United States v. Menendez (291 F. Supp. 3d 606, 2018)

Defendants contend that Ganim 's reliance on the distinction between gratuities and bribery cases is a misreading of Sun-Diamond. They argue that McDonnell clarified this misreading by adopting Sun-Diamond's interpretation of "official act," thereby incorporating its requirements wholesale in all cases brought under section 201. ECF NO. 177-1, at 5; see McDonnell , 136 S.Ct. at 2370 ("It is apparent from Sun-Diamond that hosting an event, meeting with other officials, or speaking with interested parties is not, standing alone, a 'decision or action' within the meaning of § 201(a)(3)....").

But McDonnell 's adoption of Sun-Diamond 's "official act" interpretation-contained in section 201(a)(3) and applicable to both the bribery and gratuities provisions-does not also incorporate its interpretation of section 201(c)(1)(A), which is part of the distinct gratuities provision. As Ganim observed, the nexus requirement in Sun-Diamond was a construction of the causal nature of "for or because of any official act," which does not appear in the bribery provision, section 201(b)(2). Because both crimes require a definition of "official acts," there is no reason to think that the interpretation of section 201(a)(3) in Sun-Diamond would not apply in the bribery context as well.

McDonnell neither abolished the stream of benefits theory nor held that an official act that is the object of an illegal quid pro quo agreement must be identified at the time the agreement is made. It merely narrowed the definition of "official act"; the opinion says nothing new about what nexus must be shown between a thing of value and an official act. In other words, McDonnell is about the quo , not the pro.

Against the backdrop of established Third Circuit authority approving the stream of benefits theory, McDonnell 's silence regarding that theory cannot be its death knell. The Court is bound to follow controlling Third Circuit authority, and it does here. See United States v. Mitlo , 714 F.2d 294, 298 (3d Cir. 1983) (quotations omitted) ("[A] decision by this court, not overruled by the Supreme Court[,] is a decision of the court of last resort of this federal judicial circuit and is therefore binding on all inferior courts and litigants in the Third Judicial Circuit ...."). This is particularly so given the widespread acceptance of the stream of benefits theory pre- McDonnell , and the fact that the Supreme Court "does not normally overturn, or so dramatically limit, earlier authority sub silentio. " Shalala v. Illinois Council on Long Term Care, Inc. , 529 U.S. 1, 18, 120 S.Ct. 1084, 146 L.Ed.2d 1 (2000). That Justice Sotomayor, who authored the lodestar stream of benefits opinion as a judge on the Second Circuit, joined the Court in McDonnell further weakens Defendants' argument that McDonnell silently overruled the stream of benefits theory of bribery.

Indeed, post- McDonnell , the Third Circuit and other Circuit courts have continued to cite favorably to their own stream of benefits precedents, indicating their view that the Supreme Court left the theory intact. See United States v. Skelos , Nos. 16-1618, 16-1697, 707 Fed.Appx. 733, 738, 2017 WL 4250021 at *3 (2d Cir. Sept. 26, 2017) (quoting United States v. Bruno , 661 F.3d 733, 744 (2d Cir. 2011) ) ("Acts constituting the agreement need not be agreed to in advance. A promise to perform such acts as the opportunities arise is sufficient."); Repak , 852 F.3d at 251 (quoting Bradley , 173 F.3d at 231 ) (for Hobbs Act violation "it is sufficient if the public official understands that he is expected, as a result of the payment, to exercise particular kinds of influence or to do certain things connected with his office as specific opportunities arise"); see also United States v. Malkus , 696 Fed.Appx. 251, 253 (9th Cir. 2017) (" McDonnell did not change the 'linkage' requirement of federal bribery statutes ....").

In light of the stream of benefits theory's continued vitality, the Court also concludes that a rational juror could find that Defendants entered into a quid pro quo agreement. All of Menendez's alleged official acts occurred during the relatively short period of January 2006 through January 2013, and during the same period Melgen gave Menendez a stay in an upscale Parisian hotel, various flights without cost, and stays at Melgen's villa in the Dominican Republic. During this same period of time, there is evidence that Menendez reached his highest public office, that of the United States Senate, and became a member of the Finance and Foreign Relations Committees. A rational juror could conclude from the activities of these defendants that there was an implicit agreement to exchange things of value for official acts. See McDonnell , 136 S.Ct. at 2371 ("The agreement need not be explicit, and the public official need not specify the means that he will use to perform his end of the bargain.").

Defendants' motion for acquittal on this basis is denied. Regarding Defendants' renewed Rule 29 motion, none of the evidence presented by Defendants requires a different conclusion.

b. A Rational Juror Could Find That Senator Menendez Performed Official Acts Satisfying the McDonnell Standard.

In this case, there are four incidents from which a rational juror could conclude official acts arise: Menendez's visa-related advocacy, his advocacy relating to Melgen's Medicare billing dispute, his advocacy concerning Melgen's contract to provide security services to Dominican Republic ports (the "ICSSI contract"), and his opposition to the United States government's potential gift of security screening technology to the Dominican Republic government.

Viewing the evidence, as the Court must, in the light most favorable to the Government, each of these incidents has a common thread. That is, during the period of January 2006 through January 2013, there is evidence to sustain the determination that Menendez sought to "exert pressure on" or "advise" other government officials to take official actions for Melgen's benefit. McDonnell , 136 S.Ct. at 2372.

There is available evidence that, with regard to the visas, Menendez by phone call or by correspondence interceded with appropriate State Department officials to obtain favorable consideration of visa applications made by Melgen's friends. See, e.g. , GX 20; GX 25; GX 30.

As to the Medicare billing dispute, there is evidence to indicate a controversy as to billing practices between Melgen and Medicare, which amounted to $8.9 million. Sept. 26, 2017, Tr. at 191. There is evidence to support the conclusion that from 2009 to August 2012, at various times and with various representatives of Medicare and with cabinet officials, Menendez sought to pressure or advise such officials to look at the controversy favorably to Melgen by making personal phone calls to officials in the Department of Health and Human Services, which has overall direction of Medicare policy, and meeting with the then-secretary of that agency in August 2012. See, e.g. , Oct. 2, 2017, Tr. at 82 (2009 phone call with Jonathan Blum); Oct. 3, 2017, Tr. at 179, 187 (August 2012 meeting with Kathleen Sebelius and others). There is evidence from which a rational juror could conclude that the meeting was not regarding general policy matters, but was in reality about securing a favorable ruling or decision for Melgen, who was the only doctor seeking to change that particular policy, and who had $8.9 million at stake. See Oct. 2, 2017, Tr. at 101.

With regard to the port security contract, during the period from January 2006 through January 2013, Melgen was the owner of a company which held a contract to provide security services in the harbor of a port in the Dominican Republic. Sept. 25, 2017, Tr. at 134-40. There was a dispute between his company and the Dominican Republic over the enforceability of that contract. Id. From the evidence at trial, a rational juror could conclude that Menendez sought through meetings with various State Department officials, including those of ambassadorial rank, to pressure or advise them to take official action which would be beneficial to his friend's contract. Id. ; GX 138.

Finally, to further aid his friend and his contract, there is evidence available from which a rational juror could conclude that Menendez sought to pressure or advise another government agency to desist in giving a gift of security scanning equipment until Menendez could discuss the issue with them. Sept. 25, 2017, Tr. at 134-37.

Defendants' motion for acquittal on this basis is denied. Regarding Defendants' renewed Rule 29 motion, none of the evidence presented by Defendants requires a different conclusion.

c. Inter-Branch Lobbying Can Qualify as an Official Act Under McDonnell.

Defendants next argue that acquittal on Counts 1-17 is required because inter-branch lobbying can never be an "official act." ECF No. 241-1, at 49. They contend that because the official acts alleged in this case involve decisions by the executive branch, Menendez, a legislative branch official, cannot have accepted a gift in return for "being influenced in the performance of any official act." Id. (quoting 18 U.S.C. § 201(b)(2)(A) ).

The McDonnell framework for identifying an official act first requires that there be a "question, matter, cause, suit, proceeding or controversy," and second requires that the public official "make a decision or take an action on that 'question, matter, cause, suit, proceeding or controversy.' " Id. ; see United States v. Boyland , 862 F.3d 279, 289 (2d Cir. 2017) (articulating McDonnell 's two-part framework). Even if the public official does not himself make a decision or take an action, the second requirement may be satisfied when the official (1) exerts pressure on another public official to perform an official act, or (2) provides advice, knowing or intending that such advice will form the basis for an official act. McDonnell , 136 S.Ct. at 2372.

Defendants argue that inter-branch lobbying cannot constitute an "official act" because such lobbying can never "form the basis" for an official act. Because McDonnell did not limit the scope of "official act" in this way, this argument fails. First, the language of McDonnell requires that a public official who advises another official know or intend that his advice will "form the basis" for an official act, but does not impose such a limitation when the public official engages in an official act by "exert[ing] pressure." The two alternatives are set out in separate sentences, and the "exert[ing] pressure" sentence does not require that the public official know or intend that the pressure "form the basis" of the ultimate official act. Id. at 2370. Consequently, the Government is not required to prove that a public official knew or intended that inter-branch advocacy would "form the basis" for any official act if such advocacy comes in the form of "exert[ing] pressure." Id.

Second, it is certainly possible for inter-branch advocacy to "form the basis" for an official act. Defendants essentially acknowledge this when they posit a hypothetical in which a senator persuades the President to veto a bill, and argue that it would not constitute an official act. ECF No. 241-1, at 52. If, as they suggest, a senator in fact convinced the President to veto a bill he otherwise would have signed, then the pressure would have "formed the basis" for the official act under any reasonable understanding of that phrase.

Defendants further argue that limiting McDonnell 's, "exert[ ] pressure" and "advise" language to intra-branch advocacy is necessary to prevent its application from being overbroad. ECF No. 241-1, at 52. The Court disagrees. McDonnell carefully drew the line between advocacy that could serve as an "official act" and advocacy that could not. The Chief Justice laid out multiple limitations on this type of official action.

An official does not take an "official act" by "[s]imply expressing support [for an official act] ... as long as the public official does not intend to exert pressure on another official ...." McDonnell , 136 S.Ct. at 2371. While "exert[ing]

pressure" may constitute an official act, "expressing support" cannot. Id. Further, exerting pressure is an official act only when the official uses his "official position." Id. Similarly, providing advice can be an official act only when the official "know[s] or intend[s] such advice [will] form the basis for an 'official act.' " Id. Finally, both alternatives are cabined by the Court's limitation that an official act involve a "formal exercise of governmental power that is similar in nature to a lawsuit," that it be "specific and focused," and that it be " 'pending' or 'may by law be brought' before another public official." Id. at 2372.

Under Defendants' reading, it would be per se legal to give the President a thing of value to influence him to pressure the Senate Majority Leader to vote or not vote for a particular bill. This cramped reading of McDonnell is contrary to the purpose of section 201 and the language of the McDonnell Court. Given the clear limitations in the McDonnell opinion, Defendants' reading is not necessary to save its application from overbreadth.

Defendants' motion for acquittal on this basis is denied. Regarding Defendants' renewed Rule 29 motion, none of the evidence presented by Defendants requires a different conclusion.

d. A Rational Juror Could Find that Melgen Gave Menendez Gifts Intending that Menendez Take Official Actions He "Would Not Otherwise Take."

Defendants next argue that acquittal is required on Counts 2-17 because the Government failed to prove that that either defendant had the specific intent to commit bribery. ECF No. 241-1, at 43. Specifically, they argue that the Government failed to introduce evidence that Menendez took official action that he would not otherwise take.

In explaining the requisite intent to commit bribery, the Third Circuit has stated that the Government must prove that "the payor provided a benefit to a public official intending that he will thereby take favorable official acts that he would not otherwise take." United States v. Wright , 665 F.3d 560, 568 (3d Cir. 2012).

Defendants rely on this language to argue that the Government must show that Menendez "accepted a bribe with the intent to take favorable official acts that he would not otherwise take." Oct. 11, 2017, Tr., at 208. As the Court has stated, that language describes the requisite intent of the payor, not the public official. Nov. 11, 2017 Tr. at 57. The Third Circuit stated that "[the factfinder] must conclude that the payor provided a benefit to a public official intending that he will thereby take favorable official acts that he would not otherwise take." Wright , 664 F.3d at 568 (emphasis added). In contrast, the court went on to say that the factfinder "must conclude that the official accepted those benefits intending, in exchange for the benefits, to take official acts to benefit the payor." Id. (emphasis added).

Consequently, the "would not otherwise take" standard applies only to Melgen. As to him, Defendants argue that a jury could find only that Melgen provided the things of value as a reward, but not as an attempt to influence. They therefore argue that this would constitute only a gratuity, and not a bribe. ECF No. 241-1, at 44.

From the evidence introduced at trial, viewed in the light most favorable to the Government, a rational juror could find that Melgen had the intent to influence Menendez in the performance of official acts, regardless of Menendez's earlier advocacy. With regard to the Medicare billing dispute, it is true that Menendez had taken steps to help Melgen before the alleged bribe. That does not mean, however, that Menendez remained willing to intercede again on Melgen's behalf. A rational juror could infer that Melgen provided things of value with the intent to influence Menendez to take up the issue again, believing that he otherwise would not have done so. Further, Menendez's 2009 advocacy is itself charged as an official act in a bribery scheme, see ECF No. 149, at ¶¶ 146-82, and there is no reason to conclude that, if that advocacy was the result of a bribe, Melgen believed he no longer had to pay Menendez for further advocacy in 2012.

With regard to the Brownfield meeting, Defendants argue that Melgen cannot have made the May 16, 2012 contribution with the intent to influence Menendez because, when Melgen agreed on May 11 to make the contribution, Menendez had already scheduled the meeting. ECF No. 241-1, at 47. However, the Government introduced evidence from which a rational juror could infer that Melgen had already agreed to make the contribution before Menendez scheduled the Brownfield meeting. See, e.g. , GX 133 (April 30 email from Eduardo Rodriguez (Melgen's son-in-law and employee) to Daniel O'Brien (Menendez's chief of staff) stating "don't worry ... [w]e will take care of [the contribution]"). Because the relevant timing in a bribery case is that of the agreement (and not any resulting exchange), a rational juror could find that Melgen made the May 16 contribution with the intent to influence Menendez to advocate for him with Brownfield. See United States v. Young , 651 Fed.Appx. 202, 204 (4th Cir. 2016) ("[T]he timing of the payment in relation to the official act for which it is made is (in theory) irrelevant." (quoting Jennings , 160 F.3d at 1014 )); United States v. Fernandez , 722 F.3d 1, 19 (1st Cir. 2013) (emphasizing that the time of the agreement is the pertinent inquiry, not the time of the payment). Defendants also argue, as with the Medicare dispute, that Menendez's earlier advocacy with regard to the ICSSI contract is conclusive evidence that Melgen did not have the intent to influence because Menendez would take the requested action without receiving a thing of value. The Court rejects this argument for the same reasons.

With regard to the visa applications, Defendants argue that Menendez's similar advocacy for other visa applicants is conclusive evidence that Melgen did not have the intent to influence Menendez in the performance of official acts. ECF No. 241-1, at 48. Defendants point to evidence in the record indicating that visa-related advocacy by Menendez and other senators is not unusual. However, that Menendez provided similar assistance to others is not evidence that would preclude a juror from finding that Melgen believed that offering things of value would influence Menendez. There is no evidence that Melgen was aware of Menendez's similar efforts for others, such that he could expect Menendez's assistance in three separate visa matters as a matter of course. "It goes without saying that matters of intent are for the jury to consider." McCormick , 500 U.S. at 270, 111 S.Ct. 1807 (citing Cheek v. United States , 498 U.S. 192, 203, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991) ).

Defendants' motion for acquittal on this basis is denied. Regarding Defendants' renewed Rule 29 motion, none of the evidence presented by Defendants requires a different conclusion.

e. Citizens United Does Not Bar the Prosecution of Bribery Schemes Involving Contributions to Super PACs.

Defendants move for acquittal on Counts 1, 11-14, and 17 (the "political contribution counts"), arguing that they rely on contributions made to Majority PAC, a Super PAC, "and the Supreme Court has held that, as a matter of law, independent expenditures cannot give rise to corruption or the appearance of corruption." ECF No. 241, at 40. Absent evidence of coordination between Majority PAC and the Menendez campaign, according to Defendants, Melgen's contributions to it "cannot be sufficiently valuable to [Menendez] in a way that might ever lead to quid pro quo corruption." Id. at 42. Before trial, the Court rejected nearly identical arguments made by Defendants in support of a motion to dismiss the indictment. See ECF No. 119, at 2-7. No different conclusion is required now.

The Supreme Court in Citizens United v. Federal Election Commission , 558 U.S. 310, 318-19, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010) invalidated a federal law prohibiting corporations from making independent political expenditures. In doing so, the Court considered the Government's interest in limiting independent expenditures "to prevent corruption or its appearance," id. at 356, 130 S.Ct. 876, and determined that the law at issue would "have a chilling effect [on political speech] extending well beyond the Government's interest in preventing quid pro quo corruption," id. at 357, 130 S.Ct. 876. It reasoned that "[t]he absence of prearrangement and coordination of an expenditure with the candidate or his agent not only undermines the value of the expenditure to the candidate, but also alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate." Id. Defendants seize upon this language, arguing that "[b]ecause the prosecution failed to offer any evidence that Majority PAC improperly coordinated with any campaign, such that its activities would cause its expenditures to lose their protected 'independent' status, the First Amendment requires an acquittal on these counts as a matter of law." ECF No. 241, at 40.

Here, the Government alleges that Defendants engaged in a quid pro quo bribery scheme, not that either defendant violated campaign finance regulations. In other words, the charges in this case concern bribery, not political speech. See United States v. McGregor , No. 10-186, 2011 WL 1576950, at *3 (M.D. Ala. Apr. 4, 2011) ("If at trial the Government can show that there was a bribery scheme to deprive the citizenry of honest services, then Defendants' conduct, not their speech, will have been regulated by the statute."). As the Court held before trial, nothing in Citizens United or related cases implies a First Amendment bar to bribery prosecutions. See ECF No. 119, at 3-4. On the contrary, those decisions suggest an ongoing concern with precisely the type of dollars-for-official-action exchange that is at the core of the Government's allegations in this case. See Citizens United , 558 U.S. at 360, 130 S.Ct. 876 ("If elected officials succumb to improper influences from independent expenditures ... then surely there is cause for concern."); McCutcheon v. FEC , --- U.S. ----, 134 S.Ct. 1434, 1450, 188 L.Ed.2d 468 (2014) ("Spending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officerholder's official duties , does not give rise to quid pro quo corruption.") (emphasis added).

Defendants also suggest that because Menendez lacked control over the final disposition of Melgen's Majority PAC contributions, those contributions can never be "anything of value" under 18 U.S.C. § 201. This contention is based on the Supreme Court's reasoning in Citizens United that independent expenditures had insufficient actual value to candidates to raise concerns of quid pro quo corruption because of the "absence of prearrangement and coordination of an expenditure with the candidate." 558 U.S. at 357, 130 S.Ct. 876 (quoting Buckley v. Valeo , 424 U.S. 1, 47, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) ). The passage in Buckley cited in Citizens United noted that, because of this lack of coordination, independent expenditures "may well provide little assistance to the candidate's campaign and may prove counterproductive." Buckley , 424 U.S. at 47, 96 S.Ct. 612. In other words, an independent expenditure may not necessarily be valuable to a particular candidate. Yet, as this Court held before trial, a donation to an independent Super PAC can constitute "anything of value" for at least two reasons. See ECF No. 119, at 4-7.

First, "value" for the purposes of section 201 is subjective. See Kemp , 500 F.3d at 285 (citing authorities from other circuits "focus[ing] on the value that the recipient 'subjectively attache[d] to the items received' " (quoting United States v. Gorman , 807 F.2d 1299, 1305 (6th Cir. 1986) )); United States v. Renzi , 769 F.3d 731, 744 (9th Cir. 2014) (noting that "anything of value" is "defined broadly to include 'the value which the defendant subjectively attaches to the items received' " (quoting Gorman , 807 F.2d at 1305 )); United States v. Williams , 705 F.2d 603, 623 (2d Cir. 1983) ("Corruption of office occurs when the officeholder agrees to misuse his office in the expectation of gain, whether or not he has correctly assessed the worth of the bribe.").

Second, section 201 explicitly reaches things of value given to third parties if they are sought by or promised to a public official in connection with the performance of an official act. 18 U.S.C. § 201(b)(1) (criminalizing the making of a corrupt promise to a public official "to give anything of value to any other person or entity , with intent to influence any official act") (emphasis added); id. § 201(b)(2) (criminalizing the seeking by a public official of "anything of value personally or for any other person or entity , in return for being influenced in the performance of any official act") (emphasis added).

Based on the evidence adduced at trial, a rational juror could find that Melgen's contributions to Majority PAC constituted "anything of value" within the meaning of 18 U.S.C. § 201 because there was ample evidence available from which it could conclude either that Menendez placed subjective value on Melgen's Majority PAC contributions, or that Menendez (or his agents) solicited Melgen's contributions to Majority PAC. See, e.g. , GX 133 (April 30, 2012 email from Daniel O'Brien to Eduardo Rodriguez, subject "humbly asking," requesting contributions to the NJDSC, which "is vital to the Senator's efforts as the state party will conduct voter contact and get out the vote activities on behalf of Senator Menendez," and informing him that "there may be bigger opportunities out there for the doctor to join in later this summer that will be beneficial to the Senator's re-election effort"); Oct. 4, 2017, Tr. at 6-9 (Franz Katz Watson testifying that she was "hired to oversee the fundraising operation" for Menendez for Senate and organized the June 1, 2012 Pegasus fundraiser at which Melgen made a $300,000 contribution earmarked for New Jersey); id. at 31-32 (Franz Katz Watson testifying that the year before and year of Senatorial election are "in cycle" in fundraising terms); id. at 89 (Jacob Perry testifying Melgen gave $600,000 to Majority PAC "earmarked for New Jersey"); id. at 102 (Jacob Perry testifying that Menendez's was the only New Jersey Senate race in 2012, and that money given to Majority PAC and earmarked for New Jersey would benefit Menendez); GX 199 (June 1, 2012 email from Scarinci to Melgen attaching flyer explaining that "Majority PAC may directly advocate for candidates we support"); GX 202 (check slip for Melgen's June 1, 2012 $300,000 contribution to Majority PAC reads "for B. Menendez"); GX 232 (October 12, 2012 $300,000 check sent from Scarinci's law firm to Craig Varoga, who forwards to Jacob Perry with subject line "Entire $300k to Majority PAC is earmarked for New Jersey").

Defendants' motion for acquittal on this basis is denied. Regarding Defendants' renewed Rule 29 motion, none of the evidence presented by Defendants requires a different conclusion.

f. A Rational Juror Could Not Find an Explicit Quid Pro Quo on the Political Contribution Counts.

Defendants argue that acquittal on the political contribution counts is required because the Government did not prove an explicit quid pro quo. Specifically, Defendants argue that the Government relies on "chronology alone," and improperly asks the jury to infer an explicit quid pro quo based solely on a temporal relationship between the political contributions and official acts. ECF No. 241-1, at 35-36.

The Government responds that the evidence at trial satisfies the nexus requirement for the political contribution counts. Specifically, the Government contends that in addition to a strong temporal connection, an explicit quid pro quo is demonstrated through context, chronology, escalation, concealment, and a pattern of corrupt activity. ECF No. 251, at 4.

" Section 201 prohibits quid pro quo corruption-the exchange of a thing of value for an 'official act.' " McDonnell , 136 S.Ct. at 2372. For most things of value, "proof of an explicit promise to perform the official acts in return for the payment is not required." Bradley , 173 F.3d at 231 (quoting United States v. Delano , 55 F.3d 720, 731 (2d Cir. 1995) ). Instead, all that is required is that a "public official has obtained a payment to which he was not entitled, knowing that the payment was made in return for official acts." Evans v. United States , 504 U.S. 255, 268, 112 S.Ct. 1881, 119 L.Ed.2d 57 (1992) ; see United States v. Rosen , 716 F.3d 691, 701 (2d Cir. 2013)abrogated on other grounds by McDonnell , 136 S.Ct. 2355, as recognized in United States v. Silver , 864 F.3d 102, 119 & n.88 (2d Cir. 2017) (rejecting argument that explicit quid pro quo is required outside the campaign contribution context); United States v. Ring , 706 F.3d 460, 466 (D.C. Cir. 2013) (same); Kemp , 500 F.3d at 282 (3d Cir. 2007) (holding, outside the campaign contribution context, that "the quid pro quo requirement is satisfied so long as the evidence shows a 'course of conduct' of favors and gifts flowing to a public official in exchange for a pattern of official actions favorable to the donor" (quoting Jennings , 160 F.3d at 1014 )).

However, First Amendment values are implicated when the thing of value is a political contribution. Menendez , 132 F.Supp.3d at 642. Consequently, to prove that a political contribution was the subject of a bribe, the Government must prove an explicit quid pro quo. See McCormick , 500 U.S. at 273, 111 S.Ct. 1807 ("The receipt of such contributions is also vulnerable under the Act ..., but only if the payments are made in return for an explicit promise or undertaking ...."); Siegelman , 640 F.3d at 1171 (requiring explicit promise of official action when government alleges that campaign contributions are subject of bribery); United States v. Inzunza , 638 F.3d 1006, 1013 (9th Cir. 2011) (same); cf. United States v. Salahuddin , 765 F.3d 329, 343 n.9 (3d Cir. 2014) (limiting requirement of explicit quid pro quo to campaign contribution context); Bradley , 173 F.3d at 231 (same); United States v. Garcia , 992 F.2d 409, 414 (2d Cir. 1993) (same).

While the quid pro quo must be explicit, it need not be express; political contributions may be the subject of an illegal bribe even if the terms are not formalized in writing or spoken out loud. See Siegelman , 640 F.3d at 1171 ; United States v. Blandford , 33 F.3d 685, 696 (6th Cir. 1994) ; Menendez , 132 F.Supp.3d at 641. As this Court has noted, "explicit" refers "not to the form of the agreement between the payor and payee, but the degree to which the payor and the payee were aware of its terms ...." Menendez , 132 F.Supp.3d at 641 (quoting Blandford , 33 F.3d at 696 ); see United States v. Carpenter , 961 F.2d 824, 827 (9th Cir. 1992) ("In our view, what McCormick requires is that the quid pro quo be clear and unambiguous, leaving no uncertainty about the terms of the bargain.").

A close temporal relationship between political contributions and favorable official action, without more, is not sufficient to prove the existence of an explicit quid pro quo. See Siegelman , 640 F.3d at 1171 ("In the absence of such an agreement on a specific action, even a close-in-time relationship between the donation and the act will not suffice."); Huff v. FirstEnergy Corp. , 972 F.Supp.2d 1018, 1035 (N.D. Ohio 2013) ("Close-in-time contributions, standing alone, will not suffice to establish a quid pro quo agreement."). "To hold illegal an [official action] furthering the interests of some constituents shortly before or after campaign contributions are solicited and received 'would open to prosecution not only conduct that has long been thought to be well within the law but also conduct that in a very real sense is unavoidable ....' " Empress Casino Joliet Corp. v. Johnston , 763 F.3d 723, 731 (7th Cir. 2014) (quoting McCormick , 500 U.S. at 272, 111 S.Ct. 1807 ).

The relevant inquiry to determine if the Government has met its burden with respect to the political contribution counts is whether a rational juror could find that there was a quid pro quo , and that the charged Defendant was aware of its terms. While the "jury may consider both direct and circumstantial evidence, including the context [of the arrangement]," Carpenter , 961 F.2d at 827, the Government must produce evidence other than a close temporal relationship to overcome this heightened burden. See Siegelman , 640 F.3d at 1171.

The charged political contributions fall into three general categories: a $60,000 contribution to the New Jersey Democratic State Committee (the "NJDSC") and the Fund to Uphold the Constitution (the "Fund") on May 16, 2012 (Counts 9 and 10); a $300,000 contribution to Senate Majority PAC earmarked for New Jersey on June 1, 2012 (Counts 11, 12, and 17); and another $300,000 contribution to Senate Majority PAC earmarked for New Jersey on October 12, 2012 (Counts 13 and 14). The Court will address these in turn.

i. Counts 9 and 10: $60,000 to NJDSC and the Fund

Counts 9 and 10 charge Menendez and Melgen, respectively, with agreeing to exchange contributions of $60,000 to the NJDSC and the Fund for advocacy to the highest levels at the State Department on behalf of Melgen in his dispute with the Dominican Republic government regarding the ICSSI contract. This advocacy culminated in a meeting between Menendez and then-Assistant Secretary of State for the Bureau of International Narcotics and Law Enforcement Affairs ("INL") William Brownfield on May 16, 2012.

The first request for the $60,000 came in December 2011, when Menendez fundraiser Kory Vargas Caro sent an email to Eduardo Rodriguez asking "whether or not you and the family can help the New Jersey Democratic State Committee (NJDSC)." GX 254. Later that day, Caro emailed Daniel O'Brien, stating that Rodriguez "[c]alled me back and said Dr. Melgen wants to first talk to [Menendez] before writing the checks." He went on to say that "[t]his is standard Dr. Melgen." GX 255.

Despite his apparent willingness, Melgen did not provide the requested donation. On April 30, Menendez's staff made a second request for the $60,000 in an email from O'Brien to Rodriguez, with the subject line "Humbly Asking." GX 133. The email requested that Melgen and his family donate $40,000 to the NJDSC, and $20,000 to the Fund. Id. The email also indicated that there would be "bigger opportunities out there for the doctor [Melgen] to join later this summer that will be beneficial to the Senator's re-election effort." Id. Rodriguez responded: "We will take care of it. Dr. Melgen will be calling you tomorrow to speak further." Id.

Menendez had first raised the port security issue with INL when he met with Brownfield on September 21, 2011. Menendez recommenced his advocacy on May 10, 2012, shortly after O'Brien's second request for the $60,000 contribution. Menendez's staff member Jodi Herman contacted INL to set up a meeting with Brownfield to discuss "DR (cargo from [Dominican Republic] coming into US ports)." GX 134; Sept. 28, 2017, Tr. at 171; Sept. 26, 2017, Tr. at 53. INL staff asked Herman to be more specific about the subject of the requested meeting, but she was unable do so, stating: "I had to drag even this information out of him. He was just in the [Dominican Republic] for a personal visit and imagine he has some observations to share...." GX 134.

Later that day, Melgen spoke on the phone with O'Brien. GX 136. O'Brien followed up with Melgen the next day by emailing Rodriguez, and indicated that Melgen had agreed to make the $60,000 contribution. Id.

On May 12, Menendez emailed O'Brien to ask him what the balance in the NJDSC account was at that time. GX 135. Melgen still had not made the requested contribution. GX 136.

On May 15, Rodriguez told O'Brien that he would send the contributions to O'Brien's home. Id. ; Oct. 2, 2017, Tr. at 8. The same day, Melgen expressed a desire to speak with O'Brien to "verify some info for contributions." GX 137.

On May 16, Menendez met with Brownfield. Menendez expressed dissatisfaction with INL's level of engagement in the Dominican Republic, and the Senator asked that INL report back no later than July 1 with a "clear deliverable that is already in place or being implemented." GX 138. Menendez threatened to hold a hearing if INL failed to come up with a solution. Id. ; Sept. 26, 2017, Tr. at 79-80. Brownfield believed Menendez "was alluding to" the ICSSI contract that Menendez raised with him in September 2011. GX 138.

Also on May 16, Melgen issued three checks, each for $20,000. Two were drawn from the account of Salomon and Flor Melgen. GX 143; GX 142. The third was from Melgen's daughter and son-in-law, Melissa Melgen and Eduardo Rodriguez. GX 140. That day, Melissa also received a check for $20,000 from Melgen's company, Vitreo-Retinal Consultants ("VRC"). GX 139. The word "salary" was written in the memo line. Id. That evening, Rodriguez emailed O'Brien with the FedEx tracking information, informing him that the contributions had been sent to his house for overnight delivery. GX 141.

From this evidence, a rational juror could not find that Menendez and Melgen were aware of the terms of the alleged quid pro quo. There is no evidence that either defendant connected the $60,000 contribution with the Brownfield meeting or other advocacy to the Department of State. There is no evidence that the Defendants even discussed the ICSSI contract during this time. The evidence shows only that Melgen's staff was discussing the contribution with Menendez fundraisers during an election season.

There is evidence that Melgen spoke with O'Brien on the phone during this period, and that Melgen had expressed a desire to speak with Menendez in December 2011. However, there is no evidence about what was discussed during those phone calls. A rational juror could only speculate as to whether Defendants discussed the ICSSI contract, or that they did so in connection with the contribution, from the simple fact that a phone call occurred. In Empress Casino Joliet Corp. v. Johnston , 763 F.3d 723 (7th Cir. 2014), the Seventh Circuit considered a RICO claim alleging that then-Governor Blagojevich received campaign contributions from horse-racetrack owners in exchange for signing two bills into law, one in 2006 (the "'06 Act") and one in 2008 (the "'08 Act"). The court affirmed summary judgment in favor of the defendant Governor as to the '06 Act, finding insufficient evidence of an explicit quid pro quo. Id. at 731. The '06 Act initially stalled in the legislature, and the Governor met with the racetrack owners during this time. The Governor then expressed support for the bill on the floor of the legislature. Id. at 725-26. The Governor signed the bill into law the day after it passed, and the racetrack owners sent him a "thank-you" note and a $125,000 campaign contribution a day later. Id. The court reasoned that because there was no evidence of the contents of the meeting, and because the "thank-you" note did not suggest the existence of an agreement, a reasonable juror could not find an explicit quid pro quo. Id. at 731.

However, the court found sufficient evidence of an explicit quid pro quo as to the '08 Act. Id. at 731. That bill passed the legislature easily, but the Governor refused to sign it. The racetrack owners were anxious to have the bill signed, and asked the Governor's staff member if they needed to "put a stronger bit in [the Governor's] mouth!?!" Id. at 726. Instead of signing the bill, the Governor instructed his staff to approach the donors to tell them that "once [they] made the contribution, the act would be signed." Id. at 725. From this, the court reasoned that a rational juror could find that the Governor was aware of the terms of the agreement: a $100,000 contribution in exchange for a signature. Id. at 732.

As with the meeting in Empress Casino , there is no evidence of what was said on any phone call between Melgen and O'Brien. There is no evidence that a phone call with Menendez ever transpired. Given this absence of evidence, there is nothing to view in the light most favorable to the Government. A rational juror could not infer an explicit quid pro quo. See id. ; Inzunza , 638 F.3d at 1025 (finding no explicit quid pro quo despite evidence of campaign contributions and favorable official acts, stating "we know nothing of what transpired at [the defendant's] half-hour meeting with Malone at the 2001 fundraiser").

Similarly, that Menendez checked the balance of the NJDSC account during this time does not demonstrate that Menendez was aware of the terms of the quid pro quo. There is no evidence that he was particularly checking for Melgen's donation, or that he connected the donation to the Brownfield meeting.

The only evidence connecting the contributions to the meeting is that they occurred on the same day. However, "a close-in-time relationship between the donation and the act will not suffice [to prove an explicit quid pro quo ]." Siegelman , 640 F.3d at 1171 ; see Empress Casino , 763 F.3d at 731. In Empress Casino , the court found that a jury could not infer an explicit quid pro quo despite the fact that the political contribution alleged to be a bribe occurred one day after the official act. Similarly, without evidence of any communication between Defendants about the ICSSI contract, or any connection between the Brownfield meeting and the political contribution, even a close temporal relationship is not enough for a jury to infer an explicit quid pro quo.

Viewed in the light most favorable to the Government, none of the other evidence demonstrates an explicit quid pro quo. The Government alleges that a jury may infer an explicit quid pro quo from "context." Specifically, it argues that the jury can infer an explicit quid pro quo because Melgen did not agree to provide the contribution until after Menendez had scheduled the meeting with Brownfield. ECF No. 251, at 6.

The Government has not introduced evidence that Melgen was withholding the contribution other than the timing of the meeting. To resay, even a close temporal relationship is not enough to infer an explicit quid pro quo. In Empress Casino , the government introduced FBI recordings as evidence that the public official was withholding the official act until he received the political contribution. In the recordings, the Governor discussed the racetrack owners' desperation that he sign the '08 Act, and instructed his subordinate to inform the racetrack owners that he would not do so until they made a contribution. 763 F.3d at 731. There was also evidence that the Governor's staff member in fact informed the racetrack owners of the Governor's terms. Id. Conversely, the only evidence indicating that Melgen withheld the contribution is the timing of the Brownfield meeting. When asked for the contribution, Melgen's staff always responded that he would donate the $60,000, rebutting the allegations that the contribution was contingent upon any act by Menendez.

The Government further argues that a jury can infer an explicit quid pro quo from escalation. Specifically, the Government contends that a jury may find an explicit quid pro quo because Menendez advocated more zealously to Brownfield in May 2012 than he had in his earlier, September 2011 meeting. ECF No. 251, at 6. This is not evidence that either Defendant was aware of the terms of the quid pro quo ; other than that both events occurred in close temporal proximity, the Government did not introduce any evidence that the advocacy was related to the political contribution, rather than a continuation of Menendez's earlier failed efforts to persuade Brownfield, part of his broader policy concerns relating to port security, or simply advocating on behalf of a personal friend and political supporter unrelated to the specific contribution.

While unusual official action may be evidence of an explicit quid pro quo in some instances, more than strong advocacy is required. In United States v. Terry , 707 F.3d 607, 616 (6th Cir. 2013), the court stated that the jury could infer that the "unusual behavior [of the public official], along with the other evidence, stemmed from an agreement to use his position as a public official to do [the donor's] bidding." However, in that case there were tape-recorded phone calls in which the donor asked the defendant judge to deny summary judgment in two cases, to which the judge replied "got it." Id. They discussed an upcoming fundraising event on the same call. Id. at 610. The judge then denied both summary judgment motions "[w]ithout reading the motions, without consulting the case files and without relying on the recommendation of anyone-within the court system-who had read the files ...." Id. at 615. There was also evidence that the donor stated that he believed that his donations would afford him special privileges from the judge, "including 'granting a motion so it wouldn't tie a case up.' " Id. (alterations omitted); see id. at 615 (noting that the donor expected special attention "whether it would be a character reference or whether it would be a case").

Here, the official action consisted of Menendez advocating a policy position consistent with a position he had taken years earlier. This is far less unusual than an on-demand denial of summary judgment without any familiarity with the case or consultation of the motion papers. Further, unlike in Terry , there is no evidence here that Defendants discussed the alleged official acts during the relevant time, and no statement by Melgen that he expected to get special privileges as a result of the political contributions. Even if Menendez's renewed interest in the ICSSI contract did originate from a conversation with Melgen, and was intended to further his interests, there is no evidence that it was in any way related to the contribution.

The Government also contends that there is evidence that Defendants concealed their conduct. The Government contends that Menendez's intent to exchange his advocacy for Melgen's political contribution is demonstrated by an email from Menendez staff member Jodi Herman in which she stated that she had to "drag [information about the Brownfield meeting] out of him." This failure to disclose further information to a staff member about the subject of the meeting is not sufficient evidence for a rational juror to infer that Menendez was concealing the information. Further, even if Menendez was withholding the information from his staff, there is no evidence that the reason he was doing so was connected to the $60,000 contribution.

The Government also alleges that Melgen concealed his identity by providing $20,000 through his daughter Melissa. The Government references the circumstance that on the same day that Melgen's daughter donated $20,000 to the NJDSC, she also received a $20,000 check from Melgen's company, VRC. The Government alleges that Melgen made the contribution through an illegal conduit, demonstrating both the concealment of his identity, and also his "willingness to break the law." ECF No. 251, at 6. However, the Government has not introduced any evidence that the check from VRC was reimbursement for the contribution. Further, there is no evidence that such a reimbursement would violate campaign finance laws. And Melgen did nothing to "conceal" the remaining $40,000 in contributions. More importantly, none of this is evidence that would permit a rational juror to infer that the donation was connected with the specific official act-Menendez's meeting with Brownfield.

Finally, the Government argues that an explicit quid pro quo can be inferred from the "defendants' pattern of corrupt activity and concealment, established through a years-long stream of benefits in return for official acts." Id. at 11. However, a rational juror cannot infer that Defendants knew the terms of this alleged quid pro quo simply because they are alleged to have committed bribery in another context. In Empress Casino , the jury was not permitted to infer an explicit quid pro quo as to the '06 Act, despite significant evidence that the defendant had engaged in the exact same conduct two years later with the '08 Act. 763 F.3d 723. Similarly, in United States v. Inzunza , 638 F.3d 1006 (9th Cir. 2011), the jury was not permitted to infer an explicit quid pro quo with regard to one public official, despite substantial evidence against another public official codefendant. Because an explicit quid pro quo requires that the charged defendant be aware of the terms of the precise exchange alleged, general allegations that the defendant was involved in corrupt activity is not sufficient to support such a finding without specific evidence. See Empress Casino , 763 F.3d 723.

In sum, the evidence introduced by the Government shows only a close temporal relationship between the Brownfield meeting and the contributions, communications between Melgen and Menendez's fundraisers about the contributions, that one member of Menendez's staff stated that she had to "drag [information] out of him," and a check from VRC to Melissa Melgen with the notation of "Salary." This evidence, viewed in the light most favorable to the Government, is insufficient to permit a rational juror to find an explicit quid pro quo.

The Court emphasizes that the agreement need not be express, Siegelman , 640 F.3d at 1171, and that a jury may infer a quid pro quo from circumstantial evidence, Carpenter , 961 F.2d at 827. However, no case furnished by the Government or found by this Court has permitted a jury to infer an explicit quid pro quo without factual evidence connecting the quid and the quo. Cf. Empress Casino , 763 F.3d 723 (message delivered to donor that governor would not sign legislation until he received donation); Terry , 707 F.3d 607 (testimony and recorded conversations that donor expected "special attention," and donee judge's denial of summary judgment at donor's request without reading any case files); Siegelman , 640 F.3d 1159 (statement by defendant that donor wanted appointment to executive position in exchange for donation); Inzunza , 638 F.3d 1006 (explicit promises to donor regarding the official acts); United States v. Hill , Nos. 94-10498, 94-10500, 1995 WL 699835, at *2 (9th Cir. Nov. 27, 1995) (testimony and recorded statements that state legislator knew he was "taking [campaign contributions in exchange] for the bill"); United States v. Tomblin , 46 F.3d 1369, 1381 (5th Cir. 1995) (testimony that public official agreed to accept campaign contributions as bribes); United States v. Farley , 2 F.3d 645, 652 (6th Cir. 1993) (testimony that defendants agreed to solicit campaign contributions in exchange for police commission); Carpenter , 961 F.2d 824 (legislator's refusal to meet with lobbyists without first receiving contribution).

Aside from a close proximity in time, the Government has not introduced any evidence connecting the Brownfield meeting to the political contributions, or any evidence that Defendants even discussed the ICSSI contract as part of this alleged explicit quid pro quo. A rational juror could not find that either defendant each knew the terms of the quid pro quo charged in Counts 9 and 10. Defendants' motion for acquittal on Counts 9 and 10 is granted.

ii. Counts 11, 12, and 17: $300,000 to Majority PAC

Counts 11 and 12 charge Defendants Menendez and Melgen, respectively, with agreeing to exchange a $300,000 donation to Majority PAC for advocacy at the highest levels of the Centers for Medicare and Medicaid Services ("CMS") and the Department of Health and Human Services ("HHS") regarding Melgen's $8.9 million billing dispute with CMS. This advocacy culminated in a meeting with then-Acting Administrator of CMS Marilyn Tavvenner in June 2012, and a meeting with then-Secretary of HHS Kathleen Sebelius in August 2012. Count 17 charges the contribution as a thing of value in an honest services fraud scheme.

The $300,000 check was written on June 1, 2012, drawn on the account of Melgen's company, VRC, and delivered to Majority PAC through Menendez fundraiser and friend, Donald Scarinci. GX 201. On June 1, Melgen, Menendez, and Scarinci were at a Menendez for Senate fundraising event (the "Pegasus fundraiser"). Oct. 4, 2017, Tr. at 14; GX 198; GX 200. The next day, Scarinci sent Melgen a flyer describing Majority PAC, which stated that "Majority PAC may directly advocate for candidates [it] support[s]." GX 199.

Menendez had first raised the issue of multi-dosing to CMS in 2009, and again in 2011. Oct. 2, 2017, Tr. at 82; Sept. 27, 2017, Tr. at 138-40, 162. CMS did not change its policy on multi-dosing in response to either of these efforts.

Menendez raised the multi-dosing issue again in 2012. Within a week of the Pegasus fundraiser and Melgen's $300,000 contribution to Majority PAC, Menendez scheduled a meeting with Marilyn Tavenner. Oct. 3, 2017, Tr. at 92, 184. That meeting occurred on June 7. Id. at 109. To prepare for the meeting, Menendez met with Melgen's lawyer and lobbyist, Alan Reider. GX 203.

At the meeting, Menendez asked Tavenner to reexamine CMS's policy regarding multi-dosing. Oct 3, 2017, Tr. at 97-99, 170-71. They discussed multi-dosing generally, and they did not mention Melgen or Lucentis, the medicine Melgen had been multi-dosing. Id. at 98, 167.

Tavenner followed up with Menendez in July and informed him that CMS believed its multi-dosing policy was clear, and that CMS was not going to make any changes. Id. at 99. Menendez replied that he did not agree with her conclusions, and that he would "take it to the next steps." Id. at 100. Tavenner believed this to mean that Menendez would bring the issue to Sebelius. Id. Tavenner testified that this was the only time anyone from Congress brought her an issue and then elevated it to Sebelius. Id. at 101.

Menendez did elevate the issue to Sebelius. Menendez first attempted to directly schedule the meeting with her, but she refused at the advice of her staff. Id. at 179. Menendez then enlisted the help of then-Senate Majority Leader Harry Reid. Oct. 4, 2017, Tr. at 51, 58. At Menendez's request, Reid contacted Sebelius to set up a meeting. Id. at 56-59. After consulting with legal counsel about whether it would be appropriate, Sebelius agreed to meet with Menendez. Oct. 3, 2017, Tr. at 180-81.

The meeting took place in Senator Reid's office, and lasted approximately thirty minutes. Oct. 3, 2017, Tr. at 179, 187. Reid opened the meeting and made some introductory comments, and there was testimony at trial that Melgen's name was mentioned by way of introduction. Oct. 2, 2017, Tr. at 98. Menendez led the substantive discussion, and stated that CMS's multi-dosing policy was unclear and unfair to providers. Oct. 3, 2017, Tr. at 183. Menendez discussed wastage of medicine, a change in multi-dosing rules between 2007 and 2010, and the need for policy clarification. Id. at 199-201. Tavenner and Sebelius did not recall anyone mentioning Melgen's name, and Sebelius testified that they "did not discuss specifically the [Medicare Advisory Committee ("MAC") ]." Id. at 98, 200-01. HHS Employee Jonathan Blum testified that Sebelius explained that "the case was in the administrative process," and that "she had no authority to intervene or change course." Oct. 2, 2017, Tr. at 99. Blum then discussed multi-dosing and billing, and explained that it was CMS policy not to pay twice for a drug purchased only once by a physician. Oct. 3, 2017, Tr. at 49, 201.

There was no mutual resolution at the end of the meeting, and Sebelius testified that the meeting was not satisfactory for anyone. Id. at 187.

Sebelius also testified that it was unusual for her to be involved in a billing dispute, and also unusual for Reid to ask her to meet with another member of Congress. Id. at 188. Blum testified that the meeting stuck out to him because of how angry Menendez became, and because meetings with members of Congress usually concern national policies or something within their own state. Oct. 2, 2017, Tr. at 104. After some brief follow-up, Menendez abandoned his efforts with HHS.

From the evidence introduced at trial, no rational juror could find an explicit quid pro quo. The evidence consists of Defendants' presence at the Pegasus fundraiser, Melgen's June 1 contribution, and Menendez's later advocacy. This, without more, does not meet the heightened nexus requirement that applies to political contributions. See Empress Casino , 763 F.3d 723 ("To hold illegal an [official action] furthering the interests of some constituents shortly before or after campaign contributions are solicited and received 'would open up to prosecution not only conduct that has long been thought to be well within the law, but also conduct that is in a very real sense unavoidable ....' " (quoting McCormick , 500 U.S. at 272, 111 S.Ct. 1807 )).

Importantly, there is no evidence that Defendants actually met at the fundraiser, or, if they did, what if anything they talked about. As in Empress Casino , a single meeting before the official act and political contribution, without more, is not sufficient evidence from which a jury may infer an explicit quid pro quo. See 763 F.3d at 731 ; see also Inzunza , 638 F.3d at 1025 ("[W]e know nothing of what transpired at [Defendant's] half-hour meeting ... at the 2001 fundraiser ....").

The Government again argues that an explicit quid pro quo can be inferred from Melgen's "concealment" of the $300,000 contribution. ECF No. 251, at 8. Here, the Government points to the circumstance that Melgen made the contribution through VRC rather than his personal account. The Government claims that the jury may infer that this is evidence of concealment because "most campaign contributions are made by individuals." Id. However, the Government did not present evidence to show that use of a company's funds to make political contributions is unusual. To the contrary, there is evidence that other companies contributed to Majority PAC that were not associated with Melgen. GX 240.

The Government also argues that a rational juror could infer that Melgen concealed his identity because he earmarked the contribution for the New Jersey Senate race, but "[t]hat earmark ... is absent from Majority PAC's FEC reports." ECF No. 251, at 8. However, the Government did not introduce evidence that Melgen's earmark was designed to evade reporting requirements, or that the FEC would have otherwise included the earmark in its report. Further, to use Melgen's choice of contribution method itself as evidence of concealment raises significant First Amendment concerns. See Citizens United , 558 U.S. at 360, 130 S.Ct. 876 ("By definition, an independent expenditure is political speech ....").

Finally, the Government argues that a jury can infer an explicit quid pro quo from escalation. Similar to its argument with regard to the Brownfield meeting, the Government contends that a jury can infer an explicit quid pro quo because Menendez advocated against CMS's multi-dosing policy more zealously in 2012 than he had in 2009. ECF No. 251, at 9. The Government specifically refers to Menendez's insistence on speaking with Secretary Sebelius in 2012, while he settled for a phone call with a lower-level CMS employee in 2009. The Government claims that the escalation is also demonstrated because Menendez "did not conduct any official action on [Melgen's] CMS dispute for years" before scheduling the meeting with