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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
UNITED STATES OF AMERICA
vs.

Case No.: 4:18-cr-00076-MW-CAS

SCOTT CHARLES MADDOX,
Defendant.
_______________________________________/
DEFENDANT MADDOX'S FIRST MOTION TO DISMISS
COUNTS 1 AND 8-35 OR, IN THE ALTERNATIVE, STRIKE
PORTIONS OF THE INDICTMENT
The Defendant, Scott Maddox, by and through the undersigned counsel,
moves this Honorable Court to dismiss certain counts of the Indictment or, in the
alternative, strike certain material as surplusage. Specifically, Mr. Maddox avers
that Counts 1 and 8-35 of the Indictment do not allege cognizable claims for
"honest services fraud," "extortion," or "Travel Act" violations. Therefore, the
Defendant contends that these particular counts should be dismissed, or the
relevant paragraphs be stricken, under Fed. R. Crim. P. 7(b), Fed. R. Crim. P. 12
and the Due Process Clause of the United States Constitution.

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MEMORANDUM OF LAW
I. Factual Allegations
The Indictment alleges that the two Defendants engaged in a racketeering
conspiracy to engage in "honest services" fraud, Hobbs Act violations, Travel Act
violations, False Statements, Bank Fraud and Federal Income Tax offenses. At this
time, Mr. Maddox is not moving to dismiss the False Statement, Bank Fraud, or
Tax offenses. Instead, this motion is directed to the constitutional and pleading
deficiencies in the allegations related to "honest services" fraud, Hobbs Act claims,
Travel Act claims and the conspiracy.
The Indictment alleges that six companies, described as Company A through
Company F, were involved in distinct events, each of which allegedly constituted
"honest services" fraud or extortion. Although Mr. Maddox challenges all of the
allegations made on these claims with respect to these "companies," each factual
situation is unique. Some of these events are pled with more specificity than others.
Therefore, although Mr. Maddox moves to dismiss Counts 1 and 8-35 in their
entirety, each episode must be separately analyzed to determine if the allegations
for each situation meet the Due Process requirements for these types of allegations.
If any of the allegations related to a particular company are deficient to state a
crime, then, at a minimum, those counts and the associated factual allegations for
such counts should be stricken from the Indictment. Mr. Maddox recognizes that
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he must accept the allegations as true for purposes of a motion to dismiss. Thus,
while the factual allegations are disputed in fact, they are described below as pled
in the Indictment.
Background
The Indictment generally alleges that Defendants Maddox and Carter-Smith
were involved in entities known as Governance, Inc. (Governance) and
Governance Services, LLC (Governance Services). According to Paragraph 1 of
the Indictment, however, it is agreed that Mr. Maddox sold his interest in
Governance, Inc., to Ms. Carter-Smith as of March 12, 2010, while he was not
serving on the City Commission. Mr. Maddox was never a member of Governance
Services, LLC.
As alleged, Mr. Maddox was not on the City Commission for much of the
relevant time period of the Indictment. He was on the City Commission from 1993
through 2003, but no unlawful activity is alleged during that time frame. He then
re-joined the Commission in 2012. During that timeframe, Mr. Maddox was not an
owner, shareholder, member, or affiliate of Governance or Governance Services.
As noted above, the Indictment contains numerous allegations relating to
entities known as Company A through Company F. These allegations are described
below:

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Company A
The Indictment contains allegations of honest services fraud in paragraphs
49-58 with respect to "Company A." Company A is alleged to have hired
Governance at a time when Mr. Maddox was not on the City Commission.
Company A was doing business with the City prior to Mr. Maddox re-joining the
Commission. It is alleged that Mr. Maddox failed to disclose to the City that he had
represented Company A in the past. Yet, there is no allegation that Mr. Maddox
received anything of value in a quid pro quo exchange for any "official act."
Company A was included on a list of ten firms whose contracts were extended by
the City Commission. However, there is no allegation of a quid pro quo payment
in exchange for any vote or official act. There is also no allegation of any kickback
from Company A. Company A stopped using Governance nearly four years prior
to the end of the alleged conspiracy.
Company B
Next, the Indictment alleges in Paragraphs 59-69 that Company B engaged
Governance almost five years after Mr. Maddox had sold his interest in
Governance, Inc., to Ms. Carter-Smith. Paragraph 62 includes a vague allegation
that Ms. Carter-Smith solicited payments for Governance, which she owned, in
exchange for Mr. Maddox's vote "on the ordinance and related issues." There is no
allegation of any contemporaneous "official act" made in direct exchange for such
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payment. Instead, it is alleged that, on March 25, 2015, the Commission simply
voted unanimously to delay a vote on an ordinance. According to Paragraph 67, it
was several months later in July, when the Commission again considered an
amendment to an ordinance, which was approved. The Indictment does not allege
that the vote in July was the result of a direct exchange for any payment. Nothing
in the Indictment suggests any kickback of any City money.
Company C
Paragraphs 70-77 allege that Company C had an agreement with
Governance in 2006, more than six years before Mr. Maddox re-joined the City
Commission. The Indictment alleges a long history of this Company engaging
Governance on an "as needed" basis prior to Mr. Maddox re-joining the City
Commission. Company C already had a seven-year contract with the City well
before Mr. Maddox re-joined the Commission. Paragraph 71 alleges that the City
Commission voted to extend this company's contract with the City for an
additional five years, again before Mr. Maddox re-joined the Commission. There is
no "quid pro quo" alleged with respect to any particular payment in exchange for
any particular official act. There is an allegation that Mr. Maddox's relationship
with Company C was not disclosed. There is an allegation that Mr. Maddox
became involved in helping this constituent reduce (but not avoid) a fine imposed
by the City, but no allegation that any payment or "quid" was made in exchange for
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any official action or "quo." Per the Indictment, Mr. Maddox referred the matter of
the fine to the City Manager.1
Company D - Paragraph 78-86
Paragraphs 78-86 allege that Company D also used Governance. Company
D also began its relationship with Governance while Mr. Maddox was not on the
City Commission. Again without any allegation of a "quid pro quo," there is an
allegation in Paragraph 81 that Mr. Maddox voted against "amendments to a City
administrative policy." The policy is not identified or described with any
particularity. There is no indication that Company D asked Mr. Maddox to do
anything relating to this unspecified City policy. The remainder of the allegations
involve the extension of contracts for "nine firms" including Company D, which
was already "prequalified" to do such work. There is no allegation of any payment
made in a quid pro quo exchange for any vote or any other official act.
Company E
Paragraphs 87-94 involve Company E. Company E also began its
relationship with Governance while Mr. Maddox was not on the City Commission.
While he was on the commission, Mr. Maddox was asked by Company E about
"additional assistance" with "City officials." No specificity is provided on these
allegations and there is certainly no specific "official act" alleged. There is a vague
1

Per the City Charter, Part 1, Subpart A, Section 10, a City Commissioner has no power to give orders to, nor make
demands of, the City Manager. In fact, the Indictment does not allege that Mr. Maddox made any attempt to order
the City Manager on the resolution of this constituent's issue.

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allegation that payments were in "exchange" for an agreement to act "as
opportunities arose," but no allegation of an actual "quid pro quo" payment in
exchange for a specific official act. Instead, the only specific allegations relate to a
constituent who had issues with a fence and reported those issues to Mr. Maddox.
Mr. Maddox in turn contacted the City Manager, who apparently resolved the
issue.2
Person E
Paragraphs 95-100 involve Person E. Person E is alleged to have declined to
hire Governance. However, his project was fully funded by the CRA. Thus, there
was no quid. The CRA funded the project for $1.6 million without any payment in
exchange for any official act. There is no allegation in the Indictment that Mr.
Maddox performed any official act. It is admitted in Paragraph 100 that Mr.
Maddox did not even attend the CRA meeting in which the project was funded.
Company F
Paragraphs 101-116 involve a fictitious organization operated by undercover
federal agents. This fictitious organization was created by the government to entice
public officials into committing crimes. No specific project is ever identified, nor
is any official act identified or alleged. The trip to Las Vegas is not alleged to be a
part of any quid pro quo exchange, kickback or any other federal crime. There is
2

Again, see footnote 1. Mr. Maddox is not alleged to have violated the Charter by ordering the City Manager to
resolve this issue in any particular manner.

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no allegation that the trip was a violation of any bribery statute. Moreover, there is
no allegation of any official action taken on any project, vote, or anything else at
the behest of the fictitious undercover operation.
II. Legal Analysis
A. Honest Services Fraud
Counts 15-26 of the Indictment in this case allege that Mr. Maddox violated
the "honest services" statute, which purports to make it a crime to "deprive another
of the intangible right of honest services." 18 U.S.C. §1346. Mr. Maddox contends
that the "honest services" statute, as applied to the allegations in this Indictment, is
void-for-vagueness. Moreover, Count 1 must also fall, as it alleges, in part, a
conspiracy to commit honest services fraud.
The void-for-vagueness doctrine derives from the protections of the Fifth
Amendment’s Due Process Clause. The doctrine embodies the idea that “a statute
which either forbids or requires the doing of an act in terms so vague that men of
common intelligence must necessarily guess at its meaning and differ as to its
application violates the first essential of due process of law.” Connally v. General
Construction Co., 269 U.S. 385, 391 (1926) (emphasis added). The doctrine has
two principle aims: (1) to ensure fair notice as to what constitutes illicit behavior;
and (2) to prevent the injustice of capricious enforcement.

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The doctrine "requires that a penal statute define the criminal offense with
sufficient definiteness that ordinary people can understand what conduct is
prohibited and in a manner that does not encourage arbitrary and discriminatory
enforcement." Kolender v. Lawson, 461 U.S. 352, 357 (1983); see, e.g., United
States v. Fisher, 289 F.3d 1329, 1333 (11th Cir. 2002). The doctrine enshrines the
notion that “fair warning should be given to the world in language that the common
world will understand, of what the law intends to do if a certain line is passed” and
the idea that a law that does “not provide sufficient minimal standards to guide law
enforcement officers" does not adequately protect against arbitrary enforcement.
See United States v. Aguilar, 515 U.S. 593, 600 (1995) (quoting McBoyle v. United
States, 283 U.S. 25, 27 (1931)); Chicago v. Morales, 527 U.S. 41, 72 (1992)
(Breyer, J., concurring) (quotation omitted). See also Johnson v. United States, 135
S.Ct. 2551 (2015) ("conduct that presents a serious potential risk of physical
injury" is void for vagueness). The question of whether a criminal statute provides
sufficient notice to meet due process requirements is a question of law, not fact.
United States v. Garber, 607 F.2d 92, 110 (5th Cir. 1979).
1. Supreme Court Rejection of "Honest Services" Theory in McNally
The "honest services" statute, 18 U.S.C. §1346, has been the subject of
thorough criticism by the United States Supreme Court. This criticism has been
justified, considering the inherent ambiguity as to what constitutes an "intangible
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right of honest services." Prior to the enactment of this statute, the United States
Supreme Court held in McNally v. United States, 107 S.Ct. 2875 (1987) that
federal fraud statutes could not be used to criminalize behavior on the ambiguous
standard of an intangible right to honest services. The McNally Court held that any
attempt to criminalize honest services fraud on the basis of the general federal
fraud statutes was unconstitutional. The McNally Court also warned that allowing
such a prosecution on vague standards would "involve[] the Federal Government in
setting standards of disclosure and good government for local and state officials."
McNally, 107 S.Ct. at 2882.
2. Section 1346 Enacted but Skilling Strictly Limits its Application
After McNally, Congress enacted 18 U.S.C. §1346 in order to try to salvage
the theory of "honest services fraud." Nevertheless, the revised statute does nothing
to disentangle or even provide guidelines as to "standards" for determining what is
"good government for local and state officials." Therefore, the statute continues to
suffer from federalism concerns. In this case, Mr. Maddox asserts that the counts
alleging honest services should be stricken in their entirety on this general ground,
or alternatively on the more narrow grounds, as applied, which are discussed
below.
After McNally and the enactment of Section 1346, the Supreme Court again
rejected the honest services fraud theory of criminal liability in Skilling v. United
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States, 130 S.Ct. 2896 (2010). In Skilling, the Supreme Court determined that the
attempt in that case to criminalize the deprivation of an "intangible right of honest
services" was still unconstitutional in large measure. Specifically, the Skilling
opinion, authored by Justice Ginsberg, held that it would be unconstitutional to
apply such a vague standard to the defendant in that case. Id. at 2931.
The Skilling Court suggested that the statute should rarely be applied, if at
all. In following the principle of judicial restraint, however, the Court construed the
statute narrowly to apply only to "bribes and kickbacks." Skilling, 130 S.Ct. at
2933; see also Black v. United States, 130 S.Ct. 2963, 2968 (2010) ("We decided
in Skilling that § 1346, properly confined, criminalizes only schemes to defraud
that involve bribes or kickbacks.") Thus, any extension of the honest services
theory beyond this limited core would warrant a void-for-vagueness challenge
under the Constitution.
In Skilling, Justice Scalia wrote a concurring opinion, in which two other
justices joined, concluding that not even bribery or kickback "honest services"
cases could survive the vagueness challenge. Skilling, at 2935. The concurring
opinion and the majority agreed that the conviction should be stricken. However,
the concurrence would have not only struck the Skilling conviction, but also any
other application of the "honest services" statute. The concurrence wrote that while
the majority "strikes a pose of judicial humility in proclaiming that our task is 'not
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to destroy the Act . . . but to construe it,' ante, at 2930 (internal quotations
omitted). But in transforming the prohibition of 'honest services fraud' into a
prohibition of 'bribery and kickbacks' it is wielding a power we long ago abjured:
the power to define federal crimes." Skilling, at 2935 (emphasis added).
Thus, the concurring opinion would have rendered the statute impotent even
as to bribery and kickbacks. The concurrence commented on the wide range of
standards utilized in the pre-McNally era, which attempted to define the "intangible
right" to "honest services" based on such vague notions as "moral uprightness" or
"fair play." Skilling, at 2937. The concurrence noted that the "possibilities range
from any action that is contrary to public policy or otherwise immoral, to only the
disloyalty of a public official or employee to his principal . . .". Skilling, at 2938.
Therefore, the concurrence observed that although it would also have reversed the
conviction, it would have gone farther in concluding that "§1346 provides 'no
ascertainable standard' for the conduct it condemns." Skilling, at 2940.
In any event, the majority in Skilling and the concurring opinion, all agreed
that the defendant, Mr. Skilling, had not engaged in taking bribes or kickbacks, so
the statute was unconstitutional as applied to Mr. Skilling. Setting aside the
compelling concurrence for a moment, it is also clear that the majority went on to
specifically exclude large categories of conduct from the scope of Section 1346. In

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fact, the Court excluded from the scope of the statute some of the very theories
alleged in this case.
For example, in this case, there are allegations of self-dealing and failure to
disclose conflicts of interest.3 The theme of the Indictment is that Mr. Maddox
failed to disclose an alleged interest in a Governance entity and prior client
relationships. Even if we accept these allegations as true for purposes of this
motion, however, Skilling concluded that self-dealing and conflicts of interest are
not appropriate targets of an honest services prosecution. Instead, the Court
rejected the government's argument that the statute covered "self-dealing" or
claims of "conflicts of interest." Skilling, 130 S.Ct. at 2932. "Holding that honestservices fraud does not encompass conduct more wide ranging than the
paradigmatic cases of bribes and kickbacks, we resist the Government’s less
constrained construction absent Congress’ clear instruction otherwise." Id. at 2933.
The Court was explicit in rejecting the government's contention that conflicts of
interest cases were within the constitutional scope of the honest services statutes:
"In light of the relative infrequency of conflict-of-interest prosecutions in
comparison to bribery and kickback charges, and the intercircuit inconsistencies
they produced, we conclude that a reasonable limiting construction of §1346 must
exclude this amorphous category of cases." Id. at 2932.
3

See Indictment at Paragraphs 54, 73, 85.

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The Skilling Court expressed reservations as to the constitutionality of the
honest services statute in any form. Nevertheless, the Court drew on principles of
judicial restraint to not strike the statute entirely, although the concurrence would
have taken such an approach. The Court, in the majority opinion, noted the
principle that it should try to construe, rather than condemn, the statute if possible.
The Court looked for any reasonable construction that could save the statute and
held that it must be confined to allegations of kickbacks or bribes. Id. at 2929. The
Court found no legitimate construction of the "honest services" statute as applied to
the facts of the Skilling case.
3. McDonnell Court Limits Definition of "Official Act"
In 2016, the Supreme Court again narrowed the application of the honest
services statute. In McDonnell v. United States, 136 S.Ct. 2355 (2016), the Court
reviewed the honest services statute (and the Hobbs Act) for vagueness. The
decision was yet another landmark decision, narrowing the statute and raising
questions as to prior precedents. The McDonnell Court took the analysis beyond
where it had been in Skilling, requiring not only a strict quid pro quo exchange, but
also constricting the definition for the required element of an "official act."
The McDonnell Court held that many acts by public officials, such as
arranging meetings or contacting other government officials regarding a
constituent's needs, were not sufficient to constitute an "official act" for purposes
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of the honest services statute. McDonnell, 136 S.Ct. at 2365-66. "[C]onscientious
public officials arrange meetings for constituents, contact other officials on their
behalf, and include them in events all the time. The basic compact underlying
representative government assumes that public officials will hear from their
constituents and act appropriately on their concerns." Id. at 2372. Later cases
further hold that "taking a public position" on an issue is not an official act. United
States v. Silver, 864 F.3d 102, 122 (2d Cir. 2017).
The "official act" requirement is strict after McDonnell. The Supreme Court
described this requirement as follows: "the Government must identify a 'question,
matter, cause, suit, proceeding or controversy' that 'may at any time be pending' or
'may by law be brought' before a public official. Second, the Government must
prove that the public official made a decision or took an action 'on' that question,
matter, cause, suit, proceeding, or controversy, or agreed to do so." McDonnell,
136 S.Ct. at 2368.
In this case, many of the Defendant's alleged acts, such as failing to disclose
a relationship or referring constituents to the City Manager, do not meet the test for
official action. The Supreme Court likened the level of official act to be more
formal, like the filing of a lawsuit. The McDonnell Court held: "The last four
words in that list—'cause,' 'suit,' 'proceeding,' and 'controversy'—connote a formal
exercise of governmental power, such as a lawsuit, hearing, or administrative
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determination." Id. Informal action is insufficient. Most certainly, informal action
that is not given in direct exchange as a part of quid pro quo bribery is insufficient.
The McDonnell Court also raised the same "federalism" concerns that were
raised in McNally. In McNally, the Court noted that the application of the "honest
services" statute to conduct by state officials was problematic. An expansive
interpretation would not only create Due Process concerns, but also intrude into the
"prerogative to regulate the permissible scope of interactions between state
officials and their constituents." McDonnell, 136 S.Ct. at 2373. In this case, there
is no substantive federal bribery charge because the matter relates to a City
Commissioner. Thus, the federal charge again raises the problem of federal
intrusion into state and local government.
4. The Government's Incorporation of the Florida Bribery Statute
The government will likely argue that it has met its pleading burden under
Skilling by using the word "bribery" in scattered parts of this Indictment. On two
occasions in the Indictment, the "bribery" is tied to section 838.015, Florida
Statutes. In other places, including the "honest services" counts, there is no
statutory reference or any definition at all to support the bald legal claim of
"bribery." The Indictment, therefore, not only fails to address the federalism
concern raised by the Supreme Court, but it also raises the prospect of having fifty
or more interpretations of "honest services" fraud based on the myriad of state
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statutes on bribery on top of the multiple federal statutes defining bribery. If each
of the state law bribery statutes, along with the various federal statutes on bribery,
can form the basis for federal "honest services" allegations, the application of the
federal "honest services" standards will vary from state to state, and from statute to
statute, raising both federalism issues and Equal Protection concerns.
Here, the Indictment generally summarizes allegations of state law
"bribery," but only in those conclusory paragraphs where the government is trying
to check the box to show that all elements have been pled. The "bribery" reference
in the conclusory paragraphs on "honest services" fails to identify any particular
bribery statute. These conclusory allegations are also never matched up with the
specific factual allegations for each "Company" in the Indictment. This leaves the
Defendants in the dark as to the particular bribery statute allegedly applicable to
their conduct.
In terms of the proof required for a Section 1346 prosecution based on
bribery, the Skilling Court invoked a far more exacting standard than the standards
of Section 838.015, Florida Statutes. The Court required proof to the standards of
the federal bribery statute, that is, "18 U.S.C. §201(b)." Id. at 2933. Although it is
not charged in this case, Section 201(b) and cases construing that statute have very
strict requirements for proof of a "quid pro quo" transaction in order to sustain a

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federal bribery allegation. United States v. Sun-Diamond Growers of California,
119 S.Ct. 1402, 1406 (1999).
In Sun-Diamond, Justice Scalia writing for the majority, concluded that "for
bribery there must be a quid pro quo - a specific intent to give or receive
something of value in exchange for an official act." Id. Thus, it does not rise to the
level of bribery even if one gives gifts or money with the hope that the recipient
will use its governmental power or influence in the donor's favor. Sun-Diamond,
119 S.Ct. at 1407. For example, if a donor gives to a public official hoping to
create a "reservoir of goodwill" that might impact future acts, that is not enough to
constitute bribery. Sun-Diamond, 119 S.Ct. at 1406.
Thus, in this case, payments to Ms. Carter-Smith's Governance entity with
the hope that they might generate goodwill on an "as needed basis" (Paragraph 70)
or "as opportunities arose" (Paragraph 25, 73, 80, 89) are insufficient to allege
bribery. As the Supreme Court had held, a "statute in this field that can
linguistically be interpreted to be either a meat axe or a scalpel should reasonably
be taken to be the latter." Sun-Diamond, 119 S.Ct. at 1410.
This narrow construction, as crafted by the Supreme Court, is necessary to
avoid the chilling of First Amendment rights to support a candidate. This narrow
construction is important so that public servants can serve constituents without fear
of indictment. For these practical reasons and also to meet the constitutional
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requirements of Due Process, the strict limitation of "honest services" indictments
to quid pro quo bribery and kickbacks is now well established in the case law.
This heightened quid pro quo requirement had its origins in McCormick v.
United States, 500 U.S. 257 (1991), in the context of the Hobbs Act, in which the
Court held:
[T]o hold that legislators commit the federal crime of extortion when
they act for the benefit of constituents or support legislation
furthering the interests of some of their constituents, shortly before
or after campaign contributions are solicited and received from those
beneficiaries, is an unrealistic assessment of what Congress could
have meant by making it a crime to obtain property from another,
with his consent, “under color of official right.”
500 U.S. at 272. As held in McCormick, and later clarified by the Eleventh Circuit
in United States v. Martinez, 14 F.3d 543 (11th Cir. 1994), the requirement of
proof of a quid pro quo promise to perform a specific official act applies whether
one is talking about campaign contributions or any other type of payment.
Here, the government has not charged any substantive count of bribery in the
Indictment. The word "bribery" is only used in conclusory allegations within the
honest services, Hobbs Act and Travel Act counts. No bribery or quid pro quo is
alleged in any of the factual allegations. The words "quid pro quo" do not appear in
this Indictment. In "honest services" Counts 15-26 (at paragraph 2 of the summary
allegations for those counts), the government summarily avers that the right to
honest services has been deprived by "bribery" without identifying any federal or
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state statute, much less the required statutory elements, which must include a
specific quid pro quo transaction for each count. In the Travel Act and racketeering
counts, the government employs a reference to a state bribery statute, section
838.015, Florida Statutes. Again, this is alleged without tying any factual
allegations to any specific acts of bribery or quid pro quo transactions.
Notably, section 838.015, as it existed for the majority of the relevant time
period, required the government to prove that one acted "corruptly."4 This is
another element that is not pled in this Indictment, notwithstanding the statute's
requirements during the relevant time frame. The term "corruptly" under the
relevant version of the state statute has been construed by Florida courts to require
the same "quid pro quo" requirement that the government seems intent on
avoiding. In State v. Flansbaum-Talabisco, 121 So. 3d 568 (Fla. 4th DCA 2013),
the Court held that an "explicit quid pro quo" is required to prove a bribery charge
under section 838.015.5
The government's incorporation of the state statute generates additional
confusion beyond the application of Skilling and McDonnell. By failing to specify
which version of section 838.015 is implicated, after its amendment in 2016, the
Indictment leaves the accused to guess as to whether an element of "corruptness" is
required or whether the current version of the statute controls.
4

Laws of Florida, Ch 2016-151.
There is also a question as to that statute's constitutionality. See State v. DeLeo, 356 So.2d 306, 308 (Fla. 1978)
(unconstitutional with respect to element of "corrupt" intent).
5

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Moreover, the Indictment's incorporation of the state bribery charge
impermissibly lessens the burden for the government in violation of McDonnell.
Under the statute prior to amendment in Ch. 2016-151, Laws of Florida, the term
"corruptly" was simply defined in former Section 838.014(4) as "acting knowingly
and dishonestly for a wrongful purpose." This does not come close to the strict
standards required for conviction under quid pro quo bribery as stated in Skilling
and McDonnell.
The language of section 838.015, even in its current form, effectively
resurrects all of the vagueness problems that the Supreme Court laid to rest in
McDonnell. The state statute foregoes any reliance on the "quid pro quo" or
"official act" strict standards, and instead casts the widest possible net. The statute,
as incorporated into this Indictment, goes well beyond the narrow requirements of
the Supreme Court by stating that there does not have to be an "official act," but
just something "within the official discretion" of the public servant, or something
in violation of a public duty. This is a far cry from the formal action required under
McDonnell.
The Florida statute, as incorporated into the Indictment, unfairly expands
both the definition of the quid and the quo, requiring "any pecuniary or other
benefit not authorized by law with an intent or purpose to influence the
performance of any act or omission which the person believes to be, or the public
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servant represents as being, within the official discretion of a public servant, in
violation of a public duty, or in performance of a public duty." §838.015, Fla. Stat.
(2018) (emphasis added). In other words, after all the limiting work that the
Supreme Court has done in Skilling and McDonnell to narrowly construe the
statute to meet Due Process standards, the government has chosen in this
Indictment to incorporate a statute not so restricted.
Instead of requiring the quid of giving something "of value," the
government's charge would reduce the requirement to some "other benefit not
authorized by law" under the Florida statute.6 Instead of requiring the quo to be an
"official act" consistent with the demanding standards of McDonnell, the
government's charge would dilute the requirement to some "act or omission which
the person believes to be, or the public servant represents as being within the
official discretion of a public servant, in violation of a public duty, or in
performance of a public duty." This eviscerates Skilling and McDonnell, and
directly implicates the fear expressed by the concurrence in Skilling, warning that
the "possibilities range from any action that is contrary to public policy or
otherwise immoral, to only the disloyalty of a public official or employee to his
principal . . .". Skilling, at 2938. Thus, the Indictment's incorporation of Section
838.015, Florida Statutes, and its vague references to public duty and official
6

Under Florida's statutes banning gifts to state employees, the government could charge a "violation of a public
duty" by the act of accepting a bottle of water from a private person.

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discretion completely fail to meet the Due Process requirements expressed under
Skilling and McDonnell.
B. Racketeering and Hobbs Act
Count 1 of the Indictment is a sweeping allegation of a racketeering
conspiracy, which spans from bank fraud (not in any way related to public service)
to extortion, honest services fraud, and "multiple" unspecified acts of "bribery"
under "Florida State Statute 838.015." In addition, Counts 8-14 relate to alleged
Hobbs Act violations. These counts should be stricken on the same basic rationale
as outlined above for the "honest services" counts.
1. Fear of Economic Harm (Company A only - Count 8)
In terms of the Hobbs Act counts, many of the entities identified by letter,
such as Company A, had relationships with Governance before Mr. Maddox rejoined the Commission in 2012. Thus, there was no public power brought to bear
to induce these payments to Governance. Only Company A is alleged to have
experienced a "fear of economic harm." The allegations offered to support Count 8
are at Paragraphs 49-58 of the Indictment, but they do not sufficiently plead
extortionate behavior. Company A did not start paying the alleged Enterprise
because of any threat of economic harm. Instead, such payments commenced five
years before Mr. Maddox re-joined the Commission. Therefore, such payments
were not tied to any threat of economic harm from a public official. In fact, such
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payments ceased while Mr. Maddox was a commissioner over three years before
the alleged conspiracy ended. The Indictment essentially acknowledges this
problem at Paragraph 53 by relying on the subjective belief of Company A that it
might face economic harm, rather than any allegations of true threats.
2. Remaining Extortion Counts 9-14
Both Count 8 and the remaining "extortion" counts (9-14) also fail to meet
the Skilling/McDonnell criteria. In McDonnell, the Supreme Court applied the
same constitutional analysis to both the Hobbs Act and the honest services
allegations. As to both theories, the McDonnell Court found the convictions to be
deficient because of the lack of proof of any "official act."
In this case, both the Hobbs Act violations and the honest services fraud
require proof of a quid pro quo exchange, with the necessary allegation that an
official act within the McDonnell definition was exchanged directly for a thing of
value. These essential elements are not alleged in this Indictment, and the alleged
facts would be insufficient to support such a claim even if a quid pro quo exchange
had been summarily alleged.7
C. Travel Act (Counts 27-35)
Counts 27-35 allege violations of the Travel Act. All of these counts refer to
the "unlawful activity" as bribery under section 838.015, Florida Statutes. These
7

Again, as noted above in reference to the honest services claims, the racketeering Count 1 must also fail to the
extent it alleges Hobbs Act as a basis for the alleged racketeering conspiracy.

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counts must also fall for the reasons specified above. In addition, however, they
must fall because there is no allegation that either Defendant acted "corruptly." The
Florida Legislature deleted the "corruptly" element from that statute, effective
October 1, 2016, but such requirement existed for at least the timeframe of Counts
27-32. Laws of Florida, Ch 2016-151. Thus, these counts fail to plead the
"corruptly" element; they fail to allege a quid pro quo; and they fail to allege an
official act under the standards of McDonnell.
D. Additional Surplusage under Rule 7(b)
The Indictment is also flawed by its inclusion of numerous, non-criminal
matters, which serve no other purpose than to unfairly taint the Defendants and
confuse the fact finder. For example, at paragraphs 5 and 6 of the Indictment, the
Indictment baldly declares that there were "conflicts of interest" in unspecified
votes. Such conflicts of interest are not crimes, nor do they support a claim under
the honest services statute after Skilling.
Similarly, paragraphs 7 and 14 refer to comments to the Ethics Commission,
and a suggestion of a transgression in ethics rules, including an alleged false
statement to the commission. These acts are not within the scope of any federal
criminal statute, and would only serve to confuse a juror into believing that a
violation of an ethics rule is a federal crime. In the event that the relevant counts

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pertaining to such surplusage are not dismissed, these allegations should be
stricken from the Indictment.
Similarly, paragraph 9 of the Indictment refers to an alleged false statement
in a deposition "involving his residency and eligibility" for office. This alleged
false statement is never alleged to be a crime, nor is the issue of residency or
eligibility relevant to any of the charged offenses. Thus, such allegations only
create confusion and smear the accused. As such, they should be stricken as unduly
prejudicial surplusage. Paragraph 12 adds another layer of false choices to the
factfinder, as well, by referring to a "fiduciary duty" owed by the Defendant, even
though the breach of a fiduciary duty is not the equivalent of any federal crime.
The Indictment is rife with such irrelevant and unduly prejudicial material, which
does nothing to establish whether bribes were made or kickbacks received.
As noted above, the trip to Las Vegas (see e.g., paragraph 114) is also pure
surplusage with no reference to any bribe or kickback. In fact, it is precisely the
type of conduct that was deemed insufficient to constitute an offense in
McDonnell. In that case, a flight was also provided to the defendants along with
various expensive gifts worth over $175,000. McDonnell, 136 S.Ct. at 2364. Yet,
the Supreme Court determined that these gifts and payments were not exchanged
for any official act. Similarly, in this case, there is no "official act" that is alleged
to have been provided in exchange for this trip.
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Given that there are no allegations of kickbacks anywhere in the Indictment,
it is apparent that the case should be limited to a quid pro quo bribery theory only.
Yet, the Indictment fails to allege the quid pro quo or official act standards set
forth in Skilling and McDonnell. Moreover, the Indictment is littered with
references to conduct that is plainly insufficient under the standards of the
Supreme Court. As such, those counts of the Indictment should be dismissed.
WHEREFORE, the Defendant respectfully requests that this Court dismiss
Counts 1 and 8-35 of the Indictment on the grounds raised herein or, in the
alternative, strike those allegations relating to companies that are not alleged to
have engaged in quid pro quo bribery and also strike other unduly prejudicial
material that has no connection to acts of quid pro quo bribery.
Respectfully submitted,
/s/ Stephen S. Dobson, III
STEPHEN S. DOBSON, III
Florida Bar No.: 0779008
Primary Email: sdobson@bakerdonelson.com
Secondary Email: jwarmack@bakerdonelson.com
BAKER, DONELSON, BEARMAN,
CALDWELL & BERKOWITZ, PC
Monroe-Park Tower
101 North Monroe Street, Suite 925
Tallahassee, Florida 32301
Telephone: (850) 425-7500
Counsel for Defendant,
Scott Charles Maddox

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LOCAL RULE 7.1(F) CERTIFICATE
I HEREBY CERTIFY that the above memorandum complies with the word
limit in N.D. Fla. Loc. R. 7.1(F) because this memorandum contains 6,260 words,
excluding those parts that are exempted by the rule.
/s/ Stephen S. Dobson, III
STEPHEN S. DOBSON, III
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing
instrument has been furnished electronically via CM/ECF this 22nd day of
February, 2019, to:
Stephen M. Kunz, Esquire
Assistant U.S. Attorney
Office of the U.S. Attorney
111 North Adams Street, 4th Floor
Tallahassee, Florida 32301
Stephen.Kunz@usdoj.gov

Peter M. Nothstein, Esquire
U.S. Trial Attorney
U.S. Department of Justice
Public Integrity Section,
Criminal Division
1400 New York Avenue, NW
Suite 1200
Washington, DC 20005
peter.nothstein@usdoj.gov

Simon J. Cataldo, Esquire
U.S. Trial Attorney
U.S. Department of Justice
Public Integrity Section
1400 New York Avenue, Suite 12000
Washington, DC 20005
Simon.Cataldo@usdoj.gov

Stephen G. Webster, Esquire
Law Offices of Stephen G. Webster,
LLC
1615 Village Square Boulevard, Suite 5
Tallahassee, Florida 32309
sw@swebsterlaw.net
Counsel for Defendant,
Janice Paige Carter-Smith
/s/ Stephen S. Dobson, III
Attorney

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