Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Gordon

United States District Court, N.D. Georgia, Atlanta Division

June 21, 2018

UNITED STATES OF AMERICA
v.
ELVIS GORDON and IVAN PONDER, Defendants.

          ORDER

          MARK H. COHEN UNITED STATES DISTRICT JUDGE.

         This 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].[1]

         I. STANDARD OF REVIEW

         In 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).

         II. DEFENDANTS' OBJECTIONS

         A. Motion to Dismiss Counts for Failure to Allege an Official Act Within the Meaning of the Bribery Statute

         In 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 at 4-15.

         Defendants 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).

         1. The Indictment

         Count 1 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.

         Specifically, 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.

         The 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. ¶ 11.

         Counts 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.

         2. Does the Indictment Allege An "Official Act"?

         An 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.