The Anatomy of Public Corruption

Pete Bennett: PBS NEWS HOUR June 2007

PBS NEWS HOUR

The Battle for Jobs, Data, Information and Jobs

Pete Bennett with Oracle Spokesman Robert Hoffman

Pete Bennett

June 2007
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PBS

June 2007
Evicted 2007

Mysterious Loss of Contracts

Mysterious Medical

Infections

Beatings
Attempts on his life

The Mormon Connection

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When friends of God came knocking at my door it didn't take long for my truck to explode.

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John

 

Quick Facts

June 2007

Evicted 2007

Mysterious Loss of Contracts

Mysterious Medical

Infections

Beatings
Attempts on his life

Nancy Pelosi

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John

Mysterious Loss of Contracts

Mysterious Medical

Infections

Beatings
Attempts on his life

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John


Research Portal

TRANSCRIPT

NewsHour Correspondent: Business leaders in Silicon Valley and other high-tech centers say they need more foreign workers to keep America competitive. Microsoft’s chairman Bill Gates made the case before Congress this spring.

BILL GATES, Chairman, Microsoft: Now we face a critical shortage of scientific talent. And there’s only one way to solve that crisis today: open our doors to highly talented scientists and engineers who want to live, work and pay taxes here.

SPENCER MICHELS: The law allows 65,000 specialized workers, ranging from engineers to architects, and even including fashion models, into the U.S. each year, plus another 20,000 graduate degree holders. They, plus some categories like teachers not included in the cap, get what is called an H-1B visa.

With that temporary pass, they can stay and work here for up to six years. Today, there are more than 260,000 H-1B employees in the U.S.

Companies insist they need foreign workers because there are not enough qualified Americans to fill the jobs.

ROBERT HOFFMAN, Oracle Corporation: The Senate and the House have made this issue a high priority.

SPENCER MICHELS: Robert Hoffman is a lobbyist for software maker Oracle, which currently has about 1,850 H-1B employees. He says the company needs software and computer engineers right away.

ROBERT HOFFMAN: Companies like Oracle and Microsoft have hundreds of job openings currently right now. We want to hire the American worker, but if they’re not there, what alternatives do we have? Either we hire the H-1Bs, or if the H-1Bs aren’t available, we’ll have to move work offshore. We’ll move the work where the workers are.

SPENCER MICHELS: According to the U.S. Citizenship and Immigration Service’s Sharon Rummery, the demand this year for H-1B visas was enormous.

SHARON RUMMERY, U.S. Citizenship and Immigration Services: On the very first day that the H-1B visa became available, we received more applications than we had available slots. As it turned out, we got more than 119,000 H-1B visa applications.

SPENCER MICHELS: So what do you do?

SHARON RUMMERY: When that happens, we go to a computer-generated, random selection process.

Securing the best and brightest

Christian Plante

Canadian H-1B Visa Holder

You want to make sure you make it easy for people to come here to the United States, and then you want to make sure that companies have the right means to keep them here.

SPENCER MICHELS: A large coalition of high-tech firms, called Compete America, and co-chaired by Oracle's Hoffman, says the global economy demands a free flow of workers.

ROBERT HOFFMAN: Half, or more than half in some instances, of our graduate students that are pursuing masters and PhDs are foreign-born. Companies like Google, Yahoo, eBay were all founded by immigrants. So what we're trying to do is making sure that we have the very best and the very brightest here in the country innovating and creating jobs.

SPENCER MICHELS: People like Umar Mughal, who lives today with his wife in an apartment in San Jose, he came to America from Pakistan to attend Purdue University in electrical engineering. After graduation, he got a job in Silicon Valley and got married on a visit home.

For the past six years, he's been working in marketing for Altera, a company that makes specialized computer chips and employs about 160 H-1B workers. He has applied for a green card, a work permit for permanent residents, so he can stay here after his visa expires.

UMAR MUGHAL, Pakistani H-1B Visa Holder: I wanted to be in tech. That's what I was passionate about, and I wanted to start working here. The other thing is, once I moved, I really like the lifestyle over here.

SPENCER MICHELS: We talked to Mughal and two other H-1B holders from Canada and India in Altera's cafeteria. All three agreed that, for its own benefit, America needs to encourage, not block, foreign workers. Christian Plante came here from Quebec.

CHRISTIAN PLANTE, Canadian H-1B Visa Holder: The goal is really to snatch talent and keep the talent here because it's going to go somewhere else. It's going to go to China; it's going to go to the European Union. You want to make sure you make it easy for people to come here to the United States, and then you want to make sure that companies have the right means to keep them here.

DEEPAK BOPPANA, Indian H-1B Visa Holder: I think reverse brain drain is, to a certain extent, very real. I've known friends who have gone back to India because of the booming economy there.

A 'money game'


Pete Bennett

Software Developer

It's really a game of two for one. I can get two H-1B visa workers for one American.

SPENCER MICHELS: But software developer and amateur guitar player Pete Bennett doesn't buy any of the arguments to bring in H-1B workers. Bennett, who runs a Web site called "No More H-1B," says he has a hard time finding work, and he blames the H-1B visa program.

PETE BENNETT, Software Developer: It's really a game of two for one. I can get two H-1B visa workers for one American. Many of the U.S. workers that were displaced are in the higher wage category. This is a money game; this is about big money.

SPENCER MICHELS: The workers we met at Altera said they were paid equally with Americans, but a recent survey from the Economic Policy Institute, a Washington think-tank, found that more than half of new H-1B high-tech employees were paid below the starting salary of an entry-level computer scientist.

The Department of Labor says that, under the law, companies where foreigners make up at least 15 percent of the workforce must attest that they've tried to hire Americans first. But most companies hire fewer foreigners than that, and they have no such requirement. They simply have to post internally their intention to hire a foreigner.

For those companies, a Labor Department document states, "H-1B workers may be hired even when a qualified U.S. worker wants the job, and a U.S. worker can be displaced from the job in favor of the foreign worker." That's a fact that frustrates these American high-tech professionals who are out of work.

Laid off Americans

SPENCER MICHELS: After being laid off, Andre Levy spent two-and-a-half years getting a master's degree to be more competitive. He's been looking for a job for more than a year.

ANDRE LEVY, American Citizen: I have a degree from a world-class university here in the bay. I have a master's degree from a pretty darn good university. I am not sure exactly what else I can do.

SPENCER MICHELS: He says he knows H-1Bs generally get paid less, because when he was a manager, he hired them.

ANDRE LEVY: It was a cost issue. I mean, they were cheaper because they were short-term. We didn't pay benefits or any of that sort of stuff. We had a number of folks from Russia, as well. They were willing to live four in a two-bedroom apartment.

SPENCER MICHELS: Kim Doty was laid off in January.

KIM DOTY, American Citizen: Not only are some of my jobs being outsourced, but when I look at other positions, I'm being told that I'm too qualified to take some of those roles. And a lot of it, I think, has to do with my salary, at this point demanding a lot higher salary than what they're looking at.

SPENCER MICHELS: Foreign workers also come with the skills industry wants now. And American workers say they need retraining to stay competitive.

But training funds have been cut, says the director of this job center in Silicon Valley. Companies pay the government $1,000 for each H-1B worker they hire, money to be used for job training. But much of it has been perted out of Silicon Valley to poorer communities, says Mike Curran.

MIKE CURRAN, North Valley Job Training Consortium: So what we used to have was millions of dollars of training six or seven years ago, because the H-1B created a pool for that, and we could take existing workers here and give them new networks, and new technologies, and new access to new training, has evaporated. All of that money has been taken off of the table.

Congress debates H-1B visas


Sen. Dick Durbin

(D) Illinois

We need to really put this back on track. And the first rule ought to be very simple: American workers take the jobs first.

SPENCER MICHELS: The H-1B debate is playing out in Congress right now as an important element in the broader immigration discussions. President Bush recently called on Congress to raise the cap. Republican Senator John Cornyn has been leading efforts in the Senate to get more H-1B visas.

SEN. JOHN CORNYN (R), Texas: There's been a lot of misunderstanding and some suggestion that you're actually bringing in foreign workers, paying them less, and putting Americans out of jobs. That's not the case. This is to supplement really our lack of qualified people in some of these high-skilled areas.

SEN. DICK DURBIN (D), Illinois: There are some who say, "Well, clearly, we need more H-1B visas." I disagree with that completely.

SPENCER MICHELS: On the other side, Democratic Senator Dick Durbin fears that foreigners will return to their own countries armed with technology learned here and compete with American companies.

SEN. DICK DURBIN: The system is clearly being abused. We need to really put this back on track. And the first rule ought to be very simple: American workers take the jobs first.

SPENCER MICHELS: As Congress continues to wrangle over immigration, the H-1B visa controversy is expected to remain a major issue in the debate.

JIM LEHRER: The Senate deal on immigration reached today would raise the cap on H-1B visas to 115,000, which is nearly double the current number allowed, and it would open the door to future increases.

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East Bay Leadership Council

East Bay Leadership Council

Leadership so good that the bodies of homeless found down the street. 

Bennett Customer

Founders Indicted

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Many of the public officials and members of the Contra Costa Leadership Council would know of the stories, events and incidents. It is a vicious group bent on winning political postures which leads to control of the county and cities.

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Fremont Partners raises $920 million




Bill Gates funding and the 1990 Witness Murder connected to Fremont Group, Bechtel and Bennett vs. Southern Pacific


Fremont Partners raises $920 million 


San Francisco's Fremont Partners said Monday that it has raised $920 million for its Fremont Partners III venture fund to focus on middle market investments.

Fremont exceeded its $850 million target. The firm's previous fund was Fremont Partners II, a $605 million fund established in 1996.

Investors participating in both funds have increased their commitments by 75 percent, while new investors comprise approximately 30 percent of Fremont Partners III.

Investors in the latest fund include AMR Investments, Bill & Melinda Gates Foundation, Boeing, Delta Air Lines, Fremont Group, General Motors Asset Management, MetLife, Vanderbilt University and Verizon Investment Management.

"Our fundraising success in today's difficult marketplace is a result of investor confidence in Fremont Partners' team, the consistency of our middle market strategy and the return opportunities available in the middle market," said James Farrell, managing director.

Fremont Partners makes substantial equity investments in companies worth up to $1 billion, typically seeking to deploy $50 million to $250 million in each opportunity.

"The strong growth in revenues, cash flow and earnings achieved by our existing portfolio companies in 2001 demonstrated the merits of our investment strategy and contributed to the success of fundraising," added Mark Williamson, managing director.

Fremont Partners, founded in 1991, is the principal entity through which Fremont Group conducts its private equity investing. Fremont Group, a private investment firm, is majority owned by members of the Bechtel family and is responsible for managing approximately $11 billion in assets.

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Move the Needle CEO Challenge: Lance Fritz, Union Pacific

Move the Truth

The current CEO and Chairman plus their billionaire owners should be charged with racketeering, obstruction of Justice
Kill the witness in Bennett vs. Southern Pacific
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Union Pacific: Chairman Lance M. Fritz


Lance M. Fritz

Chairman, President and Chief Executive Officer

Union Pacific Corporation

Lance M. Fritz is Union Pacific chairman, president and chief executive officer. He became chairman of the board effective October 1, 2015. Fritz became president and chief executive officer February 5, 2015, when he also was elected to the corporation’s board of directors.

He previously served as president and chief operating officer of Union Pacific Railroad, a position he had held since February 2014, after serving as executive vice president-Operations and vice president-Labor Relations, respectively. He began his Union Pacific career in July 2000 as vice president and general manager-Energy in the company’s Marketing and Sales department.

Before joining Union Pacific, Fritz worked for Fiskars Inc., Cooper Industries, and General Electric. He is a graduate of Bucknell University and earned a master’s degree in management from the Kellogg School of Management at Northwestern University.

Fritz is a member of the board of directors for the Association of American Railroads. He also serves on the U.S. Chamber of Commerce board and executive committee. He is a member of the Business Roundtable, the STRATCOM Consultation Committee, and the Georgia Institute of Technology President’s Advisory Board. Fritz is deeply involved with organizations in his local community. He serves on the Omaha Chamber of Commerce executive committee, the board of directors for Nebraska Medicine, Omaha Symphony, and Omaha’s Henry Doorly Zoo & Aquarium.

Fritz and his wife, Julie, have two children and are committed to helping women and children at risk in the Omaha community.

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Munger, Tolles & Olson and a murder near Rambus





Litigation

From Hollywood to the Gulf of Mexico to Wall Street, Munger, Tolles & Olson is tackling some of the most high-profile cases across a range of industries.

Our litigators have fought to stop music and film piracy, are guiding large financial institutions through significant litigation stemming from the mortgage crisis and are entrenched in defending a client in actions and investigations involving the oil spill in the gulf.

We work closely with clients to proactively approach any situation, whether to successfully avoid litigation or serve as advocates in court or other proceedings. Our low leverage means matters are staffed efficiently with clients benefiting from a tightly knit team. The firm possesses a long track record of achieving results and an unequaled reputation for finding creative solutions.

Munger Tolles also has a “deep bench of trial lawyers,” as noted by The American Lawyer. We are frequently tapped to take bet-the-company cases to trial in jurisdictions nationwide. Our success in some of the last decade’s most prominent trials − from representing bond king Jeffrey Gundlach in his case against Trust Company of the West to guiding Rambus through numerous trials related to its patent rights − stems from the high caliber of our litigators, from the most seasoned attorneys to our most junior colleagues.

The firm is recognized in Chambers USA’s top tier for litigation in California, and many of the firm’s litigators are individually ranked. Munger Tolles has four Fellows in the American College of Trial Lawyers and two former chairs of the ABA Section of Litigation.

We believe that clerkships provide valuable experience. More than 70 percent of our attorneys served as law clerks to federal judges. Beyond clerkships, our attorneys also have experiences that bring an additional dimension to our client service. Many of our litigators honed their courtroom skills while serving as assistant U.S. attorneys and a number of our lawyers have advanced degrees in relevant subject matter areas, including physics, engineering and medicine.

A sample of the firm’s recent litigation and trial work includes representing:

  • DoubleLine Capital and certain of its founders, including CEO Jeffrey Gundlach, in winning a $66.7 million jury verdict against his former employer, Trust Company of the West (TCW). The jury awarded no damages on TCW’s complaint against DoubleLine and the individual defendants.
  • Transocean in successfully defending the drilling company in civil and criminal litigation arising from the April 20, 2010 oil spill in the Gulf of Mexico. Munger Tolles obtained a trial verdict in the federal multidistrict litigation, concluding that Transocean was not grossly negligent and, therefore was (1) fully indemnified by BP for compensatory damages and (2) not liable for punitive damages. In actions brought by the U.S. Department of Justice, Munger Tolles secured a favorable settlement.
  • Rambus in litigation involving the world’s largest DRAM manufacturers in a closely watched 10-year battle for the rights to the fundamental design of memory chips used in nearly all major computing devices.
  • Bank of America as lead counsel in a $10 billion lawsuit filed by AIG alleging fraud in connection with AIG’s investments in residential mortgage-backed securities originated or underwritten by BofA and its subsidiaries between 2005 and 2007.
  • Vostu, Brazil’s market leader in social gaming, in its defense and countersuit against copyright infringement claims made in the United States and Brazil by popular U.S. gaming company Zynga.
  • Sony Music EntertainmentEMI GroupWarner Music Group and Universal Music Group in gaining a permanent injunction to shut down one of the most pervasive online file-copying services − LimeWire − and obtained a $105 million settlement in the midst of a damages trial.
  • Abbott Laboratories, as co-counsel, in obtaining a defense jury verdict on antitrust claims brought by GlaxoSmithKline, another of the world’s largest pharmaceutical companies, relating to Abbott’s repricing of the drug Norvir. The Oakland, Calif. jury rejected GlaxoSmithKline's $571 million antitrust damage claim, which would have been subject to automatic trebling.
  • Wells Fargo in its settlement of a consolidated residential mortgage backed securities class action litigation. Accused of making misrepresentations in connection with the sale of more than $35 billion in mortgage-backed securities, the settlement was successfully reached at $125 million.
  • LG in its defense against a class action antitrust case stemming from allegations of price-fixing among manufacturers of display panels. The matter was successfully resolved on behalf of LG in April 2012.
  • The Motion Picture Association of America in obtaining a permanent injunction against the operators of Zediva, an unlicensed video-on-demand service.
  • Berkshire Hathaway in successfully defending multijurisdictional stockholder litigation challenging acquisitions by Berkshire of Burlington Northern Santa Fe and Wesco Financial Corporation.


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Kirkland & Ellis /PG&E/Judge Alsup/Obstruction of Justice/

Meet The Lakers

Kobe Bryant

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Pete Bennett met Kobe Bryand at Sieberlich Accountancy while giving his friend the receptionist for lunch. Nicest guy ever, was not signed as he was just out of high school and considering his options.

The Murderous Billionaire

Southern Pacific Chairman

Pete Bennett sued Philip Anschutz in 1987 but lost when witnesses vanished before trial. Years married a non-practicing Mormon who unknown to Bennett was raised by members of Alamo 1st Ward but unknown element was she raised by the same Mormon Attorney that ordered the murder on 1990.

Meet the Witness Killers

Southern Pacific Chairman

Pete Bennett sued Philip Anschutz in 1987 but lost when witnesses vanished before trial. Years married a non-practicing Mormon who unknown to Bennett was raised by members of Alamo 1st Ward but unknown element was she raised by the same Mormon Attorney that ordered the murder on 1990.

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UNITED STATES OF AMERICA, Plaintiff, v. STEPHEN TANABE, Defendant.

United States v. Tanabe

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Opinion

Case No: CR 11-0941 SBA

11-19-2012

UNITED STATES OF AMERICA, Plaintiff, v. STEPHEN TANABE, Defendant.


 

SAUNDRA BROWN ARMSTRONG

ORDER DENYING

MOTION TO DISMISS

Docket 39

The parties are presently before the Court on Defendant Stephen Tanabe's ("Defendant") motion to dismiss the superseding indictment under Rule 12(b) of the Federal Rules of Criminal Procedure. Dkt. 39. The United States ("government") opposes the motion. Dkt. 40. Having read and considered the papers filed in connection with this matter and being fully informed, the Court hereby DENIES the motion to dismiss, for the reasons stated below.

I. BACKGROUND

A. Factual Background

At all times relevant to the superseding indictment, Defendant was a Deputy Sheriff with the Contra Costa County Sheriff's Office, assigned to work patrol in Danville, California. Superseding Indictment ¶ 1. Beginning on a date unknown, but no later than November 2, 2010, and continuing through at least on or about January 14, 2011, Defendant and others engaged in an illegal scheme and conspiracy to defraud others by depriving them of their rights to Defendant's honest services as a Deputy Sheriff. Id. ¶ 2.

Beginning on a date no later than November 2, 2010, a private investigator, C.B., agreed to conduct "stings" of husbands and ex-husbands (hereafter "targets") for female  clients involved in divorce, child custody, and other family law disputes. Superseding Indictment ¶ 3. In cases in which the clients advised C.B. that the targets had a tendency to drink and drive, C.B. would arrange for an undercover employee to meet the target at a bar, direct the employee to entice the target to drink alcohol until he was intoxicated, and have a police officer waiting outside the bar to stop and arrest the target for driving under the influence of alcohol ("DUI"). Id.

As part of this scheme, Defendant agreed to and did participate in three DUI stings. Superseding Indictment ¶ 4. In two stings, Defendant waited outside the bar for the targets, H.A. and M.K., to exit and then stopped the targets shortly after they drove off. Id. In the third sting, Defendant arranged for another Deputy Sheriff to wait outside the bar, while he remained inside the bar with C.B., monitoring the alcohol intake of the target, D.B. Id. In all cases, the targets were stopped and arrested for DUI. Id. In his incident reports for the arrests he made, Defendant falsely stated that he was on "routine patrol" at the time of the targets' arrests. Id.

In exchange for Defendant making DUI arrests and arranging for another officer to make an arrest, C.B. compensated Defendant with cocaine and a firearm. Superseding Indictment ¶ 5. As part of the scheme, Defendant and C.B. exchanged text messages regarding coordination of the arrests and Defendant's compensation for his role in the arrests. Id. ¶ 6. The texts to and from C.B. passed through the servers of C.B.'s cell service provider, Sprint, located in Kansas City, Missouri. Id.

B. Procedural History

On December 15, 2011, a grand jury returned a four-count indictment charging Defendant with one count of conspiracy to extort under color of official right in violation of 18 U.S.C. § 1951; one count of extortion under color of official right, aiding and abetting in violation of 18 U.S.C. §§ 1951 and 2; and two counts of extortion under color of official right in violation of 18 U.S.C. § 1951. Indictment, Dkt. 1. On April 25, 2012, a grand jury returned an eight-count superseding indictment charging Defendant with one count of conspiracy to commit wire fraud and deprivation of honest services in  violation of 18 U.S.C. § 1349; three counts of wire fraud and deprivation of honest services in violation of 18 U.S.C. §§ 1343 and 1346; one count of conspiracy to extort under color of official right in violation of 18 U.S.C. § 1951; one count of extortion under color of official right, aiding and abetting in violation of 18 U.S.C. §§ 1951 and 2; and two counts of extortion under color of official right in violation of 18 U.S.C. § 1951. Superseding Indictment, Dkt. 24.

On July 16, 2012, Defendant filed a motion to dismiss the superseding indictment. Dkt. 39. The government filed an opposition on July 31, 2012. Dkt. 40. Defendant did not file a reply brief.

II. DISCUSSION

A. Legal Standard

An indictment "must be a plain, concise and definite written statement of the essential facts constituting the offense charged. . . ." Fed.R.Crim.P. 7(c)(1). A defendant may move to dismiss the indictment for failure to state an offense under Federal Rule of Criminal Procedure 12(b). "In ruling on a pre-trial motion to dismiss an indictment for failure to state an offense, the district court is bound by the four corners of the indictment." United States v. Boren278 F.3d 911, 914 (9th Cir. 2002) (citations omitted). "On [such] a motion . . . , the court must accept the truth of the allegations in the indictment in analyzing whether a cognizable offense has been charged." Id. (citation omitted).

"An indictment must provide the essential facts necessary to apprise a defendant of the crime charged; it need not specify the theories or evidence upon which the government will rely to prove those facts." United States v. Cochrane985 F.2d 1027, 1031 (9th Cir. 1993) (citing United States v. Jenkins884 F.2d 433, 438-439 (9th Cir. 1989)). An indictment is sufficient to withstand a motion to dismiss if it (1) "contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend" and (2) "enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense." United States v. Lazarenko564 F.3d 1026, 1033 (9th Cir. 2009) (quotation marks omitted). An indictment should be read in its entirety,  construed according to common sense, and interpreted to include facts which are necessarily implied. Id. "In cases where the indictment 'tracks the words of the statute charging the offense,' the indictment will be held sufficient 'so long as the words unambiguously set forth all elements necessary to constitute the offense.' " United States v. Davis336 F.3d 920, 922 (9th Cir. 2003).

B. Motion to Dismiss

Defendant moves to dismiss Counts 1-8 of the superseding indictment on the ground that the government has failed to allege essential elements of the charges alleged. Def.'s Mtn. at 3. Defendant's arguments are discussed in turn below.

In its opposition papers, the government represents that it "intends to amend the indictment to omit Count Five, conspiracy to extort under color of official right, for the reasons stated by this Court during the plea colloquy for co-conspirator Christopher Butler. The government will do so after the Court rules on this motion." Pl.'s Opp. at 10.

1. Honest Services Wire Fraud

Counts 1-4 of the superseding indictment charge Defendant with one count of conspiracy to commit honest services wire fraud and three counts of honest services wire fraud in violation of 18 U.S.C. §§ 1359, 1343 and 1346. See Superseding Indictment ¶¶ 7-10. The wire fraud statute provides:

Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined under this title or imprisoned not more than 20 years, or both. . . .
18 U.S.C. § 1343. "To convict a person of wire fraud, the government must prove beyond a reasonable doubt that the accused (1) participated in a scheme to defraud; and (2) used the wires to further the scheme." United States v. Ciccone219 F.3d 1078, 1083 (9th Cir. 2000) (citation omitted).

As explained by the Ninth Circuit, federal prosecutors have used § 1343, as well as the substantially similar mail fraud statute, 18 U.S.C. § 1341, to develop a theory of "honest services fraud," which occurs when an employee deprives his employer of its right to have  its affairs conducted "free from deceit, fraud, dishonesty, conflict of interest, and self-enrichment," and consistent with the employee's fiduciary duties to the employer. United States v. Kincaid-Chauncey556 F.3d 923, 939 (9th Cir. 2009). When a public official is involved, the theory relies on the idea that a public official acts as trustee for the citizens and the State and thus owes the normal fiduciary duties of a trustee, e.g., honesty and loyalty to them. Id.see United States v. Woodard459 F.3d 1078, 1082, 1086 (11th Cir. 2006) (a police officer is a public official that owes a "fiduciary duty to the public to make governmental decisions in the public's best interest"; noting that a police officer's misuse of his office for private gain constitutes fraud).

18 U.S.C. § 1346 provides that the behavior punishable under the wire fraud statute includes a scheme or artifice "to deprive another of the intangible right of honest services." The Supreme Court has recently held that § 1346, which codifies the offense of honest-services fraud, only criminalizes bribe-and-kickback schemes. See United States v. Pelisamen641 F.3d 399, 402, 404-405 (9th Cir. 2011) ("a defendant may not be convicted of honest-services fraud, except in cases involving bribes or kickbacks"; noting that the "Supreme Court has recently held that the offense of honest-services fraud . . . is unconstitutionally vague when applied to conduct other than bribery and kickbacks") (citing Skilling v. United States130 S.Ct. 2896, 2931 (2010)).

In Skilling, the Supreme Court did not define bribery or kickbacks. However, the Supreme Court cited a statutory definition of kickbacks. Skilling130 S. Ct. at 2933-2934 (" 'The term 'kickback' means any money, fee, commission, credit, gift, gratuity, thing of value, or compensation of any kind which is provided, directly or indirectly, to [enumerated persons] for the purpose of improperly obtaining or rewarding favorable treatment in connection with [enumerated circumstances].' ") (quoting 41 U.S.C. 52(2)).

While the term "honest services" is not defined in the statute, "the paradigm case of honest services fraud is the bribery of a public official." See United States v. Langford647 F.3d 1309, 1321 (11th Cir. 2011); see also United States v. Bohonus628 F.2d 1167, 1171 (9th Cir. 1980) (schemes which deprive others of intangible rights most often involve bribery of public officials). In cases involving bribery of public officials, "[t]he requisite 'scheme or artifice to defraud' is found in the deprivation of the public's right to honest and  faithful government. When a public official is bribed, he is paid for making a decision while purporting to be exercising his independent discretion. The fraud element is therefore satisfied." Bohonus628 F.2d at 1171.

In the Ninth Circuit, bribery requires at least an implicit quid pro quo. Kincaid-Chauncey556 F.3d at 941. "Only individuals who can be shown to have had the specific intent to trade official actions for items of value are subject to criminal punishment on this theory of honest services fraud." Id. at 943, n. 15. The quid pro quo necessary for a bribery honest services conviction need not be explicit, and an implicit quid pro quo need not concern a specific official act. Id. at 943 (citing United States v. Kemp500 F.3d 257, 282 (3d Cir. 2007) ("[T]he government need not prove that each gift was provided with the intent to prompt a specific official act.")). A quid pro quo requirement is satisfied if the evidence shows a course of conduct of favors and gifts flowing to a public official in exchange for a pattern of official acts favorable to the donor. Id. at 943.

Relying on Skilling, the Ninth Circuit has recently held that the breach of a fiduciary duty is a required element of honest services fraud. United States v. Milovanovic678 F.3d 713, 721-722, 728-729 (9th Cir. 2012) (noting that in Skilling the Supreme Court stated that "[t]he 'vast majority' of the honest-services cases involved offenders who, in violation of a fiduciary duty, participated in bribery or kickback schemes."). The fiduciary duty required is not limited to the classic definition of the term but also extends to defendants who assume a comparable duty of loyalty, trust, or confidence with the victim. Id. at 723-724. "The existence of a fiduciary duty in a criminal prosecution is a fact-based  determination that must ultimately be determined by a jury properly instructed on this issue." Id. at 723.

In Milovanovic, the Defendant was not charged with honest services wire fraud in violation of § 1343; rather, he was charged with the substantially similar mail fraud statute, § 1341. See Milovanovic678 F.3d at 719, n. 4.

"A fiduciary is generally defined as '[a] person who is required to act for the benefit of another person on all matters within the scope of their relationship; one who owes to another the duties of good faith, trust, confidence, and candor. . . .' " Milovanovic678 F.3d at 722 (quoting Black's Law Dictionary (9th ed.)). And courts have held that "fiduciary" encompasses informal fiduciaries. See id.

A specific intent to defraud is also a required element of honest services fraud. Kincaid-Chauncey556 F.3d at 941. As with mail fraud, "materiality" is also an essential element of the crime of wire fraud. Neder v. United States527 U.S. 1, 20-25 (1999); Milovanovic678 F.3d at 726-727 (adopting the "materiality test" to bring § 1346 in line with the mail, wire, and bank fraud statutes). In the case of mail or wire fraud, the government need not prove a specific false statement was made. See United States v. Woods335 F.3d 993, 999 (9th Cir. 2003) (if a scheme is devised with the intent to defraud, the fact that there is no misrepresentation of a single existing fact is immaterial; it is only necessary to prove that it is a scheme reasonably calculated to deceive); United States v. Omer395 F.3d 1087, 1089 (9th Cir. 2005) (it is the materiality of the scheme or artifice that must be alleged; the materiality of a specific statement need not be pleaded). "[T]he fraudulent nature of the 'scheme or artifice to defraud' is measured by a non-technical standard." Woods, 335 F.3d at 998. "Thus, schemes are condemned which are contrary to public policy or which fail to measure up to the reflection of moral uprightness, of fundamental honesty, fair play and right dealing in the general and business life of members of society." Id.see also Omer395 F.3d at 1089 (noting that "Neder did not undermine this non-technical standard for measuring fraud, which does not require proof of a specific false statement.").

Here, the superseding indictment charges Defendant with a bribery-based scheme to defraud. Defendant contends that dismissal of the honest services fraud counts (i.e., Counts 1-4) is appropriate because "the government has failed to allege any facts pertaining to the breach of a fiduciary duty, the material misrepresentation or material fact concealed by [Defendant], and the quid pro quo agreement by [Defendant] that caused the deprivation o[f] an intangible right of a particular service." Def.'s Mtn. at 4 (italics and alterations added). The Court disagrees. 

The Court finds that the superseding indictment sufficiently alleges these elements of an honest services fraud offense. Reading the superseding indictment in its entirety, construing it according to common sense, and interpreting it to include facts which are necessarily implied, the government has alleged that: (1) Defendant knowingly and intentionally devised and participated in a scheme and artifice to defraud, specifically to deprive the public to whom he owed a fiduciary duty of his honest services as a Deputy Sheriff; (2) the fraudulent scheme involves bribes (i.e., cocaine and a firearm) in exchange for Defendant's services (i.e., making arrests and arranging for another officer to make an arrest); (3) the public was deprived of the intangible benefit of Defendant's honest services through the bribery-based scheme as Defendant misused his position for private gain; and (4) Defendant used the wires (via text messages) to execute the fraudulent scheme.

Defendant argues that Counts 1-4 of the superseding indictment should be dismissed because the superseding indictment does not allege a fiduciary duty or a breach of a fiduciary duty. Def.'s Mtn. at 5. While the superseding indictment does not contain the phrase "fiduciary duty," the superseding indictment fairly read alleges that Defendant, a public official, owed a fiduciary duty to the public to provide honest services, and that he breached his duties of honesty and loyalty to the public through his participation in the bribery-based fraudulent scheme. To the extent Defendant argues that the superseding indictment does not allege a breach of fiduciary duty because Defendant's duties under the law required him to prevent crime and assist in its detection, id., this argument lacks merit. Honest services fraud criminalizes bribery schemes where, as here, a public official receives compensation of any kind in exchange for the performance of official duties favorable to the person providing the compensation. See e.g.Langford647 F.3d at 1321-1322

Defendant does not dispute that he was a public official at the time of the events giving rise to this action. See Woodard459 F.3d at 1096, n. 7 (police officer is a public official that owes the public a fiduciary duty to act in the public's best interest).
--------

Defendant also argues that Counts 1-4 of the superseding indictment should be dismissed because the superseding indictment does not allege a material misrepresentation or the omission of a material fact as required under §§ 1343 and 1346. Def.'s Mtn. at 6. Defendant contends that "[s]ince making an investigatory stop of an intoxicated driver based upon a citizen's tip is not a material misrepresentation, the Court should dismiss the Honest Services counts. . . ." Id. at 6 (alteration added). The Court rejects this argument.

Contrary to Defendant's contention, the government is not required to allege a material misrepresentation or the omission of a material fact to state an actionable charge for honest services wire fraud. See Woods, 335 F.3d at 998-999. The materiality element of a wire fraud offense does not require the government to prove a specific false statement or specific omission. See id. If a scheme is devised with the intent to defraud, . . . the fact that there is no misrepresentation of a single existing fact is immaterial. It is only necessary to prove that it is a scheme reasonably calculated to deceive . . . ." Id. at 998 (emphasis in original). A review of the superseding indictment reveals that the government has sufficiently alleged the materiality element of an honest services wire fraud offense. The superseding indictment fairly read alleges that Defendant participated in a "scheme reasonably calculated to deceive," which deprived the public of its right to Defendant's honest services. Moreover, even assuming for the sake of argument that the government is required to allege a material misrepresentation or the omission of a material fact, the superseding indictment alleges that the Defendant made specific false statements in furtherance of the fraudulent scheme. Specifically, it alleges that Defendant falsely stated in his incident reports for the DUI arrests that he was on "routine patrol." These statements are material misrepresentations because Defendant falsely represented to his employer that he was engaged in official acts on behalf of the public when in fact he was misusing his position for private gain.

Finally, Defendant argues that Counts 1-4 of the superseding indictment should be dismissed because the superseding indictment does not allege an explicit agreement that Defendant received benefits in exchange for a promise of official action. Def.'s Mtn. at 8.  Defendant contends that "[s]ince the superceding [sic] indictment lacks . . . an explicit, certain quid pro quo agreement, the Honest Services Fraud counts are insufficient to state a claim upon which [Defendant] can be charged." Id. at 8 (italics and alterations added). This argument lacks merit. The quid pro quo necessary for a bribery honest services conviction need not be explicit. Kincaid-Chauncey556 F.3d at 943. A quid pro quo requirement is satisfied if the evidence shows a course of conduct of favors and gifts flowing to a public official in exchange for a pattern of official acts favorable to the donor. Id. Here, the allegations in the superseding indictment are sufficient to withstand Defendant's motion to dismiss. The superseding indictment alleges that "[i]n exchange for [Defendant] making DUI arrests and arranging for another officer to make an arrest, C.B. compensated [Defendant] with cocaine and a firearm." Superseding Indictment ¶ 5.

2. Hobbs Act

Counts 5-8 of the superseding indictment charge Defendant with violations of the Hobbs Act. Specifically, the superseding indictment charges Defendant with one count of conspiracy to extort under color of official right in violation of 18 U.S.C. § 1951; one count of extortion under color of official right, aiding and abetting in violation of 18 U.S.C. §§ 1951 and 2; and two counts of extortion under color of official right in violation of 18 U.S.C. § 1951See Superseding Indictment ¶¶ 11-18.

18 U.S.C. § 1951 provides:

Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both.
"The term 'extortion' means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right." 18 U.S.C. § 1951(b)(2).

To convict Defendant of Hobbs Act extortion under a color of official right theory, the government must prove that he: (1) was a government official; (2) who accepted  property to which he was not entitled; (3) knowing that he was not entitled to the property; (4) knowing that the payment was given in return for official acts; and (5) which had at least a de minimis effect on commerce. Kincaid-Chauncey556 F.3d at 936. A conviction for extortion under color of official right requires that the government prove a quid pro quo. Id. at 937. The official and the payor need not state the quid pro quo in express terms, for otherwise the law's effect could be frustrated by knowing winks and nods. Id. (quotation marks omitted). An explicit quid pro quo is not required; an agreement implied from the official's words and actions is sufficient to satisfy this element. Id. (citing Evans v. United States504 U.S. 255, 268 (1992) ("[The] Government need only show that a public official has obtained a payment to which he was not entitled, knowing that the payment was made in return for official acts.")).

Here, Defendant is charged under the "official right" theory of extortion. Defendant contends that dismissal of the Hobbs Act charges is appropriate because "the government failed to allege an obtaining of property of another, the effect [sic] on interstate commerce, or a quid pro quo[,] which are each essential elements of a Hobbs Act violation. Def.'s Mtn. at 8 (italics and alteration added). The Court disagrees.

The Court finds that the superseding indictment sufficiently alleges these elements of a Hobbs Act extortion offense. Reading the superseding indictment in its entirety, construing it according to common sense, and interpreting it to include facts which are necessarily implied, the superseding indictment alleges that Defendant, a Deputy Sheriff, did knowingly and intentionally obstruct, delay, and affect commerce by extortion (or aided and abetted or conspired to do the same) by obtaining property not due to him from C.B. (i.e., cocaine and a firearm), with C.B.'s consent, in exchange for making and arranging traffic stops and arrests for DUI under color of official right.

Defendant argues that Counts 5-8 of the superseding indictment should be dismissed because the allegation that he obtained cocaine and a firearm from C.B. after the DUI arrests, standing alone, cannot establish a Hobbs Act extortion violation. Def.'s Mtn. at 9-10. Defendant, however, did not cite any authority demonstrating that dismissal is  appropriate on this ground. Indeed, with respect to obtaining property, to survive a motion to dismiss the government must allege that Defendant accepted property to which he was not entitled, and that he knew he was not entitled to receive the property. See Kincaid-Chauncey556 F.3d at 936. The superseding indictment fairly read alleges sufficient facts to satisfy this element of a Hobbs Act extortion offense. The superseding indictment alleges that Defendant knowingly and intentionally obtained property not due to him from C.B. (i.e., cocaine and a firearm), with C.B.'s consent, in exchange for making and arranging traffic stops and arrests for DUI under color of official right.

Defendant also argues that Counts 5-8 of the superseding indictment should be dismissed because "[w]hile the government only needs to prove 'a de minimis effect on interstate commerce,' " there are no allegations in the superseding indictment establishing that Defendant obstructed, delayed, or affected interstate commerce. Def.'s Mtn. at 10 (alteration and italics added). Defendant, however, does not point to any controlling authority establishing that the allegations in the superseding indictment are insufficient to survive a motion to dismiss on this ground. Moreover, because the superseding indictment tracks the statutory language by alleging that Defendant's extortion affected interstate commerce, the government has adequately pled this element of a Hobbs Act extortion offense. Davis336 F.3d at 922.

Finally, Defendant argues that Counts 5-8 of the superseding indictment should be dismissed because the government failed to allege an explicit quid pro quo agreement between Defendant and C.B. Def.'s Mtn. at 11. Contrary to Defendant's contention, an explicit quid pro quo is not required; an agreement implied from the official's words and actions is sufficient to satisfy this element. See Kincaid-Chauncey556 F.3d at 937 (citing Evans504 U.S. at 268 ("[The] Government need only show that a public official has obtained a payment to which he was not entitled, knowing that the payment was made in return for official acts.")). Here, the allegations in the superseding indictment fairly read sufficiently allege this element of a Hobbs Act extortion offense. The superseding indictment alleges that Defendant received compensation (i.e., cocaine and a firearm) not  due to him from C.B. in exchange for making DUI arrests and arranging for another officer to make an arrest.

III. CONCLUSION

For the reasons stated above, IT IS HEREBY ORDERED THAT:

1. Defendant's motion to dismiss is DENIED.

2. The motion hearing scheduled for November 20, 2012 is VACATED. The parties shall contact the Duty Magistrate Judge of the Oakland Division of this Court forthwith to schedule the matter for a status conference.

3. This Order terminates Docket 39.

IT IS SO ORDERED.

_____________

SAUNDRA BROWN ARMSTRONG

United States District Judge

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Deadly Liaisons

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Around the time a high speed driver nearly killed us in 2005, weeks my friend Alicia Driscoll murdered?  Read on as this started decades ago. 

Examples of incidents

  • #strackdeaths  Murdered Sept 2014
  • #driscolldeaths Murdered 2004
  • #BremerDeath Died in custody - former roomate
  • 2014 was a bad year
  • #pgeWitness -  Unpaid by PG&E Vendors, I have been beaten, set on fire, run off the road, nearly died of bacteria or poison,

Jan 2015
This Radio Show Host was arrested, jailed, tazered, maimed, harmed,hurt and scarred.
Radio Show Guest - had me on show - she was attacked next day. 
@jennhanin Feb 5th Show
She was targeted by same attorneys another Federal Case known as #cnetscandal .
THIS IS A 30 YEAR NIGHTMARE
1979-Back to Back Murders near house
1979-Adjacent Farm SOLD Farmer Vanished
1982 Black Part Time Emp.  Killed by PPD
1986-Cabinet Customer Diablo View Vet- brutally murdered
1986-Reign of Terror Starts


1988-Pittsburg Cop Murders Safeway Emp.  Forced to close Cabinet Shop over threats losses @2 million
2001-Arsonist Strikes Attorney $100,000 lost
2002-Mechanic Friend Dead In Delta
2002-Former Bank Co-worked killed #deadbankers
2003-US Programmer Suicide at B of A #deadbankers
2004 ABS Failed nearly flipped Explorer
2004-Differential Failure
2004-ABS Fails Explored total loss
2004-1988 F-250 explodes on 680 Nearly Burned Alive No Police Report From San Ramon Valley Fiere
2004-I was beaten by Danville CA inspector He's dead
2004-Targeted by police now in Federal Prison
2004-Met Alicia Driscoll - She's dead in 2005
2004-Gas Line Explosion Five Dead
2005 Gas Line Explosion Witness Dead
2006-Hit and Run
2007-Former BART officer John Kelly Suicide Vasco Road 
2008-Candidate for Office Eric Nunn Perishes with BART Officer
2009-Councilman Shimansky Menigitis
2010-PG&E Engineer Orders Fake Project
2010-PG&E San Bruno Explosion
2010-Transformer Database Conversion RFP - fake company
2011-Person connected to Former Chief Holder sends project loaded with entire NYPD Undercover Database filled Energy Companies like Yankee, FP&C, TVA part of Telco Project - spun in circles.
2011-Hired to work for PG&E via Georgia Company, Bennett has bench warrants, fines, suspended license no car and is homeless
Start Today, Here is the entire SharePoint Server
#pgeDataBreach
PG&E Vendor supplies car, money and access to biggest litigation Case in Country

Bennett arrested car taken to local church over #pgeDatabreach
Jul-2011 Car Totaled $5,000 Loss
PG&E Contract Cancelled PG&E Certified Vendors refuses to Pay
PG&E Attorneys refuse to pay -
Bennett pens

#pgeCherryLetter

Officers in Walnut Creek attempt to kill Bennett
Bennett files papers for City Council
thehomelesscandidate.blogspot.com


2011-Friends of Walnut Creek Police and Bomb Squad drive Bennett from apartment.

2014 Bennett mugged walnut Creek, broken nose, more than 50 blows to head leading to concussions, fractured rib,
2012 Bennett's Truck Towed by www.regionalparking.com - Tow Yard Burns down with Bennett's property and truck - no one has record of tow

Benny Chetcuti Jr.  indicted by US Grand Jury partnered with
www.regionalparking.com

Chris Butler arrested in 2011 is Benny Chetcuti Jr's inlaw.
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KinderCare - Lets take out the son of their attorney?

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