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United States v. Menendez

United States District Court, D. New Jersey

January 24, 2018

UNITED STATES OF AMERICA,
v.
ROBERT MENENDEZ and SALOMON MELGEN, Defendants.

          OPINION

          William H. Walls Senior United States District Court Judge

         Defendants Senator Robert Menendez ("Menendez") and Doctor Salomon Melgen ("Melgen") (together, "Defendants") move under Federal Rule of Criminal Procedure 29 for a judgment of acquittal. Defendants are charged in an eighteen-count superseding indictment with conspiracy to commit bribery and honest services fraud (Count 1), violating the Travel Act (Count 2), bribery (Counts 3-14), and honest services mail and wire fraud (Counts 15-17). Menendez is additionally charged with making false statements to a government agency (Count 18). After a nine-week trial, the jury failed to reach a verdict on all counts. For the following reasons, the Court denies the motion as to Counts 1-8, 15, 16, and 18, and grants the motion as to Counts 9-14 and 17.

         FACTUAL AND PROCEDURAL BACKGROUND

         The Court assumes the parties' familiarity with the facts for the purposes of this motion. As to the procedural history of this case, Defendants were arraigned under a superseding indictment on August 22, 2017. Jury selection began that day, and trial commenced on September 6. On October 11, at the close of the Government's case, Defendants made their first motion for acquittal. Oct. 11, 2017, Tr. at 88; ECF No. 241. Following oral argument and briefing by the parties, the Court denied the motion in part and reserved in part. Oct. 16, 2017, Tr. at 34-57. Defendants renewed their motion on October 30 at the close of all evidence. ECF No. 261. In addition, Menendez moved to dismiss Count 18 on the ground that the Government had not introduced evidence that venue is proper in this District. ECF No. 262. After the jury deadlocked and the Court declared a mistrial, Defendants again renewed their Rule 29 motion on November 30. ECF No. 281.

         LEGAL STANDARD

         Federal Rule of Criminal Procedure 29 requires the Court to enter a judgment of acquittal on "any offense for which the evidence is insufficient to sustain a conviction." Fed. R. Crim. P. 29(a). In ruling on a Rule 29 motion, the Court must determine whether any rational trier of fact could find proof of Defendants' guilt beyond a reasonable doubt based on the evidence presented at trial. United States v. Smith, 294 F.3d 473, 476 (3d Cir. 2002). In making that determination, the Court must view the evidence in its entirety and in the light most favorable to the Government. United States v. Hoffecker, 530 F.3d 137, 146 (3d Cir. 2008). That includes giving "the benefit of inferences that may be drawn from the evidence, " which "may be considered probative even if it is circumstantial." United States v. Pecora, 798 F.2d 614, 618 (3d Cir. 1986). "[A] finding of insufficiency should be confined to cases where the prosecution's failure is clear." Smith, 294 F.3d at 477.

         DISCUSSION

         Defendants advance the following arguments in support of their Rule 29(a) motion, made at the close of the Government's case and renewed at the close of all evidence: (1) that the Government failed to prove a quid pro quo because McDonnell v. United States invalidated the "stream of benefits" theory of bribery, under which the Government brought much of its case; (2) that the Government failed to prove an official act satisfying McDonnell's narrowed definition; (3) that inter-branch lobbying can never qualify as an official act; (4) that the Government failed to prove Menendez took an official action that he would not otherwise take; (5) that the counts alleging Majority PAC contributions as bribes are subject to strict scrutiny under Citizens United and that this prosecution does not satisfy that heightened requirement; (6) that the Government failed to prove an explicit quid pro quo regarding the political contribution counts; (7) that the Travel Act count must fail because the Government failed to prove a subsequent overt act in furtherance of the unlawful activity; and (8) that the false statements count against Menendez must fail because the Government has not proved that his omissions were material and made knowingly or willfully. Following Defendants' presentation of evidence, Menendez made the additional argument that the Government failed to prove by a preponderance of the evidence that venue in this district is proper on the false statements count.

         I. Bribery Counts.

         A public official is guilty of bribery when that person performs or agrees to perform an "official act" in exchange for something of value. 18 U.S.C. § 201(b)(2) (applying to a public official who "directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value... in return for... being influenced in the performance of any official act"); see McDonnell v. United States, 136 S.Ct. 2355 (2016). One who gives or offers a thing of value to a public official is guilty of bribery if he does so "with intent to influence any official act." 18 U.S.C. § 201(b)(1). This requires the Government to prove the existence of a quid pro quo, or "a specific intent to give or receive something of value in exchange for an official act." United States v. Sun-Diamond Growers, 526 U.S. 398, 404-05 (1999) (emphasis in original).

         For a public official to be guilty of bribery, the jury must find that he "agreed to perform an 'official act' at the time of the alleged quidpro quo." McDonnell, 136 S.Ct. at 2371. This agreement "need not be explicit and the public official need not specify the means that he will use to perform his end of the bargain." Id. It is sufficient if the public official "understands that he is expected, as a result of the payment, to exercise particular kinds of influence or to do certain things connected with his office as specific opportunities arise." United States v. Repak, 852 F.3d 230, 251 (3d Cir. 2017) (quoting United States v. Bradley, 173 F.3d 225, 231 (3d Cir.1999)). Consequently, a jury may find a quid pro quo if the Government shows "a course of conduct of favors and gifts flowing to a public official in exchange for a pattern of official actions favorable to the donor." United States v. Kemp, 500 F.3d 257, 282 (3d Cir. 2007) (emphasis in original) (quoting United States v. Jennings, 160 F.3d 1006, 1014 (4th Cir. 1998)).

         First Amendment concerns arise, however, when the alleged thing of value is a political contribution. United States v. Menendez, 132 F.Supp.3d 635, 642 (D.N.J. 2015). To prove that a political contribution was the subject of a bribe, the Government must prove an explicit quid pro quo. See McCormick v. United States, 500 U.S. 257, 273 (1991) ("The receipt of such contributions is also vulnerable under the Act..., but only if the payments are made in return for an explicit promise or undertaking....") United States v. Siegelman, 640 F.3d 1159, 1171 (11th Cir. 2011) (requiring explicit promise of official action when government alleges that campaign contributions are subject of bribery).

         The Supreme Court in McDonnell recently narrowed the definition of "official act, " holding unanimously that:

[A]n official act is a decision or action on a 'question, matter, cause, suit, proceeding or controversy.' The 'question, matter, cause, suit, proceeding or controversy' must involve 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. It must also be something specific and focused that is 'pending' or 'may by law be brought' before a public official. To qualify as an 'official act, ' the public official must make a decision or take an action on that 'question, matter, cause, suit, proceeding or controversy, ' or agree to do so. That 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.

136 S.Ct. at 2371-72.

         a. A Rational Juror Could Conclude that Defendants Entered Into an Agreement to Exchange Things of Value for Specific Official Acts.

         Defendants assert that the "stream of benefits" theory of bribery is no longer viable in light of McDonnell.[1] They argue that after McDonnell, the Government must prove that Defendants entered into an agreement to exchange a thing of value for a specific "official act" which was identified at the time of the agreement. The Court concludes that McDonnell is not antagonistic to the stream of benefits theory. A reading of the Supreme Court decision reveals an absence of definite conflict between the now-limited definition of official acts of a public official, and the stream of benefits theory, a governmental tool long used to prosecute bribery charges against public officials.

         Defendants focus on the Supreme Court's statement in McDonnell that the Government must prove that "the public official agreed to perform an 'official act' at the time of the alleged quid pro quo" McDonnell, 136 S.Ct. at 2371 (emphasis added). Defendants argue that this language, in light of McDonnell's narrowing of the term "official act, " requires the Government to prove beyond a reasonable doubt that Defendants had an agreement to exchange a specific quid for a specific, identified quo. The Court is constrained to disagree.

         It is established Third Circuit law that:

The key to whether a gift constitutes a bribe is whether the parties intended for the benefit to be made in exchange for some official action; the government need not prove that each gift was provided with the intent to prompt a specific official act. Rather, "the quid pro quo requirement is satisfied so long as the evidence shows a course of conduct of favors and gifts flowing to a public official in exchange for a pattern of official actions favorable to the donor."

Kemp, 500 F.3d at 282 (emphasis in original) (quoting Jennings, 160 F.3d at 1014); see also United States v. Bryant, 655 F.3d 232, 241 (3d Cir. 2011) ("[P]ayments may be made with the intent to retain the official's services on an 'as needed' basis, so that whenever the opportunity presents itself the official will take specific action on the payor's behalf.").

         As long as that action is an "official act" under McDonnell, it is a crime. Other Circuits agree. See, e.g., United States v. Ganim, 510 F.3d 134 (2d Cir. 2007) (Sotomayor, J.); Jennings, 160 F.3d at 1014; United States v. Whitfield, 590 F.3d 325, 337-54 (5th Cir. 2009). The Second Circuit in Ganim endorsed the stream of benefits theory while rejecting the precise argument advanced by Defendants here-"that a specific act [must] be identified and directly linked to a benefit at the time the benefit is received." Id. at 145. Reaffirming that "it is sufficient if the public official understands that he or she is expected as a result of the payment to exercise particular kinds of influence-i.e., on behalf of the payor-as specific opportunities arise, " the court in Ganim identified the stream of benefits theory as "a natural corollary of [United States v.] Evans' pronouncement that the government need not prove the existence of an explicit agreement at the time a payment is received." Id. (quoting United States v. Coyne, 4 F.3d 100, 144 (2d Cir. 1993)); see also McDonnell, 136 S.Ct. at 2371 ("[t]he agreement need not be explicit").

         Defendants' attempt to read inconsistencies between McDonnell and the well-established stream of benefits theory is unpersuasive. Defendants point to two statements from McDonnell and argue that, taken together, they impose a strict nexus requirement between quid and quo. First, they identify the statement that the factfinder must "determine whether the public official agreed to perform an 'official act' at the time of the alleged quid pro quo." McDonnell, 136 S.Ct. at 2371. They then point to McDonnell's holding that an official act "must also be something specific and focused that is 'pending' or 'may by law be brought' before a public official." Id. at 2372.

         From these statements, Defendants manufacture a temporal requirement at odds with the stream of benefits theory: that the official act that is the object of a quid pro quo must be "specific and focused" and identified at the time the agreement is made. But the two passages Defendants quote from McDonnell are distinct. The Government has always been required to prove that a public official "agreed to perform an 'official act' at the time of the alleged quid pro quo." As the Third Circuit said in Kemp, "[t]he key to whether a gift constitutes a bribe is whether the parties intended for the benefit to be made in exchange for some official action ...." 500 F.3d at 282. That the official acts ultimately taken by the public official must be "specific and focused" under McDonnell in no way imposes a requirement that they be precisely identified at the time the agreement is made. See Ganim, 510 F.3d at 149 (approving jury instruction that "a bribe requires some specific quid pro quo ... that is, a specific official action in return for the payment or benefit").

         Defendants also argue that McDonnell forecloses the stream of benefits theory because it clarifies a misreading of United States v. Sun-Diamond Growers of California, 526 U.S. 398 (1999), that has been adopted by several circuits. In Sun-Diamond, the Court held that a gratuity conviction under 18 U.S.C. § 201(c)(1) requires the Government to show "a link between a thing of value conferred upon a public official and a specific 'official act' for or because of which it was given." Id. at 414. This nexus was required because the gratuities statute prohibits "only gratuities given or received 'for or because of any official act performed or to be performed, ' and then" proceeds to define "official act." Id. at 406 (emphasis in original).

         The Ganim court rejected Defendants' contention that this nexus requirement applied to bribery cases as well as gratuities. The court observed, "it was the very text of the illegal gratuity statute-'for or because of any official act'-that led the [Sun-Diamond] Court to its conclusion that a direct nexus was required to sustain a conviction under § 201(c)(1)(A)." Ganim, 410 F.3d at 146. Moreover, the court reasoned that while that nexus is necessary "to distinguish legal gratuities (given to curry favor because of an official's position) from illegal gratuities (given because of a specific act), " it "is not needed in the extortion or bribery contexts ... because it is the requirement of an intent to perform an act in exchange for a benefit-i.e., the quid pro quo agreement-that distinguishes those crimes from both legal and illegal gratuities." Id. at 146-47.

         Defendants contend that Ganim's reliance on the distinction between gratuities and bribery cases is a misreading of Sun-Diamond. They argue that McDonnell clarified this misreading by adopting Sun-Diamond's interpretation of "official act, " thereby incorporating its requirements wholesale in all cases brought under section 201. ECF NO. 177-1, at 5; see McDonnell, 136 S.Ct. at 2370 ("It is apparent from Sun-Diamond that hosting an event, meeting with other officials, or speaking with interested parties is not, standing alone, a 'decision or action' within the meaning of § 201(a)(3)").

         But McDonnell's adoption of Sun-Diamond's "official act" interpretation-contained in section 201(a)(3) and applicable to both the bribery and gratuities provisions-does not also incorporate its interpretation of section 201(c)(1)(A), which is part of the distinct gratuities provision. As Ganim observed, the nexus requirement in Sun-Diamond was a construction of the causal nature of "for or because of any official act, " which does not appear in the bribery provision, section 201(b)(2). Because both crimes require a definition of "official acts, " there is no reason to think that the interpretation of section 201(a)(3) in Sun-Diamond would not apply in the bribery context as well.

         McDonnell neither abolished the stream of benefits theory nor held that an official act that is the object of an illegal quid pro quo agreement must be identified at the time the agreement is made. It merely narrowed the definition of "official act"; the opinion says nothing new about what nexus must be shown between a thing of value and an official act. In other words, McDonnell is about the quo, not Hie pro.

         Against the backdrop of established Third Circuit authority approving the stream of benefits theory, McDonnell's silence regarding that theory cannot be its death knell. The Court is bound to follow controlling Third Circuit authority, and it does here. See United States v. Mitlo, 714 F.2d 294, 298 (3d Cir. 1983) (quotations omitted) ("[A] decision by this court, not overruled by the Supreme Court[, ] is a decision of the court of last resort of this federal judicial circuit and is therefore binding on all inferior courts and litigants in the Third Judicial Circuit"). This is particularly so given the widespread acceptance of the stream of benefits theory pre-McDonnell, and the fact that the Supreme Court "does not normally overturn, or so dramatically limit, earlier authority sub silentio" Shalala v. Illinois Council on Long Term Care, Inc., 529 U.S. 1, 18 (2000). That Justice Sotomayor, who authored the lodestar stream of benefits opinion as a judge on the Second Circuit, joined the Court in McDonnell further weakens Defendants' argument that McDonnell silently overruled the stream of benefits theory of bribery.[2]

         Indeed, post-McDonnell, the Third Circuit and other Circuit courts have continued to cite favorably to their own stream of benefits precedents, indicating their view that the Supreme Court left the theory intact. See United States v. Skelos, Nos. 16-1618, 16-1697, 2017 WL 4250021 at *3 (2d Cir. Sept. 26, 2017) (quoting United States v. Bruno, 661 F.3d 733, 744 (2d Cir. 2011)) ("Acts constituting the agreement need not be agreed to in advance. A promise to perform such acts as the opportunities arise is sufficient."); Repak, 852 F.3d at 251 (quoting Bradley, 173 F.3d at 231) (for Hobbs Act violation "it is sufficient if the public official understands that he is expected, as a result of the payment, to exercise particular kinds of influence or to do certain things connected with his office as specific opportunities arise"); see also United States v. Malkus, No. 12-56499, 2017 WL 3531422 at *1 (9th Cir. Aug. 17, 2017) ("McDonnell did not change the 'linkage' requirement of federal bribery statutes").

         In light of the stream of benefits theory's continued vitality, the Court also concludes that a rational juror could find that Defendants entered into a quid pro quo agreement. All of Menendez's alleged official acts occurred during the relatively short period of January 2006 through January 2013, and during the same period Melgen gave Menendez a stay in an upscale Parisian hotel, various flights without cost, and stays at Melgen's villa in the Dominican Republic. During this same period of time, there is evidence that Menendez reached his highest public office, that of the United States Senate, and became a member of the Finance and Foreign Relations Committees. A rational juror could conclude from the activities of these defendants that there was an implicit agreement to exchange things of value for official acts. See McDonnell, 136 S.Ct. at 2371 ("The agreement need not be explicit, and the public official need not specify the means that he will use to perform his end of the bargain.").

         Defendants' motion for acquittal on this basis is denied. Regarding Defendants' renewed Rule 29 motion, none of the evidence presented by Defendants requires a different conclusion.

         b. A Rational Juror Could Find That Senator Menendez Performed Official Acts Satisfying the McDonnell Standard.

         In this case, there are four incidents from which a rational juror could conclude official acts arise: Menendez's visa-related advocacy, his advocacy relating to Melgen's Medicare billing dispute, his advocacy concerning Melgen's contract to provide security services to Dominican Republic ports (the "ICSSI contract"), and his opposition to the United States government's potential gift of security screening technology to the Dominican Republic government.

         Viewing the evidence, as the Court must, in the light most favorable to the Government, each of these incidents has a common thread. That is, during the period of January 2006 through January 2013, there is evidence to sustain the determination that Menendez sought to "exert pressure on" or "advise" other government officials to take official actions for Melgen's benefit. McDonnell, 136 S.Ct. at 2372.

         There is available evidence that, with regard to the visas, Menendez by phone call or by correspondence interceded with appropriate State Department officials to obtain favorable consideration of visa applications made by Melgen's friends. See, e.g., GX 20; GX 25; GX 30.

         As to the Medicare billing dispute, there is evidence to indicate a controversy as to billing practices between Melgen and Medicare, which amounted to $8.9 million. Sept. 26, 2017, Tr. at 191. There is evidence to support the conclusion that from 2009 to August 2012, at various times and with various representatives of Medicare and with cabinet officials, Menendez sought to pressure or advise such officials to look at the controversy favorably to Melgen by making personal phone calls to officials in the Department of Health and Human Services, which has overall direction of Medicare policy, and meeting with the then-secretary of that agency in August 2012. See, e.g., Oct. 2, 2017, Tr. at 82 (2009 phone call with Jonathan Blum); Oct. 3, 2017, Tr. at 179, 187 (August 2012 meeting with Kathleen Sebelius and others). There is evidence from which a rational juror could conclude that the meeting was not regarding general policy matters, but was in reality about securing a favorable ruling or decision for Melgen, who was the only doctor seeking to change that particular policy, and who had $8.9 million at stake. See Oct. 2, 2017, Tr. at 101.

         With regard to the port security contract, during the period from January 2006 through January 2013, Melgen was the owner of a company which held a contract to provide security services in the harbor of a port in the Dominican Republic. Sept. 25, 2017, Tr. at 134-40. There was a dispute between his company and the Dominican Republic over the enforceability of that contract. Id. From the evidence at trial, a rational juror could conclude that Menendez sought through meetings with various State Department officials, including those of ambassadorial rank, to pressure or advise them to take official action which would be beneficial to his friend's contract. Id.;GX 138.

         Finally, to further aid his friend and his contract, there is evidence available from which a rational juror could conclude that Menendez sought to pressure or advise another government agency to desist in giving a gift of security scanning equipment until Menendez could discuss the issue with them. Sept. 25, 2017, Tr. at 134-37.

         Defendants' motion for acquittal on this basis is denied. Regarding Defendants' renewed Rule 29 motion, none of the evidence presented by Defendants requires a different conclusion.

         c. Inter-Branch Lobbying Can Qualify as an Official Act Under McDonnell.

         Defendants next argue that acquittal on Counts 1-17 is required because inter-branch lobbying can never be an "official act." ECF No. 241-1, at 49. They contend that because the official acts alleged in this case involve decisions by the executive branch, Menendez, a legislative branch official, cannot have accepted a gift in return for "being influenced in the performance of any official act" Id. (quoting 18 U.S.C. § 201(b)(2)(A)).

         The McDonnell framework for identifying an official act first requires that there be a "question, matter, cause, suit, proceeding or controversy, " and second requires that the public official "make a decision or take an action on that 'question, matter, cause, suit, proceeding or controversy. '"Id.; see United States v. Boyland, 862 F.3d 279, 289 (2d Cir. 2017) (articulating McDonnell's two-part framework). Even if the public official does not himself make a decision or take an action, the second requirement may be satisfied when the official (1) exerts pressure on another public official to perform an official act, or (2) provides advice, knowing or intending that such advice will form the basis for an official act. McDonnell, 136 S.Ct. at 2372.

         Defendants argue that inter-branch lobbying cannot constitute an "official act" because such lobbying can never "form the basis" for an official act. Because McDonnell did not limit the scope of "official act" in this way, this argument fails. First, the language of McDonnell requires that a public official who advises another official know or intend that his advice will "form the basis" for an official act, but does not impose such a limitation when the public official engages in an official act by "exert[ing] pressure." The two alternatives are set out in separate sentences, and the "exert[ing] pressure" sentence does not require that the public official know or intend that the pressure "form the basis" of the ultimate official act. Id. at 2370. Consequently, the Government is not required to prove that a public official knew or intended that inter-branch advocacy would "form the basis" for any official act if such advocacy comes in the form of "exert[ing] pressure." Id.

         Second, it is certainly possible for inter-branch advocacy to "form the basis" for an official act. Defendants essentially acknowledge this when they posit a hypothetical in which a senator persuades the President to veto a bill, and argue that it would not constitute an official act. ECF No. 241-1, at 52. If, as they suggest, a senator in fact convinced the President to veto a bill he otherwise would have signed, then the pressure would have "formed the basis" for the official act under any reasonable understanding of that phrase. Defendants further argue that limiting McDonnell's "exert[] pressure" and "advise" language to intra-branch advocacy is necessary to prevent its application from being overbroad. ECF No. 241-1, at 52. The Court disagrees. McDonnell carefully drew the line between advocacy that could serve as an "official act" and advocacy that could not. The Chief Justice laid out multiple limitations on this type of official action.

         An official does not take an "official act" by "[s]imply expressing support [for an official act]... as long as the public official does not intend to exert pressure on another official" McDonnell, 136 S.Ct. at 2371. While "exert[ing] pressure" may constitute an official act, "expressing support" cannot. Id. Further, exerting pressure is an official act only when the official uses his "official position." Id. Similarly, providing advice can be an official act only when the official "know[s] or intend[s] such advice [will] form the basis for an 'official act.'" Id. Finally, both alternatives are cabined by the Court's limitation that an official act involve a "formal exercise of governmental power that is similar in nature to a lawsuit, " that it be "specific and focused, " and that it be "'pending' or 'may by law be brought' before another public official." Id. at 2372.

         Under Defendants' reading, it would be per se legal to give the President a thing of value to influence him to pressure the Senate Majority Leader to vote or not vote for a particular bill. This cramped reading of McDonnell is contrary to the purpose of section 201 and the language of the McDonnell Court. Given the clear limitations in the McDonnell opinion, Defendants' reading is not necessary to save its application from overbreadth.

         Defendants' motion for acquittal on this basis is denied. Regarding Defendants' renewed Rule 29 motion, none of the evidence presented by Defendants requires a different conclusion.

         d. A Rational Juror Could Find that Melgen Gave Menendez Gifts Intending that Menendez Take Official Actions He "Would Not Otherwise Take."

         Defendants next argue that acquittal is required on Counts 2-17 because the Government failed to prove that that either defendant had the specific intent to commit bribery. ECF No. 241-1, at 43. Specifically, they argue that the Government failed to introduce evidence that Menendez took official action that he would not otherwise take.

         In explaining the requisite intent to commit bribery, the Third Circuit has stated that the Government must prove that "the payor provided a benefit to a public official intending that he will thereby take favorable official acts that he would not otherwise take." United States v. Wright, 665 F.3d 560, 568 (3d Cir. 2012).[3]

         Defendants rely on this language to argue that the Government must show that Menendez "accepted a bribe with the intent to take favorable official acts that he would not otherwise take." Oct. 11, 2017, Tr., at 208. As the Court has stated, that language describes the requisite intent of the payor, not the public official. Nov. 11, 2017 Tr. at 57. The Third Circuit stated that "[the factfinder] must conclude that the payor provided a benefit to a public official intending that he will thereby take favorable official acts that he would not otherwise take." Wright, 664 F.3d at 568 (emphasis added). In contrast, the court went on to say that the factfinder "must conclude that the official accepted those benefits intending, in exchange for the benefits, to take official acts to benefit the payor." Id. (emphasis added).

         Consequently, the "would not otherwise take" standard applies only to Melgen. As to him, Defendants argue that a jury could find only that Melgen provided the things of value as a reward, but not as an attempt to influence. They therefore argue that this would constitute only a gratuity, and not a bribe. ECF No. 241-1, at 44.

         From the evidence introduced at trial, viewed in the light most favorable to the Government, a rational juror could find that Melgen had the intent to influence Menendez in the performance of official acts, regardless of Menendez's earlier advocacy. With regard to the Medicare billing dispute, it is true that Menendez had taken steps to help Melgen before the alleged bribe. That does not mean, however, that Menendez remained willing to intercede again on Melgen's behalf. A rational juror could infer that Melgen provided things of value with the intent to influence Menendez to take up the issue again, believing that he otherwise would not have done so. Further, Menendez's 2009 advocacy is itself charged as an official act in a bribery scheme, ...


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