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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Criminal No. 96-0314 (JR)
UNITED STATES OF AMERICA v. ARCHIBALD R. SCHAFFER, III Defendant UNITED STATES RESPONSE TO
DEFENDANTS POST-HEARING MEMORANDUM IN
SUPPORT OF NEW TRIAL
The November 12, 1999 evidentiary hearing in this case has solidified what was
evident on defendants moving papers: defendant is unable to satisfy the very narrow
requirements that on rare occasions allow a court to grant a disfavored motion
for a new criminal trial.
First, contrary to the assertions in defendants post-hearing memorandum, the
testimony of former Secretary of Agriculture Michael Espy would not have probably
produced an acquittal at defendants trial.
Mr. Espys testimony provided absolutely no substantive evidence regarding
defendants actions or intent. Rather,
Mr. Espy an interested party who was identified prior to trial as defendants
co-conspirator and who could have been charged as a co-defendant with respect to the
single count at issue provided self-serving testimony that exculpated only himself,
not defendant. Even so, Mr. Espys
testimony was speculative and rife with details that he could not fully recall.
Furthermore, glaringly lacking from defendants memorandum is any discussion of the
significant inculpatory evidence from Mr. Espy that undercut defendants defense.
Second, defendant fails to address the dispositive fact that the hearing further
established that he was aware of Mr. Espys testimony at the time of trial and that
he, nevertheless, did not lift a finger either to attempt to procure it at trial or to
make a timely motion for new trial.
I.
MR. ESPYS
TESTIMONY WOULD NOT HAVE PROBABLY PRODUCED AN ACQUITTAL
Mr. Espys testimony did not cast any doubt on the evidence at trial regarding
Schaffers conduct or Schaffers intent regarding the Russellville weekend. Mr. Espy was not aware of Schaffers conduct
and, therefore, did not and could not refute any of the facts that the jury and the Court
of Appeals found had demonstrated defendants intent.
For example, Mr. Espy did not refute that defendant (1) was aware that Don Tyson
had invited Mr. Espy to the birthday party; (2) received the APF invitations himself and
sent them to Mr. Espy at USDA; (3) made multiple false statements to Betty Stern
concerning the true nature and details of the Secretarys trip to Arkansas; (4)
arranged for a Tyson Foods corporate jet to provide transportation to both Patricia
Dempsey and to Secretary Espy; (5) caused the APF to create false vouchers for submission
to USDA; and (6) lied to the FBI when interviewed about these events.
Mr. Espys testimony was in the form of opinion testimony regarding what
was in Espys mind with respect to the Russellville trip and, as such, did not
bear on the important question at trial which, of course, was what was the
defendants intent. Unsurprisingly,
Mr. Espys opinions painted these events in as benign a light as possible. Even assuming Mr. Espys opinions were
somehow relevant, they were formed without an accurate foundation of information and were
contradicted by the record.
Mr. Espys testimony that, in [his] opinion, the APF event was not
a cover for him to attend the Musical Celebration hosted by Tyson Foods (Tr. at 23) was,
at best, misinformed, and, at worst, a lie. Whether
Mr. Espy could recall it or not, the evidence demonstrated that Don Tyson invited Mr. Espy
to a birthday party, offered use of a corporate jet, and sent the birthday invitation
almost a week before the APF sent Mr. Espy an invitation to speak on the same date in
Russellville. (GX90). Don Tyson informed Schaffer of that fact via a
bcc (blind carbon copy). Id. On the same date that Don Allen prepared the
invitations that supposedly invited Mr. Espy to speak at the APF event, the
APF sent a memo to its board informing them that Secretary Espy had already agreed to be
in Russellville on May 15, 1993. The
defendant carried this charade further by lying to Ms. Stern about the number of
attendees, the duration of the meeting, a scheduled dinner, an aircraft chartered by APF,
lodging provided by APF, Ms. Dempseys presence on the airplane, and other details. Therefore, Mr. Espys opinion was totally
divorced from the facts regarding his receipt of an invitation to the events in
Russellville.
Furthermore, Mr. Espys post hoc explanation regarding his travel to
Russellville is belied by his own contemporaneous writings.
In his legal pads, on the date 4/27/93, Mr. Espy wrote Schedule
bday party Ark. (GXEH-2). This note clearly demonstrated what was on Mr.
Espys mind at that time not a speech, but a birthday party.[1]
Also, in his own pocket calendar, Mr. Espy scheduled for the afternoon of May 15,
1993 and the morning of May 16, 1993, Tyson not APF. (GXEH-11). Mr.
Espys testimony that the APF speech was paramount in his mind, therefore, did not
withstand scrutiny.
Other evidence indicated that the birthday party drew Mr. Espy to Russellville in
May 1993, and that Mr. Espy viewed the APF speech as an official reason to be in
Russellville to attend the party. Between
January 1993, when Mr. Espy became Secretary of Agriculture, and August of 1994, when his
conduct came under scrutiny, his travel records show that he had accepted only one
invitation to speak to a group in Arkansas.[2] (Tr. at 54-55).
On April 1, 1994, when agents of the OIG USDA inquired about gifts from
interested parties, Mr. Espy continued in an effort to conceal his attendance
at the birthday party. (GXEH-21 at 2). He told agents that he had traveled to
Russellville and stayed at the Tyson complex because of the lack of suitable
hotels. Id. He further claimed that he used a Tyson Foods jet
because of a lack of available airline facilities. Id. At no time during that interview did Mr. Espy
mention a birthday party hosted by Tyson Foods. All
of this evidence demonstrates that Mr. Espys opinion was not only irrelevant, it was
also utterly lacking in credibility.
Mr. Espy also speculatively opined that no one at Tyson Foods intended to influence
him with respect to any official acts. This
self-serving opinion is undercut by Mr. Espys knowledge that Jack Williams had
lobbied him on behalf of Tyson Foods[3]
and his awareness that zero tolerance and safe handling labels were issues of major
importance to the industry in May of 1993 as demonstrated by the inclusion of those
topics in the Secretarys speech to the APF and by his warnings to the defendant and
the industry in February of 1993 that safe handling labels were coming and . . .
coming fast. (Tr. at 72-73, 88). The evidence showed that Mr. Espy addressed the
APF, Don Tyson, John Tyson and Schaffer regarding zero tolerance and safe handling labels,
knowing that immediately following the speech, he would be taken to a weekend-long
birthday party where his girlfriend was waiting all courtesy of Tyson Foods. (Tr. at 74).
That, in that situation, Mr. Espy did not admit perceiving any effort to influence
him borders on the absurd and is unlikely to sway a rational jury.
Mr. Espy testified that he could not recall any interest by Tyson Foods in any
policy affecting meat rather than poultry. (Tr.
at 29). This lack of recollection is hardly
substantive exculpatory evidence. Furthermore,
the underlying opinion is not supported by the evidence.[4] It was Mr. Espys view that in May of 1993,
Tyson Foods was aware, as was the entire meat and poultry industry, that Mr. Espy and the
USDA were going to mandate safe handling labels on a very short time schedule. (Tr. at 87-88).
USDA mandated safe handling labels in a single rule that covered all meat and
poultry. Therefore, if Tyson Foods and
the defendant had an interest in the safe handling label issue, then they had an interest
in a policy affecting meat and Mr. Espys testimony served to strengthen the evidence
at trial with respect to that important issue.[5]
To the extent that Mr. Espy provided substantive testimony, it was inculpatory of
the defendant. Mr. Espys testimony made
clear that the issues of zero tolerance and the timing of safe handling labels were live
and in play during April and May of 1993 and, additionally, his testimony and notes for
his speech to the APF indicated that he spoke on those two issues to the APF. (Tr. at 72-73; GXEH-6, EH-7). Mr. Espy testified that, during the relevant time
period, he had notified industry that mandatory safe handling labels through an
emergency interim rule were coming, and they were coming fast. (Tr. at 88).
This powerfully inculpatory evidence undercut the entire premise upon which
Schaffer based his post-verdict motion for judgment of acquittal. With Mr. Espys testimony, defendant
presumably would not have succeeded in having the jurys verdict as to the Meat
Inspection Act overturned. Therefore, Mr.
Espys testimony would not have probably produced an acquittal.[6] I.
DEFENDANT
FAILED TO DEMONSTRATE THAT MR. ESPYS TESTIMONY WAS DISCOVERED SINCE TRIAL OR THAT
DEFENDANT ACTED WITH DUE DILIGENCE IN ATTEMPTING TO PROCURE THE TESTIMONY AT TRIAL
Defendant previously conceded that he was aware of the substance of Mr. Espys
testimony at the time of his trial. Def.s
Mot. for New Trial at 6. The Court
additionally recognized during the hearing:
(Tr., afternoon session, at 33). From defendants concession in his papers and
from the finding by the Court, it is clear that defendant does not satisfy the first prong
of the test laid out in Thompson v. United States, 188 F.2d 652 (D.C. Cir. 1951),
or the plain language of Fed. R. Crim. P. 33. Evidence
that was known but temporarily unavailable is, quite simply, not newly
discovered. As a result, regardless of
the perceived value of Mr. Espys testimony, defendants motion cannot, as a
matter of law, prevail. It is not based on
newly discovered evidence and it is untimely. Therefore,
this Court lacks jurisdiction to entertain it. See
United States v. Smith, 331 U.S. 469 (1947).
Finally, the proffer by counsel for the defendant still does not demonstrate one
iota of effort to procure this testimony at trial. Defense
counsel stated that he asked Mr. Espys counsel about the subject of the testimony
and then asked to interview Mr. Espy. Although
counsel apparently shared information, the request to interview Mr. Espy was denied. Oddly, Mr. Espys attorneys never even
mentioned these requests to their client, Mr. Espy, and defense counsel never put its
request in writing. Counsel for the defendant
then assumed that Mr. Espy was unavailable and proceeded to trial without ever bringing
the subject of this powerfully exculpatory testimony of which defendant was
being deprived to the attention of the Court. Rather,
counsel permitted the case to go to trial without even a hint that any injustice was
occurring and that defendant should have the benefit of Mr. Espys testimony. Nor did defendant mention this supposed
miscarriage of justice to this court within the seven-day window that Rule 33 allows for
new trial motions on any ground other than newly discovered evidence. Rather, it was not until more than ten months
after Mr. Espys acquittal and fifteen months after the jurys verdict against
the defendant and well after the Court of Appeals decided an appeal that defendant
would now turn into an exercise in futility that,
for the first time, defendant raised his claim. The
import of the cases cited by the Government, United States Opp. to Def.s Third Mot.
for New Trial at 9-10, was not that defendant necessarily would have succeeded in
attempting to procure Mr. Espys testimony by asking for a continuance or by taking
other steps, but, by taking such steps, defendant would have demonstrated that he believed
an injustice was occurring and put both the Court and the Government on notice that he was
being deprived of unavailable testimony.
Defense counsel cannot simply paper over his continuing lack of diligence by
announcing later that he assumed that his efforts would have been futile.
III.
CONCLUSION
Defendant has failed to meet the heavy burden required to demonstrate that Mr.
Espys testimony has been discovered since trial, that he diligently attempted to
procure the testimony at Dated:
November 22, 1999
Respectfully submitted,
Donald C. Smaltz
Independent Counsel
By:
__________________________
Wil Frentzen
Associate Independent Counsel
Charles M. Kagay
Chief Appellate Counsel
Joseph P. Guichet
Senior Associate Independent Counsel
Office of Independent Counsel
103 Oronoco Street, Suite 200
Alexandria, VA 22314
(703) 706-0052 [1] After
this note was shown to Mr. Espy at the hearing, his best effort to explain its
significance was [t]heres no rhyme or reason really in what I put on the sheet
that day. So I see it here. Its here.
I dont know why its here, but its here. (Tr. at 46). [2] At best,
according to Mr. Espy, he believed that he gave one other speech in Arkansas
during his two year tenure. (Tr. at 92). [3] In any
retrial, Mr. Espys uncertain suggestion that Jack Williams may have only lobbied him
with respect to personnel issues would be soundly impeached by Mr. Espys prior
inconsistent statements to Bruce Ingersoll of the Wall Street Journal, who would be
available to testify. Mr. Ingersoll would
state that during a March 4, 1994, interview, Mr. Espy admitted that defendants
subordinate, Mr. Williams, had lobbied him at USDA on a number of occasions regarding
issues of importance to Tyson Foods, including zero tolerance. Bruce Ingersoll, Espy Inquiry Focuses on
Mystery Memo to Learn If Coverup Occurred Over Industry Favoritism, Wall St. J., Jan.
16, 1995 at A16 (attached as Exhibit 1). [4] Regardless
of Mr. Espys testimony, the evidence at trial was that Tyson Foods had a $500
million per year beef and pork division. The
evidence also demonstrated that the Beef and Pork Division was concerned about the timing,
form, and content of safe handling labels. (GX130). [5] Mr.
Espys testimony that he considered John Tyson a friend was undercut by
his testimony that he did not know what John Tysons job was. Of course, if he knew that John Tyson was
President of the Beef and Pork Division, then he must have known that Tyson Foods had a
red meat and pork division. [6] The cases
defendant cites are easily distinguishable on their facts.
Amos v. United States, 218 F.2d 44 (D.C. Cir. 1954), is almost totally
devoid of facts or analysis, however, what can be gleaned from the opinion is that, unlike
Mr. Espys testimony, the proffered testimony there was substantive and went directly
to the defendants claim of self-defense. Further,
the court noted that the proffered witness, unlike Mr. Espy, was a
disinterested party and, most importantly, defendant could not locate the
witness, through no fault of his own. Id. In United States v. Liebo, 923 F.2d 1308,
1313-14 (8th Cir. 1991), the defendant offered evidence that substantively
supported his defense and refuted the governments evidence, with
regard to an issue about which the jury asked a question, and the evidence was unknown to
the defendant at the time of trial. Finally,
in United States v. Garland, 991 F.2d 328 (6th Cir. 1993), the defendant
was able to offer a newly discovered foreign legal decision that irrefutably demonstrated
that the defendant had been defrauded regarding a foreign business deal and had not
fabricated the deal as a fraud on others, and was unable despite diligent search to find
the necessary witness before trial. In fact,
the exculpatory evidence offered in Garland so completely undermined the
governments theory at trial that the court noted [t]his case illustrates the
reason the Department of Justice should thoroughly investigate its cases and not simply
assume that the accused is not telling the truth when his story is difficult to verify
immediately. Id. at 336.
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