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    ORAL ARGUMENT SCHEDULED FOR MARCH 25, 1998

   

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

___________________________________________

No. 98-3001

___________________________________________

UNITED STATES OF AMERICA

Appellant

versus

ALPHONSO MICHAEL ESPY

Defendant-Appellee

___________________________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

___________________________________________

REPLY BRIEF FOR APPELLANT

___________________________________________

    DONALD C. SMALTZ

    Independent Counsel

    THEODORE S. GREENBERG

    Deputy Independent Counsel

    CHARLES M. KAGAY

    Chief Appellate Counsel

    JOSEPH P. GUICHET

    Associate Independent Counsel

    Office of Independent Counsel

    103 Oronoco Street, Suite 200

    Alexandria, VA 22314

    (703) 706-0010

   

TABLE OF CONTENTS

   

TABLE OF AUTHORITIES ii
GLOSSARY vi
STATEMENT REGARDING STATUTES AND REGULATIONS vi
SUMMARY OF THE ARGUMENT 1
ARGUMENT 2
I. THE INDICTMENT PROPERLY CHARGED VIOLATIONS OF THE MEAT INSPECTION ACT 2
A. The Meat Inspection Act Expressly Prohibits the Secretary of Agriculture from Accepting a Gratuity 2
B. There Is No Constitutional Impediment to Interpreting the Meat Inspection Act as Written 10
II. THE INDICTMENT PROPERLY CHARGED VIOLATIONS OF 18 U.S.C. 1001 14
A. Defendant Lied to a "Department" of the United States 14
B. Defendant Lied to an "Agency" of the United States 16
C. Count 39 Is Not "Fatally Vague" 20
III. CONCLUSION 25

TABLE OF AUTHORITIES(1)

    Cases

*Alexander v. Federal Bureau of Investigation, 971 F. Supp. 603 (D.D.C. 1997)
19
*American Mining Congress v. U.S. EPA, 824 F.2d 1177 (D.C.
Cir. 1987)
3
Armstrong v. Executive Office of the President, 1 F.3d 1274 (D.C. Cir. 1993) 17
Armstrong v. Executive Office of the President, 90 F.3d 553 (D.C. Cir. 1996) 17
Bazuaye v. United States, 83 F.3d 482 (D.C. Cir. 1996) 8
Bowsher v. Synar, 478 U.S. 714 (1986) 10, 11
*Brogan v. United States, ___ U.S. ___, 1998 WL 23151 (1998) 4, 14, 19
Bronston v. United States, 409 U.S. 352 (1973) 24
Chapman v. United States, 500 U.S. 453 (1991) 13
Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) 3
Cole v. Burns International Security Services, 105 F.3d 1466 (D.C. Cir. 1997) 8
Crandon v. United States, 494 U.S. 152 (1990) 3, 4
Halperin v. CIA, 629 F.2d 144 (D.C. Cir. 1980) 21
*Hubbard v. United States, 514 U.S. 695 (1995) 14-15
Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136 (1980)
17
Moore v. U.S. House of Representatives, 733 F.2d 946 (D.C. Cir. 1984) 12
*Morrison v. Olson, 487 U.S. 654 (1988) 10, 11
National Security Archive v. Archivist of the United States, 909 F.2d 541 (D.C. Cir. 1990) 17
Russell v. United States, 369 U.S. 749 (1962) 21
Salinas v. United States, __ U.S. __, 118 S.Ct. 469 (1997) 13
Sweetland v. Walters, 60 F.3d 852 (D.C. Cir. 1995) 18
United States v. Butler, 822 F.2d 1191 (D.C. Cir. 1987) 21
United States v. Chapin, 515 F.2d 1274 (D.C. Cir. 1975) 24
United States v. Conlon, 628 F.2d 150 (D.C. Cir. 1980) 21
United States v. Debrow, 346 U.S. 374 (1953) 21
United States v. Ehrlichman, 379 F.Supp. 291 (D.D.C. 1974) 24
United States v. Gatling, 96 F.3d 1511 (D.C. Cir. 1996) 22
United States v. Gilliland, 312 U.S. 86 (1941) 19
*United States v. Haldeman, 559 F.2d 31 (D.C. Cir. 1976) 16, 17, 25
United States v. Jackson, 390 U.S. 570 (1968) 12
United States v. Lemire, 720 F.2d 1327 (D.C. Cir. 1983) 23
United States v. Manapat, 928 F.2d 1097 (11th Cir. 1991) 24
*United States v. Mescall, 215 U.S. 26 (1909) 9
United States v. Mullens, 583 F.2d 134 (5th Cir. 1978) 5
United States v. Poindexter, 951 F.2d 369 (D.C. Cir. 1991) 23
United States v. Pollack, 534 F.2d 964 (D.C. Cir. 1976) 21
United States v. Ryan, 828 F.2d 1010 (3d Cir. 1987) 24
United States v. Seuss, 474 F.2d 385 (1st Cir. 1973) 5
United States v. Thomas, 114 F.3d 228 (D.C. Cir. 1997) 13
United States v. Vessas, 586 F.2d 101 (8th Cir. 1978) 23
United States v. Vigil, 743 F.2d 751 (10th Cir. 1984) 12
United States v. Wells, ___ U.S. ___, 117 S.Ct. 921 (1997) 13
United States v. Whitehorn, 710 F. Supp. 803 (D.D.C. 1989), rev'd on other grounds sub nom. United States v. Rosenberg, 888 F.2d 1406 (D.C. Cir. 1989)
21

   Statutes

   *18 U.S.C. 1001 1, 15, 19-20, 22, 23
   18 U.S.C.  207 20
   *18 U.S.C.  6 14, 20
   21 U.S.C.  603 4, 6
   21 U.S.C.  604 4, 6
   21 U.S.C.  606 6
   21 U.S.C.  607(c) 7
   21 U.S.C.  608 4, 6
   21 U.S.C.  609 4, 6
   21 U.S.C.  612 4
   21 U.S.C.  615 4, 6
   21 U.S.C.  616 6
   21 U.S.C.  621 6, 6
   *21 U.S.C.  622 2, 6-8, 10, 11
   5 U.S.C.  551 et seq. 17
   5 U.S.C.  552(f) 20
5 U.S.C.  552a 19
Pub. L. No. 59-242, 34 Stat. 1256 (1907) 5

   Rules

   Rule 7, Federal Rules of Criminal Procedure 16
   Rule 7(c), Federal Rules of Criminal Procedure 17

   Miscellaneous

*Executive Order No. 12674, 54 F.R. 15159 (1989), as amended by Executive Order No. 12731, 55 F.R. 42547 (1990) 20
Freedom of Information Act Guide and Privacy Act Overview, U.S. Dep't of Justice (Sept. 1997 ed.) 18
Webster's II New Riverside University Dictionary (1994) 2

   GLOSSARY

   

EOP Executive Office of the President
FOIA Freedom of Information Act

STATEMENT REGARDING STATUTES AND REGULATIONS

   Pursuant to Local Rule 28(a)(5) of the United States Court of Appeals for the District of Columbia Circuit, all pertinent statutes and regulations are set forth in the addendum bound with this brief.

SUMMARY OF THE ARGUMENT

   Defendant presents no reason for departing from the Meat Inspection Act's clear prohibition against the Secretary of Agriculture's receiving gratuities, since he is "an officer . . . of the United States authorized to perform any of the duties prescribed" by the Act. Nothing in the statute's language or history justifies excluding the Secretary, and in the absence of ambiguity, there is no occasion to apply the doctrine of ejusdem generis. The question of the Act's constitutionality does not even arise where, as here, conviction cannot result in the dismissal of a sitting Secretary.

   Defendant likewise cannot justify the dismissal of the charge under 18 U.S.C.  1001. The statute was intended to prohibit false statements to the Executive Branch as a whole, and also to prohibit false statements to "agencies," which includes the Executive Office of the President. Finally, the false statement count more than adequately apprized defendant of the facts behind the charge for which he was indicted.

ARGUMENT

   I. THE INDICTMENT PROPERLY CHARGED VIOLATIONS OF THE MEAT INSPECTION ACT

    A. The Meat Inspection Act Expressly Prohibits the Secretary of Agriculture from Accepting a Gratuity

   The clear language of 21 U.S.C.  622 unequivocally defeats the district court's interpretation of the statute. The law forbids the receipt of gratuities by an "officer or employee of the United States authorized to perform any of the duties prescribed by this subchapter," and defendant tortures the language beyond the breaking point to suggest, as he must, that the Secretary of Agriculture is not an officer of the United States authorized to perform any duties prescribed by the Act.(2) Defendant must therefore look somewhere other than the statute to justify the dismissal of the Meat Inspection Act counts.

   Defendant boldly assaults the plain language of the statute by citing cases for the proposition that statutes should be interpreted with an eye to "the design of the statute as a whole," or "the context" in which it was enacted, or the legislative history. These are all legitimate tools of statutory construction. However, as defendant's authorities all acknowledge, these secondary tools cannot defeat the plain meaning of the language used; they are means of addressing ambiguity in the wording and a serious dissonance between the literal meaning of the language and the evident congressional purpose. See, Crandon v. United States, 494 U.S. 152, 159, 168 (1990) (statute to be read literally, despite "the awkward drafting of the paragraphs," because "this case presents none of the 'rare and exceptional circumstances' that may justify a departure from statutory language."); American Mining Congress v. U.S. EPA, 824 F.2d 1177, 1182 (D.C. Cir. 1987), quoting Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-843 ("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.").

   Defendant's lengthy discourse on the context and purpose of the Meat Inspection Act as a whole, and section 622 in particular, are ultimately to no avail, because application of the statute to the Secretary does no violence to the Act's purpose - which, according to defendant, was to "ensure a high level of cleanliness and safety in meat products." Brief for Appellee at p. 7. Since the Secretary causes the inspections to be made, promulgates rules and regulations for the inspections, reports the results to Congress, and regulates the program as a whole, forbidding the Secretary to receive gratuities can only advance the cause of sanitary meat. This is sufficient ground for the court to require that the statute be applied as written:

   It is not our function to express either approval or disapproval [of the statute as written by Congress.] We note only that a literal reading of the statute . . . is consistent with one of the policies that motivated the enactment of the statute.

   Crandon v. United States, 494 U.S. at 168.

   In the final analysis, it would be of no consequence even if defendant were correct in asserting that Congress only focused on the act of meat inspection when it drafted the statute. Earlier this year, in Brogan v. United States, __ U.S. ___, 1998 WL 23151, p. 3, (1998), the Supreme Court reiterated that there is no inconsistency between the proposition that Congress intended to address a limited evil and the proposition that the resulting statute forbids a broader set of practices. Id. In the words of the Supreme Court, "the reach of a statute often exceeds the precise evil to be eliminated." Id.

   Nevertheless, defendant tries to defend, without authority, the district court's countertextual interpretation of the statute. He begins by asserting that Congress attempted, in the statute, to draw a bright line between the Secretary, for whom the Act prescribes numerous duties, and meat inspection. But the statute belies such a distinction, since it provides repeatedly that the Secretary "shall cause [inspections] to be made." See 21 U.S.C.  603(a), 603(b), 604, 608, 609, 612, 615. Congress in enacting the statute could not have recognized defendant's fine delineation between the Secretary's role and the inspection function, since the original wording of the statute included the following: "[T]he provisions of this Act requiring inspection to be made by the Secretary of Agriculture shall not apply to animals slaughtered by any farmer on the farm . . . ." Pub. L. No. 59-242, 34 Stat. 1256, 1265 (1907) (Addendum to Brief for Appellee, Tab A) (emphasis added).

   Certainly, earlier cases such as United States v. Mullens, 583 F.2d 134 (5th Cir. 1978), and United States v. Seuss, 474 F.2d 385 (1st Cir. 1973), hold that the Act forbids meat inspectors to receive gratuities. But defendant grossly mischaracterizes these cases when he claims that they require that "the gifts must be connected to the recipient's performance of prescribed inspection duties." Brief for Appellee at p. 7 (emphasis added). Rather, the cases impose the requirement that the acceptance of gratuities must be "in connection with or arising out of the performance of . . . official duties." Mullens, 583 F.2d at 141; Seuss, 474 F.2d at 388 (emphasis in originals). These cases do not hold, either directly or implicitly, that the statute does not apply with equal force to the Secretary.

   Likewise, the fact that no previous Secretary has been prosecuted under the statute tells us nothing about the reach of the Act, absent a showing that an earlier Secretary could have been, but was not, prosecuted because he fell outside the statutory terms. Similarly, the fact that meat inspectors are required to "perform such other duties as are provided by this subchapter and by the rules and regulations to be prescribed by the Secretary," 21 U.S.C.  621, does not imply in any way that the Secretary does not also have duties prescribed by the Act.(3)

   Like the district court, defendant finds it significant that certain other provisions of the Act (21 U.S.C.  603, 604, 606, 608, 609, 615, 616, and 621), unlike section 622, mention the Secretary by name. But those sections, unlike section 622, specifically prescribe for the Secretary a duty that is his alone, and could not do so without naming him. The obligation of section 622 falls not just on the Secretary, but rather on numerous officers and employees, and therefore can be described without naming him specifically.

   Straining even further to defeat the language of the Act, defendant attacks the Government's purported contention that section 622 extends to "any officer or employee of the United States with any role under the Act," because this would supposedly sweep the Secretary of Health and Human Services into the prohibition. Brief for Appellee at pp. 11-12. But, of course, the Government does not contend that section 622 applies to officers and employees "with any role under the Act"; by its clear terms, it applies to officers and employees "authorized to perform duties prescribed" by the Act. The Act does not authorize the Secretary of Health and Human Services to perform duties prescribed by the Act. Rather, Section 607(c) gives the Secretary of Agriculture the power to set standards for the labeling of meat, and simply provides that "there shall be consultation between the Secretary and the Secretary of Health and Human Services prior to the issuance of such standards . . . ."

   Finally, defendant argues that Congress could not have intended for section 622 to apply to the Secretary of Agriculture, because other provisions of law relating to gratuities apply to him and all other Cabinet officers. But, of course, those other provisions apply to meat inspectors as well, who are not for this reason excused from the operation of section 622. Congress had a clear policy rationale for subjecting officers and employees whose work impacts the safety of meat to stricter gratuity laws than other government personnel, and that rationale applies with even greater force to the Secretary of Agriculture than to line inspectors.

   This leaves defendant with nothing but the doctrine of ejusdem generis as an excuse for rewriting the statute. Defendant apparently concedes that the doctrine can be invoked only where there is uncertainty as to the meaning of a clause in the statute. Brief for Appellee at p. 15, n. 8. To find such an ambiguity, defendant boldly asserts that "there is at a minimum a facial ambiguity as to whether 'duties prescribed by the subchapter' refers to meat inspection duties or some broader category." Id. This assertion is bold in particular because it miscites section 622, which refers to "any of the duties prescribed by this subchapter." Defendant cannot justify reading "any of the duties" as a "facially ambiguous" phrase that might actually mean "some but not all of the duties."

   In the two decisions of this court upon which defendant relies - Bazuaye v. United States, 83 F.3d 482 (D.C. Cir. 1996), and Cole v. Burns International Security Services, 105 F.3d 1466 (D.C. Cir. 1997), this court applied the doctrine of ejusdem generis to rein in statutes that, if interpreted literally, would have been impossibly broad. In Bazuaye, the final item in the phrase "any officer of customs or excise or any other law-enforcement officer" would have swept up every law enforcement officer in the nation; in Cole, the final item in the phrase "contracts of employment of seamen, railroad employees, or any other class or worker engaged in foreign or interstate commerce" would have exempted almost every employee in the country from the Federal Arbitration Act. But here the questioned phrase - "other officer or employee of the United States authorized to perform any of the duties prescribed by this subchapter" - does not purport to embrace a set of employees wildly disproportionate to those specifically identified.

   The fundamental problem of the application of ejusdem generis is that, if Congress meant for the statute to apply to nothing but meat inspectors, then it made no sense to add the final phrase at all. As defendant apparently concedes, ejusdem generis cannot be invoked where it would cause the narrow terms in the statute to exhaust the category described. United States v. Mescall, 215 U.S. 26 (1909). Defendant's way around this problem is to assert that Congress wanted the statute to apply to people with a variety of job titles. Brief for Appellees at p. 15. But since all of the job titles to which defendant points identify people who inspect meat, defendant's assertion does nothing to solve the problem that the phrase "meat inspector" in the statute would exhaust the category.

   Defendant suggests that Congress wanted the statute to apply to a broad set of people identified as "persons employed in such inspections," listed in a report issued by the Secretary of Agriculture shortly after the Act was passed.(4) Brief for Appellee at p. 15, n. 9. Defendant places great significance in the fact that the initial list of such employees did not include the Secretary of Agriculture.(5) Id. The list does, however, include among the "persons employed in such inspections" employees carrying the titles of "clerk," "messenger," "messenger boy," and "charwoman." James Wilson, Dept. of Agriculture, Persons Employed under the Meat Inspection Law, H.R. Doc. 59-759, at p. 70 (1907) (2nd Sess.), reprinted in 53 House Documents Serial No. 5156 (1906-07) (Addendum to Brief for Appellee at Tab B).

   Thus, the court is faced with two competing interpretations of whom Congress included within the sweep of section 622. According to the Government, it included meat inspectors and their deputies and chiefs, and the other officers and employees who, like the Secretary, have duties prescribed by the Act, and therefore can affect the safety of meat sold to the public. According to defendant, it included meat inspectors and their deputies and chiefs, as well as messenger boys and charwomen and others tangentially involved in the meat inspection process, but excluded the Secretary, who has vital duties prescribed by the Act. This choice starkly outlines the illogic of defendant's position.

    B. There Is No Constitutional Impediment to Interpreting the Meat Inspection Act as Written

   Because the statute has a summary discharge provision, defendant claims that it runs afoul of Bowsher v. Synar, 478 U.S. 714, 722 (1986), which held that Congress cannot keep for itself the power to discharge an executive officer. (In Bowsher, Congress had retained the power to fire the Comptroller General, an executive position.) As is typical in overreaching, the argument proves too much. Bowsher held that Congress could not retain the power to discharge a government official who participates in "executive powers." Morrison v. Olson, 487 U.S. 654, 685 (1988). However, all meat inspectors exercise "executive powers" - they are, after all, enforcing the law - so that under defendant's interpretation, the summary discharge clause of section 622 also could not apply to meat inspectors, the only employees defendant recognizes as within the Act.

   The solution to this seeming dilemma is, of course, that Congress has not retained any power to discharge an officer; it has instead stipulated that if the executive successfully prosecutes someone under the Act, that person will lose his job. As the Supreme Court observed with respect to the Independent Counsel law, "[u]nlike . . . Bowsher . . . , this case does not involve an attempt by Congress itself to gain a role in the removal of executive officials other than its established powers of impeachment and convictions. The Act instead puts the removal power squarely in the hands of the Executive Branch . . . ." Morrison v. Olson, 487 U.S. at 686. The Act therefore does not intrude on the separation of powers doctrine, and does not run afoul of Bowsher.

   But defendant's constitutional argument cannot even arise here because this prosecution will not result in the discharge of any government official. Defendant characterizes this as an issue of "standing," hoping to invoke the principle that a criminal defendant has standing to challenge the constitutionality of a statute under which he is charged. However, he ignores the even more fundamental proposition that a defendant has standing to challenge the constitutionality of a statute only where he, and not someone else, suffers actual legal injury from the claimed unconstitutionality. United States v. Vigil, 743 F.2d 751, 758 (10th Cir. 1984). See, Moore v. U.S. House of Representatives, 733 F.2d 946, 950 (D.C. Cir. 1984) (to justify standing to raise constitutional claim, "the claimant's injury must fall within the zone of interests protected by the constitutional provision allegedly violated.") Therefore, while a sitting Secretary might have standing to raise the issue because he would be threatened with the loss of his job, a former Secretary does not.

   The real problem with defendant's position is not simply one of standing; the constitutionality issue does not arise at all in a prosecution in which no one is threatened with dismissal. Thus, there is no occasion here for the court to exercise what defendant characterizes as the "extreme measure" of severing the discharge provision. The Government does not suggest that the court should excise the summary dismissal provision from the statute for any future prosecution under the Act. Rather, if and when a sitting Secretary is ever charged under the statute, the court can then consider whether it is necessary in that case to impose one of the sanctions of the statute (the felony punishment) but to withhold the other (dismissal), as the Supreme Court did in United States v. Jackson, 390 U.S. 570, 585 (1968).

   Certainly the court should avoid constitutional problems where it can, Public Citizen v. U.S. Department of Justice, 491 U.S. 440, 465 (1989), but this case raises no constitutional issues for the court to avoid. Nevertheless, defendant urges this court, like the district court, to wade into constitutional thickets that have nothing to do with the present case. Constitutional issues can arise only if the court indulges defendant's request that it embark on the side excursion of considering what might happen in a hypothetical prosecution of some future sitting Secretary. The court can best avoid constitutional difficulties by declining this invitation.

   Finally, defendant asks this court to excuse his behavior though an invocation of the "rule of lenity." "[H]owever, the rule of lenity is only applicable where there is a grievous ambiguity or uncertainty in the language and structure of the Act, such that even after a court has seize[d] everything from which aid can be derived, it is still left with an ambiguous statute." Chapman v. United States, 500 U.S. 453, 463 (1991); United States v. Thomas, 114 F.3d 228, 271 (D.C. Cir. 1997). It can be applied only where the ambiguity is such that the court "can make no more than a guess as to what Congress intended." United States v. Wells, ___ U.S. ___, 117 S.Ct. 921, 931 (1997). Here, the phrase "other officer or employee of the United States authorized to perform any of the duties prescribed by this subchapter" is not in the least ambiguous - let alone grievously ambiguous - so as to justify application of the doctrine. The rule cannot be used to force an extratextual limitation on a statute whose terms are clear. Salinas v. United States, __ U.S. __, 118 S.Ct. 469, 478 (1997).

   Notwithstanding defendant's bald assertion to the contrary (Brief for Appellee at p. 23, n. 16), the "rule of lenity" argument is wholly foreclosed by the Supreme Court's decision last month in Brogan v. United States, 1998 WL 23151 (1998). While the Court there acknowledged that it is appropriate to read into a statute background interpretive principles of general application (such as the requirements of mens rea), "it is quite another [thing] to espouse the broad proposition that criminal statutes do not have to be read as broadly as they are written, but are subject to case-by-case exceptions." Id. at p. 4. Thus, "[c]ourts may not create their own limitations on legislation, no matter how alluring the policy arguments for doing so . . . ." Id. at p. 5. As that is precisely what the district court did here, its dismissal of the Meat Inspection Act counts of the Indictment must be reversed.

   II. THE INDICTMENT PROPERLY CHARGED VIOLATIONS OF 18 U.S.C.  1001

    A. Defendant Lied to a "Department" of the United States

   On the question of whether 18 U.S.C. 1001's use of the term "department" encompasses the entire Executive Branch, or only certain enumerated departments (the two possibilities allowed by 18 U.S.C.  6), defendant confines his analysis to Hubbard v. United States, 514 U.S. 695 (1995). Hubbard held that, in the context of  1001, "department" did not mean the Judicial Branch, noting the lack of

   any indication that Congress even considered whether [ 1001] might apply outside the Executive Branch, much less that it affirmatively understood the new enactment to create broad liability for falsehoods in the federal courts. In light of this vacuum, it would be curious indeed if Congress truly intended [ 1001] to work a dramatic alteration in the law governing misconduct in the court system or the Legislature.

   Id. at 707-708 (emphasis in original).

   However, even if the court confines its inquiry to Hubbard, as defendant does, the conclusion is inescapable that  1001 uses the term "department" to mean the Executive Branch. While the Supreme Court in Hubbard found that the term "department" did not mean the Judicial Branch, it tipped its hand in the other direction with regard to the Executive Branch. In particular, the Court analyzed in detail the amendments that became the version of  1001 under scrutiny in this prosecution. Id. at 706-708. The Court considered two possible meanings for the language in question:

   Congress . . . inserted the requirement that the false statement be made "in any matter within the jurisdiction of any department or agency of the United States." This addition, critical for present purposes, is subject to two competing inferences. On one hand, it can be read to impose new words of limitation - whose ordinary meaning connotes the Executive Branch - in an altogether reformulated statute. On the other hand, it can be viewed as . . . not disturbing the pre-existing breadth the statute enjoyed . . . .

   Id. at 706 (emphasis added).

   The whole point of Hubbard was that the Court rejected the second inference as "unsound." Id. It thus accepted the alternative inference, which is that the wording of the statute that Congress chose is one "whose ordinary meaning connotes the Executive Branch." This is the straightforward interpretation of the statute that the district court rejected.

    B. Defendant Lied to an "Agency" of the United States

   Section 1001 prohibits false statements made in any matter within the jurisdiction of a department or agency, but the district court failed even to consider whether the Executive Office of the President ("EOP") was an "agency" within the meaning of the statute. Defendant asks this court likewise to ignore this issue, because the Indictment did not affirmatively state that the EOP is an agency.

   This argument simply misconstrues the requirements of Rule 7 of the Federal Rules of Criminal Procedure. The purposes of the indictment are to apprize the accused of the charges against him so he can prepare his defense, and to describe the crime with sufficient specificity that he can avoid double jeopardy. United States v. Haldeman, 559 F.2d 31, 123 (D.C. Cir. 1976). Here the Indictment informs defendant that he is charged with making false statements in a matter within the jurisdiction of the EOP, through statements made to the President's Chief of Staff and Counsel. Indictment at  46 (App. at p. 61).

   Defendant's criticism of the Indictment, though, is not that it failed to apprise him of these facts, but rather that it failed to make the purely legal assertion that the EOP is an "agency" within the meaning of  1001. The Government, however, is not required to make such legal assertions in an indictment. As this court noted in Haldeman, 559 F.2d at 123, the rules only require the following:

    The indictment . . . shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. . . . It need not contain . . . any other matter not necessary to such statement.

   Rule 7(c), Federal Rules of Criminal Procedure (emphasis added).(6)

   Defendant relies exclusively on cases decided under the Freedom of Information Act, 5 U.S.C.  551 et seq. ("FOIA"), to argue that the EOP is not an "agency" within the meaning of  1001. This is a very convenient line of authority for defendant to adopt, because, although the FOIA definition of "agency" expressly includes the EOP, the Supreme Court has held that the term does not include the President's immediate personal staff and units within the EOP whose sole function is to advise and assist the President. Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 156 (1980). Defendant's cases Armstrong v. Executive Office of the President, 1 F.3d 1274 (D.C. Cir. 1993), Armstrong v. Executive Office of the President, 90 F.3d 553 (D.C. Cir. 1996), and National Security Archive v. Archivist of the United States, 909 F.2d 541 (D.C. Cir. 1990), simply reach the same result.

   The problem with this analysis is that FOIA serves completely different purposes from section 1001, and to serve these purposes it has its own completely separate definition of the term "agency." Thus, the authorities upon which defendant relies are demonstrably inapplicable to the question before this court.(7)

   Congress enacted the Freedom of Information Act to provide an "effective statutory right of access to government information" - i.e., to require the government to give information to its citizens, with certain exceptions. Freedom of Information Act Guide and Privacy Act Overview, U.S. Dep't of Justice, at 3 (Sept. 1997 ed.) (emphasis added); Sweetland v. Walters, 60 F.3d 852, 855 (D.C. Cir. 1995). The reason for the limitation expressed in the cases defendant cites is to preclude access to the very confidential documents behind the President's decision-making process, thus ensuring the utmost candor from those who directly advise him.

   In contrast, the purpose of 18 U.S.C. 1001 is to prohibit individuals from knowingly giving false information to the government and thereby to guard the integrity of governmental functions -- "to protect the authorized functions of governmental departments from the perversion which might result from the deceptive practices described." Brogan v. United States, 1998 WL 23151, at p. 3, quoting United States v. Gilliland, 312 U.S. 86, 93 (1941). Thus, the concerns of the two statutes are quite different, and their separate definitions of the term "agency" must be analyzed separately.

   Similar concerns arose in Alexander v. Federal Bureau of Investigation, 971 F. Supp. 603 (D.D.C. 1997), where the court interpreted the Privacy Act, 5 U.S.C.  552a. The Privacy Act incorporates by reference the precise definition of "agency" stated in the FOIA. 971 F.Supp. at 606, n.1. However, since the purpose of the Privacy Act is to protect individual rights, not to provide individuals with access to some parts of the government, "there is no need to ignore the plain language of the statute and limit the word 'agency' as has been done under FOIA." Id. at 606-607.

   The present case presents even more compelling reasons for eschewing a blind application of the FOIA definition of "agency." Since the purpose of section 1001 is to protect the integrity of governmental processes by ensuring that those who give the government information speak truthfully, there is no sound reason for excluding those close to the President from its protections. Indeed, a strong policy argument could be made that, the closer the recipient of the information is to the President, the more vital it is that the information be truthful. Thus, the mere fact that FOIA is not interpreted to give access to the papers of the officials who immediately serve the President does not in any way imply that the courts can or should condone lying to those same officials.

   The distinction between the statutes is heightened here because they proceed from separate and different definitions of "agency." FOIA and the Privacy Act use a definition of "agency" appearing at 5 U.S.C.  552(f); section 1001 incorporates the title 18 definition of "agency" which appears at 18 U.S.C.  6. And as we pointed out in our opening brief, the EOP and its constituent parts have been recognized by Executive Order as agencies within the Title 18 definition, with specific regard to 18 U.S.C.  207, the bribery statute. Executive Order No. 12674, 54 F.R. 15159 (1989), as amended by Executive Order No. 12731, 55 F.R. 42547 (1990). Since sections 1001 and 207 both incorporate the section 6 definition of "agency," and both serve the same end - protecting the integrity of government operations - the term should be used in both statutes to mean the EOP and all of its constituent parts.

    C. Count 39 Is Not "Fatally Vague"

   Defendant finally asks this court to wade in and decide an issue never addressed by the district court - his contention that Count 39 of the Indictment is "fatally vague." Defendant asserts, wrongly, that such a course would promote judicial economy.

   What defendant is really asking for is a bill of particulars. See, United States v. Whitehorn, 710 F. Supp. 803, 821 (D.D.C. 1989), rev'd on other grounds sub nom United States v. Rosenberg, 888 F.2d 1406 (D.C. Cir. 1989) ("The purpose of a bill of particulars is to inform the defendant of the nature of the charges brought against him, to avoid surprise during the trial and to protect him against a second prosecution for an inadequately described offense . . . when the indictment itself is too vague and indefinite for such purpose.") (internal quotations omitted). As the determination of whether a bill of particulars is necessary rests within the sound discretion of the trial court, United States v. Butler, 822 F.2d 1191, 1193 (D.C. Cir. 1987), that court is the proper tribunal to resolve this claim. This court should not be asked to try to predict how the district court would exercise its discretion.(8)

   Defendant's vagueness argument confuses the requirements for a constitutionally sufficient indictment. An indictment is sufficient if it clearly informs the defendant of the precise offense for which he is accused so that he may prepare his defense. United States v. Conlon, 628 F.2d 150, 155 (D.C. Cir. 1980) (citing Russell v. United States, 369 U.S. 749, 763-64 (1962) and United States v. Debrow, 346 U.S. 374, 377-78 (1953)). The indictment must state the essential elements of the offense and be supplemented with enough detail to apprise the accused of the particular offense with which he is charged. Id.

   Here the Indictment properly describes a violation of 18 U.S.C.  1001. The elements of that statute are: (1) the defendant (a) falsified, concealed or covered up by any trick, scheme, or device a fact or (b) made a false, fictitious or fraudulent statement; (2) the fact concealed, or the statement made, was material; (3) the defendant acted knowingly and willfully; and (4) the matter was within the jurisdiction of any department or agency of the United States. United States v. Gatling, 96 F.3d 1511, 1525 (D.C. Cir. 1996).

   Count 39 states the charge against defendant with the requisite specificity. It charges defendant with concealing material facts from and lying to the President's then Chief of Staff and Counsel, on or about September 30, 1994, in response to their questions concerning the defendant's unlawful receipt and solicitation of gifts, gratuities, and things of value from prohibited sources. It charges defendant with stating, in substance, that "there's nothing else out there," when he knew at the time of his statement that he had concealed and covered up certain enumerated gratuities that he received and/or solicited illegally. It further specifically identifies for defendant the illegal gratuities he allegedly failed to disclose, by cross-reference to other paragraphs of the Indictment. Finally, Count 39 informs defendant that the extent of his unlawful acceptance of illegal gratuities from "prohibited sources" was material information to the President's Chief of Staff and Counsel.

   Defendant wants this court to create two new requirements to a constitutionally sufficient 1001 charge in an indictment -- (1) that the indictment recite verbatim the question posed to the defendant, and (2) that it recite verbatim the statement of the defendant alleged by the indictment to be false. No authority cited by defendant implies, much less mandates, these requirements. Nor are they feasible, as they would all but preclude 1001 charges relating to untranscribed oral statements.

   This court has rejected this result:

   We have already held that  1001 may be applied to statements [that were] not under oath and not stenographically transcribed. The absence of such formal trappings is relevant, of course, to the difficulty of proving beyond a reasonable doubt exactly what defendant said and whether he intended to deceive his audience as to a material question of fact; but these are issues of the sufficiency of the evidence in a particular case, not reasons for carving a categorical exception from the statute.

   United States v. Poindexter, 951 F.2d 369, 388 (D.C. Cir. 1991).

   In large part, defendant relies upon United States v. Vessas, 586 F.2d 101, 104 (8th Cir. 1978). The problem with the indictment in Vessas, however, was not that the government paraphrased the question and answer, but that "the indictment is not only self-contradictory, but also sets forth as the alleged false statement the defendant's denial of legal impossibility."(9) Id. at 104.

   Neither United States v. Manapat, 928 F.2d 1097 (11th Cir. 1991) nor United States v. Ryan, 828 F.2d 1010 (3d Cir. 1987), upon which defendant further relies, provide any additional support. Both of these cases address only the limitations upon a defendant's potential culpability in responding to questions so vague that their meaning cannot be deciphered. Neither decision purports to address the requirements for a sufficient indictment, much less to hold that an indictment fails for vagueness if it does not provide a verbatim recitation of the question or answer.

   Similarly, Bronston v. United States, 409 U.S. 352, 356 n.3 (1973), United States v. Chapin, 515 F.2d 1274, 1283 (D.C. Cir. 1975), and United States v. Ehrlichman, 379 F.Supp. 291 (D.D.C. 1974), hold only that an alleged false statement must be placed in context when presented to the fact-finder, for the jury cannot decide whether a statement is false when viewed in isolation. Here the indictment makes clear that the statement was false in the context in which it was made.

   In truth, defendant's vagueness challenge seeks to learn what evidence the Government will put on at trial, but the indictment need not provide defendant with this information. Again, the purpose of an indictment is to apprise a defendant of the essential elements of the offense with which he is charged, and provide sufficient detail to guard against double jeopardy. United States v. Haldeman, 559 F.2d at 124. This is precisely what Count 39 of this Indictment does, and defendant has no basis to ask for more.

   III. CONCLUSION

   The district court clearly erred in dismissing the subject counts of the Indictment. The Meat Inspection Act unquestionably forbids anyone performing duties under the Act -- the Secretary first among them -- from accepting gratuities. And section 1001 prohibits material false statements made to the Executive Office of the President, because they are statements to both a "department" and an "agency" within the statute's definition. The dismissals should therefore be reversed and remanded immediately for trial.

   Date: February 23, 1998

    Respectfully submitted,

    OFFICE OF INDEPENDENT COUNSEL

    In re Alphonso Michael (Mike) Espy

    __________________________________

    Donald C. Smaltz

    Independent Counsel

    Theodore S. Greenberg

    Deputy Independent Counsel

    Charles M. Kagay

    Chief Appellate Counsel

    Joseph P. Guichet

    Associate Independent Counsel

    103 Oronoco Street, Suite 200

    Alexandria, Virginia 22314

    Phone: (703) 706-0010

    Fax: (703) 706-0076

ORAL ARGUMENT SCHEDULED FOR MARCH 25, 1998

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

___________________________________________

No. 98-3001

___________________________________________

UNITED STATES OF AMERICA

    Appellant

versus

ALPHONSO MICHAEL ESPY

    Defendant-Appellee

___________________________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

___________________________________________

ADDENDUM TO REPLY BRIEF FOR APPELLANT

___________________________________________

    DONALD C. SMALTZ

    Independent Counsel

    THEODORE S. GREENBERG

    Deputy Independent Counsel

    CHARLES M. KAGAY

    Chief Appellate Counsel

    JOSEPH P. GUICHET

    Associate Independent Counsel

    Office of Independent Counsel

    103 Oronoco Street, Suite 200

    Alexandria, VA 22314

    (703) 706-0010

PERTINENT STATUTES AND REGULATIONS

   Except for the following, all pertinent statutes, etc., are contained in the (Principle) Brief for Appellant and in the Brief for Appellee:

   Tab

   A. 18 U.S.C. 207

   B. 21 U.S.C. 606

   C. 21 U.S.C. 607

   D. 21 U.S.C. 616

   E. 5 U.S.C. 552

   F. 5 U.S.C. 552a

   CERTIFICATE OF SERVICE

   I HEREBY CERTIFY that two copies of the foregoing Reply Brief for Appellant and attached Addendum were sent this 23rd day of February 1998, via hand delivery to the following counsel:

          Reid Weingarten, Esq.

          Steptoe & Johnson, LLP

          1330 Connecticut Ave., N.W.

          Washington, D.C. 20036

   and one copy via United States mail, postage prepaid, to the following:

          Theodore V. Wells, Jr., Esq.

          Lowenstein, Sandler, Kohl, Fisher & Boylan

          65 Livingston Ave.

          Roseland, NJ 07068-1791

          Charles J. Ogletree, Jr., Esq.

          320 Hauser Hall

          1575 Massachusetts Ave.

          Cambridge, MA 02138

    ____________________________

    Joseph P. Guichet

    Associate Independent Counsel

   CERTIFICATION REGARDING LENGTH OF BRIEF

   I hereby certify pursuant to Circuit Rule 28(d)(1) that the length of this Appellant Reply Brief is less than 6250 words.

    ____________________________

    Joseph P. Guichet

    Associate Independent Counsel

   1. Authorities upon which we chiefly rely are marked with asterisks. Back

   2. In common English usage, a "duty" is "[a]n act or course of action required of one by position, custom, law, or religion." Webster's II New Riverside University Dictionary (1994). Back

   3. The absurdity of defendant's position is highlighted by footnote 5 at pages 10 to 11 of his brief, where he tries to find significance in the fact that one of the marginal notes to the original act includes the word "duties" next to a description of some of the duties to be performed by inspectors. Defendant places enormous significance in the fact that the marginalia describing the Secretary's numerous duties describe those duties without using that word. However, throughout the Act there are detailed descriptions of duties to be performed by inspectors without a marginal notation describing them as "duties"; defendant apparently thinks that none of these can be duties prescribed under the Act. Back

   4. Defendant does not explain how a report issued by an executive official after the Act was passed can serve as legislative history for the Act. Back

   5. Ironically, though, since the Secretary of Agriculture prepared the report, it is just one more example of him performing duties prescribed by the Act. Back

   6. Even if it were necessary for the Indictment affirmatively to state that the EOP is an "agency," that would easily be accomplished upon remand through a superseding indictment. On this appeal, the substantive question before this court is whether the EOP is an "agency" within the meaning of the statute.Back

   7. Defendant disingenuously suggests that this court applied the Armstrong line of authority "in the context" of section 1001 in United States v. Rostenkowski, 68 F. 3d 489, 490 (D.C. Cir. 1995). Brief for Appellee at p. 28. To the contrary, this Court in Rostenkowski refused to make a determination of the issue until it had been addressed by the district court. Id. Back

   8. Defendant cites Halperin v. CIA, 629 F.2d 144 (D.C. Cir. 1980) for the proposition that this Court can decide this issue in a vacuum, without any input from the district court. In that case, this court affirmed a district court's ruling that a defendant lacked standing to raise a constitutional claim, and then proceeded to consider the substantive merits of the defendant's claim because of the uncertainty of the law concerning standing. Id. at 154. This court in Halperin did not attempt to consider any matter lying within the district court's discretion. Back

   9. The indictment charged that defendant represented that he did not know of property owned by his late mother and himself in joint tenancy, which unquestionably was a true statement, since it is legally impossible to hold property in joint tenancy with a deceased person. Id. at 103. Back

 

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