Gary Johnson Decision

Case: 3:20-cr-00371-JJH Doc #: 243 Filed: 06/26/23 1 of 23.
PageID #: 4915
IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
UNITED STATES OF AMERICA, Case No: 3:20-cr-371
v. Hon. Jeffrey J. Helmick
GARRICK JOHNSON MOTION FOR JUDGMENT OF

ACQUITTAL, OR, IN THE
Defendant. ALTERNATIVE, FOR A NEW
TRIAL ON COUNT 12
Richard Kerger (15864)

4159 Holland-Sylvania Rd., Suite 101
Toledo, OH 43623
PH: (419) 255-5990
FX: (419) 255-5997
rkerger@kergerlaw.com
Gregory M. Gilchrist (97512)

2801 West Bancroft St.
MS 507
Toledo, Ohio 43606
(419) 530-2712
greg.gilchrist.law@gmail.com
ATTORNEYS FOR DEFENDANT
The defendant, Gary Johnson, by and through undersigned counsel, moves this
Court to enter a judgment of acquittal on count 12 of the Superseding Indictment
(R:105). Fed. R. Crim. P. 29. In the alternative, the defense moves for a new trial of
count 12. Fed. R. Crim. P. 33. Mr. Johnson’s conviction on count 12 is contrary to law
and the evidence is insufficient to sustain a conviction.

Case: 3:20-cr-00371-JJH Doc #: 243 Filed: 06/26/23 2 of 23. PageID #: 4916
Table of Contents
I. Background; Scope of Motion .................................................................................. 3
II. The Hobbs Act is Void for Vagueness As Applied to Gary Johnson ..................... 4
A. The Evidence Was Insufficient to Sustain a Conclusion That the $2000 Was
Anything Other Than a Campaign Contribution ............................................... 8
B. There Was Insufficient Evidence From Which to Conclude Beyond a

Reasonable Doubt That Mr. Johnson’s Conduct was Illegal ........................... 11
III. No Rational Trier of Fact Could Find Proof Beyond a Reasonable Doubt of an
Explicit Quid Pro Quo ........................................................................................... 15
IV. Alternatively, the Court Should Grant a New Trial on Count 12 in the Interest
of Justice and Based on the Manifest Weight of Evidence ................................. 20
2
I. Background; Scope of Motion
The defense moved for judgment of acquittal at the close of prosecution
evidence on three grounds.
First, Hobbs Act Extortion Under Color of Official Right does not include mere
bribery, and the government introduced no evidence of actual extortion. This was the
basis of a motion to dismiss by the defense that was incorporated into its oral motion
for judgment of acquittal at trial. [R:184; PageID 3673-3677].
Second, the 18 U.S.C. 1951 is void for vagueness as applied and no reasonable
juror could find that the government proved bribery beyond a reasonable doubt. This
was also the basis of a motion to dismiss that was incorporated by reference at trial.
[R:184; PageID 3677-3681].
Third, outrageous government conduct throughout the investigation deprived
Mr. Johnson of due process. Permitting a conviction to stand in light of the unusual,
clear, and very serious government misconduct risks affirming that misconduct with
the Court’s imprimatur. Specifically, the FBI’s improper threats against minors,
interference with witnesses, improper use and manipulation of government forms,
unfounded threats of criminal prosecution against witnesses to induce them to
withhold testimony before the City Council and this Court, and lack of candor
concerning these activities amount to truly outrageous conduct that ought to shock
the conscience. These due process violations were the basis of motions to dismiss by
the defense which were also incorporated by reference. [R:73, R:212; R219].
3
The Court took these Rule 29 motions under submission and the defense
renewed each of them at the close of defense evidence. The defense now renews each
post-verdict and requests a ruling on each.
This instant memorandum directly addresses only the second basis for
judgment of acquittal – that the Hobbs Act as applied is void for vagueness and that
no rational trier of fact could find proof beyond a reasonable doubt. This argument
most benefits from a more detailed review of the evidence and arguments at trial.
Additionally, Part IV of this motion seeks, in the alternative, a new trial on
Count 12 pursuant to Rule 33.
II. The Hobbs Act is Void for Vagueness As Applied to Gary Johnson
“The standard for determining whether a motion for a judgment of acquittal
should be granted is whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” United States v. Gibson, 409 F.3d 325, 332
(6th Cir. 2005).
The defense recognizes at the outset that the jury in this case was exceptional
for the care, diligence, and seriousness of purpose it brought to deliberations. The
jury deliberated for nearly seventeen hours over the course of three days. Toward the
end of day two the jury had reached a verdict of not guilty on count 5 and felt unable
to reach a unanimous resolution on count 12. After receiving an Allen charge from
the Court, the jury returned on day three to continue deliberations. Eventually, the
4
jurors returned a verdict of guilt on count 12. In doing so, they also delivered a note
to the Court which reads:
Dear Judge Helmick,

It is with a heavy heart that we deliver a verdict of guilty
on count 2 of the indictment of Hobbs Act Extortion Under
Color of Official Right.1 We believe Gary is an honest,
genuine person with good intentions who was caught up in
a bad situation.
Sincerely,
The Jury
[R:240].
The bad situation to which the jury referred no doubt referred to becoming
entangled – as a matter of sheer happenstance – in the waning days of a multi-year
FBI sting which had never targeted Mr. Johnson. As the case agents consistently
acknowledged in their testimony, Gary Johnson was never a part of or targeted by
their operation until January 2, 2020, when Mr. Johnson called the FBI informant –
Nabil Shaheen – into his office to ask about sign locations for his Sheriff’s campaign.
Mr. Johnson knew Mr. Shaheen only in passing as the leader of the Midwest Retailers
Association, a frequent guest and contributor at Toledo and Lucas County
fundraisers, and a person who could help arrange locations to place campaign signs.
1 “Count 2,” by agreement of the Court and parties, referred to Count 12 of the
Superseding Indictment. Because the Superseding Indictment included many counts
against persons having no connection to Mr. Johnson other than serving on the same
political body and having been caught in the same FBI sting, the parties and Court
agreed that reference to higher numbered counts would be confusing or possibly
prejudicial to Mr. Johnson and thus agreed to refer to Count 5 as “Count 1,” and
Count 12 as “Count 2,” in all communications with jurors, including the instructions.
5
Prior to this chance meeting in January 2020, the FBI had no basis to suspect or
investigate any corrupt by Gary Johnson.2
Ultimately, the jury did the best it could with law that has been poorly defined
by the Supreme and Circuit Courts. The line between lawful and constitutionally
2 Testimony of Agent Michael Huber:
A [W]hen we approached [Nabil Shaheen] he provided a list of

names of politicians that he deemed to be corrupt.
Q And Mr. Johnson's name was not on that list, was it?
A It was not, no.
…
A There was no prior contact between Gary Johnson and Nabil
Shaheen at the time [January, 2020] in that two year or year and-
a-half investigation prior to that point.
Q I understand. Okay so we, from your perspective, the
investigation begins in 2018 sometime, right?
A Correct.
Q And so for a period of a year and-a-half, or two years, the
investigation proceeded without any investigation into Gary
Johnson correct?
A Correct.
See also Testimony of Agent Matthew Cromly:
Q Did [Nabil Shaheen] provide you information to aid in your

investigation of public corruption offenses?
A He did, general information.
Q He never mentioned Gary Johnson during that time?
A He did not.
Q And Gary Johnson did not become a part of this investigation until
January 2020; is that correct?
A January 2nd, 2020.
All quotes from the trial in this motion have been made by reference to the real-time
transcripts as produced by Diana Ziegelhofer during the trial. The defense has
ordered official transcripts which should be produced by July 7, 2023. Those
transcripts could not be obtained prior to the filing deadline for this motion, but if the
Court requests, the defense will supplement this filing with citations to the official
transcripts once those are available.
6
protected campaign contributions and illicit bribes is blurred at best. The Supreme
Court generated this problem with the two cases of McCormick and Evans, which
stand in significant and seemingly irresolvable tension. Compare McCormick v.
United States, 500 U.S. 257 (1991) with Evans v. United States, 504 U.S. 255 (1992).
The Sixth Circuit has recognized this tension and noted that the relevant
cases:
do not spell out what kinds of agreements—and what level of

specificity—must exist between the person offering a bribe and the
public official receiving it. And some cases debate how “specific,”
“express” or “explicit” a quid pro quo must be to violate the bribery,
extortion and kickback laws. See, e.g., United States v. Ring, 706 F.3d
460, 466 (D.C.Cir. 2013) (“[C]ourts have struggled to pin down the
definition of an explicit quid pro quo in various contexts.”); United States
v. Siegelman, 640 F.3d 1159, 1171 (11th Cir. 2011); United States v.
Bahel, 662 F.3d 610, 635 n. 6 (2d Cir. 2011); United States v. Whitfield,
590 F.3d 325, 348–54 (5th Cir. 2009).
United States v. Terry, 707 F.3d 607, 612–13 (6th Cir. 2013). “Exactly what effect
Evans had on McCormick is not altogether clear.” United States v. Blandford, 33 F.3d
685, 695 (6th Cir. 1994). Numerous Supreme Court Justices have called for review of
Evans to remediate the distinct lack of clarity about what is criminal in politics.3
Right now, however, this Court, our jury, and Mr. Johnson are left with a mess
that:
• purports to treat campaign contributions differently than non-campaign

contributions, but is not particularly clear about what exactly the difference is;
• distinguishes between explicit and express agreements without fully

explaining what is meant by explicit; and, most importantly,
3See Motion to Dismiss, R:184, PageID 3765, describing varying degrees of opposition
to and concern about the decision in Evans from no fewer than eight Supreme Court
Justices.
7
• fails to establish a standard that would allow a reasonable person to discern

the difference between lawful and constitutionally protected campaign activity
and unlawful corruption.
The trial in this case affirms the defense argument that the Hobbs Act is, as applied
to Gary Johnson, unconstitutionally vague.
A. The Evidence Was Insufficient to Sustain a Conclusion That the
$2000 Was Anything Other Than a Campaign Contribution
This case must be considered as one alleging bribery via campaign
contributions. The Court’s instructions on this point were clear: the first order of
business for the jury was to determine whether the payments were campaign
contributions. To consider the payments as anything other than campaign
contributions, the jury would need to reach a unanimous conclusion that the
government had proven beyond a reasonable doubt a payment was not a campaign
contribution. On the evidence presented, no rational juror could conclude that the
$2000 payment was anything other than a campaign contribution.
The government appears to have recognized this in its closing, when it argued
that “[t]he reality is that Gary Johnson's first instinct in taking the $2,000 cash was
to deposit it into his campaign account without anyone knowing who gave it to him
or what it was for.” Government Closing Statement, June 12, 2023. This concession
by the government should render the thing of value definitively a campaign
contribution under the Court’s instruction that whether the item is a campaign
contribution turns on “whether the payment was offered or received in support of the
defendant’s campaign.” [R:237; PageID 4877]. If Mr. Johnson’s first instinct on taking
8
the money was to deposit it into his campaign account, it follows that the money was
“received in support of the defendant’s campaign” and is a campaign contribution.
The government went a step further in rebuttal:
And a lot of discussion too about campaign contribution. It was a

campaign consideration [sic]. But little acknowledgment of the fact, and
this is in your instructions, that a campaign contribution can be both a
bribe and a campaign contribution. Moreover, a payment doesn't have
to be for a single purpose in order for it to be a bribe.
Government Rebuttal Statement, June 12, 2023.
Moreover, the jury appears to have agreed that it was dealing with a campaign
contribution. The only note sent to the Court during deliberations sought clarification
about the word “understanding” on page 22 of the instructions. [R:239] This section
of the instructions is – according the Court’s own instruction to the jury – only
reached if the jury has concluded that the government failed to prove beyond a
reasonable doubt that the thing of value was something other than a campaign
contribution.4
4 See R:239, Jury Note, which reads: “Legal Question: Is it bribery if; Does
understanding mean agreement?; pg.22 ‘explicit promise or understanding by the
defendant’; Please define understanding by the defendant using the above context.”
The reference is to page 22 of the jury instructions, “Elements of the Offense,
Continued: Second and Third Elements for Campaign Contributions,” which section
begins: “If you are not unanimously convinced that the payment at issue in one or
both of the counts charged was not a campaign contribution, then you must proceed
as though the payment was a campaign contribution.” [R:237; PageID 4878]. This
section is only reached after the jury engages with the instruction on the preceding
page which reads: “For each count charged, you must first determine whether the
payment at issue was or was not a campaign contribution. To do so, you must consider
the evidence presented and determine whether the payment was offered or received
in support of the defendant’s campaign. If, during your deliberations, you are
unanimously convinced the government has proved beyond a reasonable doubt that
the payment at issue in that count was not a campaign contribution, then you will
9
Finally, the evidence at trial ultimately permitted no conclusion other than
that the $2000 cash payment made by Nabil Shaheen to Gary Johnson was a
campaign contribution. It was uncontested that this payment was offered directly in
response to Mr. Johnson’s solicitation of contributions toward a $2000 media buy in
the final week of his sheriff campaign.5 It was also uncontested that in promising the
contribution, Nabil Shaheen referenced both the advertisements the contribution was
continue to the next paragraph. If you are not unanimously convinced, you will
continue to the next page.” Id. at PageID 4877. The jury would have no occasion to
ask the question in R:239 unless it had already concluded it was dealing with a
campaign contribution.
5 Testimony of Agent Michael Huber:

Q: And about a week before (answer) the April 28th election, the
Gary spoke to Nabil on the phone again; is that right?
A That is correct.
Q Okay. And this is where Gary makes his pitch for contributions
to cover a $2,000 media buy for use in the upcoming primary mail
in elections; is that right?
A Correct.
Q And Gary on this call says I'm trying very hard raise some money
right now so I can finish doing this electronic chasing. So every
time a ballet comes out, when happens right now, there's this
service that electronically sends ads to that household so when
you turn your computer on (banner) and you'll see my banner ad
if you know like I had ordered a ballet and the (when) ballet gets
used so does my banner ad so I need to raise -- do you remember
him saying that on that phone call?
A I do.
Q Okay, and this was a request to Nabil Shaheen to help cover
campaign expenses for the upcoming election right?
A Correct.
Q And the total expense was going to be a $2,000 media buy?
A That's what Gary told him yes.
10
intended to support6 and the fact that Gary Johnson would not need to make
additional fundraising calls for this campaign need.7 Finally, it is uncontested that
Johnson called his former campaign treasurer and advisor on campaign finance
issues, Steve Leggett, to tell Leggett that he had received $2000 in cash and to ask
how the money could be deposited to his campaign account without identifying the
donor. There is no way to make any rational sense of this inquiry unless Gary Johnson
believed he was receiving the money in support of his campaign.
All indications are that the government conceded and the jury concluded that
the $2000 payment was a campaign contribution; but, it’s also true that no rational
juror could conclude other than that the $2000 payment was not received as a
campaign contribution.
B. There Was Insufficient Evidence From Which to Conclude Beyond
a Reasonable Doubt That Mr. Johnson’s Conduct was Illegal
With campaign contributions, the government has a special burden in proving
bribery. Because contributions are protected by the First Amendment and are core to
the function of our democracy, it is critical that federal prosecutors not be empowered
to conflate lawful campaign activity with the mere suggestion of corruption. And yet,
6Government Exhibit 19 at 4:39: Nabil Shaheen: “And don't worry about tomorrow.
That's, ah, that's, ah, advertisements. Me and Ali, I'll take care of it. I'11 just, ah, I-I
can't show I'm giving you a lot because, you know, they're going to get on my ass.”
7 Government Exhibit 19 at 5:13: Nabil Shaheen: “You won't have to-you won't have
to call anybody else. We got it taken care of.”
11
this is precisely what the government did in its closing argument. The government
told the jury:
The thing to remember is that the moment someone tells a politician I

am giving you this check or cash or thing of value for your support on
my permit application, they have made explicit their desire to pay to
play, their intention to pay in exchange for that politician's official acts.
And the moment that politician, here, Gary Johnson, accepts it, that
transaction is corrupt. It is a bribe.
Government Closing, June 12, 2023. This dangerously misstates the law and risks
the possibility of prosecuting almost any political candidate at the whim of federal
prosecutors.
“Ingratiation and access are not corruption. They embody a central feature of
democracy—that constituents support candidates who share their beliefs and
interests, and candidates who are elected can be expected to be responsive to those
concerns.” McCutcheon v. Fed. Election Comm'n, 572 U.S. 185, 192 (2014). The courts
cannot allow the line between lawful campaign contributions and illicit corruption to
be blurred as the government did in this case. “[M]oney is constantly being solicited
on behalf of candidates, who run on platforms and who claim support on the basis of
their views and what they intend to do or have done.” McCormick, 500 U.S. at 272.
“To satisfy due process, a penal statute must define the criminal offense [1]
with sufficient definiteness that ordinary people can understand what conduct is
prohibited and [2] in a manner that does not encourage arbitrary and discriminatory
enforcement.” Skilling v. United States, 561 U.S. 358, 402–03 (2010). The Supreme
Court and Circuit Courts continue to struggle with any analytically sound distinction
between lawful campaign finance and illicit payments. Government arguments in
12
this case undercut even the tenuous distinctions that have been offered by the Courts.
In the end, it’s really quite difficult to imagine how an ordinary person could discern
the difference between prohibited and permitted conduct under the facts presented
at Gary Johnson’s trial.
Moreover, it’s not difficult at all to imagine the engine of federal criminal
prosecution engaging in arbitrary and discriminatory enforcement. Nabil Shaheen,
who recently pled guilty to paying bribes, when asked by this Court if he was pleading
guilty because he is in fact guilty, responded: “If I knew this was illegal, I wouldn’t
have done it.”8 This is a man who has worked for the FBI on the anti-corruption sting
for the last five years and whose liberty turns on being fully cooperative with the
government.
The case agents demonstrated similar confusion about the line between plainly
lawful and illicit conduct during trial. The simplicity of approach adopted by the FBI
8 This may sound like an empty “ignorance of the law” claim, which of course would
be no excuse. But it was not. Defense Exhibit 288, which was not admitted during
trial but which is available in JERS, is video record of the FBI’s 2018 debrief of Nabil
Shaheen in which the FBI vetted Shaheen as potential informant. That recording –
in its entirety – captures the confusion that permeated this investigation. Throughout
the recording, over the course of more than an hour, Nabil Shaheen maintains that
he never meant to offer bribes. He is very clear that he makes political contributions
solely to secure goodwill, an activity that is totally protected at law. As would be
expected, Agents Cromly and Huber push back against Shaheen’s description, but
the matter is never resolved. Not only that, but the recording leaves little doubt but
that Nabil Shaheen had a better understanding of lawful campaign conduct than the
anemic and simplistic view maintained by the FBI throughout this investigation. The
FBI perspective is captured by Agent Cromly’s insistence on this recording that
“[p]oliticians can only benefit financially if they’re taking money from people that are
paying bribes.” Def. Ex. 288 at 12:20:05. This is an appallingly erroneous statement
about the core question, and it was made by the lead agent on this investigation.
13
is perhaps most clearly demonstrated by Agent Huber. When asked: “So what [Nabil
Shaheen] was suggesting to Gary [in Government Exhibit 19] is, you are making
campaign calls to cover this $2,000 campaign expense. We've got you covered. You
won't need to call anyone else. Is that right?” Agent Huber replied only: “As previously
stated, we were approaching as a bribe payment.” This answer is both true and
revealing. The FBI did not bother distinguishing between lawful campaign
contributions and illicit bribes. They set up payments and considered them bribes,
full stop. This is why they never bothered to learn their targets campaign slogans or
political priorities:
Q [Gary] ran on a platform that emphasized his experience as a

small business owner; is that right?
A I'm unaware of his actual campaign slogans he utilized to run his
campaign. I was unaware of Gary Johnson at that time.
Q In your investigation did you ever look into his priorities as a
politician?
A I did not, no.
Q Did you ever make yourself aware that he campaigned on a pro
business platform.
A I did not.
Testimony of Agent Huber. Agent Swansinger appeared even less knowledgeable
about campaign contributions, lawful support for political candidates, whether
unions tend to favor pro-labor candidates, and corruption. The investigation and trial
generated little clarity or reason to believe lawful conduct would or could be
distinguished from unlawful conduct.
Ultimately, it is for the prosecution to establish that there are clear and
unambiguous facts from which a jury can conclude the defendant violated the law.
14
The prosecution failed to do that here and the Court should hold the Hobbs Act void
for vagueness as applied to Gary Johnson.
III. No Rational Trier of Fact Could Find Proof Beyond a Reasonable
Doubt of an Explicit Quid Pro Quo
The only consistent and core requirement for proof of bribery through
campaign contributions is an explicit quid pro quo.:
An agreement is satisfied by something short of a formalized and

thoroughly articulated contractual arrangement. But, while an
agreement need not be express, it must be explicit, meaning that the
government must show that the contours of the proposed exchange were
clearly understood by both the public official and the payor, even if the
proposed exchange was not communicated between them in express
terms.
See Final Jury Instructions, R:237, at PageID 4883; see also McCormick v. United
States, 500 U.S. 257, 273 (1991)(“only if the payments are made in return for an
explicit promise or undertaking by the official to perform or not to perform an official
act”).
In this case, there was no evidence from which a rational trier of fact could
conclude beyond a reasonable doubt that there was an explicit quid pro quo. The
$2000 payment was promised in response to a request to help fund a campaign
expense for $2000. When Nabil Shaheen pledged the contribution, he said exactly one
thing that could evidence an explicit quid pro quo:
What I can do is get you a money order, or I give Ali a thousand, and
he'll write you a check for a two thousand, because he's gonna donate a
thousand dollars because you're gonna help out on that. So that will take
care of that for you.
15
Government Ex. 19 at 4:59. Reading this in the light most favorable to the
government, the context of the conversation makes clear that “help out on that” refers
to Gary Johnson’s support for the 5624 Secor SUP. Therefore, this would seem to be
sufficient as evidence of an explicit quid pro quo. If it stood alone.
But it does not stand alone. Gary Johnson replied, “Okay,” and the
conversation continued as follows:
SHAHEEN: You won't have to-you won't have to call anybody else. We
got it taken care of. That ain't much. Really. A couple thousand ain'
nuthin'.
JOHNSON: Okay.
SHAHEEN: What you guys doing for us--appreciate everything. Ah-
JOHNSON: Well, I-I don't want you to think I'm doing it because you're-
you're donating money to my campaign. I'm doing it because it's the
right thing to do. I'm a business-pro business council person, so I want
to make sure that we open businesses up, and not hold ‘em. And Larry
was the only one that wasn't in favor of opening up these-these, ah,
sweepstakes, so now he's having a change of heart, and so that should
take care of it. Uh, Larry, you know- [SC]
Government Ex. 19 at 5:14.
Again, seen in the light most favorable to the prosecution, this could establish
that Gary Johnson became aware during this conversation that Nabil Shaheen was
offering the contribution in exchange for Johnson’s promise of support for the SUP.
Johnson’s immediate disclaimer, however, changes the nature of the conversation
completely. By stating clearly and openly that he will not engage in this sort of
exchange, Mr. Johnson voided any agreement, perceived or actual, between the two
men. And this statement was made when Mr. Johnson was wholly unaware that
anyone other than Mr. Shaheen was listening.
16
Knowledge, without agreement, is insufficient as a matter of law. The
defendant must agree “his official conduct will be controlled by the terms of [a certain]
promise or undertaking.” McCormick, 500 U.S. at 273; United States v. Terry, 707
F.3d 607, 613 (6th Cir. 2013)(“What is needed is an agreement, full stop ….”).9
The only alternative to the conclusion that the evidence was insufficient to
establish an explicit quid pro quo would be to conclude that Gary Johnson’s words
disclaiming any such agreement were disingenuous, deceitful, or empty. This was the
government’s argument in closing: “Gary makes a token protest, talks about being
pro-business, wink, wink, nudge, nudge.”10 But the jury rejected this suggestion. The
jury heard Mr. Johnson on the recording. They heard him interviewed by the FBI
upon his arrest. They were read the transcript of his testimony before the grand jury.
9 This is most likely where the jury erred under the instructions. The note sent by the
jury sought more information about the word, “understanding” on page 22. But that
same note included the crossed-out question: “Does understanding mean agreement?”
[R:239] Because that question was crossed out and thus not asked of the Court, the
Court did not address it. But taken together with the question asked, it is reasonable
to infer that the jury concluded that a momentary understanding, even absent
consent or agreement to the proposed quid pro quo, would be sufficient. It would not.
The defense recognizes this particular analysis of the outcome is too speculative to
form the basis of a judgment of acquittal and does not offer it for that purpose.
Judgment of acquittal is appropriate for the other reasons addressed in this section.
10The defense recognizes that there is no requirement that “the agreement was stated
in express terms, for otherwise the law’s effect could be frustrated by knowing winks
and nods.” Jury Instruction, R:237, PageID 4883. But the Sixth Circuit rule that the
agreement need not be express cannot mean that the agreement need not be explicit.
That it be explicit is binding Supreme Court precedent, McCormick, 500 U.S. at 273,
and also correctly specified in this Court’s instructions. R:237, PageID 4883 (“But,
while an agreement need not be express, it must be explicit, meaning that the
government must show that the contours of the proposed exchange were clearly
understood by both the public official and the payor, even if the proposed exchange
was not communicated between them in express terms.”).
17
And they heard him address them directly on the stand. And after all this they
reached one very clear conclusion: “Gary is an honest, genuine person with good
intentions….” [R:240] This finding is completely at odds with the suggestion that
Gary Johnson was merely making a token protest, winking and nodding through his
agreement to a quid pro quo. The jury concluded Gary was honest. To find this
statement did not void the proposed exchange, the jury would have needed to
conclude Gary was being dishonest.
Ultimately, there must be proof of an unambiguous agreement to exchange a
thing of value for official action. “Explicit, as explained in Evans, speaks not to the
form of the agreement between the payor and payee, but to the degree to which the
payor and payee were aware of its terms, regardless of whether those terms were
articulated.” United States v. Blandford, 33 F.3d 685, 696 (6th Cir. 1994).
Explicit means “[n]ot obscure or ambiguous, having no disguised meaning or
reservation. Clear in understanding.” Blandford, 33 F.3d at 696, n.13 (6th Cir. 1994).
It is not sufficient if the jury concluded that Mr. Johnson had a momentary
understanding that Nabil Shaheen hoped to establish a quid pro quo. The jury would
also need to find an agreement: “while an agreement need not be express, it must be
explicit.” Final Jury Instructions, R:237, at PageID 4883.
Ultimately, “if one thing is clear, it is that an ‘explicit’ promise cannot be
satisfied by implication, as it would be contradictory to hold that a quid pro quo
agreement could be simultaneously ‘explicit’ and ‘implicit.’” United States v.
Benjamin, No. 21-CR-706 (JPO), 2022 WL 17417038, at *9 (S.D.N.Y. Dec. 5, 2022).
18
The agreement, whatever evidence it is predicated on, cannot be ambiguous. “An
explicit quid pro quo must be clear and unambiguous, leaving no uncertainty about
the terms of the bargain.” United States v. Donagher, 520 F. Supp. 3d 1034, 1045
(N.D. Ill. 2021); see also Blandford, 33 F.3d at 696, n.13 (6th Cir. 1994).
And this standard cannot be diluted:
To hold otherwise 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 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).
The line between the everyday business of politics in our system of privately
funded campaigns and bribery is fraught. The only remaining clarity is that there
must be a quid pro quo and it must be explicit. It must be clear. It cannot be
ambiguous. And proof of such an explicit quid pro quo must be beyond a reasonable
doubt.
The evidence adduced at trial falls far short of this necessary and important
standard. The evidence adduced is nothing if not ambiguous. And ambiguity is
incompatible with the requirement of an explicit quid pro quo. The ambiguity of the
situation requires a finding that he is not guilty as a matter of law.
The Supreme Court has held that a Hobbs Act bribery conviction can stand
“only if the payments are made in return for an explicit promise or undertaking by
the official to perform or not to perform an official act.” McCormick v. United States,
500 U.S. at 273. “This formulation defines the forbidden zone of conduct with
19
sufficient clarity.” Id. Anything short of this clarity risks criminalizing the day-to-day
conduct of all political actors in our system of privately financed campaigns. The trial
in this case failed to produce evidence from which a rational trier of fact could find
beyond a reasonable doubt an explicit agreement by Mr. Johnson to accept money in
exchange for official action. The Court should enter a judgment of acquittal.
IV. Alternatively, the Court Should Grant a New Trial on Count 12 in
the Interest of Justice and Based on the Manifest Weight of
Evidence
If the Court does not enter a judgment of acquittal, it should grant a new trial
pursuant to Rule 33. The standard for granting a new trial is “if the interest of justice
so requires.” Id. In this case, the interest of justice requires a new trial because (1)
the “manifest weight of the evidence” adduced at trial establishes that even if Mr.
Johnson were deemed to have accepted a bribe, it was the result of entrapment, and
(2) the “manifest weight of the evidence” cannot support the conclusion that the $2000
payment was anything other than a campaign contribution nor can it support the
conclusion that the evidence established an explicit quid pro quo. See United States
v. Hughes, 505 F.3d 578, 592 (6th Cir. 2007). “A district judge, in considering the
weight of the evidence for purposes of adjudicating a motion for new trial, may act as
a thirteenth juror, assessing the credibility of witnesses and the weight of the
evidence.” Id; see also United States v. Mallory, 902 F.3d 584, 596 (6th Cir.
2018)(“Such a motion calls on the trial judge to take on the role of a thirteenth juror,
20
weighing evidence and making credibility determinations firsthand to ensure there
is not a miscarriage of justice.”).
The Sixth Circuit Pattern Instruction for entrapment makes clear that there
are exactly two elements to this defense: “One is that the defendant was not already
willing to commit the crime. The other is that the government, or someone acting for
the government, induced or persuaded the defendant to commit it.”11 The second
element is plainly established by the evidence. Every aspect of the government’s
allegations against Mr. Johnson was induced by FBI informant Nabil Shaheen. And,
there is not one iota of evidence from trial that suggests Mr. Johnson was already
willing to accept bribes prior to becoming entangled in this sting operation. Indeed,
the jury seems to have reached precisely this conclusion when it wrote that “Gary is
an honest, genuine person with good intentions who was caught up in a bad
situation.”
The only thing the jury was missing to acquit on this basis – as it must under
the Sixth Circuit pattern instruction12 – was the pattern instruction. The defense did
not request this instruction; accordingly, the defense is not alleging error on the part
of the Court in failing to give the instruction. Rather, the defense seeks only to point
out that had this instruction been requested and given, the manifest weight of the
11Sixth Circuit Pattern Instruction 6.03; see also Mathews v. United States, 485 U.S.
58, 62-63 (1988); United States v. Nelson, 922 F.2d 311, 317 (6th Cir. 1990).
12Id. (“Consider all the evidence, and decide if the government has proved that the
defendant was already willing to commit the crime. Unless the government proves
this beyond a reasonable doubt, you must find the defendant not guilty.”).
21
evidence supports an acquittal on Count 12. This is a basis for a new trial pursuant
under Federal Rule of Criminal Procedure 33.
The arguments set forth for a judgment of acquittal in Parts I and II of this
motion support also support a new trial if the Court does not grant the motion for
acquittal. The standard for Rule 33 is importantly different than that for Rule 29:
[A Rule 33 motion] differs from a motion under Rule 29, which

challenges the sufficiency of the evidence. Rule 29 asks whether “any
rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt,” Jackson v. Virginia, 443 U.S. 307, 319, 99
S.Ct. 2781, 61 L.Ed.2d 560 (1979)—not whether the trial judge himself
believes the manifest weight of the evidence supports the verdict, see
Hughes, 505 F.3d at 592–93. So while Rule 29 requires the court to view
the evidence in a light most favorable to the prosecution, id. at 592, Rule
33 does not.
United States v. Mallory, 902 F.3d 584, 596 (6th Cir. 2018). If the Court does not see
fit to enter a judgment of acquittal on those grounds, it should in the alternative order
a new trial in the interests of justice because the manifest weight of evidence does
not support the verdict.
22
Respectfully submitted,
s/Rick Kerger
Richard Kerger (15864)
4159 Holland-Sylvania Rd.,
Suite 101
Toledo, OH 43623
PH: (419) 255-5990
FX: (419) 255-5997
rkerger@kergerlaw.com
s/Gregory Gilchrist
2801 W. Bancroft St.
MS 507
Toledo, Ohio 43606
Tel: (419) 530-2712
Email:
Attorneys for Defendant
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of Motion for Judgment of Acquittal or
New Trial was filed this 26th day of June, 2023. Notice of this filing will be sent by
operation of the Court’s electronic filing system to all parties indicated on the
electronic receipt.
Respectfully submitted,
s/Greg Gilchrist
2801 W. Bancroft St.
MS 507
Toledo, Ohio 43606
Tel: (419) 530-2712
Email:
Attorney for Defendant
23

Gary Johnson Decision

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Gary Johnson Decision

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Case: 3:20-cr-00371-JJH Doc #: 243 Filed: 06/26/23 1 of 23.

IN THE UNITED STATES DISTRICT COURT

UNITED STATES OF AMERICA, Case No: 3:20-cr-371

v. Hon. Jeffrey J. Helmick

GARRICK JOHNSON MOTION FOR JUDGMENT OF

Richard Kerger (15864)

Gregory M. Gilchrist (97512)

ATTORNEYS FOR DEFENDANT

Court to enter a judgment of acquittal on count 12 of the Superseding Indictment

and the evidence is insufficient to sustain a conviction.

I. Background; Scope of Motion .................................................................................. 3

B. There Was Insufficient Evidence From Which to Conclude Beyond a

I. Background; Scope of Motion

The defense moved for judgment of acquittal at the close of prosecution

evidence on three grounds.

for judgment of acquittal at trial. [R:184; PageID 3673-3677].

[R:184; PageID 3677-3681].

Third, outrageous government conduct throughout the investigation deprived

interference with witnesses, improper use and manipulation of government forms,

unfounded threats of criminal prosecution against witnesses to induce them to

post-verdict and requests a ruling on each.

Additionally, Part IV of this motion seeks, in the alternative, a new trial on

Count 12 pursuant to Rule 33.

“The standard for determining whether a motion for a judgment of acquittal

(6th Cir. 2005).

to the Court which reads:

Dear Judge Helmick,

entangled – as a matter of sheer happenstance – in the waning days of a multi-year

acknowledged in their testimony, Gary Johnson was never a part of or targeted by

Association, a frequent guest and contributor at Toledo and Lucas County

investigate any corrupt by Gary Johnson.2

2 Testimony of Agent Michael Huber:

A [W]hen we approached [Nabil Shaheen] he provided a list of

See also Testimony of Agent Matthew Cromly:

Q Did [Nabil Shaheen] provide you information to aid in your

stand in significant and seemingly irresolvable tension. Compare McCormick v.

do not spell out what kinds of agreements—and what level of

• purports to treat campaign contributions differently than non-campaign

• distinguishes between explicit and express agreements without fully

• fails to establish a standard that would allow a reasonable person to discern

to Gary Johnson, unconstitutionally vague.

A. The Evidence Was Insufficient to Sustain a Conclusion That the

$2000 Was Anything Other Than a Campaign Contribution

This case must be considered as one alleging bribery via campaign

contributions. To consider the payments as anything other than campaign

$2000 payment was anything other than a campaign contribution.

by the government should render the thing of value definitively a campaign

“received in support of the defendant’s campaign” and is a campaign contribution.

The government went a step further in rebuttal:

And a lot of discussion too about campaign contribution. It was a

Government Rebuttal Statement, June 12, 2023.

Finally, the evidence at trial ultimately permitted no conclusion other than

response to Mr. Johnson’s solicitation of contributions toward a $2000 media buy in

5 Testimony of Agent Michael Huber:

believed he was receiving the money in support of his campaign.

B. There Was Insufficient Evidence From Which to Conclude Beyond

a Reasonable Doubt That Mr. Johnson’s Conduct was Illegal

With campaign contributions, the government has a special burden in proving

told the jury:

The thing to remember is that the moment someone tells a politician I

democracy—that constituents support candidates who share their beliefs and

between lawful campaign finance and illicit payments. Government arguments in

at Gary Johnson’s trial.