No. 99 - 15
In The
Supreme Court of the United States
October Term, 1998
Ronald H. Blackley,
Petitioner,
v.
United States of America,
Respondent.
on petition for a writ of certiorari to
the united states court of appeals
for the district of columbia circuit
BRIEF FOR THE UNITED STATES IN OPPOSITION
DONALD C. SMALTZ
Independent Counsel
(Counsel of Record)
CHARLES M. KAGAY
Chief Appellate Counsel
JOSEPH P. GUICHET
Associate Independent Counsel
WIL FRENTZEN
Associate Independent Counsel
Office of Independent Counsel
103 Oronoco Street, Suite 200
Alexandria, VA 22314
(703) 706-0010
QUESTIONS PRESENTED
1. Whether the court of appeals erred in concluding that, under the
facts presented, this prosecution was "related to" the Independent
Counsels original grant of jurisdiction, so as to give the Independent Counsel
jurisdiction to prosecute the petitioner.
2. Whether the court of appeals erred in finding harmless under the
facts of this case, the trial courts failure to instruct the jury that it had to
find a duty to disclose to convict under the concealment prong of 18 U.S.C. § 1001.
3. Whether the court of appeals erred in finding that the district
court did not abuse its discretion by departing from the Sentencing Guidelines based upon
the facts of this case.
TABLE OF CONTENTS
Page
Table of Contents
...............................................................................ii
Table of
Authorities........................................................................... iii
Opinions
Below..................................................................................1
Jurisdiction
........................................................................................1
Statement
.........................................................................................
1
Argument
.........................................................................................
8
I. The Jurisdiction Issue Does Not Merit
Certiorari Review .......... 8
II. The "Duty to Disclose"
Instruction Issue Does Not Merit
Certiorari Review
...................................................................11
III. The Sentencing Issue Does Not Merit
Certiorari Review ........14
Conclusion
......................................................................................16
Appendix A
....................................................................................1A
Appendix B
....................................................................................4A
TABLE OF AUTHORITIES
Cases:
Page
In re Espy, 80 F.3d 501 (D.C. Cir., Spec. Div. 1996)
..............3-4,6
Koon v. United States, 518 U.S. 81 (1996)
.......................8, 14, 15
Neder v. United States, __U.S. __, 119 S. Ct. 1827 (1999) ........12
Richardson v. United States, __U.S. __, 119 S. Ct. 1707 (1999) 12
Rose v. Clark, 478 U.S. 570, (1986)
............................................13
Sullivan v. Louisiana, 508 U.S. 275 (1993)
...........................12-13
United States v. Anzalone, 766 F.2d 676 (1st Cir. 1985) ............12
United States v. Booth, 673 F.2d 27 (1st Cir. 1981)
...................10
United States v. Busher, 817 F.2d 1409 (9th Cir. 1987)
.............10
United States v. Curan, 20 F.3d 560 (3d Cir. 1994)
..................12
United States v. Gaudin, 515 U.S. 506 (1995)
..........................12
United States v. Hernando Ospina,
798 F.2d 1570 (11th Cir.
1986) .......................................12
United States v. Irwin, 654 F.2d 671 (10th Cir. 1981) ...............12
United States v. Kember, 648 F.2d 1354 (D.C. Cir. 1980) ........10
United States v. Larson, 796 F.2d 244 (8th Cir. 1986) ..............12
United States v. Murphy, 809 F.2d 1427 (9th Cir. 1987) ...........12
United States v. Nersesian, 824 F.2d 1294 (2d Cir. 1987) .........12
United States v. Schwartz, 787 F.2d 257 (7th Cir. 1986) ...........10
United States v. Sun-Diamond Growers of California,
___U.S.,___,
119 S. Ct. 1402 (1999) ...........................15
United States v. Zalman, 870 F.2d 1047 (6th Cir. 1989) ............12
Statutes
and Rules:
5 U.S.C. App. ¶ 101 et seq.
..........................................................5
18 U.S.C. § 1001
..................................................4, 5, 6, 7, 11, 13
18 U.S.C. § 3571
........................................................................13
28 U.S.C. § 593(b)(3)
...............................................................6, 8
28 U.S.C. ¶ 594(a)(9)
...................................................................2
28 U.S.C. § 594(f)(1)
....................................................6, 7, 10, 11
U.S.S.G. § 2C1.2
........................................................................15
U.S.S.G. § 2C1.7(b)(1)(B)
....................................................15-16
U.S.S.G. § 2F1.1
................................................................5, 7, 14
U.S.S.G. § 2 F1. 1
(b) (2) (A) ........................................................5
No. 99 - 15
In The
Supreme Court of the United States
October Term, 1998
Ronald H. Blackley,
Petitioner,
v.
United States of America,
Respondent.
on petition for a writ of certiorari to
the united states court of appeals
for the district of columbia circuit
BRIEF FOR THE UNITED STATES IN OPPOSITION
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-20a) is reported at
167 F.3d 543.
JURISDICTION
The court of appeals issued its decision on January 26, 1999, and
denied petitioners timely petition for rehearing on March 31, 1999. The petition for
writ of certiorari was filed on June 28, 1999, and was placed on the Courts docket
on the same day. The jurisdiction of this Court is invoked under 28 U.S.C.
§ 1254(1).
STATEMENT
Independent Counsel Donald C. Smaltz, representing the United States,
is responsible for investigating allegations of unlawful activity by former Secretary of
Agriculture Alphonso Michael Espy. Petitioner, Ronald Blackley, was Espys Chief of
Staff at the United States Department of Agriculture ("USDA") during 1993 and
part of 1994. After a jury trial in the United States District Court for the District of
Columbia, petitioner was convicted on one count of submitting a false Executive Branch
Public Financial Disclosure Form while serving as Espys Chief of Staff and two
counts of making false statements to inspectors general concerning his receipt of over
$22,000 from persons having business before the USDA, all in violation of 18 U.S.C. §
1001. He was sentenced to 27 months imprisonment, to be followed by three years supervised
release. The court of appeals affirmed his convictions and sentence. Pet. App. 1a-20a.
1. On September 7, 1994, the D.C. Circuit Special Division for the
Purpose of Appointing Independent Counsel ("Special Division"), acting upon
request of the United States Attorney General, appointed Donald C. Smaltz independent
counsel to investigate allegations that then-Secretary of Agriculture Espy had accepted
things of value from persons and companies with business pending before the USDA. The
order of appointment granted the Independent Counsel
full power, independent authority, and jurisdiction to investigate to
the maximum extent authorized by the Independent Counsel Reauthorization Act of 1994
whether [Secretary Espy] has committed a violation of any federal criminal law
. . . relating in any way to the acceptance of gifts by him from organizations
or individuals with business pending before the Department of Agriculture.
Order Appointing Independent Counsel. Resp. App. 1A-2A. The Special
Division also granted the Independent Counsel full authority to:
[I]nvestigate other allegations or evidence of violations of any
federal criminal law . . . by any organization or individual developed during
the Independent Counsels investigation . . . and connected with or arising
out of that investigation.
[S]eek indictments and prosecute any organizations or individuals
involved in any of the matters described above, who are reasonably believed to have
committed a violation of any federal criminal law arising out of such matters . . . .
[F]ully investigate and prosecute the subject matter with respect to
which the Attorney General requested the appointment of independent counsel
. . . and all matters and individuals whose acts may be related to that subject
matter. . . .
Resp. App. 2A.
In April of 1996, the Special Division clarified the scope of this
jurisdictional grant by referring to the Independent Counsel as a "related
matter"
the jurisdiction and authority to investigate and prosecute any
violation of any federal law. . . related to any application, appeal, or request
for subsidy made to or considered by the United States Department of Agriculture, for
which Secretary of Agriculture Alphonso Michael (Mike) Espy and/or his Chief of Staff
Ronald Blackley intervened in the application, approval, or review process.
Resp. App. 4A. In so doing, the Special Division reviewed an extensive
factual record, wrote an opinion explaining its reasoning, and concluded that the matter
was "demonstrably related to the factual circumstances that gave rise to the Attorney
Generals initial investigation and request for appointment of an independent
counsel." In re Espy, 80 F.3d 501, 509 (D.C. Cir., Spec. Div. 1996).
2. The Independent Counsel subsequently obtained a three count
indictment against petitioner charging three violations of 18 U.S.C. § 1001. The
indictment alleged that while serving as Chief of Staff under Secretary Espy at the USDA,
petitioner received more than $22,000 from individuals regulated by the USDA, and then
lied about it on three separate occasions on his Executive Branch Public
Financial Disclosure Form, SF-278, (Count 1), and in two sworn statements to the
inspectors general of the USDA and the United States Agency for International Development
(Counts 2 and 3). Pet. App. 3a.
During a seven day jury trial, the government presented evidence that,
while serving as Chief of Staff under Secretary Espy at the USDA, petitioner received ten
checks totaling $21,025 from one individual who was regulated by, and received federal
subsidies from, the USDA. The evidence further showed that petitioner received one check
in the amount of $1,000 from another individual with business before the USDA shortly
after petitioner intervened in the USDAs determination of the amount of subsidies
that individual should receive.
Petitioner subsequently concealed his receipt of these funds on three
occasions. As a high-level executive branch official, petitioner was statutorily required
to submit annually a public financial disclosure form, or SF-278, which obligated
petitioner to disclose, inter alia, income and gifts received during that calendar
year. Govt. Ex. 34. Petitioner disclosed none of the $22,025 identified above. Govt. Ex.
33. Subsequently, two separate investigations of petitioner were undertaken by offices of
inspectors general. During both investigations, petitioner signed sworn statements
asserting, in substance, that after he entered government service he received no
remuneration of any kind from sources such as the two individuals above. Pet. App. 3a-4a.
At the close of the evidence, the district court charged the jury in
full accord with the statutory language of 18 U.S.C. § 1001. The court did not
identify as an element of the concealment prong of section 1001 the requirement that the
defendant be under an obligation to disclose the information he concealed. The jury
convicted petitioner on all three counts.
At sentencing, the district court found that it should sentence
petitioner under the fraud guideline, U.S.S.G. § 2F1.1, and after an enhancement for
more than minimal planning, U.S.S.G. § 2F1.1(b)(2)(A), arrived at a offense level of
eight. It then made an eight-level upward departure, relying on several factors not
considered by the guidelines. These factors included: (1) the defendant was a high-level
government official when he received monies from individuals with business before the
USDA; (2) he had been informed that he was not allowed to receive such payments; and (3)
he twice lied under oath about their receipt to investigators who were looking into his
conduct. Pet. App. 173a-174a, 184a-186a. The district court sentenced petitioner to 27
months imprisonment.
3. On appeal, petitioner argued inter alia that the Independent
Counsel lacked jurisdiction to prosecute him because the facts underlying his indictment
were not "related to" the Independent Counsels original jurisdictional
mandate. The court of appeals rejected petitioners argument. The court determined
that the authority granted to the Independent Counsel by 28 U.S.C. § 593(b)(3) and
his original mandate to look into matters "related to" the core areas of the
initial inquiry, allowed the Independent Counsel "to pursue crimes by the original
targets close associates in the field of activity under investigation, including
crimes that either are of the same sort as the originally specified set of crimes or are
ancillary to the commission or concealment of such crimes." Pet. App. 9a-10a. The
court then determined, based upon petitioners position, duties, alleged offenses,
and the connection of each to the allegations against Espy, that the petitioners
prosecution was "related to" the original mandate. Pet. App. 10a.
With respect to Count 1 only, petitioner also contended before the
appeals court that the Independent Counsel violated 28 U.S.C. § 594(f)(1) by failing to
follow a provision in the United States Attorneys Manual that supposedly discourages
prosecuting those who submit false financial disclosure forms under 18 U.S.C.
§ 1001. The court rejected this argument, concluding that the United States
Attorneys Manual does not confer substantive rights on petitioner, just as it does
not confer such rights to any individual charged by a United States Attorneys
Office. Pet. App. 11a-12a. Section 594(f)(1), the court concluded, is enforced through
other means. Id. at 12a.
Petitioner next asserted that his conviction must be reversed because
the trial court did not instruct the jury that in order to convict under the concealment
prong of section 1001, the jury had to first find that he owed a duty to disclose the
information he concealed. Id. at 15a. The court of appeals noted that some circuits
had held that a duty to disclose must be proven under this prong but questioned whether it
was an issue for the jury. Id. at 16a. The court, however, did not reach this
issue. Instead, it concluded that if any error occurred, it was harmless. The court
reasoned that, as to the false statement on the Executive Branch Public Financial
Disclosure Form (Count 1), it was inconceivable that the jury could have found petitioner
guilty without also finding that he had a duty to disclose. Id. at 16a-17a. As to
the false statements to inspectors general (Counts 2 and 3), the court determined that no
rational jury could have found petitioner guilty under the concealment prong of section
1001 without simultaneously finding that he made affirmatively false statements, violating
the second prong of section 1001, which was also charged in each count. Id. at 17a.
Lastly, petitioner challenged his sentence, arguing that the district
courts eight-level departure from the Sentencing Guidelines was improper. The court
of appeals rejected petitioners challenge and affirmed the sentence. The court
determined that the district courts departure was based on a mix of factors,
including: (1) the defendant was a high-level official when he received monies from
individuals regulated by the Agriculture Department; (2) he was informed that he was not
allowed to receive such payments; and (3) he twice lied under oath about their receipt.
Pet. App. 18a. The court of appeals concluded that the fraud guideline (U.S.S.G.
§ 2F1.1) did not adequately take these factors into account and the departure was,
therefore, within the district courts discretion allowed under Koon v. United
States, 518 U.S. 81, 98 (1996). Id. at 18a-19a.
ARGUMENT
Petitioner presents no matters meriting review by this court. None of
the issues presented by petitioner raise an important federal question or present a
circuit conflict, because in each instance the court of appeals correctly identified and
applied the controlling law. Petitioners arguments simply dispute the application of
that law to the peculiar facts of his case claims not worthy of review by this
Court. The Petition should therefore be denied.
I. The Jurisdiction Issue Does Not Merit Certiorari
Review
Petitioner first urges this Court to review the determination below
that the Independent Counsel had jurisdiction to prosecute him. Pet. 10-17. He identifies
nothing in the court of appeals decision meriting certiorari review.
1. Petitioners jurisdictional challenge is, at its core, simply a
request that this Court review the determination that, under the facts of this case, his
prosecution was "related" to the Independent Counsels original mandate.
Petitioner does not allege that the original grant of jurisdiction to the Independent
Counsel is unconstitutional or otherwise infirm. Rather, he claims only that the facts of
the present prosecution do not fit within the boundaries of that jurisdiction. Pet. 11-14.
This fact-based challenge does not warrant certiorari review.
Petitioner presented this same jurisdictional challenge to the courts
below. In response, the court of appeals identified the appropriate standard from 28
U.S.C. § 593(b)(3), concluding that the present indictment was valid if it
"related to" the subject matter with respect to which the Attorney General
requested the appointment of the independent counsel. Pet. App. 8a. The court then
undertook the requisite factual inquiry and determined that the underlying facts of
petitioners offense were sufficiently related and fell "squarely within the
limits" of the Independent Counsels jurisdiction. Pet. App. 10a. As the court
explained:
The position description for Blackley as Chief of Staff to Secretary
Espy characterized him as the Secretarys "alter ego,"; and he played that
role in the very activity running the Department in which
Espys alleged offenses were committed. His alleged non-disclosures were of sums
received from parties doing business with the Department, thus paralleling the Espy
allegations. Furthermore, concealment of such receipts, especially in the context of a
financial disclosure form intended to bring suspicious influences to the surface and in
response to questions of inspectors general, tends not only to prevent discovery of
underlying crimes such as receipts of bribes and gratuities, but also to reflect the
perpetrators consciousness of guilt in those receipts.
Id. Thus, the court concluded that
the relation between Blackleys § 1001 violations and the
core charges set out in the original order is tight enough to meet the "related
to" criterion of § 593(b)(3) and the [appointment] order itself.
Id. at 11a.
Petitioner does not contend that the court of appeals applied the wrong
standard; indeed, he concedes that the "related to" standard governs resolution
of his jurisdiction challenge. See Pet. 10-14 (arguing that his indictment does not
"relate to" the independent counsels original mandate). Rather, he simply
advances his own view that the facts underlying his prosecution are not sufficiently
related to the original jurisdictional mandate, a fact-based proposition rejected by the
D.C. Circuit and not meriting certiorari review.
Petitioner suggests that the court of appeals incorrectly applied the
"relatedness" test, insisting that "[t]he Circuit Court discusses the
meaning of the word relation in the context of the relationship between Espy
and Mr. Blackley, as opposed to the crime that is the subject of the mandate." See
Pet. 11-12. But the D.C. Circuit did not so limit its analysis. The court found a close
relationship between not only Espys and Blackleys positions, but the criminal
allegations levied against them as well. Specifically, the court concluded that
"[Blackleys] alleged non-disclosures were of sums received from parties doing
business with the Department, thus paralleling the Espy allegations." Pet. App. 10a.
Petitioner does not cite any legal authority to support his claim that
the circuit employed an erroneous "relatedness" test nor does he identify a
circuit split. This issue does not merit certiorari review.
2. Petitioner further asserts that the Independent Counsel violated
Department of Justice ("DOJ") policy in contravention of 28 U.S.C.
§ 594(f)(1). Pet. 14-17. His argument on this point is puzzling because it has
little to do with the court of appeals decision which did not address the merits of
this argument, but rather concluded that there is no substantive right to enforce DOJ
policies. Pet. App. 11a-13a. Petitioner could hardly suggest that this holding created a
circuit conflict as the circuit courts have uniformly held that the DOJ Manual confers no
enforceable rights. See, e.g., United States v. Booth, 673 F.2d 27,
30 (1st Cir. 1981); United States v. Schwartz, 787 F.2d 257, 267 (7th Cir. 1986); United
States v. Busher, 817 F.2d 1409, 1411 (9th Cir. 1987); United States v. Kember,
648 F.2d 1354, 1370 (D.C. Cir. 1980).
Petitioners argument that "[t]he Circuits opinion
cavalierly dismisses the statutory requirement that an independent counsel follow DOJ
policy . . .," Pet. 16, ignores the text of the court of appeals opinion. That
opinion quotes the relevant statutory language (28 U.S.C. § 594(f)(1)), Pet. App.
11a, reviews the statutes purpose and pertinent legislative history, id. at
12a, and concludes that the consequences of an independent counsels failure to
follow DOJ policy do not include reversal of a properly obtained conviction. Id. at
12a-13a. "Nothing in the . . . Ethics in Government Act suggests that the
defendant should be able to escape a sanction otherwise due." Id. Petitioner
presents no support for a contrary result.
Petitioner presents neither an important federal question nor a circuit
conflict. His request for certiorari review should be denied.
II. The "Duty to Disclose" Instruction Issue Does Not
Merit Certiorari Review
Petitioner asserts that the court of appeals erred in upholding his
convictions where the jury was not specifically instructed that it had to find a duty to
disclose before it could convict him under the concealment prong of section 1001. Pet.
17-21. The court of appeals held that, under the facts of this case, the district
courts refusal to give petitioners proposed jury instruction that it had to
find a duty to disclose, if error, was harmless. Pet. App. 16a-17a. Petitioner presents no
reason for review of this factual determination.
Notably, petitioner devotes almost three pages of his petition (Pet.
17-20) arguing two legal issues not addressed by the court of appeals. Citing numerous
circuit decisions, petitioner first argues that, although 18 U.S.C. § 1001 does not
explicitly require proof of a duty to disclose, a defendant can only be convicted under
the concealment prong of section 1001 if he had a duty to disclose the information he
concealed. See Pet. 18. This judicially crafted "duty to disclose"
requirement, petitioners argument continues, is a question of fact that must be
placed before the jury. Pet. 19-20, citing United States v. Gaudin, 515 U.S. 506
(1995), and Richardson v. United States, __U.S. __, 119 S. Ct. 1707 (1999).
But the court of appeals did not reach a contrary decision; indeed, it
did not reach either of these legal questions at all. Far from violating this Courts
earlier rulings, see Pet. 17-18, the court of appeals held simply that even if a
duty to disclose is an element of a concealment offense and such an instruction should
have been given to the jury, any error was harmless under the facts of this case. 16a-17a.
In other words, the court assumed arguendo that a duty to disclose instruction
should have been given. The courts decision, therefore, in no way conflicts with Gaudin
or Richardson.
Petitioner presents no reason for this Court to review the court of
appeals harmless-error determination. He concedes that the omission of an element
from a jury charge is subject to harmless-error analysis, id. (citing Neder v.
United States, __U.S. __ 119 S. Ct. 1827 (1999)) and makes no claim that the court of
appeals applied the wrong standard in conducting its harmless-error analysis. Instead,
petitioner advances only his personal dissatisfaction with the courts factual
finding, asserting that the court of appeals could not find the error harmless because
"the OIC presented no evidence that Mr. Blackley had a duty to disclose any of the
checks he received in 1993 on his SF 278 Form." Pet. 21. But this assertion is
sharply refuted by the record.
The government presented ample evidence that petitioner was under a
duty to disclose the information he concealed on his Executive Branch Public Financial
Disclosure Form. Indeed, the SF-278 itself, Govt. Ex. 34A, expressly provides at its
outset:
Title I of the Ethics in Government Act of 1978, as amended (the
Act), 5 U.S.C. App. § 101 et seq., requires the reporting of this
information. . . . Knowing and willful falsification of information required to be filed
by section 102 of the Act may . . . subject you to criminal prosecution and sentencing
under 18 U.S.C. §§ 1001 and 3571.
This form excruciatingly details what is and what is not required to be
reported. Id. Pertinent to the present case, the SF-278 required petitioner to
disclose, inter alia, non-investment income exceeding $200 from any one source and
gift payments aggregating $100 or more in value from any one source. Id. at 6, 8-9.
In addition, the government presented witness testimony elucidating petitioners
obligation to accurately disclose this information. 11/21/97 Tr. at 76-96.
Petitioners factual challenge to the court of appeals
harmless error determination does not warrant certiorari review. See, e.g., Rose
v. Clark, 478 U.S. 570, 584 (1986) (noting that although Court has authority to
perform harmless-error review, it "do[es] so sparingly.")
III. The Sentencing Issue Does Not Merit Certiorari Review
Petitioners final argument for certiorari, Pet. 21-30, amounts to
dissatisfaction with the court of appeals affirmance of the district courts
upward departure in imposing sentence and the discretion permitted district courts under Koon
v. United States, 518 U.S. 81 (1996). Both the district court and the court of appeals
identified and used the correct legal standards, as set out in Koon, in setting and
affirming the sentence imposed, and petitioner does not demonstrate to the contrary.
Petitioners only challenge, therefore, is that he disagreed with the district
courts finding that departure was warranted on the facts presented by this
particular case. Because petitioner fails to point out an important federal question of
law or a circuit conflict raised by the D.C. Circuits affirmance of his sentence, he
falls woefully short of requiring review of that sentence by this Court.
The weakness of petitioners argument is plain from one simple
observation his petition does not even address the Circuits determination
that the fraud guidelines "explicitly contemplate upward departures in circumstances
that fall outside the main core" of general fraud offenses. Pet. App. 18a, citing
U.S.S.G. § 2F1.1, Application Notes 10, 13. Thus, petitioners reliance on Koons
assertion that "departures based on grounds not mentioned in the Guidelines
will be highly infrequent," Pet. 22 (emphasis added), is misplaced. Because the fraud
guidelines recognize and even encourage departures under certain circumstances, it was
well within the district courts broad discretion to depart, Koon 518 U.S. at
95, and no review of the affirmance of that decision is necessary. Petitioner cites no
authority to the contrary.
Ignoring this dispositive point, petitioner focuses on the district
courts inability to set sentencing policy. Pet. 24-26. Of course, the district court
did not purport to set policy; it fixed a sentence in accordance with the facts of the
particular case before it. Neither the district court nor the court of appeals asserted
that any factor should always be a basis for departure in fraud cases. Under Koon,
case-by-case sentencing decisions such as in this case are owed great deference because of
the district courts experience in dealing with factual circumstances presented in a
multitude of various cases. 518 U.S. at 98-99. If petitioner is correct that departing in
a particular case somehow improperly invades the Sentencing Commissions authority by
setting "policy" for similar cases in the future, then no sentencing court could
ever depart. Petitioners argument therefore entirely misses the point of Koon
and raises no meritorious issue.
Finally, petitioner contends that the amount of the departure, eight
levels, compels review by this Court. He does not explain, however, how such a decision
applying the facts of this particular case to the guidelines to determine an
appropriate departure raises an important federal question or creates a circuit
conflict. The district court and court of appeals observed that the analogous provision of
U.S.S.G. § 2C1.2 (governing gratuity offenses) provides an eight level increase for
offenses involving officials holding "a high-level decision-making or sensitive
position." Although petitioner argues against the appropriateness of such an
adjustment in light of the Courts decision in United States v. Sun-Diamond
Growers of California, -- U.S. --, 119 S. Ct. 1402 (1999), he ignores the fact that
such an adjustment is also provided by another analogous provision of the Sentencing
Guidelines, U.S.S.G. § 2C1.7(b)(1)(B) (adding eight levels for fraud involving
deprivation of honest services by public officials). Petitioner also fails to note that
the amount of the district courts departure was predicated on more than simply
petitioners receipt of money from individuals regulated by USDA while he held a
high-level public office; the district court also cited as reasons for the amount of
departure that: (1) petitioner was informed that he was not allowed to receive the
payments; and (2) petitioner lied about receipt of the payments twice while under oath.
Pet. App. 18a. The district court considered all of these factors in combination when
fixing the amount of departure and the court of appeals, applying the applicable law,
concluded that such was not an abuse of discretion. These decisions do not implicate
important questions of federal law, nor do they create circuit conflicts. Review by this
Court is therefore unnecessary.
CONCLUSION
The petition for writ of certiorari presents no circuit conflicts to
resolve, and no important questions of federal law that need answering. It should be
denied.
Respectfully submitted,
DONALD C. SMALTZ
Independent Counsel
CHARLES M. KAGAY
Chief Appellate Counsel
JOSEPH P. GUICHET
Associate Independent Counsel
WIL FRENTZEN
Associate Independent Counsel
July, 1999
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Division for the Purpose of
Appointing Independent Counsels
Ethics in Government Act of 1978, As Amended
In re: Alphonso Michael (Mike) Espy Division No. 94-2
Order Appointing Independent Counsel
Before: SENTELLE, Presiding, and BUTZNER and SNEED, Senior Circuit
Judges.
Upon consideration of the application of the Attorney General pursuant
to 28 U.S.C. § 592(c)(1)(A) for the appointment of an independent counsel with authority
to exercise all the power, authority and obligations set forth in 28 U.S.C. § 594, to
investigate whether Alphonso Michael (Mike) Espy, Secretary of Agriculture, has committed
a violation of any federal criminal law, other than a Class B or C misdemeanor or
infraction, relating in any way to the acceptance of gifts by him from organizations or
individuals with business pending before the Department of Agriculture; it is
ORDERED by the Court in accordance with the authority vested in it by
28 U.S.C. § 593(b) that Donald C. Smaltz, Esquire, of the Pennsylvania and
California bars, with offices at Smaltz & Anderson, 333 South Grand Ave., Suite
3580, Los Angeles, California 90071, be and is hereby appointed Independent Counsel
with full power, independent authority, and jurisdiction to investigate to the maximum
extent authorized by the Independent Counsel Reauthorization Act of 1994 whether Alphonso
Michael (Mike) Espy, Secretary of Agriculture, has committed a violation of any federal
criminal law, other than a Class B or C misdemeanor or infraction, relating in any way to
the acceptance of gifts by him from organizations or individuals with business pending
before the Department of Agriculture.
The Independent Counsel shall have jurisdiction and authority to
investigate other allegations or evidence of violation of any federal criminal law, other
than a Class B or C misdemeanor or infraction, by any organization or individual developed
during the Independent Counsels investigation referred to above and connected with
or arising out of that investigation.
The Independent Counsel shall have jurisdiction and authority to
investigate any violation of 28 U.S.C. § 1826, or any obstruction of the due
administration of justice, or any material false testimony or statement in violation of
federal criminal law, in connection with any investigation of the matters described above.
The Independent Counsel shall have jurisdiction and authority to seek
indictments and to prosecute any organizations or individuals involved in any of the
matters described above, who are reasonably believed to have committed a violation of any
federal criminal law arising out of such matters, including organizations or individuals
who have engaged in an unlawful conspiracy or who have aided or abetted any federal
offense.
The Independent Counsel shall have all the powers and authority
provided by the Independent Counsel Reauthorization Act of 1994. It is
FURTHER ORDERED by the Court that the Independent Counsel, as
authorized by 28 U.S.C. § 594, shall have prosecutorial jurisdiction to fully investigate
and prosecute the subject matter with respect to which the Attorney General requested the
appointment of independent counsel, as hereinbefore set forth, and all matters and
individuals whose acts may be related to that subject matter, inclusive of authority to
investigate and prosecute federal crimes (other than those classified as Class B or C
misdemeanors or infractions) that may arise out of the above described matter, including
perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses.
It further appearing to the Court in light of the Attorney
Generals motion heretofore made for the authorization of the disclosure of her
application for this appointment pursuant to 28 U.S.C. § 592(e) and of the ongoing public
proceedings and interest in this matter, that it is in the best interests of justice for
the identity and prosecutorial jurisdiction of the Independent Counsel to be disclosed.
IT IS SO ORDERED.
Per Curiam For the Court:
Ron Garvin, Clerk
APPENDIX B
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Division for the Purpose of
Appointing Independent Counsels
Ethics in Government Act of 1978, As Amended
In re: Alphonso Michael (Mike) Espy Division No. 94-2
UNDER SEAL
Before: SENTELLE, Presiding, and BUTZNER and FAY, Senior
Circuit Judges
ORDER
Upon consideration of the Application for Referral of a Related Matter,
filed under seal on January 25, 1996, the Opposition of the United States to the
Application for Referral, and the Reply in Further Support of the Application for
Referral, it is
HEREBY ORDERED that investigative and prosecutorial jurisdiction
over the following matter be referred to the Independent Counsel Donald C. Smaltz and to
the Office of the Independent Counsel as a related matter pursuant to 28 U.S.C. § 594(e):
The jurisdiction and authority to investigate and prosecute any
violation of any federal law, other than a Class B or C misdemeanor, by any organization
or individual, related to any application, appeal, or request for subsidy made to or
considered by the United States Department of Agriculture, for which Secretary of
Agriculture Alphonso Michael (Mike) Espy and/or his Chief of Staff Ronald Blackley
intervened in the application, approval, or review process.
It is
FURTHER ORDERED that the effect of this order be stayed for 10 days
to allow the Attorney General to seek review of this order, if she so chooses.
Per Curiam
For the Court:
Mark J. Langer, Clerk
By
Marilyn R. Sargent
Chief Deputy Clerk
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reproduced.
Official copies are available from the Office of Independent Counsel
or the Clerk of the court where the document was filed.
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