UNITED STATES OF AMERICA

TABLE OF AUTHORITIES

Page No.

CASES

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), aff’d in part, rev’d 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.), rev’d on other grounds sub nom. United States v. Rosenberg, 888 F.2d 1406 (D.C. Cir. 1989)      4

STATUTES

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

MISCELLANEOUS

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

I.

INTRODUCTION

                The Indictment charges defendant in Count 39 with lying to and concealing material facts from President Clinton’s 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.^[1]  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 defendant’s motion.

II.

ARGUMENT

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 President’s then Chief of Staff and Counsel, on or about September 30, 1994, in response to their questions concerning the defendant’s 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 defendant’s 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 Espy’s 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 defendant’s 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 defendant’s girlfriends. 

                Finally, Count 39 informs defendant that the extent of his unlawful acceptance of illegal gratuities from “prohibited sources” was material information to the President’s Chief of Staff and Counsel.

                Defendant’s criticism of the draftsmanship of the Indictment does not give rise to a constitutional claim.  Instead, it is the Supreme Court’s 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.^[2]  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.^[3]  Should this Court choose to give any credence to defendant’s attacks, it should examine defendant's complaints as another request for a bill of particulars.  Defendant’s 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.), rev’d 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 defendant’s lies to the President’s 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.^[4]

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 term’s 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”), aff’d in part, rev’d in part, 111 F.3d 146 (D.C. Cir. 1997).^[5]

                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 defendant’s 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 Reagan’s direction.  Id., at 366.  Judge Gesell’s description of Col. North’s false statements is applicable to defendant’s false statements to President Clinton’s 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. North’s false statements during the President’s 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.^[6]  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.^[7]

                Judge Gesell, in North, had relied on the Supreme Court’s 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.^[8]  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 Court’s 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 defendant’s 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.”^[9]  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.”^[10]

                Defendant’s 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 President’s 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 President’s closest aides would be incongruous and contrary to the plain language of the statute.

III.

CONCLUSION

                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 defendant’s 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