Badge Of Dishonor

Disbarment should be imposed for an attorney’s criminal conviction of a crime of moral turpitude, according to a  report and recommendation of the District of Columbia Board on Professional Responsibility.

The analysis of moral turpitude per se was whether the offense involves a bribe or a gratuity

Although this case presents an unusual posture due to the Supreme Courts clarification of the elements of a § 666 offense between the plea and the conviction, the Board frequently considers criminal statutes that cover a range of criminal conduct, some of which constitutes moral turpitude per se and some of which do not. In those cases, the Board may review the underlying documents from the criminal case to determine which portion of the statute was violated. See In re Lobar, 632 A.2d 110, 111 (D.C. 1993) (per curiam) (examining charging documents to determine that conviction was for conspiracy to defraud the United States). Here, we have reviewed the record, and Respondents filings with the Board to determine if there is any evidence that Respondent pled guilty to paying an illegal gratuity, rather than paying a bribe. We find none.

Respondent did not argue to the Board that he pled guilty to paying a gratuity. He did not seek to withdraw his guilty plea following Synder, which one would have expected if he wished to preserve a contention that he only paid a gratuity and not a bribe. See generally Boursley v. United States, 523 U.S. 614, 617-19 (1998) (permitting a defendant to withdraw a guilty plea when, while the appeal was pending, the Supreme Court issued an opinion changing the elements of the applicable criminal statute, meaning the defendant had been misinformed as to the true nature of the charge against him). This is not surprising. Respondent was convicted in Virginia, within the jurisdiction of the Fourth Circuit. That court had not ruled on whether § 666(a)(2) covered gratuities, but in United States v. Lindberg, 39 F.4th 151 (4th Cir. 2022) it wrote it was skeptical of that argument because the statute s intent element matches that of bribery statutes: Including gratuities within the ambit of § 666(a)(2) seems, therefore, at odds with the textual requirement that one must act corruptly to run afoul of the statute. 39 F.4th at 171 n.17. United States v. Jennings, 160 F.3d 1006 (4th Cir. 1998), discussed in Lindberg, held that the trial judge erred in giving a jury instruction for § 666 that did not correctly define corrupt intent by failing to include an intent to induce a specific act, i.e., a quid pro quo. 160 F.3d at 1020-21. A gratuity does not include that element: In sum, the line between a payment made corruptly . . . with intent to influence an official act and a payment made for or because of an official act is the same line that separates a bribe from an illegal gratuity…

Summary disposition if not moral turpitude per se

The underlying criminal case arises from Respondent s payment of $20,000 to Culpeper County Sheriff Scott Jenkins, in connection with being sworn as an Auxiliary Deputy Sheriff, and receiving a badge and ID card evidencing that status. ODC Statement, Attachment C (Attachment C) at 1, 3-4; Attachment E at 2. He did so under a program initiated by Sheriff Jenkins. Attachment C at 1, 3.

The FBI and the Department of Justice Public Integrity Section investigated the Auxiliary Deputy Program. On June 28, 2023, a federal grand jury returned a 16-count indictment in the Western District of Virginia, charging Sheriff Jenkins, Respondent, and two other program participants with 18 U.S.C. §§ 371 (conspiracy to defraud the United States, in that Culpeper County and the State of Virginia receive federal funds), 1341 (mail fraud), 1343 (wire fraud), 1346 (honest services fraud), and 666 (unlawful payments to persons associated with federally-funded entities, including states and counties). Attachment C at 1. Not all defendants were named in all counts.

Why he wanted a stinking badge

On two occasions, Respondent showed the deputy badge while requesting access to the TSA Pre-Check line at an airport, despite the fact that his boarding passes did not indicate that he was authorized to access the line. Attachment E at 2-3. On another occasion, Respondent showed the badge to a police officer while driving on the shoulder of a road to bypass a traffic jam. Attachment E at 3. On another occasion, Respondent requested access to a Covid-19 vaccine before the general public based on his purported status as a law enforcement officer or first responder, though he did not ultimately receive an early vaccination. Id. Finally, when contesting a parking ticket, Respondent told the officer who issued the ticket that he was a deputy sheriff. Id.

Respondent later attempted to assist another person in obtaining a badge in exchange for a payment to the Sheriff by introducing that person to the Auxiliary Deputy of the sheriff s office, who had facilitated his own acquisition of the badge. Attachment E at 3; see id. at 1-2.

As part of his guilty plea, Respondent acknowledged that the foregoing facts were true and accurate. Attachment E at 4.

Bottom line

For the foregoing reasons, the Board recommends that the Court disbar Respondent pursuant to D.C. Code § 11-2503(a) based on his conviction of a crime of moral turpitude per se. In the alternative, after considering the facts Respondent admitted along with his guilty plea and the additional facts and circumstances he would present to a hearing committee, viewed in the light most favorable to him, the Board would still recommend his disbarment.

(Mike Frisch)