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 14, 20 AND 23 OF THE INDICTMENT

FOR FAILURE TO STATE AN OFFENSE

                                                                                                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 INDICTMENT 1

III.            DISCUSSION         3

                A.             THE FACTUAL QUESTION OF WHETHER DEFENDANT PERSONALLY RECEIVED THE “THINGS OF VALUE” ALLEGED CANNOT BE RESOLVED ON A PRETRIAL MOTION TO DISMISS               3

B.              THE INDICTMENT ADEQUATELY ALLEGES THAT DEFENDANT SOUGHT OR RECEIVED THINGS OF VALUE “PERSONALLY” 4

C.              18 U.S.C. § 201(c)(1)(B) CLEARLY PROHIBITS GRATUITIES RECEIVED EITHER DIRECTLY OR INDIRECTLY         6

IV.            CONCLUSION      9

TABLE OF AUTHORITIES

CASES

Chevron USA, Inc. v. Natural Resources Defense Council, Inc.,

  467 U.S. 837, 104 S.Ct. 2778 (1984)     8

Norfolk & Western American Train Dispatchers Association,

  499 U.S. 117, 111 S.Ct. 1156 (1991)     8

*Park ‘N Fly, Inc. V. Dollar Park and Fly, 105 S.Ct. 658 (1985)              7

United States v. Covington, 395 U.S. 57, 89 S.Ct. 1559 (1969)                 3

United States v. Girard, 601 F.2d 69 (2d Cir. 1979) 6

*United States v. Gorman, 807 F.2d 1299 (6th Cir. 1986),

   cert. denied, 108 S.Ct. 68 (1987)          6

United States v. Korn, 557 F.2d 1089 (5th Cir. 1977)               3

United States v. Marmolejo, 86 F.3d 404 (5th Cir. 1996)          6

*United States v. McDade, 827 F.Supp. 1153 (E.D. Pa. 1993),

    aff’d, 28 F.3d 283 (3d Cir. 1994)          3, 4

United States v. Nilsen, 967 F.2d 539 (11th Cir. 1992)             6

United States v. Shortt Accounting Corp., 785 F.2d 1448 (9th Cir. 1986)                 3

*United States v. Sun-Diamond Growers of California,

    941 F.Supp. 1262 (D.D.C. 1996)         4, 5, 6, 9

United States v. Turkette, 452 U.S. 576, 101 S.Ct. 2524 (1981)                7

United States v. Williams, 705 F.2d 603 (2d Cir.),

  cert. denied 100 S.Ct. 524 (1983)          6

STATUTES

F.R.Crim.P. Rule 12(b)              2, 3

18 U.S.C. § 201(c)(1)(B)          1, 6

18 U.S.C. §§ 201(c)(1)(B) and 2                1

18 U.S.C. §876         5

I
INTRODUCTION

                On August 27, 1997, the grand jury returned a 39 count indictment charging the defendant Alphonso Michael Espy with, among other things, solicitation and receipt of numerous “things of value” from various prohibited sources, in violation of Title 18, United States Code, Sections 201(c)(1)(B) and 2.  Defendant now moves for dismissal of Counts 14, 20 and 23 of the Indictment on the ground that these allegations do not satisfy the requirements of the gratuity statute, 18 U.S.C. § 201(c)(1)(B).  In particular, defendant argues, incorrectly, that the Indictment fails to allege in these counts that defendant personally received a “thing of value.”

                Defendant’s motion must be denied because the Indictment more than sufficiently alleges the elements of the offense and because the motion improperly seeks, prior to trial, resolution of evidentiary matters which go to defendant’s guilt or innocence of these charges.  Such evidentiary matters may not be entertained on a motion to dismiss, and must await trial. 

                II.

                THE INDICTMENT

                The Indictment charges, inter alia, that prior to and during his tenure as Secretary of Agriculture defendant Alphonso Michael Espy (“Espy”) directly and  indirectly demanded, sought, received, accepted and agreed to receive and accept numerous things of value from a variety of prohibited sources.  Specifically, Counts 14, 20 and 23 respectively charge that the following items were provided by the named entities and received by defendant: (i) On May 13, 1993 Sun-Diamond Growers of California, a California agricultural cooperative regulated by the United States Department of Agriculture, through its Senior Vice President of Corporate Affairs Richard Douglas, provided cash to Espy’s girlfriend in the amount of $3,200; (ii) On January 4, 1994 Tyson Foods, Inc., a $5 billion corporation which processes, produces and markets poultry and red meats, and conducts business with and is regulated by the Department of Agriculture, provided a check in the amount of $1,200 to defendant’s girlfriend; and (iii) On May 1, 1993 EOP Group, a Washington-based political and business consulting firm which represents clients, including Oglethorpe Power, who sought official action and were regulated by the Department of Agriculture, provided employment for defendant girlfriend.  (Indictment, Counts 13-25 at ¶ 20).

III.

                DISCUSSION

A.             THE FACTUAL QUESTION OF WHETHER DEFENDANT PERSONALLY RECEIVED THE “THINGS OF VALUE” ALLEGED CANNOT BE RESOLVED ON A PRETRIAL MOTION TO DISMISS                                                                                  

                Defendant moves for dismissal under Rule 12(b) of the Federal Rules of Criminal Procedure.  Rule 12(b) permits a defendant to raise a defense “which is capable of determination without the trial of the general issue.”  A defense is generally “capable of determination” on pretrial if it raises questions of law rather than fact.  United States v. Shortt Accountancy Corp., 785 F.2d 1448, 1452 (9th Cir. 1986); United States v. Korn, 557 F.2d 1089, 1090 (5th Cir. 1977).   In other words, pretrial determination is appropriate where “trial of the facts surrounding the commission of the alleged offense would be of no assistance in determining the validity of the defense.”  United States v. Covington, 395 U.S. 57, 60, 89 S.Ct. 1559, 1561 (1969).

                For this reason, defendant’s defense that he did not personally receive anything of value cannot be determined on this pretrial motion.  It is purely a question of fact whether the gratuities alleged amounted, in the end, to “anything of value personally” to him.  This same situation was addressed in United States v. McDade, 827 F.Supp. 1153 (E.D. Pa. 1993), aff’d, 28 F.3d 283 (3rd Cir. 1994), where the alleged gratuity was a scholarship to the defendant’s son:

                The question of whether [defendant] benefitted personally from the

scholarship payments to his son is one which should be resolved by

a jury, rather than by the court in a pretrial motion.  The government

has alleged that [defendant] received some sort of personal benefit

from the scholarship.  It will be up to the jury to determine whether

he actually did.

Id. at 1175.^[1]

                This Court itself addressed the issue in United States v. Sun-Diamond Growers of California, 941 F.Supp. 1262 (D.D.C. 1996), in which the donor was charged with giving Secretary Espy some of the same gratuities charged here.  There this Court held, with respect to the cash payment charged as a gratuity in Count 14 of the present Indictment, that the “alleged benefit, coupled with any other intangible benefit that Secretary Espy may have received, including [his girlfriend’s] companionship, warrants the submission of this matter for the jury to determine whether in fact Secretary Espy received a benefit.”  Id. at 1270.

                The question of whether Secretary Espy personally received a “thing of value” is again a fact question that can only be resolved by the jury, not by the Court on a pretrial motion.

B.              THE INDICTMENT ADEQUATELY ALLEGES THAT DEFENDANT SOUGHT OR RECEIVED THINGS OF VALUE “PERSONALLY”                                         

                Defendant’s basic argument is that Counts 14, 20 and 23 of the Indictment must be dismissed because the cash payments alleged went, in the first instance, to defendant’s girlfriend, and therefore, according to defendant’s logic, could not have benefitted “personally” from the payments made.  This erroneously assumes, however, that the direct transfer of cash is the only possible benefit to be derived from the gratuities at issue.

                In Sun-Diamond, 941 F.Supp. 1262, which concerned one of the same gratuities charged here (the monetary reimbursement for a trip to Greece alleged in Count 14), the Court addressed this issue in detail.  While the funds did not initially go to defendant, he nevertheless did personally receive a “thing of value,” because “a ‘thing of value’ can constitute both tangible benefits, such as money, and intangible benefits, such as companionship.”  Id. at 1269.

                The Court’s analysis of this issue in Sun-Diamond is incontestable.  The broad statutory language “anything of value” found in Section 201 cannot be limited to money or commercially available goods.  Similar language in various criminal statutes has been held to encompass tangible and intangible benefits.  United States v. Nilsen, 967 F.2d 539, 542 (11th Cir. 1992), (“thing of value” in 18 U.S.C. 876 includes intangible objectives.)  See also United States v. Marmolejo, 86 F.3d 404, 410-412 (5th Cir. 1996) (conjugal visits with prisoner is a “thing of value”); United States v. Girard, 601 F.2d 69, 71 (2d Cir.) (sale of DEA files is an intangible “thing of value”, and citing cases which hold thing of value includes amusement, sexual intercourse, promise to reinstate an employee, and agreement not to run in election).  Courts have focused “on the value which the defendant subjectively attaches to the items received.”  United States v. Gorman, 807 F.2d 1299, 1305 (2d Cir. 1986) (citing United States v. Williams, 705 F.2d 603, 623 (2d Cir.), cert. denied, 100 S.Ct. 524 (1983) (stock in fictional company constituted a gratuity)).

                Just as in Sun-Diamond, defendant was not the recipient of the cash, but he personally received “something of value.”  This is all that the statute requires.

C.              18 U.S.C. § 201(c)(1)(B) CLEARLY PROHIBITS GRATUITIES RECEIVED EITHER DIRECTLY OR INDIRECTLY                                                         

" \l 2       Defendant argues that paragraphs 14, 20 and 23 of the Indictment are deficient in that they charge gratuities given to defendant’s girlfriend, whereas the statute (according to defendant) demands that the gratuity be given “directly” to the defendant.  Defendant can make this argument only by presenting a cleverly truncated version of the statute.   Specifically, at page 2 of his Memorandum in Support, defendant quotes the statute as follows, but carefully omits the language in italics:

“Whoever - being a public official, former public official, or person

selected to be a public official, otherwise than as provided by law for

the proper discharge of official duty, directly or indirectly demands,

seeks, receives, accepts or agrees to receive or accept anything of

value personally for or because of any official act performed or to be performed by such official or person. . . .”

18 U.S.C. § 201(c)(1)(B).  In other words, defendant reads the statute as requiring that he receive the gratuity directly by omitting the statute’s express provision forbidding gratuities received indirectly.

                Avoiding the language of the statute, defendant pins his hopes on a single phrase in the legislative history of the statute, which reads: “‘Only payments directly to a public official or a witness, and not to other persons or entities in whose welfare the public official or witness may be interested, are forbidden by [the gratuity statute].’” (Memorandum in Support, p. 2).  Of course, the language of a statute is far more reliable evidence of legislative intent than the legislative history.  United States v. Turkette, 452 U.S. 576, 593, 101 S.Ct. 2524, 2534 (1981).  Here, the language of the statute is unequivocal -- it forbids both direct and indirect gratuities.  See Park ‘N Fly, Inc. v. Dollar Park and Fly, 469 U.S. 189, 194, 105 S.Ct. 658, 661 (1985) (“Statutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose.”); Norfolk & Western v. American Train Dispatchers’ Association, 499 U.S. 117, 128, 111 S.Ct. 1156, 1163 (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, 104 S.Ct. 2778, 2781 (1984)).

                The statute clearly prohibits both the direct and indirect receipt of “anything of value” by a public official.  This does not actually contradict the quoted legislative history, which appears to exclude gratuities whose benefits do not reach the defendant, even if the defendant is interested in the recipient’s welfare.  This also contrasts the gratuity provision from a bribery offense, since the latter can be satisfied by the transfer of a thing of value to another person even if the defendant derives no personal benefit at all.  Thus, if a gratuity went to defendant’s girlfriend and defendant himself received no benefit, direct or indirect, the statute would not be satisfied.  On the other hand, the statute does reach the situation presented here -- where the gratuity originally went to defendant’s girlfriend, but defendant himself enjoyed benefit from it.

                Here, there should be no question that defendant received a benefit from the gratuities given to his girlfriend, but in any event the proof, one way or the other, must await trial.  With respect to the $3,200 to the girlfriend, as charged in Count 14, the Court noted in Sun-Diamond, “the OIC contends that at trial it will establish, inter alia, that a portion of the $3,100 was used by Secretary Espy to pay his credit card bill which included the charge of [his girlfriend’s] airline ticket.”  941 F.Supp. at 1270.  Similar factual questions regarding the other gratuities must await determination at trial.

                Thus, although the things of value charged did not initially go to defendant, Espy in fact received the benefit of the things of value “personally.”  Under the provisions contained in the gratuity statute, nothing more is required.

                IV.

                CONCLUSION

                Defendant’s averment that Counts 14, 20 and 23 should be dismissed because the charged gratuities were not “personally” received by defendant is without merit.  The gratuities were of value to defendant personally, and under the statute the path the gratuity takes in reaching defendant does not matter so long as, in the end, the defendant derives a personal benefit.  Whether the defendant received a benefit is, in any event, a fact issue that must await trial.  For the foregoing reasons, defendant’s motion to dismiss the indictment for failure to state an offense should be denied.

Dated: 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

Adrienne R. Baron

Charles M. Kagay

103 Oronoco Street, Suite 200

Alexandria, Virginia 22314

Phone:     (703) 706-0010

Fax:                          (703) 706-0076