UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

  

UNITED STATES OF AMERICA

v.

JACK L. WILLIAMS and

ARCHIBALD R. SCHAFFER, III,
Defendants.

 

 

GOVERNMENT’S 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 defendant’s 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 Schaffer’s responsibilities included, among other things, supervision of the company’s 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 Secretary’s 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 Secretary’s 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 Secretary’s girlfriend; and (iv) a telephone communication between defendant Williams and Don Tyson’s personal secretary regarding travel and lodging arrangements for the Secretary and his girlfriend’s 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 Secretary’s 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 Tyson’s 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 Espy’s social/travel plans, including the Secretary’s 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 Secretary’s girlfriend at her place of employment, (ii) on or about January 10, 1994, defendant [Williams] had a telephone conversation with Don Tyson’s 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 Secretary’s 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 Secretary’s girlfriend, (v) on or about January 13, 1994, [defendant] Williams caused his limousine service driver to deliver airline tickets to the Secretary’s girlfriend personally at her place of employment, and (vi) on or about January 15-16, 1994, the Secretary’s 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 defendant’s due process rights by informing him that any false statement would subject him to criminal liability.  Defendant’s motion should be denied for the reasons set forth below.

                1.             Defendant’s 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 (“Def’s. Mem.”) at 1), and that the statement made “was not capable of impairing or impeding the functions of the OIG.” (Def’s. 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 Defendant’s Motion to Dismiss the Superseding Indictment for Failure to State an Offense, Government’s Opposition to Defendant’s Motion for Judgment of Acquittal and Motion for New Trial, and Government’s Opposition to Defendant’s Motion to Dismiss the Superseding Indictment for Failure to State an Offense.  In its December 3, 1996 Order, the Court expressly denied defendant’s 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 Court’s attention to the previously filed pleadings.

 

                2.             Defendant’s 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 Government’s position goes unchanged, the Government again invites the Court’s 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 North’s home in suburban Virginia.  The D.C. Circuit rejected North’s 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 defendant’s gift of airline tickets to the Secretary’s 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 Secretary’s 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 Secretary’s 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 Secretary’s 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 defendant’s assertion that travel from Washington National Airport is not travel in the District of Columbia is not supported by the cases he cites.  Defendant’s 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 Government’s Opposition to Defendant’s 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 Court’s 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 “society’s interests,” and that “[t]hus exposed, the OIC’s 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 society’s 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 Court’s 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 government’s 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 Espy’s girlfriend’s 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 girlfriend’s] 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 Espy’s girlfriend’s 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-Diamond’s broad attack on the indictment”).

                Defendants’ argue that the aforementioned counts must be dismissed because the gratuities at issue were provided to Espy’s 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 court’s 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.”  (Def’s 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 Dempsey’s 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 statute’s 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 statute’s plain language. The Government fully briefed this issue in its Opposition to Defendant’s 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 Urbina’s 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 latter’s 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 Government’s 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 Government’s 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), rev’d 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), aff’d, 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 government’s 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 defendant’s professional activities . . . background information is undoubtedly helpful.”  Id.  (explaining the duties owed to the public by Cabinet officials is a key to a jury’s  understanding of these counts).  Paragraphs 11 and 12 define the relationship created between the defendants and USDA because of defendants Williams’ and Schaffer’s 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 President’s 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 defendant’s 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 defendant’s actions in context and to establish the defendant’s 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), aff’d 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.  (Defendant’s 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 Counsel’s 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 Espy’s 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 defendant’s 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 Urbina’s 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 Espy’s 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 defendant’s 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.  Webster’s 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 defendant’s 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 word’s 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 Agriculture’s 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 defendant’s 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 Schaffer’s 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 General’s 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 Espy’s 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 indictment’s 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 defendant’s 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 Espy’s 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 defendant’s 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 Espy’s 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 Counsel’s 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-elect’s “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.”  (Webster’s 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 nation’s 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 Clinton’s 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 government’s 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 government’s 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 government’s 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 official’s] 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 official’s 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 public’s 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 Hancock’s 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 court’s 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 official’s 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 public’s 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 public’s 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 government’s investigation of their criminal conduct cannot support a conspiracy charge in light of the Supreme Court’s 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 count’s 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. Circuit’s 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-Diamond’s gratuities conviction because of defective jury instructions, the Court of Appeals expressly rejected Sun-Diamond’s 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 Secretary’s 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 conspiracy’s 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 government’s 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 jury’s 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) (O’Connor, 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 jury’s 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 prosecutor’s 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 court’s 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 need”for 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. Circuit’s 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-Diamond’s 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 jury’s 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. Circuit’s 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 COUNSEL’S 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 Counsel’s 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 counsel’s 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 counsel’s 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 counsel’s 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 prosecutor’s 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 Counsel’s 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 Counsel’s 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 prosecutor’s 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 Counsel’s jurisdiction over defendants, as ‘non-covered’ persons, to the subject matter of the Independent Counsel’s 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 General’s 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 counsel’s 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 counsel’s 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 Counsel’s 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 Counsel’s 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 Counsel’s mandate expressly provides for the investigation of violations of federal criminal law by individuals or organizations developed during the Independent Counsel’s 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 Counsel’s 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 OIC’s 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 Independ�ent Counsel’s 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 Counsel’s 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 Counsel’s 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 Counsel’s 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 Counsel’s 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 Counsel’s 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 General’s 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 IC’s original investigation of Secretary Espy’s 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 Espy’s subcabinet, who reported directly to him and who actually regulated Tyson Foods’ business on the Secretary’s behalf -- one month later.  The challenged counts are closely related to the subject matter of the Attorney General’s original request for appointment, and to the order of the Special Division establishing the Independent Counsel’s 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 Counsel’s 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