MEMORANDUM OPINION
Emmet
G. Sullivan United States District Court Judge
This
case stems from the government's allegations that David
Bowser, who was then Chief of Staff for former Representative
Paul Broun in the United States House of Representatives,
unlawfully used congressional funds to pay a consultant for
campaign services. Following a four-week trial, the jury
returned guilty verdicts on five counts. Pending before the
Court are the following motions: (1) Mr. Bowser's motion
for a judgment of acquittal following the close of the
government's evidence; (2) Mr. Bowser's motion for a
judgment of acquittal at the close of all evidence; Mr.
Bowser's motion for a judgment of acquittal
notwithstanding the verdict; and (4) the government's
motion to dismiss Count Two of the Indictment. Based on the
evidence in the record, the applicable law, and the
parties' arguments, and for the reasons explained below,
the Court GRANTS IN PART AND DENIES IN PART
Mr. Bowser's motions and GRANTS the
government's motion.
I.
BACKGROUND
On
April 6, 2016, David Bowser was charged with one count of
obstruction of proceedings in violation of 18 U.S.C.
§§ 1505 (Count One); one count of theft of
government property in violation of 18 U.S.C. § 641
(Count Two); one count of concealment of material facts in
violation of 18 U.S.C. §§ 1001(a)(1) and (c)(2)
(Count Three); and five counts of making false statements in
violation of 18 U.S.C. §§ 1001(a)(2) and (c)(2)
(Counts Four through Eight). See generally Indict.,
ECF No. 1.[1] These charges were based on allegations
that Mr. Bowser, who was the Chief of Staff to Representative
Paul Broun from 2008 until 2015, used his position to
misappropriate federal funds to pay a campaign consultant,
Brett O'Donnell, and then obstructed the Office of
Congressional Ethics' investigation of that
misappropriation.
Jury
selection commenced on February 23, 2018. The government
completed its case-in-chief on March 13, 2018. Pursuant to
Federal Rule of Criminal Procedure 29, Mr. Bowser orally
moved for a judgment of acquittal as to Counts One through
Seven at the close of the government's case. Mr. Bowser
subsequently filed a written motion, see ECF No. 72,
which was fully briefed by March 18, 2018, see ECF
Nos. 82 and 85. The Court reserved judgment on the motion,
and Mr. Bowser presented his defense. The defense completed
its case-in-chief on March 19, 2018. The government did not
present rebuttal evidence. Mr. Bowser orally renewed his
motion for a judgment of acquittal and filed a second written
motion. See ECF No. 86. The Court reserved judgment
on that motion until after the jury's verdict.
On
March 23, 2018, the jury returned guilty verdicts on Counts
One, Three, Four, Seven, and Eight. See Jury
Verdict, ECF No. 100. The jury acquitted Mr. Bowser on Counts
Five and Six, and it was unable to reach a unanimous verdict
on Count Two. Id.; see also Jury Note, ECF
No. 94. The Court received the jury's verdict as to the
unanimous counts and instructed the jury to continue
deliberations as to Count Two. After continued deliberations,
the jury informed the Court that it was unable to reach a
verdict with respect to Count Two. See Jury Note,
ECF No. 96. The Court again instructed the jury to continue
deliberating. See 3/23/18 Trial Tr., ECF No. 116 at
8-12 (providing anti-deadlock instruction pursuant to
United States v. Thomas, 449 F.2d 1171 (D.C. Cir.
1971)). After further deliberations, the jury informed the
Court that it was still “hopelessly deadlocked”
as to Count Two. See Jury Note, ECF No. 98. At that
point, the government stated that “it would be
appropriate to declare a mistrial.” Id. at 12.
The Court agreed and, over Mr. Bowser's objection,
determined that it was “manifestly necessary” to
declare a mistrial as the Count Two. Id. at 12-13;
see also Minute Order of March 25, 2018 (explaining
that it was necessary to declare a mistrial given the
“jury's continued inability to reach a
verdict” and the “significant risk that a verdict
may result from pressures inherent in the situation rather
than the considered judgment of all the jurors”).
On
April 13, 2018, Mr. Bowser filed a motion for a judgment of
acquittal notwithstanding the verdict as to Counts One, Two,
Three, Four, and Seven. See ECF No. 117. On that
same day, the government filed a notice of its intention not
to seek retrial on Count Two and asked that Count Two be
dismissed without prejudice pursuant to Federal Rule of Civil
Procedure 48(a). See ECF Nos. 118 and 119. Mr.
Bowser requested the Court to reserve its ruling on the
government's request to dismiss Count Two until after it
had ruled on his motions for acquittal. See ECF No.
120. The Court subsequently ordered the government to show
cause why Count Two should not be dismissed with prejudice in
view of the government's decision not to seek retrial on
that count. See Minute Order of June 15, 2018
(citing United States v. Karake, No. 2-256, 2007 WL
8045732, at *3 (D.D.C. Feb. 7, 2007)). On June 20, 2018, in
response to the Court's order to show cause, the
government stated that it had no objection to dismissing
Count Two with prejudice. See ECF No. 124. Mr.
Bowser nonetheless maintains that a judgment of acquittal is
appropriate. See ECF No. 125.
In his
motions, Mr. Bowser argues that Counts One, Two, Three, Four
and Seven fail for the following reasons:
• Count One, obstruction of proceedings, fails because
the Office of Congressional Ethics does not fall within the
scope of 18 U.S.C. § 1505, which only applies to the
“House” or a “committee” of the
House.
• Count Two, theft of government funds, is
non-justiciable pursuant to United States v.
Rostenkowski, 59 F.3d 1291 (D.C. Cir. 1995).
• Count Three, concealment of a material fact, fails
because there was no legal duty for Mr. Bowser to disclose
any information to the Office of Congressional Ethics, as
cooperation with that office's investigations is
voluntary.
• Counts Four and Seven, making a false statement, fail
because they are non-justiciable like Count Two and for the
additional reason that the evidence was insufficient to
establish that Mr. Bowser had the requisite mens
rea.
II.
LEGAL STANDARD
A.
Motion for a Judgment of Acquittal at the Close of
Evidence
Federal
Rule of Criminal Procedure 29(a) provides that,
“[a]fter the government closes its evidence or after
the close of all the evidence, the court on the
defendant's motion must enter a judgment of acquittal of
any offense for which the evidence is insufficient to sustain
a conviction.” In considering a Rule 29 motion,
“‘the trial court must view the evidence in the
light most favorable to the Government giving full play to
the right of the jury to determine credibility, weigh
evidence and draw justifiable inferences of fact.'”
United States v. Treadwell, 760 F.2d 327, 333 (D.C.
Cir. 1985) (quoting United States v. Davis, 562 F.2d
681, 683 (D.C. Cir. 1977)). In other words, “the Court
must decide whether a reasonable jury could conclude that the
government met its burden of proving each element of the
offense beyond a reasonable doubt.” United States
v. Quinn, 403 F.Supp.2d 57, 60 (D.D.C. 2005). “The
court may reserve decision on the motion, proceed with the
trial (where the motion is made before the close of all the
evidence), submit the case to the jury, and decide the motion
either before the jury returns a verdict or after it returns
a verdict of guilty or is discharged without having returned
a verdict. If the court reserves decision, it must decide the
motion on the basis of the evidence at the time the ruling
was reserved.” Fed. R. Crim. P. 29(b).
B.
Motion for a Judgement of Acquittal After the
Verdict
Under
Rule 29(c), a defendant may renew a motion for a judgment of
acquittal within fourteen days after a guilty verdict.
Because a court owes “tremendous deference to a jury
verdict, ” United States v. Long, 905 F.2d
1572, 1576 (D.C. Cir. 1990), the court “must view the
evidence in the light most favorable to the verdict, and must
presume that the jury has properly carried out its functions
of evaluating the credibility of witnesses, finding the
facts, and drawing justifiable inferences, ” United
States v. Campbell, 702 F.2d 262, 264 (D.C. Cir. 1983).
A conviction in a criminal trial should be upheld if
“any rational trier of fact could have found the
essential elements of the crime beyond a reasonable
doubt.” United States v. Wahl, 290 F.3d 370,
375 (D.C. Cir. 2002) (quoting Jackson v. Virginia,
443 U.S. 307, 319 (1979)). The standard for “clear[ing]
the bar for [a] sufficiency of evidence challenge” is
“very high, ” and the evidence to support a
conviction does “not need to be overwhelming.”
United States v. Pasha, 797 F.3d 1122, 1135 n.9
(D.C. Cir. 2015). “Thus a judgment of acquittal is
appropriate only when there is no
evidence upon which a reasonable juror might fairly conclude
guilt beyond a reasonable doubt.” United States v.
Weisz, 718 F.2d 413, 438 (D.C. Cir. 1983) (emphasis
added).
III.
ANALYSIS
A.
Count One: Obstruction of Proceedings
Count
One charges Mr. Bowser with obstruction of proceedings in
violation of 18 U.S.C. § 1505, which prohibits an
individual from corruptly obstructing or endeavoring to
obstruct “the due and proper exercise of the power of
inquiry . . . by either House, or any committee of either
House or any joint committee of the Congress.” Indict.,
ECF No. 1 ¶¶ 64-80. Specifically, the government
charged Mr. Bowser with obstructing an official investigation
that was conducted by the Office of Congressional Ethics
(“OCE”) regarding the use of federal funds by
Congressman Broun's office to pay for consultant Brett
O'Donnell's services to Congressman Broun's House
reelection and Senate campaigns. Id. ¶ 65. For
Mr. Bowser to have been found guilty of violating section
1505, the government was required to prove the following
elements beyond a reasonable doubt:
(1) that, from in or about March 2014 through in or about
June 2014, there was an inquiry or investigation being had by
the U.S. House of Representatives or any committee of the
House;
(2) that Mr. Bowser knew that the inquiry or investigation
was being had by the U.S. House of Representatives or any
committee of the House; and
(3) that Mr. Bowser did corruptly endeavor to influence,
obstruct or impede the due and proper exercise of the power
of inquiry under which the investigation or inquiry was being
had by the U.S. House of Representatives or any committee of
the House.
See Jury Instructions, ECF No. 87 at 11; see
also 18 U.S.C. § 1505 (explaining that an
individual may be found guilty of violating the section if he
“corruptly . . . influences, obstructs, or impedes or
endeavors to influence, obstruct, or impede . . . the due and
proper exercise of the power of inquiry under which any
inquiry or investigation is being had by either House, or any
committee of either House or any joint committee of the
Congress”). Mr. Bowser argues that he could not have
obstructed a proceeding within the meaning of section 1505
because the OCE is not the “House” or “any
committee” the House. Def.'s Mot. for J. of
Acquittal (“Def.'s MJOA”), ECF No. 72 at 1.
The
issue here is one of pure statutory interpretation: does the
phrase “House, or any committee of either House or any
joint committee of the Congress” as used in section
1505 include the OCE? The first step “‘in
interpreting a statute is to determine whether the language
at issue has a plain and unambiguous meaning with regard to
the particular dispute in the case.'” United
States v. Wilson, 290 F.3d 347, 352 (D.C. Cir. 2002)
(quoting Robinson v. Shell Oil Co., 519 U.S. 337,
340 (1997)). In determining whether a statutory term is plain
or ambiguous, the court examines “the language itself,
the specific context in which that language is used, and the
broader context of the statute as a whole.”
Id. In so doing, “the court must avoid an
interpretation that undermines congressional purpose
considered as a whole when alternative interpretations
consistent with the legislative purpose are available.”
United States v. Braxtonbrown-Smith, 278
F.3d 1348, 1352 (D.C. Cir. 2002).
If,
after considering “everything from which aid can be
derived, ” a court “can make no more than a guess
as to what Congress intended, ” then a court should
apply the rule of lenity. United States v.
Muscarello, 524 U.S. 125, 138-39 (1998); see also
United States v. Moore, 619 F.2d 1029 (D.C. Cir. 1979)
(explaining that criminal statutes “are to be strictly
construed” and “uncertainty regarding their ambit
is to be resolved in favor of lenity”). The rule of
lenity counsels in favor of reading ambiguous criminal
statutes “to ensure both that there is fair warning of
the boundaries of criminal conduct and that legislatures, not
courts, define criminal liability.” Crandon v.
United States, 494 U.S. 152, 158 (1990); see also
United States v. Poindexter, 951 F.2d 369, 378 (D.C.
Cir. 1991) (“a penal statute must define the criminal
offense with sufficient definiteness that ordinary people can
understand what conduct it prohibits, and do so in a manner
that does not invite arbitrary and discriminatory enforcement
by which policemen, prosecutors, and juries . . . pursue
their personal predilections”). Notably, “[t]he
simple existence of some statutory ambiguity . . . is not
sufficient to warrant application of that rule, for most
statutes are ambiguous to some degree.”
Muscarello, 524 U.S. at 138. Rather, to invoke the
rule of lenity, the court “must conclude that there is
a grievous ambiguity or uncertainty in the statute.”
Id. at 138-39 (citation and internal quotation marks
omitted).
Whether
an OCE investigation falls within the scope of 18 U.S.C.
§ 1505 appears to be a matter of first impression. The
Court finds that a plain-text reading of the statute compels
the conclusion that the OCE does not fall within the scope of
the statute. Section 1505 prohibits an individual from
corruptly obstructing or endeavoring to obstruct “the
due and proper exercise of the power of inquiry . . . by
either House, or any committee of either House or
any joint committee of the Congress.” The
government relies on House Resolution 895 to argue that the
OCE is “in the House” and therefore subject to
section 1505. Gov't Opp'n to Def.'s Mot. for J.
of Acquittal (“Gov't MJOA Opp'n”), ECF
No. 82 at 6. The relevant provision of House Resolution 895
reads as follows:
For the purpose of assisting the House in carrying out its
responsibilities under article I, section 5, clause 2 of the
Constitution (commonly referred to as the “Discipline
Clause”), there is established in the House an
independent office to be known as the Office of Congressional
Ethics.
H. Res. 895 § 1(a) (emphasis added). The report
published by the Special Task Force on Ethics Enforcement in
the House of Representatives - which was created in January
2007 by House Speaker Nancy Pelosi and then Minority Leader
John Boehner to determine whether the House should create an
“outside” ethics enforcement entity - uses
similar language in describing the OCE, noting that the OCE
was designed to be “an independent office of the
House of Representatives.” See Rep. of
the Democratic Members of the Special Task Force on Ethics
Enforcement (“Task Force Rep.”), 110th Cong., 1st
sess., H. Prt. 110-1 at 6 (emphasis added); see also
Id. (recommending that the OCE be “established as
an independent office within the
House of Representatives”) (emphasis
added). Indeed, the Task Force considered and expressly
rejected the idea of creating the OCE as an
“outside” entity that would be “separate
from the House.” Id. at 7. Instead, the Task
Force concluded that establishing the OCE as “an office
within the Legislative Branch, ” much like independent
offices such as “the Office of the Inspector General or
the Office of the Chief Administrative Officer, ” made
the most sense from both a constitutional and practical
perspective. Id.
The
government also argues that the evidence at trial established
that the OCE is “part of the House in all meaningful
ways.” Gov't MJOA Opp'n, ECF No. 82 at 7. For
example, at trial, the government introduced the testimony of
Bryson Morgan, a lawyer who served as investigative counsel
for the OCE between September 2013 and July 2015.
See 3/8/18 p.m. Trial Tr., ECF No. 110 at 47-49. Mr.
Morgan testified that the OCE is designed to assist the House
in carrying out its constitutional obligation to punish its
own members, id. at 50; the OCE's governing
board is composed of individuals appointed by the Speaker of
the House and the House Minority Leader, id.; the
OCE board reports to the House Committee on Ethics,
id. at 53, 55, 65-68; the OCE staff are House
employees, id. at 56-57; the OCE's investigative
authority “is quite broad” and includes
investigations into alleged violations “by a member of
the House, employee of the House, officer of the House in the
conduct of their official duties, id. at 57; and the
OCE's authority to promulgate its own rules comes from
the House, 3/13/18 a.m. Trial Tr. at 93.[2]
The
government's arguments on this point are not persuasive.
Although the government is correct that the OCE was created
to operate within the House, it is not the
“House” itself. Article 1, section 2 of the
Constitution makes clear that the House “shall be
composed of Members chosen every second Year by the People of
the several States.” The OCE is indisputably not
composed of “members elected by the people, ” and
therefore it cannot be “the House” as defined by
the Constitution. To the contrary, a member of Congress is
expressly ineligible to be on the board of the OCE.
See H. Res. 895 § 1(b)(4)(B)(i)(V). Moreover, a
member of the OCE board is not “considered to be an
officer or employee of the House.” Id. §
1(b)(7).
Nor is
the OCE a “committee of either House or any joint
committee of the Congress” within the meaning of
section 1505. Rule X of the Rules of the House of
Representatives establishes a number of standing committees
and sets forth their jurisdiction. See Rules of the
House of Representatives, available at
http://clerk.house.gov/legislative/house-rules.pdf (last
visited July 5, 2018). Although the House Committee on Ethics
is established through those Rules as having jurisdiction
over matters covered by the Code of Official Conduct,
see Rule X § 1(g), the OCE is not established
as a separate committee.
Indeed,
the OCE was designed to “advise” the Committee on
Ethics regarding purported ethical violations, but it was
never intended to supplant the work of that committee. Task
Force Rep. at 10 (further explaining that the OCE would
“enhance and supplement the House ethics
process”). Moreover, at trial, Mr. Morgan squarely
testified that the OCE is not a “committee” or a
“joint committee”:
Q: [T]he OCE is not a committee of the House?
A. That is correct.
Q. Okay. And it is not a joint committee of the Congress?
A. Correct.
3/12/18 p.m. Trial Tr., ECF No. 111 at 126. Thus, there is no
evidence in the record to support the conclusion that the OCE
is a committee or a joint committee of Congress.
The
government strains to analogize the OCE to a congressional
subcommittee that has been established by a House committee
to conduct a specific investigation. Gov't MJOA
Opp'n, ECF No. 82 at 8 n.6. The government posits that
the OCE serves “as an extension of the House Ethics
Committee” by conducting “preliminary
investigations” of matters that are then referred to
the Ethics Committee. Id.
To be
sure, if the OCE were, in fact, a subcommittee, it would
likely fall into the scope of section 1505. The Fifth
Circuit's decision in United States v. Rainey,
757 F.3d 234 (5th Cir. 2014), is instructive on this point.
In that case, the defendant moved to dismiss a section 1505
charge arguing, inter alia, that the section did not
apply to investigations being conducted by subcommittees.
Id. at 238. In support of his contention that the
term “committee” in section 1505 excludes
“subcommittees, ” the defendant argued that the
court should look to the “technical” reading of
the statute because it operates in the “congressional
context.” Id. at 241-42. Because the term
“committee” in the congressional context meant
“a group of legislators, formally created by and
reporting to the House on particular matters, in accordance
with the Rules of the House, ” the defendant argued
that a subcommittee could not fall within that definition
because it only “reports to the committee of which it
is a part and not the entire House.” Id. at
242.
The
district court granted the defendant's motion to dismiss
the section 1505 count. United States v. Rainey, 946
F.Supp.2d 518, 537-42 (E.D. La. 2013). According to the
district court, the “crux of the issue” presented
by the defendant's motion was “whether the word
‘committee' in section 1505 should be read in its
generic sense or should be understood in its more technical
sense, as the term is used in the United States
Congress.” Id. at 541. As the district court
explained, the “generic connotation” of the word
committee would encompass subcommittees, but committees and
subcommittees “have distinct meanings” if defined
in the “narrow congressional sense.” Id.
at 541-42. Given these competing interpretations, the
district court found that section 1505 was
“ambiguous” and therefore invoked the rule of
lenity to dismiss the count. Id. at 542.
On
appeal, the Fifth Circuit reversed, holding that under the
plain meaning of section 1505, a congressional subcommittee
is “any committee of either House.” 757 F.3d 234,
236. In so doing, the Fifth Circuit rejected the
defendant's narrow reading of section 1505, explaining
that nothing in the statute “reflect[ed] congressional
intention to import a technical meaning to the phrase
‘any committee.'” Id. at 242. For
example, the Court noted that “[s]ection 1505 does not
prohibit obstructing any committee that ‘reports
to either House,' . . . but instead protects
‘any committee of either House.'”
Id. Moreover, although the defendant relied on
internal House rules to support his proposed definition of
“committee, ” the defendant nowhere explained
“why the phrase ‘of either House'
cross-references Congress' internal regulations into
section 1505.” Id. Rather, according to the
Fifth Circuit, the plain text of section 1505 suggested that
Congress intended a broader definition:
If Congress intended “committee” as a term of
art, which under [the defendant]'s proposed
interpretation excludes other committee types, “a
committee of either House” would perfectly define the
class intended. The modifier “any, ...