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UNITED STATES v. ESPY

August 28, 1998

UNITED STATES OF AMERICA,
v.
ALPHONSO MICHAEL ESPY, Defendant.



The opinion of the court was delivered by: URBINA

MEMORANDUM OPINION AND ORDER

 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. *fn1" 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 defendant's motions which directly challenged the sufficiency of the counts in the indictment, *fn2" but granted in part the defendant's motions seeking to strike surplusage and for a bill of particulars. See Espy, 989 F. Supp. 17 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 cooperative's 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-Diamond's appeal was this court's 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. *fn3" The heart of the defendant's attack focuses on the indictment's 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 court's 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 circuit's 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 defendant's 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 government's reconsideration motion.

 II. Analysis

 A. Denying the Defendant's 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 official's 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 defendant's 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 official's 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). *fn4" In reversing this court's 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 official's 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 official's 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 circuit's previous encounters with the gratuity statute in both United States v. Brewster,5 165 U.S. App. D.C. 1, 506 F.2d 62 (D.C. Cir. 1974) and United States v. Campbell,6 221 U.S. App. D.C. 367, 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 62 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 138 F.3d 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 defendant's argument, the Sun-Diamond court's 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." 138 F.3d 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 official's position, but rather its ability to affect and taint the performance of a public official's duties. Id. Under this interpretation the gratuity statute focuses on the official's ability to perform his public duties, i.e., "official acts," and on the precise reason why acts which seek to corrupt an official's integrity are forbidden. Interpreting the phrase "for or because of an official act" to ...


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