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United States v. Bowser

United States District Court, District of Columbia

July 17, 2018

UNITED STATES OF AMERICA,
v.
DAVID G. BOWSER, Defendant.

          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, ...

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