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IN THE UNITED STATES DISTRICT COURT UNITED STATES
OF AMERICA
v. ALPHONSO
MICHAEL ESPY, Defendant Criminal
No. 97-0335 (RMU) UNITED STATES' OPPOSITION AND
INCORPORATED MEMORANDUM TO DEFENDANTS MOTION TO DISMISS
COUNT 35 OF THE INDICTMENT FOR FAILURE TO STATE AN OFFENSE
OFFICE OF INDEPENDENT COUNSEL
DONALD C. SMALTZ
In Re Alphonso Michael (Mike) Espy
103 Oronoco Street, Suite 200
Alexandria, Virginia 22314
Phone: (703) 706-0010
Fax: (703) 706-0076
TABLE OF CONTENTS Page No. TABLE OF
AUTHORITIES
ii I.
INTRODUCTION
1 II.
ARGUMENT
1
A.
BACKGROUND 1
B.
THE INDICTMENT SUFFICIENTLY ALLEGES A
VIOLATION OF 18 U.S.C. § 1512 AND PROPERLY
INFORMS THE DEFENDANT OF THE CHARGES
2
1.
The Knowing Requirement of the Statute Is
Met In Count 35 2
2.
Count 35 Adequately Apprises The Defendant of the
Charges and Allows Him To Be Advised Of The
Charges And Prepare His Defense
12
3.
The Indictment Need Not to Precisely Allege Facts
That Misleading Conduct Was Directed Toward
Another Person 21
4.
Defendant is Well Aware of the Identity of the Individuals Involved in Count 35 22
5.
Dismissal Is Not A Remedy 23 III. CONCLUSION 23 TABLE OF AUTHORITIES Page No. CASES Griffith
v. United States, 230
F.2d 607 (6th Cir. 1956)
5 Hamling v.
United States, 418
U.S. 87 (1974) 2,
20 Hughes v.
United States, 338
F.2d 651 (1st Cir. 1964)
4 Kinoy v.
District of Columbia,
400 F.2d 761 (D.C. Cir. 1968)
3, 4 Madsen v.
United States, 165
F.2d 507 (10th Cir. 1947)
4 Martinez
v. United States, 981
F.2d 867 (6th Cir. 1992)
10 Portnoy v.
United States, 316
F.2d 486 (1st Cir.) 2 Russell v.
United States, 369
U.S. 749 (1962) 2,
19, 22 Smith v.
United States, 360
U.S. 1, 79 S.Ct. 991 (1959)
23 Young v.
United States, 288
F.2d 398 (D.C.Cir. 1961)
22 United
States v. Agone, 302 F.Supp. 1258 (S.D.N.Y. 1969) 22 United
States v. Arteaga-Limones, 529 F.2d 1183 (5th Cir. 1976) 10 United
States v. Bordallo,
857 F.2d 519 (1985), modified, 872 F.2d 334 (9th
Cir. 1989) 3 United
States v. Caldwell,
544 F. 2d 691 (4th Cir. 1976)
19 United
States v. Conlon, 628
F.2d 50 (D.C. Cir. 1980)
18, 20 United
States v. Debrow, 346 U.S. 374 (1953) 20 United
States v. Diecidue,
603 F.2d 535 (5th Cir. 1979)
6, 16, 17 United
States v. Gipson, 46
F.3d 472 (5th Cir. 1995)
13 United
States v. Gordon, 253
F.2d 177 (7th Cir. 1958)
5 United
States v. Hess, 124 U.S. 483 (1888)
3 United
States v. Johnson,
414 F.2d 22 (6th Cir. 1969)
10 United
States v. King, 762 F.2d 232 (2d Cir. 1986)
3 United
States v. McGhee, 488
F.2d 781 (5th Cir. 1974)
19 United
States v. McLennan,
672 F.2d 239 (1st Cir. 1982) 2,
10 United
States v. Morlan, 756
F.2d 1442 (9th Cir. 1985)
20 United
States v. Morris, 18
F.3d 562 (8th Cir. 1994)
20 United
States v. Nance, 533 F.2d 699 (D.C. Cir. 1976)
16, 17 United
States v. Perkins,
748 F.2d 1519 (11th Cir. 1984) 21 *United
States v. Poindexter,
725 F.Supp. 13 (D.D.C. 1989)
2, 14, 15 United
States v. Purvis, 580
F.2d 853 (5th Cir. 1978)
4 United
States v. Rizzo, 373 F.Supp. 204 (S.D.N.Y. 1973)
22 United
States v. Rodolitz,
786 F.2d 77 (2d Cir. 1986)
3, 12 United
States v. Spaeni, 60
F.3d 313 (7th Cir.) cert. denied, 116 S.Ct. 536
(1995)
13 United
States v. Staggs, 881
F.2d 1527 (10th Cir. 1989)
20 United
States v. Thomas, 444
F.2d 919 (D.C. Cir. 1971) 17 United
States v. Turley, 891
F.2d 57 (3d Cir. 1989)
13 United
States v. Wiley, 979 F.2d 365 (5th Cir. 1992)
3 United
States v. Wydermyer,
51 F.3d 319 (2d Cir. 1995)
23 United
States v. Zarra, 298 F.Supp. 1074 (M.D.Penn. 1969), affd, 423 F.2d 1227
(3d Cir. 1970) 4 Young v.
United States, 288
F.2d 398 (D.C. Cir. 1961)
22 STATUTES 2 U.S.C. §
192 22 18 U.S.C. §
208(a) 18, 19 18 U.S.C. §
894 22 18 U.S.C. §
1505 14 18 U.S.C. §
1512 2, 3, 12, 17, 22 18 U.S.C. §
1512(b)
11, 13 18 U.S.C. §
1512(b)(2)(A), (B) and (b)(3)
1, 22 29 U.S.C. §
530 22 RULES
OF CRIMINAL PROCEDURE Fed.R.
Crim.P. 7(c)(1)
5, 12, 22 OTHER
MATERIALS Devitt,
Blackmar, Wolff and OMalley, Federal Jury Practice and Instructions, § 17.04 (West Publ. 1992) 5 1 Wright, Federal Practice and Procedure, § 125
(1969)
19
I. INTRODUCTION
Defendant Espy
argues that Count 35 of the Indictment, which charges him with Tampering with a Witness in
violation of 18 U.S.C. § 1512(b)(2)(A), (B) and (b)(3), should be dismissed for failure
to (1) to allege the intent of knowingly in its charging language; (2) failure
to state facts sufficient to support the allegations; (3) failure to state facts
sufficient to show that misleading conduct was conducted toward another person; and (4)
failure to reveal the identity of the witness with whom defendant Espy tampered.
The indictment clearly sets out allegations of a knowing conduct by the
defendant, and provides sufficient facts to place defendant on notice of the charges so he
may defend himself. Thus, the defendants
motion should be dismissed. II. ARGUMENT A.
BACKGROUND
An indictment is sufficient under the Constitution so long as it fairly pleads all
of the essential elements of an offense and apprises a defendant of the crime with
which he is charged so as to enable him to prepare his defense and to plead judgment of
acquittal or conviction as a plea to a subsequent prosecution for the same offense. United States v. McLennan, 672 F.2d 239,
242 (1st Cir. 1982). See, e.g.,
Hamling v. United States, 418 U.S. 87 (1974); Russell
v. United States, 369 U.S. 749 (1962); Portnoy v. United States, 316 F.2d 486,
488 (1st Cir.). The governments
indictment provides defendant Espy with ample information to prepare his defense, as well
as, defend himself against threats of double jeopardy. B.
THE INDICTMENT SUFFICIENTLY ALLEGES A VIOLATION OF
18 U.S.C. § 1512 AND PROPERLY INFORMS THE DEFENDANT OF
THE CHARGES
1.
The Knowing Requirement of the Statute Is Met In Count 35
The indictment must be sufficient enough to advise the defendant of the specific
charge against him in order to prepare a defense and to protect him against double
jeopardy. United States v. Poindexter, 725
F. Supp. 13, 20-21 (D.D.C. 1989). An
indictment is sufficient in this regard if it contains the elements of the offense and
enough detail to apprise the defendant of the particular offense with which he is charged. Id. at 21. As one court noted: [a]n indictment is sufficient if it
(1) contains the elements of the offense charged, (2) fairly informs a defendant of the
charge, and (3) enables the defendant to plead acquittal or conviction in bar of future
prosecutions for the same offense. Practical,
not technical considerations govern the validity of an indictment and the test of the
validity of an indictment is not whether the indictment could have been framed in a more
satisfactory manner, but whether it conforms to minimal constitutional standards. United States v. Wiley, 979 F. 2d 365, 367 (5th Cir.
1992)(citation omitted). This principle of
indictment interpretation has long been recognized by courts. The Supreme Court noted in United States v.
Hess, 124 U.S. 483 (1888): The language of the statute may be
used in the general description of an offense, but it must be accompanied with such
statement of the facts and circumstances as will inform the accused of the specific
offense, coming under general description, with which he is charged. Id. at
487.
Count 35 of the Indictment accomplishes what the law requires. Defendant Espy mistakenly argues that the count is
flawed because the scienter requirement is necessary to apprise him of the violation of
the statute.[1]
However, an allegation of the requisite state of mind, such as the word knowing,
is not necessary to meet this standard.
When an indictment alleges sufficient facts to show intent, the recitation of
the words knowing, willful, or intentional, or any of their
derivations is not necessary. United
States v. Purvis, 580 F.2d 853, 858 (5th Cir. 1978).
United States v. Zarra, 298 F.Supp. 1074, 1077 (M.D.Penn. 1969), affd,
423 F.2d 1227 (3d Cir. 1970) ([a]n indictment charging a statutory offense in
language and containing allegations necessarily or fairly importing guilty knowledge need
not contain formal words knowingly, willfully, feloniously,
or unlawfully). Indictments
do not need to always plead required scienter elements in precise statutory terms such as
willfully or knowingly so long as other words or facts contained
in the indictment necessarily or fairly import guilty knowledge. Madsen v. United States, 165 F.2d 507, 509-10
(10th Cir. 1947). See also Hughes v.
United States, 338 F.2d 651, 652 (1st Cir. 1964) (scienter element is sufficiently
pleaded if other allegations in the indictment compel an inference of intent); Griffith v. United States, 230 F.2d 607 (6th
Cir. 1956) (word knowingly not required when other words plainly and
definitely indicate . . . the essential ingredient of scienter).
Count 35 provides the defendant with notice of the scienter required for
conviction. As stated before, the indictment
is to be read as a whole, and [i]t is, of course, true that one count may be aided
by incorporating the allegations of another count by reference. United States v. Gordon, 253 F. 2d 177, 180
(7th Cir. 1958). Although each count
must be judged on its own allegations, that judgment may be made by either
those [allegations] directly in the count or those made by reference. Id. This
drafting tool, incorporating allegations in one count by reference into another count, is
expressly allowed by the federal rules. Fed.R.Crim.P.
7(c)(1). By directly incorporating facts from
other portions of the Indictment, Count 35 anticipated the concerns of indictment
pleading, and easily meets constitutional requirements.
Knowing means that the defendant was aware of his actions, in that they
were voluntary and intentional, realized what he was doing was wrong and did not act
because of ignorance, mistake or accident. See
Devitt, Blackmar, Wolff and OMalley,
Federal Jury Practice and Instructions, § 17.04 (West Publ. 1992).
In United States v. Diecidue, 603 F.2d 535 (5th Cir. 1979), a case stating
that despite defendants arguments reflecting a tireless search for ambiguity
and omission in the indictment, the indictment adequately alleged all elements and
properly informed defendant of the charges, the defendants attacked a conspiracy count for
failing to allege knowledge because words like knowing and willingly
were supposedly absent. Id. at 546. These words were present in the first paragraph of
the indictment. Id. The court held that because willfully
and knowingly were used in the first paragraph of the indictment, this intent
language was imported into the counts charging the overt acts of the conspiracy. Id. The
court further held that taken as a whole, the allegations of the count sufficiently
charged the defendants with the specific intent to commit the described offense. Id. In
the case at bar, the intent language is clearly stated earlier in the Indictment.
The Indictment at Count 35 specifically alleges that the defendant engaged in
misleading conduct toward another person. (Indictment,
¶ 30). Knowing conduct is
implicit in such an allegation. By
specifically alleging that defendant Espy engaged in misleading conduct, the activities
clearly imply that his acts were of his own volition and intentional. The language also eliminates a possibility that he
acted by mistake or accidentally. The clear
wording of the Indictment implies knowing conduct. Moreover, evidence of defendants knowing
conduct is found in other specific references.
Count 35 of the Indictment, in paragraph 29, specifically incorporates paragraphs 1
through 14, as well as paragraphs 26 through 28. Therefore,
that count has a part of its allegation paragraph 12.b., which alleges that: b.
on or about April 8, 1994, in response to a request by Special Agents of the USDA
Inspector General to produce a copy of defendant ESPYs travel itinerary for the
weekend of January 15 through 16, 1994, defendant ESPY caused to be made and delivered
to the USDA Inspector General Agents an altered travel itinerary which deleted all
references to defendant ESPYs girlfriend, the Chairman of Tyson Foods, limousine
service provided by Tyson Foods and the Green Bay v. Dallas 2nd Round National Football
Conference football game which defendant ESPY and his girlfriend attended as guests of
Tyson Foods. (emphasis added). Since paragraph 12.b. is part of 14
paragraphs, the defendant was provided additional incorporation references. As a result, Count 35 specifically alleges
paragraphs 24 through 26 of the Indictment, which state: 26. The USDA Office of Inspector
General was a law enforcement organization charged with investigating potential violations
by USDA employees of federal laws and, among other things, applicable Executive Branch and
USDA ethics regulations. Beginning on or
about March 17, 1994, USDA Inspector General Special Agents were conducting an
investigation regarding the acceptance by USDA employees of gifts and gratuities from
Tyson Foods, a prohibited source. It
was material to the USDA Inspector General investigation to determine whether Tyson Foods
had given, and USDA employees had accepted, anything of value and whether defendant ESPY
had received anything of value from Tyson Foods. 27. On or about April 1, 1994, in
Washington, D.C., defendant ESPY was interviewed by Special Agents of the USDA Office of
Inspector General and made false statements and representations. During the interview, defendant ESPY referred to
trip itineraries for official travel he undertook in May 1993 and January 1994. At the conclusion of the interview, defendant ESPY
was asked to produce these trip itineraries. On
or about April 8, 1994, defendant ESPY caused to be delivered to USDA
Inspector General Special Agents an altered and false trip itinerary for the weekend of
January 15 through 16, 1994, which concealed and covered up material facts. 28. From on or about April 1, 1994
until on or about April 8, 1994, in the District of Columbia, defendant ESPY knowingly and
willfully falsified, concealed and covered up by trick, scheme and device material facts
and made false, fictitious and fraudulent statements and representations to a department
and agency of the United States, the USDA Inspector General, in a matter within its
jurisdiction, namely, its investigation of allegations of the unlawful receipt of
gratuities by defendant ESPY in that: a. On or about April 1, 1994,
defendant ESPY, in response to questions posed by Special Agents of the USDA Inspector
General, stated and represented that following an overnight stay at the TMDC, on Sunday,
May 16, 1993, Tyson Foods flew him back to Washington National Airport in its corporate
jet because defendant ESPY was directed to return to the White House for dinner with the
President and there were no available commercial airline facilities to return him to
Washington, D.C. in time to attend the dinner. In
truth and fact, (1) as early as May 6, 1993, defendant ESPY had planned to return to
Washington, D.C. on a Tyson Foods' corporate jet; (2) commercial airline flights were
available to defendant ESPY from Arkansas to the Washington National Airport; and (3)
defendant ESPY's staff had previously made commercial reservations from Arkansas to the
Washington National Airport which defendant ESPY had directed to be canceled; b. On or about April 8, 1994,
defendant ESPY caused his staff to prepare and deliver to the USDA Inspector
General an altered and false trip itinerary which concealed and covered up material facts,
in that references on Saturday, January 15, 1994, to: (1) defendant ESPYs
girlfriend, (2) arrangements for Limo service in Dallas, Texas, (3) the
Chairman of Tyson Foods and his girlfriend at the Mansion on Turtle Creek, and
references on Sunday, January 16, 1994, to (4) a brunch at Stadium in Irving, Texas,
(5) the Green Bay vs. Dallas 2nd Round National Football Conference Playoffs,
and (6) defendant ESPY's girlfriend were deleted and deliberately concealed from the USDA
Inspector General. (emphasis added). The incorporated paragraphs provide
the defendant sufficient facts to infer that defendants actions were knowing.
Paragraph 12.b, incorporated into Count 35, alleges in the portion emphasized
above, that defendant Espy caused the document to be made and delivered by his staff. This allegation clearly intends to show that
the defendants actions toward his staff were with knowledge. That paragraph references the date of April 8,
1994, allowing the defendant to make the analysis that it is connected to the allegations
in Count 35, paragraph 30, which specifically references that date. Moreover, the emphasized portions of paragraphs 27
and 28.b, again incorporated by reference and therefore part of Count 35, also allege that
defendant Espy caused his staff to deliver the document (paragraph n. 7) and repeated that
he caused his staff to prepare and deliver the document (paragraph 28.b).
The words knowingly or willfully are not needed when other
words or facts contained in the indictment import guilty knowledge. McLennan, 672 F.2d at 242. Some Circuits have held that when specific intent
is not sufficiently alleged in the indictment, the intent requirement can be gleaned from
the appropriate section of the statute included with the charge. E.g., Martinez v. United States, 981 F.2d
867, 871 (6th Cir. 1992); United States v. Arteaga-Limones, 529 F.2d 1183, 1200
(5th Cir. 1976); United States v. Johnson, 414 F.2d 22, 26 (6th Cir. 1969). The relevant sections of the United States Code
are clearly set forth after paragraph 30, on page 42 of the Indictment. The defendant, therefore, was given notice of the
scienter requirement by reference to the United States Code.
The allegations in these incorporated paragraphs clearly establish the scienter of
knowledge needed for a violation of Section 1512(b) in Count 35. The recited facts indisputably establish that
defendant Espy was acting knowingly. The
reference to the Code also provides defendant Espy with notice.
Moreover, paragraph 28, again, incorporated by reference in Count 35, in alleging
the scheme by which defendant acted in delivering the false itinerary, including causing
his staff to prepare and deliver the false itinerary to the Inspector General, clearly
states that defendant acted knowingly. Therefore,
the term knowingly is expressly referenced in Count 35.
The government recognizes that defendants conduct must be done knowingly
as required by the statute. The government
also acknowledges that it has to prove that knowing conduct at trial, beyond a
reasonable doubt. The jury must be informed
of this requirement, and, as argued herein below, such instruction should come at the end
of the parties cases. However, as
presently pled, the Indictment properly apprises defendant of the scienter required of the
statute with which he is charged. The statute
more than passes constitutional muster.
2.
Count 35 Adequately Apprises the Defendant of the Charges
and Allows Him To Be Advised of the Charges and Prepare
His Defense
Defendant Espy
argues that Count 35 is flawed because it does not identify the actual nature of the
misleading conduct or cite 18 U.S.C. § 1515 to establish the conduct alleged to be
misleading, and because no facts support the allegation that the conduct toward a witness
was misleading. This argument is strained and
without support.
In the first place, Count 35 does not need to identify exactly what type of
misleading conduct defendant Espy undertook. The
defendant cites no authority for his argument that each count of an indictment must not
only track the statute itself, but must also track the definition section as well.[2]
Fed. R. Crim. P. 7(c)(1) states that the indictment shall state for each
count the official or customary citation of the statute . . . which the defendant is
alleged therein to have violated. The
rules refer to the statute . . . which the defendant is alleged to have violated,
not statutes that provide definitions, or even statutes that may be instructive.
Count 35 of the Indictment, in paragraph 30, states that defendant Espy
engaged in misleading conduct toward another person.
Title 18 U.S.C. § 1512(b) states that [w]hoever uses intimidation, force,
threatens, or corruptly persuades another person, or attempts to do so, or engages in
misleading conduct toward another person . . . shall be fined. Count 35 clearly tracks the language of the
statute in accordance with the federal rules.
Even if there is some reason that the definition section of the witness tampering
provision needs to be incorporated into the Indictment, the Indictment still alleges all
necessary information. Indictments that, when
read in their entirety, inform the defendant of all elements of the offense are generally
sufficient even if lacking certain details of the crime charged. See United States v. Turley, 891
F.2d 57, 59 (3d Cir. 1989) (indictment charging mail fraud sufficient because, when read
in entirety, informed defendant of charges even though lacked details of defendant's
scheme); United States v. Gipson, 46 F.3d 472, 474 (5th Cir. 1995) (indictment
charging armed robbery under Hobbs Act sufficient even though alleged impact on interstate
commerce in conclusory terms); United
States v. Spaeni, 60 F.3d 313, 315 (7th
Cir.) (indictment charging conspiracy sufficient even though failed to list specific date
of beginning of conspiracy), cert. denied, 116
S. Ct. 536 (1995).
Defendant Espys misleading conduct toward the witness is provided in
paragraphs 12.b, and 24 through 26, specifically incorporated in Count 35. When reading Count 35 it clearly lays out the
manner in which the grand jury found that he misled the witness. These allegations provide the defendant with
enough specificity to allow him to be advised of the specific charge against him and
prepare his defense. Poindexter, 725
F. Supp. at 20-21. Nothing more is required.
In Poindexter, the defendant was charged in one count to have obstructed
and endeavored to obstruct inquiries being had by several committees of the House of
Representatives in violation of 18 U.S.C. § 1505. Id.
One of two ways the obstruction allegedly occurred was by the dispatch of false letters to
the committees on July 21, 1986.[3] The defendant attacked the charging paragraph,
which alleged his July 21 letters, which referred to 1985 letters, were false and
misleading, because, the defendant well knew and believed, the 1985 letters . . . would
not have been a truthful response to the 1986 inquiries. Id. at 21.
The defendant argued the count did not identify the 1985 letters further or specify
in what manner the letters were false. Defendant
claimed that the allegation was vague and did not permit him to prepare for trial on that
count. However, the court disagreed, stating
that references to the author of the letter and previous information provided by the
Independent Counsel, furnished sufficient information to the defendant about the letters
to enable him to prepare his defense and to protect him against double jeopardy. Id. at 21.
The instant Indictment provides substantially more information than that referred
to in Poindexter. The allegation in
Count 35 is that defendant Espy was interviewed on April 1, 1994, by agents of the USDA
Inspector Generals office. He discussed
his trip to Dallas and his attendance at a Dallas Cowboys/Green Bay Packers football game
during that trip. Defendant Espy referred to
a document during his interview as his itinerary. The
agents requested a copy of the document, and the defendant agreed to provide it to them. On April 8, 1994, the defendant met with and
directed a member of his staff to have certain information removed from his itinerary for
that trip. That information is specified in
the Indictment. That individual went to another member of the defendants staff, and
provided this second individual with defendant Espys directions for changes to the
itinerary. This second individual then made
the changes. After the changes were made, the
altered itinerary was given to the first individual who showed defendant the changed
itinerary. Defendant then directed this person to take the itinerary to the Inspector
Generals Office. The defendant did not
tell either member of his staff, that during the April 1, 1994 interview with the USDA
Inspector General agents, he had specifically referred to some of the information that he
directed to be removed. Instead, defendant
Espy gave a reason unrelated to the interview for taking out the information.
The defendant
cites United States v. Nance, 533 F.2d 699 (D.C.Cir. 1976), for the proposition
that anything less than dismissing count 35 would allow the government a free hand
to insert the vital part of the indictment without reference to the grand jury. Id. at 701; (Mot. To Dismiss Count 35 for Failure
to State An Offense, at 6). The defendant
fails to grasp the difference between a defendants constitutional right to know what
offense he is charged with and his need to know the evidentiary details which will be used
to establish his commission of that offense. Diecidue,
603 F.2d at 547 (discussing how Nance only applies in situations where the
indictment fails to mention any pertinent information leaving the defendant completely
unaware of what crime he is being charged). In
Nance, a federal wire fraud case, the offending counts listed the name of the
victim, the date of the false representation, the amount involved and the date the sums
were paid, but there were no representations as to the nature of the false
representations. Id., at 700.[4]
Indictments do not need to include explicit discussions of every detail. They only need to notify the defendant so he can
prepare his defense and be on notice for double jeopardy concerns. Explicit details serve no purpose in
alerting the defendant as to what charges he is facing and are consequently unnecessary in
a sufficient indictment. See Diecidue, id.
(stating that in a discussion of how the crime did effect interstate commerce contributed
virtually nothing to the defendants understanding of the nature of the offense
charged). In Nance, the
Indictment was gave no information on the nature of the charges. In the instant case, the defendant has sufficient
information to be advised of the charges and formulate a defense.
In a situation in which the government provided little to no detail in its
indictment, Judge Bazelon of the District of Columbia Circuit found no problem with the
sufficiency of the indictment. In that case, United
States v. Conlon, 628 F. 2d 50 (D.C. Cir. 1980), the court considered an
indictment that provided:
In the period from on or about December 1976 through June 1977, in the District of Columbia, JAMES A. CONLON, the
Defendant, being an officer and employee of
the executive branch of the United States Government, that is, the Director of the United States Bureau of Engraving
and Printing, unlawfully and knowingly did
participate personally and substantially as such officer and employee, through decision, recommendation, and
the rendering of advice, in a proposal of
the American Bank Note Company for a Security Signature System for U.S. Currency, a particular matter in which to his
knowledge the American Bank Note Company, a
company with which he was negotiating and had an arrangement concerning prospective employment, had a financial
interest. [In violation of 18 U.S.C. § 208(a), the conflict of interest law]. Id. at 154. The court granted a motion for a bill of
particulars in which the defendant asked whether the government was alleging that
defendant made (1) a recommendation, (2) he rendered advice, (3) made a decision, (4)
negotiated with the American Bank Note Company, or (5) had an arrangement with the
American Bank Note Company, and for each the dates, content, or substance. In response to the bill of particulars, the
government provided dates on the first three inquiries and provided letters signed by the
defendant which evidenced the act, but the information on the fourth and fifth inquiries
were scanty with the government professing not to know the details. Id. at 152-3. At oral argument on the motion challenging the
sufficiency of the indictment, the government again offered much the same evidence. Id. at 153.
In overturning the district courts decision to dismiss the indictment because
the terms arrangements and negotiating needed specific acts of
negotiating plead, the District of Columbia Circuit Court held: We find that it is not necessary to
require the pleading of specific acts
of negotiating or specific bilateral arrangements or acts of arranging
in order to save § 208(a) from vagueness. In the context before us, the terms negotiating and arrangement
are not exotic or abstruse words, requiring
detailed etymological study or judicial analysis. They
are common words of universal usage. . . . People of ordinary intelligence would have fair notice of the conduct proscribed by the
statute. That there may be marginal cases is not sufficient reason to hold
that a statute is too ambiguous to define a
criminal offense. . . . An indictment is sufficient if it
clearly informs the defendant of the precise offense of which he is accused so that he may prepare his defense. [citing Russell v. United States, 369 U.S.
749, 763-64 1962; United States v. Debrow,
346 U.S. 374, 377-78 (1953)]. The test for sufficiency is whether it is fair to require the
accused to defend himself on the basis of the
charge as stated in the indictment. [citing United
States v. Caldwell, 544 F. 2d 691, 694 (4th Cir. 1976); United States v. McGhee,
488 F.2d 781, 784 (5th Cir. 1974); see generally, 1 Wright, Federal Practice and Procedure, § 125
(1969)]. In some cases, it is enough if the indictment puts the charge in the
words of the statute but this is acceptable
only where the statute itself fully, directly, and unambiguously
sets forth all of the elements of the offense. [citing
Hamling v. United States, 418 U.S. 87, 117-19 (1961); United States v. Debrow,
346 U.S. 374, 376-78 (1953)] . The more generally
applicable rule is that the indictment may use the language of the statute, but that language must be supplemented
with enough detail to apprise the accused of
the particular offense with which he is charged. Conlon, 628 F.2d at 154-56. The court found the Conlon indictment, with
much fewer details than the instant Indictment, sufficient for the purposes of informing
the defendant of charges against him and allowing him to prepare his defense.
When reading Count 35 in conjunction with the rest of the indictment and those
paragraphs incorporated by reference, the misleading conduct is obvious. The indictment must be looked at as a whole. See United States v. Morris, 18 F.3d 562,
567-68 (8th Cir. 1994) (indictment charging bank fraud sufficient because, when read in
conjunction with other counts, common fraud scheme apparent); United States v. Morlan, 756 F.2d 1442, 1445-46
(9th Cir. 1985) (indictment charging defendant with assaulting bank employees sufficient
because, when read as whole, delineated elements of crime despite failure to name
particular employees); United States v.
Staggs, 881 F.2d 1527, 1531-32 (10th Cir. 1989) (indictment charging various drug
violations sufficient even though failed to specify three felony violations because
statutory language tracked and practical reading of other counts adequately
informed defendant of offenses; United States v. Perkins, 748 F.2d 1519, 1524-25
(11th Cir. 1984) (indictment charging obstruction of justice sufficient because defendant
adequately apprised of charge and its elements even though failed to identify proceeding
allegedly obstructed). Count 35
alleges the methods by which defendant mislead his staff, while the incorporated
paragraphs provide ample evidentiary detail of the episode to allow him to defend himself
and understand the charges.
3.
The Indictment Need Not to Precisely Allege Facts That Misleading Conduct Was
Directed Toward Another Person
As stated above, the indictment must be read as a whole. When reading count 35 in conjunction with the
entire indictment it is clear that the misleading conduct was directed towards a specified
person. Paragraph 28.b of the indictment
states that defendant Espy caused his staff to prepare and deliver to the USDA a
false itinerary which concealed and covered up material facts. Defendants allegation that the Indictment
failed to allege that misleading conduct was directed at another simply ignores the
Indictments method of incorporation by reference. 4.
Defendant is Well Aware of the Identity of the Individuals Involved in Count 35
Given the limited number of individuals on his staff on April 8, 1994, it is
difficult to believe that defendant does not know the identities of those people referred
to in Count 35. The government does not concede that the defendant is entitled to the
information through the Indictment. This
Circuit has stated that under Fed. R. Crim. P. 7(c) it is not necessary to allege the
identity of a victim. Young v. United States, 288 F.2d 398, 400 (D.C.Cir. 1961)
(holding that if such information is desired it should be sought for in a bill of
particulars). Only when the statute charged
involves a particular class or category of persons, for example, an officer of a
banking institution, so that the person of that particular class or category would be of
the essence of the offense is the identity of the victim necessary. Id. Title
18 U.S.C. § 1512 does not apply to a certain class of people as contemplated by that
holding.[5]
However, to avoid a waste of the courts resources to resolve this issue, the
government acknowledges that the proof will show that the inidividual who defendant Espy
directed to remove the information from the itinerary was Eloise Thomas, and the person
who actually made the changes to the itinerary was Betty Stern. 5.
Dismissal Is Not A Remedy
Assuming, arguendo, that the indictment is flawed as alleged, it is
certainly not fatal to its validity as a charging document.
[J]ustifications for technical rigidity have largely disappeared in an age of
criminal codes and well settled burdens of proof.
United States v. Wydermyer, 51 F.3d 319, 324 (2d Cir. 1995). The Supreme Court has stated that [c]onvictions
are no longer reversed because of minor technical deficiencies which did not prejudice the
accused. Smith v. United States,
360 U.S. 1, 9, 79 S.Ct. 991, 996 (1959). III. CONCLUSION
The defendant has been adequately apprised of the charges against him in Count 35,
and may properly plead to them and prepare his defense with the
information
provided. Any confusion over the level of
scienter required may properly be handled through jury instructions. For the foregoing reasons, defendants motion
should be dismissed. Date: November 20, 1997
Respectfully submitted,
OFFICE OF INDEPENDENT COUNSEL
In Re Alphonso Michael (Mike) Espy
__________________________________
Donald C. Smaltz, Independent Counsel
William F. Fahey
Roscoe C. Howard, Jr.
Nathan J. Muyskens
103 Oronoco Street, Suite 200
Alexandria, Virginia 22314
Tel: (703) 706-0010
Fax: (703) 706-0076
[1] The defendant cites United States v. Rodolitz, 786
F.2d 77, 81 (2d Cir.), cert. denied, 4779 U.S. 826 (1986) for the proposition that
the Second Circuit has found knowing as an element of 18 U.S.C. §
1512 that must be expressly pled in an indictment. In
fact, Rodolitz states, Section 1512 of 18 U.S.C. provides in pertinent part:
whoever knowingly . . . engages in misleading conduct toward another person, with
intent to . . . influence the testimony of any other person in an official proceeding . .
. shall violate the statute. Similarly,
the defendant cites United States v. King, 762 F.2d 232, 236 (2d Cir.), cert.
denied, 475 U.S. 1018 (1986), which merely sets out the statute. The government does not dispute that knowing
engagement is part of the statute and it has the burden of establishing knowing
conduct, beyond a reasonable doubt, at trial. However,
the Indictment accomplishes the requirement of putting the defendant on notice of the
state of mind requirement. To the extent the
defendant argues that these cases find that knowing must be pleaded in the
indictment, he is wrong. United States v.
Bordallo, 857 F.2d 519, 524 (1985), modified, 872 F.2d 334 (9th Cir.), cert.
denied, 493 U.S. 818 (1989), does use knowing as an element, but is not
faced with the issue of whether it must be pleaded expressly in an indictment. The cases cited in footnote 1 of the defendants
motion have a similar analysis. Kinoy v.
District of Columbia, 400 F.2d 761 (D.C. Cir. 1968), cited by defendant as Kilnoyin
its motion, involved the District of Columbia Code and not a federal statute. Id., at 765.
Also, it does not involve an indictment, but a criminal information, id., at
294, which is not subject to review by a grand jury.
Moreover, the flaw of the charging document in Kinoy was that it did not
include elements that described actual proscribed conduct, congregating and
assembling. At issue in the case were not scienter requirements such as knowing.
Id., at 295. Kinoy adds
little analytical value to the instant issues. [2] United States v. Rodolitz, 786 F. 2d 77, 81-82
(2d Cir. 1986), in analyzing Section 1512 for the purposes of its facts, cites Section
1515(3)(A), and interprets different examples of violations of that statute. However, in concluding that the defendants
conduct comes within the definitional terms of the statute, there is no representation
that the government, in the Indictment, cited
the statute or needed to cite the statute to take advantage of its terms. The government has been unable to locate any
authority that holds that Section 1515, or any definitional sections, must be cited in an
indictment in order to provide a defendant with proper notice of the charges and allow him
to prepare his defense. [3] The second way was by making arrangements for a meeting
between House members and Oliver North in the course of which North made a number of false
statements. Poindexter, at 20. [4] United States v. Thomas, 444 F.2d 919 (D.C. Cir.
1971), cited by defendant, mot. to dismiss Count 35, at 6, is also unavailing. In Thomas, the court interpreted the
District of Columbias burglary statute to find a violation of the statute only if
the defendant entered a dwelling with the purpose of committing a specific crime. By failing to allege the specific crime, defendant
was to commit on entering the dwelling, the charging document failed to list an essential
element. In the instant case, there is no
such interpretation of Section 1512. By
alleging the statutory provisions along with the detail of the Indictment, the defendant
has been given the notice of the full charge as the defendant in Thomas was not
afforded. [5]See Russell v. United States, 369 U.S. 749, 764,
82 S.Ct. 1038, 1047 (1962) (the petitioners were charged with violating 2 U.S.C. § 192
where the subject of the Congressional inquiry is central to prosecution under the
statute, thus the victim was the "very core of criminality" and should have been
named in the indictment); United States v.
Agone, 302 F.Supp. 1258, 1260 (S.D.N.Y. 1969) (dismissing an indictment for failing to
name the victim in a labor management statute, 29 U.S.C. § 530, written to protect
"any member of a labor organization" where the identity of the victim
"member of a labor organization" was crucial to meeting all elements of the
statute); United States v. Rizzo, 373 F.Supp. 204, 206 (S.D.N.Y. 1973) ( the names
and/or identities of the victims in a conspiracy to extort, under 18 U.S.C. § 894, which
does not apply to a certain group of people, were not the core of the criminality
and need not be disclosed in the indictment).
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