                                                                                 FILED
                                                                         Dec 06 2019, 8:34 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




      ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      James H. Voyles, Jr.                                      F. Aaron Negangard
      Jennifer M. Lukemeyer                                     Chief Deputy Attorney General
      Tyler D. Helmond
      Indianapolis, Indiana                                     Stephen R. Creason
                                                                Chief Counsel of Appeals
                                                                Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Daniel Tanoos,                                            December 6, 2019
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                19A-CR-1086
              v.                                                Appeal from the
                                                                Marion Superior Court
      State of Indiana,                                         The Honorable Lisa F. Borges,
      Appellee-Plaintiff.                                       Judge
                                                                Trial Court Cause No.
                                                                49G04-1809-FC-32385



      Altice, Judge.


                                              Case Summary
[1]   Former Superintendent of the Vigo County School Corporation (VCSC) Daniel

      Tanoos was charged with three counts of bribery regarding his solicitation and

      acceptance of meals, tickets, and other items from a vendor that repeatedly

      Court of Appeals of Indiana | Opinion 19A-CR-1086 | December 6, 2019                           Page 1 of 23
      contracted with and provided energy solutions to VCSC. The trial court denied

      Tanoos’s motion to dismiss the charges, and Tanoos appeals, asserting that the

      trial court abused its discretion when it failed to dismiss the charges because the

      facts alleged do not constitute the offense of bribery.


[2]   We affirm.


                                     Facts & Procedural History
[3]   Tanoos began as Superintendent with VCSC in 1999 or 2000 and retired in

      2018. Energy Systems Group (ESG) is a state-certified guaranteed energy

      savings contractor (GESC) headquartered in Indiana and with offices in

      Indianapolis, that develops and provides energy solutions to governmental

      bodies to reduce energy and operating costs under Ind. Code Chapter 36-1-

      12.5. 1 ESG provides clients with such things as upgraded lighting and HVAC

      at no added cost to the client, as energy savings are used to pay for the

      investment over a period of years. At times relevant to this action, Doug

      Tischbein was the corporate director of ESG, and he was in charge of the

      VCSC account beginning in either 2006 or as early as 2003. Between 2000 and

      2016, VCSC entered into nine contracts with ESG worth more than $42

      million.




      1
        Ind. Code 36-1-12.5 provides for the administration of GESC contracts. By statute, the governing body,
      here a school corporation, is required to publish notice that it is receiving proposals of conservation measures
      from GESCs through a process called Request for Qualifications, to which GESCs would respond. The
      governing body is not required to bid out the job or award it to the lowest bidder.

      Court of Appeals of Indiana | Opinion 19A-CR-1086 | December 6, 2019                                Page 2 of 23
[4]   On September 24, 2018, Indianapolis Metropolitan Police Department

      Detective Tara Asher, who was assigned to the Marion County Prosecutor’s

      Grand Jury Unit, filed a 24-page probable cause affidavit (the PCA) averring

      that, in August 2018, she received information from FBI Special Agent Joann

      Dowell that the FBI had been investigating Tanoos based on information that

      the FBI had received from Indiana’s State Board of Accounts (SBOA) regarding

      concerns of improper awarding of contracts by VCSC to ESG. Based on the

      information that the FBI received from the SBOA, the FBI opened a public

      corruption investigation in February 2016. FBI agents executed search

      warrants at several VCSC locations, collecting digital and documentary

      evidence related to ESG’s relationship with VCSC, and in particular, Tanoos’s

      relationship with ESG and Tischbein. The FBI investigation included

      information received from an FBI confidential source with access to VCSC

      contracts and the contracting process. The investigation also included

      interviews with various VCSC personnel, school board members, and ESG

      personnel, including Tischbein. ESG expense reports and emails were provided

      pursuant to subpoena.


[5]   Persons interviewed indicated that Tanoos always recommended ESG to the

      school board as the GESC for renovations throughout the district and that other

      competitors quit responding to published Request for Qualifications. The PCA

      reflected that Tanoos continued to receive tickets and meals and the like at

      times when ESG did not have a contract with VCSC, with Tischbein explaining

      to his superiors that there were upcoming planned VCSC school renovations,


      Court of Appeals of Indiana | Opinion 19A-CR-1086 | December 6, 2019     Page 3 of 23
      that Tanoos “is loyal to us” and “a certain level of investment into maintaining

      that relationship is vital.” Appellant’s Appendix Vol. II at 29. Both Tanoos and

      Tischbein denied in interviews that Tanoos solicited or expected Tischbein to

      buy things in exchange for Tanoos’s recommendation of ESG to the school

      board.


[6]   According to ESG records obtained in the investigation, Tischbein expensed

      more than $18,000 between the years of 2006 and 2016 for meals, events, and

      miscellaneous items, and that amount did not include company-owned season

      tickets to sporting events or items paid personally by Tischbein. In the same

      time period, ESG made more than $83,000 in donations related to the VCSC

      account. Detective Asher summarized in the PCA, “Evidence obtained

      through the investigation showed that Tischbein and ESG routinely provided

      benefits and perks to Tanoos and VCSC school board members in an effort to

      continue receiving work from VCSC” and, “[o]ver time, Tanoos began

      soliciting such perks of his own accord, sometimes pairing the request with

      information about ESG competitors or while otherwise offering support to

      ESG.” Id. at 20.


[7]   Detective Asher found the following instances “of greatest concern”:


               1. The August 24, 2013 dinner at Mo’s Steakhouse . . . and Colts
               game for Tanoos and friends and family. The dinner was paid
               for by ESG at Tanoos’ request without ESG employees present.
               Tanoos solicited the Colts’ [sic] tickets immediately following
               Tischbein asking him if he knew another county’s school
               superintendent for an opportunity to do a project there;

      Court of Appeals of Indiana | Opinion 19A-CR-1086 | December 6, 2019     Page 4 of 23
              2. The July 11, 2014 dinner at Palm Restaurant, Nashville.
              Tanoos solicited this dinner immediately after making Tischbein
              privy to a competitor’s solicitation of VCSC. The dinner cost
              over $1000 and neither Tischbein nor any other ESG employees
              attended. Notably, Tischbein did not expense this dinner as a
              business expense;


              3. The August 10, 2014 REO Speedwagon concert. Tanoos
              directly solicited tickets for this concert which included a
              limousine ride and complimentary liquor near the end of the
              Phase 8 contract.


      Id. at 42.


[8]   On September 24, 2018, the State filed an information against Tanoos alleging

      three counts of bribery, Count I as a Class C felony and Counts II and III as

      Level 5 felonies:


              COUNT I: DANIEL TANOOS, on or about August 24, 2013,
              did solicit, accept, or agree to accept any property, that is: food
              and/or beverages, except property the person is authorized by
              law to accept, with intent to control the performance of an act,
              that is: recommendation to award contract and/or continued
              business with ESG to the Vigo County School Board related to
              the employment or function of a public servant, that is:
              Superintendent of Vigo County School Corporation;


              COUNT II: DANIEL TANOOS, on or about July 11, 2014, did
              solicit, accept, or agree to accept any property, that is: food
              and/or beverages, except property the person is authorized by
              law to accept, with intent to control the performance of an act,
              that is: recommendation to award contract and/or continued
              business with ESG to the Vigo County School Board related to


      Court of Appeals of Indiana | Opinion 19A-CR-1086 | December 6, 2019          Page 5 of 23
               the employment or function of a public servant, that is:
               Superintendent of Vigo County School Corporation;


               COUNT III: DANIEL TANOOS, on or about August 10, 2014,
               did solicit, accept, or agree to accept any property, that is: tickets
               and/or beverages, except property the person is authorized by
               law to accept, with intent to control the performance of an act,
               that is: recommendation to award contract and/or continued
               business with ESG to the Vigo County School Board, related to
               the employment or function of a public servant, that is:
               Superintendent of Vigo County School Corporation[.]


      Id. at 17-18.


[9]   On October 22, 2018, Tanoos filed a motion to dismiss, seeking dismissal of all

      three charges on several grounds, the following of which is relevant to this

      appeal: The facts stated in the charging information do not constitute the

      offense of bribery because “Indiana does not recognize a ‘generalized bribe’

      theory . . . and the State is required to prove the existence of an explicit quid pro

      quo”, and here, the charging information’s allegation that Tanoos would

      recommend to VCSC to award a contract or continue business with ESG was

      too general and, thus, insufficient. 2 He maintained that the State was required

      to show “that any of these solicitations, acceptances, or agreements to accept

      food/beverages/tickets were [] made on a quid pro quo basis, i.e., in exchange



      2
       The other two bases for dismissal, the denial of which Tanoos does not challenge on appeal, were (1) lack
      of personal and subject matter jurisdiction; and (2) because the charging information alleged three separate
      actus reus for bribery, i.e., Tanoos “did solicit, accept, or agree to accept” property, the information lacks
      specificity to enable the court and jury to understand the issues and apprise Tanoos of the charges against
      him. Appellant’s Appendix Vol. II at 53.

      Court of Appeals of Indiana | Opinion 19A-CR-1086 | December 6, 2019                                Page 6 of 23
       for Tanoos’[s] agreement or promise to recommend ESG for any particular

       project.” Id. at 60.


[10]   The Indiana Association of Public School Superintendents (The Association)

       requested and received permission to file an amicus curiae brief in support of

       Tanoos. The Association stated that it was not suggesting that school vendors’

       “extensions of goodwill and thanks in the form of meals, events, and tickets”

       should be allowed to cloud the judgment of school leaders, but it is “necessary

       and unavoidable for superintendents to interact with past, current, and future

       business associates,” and the charges against Tanoos “have created uncertainty

       as to how the Indiana bribery statute can and will be enforced in the future.”

       Id. at 87. The Association explained:


               Under the State’s reading of the Indiana bribery statute,
               prosecutors could allege violations of the statute when
               superintendents and other public officials accept anything, at any
               time, from any person or business that has, is, or may do business
               with the public official. Public officials around the state would
               have no guidance as to where the line is drawn and legitimate
               and essential business and public-relation relationships would be
               chilled. School systems, municipalities and other public
               programs would suffer. Businesses could reconsider investments
               in Indiana. And it is not difficult to imagine the unfair and
               selective prosecution of public officials that could result if the
               State’s current application of the statute is permitted.


       Id. at 87-88. The Association urged that the State’s application of the bribery

       statute “to the facts alleged here” violates federal and state due process and

       encourages arbitrary and discriminatory enforcement. Id. at 89.


       Court of Appeals of Indiana | Opinion 19A-CR-1086 | December 6, 2019      Page 7 of 23
[11]   The State’s response to Tanoos’s motion to dismiss argued, as is relevant to this

       appeal, that, first, for purposes of a motion to dismiss, the trial court must take

       the facts in the information and PCA as true and, second, the State is not

       required to include detailed factual allegations in the charging information.

       Rather, the State must allege the elements of the crime such that a defendant is

       given sufficient notice of the nature of the charges so he may anticipate proof

       and prepare a defense. The State maintained that the PCA outlined “a course

       of conduct by [Tanoos], as a public official, with Tischbein, an ESG employee

       and vendor doing business with VCSC, in which [Tanoos] requests dinner,

       tickets, donations, favors and then he recommends to the VCSC school board

       that ESG should be awarded a contract/business and the Board always follows

       his recommendations.” Id. at 106-07. The State argued that it had met its

       burden to allege sufficient facts in the information and PCA to constitute

       bribery and the charges were not, as Tanoos claimed, based on a “generalized

       bribe” theory.


[12]   Pertaining to Count I, which alleged that Tanoos solicited, accepted, or agreed

       to accept food and/or beverages on August 24, 2013, the PCA stated that on

       August 16, 2013, Tischbein emailed Tanoos asking him if he knew the

       superintendent of Clay County Schools, stating that he had heard Clay County

       was looking to do an energy project and ESG wanted a shot at it. Tanoos

       replied,




       Court of Appeals of Indiana | Opinion 19A-CR-1086 | December 6, 2019       Page 8 of 23
               Yes, I know her. She has called me on several occasions about
               issues. Do you have preseason tickets? The Browns are in Indy
               next week.


       Id. at 31. Tischbein replied that ESG had four tickets “and they are yours, pls

       confirm[,]” and Tanoos said, “That would be perfect.” Id. The Indianapolis

       Colts played the Cleveland Browns on August 24, and Tischbein’s expense

       report indicates that ESG paid $364.65 for a dinner at Mo’s Steakhouse in

       downtown Indianapolis that night. Tischbein did not attend the dinner, which

       was attended by Tanoos, his wife, son, and four other family members or

       friends. According to the State, this dinner occurred in the middle of ESG

       pursuing new contracts for VCSC projects, particularly a $4 million project at

       Hoosier Prairie Elementary School (HP). At a February 2014 school board

       meeting, Tanoos recommended approval to hire ESG for the HP project, and in

       March 2014, ESG and VCSC entered into the Phase 8 contract for $4 million,

       which included the HP project.


[13]   As to Count II, which alleged that Tanoos solicited, accepted, or agreed to

       accept food and/or beverages on July 11, 2014, the PCA stated that on July 6,

       2014, Tanoos forwarded Tischbein an email that Tanoos had received from one

       of ESG’s competitors, saying “FYI.” Id. at 34. The next day, Tischbein replied

       saying “Thanks” and also inquiring whether Tanoos would be available for

       lunch that Friday. Tanoos replied that he would be at a principals’ conference

       in Nashville, Tennessee with school board members and administrators, along

       with that same competitor whom Tanoos had just apprised Tischbein about.


       Court of Appeals of Indiana | Opinion 19A-CR-1086 | December 6, 2019    Page 9 of 23
       Tischbein emailed back on July 7 asking if he should come to Nashville and

       buy dinner. Several hours later Tischbein emailed Tanoos to inquire if the

       Board wanted an update on HP and offered a walk-through to show the Board

       the progress. Thereafter, the two exchanged one or more emails in which

       Tischbein asked how the walk-through at HP went and then told Tanoos that

       he would be unable to make it to dinner Friday in Nashville. Tanoos

       responded about dinner, “No problem. Do you want to buy dinner like you did

       in Houston?” Id. at 35. On July 8, Tischbein replied, “For you, absolutely.”

       Id. at 36. On July 11, Tischbein charged $1116.80 on his personal credit card to

       a restaurant in Nashville for the dinner, which he did not attend, and he did not

       request reimbursement from ESG.


[14]   As to Count III, which alleged that Tanoos solicited, accepted, or agreed to

       accept tickets and/or beverages on August 10, 2014, the PCA reflects that, in

       January 2014, Tanoos reached out by email to Tischbein about a music concert

       of the band REO Speedwagon that would be performing at Klipsch Music

       Center on August 10, 2014, saying “This is the one!!!!” Id. at 37. On July 14,

       2014, Tischbein emailed Tanoos and told him that the concert tickets had been

       purchased and a limousine would be transporting Tanoos and guests.

       Tischbein’s expense report indicated that he expensed $75 at Klipsch on the day

       of the concert, and the day prior he expensed $63.08 at Payless Liquors.

       Tischbein’s expense report indicated that he attended the concert with Tanoos,

       Tanoos’s wife, and a school board member and spouse. The Phase 8 contract

       ended in September 2014.


       Court of Appeals of Indiana | Opinion 19A-CR-1086 | December 6, 2019   Page 10 of 23
[15]   The trial court held a hearing at which counsel for the parties presented

       argument. Tanoos maintained that the trial court should dismiss the charges

       because the allegation that, in exchange for receipt of food and concert tickets

       (provided by Tischbein/ESG), Tanoos, as a public servant, would make a

       favorable recommendation to the school board about ESG was a “generalized

       recommendation for future business”, which does not constitute bribery under

       Indiana law. Transcript at 5. In support, Tanoos noted that, for the three dates

       identified in the charges, there was no pending contract before the school board

       and no open bidding for upcoming projects.


[16]   The Association as amicus urged that superintendents and administrators

       frequently interact with vendors and contractors and many of those interactions

       occur over a meal or the like, and Indiana law does not preclude the vendor

       from paying for the meal. Counsel argued that, in this case, “we’re talking

       about two meals and a concert . . . [a]ll just to build a good rapport in exchange

       for no promise or agreement” but “[u]nder the wide sweep of the State’s

       reading of the bribery statute [], public officials could be . . . subject to

       prosecution for the most basic and the most necessary interactions.” Id. at 14.

       The Association maintained that there must be “an agreement on the part of the

       public official to perform some act in the future.” Id. at 15.


[17]   The State argued that in this case Tanoos’s recommendation to the school

       board is the specific act that would lead to the contract between ESG and

       VCSC. The State said the PCA taken as a whole illustrated that, over the years,

       Tanoos never recommended any other energy saving vendor other than ESG

       Court of Appeals of Indiana | Opinion 19A-CR-1086 | December 6, 2019            Page 11 of 23
       and the school board always approved Tanoos’s recommendations.

       Specifically, between 2000 and 2016, ESG entered into nine contracts, or

       phases, with VCSC for a total of $42 million, and Tischbein had been

       responsible for the VCSC account since as early as 2003. The State maintained

       that this was not a situation where Tanoos accepted gifts in exchange for a

       vague possibility that he might act on ESG’s behalf sometime in the future, as

       Tanoos claimed, but rather Tanoos solicited dinners, tickets, and other items as

       set forth in the PCA in exchange for his willingness to continue recommending

       ESG – and only ESG – for VCSC’s ongoing projects.


[18]   On March 26, 2018, the trial court issued Findings of Fact and Conclusions of

       Law denying Tanoos’s motion to dismiss. Its findings and conclusions

       included:


                                                Findings of Fact


               2) In each of the bribery counts the State alleges that [Tanoos], a
               public servant, solicited, accepted, or agreed to accept property,
               that he was not authorized by law to accept, to control the
               performance of an act related to his function as a public servant
               on three (3) separate occasions.


               3) The Probable Cause Affidavit sets forth a course of conduct
               whereby [Tanoos] . . . through [Tischbein], an ESG employee
               and vendor doing business with [VCSC], requests dinner, tickets,
               donations and favors of value from ESG. [Tanoos], in his
               position as Superintendent, makes a recommendation to the
               VCSC School Board to award a contract/business to ESG. The
               VCSC School Board historically followed the recommendation of
               the defendant.

       Court of Appeals of Indiana | Opinion 19A-CR-1086 | December 6, 2019     Page 12 of 23
                                                 ***


        5) . . . While receiving benefits from ESG through Tischbein,
        [Tanoos] repeatedly recommended ESG[,] and the VCSC School
        Board repeatedly followed his recommendation.


                                      Conclusions of Law


        1) As the moving party on the Motion to Dismiss, [Tanoos]
        bears the burden of showing as a matter of law that the Charging
        Information and Probable Cause Affidavit have insufficiently
        pled the crimes alleged and do not state an offense.


                                                 ***


        8) [Tanoos] next argues that Counts I-III should be dismissed
        because the charging information does not state facts that
        constitute a criminal offense pursuant to Indiana Code § 35-34-1-
        4-(a)(5). In [his motion to dismiss] brief, [Tanoos] argued that
        the State must plead a quid pro quo and that the facts in the
        probable cause affidavit and information do not constitute a
        criminal offense[.]


        9) In his brief, [Tanoos] argued that the State has charged the
        defendant with a “generalized bribe” theory which is not
        supported under Indiana law. “An essential element of the
        offense of bribery is a quid pro quo.” Winn v. State, 722 N.E.2d
        345, 347 (Ind. Ct. App. 1999), citing Wurster v. State, 708 N.E.2d
        587, 594 (Ind. Ct. App. 1999), affd by (1999) Ind., 715 N.E.2d
        341, r’hrg denied. [Tanoos] further argued that the United States
        Supreme Court held in McDonnell that bribery statutes must not
        be read so broadly that “nearly anything a public official accepts -
        from a campaign contribution to lunch - counts as a quid; and
        nearly anything a public official does - from arranging a meeting

Court of Appeals of Indiana | Opinion 19A-CR-1086 | December 6, 2019      Page 13 of 23
        to inviting a guest to an event - counts as a quo.” McDonnell v.
        U.S. 136 S.Ct. 2355, 2372 (2016) (citation omitted).


        10) The State countered that it has met the requirements of
        Indiana Code § 35-34-1-2 by alleging facts sufficient in the
        probable cause affidavit and that each count of bribery tracked
        the language of the statute, including additional factual
        allegations.


        11) . . . The information in this cause alleges a specific date for
        each count, and the probable cause affidavit contains the email
        communication content, dates and times to support the date and
        criminal conduct. In addition, the State has alleged a specific act,
        the defendant’s recommendation to award contract and/or
        continued business with ESG.


        12) A charging information must allege the elements of the
        crime such that the accused is given sufficient notice of the nature
        of the charges against him so that he may anticipate the proof
        and prepare a defense in advance of trial. See Ind. Const. Art. 1,
        § 13; Ind. Code § 35-34-1-2; Smith v. State, 465 N.E.2d 702, 704
        (Ind. 1984). The State is not required to include detailed factual
        allegations in the charging instrument, though it may choose to
        do so. Richardson v. State, 717 N.E.2d 32, 51 (Ind. 1999).


                                                 ***


        14) In Counts I, II, and III, the State tracks the language of the
        bribery statute under Indiana law. Additionally, the probable
        cause affidavit sets forth sufficient facts in support of each count
        to meet its burden under Indiana Code § 35-34-1-2.


                                                 ***



Court of Appeals of Indiana | Opinion 19A-CR-1086 | December 6, 2019       Page 14 of 23
               17) Indiana’s bribery statute nor the case law require that a quid
               pro quo is an element that must be plead by the State in the
               Information, but it is a matter for the trier of fact to determine.


       Appellant’s Appendix Vol. II at 164-69. After the trial court denied his motion to

       dismiss, Tanoos sought and received certification of the trial court’s order, and

       this court accepted his request for interlocutory appeal. Additional facts will be

       provided as necessary.


                                        Discussion & Decision
[19]   Tanoos contends the trial court erred in denying his motion to dismiss. Our

       standard of review is well settled.


               We review a trial court’s denial of a motion to dismiss for an
               abuse of discretion. An abuse of discretion occurs when the
               decision is clearly against the logic and effect of the facts and
               circumstances or when the trial court has misinterpreted the law.
               We may affirm a trial court's judgment if it is sustainable on any
               basis in the record.


       Gilliland v. State, 979 N.E.2d 1049, 1057-58 (Ind. Ct. App. 2012) (quoting

       Estrada v. State, 969 N.E.2d 1032, 1038 (Ind. Ct. App. 2012), trans. denied).

       “Questions of fact to be decided at trial or facts constituting a defense are not

       properly raised by a motion to dismiss.” Id. at 1058 (quoting Delagrange v. State,

       951 N.E.2d 593, 594-95 (Ind. Ct. App. 2011), trans. denied).


[20]   The purpose of the charging information is to provide a defendant with notice

       of the crime of which he is charged so that he is able to prepare a defense. Id. at


       Court of Appeals of Indiana | Opinion 19A-CR-1086 | December 6, 2019      Page 15 of 23
       1060. The State is not required to include detailed factual allegations in a

       charging information. Id. As Tanoos acknowledges, to assess whether facts

       stated in a charging instrument constitute an offense, all the facts within the

       information and PCA are examined and taken as true. Id. at 1058.


[21]   The offense of bribery as charged in this case is governed by I.C. § 35-44-1-

       2(a)(2), which states:


                (a) A person who:


                (2) being a public servant, solicits, accepts, or agrees to accept,
                either before or after the person becomes appointed, elected, or
                qualified, any property, except property the person is authorized
                by law to accept, with the intent to control the performance of an
                act related to the person’s employment or function as a public
                servant;


                commits bribery, as Level 5 felony.


[22]   Tanoos asserts that his motion to dismiss should have been granted because the

       facts alleged do not constitute the offense of bribery. Specifically, his claim is

       that “the State charged Tanoos under a generalized bribery theory which is

       prohibited under Indiana law.” 3 Appellant’s Brief at 8. In support, Tanoos cites

       to, among other cases, Wurster v. State, 708 N.E.2d 587 (Ind. Ct. App. 1999),




       3
        Tanoos acknowledges that a quid pro quo “is not required to be laid out in the charging information,” but it
       “is required to be supported by the facts in the [PCA]”, and, he argues, that the PCA here fails to identify any
       such quid pro quo. Appellant’s Brief at 11.



       Court of Appeals of Indiana | Opinion 19A-CR-1086 | December 6, 2019                              Page 16 of 23
summarily aff’d in part by 715 N.E.2d 341 (Ind. 1999). In that case, the State

charged Indiana Representative Turpin and other individuals with bribery,

alleging as follows:


        From June, 1993 through May, 1996, in Marion County,
        Indiana, Samuel R. Turpin, being a public servant, that is: an
        elected member of the House of Representatives, did accept
        property, that is: money, from American Consulting Engineers,
        Inc., by and through its agents, James A. Wurster and Willis R.
        Conner, with the intent that such money would control the
        performance of acts related to Samuel R. Turpin’s employment
        or function as a public servant, that is: with the intent that Samuel
        R. Turpin would act to support or promote legislative measures and
        decisions that would result in economic gain to American Consulting
        Engineers, Inc.


Id. at 593 (emphasis added). The defendants moved to dismiss the charges,

which the trial court denied. On appeal, Turpin, and other defendants,

challenged the sufficiency of the bribery charges, asserting that a specific quid

pro quo is an element of the offense of bribery and must be alleged in an

indictment and that acting “to support or promote legislative measures that

would result in economic gain” as stated in the charging instrument was

insufficient. Id. The Wurster court agreed and found that “the State’s entire

case was based on the so-called ‘generalized bribe’ theory” and


        [w]ithout a specific description of how Turpin would “act” or
        what “act” he is alleged to have engaged in that resulted in, or
        was designed to result in, economic gain to [American
        Consulting Engineers], the defendants have no way to anticipate
        the evidence that may be presented against them, nor are they
        able to marshal evidence in their defense. It is neither fair nor
Court of Appeals of Indiana | Opinion 19A-CR-1086 | December 6, 2019       Page 17 of 23
                reasonable to have the defendants speculate, at their peril, as to
                the particular activity they may or may not have engaged in.


                In addition, the offense charged must be described with sufficient
                particularity to permit the defense of double jeopardy in the event
                of a subsequent prosecution.


       Id. at 596. The Wurster court determined that the indictments did not enable the

       defendants “to anticipate the proof of the State’s case” and did not “protect the

       defendants from future prosecutions under the same or similar facts”, and it

       reversed the trial court’s denial of the defendants’ motions to dismiss. Id. at

       596. Our Supreme Court summarily affirmed the Court of Appeals’ dismissal

       of the indictments. Wurster v. State, 715 N.E.2d 341, 343 (Ind. 1999).


[23]   Tanoos urges that McDonnell v. U.S., 136 S. Ct. 2355 (2016), also supports his

       position. In that case, the Governor of Virginia and his wife were indicted on

       federal bribery charges related to their acceptance of $175,000 in loans, gifts,

       and other benefits from a Virginia businessman, Jonnie Williams, who was the

       CEO of a company that had developed a nutritional supplement, which

       Williams wanted Virginia’s public universities to research and study. To

       convict the McDonnells, the Government was required to show that Governor

       McDonell committed or agreed to commit an “official act” in exchange for the

       loans and gifts. 4 The Government argued that the Governor committed a




       4
         The federal bribery statute addressed in McDonnell, states, in part, that a public official who “directly or
       indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value
       personally or for any other person or entity, in return for . . . being influenced in the performance of any

       Court of Appeals of Indiana | Opinion 19A-CR-1086 | December 6, 2019                                 Page 18 of 23
       number of “official acts” including arranging meetings, hosting events, and

       contacting government officials about research studies. At the jury trial, the

       McDonnells requested an instruction that merely arranging a meeting,

       attending an event, or hosting a reception are not “official acts,” but the district

       court rejected the instruction. The jury convicted the McDonnells, and the

       Fourth Circuit affirmed Governor McDonnell’s conviction.


[24]   On appeal, the Court examined the federal bribery statute, 18 U.S.C.A. § 201,

       which Tanoos maintains is similar to Indiana’s, and adopted a “more bounded

       interpretation of ‘official acts’” than that sought by the Government, holding

       that an “official act” – defined in the statute as a “question, matter, cause, suit,

       proceeding or controversy” that “may at any time be pending” or “may by law

       be brought” before a public official – did not include “merely setting up a

       meeting, hosting an event, or calling another official.” 136 S.Ct. at 2358-59. A

       jury must be able “to determine whether the public official agreed to perform an

       ‘official act’ at the time of the quid pro quo.” Id. at 2371. The term “official

       act” must be “defined with sufficient definiteness that ordinary people can

       understand what conduct is prohibited,” and “in a manner that does not

       encourage arbitrary and discriminatory enforcement.” Id. at 2373. The




       official act . . . shall be fined under this title or not more than three times the monetary equivalent of the thing
       of value, whichever is greater, or imprisoned for not more than fifteen years, or both, and may be disqualified
       from holding any office of honor, trust, or profit under the United States.” 18 U.S.C.A. § 201(b)(2)(A)
       (emphasis added). The statute defines “official act” as “any decision or action on any question, matter,
       cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought
       before any public official, in such official’s official capacity, or in such official’s place of trust or profit. 18
       U.S.C.A. § 201(a)(3).

       Court of Appeals of Indiana | Opinion 19A-CR-1086 | December 6, 2019                                  Page 19 of 23
       McDonnell Court concluded that the jury instructions that were given were

       “significantly overinclusive” as they failed to explain to the jury how to identify

       the pertinent “question, matter, suit, cause proceeding, or controversy” and

       inform the jury that such “question, matter, suit, cause proceeding, or

       controversy” must be focused and specific – and, consequently, the jury could

       have thought that a typical meeting, call, or event satisfied the definition or

       convicted Governor McDonnell for “something as nebulous as Virginia

       economic development.” Id. at 2360. The Court vacated Governor

       McDonnell’s convictions.


[25]   Relying on those cases, Tanoos argues that (1) the McDonnell framework

       explaining “official act” supports his assertion that specificity in identification

       of what act he allegedly performed or agreed to perform is required and that

       influencing the VCSC school board “is exactly the type of nebulous, non-

       specific act” that McDonnell said does not constitute bribery, and (2) as in

       Wurster, none of the counts against Tanoos “identify a specific action Tanoos

       took; rather, each relies on a general notion that Tanoos would support

       continued business with ESG.” Appellant’s Brief at 8, 10. We are unpersuaded,

       however, that dismissal of the charges is warranted. While McDonnell may be

       relevant to the discussion, it does not govern our decision, as it concerned

       interpretation of the federal bribery statute’s definition of “official act” in the

       context of jury instructions. Its context is wholly distinct from that before us.


[26]   As to Wurster, we find it distinguishable. First, the charging information against

       Tanoos identifies three specific dates of the alleged bribes, whereas the Wurster

       Court of Appeals of Indiana | Opinion 19A-CR-1086 | December 6, 2019        Page 20 of 23
       indictment spanned a three-year time period. Second, the Wurster indictment

       asserted that the State Representative would support or promote unspecified

       legislative measures at some future unspecified time, whereas, here, the PCA

       identified specific ongoing and upcoming future contracts for VCSC school

       renovations, as well as a consistent pattern of ESG being the only GESC that

       Tanoos recommended and the only contractor that was awarded the contracts

       over the course of at least ten years. Thus, contrary to Tanoos’s claim, the PCA

       and the charging information identify a quid pro quo sufficient that Tanoos can

       anticipate the evidence that may be presented against him and marshal evidence

       in his defense.


[27]   More specifically, Count I was a Mo’s Steakhouse meal on August 24, 2013

       that Tanoos allegedly solicited and accepted days after Tischbein had raised the

       issue of the HP project with Tanoos. The PCA includes email correspondence

       showing that, the next month, Tischbein provided additional Colts game tickets

       and in October 2013, Tischbein corresponded with Tanoos asking “When

       would be a good time to talk about HP?” Appellant’s Appendix Vol. II at 33. The

       solicitation for the tickets and meal occurred as the school board was

       considering the HP project, which was awarded to ESG in March 2014.


[28]   Count II alleges the payment of restaurant charges and Count III alleges the

       payment of concert tickets and expenses. The PCA alleges that Tanoos

       solicited the concert tickets in January 2014, a few months before the $4 million

       Phase 8 contract that included HP was awarded to ESG in March 2014. On

       July 6, 2014, and while HP project was underway, Tanoos forwarded to

       Court of Appeals of Indiana | Opinion 19A-CR-1086 | December 6, 2019     Page 21 of 23
       Tischbein an email that Tanoos had received from an ESG competitor, saying,

       “FYI.” Id. at 34. Tanoos then emailed Tischbein and shared that he would be

       attending in July 2014 a conference in Nashville, along with said competitor.

       Tanoos then asked Tischbein on July 7 whether he would like to buy a dinner

       for Tanoos while he was in Nashville, Tennessee, and Tischbein ultimately

       personally paid for a $1116 meal on July 11 for Tanoos and others. Some days

       later, Tischbein advised that he had acquired the tickets for the REO

       Speedwagon August 2014 concert, which Tanoos, Tischbein and others

       attended at ESG’s expense. In September 2014, the Phase 8 contract ended.

       The PCA reflects that communications and exchanges continued in 2015, and

       in December 2015, Tanoos made a motion at a school board meeting to

       approve a contract for ESG to provide guaranteed energy savings to VCSC,

       which motion passed, and in April 2016, the Board approved a $5 million

       Phase 9 contract for ESG to work on the planned projects.


[29]   Tanoos suggests that “only when a formal Request for Qualifications was

       advertised, per the statute, for a project or phase would the possibility for ESG

       to gain business present itself,” and, here, in each of the three instances of

       alleged bribery “ESG had no pending bids before the VCSC School Board.”

       Brief at 6-7. However, we do not find that Indiana law precludes bribery only if

       negotiations of a pending contract are occurring.


[30]   The State asserts, and we agree, that “Tanoos’s arguments are not about legal

       deficiencies in the information,” but rather “amount to an assertion that he will

       be able to convince a jury that the alleged bribes were actually innocent acts of

       Court of Appeals of Indiana | Opinion 19A-CR-1086 | December 6, 2019      Page 22 of 23
       business development and there was no quid pro quo for these gifts.” Appellee’s

       Brief at 12. As stated, a motion to dismiss an information is not a proper vehicle

       for raising questions of fact to be decided at trial or facts constituting a defense.

       See State v. Sturman, 56 N.E.3d 1187, 1196 (Ind. Ct. App. 2016). The trial court

       properly denied Tanoos’s motion to dismiss.


[31]   Judgment affirmed.


       Brown, J. and Tavitas, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CR-1086 | December 6, 2019       Page 23 of 23
