United States District Court, N.D. Georgia, Atlanta Division
H. COHEN UNITED STATES DISTRICT JUDGE.
action comes before the Court on the Final Report and
Recommendation ("R&R") of Magistrate Judge
Linda T. Walker [Doc. 49] recommending that Defendants'
Motion to Dismiss Counts for Failure to Allege an
"Official Act" Within the Meaning of the Bribery
Statute [Doc. 34] and Defendants' Motion to Dismiss
Counts for Failure to Allege an Offense [Doc. 35] be denied.
The Order for Service of the R&R [Doc. 50] provided
notice that, in accordance with 28 U.S.C. § 636(b)(1)
(2012), the parties were authorized to file objections within
fourteen (14) days of the receipt of that Order. See
also FED. R. CRIM. P. 59(a). Within the required time
period, Defendant Gordon ("Gordon") filed his
objections to the R&R [Doc. 51] and, after obtaining an
extension of time within which to file objections, Defendant
Ponder ("Ponder") filed his objections, adopting
the arguments of Gordon [Doc. 57].
STANDARD OF REVIEW
reviewing a magistrate judge's R&R, the district
court "shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made." 28 U.S.C.
§ 636(b)(1). "Parties filing objections to a
magistrate's report and recommendation must specifically
identify those findings objected to. Frivolous, conclusive,
or general objections need not be considered by the district
court." United States v. Schultz. 565 F.3d
1353, 1361 (11th Cir. 2009) (quoting Marsden v.
Moore. 847 F.2d 1536, 1548 (11th Cir. 1988)) (internal
quotation marks omitted). If there are no specific objections
to factual findings made by the magistrate judge, there is no
requirement that those findings be reviewed de novo.
Garvey v. Vaughn, 993 F.2d 776, 779 n.9 (11th Cir.
1993). Absent objection, the district court judge "may
accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate judge, " 28
U.S.C. § 636(b)(1), and may accept the recommendation if
it is not clearly erroneous or contrary to the law. Fed. R.
Crim. P. 59. In accordance with 28 U.S.C. § 636(b)(1)
and Rule 59 of the Federal Rules of Criminal Procedure, the
Court has conducted a de novo review of those
portions of the R&R to which Defendant objects and has
reviewed the remainder of the R&R for plain error.
See United States v. Slay, 714 F.2d 1093,
1095 (11th Cir. 1983).
Motion to Dismiss Counts for Failure to Allege an Official
Act Within the Meaning of the Bribery Statute
their first motion to dismiss, Defendants alleged that Counts
1-21 of the Indictment fail to state an offense under 18
U.S.C. § 201 because the acts charged in the Indictment
are not "official acts" within the meaning of that
statute. After an exhaustive review of the allegations in the
Indictment as well as the current case law, the Magistrate
Judge found that Counts 1-21 of the Indictment properly
alleged official acts taken by Gordon and adequately inform
Defendants of the nature of the charges against them. R&R
object to the conclusion of the Magistrate Judge based on
their assertion that the Indictment fails to comply with the
decision of the United States Supreme Court in McDonnell
v. United States, 136 S.Ct. 2355 (2016), because the
allegations in the indictment do not identify the
"question, matter, cause, suit, proceeding or
controversy" that was pending before Gordon or the
decision he took "on" any of those prerequisites
for establishing an "official act." Def.
Gordon's Objs. at 2-6 (citing McDonnell and 18
U.S.C. § 201).
of the Indictment alleges that, while employed with the
United States Food and Drug Administration ("FDA"),
Gordon was authorized to directly employ vendors for
maintenance projects valued below a certain threshold
("micro-purchases") without going through a formal
procurement process, and that Gordon was issued an office
purchase card to make such micro-purchases. Indictment [Doc.
1] ¶¶ 2-3. Gordon is alleged to have used his
position at the FDA to obtain personal benefits in exchange
for selecting certain vendors to perform work for the FDA
district office in Atlanta, Georgia. Id.
¶¶ 1, 4.
in exchange for selecting and influencing the selection of
P&E Management ("P&E"), a Georgia
corporation owned and managed by Ponder, to perform
maintenance and janitorial work at the FDA district office,
the Indictment alleges that Gordon received financial
remuneration from Ponder and P&E through the issuance of
checks payable to Gordon and his romantic partner.
Id. ¶¶ 7-8. As evidence of a conspiracy to
commit bribery in violation of 18 U.S.C. § 371, the
Indictment alleges the following additional indirect payments
made by Ponder to Gordon: (1) monthly car payments for a
vehicle purchased for Gordon's romantic partner; (2) use
of a debit card linked to P&E's business checking
account to make purchases at gasoline stations, restaurants,
other business establishments, and for Gordon's personal
travel; and (3) use of a debit card to pay for Gordon's
work-related travel expenses, for which Gordon then claimed
reimbursement from the FDA. 14 ¶ 9.
Indictment alleges that, between as early as October 2010 and
continuing through at least May 2016, Gordon, in his capacity
as an FDA official, agreed to receive and accept monetary
payments and other forms of financial remuneration from
Ponder through P&E, in return for Gordon performing an
official act, namely, "promoting, selecting, contracting
with, and making recommendations and requests for work to be
performed" at the FDA's Atlanta district office.
Id. ¶ 10(a). The Indictment also alleges that
Ponder promised Gordon, in his capacity as an FDA official,
things of value with the intent to influence an official act,
namely, "promoting, selecting, contracting with, and
making recommendations and requests for work to be
performed" at the FDA's Atlanta district office.
Id. ¶ 10(b). In furtherance of the conspiracy,
the Indictment alleges seven overt acts. Id. ¶
2-11 of the Indictment charge Gordon with the offense of
bribery in violation of 18 U.S.C. § 201(b)(2), alleging
that Gordon, in his capacity as a public official,
"directly and indirectly, did corruptly demand, seek,
receive, accept, and agree to receive and accept, "
eleven payments, all drawn on P&E's business checking
account, "in return for being influenced in the
performance of an official act, that is, promoting,
selecting, contracting with, and making recommendations and
requests for work to be performed" at the FDA by Ponder
and P&E. Id. ¶¶ 2-11. Counts 12-21 of
the Indictment charge Ponder with offering bribes in
violation of 18 U.S.C. § 201(b)(1), alleging that Ponder
"directly and indirectly, did corruptly give, offer, and
promise" the same eleven payments, all drawn on
P&E's business checking account, with the intent to
influence Gordon to perform an official act, "that is,
promoting, selecting, contracting with, and making
recommendations and requests for work to be performed"
at the FDA. Id., ¶¶ 12-21.
Does the Indictment Allege An "Official
indictment "must be a plain, concise, and definite
written statement of the essential facts constituting the
offense charged ...." FED. R. CRIM. P. 7(c)(1). The
Eleventh Circuit standard for analyzing challenges ...