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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA UNITED STATES OF AMERICA v. JACK L. WILLIAMS and ARCHIBALD R. SCHAFFER, III, GOVERNMENTS OMNIBUS OPPOSITION TO
DEFENDANTS MOTIONS
TO DISMISS AND MOTION FOR DISCLOSURE OF GRAND JURY INSTRUCTIONS I. INTRODUCTION
On September 17, 1996, a federal grand jury returned a two-count indictment against
defendant Jack L. Williams charging him with false statements. Trial of that matter
commenced on March 17, 1997 and a jury found defendant Williams guilty on both counts. Following the granting of defendants motion
for a new trial, a superseding indictment was returned on September 30, 1997 charging
Williams with two additional counts of violating the Meat Inspection Act (21 U.S.C. §
622) as well as the two counts of making false statements to federal agents (18 U.S.C. §
1001).
On January 15, 1998, the grand jury returned a fifteen-count superseding
indictment. This indictment added defendant
Archibald R. Schaffer, III, and alleged multiple violations of federal law. These counts
are summarized in Section III of this Opposition.
On March 18, 1998, defendants Williams and Schaffer filed eleven motions and
memoranda in support thereof, ten of which seek an order from this Court dismissing
portions of the second superseding indictment, pursuant to Fed. R. Crim. P. 12(6), and one
motion, under Fed. R. Crim. P. 6(e)(3)(C)(ii), seeking disclosure of the grand jury
instructions as they related to the gratuities counts.
In certain instances, defendants have also requested an oral hearing on specified
motions, pursuant to Local Rule 108(f). For
the reasons set forth below, all of defendants motions should be denied without a
hearing. II. FACTUAL BACKGROUND
During the period 1993-94, defendant served as Vice President in charge of Media,
Public and Governmental Affairs of Tyson Foods, Inc. (Tyson Foods or TFI). (Indictment ¶ 2(c)). Tyson Foods is a multi-billion dollar company
which produces and markets, among other things, poultry and red meat products nationally
and internationally. (Id. ¶ 2). Defendant Schaffers responsibilities
included, among other things, supervision of the companys lobbying activities. (Id.).
Defendant Jack L. Williams is a lobbyist who represented the interests of Tyson
Foods before various governmental agencies including the United States Department of
Agriculture (USDA). (Id. ¶
2(d)(i)). In regard to his lobbying
activities, defendant Williams primarily reported to defendant Schaffer. (Id. ¶ 2(d)(2)). Tyson Foods did business with, had matters pending
before, and conducted activities regulated by the U.S. Department of Agriculture. (Id. ¶ 3).
As representatives of Tyson Foods, defendants, along with Tyson Foods, were
prohibited sources under the Meat Inspection Act. (Id.
¶ 12). During his tenure as a lobbyist for
Tyson Foods defendant Williams, in conjunction with defendant Schaffer, and on behalf of
Tyson Foods, provided things of value to officials at USDA and to the girlfriend of the
Secretary of Agriculture including (1) tickets to the Presidential Inaugural Dinner, (2)
travel, accommodations and amenities related to the Tyson birthday party weekend in
Russellville, Arkansas for the Secretary and his girlfriend, (3) a scholarship to the
Secretarys girlfriend, (4) tickets to an NFL playoff game for the Secretary and his
girlfriend (along with other items which included her airline ticket to attend the game),
and (5) a ticket to a University of Arkansas basketball game and an airline ticket upgrade
to first class for the Acting Assistant Secretary of Marketing and Inspection Services,
USDA. (Id. ¶ 17).
Subsequent to publication of an article in the Wall Street Journal on March
17, 1994 which alleged that Tyson Foods had provided gifts to the Secretary and Acting
Assistant Secretary of Agriculture, the Office of Inspector General, USDA (OIG)
opened an investigation into the now public allegations.
(Id. ¶ 35). The following
month the Federal Bureau of Investigation (FBI) also opened an investigation.[1]
(Id. ¶ 39). During the course
of these two inquiries, defendant Williams made false statements to OIG and FBI special
agents. In addition, the conspiracy charge
alleges that defendant Schaffer made false statements to FBI special agents. (Id. ¶ 22). III. THE INDICTMENT
The indictment alleges straightforward charges and squarely informs defendants of
the nature of the allegations against them. The
information contained in the indictment sufficiently puts them on notice to adequately be
prepared to defend at trial. Count One
alleges that defendants, in combination with unindicted co-conspirators, knowingly
conspired to defraud the United States and its citizens of the honest services of
Secretary of Agriculture Alphonso Michael Espy (Secretary of Agriculture Espy
or the Secretary), and to commit substantive violations of the gratuity, meat
inspection and false statement provisions of the United States Code. (Id. ¶ 19).
Count Two charges defendant Schaffer with devising a scheme to defraud the United
States of the honest services of Secretary of Agriculture Espy by which he knowingly
caused to be delivered to the Secretary, via the United States Postal Service, an
invitation dated April 26, 1993 from the Arkansas Poultry Federation soliciting the
Secretarys attendance to an event scheduled for May 15, 1993 (Id. ¶27). This event coincided with a party hosted by Tyson
Foods, Inc. (Id.).
Counts Three through Six allege that defendants, in furtherance of a scheme to
defraud the United States of the honest services of the Secretary, transmitted or caused
to be transmitted by means of wire communications through interstate commerce (i) a
telefax letter transmitted by defendant Schaffer in Springdale, Arkansas, on April 27,
1993, inviting the Secretary to attend the Arkansas Poultry Federation event on May 15,
1993; (ii) a telefax communication from defendant Schaffer to the Secretary forwarding
travel and lodging information related to the Tyson birthday party weekend on May 15-16,
1993; (iii) a telefax communication from Tyson Foods in Springdale, Arkansas to defendant
Williams forwarding a blank scholarship application for the Secretarys girlfriend;
and (iv) a telephone communication between defendant Williams and Don Tysons
personal secretary regarding travel and lodging arrangements for the Secretary and his
girlfriends attendance at the Dallas Cowboys/Green Bay Packers playoff game on
January 16, 1994. (Id. ¶ 29).
Counts Seven through Nine aver that defendants, on behalf of Tyson Foods, gave,
paid and offered to USDA officials things of value which included the amenities relating
to the Tyson birthday party weekend, the weekend football trip to Texas for the Dallas
Cowboys/Green Bay Packers playoff game, and a skybox seat at the University of
Arkansas/Vanderbilt basketball game and first class upgrade of an airline ticket, totaling
$5,018, with the intent to influence USDA officials in the performance of their duties
under the Meat Inspection Act. (Id. ¶ 31).
As for Counts Ten through Thirteen, the indictment alleges that on or about the
period covering January 1993 and February 1994, defendants knowingly gave, offered and
promised things of value to public officials of USDA, for or because of official acts
performed or to be performed by the aforementioned public officials, totaling
approximately $11,018. These things of value
included (i) four seats at the Presidential Inaugural Dinner on January 18, 1993; (ii)
travel provisions and other amenities related to the Tyson birthday party weekend on May
15-16, 1993; (iii) travel, lodging and other amenities related to the Dallas Cowboys/Green
Bay Packers playoff game weekend; and (iv) skybox seat at the University of
Arkansas/Vanderbilt college basketball game and first class upgrade of airline ticket. (Id. ¶ 33).
Count Fourteen of the indictment alleges that during an interview on March 22,
1994, defendant Williams made a false statement to Office of Inspector General - USDA
agents. Williams stated that he had heard
only through rumor and news that Secretary of Agriculture Espy was a guest of Tyson Foods,
Inc. at the January 16, 1994 Dallas Cowboys football game and did not know if the
Secretary actually was a guest at such a game. (Id.
¶ 37). The indictment avers that the
statement was false because: the defendant[,] well knew[,] (i) he
paid for the airline tickets of the Secretarys girlfriend so that she could attend
the football game together with the Secretary of Agriculture as guests of Don Tyson and
Tyson Foods in their corporate skybox at Texas Stadium and (ii) he discussed with Don
Tysons personal secretary, on or about January 10, 1994, arrangements for Secretary
Espy and his girlfriend to attend the Dallas Cowboys playoff game. Id.
Count Fifteen avers that defendant Williams made a false statement to special
agents of the Federal Bureau of Investigation in an interview conducted on June 9, 1994
when he said that: he did not remember talking to the
girlfriend of Secretary of Agriculture Michael Espy on the telephone at any time and
certainly not to make travel or other arrangements for her or Secretary Espy involving
Tyson Foods or any other client, (ii) he did not have her telephone number, (iii) he did
not know where she was employed, and (iv) he had no prior knowledge of Secretary Espys
social/travel plans, including the Secretarys attendance at the Dallas Cowboys/Green
Bay Packers football game on January 16, 1994. (Id. ¶ 42). The indictment asserts that this statement was
false because: the defendant[,] well knew[,] (i) on
or about December 10, 1993, he sent by facsimile transmission a blank application for
scholarship money from the Tyson Foundation to the Secretarys girlfriend at her
place of employment, (ii) on or about January 10, 1994, defendant [Williams] had a
telephone conversation with Don Tysons personal secretary concerning arrangements
for Secretary Espy and his girlfriend to attend the Dallas Cowboys playoff game, (iii) on
or about January 11, 1994, he placed a call to the Secretarys girlfriend at her
place of employment, (iv) on or about January 12, 1994, he caused Bell Travel to charge
airfare on American Airlines in the amount of approximately $1,009 to his personal VISA
account and to issue round trip airline tickets in the name of the Secretarys
girlfriend, (v) on or about January 13, 1994, [defendant] Williams caused his limousine
service driver to deliver airline tickets to the Secretarys girlfriend personally at
her place of employment, and (vi) on or about January 15-16, 1994, the Secretarys
girlfriend used the airline tickets provided by Williams to attend the Dallas Cowboys
playoff game with Secretary Espy as guests of Don Tyson and Tyson Foods. (Id.) IV. DISCUSSION A.
DEFENDANT WILLIAMS MOTION TO
DISMISS THE FALSE STATEMENTS COUNTS FOR FAILURE TO STATE AN OFFENSE HAS PREVIOUSLY BEEN
REJECTED BY THIS COURT AND IS, IN ANY EVENT, WITHOUT MERIT
Defendant Williams, pursuant to Fed. R. Crim. P. 12(b), moves for dismissal of
Counts Fourteen, Fifteen, and the portion of Count One which relates to the false
statements charged for failure to state an offense, arguing that 1) the statement made to
agents of the Office of Inspector General (OIG), USDA, on March 22, 1994 were
literally true and immaterial; and 2) prior to commencement of the June 9, 1994 interview,
agents of the Federal Bureau of Investigation (FBI) failed to protect
defendants due process rights by informing him that any false statement would
subject him to criminal liability. Defendants
motion should be denied for the reasons set forth below.
1.
Defendants Arguments That The False Statement Charged In Count Fourteen, And
A Portion Of Count One, Was Literally True And Immaterial Are Issues To Be Resolved By A
Jury
Defendant argues that the false statement made to the OIG agents in the March 22,
1994 interview, charged in Count Fourteen, and a portion of Count One of the Second
Superseding Indictment, was literally true and was not material; therefore cannot
form the basis for a prosecution under 18 U.S.C. § 1001, (Defendant Williams
Motion and Memorandum in Support of Motion to Dismiss the False Statement Counts of the
Second Superseding Indictment for Failure to State an Offense (Defs. Mem.)
at 1), and that the statement made was not capable of impairing or impeding the
functions of the OIG. (Defs. Mem. at 9.)
This argument has been raised previously by defendant in his numerous pretrial and
post-trial motions during the course of the first Williams proceeding, rejected by
this Court before, and -- more significantly-- rejected by a jury as well. More recently, defendant Williams raised this
issue in his pretrial motions addressing the first superseding indictment. The Government responded to these issues in its
Consolidated Opposition to Defendants Motion to Dismiss the Superseding Indictment
for Failure to State an Offense, Governments Opposition to Defendants Motion
for Judgment of Acquittal and Motion for New Trial, and Governments Opposition to
Defendants Motion to Dismiss the Superseding Indictment for Failure to State an
Offense. In its December 3, 1996 Order, the
Court expressly denied defendants motion to dismiss the false statement count
relating to the OIG interview, stating that the question [of] whether the statements
charged as false in Count I(a) were literally true is for the jury to decide. Id. at 1.
These issues have already been decided and because defendant does not address any
new issues in this matter, the Government invites the Courts attention to the
previously filed pleadings.
2.
Defendants Due Process Rights Were Not Violated Where FBI Agents Did Not
Inform Him That Any False Statement Would Subject Him to Criminal Liability
Defendant next
contends that his due process rights were violated when the FBI agents who conducted the
June 9, 1994 interview did not advise him prior to the commencement of the interview that
giving false statement during the course of the interview would subject the defendant to
criminal liability. As with the literal
truth/materiality argument, the due process argument likewise has been raised previously
by defendant in a pretrial motion relating to the first superseding indictment. The Government already has responded to these
issues in its prior opposition papers in connection with the first superseding indictment. Since the Governments position goes
unchanged, the Government again invites the Courts attention to the pleadings which
previously have been filed. B.
DEFENDANT WILLIAMS MOTION TO DISMISS COUNTS EIGHT, NINE, TWELVE, AND THIRTEEN
FOR LACK OF VENUE IS FRIVOLOUS
1.
Applicable Law
Venue is an issue that normally must be submitted to the jury. United States v. Lam Kwong-Wah, 924 F.2d
298, 301 (D.C. Cir. 1991), cert. denied, 506 U.S. 901 (1992). As such, the facts sustaining venue are not
appropriate subject for a pretrial motion to dismiss.
The Government has alleged conduct legally sufficient to uphold venue in the
District of Columbia and must prove the allegations by a preponderance of the evidence at
trial. Id.
If the Government proves the conduct alleged in the indictment, it will satisfy its
burden of proving venue for the Meat Inspection Act and gratuity counts in the District of
Columbia.[2]
Meat Inspection Act violations and gratuity violations -- similar to giving illegal
bribes -- are continuing offenses for venue purposes under 18 U.S.C. § 3237(a) (any
offense against the United States begun in one district and completed in another, or
committed in more than one district, may be inquired of and prosecuted in any district in
which such offense was begun, continued, or completed). Venue for such continuing offenses is appropriate
in any district in which the crime began, continued or was completed. The crimes charged are continuing offenses under
18 U.S.C. § 3237(a). United States v.
North, 910 F.2d 843, 912 (D.C. Cir. 1990) (gratuity is a continuing offense) (citing Goodloe
v. United States, 188 F.2d 621 (D.C. Cir. 1950), cert. denied, 342 U.S. 819
(1951)); United States v. Niederberger, 580 F.2d 63 (3d Cir.), cert. denied,
439 U.S. 980 (1978)(same); United States v. Stephenson, 895 F.2d 867, 874-75 (2d
Cir. 1990) (bribery is a continuing offense); see also, United States v. Cattle King
Packing Co., 793 F.2d 232, 239 n.4 (10th Cir.), (violations of Meat Inspection Act
held as continuing offenses under 18 U.S.C. § 3237), cert. denied, sub nom., Stanko v.
United States, 479 U.S. 985 (1986).
2.
Counts Eight, Nine, Twelve And Thirteen Are Properly Venued In The District Of
Columbia
Defendant Williams moves to dismiss Counts Eight, Nine, Twelve and Thirteen -- each
charging violations of the Meat Inspection Act, 21 U.S.C. § 622, or the gratuities
statute, 18 U.S.C. § 201(c)(1)(A) -- on the basis that the indictment does not allege
proper venue. His motion should be denied
because (1) proof of venue is an issue of fact for the jury and (2) the indictment alleges
facts which, if proven, are legally sufficient to support venue in the District of
Columbia.
The venue issue presented here is controlled by precedent firmly established in two
D.C. Circuit cases: North and Goodloe.
In North, 910 F.2d at 911-12, the defendant argued that he did not violate
the gratuity provision by accepting or receiving a gratuity -- a security fence for his
home -- in the District of Columbia. Rather,
he contended that if he received and accepted the gratuity then he did so where his
benefactor physically installed the fence: at Norths home in suburban Virginia. The D.C. Circuit rejected Norths claim
because venue may be appropriate in more than one district.
The Government proved at trial that North discussed installation of the fence in a
single conversation with his benefactor in the District of Columbia. Thus, in part, North accepted the fence in the
District of Columbia. Similarly, Williams
offered things of value in the District of Columbia by discussing with the Secretary and
Assistant Secretary the things of value that he later physically conferred on them. At trial, the United States will prove those
allegations by a preponderance of the evidence as required.
In Goodloe, the defendants were charged, in part, with attempting to bribe a
Government witness. 188 F.2d at 622. The defendants telephoned the witness from Washington, D.C. to Baltimore, Maryland. They then departed from Washington to Baltimore
where they actually offered money to the witness so the witness could leave town. The D.C. Circuit upheld venue for the attempted
bribery in the District of Columbia on the basis of the phone call to offer the bribe and
departure from Washington in order to physically attempt to give the bribe in Baltimore. Thus Williams actions in the District of
Columbia -- discussing and offering the things of value he later physically conferred upon
the Secretary and the Acting Assistant Secretary -- are alone sufficient to provide venue
in this district.[3]
As to the defendants gift of airline tickets to the Secretarys
girlfriend to travel to Dallas, Texas to attend the playoff football game and the benefit
Secretary Espy derived therefrom, the defendant purchased the tickets in Washington, D.C.
and they were delivered and physically given to the Secretarys girlfriend at her
place of employment in Washington, D.C. on January 13, 1994. Indictment, ¶25(d)(iv).
Finally, travel by the public officials -- and by the Secretarys girlfriend
-- so that the defendant could physically give the things of value also suffices to
establish venue in the District of Columbia. See
Goodloe, supra; see also Niederberger, 580 F.2d at 69-70 (defendant
public official accepted things of value in Pittsburgh by departing from Pittsburgh to fly
to location where things of value were actually given).
The Acting Assistant Secretary traveled with a first class upgrade,
given to her by Williams, to Washington National Airport.
Indictment, ¶25(e)(iii)(1). Additionally,
the Secretarys girlfriend traveled from National Airport to Dallas with a ticket
provided by the defendant, and she and Secretary Espy returned to National Airport on
Sunday following the game. Id.,
¶¶25(d)(v) and (ix).
The defendants assertion that travel from Washington National Airport is not
travel in the District of Columbia is not supported by the cases he cites. Defendants cases never address whether
flights leaving from or arriving at National Airport travel through the District of
Columbia. Rather, they involve civil suits
brought for actions occurring at National Airport which is undisputedly located in the
Eastern District of Virginia. If necessary,
the government will prove at trial that flights taking off from and arriving at National
Airport necessarily travel through the District of Columbia, thereby proving venue in this
district. See United States v.
Ramirez-Amaya, 812 F.2d 813, 816 (2d Cir. 1987) (in drug importation case where
airplane landed at LaGuardia Airport, in Eastern District of New York, venue proper in
Southern District of New York because the plane flew over the Narrows, a body of water
within the joint jurisdiction of the Southern and Eastern Districts of New York) (citing United
States v. Williams, 536 F.2d 810, 812 (9th Cir.), cert. denied, 429 U.S. 839
(1976)).
In short, Counts Eight, Nine, Twelve and Thirteen cannot be dismissed for lack of
venue at this juncture. The allegations in
the indictment taken as true, as they must be on a motion to dismiss, amply establish
venue for violations of the Meat Inspection Act and the gratuities statute in the District
of Columbia. C.
DEFENDANT WILLIAMS MOTION TO DISMISS COUNTS ONE, FIVE, SIX, TWELVE, AND
THIRTEEN FOR PROSECUTORIAL VINDICTIVENESS IS MERITLESS
Defendant Williams Motion to Dismiss Counts One, Five, Six, Twelve, and
Thirteen of the Second Superseding Indictment on the Ground of Prosecutorial
Vindictiveness is, in all substantive respects, a repetition of Mr. Williams prior
motion to dismiss based on alleged prosecutorial vindictiveness. Thus, we respectfully adopt the Governments
Opposition to Defendants Motion to Dismiss Counts One and Two of the Superseding
Indictment on the Ground of Prosecutorial Vindictiveness, filed on January 6, 1998.
We noted in the Opposition that any presumption of vindictiveness is conclusively
rebutted, or does not arise at all, given our notification to Mr. Williams, prior to the
Courts grant of his motion for new trial, that he was going to be charged with
additional counts in any event. Moreover, our
notification to Mr. Williams that his decision not to plead guilty likely would result in
additional charges is expressly authorized by Bordenkircher v. Hayes, 434 U.S. 357
(1978).
Mr. Williams offers essentially no substantive response to either of these points. He alleges that the most recent superseding
indictment of Mr. Williams in fact charges him with more offenses, in addition to the
original false statements charges, than were initially mentioned by the prosecutor prior
to the grant of Mr. Williams motion for new trial.
Although the exact offenses are not explicitly listed, an examination of the
transcript excerpts appended to our initial Opposition shows that the government informed
Williams prior counsel of its intention to charge him with additional,
gratuities-related counts. Either way, however, the analysis is unaffected. Additional charges were planned. The government informed Williams before the court
granted his request for a new trial. Thus,
the additional charges could not have been in retaliation for Williams exercise of
his constitutional rights.
Williams contends that the Office of Independent Counsel informed him in advance of
its intention to charge him with additional offenses says nothing more than that the
OIC intended from the outset to force Mr. Williams to run a gauntlet designed to wear down
his defenses, and not designed as a search for the truth. Williams Vindictiveness Motion at 6. He contends that prosecuting him in more than one
case is not in societys interests, and that [t]hus exposed, the
OICs actions again raise the presumption of vindictiveness. Id. This
argument simply makes no sense. For a
prosecution to be vindictive, it must constitute retaliation for the exercise of a
constitutional right. Given that the
government plainly planned all along to charge Williams with additional offenses and so
informed him before his successful exercise of the constitutional right at issue,
the decision to charge him with additional offenses is per se not vindictive. If the government had decided to proceed via
sequential prosecutions in a concerted attempt to deplete Mr. Williams and societys
resources, that would be reprehensible. However,
it would not be vindictive, and would afford no basis for dismissal.
The fact is that the Office of Independent Counsel decided as early as September
1996 to proceed against Mr. Williams in two separate cases.
The first alleged false statements and the second alleged gratuities and related
offenses. That decision was a perfectly
legitimate exercise of prosecutorial discretion, and was made for reasons having nothing
to do with a desire to wear Mr. Williams down or waste his resources or this
Courts time. When a new trial was
ordered for Mr. Williams, the OIC eventually elected to proceed against Mr. Williams and
Mr. Schaffer via a single indictment charging false statements, gratuities and related
offenses.
Given the existence of conclusive record evidence to the effect that we had planned
to charge Mr. Williams with additional offenses well before he received a new trial, an
affidavit setting forth our rationale for proceeding in this manner would appear to be
unnecessary. Moreover, placing such an
affidavit on the record would invade the governments internal decision making
process and our prosecutorial discretion. However,
to the extent that the Court harbors any lingering concern about possible vindictiveness
in this prosecution after considering the clear record evidence to the contrary, we will
provide such an affidavit directly from the Independent Counsel. Should that become necessary, we would request
leave to provide the affidavit to the Court ex parte and in camera. D.
DEFENDANTS JOINT MOTION TO DISMISS COUNTS FIVE, SEVEN, EIGHT, ELEVEN, AND
TWELVE, AND PART OF COUNT ONE FOR FAILURE TO STATE AN OFFENSE UNDER THE FEDERAL GRATUITIES
STATUTE SHOULD BE DENIED AS PREMATURE
1.
The Factual Question Of Whether Defendants Gave The Things Of Value
Alleged Directly Or Indirectly Cannot Be Resolved On A Pretrial Motion To Dismiss.
Defendants next move for dismissal of Counts Five, Seven, Eleven, Twelve and part
of Count One on the ground that gifts to a third party do not constitute a violation of
the Meat Inspection Act or the gratuities statute, pursuant to Fed. R.Crim. P. 12(b). Rule 12(b) permits a defendant to raise a defense
which is capable of determination without the trial of the general issue. A defense is generally capable of
determination on a pretrial motion if it raises questions of law rather than fact. United States v. Shortt Accountancy Corp.,
785 F.2d 1448, 1452 (9th Cir.) (1986); United States v. Korn, 557 F.2d 1089, 1090
(5th Cir. 1977). In other words, pretrial
determination is appropriate where trial of the facts surrounding the commission of
the alleged offense would be of no assistance in determining the validity of the defense. United States v. Covington, 395 U.S. 57, 60
(1969).
For this reason, defendants defense that they did not give Secretary Espy any
of the gratuities alleged in Counts Five, Seven, Eight, Eleven, Twelve, and the relevant
portion of Count One, and therefore did not give, offer, or promise him anything of value
cannot be determined on a pretrial motion to dismiss.
It is purely a question of fact whether the gratuities alleged amounted to anything
of value to Espy.
The court addressed this situation in United States v. Sun-Diamond Growers of
California, 941 F. Supp. 1262, 1269-71 (D.D.C. 1996), reversed on other grounds,
1998 U.S. App. LEXIS 5277 (No. 97-3072) (D.C. Cir. Mar. 20, 1998), where the government
charged a donor with giving Secretary Espy gratuities under 18 U.S.C. § 201. In that case, the government charged a different
defendant with subsidizing Secretary Espys girlfriends travel on a similar
trip. The Court held that the alleged
benefit, coupled with any other intangible benefit that Secretary Espy may have received,
including [his girlfriends] companionship, warrants the submission of this matter
for the jury to determine whether in fact Secretary Espy received a benefit. Id. at 1270.
Here, as in Sun-Diamond, the question of whether Secretary Espy received a
thing of value from defendants act of subsidizing Espys girlfriends
travel as alleged in the meat inspection and gratuities counts is a fact question that can
only be resolved by the jury, not by the Court on a pretrial motion. Accord Sun-Diamond, No. 97-3072, slip op.
at 13 (we reject Sun-Diamonds broad attack on the indictment).
Defendants argue that the aforementioned counts must be dismissed because the
gratuities at issue were provided to Espys girlfriend. Therefore, according to
defendants logic, these gifts could not have been of value to Espy, but only to a
third party. This cramped argument
erroneously assumes that the only person who could possibly benefit from the transfer of a
gratuity is the direct recipient. To the
contrary, there is no logical reason why someone other than the recipient of a gratuity
cannot derive a benefit -- i.e., receive a thing of value -- from the
transfer.
In Sun-Diamond, the Court addressed this issue in detail. While the funds did not initially go to Espy, he
nevertheless received a thing of value.
941 F. Supp. at 1269. The court held
a thing of value can constitute both tangible benefits, such as money,
and intangible benefits, such as companionship.
Id.
The district courts analysis of this issue in Sun-Diamond is
incontestable. The broad statutory language
anything of value found in the Meat Inspection Act, as well as Section 201,
cannot be limited to money or commercially available goods.
Similar language in various criminal statutes has been held to encompass both
tangible and intangible benefits. United
States v. Nilsen, 967 F.2d 539, 542 (11th Cir. 1992), cert. denied, 507 U.S.
1034, 113 S.Ct. 1856 (1993) (thing of value in 18 U.S.C. § 876 includes
intangible objectives.) See also United
States v. Marmolejo, 86 F.3d 404, 410-412 (5th Cir. 1996) (conjugal visits with
prisoner is a thing of value); United States v. Girard, 601 F.2d 69, 71
(2d Cir.), cert. denied, 444 U.S. 871, 100 S.Ct. 148 (1979) (sale of DEA files is
an intangible thing of value, and citing cases which hold thing of value
includes amusement, sexual intercourse, promise to reinstate an employee, and agreement
not to run in election). Courts have focused
on the value which the defendant subjectively attaches to the items received. United States v. Gorman, 807 F.2d 1299,
1305 (2d Cir. 1986) (citing United States v. Williams, 705 F.2d 603, 623 (2d Cir.
1983) (stock in fictional company constituted a gratuity)).
Just as in Sun-Diamond, Espy may not have himself received cash or the
gratuities provided to his girlfriend (i.e., the scholarship, the amenities related
to the May, 1993 trip to Russellville, Arkansas, and the amenities related to the January,
1994 trip to Dallas, Texas), but he surely received something of value from Williams and
Schaffer. This is all that the statutes
require. Sections 622 and 201 explicitly
proscribe the giv[ing], pay[ing] or offer[ing], directly or indirectly,
of any money or other thing of value. (emphasis
added).
The language of the statutes is unequivocal -- it forbids both direct and indirect
gratuities. See Park N Fly, Inc. v.
Dollar Park and Fly, 469 U.S. 189, 194 (1985) (Statutory construction must begin
with the language employed by Congress and the assumption that the ordinary meaning of
that language accurately expresses the legislative purpose.); Norfolk &
Western v. American Train Dispatchers Association, 499 U.S. 117, 128 (1991) (As
always, we begin with the language of the statute and ask whether Congress has spoken on
the subject before us. 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.) (citing Chevron U.S.A.,
Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-843 (1984)).
Sections 622 and 201 clearly prohibit both direct and indirect gifts of anything
of value to a USDA official or a public official respectively. Here, there can be no question that Secretary Espy
received a benefit from the gratuities given to his girlfriend, but in any event the
proof, one way or the other, must await trial. Thus,
although defendants Williams and Schaffer did not initially provide the things of value
charged to Espy, the Secretary received direct and indirect benefit from the things of
value given. The provisions of the Meat
Inspection Act and 18 U.S.C. § 201 required nothing more.
2.
Whether Or Not The Scholarship Awarded To Patricia Dempsey Was A Thing Of Value To Secretary Espy,
And Whether In The Giving Of The Award To Patricia Dempsey Defendants Defrauded The United
States And Its Citizens Of The Honest Services Of Secretary Espy Is A Question For The
Jury.
In a separate argument, defendants further assert that Counts One and Five of the
second superseding indictment fails to allege that the scholarship award to Patricia
Dempsey caused the United States and its citizens to be defrauded, averring that the
awarding of the scholarship was not done by deceit, craft, or trickery. Nor was its grant by means that were dishonest
since . . . . the scholarship was of no benefit to Secretary Espy. (Defs Mem. at 7) The essence of defendants
argument is grounded on the supposition that there could have been no conspiracy to
defraud since no dishonesty existed in the transfer of scholarship. Consequently, Secretary Espy received no benefit
from Dempseys receipt of the scholarship. Whether
or not dishonesty played a part in the awarding of the scholarship depends upon whether or
not the scholarship to Dempsey was a thing of value to Secretary Espy. As with the previous argument, this is a question
of fact for the jury, and for the reasons indicated above cannot be decided by the Court
on a pretrial motion to discuss. E.
DEFENDANTS JOINT MOTION TO DISMISS THE MEAT INSPECTION ACT COUNTS FOR FAILURE
TO STATE AN OFFENSE SHOULD BE DENIED ON THE MERITS, OR IN THE ALTERNATIVE, SHOULD AWAIT
RESOLUTION BY THE D.C. CIRCUIT
Defendants present no reason for departing from the clear prohibition in 21 U.S.C.
§ 622 against an individual giving anything of value to an officer or employee of
the United States authorized to perform any of the duties prescribed by [the Meat
Inspection Act] . . . with intent to influence said ... officer or employee. Both
the Secretary and Acting Assistant Secretary had duties prescribed under the Meat
Inspection Act. Nothing in the statutes
language or history supports a conclusion that the Act does not cover them. Although the defendants ask this Court to perceive
some ambiguity in the statute or to address the constitutionality of its penalty
provisions, both exercises are unwarranted given the statutes plain language. The
Government fully briefed this issue in its Opposition to Defendants Motion to
Dismiss the Superseding Indictment for Failure to State an Offense filed January 6, 1998,
and incorporates by reference the arguments at pages 8-25 therein.
With the exception of a four-and-one-half page discussion of Judge Urbinas
dismissal of three counts charging that Secretary Espy accepted illegal gratuities in
violation of section 622 of the Federal Meat Inspection Act of 1907, 21 U.S.C. § 622, see
United States v. Espy, --- F. Supp. ---, 1997 WL 795807, *20-21 (D.D.C. December
23, 1997), defendant Schaffer has joined Williams in refiling the latters prior
motion verbatim. The matter currently is on
appeal to the D.C. Circuit, which has reserved decision following oral argument on March
25, 1998.
The Governments position is that Judge Urbina misinterpreted the broad
language of the statute which necessarily includes the Secretary and the Acting Assistant
Secretary. Both, in fact, were officers or
employees authorized to perform duties under the Act.
In addition, Judge Urbina ignored recent decisions
of the Supreme Court that support the Governments position. See Brogan v. United States, 118 S.Ct. 805
(1998) (validating the proposition that while Congress may intend to address a limited
evil, statutory language often proscribes a broader set of practices). The Government already has briefed all of the
issues raised by the defendants in this new motion and awaits the decision of the D.C.
Circuit in Espy which will dispose of the matter. F.
DEFENDANTS JOINT MOTION TO STRIKE PREJUDICIAL SURPLUSAGE FAILS TO MEET THE
EXACTING STANDARD AGAINST JUDICIAL REWRITING OF AN INDICTMENT
1.
Legal Standard: Surplusage Is Ordered Stricken In
Only The Rarest Instances
The defendants analysis of the case law of surplusage is misleading and
incomplete. Although Fed. R. Crim. P. 7(d)
provides district courts with wide discretion over motions to strike surplusage from an
indictment, United States v. Poindexter, 725 F. Supp. 13, 35 (D.D.C. 1989), revd
on other grounds, 951 F.2d 369 (D.C. Cir. 1991), surplusage should only be stricken in
rare instances when three distinct criteria are met: when the language requested struck is
(1) not relevant to the charges; (2) inflammatory; and (3) prejudicial. See United States v. Rezaq, 908 F.
Supp. 6, 8 (D.D.C. 1995), affd, 134 F.3d 1121 (D.C. Cir. 1998); see also
Dranow v. United States, 307 F.2d 545 (8th Cir. 1962); Charles A. Wright, Federal Practice and Procedure:
Criminal § 127, at 426 (2nd ed. 1982). However,
if the evidence of a challenged allegation is admissible and relevant to a charge in the
indictment, the wording should not be stricken even if it may be prejudicial. United States v. Weinberger, Crim.A.No.
92-235, 1992 WL 294877 (D.D.C.) (Sept. 29, 1992).
This circuit disfavors motions to strike surplusage. United States v. Watt,
911 F. Supp. 538, 553 (D.D.C. 1995). The
standard under Rule 7(d) has been strictly construed against striking surplusage. Id. (quoting United States v. Jordan,
626 F.2d 928, 930 n.1 (D.C. Cir. 1980)); see also United States v. Poindexter, 725
F. Supp. 13, 35 (D.D.C. 1989). As recently
re-emphasized by the D.C. Circuit in United States v. Oakar, 111 F.3d 146, 157
(D.C. Cir. 1997):
The scope of a district court's
discretion to strike material from an indictment is narrow . . . . United States v. Jordan, 626 F.2d at 931
n.1. Words of description of what is
legally essential to the charge in the indictment cannot be stricken as surplusage.
WRIGHT, FEDERAL PRACTICE AND PROCEDURE: CRIMINAL
§ 127, at 426. Material that can fairly be
described as surplus may only be stricken if it is irrelevant and prejudicial. Id.; see also United States v. Rezaq,
908 F. Supp. 6, 8 (D.D.C. 1995); United States v. Poindexter, 725 F. Supp. 13, 35
(D.D.C. 1989).[4]
The D.C. Circuit is not alone in its
disfavor of the practice of re-crafting an indictment returned by a grand jury in a
line-by-line re-examination of the charging instrument.
Watt, 911 F. Supp. at 554. See,
e.g., United States v. Marker, No. L94-40002-01-SAC, 1994 WL 192018, at 8 (D. Kan,
Apr. 15, 1994); United States v. DePalma, 461 F. Supp. 778, 797 (S.D.N.Y. 1978).
Accordingly, striking surplusage from an indictment, although permissible, is
by no means mandatory. Rezaq,
908 F. Supp. at 8. The standard which a
district court applies to determine whether to strike language from an indictment is
exacting, done only in the rarest of instances. Id;
see Poindexter, 725 F. Supp. at 35 (citing Jordan, 626 F.2d at 931 n.1 (Rule 7(d)
has been strictly construed against striking surplusage)).
A defendant must overcome a most severe burden to warrant striking
language from an indictment. Watt, 911
F. Supp. at 553. The defendants fail to
overcome this burden, much less acknowledge that this burden exists. This is not one of the rare instances referred to
by Rezaq, 908 F. Supp. at 8. The
language of the indictment should remain as currently written.
2.
The Terms In The Indictment Are Not Surplusage
a.
Paragraphs 11 and 12 Provide Necessary Background for the Indictment.
Paragraphs 11 and 12, in the governments section entitled Background to
All Counts, serve the critical function of providing necessary factual and legal
background for the jury enabling them to understand the full scope of the defendants
activities by placing the defendants conduct in its appropriate context. Consequently, striking these paragraphs would be
wholly inappropriate. Watt, 911 F.
Supp. at 554. In Watt, the district
court held that when an Independent Counsel based an indictment on multiple counts that
implicate a wide range of the defendants professional activities . . .
background information is undoubtedly helpful.
Id. (explaining the duties owed
to the public by Cabinet officials is a key to a jurys understanding of these counts). Paragraphs 11 and 12 define the relationship
created between the defendants and USDA because of defendants Williams and Schaffers
occupations.
The government has charged the defendants with a wide range of activities. The
government alleged that the defendants gave things of value on multiple occasions and
conspired to defraud the United States of America, by interfering with and obstructing
lawful governmental functions of the United States Department of Agriculture concerning
its right and the right of the citizens of the United States to the honest services of
Secretary Espy, free from deceit, fraud, dishonesty, conflict of interest and unlawful
compensation. To understand the nature and
gravity of these allegations, these gratuities must be placed in the proper context. The jury must be able to understand the relation
between the defendants, the defendants employer, and member of the Presidents
Cabinet responsible for regulating the defendants industry. 5 U.S.C. § 7353 clearly defines what is
permissible in this relationship, and even more clearly defines what is not.
Watt held that this type of background information is particularly useful in
cases involving perjury, false statements, and obstruction of justice. See Watt, 911 F. Supp. at 554. This indictment contains two false statements
counts against Williams (Indictment Counts 14-15) and additional false statement
allegations against Schaffer in the conspiracy charge (Indictment Count 1). In Poindexter, Judge Greene reasoned
that it would be difficult, if not impossible, for the jury to understand the
defendants allegedly false statements and obstruction without [such] background. 725 F.Supp at 37.
Judge Hogan expressed a similar sentiment in United States v. Weinberger,
noting that the Office of Independent Counsel had a legitimate need to place the
defendants actions in context and to establish the defendants state of mind,
intent and motives. Watt, 911 F.
Supp. at 554 (quoting Weinberger, No. 92-235, 1992 WL 294877 (D.D.C. Sept. 29,
1992)). The relationship between the
defendants, the Department of Agriculture, the Secretary of Agriculture, and the
prohibition on gratuities, must be placed in the context of 5 U.S.C. 7353 in order to
understand what honest services the defendants deprived by their actions..
Background information relevant to the charges the government intends to prove at
trial is not considered surplusage. United
States v. Hill, 799 F. Supp. 86, 88-89 (D. Kan. 1992) (citing United States v.
Climatemp, Inc., 482 F. Supp. 376, 391 (N.D. Ill. 1979), cert. denied, 462 U.S.
1134 (1983) (if the language in the indictment is information which the government
hopes to properly prove at trial, it cannot be considered surplusage no matter how
prejudicial it may be (provided, of course, it is legally relevant).)). Here, the Background section of the Indictment
consists of matters that the government intends to prove and which are necessary to
explain the substantive counts to the jury. Moreover,
the Background section provides the jury with a description of the scheme and
artifice to defraud that forms the predicate acts for Counts 1 through 6. Thus, it constitutes a plain, concise and
definitive written statement of the essential facts constituting the offense charged. Fed. R. Crim. P. 7(c)(1).
Although the defendants lengthy recitation of the history, surrounding facts,
and resulting law review articles related to United States v. Mandel, 415 F. Supp.
997, supplemental op., 415 F. Supp.1025 (D. Md. 1976), affd in part and
vacated in part, 591 F.2d 1347 (4th Cir. 1979), is mildly interesting, it is not
relevant to the case at bar. The defendants
cite Mandel for the proposition that the term prohibited source is
surplusage because it is not part of the United States Code and its consequent use in a
federal indictment is prejudicial. Id.
at 1009. The defendants fail to contend with Poindexter,
725 F. Supp. 13. Poindexter explains
why District of Columbia courts interpret Mandel differently. While possibly controlling in Maryland, Mandel is simply not the seminal
case, nor leading case on this subject in the District of Columbia. (Defendants Memo at 5.)
The defendant in Poindexter claimed that the term Boland amendment
was surplusage because the amendment did not apply to National Security Council employees
and consequently, the indictment could not charge that the defendant violated it. 725 F.Supp. at 36.
Mandel involved indictment language referring to the Maryland State
Employees Code of Ethics. 415 F. Supp. at
1009. The court in Poindexter noted
that this Code of Ethics formed merely one of many possible indicia of an intent to
deceive. 725 F. Supp. at 36 n. 48. Moreover, the court opined, the Code of Ethics
would probably not be admissible into evidence. Id. Title 5 U.S.C. § 7353 is not one of many laws
that show possible indicia, it is the benchmark that demonstrates this important fact in
the case.
Poindexter further pointed out that the term Boland amendment is
different from the state law in Maryland. 725
F. Supp. at 36. Since Boland
amendment restrictions were the focus of the investigation, the court held that
eliminating the term would be the equivalent of performing Hamlet without the
Prince of Denmark. Id. Likewise,
the term prohibited source has been at the crux of the Independent Counsels
investigation since the Office of Inspector General first began its investigation. The term is at the heart of the illegality of the
defendants alleged conduct.
The final regulations issued by the United States Office of Government Ethics,
codified as Standards of Ethical Conduct for Employees of the Executive Branch, 5
C.F.R. § 2635, prohibited the Secretary of Agriculture from soliciting or accepting,
directly or indirectly, a gift from a prohibited source or a gift given to him because of
his official position. 5 C.F.R. §§ 2635.202
(a)(1)&(2).[5]
The regulations prohibit government employees from soliciting or coercing a gift,
accepting gifts from the same or different sources on a basis so frequent that a
reasonable person would conclude that he used his public office for private gain, or
unlawfully accepting gifts in violation of any statute.
Id. at §§ (c)(1)(2)(3) & (4). Paragraphs
11 and 12 go directly to the intent element the government will to prove at trial.
The Standards of Ethical Conduct for Employees of the Executive Branch
defines a prohibited source as any person who seeks official action by (in this case) the
Department of Agriculture (USDA), does business or seeks to do business with USDA,
conducts activities regulated by USDA, has interests that may be substantially affected by
performance or non-performance of Secretary Espy in his duties as Secretary of USDA, or is
an organization whose members either have business or seek to do business with USDA,
conduct activities regulated by USDA, or have an interest that may be substantially
affected by Espys performance or non-performance of his duties as Secretary. 5 C.F.R. §§ 2635.203 (d)(1)-(5). As professionals engaged in governmental affairs
and lobbying, defendants understood the relationship they had with the Secretary. They chose to ignore the boundaries that this
relationship created and knowingly transgress these rules.
In addition, 18 U.S. C. § 201 (c)(1)(A),[6]
adopts the definition of official act,
in prohibiting a public official from accepting anything of value for or because of any
official act, as any decision or action on any question, matter, cause, suit,
proceeding or controversy, which may be pending . . . [before the public official]. 18 U.S. C. § 201 (a)(3). Consequently, in bringing a charge under the
statute, the government will identify the defendants as being prohibited sources, and then
prove the matters they had pending before the USDA.
In United States v. Whitehorn, 710 F. Supp. 803 (D.D.C. 1989), the court
held that the term violent was not unduly prejudicial, even though the
defendant was not charged with a crime where violence was an element. Id. at 820.
The court held that because the jury would hear evidence about the defendants
violent behavior from the first day of trial, with opening argument and evidence
referring directly to bombings their attention would be focused on violent crime,
and consequently, the jurors would not be prejudiced.
Id.
Moreover, when a term is the best descriptive term, it is the one that should be
used in the indictment. See Whitehorn,
710 F. Supp. at 820. In Whitehorn the
court opined that violent, as defined by the dictionary, was the most clear
and concise way to describe a bomb blast; stating it is difficult to conclude that
the deliberate setting off of bombs in a number of buildings are not acts of violence. Id. Other
District of Columbia courts have echoed this sentiment.
Cf. Hubbard, 474 F. Supp. at 82 (holding that colorful words were
prejudicial when less colorful, more accurate, words would suffice).
Prohibited sources are sources that Department of Agriculture employees
are prohibited from dealing with in a professional capacity because these dealings would,
at the very least, create appearances of conflicting interests. This term is the clearest, most innocuous way to
describe these entities. The defendants
unquestionably were prohibited sources and this language clearly sets out their
relationship with USDA and the Secretary. Not
only will prohibited source be addressed at trial, the term describes those
who have matters before the USDA are forbidden as a source of gifts, meals and other
things of value, and must remain in the indictment. See
United States v. White, 766 F. Supp. 873, 886 (E.D. Wash. 1991) (terms that describe
relevant piece of evidence, which many witnesses will use, are not appropriately stricken
as surplusage).
The defendant cites Judge Urbinas decision in United States v. Espy for
the proposition that paragraphs 11 and 12 should be stricken. 1997 WL 795807.
Judge Urbina excised the term prohibited source because he found that
in Secretary Espys indictment, the term did not provide any additional insight
into the charges against the defendant, but only serves to suggest to the jury that the
defendants alleged receipt of gratuities from these entities constitute criminal
conduct before he has an opportunity to defend himself. Id. at 18.
Judge Urbina added, however, that another term should be employed to describe
these entities without altering the essential substance of the indictment. Id. Striking
¶¶ 11 and 12, as the defendants wish, clearly would alter the substance of the
indictment. As stated previously, the federal
law relating to gifts and prohibited sources is the crux of the deprivation of honest
services charge. Paragraphs 11 and 12 provide
important insight into the charges against the defendant.
The government is at a loss to find a term that is more accurate, concise, or
neutral. The language in ¶¶ 11 and 12
describes the necessary concepts in the most neutral manner possible. Under federal law, certain entities may not give
gifts to members of the Department of Agriculture -- these entities are prohibited
sources. Judge Urbina called for a more
neutral term than prohibited sources to be employed to describe these
entities. See Espy, 1997 WL 795807, at
18. If one looks up prohibited
in the thesaurus, one finds words such as forbidden, banned, and outlawed. Websters
Collegiate Thesaurus. Compared to the
terms outlawed or forbidden, the word prohibited is
clearly the most concise and least inflammatory.
These paragraphs must remain and the defendants motion to strike surplusage
should be denied.
b.
The General Charging Language Contained in the Indictment is Neither Irrelevant Nor
Prejudicial and Should Not be Stricken Simply Because the Defendant Would Have Written the
Indictment Differently
Defendants argue that certain phrases in the indictment constitute surplusage. However, each of these terms relates to proof to
be offered at trial and/or other charges in the indictment.
The defendants attempt to have this Court rewrite the indictment to their liking
under the guise of eliminating language that improperly suggests to the jury that
Messrs. Schaffer and Williams are charged with offenses and conduct in addition to those
identified by the Indictment. (Def.'s Surplusage Mem. at 13). These claims are meritless.
The defendant cites Whitehorn, 710 F. Supp. at 803, for the proposition that
certain terms are always prejudicial based on the word itself and not the words
meaning. This represents an incomplete
reading of the case. Sometimes, terms like
among others and but not limited to can be prejudicial when they
exist for no sufficient reason. See id.
at 819; see also United States v. Hubbard, 474 F. Supp. 64, 82 (D.D.C. 1979)
(finding that terms were prejudicial when they serve no useful purpose). However, only when [t]he government has
been unable to point to any purpose that might be served by [this] language is it
prejudicial. Whitehorn, 710 F. Supp.
at 810. The language in the indictment is relevant and in no way unfairly prejudices the
defendant.
c.
The Specific Phrases Cited by the Defendant are not Surplusage:
(1)
In part and in substance
Paragraph 25(c)(i) of the indictment uses the term in part and in substance. This term simply refers to the fact that the
conversation did not exclusively deal with the issue of scholarship money; it dealt with
that issue, as well as several others that may come up at trial but are not directly
relevant to the conspiracy. It is difficult
to see how these five innocuous words could prejudice the defendant. According to the controlling law in this circuit,
this language should remain in the indictment.
(2) [I]n
part, and among other interests
In ¶ 13, the indictment lists several of the interests that Tyson Foods had before
the Department of Agriculture and former Secretary Espy.
These interests are important in understanding the regulatory relationship that
Tyson had with USDA and the gravity of the matters that formed this relationship. These interests and the great amounts of monies
at stake caused Tyson Foods to engage in the practice of lobbying in order to make sure
that the various branches of the federal government became aware of causes favorable to
Tyson.
The phrase [i]n part, and among other interests is used in the
indictment to show two issues that were before USDA during the time that the events
described in the indictment took place. Because
of the size of Tyson Foods and the wide scope of their business, other matters were
undoubtedly in front of USDA also. Listing
every conceivable matter Tyson had in front of USDA would only serve to make the
indictment confusing and imprecise, contrary to Fed. R. Crim. P. 7. This term in no way prejudices the defendant. The term [i]n part, and among other
interests is simply the most concise and neutral way to accurately portray the
relevant information. The government has a
compelling reason to keep this language in the indictment; without the phrase the
paragraph is inaccurate.
(3) Including
but not limited to and Various means and methods
The terms including
but not limited to and various means and methods also fail to clear the
high hurdle necessary to strike surplusage. As
the indictment delineates, the defendants used various means and methods to
mislead members of the federal law enforcement community.
If the indictment said they used only one method and means, the indictment would
fail because it would be inaccurate and would fail to notify the defendants of exactly
what they were being accused. See Russell
v. United States 369 U.S. 749, 763-64 (1962) (holding an indictment must clearly
inform the defendant of the precise offense for which he is accused so he may prepare a
defense). The term included but not limited to also makes the paragraph more
factually accurate as demonstrated by the following paragraphs in the indictment.
(4)
In part and among other things
The defendant claims that the phrase in ¶ 4(b) in part and among other
things is somehow unnecessary and prejudicial.
Without this phrase, the indictment would state that the Secretary of Agricultures
only duty owed to the American people would be to administer the Meat Inspection Act. The Secretary of Agriculture has many other
duties. Clearly, this phrase is necessary for
the indictment to be accurate. Calling this
phrase prejudicial is ridiculous.
Similarly, when this same phrase is used in ¶ 10, it is used because failing to do
so would be inaccurate. The government, in
this indictment, did not repeat the entire Meat Inspection Act verbatim because that would
not be the most concise manner in which to notify the defendants of the charges they face. The government included only the relevant portions
of Section 622 of the Act.
Likewise, including this phrase in ¶ 40 is necessary because the New York Times
article in question stated more than just federal investigators are examining
whether Agriculture Secretary Espy illegally accepted free travel, tickets to sporting
events and other gifts from Tyson Foods, Inc. Quoting
the entire article in the indictment verbatim would be silly and would certainly fail to
make the indictment as concise as possible.
(5)
Among other things
The term among other things is also used properly throughout the
indictment. In Whitehorn, the term was
used as a catch-all for all of the defendants misconducts and the court
found this usage improper. 710 F.Supp. at
819. Defendant appears to have improperly
read this case to mean that term among other things is always
prohibited without regard to the meaning and context of its use. This reading misses the
point of the case. Whitehorn only
holds that language in an indictment must serve a purpose and not be prejudicial. Id. Here,
the term is not used in such an improper manner.
In ¶ 1, the term describes the mission of the USDA. The mission of the USDA is vast. Including every facet of it would make the
indictment unnecessarily long and verbose. Using
this phrase to describe defendant Schaffers duties at Tyson Foods in ¶ 2(c) creates
a more streamlined indictment by including only relevant information. Once again, no undue prejudice could possibly
come from the use of this phrase, which simply reflects the fact that Tyson Foods engages
in more endeavors than the sale of various of its products through programs
administered by USDA. Paragraph 15
refers to an interim rule that did more than amend inspection regulations -- without
among other things the statement would be inaccurate. Paragraph 16 also requires among other
things because Tyson Foods advised the USDA of more than simply the cost of new safe
handling regulations. Among other
things is once again necessary to maintain the accuracy of the charging language.
Paragraph 25(e)(ii) uses among other things to explain as concisely as
possible that Messrs. Schaffer and Williams met with the Acting Assistant Secretary and
discussed more than just the Fayetteville visit. Part
(iv) of this same paragraph uses the term among other things in an equally
innocuous manner. The Acting Assistant
Secretary did speak about things other than zero tolerance. It would be inaccurate to state that zero
tolerance amounted to the only topic discussed.
Once again, simply because the defendants would want the indictment charged
differently, does not mean it is flawed as surplusage.
Among other things is used in ¶ 35 because when the USDA Inspector
Generals office opened this investigation they engaged in an investigation of Tyson
Foods and Secretary Espy that focused on matters other than the ones listed in this
paragraph. Without the term among other
things the paragraph becomes inaccurate because it would imply that the Inspector
General only looked at Tyson Foods conduct in relation to improper gifts.
Paragraph 39 uses among other things for essentially the same reason as
in ¶ 35. The Federal Bureau of Investigation
opened an investigation to look into the Secretary of Agriculture accepting football
tickets and related conduct. The goal of any
investigation is to get all of the relevant facts and find the truth behind any
allegations. Among other things
is used properly and certainly in no way prejudices the defendant.
Paragraph 41 properly uses among other things to describe the questions
FBI agents asked defendant Williams during the investigation. The agents did not interview Williams only to
find out about a newspaper article. They
asked him questions about a wider range of matters. Once
again, the term is used correctly by the government.
A full explanation of these events is not directly relevant to the allegations in
the indictment, the use of the challenged language is an appropriate way of providing the
pertinent information while not misstating the facts.
(6)
Among Others
Paragraph 5 properly uses the term among others to show that the Acting
Assistant Secretary of Agriculture for Marketing and Inspection Services supervised more
agencies, or divisions, than just the Food Safety and Inspection Service. In ¶ 25, among others puts the
defendants on notice that other overt acts may be shown at trial.
(7)
And Others
The term and others in ¶ 16 accurately defines who Tyson Foods advised
of the issue with safe handling. Tyson
officials not only lobbied USDA, they raised their concerns elsewhere in the government,
including with the White House and Members of Congress.
And others is the most concise and neutral way to express these facts.
The defendant also takes exception to the use of and others in ¶ 17. The government is at a loss as to what possible
problem the defendant has with this phrase. The
paragraph states that items were given officials of the United States Department of
Agriculture and others. Then in the
chart below the paragraph explicitly lists the recipients.
Quite obviously, one of the recipients -- Secretary Espys girlfriend -- is
not an official at USDA. The indictment could
not be more clear as to who received gifts from Tyson Foods. This phrase does not unduly prejudice the
defendants.
The use of and others in ¶ 25(a)(iv) refers to the fact that Secretary
Espy sat at a table of ten -- i.e., with more than the five individuals listed in
the paragraph. Pictures of the table and
pictures from the dinner provided to defendants as discovery material clearly show that
others attended the dinner. Striking the term
would render the paragraph inaccurate and misleading.
The same phrase, as used in ¶ 25(b)(viii), refers to other individuals on the
Tyson Foods aircraft. In addition to
Secretary Espy and his girlfriend, other individuals rode in the airplane, including a
United States Senator, his wife, and presumably individuals who were responsible for
flying the aircraft! As before, the phrase is
necessary for accuracy and in no way prejudices the defendant.
In ¶ 25(e)(iii)(3), among others refers to the other individuals who
attended the basketball game. This term does
not prejudice the defendant and states accurately the fact that several thousand other
individuals attended the game.
(8)
And their co-conspirators, known and unknown &
And others known and unknown
In Count 1, the government charged the defendants with conspiracy. 18 U.S.C. § 371.
This makes them conspirators. Consequently, the people they conspired with are
co-conspirators. The government intends to
show that one purpose of this conspiracy was to cover up and conceal the conduct of the
defendants through materially false statements. Because
of the surreptitious nature of this conduct, the indictment includes the defendants, the
known co-conspirators (named in the indictments Background Section), and any unknown
co-conspirators. When evidence of a challenged
allegation is admissible and relevant to a charge in the indictment, the wording should
not be stricken even if it may be prejudicial.
Weinberger, 1992 WL 2194877, p. 7.
In ¶¶ 19 and 25, the government uses the term and others known and unknown
for the same reasons discussed above. Because
of the nature of the charges alleged, the term is necessary and is accepted practice,
alleged in almost every conspiracy indictment.
(9) And
Elsewhere
The term and elsewhere is entirely appropriate in this indictment. Although venue for these charges is in Washington
D.C., many events and acts that form this indictment took place outside the District of
Columbia. Consequently, and elsewhere
is the most concise way in which to accurately represent these facts.
In ¶ 2(d)(i), the phrase refers to the fact that defendant Williams represented
Tyson Foods in places other than Washington D.C. For
example, Williams frequently traveled to Arkansas on behalf of Tyson Foods. It is difficult to fathom how the fact that
Williams represented Tyson Foods in places other than Washington could be prejudicial.
Paragraph 19 refers to the fact that several overt acts, as well as several means
and methods, of the conspiracy took place outside of the District of Columbia. The paragraphs that follow ¶ 19 clearly explain
these facts. The term and elsewhere
is the most factually accurate way to describe information relevant to the conspiracy. This is the same reason the phrase is used in ¶
25 when referring to the actual overt acts.
In ¶¶ 27 and 29, and
elsewhere refers to the acts and means re-alleged in ¶ 25.
These alleged scheme to defraud took place in Arkansas and Washington. This is explained in both ¶¶ 27 and 29. Removing these terms renders the paragraphs
inaccurate.
Paragraph 31 also contains the phrase and elsewhere. In this paragraph, the term refers to the fact
that the events that violated the Meat Inspection Act took place both in Washington D.C.,
Arkansas, and Dallas. Paragraph 33 uses
and elsewhere to reflect the fact that several of the gratuities alleged were
given in Dallas, Arkansas and Washington. Both
of these uses are completely appropriate, relevant and non-prejudicial. In both of these paragraphs the various other
locales are listed. The term and
elsewhere is not meant as any sort of catch-all phrase, it is meant to
reflect the actual places where the things of value were given. Listing all of the locations in the beginning of
the paragraph would be redundant as they are also listed in the charts at the end of the
paragraphs.
(10) Including
and Included
According to the dictionary the word include is synonymous with contain
and means to be part of or to be put into a group, class, or total. In this indictment, use of this word and its
variants conform precisely to that definition. Include
has no sinister meaning, it simply provides the reader with necessary background to
understand what comprises the various statements and facts.
The word include does not mean that the items listed are only a
sampling, or subgroup, of the sum total. Insinuating
that the use of these words is somehow inflammatory reads a new meaning into
the word.
The defendant claims that the use of the word included is improper in
¶ 2(b). The word is not used there.[7]
However, even in the paragraphs that actually contain the word in question, the
defendants arguments are equally as baseless.
In ¶ 2(d)(i) included is used to indicate that Tyson Foods had
interests before other government entities besides USDA.
As a large multi-national corporation, Tyson Foods had interests in front of
several other agencies and departments. It
is difficult to see how the fact that Tyson Foods may have had issues with the Treasury
Department or the Department of Defense would prejudice the defendant. Including in this paragraph helps to
establish and explain the relationship that Tyson Foods had with the government. As stated earlier, this relationship is important
to the understanding of the several counts in the indictment and should therefore remain.
In ¶ 2(d)(ii) including is necessary to show how expense
reimbursements were transferred between the defendants.
These reimbursements from Tyson Foods demonstrate how Tyson Foods
relationship with defendants Williams and Schaffer worked.
This relationship is important in understanding how the defendants conduct
fits into the substantive charges in the indictment.
The word is not prejudicial, but in fact necessary to understand the picture that
this indictment paints.
Paragraph 4(b) uses included to show Secretary Espys relation
with Tyson Foods as the enforcer of the inspection laws.
Secretary Espy had many duties as Secretary.
It is necessary to point out this specific duty as it provided the motivation to
the defendants and Tyson Foods in providing the Secretary with gratuities.
In ¶¶ 13, 17 and 23(d), the term included explains the list of things
described in these and the following paragraphs. If
included is prejudicial in this instance, this same logic dictates that the
colon that precedes the listed information is prejudicial as well because a colon
typically means a listed group of items will follow.
Obviously, grammar is not surplusage. The
use of included in ¶¶ 13 and 17 should remain in the indictment.
In ¶ 20, included points out that defendants Schaffer and Williams
worked for or on behalf of Tyson Foods. It is
once again difficult to understand why the defendants listed this instance of included
as surplusage. The objection to ¶ 20 is not
mentioned nor explained in the defendants brief so it is problematic to guess what
their objection may be.[8]
The word should be included.
In ¶ 25(a)(ii) and 25(b)(vii), included is entirely proper because the
list did in fact include the individuals listed in the sentence. The fact that 120 guests
attended this event is irrelevant unless one knows that Secretary Espy was included
in this group. Paragraph 25(c)(vii) uses
include to make clear that the application was part of this facsimile
transmission. Paragraph 25(d)(x) uses included
to point out a specific, relevant fact.
Paragraphs 31 and 33 use the term include to explain how the government
arrived at the amount of the gratuities. Simply
using football trip does not actually explain what the entire gratuity was. This gratuity was comprised of airfare, a
limousine ride, parking, food, beverages, and actual tickets themselves. The same holds true for the Russellville birthday
party. To understand what the gratuity charge
comprises, one necessarily needs to know what the defendants actually gave.
In ¶ 42, including shows the materiality of the false statement. For the sake of one element of this charged count,
it is necessary to show that Williams knew of Secretary Espys travel plans. Using the term including allows the
government to make an important point in one sentence instead of using an additional
sentence.
All told, use of included and including is simply the best
way to state these matters.[9] This is not prejudicial. It is a succinct and efficient.
(11) And
Other Amenities
The phrase and other amenities is not surplusage. The thing of value described in this paragraph is
a complete trip to Russellville. Other
amenities is just as important to the understanding of this gratuity as any of the
other phrases used (live entertainment, recreational activities, etc.). The defendant attempts to categorize other
amenities as the Independent Counsels attempt to create the impression that
other gratuities exist that were not charged. This
is wrong. If one reads paragraph 31 of the
indictment, it is clear that the government has included other amenities as things of
value provided during the Russellville trip. Without
this phrase, the defendant would not be put on notice as to what precisely he was being
charged with.
In summary, defendants are not entitled to the indictment they would have crafted
and may not rewrite properly pleaded allegations returned by the Grand Jury. The challenged terms will be substantiated by the
evidence at trial. Their inclusion cannot be
read to suggest any additional misconduct on the part of the defendants. They should not be stricken. Therefore, the motion
to strike surplusage should be denied. G.
DEFENDANTS JOINT MOTION TO DISMISS COUNT TEN AND PART OF COUNT ONE FOR
FAILURE TO STATE A GRATUITIES OFFENSE INVOLVING INAUGURAL GIFTS GIVEN TO
SECRETARY-DESIGNATE ESPY IN JANUARY 1993 IS FRIVOLOUS
Defendants contend that Count Ten and a portion of Count One should be dismissed on
the grounds that, as defined by 18 U.S.C. § 201(a)(2), Mike Espy, at the time in which he
is to have received the illegal gratuities described in Count Ten (i.e., four seats
to the Presidential Inaugural Dinner on January 18, 1993), had not yet been selected to be
a public official. For the reasons discussed
below, defendants motion should be denied.
1.
At The Time The Gratuities Had Been Provided To Secretary Espy, He Was A Person
Who Had Been Selected To Be A Public Official.
Defendants assert that when President-elect Clinton publicly announced his
selection of Mike Espy as the next Secretary of Agriculture on December 24, 1992, he had
not been sworn into office as President of the United States and therefore could not
nominate, appoint or officially inform Espy of his pending nomination as Secretary of
Agriculture, as defined under 18 U.S.C. § 201(a)(2).
Section 201(a)(2) defines a person selected to be a public official as
one who has been nominated or appointed to be a public official or has been
officially informed that [he] will be so nominated or appointed. Thus in giving the
Presidential Inaugural Dinner tickets to Espy, defendants argue that they could not violate 18 U.S.C. § 201(c)(1)(A) and 18 U.S.C. §
371 (Indictment, Counts Ten and One, respectively). The
officially informed provision of Section 201(a)(2) easily disposes of the
matter. The Government submits that when
President-elect Clinton announced his proposed Cabinet officers, the President-elect
officially informed Mike Espy that he would be nominated as the next Secretary
of Agriculture.
The government readily concedes that under Article II, Section 1, Clause 7 of the
United States Constitution, a person elected to be President of the United States does not
obtain the powers of the office until he has taken the oath of office. However, in their argument, defendants completely
ignore the President-elects official recognized duties separate and
apart from the Office of President, performed in anticipation of formally assuming power. See 18 U.S.C. 871(b). Official means one authorized by
a proper authority. (Websters II New Riverside University Dictionary
816 (3d ed. 1994)). Accordingly, one who does
something officially does so through designation by a proper authority.
2.
The Official Status of a Presidential Transition
In the early 1960's, Congress recognized that the President-elect required
financial resources to fund activities during the transition from one administration to
another. In response to the growing concern
of the successful transition of power, Congress passed the Presidential Transition Act in
1963, and the Presidential Transition Effectiveness Act in 1988. 3 U.S.C. ¶ 102.
In its report to the Senate, the Committee on Government Operations stated: We endorse proposals to institutionalize
the transition from one administration to another when the
party in power changes. . . . . it is a vital necessity that
the machinery of transition be as smooth as possible and that sufficient
resources are at hand to properly orient the new national
leader in whatever manner is required.
The President-elect must make his
plans and select his staff, and we should recognize these as
legitimate functions of Government and as legitimate expenses of
Government. S. Rep. 88-448, 88th Cong., 2nd Sess.
1964, 1964 U.S.C.C.A.N. 2050, 1963 WL 4730. In
the 1988 amendment, Congress elaborated further by stating that the unique
circumstances of a Presidential transition require balancing the ability of a new
President to conduct transition activities as completely and effectively as possible, and
in any manner he desires, with the necessity of maintaining public confidence in the
integrity of the process. H.R. Rep.
100-532, 100th Cong., 2nd Sess. 1988, 1988 U.S.C.C.A.N. 1372. In enactment and amendment of the aforementioned
law, Congress clearly acknowledged the necessity of the President-elect to act in a
legitimate, institutionalized and, thus, official capacity in the establishment of his
Executive Office prior to the inauguration.
Moreover, it has been the standard practice of previous President-elects -- as well
as a long standing implied function of the President-elect in preparing to assume the
nations top position -- to select their Cabinet officers prior to taking the oath of
office. The U.S. Department of Agriculture
Transition Team addressed this point in its 1993 briefing book, noting the standard
process of this and prior Transition Teams with the cooperation of the
Senate, to have as many nominations as possible ready for formal approval on January 20 .
. . . Hearings are expected to be held in all committees between January 6th and 18th; and
the committees will make every effort to complete all the rest of their work prior to
Inauguration Day. (Briefing Book for Nominees for
Under/Assistant Secretaries - USDA, 12/22/92, p.1, attached as Exhibit 1).
Defendants assertion that President-elect Clintons December 24, 1992
announcement of Mike Espy as the next Secretary of Agriculture failed to officially inform
him of his new position does not withstand close scrutiny and, in any event, defies common
sense. In his recognized and official
capacity as President-elect, Mr. Clinton considered and officially selected his candidates
to fill Cabinet positions. On December 24,
1992, Mike Espy became a person selected to be a public official. The motion to dismiss the inaugural gratuities
must fail and accordingly should be denied. H.
COUNTS TWO THROUGH SIX SUFFICIENTLY ALLEGE AN HONEST SERVICES SCHEME TO DEFRAUD
Defendants joint contention that Counts 2-6 must be dismissed for failure to
state an offense under 18 U.S.C. §§ 1341, 1343, and 1346 confuses the requirements for
testing the sufficiency of the allegation of an indictment with the governments
proof obligations at trial. Further,
defendants argument misconstrues the honest services fraud jurisprudence to require
proof at trial of a bribery scheme or actual influence on decision
making by the USDA officials. The challenged counts state the essential elements
of the offenses and provide enough detail to apprise the accused of the particular
offenses with which they are charged so that they may prepare a defense. The charges are sufficient. Furthermore, honest services fraud does not
require the government to prove at trial that the defendants received a quid pro quo. Proof that the defendants intended to influence
USDA officials in the performance of their official duties establishes honest services
fraud. Because Counts 2 through 6
sufficiently charge mailings and communications in furtherance of an honest services
scheme to defraud, defendants motion must be denied.
1.
The Legal Standard For Testing Allegations Of An 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), cert. denied, 454 U.S. 1149 (1982) (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 general rule is that 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.
The elements of a violation of the mail or wire fraud statute are (1) a scheme to
defraud, and (2) use of a wire or the mails to further that scheme. United States v. Lemire, 720 F.2d 1327,
1334-35 (D.C. Cir. 1983), cert. denied, 467 U.S. 1226 (1984) (citing cases). The government need neither prove nor allege that
the scheme was ultimately successful or that the intended victim actually suffered an
injury. United States v. Sun-Diamond
Growers of California, 964 F. Supp. 486, 492 (D.D.C. 1997) (citing United States v.
Pollack, 534 F.2d 964, 971 (D.C. Cir.), cert. denied, 429 U.S. 924 (1976)).
2.
The Language Of The Indictment Is Sufficient
Counts 2 through 6 each appropriately allege (1) a scheme to defraud, and (2) use
of a wire or the mails to further that scheme. The
indictment charges defendants with conspiring to defraud the United States of
America, by interfering with and obstructing the lawful governmental functions of the
United States Department of Agriculture, a department and agency thereof, of and
concerning its right and the right of the citizens of the United States to the honest
services of Secretary Espy performed free from deceit, fraud, dishonesty, conflict of
interest and unlawful compensation.[10] (Indictment ¶¶ 19a, 27, 29). Counts 2 through 6 allege that for the purpose of
executing this scheme, defendants knowingly caused to be delivered by the United States
Postal Service and transmitted by means of wire communication in interstate commerce five
documents. (Indictment ¶¶ 27, 29). Those counts also provide defendants with detail
regarding the documents sent including the date sent or transmitted, a description of the
documents, and the origin and destination of the documents. (Indictment ¶¶ 27-29). Counts 2 through 6 also incorporate by reference
paragraphs 1 through 17 of the Background to All Counts and paragraph 25 which identifies
21 overt acts taken by defendants to provide things of value to USDA officials and to
conceal their actions. Thus, unlike in United
States v. Nance, 533 F.2d 699 (D.C. Cir. 1976), cited by defendants, the indictment
recites all of the essential elements of the crime and further provides an abundance of
detail to apprise the defendants of the precise crime with which they are charged.[11]
Defendants primarily assert that
Counts 2 through 6 fail to state an offense because the honest services scheme does not
allege bribery or actual influence. (Defendants
Memorandum in Support of Motion to Dismiss Mail and Wire Fraud Counts Def.s
Mem. at p.1). Facing this same
argument, Judge Urbina recently held an allegation of a quid pro quo or selling of
office is not necessary for an indictment to support charges for honest services fraud. United
States v. Espy, 1997 WL 795807, p.6 (D.D.C. 1998).
Defendants do not cite a single authority mandating a different holding.
Defendants argument attacks the governments proof. It does not attack the sufficiency of the
challenged counts of the indictment. The
defendants possession of an intent to influence the official acts of the Secretary
of Agriculture and/or of the Acting Assistant Secretary is evidence that supports the
allegation that defendants intended to defraud the United States and its citizens of their
right to honest government services. An
indictment, however, need not provide such evidentiary detail explaining the governments
theory of proof to be presented at trial. See
United States v. Edmond, 924 F.2d 261, 269 (D.C. Cir. 1991), cert. denied, 502
U.S. 838 (1991) (holding that indictment need not specifically state that theory of
defendant's liability for murder was the Pinkerton doctrine). [T]he function of a federal indictment is to
state concisely the essential facts constituting the offense, not how the government plans
to go about proving them. Id; see
also United States v. Sun-Diamond Growers of California, 941 F. Supp. 1262, 1276
(D.D.C. 1996) (denying motion to dismiss mail fraud count for failure to state offense
holding that in [the challenged count] of the indictment, the OIC has sufficiently
identified the elements of the charged offense. The
sufficiency of the evidence is a matter to be left for the trial.) (citing United
States v. Critzer, 951 F.2d 306, 307 (11th Cir. 1992)).
As the challenged counts allege the essential elements of the crime of mail and
wire fraud and provide an abundance of detail, they sufficiently state offenses under 18
U.S.C. §§ 1341, 1343, and 1346. See
Espy, 1997 WL 795807, pp. 5-7. Any claim
to the contrary is premature.
3.
The Government Need Not Prove At Trial That Defendants Engaged In A Bribery
Scheme Or Effected Actual Influence On The Decision Making Of A USDA Official
Defendants argument for dismissal of the mail and wire fraud counts also
reveals a fundamental misunderstanding of the proof requirements of a scheme to
defraud citizens of their right to honest government services. Defendants erroneously contend that honest
services fraud requires the government to prove bribery or actual influence on
decision-making by the [USDA] official[s]. (Defendants
Honest Services Mem. at 1). However, case law
clearly holds that intent to influence official acts, as will be proven at defendants
trial,[12] establishes intent to defraud
the public of their right to honest government services.[13]
A scheme to defraud as used in the mail fraud statute includes a plan
to deprive another of the right to honest services through the use of deceit. United States v. Sawyer, 85 F.3d 713, 732
(1st Cir. 1996). Public officials act as
trustee[s] for the citizens and the State . . . and thus owe[] the normal
fiduciary duties of a trustee, e.g., honesty and loyalty to them. United States v. Silvano, 812 F.2d 754, 759
(1st Cir. 1987) (quoting Mandel, 591 F.2d at 1363.
While not every breach of fiduciary duty or every instance of dishonest or disloyal
conduct by a government official violates the mail fraud statute, an official's breach of
a fiduciary duty is actionable under that statute when it encompasses an intentional
failure to conduct official duties impartially and free from conflicts of interest. See, e.g., United States v.
Holzer, 816 F.2d 304 (7th Cir.), vacated in light of McNally, 484 U.S. 807
(1987)[14] (affirming honest government
services fraud convictions of judge who solicited and accepted loans from
attorneys with matters pending before him and concealed this activity)). Many cases finding an honest services fraud often
involve government officials accepting bribes or voting on matters in which they have a
personal interest. However, these cases
neither establish a bright line test for, nor create an exhaustive list of actions that
constitute the fraudulent deprivation of honest government services -- nor could they. Cf. United States v. Diggs, 613 F.2d 988, 997,
n.48 (D.C. Cir. 1979), cert. denied, 446 U.S. 982 (1980) (The law does not
define fraud; it needs no definition; it is as old as falsehood and as versable [sic] as
human ingenuity.) (quoting Weiss v. United States, 122 F.2d 675 (5th Cir.), cert.
denied, 314 U.S. 687 (1941)).
Where the individual charged of honest services fraud is not a public official
owing a fiduciary duty to the citizenry, the government must prove that the defendant
intended to cause an official to violate their duty to the public. United States v. Sawyer, 85 F.3d 713, 725
(1st Cir. 1996); see also United States v. Blumeyer, 114 F.3d 758 (8th Cir.), cert.
denied, 118 S.Ct. 350 (1997) (affirming private citizens honest government
services fraud convictions for making payments to a public official holding that the
jury reasonably could have concluded that the defendants schemed to deprive Missourians of
[the officials] honest services by appropriating his discretion for the benefit of
[the defendants company].); United States v. Castro, 89 F.3d 1443,
1455-56 (11th Cir. 1996), cert. denied, 117 S.Ct. 965 (1997) (upholding honest
services fraud convictions of defendants who gave kickbacks to judge to receive
appointments as special assistant public defenders); United States v. Lovett, 811
F.2d 979, 984-86 (7th Cir. 1987) (affirming honest government services conviction of
defendant who offered city mayor a 5% interest in a cable company franchise with the
intent to influence the awarding of a city cable contract);
cf. Shushan v. United States, 117 F.2d 110, 115 (5th Cir. 1941), cert.
denied, 313 U.S. 574 (1941) (No trustee has more sacred duties than a public
official and any scheme to obtain an unfair advantage by corrupting such a one must in the
federal law be considered a scheme to defraud.).
Sawyer, cited by
defendants, defeats their argument that bribery or actual influence is required for their
conviction of honest services fraud. That
case involved the prosecution of an insurance company lobbyist under § 1346 for
providing travel, golf fees, theater tickets and dinners to state legislators. 85 F.3d at 720-21.
The government argued that these things of value caused the legislators to violate
two different Massachusetts statutes: one -- a gift statute which civilly (but
not criminally) proscribed a lobbyist from giving gifts to a legislator aggregating more
than $100 per year, and, two -- a gratuity statute which criminally proscribed
anyone from giving to a legislator, or a legislator accepting, anything of substantial
value . . . for or because of an official
act . . . performed or to be performed by that person. Id. at 725-26. Through the violation of the gift and gratuity
statutes, the government contended Sawyer stole the legislators honest services, and
the indictment as structured required the government to prove that Sawyer violated at
least one of the statutes at issue -- either the gift or the gratuity statute. Id. at 725.
The First Circuit concluded that the jury instructions were flawed because they
allowed the jury to find, ipso facto, from a violation of the gift statute that
Sawyer had the intent to defraud required by § 1346.
Id. at 730-31.
The First Circuit reasoned that the gift statute was a prophylactic civil
prohibition that addressed only the appearance of, but not actual corruption,
and that a violation of that civil gift statute did not necessarily entail any improper
motive to influence the official duties of the recipient.
Sawyer, 85 F.3d at 727-28. Therefore,
not every violation of the gift statute would necessarily amount to a deviation from the
officials performance of honest services to the public. Id. at 728.
Thus, if the Sawyer honest services conviction was to rest on his violation
of the gift statute, the First Circuit required the jury to find that Sawyer intended to
influence or otherwise improperly affect the official performance of duties by giving
these gifts, and not merely that he intended to violate the state gift statute. Id. at 728.
Accordingly, allowing the jury to find that Sawyer intended to defraud the
public of its right to honest services based on proof of gift statute violations alone
constituted reversible error. Id. at
729 (emphasis added).
Addressing the gratuities statute, the First Circuit found that:
A gratuity statute violation -- unlike a gift statute violation -- may
itself be sufficient to implicate the duty of honest services in a given case. As with the gift statute, however, not every
violation of the gratuity statute automatically encompasses an intent to induce the public
official to alter or deviate from the performance of honest and impartial services. Id. at
729.
The Sawyer Court observed that the requisite § 1346 intent might be
proven by proof that, as here, a person, with continuing and long-term interests before an
official, engaged in a pattern of repeated, intentional gratuity offenses in order to coax
ongoing favorable official action in derogation of the publics right to impartial
official services. 85 F.3d at 730. The Court concluded:
Here, for example, while Sawyer may not have provided the legislators with direct
kickbacks or commissions arising out of the specific official action, he may have intended
the legislators generally to treat preferentially Hancocks interests, knowing that
the free meals, entertainment, and golf would continue so long as favorable official acts
were, at some point, taken. Id.
The district courts charge, however, misconstrued the gratuities statute and
required the government to prove that Sawyer gave something of substantial value to
a legislator with the intent to influence an official act of that legislator. Sawyer,
85 F.3d at 730. While this
instruction erroneously added an intent-to-influence element to the gratuity
offense, it also had the effect of sufficiently charging the jury as to the requisite mens
rea for honest services fraud if the honest services fraud was based only on the
giving of gratuities. Id. However, because the First Circuit could not
tell whether or not the jury based the honest services fraud upon the civil violations of
the gift statute or on the criminal gratuity statute; and, since the charge relating to
the former was legally insufficient, the Sawyer Court reversed his convictions and
ordered a new trial. Id. at 730-31.[15]
Defendants also attempt to find sanctuary in United States v. Brumley, 116
F.3d 728 (5th Cir.), cert. denied, 118 S.Ct. 625 (1997), United States v.
Defries, 129 F.3d 1293 (D.C. Cir. 1997), United States v. Rabbitt, 583 F.2d
1014 (8th Cir. 1978), cert. denied, 439 U.S. 1116 (1979), and United States v.
McNeive, 536 F.2d 1245 (8th Cir. 1976). However,
none of these cases address honest government services fraud liability of a defendant who
is not a public official. Furthermore, none
of the cases cited by defendants supports their position that bribery or actual influence
is necessary for an honest services fraud conviction.
Brumley merely resolved the scope of a public officials liability for
honest government services fraud. That court
concluded that honest services fraud exists when an official performs some particular
service or services while conscious of the fact that those actions are something less than
in the best interests of the public or are not those that would be rendered by a totally
faithful employee. Brumley, 116 F.3d
at 734. Brumley certainly did not
contradict the position advanced in Sawyer and Blumeyer, that where a
defendant intends to cause a public official to act in such a disinterested or unfaithful
manner, he possesses the intent to deprive the public of its right to the honest services
of that official.
Defendants reliance on Defries is equally misplaced. In Defries, the D.C. Circuit reversed a
private sector honest services conviction of union officials on the basis that the jury
instructions allowed the jury to convict based on any one of seven alleged acts by
defendants, one of which failed to necessarily include any dishonest or deceitful action.
129 F.3d at 1305. This Circuit held that the
soliciting and collecting unsealed ballots and voting them in favor of the
defendants interests, did not require a finding by the jury that the union
officials voted the ballots against or without regard to the voters wishes. Id. Such
activity would be dishonest or deceitful only if union officials failed to vote the
collected ballots according to the voters wishes or if they obtained the ballots
coercively. Id. Clearly, providing things of value to USDA
officials with the intent to influence their official actions (and thus, attempting to buy
the officials positions to the detriment of the public), and concealing these acts
by lying to federal investigators is against the publics desires so as to be dishonest
and deceitful under Defries.
In Rabbit, an elected member of the Missouri State House of Representatives
secretly accepted a ten percent commission on architectural contracts awarded to a firm he
recommended to persons authorized to award government contracts. 583 F.2d at 1025.
The Eighth Circuit reversed the defendant's mail fraud conviction because (1) no
evidence of a tangible loss to the public existed, (2) the court was not satisfied that
his conduct deprived the citizens of their right to honesty and fairness in the conduct of
his official duties because Rabbit did not control the awarding of state contracts to
architects, and (3) the government failed to identify any law or regulation placing an
affirmative duty on Rabbit to disclose his interest in the contracts, and thus, he did not
deprive the citizens of any right to disclosure. Id.
at 1026.
Unlike the defendant in Rabbit, Espy and the Acting Assistant Secretary were
high-ranking government officials possessing great discretionary power with matters
pending before their offices which were of concern to Tyson Foods. Defendants engaged in a
pattern of offering and providing things of value to these officials in direct
contravention of 18 U.S.C. § 201 and 21 U.S.C. § 622 and also caused these
public officials to violate these same criminal statutes as well as civil statute 5 U.S.C.
§ 7353. Both defendants took active efforts
to conceal this activity from the public and from the authorities by lying to
investigators when questioned about such actions. The
indictment here, unlike the Rabbit indictment, specifically identifies applicable
laws, regulations, and standards of conduct which clearly prohibited defendants from
engaging in illegal conduct. (See Ind.
at ¶¶ 10, 11). In the context of this case,
Rabbit lends no support to defendants assertions.
McNeive provides defendants no greater support, as the facts of that case
are drastically inapposite. McNeive
involved a city plumbing inspector with no discretionary power who accepted
unsolicited tips of $5.00 each for rubber stamping plumbing permits. 536 F.2d at 1246-52. The defendant made no efforts to affirmatively
conceal these tips. Id. at 1247. Instead, he voluntarily disclosed them to the FBI
during an unrelated interview. Id. at
1252. Viewing the scheme as a whole, the
court concluded that with these facts the government had failed to prove intent to defraud
and reversed McNeive's conviction. Id.
at 1247, 1251.
Secretary Espy and the Acting Assistant Secretary, unlike the defendant in McNeive,
were high-ranking senior public officials with great discretionary power. Where, as here, an individual with continued
interests before a public official engages in a pattern of providing things of value then
engages in affirmative acts of concealment to prevent discovery of such acts by the public
and the authorities, that individual's actions amount to a scheme to defraud.
Counts 2 through 6 state the essential elements of the offense and provide ample
facts sufficient to apprise the defendants of the crimes charged. Defendants motion to dismiss for failure to
allege an offenses thus should be denied. Defendants
assertions that the counts should be dismissed because they fail to allege bribery or
actual influence, misinterpret the requirements for a sufficient indictment.
Moreover, defendants argument reveals a fundamental misunderstanding as to
the requisite intent that the government must prove at trial. The government need not prove bribery or actual
influence. Instead, proof that the defendants
gave gifts to USDA officials with intent to influence or to otherwise coax
favorable treatment in derogation of the publics right to disinterested decision-making
is sufficient. It is irrelevant that,
so far as appears, [the public officials] never ruled differently in a [matter] because of
[defendants] willingness or unwillingness to [give the officials things of value],
so that [the officials] conduct caused no demonstrable loss . . . to the public at
large. Holzer, 816 F.2d at 308. Whether
Secretary Espy or the Acting Assistant Secretary altered any position on an official
ruling simply is irrelevant. A violation is
complete once a scheme to defraud is properly shown.
Viewed in its entirety, defendants scheme was intended to, and did, deprive
the United States and its citizens of their right to its officials honest services.
As the indictment alleges each of the elements required for a conviction, (1) a scheme to
defraud and (2) the use of the mails and/or the wires to further the scheme, defendants'
motion to dismiss Counts 2 through 6 of the Indictment must be denied.
I.
DEFENDANTS JOINT MOTION TO DISMISS THE CONSPIRACY COUNT IGNORES THE BROAD
OBJECTIVES OF THE CONSPIRACY; COUNT ONE IS CONSISTENT WITH GRUNEWALD AND SHOULD NOT
BE DISTURBED
Defendants also attack Count One of the indictment, charging conspiracy in
violation of 18 U.S.C. § 371, by setting up a straw man and then attempting to knock it
down. They contend that the Indictment
charges only two criminal objectives of the conspiracy: violation of the statutes
prohibiting gratuities (18 U.S.C. § 201 and 21 U.S.C. § 622), and violation of 18 U.S.C.
§ 1001. Then they argue that the indictment
fails as a matter of law to allege a cognizably criminal gratuity, and that acts of
concealment in violation of § 1001 occurring during the governments investigation
of their criminal conduct cannot support a conspiracy charge in light of the Supreme Courts
holding in Grunewald v. United States, 353 U.S. 391 (1957).
Even before addressing defendants conclusion, the premise of their
argument is incorrect. It could not be more
obvious from the face of the indictment that Count 1, charging conspiracy, is predicated
on the violation of at least two federal criminal laws in addition to the gratuity
statutes and § 1001. The indictment quite
clearly charges mail fraud (Count 2) and wire fraud (Counts 3 through 6) as substantive
offenses committed during the course of the conspiracy charged in Count 1. Moreover, the conspiracy count itself expressly
alleges that the defendants conspired to defraud the United States of America, its
citizens and the United States Department of Agriculture, a department and agency thereof,
of their right to the honest services of Secretary Espy performed free from deceit,
dishonesty, conflict of interest and unlawful compensation . . . . (Indictment ¶
19). That is precisely the fraudulent scheme
charged in the mail and wire fraud counts. Thus,
even if defendants were entirely correct that the conspiracy count could not be predicated
upon the giving of gratuities or lying to federal authorities, it would still survive
based on its invocation of the mail and wire fraud statutes.
The fact is, however, that the conspiracy counts reliance upon the gratuity
and false statement statutes is entirely legitimate, as explained below.
1.
Gratuities
Defendants contend that the Indictment fails to charge cognizable illegal
gratuities as a substantive matter, and therefore that the conspiracy count cannot be
predicated upon the giving of gratuities. With
respect to defendants alleged violation of the Meat Inspection Act, the issues
presented here are identical to those implicated in Defendants Motion to Dismiss the
Meat Inspection Act Counts of the Second Superseding Indictment for Failure to State an
Offense. If that motion fails, so must
defendants contention that a conspiracy charge cannot be predicated upon such
violations.
As for the violations of 18 U.S.C. § 201 alleged in the Indictment, we now have
the benefit of the D.C. Circuits decision in United States v. Sun-Diamond Growers
of California, 1998 U.S.App. LEXIS 5277 (No. 97-3072, March 20, 1998), which had not
yet been decided when defendants filed their Joint Motion to Dismiss Conspiracy Count. Application of Sun-Diamond to this case
demonstrates that the Indictment more than sufficiently charges substantive violations of
§ 201, and hence that the conspiracy count may be predicated upon them.
The Sun-Diamond Court held:
To satisfy the criminal intent requirement embodied in the phrase for or
because of any official act, the giver must intend either to reward some past
concrete official act or acts, or to enhance the likelihood of some future act or acts. .
. .
[T]o say that the gratuity provision lacks a quid pro quo requirement is not
to read the official act language out of the statute. It is only to say that,
in contrast to bribery, the gratuity and the official act need not each motivate the
other. But the gratuity statute by its terms does still require at least a unidirectional
relationship--the gift must be for or because of the act.
The relation may be simply one of
reward. As the word 'gratuity' implies, the intent most often associated with the
offense is the intent to 'reward' an official for an act taken in the past or to be taken
in the future. United States v. Sawyer, 85 F.3d 713, 730 (1st Cir. 1996)
(construing virtually identical Massachusetts gratuity statute). Even in such a case, the
giver presumably hopes that his gratuity will affect the recipient's future conduct--and
this was undoubtedly the concern that motivated Congress to bring rewards for past acts
within the coverage of the statute. But, in contrast to bribery, it is enough under the
gratuity statute if the defendant gives an unpromised benefit for a past governmental
favor. And, whatever degree of intent to influence may be necessary for a bribe, a gift
looking to future acts can be an unlawful gratuity where the giver is motivated simply by
the desire to increase the likelihood of one or more specific, favorable acts. In summary,
as we explained in Brewster, under the gratuity section, 'otherwise than as
provided by law ... for or because of any official act' carries the concept of the
official act being done anyway, but the payment
only being made because of a specifically identified act. 506 F.2d at 82 (emphasis
added). . . .
[I]f Douglas furnished Espy with gifts merely to win his generalized sympathy for
Sun-Diamond, those gifts would not be illegal gratuities, unless the jury could find that
Douglas sought this generalized sympathy to influence Espy to perform one or more official
acts sometime in the future. Id. at 9-14. Significantly, while reversing Sun-Diamonds
gratuities conviction because of defective jury instructions, the Court of Appeals
expressly rejected Sun-Diamonds challenge to the sufficiency of the
indictment. Id. at *19.
Here the indictment more than sufficient satisfies the criteria prescribed in Sun-Diamond. It alleges in considerable detail Tyson Foods
interests before the USDA (Indictment ¶¶ 12- 16). The
conspiracy count expressly alleges that the conspiracy was undertaken for the purpose of
committing violations of 18 U.S.C. § 201(c)(1)(A) (Indictment ¶19), thereby invoking the
allegations set forth in the corresponding substantive counts. Finally, the substantive § 201 gratuity counts
(Counts 10 through 13) expressly charge:
33.
On or about the dates set forth below, in the District of Columbia and elsewhere,
the defendants named below, otherwise than as provided by law for the proper discharge of
official duty, knowingly directly and indirectly gave, offered, and promised the things of
value set forth below totaling approximately $11,018, to and for the benefit of the public
official and person selected to be a public official named below, an officer and employee
of the United States and the United States Department of Agriculture, for and because
of official acts performed and to be performed by such public official[.] (Indictment ¶ 33). That language tracks the statute and is perfectly
consistent with the Sun-Diamond holding.[16] Accordingly, the conspiracy count is in no sense
insufficient with respect to the gratuity allegations.
2.
False Statements
Defendants argument that the alleged false statements cannot support the
conspiracy count is predicated entirely upon the doctrine of Grunewald, 353 U.S.
391. The fallacy inherent in their argument
is reflected in a portion of the Grunewald opinion quoted in defendants
motion:
[A] vital distinction must be made between acts of concealment done in furtherance
of the main criminal objectives of the conspiracy, and acts of concealment done
after these central objectives have been attained, for the purpose only of covering up
after the crime. Id. at 405 (emphasis in
original; quoted in Defendants Mem. to Dismiss Count 1 at 10). Thus, if the acts of concealment by the defendants
occurred after the objectives of the conspiracy were attained, then arguably they could
not constitute acts in furtherance of the conspiracy. However, if the acts of concealment occurred before
the conspiracy's criminal objectives [were] fully accomplished, Ingram v.
United States, 360 U.S. 672, 679 n.10 (1959), then Grunewald does not in any
sense prevent the jury from treating this subsidiary objective [i.e.,
concealment] as an element of the conspiracy. Ingram,
360 U.S. at 679 n.10.
The question, then, is whether the principal criminal objectives of the conspiracy
had been fully attained when defendants made the false statements at issue. The answer could not be more clear. The principal criminal objective of the charged
conspiracy was to influence the official acts of Secretary Espy. The defendants made the false statements charged
in the Indictment in March, May and June, 1994. Secretary
Espy did not leave office until December, 1994. Thus
the purpose of the false statements was to avoid detection of defendants gratuities
in order to ensure that such efforts at detection did not frustrate defendants
efforts to influence the Secretarys official acts.
Put another way, the principal objectives of the conspiracy could not have been
obtained so long as Secretary Espy was still in office and his actions remained subject to
influence. Accordingly, since the false
statements were demonstrably in furtherance of the main objectives of the conspiracy, and
those objectives had not yet been fully attained at the time the false statements were
made, the teaching of Grunewald is that the concealment was part and parcel of the
alleged conspiracy.
United States v. Maloney, 71 F.3d 645 (7th Cir. 1995), cert. denied,
117 S.Ct. 295 (1996), is precisely on point. Maloney,
a corrupt Cook County local judge, invoked Grunewald in support of his contention
that his acts of concealment were not part of the main conspiracy of which he
had been convicted. The Seventh Circuit made
short work of this argument:
Maloney contends that the obstruction
acts were post-conspiracy attempts at concealment which could not have extended the
conspiracy for statute of limitations purposes under Grunewald v. United States, 353
U.S. 391, 402, 1 L. Ed. 2d 931, 77 S. Ct. 963 (1953). In Grunewald, three individuals had
fraudulently succeeded in obtaining no prosecution rulings from the Bureau of
Internal Revenue in 1948 and 1949 for their tax evasion cases. Subsequent activities of the conspirators were
directed at preventing detection of the irregularities in the manner in which they had
secured the favorable rulings. Id. at 395. The
Court held that these subsequent activities could not be used to extend the original
conspiracy for statute of limitations purposes because the main objective of the
conspiracy had long been accomplished. Id. at 398. The Court emphasized, however, that a vital
distinction must be made between acts of concealment done in furtherance of the main
criminal objectives of the conspiracy, and acts of concealment done after these central
objectives have been obtained, for the purpose only of covering up after the crime. Id.
at 405; see Ingram v. United States, 360 U.S. 672, 679 n.10, 3 L. Ed. 2d
1503, 79 S. Ct. 1314 (1959). Maloney
suggests that Grunewald controls this case.
Unlike Grunewald,
however, the conspiracy's main criminal objective was never finally attained
in this case. United States v. Lash, 937 F.2d 1077, 1082 (6th Cir.), cert.
denied, 502 U.S. 949 (1991), and cert. denied, 502 U.S. 1061 (1992). * * * In
the instant case, the main criminal objective, to fix cases whenever feasible, was neither
accomplished nor abandoned as long as Judge Maloney remained on the bench, Swano continued
to practice before him, and McGee continued his friendship with him. Concealment,
therefore, was an overt act in furtherance of the conspiracy's main objectives. See United States v. Eisen, 974
F.2d 246, 269 n.8 (2d Cir. 1992) (acts or statements designed to conceal an ongoing
conspiracy are in furtherance of that conspiracy), cert. denied, 113 S. Ct.
1619 (1993). Maloney's statements to
Swano helped to preserve his position on the bench--the essential ingredient in the
conspiracy's ability to fix cases. See
United States v. LeFevour, 798 F.2d 977, 982 (7th Cir. 1986) (the acts of
concealment furthered the objects of the conspiracy--obtaining money--and resulted in
lengthening its duration); United States v. Xheka, 704 F.2d 974, 986 (7th
Cir.), cert. denied, 464 U.S. 993, 78 L. Ed. 2d 682, 104 S. Ct. 486 (1983); United
States v. Howard, 770 F.2d 57, 60-61 (6th Cir. 1985), cert. denied, 475 U.S.
1022, 89 L. Ed. 2d 325, 106 S. Ct. 1213 (1986). Thus,
Grunewald does not exclude the obstruction of justice acts from the RICO conspiracy
for statute of limitations purposes. Id. at 659-600 (emphasis added;
footnotes omitted).
The same precise analysis applies here. The
success of the conspiracy and of the scheme to defraud depended on defendants
substantial efforts to conceal from the Department of Agriculture, law enforcement, and
the public the giving of favors to Secretary Espy. An
essential objective of the conspiracy, as charged in the indictment, was to conceal these
acts so that Tyson Foods would not jeopardize the continued receipt of the
substantial economic benefits of federal meat and poultry inspection rights granted by the
Department of Agriculture. (Indictment
¶21). That objective necessarily outlived
the mere giving of the gratuities alleged, as those acts were only a means toward the
ultimate conspiratorial objective of compromising Secretary Espy. So long as he remained in office, concealment was
necessary and in furtherance of the conspiracys main objective. Accordingly, defendants motion to dismiss
Count 1 must be denied. J.
DISCLOSURE OF GRAND JURY INSTRUCTIONS IS UNWARRANTED BECAUSE DEFENDANTS JOINT
MOTION FAILS TO DEMONSTRATE PARTICULARIZED NEED OR PREJUDICE
Defendants joint motion seeking disclosure of the governments
instructions to the Grand Jury regarding the charges (Counts 10-13[17] and a portion of Count 1)
under the gratuities statute, 18 U.S.C. § 201(c), is based on the faulty premise that a
grand jury in a section 201(c) case be instructed that a nexus must exist between
the alleged gratuities and specific official acts.
(Joint Disclosure Mem. at 11). The
only nexus required, as alleged in the indictment, is proof that the gratuities given were
for or because of official acts.[18] Because the indictment itself supplies the
required nexus as an element of the offense, disclosure of the Grand Jury instructions is
unwarranted.
Applicable Law
Analysis of defendants claim for disclosure must begin with settled law that
there is no obligation of a prosecutor to give the grand jury any legal instructions. United States v. Zangger, 848 F.2d 923, 925
(8th Cir. 1988) (no duty to instruct on applicable law of obscenity). An indictment returned by a legally
constituted and unbiased grand jury . . . , if valid on its face, is enough to call for
trial of the charge on the merits. Costello
v. United States, 350 U.S. 359, 363 (1956). Thus,
where the indictment itself contains a recitation of the elements of the charge so that
the required elements are at least implied, an indictment may not be dismissed absent a
substantial showing that any instructions given were flagrantly misleading. United States v. Larrazolo, 869 F.2d 1354,
1359 (9th Cir. 1989). Indeed, even where a
prosecutor submits erroneous instructions of law to a grand jury, see United
States v. Wright, 667 F.2d 793, 796 (9th Cir. 1982) ([e]rroneous grand jury
instructions do not automatically invalidate an otherwise proper grand jury indictment),
the extreme sanction of dismissal of an indictment is warranted only when the defendant
was prejudiced by the alleged misconduct. Bank
of Nova Scotia v. United States, 487 U.S. 250, 254 (1988). Prejudice in this context means only if
it is established that the violation substantially influenced the grand jurys
decision to indict, or if there is grave doubt that the decision to
indict was free from the substantial influence of such violations. Id. (quoting United States v. Mechanik,
475 U.S. 66, 78 (1986) (OConnor, J., concurring)).
Any other claim -- whether real or surmised -- that falls short of pervasive
prosecutorial misconduct coupled with an actual demonstration of prejudice is insufficient
to overcome the strong presumption in favor of the regularity of grand jury proceedings. United States v. Larrozolo, 869 F.2d at
1359 (requiring showing that conduct of prosecutor was so flagrant that it
deceived grand jury in a significant way infringing on their ability to exercise
independent judgment); see United States v. Overmyer, 899 F.2d 457,
465 (6th Cir.), cert. denied, 498 U.S. 939 (1990) (dismissal unwarranted on grounds
of unclear grand jury instructions because alleged error insufficient to overcome
well-accepted principle that grand jurys indictment is presumptively valid). 1.
Defendants request for disclosure of the grand jury instructions is unsupported
by a showing of prejudice or particularized need
Applying these well-settled principles to the relief requested here, there is no
basis for disclosure of the grand jury instructions.
In their memorandum in support of disclosure, defendants cite inapposite cases[19] that evidence prosecutorial
abuse before a grand jury, assert without support that there is evidence in
this case that the Government misled the Grand Jury regarding the
elements of the offense of gratuities to public officials under 18 U.S.C. § 201(c)(1)(A),
(Joint Disclosure Mem. at 1) and ask this Court to order disclosure of the grand jury
instructions, pursuant to Fed. R. Crim. P. 6(e)(3)(C)(ii), since grounds may exist
for a motion to dismiss the indictment because of matters occurring before the grand jury.
Almost this precise issue was raised and soundly rejected in United States v.
Pike Industries, Inc., 575 F. Supp. 885 (D. Vt. 1983).
In that case, defendants similarly moved pursuant to Fed. R. Crim. P.
6(e)(3)(C)(ii) to inspect the grand jury minutes relating to the prosecutors
instructions . . . regarding the intent elements of the offenses charged. The defendants in the Pike Industries case
claimed that there was a substantial possibility that . . . the prosecutor failed to
instruct correctly the jury on the intent element necessary [to] indict[ ] . . . . As noted in the district courts decision,
the Government in response argued the long standing rule that (1) courts will
not look behind indictments sufficient on their face to inquire into grand jury
proceedings, (2) defendants failed to demonstrate any particularized needfor
disclosure of grand jury material as required by United States v. Proctor & Gamble
Co., 356 U.S. 677 (1958), and (3) even giving erroneous instructions to the grand jury
is not grounds for dismissing an indictment. Recognizing
the substantial discretion entrusted to district courts in determining when grand jury
transcripts should be released, (citing Pittsburgh Plate Glass Co. v. United States,
360 U.S. 395, 399 (1959)), the Pike Industries court held as follows: The particularized need in
this case involves the possibility that the prosecutor gave erroneous instructions to the
grand jury. Defendants argue that the
indictment is nebulous and therefore the prosecutor must not have instructed the grand
jury properly on the element of intent. . . . The
court has already held that the indictment against the defendants is facially valid. Their surmise . . . [by] reference to a
substantial possibility does not meet the requirement of particularized need. Nor has it been shown that an in camera
inspection of the grand jury minutes would serve the interests of justice. The defendants motion to review the grand
jury minutes is denied. 575 F. Supp. at 890-91.
The same result should obtain here. The
D.C. Circuits recent decision in Sun-Diamond provides no support to the
contrary. While overturning the jury
instructions at trial given by Judge Urbina on the gratuity counts because the
instructions allowed the jury to convict if it found that Sun-Diamond gave Secretary Espy
things of value merely in recognition of his official position, regardless of
official acts that might have supplied the motivation, Sun-Diamond, slip op.
at 5, the Court was careful to reject Sun-Diamonds attack on the indictment that the
government was required to allege and prove a nexus between each unauthorized gift
and some specifically identified official act . . . for which the gift was given. Id. at 4, 13. The D.C. Circuit was quite clear that the only
nexus required was proof that the gift given was for or because of official
acts, i.e., with intent to reward past favorable acts or to make future ones
more likely. Id. at 13. The most that is required in order to convict on a
gratuities charge, therefore, is that there be proof at trial that the gift giver
intended to influence Espy to perform one or more official acts sometime in the
future. Id. at 10.
In this case, of course, precisely this allegation is made in Counts 7-9 under the
Meat Inspection Act. In returning the second
superseding indictment, the Grand Jury necessarily found probable cause to believe that
both defendants gave the same[20]
things of value to Secretary Espy with intent to influence him in the
performance of his duties under the Meat Inspection Act. (Indictment ¶ 31 & Counts 7 (Schaffer) and 8
(Williams)). Thus, in light of a finding of
probable cause on Counts 7-9, it is impossible to conceive how even erroneous instructions
to the grand jury of the type that defendants have every reason to believe
(Joint Disclosure Mot. at 2) were given on Counts 10-13 under Section 201(c) would have
substantially influenced the grand jurys decision to indict on those
counts. Bank of Nova Scotia, 487 U.S.
at 254.
In short, the gravaman of defendants motion for disclosure of the grand jury
instructions is to determine whether the grand jurors were instructed that a nexus
between the alleged gratuities and a specific official act was an element they must find
before issuing an indictment. (Joint
Disclosure Mem. at 7, 11). The D.C. Circuits
rejection of the same type of broad attack on indictment in Sun-Diamond
should end the matter. Because defendants
have failed to demonstrate any particularized need or prejudice arising from their
unsupported belief that the grand jury was misled as to the elements of a section 201
offense, their motion must be denied. K.
THE INDEPENDENT COUNSELS JURISDICTION IS SUFFICIENTLY BROAD TO ENCOMPASS THE
ENTIRE INDICTMENT
Predictably, both defendants have moved to dismiss certain counts of the second
superseding indictment on the ground that the Independent Counsel (IC) has
exceeded his prosecutorial jurisdiction. Such
motions are predictable because the Independent Counsels unique status seems to
prove irresistible to criminal defendants searching for some excuse, no matter how
far-fetched, to escape the consequences of their actions.[21]
The law that determines an independent counsels jurisdiction does not
constrain law enforcement in the manner defendants suggest. The jurisdiction allocated to an independent
counsel is not so rigidly compartmentalized as to force him to divide criminal offenses
into small pieces and to prosecute only disjointed fragments of a larger criminal
enterprise. Congress, the Special Division
that defines an independent counsels jurisdiction,[22]
and all of the courts that have interpreted the law in this area have unanimously granted
an independent counsel the appropriate jurisdiction to prosecute fully all crimes related
to the matter for which they were appointed. That
is precisely the circumstance here.
Ultimately, defendants complain that the Justice Department, rather than the
Independent Counsel, should be prosecuting them. Memo.
in Support at pp. 3-4. But, as one Court of
Appeal noted in rebuffing a challenge to an independent counsels jurisdiction,
there is no constitutional right of a criminal defendant to choose his or her
prosecutor and thus there can be no constitutional dimension to the challenge to the
prosecutors jurisdiction when it is conceded, as it is here, that there is some federal
prosecutor who is empowered to bring the charges on which [defendant has] been indicted. United States v. Tucker, 78 F.3d 1313, 1317
(8th Cir. 1996), cert. denied, 117 S.Ct. 76 (1996).
Defendants apparently concede that all of the counts of the second superseding
indictment, save those challenged here, are within the Independent Counsels
jurisdiction. In particular, defendants do
not dispute jurisdiction over Counts Ten through Twelve, charging gratuities including
sports tickets and transportation given to Secretary Espy in January of 1994. Instead, defendants vigorously contest
jurisdiction over Counts Nine, Thirteen, and (in part) One, charging gratuities amounting
to sports tickets and a transportation upgrade given to the Acting Assistant Secretary one
month later. Defendants, in other words,
urge this Court to parse into separate prosecutions offenses that are closely linked in
substance, purpose, and time. This is not a
result mandated or permitted by the law governing independent counsels.
Defendants devote much of their argument to establishing the non-controversial
proposition that they are not covered persons under the Ethics in Government
Act, and that Independent Counsel investigations are triggered by allegations against
covered persons. However, this simple
fact does not mean that the Independent Counsel cannot prosecute them for the offenses
charged. As the law contemplates, the Special
Division, in defining the Independent Counsels jurisdictional mandate, did not
confine him to investigating and prosecuting covered persons like Secretary
Espy. [T]he ultimate scope of
jurisdiction of the OIC [Office of Independent Counsel] -- whom he may investigate and
whom he may prosecute -- as determined by the Special Division, is not necessarily limited
to covered persons . . . . United
States v. Tucker, 78 F.3d at 1322.
Both Congress in creating the general independent counsel scheme and the Special
Division in defining the jurisdiction of this and other independent counsels, recognized
quite clearly that, as a practical matter, the independent counsel could not be narrowly
confined to pursuing a single individual or a narrowly circumscribed set of offenses. Thus, in reviewing the allocation of prosecutorial
jurisdiction between an independent counsel and the Justice Department, the D.C. Circuit
has noted that the precise allocation of responsibility over every facet of the
ensuing investigation cannot be chiseled in stone at the commencement of the special
prosecutors tenure. United
States v. Wilson, 26 F.3d 142, 148 (D.C. Cir. 1994), cert. denied, 514 U.S.
1051 (1995).
The foregoing highlights the central fallacy of defendants motion. Defendants argue that the act limits the
Independent Counsels jurisdiction over defendants, as non-covered
persons, to the subject matter of the Independent Counsels mandate. Memorandum in Support at p.7. However, the jurisdiction is not so limited;
the Special Division is required to assure that the Independent Counsel has adequate
authority to investigate and prosecute fully not only the subject matter of the Attorney
Generals request but also all matters related to that subject matter. 28 U.S.C. § 593(b)(3). This is why the scope of an independent
counsels jurisdiction can be both wide in perimeter and fuzzy at the borders. In re Espy, 80 F.3d 501, 507 (D.C. Cir.,
Division for the Purpose of Appointing Independent Counsels 1996) (quoting Wilson,
26 F.3d at 148).
In establishing the jurisdiction of this Independent Counsel, the Special Division
did precisely what the statute contemplates -- it gave him the broadest possible authority
over all matters related to the core subject matter identified by the Attorney General. Specifically, the law provides: In defining the independent counsels
prosecutorial jurisdiction, the division of the court shall assure that the independent
counsel has adequate authority to fully investigate and prosecute the subject matter with
respect to which the Attorney General has requested the appointment of the independent
counsel, and all matters related to that subject matter.
28 U.S.C. § 593(b)(3).
The Independent Counsels jurisdictional mandate is set forth in the Order
Appointing Independent Counsel, attached to the Motion as Exhibit 1. The mandate begins with a reference to the core
subject matter of gifts to Secretary Espy: [The Independent Counsel is appointed
with] full power, independent authority, and jurisdiction to investigate to the maximum
extent authorized by the Independent Counsel Reauthorization Act of 1994 whether
[Secretary Espy] has committed a violation of any federal criminal law . . .
relating in any way to the acceptance of gifts by him from organization or individuals
with business pending before the Department of Agriculture.]
The appointment order then went on to assure that the Independent Counsel had the
maximum authority to investigate all possible related matters, by expressly giving him the
additional power to: C
(i)
[I]nvestigate other allegations or evidence of violations of any federal
criminal law . . . by any organization or individual developed during
the Independent Counsels investigation . . . and connected with or arising
out of that investigation. C
(ii)
[S]eek indictments and prosecute any organizations or individuals involved in
any of the matters described above, who are reasonably believed to have committed a
violation of any federal criminal law arising out of such matters . . . . C
(iii)
[F]ully investigate and prosecute the subject matter with respect to which the
Attorney General requested the appointment of independent counsel . . . and all
matters and individuals whose acts may be related to that subject
matter. . . . Order Appointing Independent Counsel,
attached to Motion as Exhibit 1 (emphasis
added).
Thus, the Special Division intended to, and in fact did, give the Independent
Counsel the power to investigate and prosecute not just the specific act of giving
gratuities to Secretary Espy, but a broad range of offenses related in any way possible to
this subject matter. Here, the Independent
Counsels mandate expressly provides for the investigation of violations of federal
criminal law by individuals or organizations developed during the Independent Counsels
investigation and connected with or arising out of the investigation and the prosecution
of any organization or individual involved in any of the
matters or arising out of any such matter.
Defendants also argue that the arising out of language of the
Independent Counsels mandate is limited to prospective crimes, and therefore cannot
provide a basis for his jurisdiction in the present case.
Memorandum at pp.11-12. This argument
has been tried before: We . . . think it is
relevant to note that the original jurisdiction of this OIC . . . includes
authority to investigate other allegations or evidence of violation of any federal
criminal law . . . or arising out of that investigation. [Footnote: [Defendants]
argue that the arising out of language concerns the investigation or
prosecution of a crime committed as a direct result of the OICs investigation or
prosecution, that is, an obstruction of justice crime such as perjury. We need not decide whether arising out of
as variously used in the original grant of jurisdiction should be so narrowly interpreted,
as the OIC has jurisdictional authority to investigate and prosecute not only obstruction
of justice crimes related to his grant of authority but also to investigate matters developed
during the Independent Counsels investigation . . . and connected with
or arising out of that investigation.] Tucker,
78 F.3d at 1320, n.6 & n.7 (emphasis added).
Here, of course, the Independent Counsels jurisdictional grant contains
almost precisely the same language -- giving him the power to investigate other
allegations or evidence of violations of any federal criminal law . . . by any
organization or individual developed during the Independent Counsels investigation
. . . and connected with or arising out of that investigation. Consequently, there is no need for the Court to
determine the meaning of the phrase arising out of so long as charged crimes
are connected with the investigation, as they undoubtedly are in this case.
Despite the governing principles discussed above, defendants would have this court
dismiss Counts Nine, Thirteen, and (in part) of One of the superseding indictment on the
specious ground that the Acting Assistant Secretary of Agriculture, rather than the
Secretary himself, received the gratuities. This
argument has, in fact, already been directly rejected by the Special Division of the D.C.
Circuit Court of Appeals that determines the Independent Counsels jurisdiction.
In In re Espy, 80 F.3d 501, the precise question before the Special Division
was whether it could and should refer to this same Independent Counsel a related matter
under 28 U.S.C. § 594(e). The Special
Division made the referral, but only after first deciding that it could make such a
referral on its own if and only if the referred matter was so related to the Independent
Counsels original mandate that he could have pursued it even without the referral. Id. at 507-508. Thus, in making the referral in In re Espy,
the Special Division simultaneously decided that the referred matter was one that already
fit within this Independent Counsels jurisdictional mandate.
The considerations addressed by the Special Division in making that referral
precisely determine the issues before the court on this motion. Specifically, the Special Division found the
following facts to be dispositive: While he concedes that the original
jurisdictional mandate makes no specific mention of the precise factual matters underlying
his referral request, IC Smaltz explains that they share the common foundation of
allegations of improper influence exerted in connection with items pending before the
Department of Agriculture in return for favors or gifts to Secretary Espy or those
close to him, suggesting an ongoing pattern of such dealings, and that certain
close associates of Secretary Espy are deeply involved in all of these matters. . . .
We conclude IC Smaltz has shown that the new matter is demonstrably related to the
factual circumstances that gave rise to the Attorney Generals initial investigation
and request for appointment of an independent counsel.
He has identified evidence allegedly showing a pattern of conduct involving payments
or gifts to Espy and his close associates in return for favorable treatment by the
Department of Agriculture, which was developed during the ICs original investigation
of Secretary Espys acceptance of gifts from parties with business before the
Department of Agriculture and which arose out of that investigation and is connected with
it. 80 F.3d at
508-509 (emphasis added).
Thus, the Special Division has no sympathy for the type of crabbed reasoning that
defendant urges on this court. If the
Independent Counsel discovers that in January of 1994 a defendant gave gratuities to the
Secretary of Agriculture, he does not have to blind himself to the fact, discovered in the
same investigation, that he gave similar gratuities to the Assistant Secretary -- a member
of Secretary Espys subcabinet, who reported directly to him and who actually
regulated Tyson Foods business on the Secretarys behalf -- one month later. The challenged counts are closely related to the
subject matter of the Attorney Generals original request for appointment, and to the
order of the Special Division establishing the Independent Counsels mandate. Accordingly, they cannot be dismissed for a
supposed want of jurisdiction.
The challenged counts of the second superseding indictment are intimately related
to the other allegations of the indictment, and related to the subject matter of the
Independent Counsels jurisdiction. The
law was not designed to allow defendants to pick and choose the forums in which they will
be prosecuted by fragmenting related offenses into multiple prosecutions. Defendants motion to dismiss on
jurisdictional grounds must be denied. V. CONCLUSION
For all of the foregoing reasons, defendants ten pretrial motions to dismiss
and motion to disclose the grand jury instructions should be denied without a hearing. Respectfully submitted, DONALD C. SMALTZ Independent Counsel
Robert W. Ray Chief Associate Independent Counsel Bar No. 401377 Barry Coburn Senior Trial Counsel Bar No. 358020 Adrienne R. Baron Staff Attorney Wil Frentzen Associate Independent Counsel Joseph P. Guichet Associate Independent Counsel Jacob S. Frenkel Associate Independent Counsel Nathan J. Muyskens Associate Independent Counsel Office of Independent Counsel 103 Oronoco Street, Suite 200 Alexandria, VA 22314 (703) 706-0010 Dated: April
1, 1998 [1] The
OIG interview of Williams took place on March 22, 1994.
The interview of Williams conducted by FBI special agents occurred on June 9, 1994. Schaffer was interviewed by the FBI on May 24,
1994. [2] As to Counts Eight and Twelve the indictment
alleges, inter alia: On or about September 14, 1993, at the Department of
Agriculture, Washington, D.C., Jack L. Williams, the defendant, discussed with Secretary
Espy attending a Dallas Cowboys football game.*** On or about January 13, 1994, at approximately 10:19
a.m., Jack L. Williams, the defendant, had a telephone conversation with the Secretarys
girlfriend. Thereafter, Williams caused his
limousine service driver to deliver airline tickets personally to the Secretarys
girlfriend at her place of employment. Indictment,
¶¶25(d)(i) and (iv).
As to Counts Nine and Thirteen, the indictment alleges, inter alia, the
following meetings in Washington, D.C. where Williams offered the gratuity later given to
the Acting Assistant Secretary: In or about December 10, 1993, at the United States
Department of Agriculture, Washington, D.C., Jack L. Williams, the defendant, invited the
then-Deputy Assistant Secretary, Marketing and Inspection Services, USDA, to meet with his
client Tyson Foods in Arkansas and offered to obtain the then-Deputy Assistant Secretary a
ticket to a University of Arkansas Razorbacks basketball game. *** On or about January 12, 1994, at the 116 Club in
Washington, D.C., Archibald R. Schaeffer, III and Jack L. Williams, the defendants, met
the Acting Assistant Secretary for to discuss, among other things, the itinerary for
travel to Springdale, Arkansas to visit with Tyson Foods officials. Id. ¶¶ 25(e)(i) and (ii). [3] The defendants citation to United States v.
White, 887 F.2d 267, 272 (D.C. Cir. 1989) is unavailing. In White, the D.C. Circuit simply held that
in a bribery case, venue does not lie in the district where the public official performs
official acts or where the public official was to perform official acts. That is not the allegation of venue against
Williams. [4] Judge Urbina, in former Secretary of Agriculture Mike
Espys case, recently held that [t]his court has held that [m]otions to
strike surplusage from an indictment are highly disfavored in this Circuit. United States v. Espy, 1997 WL 795807
(D.D.C.) (quoting Watt, 911 F. Supp. at 554, and Jordan, 626 F.2d 928). [5] See 5 U.S.C. §§ 7301 and 7353. [6] Counts 10 - 13 of the Indictment. [7]
Paragraph 2(b) states: John Tyson, named as a co-conspirator but not as a
defendant herein, was Don Tysons son and served as a member of the companys
board of directors and the president of the Beef and Pork Division. [8] The defendants brief only provides argument for
why included and including are surplusage in paragraphs 17,25, 31
and 33. However, earlier in their brief they
list a number of other supposed improper instances where this word occurs. This is only further proof that most of the
defendants surplusage claim is frivolous at best. [9] Using the word contained or saying was
part of would probably serve the same purpose.
However, the government finds these words to be just as neutral as included
yet also less concise. There is no good
reason to make the government find a better synonym for include when there is
no compelling reason not to use include. [10] This Court may take judicial notice that Secretary Espy
administered a budget of $65.5-billion, or 4.3 percent, of the total federal budget, and
was 9th in line for succession to the Presidency of the United States. See United States v. Sun-Diamond Growers of
California, CR 96-0193 (RMU) (D.D.C. 1997) (Transcript of Sentence at 40.). [11] In Nance, the indictment charged the defendants
with making false representations to obtain money but failed to set forth any of the
representations -- it omitted the crux of the defendants alleged criminal conduct.
533 F.2d at 700. The challenged counts in the
present indictment descend[] to particulars, identifying the victim of
defendants fraud, the thing defrauded (Espys honest services), the date of the
mailings/transmissions in furtherance of that scheme to defraud, a description of the
document mailed or transmitted, and the origin and destination of the document
transmitted. Id. at 701. [12]As evidenced by paragraphs 10, 19b, and 31 of the
indictment, the Government will prove at trial, as violations of the Meat Inspection Act,
that defendants acted with intent to influence Secretary Espy and the Acting Assistant
Secretary in the performance of their official duties. [13] The Government need not prove intent to influence in
every honest government services fraud prosecution. But
where, as here, intent to influence a public official is shown, the requisite intent to
defraud is established. [14] Although the Supreme Court vacated and remanded this
opinion in light of its holding in McNally v. United States, 483 U.S. 350,
107 S.Ct. 2875 (1987) that the mail and wire fraud statutes did not encompass an honest
government services scheme to defraud, with Congress' passage the following year of 18
U.S.C. § 1346, pre-McNally jurisprudence regarding honest government services
schemes is once again authoritative. See,
e.g., United States v. Sun-Diamond Growers of California, 1998 WL 121493,
*11 n.12 (Congresss evident intent in enacting [§ 1346] was to revive
pre-McNally caselaw); see also 134 Cong. Rec. S17,360-02 (daily ed. Nov. 10,
1988) (statement of Sen. Biden) (declaring that the intent [of § 1346] is to
reinstate all of the pre-McNally case law pertaining to the mail and wire fraud
statutes without change.) (cited in United States v. Frost, 125 F.3d 346, 364
(6th Cir. 1997), petition for cert. filed (March 14, 1998) (No. 97-8328)). [15] Importantly, in its extended analysis, the Sawyer
court never addressed the issue of the sufficiency of the indictment, and nothing in Sawyer
can support defendants claim that the indictment at bar is insufficient. [16] To the extent the Indictment also alleges that
defendants were seeking access, the jury will be instructed that seeking
access, by itself, is insufficient to establish the existence of an illegal gratuity
pursuant to § 201. [17]Defendants Joint Motion for Disclosure only refers
to Counts 10 and 11, as against defendant Schaffer. Defendant
Williams is charged under Section 201(c) in Counts 12 and 13. Since the motion is framed on behalf of both
defendants, the Government assumes that the motion covers Counts 10-13 and has responded
accordingly. [18]Counts 10-13 charged that the defendants, as set forth
in the respective counts, otherwise than as provided by law for the proper discharge
of official duty, knowingly directly and indirectly gave, offered, and promised . . .
things of value . . . totaling approximately $11,018, to and for the benefit of [a] public
official and person selected to be a public official . . . for and because of official
acts performed and to be performed by such public official. (Indictment ¶ 33) (emphasis added). [19] Not only are these cases inapposite, at least one of
the authorities cited, United States v. Short, 777 F. Supp. 40 (D.D.C. 1991), is no longer good law in light of the Supreme
Courts decisions in United States v. Williams, 112 S.Ct. 1735, 1745 (1992)
(overturning dismissal of indictment notwithstanding failure of government to present
substantial exculpatory evidence in its possession to grand jury) and Bank of Nova Scotia, 487 U.S. at 259-63
(requiring district court to find prejudice from government misconduct before dismissing
indictment). [20] The only difference in the things of value charged
under the Meat Inspection Act is the absence of a parallel count charging defendant
Shaffer with giving Secretary Espy $6,000 worth of Inaugural Dinner tickets. Cf. (Indictment,
Count 10). The Meat Inspection Act, unlike the gratuities statutue, does not apply prior
to the time that Secretary Espy assumed office. [21] Challenges to the jurisdiction of this Independent
Counsel have been repeatedly rebuffed by the courts.
See, e.g., Espy, F. Supp. 1997 WL 795807, *11-*13 (D.D.C. 1997); United
States v. Blackley, 986 F. Supp. 607 (D.D.C. 1997); United States v. Crop Growers
Corp., 954 F. Supp. 335, 341, 342 (D.D.C. 1997); United States v. Espy, 1996 WL
586364, *6 (E.D. La. 1996); United States v. Sun-Diamond Growers of California, 941
F. Supp. 1262, 1274 (D.D.C. 1996). [22] Independent
counsels are appointed by a three judge panel of the D.C. Circuit Court of Appeals,
commonly known as the Special Division for the Purpose of Appointing Independent
Counsels, which also defines their jurisdiction.
28 U.S.C. §§ 49, 593(b).
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