Mamodoh Abouemara v. Commonwealth of Virginia ( 2023 )

COURT OF APPEALS OF VIRGINIA
PUBLISHED
Present: Judges Chaney, Raphael and Callins
Argued at Richmond, Virginia
MAMDOH ABOUEMARA
OPINION BY
v. Record No. 0284-22-2 JUDGE STUART A. RAPHAEL
JUNE 6, 2023
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF MECKLENBURG COUNTY
S. Anderson Nelson, Judge
Charles C. Cosby, Jr. (Kevin E. Calhoun, on brief), for appellant.
William K. Hamilton, Assistant Attorney General (Jason S. Miyares,
Attorney General, on brief), for appellee.
Mamdoh Abouemara was convicted of bribery under Code § 18.2-447 after he offered to
the town council for the Town of La Crosse that he would pay $500 a month to the town if the
council would write a letter supporting the gaming machines in his convenience store. On
appeal, Abouemara claims that the prosecution failed to prove that he acted with a corrupt intent
or with an intent to undermine the administration of justice. Because the evidence taken in the
light most favorable to the Commonwealth satisfies the elements of bribery, however, we affirm
his conviction.
BACKGROUND
We recite the facts “in the ‘light most favorable’ to the Commonwealth, the prevailing
party in the trial court.” Hammer v. Commonwealth, 74 Va. App. 225, 231 (2022) (quoting
Commonwealth v. Cady, 300 Va. 325, 329 (2021)). Doing so requires that we “discard” the
defendant’s evidence when it conflicts with the Commonwealth’s evidence, “regard as true all
the credible evidence favorable to the Commonwealth,” and read “all fair inferences” in the
Commonwealth’s favor. Cady, 300 Va. at 329 (quoting Commonwealth v. Perkins, 295 Va. 323,
324 (2018)).
In 2019, Abouemara operated a convenience store in the Town of La Crosse, in
Mecklenburg County. His store featured gaming machines.
Kendall Foster was the chief of police for the town. Before the incident at issue, Chief
Foster investigated the legality of operations at Abouemara’s store after observing many cars in
the parking lot between 11:00 p.m. and 5:00 a.m., when the store was closed. Foster also found
“cash in, cash out” receipts in the store’s garbage.1
The town manager of La Crosse was F.A. Hendrick, an employee of the town council.
His job responsibilities included attending all public meetings, representing the town to the
public, and submitting certain questions to the council to elicit the members’ vote. As Hendrick
put it, “I do the minor stuff. The major stuff I . . . bring up to the council and get a vote.”
During the first week of October 2019, Abouemara came to Hendrick’s office, wanting to
“talk . . . about making some donations to the Town of La Crosse.” Abouemara also “said that
he would like a letter of support for his machines and business . . . . [H]is lawyer advised him
that it would be nice to get that from the town, a letter of support from the town.” Hendrick
responded that the town could not “take donations directly,” but that Abouemara could donate to
the “Friends of La Crosse,” a 501(c)(3) organization. That group disburses funds as it “see[s] fit
for the betterment of the town.”
While Hendrick could not agree to Abouemara’s proposal, he offered to take it to the
town council. He testified that Abouemara “was in agreement” with doing so and with a “vote
being taken” by the council. The town clerk was within earshot for that conversation.
1
After the incident at issue here, the sheriff’s office executed a search warrant, seizing
cash and several of the gaming machines from the store.
-2-
The town council meeting occurred on December 9, 2019. Chief Foster attended in
person and recorded portions of the meeting on his work phone. His recording was admitted into
evidence. Hendrick brought up Abouemara’s proposal at the end of his manager’s report to the
council. Although the recording is poor, Hendrick can be heard relating Abouemara’s proposal
as follows:
He has contacted us before, and I told him I’d get back with him.
He’s contacted the town office again. He wants to make a monthly
donation of $500 per month to the town, but he wants in return a
letter in support of his machines that he has at his place of
business.
It is undisputed that the town council did not accept Abouemara’s proposal. Chief Foster
testified that the council voted against it with a “unanimous no.” Hendrick did not recall that a
vote was taken but was clear that the councilmembers were not interested. The recording
features the chair calling for a motion and a second on the question (possibly to lay the question
on the table), but the recording is too garbled to make out. After the council declined the
proposal, laughter can be heard on the recording after one person joked, “Well, we do need to fix
the porch.”
When Abouemara next visited the town manager’s office, Hendrick told him that the
town council had rejected his proposal. Abouemara said that he still wanted to donate $200 to
the town. Abouemara had presented Hendrick with a $200 check, payable to “Town of La
Crosse,” and drawn on the account of his Mini Mart business. But Chief Foster had advised
Hendrick not to deposit the check. The clerk issued a receipt showing that the transaction was
“void.”
Abouemara was indicted on two counts of bribery in violation of Code § 18.2-447. One
indictment (CR20-224-00) charged him with bribery of a public servant during the period
“October 1, 2019 through December 9, 2019.” A second (CR20-101-00) charged him with
-3-
bribery for a “shorter date range” that was “just those few days in December,” apparently
corresponding to Abouemara’s meeting with Hendrick, after the town council had met, when
Abouemara still wanted to donate $200.2
At the bench trial that followed, the trial court granted Abouemara’s motion to strike the
second indictment, but not the first indictment. As to the first indictment, Abouemara’s attorney
argued that the Commonwealth had failed to prove bribery because it had not established “a quid
pro quo” and the proposal was made in public, rather than in “a sneaky, clandestine, non-public
way.” “This is not typically a bribery case,” he said, “where it’s out in the open.” While
conceding his client’s conduct was “suspicious,” Abouemara’s counsel argued that it did not
“rise to the level of proving bribery.”
The prosecutor responded that the statutory elements of Code § 18.2-447 were satisfied.
She referenced both subsections (1)(a) and (1)(b) of the statute. Subsection (1)(a), she said,
prohibited paying a “pecuniary benefit as consideration for or to obtain or influence the
recipient’s decision, recommendation, vote, or other exercise of discretion as a public servant or
party official.” She also argued that the evidence satisfied (1)(b), “the further subsection.”3
The trial court found Abouemara guilty of bribery on the remaining indictment. It found
that, with his business under investigation, Abouemara offered to pay money to the town in
exchange for the town giving him a letter of support for his gaming machines. Abouemara had
“coupled” his offer of money to what he wanted in return. After convicting him of bribery under
Code § 18.2-447, the court sentenced Abouemara to five years’ incarceration, with all five years
suspended, and a one-year term of probation. Abouemara noted a timely appeal.
2
The second indictment is not in the record.
3
Although the indictment included language drawn from subsection (1)(b) of Code
§ 18.2-447, rather than subsection (1)(a), Abouemara did not challenge the validity of the
indictment or object to any variance between the indictment and the proof.
-4-
ANALYSIS
When, as here, an appellant challenges the sufficiency of the evidence supporting his
conviction, “[t]he judgment of the trial court is presumed correct and will not be disturbed unless
it is plainly wrong or without evidence to support it.” Smith v. Commonwealth, 296 Va. 450, 460
(2018) (alteration in original) (quoting Perkins, 295 Va. at 327). “In such cases, ‘[t]he Court
does not ask itself whether it believes that the evidence at the trial established guilt beyond a
reasonable doubt.’” McGowan v. Commonwealth, 72 Va. App. 513, 521 (2020) (alteration in
original) (quoting Secret v. Commonwealth, 296 Va. 204, 228 (2018)). “Rather, the relevant
question is whether ‘any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.’” Vasquez v. Commonwealth, 291 Va. 232, 248 (2016)
(quoting Williams v. Commonwealth, 278 Va. 190, 193 (2009)). “If there is evidentiary support
for the conviction, ‘the reviewing court is not permitted to substitute its own judgment, even if its
opinion might differ from the conclusions reached by the finder of fact at the trial.’” McGowan,
72 Va. App. at 521 (quoting Chavez v. Commonwealth, 69 Va. App. 149, 161 (2018)).
Laws against bribery have a long pedigree. At common law, bribery was an “offence
against public justice[,] which is when a judge, or other person concerned in the administration
of justice, takes any undue reward to influence his behaviour in his office.” 4 William
Blackstone, Commentaries *139. Blackstone condemned bribery as “calculated for the genius of
despotic countries[,] where the true principles of government are never understood.” Id.Virginia’s colonial general assembly prohibited public officials from accepting bribes in the form
of “money” or “any public entertainment of meat or drink.” 1775 Va. Acts ch. 4, § 9. Those
who violated the law were “disqualified” from public office. Id. After independence, the
General Assembly enacted a law prohibiting judges and State and local public officials from
taking “any manner of gift . . . or reward for doing his office,” other than a government salary.
-5-
1786 Va. Acts ch. 52. A violator was liable for “the treble value of that he hath received, shall
be amerced [fined] and imprisoned at the discretion of a jury, and shall be discharged from his
office forever.” Id.
The current version of Virginia’s laws prohibiting bribery of State and local public
officials is found in Title 18.2, Article 3 (“Bribery of Public Servants and Party Officials”),
enacted in 1968. See 1968 Va. Acts ch. 552 (codified as amended at Code §§ 18.2-446 to
18.2-450). Bribery is a Class 4 felony. Code § 18.2-449. Apart from a possible prison sentence
of up to ten years, see Code § 18.2-10(d), a person convicted of bribing a public official is
“forever incapable of holding any public office in this Commonwealth,” Code § 18.2-449.
Code § 18.2-447 defines bribery to prohibit a person from offering a bribe (subsection
one), accepting a bribe (subsection two), or soliciting a bribe (subsection three). “The
comprehensive and inclusive language of the statute . . . prohibits three specific acts, the giving
of a bribe, the offer of a bribe and the promise of a bribe, any one of which is a complete crime
in itself.” Mendez v. Commonwealth, 220 Va. 97, 100 (1979) (quoting Ford v. Commonwealth,
177 Va. 889, 893 (1941)).
The offering of a bribe under subsection one is implicated here. It defines two ways to
commit the offense, one involving the offer of a “pecuniary benefit” (subsection (1)(a)), and the
other involving the offer of “any benefit” (subsection (1)(b)):
A person shall be guilty of bribery under the provisions of this
article:
(1) If he offers, confers or agrees to confer upon another
(a) any pecuniary benefit as consideration for or to obtain
or influence the recipient’s decision, opinion,
recommendation, vote or other exercise of discretion as a
public servant or party official, or
(b) any benefit as consideration for or to obtain or influence
either the recipient’s decision, opinion, recommendation,
-6-
vote or other exercise of official discretion in a judicial or
administrative proceeding or the recipient’s violation of a
known legal duty as a public servant or party official . . . .
Code § 18.2-447(1).
The term “benefits” is defined as “a gain or advantage, or anything regarded by the
beneficiary as a gain or advantage.” Code § 18.2-446(1). The benefit does not have to be
conferred on the person receiving the bribe. It can be “a benefit to any other person or entity in
whose welfare he is interested.” Id. The term “pecuniary benefit” means “a benefit in the form
of money, property, commercial interest or anything else the primary significance of which is
economic gain.” Code § 18.2-446(3). The term “public servant” is defined as “any officer or
employee of this Commonwealth or any political subdivision thereof, including members of the
General Assembly and judges, and any person participating as a juror, advisor, consultant or
otherwise, in performing any governmental function.” Code § 18.2-446(4).
Taken in the light most favorable to the Commonwealth, the evidence sufficed to show
that Abouemara violated subsection (1)(a) of the statute because he “offer[ed] . . . to confer upon
another . . . any pecuniary benefit as consideration for or to obtain or influence the recipient’s
decision, opinion, recommendation, vote or other exercise of discretion as a public servant.”
Code § 18.2-447(1)(a). Abouemara offered to pay $500 a month to the town council (whether
directly or through the Friends of La Crosse) in exchange for the town council’s letter of support
for his gaming machines. The testimony showed that Abouemara knew he was asking the
councilmembers to “vote” on his proposal. The councilmembers may or may not have formally
voted on the proposal, but they definitively decided not to accept it. In any case, the evidence
showed that Abouemara offered to confer a “pecuniary benefit,” “upon another,” “to obtain or
influence” the councilmembers’ “decision, opinion, recommendation, [or] vote,” to issue a letter
endorsing his gaming machines.
-7-
Abouemara conceded at oral argument that the text of the offer as reported by Hendrick
to the town council met the definition of bribery under Code § 18.2-447(1). But Abouemara
argues that his proposal was not a “quid pro quo” and did not constitute a bribe because it was
not done in a clandestine manner. We assume without deciding that these arguments are fairly
encompassed within his single assignment of error: that there was insufficient evidence to prove
that he acted “[1] with an intent to corrupt or [2] an intent to unlawfully influence or undermine
the proper administration of justice.” Even so, we find no merit in those claims.4
To start, there was sufficient evidence to support the trial court’s conclusion that
Abouemara proposed a quid pro quo—a Latin phrase that means “something for something.”
Quid pro quo, Black’s Law Dictionary (11th ed. 2019). As reported by Hendrick,5 Abouemara
offered to “make a monthly donation of $500 per month to the town, but he wants in return a
letter in support of his machines that he has at his place of business.” That evidence supported
4
We disagree with our dissenting colleague’s suggestion that Abouemara’s conviction
should be reversed on the ground that the indictment charged a violation of only Code
§ 18.2-447(1)(b), not subsection (1)(a), and that the evidence failed to prove a violation of
subsection (1)(b). As noted above, Abouemara never argued below that the indictment was
limited to subsection (1)(b), nor did he assign error on that ground, nor did he advance the
dissent’s argument on brief or at oral argument here. Moreover, the prosecutor specifically
relied on subsection (1)(a) at trial, and Abouemara himself addressed only subsection (1)(a) in
his motion to set aside the verdict. Thus, Abouemara plainly forfeited the subsection (1)(b)
argument that the dissent raises. See Commonwealth v. Bass, 292 Va. 19, 27 n.4 (2016) (“It is
well settled that the question of a variance between an indictment and the proof offered at trial is
subject to the contemporaneous objection rule.”); Banks v. Commonwealth, 67 Va. App. 273,
289-90 (2017) (holding that the failure to assign error as required by the rules of court waives a
challenge that the charging document was defective or that there was a fatal variance between
the charging document and the proof). Because the evidence sufficed to prove a violation of
subsection (1)(a), we do not address the dissent’s arguments about subsection (1)(b).
5
The fact that the offer was communicated through Hendrick, the town manager, does
not matter because Abouemara authorized Hendrick to present the offer to the council. Accord
Mendez, 220 Va. at 99, 101 (upholding bribery conviction where one prison guard
communicated the defendant’s offer to another prison guard). Abouemara concedes on brief
that, at the very least, he “acquiesce[d]” in Hendrick’s taking Abouemara’s proposal to the
council.
-8-
the court’s finding that Abouemara “coupled” (1) his offer of $500 a month to the town council
to (2) receiving a letter from the council supporting his gaming machines. The offer was “a
complete crime in itself.” Mendez, 220 Va. at 100 (quoting Ford, 177 Va. at 893).
We reject Abouemara’s claim that, while his proposal was “suspicious,” it was not a
crime because it was made “in an open and notorious way,” given that he knew “Mr. Hendrick[]
[was] going to take it to a whole group of people at town council.” Nothing in the text of Code
§ 18.2-447 requires that the bribe be offered secretly or surreptitiously. If that were true, the
most unseemly, open, and notorious bribes offered to public servants in plain view would be
immunized from prosecution.
Nor does the statute require the prosecution to prove corruptness as an element of the
offense. To be sure, other bribery statutes sometimes state that the defendant must have acted
“corruptly.” See Code § 18.2-438 (making it a crime for any person to “corruptly give, offer or
promise” a bribe to “any executive, legislative or judicial officer, sheriff or police officer, or to
any candidate for such office”); Code § 18.2-441 (making it a crime for any “commissioner,
auditor, arbitrator, umpire or juror [to] corruptly take or receive” a bribe). The predecessor of
Code § 18.2-438, construed in Ford, also included the term “corruptly.” See 177 Va. at 891(construing Code § 4496 (1936)).6 Whatever its meaning in those statutes, however, the General
Assembly chose not to use corruptly in Code § 18.2-447. And because the General Assembly
“used specific language in one instance but omit[ted] that language or use[d] different language
when addressing a similar subject elsewhere in the Code,” we “must presume that the difference
in the choice of language was intentional.” Morgan v. Commonwealth, ___ Va. ___, ___ (Dec.
6
Although our caselaw has not defined corruptly as used in those statutes—and we do
not do so here—the term usually means “[i]n a corrupt or depraved manner; by means of
corruption or bribery. As used in criminal-law statutes, corruptly usu[ally] indicates a wrongful
desire for pecuniary gain or other advantage.” Corruptly, Black’s Law Dictionary, supra.
-9-
29, 2022) (quoting Zinone v. Lee’s Crossing Homeowners Ass’n, 282 Va. 330, 337 (2011)).
Omitting an independent “corruptness” element from the bribery provisions in Code § 18.2-447
was a proper exercise of legislative judgment. For the General Assembly enjoys “the prerogative
to regulate the permissible scope of interactions between state officials and their constituents.”
McDonnell v. United States, 579 U.S. 550, 576 (2016).
We also reject Abouemara’s claim that his attempted donation of $200 after the town
council rejected his original offer showed that the original offer was not a bribe. For one thing,
the bribe was a completed crime once communicated to the town council; the “offer or promise
of a gift, constitutes bribery on the part of the offeror or promisor as fully and completely as if a
corrupt gift had been made and accepted.” Mendez, 220 Va. at 100-01.
For another, we must take “all fair inferences” from the facts in the light most favorable
to the Commonwealth, Perkins, 295 Va. at 324, and those inferences here incriminate
Abouemara. For instance, his paying $200 once, rather than $500 every month, could well have
signaled punishment for the council’s failure to accept the bribe. Or the donation could have
been a fallback effort to curry favor. Or an attempt to cover up the crime. The Commonwealth
argued that the smaller, one-time donation confirmed that the earlier offer—$500 a month in
exchange for the letter—was, in fact, a quid pro quo. And Abouemara’s counsel agreed at oral
argument that such an inference would be reasonable, taking the inferences in the light most
favorable to the Commonwealth.
Abouemara asks on brief that we discount Hendrick’s credibility as a witness. Hendrick
was uncertain about when he received the $200 check. The check was dated as of October 26,
2019. Hendrick first testified that Abouemara gave it to him after the December 9 town council
meeting, when Abouemara said he still wanted to make a donation. Hendrick then remembered
- 10 -
that Abouemara might have given it to him before the town council meeting, as Hendrick
distinctly recalled that Foster told him at that meeting not to deposit the check.
Assessing witness credibility was the task of the trial court, which “applaud[ed]”
Hendrick “for his honesty,” finding the question of when the check was tendered irrelevant to
whether Abouemara offered a bribe. We cannot disturb the trial court’s credibility determination
unless Hendrick’s testimony was “inherently incredible, or so contrary to human experience as to
render it unworthy of belief.” Kelley v. Commonwealth, 69 Va. App. 617, 626 (2019) (quoting
Johnson v. Commonwealth, 58 Va. App. 303, 315 (2011)). And Abouemara does not and could
not persuasively claim that, under that standard, Hendrick’s testimony should have been
disregarded.
CONCLUSION
The crime of bribery is complete when a defendant “offers . . . any pecuniary benefit as
consideration for or to obtain or influence the recipient’s decision, opinion, recommendation,
vote or other exercise of discretion as a public servant.” Code § 18.2-447(1)(a). Because there
was enough evidence to prove beyond a reasonable doubt that Abouemara did that here, the trial
court did not err in convicting him.
Affirmed.
- 11 -
Chaney, J., dissenting.
On appeal of his conviction for bribery of a public servant, Mamdoh Abouemara contends
that the evidence is insufficient to prove that he acted with the requisite intent for bribery. Because
the evidence is insufficient to satisfy the intent element for bribery under Code § 18.2-447, I would
reverse and vacate the conviction. Therefore, I respectfully dissent from the majority’s judgment
affirming the bribery conviction.
BACKGROUND
Abouemara owned a convenience store in the Town of La Crosse (town). In addition to the
merchandise for sale, the store had a deli and several gaming machines.
In October 2019, Abouemara went to the office of the town manager, Frank Hendrick, and
had an unscheduled meeting with Hendrick. Hendrick was a part-time employee of the town
council, whose members are elected officials. As town manager, Hendrick was in charge of the
town’s budget and daily operations. Hendrick also participated in the town council’s meetings by
presenting proposals for a vote by council members. Hendrick was not a voting member of the
town council.
At the October 2019 meeting with Hendrick, Abouemara said, “I’d like to talk to you about
making some donations to the Town of La Crosse.” Abouemara also said that “he would like a
letter of support for his machines and business.” Abouemara told Hendrick that “his lawyer advised
him that it would be nice to get [a letter of support] from the town.” Hendrick testified that
Abouemara “came in and said, you know, I would like to make a donation to the town, but my
lawyer says he would like to get a letter of support for my machines and my business, also.” The
trial court explicitly found that Abouemara requested the town’s letter of support on the advice of
his attorney.
- 12 -
In response to Abouemara’s expressed interest in making donations to the town, Hendrick
informed Abouemara that the town could not take donations directly, but donations could be made
to Friends of La Crosse, a non-profit organization that disperses donations for the betterment of the
town. In response to Abouemara’s request for the town’s letter of support for his business and
gaming machines, Hendrick “said [he] could not do that as a town manager, that [he] would take
that proposal to the town council.” Abouemara agreed when Hendrick said he would present
Abouemara’s proposal to the town council for a vote.
At the next town council meeting, on December 9, 2019, Hendrick told the members of the
town council that Abouemara “wants to make a monthly donation of $500 per month to the Town,
but he wants in return a letter of support for his machines that he has at his place of business.” The
town council unanimously voted to reject this proposal.
Two days after the December 2019 town council meeting, Abouemara returned to
Hendrick’s office and Hendrick informed him that the town council voted against his proposal.
Abouemara replied that he still wanted to make a donation. The town’s clerk-treasurer gave
Abouemara a receipt for a $200 check from Abouemara’s business to the town. The check is dated
October 26, 2019, but the receipt for the check is dated December 11, 2019. Hendrick repeatedly
testified that Abouemara provided the check at their second encounter, after the council meeting.
But Hendrick also testified that during the council meeting, the chief of police, Kendall Foster,
advised him not to cash Abouemara’s check because the matter was under investigation. Hendrick
acknowledged that he could not recall whether Abouemara provided the $200 check before or after
the town council rejected his proposal.
On December 15, 2019, the police executed a search warrant to search Abouemara’s store
and seized several gaming machines.
- 13 -
In September 2020, Abouemara was indicted on two charges of bribery. A bench trial on
the bribery charges was held in August 2021. After the Commonwealth rested its case, Abouemara
moved to strike on the ground that the evidence failed to prove that he had the requisite intent for
bribery. The trial court granted the motion to strike the evidence only on the second charge of
bribery. Abouemara presented no evidence and renewed his motion to strike. The trial court
concluded that because Abouemara, through Hendrick, made his offer prior to the town council
meeting, it did not matter whether Abouemara delivered the $200 check before or after the council
meeting. The trial court explicitly found that Abouemara “coupled the request with the offer,” and
found Abouemara guilty of bribery as charged in the first indictment.
In January 2022, the trial court heard Abouemara’s motion to set aside the verdict.
Abouemara argued that the evidence failed to prove that he intended to corrupt or bribe anyone.
Following oral arguments, the trial court denied the motion to set aside the verdict.
ANALYSIS
A. Bribery under Code § 18.2-447
Pursuant to Code § 18.2-447(1), a person is guilty of bribery:
If he offers, confers or agrees to confer upon another
(a) any pecuniary benefit as consideration for or to obtain or
influence the recipient’s decision, opinion, recommendation, vote or
other exercise of discretion as a public servant or party official, or
(b) any benefit as consideration for or to obtain or influence either
the recipient’s decision, opinion, recommendation, vote or other
exercise of official discretion in a judicial or administrative
proceeding or the recipient’s violation of a known legal duty as a
public servant or party official[.]
Code § 18.2-446(3) defines pecuniary benefit as “a benefit in the form of money, property,
commercial interest or anything else the primary significance of which is economic gain.”
(Emphasis added). Given this statutory definition of pecuniary benefit, a bribe in the form of
- 14 -
pecuniary benefit necessarily involves offering, conferring, or agreeing to confer economic gain on
another in consideration for or with the intent “to obtain or influence the recipient’s decision,
opinion, recommendation, vote or other exercise of discretion as a public servant or party official.”
Code § 18.2-447(1)(a).
In addition to criminalizing bribes in the form of pecuniary benefit, Code § 18.2-447(1) also
prohibits offering, conferring, or agreeing to confer upon another “any benefit” in consideration for
or with the intent “to obtain or influence either the recipient’s decision, opinion, recommendation,
vote or other exercise of official discretion in a judicial or administrative proceeding or the
recipient’s violation of a known legal duty as a public servant or party official[.]” Code
§ 18.2-447(1)(b) (emphasis added). Code § 18.2-446(1) defines benefits as “a gain or advantage, or
anything regarded by the beneficiary as a gain or advantage, including a benefit to any other person
or entity in whose welfare he is interested.”7 (Emphasis added). Thus, bribery of a public servant
under Code § 18.2-447(1) does not necessarily involve an offer or transaction that benefits the
public servant personally.
B. Intent to Corrupt
Abouemara argues on appeal that the evidence was insufficient to prove that he acted with
the requisite intent for bribery under Code § 18.2-447 because “the evidence was insufficient to
show that he intended to corrupt or to unlawfully influence Mr. Hendrick[] or the town council, or
to otherwise undermine the proper and orderly administration of justice.” Opening Br. 10-11. The
Commonwealth responds, in part, that “[t]he plain language of Code § 18.2-447 . . . does not require
an intent to corrupt” because Code § 18.2-447 does not contain the limiting term “corruptly,” which
7
Benefits as defined in Code § 18.2-446(1) “shall not mean an advantage promised
generally to a group or class of voters as a consequence of public measures which a candidate
engages to support or oppose.”
- 15 -
is included in other bribery statutes.8 See, e.g., Code § 18.2-438 (“If any person corruptly give,
offer or promise to any executive, legislative or judicial officer, sheriff or police officer, or to any
candidate for such office . . . any gift or gratuity, with intent to influence his act, vote, opinion,
decision or judgment . . . .” (emphasis added)). By omitting the term corruptly from the definition
of bribery in Code § 18.2-447, the General Assembly excluded a requirement of corrupt motive as
an element of bribery of a public servant or party official. See Virginia Elec. and Power Co. v. State
Corp. Comm’n, 300 Va. 153, 163 (2021) (“[This Court] ‘presume[s] that the legislature chose, with
care, the specific words of the statute’ and that ‘[t]he act of choosing carefully some words
necessarily implies others are omitted with equal care.’” (third alteration in original) (quoting
Wal-Mart Stores East, LP v. State Corp. Comm’n, 299 Va. 57, 70 (2020))). However, a corrupt
motive is different from an intent to corrupt. See Brown v. Commonwealth, 238 Va. 213, 221
(1989) (“Motive is the inducing cause, while intent is the mental state with which the criminal act is
committed.” (quoting C. Torcia, Wharton’s Criminal Evidence § 170 (13th ed. 1972))). The
General Assembly’s omission of the term corruptly from Code § 18.2-447 precludes a defense
based on an offeror’s benevolent motive; it does not eliminate the element of intent to corrupt from
the crime of bribery. As our Supreme Court recognized in Ford v. Commonwealth, 177 Va. 889(1941), “the offense [of bribery] is the intention to poison and corrupt the source and fountain of
justice.” Id. at 894.
Code § 18.2-447(1)(a) provides that the requisite intent for bribery is the intent “to obtain or
influence the recipient’s decision, opinion, recommendation, vote or other exercise of discretion as a
public servant.” Code § 18.2-447(1)(b) provides that the requisite intent for bribery is the intent to
obtain or influence “the recipient’s decision, opinion, recommendation, vote or other exercise of
official discretion in a judicial or administrative proceeding or the recipient’s violation of a known
8
See Appellee’s Br. 7 n.4.
- 16 -
legal duty as a public servant.” One who offers to confer a benefit upon a public servant with such
intent thereby attempts to pervert the exercise of official discretion and induce the recipient’s abuse
of his or her official position or role. Such abuse of power by a public servant is manifest
corruption. Thus, although Code § 18.2-447(1) does not include the phrase “intent to corrupt,”
evidence of the requisite intent for bribery under Code § 18.2-447(1) constitutes evidence of an
intent to corrupt. See Mendez v. Commonwealth, 220 Va. 97, 101 (1979) (“The gist of the offense
[of bribery] is the criminal intent to undermine the proper and orderly administration of justice. The
crime is committed by the making of the corrupt offer.” (quoting Ford, 177 Va. at 893)).
In finding that Abouemara had the requisite intent for bribery, the trial court held that the
gravamen of his offense was making a simultaneous offer and request that “coupled” his offer of
monetary donations with his request for the town’s letter of support for his business and gaming
machines. The trial court told Abouemara, “If you’d just asked for that letter of recommendation
and support of your business we wouldn’t be here today. Nothing wrong with asking for that.” The
trial court further advised Abouemara, “[I]f you’d gone down the street and mailed them a check
you’d been fine.” But the trial court found that Abouemara violated the bribery statute because he
“coupled the request with the offer.”
The majority’s opinion agrees with the trial court that proof that defendant conditioned an
otherwise lawful monetary offer to the town on an otherwise lawful request for the town’s letter of
support is sufficient to find that defendant acted with the requisite intent for bribery. I disagree.
Although the intent necessary to sustain a bribery conviction under Code § 18.2-447(1) is in the
nature of a quid pro quo requirement, the requisite intent is not necessarily satisfied by offering a
quid pro quo.
It is widely recognized that the requisite intent for the crime of bribery is an intent to
influence a public servant “to do or not to do something in the line of his official duty.” See
- 17 -
Taylor v. State, 156 S.E. 623, 625 (Ga. 1931). Code § 18.2-447, properly construed, accords with
the majority view that public servant bribery necessarily pertains to the public servant’s
performance of official duties.9 As a penal statute, Code § 18.2-447 “must be strictly construed
9
The laws of 42 other states recognize that public servant bribery is necessarily related to
the recipient’s duties as a public servant. See Reed v. State, 372 So. 2d 876, 877 (Ala. 1979)
(bribery requires intent “to influence [public officer] in the performance of any of his public or
official duties”); State v. Hendricks, 186 P.2d 943, 947 (Az. 1947) (“there can be no bribery of
an officer outside the scope of his official duty”); Ark. Const. art. V, § 35 (defining bribery as
requiring intent “to influence [public official’s] action in the performance or non performance of
his public or official duty”); People v. Longo, 259 P.2d 53, 56 (Ca. 1953) (recognizing it is
“essential to the crime of bribery” that the officer’s action “falls within the general scope of his
duties”); Colo. Const. art. XII, § 7 (defining bribery as an offer, gift, or promise “to influence [a
public officer] in the performance of any of his public or official powers or duties”); Del. Const.
art. 2, § 22 (defining bribery as a gift, offer, or promise “for the purpose of influencing [a public
official] in the performance of any of his or her official or public duties”); Greene v. State,
263 So. 2d 194, 196-97 (Fla. 1972) (Florida bribery statute requires proof that the action sought
to be influenced is within the official duties of the official); Taylor v. State, 156 S.E. 623, 625
(Ga. Ct. App. 1931) (defining bribery as requiring intent to influence a public official “in the
discharge of his duty in any office of government or of justice”); Territory v. Lau Hoon, 23 Haw.
616, 619 (1917) (“The gist of bribery is the corrupting or attempt to corrupt an official in the
discharge of his duty.”); People v. Patillo, 54 N.E.2d 548, 553 (Ill. 1944) (“The gist of the
offense of bribery is the giving to, and receiving or accepting of money or other valuable thing
by, a public officer to influence him with respect to the performance of his official duty.”);
Stuckey v. State, 560 N.E.2d 88, 92 (Ind. Ct. App. 1990) (“the gravamen of the offense of bribery
is the soliciting or receiving of money by an official to influence him with respect to his official
duties”); Dishon v. Smith, 10 Iowa 212, 221 (Iowa 1859) (“Bribery may be defined to be the
giving . . . to another, anything of value or any valuable service, intended to influence him in the
discharge of a legal duty.”); Kan. Stat. Ann. § 21-6001 (defining bribery as requiring “intent to
improperly influence a public official” in “the performance or omission of performance of the
public official’s powers or duties”); Com. v. Funk, 234 S.W.2d 957, 958 (Ky. Ct. App. 1950)
(defining bribery as requiring intent “to influence [any public officer’s] behavior in the discharge
of his duty”); State v. Smith, 212 So. 2d 410, 413 (La. 1968) (“‘public bribery’ . . . can mean
nothing more than to influence [a public servant] with respect to the duties of his particular
office”); State v. Miles, 36 A. 70, 72 (Me. 1896) (bribery is the crime of offering any undue
reward or payment to anyone entrusted with a public duty “to influence his behavior in the
discharge of his duty”); Richardson v. State, 492 A.2d 932, 934 (Md. Ct. Spec. App. 1985)
(“Both under the [Maryland bribery] statute and the common law it is essential for a conviction
of bribery that the briber must make an attempt to influence the bribee in the performance of his
‘official,’ ‘public’ or ‘legal’ duty.” (quoting State v. Canova, 365 A.2d 988, 990 (Md. Ct. App.
1976)); Commonwealth v. Degnan, 73 N.E.3d 823, 828 (Mass. Ct. App. 2017) (a bribe is “for the
purpose of inducing [a public officer] to violate his official duty”); People v. Ritholz, 103
N.W.2d 481, 486 (Mich. 1960) (the purpose of bribery statutes is to prevent the corruption of
public officials through “attempt[s] to pervert the exercise of honest judgment in the discharge of
their duties”); Minn. Stat. Ann. § 609.42 (bribery defined as requiring intent “to influence [a
- 18 -
public officer’s or employee’s] performance of the powers or duties as such officer or
employee”); State v. Adcox, 278 S.W. 990, 991 (Mo. 1925) (“In order to bribe an officer, he must
be in the discharge of a legal or official duty.” (citation omitted)); State v. Beazley, 250 P. 1114,
1114 (Mont. 1926) (bribery requires intent to influence public official “in the performance of his
official and public duties”); State v. Kao, 531 N.W.2d 555, 557 (Neb. Ct. App. 1995) (bribery of
a public servant or peace officer requires “intent to influence that public servant or peace officer
to violate his public duty, or oath of office . . .” (quoting Nebraska § 28-917)); State v.
O’Donnell, 273 A.3d 458, 462 (N.J. App. Div. 2022) (one who commits bribery intends to
“influence matters in connection with an official duty”); State v. Hogervorst, 566 P.2d 828, 830
(N.M. Ct. App. 1977) (affirmed bribery conviction identifying the crime as “the payment of
money to the [public official] with the intent to influence the [public official] in carrying out his
duties”); People v. Dioguardi, 168 N.E.2d 683, 692 (N.Y. Ct. App. 1960) (“the essence of
bribery is the voluntary giving of something of value to influence the performance of official
duty” (citation omitted)); State v. Greer, 77 S.E.2d 917, 920 (N.C. 1953) (bribery is intended “to
influence the recipient’s action as a public officer or official . . . in the performance of any
official duty required of him”); State v. La Flame, 152 N.W. 810, 812 (N.D. 1915) (“The
scope . . . of bribery is as broad as the duties of the officer who accepts the bribe.” (alteration in
original) (citation omitted)); State v. Knight, 749 N.E.2d 761, 766 (Ohio Ct. App. 2000)
(conviction for bribery of public servant requires proof of intent to influence the public servant
with respect to the discharge of official duty); Allen v. State, 72 P.2d 516, 519 (Okla. Crim. Ct.
App. 1937) (criminal intent in bribery is the intent “to influence corruptly an official in the
discharge of his duty”); State v. Coffey, 72 P.2d 35, 37 (Or. 1937) (bribery statute “prohibits
judicial, legislative, and executive officers from receiving moneys, valuables, etc., which are
intended to influence them in the discharge of their duties”); Com. v. Clarke, 457 A.2d 970, 972
(Pa. Super. Ct. 1983) (elements of bribery statute were satisfied where defendant “conferred a
benefit for the improper use of the officer’s duty as a public servant”); State v. Nadeau, 105 A.2d
194, 198 (R.I. 1954) (bribery does not encompass acts “wholly outside the scope of [a public
servant’s] official powers, duties and rights”); State v. Cole, 92 S.E. 624, 624 (S.C. 1917) (a
bribe is “intended to influence one in the discharge of a legal duty”); State v. Ferguson, 395
S.E.2d 182, 183 (S.C. 1990) (holding jury was properly instructed that mental state required for
bribery is “the intent to influence [an] officer’s act or judgment . . . to get him to fail to perform
his duties in whatever office he is holding and whatever duty he is required to exercise”); S.D.
Const. art. III, § 28 (defining bribery as requiring intent “to influence [executive or judicial
officer] in the performance of any of his official or public duties”); Lee v. State, 254 S.W.2d 747,
748 (Tenn. 1953) (affirming bribery conviction where money “was offered as an inducement to
cause the said [officer] to refrain and desist from performing his duty as such officer” (internal
quotation omitted)); Hubbard v. State, 668 S.W.2d 419, 420 (Tex. Ct. App. 1984) (“The gist of
the [bribery] statute is that the conferring of a benefit upon a public servant as consideration for
violation of one of his duties is an offense.”); State v. Smith, 48 A. 647, 652 (Vt. 1900) (to be
guilty of bribery, sheriff must have intended “to be corruptly influenced thereby in the discharge
of his official duties”); State v. Austin, 400 P.2d 603, 607 (Wash. 1965) (“[W]here the public
officer has no official concern or duty with respect to the matter whereof he is influenced, a vital
element of the crime of bribery is wanting.”); State v. King, 138 S.E. 330, 331 (W. Va. 1927)
(bribery defined as giving or offering any “thing of value to any officer . . . as a consideration for
the performance of, or the failure to perform, any duty of such officer . . .”); State v. Hibicke, 56
N.W.2d 818, 820 (Wis. 1953) (holding that bribery statute was not violated where “constable had
no duty with respect to” the action sought by the offeror); Wyo. Const. art. III, § 43 (bribery
- 19 -
according to the rule of lenity.” Blake v. Commonwealth, 288 Va. 375, 386 (2014). “[I]f the
language of the statute permits two ‘reasonable but contradictory constructions,’ the statutory
construction favorable to the accused should be applied.” Id. (quoting Wesley v. Commonwealth,
190 Va. 268, 276 (1949)). Thus, to the extent that Code § 18.2-447(1) can be reasonably construed
as requiring an intent to influence the recipient’s performance of official duties, the statutory
construction in this dissent must be adopted instead of the majority’s construction.
To satisfy the intent element under subsection (1)(a) of Code § 18.2-447, a quid pro quo
must be offered with the intent to influence the recipient’s “decision, opinion, recommendation,
vote or other exercise of discretion as a public servant.” Code § 18.2-447(1)(a) (emphasis added).
A public servant is defined as “any officer or employee of this Commonwealth or any political
subdivision thereof, including members of the General Assembly and judges, and any person
participating as a juror, advisor, consultant or otherwise, in performing any governmental
function . . . .” Code § 18.2-446(4) (emphasis added). A municipality’s performance of a
governmental function involves “exercising the powers and duties of government conferred by law
for the general benefit and well-being of its citizens.” Massenburg v. City of Petersburg, 298 Va.
212, 218 (2019) (quoting Carter v. Chesterfield Cty. Health Comm’n, 259 Va. 588, 593 (2000)).
Thus, the statutory intent to influence a public servant’s exercise of discretion as a public servant is
an intent to influence a public servant’s exercise of discretion in the performance of official duties.
To satisfy the intent element under subsection (1)(b) of Code § 18.2-447, a quid pro quo
must be offered with the intent to influence “the recipient’s decision, opinion, recommendation,
vote or other exercise of official discretion in a judicial or administrative proceeding or the
recipient’s violation of a known legal duty as a public servant.” Code § 18.2-447(1)(b). The
defined as “offer[ing], giv[ing] or promis[ing] any money or thing of value, testimonial, privilege
or personal advantage, to any executive or judicial officer or member of the legislature, to
influence him in the performance of any of his official duties”).
- 20 -
statutory terms decision, opinion, recommendation, and vote are qualified and limited by the phrase
“other exercise of official discretion.” Thus, the requisite intent for bribery under Code
§ 18.2-447(1)(b) is an intent to influence a decision, opinion, recommendation, or vote that qualifies
as an exercise of official discretion, or an intent to influence another exercise of official discretion.
A town council member exercises official discretion only when acting or deciding in his or
her official capacity as a public servant in the performance of a governmental function. See
McDonnell v. United States, 579 U.S. 550, 574 (2016) (holding that official act in the context of the
federal bribery statute “must involve a formal exercise of governmental power”). As noted above, a
municipality’s performance of a governmental function involves “exercising the powers and duties
of government conferred by law for the general benefit and well-being of its citizens.” Massenburg,
298 Va. at 218. Since the performance of a governmental function necessarily involves the exercise
of official duty, the exercise of official discretion necessarily relates to acts and decisions “within
the range of official duty.” United States v. Birdsall, 233 U.S. 223, 230 (1914) (construing official
action for purposes of the federal bribery statute).
On the trial court’s reading of the bribery statute, which the majority adopts, one would
commit a felonious act by offering a monetary donation to benefit one’s community in return for
any decision or action by a public servant, including any lawful, innocuous decisions and actions
that are consistent with the public servant’s performance of his or her official duties. To construe
the bribery statute as criminalizing any proposed quid pro quo would absurdly criminalize offers of
monetary donations to benefit the community in return for a letter of thanks or a birthday greeting to
the community’s oldest citizen. By construing the bribery statute to criminalize any proposal in
which there is an exchange of benefits between the town and a private individual, the majority
converts the lawful act of proposing a contract to the town council into a criminal act. The General
Assembly did not intend such absurd results. See Taylor v. Commonwealth, 298 Va. 336, 342
- 21 -
(2020) (“[A] statute should never be construed in a way that leads to absurd results.” (quoting
Lawlor v. Commonwealth, 285 Va. 187, 237 (2013))).
C. Insufficient Evidence of Criminal Intent for Bribery
Given that both prongs of Code § 18.2-447(1) require proof of an intent to influence a public
servant in the exercise of discretion in the performance of his or her official duties, the
Commonwealth was required to prove that providing or withholding a letter of support for a private
business and its gaming machines was within the scope of the official duties of the public servant
who was allegedly bribed.
1. Insufficient Evidence of Criminal Intent under Code § 18.2-447(1)(a)
Abouemara met with the town manager and offered monetary donations to the town in
return for a letter of support for his business and its gaming machines. Because there is no evidence
that providing or withholding such a letter of support was within the scope of the town manager’s
official duties, Abouemara’s offer to the town manager was not made with the intent “to obtain or
influence the [town manager’s] decision, opinion, recommendation, vote or other exercise of
discretion as a public servant.” Code § 18.2-447(1)(a) (emphasis added). Therefore, Abouemara’s
offer to the town manager does not constitute a bribe under Code § 18.2-447(1)(a).
Abouemara agreed when the town manager stated that he would present Abouemara’s
proposal to the town council for a vote. Subsequently, the town council voted on whether to accept
Abouemara’s offer of monthly monetary donations to the town in return for the town’s letter of
support for his business and its gaming machines. By presenting his proposal to the town council
for a vote on the proposal, Abouemara was not bribing the town council members. There is a
decisive difference between presenting such a proposal for a vote and offering a pecuniary benefit to
influence a vote on such a proposal. When the town manager presented Abouemara’s proposal to
the town council, no member of the town council was offered anything in exchange for his or her
- 22 -
vote at the town council meeting. Thus, by expressing agreement when the town manager stated
that he would present Abouemara’s proposal to the town counsel for a vote, Abouemara was not
making an offer of pecuiniary benefit with the intent to influence any town council member’s vote
as a public servant.
The facts here are distinguished from a bribery scheme in which someone offers a pecuniary
benefit to a public servant to influence his or her official vote on a proposal. In such a bribery
scenario, the offered pecuniary benefit is intended to influence the public servant to vote based on
his or her desire for the offered benefit, contrary to the public servant’s official duty to vote based
on the merits of the proposal. Here, the benefit offered by Abouemara was part of his proposal, not
an offer intended to influence the vote on his proposal. Therefore, in expressing agreement when
the town manager stated that he would present Abouemara’s proposal to the town council for a vote,
Abouemara was not bribing the town council members.
Even if Abouemara had directly offered the town council members monetary donations to
the town in return for the town’s letter of support for his business and its gaming machines—instead
of having his proposal presented to the town council for a vote at a town council meeting—the
evidence would not support a finding of the requisite intent for bribery of the town council members
under Code § 18.2-447(1)(a). Because there is no evidence that providing or withholding such a
letter of support was within the scope of the town council members’ official duties, the hypothetical
offer to the town council members would not be made with the intent “to obtain or influence the
[town council member’s] decision, opinion, recommendation, vote or other exercise of discretion as
a public servant.” Code § 18.2-447(1)(a) (emphasis added). Therefore, such an offer to the town
council members would not constitute a bribe under Code § 18.2-447(1)(a).
The majority erroneously concludes that the evidence is sufficient to find that Abouemara
acted with the requisite intent for bribery under Code § 18.2-447(1)(a) because Abouemara agreed
- 23 -
when the town manager stated that he would present Abouemara’s proposal to the town council for
a vote at the town council meeting. First, the majority’s opinion fails to recognize the important
difference between (i) offering a pecuniary benefit to a public servant with the intent to influence his
vote as a public servant and (ii) presenting a proposal for a vote by public servants. It would be
bribery under Code § 18.2-447(1)(a) to offer a pecuniary benefit with the intent to influence any
town council member’s vote on a proposal identical to Abouemara’s proposal. But presenting
Abouemara’s proposal for a vote by the town council does not constitute a bribe because it is not an
offer of pecuniary benefit to influence the official vote on the proposal. Second, the majority’s
analysis ignores the statutory phrase “as a public servant.” See Code § 18.2-447(1)(a) (defining
bribery as an offer of pecuniary benefit with the intent to influence the recipient’s “decision,
opinion, recommendation, vote or other exercise of discretion as a public servant” (emphasis
added)). As explained above, the exercise of discretion as a public servant necessarily relates to a
public servant’s exercise of discretion in the performance of his or her official duties. Because there
is no evidence that providing or withholding a letter of support for a business and its gaming
machines was within the scope of the town council members’ official duties, the evidence is
insufficient to support a finding under Code § 18.2-447(1)(a) that Abouemara bribed the town
council members.
- 24 -
2. Insufficient Evidence of Criminal Intent under Code § 18.2-447(1)(b)10
For an offer to constitute a bribe under Code § 18.2-447(1)(b), the offer must be made with
the intent to influence either (i) the recipient’s exercise of official discretion in a judicial or
administrative proceeding or (ii) the recipient’s violation of a known legal duty as a public servant.
During the informal office meeting when Abouemara offered monetary donations to the town and
asked Hendrick, as the town manager, to give him a letter of support from the town, Hendrick was
not in, nor expected to be in, a judicial or administrative proceeding when deciding whether to
accept Abouemara’s offer on behalf of the town. Additionally, there is no evidence to support a
finding that Hendrick’s provision of the requested letter would have violated a known legal duty.
Because there is no evidence that Abouemara offered the town manager monetary donations to the
town to influence the town manager’s exercise of official discretion in a judicial or administrative
proceeding or to influence the town manager’s violation of a known legal duty, Abouemara’s offer
to Hendrick during the informal office meeting did not constitute an attempt to bribe Hendrick
under Code § 18.2-447(1)(b).
When Hendrick stated that he would present Abouemara’s proposal to the town council and
Abouemara agreed, Abouemara did not ask Hendrick to make any recommendation about the
proposal. And the evidence does not support a finding that Abouemara offered, conferred, or
10
The indictment on which Abouemara was convicted alleged:
ABOUEMARA . . . unlawfully and feloniously did offer, confer, or
agree to confer upon another any benefit as consideration for or to
obtain or influence either the recipient’s decision, opinion,
recommendation, vote, or other exercise of official discretion as a
public servant, in a judicial or administrative proceeding, or the
recipient’s violation of a known legal duty as a public servant, in
violation of § 18.2-447 and 18.2-446 of the Code of Virginia (1950)
as amended.
This indictment charges a violation of Code §§ 18.2-447(1)(b).
- 25 -
agreed to confer any benefit upon Hendrick in return for presenting his proposal to the town council.
Thus, no rational factfinder could find that Abouemara offered, conferred, or agreed to confer any
benefit with the intent to influence Hendrick’s “decision, opinion, recommendation, vote or other
exercise of official discretion in a judicial or administrative proceeding.” Code § 18.2-447(1)(b).
The evidence is also insufficient for a rational factfinder to find that Abouemara made his
offer of monetary donations to the town with the intent to influence any member of the town council
in his or her “decision, opinion, recommendation, vote or other exercise of official discretion in a
judicial or administrative proceeding.” Id. As explained above, the presentation of Abouemara’s
proposal for a vote by the town council did not constitute an offer of pecuniary benefit to any town
council member to influence his or her vote on the proposal at the town council meeting. No
member of the town council was offered anything in exchange for his or her vote at the town
council meeting. Therefore, Abouemara did not bribe any member of the town council under Code
§ 18.2-447(1)(b).
Even if Abouemara had directly offered the town council members monetary donations to
the town in return for the town’s letter of support for his business and its gaming machines—instead
of having his proposal presented to the town council for a vote at a town council meeting—the
evidence would not support a finding of the requisite intent for bribery under Code
§ 18.2-447(1)(b). The requisite intent under subsection (1)(b) of Code § 18.2-447 is the intent to
influence “the recipient’s decision, opinion, recommendation, vote or other exercise of official
discretion in a judicial or administrative proceeding or the recipient’s violation of a known legal
duty as a public servant.” Id. (emphasis added). Here, the only relevant exercise of official
discretion by the town council members at the town council meeting would be their vote on
Abouemara’s proposal. As explained above, the presentation of Abouemara’s proposal for a vote
by the town council did not constitute an offer to influence any town council member’s vote on the
- 26 -
proposal. And there is no evidence that the presentation of the proposal was intended to influence
any town council member to violate a known legal duty as a public servant. Additionally, the
requisite intent under Code § 18.2-447(1)(b) is the intent to influence a public servant’s exercise of
official discretion, i.e., the exercise of discretion in the performance of official duties. The evidence
is insufficient to prove this intent because there is no evidence that the town council members had
an official duty to provide or withhold the desired letter of support. Therefore, the evidence is
insufficient to prove the requisite intent for bribery of the town council members under Code
§ 18.2-447(1)(b).
CONCLUSION
For the foregoing reasons, the evidence is insufficient to support a finding that Abouemara
acted with the requisite intent for bribery under both prongs of Code § 18.2-447(1). Thus, viewing
the evidence in the light most favorable to the Commonwealth, no rational trier of fact could find
the essential elements of the alleged bribery beyond a reasonable doubt. Therefore, I would reverse
the trial court’s judgment, vacate the conviction and sentencing orders, and dismiss the indictment.
Thus, I respectfully dissent from the majority’s judgment affirming the bribery conviction.
- 27 -