ORAL ARGUMENT SCHEDULED FOR MARCH 24, 2000

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

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No. 99-3153

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Defendant-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

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UNITED STATES OF AMERICA

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DONALD C. SMALTZ

TABLE OF CONTENTS

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES i

TABLE OF CONTENTS ii

TABLE OF AUTHORITIES iv

GLOSSARY OF TERMS vii

STATEMENT OF JURISDICTION 1

STATEMENT OF ISSUES 1

PERTINENT STATUTES AND RULES 2

STATEMENT OF THE CASE 3

STATEMENT OF FACTS 5

I. DEFENDANT'S CRIMINAL CONDUCT 5

II. DEFENDANT'S NEW TRIAL MOTION 9

SUMMARY OF THE ARGUMENT 16

ARGUMENT 17

I. THE STANDARD OF REVIEW 17

II. SCHAFFER FAILED TO MEET ANY OF THE REQUIREMENTS FOR A NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE 18

III. SCHAFFER DID NOT ACT IN A TIMELY MANNER 19

A. Schaffer's "Newly Discovered Evidence" Was Not Discovered after Trial, and the District Court Therefore Lacked Jurisdiction to Grant His Motion for New Trial 19

B. Schaffer Did Not Act Diligently to Procure the "Newly Discovered" Evidence 29

IV. THE EVIDENCE ADDUCED DOES NOT MERIT A NEW TRIAL 36

A. Part of the Evidence the District Court Replied Upon Was Cumulative 39

B. The Remainder of the Evidence the District Court Relied Upon Was Immaterial 41

C. Espy's Testimony Would Not Probably Produce an Acquittal in a New Trial 44

Cases

Butler v. West, 164 F.3d 634 (D.C. Cir. 1999) 17

*Chirino v. NTSB, 849 F.2d 1525 (D.C. Cir. 1988) 21, 22

Government of the Virgin Islands v. Lima, 774 F.2d 1245 (3rd Cir. 1985) 22

In re United States, 598 F.2d 233 (D.C. Cir. 1979) 19

In re United States, No. 99-3146 (D.C. Cir. Nov. 10, 1999) 4

INS v. Abudu, 485 U.S. 94 (1988) 18

Jones v. United States, 393 F.2d 491 (10^th Cir. 1968) 32

*Thompson v. United States, 188 F.2d 652 (D.C. Cir. 1951) 18, 21, 36, 40, 41

United States v. Agurs, 427 U.S. 97 (1976) 44

United States v. Alvarado, 898 F.2d 987 (5th Cir. 1980) 22

United States v. Andrade, 94 F.3d 9 (1st Cir. 1996) 18

United States v. Bales, 813 F.2d 1289 (4th Cir. 1987) 22

United States v. Bryant, 117 F.3d 1464 (D.C. Cir. 1997) 18

United States v. Castano, 756 F.Supp. 820 (S.D.N.Y. 1991) 33

United States v. Cotner, 657 F.2d 1171 (10^th Cir. 1981) 26

*United States v. Dale, 991 F.2d 819 (D.C. Cir. 1993) 4, 22

United States v. Dukes, 727 F.2d 34 (2nd Cir. 1984) 22

*United States v. Gloster, 185 F.3d 910 (D.C. Cir. 1999) 24, 25

United States v. Gordils, 982 F.2d 64 (2d Cir. 1992) 18

United States v. Haldeman, 559 F.2d 31 (D.C. Cir. 1976) 35

United States v. Hemphill, 544 F.2d 341, 344 (8th Cir. 1976) 17

United States v. Hoffa, 382 F.2d 856 (6^th Cir. 1967) 30

United States v. Kamel, 965 F.2d 484 (7^th Cir. 1992) 33, 34

United States v. Kulczyk, 931 F.2d 542 (9th Cir. 1991) 34

United States v. Linwood, 142 F.3d 418 (7th Cir. 1995) 18

United States v. McKinney, 952 F.2d 333 (9th Cir. 1991) 23

United States v. Montilla-Rivera, 115 F.3d 1060 (1^st Cir. 1997) 23, 24

United States v. Oliver, 683 F.2d 224 (7th Cir. 1982) 33

*United States v. Ortiz, 136 F.3d 161 (D.C. Cir. 1998) 24, 25

United States v. Ouimette, 798 F.2d 47 (2^nd Cir. 1986) 26

United States v. O'Keefe, 128 F.3d 885 (5th Cir. 1997) 18

United States v. Quintanilla, 193 F.3d 1139 (10th Cir. 1999) 23, 32

United States v. Ramos, 179 F.3d 1333 (11th Cir. 1999) 23

United States v. Ryan, 153 F.3d 708 (8th Cir. 1998), cert. denied, ___ U.S. ___, 119 S.Ct. 1454 (1999) 23

*United States v. Schaffer, 183 F.3d 833 (D.C. Cir. 1999) 3-9, 29, 47, 48

United States v. Sensi, 879 F.2d 888 (D.C. Cir. 1989) 22, 44

United States v. Smith, 331 U.S. 469 (1947) 19

United States v. Spencer, 4 F.3d 115 (2d Cir. 1993) 44

United States v. Theodosopolous, 48 F.3d 1438 (7^th Cir. 1995) 32

United States v. Torres, 115 F.3d 1033 (D.C. Cir. 1997) 17

United States v. Troutman, 814 F.2d 1428 (10th Cir. 1987) 18

United States v. Turner, 995 F.2d 1357 (6th Cir. 1993) 18

United States v. Turns, ___ F.3d ___, 2000 WL 3856 (6th Cir. 2000) 23

United States v. Woods, 169 F.3d 1077 (7th Cir. 1999) 23

United States v. Wright, 625 F.2d 1017 (1^st Cir. 1980) 34

United States v. Zagari, 111 F.3d 307 (2d Cir. 1997) 44

Statutes

18 U.S.C. § 201(c) 3

18 U.S.C. § 3731 3

21 U.S.C. § 622 3

Rules

Fed. R. Crim. P. 33 15, 17, 19-21, 23-26

Miscellaneous

Black's Law Dictionary 322 (6th ed. 1991) 20

Meriam Webster's Collegiate Dictionary 331 (10th ed. 1996) 20

GLOSSARY OF TERMS

GX -- Government Trial Exhibit

GXEH -- Government Hearing Exhibit

Tr. -- Transcript

R. -- District Court Record Entry

J.A. -- Joint Appendix

MIA -- Meat Inspection Act

USDA -- United States Department of Agriculture

APF -- Arkansas Poultry Federation

The district court had jurisdiction over this federal criminal prosecution pursuant to 18 U.S.C. § 3231. This Court has jurisdiction over this appeal of a post-verdict order granting a motion for new trial pursuant to 18 U.S.C. § 3731. The order appealed from was entered on December 3, 1999; this appeal was noticed the same date.

STATEMENT OF ISSUES

1. Is evidence of which defendant was aware at the time of trial "newly discovered evidence" within the meaning of Fed. R. Crim. P. 33 merely because, at the time of trial, defendant was informed that the witness would have invoked a privilege against testifying?

2. Does a criminal defendant exercise the diligence required by Fed. R. Crim. P. 33 for a new trial motion based on newly discovered evidence where, although he is aware of the evidence at the time of trial, he waits until fifteen months after trial, following two other new trial motions and an appeal, to bring the evidence to the court's attention?

3. Is evidence that merely repeats an admission made by a government witness at trial, or that goes to the intent of a third party rather than the intent of the defendant, of sufficient weight to merit a new trial under Fed. R. Crim. P. 33?

21 U.S.C. § 622. Bribery of or gifts to inspectors or other officers and acceptance of gifts:

Any person, firm, or corporation, or any agent or employee of any person, firm, or corporation, who shall give, pay, or offer, directly or indirectly, to . . . any other officer or employee of the United States authorized to perform any of the duties prescribed by this subchapter or by the rules and regulations of the Secretary any money or other thing of value, with intent to influence said . . . officer or employee of the United States in the discharge of any duty provided for in this subchapter shall be deemed guilty of a felony, and, upon conviction thereof, shall be punished by a fine not less than $5,000 nor more than $10,000 and by imprisonment not less than one year nor more than three years.

Federal Rule of Criminal Procedure 33. New Trial:

On a defendant's motion, the court may grant a new trial to that defendant if the interests of justice so require. . . . A motion for new trial based on newly discovered evidence may be made only within three years after the verdict or finding of guilty. . . . A motion for a new trial based on any other grounds may be made only within 7 days after the verdict or finding of guilty or within such further time as the court may fix during the 7 day period.

STATEMENT OF THE CASE

The United States appeals, pursuant to 18 U.S.C. § 3731, from the December 3, 1999 Order of the United States District Court for the District of Columbia (Robertson, J.) granting defendant-appellee Archibald R. Schaffer III a new trial.

The jury verdict discarded by the district court's order granting a new trial was previously addressed by this Court in United States v. Schaffer, 183 F.3d 833 (D.C. Cir. 1999); (10J.A.154). The statement of the case leading up to this Court's decision is recited at 183 F.3d 835-36, 838-39.

Defendant-appellee Archibald R. Schaffer, III and a co-defendant, Jack L. Williams, were indicted on several counts for providing things of value to Secretary of Agriculture Alphonso Michael Espy from Tyson Foods, Inc., a large meat and poultry producer. 3J.A.57. On June 26, 1998, a jury found Schaffer guilty on one count of violating the Meat Inspection Act (21 U.S.C. § 622) for providing Espy with the benefits of a lavish party in Russellville, Arkansas, and one count of providing unlawful gratuities (18 U.S.C. § 201(c)) for providing Espy with four tickets to a 1993 Presidential inaugural celebration.

On September 22, 1998, the district court granted Schaffer a judgment of acquittal on both counts based on insufficient evidence. 5J.A.115. In an opinion entered July 23, 1999, as amended on September 10, 1999, this Court affirmed the judgment of acquittal as to the gratuity count (inaugural celebration), but reversed as to the Meat Inspection Act count (Russellville party). Schaffer, 183 F.3d 833. On August 26, 1999, this Court ordered expedited issuance of the mandate, and the mandate issued that day. On October 4, 1999, the district court set sentencing for November 9, 1999 and ordered a Presentence Investigation Report prepared.

On October 13, 1999, Schaffer filed his third motion for new trial in the district court. 13J.A.195. His latest motion was based on the purported "unavailability" of two witnesses -- his co-defendant Jack Williams, and former Secretary Espy -- during his trial because both would have refused to testify if called as witnesses. On November 4, 1999, the district court held that under United States v. Dale, 991 F.2d 819 (D.C. Cir. 1993), Williams' testimony could not constitute newly discovered evidence so as to warrant a new trial. 16J.A.249. But the district court concluded that Espy's testimony, depending upon its substance, could warrant a new trial, and it set an evidentiary hearing for November 12, 1999 to make this determination. Id.

On November 9, 1999, the government petitioned this Court for a writ of mandamus directing the district court to cancel the hearing and deny Schaffer's new trial motion as untimely. This Court denied the petition the following day without addressing the merits. In re United States, No. 99-3146 (D.C. Cir. Nov. 10, 1999).

The trial court then proceeded with the evidentiary hearing on November 12, 1999. At the hearing, former Secretary of Agriculture Espy provided testimony regarding his interaction (or lack thereof) with defendant Schaffer and his recollection of the events surrounding Espy's attendance at the Russellville party. 19J.A.260. Schaffer's counsel also made a proffer during the hearing regarding what he knew Espy would testify and when, and about the extent of his efforts to secure Espy's testimony at trial. 20J.A.361.

On December 3, 1999, the district court granted Schaffer's motion for new trial, 2J.A.44, and the government noticed its appeal the same day. On December 9, 1999, the government filed a motion for summary reversal. This Court denied that motion on January 4, 2000, without addressing the merits.

STATEMENT OF FACTS

DEFENDANT'S CRIMINAL CONDUCT

The facts underlying this prosecution are stated in this Court's earlier opinion, 183 F.3d at 836-39, 842-45, and 847-50, and are recited here only briefly. Defendant-appellee Schaffer was the Director of Media, Public and Governmental Affairs for Tyson Foods, Inc., a meat and poultry producing company heavily regulated by, and significantly affected by decisions of, the United States Department of Agriculture ("USDA"). In this position, Schaffer participated in lobbying Secretary of Agriculture Espy on behalf of Tyson Foods and in disseminating the company's views with respect to pending and ongoing regulatory matters. 183 F.3d at 836.

During the relevant period, the USDA was at various stages of the process of developing and implementing food safety initiatives that would seriously impact the business of Tyson Foods. Id. at 837. In early January of 1993, in response to an outbreak of food poisoning that left three children dead and several hundred people ill, the USDA accelerated its implementation of a new series of initiatives the Department had been developing to enhance the safety of meat and poultry products. Id. at 836, 837.

On February 5, 1993, a USDA senior official announced to Congress the USDA's plan which entailed a "Two-Track" approach to eliminating pathogens in meat and poultry products. Id. at 837. Track 1 aimed at maximizing the performance of the then-existing inspection system, while Track 2 called for a revolutionary redesign of food safety programs. Id. Schaffer and other representatives of the meat and poultry industry received advance notice of the USDA's plan during a meeting with Secretary Espy the day before it was presented to Congress. Id. at 844.

The USDA worked throughout 1993 on two initiatives resulting from the "Two-Track" plan that were of great interest to Tyson Foods. Id. at 837, 848-49. First, the USDA refined and implemented a plan for pathogen reduction on meat and poultry products, an effort which eventually became known as "zero tolerance." Id. at 838, 849. Second, the USDA worked on developing a consumer education program, and as a part of that program, a set of regulations that would mandate the use of "safe handling labels" on all not-ready-to-eat meat and poultry products. Id. at 838. These labels would contain care and handling instructions designed to eliminate the risk posed by food-borne pathogens. Id. Throughout 1993, Schaffer and other officials at Tyson Foods had extensive communications with the Secretary and his staff in which they sought to persuade the USDA to shift a pending policy in one direction or another. Id. at 849-50.

During this same period of time, Schaffer participated in providing items of value to Secretary Espy. Id. at 836. Specifically, as to the count under review here, Schaffer participated in providing Secretary Espy the benefits of a lavish, weekend-long birthday party at the Tyson Foods Management Development Center ("Tyson Complex") in Russellville, Arkansas on May 14 - 16, 1993 ("Tyson party" or "the party"). Id. at 847-48. The evidence showed that Don Tyson, the Chairman of the Board of Tyson Foods, sent Secretary Espy an invitation to the party with a hand-written note that informed Espy both of a pending invitation to an Arkansas Poultry Federation ("APF") meeting scheduled to overlap with the party and of Tyson's intent to provide Espy transportation to and from Russellville on the company jet. Id. at 847. Don Tyson provided a copy of this letter to Schaffer who took over making the arrangements to secure Espy's attendance. See id. at 847-48.

Five days later, on April 26, 1993, the APF President circulated a memorandum to members of the APF Board stating that Secretary Espy would be in Arkansas on May 15th and inviting the members to meet with the Secretary, "clearly implying that Espy already intended to attend the Russellville party before being invited to the APF meeting." Id. at 847. That same day, the Senior Vice President of the APF prepared a letter inviting Secretary Espy to speak to the APF on May 15th in Russellville. Id. Rather than sending the invitation letter directly to Espy, however, the Senior Vice President sent it by overnight delivery to Schaffer, who then arranged for its mailing and faxing to Espy. Id. The APF meeting, at which Secretary Espy ultimately agreed to speak, provided an official reason for Espy to be in Russellville the weekend of the Tyson party. Id.

Schaffer also communicated with the USDA travel coordinator to make arrangements for Secretary Espy's attendance at the APF meeting. Id. In response to the travel coordinator's logistical questions regarding Espy's official itinerary, Schaffer stated that the all-day APF meeting would have about 150 attendees, that he would meet Espy at the airport and escort him to the meeting, that it would be followed by a dinner meeting with Senator Pryor to which Espy was invited, that Espy would be overnighting at the Tyson Complex, that the Secretary would be transported back to Washington on an APF charter plane, and that other named passengers would be on the plane. Id. at 847-48.

In contrast to the information Schaffer provided to the USDA travel coordinator, the APF meeting was attended by 15 to 20 people. Id. at 848. At its conclusion, Schaffer and other Tyson Foods officials drove Espy to the weekend-long party where his girlfriend, Patricia Dempsey, was already waiting courtesy of Tyson Foods. Id. at 837, 848. On Sunday morning a Tyson Foods corporate jet, pursuant to Schaffer's arrangements, flew Espy and Dempsey back to Washington. Id. at 848.

Schaffer kept up this facade after the party as well. When the USDA travel coordinator requested that Schaffer provide bills for the Secretary's travel and lodging so the USDA could reimburse these costs, Schaffer directed the Senior Vice President of the APF to create phony invoices and allowed the APF to receive payment for costs incurred by Tyson Foods to further conceal Tyson Foods' role in bringing Espy to Russellville. Id. at 850.

Despite his essential involvement, Schaffer, when subsequently questioned by an FBI agent, denied knowing who had arranged for the Secretary and his girlfriend to attend the Russellville party and to stay at the Tyson Complex. Id. at 848. He further asserted that APF officials, rather than anyone at Tyson Foods, had contacted Espy and arranged his attendance at the APF meeting. Id.

II. DEFENDANT'S NEW TRIAL MOTION

At no time before or during trial did Schaffer advise the district court or the government that he wanted to call Secretary Espy as a witness at trial. Schaffer did not move for a continuance, subpoena Espy to testify, or object during trial that he was being deprived of a fair trial.

Following the jury's finding of guilt, Schaffer filed timely motions for judgment of acquittal and for new trial, but did not argue in either motion that he was deprived of a fair trial because he could not call Espy. 6J.A.116-32; R.217.

After Espy's acquittal in December of 1998, and while Schaffer's appeal was pending before this Court, Schaffer filed a second motion for new trial purportedly based on evidence Schaffer first learned of during Espy's trial. Although Espy had by then been acquitted of all charges, Schaffer did not claim that he wished to call Espy or that his inability to do so deprived him of a fair trial. 8J.A.134-52.

Even after this Court reinstated, in part, the jury verdict, Schaffer still made no mention to the court or the government that he had wanted to call Espy at trial but could not. On September 13, 1999, in response to a government motion to set a date for sentencing, Schaffer argued that the sentencing date should be set well in the future because "counsel for Mr. Schaffer have not yet determined whether matters first revealed in the record of the trial of former Secretary Espy warrant the filing of . . . a motion [based upon newly discovered evidence.]" 12J.A.192. Of course, Espy did not testify at his own trial.

Less than a month before sentencing, Schaffer claimed -- for the very first time and without any support in the record -- that he had wanted to call Secretary Espy at trial but that he had been unable to do so because Espy would have refused to testify while charges were pending against him. 13J.A.195-214. Espy's testimony, he argued, was "newly discovered evidence" meriting a new trial. Over the government's objections, the district court ordered an evidentiary hearing on the motion. 16J.A.249-53.

At the hearing, Schaffer called former Secretary of Agriculture Espy as a witness. Espy testified that, if he had been subpoenaed to testify at trial, he would have invoked his privilege against self-incrimination. 19J.A.270. However, he confirmed that his counsel had never informed him that Schaffer wanted him to testify at trial. 19J.A.349-50.

Concerning the events of the Russellville weekend, Espy did not recall meeting Schaffer in connection with that weekend, 19J.A.272, and admitted that he had no communications with Schaffer regarding the birthday party and had no "knowledge whatsoever about Archie Schaffer's involvement [in getting him to Russellville]," 19J.A.298. He "guess[ed]" that the invitation went through the "normal process, and it was accepted . . . ." 19J.A.274.

Espy testified that he considered it a "courtesy" to Don Tyson and John Tyson to attend the party. 19J.A.277. Also, "it was an opportunity for [Espy] to have some recreational opportunity. It was a party." Id.

Espy testified that the party was, in his mind, of "secondary importance" to the APF speech. Id. However, he could not explain why all of his contemporaneous notes reflected an interest in the Tyson party rather than the APF speech. 19J.A.302-05. In Espy's personal calendar for the dates of May 15 and 16, 1993 -- following references to the two Mississippi university appearances -- Espy had noted "Tyson" (rather than "APF") for the afternoon of May 15 and the morning of May 16. 19J.A.302-03; 24J.A.550. His hand-written to do list, under the date 4/27/93, noted, inter alia: "Schedule b-day party -- Ark." not "schedule APF speech." 19J.A.304; 24J.A.543. When presented with these contemporaneous notes, Espy was unable to explain them, and stated: "[t]here's no rhyme or reason really in what I put on the sheet that day. So I see it here. It's here. I don't know why it's here, but it's here." 19J.A.305.

With respect to whether the APF event served as a "cover" for Espy to attend the party, Espy could only opine:

Q: Did you regard the meeting, your appearance at the [APF] meeting on May 15, 1993, as any kind of excuse or cover to attend the birthday party given by Don Tyson that night?

A: I thought that meeting was wholly legitimate. I accepted - in my opinion, it was a legitimate event. I had spoken to poultry groups before in other states. This was another poultry group in another state. I accepted it.

Certainly, in my opinion, it was certainly not a cover or anything for any party. No.

19J.A.282 (emphasis added).

Espy admitted that there were inconsistencies between what his trip itinerary disclosed and what actually occurred, i.e., there were not "approximately 150" attendees at the meeting, Espy did not need to stay until that evening to attend an "Arkansas Poultry Federation dinner with Senator Pryor," and Ms. Dempsey was among the passengers for the return flight to Washington, D.C. 19J.A.306-09; 24J.A.525-27 (itinerary). Espy asserted that he did not provide the false information on the itinerary and did not know who did. 19J.A.309-10.

Espy denied that his attendance at the birthday party had been used to influence his actions as Secretary of Agriculture, stating:

No. Do I recall some official business? Nothing like that was intimated to me or literally spoken to me at all. It was a party. I considered that to be a party. But I considered the event to be a legitimate event and the principal event that caused my being there.

19J.A.282. Espy testified that during the party, there were no discussions specifically regarding Tyson Foods or USDA policies, but did admit that there may have been discussions "concerning the business or interests of the poultry industry." 19J.A.285.

While Espy could not recall the subject of his speech to the APF, he admitted that the "talking points" prepared by his staff for his speech included specific references that: "USDA was launching a war against pathogens," and "[b]y August 15, USDA will propose rules mandating that meat and poultry labels carry handling and cooking instructions." 19J.A.327-28. Espy acknowledged that safe handling labeling was an issue he had been very concerned about, that time had been of the essence on that issue, which he "wanted to speed . . . up," and that it likely was a subject of his speech to the APF. 19J.A.329. Furthermore, from Espy's legal pads, he recognized his "internalization" of those "talking points" for his speech to the APF. 19J.A.331; 24J.A.546 (legal pad). Espy stated that his internalization included the following notations: "enforce zero tolerance standard," and "August 15, meat handling labels." 19J.A.331, 332. Espy confirmed that he considered these to be "serious issues" at that time, and he expected that he would have spoken about those issues to the APF, with Schaffer and others from Tyson Foods in attendance. Id. Espy further admitted that, while speaking to the APF group (including Schaffer and Don Tyson) about those issues, he knew that "as soon as [he] left that speech, [he] was going to a Tyson Foods' birthday party . . . [he] knew that [his] girlfriend was waiting there for [him]," and he knew that she had been provided transportation. 19J.A.333.

Perhaps most importantly, Espy confirmed that, as of February 1993, he had made the industry aware that USDA was planning on implementing safe handling labels through an emergency interim rule. 19J.A.345-47. In so doing, he dealt a death blow to defendant's defense at trial and argument in the first appeal before this court -- that defendant's only interest in, or concern about, safe handling labels was to the emergency timing, which was not known until August of 1993.

Following Espy's testimony, Schaffer's counsel proffered to the court that he had communicated with Espy's counsel prior to trial and thereby knew the substance of Espy's testimony before the trial began. 20J.A.381-86. Further, he admitted that the extent of his efforts to obtain Espy's testimony at trial was to ask Espy's counsel whether Espy would testify. Id. Schaffer's counsel claimed that he failed to raise the issue of Espy's testimony at trial through a motion for continuance or other means because he assumed that any such motion would fail. 20J.A.387-88. Schaffer's counsel did not explain why, although he was aware of the substance of Espy's testimony at the time of Schaffer's trial, he did not make a new trial motion on this ground within the 7 day period permitted by Fed. R. Crim. P. 33 or seek an extension of time within which to file such a motion as allowed by that rule.

Following defense counsel's proffer, the government, noting the difficulty of testing the offer of proof, requested that the trial court order defense counsel to produce any and all correspondence or memoranda between them and Espy's counsel demonstrating their efforts to determine what Espy would say or to secure Espy's testimony at trial. 20J.A.392-93. In response, the trial court recognized defense counsel's admission that they knew the substance of Espy's testimony before Schaffer's trial, but stated that it would not require defense counsel to provide any such materials because "I can't even think about the complexities of requiring counsel to turn over communications with another lawyer, but I don't think it's necessary." 20J.A.394.

On December 3, 1999, the trial court granted Schaffer's motion for new trial, and this appeal followed.

SUMMARY OF THE ARGUMENT

This Court should vacate the district court's decision to grant Schaffer's motion for new trial and once again reinstate the jury's verdict of guilty on the Meat Inspection Act count. The district court overturned what this Court determined to be a reasoned guilty verdict on the basis of the defendant's claim -- made for the first time fifteen months after the finding of guilt and supported only by his bare assertion -- that he had wanted to, but could not, call in his defense at trial the public official he was charged with attempting to influence.

Reversal is required because Schaffer's motion for new trial was not based on newly discovered evidence and the district court, therefore, lacked jurisdiction to entertain it. The evidence upon which Schaffer relied was not "newly discovered" because, Schaffer admits, he was aware of it at trial. The Federal Rules do not allow a new trial motion brought more than 7 days after the verdict where the evidence is not "newly discovered," but merely "newly available." This result is particularly clear where, as here, the "unavailable" witness is charged with the same crimes as is the defendant.

Moreover, Schaffer's failure to take any steps at trial to introduce the testimony of Secretary Espy, and his total silence on the subject through trial and for fifteen months thereafter, displayed a lack of diligence that should have been fatal to his new trial motion.

Finally, the evidence upon which Schaffer based his new trial motion -- which merely repeated facts for which there was evidence at trial, or which went to issues not in dispute at trial -- was insufficient to merit a new trial.

THE STANDARD OF REVIEW

Whether the district court had jurisdiction to grant defendant Schaffer's motion for new trial is purely a question of law, which this Court reviews de novo. United States v. Torres, 115 F.3d 1033, 1035 (D.C. Cir. 1997) (whether district court had jurisdiction over motion for new trial reviewed de novo). Moreover, the intertwined question of whether "newly available evidence" can be equated to "newly discovered evidence" under Fed. R. Crim. P. 33 is a question of statutory interpretation that is reviewed de novo. Butler v. West, 164 F.3d 634, 639 (D.C. Cir. 1999).

Otherwise, a trial court's ruling on a motion for new trial is reviewed for abuse of discretion. Torres, 115 F.3d at 1035.

However, this discretion is greatly circumscribed. The district court is "not at liberty to set aside the verdict of the jury simply because the trial judge may have thought that the jury reached the wrong result." United States v. Hemphill, 544 F.2d 341, 344 (8th Cir. 1976). Moreover, courts universally review motions for new trial with great disfavor. INS v. Abudu, 485 U.S. 94, 107 (1988) (noting that motions for new trials on the basis of newly discovered evidence are disfavored because of the "strong public interest in bringing litigation to a close as promptly as is consistent with the interest in giving the adversaries a fair opportunity to develop and present their respective cases.").

1.   SCHAFFER FAILED TO MEET ANY OF THE REQUIREMENTS FOR A NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE

In the D.C. Circuit, a defendant seeking a new trial on the basis of newly discovered evidence satisfy all parts of the five-prong test established in Thompson v. United States, 188 F.2d 652, 653 (D.C. Cir. 1951); accord United States v. Bryant, 117 F.3d 1464, 1469 (D.C. Cir. 1997).

The first two prongs of the test go to whether the defendant acted in a timely manner:

1. The evidence must have been discovered since trial.

2. The defendant must show diligence in the attempt to procure the newly discovered evidence.

The remaining three prongs go to whether the proffered evidence actually merits a new trial:

3. The evidence relied on must not be merely cumulative or impeaching.

4. The evidence must be material to the issues involved.

5. The evidence must be of such nature that in a new trial it would probably produce an acquittal.

Schaffer failed to qualify for a new trial under each of these requirements.

The first prong of the five-part standard for a grant of new trial -- that the evidence was in fact discovered after trial -- presented an unassailable legal barrier to Schaffer's motion. District courts have jurisdiction to grant a new trial only if presented with a timely filed motion. United States v. Smith, 331 U.S. 469 (1947); accord, In re United States, 598 F.2d 233, 236 (D.C. Cir. 1979) (recognizing that the Supreme Court in Smith "h[e]ld[] that a timely motion pursuant to Rule 33 [is] a prerequisite to the District Court's power to award a new trial.")

The time limits imposed by Rule 33 are clear and unambiguous:

A motion for new trial based on newly discovered evidence may be made only within three years after the verdict or finding of guilty. . . . A motion for a new trial based on any other grounds may be made only within 7 days after the verdict or finding of guilty . . .

(emphasis added).

Schaffer moved for new trial on October 13, 1999, over fifteen months after a jury found him guilty. Consequently, under the plain language of Rule 33, the district court had jurisdiction to entertain the motion only if it was "based on newly discovered evidence."

Here, the proffered evidence unequivocally was not "newly discovered." Schaffer openly conceded that he knew the substance of Espy's testimony at the time of his trial. 13J.A.200 ("Mr. Schaffer knew the substance of Secretary Espy's testimony at the time of Mr. Schaffer's trial.") The district court also acknowledged this unavoidable conclusion. 20J.A.393 ("[The proffer by Mr. Schaffer's counsel] seems to me to say, yes, we did know what the testimony would be at the time of trial, at least in every respect that is relevant to the question before me."); see also 2J.A.48 (trial court's order).

This fact - that Schaffer knew the substance of Espy's testimony at the time of his trial - ends the matter. Since Schaffer knew about Espy's testimony, his motion for new trial was not "based on newly discovered evidence" but was "based on any other ground." Consequently, the plain and unambiguous language of Rule 33 required Schaffer to file his motion within seven days of the verdict. He did not, and his motion was therefore untimely. Certainly, in this Circuit, the plain language of Rule 33 is held to mean exactly what it says. In fashioning the test for new trial motions based on newly discovered evidence, this Court determined in Thompson v. United States, 88 F.2d 652, that "the evidence must have been discovered since the trial" or it is not "newly discovered" within the meaning of Rule 33. Id. at 653 (emphasis added).

More recently, in Chirino v. NTSB, 849 F.2d 1525 (D.C. Cir. 1988), a case factually analogous to the present one, this Court held that such "unavailable" evidence was not "newly discovered" so as to satisfy a NTSB regulation worded similarly to Rule 33. The petitioner was a pilot charged with falsifying his pilot application who sought reconsideration of his case based on the testimony of an individual who had previously refused to testify because of pending charges that he had accepted bribes from the petitioner and others. Chirino, 849 F.2d at 1527-28, 1529. Members of the NTSB held that this evidence was not newly discovered because it was known to the petitioner before and during the hearing. Id. at 1529. Analogizing the finding to one under Rule 33, this Court agreed, stating:

[Rule 33 d]ecisions from the criminal law setting provide a direct analogy to the situation before the Board in this case. In effect, the FAA alleged that [the petitioner] and [the witness] were co-conspirators in an unlawful scheme to issue fraudulent [pilot] ratings. Inasmuch as [the witness] chose to remain silent in the earlier proceedings, the Board could reasonably conclude that he should not now be allowed to exculpate his co-conspirator at a point when to do so was apparently "cost-free" (or at least no longer unacceptably costly) to him.

Id. at 1532-33.

Likewise, in United States v. Dale, 991 F.2d 819 (D.C. Cir. 1993), this Court expressly held this rule of law applicable to criminal cases as well. The Dale decision followed the long-standing rule of this Circuit that "[t]o obtain a new trial based on newly discovered evidence, a convicted defendant must offer evidence that 'has been discovered since the trial.'" Id. at 838 (quoting United States v. Sensi, 879 F.2d 888, 901 (D.C. Cir. 1989)). Dale emphasized that all other circuits that had considered the question concluded that "this requirement is not met simply by offering the post-trial testimony of a co-conspirator who refused to testify at trial," id. at 838-39, and that the Court's own opinion in Chirino set the course for the D.C. Circuit. Id. at 838-39.

This Circuit has consistently adhered to a strict reading of Rule 33's plain language. See United States v. Torres, 115 F.3d 1033, 1037 (D.C. Cir. 1997) (affirming dismissal of motion for new trial based on newly discovered evidence for lack of jurisdiction where defendant conceded he knew facts supporting his claim at time of trial and noting that a contrary ruling would "defy [Rule 33's] plain language.") Indeed, this rather obvious conclusion is the law in every circuit other than the First. See United States v. Dukes, 727 F.2d 34, 38 (2nd Cir. 1984) ("a defendant must show that the evidence was discovered after trial"); Government of the Virgin Islands v. Lima, 774 F.2d 1245, 1250 (3rd Cir. 1985) ("the evidence must be in fact newly discovered, i.e., discovered since trial"); United States v. Bales, 813 F.2d 1289, 1295 (4th Cir. 1987) ("the evidence must be in fact newly discovered, i.e., discovered since trial"); United States v. Alvarado, 898 F.2d 987, 994 (5th Cir. 1980) ("the moving party must show that the evidence has been discovered since the trial"); United States v. Turns, ___ F.3d ___, 2000 WL 3856, *2 (6th Cir. 2000) ("[the defendant] must show that . . . the evidence was discovered after the trial"); United States v. Woods, 169 F.3d 1077, 1078 (7th Cir. 1999) ("the evidence must have come to the defendant's attention after trial"); United States v. Ryan, 153 F.3d 708, 713 (8th Cir. 1998) ("the evidence must have been discovered after the trial"), cert. denied, ___ U.S. ___, 119 S.Ct. 1454 (1999); United States v. McKinney, 952 F.2d 333, 334 (9th Cir. 1991) ("[t]he evidence was not discovered after the trial, . . . and therefore it was not newly discovered"); United States v. Quintanilla, 193 F.3d 1139, 1147 (10th Cir. 1999) ("[d]efendant must show . . . the evidence was discovered after trial"); United States v. Ramos, 179 F.3d 1333, 1336 (11th Cir. 1999) ("the movant must establish that . . . the evidence was discovered after trial").

The one deviation from this all-but-universal rule is the First Circuit, and so the trial court relied on First Circuit authority to grant Schaffer's new trial motion. In the First Circuit, Rule 33 is interpreted to mean, not just what it says, but rather that "the defendant has to establish that the evidence was . . . unknown or unavailable at the time of trial." United States v. Montilla-Rivera, 115 F.3d 1060, 1064-1065 (1^st Cir. 1997) (emphasis added, internal quotation marks omitted). The First Circuit has expressly recognized that its decisions directly conflict with those of the other Circuits, including this Court's decision in Dale. Id. at 1065-66 ("[the First Circuit] has, for almost twenty years, held that the 'newly discovered' language of Rule 33 encompasses evidence that was 'unavailable.' . . . In this, our test has differed from that of other circuits, as the cases cited above [including Dale] demonstrate.") Nevertheless, in granting Schaffer's motion, the district court expressly relied on Montilla-Rivera to the exclusion of D.C. Circuit precedent. 2J.A.51-52.

Specifically, the district court predicted that this Court would in the future carve out an exception to the "must be discovered after trial" standard to allow a new trial motion on the basis of previously known but unavailable testimony if it were to be given by persons who were not defendant's co-defendants or coconspirators. 2J.A.51. Inexplicably, the trial court based this prediction on the First Circuit's decision in Montilla-Rivera, which held that previously known but unavailable evidence from co-defendants and coconspirators could serve as the basis for a new trial motion. 115 F.3d at 1065-1066. This reliance is inexplicable because, as even the trial court expressly acknowledged, this Circuit's "clear rule" is that, contrary to the First Circuit's rule in Montilla-Rivera, "the testimony of a co-defendant or a coconspirator can never support a Rule 33 motion for new trial." 2J.A.49. The district court thus predicted that this Circuit, unlike every other Circuit including the First, would someday create two standards for Rule 33 motions, one applicable to testimony of co-defendants or coconspirators, and another one applicable to every other type of evidence.

To the contrary, this Circuit has gone out of its way to indicate that it will not create a bifurcated standard for Rule 33 motions. In United States v. Ortiz, 136 F.3d 161 (D.C. Cir. 1998) and again in United States v. Gloster, 185 F.3d 910, 915 (D.C. Cir. 1999), defendants argued that statements by third party witnesses (rather than co-conspirators) known to the defendant but "unavailable" during trial can constitute newly discovered evidence. In both instances, this Court greeted this proposition with the appropriate skepticism, even though it did not have the occasion to rule on it directly.

In Ortiz, 136 F.3d at 167-68, this Court observed:

The traditional definition of newly discovered evidence is evidence discovered since the trial, at least with respect to motions for a new trial, and [the testimony of the third party] was known to Ortiz at the time of trial. Ortiz cites no authority for his newly minted definition of "newly discovered" evidence . . .

Similarly, when the defendant in Gloster raised the same argument that the district court accepted here, this Court admonished that

[a]lthough it is true that some of the cases in which we have applied the general rule [that testimony known to a defendant but "unavailable" until after trial does not qualify as "newly discovered evidence"] involved codefendants, . . ., that was not the situation in Ortiz itself, where the witness who initially refused to testify was a nonparty. Ortiz strongly suggested that even a nonparty witness' post-trial offer to testify would fail to qualify as newly discovered evidence where the substance of the testimony was known to defendant at the time of trial.

Gloster, 185 F.3d at 915 (citation omitted).

Ultimately, Ortiz and Gloster both denied the defendants' arguments for new trial on other grounds. But these decisions do not cast doubt upon the plain meaning and import of Rule 33. To the contrary, they make clear that, contrary to the district court's reasoning, a witness's status as a nonparty rather than a coconspirator provides no reasonable basis to create a new meaning for the plain language of Rule 33.

In any event, there is no principled reason why, even if Secretary Espy could not be characterized as a co-conspirator or co-defendant, this would make any difference as to whether his testimony was newly discovered. Rule 33 provides absolutely no support for the distinction created by the district court. The time limitations of Rule 33 apply uniformly irrespective of the source of the underlying evidence -- if the motion is based on newly discovered evidence it must be filed within three years, if based on anything else it must be filed within seven days. In the end, regardless of Espy's status, Schaffer knew about his testimony before trial and, therefore, it could not have been newly discovered.

Even if, contrary to fact, Rule 33 admitted of a special exception for evidence coming from anyone other than a co-defendant or a co-conspirator, that standard would not apply here because Espy was in fact Schaffer's co-conspirator, and the government so alleged before trial. 4J.A.113. In response to this fact, Judge Robertson further attempted to distinguish Dale on the ground that he had earlier determined, in an unreviewable decision, that there had been no conspiracy. 2J.A.49 n.2. But under the law of this Circuit, it does not matter whether a person identified as a co-conspirator is tried in the same proceeding or even if he is charged or convicted of conspiracy; his testimony is not "newly discovered evidence" if it is known to defendant at trial. See Chirino, 849 F.2d at 1532-33 (concluding testimony not "newly discovered" under analogous NTSB regulation where known to defendant before trial and defendant and newly available witness "in effect . . . alleged . . . [to be] co-conspirators," even though not charged or tried together or convicted of conspiracy) (emphasis added).

Moreover, Secretary Espy was charged in his own trial with receiving the very same things of value that Schaffer was alleged in the present case to have given. 20J.A.380-81 (trial court's judicial notice that the indictment against Espy "contain[ed] numerous allegations with respect to Russellville, APF and the birthday party" and "counts which related to the exact same subject of what Mr. Schaffer was on trial for.") Espy was not Schaffer's co-defendant simply because the government elected to bring separate indictments and conduct separate trials within which both individuals were charged with violating the same statute for the same offending act (Schaffer as the giver and Secretary Espy as the recipient). This election was grounded on the fact that the defendants were also charged with several non-overlapping crimes. But the fact of separate trials does not make Espy any less a co-conspirator, and it does not make his testimony any more "newly discovered," than if the two defendants had been tried together.

District courts in this district are obligated to follow the controlling precedents of this Court. Torres, 115 F.3d at 1036. "That a district judge disagrees with circuit precedent does not relieve him of this obligation whether or not the precedent has been embraced by our sister circuits." Id. As Prof. Moore presciently noted, "[t]he 'obedience' principle is tremendously important in the operation of our hierarchical court system, for unless the inferior courts make a good faith effort to follow the decisions of the courts with jurisdiction to review their judgments, appeals would be endless." Moore's Federal Practice, ¶ 0.402[1], n.14 (1995). The district court's rejection of precedent from this Court in favor of an out-of-circuit decision that expressly conflicts with this Court's precedent must be reversed.

Reversal in this case would not, as the trial court fretted in its opinion, create "a per se rule[] that a Rule 33 motion may never be granted for information that was known to the defense at the time of trial." 2J.A.51. To the contrary, Rule 33 allows a new trial on the basis of evidence known at the time of trial, so long as the defendant moves within 7 days of the verdict "or within such further time as the court may fix during the 7 day period." Schaffer is not barred from making a new trial motion simply because he was aware of the evidence at trial; he is barred because he first brought the matter to the district court fifteen months after the verdict, rather than the seven days required by Rule 33.

Contrary to the trial court's reasoning, there is no rational basis for creating a three-year hiatus during which a defendant can sit on evidence that he knew about at the time of trial before unleashing his new trial motion. Such a distortion of Rule 33 would allow a defendant, as it has allowed Schaffer, to make a mockery of appellate proceedings by waiting until he loses his appeal to present a motion for new trial that could have been made before appeal. Here, in fact, Schaffer lost his appeal on the new trial motion that he did bring immediately after trial, but has nevertheless prevailed on the new trial motion that he strategically deferred until the first appeal was lost.

The second element of the five-prong test that a criminal defendant moving for a new trial must satisfy is diligence in procuring the newly discovered evidence. Here it is beyond question that Schaffer acted totally without diligence. Although he was aware at the time of trial of the evidence upon which he bases his motion, he kept it secret from the prosecution and the courts for fifteen months, and only raised it for the first time after the trial, after two other motions for new trial, and after appeal.

Immediately after trial, Schaffer brought a new trial motion that was denied; the denial ultimately was affirmed on appeal. Schaffer, 183 F.3d 833. Following Espy's trial and acquittal at the end of 1998, Schaffer brought his second new trial motion, claiming to have found newly discovered evidence from the Espy trial. 8J.A.134-35. However, he made no mention of the evidence upon which he now relies, even though he had been aware of it months before, at the time of his own trial. Id. The second new trial motion, which went only to the gratuities count of which Schaffer had been convicted, became moot when this Court affirmed Schaffer's acquittal under that count.

Then, on September 13, 1999, after this Court expedited issuance of its mandate so that Schaffer could be sentenced, Schaffer asked the district court to set the sentencing date well in the future because his counsel had yet to determine whether "matters first revealed in the trial of former Secretary Espy warrant the filing of [a motion for new trial based upon newly discovered evidence]." 12J.A.193. But Espy did not testify at his own trial, and Schaffer knew about Espy's potential testimony at the time of trial. Either Schaffer still did not believe that Espy's testimony warranted a new trial, or he was simply playing games with the court. Finally, having exhausted every other means to forestall sentencing, Schaffer sprang the new trial motion that is the subject of this appeal. However Schaffer might want to characterize them, such actions cannot possibly constitute due diligence. Cf. United States v. Hoffa, 382 F.2d 856, 862-63 (6^th Cir. 1967) (where defendant's third motion for new trial based upon newly discovered evidence was predicated upon affidavits which the defendant should have "discovered" to support his prior motions for new trial, he did not demonstrate due diligence).

This history notwithstanding, the district court erroneously determined that "diligent efforts were made to adduce Espy's testimony at Schaffer's trial, and that the testimony could not have been adduced by other or more diligent efforts." 2J.A.56. There were no disputed facts that served as the basis for this ruling, and it therefore was unquestionably an abuse of discretion.

Indeed, the only "effort" that the trial court found Schaffer to have made to procure Espy's testimony at trial was a "conversation" between Schaffer's and Espy's counsel, in which "'the answer was no.'" 2J.A.53. Espy was never informed of that request. 19J.A.349-50. Schaffer's counsel also "tr[ied] to decide whether to seek a continuance," but ultimately decided not to do so because he was not certain exactly when Espy would become available to testify. 2J.A.53. Absolutely no explanation was ever given as to why Schaffer did not include Espy's testimony as one basis for the motion for new trial that he did timely file within seven days of the verdict. (In the earlier appeal, this Court affirmed the trial court's denial of that motion.)

Contrary to the district court's decision, a defendant's abject failure to do anything to address the unavailability for trial of a witness he claims is important to his case simply cannot be characterized as "diligent." For one thing, Schaffer did not even attempt to subpoena Espy for trial.

Courts have frequently held that a defendant cannot obtain a new trial on the basis of the testimony of a witness whom the defendant failed to pursue diligently by subpoena because of defendant's assumption that the witness would refuse to testify:

• Jones v. United States, 393 F.2d 491 (10^th Cir. 1968) (where defendant moved for new trial on the basis of testimony of witness whose counsel informed defendant he would invoke the Fifth Amendment, "none of [the witness'] testimony has the requisite status necessary to sustain a motion for new trial based upon newly discovered evidence. Appellant charges he was denied a fair trial because the defense counsel would not allow [the witness] to talk with anyone. The record discloses that the only attempts to obtain [the witness'] testimony were telephone requests of counsel.);

• United States v. Theodosopolous, 48 F.3d 1438, 1448-49 (7^th Cir. 1995) (holding that defendant failed to show due diligence even after issuing subpoena to witness he knew would invoke the Fifth Amendment because defendant accepted "missing witness" instruction rather than taking other measures to obtain testimony);

• United States v. Quintanilla, 193 F.3d at 1147 ("[d]efendant's counsel employed no diligence in attempting to gather [testimony from a witness who would invoke the Fifth Amendment]. Counsel did not call . . . [the] witness at trial, nor did counsel adduce any testimony outside the jury's presence that [the witness] would assert his Fifth Amendment rights and not testify until he had been formally sentenced");

• United States v. Castano, 756 F.Supp. 820, 824 (S.D.N.Y. 1991) ("a new trial is not warranted under Rule 33 because [defendant] has failed to show that he exercised the due diligence required by the Rule. Although [defendant] knew and his counsel were well aware of the content of [the witness'] prospective testimony . . . after being advised by [the witness'] counsel that he would assert his Fifth Amendment rights, [defendant] failed to either subpoena [the witness], request a continuance until after [the witness] had been sentenced, or request that the government grant [the witness] immunity.")

Another minimum showing of diligence is to request a continuance to allow a supposedly important witness to testify. Schaffer, however, did not even try to move for a continuance. In United States v. Kamel, 965 F.2d 484 (7^th Cir. 1992), the Court of Appeals found a lack of diligence where defendant, while aware at the time of trial of the possibility that his brother and a unavailable witness could give helpful evidence, did not move for a continuance or otherwise seek to procure that testimony. "If there is possible evidence which would exonerate a defendant, he may not simply ignore it, awaiting the outcome of the trial and having the opportunity of using that evidence later for a second chance for acquittal." Id. at 493. The Court concluded that the defendant's claim of diligence was "seriously undermined" by a failure to attempt to subpoena the witness or to ask for a continuance. Id. at 493, n. 21, quoting United States v. Oliver, 683 F.2d 224, 228 (7th Cir. 1982). And, while here the trial court excused Schaffer from even essaying a motion for continuance because of his attorney's supposition that it would be denied, in Kamel "the fact that Mr. Kamel mentioned a continuance to his attorney on the first day of trail, who then properly advised him that the court was quite unlikely to grant that request at such a late date, does not alter this analysis." 965 F.2d at 493, n.21.

Thus, a defendant cannot make a credible claim of diligence where he allows the trial to proceed without some effort to bring the matter to the trial court's attention. For example, in United States v. Kulczyk, 931 F.2d 542, 547 (9th Cir. 1991), the court noted that "[defendant's] failure to inform the judge before or at least during the trial that he was unable to locate two witnesses indicates a lack of due diligence." Similarly, in United States v. Wright, 625 F.2d 1017, 1019 (1^st Cir. 1980), the court held that it was "far from clear" that defendant exercised diligence where "appellant's trial counsel made no motion for a continuance in order to attempt to locate [the unavailable witness] to testify on appellant's behalf."

The district court accepted Schaffer's excuse that he did not request a continuance because he did not know when Espy would become available and therefore believed the filing of such a motion would have been futile and in bad faith. 2J.A.53-54. However, in Kamel, defendant had no way of knowing when, if ever, the witnesses he wanted (one of whom was about to be tried for the same offense, and one of whom left the country) would be available to testify. 965 F.2d at 493. In Wright, the proposed testimony was from a witness that the defendant could not locate, and defense counsel asserted he had been "investigating" her whereabouts for at least a year.

Schaffer's argument that he was powerless to seek a continuance ignores the law of this Circuit. This Court has specifically held that "because no firm rules can be articulated as to when a continuance is required, the decision to grant a continuance is vested in the trial judge's discretion, and reviewable only when such discretion has been abused." United States v. Haldeman, 559 F.2d 31, 83 (D.C. Cir. 1976). As this Court recognized, this discretion extends to circumstances, such as Schaffer claims were present here, where the continuance required is indefinite because the parties and the court are uncertain as to when the witness will become available. Id. at 83-84 (trial court required to determine whether "the evidence will be favorable to the defense and, if so, that it will be significant," and "whether the burdens of granting an indefinite continuance outweighed the likely value of [the unavailable witness's] testimony.") Therefore, neither the trial court nor Schaffer could assume more than a year after the fact that a motion for a continuance would have been futile, much less bad faith.

A motion for continuance would have required the trial court to determine whether Espy's potential testimony was so important as to warrant a continuance until resolution of the Espy trial then scheduled for October of 1998, and any possible appeal therefrom. If the trial court had determined that proceeding without Espy's testimony would constitute an "injustice," it could have granted a continuance.

If, on the other hand, the testimony was not so important as to warrant a continuance prior to trial -- as the district court implicitly found in stating that a motion for continuance would have been in "bad faith" -- it could not conceivably warrant a new trial now, following a guilty verdict and reinstatement of the verdict on appeal. Evidence of insufficient importance to merit a continuance could scarcely satisfy the strict requirements for a new trial based on newly discovered evidence. Here, Schaffer inexcusably failed to request a continuance, thereby conceding that the evidence was insufficient to merit a new trial or failing to demonstrate due diligence.

If the district court's findings stand, then it will have succeeded in reading the "due diligence" prong out of the requirements of Fed. R. Crim. P. 33 and Thompson. A defendant will be able to show due diligence without lifting a finger to procure testimony or to make any showing on the record once he is told that a witness intends to invoke the privilege against self-incrimination. As a result, supposedly important evidence, sufficient to warrant a new trial, will not come to the attention of the court or the government until they have undergone a potentially needless trial (and, as here, appeal). This result would utterly subvert the notions of judicial economy and the finality of jury verdicts. If Schaffer's actions constituted due diligence, then the requirement truly means nothing.

IV. THE EVIDENCE ADDUCED DOES NOT MERIT A NEW TRIAL

Under the test established in Thompson v. United States, 188 F.2d at 653, a defendant seeking a new trial on the basis of newly discovered evidence must not only show that (1) the underlying evidence was discovered since trial and (2) that he exercised diligence in attempting to procure that evidence. He must also show that the evidence is: (3) not merely cumulative or impeaching; (4) material to the issues involved; and (5) of such nature that in a new trial it would probably produce an acquittal.

Not only did Espy fail to give testimony of such caliber, he provided absolutely no substantive evidence to exculpate Schaffer. During approximately two and a half hours on the stand, Espy did not provide a scintilla of evidence regarding defendant Schaffer or his conduct. Instead, Espy provided uninformed opinions regarding his understanding of the events that brought him to Russellville -- events in which he conceded having no part. Espy never suggested that he knew how the APF meeting came about, and he admitted having no knowledge of the role Schaffer played in arranging the APF meeting or his and Dempsey's attendance in Russellville. 19J.A.298. He claimed unawareness of Schaffer's role in providing false information to Betty Stern, which Stern eventually included on Espy's travel itinerary. 19J.A.309-310. On the basis of these admissions alone, Espy's testimony could not probably create a reasonable doubt regarding Schaffer's conduct in the minds of rational jurors.

The district court nonetheless concluded that Espy's testimony suggested three facts. First, the district court held, Espy's testimony indicated that the Arkansas Poultry Federation meeting was not a sham event. 2J.A.46-47 (citing Espy's testimony that he attended the meeting, that he gave a speech to about 40 people, and that he prepared carefully for the appearance by making detailed handwritten notes en route to Russellville, working off prepared "talking points" so that he could "internalize" them and speak extemporaneously).

Second, the district court held that Espy's testimony indicated that Espy traveled to Russellville not to receive expensive entertainment and meet his girlfriend, but because of the APF meeting. Id. (citing Espy's testimony that he accepted the invitation to go to Russellville as a courtesy to Tyson and because Arkansas Senator David Pryor had urged him to accept, that it was nothing special for a native of Indianola, Mississippi to hear B.B. King, and that he did not know Patricia Dempsey would be in Russellville until after his arrival).

Lastly, according to the district court, Espy's testimony provided evidence that during Espy's trip to Russellville, he had no conversations about Tyson Foods or about USDA policies, and that nothing was said to him or done in his presence that suggested to him that the birthday party or his invitation to it was intended to influence him. Id.

Although the district court noted near the outset of its opinion that Espy's testimony provided these three pieces of evidence, the court relied only upon the first two in concluding that Espy's testimony warranted a new trial for Schaffer. 2J.A.47 ("[T]he proffered evidence about the nature of the APF meeting and Espy's reasons for attending has an important bearing on the 'intent question.' I find it indeed to be of such nature that, in a new trial, it would probably produce an acquittal.") (emphasis added).

In reality, though, the first and third of these facts were totally cumulative to facts presented at Schaffer's trial. The second fact, while arguably not cumulative, was totally immaterial. And, most importantly, none of these facts are in the least likely to produce an acquittal at a new trial.

A. Part of the Evidence the District Court Replied Upon Was Cumulative

The first fact supposedly established by Espy's testimony - "that the Arkansas Poultry Federation meeting was not a sham event," 2J.A.46 - is indisputably cumulative with evidence presented at Schaffer's trial. As the district court expressly noted, "[t]here was trial testimony to the effect that the APF meeting was not a sham." Consequently, this evidence could not justify a new trial under the third prong of the Thompson test.

The district court apparently reached the opposite conclusion because the trial testimony that the APF was not a sham "was elicited on cross-examination from a prosecution witness." 2J.A.47. This distinction makes no sense at all. That a government witness admitted this supposedly exculpatory fact only strengthened Schaffer's position at trial and undercut any need for Schaffer to present additional evidence to establish yet again the same fact.

Although the district court did not rely on the third fact supposedly established by Espy's testimony - that he had no discussions about USDA policy during his trip to Russellville - this evidence is also cumulative to testimony introduced at trial. Specifically, Joe Moutz, an FBI agent who interviewed Schaffer during the FBI's initial investigation, testified:

Q: Did you discuss with Mr. Schaffer his knowledge of any business discussions with Secretary Espy by Tyson Foods personnel?

A: Yes.

Q: What did he say about that?

A: He said that he personally did not participate in any such type business discussions and, furthermore, that he had no knowledge of anyone at Tyson Foods having such discussions with Secretary Espy.

6/22/98 Tr. at 1216. Schaffer's counsel further elicited from Agent Moutz on cross-examination the following testimony:

Q: [Schaffer] also told you that in the course of that ride [with Secretary Espy from the airport to the APF event], there were no business matters discussed whatsoever; isn't that right?

A: That's what he told me.

* * * * *

Q: . . . And you were also asked if Secretary Espy delivered his remarks at the Arkansas - - Arkansas Poultry Federation, and you said he did? Archie told you that, right?

A: Well, I think I testified that he did. I don't recall being asked about the remarks. Yes. That's what Mr. Schaffer told me. That's what I testified to.

Q: Mr. Schaffer told you in the course of that interview that to his knowledge, no business matters were discussed with Secretary Espy by anybody at Tyson as well; right?

A: That's what Mr. Schaffer told me.

6/22/98 Tr. at 1227-28.

B. The Remainder of the Evidence the District Court Relied Upon Was Immaterial

Under the fourth prong of the Thompson test, immaterial evidence cannot justify a new trial. The evidence supporting the second fact found by the district court -- Espy's testimony as to his own reasons for traveling to Russellville -- was totally immaterial with respect to any issue going to Schaffer's guilt.

The indictment charged Schaffer with participating in giving Secretary Espy the benefits of the Russellville party with the intent to influence him in the performance of his duties under the Meat Inspection Act. At the conclusion of the trial, the district court instructed the jury that to find Schaffer guilty on this count they had to find beyond a reasonable doubt:

One, the defendant knowingly gave or offered directly or indirectly a thing of value to Secretary Espy. And I'll define what a thing of value is.

Two, at that time, Secretary Espy was an officer or employee of the United States authorized to perform duties prescribed under the Meat Inspection Act.

And three, the defendant did so with the intent to influence Secretary Espy in the performance of any duty under the Meat Inspection Act.

6/25/98 Tr. at 1778.

As the jury instruction reflected, the crime with which Schaffer was charged did not require the jury to make a determination as to Secretary Espy's state of mind. Indeed, Espy's state of mind was irrelevant; all that mattered was Schaffer's intent. See United States v. Anderson, 509 F.2d 312, 332 (D.C. Cir. 1974) ("[t]he payment and the receipt of a bribe are not interdependent offenses, for obviously the donor's intent may differ completely from the donee's.").

The district court ruled, however, that the government's theory of the case put Espy's reasons for traveling to Russellville directly in issue. 2J.A.47. The court gave no citation for this assertion, for the very good reason that it is incorrect. The government never suggested that why Espy traveled to Russellville was irrelevant to Schaffer's intent on the Meat Inspection Act count.

As to the APF meeting, the government's case focused on Schaffer's conduct and motives in arranging that event, not Espy's motives for attending. On this issue, the government asserted during closing argument only, "Is there any question . . . that that APF event was used as a disguise for the real reason that Secretary Espy was invited by Don Tyson with the assistance of Mr. Schaffer for himself and his companion Patricia Dempsey to come to Arkansas[?]" 23J.A.504 (emphasis added). This argument correctly emphasized that Don Tyson and Schaffer used the APF to conceal the real reason Espy was invited to Russellville; it did not in the least raise the question of why Espy decided to travel to Russellville.

Simply put, the jury had to determine Schaffer's state of mind, not Espy's. As government counsel carefully explained to the jury during closing argument:

"[T]his case is not . . . about whether or not Secretary Espy was bought or could be bought. This is about the giver and what was in the giver's mind when the things given were given."

23J.A.500. The district court clearly erred in finding that Espy's testimony as to why he went to Russellville was material evidence going to Schaffer's guilt or innocence.

Even assuming, arguendo, that Espy's testimony was not cumulative in part and immaterial in the remaining part, the district court erred in concluding that Espy's testimony would probably produce an acquittal at a new trial.

The law imposes a "severe burden" on defendants seeking a new trial to demonstrate "that newly discovered evidence probably would have resulted in an acquittal." United States v. Agurs, 427 U.S. 97, 111 and n.19 (1976). "On review, an appellate court must weigh whether or not there is in reality a significant chance that the disclosure would have induced a reasonable doubt in the minds of enough jurors to prevent a conviction." United States v. Zagari, 111 F.3d 307, 322 (2d Cir. 1997) (internal quotes omitted). Furthermore, a new trial should not be granted in light of newly discovered evidence where "persuasive independent evidence . . . support[s] the defendant's conviction." United States v. Spencer, 4 F.3d 115, 119 (2d Cir. 1993); accord, United States v. Sensi, 879 F.2d 888, 901 (D.C. Cir. 1989) (holding that "[a]lthough [previously undiscovered] testimony would have gone some distance toward corroborating [defendant's] story, the fact remains that the great weight of evidence would still point to [defendant's guilt].").

Espy's testimony could not create a reasonable doubt in the mind of a rational person, let alone probably produce an acquittal in light of the totality of the evidence against Schaffer. Espy testified only as to his own state of mind; he could provide no testimony as to Schaffer's conduct or intent.

In finding that Espy's testimony would probably produce an acquittal, the district court held that "the proffered evidence about the nature of the APF meeting and Espy's reasons for attending has an important bearing on the 'intent question'" and is "of such nature that, in a new trial, it would probably produce an acquittal." 2J.A.47. To support this notion, the district court opined that the "proposition advanced by the prosecution and obviously accepted by the jury was: (i) Schaffer put Secretary Espy's trip together to make it look like official travel to address the [APF]; (ii) the [APF] speech was a sham; and thus (iii) Schaffer must have had a guilty reason for doing what he did." 2J.A.45-46. The trial court's citation for this "proposition," however -- 6/23/98 Tr. at 1367-70 -- does not in any way support it. Instead, the trial court cited a discussion between the parties and the court outside the presence of the jury regarding Schaffer's creation of false APF invoices. 2J.A.45-46.

In fact, the government did not argue to the jury that the APF event was a "sham." As stated in the government's opening brief in the first appeal of this case to this Court, the government did not allege at trial that the APF speech never occurred, or that Espy never spoke, or that the attendees were not very interested in what Espy had to say. Brief for Appellant, United States v. Schaffer, Nos. 98-3123 and 98-3126 at 15 n.10. To the contrary, the government elicited testimony during its case-in-chief to the effect that there was an APF meeting and that Espy spoke to the attendees. The government's position at trial was that the event was initiated by Tyson Foods and Schaffer and timed to coincide with the Tyson party to create an official reason for Espy to be in Russellville that weekend and attend the party. The evidence demonstrated this was so whether Espy was aware of it or not.

Nor would Espy's testimony about his own reasons for attending the APF meeting likely produce an acquittal. As noted above, Espy's reasons for attending the event were not material, much less likely to lead the jury to a verdict of acquittal. Regardless of Espy's reasons for attending the meeting, the jury reasonably concluded that Schaffer secured his attendance at the party and, in so doing, intended to influence him.

What was central and important to the government's case was proof of Schaffer's involvement in providing Espy and Dempsey with things of value; proof of Schaffer's and Tyson Foods' interest in, and intent to influence Espy with respect to, the pending issues of zero tolerance and safe handling labels; proof that Schaffer provided Espy's staff with false information to conceal the birthday party; proof that Schaffer caused Don Allen of the APF to create fraudulent invoices for travel and lodging actually provided to Espy by Tyson Foods; and proof that Schaffer lied to FBI agents when they interviewed him about Espy's attendance in Russellville. In other words, the government relied on evidence of Schaffer's conduct and state of mind, not Espy's, to prove Schaffer's guilt. Espy's testimony did nothing to refute any of this evidence of Schaffer's unlawful intent.

Furthermore, the trial court's order misunderstood the "intent question" as defined by this Court's prior opinion. 2J.A.47. In fact, the only impact Espy's testimony had on the "intent question," as defined by this Court, was to provide additional powerfully inculpatory testimony that demonstrated Schaffer's and Tyson Foods' interest in zero tolerance and safe handling labels during April and May of 1993.

The basis on which the trial court erroneously granted Schaffer's post-trial motion for acquittal on the Meat Inspection Act count was that the government had not demonstrated sufficient evidence of matters pending of interest to Schaffer and Tyson Foods at the exact time of the Russellville trip. Schaffer, 183 F.3d 848-49. Espy's testimony conclusively demonstrated that the specific issues of zero tolerance and expedited regulations for safe handling labels were publicly known by the industry and that Espy was pushing those issues. 19J.A.345-47. Furthermore, both those issues were subjects of Espy's speech to the APF just minutes before he attended the Tyson Foods party and accepted Tyson's largesse. 19J.A.327; 24J.A.546-47.

Faced with this highly inculpatory evidence, the trial court conceded: "[Espy's] notes and the talking points undercut the defense position that no significant USDA policy initiatives were afoot at the time of the Russellville party, but that issue - if it is still an issue at all after the Court of Appeals' decision - it is of far less importance than the 'intent question.'" 2J.A.46 n.1. This holding completely misinterprets the Court's analysis of the "intent question." The Circuit did not even consider whether the APF event provided cover for Espy's travel in deciding whether Schaffer had requisite intent. Schaffer, 183 F.3d at 847-48. Rather, it focused precisely on whether the evidence demonstrated that USDA policies were in play and known to the industry - so that the jury could find that Schaffer intended to influence the Secretary with respect to those issues - and on Schaffer's conduct. Id. at 848-50.

Contrary to the district court's holding, this Court placed very little, if any, reliance upon the "cover up" nature of the APF speech in deciding the "intent question." While the Court mentioned the issue in passing while examining the evidence that substantiated Schaffer's involvement in providing Espy and his girlfriend things of value, Schaffer, 183 F.3d at 847, it then turned to the "intent question" and did not address the nature of the APF speech again. The trial court's assertion that this Court viewed the nature of the APF event and Espy's reasons for attending as crucial proof of Schaffer's intent is simply without any basis in the record.

Because there is no indication that either the jury or this Court relied in any part on Espy's opinion regarding the nature of the APF meeting or Espy's reasons for traveling to Russellville in determining Schaffer's intent, Espy's testimony could not probably produce an acquittal. United States v. Quintanilla, 193 F.3d at 1148 ("Evidence, newly discovered or otherwise, which touches only on issues tangential to defendant's defense, cannot serve as an adequate foundation for granting a new trial.")

Finally, the trial court grounded its determination that Espy's testimony would probably produce an acquittal on a finding that the government's case was "thin" because it was circumstantial, and because this Court had stated that, after reviewing the evidence, the jurors were free to choose between acquittal and guilt. 2J.A.47. In so finding, the trial court (1) ignored that, regardless of the sufficiency of the evidence, the jurors always may choose between acquittal and guilt; (2) misunderstood the government's proof and this Court's consideration of the "intent question" as described above; (3) ignored the additional inculpatory evidence which Espy's testimony provided with respect to the intent question; and (4) ignored his own instructions to the jury that the law does not distinguish between direct and circumstantial evidence. See 6/25/98 Tr. at 1769-70 (trial court's instruction to the jury that "[t]he law doesn't make any distinction between the weight you should give to either kind of evidence nor does circumstantial evidence require a greater degree of certainty than direct evidence. In reaching a verdict in this case, you should weigh all the evidence presented, both direct and circumstantial.")

CONCLUSION

The court below has for the second time thrown out the jury verdict finding Schaffer guilty of violating the Meat Inspection Act. In so doing, the district court ignored D.C. Circuit precedent and the plain meaning of Rule 33. The court accepted cumulative and immaterial evidence as a basis for abrogating the jury's reasoned verdict. This decision undercut the public interest in the finality of criminal judgments and should be reversed.

Dated: January 14, 2000. Respectfully submitted,

By: __________________________________

Donald C. Smaltz

Independent Counsel

Charles M. Kagay

Chief Appellate Counsel

Joseph P. Guichet

Senior Associate Independent Counsel

Wil Frentzen

Associate Independent Counsel

103 Oronoco Street, Suite 200

P.O. Box 26356

Alexandria, Virginia 22314

Tel: (703) 706-0010

Fax: (703) 706-0050

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

2. Citations to the Joint Appendix are denoted by appendix tab number, "J.A.," and appendix page number.

3. Don Tyson's note read: "Mike - Next week you will get an invitation from Arkansas Poultry Federation for May 15 Meeting. - David P[ryor] and Jim Sasser and maybe one more couple will be on the airplane with you and we will take you back on Sunday." 24J.A.509. The printed invitation accompanying the handwritten note referred to the event as a musical celebration for Romona Caldwell and John Tyson and listed 17 scheduled events and six different musical groups who would perform over the three day celebration. 24J.A.507.

4. By omitting Dempsey's name from the passenger list of those traveling with Espy on the corporate plane from Russellville, Schaffer further obscured the private nature of the trip from the USDA travel coordinator. Id. at 850.

5. Espy denied knowing that Don Tyson had offered to provide him with transportation on a Tyson's jet. 19J.A.334. When shown the note from Tyson to Espy, 24J.A.509, which conclusively demonstrated that Tyson made such an offer, Espy stated that he did not recall the letter. 19J.A.334.

6. Accord, United States v. Andrade, 94 F.3d 9, 14 (1st Cir. 1996) ("remedy of new trial is rarely used; it is warranted only where there would be miscarriage of justice or where the evidence preponderates heavily against verdict"); United States v. Gordils, 982 F.2d 64, 72 (2d Cir. 1992) (new trial motions should be addressed by district courts with "great caution" and granted only "in the most extraordinary circumstances.") (emphasis in original); United States v. O'Keefe, 128 F.3d 885, 898 (5th Cir. 1997) ("motions for new trial are not favored, and are granted only with great caution"); United States v. Turner, 995 F.2d 1357, 1364 (6th Cir. 1993) (motions for new trial "should be granted sparingly and with caution"); United States v. Linwood, 142 F.3d 418, 422 (7th Cir. 1995) (exercise of power conferred by rule governing new trial motions is reserved for only most extreme cases); United States v. Troutman, 814 F.2d 1428, 1455 (10th Cir. 1987) ("courts disfavor new trials, and exercise great caution in granting them").

7. Black's Law Dictionary defines "discover" as: "To uncover that which was hidden, concealed, or unknown to everyone. To get first sight or knowledge of; to get knowledge of what has existed but has not theretofore been known to the discoverer." Black's Law Dictionary 322 (6th ed. 1991). See also Meriam Webster's Collegiate Dictionary 331 (10th ed. 1996) (defining discover as: "to make known or visible" or "to obtain sight or knowledge of for the first time."). Clearly, evidence known to the defendant at the time of trial (regardless of whether it was available for use by him) cannot be "newly discovered" fifteen months later.

8. Other circuits have similarly held that testimony of "unavailable" non-party witnesses known at the time of trial cannot serve as newly discovered evidence. See United States v. Ouimette, 798 F.2d 47 (2^nd Cir. 1986) (holding that exculpatory testimony of non-party witness known to defendant during trial but unavailable because police officers threatened witness could not constitute "newly discovered evidence" under Fed. R. Crim. P. 33, but evidence of threats themselves, which defendant did not discover until after trial, could constitute newly discovered evidence); United States v. Cotner, 657 F.2d 1171, 1173 (10^th Cir. 1981) (upholding denial of defendant's motion for new trial on basis of "unavailable" testimony of witnesses because "it is apparent that [defendant] was aware of all so-called newly discovered witnesses and evidence prior to trial.")

9. The only plausible reason for Schaffer's failure to take any steps to procure Espy's testimony at his trial was that he did not really want the testimony. As the district court noted, much of what Espy had to say was in fact quite inculpatory towards Schaffer. 2J.A.46 n.1.

10. The trial court gave no record citations for these findings, and two were in fact totally unsupported by the record. First, Senator Pryor did not urge Espy to attend the May 15, 1993 APF meeting in Russellville. Secretary Espy testified that he received either a letter or a phone call from Senator Pryor asking him to accept the first invitation he received from the APF to speak at a different function in Hot Springs, Arkansas, on a different date. 19J.A.274. Second, contrary to the district court's finding, Espy at no time testified that he did not know Patricia Dempsey would be in Russellville until after he arrived. The only testimony from Espy even approaching this subject was to the contrary - that he knew Patricia Dempsey would be at the Tyson party while he was at the APF meeting. 19J.A.333.

Moreover, in finding that Espy traveled to Russellville not to attend the party but to speak at the APF meeting, the district court ignored powerful evidence that refuted Espy's self-serving testimony on this point. On cross-examination, the government introduced Espy's pocket calendar for May 15 and 16, 1993, both pages of which stated, not "APF," but "Tyson." 24J.A.550. Similarly, on a page out of one of Espy's legal pads dated April 27, 1993, was written "schedule b-day party - Ark." 24J.A.543.

11. Contrary to the district court's findings as to this testimony, Espy made it clear that he discussed USDA policies during his trip to Russellville. Espy testified that at the APF event, he discussed both zero tolerance and safe handling labeling along with other USDA policies. 19J.A.331-32. Also contrary to the trial court's findings, Espy conceded that he may well have had discussions "concerning the business or interests of the poultry industry" while at the Tyson party. 19J.A.285.

12. 2J.A.47, citing 23J.A.465 (testimony from Don Allen, Senior Vice President of the APF, that the APF meeting was "a legitimate event") and 6/23/98 Tr. at 1347-48 (argument by Schaffer's counsel to the court that "Don Allen squarely and fully rejected the notion [that the APF meeting was a sham]. He said the Arkansas Poultry Federation was a legitimate event, one that he wished to happen, one that was good for the Poultry Federation, one that was good for the Secretary, and flatly denied the government's theory that it was somehow a sham."); see also 23J.A.472 (testimony from Don Allen that the APF event was "a real meeting" that "would be good for agriculture in the State of Arkansas and good for Secretary Espy").

13. During opening statements, and before the district court dismissed the conspiracy count (of which Espy was an unindicted co-conspirator) and the honest services fraud counts, the government asserted that the APF invite was extended "to provide Mr. Espy with what would otherwise appear to be an official business reason to be in Arkansas when, in truth and in fact, the real reason Mr. Espy traveled to Arkansas was to be with his girlfriend, Patricia Dempsey, and to attend a birthday party celebration provided by Don Tyson and Tyson Foods."23J.A.421. But this statement addressed the government's theory as to the conspiracy and honest services fraud counts, which the district court dismissed at the close of the government's case. As the government made clear to the jury during closing arguments, Espy's state of mind was irrelevant as to the Meat Inspection Act counts. 23J.A.500.

14. Espy's testimony did not relate in any way to the evidence that Schaffer had Don Allen and the APF drew up phony invoices to make it appear that the APF provided Espy's transportation and lodging when, in fact, Tyson Foods provided those things.

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