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ORAL ARGUMENT HELD ON MAY 12, 1999

 

Nos. 98-3123 and 98-3126

                                                                                                                                

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

                                                                                                                              

 

UNITED STATES OF AMERICA

                                                                                    Appellant and Cross-Appellee,

 

v.

 

ARCHIBALD R. SCHAFFER, III

                                                                                    Appellee and Cross-Appellant.

                                                                                                                                

 

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

                                                                                                                                

 

RESPONSE SUPPLEMENTAL BRIEF FOR APPELLANT,

UNITED STATES OF AMERICA

                                                                                                                               

 

DONALD C. SMALTZ

Independent Counsel

                                                                                    CHARLES M. KAGAY

Chief Appellate Counsel

WIL FRENTZEN

Associate Independent Counsel

                                                                                    JOSEPH P. GUICHET

Associate Independent Counsel

Office of Independent Counsel

103 Oronoco Street, Suite 200

Alexandria, VA 22314

(703) 706-0010

 

 


 

 


CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

 

(A)      Parties

            All parties, intervenors and amici appearing in this Court are listed in the opening Brief for Appellant, United States of America.

(B)      Rulings Under Review

            References to the rulings at issue appear in the opening Brief for Appellant, United States of America.

(C)      Related Cases

            There are no related cases pending before this Court.

 


TABLE OF CONTENTS

 

 Page No.

 

CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES   i

 

TABLE OF CONTENTS       ii

 

TABLE OF AUTHORITIES  iii

 

GLOSSARY OF TERMS      iii

 

PERTINENT STATUTES AND REGULATIONS   iii

 

SUMMARY OF THE ARGUMENT            1

 

ARGUMENT             1

 

            I.          INTRODUCTION      1

 

II.         THE PLAIN LANGUAGE OF THE MIA DOES NOT SUGGEST

                        THAT THE GOVERNMENT MUST PROVE THAT A GIFT WAS

                        GIVEN TO INFLUENCE SOME PARTICULAR DUTY   2

 

III.       THE MIA DOES NOT REQUIRE A NARROWING

                        INTERPRETATION TO FIT WITHIN THE BROADER

                        STATUTORY AND REGULATORY SCHEME REGARDING

                        GIFTS TO PUBLIC OFFICIALS      3

 

            IV.       THE MIA DOES NOT INVITE THE “PECULIAR RESULTS”

                        POSSIBLE UNDER THE GRATUITY STATUTE  5

 

CONCLUSION          6

 


            TABLE OF AUTHORITIES

 

CASES           Page No.

 

United States v. Espy, 145 F.3d 1369 (D.C. Cir. 1998) 3, 4

 

United States v. Sun-Diamond Growers of California, 119 S. Ct. 1402 (1999)            passim

 

STATUTES AND RULES

 

18 U.S.C.  201(c)    passim

 

21 U.S.C.  622         passim

 

 

GLOSSARY OF TERMS

 

MIA                        -- Meat Inspection Act

Def.’s Supp. Br.     -- Supplemental Brief for the Appellee, Archibald R. Schaffer, III

 

PERTINENT STATUTES AND REGULATIONS

 

            All applicable statutes are contained in the opening Brief for Appellant, United States of America.

 


SUMMARY OF THE ARGUMENT

            Defendant’s argument that the Meat Inspection Act should be read to require proof that a gift was given with intent to influence some particular duty, rather than any duty, is flatly contradicted by the statute’s plain language as well as its role in protecting the nation’s meat supply.  Nothing in the Supreme Court’s decision in United States v. Sun-Diamond Growers of California, 119 S. Ct. 1402 (1999), suggests a contrary result.[1]

ARGUMENT

I.          INTRODUCTION

            The Meat Inspection Act (“MIA”) prohibits the giving of any thing of value to any person assigned duties under the MIA “with intent to influence said [person] in the discharge of any duty provided for in [the Act].”  21 U.S.C.  622 (emphasis added).  With the recent decision in United States v. Sun-Diamond Growers of California, 119 S. Ct. 1402 (1999), as a springboard, defendant insists that the MIA requires the Government to prove that a gift was given intending to influence some particular duty.  Sun-Diamond does not support this position, and in fact suggests why it must be rejected.

            Sun-Diamond addressed only the general gratuity statute, 18 U.S.C.  201(c), and not the MIA.  The differences between the MIA and 18 U.S.C. 201(c), both in language and in purpose, readily distinguish this case from Sun-Diamond.

II.        THE PLAIN LANGUAGE OF THE MIA DOES NOT SUGGEST THAT THE GOVERNMENT MUST PROVE THAT A GIFT WAS GIVEN TO INFLUENCE SOME PARTICULAR DUTY

 

            Defendant baldly insists that “the plain language of the [MIA] requires the prosecution to identify and prove that a thing of value was provided with an intent to influence a particular duty specified in the Act.”  Def.’s Supp. Br. at 3.  The statute itself lends no support to this assertion.  The statute provides:

            Any person . . . who shall give . . . to any . . . officer . . . of the United States authorized to perform any of the duties prescribed by this subchapter or by the rules and regulations of the Secretary any money or other thing of value, with intent to influence said . . . officer . . . of the United States in the discharge of any duty provided for in this subchapter, shall be deemed guilty of a felony . . .

 

21 U.S.C.  622.

            Defendant premises his “plain language” argument exclusively on Sun-Diamond’s conclusion that Congress’s “insistence upon an ‘official act,’ carefully defined, seems pregnant with the requirement that some particular official act be identified and proved.”  Def.’s Supp. Br. at 3-5.  But, unlike 18 U.S.C.  201, which carefully defines the term “official act” at length, see 18 U.S.C.  201(a)(3), the MIA does not attempt to define the term “duty” at all.  See 21 U.S.C.  622.  The MIA, in other words, is not “pregnant” with any requirement that a particular duty be identified.

 


            While, as defendant notes, one can discern duties assigned to the Secretary and others within the statute, this is a far cry from the type of precise definition that Congress gave to the term “official act” in the gratuity statute.  Indeed, recognizing the absence of a statutory definition of “duty” in the MIA, this Court has held that the term must be read broadly as “something that one is expected or required to do by moral or legal obligation.” United States v. Espy, 145 F.3d 1369, 1371 (D.C. Cir. 1998) (quoting The Random House College Dictionary 411 (Revised Ed. 1980)).  Following the reasoning of the Supreme Court, absent a detailed definition such as the one Congress supplied for the gratuity statute, there is no implication within the statute that Congress contemplated that the prosecutor would have to identify, with particularity, the duty for which the gratuity was given.

 

III.       THE MIA DOES NOT REQUIRE A NARROWING INTERPRETATION TO FIT WITHIN THE BROADER STATUTORY AND REGULATORY SCHEME REGARDING GIFTS TO PUBLIC OFFICIALS

 

            Defendant next seizes on the Supreme Court’s observation in Sun-Diamond that Congress has passed “broadly prophylactic criminal prohibitions on gift-giving” without regard to the purpose for which the gift was given.  Def.’s Supp. Br. at 5.  But no one has ever contended that the MIA was such a law.  For one thing, it is narrowly focused on the safety and quality of meat products shipped in interstate commerce, not the universe of governmental duties.  For another, it hinges specifically on the purpose for which a gift was given – it only forbids only the giving of gifts “with intent to influence . . .  the discharge of any duty provided for in this subchapter.”  Thus, none of the difficulties that the Supreme Court perceived would flow from reading  201(c) as prohibiting status gratuities are present under the MIA, even though the MIA does not require the identification of the particular duty for which the gift was given.

            In any event, Congress certainly did not perceive any problem in the breadth of a gratuity statute confined to the meat inspection arena, since, as defendant notes, Congress did create a pure status gratuity offense for a gift recipient.[2]21 U.S.C.  622.  A fortiori, the donor offense, which does require an intent to influence, cannot be broader than Congress thought reasonably necessary to protect the nation’s meat supply.[3]

            The MIA is one of the more “precisely targeted prohibitions” to which Sun-Diamond referred, because it applies only to gifts within the narrow context of the relationship between the meat industry and public officials having duties under the MIA.[4]  As a result, it does not overlap with other provisions in the intricate web of gift-giving regulations and this Court need not further narrow its application to make it fit within that web.

            Additionally, the Supreme Court in Sun-Diamond saw a need to narrow the gratuity statue, because otherwise its broad provisions would subsume the safe harbors of the Office of Governmental Ethics’ (“OGE’s”) regulations regarding gifts to public officials, creating “snares for the unwary.”  119 S.Ct. at 1409.  The MIA poses no comparable danger.   Although OGE’s regulations permit public officials to receive certain gifts under certain conditions (for example, gifts of less than $20 in value), none of those exceptions apply if the public official has the intent of being influenced in receiving the gift.  See 5 C.F.R. 2635.202(c) (“Notwithstanding any exception provided in this subpart, . . . an employee shall not accept a gift in return for being influenced in the performance of an official act”).  By its express terms, the MIA requires an intent to influence, and therefore cannot countermand any safe harbor the regulations carve out.

IV.       THE MIA DOES NOT INVITE THE “PECULIAR RESULTS” POSSIBLE UNDER THE GRATUITY STATUTE

 

            The peculiar results that troubled the Supreme Court under the gratuity statute — criminalization of “legitimate” status gifts untethered to official acts — are not present under the relevant provision of the MIA because it requires the criminal mens rea of “intent to influence,” thus reaching only improper payments.  Absent an intent to influence, there is no crime.  Thus, contrary to defendant’s contentions, the mens rea under the MIA is not “lower” than that required to violate the gratuity statute, because the jury must find a criminal intent to influence.

            What troubled the Supreme Court about the gratuities statute was that prosecutions for trivial offenses could occur if “the giving of gifts by reason of the recipient’s mere tenure in office constitutes a violation.”  119 S.Ct. at 1408.  This raised the possibility of prosecutions unrelated to any value that Congress was trying to promote through the statute.  The MIA does not raise a comparable concern.  A donor can be prosecuted under the MIA only if the gift was given to influence the discharge of a duty prescribed by the Act.  This prohibition lies at the core of Congress’s concern in protecting public safety through stringent inspection and regulation of meat production.

CONCLUSION

            The plain language of the MIA refutes defendant’s assertion that the government must prove a link between a gift and some particular duty under the Act.  Rather, as the statute says, a gift is criminal if given with intent to influence any duty under the Act, even if the duty is prospective or not specifically known at the time of the gift.  See Brief for Appellant, United States of America, at 41 n.18.  Sun-Diamond does not compel a different result; that opinion addressed only 18 U.S.C.  201(c), a statute using different language, serving different purposes, and enacted at a different time.  Consequently, the district court’s order as to Count 7 should be reversed and the jury’s verdict reinstated. 

                                                                        DONALD C. SMALTZ

                                                                        INDEPENDENT COUNSEL

                                                                        Charles M. Kagay

                                                                        Chief Appellate Counsel

 

 

                                                            By:      _____________________________

                                                                        Joseph P. Guichet

                                                                        Associate Independent Counsel

                                                                        Wil Frentzen

                                                                        Associate Independent Counsel

                                                                        103 Oronoco Street, Suite 200

                                                                        Alexandria, Virginia  22314

                                                                        Tel:  (703) 706-0010

                                                                        Fax:  (703) 706-0050


 


CERTIFICATE OF SERVICE

            I HEREBY CERTIFY that a true and correct copy of the foregoing Response Supplemental Brief of Appellant, United States of America was provided this 9th day of June, 1999, via facsimile and United States mail, postage prepaid, to the following:

                                    William H. Jeffress, Jr.

                                    Miller, Cassidy, Larroca & Lewin, LLP

                                    2555 M. Street, N.W.

                                    Washington, D.C.  20037

 

                                    Woodson W. Bassett, III

                                    Bassett Law Firm

                                    221 North College Ave.

                                    P.O. Box 3618

                                    Fayetteville, AR  72702

 

 

                                                                                    ____________________________

                                                                                    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 brief

is 1658 words.

 

 

                                                                                    ____________________________

                                                                                    Joseph P. Guichet

                                                                                    Associate Independent Counsel      

 

 

 

 



[1]Even if the Court concludes that the MIA requires proof of an intent to influence some particular duty under the Act, the evidence was more than sufficient to establish that link, as the Government demonstrated in its earlier briefs and at oral argument.

[2]Specifically, the statute forbids the receipt of any gratuity given with the intent to influence official action, or of any gratuity given by a person “in commerce” within the meaning of the statute, regardless of the intent with which it was given:

 

“[A]ny . . . officer of the United States authorized to perform any of the duties prescribed this subchapter who shall accept any money, gift, or other thing of value from any person . . ., given with intent to influence his official action, or who shall receive or accept from any person . . . engaged in commerce any gift, money, or other thing of value, given with any intent or purpose whatsoever, shall be deemed guilty of a felony . . . .”

 

 

[3]The statute’s history encourages broad application as Congress passed the MIA in response to Upton Sinclair’s The Jungle in order to ensure safe meat products.  Espy, 145 F.3d at 1371.

[4]  It is important to note that Congress first passed the MIA in 1906 when the field of conflict of interest laws was far less “littered” than it was in 1962, when Congress passed  201(c), or in 1999, when the Supreme Court interpreted  201(c).

 

 

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