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Criminal No. 96-0314 (JR)











                The November 12, 1999 evidentiary hearing in this case has solidified what was evident on defendant’s moving papers: defendant is unable to satisfy the very narrow requirements that on rare occasions allow a court to grant a “disfavored” motion for a new criminal trial.

                First, contrary to the assertions in defendant’s post-hearing memorandum, the testimony of former Secretary of Agriculture Michael Espy would not “have probably produced an acquittal” at defendant’s trial.  Mr. Espy’s testimony provided absolutely no substantive evidence regarding defendant’s actions or intent.  Rather, Mr. Espy – an interested party who was identified prior to trial as defendant’s co-conspirator and who could have been charged as a co-defendant with respect to the single count at issue – provided self-serving testimony that exculpated only himself, not defendant.  Even so, Mr. Espy’s testimony was speculative and rife with details that he could not fully recall. Furthermore, glaringly lacking from defendant’s memorandum is any discussion of the significant inculpatory evidence from Mr. Espy that undercut defendant’s defense.


                Second, defendant fails to address the dispositive fact that the hearing further established that he was aware of Mr. Espy’s testimony at the time of trial and that he, nevertheless, did not lift a finger either to attempt to procure it at trial or to make a timely motion for new trial.




                Mr. Espy’s testimony did not cast any doubt on the evidence at trial regarding Schaffer’s conduct or Schaffer’s intent regarding the Russellville weekend.  Mr. Espy was not aware of Schaffer’s conduct and, therefore, did not and could not refute any of the facts that the jury and the Court of Appeals found had demonstrated defendant’s intent.  For example, Mr. Espy did not refute that defendant (1) was aware that Don Tyson had invited Mr. Espy to the birthday party; (2) received the APF invitations himself and sent them to Mr. Espy at USDA; (3) made multiple false statements to Betty Stern concerning the true nature and details of the Secretary’s trip to Arkansas; (4) arranged for a Tyson Foods corporate jet to provide transportation to both Patricia Dempsey and to Secretary Espy; (5) caused the APF to create false vouchers for submission to USDA; and (6) lied to the FBI when interviewed about these events.

                Mr. Espy’s testimony was in the form of opinion testimony regarding what was in Espy’s mind with respect to the Russellville trip and, as such, did not bear on the important question at trial which, of course, was what was the defendant’s intent.  Unsurprisingly, Mr. Espy’s opinions painted these events in as benign a light as possible.  Even assuming Mr. Espy’s opinions were somehow relevant, they were formed without an accurate foundation of information and were contradicted by the record.

                Mr. Espy’s testimony that, “in [his] opinion,” the APF event was not a cover for him to attend the Musical Celebration hosted by Tyson Foods (Tr. at 23) was, at best, misinformed, and, at worst, a lie.  Whether Mr. Espy could recall it or not, the evidence demonstrated that Don Tyson invited Mr. Espy to a birthday party, offered use of a corporate jet, and sent the birthday invitation almost a week before the APF sent Mr. Espy an invitation to speak on the same date in Russellville.  (GX90).  Don Tyson informed Schaffer of that fact via a “bcc” (blind carbon copy).  Id.  On the same date that Don Allen prepared the invitations that supposedly “invited” Mr. Espy to speak at the APF event, the APF sent a memo to its board informing them that Secretary Espy had already agreed to be in Russellville on May 15, 1993.  The defendant carried this charade further by lying to Ms. Stern about the number of attendees, the duration of the meeting, a scheduled dinner, an aircraft chartered by APF, lodging provided by APF, Ms. Dempsey’s presence on the airplane, and other details.  Therefore, Mr. Espy’s opinion was totally divorced from the facts regarding his receipt of an invitation to the events in Russellville.

                Furthermore, Mr. Espy’s post hoc explanation regarding his travel to Russellville is belied by his own contemporaneous writings.  In his legal pads, on the date “4/27/93,” Mr. Espy wrote “Schedule b’day party – Ark.”  (GXEH-2).  This note clearly demonstrated what was on Mr. Espy’s mind at that time – not a speech, but a birthday party.[1]  Also, in his own pocket calendar, Mr. Espy scheduled for the afternoon of May 15, 1993 and the morning of May 16, 1993, “Tyson” – not “APF.”  (GXEH-11).  Mr. Espy’s testimony that the APF speech was paramount in his mind, therefore, did not withstand scrutiny. 

                Other evidence indicated that the birthday party drew Mr. Espy to Russellville in May 1993, and that Mr. Espy viewed the APF speech as an official reason to be in Russellville to attend the party.  Between January 1993, when Mr. Espy became Secretary of Agriculture, and August of 1994, when his conduct came under scrutiny, his travel records show that he had accepted only one invitation to speak to a group in Arkansas.[2]  (Tr. at 54-55).  On April 1, 1994, when agents of the OIG USDA inquired about gifts from “interested parties,” Mr. Espy continued in an effort to conceal his attendance at the birthday party.  (GXEH-21 at 2).  He told agents that he had traveled to Russellville and stayed at the Tyson complex “because of the lack of suitable hotels.”  Id.  He further claimed that he used a Tyson Foods jet because of a lack of available airline facilities.  Id.  At no time during that interview did Mr. Espy mention a birthday party hosted by Tyson Foods.  All of this evidence demonstrates that Mr. Espy’s opinion was not only irrelevant, it was also utterly lacking in credibility.

                Mr. Espy also speculatively opined that no one at Tyson Foods intended to influence him with respect to any official acts.  This self-serving opinion is undercut by Mr. Espy’s knowledge that Jack Williams had lobbied him on behalf of Tyson Foods[3] and his awareness that zero tolerance and safe handling labels were issues of major importance to the industry in May of 1993 – as demonstrated by the inclusion of those topics in the Secretary’s speech to the APF and by his warnings to the defendant and the industry in February of 1993 that safe handling labels were “coming and . . . coming fast.”  (Tr. at 72-73, 88).  The evidence showed that Mr. Espy addressed the APF, Don Tyson, John Tyson and Schaffer regarding zero tolerance and safe handling labels, knowing that immediately following the speech, he would be taken to a weekend-long birthday party where his girlfriend was waiting – all courtesy of Tyson Foods.  (Tr. at 74).  That, in that situation, Mr. Espy did not admit perceiving any effort to influence him borders on the absurd and is unlikely to sway a rational jury.

                Mr. Espy testified that he could not recall any interest by Tyson Foods in any policy affecting meat rather than poultry.  (Tr. at 29).  This lack of recollection is hardly substantive exculpatory evidence.  Furthermore, the underlying opinion is not supported by the evidence.[4]  It was Mr. Espy’s view that in May of 1993, Tyson Foods was aware, as was the entire meat and poultry industry, that Mr. Espy and the USDA were going to mandate safe handling labels on a very short time schedule.  (Tr. at 87-88).  USDA mandated safe handling labels in a single rule that covered all meat and poultry.  Therefore, if Tyson Foods and the defendant had an interest in the safe handling label issue, then they had an interest in a policy affecting meat and Mr. Espy’s testimony served to strengthen the evidence at trial with respect to that important issue.[5]

                To the extent that Mr. Espy provided substantive testimony, it was inculpatory of the defendant.  Mr. Espy’s testimony made clear that the issues of zero tolerance and the timing of safe handling labels were live and in play during April and May of 1993 and, additionally, his testimony and notes for his speech to the APF indicated that he spoke on those two issues to the APF.  (Tr. at 72-73; GXEH-6, EH-7).  Mr. Espy testified that, during the relevant time period, he had notified industry that mandatory safe handling labels – through an emergency interim rule – were “coming, and they were coming fast.”  (Tr. at 88).  This powerfully inculpatory evidence undercut the entire premise upon which Schaffer based his post-verdict motion for judgment of acquittal.  With Mr. Espy’s testimony, defendant presumably would not have succeeded in having the jury’s verdict as to the Meat Inspection Act overturned.  Therefore, Mr. Espy’s testimony would not have “probably produced” an acquittal.[6]


                Defendant previously conceded that he was aware of the substance of Mr. Espy’s testimony at the time of his trial.  Def.’s Mot. for New Trial at 6.  The Court additionally recognized during the hearing:

I have to tell you that Mr. Jeffress’ proffer, which is forthright and clear as Mr. Jeffress always is, seems to me to say, yes, we did know what the testimony would be at the time of trial, at least in every respect that is relevant to the question before [the Court].


(Tr., afternoon session, at 33).  From defendant’s concession in his papers and from the finding by the Court, it is clear that defendant does not satisfy the first prong of the test laid out in Thompson v. United States, 188 F.2d 652 (D.C. Cir. 1951), or the plain language of Fed. R. Crim. P. 33.  Evidence that was known but temporarily unavailable is, quite simply, not “newly discovered.”  As a result, regardless of the perceived value of Mr. Espy’s testimony, defendant’s motion cannot, as a matter of law, prevail.  It is not based on newly discovered evidence and it is untimely.  Therefore, this Court lacks jurisdiction to entertain it.  See United States v. Smith, 331 U.S. 469 (1947).

                Finally, the proffer by counsel for the defendant still does not demonstrate one iota of effort to procure this testimony at trial.  Defense counsel stated that he asked Mr. Espy’s counsel about the subject of the testimony and then asked to interview Mr. Espy.  Although counsel apparently shared information, the request to interview Mr. Espy was denied.  Oddly, Mr. Espy’s attorneys never even mentioned these requests to their client, Mr. Espy, and defense counsel never put its request in writing.  Counsel for the defendant then assumed that Mr. Espy was unavailable and proceeded to trial without ever bringing the subject of this “powerfully exculpatory testimony” of which defendant was being deprived to the attention of the Court.  Rather, counsel permitted the case to go to trial without even a hint that any injustice was occurring and that defendant should have the benefit of Mr. Espy’s testimony.  Nor did defendant mention this supposed miscarriage of justice to this court within the seven-day window that Rule 33 allows for new trial motions on any ground other than newly discovered evidence.  Rather, it was not until more than ten months after Mr. Espy’s acquittal and fifteen months after the jury’s verdict against the defendant – and well after the Court of Appeals decided an appeal that defendant would now turn into an exercise in futility –  that, for the first time, defendant raised his claim.  The import of the cases cited by the Government, United States Opp. to Def.’s Third Mot. for New Trial at 9-10, was not that defendant necessarily would have succeeded in attempting to procure Mr. Espy’s testimony by asking for a continuance or by taking other steps, but, by taking such steps, defendant would have demonstrated that he believed an injustice was occurring and put both the Court and the Government on notice that he was being deprived of “unavailable” testimony.  Defense counsel cannot simply paper over his continuing lack of diligence by announcing later that he “assumed” that his efforts would have been futile.



                Defendant has failed to meet the heavy burden required to demonstrate that Mr. Espy’s testimony has been discovered since trial, that he diligently attempted to procure the testimony at trial, or that the testimony would probably produce an acquittal in a new trial.  The interests of justice dictate that defendant’s motion be denied, that the jury’s verdict stand, and that sentencing proceed as scheduled on December 6, 1999.

Dated:       November 22, 1999                                                  Respectfully submitted,

                                                                                                                Donald C. Smaltz

                                                                                                                Independent Counsel



                                                                                                By:           __________________________

                                                                                                                Wil Frentzen

                                                                                                                Associate Independent Counsel

                                                                                                                Charles M. Kagay

                                                                                                                Chief Appellate Counsel

                                                                                                                Joseph P. Guichet

                                                                                                                Senior Associate Independent Counsel

                                                                                                                Office of Independent Counsel

                                                                                                                103 Oronoco Street, Suite 200

                                                                                                                Alexandria, VA 22314

                                                                                                                (703) 706-0052



[1]  After this note was shown to Mr. Espy at the hearing, his best effort to explain its significance was “[t]here’s no rhyme or reason really in what I put on the sheet that day.  So I see it here.  It’s here.  I don’t know why it’s here, but it’s here.”  (Tr. at 46).

[2]  At best, according to Mr. Espy, he “believed” that he gave one other speech in Arkansas during his two year tenure.  (Tr. at 92).

[3]  In any retrial, Mr. Espy’s uncertain suggestion that Jack Williams may have only lobbied him with respect to personnel issues would be soundly impeached by Mr. Espy’s prior inconsistent statements to Bruce Ingersoll of the Wall Street Journal, who would be available to testify.  Mr. Ingersoll would state that during a March 4, 1994, interview, Mr. Espy admitted that defendant’s subordinate, Mr. Williams, had lobbied him at USDA on a number of occasions regarding issues of importance to Tyson Foods, including zero tolerance.  Bruce Ingersoll, Espy Inquiry Focuses on Mystery Memo to Learn If Coverup Occurred Over Industry Favoritism, Wall St. J., Jan. 16, 1995 at A16 (attached as Exhibit 1).

[4]  Regardless of Mr. Espy’s testimony, the evidence at trial was that Tyson Foods had a $500 million per year beef and pork division.  The evidence also demonstrated that the Beef and Pork Division was concerned about the timing, form, and content of safe handling labels.  (GX130).

[5]  Mr. Espy’s testimony that he considered John Tyson a “friend” was undercut by his testimony that he did not know what John Tyson’s job was.  Of course, if he knew that John Tyson was President of the Beef and Pork Division, then he must have known that Tyson Foods had a red meat and pork division.

[6]  The cases defendant cites are easily distinguishable on their facts.  Amos v. United States, 218 F.2d 44 (D.C. Cir. 1954), is almost totally devoid of facts or analysis, however, what can be gleaned from the opinion is that, unlike Mr. Espy’s testimony, the proffered testimony there was substantive and went directly to the defendant’s claim of self-defense.  Further, the court noted that the proffered witness, unlike Mr. Espy, was a “disinterested” party and, most importantly, defendant could not locate the witness, through no fault of his own.  Id.  In United States v. Liebo, 923 F.2d 1308, 1313-14 (8th Cir. 1991), the defendant offered evidence that substantively supported his defense and refuted the government’s evidence, with regard to an issue about which the jury asked a question, and the evidence was unknown to the defendant at the time of trial.  Finally, in United States v. Garland, 991 F.2d 328 (6th Cir. 1993), the defendant was able to offer a newly discovered foreign legal decision that irrefutably demonstrated that the defendant had been defrauded regarding a foreign business deal and had not fabricated the deal as a fraud on others, and was unable despite diligent search to find the necessary witness before trial.  In fact, the exculpatory evidence offered in Garland so completely undermined the government’s theory at trial that the court noted “[t]his case illustrates the reason the Department of Justice should thoroughly investigate its cases and not simply assume that the accused is not telling the truth when his story is difficult to verify immediately.”  Id. at 336.