Doc 970_Farrington Motion for Acquittal

8/14/2019 Doc 970_Farrington Motion for Acquittal

1/25

DEFENDANT SHEILA HILLS MOTION FOR JUDGMENT 1OF ACQUITTAL ON COUNT 18, WITH SUPPORTING BRIEF

DAL01:1095804.1

IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

UNITED STATES OF AMERICA

Plaintiff,

v.

SHEILA D. FARRINGTON (03)a/k/a Sheila Hill, et al.

Defendant.

CRIMINAL ACTION NO.

3:07-CR-289-M

DEFENDANT SHEILA HILLS MOTION FOR JUDGMENT OF ACQUITTAL ON

COUNT 18 AND BRIEF IN SUPPORT

Pursuant to Federal Rule of Criminal Procedure 29, Defendant Sheila Hill files this

motion for judgment of acquittal as to the charges against her in Count 18, and in support, states

as follows:

INTRODUCTION

The deprivation of honest services wire fraud statute is not a mechanism for policing

state and local ethics rules. It does not criminalize the receipt of illegal gratuities, nor does it

criminalize a public officials mere failure to disclose a conflict of interest. Illegal gratuities and

ethical violations are well addressed elsewhere in local, state and other federal laws. Deprivation

of honest services, on the other hand, refers to a narrow range of conduct that is akin to bribery.

It occurs only when (1) the official is motivated by personal financial benefit in the exercise of

an official action, and (2) he violates a provision of state criminal law. In short, the defendant

must be using his official position to enrich himself.

The Government alleges a conspiracy involving Don Hill and his support for the LKC.

There is no evidence of a violation of state law, however, and there is no evidence that Hill took

any official action in favor of the LKC for personal gain. At most, the Government offered

Case 3:07-cr-00289-M Document 970 Filed 09/02/2009 Page 1 of 25


2/25


DAL01:1095804.1

evidence that, after Hill had already been supporting them, the LKC intended to give him a

$10,000 gratuity that he did not expect. That evidence is not at all akin to bribery, nor does it

demonstrate that Hill performed any official action for the purpose of receiving remuneration.

And as to DAngelo Lee, there is no evidence that he did anything within the scope of his official

duties as a City Plan Commissioner.

BACKGROUND

In Count 18, the Government alleges that Sheila Hill conspired with Don Hill, among

others, to hide Mr. Hills personal interest in a real estate group and development project called

the LKC. During its case-in-chief, the Government offered proof that DAngelo Lee partnered

with Andrea Spencer and Ron Slovacek to form the LKC, with a view towards developing a

mixed-use, transit-oriented project in the Lancaster-Kiest Corridor. The project was to address a

perceived need in the Southern Sector of Dallas for quality retail, and would attempt to replicate

the success of transit-oriented developments in North Dallas like Mockingbird Station.

The Government adduced evidence that Don Hill supported the LKCs efforts by (1)

arranging meetings between the LKC and other community members who might assist the

project, (2) promoting the project to Congresswoman Eddie Bernice Johnson, (3) proposing the

use of Dallas public funds to develop infrastructure for the project, and (4) encouraging the

Dallas Police and Fire Pension fund to invest in the project. There also is evidence that

DAngelo Lee promoted the project, and considered asking the City to enforce code issues with

respect to a shopping center that was located on the development site, but there is no evidence

that he actually took official action within the scope of his duties to promote the project.

To demonstrate that Don Hill received a financial benefit for his support, the

Government has offered evidence that Spencer and Slovacek, at the behest of Lee, wrote checks



3/25


DAL01:1095804.1

totaling $15,000 to the Farrington & Associates bank account (of which Sheila Farrington Hill

was a signor). Mrs. Hill was directed to pick up the checks and deposit them, and on

May 26, 2005 Lee is heard telling Mr. Hill and others that $10,000 was for Mr. Hill to

demonstrate that they appreciate him. The evidence that Mr. Hill was expecting the money

before May 26 is deficient,1 and in fact there is evidence to the contrarythat Mr. and Mrs. Hill

were notexpecting the money and did notknow what it was for. See Gov. Ex. 5814 at page 2

(Mr. and Mrs. Hill telling each other that they didnt know anything about the money). The

Government has offered no tracing or other evidence to show that Don Hill personally received

the money after it was deposited into the Farrington & Associates account, or thatif the money

had been deliveredit would have been anything other than a campaign or office-holder

donation or, at worst, an illegal gratuity.2

STANDARD OF REVIEW

A motion for judgment of acquittal should be granted if the court determines that a

rational trier of fact could not find the essential elements of the offense to be satisfied beyond a

reasonable doubt based on the evidence presented in the Governments case in chief. United

States v. Armstrong, 550 F.3d 382, 388 (5th Cir. 2008); seealso Fed. R. Crim. P. 29(a) (After

the government closes its evidence or after the close of all the evidence, the court on the

defendants motion must enter a judgment of acquittal of any offense for which the evidence is

insufficient to sustain a conviction.). In conducting this analysis, the court must consider the

1 The Government relies solely on a vague statement byDAngelo Lee to Ron Slovacek about Sheilas not beingfull. See Gov. Ex. 5814 at page 2. This enigmatic hearsay declarationwhich the Hills will not be able to cross-examine unless Mr. Lee testifiesis plainly insufficient to carry the Governments burden of production.2 The Government will likely contend that the gift was too large to be a campaign donation, but to rely merely onthis alone is plainly insufficient to meet the beyond reasonable doubt standard. Evidence has shown that it is notuncommon to give similar amounts of money in campaign donations (even in cash) to public officials. Politicianssimply attribute each $1,000 to a different person for purposes of reporting. For example, Mr. Hill is heard advisingthe LKC to give $5,000 - $10,000 in cash to Councilman Leo Chaney to demonstrate their support for him. SeeGov. Ex. 5624 at 9-10.



4/25


DAL01:1095804.1

evidence in the light most favorable to the prosecution. Armstrong, 550 F.3d at 388. The

court, however, is not to review the weight of the evidence or judge the credibility of the

witnesses. United States v. Ragsdale, 426 F.3d 765, 770-71 (5th Cir. 2005).

A motion for judgment of acquittal tests the sufficiency of the evidence against [the

defendant], and avoids the risk that a jury may capriciously find him guilty though there is no

legally sufficient evidence of his guilt. 2 Charles Alan Wright, Federal Practice and

Procedure, Criminal 2d 461, pp. 637-38 (West 1982). The role of the court in a Rule 29

motion is to provide a vital check against jury irrationality and safeguard the defendants rights.

Id.

ARGUMENT AND AUTHORITIES

Sheila Hill is charged with Conspiracy to Commit Deprivation of Honest Services Wire

Fraud. To prove that she committed this crime, the government must establish beyond

reasonable doubt that she conspired with at least one other person to accomplish all elements of

the substantive offense.3 The Governments case did not come close to doing this. The evidence

does not support a finding that any conspiracy to commit deprivation of honest services existed,

and it does not support a finding that Sheila Hilljoined any such conspiracy.

A. The Government has failed to meet its burden of proving a conspiracy to commithonest services fraud by Don Hill and DAngelo Lee

In order to prove a conspiracy to commit deprivation of honest services, the Government

must show that the public official violated state criminal law while taking some official action

for personal gain. As explained below, the honest services statute does not criminalize conduct

outside the scope of the officials core responsibilities, and it never criminalizes the receipt of

3 See, e.g., United States v. Ricardo,472 F.3d 277, 282 -283 (5th Cir. 2006) (In order to prove a conspiracy, thegovernment must show beyond a reasonable doubt an agreement between two or more people[.]); Salinas v. UnitedStates, 522 U.S. 52, 64 (1997) (A conspirator must intend to further an endeavor which, if completed, would satisfyall of the elements of a substantive criminal offense[.]).



5/25


DAL01:1095804.1

gifts that do not actually influence the official action (i.e., a gratuity). The evidence is

insufficient to show that the charged public officials conspired to commit this crime. And

because a conspiracy to commit deprivation of honest services as charged in the indictment

requires the involvement of a public official capable of committing the crime, the charge against

Sheila Hill must be dismissed.

1. TheBrumley two-step analysisDeprivation of honest services, a form of wire fraud, is governed first by 18 U.S.C.

1343:

[w]hoever, having devised or intending to devise any scheme or artifice todefraud. . . transmits or causes to be transmitted by means of [interstate wires] forthe purpose of executing such scheme or artifice, shall be fined under this title orimprisoned not more than 20 years, or both.

Id. (emphasis added). Before 1987, this statute was interpreted by lower courts to allow, inter

alia, prosecution of public officials who defrauded citizens of their intangible rights to honest

and impartial government. See, e.g., United States v. McNally, 483 U.S. 350, 355 (1987); United

States v. Brumley, 116 F.3d 728, 733 (5th Cir. 1997). The case law on this matter was uneven,

however. Brumley, 116 F.3d at 733. And observing that 1343 nowhere mentions such an

intangible right, the Supreme Court overruled these cases and declared that Congress would have

to speak more clearly if it wished to criminalize honest services fraud. McNally, 483 U.S. at

356, 360 (The mail fraud statute clearly protects property rights, but does not refer to the

intangible right of the citizenry to good government.).

Congress responded by enacting 1346, which re-instated the honest services doctrine

and provided that a scheme or artifice to defraud would by definition include a scheme or

artifice to deprive another of the intangible right of honest services. 18 U.S.C. 1346. The

statute did not clarify the meaning of honest services, however, and courts were once again



6/25


DAL01:1095804.1

tasked with the responsibility of defining the offense. See, e.g., Brumley, 116 F.3d at 733

(Congress, then, has set us back on a course of defining honest services, and we turn to that

task.). In doing so, courts have drawn from both pre- and post-McNally case law. See id.

Because the doctrine of honest services is not a unified set of rules and the statue

provides no additional guidance, the courts task is not easy. See id; United States v. Brown, 459

F.3d 509, 523 (5th Cir. 2006) (describing the honest services doctrine as consisting of a jumble

of disparate cases and applying the rule lenity to avoid its expansion). And it also raises the

concern that citizens will not be given fair notice that their conduct is criminal. See Brumley,

116 F.3d at 732-33. The en banc Fifth Circuit sought to address these challenges inBrumley.

Brumley involved an official with the Texas Workers Compensation Commission and

Industrial Accident Board (TWCC/IAB) who was charged with receiving several thousand

dollars in payments from a lawyer who had business before the Commission. See id. at 731.

The district court in a bench trial found that, in return for the money, the defendant had used his

official position with the TWCC/IAB to effectively block an investigation into the lawyers

conduct. See id. at 725-36. It rendered a conviction for honest services fraud, and the en banc

Fifth Circuit affirmed.

In doing so, the court established a two-step analysis. It held, initially, that before a

public official can commit honest services fraud, there must first be a breach of a state-owed

duty. Brumley, 116 F.3d at 734. [A] federal prosecutor must prove that conduct of a state

official breached a duty respecting the provision of services owed to the official's employer

under state law. Id. Next, it held that the Government must prove that the public official acted

with an actual scheme or artifice to defraud. Brumley, 116 F.3d at 734. This is an independent

requirement that derives its substance from federal, not state law. Id. It requires a showing that



7/25


DAL01:1095804.1

the public official took action within the scope of his official responsibilities for the sake of

personal gain, as explained more fully below

We address these elements in reverse.

2. Intent to defraud requires proof that a defendant took official action forpersonal gain; it does not criminalize gratuities or public disclosure

violations, and it does not reach conduct outside the scope of an officials core

duties.

The scope of the mail fraud statute does not encompass every instance of official

misconduct that results in personal gain. United States v. Sawyer, 85 F.3d 713, 725 (1st Cir.

1996)). Rather, to commit honest services fraud, the defendant must know that his services to

the public are not in the publics best interestsi.e., there must be something close to

bribery. Brumley, 116 F.3d at734 (citing, among others, Sawyer, 85 F.3d at 728-29). [A]

violation of state law that prohibits only appearances of corruption will not alone support a

violation of 1343 and 1346. Id. This means, for example, the mere receipt of an illegal

gratuity a reward for some future act that the public official will take (and may already have

determined to take), or for a past act that he has already taken, but not actually influencing the

official in his public decision-makingis not honest services fraud. United States v. Kemp, 500

F.3d 257, 281-82 (3rd Cir. 2007) (internal quotation marks omitted); Sawyer, 85 F.3d at 725-27.

The First Circuits decision in Sawyerthe case on whichBrumley reliesis illustrative.

There, the jury convicted a lobbyist of honest services fraud because he gave large gifts to a

public official in violation of the Massachusetts gratuity statute. Sawyer, 85 F.3d at 725-27. The

gratuity statute had criminalized giving, offering, or promising anything of substantial value to a

state employee for or because of any official actperformed or to be performed by such an

employee. Id. at 729 (quoting Mass. Gen. L. ch. 268A, 3) (emphasis added; internal



8/25


DAL01:1095804.1

quotation marks omitted). The trial judge had instructed the jury that a violation of this statute

would itself be sufficient to support a conviction for honest services fraud. Id. at 728.

The First Circuit reversed. [A]lthough a public official might engage in reprehensible

misconduct related to an official position, the conviction of that official for honest-services fraud

cannot stand where the conduct does not actually deprive the public of its right to her honest

services[.] Id. at 725 (emphasis added). The court observed that it is possible for a legislator

to accept [an illegal gratuity] without an accompanying intent . . . to deviate from the honest

performance of official duties. Id. at 728. In other words, he could receive the gift without

having it affect his public decision-making. See id. And although such a gift certainly would

create an appearance of improper influence, it does not alone entail any improper motive to

influence, or otherwise affect, the official duties of the recipient. Id. at 728. Thus there can be

no honest services fraud unless the gift actually influences official action (or was received with

an intent to be influenced). See id. at 729-30. A public official must act forpersonal gain at the

time he takes official action in order for honest services fraud to occur. See id.;Brumley, 116

F.3d at 734 (citing Sawyerfor proposition that a violation of law that prohibits only appearances

of corruption will not alone support honest services charge, and holding that the defendant must

be conscious of the fact that he is acting against the publics best interests while providing the

particular service in question).

A second limitation on the honest services fraud statute is that it does not reach conduct

outside the scope of an officials core duties, even if the official tries to profit from the prestige

of his political office. Deprivation of honest services only occurs when the desire for personal

gain motivates the use of some official power or action within the defendants core public duties.

See United States v. Urciuoli, 513 F.3d 290, 296 (1st Cir. 2008) (reversing honest services



9/25


10/25


DAL01:1095804.1

could not stand for two independent reasons. First, there was no evidence that Rabbitts use of

his friendship, position, and influence to aid [the architecture firm] in obtaining contracts

resulted in inferior work, greater expense, or any other tangible loss to the state. Id. at 1026.

And second, Rabbitt did not, in his official capacity, control the award of state contracts to

architects. There was no evidence that he failed to carry out his official responsibilities

namely, the duties of his legislative office and leadership positionsfor the sake of the

architecture firm. Id. Although the defendant had clearly used his official influence to benefit

himself financially, and had breached his duty to disclose his financial interest in the referral, the

making of such referrals was not within the scope of his official duties. See id; see also

Czubinski, 106 F.3d at 1071, 1077 (reversing conviction of IRS employee who clearly

committed wrongdoing in using the IRS database to search confidential information, in part

because his conduct was outside the scope of his official duty of responding to taxpayer

information requests).

Another case illustrating this principle is the First Circuits recent decision in Urciuoli,

which involved a hospital executive who had offered Rhode Island State Senator John Celona a

disguised bribe in the form of a sham or largely sham job at one of the hospitals subsidiaries.

Urciuoli, 513 F. 3d at 292. In exchange, Celona agreed to help advance the hospitals financial

interests. Id. After charges were brought, Celona pled guilty to mail fraud, but the hospital

executive went to trial on the charge that he conspired to defraud citizens of Celonas honest

services. Id. at 295.

The trial court instructed the jury that honest services included any action that Celona

took under the cloak of office. Id. at 295. And evidence was presented at trial that Celona

would use his title and official letterhead to encourage city mayors and other officials to increase



11/25


DAL01:1095804.1

the number of patients who were brought to that hospital by ambulance. Id. at 292, 296. The

jury convicted, and the Court of Appeals reversed.

On appeal, the First Circuit explained that Celona could not have committed honest

services fraud by lobbying city officials because he was not exercising any official oversight or

authority. See id. at 295-96. The mere fact that he traded on the reputation, network, and

influence that comes with political office was not enough to constitute honest services fraud.

Id. at 296. Celona was a part-time legislator and was allowed to obtain outside employment as a

paid consultant (like public officials in Dallas), so it was unavoidable that he would be able to

trade on the prestige of his political office in carrying out this employment. Id.

Thus, unlike many canons of ethics, the honest services statute is not concerned with

someones abusing the prestige of his or her office for personal gain. It is only implicated when

someone performs his official actions for the sake of personal gain. There are ample other laws

(not imposing a maximum term of 20 years imprisonment) to address conduct outside these

parameters.

3. There can be no deprivation of honest services by a public official without aviolation of state criminallaw as well.

In addition to proving an intent to defraud under federal law, the Government must

establish that there was a violation of state law. Brumley, 116 F.3d at 734. This requirement is

based on the concern that the federal government should not criminally prosecute state officials

for conduct that the state itself has not proscribed. See id. (We find nothing to suggest that

Congress was attempting in 1346 to garner to the federal government the right to impose upon

states a federal vision of appropriate servicesto establish, in other words, an ethical regime for

state employees. Such a taking of power would sorely tax separation of powers and erode our

federalist structure.). Courts and prosecutors should not be left with the power to define the



12/25


DAL01:1095804.1

range and quality of services a state employer may choose to demand of its employees. Id.

Further, given the uncertain boundaries of the honest services statute, the existence of a state

criminal law on point ensures that the defendant is given fair notice that he could be prosecuted.

See id. at 732-33.

The court inBrumley declined to decide whether the violation of state law must involve a

criminal statute. See id. at 734 (We do not reach the question of whether a breach of a duty to

perform must violate the criminal law of the state.). But the same principles it relied on to

establish the state law requirement, as well as the rule of lenity, lead to the conclusion that there

must be a violation of state criminal law.

First, federalism concerns establish a rule of construction against inferring that

Congress would criminalize conduct of state public officials that the state itself did not see fit to

criminalize. See id. Although the federal government does have an interest in ensuring that

federal dollars are spent properly by local officials (and on this basis may prosecute other

conduct not proscribed locally), these interests are already guarded by a plethora of other federal

laws, including the bribery statute charged in Count 10 of this case. The honest services statute

is designed to protect the interests ofconstituents affected by the state officials conduct, and the

court must not lightly infer that the Congress intended to trump standards of conduct that states

have established for their own politicians. See Brumley, 116 F.3d at 734 (We will not lightly

infer that Congress intended to leave to courts and prosecutors, in the first instance, the power to

define the range and quality of services a state employer may choose to demand of its

employees.).

Second, requiring a violation of state criminal law ensures that the defendant has

adequate notice that his conduct is criminal. In Brumley, the court observed that some



13/25


DAL01:1095804.1

defendants might complain about the lack of fair notice because of the uncertainty surrounding

the honest services statute, but it concluded that Brumley himself could not complain because he

had violated his duties under state law. Brumley, 116 F.3d at 733. The court later clarified

that these were duties owed under state criminal law. Id. at 735. In other words, the existence of

a state criminal law is what gave the defendant in Brumley adequate notice that his conduct was

criminal.

Furthermore, the rule of lenity dictates that the court choose the narrower construction of

this statute when an ambiguity exists. See Brown, 459 F.3d at 523. According to the Fifth

Circuit, this rule must especially be applied in the honest services context in order to resist the

incremental expansion of a statute that is vague and amorphous on its face and depends for its

constitutionality on the clarity divined from a jumble of disparate cases. Id. In reliance on this

principle, the court reversed a conviction for honest services fraud despite recognizing that

dishonest, fraudulent, wrongful or criminal act[s] may well have occurred. Id.(explaining that

the conduct did not amount to a federal crime under the honest-services theory of fraud

specifically(original emphasis)).

Finally, and in any event,Brumley and the rule of lenity clearly do not allow a violation

of local ethics rules to meet the state law requirement. See Brumley, 116 F.3d at 735-36

(carefully noting that Brumleys conviction was not based on ethics violations before affirming);

cf. Gov. Req. Jury Instruction No. 36, at pg. 37 (Docket # 779) (proposing instruction that would

allow local ethics violations to suffice) with Brumley, 116 F.3d at 735-36 (carefully noting that

Brumleys conviction was not based on ethics violations before affirming).



14/25


DAL01:1095804.1

4. Sheila Hill must be acquitted because the Government has failed to meet itsburden of proving that DAngelo Lee or Don Hill conspired to commit

deprivation of honest services

Applying the foregoing principles, it is clear that Don Hill and DAngelo Lee did not

conspire to accomplish the elements of honest services fraud. Neither Don Hill nor DAngelo

Lee acted as public officials with a scheme to defraud the public, as that concept is defined under

federal law. And neither of them has violated a provision of state law.

The evidence at trial does not permit a jury to find, beyond reasonable doubt, anything to

the contrary.

a. Neither Don Hill nor DAngelo Lee took official action for personalgain

(i) DAngelo LeeThe evidence at trial has shown that DAngelo Lees position as a City Planning

Commissioner was unpaid, and that he was entitled to pursue business opportunities for profit in

his capacity as a private citizen. There is no evidence that he was doing anything but acting as a

private citizen in promoting the LKC, although he certainly may have traded on the prestige of

his public office (as other Dallas planning commissioners have done, and as did Representative

Celona in Urciuoli, 513 F.3d at 296).

The LKC was a private development project from which DAngelo Lee hoped to earn a

profit. This fact alone, however, does not amount to honest services fraud. The Government has

produced no evidence that Lee actually did anything in his official capacity to promote this

personal interest. The Government has produced a telephone recording of DAngelo Lee venting

to Ron Slovacek about Stanley Spiegels refusal to sell property necessary for the LKC

development (the Lancaster Kiest Shopping Center, or Shopping Center). See Gov. Ex. 5626.

On that phone call, Lee talks about how he could (if he wanted to) get city code enforcement to



15/25


DAL01:1095804.1

start investigating the property and thereby apply pressure to sell. Spigel himself testified,

however, that he had neverheard these ideas from DAngelo Lee, so the supposed threats were

never actually made.

Even if they were, this could at most be some some kind of extortion, not honest services

fraud. Honest services fraud requires acts within the public officials core duties. The

Government has offered no evidence that the enforcement of code issues was within the scope of

Lees official responsibilities. At most, Lees efforts to encourage code enforcement would have

been an example of his trading on the prestige of his office to get something done where he

does not have official authority to do it himself. See supra Part A(2) (showing that such conduct

cannot form the basis of an honest services fraud offense). Moreover, the only evidence that

DAngelo Lee ever actually did anything with respect to code enforcement issues is that he

placed a telephone call to Hope Heart, private citizen,5 discussing code violations at the

Shopping Center and asking that Ms. Heart write letters encouraging code officials to investigate

the violations. See Gov. Ex. 5630. What is remarkable about this call is not that it shows

DAngelo Lee taking any official action (which it does not), but that it affirmatively disproves

that he had any official authority with respect to code issues. Otherwise, there would have been

no need for him to ask a private citizen to lobby for him.

The Government on re-direct of Spigel played an ambiguous phone message that Lee left

for state Senator Royce West, but it is unclear what Lee was talking about. See Gov. Ex. 5882.

Even if the call were sufficient to show some kind of lobbying effort by Lee, the same analysis

would apply as before. The conduct was not within the scope of Lees official responsibilities.

5 The Government does not identify this person other than by name, but it is believed that she was a tenant at theShopping Center.



16/25


DAL01:1095804.1

In conclusion, the Government has offered no evidence of any official action that Lee

took to promote the LKC development project. At most, the Government has suggested that he

might have misused his official position to gain access and influence. But unlike some canons of

ethics, the honest services statute is not concerned with a persons abusing the prestige of his or

her office for personal gain. See supra Part A(2). It is only concerned with the performance of

official actions without improper influence.

(ii) Don HillThere was nothing surprising about Don Hills support for the LKC. Several witnesses

have testified that he was passionate about economic development in all parts of the southern

sector of Dallas and that he had a particular interest in transit-oriented, mixed use developments.

Glenda Aguirre, his former secretary, elaborated on this point during her testimony. There was a

need for such a development in the southern sector and this is why he supported it.

The evidence that Don Hill had a financial interest in the project is too attenuated to pass

muster. In the midst of several phone calls where Hill talks about the LKC in the second and

third person (i.e., referring to the group as they and yall), the Government has pointed to a

single recorded conversation to suggest that he was expecting to receive some kind of financial

benefit if the Dallas Police and Fire Pension Fund invested in the project. See Gov. Ex. 5584. At

one point in that conversation, Hill tells Lee that if you add a million dollars, we should all

make money. Id. at pg. 11, ln. 13. Immediately before this, however, Hill, a trustee for the

pension fund, is talking about how the pension fund would need to make money on a deal in

order to make it a prudent investment. See id. at pg. 10, ln. 11-23. Therefore, a more likely

interpretation of the statement is that he believed the pension fundwould make money from the

investment, in addition to the LKC, if a million dollars were added (i.e., we referred to the

pension fund and the LKC). In any event, the isolated comment about adding a million



17/25


DAL01:1095804.1

dollars, viewed in the context of every other conversation that Hill has had about the LKC, is

simply not enough to prove beyond a reasonable doubt that he was financially interested.

Moreover, even if Hill did have a financial interest in the project (which he did not), the

Government cannot obtain a conviction unless it proves beyond reasonable doubt that this was

the motivation for a public action. Otherwise, the most it can show is that he violated a rule

against appearances of impropriety. Compare Brumley, 116 F.3d at 734 ([A] violation of state

law that prohibits only appearances of corruption will not alone support a violation of 1343

and 1346. (emphasis added)) with Dallas City Code of Ethics Ch. II, 12A-3 (To avoid the

appearance and risk of impropriety, a city official or employee shall not take any official action

[on matters in which he has an economic interest] (emphasis added)).

The Government has offered evidence that Mr. Hill was informed of a $10,000 gift for

him from the LKC on May 26, 2005. But the Governments own forensic expert, David Garcia,

could offer no evidence that Don Hill ever received this money. And there is no evidence that,

when he heard about it, he would have expected the money to be anything other than a campaign

or office-holder contribution, or at worst, an unexpected gratuity. Because campaign

contributions are essential for our political system and extra precautions are necessary before

they can be used as the basis for a conviction, it is not a crime to receive a campaign contribution

unless there is evidence of an express quid pro quo agreement.6 There is no express quid pro quo

agreement alleged or proven under Count 18.

6 This rule has been developed in the context of extortion under color of official right, but the reasoning applieshere as well. See McCormick v. United States, 500 U.S. 257, 273 (1991) (The receipt of [campaign] contributionsis . . . vulnerable under the Act as having been taken under color of official right, but only if the payments are madein return for an explicitpromise or undertaking by the official to perform or not to perform an official act.(emphasis added)); id. at 272 (Serving constituents and supporting legislation that will benefit the district andindividuals and groups therein is the everyday business of a legislator. It is also true that campaigns must be run andfinanced. Money is constantly being solicited on behalf of candidates, who run on platforms and who claim supporton the basis of their views and what they intend to do or have done. Whatever ethical considerations andappearances may indicate, to hold that legislators commit the federal crime of extortion when they act for the benefit



18/25


DAL01:1095804.1

Ultimately, there is no evidence to suggest that this money would have been anything

more than a gratuity of the sort described in Sawyer, 85 F.3d at 725-28. To prove that Mr. Hill

was expecting the money beforehand, the Government relies on an enigmatic statement by

DAngelo Lee to Andrea Spencer about Sheilas knowing that Spencer and Lee had received

checks and that she would never be full. See Gov. Ex. 5806 at page 2. This statement is

anything but clear. Standing alone, the vague, hearsay declarations in this conversation by a

non-testifying co-defendant are legally insufficient to support a guilty verdict. In fact, the

evidence shows that Mr. Hill was notexpecting the money and did notknow what it was for

when he heard about it. See Gov. Ex. 5814 at page 2 (Mr. and Mrs. Hill telling each other that

they didnt know anything about the money).

Further, Lee suggested on the phone that the money was to show Mr. Hill that they

appreciated him for setting up the meeting with Congresswoman Eddie Bernice Johnson. See

Gov. Ex. 5805 at page 2. But setting up meetings and lobbying public officials is not the type of

official action that can constitute honest services fraud, whether Hill was expecting the money

or not. Those actions are not part of Mr. Hills core official duties and thus cannot sustain an

honest services conviction. See supra Part A(2).

The same can be said of Mr. Hills encouraging the Dallas Police and Fire Pension Fund

(DPFP) to invest in the development. This could in no way be interpreted as an exercise of

of constituents or support legislation furthering the interests of some of their constituents, shortly before or aftercampaign contributions are solicited and received from those beneficiaries, is an unrealistic assessment of what

Congress could have meant[.]); United States v. Ganim, 510 F.3d 134, 142-43 (2d Cir. 2007) ([P]roof of anexpress promise is necessary when the payments are made in the form of campaign contributions[.] (emphasisadded)); United States v. Abbey, ___F.3d___, 2009 WL 874487, at *3 (6th Cir. 2009) (explaining that proof of quidpro quo in non-campaign contribution cases, unlike in the campaign context, can be shown by something short of aformalized and thoroughly articulated contractual arrangement); United States v. Taylor, 993 F.2d 382, 385 (4thCir. 1993) (making similar distinction); United States v.Delle Donna, 2008 WL 3821774, at *2 (D.N.J. Aug. 12,2008) (McCormick requires an overt quid pro quo as a necessary proof in the context of campaign contributions.Thus, to prove extortion based on campaign contributions, the Government must show that Defendants made anexplicit promise of a quid pro quo. (internal quotation marks and citation omitted)).



19/25


DAL01:1095804.1

Hills official authority on behalf of Dallas citizens. As a trustee of the DPFP, Mr. Hills

fiduciary duties were to the pension fund itself, not to the City of Dallas or its constituents. To

the extent that Hill is accused of breaching his duties to the fund, this must be remedied by a civil

cause of action for breach of trust. It is not an offense against the citizens of Dallas (the crime he

is charged with).7 And, in any event, there is no evidence that Hill exercised actual authority

with respect to the pension fund. The evidence shows that the only thing Hill did was facilitate a

meeting with a real estate advisor/manager of the pension fund (Brent Kroener), where he

encouraged the Fund to invest in Dallas, including the LKC project. Kroener himself testified

that he felt no pressure from Mr. Hill to make the investment and that it was not an unusual

request by a board trustee.

Although legislative actions that Hill took at City Council would probably be within the

scope of his official duties, the Government has identified none. The Indictment (which is not

evidence) makes reference to consent agenda8 items that Hill voted on with respect to an

unrelated project outside his district, called Cedar Crest Square, to be developed by a group

called Kiest Blvd. Compare Indictment at 134-35 with Gov. Ex. 3227, p. 8 (map showing

location of Cedar Crest Square, which is nowhere near the Lancaster-Kiest Corridor); Gov. Ex.

3226, pp. 2, 5 (demonstrating that Cedar Crest Square pertained to single family homes and town

houses, not a mixed use transit hub). There has been no evidence that Hill even knew who the

members of Kiest Blvd. were, much less that he had a financial interest in the project.

b. There is insufficient evidence to establish a violation of state law byDon Hill or DAngelo Lee

7 Although there is a version of honest services fraud that applies to non-public conduct, cf. Brown, 459 F.3d at 513-14 (involving prosecution of Enron employees),that crime has not been charged here.8 The consent agenda is a compilation of all routine or non-controversial matters that are pending for that weeksmeeting. All the items are approved simultaneously (by motion) for the sake of efficiency. There is no evidencethat Mr. Hill took special notice of any of the items on that list, including the ones mentioned in the Indictment.



20/25


DAL01:1095804.1

In addition to proving an intent to defraud, the Government must also show that Don Hill

and DAngelo Lee violated a provision of Texas state law.

In an attempt to establish this, the Government first alleges violations of numerous (non-

criminal) conflict of interests provisions that arise under the Texas Local Government Code and

various City of Dallas ethics rules. See Indictment at 10. In its proposed jury instructions, the

Government quotes from the rules specific sub-parts that it will rely on. See Gov. Req. Jury

Instr. 36, pp. 36-38. Although a breach of such standards would not satisfy Brumleys

requirement that there be a violation of state law, see supra Part A(3), the evidence still does not

prove a violation. These rules all establish standards of conduct with respect to some official

action that a public official must take when he has a conflict of interest (e.g., a vote). See Texas

Local Government Code 171.004(a)-(b) (If a local public official has a substantial interest in a

business entity or in real property, . . . [he shall file an appropriate affidavit] before a vote or

decision on any matter [that will have a special economic effect on the business] (emphasis

added)); Dallas City Charter Ch. III, 10 ([W]here his or her financial interests are involved . . .

the member shall not vote. (emphasis added)); Dallas City Code of Ethics Ch. II, 12A-3 (To

avoid the appearance and risk of impropriety, a city official or employee shall not take any

official action [on matters in which he has an economic interest]. (emphasis added))..]); City

Council R. Proc. 4.3 (A member prevented from voting . . . shall leave the city council meeting

during the debate[and] shall not vote. (emphasis added)). The Government has not proven that

DAngelo Lee or Don Hill took any of the actions outlined in these provisions, nor has it shown

Don Hill to have had any financial interest in the LKC.

The Government next alleges a violation of Texas Penal Code 39.06(a)(1), which

establishes an offense where a public official obtains non-public information by virtue of his



21/25


DAL01:1095804.1

office, and uses that information to acquire a pecuniary interest that may be affected by the

information. Id. The Government has offered no proof of any non-public information that Don

Hill or DAngelo Lee acquired by virtue of their offices, and which motivated their supposed

acquisition of an interest in the LKC.

Finally, the Government asserts a violation of the Texas bribery statute, which

criminalizes the receipt of any benefit in exchange for a public action. See Texas Penal Code

36.02(a)(1). There is insufficient evidence that Don Hill was ever given a bribe in return for

his actions with respect to the LKC. There is no evidence, for example, that Don Hill ever

received this money. And as explained above, there is no evidence that he was expecting it at the

time he took some official action.9

c. Because it is impossible to commit deprivation of honest serviceswithout the involvement of a public official who would commit the

underlying crime, the charge against Sheila Hill must be dismissed

There can be no conspiracy to commit deprivation of honest services in this context if a

public official is not part of the conspiracy. See United States v. Freedman, 568 F. Supp. 450,

451, 453-56 (N.D. Ill. 1983) (dismissing honest services charge against two lawyers accused of

conspiring to bribe a judge, because the judge was not a party to their conspiracy, and they

cannot be convicted of a scheme to defraud the citizenry of good government if they were in no

way connected in that scheme to a public official); accord United States v. Alexander, 741 F.2d

962, 964 (7th Cir. 1984) ([A]n intangible rights scheme is only cognizable when at least one of

the schemers has a fiduciary relationship with the defrauded person or entity.); United States v.

Turner, 465 F.3d 667, 676 (6th Cir. 2006) (holding that campaign employees could not be

9 One of the Governments requested Special Verdict forms asks the jury to apply the foregoing state laws and localethics rules to Sheila Hill. See Gov. Req. Jury Instr. at pg. 55. This is perhaps a simple error. The Indictment doesnot allege that she owed a duty to the public or that she was accountable under these standards, see Indictment at 13-14, and in any event, there is no evidence that she violated them.



22/25


DAL01:1095804.1

convicted for conspiring with political candidates to commit honest services fraud because the

political candidates, not yet having office, did not have the required status of a public fiduciary).

It is impossible to conspire to commit a crime if you do not have the involvement of

someone actually capable of committing that crime. See, e.g., United States v. Freedman, 562 F.

Supp. 1378, (N.D. Ill. 1983) (dismissing charge of extortion under color of official right as to

attorneys who obtained money under pretense that it would be used to bribe a state judge)

([W]hat is missing here is the actual involvement of a public official. . . . Just as a Hobbs Act

conspiracy must in itself have an actual link to interstate commerce, so must a conspiracy to

affect commerce by obtaining property under color of official right have an actual connection

to a public official. To hold otherwise would require a kind of mysterious levitationin which

Freedman and Moore could conspire only with each other, and with no one else involved, to

violate a statute neither could himself violate. This Court has not yet seen that version of the

Hindu rope trick.).

B. Even if there was a conspiracy, the evidence of Sheila Hills involvement is tooattenuated to support a conviction

Assuming for the sake of argument that the evidence is sufficient to preclude a judgment

of acquittal as to Sheila Hills co-defendants, it is plainly insufficient to preclude a judgment of

acquittal as to her. The Government cannot build its case on inference upon inference . . . mere

suspicion[,] and innuendo. United States v. Menesses, 962 F.2d 420, 427 (5th Cir. 1992). To

convict her of conspiracy to commit honest services fraud, a jury would have to find beyond

reasonble doubt that Sheila Hill believed Don Hill or DAngelo Lee to be taking official action

for their own personal gain. The evidence does not permit such a finding.

There is no evidence that Mrs. Hill had any idea about such a conspiracy. She was not a

part of the LKC, was never in the loop regarding their activities, and the only thing she ever



23/25


DAL01:1095804.1

did was receive a $10,000 gift for Don Hill from the LKC that she clearly was not expecting.

See Gov. Ex. 5814 at page 2 (Sheila Hill telling Don Hill that she did not know what money was

for); Gov. Ex. 5818 (Sheila Hill initially responding, no, when asked by DAngelo Lee if she

knew who the $10,000 was for). There are any number of non-criminal explanations as to why

she would have received this checkfor example, she trusted Mr. Hill and believed that if he

was receiving money for something, it must have been legitimate. It is the Governments burden

to prove otherwise, and that she had a criminal intent beyond reasonable doubt.

Based on the evidence presented to date, the mostthe Government can show is that she

believed money to be a thank you gift (i.e., gratuity) for actions that Mr. Hill would have

performed anyway. There is no evidence that she had any knowledge about official actions that

Mr. Hill would supposedly perform for personal gain, or that she willfully joined the conspiracy

to help accomplish such acts. As to DAngelo Lee, there is no evidence that she believed him to

be performing any public actions at all with respect to the LKC. When told Mrs. Hill about the

checks, he was in his capacity as a private citizen/developer (a member of the LKC) showing

appreciation to Don Hill, the public official. She had no reason to believe that Lee was ever

acting as a public official in this context.

CONCLUSION

The Government has failed to produce evidence sufficient to support a finding that Don

Hill or DAngelo Lee conspired to accomplish all the elements of honest services fraud.

Moreover, there is no evidence of Sheila Hills involvement with any such conspiracy.

Therefore, Sheila Hill respectfully requests that the court grant this motion and enter a judgment

of acquittal regarding the charges of Count 18.



24/25


DAL01:1095804.1

September 1, 2009 Respectfully submitted,

/s/ Victor D. VitalVictor D. VitalState Bar No. 00794798Jon MureenState Bar No. 24060313BAKER BOTTS L.L.P.2001 Ross AvenueDallas, Texas 75201-2980Telephone: (214) 953-6500



25/25

DEFENDANT SHEILA HILLS MOTION FOR JUDGMENT 25

CERTIFICATE OF SERVICE

This is to certify that on September 1, 2009, I electronically filed the foregoingdocument and all parties of records were served view the courts ECF system.

/s/Victor VitalVictor Vital


Doc 970_Farrington Motion for Acquittal

Documents