UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

  

UNITED STATES OF AMERICA

v.

JACK L. WILLIAMS and

ARCHIBALD R. SCHAFFER, III,
Defendants.

 

 

GOVERNMENT’S OMNIBUS OPPOSITION TO DEFENDANTS’

 MOTIONS TO DISMISS AND MOTION FOR DISCLOSURE

OF GRAND JURY INSTRUCTIONS

 

I.

INTRODUCTION

 

                On September 17, 1996, a federal grand jury returned a two-count indictment against defendant Jack L. Williams charging him with false statements. Trial of that matter commenced on March 17, 1997 and a jury found defendant Williams guilty on both counts.  Following the granting of defendant’s motion for a new trial, a superseding indictment was returned on September 30, 1997 charging Williams with two additional counts of violating the Meat Inspection Act (21 U.S.C. § 622) as well as the two counts of making false statements to federal agents (18 U.S.C. § 1001). 

                On January 15, 1998, the grand jury returned a fifteen-count superseding indictment.  This indictment added defendant Archibald R. Schaffer, III, and alleged multiple violations of federal law. These counts are summarized in Section III of this Opposition.

                On March 18, 1998, defendants Williams and Schaffer filed eleven motions and memoranda in support thereof, ten of which seek an order from this Court dismissing portions of the second superseding indictment, pursuant to Fed. R. Crim. P. 12(6), and one motion, under Fed. R. Crim. P. 6(e)(3)(C)(ii), seeking disclosure of the grand jury instructions as they related to the gratuities counts.  In certain instances, defendants have also requested an oral hearing on specified motions, pursuant to Local Rule 108(f).  For the reasons set forth below, all of defendants’ motions should be denied without a hearing.

II.

FACTUAL BACKGROUND

                During the period 1993-94, defendant served as Vice President in charge of Media, Public and Governmental Affairs of Tyson Foods, Inc. (“Tyson Foods” or “TFI”).  (Indictment ¶ 2(c)).  Tyson Foods is a multi-billion dollar company which produces and markets, among other things, poultry and red meat products nationally and internationally.  (Id. ¶ 2).  Defendant Schaffer’s responsibilities included, among other things, supervision of the company’s lobbying activities.  (Id.).  Defendant Jack L. Williams is a lobbyist who represented the interests of Tyson Foods before various governmental agencies including the United States Department of Agriculture (“USDA”).  (Id. ¶ 2(d)(i)).  In regard to his lobbying activities, defendant Williams primarily reported to defendant Schaffer.  (Id. ¶ 2(d)(2)).  Tyson Foods did business with, had matters pending before, and conducted activities regulated by the U.S. Department of Agriculture.  (Id. ¶ 3).  As representatives of Tyson Foods, defendants, along with Tyson Foods, were prohibited sources under the Meat Inspection Act.  (Id. ¶ 12).  During his tenure as a lobbyist for Tyson Foods defendant Williams, in conjunction with defendant Schaffer, and on behalf of Tyson Foods, provided things of value to officials at USDA and to the girlfriend of the Secretary of Agriculture including (1) tickets to the Presidential Inaugural Dinner, (2) travel, accommodations and amenities related to the Tyson birthday party weekend in Russellville, Arkansas for the Secretary and his girlfriend, (3) a scholarship to the Secretary’s girlfriend, (4) tickets to an NFL playoff game for the Secretary and his girlfriend (along with other items which included her airline ticket to attend the game), and (5) a ticket to a University of Arkansas basketball game and an airline ticket upgrade to first class for the Acting Assistant Secretary of Marketing and Inspection Services, USDA.  (Id. ¶ 17).

                Subsequent to publication of an article in the Wall Street Journal on March 17, 1994 which alleged that Tyson Foods had provided gifts to the Secretary and Acting Assistant Secretary of Agriculture, the Office of Inspector General, USDA (“OIG”) opened an investigation into the now public allegations.  (Id. ¶ 35).  The following month the Federal Bureau of Investigation (“FBI”) also opened an investigation.^[1]  (Id. ¶ 39).  During the course of these two inquiries, defendant Williams made false statements to OIG and FBI special agents.  In addition, the conspiracy charge alleges that defendant Schaffer made false statements to FBI special agents.  (Id. ¶ 22).

III.

THE INDICTMENT

                The indictment alleges straightforward charges and squarely informs defendants of the nature of the allegations against them.  The information contained in the indictment sufficiently puts them on notice to adequately be prepared to defend at trial.  Count One alleges that defendants, in combination with unindicted co-conspirators, knowingly conspired to defraud the United States and its citizens of the honest services of Secretary of Agriculture Alphonso Michael Espy (“Secretary of Agriculture Espy” or “the Secretary”), and to commit substantive violations of the gratuity, meat inspection and false statement provisions of the United States Code.  (Id. ¶ 19).

                Count Two charges defendant Schaffer with devising a scheme to defraud the United States of the honest services of Secretary of Agriculture Espy by which he knowingly caused to be delivered to the Secretary, via the United States Postal Service, an invitation dated April 26, 1993 from the Arkansas Poultry Federation soliciting the Secretary’s attendance to an event scheduled for May 15, 1993 (Id. ¶27).  This event coincided with a party hosted by Tyson Foods, Inc. (Id.).

                Counts Three through Six allege that defendants, in furtherance of a scheme to defraud the United States of the honest services of the Secretary, transmitted or caused to be transmitted by means of wire communications through interstate commerce (i) a telefax letter transmitted by defendant Schaffer in Springdale, Arkansas, on April 27, 1993, inviting the Secretary to attend the Arkansas Poultry Federation event on May 15, 1993; (ii) a telefax communication from defendant Schaffer to the Secretary forwarding travel and lodging information related to the Tyson birthday party weekend on May 15-16, 1993; (iii) a telefax communication from Tyson Foods in Springdale, Arkansas to defendant Williams forwarding a blank scholarship application for the Secretary’s girlfriend; and (iv) a telephone communication between defendant Williams and Don Tyson’s personal secretary regarding travel and lodging arrangements for the Secretary and his girlfriend’s attendance at the Dallas Cowboys/Green Bay Packers playoff game on January 16, 1994.  (Id. ¶ 29).

                Counts Seven through Nine aver that defendants, on behalf of Tyson Foods, gave, paid and offered to USDA officials things of value which included the amenities relating to the Tyson birthday party weekend, the weekend football trip to Texas for the Dallas Cowboys/Green Bay Packers playoff game, and a skybox seat at the University of Arkansas/Vanderbilt basketball game and first class upgrade of an airline ticket, totaling $5,018, with the intent to influence USDA officials in the performance of their duties under the Meat Inspection Act. (Id. ¶ 31).

                As for Counts Ten through Thirteen, the indictment alleges that on or about the period covering January 1993 and February 1994, defendants knowingly gave, offered and promised things of value to public officials of USDA, for or because of official acts performed or to be performed by the aforementioned public officials, totaling approximately $11,018.  These things of value included (i) four seats at the Presidential Inaugural Dinner on January 18, 1993; (ii) travel provisions and other amenities related to the Tyson birthday party weekend on May 15-16, 1993; (iii) travel, lodging and other amenities related to the Dallas Cowboys/Green Bay Packers playoff game weekend; and (iv) skybox seat at the University of Arkansas/Vanderbilt college basketball game and first class upgrade of airline ticket.  (Id. ¶ 33).

                Count Fourteen of the indictment alleges that during an interview on March 22, 1994, defendant Williams made a false statement to Office of Inspector General - USDA agents.  Williams stated that he had heard only through rumor and news that Secretary of Agriculture Espy was a guest of Tyson Foods, Inc. at the January 16, 1994 Dallas Cowboys football game and did not know if the Secretary actually was a guest at such a game.  (Id. ¶ 37).  The indictment avers that the statement was false because:

the defendant[,] well knew[,] (i) he paid for the airline tickets of the Secretary’s girlfriend so that she could attend the football game together with the Secretary of Agriculture as guests of Don Tyson and Tyson Foods in their corporate skybox at Texas Stadium and (ii) he discussed with Don Tyson’s personal secretary, on or about January 10, 1994, arrangements for Secretary Espy and his girlfriend to attend the Dallas Cowboys playoff game.

 

Id.

                Count Fifteen avers that defendant Williams made a false statement to special agents of the Federal Bureau of Investigation in an interview conducted on June 9, 1994 when he said that:

he did not remember talking to the girlfriend of Secretary of Agriculture Michael Espy on the telephone at any time and certainly not to make travel or other arrangements for her or Secretary Espy involving Tyson Foods or any other client, (ii) he did not have her telephone number, (iii) he did not know where she was employed, and (iv) he had no prior knowledge of Secretary Espy’s social/travel plans, including the Secretary’s attendance at the Dallas Cowboys/Green Bay Packers football game on January 16, 1994.

 

(Id. ¶ 42).  The indictment asserts that this statement was false because:

the defendant[,] well knew[,] (i) on or about December 10, 1993, he sent by facsimile transmission a blank application for scholarship money from the Tyson Foundation to the Secretary’s girlfriend at her place of employment, (ii) on or about January 10, 1994, defendant [Williams] had a telephone conversation with Don Tyson’s personal secretary concerning arrangements for Secretary Espy and his girlfriend to attend the Dallas Cowboys playoff game, (iii) on or about January 11, 1994, he placed a call to the Secretary’s girlfriend at her place of employment, (iv) on or about January 12, 1994, he caused Bell Travel to charge airfare on American Airlines in the amount of approximately $1,009 to his personal VISA account and to issue round trip airline tickets in the name of the Secretary’s girlfriend, (v) on or about January 13, 1994, [defendant] Williams caused his limousine service driver to deliver airline tickets to the Secretary’s girlfriend personally at her place of employment, and (vi) on or about January 15-16, 1994, the Secretary’s girlfriend used the airline tickets provided by Williams to attend the Dallas Cowboys playoff game with Secretary Espy as guests of Don Tyson and Tyson Foods.

 

(Id.)

 

IV.

 

DISCUSSION

 

A.            DEFENDANT WILLIAMS’  MOTION TO DISMISS THE FALSE STATEMENTS COUNTS FOR FAILURE TO STATE AN OFFENSE HAS PREVIOUSLY BEEN REJECTED BY THIS COURT AND IS, IN ANY EVENT, WITHOUT MERIT

 

                Defendant Williams, pursuant to Fed. R. Crim. P. 12(b), moves for dismissal of Counts Fourteen, Fifteen, and the portion of Count One which relates to the false statements charged for failure to state an offense, arguing that 1) the statement made to agents of the Office of Inspector General (“OIG”), USDA, on March 22, 1994 were literally true and immaterial; and 2) prior to commencement of the June 9, 1994 interview, agents of the Federal Bureau of Investigation (“FBI”) failed to protect defendant’s due process rights by informing him that any false statement would subject him to criminal liability.  Defendant’s motion should be denied for the reasons set forth below.

                1.             Defendant’s Arguments That The False Statement Charged In Count Fourteen, And A Portion Of Count One, Was Literally True And Immaterial Are Issues To Be Resolved By A Jury

 

                Defendant argues that the false statement made to the OIG agents in the March 22, 1994 interview, charged in Count Fourteen, and a portion of Count One of the Second Superseding Indictment, was “literally true and was not material; therefore cannot form the basis for a prosecution under 18 U.S.C. § 1001,” (Defendant Williams’ Motion and Memorandum in Support of Motion to Dismiss the False Statement Counts of the Second Superseding Indictment for Failure to State an Offense (“Def’s. Mem.”) at 1), and that the statement made “was not capable of impairing or impeding the functions of the OIG.” (Def’s. Mem. at 9.)  This argument has been raised previously by defendant in his numerous pretrial and post-trial motions during the course of the first Williams proceeding, rejected by this Court before, and -- more significantly-- rejected by a jury as well.  More recently, defendant Williams raised this issue in his pretrial motions addressing the first superseding indictment.  The Government responded to these issues in its Consolidated Opposition to Defendant’s Motion to Dismiss the Superseding Indictment for Failure to State an Offense, Government’s Opposition to Defendant’s Motion for Judgment of Acquittal and Motion for New Trial, and Government’s Opposition to Defendant’s Motion to Dismiss the Superseding Indictment for Failure to State an Offense.  In its December 3, 1996 Order, the Court expressly denied defendant’s motion to dismiss the false statement count relating to the OIG interview, stating that “the question [of] whether the statements charged as false in Count I(a) were literally true is for the jury to decide.”  Id. at 1.  These issues have already been decided and because defendant does not address any new issues in this matter, the Government invites the Court’s attention to the previously filed pleadings.

 

                2.             Defendant’s Due Process Rights Were Not Violated Where FBI Agents Did Not Inform Him That Any False Statement Would Subject Him to Criminal Liability

 

                Defendant next contends that his due process rights were violated when the FBI agents who conducted the June 9, 1994 interview did not advise him prior to the commencement of the interview that giving false statement during the course of the interview would subject the defendant to criminal liability.  As with the literal truth/materiality argument, the due process argument likewise has been raised previously by defendant in a pretrial motion relating to the first superseding indictment.  The Government already has responded to these issues in its prior opposition papers in connection with the first superseding indictment.  Since the Government’s position goes unchanged, the Government again invites the Court’s attention to the pleadings which previously have been filed.

B.             DEFENDANT WILLIAMS’ MOTION TO DISMISS COUNTS EIGHT, NINE, TWELVE, AND THIRTEEN FOR LACK OF VENUE IS FRIVOLOUS

 

                1.             Applicable Law

 

                “Venue is an issue that normally must be submitted to the jury.”  United States v. Lam Kwong-Wah, 924 F.2d 298, 301 (D.C. Cir. 1991), cert. denied, 506 U.S. 901 (1992).  As such, the facts sustaining venue are not appropriate subject for a pretrial motion to dismiss.  The Government has alleged conduct legally sufficient to uphold venue in the District of Columbia and must prove the allegations by a preponderance of the evidence at trial.  Id.

                If the Government proves the conduct alleged in the indictment, it will satisfy its burden of proving venue for the Meat Inspection Act and gratuity counts in the District of Columbia.^[2]  Meat Inspection Act violations and gratuity violations -- similar to giving illegal bribes -- are continuing offenses for venue purposes under 18 U.S.C. § 3237(a) (“any offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed”).  Venue for such continuing offenses is appropriate in any district in which the crime began, continued or was completed.  The crimes charged are continuing offenses under 18 U.S.C. § 3237(a).  United States v. North, 910 F.2d 843, 912 (D.C. Cir. 1990) (gratuity is a continuing offense) (citing Goodloe v. United States, 188 F.2d 621 (D.C. Cir. 1950), cert. denied, 342 U.S. 819 (1951)); United States v. Niederberger, 580 F.2d 63 (3d Cir.), cert. denied, 439 U.S. 980 (1978)(same); United States v. Stephenson, 895 F.2d 867, 874-75 (2d Cir. 1990) (bribery is a continuing offense); see also, United States v. Cattle King Packing Co., 793 F.2d 232, 239 n.4 (10th Cir.), (violations of Meat Inspection Act held as continuing offenses under 18 U.S.C. § 3237), cert. denied, sub nom., Stanko v. United States, 479 U.S. 985 (1986).

                2.             Counts Eight, Nine, Twelve And Thirteen Are Properly Venued In The District Of Columbia

                Defendant Williams moves to dismiss Counts Eight, Nine, Twelve and Thirteen -- each charging violations of the Meat Inspection Act, 21 U.S.C. § 622, or the gratuities statute, 18 U.S.C. § 201(c)(1)(A) -- on the basis that the indictment does not allege proper venue.  His motion should be denied because (1) proof of venue is an issue of fact for the jury and (2) the indictment alleges facts which, if proven, are legally sufficient to support venue in the District of Columbia.

                The venue issue presented here is controlled by precedent firmly established in two D.C. Circuit cases: North and Goodloe.  In North, 910 F.2d at 911-12, the defendant argued that he did not violate the gratuity provision by accepting or receiving a gratuity -- a security fence for his home -- in the District of Columbia.  Rather, he contended that if he received and accepted the gratuity then he did so where his benefactor physically installed the fence: at North’s home in suburban Virginia.  The D.C. Circuit rejected North’s claim because venue may be appropriate in more than one district.  The Government proved at trial that North discussed installation of the fence in a single conversation with his benefactor in the District of Columbia.  Thus, in part, North accepted the fence in the District of Columbia.  Similarly, Williams offered things of value in the District of Columbia by discussing with the Secretary and Assistant Secretary the things of value that he later physically conferred on them.  At trial, the United States will prove those allegations by a preponderance of the evidence as required.

                In Goodloe, the defendants were charged, in part, with attempting to bribe a Government witness.  188 F.2d at 622.  The defendants telephoned the witness  from Washington, D.C. to Baltimore, Maryland.  They then departed from Washington to Baltimore where they actually offered money to the witness so the witness could leave town.  The D.C. Circuit upheld venue for the attempted bribery in the District of Columbia on the basis of the phone call to offer the bribe and departure from Washington in order to physically attempt to give the bribe in Baltimore.  Thus Williams’ actions in the District of Columbia -- discussing and offering the things of value he later physically conferred upon the Secretary and the Acting Assistant Secretary -- are alone sufficient to provide venue in this district.^[3]

                As to the defendant’s gift of airline tickets to the Secretary’s girlfriend to travel to Dallas, Texas to attend the playoff football game and the benefit Secretary Espy derived therefrom, the defendant purchased the tickets in Washington, D.C. and they were delivered and physically given to the Secretary’s girlfriend at her place of employment in Washington, D.C. on January 13, 1994.  Indictment, ¶25(d)(iv).

                Finally, travel by the public officials -- and by the Secretary’s girlfriend -- so that the defendant could physically give the things of value also suffices to establish venue in the District of Columbia.  See Goodloe, supra; see also Niederberger, 580 F.2d at 69-70 (defendant public official accepted things of value in Pittsburgh by departing from Pittsburgh to fly to location where things of value were actually given).  The Acting Assistant Secretary traveled with a “first class upgrade,” given to her by Williams, to Washington National Airport.  Indictment, ¶25(e)(iii)(1).  Additionally, the Secretary’s girlfriend traveled from National Airport to Dallas with a ticket provided by the defendant, and she and Secretary Espy returned to National Airport on Sunday following the game.  Id., ¶¶25(d)(v) and (ix).

                The defendant’s assertion that travel from Washington National Airport is not travel in the District of Columbia is not supported by the cases he cites.  Defendant’s cases never address whether flights leaving from or arriving at National Airport travel through the District of Columbia.  Rather, they involve civil suits brought for actions occurring at National Airport which is undisputedly located in the Eastern District of Virginia.  If necessary, the government will prove at trial that flights taking off from and arriving at National Airport necessarily travel through the District of Columbia, thereby proving venue in this district.  See United States v. Ramirez-Amaya, 812 F.2d 813, 816 (2d Cir. 1987) (in drug importation case where airplane landed at LaGuardia Airport, in Eastern District of New York, venue proper in Southern District of New York because the plane flew over the Narrows, a body of water within the joint jurisdiction of the Southern and Eastern Districts of New York) (citing United States v. Williams, 536 F.2d 810, 812 (9th Cir.), cert. denied, 429 U.S. 839 (1976)).

                In short, Counts Eight, Nine, Twelve and Thirteen cannot be dismissed for lack of venue at this juncture.  The allegations in the indictment taken as true, as they must be on a motion to dismiss, amply establish venue for violations of the Meat Inspection Act and the gratuities statute in the District of Columbia.

C.             DEFENDANT WILLIAMS’ MOTION TO DISMISS COUNTS ONE, FIVE, SIX, TWELVE, AND THIRTEEN FOR PROSECUTORIAL VINDICTIVENESS IS MERITLESS

 

                Defendant Williams’ Motion to Dismiss Counts One, Five, Six, Twelve, and Thirteen of the Second Superseding Indictment on the Ground of Prosecutorial Vindictiveness is, in all substantive respects, a repetition of Mr. Williams’ prior motion to dismiss based on alleged prosecutorial vindictiveness.  Thus, we respectfully adopt the Government’s Opposition to Defendant’s Motion to Dismiss Counts One and Two of the Superseding Indictment on the Ground of Prosecutorial Vindictiveness, filed on January 6, 1998.

                We noted in the Opposition that any presumption of vindictiveness is conclusively rebutted, or does not arise at all, given our notification to Mr. Williams, prior to the Court’s grant of his motion for new trial, that he was going to be charged with additional counts in any event.  Moreover, our notification to Mr. Williams that his decision not to plead guilty likely would result in additional charges is expressly authorized by Bordenkircher v. Hayes, 434 U.S. 357 (1978).

                Mr. Williams offers essentially no substantive response to either of these points.  He alleges that the most recent superseding indictment of Mr. Williams in fact charges him with more offenses, in addition to the original false statements charges, than were initially mentioned by the prosecutor prior to the grant of Mr. Williams’ motion for new trial.  Although the exact offenses are not explicitly listed, an examination of the transcript excerpts appended to our initial Opposition shows that the government informed Williams’ prior counsel of its intention to charge him with additional, gratuities-related counts. Either way, however, the analysis is unaffected.  Additional charges were planned.  The government informed Williams before the court granted his request for a new trial.  Thus, the additional charges could not have been in retaliation for Williams’ exercise of his constitutional rights.

                Williams contends that the Office of Independent Counsel informed him in advance of its intention to charge him with additional offenses “says nothing more than that the OIC intended from the outset to force Mr. Williams to run a gauntlet designed to wear down his defenses, and not designed as a search for the truth.”  Williams’ Vindictiveness Motion at 6.  He contends that prosecuting him in more than one case is not in “society’s interests,” and that “[t]hus exposed, the OIC’s actions again raise the presumption of vindictiveness.”  Id.  This argument simply makes no sense.  For a prosecution to be vindictive, it must constitute retaliation for the exercise of a constitutional right.  Given that the government plainly planned all along to charge Williams with additional offenses and so informed him before his successful exercise of the constitutional right at issue, the decision to charge him with additional offenses is per se not vindictive.  If the government had decided to proceed via sequential prosecutions in a concerted attempt to deplete Mr. Williams’ and society’s resources, that would be reprehensible.  However, it would not be vindictive, and would afford no basis for dismissal.

                The fact is that the Office of Independent Counsel decided as early as September 1996 to proceed against Mr. Williams in two separate cases.  The first alleged false statements and the second alleged gratuities and related offenses.  That decision was a perfectly legitimate exercise of prosecutorial discretion, and was made for reasons having nothing to do with a desire to “wear Mr. Williams down” or waste his resources or this Court’s time.  When a new trial was ordered for Mr. Williams, the OIC eventually elected to proceed against Mr. Williams and Mr. Schaffer via a single indictment charging false statements, gratuities and related offenses.

                Given the existence of conclusive record evidence to the effect that we had planned to charge Mr. Williams with additional offenses well before he received a new trial, an affidavit setting forth our rationale for proceeding in this manner would appear to be unnecessary.  Moreover, placing such an affidavit on the record would invade the government’s internal decision making process and our prosecutorial discretion.  However, to the extent that the Court harbors any lingering concern about possible vindictiveness in this prosecution after considering the clear record evidence to the contrary, we will provide such an affidavit directly from the Independent Counsel.  Should that become necessary, we would request leave to provide the affidavit to the Court ex parte and in camera.

D.            DEFENDANTS’ JOINT MOTION TO DISMISS COUNTS FIVE, SEVEN, EIGHT, ELEVEN, AND TWELVE, AND PART OF COUNT ONE FOR FAILURE TO STATE AN OFFENSE UNDER THE FEDERAL GRATUITIES STATUTE SHOULD BE DENIED AS PREMATURE

 

                1.             The Factual Question Of Whether Defendants Gave The “Things Of Value” Alleged Directly Or Indirectly Cannot Be Resolved On A Pretrial Motion To Dismiss.

 

                Defendants next move for dismissal of Counts Five, Seven, Eleven, Twelve and part of Count One on the ground that gifts to a third party do not constitute a violation of the Meat Inspection Act or the gratuities statute, pursuant to Fed. R.Crim. P. 12(b).  Rule 12(b) permits a defendant to raise a defense “which is capable of determination without the trial of the general issue.”  A defense is generally “capable of determination” on a pretrial motion if it raises questions of law rather than fact.  United States v. Shortt Accountancy Corp., 785 F.2d 1448, 1452 (9th Cir.) (1986); United States v. Korn, 557 F.2d 1089, 1090 (5th Cir. 1977).  In other words, pretrial determination is appropriate where “trial of the facts surrounding the commission of the alleged offense would be of no assistance in determining the validity of the defense.”  United States v. Covington, 395 U.S. 57, 60 (1969).

                For this reason, defendants’ defense that they did not give Secretary Espy any of the gratuities alleged in Counts Five, Seven, Eight, Eleven, Twelve, and the relevant portion of Count One, and therefore did not give, offer, or promise him anything of value cannot be determined on a pretrial motion to dismiss.  It is purely a question of fact whether the gratuities alleged amounted to “anything of value” to Espy.

                The court addressed this situation in United States v. Sun-Diamond Growers of California, 941 F. Supp. 1262, 1269-71 (D.D.C. 1996), reversed on other grounds, 1998 U.S. App. LEXIS 5277 (No. 97-3072) (D.C. Cir. Mar. 20, 1998), where the government charged a donor with giving Secretary Espy gratuities under 18 U.S.C. § 201.  In that case, the government charged a different defendant with subsidizing Secretary Espy’s girlfriend’s travel on a similar trip.  The Court held that the “alleged benefit, coupled with any other intangible benefit that Secretary Espy may have received, including [his girlfriend’s] companionship, warrants the submission of this matter for the jury to determine whether in fact Secretary Espy received a benefit.”  Id. at 1270.  Here, as in Sun-Diamond, the question of whether Secretary Espy received a “thing of value” from defendants’ act of subsidizing Espy’s girlfriend’s travel as alleged in the meat inspection and gratuities counts is a fact question that can only be resolved by the jury, not by the Court on a pretrial motion.  Accord Sun-Diamond, No. 97-3072, slip op. at 13 (“we reject Sun-Diamond’s broad attack on the indictment”).

                Defendants’ argue that the aforementioned counts must be dismissed because the gratuities at issue were provided to Espy’s girlfriend. Therefore, according to defendants’ logic, these gifts could not have been of value to Espy, but only to a third party.  This cramped argument erroneously assumes that the only person who could possibly benefit from the transfer of a gratuity is the direct recipient.  To the contrary, there is no logical reason why someone other than the recipient of a gratuity cannot derive a benefit -- i.e., receive a “thing of value” -- from the transfer.

                In Sun-Diamond, the Court addressed this issue in detail.  While the funds did not initially go to Espy, he nevertheless received a “thing of value.”  941 F. Supp. at 1269.  The court held “a ‘thing of value’ can constitute both tangible benefits, such as money, and intangible benefits, such as companionship.”  Id.

                The district court’s analysis of this issue in Sun-Diamond is incontestable.  The broad statutory language “anything of value” found in the Meat Inspection Act, as well as Section 201, cannot be limited to money or commercially available goods.  Similar language in various criminal statutes has been held to encompass both tangible and intangible benefits.  United States v. Nilsen, 967 F.2d 539, 542 (11th Cir. 1992), cert. denied, 507 U.S. 1034, 113 S.Ct. 1856 (1993) (“thing of value” in 18 U.S.C. § 876 includes intangible objectives.)  See also United States v. Marmolejo, 86 F.3d 404, 410-412 (5th Cir. 1996) (conjugal visits with prisoner is a “thing of value”); United States v. Girard, 601 F.2d 69, 71 (2d Cir.), cert. denied, 444 U.S. 871, 100 S.Ct. 148 (1979) (sale of DEA files is an intangible “thing of value,” and citing cases which hold “thing of value” includes amusement, sexual intercourse, promise to reinstate an employee, and agreement not to run in election).  Courts have focused “on the value which the defendant subjectively attaches to the items received.”  United States v. Gorman, 807 F.2d 1299, 1305 (2d Cir. 1986) (citing United States v. Williams, 705 F.2d 603, 623 (2d Cir. 1983) (stock in fictional company constituted a gratuity)).

                Just as in Sun-Diamond, Espy may not have himself received cash or the gratuities provided to his girlfriend (i.e., the scholarship, the amenities related to the May, 1993 trip to Russellville, Arkansas, and the amenities related to the January, 1994 trip to Dallas, Texas), but he surely received something of value from Williams and Schaffer.  This is all that the statutes require.  Sections 622 and 201 explicitly proscribe the “giv[ing], pay[ing] or offer[ing], directly or indirectly,” of “any money or other thing of value.”  (emphasis added).

                The language of the statutes is unequivocal -- it forbids both direct and indirect gratuities.  See Park ‘N Fly, Inc. v. Dollar Park and Fly, 469 U.S. 189, 194 (1985) (“Statutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose.”); Norfolk & Western v. American Train Dispatchers’ Association, 499 U.S. 117, 128 (1991) (“As always, we begin with the language of the statute and ask whether Congress has spoken on the subject before us.  ‘If the intent of Congress is clear, that is the end of the matter; for the court . . . . must give effect to the unambiguously expressed intent of Congress.’”) (citing Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-843 (1984)).

                Sections 622 and 201 clearly prohibit both direct and indirect gifts of “anything of value” to a USDA official or a public official respectively.  Here,

 there can be no question that Secretary Espy received a benefit from the gratuities given to his girlfriend, but in any event the proof, one way or the other, must await trial.  Thus, although defendants Williams and Schaffer did not initially provide the things of value charged to Espy, the Secretary received direct and indirect benefit from the things of value given.  The provisions of the Meat Inspection Act and 18 U.S.C. § 201 required nothing more.

                2.             Whether Or Not The Scholarship Awarded To Patricia Dempsey Was  A “Thing Of Value” To Secretary Espy, And Whether In The Giving Of The Award To Patricia Dempsey Defendants Defrauded The United States And Its Citizens Of The Honest Services Of Secretary Espy Is A Question For The Jury.

 

                In a separate argument, defendants further assert that Counts One and Five of the second superseding indictment fails to allege that the scholarship award to Patricia Dempsey caused the United States and its citizens to be defrauded, averring that the awarding of the scholarship “was not done by deceit, craft, or trickery.  Nor was its grant by means that were dishonest since . . . . the scholarship was of no benefit to Secretary Espy.”  (Def’s Mem. at 7)   The essence of defendants’ argument is grounded on the supposition that there could have been no conspiracy to defraud since no dishonesty existed in the transfer of scholarship.  Consequently, Secretary Espy received no benefit from Dempsey’s receipt of the scholarship.  Whether or not dishonesty played a part in the awarding of the scholarship depends upon whether or not the scholarship to Dempsey was a “thing of value” to Secretary Espy.  As with the previous argument, this is a question of fact for the jury, and for the reasons indicated above cannot be decided by the Court on a pretrial motion to discuss.

E.             DEFENDANTS’ JOINT MOTION TO DISMISS THE MEAT INSPECTION ACT COUNTS FOR FAILURE TO STATE AN OFFENSE SHOULD BE DENIED ON THE MERITS, OR IN THE ALTERNATIVE, SHOULD AWAIT RESOLUTION BY THE D.C. CIRCUIT

 

                Defendants present no reason for departing from the clear prohibition in 21 U.S.C. § 622 against an individual giving anything of value to an “officer or employee of the United States authorized to perform any of the duties prescribed by [the Meat Inspection Act] . . . with intent to influence said” ... officer or employee.”   Both the Secretary and Acting Assistant Secretary had duties prescribed under the Meat Inspection Act.  Nothing in the statute’s language or history supports a conclusion that the Act does not cover them.  Although the defendants ask this Court to perceive some ambiguity in the statute or to address the constitutionality of its penalty provisions, both exercises are unwarranted given the statute’s plain language. The Government fully briefed this issue in its Opposition to Defendant’s Motion to Dismiss the Superseding Indictment for Failure to State an Offense filed January 6, 1998, and incorporates by reference the arguments at pages 8-25 therein.

                With the exception of a four-and-one-half page discussion of Judge Urbina’s dismissal of three counts charging that Secretary Espy accepted illegal gratuities in violation of section 622 of the Federal Meat Inspection Act of 1907, 21 U.S.C. § 622, see United States v. Espy, --- F. Supp. ---, 1997 WL 795807, *20-21 (D.D.C. December 23, 1997), defendant Schaffer has joined Williams in refiling the latter’s prior motion verbatim.  The matter currently is on appeal to the D.C. Circuit, which has reserved decision following oral argument on March 25, 1998.

                The Government’s position is that Judge Urbina misinterpreted the broad language of the statute which necessarily includes the Secretary and the Acting Assistant Secretary.  Both, in fact, were officers or employees authorized to perform duties under the Act.  In addition, Judge Urbina ignored recent decisions   of the Supreme Court that support the Government’s position.  See Brogan v. United States, 118 S.Ct. 805 (1998) (validating the proposition that while Congress may intend to address a limited evil, statutory language often proscribes a broader set of practices).  The Government already has briefed all of the issues raised by the defendants in this new motion and awaits the decision of the D.C. Circuit in Espy which will dispose of the matter.

F.             DEFENDANTS’ JOINT MOTION TO STRIKE PREJUDICIAL SURPLUSAGE FAILS TO MEET THE EXACTING STANDARD AGAINST JUDICIAL REWRITING OF AN INDICTMENT

                1.             Legal Standard: Surplusage Is Ordered Stricken In

                                Only The Rarest Instances

 

                The defendants’ analysis of the case law of surplusage is misleading and incomplete.  Although Fed. R. Crim. P. 7(d) provides district courts with wide discretion over motions to strike surplusage from an indictment, United States v. Poindexter, 725 F. Supp. 13, 35 (D.D.C. 1989), rev’d on other grounds, 951 F.2d 369 (D.C. Cir. 1991), surplusage should only be stricken in rare instances when three distinct criteria are met: when the language requested struck is (1) not relevant to the charges; (2) inflammatory; and (3) prejudicial.  See United States v. Rezaq, 908 F. Supp. 6, 8 (D.D.C. 1995), aff’d, 134 F.3d 1121 (D.C. Cir. 1998); see also Dranow v. United States, 307 F.2d 545 (8th Cir. 1962); Charles A. Wright, Federal Practice and Procedure: Criminal § 127, at 426 (2nd ed. 1982).  “However, if the evidence of a challenged allegation is admissible and relevant to a charge in the indictment, the wording should not be stricken even if it may be prejudicial.”  United States v. Weinberger, Crim.A.No. 92-235, 1992 WL 294877 (D.D.C.) (Sept. 29, 1992).

                This circuit disfavors motions to strike surplusage. United States v. Watt, 911 F. Supp. 538, 553 (D.D.C. 1995).  “The standard under Rule 7(d) has been strictly construed against striking surplusage.”  Id. (quoting United States v. Jordan, 626 F.2d 928, 930 n.1 (D.C. Cir. 1980)); see also United States v. Poindexter, 725 F. Supp. 13, 35 (D.D.C. 1989).  As recently re-emphasized by the D.C. Circuit in United States v. Oakar, 111 F.3d 146, 157 (D.C. Cir. 1997):

The scope of a district court's discretion to strike material from an indictment is narrow . . . .  United States v. Jordan, 626 F.2d at 931 n.1.  “Words of description of what is legally essential to the charge in the indictment cannot be stricken as surplusage.” WRIGHT, FEDERAL PRACTICE AND PROCEDURE:  CRIMINAL § 127, at 426.  Material that can fairly be described as “surplus” may only be stricken if it is irrelevant and prejudicial.  Id.; see also United States v. Rezaq, 908 F. Supp. 6, 8 (D.D.C. 1995); United States v. Poindexter, 725 F. Supp. 13, 35 (D.D.C. 1989).^[4]

 

The D.C. Circuit is not alone in its disfavor of the practice of re-crafting an indictment returned by a grand jury in a line-by-line re-examination of the charging instrument.  Watt, 911 F. Supp. at 554.  See, e.g., United States v. Marker, No. L94-40002-01-SAC, 1994 WL 192018, at 8 (D. Kan, Apr. 15, 1994); United States v. DePalma, 461 F. Supp. 778, 797 (S.D.N.Y. 1978).

                Accordingly, striking surplusage from an indictment, “although permissible, is by no means mandatory.”  Rezaq, 908 F. Supp. at 8.  The standard which a district court applies to determine whether to strike language from an indictment is exacting, done only in the rarest of instances.  Id; see Poindexter, 725 F. Supp. at 35 (citing  Jordan, 626 F.2d at 931 n.1 (“Rule 7(d) has been strictly construed against striking surplusage)).  A defendant must overcome a “most severe burden” to warrant striking language from an indictment.  Watt, 911 F. Supp. at 553.  The defendants fail to overcome this burden, much less acknowledge that this burden exists.  This is not one of the rare instances referred to by Rezaq, 908 F. Supp. at 8.  The language of the indictment should remain as currently written.

                2.             The Terms In The Indictment Are Not Surplusage

                                a.             Paragraphs 11 and 12 Provide Necessary Background for the Indictment.

 

                                Paragraphs 11 and 12, in the government’s section entitled “Background to All Counts,” serve the critical function of providing necessary factual and legal background for the jury enabling them to understand the full scope of the defendants’ activities by placing the defendants’ conduct in its appropriate context.  Consequently, striking these paragraphs would be wholly inappropriate.  Watt, 911 F. Supp. at 554.  In Watt, the district court held that when an Independent Counsel based an indictment on multiple counts that “implicate a wide range of the defendant’s professional activities . . . background information is undoubtedly helpful.”  Id.  (explaining the duties owed to the public by Cabinet officials is a key to a jury’s  understanding of these counts).  Paragraphs 11 and 12 define the relationship created between the defendants and USDA because of defendants Williams’ and Schaffer’s occupations.

                The government has charged the defendants with a wide range of activities. The government alleged that the defendants gave things of value on multiple occasions and conspired to defraud the United States of America, by interfering with and obstructing lawful governmental functions of the United States Department of Agriculture concerning its right and the right of the citizens of the United States to the honest services of Secretary Espy, free from deceit, fraud, dishonesty, conflict of interest and unlawful compensation.  To understand the nature and gravity of these allegations, these gratuities must be placed in the proper context.  The jury must be able to understand the relation between the defendants, the defendants’ employer, and member of the President’s Cabinet responsible for regulating the defendants’ industry.  5 U.S.C. § 7353 clearly defines what is permissible in this relationship, and even more clearly defines what is not.

                Watt held that this type of background information is particularly useful in cases involving perjury, false statements, and obstruction of justice.  See Watt, 911 F. Supp. at 554.  This indictment contains two false statements counts against Williams (Indictment Counts 14-15) and additional false statement allegations against Schaffer in the conspiracy charge (Indictment Count 1).  In Poindexter, Judge Greene reasoned that “it would be difficult, if not impossible, for the jury to understand the defendant’s allegedly false statements and obstruction without [such] background.”  725 F.Supp at 37. 

                Judge Hogan expressed a similar sentiment in United States v. Weinberger, noting that the Office of Independent Counsel had a legitimate “need to place the defendant’s actions in context and to establish the defendant’s state of mind, intent and motives.”  Watt, 911 F. Supp. at 554 (quoting Weinberger, No. 92-235, 1992 WL 294877 (D.D.C. Sept. 29, 1992)).  The relationship between the defendants, the Department of Agriculture, the Secretary of Agriculture, and the prohibition on gratuities, must be placed in the context of 5 U.S.C. 7353 in order to understand what honest services the defendants deprived by their actions..

                Background information relevant to the charges the government intends to prove at trial is not considered surplusage.  United States v. Hill, 799 F. Supp. 86, 88-89 (D. Kan. 1992) (citing United States v. Climatemp, Inc., 482 F. Supp. 376, 391 (N.D. Ill. 1979), cert. denied, 462 U.S. 1134 (1983) (“if the language in the indictment is information which the government hopes to properly prove at trial, it cannot be considered surplusage no matter how prejudicial it may be (provided, of course, it is legally relevant).”)).  Here, the Background section of the Indictment consists of matters that the government intends to prove and which are necessary to explain the substantive counts to the jury.  Moreover, the Background section provides the jury with a description of the “scheme and artifice to defraud” that forms the predicate acts for Counts 1 through 6.  Thus, it constitutes “a plain, concise and definitive written statement of the essential facts constituting the offense charged.”  Fed. R. Crim. P. 7(c)(1).

                Although the defendants’ lengthy recitation of the history, surrounding facts, and resulting law review articles related to United States v. Mandel, 415 F. Supp. 997, supplemental op., 415 F. Supp.1025 (D. Md. 1976), aff’d in part and vacated in part, 591 F.2d 1347 (4th Cir. 1979), is mildly interesting, it is not relevant to the case at bar.  The defendants cite Mandel for the proposition that the term “prohibited source” is surplusage because it is not part of the United States Code and its consequent use in a federal indictment is prejudicial.  Id. at 1009.  The defendants fail to contend with Poindexter, 725 F. Supp. 13.  Poindexter explains why District of Columbia courts interpret Mandel differently.  While possibly controlling in Maryland,  Mandel is simply not the “seminal case,” nor “leading case” on this subject in the District of Columbia.  (Defendant’s Memo at 5.)

                The defendant in Poindexter claimed that the term “Boland amendment” was surplusage because the amendment did not apply to National Security Council employees and consequently, the indictment could not charge that the defendant violated it.  725 F.Supp. at 36.  Mandel involved indictment language referring to the Maryland State Employees Code of Ethics.  415 F. Supp. at 1009.  The court in Poindexter noted that this Code of Ethics formed “merely one of many possible indicia of an intent to deceive.”  725 F. Supp. at 36 n. 48.  Moreover, the court opined, the Code of Ethics would probably not be admissible into evidence.  Id.  Title 5 U.S.C. § 7353 is not one of many laws that show possible indicia, it is the benchmark that demonstrates this important fact in the case.

                Poindexter further pointed out that the term “Boland amendment” is different from the state law in Maryland.  725 F. Supp. at 36.  Since “Boland amendment” restrictions were the focus of the investigation, the court held that “eliminating the term would be the equivalent of performing “Hamlet without the Prince of Denmark.” Id.  Likewise, the term “prohibited source” has been at the crux of the Independent Counsel’s investigation since the Office of Inspector General first began its investigation.  The term is at the heart of the illegality of the defendants’ alleged conduct.

                The final regulations issued by the United States Office of Government Ethics, codified as Standards of Ethical Conduct for Employees of the Executive Branch, 5 C.F.R. § 2635, prohibited the Secretary of Agriculture from soliciting or accepting, directly or indirectly, a gift from a prohibited source or a gift given to him because of his official position.  5 C.F.R. §§ 2635.202 (a)(1)&(2).^[5]  The regulations prohibit government employees from soliciting or coercing a gift, accepting gifts from the same or different sources on a basis so frequent that a reasonable person would conclude that he used his public office for private gain, or unlawfully accepting gifts in violation of any statute.  Id. at §§ (c)(1)(2)(3) & (4).  Paragraphs 11 and 12 go directly to the intent element the government will to prove at trial.

                The Standards of Ethical Conduct for Employees of the Executive Branch defines a prohibited source as any person who seeks official action by (in this case) the Department of Agriculture (USDA), does business or seeks to do business with USDA, conducts activities regulated by USDA, has interests that may be substantially affected by performance or non-performance of Secretary Espy in his duties as Secretary of USDA, or is an organization whose members either have business or seek to do business with USDA, conduct activities regulated by USDA, or have an interest that may be substantially affected by Espy’s performance or non-performance of his duties as Secretary.  5 C.F.R. §§ 2635.203 (d)(1)-(5).  As professionals engaged in governmental affairs and lobbying, defendants understood the relationship they had with the Secretary.  They chose to ignore the boundaries that this relationship created and knowingly transgress these rules.

                In addition, 18 U.S. C. § 201 (c)(1)(A),^[6] adopts the definition of  “official act,” in prohibiting a public official from accepting anything of value for or because of any official act, as “any decision or action on any question, matter, cause, suit, proceeding or controversy, which may be pending . . . [before the public official].”  18 U.S. C. § 201 (a)(3).  Consequently, in bringing a charge under the statute, the government will identify the defendants as being prohibited sources, and then prove the matters they had pending before the USDA.

                In United States v. Whitehorn, 710 F. Supp. 803 (D.D.C. 1989), the court held that the term “violent” was not unduly prejudicial, even though the defendant was not charged with a crime where violence was an element.  Id. at 820.  The court held that because the jury would hear evidence about the defendant’s violent behavior “from the first day of trial, with opening argument and evidence referring directly to bombings” their attention would be focused on violent crime, and consequently, the jurors would not be prejudiced.  Id.

                Moreover, when a term is the best descriptive term, it is the one that should be used in the indictment.  See Whitehorn, 710 F. Supp. at 820.  In Whitehorn the court opined that “violent,” as defined by the dictionary, was the most clear and concise way to describe a bomb blast; stating “it is difficult to conclude that the deliberate setting off of bombs in a number of buildings are not acts of violence.”  Id.  Other District of Columbia courts have echoed this sentiment.  Cf. Hubbard, 474 F. Supp. at 82 (holding that “colorful words” were prejudicial when less colorful, more accurate, words would suffice). 

                “Prohibited sources” are sources that Department of Agriculture employees are prohibited from dealing with in a professional capacity because these dealings would, at the very least, create appearances of conflicting interests.  This term is the clearest, most innocuous way to describe these entities.  The defendants unquestionably were prohibited sources and this language clearly sets out their relationship with USDA and the Secretary.  Not only will “prohibited source” be addressed at trial, the term describes those who have matters before the USDA are forbidden as a source of gifts, meals and other things of value, and must remain in the indictment.  See United States v. White, 766 F. Supp. 873, 886 (E.D. Wash. 1991) (terms that describe relevant piece of evidence, which many witnesses will use, are not appropriately stricken as surplusage).

                The defendant cites Judge Urbina’s decision in United States v. Espy for the proposition that paragraphs 11 and 12 should be stricken.  1997 WL 795807.  Judge Urbina excised the term “prohibited source” because he found that in Secretary Espy’s indictment, the term did not “provide any additional insight into the charges against the defendant, but only serves to suggest to the jury that the defendant’s alleged receipt of gratuities from these entities constitute criminal conduct before he has an opportunity to defend himself.”  Id. at 18.  Judge Urbina added, however, that another term “should be employed to describe these entities without altering the essential substance of the indictment.”  Id.  Striking ¶¶ 11 and 12, as the defendants wish, clearly would alter the substance of the indictment.  As stated previously, the federal law relating to gifts and prohibited sources is the crux of the deprivation of honest services charge.  Paragraphs 11 and 12 provide important insight into the charges against the defendant.

                The government is at a loss to find a term that is more accurate, concise, or neutral.  The language in ¶¶ 11 and 12 describes the necessary concepts in the most neutral manner possible.  Under federal law, certain entities may not give gifts to members of the Department of Agriculture -- these entities are prohibited sources.  Judge Urbina called for a more neutral term than “prohibited sources” to be employed to describe these entities.  See Espy, 1997 WL 795807, at 18.   If one looks up “prohibited” in the thesaurus, one finds words such as forbidden, banned, and outlawed.  Webster’s Collegiate Thesaurus.  Compared to the terms “outlawed” or “forbidden,” the word “prohibited” is clearly the most concise and least inflammatory.   These paragraphs must remain and the defendant’s motion to strike surplusage should be denied.

                                b.             The General Charging Language Contained in the Indictment is Neither Irrelevant Nor Prejudicial and Should Not be Stricken Simply Because the Defendant Would Have Written the Indictment Differently

                Defendants argue that certain phrases in the indictment constitute surplusage.  However, each of these terms relates to proof to be offered at trial and/or other charges in the indictment.  The defendants attempt to have this Court rewrite the indictment to their liking under the guise of eliminating language “that improperly suggests to the jury that Messrs. Schaffer and Williams are charged with offenses and conduct in addition to those identified by the Indictment.” (Def.'s Surplusage Mem. at 13).  These claims are meritless.

                The defendant cites Whitehorn, 710 F. Supp. at 803, for the proposition that certain terms are always prejudicial based on the word itself and not the word’s meaning.  This represents an incomplete reading of the case.  Sometimes, terms like “among others” and “but not limited to” can be prejudicial when they exist for no sufficient reason.  See id. at 819; see also United States v. Hubbard, 474 F. Supp. 64, 82 (D.D.C. 1979) (finding that terms were prejudicial when “they serve no useful purpose”).  However, only when “[t]he government has been unable to point to any purpose that might be served by [this] language” is it prejudicial.  Whitehorn, 710 F. Supp. at 810. The language in the indictment is relevant and in no way unfairly prejudices the defendant.

                                c.             The Specific Phrases Cited by the Defendant are not Surplusage:             

                               

                                                (1)           “In part and in substance”

                Paragraph 25(c)(i) of the indictment uses the term “in part and in substance.”  This term simply refers to the fact that the conversation did not exclusively deal with the issue of scholarship money; it dealt with that issue, as well as several others that may come up at trial but are not directly relevant to the conspiracy.  It is difficult to see how these five innocuous words could prejudice the defendant.  According to the controlling law in this circuit, this language should remain in the indictment.

 

                                                (2)           “[I]n part, and among other interests”

                In ¶ 13, the indictment lists several of the interests that Tyson Foods had before the Department of Agriculture and former Secretary Espy.  These interests are important in understanding the regulatory relationship that Tyson had with USDA and the gravity of the matters that formed this relationship.  These interests and the great amounts of monies at stake caused Tyson Foods to engage in the practice of lobbying in order to make sure that the various branches of the federal government became aware of causes favorable to Tyson. 

                The phrase “[i]n part, and among other interests” is used in the indictment to show two issues that were before USDA during the time that the events described in the indictment took place.  Because of the size of Tyson Foods and the wide scope of their business, other matters were undoubtedly in front of USDA also.  Listing every conceivable matter Tyson had in front of USDA would only serve to make the indictment confusing and imprecise, contrary to Fed. R. Crim. P. 7.  This term in no way prejudices the defendant.  The term “[i]n part, and among other interests” is simply the most concise and neutral way to accurately portray the relevant information.  The government has a compelling reason to keep this language in the indictment; without the phrase the paragraph is inaccurate.

 

                                                (3)           “Including but not limited to” and “Various means and methods”

 

                The terms “including but not limited to” and “various means and methods” also fail to clear the high hurdle necessary to strike surplusage.  As the indictment delineates, the defendants used “various means and methods” to mislead members of the federal law enforcement community.  If the indictment said they used only one method and means, the indictment would fail because it would be inaccurate and would fail to notify the defendants of exactly what they were being accused.  See Russell v. United States 369 U.S. 749, 763-64 (1962) (holding an indictment must clearly inform the defendant of the precise offense for which he is accused so he may prepare a defense). The term “included but not limited to” also makes the paragraph more factually accurate as demonstrated by the following paragraphs in the indictment. 

                                                (4)           “In part and among other things”

                The defendant claims that the phrase in ¶ 4(b) “in part and among other things” is somehow unnecessary and prejudicial.  Without this phrase, the indictment would state that the Secretary of Agriculture’s only duty owed to the American people would be to administer the Meat Inspection Act.  The Secretary of Agriculture has many other duties.  Clearly, this phrase is necessary for the indictment to be accurate.  Calling this phrase prejudicial is ridiculous.

                Similarly, when this same phrase is used in ¶ 10, it is used because failing to do so would be inaccurate.  The government, in this indictment, did not repeat the entire Meat Inspection Act verbatim because that would not be the most concise manner in which to notify the defendants of the charges they face.  The government included only the relevant portions of Section 622 of the Act. 

                Likewise, including this phrase in ¶ 40 is necessary because the New York Times article in question stated more than just “federal investigators are examining whether Agriculture Secretary Espy illegally accepted free travel, tickets to sporting events and other gifts from Tyson Foods, Inc.”  Quoting the entire article in the indictment verbatim would be silly and would certainly fail to make the indictment as concise as possible.

                                                (5)           “Among other things”

                The term “among other things” is also used properly throughout the indictment.  In Whitehorn, the term was used as a “catch-all” for all of the defendant’s misconducts and the court found this usage improper.  710 F.Supp. at 819.  Defendant appears to have improperly read this case to mean that term “among other things” is always prohibited without regard to the meaning and context of its use. This reading misses the point of the case.  Whitehorn only holds that language in an indictment must serve a purpose and not be prejudicial.  Id.  Here, the term is not used in such an improper manner.

                In ¶ 1, the term describes the mission of the USDA.  The mission of the USDA is vast.  Including every facet of it would make the indictment unnecessarily long and verbose.  Using this phrase to describe defendant Schaffer’s duties at Tyson Foods in ¶ 2(c) creates a more streamlined indictment by including only relevant information.  Once again, no undue prejudice could possibly come from the use of this phrase, which simply reflects the fact that Tyson Foods engages in more endeavors than “the sale of various of its products through programs administered by USDA.”  Paragraph 15 refers to an interim rule that did more than amend inspection regulations -- without “among other things” the statement would be inaccurate.  Paragraph 16 also requires “among other things” because Tyson Foods advised the USDA of more than simply the cost of new safe handling regulations.  “Among other things” is once again necessary to maintain the accuracy of the charging language.

                Paragraph 25(e)(ii) uses “among other things” to explain as concisely as possible that Messrs. Schaffer and Williams met with the Acting Assistant Secretary and discussed more than just the Fayetteville visit.  Part (iv) of this same paragraph uses the term “among other things” in an equally innocuous manner.  The Acting Assistant Secretary did speak about things other than “zero tolerance.”  It would be inaccurate to state that “zero tolerance” amounted to the only topic discussed.  Once again, simply because the defendants would want the indictment charged differently, does not mean it is flawed as surplusage.

                “Among other things” is used in ¶ 35 because when the USDA Inspector General’s office opened this investigation they engaged in an investigation of Tyson Foods and Secretary Espy that focused on matters other than the ones listed in this paragraph.  Without the term “among other things” the paragraph becomes inaccurate because it would imply that the Inspector General only looked at Tyson Foods’ conduct in relation to improper gifts.

                Paragraph 39 uses “among other things” for essentially the same reason as in ¶ 35.  The Federal Bureau of Investigation opened an investigation to look into the Secretary of Agriculture accepting football tickets and related conduct.  The goal of any investigation is to get all of the relevant facts and find the truth behind any allegations.  “Among other things” is used properly and certainly in no way prejudices the defendant.

                Paragraph 41 properly uses “among other things” to describe the questions FBI agents asked defendant Williams during the investigation.  The agents did not interview Williams only to find out about a newspaper article.  They asked him questions about a wider range of matters.  Once again, the term is used correctly by the government.   A full explanation of these events is not directly relevant to the a