United States v. Collare

UNITED STATES OF AMERICA v. CHRISTOPHER COLLARE.

Crim. No. 1:20-CR-00017

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

May 26, 2020

Judge Jennifer P. Wilson

MEMORANDUM

This is a criminal case in which Defendant Christopher Collare ("Collare") is charged in a twenty-nine count indictment with wire fraud, honest-services mail fraud, federal program bribery, public official bribery, distribution of heroin, and making a false statement for actions he allegedly performed in his role as a police officer with the Carlisle Police Department ("CPD"). Before the court is Collare's motion to dismiss Counts 1-22 of the indictment for failure to state an offense. For the reasons that follow, the motion is granted with respect to Count 21 of the indictment but denied in all other respects.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY¹

On January 16, 2020, a grand jury indicted Collare for sixteen counts of wire fraud under 18 U.S.C. §§ 1343 and 1349 (Counts 1-16); four counts of honestservices mail fraud under 18 U.S.C. §§ 1341, 1346, and 1349 (Counts 17-20); one count of federal program bribery under 18 U.S.C. § 666(a)(1)(B) (Count 21); one count of public official bribery under 18 U.S.C. § 201(b)(2) (Count 22); one count of distribution of heroin under 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846 (Count 23); and six counts of making a false statement under 18 U.S.C. § 1001(a)(2) (Counts 24-29). (Doc. 1.)

According to the facts alleged in the indictment, Collare was an officer with the CPD from 1996 to 2018 and served as a member of the Cumberland County Drug Task Force ("CCDTF") from 2011 to 2018. (Id. ¶¶ 1-2.) During that time, Collare served as a member of the FBI's Capital City Safe Streets Task Force in Harrisburg, Pennsylvania. (Id. ¶ 3.) In performing his work for the CPD and the two task forces, Collare recruited and enlisted confidential informants to assist with drug investigations and supervised the confidential informants' participation in controlled buys of narcotics. (Id. ¶¶ 5-6.)

Counts 1-16 of the indictment allege that Collare "knowingly devised, intended to devise, and participated in a scheme and artifice to defraud the Borough of Carlisle and the CCDTF, and to obtain money and property by means of materially false and fraudulent pretenses, representations, and promises." (Id. ¶ 9.) The indictment alleges that as part of this scheme, Collare recruited confidential informants, materially falsified information on forms associated withcontrolled buys, provided drugs to confidential informants for the purpose of developing sexual relationships with female confidential informants, and allowed confidential informants to retain drugs they obtained through controlled buys for the same purpose. (Id. ¶ 10.) The indictment provides dates on which Collare allegedly recruited certain confidential informants and on which he allegedly falsified documents related to those confidential informants. (See id. ¶¶ 12-26.) The indictment then alleges that in furtherance of his scheme, Collare "caused to be transmitted by means of wire communication in interstate commerce certain writings, signs, signals, pictures, and sounds." (Id. ¶ 27.) Specifically, the indictment alleges that Collare conducted sixteen searches through the Pennsylvania Justice Network ("JNET") to obtain information about confidential informants and about targets of drug investigations. (Id. ¶¶ 11, 27.)

Counts 17-20 of the indictment allege that Collare "knowingly devised, intended to devise, and participated in a scheme and artifice to defraud and deprive the Borough of Carlisle and its citizens of their intangible right to the honest services of Collare through bribery." (Id. ¶ 29.) The indictment alleges that Collare used his official position as an officer with the CPD to obtain sexual favors from two individuals identified as Person #16 and Person #7 by agreeing to take certain actions in criminal prosecutions against the individuals' boyfriends, who are identified as Person #17 and Person #18. (Id. ¶ 30.)

The indictment provides specific factual details that are relevant to the charges in Counts 17-20. According to the indictment, Collare first met Person #16 after she posted an online advertisement seeking money in exchange for sex, at which point Collare picked up Person #16 in his car and she had sexual intercourse with him in exchange for money. (Id. ¶ 31.) Collare subsequently provided money and heroin to Person #16 in exchange for sexual intercourse on multiple occasions between December 2011 and August 2014. (Id. ¶ 32.)

In August 2014, Collare and other officers searched the home of Person #17, who was Person #16's boyfriend during the time relevant to the indictment, and seized controlled substances, including heroin. (Id. ¶ 34.) Collare arrested Person #17, and Person #17 was then charged with one count of the manufacture, delivery, or possession with intent to manufacture or deliver a controlled substance in the Court of Common Pleas of Cumberland County. (Id. ¶¶ 34-35.) The maximum fine for such a charge under Pennsylvania law was $250,000. (Id. ¶¶ 35.) While Person #17's charge was pending, Person #16 offered Collare sexual intercourse or money in exchange for Collare's promise to not appear as a witness in Person #17's then-upcoming suppression hearing so that the charge against Person #17 would be dismissed. (Id. ¶ 36.) Collare accepted the offer and had sexual intercourse with Person #16. (Id.) Person #16 then asked Collare to confirm their agreement in August 2015 and Collare confirmed that in exchange for sexualintercourse, he would not appear for Person #17's suppression hearing, at which point the individuals had sexual intercourse. (Id. ¶ 37.) Person #17's suppression hearing subsequently occurred, after which the judge presiding over Person #17's criminal case issued an order suppressing the evidence that was seized from Person #17's home. (Id. ¶ 38.) The charge against Person #17 was then dismissed on the same day. (Id. ¶ 39.)

Collare's alleged actions with respect to the other pair of individuals—Person #7 and Person #18—began on December 2, 2017, when Collare arrested Person #18. (Id. ¶ 41.) As a result of the arrest, Person #18 was charged with delivering narcotics and unlawful gun possession. (Id.)

Collare enlisted Person #7, who was Person #18's girlfriend at all relevant times, as a confidential informant in January 2018. (Id. ¶ 43.) In March 2018, Collare told Person #7 that if she "helped" Collare, he would take steps to reduce Person #18's potential sentence. (Id. ¶ 44.) Collare then "undid his pants, exposed his penis, and placed Person #7's hand on his penis." (Id. ¶ 45.) At this point, Person #7 asked Collare about Person #18's potential sentence and Collare told her that Person #18 would receive a sentence of time served and be allowed to return home. (Id.) Person #7 then performed oral sex on Collare. (Id.) Person #18 subsequently pleaded guilty to one count of unlawful delivery of narcotics and wassentenced to twenty-four months in the state intermediate punishment program. (Id. ¶ 46.)

Counts 17-20 allege that in furtherance of his scheme to deprive the Borough of Carlisle of his honest services, Collare "knowingly caused to be deposited in a post office and authorized depository for mail to be delivered by the Postal Service" four court documents in violation of 18 U.S.C. §§ 1341, 1346, and 1349. (Id. ¶ 47.)

Count 21 alleges that Collare accepted a bribe in violation of 18 U.S.C. § 666(a)(1)(B) by accepting sex and sexual favors while "intending to be influenced and rewarded in connection with a business, transaction, and series of transactions of the Borough of Carlisle and Cumberland County, Pennsylvania valued at $5,000 or more." (Id. ¶ 48.) Count 22 similarly alleges that Collare accepted a bribe in violation of 18 U.S.C. § 201(b)(2) by accepting sex and sexual favors in exchange for "being influenced in the performance of an official act, and being induced to do and omit to do any act in violation of his duties." (Id. ¶ 49.)

Collare moved to dismiss Counts 1-22 of the indictment on April 20, 2020. (Docs. 24-25.) The government filed a brief in opposition to the motion to dismiss on May 7, 2020. (Doc. 30.) Collare then filed a notice of supplemental authority under Local Rule 7.36 on May 8, 2020, advising the court of the Supreme Court's decision in Kelly v. United States, 590 U.S. ___, 140 S. Ct. 1565 (2020). (Doc. 31.)The government filed a response to the notice of supplemental authority on May 15, 2020, and Collare then filed a reply to the government's response on May 22, 2020. (Docs. 34, 37.) Collare's motion to dismiss is now ripe for the court's disposition.

JURISDICTION

This court has jurisdiction under 18 U.S.C. § 3231, which gives district courts original jurisdiction over cases in which offenses against the laws of the United States are alleged.

STANDARD OF REVIEW

Under Federal Rule of Criminal Procedure 12(b)(3)(B), a defendant may move to dismiss an indictment for duplicity, multiplicity, lack of specificity, improper joinder, or failure to state an offense. Fed. R. Crim. P. 12(b)(3)(B). To state an offense, an indictment must provide "a plain, concise, and definite written statement of the essential facts constituting the offense charged." Fed. R. Crim. P. 7(c)(1). The indictment also must provide "the official or customary citation of the statute, rule, regulation, or other provision of law that the defendant is alleged to have violated." Id.

An indictment is sufficient to survive a motion to dismiss for failure to state an offense if it "(1) contains the elements of the offense intended to be charged, (2) sufficiently apprises the defendant of what he must be prepared to meet, and (3)allows the defendant to show with accuracy to what extent he may plead a former acquittal or conviction in the event of a subsequent prosecution." United States v. Fattah, 858 F.3d 801, 814 (3d...