Tuesday, June 28, 2016

Defense for Suhl asks judge to dismiss bribery indictment, citing Supreme Court decision in McDonnell case

Posted By on Tue, Jun 28, 2016 at 6:14 PM

With less than two weeks before a jury trial is set to begin on federal bribery charges, defense attorneys for behavioral health care provider Ted Suhl today filed a new motion to throw out the indictment. Their argument is based on a unanimous U.S. Supreme Court decision handed down on Monday which circumscribed federal prosecutors' ability to charge public officials with corruption.

click to enlarge BOB MCDONNELL: The former Virginia governor, a Republican, was let off the hook by the Supreme Court. - WIKIPEDIA
  • BOB MCDONNELL: The former Virginia governor, a Republican, was let off the hook by the Supreme Court.
In that case, prosecutors alleged former Virginia governor Robert McDonnell helped a businessman gain access to state officials and other power players in return for more than $175,000 in loans and gifts. But the high court said that McDonnell's acceptance of lavish gifts, while unseemly, did not necessarily constitute bribery. Merely "setting up a meeting, calling another public official, or hosting an event does not, standing alone, qualify as an ‘official act,’ ” Chief Justice John Roberts wrote, adding that an overly broad definition of what could be considered an "official act" for purposes of bribery could chill routine, innocuous political interactions between public officials and constituents.

Suhl's attorneys hope to convince U.S. District Judge Billy Roy Wilson that the McDonnell decision similarly undermines the prosecution's arguments in this case. A grand jury indicted Suhl in December for giving cash payments to Steven Jones, a former deputy director of the Arkansas Department of Human Services, via two middlemen. Suhl's inpatient and outpatient mental health facilities in East Arkansas depended on DHS contracts for their revenue (in the form of Medicaid payments). Suhl bribed Jones, prosecutors allege, to create a more favorable environment for his businesses in multiple ways, including requesting an expansion of the geographic radius DHS allowed his companies to serve.

But the defense says prosecutors failed to identify "official acts" performed by Jones in return for the cash. "The official acts alleged here are even further removed from the applicable legal standard than those alleged in McDonnell," the motion states:
[T]he current Indictment ... is explicit that the only “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. Accordingly, the Indictment should be dismissed. 
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. 
And later: 
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.” The Indictment here cannot clear this second hurdle. 
Here's the defense's motion to dismiss the indictment.
Suhl's case differs from McDonnell's in many ways, but one that immediately comes to mind is that a public official — Jones — has already admitted to criminal wrongdoing in this case. Steven Jones was sentenced to 30 months in federal prison in February after pleading guilty to conspiracy, wire fraud and bribery charges related to his acceptance of money from Suhl. One of the middlemen in the scheme, Phillip Carter, also pleaded guilty and received 24 months. Both sentences could have been more severe, but both Jones and Carter cooperated with prosecutors in their investigation into Ted Suhl.

Also worth noting: Earlier today, before the defense filed this new motion, Judge Wilson rejected an earlier motion to dismiss a single count of the indictment. Suhl's attorneys argued that the federal bribery statute in question requires alleging $5,000 in transactions in a single one-year period. But prosecutors responded that the bribe amount is vastly larger when one considers "the benefit to the briber" — i.e., Suhl. 

Here's the judge's order denying that motion. Wilson wrote:
The Indictment sets out that Defendant’s businesses have received more than $90 million [in] Medicaid reimbursements from 2007 through 2012. It further alleges that during this period, Defendant was funneling money to the director of ADHS with intent that the director take actions favorable to Defendant’s companies. The Indictment charges that Defendant lobbied the director of ADHS to have Defendant put back on the Child Welfare Agency Review Boards; sought the expansion of the radius of mental health provider sites to the benefit of his businesses; and pushed the head of ADHS to support a bill that would allow his businesses to have no-bid contracts. These allegations, when coupled with alleged back-door payments to the director of ADHS, sufficiently sets out a charge under 18 U.S.C. § 666.

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