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Sen. Bob Menendez’s Latest Effort to Have Case Dismissed Delayed Until September 6 Trial

U.S. District Judge William H. Walls delayed ruling on a motion to dismiss the public corruption charges against Sen. Bob Menendez (D-NJ) until the trial of the senator and his co-defendant, Dr. Salomon Melgen, begins in a federal courtroom in New Jersey on September 6.

Melgen was convicted in April on 67 felony counts of Medicare fraud, many of which are related to illegal billing practices. The public corruption charges brought against Menendez and Melgen by the Department of Justice allege that Menendez engaged in official acts to directly aid Melgen in his efforts to receive payments for the same sort of illegal billing practices for which he was convicted.

In return for his personal lobbying efforts on behalf of Melgen, the federal government alleges Menendez received $58,000 in free travel to the Dominican Republic and Florida (for which Menendez subsequently reimbursed Melgen) and nearly $1 million in direct and indirect campaign contributions to his re-election campaign.

“In a motion filed July 18, attorneys for Menendez sought to dismiss the charges under a U.S. Supreme Court decision that overturned the conviction of former Virginia governor Robert McDonnell in a similar case, narrowing the definition of ‘official acts’  required under the federal bribery statute,” NJ.com reported:

The lawyers argued much of the current superseding indictment describes actions by Menendez’s staffers, rather than the senator himself, “and many involve trivial functions rather than official acts.”

“Defendants believe the superseding indictment is hopelessly vague and defective if a jury can find that Senator Menendez took an official act based on everything charged in the ‘official acts’ section of the superseding indictment, ranging from acts taken by others or acts as innocent as meeting friends of Dr. Melgen, and there is no meaningful way to prepare for a trial involving what breaks down into literally hundreds of individual acts by the government’s count,” the attorneys wrote.

Prosecutors allege the doctor provided Menendez with benefits ranging from luxury hotel stays to campaign donations in exchange for the senator lobbying government officials regarding a Medicare dispute and Melgen’s efforts to obtain a port security contract in the Dominican Republic, among other matters.

A Supreme Court case decided last year, McDonnell v. United States, established the standard of “official act.” As Scotus Blog described the McDonnell v. United States opinion announced on June 27, 2016:

Holding: The federal bribery statute, 18 U.S.C. § 201, makes it a crime for a public official to “receive or accept anything of value” in exchange for being “influenced in the performance of any official act.” An “official act” is a decision or action on a “question, matter, cause, suit, proceeding or controversy”; that question or matter must involve a formal exercise of governmental power, and must also be something specific and focused that is “pending” or “may by law be brought” before a public official. To qualify as an “official act,” the public official must make a decision to take an action on that question or matter, or agree to do so. Setting up a meeting, talking to another official, or organizing an event — without more — does not fit that definition of “official act.” Because jury instructions in the case of former Virginia governor Bob McDonnell were erroneous, and those errors are not harmless beyond a reasonable doubt, McDonnell’s convictions are vacated.

Judgment: Vacated and remanded, 8-0, in an opinion by Chief Justice Roberts on June 27, 2016.

The Supreme Court decision reversed a 2014 federal conviction of McDonnell on 11 counts of public corruption, when the jury concluded that he and his wife had “perform[ed] or promise[d] to perform ‘official acts’ for Williams [a businessman with a line of vitamin products] in exchange for $177,000 in gifts and loans,” the Washington Post reported:

Those acts, they said, came in the form of meetings McDonnell arranged for Williams with state officials, a luncheon Williams was allowed to throw at the governor’s mansion to help launch a product he was trying to sell, and a guest list Williams was allowed to shape at another mansion reception meant for health-care leaders.

Defense attorneys argued otherwise, saying there was no evidence that McDonnell even knew what Williams wanted. And what he did want — state-funded studies of his company’s dietary supplement, Anatabloc — he never got, defense attorneys stressed.

“Whether the acts alleged in the superseding indictment satisfy the definition of an ‘official act’ under McDonnell is a factual determination that cannot be resolved before the government has the opportunity to present evidence at trial,” Judge Walls wrote in his court order announced on Wednesday, NJ.com reported:

Even if the judge did determine some of Menendez’s actions fell outside the definition, he could still allow the case to go to the jury.

“Under McDonnell, evidence of non-official acts may still be relevant evidence in the prosecution of a federal bribery claim,” Walls wrote.

As Breitbart News reported, Menendez’s conduct in directly lobbying then-Secretary of Health and Human Services (HHS) Kathleen Sebelius on behalf of Melgen’s spurious and rejected $9 million billing claim for the period between 2005 and 2008 (prior to the timeframe of the felony crimes of which he was convicted in his trial)  appears to be significantly different than the acts for which McDonnell was convicted, which conviction was overturned by the Supreme Court ruling.

As Breitbart News reported, Menendez “met with Centers for Medicare and Medicaid Services (CMS) Director Marilyn Tavenner on June 7, 2012, in an apparent attempt to persuade her that his close friend and major donor, Dr. Salomon Melgen, did not owe the federal government $9 million for Medicare overbilling”:

It was a pure New Jersey-style political power play on Menendez’s part, since the CMS had carefully documented Melgen’s egregious violation of clear and widely understood billing practices.

Tavenner was unpersuaded by Menendez’s pitch. He reportedly left the meeting frustrated he had not been able to deliver a solution to his friend’s problems with the government.

Rebuffed by Tavenner, “Menendez decided to turn up the political pressure by speaking to [her] boss, Secretary of Health and Human Services (HHS) Kathleen Sebelius”:

The very next day — June 8, 2012 — Melgen (through Vitreo-Retinal Consultants, the company HHS said overbilled the federal government by $9 million) contributed $300,000 to the Senate Majority PAC, a super PAC closely aligned with Senator Harry Reid (D-NV). Reid was the Majority Leader then and is currently the Minority Leader. Founded in 2011, the super PAC is co-chaired by two former top staffers from Reid’s office.

Ironically, the funds for this generous contribution may well have come from the $9 million CMS says the federal government overpaid Melgen because of his overbilling. CMS has asked for Melgen to repay that money, but Melgen apparently has other uses for it and is fighting desperately to hang on to it.

Shortly thereafter, Menendez began pressuring Reid to go over Tavenner’s head and set up a meeting with Sebelius where he could again make the case that his friend really didn’t owe the federal government that $9 million CMS said he had overbilled.

The lobbying of Reid by Menendez and his friend Melgen soon became very personal.

“Melgen’s private jet flew from Florida to Reagan National Airport in Washington, D.C. on June 17, 2012, presumably carrying Melgen. The next day, on June 18, Melgen’s private jet flew Reid from Reagan National Airport in Washington, D.C. to Boston and back. It is unclear if Melgen accompanied Reid on that flight, but if he did, the two would have had plenty of time to discuss Melgen’s Medicare overbilling problems, his potential future political donations to Reid’s Senate Majority Super PAC, and what Reid might be willing to do to advance his business interests,” Breitbart News reported:

On June 28, 2012, Melgen’s Vitreo-Retinal Consultants contributed an additional $100,000 to Reid’s Super Majority PAC.

The next week, on July 2, 2012, Menendez spoke on the phone with CMS’s Tavenner, but made no progress in ending Melgen’s $9 million overbilling problem.

Over the next several weeks, Menendez succeeded in persuading Reid to convince Secretary Sebelius to meet with him in person. Reid seems to have summoned Sebelius to Capitol Hill for a meeting with Menendez that he would host in his Senate Majority Leader’s offices.

“In August 2012, Sebelius had been summoned to Capitol Hill for a private meeting with Menendez in the office of Sen. Harry Reid (D-Nev.), then the Senate majority leader,” Politico reported in March 2015, one month before Menendez and Melgen were indicted on public corruption charges. It added, “According to Sebelius, the topic of the meeting was a multimillion dollar billing dispute between the Centers for Medicare and Medicaid Services and a company run by Melgen, a Florida ophthalmologist.”

A spokesperson for Mendendez at the time told Politico, “We have said from the beginning that our office made inquiries regarding the ambiguities in CMS multi-dosing instructions and regulations and the public policy considerations of multi-dosing, continuing, “That was precisely what Sen. Menendez discussed with the secretary in 2012. It is also our understanding that the DOJ is fully aware that the senator did not mention Melgen during their meeting”:

But Sebelius recalled that she had been told the purpose of the meeting was to discuss “billing issues with Dr. Melgen,” raising red flags that prompted her to take the matter to the HHS counsel’s office before sitting down with the senator.

Sebelius said she was “concerned that I knew enough about the investigation” into Menendez’s actions that she “didn’t want to open the door to any inappropriate discussion” during their meeting. But HHS attorneys assured her that she could meet with Menendez, and she said she told the senator the dispute was being handled by an outside administrative review board.

“Sen. Reid did the convening, but he really wasn’t a participant,” she said. “Sen. Menendez laid out concerns of what he thought were rules that had not been fairly or universally applied – that somehow the rules had changed along the way and the kinds of investigation and denial of billing procedures with this case had seemed different than other cases.”

“On October 16, 2012, Melgen’s Vitreo-Retinal Consultants donated another $300,000 to Reid’s Super Majority PAC, bringing the company’s total contributions in 2012 to $700,000. In November 2012, Menendez was easily re-elected to another six-year term in the Senate, defeating his Republican rival by a 58 percent to 39 percent margin, ” Breitbart News reported.

In the end, the Department of Health and Human Services denied Melgen’s appeal on the $9 million improper billing dispute for the 2005 to 2008 period.

Melgen continued those billing practices, however, and that conduct ultimately led to his conviction on the 67 felony counts in April.

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