Tuesday, May 30, 2006

Judge Recommends Denial of Motions to Dismiss in Thompson Case

A federal magistrate judge has recommended Chief Judge Rudolph Randa deny two motions to dismiss felony counts facing Georgia Thompson, the DOA employee charged with inflating bid scores so a $750,000 state travel contract would be awarded to Adelman Travel.

See the recommendation.

Thompson's attorney, Stephen Hurley, has ten days to file an objection to the recommendation, according to the filing. The trial, however, is set to begin on June 5.

In a brief supporting the motion to dismiss, Hurley wrote that the indictment failed to allege private gain from the contract award.

Magistrate Judge Patricia Gorence disagreed: "Several district courts in this circuit have held that providing political advantage to another as a result of the misuse of one's public position, and thus gaining personal job security, can satisfy the requirement of personal gain."

Gorence disagreed with Hurley's assertion that Thompson had no authority to award a contract, and therefore could not have misapplied funds. "(T)he evaluation committee all but signs the contract awarded," wrote Gorence.

Hurley also argued that because the contract went to the lowest bidder, that there was no misapplication of funds. Gorence disagreed, writing "it is irrelevant whether the state recognized a benefit." Gorence further stated that the actions do not have to be for illegitimate purposes. "(I)f it were for illegitimate purposes, it would be covered by the prohibitions against embezzlement, stealing, obtaining by fraud, or conversion," Gorence wrote.

Hurley also asserted that the mail and wire fraud statue was unconstitutionally vague as applied to Thompson.

Gorence sided with the government, saying that the indictment alleges misconduct under the statute. Citing case law, Gorence wrote that "criminal liability under the mail and wire fraud statutes – particularly under an intangible-rights theory – attaches to the misuse of one's fiduciary position for personal gain."

In a brief supporting the dismissal of count two of the indictment Hurley argued the statute Thompson is charged under "is a form of petty treason legislatively contrived in slapdash fashion," that conflicts with the treason clause of the U.S. Constitution.

Gorence wrote that the honest services fraud is a different, and far less severe crime than treason, and that the statue does not conflict with the treason clause.

-- By David A. Wise

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