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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
COUNTS 26-28 OF THE INDICTMENT FOR FAILURE
TO STATE AN OFFENSE UNDER THE MEAT INSPECTION ACT
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
THE MEAT INSPECTION ACTS GRATUITIES
A. THE DEFENDANT WAS AN OFFICER AND EMPLOYEE AUTHORIZED TO PERFORM DUTIES UNDER THE ACT 3
B. THE SECRETARY DELEGATES RESPONSIBILITIES THAT HE IS AUTHORIZED TO PERFORM 8
C. THE ACTS LEGISLATIVE HISTORY COVERS THE SECRETARY 10
III. THIS IS THE FIRST APPLICATION OF 21 U.S.C. § 622 TO A FORMER SECRETARY, AND DOING SO IS PROPER 12
IV. APPLICATION OF 21 U.S.C. § 622 TO
THE FORMER SECRETARY DOES NOT IMPLICATE CONSTITUTIONAL CONSIDERATIONS 13
DEFENDANT HAS NO STANDING TO CHALLENGE
B. THE COURT MUST CONSTRUE THE STATUTE TO PRESERVE ITS CONSTITUTIONALITY 15
C. IF THE REMOVAL FROM OFFICE PROVISION
CONTROLS, THE COURT MAY SEVER THE
SUMMARY DISCHARGE PROVISION AND
UPHOLD THE STATUTES CONSTITUTIONALITY 17
THE RULE OF LENITY DOES NOT APPLY
IV. CONCLUSION 19
TABLE OF AUTHORITIES
Alaska Airlines, Inc. v. Brock, 480 U.S. 678 (1987) 18
Ankenbrandt v. Richards, 504 U.S. 689 (1992) (Blackmun, J., concurring) 4
Ashwander v. Tennessee Valley Auth., 297 U.S. 288 (1936) (Brandeis, J., concurring) 15-16
Bifulco v. United States, 447 U.S. 381 (1980) (Burger, J., concurring) 5
Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam) 5
Champlin Rfg. Co. v. Corporation Commn of St. of Okl., 286 U.S. 210 (1932) 18
Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) 4
Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989) 4
Consumer Prod. Safety Commn v. GTE Sylvania, Inc., 447 U.S. 102 (1980) 4-5
Edward J. DeBartolo Corp. v. Florida Gulf Coast Buildings & Construction Trades Council, 485 U.S. 568 (1988) 15
Hoeppel v. United States, 85 F.2d 237 (D.C. Cir. 1936) 5
In Re Sealed Case, 838 F.2d 476 (D.C. Cir.), revd on other grounds sub nom. Morrison v. Olson, 487 U.S. 654 (1988) 5
Linda R. S. v. Richard D., 410 U.S. 614 (1973) 14
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) 14
Massachusetts v. Mellon, 262 U.S. 447 (1923) 14
Morrison v. Olson, 487 U.S. 654 (1988) 16
National Organization for Women v. Scheidler, 510 U.S. 249 (1994) 19
New York v. United States, 505 U.S. 144 (1992) 18
NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979) 16
Norfolk & Western v. American Train Dispatchers Assn, 499 U.S. 117 (1991) 4
Park N Fly, Inc. v. Dollar Park and Fly, 469 U.S. 189 (1985) 4
Rescue Army v. Municipal Court, 331 U.S. 549 (1947) 15-16
United States v. Jackson, 390 U.S. 570 (1968) 18-19
United States v. Mullens, 583 F.2d 134 (5th Cir. 1978) 11
United States v. Seuss, 474 F.2d 385 (1st Cir. 1973) 11
___ Rep. No. ___, 51st Cong., 1st Sess., Ch. 707, at 286; 26 Stat. 286 (1890). 4
18 U.S.C. § 201(c) 6, 12
18 U.S.C. § 201(c)(1)(B) 12
18 U.S.C. § 1001 12
18 U.S.C. § 1341 12
18 U.S.C. § 1343 12
18 U.S.C. § 1346 12
18 U.S.C. § 1512 12
18 U.S.C. § 1952 12
21 U.S.C. § 601, et seq. 8
21 U.S.C. § 601(a) 9
21 U.S.C. § 603(a) 6
21 U.S.C. § 608 6
21 U.S.C. § 609 6, 10
21 U.S.C. § 612 9
21 U.S.C. § 613 9
21 U.S.C. § 614 9
21 U.S.C. § 615 6
21 U.S.C. § 618 9
21 U.S.C. § 620(e) 6
21 U.S.C. § 621 6
21 U.S.C. § 622 passim
7 C.F.R. § 0.735-24(a) (1982) 7
7 C.F.R. § 0.735-24(a)(60) (1982) 7
7 C.F.R. § 2.1, et seq. (1993). 9
7 C.F.R. § 2.17(b)(18) (1993). 9
7 C.F.R. § 2.17(g)(2)(ii) (1993) 9
7 C.F.R. § 2.11 (1993) 10
7 C.F.R. § 2.3 (1993) 9-10
7 C.F.R. § 2.51(a)(18) (1993) 9
7 C.F.R. § 2.55(a)(2)(ii) (1993) 9
40 Cong. Rec. Pt. 8 [Senate] 7421 (May 25, 1906) 11
40 Cong. Rec. Pt. 9 [House] 8721 (June 19, 1906) 11
In re Espy, Application to the Court Pursuant to 28 U.S.C. § 592(c)(1) for the Appointment of an Independent Counsel, Petition No. 94-2 (D.C.Cir., filed Aug. 8, 1994) 6
Pub. L. No. 59-242, 34 Stat. 1256 (1907) 10
U.S. Const., art. II, sec. 2, cl. 2 5
Section 622 of the Federal Meat Inspection Act (the Act) provides, in pertinent part, that
any . . . officer or employee of the United States authorized to perform any of the duties prescribed by [the Act] . . . who shall receive or accept from any person, firm or corporation engaged in commerce any gift, money, or other thing of value, given with any purpose or intent whatsoever . . . shall be deemed guilty of a felony. . . . (emphasis added).
The Indictment charges the defendant with violating the illegal gratuities provision of the Act, 21 U.S.C. § 622, by unlawfully accepting gifts and things of value totaling approximately $4,221 from Tyson Foods, Inc., its lobbyist Jack Williams and Quaker Oats Co.
Defendant concedes that he is an officer and employee under the Act and has duties under the Act. But in an effort to avoid the plain language of the statute and exempt his unlawful conduct from its purview, defendant unsuccessfully tries to squeeze from margin notes to the 1907 publication of the Act an interpretation of the statute that would limit its application to on-site inspectors. Doing so would be contrary to the plain language of the statute.
Defendant advances two additional challenges to section 622 in support of his motion -- (1) the statute has never been used to prosecute the Secretary of Agriculture; and (2) the summary discharge provision renders it unconstitutional if the section were to apply to the Secretary. Defendants challenges, and each of them, to Counts 26 through 28 are without merit.
Section 622 represents Congress zero tolerance attitude towards regulated persons efforts to influence or corrupt Department of Agriculture officers and employees with regulatory authority or other duties under the Act. Both a literal reading of the statute and the legislative history indicate that section 622 covers any Secretary of Agriculture. Moreover, the mere fact that this case represents the first prosecution of a Secretary of Agriculture under this statute does not mean that it cannot be applied to him. Finally, this defendant has no standing to challenge the applicability of section 622 to the Secretary. Former Secretary Espy is not, and in the context of a conviction will not be, subject to summary dismissal from his position. Accordingly, and as discussed further herein, this Court should deny defendants motion to dismiss the Federal Meat Inspection Act counts.
THE MEAT INSPECTION ACTS GRATUITIES
PROVISION APPLIES TO THE DEFENDANT
Defendant hopes to persuade this Court that section 622 could not possibly apply to him because Congress only intended that the statute apply to on-site meat inspectors. Such a reading of section 622 is inconsistent with the plain language of the statute, which expressly includes officers and employees authorized to perform duties under the Act. The Act assigns specific authorized duties to the Secretary, who, consistent with his statutory authority to delegate responsibilities, also functions as the Departments chief meat inspector. Congress clearly intended and provided that 21 U.S.C. § 622 cover the Secretary.
A. THE DEFENDANT WAS AN OFFICER AND EMPLOYEE AUTHORIZED TO PERFORM DUTIES UNDER THE ACT
" \l 2
Defendant does not dispute that, as Secretary of Agriculture, he was an officer or employee of the United States. Instead, he argues that Congress juxtaposition of duties as provided by this chapter with the Secretarys duty to prescribe rules and regulations suggest that Congress intended for section 622 to apply only to on-site inspectors receiving illegal gratuities in connection with their inspection duties. By this argument, defendant wants to deflect this Courts attention from the plain language to Congressional intent. But the plain language of 21 U.S.C. § 622 includes the Secretary of Agriculture.
Statutory construction begins with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose. Park N Fly, Inc. v. Dollar Park and Fly, 469 U.S. 189, 194 (1985); Norfolk & Western v. American Train Dispatchers Assn, 499 U.S. 117, 128 (1991) (As always, we begin with the language of the statute and ask whether Congress has spoken on the subject before us. If the intent of Congress is clear, that is the end of the matter; for the court . . . must give effect to the unambiguously expressed intent of Congress.) (citing Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-843, (1984).). This Court only can ascertain that meaning by interpreting what Congress said, not what it may or may not have intended. See Bifulco v. United States, 447 U.S. 381, 401 (1980) (Burger, J., concurring) ([T]he question before the Court is substantially more limited: What do the words of the statute mean? Of course, we must try to discern the intent of Congress. But we perform that task by beginning with the ordinary meaning of the language of the statute.) Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive. Consumer Prod. Safety Commn v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980).
The plain language of officer or employee of the United States authorized to perform any of the duties prescribed by [the Act] includes the Secretary of Agriculture -- an officer and employee with duties under the Act. It is the defendants reading of the statute that overlooks clear statutory language outlining a broad range of duties incumbent on the Secretary. The Act imposes the following duties on the Secretary: shall cause to be made, by inspectors appointed for that purpose, an examination and inspection of all cattle . . . . (21 U.S.C. § 603(a)); shall cause to be made, by experts in sanitation or by other competent inspectors, such inspection of all slaughtering . . . . (21 U.S.C. § 608); shall cause an examination and inspection of all cattle . . . . (21 U.S.C. § 609); shall also cause to be made a careful inspection of the carcasses . . . . (21 U.S.C. § 615); shall submit [to the designated House and Senate Committees] a comprehensive and detailed written report . . . . (21 U.S.C. § 620(e)); and shall, from time to time, make such rules and regulations as are necessary for the efficient execution of the provisions of this subchapter. (21 U.S.C. § 621) (emphasis added).
Indeed, no less than the Attorney General herself represented that section 622 applies to the Secretary. In re Espy, Application to the Court Pursuant to 28 U.S.C. § 592(c)(1) for the Appointment of an Independent Counsel, Petition No. 94-2 (D.C.Cir., filed Aug. 8, 1994) at 3.In re Espy, Application to the Court Pursuant to 28 U.S.C. § 592(c)(1) for the Appointment of an Independent Counsel, Petition No. 94-2 (D.C.Cir., filed Aug. 8, 1994) at 3. Moreover, the Department of Agricultures own interpretation of section 622 applies it to officers and employees, not just inspectors. See 7 C.F.R. § 0.735-24(a)(60) (1982) (employees affirmative duty to acquaint himself with the illegal gratuities provision of the Act); Memorandum of Understanding by the Secretary of Agriculture and the Attorney General, Acceptance of Anything of Value by Officers or Employees of the Department of Agriculture Authorized to Perform Duties Prescribed by the Federal Meat Inspection Act (21 U.S.C. 601 et seq.) (1976) (any officer or employee of the Department of Agriculture authorized to perform any duties under the Act is subject to prosecution under 21 U.S.C. § 622.)MOU at 2, 5 (emphasis added). Accordingly, the plain language of 21 U.S.C. §622 includes the Secretary.
B. THE SECRETARY DELEGATES RESPONSIBILITIES THAT HE IS AUTHORIZED TO PERFORM
" \l 2
Delegation of authority to various types of inspectors does not somehow exempt the Secretary from the illegal gratuities provision of the Act. Section 622 refers to individuals who are authorized to perform duties; it does not require the actual performance of those duties. The authorized officials to whom the Secretary delegates authority includes the Assistant Secretaries and Administrators who perform their duties under the Act only by virtue of the authority granted to the Secretary and his express action in delegating that authority. The Act expressly contemplates delegations of authority, defining the Secretary, at section 601(a), as the Secretary of Agriculture of the United States or his delegate. The authority to perform otherwise delegated duties always resides with the Secretary, who may exercise his power at any time, and, if appropriate even revoke the delegated authority.
In fact, it is the Secretarys power to delegate authority that renders him the chief inspector. The Secretarys general delegation authority is he may from time to time make such provisions as he shall deem appropriate authorizing the performance by any other officer, or by any agency or employee, of the Department of Agriculture of any function of the Secretary. . . . 7 C.F.R. § 2.3. But the Secretary also is authorized to perform any responsibilities that he delegates, including those of the actual on-site meat inspector. 7 C.F.R. § 2.11 (No delegation of authority by the Secretary or a general officer contained in this part or elsewhere shall preclude the Secretary or general officer from exercising any of the authority so delegated.). Accordingly, the Secretary himself is authorized to perform all functions and duties that he delegates to inspectors, or that he cause[s] to be made, pursuant to the Act.
C. THE ACTS LEGISLATIVE HISTORY COVERS THE SECRETARY
Including the Secretary of Agriculture within section 622 comports with the Acts legislative history and promotes the intent of Congress. In passing the Act, Congress was greatly concerned about corruption, influence and the appearance of corruption which could undermine the quality of meat products and the publics confidence in the meat inspection system. The Act subjected USDA officials and employees to strict regulation. United States v. Seuss, 474 F.2d 385, 388 (1st Cir. 1973). Congress included the illegal gratuities provision in the original legislation. 40 Cong. Rec. Pt. 8 [Senate] 7421 (May 25, 1906); 40 Cong. Rec. Pt. 9 [House] 8721 (June 19, 1906). As the court stated in United States v. Mullens, 583 F.2d 134 (5th Cir. 1978), where the defendant was a federal meat inspector:
The federal meat inspector is a critical enforcement mechanism in the scheme of the Act and the inspectors integrity and exercise of independent judgment is vital to its success. Congress could reasonably conclude that the role of the meat inspector was of such significance as to justify a commensurately strict standard which prohibited receipt of anything of value for any reason . . . .
Id., at 139-40 (emphasis added). Although great harm could be done to the meat inspection system by plant inspectors and supervisors, even greater harm could be done to the system if the preeminent regulator, the Secretary, was corrupted, influenced or appeared to have been corrupted. Thus, it would simply make no sense to say that the plain language of the statute covers subordinate meat inspectors, but not the one person who has authority over all of them.
THIS IS THE FIRST APPLICATION OF 21 U.S.C. § 622 TO A FORMER
SECRETARY, AND DOING SO IS PROPER
Defendant may well be correct that section 622 of the Act has never been applied before to the Secretary. But the fact that it has not been applied before cannot mean that it does not cover defendants conduct. This also is the first case in which a former Secretary of Agriculture has been indicted for accepting illegal gratuities in violation of 18 U.S.C. § 201(c)(1)(B), as well as violations of 18 U.S.C. §§ 1001, 1341, 1343, 1346, 1512 and 1952; however, there is no suggestion that these statutes do not apply to the defendant because no prior Secretary of Agriculture has ever been charged with such criminal conduct. That this is the first case under 21 U.S.C. § 622, or 18 U.S.C. § 201(c) or 18 U.S.C. § 1001, against a Secretary of Agriculture is dispositive of but one fact -- this defendant, unlike previous Secretaries of Agriculture, engaged in criminal conduct under the Act, was indicted and is now being prosecuted for his misconduct.
Ironically, to accredit his proposition that section 622 has not previously been applied to the Secretary, defendant highlights for the Court that prior Secretaries of Agriculture received gifts, disclosed them on financial disclosure reports (unlike defendant who concealed them) but were not prosecuted. Defendants analysis overlooks the obvious -- that his predecessors, in all likelihood, did not solicit and receive gifts from prohibited sources or for and because of official acts performed and to be performed by them. Indictment at ¶ 8 and 20. In fact, clear evidence of this former Secretarys callous disregard for maintaining the professional and ethical standards set by his predecessors is his falsification of financial disclosure reports on Form SF-278. Indictment at ¶ 10 and 35-43, Counts 37 and 38. Indeed, when FBI agents asked the defendant about the applicability of the Act to him for accepting the tickets to the Dallas Cowboys playoff game, a car and driver from Tyson Foods and a flight to Russellville, Arkansas (for the John Tyson birthday party) for his girlfriend on a Tyson Foods jet, he did not take exception to the applicability of the Act. Instead, he stated that the Act is antiquated and needs to be changed . . . its not reflective of current social industry changes. Memorandum of Interview of A. Michael Espy, June 1, 1994 at 7.
APPLICATION OF 21 U.S.C. § 622 TO THE FORMER SECRETARY
DOES NOT IMPLICATE CONSTITUTIONAL CONSIDERATIONS
Defendant next claims that the provision of section 622 requiring that those convicted be summarily discharged from office renders the statute unconstitutional if applied to the Secretary. This argument too must fail because this defendant has no standing to challenge the summary discharge provision, and the Supreme Courts standards for preserving a statutes constitutionality would require upholding its constitutionality under these facts.
A. DEFENDANT HAS NO STANDING TO CHALLENGE
21 U.S.C. § 622
" \l 2
Defendants constitutional challenge to 21 U.S.C. § 622 relies on his assertion that the summary discharge provision cannot constitutionally apply to the Secretary. But this defendant has no standing to challenge that provision of the statute. See Linda R. S. v. Richard D., 410 U.S. 614, 619 (1973) (mother of illegitimate child held not to have standing to challenge a criminal statute applicable against the father of the child, not against her. The party who invokes [judicial] power must be able to show . . . that he has sustained or is immediately in danger of sustaining some direct injury as the result of [a statutes] enforcement. citing Massachusetts v. Mellon, 262 U.S. 447 (1923) (emphasis in original).) When the grand jury returned the Indictment, which did charge conduct while defendant was Secretary of Agriculture, defendant no longer held the position of Secretary. Therefore, this Court should dismiss as moot defendants challenge to the constitutionality of 21 U.S.C. § 622 because he has no standing to challenge it.
B. THE COURT MUST CONSTRUE THE STATUTE TO PRESERVE ITS CONSTITUTIONALITY
This Court need not reach the constitutional law issues raised by defendant. See Edward J. DeBartolo Corp. v. Florida Gulf Coast Buildings & Construction Trades Council, 485 U.S. 568, 575 (1988) (Every reasonable construction must be resorted to, in order to save a statute from unconstitutionality. (citation omitted); Rescue Army v. Municipal Court, 331 U.S. 549, 568 (1947) ([T]his Court has followed a policy of strict necessity in disposing of constitutional issues.); Id., at 570, n.34. Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 345-48 (1936) (Brandeis, J., concurring) (It must be evident to any one that the power to declare a legislative enactment void is one which the judge . . . will shrink from exercising in any case where he can conscientiously and with due regard to duty and official oath decline the responsibility. (citation omitted)). However, if this Court decides to address the constitutionality of 21 U.S.C. § 622 as it applies to the Secretary, defendant asserts the following proposition concerning statutory construction (Def.s Mem. of Points and Authorities (Def.s Mem.) at 7) with which the United States concurs:
The Supreme Court has repeatedly held that an Act of Congress ought not to be construed to violate the Constitution if any other possible construction remains available. NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 500 (1979); see also Morrison v. Olson, 487 U.S. 654, 682 (1988) (It is the duty of federal courts to construe a statute in order to save it from constitutional infirmities.). A construction of Section 622 that preserves the statutes constitutionality is not only possible and available, NLRB, 440 U.S. at 500, but in fact is required based on evidence of Congress intent and the text of the statute.
Congress inclusion of a summary discharge provision in the penalty provision of 21 U.S.C. § 622 is not an indication of an intent to exclude the Secretary. It merely reflects Congress resolve to adopt a zero tolerance policy toward the acceptance of illegal gratuities by anyone with responsibilities under the statute, including the Secretary.
C. IF THE REMOVAL FROM OFFICE PROVISION CONTROLS, THE COURT MAY SEVER THE SUMMARY DISCHARGE PROVISION AND UPHOLD THE STATUTES CONSTITUTIONALITY
Defendant does not contest, and in fact argues for a limited reading of the statute, that the summary discharge provision of 21 U.S.C. § 622 can be applied validly to inferior officers of the Department, particularly on-site inspectors. As applied to the Secretary, in order to preserve the constitutionality of the statute, this Courts remedy would be to strike the invalid aspect of the statutory sanctions -- the summary discharge provision -- not to invalidate the crime itself. Severance of the summary discharge provision would be wholly consistent with the Supreme Courts standard for severability:
The unconstitutionality of a part of an Act does not necessarily defeat * * * the validity of its remaining provisions. Unless it is evident that the legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as law.
United States v. Jackson, 390 U.S. 570, 585 (1968), citing Champlin Rfg. Co. v. Corporation Commn of St. of Okl., 286 U.S. 210, 234 (1932); New York v. United States, 505 U.S. 144, 186 (1992), citing Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987). In fact, it is only the summary discharge provision of 21 U.S.C. § 622 that forms the basis of defendants constitutional challenge.
The remedy the defendant seeks in holding an entire criminal statute unconstitutional as applied simply because one -- and only one -- of the statutory punishments may be unconstitutional is in the hypothetical and, in a real sense, mind-boggling. Even in capital cases where a court invalidates a death penalty provision or sentence, there is no suggestion that the underlying murder statute and conviction are invalid. It is inconceivable that any court would adopt such an approach. The Supreme Court agreed in Jackson, where it reversed a trial court decision that found constitutionally deficient the death penalty clause in the Federal Kidnaping Act:
[E]limination of [the clause authorizing capital punishment] in no way alters the substantive reach of the statute and leaves completely unchanged its basic operation. Under such circumstances, its is quite inconceivable that the Congress which decided to authorize [the punishment] would have chosen to discard the entire statute if informed that it could not include the death penalty clause now before us.
Jackson at 586. Thus, this Court should uphold counts 26 through 28 and the criminal penalty provision of the statute regardless of whether the summary discharge provision is constitutional, or not, as applied to defendant Espy.
D. THE RULE OF LENITY DOES NOT APPLY
BECAUSE THERE IS NO AMBIGUITY IN THE STATUTE
The rule of lenity only is invoked when there is an ambiguity in the statute; it is not to be used to create ambiguities or to find them where none exist. National Organization for Women v. Scheidler, 510 U.S. 249, 114 S. Ct. 798, 806 (1994). The Supreme Courts statement of the rule of lenity in National Organization for Women fairly addresses the situation in this matter. There being no ambiguity in the statute, the rule of lenity does not apply.
To adopt the defendants reading of the statute effectively means that the Secretary of Agriculture, but not his subordinates, could be on the take and avoid the provisions of 21 U.S.C. § 622. That notion offends the plain language
of the statute and its zero tolerance attitude toward USDA officers and employees who receive things of value from persons and entities regulated under the Federal Meat Inspection Act. It is Congress hortatory language that conveys the strong view that the acceptance of things of value by the Secretary of Agriculture, as well as other public officials and subordinates within the Department of Agriculture, is unlawful under section 622. Accordingly, this Court should deny defendants motion to dismiss the Meat Inspection Act counts.
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
Robert W. Ray
Jacob S. Frenkel
103 Oronoco Street, Suite 200
Alexandria, Virginia 22314
Tel: (703) 706-0010
Fax: (703) 706-0076
 As discussed infra, it is the Secretary who, as delegator of inspection duties, is the chief inspector. As early as 1890, Congress expressly tasked the Secretary with inspection duties, authorizing him to employ persons he deems necessary to enable him to discharge certain of his inspection functions -- to extend and continue the investigation of the adulteration of food, drugs and liquors.___ Rep. No. ___, 51st Cong., 1st Sess., Ch. 707, at 286; 26 Stat. 286 (1890).
 See Ankenbrandt v. Richards, 504 U.S. 689, 707 (1992) (Blackmun, J., concurring) (This Court has recognized that in the absence of a clearly expressed intention to the contrary, the language of the statute itself is ordinarily conclusive.); Consumer Prod. Safety Commn v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980) (same); Community for Creative Non-Violence v. Reid, 490 U.S. 730, 739 (1989) (The starting point for our interpretation of a statute is always its language.).
 Particularly with old statutes, this Court should recognize the difficulty inherent in determining Congress true intent or meaning. Therefore, the Court should focus primarily on the statutory language.
 The Secretary of Agriculture, nominated by the President and confirmed by the Senate, is the head of the Department of Agriculture, and as such, is an officer and employee of the United States. See U.S. Const., art. II, sec. 2, cl. 2 (appointment clause); Buckley v. Valeo, 424 U.S. 1, 126 (1976) (per curiam) (We think its [the appointment clauses] fair import is that any appointee exercising significant authority pursuant to the laws of the United States is an Officer of the United States . . . .); In Re Sealed Case, 838 F.2d 476, 481 (D.C. Cir.) (department heads are officers who must be appointed by the President), revd on other grounds sub nom. Morrison v. Olson, 487 U.S. 654 (1988); Hoeppel v. United States, 85 F.2d 237, 241 (D.C. Cir. 1936) (We think it is well settled that a person in the service of the United States, who has been appointed in any of the modes prescribed in article 2, § 2, cl. 2 of the Constitution, is an officer of the United States. . . .).
 In her application, the Attorney General represented, inter alia, that:
The facts established by the Departments investigation represent potential violations by Secretary Espy of 21 U.S.C. § 622 and 18 U.S.C. § 201(c).
Title 21, United States Code, Section 622 is a strict anti-gratuity statute which prohibits any Department of Agriculture employee or officer with responsibilities under the Meat Inspection Act from accepting any gift from any person engaged in commerce, without regard to the intent of the donor or the donee. Subsequent judicial interpretation of this law, and a Memorandum of Understanding reached between the Department of Justice and the Department of Agriculture in July 1976, have limited somewhat the broad sweep of the law. It is now clear that a gift does not violate the statute if it is motivated by a personal or family relationship, or if it is trivial in value, such as soft drinks, coffee, pencils and coffee cups. However, the acceptance of non-trivial gifts of entertainment, transportation, lodging and meals by a Department of Agriculture official who has responsibilities under the Meat Inspection Act, from an entity that is subject to regulation by the Department of Agriculture, falls within the purview of the statute. (emphasis added)
 The Department of Agricultures Employee Handbook, Employee Responsibilities and Conduct (July 1982), enumerates the statutes for which
[e]ach employee has a positive duty to acquaint himself . . . [including] (60) The prohibition against the acceptance by an employee of money or things of value given with intent to influence a decision in connection with the performance of duties under the Federal Meat Inspection Act, or when received from a person or firm engaged in commerce given for any purpose whatever (21 U.S.C. 622) . . . .
7 C.F.R. §§ 0.735-24(a) and (a)(60) (1982).
 Indeed, the Department applied the Memorandum of Understanding (MOU) to defendants conduct. On April 19, 1994, almost four months before the Attorney General requested the appointment of an Independent Counsel, the Department of Agriculture referred to the Department of Justice the conduct of Mike Espy, Secretary of Agriculture, because there may have been a violation of the Federal Meat Inspection Act (21 U.S.C. 601 et seq (sic)). The specific interpretation of section 622 in the MOU is:
[A]ny officer or employee of the Department of Agriculture authorized to perform any duties under the Act who receives or accepts from any person engaged in commerce any gift, money, or other thing of value given with any purpose or intent whatsoever, is subject to prosecution and upon conviction to a summary discharge from office. . . .Instances concerning the acceptance of anything of value by such officers and employees will be reported to the Department of Justice. . . .
 Pursuant to 7 C.F.R. § 2.17(b)(18) and (g)(2)(ii) (1993), the Secretary delegated his duties under subchapter I to the Assistant Secretary for Marketing and Inspection Services. The Assistant Secretary in turn delegated that authority, except for duties regarding the exportation of animals, to the Administrator, Food Safety Inspection Service. Id., at § 2.55(a)(2)(ii). In connection with the exportation of animals (§§ 612-614 and part of § 618 of the Act), the Assistant Secretary delegated his authority to the Administrator, Animal and Plant Health Inspection Service. Id., at § 2.51(a)(18).
 Title 7, Subtitle A, Part 2 of the Code of Federal Regulations, 7 C.F.R. § 2.1, et seq., governs delegations of authority by the Secretary.
 21 U.S.C. § 609, requiring the Secretary to cause an examination and inspection of all cattle . . . and the food products thereof . . . made during the nighttime . . ., does not mandate the Secretary to appoint an inspector for that purpose. This section clearly contemplates that the Secretary may perform this inspection function himself. Defendants assert a proposition, Def.s Mem. of Points and Authorities at n.2, that is without support in legal theory, that margin notes in the Act, as adopted in 1907, confer inspection duties solely on those titled inspectors. The margin note introducing 21 U.S.C. § 609 is Inspection at Night -- directly conferring on the Secretary inspection responsibilities. Pub. L. No. 59-242, 34 Stat. 1256, 1262 (1907).
 In Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), the Supreme Court reviewed the three elements necessary to establish constitutional minimum of standing. Defendant herein cannot get beyond the first element -- the plaintiff must have suffered an injury in fact -- an invasion of a legally protected interest which is (a) concrete and particularized [(citation omitted)] and (b) actual or imminent, not conjectural or hypothetical [(citation omitted)]. Id., at 560.
 In fact, upon conviction on Counts 26 through 28, the summary discharge provision will not apply because the President already removed defendant from his position -- announcing his resignation in October 1994, effective December 31, 1994.
 Arguably, had the defendant not resigned and been indicted as the sitting Secretary of Agriculture, he may then have had standing to challenge the statute. However, the Court need not reach or address that hypothetical scenario. Any possible separation of powers issues that could arise from the language of the statute do not now affect the defendant.
 The Supreme Court, in Rescue Army, stated that:
It has long been the Courts considered practice not to decide abstract, hypothetical or contingent questions * * * or to decide any constitutional question in advance of the necessity for its decision. (citation omitted) . . . It is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case. (citation omitted)
 Defendants contention is that section 622 only applies to officials who perform meat inspection functions, ignoring the other officer or employee of the United States authorized to perform any of the duties prescribed by this chapter clause in the statute. As discussed infra, the statute clearly covers the Secretary, who also has inspection duties.
 Defendant includes a string citation to First, Second and Fifth Circuit, and one Southern District of New York, decisions in which prosecutions under 21 U.S.C. § 622 involved on-site inspectors. Def.s Mem. at 5.
 The Supreme Court noted that Champlin, after stating the basic test . . . cited cases in which invalid statutory provisions had been severed despite the absence of any provision for severability. Jackson at 585, n.27 (citations omitted). See Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 686 (1987) (In the absence of a severability clause, however, Congress silence is just thatSsilenceSand does not raise a presumption against severability. (citations omitted))