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United States v. Mosley

United States District Court, D. Delaware

November 17, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
LORRAINE Y. MOSLEY, Defendant.

          David C. Weiss, Acting U.S. Attorney, and Edmond Falgowski, Assistant U.S. Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Wilmington, DE Attorneys for Plaintiff.

          Edson A. Bostic, Federal Public Defender, and Tieffa N. Harper, Senior Litigator, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Wilmington, DE Attorneys for Defendant.

          MEMORANDUM OPINION

          STARK, U.S. District Judge:

         Pending before the Court is Defendant's motion to dismiss the indictment for failure to state an offense pursuant to Federal Rule of Civil Procedure 12(b)(3)(B)(v). (D.I. 34) The motion is fully briefed and the Court heard argument on October 26, 2017. For the reasons discussed below, the Court will deny Defendant's motion.

         I. BACKGROUND

         On March 7, 2017, a grand jury charged Defendant Lorraine Mosley (“Mosley” or “Defendant”), a former State of Delaware corrections officer, with conspiracy to commit extortion under color of official right (Count 1), and extortion under color of official right (Count 2), in violation of the Hobbs Act, 18 U.S.C. § 1951(a). (See D.I. 27) The indictment alleges that Mosley, while working as a corrections officer at Delores J. Baylor Women's Correctional Institution (“WCI”), conspired and agreed “to receive a cash payment in exchange for smuggling prison contraband, specifically, a cell phone, into WCI for [a] WCI inmate” and executed on that agreement by “arranging] a meeting with the inmate's associate, ” going to said meeting to accept “a cash payment of $100 and a cell phone, ” “smuggling] the cell phone into WCI, conceal[ing] it in a staff bathroom, and then [telling] the WCI inmate where the cell phone was hidden.” (D.I. 27 at ¶¶ 3-4)

         On July 3, 2017, Defendant filed her motion to dismiss, arguing that her alleged actions do not constitute “official acts” under § 1951(a), as interpreted by McDonnell v. United States, 136 S.Ct. 2355 (2016). (See D.I. 36 at 1) On August 21, 2017, the government responded. (See D.I. 39) The Court heard argument on the motion during a status conference on October 26, 2017.

         II. LEGAL STANDARDS

         Federal Rule of Criminal Procedure 7(c)(1) requires an indictment to “be a plain, concise, and definite written statement of the essential facts constituting the offense charged.” “[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 [s]he must be prepared to meet, and (3) allows the defendant to show with accuracy to what extent [s]he may plead a former acquittal or conviction in the event of a subsequent prosecution.” United States v. Huet, 665 F.3d 588, 595 (3d Cir. 2012) (internal quotation marks omitted). An indictment is to be upheld “unless it is so defective that it does not, by any reasonable construction, charge an offense.” United States v. Vitillo, 490 F.3d 314, 324 (3d Cir. 2007) (internal quotation marks omitted).

         “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.” Huet, 665 F.3d at 595 (internal quotation marks omitted). A defendant can challenge the sufficiency of a indictment either on the basis that it “fails to charge an essential element of the crime” or that “the specific facts alleged . . . fall beyond the scope of the relevant criminal statute, as a matter of statutory interpretation.” United States v. Willis, 844 F.3d 155, 162 (3d Cir. 2016) (internal quotation marks omitted).

         III. DISCUSSION

         Defendant seeks dismissal of the indictment for failure to state an offense, contending it both fails to charge an essential element of the offense and that the specific acts alleged fall beyond the scope of the Hobbs Act. (See D.I. 36 at 5) Specifically, Defendant argues that the indictment fails to allege Defendant took any “official act” under § 1951(a), in view of the Supreme Court's interpretation of that term in McDonnell. (See D.I. 36 at 4-5) The government argues that Defendant committed an “official act” by agreeing to and then smuggling prison contraband into WCI and delivering it to an inmate. (See D.I. 39 at 8-9)

         To survive Mosley's motion to dismiss, the government must adequately charge the elements of conspiracy to commit extortion and extortion under 18 U.S.C. § 1951(a). See Huet, 665 F.3d at 596. “Pursuant to § 1951, a criminal offense occurs when an individual ‘obstructs, delays, or affects commerce . . . by extortion, ' with extortion defined as ‘the obtaining of property of another, with his consent, . . . under color of official right.'” United States v. Repak, 852 F.3d 230, 252 (3d Cir. 2017) (quoting 18 U.S.C. § 1951(a)-(b)). To prove extortion under color of official right, the government must “show that a public official has obtained a payment to which [s]he was not entitled, knowing that the payment was made in return for official acts.” Evans v. United States, 504 U.S. 255, 268 (1992).

         The parties in McDonnell agreed that the term “official act” should be defined in reference to the federal bribery statute. See McDonnell, 136 S.Ct. at 2365. Under the federal bribery statute, “official act” is defined as “any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be ...


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