Filed: 1/23/2019 12:27 PM

Clerk
Marion County, Indiana

STATE OF INDIANA ) INTHE MARION SUPERIOR COURT

)SS: CRIMINAL DIVISION, ROOM FOUR
COUNTY OF MARION )

STATE OF INDIANA )

V. )

DANIEL TANOOS ) CAUSE NO. 49G04-1809—FC-032285

Findings of Fact and Conclusions of Law

The Court having considered bn'efing, evidence and argument related to Defendant’s

Motion to Dismiss makes the following findings of fact and conclusions of law.

I. Findings 0f Fact

1) The State filed this cause on September 24, 2018 charging the defendant with

three (3) counts of Bribery under Indiana Code § 35-44.1-1-2(a)(4)1 .

2) In each 0f the bribery counts the State alleges that the Defendant, a public servant,

solicited, accepted, or agreed to accept property, that he was not authorized by law to accept, to

control the performance 0f an act related to his function as a public servant on three (3) separate

occasions.

3) The Probable Cause Affidavit sets forth a course of conduct by the defendant, a

public servant, with Doug Tischbein, an ESG employee and vendor doing business With the Vigo

County School Corporation (“VCSC”), in Which he requests dinner, tickets, donations, favors

and then he recommends t0 the VCSC School Board that ESG should be awarded a

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At the hearing on December 19, 2018, the State moved to amend the Information to correct the code citation of
on the Information to Indiana Code § 35-44.1—1—2(a)(2) and the State’s motion was granted by the Court.

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contract/business and the Board always followed the defendant’s recommendation. ( I can add

the specific emails/etc t0 support each count if you would like.)

4) ESG is a guaranteed energy savings contractor headquartered in Newburgh,

Indiana with an Indianapolis office location. During the time period charged the Indianapolis

office was located at 8910 Purdue Road, Suite 200 or 3905 Vincennes Road, Suite 505.

5) The Defendant was the Superintendent 0f VCSC. As Superintendent, he would

recommend a vendor to be awarded contracts by the VCSC School Board. The defendant always

recommended ESG and the VCSC School Board always followed his recommendation.

II. Conclusions of Law

1) As the moving party 0n the Motion to Dismiss, the Defendant bears the burden 0f

showing as a matter 0f law that the Charging Information and Probable Cause Affidavit have

insufficiently pled the crimes alleged and do not state an offense.

2) At this stage, the facts alleged in the Charging Information are generally taken as

true, though the Defendant may offer evidence that the facts alleged do not constitute a crime.

State v. King, 502 N.E.2d 1366, 1369 (Ind. Ct. App. 1987).

3) The Court has discretion t0 consider evidence upon a motion t0 dismiss? Ind.

Code § 35-34-1-8(a) & (f); see also State v. Fettig, 884 N.E.2d 341, 345 (Ind. Ct. App. 2008).

However, that discretion is not absolute and issues 0f fact are properly the province of the jury.

See Ceaser v. State, 964 N.E.2d 91 1, 919 (Ind. Ct. App. 2012) (statutory defenses are for the

jury); State v. Gill, 949 N.E.2d 848, 850-51 (Ind. Ct. App. 201 1)(distinguishing Fettig on the

grounds that it decided a narrow issue of school discipline and holding dismissal inappropriate

where the State has alleged facts sufficient t0 constitute an offense).

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Neither party presented additional evidence at the December 19, 2018 hearing.

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 4) Defendant claims that Counts II and III should be dismissed due to a lack of both

subject matter and personal jurisdiction in violation of Indiana Code § 35-32-2-1-(a).

5) The State must prove venue by a preponderance of the evidence at trial and

circumstantial evidence may be sufficient to establish proper venue. Wurster v. State, 715

N.E.2d 341, 348 (Ind. 1999).

6) In Wurster, the Court reiterated, as it had in Kindred v. State, 540 N.E.2d 1161,

1166 (Ind. 1989), that venue may be challenged by pretrial motion. However, the proper motion

is a motion to transfer rather than a motion to dismiss. Id. The Court, however, has considered

the venue challenge as presented by the defense in its pretrial motion.

7) Accepting the facts alleged in the probable cause affidavit and information as

true, the bribery charges arise from the interactions between defendant and Tischbein, an ESG

employee. During the time frame of the charges in this cause, Tischbein worked from two

Indianapolis offices, first from 8910 Purdue Road, Suite 200, Indianapolis, and subsequently at

3905 Vincennes Road, Suite 505, Indianapolis. The communication that is the subject of the

bribery solicitation and acceptance between Tischbein and the defendant regarding the charged

offenses occurred over email, as alleged in the probable cause affidavit. Tischbein’s office is

located in Indianapolis and in accordance with Indiana Code § 35-32-2-1(b) and § 35-32-2-1(j),

Marion County is an appropriate venue in this matter. Accordingly, Defendant’s Motion to

Dismiss Counts II and III for lack of jurisdiction is hereby DENIED.

8) Defendant next argues that Counts I-III should be dismissed because the charging

information does not state facts that constitute a criminal offense pursuant to Indiana Code § 35-

34-1-4-(a)(5). In its brief, defendant argued that the State must plead a quid pro quo and that the

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facts in the probable cause affidavit and information do not constitute a criminal offense, citing

Winn v. State, Wurster v. State and McDonnell v. United States in support of their position.

9) In his brief, the defendant argued that the State has charged the defendant with a

“generalized bribe” theory which is not supported under Indiana law. “An essential element of

the offense of bribery is a quid pro quo.” Winn v. State, 722 N.E.2d 345, 347 (Ind.Ct.App.

1999), citing Wurster v. State, 708 N.E.2d 587, 594 (Ind.Ct.App. (1999), aff’d by (1999) Ind.,

715 N.E.2d 341, r’hrg denied. The defendant further argued that the United States Supreme

Court held in McDonnell that bribery statutes must not be read so broadly that “nearly anything a

public official accepts – from a campaign contribution to lunch-counts as a quid; and nearly

anything a public official does- from arranging a meeting to inviting a guest to an event-counts

as a quo.” McDonnell v. U.S. 136 SCt. 2355, 2372 (2016) (citation omitted).

10) The State countered that it has met the requirements of Indiana Code § 35-34-1-2

by alleging facts sufficient in the probable cause affidavit and that each count of bribery tracked

the language of the statute, including additional factual allegations.

11) In support of its position, the State cited the McDonnell opinion in which the

Supreme Court addressed the quid pro quo “element”,

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. Nor must the public official in fact intend to perform
the “official act,” so long as he agrees to do so. A jury could, for example, conclude that an
agreement was reached if the evidence shows that the public official received a thing of value
knowing that it was given with the expectation that the official would perform an “official act” in
return.
Id. at 2371.

Federal courts have interpreted the aspect of “agreement” undergirding a quid pro quo

arrangement as synonymous with specific intent rather than a requiring an explicit agreement.

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See United States v. Ring, 706 F.3d 460, 468 (DC Cir. 2013). “When…a public official is

charged with soliciting a bribe, the evidence must show that the official conveyed an intent to

perform official acts in exchange for personal gain.” Id. “The line between legal lobbying and

criminal conduct is crossed…when a gift is given with intent to influence an official act…” Id.

(internal citations omitted).

Lastly, the State argued, in its brief and oral argument, that the facts in this case can be

distinguished from Wurster, in that the State has charged the bribery counts with specificity.

The indictment in Wurster charged bribery over a period of three (3) years and the acts alleged

were “support or promote legislative measures and decisions resulting in economic gain.” The

information in this cause alleges a specific date for each count, and the probable cause affidavit

contains the email communication content, dates and times to support the date and criminal

conduct. In addition, the State has alleged a specific act, the defendant’s recommendation to

award contract and/or continued business with ESG.

12) A charging information must allege the elements of the crime such that the

accused is given sufficient notice of the nature of the charges against him so that he may

anticipate the proof and prepare a defense in advance of trial. See Ind. Const. Art. 1, § 13;

Ind.Code § 35-34-1-2; Smith v. State, 465 N.E.2d 702, 704 (Ind. 1984). The State is not required

to include detailed factual allegations in the charging instrument, though it may choose to do so.

Richardson v. State, 717 N.E.2d 32, 51 (Ind. 1999).

13) The Court may consider both the charging information and the probable cause

affidavit when determining whether the State has alleged sufficient facts to meet its burden. See

e.g., Woods v. State, 980 N.E.2d 439, 443-444 (Ind. Ct. App. 2012).

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 14) In Counts I, II, and III, the State tracks the language of the bribery statute under

Indiana law. Additionally, the probable cause affidavit sets forth sufficient facts in support of

each count to meet its burden under Indiana Code § 35-34-1-2.

15) Indiana’s bribery statute does not follow the language nor the definition of

“official act” as defined in §201(a)(3) as applied in the McDonnell opinion. The bribery statute

under Indiana Code § 35-44.1-1-2(a) uses the phrase “an act related to the employment or

function of a public servant”.

16) In Winn, the Indiana Court of Appeals found that there was sufficient evidence to

sustain Winn’s conviction and held

[that] to convict Winn of bribery, the state had to prove that Winn conferred money upon Lopez,
which Lopez was not authorized to accept, in an attempt to influence Lopez's actions as Jay
County Prosecutor…. The only remaining element, therefore, which the State was required to
prove was that Winn was attempting to influence Lopez to act in a particular manner in his
capacity as prosecutor. The state had to prove that Winn gave the money to Lopez so that Lopez
would not prosecute him for gambling. An essential element to the offense of bribery is a quid
pro quo. Wurster v. State (1999) Ind.App., 708 N.E.2d 587, 594 aff'd by (1999) Ind., 715 N.E.2d
341, reh'g denied. During the trial, the state offered the diamond shaped letter which Lopez
received from Winn. The printed words were sufficient to lead a reasonable trier of fact, in this
case the jury, to infer that Winn was attempting to influence Lopez's actions.
Id. at 347.

17) Indiana’s bribery statute nor the case law require that a quid pro quo is an element

that must be plead by the State in the Information, but it is a matter for the trier of fact to

determine.

18) Defendant’s Motion to Dismiss Counts I-III because the charging information

does not state facts that constitute a criminal offense shall be DENIED.

19) Lastly, the Defendant raised an argument that Counts I- III should be dismissed

due to lack of specificity in violation Indiana Code § 35-34-1-4(a)(4). The defendant contends

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that this lack of specificity means that he has not been adequately informed of the charges and is

unable to prepare a defense. Additionally, the defendant argued that the State charged an overly

broad interpretation of the bribery statute and for those reasons the information does not state the

bribery offense with sufficient certainty.

20) In general, a criminal charge may only allege one criminal act. Ind. Code § 35-34-

1-2. Duplicity occurs where two or more separate offenses are alleged in a single charge. State

v. Weil, 89 Ind. 286, 289 (1883). However, our courts have held that where multiple acts

comprise a related scheme or continuous course of conduct, and any duplicity that exists does not

harm the defendant, the charges are proper. See Vest v. State, 930 N.E.2d 1221,1226 (Ind. Ct.

App. 2010); Riehle v. State, 823 N.E.2d 287, 296 (Ind. Ct. App.2005); and Chambers v. State, 10

N.E.2d 735, 736 (1937).

21) The federal courts have also examined the implications of duplicity when

multiple acts of a scheme or continuing course of conduct have occurred, and have held that in

determining whether improper duplicity presents a potential harm to the defendant, the court

must review the charges to determine whether any of four main principles are implicated: (1)

double jeopardy concerns, (2) adequate notice to the defendant of the acts alleged against him,

(3) that he may be prejudiced by evidentiary rulings at trial, and (4) jury unanimity in reaching a

verdict. United States v. Berardi, 675 F.2d 894, 899 (7th Cir. 1982). The court initially

recognized that “[t]he line between multiple offenses and multiple means to the commission of a

single continuing offense is often a difficult one to draw. The decision is left, at least initially, to

the discretion of the prosecution.” Id. at 898, citing United States v. Tanner, 471 F.2d 128, 138

(7th Cir.), cert. denied, 409 U.S. 949, 93 S.Ct. 269, 34 L.Ed.2d 220 (1972); United States v.

Alsobrook, 620 F.2d 139, 142 (6th Cir.), cert. denied, 449 U.S. 843, 101 S.Ct. 124, 66 L.Ed.2d

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51 (1980). The court then went on to find that where the defendant was charged with one count

of obstruction of justice for his multiple actions over a four (4) month period to influence the

testimony of a witness against him, the charge was not improperly duplicitous. Id. at 899.

Because the defendant had adequate notice of the three (3) specific alleged acts of intimidation

or obstruction and the jury instruction given as to the necessity of the jury to be unanimous as to

at least one of the alleged acts was sufficient, the count was not fatally duplicitous. Id.

22) The State has charged the Defendant with the following:

In count I, the Information alleges that Tanoos, on or about August 24, 2013, did solicit,

accept, or agree to accept any property, that is: food and/or beverages, except property the person

is authorized by law to accept, with intent to control the performance of an act, that is:

recommendation to award contract and/or continued business with ESG to the Vigo County School

Board related to the employment or function of a public servant, that is: Superintendent of Vigo

County School Corporation.

In count II, it is alleged that Tanoos, on or about July 11, 2014, did solicit, accept, or agree

to accept any property, that is: food and/or beverages, except property the person is authorized by

law to accept, with intent to control the performance of an act, that is: recommendation to award

contract and/or continued business with ESG to the Vigo County School Board related to the

employment or function of a public servant, that is: that is: Superintendent of Vigo County School

Corporation.

In count III, the Information alleges that Tanoos, on or about August 10, 2014, did solicit,

accept, or agree to accept any property, that is: tickets and/or beverages, except property the person

is authorized by law to accept, with intent to control the performance of an act, that is:

recommendation to award contract and/or continued business with ESG to the Vigo County School

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Board, related to the employment or function of a public servant, that is: Superintendent of Vigo

County School Corporation.

23) The Court finds that there is no duplicity in Counts I-III and they have been

charged with specificity to advise the defendant of his alleged criminal actions. Accordingly, the

Motion to Dismiss Counts I-III based on lack of stating offense with sufficient certainty is

hereby DENIED.

WHEREFORE, Defendant’s Motion to Dismiss is hereby DENIED in accordance with

this ORDER.

_________________________
Lisa Borges, Judge
Marion Superior Court 4

Dated:__________________

Distribution
Terry Curry/Janna Skelton
Marion County Prosecutor’s Office

James Voyles/Jennifer Lukemeyer

Counsel for Defendant Tanoos