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DOCUMENT 48

ELECTRONICALLY FILED 5/31/2018 5:03 PM 01-CC-2017-004044.00 CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA ANNE-MARIE ADAMS, CLERK
ELECTRONICALLY FILED
5/31/2018 5:03 PM
01-CC-2017-004044.00
CIRCUIT COURT OF
JEFFERSON COUNTY, ALABAMA
ANNE-MARIE ADAMS, CLERK

IN THE CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA

STATE OF ALABAMA,

) )

v.

) CASE NO.

CC-2017-004044

SHERRY WELCH LEWIS,

) )

Defendant.

) )

STATE OF ALABAMA,

) )

v.

) CASE NO.

CC-2017-004045

JERRY DEWAYNE JONES,

) )

Defendant.

) )

STATE OF ALABAMA,

) )

v.

) CASE NO.

CC-2017-004046

TERRY LEE WILLIAMS,

) )

Defendant.

) )

STATE’S RESPONSE IN OPPOSITION TO DEFENDANTS’ MOTIONS TO DISMISS AND MOTIONS FOR MORE DEFINITE STATEMENT

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STATE’S RESPONSE IN OPPOSITION TO DEFENDANTS’ MOTIONS TO DISMISS AND MOTIONS FOR MORE DEFINITE STATEMENT

The State of Alabama submits this Response in Opposition to the Motions to

Dismiss, or in the alternative, Motions for More Definite Statements filed by

Defendants Sherry Lewis, Jerry Jones, and Terry Williams (collectively,

“Defendants”). Regardless of how this Court construes the motions, they are due to

be denied because the indictments track the language of the charged statutes and are

otherwise constitutionally sufficient; the State is not required to identify evidentiary

facts like the date and location of wrongful conduct in an indictment; the Defendants’

double-jeopardy concern is premature, and regardless, the indictments, coupled with

the State’s discovery, which includes specific identification of the State’s trial

exhibits, 1 remove any double-jeopardy issues in these cases; and Alabama law does

not recognize a “bill of particulars” or otherwise require the State to provide

additional facts in its indictments. See Ala. R. Crim. P. 13.5(c)(1) (limiting motions

to dismiss an indictment to objections to the venire, lack of qualifications of an

individual grand juror, the legal sufficiency of the indictment, or the failure of the

indictment to charge an offense).

1 The State sent defense counsel a letter on May 25, 2018, which included a spreadsheet identifying the Bates number(s) of the State’s anticipated trial exhibits. May 25 Letter, attached as Exhibit 2. While subject to change and supplementation, this removes any doubt that the Defendants cannot review the discovery in these cases.

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The motions for a more definite statement should also be denied because the

Defendants have not shown “good cause,” as required by Alabama Rule of Criminal

Procedure 13.2(e). As this Response and exhibits demonstrate, 2 the law, the

indictments, and the discovery put the Defendants on notice of the crimes with which

they have been charged.

INTRODUCTION

This is a case where Defendant Sherry Lewis, a Member and former Chair of

the Board of Directors of the Water Works Board of the City of Birmingham

(BWWB), unlawfully used her position and influence to obtain money, a no-show

job for a family member, and free meals and other improper benefits. Lewis got

those things from two people: Defendant Jerry Jones, a former Vice President of

Arcadis U.S. Inc., and Defendant Terry Williams, an Arcadis subcontractor. Jones

was the manager of the BWWB account with Arcadis and he ostensibly hired

Williams and his company, Global Solutions, LLC, to work on BWWB projects.

Since 2003, Arcadis has been the independent engineering firm for the

BWWB and, in addition to this lucrative contract, Arcadis has obtained many

multimillion-dollar contracts from the BWWB. Through the votes of Lewis (and the

2 All the selected documents are available in the discovery the State has produced or made available to the defendants. This Response refutes their claims that “the indictment is legally insufficient” and fails to place the Defendants on notice. It is neither an exhaustive list of the State’s evidence nor its theories of criminal liability.

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other BWWB members) approving these contracts and payments, Arcadis has made

tens of millions of dollars to advise and work on important, technical issues affecting

the nearly one-million people drinking and using BWWB water. As Arcadis’s

account manager for the BWWB contract, it was Jones’s job to maintain the lucrative

relationship and to protect it from other firms desiring the BWWB’s business. For

his client-management services, Jones earned more than $300,000 per year.

Williams’s company, GSI, derived nearly all of its revenue from Arcadis

subcontracts on BWWB work that Jones steered to him. Lewis cast votes and took

official action to benefit Jones and Williams while she used her public position to

obtain personal gain.

Specifically, Jones and Williams provided Lewis’s son, Joseph Lewis, with a

no-show job with Williams’s company. Despite never accomplishing a single task,

Joseph Lewis received more than $25,000 from GSI. Joseph Lewis gave much of

that money to his mother via regular cash deposits into her bank account, often on

the same day Williams paid him. Lewis then spent that money on the rent for Joseph

Lewis’s apartment and on her own personal expenses. Jones also deposited money

into Lewis’s bank account. In one case, he wrote “loan repay” on the check, even

though Lewis never loaned him money.

Additionally, when Lewis traveled for BWWB business, Jones often paid the

bill. On numerous occasions, Jones filed false expense reports and reimbursement

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requests with Arcadis about meals that Jones bought for Lewis or her family. For

her part, Lewis concealed that her sixty-plus votes for Arcadis benefited her

financially and that her refusal to consider other engineering firms for public work

had a personal motivation. By prioritizing personal financial gain over honest

government, the Defendants violated the Alabama Ethics Act.

ARGUMENT

  • I. This Court should deny the Defendants’ motions to dismiss. This Court should reject each of the four bases the Defendants assert in asking

this Court to dismiss the indictments.

  • A. The indictments are constitutionally sufficient because they meet the applicable legal standards.

The indictments in these cases are legally sufficient because they meet the

applicable legal standards. That is, they track the language of the Ethics Act statutes

the Defendants have been charged with violating; there are no missing elements in

the indictments; and the statutes prescribe with definitiveness the elements of the

offenses. The Defendants’ motions do not assert that the indictments fail to do any

of the above three things. This means their motions should be denied on their face

because they do not raise any legally sufficient argument to dismiss the indictments.

Under Alabama Rule of Criminal Procedure 13.2, an indictment “shall be a

plain, concise statement of the charge in ordinary language sufficiently definite to

inform a defendant of common understanding of the offense charged and with that

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degree of certainty which will enable the court, upon conviction, to pronounce the

proper judgment.” The commentary to Rule 13.2 states that the “rule is designed to

simplify the pleading in criminal matters.”

Alabama courts have recognized the effect of Rule 13.2 and have responded

by demanding only that an indictment meet a certain threshold standard. For

example, Alabama caselaw holds that “[a]n indictment is sufficient if it substantially

follows the language of the statute violated, provided the statute prescribes with

definitiveness the elements of the offense.” Travis v. State, 776 So. 2d 819, 836

(Ala. Crim. App. 1997), aff’d, 776 So. 2d 874 (Ala. 2000) (emphasis added); Ex

parte Allred, 393 So. 2d 1030, 1032 (Ala. 1980). Additionally, “[t]he [State] need

only allege the ‘essential facts necessary to apprise a defendant of the crime

charged’ and not its theory of the case.” Hunt v. State, 642 So. 2d 999, 1026 (Ala.

Crim. App. 1993), aff’d, 642 So. 2d 1060 (Ala. 1994) (quoting United States v.

Schmidt, 947 F.2d 362, 369 (9th Cir. 1991)) (emphasis added). This is because

“under our system of pleading, indictments are rather a statement of legal

conclusions, than of facts.” Harris v. State, 580 So. 2d 33, 38 (Ala. Crim. App.

1990) (quoting Hochman, 91 So. 2d at 501) (emphasis added). It “is not required

that an indictment set up the proof necessary to a conviction.” Hochman, 91 So. 2d

at 502.

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Accordingly, the sufficiency of an indictment essentially turns on whether it

places a defendant on notice of the crime with which he has been charged. An

indictment need not notify a defendant of the evidentiary facts that the State will

produce in discovery, and ultimately, present during its case-in-chief at trial. Given

the simplified standard of pleading, the indictments in these cases are sufficient

because they charge the elements of the statutory offenses in the words of the

statutes. See Ex parte Allred, 393 So. 2d 1030, 1032 (Ala. 1980). Specifically, the

indictments track the language of the Ethics Act statutes charged, and they contain

all the elements of those offenses. For example, Defendant Sherry Welch Lewis, a

Member of the Board of Directors of the Water Works Board of the City of

Birmingham was charged with one count of using her official position or office for

personal gain, in violation of Alabama Code section 36-25-5(a), which provides:

No public official or public employee shall use or cause to be used his or her official position or office to obtain personal gain for himself or herself, or family member of the public employee or family member of the public official, or any business with which the person is associated unless the use and gain are otherwise specifically authorized by law. Personal gain is achieved when the public official, public employee, or a family member thereof receives, obtains, exerts control over, or otherwise converts to personal use the object constituting such personal gain.

The indictment charging Defendant Lewis with violating Section 5(a) reads:

The Special Grand Jury of Jefferson County charge that, before the finding of this indictment, SHERRY WELCH LEWIS, whose name is otherwise unknown to the Grand Jury, being a public official, to wit:

a Member of the Board of Directors of the Water Works Board of the

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City of Birmingham, did intentionally use or cause to be used her official position or office to obtain personal gain for herself, a family member, or a business with which she is associated, and such use and gain were not otherwise specifically authorized by law, in violation of section 36-25-5(a) of the Code of Alabama, against the peace and dignity of the State of Alabama.

(Indictment, attached hereto as Exhibit 1).

Plainly, the indictment tracks Section 5(a)’s statutory language and contains

all the elements of the offense. The remaining counts in Lewis’s indictment also

track the relevant statutory language in full, as do the three respective counts in the

indictments against Defendants Jones and Williams. The Defendants’ motions do

not assert that any count of any indictment fails to track the statutory language or

that an element of an offense is missing from the indictment. Thus, the only

remaining issue is whether the statutes charged in the indictments prescribe with

definiteness the elements of the offenses. See Ex parte Allred, 393 So. 2d at 1032;

Copeland v. State, 456 So. 2d 1150, 1151 (Ala. Crim. App. 1984).

On that issue, Alabama courts have held that the Ethics Act statutes provide

definiteness to the elements of the offenses. In Hunt v. State, 642 So. 2d 999, 1026–

28 (Ala. Crim. App. 1993), the Alabama Court of Criminal Appeals rejected the

argument that a previous but substantially similar version of Section 36-25-5(a)—

which the Defendants are charged with—was so vague and indefinite that the

indictment should be dismissed. The court wrote: “Here, § 36-25-5(a), the statute

under which Hunt was indicted and convicted, provides fair warning of what is

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forbidden

. . . .

Clearly, this section informs ordinary people of the prohibited

conduct.” Hunt, 642 So. 2d at 1027 (internal citations omitted). In reaching this

conclusion, the court said, “We reject Hunt’s arguments that, ‘[a]s written, the statute

could be taken to untold limits,’ and the ‘Ethics Act vests almost absolute discretion

in the Attorney General to decide what constitutes using one’s office for direct

personal financial gain.’” Id. at 1028 (citing Appellant’s Br. at 73–74).

The Defendants’ motions have identified no basis in fact or law on which this

Court could depart from Hunt. Just as in Hunt, in giving the words in the Ethics Act

statutes their “natural, plain, ordinary, and commonly understood meaning,” the

Defendants are on notice of the offenses with which they have been charged. See id.

at 1027–28 (holding that the terms “direct financial gain” and “obtains” were not too

vague, even considering the duty to strictly construe criminal statutes). Because this

is all that Rule 13.2 requires, the indictments in these cases are legally sufficient.

Finally, the Defendants’ reliance on Chambers v. State, 364 So. 2d 416 (Ala.

Crim. App. 1978), is misplaced. Like Hunt, Chambers rejected the defendant’s

argument that an indictment’s terms were vague and indefinite. 364 So. 2d at 419.

Specifically, the court held that the words “willful abuse” and “torture” were not

vague and indefinite, and that the defendant was on notice of the crime with which

he was charged. Id. In so ruling, the court compared the indictment presented in its

case with prior indictments under a previous and no longer operative child-abuse

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statute. It concluded that under the prior statute, a defendant may not have been on

notice of the crime with which he was charged because the old statute used terms

like “unjustifiable pain” and “ordinary and reasonable punishment.” Id. It stated:

“[t]hese are subjective terms and there are no standards whereby one can determine

what constitutes the crime.” Id. In contrast, the court concluded that the indictment

returned under the new statute—which used terms that were definite—placed the

defendant on notice of the crime with which he was charged. Id. at 419–20.

If anything, then, the effect Chambers has on these cases is limited. It

represents yet another case, in a long line of cases, holding that an indictment is

sufficient so long as it tracks the statutory language, identifies all the elements of the

offense, and includes elements that are not vague and indefinite. The Defendants are

simply incorrect to state that Chambers held or even suggested in any way that an

indictment under Alabama’s Ethics Act requires something more. Accordingly, this

Court should deny the Defendants’ motions to dismiss because the indictments are

legally sufficient.

  • B. Alabama law does not require the State to include evidentiary facts such as the date, location, or a description of the specific wrongful conduct in an indictment.

The Defendants are not entitled to evidentiary facts such as the time, location,

or specific conduct involved in the charged offenses because those facts are not

elements of the offenses charged. Under Rule 13.2, an indictment must contain only

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a “statement of legal conclusions,” not “evidentiary facts necessary to a conviction.”

Ala. R. Crim. P. 13.2, Committee Comments (citing Hochman v. State, 91 So. 2d

500, 501 (Ala. 1956)). Yet, evidentiary facts are precisely what the Defendants are

seeking, and there is no basis in law to get them.

Rule 13.2(d) states that “[i]t is not necessary to state the precise time or date

at which or on which the offense is alleged to have been committed or the place

where the offense is alleged to have been committed unless the time or place is a

material element of the offense.” In these cases, neither the time nor the location are

elements of the crimes with which the Defendants have been charged. Accordingly,

this Court should deny the Defendants’ motions that the indictment be dismissed or

amended. See Ala. R. Crim. P. 13.5(c)(1). The State will prove these evidentiary

facts—as it must in every criminal case—at the appropriate time: the State’s case-

in-chief at trial.

  • C. The Defendants’ double-jeopardy concern is premature, and regardless, the indictments, coupled with the discovery, remove any double jeopardy issue in these cases.

The Defendants’ double-jeopardy concern is premature, and regardless, the

indictments and the State’s discovery provide sufficient information to remove any

double-jeopardy issue. For these reasons, this Court should deny the Defendants’

motions as to this issue.

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Alabama law provides criminal defendants with three types of protection

under the Double Jeopardy Clause: “It protects against a second prosecution for the

same offense after acquittal. It protects against a second prosecution for the same

offense after conviction. And it protects against multiple punishments for the same

offense.” Gholston v. State, 57 So. 3d 178, 184 (Ala. Crim. App. 2010) (quoting

North Carolina v. Pearce, 395 U.S. 711, 717 (1969)). Alabama courts have held

there is no double-jeopardy violation if a defendant is charged with two offenses

arising out of the same course of conduct, so long as each charged offense “require[s]

proof of an element not present in the other offense

. . .

.” Sheffield v. State, 959 So.

2d 692, 696 (Ala. Crim. App. 2006).

In their motions, the Defendants appear to argue that unless additional factual

detail is provided, the Defendants could be tried again for the same crime after being

acquitted. Motions at 6–7. Given the stage of the litigation, this is a premature

challenge as jeopardy has not attached. See Ala. R. Crim. P. 13.5(c)(2) (prohibiting

invalidation of a charge for any defect or imperfection “which does not tend to

prejudice the substantial rights of the defendant upon the merits”). But even on the

merits, there is no double-jeopardy concern because the indictments state in plain

and ordinary language the crimes with which the Defendants have been charged.

That is all Rule 13.2 requires, and the Hunt decision demonstrates that the elements

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of an offense under the Ethics Act are not vague and indefinite. Hunt v. State, 642

So. 2d at 1026–28.

In addition, the discovery produced by the State clarifies and illuminates these

crimes. The Defendants need only review the indictments and the State’s discovery

to determine which crimes jeopardy could attach to. See R.L.G. v. State, 712 So. 2d

348, 363 (Ala. Crim. App. 1997) (“Cases note that any critical details that are

available may be gathered by the defendant through a preliminary hearing; a motion

for a more definite statement

. . .

and pretrial discovery procedures.”). As the R.L.G.

court recognized, if the Defendants want more facts about the crimes with which

they have been charged, reviewing the State’s discovery is the way to do so. Thus,

the State has removed any double-jeopardy concern.

This Court should also reject the Defendants’ arguments that the indictments

leave them uncertain whether the crimes with which they have been charged are

based on the same or different set of facts as the crimes with which the other

Defendants have been charged. This is simply not an issue that is cognizable under

the Double Jeopardy Clause. Regardless, the special grand jury’s decision to charge

Defendants Jones and Williams as aiders and abettors on two counts is not otherwise

subject to attack simply because one or more other Defendants were involved in the

alleged criminal activity. See Bridges v. State, 263 So. 2d 705, 707 (Ala. Crim. App.

1972) (holding that Alabama abolished the distinction between aiders and abettors,

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and thus, punishes the latter as principals). Because Alabama law treats accomplices

the same as principals, there is no legal justification that permits the Defendants to

acquire evidentiary facts related to the other Defendants’ indictments. See Smith v.

State, 797 So. 2d 503, 514 (Ala. Crim. App. 2000) (holding that it was not necessary

that an indictment indicate which defendant committed each separate act during the

commission of a kidnapping-murder because the distinction between principals and

accessories is irrelevant).

Accordingly, the Defendants are not entitled to any additional facts or to

dismissal of the indictments because the special grand jury issued indictments

against three defendants. In addition, the Defendants’ double-jeopardy argument is

premature, and the State removed any such issue because the indictments, combined

with the discovery, identify those offenses to which jeopardy could attach.

  • D. Alabama law does not entitle the defendants to a “bill of particulars.”

Finally, this Court should reject the Defendants’ assertion that the indictments

are legally insufficient because they do not “apprise” them of the “wrongful

conduct” or provide them with the “level of conduct” of which they have been

accused. Motions at 2. It appears that the Defendants are asking this Court to order

the State to provide them with a “bill of particulars.” They are not entitled to one,

however, because Alabama does not recognize such a thing, and “the practice has

never prevailed in this State.” Jones v. State, 34 So. 236, 238 (Ala. 1903); see also

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Johnson v. State, 335 So. 2d 663, 672 (Ala. Crim. App. 1976) (“An accused is not

entitled to a bill of particulars under Alabama law.”)

To the extent the Defendants are not requesting a bill of particulars, they still

are not entitled to an advance blueprint of the State’s trial strategy. Rather, Alabama

courts hold that a defendant is expected to seek answers to such questions by

reviewing the indictments, the law, and the discovery. See R.L.G. v. State, 712 So.

2d 348, 363 (Ala. Crim. App. 1997) (noting that critical details of a case may be

gathered through a preliminary hearing, a motion for a more definite statement, and

pretrial discovery procedures). For these reasons, this Court should deny the

Defendants’ motions to be otherwise apprised of the wrongful conduct or the level

of conduct concerning the crimes with which they have been charged.

*

*

*

This Court should deny the Defendants’ motions to dismiss because they have

not provided the Court with a legally sufficient reason to dismiss the indictments.

The indictments track the statutory language, contain all the elements of the offenses,

and those elements are definite; there is no legal basis to require the indictments to

contain evidentiary facts like the time and location of the wrongful conduct; the

indictments, coupled with the State’s discovery, remove any double-jeopardy issue

in these cases; and the Defendants are not entitled to a bill of particulars or to

otherwise be apprised of their level of conduct. Because the Defendants have not

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satisfied the requirements of Rule 13.5(c)(1), they are not entitled to a dismissal of

the indictments.

II. The Defendants’ motions for a more definite statement should be denied.

This Court should deny the Defendants’ motions for more definite statements

because they have not shown good cause under Rule 13.2. As explained above, an

indictment must only contain a statement of legal conclusions, not the evidentiary

facts necessary to obtain a conviction. This theme of limited notice is echoed by the

rule that a motion for more definite statement should only be granted “for good cause

shown,” and that such a motion should “not be routinely made or granted.” Ala. R.

Crim. P. 13, cmt. Courts have held that such a motion is appropriate when an

indictment fails to allege a mental state, A.L.L. v. State, 42 So.3d 146, 147 (Ala.

2009), or when an indictment fails to elect the applicable statutory subsection,

Harrison v. State, 879 So. 2d 1339, 1339 (Ala. Crim. App. 1994). The Defendants’

cases plainly do not present such compelling justifications.

The Defendants’ motions should also be rejected because the State’s

discovery production, considered along with the indictment, is more than sufficient

to inform the Defendants of the nature of the crimes with which they have been

charged. See R.A.S. v. State, 718 So. 2d 117, 121 (Ala. 1998) (“The Court of

Criminal Appeals correctly noted that any critical details that are available to the

State could be gathered by the defendant through a preliminary hearing, a motion

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for a more definite statement as authorized by Rule 13.2(e), Ala. R. Crim. P., or any

other pretrial discovery procedures.” (emphasis added).

The State satisfied its discovery obligations under Rule 16.1, Ala. R. Crim. P.,

in February, by making available and subsequently providing the Defendants with

copies of all discoverable items in these cases.

[T]he prosecutor shall

permit

the defendant to analyze, inspect, and copy

documents, photographs, [and]

tangible objects

. . .

which are within the possession, custody, and control of the state

. . .

and which are material to the preparation of the defendant’s case.”). Production

was made using a word-searchable format that allows the Defendants to be on equal

footing with the State. In addition, the State has provided a preliminary list of its trial

exhibits in a letter that included the Bates number(s) Defendants can utilize as an aid

in the review of the discovery. (May 25 Letter, attached hereto as Exhibit 2).

Accordingly, the Defendants are on notice of the crimes with which they are

charged, and they possess the necessary information to understand the charged

offense and to prepare any defense. In sum, the facts the Defendants seek in their

motions are already in their possession. These charges are illuminated by the

following examples, which are available in the State’s discovery.

  • A. The discovery illuminates Count One of the indictments.

The Birmingham City Council appointed Defendant Lewis as a board member

for the BWWB on December 9, 2008. (AG_BWWB_DOCS_00598054, attached

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hereto as Exhibit 3). As a board member, Lewis is a “public official” under

Alabama’s Ethics Laws. See Ala. Code § 36-25-1(16). For purposes of the Ethics

Laws, Lewis’ son, Joseph Lewis, is a member of her family. See Ala. Code § 36-25-

1(15) (defining “Family Member of the Public Official”). Because Joseph Lewis is

a member of Lewis’s family, his former employer, GSI, and his current employer,

SARCOR, are businesses with which Lewis is associated. See § 36-25-1(2) (defining

“business with which the person is associated”).

The State alleges Defendants Jones and Williams intentionally aided and

abetted Lewis’s use of her public office for personal gain. A person is legally

accountable for the behavior of another constituting a criminal offense if, with the

intent to promote or assist the commission of the offense, he aids or abets such other

person in committing the offense. See Ala. Code § 13A-2-23; see also Stokley v.

State, 254 Ala. 534, 49 So. 2d 284 (1951) (“All persons concerned in commission

of felony are guilty as principal on proof of a conspiracy or of aiding and abetting.”).

In April 2012, Joseph Lewis was a student at Alabama A&M University,

living in Madison, Alabama. Lewis supported her son financially by signing the

lease on his apartment and by paying the rent. (AG_SUMTREEAPTS_00000048;

AG_REGIONS_SL_0001 to 2277, attached hereto as Exhibits 4 and 5) [Exhibit 5

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omitted from public filing 3 ]. The defense does not deny that Lewis asked Defendant

Jones to help find her son a job. At the time, Jones was the account manager for

Arcadis’s BWWB contract. At nearly every BWWB meeting, Lewis voted on

whether to pay Arcadis for work Jones oversaw. Not long after Lewis asked Jones

for help, Defendant Williams hired her son to build a website for GSI in April 2012.

(AG_AVADIAN_JL_5790_001 to 671, attached hereto as Exhibit 6) [omitted from

public filing]. Williams’s company, GSI, was a frequent subcontractor of Arcadis

and received nearly all of its revenue from Arcadis, for BWWB work that Jones

directed to Williams.

After paying Joseph Lewis for more than a year despite his performing no

work, Williams emailed him in June 2013, saying, “Joe, please send me your ideas

on the website. I’d like to get something up by early July.” Three days later, Joseph

responded, “Ok.” Three weeks later, Joseph sent another email to Williams stating,

“I’m still working the ideas for your website…. Will have something to you soon.”

(AG_TW_GSI_00028518; AG_TW_GSI_ 00028517, attached hereto as Exhibits 7

and 8). Even after this exchange, Joseph Lewis never followed through on the

website. Despite this, Joseph Lewis continued to receive paychecks from GSI until

December 2013. (AG_AVADIAN_JL_5790_001 to 671) [omitted from public

3 Due to privacy concerns and logistical considerations because of their size, large exhibits or exhibits containing financial records have been omitted from the public filing of this response. Upon request of the Court, the State will produce such records for in camera inspection.

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filing]. In fact, Williams paid another designer to build a GSI website in December

2013. (AG_BBT_TW_00001973, attached hereto as Exhibit 9). Defendant Williams

paid Joseph Lewis forty paychecks totaling approximately $26,000 over 20 months

for no work product. (AG_AVADIAN_JL_5790_001 to 671) [omitted from public

filing]. The State has produced a recorded interview of Williams in which

investigators with the Attorney General’s Office asked Williams whether Lewis

knew her son was getting paid despite not doing any work. He replied, “How could

she not know?”

While he was being paid by GSI, between May 2012 and October 2013,

Joseph Lewis regularly deposited cash into his mother’s Regions checking account.

(AG_AVADIAN_JL_5790_001 to 671; AG_REGIONS_SL_0001 to 2277)

[omitted from public filing]. In total, Joseph Lewis made twenty-seven deposits into

Defendant Lewis’s bank account between May 2012 and October 2013. He made

thirteen of those deposits on the same day GSI paid him. He made another 12

deposits within a week of being paid by GSI. (Id.) All together, Joseph Lewis

deposited at least $12,540 into Defendant Lewis’s bank account between May 2012

and October 2013. (Id.) In return, Lewis used some of the money her son received

from GSI to pay the rent on Joseph Lewis’s apartment. (Id.) In fact, Lewis paid

$10,650 in rent to Summer Tree Apartments for Joseph Lewis over two years. (Id.)

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Not only did Jones funnel money to Lewis through her son and GSI, he also

deposited money directly into Lewis’s Regions bank account. The State produced a

Regions security video made in April 2016 (and a still image taken from that video),

showing Jones withdrawing $1,400 in cash from his own bank account at the

Regions Bank Five Points branch. (AG-REGIONSSTILL_001);

AG_REGIONS_JJ_0001 to 2191; AG_REGIONS_SL_0001 to 2277; attached

hereto as Exhibits 10, 11, and 12) [Exhibits 11 and 12 omitted from public filing].

Approximately one minute later, Jones deposited $1,400 into Lewis’s account. (Id.)

Less than one month later, Jones stopped at the Regions Bank Alabaster branch,

withdrew $1,000 from his own bank account, and two minutes later deposited $600

into Lewis’s account. Even though Lewis never loaned Jones money, Jones wrote

“loan repay” on the memo line. (Id.)

The State’s discovery permits Defendants to understand why Lewis has been

charged with using her office for personal gain for herself, her son Joseph Lewis,

and a business with which she was associated, GSI. This discovery further permits

Defendants to understand the accomplice-liability theory charged in the relevant

indictments.

  • B. The discovery illuminates Count Two of the indictments.

Count two of the indictment charges that Lewis, as a member of county or

municipal regulatory board, intentionally participated in or voted on a matter in

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which she or a family member had a financial gain or interest. Jones and Williams

are charged as aiders and abettors to Lewis’s votes. As explained above in count one,

Joseph Lewis was paid as an employee of Arcadis subcontractor, GSI, between April

2012 and December 2013. In March 2014—three months after GSI quit paying

Joseph Lewis—Selena Rodgers Dickerson, the owner of another Arcadis

subcontractor named SARCOR, hired Joseph Lewis as an intern. Joseph Lewis

began receiving a paycheck in April 2014. (AG_AVADIAN_JL_5790_001 to 671)

[omitted from public filing].

Despite never disclosing that her son worked for Arcadis subcontractors,

between 2012 and 2016, Defendant Lewis was present and voted for Arcadis (f/k/a

Malcom Pirnie) to receive money on at least 65 occasions. The State produced all of

the BWWB meeting minutes 4 from that time to the Defendants in discovery

(AG_BWWB_DOCS_00049426 to 84377, attached hereto as Exhibit 13) [omitted

from public filing]. An example of such a document, the minutes from the October

25, 2016, meeting is attached hereto as Exhibit 14. (AG_BWWB_DOCS_00084366

to 84377). While Lewis received ethics training as a public official and filed

statements of economic interest with the Alabama Ethics Commission

(AG_ETHICS_00001685; AG_ETHICS_00001677; AG_ETHICS_00001681,

4 Due to the size of the documents, the minutes from every meeting between 2012 and 2016 have been omitted from the public filing. Upon request of the Court, the State will produce such records for in camera inspection. They are also available from the BWWB as a public record.

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attached hereto as Exhibits 15, 16, and 17), she never recused or otherwise refrained

from voting to pay Arcadis. The State’s discovery shows that some of the money

Lewis voted to pay Arcadis, GSI, and SARCOR was given to her son, who later

deposited a portion of the money into her personal bank account. Thus, Defendants

can ascertain the offenses charged in Count Two of the indictments.

  • C. The discovery illuminates Count Three of the indictments.

Count three of the indictment charges that Lewis intentionally solicited or

received a thing for the purpose of corruptly influencing her official action. Ala.

Code § 36-25-7(b). Jones and Williams are charged with intentionally offering or

giving Lewis a thing for the purpose of corruptly influencing her official action. Ala.

Code § 36-25-7(a). The Alabama Ethics Act defines “corruptly” as “to act

voluntarily, deliberately, and dishonestly to either accomplish an otherwise lawful

end or result.” Ala. Code § 36-25-7(e). These charges are further illuminated by the

following examples, which are available in the State’s discovery.

As explained above, at board meetings, Lewis regularly voted on whether to

authorize payments to Arcadis for its work as BWWB’s independent contractor, as

well as whether to authorize approval for Arcadis to perform additional work outside

the scope of the independent engineering contract. (ARC000148010 to 148017,

attached hereto as Exhibit 18). Because of Lewis’s votes and other official action as

a public official, Arcadis earned tens of millions of dollars from the BWWB.

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(AG_BWWB_DOCS_00049426 to 94057) [omitted from public filing]. A full

accounting of the times Lewis voted to pay Arcadis and the amount of money

Arcadis received from Lewis’s votes is available in the State’s discovery, in addition

to being available as public records held by the BWWB.

On more than one occasion, Jones falsified expense reports to hide his

methods of corrupt influence. For example, on Valentine’s Day 2013, Lewis and

Jones scheduled a one-night layover together in Las Vegas before they would join

other BWWB employees and vendors at a utility-management conference in

Phoenix. Jones hid this secret getaway and justified his expenses by telling Arcadis

that he got stranded in Las Vegas because his plane was delayed. In truth, Lewis and

Jones had already booked one-way plane tickets from Birmingham to Las Vegas

nearly a month before their March 9th business conference.

(AG_CAPONE_SL_9309_00000217 to 219; ARC AL000000926;

AG_BWWB_EMAIL_GA_00095149, attached hereto as Exhibits 19, 20, and 21).

According to Jones’s expense reports, he stayed in the Embassy Suites, and he and

Lewis shared a $357 dinner at Michael Mina, a restaurant inside the Bellagio Hotel.

(ARC AL000000916; ARC AL000000923, attached hereto as Exhibits 22 and 23).

There is no record of a hotel room for Lewis. Because of Jones’s deception in

submitting that his “flight [was] delayed en route to Phoenix” Arcadis paid for Jones

and Lewis’s night in Las Vegas. (ARC AL000000916).

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On December 22, 2014, Jones expensed, as a BWWB event, a dinner to

Arcadis at Gianmarco’s Restaurant in Homewood that included Lewis, Joseph

Lewis, Lewis’s mother, and an unidentified man. (AG_FBI_00000608; ARC

AL000001881, attached hereto as Exhibits 24 and 25). This dinner cost $553.25

(Id.), and occurred the night before the BWWB—with Lewis’s yes vote—approved

a payment to Arcadis for more than $6 million. (AG_BWWB_DOCS_00050013,

attached hereto as Exhibit 26).

In June 2016, Lewis, Jones, and others attended a water conference in

Chicago. (AG_BWWB_DOCS_00034645 to 34650, ARC AL000002637, attached

hereto as Exhibits 27 and 28). Jones’s expense reports show that he requested

reimbursement from Arcadis for dinners he labeled as BWWB events, including one

at Capital Grille on June 19, 2016, which the FBI surveilled. (Id.) On his expense

report to Arcadis, Jones lists himself and Lewis as eating dinner at Capital Grille,

when in fact Jones was not there. Instead, Arcadis, by virtue of Jones’s actions,

picked up the tab for Lewis, her son, and two other individuals not associated with

Arcadis. (ARC AL000002637; AG-FBISTILL005; AG-FBISTILL004, attached

hereto as Exhibits 29 and 30).

At the time, Lewis paid $699.79 for the dinner with her own credit card, which

Jones submitted as his own receipt for reimbursement to Arcadis. (ARC

AL000002666, attached hereto as Exhibit 31). On June 25, Jones wrote a check to

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Joseph Lewis for $600, notating “Dinner in Chicago” on the memo line.

(AG_WF_JJ_001-785, attached hereto as Exhibit 32 [omitted from public filing].

On June 30, 2016, Joseph Lewis cashed the $600 check from Jones and deposited

$700 into his mother’s bank account, which fully reimbursed his mother for the

dinner that Jones did not attend. (AG_REGIONS_SL_0001 to 2277) [omitted from

public filing].

During the same Chicago trip, Jones lied on additional expense reports. On

June 20, 2016, the night after the dinner at Capital Grille, Jones expensed $381.07

for a dinner at a Chicago restaurant called Rosebud. This time, Jones did not identify

Lewis as joining him for dinner even though FBI surveillance showed otherwise.

(ARC AL000002638; AG-FBISTILL002; AG-FBISTILL001, attached hereto as

Exhibits 33, 34, and 35). On June 22, Jones did the same thing at Wollensky’s Grill

for a dinner that cost $464.89 and included Lewis, though she was not listed as an

attendee. (ARC AL000002639; AG-FBISTILL0010; AG-FBISTILL0011, attached

hereto as Exhibits 36, 37, and 38). All told, Lewis obtained a job for her son that she

never disclosed, received cash deposits from her son and Jones, and enjoyed dinners

paid for with falsified expense reports. These actions were for the purpose of

corruptly influencing Lewis, and they violated the Ethics Act. By offering and

providing these things, Defendants Jones and Williams also violated the Ethics Act.

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*

*

*

In sum, this Court should deny the Defendants’ motions for a more definite

statement because the indictments, read together with the discovery, place the

Defendants on notice of the crimes with which they are charged.

CONCLUSION

For the foregoing reasons, the State respectfully asks this Court to deny the

Defendants’ motions to dismiss. The indictments are legally sufficient and place the

Defendants on notice of the crimes with which they have been charged. Additionally,

the State asks this Court to deny their alternative motions for more a definite

statement because of their failure to show good cause.

Respectfully submitted this 31st day of May, 2018.

Steve Marshall Attorney General

s/ Peggy Rossmanith Peggy Rossmanith

Assistant Attorney General

James R. Houts

Deputy Attorney General

Kyle Beckman

Assistant Attorney General

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STATE OF ALABAMA OFFICE OF THE ATTORNEY GENERAL

501 Washington Avenue Montgomery, AL 36130 (334) 242-7300 srossmanith@ago.state.al.us jhouts@ago.state.al.us kbeckman@ago.state.al.us

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CERTIFICATE OF SERVICE

I certify that on May 31, 2018, I electronically filed the foregoing using the AlaFile system, which will send notification of such filing to all parties of record in the case.

s/ Peggy Rossmanith

Assistant Attorney General

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