UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

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No. 98-3001

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UNITED STATES OF AMERICA

    Plaintiff-Appellant

versus

ALPHONSO MICHAEL ESPY

   Defendant-Appellee

___________________________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

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BRIEF FOR APPELLANT

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    CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

   (A) Parties and Amici

    1. United States of America.

    2. Alphonso Michael Espy, defendant.

   (B) Rulings Under Review

       The Government seeks review of that portion of the Omnibus Opinion and Order of the Hon. Ricardo M. Urbina, filed December 23, 2997, dismissing Counts 26 to 28 of the Indictment (brought under 21 U.S.C. § 622) and Count 39 of the Indictment (brought under 18 U.S.C. § 1001).

   (C) Related Cases

      This appeal might be related within the meaning of Circuit Rule 28(a)(1)(C) to United States v. Sun-Diamond Growers of California, No. 97-3072, pending in this court, in that both concern allegations of gratuities given to Alphonso Michael Espy, who is the defendant in the present appeal. Additionally, this appeal might be related within the meaning of Circuit Rule 28(a)(1)(C) to United States v. Jack L. Williams, Cr. No. 96-0314 (JR), presently pending in the United States District Court for the District of Columbia, since both concern violations of 21 U.S.C. § 622 through gifts given to Alphonso Michael Espy, who is the defendant in the present appeal.

   TABLE OF CONTENTS

   STATEMENT OF THE CASE AND RELEVANT FACTS

    This prosecution is part of an ongoing inquiry into the actions of former Secretary of Agriculture Alphonso Michael Espy, undertaken pursuant to 28 U.S.C. § 591 et seq. by an independent counsel appointed for that purpose. On August 27, 1997, the Grand Jury issued a thirty-nine count indictment against defendant, former Secretary of Agriculture Espy. (Appendix ("App.") at 12).⁽²⁾ Defendant moved to dismiss multiple counts of the indictment pursuant to Federal Rule of Criminal Procedure 12(b)(2). In an Omnibus Opinion and Order filed December 23, 1997, the district court denied the motions as to most counts, but granted them as to Counts 26 to 28, brought under the Meat Inspection Act, 21 U.S.C. § 622, and as to Count 39, brought under the False Statement Statute, 18 U.S.C. § 1001. (App. at 87).

    The trial court's rationale for dismissing the Meat Inspection Act counts was that "Congress did not intend for § 622 to extend to the Secretary of Agriculture." (Omnibus Opinion ("Opn.") at 51; App. at 137). The trial court's rationale for dismissing the False Statement count was that "defendant's alleged false statements were not made in matters within the jurisdiction of any executive 'department' of the United States." (Opn. at 52; App. at 138).

    The Government timely appealed these dismissals pursuant to 18 U.S.C. § 3731.

   SUMMARY OF THE ARGUMENT

    The trial court defied the plain meaning of the words of the Meat Inspection Act, 21 U.S.C.§ 622, when it held that the statute's prohibition on the receipt of gratuities does not reach the former Secretary of Agriculture. The statute specifically forbids the receipt of things of value by "any inspector, deputy inspector, chief inspector, or other officer or employee of the United States authorized to perform any of the duties prescribed by this subchapter;" the Secretary of Agriculture is an officer and employee of the United States for whom the subchapter prescribes numerous duties. The doctrine of ejusdem generis does not dictate a different result, because it cannot be applied to alter the plain meaning of a statute's words, and because it does not apply where, as here, the specific terms of a list in a statute exhaust the category to which the general term would be assigned. Even though the statute provides for summary discharge of convicted officials, applying it to the Secretary of Agriculture does not raise a conflict with the constitutional limitation on Congress's power to discharge principal officers, because enforcement of the statute lies with the Executive branch, the defendant here is not a sitting Secretary, and the discharge provision is severable from the felony punishments.

    The trial court defied the plain meaning of the False Statement Statute, 18 U.S.C. § 1001, when it held that the statute's prohibition on false statements made in any matter within the jurisdiction of any department or agency of the United States did not include false statements made in matters within the jurisdiction of the Executive Office of the President. The definitions of "department" and "agency," which for the purposes of Title 18 appear at 18 U.S.C.§ 6, clearly include the Executive Office of the President, an instrumentality of the Executive Branch that in this instance was charged with investigating the ethical performance of a Cabinet officer.

ARGUMENT

    I. THE STANDARD OF REVIEW ON APPEAL

    This court reviews a district court's interpretation of a statute, and in particular the question of whether a criminal statute applies to the acts of a given defendant, de novo. United States v. Neville, 82 F.3d 1101, 1104 (D.C. Cir. 1996). This court reviews the dismissal of a count of an indictment on legal grounds de novo. See, United States v. Oakar, 111 F.3d 146 (D.C. Cir. 1997).

    II. THE INDICTMENT PROPERLY CHARGED VIOLATIONS OF THE MEAT INSPECTION ACT

    A. The Meat Inspection Act Expressly Prohibits the Secretary of Agriculture from Accepting a Gratuity

    The district court's interpretation of the Meat Inspection Act ignored the plain language of the statute.⁽³⁾ The gratuities section of the Act, section 622, by its terms applies to any official with responsibilities under the Act. The Secretary of Agriculture has responsibilities under the Act, but the district court nevertheless concluded that section 622 does not apply to him. The district court concluded, perversely, that the official with the highest responsibilities under the Act is the one whom Congress did not include when it forbade the receipt of gratuities.

    The district court reached the wrong conclusion by asking the wrong question. The court assumed that, under section 622, only meat inspectors are prohibited from receiving gratuities. ("Section 622 mandates that an officer or employee of the United States, who is authorized to inspect meat, be summarily discharged if convicted for accepting gifts or other things of value." (Opn. at 46; App. at 132). Therefore, the court concerned itself, not with the pertinent question of whether the statute covered the Secretary, but rather with the narrower question of whether the Secretary is authorized to inspect meat. ("In fact, the Meat Inspection Act does not vest the Secretary of Agriculture with meat inspection duties . . . ." (Opn. at 49; App. at 135).

    Such an analysis is beside the point. The statute does not prohibit just meat inspectors from accepting gratuities. The statute specifically prohibits the receipt of gratuities by "any inspector, deputy inspector, chief inspector, or other officer or employee of the United States authorized to perform any of the duties prescribed by this subchapter . . . ." 21 U.S.C. § 622 (emphasis added). Thus, section 622 reaches not just meat inspectors, but any officer or employee of the United States for whom the subchapter prescribes duties. Because the subchapter in which section 622 appears prescribes numerous duties, including but not limited to meat inspection, section 622 reaches more officers and employees than just meat inspectors -- including the Secretary of Agriculture.

    Specifically, the subchapter in which section 622 appears is Subchapter I of Chapter 12 of Title 21 of the United States Code. Subchapter I embraces 21 U.S.C. §§ 601 to 645. Within that subchapter, the Secretary of Agriculture is prescribed numerous duties, including the following: "the Secretary shall cause to be made, by inspectors appointed for that purpose, an examination and inspection of all cattle . . . ." (21 U.S.C. § 603(a)); "the Secretary shall cause to be made, by inspectors appointed for that purpose, an examination and inspection of the method by which cattle . . . are slaughtered and handled . . . ." (21 U.S.C. § 603(b)); "the Secretary shall cause to be made by inspectors appointed for that purpose a post mortem examination and inspection of the carcasses and parts thereof of all cattle . . . ." (21 U.S.C. § 604); "the Secretary shall cause to be made, by experts in sanitation or by other competent inspectors, such inspection of all slaughtering . . . ." (21 U.S.C. § 608); "the Secretary shall cause an examination and inspection of all cattle . . . ." (21 U.S.C. § 609); "the Secretary shall cause to be made a careful inspection of all cattle . . . intended and offered for export to foreign countries . . . ." (21 U.S.C. § 612); "the Secretary shall also cause to be made a careful inspection of the carcasses . . . ." (21 U.S.C. § 615); "the Secretary shall submit [to the designated House and Senate Committees] a comprehensive and detailed written report . . . ." (21 U.S.C. § 620(e)); and "the Secretary shall, from time to time, make such rules and regulations as are necessary for the efficient execution of the provisions of this subchapter." (21 U.S.C. § 621) (emphasis added).

    Clearly, these are all critical duties under the Act, even if they do not necessarily contemplate the Secretary himself physically inspecting a carcass. Thus it was entirely rational for Congress to prohibit the Secretary from accepting gratuities, because they could influence his performance of duties under the Act, and thereby frustrate Congress's purpose in enacting the statute. "It is hereby found . . . that regulation by the Secretary . . . [is] appropriate . . . to protect the health and welfare of consumers." 21 U.S.C. § 602. While a corrupt inspector could allow some unhealthy carcasses to reach the public, a corrupt Secretary, through the promulgation of ineffective regulations or through lax administration of the law, could place the entire meat-eating population at risk.

    The district court's decision to read the statute as meaning something other than what it so clearly states violated the fundamental rule of statutory construction. Statutory construction begins with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose. Park 'N Fly, Inc. v. Dollar Park and Fly, 469 U.S. 189, 194 (1985); Norfolk & Western v. American Train Dispatchers' Ass'n, 499 U.S. 117, 128 (1991) ("As always, we begin with the language of the statute and ask whether Congress has spoken on the subject before us. 'If the intent of Congress is clear, that is the end of the matter; for the court . . . must give effect to the unambiguously expressed intent of Congress.'") (citing Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-843, (1984)).⁽⁴⁾ A court only can ascertain that meaning by interpreting what Congress said, not what it may or may not have intended. See Bifulco v. United States, 447 U.S. 381, 401 (1980) (Burger, J., concurring) ("[T]he question before the Court is substantially more limited: What do the words of the statute mean? Of course, we must try to discern the intent of Congress. But we perform that task by beginning with the ordinary meaning of the language of the statute."). Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive. Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980).

    Curiously, the district court found support for its erroneous conclusion in the fact that the Meat Inspection Act was inspired by Upton Sinclair's famous novel The Jungle. ("First, Congress did not intend for § 622 to cover the Secretary of Agriculture. The Meat Inspection Act was enacted as a result of Upton Sinclair's 1906 novel, The Jungle." (Opn. at 48; App. at 134)). This citation is curious because Sinclair's outrage was not directed solely at corrupt meat inspection; it extended all the way to Washington and to corruption at the highest levels undermining regulation of the industry:

    Upon the ocean of commerce [the Beef Trust] sailed as a pirate ship; it had hoisted the black flag and declared war upon civilization. Bribery and corruption were its everyday methods. . . . In the national capital it had the power to prevent inspection of its product, and to falsify government reports . . . .

   Upton Sinclair, The Jungle (New American Library 1988) (1906), 311-312 (emphasis added). If, as the district court concluded, The Jungle inspired the Meat Inspection Act, then the present prosecution appears to be precisely what Congress had in mind.

    Next, the district court concluded that the Meat Inspection Act did not give the Secretary meat inspection duties, because it gives him the power to appoint and direct meat inspectors. (Opn. at 49; App. at 135). This observation is a non-sequitur, but it is also beside the point, because section 622 governs the behavior, not just of meat inspectors, but of all officials with duties under the Act. But the court's conclusion is wrong, in any event, because as the head of the Department, the Secretary shares all the responsibilities of the inspectors and other employees within his organization. As the head of the Department of Agriculture, the Secretary of Agriculture is the "chief inspector," and the statute by its terms applies to "any inspector, deputy inspector, [or] chief inspector." If it were not immediately obvious that the Secretary, as head of the Department, manifests all of the functions of his subordinates, this point is emphasized by the fact that Congress has repeatedly transferred to him all functions of his subordinates not previously vested in him. See 7 U.S.C. § 6911; 67 Stat. 633 (1953), reprinted in 7 U.S.C.A. § 2201 (Reorganization Plans).

    The district court then held that "§ 622 does not expressly or contextually recognize the Secretary of Agriculture as covered under the Act." (Opn. at 50; App. at 136). The court's reasoning on this point is far from clear, but it apparently found significance in the fact that other sections of the Act refer specifically to the Secretary by name, while section 622 does not. But the other sections to which the court refers (21 U.S.C. §§ 603, 604, 606, 608, 609, 615, 616, and 621), unlike section 622, enumerate duties that are the Secretary's alone, and therefore would naturally mention him specifically. Section 622 does not mention the Secretary by name because it does not describe a duty or restriction that is specific to him.

    The only real reason the district court gave for reading the section 622's phrase "any officer or employee of the United States authorized to perform any of the duties prescribed by this subchapter" contrary to its plain meaning was a supposed application of the doctrine of ejusdem generis. (Opn. at 50-51; App. at 136-37). However, the court completely misapplied the doctrine.

    Ejusdem generis is a canon of statutory construction under which, when a general term follows a list of specific terms, the general term can be read as belonging to the same class as the specific terms. However, "[t]he rule of ejusdem generis is not more than an aid to construction and comes into play only when there is some uncertainty as to the meaning of a particular clause in a statute." United States v. Turkette, 452 U.S. 576, 581 (1981). For example, in the lone authority upon which the district court relied, American Min. Congress v. EPA, 824 F.2d 1177, 1189 (D.C. Cir. 1987), the question was whether the general phrase "other discarded materials" referred solely to waste or included recycled materials, a question not answered on the face of the statute.

    Here, it cannot fairly be said that the meaning of the phrase in question -- "other officer or employee of the United States authorized to perform any of the duties prescribed by this subchapter" -- is anything but certain. On the face of the statute, certain duties are prescribed and certain officers and employees, including the Secretary, are authorized to perform them. Where, as here, the phrase to be interpreted has a plain and unambiguous meaning, ejusdem generis has no role to play in statutory interpretation. Garcia v. United States, 469 U.S. 70, 74-75 (1984).

    Moreover, the district court clearly misapplied the doctrine, because it cannot be used to interpret the general term in a list where, as here, the specific terms exhaust the category they describe; in such instance, the general term would be superfluous. The Supreme Court explained this principle in a case very similar to the present one, United States v. Mescall, 215 U.S. 26 (1909), which concerned a statute prohibiting smuggling by an "owner, importer, consignee, agent, or other person." The defendant there was a government official who helped a consignee smuggle goods, and who therefore was not a owner, importer, consignee, or agent -- he was, at best, an "other person." He invoked the rule of ejusdem generis, arguing that a government official who was not attempting to import merchandise was not of the same class as the specifically enumerated persons, all of whom were private importers. The Supreme Court soundly rejected this argument:

    [Ejusdem generis] is not a cast-iron rule, it does not override other rules of construction, and it is never applied to defeat the real purpose of the statute, as that purpose may be gathered from the whole of the instrument. . . . [W]here the particular words exhaust the class, the general words must be construed as embracing something outside of that class. If the particular words exhaust the genus, there is nothing ejusdem generis left, and in such case we must give the general words a meaning outside of the class indicated by the particular words, or we must say that they are meaningless, and thereby sacrifice the general to preserve particular words. In that case the rule would defeat its own purpose.

   Id. at 31-32. Accord Mid-Northern Oil Co. v. Walker, 268 U.S. 45, 49-50 (1925); Mason v. United States, 260 U.S. 545, 553-554 (1923). See Singer, Sutherland on Statutory Construction § 47.21 (1992). This court rejected application of ejusdem generis for the same reason in Otis Elevator Co. v. Secretary of Labor, 921 F.2d 1285, 1289 (D.C. Cir. 1990).

    The district court's use of the doctrine in this case was thus clearly improper, because it rendered the general language superfluous. The court held that "the terms 'officer or employee' must be construed to mean those who perform the duties of meat inspectors," because "the specific terms of 'inspector, deputy inspector, or chief inspector' immediately precede the broader terms of 'officer or employee of the United States.'" (Opn. at 51; App. at 137). But if the phrase "officer or employee" means nothing more than a meat inspector, then the phrase adds nothing to the statute and is entirely superfluous, since the specific terms already bring meat inspectors into the statute. This is an untenable interpretation of the statute, which must instead be read to mean what it plainly states: that no official with duties under the subchapter -- including meat inspectors, the Secretary, and anyone else with enumerated duties -- may accept gratuities.

    B. There Is No Constitutional Impediment to Interpreting the Meat Inspection Act As Written

    As the previous subsection explains, the district court's interpretation of the Meat Inspection Act directly conflicts with the language of the statute, since section 622's ban on accepting gratuities applies to any officer of the United States who performs duties under the Act, and the Secretary was such a person when he accepted the gratuities at issue. To reach the result it did, the district court used what it called a "narrow construction" of the statute. (Opn. at 44; App. at 130). As we discuss above, this "narrow construction" was a blatant misreading of the plain terms of the statute. But, in any event, there was no basis for the district court to read the statute "narrowly."

    The court's reason for interpreting the statute in this fashion was a professed desire to avoid confronting a perceived constitutional infirmity in the statute -- the application of its "summary discharge" provision to a sitting Cabinet officer. In reality, though, there is no constitutional problem in applying the statute, and the district court did not have the power to rewrite the statute in the fashion it did.

    One anomalous consequence of the district court's reasoning is that a principal officer, one appointed by the President and approved by the Senate is automatically outside the statute's reach, while an inferior officer performing precisely the same duties would be subject to the statute. For example, the Secretary of Agriculture has delegated his responsibilities under the Meat Inspection Act to the Under Secretary for Food Safety, 7 C.F.R. § 2.18(a)(1)(ii)(B), who in turn has delegated that authority to the Administrator, Food Safety and Inspection Service, 7 C.F.R. § 2.53(a)(2)(ii). But since the former officer is a principal officer, and the latter is not, the Secretary of Agriculture and the Under Secretary for Food Safety could, under the district court's reasoning, take gratuities with impunity while the Administrator, Food Safety and Inspection Service, with exactly the same responsibilities under the Act, would commit a felony by doing so.

    Nevertheless, the district court reasoned as follows. Section 622 unquestionably provides that an employee or officer of the United States convicted under the provision shall be summarily discharged from office. However, since the Secretary of Agriculture is a principal officer of the United States, Congress cannot remove him from office except by impeachment. Therefore, the court concluded, Congress must not have meant for the statute to apply to the Secretary. (Opn. at 44-47; App. at 130-33).

    The first immediately obvious flaw in this reasoning is that it has nothing to do with the present case because the Government has not attempted to apply the statute to a sitting Secretary. The defendant is a former Secretary of Agriculture, and cannot be discharged from office even if convicted. Therefore, even if there were a constitutional problem in applying the statute to a sitting Secretary (and there is not, as we discuss below), that problem could not arise in this case.

    The next flaw in the district court's reasoning is that the statute is not an example of Congress attempting to exert the power to discharge a principal officer of the United States. This is not, in other words, a case like Bowsher v. Synar, 478 U.S. 714, 722 (1986), the sole authority the district court relied upon for this point. In Bowsher, Congress retained for itself the discretionary power to discharge the Comptroller General, an official exercising executive powers. Here, however, Congress has no discretionary power under the Act to discharge the Secretary of Agriculture (or anyone else). Rather, it has passed a criminal law providing that, if an officer is prosecuted to conviction under the statute (an executive function to be carried out solely by the Executive branch wholly at its own discretion), then part of the consequent punishment is discharge from office.

    However, even assuming that a sitting Secretary of Agriculture would have a colorable constitutional objection to discharge from office following conviction under the statute, it does not follow that the statute as a whole would not apply to him. It simply means that one of the two consequences of conviction (summary discharge) could be withheld, while the other (fine and/or incarceration) would not.

    This is the path dictated by the Supreme Court when one of multiple penalties under a criminal statute is held to be unconstitutional. For example, in United States v. Jackson, 390 U.S. 570, 585 (1968), the Court found that the death penalty prescribed by the Federal Kidnaping Act was unconstitutional, but that the statute as a whole, including the alternative punishments it prescribed, were constitutional and could be imposed:

    The unconstitutionality of a part of an Act does not necessarily defeat . . . the validity of its remaining provisions. Unless it is evident that the legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as law.

   Id. (citing Champlin Rfg. Co. v. Corporation Comm'n of St. of Okl., 286 U.S. 210, 234 (1932)); New York v. United States, 505 U.S. 144, 186 (1992) (citing Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987)).⁽⁵⁾

    The fundamental error of the district court was in letting its doubts about the constitutional propriety of a single penalty color its view of the statute as a whole. This approach to statutory interpretation is entirely backward:

    [I]t is not to be presumed that the legislature was legislating for the mere sake of imposing penalties, but the penalties . . . were simply in aid of the main purpose of the statute. They may fail, and still the great body of the statute have operative force, and the force contemplated by the legislature in its enactment.

   Jackson, 390 U.S. at 570 (quoting Reagan v. Farmers' Loan & Trust Co., 154 U.S. 362 (1894)).

    Thus, what the Supreme Court said about the death penalty provision of the Federal Kidnaping Act would apply with equal force to the summary discharge provision of the Meat Inspection Act in an (entirely hypothetical) prosecution of a sitting Secretary:

    The clause in question is a functionally independent part of the [statute]. Its elimination in no way alters the substantive reach of the statute and leaves completely unchanged its basic operation. Under these circumstances, it is quite inconceivable that the Congress which decided to authorize [the challenged punishment] would have chosen to discard the entire statute if informed that it could not include [the challenged punishment] now before us.

   Jackson, 390 U.S. at 570. In other words, if some day there is a prosecution of a sitting Secretary under the Meat Inspection Act, and if the court then perceives a constitutional problem with the summary discharge provision, then the felony punishments of the statute will still apply -- as they must in the present prosecution.

    Consequently, the district court's professed constitutional reservations are inadequate to overcome the plain meaning of the statute. "Courts in applying criminal laws generally must follow the plain and unambiguous meaning of the statutory language. Only the most extraordinary showing of contrary intentions in the legislative history will justify a departure from that language." Salinas v. United States, __ U.S. __, 118 S.Ct. 469, 474 (1997). Here, of course, the oblique inference that Congress might not have wanted to discharge a sitting Secretary from office is scarcely an "extraordinary showing of contrary intentions" warranting an interpretation wholly at odds with the statutory language, immunizing a former Secretary from any prosecution under the Act at all.

    III. THE INDICTMENT PROPERLY CHARGED VIOLATIONS OF 18 U.S.C. § 1001

    Count Thirty-nine of the Indictment charged Secretary Espy with making false statements to the Executive Office of the President in response to questions about his receipt of gratuities, in violation of 18 U.S.C.§ 1001. (Indictment at 50-51; App. at 61-62). That section forbade false statements made "in any matter within the jurisdiction of any department or agency of the United States."⁽⁶⁾ The district court's extremely narrow holding was that the Executive Office of the President was not a "department" within the meaning of the statute, and that the Indictment therefore lacked the requisite jurisdictional elements to sustain a charge under § 1001. (Opn. at 51-53; App. at 137-39).

    The district court's ruling defied the plain wording of the statute, and the clear congressional purpose behind it. The terms "department" and "agency" are defined for purposes of the Title 18 in 18 U.S.C. § 6. Section 6 defines "department" to mean:

    one of the executive departments enumerated in section 1 of Title 5, unless the context shows that such term was intended to describe the executive, legislative, or judicial branches of the government.

    Concededly, the Executive Office of the President is not enumerated in 5 U.S.C. § 1, so the question under this definition is whether the context shows that the term was intended to describe the executive branch of the government, of which the President sits at the apex. The district court relied entirely on Hubbard v. United States, 514 U.S. 695 (1995) for the proposition that the term "department" in the statute could not have been intended to mean the Executive branch as a whole. But Hubbard held only that the term "department" in the statute did not mean the judicial branch; the decision did not pretend to examine the same question for the executive branch.

    The context of section 1001 strongly suggests that the term "department" was intended to describe the entire executive branch, since it was broadly drafted to protect the quintessentially executive function of investigation, and the activities of federal instrumentalities properly carrying out that function. The statute stems from a "valid legislative interest in protecting the integrity of official inquiries." Bryson v. United States, 396 U.S. 64, 70 (1969). It furthers "the congressional intent to protect the authorized functions of governmental departments and agencies from the perversion which might result from the deceptive practices described." United States v. Gilliland, 312 U.S. 86, 93 (1941).

    Thus, in United States v. Rodgers, 466 U.S. 475 (1984), the Supreme Court rejected the argument that section 1001 was limited to false statements made in connection with administrative and regulatory functions:

    Limiting the term "jurisdiction" as used in this statute to "the power to make final or binding determinations" . . . would exclude from the coverage of the statute most, if not all, of the authorized activities of many "departments" and "agencies" of the Federal Government, and thereby defeat the purpose of Congress in using the broad inclusive language which it did. . . . [R]eferring as it does to "any department or agency," we think that such a narrow construction is simply inconsistent with the rest of the statutory language.

   Id. at 482.

    Thus, while Hubbard reinterpreted section 1001 to hold that the Judicial Branch is not a "department" within the meaning of the statute, it did not undermine the straightforward reading of the statute that the Executive Branch is a "department."⁽⁷⁾ Indeed, this court's reading is that "[i]n Hubbard, the Court narrowed the reach of § 1001 to matters within the executive branch, a coverage consistent with both the common usage of 'department' and that term's definition in Title 18." United States v. Dean, 55 F.3d 640, 659 (D.C. Cir. 1995).

    However, even if the term "department" were to be given the extremely narrow definition adopted by the district court, section 1001 prohibits false statements concerning matters within the jurisdiction of any "department or agency." The district court did not even address whether the Executive Office of the President could be an agency within the meaning of the statute. The definition of "agency"in 18 U.S.C. § 6 is very broad, seemingly encompassing any instrumentality of the government that might exercise executive power:

    The term "agency" includes any department, independent establishment, commission, administration, authority, board or bureau of the United States or any corporation in which the United States has a proprietary interest, unless the context shows that such term was intended to be used in a more limited sense.

    The Executive Office of the President has been specifically recognized as an "agency" within the meaning of Title 18. Executive Order No. 12674, 54 F.R. 15159 (1989), as amended by Executive Order No. 12731, 55 F.R. 42547 (1990), provided:

    Sec. 202. Executive Office of the President

    In that the agencies within the Executive Office of the President (EOP) currently exercise functions that are not distinct and separate from each other within the meaning and for the purpose of section 207(e) of Title 18, United States Code, those agencies shall be treated as one agency under section 207(c) of Title 18, United States Code.

    As this court has noted, "the definition [of agency] in § 6 describes entities that are ordinarily found only within the Executive Branch." United States v. Oakar, 111 F.3d 146, 154 (D.C. Cir. 1997). In Oakar, this court rejected an application of § 1001 to a defendant who had filed a false financial statement form with the Clerk of the House of Representatives. Although the government argued that the Attorney General could have sought civil penalties for the false statements, this court precluded application of § 1001, because "there is no basis to conclude that the statements could have interfered with the work of the Executive Branch, and that rationale for the application of § 1001 is missing in Oakar's case." Id. at 155.

    Here, in contrast, the rationale for application of § 1001 is precisely the fact that defendant's false statements could and did interfere with the work of the Executive Branch. They interfered with the President's power to investigate the ethical behavior of his subordinates, carried out by his Executive Office, a power no less significant, indeed far more weighty, than that of the Federal Bureau of Investigation or the Secret Service to make similar inquiries. "Unless one is simply to read the phrase 'any department or agency' out of the statute, there is no justification for treating the investigatory activities of one agency as within the scope of § 1001 while excluding the same activities performed by another agency." United States v. Rodgers, 466 U.S. at 481, n.2.

    Thus, while Hubbard precluded application of § 1001 for false statements made to a court, and inferentially for false statements made to Congress, it did not suggest that the scope of the statute should be narrowed when the false statements are made to an instrumentality of the Executive Branch exercising the essential executive function of investigation and inquiry. The district court's dismissal of count 39 was based on an unreasonably and unacceptably narrow reading of the statute, and must be reversed.

    IV. CONCLUSION

    The district court's dismissal of four counts of the Indictment resulted wholly from a blatant misreading of the applicable statutes. The Meat Inspection Act prohibits the receipt of gratuities by any officer of the United States with duties prescribed by the Act, and the Indictment charged defendant with accepting gratuities during his tenure as Secretary of Agriculture, an officer with duties prescribed under the Act. The False Statement Statute prohibits false statements made in matter within the jurisdiction of any department or agency of the United States, and the Indictment charges that defendant made false statements in an

   investigation within the jurisdiction of the Executive Office of the President, a department and agency of the United States. All of the dismissals must be reversed, and the dismissed counts remanded to the district court for trial.

   Date: January 16, 1998

    Respectfully submitted,

    OFFICE OF INDEPENDENT COUNSEL

    In re Alphonso Michael (Mike) Espy

    __________________________________

    Donald C. Smaltz

    Independent Counsel

    Theodore S. Greenberg

    Deputy Independent Counsel

    Charles M. Kagay

    Chief Appellate Counsel

    Joseph P. Guichet

    Associate Independent Counsel

    103 Oronoco Street, Suite 200

    Alexandria, Virginia 22314

    Phone: (703) 706-0010

    Fax: (703) 706-0076

   CERTIFICATE OF SERVICE

    I HEREBY CERTIFY that a two copies of the foregoing Brief for Appellant and the Appendix of the United States of America were sent this 16th day of January, 1998, via hand delivery to the following counsel:

    Reid Weingarten, Esq.

    Steptoe & Johnson, LLP

    1330 Connecticut Ave., N.W.

    Washington, D.C. 20036

    ____________________________

    Joseph P. Guichet

    Associate Independent Counsel

CERTIFICATION REGARDING LENGTH OF BRIEF

    I hereby certify pursuant to Circuit Rule 28(d)(1) that the length of this Appellant's Opening Brief is less than 12,500 words.

    ____________________________

    Joseph P. Guichet

    Associate Independent Counsel

   A:\!ESPYNDO.CS\ESPYIN~3

   1. Authorities upon which we chiefly rely are marked with asterisks.Back

   2. Because this brief is filed on an expedited basis, the Government has proposed an agreement on the contents of the Appendix but has not yet secured such an agreement with defendant. In the event that a renumbering of the pages of the Appendix is required, the Government will file a revised brief with updated citations.Back

   3. In contrast, the Attorney General, in referring this matter to the Independent Counsel, understood exactly what the statute provides. In her application, the Attorney General represented, inter alia, that:

    The facts established by the Department's investigation represent potential violations by Secretary Espy of 21 U.S.C. § 622 and 18 U.S.C. § 201(c).

    Title 21, United States Code, Section 622 is a strict anti-gratuity statute which prohibits any Department of Agriculture employee or officer with responsibilities under the Meat Inspection Act from accepting any gift from any person engaged in commerce, without regard to the intent of the donor or the donee. Subsequent judicial interpretation of this law, and a Memorandum of Understanding reached between the Department of Justice and the Department of Agriculture in July 1976, have limited somewhat the broad sweep of the law. It is now clear that a gift does not violate the statute if it is motivated by a personal or family relationship, or if it is trivial in value, such as soft drinks, coffee, pencils and coffee cups. However, the acceptance of non-trivial gifts of entertainment, transportation, lodging and meals by a Department of Agriculture official who has responsibilities under the Meat Inspection Act, from an entity that is subject to regulation by the Department of Agriculture, falls within the purview of the statute.

   In re Espy, Application to the Court Pursuant to 28 U.S.C. § 592(c)(1) for the Appointment of an Independent Counsel, Petition No. 94-2, at p.3 (D.C. Cir., filed Aug. 8, 1994) (emphasis added).Back

   4. See Ankenbrandt v. Richards, 504 U.S. 689, 707 (1992) (Blackmun, J., concurring) ("This Court has recognized that in the absence of a 'clearly expressed' intention to the contrary, the language of the statute itself is ordinarily 'conclusive.'"); Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980) (same); Community for Creative Non-Violence v. Reid, 490 U.S. 730, 739 (1989) ("The starting point for our interpretation of a statute is always its language.").Back

   5. The Supreme Court noted that Champlin, "after stating the basic test, . . . cited cases in which invalid statutory provisions had been severed despite the absence of any provision for severability." Jackson at 585, n.27 (citations omitted). See Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 686 (1987) ("In the absence of a severability clause, however, Congress' silence is just that -- silence -- and does not raise a presumption against severability." (citations omitted))Back

   6. The section has since been amended, in response to Hubbard v. United States, 514 U.S. 695 (1995) to assure that it applies to "any matter within the jurisdiction of the executive, legislative, or judicial branch . . ."Back

   7. In amending section 1001 to overcome the result in Hubbard, Congress clearly understood that decision had not altered the long-standing interpretation that § 1001 applied to the Executive Branch as a whole:

    In Hubbard, the Court held that Section 1001 did not apply to the judicial branch and by implication, to the legislative branch of Federal Government. The purpose of H.R. 3166 is to ensure that section 1001 applies to the judicial and legislative branches as well as the executive branch, thereby ensuring the integrity of legislative and juridical functions and proceedings. . . . [S]ection 2 [of the bill] establishes both judicial and legislative function exceptions, limiting the application of section 1001 so as to ensure that the judicial and legislative functions of the Federal judiciary and Congress are not undermine. . . . While the [Supreme] Court did not directly address the question of whether section 1001 still applies to Congress, in holding that section 1001 does not apply to the courts, Hubbard is widely interpreted as leaving section 1001 covering only the executive branch, leaving Congress outsede its scope.

   H.R. Rep. No. 104-680, 104th Cong., 2d Sess. 2-3 (1996) (emphasis added).Back

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