347 F. Supp. 3d 38
D.C. Cir.2018Background
- Indictment alleges Concord and co‑defendants conspired to impair U.S. government functions by using deception to hide Russian involvement in 2016 election‑related activities (e.g., unreported social‑media expenditures, failing to register under FARA, false visa statements).
- Government frames the targeted functions narrowly: FEC (administering FECA reporting), DOJ (administering FARA registration/reporting), and DOS (visa issuance/information gathering).
- Concord moved to dismiss Count I under Rule 12(b)(3) on grounds including failure to state an offense, inadequate mens rea, vagueness, and that § 371 should be limited to schemes depriving the government of property. Court previously denied a motion challenging Special Counsel appointment and now addresses the merits of the § 371 challenge.
- The indictment pleads deceptive means: failures to disclose where legal duties exist, affirmative misrepresentations (e.g., visa statements), use of false identities, destroyed evidence, and technical infrastructure to mask origin of activities.
- The government charges a § 371 defraud‑clause conspiracy (impairing lawful government functions by deceit), not an offense‑clause conspiracy tied to any single substantive statutory violation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency under § 371 (failure to state an offense) | Gov't: indictment identifies specific agency functions and deceptive means; § 371 covers conspiracies to impair agency functions without needing an underlying substantive crime. | Concord: indictment fails because it does not allege Concord agreed to violate specific statutory duties; cannot criminalize lawful conduct disguised as deception. | Denied. Court finds indictment sufficiently alleges conspiracy to impair FEC/DOJ/DOS disclosure/admin functions by deceptive means; § 371 need not rest on separate substantive violation. |
| Deceit element / duty to disclose | Gov't: alleged failures to report plus affirmative deception suffice; where failures to disclose are alleged, a legal duty to disclose exists (FECA/FARA reporting). | Concord: non‑disclosure alone is not deceptive absent a legal duty; mens rea issues follow from FECA/FARA willfulness standards. | Denied. Court concludes indictment alleges both failures to disclose where legal duty exists and affirmative misrepresentations; deceit adequately pleaded. |
| Mens rea (willfulness / knowledge of law) | Gov't: § 371 requires intent to deceive and to impair agency function but not a separate willfulness requirement or knowledge of statutory law. | Concord: because FECA/FARA are complex and their enforcement requires willfulness, § 371 should demand willfulness/knowledge of the law, especially given First Amendment concerns. | Denied. Court holds § 371 does not import a willfulness requirement; government must show knowledge of the governmental functions targeted but not detailed knowledge of the underlying statutes. |
| Vagueness / First Amendment risk | Gov't: statute and judicial gloss give fair notice; indictment targets deceptive conduct, not protected political speech. | Concord: § 371 is vague as applied to alleged electoral interference and risks chilling protected speech. | Denied. Court finds § 371 not unconstitutionally vague as applied; mens rea and deceit requirements narrow the statute and First Amendment not implicated because charge targets fraudulent conduct. |
Key Cases Cited
- Hammerschmidt v. United States, 265 U.S. 182 (1924) (establishing § 371 covers conspiracies to impair lawful government functions by deceit)
- Tanner v. United States, 483 U.S. 107 (1987) (the conspiracy's target must be the United States/agency for defraud‑clause liability)
- Hamling v. United States, 418 U.S. 87 (1974) (indictment sufficiency standards: must contain elements and give fair notice)
- In re Sealed Case, 223 F.3d 775 (D.C. Cir. 2000) (legal impossibility defense where alleged conduct did not violate FECA; limits on charging conduct that is not unlawful)
- Cheek v. United States, 498 U.S. 192 (1991) (interpretation of "willfully" in criminal statutes—knowledge of law context)
- Ratzlaf v. United States, 510 U.S. 135 (1994) (narrow construction of "willfully" where statute could reach innocent conduct)
- United States v. Curran, 20 F.3d 560 (3d Cir. 1994) (discussing intent/willfulness in cases involving FEC reporting schemes)
- United States v. Kanchanalak, 41 F. Supp. 2d 1 (D.D.C. 1999) (explaining § 371 defraud‑clause does not require violation of a separate substantive duty to support a conspiracy to deceive the FEC)