No. 98 - 374
In The
Supreme Court of the United States
October Term 1997
Sun-Diamond Growers of California,
Cross-Petitioner,
v.
United States of America,
Cross-Respondent.
On Petition for a Writ of Certiorari to the
United States Court of Appeals for the
District of Columbia Circuit
OPPOSITION TO CROSS-PETITION FOR WRIT OF CERTIORARI
DONALD C. SMALTZ
Independent Counsel
(Counsel of Record)
THEODORE S. GREENBERG
ROBERT W. RAY
CHARLES M. KAGAY
STEPHEN R. McALLISTER
GEORGE D. BROWN
JOSEPH P. GUICHET
Office of Independent Counsel
103 Oronoco Street, Suite 200
Alexandria, VA 22314
(703) 706-0010
TABLE OF CONTENTS
Page
TABLE OF CONTENTS i
TABLE OF AUTHORITIES ii
SUMMARY OF THE ARGUMENT 1
REASONS FOR DENYING THE WRIT 1
I. The Imputation Question Does Not Merit
Certiorari Review 1
II. The "Identifiable Harm from Wire Fraud" Issue
Does Not Merit Certiorari Review 5
CONCLUSION 9
TABLE OF AUTHORITIES
Case
Page
New York Cent. & Hudson River R.R. Co. v. United States,
212 U.S. 481, 29 S.Ct. 304, 53 L.Ed. 613 (1909)
3
United States v. Cochran, 109 F.3d 660 (10th Cir.
1997) 6
United States v. Czubinski, 106 F.3d 1069 (1st
Cir. 1997) 6,7
United States v. Frost, 125 F.3d 346 (6th Cir.
1997) 6
United States v. Jain, 93 F.3d 436 (8th Cir.
1996),
cert. denied, 117 S.Ct. 2452 (1997)
6
United States v. Lemire, 720 F.2d 1327 (D.C. Cir. 1983)
6,7
United States v. One Parcel of Land Located at
7326 Highway 45 North, 965 F.2d 311,(7th Cir. 1992)
3
Statutes:
18 U.S.C. § 201(c)(1)(A)
1
18 U.S.C. § 1343
1
18 U.S.C. § 1346
5,8
Miscellaneous:
Restatement (Second) of Agency § 217 D, cmt. d (1958).
3
Restatement (Second) of Agency § 280 (1958)
3
SUMMARY OF THE ARGUMENT
Sun-Diamonds Cross-Petition for Writ of Certiorari presents
no matters meriting review by this court. The issue of how the responsibility and
knowledge of corporate officers should be imputed to a corporation is an esoteric question
of general common law for which Sun-Diamond does not even attempt to identify a circuit
split. The issue of what constitutes identifiable harm in the context of a wire fraud
prosecution for deprivation of honest services likewise presents neither an important
federal question, nor a circuit conflict, since Sun-Diamond concedes that all of the
circuits that have considered the issue have done so correctly, and merely argues that the
D.C. Circuit in the present case misread its own precedent. The Cross-Petition should
therefore be denied.
REASONS FOR DENYING THE WRIT
I. The Imputation Question Does Not Merit Certiorari Review
Sun-Diamond first urges this Court to consider the imputation of
corporate responsibility and knowledge under the wire fraud statute. It identifies nothing
in the decision below meriting certiorari review.
Sun-Diamonds statement of this issue is particularly
puzzling, because it appears to have very little to do with the Court of Appeals
decision. In its statement of Questions Presented, Sun-Diamond asks whether a court
deprives a criminal defendant of due process when it makes a ruling precluding a jury
finding that the victim was actually a perpetrator. But nowhere in its Cross-Petition does
Sun-Diamond identify any ruling of either the District Court or the Court of Appeals that precluded
the jury from finding as it did. Indeed, Sun-Diamond has not attacked the jury
instructions that underlie its conviction, either in the Court of Appeals or here. Its
argument therefore cannot be that the jury was precluded from finding in its favor
on this issue, but rather that the jury should have found differently than it did, a
matter clearly not meriting certiorari review.
Sun-Diamond does not even attempt to suggest that there is a split
of authority among the circuits on this issue. It does not cite a single decision contrary
to the one it is challenging; instead, it simply asserts that "the Court of Appeals
created a distinction no other Circuit has seen fit to adopt." Cross-Pet. at
p. 11. Nor, for that matter, does Sun-Diamond identify any authority supporting its
position. Rather, it reports that it "has been unable to find . . . any
authority describing the purported distinctions between perpetrators and victims in
applying corporate imputation principles." Cross-Pet. at p. 12.
Indeed, Sun-Diamond does not point to any court, federal or state,
that has ever had to address the peculiar fact situation that brought the imputation
question before the Court of Appeals. Far from raising an important federal question,
Sun-Diamond appears to be pursuing a question of general common law that has arisen in a
unique factual setting.
Sun-Diamond nevertheless argues that the Court of Appeals committed
an error of constitutional dimension when it held that there need not be a strict symmetry
between the rule governing imputation of criminal liability to a corporate perpetrator for
the acts of its agent, and the rule governing the imputation to a corporate victim of the
knowledge of its agent. The constitutional argument is a new one, presented for the first
time to this Court. Before the Court of Appeals, "Sun-Diamond [did] not invoke the
Constitution, which in any event would require either an overruling of the Supreme
Courts rejection of a due process attack on corporate liability, New York Cent.
& Hudson River R.R. Co. v. United States, 212 U.S. 481, 29 S.Ct. 304, 53 L.Ed. 613
(1909), or the development of some new theory." Decision, Pet. App. at p. 18.
In pressing its new due process argument before this Court,
Sun-Diamond never identifies the due process principle it thinks was violated. It does not
point to a legal ruling of the district court, or to a jury instruction to which it
objected, that barred it from presenting any legitimate defense at trial. Rather, it
disputes the jurys conclusion that it did, in fact, commit wire fraud to the
detriment of RLSM and Bozell, and excoriates the Court of Appeals for not overturning the
jurys determination of the facts in this case. Having failed to convince the Court
of Appeals to substitute a new finding of facts for the jurys, it implores this
Court to do so.
In reality, as the Court of Appeals expressly held, there was a
more than sufficient factual basis in the record for the jury to conclude that Douglas was
acting to benefit Sun-Diamond i.e., that he was acting within the scope of his
employment and that Sun-Diamond was, therefore, a perpetrator rather than a victim.
While Sun-Diamond asserts that the Court of Appeals was "apparently bound by the
Prosecutors initial classification of Sun-Diamond as a perpetrator," Cross-Pet.
at p. 13 (emphasis omitted), the Court of Appeals actually made a routine ruling that
the evidence was sufficient to sustain the verdict that the jury reached.
Indeed, Sun-Diamond concedes that "[t]he flaw of the Court of
Appeals reasoning lies not in its declaration that the imputation rules are
different for the perpetrator and the victim." Cross-Pet. at p. 15 (emphasis
added). But that is the only issue of imputation that the Court of Appeals addressed. What
Sun-Diamond purports to complain of the "us[e] of that legal fiction for
allocating criminal liability to identify the victim and the perpetrator" (ibid.)
is not a legal issue that the Court of Appeals even considered. There thus is
simply nothing in the appellate decision below for this Court to review.
II. The "Identifiable Harm from Wire Fraud" Issue Does
Not Merit Certiorari Review
Sun-Diamond next asks this Court to look at 18 U.S.C. § 1346,
the "honest services" amendment to the wire and mail fraud statutes.
Specifically, it argues that the Court of Appeals erred in concluding that the Government
established identifiable harm to the fraud victim by offering evidence that the victim
would suffer foreseeable injury from exposure of the fraudulent scheme.
Again, the question Sun-Diamond presents for review has little if
anything to do with the decision of the Court of Appeals. Sun-Diamond ultimately concedes
that the Government need only show that the defendant "reasonably contemplated"
harm to the victim. Cross-Pet. at p. 19. Further, Sun-Diamond admits that the Court
of Appeals was correct to conclude that defendant here could foresee harm to the victim.
Cross-Pet. at p. 22. While Sun-Diamond does not like the jurys conclusion, it
points to no legal error for this Court to review.
Unlike with its corporate imputation argument, Sun-Diamond at least
looks for a circuit split in urging this Court to review this "identifiable harm from
wire fraud" issue. It does not, however, find one. Sun-Diamond identifies several
decisions from various circuits that supposedly conflict with the decision below.
Curiously, the seminal decision of this group, and the one upon which Sun-Diamond most
heavily relies, is United States v. Lemire, 720 F.2d 1327 (D.C. Cir. 1983), a
decision of the D.C. Circuit. All of the other circuits, Sun-Diamond asserts, are aligned
with Lemire, and therefore at odds with the decision below.
Thus, Sun-Diamond does not complain of a circuit split; according
to its argument, all of the circuits that have addressed the issue (including the D.C.
Circuit in Lemire) are completely in accord. Rather, Sun-Diamond argues that the
decision below conflicts with the Circuits own earlier decision in Lemire.
But in the present case, the D.C. Circuit did not deviate from Lemire.
To the contrary, it expressly adhered to Lemire, and cited that earlier decision
repeatedly. See, Decision, Pet. App. at pp. 22-25. Indeed, according to
Sun-Diamond, the key holding of Lemire, which it quotes twice in its
Cross-Petition, is that Congress did not intend to "criminalize [every] intentional
undisclosed breach of duty to an employer." Cross-Pet. at p. 18. The Court of
Appeals below was acutely aware of the policy arguments Sun-Diamond makes here; the court
even quoted Lemire to the effect that "not every breach of a fiduciary duty
works a criminal fraud." Decision, Pet. App. at p. 23 (quoting Lemire,
720 F.2d at 1335). Likewise, the Court of Appeals scrupulously adhered to Lemires
direction that "[t]he crucial determination must be whether the jury could infer that
the defendant might reasonably have contemplated some concrete business harm to his
employer . . . ." Decision, Pet. App. at pp. 24-25 (quoting Lemire,
720 F.2d at 1337 (emphasis in Sun-Diamond decision, not in Lemire
decision)).
Since the other circuits are in accord with Lemire, and
since, according to the decision below, Lemire is still good law in the D.C.
Circuit, even after the decision below, there can be no circuit conflict. Rather,
Sun-Diamond argues that one decision of the D.C. Circuit erroneously interpreted an
earlier decision of the same circuit. This is a matter for rehearing within the circuit,
not for certiorari. (Sun-Diamond unsuccessfully petitioned the Court of Appeals for
rehearing en banc.)
The potential business harm that the jury found and the Court of
Appeals affirmed in the present case was the economic harm that would result to RLSM, a
Washington public relations firm, from exposure of the fraudulent campaign contribution
scheme. Decision, Pet. App. at p. 23. The Court of Appeals identified specific
evidence supporting the conclusion that RLSM was particularly vulnerable to such injury:
As Lake testified, the chief assets of a public relations firm are
its legitimacy and credibility in the eyes of current and potential clients. Both stood to
be undermined by Douglas and Lakes actions. There is no doubt that Douglas and Lake
could have foreseen that their actions would cause substantial economic harm to RLSM once
word of the scheme got out.
Decision, Pet. App. at p. 23.
Lemire, and the other decisions that Sun-Diamond asserts are
contrary to the present one, did not identify any comparable evidence. When, as here, a
firms stock-in-trade is the effective and ethical handling of political matters, and
its executives are induced to violate the election laws, it is certainly not irrational
for a jury to find that the risk of injury from exposure deprives the firm of the honest
services of its employees, regardless of what the outer parameters of that doctrine might
be.
These facts distinguish the present case from, for example,
Sun-Diamonds other principal authority, Czubinski, supra, 106 F.3d
1069. Defendant there, an Internal Revenue Service employee, had browsed confidential
taxpayer files, but had done nothing with the information he observed. The Court of
Appeals overturned his conviction for wire fraud because neither actual nor potential harm
to the public or his employer was shown:
The conclusive consideration is that the government simply did not
prove that Czubinski deprived, or intended to deprive, the public or his employer of their
right to his honest services. Although he clearly committed wrongdoing in searching
confidential information, there is no suggestion that he failed to carry out his official
tasks adequately, or intended to do so.
Id. at 1077.
Sun-Diamonds Cross-Petition thus illustrates that no
substantial disagreements regarding the interpretation of § 1346
have developed among the Courts of Appeals since the statute was enacted a decade ago. The
development of the law on the subject to date simply gives no occasion for this Court to
intervene.
Sun-Diamond also does not argue that the D.C. Circuit wrongly
decided any important issue of federal law. Instead, Sun-Diamond complains that "the
Court of Appeals assumed, without directly addressing the question, that the
reasonable foreseeability of possible harm resulting from an eventual discovery of
the alleged fraudulent conduct is sufficient to convict a defendant of honest
services fraud." Cross-Pet. at p. 22 (emphasis added in part). Sun-Diamond
would thus again have this Court address a question that, it concedes, the Court of Appeal
did not consider.
Rather than arguing that the Court of Appeals wrongly decided this
legal issue, Sun-Diamond merely asserts that the Court of Appeals proceeded from an
inappropriate, although accurate, factual assumption. Specifically, while conceding the
court was correct when it concluded that "[t]here is no doubt that Douglas and Lake
could have foreseen that their actions would cause substantial economic harm to RLSM once
word of the scheme got out," Decision, Pet. App. at pp. 23-24, Sun-Diamond says
that the court should have looked for a different harm, because injury to reputation is
just too commonplace.
CONCLUSION
Sun-Diamonds Cross-Petition quite effectively demonstrates
why certiorari review is unwarranted here. There are no circuit conflicts to resolve, and
no important questions of federal law that need answering. Instead, Sun-Diamond asks this
Court to wade into esoteric questions of general common law and to weigh in on the
interpretation of a federal statute for which the Courts of Appeals have been developing,
without difficulty, a consistent body of law. Neither is a valid
reason for granting a writ of certiorari.
Respectfully submitted,
DONALD C. SMALTZ
Independent Counsel
(Counsel of Record)
THEODORE S. GREENBERG
ROBERT W. RAY
CHARLES M. KAGAY
STEPHEN R. McALLISTER
GEORGE D. BROWN
JOSEPH P. GUICHET
Office of Independent Counsel
103 Oronoco Street, Suite 200
Alexandria, VA 22314
(703) 706-0010
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