their motion on October 30 at the close of all evidence. ECF No. 261. In addition, Menendez moved to dismiss Count 18 on the ground that the Government had not introduced evidence that venue is proper in this District. ECF No. 262. After the jury deadlocked and the Court declared a mistrial, Defendants again renewed their Rule 29 motion on November 30. ECF No. 281.

LEGAL STANDARD

Federal Rule of Criminal Procedure 29 requires the Court to enter a judgment of acquittal on "any offense for which the evidence is insufficient to sustain a conviction." Fed. R. Crim. P. 29(a). In ruling on a Rule 29 motion, the Court must determine whether any rational trier of fact could find proof of Defendants' guilt beyond a reasonable doubt based on the evidence presented at trial. United States v. Smith , 294 F.3d 473, 476 (3d Cir. 2002). In making that determination, the Court must view the evidence in its entirety and in the light most favorable to the Government. United States v. Hoffecker , 530 F.3d 137, 146 (3d Cir. 2008). That includes giving "the benefit of inferences that may be drawn from the evidence," which "may be considered probative even if it is circumstantial." United States v. Pecora , 798 F.2d 614, 618 (3d Cir. 1986). "[A] finding of insufficiency should be confined to cases where the prosecution's failure is clear." Smith , 294 F.3d at 477.

DISCUSSION

Defendants advance the following arguments in support of their Rule 29(a) motion, made at the close of the Government's case and renewed at the close of all evidence: (1) that the Government failed to prove a quid pro quo because McDonnell v. United States invalidated the "stream of benefits" theory of bribery, under which the Government brought much of its case; (2) that the Government failed to prove an official act satisfying McDonnell 's narrowed definition; (3) that inter-branch lobbying can never qualify as an official act; (4) that the Government failed to prove Menendez took an official action that he would not otherwise take; (5) that the counts alleging Majority PAC contributions as bribes are subject to strict scrutiny under Citizens United and that this prosecution does not satisfy that heightened requirement; (6) that the Government failed to prove an explicit quid pro quo regarding the political contribution counts; (7) that the Travel Act count must fail because the Government failed to prove a subsequent overt act in furtherance of the unlawful activity; and (8) that the false statements count against Menendez must fail because the Government has not proved that his omissions were material and made knowingly or willfully. Following Defendants' presentation of evidence, Menendez made the additional argument that the Government failed to prove by a preponderance of the evidence that venue in this district is proper on the false statements count.

I. Bribery Counts.

A public official is guilty of bribery when that person performs or agrees to perform an "official act" in exchange for something of value. 18 U.S.C. § 201(b)(2) (applying to a public official who "directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value ... in return for ... being influenced in the performance of any official act"); see McDonnell v. United States , ––– U.S. ––––, 136 S.Ct. 2355, 195 L.Ed.2d 639 (2016). One who gives or offers a thing of value to a public official is guilty of bribery if he does so "with intent to influence any official act." 18 U.S.C. § 201(b)(1). This requires the Government to prove the existence of a quid pro quo , or "a specific intent to give or receive something of value in exchange for an official act." United States v. Sun–Diamond Growers , 526 U.S. 398, 404–05, 119 S.Ct. 1402, 143 L.Ed.2d 576 (1999) (emphasis in original).

For a public official to be guilty of bribery, the jury must find that he "agreed to perform an ‘official act’ at the time of the alleged quid pro quo. " McDonnell , 136 S.Ct. at 2371. This agreement "need not be explicit and the public official need not specify the means that he will use to perform his end of the bargain." Id. It is sufficient if the public official "understands that he is expected, as a result of the payment, to exercise particular kinds of influence or to do certain things connected with his office as specific opportunities arise." United States v. Repak , 852 F.3d 230, 251 (3d Cir. 2017) (quoting United States v. Bradley , 173 F.3d 225, 231 (3d Cir. 1999) ). Consequently, a jury may find a quid pro quo if the Government shows "a course of conduct of favors and gifts flowing to a public official in exchange for a pattern of official actions favorable to the donor." United States v. Kemp , 500 F.3d 257, 282 (3d Cir. 2007) (emphasis in original) (quoting United States v. Jennings , 160 F.3d 1006, 1014 (4th Cir. 1998) ).

First Amendment concerns arise, however, when the alleged thing of value is a political contribution. United States v. Menendez , 132 F.Supp.3d 635, 642 (D.N.J. 2015). To prove that a political contribution was the subject of a bribe, the Government must prove an explicit quid pro quo. See McCormick v. United States , 500 U.S. 257, 273, 111 S.Ct. 1807, 114 L.Ed.2d 307 (1991) ("The receipt of such contributions is also vulnerable under the Act ..., but only if the payments are made in return for an explicit promise or undertaking ...."); United States v. Siegelman , 640 F.3d 1159, 1171 (11th Cir. 2011) (requiring explicit promise of official action when government alleges that campaign contributions are subject of bribery).

The Supreme Court in McDonnell recently narrowed the definition of "official act," holding unanimously that:

[A]n official act is a decision or action on a ‘question, matter, cause, suit, proceeding or controversy.’ The ‘question, matter, cause, suit, proceeding or controversy’ must involve a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee. It must also be something specific and focused that is ‘pending’ or ‘may by law be brought’ before a public official. To qualify as an ‘official act,’ the public official must make a decision or take an action on that ‘question, matter, cause, suit, proceeding or controversy,’ or agree to do so. That decision or action may include using his official position to exert pressure on another official to perform an ‘official act,’ or to advise another official, knowing or intending that such advice will form the basis for an ‘official act’ by another official.

136 S.Ct. at 2371–72.

a. A Rational Juror Could Conclude that Defendants Entered Into an Agreement to Exchange Things of Value for Specific Official Acts.

Defendants assert that the "stream of benefits" theory of bribery is no longer viable in light of McDonnell.¹ They argue that after McDonnell , the Government must prove that Defendants entered into an agreement to exchange a thing of value for a specific "official act" which was identified at the time of the agreement. The Court concludes that McDonnell is not antagonistic to the stream of benefits theory. A reading of the Supreme Court decision reveals an absence of definite conflict between the now-limited definition of official acts of a public official, and the stream of benefits theory, a governmental tool long used to prosecute bribery charges against public officials.

Defendants focus on the Supreme Court's statement in McDonnell that the Government must prove that "the public official agreed to perform an ‘official act’ at the time of the alleged quid pro quo. " McDonnell , 136 S.Ct. at 2371 (...