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

and bribery in violation of

(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.

This process is governed by the District of

Columbia’s “Tenant Opportunity to Purchase Act” (“TOPA”), codified at

.

If a tenant can match the landlord’s “bona fide offer of sale,” the landlord must sell the building

to the tenant.

.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.”

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.”

-

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.

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.”

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.”

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.

.

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.”

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.”

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

(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,

(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,

(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,

(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,

, 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,

(D.C. Cir. 2014) (cleaned up). The

Court has “broad discretion” in deciding a motion for a new trial.

The party seeking a new

trial bears the burden of proving that it is justified. United States v. Mangieri,

(D.C. Cir. 1982).

III. DISCUSSION

A. Section 201(b)(1)(C)

Federal criminal law’s most expansive bribery statute is

. See McDonnell

v. United States,

(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,

(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,

(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.”

(b)(1)(C).

4 Accord Alfisi,

n.3; United States v. Young,

(4th Cir. 2016); United States v. Fernandez, No. 19-15044,

, at *4 (11th Cir. Aug. 22, 2022) (unpublished). Cf. also United States v. Leyva,

(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.

. 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,

, at *4

(quoting Russello v. United States,

(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,

(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,

(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,

(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.’”

at 4

8 (quoting Valdes,

). 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,

(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,

(1997). “This is ‘a stringent standard.’”

United States v. Grider, --- F. Supp. 3d ---

, at *7 (D.D.C. 2022) (CKK)

(quoting United States v. Sandlin,

, 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,

(D.C. Cir. 2017). Rather, the statute must “specify no standard of conduct at all.”

(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,

(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,

. Because Congress

did not supply a definition, the Court looked to its “common or popular meaning[].” See United

States v. North,

(D.C. Cir. 1990) (interpreting “corruptly” mens rea)

superseded in irrelevant part on rehr’g

(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,

(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

; see also United States v. Alfisi,

, 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,

(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.”

(b)(1)(C) (emphasis added). The selection of a definite, rather than

indefinite, article is grammatically important. Cf. Niz-Chavez v. Garland,

, 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,

(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.”

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.”

(citing Parks v. United States,

(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.”

(quoting

United States v. Cruz,

(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.”

. 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.,

(D.C. Cir.

2017) (quoting Beckles v. United States,

(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),

, at *4 (D.D.C. Dec. 28, 2022) (reiterating that every

court to confront the issue has rejected the argument that

(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,

(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.

. 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

; 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,

, 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[.]”

(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,

(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,

(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

.

More importantly, the charged conduct is not simply, for example, overpaying FOIA

fees. See, e.g.,

(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.,

(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,

, 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,

(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,

(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,

(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,

(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.

Constructive amendment is “fatal error.”

United States v. Sayan,

(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

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