A statement of Circuit Judge Wald concurring in the denial of rehearing in banc is attached.

Circuit Judges Sentelle and Garland did not participate in this matter.

Wald, Circuit Judge, concurring in the denial of rehearing en banc:

I find the interpretation of 18 U.S.C. § 201(c)(1)(A) (1994) so as not to cover any gifts or gratuities made by a regulated company to high officials of the regulating agency troubling. Given the choice, I would have construed the statutory prohibition as the Fifth Circuit has done. See United States v. Bustamante, 45 F.3d 933, 940 (5th Cir. 1995); United States v. Evans, 572 F.2d 455, 480 (5th Cir. 1978). However, I have concluded that calling for a vote on the en banc petition would be futile in this case. The current circuit split calls for Supreme Court attention. The ephemeral distinction between bestowing gifts and gratuities on a high government official who has regulatory jurisdiction over the giver solely because of that official’s "position," rather than in the hopes of obtaining a favorable attitude in any future regulatory act, may commend itself to lawyers and judges, but I suspect it would not pass the "snicker test" with laymen. I read the panel decision as requiring only that the gifts be tied to some future acts by the official, even if those acts are neither specified nor even known at the time of the gift; this case does not hold that the prosecutor must establish that particular gratuities were given to influence particular official acts. Nonetheless, I admit that the main distinction the panel draws between gifts motivated by an official’s "position" and gifts motivated by an official’s "acts" eludes me altogether. I suppose it is conceivable that someone might give gifts to a high official simply to create the impression that he is a "big shot" or "insider," without regard to how the official wields his power. But this hardly seems likely in the case of a regulated entity. Much more likely is the assumption that inherent in an official’s "position" is his capacity to perform regulatory acts which will affect the gift-giver.

Donald C. Smaltz, Theodore S. Greenberg, Kathleen M. Nicolaides, Barry Coburn, Office of Independent Counsel, Alexandria, VA, for Plaintiff.

Richard A. Hibey, Eric W. Bloom, Winston & Strawn, Washington, DC, for Defendant.

Whoever . . . gives, offers, or promises anything of value to any public official, former public official, or person selected to be a public official, for or because of any official act performed or to be performed by such public official, former public official, or person selected to be a public official . . . shall be fined under this title or imprisoned not more than two years, or both.

The issue before the court is whether, with respect to appointed officials, the gratuity statute requires the indictment to allege a nexus between the provision of things of value and a specific official act performed or committed to be performed by the appointed official. This District Court and the various federal courts of appeal that have addressed this precise issue have concluded that the gratuity statute does not require such nexus to be alleged by an indictment. Rather, it is sufficient for the indictment to allege that the provider of the gratuity has matters within the purview of the official receiving the gratuity, and that the gratuity be provided "simply because of . . . [the] official[‘s] position, in appreciation of th[e] relationship, or in anticipation of its continuation." United States v. Secord, 726 F.Supp. 845, 847 (D.D.C. 1989) (emphasis in the original). "The Government need not prove that the gratuity was given in exchange for any specific official act; there need be no ‘quid pro quo . . . ’" Id. "[T]he Government must [only] show that Defendant acted simply because of [the individual’s] official position . . . " Id.

Sun-Diamond’s reliance on United States v. Brewster, 506 F.2d 62 (D.C. Cir.1974), is unavailing. In Brewster, a former United States Senator was charged with bribery and with accepting illegal gratuities. He was acquitted of the bribery charges. He was, however, convicted of accepting illegal gratuities in the form of campaign contributions that he received from a mail-order company that had an interest in defeating enactment of pending legislation to increase postal rates. Id. at 67. The Senator appealed his convictions and the U.S. Court of Appeals for the District of Columbia Circuit reversed on the basis that the jury instructions did not distinguish "with indisputable clarity" between the elements of bribery and gratuity. Id.

The Brewster court, in distinguishing between the elements constituting the crimes of accepting a bribe and accepting an illegal gratuity, explicitly stated: "The bribery section makes necessary an explicit quid pro quo which need not exist if only an illegal gratuity is involved; the briber is the mover or producer of the official act, but the official act for which the gratuity is given might have been done without the gratuity[.]" Id. at 72 (emphasis added). This statement weakens Sun-Diamond’s argument that this Circuit requires the indictment to allege that a nexus between the gratuity and a specific official act exists. Under the bribery statute, the focus is on the briber who instigates an official act. However, as Brewster makes clear, under the gratuity statute, the emphasis is not on the act, which the official might have done with or without the provision of an improper gratuity. Rather, the definition of "official act" denotes that the official need not have undertaken or committed himself to undertake a specific act. An official act is one which involves "any decision or action on any question, matter, cause, suit, proceeding, or controversy, which may at the time be pending[.]" 18 U.S.C. § 201(a)(3) (emphasis supplied). Presently, the indictment alleges that there were two matters pending before Secretary Espy in which Sun-Diamond had a significant interest. There is no indication that the gratuity statute or the definition of the term "official act" require the indictment to allege that Sun-Diamond intended to reward Secretary Espy for an act that he had done or committed himself to do.

In Brewster, the court’s concern centered on an elected official’s potential criminal liability under the gratuity statute. In the context of a politician receiving an illegal gratuity the court stated,

[n]o politician who knows the identity and business of his campaign contributors is ever completely devoid of knowledge as to the inspiration behind the donation. There must be more specific knowledge of a definite official act for which the contributor intends to compensate before an official’s action crosses the line between guilt and innocence.

Id. at 81. The difficult question in Brewster therefore involved the ability of the jury to distinguish between illegal gratuities and legal campaign contributions. The court found that the trial judge had not made the distinction intelligible to the jury and, as a consequence, implicitly required a heightened nexus standard between the illegal gratuity and the official act. The court required such a standard because of the Senator’s status as an elected, rather than an appointed official. As the court recognized, "[e]very campaign contribution is given to an elected public official probably because the giver supports the acts done or to be done by the elected official." Id. at 72 n.26. In the case of elected officials, a nexus was required, otherwise, ". . . there is no distinction in the case of an elected public official between an illegal gratuity and a perfectly legitimate, honest campaign contribution." Id.

This concern is, however, inapplicable with respect to appointed officials. As the court subsequently explained, "the requisite [criminal] intent must be more clearly shown when the case involves a campaign contribution to ‘an elected public official’ than ‘when the recipient is an . . . appointed official.’" United States v. Campbell, 684 F.2d 141, 150 n.16 (D.C. Cir. 1982) (quoting Brewster, 506 F.2d at 73 n.26). Consequently, in cases involving appointed officials, such as the present matter, it is sufficient for the indictment to allege that Secretary Espy received things of value because of his status as Secretary of the Department of Agriculture.

Courts of appeal from other jurisdictions have similarly given Section 201(c) a broad interpretation. The Sixth Circuit has held that the "purpose of the [gratuity statute] is to reach all situations in which a government agent’s judgment concerning his official duties may be clouded by the receipt of an item of value given to him by reason of his position." United States v. Gorman, 807 F.2d 1299, 1304 (6th Cir.1986), cert. denied, 484 U.S. 815, 108 S.Ct. 68, 98 L.Ed.2d 32 (1987). In United States v. Evans, 572 F.2d 455 (5th Cir.), cert. denied, 439 U.S. 870, 99 S.Ct. 200, 58 L.Ed.2d 182 (1978), the Fifth Circuit stated:

[U]nder the unlawful gratuity subsection all that need be proven is that the official accepted, because of his position, a thing of value ‘otherwise than as provided by law for the proper discharge of official duty.’. . . Thus, [the gratuity statute] makes it criminal for a public official to accept a thing of value to which he is not lawfully entitled, regardless of the intent of the donor or donee.

Id. at 480-481 (internal citations omitted). Importantly, our court of appeals has quoted with approval Evans, upon which the court in Secord relied. "‘The gravamen of [the offense of taking an illegal gratuity] is not an intent to be corrupted or influenced, but simply the acceptance of an unauthorized compensation.’" United States v. Baird, 29 F.3d 647, 652 (D.C. Cir. 1994) (quoting Evans, 572 F.2d at 481). The court also cited with approval United States v. Standefer, 610 F.2d 1076, 1079 (3d. Cir.) (en banc), aff’d on other grounds, 447 U.S. 10, 100 S.Ct. 1999, 64 L.Ed.2d 689 (1980), which concluded that all that the jury needs to find under the gratuity statute is that the defendant received a gratuity because of his official position.

To find a public official guilty of accepting an illegal gratuity . . . no proof of a quid pro quo is required; it is sufficient for the government to show that the defendant was given the gratuity simply because he held public office . . . In addition, the jury need not find that the official accepted the gratuity with the intent to be influenced. The jury must only conclude that the evidence establishes beyond a reasonable doubt that the official accepted unauthorized compensation.

Id. at 940 (internal citations omitted). Thus, the government need not prove that the gratuity was given in exchange for a specific official act. Bustamante, 45 F.3d at 941. Consequently, the indictment need not allege that Secretary Espy took or committed to take any action beneficial to Sun-Diamond with respect to the MPP and/or methyl bromide because, "[e]ven if corruption is not intended by the donor or the donee, there is still a tendency in such a situation to provide conscious or unconscious preferential treatment of the donor by the donee . . . " Evans, 572 F.2d at 480. The court therefore denies Sun-Diamond’s motion to dismiss Count I of the indictment.

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 organizations or individuals with business pending before the Department of Agriculture.

In re Alphonso Michael (Mike) Espy, Div. 94-2, Order at 1-2 (D.C. Cir. Sp. Div. Sept. 9, 1994).

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.

Id. at 2. The Independent Counsel was also given the authority

to seek indictments and prosecute any organization or individuals involved in any of the matters [outlined in the order], who are reasonably believed to have committed a violation of any federal law arising of such matters, including organizations or individuals who have engaged in an unlawful conspiracy or who have aided or abetted any federal offense.

Id. Finally, the Independent Counsel was to

. . . fully 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 . . .

Id. at 3.

On September 14, 1994, after the appointment of the Independent Counsel, the Attorney General referred to him a related matter under 28 U.S.C. § 594(e). The referred matter was the allegation that "Secretary Espy hosted a fundraising dinner, attended by agricultural lobbyists, the purpose of which was to retire the campaign debt of his brother." Notice of Prosecutorial Jurisdiction, at 2.

The issue before the court is whether the allegations set forth in counts III through IX are related to the subject matter originally identified by the Attorney General in its application for the appointment of an independent counsel or in the subsequent referral. Preliminarily, the court notes that the OIC is not limited in its investigation to those persons that are explicitly covered by the Act. Tucker, 78 F.3d at 1322. The important issue is whether the persons or organizations and the matters being pursued by the OIC are related to the original subject matter of the OIC’s investigation. "To demonstrate that one occurrence is ‘related’ to another, [the OIC] need only show that there is a reasonable causal or logical connection between the two, some tenable correlation between events." Secord, 725 F.Supp. at 566.

The court concludes that the Independent Counsel has not exceeded his jurisdictional mandate because the counts in question are related to the original subject matter of the investigation. In essence, counts III through IX charge that Sun-Diamond sought to gain improper influence with Secretary Espy by providing money to help retire Henry Espy’s campaign debt. This factual predicate is intertwined with the original core subject matter of the Attorney General’s investigation, as well as the subsequent related referral dealing with the allegations that Secretary Espy hosted a fundraising dinner to help retire his brother’s campaign debt. The Attorney General’s original investigation and request for appointment sought to determine whether certain individuals or organizations with business matters pending before the Agriculture Department improperly influenced Secretary Espy. "Obviously, the concern motivating such an investigation is that a cabinet Secretary may have been influenced improperly to favor or intervene in the gift-givers’ causes pending before his or her Department." In re Espy, 80 F.3d 501, 508 (D.C. Cir.1996). Similarly, the allegations of counts III through IX present the alleged scenario that Secretary Espy was improperly influenced because of his status by individuals or organizations with matters before the Department of Agriculture. The court’s conclusion is supported by In re Espy and United States v. Tucker, 78 F.3d 1313 (8th Cir.1996).

In re Espy, the independent counsel, Donald C. Smaltz, sought a referral of a related matter under section 594(e) of the Ethics in Government Act. He sought a referral over alleged "violations of federal criminal law by associates of Secretary Espy in matters related to the original grant of jurisdiction wherein the persons involved, patterns of conduct, witnesses, underlying facts, and applicable law overlap with" his original investigation. Id. at 503-504. The court granted the application for referral, noting that the independent counsel had

identified evidence allegedly showing a pattern of conduct involving payment or gifts to Espy and his close associates in return for favorable treatment by the Department of Agriculture, which was developed during the [Independent Counsel’s] original investigation of Secretary Espy’s acceptance of gifts from parties with business pending before the Department of Agriculture[.]

Id. at 509. Similarly, counts III through IX allege that Sun-Diamond engaged in a pattern of unlawful conduct that sought to benefit one of Secretary Espy’s closest associates, his brother. In addition, the OIC has presented evidence that Secretary Espy was actively involved in soliciting contributions to retire his brother’s campaign debt.

Defendant Sun-Diamond, acting through its Senior Corporate Officer [Richard Douglas], for the purpose of executing the aforesaid scheme and artifice to defraud, and attempting to do so, knowingly and willfully transmitted and caused to be transmitted in interstate commerce, by means of a wire communication, that is: a telephone call between [Mr. Douglas] and James H. Lake’s office. . . in the District of Columbia, writings, signs, signals, pictures and sounds, that is among other things, a message that [Mr. Douglas] needed to speak with James H. Lake.

The court must determine the sufficiency of a criminal indictment by examining the indictment on its face. United States v. Critzer, 951 F.2d 306, 307 (11th Cir.1992). "The indictment is sufficient if it charges in the language of the [applicable] statute." Id. The indictment must, however, set forth the essential elements of the alleged crime. United States v. Cole, 755 F.2d 748, 759 (11th Cir.1985). Presently, wire fraud requires proof of a scheme to defraud and the use of an interstate wire communication to further this scheme. United States v. Maxwell, 920 F.2d 1028, 1035 (D.C. Cir.1990).

APPENDIX D

UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA

United States of America

vs.

Sun-Diamond Growers of California, Defendant

Docket No. CR 96-0193 RMUWashington, D.C.Wednesday, September 18, 1996 9:21 a.m.

Volume 8Transcript of TrialBefore the Honorable Ricardo M. UrbinaUnited States District Judge, and a jury

THE COURT: Ladies and Gentlemen, the time has now come when all of the evidence in the case is in and you will soon be hearing the closing arguments of counsel. It is now my responsibility to instruct you on the law that should control your deliberations in this case.

Let me begin by defining the functions of the various participants in this trial, but let me mention first, that you as jurors are the judges of the facts in this case, but in determining in what actually happened, that is, in reaching your decision as to the facts, it is your sworn duty to follow all of the instructions of law as I explain them to you.

You have no right to disregard or give special attention to any one instruction or to question the wisdom or the correctness of any rule I may state to you. You must not substitute or follow your own notions or opinions as to what the law is or ought to be. It is your duty to apply the law as I explain it to you regardless of the consequences.

Now, it is also your duty to base your verdicts solely upon the evidence without prejudice, without bias and without sympathy. That was the promise that you made and the oath that you took before being accepted by the parties as jurors and they have the right to expect nothing less.

Thus, under your oath as jurors, you are not to be swayed by prejudice or bias or sympathy. You are to be guided solely by the evidence in this case. It is for you alone to decide whether the government has proved that the defendant is guilty of the crimes charged solely on the basis of the evidence and subject to the law as I charge you now. It must be clear to you that once you let prejudice, bias or sympathy interfere with your thinking, there is a risk that you will not arrive at a true and just verdict.

The parties in an action such as this are the government and the defendant. Every defendant in a criminal case is presumed to be innocent. This presumption of innocence remains with the defendant throughout the trial unless and until the defendant is proven guilty beyond a reasonable doubt.

The burden is on the government to prove the defendant guilty beyond a reasonable doubt. The burden of proof never shifts throughout the trial. This burden of proof requires that you look at the evidence carefully and thoughtfully and deliberately and the law does not require a defendant to prove his innocence or to produce any evidence in the case.

If you find that the government has proved beyond a reasonable doubt every element of an offense with which the defendant is charged, it is your duty to find the defendant guilty. On the other hand, if you find the government has failed to prove any element of an offense with which a defendant is charged, beyond a reasonable doubt, you must find the defendant not guilty.

Reasonable doubt as the name implies is a doubt based on reason. A doubt for which you can give a reason. It is such a doubt as would cause a juror after careful and candid and impartial consideration of all of the evidence to be so undecided that he or she could not say that he or she has an abiding conviction of the defendant’s guilt.

It is such a doubt as would cause a reasonable person to pause or hesitate in the graver or more important transactions of life. However, it is not a fanciful doubt nor is it a whimsical doubt nor a doubt based on conjecture. It is a doubt based on reason.

The government is not required to establish guilt beyond all doubt or to a mathematical certainty or to a scientific certainty. Its burden is to establish guilt beyond a reasonable doubt.

The parties, the government and the defendant, are represented by lawyers. The function of counsel is to shape the presentation of evidence for his or her respective client and to monitor the evidence as it comes into the case so that the lawyer can protect the legal rights of his or her client.

The statements and arguments of lawyers are not evidence. They are intended to assist you in understanding the evidence. If any reference by attorneys to evidence does not coincide with your recollection of the evidence, it is your memory, not the recollection of counsel, that will control during your deliberations.

Moreover, occasionally during arguments a lawyer for one side or the other may appear to be stating his or her beliefs or personal opinions concerning the facts in the case or the credibility of the witness or witnesses. Of course, this would be improper. Lawyers’ personal beliefs or opinions have no place in the trial. They are not proper argument.

Rather counsel are permitted only to argue to you based upon what the evidence in the case has shown. If you think a lawyer comes to express his or her personal beliefs during an argument, you should disregard such expressions and judge the case only on the evidence.

Now, in the course of monitoring the evidence, the lawyers in the case may sometimes object when the other side has asked a question or made an argument or offered evidence which the objecting lawyer believes is not properly admissible.

You must not be prejudiced in any way against a lawyer who makes such objections. It is the lawyer’s responsibility to make a judgment about when to make objections, and when counsel makes objections, he or she is doing so pursuant to the function that he or she performs.

Now, if such an objection has been made and I have sustained the objection made by counsel, that means that you disregard the question and you must not speculate as to what the answer might have been.

After a witness answer a lawyer’s question, I have ruled that the answer should be stricken, you should disregard both the question and the answer in your deliberations. Likewise, as to exhibits, if I have sustained an objection or if I’ve ordered an exhibit stricken, then that means that it is not evidence in the case and you must not consider it as evidence in the case during your deliberations.

Now, the function of the court is to conduct the trial of the case in an orderly, fair and efficient manner. To rule on the questions of law that arise during the course of the trial and then to instruct you on the law which applies in the particular case.

The actions which I have taken during the trial in ruling on motions or objections by counsel, or in comments to the lawyers or in questions or comments to witnesses or even in setting forth the law in these or any other instructions I have given you, are not to be taken by you as any indication of my opinion as to the credibility of the witness or witnesses or how you should decide any particular fact or facts.

As I told you at the beginning of the trial, you may not take anything I might have said or done as indicating how I think you should decide this case. If you believe that I have expressed or indicated any opinion about the facts, you should ignore it. It is your sole and exclusive function to decide the verdict in this case.

Like the lawyers, if any reference I have made to the evidence does not coincide with your memory of the evidence, it will be your memory, not mine that controls during your deliberations.

Now, your function, ladies and gentlemen, is to be the judges of the facts. You are to determine what the facts are in this case. You are the sole judges of the facts and in performing that function, you alone, will decide what weight to give to the evidence presented during this trial. You will decide the value of the evidence and the believability of every single witness who has appeared before you.

You should determine the facts in this case without prejudice, without fear, without sympathy or favoritism. You should not be improperly influenced by anyone’s race, ethnic origin or gender. You will decide this case solely from a fair consideration of the evidence.

In the course of your deliberations on the facts, it is your duty to accept the law as I have stated it to you. You may not ignore any instruction or question the wisdom of any rule of law.

Now, the reason the parties, the lawyers, the judge and the jury come together in a trial is to consider the evidence in making a decision. Now, during their deliberations you may consider only the evidence properly admitted in this trial. The evidence in this case has consisted of sworn testimony of witnesses and exhibits which have been admitted into evidence. If during the trial I have sustained an objection to an exhibit as I indicated earlier, that exhibit is not evidence in the case.

Now, during your deliberations you may consider only the evidence which has been properly admitted in the trial and that evidence, as I’ve indicated, has come in a number of forms in this case. One of the forms that evidence has been presented to you in is something called testimony stipulated to by the parties.

Now, during the trial you were that the parties had stipulated, that is, had agreed to certain facts. Any stipulation of fact is undisputed evidence, and you may consider it undisputed evidence.

Now, during the trial you were told as well that the parties had stipulated, that is agreed to, what testimony a particular witness would have given had that witness testified in the case. Now, you are to consider this stipulated testimony as exactly what this witness would have said had the witness actually testified.

When you consider the evidence, you are permitted to draw, from the facts, which you find have been proved, such reasonable inferences as you feel are justified in light of your own human experience.

There are two types of evidence from which you may find the facts of this case. There is direct evidence and there is circumstantial evidence.

Now, when a witness asserts actual knowledge of a fact such as an eye witness, that testimony is considered to be direct evidence of whatever it is the witness has observed. On the other hand, when there’s been a chain of facts and circumstances which indicate the guilty or the innocence of the defendant that is called circumstantial evidence and the law makes no distinction between the weight you should give to either kind of evidence in this case.

For example, if you go home one evening and it is dry and cool and you go to bed and you wake up in the middle of the night and you look at the window and as you glance out the window and you see that it’s raining, well, the next day that would be direct evidence of the fact that during the night hours, it rained. You saw it rain.

On the other hand, suppose you sleep through the night. You don’t wake up and you wake up the next morning and it is not raining, but the streets are all wet, well, that may very well be circumstantial evidence of the fact that during the night hours while you slept, it rained, even though you did not see it rain. That would be circumstantial evidence.

Charts or summaries have been prepared by counsel and by the parties and shown to you during the trial of this case for the purpose of explaining facts that are allegedly contained, for example, in books and records and other documents which are in evidence in the case. Such charts or summaries are not evidence in this trial or proof of any fact.

If you find that these charts or summaries do not correctly reflect facts or figure shown by the evidence in the case, the jury should disregard the charts or summaries. In other words, such charts or summaries are used only as a matter of convenience for you and to the extent that you find they are not in truth summaries or facts or figures shown by the evidence itself in the case, you can disregard them entirely.

Now, on the other had there have been some charts or summaries prepared by the parties in this case and by counsel that have been admitted into evidence and have been shown to you during the course of the trial for the purpose of explaining facts that are allegedly contained in books, records, other documents which are in evidence.

You may consider charts and summaries that have been admitted into evidence as you would any other evidence in the case. You may consider the charts and summaries as you would any other evidence admitted during the trial and give these charts and summaries such weight or importance, if any, as you feel they deserve.

Now the rules of evidence ordinarily do not permit witnesses to testify as to their own opinions or their own conclusions about issues in the case. Sometimes witnesses are permitted to give their own opinions about matters and one of the exceptions is the exception that applies to the testimony of a person who is presented as an expert witness in the case.

Now an expert witness is someone who, by education or by experience, may have become knowledgeable in some technical, scientific or very specialized area. If such knowledge or experience may be of assistance to you in determining some of the evidence or in determining a fact, an expert witness in that area may state an opinion as to relevant and material matter in which that expert witness claims that he or she is an expert.

Now, you are not bound by the opinion of an expert. You should consider each expert opinion received in evidence in this case and give it such weight as you may think it deserves. You should consider the testimony of expert witnesses just as you consider the evidence in this case.

If you should decide that the opinion of an expert witness is not based upon sufficient education or experience or if you should conclude that the reasons given in support of the opinion are not sound, or if you should conclude that the opinion is outweighed by other evidence, you may disregard the opinion in part or in its entirety. As I have mentioned repeatedly, you the jury, ladies and gentlemen, are the sole judges of the facts in this case.

Now in determining whether the government has established the charges against the defendant beyond a reasonable doubt, you must consider and weigh the testimony of all of the witnesses who have appeared before you including whatever representatives or persons claimed to be representatives of the defendant.

Now, you are the sole judge of the credibility of the witnesses in this case. In other words, you alone are to determine whether to believe any witness and the extent to which any witness should be believed. In reaching a conclusion as to the credibility of any witness, you may consider any matter that may have a bearing on the subject. You may consider, for example, the demeanor and the behavior of the witness on the witness stand; the witness’ manner of testifying; whether the witness impresses you as a truthful person; whether the witness impresses you as having an accurate memory and recollection; whether the witness has any motive for not telling the truth; whether the witness had a full opportunity to observe the matters about which he or she has testified; whether the witness has any interest in the outcome of the case, or friendship or animosity toward other persons concerned with the case.

Now, inconsistencies -- well, let me mention before I get into inconsistences, that you have heard the evidence that Mr. James H. Lake has made a plea agreement with the government. His testimony was received in evidence and may be considered by you. You may give his testimony such weight as you think it deserves, whether or not his testimony may have been influenced by the plea agreement is for you to determine. The witness’ guilty plea cannot be considered by you as evidence of the defendant’s guilty. The witness’ guilty plea can be considered by you only for the purpose of determining how much, if at all, to rely upon the witness’ testimony.

Persons characterized as accomplices in the commission of a crime are competent witnesses and the government has a right to use them as witnesses. An accomplice is anyone who knowingly and voluntarily cooperates with, aids, assists, advises or encourages another person in the commission of a crime regardless of his or her degree of participation.

The testimony of an alleged accomplice should be received with caution and scrutinize with care. You should give it such weight as in your judgment it is fairly and entitled to receive. You may convict the defendant upon the uncorroborated testimony of an alleged accomplice only if you believe that the testimony of the accomplice proves the guilt of the defendant beyond a reasonable doubt.

You also heard that witnesses or a witness in this case has received immunity. What this means that the testimony of a witness may not be used against that witness who has testified in a criminal case.

Now, you should consider whether testimony may be colored in such a way as to further the witness’ own interests or a witness who realizes that he or she may obtain his or her own freedom by incriminating another has a motive to lie.

However, you may also consider that the witness is under the same obligation to tell the truth as is any other witness because the grant of immunity does not protect that witness against a prosecution for perjury or false statement he or she may make under oath.

Now, the testimony of a witness as to whom immunity has been granted should be received with caution and scrutinized with care. You should give the testimony such weight as in your judgment it is fairly entitled to receive.

Now, false or inconsistent statements that a defendant makes in explanation or defense, after a crime has been committed, do not create a presumption of guilt. You may consider evidence of such false or inconsistent statement, however, as tending to prove the defendant’s consciousness of guilt, but you are not required to do so.

You should consider and weight evidence of the defendant’s false or inconsistent statements, if any exists, with all of the other evidence in the case and then give it such weight as you believe it is fairly and entitled to receive.

A false and inconsistent statement must have been made by a Sun-Diamond officer, employee or agent acting in his or her capacity as such an officer, employee or agent.

Now, inconsistencies or discrepancies in the testimony of any witness or between the testimony of different witnesses may or may not cause you to discredit such testimony. Two or more persons witnessing an incident or transaction may see or hear it differently. An innocent misrecollection, like a failure to recall, is not an uncommon experience. In weighing the effect of the inconsistency or the discrepancy, always consider whether it pertains to a matter of important or unimportant detail and whether the inconsistency or discrepancy results from innocent error or intentional falsehood.

In your consideration of the evidence, you are not limited solely to what you saw and heard as the witnesses testified or as exhibits were admitted into evidence. You may consider the reasonableness or unreasonableness, the probability or improbability, of the testimony of a witness in determining whether to accept it as true and accurate. You may consider whether the witness has been contradicted or corroborated by other credible evidence in the case.

Now, if you believe that any witness has shown him or herself to be biased for or prejudiced against either side in this trial, you may consider and determine whether such bias or prejudice has colored the testimony of such witness so as to affect the desire and capability of that witness to tell the truth. Now, you should give the testimony of each witness such weight as in your judgment it is fairly entitled to receive.

Now, the weight of the evidence, ladies and gentlemen, is not necessarily determined by the number of witnesses testifying for either side. Rather, you should consider all of the facts and circumstances in evidence to determine which of the witnesses you believe. You may find the testimony of a smaller number of witnesses on one side is more believable than the testimony of a greater number of witnesses on the other side or you may find to the contrary.

Turning now to the charges and a few general remarks. First, ladies and gentlemen, the indictment is merely a formal way of accusing a person of a crime so that that person may be brought to trial. You must not consider the indictment as evidence of any kind. You may not consider it as evidence of the defendant’s guilt or draw any inferences of guilt simply because the defendant has been indicted.

Second, you must not allow the nature of the charge or charges to affect your verdict. You must consider only the evidence that has been presented in this case in rendering a fair and impartial verdict.

Now, as to the charges in the case, ladies and gentlemen, the defendant is charged in an indictment which I will discuss shortly. In order to prove the defendant guilty, the government must prove beyond a reasonable doubt all of the elements of the particular charge or charges that are contained within the indictment.

I’m going to now briefly summarize the counts in the indictment rather read the entire indictment to you and I will give you some general information and then some specific information. As you know, the indictment charges nine separate offenses called counts.

Now, a separate offense is charged in each count of the indictment which you will consider. Each offense and the evidence which applies to it should be considered separately and you should return separate verdicts as to each count, unless I otherwise instruct you.

The fact that you may find a defendant guilty or not guilty on any one count of the indictment should not control or influence your verdict with respect to any other count or counts in the indictment.

You will note when and if you review the indictment that the indictment charges offenses that were committed "on or about" January the 5th, 1993 through "on or about" June of 1994. The proof need not establish with certainty the exact date of the alleged offenses. It is sufficient if the evidence in the case establishes beyond a reasonable doubt that the offense were committed on a date reasonably near the date alleged.

You may consider, ladies and gentlemen, this case as I have instructed you and you may find the defendant guilty of the crime charged in a particular count or counts in the indictment without finding that it personally, it, meaning the defendant, it personally committed each of the acts that make up the crime or that its officers, employees or agents were present while the crime was being committed.

Any person or company who, in some way, intentionally participates in the commission of a crime, aids and abets the principal offender. It, therefore, is as guilty of the crime as if it would be if its officers, employees or agents had personally committed each of the acts that make up the crime.

To find the defendant aided and abetted in committing the crime, you must find that the defendant knowingly associated itself with persons who committed the crime, that it participated the crime as something it wished to bring about and that it intended by its actions to make it succeed.

Some affirmative conduct by the defendant to help in the planning or carrying out the crime is necessary. The government is not required to prove that anyone discussed or agreed upon a specific time or method of committing the crime, nor need the government prove that the principal offender and the person or company alleged to be the aid or an abetter directly communicated with each other.

It is not necessary that the defendant have had the same intent that the principal offender had when the crime was committed or that it have intended to commit the particular crime committed by the principal offender.

An aider and abetter is legally responsible for the acts of other persons that are the natural and probable consequence of the crime in which it intentionally participates.

It is sufficient if you find beyond a reasonable doubt that the crime was committed by someone and that the defendant knowingly and intentionally aided and abetted the principal offender in committing the crime.

You may not draw any inference favorable or unfavorable towards the government or the defendant from the fact that any person was not named as a defendant in this case or is not on trial before you at this time. Any such matter has no bearing upon our function as jurors.

Ladies and gentlemen, a corporation is a legal entity that may act only through its agents. The agents of a corporation are its officers, directors, employees and certain others who are authorized by the corporation to act for it.

A corporate defendant is entitled to the same individual and impartial consideration of the evidence that the jury gives to a personal defendant. A corporation may be found guilty of the offense charged or be found not guilty of the offense charged under the same instructions that apply to a personal defendant.

In order to sustain its burden of proof for the crime as charged in the indictment against the defendant, the government must prove to you beyond a reasonable doubt that each of the essential elements of the offense as given to you shortly was committed by an officer, director, employee or agent of the corporation.

In addition to the above, the government must also establish the following two elements beyond a reasonable doubt in order to sustain its burden of proof as to the defendant.

First, that each of the acts committed by the officer, director, employee or agent were within the course and scope of employment or agency given to the officer, director, employee or agent by the defendant.

And two, that the officer, director, employee or agent committed each of the essential elements or the offense with the intent to benefit the defendant.

Now, in order to establish that an act was committed or omitted within the course and scope of employment, the evidence must show that the act or omission related directly to the general duties that the officer, director, employee or agent was expected to perform by the defendant corporation. It is not necessary for the government to prove that the act was authorized by the corporation formally or in writing.

An officer, director, employee or agent is not acting within the course and scope of his employment, however, if that person performs an act which the defendant has in good faith forbidden its officers, directors, employees or agents to perform. A corporate defendant like an individual defendant may not avoid responsibility for its action by meaningless or purely self-serving pronouncements. Similarly, a corporate defendant like an individual defendant may not be held responsible for acts which it tries to prevent.

Now, someone’s intent and knowledge ordinarily cannot be proved directly because there is no way of directly looking into the workings of the human mind. But, you may infer the defendant’s intent or knowledge from the surrounding circumstances. You may consider any statement made, or act done or omitted by the defendant, and all other facts and circumstances received in evidence which indicate the defendant’s intent or knowledge. The defendant in this case is a corporation. Because corporations act through their agents, officers and employees, the knowledge of the corporation is considered to be collective knowledge of its agents, employees and officers formed in the pursuant of their corporate responsibilities.

In this case, if you determine beyond a reasonable doubt that Richard Douglas, Sun-Diamond’s senior vice president for corporate affairs at the time, had the necessary knowledge and intent to commit a charged offense, that the intent may be attributed to Sun-Diamond Growers.

The defendant may also be to have harbored the knowledge and intent necessary to commit a crime, that is, to commit a criminal offense, if you determine beyond a reasonable doubt that Richard Douglas’ knowledge and intent plus the knowledge and intent of other Sun-Diamond officers, directors, employees or agents considered as a whole had the knowledge and intent to commit a crime.

Finally, you may find that the defendant had the knowledge and intent to commit a crime, a criminal offense, if you find beyond a reasonable doubt that Sun-Diamond officers, directors, employees and agents other than Richard Douglas, individually or collectively, had the necessary knowledge and intent to commit the crime.

You may infer, but are not required to infer, that the person intends the natural and the probable consequences of acts done or knowingly omitted. It is entirely up to you, however, to decide what facts to find from the evidence received during the trial.

You should consider all of the circumstances in evidence that you think are relevant in determining whether the government has proved beyond a reasonable doubt that the defendant acted with the necessary state of mind.

Now, let me tell you what the statutes say regarding the various offenses alleged by the government in this case and then I’ll break them down into the counts that you will be considering in connection with this case.

Now, you’ve heard the term gratuity and illegal gratuity used throughout this trial. An illegal gratuity is a shorthand term for the conduct prohibited by the following statute.

In relevant part, the statute provides, "Whoever, otherwise than as provided by law for the proper discharge of official duties directly or indirectly, give, offers or promises anything of value to any public official for or because of any official act performed or to be performed by such public official or persons selected to be a public official shall be guilty of an offense against the United States."

Let me read that selection to you again. The language of the statute you are to consider is, ""Whoever offers or promises anything of value to any public official for or because of any official act performed or to be performed by such public official or persons selected to be a public official shall be guilty of an offense against the United States."

That is the statute that describes the offense generally termed illegal gratuity for a public official.

Ladies and gentlemen, that concludes the initial reading of the instructions. There will be a short block of instruction I will be giving you at the end. Mr. Greenberg and Mr. Hibey will be giving their closing arguments now.