Case: 3:20-cr-00371-JGC Doc #: 69 Filed: 08/12/21 1 of 9.

PageID #: 483

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO
WESTERN DIVISION

UNITED STATES OF AMERICA, Case No. 3:20 CR 371

Plaintiff, JUDGE CARR

MOTION TO DISMISS COUNTS

-vs- 5 AND 12

Richard Kerger (0015864)

GARRICK JOHNSON, 4159 Holland-Sylvania Rd., Suite 101
Toledo, OH 43623
Defendant. PH: (419) 255-5990
FX: (419) 255-5997
rkerger@kergerlaw.com

David Klucas (0041188)

1900 Monroe Street, Suite 107
Toledo, Ohio 43604
PH: (419) 255-1102
FX: (419) 255-1415
Davek@buckeye-access.com
Attorney for Defendant Garrick Johnson

Pursuant to Rule 12(b)(3)(B), Defendant Garrick Johnson, through counsel, respectfully

requests an Order from this Court dismissing Counts 5 and 12 of the indictment. As grounds for

this motion, Mr. Johnson says both counts fail to plead a crime, and Count 5 charges multiple

potential crimes in a single count. He maintains the requested relief is necessary to preserve his

rights guaranteed by the 5th, 6th, and 7th Amendments to the United States Constitution.

A supporting Memorandum is attached.

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Respectfully Submitted,

/s/ Richard Kerger

Richard Kerger

/s/ David Klucas

David Klucas
Attorneys for Defendant Garrick Johnson

Memorandum

Mr. Johnson is one of four defendants charged in a multi-count indictment. Count 1

charges him with Conspiring with his co-defendants to violate the Hobbs Act by Extortion Under

Color of Official Right, 18 U.S.C. §1951. Counts 5 and 12 charge Mr. Johnson with substantive

Hobbs Act violations. The charges arise out of Mr. Johnson’s primary election campaign for

Lucas County Sheriff in 2020. At the time he was running for sheriff, Mr. Johnson was a sitting

Toledo Councilman.

In relevant part, the indictment charges Mr. Johnson as follows:

GENERAL ALLEGATIONS

At all times relevant to this Indictment

1. Toledo, Ohio City Council (City Council) was the legislative

branch of city government. Legislative authority in the city was
vested in a twelve-member City Council. Six members of City
Council were elected at-large and six from districts. Each member
served four-year terms. TYRONE RILEY represented District 1
and YVONNE HARPER represented District 4. GARRICK
"GARY" JOHNSON and LARRY SYKES were at large
representatives.

2. KEITH MITCHELL was a licensed attorney working in Toledo,

Ohio and acted on behalf of YVONNE HARPER.

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3. Businessman 1 was a local Toledo business owner who needed

City Council's approval to open an internet cafe.

4. Co-conspirator 1 was a Toledo community activist and associate

of YVONNE HARPER

5. City Council was authorized to enact ordinances and resolutions

relating to city services, tax levies, appropriating and borrowing
money, licensing and regulating businesses and trades, and other
municipal activities. Often, City Council considered and voted on
zoning changes and “special use permits” (SUPS) for local
businesses. These requests were evaluated by various departments
or committees before approval and were typically discussed and
considered at three public hearings: the City Plan Commission
meeting, the Zoning and Planning Committee meeting, and full
City Council meeting, where the requests were approved or
rejected by vote of the members. The City Plan Commission
meeting consisted of a panel of appointed citizens. After a SUP
was evaluated at the City Plan Commission meeting, that body
forwarded their evaluation to the Zoning and Planning Committee.
At the Zoning and Planning Committee meeting, which consisted
of certain members of the City Council, the SUP request was
further evaluated at a public hearing, whereupon a recommendation
was forwarded to the full City Council for approval, disapproval,
or with no recommendation. Ultimately, a SUP must pass City
Council to be approved. If the SUP is forwarded with
recommendation for approval, a simple majority is sufficient;
however, if the SUP is recommended for disapproval, there must
be super majority of nine to approve the measure.

. . .

COUNT 5
(Hobbs Act Extortion Under Color of official Right, 18 U.S.C.
§1951)

The Grand Jury further charges:

14. Paragraphs 1 through 5 of this Indictment are re-alleged and

incorporated by reference as if fully set forth herein.

15. Beginning in or around January 2020 and continuing through

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March 2020, in the Northern District of Ohio, Western Division,

Defendant GARRICK “GARY” JOHNSON did knowingly
obstruct, delay, and affect, and attempt to obstruct, delay, and
affect, in any way and degree commerce and the movement of
articles and commodities in commerce by extortion; that is,
JOHNSON obtained property not due him or his office, namely
checks from Source 2 and locations to place JOHNSON’s
campaign signs, with his/her consent, under color of official right.

All in violation of Title 18, United States Code, Section 1951.

. . .

COUNT 12
(Hobbs Act Extortion Under Color of Official Right, 18 U.S.C.
§1951)

The Grand Jury further charges:

28. Paragraphs 1 through 5 of this Indictment are re-alleged and

incorporated by reference as if fully set forth herein.

27. In or around April 2020, In the Northern District of Ohio,

Western Division, Defendant GARRICK “GARY” JOHNSON did
knowingly obstruct, delay, and affect, and attempt to obstruct,
delay, and affect, in any way and degree commerce and the
movement of articles and commodities in commerce by extortion;
that is, JOHNSON obtained property not due him or his office,
namely cash from Source 2 and Businessman 1, with his/her
consent under color of official right.

All in violation of Title 18, United States Code, Section 1951.

. . .

18 U.S.C. §1951 provides in relevant part:

§1951. Interference with commerce by threats or violence

(a) Whoever in any way or degree obstructs, delays, or affects

commerce or the movement of any article or commodity in
commerce, by robbery or extortion or attempts or conspires so to
do, or commits or threatens physical violence to any person or

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property in furtherance of a plan or purpose to do anything in

violation of this section shall be fined under this title or imprisoned
not more than twenty years, or both.

(b) As used in this section –

. . .

(2) The term “extortion” means the obtaining of property from

another, with his consent, induced by wrongful use of actual or
threatened force, violence, or fear, or under the color of official
right.

. . .

Whether the allegations in an indictment plead an offense is a question of law. U.S. v.

Superior Growers Supply, Inc., 982 F.2d 173, 177 (6th Cir. 1992). An indictment is

constitutionally adequate if it contains the elements of the offense charged, fairly informs the

accused of the charge against which he must defend, and enables him to plead prior jeopardy.

Hamling v. U.S., 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974). To be legally

sufficient, the indictment must allege facts which constitute an offense and which, if proved,

establishes a prima facia case. U.S. v. Superior Growers Supply, Inc., 982 F.2d 173, 177 (6th Cir.

1992). It is generally sufficient if the indictment states the offense using the words of the statute

itself, but it must be accompanied with a statement of facts to inform the accused of the specific

offense with which he is charged. Hamling, supra, at 117-118, 94 S.Ct. 2887, 41 L.Ed.2d 590.

To prevent criminalizing ordinary political activity by elected officials, the Government

must plead a clear agreement for a quid pro quo. As the Supreme Court explains, “campaigns

must be run and financed,” and candidates “constantly” solicit campaign funds “on the basis of

their views and what they intend to do or have done.” McCormick v. U.S., 500 U.S. 257, 272,

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111 S.Ct. 1807, 114 L.Ed.2d 307 (1991). Legislators do not commit a federal crime “when they

act for the benefit of constituent or support legislation furthering the interests of some of their

constituents, shortly before or after political contributions are solicited and received from those

beneficiaries.” Id. Instead, there must be an “explicit” agreement that the legislator’s “official

conduct will be controlled by the terms of the promise or undertaking.” Id. at 273, 111 S.Ct.

1807, 114 L.Ed.2d 307; U.S. v. Terry, 707 F.3d 607, 612 (6th Cir. 2013); U.S. v. Blandford, 33

F.3d 685, 696 (6th Cir. 1994). In this context, “explicit” means a clear understanding of the terms

of agreement between them. Blandford, supra, at 696 and n. 13. Requiring an explicit quid pro

quo to transform otherwise lawful campaign contributions and political activity into a bribe is

essential to our system. A contrary rule criminalizes conduct that is inherent in any campaign for

office. McCormick, supra, at 272, 111 S.Ct. 1807, 114 L.Ed.2d 307.

The Hobbs Act criminalizes interference with interstate commerce by extortion and

defines extortion as obtaining property from another, with his consent, under color of official

right. 18 U.S.C. §1951(a)(b)(2). In the context of campaign contributions, a Hobbs Act

violation requires proof of payments made in return for an explicit promise by the official to

perform or not to perform an official act. U.S. v. Abbey, 560 F.3d 513, 516 (6th Cir. 2009)

(internal citations omitted). A Hobbs Act offense requires an explicit promise by the official in

return for contributions. McCormick, supra, at 273, 111 S.Ct. 1807, 114 L.Ed.2d 307; Evans v.

U.S., 504 U.S. 255, 268, 112 S.Ct. 1881, 119 L.Ed.2d 57 (1992).

The allegations in Count 5 and 12 fall far short of informing Mr. Johnson of the charges.

Both counts mirror the language of the statute with no meaningful deviation, but that alone is not

always enough. The referenced and incorporated paragraphs 1-5 are wholly unconnected to the

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remaining allegations in Counts 5 and 12. The pivotal operative facts demonstrating extortion

under color of right are not alleged in the indictment. At minimum, the motivation for

Businessman 1 and Source 2 to give checks and sign locations must be alleged.

Equally absent from the indictment is any specific pleading of a quid pro quo between

Mr. Johnson and anyone, or an express agreement by Mr. Johnson that his official conduct as a

councilman will be controlled by whatever they purportedly gave him. A specific, explicit, quid

pro quo is an element of the offense charged. Abbey, supra, at 516 (internal citations omitted).

Utilizing only statutory language in an indictment is only constitutionally sufficient when the

statute incorporates all of the elements of the offense. Hamling, supra, at 117, 94 S.Ct. 2887. 18

U.S.C. §1951 does not contain language detailing a quid pro quo or an explicit agreement to be

bound in exchange for property of another. On this element, the statute is silent, so the

indictment must plead specific facts to prove this element of the offense. There is no agreement

between Mr. Johnson and either Source 2 or Businessman 1 alleged. The operative facts

constituting the offense are not pleaded. Without these facts, the Court cannot conclude a prima

facia case is made, and Counts 5 and 12 should be dismissed.

Duplicity

Count 5 charges Mr. Johnson with multiple potential offenses in a single count. Count 5

charges Mr. Johnson with extorting under color of right more than one check and more than one

campaign sign location. “An indictment is duplicitous if it sets forth separate and distinct crimes

in one count.” U.S. v. Davis, 306 F.3d 398, 415 (6th Cir. 2002). The primary danger of a

duplicitous indictment is that a jury might return a guilty verdict on a single count without all 12

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jurors agreeing that the defendant committed either of the offenses charged within that count.

U.S. v. Savoires, 430 F.3d 376, 380 (6th Cir. 2005). Other elements of prejudice on a defendant

from a duplicitous indictment include insufficient notice of the charges against him, error in the

shaping of evidentiary rulings and exposure to double jeopardy. Duncan, supra at 415; U.S. v.

Kakos, 483 F.3d 441, 443-444 (6th Cir. 2007).

The general allegations of “checks” and “locations” implies multiple transactions,

increasing the likelihood of a non-unanimous verdict. The separate claims within the count

making focusing the defense difficult. There is too much in a single count to provide meaningful

notice. It is unclear where jeopardy may attach. Count 5 is clearly duplicitous and should be

dismissed.

Respectfully Submitted,

/s/ Richard Kerger

Richard Kerger

/s/ David Klucas

David Klucas
Attorneys for Defendant Garrick Johnson

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Certification

This shall certify that a copy of the forgoing was sent this 12th day of August, 2021, to all counsel
of record via the Court’s Electronic Filing System.

/s/ David Klucas

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