United States v. Fraser Verrusio , 762 F.3d 1 ( 2014 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 12, 2013 Decided August 12, 2014
No. 11-3080
UNITED STATES OF AMERICA,
APPELLEE
v.
FRASER VERRUSIO,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:09-cr-00064-1)
Richard P. Sobiecki argued the cause for appellant. With
him on the briefs were A.J. Kramer, Federal Public Defender,
Rosanna M. Taormina, Assistant Federal Public Defender, and
Vernon A.A. Cassin III.
Kirby A. Heller, Attorney, U.S. Department of Justice,
argued the cause for appellee. With her on the brief were Lanny
A. Breuer, then Assistant Attorney General, and John D.
Buretta, then Deputy Assistant Attorney General. Michael A.
Rotker, Attorney, U.S. Department of Justice, entered an appearance.
Kerry W. Kircher, General Counsel, U.S. House of
Representatives, William Pittard, Deputy General Counsel,
Christine M. Davenport, Senior Assistant Counsel, and Todd B.
2
Tatelman, Mary Beth Walker, and Eleni M. Roumel, Assistant
Counsel, were on the brief for amicus curiae Bipartisan Legal
Advisory Group of the United States House of Representatives
in support of appellee.
Before: GARLAND, Chief Judge, and ROGERS and
KAVANAUGH, Circuit Judges.
Opinion for the Court filed by Chief Judge GARLAND.
GARLAND, Chief Judge: Fraser Verrusio, the former policy
director of the House Transportation Committee, was convicted
on three counts relating to his receipt of illegal gratuities from
Jack Abramoff’s lobbying group. On appeal, Verrusio argues
that his indictment omitted an essential element of the charges
against him, that the evidence at trial was insufficient to sustain
his convictions, and that the district court erred in excluding a
defense exhibit and quashing a defense subpoena. For the
reasons set forth below, we affirm the judgment of the district
court.
I
Verrusio’s convictions arose out of his work as policy
director for the Committee on Transportation and Infrastructure
of the U.S. House of Representatives. As policy director, he
advised Chairman Don Young, as well as the Committee as a
whole, regarding legislative strategies and policy. See, e.g.,
Supp. App. 22 (Blackann Test.); id. at 46 (Harless Test.).1 The
House Transportation Committee had jurisdiction over
legislation authorizing federal surface transportation funding,
which required renewal every six years. Because the federal
1
All citations to Supp. App. refer to the Government’s
Supplemental Appendix.
3
highway act in force in 2003 -- known as the Transportation
Equity Act for the Twenty-First Century (TEA-21) -- was set to
lapse at the end of that year, the Committee was especially
focused on enacting the next federal highway bill.
A
Companies and their lobbyists were also focused on the new
highway bill. One of those companies was United Rentals, a
nationwide construction equipment company. United Rentals
hired lobbyists from Jack Abramoff’s group at the Greenberg
Traurig law firm to advance its legislative agenda.2 The
lobbyists were Todd Boulanger and James Hirni.3 Todd Ehrlich
was their primary contact at United Rentals.
Because its business was renting construction equipment,
United Rentals wanted language in the federal highway bill that
would provide incentives for state transportation departments to
contract with builders that rented rather than bought such
equipment. It also wanted language that would require liability
insurance at a level that few companies other than United
Rentals had. In addition, it wanted language encouraging the
use of “intelligent” transportation systems like the ones United
Rentals had to offer. App. 187 (Boulanger Test.). Together,
Boulanger, Hirni, and Ehrlich devised a plan to insert three
2
For cases describing the FBI’s “corruption investigation into the
activities of former lobbyist Jack Abramoff,” Citizens for
Responsibility and Ethics in Wash. v. U.S. Dep’t of Justice, 746 F.3d
1082, 1087 (D.C. Cir. 2014), see id.; United States v. Ring, 706 F.3d
460 (D.C. Cir. 2013); United States v. Safavian, 649 F.3d 688 (D.C.
Cir. 2011).
3
Hirni worked for another law firm from February 2003 through
December 2003. He then moved to Greenberg Traurig.
4
amendments into the highway bill, all of which were intended to
give United Rentals a competitive advantage. Id. Boulanger,
Hirni, and Ehrlich all testified at Verrusio’s trial.
So, too, did Trevor Blackann. In 2003, Blackann was a
legislative assistant to Senator Kit Bond, who, at the time,
chaired the Subcommittee on Transportation and Infrastructure
of the Senate Committee on the Environment and Public Works.
The Subcommittee had primary responsibility for drafting the
Senate version of the new federal highway bill. As a result,
Blackann was in a position to be helpful in adding United
Rentals’ desired amendments to the bill. See id. at 191, 196-97
(Boulanger Test.).
Boulanger and Hirni discussed United Rentals’ “package of
proposals” for legislation with Blackann. App. 220 (Blackann
Test.). That discussion included details of the three specific
amendments the company wanted. According to Blackann, the
amendments were aimed at “providing preferential treatment in
federal government contracting for renting or leasing equipment
as opposed to purchasing equipment”; a “minimum insurance
requirement”; and a “work zone safety piece,” including
intelligent transportation systems. Id.
After Blackann discussed United Rentals’ desired
legislative package with lobbyists Boulanger and Hirni, he then
discussed it with Verrusio. He did so, he testified, because he
knew from the lobbyists “that they were also working with Mr.
Verrusio on the same package of amendments.” Id. Blackann
said that he and Verrusio anticipated opposition to United
Rentals’ desired amendments from companies that sold
construction equipment, and that they “discussed the idea of
waiting till the last possible minute legislatively to insert the
provisions.” Id. at 221. Blackann termed this the “airmail
strategy.” Id. According to Blackann, Verrusio was adamant
5
that this was the route that United Rentals should take. Id.
Blackann advised lobbyists Boulanger and Hirni that he and
Verrusio “were both in support of [the airmail] strategy.” Id.
In October 2003, after the above-described discussions had
taken place, United Rentals’ Ehrlich told lobbyist Boulanger that
he had tickets to the first game of the 2003 World Series, and he
asked “if there were any government officials that [United
Rentals] would be interested in taking that could be helpful” in
advancing its legislative agenda. App. 188 (Boulanger Test.).
Ehrlich and Boulanger, in conjunction with Hirni, decided to
invite Blackann and Verrusio. According to Boulanger, they
decided to invite them because “they were in positions to be
helpful . . . [s]pecifically” with “[t]he United Rentals’
amendments that we were seeking to include in the highway
bill.” Supp. App. 19-20 (Boulanger Test.). Boulanger knew that
Verrusio “was close to the chairman” of the House
Transportation Committee, and he hoped “to influence”
Verrusio “to do some things for our clients.” App. 188
(Boulanger Test.); Supp. App. 21 (same). At trial, Hirni
similarly admitted that he had used the “tickets in [an] attempt
to influence the Congressional staff for legislation.” Supp. App.
85.
As planned, Hirni invited Blackann and Verrusio to the
World Series game and made clear that United Rentals would
cover the costs. App. 251-52 (Hirni Test.). Both men accepted
the invitation. Id. at 250-51. Hirni and Blackann flew to New
York together and met Ehrlich there. Over drinks, Blackann
described the airmail strategy that he, Verrusio, and the two
lobbyists had agreed was “the best course of action.” Supp.
App. 26 (Blackann Test.). Shortly thereafter, Verrusio joined
them for dinner. According to Hirni, the four men “talked a lot
about United Rentals” and “got into a conversation about
concepts and ideas United Rentals had for federal legislation.”
6
Id. at 64 (Hirni Test.). Verrusio was “the senior guy at the
table,” Blackann testified, and was “leading the conversation.”
Id. at 27. Verrusio “walked them through” the airmail strategy,
indicating that it had “the best chance for ultimate success.” Id.
Ehrlich paid for the dinner and drinks. Id. at 65-66 (Hirni Test.).
On the way to Yankee Stadium, the chauffeured car
carrying the four men stopped at a convenience store, where
Hirni bought several small bottles of liquor for the group. The
men then went on to the game. On their way out of the stadium,
Verrusio signaled to Hirni that he and Blackann wanted souvenir
jerseys. Hirni paid for them with his corporate credit card. Id.
at 27, 29 (Blackann Test.); id. at 70 (Hirni Test.).
After leaving the stadium, the group went to a strip club
called Privilege. Hirni paid the cover charge and the cost of
drinks, while Ehrlich paid for several lap dances. Hirni also
bought Verrusio and Blackann t-shirts from the club. When the
group left, they stopped for pizza before returning to their hotel.
The next morning, Hirni paid the hotel expenses, and Verrusio,
Blackann, and Hirni took a car to the airport and flew to
Washington, D.C. Id. at 71-74, 76-77 (Hirni Test.); see App.
225 (stipulated facts).
At trial, the parties stipulated to the value of what Verrusio
received during the New York trip: The round-trip plane ticket
cost $228.50; his hotel and room service costs were $301.27; the
face value of the World Series ticket was $110; the World Series
jersey cost $130; and Verrusio’s pro rata share of the costs for
other transportation, dinner, drinks, and the strip club was $490.
The total cost of Verrusio’s trip, paid by United Rentals, was
$1,259.77. See App. 225; Verrusio Br. 53-54.
Three days after the trip, Hirni forwarded Verrusio an email
from Boulanger that “listed a series of legislative items and
7
some legislative text that United Rentals was now pushing,” and
asked whether Verrusio had time to discuss it. Supp. App. 79-
80 (Hirni Test.). Verrusio responded that the language “needs
a lot more work for anyone to be able to help with progress.”
App. 262-63 (Hirni Test.).
Because the Senate moved more quickly on the federal
highway bill than the House, Blackann began working on United
Rentals’ agenda before Verrusio did. Blackann notified
Verrusio that his office was not going to follow the airmail
strategy of waiting until the last moment, but was instead going
“to actually work to get something in the Senate version of the
bill.” Supp. App. 34 (Blackann Test.). Verrusio then gave
Blackann a “dressing-down,” “saying why don’t you just stick
with the plan,” and warning that “we’re going to get killed, you
know about all the opposition . . . don’t do it.” Id. Nonetheless,
United Rentals’ lobbyists succeeded in getting all three of its
desired amendments into the bill coming out of the Senate
Committee. According to Boulanger, Blackann “was integral”
to achieving that result. App. 198. “[H]e basically did a lot of
the heavy lifting behind the scenes, in getting objections taken
care of from other members of the committee and the staff that
worked on that committee.” Id.
As the bill worked its way through the Senate, Hirni kept
Verrusio “in the loop.” App. 265 (Hirni Test.). Verrusio in turn
helped Hirni understand “the likelihood of the Senate language
working in the House” and “when the House was going to act.”
Id. Verrusio also suggested that United Rentals “get elected
members on [the House Transportation Committee] to weigh in
with the chairman in support of the provisions that we had
included in the Senate bill.” Supp. App. 8 (Boulanger Test.).
Hirni identified Representative John Boozman as someone
whose support United Rentals should cultivate. He emailed one
8
of Boozman’s staff members, Vivian Moeglein, to say that he
had “spoken to [Verrusio] and he is good to go.” App. 413
(Hirni email to Moeglein). According to Hirni, “good to go”
meant that Verrusio was “going to be helpful with [United
Rentals’] legislative asks.” Id. at 271 (Hirni Test.). Hirni also
said that he was “resending [Verrusio] the language in the
Senate bill, with changes which would represent the 100%
victory for [United Rentals].” Id. at 413 (Hirni email to
Moeglein). Verrusio “asked us,” Hirni said, “to give him the
language plus what we would want in the perfect world.” Id.
As the House version of the federal highway bill advanced,
Boulanger asked Verrusio for updates. On January 20, 2004,
Verrusio emailed Boulanger that he was “[s]till hard at it.
Dissenting views still loom with some in leadership. Stay
tuned.” Supp. App. 13 (Boulanger Test.). Boulanger then
emailed Verrusio to ask, “[i]n your gut, what are the odds?,”
noting that “[t]his seems like a total mess.” Id. at 13-14.
Verrusio responded: “Far from a total mess. No question that
there are issues, but we still feel good.” Id. at 14.
Verrusio’s optimism proved misguided. Opposition to
United Rentals’ amendments remained substantial. Blackann
advised Boulanger and Hirni not to continue to pursue them in
the House version of the bill because “it would only make [the
opposition] more upset.” Id. Since the language was in the
Senate version, Blackann hoped to prevail at the Senate/House
conference. He testified that Verrusio was at the
“preconference” meeting of Senate and House staff in which
Blackann, as Senate designee, presented the United Rentals
provisions to the House. Id. at 36-37 (Blackann Test.). But the
opposition ultimately proved too strong, and United Rentals
eventually told its lobbyists that it was no longer interested in
pursuing the amendments. They did not make it into the final
law. Id. at 16 (Boulanger Test.).
9
B
Each year, congressional officials are required to disclose
detailed information concerning their financial holdings and
transactions, as well as information concerning income, gifts,
and reimbursements from private sources. They must do so on
a Financial Disclosure Statement, which asks employees a series
of questions. If they answer “yes” to any of those questions,
they must attach additional forms disclosing particular types of
information. The form states that it “will be reviewed by the
Committee on Standards of Official Conduct or its designee”;
requires the reporting individual to certify that the statements on
the form “are true, complete and correct to the best of my
knowledge and belief”; and warns that “[a]ny individual who
knowingly and willfully falsifies . . . this report may be subject
to . . . criminal sanctions.” App. 404 (2003 Verrusio Financial
Disclosure Statement) (citing 5 U.S.C. app. 4 § 104; 5 U.S.C.
§ 1001).
Most relevant here, employees must report gifts from a
single source totaling more than $285 on an attachment called
“Schedule VI.” A “gift” is defined, with exclusions not relevant
here, as “a payment . . . or any thing of value.” App. 423
(Schedule VI Instructions). “All types of gifts, including travel-
related expenses provided for [the employee’s] personal benefit,
must be reported on Schedule VI.” Id. “[A]ny gift with a fair
market value of $114 or less need not be counted.” Id. Thus,
for example, if a government employee “received a $90 gift and
a $200 item from the same source, neither item would have to be
disclosed, since the $90 gift falls below the $114 aggregation
threshold and the remaining item is valued at less than $285.”
Id. But a “group of items received from the same source at the
same time are considered one gift and the total value should be
added together.” Id.
10
Employees must also report certain travel payments and
reimbursements valued at more than $285 and provided by a
private source on a different attachment, called “Schedule VII.”
Schedule VII is for “travel (including food and lodging) in
connection with official duties.” Id.
When the time came for Verrusio to submit his financial
disclosure statement for 2003, he did not include information
about the World Series trip on either Schedule VI or VII.
Although Verrusio answered “yes” to the question on the main
financial disclosure statement asking whether he had “receive[d]
any reportable gift in the reporting period,” App. 404, he left the
attached Schedule VI blank. Verrusio did fill out a Schedule
VII, but he did not include the World Series trip on that
schedule. Id. at 408, 409.
House Ethics Committee4 staff attorney Paul Lewis
reviewed Verrusio’s financial disclosure statement for 2003.
Lewis noted in an email to Verrusio that, although Verrusio had
checked “yes” in the box for gifts to be reported on Schedule VI,
“no[] information is reported.” Supp. App. 105-06 (Lewis
Test.). Verrusio responded that the “Schedule VI ‘gifts’ section
should be checked ‘no.’” Id. at 108. Although Lewis twice
asked Verrusio to so amend his disclosure statement, Verrusio
never responded. Id. at 109-12.
4
In 2003, the Committee on Standards of Official Conduct was
colloquially known as the Ethics Committee. The Committee
officially changed its name to the Committee on Ethics at the start of
the 112th Congress.
11
C
In September 2008, FBI Special Agent James Harless
contacted Verrusio in connection with the FBI’s investigation
into Jack Abramoff’s lobbying activities. Verrusio initially
denied having been on a trip to New York with Jim Hirni. Supp.
App. 46 (Harless Test.). He also said he had never been offered
tickets to any sporting events by Todd Boulanger, Jim Hirni, or
anyone else lobbying on behalf of United Rentals. Id.
After the agent confronted him with the fact of the 2003
World Series trip, however, Verrusio admitted that “he was
asked to go because Ehrlich and Hirni wanted to get something
done on the United Rentals agenda.” Id. at 47. He also told the
agent that “the trip was not an official trip, that it served no
official purpose.” Id. The agent then asked Verrusio why he did
not disclose the trip on his financial disclosure form. He
initially said that “he had disclosed everything in accordance
with Congressional rules,” but then Verrusio told the agent that
“he knew he should have” disclosed the trip but had not done so.
Id. at 48-49. He told the agent that, “for him to have included
the trip in the disclosure form, . . . he would have had to have
misrepresented what the trip actually was, meaning he would
have had to have said it was an official trip when, it fact, it
wasn’t an official trip.” Id. at 49. Verrusio “said it was not a
fact-finding trip,” and “that it would not have passed the
scrutiny of the Ethics Office.” Id.
A grand jury indicted Verrusio on March 6, 2009. Count
One alleged that Verrusio conspired to receive illegal gratuities
in violation of 18 U.S.C. § 371. Specifically, it charged that
Verrusio and Blackann “agreed to provide favorable official
action to aid [United Rentals] by, among other things, inserting,
or causing others to insert, and protecting from removal, the
three legislative amendments sought by” United Rentals.
12
Indictment ¶ 13(b). Count Two alleged that Verrusio violated
the gratuities statute, 18 U.S.C. § 201(c), by accepting items of
value “for and because of his official assistance provided and to
be provided to [United Rentals’] efforts to secure favorable
amendments to the Federal Highway Bill.” Id. ¶ 28. Count
Three alleged that Verrusio violated the false statement statute,
18 U.S.C. § 1001, by knowingly and willfully making a
materially false statement on his 2003 financial disclosure form.
Id. ¶¶ 26-34.
Verrusio moved to dismiss the indictment on all counts for
lack of specificity and failure to state an offense. After the
district court denied the motion, Verrusio asked the court to
reconsider its ruling with respect to Count Two. In a hearing on
that motion, the district court ordered the government to submit
a supplemental brief identifying authorities supporting the
proposition that the alleged official acts were cognizable under
the gratuities statute. App. 165. Instead of submitting a brief,
on June 14, 2010 the government filed a superceding indictment,
which added information to Counts One and Two. As to Count
One, the government added that “Verrusio advised Blackann
that Verrusio and Blackann should wait to insert the
amendments sought by [United Rentals] until later in the
legislative process, and Blackann understood that Verrusio
would insert the amendments at the conference committee stage
of the Highway Bill.” Indictment ¶ 15. As to Count Two, the
government added a “to wit” clause, which detailed five forms
of “official assistance provided and to be provided to [United
Rentals’] efforts to secure favorable amendments to the Federal
Highway Bill,” including “influencing the language of the
Federal Highway Bill.” Id. ¶ 28.5
5
The other forms of official assistance specified in the “to wit”
clause were:
13
Verrusio again moved to dismiss Counts One and Two for
failure to allege an “official act” within the meaning of 18
U.S.C. § 201(c). The district court denied the motion, and the
case proceeded to trial. At the close of the evidence, Verrusio
moved for judgment of acquittal. As to Counts One and Two,
he argued that the government had failed to prove the “official
act” element of the gratuities charges; as to Count Three, he
argued that the government had failed to prove the falsity, intent,
and materiality elements of the false statements charge. The
court denied the motion, and the jury subsequently convicted
Verrusio on all counts.
On this appeal, Verrusio contends that: (1) the district court
erred in denying his pretrial motion to dismiss Count Two
because the indictment failed to allege an “official act”; (2) the
b. advising Blackann that [United Rentals’]
amendments should be inserted at the Conference
Committee stage;
c. meeting with Blackann, Ehrlich, and Hirni, and
discussing the Federal Highway Bill during the trip to
New York City;
d. advising Hirni that [United Rentals’] amendments
needed improvement, and offering to discuss the issue
further; and
e. advising Boulanger and Hirni regarding how to
overcome opposition to [United Rentals’] amendments.
Indictment ¶ 28(b)-(e). Because we conclude that the first listed form
of assistance -- “influencing the language of the federal highway bill”
-- satisfies the “official act” requirement of 18 U.S.C. § 201(c) and
was supported by sufficient evidence to warrant conviction, we do not
address the other four listed items.
14
evidence was insufficient to convict on Counts One and Two
because it failed to show that he conspired to perform or did
perform an official act; (3) the evidence failed to show that he
made a false statement on his financial disclosure form; and (4)
the district court committed reversible error in excluding a
defense exhibit and quashing a defense subpoena. We address
Verrusio’s first two challenges in Part II and his remaining two
challenges in Parts III and IV.
II
The gratuities statute provides, in relevant part, that any
“public official” who:
otherwise than as provided by law for the proper
discharge of official duty . . . directly or indirectly
demands, seeks, receives [or] accepts . . . anything of
value personally for or because of any official act
performed or to be performed by such official . . . shall
be fined under this title or imprisoned for not more
than two years, or both.
18 U.S.C. § 201(c). The statute defines “official act” as:
any decision or action on any question, matter, cause,
suit, proceeding or controversy, which may at any time
be pending, or which may by law be brought before
any public official, in such official’s official capacity.
Id. § 201(a)(3). The jury convicted Verrusio of violating the
statute (Count Two), and of conspiring with others to violate the
statute (Count One).
15
The Supreme Court has explained the difference between
the gratuities offense of § 201(c) and the related bribery offense
of § 201(b) as follows:
The distinguishing feature of each crime is its intent
element. Bribery requires intent ‘to influence’ an
official act or ‘to be influenced’ in an official act, while
illegal gratuity requires only that the gratuity be given
or accepted ‘for or because of’ an official act. In other
words, for bribery there must be a quid pro quo -- a
specific intent to give or receive something of value in
exchange for an official act. An illegal gratuity, on the
other hand, may constitute merely a reward for some
future act that the public official will take (and may
already have determined to take), or for a past act that
he has already taken.
United States v. Sun-Diamond Growers, 526 U.S. 398, 404-05
(1999).
Not all acts that an official performs come within the scope
of the gratuities statute. Verrusio’s arguments on appeal focus
on two cases that have interpreted the meaning of § 201(c),
United States v. Sun-Diamond Growers and Valdes v. United
States, 475 F.3d 1319 (D.C. Cir. 2007) (en banc).
In Sun-Diamond, the Supreme Court reversed a trade
association’s conviction for giving former Agriculture Secretary
Michael Espy illegal gratuities (including sports tickets,
luggage, and meals) under the parallel subsection of the
gratuities section that is applicable to those who give (rather
than, as here, to those who receive) gratuities. See 18 U.S.C.
§ 201(c)(1)(A). The trial judge had charged the jury that it
could find the association guilty if it “provided Espy with
unauthorized compensation simply because he held public
16
office,” and that the “government need not prove that the alleged
gratuity was linked to a specific or identifiable official act or any
act at all.” Sun-Diamond, 526 U.S. at 403. The Supreme Court,
however, held that the prohibition of “gratuities given or
received ‘for or because of any official act performed or to be
performed’ . . . means ‘for or because of some particular official
act,’” and that “the Government must prove a link between a
thing of value conferred upon a public official and a specific
‘official act’ for or because of which it was given.” Id. at 406,
414. It is insufficient, the Court said, that the gift is merely
“given by reason of the donee’s office.” Id. at 408. It is also
insufficient that the gift is given merely “to build a reservoir of
goodwill that might ultimately affect one or more of a multitude
of unspecified acts.” Id. at 405.
In Valdes, this court reversed a police detective’s conviction
for accepting cash for searching police databases for information
requested by an undercover informant. Focusing on the
statutory definition of official act, the court held that the
detective’s actions were not on a “question [or] matter” that
could be described as “‘pending’ or capable of being ‘by
law . . . brought’” before him. 475 F.3d at 1324 (quoting 18
U.S.C. § 201(a)(3)). That definition, the court said, “refers to a
class of questions or matters whose answer or disposition is
determined by the government,” which would “include[] such
questions as ‘Should the Congress enact new legislation
regulating corporate directors?’” Id. “Except in limited
circumstances,” we said, a mere “release of information” does
not come within that class. Id. at 1329.
In the following subparts, we apply this background to
Verrusio’s challenges to the validity of the indictment and the
sufficiency of the evidence.
17
A
Verrusio contends that the district court should have
dismissed Count Two because it omitted an essential element of
the gratuities offense: the allegation of an “official act.”
Verrusio Br. 37; Reply Br. 4. Because it presents a question of
law, we review this contention de novo. See United States v.
Yakou, 428 F.3d 241, 246 (D.C. Cir. 2005).6
It is certainly true that an indictment must “‘contain[] the
elements of the offense intended to be charged.’” United States
v. Pickett, 353 F.3d 62, 66 (D.C. Cir. 2004) (quoting Russell v.
United States, 369 U.S. 749, 763 (1962)). But the validity of an
indictment “is not a question of whether it could have been more
definite and certain.” United States v. Debrow, 346 U.S. 374,
378 (1953). Rather, to be sufficient, an indictment need only
inform the defendant of the precise offense of which he is
accused so that he may prepare his defense and plead double
jeopardy in any further prosecution for the same offense. See
Russell, 369 U.S. at 763-64; United States v. Blackley, 167 F.3d
543, 550 (D.C. Cir. 1999).7
Verrusio’s indictment did in fact inform him of the precise
offense of which he was accused, including the “official act”
element. Count Two charged him with “demand[ing], seek[ing],
receiv[ing], [and] accept[ing] . . . a thing of value personally for
6
Although Verrusio’s briefs suggested that he also challenged the
sufficiency of the indictment’s allegations with respect to Count One,
he indicated at oral argument that he did not intend to do so. See Oral
Arg. Recording at 17:35 (Nov. 12, 2013).
7
Because Verrusio does not claim that the indictment was
insufficient to protect him from double jeopardy, we consider only
whether it adequately informed him of the offense alleged.
18
and because of an official act performed and to be performed by
defendant Verrusio,” in violation of 18 U.S.C. § 201(c)(1)(B).
Indictment ¶ 28 (emphasis added).
Nor was that all the indictment said. Count Two charged
that Verrusio,
being a public official and otherwise than as provided
by law for the proper discharge of official duty, did
directly and indirectly demand, seek, receive, [and]
accept . . . a thing of value personally for and because
of an official act performed and to be performed by
[him], that is, defendant VERRUSIO did accept a trip
to Game One of the 2003 Baseball World Series in
New York City for and because of his official
assistance provided and to be provided to [United
Rentals’] efforts to secure favorable amendments to the
Federal Highway Bill, to wit: a. influencing the
language of the Federal Highway Bill . . . .
Indictment ¶ 28 (emphasis added). Indeed, the General
Allegations section of the indictment specified the particular
amendments that United Rentals sought:
In particular, Boulanger and Hirni sought three
amendments to the Federal Highway Bill. One
amendment would have encouraged public works
agencies to rent rather than purchase construction
equipment . . . . Another amendment would have
encouraged public works agencies to contract only
with those companies -- such as [United Rentals] --
which had large dollar amounts of liability insurance
coverage . . . . A third amendment would have
encouraged public works agencies to use work zone
19
safety systems such as those provided by [United
Rentals].
Id. ¶ 6; see id. ¶ 26 (incorporating General Allegations into
Count Two). Accordingly, not only did Verrusio’s indictment
allege an official act, it specified the particular act that Sun-
Diamond requires.
Verrusio makes two further claims in connection with his
challenge to the indictment. First, he maintains that the only
argument in the government’s appellate brief on this point was
that Count Two sufficiently alleged an “official act” merely by
alleging that Verrusio would provide “official assistance”; that
in so doing the government waived any other argument it might
have had in support of the indictment; and that as a consequence
the indictment must fall because “official assistance” is
insufficiently “specific” under Sun-Diamond. Reply Br. 8-9, 10-
12. Verrusio’s syllogism fails because its premise is incorrect.
The government did not rest its support of the indictment merely
on “official assistance,” but on a particular kind of assistance.
The government argued that “the charging language in Count
2 . . . describes the official act as ‘official assistance provided
and to be provided to [United Rentals’] efforts to secure
favorable amendments to the Federal Highway Bill,’” and
pointed out that “Verrusio’s contention that Acts 1 and 3 lack
specificity is beside the point when the specific ‘official act’ is
assisting United Rentals win passage of the amendments.”
Gov’t Br. 28 (quoting Indictment ¶ 28).
Second, Verrusio contends that Count Two of the
indictment failed to allege an official act because it failed to say
“how Mr. Verrusio was going to use his position” to help United
Rentals. Reply Br. 10. This is necessary, he says, because
Valdes requires that an official act “involved using his official
position to influence the decision-making process.” Id. at 9
 20
(citing Valdes, 475 F.3d at 1324). But whether or not such
specificity is required in an indictment, Verrusio’s indictment
supplied it. As we have noted, one of the official acts specified
in Count Two was assisting in United Rentals’ “efforts to secure
favorable amendments to the Federal Highway Bill,” by, among
other things, “influencing the language of the Federal Highway
Bill.” Indictment ¶ 28. That is certainly a “question[] or
matter[] whose answer or disposition is determined by the
government.” Valdes, 475 F.3d at 1324. Indeed, it is
indistinguishable from the “question or matter” that Valdes gave
as an example of one that plainly comes within the statute:
“‘Should the Congress enact new legislation regulating
corporate directors?’” Id. Moreover, as the evidence at trial
showed, the question of whether the amendments should be
added to the bill was “pending” before and to be answered (at
least partly) by the committee for which Verrusio was the policy
director. See infra Part II.B.4.
Nothing more (and perhaps less) is sufficient to satisfy
Valdes. The indictment certainly need not allege precisely how
Verrusio contemplated influencing that language. Would he do
it by himself or ask someone else to do it? Would that someone
else be Colonel Mustard or Professor Plum? With a candlestick
or a rope, in the library or the study? Answering those questions
is not required at the indictment stage. Alleging that Verrusio
received gratuities for his official assistance in “securing
favorable amendments” to the federal highway bill by
“influencing [its] language” is sufficiently specific.
In sum, because the indictment alleged that Verrusio
accepted the World Series trip for or because of his official
assistance in influencing the language of the federal highway
bill, the charge contained the required element, and the district
court correctly denied Verrusio’s motion to dismiss.
21
B
Verrusio also argues that the evidence admitted at trial was
insufficient to convict him on Counts One and Two. Evidence
is sufficient to sustain a verdict if, “viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319
(1979). In making that determination, we draw “no distinction
between direct and circumstantial evidence, and giv[e] full play
to the right of the jury to determine credibility, weigh the
evidence and draw justifiable inferences of fact.” United States
v. Branham, 515 F.3d 1268, 1273 (D.C. Cir. 2008) (internal
quotation marks omitted). Verrusio contends that the evidence
was insufficient in the following respects.8
1. Verrusio’s principal contention is that the evidence failed
to “connect the item of value received by the public official to
a specific official act.” Verrusio Br. 15. No violation of the
gratuities statute occurs, he notes, if “the item of value was
provided because of a public official’s position or for future,
unspecified acts.” Id.
This argument attempts to fit the square peg of this case into
Sun-Diamond’s round hole. As we noted above, the indictment
did not allege that the World Series trip was given merely on
account of Verrusio’s official position or for some unspecified
future action that he might take. See supra Part II.A. Rather, it
charged that Verrusio received the World Series trip “for” his
official assistance in “secur[ing] favorable amendments to the
Federal Highway Bill . . . to wit . . . influencing the language of
8
Because Verrusio does not present any sufficiency arguments
that he contends are unique as to either count, we do not address the
counts separately.
22
the Federal Highway Bill . . . .” Indictment ¶ 28. And as we
explained above, that allegation is sufficient under Sun-Diamond
to satisfy the “official act” element of the gratuities offense -- if
the government establishes it at trial. See supra Part II.A. In
our view, the government did so.
As set out in Part I, the evidence showed that United
Rentals wanted specific amendments inserted into the then-
pending federal highway bill. Lobbyists Boulanger and Hirni
discussed United Rentals’ desired amendments with Senate
staffer Trevor Blackann, who in turn discussed those
amendments with Verrusio. Because of their respective
positions in the Senate and House Committees responsible for
the bill, both Blackann and Verrusio were well situated to help
United Rentals advance its legislative agenda.
Blackann testified that he discussed United Rentals’
legislative agenda with Verrusio because he knew, from his
discussions with Boulanger and Hirni, “that they were also
working with Mr. Verrusio on the same package of
amendments.” App. 220. Blackann said that he and Verrusio
anticipated opposition to United Rentals’ desired amendments,
and that they “discussed the idea of waiting till the last possible
minute legislatively to insert the provisions,” which Blackann
termed the “airmail strategy.” Id. at 221. Verrusio was adamant
that this was the route that United Rentals should take, and
Blackann so advised United Rentals’ lobbyists. Id.
It was after these discussions that United Rentals employee
Ehrlich asked the lobbyists whether “there were any government
officials that [United Rentals] would be interested in taking [to
the World Series] that could be helpful” in advancing the
company’s legislative agenda. App. 188 (Boulanger Test.).
Together they decided to invite Blackann and Verrusio because
“they were in positions to be helpful . . . [s]pecifically” with
23
“[t]he United Rentals’ amendments that we were seeking to
include in the highway bill.” Supp. App. 19-20 (Boulanger
Test.). Boulanger knew that Verrusio was “close” to the
chairman of the House Committee and hoped to “influence
him . . . to do some things for our clients.” Id. at 21-22.
Similarly, Hirni acknowledged that he had used the “tickets in
[an] attempt to influence the Congressional staff for legislation.”
Id. at 85.
The emphasis on specific legislation continued while the
two lobbyists and the two congressional staffers were in New
York. Over drinks and dinner, the four men “talked a lot about
United Rentals” and “got into a conversation about concepts and
ideas United Rentals had for federal legislation.” Id. at 64
(Hirni Test.). Verrusio “walked them through” the airmail
strategy, indicating that it had “the best chance for ultimate
success.” Id. at 27 (Blackann Test.).
Although the relevant legal issue at trial was what the all-
expenses-paid trip was “for” at the time it was given, the jury
was also free to look to post-trip events as circumstantial
confirmation of the parties’ original intentions. See United
States v. Mitchell, 49 F.3d 769, 776 (D.C. Cir. 1995) (noting that
“subsequent acts may sometimes be relevant to the intent
underlying an earlier act”); United States v. Gallo, 543 F.2d 361,
365 (D.C. Cir. 1976) (same). That evidence likewise indicated
that the World Series trip was given for Verrusio’s assistance in
inserting language into the highway bill. Just three days after
the trip, Hirni forwarded Verrusio an email from Boulanger that
“listed a series of legislative items and some legislative text that
United Rentals was now pushing.” Supp. App. 79 (Hirni Test.).
Soon thereafter, Blackann told Verrusio that his office was
going “to actually work to get something in the Senate version
of the bill.” Id. at 34 (Blackann Test.). According to one of the
lobbyists, Blackann “was integral” to United Rentals’ success in
24
getting all three of its amendments included in the bill coming
out of the relevant Senate committee. App. 198 (Boulanger
Test.). And while the company was unsuccessful on the House
side, there was nonetheless substantial evidence that Verrusio
also kept trying to help with the language until the very end. See
App. 413 (Hirni email to Moeglein) (stating that Verrusio had
asked him for the language of United Rentals’ amendments
“plus what [it] would want in the perfect world”); id. (stating
that Hirni had sent Verrusio “the language in the Senate bill,
with changes which would represent the 100% victory for”
United Rentals).9
In sum, after hearing all of the evidence, a reasonable juror
could readily have concluded that the World Series trip was
given and received “for or because of some particular official
act” -- that is, for influencing the language of the federal
highway bill -- and not merely “by reason of [Verrusio’s] office”
or merely “to build a reservoir of goodwill that might ultimately
affect one or more of a multitude of unspecified acts,” Sun-
Diamond, 526 U.S. at 405-07 (emphasis added).
2. Verrusio further maintains that the government failed to
establish the intent element of the gratuities offense because
there was insufficient evidence that “the alleged official
acts . . . [were] contemplated when [he] accepted the illegal
gratuity.” Verrusio Br. 15. We conclude, to the contrary, that
the evidence was sufficient for the jury to find that Verrusio
9
See also Supp. App. 13 (Verrusio email to Boulanger) (“Still
hard at it. Dissenting views still loom with some in leadership. Stay
tuned.”); id. at 14 (Verrusio email to Boulanger) (“Far from a total
mess. No question there are issues, but we still feel good.”); id. at 36-
37 (Blackann Test.) (noting that Verrusio was at the “preconference”
staff meeting at which Blackann, as Senate designee, presented United
Rentals’ amendments to the House).
25
accepted the gift knowing it was being given for the particular
act of influencing the language of the federal highway bill.
Indeed, the evidence was also sufficient to find that Verrusio
intended to do so.10
As the evidence set forth above shows, when the
opportunity to give the World Series tickets arose, United
Rentals did so for and because of Verrusio’s anticipated help in
inserting its desired amendments into the bill. The testimony of
Ehrlich, Hirni, and Boulanger was more than sufficient to
10
It is doubtful that proof of the latter, heightened level of intent
is required. See Sun-Diamond, 526 U.S. at 404-05 (“The
distinguishing feature of each crime[, bribery and gratuity,] is its intent
element. . . . An illegal gratuity . . . may constitute merely a reward
for some future act that the public official will take (and may already
have determined to take), or for a past act that he has already taken.”
(emphasis added)); United States v. Brewster, 408 U.S. 501, 527
(1972) (“To sustain a [gratuities] conviction it is necessary to show
that appellee solicited, received, or agreed to receive, money with
knowledge that the donor was paying him compensation for an official
act.”); United States v. Gatling, 96 F.3d 1511, 1522 (D.C. Cir. 1996)
(“A central difference between accepting a bribe and accepting a
gratuity is the degree of culpable intent on the part of the
recipient; . . . to convict for accepting a gratuity the jury need only
find that the defendant acted ‘knowingly and willingly.’” (quoting
United States v. Campbell, 684 F.2d 141, 150 (D.C. Cir. 1982)));
Campbell, 684 F.2d at 150 (indicating that the intent element of the
gratuities offense is satisfied by showing that the defendant “accepted
gifts ‘with knowledge that the donor was paying him compensation for
an official act.’” (quoting Brewster, 408 U.S. at 527)); United States
v. Brewster, 506 F.2d 62, 77 (D.C. Cir. 1974) (holding that “[w]hat is
outlawed” by the gratuities offense “is only the knowing and
purposeful receipt by a public official of a payment, made in
consideration of an official act, for himself”).
26
establish that point.11 Did Verrusio know that was why he was
being offered the tickets? In taking them, did he intend to help
the company in the way it hoped he would? Verrusio was the
policy director for the House Committee with jurisdiction over
the federal highway bill. Before he went on the trip, he had
already discussed, in detail, the amendments United Rentals
wanted with both the company’s lobbyists and with Blackann,
his counterpart in the Senate. See App. 220 (Blackann Test.).
Together the two had already devised a strategy for how they
might achieve United Rentals’ goals. Surely a reasonable jury
could have concluded that, before getting on the airplane to New
York City, Verrusio knew what the company wanted, knew why
it had turned to him, and indicated that he planned to help. Once
in New York, Verrusio’s active participation in the discussion
of United Rentals’ “concepts and ideas . . . for federal
legislation,” Supp. App. 64 (Hirni Test.), provided further
evidence that he knew he was receiving an illegal gratuity. The
chauffeured car ride, the World Series game, the souvenir
jerseys, and the strip club all came afterwards.
Once again, post-trip events could have provided a
reasonable jury with further confirmation of the parties’ original
intentions. See supra Part II.B.1; see, e.g., Mitchell, 49 F.3d at
11
See, e.g., App. 188 (Boulanger testimony that Ehrlich asked the
lobbyists if “there were any government officials that [United Rentals]
would be interested in taking [to the World Series] that could be
helpful” in advancing the company’s legislative agenda); Supp. App.
19-20 (Boulanger testimony that Ehrlich and Boulanger, in
conjunction with Hirni, decided to invite Blackann and Verrusio
because “they were in positions to be helpful . . . [s]pecifically” with
“[t]he United Rentals’ amendments that we were seeking to include in
the highway bill”); id. at 85 (Hirni testimony that he used the World
Series “tickets in [an] attempt to influence the Congressional staff for
legislation”).
27
776. That evidence ranged from Hirni forwarding Verrusio --
just three days after the trip -- an email that “listed a series of
legislative items and some legislative text that United Rentals
was now pushing,” Supp. App. 79 (Hirni Test.); to Verrusio
indicating to Hirni that he was “going to be helpful with our
legislative asks,” App. 271 (Hirni Test.); to Verrusio asking
Hirni, three months after the trip, to “give him the language plus
what [United Rentals] would want in the perfect world,” id. at
413 (Hirni email to Moeglein). That evidence also included
Verrusio’s failure to list the trip on his financial disclosure form,
Supp. App. 105-106 (Lewis Test.), and his initial failure to
disclose the nature of the trip to an FBI agent, id. at 46 (Harless
Test.). The jury could have inferred consciousness of guilt from
both of those false statements. See United States v. Shabban,
612 F.3d 693, 697 (D.C. Cir. 2010) (finding that the defendant
“evidenced consciousness of guilt” by making false statements
about an event). And, of course, the jury heard Verrusio’s
admission to FBI Agent Harless that he was “asked to go” to the
World Series “because Ehrlich and Hirni wanted to get
something done on the United Rentals agenda.” Supp. App. 47
(Harless Test.)
3. Verrusio’s third argument is that “the government
proved, at most, that Mr. Verrusio shared publicly available
information with lobbyists,” and that the “sharing of information
is not an official act because it does not implicate a public
official using his position to influence decision-making.”
Verrusio Br. 15.
It is true, as we noted above, that this court has held that,
“[e]xcept in limited circumstances,” the mere “release of
information” does not come within the statutory definition of
“official act.” Valdes, 475 F.3d at 1329. But it does not matter
if, “during the [World Series] trip,” Verrusio’s only acts were to
“provide[] generic advice and publicly-available information
28
regarding how United Rentals could achieve its goals.” Reply
Br. 14. The gratuities statute proscribes payments “for or
because of any official act performed or to be performed by
such official.” 18 U.S.C. § 201(c)(1)(B) (emphasis added). Nor
does it matter whether Verrusio succeeded in influencing the
language -- or even tried to do so. As we explained in Valdes,
“the anti-gratuity provision has no requirement that the payment
actually influence the performance of an official act.” 475 F.3d
at 1322 (internal quotation marks omitted). What matters is
what the gift was contemplated for at the time it was given. And
for the reasons set forth above, a reasonable jury could readily
have concluded the World Series trip was contemplated for the
particular act of getting United Rentals’ language into the
federal highway bill.
4. Finally, Verrusio suggests that he could not have received
a payment for “influencing the language of the Federal Highway
Bill” because he was not responsible for drafting legislation or
deciding whether it would get into the bill. This is the same
argument we rejected in United States v. Ring, 706 F.3d 460
(D.C. Cir. 2013), another case involving Jack Abramoff’s
lobbying team. Ring was charged with paying an illegal gratuity
when he gave Washington Wizards basketball tickets to a
Justice Department attorney as a reward for helping to expedite
review of a visa application. Ring’s defense was that the
attorney lacked decisionmaking authority with respect to visa
applications, and that all the attorney did (or could do) was to
call a secretary at the Immigration and Naturalization Service
(INS), who in turned passed on the request to various INS
officials, who ultimately agreed to expedite the application. Id.
at 469. In rejecting Ring’s defense, we held:
[T]he attorney acted in his official capacity to influence
the visa application process . . . . To be sure, the
attorney himself lacked independent authority to
29
expedite visa applications. But Ring’s attempt to
import a requirement that the official in question have
ultimate decisionmaking authority into the definition of
“official act” has no statutory basis.
Id. at 470 (citations omitted).
As policy director of the House Committee with jurisdiction
over the federal highway bill, Verrusio was well-positioned to
influence its language. See App. 188-91 (Boulanger Test.);
Supp. App. 22 (Blackann Test.); id. at 46 (Harless Test.).
Blackann testified that “Mr. Verrusio, he’s the policy director
for the whole committee, so he’s kind of got the umbrella
authority overall of the subcommittees. . . . [Verrusio] is the
guy, based on his position, that could come in at the last minute
with Chairman Young’s last-minute priorities. . . . He had the
ability to come in at the last minute and do something different.”
Supp. App. 43. Indeed, Blackann testified that Verrusio was
there at the “last minute” -- at the “preconference” staff meeting
at which Blackann presented the United Rentals provisions of
the Senate bill to the House. Id. at 37. All of this was sufficient
evidence of Verrusio’s ability to influence the content of the
highway bill, even if he did not have ultimate authority to
determine its final language. Cf. United States v. Carson, 464
F.2d 424, 433 (2d Cir. 1972) (“There is no doubt that federal
bribery statutes have been construed to cover any situation in
which the advice or recommendation of a Government employee
would be influential, irrespective of the employee’s specific
authority (or lack of same) to make a binding decision.”
(citations omitted)).
Accordingly, we conclude that there was sufficient evidence
to sustain Verrusio’s convictions on Counts One and Two.
30
III
Verrusio also contends that the evidence was insufficient to
sustain his conviction on Count Three for making a false
statement on his 2003 financial disclosure statement. He makes
two arguments in support of that proposition.
A
At trial, Verrusio’s principal argument was that, although
the indictment charged that he made a false statement on
Schedule VI (gifts) of his financial disclosure form, the evidence
introduced at trial only showed that he should have reported
some of the World Series items on Schedule VII (official travel).
The two premises of this argument were that the travel-related
expenses (transportation, meals, lodging) were reportable on
Schedule VII, and that the value of the remaining items (the strip
club, World Series tickets, jerseys) did not meet the reporting
threshold for Schedule VI. See Trial Tr. 112-16 (Feb. 7, 2011
p.m.). As a consequence, Verrusio contended, there was nothing
false about his failure to fill out Schedule VI. He repeats that
argument on appeal.
The government responds by challenging the first premise,
maintaining that all of the items should have been reported on
Schedule VI, not VII.12 To this, Verrusio replies that there was
no evidence upon which the jury could “differentiate between
reportable ‘gifts’ and ‘travel’” because “no witness -- expert or
otherwise -- testified with specific knowledge about what gifts
are reportable on Schedule VI.” Reply Br. 14-15. Verrusio is
wrong. The jury was presented with sufficient evidence
12
Because the government does not challenge the second premise
on appeal, and because it is not necessary to our disposition, we do not
address it.
31
regarding which information had to be reported on Schedule VI
and which on Schedule VII, as well as with sufficient evidence
to support the charge that he should have reported all of the
items from the World Series trip on Schedule VI.
First, the court admitted the instructions for Schedule VI as
an exhibit. Those instructions explain the difference between
the two schedules. The instructions state that employees must
report gifts from a single source totaling more than $285 on
Schedule VI. “All types of gifts, including travel-related
expenses provided for [the employee’s] personal benefit, must
be reported on Schedule VI.” App. 423 (emphasis added). By
contrast, the instructions explain, Schedule VII is for privately
funded “travel (including food and lodging) in connection with
official duties.” Id. (emphasis added).
Second, there was sufficient evidence for the jury to
conclude that the trip and its related expenses were for
Verrusio’s “personal benefit,” and not “in connection with
official duties.” In particular, the jury heard Verrusio’s
statements to the FBI: Verrusio admitted “that he knew he
should have” disclosed the trip, and further admitted that it
“wasn’t an official trip.” Supp. App. 49 (Harless Test.).
Blackann likewise testified that the trip was not for official
business. Id. at 44. So, too, did Hirni and Ehrlich. See App.
251 (Hirni Test.); id. at 287 (same); Supp. App. 88 (Ehrlich
Test.). And, of course, Verrusio did not report the trip on
Schedule VII either.
B
Verrusio also maintains that a reasonable juror could not
have found that the failure to disclose the trip and related
expenses was “material” because “[t]here was no testimony as
to how, if at all, the information disclosed in the [financial
32
disclosure] statements could have influenced the action of the
Ethics Committee.” Verrusio Br. 51. An essential element of
the false statement offense of 18 U.S.C. § 1001(a)(2) is that the
statement be “materially false.” United States v. Moore, 612
F.3d 698, 700 (D.C. Cir. 2010). A statement “need not actually
influence an agency in order to be material; it need only have ‘a
natural tendency to influence, or [be] capable of influencing’ an
agency function or decision.” Id. at 701-02 (quoting United
States v. Gaudin, 515 U.S. 506, 509 (1995)). Nor must the
government “present any testimony or other evidence
specifically for the purpose of establishing the materiality of [the
defendant’s] false statement.” Id. at 702. Rather, the jury can
infer from other evidence that the false statement “was capable
of affecting” the agency’s functions. Id.
In this case, the jury could reasonably have inferred that
Verrusio’s false statement on his 2003 financial disclosure form
was material. The form specifically stated that it “will be
reviewed by the Committee on Standards of Official Conduct or
its designee.” App. 404. Committee attorney Paul Lewis
further testified that the Committee told its staff to determine
whether financial disclosure statements were “accurate,”
“complete,” and “complied with applicable laws and rules.”
Supp. App. 95 (Lewis Test.). From this, the jury could
reasonably conclude that, by omitting items required to be listed
on the form and falsely certifying that it was nonetheless “true,
complete and correct,” App. 404, Verrusio interfered with the
Ethics Committee’s ability to perform its function of monitoring
compliance with relevant rules. Verrusio’s omissions plainly
affected the functions of staff attorney Lewis, who had to follow
up with Verrusio repeatedly regarding the inconsistencies in his
disclosure forms. See Supp. App. 105-12 (Lewis Test.). And
Verrusio himself admitted to the FBI that, had he listed the trip
on the form, it “would not have passed the scrutiny of the Ethics
Office.” Id. at 49 (Harless Test.). Cf. United States v. Stadd,
33
636 F.3d 630, 639 (D.C. Cir. 2011) (finding that the defendant’s
misrepresentation about a conflict of interest in an email to
agency counsel was material because, if the defendant “had
accurately reported the substance” of his conflict, he “would
have raised red flags that would have led [the agency lawyer] to
inquire further”); Moore, 612 F.3d at 702 (holding that the jury
could reasonably have inferred that the defendant’s signing of a
false name on a postal service delivery form “was capable of
affecting the Postal Service’s general function of tracking
packages and identifying the recipients of packages entrusted to
it”).
IV
In this Part, we address Verrusio’s contentions that the
district court committed reversible error by excluding a defense
exhibit and quashing a defense subpoena.
A
Verrusio contends that the district court committed
reversible error when it excluded the instructions for Schedule
VII of the financial disclosure statement. As noted in Part III.A,
the theory of Verrusio’s defense was that several of the expenses
relating to the World Series trip were not personal gifts, which
must be disclosed on Schedule VI, but rather were travel
expenses related to his official duties, which instead belonged on
Schedule VII. On that theory, Schedule VI did not contain any
false statements. Accordingly, Verrusio sought to introduce the
instructions for Schedule VII into evidence.
Although the district court admitted Verrusio’s entire
financial disclosure statement, including Schedule VII, and also
admitted the instructions for Schedule VI, it excluded the
Schedule VII instructions on relevance grounds. See App. 316-
34
17. In that respect, the court erred, because the instructions --
which discussed the difference between Schedules VI and VII --
were relevant to Verrusio’s defense. Nonetheless, that error
helps Verrusio only if it was not harmless. See FED. R. CRIM. P.
52(a). And because the alleged error “did not involve a
constitutional right,” it is harmless “as long as ‘it did not have
a substantial and injurious effect or influence in determining the
jury’s verdict.’” United States v. Stubblefield, 643 F.3d 291,
296-97 (D.C. Cir. 2011) (quoting Kotteakos v. United States,
328 U.S. 750, 776 (1946)); see United States v. Powell, 334 F.3d
42, 45 (D.C. Cir. 2003). We conclude that the error was
harmless.
As we have noted, the Schedule VI instructions, which were
admitted into evidence, read: “All types of gifts, including
travel-related expenses provided for your personal benefit, must
be reported on Schedule VI. However, travel (including food
and lodging) in connection with official duties is reported
separately on Schedule VII.” App. 423. Given that instruction,
Verrusio was able to (and did) present to the jury his theory that
the expenses he failed to report on Schedule VI involved travel
in connection with his official duties and hence were not
reportable on Schedule VI. See Trial Tr. 84 (Feb. 7, 2011 p.m.).
There was, however, more than enough evidence for the jury to
reject this theory. See supra Part III.A.
The remaining question is whether there was anything in the
Schedule VII instructions that was not in the Schedule VI
instructions and that harmed Verrusio’s defense by its absence.
The non-admitted Schedule VII instructions state, in pertinent
part:
[Y]ou must disclose in this section travel for such
activities as speaking engagements, conferences, or
fact-finding events related to official duties. You must
35
also disclose privately paid travel that, while not
related to your official duties, was not provided merely
for your personal benefit; for example, travel paid for
by corporations that you or your family own, travel that
is necessary in connection with your service as an
officer or board member of any organization, and
travel for job interviews must be disclosed here. . . . In
contrast, travel-related expenses provided merely for
your personal benefit (for example, a vacation paid for
by a personal friend) are subject to the reporting
requirements for Schedule VI.
App. 424. Of the specific items that the instruction lists as
reportable on Schedule VII, the only one that Verrusio might
have argued applied to the New York trip was that it was a
“fact-finding event[] related to official duties.” But nothing
precluded Verrusio from making that claim to the jury using the
admitted instruction, which stated that “travel (including food
and lodging) in connection with official duties is reported
separately on Schedule VII.”
The additional advantage of having an instruction stating
specifically that a “fact-finding event[] related to official duties”
was reportable on Schedule VII, when there was an admitted
instruction saying that “travel . . . in connection with official
duties” was reportable on that Schedule, was minimal. That is
particularly so considering that no witness testified the trip was
“related to official duties” at all. Three witnesses specifically
said it was not. See App. 222-23 (Blackann Test.); Supp. App.
44 (same); App. 251 (Hirni Test.); id. at 287 (same); Supp. App.
88 (Ehrlich Test.). Moreover, Verrusio himself told the FBI that
“it was not a fact-finding trip.” Supp. App. 49 (Harless Test.).
And, of course, he did not report the trip on Schedule VII (or
VI).
36
Verrusio also contends that he was prejudiced because the
non-admitted Schedule VII instructions state that pre-approval
of a trip by the Ethics Committee is not required. But the
government did not argue that pre-approval of the World Series
trip was required, and testimony and defense argument
underscored that point. See App. 222 (Blackann Test.); Supp.
App. 151-52 (defense closing argument). Accordingly, neither
this nor any of the preceding arguments persuades us that the
exclusion of the Schedule VII instructions had “a substantial and
injurious effect or influence in determining the jury’s verdict,”
Stubblefield, 643 F.3d at 296-97 (internal quotation marks
omitted).
B
Verrusio subpoenaed Vivian Moeglein, the former
legislative director for Congressman John Boozman, seeking her
testimony that Verrusio did not press her to act in United
Rentals’ favor. Moeglein moved to quash on the ground that her
testimony was privileged under the Speech or Debate Clause,
see U.S. CONST., art. I, § 6, and the district court agreed.
Verrusio now contends that the protection of the Speech or
Debate Clause is not absolute, and that the court should have
balanced his Fifth and Sixth Amendment rights against the
Speech or Debate Clause privilege and found that his rights
prevailed. Alternatively, Verrusio contends that the district
court should have granted his motion to dismiss the indictment
because the unavailability of the witness deprived him of his
ability to present a defense.
As Verrusio conceded at oral argument, he has waived the
first contention. Oral Arg. Recording at 38:58-41:01. At trial,
Verrusio’s counsel told the court that “the defense fully
recognizes the high hurdle that the Speech or Debate clause
imposes here, and we really don’t have many quibbles with
37
House counsel’s brief,” which argued that the Speech or Debate
privilege was absolute. App. 336.
Because Verrusio waived this argument, any error was
extinguished. See United States v. Olano, 507 U.S. 725, 733
(1993). But even if we were to regard the argument as merely
forfeited rather than waived, it would still fail under the plain
error standard of review. See Johnson v. United States, 520 U.S.
461, 467 (1997). Verrusio points to no case in which any court
has found that a defendant’s Fifth and Sixth Amendment rights
trump the Speech or Debate Clause privilege, and he
acknowledges that this is “an issue that has apparently never
been directly confronted by any court.” Verrusio Br. 39. In
such circumstances, an error cannot be plain. See United States
v. Nwoye, 663 F.3d 460, 466 (D.C. Cir. 2011) (“Absent
controlling precedent on the issue or some other absolutely clear
legal norm, the district court committed no plain error.” (internal
quotation marks and citation omitted)). Accordingly, we affirm
the district court’s decision to quash the subpoena for
Moeglein’s testimony without deciding whether it was
erroneous.
Although Verrusio did not waive his second contention, it
also fails. Repeating an argument that he raised before the case
went to the jury, App. 365, 369, Verrusio contends that the
district court should have dismissed the indictment because
quashing Moeglein’s subpoena deprived him of material
evidence, thereby violating his rights to compulsory process and
due process. To establish a compulsory process violation, a
defendant must show “more than the mere absence of
testimony.” United States v. Valenzuela-Bernal, 458 U.S. 858,
867 (1982). Rather, he must make “some showing that the
evidence lost would be both material and favorable to the
defense.” Id. at 873. A “witness’ testimony is material [only]
if its absence actually prejudiced the defendant’s ability to
38
mount a defense.” United States v. Dean, 55 F.3d 640, 662
(D.C. Cir. 1995); see id. at 663 n.14; Valenzuela-Bernal, 458
U.S. at 867-69. And “at least the same materiality requirement
obtains with respect to a due process claim.” Valenzuela-
Bernal, 458 U.S. at 872.
Verrusio has not shown that Moeglein’s testimony was
material in the above sense. He contends that he could have
“elicit[ed] testimony from [her] about her interactions with
Hirni, including his offer to buy her lunch and his offer of
tickets to a sporting event.” Reply Br. 24 (citing trial proffer).
But the fact that the lobbyist offered other staffers gifts hardly
exculpates Verrusio, whether or not those gifts constituted
illegal gratuities. Verrusio also proffers that Moeglein would
have said “that Mr. Verrusio was not in fact inserting himself in
the process, that he was not placing the pressure on her, that she
independently was communicating with Mr. Hirni, and that she
has no recollection of any pressure being put on her by Mr.
Verrusio.” Id. (quoting App. 342). But as we explained above,
see supra Part II.B.3, the government was not required to show
that Verrusio took any affirmative steps to add United Rentals’
amendments to the federal highway bill, let alone that he
pressured Moeglein to act in United Rentals’ favor. Moreover,
even if the proffer were accurate, the fact that Verrusio did not
pressure one staffer is no (or, at best, extraordinarily weak)
evidence that he did not try to influence others.
Finally, we note that, after the court quashed the subpoena,
it went on to consider whether to strike two previously admitted
email chains between Moeglein and Hirni. The issue was
resolved when the parties instead agreed to redact Moeglein’s
statements from the email chains, strike testimony discussing
those statements, and preclude argument about her conduct.
App. 361-62, 366-68. Verrusio still argued that he needed
Moeglein as a witness to explain the statements that Hirni made
39
to her in emails. But the redactions greatly, if not entirely,
mitigated the value of her testimony, given that the “speaker” in
the emails -- Hirni -- testified at trial and was subject to cross-
examination. Verrusio has not suggested what kind of
admissible testimony Moeglein could have offered to explain
Hirni’s statements. And he has proffered nothing to suggest that
his inability to put Moeglein on the stand “actually prejudiced
[his] ability to mount a defense.” Dean, 55 F.3d at 662.
Accordingly, we find no error in the district court’s denial of
Verrusio’s motion to dismiss the indictment.
V
For the foregoing reasons, we conclude that Verrusio’s
indictment did not omit an essential element of the charges
against him, that the evidence at trial was sufficient to sustain
his convictions, and that Verrusio was not prejudiced by the
district court’s decisions to exclude a defense exhibit and quash
a defense subpoena. The judgment of the district court is
therefore
Affirmed.