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UNITED STATES v. CONLON

October 26, 1979

UNITED STATES OF AMERICA
v.
JAMES A. CONLON



The opinion of the court was delivered by: OBERDORFER

MEMORANDUM

I.

 This Memorandum is filed in further explanation of the Court's Order of October 15, 1979, granting the renewed motion to dismiss Count I of the indictment against defendant, the former Director of the Bureau of Engraving and Printing. That indictment charged him with violating 18 U.S.C. ยง 208(a) (1976 and Supp. I 1977) by participating as a government officer in a proposal by the American Bank Note Company ("ABN") while he was "negotiating and had an arrangement concerning prospective employment" with ABN. *fn1"

 Section 208(a) of Title 18, U.S.C. is the part of the bribery and conflict of interest laws that prohibits a federal employee from participating in official actions that affect a person or organization in which the employee has a financial interest. Section 208(a) provides in relevant part:

 
Except as permitted by subsection (b) hereof, whoever, being an officer or employee of the executive branch of the United States Government, (or) of any independent agency of the United States . . . participates personally and substantially as a Government officer or employee, through decision, approval, disapproval, recommendation, the rendering of advice, investigation, or otherwise, in a . . . contract . . . or other particular matter in which, to his knowledge . . . any person or organization with whom he is negotiating or has any arrangement concerning prospective employment, has a financial interest
 
The indictment charging the defendant Conlon with violating section 208(a) alleges in its entirety that:
 
In the period from in or about December 1976 through June 1977, in the District of Columbia, JAMES A. CONLON, the Defendant, being an officer and employee of the executive branch of the United States Government, that is, the Director of the United States Bureau of Engraving and Printing, unlawfully and knowingly did participate personally and substantially as such officer and employee, through decision, recommendation, and the rendering of advice, in a proposal of the American Bank Note Company for a Security Signature System for U. S. Currency, a particular matter in which to his knowledge the American Bank Note Company, a company with which he was negotiating and had an arrangement concerning prospective employment, had a financial interest.
 
On September 7, 1979, the defendant filed a motion to dismiss Count I, alleging that the indictment failed to state an offense and that as drafted, the indictment was so vague that it did not sufficiently apprise the defendant of the accusations against him. Simultaneously, pursuant to Rule 7(f), Fed.R.Crim.P., the defendant filed a motion for a Bill of Particulars asking, Inter alia, that the Government:
 
6. State upon what date or dates the government contends that the defendant negotiated or was negotiating with ABN. State further where and with whom such negotiations took place and state the substance of these negotiations.
 
7. State upon what date or dates the defendant had an arrangement concerning prospective employment within ABN.
 
Motion for a Bill of Particulars, September 7, 1979, at 1.
 
The Government opposed the motion to dismiss on the ground that the indictment sufficiently charged an offense under the statute, and adequately informed the defendant of the nature of the accusations against him. See Government's Response in Opposition to Defendant's Motion to Dismiss the Indictment, September 19, 1979, at 1-5. The government opposed the request for particulars about the acts of negotiation because it "request(s) specification of what is clearly evidentiary material." It objected to giving particulars about the nature of the "arrangement" because to do so "would serve none of the objectives of a bill of particulars and would in effect compel disclosure of the Government's legal theory and evidence." Government's Response to Defendant's Motion for Bill of Particulars, September 19, 1979, at 2-3.
 
On September 28, 1979, after argument of the motions, the Court declined to dismiss Count I and granted, in greater part, the motion for a Bill of Particulars. In denying the motion to dismiss, the Court noted that "Defendant conceded at argument that . . . favorable action on his Motion for a Bill of Particulars would cure the defects at issue." Memorandum and Order, September 28, 1979, at 1. *fn3" As a result of defendant's concession, the Court did not reach his claim that the indictment failed to state an offense. By accompanying Order, the Court granted the request for particulars 6 and 7, Supra, because "they seek to identify only the nature and time of the essential acts of alleged participation as a government officer in contract negotiation with an organization with whom the defendant was allegedly negotiating for employment." Order, September 28, 1979.
 
The Government responded to the Order by filing a Bill of Particulars on October 4, 1979. In response to request 6, seeking particulars of the acts of negotiation, the Government reiterated its allegation:
 
that the defendant was negotiating with ABN on December 7, 1976; December 22, 1976; April 21, 1976; May 10, 1977; May 17, 1977; June 21, 1977 and June 24, 1977.
 
But the Bill of Particulars conceded that:
 
We do not know when, where or with whom such negotiations were begun. The defendant has admitted discussing employment with Edward Weitzen on or about June 10, 1977, and Soon thereafter agreed to work for ABN.
 
Bill of Particulars at 4 (emphasis added). In response to request 7, seeking particulars of the alleged arrangement for employment, the Government responded again:
 
The Government alleges that the defendant had an arrangement for employment with ABN on December 7, 1976; December 22, 1976; April 21, 1977; May 10, 1977; May 17, 1977; June 21, 1977 and June 24, 1977.
 
But with respect to the arrangement, the Government conceded that:
 
We do not know where or with whom the arrangement was made nor do we know when it began, whether it was written or oral or whether a date for employment had been arranged. The defendant has admitted discussing employment with Edward Weitzen on or about June 10, 1977 and soon thereafter agreed to work for ABN.
 
Bill of Particulars, at 4 (emphasis added). *fn4"
 
The term "arrangement concerning prospective employment" means a plan or agreement with respect to future employment. *fn5"
 
The term "negotiating" means submitting and considering offers until an acceptable offer is made, and accepted, or until it becomes apparent that no acceptable offer will be made. The brevity or the length of this process does not remove it from ...

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