UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v.
Criminal
Action No.: 97-CR-0335(RMU)
Document
Nos.: 74, 77, 78, 79, 80
ALPHONSO MICHAEL ESPY
Defendant.
M E M O R A N D U M
O P I N I O N A N D
O R D E R
Denying All Motions
I. Introduction
On August 27, 1997, a grand jury returned an indictment against former Secretary of
Agriculture, Alphonso Michael Espy, based on events that occurred when he headed the
United States Department of Agriculture ("USDA"). The thirty-nine count
indictment details a series of federal offenses the defendant violated when he allegedly
solicited, accepted, and later attempted to conceal receipt of illegal gratuities from
persons and entities regulated by the USDA. The majority of the offenses center around the
Mail and Wire Fraud (18 U.S.C. §§ 1341, 1343, 1346 (1994)), Gratuity to Public Official
(18 U.S.C. § 201(c)(1)(B) (1994)), Meat Inspection Act (21 U.S.C. § 622 (1967)), Travel
Act (18 U.S.C. § 1952 (1994)), and False Statement (18 U.S.C. § 1001 (1994)) statutes.
On November 5, 1997, the defendant filed several motions seeking to dismiss specific
counts in the indictment, or alternatively, to strike certain portions of the indictment
and for more information concerning specific allegations. In an Omnibus Opinion and Order
issued on December 23, 1997, the court denied most of the defendants motions which
directly challenged the sufficiency of the counts in the indictment, but granted in part
the defendants motions seeking to strike surplusage and for a bill of particulars.
See Espy, 989 F. Supp. at 21.
Previously, this court presided over a related case captioned United States v. Sun-Diamond
Growers of California, Cr. No. 96-193 (D.D.C. filed June 13, 1996), which involved an
agricultural cooperatives criminal liability for having bestowed things of value to
the Secretary of Agriculture (defendant Espy). Central to the conviction in that case and
later to defendant Sun-Diamonds appeal was this courts interpretation of the
gratuity statute, 18 U.S.C. § 201(c)(1)(B). Throughout the case, this court held the
gratuity counts could be sustained simply upon a finding that Sun-Diamond gave
unauthorized compensation to defendant Espy for or because of his government position,
regardless of whether or not he agreed to do any particular official act in return. See
United States v. Sun-Diamond, 941 F. Supp. 1262, 1266-69 (D.D.C. 1996). After reviewing
several issues on appeal, including the gratuity conviction, the D.C. Circuit issued a
decision on March 20, 1998. In United States v. Sun-Diamond Growers of California, 138
F.3d 961 (D.C. Cir. 1998), the D.C. Circuit affirmed the convictions on the six wire fraud
counts but reversed the conviction predicated on the gratuity offense because the
"language of the charge [to the jury was] far broader than that of the statute."
See id. at 966. Specifically, the D.C. Circuit stated the jury instructions
"impermissibly allowed the jury to convict if it found that Sun Diamond gave
Secretary Espy things of value merely in recognition of his official position, regardless
of official acts that might have supplied the motivation." See id. at 965.
Similar to his prior motions, the defendant again seeks to challenge the sufficiency of
the majority of charges in light of the Sun-Diamond decision. The heart of the
defendants attack focuses on the indictments failure to link any
"concrete official acts" performed or to be performed in connection with the
alleged gratuities. The defendant claims because the nexus between the alleged gratuities
and an official act is a critical element of a gratuity offense, the failure to identify
specific official acts in the indictment renders the gratuity counts fatally defective.
Likewise, because the Mail and Wire Fraud, and Travel Act violations are largely premised
on the existence of gratuity violations, the defendant claims those counts also cannot
constitute indictable offenses under their respective statutes.
Presently before the court are four new motions by the defendant seeking to (1) dismiss
counts 1-7 and 9-12 for failure to state an offense of mail and wire fraud, or in the
alternative, to strike all references to gratuities in those counts, (2) dismiss counts
13-25 for failure to state an offense under the gratuity statute, (3) dismiss counts 29-33
for failure to state an offense under the Travel Act, and (4) dismiss all the counts
predicated on illegal gratuities, or in the alternative, for disclosure of grand jury
transcripts. Also before the court is a motion filed by the government seeking
reconsideration of this courts decision to strike the term "prohibited
sources" from the indictment as surplusage. In striking the term "prohibited
sources" as surplusage, the court agreed with the defendant that the term was a
prejudicial reference to entities and persons with matters pending before the USDA. See
Espy, 989 F. Supp. at 34-35.
Despite disagreeing as to the instructive nature of the circuits interpretation of
the gratuity statute in Sun-Diamond, both parties concede the opinion is dispositive to
the present controversy. Accordingly, the court will address first the defendants
motion to dismiss the gratuity offenses (counts 13-25), and then the motions contesting
the sufficiency of the remaining counts in the indictment. Finally, the court will
conclude by addressing the merits of the governments reconsideration motion.
II. Analysis
A. Denying the
Defendants Motion to Dismiss Counts 13-25 (Gratuity Offenses)
The defendant seeks to dismiss the gratuity counts because the indictment fails to charge
all the elements of the offense under the gratuity statute. The statute imposes criminal
penalties upon a public official who "directly or indirectly demands, seeks,
receives, accepts, or agrees to receive or accept anything of value personally for or
because of any official act performed or to be performed by such official or person."
18 U.S.C. § 201(c)(1)(B). The defendant claims the "for or because of an official
act" language in the statute requires the indictment to state concrete official acts
in connection with the alleged gratuities the defendant received. The defendant argues the
court in Sun-Diamond rejected any reading of the statute permitting guilt whenever gifts
were bestowed merely in recognition of an officials position because the "for
or because of an official act" requirement was an essential element of the statute.
Thus, the defendant contends because a causal nexus must be demonstrated between the
official acts and alleged gratuities, the indictment cannot dispense with describing the
official acts for which the gratuities were given. The defendant asserts that without
identifying specific official acts, the indictment fails to satisfy FED. R. CRIM. P.
7(c)(1) pleading requirements because it does not contain all the critical elements of the
gratuity statute to give clear notice and sufficient evidentiary detail to prepare a
defense. For the reasons stated below, the court disagrees. Before determining the
sufficiency of the counts under FED. R. CRIM. P. 7(c)(1) pleading requirements, however,
the court will first address the defendants contention that specification of
official acts is an essential element of a gratuity offense and thus necessary in the
indictment.
While correct in asserting a gratuity motivated solely by the officials position is
not unlawful, the defendant incorrectly argues that concrete gifts must be specifically
identified in the indictment to state an adequate charge under the gratuity statute.
Recently in Sun-Diamond, the D.C. circuit examined the gratuities provision which imposes
criminal penalties for persons who furnish illegal gratuities to public officials, 18
U.S.C. § 201(c)(1)(A). In reversing this courts interpretation of the same
provision, the circuit court clarified the meaning of the phrase "for or because of
any official act." The D.C. circuit reasoned the gratuity conviction could not be
sustained on a finding that things of value were furnished merely in recognition of the
public officials position because such an interpretation reads the "official
act" language out of the provision. See Sun-Diamond, 138 F.3d at 966. Simply put, the
gratuity provision required a greater degree of intent because the statute did not forbid
gratuities "for or because of the public officials position." Moreover,
the court focused on the phrase "for or because of an official act" to highlight
the incorrect assumption that the lack of reciprocal quid pro quo in the gratuity
provision (as compared to the bribery provision) completely dispensed with an intent
element in those terms. See id. at 968. The court held that in order to satisfy the intent
element embodied in the phrase "for or because of an official act," "the
giver must intend to reward some past concrete official act or acts, or to enhance the
likelihood of some future act or acts." Id. at 966. At no point in the opinion did
the court interpret those terms, as the defendant contends, to mean specification of
concrete official acts is an essential element of the gratuity offense.
This conclusion is further supported by this circuits previous encounters with the
gratuity statute in both 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). In Brewster and Campbell, when
construing the term "for or because of an official act" the court interpreted
the gratuity provision consistently with the statutory definition of "official
act." Section 201(a)(3) defines "official act" as "any decision or
action on any question, matter, cause, suit, proceeding or controversy, which at any time
be pending, or which may by law be brought before any public official . . . "
(emphasis added). The court in Brewster construed the intent requirement in the phrase
"for or because of an official act" when comparing the intent elements under the
gratuity and bribery provisions of the statute. It stated that whereas a bribery offense
"makes necessary an explicit quid pro quo," an illegal gratuity and the official
act need not each motivate the other. 138 F.3d at 966 (quoting Brewster, 506 F.2d at 72).
Years later the court reaffirmed this interpretation in Campbell by rejecting the view
that a jury needed to find a gratuity was conferred with specific knowledge of a definite
action for which the compensation was intended before convicting the defendant on a
gratuity offense. See id. at 969 (summarizing prior interpretation of gratuity provision
in Campbell). Rather, the court in Campbell held that a public official with an abundance
of relevant matters before him is not insulated from the gratuity statute - "as long
as the jury is required to find the requisite intent to reward past favorable acts or to
make future ones more likely." Id. In sum, neither case supports construing the
phrase "for or because of an official act" as requiring an indictment to
identify specific official acts for which the gratuities were received.
Contrary to the defendants argument, the Sun-Diamond courts rejection of a
"status" gratuity theory of guilt under § 201(c)(1)(A) does not lead to the
conclusion that concrete official acts must now be specified in the indictment. Neither
the decision in Sun-Diamond nor the earlier decisions in Brewster and Campbell interpreted
the "for or because of an official act" phrase as embodying anything more than
just the intent to " reward an official for an act taken in the past or
to be taken in the future." Id. at 966. This conclusion is further supported when
considered in light of the goal of the gratuity statute - preventing the potential
undermining of official integrity. See United States v. Sawyer, 85 F.3d 713, 735-36 (1st
Cir. 1996) (construing purpose of almost identical state gratuity statute). The danger in
an illegal gratuity is not because of its potential effect on a public officials
position, but rather its ability to affect and taint the performance of a public
officials duties. Id. Under this interpretation the gratuity statute focuses on the
officials ability to perform his public duties, i.e., "official acts," and
on the precise reason why acts which seek to corrupt an officials integrity are
forbidden. Interpreting the phrase "for or because of an official act" to mean
only requiring proof of the intent to reward past acts or the likelihood of future ones is
fully consistent with enforcing this prohibition. Any further requirement, therefore,
calling for the specification in the indictment of concrete official acts for which the
gratuities were given is not required under the statute.
Having interpreted the phrase "for or because of official acts," the court moves
on to determine the sufficiency of the gratuity counts under Federal Rule of Criminal
Procedure 7(c). Rule 7(c) requires an indictment to state the essential facts constituting
the charged offense so an accused may prepare his defense. See Russell v. United States,
369 U.S. 749, 763-64 (1962); United States v. Debrow, 346 U.S. 374, 377-78 (1953). The
purpose of this pleading requirement is to enable the accused to plead to an acquittal or
conviction in bar of future prosecutions for the same offense. See Hamling v. United
States, 418 U.S. 87, 117 (1974). The gratuity charges (counts 13-25) satisfy these
requirements. The indictment not only tracks the statutory language of the gratuity
statute, 18 U.S.C. § 201(c)(1)(B), but also gives sufficient factual detail so as to
notify the defendant adequately of the nature of the charges. See Indictment ¶¶ 1-14,
20. By incorporating the background paragraphs of the indictment, the gratuity counts set
forth (1) which USDA regulated entities or persons furnished gifts to the defendant
"for or because of an official act," (2) a description of every gift each USDA
regulated entity or person gave the defendant, and (3) the dates of receipt and value of
each gift. See Indictment ¶¶ 8, 9, 20. Under the applicable standards, the indictment
fairly informs with reasonable certainty the nature of the accusations and all the
elements necessary constituting the charged offense so that the defendant is aware of what
charges he must meet and may plead an acquittal or conviction in bar of future
prosecutions. See Russell 369 U.S. at 763.
B. Denying the Defendants
Motion to Dismiss Counts 1-7 & 9-12 (Mail and Wire
Fraud)or
in the Alternative, to Strike All References to Gratuities in Those
counts
Eleven counts in the indictment charge the defendant with mail and wire fraud because he
allegedly used the mails and wires to execute a scheme to defraud, among others, the
United States and its citizens of their intangible right to honest services. See
Indictment ¶¶ 15-18. Before the circuits decision in Sun-Diamond this court upheld
the sufficiency of these charges. See Espy, 989 F. Supp. at 25-30. In doing so, this court
rejected the defendants contention that the indictment needed to state that he
engaged in an official act for the alleged gratuities or otherwise failed to render honest
services when he served as Secretary of the USDA. See id. Based on the circuit
courts decision in Sun-Diamond, the defendant now claims these counts are no longer
tenable because this court incorrectly assumed the sufficiency of an "honest
services" fraud offense premised on a gratuity violation could be adequate without
specification of official acts in the indictment. Thus, the defendant claims that because
the sufficiency of the "honest services" fraud charges hinged on the incorrect
interpretation of the gratuity statute, those charges must be dismissed for failure to
support properly the gratuity charges upon which they were based. The court disagrees.
The defendant incorrectly characterizes the courts prior ruling upholding the
sufficiency of the "honest services" fraud charges as a decision based largely
on whether the defendant violated the gratuity statute. Notwithstanding the courts
decision upholding the sufficiency of the gratuity counts above, all contentions attacking
the sufficiency of the "honest services" fraud charges on the basis that they
are premised on an incorrect interpretation of the gratuity statute are misplaced. In
upholding these counts this court viewed as a whole all allegations related to the
defendants scheme to defraud the United States and its citizens of their intangible
right to honest services. When determining the sufficiency of the "honest
services" counts this court did not exclusively focus on any particular act, but
instead, on the overall series of acts in the defendants alleged fraudulent scheme.
This court reasoned, in part, that a public official who solicited gifts from entities
over which he held decision-making discretion and later concealed receipt of those gifts,
exhibited elements of dishonesty sufficient to support a charge he breached a fiduciary
duty owed to the United States and its citizens. See Espy, 989 F. Supp. at 26-27 (citing
cases). Here, the acts concealing receipt of such gifts included the defendants
alleged (1) failure to disclose receipt of gifts from entities and persons regulated by
the USDA on his Public Financial Disclosure report, SF-278, as required by the Ethics in
Government Act, and (2) misrepresentation of facts to federal investigators concerning
their receipt. Because the apparent conflict of interest in the non-disclosure and
misrepresentation breached the defendants fiduciary duty, it deprived the United
States and its citizens a of legally significant benefit, namely the right to the
defendants honest services as Secretary of the USDA. See id.; see also United States
v. Defries, 129 F.3d 1293, 1305-06 (D.C. Cir. 1997) (stating breaches of fiduciary duty
are criminally fraudulent only when "accompanied by a misrepresentation or
non-disclosure that is intended or is contemplated to deprive the person to whom the duty
is owed of some legally significant benefit") (citing and quoting United States v.
Lemire, 720 F.2d 1327, 1335 (D.C. Cir. 1983)). Thus, this court concluded the allegations
in the indictment, when viewed as a whole, sufficiently stated a fraudulent scheme to
support of an "honest services" fraud offense.
In the alternative, the defendant moves pursuant to Federal Rule of Criminal Procedure
7(d) to strike all references to gratuities in the mail and wire fraud counts because
after Sun-Diamond, the gratuity allegations no longer assert the type of dishonest conduct
necessary to sustain an "honest services" fraud offense under those statutes.
Even apart from the decision upholding the sufficiency of the gratuity counts, the court
concludes the contested language is relevant to the "honest services" fraud
charges and therefore will not strike those terms from the counts. See United States v.
Jordan, 626 F.2d 928, 930 n.1 (D.C. Cir. 1980) (finding the standard under Rule 7(d) has
been strictly construed against striking surplusage); see also 1 Charles A .Wright &
Arthur R. Miller, Federal Practice and Procedure § 127 (2d ed. 1982) ("[A] motion to
strike surplusage should be granted only if it is clear that the allegations are not
relevant to the charge and inflammatory and prejudicial."). As stated above, the
gratuity allegations are related to the defendants scheme to defraud. Such
allegations not only put in context the full scope of the defendants activities, but
also provide the jury information on issues of intent and motivation. Accordingly, the
court denies the defendants motion to strike all references to gratuities in the
mail and wire fraud counts.
C. Denying the
Defendants Motion to Dismiss Counts 29 - 33 (Travel Act)
Next, the defendant seeks to dismiss counts 29 to 33 of the indictment for alleged Travel
Act offenses under 18 U.S.C. § 1952. To state an offense under the Travel Act, the
government must allege (1) interstate travel or use of a facility in commerce (2) with the
intent to promote an unlawful activity and (3) that the defendant thereafter performed or
attempted to perform or facilitated the performance of an overt act in furtherance of the
unlawful activity. See United States v. Childress, 58 F.3d 693, 719 (D.C. Cir. 1995)
(citations omitted). "Unlawful activity" includes "extortion, bribery or
arson in violation of the laws of the State in which they are committed or of the United
States. . ." 18 U.S.C. § 1952(b). The defendant argues these counts are insufficient
because neither the gratuity nor the Meat Inspection Act violations constitute an unlawful
activity (bribery) within the meaning of the Travel Act. Specifically, because
"bribery" requires an explicit nexus between a gift and an official act, the
defendant asserts both the gratuity and the Meat Inspection Act charges fail to qualify as
"bribery" within the meaning of the statute. The defendant bases this assertion
on the fact neither of the counts identify concrete official acts for which the gifts were
given. Although the court agrees that Meat Inspection Act violations do not satisfy the
bribery component of the Travel Act, counts 29 to 33 will not be dismissed because the
gratuity offenses in the indictment do constitute "bribery" within the meaning
of the statute.
As an initial matter, the court disagrees with the defendants contention that the
bribery component is limited to the specific crime of bribery as defined in 18 U.S.C. §
201(c). The Supreme Court faced a similar issue in Perrin v. United States, 444 U.S. 37
(1979), when the petitioner sought to reverse his conviction under the Travel Act by
arguing that Congress intended "bribery" to be restricted to its common law
definition, i.e., bribery of a public official, and not Louisianas state commercial
bribery statute under which he was prosecuted. See id. at 41. In affirming the conviction
the Supreme Court rejected the petitioners argument and held that Congress intended
to use "bribery" in its generic and contemporary meaning within the Travel Act.
See id. at 49. Despite construing an expansive definition for "bribery" the
Supreme Court did not make clear whether all other crimes listed under the bribery
statute, 18 U.S.C. § 201, including the gratuity provision also satisfied the bribery
component of the Travel Act. In construing the purpose of the bribery component of the
Travel Act, however, this court concludes the gratuity provision as interpreted in
Sun-Diamond can serve as a predicate crime of bribery under the Travel Act.
In contrast to an illegal gratuity which only requires proof that the thing of value was
given with the intent to reward an official for an act taken in the past or to be taken in
the future, a bribery offenses higher requisite intent element calls for "an
explicit quid pro quo" between the thing of value to be received and the official
act. See Sun-Diamond, 138 F.3d at 966 (citation and internal quotation marks omitted).
Although both offenses are distinct with differing mens rea requirements, for the purposes
of the Travel Act there is little reason to make distinctions between them in instances
when both are used to prevent acts which undermine official integrity. See United States
v. Biaggi, 674 F. Supp. 86, 89 (E.D.N.Y. 1987), affd, United States v. Biaggi, 853
F.2d 89 (2d Cir. 1988) (stating the policy and purpose behind briberys "corrupt
intent to influence" and gratuitys "for or because of" elements are
not substantially different within the meaning of the Travel Act). Specifically, when used
in the context of preventing acts intended to influence a public officials conduct
for preferential treatment, the gratuity provision is consistent with the purpose of the
bribery component under the Travel Act. See id. at 89 (stating a gratuity does not inflict
a lesser evil on society than a bribe because "there is still a tendency . . . to
provide preferential treatment . . . of the donor by the donee . . ." ) (citing
United States v. Evans, 572 F.2d 455, 480 (5th Cir. 1978)). In these circumstances, both
bribery and gratuity offenses attempt to prevent the same "evil of allowing citizens
with money to buy better public service than those without money." Id. at 89.
As set forth in Sun-Diamond, the gratuity provisions "for or because of an
official act" requirement makes unlawful only those gifts given with the intent to
reward or influence a public officials conduct. See 138 F.3d at 966. The gratuity
provision does not make unlawful gifts given only with the purpose of gaining
"generalized sympathy" or to "induce warm feelings" from a public
official because such conduct is not adequately distinguishable from conduct that is
lawful. See Brewster, 506 F.2d at 81-82 (stating gifts furnished without the intent to
influence public officials conduct fails to qualify as gratuity because not
adequately distinguishable from innocent conduct of giving legal campaign contributions);
see also Sawyer, 85 F.3d at 741 (stating bribery component of Travel Act satisfied when
gift is intended to influence recipients official acts, but not when only intended
to cultivate business or political friendship). Therefore, when a thing of value is given
to a public official with the intent to alter "official acts," the gratuity
provision can serve as the predicate crime of bribery under the Travel Act. Thus, counts
29 to 33 have properly stated all the elements of the offense under the Travel Act. These
counts state, in part, the defendant traveled in interstate commerce with the intent to
carry on the unlawful activity of accepting unlawful things of value in violation of 18
U.S.C. § 201(c). See Indictment ¶ 24. The counts also satisfy FED. R. CRIM. P. 7(c)
pleading requirements by providing the defendant with (1) the date each gift was received,
(2) between which points of travel the defendant received each gift, and (3) a description
of each gift. See id.
In contrast to a gratuity offense, a Meat Inspection Act violation cannot serve as a
predicate crime of bribery for the purposes of the Travel Act. The Meat Inspection Act
imposes criminal penalties upon any, [meat] inspector . . . or employee of the United
States authorized to perform any of the duties prescribed by this subchapter . . . who
shall receive or accept from any person, firm, or corporation engaged in commerce any
gift, money or other thing of value, given with any purpose or intent whatsoever . . .
(emphasis added).
21 U.S.C. § 622.
As stated above, all crimes satisfying the bribery component must have at least a similar
intent element embodied in the bribery component of the Travel Act. The Meat Inspection
Act makes clear, however, that criminal liability under the statute is determined
irrespective of why the public official received the gift. The statute does not
distinguish between gifts given with the intent to influence "official acts" and
ones without similar motivations. Without a requirement demonstrating that the gift was
indeed given to the public official to influence his conduct, violations under the Meat
Inspection Act cannot serve as a predicate crime of "bribery" within the meaning
of the Travel Act.
D.
Denying the Defendants Motion to Dismiss All Counts Predicated
on Gratuities, or in the Alternative, for Disclosure of Grand Jury
Transcripts
Finally, the defendant moves for an order dismissing all counts predicated on the gratuity
charges because the government allegedly gave the grand jury erroneous instructions as to
the elements of the offense under 18 U.S.C. § 201(c)(1)(B). Specifically, because the
government prosecuted under a "status" gratuity theory of liability subsequently
rejected in Sun-Diamond, the defendant claims he was seriously prejudiced by the grand
jury impermissibly assuming it could indict him for offenses predicated on receiving
illegal gratuities. Again, the defendant claims the failure to cite "official
acts" for which the gratuities were given in the indictment not only supports the
insufficiency of all counts predicated on the receipt of illegal gratuities, but also
demonstrates the grand jury was given erroneous instructions as to the elements of such
offenses. In the alternative, the defendant moves pursuant to Federal Rule of Criminal
Procedure 6(e)(3)(c)(iii) for an order disclosing the grand jury transcripts relating to
the instructions to verify if the grand jury was given incorrect instructions. For the
reasons stated herein the court will neither dismiss all counts predicated on gratuity
violations nor order the disclosure of grand jury transcripts.
In determining whether to dismiss an indictment for errors in grand jury proceedings, a
court must assess if the alleged violation " substantially influenced the grand
jurys decision to indict, or if there [was] grave doubt that the
decision to indict was free from the substantial influence of such violations." Bank
of Nova Scotia v. United States, 487 U.S. 250, 256 (1988) (quoting United States v.
Mechanik, 475 U.S. 66, 78 (1986)) (applying FED. R. CRIM. P. 52(a) "harmless
error" standard where dismissal sought for nonconstitutional error). Dismissal in
these circumstances is warranted only when prosecutorial misconduct significantly
infringes on the grand jurys ability to render an independent judgment. See id. at
255-256; see also United States v. Larrazolo, 869 F.2d 1354, 1358 (9th Cir. 1989). Before
invoking this power, however, a court must find the alleged prosecutorial misconduct
actually prejudiced the defendant. Absent proof the misconduct "substantially
influenced the grand jurys decision to indict," a dismissal is not warranted.
See Nova Scotia, 487 U.S. at 256.
Here, dismissal is not warranted because the defendant was not actually prejudiced by any
alleged misconduct. The defendants sole justification for dismissal incorrectly
assumes a valid gratuity charge requires the specification of concrete official acts in
the indictment. As stated before, no such requirement exists. Additionally, the defendant
incorrectly assumes erroneous grand jury instructions automatically invalidate an
otherwise proper grand jury indictment. See United States v. Larrazolo, 869 F.2d 1354,
1359 (9th Cir. 1989) (citations omitted). The defendant still must demonstrate the
erroneous instructions created "grave doubt" that the decision to indict was
free from the substantial influence of such violations. The defendant has failed to do so.
All the contested counts in the indictment meet the pleading standards of Rule 7(c) of the
Federal Rules of Criminal Procedure because each one tracks the statutory language of the
relevant statute and provides sufficient factual detail to inform the defendant on the
nature of the accusations against him. Furthermore, because the indictment is measured on
the basis of whether the charged offense provides the defendant adequate notice of the
acts he allegedly committed, "an indictment returned by a legally constituted and
unbiased grand jury . . . if valid on its face, is sufficient to call for trial on the
merits." See Costello v. United States, 350 U.S. 359, 362 (1959).
For similar reasons, the court also denies the defendants alternative request to
disclose the grand jury transcripts related to the instructions on the gratuity offenses
and related charges. Federal Rule of Criminal Procedure 6(e)(3)(C)(ii) permits disclosure
of grand jury minutes "at the request of the defendant, upon a showing that grounds
may exist for a motion to dismiss the indictment because of matters occurring before the
grand jury." Because of the "long-established policy that maintains the secrecy
of the grand jury proceedings in federal courts," United States v. Proctor &
Gamble, 356 U.S. 677, 681 (1958), the defendant must demonstrate a "particularized
need" for the specified portions of the grand jury transcript before disclosure is
made. See Dennis v. United States v. Alexander, 384 U.S. 855, 870 (1966); United States v.
Oakar, 924 F. Supp. 232, 246 (D.D.C. 1996), affd in part and revd in part, 111
F.3d 146 (D.C. Cir. 1997). Here, the defendant has not demonstrated that any sufficiently
persuasive grounds for a motion to dismiss the indictment exist. Failure to instruct the
grand jury on facts deemed not essential elements under the gratuity provision does not
constitute grounds for disclosure of the grand jury minutes. Moreover, the facially valid
indictment undermines any "particularized need" the alleged grand jury
instructions demonstrate for disclosure of the grand jury transcripts. Accordingly, the
court denies the defendants motion for disclosure of grand jury transcripts.
E.
Denying the Governments Motion for Reconsideration of the Courts Order
to Strike the Term "Prohibited Source" as Surplusage.
The government moves for reconsideration of this courts decision to strike the term
"prohibited source" from the indictment. The term "prohibited source"
describes individuals, firms or entities from which the defendant allegedly received
illegal gratuities. See Indictment ¶ 6. The government claims the court should reinstate
the term mainly for three reasons. First, the government claims that the term
"prohibited source" is a term of art used in the Executive branchs manual
on Standards of Ethical Conduct for Employees of the Executive Branch. Second, the
defendant used the term when he was the Secretary of Agriculture. Finally, the government
claims that the term is the most clear and informative way to describe individuals and
entities that gave illegal gratuities to the defendant. The court has previously
considered similar arguments and rejected them in its earlier Omnibus Opinion and Order.
See Espy, 989 F. Supp. at 37.
When the court previously granted the defendants motion to strike the term
"prohibited source" from the indictment it was cognizant that a motion to strike
should be infrequently granted, and that the court should only strike irrelevant and
prejudicial language. Espy, 989 F. Supp. at 37; see also United States v. Rezaq, 124 F.3d
1121, 1134 (D.C. Cir. 1998). The court, however, was concerned with the terms
inflammatory and prejudicial value and specifically held that "the term
prohibited source does not provide additional insight into the charges against
the defendant, but in only serve[d] to suggest to the jury that the defendants
alleged receipt of gratuities from these entities constitute[d] criminal conduct before he
has an opportunity to defend himself." Espy, 989 F. Supp. at 37. The court also
suggested that the parties devise a more neutral term in its substitution. See id.
In this instance, the governments renewed contentions do not pacify the courts
continuing concern of the terms potential inflammatory and prejudicial meaning.
Indeed, it is completely irrelevant that the Executive branch and the defendant himself
had employed the term. The defendant is not under indictment for violating the manual.
Rather, he is charged with violating a federal gratuity statute, 18 U.S.C.
§ 201(c)(1)(B). The fact that the Executive branch and the defendant used the term
does not lessen its potential prejudicial value in the eyes of the jurors. The adjective
"prohibited" imputes criminality on the part of the defendant prior to having
any opportunity to present evidence to the contrary. Accordingly, without more, the court
rejects the governments assertions.
The government finally argues that "the term prohibited source is the
most clear and informative way to describe the individuals and entities who gave unlawful
gratuities" to the defendant. This argument is similarly unpersuasive. The term
"prohibited source" is not the most informative description but rather it is
misleading. Other more neutral terms such as "interested parties" or
"interested entities" are equally informative but lack the inflammatory
implication in describing the individuals or firms that allegedly gave the defendant
illegal gratuities. The court therefore rejects this contention and denies the
governments motion for reconsideration.
III. Conclusion
For the reasons stated in this Memorandum Opinion it is this 28th day of August 1998,
ORDERED that the defendants Motion to Dismiss Counts 1-7 and 9-12
of the Indictment for Failure to State an Offense of Mail or Wire Fraud, or in the
Alternative, to Strike All References to Gratuities in Counts 1-7 and 9-12 be and is
hereby DENIED; it is
FURTHER ORDERED that the defendants Motion to Dismiss Counts 13-25
of the Indictment for Failure to State an Offense be and is hereby DENIED; it is
ORDERED that the defendants Motion to Dismiss Counts 29-33 of the
Indictment for Failure to State an Offense Under the Travel Act be and is hereby DENIED;
it is
FURTHER ORDERED that the defendants Motion to Dismiss All Counts
Predicated on Illegal Gratuities, or in the Alternative, for Disclosure of Grand Jury
Transcripts be and is hereby DENIED; and it is
ORDERED that the governments Motion for Reconsideration of the
Courts Order to Strike the Term "Prohibited Source" as Surplusage be and
is hereby DENIED.
SO ORDERED.
Ricardo M. Urbina
United States District Judge.
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