United States v. Menendez

137 F.Supp.3d 688

United States of America,

v.Robert Menendez and Salomon Melgen, Defendants.

Cr. No. 15–155

United States District Court, D. New Jersey.

Signed August 8, 2015

Peter Koski, Amanda Rose Vaughn, Joseph Patrick Cooney, Monique Tara Abrishami, U.S. Department of Justice, Washington, DC, for Plaintiff.

Abbe David Lowell, Chadbourne & Parke LLP, Washington, DC, Jenny R. Kramer, Chadbourne & Parke LLP, New York, NY, for Defendant Robert Menendez.

Anne Marie Lyons, Maria A. Dominguez, Not A Member of N.J. Bar, Matthew I. Menchel, Kobre & Kim, LLP, Miami, FL, Matthew I. Menchel, Kobre & Kim LLP, New York, NY, Kirk Ogrosky, Arnold & Porter LLP, Murad S. Hussain, Arnold & Porter LLP, Washington, DC, for Defendant Salomon Melgen.

OPINION

Walls. Senior District Judge

Defendant Robert Menendez moves to dismiss Count Twenty–Two of the indictment in this criminal case, which charges him with falsifying, concealing, or covering up material facts in financial statements he filed with the Secretary of the United States Senate, on multiple grounds. After oral argument on September 17, 2015, the Court denies this motion.

PROCEDURAL AND FACTUAL BACKGROUND

On April 1, 2015, Defendants Robert Menendez, who has represented New Jersey in the United States Senate since 2006, and Dr. Salomon Melgen, an ophthalmologist who resides and practices his profession in Florida, were indicted in the District of New Jersey on charges of bribery and related crimes. Indictment, EFC No. 1. The procedural history of this case, starting with its time before the grand jury, has already been discussed in the Court's opinion on Defendants' Speech or Debate Clause-related motions, ECF No. 117, and its findings are incorporated here.

Count Twenty–Two of the indictment charges Senator Menendez with violating 18 U.S.C. §§ 1001(a)(1), (c)(1) by falsifying, concealing, or covering up material facts on annual financial disclosure forms he filed with the Secretary of the Senate for the calendar years 2006, 2007, 2008, and 2010, as required by the Ethics in Government Act of 1978 ("EIGA"). Specifically, the indictment alleges that Menendez failed to disclose reportable gifts he received from Dr. Melgen in the alleged bribery scheme, including private, chartered, and first-class commercial flights in 2006, 2007, 2008, and 2010, a car service in 2008, and hotel stays in Paris and Punta Cana in 2010. ECF No. 1 ¶¶ 266–72.

On July 20, 2015, Dr. Melgen and Senator Menendez filed fifteen separate motions to dismiss the indictment in whole or in part under Fed. R.Crim. Pr. 12(b)(3). ECF No. 48–61. See Def. Summary Chart of Mot. Dismiss, ECF No. 47, for descriptions of each motion to dismiss. On September 28, 2015, the Court denied Senator Menendez's motions to dismiss the indictment on Speech or Debate Clause grounds, ECF No. 117, Dr. Melgen's motion to dismiss and to suppress evidence based on an allegedly illegal search and seizure, ECF No. 121, and Defendants' joint motions to dismiss based on false testimony and prosecutorial misconduct, ECF No. 123, and grand jury bias, ECF No. 125, and granted in part and denied in part Menendez's motions to dismiss on First Amendment grounds. ECF No. 119.

The Court addresses the remaining motions separately. In Motion to Dismiss 13, Senator Menendez argues that Count Twenty–Two of the indictment must be dismissed because (a) the indictment fails to allege sufficient facts to establish venue, (b) the count is time-barred, (c) the count is unconstitutionally duplicitous, (d) the Separation of Powers doctrine bars prosecution of the offense, (e) the Speech or Debate Clause of the U.S. Constitution bars prosecution of the offense, (f) the count fails to allege a crime because some of the gifts identified in the indictment are not "reportable," and (g) the Rulemaking Clause of the U.S. Constitution bars prosecution of the offense. Def. Mot. Dismiss 13, ECF No. 60. In Motion to Dismiss 7, Senator Menendez argues that Count Twenty–Two must be dismissed because it is unconstitutionally vague.¹ Def. Mot. Dismiss 7, ECF No. 54. The Government responded to Senator Menendez's Speech or Debate Clause and Separation of Powers doctrine arguments in a consolidated opposition to all of Defendants' Speech or Debate arguments, Opp. Mot. Dismiss, ECF No. 85 at 36–41, and responded to Menendez's remaining arguments about Count Twenty–Two with another consolidated opposition, Opp. Mot. Dismiss, ECF No. 87 at 35–47, 50–53. Except for the Speech or Debate Clause and Separation of Powers doctrine arguments, which the Court has decided in a separate opinion, ECF No. 117, the Court now addresses all of Defendant Menendez's Count Twenty–Two arguments.

STANDARD OF REVIEW

Federal Rule of Criminal Procedure 12(b)(3) allows a defendant to move to dismiss an indictment for a failure to state an offense. Fed. R. Crim. P. 12(b)(3)(B)(v). An "indictment is sufficient when it (1) contains the elements of the offense intended to be charged and sufficiently apprises the defendant of what he must be prepared to meet, and (2) allows him to plead an acquittal or conviction in bar of future prosecutions for the same offense." United States v. John–Baptiste, 747 F.3d 186, 195 (3d Cir.2014) (internal citations and quotations omitted). For purposes of a motion to dismiss, the Court must accept as true all factual allegations in the indictment. United States v. Besmajian, 910 F.2d 1153, 1154 (3d Cir.1990). "[C]riminal indictments are to be read as a whole and interpreted in a common sense manner," United States v. Lee, 359 F.3d 194, 209 (3d Cir.2004) (quotations omitted), and dismissal under Rule 12(b)(3)"may not be predicated upon the insufficiency of the evidence to prove the indictment's charges." United States v. DeLaurentis, 230 F.3d 659, 661 (3d Cir.2000).

DISCUSSION

As an initial matter, the Court notes that Count Twenty–Two of the indictment charges Defendant Menendez with making "False Statements" but cites 18 U.S.C. §§ 1001(a)(1), (c)(1) and alleges that Menendez "knowingly and willfully falsified, concealed, and covered up by a trick, scheme, and device, material facts in a matter within the jurisdiction of the Legislative Branch." ECF No. 1 ¶ 271. A separate subsection of 18 U.S.C. § 1001 criminalizes "mak[ing] any materially false, fictitious, or fraudulent statement or representation," 18 U.S.C. § 1001(a)(2). The elements of this "false statement" offense are different from the elements of the "concealment of material facts" offense codified at 18 U.S.C. §§ 1001(a)(1) and alleged in the indictment. United States v. Curran, 20 F.3d 560, 566 (3d Cir.1994). Reading the indictment in a "common sense manner," Lee, 359 F.3d at 209, the Court finds that Count Twenty–Two charges Menendez with concealment of material facts, not with making false statements, and considers the sufficiency of the allegations under 18 U.S.C. §§ 1001(a)(1), (c)(1).

The Ethics in Government Act of 1978 ("EIGA") requires members of the Senate to file annual financial disclosure reports with the Secretary of the Senate. 5 U.S.C. App. 4 § 103(h)(l)(A)(i)(II). Title 18, Section 1001 of the U.S.Code provides criminal penalties for anyone who, "in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully falsifies, conceals, or covers up by any trick, scheme, or device a material fact." 18 U.S.C. § 1001(a)(1). This statute applies to "a document required by law, rule, or regulation to be submitted to the Congress or any office or officer within the legislative branch," 18 U.S.C. § 1001(c)(1). Defendants do not dispute that EIGA financial disclosure reports are documents covered by this statute.

To establish a violation of 18 U.S.C. § 1001(a)(1), the Government must demonstrate that the defendant "(1) knowingly and willfully; (2) conceal [ed] and cover[ed] up by trick, scheme or device; (3) a material fact; (4) in any matter within the jurisdiction of a department or agency of the United States." United States v. Rooney, 37 F.3d 847, 855 (2d Cir.1994) (quoting United States v. Swaim, 757 F.2d 1530, 1533 (5th Cir.1985) ).

I. The indictment alleges sufficient facts to establish venue for Count Twenty–Two.

Senator Menendez first argues that Count Twenty–Two must be dismissed because it does not properly allege venue in New Jersey. ECF No. 60–1 at 3–10.

"Article III of the Constitution requires that "[t]he Trial of all Crimes ... shall be held in the State where the said Crimes shall have been committed." United States v. Rodriguez–Moreno, 526 U.S. 275, 278, 119 S.Ct. 1239, 143 L.Ed.2d 388 (1999) (quoting U.S. Const. Art. III, § 2, cl. 3 ); see also Fed. R. Crim. P. 18 ("Unless a statute or these rules permit otherwise, the government must prosecute an offense in a district where the offense was committed"). Section 1001 does not contain a venue provision, but 18 U.S.C. § 3237 states that "any offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed." 18 U.S.C. § 3237(a). See United States v. Ringer, 300 F.3d 788, 790–91 (7th Cir.2002) ; United States v. Wiles, 102 F.3d 1043, 1064 (10th Cir.1996)vacated on other grounds by United States v. Schleibaum, 522 U.S. 945, 118 S.Ct. 361, 139 L.Ed.2d 282 (1997) ; United States v. Simon, 510 F.Supp. 232, 238 (E.D.Pa.1981) (applying 18 U.S.C. § 3237 venue provision to § 1001 venue analysis). To determine where an offense was committed, courts look to the "nature of the crime alleged and the location of the act or acts constituting it." United States v. Anderson, 328 U.S. 699, 703, 66 S.Ct. 1213, 90 L.Ed. 1529 (1946). The Government has the burden to demonstrate venue by a preponderance of the evidence. Perez, 280 F.3d at 330.

In an indictment, the government must allege venue "without a facially obvious...