By William F. Zorzi
A defense lawyer for Maryland state Sen. Nathaniel T. Oaks argued in federal court Friday that six corruption charges against the lawmaker should be dropped because they were based on an action that technically was not an “official act,” under a 2016 Supreme Court ruling.
Rebecca S. Talbott, one of two federal public defenders representing the West Baltimore Democrat, argued that Oaks was wrongly charged in a bribery scheme in which he allegedly accepted $15,300 in return for bond bill legislation because the bill was never actually introduced in the General Assembly.
But Talbott’s argument did not seem to persuade U.S. District Judge Richard D. Bennett, who presided over a defense motions hearing in the Oaks case Friday in Baltimore.
“It is a very creative argument you’re making, Ms. Talbott,” Bennett said, later adding, “I don’t think it’s supportable.”
Bennett did not rule from the bench Friday, but rather said he would issue a written decision on the defense motions “quickly,” likely by Tuesday.
Talbott and Lucius T. Outlaw III, the public defenders representing Oaks, earlier filed memoranda supporting their requests to dismiss a charge of “honest services wire fraud” and five charges of violating the federal Travel Act by using an “interstate facility” (a cellular telephone) to break Maryland’s bribery law.
The prosecution, led by Assistant U.S. Attorney Kathleen O. Gavin, has urged the judge to reject the defense arguments, and Friday was no different.
“The defense keeps holding up a strawman that … everything under the sun … is not an official act,” Gavin said.
Oaks is charged with nine criminal counts related to the bribery scheme, in which he allegedly took $15,300 from an FBI confidential source posing as Texas developer “Mike Henley,” who was looking to do business in Baltimore.
In return, the government charged, Oaks agreed to sponsor a bond bill for a “Henley” project in the city. That occurred before the lawmaker knew he was the target of a federal investigation.
Oaks is also charged with one count of obstruction of justice, which stems from allegations that while he later was supposed to be cooperating with federal investigators, he tipped off a target in the bail-bonds industry, known in his case only as “Person #1,” to the existence of a corruption probe.
The charges against Oaks thus far unchallenged by the defense are three counts of wire fraud and the obstruction count.
Oaks has pleaded not guilty to all the charges.
Court documents show that Oaks had gone so far in November 2016 as to ask the Maryland Department of Legislative Services to draft the bond bill, which would have generated $250,000 for a “Multi-Family Housing Development at Druid Park Lake” if the legislation had been introduced, approved by both houses of the General Assembly and signed into law by the governor.
The bill, however, was only drafted at Oaks’ request and never introduced by the lawmaker. As a result, Talbott argued Friday, his action was “not an exercise of formal, official governmental power” – an “official act” — and therefore, he could not be charged with “honest services wire fraud” or violations of the Travel Act.
Talbott backed her arguments by citing the 2016 U.S. Supreme Court decision that vacated a bribery conviction against former Virginia Gov. Robert F. McDonnell (R). In a unanimous decision, the high court made it harder to prosecute public officials for corruption by narrowing the definition of what is and is not an “official act.”
Bennett told Talbott and Outlaw that if he did rule against their motions to dismiss the six charges, it did not preclude their arguing later at trial that the government did not prove its case that a criminal act had been committed.
“Obviously, you can raise this issue once the evidence has been presented,” Bennett said.
A third motion had been on the agenda for consideration Friday, but the defense lawyers Wednesday filed a motion to withdraw their earlier request for Bennett to agree, ahead of trial, to instruct a jury on an entrapment defense, should entrapment be proved at trial. He signed the order withdrawing the entrapment motion late Wednesday.
On Friday, the judge made mention of that motion and told Talbott and Outlaw that nothing that had been done thus far precluded them from pursuing an entrapment defense at trial.
Bennett began the hearing by referring to two “confidentiality issues” regarding FBI undercover sources in the case against Oaks, both of whom have been named in the last month.
In a March 1 court filing, defense lawyers identified “Mike Henley” as William Myles, an FBI confidential informant who has been used in a variety of federal investigations across the nation.
“I’m afraid that has already been disclosed in the public filings by the defendant,” Bennett said. “It shouldn’t have been, and it was. That’s just the way it is.”
The prosecution, he said, “has taken issue with the timing of that disclosure, but I can’t undo what’s already been done.
“It is what it is, and I’m not going cast aspersions on the matter of ‘Mike Henley,’ but it … happened, so let’s just make sure we take precautions not to do that again,” he said.
The second issue Bennett mentioned was the so-called “Cooperating Witness” (the “CW”) in the Oaks case. The witness was identified March 3 by Maryland Matters as Robert J. Barrett, a key aide to two Baltimore County executives who took at least $22,000 in bribes before agreeing to work undercover for the FBI, in return for a plea agreement.
Barrett has only ever been identified in court filings as both the “Cooperating Witness” and “Confidential Witness” (the “CW,” in shorthand), and by the defense as “S-00063808.”
“That person has not been named publicly, and we’re going to maintain the status quo,” Bennett said. “Any reference to the ‘Confidential Witness’ will be to the ‘Confidential Witness.’”
Oaks’ trial on the nine bribery-related charges is scheduled to begin April 16, a week after the Maryland General Assembly adjourns. A separate trial on the obstruction of justice charge is set for Aug. 20.