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UNITED STATES v. BAIRD

November 12, 1991

United States of America,
v.
David P. Baird



The opinion of the court was delivered by: RICHEY

 On January 27, 1989, the bury returned a verdict in the above-captioned case finding the defendant David P. Baird guilty of violating 18 U.S.C. § 203(a) and (c), the federal conflict of interest statute. Now before the Court is a motion by the defendant for a new trial, based on newly discovered evidence.

 Upon careful consideration of defendant's motion, the supporting and opposing legal memoranda, and the underlying law, the Court shall deny the defendant's motion, because the evidence does not change the defendant's liability under the statute and would not result in an acquittal in the event of a new trial.

 I. Background

 Trial was held in this matter commencing on January 23, 1989, and resulting in the defendant's conviction. The defendant then filed a motion for judgment of acquittal, which was denied by this Court on May 1, 1990. See Opinion, United States v. David P. Baird, 778 F. Supp. 534 (D.D.C. 1990) (attached hereto). The defendant was sentenced on June 1, 1990, to one year incarceration, execution of sentence suspended, and placed on one year's probation, with the requirement that he complete 200 hours of community service, pay a special assessment of $ 50, and not hold any future positions in the federal government. *fn1"

 The defendant filed a notice of appeal on June 11, 1990. The court of appeals issued a briefing schedule on November 23, 1990, which was suspended on February 14, 1991 pending the filing and resolution of the defendant's motion for a new trial in the district court. The motion for a new trial was filed in this Court on May 21, 1991, and finally became ripe for decision on October 31, 1991, when all the relevant papers and pleadings were before the Court. *fn2"

 The defendant now moves for a new trial because he asserts that he has acquired new evidence regarding his proper classification in the Coast Guard. The defendant says that the new evidence, in the form of amended orders, shows that he should have been classified as a Reserve Officer serving on "temporary active duty for other than training" ("TEMAC"), rather than as serving on "active duty for training" ("ADT") or "special active duty for training" ("SPACDUTRA") at the time set forth in the Indictment. See Def.'s Mot. for New Trial, Ex. 3. This difference is significant, the defendant contends, because a reserve officer on TEMAC is not a "special government employee" within the jurisdiction of 18 U.S.C. § 203, as defined in 18 U.S.C. § 202(a), and that therefore he was not subject to § 203. The government argues that the change does not exempt the defendant from the strictures of § 203(a), because he still qualifies as a special government employee, or, if he was not a special government employee, then he was an "officer or employee" of the United States within the ambit of the statute.

 II. Analysis

 A court may grant a motion for a new trial "if required in the interests of justice." Fed. A. Crim. P. 33. Where the basis for the motion is newly discovered evidence, the defendant must show: (1) the evidence was discovered after trial; (2) the defendant was diligent in seeking to procure the evidence; (3) the evidence is not merely cumulative or impeaching; (4) the evidence is material; and (5) a new trial would probably produce an acquittal. United States v. Sensi, 279 App. D.C. 42, 879 F.2d 888, 901 (D.C. Cir. 1989), citing United States v. Kelly, 252 App. D.C. 308, 790 F.2d 130, 133 (D.C. Cir. 1986); United Stated v. Mangieri, 224 App. D.C. 295, 694 F.2d 1270, 1285 (D.C. Cir. 1982).

 Here, the defendant has failed to sustain his burden. Even if the evidence is considered newly discovered, *fn3" the defendant has failed to show that a new trial would probably produce an acquittal.

 The conflict of interest statute, 18 U.S.C. § 203, inter alia, forbids officers and employees of the federal government from seeking or receiving any compensation for representational services in any matter in which the United States is a party or has direct and substantial interest. 18 U.S.C. § 203(a). A special government employee is subject to § 203 only in more narrowly defined circumstances. 18 U.S.C. § 203(c).

 Special government employees are defined in 18 U.S.C. § 202(a):

 For the purpose of sections 203, 205, 207, 208, and 209 of this title the term "special Government employee" shall mean an officer or employee of the executive or legislative branch of the United States Government, of any independent agency of the United States or the District of Columbia, who is retained, designated, appointed, or employed to perform, with or without compensation, for not to exceed one hundred and thirty days during any period of three hundred and sixty-five consecutive days, temporary duties either on a full-time or intermittent basis . . . Notwithstanding section 29(c) and (d) of the Act of August 10, 1956 (70A Stat. 632; 5 U.S.C. 30r(c) and (d), a reserve officer of the Armed Forces, or an officer of the National Guard of the United States, unless otherwise an officer or employee of the United States, shall be classified as a special Government employee while on active duty solely for training. A Reserve officer of the Armed Forces or an officer of the National Guard of the United States who is voluntarily serving a period of extended active duty in excess of one hundred and thirty days shall be classified as an officer of the United States within the meaning of section 203 and sections 205 through 209 and 218 . . .

 The defendant argues that since his "new evidence" shows that he was allegedly not a reserve officer on active duty solely for training, he was not a special government employee and therefore not subject to § 203. However, even assuming that the defendant was not a special government employee, the Court concludes that the defendant is subject to § 203 regardless, because if he was not a special government employee, he was an officer of the United States within the meaning of § 202 and § 203.

 The statute provides that a "Reserve officer of the Armed Forces or an officer of the National Guard of the United States who is voluntarily serving a period of extended active duty in excess of one hundred and thirty days shall be classified as an officer of the United States within the meaning of section 203". 18 U.S.C. § 202(a). The defendant began one set of orders on March 7, 1985, which ran for 139 days until July 23, 1985. His next set of orders indicate service began the very next day, on July 24, 1985, and ran for 69 days until September 30, 1985. See Gov't.'s Opp. to Mot., Ex. 1. While on the date of the events charged in the Indictment, August 9, 1985, the defendant was serving under orders for less than 130 days, he had been continuously serving, at that time, for over 130 days. The statute does not specify the circumstances through which a person must be serving more than 130 days. *fn4" A common-sense interpretation of the statute would indicate that the question is the amount of time served, not the format in which the orders appeared. In other words, if an officer is in the midst of serving more than 130 days, the statute logically should apply, whether or not the orders changed at some point in the interim. A reserve officer who is in fact serving more than 130 days is not entitled to the exemption from § 203 that Congress created for reserve officers who serve less than 130 days.

 The defendant also argues that he was not an officer within the meaning of § 203(a) because it was not established that the defendant was an officer within the meaning of 5 U.S.C. § 2104(a) and 2105 (a). This argument is without merit. The only time those statutes were used to define "officer or employee" for the purposes of 18 U.S.C. § 202(a) was in the 1990 Federal Criminal Code, at 18 U.S.C. § 202(c), having been added on November 30, 1989 (eleven months after trial in this action) through the Ethics Reform Act of 1989. See Pub. L. 101-194, title IV, § 401 (November 30, 1989). On May 4, 1990, through Public Law 280, Congress amended 18 U.S.C. § 202(c) to read it as it currently appears (with no reference to 5 U.S.C. § ...


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