Case 4:15-cr-00300-BRW Document 74 Filed 06/28/16 Page 1 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS UNITED STATES v. CRIMINAL NO. 4:15-cr-00300-BRW THEODORE E. SUHL MOTION TO DISMISS THE INDICTMENT (Defense Pretrial Motion No. 5 For the reasons set forth in the accompanying brief, defendant Theodore Suhl, through undersigned counsel, moves this Court, pursuant to Federal Rule of Criminal Procedure 12(b, to dismiss the Indictment because it fails to allege an official act as defined by the Supreme Court in McDonnell v. United States, No. 15-474, 2016 WL 3461561 (U.S. June 27, 2016. A proposed order is attached. Date: June 28, 2016 Respectfully submitted, By: /s/ Robert M. Cary Robert M. Cary Alex G. Romain Simon A. Latcovich Thomas L. Harris WILLIAMS & CONNOLLY LLP 725 Twelfth Street, N.W. Washington, DC 20005 Telephone: (202 434-5000 Facsimile: (202 434-5029 rcary@wc.com aromain@wc.com slatcovich@wc.com tharris@wc.com
Case 4:15-cr-00300-BRW Document 74 Filed 06/28/16 Page 2 of 3 Charles A. Banks (Bar No. 73004 BANKS LAW FIRM PLLC 100 Morgan Keegan Dr., #100 Little Rock, AR 72202 Telephone: (501 280-0100 Facsimile: (501 280-0166 cbanks@bankslawfirm.us Attorneys for Defendant Theodore E. Suhl 2
Case 4:15-cr-00300-BRW Document 74 Filed 06/28/16 Page 3 of 3 CERTIFICATE OF SERVICE I hereby certify that on June 28, 2016, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which sent notifications of such filing to the following: John D. Keller Lauren Bell Amanda R. Vaughn john.keller2@usdoj.gov lauren.bell2@usdoj.gov amanda.vaughn@usdoj.gov By: /s/ Robert M. Cary Robert M. Cary (pro hac vice WILLIAMS & CONNOLLY LLP 3
Case 4:15-cr-00300-BRW Document 74-1 Filed 06/28/16 Page 1 of 12 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS UNITED STATES v. CRIMINAL NO. 4:15-cr-00300-BRW THEODORE E. SUHL BRIEF IN SUPPORT OF MOTION TO DISMISS THE INDICTMENT (Defense Pretrial Motion No. 5 Yesterday, a unanimous Supreme Court held that in order to be an official act, the Government must prove that the public official made a decision or took an action... or agreed to do so. 1 The Court also held that not all actions necessarily suffice; instead, there must be some formal exercise of governmental power. 2 Thus, for example, making a phone call or arranging a meeting about government matters does not constitute an official act. The Supreme Court emphasized that this interpretation was necessary to avoid criminalizing routine political activity because the government s interpretation could cast a pall of potential prosecution over relationships between public officials and their constituents. 3 Indeed, as pointed out by White House counsel who worked in every administration from that of President Reagan to President Obama, the government s proposed definition of an official act would likely chill [public] officials interactions with the people they serve and thus damage their ability to effectively perform their duties. 4 That brings us to the current Indictment, which is explicit that the only 1 McDonnell v. United States, No. 15-474, 2016 WL 3461561, at *12 (U.S. June 27, 2016 (emphasis added. 2 Id. at *17. 3 Id. at *18. 4 Id.
Case 4:15-cr-00300-BRW Document 74-1 Filed 06/28/16 Page 2 of 12 action or decision allegedly agreed upon by the defendant and Steven Jones is that Jones agreed to look into various issues. But such an agreement between a public official and constituent is the type of democratic discourse the Supreme Court sought to protect in McDonnell. 5 Accordingly, the Indictment should be dismissed. THE FACTS AND PROCEDURAL HISTORY In order to understand why McDonnell requires dismissal here, a brief description of the case (and comparison to the current case is necessary. Virginia Governor Robert McDonnell was charged with bribery based on his family s acceptance of gifts totaling more than $175,000 in exchange for certain actions that the government contended were official acts. 6 The alleged payor of the bribes (Jonnie Williams hoped that Virginia s public universities would perform research studies on anatabine, and Williams wanted Governor McDonnell s assistance in obtaining these studies. 7 The alleged official acts at issue there were: (1 arranging meetings for [Williams] with Virginia government officials, who were subordinates of the Governor, to discuss and promote Anatabloc ; (2 hosting, and... attending, events at the Governor s Mansion designed to encourage Virginia university researchers to initiate studies of anatabine and to promote Star Scientific s products to doctors for referral to their patients ; (3 contacting other government officials in the [Governor s Office] as part of an effort to encourage Virginia state research universities to initiate studies of anatabine ; (4 promoting Star Scientific s products and facilitating its relationships with Virginia government officials by allowing 5 Id. 6 Id. at *1. 7 Id. 2
Case 4:15-cr-00300-BRW Document 74-1 Filed 06/28/16 Page 3 of 12 [Williams] to invite individuals important to Star Scientific s business to exclusive events at the Governor s Mansion ; and (5 recommending that senior government officials in the [Governor s Office] meet with Star Scientific executives to discuss ways that the company s products could lower healthcare costs. Supp. App. 47 48 (indictment. 8 The jury ultimately convicted Governor McDonnell, but he appealed his conviction on the basis that the jury had been improperly instructed on the definition of official act. When the McDonnell case came before the Supreme Court, the government took the position that official act should be very broadly defined to cover every single act by a public official. The government took the same position in this case (with the same emphases in responding to Suhl s motions to dismiss: McDonnell, 2016 WL 3461561, at *12 (emphases in original According to the Government, Congress used intentionally broad language in 201(a(3 to embrace any decision or action, on any question or matter, that may at any time be pending, or which may by law be brought before any public official, in such official s official capacity. The Government concludes that the term official act therefore encompasses nearly any activity by a public official. Gov t Opp. to Suhl s Motions To Dismiss Counts Two to Five, ECF No. 33 at 9-10 (emphases in original The breadth of [ 201] s reach is demonstrated by its language, defining official act as any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official s official capacity, or in such official s place of trust or profit. 9 The Supreme Court unequivocally rebuffed this argument: [W]e reject the Government s reading of 201(a(3 and adopt a more bounded interpretation of official act. Under that 8 Id. at *10 (alterations in original. 9 In both cases, the government relied on the same century-old case, United States v. Birdsall, 233 U.S. 223, 234 (1914. The Supreme Court specifically rejected the interpretation of Birdsall proffered by the government both in the McDonnell case and in this case. See McDonnell, 2016 WL 3461561, at *17. 3
Case 4:15-cr-00300-BRW Document 74-1 Filed 06/28/16 Page 4 of 12 interpretation, setting up a meeting, calling another public official, or hosting an event does not, standing alone, qualify as an official act. 10 A brief reminder about the alleged official acts in this case demonstrates the startling similarities to McDonnell and explains why the government defended both cases in the same manner: (1 Jones agreed to look into asking the Governor to reappoint Suhl to the Arkansas Child Welfare Agency Board. (2 Jones agreed to look into the issue of expanding the site radius for mental illness providers. (3 Jones agreed to look into whether he could assume responsibility for Medicaid billings. (4 Jones said he would see about... what s been going on with an exclusive referral policy. (5 Jones allegedly provided Suhl a monitoring document that Suhl had already seen. 11 The theory of the Indictment is that Jones agreed to engage in official acts. 12 One can read the Indictment over and over again and not find any allegation that Ted Suhl believed that Jones would do anything other than what Jones allegedly agreed to do, which was look into certain issues. The flaw with the Indictment is that after McDonnell, what the government claims are official acts are not official acts at all. The Supreme Court was clear that McDonnell altered the legal landscape for political corruption cases in order to protect routine political interactions from overzealous prosecutions. In other words, McDonnell is designed to spare innocent people from undergoing criminal prosecution. Professor Richard Briffault, a Columbia Law School 10 Id. at *12. 11 Indictment 149, 150, 152, 155 157, respectively. 12 Id. 12.c. & f. 4
Case 4:15-cr-00300-BRW Document 74-1 Filed 06/28/16 Page 5 of 12 professor and expert on government ethics, notes that prosecutors will now have to link up the quid and quo more tightly and show that the gifts influenced real official actions. 13 ARGUMENT I. The Court Adopted a Much Narrower Interpretation of Official Act That Specifically Forecloses This Prosecution. As noted above, the Supreme Court rejected the government s expansive definition that any action taken by a public official could constitute an official act. The Supreme Court took a much more limited approach, specifically defining an official act in two parts: First, the government must identify 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. Second, the Government must prove that the public official made a decision or took an action on that question, matter, cause, suit, proceeding, or controversy, or agreed to do so. 14 Put simply, an official act requires (1 a government proceeding or controversy (in this case, for example, allegedly enacting regulations to expand the site radius for mental health providers in Arkansas and (2 a decision or action on that same government proceeding or controversy (in this case, for example, allegedly looking into this issue. Not all decisions or actions will do; rather, there must be a formal exercise of governmental power. 15 The Indictment here cannot clear this second hurdle. 13 Fredreka Schouten, Public-Corruption Cases Just Got Harder to Prove, USA Today (June 27, 2016, http://www.usatoday.com/story/news/politics/2016/06/27/supreme-court-makes-publiccorruption-tougher-to-prove-in-bob-mcconnell-case/86435400/. 14 McDonnell, 2016 WL 3461561, at *12. 15 Id. at *17. 5
Case 4:15-cr-00300-BRW Document 74-1 Filed 06/28/16 Page 6 of 12 II. The Alleged Official Acts Here Do Not Allege Any Decision or Action on a Government Proceeding or Controversy. Even assuming the Indictment here alleges the first half of what constitutes an official act, it omits the second necessary element: that there was a decision or action (or even agreement to make a decision or act on the alleged Arkansas Department of Human Services proceeding or controversy. As noted above, at best the alleged official act is that Jones agreed to look into various issues. But this conduct is one step removed from making a telephone call or arranging a meeting acts that the Supreme Court held were normal political interactions rather than the quo in a quid pro quo bribery case. More specifically, the Supreme Court held that the definition of official act requires the public official to have made a decision or t[aken] an action... or agreed to do so on the government matter or proceeding. 16 The Court applied this requirement to specific examples, holding that merely setting up a meeting, hosting an event, or calling another official does not qualify as a decision or action. 17 Specifically, the Court noted: Setting up a meeting, hosting an event, or calling an official (or agreeing to do so merely to talk about a research study or to gather additional information, however, does not qualify as a decision or action on the pending question of whether to initiate the study. Simply expressing support for the research study at a meeting, event, or call or sending a subordinate to such a meeting, event, or call similarly does not qualify as a decision or action on the study, as long as the public official does not intend to exert pressure on another official or provide advice, knowing or intending such advice to form the basis for an official act. Otherwise, if every action somehow related to the research study were an official act, the requirement that the public official make 16 Id. at *12. 17 Id. at *15. 6
Case 4:15-cr-00300-BRW Document 74-1 Filed 06/28/16 Page 7 of 12 a decision or take an action on that study, or agree to do so, would be meaningless. 18 In other words, even if Jones had arranged meetings or made telephone calls about the issues that the government alleges he looked into in this case, those actions would still have fallen short of the legal standard for culpability set forth by the Supreme Court in McDonnell. But Jones did not even allegedly take such actions or agree to take such actions; instead, the only official act the government alleges he took is that he agreed to look into various things. The Supreme Court has said that an official act is just that some sort of action or decision. Looking into things is not enough. If it were, it would risk criminalizing normal political interaction between public officials and their constituents. 19 The government previously argued that To the extent the defendant is arguing that whether action is an official act turns on the public official s agreement to do it, the government is unable to find any case law supporting such a proposition and the defendant cites none. 20 That may have been true then, but now the Supreme Court has spoken, holding that the Government must prove that the public official made a decision or took an action... or agreed to do so. 21 Put another way, the government must prove that Suhl intended to engage in an impermissible quid pro quo. McDonnell now requires that the quo part of that transaction the official act must involve both a (1 government proceeding and (2 some action or decision (or agreement regarding the same by the public official. That second requirement, which is the 18 Id. at *16 (emphases added. 19 Id. at *18. 20 ECF No. 33 at 14 n.2 (emphasis added. 21 McDonnell, 2016 WL 3461561, at *12. 7
Case 4:15-cr-00300-BRW Document 74-1 Filed 06/28/16 Page 8 of 12 real development in McDonnell, is what is missing in the Indictment. 22 The Indictment just does not allege that Jones agreed to act or make any decision on any government proceeding. What makes this case unique is that it actually alleges the opposite merely that Suhl and Jones agreed that Jones would look into issues, which happens every day in our democracy. This behavior should not be deemed criminal after McDonnell. The government has also previously tried to separate Suhl s alleged request for various issues from Jones alleged agreement to look into these same issues. In other words, the government has argued that the Court s analysis should stop after Suhl s request and ignore Jones agreement to look into these issues. There are two problems with this argument. First, it is not what the Indictment alleges. According to the plain text of the Indictment, Suhl and Jones allegedly agreed that Jones would look into certain issues. 23 The government should not be permitted to ignore certain allegations because they no longer fit the government s legal theory. Second, McDonnell and specifically the two-part definition of official act now forecloses this argument. For example, the government alleged the following was an official act in McDonnell: contacting other government officials in the [Governor s Office] as part of an effort to encourage Virginia state research universities to initiate studies of anatabine. 24 Although the Supreme Court held that having Virginia state researchers study anatabine was a matter or question before the government (e.g., part one of the definition, that still did not constitute an official act because it failed to meet the second part of the definition as making 22 Hearing Tr. at 38, United States v. Suhl, NO. 15-cr-300 RBW (E.D. Ark. Jun. 15, 2016. 23 Indictment 149, 150, 151, 152, 155 157. 24 McDonnell, 2016 WL 3461561, at *10. 8
Case 4:15-cr-00300-BRW Document 74-1 Filed 06/28/16 Page 9 of 12 calls or setting up meetings was not an action or decision. 25 The Supreme Court has incorporated the action or decision requirement into the definition of an official act, which means that the government should not be permitted to separate them here in an attempt to save the current Indictment. The closest the government comes to alleging any action in the Indictment is the alleged provision of a monitoring document that Suhl already possessed. 26 McDonnell conclusively resolves that this is not an official act. The Court held that an official act must be a decision or action on a question, matter, cause, suit, proceeding or controversy and that even this question, matter, cause, suit, proceeding or controversy must involve a formal exercise of governmental power. 27 More specifically, the Supreme Court s holding explicitly forecloses the notion that providing information absent some exercise of government power could constitute an official act: 25 Id. at *14-15. 26 Indictment 157. In sum, an official act is a decision or action on a question, matter, cause, suit, proceeding or controversy. The question, matter, cause, suit, proceeding or controversy must involve a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee. It must also be something specific and focused that is pending or may by law be brought before a public official. To qualify as an official act, the public official must make a decision or take an action on that question, matter, cause, suit, proceeding or controversy, or agree to do so. That decision or action may include using his official position to exert pressure on another official to perform an official act, or to advise another official, knowing or intending that such advice will form the basis for an official act by another official. Setting up a meeting, talking to another official, or organizing an event (or 27 McDonnell, 2016 WL 3461561, at *17; see also Valdes v. United States, 475 F.3d 1319, 1322-23 (D.C. Cir. 2007 (en banc (citing 18 U.S.C. 201(a(3. 9
Case 4:15-cr-00300-BRW Document 74-1 Filed 06/28/16 Page 10 of 12 agreeing to do so without more does not fit that definition of official act. 28 Providing information is not an exercise of government power similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a court. And, in any event, Jones is not alleged to have taken any action or made any decision about the issues in the monitoring document. Thus, the allegations regarding the monitoring document also fail to allege an official act as a matter of law. * * * * * No matter how the government would like to now read the Indictment, it cannot square the allegations there with the new requirements set forth by the Supreme Court in McDonnell. The Supreme Court was clear that in order to limit overly overzealous prosecutions that would potentially criminalize normal political interactions, the alleged official act must include some sort of action, decision, or agreement regarding an action or decision. Making phone calls and setting up meetings did not pass muster; therefore, looking into something is clearly insufficient. The official acts alleged here are even further removed from the applicable legal standard than those alleged in McDonnell. The Supreme Court in McDonnell rejected those allegations in a unanimous decision. The government here attempted to defend the Indictment on precisely the same grounds that ultimately proved unsuccessful in McDonnell. This Court should follow the Supreme Court s lead and dismiss the Indictment. III. The Supreme Court Applied Two Additional Factors That Weigh Heavily in Favor of Dismissing the Indictment. Two additional concerns expressed by the Court further support the Indictment s dismissal. The first is the concern about general vagueness: [U]nder the Government s 28 McDonnell, 2016 WL 3461561, at *17 (emphasis added. 10
Case 4:15-cr-00300-BRW Document 74-1 Filed 06/28/16 Page 11 of 12 interpretation, the term official act is not defined with sufficient definiteness that ordinary people can understand what conduct is prohibited, or in a manner that does not encourage arbitrary and discriminatory enforcement. 29 That is precisely the issue here. Concerned citizens petition the government every single day. And responsible public officials tell those citizens every day that they will look into whatever concerns them. 30 Under the government s theories underlying this Indictment, such routine petitioning or lobbying activities in a democracy would satisfy the quo in any bribery case. But no ordinary citizen would be on notice that they were treading perilously close to criminal prosecution. In other words, add a quid in the form of a campaign donation or a permissible gift under state law, and any federal prosecutor would be given the discretionary power to charge crime. As the Supreme Court made clear, this does not and cannot comport with due process. 31 29 Id. at *18 (citing United States v. Skilling, 561 U. S. 358, 402-403 (2010 (internal quotation marks omitted. 30 Id. ( The basic compact underlying representative government assumes that public officials will hear from their constituents and act appropriately on their concerns.... (emphasis added. 31 The Court was explicit on this point: Id. at *18. In addition to being inconsistent with both text and precedent, the Government s expansive interpretation of official act would raise significant constitutional concerns. Section 201 prohibits quid pro quo corruption the exchange of a thing of value for an official act. In the Government s view, nearly anything a public official accepts from a campaign contribution to lunch counts as a quid; and nearly anything a public official does from arranging a meeting to inviting a guest to an event counts as a quo. 11
Case 4:15-cr-00300-BRW Document 74-1 Filed 06/28/16 Page 12 of 12 The Supreme Court also expressed concern that it should be left to the states to regulate the permissible scope of interactions between state officials and their constituents. 32 To make this happen, the Court limited the definition of official act in such a way as to not leave its outer boundaries ambiguous. 33 Characterizing looking into something as an act or decision invites the very ambiguity the Supreme Court cautioned against. CONCLUSION For the reasons set forth above, the Court should dismiss the Indictment. Dated: June 28, 2016 Respectfully submitted, By: /s/ Robert M. Cary Robert M. Cary Alex G. Romain Simon A. Latcovich Thomas L. Harris WILLIAMS & CONNOLLY LLP 725 Twelfth Street, N.W. Washington, DC 20005 Telephone: (202 434-5000 Facsimile: (202 434-5029 rcary@wc.com aromain@wc.com slatcovich@wc.com tharris@wc.com Charles A. Banks (Bar No. 73004 BANKS LAW FIRM PLLC 100 Morgan Keegan Dr., #100 Little Rock, AR 72202 Telephone: (501 280-0100 Facsimile: (501 280-0166 cbanks@bankslawfirm.us Attorneys for Defendant Theodore E. Suhl 32 Id. at *19. 33 Id. 12
Case 4:15-cr-00300-BRW Document 74-2 Filed 06/28/16 Page 1 of 1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS UNITED STATES v. CRIMINAL NO. 4:15-cr-00300-BRW THEODORE E. SUHL [PROPOSED] ORDER Pending is Defendant Theodore Suhl s Motion to Dismiss the Indictment in this matter. Having considered the supporting and opposition papers and exhibits, Defendant s motion is GRANTED. The Indictment is hereby DISMISSED WITH PREJUDICE. IT IS SO ORDERED this day of, 2016. Hon. Billy Roy Wilson UNITED STATES DISTRICT JUDGE