IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

 

UNITED STATES OF AMERICA

 

v.

 

 ALPHONSO MICHAEL ESPY,

Defendant

 

 Criminal No. 97-0335 (RMU)

 

 

UNITED STATES’ OPPOSITION AND INCORPORATED MEMORANDUM TO DEFENDANT’S 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

 

Page No.

 

TABLE OF AUTHORITIES    ii

I.              INTRODUCTION  1

 

II.            THE MEAT INSPECTION ACT’S GRATUITIES
 PROVISION APPLIES TO THE DEFENDANT    3

 

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 ACT’S 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

 

A.            DEFENDANT HAS NO STANDING TO CHALLENGE
21 U.S.C. § 622        14

 

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 STATUTE’S CONSTITUTIONALITY          17

 

D.            THE RULE OF LENITY DOES NOT APPLY
BECAUSE THERE IS NO AMBIGUITY IN THE STATUTE  19

 

IV.           CONCLUSION     19

 

 

TABLE OF AUTHORITIES

 

Page No.

 

CASES

 

 

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 Comm’n 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 Comm’n 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.), rev’d 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’ Ass’n, 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

 

 

STATUTES

 

___ 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

 

 

OTHER MATERIALS

 

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

I.

 

INTRODUCTION

 

                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.  Defendant’s 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 defendant’s motion to dismiss the Federal Meat Inspection Act counts.

II.

THE MEAT INSPECTION ACT’S 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 Department’s 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 Secretary’s 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.^[1]  By this argument, defendant wants to deflect this Court’s 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’ Ass’n, 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).).^[2]   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.”)^[3]  Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.  Consumer Prod. Safety Comm’n 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.^[4]   It is the defendant’s 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.^[5]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 Agriculture’s 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) (employee’s affirmative duty to acquaint himself with the illegal gratuities provision of the Act);^[6]  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.)^[7]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.”^[8]  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 Secretary’s power to delegate authority that renders him the “chief inspector.”^[9]   The Secretary’s 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.^[10]

C.             THE ACT’S LEGISLATIVE HISTORY COVERS THE SECRETARY

                Including the Secretary of Agriculture within section 622 comports with the Act’s 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 public’s 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 inspector’s 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.

                III.

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 defendant’s 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.  Defendant’s 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 Secretary’s 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 . . . it’s not reflective of current social industry changes.”  Memorandum of Interview of A. Michael Espy, June 1, 1994 at 7.

IV.

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 Court’s standards for preserving a statute’s constitutionality would require upholding its constitutionality under these facts.

A.            DEFENDANT HAS NO STANDING TO CHALLENGE

                21 U.S.C. § 622

" \l 2

                Defendant’s 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.^[11]  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 statute’s] 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.^[12]  Therefore, this Court should dismiss as moot defendant’s challenge to the constitutionality of 21 U.S.C. § 622 because he has no standing to challenge it.^[13]

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.”);^[14] 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 statute’s 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.^[15]

C.             IF THE REMOVAL FROM OFFICE PROVISION CONTROLS, THE COURT MAY SEVER THE “SUMMARY DISCHARGE” PROVISION AND UPHOLD THE STATUTE’S 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.^[16]  As applied to the Secretary, in order to preserve the constitutionality of the statute, this Court’s 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 Court’s 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.