TABLE OF CONTENTS

TABLE OF AUTHORITIES

CONCISE STATEMENT OF THE ISSUES AND THEIR IMPORTANCE

1. The Decision substantially and improperly raises the Government's burden in prosecuting an illegal gratuity to a government official under 18 U.S.C. § 201(c)(1)(A). It directly conflicts with a Supreme Court decision (Standefer v. United States, 447 U.S. 10 (1980)); the decisions of at least four other circuits (United States v. Umans, 368 F.2d 725, 730 (2^nd Cir. 1966); United States v. Standefer, 610 F.2d 1076, 1080 (3^rd Cir. 1978) (en banc), aff'd 447 U.S. 10, 100 S.Ct. 1999, 64 L.Ed.2d 689 (1980); United States v. Bustamante, 45 F.3d 933, 940 (5^th Cir. 1995); United States v. Evans, 572 F.2d 455, 480 (5^th Cir. 1978); and United States v. Alessio, 528 F.2d 1079, 1082 (9^th Cir. 1976)); and earlier decisions of this circuit (United States v. Brewster, 506 F.2d 62 (D.C. Cir. 1974) and United States v. Campbell, 684 F.2d 141 (D.C. Cir. 1982)).

Contrary to all previous law on the subject, which holds that the Government need only show the donor's intent to curry the official's favor and goodwill generally, the Decision now requires that a gratuity in the District be linked to a "specific" past act or a "concrete" future act of the public official, and thereby blurring the distinction between gratuities and bribes. Slip Opinion at pp. 7-8.

This interpretation has enormous implications for future enforcement of the gratuity statute, offering future wrongdoers the opportunity to evade the statute simply by linking their gratuities to "generalized sympathy" rather than to specific acts. Furthermore, it sets a standard for the gratuities law in the nation's capital that is inconsistent with, and notably more lenient than, the standard elsewhere in the country.

2. The Decision reversed the sentencing decision through de novo review of the district court's upward departure, even though the Supreme Court expressly held only two years ago that any appellate review of a departure decision must be confined to an abuse of discretion standard. In so doing, the Decision thwarted the intention of Congress, as interpreted by the Supreme Court, that the discretion in this matter should lie with the district courts, which have day-to-day experience in sentencing matters.

I. THE GRATUITIES STATUTE DECISION REQUIRES REHEARING BECAUSE IT IS INCONSISTENT WITH THE DECISIONS OF THE SUPREME COURT, OTHER CIRCUITS, AND THIS COURT⁽¹⁾

The Decision directly conflicts with the decisions of at least four other Circuits, and -- most importantly -- the express holding of the Supreme Court, which affirmed one of those Circuit decisions. United States v. Standefer, 610 F.2d 1076 (3^rd Cir. 1978) (en banc), aff'd 447 U.S. 10, 100 S.Ct. 1999, 64 L.Ed.2d 689 (1980). The Decision is also inconsistent with other decisions of this Court and internally inconsistent. Rehearing, or rehearing en banc, is required because the Decision will severely hamper future enforcement of the illegal gratuity statute. See, e.g., Church of Scientology of California, 792 F.2d 153, 155 n. 1 (D.C. Cir. 1986) (en banc) (usual purpose of en banc review is "the establishment of legal rules for future guidance.")

The gratuity statute forbids gratuities given to public officials "for or because of any official act performed or to be performed by such public official . . . ." Under the Decision, it is not enough for the Government to prove that the giver sought to curry the "generalized sympathy" of a public official who regulates the giver's business⁽²⁾ -- even though, of necessity, such gratuities would have been given for or because of the official acts that the official was in a position to perform. Rather, under the Decision, the Government must tie the gratuities to a "concrete" (Slip Opinion at p. 7) or "specific" (Slip Opinion at p. 8) act. This result simply invites future givers of gratuities to lavish their largesse on government officials in a generalized fashion as a ploy to evade prosecution.

A. THE DECISION DIRECTLY CONFLICTS WITH A DECISION OF THE SUPREME COURT

The Decision frankly acknowledges that it creates an irreconcilable split among the circuits that have considered how the Government should satisfy the "official acts" requirement, and cites contrary decisions from the Second, Third, Fifth, and Ninth Circuits. Slip Opinion at p. 11. The Decision's direct rejection of the Third Circuit's decision in United States v. Standefer, 610 F.2d 1076 (3^rd Cir. 1978) (en banc), aff'd 447 U.S. 10, 100 S.Ct. 1999, 64 L.Ed.2d 689 (1980), distances this circuit not only from these other circuits but also from the Supreme Court.

In Standefer, the Supreme Court endorsed the broader interpretation of § 201 that the Decision rejected in this case. On appeal, Standefer challenged the jury instructions on the same ground the defendant has raised in this case, that the instructions failed to require proof that he gave the gratuities as a reward for or to influence official acts. United States v. Standefer, 610 F.2d 1076, 1080 (3d Cir. 1979) (en banc). The Third Circuit, sitting en banc, rejected the defendant's argument, declaring that "[a]ll that was required in order to convict Standefer was that the jury conclude that the gifts were given by him for or because of [the official's] official position, and not solely for reasons of friendship or social purposes." Id.

The Supreme Court expressly affirmed the Third Circuit's interpretation of § 201 and the district court's jury instructions:

Petitioner also challenges the instructions to the jury on criminal intent. We agree with the Court of Appeals that the instructions were correct.

Standefer v. United States, 447 U.S. 10, 14 n.8 (1980).

Standefer had sought Supreme Court review of, inter alia, the propriety of the gratuity jury instructions. In his opening merits brief, Standefer argued that the district court's gratuity instructions were erroneous because "[t]he charge that it was sufficient if the payments were paid for any reason in connection with the audits was tantamount to a directed verdict of guilty and did not consider the defense that the golf trips were taken for friendship and were not within the purview of the criminal statutes." Brief of Petitioner, No. 79-383, Standefer v. United States, at 42 (available on LEXIS).⁽³⁾ The United States responded that the jury instructions were correct because the gratuity statute is "designed to prevent officials from being tempted by unauthorized compensation -- even if in particular circumstances the temptation is resisted." Brief of United States, No. 79-383, Standefer v. United States, at 60 (available on LEXIS). In his reply brief,⁽⁴⁾ Standefer relied on this court's decision in United States v. Brewster, 506 F.2d 62 (D.C. Cir. 1974), to argue that the jury instructions were erroneous. Reply Brief of Petitioner, No. 79-383, Standefer v. United States, at 9-13 (available on LEXIS).

The Decision in the present case holds that the jury instructions given on the gratuities count case were fatally defective, requiring reversal of defendant's conviction, because "they invited the jury to convict on materially less evidence than the statute demands . . . ." Slip Opinion at p. 12. But these jury instructions, as the chart below demonstrates, closely paralleled the Standefer instructions, which the Supreme Court expressly approved:

The Supreme Court's approval of these instructions drives home the difficulties created by the Decision's explicit rejection of Standefer and the similar decisions in the other circuits.

B. THE DECISION DIRECTLY CONFLICTS WITH THE DECISIONS OF AT LEAST FOUR OTHER CIRCUITS

The Decision candidly acknowledges that it creates a significant circuit split, recognizing contrary decisions in the Second, Third, Fifth, and Ninth Circuits.⁽⁷⁾ Slip Opinion at p. 11. For that reason alone, this case merits rehearing or rehearing en banc.

The decisions in these other circuits all appear to recognize, as the Decision does not, that:

The purpose of these statutes is to reach any situation in which the judgment of a government agent might be clouded because of payments or gifts made to him by reason of his position "otherwise than as provided by law for the proper discharge of official duty." Even if corruption is not intended by either the donor or the donee, there is still a tendency in such a situation to provide conscious or unconscious preferential treatment of the donor by the donee, or the inefficient management of public affairs. These statutes . . . are a congressional effort to eliminate the temptation inherent in such a situation . . . .

Evans, 572 F.2d at 480.⁽⁸⁾ Interestingly, the Evans decision cites this court's decision in United States v. Brewster, 506 F.2d 62 (D.C. Cir. 1974), for the proposition that "[t]he gravamen of each offense . . . is not an intent to be corrupted or influenced, but simply the acceptance of unauthorized compensation." Id. at 481. And the Brewster decision, in turn, noted that "[w]e do not necessarily disagree with the analysis of the Second Circuit in Umans," 506 F.2d at 73, n.26, even though Umans is one of the out-of-circuit cases now expressly rejected.

Thus, everywhere in the nation,⁽⁹⁾ except now in the District of Columbia, it is a gratuity offense to give a federal official a gift to create "goodwill" or "a better atmosphere." In the District, however, any entity wishing to purchase governmental favor has been advised by this court to attach a label to its gifts stating "for general sympathy only," and to challenge the prosecution to prove otherwise.

C. THE DECISION ALSO CONFLICTS WITH EARLIER DECISIONS OF THIS COURT

Not surprisingly, given the distance the Decision strays from the law elsewhere in the nation, it is also inconsistent with earlier precedent in this circuit, which it unsuccessfully tries to harmonize, rendering an already difficult area of the law even more opaque. In United States v. Campbell, 684 F.2d 141, 149-150 (D.C. Cir. 1982), concerning a judge's receipt of gratuities, this court rejected defendant's "somewhat startling claim" that a charge that defendant was seeking "lenient treatment" was insufficient under the statute. In so doing, this court distinguished its earlier decision in United States v. Brewster, 506 F.2d 62 (D.C. Cir. 1974), upon which the Decision heavily relies, noting that in Brewster the gratuities were campaign contributions to an elected official, so that Brewster reflects the "thin but necessary line that must be drawn between campaign contributions and improper gratuities." 648 F.2d at 150, n.16.

The Decision characterizes Campbell as disappointing any "expectation" that Brewster suggested "a readiness to jettison the intent requirement in cases involving appointed officials." Slip Opinion at p. 9. It is highly unlikely that anyone expected the courts to jettison the statutory requirement that a gratuity be given "for or because of any official act." What Campbell did eliminate (if the matter was in doubt after Brewster), but the Decision in this case has now reinstated, is a requirement that a gratuity that is not a campaign contribution be linked to a "concrete" or "specific" act.

D. THE DECISION IS INTERNALLY INCONSISTENT

Considered in isolation, the Decision is internally inconsistent. In rejecting Sun-Diamond's "broader argument,"⁽¹⁰⁾ the Decision properly held that the jury was not required to find that the gratuity was conferred with specific knowledge of a definite official action for which compensation was intended, and concludes that "the jury is required to find the requisite intent to reward past acts or to make future ones more likely." Slip Opinion at p. 13  (emphasis added). But a few pages earlier, addressing the jury instructions, the Decision holds that "the giver must intend . . . to reward some past concrete official act or acts, or to enhance the likelihood of some future act or acts," Slip Opinion at p. 7 (emphasis added), and that "a gift looking to future acts can be an unlawful gratuity where the giver is motivated by the desire to increase the likelihood of one or more specific favorable acts," Slip Opinion at p. 8 (emphasis added). Future trial courts will undoubtedly face nearly insurmountable difficulties as they try to instruct juries that they must find that gratuities were given for "concrete" past acts or "specific" future acts, but that they need not find that the gratuities were given with "specific knowledge" of any intended "definite official action," but only to make "future [acts] more likely," although "generalized sympathy" does not suffice.

The inconsistent holdings of the Decision raise the danger that in the future courts will have great difficulty in distinguishing between gratuities and bribes. If the jury is instructed that it must find a connection between the gift and a "specific" or "concrete" act, it will be difficult if not impossible for it to differentiate between an illegal gratuity and a bribe. The bribery offense, which carries a punishment of 15 years imprisonment, requires an "intent to influence" (18 U.S.C. § 201(b)(1)(A)); the gratuity offense, which carries a punishment of 2 years imprisonment, does not (18 U.S.C. § 201(c)(1)(A)). But according to the decision, "those gifts would not be illegal gratuities, unless the jury found that Douglas sought this generalized sympathy to influence Espy to perform one or more official acts sometime in the future." Slip Opinion at p. 9-10 (emphasis added).

E. CONCLUSION -- THE DECISION UNDERMINES ENFORCEMENT OF THIS IMPORTANT STATUTE

The Decision in this case is contrary to controlling Supreme Court precedent and creates a significant (and acknowledged) circuit split on the interpretation of an important federal criminal statute. Moreover, the unfortunate result of the Decision is that the law in the District of Columbia Circuit, the seat of the federal government, is significantly more tolerant of gratuities to federal officials than in any other part of the country. It is astonishing that a gratuity that would be illegal if given to a minor federal official in a local office somewhere else in the country nonetheless would be legal if conferred upon a Cabinet Secretary in Washington. The Decision stands as a virtual invitation to regulated entities to flood government offices in the District with gratuities earmarked for general goodwill and "generalized sympathy." The confused state of the law that the Decision engenders undermines enforcement and complicates the lives of those who would try to stay within its strictures.

Ultimately, the Supreme Court may be required to reaffirm its decision in Standefer and resolve the conflict the Circuit's Decision created. Before that occurs, the Government respectfully submits, the panel or the court en banc should rehear the Decision on this important issue of federal criminal law and government integrity.

II. THE SENTENCING DECISION REQUIRES REHEARING BECAUSE IT IMPERMISSIBLY ENCROACHES ON THE DISTRICT COURT'S DISCRETION TO CHOOSE AN UPWARD DEPARTURE IN SENTENCING⁽¹¹⁾

In reversing the district court's upward departure in sentencing, the Decision openly oversteps the Supreme Court's unambiguous limitations on the exercise of appellate power. Specifically, the Decision reviews de novo the district court's decision to depart from the Sentencing Guidelines. Slip Opinion at p.  25. But the Supreme Court could not have been clearer: "The appellate court should not review the departure decision de novo, but instead should ask whether the court abused its discretion." Koon v. United States, 116 S. Ct. 2035, 2043 (1996) (emphasis added).

The Decision tries to justify the use of a de novo standard by noting that whether a factor should ever be considered is a purely legal question that can be reviewed de novo. Slip Opinion at p. 25, citing Koon, 116 S.Ct. at 2047. That is not the issue under review here. The Sentencing Guidelines specifically list the proscribed factors, id. at 2044, and the status of the official receiving a gratuity is not among them. The issue under review is whether the Secretary of Agriculture is a sufficiently important public official to justify a departure when the court sentences a defendant convicted of giving him a gratuity.⁽¹²⁾

The Decision recognizes that the question under review is not one of law but one of "degree." Id. at 25, 27, 29. Nevertheless, it proceeds with a de novo analysis on the theory that the determination of whether a Cabinet Secretary's status should affect the sentence is a "onetime issue" that is "hardly the sort of fact-intensive issue calling for extreme deference." Id. at 26. However, the Supreme Court in Koon foreclosed any such attempt to analogize a departure analysis to a legal question:

The Government seeks to avoid the factual nature of the departure inquiry by describing it at a higher level of generality linked closely to questions of law. The relevant question, however, is not . . . whether a particular factor is within the heartland, as a general proposition, . . . but whether the particular factor is within the heartland given all the facts of the case.

Id. at 2048 (quotation marks omitted). The Supreme Court rejected this argument and required the appellate court to limit itself to an abuse of discretion review. Id. at 2046-47.

The Decision nevertheless substitutes this court's judgment for the district court's, holding that under the facts of this case, the gratuity recipient's status as a Cabinet Secretary was not sufficiently unusual to warrant upward departure. This conclusion does not withstand scrutiny.

The Guidelines provide an eight-level increase to the base offense level for giving gratuities "[i]f the gratuity was given, or to be given to an elected official or any official holding a high-level decision-making or sensitive position." U.S.S.G. § 2C1.2(b)(2)(B). The Application notes include, as examples of high level positions, "prosecuting attorneys, judges, agency administrators, supervisory law enforcement officers and other governmental officials with similar levels of responsibility." Application Note 1. In imposing the two level increase, the District Judge clearly enunciated why he departed upward -- because of the gratuity recipient's position and very significant national responsibilities as Secretary of Agriculture. Slip Opinion at p. 25.

The Decision postulates that the Sentencing Commission must have contemplated including the President and Cabinet officers within the eight-level increase proscribed for officials like judges, prosecuting attorneys, agency administrators and supervisory law enforcement officers, but common sense dictates otherwise. There are, for example, 4,795 United States and Assistant United States Attorneys, 2,180 Supervisory FBI Agents, 843 District Court and Appellate Judges, 545 Members of Congress, and 1,500 Agency Administrators.⁽¹³⁾ In this relatively large gathering, the Cabinet Secretaries and a handful of other officials certainly occupy a rarefied stratum. But, even more to the point, the significance of this distinction of necessity turns on the facts of the case -- whether the Secretary's status meant, in the context of the gratuities he was given and of his power to affect the course of national policy, that the crime of which Sun-Diamond was convicted involved public responsibilities to an unusual and unanticipated degree. This is the quintessentially fact-bound inquiry that this court is constrained to review only for abuse of discretion.

III. CONCLUSION

Two separate issues decided in the Decision demand rehearing. The interpretation of the gratuities statute is out of step with the law enunciated everywhere else (including the Supreme Court), and previously in this circuit. And the sentencing decision invades the discretion of the district court in a way forbidden by the Supreme Court. The Government respectfully requests rehearing, and suggests the appropriateness of rehearing en banc, on both of these issues.

CERTIFICATE AS TO LENGTH OF PETITION

I hereby certify pursuant to Circuit Rule 28(d)(1) that the length of Appellee's Petition for Rehearing and Suggestion for Rehearing en banc is 15 pages containing 4881 words.

CERTIFICATE OF SERVICE

I hereby certify that two true and correct copies of Appellee's Petition for Rehearing and Suggestion for Rehearing en banc were served via hand delivery this 4th day of May, 1998 on:

Richard A. Hibey, Esq.

Eric W. Bloom, Esq.

Charles Klein, Esq.

Winston & Strawn

1400 L Street, N.W.

Washington, D.C. 20005

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

____________________

No. 97-3072

____________________

____________________

ADDENDUM TO PETITION FOR REHEARING

AND SUGGESTION FOR REHEARING EN BANC

DATE: May 4, 1998

ADDENDUM TABLE OF CONTENTS

Tab

A. United States v. Sun-Diamond Growers of California, Inc., Panel Opinion

B. Jury charge from Standefer v. United States

Foot Notes

1. This part of this Petition concerns the portion of the Decision reversing the conviction under 18 U.S.C. § 201(c)(1)(A), which appears at pages 3 to 13 of the Slip Opinion. Back

2. Slip Opinion at p. 9-10 ("if Douglas furnished Espy with gifts merely to win his generalized sympathy for Sun-Diamond, those gifts would not be illegal gratuities, unless the jury found that Douglas sought this generalized sympathy to influence Espy to perform one or more official acts sometime in the future."). Back

3. This Petition cites to the petitions, briefs, and appendix filed with the Supreme Court in Standefer. These documents are all available throught the LEXIS service, but LEXIS does not assign electronic database citations to them. They can be located through a LEXIS search in the "GENFED" library, "BRIEFS" file, using the search term "NUMBER (79-383)." The page numbers provided in this Petition do not appear in the LEXIS versions. Back

4. Standefer argued that the "for or because of" official acts language in the statute's gratuity provision "was aimed at rewards for an official act," not the mere "receipt of gifts." Reply Brief of Petitioner, No. 79-383, Standefer v. United States, at 9-11 (available on LEXIS). Standefer then argued that this court's Brewster decision correctly interpreted the gratuity statute to require proof of the gratuity "being made because of a specifically identified act, and with a certain guilty knowledge . . . ." Id. at 11-13 (quoting from Brewster). In essence, Standefer appears to have been arguing that the District Court's jury instructions on intent in the gratuity context were erroneous because they neither required proof of any particular official act that Standefer intended to reward nor that he had sufficient "corrupt intent" in providing golf trips to the IRS agent. Back

5. The page citations given in this table are to the Appendix filed with the Supreme Court. These instructions are attached to this Petition in full as Addendum B. The Third Circuit's original unpublished panel decision in Standefer quoted the jury instructions in part, and can be found at United States v. Standefer, 1979 WL 4863 (3^rd Cir. 1979).Back

6. The Decision singles out this portion of the instructions for criticism. Slip Opinion at p. 6.Back

7. United States v. Umans, 368 F.2d 725, 730 (2^nd Cir. 1966); United States v. Standefer, 610 F.2d 1076, 1080 (3^rd Cir. 1978) (en banc), aff'd 447 U.S. 10, 100 S.Ct. 1999, 64 L.Ed.2d 689 (1980); United States v. Bustamante, 45 F.3d 933, 940 (5^th Cir. 1995); United States v. Evans, 572 F.2d 455, 480 (5^th Cir. 1978); and United States v. Alessio, 528 F.2d 1079, 1082 (9^th Cir. 1976). Back

8. See also, United States v. Niederberger, 580 F.2d 63, 68-69 (3^rd Cir. 1978) ("we find it unnecessary for the Government to allege . . . that a gratuity received by a public official was, in any way, generated by some specific, identifiable act performed or to be performed by the official"); United States v. Bustamante, 45 F.3d at 940 ("it is sufficient for the government to show that the defendant was given the gratuity simply because he held public office"); United States v. Umans, 368 F.2d at 730; United States v. Alessio, 528 F.2d at 1082. Back

9. The Decision purports to find some support for its result in decisions from the First and Fourth Circuits (Slip Opinion at p. 11), but the reliance on these authorities is strained. In United States v. Muldoon, 931 F.2d 282 (4^th Cir. 1991), the court described the gratuity offense with respect to an official act, but the defendant (who was challenging a bribery conviction) conceded that the evidence was sufficient to convict him of an illegal gratuity, so the court had no occasion to consider the parameters of the gratuity offense. In United States v. Sawyer, 85 F.3d 713, 735-736 (1^st Cir. 1996), the court construed a similarly-worded state statute, finding that no specific act motivating the gratuity need be identified, but rebuffed any attempt to link the interpretation of the state statute to the federal one, noting that "[t]his is not the proper case for us to decide the federal issue." Id. at 738. Back

10. Sun-Diamond asserted that the statute "requires the government to prove a nexus between each unauthorized gift and some specifically identified act . . . ." Slip Opinion at p. 4.Back

11. This part of this Petition concerns the portion of the Decision reversing the upward departure in sentencing, which appears at pages 25 to 29 of the Slip Opinion. Back

12. The Guidelines do not prohibit departure based on a gratuity receiver's position. In fact, the opposite is true -- the Guidelines recognize that position is a valid consideration in sentencing those who give gratuities. U.S.S.G. § 2C1.2(b)(2)(B). The issue here is one of the degree to which that factor was adequately considered under the Guidelines. Back

13. This number is a rough estimate of the number of administrators in the Executive Branch. For example, in the Department of Agriculture, 17 people have the title "administrator," and 18 people in the number two position are titled Associate Administrator or Associate Chief. At the third tier, there are approximately 50 Deputy Administrators. Back

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