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United States v. Verrusio

United States District Court, District of Columbia

April 21, 2017

UNITED STATES OF AMERICA
v.
FRASER VERRUSIO, Defendant.

          MEMORANDUM OPINION

          Beryl A. Howell Chief Judge

         In 2011, the defendant, Fraser Verrusio, the former policy director of the House Transportation Committee, was convicted on three counts relating to his receipt of gifts from Jack Abramoff's lobbying group. Petitioning for a writ of habeas corpus, pursuant to 28 U.S.C. § 2255, or in the alternative, a writ of coram nobis, pursuant to 28 U.S.C. § 1651, the defendant seeks to vacate his convictions. See generally Def.'s Mot. to Vacate, Set Aside, and Correct Sentence Pursuant to 28 U.S.C. § 2255, or in the Alternative, Petition for a Writ of Error Coram Nobis (“Def.'s Mot.”), ECF No. 162. The defendant primarily argues that his convictions cannot be sustained in the wake of the Supreme Court's decision in McDonnell v. United States, 136 S.Ct. 2355 (2016). See Id. at 1-3. For the following reasons, the defendant's petitions are denied.

         I. BACKGROUND

         In 2011, the defendant, a resident of Virginia, id. at 27, was convicted by a jury on three separate counts: (1) conspiracy to receive an illegal gratuity, in violation of 18 U.S.C. § 371; (2) receipt of an illegal gratuity, in violation of 18 U.S.C. § 201(c); and (3) making a false statement, in violation of 18 U.S.C. § 1001(a). Judgment at 1-2, ECF No. 139. As a result of his convictions, the defendant was sentenced by another Judge of this Court to a single day of incarceration on each count to run concurrently. Id. at 3.[1] The defendant was also sentenced to two years supervised release on Counts One and Three, and one year of supervised release on Count Two, also to run concurrently. Id. at 4. The factual background of the defendant's convictions is summarized before turning to an assessment of his two petitions.

         A. United Rentals and the 2003 Trip to the World Series

         In 2003, the defendant worked as the policy director of the Transportation and Infrastructure Committee for the U.S. House of Representatives (“House Transportation Committee”). Trial Tr. (Jan. 28, 2011 Morning) 6:23-7:2, ECF No. 170. In this role, the defendant, among other things, liaised between Congressional members of the House Transportation Committee and lobbyists, Trial Tr. (Jan. 26, 2011 Morning) 68:4-11, ECF No. 168, and worked closely with the chairman of the House Transportation Committee, Representative Don Young of Alaska, id. at 60:8-9. The defendant worked alongside Vivian Curry Moeglin, legislative director for Representative John Boozman of Arkansas, a member of the House Transportation Committee, as well as Trevor Blackann, a legislative assistant to Senator Kit Bond of Missouri, who, at the time, chaired the Senate Subcommittee on Transportation and Infrastructure of the Senate Committee on the Environment and Public Works. Trial Tr. (Jan. 26, 2011 Morning) 69:7-14, ECF No. 168; Trial Tr. (Jan. 28, 2011 Afternoon) 93:20-94:10, ECF No. 149; Trial Tr. (Jan. 31, 2011 Afternoon) 101:23-25, ECF No. 150.

         During his time as policy director, the defendant met Todd Ehrlich, an executive of United Rentals, a construction equipment rental company. Trial Tr. (Feb. 2, 2011 Morning) 5:17-21, 16:2-12 ECF No. 173. The defendant also came to know Todd Boulanger, a former Senate staffer and lobbyist with Greenberg Traurig, as well as James Hirni, another former Senate staffer and lobbyist with Sonnenschein, Nath & Rosenthal. Trial Tr. (Jan. 31, 2011 Afternoon) 32:18-34:13, ECF No. 150; Trial Tr. (Jan. 26, 2011 Morning) 44:2-4, 52:16-18, ECF No. 168.

         United Rentals had a number of legislative priorities in 2003 and hired Hirni and Boulanger to lobby for these priorities in Washington, D.C. Trial Tr. (Jan. 28, 2011 Morning) 6:13, 7:3-6, 60:2-17, 62:1-2, ECF No. 170; Trial Tr. (Jan. 28, 2011 Afternoon) 17:1-5, ECF No. 149. United Rentals wanted language added to the Federal Highway Bill (“FHB”), which was subject to reauthorization in the Fall of 2003, that, among other things, encouraged rental of construction equipment over purchasing and increased the required level of liability insurance for the construction equipment rental industry. Trial Tr. (Jan. 31, 2011 Afternoon) 40:18-41:8, 43:4-9, 44:7-18, 44:19-45:1, ECF No. 150; Trial Tr. (Jan. 28, 2011 Morning) 5:3-9, ECF No. 170, The majority of the work on the FHB in the fall of 2003 was done in the Senate Environment and Public Works Committee, where Blackann was a senior member. Trial Tr. (Jan. 28, 2011 Afternoon) 93:20-94:10, ECF No. 149; Trial Tr. (Jan. 26, 2011 Morning) 69:7- 14, ECF No. 168. Blackann testified that, at the time, he and the defendant anticipated opposition to United Rentals' legislative goals from companies that sold, rather than rented, construction equipment. Trial Tr. (Jan. 28, 2011 Morning) 8:9-18, ECF No. 170. The defendant recommended that United Rentals and its lobbyists pursue an “airmail strategy, ” whereby the defendant, Blackann, and the lobbyists would wait until the bill went into conference committee to insert the desired language in the bill. Id. at 8:22-9:23, 65:1-18. The defendant believed this strategy would increase the likelihood of the provisions being passed. Id. at 9:1-23; Trial Tr. (Jan. 28, 2011 Afternoon) 65:1-18, ECF No. 149.

         Boulanger, Hirni, and Ehrlich together then decided to invite Blackann and the defendant on an overnight trip to New York City to see the first game of the 2003 World Series. Trial Tr. (Jan. 31, 2011 Afternoon) 57:14-18, ECF No. 150. At trial, Boulanger testified that he hoped the World Series trip to New York would influence the defendant to take action that would be favorable to United Rentals in the future. Trial Tr. (Jan. 26, 2011 Morning) 46:6-14, ECF No. 168. Similarly, Hirni testified at trial that the World Series trip was meant to build relationships and grow influence with the staffers. Trial Tr. (Feb. 1, 2011 Afternoon) 141:14-22, ECF No. 151. When asked why the defendant was selected for the trip, both Boulanger and Hirni testified that it was because of his position. Trial Tr. (Jan. 26, 2011 Morning) 59:17-60:5, ECF No. 168; Trial Tr. (Feb. 1, 2011 Afternoon) 147:2-10, ECF No. 151. Boulanger also testified that the defendant had a habit of accepting dinners and meeting with clients. Trial Tr. (Jan. 26, 2011 Morning) 83:1-84:22, ECF No. 168.

         The World Series trip was Saturday, October 18 to Sunday, October 19, 2003. Trial Tr. (Jan. 28, 2011 Afternoon) 59:14-60:9, ECF No. 149. Hirni arranged flights for himself, Blackann, and the defendant from Washington, D.C. to New York City, and arranged for the group to stay at the Bryant Park Hotel, a luxury hotel in midtown Manhattan. Trial Tr. (Jan. 31, 2011 Afternoon) 53:23-54:8, ECF No. 150; Trial Tr. (Feb. 1, 2011 Morning) 156:9-12, ECF No. 172; Trial Tr. (Feb. 2, 2011 Morning) 27:9-12, ECF No. 173. Shortly after arriving at the Bryant Park Hotel, Blackann shared the airmail strategy with Ehrlich. Trial Tr. (Jan. 28, 2011 Morning) 60:7-25, ECF No. 170. Neither Hirni nor the defendant were present for this conversation. Id. at 28:3-17. Ehrlich did not care for this strategy as he wanted something tangible sooner rather than later. Id. at 27:15-19, 60:7-25. Blackann later shared with the defendant that Ehrlich did not want to pursue the “airmail” strategy and the defendant stated that abandoning that strategy was the wrong decision. Id. at 61:5-17.

         After Blackann and Ehrlich finished their meeting, the defendant met Blackann, Hirni, and Ehrlich for dinner at Sparks, a Manhattan steakhouse. Trial Tr. (Feb. 1, 2011 Afternoon) 26:8-10, ECF No. 151. Although several executives from United Rentals planned to attend, Ehrlich was the only executive able to attend the dinner. Id. at 26:8-10, 29:25-30:16. At dinner, all four individuals discussed United Rentals, the desired legislative amendments, and the legislative process. Id. at 40:15-41:9.

         Ehrlich paid for the entire group at the end of the meal and the group departed to attend the World Series. Trial Tr. (Jan. 28, 2011 Afternoon) 55:1-8, ECF No. 149; Trial Tr. (Feb. 1, 2011 Afternoon) 46:10-11, ECF No. 151; Trial Tr. (Feb. 2, 2011 Morning) 81:5-13, ECF No. 173. The tickets to the game were Ehrlich's personal tickets, not paid for by United Rentals. Trial Tr. (Feb. 2, 2011 Morning) 81:20-21, ECF No. 173. When asked, Ehrlich testified that he did not ask the defendant or Blackann to reimburse him for the tickets as he thought it would be “tacky” since he had not paid for them himself. Id. at 81:22-83:3. Ehrlich also testified, however, that it was unlikely that he would have invited the defendant or Blackann to the game if it were not for Boulanger's suggestion to do so. Id. at 26:22-25. After the World Series game, Ehrlich took the group to a strip club named “Privilege.” Trial Tr. (Feb. 1, 2011 Afternoon) 57:18-23, 145:16-21, ECF No. 151. Hirni, Blackann, and the defendant returned to Washington, D.C. the following day on the same flight. Id. at 61:9-13.

         Over the course of the trip, United Rentals, either directly or through their lobbyists, paid for Blackann and the defendant's airfare to and from New York, transportation while in New York, meals, drinks, and hotel costs, as well as their expenses at the strip club and a souvenir baseball jersey and t-shirt. Trial Tr. (Jan. 31, 2011 Afternoon) 58:23-59:1, ECF No. 150. At trial, the parties stipulated that the cost of the defendant's trip to New York was $1, 259.77. Trial Tr. (Jan. 28, 2011 Morning) 70:6-72:13, ECF No. 170.

         B. After the 2003 Trip and Amendments to the FHB

         After the trip, Blackann sent an email to Hirni on October 20, 2003 that Hirni believed was a “cover e-mail” meant to make it appear as though Blackann and the defendant had not gone on the World Series trip. Trial Tr. (Jan. 31, 2011 Afternoon) 93:3-16, ECF No. 150. In the email, Blackann thanked Hirni for the invitation to the game but stated “Sorry neither Fraser nor I could make it but maybe next time.” Id. at 92:22-25. Hirni also stated that he did not have a good feeling after the trip, and that this was not good governance. Id. at 91:3-9, 91:15-17.

         Upon returning to work in Washington, D.C., Blackann worked to add language desired by United Rentals inserted in the Senate version of the Bill. Trial Tr. (Jan. 28, 2011 Morning) 61:1-9, ECF No. 170. Blackann informed the defendant about his plans for accomplishing the amendment insertions. Id. at 61:1-9. Blackann chose to have Senator Craig Thomas insert the amendments into the Bill in order to preserve political capital for Senator Bond. Id. at 63:17- 64:16. Blackann stated that he wanted to pursue the amendments because he thought they represented good policy and were helpful to United Rentals, a constituent. Id. at 64:17-25. Blackann was able to have Senator Thomas insert the desired language in the Senate version of the Bill during the Senate “markup” meeting so that the amendments would be accepted without a vote on each specific amendment. Trial Tr. (Jan. 26, 2011 Morning) 99:7-16, ECF No. 168.

         Shortly after the amendments were inserted in the Senate version of the Bill, there was backlash from opposition, primarily from companies that sell construction equipment as opposed to renting it, as well as small rental firms that could not afford the proposed insurance requirements. Trial Tr. (Jan. 28, 2011 Morning) 72:24-73:7, ECF No. 170. Due to this heated opposition, Blackann stated that he hoped the defendant would not have the language inserted into the House version of the Bill so as to keep the exposure limited. Id. at 95:9-13, 96:5-97:2.

         As the Bill was being worked on in the Senate, the defendant stayed in contact with Boulanger and Hirni, discussing the language of the amendments and the likelihood of successful inclusion in the House. Trial Tr. (Jan. 26, 2011 Morning) 115:14-116:4, ECF No. 168. The defendant met with Boulanger and Hirni in the House Transportation Committee's Conference Room to discuss growing opposition to the amendments, and ways in which that opposition might be overcome. Trial Tr. (Jan. 31, 2011 Afternoon) 99:21-100:13, ECF No. 150; Trial Tr. (Jan. 26, 2011 Morning) 115:14-116:4, ECF No. 168. Among other things, the defendant suggested a letter-writing campaign. Trial Tr. (Jan. 26, 2011 Morning) 116:14-23, ECF No. 168. Hirni testified that it was common to get advice on letter-writing campaigns from leadership or committee staff members in order to know how best to strategize. Trial Tr. (Feb. 1, 2011 Afternoon) 137:21-138:19, ECF No. 151. The defendant also suggested that Hirni and Boulanger meet with rank-and-file members of the House Transportation Committee to have them pressure the Chairman into supporting the amendments. Trial Tr. (Jan. 26, 2011 Morning) 125:7-19, ECF No. 168.

         On October 22, 2003, Hirni shared a white paper outlining United Rentals' legislative agenda with the defendant. Trial Tr. (Jan. 31, 2011 Afternoon) 95:9-18, ECF No. 150. Five days later, the defendant informed Hirni that the white paper would need significant work before anyone could help Hirni with progressing the amendments through the House, and that the defendant was willing to help discuss language. Id. at 95:24-96:8. The defendant did not agree, however, to insert any of the language from the white paper in the House version of the Bill. Trial Tr. (Feb. 1, 2011 Afternoon) 76:4-6, ECF No. 151. The defendant continued to share information with Hirni regarding the House Transportation Committee, including information regarding timing, influential individuals, and the legislative process. Trial Tr. (Jan. 31, 2011 Afternoon) 98:18-24, ECF No. 150.

         During this same period, Hirni was also in contact with Moeglin regarding United Rental's legislative agenda. Id. at 102:2-24. Hirni told Moeglin that the defendant was “good to go” in an email dated January 14, 2004. Trial Tr. (Jan. 25, 2011 Afternoon) 12:16-13:3, ECF No. 148. At trial, Hirni testified that he meant that the defendant would be “helpful with our legislative asks.” Trial Tr. (Jan. 31, 2011 Afternoon) 104:17-20, ECF No. 150.[2] The FHB went to “markup” in the House in March of 2004, Trial Tr. (Jan. 28, 2011 Morning) 94:14-25, ECF No. 170, and the House passed the FHB in late March or early April of 2004, Trial Tr. (Jan. 28, 2011 Morning) 100:20-101:8, ECF No. 170. The Bill then went into the “preconference” stage with House and Senate staffers discussing the language to be included in the final conference report. Id. at 101:6-11. The defendant participated in these meetings when the United Rentals provisions were discussed. Id. at 102:1-16. Blackann testified that he also was a part of approximately a third of these meetings, and only saw the ...


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