Attorneys for state Sen. Nathaniel T. Oaks are seeking the dismissal of six counts of a federal indictment against him, claiming his request the Maryland Department of Legislative Services draft a bond bill in the fall of 2016 was not an official act.
U.S. District Judge Richard D. Bennett on Friday called the argument “creative” after pressing Rebecca S. Talbott, a federal public defender representing Oaks, to confirm that was her position.
“Where you’re drawing the line is it has to be on the floor of the General Assembly for a vote to be an official act,” Bennett said.
The judge did not rule Friday but said a written opinion will be issued by Tuesday.
Oaks, D-Baltimore city, is accused of wire fraud, accepting illegal payments and accepting bribes in exchange for using is position to influence business matters.
The wire fraud charges are centered on allegations Oaks requested the bond bill to help finance a phony development project, although the legislation was never introduced in Annapolis. Talbott said recent case law on what constitutes an official act makes it clear that just having legislation drafted with no further action is not enough.
“The act is typing a document,” Talbott said. “Anyone can type a document. It happens to say ‘bond bill’ at the top.”
Talbott also equated asking DLS to draft a bill to having a staffer or some other subordinate do so, which is not an official act based on a Supreme Court decision in 2016 ruling overturning former Virginia Gov. Robert F. McDonnell’s corruption conviction.
McDonnell’s case turned on jury instructions defining what constitutes an “official act.” He was originally convicted for accepting luxury gifts and loans from a wealthy businessman in exchange for promoting a dietary supplement, but the Supreme Court held that scheduling meetings and hosting events were not official acts.
Bennett pointed out several times the McDonnell case did not involve the sufficiency of the indictment against him or actions similar to what is alleged in Oaks’ case.
“McDonnell didn’t come anywhere close to the issue of drafting legislation,” Bennett said.
He also pointed to language in the Supreme Court’s opinion about making a decision or action on a “qualifying step” toward an official act and questioned whether having DLS prepare draft legislation could qualify.
Assistant U.S. Attorney Kathleen Gavin said having legislation drafted is an official act only a member of the General Assembly could perform and a necessary one if such legislation is to be introduced later.
“It goes to the very heart of what his job is as a legislator,” she said.
Oaks also has been charged with five counts of violating the federal Travel Act for engaging in an arrangement to receive cash bribe payments in violation of Maryland’s bribery statute.
The Travel Act counts require an underlying unlawful activity, including bribery, as alleged in Oaks’ case. Maryland’s bribery statute, which has been interpreted in harmony with the federal statute, requires an official be bribed to influence performance of an official duty.
But Talbott similarly argued that the indictment does not allege an official act or duty performed by Oaks.
Prior to hearing arguments on the motions, Bennett discussed the status of Oaks’ entrapment defense, made in a since-withdrawn motion seeking a jury instruction on the issue.
Oaks alleges the FBI pressured a confidential source into providing his name on a list of officials that may be susceptible to bribery and then used tactics in the investigation that “went beyond mere solicitation, and crossed over into inducement” as part of a multi-year effort to persuade Oaks to commit the alleged offense.
Oaks withdrew the motion Wednesday.
“It does not mean that Sen. Oaks has waived his right to seek that instruction at a later date,” Bennett said.
Bennett asked Oaks’ attorneys to let him know before the trial begins in April how they plan to deal with the evidence of alleged entrapment and when the issue might be raised.
The case is United States of America v. Nathaniel Thomas Oaks, 1:17-cr-288.