Prosecution in Apple's iPads-for-Concealed-Firearms-Licenses Bribery Case Can Go Forward

"This appeal raises a question not yet addressed by any California court: whether a public official may be bribed with a promise to donate to the official's office."

From Friday's decision in People v. Moyer, written by Justice Bromberg and joined by Justices Grover and Lie:

 According to the People, the Santa Clara County undersheriff requested—and defendant Thomas Moyer made—a promise to donate iPads to the Santa Clara County Sheriff's Office in exchange for releasing concealed carry weapon (CCW) licenses that the sheriff had signed. Consistent with the Ninth Circuit's interpretation of California law, federal law and the law in many states, we conclude that such a promise may constitute a bribe. We also conclude that the evidence presented to the grand jury was sufficient to raise a reasonable suspicion of such bribery. Accordingly, we reverse the trial court's order dismissing the bribery count against Moyer, reinstate that count, and remand for further proceedings….

The story of the San Jose CCW bribery scandal is long and complicated, and involves a good deal more than just this matter; here's just a brief excerpt from the court's summary of the facts:

During the relevant time frame, the Santa Clara County Sheriff's Office rarely issued CCW licenses. Indeed, the office's practice was to not even process an application for a CCW license absent a special instruction to do so. Only Sheriff Laurie Smith and a small number of others in the Sheriff's Office had the authority to give such instructions. One of those individuals was Rick Sung, who appears to have run Sheriff Smith's 2018 re-election campaign and after the election became the undersheriff, second in command to the sheriff. Undersheriff Sung also had authority to place license applications on hold even after licenses were signed by the sheriff.

Undersheriff Sung abused his authority over CCW applications to extract favors [in cases well beyond just this one -EV] ….

Thomas Moyer is Apple, Inc.'s head of global security. The company's executive protection team is under his supervision. In 2016 and early 2017 the team began receiving more serious threats against Tim Cook, Apple's CEO, and became concerned about its ability to respond to these threats. As a consequence, in early 2017, Apple decided its executive protection team should be armed and began taking steps to obtain CCW licenses for team members, many of them based in Santa Clara County….

In August 2017, after several initial approaches were rebuffed, two Apple officials—David Gullo, senior director of global security, and Eric Mueller, senior director of operations for the security team—met with Undersheriff Sung to discuss CCW licenses. In the meeting Sung said he would help Apple obtain licenses.

At the end of the meeting, Undersheriff Sung brought up the upcoming election for sheriff and asked Gullo and Mueller if they would support Sheriff Smith's re-election. The request raised "a red flag" for Gullo because Sung appeared to be linking CCW licenses to his request for political support. Consequently, Gullo reported to Moyer that "we were approached by the Sheriff's Office, and they wanted us to support the Sheriff for re-election." Moyer responded with a "[c]ouple of rules": "You are free to support whomever you like," but "[y]ou should not feel like you need to support her because you work for Apple." Moyer also added pointedly, "We will not give money or anything of value in exchange for CCW[s]." …

After the November 2018 election, the public information officer asked Undersheriff Sung about Apple's CCW applications…. [Eventually], Undersheriff Sung directed the public information officer to process Apple's CCW applications. In January 2019, after the applicants were fingerprinted and had completed their firearm range qualification tests, Sheriff Smith signed the CCW licenses, which were sent to an administrative assistant. However, before the assistant could tell the applicants to pick them up, the licenses were removed from her desk….

On January 23, 2019, Undersheriff Sung sent an email from his personal email account to Moyer, asking to set up a meeting with Moyer, Sheriff's Office Captain James Jensen, and himself. This meeting took place on February 8 in the visitor's center at Apple Park.

Although Apple had no established program for donating products to law enforcement agencies, and the Sheriff's Office had no immediate need for iPads, during the meeting Moyer sent himself a blank email with the subject line: "IPad Donation."

Immediately after the meeting, Moyer emailed the leader of Apple's executive protection team that "[y]ou will have your permits shortly." …

On February 10, 2019, two days after meeting with Undersheriff Sung and Captain Jensen, Moyer emailed a senior finance manager at Apple asking about the rules for donating iPads or computers to the local sheriff's office for its "new training facility." The following day an Apple compliance attorney replied that California public agencies may accept donations but asked Moyer to "make sure that there are no significant matters or purchases pending with the agency." In response Moyer made no mention of Apple's pending CCW license applications. Instead, he told the compliance attorney that "we are not doing this because we are receiving anything in exchange." Moyer informed the attorney of the applications only after the licenses were issued and does not appear to have disclosed that the applications were pending when the iPad donations were first proposed.

About a month later, Moyer emailed Captain Jensen. Although in fact the Sheriff's Office was not setting up a new training center, Moyer said that "[y]ou mentioned previously that you folks were setting up a new training center." Then, Moyer said he was "[c]urious if you have a need for iPads or potentially computers for that facility."

Captain Jensen forwarded Moyer's email to Undersheriff Sung and Assistant Sheriff Michael Doty. Later that day, Sung asked Doty to "start thinking of ideas on how we could utilize either computers or iPads from Apple in the training division." When Doty suggested asking for 50 iPads, Sung told Doty to think bigger, and ultimately they asked for 200 iPads, which were worth $50,000 to $80,000.

On March 26, 2019, members of Apple's executive protection team were told to pick up their CCW licenses, which they did at the Sheriff's Office….

The California Penal Code forbids bribery, defining bribe as

anything of value or advantage, present or prospective, or any promise or undertaking to give any, asked, given, or accepted, with a corrupt intent to influence, unlawfully, the person to whom it is given, in his or her action, vote, or opinion, in any public or official capacity.

This, the court concluded, includes promises to give things not just to the official or the official's friends or relatives, but also to the government department itself:

This language divides bribes into two general categories or prongs. The first prong concerns direct payments: "anything of value or advantage" that is requested, given, or accepted with the intent to corruptly influence its target. The second prong concerns promises: "any promise or undertaking to give any[thing of value or advantage]" that is requested, given or accepted to corruptly influence its target.

While the payment prong requires that the target of the bribe receive a "[ ]thing of value or advantage"—typically, a payment—the promise prong requires only that the target receive a promise to make a payment, not a promise that the target, rather than some other party, will receive a payment. As Moyer points out, the Penal Code's definition of bribe requires a corrupt intent to influence "the person to whom it is given." In the payment prong, "it" refers to the payment made, and therefore the payment must be made to the target of the bribe. In the promise prong, however, "it" refers to a "promise or undertaking to give any[thing of value or advantage]." Thus, under the promise prong, the target must receive a promise that a payment will be made. There is, however, no additional requirement that the payment be promised to the target of the bribe. To the contrary, under the plain language of the definition, the promise may be to make a future payment to anyone, whether a third party or the target.

This conclusion is supported by the specific language of the promise prong. The Penal Code defines "bribe" to include "any promise or undertaking" to give a thing of value. As the Supreme Court has recognized, "[u]se of the term 'any'" in a law "demonstrates the Legislature intended the law to have a broad sweep." Indeed, "any" is defined to mean, among other things, "one or some indiscriminately of whatever kind," and therefore a reference to "any" item or object in a statute is "most naturally read to mean [items or objects] of whatever kind." As a consequence, the Penal Code's reference to "any promise or undertaking to give any[thing of value or advantage]" is naturally read to mean promises to make payments of any kind, not just promises that the target of the bribe will receive payment in the future.

This interpretation makes sense. The Penal Code's definition of bribe applies not only when a bribe is "given" to a public official, but also when a public official has "asked" for a bribe. If a personal receipt requirement were implied into the promise prong, and that prong were limited to promises of future payment to the target of the bribe, executive officials would be free to demand payments to their relatives or friends in exchange for official actions without fear of prosecution for bribery (at least as long as such payments are not an indirect conduit to the officials).

And the "corrupt intent" element was satisfied, the court held, among other things because the deal wasn't public, and indeed Moyer took steps to conceal it:

[T]here is no corrupt intent when a corporation publicly offers to fund a public works project in exchange for a city council tabling a tax proposal, because in such a case the deal is made openly and lawfully.

The situation here is different. Far from making a public deal, Moyer allegedly struck a private bargain with Undersheriff Sung and Captain Jensen to donate iPads in exchange for release of Apple's CCW licenses. In addition, far from disclosing this bargain, Moyer failed to mention the applications when compliance personnel asked about matters pending before the Sheriff's Office, and he took steps to actively conceal the connection between the applications and the promised donation until the investigation into the Sheriff's Office created too great a danger. While no corrupt intent may be inferred when a party openly makes a deal with a public entity, the grand jury reasonably could have inferred corrupt intent from such an undisclosed, "clandestine" bargain.

John Chase, Deputy D.A., represents the state.