michael brown prosecution sentencing memo

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA : CRIMINAL NO. 13-164 (RWR) :

v. : :

MICHAEL A. BROWN, : : Defendant. :

GOVERNMENT=S MEMORANDUM IN AID OF SENTENCING

The United States of America, by and through its attorney, the United States Attorney for

the District of Columbia, respectfully submits this memorandum in aid of sentencing concerning

Defendant Michael A. Brown.

Procedural Background

On June 10, 2013, Defendant, a former member of the Council of the District of

Columbia (“D.C. Council”), pled guilty to a one-count Information charging bribery of a public

official for a scheme in which Defendant accepted a total of $55,000 in a series of meetings,

spanning eight months, with undercover FBI agents posing as officials of a company that

purportedly wanted to win government contracting opportunities. Defendant entered his guilty

plea before the Honorable Robert L. Wilkins, pursuant to a Plea Agreement dated May 30, 2013.

See ECF No. 8 (the “Original Plea Agreement”). The guilty plea was pursuant to Rule

11(c)(1)(C) of the Federal Rules of Criminal Procedure and capped the maximum term of

incarceration at 37 months, which was at the low-end of the advisory Guidelines range stipulated

to by the parties (37-46 months). During the plea proceeding, Defendant acknowledged the

factual basis for his plea of guilty as presented in the Statement of the Offense and Other

Conduct. See ECF No. 9 (the “Original Statement of Offense and Other Conduct”). Judge

Case 1:13-cr-00164-RWR Document 33 Filed 04/24/14 of 28

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Wilkins concluded that Defendant’s guilty plea was knowing, voluntary, and with a sufficient

factual and legal basis, but deferred ruling on whether or not to accept the Rule 11(c)(1)(C)

guilty plea until completion of a Pre-Sentence Report and arguments from counsel. As part of

the Original Plea Agreement, Defendant agreed to cooperate with the government in ongoing

criminal investigations.

On January 16, 2014, this matter was reassigned to this Court after Judge Wilkins was

elevated to the United States Court of Appeals for the District of Columbia Circuit.

On February 7, 2014, the parties filed a Joint Status Report and Joint Motion to Amend

Plea Agreement and Statement of Offense and Other Conduct. See ECF No. 25. The Amended

Plea Agreement modified Paragraph 4 of the Original Plea Agreement to change only the agreed

sentence under Rule 11(c)(1)(C), specifically, that a sentence of up to 43 months of

incarceration, rather than 37 months of incarceration as provided in the Original Plea Agreement,

is the appropriate sentence in this matter pursuant to the sentencing factors set forth in 18 U.S.C.

§ 3553(a).

Sentencing in this matter is scheduled for May 8, 2014, at 10:00 a.m.

Summary of the Government’s Sentencing Recommendation

For the reasons discussed further below, pursuant to Rule 11(c)(1)(C) of the Federal

Rules of Criminal Procedure, the government respectfully requests that the Court accept the

Amended Plea Agreement between the government and Defendant. As provided in the

Amended Plea Agreement, the government recommends that this Court sentence Defendant to

43 months of incarceration, which is the maximum period of incarceration allowed under the

Amended Plea Agreement, impose a forfeiture money judgment in the amount of $35,000, and

impose a three-year period of supervised release. As discussed further below, when one views


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Defendant’s history and characteristics, his financial condition at the time of the offense, the

nature and circumstances of the offense, the seriousness of the offense, and the need for avoiding

unwarranted sentencing disparities, there can be little doubt that a sentence of 43 months is

sufficient but not greater than necessary to comply with the sentencing factors in 18 U.S.C. §

3553(a). More particularly, based on the defendant’s prior criminal history, which significantly

graduated in severity over time from a misdemeanor campaign finance violation in 1997, to more

serious campaign finance violations in at least 2007 and 2008, and to the instant offense of

bribery in which Defendant sold his elected office for personal gain, the government respectfully

submits that a period of incarceration of 43 months, which is slightly higher than the mid-point

of the advisory Guidelines range of 37-46 months, is the appropriate sentence here.

The Offense Conduct

Defendant was elected as an at-large member of the D.C. Council in November 2008 and

took office in January 2009. He left office on January 2, 2013, following his defeat in November

2012 for re-election. Defendant then launched a bid to win another at-large Council seat in a

special election scheduled for April 23, 2013. Defendant withdrew his candidacy on April 2,

2013, less than three weeks after he was confronted by law enforcement in the bribery scheme.

Defendant’s at-large Council duties included acting as Chair of the Committee on

Economic Development and Housing. The committee is responsible for matters related to

economic, industrial, and commercial development. The bribery scheme focused largely on a

special program run by the District of Columbia government to help its small, local businesses

become economically viable: the certified business enterprise (CBE) program. Status as a CBE

carries preferential procurement and contracting opportunities. To be eligible for this


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designation, businesses must meet certain requirements and be certified by the District of

Columbia’s Department of Small and Local Business Development (DSLBD).

Prior to July 11, 2012, Defendant had discussions about obtaining assistance of $50,000

to $75,000 for Defendant from a government contractor. Defendant expected to assist the

government contractor with its business if the contractor provided such financial assistance to

Defendant.

These discussions led to a series of meetings with two undercover FBI agents, posing as

employees of a Maryland company – referred to in court papers as “Company M” – that wanted

CBE approval and contracting opportunities. Between July 2012 and March 2013, Defendant

met in person with one or both of the undercover agents a total of eight times. He communicated

primarily with an agent described in the court documents as “Undercover Employee 1” or “UCE-

1.” He was in contact with this undercover agent on more than 30 separate days, in person, by

phone, or by text, frequently seeking payment, in whole or in part, for the efforts he was making

on the company’s behalf.

Indeed, over the months, Defendant made calls on the company’s behalf to the director of

the DSLBD, introduced the undercover agents to a contractor at a symposium he sponsored,

directed the Committee Director of the Committee on Economic Development and Housing to

assist the company, and took other actions meant to speed through the company’s attempts to

win approval as a CBE. He continued these efforts even after his defeat in the November 2012

election and even after leaving office on January 2, 2013.

The payments to Defendant were made during the following meetings:

July 11, 2012: Defendant met UCE-1 at the Channel Inn, a restaurant in the District of

Columbia. Prior to July 11, 2012, Defendant had not met UCE-1. UCE-1 was introduced to


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Defendant as an employee of Company M, which was purportedly interested in obtaining CBE

approval and contracting opportunities in the District of Columbia. During the meeting,

Defendant accepted $15,000 in cash from UCE-1 as part of a promised amount of $50,000 for

Defendant’s efforts to use his official position to assist the company in becoming a CBE and

obtaining contracting opportunities. The cash was in denominations of $100 bills and in a duffel

bag with a Washington Nationals baseball hat and two Nationals T-shirts.

August 7, 2012: Defendant met with UCE-1 at the Channel Inn and accepted an

additional $10,000 in cash in exchange for continuing to assist the company in obtaining

approval of its CBE application and contracting opportunities. The cash was in denominations

of $100 bills and placed inside a Washington Redskins coffee mug.1 During the meeting on

August 7, 2012, UCE-1 stated that Defendant would get “the other 25” upon approval, and

Defendant said, “or north.” Defendant said he would call the DSLBD after the company

submitted the necessary paperwork for the CBE application and aim to have the application

moved “to the top of the pile.”

August 28, 2012: Defendant again met with UCE-1 at the Channel Inn and accepted

$5,000 in cash in exchange for Defendant’s assistance with the CBE application and contracting

opportunities. The cash was in denominations of $100 bills and in a silver coffee mug.2 During

1 Prior to that meeting, Defendant and UCE-1 had met on August 2, 2012, at the Four Seasons Hotel in the District of Columbia, to discuss Company M’s CBE application and its contracting opportunities. During the conversation on August 2, 2012, Defendant suggested that Company M could pay him an amount of money “north of” – meaning more than – the $35,000 balance that Company M owed to Defendant. 2 The payment happened a day after Defendant and UCE-1 spoke by telephone on August 27, 2012. During that call, UCE-1 told Defendant that UCE-1 had a meeting at the DSLBD scheduled for August 30, 2012, but that UCE-1 might have to attend the meeting at the DSLBD without a certificate of occupancy as part of Company M’s CBE application. Defendant told


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the meeting on August 28, 2012, Defendant said he would continue efforts to move the

company’s application as quickly as possible.

November 29, 2012: After losing his bid for re-election as an at-large member of the

D.C. Council on November 6, 2012, Defendant continued to perform his duties as a

Councilmember and, among other things, hosted an economic development symposium. During

the symposium, Defendant introduced the two undercover agents to the director of the DSLBD

concerning the company’s CBE application. Defendant also introduced the undercover agents to

a local businessman, who, according to Defendant, facilitated financing for contractors. That

night, Defendant met UCE-1 at the Chanel Inn and accepted another $5,000 in cash as payment

for his assistance with the CBE application and contracting opportunities. The cash was in

denominations of $100 bills and in an envelope.3

March 14, 2013: After leaving office on January 2, 2013, Defendant continued to

attempt to meet and talk to the undercover agents. On March 14, 2013, Defendant met the two

undercover agents at a conference room at the Marriott Wardman Park Hotel, after being told the

company was pleased with how quickly its application was moving along and ready to make its

final payment. During the meeting, Defendant accepted $15,000 in cash as fulfillment of the UCE-1 that Defendant would call the District of Columbia’s Department of Consumer and Regulatory Affairs (DCRA) to check on the status of Company M’s certificate of occupancy. Later, on August 27, 2012, Defendant called UCE-1 and stated that he had called the “head dude” at the DCRA to “see what’s up.” 3This payment followed a meeting on the evening of November 15, 2012, between Defendant, UCE-1, and UCE-2 at The Hamilton restaurant in the District of Columbia. During the meeting, Defendant stated he was continuing to look into a “waiver” for Company M’s CBE certification. In addressing the approach Defendant anticipated that the DSLBD would take to approve Company M’s CBE application, Defendant stated, “I don’t think they’re going to do just one company out of the whole. You have to be in a group of companies . . . they’re trying to figure out how many to put . . . in another wave that’s about to come through. And then we can put you guys in that wave. Rather than just you by yourself because then there’s less scrutiny.”


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company’s promise to pay $50,000 to Defendant for assistance in obtaining CBE approval and

government contracting opportunities. Defendant also accepted a “bonus” of $5,000 cash for

Defendant’s past official acts on behalf of the company and future influence if Defendant were

re-elected to public office. The cash was in denominations of $100 bills and wrapped with a

rubber band. At the end of the meeting, law enforcement agents entered the room to announce

their presence and seized the $20,000 in cash from Defendant.

Other Conduct Admitted by Defendant

As part of his plea, Defendant also admitted to additional criminal conduct relating to

campaign finance violations concerning his 2007 and 2008 campaigns for D.C. Council.

Specifically, Defendant admitted to receiving “off-the-books” campaign contributions from

Jeffrey Thompson (“Thompson), a local businessman in the District of Columbia, who

Defendant knew through family connections and mutual friends. Thompson directed payments

to Defendant’s campaigns through another co-conspirator, Eugenia C. Harris (“Harris”).

Secret Funding for Defendant’s Campaign for the Ward 4 Seat on the D.C. Council (2007) In the Spring of 2007, Defendant was an announced candidate in a special election for the

Ward 4 seat on the D.C. Council. In or around that time, Defendant met Thompson to address

Defendant’s 2007 campaign for the Ward 4 seat. Defendant understood from his discussion with

Thompson during that meeting, and from similar discussions with Thompson during Defendant’s

candidacy for Mayor in 2005-06, that Thompson would not contribute to Defendant’s campaign

in a public manner due to Thompson’s perception that his business activities required him to

publicly support different candidates based on the contemporaneous political dynamics. During

the same meeting, however, Thompson agreed to contribute to Defendant’s campaign in a non-


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public manner. Defendant understood that these contributions would be publicly disclosed as

having been contributed in the name of another person and also would exceed the limits on the

amount that an individual could contribute to a political campaign. At the end of the meeting,

Thompson told Defendant that he would hear from somebody to arrange Thompson’s

contribution to Defendant’s political campaign committee.

Defendant was later contacted by Harris, who discussed with Defendant the arrangement

through which Thompson would contribute to Defendant’s campaign. Specifically, Harris and

Defendant agreed to mask the contribution from Thompson as a campaign contribution directly

from Defendant to his own political campaign (since there was no limit on the amount that a

candidate could contribute to his or her own campaign, provided the candidate publicly disclosed

the contribution). Pursuant to the agreement, Thompson provided the money to Harris, who then

sent two wire transfers in the amount of $10,000 each to Defendant’s personal account in April

and May 2007. Defendant, in turn, contributed the funds to his political campaign and filed

campaign finance reports with the District of Columbia’s Office of Campaign Finance (OCF)

publicly disclosing that Defendant made an individual contribution of $25,000 to his political

campaign in April 2007. Defendant knew that this false disclosure disguised the fact that

Thompson was the source of a $20,000 contribution.

Defendant was not successful in the election for the Ward 4 seat on the D.C. Council.

Secret Funding for Defendant’s Campaign for At-Large Member of the D.C. Council (2008) After losing the election for the Ward 4 seat, Defendant decided to enter the election for

At-Large Member of the D.C. Council, which was scheduled to be held on November 4, 2008.

Defendant met with Thompson again in 2008, during which Thompson agreed to support


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Defendant’s campaign for an At-Large seat on the D.C. Council by helping to solicit

contributions, but not in a public manner. Thereafter, Defendant’s campaign received donations

from individuals and entities associated with Thompson. When Defendant’s campaign started to

experience financial troubles in October 2008, including at least one check returned for

insufficient funds, Defendant again met with Thompson and sought an in-kind contribution in

excess of $100,000 to fund get out the vote efforts in support of and in coordination with

Defendant’s campaign. During the meeting, Thompson discussed and agreed with Defendant to

the following: (i) Thompson would contribute to Defendant’s campaign, but not in a public

manner; (ii) Thompson’s contribution would exceed the limits for an individual contribution

under campaign finance laws; and (iii) Harris, at Thompson’s direction, would be in contact with

Defendant to arrange Thompson’s in-kind contribution. Defendant understood from the

discussion that Thompson’s contribution would not be disclosed to OCF.

Following this meeting, at Thompson’s direction, Defendant met with Harris and

provided her with a list of expected campaign expenses to be paid with funds from Thompson.

For example, on October 29, 2008, at Thompson’s direction, Harris sent a $35,000 wire transfer

to a vendor for services provided to Defendant’s campaign. Additionally, on November 3, 2008,

the day before the general election, at Thompson’s direction, Harris issued a check for $44,150

payable to Defendant, which Defendant cashed the same day. Defendant provided $39,850 in

cash and a cashier’s check in the amount of $4,300 to a campaign consultant to pay for get out

the vote efforts.

Defendant subsequently filed false and misleading campaign finance disclosures with

OCF that misrepresented and concealed the in-kind contributions provided directly and indirectly

by Thompson and Harris.


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In November 4, 2008, Defendant was elected an At-Large Member of the D.C. Council.

Statutory Penalties

Defendant faces a maximum sentence of 15 years of imprisonment; a fine of up to

$250,000; a term of supervised release of up to three years; and a $100 special assessment. PSR

&& 5, 170, 181, 190 (citing relevant statutory sections).

Sentencing Guidelines

A district court “should begin all sentencing proceedings by correctly calculating the

applicable Guidelines range.” United States v. Gall, 552 U.S. 38, 49 (2007) (citation omitted).

The Guidelines are “the product of careful study based on extensive empirical evidence derived

from the review of thousands of individual sentencing decisions,” id. at 46, and are the “starting

point and the initial benchmark,” id. at 49. The district court should next consider all of the

applicable factors set forth in 18 U.S.C. § 3553(a). Id. at 49-50. Indeed, the Guidelines

themselves are designed to calculate sentences in a way that implements the considerations

relevant to sentencing as articulated in § 3553(a). Rita v. United States, 551 U.S. 338, 348-49

(2007).

The parties stipulated that Defendant’s total offense level under the Guidelines was 21.

With a total offense level of 21 and a criminal history of Category I, the parties agreed that the

applicable Guideline range is 37 to 46 months of imprisonment.

The Presentence Investigation Report (“PSR”) places Defendant=s total offense level at

23. PSR & 119. The PSR calculates Defendant=s criminal history in Category I (0 points). PSR

& 126. The Guideline range for a total offense level of 23 with a criminal history of Category I

is 46 to 57 months of imprisonment. PSR & 171. The Guidelines recommend a period of


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supervised release of one year to three years for a defendant convicted of 18 U.S.C. § 201. PSR

& 182.

The difference between the PSR’s Guideline range and the parties’ stipulated Guideline

range is that the parties stipulated that a six-level adjustment would be proper under §

2B1.1(b)(1)(D) for a value of payments in excess of $30,000, but less than $70,000. By contrast,

the PSR applied an eight-level adjustment under § 2B1.1(b)(1)(E) and § 2C1.1(b)(2) for a value

of payments in excess of $70,000, but less than $120,000. PSR & 110.

The government respectfully submits that the PSR’s reliance on § 2B1.1(b)(1)(E) as the

appropriate specific offense characteristic for purposes of calculating the value of the payment

pursuant to § 2C1.1(b)(2) is without factual or legal basis. It is undisputed that, as noted in the

original and amended plea agreements, the value of the bribe payment in this case was $55,000,

which falls under § 2B1.1(b)(1)(D), as it exceeds $30,000, but is less than $70,000. The PSR

does not contend otherwise. Instead, to reach its higher loss amount under the Guidelines, the

PSR includes some – but not all – of the amounts encompassed in defendant’s unrelated and

uncharged campaign finance violations from 2007 and 2008. See PSR at p. 45. Except for being

illegal and involving Defendant, the campaign finance violations in 2007 and 2008 have no

commonalities or connection to the 2012-13 bribery charge. The factual stipulations concerning

defendant’s campaign finance violations were included in Defendant’s statement of offense as

information to assist the Court in determining an appropriate sentence under 18 U.S.C. §

3553(a). Such unrelated and uncharged conduct was not intended as – and should not be

considered – conduct for purposes of the advisory Guidelines. Accordingly, the appropriate

specific offense characteristic for purposes of calculating the value of the payment pursuant to §


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2C1.1(b)(2) requires the addition of six levels instead of eight levels, resulting in an adjusted

offense level of 24 and a total offense level of 21.

Cooperation and Government’s Sentencing Recommendation

Based on the factors set forth in § 3553(a), the government recommends that the Court

sentence Defendant to 43 months of incarceration, impose a forfeiture money judgment in the

amount of $35,000, and impose a three-year period of supervised release. The § 3553(a) factors

include the following: (1) the nature and circumstances of the offense and the history and

characteristics of the defendant; (2) the need for the sentence imposed to reflect the seriousness

of the offense, to provide just punishment for the offense, to afford adequate deterrence to

criminal conduct, to protect the public from further crimes of the defendant, and to provide the

defendant with needed correctional treatment; (3) the Sentencing Guidelines and related

Sentencing Commission policy statements; and (4) the need to avoid unwarranted sentence

disparities.

Defendant’s History and Characteristics

Defendant did not face the hardships and personal challenges that many criminal

defendants who come before this Court face in their daily lives. He was not born into poverty or

a broken home, or forced to endure the risk of violence and crime as part of his day-to-day

activities. By all accounts, Defendant had a very fortuitous childhood and family upbringing by

two parents who treated him well, cared for him, and provided him with every opportunity to

succeed. His parents both maintained successful careers and, largely as a result of his family’s

hard work and venerated name, Defendant was afforded advantages and opportunities that few

others have. As noted in the PSR, Defendant “considered himself very fortunate and his family

regularly traveled with his father which exposed them to a variety of experiences.” PSR ¶ 133.


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Defendant, for example, had the benefit of a high school, college, and law school

education. He graduated from Archbishop Carroll High School in the District of Columbia and

Clark University in Worcester, Massachusetts, where he earned a Bachelor of Science degree in

political science. PSR ¶ 149. He later obtained his Juris Doctorate from Widener University

School of Law in May 1991. PSR ¶ 150.

Following his graduation from law school, Defendant obtained employment from law and

lobbying firms in New York and Washington, D.C. PSR ¶¶ 155-58. Defendant had the honor of

serving as a surrogate speaker during the 1992 and 1996 Clinton-Gore presidential campaigns,

representing the candidates in debates and other political functions. PSR ¶ 158.

Despite the advantages and benefits provided by his upbringing, education, and

employment opportunities, an earlier campaign finance violation evidenced a flaw in

Defendant’s character. Defendant served as an officer and shareholder of Dynamic Energy, Inc.,

a natural gas company located in Oklahoma in 1994. PSR ¶ 121. In 1997, Defendant pleaded

guilty to a misdemeanor campaign finance violation related to conduit contributions that

Defendant made to a congressional and senatorial campaign with funds he received from

Dynamic Energy. Id. As noted in the PSR, Defendant made these conduit contributions through

a secretary and two partners at a law firm where he worked in July and September 1994. Id.

Despite his misdemeanor conviction, Defendant maintained his position at a prestigious

law firm, Patton Boggs. He also served as the National Finance Vice Chairman of the

Democratic National Committee from 2000 until 2004. PSR ¶ 152. In addition, he served as a

surrogate speaker for the Obama-Biden presidential campaigns, and has twice been appointed as

a member of the United States Delegation to Africa. Id.


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Such high-level professional positions, however, masked the continuing flaw in

Defendant’s character that had appeared originally with Defendant’s misdemeanor campaign

finance violation in 1997. That is, we know now – and Defendant has admitted – that he

committed additional campaign finance violations during his failed 2007 Ward 4 campaign and

his successful 2008 at-large campaign. Those campaign finance violations took the form of

Defendant agreeing to accept off-the-book campaign contributions from Jeffrey Thompson, who

at the time was the head of the City’s largest government contractor, and filing false reports with

OCF to conceal those contributions.

In November 2008, with the assistance of over $100,000 in off-the-book contributions

from Thompson, Defendant was elected as an At-Large member of the D.C. Council, an elected

position in which he served from January 2009 to January 2013, earning an annual salary of

$128,000. PSR ¶ 153. The elected position provided Defendant with new responsibilities and a

new income source. According to the PSR, Defendant’s 2009 tax return reflects total wages of

$227,287 from his work as a lobbyist and $120,984 from the District of Columbia government,

as well as additional income from legal services. PSR ¶ 155. At the time of the offense conduct,

Defendant was a partner at another lobbying firm in Washington, D.C., earning income that

ranged from $5,000 to $10,000 per month ($60,000 to $120,000 annually), in addition to his

salary from the District of Columbia government. PSR ¶ 152.

Defendant’s Financial Condition at the Time of the Offense

Defendant had many of the qualities of successful politicians. He had a politically

connected and venerated family name, good looks, and a charming personality. Those qualities

helped him to win an at-large seat on the D.C. Council in 2008. Those qualities also helped him


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to obtain the coveted chairmanship of the D.C. Council=s Committee on Economic Development

in 2012. And those qualities put him on the short list of potential Mayoral candidates.

But when it came to the qualities that should matter most for elective office – honesty and

integrity – Michael Brown was simply unfit for the political heights he had reached. A review of

Defendant’s character demonstrates that, in spite of the many advantages and opportunities he

was afforded throughout his life, Defendant nevertheless chose to walk a path marred by

shortcuts, easy money, and corruption. Those character flaws also demonstrate why a substantial

period of incarceration is both necessary and proper.

Understanding what drove Defendant to commit the charged offense, as well as the other

conduct outlined in the Amended Statement of Offense, requires greater insight into what

appears to have been the primary source of Defendant’s character flaw: his fondness for money

and all that it could buy him. From the government=s perspective, there was one thing that

brought balance to Michael Brown=s life more than anything else. It was money. When

Defendant had money, he could put his life in reasonable balance by satisfying his many

creditors, the IRS, and, importantly to him, his fondness for nice things and an affluent image

commensurate with that of high-profile politicians, lobbyists, and business people. The problem,

and it was a problem of his for a long time, was that he never had enough money. And so his life

– personally and professionally – was in a perpetual state of imbalance.

To fully understand the offense conduct, therefore, a certain context concerning

Defendant’s financial condition in the time period leading up to and during the commission of

the offense is required. As outlined above, Defendant had the benefit of obtaining well-paid

employment from various lobbying and law firms following his graduation from law school in

1991. Since 2007, Defendant earned an average annual salary of approximately $180,000 to


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$300,000, comprised of his combined earnings as a lobbyist and as a member of the D.C.

Council. PSR ¶¶ 152-55. According to the PSR, Defendant’s 2011 and 2012 tax returns reflect

an adjusted gross income of $230,898 and $224,627, respectively. PSR ¶ 167.4 As described in

greater detail below, however, even that level of income was not sufficient to support

Defendant’s lifestyle and spending habits.

The government’s investigation revealed that Defendant’s financial condition had been in

dire condition for a long period of time preceding the FBI undercover operation that led to the

offense conduct. As noted in the PSR, the defendant had three federal tax liens filed in 2010,

2011, and 2012, relating to unpaid income taxes in the total amount of $86,656.5 PSR ¶ 166.

Defendant also owes money to banks and other retail organizations in the total amount of

$249,266.6 PSR ¶ 165. Moreover, the house that Defendant purchased with his then-wife in

1997 had three foreclosure notices recorded in 2009. PSR ¶ 162. Although Defendant advised

the United States Probation Office that “his monthly mortgage payment of $7,000 was suspended

pending sale of the property,” PSR ¶ 162, he omits the fact that he failed to make consistent

payments on his mortgage obligation since at least April 2010. See Declaration of Special Agent

Mary Gleason (“Gleason Decl.”) ¶ 5, attached as Exhibit A hereto. Additionally, according to 4 In 2012, according to census data, any household that earned in excess of $146,000 and $191,156 constituted the top 10 percent and 5 percent, respectively, of household incomes in the country. See Income, Poverty, and Health Insurance Coverage in the United States: 2012, Table A-2, Selected Measures of Household Income Dispersion: 1967 to 2012 (available at https://www.census.gov/prod/2013pubs/p60-245.pdf). Assuming that Defendant’s “only” income were his salary as a private lobbyist and as a member of the D.C. Council, his household income would fit comfortably inside the top 5 to 10 percent of household incomes in the country. 5 According to the PSR, the federal tax lien filed on February 24, 2011, in the amount of $13,773, was released on June 14, 2011. PSR ¶ 166. 6 Based on the figures provided in the PSR, it appears that the correct total amount owed is $248,924. PSR ¶ 165.


https://www.census.gov/prod/2013pubs/p60-245.pdf

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records relating to Defendant’s mortgage, the outstanding balance on his loan, as of May 2012,

was approximately $1.46 million, including the payment amount, late fees, and other fees. Id.

Further, Defendant was delinquent in making payments for his 2008 Jeep Commander

automotive loan. Gleason Decl. ¶ 6. According to records, a balance of $23,088 was

outstanding as of April 2012. Id. As noted in the PSR, Defendant also was sued three times for

the late payment of rent on an apartment he rented in Northwest Washington, D.C. PSR ¶ 163.

The failures and dysfunction in Defendant’s personal finances raise three significant

questions. First, if Defendant was not using the money earned by his more than $200,000 annual

salary to pay his taxes, mortgage, or creditors, what was he doing with the money that he earned?

Second, if Defendant was not paying out those hefty expenses, why did he need even more

money? Finally, from what other sources did Defendant obtain money to support his

unaffordable lifestyle? Each of those questions will be addressed in turn.

Defendant’s Spending

As part of its investigation, the government obtained evidence relating to Defendant’s

personal finances for the last several years. Although largely unknown to the government when

it initiated the instant investigation and made the first payment to Defendant through the

undercover agent, it subsequently became clear that the financial pressure placed on Defendant

was overwhelming. Without question, this financial pressure largely resulted from Defendant’s

desire to live his life surrounded by finer amenities and luxuries such as an expensive golf course

membership, rent for a high-end apartment, travel, hotel stays, and purchases at high-end retail

stores. Gleason Decl. ¶ 7. In addition to his own household expenses, the subsequent

investigation revealed that Defendant incurred expenses on behalf of others relating to rent and

mortgage payments, food expenses, health care expenses, and educational costs. Id. Those


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financial pressures, coupled with the constant shadow of multiple looming creditors, easily

allowed Defendant’s monthly spending to far exceed his monthly income. Id.

Defendant’s Need for More Money

The picture of Defendant’s finances illustrated an individual operating at a loss on an

almost monthly basis. Driven by a need to satisfy his many creditors, dependents, and the IRS,

as well as by his fondness for nice things, Defendant was desperate to find a way to fund his

lifestyle and attempt to maintain balance in his personal finances. As described in the Amended

Statement of Offense, Defendant chose to step across a line by accepting a bribe as a means of

obtaining the money that he so desperately needed.

Other Sources of Money

By virtue of his family, Defendant was afforded resources well beyond the income that

he earned and – for a time – he used that as a means and source of money as well. In particular,

based on the government’s investigation, Defendant obtained large sums of money from the

brokerage account of a close relative. Gleason Decl. ¶ 8. Specifically, according to financial

records, between approximately July 2011 and May 2012, there were multiple payments made to

Defendant’s American Express account from the relative’s brokerage account, totaling at least

$140,000. Id. Defendant and his relative maintain the funds were loaned to Defendant.

Beginning in May 2012, however, Defendant was no longer able to access the funds

belonging to this particular close relative. Id. With no other additional sources of money to fund

his lifestyle and maintain the outward appearances of an affluent politician and businessman, it

turned out that Defendant’s need for money had grown greater and greater by the day. By the

time Defendant met with the undercover agent on July 11, 2012, Defendant was delinquent on

his mortgage and car loan, behind on his taxes, and without available credit lines. Over the


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course of the months that followed, as the financial pressure on Defendant continued to grow

greater, Defendant continuously sought additional cash payments from UCE-1 and UCE-2,

which he often referred to as a “piece” or a “piece of the piece,” in exchange for the official acts

he performed.

The Nature and Circumstances of the Offense

At the time of the offense conduct, Defendant appeared to be driven by a sense of

entitlement and rationalization that his conduct was acceptable. What was made unmistakable to

him, however, was the simple fact that the government contractors with whom Defendant

believed he was dealing (i.e., UCE-1 and UCE-2) had a corrupt purpose in mind. Despite

Defendant’s multiple attempts during his conversations with the undercover agents to minimize

and mischaracterize the cash payments as a “loan” and to suggest that “one thing has nothing to

do with the other,” the corrupt intentions of the people from whom he was receiving the bribe

payment were crystal clear. As UCE-2 explained to Defendant during a call on November 26,

2012, “I'm not a bank – whether it’s a loan, whether you’re paying me back, or whether I'm

giving it to you – really to me, that's miniscule. But, the thing is – I loaned it, gave it, or

whatever it is, in an effort to get some access.” Amended Statement of Offense ¶ 35. UCE-2

also added that the cash payments made to Defendant were “linked together” with the access and

assistance that Defendant was providing. Id. Despite being told explicitly by the undercover

agent that the payments were linked to official acts, Defendant continued to accept payments

from the agents posing as businessmen.

Defendant acknowledged the connection between the payment and his official acts during

a call with Person A on December 20, 2012, when Defendant stated that he needed to see UCE-1

for another payment (i.e., “the other piece”), explaining very clearly, “[B]ecause I did my part.”


20

Amended Statement of Offense ¶ 51. Defendant expanded on this entitlement to the money the

following day, in another call with Person A. During that call, Defendant explained

[T]hese are important people, and there is certainly a way they can equate, but when people hire lobbyists to do stuff – you know, this shit ain’t – no, it’s not cheap to get people on top of the pile. I can’t – you know, shit that’s not my fault that’s how the process works. The process is what it is, but they are way ahead of the curve. Way ahead! I mean, you probably could count on one hand how many applicants get to talk to the Director – and meet the Director.

Amended Statement of Offense ¶ 54. In this way, Defendant committed one of the gravest acts

for an elected public official – he sold himself and his office for personal gain. In so doing,

Defendant betrayed the trust of every citizen of the District of Columbia and, in particular, all of

the voters who entrusted him with their vote and support.

Defendant also had corrupt purposes in mind in 2007 and 2008, when he accepted “off-

the-books” campaign contributions from Jeffrey Thompson, knowing that those payments would

not be disclosed to OCF. As outlined in the Amended Statement of Offense and Other Conduct,

Defendant accepted $20,000 in unlawful campaign contributions in 2007 and $127,000 in

unlawful, in-kind contributions in 2008. One of the payments in 2008 consisted of a $44,150

check that Defendant cashed at the bank on the day prior to the election. There can be no

material doubt that, as Defendant walked the streets of the District of Columbia with

approximately $40,000 in cash in his pocket, he knew and understood that what he was doing

was wrong.

Elected officials in the District of Columbia are bestowed an honor and a privilege by the

voters who entrust them with the care of their City. They are entrusted, among other things, to

ensure that the smallest and poorest of their constituents are treated as fairly and properly as the

largest and most wealthy. They are entrusted to demonstrate, as true leaders, that they play by


21

the rules. Defendant’s repeated and willful participation in a “pay to play” system erodes the

public’s confidence in the governmental process, the political process, and its elected

representatives. Defendant has shown, through his acceptance of a $55,000 bribe payment in

2012, his acceptance of nearly $150,000 in “off-the-books” campaign contributions in 2007 and

2008, and his campaign finance violation dating back to 1997, that he is either unwilling or

incapable of playing by the rules. Instead, his preferred path involves shortcuts and easy avenues

of fast cash.

Seriousness of the Offense; Punishment; and Deterrence

The seriousness of this offense cannot be overstated. Defendant’s acceptance of a

$55,000 bribe payment was an offense driven by greed, entitlement, and self-interest. Through

his conduct, Defendant evidenced disrespect for the law and disregard for the public office that

he held and the people he had sworn to represent in office. When viewed in the context of the

illegal campaign finance conduct in which Defendant engaged in 1994, 2007, and 2008, the

offense conduct is all the more serious and disturbing. As such, the sentence the Court imposes

should seek to: 1) deter others from engaging in similar conduct that might further undermine the

integrity of the system; 2) provide confidence that public officials will be dealt with harshly if

they sell their political office; and 3) clearly demonstrate that the culture of “pay to play” and

“business as usual” will not be tolerated.

A sentence of 43 months of incarceration also will serve as an appropriate punishment for

Defendant, who has a prior conviction relating to campaign finance violations. Interestingly, at

the time of sentencing in that matter, Defendant’s counsel submitted a sentencing memorandum

on his behalf noting that the letters of support submitted therewith should “give the Court

confidence that Mr. Brown will not repeat the mistakes that gave rise to this offense and that


22

there is no need or basis for requiring any conditions other than that he not break the law.”

Defendant’s Memorandum in Aid of Sentencing in United States v. Michael A. Brown, 97-cr-

336, attached hereto as Exhibit B, at 2. Not only did Defendant “repeat the mistakes” of his prior

campaign finance conviction in 2007 and 2008, he also advanced to public office and then sold

that office in exchange for $55,000 in bribe money. Indeed, whatever “confidence” that may

have existed at the time of Defendant’s previous sentencing has been shattered by repeated

criminal and corrupt conduct. In this instance, a harsh punishment is required to address

Defendant’s criminal behavior.

Sentencing Guidelines and Unwarranted Sentence Disparities

Consistent with the nature and circumstances of this offense and its seriousness,

Defendant’s offense level calls for a significant period of incarceration. When one compares the

government’s recommended sentence to the sentences imposed on similarly situated public

officials who accepted similar types of bribe payments, it becomes clear that the recommended

sentence of 43 months of incarceration in this case is warranted and appropriate:

• United States v. Fitzroy Salesman, 467 Fed. Appx. 835 (11th Cir. 2012) (unpublished opinion) – an elected city commissioner from Miramar, Florida was convicted at trial of accepting bribes relating to programs receiving federal funds (18 U.S.C. § 666) and attempted extortion under color of official right. The defendant accepted $3,430 in bribe payments from undercover FBI agents in exchange for assistance with government contracts over the course of a 2-3 year investigation. Although the bribe payments totaled $3,430, the district court’s guidelines calculation accounted for the total benefit received by the undercover company, which totaled approximately $22,000 in profit, resulting in a total offense level of 24, and a guidelines range of 51-63 months of incarceration. He was sentenced to 51 months of incarceration.

• United States v. Terry Spicer, 11-cr-186 (MHT-WC) (M.D. Ala. 2012) – an elected member of the Alabama House of Representatives pleaded guilty to one count of accepting bribes relating to programs receiving federal funds (18 U.S.C. § 666). The defendant accepted in excess of $70,000 in bribe payments from two businessmen in exchange for official acts over the course of three years. He was


23

sentenced to 57 months of incarceration, which was at the low-end of the advisory Guidelines range of 57-71 months of incarceration.

• United States v. Jack B. Johnson, 11-cr-0075 (PJM) (ECF No. 50) (D. Md.) – a county executive from Prince George’s County, Maryland pleaded guilty to extortion and witness/evidence tampering relating to a conspiracy in which the defendant accepted as much as $1 million in bribe payments. He was sentenced to 87 months of incarceration, a fine of $100,000, and forfeiture of $78,000 and an antique car. See also Jack Johnson, former Prince George’s Exec, Sentenced to 7 Years (available at www.washingtonpost.com/local/former-pr-georges-exec-jack-b-johnson-is-sentenced-to-7-years/2011/12/01/gIQAKa7iZO_story.html).

Defendant’s Cooperation

Defendant has provided substantial assistance in the investigation and prosecution of

others. As discussed further below, however, the government is not moving for a downward

departure under § 5K1.1 of the Guidelines because of its concerns that Defendant was not

entirely candid during debriefings with law enforcement agents. Accordingly, in the

government’s view, a departure below the applicable Guidelines range is not warranted for

Defendant’s cooperation and substantial assistance.

Defendant’s cooperation related to the following subject matters: (i) information

concerning the investigation of Jeffrey Thompson, identified as “Co-Conspirator 1” in the

Amended Statement of Offense and Other Conduct; (ii) cooperative steps taken by Defendant as

part of his cooperation in non-public criminal investigations, including his withdrawal from the

special election race for the At-Large seat on the D.C. Council in April 2013;7 and (iii)

information and assistance concerning the investigation of Hakim Sutton, Defendant’s former

campaign manager, who was recently indicted for allegedly stealing approximately $114,000

from Defendant’s campaign account in 2011-2012. Each of those areas will be addressed below. 7 Additional information concerning Defendant’s cooperation in non-public law enforcement activities are set forth in a sealed addendum the Government will be filing concurrently with the instant Memorandum in Aid of Sentencing.


http://www.washingtonpost.com/local/former-pr-georges-exec-jack-b-johnson-is-sentenced-to-7-years/2011/12/01/gIQAKa7iZO_story.html

http://www.washingtonpost.com/local/former-pr-georges-exec-jack-b-johnson-is-sentenced-to-7-years/2011/12/01/gIQAKa7iZO_story.html

24

Jeffrey Thompson Investigation

Defendant was interviewed by law enforcement on two occasions, during which he provided

information relating to “off-the-books” campaign contributions that he received from Jeffrey

Thompson for Defendant’s 2007 and 2008 campaigns for D.C. Council.

In his initial debriefing on May 14, 2013, Defendant provided information consistent with

what is contained in the original Statement of Offense and Other Conduct (ECF No. 9, at 28-31.) It

bears noting that, prior to Defendant’s initial debriefing, the government’s investigation already had

uncovered the two $10,000 wire transfers that Defendant received in April and May 2007. These

transactions also had been corroborated by another witness. During his initial debriefing,

Defendant acknowledged the wire payments and provided previously unknown details with respect

to the manner in which they originated from Thompson.

As the government’s investigation relating to Jeffrey Thompson continued, however,

evidence was uncovered relating to additional payments that Thompson made in relation to

Defendant’s 2008 campaign for the At-Large Seat on the D.C. Council, none of which had been

disclosed by Defendant during his initial debriefing in May 2013. Defendant acknowledged

these additional payments from Thompson only after the evidence had been discovered by the

government. Defendant was subsequently interviewed by law enforcement a second time on

January 14, 2014, during which he provided the details relating to these payments, which are

contained in the Amended Statement of Offense and Other Conduct (ECF No. 25-3, at 31-34.)

In light of the similarities between the circumstances and individuals involved in the

2007 and 2008 payments, it is hard to imagine that Defendant simply did not recall the criminal

conduct from 2008 at the time of his initial debriefing. It appears far more likely that Defendant

simply did not want to disclose information relating to issues about which he did not believe the


25

government already had corroborative evidence, particularly since such information exposed

Defendant to additional criminal charges, brought more personal shame to him, and tainted the

only City-wide election Defendant ever won. When confronted with the corroborative evidence,

however, Defendant acknowledged the additional misconduct.

As a consequence of Defendant’s lack of candor and incomplete disclosure, Defendant

agreed to enter a revised plea agreement that raised the Rule 11(c)(1)(C) cap from 37 months to

43 months incarceration, and in exchange, the government agreed not to charge Defendant

separately for the misconduct relating to the 2008 campaign. In addition, the parties also agreed

to enter a revised statement of offense that included details relating to the payments Defendant

received from Thompson in 2008. The parties filed a Joint Motion to Amend Plea Agreement

and Statement of Offense with the Court on February 6, 2014, and attached a copy of the revised

plea agreement and revised statement of offense. Based on Defendant’s lack of candor and

incomplete disclosure concerning the 2008 payments, the government also has decided not to

move for a downward departure under § 5K1.1 of the Guidelines.

After the parties filed the joint motion and revised plea papers with the Court, Jeffrey

Thompson entered a guilty plea on March 10, 2014. See United States v. Jeffrey Thompson, 14-

cr-00049 (CKK). As part of his plea, Thompson agreed to a Statement of Offense that included

details relating to yet other alleged payments that he authorized for Defendant’s benefit, which

related to Defendant’s unsuccessful campaign for Mayor in September 2006. Thompson

Statement of Offense, 14-cr-00049 ECF No. 6 ¶¶ 44-51. The government’s investigation with

respect to these alleged payments is ongoing, as is Defendant’s cooperation. The government

does not intend to offer any such evidence relating to the alleged September 2006 payments for

purposes of increasing or decreasing the government’s recommended sentence in this case.


26

Agreement regarding April 2013 Campaign

As part of his cooperation, Defendant also agreed to withdraw from the special election

race for the At-Large seat on the D.C. Council in April 2013. This allowed Defendant an

opportunity to cooperate with the government’s investigation relating to Jeffrey Thompson, as

described above.

Assistance in the Hakim Sutton Investigation

Defendant also has been providing assistance with respect to an additional investigation

relating to the alleged theft of $114,000 from his 2012 campaign for D.C. Council by the former

treasurer of the campaign, Hakim Sutton. Defendant assisted law enforcement during the initial

part of the Sutton investigation and provided an interview in October 2012, which was before

Defendant was made aware of the undercover operation. During Defendant’s second debriefing

session on January 14, 2014, which was after Defendant agreed to plead guilty and cooperate

with the government, Defendant answered additional questions relating to the Sutton

investigation, and facilitated the cooperation of at least one other individual formerly associated

with Defendant’s campaign as part of the Sutton investigation. Sutton was indicted by a federal

grand jury in February 2014, and the case is currently pending. See United States v. Hakim

Sutton, 14-cr-00032 (RJL).

Additional Areas of Cooperation Not Rising to the Level of Substantial Assistance

Defendant also provided investigators and prosecutors with information on other matters

under investigation. Although Defendant attempted to be helpful in discussing his knowledge of

these and other matters, Defendant’s information did not rise to the level of substantial

assistance. Nevertheless, to the extent that the Court wants to be informed about those other

areas, the government will make such information available to the Court.


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Government’s Recommendation with Respect to Sentencing

In the government’s view, a downward departure from the applicable Guidelines range is

not appropriate in light of Defendant’s lack of candor during his debriefing sessions and his

failure to make a full disclosure regarding all payments received from Jeffrey Thompson. As

described above, Defendant’s plea agreement and statement of offense were amended

specifically to account for his lack of candor and completeness in cooperating with law

enforcement, resulting in an increase to the agreed-upon cap from 37 months to 43 months

incarceration. As consideration for the increase in the cap, the government agreed not to

separately charge Defendant for the criminal conduct related to the payments he received from

Thompson in 2008. Consistent with the revised plea agreement and in light of Defendant’s

egregious offense conduct and shortcomings in cooperation, the government respectfully submits

that a sentence of 43 months of incarceration is appropriate.

Accordingly, in light of the § 3553(a) factors, the United States respectfully requests that

this Court accept the Amended Plea Agreement, and recommends that this Court sentence

Defendant to 43 months of incarceration, impose a forfeiture money judgment in the amount of

$35,000,8 and impose a three-year period of supervised release.

8 Defendant’s forfeiture obligation in the amount of $35,000 was satisfied on July 21,

2013.


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Respectfully submitted,

RONALD C. MACHEN JR. UNITED STATES ATTORNEY D.C. Bar No. 447-889

/s/ Michael K. Atkinson David A. Last Anthony Saler D.C. Bar No. 430517 (Atkinson) D.C. Bar No. 476335 (Last) Assistant United States Attorneys 555 4th Street, N.W. Washington, D.C. 20530 (202) 252-7914 (Atkinson) (202) 252-7020 (Last)


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