United States v. Goss

1

UNITED STATES OF AMERICA, Plaintiff, v. BONTIEA BERNEDETTE GOSS et. al., Defendants.

Nos. 19-03048-01, 02-CR-S-BCW

United States District Court, W.D. Missouri, Southern Division

May 24, 2022

REPORT AND RECOMMENDATION

DAVID P. RUSH, UNITED STATES MAGISTRATE JUDGE

Before the Court is the Motion to Dismiss the General Improvement Funds (GIF) Related Bribery Charges filed jointly by Defendants Bontiea B. Goss (“Mrs. Goss”) and Tommy R. Goss (“Mr. Goss”). (Doc. 102.) After full consideration of the legal arguments advanced by the parties, the undersigned RECOMMENDS that the Motion be DENIED.

I. Background

On March 29, 2019, a grand jury returned a 32-count indictment against Mrs. Goss, Mr. Goss, and co-defendant Jeremy Young Hutchinson, an attorney and Arkansas state senator from 2011 to 2018. On November 6, 2019, a grand jury returned a 35-count superseding indictment against Defendants. Mrs. Goss was charged in 24 counts and Mr. Goss in 27 counts, including charges for: wire-fraud conspiracy, in violation of 18 U.S.C § 371; federal funds theft and bribery, in violation of 18 U.S.C. §§ 666 and 2; wire and honest services fraud, in violation of 18 U.S.C. §§ 1343, 1346, and 2; aiding and assisting in the filing of false tax returns in violation of 26 U.S.C. § 7206(2); and structuring transactions to evade reporting requirements, in violation of 31 U.S.C. § 5324(a)(3).

On July 26, 2021, Defendants filed a motion for leave to file pretrial motions out of time, which was granted as unopposed. On August 10, 2021, Defendants filed the Motion, which has been fully briefed by the parties. On February 8, 2022, the undersigned heard oral argument on this and other pending motions. Mrs. Goss appeared in person with her attorneys, Melanie Morgan and Branden Bell, Mr. Goss appeared in person with his attorneys, Christopher Plumlee, Lisa Geary, and Wendy Johnson, and the Government was represented by Marco Palmieri, Randy Eggert, Shannon Kempf, and Stephanie Mazzanti.

II. Applicable Law

The right to be charged by a grand jury in an indictment is guaranteed by the United States Constitution for certain crimes. The Fifth Amendment provides that “[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.” U.S. Const. amend. V. The Sixth Amendment further guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be informed of the nature and the cause of the accusation.” U.S. Const. amend. VI. These Constitutional requirements are implemented by Rule 7(c) of the Federal Rules of Criminal Procedure, which specifies that “the indictment . . . must be a plain, concise, and definite written statement of the essential facts constituting the offense charged.”

In evaluating motions to dismiss an indictment for insufficiency, the Court makes its determination from the face of a criminal indictment. There is no summary judgment procedure in criminal cases nor do the rules provide for a pre-trial determination of the sufficiency of the evidence. United States v. Nabors, 45 F.3d 238, 240 (8th Cir. 1995). The Court's review is limited to the four corners of the indictment, accepting the Government's allegations as true. See United States v. Steffen, 687 F.3d 1104, 1117 n.2 (8th Cir. 2012). An indictment is legally sufficient on its face if (1) it contains all the essential elements of the offense charged, (2) fairly informs the defendant of the charges against which he must defend, and (3) alleges sufficient information to allow a defendant to plead a conviction or acquittal as a bar to a subsequent prosecution. Id. At 1109.

A slightly greater level of detail is required for the bank, mail, or wire fraud statutes, for which an indictment must “specify facts . . . with such reasonable particularity as will apprise the defendant, with reasonable certainty, of the nature of the accusation and as will enable the court to say that the facts stated are sufficient in law to support a conviction.” Id. at 1113 (cleaned up).

“An indictment which tracks the statutory language is ordinarily sufficient.” United States v. Prelogar, 996 F.3d 526, 531 (8th Cir. 2021) (cleaned up). “An indictment should not be read in a hyper technical fashion and should be deemed sufficient unless no reasonable construction can be said to charge the offense.” United States v. O'Hagan, 139 F.3d 641, 651 (8th Cir. 1998) (cleaned up); see also United States v. Sewell, 513 F.3d 820, 821 (8th Cir. 2008). The indictment may set out the elements in the words of the statute itself, if “those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished.” Nabors, 45 F.3d at 240. It is not necessary, however, “that a particular word or phrase appear in the indictment when the element is alleged in a form which substantially states the element.” United States v. Mallen, 843 F.2d 1096, 1102 (8th Cir. 1988) (cleaned up). “An indictment will ordinarily be held sufficient unless it is so defective” that no reasonable construction could charge the offense. Sewell, 513 F.3d at 821.

III. Discussion

In the Motion, Defendants move to dismiss portions of count 1, along with all of counts 57, 8-12, 16, 17, 21, and 22 because they do not sufficiently allege the essential elements of federal funds bribery or honest services fraud.^[1] Specifically, Defendants argue that (1) the federal funds bribery statute forbids paying a bribe to “an agent” of an entity that conducts a transaction, and here, the alleged payees (state legislators) were not “agents” of the state-government agency or nonprofit organization that conducted the transaction; (2) the federal funds bribery statute prohibits paying a bribe for an “official act,” however, the acts of the payees here merely expressed support-writing letters or making phone calls-and such does not constitute an “official act” under the statute; (3) the GIF-related, federal funds bribery charges fail to allege a “quid-pro-quo agreement” required under 18 U.S.C. § 666(a)(2); (4) portions of count 1, count 6 and count 7, relating to the hiring of person 14 and paying a retainer to co-defendant Hutchinson, should be dismissed because § 666(c) explicitly exempts employment or “bona fide salary, wages, fees, or other compensation”; (5) count 1 fails to allege an “agreement” to violate the federal funds bribery statute; and (6) the honest services fraud charges should be dismissed because the state legislators performed unofficial acts and even if the acts constituted official acts, the alleged payments were not bribes since it did not induce future acts, and thus, must be construed as gratuities.

In 78 numbered paragraphs, count 1 of the indictment charges a violation of 18 U.S.C. § 371, and relevant here, alleges that Defendants conspired: (1) “to corruptly give, offer, and agree to give, anything of value to any person, intending to influence and reward agents of the state of Arkansas-including Hutchinson, Woods,^[2] Neal,^[3] and Wilkins^[4]-in connection with a business, transaction, or series of transactions of the state of Arkansas involving $5,000 or more” in violation of 18 U.S.C. § 666(a)(2); (2) for Hutchinson, Woods, Neal, Wilkins, and others, “as agents of the state of Arkansas, to corruptly solicit and demand for the benefit of any person, and accept and agree to accept, anything of value from any person, intending to be influenced and rewarded in connection with a business, transaction, or series of transactions of $5,000 or more” in violation of 18 U.S.C. § 666(a)(1)(B); and (3) “to devise and intend to devise a scheme to defraud and deprive the citizens of Arkansas of their right to the honest services of [Arkansas state legislators], through bribery and kickbacks,” in violation of 18 U.S.C. §§ 1343 and 1346. (Doc. 65 at 5-6, 1819, ¶ 66 b and e.)

The principal conspiracy statute, 18 U.S.C. § 371, states:

If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.

The federal funds bribery statute, 18 U.S.C. § 666, in relevant part, provides:

(a) Whoever, if the circumstance described in subsection (b) of this section exists-

(1) being an agent of an organization, or of a State, local or Indian tribal government, or any agency thereof-

(B) corruptly solicits or demands for the benefit of any person, or accepts or agrees to accept, anything of value from any person, intending to be influenced or rewarded in connection with any business, transaction, or series of transactions of such organization, government, or agency involving any thing of value of $5,000 or more; or

(2) corruptly gives, offers, or agrees to give anything of value to any person, with intent to influence or reward an agent of an organization or of a State, local or Indian tribal government, or any agency thereof, 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 . . . shall be fined under this title, imprisoned not more than 10 years, or both.

(b) The circumstance referred to in subsection (a) of this section is that the organization, government, or agency receives, in any one year period, benefits in excess of $10,000 under a Federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance.

(c) This section

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