Opposition Brief — Tamela M. Lee, Petitioner v. United States

No. 19-6076

________________________________________________________________

________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

TAMELA M. LEE, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

BRIAN A. BENCZKOWSKI

Assistant Attorney General

SONJA M. RALSTON

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

________________________________________________________________

________________________________________________________________

QUESTION PRESENTED

Whether

the

indictment

and

evidence

were

sufficient

to

support a county council member’s convictions for honest-services

fraud, Hobbs Act extortion, and related conspiracies where the

council member accepted money and goods from a storeowner in return

for agreeing to use her official position to influence other public

officials in resolving pending criminal cases, bringing criminal

charges, and ending a federal tax investigation.

(I)

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 19-6076

TAMELA M. LEE, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-29a) is

reported at 919 F.3d 340.

court

(Pet.

App.

The opinion and order of the district

39a-47a)

is

not

published

in

the

Federal

Supplement but is available at 2016 WL 7336529.

JURISDICTION

The judgment of the court of appeals (Pet. App. 30a) was

entered on March 18, 2019.

A petition for rehearing was denied on

April 26, 2019 (Pet. App. 48a).

On July 15, 2019, Justice

Sotomayor extended the time within which to file a petition for a

writ of certiorari to and including September 23, 2019, and the

2

petition was filed on that date.

The jurisdiction of this Court

is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District Court

for the Northern District of Ohio, petitioner was convicted of

conspiracy

to

18

1349;

U.S.C.

commit

honest-services

honest-services

mail

fraud,

in

violation

of

fraud,

in

violation

of

18 U.S.C. 1341 and 1346; Hobbs Act conspiracy, in violation of

18 U.S.C. 1951; Hobbs Act extortion, in violation of 18 U.S.C.

1951; obstruction of justice, in violation of 18 U.S.C. 1512(c)(2);

and making a false statement to law enforcement, in violation of

18 U.S.C. 1001.

Pet. App. 31a-32a.

She was sentenced to 60 months

of imprisonment, to be followed by one year of supervised release.

Id. at 33a-34a.

1.

The court of appeals affirmed.

Id. at 1a-29a.

Over the course of several years, petitioner, a county

council member in Ohio, accepted bribes from the owner of a local

convenience store in return for advising or pressuring other

officials to take acts in the storeowner’s favor.

Pet. App. 2a-

11a. For example, petitioner accepted bribes in return for helping

the

storeowner’s

teenage

nephews,

who

had

been

felonious assault after a fight with another man.

arrested

for

See id. at 3a.

In one conversation, petitioner “offered to call or email the

judge,” and the storeowner “discussed [petitioner’s] financial

problems” and “promised her that they would ‘work it out.’”

(citation omitted).

Ibid.

The next day, petitioner called a judge

3

handling

one

of

petitioner $200.

the

nephew’s

Ibid.

cases,

and

the

storeowner

gave

The storeowner also told a relative that

he had “promised to give [petitioner] an additional three hundred

dollars if she ‘finish[ed] up this matter for [him].’”

(citation omitted; second set of brackets in original).

Ibid.

Over the

next several weeks, petitioner made two calls to another judge,

appeared at a hearing, and spoke in person to the judge and the

prosecutor about the case, falsely presenting herself as a relative

and asserting that she would be a character witness.

Id. at 4a-

5a.

prosecutor,

Petitioner

also

spoke

to

the

city’s

chief

questioning why the city had arrested the nephews but not the other

man involved in the fight.

Ibid.

The chief prosecutor later

testified that she feared that, if she failed to respond to

petitioner’s concerns, petitioner “might ‘go over [her] head and

contact [her] supervisor.’”

set

of

brackets

in

Id. at 6a (citation omitted; second

original).

Throughout

the

same

period,

petitioner repeatedly picked up money from the storeowner.

Id. at

4a.

In a separate incident, a friend of the storeowner asked him

to

obtain

petitioner’s

investigation.

help

in

Pet. App. 6a-7a.

an

Internal

Revenue

Service

The friend told the storeowner

that he wanted a supportive “letter from [petitioner]” and promised

that “No matter what it costs -- I’ll pay.”

omitted).

Id. at 7a (citations

The storeowner responded that he would obtain a letter

from petitioner “with a governmental stamp.”

Ibid. (citation

4

omitted).

When

petitioner

prepared

the

requested

letter

on

official letterhead and asked the storeowner to come to her house

to pick it up, she “told [the storeowner] that she was hungry and

out of cigarettes”; the storeowner responded by offering “to bring

her cigarettes and food.”

Id. at 9a.

A few days later, the

storeowner asked petitioner to mail the letter, stating that “he

had $500 to give her.”

Ibid.

In conversations with his friend,

the storeowner explained that petitioner would do “whatever” he

asked, that “her presence did change the entire situation” for his

nephews, and that she was “getting from [him] 200 to 300 a week”

in “[c]igarettes, chips, candy, and this and that” for which he

did not “charge her.”

Once

petitioner

Id. at 7a, 9a (citations omitted).

began

to

suspect

that

she

was

under

investigation, she threw away the letter she had written for the

storeowner’s friend. Pet. App. 9a. Petitioner also lied to agents

from the Federal Bureau of Investigation, telling them, among other

things, that she had never spoken to the judges or the prosecutors

handling the nephews’ case.

2.

In

December

Id. at 9a-10a.

2015,

a

federal

grand

jury

indicted

petitioner on the six counts on which she was later convicted.

Indictment; Pet. App. 31a.

The district court denied petitioner’s

motion to dismiss the honest-services and Hobbs Act counts.

id. at 39a-47a.

See

The court rejected petitioner’s contention that

the indictment failed to allege sufficient facts showing one of

5

the elements of those crimes, namely, “official act[s]” that were

the subject of petitioner’s schemes.

Petitioner proceeded to trial.

district

court

denied

Ibid.

At the close of evidence, the

petitioner’s

motion

for

judgment

of

acquittal, rejecting petitioner’s contention that the evidence was

insufficient to support a finding of an official act.

11a-12a.

12a.

Pet. App.

The jury found petitioner guilty on all counts.

Id. at

The court sentenced petitioner to 60 months of imprisonment

on each count, to run concurrently.

3.

Id. at 33a-34a.

The court of appeals affirmed.

Pet. App. 1a-29a.

As relevant here, the court of appeals rejected petitioner’s

contention that the indictment was insufficient with respect to

the honest-services and Hobbs Act counts.

Pet. App. 12a-19a.

The

court explained that, under this Court’s decision in McDonnell v.

United States, 136 S. Ct. 2355 (2016), a public official satisfies

the official-act requirement if he uses or agrees to use “his

official position to exert pressure on another official to perform

an ‘official act,’” or if he uses or agrees to use “his official

position

to

provide

advice

to

another

official,

knowing

or

intending that such advice form the basis for an ‘official act’ by

another official.”

Pet. App. 14a (quoting McDonnell, 136 S. Ct.

at 2370) (brackets omitted).

The court rejected petitioner’s

argument that “an official can only ‘provide advice’ to a second

official if the first official is in an advisory role to the

second, and an official can only ‘exert pressure’ on a second

6

official if the first official has ‘leverage or power’ over the

second official.”

Id. at 15a 9citation omitted).

The court found

that the indictment contained “sufficient facts” to support an

inference

that

agreeing

to

petitioner

“pressure

official acts.

or

had

accepted

advise”

bribes

other

in

officials

return

to

for

perform

Id. at 19a.

The court of appeals also rejected petitioner’s contention

that the evidence was insufficient to support conviction on the

honest-services and Hobbs Act counts.

Pet. App. 20a-24a.

The

court again rejected petitioner’s efforts to impose “additional

constraints on the requirements for an official to ‘provide advice’

or ‘exert pressure.’”

Id. at 21a.

In addition, the court

emphasized that “[t]he government did not have to prove beyond a

reasonable doubt that [petitioner] actually took official action,”

but only that petitioner “agreed” to do so.

Ibid.

The court

explained that, regardless of whether the particular acts that

petitioner “actually took” qualify as pressure and advice under

McDonnell, “the evidence was sufficient for a rational juror to

conclude beyond a reasonable doubt that [petitioner] agreed to

perform” additional acts that would qualify.

Ibid. (emphasis

added).

Judge Nalbandian concurred.

Pet. App. 27a-29a.

He expressed

“reservations” about interpreting the relevant statutes to cover

“one public official’s attempt to pressure another public official

into taking an official act,” but he acknowledged that this Court

7

did not embrace his view in McDonnell.

Id. at 27a-28a.

He

concurred on the ground that the opinion of the court of appeals

“accurately sets forth the governing law and

correct result under that law.”

* * *

reaches the

Id. at 27a.

ARGUMENT

Petitioner

renews

(Pet.

25-33)

her

challenges

to

the

sufficiency of the indictment and of the evidence supporting her

conviction.

The court of appeals’ decision does not conflict with

any decision of this Court or any other court of appeals.

This

case also would be an unsuitable vehicle for reviewing petitioner’s

contentions.

1.

Further review is unwarranted.

An indictment is sufficient if it contains the elements

of the offense charged, fairly informs the defendant of the charge

against him, and includes sufficient information to enable him to

plead an acquittal or conviction as a bar to future prosecutions.

United States v. Resendiz-Ponce, 549 U.S. 102, 108 (2007).

And

evidence suffices to support a conviction if, “after viewing the

evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt.”

Jackson v. Virginia, 443

U.S. 307, 319 (1979).

This Court clarified the elements of honest-services fraud

and Hobbs Act extortion in McDonnell v. United States, 136 S. Ct.

2355 (2016).

In that case, the government agreed that, where the

“theory underlying” a charge of honest-services fraud or Hobbs Act

8

extortion is that the defendant accepted bribes, the government

must show that the defendant committed or agreed to be influenced

in an “‘official act’” -- as defined in the federal bribery

statute, 18 U.S.C. 201(a)(3) -- in exchange for a thing of value.

Id. at 2365.

The Court explained that “[t]he text of § 201(a)(3)

sets forth two requirements for an ‘official act.’”

Id. at 2368.

First, the government must identify a “‘question, matter, cause,

suit, proceeding or controversy’” -- in other words, “a formal

exercise of governmental power that is similar in nature to a

lawsuit before a court, a determination before an agency, or a

hearing before a committee.”

Id. at 2368, 2372.

Second, the

government must prove that the defendant “made a decision or took

an action ‘on’ that question, matter, cause, suit, proceeding, or

controversy, or agreed to do so.” Id. at 2368. The Court explained

that a public official may take a decision “on” a matter by “using

his

official

position”

either

“to

exert

pressure

on

another

official to perform an ‘official act’” or “to provide advice to

another official, knowing or intending that such advice will form

the basis for an ‘official’ act by another official.”

Id. at 2370.

In this case, the government identified at least four separate

“questions or matters,” McDonnell, 136 S. Ct. at 2374:

each of

the pending criminal cases against the storeowner’s two nephews,

the bringing of criminal charges against the man with whom the

nephews

had

fought,

and

the

IRS

investigation

in

storeowner’s friend had asked petitioner to intervene.

which

the

See Pet.

9

App. 43a-44a.

And the government alleged and introduced evidence

that petitioner, “using [her] official position,” both exerted

“pressure” on other officials to act on those questions or matters

and “provide[d] advice” to other officials, “knowing or intending

that such advice will form the basis for” action on those questions

or matters.

136 S. Ct. at 2370; see Pet. App. 12a-24a.

As a

result, the indictment and evidence were sufficient to support

petitioner’s conviction.

Petitioner renews (Pet. 25-33) her claim

that the government’s allegations and evidence were insufficient

because “the ‘exerting pressure’ option [under McDonnell] requires

an official to have authority or leverage over the other official”

and because “the ‘providing advice’ option is limited to public

officials who have an advisory role in relation to the other

official.”

Pet. App. 44a.

McDonnell, however, does not express

such limitations.

McDonnell explained the official-act requirement is satisfied

if a defendant “us[es] his official position to exert pressure on

another official to perform an ‘official act,’ or to advise another

official, knowing or intending that such advice will form the basis

for an ‘official act.’” 136 S. Ct. at 2371; see, e.g., id. at 2372

(“Setting up a meeting

* * *

does not qualify as a decision or

action on the pending question

* * *

as long as the public

official does not intend to exert pressure on another official or

provide advice, knowing or intending such advice to form the basis

for an ‘official act.’”); ibid. (“A jury could conclude, for

10

example, that the official was attempting to pressure or advise

another official on a pending matter.

And if the official agreed

to exert that pressure or give that advice in exchange for a thing

of value, that would be illegal.”); id. at 2372 (“[The public

officer’s] decision or action may include using his official

position to exert pressure on another official to perform an

‘official act,’ or to advise another official, knowing or intending

that such advice will form the basis for an ‘official act’ by

another official.”)

Petitioner proposes “additional restrictions

on the meaning of ‘provide advice’ and ‘exert pressure,’” Pet.

App.

18a,

which

would

require

the

government

to

show

that

petitioner either held “leverage” over the other official or held

an “advisory or other relationship such that the other officials

could be expected to follow [petitioner’s] advice,” Pet. 25.

The

court of appeals noted, however, that “nowhere in McDonnell did

the Supreme Court state that it was creating such a rule.”

Pet.

App. 15a; see id. at 18a.

In any event, petitioner’s sufficiency challenges fail even

under petitioner’s approach.

In this case, petitioner spoke to

judges and prosecutors about pending criminal cases, and the

storeowner stated that her involvement “did change the entire

situation.”

Pet. App. 7a (citation omitted).

A trier of fact

could reasonably infer that petitioner possessed “leverage” that

she could use to affect the outcomes of pending criminal cases, or

that petitioner’s relationship with the other officials was such

11

that

“the

other

officials

could

[petitioner]’s advice,” Pet. 25.

be

expected

to

follow

Similarly, the chief prosecutor

testified that she feared that, if she failed to respond to

petitioner’s concerns, petitioner could “go over [her] head.” Pet.

App.

6a

(citation

omitted).

Again,

a

trier

of

fact

could

reasonably infer that petitioner, a county council member, held

leverage over the chief prosecutor and the city prosecutor’s

office,

or

that

the

petitioner’s advice.

prosecutors

could

be

expected

to

follow

Finally, “[t]he government [also] presented

evidence that [the storeowner said] he had given [petitioner] $200

and had promised to give her an additional $300 if she ‘finish[ed]

up this matter.’”

whether

the

Id. at 23a (citation omitted).

particular

acts

that

petitioner

Regardless of

“actually

took”

qualify as pressure or advice within the meaning of McDonnell, at

a minimum, “the evidence was sufficient for a rational juror to

conclude beyond a reasonable doubt that [petitioner] agreed to

perform” additional acts that would qualify as pressure or advice

even on petitioner’s theory.

Id. at 21a (emphasis added); see

McDonnell, 136 S. Ct. at 2371 (“[A] public official is not required

to actually make a decision or take an action on a ‘question,

matter, cause, suit, proceeding or controversy’; it is enough that

the official agree to do so.”).

3.

Petitioner errs in contending (Pet. 31-33) that the

decision below conflicts with the decisions of the Second and Third

Circuits in United States v. Silver, 864 F.3d 102 (2d Cir. 2017),

12

cert. denied, 138 S. Ct. 738 (2018), and United States v. Fattah,

914 F.3d 112 (3d Cir. 2019).

In Silver, a state legislator

received kickbacks in return for political favors.

at 106-110.

See 864 F.3d

Most of those favors involved the state legislator’s

own acts (for example, votes on legislation) rather than pressure

on or advice to other officials.

thus largely inapposite.

See id. at 108-110.

Silver is

And as the court of appeals observed,

Silver merely reversed a conviction resting on pre-McDonnell jury

instructions and remanded the case for a new trial with proper

instructions. Pet. App. 16a-17a. Silver did not find the evidence

insufficient to support conviction, and it “never indicated that

it was reversing based on a finding that the defendant was unable

to exert pressure on other officials because he lacked professional

leverage over them.”

Id. at 17a.

In Fattah, a congressman accepted bribes from a constituent

in

exchange

for

various

political

favors,

including

sending

emails, writing letters, and making a phone call to the President

and

a

Senator

ambassador.

urging

the

constituent’s

See 914 F.3d at 137-139.

appointment

as

an

Like the Second Circuit in

Silver, the Third Circuit in Fattah merely reversed a conviction

resting on pre-McDonnell jury instructions and remanded the case

for a new trial with proper instructions.

court

neither

found

the

evidence

See id. at 156.

insufficient

to

The

support

conviction nor adopted the legal theory that petitioner here

develops.

See ibid.

13

4.

In any event, this case would be an unsuitable vehicle

for addressing the question presented.

As the court of appeals

observed,

jury

petitioner

herself

proposed

instructions

that

tracked McDonnell’s definition of “‘official act’” and that did

not separately require the jury “to find that [petitioner] held an

advisory role or held power or leverage over the officials with

whom she communicated.”

at

3-6

(Jan.

25,

Pet. App. 20a-21a; see D. Ct. Doc. 100,

2017).

The

district

court

instructions with only minor stylistic variations.

653-655.

adopted

those

See Trial Tr.

And petitioner did not object to those instructions in

the district court, in the court of appeals, or in her petition

for a writ of certiorari in this Court.

See Pet. App. 21a-22a;

Pet. 25-33.

Although petitioner’s position on the jury instructions does

not itself foreclose her challenges to the sufficiency of the

indictment and the evidence, see Musacchio v. United States, 136

S. Ct. 709, 715 (2016), it does make this case an inappropriate

vehicle for reviewing the question presented.

This Court has

“treated an inconsistency between a party’s request for a jury

instruction and its position before this Court” as a relevant

“consideration[] bearing on” whether to grant a writ of certiorari.

United States v. Wells, 519 U.S. 482, 488 (1997).

be

considerable

because

of

prudential

instructions

itself requested.”

objection

that

“[T]here would

to

reversing

a

judgment

petitioner

accepted,

and

indeed

City of Springfield v. Kibbe, 480 U.S. 257,

14

259 (1987) (per curiam).

In addition, the posture of this case

means

presents

that

the

petition

highly

factbound

questions

regarding the inferences that could properly be drawn from the

allegations and evidence -- rather than purely legal questions

regarding the accuracy of the jury instructions.

And this Court

“do[es] not grant a certiorari to review evidence and discuss

specific facts.”

United States v. Johnston, 268 U.S. 220, 227

(1925);

Ct.

see

Sup.

R.

10.

A

writ

of

certiorari

should

accordingly be denied here.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

NOEL J. FRANCISCO

Solicitor General

BRIAN A. BENCZKOWSKI

Assistant Attorney General

SONJA M. RALSTON

Attorney

DECEMBER 2019