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ORAL ARGUMENT HELD ON MAY 12, 1999 Nos. 98-3123 and 98-3126
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
UNITED STATES OF AMERICA
Appellant and Cross-Appellee, v. ARCHIBALD R. SCHAFFER, III
Appellee and Cross-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
RESPONSE SUPPLEMENTAL BRIEF FOR APPELLANT, UNITED STATES OF AMERICA
DONALD C.
SMALTZ Independent
Counsel
CHARLES M. KAGAY Chief
Appellate Counsel WIL FRENTZEN Associate
Independent Counsel
JOSEPH P. GUICHET Associate
Independent Counsel Office of
Independent Counsel 103 Oronoco
Street, Suite 200 Alexandria,
VA 22314 (703)
706-0010
CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES (A)
Parties
All parties, intervenors and amici appearing in this Court are listed in the
opening Brief for Appellant, United States of America. (B)
Rulings Under Review
References to the rulings at issue appear in the opening Brief for Appellant,
United States of America. (C)
Related Cases
There are no related cases pending before this Court. TABLE OF CONTENTS Page No. CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES i TABLE OF CONTENTS
ii TABLE OF AUTHORITIES iii GLOSSARY OF TERMS
iii PERTINENT STATUTES AND REGULATIONS iii SUMMARY OF THE ARGUMENT
1 ARGUMENT
1
I.
INTRODUCTION 1 II.
THE PLAIN LANGUAGE OF THE MIA DOES NOT SUGGEST
THAT THE GOVERNMENT MUST PROVE THAT A GIFT WAS
GIVEN TO INFLUENCE SOME PARTICULAR DUTY 2 III.
THE MIA DOES NOT REQUIRE A NARROWING
INTERPRETATION TO FIT WITHIN THE BROADER
STATUTORY AND REGULATORY SCHEME REGARDING
GIFTS TO PUBLIC OFFICIALS
3
IV. THE
MIA DOES NOT INVITE THE PECULIAR RESULTS
POSSIBLE UNDER THE GRATUITY STATUTE 5 CONCLUSION
6
TABLE OF AUTHORITIES CASES Page
No. United States v. Espy, 145 F.3d
1369 (D.C. Cir. 1998) 3, 4 United States v. Sun-Diamond
Growers of California, 119 S. Ct. 1402 (1999)
passim STATUTES AND RULES 18 U.S.C. § 201(c) passim 21 U.S.C. § 622 passim GLOSSARY OF TERMS MIA
-- Meat Inspection Act Def.s Supp. Br.
-- Supplemental Brief for the Appellee, Archibald R. Schaffer, III PERTINENT STATUTES AND REGULATIONS
All applicable statutes are contained in the opening Brief for Appellant, United
States of America.
SUMMARY OF
THE ARGUMENT
Defendants argument that the Meat Inspection Act should be read to require
proof that a gift was given with intent to influence some particular duty, rather than any
duty, is flatly contradicted by the statutes plain language as well as its role in
protecting the nations meat supply. Nothing
in the Supreme Courts decision in United States v. Sun-Diamond Growers of
California, 119 S. Ct. 1402 (1999), suggests a contrary result.[1] ARGUMENT I.
INTRODUCTION
The Meat Inspection Act (MIA) prohibits the giving of any thing of
value to any person assigned duties under the MIA with intent to influence said
[person] in the discharge of any duty provided for in [the Act]. 21 U.S.C. § 622 (emphasis added). With the recent decision in United States v.
Sun-Diamond Growers of California, 119 S. Ct. 1402 (1999), as a springboard, defendant
insists that the MIA requires the Government to prove that a gift was given intending to
influence some particular duty. Sun-Diamond
does not support this position, and in fact suggests why it must be rejected.
Sun-Diamond addressed only the general gratuity statute, 18 U.S.C.
§ 201(c), and not the MIA. The
differences between the MIA and 18 U.S.C. § 201(c), both in language and in purpose,
readily distinguish this case from Sun-Diamond. II.
THE PLAIN LANGUAGE OF THE MIA DOES NOT SUGGEST THAT THE GOVERNMENT MUST PROVE THAT
A GIFT WAS GIVEN TO INFLUENCE SOME PARTICULAR DUTY
Defendant baldly insists that the plain language of the [MIA] requires the
prosecution to identify and prove that a thing of value was provided with an intent to
influence a particular duty specified in the Act.
Def.s Supp. Br. at 3. The
statute itself lends no support to this assertion. The
statute provides:
Any person . . . who shall give . . . to any . . .
officer . . . 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
. . . of the United States in the discharge of any duty provided for in this
subchapter, shall be deemed guilty of a felony . . . 21 U.S.C.
§ 622.
Defendant premises his plain language argument exclusively on Sun-Diamonds
conclusion that Congresss insistence upon an official act,
carefully defined, seems pregnant with the requirement that some particular official act
be identified and proved. Def.s
Supp. Br. at 3-5. But, unlike 18 U.S.C.
§ 201, which carefully defines the term official act at length, see
18 U.S.C. § 201(a)(3), the MIA does not attempt to define the term duty
at all. See 21 U.S.C. § 622. The MIA, in other words, is not pregnant
with any requirement that a particular duty be identified.
While, as defendant notes, one can discern duties assigned to the Secretary and
others within the statute, this is a far cry from the type of precise definition that
Congress gave to the term official act in the gratuity statute. Indeed, recognizing the absence of a statutory
definition of duty in the MIA, this Court has held that the term must be read
broadly as something that one is expected or required to do by moral or legal
obligation. United States v. Espy, 145 F.3d 1369, 1371 (D.C. Cir. 1998)
(quoting The Random House College Dictionary
411 (Revised Ed. 1980)). Following the
reasoning of the Supreme Court, absent a detailed definition such as the one Congress
supplied for the gratuity statute, there is no implication within the statute that
Congress contemplated that the prosecutor would have to identify, with particularity, the
duty for which the gratuity was given. III.
THE MIA DOES NOT REQUIRE A NARROWING INTERPRETATION TO FIT WITHIN THE BROADER
STATUTORY AND REGULATORY SCHEME REGARDING GIFTS TO PUBLIC OFFICIALS
Defendant next seizes on the Supreme Courts observation in Sun-Diamond
that Congress has passed broadly prophylactic criminal prohibitions on gift-giving
without regard to the purpose for which the gift was given.
Def.s Supp. Br. at 5. But no one
has ever contended that the MIA was such a law. For
one thing, it is narrowly focused on the safety and quality of meat products shipped in
interstate commerce, not the universe of governmental duties. For another, it hinges specifically on the purpose
for which a gift was given it only forbids only the giving of gifts with
intent to influence . . . the discharge of any duty provided for in this
subchapter. Thus, none of the
difficulties that the Supreme Court perceived would flow from reading § 201(c) as
prohibiting status gratuities are present under the MIA, even though the MIA does not
require the identification of the particular duty for which the gift was given.
In any event, Congress certainly did not perceive any problem in the breadth of a
gratuity statute confined to the meat inspection arena, since, as defendant notes,
Congress did create a pure status gratuity offense for a gift recipient.[2]21 U.S.C. § 622. A fortiori,
the donor offense, which does require an intent to influence, cannot be broader than
Congress thought reasonably necessary to protect the nations meat supply.[3]
The MIA is one of the more precisely targeted prohibitions to which
Sun-Diamond referred, because it applies only to gifts within the narrow context of
the relationship between the meat industry and public officials having duties under the
MIA.[4]
As a result, it does not overlap with other provisions in the intricate web of
gift-giving regulations and this Court need not further narrow its application to make it
fit within that web.
Additionally, the Supreme Court in Sun-Diamond saw a need to narrow the
gratuity statue, because otherwise its broad provisions would subsume the safe harbors of
the Office of Governmental Ethics (OGEs) regulations regarding
gifts to public officials, creating snares for the unwary. 119 S.Ct. at 1409.
The MIA poses no comparable danger. Although
OGEs regulations permit public officials to receive certain gifts under certain
conditions (for example, gifts of less than $20 in value), none of those exceptions apply
if the public official has the intent of being influenced in receiving the gift. See 5 C.F.R. 2635.202(c) (Notwithstanding
any exception provided in this subpart, . . . an employee shall not accept a gift in
return for being influenced in the performance of an official act). By its express terms, the MIA requires an intent
to influence, and therefore cannot countermand any safe harbor the regulations carve out. IV.
THE MIA DOES NOT INVITE THE PECULIAR RESULTS POSSIBLE UNDER THE
GRATUITY STATUTE
The peculiar results that troubled the Supreme Court under the gratuity statute
criminalization of legitimate status gifts untethered to official acts
are not present under the relevant provision of the MIA because it requires the
criminal mens rea of intent to influence, thus reaching only improper
payments. Absent an intent to influence,
there is no crime. Thus, contrary to
defendants contentions, the mens rea under the MIA is not lower
than that required to violate the gratuity statute, because the jury must find a criminal
intent to influence.
What troubled the Supreme Court about the gratuities statute was that prosecutions
for trivial offenses could occur if the giving of gifts by reason of the recipients
mere tenure in office constitutes a violation.
119 S.Ct. at 1408. This raised the
possibility of prosecutions unrelated to any value that Congress was trying to promote
through the statute. The MIA does not raise a
comparable concern. A donor can be prosecuted
under the MIA only if the gift was given to influence the discharge of a duty prescribed
by the Act. This prohibition lies at the core
of Congresss concern in protecting public safety through stringent inspection and
regulation of meat production. CONCLUSION
The plain language of the MIA refutes defendants assertion that the
government must prove a link between a gift and some particular duty under the Act. Rather, as the statute says, a gift is criminal if
given with intent to influence any duty under the Act, even if the duty is prospective or
not specifically known at the time of the gift. See
Brief for Appellant, United States of America, at 41 n.18.
Sun-Diamond does not compel a different result; that opinion addressed only
18 U.S.C. § 201(c), a statute using different language, serving different purposes,
and enacted at a different time. Consequently,
the district courts order as to Count 7 should be reversed and the jurys
verdict reinstated.
DONALD C. SMALTZ
INDEPENDENT COUNSEL
Charles M. Kagay
Chief Appellate Counsel
By: _____________________________
Joseph P. Guichet
Associate Independent Counsel
Wil Frentzen
Associate Independent Counsel
103 Oronoco Street, Suite 200
Alexandria, Virginia 22314
Tel: (703) 706-0010
Fax: (703) 706-0050
CERTIFICATE OF SERVICE
I HEREBY CERTIFY
that a true and correct copy of the foregoing Response Supplemental Brief of Appellant,
United States of America was provided this 9th day of June, 1999, via facsimile and United
States mail, postage prepaid, to the following:
William
H. Jeffress, Jr.
Miller,
Cassidy, Larroca & Lewin, LLP
2555
M. Street, N.W.
Washington, D.C. 20037
Woodson
W. Bassett, III
Bassett
Law Firm
221
North College Ave.
P.O.
Box 3618
Fayetteville,
AR 72702
____________________________
Joseph
P. Guichet
Associate
Independent Counsel CERTIFICATION REGARDING LENGTH OF BRIEF
I HEREBY CERTIFY
pursuant to Circuit Rule 28(d)(1) that the length of this brief is 1658
words.
____________________________
Joseph
P. Guichet
Associate
Independent Counsel [1]Even if the Court concludes that the MIA requires proof
of an intent to influence some particular duty under the Act, the evidence was more than
sufficient to establish that link, as the Government demonstrated in its earlier briefs
and at oral argument. [2]Specifically,
the statute forbids the receipt of any gratuity given with the intent to influence
official action, or of any gratuity given by a person in commerce within the
meaning of the statute, regardless of the intent with which it was given: [A]ny . . . officer of the United
States authorized to perform any of the duties prescribed this subchapter who shall accept
any money, gift, or other thing of value from any person . . ., given with
intent to influence his official action, or who shall receive or accept from any person
. . . engaged in commerce any gift, money, or other thing of value, given with
any intent or purpose whatsoever, shall be deemed guilty of a felony . . . . [3]The statutes history encourages broad application
as Congress passed the MIA in response to Upton Sinclairs The Jungle in order to ensure safe meat products. Espy, 145 F.3d at 1371. [4] It is
important to note that Congress first passed the MIA in 1906 when the field of conflict of
interest laws was far less littered than it was in 1962, when Congress passed
§ 201(c), or in 1999, when the Supreme Court interpreted § 201(c).
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