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United States v. Brophy

United States District Court, Third Circuit

August 30, 2013



Pending before the Court in this criminal matter are numerous pretrial motions, as well as the parties' request for the Court to determine certain jury instructions in advance of trial.


A grand jury returned a three-count indictment against Defendant Kenneth Michael Brophy ("Brophy" or "Defendant") on April 2, 2013. (D.I. 25, 26) ("Indictment" or "Ind.") The Indictment alleges that between November 2008 and May 2010, Brophy was employed by the United States Department of State ("State Department") as a personal service contract employee for the Bureau of International Narcotics and Law Enforcement ("INL") at the United States Embassy in Kabul, Afghanistan ("Embassy"). (Ind. ¶ 1)

In particular, Brophy supervised Company #1, an Afghan contracting firm specializing in architectural and engineering design, in relation to certain INL contracts. (Id. ¶ 4) Specifically, Company #1 was the prime contractor on multiple U.S. government contracts, including two United States Army Corps of Engineers ("US ACE") contracts relating to design and construction of Afghan police headquarters facilities. (Id. ¶ 5) These two U.S. ACE contracts were worth a total of more than $7 million. (Id.) Between August 2008 and April 2009, the USACE issued multiple suspension-of-work, show-cause, and other letters to Company #1 regarding unsatisfactory performance on the contracts; ultimately, USACE terminated both contracts in April 2009. (Id. ¶ 6) Company #1 then appealed both terminations, first within the USACE and subsequently to the Armed Services Board of Contract Appeals. (Id.) Eventually, Company #1 and the USACE settled the claims for approximately $500, 000. (Id.)

The Indictment alleges that between January and December 2009, Brophy undertook various actions to assist Company #1 in its efforts to appeal the termination of its contracts with the USACE. (See, e.g. Ind. ¶ 11) Among other things, Brophy allegedly told a USACE official he was pleased with Company #l's performance, helped Company #1 with its appeal, and submitted a letter to the Chief Consul, Visa Services, Consular Office, at the Embassy - on official Embassy letterhead - using his official title and recommending that Company #l's owner be issued a visa to travel to Washington, DC. (Id.) The Indictment further alleges that, in August or September 2009, Brophy received $30, 000 in cash from Company #1 's owner. (Id.)

The Indictment charges Brophy with the following criminal offenses: (1) conspiracy, in violation of 18 U.S.C. § 371; (2) receipt by a public official of an illegal gratuity, in violation of 18 U.S.C. § 201(c)(1)(B);[1] and (3) receipt by a government employee of an illegal payment for assisting with a claim against the government, in violation of 18 U.S.C. §§ 205(a)(1)[2] and 216(a)(2).

In May and June 2013, Brophy filed numerous pretrial motions.[3] With the Court's consent, the parties also filed their proposed jury instructions relating to several material legal disputes that have arisen between them. (See D.I. 49) On July 10, 2013, the Court held a hearing on the pending motions and the proposed jury instructions.[4] See Transcript (D.I. 77) ("Tr."). A pretrial conference is scheduled for September 19 and trial is set to commence on September 30. (D.I. 49)


Motion to Strike Allegations of Indictment (D.I. 35)

Brophy seeks to strike the allegations in the Indictment that he was a government "employee" within the meaning of the statutes pursuant to which he is being prosecuted. As grounds he cites equal protection, improper delegation of legislative power to executive agencies, and void for vagueness doctrine. (See D.I. 35 at 1, 5; D.I. 65 at 4-5; Tr. at 7 ("You cannot have each agency free to define an element of a criminal violation as it sees fit by fiat because that is called a denial of equal protection, and that would be called void for vagueness."))

The Court agrees with the government that Defendant's motion is, in essence, a motion to dismiss Count 3 of the Indictment, as well as the portions of Count 1 that are based on Section 205. (D.I. 44 at 2 n. 1) As such, the applicable legal standards are well-settled:

[A]n indictment is facially sufficient if it (1) contains the elements of the offense intended to be charged, (2) sufficiently apprises the defendant of what he must be prepared to meet, and (3) allows the defendant to show with accuracy to what extent he may plead a former acquittal or conviction in the event of a subsequent prosecution.... Generally, an indictment will satisfy these requirements where it informs the defendant of the statute he is charged with violating, lists the elements of a violation under the statute, and specifies the time period during which the violations occurred... .
Federal Rule of Criminal Procedure 12(b)(3)(B) allows a district court to review the sufficiency of the government's pleadings to . . . ensur[e] that legally deficient charges do not go to a jury.... [T]he Government is not required to set forth its entire case in the indictment.... [Hence, ] the scope of a district court's review at the Rule 12 stage is limited. [A] pretrial motion to dismiss an indictment is not a permissible vehicle for addressing the sufficiency of the government's evidence. The government is entitled to marshal and present its evidence at trial, and have its sufficiency tested by a motion for acquittal pursuant to Federal Rule of Criminal Procedure 29. . . . In evaluating a Rule 12 motion to dismiss, a district court must accept as true the factual allegations set forth in the indictment.. . . Thus, a district court's review of the facts set forth in the indictment is limited to determining whether, assuming all of those facts as true, a jury could find that the defendant committed the offense for which he was charged.

United States v. Huet, 665 F.3d 588, 595-96 (3d Cir. 2012) (internal quotation marks and citations omitted). Applying these standards, the Court concludes that Defendant's motion to strike must be denied.[6]

All of Brophy's challenges to treatment of him as a government "employee" for purposes of Section 205 are premised on a single assertion: that the only applicable definition of "employee" is that set out in 5 U.S.C. § 2105(a). In Brophy's view, Section 2105 limits the definition of government "employee" to those who are "appointed in the civil service." Since it is undisputed that Brophy was not appointed in the civil service, it follows under Brophy's reasoning that at least portions (if not the entirety) of Counts 1 and 3 have to be stricken (and/or dismissed). (D.I. 65 at 5; Tr. at 5)

Section 2105(a) provides:

For purposes of this title, "employee", except as otherwise provided by this section or when specifically modified, means an officer and an individual who is -
(1) appointed in the civil service by one of the following acting in an official capacity -
(A) the President;
(B) a Member or Members of Congress, or the Congress;
(C) a member of uniformed service;
(D) an individual who is an employee under this section;
(E) the head of a Government controlled corporation; or
(F) an adjutant general designated by the ...

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