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

(Count One); one count of theft of government property in

violation of

(Count Two); one count of

concealment of material facts in violation of

(a)(1) and (c)(2) (Count Three); and five counts of making

false statements in violation of

(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

.

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,

(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,

, 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

, 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,

(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,

(D.C. Cir. 1985) (quoting

United States v. Davis,

(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,

(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,

(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,

(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,

(D.C. Cir. 2002) (quoting Jackson v.

Virginia,

(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,

, 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,

(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

, 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.

. 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

(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,

, 352 (D.C. Cir.

2002) (quoting Robinson v. Shell Oil Co.,

(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.”

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,

(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,

(1998); see also United States v. Moore,

(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,

(1990); see also

United States v. Poindexter,

(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,

. Rather, to invoke the

10 rule of lenity, the court “must conclude that there is a

grievous ambiguity or uncertainty in the statute.”

(citation and internal quotation marks omitted).

Whether an OCE investigation falls within the scope of

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,

(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.

. 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.”

. 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.”

.

The district court granted the defendant’s motion to

dismiss the section 1505 count. United States v. Rainey,

(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.”

. 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.”

. Given these competing interpretations, the district

court found that section 1505 was “ambiguous” and therefore

invoked the rule of lenity to dismiss the count.

.

On appeal, the Fifth Circuit reversed, holding that under

the plain meaning of section 1505, a congressional subcommittee

is “any committee of either House.”

. 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.’”

. 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.’”

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.”

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.

The D.C. Circuit’s decision in Barenblatt v. United States,

(D.C. Cir. 1957), vacated,

, lends some

support to the Fifth Circuit’s broad reading of the phrase

“committee.” Barenblatt involved a prosecution under the

congressional contempt statute,

, 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.”

. The

defendant in that case argued that “Congress did not intend to

make it a crime to refuse to answer questions of a

subcommittee.”

. 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.

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,

(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,

(1966). Instead, it

is “necessary to link the inquiry conducted by the subcommittee

to the grant of authority dispensed to its parent committee.”

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.

.

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,

(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,

(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

. 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

(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.”

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,

(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,

, 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

(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,

(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,

).

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,

(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,

(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.

. 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.

. Likewise, the

defendant purportedly failed to provide complete information to

the agency’s investigator with whom he voluntarily met.

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

(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

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.

.

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

, see

United States v. London,

(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,

(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,

(S.D.N.Y.

1987), aff'd,

(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,

.

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

. 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.

.

Mr. Bowser argues in his motions that Counts Four and Seven

are non-justiciable under United States v. Rostenkowski,

(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,

(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.”

. 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.

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.

. 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.”

. 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.”

(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.

.

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.”

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,

(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,

(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,

(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.

43 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

. 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,

(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

44 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

45