United States v. Gordon

UNITED STATES OF AMERICA, v. ELVIS GORDON and IVAN PONDER, Defendants.

CRIMINAL CASE NO. 1:17-CR-00354-MHC-LTW

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

May 15, 2018

MAGISTRATE JUDGE'S ORDER, REPORT AND RECOMMENDATION AND ORDER CERTIFYING THIS CASE READY FOR TRIAL

Pending before this Court are three motions brought by Defendants Elvis Gordon and Ivan Ponder ("Defendants"). (Docs. 34-36). For the reasons outlined below, this Court concludes as follows:

(1) Defendants' Motion to Dismiss Counts for Failure to Allege an "Official Act" Within the Meaning of the Bribery Statute should be DENIED. (Doc. 34).

(2) Defendants' Motion to Dismiss Counts for Failure to Allege an Offense should be DENIED. (Doc. 35).

(3) Defendants' Motion for a Bill of Particulars should be GRANTED IN PART and DENIED IN PART. (Doc. 36).

I. BACKGROUND

On October 17, 2017, a grand jury in the Northern District of Georgia returned an Indictment against Defendants charging them with conspiring to commit bribery, in violation of 18 U.S.C. § 371. Defendant Ponder was also charged with ten counts of corruptly paying bribes, in violation of 18 U.S.C. § 201(b)(1). Defendant Gordon was charged with: (1) ten counts of corruptly accepting bribes, in violation of 18 U.S.C. § 201(b)(2); (2) one count of participating in a matter in which he had a conflict of interest, in violation of 18 U.S.C. § 208; and (3) one count of submitting a false claim for payment, in violation of 18 U.S.C. § 287.

A. The Indictment

Count I of the Indictment details the alleged conspiracy between Defendants. The Indictment alleges that Defendant Gordon worked for the United States Food and Drug Administration ("FDA") and was "responsible for scheduling and overseeing certain building maintenance" for the FDA's Atlanta facility (the "facility"), "including identifying and selecting vendors to perform certain maintenance and janitorial work" for the facility. (Doc. 1 ¶ ¶ 1-2). In this role, Defendant Gordon allegedly "selected and influenced the selection of vendors who performed the work required; reviewed proposals for accuracy and economic impact to the FDA; validated performance, and certified completion for payment." (Doc. 1 ¶ 2). Until August 2015, Defendant Gordon was "authorized to hire vendors directly" for certain maintenance projects below a threshold dollar amount, called "micro-purchases," without going through the federal procurement process. (Id. at ¶ 3). Additionally, other FDA personnel allegedly relied on Gordon to provide "sound information and advice on which vendors to utilize" for these projects. (Id.). According to the Indictment, Defendant Gordon used his position to obtain personal benefits in exchange for selecting certain vendors to perform work at the facility. (Doc. 1 ¶ 4).

P&E Management, LLC ("P&E) was allegedly a Georgia corporation formed around October 2010 that supplied building maintenance and janitorial services. (Doc. 1 ¶ 5). According to the Indictment, Defendant Ponder was a manager and owner of P&E, and had the primary responsibility for "managing P&E's work at the FDA Office and P&E's financial affairs, including its bank accounts." (Id. at ¶ 6). The Indictment alleges that between November 2010 and February 2016, Defendant Gordon "selected and influenced the selection of" P&E to perform building maintenance projects at the facility, using his micro-purchase authority to pay Defendant Ponder and by directing other FDA employees to use their micro-purchase authority to pay Defendant Ponder. (Id. at ¶ 7). The Indictment also alleges that in exchange for Defendant Gordon using his position and influence to ensure P&E was selected to perform work at the facility, Defendant Ponder paid Defendant Gordon directly by issuing or causing to be issued checks payable to him and O.C., Defendant's romantic partner, for his personal benefit. (Id. at ¶ 8). The Indictment also alleges Defendant Ponder acting with and through P&E, gave Defendant Gordon indirect payments by (1) making monthly payments for at least four years for a vehicle purchased for O.C., which was insured by Defendant Gordon; (2) giving Defendant Gordon a debit card linked to a business checking account, which Defendant Gordon used to pay for personal purchases at gasoline stations, restaurants, other business establishments, and to fund his personal travel; and (3) allowing Defendant Gordon to use his P&E debit card to pay for work-related travel expenses, for which he then claimed reimbursement from FDA for himself. (Id. at ¶ 9). Defendant Gordon allegedly accepted all of Defendant Ponder's direct and indirect payments. (Id. at ¶ 11).

Counts II-XI charge Defendant Gordon with bribery and allege Defendant Gordon, a public official, "directly and indirectly, did corruptly demand, seek, receive, accept, and agree to receive and accept" eleven separate payments, all drawn on P&E business account, in return for "being influenced in the performance of an official act, that is promoting, selecting, contracting with, and making recommendations and requests for work to be performed at the facility by Defendant and P&E. (Doc. 1 at ¶ 12). Counts XII-XXI charge Defendant Ponder with bribery and allege Defendant Ponder, through eleven separate payments, "directly and indirectly, did corruptly give, offer, and promise a thing of value," with the intent to influence Defendant Gordon to perform an official act. (Doc. 1 at ¶ 14).

On February 5, 2018, Defendants filed a Motion to Dismiss Counts for Failure to Allege An "Official Act" Within the Meaning of the Bribery Statutes, and a Motion to Dismiss Counts for Failure to Allege an Offense. (Docs. 34-35). On February 5, 2018, Defendants also filed a Motion for a Bill of Particulars. (Doc. 36). On February 22, 2018, the Government responded to Defendants' Motions. (Docs. 38-39).

DEFENDANTS' MOTION TO DISMISS COUNTS FOR FAILURE TO

ALLEGE AN "OFFICIAL ACT" WITHIN THE MEANING OF THE

BRIBERY STATUTE

In Defendants' Motion to Dismiss Counts For Failure to Allege an "Official Act" Within the Meaning of the Bribery Statute, Defendants argue Counts I-XXI (conspiracy to commit bribery and bribery charges) should be dismissed because they fail to allege an "official act" as defined by the bribery statute. (Doc. 34). According to Defendants, the acts alleged in the indictment (e.g. "promoting, selecting, contracting with, and making recommendations and requests for work to be performed") are not official acts. (Id.). Defendants also contend that the acts alleged in the Indictment are "broad categories" and do not identify the specific official acts Defendant Gordon performed in return for alleged payments. Defendants further argue Defendant Gordon did not have the authority to commit the official acts alleged in the Indictment. (Id.). According to Defendants, since the Indictment fails to allege an official act taken by Defendant Ponder, Counts I-XXI fail to allege an offense under 18 U.S.C. § 201. (Id.). In response, the Government contends Counts I-XXI sufficiently allege facts that, if proven true, would support convictions for bribery.

Federal Rule of Criminal Procedure 12(b)(3)(B) allows a defendant to file a motion, alleging a defect in the indictment or information. Fed. R. Crim. P. 12(b)(3)(B). "An indictment is considered legally sufficient if it: (1) presents the essential elements of the charged offense, (2) notifies the accused of the charges to be defended against, and (3) enables the accused to rely upon a judgment under the indictment as a bar against double jeopardy for any subsequent prosecution for the same offense." United States v. Schmitz, 634 F.3d 1247, 1259 (11th Cir. 2011). The sufficiency of a criminal indictment is determined from its face. United States v. Salman, 378 F.3d 1266, 1268 (11th Cir. 2004) (quoting United States v. Critzer, 951 F.2d 306, 307 (11th Cir. 1992)). "It is generally sufficient that an indictment set forth the offense in the words of the statute itself, as long as those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished." United States v. Garrett, 467 F. App'x 864, 867 (11th Cir. 2012), citing Hamling v. United States, 418 U.S. 87, 117 (1974); see also Critzer, 951 F.2d at 307-08. In determining whether the indictment satisfies this standard, the court must accept all allegations contained therein as true. See United States v. Sharpe, 438 F.3d 1257, 1258-59 (11th Cir. 2006).

18 U.S.C. § 201(b)(1) and (2) define the crime of bribery, which consists of two separate crimes, one for giving ((b)(1)), and one for receiving ((b)(2)). 18 U.S.C. § 201(b)(1)-(2). Bribery requires a showing that something of value was corruptly given, offered, or promised to a public official (as to the giver) or corruptly demanded, sought, received, accepted, or agreed to be received or accepted by a public official (as to the recipient) with intent, inter alia, "to influence any official act" (giver) or in return for being influenced in the performance of any official act" (recipient). Id.

Subsection (a) of § 201 sets forth definitions applicable to the section -- including a definition of "official act," § 201(a)(3). See 18 U.S.C. § 201(a)(3). There are two requirements the Government must identify to constitute an "official act": (1) a "question, matter, cause, suit, proceeding or controversy" that "may at any time be pending" or "may by law be brought" before a public official; and (2) a decision or action that a public official took "on" that question, matter, cause, suit, proceeding, or controversy, or an agreement the official made to do so. Id.

As to the first requirement, the Government must allege a "question, matter, cause, suit, proceeding or controversy" that "connote a formal exercise of governmental power, such as a lawsuit, hearing, or administrative determination."...