U.S. v. McCormack

Page 176

31 F.Supp.2d 176

UNITED STATES of America, v. Kevin McCORMACK, Defendant.

Criminal No. 97-10168-NG.

United States District Court, D. Massachusetts.

November 25, 1998.

Brian T. O'Connor, U.S. Attorney's Office, Boston, MA, for U.S.

Martin Boudreau, North Quincy, MA, John J. McGlone, III, Gianrusso, Norton & McGlone, PC, Quincy, MA, Kevin J. McCormack, Salem, NH, for Kevin J. McCormack.

AMENDED MEMORANDUM AND ORDER

GERTNER, District Judge.

This case raises the question of how far Congress has gone, and, under the Constitution, may go, to federalize crime — here, the crime of bribing a Malden Police Officer to ignore certain state offenses.

Kevin McCormack ("McCormack") has been indicted for giving cash payments of $4,000 to a Malden police officer, Detective David Jordan ("Jordan"), in violation of 18 U.S.C. § 666(a)(2). While the Malden Police department receives federal funds, the alleged bribe had nothing whatever to do with those funds, or indeed, with any cognizable federal program or purpose. To the extent the Government alleges any quid pro quo, it suggests that the money was intended to keep the Malden Police from investigating McCormack for various state offenses.

McCormack now moves to dismiss the indictment on two grounds, one statutory and one constitutional. First, he claims that the conduct alleged in the indictment, and further amplified by the affidavit of an Assistant United States Attorney, is not an offense within the scope of § 666(a). Second, he claims that if the conduct with which he is charged does fit within the scope of § 666(a), then § 666 is unconstitutional as applied since it goes beyond the limits of federal jurisdiction.¹

After due consideration, I agree. I find that the conduct allegedly engaged in by the Defendant does not meet the statutory requirements of § 666(a). Moreover, even if it did, I find the statute is unconstitutional as applied to the facts of this case. Accordingly, I GRANT the Motion To Dismiss.

I. THE FEDERAL STATUTE

The statute under which McCormack has been charged makes it a federal crime, under certain "circumstances" (later defined in § 666(b)), to

corruptly give[ ], offer[ ], or agree[ ] to give anything of value to any person, with intent to influence or reward an agent of an organization or of a State [or] local government ... in connection with any business, transaction, or series of transactions of such organization, government, or agency involving anything of value of $5,000 or more.

18 U.S.C. § 666(a)(2). The circumstances outlined in (b) are that the local government or agency must have received "benefits in excess of $10,000 under a Federal program." 18 U.S.C. § 666(b).

Thus, the statute covers the traditional bases one might find in any bribery statute: 1) the giving of a thing of value; 2) to an agent of defined entities; 3) with a "corrupt" intent. But it goes beyond the traditional to include language apparently limiting its coverage to certain federal offenses: The entity whose agent received the bribe must have received over $10,000 in "benefits.... under a Federal program," and the bribe itself must be given "in connection with any business, transaction, or series of transactions of such organization, government or agency involving anything of value of $5,000 or more."

There is no dispute in this case that the first prong of the limiting language is met: The Malden Police Department, like scores of departments across the country, receives over $10,000 in federal funds. Money is given to the Malden Police Department through a Community Revitalization Grant ($33,500), two Community Policing Grants ($25,000 and $26,409), a D.A.R.E. Grant ($20,000), a Domestic Violence Grant ($114,500), and a Housing Authority Grant ($19,000). The core issue concerns the second: the meaning of the "in connection with" requirement, how the $5,000 value is measured, whether an intangible quid pro quo suffices, and the extent to which the provision obligates the Government to link the bribe in question to certain kinds of federal transactions.

The Government challenges the defendant's substantive position. It would interpret § 666, which is captioned, "Theft or bribery concerning programs receiving Federal funds," not as a statute requiring any specific link to federal funds or federal programs but rather as a general federal anti-corruption statute: Once a local entity meets the $10,000 a year limit — and considerable numbers will² — any and all bribes, about any aspect of the entity's business, so long as they reach a certain level (involving a benefit of over $5,000) may be prosecuted as federal offenses. It does not matter if federal funds were threatened, either directly or indirectly, or if a federal program was implicated in any way. The federal link is essential only to determine which programs and entities fall under federal protection; once there, any significant corruption can be federally prosecuted.

Before I address the Government's arguments, I am obliged to address a threshold question. The Government challenges the authority of this Court to consider these issues at all on a motion to dismiss an indictment. The Court, the Government rightly suggests, has limited authority to consider the appropriateness of an indictment returned by a duly constituted Grand Jury.

I will first outline the facts, as they have been presented by the pleadings, then the threshold question, the Court's authority to consider this Motion To Dismiss at all, and finally, the merits of the defendant's federal jurisdictional claim.

II. FACTS

The following facts derive both from the face of the indictment as well as an affidavit filed by Brien T. O'Connor, an Assistant United States Attorney in the District of Massachusetts.³ They are, for the purposes of this motion, uncontested.

McCormack made four separate cash payments of $1,000 to Jordan between November 1996 and March 1997.

Interactions between McCormack and Jordan date back to 1985. Over the past thirteen years, Jordan has investigated McCormack for various alleged criminal acts, including possible cocaine trafficking. All such investigations were purely state law enforcement enterprises.

McCormack was then charged with attempted murder in Massachusetts Superior Court as a result of a stabbing incident in Malden on July 28, 1996. The victim was sprayed in the face with mace and stabbed four times; he survived and identified McCormack as his attacker. A warrant was issued and Jordan was one of the officers assigned to find him. McCormack was difficult to find, and during a two week search, Jordan actively investigated his whereabouts. He went to bars frequented by McCormack, questioned McCormack's close friends and associates, and searched the home of a woman friend. As Jordan later testified in a voir dire examination in the state court prosecution, at some point during the search for McCormack, a message, ostensibly from McCormack, was delivered to Jordan: "If Jordan is looking for me, tell him I'm smelling the palm trees."

McCormack finally turned himself in on August 13, 1996, and was released on bail on August 16, 1996, from Malden District Court. The terms of his release included an order to stay out of Malden entirely. On September 20, 1996, McCormack was indicted in Superior Court. He was released again on September 30, 1996, with modified bail conditions. Due to the relocation of the alleged victim out of Malden, McCormack was permitted to work in Malden, but he still had to maintain his 11:00 p.m. curfew, and was ordered to stay away from establishments serving alcohol, except when he was working. He had a job described as "cleaning hoods and doing duct work in restaurants."

In the afternoon of October 10, 1996, Jordan saw McCormack sitting in a Malden bar, apparently not working. Based on his understanding of the new release conditions, Jordan notified the Malden District Court and obtained a warrant for McCormack's arrest. McCormack again turned himself in, but no violation of his bail conditions was found (although he was again instructed to stay out of all drinking establishments when he was not working).

Approximately one month later, McCormack made the first of four payments of $1,000 to Jordan, handing Jordan an envelope of cash that he claimed he had found in the street. McCormack gave Jordan $1,000 in cash again in December, January, and March, tossing the cash into Jordan's car or handing it to him hidden in a cup.

On none of these occasions did McCormack ask Jordan for anything in exchange for the money. Although Jordan attempted to ask McCormack about the payments several times, McCormack would not specifically discuss them or their purpose. All that the Government can offer on this score is Jordan's testimony that he "believe[s]" that McCormack was a cocaine dealer and appears to think that the payments were intended to prevent Jordan from "casing" McCormack and observing him dealing cocaine. The O'Connor affidavit reports that McCormack had boasted to another Malden Police Officer, "before the detectives were always watching me, now they just stay away from me ... that's funny ha?"

III. DISCUSSION

A. Issues Cognizable on a Motion to Dismiss

The Government challenges any inquiry into a facially valid warrant, citing United States v. Calandra, 414 U.S. 338, 344-45, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974) ("Thus, an indictment valid on its face is not subject to challenge on the ground that the grand jury acted on the basis of inadequate or incompetent evidence"); United States v. Maceo, 873 F.2d 1, 3 (1st Cir.1989) (finding that a court should not inquire into the sufficiency of the evidence before the indicting grand jury).

As a general matter, the Government is correct. An indictment is sufficient if it (a) contains the elements of the offense charged, (b) fairly informs the defendant of the charges against him, and (c) enables him to plead an acquittal or...