TABLE OF CONTENTS

Page No.

TABLE OF AUTHORITIES    ii

I.              INTRODUCTION  1

II.            ARGUMENT           1

                A.            THE LEGAL STANDARD FOR TESTING ALLEGATIONS OF  AN INDICTMENT ARE MET           1

                B.             COUNTS 9 THROUGH 12 OF THE INDICTMENT SUFFICIENTLY ALLEGE MAILINGS TO FURTHER DEFENDANT'S SCHEME       2

III.           CONCLUSION     7

TABLE OF AUTHORITIES

                                                                                                                                                                                     Page No.

Deaver v. United States, 155 F.2d 740 (D.C. Cir. 1946).          6

Schmuck v. United States, 489 U.S. 706, 109 S.Ct. 1443 (1989)              6

United States v. Conlon, 628 F.2d 150 (D.C. Cir. 1980)           1, 2

United States v. Critzer, 951 F.2d 306 (11th Cir. 1992)            3, 4

United States v. Edmond, 924 F.2d 261 (D.C. Cir. 1991)         3, 4

United States v. Lemire, 720 F.2d 1327 (D.C. Cir. 1983)         2

United States v. Licciardi, 30 F.3d 1127 (9th Cir. 1994)          6

United States v. Pollack, 534 F.2d 964 (D.C. Cir. 1976)          2

*United States v. Sun-Diamond Growers of California, 941 F.Supp. 1262      (D.D.C. 1996)   2, 3, 5

United States v. Sun-Diamond Growers of California, 964 F.Supp. 486        (D.D.C. 1997)     2

United States v. Wilson, 98 F.3d 281 (7th Cir. 1996)                6

 I.

INTRODUCTION

                Defendant's assertion that the mail fraud counts contained in Counts 9-12 of the Indictment should be dismissed because these mailings are not in furtherance of the alleged scheme as a matter of law, is wholly without merit.  Whether defendant intended these letters to further his scheme or to "right an alleged wrong" as he suggests, (Mem. of Points and Auth. in Supp. of Def.'s Mot. to Dismiss Counts 9-12 of Ind. ("Def.'s Mem.") at 5), is a question for the trier of fact.  The indictment sufficiently alleges that defendant mailed these payments in order to conceal and disguise his activities and intent to solicit and receive illegal gratuities, and that such actions were taken to further the his fraudulent scheme.  Thus, defendant's motion should be denied.

II.

ARGUMENT

A.            THE LEGAL STANDARD FOR TESTING ALLEGATIONS OF AN INDICTMENT ARE MET

                An indictment is sufficient if it clearly informs the defendant of the precise offense for which he is accused so that he may prepare his defense.  United States v. Conlon, 628 F.2d 150, 155 (D.C. Cir. 1980) (citing Russell v. United States, 369 U.S. 749, 763-64, 82 S.Ct. 1038, 1046-47 (1962) and United States v. Debrow, 346 U.S. 374, 377-78, 74 S.Ct. 113, 115-16 (1953)).  The general rule is that the indictment must state the essential elements of the offense and be supplemented with enough detail to apprise the accused of the particular offense with which he is charged.  Id.

                The elements of a violation of the mail or wire fraud statute are (1) a scheme to defraud, and (2) use of a wire or the mails to further that scheme.  United States v. Lemire, 720 F.2d 1327, 1334-35 (D.C. Cir. 1983) (citing cases).  The government need not prove nor allege that the scheme was ultimately successful or that the intended victim actually suffered an injury.  United States v. Sun-Diamond Growers of California, 964 F.Supp. 486, 492 (D.D.C. 1997) (citing United States v. Pollack, 534 F.2d 964, 971 (D.C. Cir. 1976)).

B.             COUNTS 9 THROUGH 12 OF THE INDICTMENT SUFFICIENTLY ALLEGE MAILINGS TO FURTHER DEFENDANT'S SCHEME

                Defendant asserts that Counts 9-12 of the Indictment fail to properly allege mailings in furtherance of defendant's scheme because he does not believe that the mailings could further defendant's scheme.  (Def.'s Mem. at 2-5).  However, the time for the government to put forth its theory of proof is at trial, not in opposition to a pre-trial motion to dismiss for failure to allege an offense.  United States v. Sun-Diamond Growers of California, 941 F.Supp. 1262, 1275-76 (D.D.C. 1996).  In Sun-Diamond Growers, this Court faced from defendant Sun-Diamond the precise argument made by defendant here -- that a specific mailing (there a wire) could not further the execution of an alleged scheme to defraud and the substantive count based on that mailing should therefore be dismissed.  Id.  This Court held that where the indictment sufficiently identifies the elements of the charged offense, the defendant's motion to dismiss must be denied.  Id. at 1276.  For "[t]he sufficiency of the evidence is a matter to be left for trial."  Id. (citing United States v. Critzer, 951 F.2d 306, 307 (11th Cir. 1992)).  Only then need the government establish that the mailing advanced or was integral to the execution of the fraud.  Id.    Defendant has not and cannot cite to a single authority mandating a different result.

                This holding is supported by the fact that an indictment itself need not provide evidentiary detail explaining the government's theory of proof on how the mailing was in furtherance of the scheme to defraud.  See United States v. Edmond, 924 F.2d 261, 269 (D.C. Cir. 1991) (finding that indictment need not specifically state that theory of defendant's liability for murder was the Pinkerton doctrine).  "[T]he function of a federal indictment is to state concisely the essential facts constituting the offense, not how the government plans to go about proving them." Id.  Thus, in analyzing a motion to dismiss an indictment for failure to state an offense, a court should look only at the face of the indictment, not at the facts the government expects to prove.  Critzer, 951 F.2d at 307.

                The indictment alleges that defendant devised and intended to devise a scheme and artifice to defraud by: (i) engaging in a pattern of soliciting and accepting gratuities from persons and entities who were regulated by and/or had matters pending before his office; (ii) concealing his receipt of things of value by not reporting them on the required public Financial Disclosure Reports; (iii) making false pretenses for the purpose of justifying official travel to obtain the gratuities; (iv) concealing his activities concerning the receipt of gratuities by lying to federal investigators and providing them with a false and altered document; (v) mailing "reimbursements" of certain gratuities uncovered by the press to make his actions appear benign and disguise his intent in soliciting and accepting the gratuities; (vi) lying to the Office of the President about the extent of gratuities received; and (vii) misusing government assets and causing the expenditure of public funds for his personal benefit -- all in violation of the laws and regulations of the United States and in detriment to the interests of the public. (Indictment at ¶¶ 4-14).

                Counts 9-12 of the Indictment charge that for the purpose of executing this scheme, defendant caused to be mailed four payments to entities who had provided defendant with gratuities, stating and/or implying that said payments were "reimbursements" for specific gratuities he had received.  (Id. at ¶¶ 17-18).  According to the scheme charge (which is incorporated by reference into Counts 9-12), defendant made these payments after the media published questions and concerns regarding his receipt of gratuities from individuals with matters pending before the USDA and that he made such mailings in order to conceal and disguise his activities and intent to solicit and receive illegal gratuities.  (Id. at ¶13).

                As the indictment states the essential elements of defendant's crime -- a scheme to defraud and mailings for the purpose of executing this scheme -- and provides defendant with sufficient detail of the underlying facts so as to apprise him of the particular offense with which he is charged, the indictment is sufficient, and defendant's motion is properly dismissed.  Sun-Diamond Growers, 941 F.Supp. at 1275-76.

                Moreover, as the indictment makes clear, the mailings forming the basis for Counts 9-12 did indeed further defendant's scheme.  His scheme included, in part, continued concealment of his improper actions both through omission and affirmative acts and misstatements.  As alleged in the indictment, defendant mailed these "reimbursements" to further conceal his activities and intent regarding his solicitation and receipt of gratuities.  Such mailings, which affirmatively assisted defendant in carrying out his fraudulent scheme, could hardly be concluded as a matter of law to be insufficient basis for substantive mail fraud counts.  See Schmuck v. United States, 489 U.S. 706, 109 S.Ct. 1443 (1989) (holding that mailing of title-application forms to the State by auto retailers to whom defendant fraudulently sold used cars with rolled-back odometers was sufficiently in furtherance of defendant's scheme and could form basis for mail fraud counts against defendant).^[1]  Defendant's mailings are properly charged as substantive mail fraud counts. 

                United States v. Wilson, 98 F.3d 281 (7th Cir. 1996) and United States v. Licciardi, 30 F.3d 1127 (9th Cir. 1994), cited by defendant, are not apposite.  (Def.'s Mem. at 4).  These cases confirm that mailings which conceal are properly the subject of mail fraud counts as both defendants were convicted for mailings designed to prevent disclosure of the underlying fraudulent activity.  However, in the instant matter, once investigative efforts of the media and federal investigators disclosed the underlying activity itself, only defendant's fraudulent intent and the extent of his scheme remained unknown to the public. The mailings charged in Counts 9-12 served to prevent disclosure of this information.^[2]  Thus, they were made to further his scheme which included continued concealment.

III.

CONCLUSION

                Defendant requests that this Court consider only one of many possible interpretations of his actions in causing the mailings in Counts 9-12.  However, as a jury could well find that these mailings were in fact to further his scheme to defraud, defendant's motion to dismiss these counts is misguided.  The indictment alleges each of the essential elements of defendant's crimes and provides him with sufficient detail of the underlying facts to be fully informed of the crimes for

which he has been charged.  This is all that is required.  Defendant will have his day in court to rebut these allegations before a trier-of-fact; but he may not now properly argue such before this Court.

Date: November 20, 1997       

                                                                                                Respectfully submitted,

                                                                                                OFFICE OF INDEPENDENT COUNSEL

                                                                                                In Re Alphonso Michael (Mike) Espy

                                                                                                __________________________________

                                                                                                Donald C. Smaltz, Independent Counsel

                                                                                                William F. Fahey

                                                                                                Roscoe C. Howard

                                                                                                Theodore S. Greenburg

                                                                                                Joseph P. Guichet

                                                                                                103 Oronoco Street, Suite 200

                                                                                                P.O. Box 26356

                                                                                                Alexandria, Virginia  22314

                                                                                                Tel:  (703) 706-0010

                                                                                                Fax:  (703) 706-0076