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IN THE UNITED STATES DISTRICT COURT
UNITED STATES OF AMERICA
ALPHONSO MICHAEL ESPY,
Criminal No. 97-0335 (RMU)
UNITED STATES OPPOSITION AND INCORPORATED MEMORANDUM TO DEFENDANTS MOTION
TO DISMISS COUNT 39 OF THE INDICTMENT FOR FAILURE TO
STATE AN OFFENSE UNDER 18 U.S.C. § 1001
OFFICE OF INDEPENDENT COUNSEL
DONALD C. SMALTZ
In Re Alphonso Michael (Mike) Espy
103 Oronoco Street, Suite 200
Alexandria, Virginia 22314
Phone: (703) 706-0010
Fax: (703) 706-0076
TABLE OF CONTENTS
TABLE OF AUTHORITIES ii
I. INTRODUCTION 1
II. ARGUMENT 2
A. COUNT 39 ADEQUATELY NOTIFIES DEFENDANT
OF THE CHARGE AGAINST HIM AND DOES NOT
STATE AN UNCONSTITUTIONAL CLAIM 2
B. 18 U.S.C. § 1001 COVERED FALSE STATEMENTS TO OFFICIALS OF THE EXECUTIVE OFFICE OF THEPRESIDENT IN 1994 6
III. CONCLUSION 15
TABLE OF AUTHORITIES
Bronston v. United States, 409 U.S. 352 (1973) 6
Hamling v. United States, 418 U.S. 87 (1987) 3
* Hubbard v. United States, 514 U.S. 695, 115 S.Ct. 1754 (1995) 6, 8-12
United States v. Addonizio, 451 F.2d 49 (3d Cir. 1971) 4
United States v. Bell, 623 F.2d 1132 (5th Cir. 1980) 6
United States v. Bortnovsky, 820 F.2d 572 (2d Cir. 2987) 5
United States v. Bramblett, 348 U.S. 503 (1955), overruled in part by Hubbard v. United States, 514 U.S. 695 (1995) 7, 9, 10, 12
United States v. Butler, 822 F.2d 1191 (D.C. Cir. 1987) 4-5
United States v. Carll, 105 U.S. 611 (1882) 3
* United States v. Dean, 55 F.3d 640 (D.C. Cir. 1995) 7
United States v. Germaine, 99 U.S. 508 (1878) 13-14
United States v. Gilliland, 312 U.S. 86 (1984) 9
United States v. Manapat, 928 F.2d 1097 (11th Cir. 1991) 6
* United States v. North, 708 F. Supp. 364 (D.D.C. 1989) 8-10
United States v. Oakar, 924 F. Supp. 232 (D.D.C. Cir. 1996), affd in part, revd in part, 111 F.3d (D.C. Cir. 1997) 7, 10
United States v. Pollack, 534 F.2d 964 (D.C. Cir. 1976) 5
United States v. Rodgers, 466 U.S. 475 (1984) 9
United States v. Rostenkowski, 68 F.3d 489 (D.C. Cir. 1995) 7
United States v. Torres, 901 F.2d 205 (2d Cir. 1990) 5
United States v. Vesaas, 586 F.2d 101 (8th Cir. 1978) 4
United States v. Whitehorn, 710 F. Supp. 803 (D.D.C.), revd on other grounds sub nom. United States v. Rosenberg, 888 F.2d 1406 (D.C. Cir. 1989) 4
5 U.S.C. § 101 11, 13
5 U.S.C. § 7301 13
18 U.S.C. § 6 9, 13
18 U.S.C. § 1001 passim
18 U.S.C. § 1461 3
Exec. Order No. 12674, 54 Fed. Reg. 15,159 (1989) 13
Exec. Order No. 12731, 55 Fed. Reg. 42,547 (1990) 13
Exec. Order No. 12834, 58 Fed. Reg. 5911 (1993) 13
False Statements Accountability Act of 1996, Pub. L. No. 104-292, § 2,
110 Stat. 3459 (1996) 6, 12
* H.R. Rep. No. 104-680, 104th Cong., 2d Sess. (1996) 11-12
The Indictment charges defendant in Count 39 with lying to and concealing material facts from President Clintons Chief of Staff and White House Counsel. Defendant claims that this count, which adequately apprises him of the nature of the charge against him and contains all information to which he is entitled, is unconstitutionally vague and ambiguous. In reality, defendant seeks a Bill of Particulars as to Count 39 to which he is not entitled. Defendant further claims that his lies to the Executive Office of the President fall outside of the definition of department or agency of the United States applicable to 18 U.S.C. §1001. That claim too is without merit, as three D.C. Circuit cases provide a basis for concluding that the statute covers false statements to the entire executive branch, including the Executive Office of the President. Therefore, this Court should deny the defendants motion.
A. COUNT 39 ADEQUATELY NOTIFIES DEFENDANT OF THE CHARGE AGAINST HIM AND DOES NOT STATE AN UNCONSTITUTIONAL CLAIM
Count 39 states the charge against defendant with the requisite specificity. The plain language of Count 39 charges defendant with concealing material facts from and lying to the Presidents then Chief of Staff and Counsel, on or about September 30, 1994, in response to their questions concerning the defendants unlawful receipt and solicitation of gifts, gratuities, and things of value from prohibited sources. The count charges defendant with stating, in substance, that there's nothing else out there, when he knew at the time of his statement that he had concealed and covered up certain enumerated gratuities that he received and/or solicited illegally. By reference to paragraphs 9a, 9b(1), 9b(3), 9b(5), 9c and 9d of the Indictment, Count 39 advises defendant that the undisclosed illegal gratuities were from Sun Diamond and Richard Douglas -- the luggage, cash to one of defendants girlfriends, limousines in New York, tickets to the U.S. Open Tennis Tournament, tickets to the Washington Bullets-New York Knicks basketball game, a Waterford Crystal Bowl, and illegal contributions to Henry Espys Congressional campaign; from Tyson Foods, Inc. and Jack Williams -- the four seats at a Presidential Inaugural Dinner, lodging, meals and entertainment at the Tyson Management Development Center, and airfare from Washington National Airport to Dallas for one of defendants girlfriends; from Oglethorpe Power Corp., the EOP Group and Smith Barney, Inc. -- one ticket to the 1994 Super Bowl in Atlanta, Georgia; and from the EOP Group -- employment for one of defendants girlfriends.
Finally, Count 39 informs defendant that the extent of his unlawful acceptance of illegal gratuities from prohibited sources was material information to the Presidents Chief of Staff and Counsel.
Defendants criticism of the draftsmanship of the Indictment does not give rise to a constitutional claim. Instead, it is the Supreme Courts standard, as reiterated in Hamling v. United States, 418 U.S. 87 (1987), that determines the sufficiency of an indictment. The Supreme Court has determined that an indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend. . . . Id. at 118. Count 39 satisfies the Hamling test and should not be dismissed.
Defendant seeks to elevate what really is a second request for a bill of particulars to a constitutional defect -- vagueness. But merely calling an indictment unconstitutionally vague does not make it so. Should this Court choose to give any credence to defendants attacks, it should examine defendant's complaints as another request for a bill of particulars. Defendants argument would fail that analysis as well.
The purpose of a bill of particulars is to inform the defendant of the nature of the charges brought against him, to avoid surprise during the trial and to protect him against a second prosecution for an inadequately described offense . . . when the indictment itself is too vague and indefinite for such purpose. United States v. Whitehorn, 710 F. Supp. 803, 821 (D.D.C.), revd on other grounds sub nom. United States v. Rosenberg, 888 F.2d 1406 (D.C. Cir. 1989) (quoting United States v. Addonizio, 451 F.2d 49, 63-64 (3d Cir. 1971); accord, United States v. Butler, 822 F.2d 1191, 1193 (D.C. Cir. 1987) (bill of particulars to ensure defendant apprised of charges); United States v. Pollack, 534 F.2d 964, 970 (D.C. Cir. 1976) (denial of bill of particulars when indictment describes particularized scheme in some detail not an abuse of discretion). However, if an indictment is sufficiently specific, or if the requested information is available in some other form, then a bill of particulars is not required. Butler, 822 F.2d at 1193; United States v. Bortnovsky, 820 F.2d 572, 574 (2d Cir. 1987) (same). Thus, bills of particulars only are required where the charges of the indictment are so general that they do not advise the defendant of the specific acts of which he is accused. United States v. Torres, 901 F.2d 205, 234 (2d Cir. 1990). In this case, defendant really seems to be asking this court to order the Government to provide what amounts to a transcript of the questions giving rise to and the text of the defendants lies to the Presidents Chief of Staff and Counsel; but the case law is clear that defendant is not entitled to a transcript. Count 39 provides sufficient specificity concerning the offense such that further elucidation and/or a bill of particulars are not warranted.
Defendant further turns constitutionality on its proverbial head by claiming that the absence in the Indictment of the actual question or questions to which the defendant gave materially false responses renders the count, somehow, constitutionally suspect. The Government, and apparently defendant as well, cannot find any case that stands for the proposition that a charge under section 1001 is defective if the question in response to which the false statement is made does not appear in the indictment.
B. 18 U.S.C. § 1001 COVERED FALSE STATEMENTS TO OFFICIALS OF THE EXECUTIVE OFFICE OF THE PRESIDENT IN 1994
The text of 18 U.S.C. § 1001, in effect in 1994 and prior to its amendment by Congress in 1996, Pub. L. No. 104-292, § 2, 110 Stat. 3459, covered false statements in matters within the jurisdiction of any department or agency of the United States. . . . 18 U.S.C. § 1001 (1948). Although the Supreme Court in Hubbard v. United States, 514 U.S. 695, 115 S.Ct. 1754, 1757 (1995), limited the scope of 18 U.S.C. § 1001 to exclude the third branch of government, i.e. the courts, from the purview of the statute prior to the 1996 amendment, three post-Hubbard decisions from within the D.C. Circuit have interpreted department to include the entire Executive Branch. See United States v. Dean, 55 F.3d 640, 658-59 (D.C. Cir. 1995) (In Hubbard, the Court narrowed the reach of § 1001 to matters within the executive branch, a coverage consistent with both the common usage of department and that terms definition in Title 18.), cert. denied, 116 S. Ct. 1288 (1996); United States v. Rostenkowski, 68 F.3d 489, 489 (D.C. Cir. 1995) (In Hubbard the Court overruled [United States v.] Bramblett [348 U.S. 503 (1955)] to hold that the term department refers only to a component of the Executive Branch); United States v. Oakar, 924 F. Supp. 232, 237 (D.D.C. 1996) (The focus of the Court of Appeals decisions, as well as the Supreme Court holding in Hubbard, was on the distinction between the Executive Branch -- to which § 1001 applies -- and the legislative and judicial branches -- to which it does not), affd in part, revd in part, 111 F.3d 146 (D.C. Cir. 1997).
As further stated in Hubbard, the far more common [locution of department] is the use of department to refer to a component of the Executive Branch. Hubbard at 1757. Of course, the Executive Office of the President is at the apex of the Executive Branch of our government. Thus, as discussed further herein, 18 U.S.C. § 1001 always has proscribed defendants false statements to officials of the Executive Office of the President.
In 1989, Judge Gesell confronted a similar issue in United States v. North, 708 F. Supp. 364 (D.D.C. 1989). That prosecution, arising out of the Iran-Contra Independent Counsel investigation, involved false statements to the Attorney General during the course of an inquiry he conducted at President Reagans direction. Id., at 366. Judge Gesells description of Col. Norths false statements is applicable to defendants false statements to President Clintons Chief of Staff and Counsel in the instant case -- [North] chose . . . to lie and affirmatively mislead in order to cover up matters material to the inquiry and his own participation in the events. Id., at 366. In finding that Col. Norths false statements during the Presidents inquiry fell within 18 U.S.C. § 1001, the court applied the following reasoning which is highly instructive in the instant matter:
The very purpose of 18 U.S.C. § 1001 is to protect the authorized functions of government from being perverted by those who make false, deceptive or fraudulent statements in government documents or to government officials. United States v. Gilliland, 312 U.S. 86 [parallel citations omitted] (1941). . . .The President had a legal basis to request the information and the authority to act in various legally-significant ways on the information he received from the inquiry. This is the essence of the jurisdictional requirement of the statutes. United States v. Rodgers, 466 U.S. 475, 481 [parallel citations omitted] (1984). [citation to United States v. Browning omitted.] When Congress enacted Sections 1001 and 1505, it was particularly concerned about false statements and obstruction of the day-to-day administration of laws and regulations, but surely it did not intend to exonerate the more culpable offenders of these precepts -- those who in exigent circumstances lied to obstruct a Presidential inquiry into conduct suspected to offend both statutes and policy.
North at 367. Judge Gesell also noted that [t]he President may of course use proper delegates to conduct his urgent investigations. . . . Id., at 367, n.1.
Defendant would have this Court look only to Hubbard so as to limit the definition of department or agency to the definition of department in 18 U.S.C. § 6. In Hubbard, the Supreme Court overruled United States v. Bramblett, 348 U.S. 503 (1955), where it had previously concluded that department in 18 U.S.C. § 1001 was meant to describe the executive, legislative and judicial branches of the Government. Id., at 509. The Court also limited 18 U.S.C. § 1001 to the executive branch, and restricted its applicability to the legislative and judicial branches. Hubbard at 1765. Therefore, no fair reading of Hubbard can alter the historical application of 18 U.S.C. § 1001 to the entire executive branch -- a continued proscription of all material false statements made to any component of the executive branch.
Judge Gesell, in North, had relied on the Supreme Courts language in Bramblett to conclude that a Presidential investigation does fall squarely within both statutes [18 U.S.C. §§ 1001 and 1505]. North at 367 (emphasis added). Moreover, the three recent opinions from the D.C. Circuit, as well as the holding of Hubbard itself, suggest that Bramblett still controls with respect to the executive branch. Nothing in Hubbard suggests that 18 U.S.C. § 1001 was not intended to cover the entire executive branch. Hubbard at 1761. Additionally, no court since Hubbard has limited the reach of 18 U.S.C. § 1001 when examining false statements made to a part of the executive branch other than the Departments enumerated in 5 U.S.C. § 101. Thus, it would be illogical and highly anomalous to hold that 18 U.S.C. § 1001 applies to the specified components of the Executive Branch set forth in 5 U.S.C. § 101, but not to the one office which sits astride these subordinate components -- the Executive Office of the President itself.
Defendant, not surprisingly, focuses on the term branches when he analyzes the 1996 amendment to 18 U.S.C. § 1001, now covering any matter within the jurisdiction of the executive, legislative or judicial branch of the United States. (Def.s Mem. of Points and Authorities ("Def.s Mem.") at 5). Defendant fails to note that the change in the language of the statute was not directed at the executive branch, rather it was to insure that false statements made to the judicial and legislative branches fall within the ambit of 18 U.S.C. § 1001. That was the specific reasoning behind the legislation as reported by the House Judiciary Committee:
In Hubbard, the Court held that Section 1001 did not apply to the judicial branch and by implication, to the legislative branch of the Federal Government. The purpose of H.R. 3166 is to ensure that section 1001 applies to the judicial and legislative branches as well as the executive branch, thereby ensuring the integrity of legislative and judicial functions and proceedings. . . . [S]ection 2 [of the bill] establishes both judicial and legislative function exceptions, limiting the application of section 1001 so as to ensure that the judicial and legislative functions of the Federal judiciary and Congress are not undermined. . . . While the [Supreme] Court did not directly address the question of whether section 1001 still applies to Congress, in holding that section 1001 does not apply to the courts, Hubbard is widely interpreted as leaving section 1001 covering only the executive branch, leaving Congress outside its scope. (emphasis added)
H.R. Rep. No. 104-680, 104th Cong., 2d Sess. 2-3 (1996).
The 1996 amendment did not change existing law regarding matters within the jurisdiction of the executive branch. That proscription always was in place. The 1996 amendment placed into the statute the exact reading of the statute that had been in effect for 40 years between the Supreme Courts interpretation of department in Bramblett and the Hubbard decision -- any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States. False Statements Accountability Act of 1996, Pub. L. No. 104-292, § 2, 110 Stat. 3459 (1996).
Contrary to defendants suggestion, the Executive Office of the President was a department or agency of the United States when the defendant made his false statement in 1994. The second paragraph of 18 U.S.C. § 6 defines an agency to include any department . . . [or] administration . . . of the United States. Although the first paragraph of 18 U.S.C. § 6 limits the term department to the 14 departments enumerated in 5 U.S.C. § 101, the definition of agency is considerably more expansive and is intended to encompass the remainder of the executive branch. In that regard, 5 U.S.C. § 7301 defines the term agency to include (A) the Executive Office of the President; [and] (B) an Executive department.
Defendants analysis of 5 U.S.C. § 101, listing 14 specific executive branch departments, therefore, is incomplete. This is so because the various executive departments as well as the Executive Office of the President merely represent the subdivision of the power of the Executive . . . for the more convenient exercise of that power. . . .Congress recognized this [division of the executive government] in the act creating these subdivisions of the executive branch. United States v. Germaine, 99 U.S. 508, 510-511 (1878). Thus, to the extent that 18 U.S.C. § 1001 covers false statements made to subordinates of the President classified under executive departments, the statute necessarily also covers all of the agencies of the executive branch and agents of the President to whom he delegates his authority. Defendants lies to these agents, the Presidents own Chief of Staff and Counsel, are as if he lied directly to the President. The President is, after all, the Chief Executive in the Executive Branch. Any other reading of the statute to remove from coverage lies to the Presidents closest aides would be incongruous and contrary to the plain language of the statute.
Count 39 provided defendant with the specificity necessary to detail the charges against him. Moreover, the false statements statute always has applied to lies to the Executive Office of the President as part of the executive branch. In fact, the Supreme Court decision that limited 18 U.S.C. § 1001 did not do so for false statements to the Executive Branch. Accordingly, this Court should deny defendants motion.
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. Greenberg
Jacob S. Frenkel
103 Oronoco Street, Suite 200
Alexandria, Virginia 22314
Tel: (703) 706-0010
Fax: (703) 706-0076
 In fact, defendant has moved for a Bill of Particulars as to all counts in the Indictment, including Count 39. The United States is opposing that motion concurrently herewith.
 Hamling does not involve, as suggested by the defendant, the proposition that deficient charging language gives rise to constitutional considerations. Instead, Hamling involved, inter alia, a challenge to the federal obscenity statute, 18 U.S.C. § 1461, as unconstitutionally vague. The Court, citing United States v. Carll (citation omitted), reaffirmed that [i]t is generally sufficient that an indictment set forth the offense in the words of the statute itself, as long as those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished. Hamling at 118.
 Defendants suggestion that Count 39 is unconstitutional is insupportable. He claims that the Eighth Circuit in United States v. Vesaas, 586 F.2d 101 (8th Cir. 1978), affirmed a dismissal of an ambiguous § 1001 count. Instead, in reversing that conviction, the Eighth Circuit found that the indictment was self-contradictory and alleged a false statement which was the defendants denial of a legal impossibility -- a person can never own property in joint tenancy with a deceased person. Id., at 103-104. In Vesaas, unlike here, the defendants response may have been literally and factually correct.
 United States v. Manapat, 928 F.2d 1097 (11th Cir. 1991), cited by defendant, notes that even when a question is arguably ambiguous, the defendants understanding of the question is a matter for the jury to decide. Id., at 1099, citing United States v. Bell, 623 F.2d 1132, 1136 (5th Cir. 1980). The 11th Circuits concern in Manapat involved the ambiguity of single statements concerning traffic and other convictions standing alone and buried in the Medical History section of an application for a medical certificate. Manapat at 1098, 1101. The completed quotation from Manapat, cited by defendant, simply admonishes the government not to remove questions from the context in which their answers were given in an attempt to prove their clarity. Id., at 1101. In Bronston v. United States, 409 U.S. 352 (1973), the Supreme Court, in reversing a perjury conviction, asserted that a questioners acuity rather than a federal perjury prosecution was the appropriate cure where a defendants answer was literally true but unresponsive. Id., at 362. Ultimately, defendants cited cases simply are not relevant in this matter.
 Dean involved false statements in testimony before the United States Senate Committee on Banking, Housing and Urban Affairs regarding her nomination for Assistant Secretary for Community Planning and Development. Dean at 658. Rostenkowski involved false statements by a member of the legislative branch to the Disbursing Office of the United States House of Representatives and the Federal Election Commission. Rostenkowski at 489. Oakar involved false statements by a member of the legislative branch on a financial disclosure form filed with the Clerk of the United States House of Representatives. Oakar 111 F.3d at 147. In Oakar, the D.C. Circuit commented that [a]lthough Hubbard only directly addressed the applicability of § 1001 to statements made in judicial proceedings, the Court signaled that its rationale would apply equally to statements to the Legislative Branch. Id., at 153.
 We hold that a federal court is neither a department nor an agency within the meaning of § 1001. Hubbard at 1765. (Emphasis added)
 In Hubbard, the defendant made three false statements of fact in unsworn papers filed in a bankruptcy court proceeding. Hubbard at 1756. In determining the extent of the reach of 18 U.S.C. § 1001, the Supreme Court, as a result of a split among the circuits on whether a judicial function exception existed to § 1001, focused its reasoning on the application of the false statements statutes to the courts -- that there is no need for any judicial function exception because the reach of the statute simply does not extend to courts. Id., at 1758. The Court further concluded that its review of the statutory history of 18 U.S.C. § 1001 did not supply a context sufficiently clear to warrant departure from the presumptive definition in 18 U.S.C. § 6, which would not include the courts. Id., at 1759. However, [t]he 1934 Act, which created the statute we now know as § 1001 . . . can be read to impose new words of limitation--whose ordinary meaning connotes the Executive Branch. . . . Id., at 1760. In Oakar, the D.C. Circuit further noted that Hubbard excepted the executive branch from its ruling -- In concluding that overruling Bramblett would not upset substantial reliance interests of Congress or of prosecutors on the availability of § 1001, three Justices noted the availability of other statutes for punishment of falsifications to the courts and the legislature. Oakar 111 F.3d at 153, citing Hubbard at 713-715 and n.14 (per Stevens, J. concurring).
 None of our opinions refers to any indication that Congress even considered whether the 1934 Act might apply outside the Executive Branch. . . . Hubbard at 1761.
 The defendant relegates the definition of agency to a footnote without supporting authority. (Def.s Mem. at 6, n.1).
 See Exec. Order No. 12834 at § (3)(f), 58 Fed. Reg. 5911 (1993) (Executive Agency and agency . . . includes the Executive Office of the President.); Exec. Order No. 12674 at § 202, 54 Fed. Reg. 15,159 (1989) (the agencies within the Executive Office of the President (EOP) currently exercise functions that are not distinct and separate from each other within the meaning and for the purpose of [18 U.S.C. §]207(e). . . .); Exec. Order No. 12731 at § 202, 55 Fed. Reg. 42,547 (1990) (same).