United States District Court, D. Delaware
C. Weiss, Acting U.S. Attorney, and Edmond Falgowski,
Assistant U.S. Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Wilmington, DE Attorneys for Plaintiff.
A. Bostic, Federal Public Defender, and Tieffa N. Harper,
Senior Litigator, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Wilmington, DE Attorneys for Defendant.
U.S. District Judge:
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.
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)
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
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).
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).
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)
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).
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 ...