F I L E D March 26, 2019

Transcription

1 STATE OF INDIANA ) IN THE MARION SUPERIOR COURT )SS: CRIMINAL DIVISION, ROOM FOUR COUNTY OF MARION ) STATE OF INDIANA V. F I L E D March 26, 2019 MARION COUNTY CLERK OF THE COURT ML DANIEL TANOOS CAUSE NO. 49G FC Findings 0f Fact and Conclusions 0f Law The Court having considered briefing, evidence and argument related t0 Defendant s Motion to Dismiss makes the following findings 0f fact and conclusions of law. I. Findings 0f Fact 1) The State filed this cause 0n September 24, 2018 charging the defendant with three (3) counts of Bribery under Indiana Code (a)(4)1. 2) In each of the bribery counts the State alleges that the Defendant, a public servant, solicited, accepted, or agreed to accept property, that he was not authorized by law to accept, to control the performance of an act related t0 his function as a public servant on three (3) separate occasions. 3) The Probable Cause Affidavit sets forth a course of conduct whereby the defendant, a public servant, through Doug Tischbein, an ESG employee and vendor doing business with the Vigo County School Corporation ( VCSC ), requests dinner, tickets, donations and favors 0f value from ESG. The Defendant, in his position as Superintendent, makes a 1 At the hearing on December 19, 2018, the State moved to amend the Information to correct the code citation of on the Information to Indiana Code (a)(2) and the State s motion was granted by the Court. 1

2 recommendation t0 the VCSC School Board to award a contract/business to ESG. The VCSC School Board historically followed the recommendation of the defendant. 4) ESG is a guaranteed energy savings contractor headquartered in Newburgh, Indiana with an Indianapolis office location. During the time period charged the Indianapolis office was located at 8910 Purdue Road, Suite 200 or 3905 Vincennes Road, Suite ) The Defendant was the Superintendent of VCSC. The VCSC School Board heard recommendations from the Superintendent regarding vendors who should be awarded contracts. While receiving benefits from ESG through Tischbein, the defendant repeatedly recommended ESG and the VCSC School Board repeatedly followed his recommendation. II. Conclusions 0f Law 1) As the moving party 0n the Motion t0 Dismiss, the Defendant bears the burden 0f showing as a matter of law that the Charging Information and Probable Cause Affidavit have insufficiently pled the crimes alleged and d0 not state an offense. 2) At this stage, the facts alleged in the Charging Information are generally taken as true, though the Defendant may offer evidence that the facts alleged do not constitute a crime. State v. King, 502 N.E.2d 1366, 1369 (Ind. Ct. App. 1987). 3) The Court has discretion to consider evidence upon a motion to dismiss? Ind. Code (a) & (f); see also State v. Fettig, 884 N.E.2d 341, 345 (Ind. Ct. App. 2008). However, that discretion is not absolute and issues of fact are properly the province 0f the jury. See Ceaser v. State, 964 N.E.2d 91 1, 919 (Ind. Ct. App. 2012) (statutory defenses are for the jury); State v. Gill, 949 N.E.2d 848, (Ind. Ct. App )(distinguishing Fettig 0n the 2 Neither party presented additional evidence at the December 19, 2018 hearing. 2

3 grounds that it decided a narrow issue of school discipline and holding dismissal inappropriate Where the State has alleged facts sufficient t0 constitute an offense). 4) Defendant claims that Counts II and III should be dismissed due t0 a lack 0f both subj ect matter and personal jurisdiction in Violation 0f Indiana Code (a). 5) The State must prove venue by a preponderance of the evidence at trial and circumstantial evidence may be sufficient to establish proper venue. Wurster v. State, N.E.2d 341, 348 (Ind. 1999). 6) In Wurster, the Court reiterated, as it had in Kindred v. State, 540 N.E.2d 1161, 1166 (Ind. 1989), that venue may be challenged by pretrial motion. However, the proper motion is a motion t0 transfer rather than a motion t0 dismiss. Id. The Court, however, has considered the venue challenge as presented by the defense in its pretrial motion. 7) Accepting the facts alleged in the probable cause affidavit and information as true, the bribery charges arise from the interactions between defendant and Tischbein, an ESG employee. During the time frame of the charges in this cause, Tischbein worked from two Indianapolis offices, first from 8910 Purdue Road, Suite 200, Indianapolis, and subsequently at 3905 Vincennes Road, Suite 505, Indianapolis. The communication that is the subject of the bribery solicitation and acceptance between Tischbein and the defendant regarding the charged offenses occurred over , as alleged in the probable cause affidavit. Tischbein s office is located in Indianapolis and in accordance With Indiana Code (b) and ), Marion County is an appropriate venue in this matter. Accordingly, Defendant s Motion t0 Dismiss Counts II and III for lack ofjurisdiction is hereby DENIED. 8) Defendant next argues that Counts I-III should be dismissed because the charging information does not state facts that constitute a criminal offense pursuant to Indiana Code 35-

4 (a)(5). In its brief, defendant argued that the State must plead a quidpro quo and that the facts in the probable cause affidavit and information do not constitute a criminal offense, citing Winn v. State, Wurster v. State and McDonnell v. United States in support of their position. 9) In his brief, the defendant argued that the State has charged the defendant With a generalized bribe theory which is not supported under Indiana law. An essential element 0f the offense of bribery is a quidpro qua. Winn v. State, 722 N.E.2d 345, 347 (Ind.Ct.App. 1999), citing Wurster v. State, 708 N.E.2d 587, 594 (Ind.Ct.App. (1999), affd by (1999) Ind., 715 N.E.2d 341, r hrg denied. The defendant further argued that the United States Supreme Court held in McDonnell that bribery statutes must not be read so broadly that nearly anything a public official accepts from a campaign contribution t0 lunch-counts as a quid; and nearly anything a public official does- from arranging a meeting t0 inviting a guest t0 an event-counts as a qua. McDonnell v. U.S. 136 SCt. 2355, 2372 (2016) (citation omitted). 10) The State countered that it has met the requirements 0f Indiana Code by alleging facts sufficient in the probable cause affidavit and that each count of bribery tracked the language of the statute, including additional factual allegations. 11) In support 0f its position, the State cited the McDonnell opinion in Which the Supreme Court addressed the quidpro qua element, The agreement need not be explicit, and the public official need not specify the means that he will use to perform his end of the bargain. Nor must the public official in fact intend to perform the official act, so long as he agrees t0 d0 so. A jury could, for example, conclude that an agreement was reached if the evidence shows that the public official received a thing of value knowing that it was given with the expectation that the official would perform an official act in return. Id. at 2371.

5 Federal courts have interpreted the aspect 0f agreement undergirding a quidpm qua arrangement as synonymous With specific intent rather than a requiring an explicit agreement. See United States v. Ring, 706 F.3d 460, 468 (DC Cir. 2013). When...a public official is charged with soliciting a bribe, the evidence must show that the official conveyed an intent t0 perform official acts in exchange for personal gain. Id. The line between legal lobbying and criminal conduct is crossed...when a gift is given with intent t0 influence an official act... Id. (internal citations omitted). Lastly, the State argued, in its brief and oral argument, that the facts in this case can be distinguished from Wurster, in that the State has charged the bribery counts With specificity. The indictment in Wurster charged bribery over a period of three (3) years and the acts alleged were support 0r promote legislative measures and decisions resulting in economic gain. The information in this cause alleges a specific date for each count, and the probable cause affidavit contains the communication content, dates and times t0 support the date and criminal conduct. In addition, the State has alleged a specific act, the defendant s recommendation t0 award contract and/or continued business With ESG. 12) A charging information must allege the elements of the crime such that the accused is given sufficient notice of the nature 0f the charges against him so that he may anticipate the proof and prepare a defense in advance 0f trial. See Ind. Const. Art. 1, 13; Ind.Code ; Smith v. State, 465 N.E.2d 702, 704 (Ind. 1984). The State is not required t0 include detailed factual allegations in the charging instrument, though it may choose t0 d0 so. Richardson v. State, 717 N.E.2d 32, 51 (Ind. 1999).

6 13) The Court may consider both the charging information and the probable cause affidavit When determining Whether the State has alleged sufficient facts t0 meet its burden. See e.g., Woods v. State, 980 N.E.2d 439, (Ind. Ct. App. 2012). 14) In Counts I, II, and III, the State tracks the language of the bribery statute under Indiana law. Additionally, the probable cause affidavit sets forth sufficient facts in support 0f each count to meet its burden under Indiana Code ) Indiana s bribery statute does not follow the language nor the definition 0f official act as defined in 201(a)(3) as applied in the McDonnell opinion. The bribery statute under Indiana Code (a) uses the phrase an act related t0 the employment 0r function 0f a public servant. 16) In Winn, the Indiana Court 0f Appeals found that there was sufficient evidence t0 sustain Winn s conviction and held [that] t0 convict Winn 0f bribery, the state had t0 prove that Winn conferred money upon Lopez, Which Lopez was not authorized to accept, in an attempt to influence Lopez's actions as Jay County Prosecutor.... The only remaining element, therefore, which the State was required t0 prove was that Winn was attempting to influence Lopez to act in a particular manner in his capacity as prosecutor. The state had t0 prove that Winn gave the money to Lopez s0 that Lopez would not prosecute him for gambling. An essential element to the offense 0f bribery is a quid pro quo. Wurster v. State (1999) Ind.App., 708 N.E.2d 587, 594 aff d by (1999) Ind., 715 N.E.2d 341, reh'g denied. During the trial, the state offered the diamond shaped letter Which Lopez received from Winn. The printed words were sufficient to lead a reasonable trier of fact, in this case the jury, t0 infer that Winn was attempting t0 influence Lopez's actions. Id. at ) Indiana s bribery statute nor the case law require that a quidpro quo is an element that must be plead by the State in the Information, but it is a matter for the trier of fact t0 determine.

7 18) Defendant s Motion t0 Dismiss Counts I-III because the charging information does not state facts that constitute a criminal offense shall be DENIED. 19) Lastly, the Defendant raised an argument that Counts I- III should be dismissed due to lack of specificity in Violation Indiana Code (a)(4). The defendant contends that this lack 0f specificity means that he has not been adequately informed 0f the charges and is unable to prepare a defense. Additionally, the defendant argued that the State charged an overly broad interpretation of the bribery statute and for those reasons the information does not state the bribery offense With sufficient certainty. 20) In general, a criminal charge may only allege one criminal act. Ind. Code Duplicity occurs Where two or more separate offenses are alleged in a single charge. State v. Weil, 89 Ind. 286, 289 (1883). However, our courts have held that where multiple acts comprise a related scheme 0r continuous course of conduct, and any duplicity that exists does not harm the defendant, the charges are proper. See Vest v. State, 930 N.E.2d 1221,1226 (Ind. Ct. App. 2010); Riehle v. State, 823 N.E.2d 287, 296 (Ind. Ct. App.2005); and Chambers v. State, 10 N.E.2d 735, 736 (1937). 21) The federal courts have also examined the implications of duplicity When multiple acts of a scheme or continuing course of conduct have occurred, and have held that in determining whether improper duplicity presents a potential harm t0 the defendant, the court must review the Charges to determine Whether any 0f four main principles are implicated: (1) double jeopardy concerns, (2) adequate notice t0 the defendant 0f the acts alleged against him, (3) that he may be prejudiced by evidentiary rulings at trial, and (4) jury unanimity in reaching a verdict. United States v. Berardi, 675 F.2d 894, 899 (7th Cir. 1982). The court initially recognized that [t]he line between multiple offenses and multiple means t0 the commission 0f a

8 single continuing offense is often a difficult one to draw. The decision is left, at least initially, t0 the discretion 0f the prosecution. Id. at 898, citing United States v. Tanner, 47 1 F.2d 128, 138 (7th Cir.), cert. denied, 409 U.S. 949, 93 S.Ct. 269, 34 L.Ed.2d 220 (1972); United States v. Alsobrook, 620 F.2d 139, 142 (6th Cir.), cert. denied, 449 U.S. 843, 101 S.Ct. 124, 66 L.Ed.2d 51 (1980). The court then went 0n t0 find that Where the defendant was charged With one count of obstruction ofjustice for his multiple actions over a four (4) month period to influence the testimony of a witness against him, the charge was not improperly duplicitous. Id. at 899. Because the defendant had adequate notice 0f the three (3) specific alleged acts 0f intimidation 0r obstruction and the jury instruction given as to the necessity of the jury to be unanimous as t0 at least one of the alleged acts was sufficient, the count was not fatally duplicitous. Id. 22) The State has charged the Defendant With the following: In count I, the Information alleges that Tanoos, 0n 0r about August 24, 2013, did solicit, accept, 0r agree to accept any property, that is: food and/or beverages, except property the person is authorized by law t0 accept, With intent t0 control the performance of an act, that is: recommendation to award contract and/or continued business With ESG t0 the Vigo County School Board related to the employment or function 0f a public servant, that is: Superintendent of Vigo County School Corporation. In count II, it is alleged that Tanoos, on or about July 11, 2014, did solicit, accept, or agree t0 accept any property, that is: food and/or beverages, except property the person is authorized by law t0 accept, with intent to control the performance of an act, that is: recommendation t0 award contract and/or continued business With ESG t0 the Vigo County School Board related t0 the employment 0r function 0f a public servant, that is: that is: Superintendent 0f Vigo County School Corporation.

9 March 26, 2019 In count III, the Information alleges that Tanoos, 0n 0r about August 10, 2014, did solicit, accept, or agree to accept any property, that is: tickets and/or beverages, except property the person is authorized by law t0 accept, with intent to control the performance of an act, that is: recommendation t0 award contract and/or continued business with ESG t0 the Vigo County School Board, related t0 the employment or function 0f a public servant, that is: Superintendent 0f Vigo County School Corporation. 23) The Court finds that there is no duplicity in Counts I-III and they have been charged With specificity t0 advise the defendant 0f his alleged criminal actions. Accordingly, the Motion t0 Dismiss Counts I III based on lack of stating offense with sufficient certainty is hereby DENIED. March 26, 2019 this ORDER. WHEREFORE, Defendant s Motion to Dismiss is hereby DENIED in accordance with Lisa Borges, Judge Marion Superior Court 4 Dated: March 26, 2019 Distribution Terry Curry/Janna Skelton Marion County Prosecutor s Office James Voyles/Jennifer Lukemeyer Counsel for Defendant Tanoos

10 10