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IN THE UNITED STATES DISTRICT COURT
UNITED STATES OF AMERICA
ALPHONSO MICHAEL ESPY,
Criminal No. 97-0335 (RMU
UNITED STATES MOTION TO PRECLUDE
IRRELEVANT EVIDENCE AND REQUEST
FOR A CORRECTIVE INSTRUCTION
The Government again moves to preclude further efforts by defense counsel to directly or indirectly argue, infer, or present evidence at trial (1) concerning race, (2) claiming an improper motivation by the Office of Independent Counsel or any of its agents, USDA employees or former employees, or any person other than a testifying witness, or (3) attacking the thoroughness with which this investigation has been conducted. Also, given the great amount of elicited testimony and statements of counsel already before the jury, the Government requests that a corrective instruction be provided to the jury as soon as possible.
The purpose of the instant trial is to determine whether defendant Espy violated federal criminal laws. As a tactical matter, however, defense counsel has subtly (and occasionally not-so-subtly) elicited testimony and introduced evidence to shift the jurys focus from that issue to the issue of how and why this investigation began. As a result, the issues currently prominent before the jury are (1) whether the defendant was held to a higher standard (and, thus, is now being prosecuted) because he is an African-American; (2) whether bureaucrats at the USDA and Republicans hoped, and/or sought to ensure, that defendants tenure as Secretary of Agriculture was an unsuccessful one; and (3) whether it is fair that an Independent Counsel focuses on one individual and thoroughly reviews his conduct to determine if he violated criminal laws. Each of these issues is wholly irrelevant to the question of whether defendant Espy violated the criminal laws as alleged by the grand jury. These arguments can only serve to encourage jury nullification a practice wisely prohibited in this Circuit.
Argument, evidence, or inference relating to race is completely irrelevant to a determination of defendants innocence or guilt. It is extraneous, inflammatory, and can only constitute an attempt to encourage the jury to acquit the defendant regardless of whether he committed the acts alleged in the indictment.
Since opening statements, defense counsel has made an issue of defendants race. As best can be determined, defense counsel suggests that race is relevant because defendants race caused persons at USDA, and others outside USDA, to wish failure upon defendant Espys tenure as Secretary of Agriculture. See 10/1/98 Trial Tr. at 94-98 (Attached as Exhibit A). In other words, because of Espys race, people were out to make him fail. The obvious fallacy with this argument is that the second proposition is equally as irrelevant to this trial as the first. Even if others sought to make defendant Espy fail, such evidence does not impact the question of whether he violated the law. No evidence exists in the record suggesting that people hoping defendant would fail forced him to accept the alleged gratuities or make the alleged false statements. Nor does any evidence suggest that those persons entrapped or framed defendant. Indeed, whether the entire United States citizenry loved or hated defendant (for any reason) is wholly irrelevant to these proceedings. Consequently, defense counsel must be precluded from making further efforts to raise the issue of (1) defendants race, or (2) a supposed desire on the part of some persons to make Espy fail.
Equally irrelevant to the issue of defendants guilt or innocence are (1) that this is an Independent Counsel prosecution or (2) the thoroughness with which this office has investigated defendant. Neither this office nor the Independent Counsel Reauthorization Act is on trial. Clearly, evidence and argument relating to the nature of this investigation, as well as the conduct or the expenditures of this office lack any tendency to make the existence of any fact that is of consequence to the determination of [innocence or guilt of the defendant] more probable or less probable than it would be without the evidence. See Fed. R. Evid. 401. As emphasized above, the issue before the jury is whether defendant violated the specific criminal statutes alleged in the indictment. Evidence and arguments regarding the history of this investigation and the expenditures of this office, when presented at trial, serve not to prove innocence but only to encourage the trier-of-fact to infer an improper motive on the part of the government in bringing the present indictment. Cf. United States v. Armstrong, 517 U.S. 456, 463, 116 S.Ct. 1480, 1486 (1996) (A selective-prosecution claim is not a defense on the merits to the criminal charge itself, but an independent assertion that the prosecutor has brought the charge for reasons forbidden by the Constitution.). If defendant had a valid legal complaint on this issue, he certainly would have raised it to this Court pre-trial. Having failed to do so, attempts to raise the issue before the jury must be precluded.
Indeed, none of the aforementioned issues address the defendants conduct at all, much less whether or not he knew that conduct was illegal. Thus, they are wholly irrelevant to a determination of innocence or guilt. Given this fact, defense counsels efforts to repeatedly raise these issues before the jury can only be viewed as an attempt to secure a nullified verdict. See United States v. Rosado, 728 F.2d 89, 93 (2d Cir. 1984) ([Defendants] invited jury nullification by [bringing into question at trial] the Governments motives in subpoenaing [defendants] and prosecuting them for contempt.). This Circuit's position on the issue of jury nullification (and the secondary issue of informing a jury of that power) is well settled. In United States v. Washington, 705 F.2d 489 (D.C. Cir. 1983) the D.C. Circuit unequivocally expressed its opposition to attempts by counsel to secure a nullified verdict and rejected the argument that the jury should be informed of any power they may possess to nullify an otherwise guilty verdict, stating:
It cannot be gainsaid that juries can abuse their power and return verdicts contrary to the law and instructions of the court, and thus nullify the criminal law, but courts generally have refused to give such an instruction to the jury. . . . A jury has no more right to find a guilty defendant not guilty than it has to find a not guilty defendant guilty, and the fact that the former cannot be corrected by a court, while the latter can be, does not create a right out of the power to misapply the law. Such verdicts are lawless, a denial of due process and constitute an exercise of erroneously seized power.
Id., 705 F.2d at 494 (internal citations omitted).
Consequently, this Court should preclude defense counsel from continuing to raise these issues before the jury either in argument or questioning. Moreover, because the jury has been exposed to these issues, a correcting instruction should be provided.
The Federal Rules of Evidence, when properly adhered to by trial counsel, enable the trier of fact to focus on the sufficiency of the evidence to determine, beyond a reasonable doubt, whether the defendant committed the offenses alleged in the Indictment. To ensure that this indictment is adjudicated on the merits, and only on the merits, defense counsel should be precluded from presenting evidence or argument before the jury (1) concerning race or racial discrimination in an attempt to secure a nullified verdict, (2) alleging that persons other than the testifying witness sought to make defendant Espy fail during his tenure as Secretary Espy or were in some other fashion out to get defendant Espy, or (3) attacking the nature of an Independent
Counsel investigation, or claiming improper motivation by the Government in its investigation and prosecution of the defendant.
Date: November 1, 1998.
OFFICE OF INDEPENDENT COUNSEL
In Re: Alphonso Michael (Mike) Espy
Donald C. Smaltz, Independent Counsel
Joseph P. Guichet, Assoc. IC
103 Oronoco Street, Suite 200
P.O. Box 26356
Alexandria, Virginia 22314
Tel: (703) 706-0010
Fax: (703) 706-0076
IN THE UNITED STATES DISTRICT COURT
UNITED STATES OF AMERICA
ALPHONSO MICHAEL ESPY,
Criminal No. 97-0335 (RMU
Upon consideration of the United States Motion to Preclude Irrelevant Evidence and Request For a Cautionary Instruction, and any opposition thereto, and good cause appearing,
IT IS HEREBY ORDERED that the defendant and his counsel is prohibited raising, mentioning, suggesting, or referencing defendants race or any alleged racial discrimination;
IT IS FURTHER ORDERED that the defendant and his counsel are directed not to refer to the size or expenditures of the Office of Independent Counsel, the motivation for the investigation and prosecution of this case, or overzealousness of the prosecuting agency, or ask witnesses questions designed to elicit testimony regarding any of these issues; and
IT IS FURTHER ORDERED that this Order may be modified for good cause shown provided the matter is first raised with the Court in camera.
RICARDO M. URBINA
UNITED STATES DISTRICT JUDGE
GOVERNMENTS PROPOSED CORRECTIVE INSTRUCTION
There has been testimony by witnesses and statements by counsel emphasizing the defendants race. Defendant Espys race is irrelevant to your determination of innocence or guilt and must not be considered by you in any way when you are asked to decide this case. Upon first entering this courtroom to serve as jurors, you took an oath to render a verdict based on the evidence received and to not be persuaded by bias, prejudice, or sympathy. It is indeed your legal obligation to render a verdict based on the relevant evidence. And I now instruct you that the defendants race should not be considered by you in rendering that verdict.
You have also heard testimony speculating as to whether the investigation of defendant began because of some persons with bad motives. This evidence is also irrelevant to your determination and must not be considered by you in any way when it is time for you to decide your verdict. The question that will be placed before you, after all the evidence has been presented, is whether the government has proven beyond a reasonable doubt that the defendant violated the law. Why the government began investigating defendant Espy does not impact the question of whether or not he violated the law. Consequently, I instruct you not to consider this evidence during your deliberations.
 See also 10/1/98 Trial Tr. at 144-146 (although not specifically noting race, asserting that Espy believed there to be a Republican plot to get [defendant] and the he had to watch out for . . . Jeffrey Rush.)
 Of course defense counsel is free to inquire as to a witness bias. If counsel has a good faith basis for asking the question, he may inquire of a witness whether that witness wished defendant Espy to fail. However, the motivation for such desire would still be irrelevant and should not be inquired of. In the event counsel wishes to ask a witness a question regarding race, the United States respectfully submits that a proffer should be required.
 Even if there were any probative value in such arguments, that value would be substantially outweighed by their potential for unfair prejudice and likelihood of misleading the jury. See Fed. R. Evid. 403.
 Claims of outrageous government conduct and selective prosecution are issues of law to be decided by the court. United States v. Washington, 705 F.2d 489, 495 (D.C. Cir. 1983) (outrageous government conduct claims and selective prosecution claims are legal issues for the court and not to be presented to the jury); see also United States v. Mosley, 965 F.2d 906, 909 & n.3 (10th Cir. 1992) (claim of outrageous government conduct, which focuses on governments behavior rather than that of the defendant, may be presented to the court as a motion to dismiss; it is not an affirmative defense to be presented to the jury).
 As defense counsel stated during opening statements, there is no dispute that defendant received the tickets alleged in the indictment; rather, the key issue for the jury to decide is Did Mike Espy believe he was doing anything wrong? 10/1/98 Trial Tr. at 125-126.
 A proposed instruction is attached as Exhibit B.