This document is a motion to dismiss an indictment against Sergeant Robert Breach for two counts of accepting illegal gratuities. The motion argues that the indictment should be dismissed for failure to state an offense because 1) Sergeant Breach does not meet the definition of a "public official" under the relevant statute, and 2) Sergeant Breach did not perform any "official acts" during the alleged criminal activity. Specifically, the motion contends that Sergeant Breach's role as a local police officer does not make him a representative of any federal agency, and his actions at a local bar and in accessing a local police database were as a private citizen, not in any official capacity.

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UNITED STATES DISTRICT COURT
FOR THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Criminal Case No.: 08-224-JR
UNITED STATES OF AMERICA, )
Plaintiff, ) MOTION TO DISMISS
) INDICTMENT PURSUANT TO
v. ) RULE 12(b) FOR FAILURE
) TO STATE AN OFFENSE
ROBERT BREACH, Defendant )
COMES NOW, Defendant Sergeant Robert Breach, pursuant to Rule 12(b) (2) of the
Federal Rules of Criminal Procedure to ask the court to dismiss the abovementioned charges for
failure to State an offense. In support of his motion, Defendant states the following:
1. On or about October 10, 2010, the Prosecution charged Sergeant Robert Breach,
hereinafter, Sergeant Breach, with 2 counts of accepting illegal gratuities in violation of
18 U.S.C. 201(c) (1) (B).
2. On or about January 3, 2011, Sergeant Breach was indicted by the Grand Jury for two
counts of accepting gratuities.
3. The Indictment fails to state that at any time during the alleged criminal activity Sergeant
Breach was acting as a public official within the meaning of the statute and relevant
authority.
4. The Indictment fails to state that at any time during the alleged activity, Sergeant Breach
performed any official act(s).
5. The Indictment fails to state that any alleged actions by Sergeant Breach constitute
accepting an illegal gratuity.
WHEREFORE, on the basis that the Indictment is defective in that it fails to state an offense, the
Defendant prays for the Court to dismiss the indictment against him.
QUESTIONS PRESENTED
Under Federal statute,is a veteran off-duty officer of a local Colorado police force guilty
of accepting and illegal gratuity where he helped the owner of a tavern he frequented on his
personal time maintain a friendly, conflict free establishment without having to have his patrons
arrested, bydriving to the bar in the car he uses while on duty, wearing his uniform while
enjoying his time there, where no verbal or written employment agreement was made in relation
to his presence, where as a patron, he broke up a fight, where the owner of the establishment
thanked him and voluntarily gave him money and drinks for helping create a good atmosphere
for he and the other patrons, and where the owner of the bar agreed to help the FBI originate a
scheme to have the officer use a database and receive money for doing so, where the Gould City
Police Department data base was maintained by the Federal government and contained Colorado
records,where the officer used the database to find the phony record created by the FBI, where

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hedid nothing other than relay the information to the bar owner, and where the owner then
slipped the officer an envelope containing $1000 given to him by the FBI?
BRIEF ANSWER
No. A person is guilty of Acceptance of Illegal Gratuity when they, as a public official
“for the proper discharge of official duty. . .receives. . .anything of value personally for or
because of any official act performed or to be performed by such official person;”18 U.S.C.
§ 201(c)(1)(B) (1994). The Code defines a “public official” as “an officer or employee acting on
for or on behalf of the United States, or any department, agency or branch of the Government
thereof. . .in any official function” that is undertaken by the authority of the Federal body. Id.
§ 201(a)(1). “Official act” is defined as “any decision or action on any question, matter, cause. .
.which may at any time be pending, or which may by law be brought before any public official,
in such official‟s capacity, or in such official‟s place of trust or profit.” Id. § 201(a)(3). Officer
Breach is not a public official within the meaning of the statute, performed no official duties or
actions during his time in the establishment or in relation to the requests of Mr. Goldberg,
performed no official duties when he relayed information contained in the Gould City Police
Department database, and at no time took any actions that constitute accepting an illegal gratuity.
STATEMENT OF FACTS
On October 19, 2010, Officer Robert Breach (Mr. Breach) walked into a local bar to have
a drink and unwind after another tough shift as a 13 year veteran police officer, and instead
became the victim of a misplaced and erroneous attempt to destroy the career of a good cop.
On that first night, Mr. Rube Goldberg (Goldberg), the owner of a bar in Gould,
approached Mr. Breach and struck up a friendly conversation. Unbeknown to Mr. Breach,
Goldberg was the front for a scheme set up by Agent Nancy Mann (Mann) of the FBI to lure Mr.
Breach into accepting an illegal gratuity. Following Goldberg‟s introducing himself to Mr.
Breach, he confirmed that Mr. Breach was an officer, and then began telling him about some of
the rougher elements that also frequented his bar. He asked Mr. Breach to help him make the bar
a better place, but not to “bust” it, indicating that he didn‟t want any patrons to be arrested or
have any charges against them, and offered to pay Mr. Breach, though Mr. Breach didn‟t
acknowledge his offer at the time.

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He returned the following night after his shift in his GCPD car, and wearing his uniform,
as he would any night. That night, two of the rougher patrons got into an altercation, and Mr.
Breach told them to stop. The men left the bar without any further action on the part of Mr.
Breach, and he stayed the remainder of the evening. At the end of the night, Goldberg gave Mr.
Breach $500.
Mann instructed Goldberg to call Mr. Breach and have him come to the bar which he did.
After he finished his shift on November 2, 2010, Mr. Breach once again went to Goldberg‟s bar.
Goldberg then gave Mr. Breach the license plate number fictitiously created by Mann and asked
him to check it out to see if there were any warrants on the owner. There was no discussion of
payment for this or his coming to the bar that evening and Mr. Breach left.
Two nights later, following his shift, Mr. Breach returned with the information Goldberg
requested regardingthe fake record planted there by Mann.Because he had finished helping
Goldberg clean up the atmosphere of the bar, he decided to drive his own car and wore street
clothes to the bar that night. Upon leaving, Goldberg handed Mr. Breach an envelope with
$1000 in bills marked by the FBI, and Mr. Breach left the bar.
ARGUMENT
I. THE COURT SHOULD DISMISS THE CHARGES AGAINST MR. BREACH
BECAUSE HE DOES NOT FULFILL THE REQUIREMENTS OF BEING A
PUBLIC OFFICIAL UNDER THE FEDERAL STATUTE.
Under the Illegal Gratuity Statute, it is a crime to accept an illegal gratuity “for the proper
discharge of official duty. . .receives. . .anything of value personally for or because of any
official act performed or to be performed by such official person; shall be fined under this title or
imprisoned for not more than two years, or both.” Id.“The term „public official‟ means Member
of Congress, Delegate, or Resident Commissioner, either before or after such official has

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qualified, or an officer or employee or person acting for or on the behalf of the United States, or
any department, agency or branch of Government thereof, including the District of Columbia, in
any official function, under or by authority of any such department, agency, or branch of a
Government” Id. § 201(a)(1)
a. In the first count of the indictment, Officer Breach does not fit the definition
of a public official because he never acted as a representative of any Federal
agency or branch.
Because Mr. Breach‟s position is with the Gould City Police Department, and his duties
are almost exclusively to uphold the laws and statutes of his city and state, he does not qualify as
a “public official” as defined by § 201 in relation to his help in cleaning up the atmosphere at
Goldberg‟s bar. Defining “public official” under the statute, the Supreme Court determined that
the “proper inquiry is whether the person occupies a position of public trust with official federal
responsibilities.”Dixson v. United States, 465 U.S. 482, 491 (1984). The Dixsoncase involved a
private, non-profit corporation that was responsible for administering a federal housing grant
program where corporate officers took money from contractors in relation to handing out
rehabilitation bids. Id. at 482. Following the United States Supreme court, the United States
Court of Appeals for the 4th
Circuit determined that a Mecklenburg County Deputy Sheriff
charged with supervising state and federal prisoners was a “public official” because “the
Mecklenburg County Jail was under a contract with the federal government for the housing, care
and supervision of federal prisoners.” Unites States. v. Velazquez, 847 F.2d 140, 142 (4th Cir.
1988).The court looked toDixson and determined that because the Federal government paid
funds to the jail to take in and supervise federal prisoners, the deputy was a “public official”
sincehe supervised federal inmates. Id.

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Conversely, the position Mr. Breach holds in relation to his regular duties at the Gould
City Police Department holds no significant connection to any federal responsibilities. Unlike
the deputy in Velazquez, he held no official duties in relation to his time in Goldberg‟s bar. He
entered the bar to help create a better atmosphere for the owner and patrons. He wasn‟t there
handing out federal money like the official in Dixson to do so, and he was not there to supervise
anyone associated with the federal government in any way. No connection exists that would
make Mr. Breach a “public official” under the illegal gratuity statute.
b. During his actions in relation to the usage of the Gould City Police
Department database, officer Breach did not act as a public officialwhen he
reported the record to Goldberg.
Mr. Breach did not act as a “public official” when he relayed the information regarding
the fake record contained in the Gould City Police Department database. Again, the test set in
Dixson is whether a person “occupies a position of trust” and whether they have “official federal
responsibilities.” Dixson, 465 U.S. at 491. The court also clarified in its ruling that in relation to
people charged under § 210 “public officials within the meaning of 201(a), we do not mean to
suggest that the mere presence of some federal assistance brings a local organization and its
employees within the jurisdiction of the federal bribery statute.” Id. at 493. In that case, there
were federal guidelines on how to administer the grant funds, the government inspected the non-
profit‟s books, and the officials were “in a position of responsibility, acting for or on behalf of
the federal government in administering expenditure of federal funds.”Id. at 492. In applying the
elements the Supreme Court presented in Dixson, the United States District Court, D. Kansas
found that postal employees were “public officials” in connection with the statute because they
were in a position of public trust with federal responsibilities, though they are not federal
employees. United States v. Jackson, 850 F. Supp. 1481, 1508 (D. Kan. 1994).

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Contrary to the facts in Dixson and Jackson, Mr. Breach merely looked in a database for
a Colorado state record and relayed that information to Goldberg. The Prosecution points out
that the federal government funds, maintains, and inspects the GCPD database as an evidence of
Mr. Breach‟s relation to the federal government; however, unlike Dixson where there are also
federal funds and inspection, Mr. Breach holds no direct federal responsibilities in relation to the
information contained in the database. The federal government has an interest in this
information for its own purposes, and federal employees undertake the responsibilities associated
with it, not local police departments.Mr. Breach‟s responsibilities in relation to the database are
local and state responsibilities, and nothing like the federal responsibility of postal employees
which is to deliver the mail. He looked up the fake Colorado license tag of a fake Colorado
resident with a fake Colorado criminal record, and relayed that information to Goldberg, and as
such is not a “public official” as defined by the statute.
II. THE COURT SHOULD DISMISS THE CHARGES BECAUSE OFFICER
BREACH DID NOT ACT IN AN OFFICIAL CAPACITY IN RELATION TO
HIS ACTIVITIES IN MR. GOLDBERG’S BAR, NOR WITH RESPECT TO
THE INFORMATION CONTAINED IN THE GCPD DATABASE.
Section 201 prescribes that for an illegal gratuity given for “the proper discharge of official
duty” constitutes a violation. 18 U.S.C. § 201(c)(1)(B).An “official act” is “any decision or
action on any question, matter, cause. . .which may at any time be pending, or which may by law
be brought before any public official, in such official‟s capacity, or in such official‟s place of
trust or profit.” 18 U.S.C. § 201(a)(3).
a. By helping to provide a safe environment in Mr. Goldberg’s bar, Officer
Breach was acting as a regular patron, and not in any official police capacity.
Mr. Breach is a police officer, but this does not mean that people‟s respect for a uniform and
official vehicle does not mean he is taking “official action.” anywhere he goes in his uniform or

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police car when he is off duty. The illegal gratuity statute requires that he be acting in his
official capacity in relation to any acceptance of an illegal gratuity. Id. The Supreme Court
hasinterpreted that to mean“the government must prove a link between a thing of value. . .and a
specific official act. . .thus, it is not sufficient under 201(c)(1)(A) to show that a gratuity was (1)
given because of a recipient‟s official position, or (2)motivated, at least in part, by the recipient‟s
capacity to exercise governmental power.”United States v. Sun-Diamond Growers of Cal., 526
U.S. 398, 400 (1999).A defendant in that case gave the former Secretary of Agriculture money in
relation to his ability to influence U.S. agriculture policy though no “official action” took place.
The U.S. Court of Appeals for the District of Columbia in applying the Sun Diamond,did find a
D.C. policeman had taken official acts in a situation where he visited illegal massage parlors in
uniform and told them that they were not properly licensed. US v. Ahn, 231 F.3d 26, 32 (D.C.
Cir. 2000)
Similar to that case, Mr. Breach walked into an establishment in uniform having driven
there in his police car, but what distinguishes his actions from those of the officer in Ahn and the
former official in Sun Diamond is that Mr. Breach was a patron of the bar who offered no official
help.He was not there to shake down Goldberg or any of his customers, nor to be influenced into
taking some action while on duty as evidenced by the only time he did anything in relation to
maintaining a better atmosphere in the bar. In that instance, he told two patrons engaged in an
altercation to “knock it off.” One patron did pull a knife, and the prosecution could argue that it
was his duty to take official action in such an instance, but he did not have to, because his words
ended the altercation. Goldberg had specifically asked him not to perform any official actions
because he didn‟t want anyone “busted.” Much of a police officer‟s official actions consist of
just that, “busting” people. Mr. Breach never had to “bust” anyone, and though he drove there in

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his police car and wore his uniform to assert authority, it was not because he was there to fulfill
his duties as a police officer. He was there to drink, and help maintain a friendlier atmosphere,
not be a policeman stationed in a bar ready to fulfill his official duties in the instance of a crime,
and thus performed no “official actions.”
b. When Officer Breach provided Mr. Goldberg with what he saw in the GCPD
database, he was only relaying information and not performing any official
act as a police officer.
Mr. Breach performed no official actions in relation to the search of the GCPD database
and subsequent relay of information. As stated previously, an official action is related to the
official duties of the person charged, and must be for more than a gift because of his position or
capacity to act officially. Sun-Diamond Growers of Cal., 526 U.S. at 400. The United States
Court of Appeals, District of Columbia Circuit found that“A police officer‟s acts of looking up
license plate numbers on a police computer database, and looking on police database to see
whether there was a warrant out on a certain person did not constitute the performance of
“official acts,”as it relates to § 201 isthat his actions were not related to an active or “insipient”
investigation. Valdes v. United States., 475 F.3d 1319, 1325 (D.C. Cir. 2007).The court found
that if the interpretation were broader officers could be prosecuted for any number of
“moonlighting activities that in any way paralleled an official‟s regular work.” Id. Furthermore,
they recognized thatit seemed implausible that the statute meant to cover any “interrogative
action” as an action that constituted an “investigation.” Id. at 1326.
There are no cases related to this issue in this jurisdiction, so looking to Valdes,which has
an almost identical set of facts to this case, provides sound reasoning as to why no “official
action” occurred. Mr. Breach researched a record on the database not to form or continue an
investigation regarding the fake record. Goldberg asked him to search for the record, and report

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on what was there. He did this as a friendly gesture to someone who needed his help. Goldberg
never once gave reason for his inquiry, and Mr. Breach never took any official action in relation
to that by either starting an investigation or seeking out this fake person and bringing him into
custody. Because of that, no “official action” occurred in relation to Mr. Breach‟s usage of the
GPCD database.
The prosecution may argue against this by usingUnited States v. Moore, a case decided
by the Eleventh Circuit that partially countersValdes. That case involved correctional officers at
a federal prison in Florida allowing female prisoners special privileges in exchange for sex. The
court found that theyhad undertaken official actions determined by “established usage” or
“settled practice.”United States. v. Moore, 525 F.3d 1033 (7th Cir. 2008).While Mr. Breach
helped create a peaceful atmosphere in Goldberg‟s bar, he did not act as a “peace officer” in that
he took no established actions in an official capacity. The bar was not his place of work, he was
there for personal reasons or at worst moonlighting, and even when he relayed the information in
the database, he took no official police action in relation to that information.
III. THE COURT SHOULD DISMISS THE CHARGES BECAUSE MR. BREACH
DID NOT ACCEPT AN ILLEGAL GRATUITY IN RELATION TO HIS
ACTIONS IN GOLDBERG’S BAR, NOR IN RELATION TO HIS ACTONS
WITH THE GCPD DATABASE.
When Mr. Breach received money from Goldberg it did not satisfy the requirements of §
201 because he received it in relation to non-official actions. The Supreme Court inUS v. Sun
Diamondsaid thatunless the gift was accepted in relation to an official act, a gift should not
“constitute an illegal gratuity otherwise prohibited by 18 U.S.C. § 201(c)(B)(1)”Sun Diamond,
526 U.S. 398, 406, (1999), quoting 5 CFR § 2635.202(b).There must be a “specific connection”
between the gratuities and any specific matter in which the official had an interest. Id. at 402.
The court found that “this regulation. . .where more general prohibitions have been qualified by

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numerous exceptions. . .can linguistically be interpreted to be either a meat axe or a scalpel
should reasonably be take to be the latter” and thusshould not include gifts given because of an
employee‟s “official position.”Id. at406-407.In Ahn, that court applied this test and found that
because the officer went into a business that was operating illegally and took money instead of
enforcing the law and shutting them down, he received an illegal gratuity.Ahn, 231 F.3d at 33.
This contrasts with the facts of this case in that Goldberg was not operating an illegal bar
and Mr. Breach did not overlook an illegal activity conducted by Goldberg for the money he
received. Mr. Breach helped create a better atmospherein the bar by his presence and projection
of authority which shows that he at worst he took money because of his “official position.” He
also didn‟t take any money from the two patrons who were in the altercation in lieu arresting
them which distinguishes his conduct from officer Ahn who took money to overlook an
illegality.
In relation to the information provided to Goldberg regarding the fake record created by
the FBI, again, he took no official action for which he received money. Like the official in Sun
Diamondwho received money but did not act favorably in return, Mr. Breach received money
because he was in a position to view the record and relay the information therein contained, but
not to take official action in that regard. Neither of these actions constitute the receiving of an
illegal gratuity for an official action, and thus do not satisfy this requirement of § 201.
CONCLUSION
18 U.S.C. § 201(c)(1)(B)requires that a “public official” receive something of value for
an “official act” to be convicted of receipt of an illegal gratuity. Mr. Branch may have violated
his department‟s policies by taking money for off duty activities, and using the department‟s
database for improper purposes, but the proper venue for such an inquiry is his local department.

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The Federal illegal gratuity statute is not the proper one for a case in which an officer with
minimal if any Federal ties and responsibilities performed duties not in line with any of his
official duties as a policeman.The FBI lured him into a trap concocted by overzealous Federal
agents, and neither acted as a public official, took any official actions, nor received
compensation for official actions. We therefore ask the court to dismiss these charges.
Respectfully submitted, this is the 10th
day of April, 2012
Cleat Walters III
cleat.walters@students.charlottelaw.org