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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 MOTION TO PRECLUDE IRRELEVANT EVIDENCE AND REQUEST FOR A CORRECTIVE INSTRUCTION
The Government again moves to preclude further efforts by defense counsel to
directly or indirectly argue, infer, or present evidence at trial (1) concerning
race, (2) claiming an improper motivation by the Office of Independent Counsel or any
of its agents, USDA employees or former employees, or any person other than a testifying
witness, or (3) attacking the thoroughness with which this investigation has been
conducted. Also, given the great amount of
elicited testimony and statements of counsel already before the jury, the Government
requests that a corrective instruction be provided to the jury as soon as possible. I.
INTRODUCTION
The purpose of the instant trial is to determine whether defendant Espy violated
federal criminal laws. As a tactical matter,
however, defense counsel has subtly (and occasionally not-so-subtly) elicited testimony
and introduced evidence to shift the jurys focus from that issue to the issue of how
and why this investigation began. As a
result, the issues currently prominent before the jury are (1) whether the defendant
was held to a higher standard (and, thus, is now being prosecuted) because he is an
African-American; (2) whether bureaucrats at the USDA and Republicans hoped, and/or
sought to ensure, that defendants tenure as Secretary of Agriculture was an
unsuccessful one; and (3) whether it is fair that an Independent Counsel focuses on
one individual and thoroughly reviews his conduct to determine if he violated criminal
laws. Each of these issues is wholly
irrelevant to the question of whether defendant Espy violated the criminal laws as alleged
by the grand jury. These arguments can only
serve to encourage jury nullification a practice wisely prohibited in this Circuit. II.
ARGUMENT
Argument, evidence, or inference relating to race is completely irrelevant to a
determination of defendants innocence or guilt.
It is extraneous, inflammatory, and can only constitute an attempt to encourage the
jury to acquit the defendant regardless of whether he committed the acts alleged in the
indictment.
Since opening statements, defense counsel has made an issue of defendants
race. As best can be determined, defense
counsel suggests that race is relevant because defendants race caused persons at
USDA, and others outside USDA, to wish failure upon defendant Espys tenure as
Secretary of Agriculture. See 10/1/98
Trial Tr. at 94-98 (Attached as Exhibit A).[1] In other words, because of Espys race,
people were out to make him fail. The obvious
fallacy with this argument is that the second proposition is equally as irrelevant to this
trial as the first. Even if others sought to
make defendant Espy fail, such evidence does not impact the question of whether he
violated the law. No evidence exists in the
record suggesting that people hoping defendant would fail forced him to accept the alleged
gratuities or make the alleged false statements. Nor
does any evidence suggest that those persons entrapped or framed defendant. Indeed, whether the entire United States citizenry
loved or hated defendant (for any reason) is wholly irrelevant to these proceedings. Consequently, defense counsel must be precluded
from making further efforts to raise the issue of (1) defendants race, or (2) a
supposed desire on the part of some persons to make Espy fail.[2]
Equally irrelevant to the issue of defendants guilt or innocence are (1) that
this is an Independent Counsel prosecution or (2) the thoroughness with which this office
has investigated defendant. Neither this
office nor the Independent Counsel Reauthorization Act is on trial. Clearly, evidence and argument relating to the
nature of this investigation, as well as the conduct or the expenditures of this office
lack any tendency to make the existence of any fact that is of consequence to the
determination of [innocence or guilt of the defendant] more probable or less probable than
it would be without the evidence. See
Fed. R. Evid. 401.[3]
As emphasized above, the issue before the jury is whether defendant violated the
specific criminal statutes alleged in the indictment.
Evidence and arguments regarding the history of this investigation and the
expenditures of this office, when presented at trial, serve not to prove innocence but
only to encourage the trier-of-fact to infer an improper motive on the part of the
government in bringing the present indictment. Cf.
United States v. Armstrong, 517 U.S. 456, 463, 116 S.Ct. 1480, 1486 (1996) (A
selective-prosecution claim is not a defense on the merits to the criminal charge itself,
but an independent assertion that the prosecutor has brought the charge for reasons
forbidden by the Constitution.). If
defendant had a valid legal complaint on this issue, he certainly would have raised it to
this Court pre-trial. Having failed to do so,
attempts to raise the issue before the jury must be precluded.[4]
Indeed, none of the aforementioned issues address the defendants conduct at
all, much less whether or not he knew that conduct was illegal.[5] Thus, they are wholly irrelevant to a
determination of innocence or guilt. Given
this fact, defense counsels efforts to repeatedly raise these issues before the jury
can only be viewed as an attempt to secure a nullified verdict. See United States v. Rosado, 728 F.2d 89,
93 (2d Cir. 1984) ([Defendants] invited jury nullification by [bringing into
question at trial] the Governments motives in subpoenaing [defendants] and
prosecuting them for contempt.). This
Circuit's position on the issue of jury nullification (and the secondary issue of
informing a jury of that power) is well settled. In
United States v. Washington, 705 F.2d 489 (D.C. Cir. 1983) the D.C. Circuit
unequivocally expressed its opposition to attempts by counsel to secure a nullified
verdict and rejected the argument that the jury should be informed of any power they may
possess to nullify an otherwise guilty verdict, stating:
It
cannot be gainsaid that juries can abuse their power and return verdicts contrary to the
law and instructions of the court, and thus nullify the criminal law, but courts generally
have refused to give such an instruction to the jury. . . .
A jury has no more right to find a guilty defendant
not guilty than it has to find a not guilty defendant guilty,
and the fact that the former cannot be corrected by a court, while the latter can be, does
not create a right out of the power to misapply the law.
Such verdicts are lawless, a denial of due process and constitute an exercise of
erroneously seized power.
Id.,
705 F.2d at 494 (internal citations omitted).
Consequently, this Court should preclude defense counsel from continuing to raise
these issues before the jury either in argument or questioning. Moreover, because the jury has been exposed to
these issues, a correcting instruction should be provided.[6] III.
CONCLUSION
The Federal Rules of Evidence, when properly adhered to by trial counsel, enable
the trier of fact to focus on the sufficiency of the evidence to determine, beyond a
reasonable doubt, whether the defendant committed the offenses alleged in the Indictment. To ensure that this indictment is
adjudicated on the merits, and only on the merits, defense counsel should be precluded
from presenting evidence or argument before the jury (1) concerning race or racial
discrimination in an attempt to secure a nullified verdict, (2) alleging that persons
other than the testifying witness sought to make defendant Espy fail during his tenure as
Secretary Espy or were in some other fashion out to get defendant Espy, or (3)
attacking the nature of an Independent Counsel
investigation, or claiming improper motivation by the Government in its investigation and
prosecution of the defendant. Date: November 1,
1998.
Respectfully submitted,
OFFICE OF INDEPENDENT COUNSEL
In Re: Alphonso Michael (Mike) Espy
__________________________________
Donald C. Smaltz, Independent Counsel
Joseph P. Guichet, Assoc. IC
103 Oronoco Street, Suite 200
P.O. Box 26356
Alexandria, Virginia 22314
Tel: (703) 706-0010
Fax: (703) 706-0076
IN THE UNITED STATES DISTRICT COURT UNITED STATES
OF AMERICA
v. ALPHONSO
MICHAEL ESPY, Defendant Criminal
No. 97-0335 (RMU ORDER
Upon consideration of the United States Motion to Preclude Irrelevant
Evidence and Request For a Cautionary Instruction, and any opposition thereto, and good
cause appearing,
IT IS HEREBY ORDERED that the defendant and his counsel is prohibited raising,
mentioning, suggesting, or referencing defendants race or any alleged racial
discrimination;
IT IS FURTHER ORDERED that the defendant and his counsel are directed not to refer
to the size or expenditures of the Office of Independent Counsel, the motivation for the
investigation and prosecution of this case, or overzealousness of the prosecuting agency,
or ask witnesses questions designed to elicit testimony regarding any of these issues; and
IT IS FURTHER ORDERED that this Order may be modified for good cause shown provided
the matter is first raised with the Court in camera. Dated: _______________
_____________________________
RICARDO M. URBINA
UNITED STATES DISTRICT JUDGE
GOVERNMENTS PROPOSED CORRECTIVE INSTRUCTION
There
has been testimony by witnesses and statements by counsel emphasizing the defendants
race. Defendant Espys race is
irrelevant to your determination of innocence or guilt and must not be considered by you
in any way when you are asked to decide this case. Upon
first entering this courtroom to serve as jurors, you took an oath to render a verdict
based on the evidence received and to not be persuaded by bias, prejudice, or sympathy. It is indeed your legal obligation to render a
verdict based on the relevant evidence. And I
now instruct you that the defendants race should not be considered by you in
rendering that verdict.
You
have also heard testimony speculating as to whether the investigation of defendant began
because of some persons with bad motives. This
evidence is also irrelevant to your determination and must not be considered by you in any
way when it is time for you to decide your verdict. The
question that will be placed before you, after all the evidence has been presented, is
whether the government has proven beyond a reasonable doubt that the defendant violated
the law. Why the government began
investigating defendant Espy does not impact the question of whether or not he violated
the law. Consequently, I instruct you not to
consider this evidence during your deliberations. [1]
See also 10/1/98 Trial Tr. at 144-146 (although not specifically noting
race, asserting that Espy believed there to be a Republican plot to get [defendant]
and the he had to watch out for . . . Jeffrey Rush.) [2]
Of course defense counsel is free to inquire as to a witness bias. If counsel has a good faith basis for asking the
question, he may inquire of a witness whether that witness wished defendant Espy to fail. However, the motivation for such desire would
still be irrelevant and should not be inquired of. In
the event counsel wishes to ask a witness a question regarding race, the United States
respectfully submits that a proffer should be required. [3]
Even if there were any probative value in such arguments, that value would be
substantially outweighed by their potential for unfair prejudice and likelihood of
misleading the jury. See Fed. R. Evid.
403. [4]
Claims of outrageous government conduct and selective prosecution are issues of law
to be decided by the court. United States
v. Washington, 705 F.2d 489, 495 (D.C. Cir. 1983) (outrageous government conduct
claims and selective prosecution claims are legal issues for the court and not to be
presented to the jury); see also United States v. Mosley, 965 F.2d 906, 909 &
n.3 (10th Cir. 1992) (claim of outrageous government conduct, which focuses on governments
behavior rather than that of the defendant, may be presented to the court as a motion to
dismiss; it is not an affirmative defense to be presented to the jury). [5]
As defense counsel stated during opening statements, there is no dispute that
defendant received the tickets alleged in the indictment; rather, the key issue for the
jury to decide is Did Mike Espy believe he was doing anything wrong? 10/1/98 Trial Tr. at 125-126. [6]
A proposed instruction is attached as Exhibit B.
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