United States Court of Appeals,
UNITED STATES of
BLACKLEY, Sr., Appellant.
Argued Oct. 19,
Before: WILLIAMS, GINSBURG and ROGERS, Circuit Judges.
Opinion for the Court filed by Circuit Judge STEPHEN F. WILLIAMS.
STEPHEN F. WILLIAMS, Circuit Judge:
Ronald Blackley, one time Chief of Staff to Secretary of Agriculture Michael Espy, was
convicted of three counts of making false statements relating to over $22,000 that he
received from individuals regulated by the Department of Agriculture. Blackley was
investigated and prosecuted by the Office of Independent Counsel appointed to investigate
allegations of gratuities received by Secretary Espy. On appeal, Blackley's principal
claim is that the crimes charged lie outside the Independent Counsel's jurisdiction.
Rejecting that and Blackley's other contentions, we affirm.
* * *
On August 8, 1994 the Attorney General applied under 28 U.S.C. s 592(c)(1) to the
special division of the United States Court of Appeals for the District of Columbia for
the purpose of appointing independent counsels, see 28 U.S.C. s 49 (the "Special
Division"), seeking appointment of an independent counsel "to investigate
whether any violations of federal crimes were committed by Secretary Espy, and to
determine whether prosecution is warranted." thE speciaL division'S september 9, 1994
order (the "original order") appointed Donald C. Smaltz as Independent Counsel,
with the authority and jurisdiction to:
[I]nvestigate to the maximum extent authorized by the Independent Counsel
Reauthorization Act of 1994 whether [Secretary Espy] has committed a violation of any
federal criminal law ... relating in any way to the acceptance of gifts by him from
organizations or individuals with business pending before the Department of Agriculture.
September 9, 1994 Order of Special Division at 1. The original order also gave the
Independent Counsel jurisdiction over crimes "connected with" this core
jurisdiction. We save for later the precise wording of these additional grants.
The Independent Counsel later applied to the Special Division asking for a further
"referral" under 28 U.S.C. s 594(e). [FN1] On April 1, 1996, over the objection
of the Attorney General, the Special Division approved the application and issued an order
stating that the Independent Counsel had jurisdiction to:
FN1. 28 U.S.C.
s 594(e) states that "[a]n independent counsel may ask the Attorney General or the
[Special Division] to refer to the independent counsel matters related to the independent
counsel's prosecutorial jurisdiction, and the Attorney General or the [Special Division],
may refer such matters."
[I]nvestigate and prosecute any violation of any federal law ... related to any
application, appeal, or request for subsidy made to or considered by the United States
Department of Agriculture, for which Secretary of Agriculture Alphonso Michael (Mike) Espy
and/or his Chief of Staff Ronald Blackley intervened in the application, approval, or
April 1, 1996 Order of Special Division. In doing so, the Special Division said that
it was "interpreting, but not expanding, the independent counsel's original
prosecutorial jurisdiction." In re Espy, 80 F.3d 501, 507 (D.C.Cir.1996). It found
that "the new matter is demonstrably related to the factual circumstances underlying
the Attorney General's original investigation and request for appointment of an
independent counsel." Id. at 508.
On April 22, 1997 the Independent Counsel secured an indictment of Blackley on three
counts of making false statements in violation of 18 U.S.C. s 1001. The indictment alleged
that Blackley, while serving as Chief of Staff at the U.S. Department of Agriculture,
received more than $22,000 from individuals regulated by the Department, and then lied
about it on three separate occasions: once on his Executive Branch Public Financial
Disclosure Form, SF 278, and then twice in sworn statements to the inspectors general of
the Department and the United States Agency for International Development
("USAID"). In the sworn statement to the Department of Agriculture inspector
general Blackley said,
At the time I became chief of staff for Secretary Espy ..., I severed myself from all
of my prior businesses and financial interests. I no longer had any active connection with
[various named companies] or any other company or business interest in Mississippi or
elsewhere. I received absolutely no money or remuneration of any kind from any of these
companies for work performed in 1993 after I became chief of staff.... The only income I
have earned during the period during the period from January 21, 1993 to the present date,
with the exception of the sale of my former residence in Greenville, is my salary from
And in a sworn statement before the USAID, he said, "After I ended my consulting
business and entered U.S. Government service, I did not receive any remuneration of any
kind from [a named client] or anyone else."
A jury found Blackley guilty on all three counts, and the district court sentenced him
to 27 months imprisonment and three years of supervised release.
* * *
of the Independent Counsel [FN2]
inpart appears to cloak his challenge to the jurisdiction granted by the original order in
an attack on the Special Division's April 1, 1996 referral, as he did before the trial
court (see "Motion to Dismiss Indictment" at 10-11). But as the district court
appears to have read the challenge as going at least in part to the scope of the original
order, see United States v. Blackley, 986 F.Supp. 607, 610 (D.D.C.1997), we regard the
relation between the indictment and the original order as properly before us.
 Defendant's first jurisdictional claim rests solely on the fact that the text of
the indictment fails to lay out the trail connecting the original grant of jurisdiction to
the charged violations. As Rule 7(c) (1) of the Federal Rules of Criminal Procedure
specifies that an indictment must contain "a plain, concise and definite written
statement of the essential facts constituting the offense charged," we can imagine an
argument that language setting out the connective trail would be offensive surplusage,
which the court might strike under Rule 7(d). But the reverse--that such language is
required--seems without foundation. Defendant cites no case, rule or statute supporting
the claim, and points to no inconvenience that the omission presents for him. In a case
where the connection between the relevant referral or referrals and the facts set forth in
the indictment or developed at trial was unclear, presumably the defendant could secure
dismissal of the indictment if the independent counsel failed, on motion to dismiss for
want of jurisdiction, to make a record of the necessary connective links. Cf.
Fed.R.Crim.P. 16(a)(2) (limiting required disclosure of prosecutor's investigative
materials in ordinary case). But that possibility is no basis for cluttering up the
More substantively, Blackley argues that the indictment is not within the jurisdiction
granted in the Special Division's original order. The Independent Counsel evidently
regards that as the proper jurisdictional question; he makes no claim that the April 1996
referral expanded his jurisdiction. This view, seemingly shared by both parties, tracks
the position of the Special Division itself, which, as we noted, said in making the April
1996 referral that it was "interpreting, but not expanding, the independent counsel's
original prosecutorial jurisdiction, ... mak[ing] explicit the independent counsel's
jurisdiction over a matter that was implicitly included in the original grant." In re
Espy, 80 F.3d at 507. Nor does the Independent Counsel make the argument, which we
consider in United States v. Hubbell, 167 F.3d 552, 557-60 (D.C.Cir.1999) released today,
that the Special Division's interpretation of the original order, set forth in the later
referral, is entitled to deference. Accordingly, we review de novo the relationship
between the indictment and the jurisdictional grant of the original order. [FN3]
FN3. As the
Independent Counsel only marginally invokes the April 1996 referral as support for his
jurisdiction over the crimes charged in the indictment, and we in no way rely on it in
upholding the indictment as within the Independent Counsel's jurisdiction, Blackley's
contention that the district court wrongly failed to review that referral itself appears
In analyzing the relation between the offenses charged here and the language of the
original order (including both its statement of the core offenses and the various
ancillary clauses), Blackley frequently invokes a phrase used by the Supreme Court in
Morrison v. Olson, 487 U.S. 654, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988),
"demonstrably related." We are not at all sure that the adverb
"demonstrably" adds much to the concept of relatedness, other than perhaps to
say that if the relation depends on some facts, then the facts may be litigated. Whatever
its force, however, the phrase was not used by the Court in relation to the present issue
at all. The Court used it solely in connection with the anterior issue of the relation
between the Attorney General's initial investigation and presentation to the Special
Division, on the one hand, and that Division's original grant of authority to an
independent counsel, on the other. In resisting a constitutional attack on the vesting of
power in the Special Division, the Court observed:
In order for the Division's definition of the counsel's jurisdiction to be truly
"incidental" to its power to appoint, the jurisdiction that the court decides
upon must be demonstrably related to the factual circumstances that gave rise to the
Attorney General's investigation and request for the appointment of the independent
counsel in the particular case.
Id. at 679, 108 S.Ct. 2597. Here, of course, the defendant is not challenging the
constitutionality of the Special Division's grant of jurisdiction, but the fit of the
present prosecution within that grant. Cf. United States v. Tucker, 78 F.3d 1313, 1321
(8th Cir.1996) (holding that the "demonstrably related" language did not govern
the Independent Counsel's jurisdiction under a referral).
 As we mentioned above, a number of clauses of the original order explicitly
authorize the Independent Counsel to go beyond crimes possibly committed by Secretary Espy
in accepting gifts from persons with matters pending before the Department. Besides power
to look into those, the order gave the Independent Counsel jurisdiction to:
 ... investigate other allegations or evidence of violation of any federal criminal
law ... by any organization or individual developed during the Independent Counsel's
investigation referred to above and connected with or arising out of that investigation.
 ... investigate any violation of 28 U.S.C. s 1826, or any obstruction of the due
administration of justice, or any material false testimony or statement in violation of
federal criminal law, in connection with any investigation of the matters described above.
 ... seek indictments and to prosecute any organizations or individuals involved in
any of the matters described above, who are reasonably believed to have committed a
violation of any federal criminal law arising out of such matters, including organizations
or individuals who have engaged in an unlawful conspiracy or who have aided or abetted any
 ... fully investigate and prosecute the subject matter with respect to which the
Attorney General requested the appointment of independent counsel, as hereinbefore set
forth, and all matters and individuals whose acts may be related to that subject matter,
inclusive of authority to investigate and prosecute federal crimes ... that may arise out
of the above described matter, including perjury, obstruction of justice, obstruction of
evidence, and intimidation of witnesses.
September 9, 1994 Order of Special Division at 2, 3.
It is not claimed that any of the order's language is inconsistent with the Special
Division's statutory authority. Nor do we think it could be claimed. Section 593(b)(3)
states that the Division is to define the counsel's jurisdiction in a way that "shall
assure that the independent counsel has adequate authority to fully investigate and
prosecute the subject matter with respect to which the Attorney General has requested the
appointment of the independent counsel, and all matters related to that subject
matter." 28 U.S.C. s 593(b)(3) (emphasis added). Further, the jurisdiction
"shall also include the authority to investigate and prosecute Federal crimes ...
that may arise out of the investigation or prosecution of the matter with respect to which
the Attorney General's request was made, including perjury, obstruction of justice,
destruction of evidence, and intimidation of witnesses." Id. (emphasis added). The
second clause appears to make clear that the Independent Counsel's jurisdiction is to
encompass criminal activity concealing, or otherwise thwarting the Independent Counsel's
investigation or prosecution of, crimes that satisfy the first "related to"
clause. In the Division's order here, ancillary clauses  and  appear to track the
first of the provisions in s 593(b)(3), while that of ancillary clauses  and  appear
to implement the second.
Blackley proposes an interpretation of the order's jurisdictional scope that would
allow little or no discernible weight to any of the ancillary language, except for that
relating to crimes arising out of the investigation or prosecution itself, such as perjury
or obstruction of justice. With that exception, he evidently reads the language as
limiting the Independent Counsel to possible crimes committed in Espy's own acceptance of
This clearly cannot be. The word "relation" comprises more than identical
twins. And just as a person is "related" not only to his parents and children,
but to grandchildren and grandparents, the fact that a crime is in some sense a verbal
step or two away from the core crime cannot alone render it unrelated. As we have said,
the "central purpose of the special prosecutor provisions of the [Ethics in
Government Act] is to permit the effective investigation and prosecution of high level
government and campaign officials." United States v. Wilson, 26 F.3d 142, 148
(D.C.Cir.1994) (emphasis added). Discussing the "related to" language of s
593(b)(3), we noted that "the scope of a special prosecutor's investigatory
jurisdiction can be both wide in perimeter and fuzzy at the borders." Id.
Thus, the jurisdiction to look into matters "related to" the core areas of
initial inquiry must allow the Independent Counsel enough leeway to investigate and
prosecute such matters as are appropriate for him to effectively carry out his mandate. We
think such effectiveness can be secured only if the Independent Counsel is at least able
to pursue crimes by the original target's close associates in the field of activity under
investigation, including crimes that either are of the same sort as the originally
specified set of crimes or are ancillary to the commission or concealment of such crimes.
Whether an independent counsel has any further scope we need not decide here; obviously
his jurisdiction is limited, but this case is squarely within the limits.
The position description for Blackley as Chief of Staff to Secretary Espy
characterized him as the Secretary's "alter ego,"; and he played that role in
the very activity--running the Department--in which Espy's alleged offenses were
committed. His alleged non-disclosures were of sums received from parties doing business
with the Department, thus paralleling the Espy allegations. Furthermore, concealment of
such receipts, especially in the context of a financial disclosure form intended to bring
suspicious influences to the surface and in response to questions of inspectors general,
tends not only to prevent discovery of underlying crimes such as receipts of bribes or
gratuities, but also to reflect the perpetrator's consciousness of guilt in those
The proximity of the relation here is underscored by Department of Justice policy (the
subject of a separate challenge by Blackley). Justice allows its attorneys to use
prosecutions under s 1001 as a vehicle for pursuing public corruption crimes:
[U]nderlying misconduct is frequently the reason for the defendant's indictment [for
false statements] with section 1001 merely being the vehicle for prosecution because of
proof problems with more obviously applicable statutes ... False information on financial
disclosure forms frequently masks such underlying offenses as receipt of bribes or
gratuities, or conflicts of interest. When prosecution for those offenses is not
practicable, section 1001 is an alternative.
9A DOJ Manual at 9-1938.122-23 (Supp.1988) (emphasis added). This confirms us in
finding that the relation between Blackley's s 1001 violations and the core charges set
out in the original order is tight enough to meet the "related to" criterion of
s 593(b)(3) and the order itself.
Included among Blackley's jurisdictional attacks is his claim that the Independent
Counsel violated s 594(f)(1) of the Ethics in Government Act, which provides that an
independent counsel "shall, except to the extent that to do so would be inconsistent
with the purposes of this chapter, comply with the written or other established policies
of the Department of Justice respecting enforcement of the criminal laws." He claims
that here the Independent Counsel violated DOJ policy guidelines, which provide that DOJ
attorneys should not prosecute an Ethics in Government Act case under s 1001 "unless
the nondisclosure conceals significant underlying wrongdoing." 9A DOJ Manual at
9-1938.123 (1988). Detecting a transgression of the Manual, Blackley argues that it
somehow undermines the prosecutorial jurisdiction of the Independent Counsel.
 We think Blackley has missed the real defect here--the lack of any cause of
action or remedies for defendants like him under the Manual or s 594(f)(1). The Manual
itself says that it "is not intended to confer any rights, privileges or benefits on
prospective or actual witnesses or defendants. It is also not intended to have the force
of law or of a United States Department of Justice directive." 9A DOJ Manual at
9-1938.3. As defendant implicitly acknowledges, violations of Manual policies by DOJ
attorneys or other federal prosecutors afford a defendant no enforceable rights. See,
e.g., United States v. Kember, 648 F.2d 1354, 1370 (D.C.Cir.1980); United States v.
Craveiro, 907 F.2d 260, 263-64 (1st Cir.1990).
Blackley argues, however, that here the DOJ policy is backed by a statute. While that
is true in a sense, it misses the point. In the interest of having the target of an
Independent Counsel's prosecution treated no worse than an ordinary defendant, s 594(f)(1)
subjects the Independent Counsel to the same guidelines. See S.Rep. No. 97-496 (1982),
quoted at H. Rep. No. 103-224, 103rd Cong., 1st Sess. 1993, 1993 WL 302057 at *20 (special
prosecutor should act so as to assure that "treatment of officials is equal to that
given to ordinary citizens under similar circumstances"). Thus if the Manual
explicitly states that it confers no substantive rights on the defendant, the parallelism
sought to be achieved by s 594(f)(1) suggests that the defendant here should also be
unable to escape conviction by claiming a violation of the policy.
Further, the legislative history suggests that Congress intended that the consequence
of a failure to follow these policies would be for the Independent Counsel to explain his
decision, not for the guilty defendant to be set free:
In determining whether it is possible to comply with these policies, the [Independent
Counsel] should be guided by his perception of fundamental fairness and of what is
required to conduct the investigation conscientiously.... If he does deviate from
established practices of the Department, the [Independent Counsel] should thoroughly
explain his reasons for doing so in his report to the court at the conclusion of his
S.Rep. No. 97-496 (1982), quoted at H. Rep. No. 103-224, 103d Cong., 1st Sess. 1993,
1993 WL 302057, at *20. Regardless of the possibility of other remedies under s 594(f)(1),
as to which we express no opinion, nothing in the language of the provision or the
structure of the Ethics in Government Act suggests that the defendant should be able to
escape a sanction otherwise due.
B. The Sufficiency of the Indictment
Blackley says the indictment didn't adequately notify him of the nature of the charges
against him. In particular, he argues that count one, which charged him with failure to
disclose on his SF 278 for the year 1993 some $22,025 received that year, simply
enumerated the 11 checks through which the money was received (with their dates and
amounts), plus all four categories on the form ("Assets and Income,"
"Gifts, Reimbursement and Travel Expenses," "Liabilities," and
"Agreements or Arrangements"). Thus it did not connect any of the checks to a
specific box on the form. Blackley makes a similar argument as to the other counts, saying
that the indictment left him uncertain as to exactly which of his various denials was
contradicted by his receipt of the $22,025.
 Blackley cites United States v. Nance, 533 F.2d 699 (D.C.Cir.1976). There the
defective counts of the indictment accused the defendant of falsely making the
"following representations," but (amazingly) the representations did not follow;
none was alleged. Id. at 700 n. 3. The present indictment plainly says that Blackley in
his SF 278 falsely failed to disclose specified items of income. Nance gets Blackley
 But is it a fatal defect for an indictment to charge a failure to disclose and to
assert four categories in the conjunctive, rather than specifying which box each check
belonged in? Where the indictment alleges only one offense, it is proper to charge the
different means for committing that offense in the conjunctive. See Joyce v. United
States, 454 F.2d 971, 976 (D.C.Cir.1971); United States v. UCO Oil Co., 546 F.2d 833, 838
(9th Cir.1976); Fed.R.Crim.P. 7(c)(1) (indictment may allege that defendant committed
offense "by one or more specified means"). In this case, the categories on the
form simply enumerate the various ways the defendant could violate the disclosure
requirements of the SF 278 form, and proof of any one of those allegations could sustain a
conviction. See UCO Oil Co., 546 F.2d at 838. And the proceeding on any count "will
bar further prosecution on all matters alleged therein." Joyce, 454 F.2d at 977
(emphasis added). So the charging in the conjunctive here was proper and satisfies the two
requirements for an indictment set out in Russell v. United States, 369 U.S. 749, 82 S.Ct.
1038, 8 L.Ed.2d 240 (1962)--telling the defendant what "he must be prepared to
meet" and showing to what extent he might in any future proceeding plead former
acquittal or conviction. Id. at 763-64, 82 S.Ct. 1038.
 Blackley also argues that none of the counts pleaded any duty to disclose the
$22,025. But in counts two and three the indictment spells out what can only be regarded
as affirmative misstatements; and in count one the indictment obviously supplied the duty
to disclose by spelling out the reporting requirements of SF-278 and explicitly stating
that the defendant was required by law to respond truthfully to these requirements.
C. Adequacy of Jury Instructions
18 U.S.C. s 1001 criminalizes certain concealments from, or misrepresentations to, the
government. The judge charged the first element in the following terms, the substance of
which defendant does not dispute:
The first element that you must find beyond a reasonable doubt is falsification or
concealment. To find the defendant guilty of violating this statute, you must find that
for each count charged in the indictment, the defendant either:
a. falsified, concealed, or covered up by a trick, scheme, or device a fact; or
b. made a false, fictitious or fraudulent statement or representation; or
c. made or used a false writing or document containing a false, fictitious, or
fraudulent statement or representation.
You may find that the defendant performed more than one of these acts through a single
course of action.
Blackley objects that this was error, because in its unanimity instruction the court
failed to advise the jury that it had to find unanimously that each statement of the
defendant violated a specific form of falsification, leaving it possible that jurors
rested their verdict on different forms. The argument simply ignores the language of the
charge. Immediately after the passage quoted, the judge said:
However, to render a guilty verdict, you must unanimously agree on at least one of
these three acts.
 Under any reasonable reading of this instruction, the jury would understand that
it must agree unanimously on which of the three the defendant violated.
 The defendant's second argument, overlapping with his first, is that the district
court erred in refusing to give the jury an instruction that to find the defendant guilty
of concealment under s 1001, it must find that Blackley's failure to report the various
checks he received violated a legal duty. Blackley contends that the legal duty to
disclose is an element of the concealment prong of s 1001 that the government must prove
to the jury. It is true that every element of a crime of which a defendant is charged
should ordinarily be submitted to a jury. United States v. Gaudin, 515 U.S. 506, 115 S.Ct.
2310, 132 L.Ed.2d 444 (1995). It is also true that some circuits have held that the
government must generally prove that a defendant has a legal duty to disclose before it
can convict for concealment under s 1001. See, e.g., United States v. Irwin, 654 F.2d 671,
678-79 (10th Cir.1981). But it is uncertain, since Gaudin, whether this judicially created
requirement is an element of the crime to be presented to the jury or a purely legal
determination to be decided by the court. Cf. United States v. Zalman, 870 F.2d 1047, 1055
(6th Cir.1989) (pre-Gaudin case holding duty to disclose under s 1001 is a matter of law
for the judge and not the jury). At least one post-Gaudin case has held that materiality
itself, in certain criminal contexts such as tax crimes, is a purely legal question that
is not to be submitted to the jury. See United States v. Klausner, 80 F.3d 55, 61 (2d
Cir.1996) (distinguishing materiality in Gaudin as a mixed law and fact issue).
 Assuming the duty to disclose is an element of concealment to be charged to
the jury under s 1001, the district court's refusal to use Blackley's proposed charge
would still not be reversible. Under circuit law, the absence of a jury instruction on an
element of the crime is not reversible error where it is inconceivable that the jury could
have found the defendant guilty of the crime without making a finding as to the omitted
element. See United States v. Winstead, 74 F.3d 1313, 1321 (D.C.Cir.1996); see also United
States v. Parmelee, 42 F.3d 387, 393 (7th Cir.1994) (holding that instructional error on
missing element is harmless if " no rational jury could have found the defendant[ ]
guilty of violating [the statute] without also making the proper finding as to the missing
element"); Redding v. Benson, 739 F.2d 1360, 1363-64 (8th Cir.1984). Here, Blackley
argued to the jury various forms of conceivable confusion in the SF 278 and in the
statements to the inspectors general that might make his falsifications non-willful,
arguments that, given the judge's instruction that the jury must acquit Blackley if they
found that he had acted in good faith, the jury had to reject to find him guilty. The
judge also instructed the jury on Blackley's defense theory that he did not believe he was
obliged to disclose the information he allegedly concealed, instructions that clearly
placed before the jury the question of whether Blackley had a legal duty to disclose the
11 checks on his SF-278. Thus, even if there was error in not submitting the
duty-to-disclose instruction to the jury, it is unimaginable that the jury could have
found Blackley guilty of concealment in count one without first finding a duty to
Although the misrepresentations in counts two and three are the plainest kind of
free-standing, affirmative misstatements, the district court's instructions nominally
allowed the jury to convict under the concealment theory of s 1001, though without mention
of a need to find a duty to disclose. But given the explicit and affirmative character of
the misrepresentation, and the absence of any reliance by the prosecutor on questions
posed by the Inspectors General (i.e., a claim that it was the nature of any such question
that made Blackley's statements into concealments), the only way "concealment"
could have come into the jury's deliberations on those counts would have been as a
convoluted version of affirmative misrepresentation. For example, when someone swears that
"the only money [he has] earned from January 21, 1993 to the present date [with an
irrelevant exception] is [his] salary from the USDA," he is implicitly concealing any
other earnings. Thus, no rational jury could have concluded that Blackley was guilty under
counts two or three without simultaneously finding that he made affirmatively false
D. The Departure from the Sentencing Guidelines
 Finally Blackley objects to his sentence of 27 months, arguing that the district
court made an upward departure on invalid grounds. The court found that Blackley should be
sentenced under the fraud guideline, s 2F1.1 of the United States Sentencing Guidelines,
which carries a base level of six. It also found that the specific offense characteristic
of "more than minimal planning" applied, and increased Blackley's offense level
by two, for a total of eight. It then made an eight-level upward departure, relying on a
mix of factors that it believed were not considered by the guidelines in this context.
These included the facts that (1) the defendant was a high-level official when he received
monies from individuals regulated by the Department; (2) he was informed that he was not
allowed to receive such payments; and (3) he twice lied under oath about their receipt.
As Blackley concedes, the fraud guidelines make no explicit provision for an
adjustment for offenses committed by public officials. But he insists that the explicit
provision for such an adjustment in connection with crimes involving the receipt of
gratuity or the deprivation of the right to honest services implies a rejection of any
comparable adjustment for fraud. U.S.S.G. ss 2C1.2, 2C1.7. We think the inference quite
weak, however. First, the fraud guidelines explicitly contemplate upward departures in
circumstances that fall outside the main core. See U.S.S.G. s 2F1.1, Application Notes 10,
13. And in their more general treatment of departures the guidelines note the
impossibility of covering all bases:
Circumstances that may warrant departure from the guidelines pursuant to this
provision cannot, by their very nature, be comprehensively listed and analyzed in advance.
U.S.S.G. s 5K2.0. Further, the Sentencing Commission's focus on high status in the
government is understandable for offenses where its occurrence, though far from
invariable, is salient. As high-level official status does not seem especially salient in
fraud generally, the Commission's failing to treat it explicitly in that context implies
little. See Shook v. District of Columbia Fin. Responsibility and Management Assistance
Auth., 132 F.3d 775, 782 (D.C.Cir.1998) (observing that the force of the expressio unius
inference depends entirely on context). The case is thus radically different from United
States v. Sun-Diamond Growers, 138 F.3d 961 (D.C.Cir.1998), in which we overturned an
upward departure based on the high rank of the official who received a gratuity, the
Secretary of Agriculture, on the ground that the Guidelines themselves, s 2C1.2, had
covered precisely that. We found no material difference in rank or sensitivity between the
Secretary and various officials explicitly enumerated in the associated Application Note
as instances covered by the explicit provision for departure. Id. at 976.
 Although at first blush the number of levels seems high, the departure made
Blackley's sentence more closely approximate what would follow for kindred crimes
committed by high government officials under provisions such as s 2C1.2 itself. We find
the departure well within the broad discretion allowed the district court in such matters.
See Koon v. United States, 518 U.S. 81, 98, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996).
* * *
Defendant also claims a violation of Rule 404(b) of the Federal Rules of Evidence, but
the claim is too weak to merit discussion. And he argues the sufficiency of the evidence.
On that issue he devotes his brief almost entirely to evidence that, if believed and given
great weight, might have enabled a jury reasonably to acquit. Perhaps so. But the possible
reasonableness of acquittal is not, of course, the test--it is whether a jury could
reasonably convict, as here it could.
The defendant's conviction and sentence are confirmed.