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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 COUNT 35 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.            ARGUMENT         1

 

                A.            BACKGROUND   1

 

                B.            THE INDICTMENT SUFFICIENTLY ALLEGES A

                                VIOLATION OF 18 U.S.C. 1512 AND PROPERLY

                                INFORMS THE DEFENDANT OF THE CHARGES        2

 

                                1.             The “Knowing” Requirement of the Statute Is

                                                Met In Count 35   2

                                2.             Count 35 Adequately Apprises The Defendant of the

                                                Charges and Allows Him To Be Advised Of The

                                                Charges And Prepare His Defense    12

                                3.             The Indictment Need Not to Precisely Allege Facts

                                                That Misleading Conduct Was Directed Toward

                                                Another Person     21

                                4.             Defendant is Well Aware of the Identity of the Individuals Involved in Count 35      22

                                5.             Dismissal Is Not A Remedy 23

 

III.           CONCLUSION    23


TABLE OF AUTHORITIES

 

Page No.

 

CASES

 

Griffith v. United States, 230 F.2d 607 (6th Cir. 1956)          5

 

Hamling v. United States, 418 U.S. 87 (1974)       2, 20

 

Hughes v. United States, 338 F.2d 651 (1st Cir. 1964)          4

 

Kinoy v. District of Columbia, 400 F.2d 761 (D.C. Cir. 1968)              3, 4

 

Madsen v. United States, 165 F.2d 507 (10th Cir. 1947)       4

 

Martinez v. United States, 981 F.2d 867 (6th Cir. 1992)       10

 

Portnoy v. United States, 316 F.2d 486 (1st Cir.)  2

 

Russell v. United States, 369 U.S. 749 (1962)        2, 19, 22

 

Smith v. United States, 360 U.S. 1, 79 S.Ct. 991 (1959)        23

 

Young v. United States, 288 F.2d 398 (D.C.Cir. 1961)          22

 

United States v. Agone, 302 F.Supp. 1258 (S.D.N.Y. 1969)  22

 

United States v. Arteaga-Limones, 529 F.2d 1183 (5th Cir. 1976)        10

 

United States v. Bordallo, 857 F.2d 519 (1985), modified, 872

F.2d 334 (9th Cir. 1989)         3

 

United States v. Caldwell, 544 F. 2d 691 (4th Cir. 1976)       19

 

United States v. Conlon, 628 F.2d 50 (D.C. Cir. 1980)          18, 20

 

United States v.  Debrow, 346 U.S. 374 (1953)     20

 

United States v. Diecidue, 603 F.2d 535 (5th Cir. 1979)        6, 16, 17

 

United States v. Gipson, 46 F.3d 472 (5th Cir. 1995)            13

 

United States v. Gordon, 253 F.2d 177 (7th Cir. 1958)         5

 

United States v. Hess, 124 U.S. 483 (1888)           3

 

United States v. Johnson, 414 F.2d 22 (6th Cir. 1969)          10

 

United States v. King, 762 F.2d 232 (2d Cir. 1986)               3

 

United States v. McGhee, 488 F.2d 781 (5th Cir. 1974)        19

 

United States v. McLennan, 672 F.2d 239 (1st Cir. 1982)     2, 10

 

United States v. Morlan, 756 F.2d 1442 (9th Cir. 1985)        20

 

United States v. Morris, 18 F.3d 562 (8th Cir. 1994)            20

 

United States v. Nance, 533 F.2d 699 (D.C. Cir. 1976)         16, 17

 

United States v. Perkins, 748 F.2d 1519 (11th Cir. 1984)     21

 

*United States v. Poindexter, 725 F.Supp. 13 (D.D.C. 1989)                2, 14, 15

 

United States v. Purvis, 580 F.2d 853 (5th Cir. 1978)           4

 

United States v. Rizzo, 373 F.Supp. 204 (S.D.N.Y. 1973)     22

 

United States v. Rodolitz, 786 F.2d 77 (2d Cir. 1986)            3, 12

 

United States v. Spaeni, 60 F.3d 313 (7th Cir.) cert. denied,

116 S.Ct. 536 (1995)              13

 

United States v. Staggs, 881 F.2d 1527 (10th Cir. 1989)       20

 

United States v. Thomas, 444 F.2d 919 (D.C. Cir. 1971)      17

 

United States v. Turley, 891 F.2d 57 (3d Cir. 1989)               13

 

United States v. Wiley, 979 F.2d 365 (5th Cir. 1992)             3

 

United States v. Wydermyer, 51 F.3d 319 (2d Cir. 1995)       23

 

United States v. Zarra, 298 F.Supp. 1074 (M.D.Penn. 1969), aff’d,

423 F.2d 1227 (3d Cir. 1970) 4

 

Young v. United States, 288 F.2d 398 (D.C. Cir. 1961)         22

 

 

STATUTES

 

2 U.S.C. 192         22

 

18 U.S.C. 208(a)  18, 19

 

18 U.S.C. 894       22

 

18 U.S.C. 1505     14

 

18 U.S.C. 1512     2, 3, 12, 17, 22

 

18 U.S.C. 1512(b)                11, 13

 

18 U.S.C. 1512(b)(2)(A), (B) and (b)(3)             1, 22

 

29 U.S.C. 530       22

 

 

 

 

RULES OF CRIMINAL PROCEDURE

 

Fed.R. Crim.P. 7(c)(1)            5, 12, 22

 

 

OTHER MATERIALS

 

Devitt, Blackmar, Wolff and O’Malley, Federal Jury Practice and Instructions, 17.04 (West Publ. 1992)   5

 

1 Wright, Federal Practice and Procedure, 125 (1969)           19

 

                I.

 

INTRODUCTION

 

                Defendant Espy argues that Count 35 of the Indictment, which charges him with Tampering with a Witness in violation of 18 U.S.C. 1512(b)(2)(A), (B) and (b)(3), should be dismissed for failure to (1) to allege the intent of “knowingly” in its charging language; (2) failure to state facts sufficient to support the allegations; (3) failure to state facts sufficient to show that misleading conduct was conducted toward another person; and (4) failure to reveal the identity of the witness with whom defendant Espy tampered.

                The indictment clearly sets out allegations of a “knowing conduct” by the defendant, and provides sufficient facts to place defendant on notice of the charges so he may defend himself.  Thus, the defendant’s motion should be dismissed.

II.

ARGUMENT

A.            BACKGROUND

                An indictment is sufficient under the Constitution so long as it fairly pleads all of the essential elements of an offense and “apprises a defendant of the crime with which he is charged so as to enable him to prepare his defense and to plead judgment of acquittal or conviction as a plea to a subsequent prosecution for the same offense.”   United States v. McLennan, 672 F.2d 239, 242 (1st Cir. 1982).   See, e.g., Hamling v. United States, 418 U.S. 87 (1974);  Russell v. United States, 369 U.S. 749 (1962); Portnoy v. United States, 316 F.2d 486, 488 (1st Cir.).  The government’s indictment provides defendant Espy with ample information to prepare his defense, as well as, defend himself against threats of double jeopardy.

B.            THE INDICTMENT SUFFICIENTLY ALLEGES A VIOLATION OF

                18 U.S.C. 1512 AND PROPERLY INFORMS THE DEFENDANT OF

                THE CHARGES

 

                1.             The “Knowing” Requirement of the Statute Is Met In Count 35

 

                The indictment must be sufficient enough to advise the defendant of the specific charge against him in order to prepare a defense and to protect him against double jeopardy.  United States v. Poindexter, 725 F. Supp. 13, 20-21 (D.D.C. 1989).  “An indictment is sufficient in this regard if it contains the elements of the offense and enough detail to apprise the defendant of the particular offense with which he is charged.”  Id. at 21. As one court noted:

[a]n indictment is sufficient if it (1) contains the elements of the offense charged, (2) fairly informs a defendant of the charge, and (3) enables the defendant to plead acquittal or conviction in bar of future prosecutions for the same offense.  ‘Practical, not technical considerations govern the validity of an indictment and the test of the validity of an indictment is not whether the indictment could have been framed in a more satisfactory manner, but whether it conforms to minimal constitutional standards.’

 

United States v. Wiley, 979 F. 2d 365, 367 (5th Cir. 1992)(citation omitted).  This principle of indictment interpretation has long been recognized by courts.  The Supreme Court noted in United States v. Hess, 124 U.S. 483 (1888):

The language of the statute may be used in the general description of an offense, but it must be accompanied with such statement of the facts and circumstances as will inform the accused of the specific offense, coming under general description, with which he is charged.

 

Id. at 487.

 

                Count 35 of the Indictment accomplishes what the law requires.  Defendant Espy mistakenly argues that the count is flawed because the scienter requirement is necessary to apprise him of the violation of the statute.[1]  However, an allegation of the requisite state of mind, such as the word “knowing,” is not necessary to meet this standard.

                When an indictment alleges sufficient facts to show intent, the “recitation of the words ‘knowing,’ ‘willful,’ or intentional, or any of their derivations” is not necessary.  United States v. Purvis, 580 F.2d 853, 858 (5th Cir. 1978).  United States v. Zarra, 298 F.Supp. 1074, 1077 (M.D.Penn. 1969), aff’d, 423 F.2d 1227 (3d Cir. 1970) (“[a]n indictment charging a statutory offense in language and containing allegations necessarily or fairly importing guilty knowledge need not contain formal words ‘knowingly,’ ‘willfully,’ ‘feloniously,’ or ‘unlawfully’”).  Indictments do not need to always plead required scienter elements in precise statutory terms such as “willfully” or “knowingly” so long as other words or facts contained in the indictment “necessarily or fairly import guilty knowledge.”  Madsen v. United States, 165 F.2d 507, 509-10 (10th Cir. 1947).  See also Hughes v. United States, 338 F.2d 651, 652 (1st Cir. 1964) (scienter element is sufficiently pleaded if “other allegations in the indictment compel an inference of intent”);  Griffith v. United States, 230 F.2d 607 (6th Cir. 1956) (word “knowingly” not required when other words “plainly and definitely indicate . . . the essential ingredient of scienter”). 

                Count 35 provides the defendant with notice of the scienter required for conviction.  As stated before, the indictment is to be read as a whole, and “[i]t is, of course, true that one count may be aided by incorporating the allegations of another count by reference.”  United States v. Gordon, 253 F. 2d 177, 180 (7th Cir. 1958).  Although “each count must be judged on its own allegations,” that judgment may be made by “either those [allegations] directly” in the count or those made “by reference.”  Id.  This drafting tool, incorporating allegations in one count by reference into another count, is expressly allowed by the federal rules.  Fed.R.Crim.P. 7(c)(1).  By directly incorporating facts from other portions of the Indictment, Count 35 anticipated the concerns of indictment pleading, and easily meets constitutional requirements. 

                “Knowing” means that the defendant was aware of his actions, in that they were voluntary and intentional, realized what he was doing was wrong and did not act because of ignorance, mistake or accident.  See Devitt, Blackmar, Wolff and O’Malley, Federal Jury Practice and Instructions, 17.04 (West Publ. 1992).

                In United States v. Diecidue, 603 F.2d 535 (5th Cir. 1979), a case stating that “despite defendants’ arguments reflecting a tireless search for ambiguity and omission in the indictment,” the indictment adequately alleged all elements and properly informed defendant of the charges, the defendants attacked a conspiracy count for failing to allege knowledge because words like “knowing” and “willingly” were supposedly absent.  Id. at 546.  These words were present in the first paragraph of the indictment.  Id.  The court held that because “willfully” and “knowingly” were used in the first paragraph of the indictment, this intent language was imported into the counts charging the overt acts of the conspiracy.  Id.  The court further held that taken as a whole, the allegations of the count sufficiently charged the defendants with the specific intent to commit the described offense.  Id.  In the case at bar, the intent language is clearly stated earlier in the Indictment.

                The Indictment at Count 35 specifically alleges that the defendant “engaged in misleading conduct toward another person.”  (Indictment, 30).  “Knowing” conduct is implicit in such an allegation.  By specifically alleging that defendant Espy engaged in misleading conduct, the activities clearly imply that his acts were of his own volition and intentional.  The language also eliminates a possibility that he acted by mistake or accidentally.  The clear wording of the Indictment implies “knowing” conduct.  Moreover, evidence of defendant’s knowing conduct is found in other specific references.

                Count 35 of the Indictment, in paragraph 29, specifically incorporates paragraphs 1 through 14, as well as paragraphs 26 through 28.  Therefore, that count has a part of its allegation paragraph 12.b., which alleges that:

b.  on or about April 8, 1994, in response to a request by Special Agents of the USDA Inspector General to produce a copy of defendant ESPY’s travel itinerary for the weekend of January 15 through 16, 1994, defendant ESPY caused to be made and delivered to the USDA Inspector General Agents an altered travel itinerary which deleted all references to defendant ESPY’s girlfriend, the Chairman of Tyson Foods, limousine service provided by Tyson Foods and the Green Bay v. Dallas 2nd Round National Football Conference football game which defendant ESPY and his girlfriend attended as guests of Tyson Foods. (emphasis added).

 

Since paragraph 12.b. is part of 14 paragraphs, the defendant was provided additional incorporation references.  As a result, Count 35 specifically alleges paragraphs 24 through 26 of the Indictment, which state:

26. The USDA Office of Inspector General was a law enforcement organization charged with investigating potential violations by USDA employees of federal laws and, among other things, applicable Executive Branch and USDA ethics regulations.  Beginning on or about March 17, 1994, USDA Inspector General Special Agents were conducting an investigation regarding the acceptance by USDA employees of gifts and gratuities from Tyson Foods, a “prohibited source.”  It was material to the USDA Inspector General investigation to determine whether Tyson Foods had given, and USDA employees had accepted, anything of value and whether defendant ESPY had received anything of value from Tyson Foods.

 

27. On or about April 1, 1994, in Washington, D.C., defendant ESPY was interviewed by Special Agents of the USDA Office of Inspector General and made false statements and representations.  During the interview, defendant ESPY referred to trip itineraries for official travel he undertook in May 1993 and January 1994.  At the conclusion of the interview, defendant ESPY was asked to produce these trip itineraries.  On or about April 8, 1994, defendant ESPY caused to be delivered to USDA Inspector General Special Agents an altered and false trip itinerary for the weekend of January 15 through 16, 1994, which concealed and covered up material facts.

 

28. From on or about April 1, 1994 until on or about April 8, 1994, in the District of Columbia, defendant ESPY knowingly and willfully falsified, concealed and covered up by trick, scheme and device material facts and made false, fictitious and fraudulent statements and representations to a department and agency of the United States, the USDA Inspector General, in a matter within its jurisdiction, namely, its investigation of allegations of the unlawful receipt of gratuities by defendant ESPY in that:

 

a. On or about April 1, 1994, defendant ESPY, in response to questions posed by Special Agents of the USDA Inspector General, stated and represented that following an overnight stay at the TMDC, on Sunday, May 16, 1993, Tyson Foods flew him back to Washington National Airport in its corporate jet because defendant ESPY was directed to return to the White House for dinner with the President and there were no available commercial airline facilities to return him to Washington, D.C. in time to attend the dinner.  In truth and fact, (1) as early as May 6, 1993, defendant ESPY had planned to return to Washington, D.C. on a Tyson Foods' corporate jet; (2) commercial airline flights were available to defendant ESPY from Arkansas to the Washington National Airport; and (3) defendant ESPY's staff had previously made commercial reservations from Arkansas to the Washington National Airport which defendant ESPY had directed to be canceled;

 

b. On or about April 8, 1994, defendant ESPY caused his staff to prepare and deliver to the USDA Inspector General an altered and false trip itinerary which concealed and covered up material facts, in that references on Saturday, January 15, 1994, to: (1) defendant ESPY’s girlfriend, (2) arrangements for “Limo service” in Dallas, Texas, (3) the Chairman of Tyson Foods and his girlfriend at the “Mansion on Turtle Creek,” and references on Sunday, January 16, 1994, to (4) a “brunch at Stadium in Irving, Texas,” (5) the “Green Bay vs. Dallas 2nd Round National Football Conference Playoffs,” and (6) defendant ESPY's girlfriend were deleted and deliberately concealed from the USDA Inspector General.   (emphasis added).

 

The incorporated paragraphs provide the defendant sufficient facts to infer that defendant’s actions were knowing.

                Paragraph 12.b, incorporated into Count 35, alleges in the portion emphasized above, that defendant Espy caused the document to be made and delivered by his staff.  This allegation clearly intends to show that the defendant’s actions toward his staff were with knowledge.  That paragraph references the date of April 8, 1994, allowing the defendant to make the analysis that it is connected to the allegations in Count 35, paragraph 30, which specifically references that date.  Moreover, the emphasized portions of paragraphs 27 and 28.b, again incorporated by reference and therefore part of Count 35, also allege that defendant Espy caused his staff to deliver the document (paragraph n. 7) and repeated that he caused his staff to prepare and deliver the document (paragraph 28.b). 

                The words “knowingly” or “willfully” are not needed when other words or facts contained in the indictment import guilty knowledge.  McLennan, 672 F.2d at 242.  Some Circuits have held that when specific intent is not sufficiently alleged in the indictment, the intent requirement can be gleaned from the appropriate section of the statute included with the charge.  E.g., Martinez v. United States, 981 F.2d 867, 871 (6th Cir. 1992); United States v. Arteaga-Limones, 529 F.2d 1183, 1200 (5th Cir. 1976); United States v. Johnson, 414 F.2d 22, 26 (6th Cir. 1969).  The relevant sections of the United States Code are clearly set forth after paragraph 30, on page 42 of the Indictment.  The defendant, therefore, was given notice of the scienter requirement by reference to the United States Code.

                The allegations in these incorporated paragraphs clearly establish the scienter of knowledge needed for a violation of Section 1512(b) in Count 35.  The recited facts indisputably establish that defendant Espy was acting knowingly.  The reference to the Code also provides defendant Espy with notice.

                Moreover, paragraph 28, again, incorporated by reference in Count 35, in alleging the scheme by which defendant acted in delivering the false itinerary, including causing his staff to prepare and deliver the false itinerary to the Inspector General, clearly states that defendant acted “knowingly.”  Therefore, the term “knowingly” is expressly referenced in Count 35.

                The government recognizes that defendant’s conduct must be done “knowingly” as required by the statute.  The government also acknowledges that it has to prove that “knowing” conduct at trial, beyond a reasonable doubt.  The jury must be informed of this requirement, and, as argued herein below, such instruction should come at the end of the parties’ cases.  However, as presently pled, the Indictment properly apprises defendant of the scienter required of the statute with which he is charged.  The statute more than passes constitutional muster.

                2.             Count 35 Adequately Apprises the Defendant of the Charges

                                and Allows Him To Be Advised of the Charges and Prepare

                                His Defense

 

                Defendant Espy argues that Count 35 is flawed because it does not identify the actual nature of the misleading conduct or cite 18 U.S.C. 1515 to establish the conduct alleged to be misleading, and because no facts support the allegation that the conduct toward a witness was misleading.  This argument is strained and without support. 

                In the first place, Count 35 does not need to identify exactly what type of misleading conduct defendant Espy undertook.  The defendant cites no authority for his argument that each count of an indictment must not only track the statute itself, but must also track the definition section as well.[2]  Fed. R. Crim. P. 7(c)(1) states that the indictment “shall state for each count the official or customary citation of the statute . . . which the defendant is alleged therein to have violated.”  The rules refer to “the statute . . . which the defendant is alleged to have violated,” not statutes that provide definitions, or even statutes that may be instructive.

                Count 35 of the Indictment, in paragraph 30, states that “defendant Espy engaged in misleading conduct toward another person.”  Title 18 U.S.C. 1512(b) states that “[w]hoever uses intimidation, force, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person . . . shall be fined.”  Count 35 clearly tracks the language of the statute in accordance with the federal rules.

                Even if there is some reason that the definition section of the witness tampering provision needs to be incorporated into the Indictment, the Indictment still alleges all necessary information.  Indictments that, when read in their entirety, inform the defendant of all elements of the offense are generally sufficient even if lacking certain details of the crime charged.  See United States v. Turley, 891 F.2d 57, 59 (3d Cir. 1989) (indictment charging mail fraud sufficient because, when read in entirety, informed defendant of charges even though lacked details of defendant's scheme); United States v. Gipson, 46 F.3d 472, 474 (5th Cir. 1995) (indictment charging armed robbery under Hobbs Act sufficient even though alleged impact on interstate commerce in conclusory terms);  United States  v. Spaeni, 60 F.3d 313, 315 (7th Cir.) (indictment charging conspiracy sufficient even though failed to list specific date of beginning of conspiracy), cert. denied,  116 S. Ct. 536 (1995). 

                Defendant Espy’s misleading conduct toward the witness is provided in paragraphs 12.b, and 24 through 26, specifically incorporated in Count 35.  When reading Count 35 it clearly lays out the manner in which the grand jury found that he misled the witness.  These allegations provide the defendant with enough specificity to allow him to be advised of the specific charge against him and prepare his defense.  Poindexter, 725 F. Supp. at 20-21.  Nothing more is required.

                In Poindexter, the defendant was charged in one count to have “obstructed and endeavored to obstruct inquiries being had by several committees of the House of Representatives in violation of 18 U.S.C. 1505.  Id. One of two ways the obstruction allegedly occurred was by the dispatch of false letters to the committees on July 21, 1986.[3]  The defendant attacked the charging paragraph, which alleged his July 21 letters, which referred to 1985 letters, were false and misleading, because, the defendant well knew and believed, the 1985 letters . . . would not have been a truthful response to the 1986 inquiries.”  Id. at 21.  The defendant argued the count did not identify the 1985 letters further or specify in what manner the letters were false.  Defendant claimed that the allegation was vague and did not permit him to prepare for trial on that count.  However, the court disagreed, stating that references to the author of the letter and previous information provided by the Independent Counsel, furnished sufficient information to the defendant about the letters to enable him to prepare his defense and to protect him against double jeopardy.  Id. at 21.

                The instant Indictment provides substantially more information than that referred to in Poindexter.  The allegation in Count 35 is that defendant Espy was interviewed on April 1, 1994, by agents of the USDA Inspector General’s office.  He discussed his trip to Dallas and his attendance at a Dallas Cowboys/Green Bay Packers football game during that trip.  Defendant Espy referred to a document during his interview as his itinerary.  The agents requested a copy of the document, and the defendant agreed to provide it to them.  On April 8, 1994, the defendant met with and directed a member of his staff to have certain information removed from his itinerary for that trip.  That information is specified in the Indictment. That individual went to another member of the defendant’s staff, and provided this second individual with defendant Espy’s directions for changes to the itinerary.  This second individual then made the changes.  After the changes were made, the altered itinerary was given to the first individual who showed defendant the changed itinerary. Defendant then directed this person to take the itinerary to the Inspector General’s Office.  The defendant did not tell either member of his staff, that during the April 1, 1994 interview with the USDA Inspector General agents, he had specifically referred to some of the information that he directed to be removed.  Instead, defendant Espy gave a reason unrelated to the interview for taking out the information.

                The defendant cites United States v. Nance, 533 F.2d 699 (D.C.Cir. 1976), for the proposition that anything less than dismissing count 35 would allow the government “a free hand to insert the vital part of the indictment without reference to the grand jury.”  Id. at 701; (Mot. To Dismiss Count 35 for Failure to State An Offense, at 6).  The defendant fails to grasp the difference between a defendant’s constitutional right to know what offense he is charged with and his need to know the evidentiary details which will be used to establish his commission of that offense.  Diecidue, 603 F.2d at 547 (discussing how Nance only applies in situations where the indictment fails to mention any pertinent information leaving the defendant completely unaware of what crime he is being charged).  In Nance, a federal wire fraud case, the offending counts listed the name of the victim, the date of the false representation, the amount involved and the date the sums were paid, but there were no representations as to the nature of the false representations.  Id., at 700.[4]

                Indictments do not need to include explicit discussions of every detail.  They only need to notify the defendant so he can prepare his defense and be on notice for double jeopardy concerns.   Explicit details serve no purpose in alerting the defendant as to what charges he is facing and are consequently unnecessary in a sufficient indictment.  See Diecidue, id. (stating that in a discussion of how the crime did effect interstate commerce “contributed virtually nothing to the defendant’s understanding of the nature of the offense charged”).  In Nance, the Indictment was gave no information on the nature of the charges.  In the instant case, the defendant has sufficient information to be advised of the charges and formulate a defense.

                In a situation in which the government provided little to no detail in its indictment, Judge Bazelon of the District of Columbia Circuit found no problem with the sufficiency of the indictment.  In that case, United States v. Conlon, 628 F. 2d 50 (D.C. Cir. 1980), the court considered an indictment that provided:

                In the period from on or about December 1976 through June 1977, in the  District of Columbia, JAMES A. CONLON, the Defendant, being an officer and  employee of the executive branch of the United States Government, that is, the  Director of the United States Bureau of Engraving and Printing, unlawfully and  knowingly did participate personally and substantially as such officer and  employee, through decision, recommendation, and the rendering of advice, in a  proposal of the American Bank Note Company for a Security Signature System for  U.S. Currency, a particular matter in which to his knowledge the American Bank  Note Company, a company with which he was negotiating and had an arrangement  concerning prospective employment, had a financial interest. [In violation of 18 U.S.C. 208(a), the conflict of interest law].

 

Id. at 154.  The court granted a motion for a bill of particulars in which the defendant asked whether the government was alleging that defendant made (1) a recommendation, (2) he rendered advice, (3) made a decision, (4) negotiated with the American Bank Note Company, or (5) had an arrangement with the American Bank Note Company, and for each the dates, content, or substance.  In response to the bill of particulars, the government provided dates on the first three inquiries and provided letters signed by the defendant which evidenced the act, but the information on the fourth and fifth inquiries were “scanty” with the government professing not to know the details.  Id. at 152-3.  At oral argument on the motion challenging the sufficiency of the indictment, the government again offered much the same evidence.  Id. at 153.  In overturning the district court’s decision to dismiss the indictment because the terms “arrangements” and “negotiating” needed specific acts of negotiating plead, the District of Columbia Circuit Court held:

We find that it is not necessary to require the pleading of “specific  acts of negotiating” or “specific bilateral arrangements or acts of arranging” in order to save

208(a) from vagueness.  In the context before us, the  terms “negotiating” and “arrangement” are not exotic or abstruse words,  requiring detailed etymological study or judicial analysis.  They are common  words of universal usage. . . .  People of ordinary intelligence would have  fair notice of the conduct proscribed by the statute.  That there may be  marginal cases is not sufficient reason to hold that a statute is too ambiguous  to define a criminal offense. . . .

 

An indictment is sufficient if it clearly informs the defendant of the precise offense of which  he is accused so that he may prepare his defense.  [citing Russell v. United States, 369 U.S. 749, 763-64 1962; United States v.  Debrow, 346 U.S. 374, 377-78 (1953)].  The test for  sufficiency is whether it is fair to require the accused to defend himself on  the basis of the charge as stated in the indictment.  [citing United States v. Caldwell, 544 F. 2d 691, 694 (4th Cir. 1976); United States v. McGhee, 488 F.2d 781, 784 (5th Cir. 1974); see generally, 1 Wright, Federal Practice and Procedure, 125 (1969)].  In some cases, it  is enough if the indictment puts the charge in the words of the statute but  this is acceptable only where the statute itself fully, directly, and  unambiguously sets forth all of the elements of the offense.  [citing Hamling v. United States, 418 U.S. 87, 117-19 (1961); United States v. Debrow, 346 U.S. 374, 376-78 (1953)] . The more  generally applicable rule is that the indictment may use the language of the  statute, but that language must be supplemented with enough detail to apprise  the accused of the particular offense with which he is charged.

 

Conlon, 628 F.2d at 154-56.  The court found the Conlon indictment, with much fewer details than the instant Indictment, sufficient for the purposes of informing the defendant of charges against him and allowing him to prepare his defense.

                When reading Count 35 in conjunction with the rest of the indictment and those paragraphs incorporated by reference, the misleading conduct is obvious.  The indictment must be looked at as a whole.  See United States v. Morris, 18 F.3d 562, 567-68 (8th Cir. 1994) (indictment charging bank fraud sufficient because, when read in conjunction with other counts, common fraud scheme apparent);  United States v. Morlan, 756 F.2d 1442, 1445-46 (9th Cir. 1985) (indictment charging defendant with assaulting bank employees sufficient because, when read as whole, delineated elements of crime despite failure to name particular employees);  United States v. Staggs, 881 F.2d 1527, 1531-32 (10th Cir. 1989) (indictment charging various drug violations sufficient even though failed to specify three felony violations because statutory language tracked and “practical” reading of other counts adequately informed defendant of offenses; United States v. Perkins, 748 F.2d 1519, 1524-25 (11th Cir. 1984) (indictment charging obstruction of justice sufficient because defendant adequately apprised of charge and its elements even though failed to identify proceeding allegedly obstructed).   Count 35 alleges the methods by which defendant mislead his staff, while the incorporated paragraphs provide ample evidentiary detail of the episode to allow him to defend himself and understand the charges. 

                3.             The Indictment Need Not to Precisely Allege Facts That Misleading Conduct Was Directed Toward Another Person

 

                As stated above, the indictment must be read as a whole.  When reading count 35 in conjunction with the entire indictment it is clear that the misleading conduct was directed towards a specified person.  Paragraph 28.b of the indictment states that “defendant Espy caused his staff to prepare and deliver to the USDA a false itinerary which concealed and covered up material facts.”  Defendant’s allegation that the Indictment failed to allege that misleading conduct was directed at another simply ignores the Indictment’s method of incorporation by reference.

 

 

4.             Defendant is Well Aware of the Identity of the Individuals Involved in Count 35

 

                Given the limited number of individuals on his staff on April 8, 1994, it is difficult to believe that defendant does not know the identities of those people referred to in Count 35. The government does not concede that the defendant is entitled to the information through the Indictment.  This Circuit has stated that under Fed. R. Crim. P. 7(c) it is not necessary to allege the identity of a victim. Young v. United States, 288 F.2d 398, 400 (D.C.Cir. 1961) (holding that if such information is desired it should be sought for in a bill of particulars).  Only when the statute charged “involves a particular class or category of persons, for example, an officer of a banking institution, so that the person of that particular class or category would be of the essence of the offense” is the identity of the victim necessary.  Id.  Title 18 U.S.C. 1512 does not apply to a certain class of people as contemplated by that holding.[5]

 

                However, to avoid a waste of the court’s resources to resolve this issue, the government acknowledges that the proof will show that the inidividual who defendant Espy directed to remove the information from the itinerary was Eloise Thomas, and the person who actually made the changes to the itinerary was Betty Stern.

5.             Dismissal Is Not A Remedy

                Assuming, arguendo, that the indictment is flawed as alleged, it is certainly not fatal to its validity as a charging document.  “[J]ustifications for technical rigidity have largely disappeared in an age of criminal codes and well settled burdens of proof.”  United States v. Wydermyer, 51 F.3d 319, 324 (2d Cir. 1995).  The Supreme Court has stated that “[c]onvictions are no longer reversed because of minor technical deficiencies which did not prejudice the accused.”  Smith v. United States, 360 U.S. 1, 9, 79 S.Ct. 991, 996 (1959).

III.

CONCLUSION

                The defendant has been adequately apprised of the charges against him in Count 35, and may properly plead to them and prepare his defense with the


information provided.  Any confusion over the level of scienter required may properly be handled through jury instructions.  For the foregoing reasons, defendant’s motion should be dismissed.

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, Jr.

                                                                                                Nathan J. Muyskens

 

                                                                                                103 Oronoco Street, Suite 200

                                                                                                Alexandria, Virginia  22314

                                                                                                Tel:  (703) 706-0010

                                                                                                Fax:  (703) 706-0076

 



 

 


 



[1] The defendant cites United States v. Rodolitz, 786 F.2d 77, 81 (2d Cir.), cert. denied, 4779 U.S. 826 (1986) for the proposition that the Second Circuit has found “knowing” as an “element” of 18 U.S.C. 1512 that must be expressly pled in an indictment.  In fact, Rodolitz states, “Section 1512 of 18 U.S.C. provides in pertinent part: ‘whoever knowingly . . . engages in misleading conduct toward another person, with intent to . . . influence the testimony of any other person in an official proceeding . . .’ shall violate the statute.”  Similarly, the defendant cites United States v. King, 762 F.2d 232, 236 (2d Cir.), cert. denied, 475 U.S. 1018 (1986), which merely sets out the statute.  The government does not dispute that “knowing” engagement is part of the statute and it has the burden of establishing “knowing” conduct, beyond a reasonable doubt, at trial.  However, the Indictment accomplishes the requirement of putting the defendant on notice of the state of mind requirement.  To the extent the defendant argues that these cases find that “knowing” must be pleaded in the indictment, he is wrong.  United States v. Bordallo, 857 F.2d 519, 524 (1985), modified, 872 F.2d 334 (9th Cir.), cert. denied, 493 U.S. 818 (1989), does use “knowing” as an element, but is not faced with the issue of whether it must be pleaded expressly in an indictment.  The cases cited in footnote 1 of the defendant’s motion have a similar analysis.  Kinoy v. District of Columbia, 400 F.2d 761 (D.C. Cir. 1968), cited by defendant as “Kilnoy”in its motion, involved the District of Columbia Code and not a federal statute.  Id., at 765.  Also, it does not involve an indictment, but a criminal information, id., at 294, which is not subject to review by a grand jury.  Moreover, the flaw of the charging document in Kinoy was that it did not include elements that described actual proscribed conduct, “congregating and assembling.”  At issue in the case were  not scienter requirements such as “knowing.” Id., at 295.   Kinoy adds little analytical value to the instant issues.

[2] United States v. Rodolitz, 786 F. 2d 77, 81-82 (2d Cir. 1986), in analyzing Section 1512 for the purposes of its facts, cites Section 1515(3)(A), and interprets different examples of violations of that statute.  However, in concluding that the defendant’s conduct comes within the definitional terms of the statute, there is no representation that the government, in the Indictment,  cited the statute or needed to cite the statute to take advantage of its terms.  The government has been unable to locate any authority that holds that Section 1515, or any definitional sections, must be cited in an indictment in order to provide a defendant with proper notice of the charges and allow him to prepare his defense.

[3] The second way was by making arrangements for a meeting between House members and Oliver North in the course of which North made a number of false statements.  Poindexter, at 20.

[4] United States v. Thomas, 444 F.2d 919 (D.C. Cir. 1971), cited by defendant, mot. to dismiss Count 35, at 6, is also unavailing.  In Thomas, the court interpreted the District of Columbia’s burglary statute to find a violation of the statute only if the defendant entered a dwelling with the purpose of committing a specific crime.  By failing to allege the specific crime, defendant was to commit on entering the dwelling, the charging document failed to list an essential element.  In the instant case, there is no such interpretation of Section 1512.  By alleging the statutory provisions along with the detail of the Indictment, the defendant has been given the notice of the full charge as the defendant in Thomas was not afforded.

[5]See Russell v. United States, 369 U.S. 749, 764, 82 S.Ct. 1038, 1047 (1962) (the petitioners were charged with violating 2 U.S.C. 192 where the subject of the Congressional inquiry is central to prosecution under the statute, thus the victim was the "very core of criminality" and should have been named in the indictment);  United States v. Agone, 302 F.Supp. 1258, 1260 (S.D.N.Y. 1969) (dismissing an indictment for failing to name the victim in a labor management statute, 29 U.S.C. 530, written to protect "any member of a labor organization" where the identity of the victim "member of a labor organization" was crucial to meeting all elements of the statute); United States v. Rizzo, 373 F.Supp. 204, 206 (S.D.N.Y. 1973) ( the names and/or identities of the victims in a conspiracy to extort, under 18 U.S.C. 894, which does not apply to a certain group of people, were not the “core of the criminality” and need not be disclosed in the indictment).

 

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