US v. Apple

• Decision Date: 15 May 1996
• Docket Number: No. 2:95 CR 83.,2:95 CR 83.
• Citation: 927 F. Supp. 1119
• Parties: UNITED STATES of America, Plaintiff, v. Nathan APPLE, Defendant.
• Court: U.S. District Court — Northern District of Indiana

927 F. Supp. 1119

UNITED STATES of America, Plaintiff, v. Nathan APPLE, Defendant.

No. 2:95 CR 83.

United States District Court, N.D. Indiana, Hammond Division.

May 15, 1996.

Patrick D. Hansen, Asst. U.S. Atty., U.S. Attorneys Office, Dyer, IN, for plaintiff.

Nick J. Thiros, Cohen and Thiros, Merrillville, IN, for defendant.

ORDER

LOZANO, District Judge.

This matter is before the Court on the Motion to Dismiss filed by Defendant, Nathan Apple, on October 27, 1995. For the reasons set forth below, this motion is DENIED.

BACKGROUND

Defendant, Nathan Apple, is charged with bribing an employee of the Indiana Department of Environmental Management ("IDEM"). The indictment states as follows: From February 4, 1991, through September 13, 1995, IDEM investigated property of A.S.K. Shredders, Inc. for possible violations of state civil and criminal statutes. The investigation focused at least in part on A.S.K.'s storage and disposal of tires.

As president of A.S.K., Apple met several times with IDEM agents, who informed him of the possible violations. As part of the IDEM investigation, IDEM's commissioner issued an order in May 1995 demanding a clean-up of A.S.K.'s property and fining Apple $10,000. In July 1995, Apple "knowingly, intentionally, and corruptly gave money to a person employed by IDEM, with the intent to influence or reward this person as an agent for IDEM in connection with a matter involving $5000 or more." (Indictment ¶ 5)

DISCUSSION

The Government does not face a particularly demanding standard in opposing a motion to dismiss an indictment. Generally, an indictment is sufficient as long as it does an adequate job of (1) alleging the elements of the charged offense, (2) apprising the defendant of the charges he or she will meet, and (3) enabling the defendant to raise any judgment under the indictment as a bar to future prosecution for the same offense. United States v. Ocampo, 890 F.2d 1363, 1373 (7th Cir.1989).

For the most part, a motion to dismiss an indictment is not a vehicle for resolving whether the prosecution can ultimately prove its case. United States v. Yasak, 884 F.2d 996, 1001 (7th Cir.1989); United States v. Mongelli, 794 F.Supp. 529, 530 (S.D.N.Y. 1992). Put another way, a motion to dismiss an indictment is more akin to a civil Rule 12(b)(6) motion than to a civil summary judgment motion. Here, Apple's arguments might require the Government to produce more detailed facts and evidence than it must at this stage, as the arguments seem to lie in the borderland between a face-of-the-indictment attack and a mini-trial. In any event, because the parties have willingly addressed the arguments, to the extent that is proper and possible the Court will do the same. See Mongelli, 794 F.Supp. at 530.

The provision that the indictment charges Apple with having violated is 18 U.S.C. section 666. Although the indictment does not specify a subsection of 666, the content of the indictment and the arguments of the parties reveal that Apple is charged with bribing a state official in violation of 666(a)(2). Focusing on the statutory language most relevant here, the elements of a section 666(a)(2) violation are roughly as follows:

(1) The defendant corruptly gave something of value to any person; (2) with intent to influence a state governmental agency that received more than $10,000 in federal funds in any year; (3) in connection with any business or transaction of the agency; (4) that involved anything of value of $5,000 or more.

18 U.S.C. § 666(a)(2); United States v. Bonito, 57 F.3d 167, 174 (2d Cir.1995), cert. denied, ___ U.S. ___, 116 S.Ct. 713, 133 L.Ed.2d 667 (1996). The fundamental purpose of the bribery statute is preserving "the integrity of" federal funds that support state government activities. Bonito, 57 F.3d at 172; United States v. Cicco, 938 F.2d 441, 444-45 (3d Cir.1991); Mongelli, 794 F.Supp. at 530; United States v. Little, 687 F.Supp. 1042, 1049 (N.D.Miss.1988).

Apple first argues that the indictment should be dismissed because it "does not allege facts showing how the federal funds were adversely affected by his allegedly criminal conduct." (Mot. ¶ 3) However, under Ocampo, the Government need not load the indictment with language detailing the facts of the alleged crime.

Still, Apple extends this argument a bit further into the Government's actual evidence and theory, and the Government seems to have come along for the ride. Apple contends that because his alleged bribe did not cause IDEM to lose any money or any other item of value, the bribe does not fall within the scope of section 666(a)(2). He stresses that since the Government's evidence suggests that he bribed an IDEM agent for the purpose of avoiding criminal fines, rather than civil fines imposed by IDEM, no IDEM funds would have been compromised by the alleged bribe. According to Apple, by the time he allegedly bribed the IDEM agent, IDEM had already fined him and was essentially done with him. The only measure left, and the one that Apple was trying to avoid, was a separate, full-blown criminal prosecution conducted by the prosecutor's office and not IDEM. Apple says that whether his bribe succeeded in stopping the criminal prosecution or not, the bribe would not have affected IDEM funds, meaning his offense is not covered by section 666(a)(2).

The Government stresses that the criminal charges Apple was facing could have cost Apple well over $5,000 in criminal fines. The Government also identifies IDEM as the requisite state agency that received over $10,000 in federal funds as required by element (2) above. What the Government has not said, however, is that Apple would have paid his criminal fines to IDEM.

Taken most literally, Apple's argument has no support in the statute or relevant cases. Nothing in the plain language of section 666(a)(2) says that the agency must suffer a pecuniary loss. Apple cites no case, and the Court has identified none, that says in so many words that the agency must suffer a pecuniary loss.

However, some decisions, including a very recent Second Circuit decision, have perhaps addressed Apple's argument from a different perspective. See United States v. Foley, 73 F.3d 484 (2d Cir.1996); United States v. Vona, 842 F.Supp. 1534 (W.D.N.Y.1994); Mongelli, 794 F.Supp. at 530. As noted, the statute requires that the agency "business" that was "connected" to the bribe "involved anything of value of $5,000 or more." 18 U.S.C. § 666(a)(2). From the perspective of these decisions, the issue becomes whether the Government can convict Apple for seeking to avoid fines that he would have paid not to IDEM, but to someone else. Put another way, the issue is whether the Government need show that Apple's bribe involved something of value to IDEM — or whether, instead, the Government can convict by showing merely that the bribe involved something of value to Apple. See Foley, 73 F.3d at 488; Vona, 842 F.Supp. at 1536; Mongelli, 794 F.Supp. at 530; see also Bonito, 57 F.3d at 172; United States v. Coyne, 4 F.3d 100, 111 (2d Cir.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 929, 127 L.Ed.2d 221 (1994).

At least until the Second Circuit's Foley decision, cases interpreting the phrase "involving anything of value of $5,000 or more" had mapped out a fairly broad interpretation of that facially broad language. In short, these cases suggest that in addition to tangible items like physical government property, the "thing of value" that must be "involved" in the agency business can include both intangible benefits to defendants and ultimate drains on the resources of the agency. See, e.g., Bonito, 57 F.3d at 172, 174 (determining that a bribe intended to influence a seven-figure real estate deal satisfied elements (3) and (4) set out above); Coyne, 4 F.3d at 111 (characterizing an undocumented interest-free loan from an architect to a county planning official as "something of value" although not specifying to whom); Vona, 842 F.Supp. at 1536-37; Mongelli, 794 F.Supp. at 530-31. More specific to Apple's argument, these cases also suggest that the thing-of-value element does not require that the defendant's bribe directly deprive the state agency of $5,000 in cash or property or otherwise directly affect agency funds. See id.

The first case to tackle the "of value to whom" question was Mongelli. The Mongelli defendants bribed officials to obtain business licenses. 794 F.Supp. at 529-30. In seeking dismissal of an indictment, the defendants argued that the licenses they obtained through the bribes were not worth $5,000 to the agency that issued them. Id. at 530. The Mongelli court had a different perspective:

The plain meaning of the statute ... does not refer to pecuniary loss to the agency. Section 666 does not require that the $5,000 "involved" be measured in terms of value to the agency: this would hardly constitute a reasonable criterion where the agency is engaged, not in buying or selling services, but allowing or not allowing activities to be carried on which have substantial financial value to licensees. One can hardly be heard to claim, for example, that a license to dump large amounts of waste is a valueless item.

Id. The Mongelli court continued by observing that since the licenses gave their holders the right to engage in a potentially profitable business activity, they held intrinsic market value that might have exceeded $5,000. Id. at 531. For the court, such intrinsic value to the defendants and others meant that the defendants' bribes involved a "thing of value" per the statute. See id. at 530-31.

After Mongelli, another New York district court interpreted section 666(a)(2) similarly. In Vona, the defendant owed a water bill and bribed an official to reduce the bill. 842 F.Supp. at 1535-36. In ruling on the thingof-value element, the Vona court reasoned that section 666(a)(2) "does not require either the gain to the defendant or the loss to the victim to be $5,000 or more. To...