United States v. Rowland

• Decision Date: 08 July 2014
• Docket Number: Criminal No. 3:14cr79 (JBA)
• Court: U.S. District Court — District of Connecticut
• Parties: UNITED STATES OF AMERICA, v. JOHN G. ROWLAND.

UNITED STATES OF AMERICA, v. JOHN G. ROWLAND.

Criminal No. 3:14cr79 (JBA)

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

July 8, 2014

RULING DENYING DEFENDANT'S MOTION TO

DISMISS THE SUPERSEDING INDICTMENT

Defendant John G. Rowland moves [Doc. # 36] to dismiss the Superseding Indictment, contending that the Government has failed to adequately allege that he agreed to engage in illegal conduct. For the reasons that follow, Defendant's motion will be denied.

I. Background

The Superseding Indictment alleges that Mr. Rowland "devised a scheme to work" as a consultant for two congressional candidates in Connecticut and drafted fictitious contracts in order to obscure from the public and the Federal Election Commission ("FEC") his role in these campaigns. (Superseding Indictment [Doc. # 38] ¶ 17.) Beginning in October 2009, Mr. Rowland allegedly proposed to "Candidate 2" that he work as a consultant on his congressional race and in order to "conceal the payments to ROWLAND, which Candidate 2's campaign would otherwise be required to report to the FEC, ROWLAND proposed to be paid through a separate corporate entity, that is, the Animal Center," an animal rescue and adoption center owned by Candidate 2. (Id.) In order "to make the illegal arrangement appear legitimate, ROWLAND drafted andproposed to enter into a sham consulting contract with Candidate 2, pursuant to which ROWLAND would purportedly perform work for the Animal Center," thereby preventing "campaign contributions and expenditures from being reported to the FEC and the public." (Id.) On October 23, 2009, Mr. Rowland allegedly provided Candidate 2 with a draft contract (the "Draft Contract") outlining his consulting arrangement with the Animal Center when Mr. Rowland was in fact "proposing to perform paid campaign work for Candidate 2's Congressional campaign." (Id. ¶ 19.) Mr. Rowland is alleged to have created this "fictitious contract" in order to conceal from the FEC and the United States Department of Justice ("DOJ") that the payments made under this contract "would, in fact, be in consideration for work performed by ROWLAND on behalf of Candidate 2's campaign for election to the U.S. House of Representatives." (Id. ¶ 26.)

In September 2011, Mr. Rowland allegedly proposed a similar arrangement to Lisa Wilson-Foley, who was a candidate for the U.S. House of Representatives for Connecticut's Fifth Congressional District and who is charged separately as a co-conspirator. (Id. ¶¶ 3, 28-29.) Mr. Rowland, Ms. Wilson-Foley, and her husband Brian Foley, also charged separately, allegedly conspired to conceal Mr. Rowland's role as a consultant in Ms. Wilson-Foley's campaign by having Mr. Foley pay Mr. Rowland's $5000 per month fee and routing it through the Real Estate Company that Mr. Foley owned to the law firm (the "Firm") of Attorney 1, who worked for the Nursing Home Company, which Mr. Foley also owned. (Id. ¶ 35(c).) In furtherance of this conspiracy, they allegedly created and executed a fictitious consulting agreement (the "2011 Agreement") purportedly between Mr. Rowland and the Firm and agreed that Mr. Rowland would provide "nominal services to the Nursing Home Company in order tocreate a 'cover' or pretext that he was being paid for providing consulting services to the Nursing Home Company when, in fact, he was being paid for his work on behalf of Wilson-Foley's campaign." (Id. ¶ 34(c).) The Superseding Indictment alleges that in doing so, Mr. Rowland and the Foleys concealed from the FEC and the public Mr. Foley's unlawful campaign contributions to his wife's campaign by causing the campaign to file disclosure reports with the FEC that failed to report these contributions, which were in excess of the limits set by federal election law. (Id. ¶ 34(d).)

The Superseding Indictment charges falsification of records related to a federal investigation in violation of 18 U.S.C. § 1519 as to the Draft Contract (Count One) and the 2011 Agreement (Count Three); Conspiracy in violation of 18 U.S.C. § 371 (Count Two); causing false campaign contribution disclosure reports to be filed with the FEC in violation of 18 U.S.C. §§ 1001(a)(2) and 2 (Counts Four and Five); and illegal campaign contributions in violation of 2 U.S.C. §§ 441a(1)(A), 441a(f), and 437(g)(d)(1)(a)(ii) (Counts Six and Seven).¹

II. Discussion

"It is well settled that 'an indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of futureprosecutions for the same offense.'" United States v. Alfonso, 143 F.3d 772, 776 (2d Cir. 1998) (quoting Hamling v. United States, 418 U.S. 87, 117 (1974)). Although "an indictment must 'charge[ ] a crime with sufficient precision to inform the defendant of the charges he must meet and with enough detail that he may plead double jeopardy in a future prosecution based on the same set of events,'" it "need do little more than to track the language of the statute charged and state the time and place (in approximate terms) of the alleged crime." Id. (quoting United States v. Stavroulakis, 952 F.2d 686, 693 (2d Cir. 1992)) (alterations in original). "[T]he government need not particularize all of its evidence." United States v. Cephas, 937 F.2d 816, 823 (2d Cir. 1991).

"Unless the government has made what can fairly be described as a full proffer of the evidence it intends to present at trial . . ., the sufficiency of the evidence is not appropriately addressed on a pretrial motion to dismiss an indictment" and the allegations in the indictment must be accepted as true. Alfonso, 143 F.3d at 776-77 (reversing dismissal of an indictment when the district court "looked beyond the face of the indictment and drew inferences as to the proof that would be introduced by the government at trial" to satisfy an element of the charge); accord Costello v. United States, 350 U.S. 359, 363 (1956) (If "valid on its face," a grand jury indictment "is enough to call for trial of the charge on the merits." (internal citations omitted)).

A. Counts One and Three (Falsification of Records)

Mr. Rowland contends that Counts One and Three charging falsification of records related to a federal investigation in violation of 18 U.S.C. § 1519 must be dismissed for two reasons. First, he claims that § 1519 only applies to "the falsification of existing documents, not the creation of new documents" that may be false. (Def.'s Mem.Supp. [Doc. # 36-1] at 7 (emphasis in original).) Second, he contends that the Draft Contract and 2011 Agreement were not false. (Id. at 10.) For the reasons that follow, the Court rejects both propositions.

18 U.S.C. § 1519 provides:

Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.

1. Falsification of Documents Allegedly Created by Defendant

Counts One and Three allege that by creating the Draft Contract and the 2011 Agreement Defendant "did knowingly falsify and make material false entries in a document with the intent to impede, obstruct, and influence the investigation and proper administration of that matter." (Superseding Indictment ¶¶ 26, 37.) Defendant offers four reasons why to "falsify" and to make "false entries in a document" as used in § 1519 and the Superseding Indictment applies only to pre-existing documents. First, he contends that the "plain meaning" of "falsifies" is "to make a document false" and "[t]o make a false entry in a document connotes the making of a false statement in a form document," and both "presume a previously existing document." (Def.'s Mem. Supp. at 7-8.)

The Second Circuit has not yet addressed this issue, Defendant cites no cases in support of his interpretation, and as he acknowledges (see id. at 7 n.4), other courts have rejected his interpretation of § 1519. See United States v. Stevens, 771 F. Supp. 2d 556, 563(D. Md. 2011) ("No federal court has endorsed [the defendant's] argument that a document must be pre-existing to be subject to § 1519's proscriptions. By contrast, many federal courts have held that § 1519 applies equally to one who takes a pre-existing document and adds or deletes information from it to make it false, and to one who creates a false document from whole cloth.") (collecting cases).

For example, in United States v. Hunt, 526 F.3d 739, 744 (11th Cir. 2008), the defendant argued that § 1519 did not provide fair notice as required by the Due Process Clause that his false statement in a police report that he drafted regarding the use of force was within the ambit of the statute, because the language in the statute "'alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry' assumes there is evidence already existing upon which these acts could be performed." The Eleventh Circuit rejected this argument, holding that while the defendant "created the document in which he made the false statement, such an act is clearly covered by the language of the statute" and while the references to "[a]lteration, destruction, mutilation and concealment certainly suggest § 1519 is concerned partially with evidence destruction, . . . it is not solely concerned with destruction or tampering" and "[n]othing suggests the document mentioned in § 1519 must be already existing at the time the false entry was made." Id. at 744 (emphasis in original); see also United States v. Schmeltz, 667 F.3d 685, 688 (6th Cir. 2011) ("[Section 1519] plainly criminalizes the creation of a false document.").

The...