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October 5, 2000


The opinion of the court was delivered by: Robertson, District Judge.


Archibald Schaffer was convicted on June 26, 1998 of one count of violating the Meat Inspection Act, 21 U.S.C. § 622. On September 25, 2000, he was sentenced to serve one year and one day in prison and to pay a fine of $5000. This opinion, filed with the Judgment, sets forth the reasons for the sentence.

The facts of the case are recited in four published opinions and will not be repeated here unnecessarily. See United States v. Schaffer, 214 F.3d 1359 (D.C.Cir. 2000) ("Schaffer II "); United States v. Schaffer, 183 F.3d 833 (D.C.Cir. 1999) ("Schaffer I"); United States v. Williams, 29 F. Supp.2d 1 (D.D.C. 1998); United States v. Williams, 7 F. Supp.2d 40 (D.D.C. 1998).

1. The Guidelines Calculation

a. Base offense level

Appendix A of the Sentencing Guidelines Manual lists the guideline that is "ordinarily applicable to the statute of conviction." U.S.S.G., App. A. "[I]n an atypical case," however, "the guideline section indicated for the statute of conviction [might be] inappropriate because of the particular conduct involved." Id. In such a case, the sentencing court should "use the guideline section most applicable to the nature of the offense conduct in the count of which the defendant was convicted." Id.

Appendix A matches 21 U.S.C. § 622, the statute of conviction in this case, with U.S.S.G. § 2C1.1, the guideline for bribery and extortion. This is clearly not a case of bribery or extortion, however. The Independent Counsel neither charged nor proved any quid pro quo. The majority of offenses described in the Act may fall under the rubric of bribery, but the conduct charged and proved in this case is more akin to a gratuity. (Indeed, the Court of Appeals has acknowledged that the Meat Inspection Act "contains a less rigorous intent requirement than the federal gratuity statute." Schaffer I, 183 F.3d at 847 (emphasis added); see id. at 846 n. 16). I find that the Guidelines section most applicable to Mr. Schaffer's offense conduct is § 2C1.2, which governs the offering, giving, soliciting, or receiving of a gratuity. The base offense level for § 2C1.2 is seven.

b. Specific offense characteristics

The parties agree that, under § 2C1.2, an eight-level enhancement applies if the "gratuity was given . . . to an elected official or any official holding a high-level decision-making or sensitive position." U.S.S.G. § 2C1.2. The jury found that the gratuity in this case was meant to influence A. Michael Espy, the then-Secretary of Agriculture, who unquestionably held a high-level decisionmaking position. Thus, I find that the eight-level enhancement applies pursuant to § 2C1.2 (b)(2)(B).

c. Role in the offense

The Independent Counsel argues that Mr. Schaffer played the role of an organizer, leader, manager, or supervisor in the offense, so that a two-level enhancement is appropriate under § 3B1.1(c). Mr. Schaffer contends that he was only a minimal participant in the offense, and that § 3B1.2(a) therefore requires a four-level deduction.

Application note 3 to § 3B1.3 defines a "minor participant" as one who is "less culpable than most other participants, but whose role could not be described as minimal." In my judgment, Mr. Schaffer's role fits that formulation exactly. The Meat Inspection Act violation involved the gratuitous provision of travel, lodging, and amenities in connection with John Tyson's birthday party. Mr. Schaffer did not extend the invitation, plan the party, or directly furnish any part of the gratuity. The only act he performed that furthered the giving of the gratuity was contacting the Department of Agriculture and making the travel arrangements.

The jury may have believed that Secretary Espy's speech to the APF was a sham and that Mr. Schaffer's handling of the APF invitation to Russellville was probative of a guilty intent in making the travel arrangements. Mr. Schaffer's acts with regard to the APF event, however, offended no law. Evidence of those acts was relevant to prove Mr. Schaffer's intent to violate the Meat Inspection Act. The acts that comprised the actual offense involved more than one culpable participant — a corporation that paid a fine and other officials of Tyson Foods who were given immunity. Mr. Schaffer's culpability was relatively minor compared with that of the others. See United States v. Edwards, 98 F.3d 1364, 1370 (D.C.Cir. 1996); United States v. Caballero, 936 F.2d 1292, 1299 (D.C.Cir. 1991).

The Fourth Circuit's test for evaluating a role in the offense adjustment, see United States v. Palinkas, 938 F.2d 456, 460 (4th Cir. 1991), vacated on other grounds, 503 U.S. 931, 112 S.Ct. 1464, 117 L.Ed.2d 610 (1992), is instructive: one cannot call Mr. Schaffer's ministerial role in arranging air transportation immaterial (i.e., minimal), but it certainly was not essential. "Facilitator" is a more suitable description of Mr. Schaffer's role in the offense ...

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