434 F.Supp.3d 939
D. Colo.2020Background
- Criminal charges under the Procurement Integrity Act (41 U.S.C. §§ 2101–07) and related statutes against Mykhael Kuciapinski, Kevin Kuciapinski, and Randolph Stimac for procurement-related offenses including unlawful disclosure/receipt of procurement information and conspiracy.
- The Court granted early briefing on contested jury-instruction issues because procurement prosecutions and precedent are relatively rare and pattern instructions are lacking.
- Central statutory scheme: §2102(a)/(b) prohibit disclosure/obtaining of certain pre-award “procurement information”; §2105(a) attaches criminal penalties and an additional intent requirement (e.g., intent to exchange for value or to obtain/confer a competitive advantage).
- Defendants filed detailed proposed instructions; the Court limited its ruling to discrete legal questions (not final, complete instructions), preserving parties’ arguments for trial/appeal.
- The Court resolved multiple statutory-interpretation and instruction disputes (knowledge elements, scope of “person,” meaning of “exchange,” affirmative-act/willfulness, aiding-and-abetting, conspiracy mens rea, and certain definitional requests), sometimes deferring until evidence is presented.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of “knowingly” in §2102(b) (knowledge of nature/timing of documents) | Gov: §2102(b) requires only that the person came into possession before award; need not know contract was not yet awarded | Def: Jury must find defendant knowingly obtained procurement information, knew it was procurement information, and knew it was pre-award | Court: Agrees with Def; "knowingly" extends to recognizing documents as procurement information and that they were obtained before award (so mental-state applies to those elements) |
| Who is a “person” under §2102(b) | Gov: §2102(b) applies to any person who obtains procurement information | Def: §2102(b) applies only to government employees/agents (relying on GEO Group) | Court: Rejects GEO Group; plain text and context show §2102(b) applies to any person (not limited to employees) |
| Meaning/scope of “exchange” in §2105(a) | Gov: (implicit) natural reading separates the two infinitives; intent to exchange is one route and intent to obtain/confer advantage is another | Def: Congress’s recodification implies “exchange” now applies to both prongs, so intent to exchange must be proved for any §2105(a) conviction | Court: Rejects Def; §2105(a) naturally parses into separate intents (to exchange OR to obtain/confer advantage); did not apply rule of lenity to impose an exchange requirement on both prongs |
| Requirement of an “affirmative act” to “obtain” procurement information | Gov: no novel passive-receipt theory is being asserted; elements in §2102/§2105 suffice | Def: A violation requires an affirmative act (passive/accidental receipt insufficient) | Court: No separate affirmative-act instruction needed now; §2102/§2105 elements (knowing obtaining plus intent) suffice. If Gov pursues passive-receipt theory, instruction may be revisited |
| Requirement of a separate “wrongful” willfulness element | Gov: Mens rea is defined by statute ("knowingly" and §2105 intent) | Def: Legislative history requires "knowing and willful"/wrongful intent for criminal penalties | Court: No freestanding wrongful-intent element beyond the statutory mens rea; legislative-history argument does not add an extra element |
| Aiding-and-abetting as to §2102(b) | Gov: Proposed aiding-and-abetting instruction | Def: Indictment does not charge aiding-and-abetting for §2102(b) | Court: Will not give an aiding-and-abetting instruction absent a superseding indictment charging that theory |
| Conspiracy mens rea (what conspirators must intend) | Gov: Use Tenth Circuit pattern: proof of agreement to violate the law suffices; no need to prove agreement to each discrete element | Def: Jury should be required to find co-conspirators intended the underlying elements of the substantive §2102 offense | Court: Rejects the higher requirement; conspirator must intend to further an endeavor that would satisfy the substantive offense, but need not understand or agree to each discrete element |
| Use of shorthand "SEI contract/SEI project" and contract specificity in instructions | Gov: Wants to present evidence and terminology used during conspiracy before ruling; terms used variably in exhibits/witnesses | Def: Requests explicit instruction limiting the charged contract to a specific HHS SEI contract to avoid confusion/prejudice | Court: Defers ruling until trial evidence is presented; will consider whether tailored instruction is warranted after hearing proof |
Key Cases Cited
- Rehaif v. United States, 139 S. Ct. 2191 (2019) (presumption that "knowingly" applies to each element of a criminal offense)
- Flores-Figueroa v. United States, 556 U.S. 646 (2009) ("knowingly" ordinarily applies to elements introduced by that word)
- GEO Group, Inc. v. United States, 100 Fed. Cl. 223 (2011) (Fed. Cl. decision construing predecessor §423(b); court declined to follow that reading)
- Jacobs Technology Inc. v. United States, 100 Fed. Cl. 198 (2011) (Fed. Cl. decision noting PIA violations typically require affirmative acts)
- Salman v. United States, 137 S. Ct. 420 (2016) (analogy to insider-trading limits on nonpublic information use)
- United States v. Salinas, 522 U.S. 52 (1997) (conspiracy mens rea principles; rule of lenity limits)
- United States v. Feola, 420 U.S. 671 (1975) (conspiracy requires at least the mens rea of the substantive offense)
- United States v. Quarrell, 310 F.3d 664 (10th Cir. 2002) (statutory ambiguity and lenity principles)
- United States v. Iverson, 818 F.3d 1015 (10th Cir. 2016) (indictments may charge alternative means conjunctively and proof may be disjunctive)
- United States v. Gunther, 546 F.2d 861 (10th Cir. 1976) (same principle on alternative means)
- United States v. Albertini, 472 U.S. 675 (1985) (courts follow plain meaning of criminal statutes absent extraordinary contrary legislative history)