SAUNDRA BROWN ARMSTRONG
ORDER DENYING
MOTION TO DISMISS
Docket 39
The parties are presently before the Court on Defendant Stephen
Tanabe's ("Defendant") motion to dismiss the superseding indictment
under Rule 12(b) of the Federal Rules of Criminal Procedure. Dkt. 39.
The United States ("government") opposes the motion. Dkt. 40. Having
read and considered the papers filed in connection with this matter
and being fully informed, the Court hereby DENIES the motion to
dismiss, for the reasons stated below.
I. BACKGROUND
A. Factual Background
At all times relevant to the superseding indictment, Defendant was a
Deputy Sheriff with the Contra Costa County Sheriff's Office, assigned
to work patrol in Danville, California. Superseding Indictment ¶ 1.
Beginning on a date unknown, but no later than November 2, 2010, and
continuing through at least on or about January 14, 2011, Defendant
and others engaged in an illegal scheme and conspiracy to defraud
others by depriving them of their rights to Defendant's honest
services as a Deputy Sheriff. Id. ¶ 2.
Beginning on a date no later than November 2, 2010, a private
investigator, C.B., agreed to conduct "stings" of husbands and
ex-husbands (hereafter "targets") for female clients
involved in divorce, child custody, and other family law disputes.
Superseding Indictment ¶ 3. In cases in which the clients advised C.B.
that the targets had a tendency to drink and drive, C.B. would arrange
for an undercover employee to meet the target at a bar, direct the
employee to entice the target to drink alcohol until he was
intoxicated, and have a police officer waiting outside the bar to stop
and arrest the target for driving under the influence of alcohol
("DUI"). Id.
As part of this scheme, Defendant agreed to and did participate in
three DUI stings. Superseding Indictment ¶ 4. In two stings, Defendant
waited outside the bar for the targets, H.A. and M.K., to exit and
then stopped the targets shortly after they drove
off. Id. In the third sting, Defendant arranged for
another Deputy Sheriff to wait outside the bar, while he remained
inside the bar with C.B., monitoring the alcohol intake of the target,
D.B. Id. In all cases, the targets were stopped and
arrested for DUI. Id. In his incident reports for the
arrests he made, Defendant falsely stated that he was on "routine
patrol" at the time of the targets' arrests. Id.
In exchange for Defendant making DUI arrests and arranging for another
officer to make an arrest, C.B. compensated Defendant with cocaine and
a firearm. Superseding Indictment ¶ 5. As part of the scheme,
Defendant and C.B. exchanged text messages regarding coordination of
the arrests and Defendant's compensation for his role in the
arrests. Id. ¶ 6. The texts to and from C.B. passed
through the servers of C.B.'s cell service provider, Sprint, located
in Kansas City, Missouri. Id.
B. Procedural History
On December 15, 2011, a grand jury returned a four-count indictment
charging Defendant with one count of conspiracy to extort under color
of official right in violation of 18 U.S.C. § 1951; one count of extortion under color of official right, aiding and
abetting in violation of 18 U.S.C. §§ 1951 and 2; and two counts of extortion under color of official
right in violation of 18 U.S.C. § 1951. Indictment, Dkt. 1. On April 25, 2012, a grand jury returned an
eight-count superseding indictment charging Defendant with one count
of conspiracy to commit wire fraud and deprivation of honest services
in violation of 18 U.S.C. § 1349; three counts of wire fraud and deprivation of honest services in
violation of 18 U.S.C. §§ 1343 and 1346; one count of conspiracy to extort under color of
official right in violation of 18 U.S.C. § 1951; one count of extortion under color of official right, aiding and
abetting in violation of 18 U.S.C. §§ 1951 and 2; and two counts of extortion under color of official
right in violation of 18 U.S.C. § 1951. Superseding Indictment, Dkt. 24.
On July 16, 2012, Defendant filed a motion to dismiss the superseding
indictment. Dkt. 39. The government filed an opposition on July 31,
2012. Dkt. 40. Defendant did not file a reply brief.
II. DISCUSSION
A. Legal Standard
An indictment "must be a plain, concise and definite written statement
of the essential facts constituting the offense charged. . .
." Fed.R.Crim.P. 7(c)(1). A defendant may move to dismiss the indictment for failure to state
an offense under Federal Rule of Criminal Procedure 12(b). "In ruling on a pre-trial motion to dismiss an indictment for
failure to state an offense, the district court is bound by the four
corners of the indictment." United States v. Boren, 278 F.3d 911, 914 (9th Cir. 2002) (citations omitted). "On [such] a motion . . .
, the court must accept the truth of the allegations in the indictment
in analyzing whether a cognizable offense has been
charged." Id. (citation omitted).
"An indictment must provide the essential facts necessary to apprise a
defendant of the crime charged; it need not specify the theories or
evidence upon which the government will rely to prove those
facts." United States v. Cochrane, 985 F.2d 1027, 1031 (9th Cir. 1993) (citing United States v. Jenkins, 884 F.2d 433, 438-439 (9th Cir. 1989)). An indictment is sufficient to withstand a
motion to dismiss if it (1) "contains the elements of the offense
charged and fairly informs a defendant of the charge against which he
must defend" and (2) "enables him to plead an acquittal or conviction
in bar of future prosecutions for the same offense." United States v. Lazarenko, 564 F.3d 1026, 1033 (9th Cir. 2009) (quotation marks omitted). An indictment should
be read in its entirety, construed according to common
sense, and interpreted to include facts which are necessarily
implied. Id. "In cases where the indictment 'tracks
the words of the statute charging the offense,' the indictment will be
held sufficient 'so long as the words unambiguously set forth all
elements necessary to constitute the offense.' " United States v. Davis, 336 F.3d 920, 922 (9th Cir. 2003).
B. Motion to Dismiss
Defendant moves to dismiss Counts 1-8 of the superseding indictment on
the ground that the government has failed to allege essential elements
of the charges alleged. Def.'s Mtn. at 3. Defendant's arguments
are discussed in turn below.
In its opposition papers, the government represents that it "intends
to amend the indictment to omit Count Five, conspiracy to extort
under color of official right, for the reasons stated by this Court
during the plea colloquy for co-conspirator Christopher Butler. The
government will do so after the Court rules on this motion." Pl.'s
Opp. at 10.
1. Honest Services Wire Fraud
Counts 1-4 of the superseding indictment charge Defendant with one
count of conspiracy to commit honest services wire fraud and three
counts of honest services wire fraud in violation of 18 U.S.C. §§
1359, 1343 and 1346. See Superseding Indictment ¶¶
7-10. The wire fraud statute provides:
Whoever, having devised or intending to devise any scheme or artifice
to defraud, or for obtaining money or property by means of false or
fraudulent pretenses, representations, or promises, transmits or
causes to be transmitted by means of wire, radio, or television
communication in interstate or foreign commerce, any writings, signs,
signals, pictures, or sounds for the purpose of executing such scheme
or artifice, shall be fined under this title or imprisoned not more
than 20 years, or both. . . .
18 U.S.C. § 1343. "To convict a person of wire fraud, the government must prove beyond
a reasonable doubt that the accused (1) participated in a scheme to
defraud; and (2) used the wires to further the scheme." United States v. Ciccone, 219 F.3d 1078, 1083 (9th Cir. 2000) (citation omitted).
As explained by the Ninth Circuit, federal prosecutors have used §
1343, as well as the substantially similar mail fraud statute, 18 U.S.C. § 1341, to develop a theory of "honest services fraud," which occurs when
an employee deprives his employer of its right to have its
affairs conducted "free from deceit, fraud, dishonesty, conflict of
interest, and self-enrichment," and consistent with the employee's
fiduciary duties to the employer. United States v. Kincaid-Chauncey, 556 F.3d 923, 939 (9th Cir. 2009). When a public official is involved, the theory
relies on the idea that a public official acts as trustee for the
citizens and the State and thus owes the normal fiduciary duties of a
trustee, e.g., honesty and loyalty to them. Id.; see United States v. Woodard, 459 F.3d 1078, 1082, 1086 (11th Cir. 2006) (a police officer is a public official that
owes a "fiduciary duty to the public to make governmental decisions in
the public's best interest"; noting that a police officer's misuse of
his office for private gain constitutes fraud).
18 U.S.C. § 1346 provides that the behavior punishable under the wire fraud
statute includes a scheme or artifice "to deprive another of the
intangible right of honest services." The Supreme Court has recently
held that § 1346, which codifies the offense of honest-services fraud,
only criminalizes bribe-and-kickback schemes. See United States v. Pelisamen, 641 F.3d 399, 402, 404-405 (9th Cir. 2011) ("a defendant may not be convicted of
honest-services fraud, except in cases involving bribes or kickbacks";
noting that the "Supreme Court has recently held that the offense of
honest-services fraud . . . is unconstitutionally vague when applied
to conduct other than bribery and kickbacks") (citing Skilling v. United States, 130 S.Ct. 2896, 2931 (2010)).
In Skilling, the Supreme Court did not define bribery or
kickbacks. However, the Supreme Court cited a statutory definition
of kickbacks. Skilling, 130 S. Ct. at 2933-2934 (" 'The term 'kickback' means any money, fee, commission,
credit, gift, gratuity, thing of value, or compensation of any kind
which is provided, directly or indirectly, to [enumerated persons]
for the purpose of improperly obtaining or rewarding favorable
treatment in connection with [enumerated circumstances].' ")
(quoting 41 U.S.C. 52(2)).
While the term "honest services" is not defined in the statute, "the
paradigm case of honest services fraud is the bribery of a public
official." See United States v. Langford, 647 F.3d 1309, 1321 (11th Cir. 2011); see also United States v. Bohonus, 628 F.2d 1167, 1171 (9th Cir. 1980) (schemes which deprive others of intangible
rights most often involve bribery of public officials). In cases
involving bribery of public officials, "[t]he requisite 'scheme or
artifice to defraud' is found in the deprivation of the public's right
to honest and faithful government. When a public official
is bribed, he is paid for making a decision while purporting to be
exercising his independent discretion. The fraud element is therefore
satisfied." Bohonus, 628 F.2d at 1171.
In the Ninth Circuit, bribery requires at least an implicit quid pro quo. Kincaid-Chauncey, 556 F.3d at 941. "Only individuals who can be shown to have had the specific intent
to trade official actions for items of value are subject to criminal
punishment on this theory of honest services
fraud." Id. at 943, n. 15. The quid pro quo necessary for a bribery honest services conviction need not be
explicit, and an implicit quid pro quo need not
concern a specific official act. Id. at 943
(citing United States v. Kemp, 500 F.3d 257, 282 (3d Cir. 2007) ("[T]he government need not prove that each gift
was provided with the intent to prompt a specific official act.")).
A quid pro quo requirement is satisfied if the
evidence shows a course of conduct of favors and gifts flowing to a
public official in exchange for a pattern of official acts favorable
to the donor. Id. at 943.
Relying on Skilling, the Ninth Circuit has recently held
that the breach of a fiduciary duty is a required element of honest
services fraud. United States v. Milovanovic, 678 F.3d 713, 721-722, 728-729 (9th Cir. 2012) (noting that
in Skilling the Supreme Court stated that "[t]he
'vast majority' of the honest-services cases involved offenders
who, in violation of a fiduciary duty, participated
in bribery or kickback schemes."). The fiduciary duty required is
not limited to the classic definition of the term but also extends to
defendants who assume a comparable duty of loyalty, trust, or
confidence with the victim. Id. at 723-724. "The
existence of a fiduciary duty in a criminal prosecution is a
fact-based determination that must ultimately be determined
by a jury properly instructed on this issue." Id. at
723.
In Milovanovic, the Defendant was not charged with
honest services wire fraud in violation of § 1343; rather, he was
charged with the substantially similar mail fraud statute, §
1341. See Milovanovic, 678 F.3d at 719, n. 4.
"A fiduciary is generally defined as '[a] person who is required to
act for the benefit of another person on all matters within the
scope of their relationship; one who owes to another the duties of
good faith, trust, confidence, and candor. . . .'
" Milovanovic, 678 F.3d at 722 (quoting Black's Law Dictionary (9th ed.)). And courts have
held that "fiduciary" encompasses informal fiduciaries. See id.
A specific intent to defraud is also a required element of honest
services fraud. Kincaid-Chauncey, 556 F.3d at 941. As with mail fraud, "materiality" is also an essential element of
the crime of wire fraud. Neder v. United States, 527 U.S. 1, 20-25 (1999); Milovanovic, 678 F.3d at 726-727 (adopting the "materiality test" to bring § 1346 in line with the mail, wire, and bank fraud statutes). In the
case of mail or wire fraud, the government need not prove a specific
false statement was made. See United States v. Woods, 335 F.3d 993, 999 (9th Cir. 2003) (if a scheme is devised with the intent to
defraud, the fact that there is no misrepresentation of a single
existing fact is immaterial; it is only necessary to prove that it is
a scheme reasonably calculated to deceive); United States v. Omer, 395 F.3d 1087, 1089 (9th Cir. 2005) (it is the materiality of the scheme or
artifice that must be alleged; the materiality of a specific statement
need not be pleaded). "[T]he fraudulent nature of the 'scheme or
artifice to defraud' is measured by a non-technical
standard." Woods, 335 F.3d at 998. "Thus, schemes are
condemned which are contrary to public policy or which fail to measure
up to the reflection of moral uprightness, of fundamental honesty,
fair play and right dealing in the general and business life of
members of society." Id.; see also Omer, 395 F.3d at 1089 (noting that "Neder did not undermine this
non-technical standard for measuring fraud, which does not require
proof of a specific false statement.").
Here, the superseding indictment charges Defendant with a
bribery-based scheme to defraud. Defendant contends that dismissal of
the honest services fraud counts (i.e., Counts 1-4) is appropriate
because "the government has failed to allege any facts pertaining to
the breach of a fiduciary duty, the material misrepresentation or
material fact concealed by [Defendant], and the quid pro quo agreement by [Defendant] that caused the deprivation o[f] an
intangible right of a particular service." Def.'s Mtn. at 4 (italics
and alterations added). The Court disagrees.
The Court finds that the superseding indictment sufficiently alleges
these elements of an honest services fraud offense. Reading the
superseding indictment in its entirety, construing it according to
common sense, and interpreting it to include facts which are
necessarily implied, the government has alleged that: (1) Defendant
knowingly and intentionally devised and participated in a scheme and
artifice to defraud, specifically to deprive the public to whom he
owed a fiduciary duty of his honest services as a Deputy Sheriff; (2)
the fraudulent scheme involves bribes (i.e., cocaine and a firearm) in
exchange for Defendant's services (i.e., making arrests and arranging
for another officer to make an arrest); (3) the public was deprived of
the intangible benefit of Defendant's honest services through the
bribery-based scheme as Defendant misused his position for private
gain; and (4) Defendant used the wires (via text messages) to execute
the fraudulent scheme.
Defendant argues that Counts 1-4 of the superseding indictment should
be dismissed because the superseding indictment does not allege a
fiduciary duty or a breach of a fiduciary duty. Def.'s Mtn. at 5.
While the superseding indictment does not contain the phrase
"fiduciary duty," the superseding indictment fairly read alleges that
Defendant, a public official, owed a fiduciary duty to the public
to provide honest services, and that he breached his duties of honesty
and loyalty to the public through his participation in the
bribery-based fraudulent scheme. To the extent Defendant argues that
the superseding indictment does not allege a breach of fiduciary duty
because Defendant's duties under the law required him to prevent crime
and assist in its detection, id., this argument lacks
merit. Honest services fraud criminalizes bribery schemes where, as
here, a public official receives compensation of any kind in exchange
for the performance of official duties favorable to the person
providing the compensation. See e.g., Langford, 647 F.3d at 1321-1322.
Defendant does not dispute that he was a public official at the time
of the events giving rise to this action. See Woodard, 459 F.3d at 1096, n. 7 (police officer is a public official that owes the public a
fiduciary duty to act in the public's best interest).
--------
Defendant also argues that Counts 1-4 of the superseding indictment
should be dismissed because the superseding indictment does not allege
a material misrepresentation or the omission of a material fact as
required under §§ 1343 and 1346. Def.'s Mtn. at 6. Defendant contends
that "[s]ince making an investigatory stop of an intoxicated driver
based upon a citizen's tip is not a material misrepresentation, the
Court should dismiss the Honest Services counts. . .
." Id. at 6 (alteration added). The Court rejects
this argument.
Contrary to Defendant's contention, the government is not required to
allege a material misrepresentation or the omission of a material fact
to state an actionable charge for honest services wire fraud. See Woods, 335 F.3d at 998-999. The materiality element of a wire
fraud offense does not require the government to prove a specific
false statement or specific omission. See id. If a scheme is devised with the intent to defraud, .
. . the fact that there is no misrepresentation of a single existing
fact is immaterial. It is only necessary to prove that it is a scheme reasonably
calculated to deceive . . . ." Id. at 998 (emphasis
in original). A review of the superseding indictment reveals that the
government has sufficiently alleged the materiality element of an
honest services wire fraud offense. The superseding indictment fairly
read alleges that Defendant participated in a "scheme reasonably
calculated to deceive," which deprived the public of its right to
Defendant's honest services. Moreover, even assuming for the sake of
argument that the government is required to allege a material
misrepresentation or the omission of a material fact, the superseding
indictment alleges that the Defendant made specific false statements
in furtherance of the fraudulent scheme. Specifically, it alleges that
Defendant falsely stated in his incident reports for the DUI arrests
that he was on "routine patrol." These statements are material
misrepresentations because Defendant falsely represented to his
employer that he was engaged in official acts on behalf of the public
when in fact he was misusing his position for private gain.
Finally, Defendant argues that Counts 1-4 of the superseding
indictment should be dismissed because the superseding indictment does
not allege an explicit agreement that Defendant received benefits in
exchange for a promise of official action. Def.'s Mtn. at
8. Defendant contends that "[s]ince the superceding [sic]
indictment lacks . . . an explicit, certain quid pro quo agreement, the Honest Services Fraud counts are insufficient to state
a claim upon which [Defendant] can be
charged." Id. at 8 (italics and alterations added).
This argument lacks merit. The quid pro quo necessary for a bribery honest services conviction need not be
explicit. Kincaid-Chauncey, 556 F.3d at 943. A quid pro quo requirement is satisfied if the
evidence shows a course of conduct of favors and gifts flowing to a
public official in exchange for a pattern of official acts favorable
to the donor. Id. Here, the allegations in the
superseding indictment are sufficient to withstand Defendant's motion
to dismiss. The superseding indictment alleges that "[i]n exchange for
[Defendant] making DUI arrests and arranging for another officer to
make an arrest, C.B. compensated [Defendant] with cocaine and a
firearm." Superseding Indictment ¶ 5.
2. Hobbs Act
Counts 5-8 of the superseding indictment charge Defendant with
violations of the Hobbs Act. Specifically, the superseding indictment
charges Defendant with one count of conspiracy to extort under color
of official right in violation of 18 U.S.C. § 1951; one count of extortion under color of official right, aiding and
abetting in violation of 18 U.S.C. §§ 1951 and 2; and two counts of extortion under color of official
right in violation of 18 U.S.C. § 1951. See Superseding Indictment ¶¶ 11-18.
18 U.S.C. § 1951 provides:
Whoever in any way or degree obstructs, delays, or affects commerce or
the movement of any article or commodity in commerce, by robbery or
extortion or attempts or conspires so to do, or commits or threatens
physical violence to any person or property in furtherance of a plan
or purpose to do anything in violation of this section shall be fined
under this title or imprisoned not more than twenty years, or both.
"The term 'extortion' means the obtaining of property from another, with
his consent, induced by wrongful use of actual or threatened force,
violence, or fear, or under color of official right." 18 U.S.C. § 1951(b)(2).
To convict Defendant of Hobbs Act extortion under a color of official
right theory, the government must prove that he: (1) was a government
official; (2) who accepted property to which he was not
entitled; (3) knowing that he was not entitled to the property; (4)
knowing that the payment was given in return for official acts; and
(5) which had at least a de minimis effect on
commerce. Kincaid-Chauncey, 556 F.3d at 936. A conviction for extortion under color of official right requires
that the government prove a quid pro quo. Id. at 937. The official and the payor need not state
the quid pro quo in express terms, for otherwise
the law's effect could be frustrated by knowing winks and
nods. Id. (quotation marks omitted). An
explicit quid pro quo is not required; an agreement
implied from the official's words and actions is sufficient to satisfy
this element. Id. (citing Evans v. United States, 504 U.S. 255, 268 (1992) ("[The] Government need only show that a public official
has obtained a payment to which he was not entitled, knowing that the
payment was made in return for official acts.")).
Here, Defendant is charged under the "official right" theory of
extortion. Defendant contends that dismissal of the Hobbs Act charges
is appropriate because "the government failed to allege an obtaining
of property of another, the effect [sic] on interstate commerce, or
a quid pro quo[,] which are each essential elements
of a Hobbs Act violation. Def.'s Mtn. at 8 (italics and alteration
added). The Court disagrees.
The Court finds that the superseding indictment sufficiently alleges
these elements of a Hobbs Act extortion offense. Reading the
superseding indictment in its entirety, construing it according to
common sense, and interpreting it to include facts which are
necessarily implied, the superseding indictment alleges that
Defendant, a Deputy Sheriff, did knowingly and intentionally obstruct,
delay, and affect commerce by extortion (or aided and abetted or
conspired to do the same) by obtaining property not due to him from
C.B. (i.e., cocaine and a firearm), with C.B.'s consent, in exchange
for making and arranging traffic stops and arrests for DUI under color
of official right.
Defendant argues that Counts 5-8 of the superseding indictment should
be dismissed because the allegation that he obtained cocaine and a
firearm from C.B. after the DUI arrests, standing alone, cannot
establish a Hobbs Act extortion violation. Def.'s Mtn. at 9-10.
Defendant, however, did not cite any authority demonstrating that
dismissal is appropriate on this ground. Indeed, with
respect to obtaining property, to survive a motion to dismiss the
government must allege that Defendant accepted property to which he
was not entitled, and that he knew he was not entitled to receive the
property. See Kincaid-Chauncey, 556 F.3d at 936. The superseding indictment fairly read alleges sufficient facts to
satisfy this element of a Hobbs Act extortion offense. The superseding
indictment alleges that Defendant knowingly and intentionally obtained
property not due to him from C.B. (i.e., cocaine and a firearm), with
C.B.'s consent, in exchange for making and arranging traffic stops and
arrests for DUI under color of official right.
Defendant also argues that Counts 5-8 of the superseding indictment
should be dismissed because "[w]hile the government only needs to
prove 'a de minimis effect on interstate commerce,'
" there are no allegations in the superseding indictment establishing
that Defendant obstructed, delayed, or affected interstate commerce.
Def.'s Mtn. at 10 (alteration and italics added). Defendant, however,
does not point to any controlling authority establishing that the
allegations in the superseding indictment are insufficient to survive
a motion to dismiss on this ground. Moreover, because the superseding
indictment tracks the statutory language by alleging that Defendant's
extortion affected interstate commerce, the government has adequately
pled this element of a Hobbs Act extortion
offense. Davis, 336 F.3d at 922.
Finally, Defendant argues that Counts 5-8 of the superseding
indictment should be dismissed because the government failed to allege
an explicit quid pro quo agreement between
Defendant and C.B. Def.'s Mtn. at 11. Contrary to Defendant's
contention, an explicit quid pro quo is not
required; an agreement implied from the official's words and actions
is sufficient to satisfy this element. See Kincaid-Chauncey, 556 F.3d at 937 (citing Evans, 504 U.S. at 268 ("[The] Government need only show that a public official has
obtained a payment to which he was not entitled, knowing that the
payment was made in return for official acts.")). Here, the
allegations in the superseding indictment fairly read sufficiently
allege this element of a Hobbs Act extortion offense. The superseding
indictment alleges that Defendant received compensation (i.e., cocaine
and a firearm) not due to him from C.B. in exchange for
making DUI arrests and arranging for another officer to make an
arrest.
III. CONCLUSION
For the reasons stated above, IT IS HEREBY ORDERED THAT:
1. Defendant's motion to dismiss is DENIED.
2. The motion hearing scheduled for November 20, 2012 is VACATED. The
parties shall contact the Duty Magistrate Judge of the Oakland
Division of this Court forthwith to schedule the matter for a status
conference.
3. This Order terminates Docket 39.
IT IS SO ORDERED.
_____________
SAUNDRA BROWN ARMSTRONG
United States District Judge
