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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

UNITED STATES OF AMERICA, ) Case No. 1:20-cr-77

)
Plaintiff, )
) Judge Timothy S. Black
v. )
)
LARRY HOUSEHOLDER, )
)
Defendant. )

DEFENDANT LARRY HOUSEHOLDER’S MOTION TO DISMISS THE INDICTMENT

Defendant Larry Householder moves the Court, under Rules 7(c) and 12(b)(3)(B)(v) of

the Federal Rules of Criminal Procedure, to dismiss the Indictment. The Indictment fails to set

forth the essential elements of the crime charged, RICO conspiracy, and it fails to state an

offense. As a result, the Court should dismiss the Indictment in its entirety.

A memorandum in support of this motion is attached.

Dated: February 1, 2022 Respectfully submitted,

/s/ Steven L. Bradley

Steven L. Bradley (0046622)
Mark B. Marein (0008118)
MAREIN & BRADLEY
526 Superior Ave., Suite 222
Cleveland, Ohio 44114
Phone: (216) 781-0722
Email: [email protected]

Nicholas R. Oleski (0095808)

MCCARTHY, LEBIT, CRYSTAL
& LIFFMAN CO., LPA
1111 Superior Avenue East, Suite 2700
Cleveland, Ohio 44114
Phone: (216) 696-1422
Email: [email protected]

Counsel for Defendant Larry Householder

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CERTIFICATE OF SERVICE

I certify that the foregoing was electronically filed on February 1, 2022. Notice of this

filing will be sent to all parties by operation of the Court’s electronic filing system. Parties may

access this filing through the Court’s system.

/s/ Steven L. Bradley

Steven L. Bradley (0046622)

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

UNITED STATES OF AMERICA, ) Case No. 1:20-cr-77

)
Plaintiff, )
) Judge Timothy S. Black
v. )
)
LARRY HOUSEHOLDER, )
)
Defendant. )

MEMORANDUM IN SUPPORT OF
DEFENDANT LARRY HOUSEHOLDER’S MOTION TO DISMISS THE INDICTMENT

I. INTRODUCTION

The government’s allegations are insufficient. In a more than 130-paragraph Indictment,

the government tries to allege that Defendant Larry Householder and the other Defendants

engaged in a conspiracy to violate the RICO statute. In doing so, it settles for legal conclusions—

not facts. And it hangs its hat on salacious allegations of bribery against the former Speaker of

the Ohio House based on political contributions that a corporation made to an issue advocacy

group, Generation Now. The government’s allegations though are insufficient to state an offense.

Nor did the government learn from the Supreme Court’s admonitions. The Court has

recently and repeatedly warned federal prosecutors that they are not the arbiters of good

government for state officials: “Federal prosecutors may not use property fraud statutes to set

standards of disclosure and good government for local and state officials.” Kelly v. United States,

140 S. Ct. 1565, 1574 (2020) (cleaned up). To prevent this prosecutorial overreach, the Supreme

Court has further explained that prosecutors may only prosecute bribery cases when they can

show an explicit quid pro quo agreement between the payor and the payee. Absent this

requirement, it “would open to prosecution not only conduct that has long been thought to be

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well within the law but also conduct that in a very real sense is unavoidable so long as election

campaigns are financed by private contributions or expenditures, as they have been from the

beginning of the Nation.” McCormick v. United States, 500 U.S. 257, 272 (1991). Here, the

government emphasizes its bribery allegations but without, as the Supreme Court requires,

alleging an explicit quid pro agreement between Householder and FirstEnergy Corp.1 Without

those allegations, the bribery allegations and predicate offenses cannot stand. And without those,

the rest of the RICO conspiracy charge falls too.

The Court should dismiss the Indictment.

II. LEGAL STANDARD

The government’s motive in this case is clear: prosecute Householder based on headline-

grabbing accusations of bribery, packaged in an inscrutable RICO conspiracy Indictment. What

the Indictment does not make clear is how Householder’s conduct amounts to a federal crime.

This deficient charging document cannot pass muster under Federal Rule of Criminal

Procedure 7(c), which requires the government to begin every prosecution with “a plain, concise

and definite written statement of the essential facts constituting the offense charged.” Fed. R.

Crim. P. 7(c). Nor does it satisfy Federal Rule of Criminal Procedure 12. Fed. R. Crim. P.

12(b)(3)(B)(v). Even considering all of the allegations scattered throughout the document, it fails

to state an offense under any of the criminal statutes the government attempts to invoke. See,

e.g., United States v. Pirro, 212 F.3d 86, 95 (2d Cir. 2000). And although the pleading standard

with respect to criminal indictments may be slight, the government must still allege “facts which

in law constitute an offense; and which, if proved, would establish prima facie the defendant’s

1
Because FirstEnergy entered into a deferred prosecution agreement with the government, United States v.
FirstEnergy Corp., No. 1:21-cr-86 (S.D. Ohio), ECF No. 2, Householder uses “FirstEnergy” instead of the
pseudonym the government used in the Indictment (Company A Corp.).

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commission of that crime.” United States v. Superior Growers Supply, Inc., 982 F.2d 173, 177

(6th Cir. 1992); see Pirro, 212 F.3d at 93 (“for an indictment to fulfill the functions of notifying

the defendant of the charges against him and of assuring that he is tried on the matters considered

by the grand jury, the indictment must state some fact specific enough to describe a particular

criminal act, rather than a type of crime.”).

III. ARGUMENT

A. The Indictment does not plead a RICO enterprise.

“To be convicted of RICO conspiracy, a defendant must intend to further an endeavor

that, if completed, would satisfy all elements of a RICO offense.” United States v. Nicholson,

716 F. App’x 400, 405 (6th Cir. 2017) (citing Salinas v. United States, 522 U.S. 52, 65 (2009)).2

Therefore, the government must prove: “(1) the existence of an enterprise which affects interstate

or foreign commerce; (2) the defendant’s association with the enterprise; (3) the defendant’s

participation in the conduct of the enterprise’s affairs; and (4) that the participation was through

a pattern of racketeering activity.” United States v. Fowler, 535 F.3d 408, 418 (6th Cir. 2008). If

the alleged enterprise is an established legal entity, such as a corporation or partnership, the fact

that the entity has a legal existence easily satisfies the enterprise element. See 18 U.S.C.

§ 1961(4). An “association-in-fact” enterprise—which is what the government alleges here—is

different. See id. While it need not exhibit any particular form or organization, an association-in-

fact must be “an entity separate and apart from the pattern of activity in which it engages . . . .”

2
Recently, the Sixth Circuit held “to convict a defendant under § 1962(d), the government may prove an
agreement to form an enterprise (rather than an existing enterprise) so long as the agreement, if completed, would
satisfy all the elements of § 1962(c).” United States v. Rich, 14 F.4th 489, 493 (6th Cir. 2021). Rich, though, is
immaterial. For one, the government here alleges the existence of an enterprise, not an agreement to form one. See
Indictment ¶ 1 (alleging that the enterprise “constituted an ongoing organization whose members functioned as a
continuing unit for a common purpose of achieving the objectives of the enterprise, and the enterprise engaged in,
and its activities affected, interstate commerce”) (Doc. 22) (emphasis added). In any event, the government must
prove either the existence of an enterprise, as that term is defined in the statute, or an agreement to form an
enterprise. Either way, the government must prove an enterprise.

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United States v. Turkette, 452 U.S. 576, 583 (1981). And that means “at least three structural

features” must be present: “a purpose, relationships among those associated with the enterprise,

and longevity sufficient to permit those associated to pursue the enterprise’s purpose.” Boyle v.

United States, 556 U.S. 938, 946 (2009). Importantly, the association’s common purpose “must

be separate from the pattern of racketeering activity in which it engages.” Compound Prop.

Mgmt., LLC v. Build Realty, Inc., 462 F. Supp. 3d 839, 857 (S.D. Ohio 2020) (quoting Frank v.

D’Ambrosi, 4 F.3d 1378, 1386 (6th Cir. 1993)).

The government does not plead any facts to support these structural features. See

Indictment ¶¶ 1, 33 (Doc. 22). It identifies the Defendants as allegedly being members of the

association-in-fact enterprise and then states, in a circular fashion, that their purpose was to

“achiev[e] the objectives of the enterprise.” Id. ¶ 1. More though is required. The reason is

simple. “RICO . . . is not a conspiracy statute. Its draconian penalties are not triggered just by

proving conspiracy.” Fitzgerald v. Chrysler Corp., 116 F.3d 225, 228 (7th Cir. 1997) (Posner, J.)

(emphasis added). The term “‘[e]nterprise’ . . . connotes more.” Id. And that “more” is nowhere

to be found in this Indictment. See also Compound Prop. Mgmt., LLC v. Build Realty, Inc., 462

F. Supp. 3d 839, 866 (S.D. Ohio 2020) (dismissing RICO conspiracy count when the allegations

showed the alleged enterprise’s only common purpose “is their purported common desire to

participate in the allegedly fraudulent scheme”). “Were the rule otherwise, competitors who

independently engaged in similar types of transactions with the same firm could be considered

associates in a common enterprise.” In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 375 (3d

Cir. 2010); see also In re Lupron Mktg. & Sales Practices Litig., 295 F. Supp. 2d 148, 174 (D.

Mass. 2003) (“Without [these limitations] any group of persons sharing a common occupation,

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e.g., urologists and lawyers, and a similar motive, e.g., greed, could be held to constitute a RICO

enterprise.”).

Instead, the government simply alleges, in the manner and means section of the

Indictment, that “Householder’s Enterprise”—without specifying any particular Defendant—

engaged in various activities. Indictment ¶¶ 34-53 (Doc. 22). Although when pleading the acts in

furtherance of the conspiracy, see id. ¶¶ 54-132, the government was marginally more specific, it

still failed to allege the relationships the Defendants shared or how their activities were

coordinated over time to permit them to achieve their purpose. Indeed, “similarity of goals and

methods does not suffice to show that an enterprise exists; what is necessary is evidence of

systemic linkage, such as overlapping leadership, structural or financial ties, or continuing

coordination.” Libertad v. Welch, 53 F.3d 428, 443 (1st Cir. 1995).

Even if Householder could fairly be forced to piece together the government’s enterprise

theory from the rest of the Indictment, it would still fail. The government’s allegations describe

no relationship joining all the alleged associates, nor any coordinated activity among them,

towards an alleged common purpose. Instead, the allegations at most set forth a “hub-and-spoke”

structure—with FirstEnergy occupying the hub and Defendants the spokes—with no common

rim linking the individual spokes together. See In re Ins. Brokerage Antitrust Litig., 618 F.3d

300, 327 (3d Cir. 2010) (the “critical issue” in a hub-and-spoke conspiracy “is how the spokes

are connected to each other”) (quoting Total Benefits Planning Agency, Inc. v. Anthem Blue

Cross & Blue Shield, 552 F.3d 430, 436 (6th Cir. 2008)). “Most courts have found that

complaints alleging hub-and-spoke enterprises fail to satisfy the RICO enterprise requirement.”

In re Pharm. Indus. Average Wholesale Price Litig., 263 F. Supp. 2d 172, 183 (D. Mass. 2003)

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(collecting cases). Here, though, the government makes no allegations that the members of the

alleged enterprise coordinated their efforts to achieve any commonly shared purpose.

The government’s failure to allege these facts is fatal to the Indictment.

B. The Indictment does not plead a pattern of racketeering activity.

The RICO charge fails for a separate reason as well: the Indictment does not properly

plead a “pattern of racketeering activity.” 18 U.S.C. § 1962(c). The government says a “pattern”

existed because Defendants conspired “with each other others” to commit various federal and

state crimes. Indictment ¶ 33 (Doc. 22). The “fundamental characteristic of a conspiracy is a joint

commitment to an ‘endeavor which, if completed, would satisfy all of the elements of [the

underlying substantive] criminal offense.’” Ocasio v. United States, 136 S. Ct. 1423, 1429

(2016) (citation omitted). Thus, to plead a conspiracy to commit a particular crime, the

government must allege that “each conspirator . . . specifically intended that some conspirator

commit each element” of the crime in question. Id. (emphasis added). Here, the government

identifies statutes that Defendants and their alleged co-conspirators purportedly agreed to violate.

Indictment ¶ 33 (Doc. 22). But the government fails to plead an agreement to commit each of the

elements of the alleged offense. Instead, all it does is simply list statutes the Defendants

allegedly violated or agreed to violate. See id.

The predicate offenses the government alleges form a pattern of racketeering fall in two

different groups. The first are the offenses that we will generically refer to as alleging bribery.

And the second are money-laundering offenses. The government’s allegations are insufficient on

both.

1. Despite repeated rebukes by the Supreme Court, federal prosecutors continue to use

vague federal criminal laws to impose “standards of ... good government” on “local and state

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officials.” McNally v. United States, 483 U.S. 350, 360 (1987); see also Skilling v. United States,

561 U.S. 358 (2010); McDonnell v. United States, 136 S. Ct. 2355 (2016). Most recently, the

Court admonished the federal government from using federal criminal law “to enforce (its view

of) integrity in broad swaths of state and local policymaking.” Kelly v. United States, 140 S. Ct.

1565, 1574 (2020). To prevent this overreach, the Supreme Court has strictly limited federal

bribery law to “quid pro quo corruption—the exchange of a thing of value for an ‘official act.’”

McDonnell, 136 S. Ct. at 2372.

This case thus fits pattern of federal prosecutors using criminal law to enforce their view

of state policymaking. But as in McNally, Skilling, McDonnell, and Kelly, the federal

government here oversteps its role in seeking to impose its standards of good government on

Ohio. Even worse, the government does so by alleging that campaign contributions,3 which are

protected by the First Amendment, formed an illegal bribe. In doing so though, the government

fails to comply with the Supreme Court’s and Sixth Circuit’s caselaw.

The government fails to sufficiently allege an explicit quid pro quo agreement. This is an

essential element to the honest services wire fraud, Hobbs Act extortion, and state law bribery

predicate offenses. See McCormick v. United States, 500 U.S. 257, 273 (1991); see also United

States v. Terry, 707 F.3d 607, 612 (6th Cir. 2013). Because “[t]he right to participate in

democracy through political contributions” is protected by the Constitution,” McCutcheon v.

FEC, 572 U.S. 185, 191 (2014), the Supreme Court has explained that a political contribution

can only be a bribe if “payments are made in return for an explicit promise or undertaking by the

official to perform or not to perform an official act” and the official agrees that “his official

3
It matters naught that the funds were contributed to a 501(c)(4) entity, Generation Now. The First
Amendment still gives corporations the right to spend money and contribute money to issue advocacy groups. See
Citizens United v. FEC, 558 U.S. 310, 364 (2010).

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conduct will be controlled by the terms of the promise or the undertaking.” McCormick, 500 U.S.

at 273 (emphasis added). More particularly, the statutes “prohibit[] quid pro quo corruption —

the exchange of a thing of value for an ‘official act.’” McDonnell v. United States, 136 S. Ct.

2355, 2372 (2016). Or, as Judge Sutton succinctly put it: “What is needed is an agreement, full

stop.” Terry, 707 F.3d at 613. That is, the government must show “the payments were made in

connection with an agreement, which is to say ‘in return for’ official actions under” the

agreement. Id.

Applying these holdings, the government needed to allege in its Indictment facts that

show (1) an explicit quid pro quo agreement in which (2) Householder agreed to perform a

specific official action on a specific and focused matter (3) and that his conduct would be

controlled by the terms of the quid pro quo agreement (4) in exchange for political contributions.

See also Evans v. United States, 504 U.S. 255, 268 (1992) (requiring an “agreement to perform

specific official acts”); Huff v. FirstEnergy Corp., 972 F. Supp. 2d 1018, 1034 (N.D. Ohio 2013)

(“Where, as here, the alleged bribe is a campaign contribution, the facts must show that the

contribution was given ‘in return for a specific official action . . . No generalized expectation of

some future action will do.’”).

The government though does not allege facts to meet these requirements. True, the

government alleges that it was “part of the conspiracy” that the Defendants “agreed to receive

and accept millions of dollars in bribe payments from Company A, including bribe payments

paid through GENERATION NOW, in return for HOUSEHOLDER taking specific official

action for the benefit of Company A, namely to help enact into law legislation that would go into

effect and save the operation of the Nuclear Plants.” Indictment ¶ 41 (Doc. 22); see also id. ¶ 47.

But these are just legal conclusions—not the “essential facts constituting the offense charged.”

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Fed. R. Crim. P. 7(c); cf. Huff, 972 F. Supp. 2d at 1034-35 (finding allegation that a judge took

improper official acts in exchange for a bribe was a legal conclusion unsupported by any facts).

The government does not allege any meetings, conversations, or other communications between

Householder (the alleged payee) and FirstEnergy Corp. (the alleged payor).

What’s more, the government tries to make up for this shortcoming by alleging what the

other Defendants, but not Householder, said. E.g., Indictment ¶¶ 77, 100-103. Suffice it to say,

what the other Defendants said or understood does nothing to show whether Householder entered

into an explicit quid pro quo agreement.

And the government’s specific allegations about Householder’s conduct fall short too. It

alleges that Householder told Defendant Longstreth, in response to Longstreth’s question about

FirstEnergy “need[ing] the money,” “we only put in what they need.” Indictment ¶ 99. It also

alleges that, at a press conference held after the Ohio House introduced HB 6, Householder

explained about the origins of the legislation: “it’s based on our brains. For me, I look back, for

two years I’ve had this in my head, and I’ve had various versions on that white board over the

last several months.” Id. ¶ 106. These allegations do not offer any rejoinder. They do not show

that Householder entered a quid pro quo agreement. At best, they show that Householder took

political positions that benefitted FirstEnergy, which contributed campaign contributions to

Householder and Generation Now.

To be sure, the government alleges that Householder (allegedly through Generation Now)

received campaign contributions, but that does not make out a bribery charge.4 “A donor who

4
The government also makes much of the fact that Generation Now, an entity established under section
501(c)(4) of the Internal Revenue Act, was not required to disclose its donors. See Indictment ¶ 75 (alleging
Generation Now received “secret payments”); id. ¶ 38. But “unlike Super PACs, 501(c)(4) organizations are not
legally obligated to publicly disclose the names of their donors or the amounts of the donations” except to the IRS
with respect to donations more than $5,000. NorCal Tea Party Patriots v. Internal Revenue Serv., 2016 WL

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gives money in the hope of unspecified future assistance does not agree to exchange payments

for actions. No bribe thus occurs if the elected official later does something that benefits the

donor.” Terry, 707 F.3d at 613. For this reason, it is of no consequence that, for example,

Generation Now received contributions shortly before the November 2018 general elections

(Indictment ¶ 93) or shortly after the Ballot Campaign submitted a referendum petition to the

Ohio Attorney General (Indictment ¶ 122). See also 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.”); United States v. Siegelman, 640 F.3d 1159, 1171 (11th

Cir. 2011) (“No generalized expectation of some future favorable action will do. The official

must agree to take or forego some specific action in order for the doing of it to be criminal under

§ 666. 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.”).

Nor does the government allege that any specific official action that Householder took

was linked to a specific contribution, which McDonnell and Terry require. McDonnell, 136 S. Ct.

at 2371 (requiring “the jury to determine whether the public official agreed perform an ‘official

act’ at the time of the alleged quid pro quo”) (emphasis added); Terry, 707 F.3d at 613 (holding

that it is a “statutory requirement” that “the payments were made in connection with an

agreement, which is to say ‘in return for’ official actions under it”). The closest the government

comes is its allegation that “Householder’s Enterprise agreed to receive and accept millions of

dollars in bribe payments from Company A, including bribe payments paid through

GENERATION NOW, in return for HOUSEHOLDER taking specific official action for the

8202966, at *3 (S.D. Ohio Nov. 22, 2016). There are no limits to the amounts that a person may contribute to a
501(c)(4). Id. at *4 (noting that, under the tax code, a 501(c)(4) organization can accept unlimited contributions from
all types of donors, including individuals).

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benefit of Company A, namely to help enact into law legislation that would go into effect and

save the operation of the Nuclear Plants.” Indictment ¶ 41. But the specific official actions the

government alleges Householder performed (crafting legislation, creating House committees,

and voting on HB 6) were actions Householder performed years after Generation Now received

its first contribution from FirstEnergy. See Indictment ¶ 60 (alleging that Generation Now

received $1 million in contributions from FirstEnergy in 2017); accord Compl. ¶ 47 (chart

showing contributions to Generation Now) (Doc. 5).

McDonnell and Terry do not permit this kind of attenuated causation. They require the

government must “[f]irst . . . identify” a “specific and focused” matter that “is ‘pending’ or ‘may

by law be brought’ before a public official.” McDonnell, 136 S. Ct. at 2368, 2372 (emphases

added). Then, the government must prove that the official either made or agreed to make “a

decision or t[ake] an action ‘on’ that” matter “at the time of the alleged quid pro quo.” Id. at

2368, 2371 (emphasis added); see also id. at 2374 (noting that if the “testimony reflects what

Governor McDonnell agreed to do at the time he accepted the loans and gifts from Williams,

then he did not agree to make a decision or take an action on any of the three questions or

matters described by the Fourth Circuit”) (emphasis added). An official cannot agree to take

action on a “specific and focused” matter at the time of the alleged quid pro quo unless that

matter was identified at that time. See id. at 2371 (“It is up to the jury, under the facts of the case,

to determine whether the public official agreed to perform an “official act” at the time of the

alleged quid pro quo.”); id. at 2365 (“the offense is completed at the time when the public

official receives a payment in return for his agreement to perform specific official acts”) (quoting

Evans v. United States, 504 U.S. 255, 268 (1992)).

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Likewise, the government’s bribery allegations also fall short to the extent the they are

based on the “bribes” that were allegedly paid to a “Ballot Campaign insider for information.”

Indictment ¶¶ 125, 127 (Doc. 22). To prove private-sector honest services fraud, “the prosecution

must prove only that the defendant intended to breach his fiduciary duty, and reasonably should

have foreseen that the breach would create an identifiable economic risk to the victim.” United

States v. Frost, 125 F.3d 346, 369 (6th Cir. 1997); accord Skilling v. United States, 561 U.S. 358,

365, 130 S. Ct. 2896, 2905 (2010) (“[T]he vast majority of cases involved offenders who, in

violation of a fiduciary duty, participated in bribery or kickback schemes.”). The government

though does not allege the existence of any such duty or a breach of it. See Indictment ¶¶ 124-

125, 127. Again failing its task to plead the essential elements of the offense.

In the end, the government’s bribery allegations are not sufficient under the law.

2. The second (and only remaining) group of predicate offenses that should be dismissed

are the money-laundering predicate offenses. These offenses depend on the bribery predicates

surviving, as money laundering requires a defendant to, among other things, conduct transactions

involving “specified unlawful activity.” 18 U.S.C. § 1956(a)(1), (2), (3); id. § 1957(a). The

money-laundering statute defines “specified unlawful activity” by referencing the RICO’s statute

definition of “racketeering activity.” § 1957(c)(7). Thus, if the bribery predicates do not survive,

neither can the money laundering ones. See United States v. Cavin, 39 F.3d 1299, 1307 (5th Cir.

1994) (“The government presented no evidence that the rental payments were proceeds of

criminal activity, an essential element of the offense.”).

C. The State-law predicate offenses should be dismissed.

Even if the Court does not dismiss the Indictment, the Court should dismiss the State-law

predicate offenses the Defendants allegedly conspired to commit. The Indictment alleges two

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such offenses: “multiple acts of bribery under Ohio Revised Code § 3517.22(a)(2)” and

“multiple acts of bribery, chargeable under Ohio Revised Code § 2921.02.” Indictment ¶ 33

(Doc. 22). Both should be dismissed.

1. The Court should dismiss the Ohio Rev. Code § 3517.22(A)(2) predicate5 for

federalism concerns. The Ohio statute only permits a prosecution if a complaint is “filed with the

Ohio elections commission under section 3517.153 of the Revised Code.” Ohio Rev. Code

§ 3517.22(C). This is a condition precedent for prosecution. Id. (“Before a prosecution may

commence under this section …”); see also Coast Candidates PAC v. Ohio Elections Comm’n,

543 F. App’x 490, 492 (6th Cir. 2013) (“No person can be prosecuted for violating Section

3517.22 unless a complaint first has been filed with the Commission.”). The government does

not allege that it has filed any such complaint with the Commission, and, thus, under the plain

terms of the statute, the government may not seek to circumvent Ohio law. See United States v.

Genova, 333 F.3d 750, 759 (7th Cir. 2003) (vacating RICO conviction based on federal

government’s “novel use” of a state statute because it “deprive[d]” the defendant “of fair

warning to put that statute to such a novel use in order to secure his conviction for violating

RICO”); United States v. Fernandez, 722 F.3d 1, 30 (1st Cir. 2013) (affirming district court’s

judgment of acquittal when the state-law bribery law that supported Travel Act charge was

repealed). This is especially so because the government, to prove the Travel Act violation, must

show the state law was violated. See United States v. Smokoff, No. 93-2363, 1995 U.S. App.

LEXIS 4206, at *13 (6th Cir. Feb. 28, 1995) (“proof of the commission or an attempted

commission of a Federal or state defined criminal offense is an essential element of a Travel Act

5
The government alleges that the Defendants violated the Travel Act, 18 U.S.C. § 1952, by using interstate
facilities to carry on an “unlawful activity.” Under the Travel Act, an “unlawful activity” includes “bribery … in
violation of the laws of the State in which committed or of the United States.” § 1952(b)(2).

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conviction”) (quoting United States v. Finazzo, 704 F.2d 300, 307 (6th Cir. 1983)). The

government cannot prove a violation of Ohio Rev. Code § 3517.22 because it did not comply

with the statute’s requirements. As a result, the Court should dismiss this predicate offense.

2. The Court should also dismiss the Ohio Rev. Code § 2921.02 predicate because Ohio

law does not recognize conspiracy to commit bribery under Ohio Rev. Code § 2921.02. “A

person can be convicted of conspiracy only if he conspires to commit one of the enumerated

offenses stated in R.C. 2923.01.” State v. Trice, 2008-Ohio-2930, ¶ 16 (Ohio Ct. App.). That

section of the Revised Code omits any mention of bribery or § 2921.02. For this reason, a person

in Ohio cannot be convicted of conspiracy to commit bribery. Of course, the Indictment here

alleges a RICO conspiracy; that is, agreements to violate the various predicate offenses. But

because a person cannot conspire to commit bribery under § 2921.02, a person cannot conspire

to violate the RICO statute by conspiring to commit bribery under § 2921.02.

Householder acknowledges that at least one court, in a decision that does not bind this

Court, disagreed with this argument. In United States v. Dimora, the court denied the defendant’s

motion to dismiss the indictment and found that even if Ohio does not recognize conspiracy to

commit bribery, the government there “sufficiently allege[d] the substantive crime of bribery

under § 2921.02.” 829 F. Supp. 2d 574, 587 (N.D. Ohio 2011). Unlike in Dimora, however, the

government does not sufficiently allege the substantive crime of bribery under § 2921.02. And,

in any event, the Dimora court’s analysis is wrong. The RICO statute only permits a state law to

support a racketeering charge if the “bribery” offense “is chargeable under State law and

punishable by imprisonment for more than one year.” 18 U.S.C. § 1961(1)(A) (emphasis added).

Conspiracy to commit bribery is not chargeable under Ohio law. See Ohio Rev. Code § 2923.01.

And, as the Seventh Circuit explained in Genova, the federal government cannot utilize the

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RICO statute to advance novel theories of state law, which is what the Court would be doing in

permitting the government to proceed on a conspiracy theory not recognized in Ohio state courts.

333 F.3d 750, 759 (7th Cir. 2003). Dimora did not recognize these authorities and arguments

and, for those reasons, is not persuasive.

At bottom, Ohio state law bribery cannot constitute racketeering activity. The Court

should dismiss it as a predicate offense.

IV. CONCLUSION

For these reasons, the Court should dismiss the Indictment.

Dated: February 1, 2022 Respectfully submitted,

/s/ Steven L. Bradley

Steven L. Bradley (0046622)
Mark B. Marein (0008118)
MAREIN & BRADLEY
526 Superior Ave.
Suite 222
Cleveland, Ohio 44114
Phone: (216) 781-0722
Email: [email protected]
[email protected]

Nicholas R. Oleski (0095808)

MCCARTHY, LEBIT, CRYSTAL
& LIFFMAN CO., LPA
1111 Superior Avenue East
Suite 2700
Cleveland, Ohio 44114
Phone: (216) 696-1422
Email: [email protected]

Counsel for Defendant Larry Householder

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