STATE OF INDIANA ) IN THE MARION SUPERIOR COURT

) SS: CRIMINAL DIVISION, ROOM 4

COUNTY OF MARION )
CAUSE NO.: 49G04-1809-FC-032385

STATE OF INDIANA )
Plaintiff, )
)
v. )
)
DANIEL TANOOS )
Defendant. )

FINDINGS OF FACT AND CONCLUSIONS OF LAW

FINDINGS OF FACT

Procedural History

1. The State filed charges against Daniel Tanoos (“Tanoos”) on September 24, 2018 in the

Marion County Superior Court, Criminal Division 4, under cause number 49G04-1819-FC-

032385.

2. The State charged Tanoos with three counts of Bribery; one count as a Class C Felony, and

two counts as Level 5 felonies, under Indiana Code § 35-44.1-1-2(a) [erroneously cited by the

State as § 35-44.1-1-2.1(a)(4)]. 1

3. No other individual was criminal charged for conduct that was revealed throughout the

State’s investigation.

4. On October 23, 2018, Tanoos filed a Motion to Dismiss Counts II and III due to lack of

jurisdiction and all counts due to the facts stated do not constitute an offense; and due to

lack of specificity in the charging information.

5. On December 10, 2018, the State filed its Response to Tanoos’ Motion to Dismiss.

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On December 19, 2018, the Court granted the State’s Motion to Amend the Charging Information to correct
the citation of the offense.

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 6. On December 18, 2018, Tanoos filed his Reply to the State’s Response.

7. A hearing on the Motion to Dismiss was held on December 19, 2018.

8. The Judge asked for each party to submit Findings of Fact and Conclusions of Law by

January 23, 2019.

Factual History

9. Tanoos was the superintendent of Vigo County School Corporation (hereinafter “VCSC”)

for 20 years and served in that school system for 38 years.

10. Tanoos lived and worked in Vigo County, Indiana.

11. Doug Tischbein (“Tischbein”) is the corporate director of Energy Solutions Group

(“ESG”). ESG had offices in Marion County, Indiana. At all relevant times, Tischbein lived

in Zionsville, Indiana in Boone County.

12. ESG is a national energy service provider that develops sustainable energy solutions using a

model that provides its clients with, e.g., upgraded lighting and HVAC, and a reduced

carbon footprint, at no added cost to the client. Clients pay for construction using the

money they save on energy and operations as a result of the improved services. If the client’s

cost savings are less than ESG predicts, ESG pays the additional amount.

13. When VCSC received a bid for a Guaranteed Energy Savings Contract (“GESC”), Tanoos,

along with his committee, would make a recommendation to the School Board for the

selection of the certified provider of the GESC.

14. After such recommendation, the School Board would vote on approval for selection for the

provider and negations of the price and scope of the project would commence.

15. ESG has done several of these energy savings projects for VCSC and has done so since

2000. These are referred to as “Phases” but are actually individual projects. Each “phase” is

independent of each other and are not a continuous contract.

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 16. ESG has continually submitted bids for various “phases” on which Tanoos can only make a

recommendation; Tanoos cannot bind VCSC as that is the job of VCSC’s School Board.

17. Over the course of these several years, Tischbein would entertain Tanoos; however, there

was never any receipt of entertainment in exchange for a recommendation for or the

granting of a contract. In fact, Tischbein specifically denied that Tanoos solicited or

expected Tischbein to buy things for Tanoos’ support or recommendation with the VCSC

School Board.

Count I

18. On August 16, 2013 Tischbein emailed Tanoos inquiring whether Tanoos knew the

Superintendent of Clay County Schools. Apparently Tischbein desired to bid for business

with Clay County Schools. There is no reference to whether there was any active business

available with Clay County Schools or if this was just a possible future client of ESG.

19. Tanoos responded that he did know the Superintendent of Clay County Schools and then

Tanoos inquired about the availability of Colts tickets. Tischbein indicated “we have 4 tix

and they are yours, pls confirm.” (Pr. C. Aff. p. 13)

20. On August 24, 2013, there was a Colts game. That same day Tanoos was present at Mo’s

Steakhouse with six (6) other people. Tischbein paid $364.65 towards that dinner.

Tischbein did not attend that dinner. There is no direct correlation between the payment for

dinner and any possible recommendation to award a contract or continued business between

ESG and VCSC. The email wherein Tanoos asked about tickets had to do with whether he

knew a fellow superintendent. There is no evidence that any follow up was done or

requested in regards to the superintendent of a different school corporation.

21. Likewise, on August 24, 2013, there were no pending contracts between ESG and VCSC.

22. Likewise, on August 24 2013, there was no open bidding for upcoming projects for VCSC.

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 23. No additional contract to perform work for VCSC became available until 2014.

Count II

24. On or about July 6, 2014, Tanoos forwarded to Tischbein an email Tanoos received from

one of ESG’s competitors. The content of said email is not detailed within the probable

cause affidavit.

25. On July 7, 2014, Tischbein replied that the competitor is “persistent” but did not elaborate

as to what he meant. The email then requested lunch with Tanoos on Friday. Tanoos replied

that he would be in Nashville, Tennessee for a Principal’s Conference. In that same email

exchange Tischbein offered to come to Nashville and pay for dinner. As it turned out,

Tischbein could not make it to Nashville, but Tanoos asked whether Tischbein still wanted

to pay for the dinner.

26. On July 11, 2014, Tanoos and others attended a dinner in Nashville, Tennessee at the Palm

Restaurant. The other attendees included a School Board Member, principals, and the

Director of Elementary Education from the VCSC.

27. Tischbein paid for and expensed the dinner in Nashville, Tennessee, but was not an

attendee.

28. There is no evidence that any actions, described in rhetorical paragraphs 24 – 27, by Tanoos

and/or Tischbein occurred in Marion County, Indiana.

29. The action of Tanoos forwarding an email to Tischbein coupled with the dinner in Nashville

did not give Tischbein any direct or indirect advantage as to a recommendation to award a

contract and/or continued business with VCSC.

30. On July 11, 2014, there was an open project already under way by ESG at a VCSC location.

31. On July 11, 2014, there was no open bidding for upcoming projects for VCSC.

32. No additional contract to perform work for VCSC became available until 2016.

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Count III

33. In January 2014, Tanoos and Tischbein began email communication about a Chicago &

REO Speedwagon concert that was scheduled for August 10, 2014 at Klipsch Music Center,

in Noblesville, Indiana.

34. On July 14, 2014, Tischbein notified Tanoos that tickets to the concert had been purchased

for his use.

35. Tanoos, along with Tischbein and others, attended the Chicago & REO Speedwagon

concert on August 10, 2014 in Hamilton County, Indiana.

36. There is no evidence that any actions described in rhetorical paragraphs 33 – 35, by Tanoos

and/or Tischbein occurred in Marion County, Indiana.

37. There is no direct or indirect correlation with Tischbein hosting Tanoos at the concert as it

relates to any future recommendation to award a contract and/or continued business with

VCSC.

38. On August 10, 2014, there was an open project already under way by ESG at a VCSC

location (“Phase 8”). Phase 8 of the ESG project with VCSC was completed on September

16, 2014.

39. On August 10, 2014, there was no open bidding for upcoming projects for VCSC.

Charging Information

40. The criminal charges under this cause number are based on three events: Count I, Count II,

and Count III, respectively:

a. on August 24, 2013, Tanoos and six other attendees received a dinner totaling $364.65

($52/person) at Mo’s Steakhouse in Indianapolis, “immediately following [Mr.]

Tischbein’s asking [Dr. Tanoos] if he knew another county’s superintendent”;

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 b. on July 11, 2014, Tanoos and six other attendees, including four additional Vigo

County Schools representatives attending a Principal’s conference in Nashville,

Tennessee, received a dinner totaling $1,116.80 ($160/person) which “Tanoos

solicited immediately after making [Mr.] Tischbein privy to a competitor’s solicitation

of VCSC”; and

c. on August 14, 2014, Tanoos received tickets to an REO Speedwagon concert, a

limousine ride and complimentary liquor at the concert which he “solicited near the

end of [ESG’s] Phase 8 contract” with the Schools. Tischbein expensed a total of

$138.08 for five people ($28/person), including another Vigo County Schools

representative, related to the concert.

41. The State’s Information charges Tanoos with three counts of bribery under Indiana Code

section § 35-44.1-1-2(a)(2), which makes it a felony for a public servant to “solicit[], accept[],

or agree[] to accept … any property, except property the person is authorized by law to

accept, with intent to control the performance of an act related to the person’s employment

or function as a public servant,” based on the three gratuities listed above.

42. The State has alleged same three different actus reas for each count.

43. As to Count II: the probable cause affidavit does not link any criminal activity to Marion

County. The dinner referenced in Count II occurred in Nashville, Tennessee. The probable

cause affidavit does not indicate that either Tanoos or Tischbein were within Marion

County, Indiana jurisdiction when planning, scheduling, discussing, or receiving the dinner.

44. As to Count III: The probable cause affidavit does not link any criminal activity to Marion

County. The concert referenced in Count III occurred in Hamilton County, Indiana. The

probable cause affidavit does not indicate that either Tanoos or Tischbein were within

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 Marion County, Indiana jurisdiction when planning, scheduling, discussing, or receiving the

concert tickets and attending the concert.

45. The State’s charging information claims that Tanoos’ actions of “accept, agree to accept, or

solicited” dinner (Count II) and concert tickets (Count III) in exchange for a general

recommendation of business with Vigo County School Corporation constitutes the crime of

bribery in Marion County, Indiana.

46. Tanoos’ dinner (Count II) occurred in Nashville, Tennessee and the alleged

“recommendation or continued business” was to occur in Vigo County, Indiana.

47. As to Count III, the concert Tanoos attended was in Hamilton County, Indiana and the

alleged “recommendation or continued business” was to occur in Vigo County, Indiana.

48. There are no specific facts stated that Tischbein was in Marion County at any time Tanoos

accepted and/or solicited and/or agreed to accept alleged bribes.

49. There are no facts stated linking Tanoos, or a quid, or a quo, or any criminal activity to

Marion County.

50. There is no explicit agreement made between Tanoos and ESG that Tanoos would

“recommend[ ] to award [a] contract and/or continue[d] business with ESG to Vigo County

School Board.”

51. Tischbein stated he believed “all the items, lunches, dinners, drinks, tickets that he paid for

and/or expensed to ESG regarding Tanoos as account management and/or client retention

and a routine part of business.” (Pr. C. Aff. p. 6).

52. Tischbein advised he had provided other types of “gifts” to other Board Members in the

past. (Pr. C. Aff. p. 4)

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 53. The probable cause affidavit indicates that Tischbein’s expense reports and financial

accounts show that “Tischbein expensed items of value to Danny Tanoos, his family, and his

VCSC administrators; to include meals, gifts, and entertainment.” (Pr. C. Aff. p. 5)

54. Tischbein also “denied that he felt threatened to provide the benefits or lose the business.”

(Pr. C. Aff. p. 6).

CONCLUSIONS OF LAW

Jurisdiction

1. Pursuant to Indiana Code § 35-32-2-1(a), “[c]riminal actions shall be tried in the county

where the offense was committed, except as otherwise provided by law.”

2. The exceptions permitted within I.C. § 35-32-2-1 are not applicable to the case at bar.

3. A criminal defendant is afforded the right to be tried in the county in which the alleged

crime was committed by Article 1, § 13 of the Indiana Constitution.

4. Venue does not have to be proven by direct evidence; “[i]t is sufficient if facts and

circumstances are shown by the evidence from which the jury may find where the crime was

committed. Penman v. State, 325 N.E.2d 478, 481 (Ind. Ct. App. 1975), citing Weaver v. State,

187 N.E.2d 485 (Ind. 1963).

5. When electronic messages are the basis of the alleged crime, the proper venue is the county

that “action is directed at.” Neff v. State, 315 N.E.2d 1026 (Ind. Ct. App. 2009).

6. Neff stands for the theory that more is required then the mere knowledge that an individual

has ties to a particular location when electronic communication is the basis for venue. See

Also Laughner v. State, 769 N.E.2d 1147 (Ind. Ct. App. 2002).

7. The State has failed to specify what the actus reas is in both Counts II and III that provides

Marion County with jurisdiction. This leaves Tanoos guessing as to what act he is do provide

a defense against.

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 8. As to Count II in this case, the alleged conduct (i.e., accepting a dinner) occurred in

Nashville, Tennessee.

9. As to Count III in this case, the alleged conduct (i.e., attending a concert) occurred in

Hamilton County, Indiana.

10. If the State claims jurisdiction is based on Tischbein’s emailing activity, it has failed to

provide any evidence the email activity occurred in, or was directed at, Marion County. The

only jurisdictional reference is that ESG has an office location in Marion County.

11. The alleged criminal conduct did not occur in Marion County, Indiana and therefore, Marion

County, Indiana is not the proper venue as it does not have jurisdiction over the subject

matter of Counts II and III.

Facts Stated Do Not Constitute an Offense

12. Pursuant to Indiana Code § 35-34-1-4(a)(5), “the court may, upon motion of the defendant,

dismiss the indictment or information upon . . . (5) The facts stated do not constitute an

offense.”

13. When determining whether the charging document fails to state facts constituting an

offense, the Court is required to take the facts alleged in the information as true. Gutenstein v.

State, 59 N.E.3d 984, 994 (Ind. Ct. App. 2016), citing Pavlovich v. State, 6 N.E.3d 969, 974

(ind. Ct. App. 2014), trans denied.

14. “It is only when an information is facially deficient in stating an alleged crime that dismissal

for failure to state an offense is warranted.” Pavlovich, 6 N.E.3d at 969; see also Isaacs v. State,

794 N.E.2d 1120, 1123 (Ind. Ct. App. 2003) (holding dismissal of the charge was warranted

because the information alleged that the defendant operated a vehicle with a schedule I or II

controlled substance in the body, but the alleged substances in the defendant’s body were

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 actually schedule IV or non-controlled substances, and it was not a crime to operate a

vehicle with such substances in the body.)

15. The Court is required to take the facts in the charging information and probable cause

affidavit as true for purposes of I.C. 35-34-1-4(a)(5).

16. “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), aff’d by (199) Ind., 715 N.E.2d 341, reh’g denied.

17. It has been long established that “contribution[s] to create goodwill or with the vague

expectation of help in the future” do not rise to a level to constitute bribery. U.S. v. Allen, 10

F.3d 405, 412 (7th Cir. 1993).

18. Indiana does not observe a “generalized bribery” theory and therefore, the State is required

to prove the existence of an explicit quid pro quo. Winn, supra, 722 N.E.2d at 347; Wurster,

supra, 708 N.E.2d at 594-595.

19. A rationale for not recognizing a “generalized bribe” theory is that doing so would violate

the defendant’s right to be informed of the nature and cause of the accusation against him

and his right to bring a double jeopardy defense, because it fails to notify the defendant as to

what act the defendant allegedly engaged in that the State deems unlawful. Wurster, 708

N.E.2d at 595.

20. The United States Supreme Court recently held 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 to inviting a guest to an event – counts as a quo.” McDonell v. U.S., 136 S.Ct. 2355,

2372 (2016) (citation omitted).

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21. 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 (emphasis added). The term “official act” must

therefore 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 (citations and quotations omitted).

22. The Wurster Court, in reversing the bribery count, reasoned it was not enough for the State

to allege that the defendant received money from a company with “the intent that such

money would control the performance of acts related to [the defendant’s] employment”; the

State was also required to allege that the defendant agreed to undertake a specific act in return

for the money he received. Supra, 708 N.E.2d. at 596 (emphasis added).

23. Without a specific description of the act the defendant was supposed to have promised in

exchange for the money, the defense would not be able to anticipate the State’s evidence or

marshal its own evidence. Id.

24. In this case, the State has once again resorted to a “generalized bribe” theory, omitting the

essential quid pro quo element.

25. The State has not purported to show that any of these solicitations, acceptances, or

agreements to accept food/beverages/tickets were ever made on a quid pro quo basis, i.e., in

exchange for Tanoos’ actual committal for ESG for any particular project with VCSC

26. Under the State’s theory, the “generalized bribery theory, it would be a crime of bribery for a

litigant who practices in front of this Court and has a relationship with this Court, to take the

Judge out for a cup of coffee or lunch; as how the State is theorizing in this case, the coffee

and/or lunch would be in exchange for a hope for a future favorable ruling in a litigant’s

case.

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 27. The State has ignored the fact that it must prove and plead the existence of a quid pro quo –

there is no explicit agreement to do something in return for a gift in this situation.

28. Tischbein’s attempts at maintaining goodwill for some “hope” of unidentified and

unspecified business does not come close to solidifying a quid pro quo.

Dismissal Due to the Lack of Stating the Offense with Sufficient Certainty

29. Pursuant to Indiana Code § 35-34-1-4(a)(4), “[t]he court may, upon motion of the defendant,

dismiss the indictment or information upon . . . (4) The indictment or information does not

state the offense with sufficient certainty.”

30. The only available avenue to challenge the lack of specificity is a motion to dismiss. I.C. 35-

35-2-1(a).

31. “The purpose of the charging instrument is to provide the defendant with notice of the

crime of which he is charged so that he is able to prepare a defense.” Ben-Yisrayl v. State, 738

N.E.2d 253, 271 (Ind. 2000), citing Wisehart v. State, 693 N.E.2d 23, 63 (Ind. 1998).

32. Indiana Code § 35-34-1-2(a)(4) requires that the information (or indictment) “allege the

commission of an offense by . . . setting forth the nature and elements of the offense

charged in plain and concise language without unnecessary repetition.”

33. The information (or indictment) must contain “a plain, concise, and definite written

statement of essential facts constituting the offense charged.” I.C. § 35-34-1-2(d).

34. “Consistency between the allegations charged and the proof adduced is required out of

deference for the accused’s constitutional right to be informed of the nature and cause of the

accusation in sufficient detail to enable her to prepare her defense, to protect her in the

event of double jeopardy, and to define the issues so that the court will be able to determine

what evidence is admissible and to pronounce judgment.” Hayden v. State, 19 N.E.3d 831,

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 840 (Ind. Ct. App. 2014), quoting Myers v. State, 510 N.E.2d 1360, 1367 (Ind. 1987), citing

Manna v. State, 440 N.E.2d 473, 475 (Ind. 1982).

35. The charging information states that Tanoos “did solicit, accept, or agree to accept any

property, that is: food [tickets for Count III] 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 Vigo County

School Board related to the employment or function of a public servant, that is

Superintendent of Vigo County School Corporation.”

36. The State has alleged three different actus reas for each count, this is not with sufficient detail

as to enable Tanoos to prepare his defense. In fact, it forces Tanoos to speculate as which

theory he must defend against in presenting a defense.

37. The charging information does not put Tanoos on notice as to what act he committed to

constitute a criminal offense.

CONCLUSION

1. Count II and III should be dismissed for lack of jurisdiction of the subject matter and for

lack of personal jurisdiction over Tanoos.

2. Neither of the proposed crimes in Count II or Count III occurred in Marion County,

Indiana and the State has not alleged that any specific steps were taken in, or made towards,

Marion County, Indiana to further the alleged crimes.

3. In addition, all three counts of bribery charged against Tanoos should be dismissed because

the facts stated do not constitute an offense as there was no quid pro quo. There was no quid

pro quo specifically plead; and no quid pro quo is supported by evidence presented in the

probable cause affidavit.

4. What the State is pleading against Tanoos is a generalized bribery theory.

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 5. Permitting a generalized bribery theory would impact Indiana individuals and businesses on

how goodwill would be expressed and interpreted.

6. Finally, all three counts should be dismissed because the lack of sufficient certainty and

specificity violates Tanoos’ constitutional right to prepare a defense.

7. It also violates Tanoos’ constitutional right to have knowledge and understanding of the

allegations against him.

8. The State alleged three different actus reas per each count. It would be unconstitutional to

force Tanoos, or any other individual, to prepare a defense for each actus reas for each count.

9. While some may question the closeness of Tanoos and Tischbein’s relationship, and even

consider it morally questionable, without any quid pro quo evidence (i.e., expressed solicitation

or acceptance in exchange for a recommendation or continued business) the criminal

charges against Tanoos cannot survive the challenge presented.

10. In conclusion, all charges against Tanoos should be dismissed pursuant to Indiana Code §

35-34-1-4(a)(5) and (a)(4) and, specifically Count II and Count III should also be dismissed

pursuant to 35-32-2-1(a) for lack of jurisdiction.

SO ORDERED: ____________________________________.

____________________________
Judicial Officer

Distribution:
Marion County Prosecutor’s Office
James H. Voyles/Jennifer M. Lukemeyer – Attorneys for Daniel Tanoos

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