United States District Court,
UNITED STATES of
WILLIAMS, and Archibald R. Schaffer III, Defendants.
May 29, 1998.
ROBERTSON, District Judge.
Defendants are charged together as co-conspirators in an alleged scheme to buy favored
treatment from the United States Department of Agriculture. Defendant Jack L. Williams was
a principal lobbyist for Tyson Foods, Inc. Defendant Archibald R. Schaffer, III was Tyson
Foods' vice-president in charge of media, public, and governmental affairs. Indictment
¶¶ 2(c) & (d). The charges are made in a second superseding indictment; the first
two indictments charged Williams alone.
The indictment describes various interests of Tyson-Foods that were pending before
USDA while Secretary Alphonso Michael ("Mike") Espy was Secretary of
Agriculture, ¶¶ 12-16, and charges that gifts and perquisites worth $12,218 were given
to or for the benefit of the Secretary, his girlfriend, and the then-Acting Assistant
Secretary of Agriculture over a 13-month period from January 1993 to February 1994. The
gifts and perquisites--seats to the 1993 Presidential inaugural gala, travel and lodging
connected with a Tyson birthday party in Russellville, Arkansas, travel, lodging and
tickets to a National Football Conference playoff game in Dallas, a Tyson foundation
scholarship for the Secretary's girlfriend, and, for the Acting Assistant Secretary of
Agriculture, a $13 basketball ticket and a first-class upgrade coupon for an airplane
flight from Memphis to Washington National Airport--are the factual bases for one count of
conspiracy, five counts of mail and wire fraud, three counts of Meat Inspection Act
violations, and four counts of illegal gratuities. Defendant Williams is also accused of
making false statements to investigators who were looking into these allegations in the
spring of 1994. Id., ¶¶ 34-42.
Defendants filed a number of motions to dismiss the indictment in various ways.
Rulings on the motions were issued on May 22, 1998. The motion to dismiss Counts IX and
XIII for improper venue was granted. The rest were denied. The reasons for those rulings
are set forth below.
I. Motions to dismiss Counts II - VI (mail and wire fraud) and Count I (conspiracy)
for failure to state an offense
 The denial of defendant's motions attacking the mail and wire fraud and conspiracy
counts was without prejudice to presentation of the supporting arguments at the close of
the Independent Counsel's case-in-chief. Defendants are correct, of course, that it is not
a crime to give money to a public official openly and with no intent to win anything more
than good graces. Unless the IC adduces proof of the deceit necessary to sustain a
conviction for the "honest services" variety of mail and wire fraud, or that the
things of value given to Secretary Espy and others were given "for or because
of" some action favorable to Tyson Foods' interests or to influence official action,
these charges will be dismissed at that time. They will not, however, be dismissed for
defects in the indictment.
Motion to dismiss Counts II - VI
 The elements of mail and wire fraud are: (1) a scheme to defraud and (2) the use
of interstate wires or mail to further that scheme. See
States v. Lemire, 720 F.2d 1327 (D.C.Cir.1983), cert. denied, 467 U.S. 1226, 104 S.Ct.
2678, 81 L.Ed.2d 874 (1984). Counts II - VI of the indictment charge the defendants
with devising or attempting to devise a scheme or artifice to defraud the United States of
its right to the Secretary of Agriculture's honest services, see 18
U.S.C. ss 1342, 1343 & 1346, and set forth the necessary elements in the language
of the statutes, describing the five communications that allegedly constitute mail or wire
fraud. In addition, Counts II - VI incorporate the first 17 paragraphs of the indictment,
which outline defendants' alleged gift-giving, and paragraph 25, which lists 21 overt acts
the defendants are alleged to have committed in furtherance of a conspiracy.
Defendants say that these counts should be dismissed because, although they recite the
language of the statute, they do not specify the conduct in which defendants engaged that
is supposed to have constituted bribery-like behavior. The IC responds that the necessary
elements of mail and wire fraud are included in the indictment, and that defendants'
demand for more specificity goes to the proof required at trial and not the sufficiency of
 Certainly, the mail and wire fraud charges would fail if they did not set forth
what the "scheme or artifice to defraud" is alleged to be. See United
States v. Curtis, 506 F.2d 985, 992 (10th Cir.1974), quoted in United
States v. Nance, 533 F.2d 699, 702 (D.C.Cir.1976). It is not necessary, however, to
charge that the defendants had in mind bribery or a specific quid pro quo. [FN1] It is
sufficient to charge behavior with an element of deceit--behavior that would prove the
defendants had the specific intent to defraud. See United
States v. DeFries, 129 F.3d 1293, 1306 (D.C.Cir.1997). Thus, an attempt to induce
undisclosed biased decisionmaking for personal gain could sustain a charge of intent to
States v. Czubinski, 106 F.3d 1069 (1st Cir.1997); United
States v. Rabbitt, 583 F.2d 1014 (8th Cir.1978), cert. denied, 439 U.S. 1116, 99 S.Ct.
1022, 59 L.Ed.2d 75 (1979).
FN1. The only
case that would appear to hold otherwise, United
States v. Brumley, 116 F.3d 728 (5th Cir.) (en banc), cert. denied, 522 U.S. 1028, 118
S.Ct. 625, 139 L.Ed.2d 606 (1997), does not, in fact, go that far. The Brumley court
held that at trial, the government must prove that a defendant acts or intends to act
against the best interests of his employer to prove an intent to defraud the employer of
honest services. The court specifically left open the question of whether this standard
could be met by a violation of a civil statute, such as a gift reporting act; it did not
require a showing of bribery-like behavior.
 Besides reciting the elements of the statutes, Counts II-VI incorporate two
allegations of behavior that, if proven, would add the necessary element of deceit. In ¶
25(b), the indictment alleges that the defendants engaged in subterfuge with respect to
Secretary Espy's travel to Arkansas for what turned out to be a Tyson birthday party. And,
in ¶ 25(f), it alleges that Williams and Schaffer made materially false statements to law
enforcement officials about their gifts to Secretary Espy.
Motion to dismiss Count I
Count I charges defendants with conspiracy to violate the gratuities statute, 18
U.S.C. s 201(c)(1)(A), the mail and wire fraud statutes, 18
U.S.C. ss 1342, 1343 & 1346, the Meat
Inspection Act, 21 U.S.C. s 622, and the false statements statute, 18
U.S.C. s 1001. A charge of conspiracy under 18
U.S.C. s 371 must contain the following elements: that there was an agreement; that
the purpose of the agreement was to break the law; that there was an overt act; that the
purpose of the act was to further the conspiracy; and that the defendants entered the
conspiracy willfully. See, e.g., United
States v. Daily, 921 F.2d 994 (10th Cir.), cert. denied, 502 U.S. 952, 112 S.Ct. 405, 116
L.Ed.2d 354 (1991). Defendants argue that the indictment fails to charge the necessary
agreement to break the law. Each basis for charging a conspiracy, except for violation of
the Meat Inspection Act, [FN2] is addressed in turn.
FN2. None of
the motions that address substantive issues involving the Meat Inspection Act will be
dealt with in this opinion. The MIA issues are the subject of an appeal pending before the
U.S. Court of Appeals for the District of Columbia Circuit in United
States v. Espy, 145 F.3d 1369 (D.C.Cir.1998) (notice of appeal filed Jan. 5, 1998).
 Gratuities offenses: One of the purposes of the alleged conspiracy, according to
the indictment, was to violate 18
U.S.C. s 201(c)(1)(A) (gratuities to public officials). ¶¶ 19 & 19(b). Count I
does not recite the elements of a gratuities violation, nor is it necessary that an
indictment for conspiracy describe the underlying offense with the specificity that would
be necessary to charge that offense: "In a charge of conspiracy, the conspiracy is
the gist of the crime, and certainty, to a common intent, sufficient to identify the
offense which defendants conspired to commit, is all that is requisite in stating the
object of the conspiracy." Williamson
v. United States, 207 U.S. 425, 447, 28 S.Ct. 163, 52 L.Ed. 278 (1908); see also Wong
Tai v. United States, 273 U.S. 77, 47 S.Ct. 300, 71 L.Ed. 545 (1927).
 It is well established, however, that each count in an indictment, unless it
expressly incorporates other counts, must be sufficient to stand alone. See United
States v. Fulcher, 626 F.2d 985 (D.C.Cir.), cert. denied, 449 U.S. 839, 101 S.Ct. 116, 66
L.Ed.2d 46 (1980); see also Fed.R.Crim.P. 7(c)(1). Mere citation to the statute for
the underlying offense is insufficient by itself to put the defendant on notice as to the
nature of the crime he is charged with agreeing to accomplish. See Williamson,
207 U.S. at 449, 28 S.Ct. 163 (citation alone is not enough to "import, ...
susceptible of no other construction,  that the unlawful agreement contemplated a future
[crime]"); see also United
States v. Werme, 939 F.2d 108, 112 & n. 1 (3rd Cir.1991), cert. denied, 502 U.S. 1092,
112 S.Ct. 1165, 117 L.Ed.2d 412 (1992); but cf. United
States v. Offutt, 127 F.2d 336 (D.C.Cir.1942).
 Count I goes beyond mere citation of the gratuities statute. It recites Tyson
Foods' interests before the Department of Agriculture, and it provides detail about the
things of value that defendants allegedly gave to Secretary Espy and others. But Count I
survives defendants' challenge only if it also alleges that these things of value were
given "for or because of" some action that was taken or was to be taken
regarding Tysons' interests.
 Paragraphs 10 and 19(b), read together, provide the necessary allegation of
intent. Paragraph 10 states that the Meat Inspection Act prohibits giving things of value
"with intent to influence [an] ... officer or employee of the United States in the
discharge of any duty." Paragraph 19(b) states that defendants violated the Meat
Inspection Act. Charging defendants with the "intent to influence" USDA
officials satisfies the intent element of the gratuities statute, and in fact, it is more
than that statute requires. See United
States v. Sun-Diamond Growers, 138 F.3d 961, 966 (D.C.Cir.1998) (intent to reward
sufficient for proving gratuities violation). Count I thus sets forth the elements of
illegal gratuities with sufficient specificity.
 Mail and wire fraud: The IC's failure to cite to the mail and wire fraud statutes
in Count I is not fatal to the charge. See Fed.R.Crim.P. 7(c). Defendants' alleged scheme
to commit mail and wire fraud is described with enough specificity to state the object of
the conspiracy. Paragraph 19 sets forth the necessary scheme to defraud, [FN3] and eleven
of the overt acts described in ¶ 25 involve the use of mails or wire to further the
alleged conspiracy. [FN4] This suffices to show "certainty, to a common intent,
sufficient to identify the [mail and wire fraud] offense which defendants conspired to
207 U.S. at 447, 28 S.Ct. 163.
19 charges that defendants "knowingly combined, conspired, confederated and agreed
together and with each other to defraud the United States of America, by interfering with
and obstructing the lawful governmental functions of the United States Department of
Agriculture, a department and agency thereof, of and concerning its right and the right of
the citizens of the United States to the honest services of Secretary Espy performed free
from deceit, fraud, dishonesty, conflict of interest and unlawful compensation."
25(b)(ii), (iii) & (v); (c)(ii), (iii), (iv), (v), (vi) & (viii); (d)(iii) &
 False statements: Defendants argue that violation of 18
U.S.C. s 1001 cannot be charged as the object of the conspiracy here because the
central purpose of the alleged conspiracy, to curry favor with Secretary Espy, was ended
by newspaper exposure before the statements were allegedly made, and "acts committed
after the central purpose of a conspiracy has been achieved or abandoned, and intended
solely to cover up and conceal the completed conspiracy or escape detection and
punishment, are not acts in furtherance of the conspiracy." Def. Mot. to Dismiss
Count I at 9. That argument hyperextends the rule of Grunewald
v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957), which dealt with
the question whether attempts at concealment could be regarded as overt acts in
furtherance of the conspiracy in order to extend the statute of limitations.
 So, too, does the IC's theory--that the objective to buy Secretary Espy's
services continued as long as he was in office--overstate the rule of United
States v. Maloney, 71 F.3d 645 (7th Cir.1995), cert. denied, 519 U.S. 927, 117 S.Ct. 295,
136 L.Ed.2d 214 (1996). The correct rule is the narrower one, articulated in United
States v. Marcus Schloss & Co., Inc., 710 F.Supp. 944 (S.D.N.Y.1989), and faithful
to the core of Grunewald, that acts of concealment may indeed be in furtherance of a
conspiracy, if concealment was an express purpose of the conspiracy in the first place.
The false statements allegedly made by Williams and Schaffer are charged in Count I as an
agreed-upon "Objective[ ] of the Conspiracy." See ¶¶ 21-22. That is the proper
charging language. It remains to be seen whether the IC has evidence to support the
charge. To sustain his case, the IC must show either that there was an express agreement
between the defendants to conceal their gift giving or that the false statements occurred
while the conspiracy was in full swing. See Marcus
Schloss, 710 F.Supp. at 950. The latter will be an uphill battle at trial, given that
the alleged gifts and gratuities were exposed in the Wall Street Journal before either
defendant was interviewed for the first time.
II. Defendant Williams' motion to dismiss Count I (conspiracy), Counts V - VI (wire
fraud), and Counts XII - XIII (gratuities) for prosecutorial vindictiveness
 Defendant Williams was originally charged with two counts of false statements,
stood trial on those charges, prevailed on his post-conviction motion for a new trial, and
was then charged in two superseding indictments, not only with the false statements, but
also with conspiracy, wire fraud, and violation of the Meat Inspection Act. Under
controlling precedent, these facts give rise to a presumption of vindictiveness. Blackledge
v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974).
Defendant argues further--and beyond the "heartland" presumption raised by
the addition of charges after his successful post-trial motion--that the IC's conduct in
this prosecution evidences an intentional plan to make him run the gauntlet of successive
prosecutions and to wear him down financially and otherwise to force a plea of guilty and
an agreement to cooperate. This argument, which relies primarily on United
States v. Meyer, 810 F.2d 1242 (D.C.Cir.1987), vacated, 816 F.2d 695, reinstated, 824 F.2d
1240, cert. denied, 485 U.S. 940, 108 S.Ct. 1121, 99 L.Ed.2d 281 (1988), is that the
circumstances of the IC's charging decision demonstrate a "realistic likelihood of
The defendants in Meyer had been cited for demonstrating in front of the White House
without a permit. Approximately 50 of those cited chose to stand trial rather than pay the
$50 fee in satisfaction of the citation. The government then proceeded against those
defendants, charging, not only demonstrating without a permit, but also obstruction of
sidewalks in front of the White House. The district court dismissed all the charges on the
basis of prosecutorial vindictiveness, and the Court of Appeals affirmed. The court noted,
inter alia, that:
1) the prosecutor increased the charges after defendants' pre-trial assertion of a
constitutional right, 810
F.2d at 1246-47;
2) the additional charges were filed only against those defendants who chose to stand
3) the "simplicity and clarity" of the case indicated that the charges could
all have been brought from the outset, id.;
4) the prosecutor's subsequent offer to drop the second charge indicated not a gesture
of good faith (as the government argued), but an attempt to deprive defendants of their
right to a jury trial, [FN5] id.; and
FN5. The second
charge increased the defendants' criminal exposure to one year, entitling them to jury
5) "the government's motivation to act vindictively" was heightened because
the government was facing 36 protracted and potentially embarrassing trials over what it
considered petty offenses, id.
The facts of the present case give rise to a greater likelihood of vindictiveness than
in Meyer. The IC knew, and admits that it knew, every fact necessary to every charge that
has been brought against defendant Williams before the original indictment was filed, and
indeed, the IC formed the intent before proceeding to trial on the false statements
charges alone that he would later charge Williams with all of the charges he now faces.
See Ray Affidavit, ¶¶ 9, 11. [FN6]
FN6. The Chief
Associate Independent Counsel stated that he had drafted an indictment in March, 1997
(prior to the first trial) that included conspiracy, false statements, mail and wire
fraud, Meat Inspection Act, and gratuities counts against Williams. The one count that may
have been delayed by the ongoing Tyson investigation appears to be Count X, relating to
the Presidential Inaugural tickets, because the IC did not receive proof of Tyson's
involvement in the purchase of those tickets until June, 1997.
 In his rebuttal submission, the IC shows that Williams had notice, well
before the original indictment was filed, of the IC's plan to bring additional gratuities
charges, and possibly a conspiracy charge. See Trans. of Mot. Hrg., Nov. 27, 1996, at
14-16. Pre-trial notice of the intent to bring additional charges is indeed sufficient to
rebut the presumption of "heartland" vindictiveness if the alternatives are
"openly presented" to the defendant prior to his refusal of a plea bargain. Bordenkircher
v. Hayes, 434 U.S. 357, 365, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978); see also Meyer,
810 F.2d at 1248 ("the government may be able to escape the presumption
altogether by providing notice to the accused.") Moreover, although it is true that
the transcript does not expressly recite discussion of additional charges under the Meat
Inspection Act or mail and wire fraud statutes, those charges arise out of the same
conduct. See United
States v. Goodwin, 457 U.S. 368, 382, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982), observing
that prosecutors often make their initial charging decisions before researching all of the
legal and factual issues of a case and add related charges as a matter of course. [FN7]
adds a further twist in his latest submission on this topic: he focuses on the IC's
statement in open court on October 3, 1997 that he intended to go to trial on the First
Superseding Indictment. This statement was followed by a further round of failed plea
negotiations and then by additional charges in the Second Superseding Indictment. That
statement, Williams submits, negated any notice he had received regarding additional
charges and shows that his choices had not been "openly presented" in the final
round of plea negotiations, thus requiring a finding of vindictiveness relating to the
newest charges filed in the Second Superseding Indictment. However, I have trouble holding
the IC to his statement as a solemn promise. The transcript discloses, indeed, that
defense counsel was skeptical of the statement when it was made.
 The rebuttal of "heartland" vindictiveness as a matter of law under the
Bordenkircher rule does not dispose of defendant's argument that the IC intentionally put
him through successive trials in order to deplete his resources and force him into a
guilty plea/cooperation agreement, however. It is necessary to give further consideration
to the justifications offered by the IC for his actions.
The IC's first justification, that he could not bring the charges relating to
"honest services" fraud at the outset because he was still considering the
impact of recent decisions, seems to be post hoc rationalization. Both of the decisions in
question were from other circuits, and both were handed down (save for the en bane
decision in Brumley ) before the first indictment in this case. There was no unusual level
of uncertainty about the law of honest services fraud in this circuit.
The IC's second justification, that the additional charges were delayed by the IC's
ongoing investigation into Tyson Foods that was not completed until December, 1997, is not
adequately explained and is ultimately unpersuasive. With perhaps one exception, see note
6 supra, the IC's submission does not demonstrate how that investigation affected this
case (or vice versa) with regard to which charges could be brought against defendant
Williams or when they could be brought.
The only sustainable justification for the IC's tactic of proceeding against Williams
in two trials is suggested (but not stated) by the IC's admission that the original, two
count indictment was brought against Williams to pressure him into cooperating with the
Tyson investigation (and, presumably, the Espy investigation). To exert the pressure of an
indictment is undoubtedly a legitimate prosecutorial tactic. Unfortunately, that tactic
can lead to the ugly result presented in this case, since according to conventional
wisdom, a threat, once made, must be carried out in order to preserve
"credibility." In this case, however, pressing ahead to trial on the first
indictment knowing there would be another one was an arrogant demonstration of the
unlimited resources available to prosecutors appointed under the Ethics in Government Act
and grossly inconsiderate of defendant's resources (and those of the court).
Nonetheless, "the fact of multiple prosecutions, standing alone, does not prove
an abuse of prosecutorial discretion," United
States v. Pungitore, 910 F.2d 1084, 1111-12 (3rd Cir.1990), cert. denied, 500 U.S. 915,
111 S.Ct. 2009-10, 114 L.Ed.2d 98 (1991). A prosecutor's attempt to bring about a
guilty plea through otherwise legitimate means may be ham-handed without being vindictive.
v. Hayes, 434 U.S. 357, 364-65, 98 S.Ct. 663, 54 L.Ed.2d 604. [FN8]
expresses doubt about Bordenkircher 's continuing vitality given that prosecutors in
post-Guidelines cases enjoy a greatly enhanced ability to determine a defendant's sentence
through their charging decisions. I cannot decide that issue.
III. Motion to dismiss Count IX (Meat Inspection Act), Count XIII (gratuities), and
part of Count I (conspiracy) as beyond the jurisdiction of the Independent Counsel; Motion
to dismiss Counts VIII - IX (Meat Inspection Act), and XII - XIII (gratuities) for lack of
The indictment charges, both as gratuities and Meat Inspection Act violations, that
Williams gave or tried to give the Acting Assistant Secretary of Agriculture a $13
basketball ticket and an upgrade coupon for an airline flight from Memphis to Washington
National Airport. The reason for the presence of these de minimis charges in the Second
Superseding Indictment is suggested in IC Smaltz's affidavit, ¶ 20. He states that he was
concerned that I had excluded relevant evidence at the first trial and that such evidence
would "only be admitted in a gratuities prosecution." The apparent reference is
to these small gifts, which were denied admission as Fed.Rule Evid. 404(b) "other
acts" in the first trial. Defendants now move to dismiss these counts and two counts
of illegal gifts to Secretary Espy's girlfriend on the ground that the District of
Columbia is an improper venue. Williams also argues that the charges relating to the
basketball ticket and the airline upgrade are beyond the jurisdiction of the IC. I will
address the second argument first.
Motion to dismiss Counts IX, XIII, and part of Count I
Defendants' argument is that constitutional constraints placed on the Ethics in
Government Act, as well as the Act itself, prohibit construing the IC's jurisdiction
broadly enough to cover gifts to an Acting Assistant Secretary.
As the Independent Counsel is an inferior officer with narrowly defined duties, his
office is, at least in theory, limited in tenure, and he is subject to removal by the
Executive Branch. His powers are confined to investigating and prosecuting predetermined
subject matter and do not involve policy formulation. He "can only act within the
scope of the jurisdiction that has been granted by the Special Division pursuant to a
request by the Attorney General." Morrison
v. Olson, 487 U.S. 654, 672, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988).
 The powers of the Special Division are similarly circumscribed, and it is indeed
the limitation on those powers that saves the Act's constitutionality under Article III.
The Special Division is constrained to grant jurisdiction to an independent counsel only
over matters that are "demonstrably related" to the factual circumstances that
gave rise to the Attorney General's request for an independent counsel. See id. at 679-80,
S.Ct. 2597. Upon application by the Attorney General, the Special Division is to
appoint an independent counsel and define his or her jurisdiction to "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). Morrison teaches that this power is not a license to construe the
IC's jurisdiction broadly: the Special Division's authority to define the IC's
jurisdiction is drawn directly from the Attorney General's application and is merely
ancillary to its appointment powers. Section 593(b)(3) tells the Special Division that the
Independent Counsel's jurisdiction is to include all matters related to the subject matter
of the Attorney General's request, as well as crimes "arising out of" the
investigation, "including perjury, obstruction of justice, destruction of evidence,
and intimidation of witnesses." Id.; see also United
States v. Secord, 725 F.Supp. 563 (D.D.C.1989).
The Independent Counsel did not seek a referral from the Attorney General or the
Special Division to pursue the basketball ticket and the upgrade coupon, as he might have
done, and as he and other IC's did in such cases as United States v. Tucker, 78 F.3d 1313
(8th Cir.), cert. denied, ---
U.S. ----, 117 S.Ct. 76, 136 L.Ed.2d 35 (1996); United
States v. Blackley, 986 F.Supp. 607 (D.D.C.1997); United
States v. Crop Growers Corp., 954 F.Supp. 335 (D.D.C.1997); and United
States v. Sun-Diamond Growers of California, 941 F.Supp. 1262 (D.D.C.1996). The
question is thus whether prosecution for gifts given to the Acting Assistant Secretary is
within the terms of the IC's original grant of jurisdiction.
The language of the original grant is quite specific. The Independent Counsel has
jurisdiction to investigate "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." The Independent Counsel may also investigate "other allegations or
evidence of violations 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" (emphasis added).
re Espy, 80 F.3d 501 (D.C.Cir.1996), the Special Division, using its powers under s
594(e), determined that the IC has jurisdiction to prosecute matters related to gifts
given to Secretary Espy's chief of staff:
IC Smaltz maintains that the referral matter directly overlaps his current
jurisdiction in terms of persons involved, witnesses, patterns of conduct, and applicable
law, and that the factual basis of the referral matter arose directly from his
investigation of whether Secretary Espy violated 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. While he concedes that the original
jurisdictional mandate makes no specific mention of the precise factual matters underlying
his referral request, IC Smaltz explains that they share the common foundation of improper
influence exerted in connection with items pending before the Department of Agriculture in
return for favors or gifts to Secretary Espy or those close to him, suggesting an ongoing
pattern of such dealings, and that certain close associates of Secretary Espy are deeply
involved in all of these matters.
Id. at 508. That determination, if I am bound by it, [FN9] requires analysis at least
of whether the Acting Assistant Secretary was someone "close to" Secretary Espy.
Given Morrison 's teaching that the IC's jurisdiction must be interpreted narrowly, this
would be a thorny task indeed. But, since Counts IX and XIII have been dismissed for
improper venue, it is a task that need not be accomplished at this time.
FN9. It is not
entirely clear that the Special Division's interpretation of the Independent Counsel's
jurisdiction is binding on this court. The Court in Morrison labeled the Special
Division's power to define the IC's jurisdiction under s 594(e) as "incidental"
to its appointment power--which, presumably, means that the Special Division in In re Espy
was not deciding an Article III case or controversy.
Motion to dismiss Counts VIII, IX, XII, and XIII
Defendants argue that these four counts improperly seek to lay venue in the District
of Columbia for offenses that did not occur here. The IC responded that this motion was
"frivolous." At oral argument, I asked for a proffer supporting the venue claim
as to Counts IX and XIII. Having reviewed this material in camera and ex parte, I conclude
that the motion as to Counts IX and XIII is not frivolous but, indeed, well founded.
 Venue to prosecute a criminal act lies in the district where the act was
begun, continued or completed. 18
U.S.C. s 3237(a); see also Goodloe
v. United States, 188 F.2d 621 (D.C.Cir.1950), cert. denied, 342 U.S. 819, 72 S.Ct. 35, 96
L.Ed. 619 (1951). For a Meat Inspection Act offense, venue lies where defendants
"give, pay, or offer, directly or indirectly," a thing of value to a covered
person under the Act.
21 U.S.C. s 622. For a gratuities offense, venue lies where defendants "give,
offer, or promise" a thing of value to a public official. 18
U.S.C. s 201(c)(1)(A); see also United
States v. North, 910 F.2d 843 (D.C.Cir.1990), superseded in part, 920
F.2d 940, cert. denied, 500 U.S. 941, 111 S.Ct. 2235, 114 L.Ed.2d 477 (1991). The
district where the official act sought to be influenced by a gratuity or other thing of
value was performed or was to be performed is not a proper venue unless the offense was
begun, continued, or completed there. See United
States v. White, 887 F.2d 267 (D.C.Cir.1989). It is the government's burden to prove
venue as to each count by a preponderance of the evidence, and, if the evidence is
sufficient, venue is normally a question that is submitted to the jury. See United
States v. Lam Kwong-Wah, 924 F.2d 298 (D.C.Cir.1991).
 Count VIII alleges that the defendants violated the Meat Inspection Act by
providing a "[w]eekend football trip to Dallas, Texas, including airfare, limousines,
parking, pregame brunch, food and drink, and skybox tickets to the Dallas Cowboys--Green
Bay Packers NFL playoff game," "to and for the benefit of" Secretary Espy.
¶ 31. Count XII alleges that the identical things of value were provided "to and for
the benefit of" Secretary Espy in violation of the gratuities statute. See ¶ 33.
Both counts also incorporate the allegations of ¶ 25, including that the tickets were
delivered to the girlfriend at her home in Washington, D.C.
The question of whether the gifts to Secretary Espy's girlfriend provided things of
value to Secretary Espy is dealt with in part V of this opinion, infra. The subsidiary
question, of where the value was given when the Secretary met his girlfriend in Dallas, is
not dispositive of the venue question, because the indictment charges that the tickets
were physically given to the Secretary's girlfriend in Washington D.C. on January 13,
1994. See ¶ 25(d). If there were violations, they may have been completed in Dallas, but
the indictment properly charges that they were begun, or perhaps continued, in the
District of Columbia.
 Counts IX and XIII are different. They charge defendants with providing the
Acting Assistant Secretary with a "[s]kybox seat at [a] University of
Arkansas-Vanderbilt University college basketball game and [a] first class upgrade of
[her] airline ticket" in violation of the Meat Inspection Act and gratuities statute.
¶¶ 31 & 33.
It is beyond dispute--and indeed, the Independent Counsel barely tries to engage in
one--that the first-class upgrade was given to the Acting Assistant Secretary in
Nashville. Nothing in the indictment suggests that the upgrade was offered or promised in
Washington, D.C. As to the basketball ticket, the only connection with the District of
Columbia appears in the allegation that defendant Williams spoke with the Acting Assistant
Secretary in D.C., "offered to obtain" a basketball ticket for her, and
discussed the itinerary for her travel to Arkansas to meet with Tyson Foods officials. See
¶ 25(e)(i)(ii). Nothing in the government's proffer would enable a reasonable juror to
infer that the offer was of a free ticket. [FN10]
FN10. The IC
also asserts that "[i]f necessary, [it] will prove at trial that flights taking off
from and arriving at National Airport necessarily travel through the District of
Columbia," Gov't Opp. at 17, and he cites United
States v. Ramirez-Amaya, 812 F.2d 813 (2d Cir.1987). That case involved drug
trafficking. The express provision of
IV. Motion to dismiss Count X (gratuities) and part of Count I (conspiracy) for
failure to state an offense
 The charge that four tickets to President Clinton's 1993 inaugural was an illegal
gratuity to Secretary Espy will presumably be defended at trial on the ground that it was
not given for or because of any official act performed or to be performed. The challenge
raised by motion is that Secretary Espy was not a person covered by the gratuities
The gratuities statute makes it a crime to give a thing of value to a "person
selected to be a public official." 18
U.S.C. s 201(c)(1)(A). The statute defines a "person selected to be a public
official" as "any person who has been nominated or appointed to be a public
official, or has been officially informed that such person will be so nominated or
U.S.C. s 201(a)(2). Defendants argue that "officially informed" must mean,
in the case of a Cabinet officer, informed by the President, acting as President, or the
word "officially" will be rendered meaningless. See Wilson
v. Block, 708 F.2d 735, 751 (D.C.Cir.), cert. denied, 464 U.S. 956, 104 S.Ct. 371, 78
L.Ed.2d 330 (1983). Since the tickets were allegedly given on January 18, 1993, and
President Clinton could not have "officially" done anything as President until
he was inaugurated on January 20, 1993, defendants say the inaugural gratuities counts
The IC's response that the Presidential
Transition Act of 1963, 3 U.S.C. s 102, confers "official" status on a
President-elect is unavailing. That Act provides money and office space to the
President-elect's transition team, but does not--and cannot--deem any of the
President-elect's actions "official" before he or she complies with the Oath and
Affirmation Clause. The gratuities statute does not require, however, that it be the
President who "officially" informs a Cabinet officer of his prospective
nomination. Congress held hearings on the Espy nomination as early as January 14, 1993.
See 139 Cong.Rec. D43-03. If someone acting in an official capacity informed Secretary
Espy of his impending nomination before January 18, 1993, the statutory element of
official notice is satisfied.
V. Motion to dismiss Count V (wire fraud), Counts VII - VIII (Meat Inspection Act),
Counts XI - XII (gratuities), and part of CountI (conspiracy), for failure to state an
 This motion asserts that defendants may not be criminally charged for providing
things of value (travel expenses and educational assistance) to Secretary Espy's
girlfriend; neither the gratuities statute nor the Meat Inspection Act prohibit gifts to
third parties. While both statutes prohibit the "provision of any thing of value,
directly or indirectly" to a covered official, neither includes the additional phrase
"or to a third party" that is found in the bribery statute. Compare 18
U.S.C. s 201(c)(1)(A) and 21 U.S.C.
s 622 with 18
U.S.C. s 201(b)(1). Thus, defendants argue, Congress knows how to criminalize gifts to
third parties, but has expressly declined to do so in the context of either the gratuities
statute or the Meat Inspection Act. The IC responds that the things of value given to the
Secretary's girlfriend were "indirect" gifts to him, and that it is for the jury
to determine whether they were "things of value" to him.
The government's position is well supported: the term "thing of value" is to
be broadly construed to encompass intangible benefits, so long as the jury is instructed
that they must determine whether the donee placed any value on the intangible gifts. See,
States v. Sun-Diamond Growers of California, 941 F.Supp. at 1269-70; see also, United
States v. Gorman, 807 F.2d 1299, 1305 (6th Cir.1986), cert. denied, 484 U.S. 815, 108
S.Ct. 68, 98 L.Ed.2d 32 (1987).
 But, defendants argue, even intangible benefits must have been given to a covered
official in order to be unlawful. A gift of intangible companionship might be a crime, the
argument goes, but this indictment does not charge that defendants provided the Secretary
with companionship. It charges that they provided his girlfriend with travel expenses and
educational assistance. The IC does not respond to this nuance of defendants' argument,
but the argument fails: in each of the four substantive counts at issue (VII, VIII, XI and
XII) under the column labeled "thing of value," the word "Espy"
appears in bold type preceding the description of the gift at issue. Although the
indictment would read more clearly if it had a separate "recipient" column, it
sufficiently charges that the gifts were given "to" the Secretary, at least as a
matter of pleading. It is for the jury to determine whether Secretary Espy placed any
value on the provision of gifts to his girlfriend.
After a pretrial conference held today, and upon further consideration of defendants'
motion to dismiss the Meat Inspection Act counts (Counts VII and VIII) of the second
superseding indictment for failure to state an offense, it is this 29th day of May, 1998,
ORDERED that the motion to dismiss the Meat Inspection Act counts [# 153] is denied.
FURTHER ORDERED that the oral motion of defendant Schaffer to sever the Meat
Inspection Act counts is denied. It is
FURTHER ORDERED that the oral motion of defendant Williams for a continuance of the
trial is denied. And it is
FURTHER ORDERED upon review of the materials submitted by counsel for defendant
Williams and represented to be a complete printout of the contents of a website created
and maintained by the Independent Counsel, and that the motion of defendant Williams for
an order directing the Independent Counsel to take down the website is denied, although
the Court does note with surprise that the section entitled "summary of prosecutions
to date" contains a remarkably misleading statement of the reason why the verdict in
the first Williams trial was set aside and further notes the absence, from the section
entitled "selected briefs and court opinions," of this Court's memorandum of
June 11, 1997, setting forth the real reason.