JAMES C. FOX, Senior United States District Judge.
Before the court is Defendant's motion to dismiss the superseding indictment for failure to state an offense pursuant to Rule 12(b)(3)(B)(v) of the Federal Rules of Criminal Procedure. [DE 71]. The Government responded and Defendant replied. [DEs 84-85].
On November 3, 2015, a grand jury returned a three-count indictment against Defendant — a North Carolina superior court judge — charging him with bribery of a public official, 18 U.S.C. § 201(b)(1) (count 1), providing an illegal gratuity to a public official, 18 U.S.C. § 201(c)(1)(A) (count 2), and attempted influence of an official proceeding, 18 U.S.C. § 1512(c)(2)
On August 23, 2016, a successor grand jury returned a superseding indictment, alleging the same criminal violations as the original indictment. Unlike the original indictment, which included a four-page factual background, the superseding indictment is an elements-only indictment. According to the Government, the superseding indictment incorporates "a handful of technical revisions" in light of the United States Supreme Court's intervening decision in McDonnell v. United States, ___ U.S. ___, 136 S.Ct. 2355, 195 L.Ed.2d 639 (2016).
II. STANDARD OF REVIEW
To warrant dismissal under Rule 12(b)(3)(B)(v), a defendant must "demonstrate that the allegations therein, even if true, would not state an offense."
Defendant seeks dismissal of the superseding indictment for failure to state an offense. FED. R. CRIM. P. 12(b)(3)(B)(v). Defendant argues both count one and count two fail to allege an "official act" under the federal bribery statute, 18 U.S.C. § 201, as interpreted by McDonnell. Def.'s Mot. Dismiss at 4. As for count three — violation of 18 U.S.C. § 1512(c)(2) — Defendant avers it fails to allege corrupt conduct. Id. at 9. Defendant argues further that the statute is "unconstitutional as applied and/or on its face." Id. at 4.
A. The superseding indictment is legally sufficient to state the charges of payment of a bribe and an illegal gratuity to a public official.
Counts one and two charge Defendant with payment of a bribe and an illegal gratuity to a public official, and in particular, an unidentified Federal Bureau of Investigation ("FBI") task force officer ("TFO").
The superseding indictment is brief and light on supporting facts, in contrast with the considerable detail included in the original indictment. That said, counts one and two adequately track the statutory language of 18 U.S.C. § 201(b)
Clarification of "official act" — McDonnell v. United States, ___ U.S. ___, 136 S.Ct. 2355, 195 L.Ed.2d 639 (2016)
In McDonnell, the Supreme Court considered the "proper interpretation" of an "official act" under the federal bribery statute. In that case, the government indicted former Virginia Governor Robert McDonnell and his wife on bribery charges related to their acceptance of $175,000 in "loans, gifts, and other benefits" from Jonnie Williams, the chief executive officer
Accordingly, pursuant to § 201(a)(3), the government was required to prove that McDonnell committed (or agreed to commit) an "official act" in exchange for the benefits from Williams. Under that statute, an official act is "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). The government alleged that Williams bribed McDonnell in exchange for "at least five" official acts: (1) the arranging of meetings with state officials regarding Anatabloc (an anatabine-based dietary supplement),
Relevant here, McDonnell argued the government's definition of "official acts" was overly broad and the Court agreed. In reviewing the "official acts" definition, the Court observed it consists of two requirements: (1) identification of a "`question, matter, cause, suit, proceeding or controversy' that `may at any time be pending' or `may by law be brought' before a[ny] public official;" and (2) proof "the public official made a decision or took an action `on' that question, matter, cause, suit, proceeding, or controversy, or agreed to do so." Id. at 2368. The Court interpreted "question, matter, cause, suit, proceeding or controversy" to "connote," "refer," or "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." Id. at 2368-69. The Court interpreted "pending" and "may by law be brought" to indicate a matter that is "relatively circumscribed — the kind of thing that can be put on an agenda, tracked for progress, and then checked off as complete." The Court interpreted "may by law be brought" as conveying "something within the specific duties of an official's position — the function conferred by the authority of his office." Id. at 2369. Finally, the Court stated "`any' conveys ... the matter may be pending either before the public official who is performing the official act, or before another public official." Id.
Applying the first requirement to the facts before it, the Court stated a "typical meeting, call, or event is not itself a question or matter."
The Court then considered the second requirement — whether the government proved action by McDonnell on these three "questions or matters." Id. That is, whether McDonnell's hosting of events, meeting with other officials or speaking with interested parties qualified as a "decision or action on" the pending questions of whether to initiate a study, allocate grant money or alter the coverage of the state employee health insurance plan." Id. at 2359, 2370. In finding such acts did not so qualify, the Court explained an agreement (explicit or implicit) to initiate a research study, allocate grant money or alter the health insurance plan was required. Such an agreement could be made by (1) McDonnell, (2) another official upon McDonnell's advice, where McDonnell used his position as Governor to provide said advice "knowing or intending that such advice" would be acted upon, or (3) another official who made the agreement due to McDonnell using his position as Governor to exert pressure on that official. Id. at 2370-72. The Court emphasized that a finding of intent on the part of the public official is not required, "so long as he agrees" to perform the official act. Id. at 2371. Moreover, the public official "need not specify the means that he will use to perform his end of the bargain."
In sum, for an act by a public official to qualify as an "official act" under the federal bribery statute:
In evaluating the performance requirement, it is not necessary that the public official intend to perform the act. Rather, he must merely agree (explicitly or implicitly) to do so. Also, a different official may actually perform the act so long as the public official used his official position to either exert pressure on the other official or provide advice to that official, "knowing or intending that such advice will form the basis for an official act." Id. at 2370.
The Government adequately alleges official acts in the superseding indictment within the meaning of 18 U.S.C. § 201, as interpreted by McDonnell.
The court finds the superseding indictment sets forth two "questions or matters":
a. Identification requirement
The court finds these alleged "questions or matters" satisfy the identification requirement. First, both involve a "focused and concrete formal exercise of governmental power." In particular, both are governed by the Stored Communications Act ("SCA"), 18 U.S.C. §§ 2701-2712. See 18 U.S.C. § 2703(a)-(b), (d) (describing when and how a "governmental entity" may require a service provider to disclose the contents of a wire or electronic communication"); 18 USCS § 2707(g) (proscribing disclosure of records obtained under the SCA).
Second, obtaining text messages and then disclosing them to a third-party falls squarely within the specific duties of a TFO for the FBI. The FBI qualifies as a "governmental entity" under the SCA, which is defined in relevant part as a "department or agency of the United States." 18 U.S.C. § 2711(4). The FBI possesses the authority to "enforce the laws of the United States." 28 U.S.C. § 540C(b)(4)(ii). This authority necessarily includes the initiation of an investigation based upon the evidence of criminal conduct. Where relevant, such investigation may include "lawfully acquir[ing] many different types of data from ... cell phones, [including] ... the contents of conversations between two people." United States v. Myles, No. 5:15-CR-172-F-2, 2016 U.S. Dist. LEXIS 55328, at *13, 2016 WL 1695076, at *5 (E.D.N.C. Apr. 26, 2016) (explaining under the SCA, a law enforcement official may, upon the proper showing, direct the production of stored communications in the hands of third-party service providers). Moreover, under the SCA, the FBI possesses authority to disclose such content. 18 U.S.C. § 2707(g). The disclosure of this content, however, should only be "made in the proper performance of the official functions of the [law enforcement] officer ... making the disclosure." 18 U.S.C. § 2707(g) (emphasis added). A law enforcement officer's failure to properly perform his official functions subjects him to the mandatory commencement of a disciplinary proceeding. 18 U.S.C. § 2712(c).
b. Performance requirement
As for the performance requirement, the Government does not allege that the TFO actually directed Verizon to produce the requested communications. Nor does the Government allege the actual disclosure of the text messages by the TFO to Defendant. Moreover, the superseding indictment contains no allegation of an express agreement to perform these "questions or matters." The superseding indictment does include, however, the allegation that Defendant "did, in fact, give the [TFO] $100.00 in cash." This allegation indicates the TFO implicitly agreed to direct Verizon to produce the requested stored communications to the TFO and to disclose the contents of Defendant's wife's text messages to Defendant.
In sum, the court finds the superseding indictment states an offense as to counts one and two, as both counts adequately track the relevant statutory language and the superseding indictment sufficiently pleads the "official acts" at issue.
B. Count three of the superseding indictment is not unconstitutionally vague as applied.
Defendant argues count three — violation of 18 U.S.C. § 1512(c)(2) — fails to
Title 18, United States Code, Section 1512(c)(2) provides, in relevant part, that "[w]hoever corruptly ... influences ... any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years or both." For purposes of § 1512, an "official proceeding" is defined in relevant part as "a proceeding before a ... United States magistrate [judge]." 18 U.S.C. § 1515(a)(1)(A).
Defendant argues the statute as applied to his conduct — that is, attempting "to cause the federal magistrate to compel Verizon to produce [Defendant's] wife's text messages to the [TFO], whereas [Defendant] well knew that that [sic] the text messages were for his personal use" — is unconstitutionally vague. Def.'s Mot. at 9. According to Defendant, count three "attempts to criminalize innocent behavior." Id. at 14. In defending his position, Defendant opines that
Id. at 8-9.
In order to comply with the requirements of due process, a statute must give fair warning of the prohibited conduct. Bouie v. City of Columbia, 378 U.S. 347, 351, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964). A statute is unconstitutionally vague under the due process clause if it (1) "fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits;" or (2) "authorizes or even encourages arbitrary and discriminatory enforcement." Hill v. Colorado, 530 U.S. 703, 732, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000). Where, as here, a statute does not involve rights guaranteed by the First Amendment,
Although the statute does not define "corrupt,"
Here, the court finds the superseding indictment sufficiently alleges cognizable conduct under § 1512(c), and in particular, attempting to cause a federal magistrate judge to compel a phone company to produce a subscriber's text messages to a law enforcement officer for which no law enforcement basis exists. Such action by a federal magistrate judge would constitute an improper discharge of his or her duties. See Myles, 2016 U.S. Dist. LEXIS 55328, at *17-18, 2016 WL 1695076, at *6 (explaining the standards law enforcement officers must meet for obtaining cell site information). The court finds also that there is no question that a person of "ordinary intelligence" would have fair warning that such an attempt violates the law. United States v. McFadden, 753 F.3d 432, 439 (4th Cir. 2014), vacated and remanded on other grounds, ___ U.S. ___, 135 S.Ct. 1039, 190 L.Ed.2d 908 (2015) (explaining the vagueness inquiry "generally requires an examination of what a person of `common intelligence' would reasonably understand the statute to prohibit, rather than what a particular defendant understood the statute to mean" (citing United States v. Washam, 312 F.3d 926, 930 (8th Cir. 2002))). Therefore, because a person of ordinary intelligence would understand that the statute proscribes Defendant's alleged conduct in this case, it is not unconstitutionally vague.
For the foregoing reasons, Defendant's motion to dismiss the superseding indictment for failure to state an offense [DE 77] is DENIED.
A TFO for the FBI qualifies as a "public official" under the federal bribery statute. 21 U.S.C. § 878 (addressing the use of local law enforcement by federal agencies); 28 USCS § 566(c) (authorizing the United States Marshals Service to "command all necessary assistance to execute its duties"); 28 C.F.R. § 0.112 (authorizing deputation of local law enforcement by the United States Marshals Service); see West v. City of Mesa, No. CV-12-00657-PHX-DGC, 2015 U.S. Dist. LEXIS 56162 at *8, 2015 WL 1959467 at *3 (D. Ariz. Apr. 29, 2015) ("Courts have consistently treated local law enforcement agents deputized as federal agents and acting as part of a federal task force as federal agents." (quoting Colorado v. Nord, 377 F.Supp.2d 945, 949 (D. Colo. 2005))); Pettiford v. City of Greensboro, 556 F.Supp.2d 512, 534 (M.D.N.C. 2008) (noting the Intergovernmental Personnel Act of 1970, 5 US.C. §§ 3371-76 "sets forth procedures by which local law enforcement officers may be deputized as federal agents `for work of mutual concern to ... [the federal] agency and the State or local government'" (quoting 5 U.S.C. §§ 3372(a)(2))).