US v. Frega, Criminal No. 96-698.

Citation933 F. Supp. 1536
Decision Date09 July 1996
Docket NumberCriminal No. 96-698.
PartiesUNITED STATES of America, Plaintiff, v. Patrick FREGA, G. Dennis Adams, and James A. Malkus, Defendants.
CourtU.S. District Court — Southern District of California

Alan Bersin, U.S. Attorney, Charles LaBella, Phillip Halpern, Kevin Kelly, Assistant U.S. Attorneys, San Diego, CA, for U.S.

Dennis P. Riordan, Dylan L. Schaffer, of Riordan & Rosenthal, San Francisco, CA, for defendant Patrick R. Frega.

R. Jerry Coughlan, Barbara Howe Murray of Coughlan, Semmer & Lipman, San Diego, CA, for defendant James A. Malkus.

Mario Conte, Federal Public Defenders of San Diego, San Diego, CA, for defendant G. Dennis Adams.


RAFEEDIE, District Judge:*


Defendants Patrick Frega, G. Dennis Adams, and James Malkus have been indicted on one count of conspiracy to commit bribery in violation of 18 U.S.C. § 666 and sixteen counts of mail fraud in violation of 18 U.S.C. §§ 1341, 1346. All three defendants have moved the Court to dismiss Counts 1 and 2-17 of the indictment on the ground that they fail to state federal offenses. The Court read the papers filed in connection with the memorandum, held a hearing on Count 1 on June 4, 1996 and on Counts 2-17 on June 25, 1996, and has had the benefit of oral argument of counsel. The Court HEREBY DISMISSES Count 1 of the indictment for failure to state a federal offense, but DENIES the motion to dismiss Counts 2-17.1


In this case, the Court is confronted with grave allegations of a twelve year pattern of judicial corruption in the California Superior Court system in San Diego. During that time, Defendants Adams and Malkus were Superior Court judges, and Defendant Frega was a local plaintiff's attorney specializing in personal injury cases. Malkus has since resigned as a judge, Adams was removed by the California Commission on Judicial Performance,2 and Frega continues to practice law in San Diego.

The forty-five page, eighteen count indictment charges that Frega gave the former judges gifts with the intent of influencing or rewarding them in regard to cases in which he was counsel of record and in which they were presiding, and that the judges accepted these gifts with the understanding that they would be corruptly influenced. Count 1 charges bribery in violation of 18 U.S.C. § 666, Counts 2-17 charge mail fraud in violation of 18 U.S.C. §§ 1341, 1346, and Count 18 charges Frega alone with racketeering in violation of 18 U.S.C. § 1962.3

According to the indictment, Malkus presided over at least five cases in which Frega appeared.4 Of these cases, two resulted in $4 million verdicts for Frega's clients, and another in a $2 million settlement. Over the same period, Frega allegedly lavished on Malkus such gifts as a $612 health club membership, $9,900 in salary payments to Malkus' son for employment arranged by Frega with a former client, and over $3,500 in car repairs.

Similarly, Adams presided over or handled portions of at least seven cases in which Frega appeared. Of these, one resulted in a $5 million non-jury verdict in favor of Frega's client. The indictment does not disclose the results of the other cases. Over the same period, Frega supposedly paid over $1,700 for a professional writer to ghostwrite a novel for Adams, gave Adams a $2,000 computer, arranged for a former client to provide or contributed himself over $8,000 in car services to Adams and his family, arranged for the former client to sell a car to Adams at $1,000 below cost, contributed $4,000 and $2,200 toward the costs of cars for Adams' daughter and father respectively, and paid $614 for a new bed for Adams.

The mail fraud counts are based on an alleged scheme "to defraud the people of the State of California by depriving them of their right to the honest services of Judges of the State Superior Court in San Diego County performed free from bribery, undue influence, and deceit." (Indictment, 30 at ¶ 2). The fraudulent scheme alleged was again that Frega gave gifts, which the former judges accepted, with the intent to influence or reward Adams and Malkus in cases that they presided over and in which Frega was counsel of record.

The mailings that form the jurisdictional element of the crime are as follows:

Count 2: May 31, 1991"Notice of Case Management Conference";
Count 3: Aug. 26, 1991"Notice of Change of Address";
Count 4: Sept. 30, 1991"Ex Parte Application for Appointment of Settlement Judge";
Count 5: Sept. 30, 1991"Declaration of Plaintiff's Counsel";
Count 6: Oct. 10, 1991"Memorandum of Proposed Decision";
Count 7: Oct. 25, 1991"Request for Dismissal";
Count 8: Nov. 1, 1991"Letter from G. Dennis Adams" (to Commission on Judicial Performance);
Count 9: Nov. 5, 1991"Letter from Michael I. Greer" (to Commission on Judicial Performance);
Count 10: Nov. 14, 1991"Letter from G. Dennis Adams" (to Commission on Judicial Performance);
Count 11: Nov. 26, 1991"Order";
Count 12: Dec. 26, 1991"Letter from G. Dennis Adams" (to Commission on Judicial Performance);
Count 13: Apr. 7, 1992"Letter from Patrick R. Frega" (to Commission on Judicial Performance);
Count 14: Apr. 8, 1992"Letter from James E. Fitting" (to Commission on Judicial Performance);
Count 15: Apr. 14, 1992"Opposition to Objections to Proceedings before James A. Malkus";
Count 16: Apr. 14, 1992"Verified Answer of Judge Malkus"; and
Count 17: Nov. 10, 1993"Letter from James A. Malkus" (to Commission on Judicial Performance).
I. Count 1 — 18 U.S.C. § 666 (Bribery)

Although the defendants mount a number of attacks on Count 1 of the indictment, the only one that the Court finds persuasive is the jurisdictional challenge to the reach of 18 U.S.C. § 666.5 Since that attack is dispositive, the Court need not and therefore does not reach the other issues.

The primary issue in this case is whether § 666 reaches conduct of the sort alleged in Count 1 — conduct that may generally be described as bribery and illegal gratuities.6 Resolution of this matter is one of statutory interpretation.

The general rule of statutory interpretation is that the Court is to begin with the language of the statute itself. Randall v. Loftsgaarden, 478 U.S. 647, 656, 106 S.Ct. 3143, 3149, 92 L.Ed.2d 525 (1986); Reiter v. Sonotone Corp., 442 U.S. 330, 337, 99 S.Ct. 2326, 2330, 60 L.Ed.2d 931 (1979). If the language of the statute "is sufficiently clear in its context and not at odds with the legislative history," then there is no need to consider other policy issues. Randall, 478 U.S. at 656, 106 S.Ct. at 3149. Moreover, the Court is "not free to substitute legislative history for the language of the statute." Aronsen v. Crown Zellerbach, 662 F.2d 584, 588 n. 7 (9th Cir.1981).

A. Ambiguities in the Statute As Applied

In this case, however, the Court concludes that the plain language of § 666 is not clear as to whether it applies to the conduct alleged in this case. First, where an interpretation of a federal criminal statute would upset the balance of power between the federal and state governments, Congress must express its intention clearly for a court to adopt that interpretation. United States v. Bass, 404 U.S. 336, 349, 92 S.Ct. 515, 523, 30 L.Ed.2d 488 (1971). Second, the Court has difficulty determining how the particular transactions in this matter — the cases over which Malkus and Adams presided — would be valued so as to satisfy the $5,000 transaction element of § 666.

1. Federal-State Balance

Under the Government's theory of prosecution, § 666 would become a federal antibribery statute. Every state falls within the $10,000 federal funding jurisdiction element, and thus, every state employee would fall within the jurisdiction of the statute.7 There remains, of course, the $5,000 transaction requirement, but according to the Government, any such transaction would be covered by § 666, even if there were no connection at all to federal funds.

This reading of § 666 is certainly not implausible. However, it would drastically change the balance of power between federal and state governments by bringing conduct that had previously been entirely in the realm of the states within the federal purview. Yet, "unless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance." Bass, 404 U.S. at 349, 92 S.Ct. at 523.

In Bass, the issue was whether 18 U.S.C. § 1202, which made it a crime for a felon to "receive, possess, or transport in commerce or affecting commerce" any firearm, required the Government to prove that a defendant had possessed a firearm "in commerce or affecting commerce," or whether that phrase modified only the prohibited act of transportation. Confronted with an ambiguous statute and equally ambiguous legislative history, the Supreme Court concluded that the phrase applied to the prohibited act of possession. Otherwise, the statute would have made general possession of firearms by felons criminal and "would alter sensitive federal-state relationships and could overextend limited federal police resources." Id.

The situation in this case is akin to that in Bass. Although Congress may well have the constitutional authority to enact a national anti-bribery statute, such a statute would thrust the federal government into prosecuting "conduct readily denounced as criminal by the States." Id. In this regard, it is significant that California has enacted statutes to prohibit the bribery of state court judges. Calif. Penal Code § 92 states that:

every person who gives or offers to give a bribe to any judicial officer ... with intent to influence his ... decision ... is punishable by imprisonment in the state prison for two, three or four years.

Similarly, Calif. Penal Code § 93 states that

every judicial officer ... who asks, receives, or agrees to receive, any bribe, upon any agreement or

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  • U.S. v. McCormack
    • United States
    • U.S. District Court — District of Massachusetts
    • November 25, 1998
    ...(indictment alleging a § 666 violation dismissed because the program did not meet the $10,000 standard); United States v. Frega, 933 F.Supp. 1536 (S.D.Cal.1996) (indictment alleging § 666 violation dismissed, the court finding that the facts alleged, bribery of California Superior Court jud......
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    ...§ 666 in the original indictment on the ground that the conduct in question did not threaten federal funds. See United States v. Frega, 933 F.Supp. 1536, 1543 (S.D.Cal.1996).5 After that count was dismissed, a second superseding indictment was filed charging them with a RICO conspiracy. Mal......
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