United States v. Menendez

• Decision Date: 08 October 2015
• Docket Number: Cr. No. 15–155
• Citation: 137 F.Supp.3d 709
• Parties: United States of America, v. Robert Menendez and Salomon Melgen, Defendants.
• Court: U.S. District Court — District of New Jersey

137 F.Supp.3d 709

United States of America,

v.Robert Menendez and Salomon Melgen, Defendants.

Cr. No. 15–155

United States District Court, D. New Jersey.

Signed October 8, 2015

Peter Koski, Amanda Rose Vaughn, Joseph Patrick Cooney, Monique Tara Abrishami, U.S. Department of Justice, Washington, DC, for United States of America.

Abbe David Lowell, Chadbourne & Parke LLP, Washington, DC, Raymond M. Brown, Jenny R. Kramer, Chadbourne & Parke LLP, New York, NY, for Defendants.

OPINION

WALLS, Senior District Judge

Before the Court are five motions by Defendants Robert Menendez and Salomon Melgen to dismiss the indictment in this criminal action. Defendants challenge Counts One through Twenty–One of the indictment for failure to allege an "official act" within the meaning of the bribery statute, 18 U.S.C. § 201. Motion to Dismiss 10, ECF No. 57. They also move to dismiss each Count in the indictment for lack of specificity under the Fifth and Sixth Amendments. Motion to Dismiss 7, ECF No. 54. In their eleventh motion to dismiss, Defendants challenge the conspiracy charge in Count One on several unrelated grounds. Motion to Dismiss 11, ECF No. 58. In their twelfth motion, they challenge Count Two and Counts Nineteen through Twenty–One on several grounds. Motion to Dismiss 12, ECF No. 59. Finally, in their fourteenth motion, Defendants contend that the honest services fraud offenses alleged in Counts Nineteen through Twenty–One are multiplicitous with certain bribery charges and move for the Court to order the prosecution to elect to dismiss any multiplicitous Counts. Motion to Dismiss 14, ECF No. 61. Each of these arguments is addressed here except for Defendants' specificity arguments related to Count Twenty–Two, which are addressed in a separate opinion alongside Defendant Menendez's motion to dismiss that count. Decided after oral argument on September 17, 2015, Defendants' motions are denied.

The procedural and factual background of this case has been discussed at length in the Court's opinion on Defendants' Speech or Debate Clause motions, ECF No. 117, and need not be repeated here.

DISCUSSION

1. The indictment adequately alleges official acts within the meaning of § 201.

In their tenth motion to dismiss, Defendants argue that the acts allegedly taken by Senator Menendez on behalf of Dr. Melgen "do not constitute ‘official acts' within the meaning of the bribery statute." Mot. to Dismiss 10 at 4. The indictment alleges three categories of official acts: (1) Menendez's alleged attempts "to influence the visa proceedings of Melgen's foreign girlfriends," Indict. ¶¶ 70–113, (2) Menendez's advocacy to the State Department and to Customs and Border Protection (CBP) to advance interests that a company owned by Melgen had in the Dominican Republic, id. ¶¶ 114–143, and (3) Menendez's advocacy on behalf of Melgen to Executive Branch officials in the departments of Health and Human Services (HHS) and the Centers for Medicare and Medicaid Services (CMS) relating to a Medicare billing dispute. Id. ¶¶ 144–227. According to Defendants, decisions or actions on these matters were not within Senator Menendez's control. Mot. to Dismiss 10 at 5.

The term "official act" is defined by the bribery statute and means:

any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official's official capacity, or in such official's place of trust or profit.

18 U.S.C. § 201(a)(3). In 1914, applying an older but similar version of the bribery statute, the Supreme Court held that official acts could encompass an official's duties that are "clearly established by settled practice" rather than by written rules. United States v. Birdsall, 233 U.S. 223, 231, 34 S.Ct. 512, 58 L.Ed. 930 (1914) ; see also United States v. Carson, 464 F.2d 424, 433 (2d Cir.1972) ("The terms of the written definition of official act have not been altered to any substantial extent since their origin...."). More recently, the Supreme Court explained that officials often take actions that are "assuredly ‘official acts' in some sense" but are not official acts as defined by § 201(a)(3), such as a President or Secretary "receiving ... sports teams at the White House, visiting [a] high school, [or] speaking to ... farmers about USDA policy." United States v. Sun–Diamond Growers of California, 526 U.S. 398, 407, 119 S.Ct. 1402, 143 L.Ed.2d 576 (1999).

The D.C. Circuit has reconciled Birdsall and Sun–Diamond by explaining that Birdsall did not hold "that every action within the range of official duties automatically satisfies § 201's definition; it merely made clear the coverage of activities performed as a matter of custom." Valdes v. United States, 475 F.3d 1319, 1323 (D.C.Cir.2007) (emphasis in original); see also United States v. McDonnell, 792 F.3d 478, 509 (4th Cir.2015) ("[W]e are satisfied that the reach of § 201(a)(3) is broad enough to encompass the customary and settled practices of an office, but only insofar as a purpose or effect of those practices is to influence a [matter] that may be brought before the government."). In Valdes, the D.C. Circuit held that a police officer's "ascertainment of answers to questions" did not amount to a decision or action on an investigation and was not an official act, 475 F.3d at 1326, but the court made clear that its interpretation of § 201"easily covers," among other examples, "a congressman's use of his office to secure Navy contracts for a ... firm" because this would "concern inappropriate influence on decisions that the government actually makes." Id. at 1325.

In advancing their argument, Defendants primarily rely on United States v. Dansker, a case in which the vice-chairman of the Fort Lee Parking Authority was federally prosecuted under the Travel Act for traveling in interstate commerce with the intent to violate New Jersey bribery laws. 537 F.2d 40, 44, 46–47 (3d Cir.1976). The defendant, who was a builder as well as a public official, did not take action in his official capacity but halted his public advocacy against a developer seeking zoning variances for a project after receiving a large payment from that developer. Id. at 45. Dansker is not controlling because it turned on New Jersey bribery laws, although the state statute at issue is analogous to § 201 in requiring that a public official "possess[ ] at least the apparent ability to influence the particular public action involved." Id. at 49. The Circuit reversed the defendant's conviction in part because the government:

failed to produce any evidence whatsoever indicating that he had any ability, actual or apparent, to influence official decisions concerning the project in his official capacity, or that the alleged bribers believed he could do so by virtue of his public office. Indeed, on the record before us, it is not even clear that the developers were aware of the fact that [defendant] was the vice-chairman of the Fort Lee Parking Authority.

Id. at 50.

Senator Menendez's alleged advocacy on behalf of Melgen, which stretched across four different Executive Branch departments and agencies, Indict. ¶¶ 117, 132, 144, and reached as high as a cabinet Secretary, id. ¶¶ 209–220, in no way resembles the advocacy of a part time city official in Dansker that was done in his capacity "as a private citizen." 537 F.2d at 50. Nor does it resemble the political gestures and formalities such as visiting a high school that were described in Sun–Diamond. 526 U.S. at 407, 119 S.Ct. 1402. A Senator has formal legislative power over matters of immigration, diplomacy, and healthcare policy, including the power to call hearings and compel testimony, as Senator Menendez is alleged to have threatened to do during his advocacy to the State Department. Indict. ¶ 125. These powers are particularly relevant here because Senator Menendez served on the Committee on Finance, which oversaw HHS and CMS. Mot. to Dismiss 1, ECF No. 48, at 13. He also served as Chairman of the Subcommittee on Western Hemisphere, Peace Corps, and Narcotics Affairs from 2011 to 2013. Id. at 26.

Additionally, under clearly established settled practice, a Senator's non-legislative advocacy can influence the actions and decisions of Executive Branch officials. Cf. United States v. Brewster, 408 U.S. 501, 524, 92 S.Ct. 2531, 33 L.Ed.2d 507 (1972)("[M]any non-legislative activities are an established and accepted part of the role of a Member...."). As example, a Menendez staffer is alleged to have written that two "people from the [Dominican Republic] who wanted visas to visit Dr. [Melgen] got them.... In my view, this is only due to the fact that [Menendez] intervened." Indict. ¶ 106 (emphasis removed).

The official acts allegedly taken by Menendez satisfy 18 U.S.C. § 201(a)(3) and are consistent with cases in which non-legislative acts by Members of Congress were held to be official acts under that statute. See, e.g., United States v. Jefferson, 674 F.3d 332, 356 (4th Cir.2012) (Congressman's advocacy to foreign officials on behalf of business ventures after accepting bribes was an official act.); United States v. Biaggi, 853 F.2d 89, 98 (2d Cir.1988) (Congressman's advocacy to the Navy on behalf of a dry dock company was an official act.). Defendants' tenth motion to dismiss is denied.

2. The indictment contains sufficient factual orientation.

In their seventh motion to dismiss, Defendants challenge each Count of the indictment for a lack of specificity under the Fifth and Sixth Amendments. In a footnote to that motion, they also state that "as a technical matter," the conspiracy charge is multiplicitous and Counts Two through Twenty–Two are duplicitous because the charging language of Count One is incorporated by reference into subsequent counts. Mot. to Dismiss 7 at 10 n.3. Judge Posner rejected a similar argument in United States v. Cephus : "Only if read literally would each count be alleging two...