UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA, v. Criminal Action No. 19-156-1 (CKK) BRIAN WINSTON BAILEY,
Defendant.
MEMORANDUM OPINION (February 21, 2023) A jury convicted Defendant Brian Bailey (“Defendant” or “Bailey”) of, among other
things, conspiracy in violation of 18 U.S.C. § 371 and bribery in violation of 18 U.S.C. §
201(b)(1)(C). In his pending [254] Renewed Motion for Judgment of Acquittal or, in the
Alternative, for New Trial, Bailey mainly challenges his convictions for conspiring with Dawne
Dorsey to unlawfully obtain confidential government records known as Tenant Opportunity to
Purchase Act (“TOPA”) Notices ahead of his competition and with access to information that
might otherwise be redacted from public disclosure. He raises four main arguments: (1) section
201(b)(1)(C) is unconstitutionally vague; (2) that he is actually innocent on his section
201(b)(1)(C) conviction because he did not induce Dorsey to violate a lawful duty; (3) that the
Government constructively varied from or amended the indictment; and, probably in the
alternative, (4) the evidence was insufficient to show any duty existed in the first place. 1 Each
argument fails.
1 Defendant does not appear to raise any argument in favor of acquittal or a new trial as to any charge, so the Court does not address any such unadvanced issues. 1 Accordingly, and upon consideration of the briefing, 2 the relevant legal authorities, and the
entire record, Defendant’s [254] Renewed Motion for Judgment of Acquittal or, in the Alternative,
for New Trial is DENIED.
I. BACKGROUND
A jury convicted Defendant of four counts arising from two related conspiracies: (1) the
conspiracy between Bailey and Dorsey, and (2) a conspiracy between Bailey and co-defendant
David Paitsel where Bailey paid Paitsel for tenant contact information only available to Paitsel
by virtue of his position as a Federal Bureau of Investigation (“FBI”) employee. Bailey
explained the pecuniary benefit of these two conspiracies to potential partners in one particularly
incriminating email in evidence. Gov. Ex. 103C. The District of Columbia, in Bailey’s words,
“is unique to any other jurisdiction in the country in that every tenant [who is] renting a
residence has [a] ‘right of [first] refusal’ to purchase the property they live in” when their
landlord puts the property up for sale. Id. This process is governed by the District of
Columbia’s “Tenant Opportunity to Purchase Act” (“TOPA”), codified at D.C. Code § 42-3404.
If a tenant can match the landlord’s “bona fide offer of sale,” the landlord must sell the building
to the tenant. Id. 42-404.02(a). By acquiring these rights, and acquiring them as early as
possible, Bailey earned the opportunity “to purchase the [property], match or re-negotiate the
2 The Court’s consideration has focused on: • Defendant’s Renewed Motion for Judgment of Acquittal or, in the Alternative, for a New Trial, ECF No. 254 (“Motion” or “Mot.”); • The Government’s Opposition to Defendant Bailey’s Renewed Motion for Judgement [sic] of Aquittal [sic] or, Motion for a New Trial, ECF No. 258 (“Opp.”); • Defendant’s Reply in Support of Renewed Motion for Judgment of Acquittal or, in the Alternative, for a New Trial, ECF No. 261 (“Repl.”); and • Trial Transcripts, ECF Nos. 249-253 (“Trial Trans.”). In an exercise of its discretion, the Court has concluded that oral argument would not be helpful in the resolution of the Motion. 2 contract[,] and then sell [Bailey’s newfound rights] to purchase the property to another investor
without actually taking title to the property.” Gov. Ex. 103C. “The difference between the
contract price and the premium amount that an investor is willing to pay is the margin of profit
that’s left over.” Id.
Bailey could only purchase these rights, however, if (1) he knew a property was for sale
and (2) he could contact the tenants to buy their TOPA rights. As a result, he began to pay
Dorsey, usually in cash, for unredacted TOPA “notices,” also termed “offers of sale.” Pursuant
to TOPA, a landlord must first “provide each tenant a written copy of the offer of sale” and, after
doing so, “provide the [District of Columbia Department of Housing and Community
Development (“DHCD”)] with a written copy of the offer of sale” along with a certification that
“each tenant [was] provided [a] cop[y] of the offer of sale on the same day.” D.C. Code § 42-
3404.03. As a DHCD employee, Dorsey had immediate access to these notices as soon as they
were provided to DHCD. See Trial Trans. 9/28/22 at 136-37. As such, Bailey paid Dorsey to
give him these notices as soon as possible. Gov. Ex. 102B. In an email to Dorsey, for example,
Bailey complained that Dorsey was not sending notices fast enough. Id. As he remonstrated her,
“[y]ou [Dorsey] sending files isn’t working out the way I [Bailey] thought it would. Initially I
was getting files almost daily. Now I’m receiving files 2 or 3 times a month.” Id. For Bailey,
that would not do. In his words, “[t]he [TOPA notices] are time sensitive and most of the time I
get them so late that I might only have a week or less to react . . . It doesn’t do me [Bailey] any
good to receive the files with almost no time to react.” Id.
At trial, the Government argued, and the jury found, that Bailey paid Dorsey to give him
these files in violation of Dorsey’s duty to otherwise keep them from Bailey. The Government
relied almost entirely (if not entirely) on a DHCD policy to keep TOPA notices confidential from
3 uninterested third parties, except in a response to a request under the District of Columbia’s
Freedom of Information Act (“FOIA”). Trial Trans. 9/28/22 at 68, 128. Although memorialized
in certain exhibits (with Dorsey copied), e.g., Gov. Ex. 110B, it was conveyed orally from
supervisors to Dorsey (and other DHCD employees), Trial. Trans. 9/28/22 at 137-142.
The Government presented overwhelming evidence of Bailey’s corrupt intent to induce
Dorsey to violate what he understood to be Dorsey’s obligation to keep these TOPA notices
confidential. The Government introduced thousands of communications between Bailey and
Dorsey memorializing and/or effectuating their corrupt bargain. For example, Exhibit 3B
contained thousands of text messages between Bailey and Dorsey and hundreds of messages
from Dorsey promising, conveying, or requesting TOPA notices in exchange for cash or check.
E.g., Text 470 3 (“I [Dorsey] will review your [Bailey’s] request for documents on 211 Morgan
Street NW] once I get in [to the office]”); Text 267 (“I’m about to email the notices”); Text 529
(in response to Bailey telling Dorsey that he would “give [her] cash” after Dorsey did not “cash
[her] check,” Dorsey confirming “ok[,] [w]hat time do you [Bailey] want me [Dorsey] to come”
to Bailey’s house). Exhibit 101A contained an email with the subject line “RE: TOPA Notice”
from Dorsey to Bailey informing Bailey “[j]ust a heads up, you will receive multiple emails from
me.” In Exhibit 101F, which contained multiple TOPA notices, Dorsey told Bailey, “I just tried
sending it [the TOPA notices] from my personal email. Let me know if it came through. The
email address is [redacted].”
Exhibit 102A contains emails between Bailey and Dorsey in which Bailey told Dorsey
that he “could give you [Dorsey] [$]10,000” for TOPA notice and similar documents. Id. at 2.
3 The exhibit assigns each text message a number, so the Court cites to each message by number for ease of reference. 4 Dorsey assured Bailey that she has furtively asked another government agency to “check their
records.” Id. In Exhibit 102B, Bailey complained to Dorsey that Dorsey had not been sending
Bailey requested notices quickly enough. Dorsey responded, “I understand what you’re saying .
. . I’ve been trying to send them as we got them . . . .” Dorsey responded to a similar complaint
from Bailey in Exhibit 102, assuring him that she “does apologize” to him because she “didn’t
realize that the files [she] was sending were late.” Id. Finally, Exhibit 106A featured another
email in which Dorsey sent Bailey several TOPA notices. She provided additional contact
information for tenants at one other property in addition to the property’s sale price.
A variety of exhibits further establish Bailey’s mental state that he understood Dorsey
was doing something unlawful by sending him TOPA notices. For example, when Bailey
emailed an associate TOPA notices that Bailey received from Dorsey, Bailey told the associate:
“Keep this quiet. We’re not supposed to have it.” Gov. Ex. 103D. When Dorsey warned Bailey
that “there’s supposed to be a group of people trying to investigate [Dorsey and her coworkers]
b[e]c[ause] they think [DHCD] [is] leaking info,” Bailey responded, “Ok...the focus is on
everyone. Nothing can lead back 2 u right?” Gov. Ex. 3B. Moreover, each of Bailey’s
payments to Dorsey was furtive—either he went “down to DHCD to slide his [friend] an
envelope,” Gov. Ex. 101E, or Dorsey went to Bailey’s home for cash or checks, e.g., Gov. Ex.
3B.
Consistent with the facts in evidence, the Court instructed the jury that, to convict Bailey
of bribing Dorsey in violation of section 201(b)(1)(C) bribery, the Government must show the
following beyond a reasonable doubt: (1) Bailey gave, offered, or promised something of value
to Dorsey; (2) Dorsey was a public official; (3) Bailey did so corruptly; and (4) Dorsey had a
“lawful duty” to keep confidential the information and/or material for which Bailey paid Dorsey.
5 The Court defined lawful duty as “any statutory, regulatory, or official duty imposed upon and
made known to Ms. Dorsey, either orally or in writing, by virtue of and specific to her position
as Program Specialist at” DHCD. In all material respects, the Court gave the jury the instruction
requested by Defendant. Based on this instruction, the jury found Defendant guilty of bribing
Dorsey in violation of 18 U.S.C. § 201(b)(1)(C).
II. LEGAL STANDARDS
Rule 29(a) of the Federal Rules of Criminal Procedure provides in pertinent part that
“[a]fter the government closes its evidence or after the close of all the evidence, the court on
defendant’s motion must enter a judgment of acquittal on any offense for which the evidence is
insufficient to sustain a conviction.” “In ruling on a motion for a judgment of acquittal, 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 the evidence[,] and draw justifiable
inferences of fact.” United States v. Treadwell, 760 F.2d 337, 333 (D.C. Cir. 1985) (citation
omitted). “This stringent standard contemplates that the ultimate decision of guilty or innocence
should be left to the jury, and that it is the province of the jury to credit certain testimony and
reject other testimony.” United States v. Khanu, 675 F. Supp. 2d 55, 60 (D.D.C. 2009). “[A]
judgment of acquittal is appropriate only when there is no evidence upon which a reasonable
juror might fairly conclude guilty beyond a reasonable doubt.” United States v. Weisz, 718 F.2d
413, 438 (D.C. Cir. 1983) (emphasis original). Argument that the evidence is legally insufficient
to warrant conviction is appropriately raised on a Rule 29 motion for a judgment of acquittal.
See United States v. Reffitt, 602 F. Supp. 3d 85, 95 (D.D.C. 2022).
Under Federal Rule of Criminal Procedure 33(a), the Court “may vacate any judgment
and grant a new judgment if the interest of justice so requires.” Granting a new trial “is
6 warranted only in those limited circumstances where a serious miscarriage of justice may have
occurred.” United States v. Wheeler, 753 F.3d 200, 208 (D.C. Cir. 2014) (cleaned up). The
Court has “broad discretion” in deciding a motion for a new trial. Id. The party seeking a new
trial bears the burden of proving that it is justified. United States v. Mangieri, 694 F.2d 1270,
1285 (D.C. Cir. 1982).
III. DISCUSSION
A. Section 201(b)(1)(C)
Federal criminal law’s most expansive bribery statute is 18 U.S.C. § 201. See McDonnell
v. United States, 579 U.S. 550, 561 (2016). It criminalizes several forms of bribery, including,
among others, a quid pro quo to defraud the United States, § 201(b)(1)(B), and a quid pro quo to
influence a witness’s “testimony under oath” at a “trial, hearing, or other proceeding,”
§ 201(b)(4). Most commonly charged is section 201(b)(1)(A), which criminalizes corruptly
giving anything of value to a public official with the intent to influence any official act, see
United States v. Alfisi, 308 F.3d 144, 149 (2d Cir. 2002), which the Court in prior orders has
termed “official-act bribery.” As multiple Circuits have explained, the provision charged here,
section 201(b)(1)(C), is a distinct offense, which this Court has termed “lawful-duty bribery.”
E.g., Valdes v. United States, 475 F.3d 1319, 1327 (D.C. Cir. 2007) (en banc) (characterizing
lawful-duty bribery as covering an “additional predicate class[]” of conduct (emphasis
original)). 4 Unlike official-act bribery, lawful-duty bribery bars inducing a public official “to do
or omit to do any act in violation of the lawful duty of such official.” 18 U.S.C. § 201(b)(1)(C).
4 Accord Alfisi, 308 F.3d at 152 n.3; United States v. Young, 651 F. App’x 202, 204 (4th Cir. 2016); United States v. Fernandez, No. 19-15044, 2022 WL 3581793, at *4 (11th Cir. Aug. 22, 2022) (unpublished). Cf. also United States v. Leyva, 282 F.3d 623, 625 (9th Cir. 2002) (distinguishing section 201(b)(2)(B), which criminalizes a quid pro quo for fraud, with sections 201(b)(1)(A) and (b)(1)(C), which have “‘official act’ or ‘official duty’ language”). 7 Valdes, and the canon against surplusage more generally, teaches that each distinct offense
should be read to encompass a different class of predicate conduct lest one offense be rendered
surplusage. 475 F.3d at 323. As the Eleventh Circuit has explained, treating each subpart of
section 201 as substantially identical “is wrong,” because, “[w]here Congress includes particular
language in one section of a statute but omits it in another section of the same Act, it is generally
presumed that Congress acts intentionally and purposely.” Fernandez, 2022 WL 3581793, at *4
(quoting Russello v. United States, 464 U.S. 16, 23 (1983)).
Applying Valdes, binding appellate authority, the Court concluded lawful-duty bribery
added a factual predicate necessary for conviction that is not included in official-act bribery. On
similar grounds, the Court rejected the Government’s argument that “lawful duty” modifies the
offense’s mental state, rather than mandating a factual predicate. As the Court explained,
Taking this reading to its logical conclusion, it is clear why the Government’s position is not correct: Every person who corruptly bribes a public official does so assuming that, to receive what they want, the public official must do something unlawful. See United States v. Ring, 706 F.3d 460, 470 (D.C. Cir. 2013) (noting same expression of mental state in different bribery statute). If “lawful duty” modifies the mental state required, then Congress created a bribery statute governing all bribery of public officials no matter the circumstances and buried it in a subsection. See Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001) (Congress “does not . . .hide elephants in mouseholes.”). Courts are not to read criminal statutes in such a way, nor are courts to read subsections of criminal statutes to simply repeat the same offense in two subsections, even if there is substantial overlap.” See United States v. Aguilar, 515 U.S. 593, 616 (1995) (Scalia, J., concurring).
Order, ECF No. 208 at 3 (Sept. 20, 2022). At Defendant’s request, and because the Court and
the parties were unaware of any other court having previously defined “lawful duty,” the Court
proceed to fashion a definition itself.
The Court did so, as it must, by beginning with the language of the statute and following
the D.C. Circuit’s instruction that, when a bribery statute “‘can be linguistically be interpreted to
be either a meat axe or a scalpel, [it should] reasonably be taken to be the latter.’” Id. at 4
8 (quoting Valdes, 475 F.3d at 1323). After considering dictionary definitions and grammatical
canons of construction, the Court defined “lawful duty” to “encompass statutory, regulatory, or
official duties imposed upon the person receiving the bribe, either orally or in writing, by virtue
of and specific to the office stewarded by the person receiving [or offered] the bribe.” Order,
ECF No. 201 at 5 (Sept. 17, 2022).
B. Vagueness
Despite requesting a substantially identical instruction during trial, Defendant now argues
that section 201(b)(1)(C) is unconstitutionally vague. It is not.
A law is vague when “it fails to give ordinary people fair notice of the conduct it
punishes, or [is] so standardless that it invites arbitrary enforcement.” Johnson v. United States,
576 U.S. 591, 595 (2015). “[T]he touchstone is whether the statute, standing alone or as
construed, made it reasonably clear at the relevant time that the defendant’s conduct was
criminal.” United States v. Lanier, 520 U.S. 259, 267 (1997). “This is ‘a stringent standard.’”
United States v. Grider, --- F. Supp. 3d --- 2022 WL 3016775, at *7 (D.D.C. 2022) (CKK)
(quoting United States v. Sandlin, 575 F. Supp. 3d 16, 30 (D.D.C. 2021)). A vagueness
challenge cannot succeed where the standard is “imprecise but comprehensible[,] whose
satisfaction may vary dependent upon whom you ask.” United States v. Bronstein, 849 F.3d
1101, 1107 (D.C. Cir. 2017). Rather, the statute must “specify no standard of conduct at all.” Id.
(cleaned up). Moreover, a criminal statute is not unconstitutionally vague on its face (which
appears to be Defendant’s challenge) unless it is “impermissibly vague in all of its applications.”
Vill. of Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 479, 497 (1982).
To determine if “lawful duty” renders the statute unconstitutionally vague, the Court
must look to the meaning of the term in context, as well as any “judicial gloss” the Court may
9 apply to provide “clarity at the requisite level.” See Lanier, 520 U.S. at 266. Because Congress
did not supply a definition, the Court looked to its “common or popular meaning[].” See United
States v. North, 910 F.2d 843, 881 (D.C. Cir. 1990) (interpreting “corruptly” mens rea)
superseded in irrelevant part on rehr’g 920 F.2d 990 (D.C. Cir. 1990). The Court previously
began, and begins again here, with dictionary definitions.
A “duty” is “a legal obligation that is owed . . . and that needs to be satisfied.” Duty,
Black’s Law Dictionary (9th ed. 2009). Similarly, a “legal duty” is a “duty arising by contract or
by operation of law.” Legal Duty, Black’s Law Dictionary (9th ed. 2009). Insofar as the key
word here is not “legal” but “lawful,” “lawful” means “[n]ot contrary to law.” Lawful, Black’s
Law Dictionary (9th ed. 2009). The Court also turned to general principles of statutory
construction. It understood how to define “lawful duty” by also looking at what “lawful duty” is
not, in other words, by virtue of placing subsection (b)(1)(C) in context. See United States v. Ali,
718 F.3d 929, 938 (D.C. Cir. 2013) (discussing canon against surplusage). As such, reapplying
Valdes, “lawful duty” bribery is not “official act” bribery as a matter of law. See 475 F.3d at
1327; see also United States v. Alfisi, 308 F.3d 144, 151 n.3 (2d Cir. 2002) (these two
subsections “undoubtedly overlap in some considerable measure, although resort to [official-act
bribery] seems most appropriate in the case of bribes regarding decisions involving the exercise
of judgment or discretion . . . while the use of [lawful-duty bribery] would be most appropriate in
the cases of bribes to induce actions that directly violate a specific duty, such as a prison guard’s
duty to prevent the smuggling of contraband”).
To the extent that lawful-duty bribery could still be read to provide “no standard of
conduct at all,” the interpretive “grammar canon” provides even further clarity. See Facebook,
Inc. v. Duguid, 141 S. Ct. 1163, 1173 (2021) (Alito, J., concurring) (discussing canon). Here,
10 Congress proscribed bribery to induce an official to act “in violation of the lawful duty of such
official.” 18 U.S.C. § 201(b)(1)(C) (emphasis added). The selection of a definite, rather than
indefinite, article is grammatically important. Cf. Niz-Chavez v. Garland, 141 S. Ct. 1474, 1481
(2021) (citing The Chicago Manual of Style § 5.7, p. 227 (17th ed. 2017)) (noting importance of
indefinite article in separate statutory scheme). Where used as an adjective, and in contrast to an
indefinite article (e.g., “a”), which “points to nonspecific objects, things, or persons that are not
distinguishable from the other members of a class,” a definite article (e.g., “the”) speaks to
something specific and distinct. See The Chicago Manual of Style §§ 5.70-71, 5.75, pp. 166-67
(15th ed. 2003). As such, the lawful-duty bribery section refers to a duty that is that particular
official’s duty, which may or may not be shared with other public officials. Because the actus
reus of the crime must relate to the duty of the official, there must be some nexus between the
office the public official stewards and the legal duty violated (or to be violated).
Moreover, as Defendant readily argues, to the extent that there is some vagueness issue,
the Court can avail itself of the constitutional avoidance doctrine. Rep. at 3-4 (citing Jones v.
United States, 526 U.S. 227, 228 (1999)). The Court effectively did so by requiring that an oral
policy be “made known” before characterizing it as a “lawful duty.” Were a policy not “made
known,” the Court reasoned, a jury runs the risk of convicting a defendant where there is neither
an extant “duty” nor an extant duty “arising by contract or by operation of law.” See Order, ECF
No. 220 at 4. As the Court put it, a duty must “have in fact been promulgated, and it must be
specific to the public official’s duties.” Id. Now, and in the alternative, Defendant would have
the Court go further, requiring a policy constituting the “lawful duty” be written. Repl. at 3.
Such an argument, however, faces appellate headwinds. When Valdes opined on section
201(b)(1)(C)’s reach, it offered examples of criminal conduct constituting lawful-duty bribery.
11 For example, an Air Force sergeant who “s[old] names of new recruits” violated his “lawful
duty.” Id. (citing Parks v. United States, 355 F.2d 167 (5th Cir. 1965)). Similarly, a law
enforcement officer who provided “an investigative target with ‘information relating to the IRS
and FBI’s investigations in exchange for money’” violated his “lawful duty.” Id. (quoting
United States v. Cruz, 946 F.2d 122, 123 (11th Cir. 1991)). Valdes itself mentioned no
requirement that a policy be written, and there is no mention in Cruz that the law enforcement
officer’s actions were proscribed by written standards of conduct. Rather, Valdes and Cruz were
evidently satisfied that some duty merely existed in fact.
Defendant’s insistence that a lawful duty must be written is also buffeted by factual
headwinds. There were multiple exhibits in evidence memorializing in writing the policy that
was originally conveyed orally. E.g., Gov. Ex. 110A (email from Dorsey to requestor that they
must submit FOIA request); Gov. Ex. 110B (email from Dorsey’s supervisor, with Dorsey
copied, explaining policy); Gov. Ex. 214 (email from DHCD supervisor to investigator
explaining policy). To the extent that Defendant is concerned that the jury returned a verdict
based solely on a witness’s credibility, those are not the facts here, and a defendant may not rely
on hypothetical prosecutions in advancing a vagueness challenge. See Sandlin, 575 F. Supp. 3d
at 30.
Lastly, Defendant relies on Lanier’s broad statement that “due process bars courts from
applying a novel construction of a criminal statute to conduct that neither the statute nor any
prior judicial decision has fairly disclosed to be within its scope.” 520 U.S. at 267. As a
threshold matter, this admonition is not nearly as potent as Defendant insists. The application of
a criminal statute to a novel set of facts does not, in fact, render a statute unconstitutionally
vague. The question is not whether the Government has not yet brought its enforcement
12 discretion to bear, but rather whether a defendant would be convicted “‘under a law so vague that
it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it
invites arbitrary enforcement.’” See Kincaid v. Gov. of D.C., 854 F.3d 721, 728-29 (D.C. Cir.
2017) (quoting Beckles v. United States, 137 S. Ct. 886, 892 (2017)). Defendant would have the
Court adopt a per se rule that the Government must have previously secured a conviction on a
similar set of facts for a criminal statute to apply to that class of conduct, an approach that every
court of this jurisdiction has rejected in the past two years. See United States v. Sheppard, Crim.
A. No. 21-203 (JDB), 2022 WL 17978837, at *4 (D.D.C. Dec. 28, 2022) (reiterating that every
court to confront the issue has rejected the argument that 18 U.S.C. § 1512(c) does not apply to
insurrection-related offenses merely because the Government had not previously applied it to
obstruction of Congressional proceedings).
In any event, the argument also rests on a mistaken factual premise––the Government has
secured at least two convictions for lawful-duty bribery in the recent past without requiring
evidence of a written policy. In United States v. Young, 87 F. Supp. 3d 805 (W.D. Va. 2015), a
jury convicted a prison inmate of lawful-duty bribery where he paid a prison nurse to smuggle
tobacco and cell phones into his facility. Id. at 806. The Government argued that the nurse’s
smuggling efforts were in violation of prison policy, and the Court denied the defendant’s Rule
29 motion for acquittal without any written policy in evidence, or even any testimony that the
policy was written down at all. See id. at 808; see also ECF No. 92, Trial Trans. 12:14-18 (“Q:
Can you get a cell phone through legal means in prison? A: No, sir. Q: Do you know why that is?
Are you aware of the policy behind that? A: I’m not for [sic] sure.”). Second, in United States v.
Trinh, Case No. 2:15-cr-00179(A)-CA, 2017 WL 3835138, at *4 (E.D. Cal. Aug. 31, 2017), the
court rejected that actually identifying a lawful duty as a factual predicate was necessary to
13 establish criminal liability under section 201(b)(1)(C). These two cases illustrate why this
Court’s approach may, in fact, be overly cautious.
In light of the foregoing, it simply cannot be said that lawful-duty bribery is utterly
standardless. The term “lawful duty” is easily understood by reference to dictionary definitions
and, to the extent that it is not, just as easily clarified through resort to familiar canons of
statutory construction. To the extent that any vagueness concerns linger, the definition
considered by the jury more than adequately assuages them. As such, Defendant’s vagueness
challenge fails.
C. Actual Innocence
Next, Defendant insists that he is actually innocent of his section 201(b)(1)(C) charge
because Dorsey did not violate a lawful duty in providing unredacted TOPA notices for cash
without requiring Defendant to first file a FOIA request. Put differently, Bailey insists that when
he told an associate, “[k]eep this quiet. We’re not supposed to have it [TOPA notices sent by
Dorsey],” Gov. Ex. 103D, he was mistaken, and he was, in fact, supposed to have the TOPA
notices Dorsey furtively sent Bailey in exchange for money payments.
Defendant argues that the office policy in evidence, directing uninterested third parties to
make a FOIA request in order to receive redacted TOPA notices from DHCD, somehow violates
the District of Columbia’s FOIA statute. In support of this argument, the only statutory
provision on which Defendant relies is the “public policy” provision of the District’s FOIA law,
exhorting readers to “construe[] [the law] with the view toward expansion of public access[.]”
D.C. Code § 2-531 (2016 Repl.). Rather, Defendant relies almost entirely on the general
principle that a FOIA request may not be denied merely based on the identity of the requester.
14 Mot. at 11 (citing Nat’l Archives & Recs. Admin. v. Favish, 541 U.S. 157, 174 (2004)). 5 This
salutary rule applies not to all public requests for documents, however, but to requests made
under a FOIA statute. See Horsehead Indus., Inc. v. U.S. EPA, 999 F. Supp. 59, 67-68 (D.D.C.
1998) (“FOIA confers on members of the public a right to information” through a FOIA request
(emphasis added)). To that end, the FOIA statute governs, and governs only, FOIA requests; it
does not supplant all other methods by which public records can be obtained. See id. at 67.
More importantly, the charged conduct is not simply, for example, overpaying FOIA
fees. See, e.g., D.C. Code § 2-532(b-1) (adopting fee schedule for FOIA requests). Indeed,
Bailey did not pay the District of Columbia government at all. Rather, Bailey, who was not a
FOIA requestor, paid Dorsey to cut the line in front of all potential requestors of TOPA notices,
whether through FOIA or some other method. Even this Court lacks the legal authority to
mandate a government agency reorder requests for public information. See In re Barr Labs.,
Inc., 930 F.2d 72, 76 (D.C. Cir. 1991) (court lacks authority to compel agency action
unreasonably delayed without showing evidence of bad faith or no “rule of reason” applied to
ordering queue); see also Open Am. v. Watergate Special Prosecution Force, 547 F.2d 605, 614-
15 (D.C. Cir. 1976) (FOIA specifically). There is nothing in the District of Columbia’s FOIA
statute legalizing Dorsey sending unredacted TOPA notices to Bailey without Bailey first
making a FOIA request, and FOIA’s general preference in favor of public access to government
documents cannot vitiate an otherwise lawful bar on Dorsey sharing unredacted TOPA notices
with uninterested real estate developers.
5 The District of Columbia’s FOIA statute is interpreted the same as the federal FOIA statute. Fraternal Order of Police, Metro. Labor Comm’n v. District of Columbia, 113 A.3d 195, 199 (D.C. 2015). 15 D. Constructive Amendment
In Defendant’s strongest argument, he maintains that the Government constructively
amended or varied from the Indictment at the end of its case-in-chief and during closing. In
essence, Defendant argues that the Indictment alleged only DHCD’s office policy was the lawful
duty at issue, and the Government then proposed to the jury that it could rely on District of
Columbia’s ethics policies and the FOIA statute as distinct lawful duties. A close reading of the
record establishes that Defendant is incorrect.
As a threshold matter, the Government may not materially diverge from the charging
document at trial. The law recognizes two such diversions: variances and amendments. The
Government varies from the charging document where the evidence at trial proves facts
materially different from those alleged in the indictment. See United States v. Lorenzana-
Cordon, 949 F.3d 1, 4 (D.C. Cir. 2020). A conviction may only be vacated where the variance
had a “substantial and injurious effect or influence in determining the jury’s verdict.” United
States v. Baugham, 449 F.3d 167, 174 (D.C. Cir. 2006). An amendment, on the other hand,
occurs where “the evidence presented at trial and the instructions given to the jury so modified
the elements of the offense charged that the defendant may have been convicted on a ground not
alleged by the grand jury’s indictment.” United States v. Toms, 396 F.3d 427, 436 (D.C. Cir.
2005) (emphasis original) (internal quotation marks omitted). To determine whether the
charging document was constructively amended, a court must consider the instructions as a
whole, not merely one instruction in isolation. Id. Constructive amendment is “fatal error.”
United States v. Sayan, 968 F.2d 55, 60 (D.C. Cir. 1992).
Therefore, the Court begins with the charging document itself, the Indictment, ECF No.
18. There, the Government described the charged lawful-duty with particularity:
16 DHCD had a policy that treated Offer of Sale Notices [TOPA notices] submitted by owners to DHCD as confidential because they contained the names of tenants. As such, DHCD directed its employees not to release or disseminate TOPA Offers of Sale Notices to un-related third parties to real estate transactions. DHCD informed its employees that an un-related third party to a real estate transaction could only obtain an Offer of Sale Notice by submitting a Freedom of Information Act (“FOIA”) Request to DHCD. Moreover, when DHCD produced an Offer to Sale Notice in response to a FOIA request, DHCD redacted tenant names and contact information to protect those tenants’ privacy interests.
Id. ¶ 3. There is no mention in the Indictment of District of Columbia’s ethics policies, and
FOIA is referenced only in relation to the alleged office policy.
The Government made its position known throughout trial. As a legal matter, it did not
believe it needed to identify the precise source of the duty and, if it did, that it factually was only
the office policy to which two Government witnesses testified that constituted the duty at issue.
As Government counsel clarified to the Court in advance of closings:
Even under the original jury instructions, the fact that Ms. Dorsey had to follow an ethics policy for no private self-dealing and the fact that the FOIA policy required the redactions to the PII [personal identifying information] is evidence of the fact that it was known to her that she could not give out the TOPA notices. . . . [In other words, the ethics regulations and the FOIA statute is] evidence that goes to the issue of whether there was a lawful policy[, i.e., whether the office policy existed].
Trial Tr. 10/04/22 66:5-16. The Court then clarified, “I understand. It seems to me that you’re
making an argument that they’re [the Government] relying on a violation of the statute, as that is
the policy, and they’re not. . . . That is evidence of the policy in terms of these other things that
would inform the policy as they [the Government] has said.” Id. 66:17-21 (emphasis added). In
other words, in the Government’s view, the ethics regulations and the FOIA statute were
circumstantial evidence supporting its factual assertion that there was, in fact, a policy at DHCD
to keep unredacted TOPA notices confidential. Given Defendant’s main argument at trial was
that the DHCD policy, oral in nature, did not, in fact, exist, it is only natural that the Government
was focused on proving its existence.
17 The Government in closing argued exactly that. The Government maintained to the jury
that “[i]t’s clear from the testimony of [DHCD supervisors], [Dorsey’s] two bosses, that the
names of tenants in TOPA filings are to be kept confidential.” Trial Trans. 10/6/22 at 47. The
Government then put up a PowerPoint slide featuring the ethics regulations and FOIA statute in
an effort to convince the jury that these sources “also confirm that Dorsey had a lawful duty not
to be giving this information out” when considered in concert with the supervisor’s testimony
regarding the existence of the DHCD policy. Id. at 50. Lest the jury be confused, and as
Defendant concedes in his briefing, Defendant spent the vast majority of his closing argument
addressing whether “the government had failed to prove that there was an internal DHCD policy
against sharing unredacted TOPA notices.” Mot. at 17. True, in rebuttal, the Government
argued that Dorsey “[e]mailing the TOPA notices to Mr. Bailey violated the ethics policies on
using her public office for private gain.” Trial Trans. 10/7/22 at 37. But this argument was
advanced in an effort to show by circumstantial evidence that the DHCD policy in fact existed
insofar as it reflected the contents of this other ethics policy. Although the Government
incorrectly stated that “a lawful duty is a duty applicable to the position of the public official and
made known to the public official, not the policy of an office,” id. at 40, the Court then corrected
that misstatement in its instructions to the jury.
When considering “the evidence presented at trial and the instructions given to the jury,”
and given the vast majority of the Government’s and Defendant’s cases-in-chief were focused on
the purported DHCD policy, it is exceptionally unlikely that the jury erroneously thought the
lawful duty at issue was something other than this DHCD policy. Although the Government’s
closing argument certainly could have been more precise, the Court sees no error here. The
Court did not instruct the jury that the District of Columbia ethics policies or the FOIA statute
18 were other duties at issue, and, when compared to the rest of the evidence presented and the
instructions given, they were a mere footnote over the course of the trial. Therefore, on this
record, the Court does not find that the Government impermissibly varied from or constructively
amended the Indictment.
E. Sufficiency of the Evidence
Lastly, Defendant argues that there was insufficient evidence to establish that Dorsey was
“made aware” of the DHCD policy, as required by the Court’s instructions. Not so. Two
witnesses testified that Dorsey was made aware of the policy, e.g., Trial Trans. 9/28/22 at 137,
Dorsey herself was worried she would be discovered for “leaking” TOPA notices to Bailey, Gov.
Ex. 3B, and Dorsey was copied on at least one email memorializing the policy, Gov. Ex. 110B.
This last challenge fails.
IV. CONCLUSION
For the foregoing reasons, the Court DENIES Defendant’s [254] Renewed Motion for
Judgment of Acquittal or, in the Alternative, for New Trial. An appropriate order accompanies
this Memorandum Opinion.
Dated: February 21, 2023
/s/ __ COLLEEN KOLLAR-KOTELLY United States District Judge