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District of Columbia Circuit.
v. Archibald R. SCHAFFER, III,
Appellee/Cross-Appellant.
Decided July 23, 1999. As Amended Sept. 10, 1999.
Before: WALD, SILBERMAN and HENDERSON, Circuit
Judges.
Opinion concurring in part and dissenting in part
filed by Circuit Judge HENDERSON. WALD, Circuit Judge:
FN1.
While Dempsey flew from Washington to Russellville on the Tyson Foods
jet, Secretary Espy came separately from Mississippi, where he had delivered two
commencement addresses. Both Secretary Espy and Dempsey returned to Washington on the
company jet.
FN2.
Although Schaffer did not participate in providing the last two things of value, the jury
heard this evidence of Tyson Foods' total largess as part of the case against Jack
Williams, a lobbyist for Tyson Foods and Schaffer's co-defendant.
During the gift-giving period, USDA officials were at
various stages in the process of developing and implementing initiatives that would
seriously impact the business of Tyson Foods. On February 3, 1993, while accompanying the
Secretary on a fact-finding mission to the area affected by the E coli outbreak, Dr.
Russell Cross (Dr. Cross), the Administrator of USDA's Food Safety and
Inspection Service (FSIS), outlined to an enthusiastic Secretary Espy a series
of policies designed to enhance the safety of meat and poultry products on which FSIS had
been working. The Secretary announced his intention to move forward along the lines of Dr.
Cross's policy proposals at a meeting with industry representatives the following day. On
February 5, 1993, Dr. Cross made a similar presentation before a Senate subcommittee,
announcing a series of initiatives intended to prevent further outbreaks of food poisoning. Dr. Cross outlined a Two-Track approach to
eliminating the presence of pathogens in meat and poultry products. Track 1, aimed at
maximizing the performance of then-existing inspection methods, involved the
implementation of six initiatives. Included among the six, FSIS proposed to enhance its
detection and control measures, to develop quantitative risk analysis, to encourage the
use of technologies that reduce pathogens, and to increase consumer awareness of safe food
practices through disseminating information on how best to handle meat and poultry
products. Track 2, which at that stage was more amorphous than Track 1, called for a
revolutionary redesign of safety programs.
FN3.
The policy apparently acquired this nickname from a March 2, 1993 memorandum that the
Deputy Administrator of FSIS sent to cattle slaughter establishments, requiring them to
trim off any beef contaminated with fecal matter. With respect to such contamination, the
directive concluded, our policy will be zero. See 6/17/98 Transcript
(Tr.) at 433-34.
In response to the independent counsel's
investigation into this concatenation of events, a federal grand jury in the District of
Columbia indicted Schaffer on seven separate counts of a fifteen count indictment on
January 15, 1998. Together with co-defendant Jack Williams, a lobbyist for Tyson Foods,
the indictment charged Schaffer with conspiracy to defraud the United States of the honest
services of Secretary Espy, in violation of 18
U.S.C. § 371; Schaffer was also charged with two counts of
wire fraud, in violation of 18
U.S.C. §§ 1343, 1346;
two counts of providing unlawful gratuities, in violation of 18
U.S.C. § 201(c)(1)(A); and one count of violating the Meat Inspection Act, 21
U.S.C. § 622 (the Act). The indictment additionally alleged that Schaffer
had committed mail fraud, in violation of 18
U.S.C. §§ 1341, 1346. [FN4] The district court dismissed four of
the seven counts at the close of the prosecution's case-in-chief. Following completion of
an eight-day trial, the five remaining counts against Schaffer--one under the Meat
Inspection Act and two for providing unlawful gratuities--were submitted to the jury.
Schaffer was found guilty on two of these counts, first for violating the Meat Inspection
Act [FN5] in conjunction with Secretary
Espy's attendance at the Russellville party, and second for violating the federal gratuity
statute [FN6] through providing tickets to
the inaugural dinner.
FN4.
Jack Williams was also charged with two counts of making false statements to federal
agents in violation of 18
U.S.C. § 1001, and found guilty on each. Because Williams has withdrawn his appeal
from the district court's decision denying his acquittal and new trial motions, our
discussion focuses on Schaffer alone. We mention Williams solely to provide a complete and
accurate portrait of the proceedings before the district court. FN5. 21
U.S.C. § 622 provides: 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 ... 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.
FN6. 18
U.S.C. § 201(c)(1)(A) provides that anyone who otherwise than is provided by law for the proper
discharge of official duty ... directly or indirectly gives, offers, or promises anything
of value to any public official, former public official, or person selected to be a public
official, for or because of any official act performed or to be performed by such public
official, former public official, or person selected to be a public official ... shall be
fined under this title or imprisoned for not more than two years, or both. The statute further defines an official act to include
any decision or action on any question, matter, cause, suit, proceeding or
controversy, which may at any time be pending, or which may by law be brought before any
public official, in such official's official capacity.... 18
U.S.C. § 201(a)(3).
Upon the defendant's subsequent Rule 29 motion for a
judgment of acquittal, the district court set aside the jury's verdict on both counts.
Acknowledging that the jury had heard sufficient evidence to support an inference that
Schaffer had either given, or aided and abetted the giving of things of value to Secretary
Espy, an essential element under each of the criminal statutes, the court nevertheless
concluded that no rational trier of fact could have concluded that Schaffer had acted with
the requisite intent to influence on either occasion. See United
States v. Williams, 29 F.Supp.2d at 6.
[FN7] Using this court's decision in United
States v. Sun-Diamond Growers of California, 138 F.3d 961 (D.C.Cir.1998) (Sun-Diamond
I), aff'd, 526
U.S. 398, 119 S.Ct. 1402, 143 L.Ed.2d 576 (1999) (Sun-
Diamond ), as its point of departure, the court read both the federal gratuity
statute and the Meat Inspection Act as requiring a link between the gifts and an intent to
influence specific official acts of the recipient. Since the trial and the jury
instructions had each revolved around two official USDA policies--i.e.
zero tolerance and safe handling labels--the court examined the nexus between those
policies and the gifts given to Espy to determine if it was strong enough to sustain a
finding of intent to influence an official act (under the gratuity statute) or the
discharge of any duty (under the Meat Inspection Act). Beginning with the gratuities
count, the court asserted that [t]here was no evidence that Mr. Schaffer or anybody
in Tyson Foods knew or anticipated anything about zero tolerance or mandatory safe
handling labels at the time of the inaugural dinner, Williams,
29 F.Supp.2d at 7, because E coli had first been identified as the cause of the deadly
food poisoning outbreak only earlier that day. As for the Meat Inspection Act count, the
court similarly concluded that neither of the two policies could provide the requisite
nexus with the Russellville party; each was disqualified for temporal reasons. In the
court's view, zero tolerance had ceased to be a live issue for meat more than two months
before the weekend gala, and Tyson Foods had yet to voice any objection to the regulation
mandating safe handling labels. See id.
at 7-8. Accordingly, the court granted Schaffer's Rule 29 motion and entered a
judgment of acquittal on each count. Seeking reinstatement of the jury verdict, the
independent counsel appeals from this decision on behalf of the United States.
FN7.
The court conditionally disposed of Schaffer's new trial motion in
a separate and subsequent order. See United States v. Williams, No. 96-0314 (D. D.C. Oct.
6, 1998) (order denying new trial motion). Schaffer had argued that the court erred in
precluding him from eliciting the fact of John and Don Tyson's immunity agreements during
the cross-examination of John Tyson, and that the prosecution had made improper and
prejudicial comments in each of its opening, closing, and rebuttal statements. The court
referenced an earlier trial ruling and its Williams
opinion as the respective grounds for rejecting each of these contentions. See discussion
infra pp. 850-53.
II. DISCUSSION
give[ ], offer[ ], or promise[ ] anything of value to
any public official, former public official, or person selected to be a public official,
for or because of any official act performed or to be performed by such public official,
former public official, or person selected to be a public official.... 18
U.S.C. § 201(c)(1)(A) (emphasis added). As the trial court correctly instructed, a
violation of this statute requires the presence of three separate elements: that the
defendant (i) knowingly gave a thing of value; (ii) to a public official or person
selected to be a public official; (iii) for or because of any official act performed or to
be performed. Since the trial court based its decision vacating the gratuities conviction
upon the third element, properly conceding that the jury had
been presented with sufficient evidence of the first two elements, see Williams,
29 F.Supp.2d at 6, we focus our attention there as well.
FN8.
The specific interpretive methods used by the Sun-Diamond
Court to arrive at its conclusion similarly do not help us in this second- level inquiry.
Neither elementary linguistic analysis, the structure of the gratuity statute or its place
within the larger statutory and administrative fabric regulating gifts to officeholders,
nor the desire to avoid trapping the unwary point towards any specific interpretation of
the degree of proof necessary to satisfy the Court's for or because of a particular
official act language.
FN9. 18
U.S.C. § 201(b)(1) provides in relevant part that whoever directly
or indirectly, corruptly gives, offers or promises anything of value to any public
official or person who has been selected to be a public official, or offers or promises
any public official ... to give anything of value to any other person or entity, with
intent ... to influence any official act ... has committed bribery; while 18
U.S.C. § 201(b)(2) provides in relevant part that whoever being a public official or person selected to be a
public official, directly or indirectly, corruptly demands, seeks, receives, accepts, or
agrees to receive or accept anything of value personally or for any other person or
entity, in return for ... being influenced in the performance of any official act ... has committed bribery.
[5] The two
provisions additionally differ in their temporal focus. Bribery is entirely
future-oriented, while gratuities can be either forward or backward looking. See Campbell,
684 F.2d at 148. In other words, whereas bribery involves the present giving, promise,
or demand of something in return for some action in the future, an unlawful gratuity can
take one of three forms. First, a gratuity can take the form of a reward for past
action--i.e. for a performed official act. See, e.g., id.
at 148-50 (illegal gratuity where construction company
moved the household goods of a judge who had suspended hundreds of its traffic tickets).
Second, a gratuity can be intended to entice a public official who has already staked out
a position favorable to the giver to maintain that position. See Sun-
Diamond, --- U.S. at ----, 119 S.Ct. at 1408 (postulating scenario of gift to
Department of Justice antitrust appointee who had publicly indicated support of the giving
company's pending merger because of anticipated continued future support). Finally, a
gratuity can be given with the intent to induce a public official to propose, take, or shy
away from some future official act. See, e.g., United
States v. Sawyer, 85 F.3d 713 (1st Cir.1996) (gifts to legislators who had ability to
affect company's ongoing legislative concerns constitute unlawful gratuities under
analogously worded Massachusetts statute). This third category would additionally
encompass gifts given in the hope that, when the particular official actions move to the
forefront, the public official will listen hard to, and hopefully be swayed by, the
giver's proposals, suggestions, and/or concerns.
FN10.
Since the district court instructed the jurors that they could find Schaffer guilty for
aiding and abetting either of the counts charged, we use the phrase knowingly aided
and abetted the provision of as a shorthand for the full set of instructions that
follow. [ ] You may find the defendants or either of them
guilty of the Meat Inspection Act and gratuities counts charged without finding that they
personally committed each of the acts that made up the crime or that they were present
while the crime was being committed. Any person who in some way intentionally participates
in the commission of a crime aids and abets the principle offender.... To find that a defendant aided and abetted in
committing a crime, you must find that the defendant knowingly associated himself with the
persons who committed the crime, that he participated in the crime as something he wished
to bring about, and that he intended by his actions to make the crime succeed. Now, some affirmative conduct by the defendant to
help in planning or carrying out the crime is necessary.... It is sufficient if you find
beyond a reasonable doubt that the crime was committed by someone and that the defendant
in question knowingly and intentionally aided and abetted the principal
offenders in committing the crime. 6/25/98 Tr. at 1780-81.
[7] The
core dispute on the evidentiary sufficiency of the nexus, however, cannot be disposed of
as easily. Because of its subjective focus on the motivation behind Tyson Foods' largess,
it necessitates a more extensive discussion. In assessing the sufficiency of the evidence
presented as to whether Schaffer acted with the requisite intent to influence a particular
official act, we begin with the recognition that any attempt to reduce the gratuity
statute's nebulous for or because of language into a more concrete formulation
will necessarily be imperfect. When faced with competing explanations for some specific
conduct, conduct which could be either innocuous or illicit depending upon the particular
motivation involved, the inquiry will rarely be clean or neat. Both common sense and
practical experience, each of which we ascribe to the jury, instruct that human beings
rarely act for a single purpose alone. Rather, activity is more typically multi-causal,
and directed towards achieving several rather than a single end[s]. Accordingly, we do not
view the question of intent in the Manichean terms of the prosecution and the defense,
focusing instead upon the more realistic and probative question of whether the acts in
question were substantially, or in large part motivated by the requisite intent to
influence the Secretary. As a final caveat, we note that as
with most cases in which the defendant's state of mind is at issue, it may be near
impossible to establish the requisite mens rea through direct evidence. In the absence of
any specific statement or other contemporaneous documentation of the defendant's
subjective motivation, the trier of fact can do no more than ascribe an intent on the
basis of the circumstances surrounding the defendant's actions. See, e.g., United
States v. Woodward, 149 F.3d 46, 57 (1st Cir.1998) (in assessing whether defendant
sought to influence official acts, [t]he jury was entitled to infer the defendant's
intent from the circumstances surrounding his actions, from indirect, as opposed to
direct, evidence) (citation omitted); Chedick
v. Nash, 151 F.3d 1077, 1083 (D.C.Cir.1998) (despite absence of smoking gun, jury
entitled to infer intent to defraud from circumstantial evidence); United
States v. Castellanos, 731 F.2d 979, 984 (D.C.Cir.1984) (no legal distinction is
made between circumstantial and direct evidence in determining whether sufficient evidence
supports the verdict).
FN11.
At oral argument, the independent counsel additionally referenced the Texas
Food Industry Assoc. v. USDA opinion, 842 F.Supp. 254, 256 (W.D. Tex.1993), wherein
the district court had enjoined enforcement of the safe handling labels emergency interim
regulation for failing to satisfy the good cause exception to the Administrative Procedure
Act's notice and comment requirement. See 5
U.S.C. § 553(b). This decision had been introduced into evidence during Jack
Williams's defense, and his counsel had read a portion of it to the jury. See 6/24/98 Tr.
at 1573-74. In a separate part of that opinion, the court quotes from the
Background and New Policy Direction sections of the USDA's interim
rule published in the Federal Register. See 58
Fed.Reg. 43,478 (August 16, 1993). There, the USDA noted that [a]gency official
[sic] in early January began to advocate in their speeches and writings that mandatory
safe handling instructions on the labeling of meat and poultry products was a necessary component of a program to combat foodborne
illness. Id.
at 43,481, quoted in Texas
Food Industry, 842 F.Supp. at 258. From this passage, completely unrelated to the
language for which the opinion had been introduced on Williams's behalf, the independent
counsel alleges that the jury could infer that Schaffer and Tyson Foods were aware of the
USDA's intent to act on this issue at the time of the inaugural dinner. While we are
skeptical of the independent counsel's assertion that the jury considered this
non-highlighted language in assessing the case against Schaffer, even assuming that it
did, the language does not support the proposition for which the independent counsel cites
it. Simply put, the vague temporal reference to agency official[s] advocating
mandatory safe handling instructions in early January is not sufficient to
establish that the USDA had in fact officially initiated a program of promoting safe
handling labels, let alone that Tyson Foods had been privy to the relevant writings or
speeches, before the time when Tyson Foods offered the inaugural tickets to Secretary
Espy.
Once the E coli outbreak is out of the picture, all
that remains is an awareness by a regulated entity that the USDA had been developing a new
pathogen control policy. [FN12] In our
opinion, the inferential leap across the chasm separating this premise from the requisite
conclusion--that the tickets were intended, beyond a reasonable
doubt, to induce Espy to propose, take, or shy away from some action on zero tolerance, or
alternatively to ensure that Tyson Foods' proposals, suggestions and/or concerns were
accorded special scrutiny--cannot be considered reasonable. The breadth of the Supreme
Court's Sun-Diamond
opinion with respect to identifying a particular official act must of necessity spill over
here, creating the need for a more definitive link than the prosecution provided. To hold
otherwise would mean that any time a regulated entity became aware of any inchoate
government proposal that could affect its interests, and subsequently provided something
of value to a relevant official, it could be held to violate the gratuity statute in the
event that the inchoate proposal later appeared in a more concretized form. Were the
inferential leap from this scenario to an intent to influence considered reasonable, we
would in effect revive the status-based reading of the gratuity statute the Court so
roundly rejected in Sun-Diamond.
We balk at any such end run.
FN12.
The jury was not presented any evidence that Schaffer, as opposed to Tyson Foods, was
actually aware of the anticontamination or safe handling initiatives prior to the February
4th meeting with Secretary Espy.
2. The Meat Inspection Act and the Russellville
Birthday Party
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 ... officer or employee of the United States authorized to perform any
of the duties prescribed by this subchapter ... 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.... (Emphases added). Similar to the gratuities
prohibition, a violation of this statute requires the presence of three separate elements:
the defendant must have (i) directly or indirectly given (or aided and abetted the giving
of); (ii) a thing of value to a covered official; (iii) with the intent to influence the
discharge of any official duty under the Meat Inspection Act. [FN13] The Act clearly applies to Tyson Foods, as its Beef and Pork
Division accounted for eight to ten percent of its overall business. See 6/19/98 Tr. at
910. As with the unlawful gratuities count, the core of the dispute
centers around whether the prosecution presented sufficient evidence for a reasonable jury
to conclude that Schaffer acted with the requisite intent to influence any of the
Secretary's duties under the Meat Inspection Act.
FN13.
The terms of the Act apply to all cattle, sheep, swine, goats, horses, mules, and other
equines, and to meat products derived therefrom. See 21
U.S.C. §§ 603-624.
Again, we first address a preliminary issue of
statutory construction. With respect to the requisite intent, the language of the Meat
Inspection Act differs in material ways from that of the federal gratuity statute. Whereas
the Meat Inspection Act expressly requires an intent to influence the discharge of
any duty under the Act, an unlawful gratuity requires that the thing of value be
given for or because of any official act performed or to be performed. While
this linguistic distinction might appear minor when viewed in isolation, the place that
these two provisions occupy within their respective statutory schemes magnifies the
textual difference in important respects. See Conroy
v. Aniskoff, 507 U.S. 511, 515, 113 S.Ct. 1562, 123 L.Ed.2d 229 (1993) (the
meaning of statutory language, plain or not, depends on context). [FN14] In its Sun-Diamond
opinion, the Court emphasized the structure of the gratuity statute, focusing upon the
explicit definition given the statutory term official
act and the consequences that logically followed from that particular wording. The
need for an explicit link with a specific act flowed directly from this statutory
language, as the gratuity provision's insistence upon an 'official act,' carefully
defined, [FN15] ... [required] that some
particular official act be identified and proved. 526
U.S. at ----, 119 S.Ct. at 1407. In the absence of this limiting principle, the Court
recognized, the gratuity statute would unwittingly displace much of the elaborate
statutory and administrative regime otherwise regulating the enrichment of public
officials. See id.
at 1410.
FN14.
Although the Court's Sun-Diamond
decision speaks only to the federal gratuity statute, the interpretive methods utilized
therein, around which we shape our discussion, are nevertheless instructive. In contrast
to our dissenting colleague, we believe that the Sun-Diamond
decision suggests a holistic approach to interpreting statutes that regulate gift- giving,
and that it counsels an inquiry that extends beyond merely reading the word
any to mean some particular. See Dissenting Opinion (Diss.
Op.) at 854.
FN15.
See supra n. 6.
By way of comparison, the
Meat Inspection Act can be seen as having both a more limited and a more expansive focus.
On the one hand, the scope of its gratuity provision is circumscribed by the narrow class
of individuals upon which it operates. By definition, the statute covers only two
categories of persons: officials with duties under the Meat Inspection Act, and those
seeking to influence these officials in the discharge of their duties. In this sense, the
Meat Inspection Act exemplifies what the Sun-Diamond
Court called a targeted prohibition; it does not threaten, as did the federal
gratuity statute, to make misfits out of other pieces of a complex regulatory
puzzle. [FN16] Id.
Within the narrow range of meat-related activities it covers, however, the Act's gratuity
provision is actually more expansive than the general gratuity statute, as it seemingly
can be triggered without reference to a particular official act. The Meat Inspection Act
lacks a counterpart to the careful definition that the gratuity statute gives the term
official act, the very statutory language upon which the Sun-Diamond
Court so heavily relied in requiring a particularized nexus. In fact, the Act does not
place any restrictive definitional gloss upon what constitutes the discharge of any
duty under the Act, allowing the ordinary meaning of those terms to govern the
interpretation. See United
States v. Espy, 145 F.3d 1369, 1371 (D.C.Cir.1998) (a duty is
something that one is expected or required to do by moral or legal obligation)
(citation omitted). FN16.
Nothing in the language or structure of the Meat Inspection Act limits its proscription to
the giving of bribes, as opposed to gratuities, as our dissenting colleague appears to
suggest. See Diss. Op. at 855. While we have previously held that bribery requires a
defendant to act corruptly, see United
States v. Gatling, 96 F.3d 1511, 1522(D.C.Cir.1996), the Act speaks only of acting
with an intent to influence, the scienter requirement associated with an
unlawful gratuity. See id.
As our own Espy
opinion indicates, the duties of the Agriculture Secretary under the Meat Inspection Act
are manifold. See id.
As part of the Secretary's general obligations to protect the health and welfare of the
consuming public from unwholesome or adulterated meat, the Act directs that the Secretary
shall make such rules and regulations as are necessary for the efficient
execution of its provisions, 21
U.S.C. § 621, and shall cause the inspection, in accordance with such rules and
regulations, of all meat carcasses capable of use as human food, see 21
U.S.C. § 604, the inspection of all meat food products prepared for commerce, see 21
U.S.C. § 606, and inspections of all establishments where meat is slaughtered,
salted, packed, or rendered. See 21
U.S.C. § 608. The Secretary's duty to make all necessary
rules and regulations lacks the particularized focus of the term official act,
whether or not the Secretary were to take certain official acts in fulfilling this duty.
These duties extend beyond the mere development and promulgation of food safety
regulations, and encompass an ongoing obligation to ensure enforcement in conformity
therewith. Accordingly, one could unlawfully attempt to influence the Secretary in the
discharge of his broad-based duties without identifying any particular policy then at the
regulatory fore. The offender might seek to ensure that his company's interests were
addressed by whatever decisions or policies ultimately moved up the agency's radar screen,
or want simply to affect a pro-enforcement or deregulatory tilt, and a more favorable
attitude toward all regulatees. We belabor these obvious points because they illustrate
the ways in which the Meat Inspection Act's gratuity prohibition is more expansive, both
substantively and temporally, than the general federal gratuity statute under the Supreme
Court's Sun-Diamond
decision. Given the motivating force behind the Meat Inspection Act--i.e., a congressional
desire to address the outrageous sanitary conditions documented in Upton Sinclair's book
The Jungle--the breadth of its gratuity provision is unsurprising. See Espy,
145 F.3d at 1371.
FN17.
Since a violation of the Meat Inspection Act, in contrast to the general gratuity statute,
additionally requires a link between the favor and a policy that specifically affects
meat, the prosecution sought to make this connection as well.
[11] The
district court rejected the jury verdict on two separate grounds, corresponding to the two
identified official acts, each of which we address in turn. First, the court noted that
although the Secretary had announced his intent to move forward with the labeling
initiative at his February 4th meeting with industry representatives, he did not
promulgate the interim regulation until three months after the Russellville party. See Williams,
29 F.Supp.2d at 7. Once the proposal had moved to the regulatory forefront in the
aftermath of the January 1993 E coli outbreak, however, we do not see how the precise
timing of its official publication undercuts an inference that Tyson Foods hoped to
influence its final form through bestowing largess. The district court's conclusion,
echoed by our dissenting colleague, see Diss. Op. at 855, presumably picked up on
Schaffer's argument that Tyson Foods did not oppose the labeling proposal prior to its
August promulgation, and even then only objected to its stringent timing requirements, not
to its substance. But again, we do not regard the timing sequence as negating a reasonable
inference of intent, particularly under the deferential
standard we use in reviewing a jury's verdict of guilt. The statute requires an intent to
influence, not an attempt to block or to eviscerate some particular official act. In fact,
the economics of predatory practices instructs that larger companies may support and
encourage stringent new regulations, as the marginal cost of complying with a regulation
will typically be higher for small companies. See generally, Ann P. Bartel & Lacy
Glenn Thomas, Predation through Regulation: The Wage and Profit Effects of the
Occupational Safety and Health Administration and the Environmental Protection
Agency, 30 J.L. & Econ. 239 (1987). Additional regulation can thus help to
undermine competition, and this fact of business life severs any necessary link between
opposition and influence. Since the requisite intent under the statute can appear in many
forms, we find it irrelevant under the statute whether the party providing the gratuity
hoped to induce or to discourage an official act, or even to encourage the recipient to
adhere to the status quo.
FN18.
Contrary to the dissent's suggestion, see Diss. Op. at 855 n.*, all of the evidence we
recount here involves the USDA's policy of zero tolerance for meat. We are not concerned
with, and in no way rely upon, the course of the USDA's zero
tolerance proposal for poultry.
In the absence of any direct statement by Schaffer or
Tyson Foods that Espy's attendance at the Russellville party had been substantially
motivated by an intent to influence the Secretary, we assess the rationality of the jury's
verdict by examining the evidence before it. Our reading of the record reveals that
Schaffer and other officials at Tyson Foods had extensive communications with the
Secretary and his staff, in each of which they sought to persuade USDA to shift a pending
policy in one direction or another. With respect to the safe handling label issue alone,
the prosecution introduced a series of written communications seeking to sway the USDA,
each of which, in some form, had gone through Schaffer. The jury had before it: (i) a
letter from the Foods Regulation Manager and the VP of Operations, Beef and Pork Division
at Tyson Foods to Secretary Espy, coupled with testimony that Schaffer reviewed every such
document directed at government officials and the public, see GX130, 6/23/98 Tr. at 1290;
(ii) a letter from Senator Dale Bumpers (essentially drafted by Tyson Foods) to Secretary
Espy and to Vice President Gore, copies of which were simultaneously sent to Schaffer,
along with testimony regarding contemporaneous communications between Schaffer and Senator
Bumpers's office about the issue, see GX131, GX131A, 6/19/98 Tr. at 848-52, 6/23/98 Tr. at
1273-75; and (iii) a letter on the labeling issue from Jack
Williams to the point-man for the White House with whom the Secretary was in close
contact. See GX136, GX138. In addition, the jury heard testimony from George Watts,
President of the National Broiler Council, about an August meeting that he, Schaffer, and
two others had scheduled with Secretary Espy to discuss the labeling issue. Watts
additionally admitted to drafting a pre-meeting memorandum wherein he communicated to the
participants the general impropriety of discussions between the Secretary and industry
representatives about regulations in the rulemaking stage, and the correlative need to
tiptoe around the issue. See 6/18/98 Tr. at 629-39, GX124. Finally, Patricia Dempsey
testified that she witnessed John Tyson confront Secretary Espy about the labeling issue
at a September 1993 reception, seeking to persuade him of the need to alter the rule. See
6/22/98 Tr. at 1095.
The credibility of a witness may be attacked or
supported by evidence in the form of opinion or reputation, but
subject to these limitations: (1) the evidence may refer only to character for
truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only
after the character of the witness for truthfulness has been attacked by opinion or
reputation evidence or otherwise. Fed.R.Evid.
608(a). The rule appears inapplicable, both facially and structurally, to the
testimony that Schaffer sought to introduce. Turning to the language of Rule
608(a), the existence of John and Don Tyson's immunity agreements constitutes neither
opinion nor reputation evidence, the only two subjects mentioned therein. Moreover, as the
rule speaks in general terms of a witness's character for truthfulness or untruthfulness,
it does not touch upon the separate question of whether a generally truthful witness may
have a motive to lie in one specific instance. See United
States v. Lindemann, 85 F.3d 1232 (7th Cir.1996) (distinguishing five acceptable
methods for attacking a witness's credibility, two of which are attacking the witness's
character for truthfulness and demonstrating bias); 27 Wright and Gold, Federal Practice
and Procedure § 6094 (1990) (same). As the Advisory Committee Notes to Rule
608 explains, while evidence of a witness's general character for honesty or integrity
can provide de minimis support for a conclusion as to whether he is testifying accurately
on a particular occasion, the probative value of such testimony will generally be
outweighed by the needless consumption of time involved in
putting good character witnesses on the stand. See Fed.R.Evid.
608(a) advisory committee's note. Accordingly, the Federal Rules allow the
introduction of opinion or reputation testimony to attack a witness's credibility, but
limit such good character testimony to situations where the witness's veracity has already
been specifically impugned. In contrast to a witness's general character for truthfulness
or untruthfulness, which is largely peripheral to the facts at issue in a given case, the
question of a witness's potential bias is both particularized and case-specific. The
presence or absence of bias has relevance because it speaks to whether a witness has an
interest in this case, or a particular affinity or dislike for this party. See United
States v. Abel, 469 U.S. 45, 51, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984) (A
successful showing of bias on the part of a witness would have a tendency to make the
facts to which he testified less probable in the eyes of the jury than it would be without
such testimony.); United
States v. Akitoye, 923 F.2d 221, 225 (1st Cir.1991) (if the cross-examiner may bring
out facts tending to show bias, it follows that the cross-examiner can be allowed
some latitude, in an appropriate case, to bring out the absence of bias-producing facts
and circumstances, thereby strengthening the credibility of a helpful witness). In
light of its disparate focus, we do not see why Rule
608(a) would apply.
FN19.
In its opening remarks, the prosecution referenced Tyson Foods' desire to get
cozy with Secretary Espy four times. While it directly modified this statement on
two occasions by stating that gifts were given in order to get cozy so that they
would influence the Secretary of Agriculture in the performance of his duties, 6/16
Tr. at 100, 99, the independent counsel did speak only of getting cozy during
the other two. In its closing rebuttal statement, the independent counsel also made the
following remark: What the defendants did here, we submit, should not
be tolerated. You will decide by your verdict what the standard
is. The defendants are guilty beyond a reasonable doubt of the charges contained in the
indictment. The question is, do you want lobbyists for regulated industry to give anything
to an official that regulates your food supply when so much is at stake? See 6/25/98 Tr. at 1765-66. Defense counsel
immediately objected, and the court sustained the objection and instructed the jury to
disregard the statement.
[15] To
determine whether improper prosecutorial statements prejudiced a defendant's right to a
fair trial, this court generally considers four separate factors. We examine: (i) the
severity of the misconduct; (ii) the measures taken to cure the misconduct; (iii) the
certainty of conviction absent the improper misconduct, see United
States v. Perholtz, 842 F.2d 343, 361 (D.C.Cir.1988); and (iv) the centrality of the
issue affected by the error. See United
States v. Gartmon, 146 F.3d 1015, 1026 (D.C.Cir.1998). Reviewing the trial record as a
whole, as required by this fact-intensive inquiry, we do not believe that the jury was
substantially swayed by the independent counsel's isolated missteps. In their opening and
closing remarks, both the prosecution and the defense continually stressed to the jury the need to link the things of value with an intent to influence
Secretary Espy. See, e.g., 6/26/98 Tr. at 100, 103, 115, 125, 130, 135; 6/25/98 Tr. at
1703, 1717, 1726, 1729, 1737, 1742, 1766. The district court did the same in its
instructions to the jury, repeatedly emphasizing that Schaffer could not be found guilty
of the offenses charged unless he acted with the requisite intent to influence the
Secretary. See 6/26/98 Tr. at 1778-80, 1788. From start to finish, this question of intent
had center stage at the trial. Because we have no doubt that the jury understood and
deliberated on the basis of the proper legal standard, we cannot say that any of the
statements in question had any effect on the jury verdict, substantial or otherwise.
I concur in the majority's holding that the gratuity
verdict is not supported by the evidence but I disagree with its reversal of the district
court's judgment of acquittal on the Meat Inspection Act count. I believe, like the
district court, that the government failed to adduce evidence to support a finding of
intent to influence discharge of a specific duty under the Meat Inspection Act, as
required by the United States Supreme Court's decision in United
States v. Sun-Diamond Growers of Calif., --- U.S. ----, 119 S.Ct. 1402, 143 L.Ed.2d 576
(1999). Therefore, I would uphold the district court's judgment of acquittal on each
count of conviction.
FN*
As the majority notes, a zero tolerance policy for meat had already been adopted in
February 1993. See Maj. Op. at 837, 844. To the extent the evidence shows an intent to
influence a zero tolerance policy for poultry, it cannot support a violation of section 22
of the Meat Inspection Act which criminalizes only gifts to influence the discharge of a
duty under the Meat Inspection Act. Poultry labeling is not a duty under
the Meat Inspection Act, which governs only meat and meat food products, see 21
U.S.C. §§ 602, 603,
defined as any product capable of use as human food which is made wholly or in part
from any meat or other portion of the carcass of any cattle, sheep, swine, or goats,
id. § 601(j) does not govern poultry.
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