United States District Court, D. Maryland
Richard D. Bennett United States District Judge.
31, 2017, the Grand Jury returned a nine-count Indictment
(ECF No. 16) charging the Defendant Nathaniel T. Oaks
("Defendant" or "Senator Oaks"), at the
time in question a Delegate in the Maryland General Assembly
representing a portion of Baltimore City, with the corrupt
use of his office in a bribery scheme. This initial
Indictment charged three counts of wire fraud under 18 U.S.C.
§ 1343, one count of honest services wire fraud under 18
U.S.C. §§ 1343 and 1346, and five counts of Travel
Act violations under 18 U.S.C. § 1952. (ECF No. 16) It
is specifically alleged that Oaks, now a Senator in the
General Assembly, accepted bribes during the time in question
from "Mike, " a confidential source of the Federal
Bureau of Investigation (TBI") posing as a businessman
from Texas seeking business opportunities in a U.S.
Department of Housing and Urban Development project in
November 15, 2017, the Grand Jury returned a Superseding
Indictment (ECF No. 31) adding a tenth count for obstruction
of justice under 18 U.S.C. § 1512(c)(2). On January 19,
2018, this Court ordered that Count Ten be severed from
Counts One through Nine. (ECF No. 55.) The Superseding
Indictment, like the initial Indictment, includes a
forfeiture count in which the Government seeks forfeiture of
at least $15, 300 allegedly paid to Defendant Oaks
over the course of the briber}' scheme.
now are (a) the Defendant's Motion to Dismiss Count Four
(Honest Services Wire Fraud) (ECF No. 58) and (b) the
Defendant's Motion to Dismiss Counts Five through Nine
(Travel Act Counts) (ECF No. 57). The underlying premise in
both motions is that Oaks' filing of a request with the
Maryland Department of Legislative Services for the drafting
of legislation in the form of a bond bill in September of
2016 was not an official act within the meaning of honest
sendees wire fraud, as charged in Count Four, or the Travel
Act violations, as charged in Counts Five through Nine.
reviewing the parties' submissions, this Court conducted
a hearing on March 16, 2018. The Defendant's arguments
are without merit, as the submission of such a request by a
member of the Maryland General Assembly is an official act.
That act is within the ambit of honest services wire fraud,
the Travel Act, the Maryland bribery statute, and the Supreme
Court's recent opinion in McDonnell v. United
States, 136 S.Ct. 2355 (2016). For the reasons set forth
below, Defendant's Motion to Dismiss Count Four (ECF No.
58) is DENIED, and Defendant's Motion to Dismiss Counts
Five through Nine (ECF No. 57) is also DENIED.
Defendant is charged in a ten-count Superseding Indictment
that was returned by the Grand Jury on November 15, 2017.
(ECF No. 31.) Counts One through Nine stem from an
alleged scheme in which the Defendant agreed to assist a
purported real estate developer identified as "Mike,
" who was actually an undercover FBI agent, in pursuing
a housing development project in Baltimore. Counts One
through Three charge wire fraud, in violation of 18 U.S.C.
§1343. These first three counts allege that the
Defendant made oral and written communications-which
allegedly contained falsehoods-expressing support for
Mike's project to a representative Oaks believed worked
at the United States Department of Housing and Urban
Four charges honest services wire fraud, in violation of 18
U.S.C. §§ 1343 and 1346. The Superseding Indictment
alleges that "[i]t was the purpose of the scheme for
Oaks to secretly use his official position to enrich himself
by accepting cash bribe payments from Mike in exchange for
favorable official action." (ECF No. 31 at 7.)
Specifically, the Superseding Indictment alleges that
"Oaks agreed to use his official position ... to file a
request for bond bill legislation with [the Maryland
Department of Legislative Services ] in exchange for a cash
bribe payment from Mike." (Id.) The Superseding
Indictment further alleges that on September 22, 2016, in
exchange for a $5, 000 cash payment from Mike, the Defendant
"submitted a request, in person, to DLS for the drafting
of legislation in the form of a bond bill for the 2017
Maryland General Assembly Session that would authorize the
issuance of state funds to a company associated with Mike in
the amount of $250, 000 for the 'Multi-Family Housing
Development at Druid Park Lake." (Id.) The
Defendant allegedly received a completed draft bond bill from
the Maryland Department of Legislative Services and forwarded
the draft by email to Mike. (Id. at 7-8.)
Superseding Indictment provides additional factual context
regarding the legislative process in question. A bond bill
"was legislation filed by a member of the General
Assembly to obtain State of Maryland funding for local
capital projects. ... [F]or such funding to be considered by
the General Assembly, it had to be introduced by both a
member of the House of Delegates and a member of the
Senate." (Id. at 6.) The Maryland Department of
Legislative Services ("DLS") is described as
"a Maryland governmental entity . . ., which provided
legal, fiscal, committee, research, reference, auditing,
administrative, and technological support to the members of
the Maryland General Assembly .... These services included
the drafting of legislation for legislators."
Five through Nine charge violations of the Travel Act based
on the Defendant's participation in five mobile phone
calls with the intent to carry on briber}', in violation
of Maryland state law, Md. Code, Criminal Law § 9-201,
and in violation of 18 U.S.C. § 1952(a)(3) and (b)(2).
These Counts incorporate by reference the relevant paragraphs
of the prior counts - e.g., that the Defendant requested,
received, and emailed a draft bond bill - and add that
"Oaks engaged in an arrangement with Mike pursuant to
which Oaks would receive and agreed to receive cash bribe
payments in order to influence the performance of his
official duties." (Id. at 9.)
January 26, 2017, the Defendant submitted three pretrial
motions: (1) Defendant's Motion to Dismiss Count 4
(Honest Services Wire Fraud) (ECF No. 58); (2)
Defendant's Motion to Dismiss Counts 5-9 (Travel Act
Counts) (ECF No. 57); and (3) Defendant's Motion to
Charge the Jury on Entrapment (ECF No. 59). On March 7, 2018,
this Court determined that no witness testimony would be
necessary to consider these three motions. (ECF No.
On March 14, 2018 the Defendant withdrew his Motion to Charge
the Jury on Entrapment. (See ECF Nos. 89, 90.) On
March 16, 2018, this Court heard oral argument on the
Defendant's pending motions to dismiss (ECF Nos. 57, 58).
7(c)(1) of the Federal Rules of Criminal Procedure requires
that an indictment "be a plain, concise and definite
written statement of the essential facts constituting the
offense charged." Under Rule 12(b)(3)(B)(v), a Defendant
may file a motion to dismiss challenging an indictment for
failure to state an offense. The United States Court of
Appeals for the Fourth Circuit has instructed that '[a]n
indictment must contain the elements of the offense charged,
fairly inform a defendant of the charge, and enable the
defendant to plead double jeopardy as a defense in a future
prosecution for the same offense.'" United
States v. Loayza, 107 F.3d 257, 260 (4th Cir. 1997)
(quoting United States v. Daniels, 973 F.2d 272, 274
(4th Cir. 1992)); see also United States v. Pa/in,
874 F.3d 418, 424 (4th Ck. 2017); United States v.
Hooker, 841 F.2d 1225, 1231 (4th Cir. 1988).
reviewing a motion to dismiss an indictment for failure to
state an offense, a district court must accept all factual
allegations in the indictment as true. See Boyce Motor
Lines v. United States, 342 U.S. 337, 343 n.16 (1952),
and the Court should construe the indictment in a
"practical, " rather than "purely technical,
" manner. United States v. Matzkin, 14 F.3d
1014, 1019 (4th Cir. 1994); see United States v.
Terry, 257 F.3d 366, 371 (4th Cir. 2001) (King, J.,
concurring) ("It is elementary that a motion to dismiss
[a count of the] indictment implicates only the legal
sufficiency of its allegations, not the proof offered by the
basic compact underlying representative government assumes
that public officials will hear from their constituents and
act appropriately on their concerns." McDonnell v.
United States, 136 S.Ct. 2355, 2372 (2016); see also
United States v. Mandel, 672 F.Supp. 864, 878 (D. Md.
1987), affd, 862 F.2d 1067 (4th Cir. 1988)
("The people of Maryland, as a matter of natural law,
have and have always had an inalienable right to good
government."). While the compact itself may be
"basic, " the criminal laws aimed at enforcing it
have evolved over the last few decades. Through both judicial
interpretation - often based on constitutional concerns,
see e.g., Id. at 2372-73; McNally v. United
States, 483 U.S. 350, 360 (1987) - and statutory
amendment, the scope of bribery laws has waxed and waned
several targeted statutes specifically outlaw various forms
of "bribery" by federal officials,
see 18 U.S.C. §§ 201-227, 665, the federal
mail and wire fraud statutes, 18 U.S.C. §§ 1341
(mail), 1343 (wire), also criminalize bribery schemes by
state and local officials. In 1909, the
mail fraud statute, the predecessor to today's mail and
wire fraud statutes, proscribed the use of mails to advance
"any scheme or artifice to defraud, or for
obtaining money or property by means of false or fraudulent
pretenses, representations, or promises." § 1341;
see Shilling v. United States, 561 U.S. 358, 399
(2010) (emphasis added). With the identification of two
alternative illicit uses of the mails, the term
"scheme or artifice to defraud" was interpreted by
the Circuit Courts of Appeals to include deprivations of
intangible rights, giving rise to the
"intangible rights" or "honest services"
doctrine that reached both public and private sector
officials. Id. at 400-401 (citing Sbushan v.
United States, 117 F.2d 110 (5th Cir. 1941); see
also United States v. Bohonus, 628 F.2d 1167, 1171 (9th
Cir. 1980); United States v. Procter & Gamble
Co., 47 F.Supp. 676, 678 (D. Mass. 1942)). By 1982,
every Circuit had validated the honest services doctrine.
Shilling, 561 U.S.. at 401 (citing Hurson,
Limiting the Federal Mail Fraud Statute-A
Legislative Approach, 20 Am. Crim. L. Rev. 423, 456
(1983)). Despite the consensus among the
circuits, the honest-services decisions during this time
"were not models of clarity or consistency."
Shilling, 561 U.S. at 405.
breadth of the mail and wire fraud statutes, enhanced by the
honest services doctrine, armed federal prosecutors with
incredible discretion. In 1974, Chief Justice Berger
commented that the mail fraud statute "has traditionally
been used against fraudulent activity as a first line of
defense." United States v. Maze, 414 U.S. 395,
405-06 (1974) (Burger, C.J., dissenting) ("When a
'new' fraud develops-as constantly happens-the mail
fraud statute becomes a stopgap device . . . until
particularized legislation can be developed and passed to
deal directly with the evil."). One commentator
described the mail fraud statute as follows:
To federal prosecutors of white collar crime, the mail fraud
statute is our Stradivarius, our Colt 45, our Louisville
Slugger, our Cuisinart-and our true love. We may flirt with
RICO, show off with 10b-5, and call the conspiracy law
'darling, ' but we always come home to the virtues of
18 U.S.C. § 1341, with its simplicity, adaptability, and
Rakoff, The Federal Mail Fraud Statute (Part I), 18
Duq. L. Rev. 771, 771 (1980). This article responded in part to
the emerging opposition to the "extension" of the
mail and wire fraud statutes to prosecute "official
corruption/' specifically noting the high-profile
prosecutions of former Maryland Governor Marvin
Mandel and United States Seventh Circuit Judge
Otto Kerner, the former the Governor of Illinois.
Id. at 772. It noted that the "crime of
conspiracy 'to defraud' the United States,
promulgated a few years before the mail fraud statute, was
intended from the start to include bribery within its ambit
and has been uniformly so interpreted by the Supreme
Court." Id. at 780 n.46 (citing United
States v. Johnson, 383 U.S. 169, 172 (1966); Haas v.
Henkel, 216 U.S. 462, 479-80 (1910)).
1987, the Supreme Court "stopped the development of the
intangible-rights doctrine in its tracks."
Shilling, at 401 (discussing McNally v. United
States, 483 U.S. 350 (1987)). In McNally v. United
States, 483 U.S. 350 (1987), the Supreme Court held that
the federal mail fraud statute did not proscribe schemes to
defraud citizens of their intangible rights to the
honest services of their representatives. 483 U.S. at
356-361. "Rather than constru[ing] the statute in a
manner that leaves its outer boundaries ambiguous and
involves the Federal Government in setting standards of
disclosure and good government for local and state officials,
" the Supreme Court read the statute "as limited in
scope to the protection of property rights."
Id. at 360 (emphasis added). "If Congress
desires to go further, it must speak more clearly."
that invitation, Congress quickly responded by enacting 18
U.S.C. § 1346 to provide that a "scheme or artifice
to defraud" under § 1341 may include "a scheme
or artifice to deprive another of the intangible right of
honest services." Anti-Drug Abuse Act of 1988 §
7603(a), Pub. L. No. 100-690 (HR 5210), 102 Stat 4181
(codified at 18 U.S.C. § 1346). This provision became
known as the "McNally Amendment" as it was
"intended merely to overturn the McNally
decision. No. other change in the law [was] intended."
134 Cong. Rec. H11108-01 (daily ed. Oct. 21, 1988) (statement
of Rep. ...