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Criminal No. 97-0166 (RCL)











                The United States, by and through the Office of Independent Counsel, respectfully requests that defendant’s motion to dismiss, or in the alternative, for an evidentiary hearing, be denied and that the United States' motion in limine filed October 24, 1997, be granted.  Defendant's baseless claims of government misconduct and his repetitious attempts to distract the focus of this proceeding from his own criminal actions should not be contenanced by this Court.

                Contrary to defendant's unsupported allegations, the Office of Independent Counsel ("OIC") did not engage in selective prosecution.  The defendant was not singled out for prosecution from a group of similarly situated individuals; nor did the government possess an improper motive in bringing this prosecution.  Defendant has failed to present any substantiation for his empty, inflammatory accusations.  Such claims of selective prosecution, completely devoid of support, do not satisfy a defendant's burden to justify discovery, much less the evidentiary hearing or dismissal defendant seeks.  This Court should dismiss defendant's motion as unsubstantiated and frivolous.


                Finally, defendant argues both that (1) the OIC's conduct and "motive" in bringing this prosecution concern issues of law to be resolved by this Court and (2) he should be able to argue this issue before the jury.  Defendant's contradictory positions cannot be sustained.  As recognized in defendant's own motion, the propriety of the OIC's conduct and any questions regarding the OIC's "motive" for investigating and prosecuting defendant are issues of law.  Evidence related to these issues is irrelevant to the ultimate issue to be submitted to the jury -- the defendant's innocence or guilt -- and will serve only to confuse and mislead the trier-of-fact.  This Court should preclude defendant from raising his nullification claim before the jury.


INTRODUCTION  On September 9, 1994, the Special Division of the D.C. Circuit Court of Appeals appointed Donald C. Smaltz Independent Counsel ("IC") and granted him jurisdiction to investigate whether former Secretary of Agriculture Alphonso Michael ("Mike") Espy violated any federal law by accepting gifts from organizations and individuals with business pending before the USDA.  See Order Appointing Independent Counsel, filed September 9, 1994, attached as Exhibit A.  That order further granted the IC "jurisdiction and authority to investigate other allegations or evidence of violation of any federal criminal law . . . by any organization or individual developed during the Independent Counsel's investigation referred to above and connected with or arising out of that investigation."  Id.  Subsequently, in April of 1996, the Special Division augmented this order granting the IC:


the jurisdiction and authority to investigate and prosecute any violation of any federal law . . . related to any application, appeal, or request for subsidy made to or considered by the United States Department of Agriculture, for which Secretary of Agriculture Alphonso Michael (Mike) Espy and/or his Chief of Staff Ronald Blackley intervened in the application, approval, or review process.



See Exhibit B hereto.

                Pursuant to this mandate, the OIC instigated a thorough review of the activities of Mike Espy, defendant Blackley, and others.  This investigation led the OIC to evidence that defendant Blackley had on three occasions lied about his receipt of money from persons obtaining subsidies from the Department.  Having heard this evidence, the Grand Jury returned the indictment at issue charging defendant with violating 18 U.S.C. 1001 on three occasions.

                In the past 30 days, defendant has devoted considerable energy to alleging impropriety on the part of the government.  This Court has now heard repeated claims of government misconduct and allegations of discovery violations in numerous motions -- as if the passionate repetition of such claims will prove them true.

                As the theme of the defense became clear, the United States filed a motion in limine with this Court requesting that it preclude defendant from raising before the jury, in argument or in evidence, questions about the OIC's conduct or attacks on the OIC's  "motive" in bringing the present prosecution.  See United States' Mot. in Limine and Incorp. Mem., filed October 24, 1997.  Such evidence would of course be irrelevant to the question of whether defendant knowingly made the three false statements for which he has been charged.  The United States pointed out in its motion that such issues are irrelevant to the actual innocence or guilt of a defendant, but instead are at best a claim of selective prosecution and a question of law to be decided by the court.


                Apparently spurred by the United States' motion in limine, defendant has now brought his most direct and grandiose accusation against the government to date, alleging that the OIC engaged in selective prosecution by indicting him. Defendant's argument appears to be that he was singled out for prosecution by the OIC because he refused to provide information helpful to a prosecution of Mike Espy.  This claim fails to give rise to a claim of selective prosecution and is patently frivolous.[1]



                To succeed on a claim of selective prosecution, a defendant faces a "demanding" burden.  United States v. Armstrong, 116 S.Ct. 1480, 1486 (1996).  As aptly explained by the Supreme Court in Wayte v. United States, 470 U.S. 598, 105 S.Ct. 1524 (1985):


                In our criminal justice system, the Government retains broad discretion as to whom to prosecute. So long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.  This broad discretion rests largely on the recognition that the decision to prosecute is particularly ill-suited to judicial review.  Such factors as the strength of the case, the prosecution's general deterrence value, the Government's enforcement priorities, and the case's relationship to the Government's overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake.  Judicial supervision in this area, moreover, entails systemic costs of particular concern.  Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor's motives and decisionmaking to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government's enforcement policy.



Id., 470 U.S. at 607, 105 S.Ct. at 1530 (internal quotations and citations omitted).

                This presumption that the prosecutor has acted properly may be overcome in a selective prosecution claim only upon a showing by the defendant that (1) the prosecutor's actions in bringing a case have a discriminatory effect and (2) that those actions were motivated by a discriminatory purpose.  Wayte v. United States, 470 U.S. at 608, 105 S.Ct. at 1531.   To prove discriminatory effect, a defendant must show that similarly situated individuals were not prosecuted.  Id.  To prove discriminatory purpose, a defendant must show that the government prosecuted him because of his exertion of a protected right.  Id.

                Though not specifically addressed in this circuit, almost every circuit court addressing the issue has held that a defendant must establish a prima facie case to receive an evidentiary hearing on a selective prosecution claim.[2]

                Here, defendant has utterly failed to make the requisite showing for dismissal or for an evidentiary hearing.  He has failed to present any evidence that similarly situated individuals are not prosecuted or that the government has prosecuted him because of his exertion of a protected right.  Defendant's unsupported accusations and "beliefs" are woefully insufficient to carry his burden.

A.             Defendant Has Failed To Show A Discriminatory Effect.

                Defendant first argues that he is part of some vaguely defined group of persons who have omitted information on their financial disclosure forms and who, generally speaking, are not prosecuted, and that he has been singled out for prosecution by the OIC for improper reasons.  Def.'s Mem. Supp. of Mot. to Dismiss (“Def.'s Mem.”) at 4-7.  Defendant's argument fails on multiple grounds.

                First, defendant's vague definition of the group of which he is purportedly a member is frivolous.  Relying on unidentified hearsay (“we have been told that there is only one case identified in which criminal charges were filed for a failure to report required information on a financial disclosure form,” Def.'s Motion at 5), defendant appears to suggest that government officials who lie on financial forms are entitled to some constitutionally protected stature.

                Even if this court chooses to give credence to defendant's definition of the group in which he claims membership, defendant is flatly wrong when he claims he has been singled out from that group.  Contrary to defendant's representations, a cursory search reveals numerous reported prosecutions of other government officials -- with no connection to Mike Espy or this investigation -- for filing false financial disclosure reports.[3]

                Defendant's analysis fails even more noticeably when one notes that his entire selective prosecution claim focuses on but one of the three counts on which he has been indicted - the false financial disclosure form - Count 1.  Of course, defendant faces two additional counts under 1001 which are completely unrelated to this form but which defendant chooses to ignore.  In reality, this is a multiple false statement case, not a false financial disclosure form case.  Defendant can hardly argue in good faith that he is being selectively prosecuted under 18 U.S.C. 1001 by ignoring two-thirds of the indictment filed against him.

                To show a true discrimination effect, defendant would have to show that from the group of public officials whom the government knows violated 18 U.S.C. 1001, only he has been prosecuted while the others were not.  See generally Wayte.  Obviously, defendant has not and cannot meet this burden as federal prosecutors routinely prosecute false statement offenses regardless of any connection to Mike Espy.  See, e.g.,  False Statements, 34 Am. Crim. L. Rev. 567, 567 (1997) ("Section 1001 of Title 18 of the United States Code is a frequently used and far-reaching statute which criminalizes false statements made directly or indirectly to the federal government.").  Moreover, since the OIC was established on September 9, 1994, the following individuals have been prosecuted by this office for violating 18 U.S.C. 1001: Richard Douglas, Jack Williams, Alvarez Ferrouillet, Jr., John Hemmingson, and Gary Black.  Thus, defendant's claim is contrary to the available  evidence and he must resort to bald assertions and conclusions all of which still miss the mark.

                In sum, defendant has presented no evidence that either he or other public officials who have violated 1001, and refused to provide evidence against Mike Espy, have received disparate treatment. Thus, the first part of defendant's selective prosecution argument fails.

B.              Defendant has Failed to Establish Discriminatory Purpose.

                Defendant next asserts that his prosecution was improperly motivated by his refusal to cooperate in the OIC's investigation and to provide incriminating evidence against Mike Espy.  Def.'s Mem. at 7-8.

                To show discriminatory purpose, defendant must show that the OIC brought this prosecution because of defendant's exertion of a privileged right.  See Wayte, 470 U.S. at 610, 105 S.Ct. at 1532; see also, United States v. Smith, 953 F.2d 1060, 1063 (7th Cir. 1992) ("Unless the prosecutor acts on forbidden grounds such as race or speech, the court must respect the executive's selection from the menu of crimes with which the defendant could have been charged.").  Defendant presents not a shred of evidence to show the exertion of a “privileged right,” but rather requests that this Court draw the inference of an improper motive based upon the circumstances surrounding his indictment.

                Because he has not a scintilla of evidence that he is being prosecuted on any truly suspect grounds (e.g., race, religion or some other arbitrary classification), defendant advances the creative but ultimately fallacious argument that his prosecution resulted from his refusal to assist the OIC in its efforts to prosecute Mike Espy.  However, he submits no real evidence to support this wild allegation.  The OIC did not decide to prosecute defendant because of his refusal to assist the OIC.  Rather, the OIC possessed evidence that defendant committed three crimes and sought an indictment so charging defendant.

                In his attempt to support his position that the government possessed an improper motive, defendant provides two letters and an affidavit.  The first letter, prepared by former Associate Independent Counsel Blanche L. Bruce, states that defendant was not a subject of the OIC's investigation two and a half years ago on March 14, 1995.  This was a true and correct statement in March of 1995, at the beginning of the OIC's investigation.  During the course of its investigation, the OIC uncovered evidence that defendant violated criminal statutes and thus, requested a Grand Jury indictment.  This hardly is improper.

                Defendant also cites a letter dated September 10, 1997, written by defendant's prior counsel Hiram Eastland.  This letter can be disregarded since it is not a sworn declaration and was likely written as a form of retaliation for government's counsel's proper efforts to disqualify Mr. Eastland based on a real conflict of interest (which order had been granted only weeks prior).

                Lastly, the affidavit of another of defendant's former counsel, Jeffrey Jacobovitz, is not only inaccurate, it is wholly irrelevant to an accusation of selective prosecution.  The Jacobovitz affidavit was filed in opposition to the Motion to Disqualify Counsel which was granted by this

Court of August 21, 1997.  The affidavit reveals nothing supporting a claim that the OIC prosecuted defendant because of his exertion of a privileged right.


                Defendant has simply failed to present any evidence of improper motive on the part of the OIC but rather relies on bare accusations.  The case law demands more; thus, defendant's motion should be dismissed.[4]



                Defendant has failed to carry his demanding burden of making out a prima facie case let alone proving that other individuals similarly situated have not been prosecuted and that the OIC instigated his prosecution because of his refusal to cooperate in the OIC's investigation.  Nor can he carry this burden inasmuch as (1) the government does indict public officials for lying to government departments and their investigators and (2) the OIC indicted defendant because of his illegal conduct.  Defendant's motion for dismissal or for an evidentiary hearing should be denied.


                Moreover, as this argument is one of law now being decided by this Court, defendant should be precluded from raising this and related issues before the jury.  The United States' motion in limine should be granted.

Date:        November 10, 1997                                  Respectfully submitted,


                                                                                                OFFICE OF INDEPENDENT COUNSEL

                                                                                                In Re Alphonso Michael (Mike) Espy




                                                                                                William F. Fahey

                                                                                                Counsellor to the Independent Counsel

                                                                                                Joseph P. Guichet

                                                                                                Associate Independent Counsel

                                                                                                103 Oronoco Street, Suite 200

                                                                                                P.O. Box 26356

                                                                                                Alexandria, Virginia  22314

                                                                                                Tel:  (703) 706-0010

                                                                                                Fax:  (703) 706-0050



[1]Moreover, defendant's motion is not timely, inasmuch as all substantive motions were due on or before May 19, 1997 and defendant has neither sought nor received permission to file this motion out of time.

[2]See United States v. Cooks, 52 F.3d 101, 105 (5th Cir. 1995) (African-American defendant not entitled to hearing where failed to establish prima facie case of selective prosecution because he could not show similarly situated white defendants not prosecuted); United States v. Bustamente, 805 F.2d 201, 202 (6th Cir. 1986) (defendant not entitled to evidentiary hearing where he could not make prima facie case against propriety of prosecutor's purpose); United States v. Mansoor, 77 F.3d 1031, 1034 (7th Cir. 1996) (defendant not entitle to evidentiary hearing where he could not establish prima facie case because he could not show similarly situated defendants not prosecuted); United States v. Welliver, 976 F.2d 1148, 1155 (8th Cir. 1992) (evidentiary hearing properly denied where defendant could not make prima facie showing that prosecution motivated by his exercise of free speech); United States v. Bourgeois, 964 F.2d 935, 938 (9th Cir. 1992) (dictum) (defendant must make prima facie case of selective prosecution to obtain evidentiary hearing); United States v. Jennings, 991 F.2d 725, 730 (11th Cir. 1993); but see United States v. Bassford, 812 F.2d 16, 19-20 (1st Cir. 1987) (to obtain an evidentiary hearing defendant must allege "some facts (a) tending to show that he has been selectively prosecuted and (b) raising a reasonable doubt about the propriety of the prosecution's purpose.").

[3]See United States v. Oakar, 111 F.3d 146, 149 (D.C. Cir. 1997) (Congresswoman prosecuted under 1001 for filing false financial disclosure form where such form failed to disclose $50,000 in personal liabilities); United States v. White, 887 F.2d 267 (D.C. Cir. 1989) (branch chief of Office of Transportation Audits of U.S. General Services Administration prosecuted under 1001 for failing to disclose financial and employment connection to corporation on financial disclosure form); United States v. Hansen, 772 F.2d 940 (D.C. Cir. 1985) (Congressman prosecuted on four counts under 1001 for failing to disclose various incomes for four consecutive years on financial disclosure forms); United States v. Claiborne, 727 F.2d 842, 843 n.1 (9th Cir. 1984) (noting that federal judge being prosecuted under 1001 for failure to disclose $75,000 loan on financial disclosure form); United States v. Biaggi, et al., 823 F.Supp. 1151, 1153 (S.D.N.Y. 1993) (former Congressman prosecuted under 1001 for failure to disclose interest in company on financial disclosure form); United States v. Mavroules, 819 F.Supp. 1109, 1111 & 1119 (D. Mass. 1993) (Congressman prosecuted under 1001 for failing to disclose his receipt of free use of automobiles on financial disclosure form).

[4]Similarly, defendant has failed to meet the “rigorous standard” for discovery in aid of his selective prosecution claim.  Armstrong, 116 S.Ct. at 1488.  This standard is required to prevent a diversion of “prosecutors' resources and [a disclosure of] the government's prosecutorial strategy.”  Id.