986
F.Supp. 607
United States District Court,
District of
Columbia.
UNITED STATES of
America
v.
Ronald
Henderson BLACKLEY, Defendant.
No. Crim.
A.97-166 (RCL).
Nov. 12, 1997.
MEMORANDUM
OPINION
LAMBERTH, District Judge.
This matter comes before the court on defendant's Motion to Dismiss Indictment of
Ronald Henderson Blackley pursuant to Fed. R. Crim P. 12(b). For the reasons stated in
this Memorandum Opinion, defendant's motion is denied.
I. BACKGROUND
A. The
Chronology Leading Up to the Motion to Dismiss
On August 8, 1994, Attorney General Janet Reno applied for the appointment of an
Independent Counsel under 28
U.S.C. s 592(c)(1) "to investigate whether any violations of federal criminal law
were committed by Secretary of Agriculture Alphonso Michael (Mike) Espy, and to determine
whether prosecution is warranted." On September 9, 1994, the Special Division for the
Purpose of Appointing Independent Counsels of the United States Court of Appeals for the
District of Columbia ("Special Division") appointed Donald C. Smaltz as
Independent Counsel with the power, authority and jurisdiction to investigate:
whether Alphonso Michael (Mike) Espy, Secretary of Agriculture, has committed a
violation of any federal criminal law, other than a Class B or C misdemeanor or
infraction, relating in any way to the acceptance of gifts by him from organizations and
individuals with business pending before the Department of Agriculture.
other allegations or evidence of violation of any federal criminal law, other than a
Class B or C misdemeanor or infraction, by any organization or individual developed during
the Independent Counsel's investigation referred to above and connected with or arising
out of that investigation.
any violation of 28
U.S.C. s 1826, or any obstruction of the due administration of justice, or any
material false testimony or statement in violation of federal criminal law, in connection
with any investigation of the matters described above.
[and] to seek indictments and to 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, including organizations
or individuals who have engaged in an unlawful conspiracy or who have aided and abetted
any federal offense.
Under the authority of 28
U.S.C. s 594, the Special Division also granted the Independent Counsel the
prosecutorial jurisdiction to fully investigate and prosecute "all matters and
individuals whose acts may be related to that subject matter, inclusive of authority to
investigate and prosecute federal crimes (other than those classified as Class B or C
misdemeanors or infractions) that may arise out of the above described matter, including
perjury, obstruction of justice, destruction of justice and intimidation of
witnesses."
On January 25, 1996, the Independent Counsel filed under seal an Application for
Referral of a Related Matter with the Special Division. This application was opposed by
the Attorney General. Pursuant to 28
U.S.C. s 594(e), the Special Division granted the Independent Counsel's application on
April 14, 1996, ordering referral of the related matter, and granting the following
investigative and prosecutorial jurisdiction:
The jurisdiction and authority to investigate and prosecute any violation of any
federal law, other than a Class B or C misdemeanor, by any organization or individual,
related to any application, appeal or request for subsidy made to or considered by the
United States Department of Agriculture, for which Secretary of Agriculture Alphonso
Michael (Mike) Espy and/or his Chief of Staff Ronald Blackley intervened in the
application, approval, or review process.
In support of its grant of referral jurisdiction, the Special Division noted that
Independent Counsel Smaltz had shown that the new matter was "demonstrably related to
the factual circumstances that gave rise to the Attorney General's initial investigation
and request for appointment of an independent counsel." In
re Espy, 80 F.3d 501, 509 (D.C.Cir.1996). Specifically, the Special Division noted
"He [IC Smaltz] 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." Id.
On April 22, 1997, a federal grand jury in the District of Columbia returned a
three-count indictment against defendant Ronald Henderson Blackley, former Chief of Staff
to Secretary of Agriculture Mike Espy. Specifically, it is alleged that Charles Fuller, a
longtime friend and business associate of Mr. Blackley, caused to be made payments in the
amount of $21,025 to Mr. Blackley and his wife Sharon Blackley between the dates of
January 5, 1993 and December 15, 1993. Also, on or about May 22, 1993, Charles
("Buddy") Cochran, the owner and operator of a farming operation known as
"Coco Planting Company" gave defendant Blackley and/or Sharon Blackley a check
for $1,000 payable to Ron Blackley Jr., which was later deposited into the joint checking
account of Ronald and Sharon Blackley. Both Fuller and Cochran sought and received
monetary subsidies from the Department of Agriculture ("USDA") in 1993, the
former receiving $63,000, and the latter $284,000.
In the first count of the indictment, the grand jury charged Blackley with knowingly
and willfully making false, fictitious and fraudulent statements and representations for
his failure to report the receipt of the $22,025 on his Public Financial Disclosure Report
for 1993 ("Form SF 278"), in violation of the Ethics in Government
Act, 18 U.S.C. s 1001. In the second count, it is alleged that Mr. Blackley signed a
sworn declaration as part of the Department of Agriculture's Office of Inspector General's
("USDA-OIG") investigation of him that contained a false statement concerning
his alleged receipt of aforementioned payments, also in violation of 18
U.S.C. s 1001. In the third count, Mr. Blackley is again charged with a violation of 18
U.S.C. s 1001 for a false statement regarding his alleged receipt of the
aforementioned payments in a sworn declaration taken as part of a United States Agency for
International Development Office of Inspector General ("US AID-OIG")
investigation as to whether he should retain his Top Secret security clearance.
B. The Motion to Dismiss
Mr. Blackley asks this court to dismiss the indictment, contending that the
Independent Counsel is without jurisdiction to prosecute the aforementioned charges. He
asserts that his prosecution is not about illegal gifts to Mike Espy, nor about improper
intervention into the application, approval or review of Department of Agriculture
subsidies. Therefore it does not charge misconduct cognizable under "the limited
prosecutorial authority granted to the Independent Counsel." Supplemental Memorandum
in Support of the Motion to Dismiss Based on Lack of Jurisdiction ("Supplemental
Memorandum") at 2. He contends that the charges against him involve nothing more than
the completeness of his 1993 financial disclosure statement, a matter he claims to be
completely outside of the purview of the Special Division's jurisdictional grant, which is
limited to charges concerning intervention in subsidy applications, appeals, and requests
and federal criminal violations related to such interventions.
Defendant offers three specific challenges in support of his motion to dismiss the
indictment. First, he alleges that there is not a sufficient connection or the requisite
degree of relatedness between the offenses charged in the indictment and the Special
Division's grant of jurisdiction. Second, he contends that this prosecution is statutorily
impermissible because it is contrary to established Department of Justice policy
proscribing prosecution of alleged violations of 18
U.S.C. s 1001, "unless the nondisclosure conceals significant underlying
wrongdoing." Defendant claims that under section 594(f)(1) of the Ethics in
Government Act, an Independent Counsel is required to comply with the written and
established policies of the Department of Justice respecting the enforcement of the
criminal laws. This prosecution, Blackley claims, contravenes that DOJ policy and
therefore the indictment must be dismissed as violative of section 594(f)(1). Finally,
defendant's original Motion to Dismiss challenges the constitutionality of the Special
Division's referral order. Defendant essentially argues that a referral of a related
matter under section 594(e) is unconstitutional in cases in which the Attorney General
specifically opposes the Independent Counsel's request. Each of these challenges will be
addressed in turn.
II. ANALYSIS
A. The Argument That The Indictment Itself Fails to Demonstrate a Connection Between
the Offense Charged and the Independent Counsel's Jurisdiction.
Mr. Blackley contends that there is no demonstrable causal or logical connection
between the 18
U.S.C. s 1001 false statement violations alleged in the indictment and either the
scope of the original mandate or the subsequent referred matter. Defendant argues that,
"[i]f the alleged false statements charged in the Indictment fall within this aspect
of the mandate [intervention in subsidy applications, appeals or review], the Indictment
certainly does not allege it" and "if gifts to Secretary Espy are the predicate
for Mr. Blackley's allegedly false statements, there is no indication of it in the
Indictment." Supplemental Memorandum at 5. Defendant essentially argues that the
relationship between the jurisdictional mandate and the charges brought by the Independent
Counsel must be demonstrated in the language of the indictment, with something tantamount
to a "statement of relatedness" establishing the required connection. Restated,
Mr. Blackley contends that the failure to facially demonstrate the logical relationship
between the charges brought and the limited prosecutorial scope of the Special Division's
order is fatal to the indictment.
As a threshold matter, the scope of the phrase "related to" in the context
of the connection that must exist between an indictment and the jurisdictional mandate has
been addressed by this district. In United
States v. Secord, 725 F.Supp. 563 (D.D.C.1989), the Independent Counsel obtained an
indictment against General Richard V. Secord for perjury and obstruction arising out of
Secord's testimony before Congress in connection with the Iran-Contra hearings. As in the
instant case, Secord argued that the prosecution of perjury counts fell outside the
jurisdiction granted to the Independent Counsel. The question before then-Chief Judge
Aubrey E. Robinson, Jr. was whether the alleged perjury was "related to in any
way" to the events specified in the Special Division's Order. Id. at 564. The court
answered the question in the affirmative, stating, "Clearly, the answer is yes. It
cannot be denied that the congressional investigation itself 'arose from' the events
constituting the Iran-Contra initiative." Id. Because General Secord's congressional
testimony was on the topic of Iran-Contra, and because his alleged perjury might have been
motivated by a desire to conceal his role in the Iran-Contra affair, the court found the
requisite degree of relatedness between the charges in the indictment and the subject
matter of the Independent Counsel's jurisdiction to conclude that prosecutorial
jurisdiction was proper. Significantly, the Poindexter court also noted that "[t]o
demonstrate that one occurrence is 'related' to another, [the OIC] need only show that
there is reasonable causal or logical connection between the two, some tenable correlation
between events." Id. at 566.
At least two prosecutions brought by Independent Counsel Smaltz in conjunction with
the Mike Espy investigation have been challenged on jurisdictional grounds, with
defendants claiming in both instances that the charges in the indictment were
insufficiently related to the authority granted the Independent Counsel by the Special
Division. In United
States v. Crop Growers Corp., 954 F.Supp. 335, 341-42 (D.D.C.1997), the court found a
legally sufficient relationship between illegal campaign contributions to Mike Espy's
brother Henry and the Independent Counsel's mandate. Applying the above-cited Secord
standard for "relatedness," ("a reasonable causal and logical
connection") the court determined that "allegations that an organization with
business pending before the Department of Agriculture made an illegal campaign
contribution to Secretary Espy's brother to curry favor with the Secretary falls within
the mandate of that Appointment Order." Id. at 342. The court concluded that a
contribution to Henry Espy's campaign by one who had business before the Department of
Agriculture could potentially influence the Secretary to intervene on behalf of the
gift-giver. Consequently, the charged conduct--the campaign contribution--was causally and
logically connected to the Special Division's jurisdictional grant--improper influence on
the Secretary of Agriculture--and defendant's challenge to the indictment was denied.
Similarly, in United
States v. Sun-Diamond Growers of California, 941 F.Supp. 1262 (D.D.C.1996) defendants
argued that seven counts in their indictments alleging a scheme to make unlawful corporate
contributions to Henry Espy did not relate specifically to the subject of gratuities, and
therefore exceeded the Independent Counsel's jurisdiction. Id. at 1272. The court rejected
this claim, holding that the counts in question were related to the original subject
matter of the investigation, noting that "[t]he factual predicate is intertwined with
the original core subject matter of the Attorney General's original investigation as well
as the subsequent related referral ... " Id. at 1274. Again, the court found the
requisite "causal and logical connection" between individuals or organizations
who helped retire Henry Espy's campaign debt via allegedly illegal contributions and the
potential for improper influence upon Secretary Espy such that the Independent Counsel's
jurisdiction over the challenged counts was properly exercised.
[1] Significantly, in making these determinations of relatedness, neither the Secord
nor Sun-Diamond Growers nor Crop-Growers courts required what defendant appears to be
calling for here--that the text of the indictment provides the demonstrable causal and
logical connection between the charged violations and the subject matter of the
Independent Counsel's investigation. None of the case law even remotely suggests that the
grand jury's failure to facially demonstrate relatedness is fatal to the sufficiency of
the indictment. In fact, at least one of the aforementioned cases implies the opposite.
"The relationship must be "demonstrable," that is, something that is
evident initially and without great steps of logic. The courts are routinely called upon
to draw lines, and this is simply another of those cases ..." Secord,
725 F.Supp. at 567 (emphasis added). In each instance, the courts considered the
Special Division's order, the challenged counts, and reached a conclusion as to whether
the requirement of relatedness was satisfied. This court will now do the same in
determining whether the language of the original order and/or the referred matter supports
the Independent Counsel's prosecution of charges arising exclusively under 18
U.S.C. s 1001.
[2] Though the Blackley prosecution is arguably within the scope of the Special
Division's original jurisdictional grant, the connection is more easily demonstrated by
reference to the referred matter; consequently, this court will limit its consideration to
that order. The April 1996 referral order permits the Independent Counsel to investigate
and prosecute any violation of any federal law "related to any application, appeal,
or request for subsidy ... for which ... Chief of Staff Ronald Blackley intervened in the
application, approval or review process." Each count in the indictment contends that
Ronald Blackley made a false statement by failing to disclose his receipt of payments
totaling $22,025, first on his Form SF-278, then pursuant to the USDA- OIG sworn
declaration, and finally, pursuant to the U.S. AID-OIG sworn declaration. The background
section of the indictment explains that this income was allegedly received from Mr. Fuller
& Mr. Cochran, who both sought and received subsidies from the Department of
Agriculture in 1993, the same year in which the alleged payments were received by
Blackley. Though defendant cannot discern the "reasonable causal or logical
connection" between the alleged false statements and the jurisdictional mandate, this
court can. An endeavor to conceal payments received from a Department of Agriculture
subsidy applicant could be a causal consequence of possible intervention in the
application process on behalf of those from whom he received payment. It is both logical
and reasonable to surmise that if Ronald Blackley improperly intervened in either Fuller
and/or Cochran's subsidy application, approval or review, and received payments in
anticipation of or as a result of that intervention, he would not report such
"income" on financial disclosure forms, or answer truthfully as to whether he
received such payments when interviewed by USDA or U.S. AID investigators.
A finding of relatedness based upon this type of inference is not without precedent in
this district. In finding that General Secord's indictment was within the scope of the
Special Division's jurisdictional mandate in Secord, Judge Robinson concluded that
"[d]efendant's alleged perjury could well be construed as part of a continuing effort
to conceal the extent and detail of the "enterprise," " Secord,
725 F.Supp. at 566 (emphasis added). If one substitutes the words "falsification
of financial statements" for the word "perjury" in the above excerpt, the
similarities between Secord and the instant case become patently apparent. If Mr. Blackley
did, in fact, attempt to intervene in subsidy applications or reviews on behalf of Fuller
or Cochran, the alleged falsifications on his financial disclosure form and on the two
sworn declarations could logically be part of a "continuing enterprise" to
conceal his intervention. That nexus is sufficient to provide the "reasonable causal
or logical connection" and the "tenable correlation between events" that is
required to support the Independent Counsel's prosecution of these charges.
This court is satisfied that the three 18
U.S.C. s 1001 charges against Ronald Blackley are sufficiently related to the Special
Division's jurisdictional grant in the referred matter. Therefore, this court will not
grant defendant's motion to dismiss the indictment on the basis that the Independent
Counsel has acted in excess of its defined jurisdiction.
B. The Argument That The Prosecution of this Case By the Independent Counsel
Circumvents Established Department of Justice Policy.
Under section 594(f)(1) of the Ethics in Government Act, an Independent Counsel:
shall, except to the extent that to do so would be inconsistent with the purposes of
this chapter, comply with the written or other established policies of the Department of
Justice respecting enforcement of the criminal laws. To determine these policies ... the
independent counsel shall, except to the extent that doing so would be inconsistent with
the purposes of this chapter, consult with the Department of Justice.
The rationale underlying the promulgation of this addition to the Independent Counsel
statute was to ensure that an Independent Counsel's prosecutorial jurisdiction is subject
to some safeguards against overreaching and abuse. "The intent of this change is to
create a presumption that the special prosecutor will follow prosecutorial guidelines
unless extenuating circumstances exist." Sen. Rep. No. 97-496, at 16 (1982),
reprinted in 1982 U.S.C.C.A.N. 3537, 3552. At the same time, it also alleviates some of
the concern that the Independent Counsel law may be unconstitutional because it violates
the doctrine of separation of powers. See Morrison
v. Olson, 487 U.S. 654, 696, 108 S.Ct. 2597, 2621-22, 101 L.Ed.2d 569 (1988) (noting
that adherence to Justice Department policies unless not possible to do so does "give
the Attorney General [a] means of supervising and controlling the prosecutorial powers
that may be wielded by an Independent Counsel").
Defendant contends that his indictment cannot be sustained because it is in
contravention of DOJ policy and therefore violates section 594(f)(1). The Department of
Justice Manual directs its prosecutors "not to prosecute an EIGA [Ethics in
GovernmentAct] violation under section 1001 unless the nondisclosure conceals significant
underlying wrongdoing." Department of Justice Manual at 9-85A.304. Mr. Blackley
argues that because it is contrary to DOJ policy to bring an 18
U.S.C. s 1001 indictment for a financial non- disclosure in the amount of $22,000, the
Independent Counsel is statutorily proscribed from doing so. In other words, defendant
contends that section 594(f)(1) gives DOJ prosecutorial policy the force of law when
applied to the Independent Counsel, even though it is conceded that the same policies are
merely discretionary when applied to executive branch prosecutors. See United
States v. Poindexter, 725 F.Supp. 13, 38 (D.D.C.1989) (citing United
States v. Busher, 817 F.2d 1409, 1411-12 (9th Cir.1987) (holding that the decision to
prosecute a violation of the law cannot be deemed flagrant misconduct, and noting that
"The U.S. Attorney's Manual ... is not intended to, does not, and may not be relied
upon to create any rights, substantive or procedural, enforceable at law by any party in
any matter, civil or criminal. Nor are any limitations hereby placed on otherwise lawful
litigative prerogatives of the Department of Justice.")).
[3] A section 594(f) challenge to an Independent Counsel indictment has been raised in
this district at least once before, and rejected. In United
States v. Poindexter, 725 F.Supp. 13, 38 (D.D.C.1989), defendant John M. Poindexter
sought to have charges dismissed because the indictment was inconsistent with the
prosecutorial policies of the Department of Justice. The court found this claim to be
without merit, explaining:
The very nature of the Independent Counsel's responsibilities suggests that it may not
always be possible for him to follow those policies, and it is for that very reason that
the Independent Counsel statute explicitly provides that he is required to follow
Department of Justice policies "only to the extent possible."
Id. (footnotes omitted). Poindexter therefore holds that while there is a general
presumption that an Independent Counsel should follow the policies and procedures of DOJ,
the plain text of section 594(f)(1) indicates that it is not an absolute, lock-step
requirement. In some circumstances, it is expected that the Independent Counsel will
depart from the guidelines and seek indictments that would not normally be brought by a
United States Attorney.
This court agrees with both the Poindexter holding and the logic underlying it as to
whether an Independent Counsel is bound by statute to follow established DOJ policy in all
cases. It is undeniable that Congress's addition of section 594(f) to the Independent
Counsel statute in 1982 created somewhat of a paradox between that provision's purpose and
the rationale underlying the overall Independent Counsel framework. On the one hand,
through section 594(f)(1), Congress is ensuring that there are not two different standards
of justice depending on the prosecutor; that "treatment of officials is equal to that
given to ordinary citizens under similar circumstances." Sen. Rep. No. 97-496, at 16
(1982), reprinted in 1982 U.S.C.C.A.N. 3537, 3552. To prevent against public officials
being subject to potentially capricious prosecutorial conduct, an Independent Counsel
needs to be tethered to some quantifiable standard, and the Department of Justice policy
guidelines provide arguably the most complete, detailed and time-tested standards
available. Furthermore, as explained above, adherence to the executive branch's
established prosecutorial guidelines helps to guard against constitutional
separation-of-powers challenges to the Independent Counsel statute. See Morrison,
487 U.S. at 696, 108 S.Ct. at 2621-22.
On the other hand, if an Independent Counsel is supposed to operate as nothing more
than the identical twin of the Department of Justice, with no permissible variance in
prosecutorial discretion, then the need for the Independent Counsel structure becomes
highly questionable. Underlying the Attorney General's decision to proceed under 28
U.S.C. s 592 and invoke the Independent Counsel statute is a presumption that the
executive branch is an ineffective prosecutor of high ranking federal executive officials
and national campaign committee officers, and where conflicts of interest may affect the
Department of Justice's objective exercise of prosecutorial discretion. See 28
U.S.C. ss 591(b), (c) (describing the persons for whom and situations under which
invocation of the Independent Counsel statute is applicable). For the Independent Counsel
to play a meaningful role, he or she is necessarily expected to act in a manner different
from, and sometimes at odds with, the Department of Justice. As noted in Poindexter,
"[t]he Independent Counsel, as the very name suggests, is to be independent of the
Attorney General." Poindexter,
725 F.Supp. at 38.
[4][5] In recognition of the need to have safeguards against potential abuse while at
the same time recognizing the special role of the Independent Counsel, section 594(f)
includes the crucial qualifier "to the extent possible" in requiring adherence
to DOJ policies. "[T]he Committee does not intend that independent counsels comply
with Department policies which would undermine their independence or hinder their
mission." Sen. Rep. No. 103-101, at 32 (1993), reprinted in 1994 U.S.C.C.A.N. 748,
777. The question ultimately presented by this challenge to the indictment is whether the
charges against Ronald Blackley present a case where adherence to DOJ policies would be
inconsistent with the purposes of the Independent Counsel statute, and therefore
permissible under section 594(f)(1). The court's answer is in the affirmative, as it is
this court's conclusion that these alleged violations of 18
U.S.C. s 1001, which involve either "knowing" or "willful" false
statements by Blackley, involve the type of ethically-based offenses which the section
594(f)(1) "to the extent possible" exception anticipates. Therefore, the
Independent Counsel may prosecute this case, even if said prosecution is contrary to the
general prosecutorial policies of DOJ. [FN1]
FN1. Because
this court resolves defendant's challenge on the grounds that proscribing this prosecution
would be inconsistent with the purposes of the Independent Counsel statute, it will not
address the question as to whether this prosecution is, in fact, contrary to the policies
of the Department of Justice.
The Independent Counsel statute was promulgated in the wake of the Watergate scandal,
at a time when the nation's confidence in public officials was at an historical nadir. The
aspirational goal of the Independent Counsel law was to give the public confidence that
crimes committed by government officials would be fully and fairly investigated and
prosecuted by an entity with some measure of independence from the individuals he or she
must investigate and prosecute. Whenever the Attorney General applies to the Special
Division for the appointment of an Independent Counsel, he or she is necessarily
addressing a situation in which the integrity of public officials has either been called
into question or may soon be called into question. In essence, the Attorney General is
charging the Independent Counsel not only with the responsibility of investigating and
prosecuting government officers, but also, by implication, with maintaining and/or
restoring public trust in government. In this court's view, adherence to an executive
branch policy that directs a prosecutor to not pursue indictments against executive branch
employees for their criminal ethical violations is in direct contravention with the task
with which an Independent Counsel is charged. To statutorily proscribe an Independent
Counsel from seeking indictments under ethically oriented statutes is a restriction at
odds with the "mission" of an Independent Counsel, namely, to ensure that
government officials are being properly investigated and prosecuted for alleged breaches
of the public trust. For this reason, to follow the policy of DOJ would be
"inconsistent with the purposes of this chapter [the Independent Counsel
statute]" and, therefore, departures from the policy are not only permissible, but
expected.
While there is no doubt both a reasonable and logical rationale that supports the
Department of Justice's policy to not pursue an alleged Ethics in Government Act violation
under section 1001 unless that violation "conceals significant underlying
wrongdoing," that rationale cannot be applied to the particular task with which an
Independent Counsel is charged. Potential criminal ethical violations that may be too
small to concern the Department of Justice are nonetheless properly within the purview of
the Independent Counsel because the Independent Counsel is, in a sense, charged with the
responsibility of ensuring that public officials have maintained the highest standards of
ethical conduct. Following an executive branch policy concerning 18
U.S.C. s 1001 could prevent an Independent Counsel from performing the exact task that
the executive branch, the Special Division, and by implication, the public, have asked him
or her to perform.
Because one of the purposes of the Independent Counsel statute is to maintain public
confidence in the conduct of government officials, an Independent Counsel needs to have
significant latitude to investigate and prosecute alleged criminal violations that call
into question ethical conduct. Mr. Blackley has been charged with three violations of 18
U.S.C. s 1001 for allegedly making knowing or willful false statements. As these
charges raise questions concerning Mr. Blackley's ethical conduct, these prosecutions, for
the reasons stated above, are properly pursued by the Independent Counsel. Therefore, this
court holds that, even if bringing these charges against Ronald Henderson Blackley is
inconsistent with written and established DOJ policy (an issue this court declines to
address, see FN 1), the indictment nonetheless does not violate section 594(f) because the
charges fall under the "inconsistent with the purposes of this chapter"
exception to the requirement that the Independent Counsel follow DOJ prosecutorial
policies. This court will therefore not grant defendant's motion to dismiss on the basis
that the prosecution of this case circumvents established DOJ policy and is therefore
prohibited under section 594(f)(1).
C. Did the Special Division have the Power to Refer This Matter to the Independent
Counsel?
[6] Defendant's original Motion to Dismiss the Indictment alleges that the Special
Division exceeded its constitutional powers when it referred a related matter under
section 594(e) over the express objection of the Attorney General. That motion asserts
that the exercise of prosecutorial jurisdiction by the Independent Counsel that is not
pursuant to a specific request by the Attorney General violates Article II, Article III,
and Morrison v. Olson. Notably, defendant's Supplemental Memorandum largely abandons this
challenge to the validity of the indictment. [FN2]
FN2.
Defendant's original counsel, who filed the initial Motion to Dismiss, was disqualified.
See United
States v. Blackley, --- F.Supp. ---- (D.D.C. August 22, 1997). The supplemental
memorandum was filed by new counsel, who entered their appearance on September 22, 1997.
To properly address this argument, this court would have to determine whether the
modification of the jurisdictional mandate should have been done under the referral power
of section 594(e) (which does not require a request by the attorney general) or the
expansion power of s 593(c)(2) (which does), and whether this particular section 594(e)
referral was unconstitutional because it permitted the creation of prosecutorial
jurisdiction over the express objection of the Attorney General, arguably infringing upon
the executive branch's exclusive power to enforce the laws of the United States.
However, this court is not jurisdictionally situated such that it may consider these
claims as these issues were considered, analyzed and definitively answered in In
re Espy, 80 F.3d 501 (D.C.Cir.1996). Congress designated the Special Division a
"division of the United States Court of Appeals for the District of Columbia
Circuit." 28
U.S.C. s 49. For this court to review the constitutionality of the referral
jurisdiction granted In re Espy would require it to sit in an appellate capacity over the
D.C. Circuit, which it cannot and will not do. If the Special Division concluded 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," In
re Espy, 80 F.3d at 509, this court is not empowered to disturb those findings. Nor
may this court substitute its own constitutional analysis of s 594(e) and conclude that
the concurrence of the Attorney General is required before the Special Division can refer
related matters. The Espy court determined that under the Act the court can refer a
related matter to an Independent Counsel under section 594(e) without the concurrence of
the Attorney General. Id. at 504-06. To the extent defendant is challenging the
jurisdiction of the Independent Counsel based upon arguments already asserted by DOJ and
resolved by the Special Division, defendant's motion to dismiss cannot be granted.
A separate order shall issue this day.
ORDER
This matter comes before the court on defendant's Motion to Dismiss Indictment of
Ronald Henderson Blackley pursuant to Fed.
R.Crim. Proc. 12(b). Upon consideration of the motions and oppositions thereto, the
oral arguments of both parties, and for the reasons stated in the accompanying Memorandum
Opinion, it is hereby
ORDERED that defendant's Motion to Dismiss Indictment is DENIED.
SO ORDERED.
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