United States v. Bowser

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
UNITED STATES OF AMERICA, )
)
v. ) Criminal No. 16-59 (EGS)
)
DAVID G. BOWSER, )
)
Defendant. )
______________________________)
MEMORANDUM OPINION
This case stems from the government’s allegations that
David Bowser, who was then Chief of Staff for former
Representative Paul Broun in the United States House of
Representatives, unlawfully used congressional funds to pay a
consultant for campaign services. Following a four-week trial,
the jury returned guilty verdicts on five counts. Pending before
the Court are the following motions: (1) Mr. Bowser’s motion for
a judgment of acquittal following the close of the government’s
evidence; (2) Mr. Bowser’s motion for a judgment of acquittal at
the close of all evidence; Mr. Bowser’s motion for a judgment of
acquittal notwithstanding the verdict; and (4) the government’s
motion to dismiss Count Two of the Indictment. Based on the
evidence in the record, the applicable law, and the parties’
arguments, and for the reasons explained below, the Court GRANTS
IN PART AND DENIES IN PART Mr. Bowser’s motions and GRANTS the
government’s motion.
1
I. BACKGROUND
On April 6, 2016, David Bowser was charged with one count
of obstruction of proceedings in violation of 18 U.S.C. §§ 1505(Count One); one count of theft of government property in
violation of 18 U.S.C. § 641 (Count Two); one count of
concealment of material facts in violation of 18 U.S.C. §§
1001(a)(1) and (c)(2) (Count Three); and five counts of making
false statements in violation of 18 U.S.C. §§ 1001(a)(2) and
(c)(2) (Counts Four through Eight). See generally Indict., ECF
No. 1. 1 These charges were based on allegations that Mr. Bowser,
who was the Chief of Staff to Representative Paul Broun from
2008 until 2015, used his position to misappropriate federal
funds to pay a campaign consultant, Brett O’Donnell, and then
obstructed the Office of Congressional Ethics’ investigation of
that misappropriation.
Jury selection commenced on February 23, 2018. The
government completed its case-in-chief on March 13, 2018.
Pursuant to Federal Rule of Criminal Procedure 29, Mr. Bowser
orally moved for a judgment of acquittal as to Counts One
through Seven at the close of the government’s case. Mr. Bowser
subsequently filed a written motion, see ECF No. 72, which was
1 For the eight counts charged in the indictment, the
government also alleges that Mr. Bowser is liable as an aider or
abettor under 18 U.S.C. § 2.
2
fully briefed by March 18, 2018, see ECF Nos. 82 and 85. The
Court reserved judgment on the motion, and Mr. Bowser presented
his defense. The defense completed its case-in-chief on March
19, 2018. The government did not present rebuttal evidence. Mr.
Bowser orally renewed his motion for a judgment of acquittal and
filed a second written motion. See ECF No. 86. The Court
reserved judgment on that motion until after the jury’s verdict.
On March 23, 2018, the jury returned guilty verdicts on
Counts One, Three, Four, Seven, and Eight. See Jury Verdict, ECF
No. 100. The jury acquitted Mr. Bowser on Counts Five and Six,
and it was unable to reach a unanimous verdict on Count Two.
Id.; see also Jury Note, ECF No. 94. The Court received the
jury’s verdict as to the unanimous counts and instructed the
jury to continue deliberations as to Count Two. After continued
deliberations, the jury informed the Court that it was unable to
reach a verdict with respect to Count Two. See Jury Note, ECF
No. 96. The Court again instructed the jury to continue
deliberating. See 3/23/18 Trial Tr., ECF No. 116 at 8-12
(providing anti-deadlock instruction pursuant to United States
v. Thomas, 449 F.2d 1171 (D.C. Cir. 1971)). After further
deliberations, the jury informed the Court that it was still
“hopelessly deadlocked” as to Count Two. See Jury Note, ECF No.
98. At that point, the government stated that “it would be
appropriate to declare a mistrial.” Id. at 12. The Court agreed
3
and, over Mr. Bowser’s objection, determined that it was
“manifestly necessary” to declare a mistrial as the Count Two.
Id. at 12-13; see also Minute Order of March 25, 2018
(explaining that it was necessary to declare a mistrial given
the “jury’s continued inability to reach a verdict” and the
“significant risk that a verdict may result from pressures
inherent in the situation rather than the considered judgment of
all the jurors”).
On April 13, 2018, Mr. Bowser filed a motion for a judgment
of acquittal notwithstanding the verdict as to Counts One, Two,
Three, Four, and Seven. See ECF No. 117. On that same day, the
government filed a notice of its intention not to seek retrial
on Count Two and asked that Count Two be dismissed without
prejudice pursuant to Federal Rule of Civil Procedure 48(a). See
ECF Nos. 118 and 119. Mr. Bowser requested the Court to reserve
its ruling on the government’s request to dismiss Count Two
until after it had ruled on his motions for acquittal. See ECF
No. 120. The Court subsequently ordered the government to show
cause why Count Two should not be dismissed with prejudice in
view of the government’s decision not to seek retrial on that
count. See Minute Order of June 15, 2018 (citing United States
v. Karake, No. 2-256, 2007 WL 8045732, at *3 (D.D.C. Feb. 7,
2007)). On June 20, 2018, in response to the Court’s order to
show cause, the government stated that it had no objection to
4
dismissing Count Two with prejudice. See ECF No. 124. Mr. Bowser
nonetheless maintains that a judgment of acquittal is
appropriate. See ECF No. 125.
In his motions, Mr. Bowser argues that Counts One, Two,
Three, Four and Seven fail for the following reasons:
• Count One, obstruction of proceedings, fails because
the Office of Congressional Ethics does not fall
within the scope of 18 U.S.C. § 1505, which only
applies to the “House” or a “committee” of the House.
• Count Two, theft of government funds, is non-
justiciable pursuant to United States v. Rostenkowski,
59 F.3d 1291 (D.C. Cir. 1995).
• Count Three, concealment of a material fact, fails
because there was no legal duty for Mr. Bowser to
disclose any information to the Office of
Congressional Ethics, as cooperation with that
office’s investigations is voluntary.
• Counts Four and Seven, making a false statement, fail
because they are non-justiciable like Count Two and
for the additional reason that the evidence was
insufficient to establish that Mr. Bowser had the
requisite mens rea.
II. LEGAL STANDARD
A. Motion for a Judgment of Acquittal at the Close of
Evidence
Federal Rule of Criminal Procedure 29(a) provides that,
“[a]fter the government closes its evidence or after the close
of all the evidence, the court on the defendant’s motion must
enter a judgment of acquittal of any offense for which the
evidence is insufficient to sustain a conviction.” In
5
considering a Rule 29 motion, “‘the trial court must view the
evidence in the light most favorable to the Government giving
full play to the right of the jury to determine credibility,
weigh evidence and draw justifiable inferences of fact.’” United
States v. Treadwell, 760 F.2d 327, 333 (D.C. Cir. 1985) (quoting
United States v. Davis, 562 F.2d 681, 683 (D.C. Cir. 1977)). In
other words, “the Court must decide whether a reasonable jury
could conclude that the government met its burden of proving
each element of the offense beyond a reasonable doubt.” United
States v. Quinn, 403 F. Supp. 2d 57, 60 (D.D.C. 2005). “The
court may reserve decision on the motion, proceed with the trial
(where the motion is made before the close of all the evidence),
submit the case to the jury, and decide the motion either before
the jury returns a verdict or after it returns a verdict of
guilty or is discharged without having returned a verdict. If
the court reserves decision, it must decide the motion on the
basis of the evidence at the time the ruling was reserved.” Fed.
R. Crim. P. 29(b).
B. Motion for a Judgement of Acquittal After the Verdict
Under Rule 29(c), a defendant may renew a motion for a
judgment of acquittal within fourteen days after a guilty
verdict. Because a court owes “tremendous deference to a jury
verdict,” United States v. Long, 905 F.2d 1572, 1576 (D.C. Cir.
1990), the court “must view the evidence in the light most
6
favorable to the verdict, and must presume that the jury has
properly carried out its functions of evaluating the credibility
of witnesses, finding the facts, and drawing justifiable
inferences,” United States v. Campbell, 702 F.2d 262, 264 (D.C.
Cir. 1983). A conviction in a criminal trial should be upheld if
“any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” United States
v. Wahl, 290 F.3d 370, 375 (D.C. Cir. 2002) (quoting Jackson v.
Virginia, 443 U.S. 307, 319 (1979)). The standard for
“clear[ing] the bar for [a] sufficiency of evidence challenge”
is “very high,” and the evidence to support a conviction does
“not need to be overwhelming.” United States v. Pasha, 797 F.3d
1122, 1135 n.9 (D.C. Cir. 2015). “Thus a judgment of acquittal
is appropriate only when there is no evidence upon which a
reasonable juror might fairly conclude guilt beyond a reasonable
doubt.” United States v. Weisz, 718 F.2d 413, 438 (D.C. Cir.
1983) (emphasis added).
III. ANALYSIS
A. Count One: Obstruction of Proceedings
Count One charges Mr. Bowser with obstruction of
proceedings in violation of 18 U.S.C. § 1505, which prohibits an
individual from corruptly obstructing or endeavoring to obstruct
“the due and proper exercise of the power of inquiry . . . by
either House, or any committee of either House or any joint
7
committee of the Congress.” Indict., ECF No. 1 ¶¶ 64-80.
Specifically, the government charged Mr. Bowser with obstructing
an official investigation that was conducted by the Office of
Congressional Ethics (“OCE”) regarding the use of federal funds
by Congressman Broun’s office to pay for consultant Brett
O’Donnell’s services to Congressman Broun’s House reelection and
Senate campaigns. Id. ¶ 65. For Mr. Bowser to have been found
guilty of violating section 1505, the government was required to
prove the following elements beyond a reasonable doubt:
(1) that, from in or about March 2014
through in or about June 2014, there was
an inquiry or investigation being had by
the U.S. House of Representatives or any
committee of the House;
(2) that Mr. Bowser knew that the inquiry or
investigation was being had by the U.S.
House of Representatives or any
committee of the House; and
(3) that Mr. Bowser did corruptly endeavor
to influence, obstruct or impede the due
and proper exercise of the power of
inquiry under which the investigation or
inquiry was being had by the U.S. House
of Representatives or any committee of
the House.
See Jury Instructions, ECF No. 87 at 11; see also 18 U.S.C. §
1505 (explaining that an individual may be found guilty of
violating the section if he “corruptly . . . influences,
obstructs, or impedes or endeavors to influence, obstruct, or
8
impede . . . the due and proper exercise of the power of inquiry
under which any inquiry or investigation is being had by either
House, or any committee of either House or any joint committee
of the Congress”). Mr. Bowser argues that he could not have
obstructed a proceeding within the meaning of section 1505
because the OCE is not the “House” or “any committee” the House.
Def.’s Mot. for J. of Acquittal (“Def.’s MJOA”), ECF No. 72 at
1.
The issue here is one of pure statutory interpretation:
does the phrase “House, or any committee of either House or any
joint committee of the Congress” as used in section 1505 include
the OCE? The first step “‘in interpreting a statute is to
determine whether the language at issue has a plain and
unambiguous meaning with regard to the particular dispute in the
case.’” United States v. Wilson, 290 F.3d 347, 352 (D.C. Cir.
2002) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 340
(1997)). In determining whether a statutory term is plain or
ambiguous, the court examines “the language itself, the specific
context in which that language is used, and the broader context
of the statute as a whole.” Id. In so doing, “the court must
avoid an interpretation that undermines congressional purpose
considered as a whole when alternative interpretations
consistent with the legislative purpose are available.” United
9
States v. Braxtonbrown-Smith, 278 F.3d 1348, 1352 (D.C. Cir.
2002).
If, after considering “everything from which aid can be
derived,” a court “can make no more than a guess as to what
Congress intended,” then a court should apply the rule of
lenity. United States v. Muscarello, 524 U.S. 125, 138-39
(1998); see also United States v. Moore, 619 F.2d 1029 (D.C.
Cir. 1979) (explaining that criminal statutes “are to be
strictly construed” and “uncertainty regarding their ambit is to
be resolved in favor of lenity”). The rule of lenity counsels in
favor of reading ambiguous criminal statutes “to ensure both
that there is fair warning of the boundaries of criminal conduct
and that legislatures, not courts, define criminal liability.”
Crandon v. United States, 494 U.S. 152, 158 (1990); see also
United States v. Poindexter, 951 F.2d 369, 378 (D.C. Cir. 1991)
(“a penal statute must define the criminal offense with
sufficient definiteness that ordinary people can understand what
conduct it prohibits, and do so in a manner that does not invite
arbitrary and discriminatory enforcement by which policemen,
prosecutors, and juries . . . pursue their personal
predilections”). Notably, “[t]he simple existence of some
statutory ambiguity . . . is not sufficient to warrant
application of that rule, for most statutes are ambiguous to
some degree.” Muscarello, 524 U.S. at 138. Rather, to invoke the
10
rule of lenity, the court “must conclude that there is a
grievous ambiguity or uncertainty in the statute.” Id. at 138-39(citation and internal quotation marks omitted).
Whether an OCE investigation falls within the scope of 18
U.S.C. § 1505 appears to be a matter of first impression. The
Court finds that a plain-text reading of the statute compels the
conclusion that the OCE does not fall within the scope of the
statute. Section 1505 prohibits an individual from corruptly
obstructing or endeavoring to obstruct “the due and proper
exercise of the power of inquiry . . . by either House, or any
committee of either House or any joint committee of the
Congress.” The government relies on House Resolution 895 to
argue that the OCE is “in the House” and therefore subject to
section 1505. Gov’t Opp’n to Def.’s Mot. for J. of Acquittal
(“Gov’t MJOA Opp’n”), ECF No. 82 at 6. The relevant provision of
House Resolution 895 reads as follows:
For the purpose of assisting the House in
carrying out its responsibilities under
article I, section 5, clause 2 of the
Constitution (commonly referred to as the
“Discipline Clause”), there is established in
the House an independent office to be known as
the Office of Congressional Ethics.
H. Res. 895 § 1(a) (emphasis added). The report published by the
Special Task Force on Ethics Enforcement in the House of
Representatives — which was created in January 2007 by House
Speaker Nancy Pelosi and then Minority Leader John Boehner to
11
determine whether the House should create an “outside” ethics
enforcement entity — uses similar language in describing the
OCE, noting that the OCE was designed to be “an independent
office of the House of Representatives.” See Rep. of the
Democratic Members of the Special Task Force on Ethics
Enforcement (“Task Force Rep.”), 110th Cong., 1st sess., H. Prt.
110-1 at 6 (emphasis added); see also id. (recommending that the
OCE be “established as an independent office within the House of
Representatives”) (emphasis added). Indeed, the Task Force
considered and expressly rejected the idea of creating the OCE
as an “outside” entity that would be “separate from the House.”
Id. at 7. Instead, the Task Force concluded that establishing
the OCE as “an office within the Legislative Branch,” much like
independent offices such as “the Office of the Inspector General
or the Office of the Chief Administrative Officer,” made the
most sense from both a constitutional and practical perspective.
Id.
The government also argues that the evidence at trial
established that the OCE is “part of the House in all meaningful
ways.” Gov’t MJOA Opp’n, ECF No. 82 at 7. For example, at trial,
the government introduced the testimony of Bryson Morgan, a
lawyer who served as investigative counsel for the OCE between
September 2013 and July 2015. See 3/8/18 p.m. Trial Tr., ECF No.
110 at 47-49. Mr. Morgan testified that the OCE is designed to
12
assist the House in carrying out its constitutional obligation
to punish its own members, id. at 50; the OCE’s governing board
is composed of individuals appointed by the Speaker of the House
and the House Minority Leader, id.; the OCE board reports to the
House Committee on Ethics, id. at 53, 55, 65-68; the OCE staff
are House employees, id. at 56-57; the OCE’s investigative
authority “is quite broad” and includes investigations into
alleged violations “by a member of the House, employee of the
House, officer of the House in the conduct of their official
duties, id. at 57; and the OCE’s authority to promulgate its own
rules comes from the House, 3/13/18 a.m. Trial Tr. at 93. 2
The government’s arguments on this point are not
persuasive. Although the government is correct that the OCE was
created to operate within the House, it is not the “House”
itself. Article 1, section 2 of the Constitution makes clear
that the House “shall be composed of Members chosen every second
Year by the People of the several States.” The OCE is
indisputably not composed of “members elected by the people,”
and therefore it cannot be “the House” as defined by the
Constitution. To the contrary, a member of Congress is expressly
ineligible to be on the board of the OCE. See H. Res. 895 §
2 To the extent transcripts of the proceedings are not on the
docket, the Court relies on copies of rough transcripts it has
received.
13
1(b)(4)(B)(i)(V). Moreover, a member of the OCE board is not
“considered to be an officer or employee of the House.” Id. §
1(b)(7).
Nor is the OCE a “committee of either House or any joint
committee of the Congress” within the meaning of section 1505.
Rule X of the Rules of the House of Representatives establishes
a number of standing committees and sets forth their
jurisdiction. See Rules of the House of Representatives,
available at http://clerk.house.gov/legislative/house-rules.pdf
(last visited July 5, 2018). Although the House Committee on
Ethics is established through those Rules as having jurisdiction
over matters covered by the Code of Official Conduct, see Rule X
§ 1(g), the OCE is not established as a separate committee.
Indeed, the OCE was designed to “advise” the Committee on Ethics
regarding purported ethical violations, but it was never
intended to supplant the work of that committee. Task Force Rep.
at 10 (further explaining that the OCE would “enhance and
supplement the House ethics process”). Moreover, at trial, Mr.
Morgan squarely testified that the OCE is not a “committee” or a
“joint committee”:
Q: [T]he OCE is not a committee of the
House?
A. That is correct.
Q. Okay. And it is not a joint committee of
the Congress?
14
A. Correct.
3/12/18 p.m. Trial Tr., ECF No. 111 at 126. Thus, there is no
evidence in the record to support the conclusion that the OCE is
a committee or a joint committee of Congress.
The government strains to analogize the OCE to a
congressional subcommittee that has been established by a House
committee to conduct a specific investigation. Gov’t MJOA Opp’n,
ECF No. 82 at 8 n.6. The government posits that the OCE serves
“as an extension of the House Ethics Committee” by conducting
“preliminary investigations” of matters that are then referred
to the Ethics Committee. Id.
To be sure, if the OCE were, in fact, a subcommittee, it
would likely fall into the scope of section 1505. The Fifth
Circuit’s decision in United States v. Rainey, 757 F.3d 234 (5th
Cir. 2014), is instructive on this point. In that case, the
defendant moved to dismiss a section 1505 charge arguing, inter
alia, that the section did not apply to investigations being
conducted by subcommittees. Id. at 238. In support of his
contention that the term “committee” in section 1505 excludes
“subcommittees,” the defendant argued that the court should look
to the “technical” reading of the statute because it operates in
the “congressional context.” Id. at 241-42. Because the term
“committee” in the congressional context meant “a group of
legislators, formally created by and reporting to the House on
15
particular matters, in accordance with the Rules of the House,”
the defendant argued that a subcommittee could not fall within
that definition because it only “reports to the committee of
which it is a part and not the entire House.” Id. at 242.
The district court granted the defendant’s motion to
dismiss the section 1505 count. United States v. Rainey, 946 F.
Supp. 2d 518, 537-42 (E.D. La. 2013). According to the district
court, the “crux of the issue” presented by the defendant’s
motion was “whether the word ‘committee’ in section 1505 should
be read in its generic sense or should be understood in its more
technical sense, as the term is used in the United States
Congress.” Id. at 541. As the district court explained, the
“generic connotation” of the word committee would encompass
subcommittees, but committees and subcommittees “have distinct
meanings” if defined in the “narrow congressional sense.” Id. at
541-42. Given these competing interpretations, the district
court found that section 1505 was “ambiguous” and therefore
invoked the rule of lenity to dismiss the count. Id. at 542.
On appeal, the Fifth Circuit reversed, holding that under
the plain meaning of section 1505, a congressional subcommittee
is “any committee of either House.” 757 F.3d 234, 236. In so
doing, the Fifth Circuit rejected the defendant’s narrow reading
of section 1505, explaining that nothing in the statute
“reflect[ed] congressional intention to import a technical
16
meaning to the phrase ‘any committee.’” Id. at 242. For example,
the Court noted that “[s]ection 1505 does not prohibit
obstructing any committee that ‘reports to either House,’ . . .
but instead protects ‘any committee of either House.’” Id.Moreover, although the defendant relied on internal House rules
to support his proposed definition of “committee,” the defendant
nowhere explained “why the phrase ‘of either House’ cross-
references Congress’ internal regulations into section 1505.”
Id. Rather, according to the Fifth Circuit, the plain text of
section 1505 suggested that Congress intended a broader
definition:
If Congress intended “committee” as a term of
art, which under [the defendant]’s proposed
interpretation excludes other committee
types, “a committee of either House” would
perfectly define the class intended. The
modifier “any,” by contrast, suggests
inclusion rather than exclusion.
Id.The D.C. Circuit’s decision in Barenblatt v. United States,
240 F.2d 875 (D.C. Cir. 1957), vacated, 354 U.S. 930, lends some
support to the Fifth Circuit’s broad reading of the phrase
“committee.” Barenblatt involved a prosecution under the
congressional contempt statute, 2 U.S.C. § 192, which uses
nearly identical language in criminalizing a witness’s refusal
to answer questions pertinent to “any matter under inquiry
before either House, or any joint committee established by a
17
joint or concurrent resolution of the two Houses of Congress, or
any committee of either House of Congress.” Id. at 877, n.1. The
defendant in that case argued that “Congress did not intend to
make it a crime to refuse to answer questions of a
subcommittee.” Id. at 878. The D.C. Circuit disagreed:
Nothing has been shown which reflects that
Congress has indicated such belief. We can
only construe the statute in the light of the
obvious purpose for its enactment. That
purpose was to discourage the impairment of
the vital investigative function of Congress.
The function Congress sought to protect is as
often committed to subcommittees as it is to
full committees of Congress, as indeed it must
be. Construing the statute in a manner
consistent with its obvious purpose, we hold
that Congress intended the word ‘committee’ in
its generic sense, which would include
subcommittees.
Id. Here, too, the government stresses that its broad
interpretation of section 1505 to include the OCE is supported
by the statute’s purpose, which is to “deter[] and punish[]
obstructions of all congressional inquiries,” and that “the
statute is construed broadly by the courts so as to properly
encompass the types of obstruction envisioned by Congress.”
Gov’t MJOA Opp, ECF No. 82. at 5-6 (citing, inter alia, United
States v. Cisneros, 26 F. Supp. 2d 24, 38-39 (D.D.C. 1998)).
The Court concludes that the interpretation advanced by Mr.
Bowser hews closer to the statutory text. Unlike the
subcommittees at issue in Rainey and Barenblatt, the OCE is not
18
composed of members of Congress; in fact, members of Congress
are expressly precluded from serving on the OCE’s board.
Moreover, the OCE’s investigations are not directly undertaken
on behalf of the Committee on Ethics, and indeed, the connection
between the OCE and the Ethics Committee is more tenuous than
that between a subcommittee and a committee. For example, as Mr.
Morgan explained:
So one of the things that distinguishes the
OCE from the House Ethics Committee is that
the OCE can receive allegations from any
source, and that was — it was intended, when
the OCE was created, that there would be
more avenues for allegations to be reviewed.
And so it could come from a complaint.
Someone could come to the OCE with evidence
that misconduct occurred. It could be — it
could be news reports of misconduct that
come forward. It could be any source. It
could be something that the board or staff
discover upon reviewing information on their
own.
3/8/18 p.m. Trial Tr., ECF No. 110 at 60. Thus, the OCE is
permitted to undertake investigations not requested or
authorized by the House Committee on Ethics.
Even assuming that the House Ethics Committee had authority
to delegate its functions to the OCE and intended to do so — the
scenario presented in both Rainey and Barenblatt — some showing
that the Ethics Committee did, in fact, authorize the
investigation into the particular subject matter is critical for
a criminal sanction to attach. As the Supreme Court has
19
cautioned, “[t]he jurisdiction of the courts cannot be invoked
to impose criminal sanctions in aid of a roving commission.”
Gojack v. United States, 384 U.S. 702, 715 (1966). Instead, it
is “necessary to link the inquiry conducted by the subcommittee
to the grant of authority dispensed to its parent committee.”
Id. As the Gojack court noted, this requirement stems from the
fact that it is “the investigatory power of the House that is
vindicated” by the congressional contempt statute. Id. at 716.
Here, section 1505 aims to protect investigations
undertaken by “by either House, or any committee of either House
or any joint committee of the Congress” from obstruction. There
is no evidence, however, that the OCE’s investigation was
undertaken at the behest of the House, the House Committee on
Ethics, or any other congressional committee of the House or
joint committee of the Congress. This conclusion is further
buttressed by the fact that the Committee on Ethics did not take
any final action in response to the OCE’s investigation of
Congressman Broun. On July 25, 2014, the OCE board issued its
report recommending that the Committee on Ethics “further
review” the allegations because there was a “substantial reason”
to believe that House rules and federal laws were violated. See
OCE Report, Review No. 14-2533, available at
https://ethics.house.gov/sites/ethics.house.gov
/files/Rep.%20Broun%20OCE%20Report%20%26%20Findings.pdf (last
20
visited July 5, 2018). Although the Committee on Ethics released
the OCE’s report and noted that the Committee was continuing to
review the allegations, it did not take any action before
January 3, 2015. At that point Representative Broun was no
longer a member of the House and therefore was not subject to
the Committee’s jurisdiction. See Press Release, Committee on
Ethics, Statement of the Chairman and Ranking Member of the
Committee on Ethics Regarding Representative Paul Broun (Oct.
29, 2014), https://ethics.house.gov/press-release/statement-
chairman-and-ranking-member-committee-ethics-regarding-
representative-paul-0 (last accessed July 5, 2018). As such,
there is no evidence to suggest that Mr. Bowser’s obstructive
actions somehow directly impeded the Committee on Ethics’
investigation into a matter within its jurisdiction. Cf. United
States v. Aguilar, 515 U.S. 593, 600-02 (1995) (“We do not
believe that uttering false statements to an investigating agent
. . . who might or might not testify before a grand jury is
sufficient to make out a violation of the catchall provision of
§ 1503.”).
In short, because the OCE is not the “House, or any
committee of either House or any joint committee of the
Congress,” the Court finds that section 1505 should not be read
to protect the OCE’s investigatory power. Alternatively, the
Court concludes that it cannot say with certainty that Congress
21
intended to criminalize obstruction of proceedings being
conducted by the OCE. Accordingly, the Court will apply the rule
of lenity in favor of Mr. Bowser and grant his motion for a
judgement of acquittal on Count One. See United States v.
Granderson, 511 U.S. 39, 54 (1994) (where the “text, structure,
and history fail to establish that the Government’s [reading of
a statute] is unambiguously correct . . . we apply the rule of
lenity and resolve the ambiguity in [defendant’s] favor”).
B. Count Two: Theft of Government Funds
Count Two charges Mr. Bowser with theft of government funds
in violation of 18 U.S.C. § 641. Indict., ECF No. 1 ¶¶ 81-82.
For Mr. Bowser to have been found guilty of violating section
641, the government was required to prove the following elements
beyond a reasonable doubt:
(1) the money described in the Indictment
belonged to the United States;
(2) Mr. Bowser stole or knowingly converted
the money to someone else’s use;
(3) Mr. Bowser knowingly and willfully
intended to deprive the United States of
the use or benefit of the money; and
(4) the money had a value greater than
$1,000.
See Jury Instructions, ECF No. 87 at 12; see also 18 U.S.C. §
641 (explaining that an individual may be found guilty of
violating the section if he embezzles, steals, purloins, or
22
knowingly converts to his use or the use of another . . . any
record, voucher, money, or thing of value of the United
States”).
The jury could not reach a unanimous verdict on Count Two,
and the Court declared a mistrial at the government’s request
after the jury indicated that it was “hopelessly deadlocked.”
See Minute Order of March 25, 2018. The government subsequently
notified the Court that it does not intend to seek retrial on
Count Two and consents to dismissal of that count with
prejudice. See Gov’t Notice, ECF 118; Gov’t Resp., ECF No. 124.
Mr. Bowser nonetheless requested that the Court reserve ruling
on the government’s motion to dismiss Count Two “until after it
has ruled on the Defendant’s motions for Judgment of Acquittal.”
See Def.’s Resp. to Gov’t Mot., ECF No. 120 at 1. Mr. Bowser
makes this request because he believes that the government’s
evidence was “insufficient to sustain a conviction” and
therefore, an “acquittal is warranted.” Id.Federal Rule of Criminal Procedure 48(a) provides that
“[t]he government may, with leave of court, dismiss an
indictment, information, or complaint. The government may not
dismiss the prosecution during trial without the defendant's
consent.” Mr. Bowser argues that “the trial in this case is
still pending until the Court rules on his timely Motions for
Judgment of Acquittal,” and therefore the Court may not dismiss
23
Count Two without his consent. Def.’s Reply to Gov’t Resp., ECF
No. 125. Rule 48, however, only requires the government to
obtain the defendant’s consent “during trial,” and Mr. Bowser
has not cited any authority requiring the government to seek the
defendant’s consent after trial. See United States v. Williams,
720 F.3d 674, 703 (8th Cir. 2013) (holding that the government
only needed leave of the court and not the defendant’s consent
to obtain dismissal after trial). The “principal object of the
‘leave of court’ requirement is apparently to protect a
defendant against prosecutorial harassment, e. g., charging,
dismissing, and recharging, when the Government moves to dismiss
an indictment over the defendant’s objection.” Rinaldi v. United
States, 434 U.S. 22, 29 n.15 (1977). Here, given that the
government consents to dismissal with prejudice, any concern
regarding prosecutorial harassment is not present. Accordingly,
the Court grants the government’s motion and dismisses Count Two
with prejudice.
C. Count Three: Concealment of Material Facts
Count Three charges Mr. Bowser with falsifying, concealing,
or covering up a material fact in a matter within the
jurisdiction of the legislative branch of the United States
government in violation of 18 U.S.C. §1001(a)(1) and (c)(2).
Indict., ECF No. 1 ¶¶ 83-84. For Mr. Bowser to have been found
guilty of concealing a material fact, the government was
24
required to prove the following elements beyond a reasonable
doubt:
(1) Mr. Bowser falsified, concealed, or
covered up a fact for which there was a
legal duty to disclose imposed by statute,
regulation, or government form;
(2) the fact was material;
(3) Mr. Bowser falsified, concealed, or
covered up the fact by using a trick,
scheme or device;
(4) Mr. Bowser acted knowingly and willfully;
and
(5) Mr. Bowser falsified, concealed, or
covered up the material fact in a matter
within the jurisdiction of the legislative
branch of the government of the United
States.
See Jury Instructions, ECF No. 87 at 13. The government charged
Mr. Bowser with concealing information in four ways: (1) lying
to the OCE, (2) withholding documents from OCE investigators,
(3) attempting to influence the testimony of other witnesses
before the OCE, and (4) attempting to prevent other witnesses
from providing their documents to OCE investigators. Indict.,
ECF No. 1 ¶¶ 84(a)-(d).
Relying on United States v. Safavian, 528 F.3d 957 (D.C.
Cir. 2008), Mr. Bowser argues that he cannot be guilty of Count
Three because he had no specific duty to disclose any
information to the OCE. See Def.’s MJOA, ECF No. 72 at 8-11. He
25
points out that compliance with the OCE’s investigative demands
is entirely voluntary, and that there was no requirement that
Mr. Bowser or other members of Congressman Broun’s staff submit
to OCE interviews or provide documents to the OCE in the first
instance. Id. at 9. Mr. Bowser further argues that his decision
to participate in the OCE’s investigation did not impose upon
him any new duty to disclose because section 1001 does not
demand “that individuals choose between saying everything and
saying nothing.” Id. at 10 (citing Safavian, 528 F.3d at 965).
A section 1001 violation predicated on concealment, as
opposed to a false representation, requires the government to
prove that the defendant had a legal duty to disclose the
concealed information. See United States v. Safavian, 528 F.3d
957, 964 (D.C. Cir. 2008) (“Concealment cases in this circuit
and others have found a duty to disclose material facts on the
basis of specific requirements for disclosure of specific
information.”); United States v. Calhoon, 97 F.3d 518, 526 (11th
Cir. 1996) (“Falsity through concealment exists where disclosure
of the concealed information is required by a statute,
government regulation, or form.”).
In Safavian, a jury found the defendant guilty of
concealing relevant information from (1) an ethics officer in
the course of seeking an ethics opinion and (2) the General
Services Administration in the course of that agency’s
26
investigation. 528 F.3d at 963. Specifically, the defendant had
requested advice from the ethics officer but purportedly failed
to provide all the information that would have been relevant to
the officer in rendering his opinion. Id. at 964. Likewise, the
defendant purportedly failed to provide complete information to
the agency’s investigator with whom he voluntarily met. Id. On
appeal, the D.C. Circuit reversed the defendant’s convictions on
these concealment counts, holding that the government had failed
to identify a duty to disclose. With respect to the defendant’s
failure to provide complete information to the ethics officer,
the D.C. Circuit noted that it was not clear “how th[e]
voluntary system” of seeking ethical advice — which the
defendant was ultimately free to follow or disregard —
“impose[d] a duty on those seeking ethical advise to disclose .
. . ‘all relevant information’ upon pain of prosecution for
violating § 1001(a)(1).” Id. Instead, any duty to disclose must
arise from “specific requirements for disclosure of specific
information” so that the a defendant has “fair notice . . . of
what conduct is forbidden.” Id. The Circuit also rejected the
government’s argument that “once one begins speaking when
seeking government action or in response to questioning, one
must disclose all relevant facts.” Id. at 965. Noting that there
was no “regulation or form or statute” that contained such a
requirement, the court found that nothing in section 1001
27
“demands that individuals choose between saying everything and
saying nothing.” Id.
This case is inapposite. The government argued in Safavian
that the defendant's duty to disclose information was imposed
upon him not by statute, regulation, or government form, but by
“standards of conduct for government employees,” which provided
fourteen “general principles” of behavior. Id. at 964. The D.C.
Circuit concluded that these standards were “vague” and that the
“ethical principles” embodied in them did not impose a clear
duty on an executive employee to disclose information. Id. at
964–65. Here, Mr. Bowser’s duty to disclose information to the
OCE is not the result of vague “general principles.” Rather, Mr.
Bowser’s legal duties were far clearer. One June 3, 2014, Mr.
Bowser received a letter from the OCE requesting all documents
relating to Brett O’Donnell. See Gov’t Trial Ex. 503. The letter
stated as follows: “If you are not providing a requested
document or piece of information, then please identify the
document or information withheld and the reason why it is being
withheld.” Id. Even more, the certification form accompanying
the letter read as follows:
I certify that I have not knowingly and
willfully withheld, redacted or otherwise
altered any information requested in the
Office of Congressional Ethics’ (“OCE”)
Request for Information, dated 6/9/14, or if
I have withheld, redacted or otherwise altered
any requested information, then I have
28
identified the information and why it was
withheld, redacted, or otherwise altered. This
certification is given subject to 18 U.S.C. §
1001 (commonly known as the False Statements
Act) and OCE Rule 4(A)(2).
Gov’t Trial Ex. 507 (emphasis added). Mr. Bowser signed and
dated this certification form and submitted it to the OCE along
with his document production. 3/12/18 a.m. Trial Tr. 8:4-12:6.
Likewise, prior to his interview with OCE investigators on
June 24, 2014, Mr. Bowser received and executed an 18 U.S.C. §
1001 Acknowledgment Form. The form stated: “I have been provided
with a copy of the text of section 1001 of title 18, United
States Code (popularly known as the False Statements Act) and
hereby acknowledge that it applies to any testimony or documents
I provide to the Office of Congressional Ethics.” Gov’t Trial
Ex. 516. Mr. Bowser signed this certification before the
beginning of his interview with the OCE. 3/12/18 a.m. Trial Tr.
41:1-42:8.
Mr. Bowser contends that he cannot be found guilty of
concealment “based on [his] alleged false statements to OCE”
because “[a] false statement alone cannot constitute a ‘trick,
scheme, or device’ proscribed by the concealment offense.”
Def.’s Reply, ECF No. 85 at 6-7. Thus, he argues, his false
certifications “simply exposed” him to criminal prosecution
pursuant to the false statement portion of the statute. Id. at
7.
29
Although Mr. Bowser is correct that an affirmative act by
which a material fact is concealed is necessary to prove a
violation of the concealment prong of 18 U.S.C. § 1001, see
United States v. London, 550 F.2d 206, 213 (5th Cir. 1977), the
government has alleged, and a reasonable jury could have found,
an affirmative act here. Specifically, based on the evidence
adduced in the government’s case-in-chief, a reasonable jury
could conclude that Mr. Bowser’s decision not to produce his
personal emails discussing Mr. O’Donnell’s work on Congressman
Broun’s campaign and his false statements to the OCE
investigators in the course of his interview in the face of his
express duty to provide full disclosure, were “affirmative” acts
constituting a “trick, scheme or device” by which facts were
concealed. See, e.g., United States v. Dale, 782 F. Supp. 615,
626 (D.D.C. 1991) (“The case law is clear that the deliberate
failure to disclose material facts in the face of a specific
duty to disclose such information constitutes a violation of the
concealment provision of § 1001.”). As another court explained,
“[w]hile the concealment of a fact that no one has a legal duty
to disclose may not be a violation of [section 1001], such is
not the case where a regulation or form requires disclosure.”
United States v. Perlmutter, 656 F. Supp. 782, 789 (S.D.N.Y.
1987), aff'd, 835 F.2d 1430 (2d Cir. 1987). A defendant’s
nondisclosure in such a circumstance is “distinguishable from a
30
‘passive failure to disclose’ or ‘mere silence in the face of an
unasked question.’” Dale, 782 F. Supp. at 627.
Here, although Mr. Bowser may not have had any preexisting
duty to disclose documents or information to the OCE, a duty was
imposed upon him after he signed forms agreeing that he would
not “falsif[y], coneal[], or cover[] up by any trick, scheme, or
device” a “material fact” within the purview of the OCE’s
investigation. See Gov’t Trial Exs. 507 and 516. The purpose of
these certifications is to provide the OCE a “tool” by which it
can “protect the veracity of the information” that it receives.
3/12/18 a.m. Trial Tr. 11:2-7. As Mr. Morgan explained during
the trial, the OCE “require[s] people to submit this
certification and represent to our office that they have
provided us with the complete production of documents, and they
do that under penalty of the False Statements Act as a method of
protecting or providing some credibility to that assertion.” Id.
11:8-12. Because these forms advised Mr. Bowser that he was
required to fully disclose material facts relevant to the OCE’s
inquiries, Mr. Bowser’s failure to disclose in these
circumstances constituted an affirmative act sufficient to form
the basis of a concealment charge. Accordingly, the evidence
adduced in the government’s case-in-chief is sufficient to
support Mr. Bowser’s concealment conviction.
31
D. Counts Four and Seven: False Statements
Counts Four and Seven charge Mr. Bowser with making a false
statement in a matter within the jurisdiction of the legislative
branch of the United States government in violation of 18 U.S.C.
§ 1001. Indict., ECF No. 1 ¶¶ 85-86, 91-92. For Mr. Bowser to
have been found guilty of making a false statement, the
government was required to prove the following elements beyond a
reasonable doubt:
(1) Mr. Bowser made the statement, as charged
in Counts Four through Eight; 3
(2) the statement was false, fictitious, or
fraudulent;
(3) the statement was material;
(4) Mr. Bowser acted knowingly and willfully;
and
(5) the false statement pertained to a matter
within the jurisdiction of the legislative
branch of the government of the United
States.
3 Counts Five, Six and Eight also charged Mr. Bowser with
making false statements. See Indict., ECF No. 1 ¶¶ 87-90, 93-94.
The jury returned a verdict of not guilty on Counts Five and
Six, so the Court need not consider Mr. Bowser’s arguments with
respect to those counts. In addition, Mr. Bowser does not
challenge the government’s case or his conviction on Count
Eight, which charged him with making a false statement when he
signed the Request for Information Certification verifying he
had not withheld any information during the course of the OCE
investigation.
32
See Jury Instructions, ECF No. 87 at 14. Count Four charged Mr.
Bowser of making the following false statement:
. . . at no point did we ever entertain the
idea this [O’Donnell’s services] would be a
political adventure. This was purely on the
official side.
Indict., ECF No. 1 ¶ 86. Count Seven charged Mr. Bowser of
making the following false statement:
I mean, bottom line is this was done because
Congressman Broun significantly needed help in
his communicating ability and that’s the only
reason why it was done and, you know, we had
no intention at all of doing anything on the
political side with this.
Id. ¶ 92.
Mr. Bowser argues in his motions that Counts Four and Seven
are non-justiciable under United States v. Rostenkowski, 59 F.3d
1291 (D.C. Cir. 1995). He also argues that the evidence
presented at trial was insufficient to establish that he had the
requisite mens rea. The Court addresses each argument in turn.
1. Counts Four and Seven are Justiciable
Mr. Bowser argues that Counts Four and Seven must be
dismissed as non-justiciable because there is no “judicially
discoverable or manageable standard” to apply to determine
whether Mr. Bowser’s statements are true or false. Def.’s MJOA,
ECF No. 72 at 11. Specifically, he points to House rules that
provide that certain expenditures may be paid from congressional
funds so long as the “primary purpose” of the expenditure is
33
“representational” and not “campaign-related.” Id. at 12. 4 He
argues that a jury would be required to interpret these House
rules and determine the “primary purpose” of Mr. O’Donnell’s
work for Congressman Broun in order to resolve these counts. Id.
Because the Constitution reserves to each House the authority to
make its own rules, Mr. Bowser asserts that judicial or juror
interpretation of the meaning of the “primary purpose” rule
would intrude on the sphere of the legislative branch because
“the court would effectively be making the Rules.” Id. at 13;
see also id. (“The jury cannot be permitted to second guess
whether this was the ‘primary purpose’ for hiring O’Donnell
because ‘there is too great a chance that it will interpret the
Rule differently than would the Congress itself[.]”).
To support his arguments, Mr. Bowser relies on United
States v. Rostenkowski, 59 F.3d 1291 (D.C. Cir. 1995). In that
4 The parties stipulated to the following at trial: “The
House rules do not permit [Members’ Representational Allowance]
funds to be used to pay for campaign expenses or campaign-
related political party expenses. In other words, these rules
require that official resources of the House must be used for
the performance of official business of the House, and those
resources may not be used for campaign or political purposes. .
. . MRA funds may be spent to perform what are primarily
official duties that are not campaign related but that have a
side effect that has political or campaign-related benefits. For
example, a congressional employee, whose salary is paid for with
MRA funds, can write a bill that the Member introduces and then
the Member can later talk about that bill at a campaign event as
a reason why he or she should be elected.” Tr. Stip. No. 6,
2/27/18 Trial Tr. p.m., ECF No. 103 at 116-117.
34
case, a congressman was charged with, among other things, using
his congressional allowance to purchase “a variety of valuable
consumer goods and gift merchandise . . . including armchairs,
luggage, sets of china, and crystal sculptures of the U.S.
Capitol . . . to be paid for as supplies necessary for the
official use, when in fact the goods he obtained were for the
personal use of himself, his family, or his friends.” Id. at
1311. The congressman argued that, to resolve the charge, the
court would be required to draw a line between “official use”
and “personal use” by reference to ambiguous House rules. Id.The “question” before the court was whether those terms were
“sufficiently clear, either inherently or as interpreted by the
House itself,” such that they could be applied to the facts
alleged in the indictment. Id. at 1309. The D.C. Circuit found
that, “while the House Rules certainly contemplate a line
between the ‘official’ and the ‘personal,’ they do little to
indicate where that boundary lies.” Id. at 1311. The Circuit
explained that its justiciability analysis turned on whether it
could determine “that the facts set out in a particular
allegation could not be authorized under any reasonable
interpretation of the House Rules.” Id. at 1310 (emphasis
added). Thus, for example, because purchase of gifts with
official funds was clearly prohibited by the relevant House
rule, allegations that the congressman purchased items for the
35
use of “family, or his friends” were justiciable. Id. at 1311.
To the extent the government’s case depended on a showing that
the congressman had purchased the items for “personal use,”
however, the case was non-justiciable because “without
explanation in the Rules,” the term “personal use” was “too
ambiguous to support the prosecution of a Member of Congress.”
Id.Mr. Bowser’s arguments are a red herring, and his case can
be distinguished from Rostenkowski. With respect to Counts Four
and Seven, the government was required to show beyond a
reasonable doubt that the following statements made by Mr.
Bowser were false:
• “ . . . at no point did we ever entertain
the idea this [O’Donnell’s services] would
be a political adventure. This was purely
on the official side.”
• “I mean, bottom line is this was done
because Congressman Broun significantly
needed help in his communicating ability
and that’s the only reason why it was done
and, you know, we had no intention at all
of doing anything on the political side with
this.”
Indict., ECF No. 1 ¶¶ 86, 92. Mr. Bowser attempts to analogize
this case to Rostenkowski by pointing to the “primary purpose”
rule, which requires a member of Congress to determine whether
the primary purpose of a particular expense is “official and
representational” or “campaign-related,” and only allows
36
reimbursement for “expenses the primary purpose of which are
official and representational.” Def.’s MJOA, ECF No. 72 at 12.
Mr. Bowser asserts that the jury cannot decide whether he lied
as alleged in Counts Four and Seven without first determining
whether the “primary purpose” of Mr. O’Donnell’s employment was
“official” or “campaign-related.” Def.’s Mot. for J.
Notwithstanding the Verdict, ECF No. 117 at 9-10. Because the
line between “official work” and “campaign work” is ambiguous,
he concludes that these counts are non-justiciable. Id. at 10.
As Mr. Bowser acknowledges, however, the “primary purpose”
rule relates to whether certain expenditures are reimbursable
from congressional funds. Def.’s MJOA, ECF No. 72 at 12
(emphasis added). Conviction for the false statement counts,
however, turns on Mr. Bowser’s intent in employing Brett
O’Donnell between 2012 and 2014. For the government to succeed
on these counts, it needed to prove, among other things, that
the statements made by Mr. Bowser to the OCE were materially
false. In particular, the government needed to show that Mr.
Bowser’s statement that he never entertained the idea that Mr.
O’Donnell’s services would be “political” was false. Likewise,
the government needed to show that Mr. Bowser’s statement that
he and Congressman Broun never intended for Mr. O’Donnell to
provide services “on the political side” was false. Such a
showing in no way depends on whether Mr. O’Donnell’s salary was
37
reimbursable from congressional funds or any other
interpretation of the “primary purpose” rule. To the contrary,
even if the government conceded that the primary purpose of Mr.
O’Donnell’s work was official, Mr. Bowser could still be found
to have lied to the OCE if a jury concluded that Mr. Bowser
intended for some portion of Mr. O’Donnell’s work to be
“political” or “on the political side.” Accordingly, the Court
declines to dismiss Counts Four and Seven as non-justiciable.
2. There Is Sufficient Evidence Of Mens Rea To Sustain
A Conviction On Counts Four And Seven
Mr. Bowser also argues that his convictions on Counts Four
and Seven fail because there is insufficient evidence of mens
rea to sustain his conviction. Specifically, he argues that if
he believed in good faith that Mr. O’Donnell was employed to
provide official, rather than campaign, services to Congressman
Broun, he lacked the necessary mens rea to make a false
statement within the scope of section 1001. Def.’s Mot. for J.
of Acquittal Notwithstanding the Verdict, ECF No. 117 at 10-16.
In support of these arguments, Mr. Bowser reiterates the same
arguments he advanced at trial, namely:
• Congressman Broun did not need campaign
assistance when he hired Mr. O’Donnell in
2012 because Congressman Broun was the
overwhelming favorite to win the primary
and faced no opposition in the general
election.
38
• Mr. O’Donnell was hired “as a
communications and messaging consultant”
for the “official side” of Congressman
Broun’s office, and Mr. O’Donnell’s
contract reflected this fact.
• Mr. O’Donnell volunteered his services to
Congressman Broun’s campaigns, as was
“commonplace” among staff in the House.
• Mr. O’Donnell complained about not being
paid for his services to Congressman
Broun’s Senate campaign and requested to be
reimbursed from the campaign, which
suggests that Mr. O’Donnell was not, in
fact, being paid for his campaign work.
Id. Mr. Bowser argues that, based on the facts adduced at trial,
no reasonable jury could conclude that “Mr. Bowser knew from the
outset that the employment arrangement with O’Donnell was
impermissible and that he deliberately lied to OCE about that
arrangement.” Id. at 16.
In considering a defendant’s motion for a judgment of
acquittal at the close of evidence, the Court “must view the
evidence in the light most favorable to the Government, giving
full play to the right of the jury to determine credibility,
weigh evidence and draw justifiable inferences of fact.” United
States v. Treadwell, 760 F.2d 327, 333 (D.C. Cir. 1985)
(citation and internal quotation marks omitted, emphasis added).
Once a jury returns a verdict, the Court’s standard of review is
even more deferential: a court owes “tremendous deference” to
the verdict, United States v. Long, 905 F.2d 1572, 1576 (D.C.
39
Cir. 1990), and his convictions must be upheld if “any rational
trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” United States v. Wahl, 290
F.3d 370, 375 (D.C. Cir. 2002) (emphasis added).
The evidence at trial, viewed in the light most favorable
to the government, was sufficient to establish that Mr. Bowser
“knowingly and willfully” made false statements to the OCE when
he stated that “at no point did we ever entertain the idea this
[O’Donnell’s services] would be a political adventure” and that
“we had no intention at all of doing anything on the political
side with this.” Although the Court will not summarize the
entire, voluminous record adduced in the government’s case-in-
chief on this issue, the Court outlines some of the evidence
that supports the mens rea element of the government’s false
statement counts.
On the first day of trial, the government elicited
testimony from Stephen Allen, a messaging consultant who had
also interviewed for the role for which Mr. O’Donnell was
eventually hired. Mr. Allen testified that, based on his meeting
with Mr. Bowser and Congressman Broun, it was initially his
understanding that they were seeking a consultant who would be
able to provide “campaign services.” 2/27/18 Trial Tr. p.m., ECF
No. 103 at 32-33. Mr. Allen further testified that, after a
subsequent meeting with Congressman Broun, it was his
40
understanding that the Congressman “was on a crusade and wanted
to go around the country talking about conservative causes.” Id.
at 113. Mr. Allen agreed with the government that the crusade
was a “political venture” to the extent Congressman Broun
intended to “advocate[e] conservative principles and causes.”
Id. at 114.
Brett O’Donnell also testified at trial and explained the
nature of his work for Congressman Broun. He stated that,
although it was his understanding that he would primarily be
providing official services to the congressman, he was also
asked to assist the congressman in preparing for campaign
activities within days of being hired. Trial Tr. 3/1/18 a.m.
132-139. As he continued to work for Congressman Broun, Mr.
O’Donnell testified that he routinely consulted with the
congressman on campaign messaging and strategy. See, e.g.,
3/5/18 Trial Tr. a.m. 34, 36-37, 39-40. For example, in the
course of discussing an email regarding Mr. O’Donnell’s
availability to prepare Congressman Broun for a campaign
interview, Mr. O’Donnell confirmed that he prepared the
congressman for a number of campaign events:
Q. Other than this particular example, were
there other occasions where you would
meet or speak with the Congressman to
prepare him for upcoming campaign events?
A. There are.
41
Q. Okay. And we're going to talk about
debates in a moment, but what other —
what are campaign
A. Speeches, media interviews that might be
focused on the campaign, those kinds of
events.
3/5/18 Trial Tr. a.m. 81-82. Mr. O’Donnell even spoke with
Congressman Broun’s wife on a number of occasions about
“direction on messaging for the campaign” and “how to stay on
message.” 3/5/18 Trial Tr. a.m. 31. Furthermore, Mr. O’Donnell
testified that he spent an increasing proportion of his time
providing services to Congressman Broun’s campaign over the
course of 2013 and into 2014.
A. In early 2013, I would say I was doing 60
percent official work, 40 percent
campaign work. By the end of 2013, that
was easily 80 percent campaign work, 20
percent official work.
Q. During the same period — and, again,
we're referring to December of '13 to
March of '14 — were you in communication
with the defendant?
A. I was.
Q. Approximately how often?
A. Maybe even daily via e-mail, at least a
couple of times by phone, and then in and
out of the office a time or two a week.
. . .
Q. And how is it that you would describe the
substance of your conversations with the
defendant during this period?
42
A. Most of them centered around campaign
messaging, strategy, debates, things that
were happening on the campaign side.
Q. Could you give the jury some examples or
a sampling of what kind of discussions
you were having with the defendant during
that time?
A. Yes. We might have been discussing an
upcoming debate and what needed to be
done to prepare the candidate for that
debate, what our overall message in the
debate would be, logistics for the
debate, the format of the debate, so we
might talk about a range of things
relative to that one particular event or
we could be talking about how the
campaign was going, generally.
Particularly on the messaging side we
might talk about specific media
interviews that he had done or was going
to do. So there were a variety of
discussions that could have occurred.
Q. How about your communications with
Congressman Broun during this period?
A. Mostly centered on the campaign. There
would be some time for official work, if
there was a press release going out from
the office or things that were happening
on the official side that we would
message to, but mainly relative to the
campaign; meetings in and out of the
office, whether they were in the official
office or down at Jamestown Associates
when we were preparing for debates, would
center around the campaign and what was
happening relative to him or his
competitors in the race.
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Q. I asked you earlier about who it was that
set the agenda for the work that you were
doing, whether it be official or
campaign. You had mentioned Mr. Bowser;
is that right?
A. Correct.
Q. Same true during this period, or someone
else?
A. Absolutely, Mr. Bowser, with input from
Christine in terms of some of the
tactical considerations that we needed to
review. But primarily David Bowser would
set the agenda for what I should be
working with on Dr. Broun.
3/5/18 Trial Tr. a.m. 101-103. Based on this testimony, the
Court concludes that a reasonable jury could conclude that the
government met its burden of proving mens rea sufficient to
support a conviction under 18 U.S.C. § 1001. Furthermore, to the
extent that Mr. Bowser offered contrary testimony, it was the
jury’s role to “resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences.” Jackson v.
Virginia, 443 U.S. 307, 319 (1979).
Moreover, the Court specifically and clearly instructed the
jury on Mr. Bowser’s theory of the case:
Mr. Bowser asserts that the four statements he
made to the OCE which are charged as alleged
false statements in Counts IV, V, VI and VII
were, in fact, truthful statements and also
were based on opinions or beliefs he honestly
held in good faith at the time he made them.
. . . Good faith is a complete defense to all
of the charges in this case. A statement made
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with good faith belief in its accuracy does
not amount to a false statement and is not a
crime. The burden of establishing lack of good
faith and criminal intent rests on the
government. A defendant is under no burden to
prove his good faith; rather, the government
must prove bad faith or knowledge of falsity
beyond a reasonable doubt.
Jury Instructions, ECF No. 87 at 16. After receiving the
evidence and hearing this instructions, a reasonable jury could
find that, both at the time of the hiring decision and
continuing through 2014, Mr. Bowser contemplated that Mr.
O’Donnell would provide some services on the “political side” in
his work for Congressman Broun. Accordingly, the Court denies
Mr. Bowser’s motions as to Counts Four and Seven.
IV. CONCLUSION
For the reasons set forth above, the Court GRANTS Mr.
Bowser’s motion for a judgment of acquittal as to Count One. The
Court also GRANTS the government’s motion to dismiss Count Two
and dismisses that count with prejudice. Finally, the Court
DENIES Mr. Bowser’s motions with respect to Counts Two, Three,
Four, Five, Six, and Seven. An Order accompanies this Memorandum
Opinion.
SO ORDERED.
SIGNED: Emmet G. Sullivan
United States District Court Judge
July 17, 2018
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