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United States v. Project On Gov't Oversight

April 10, 2008


The opinion of the court was delivered by: John D. Bates United States District Judge


A jury trial commenced in this case on February 6, 2008. After both sides presented several days of evidence and their closing arguments, the case went to the jury on February 11, 2008. On that same day, the jury returned a verdict finding that the government had proved by a preponderance of the evidence that both the Project on Government Oversight ("POGO") and Robert Berman had violated 18 U.S.C. § 209(a). After the verdict was issued, POGO and Berman renewed their motions for judgment as a matter of law and also moved for a new trial. The Court established a briefing schedule for those motions and also ordered supplemental briefing concerning the appropriate penalty, if any, to impose in this case pursuant to 18 U.S.C. § 216(b). Those fully briefed motions are presently before the Court. Upon careful consideration, and for the reasons set forth below, the Court will deny defendants' motions and impose civil penalties as indicated.


After two full rounds of summary judgment briefing, a trip to the D.C. Circuit and back, a decision on a motion to dismiss, and a litany of motions in limine, this case finally proceeded to trial on February 6, 2008.*fn1 In its case-in-chief, the government attempted to demonstrate that POGO paid -- and Berman received -- an award that contributed to or supplemented Berman's salary as an employee of the Department of the Interior ("DOI") in violation of § 209(a). The government called four witnesses: (1) Danielle Brian; (2) H. Theodore Heintz, Jr.; (3) Robert Berman; and (4) Patricia Davis. Ms. Brian testified that Berman assisted her in understanding oil royalty issues generally, and crafting appropriate Freedom of Information Act ("FOIA") requests specifically. She also testified that upon receipt of its first installment share of the qui tam settlement proceeds, POGO issued a "public service award" to Berman in the amount of $383,600 for his "decade-long public-spirited work" in connection with revealing the supposed fraud perpetuated by the oil companies. See Pl.'s Opp'n Dckt. #104 at 4 (quoting Gov. Ex. 2).*fn2

Theodore Heintz, Berman's immediate supervisor, testified that Berman was the so-called lead analyst on oil royalty issues at the Office of Policy Analysis at DOI for a period of "'roughly 10 years' from the mid-'80s to the mid-'90s." Id. at 5 (quoting Tr. Day 2 at 81:12-20). Mr. Heintz identified several memoranda written by Berman on that subject; he stated that he had often reviewed them and passed them up the chain to his superiors within the Office. In addition, Mr. Heintz had memorialized Berman's official responsibilities in various reports for purposes of evaluating Berman's job performance. Many of those documents indicated that Berman had worked on oil royalty issues at various points throughout his tenure at DOI. On cross-examination, counsel for both defendants vigorously questioned Mr. Heintz concerning his recollection of the time period during which Berman had analyzed oil royalty issues and on the extent of Heintz's knowledge regarding Berman's participation in those matters. Mr. Heintz admitted to defense counsel that his statement during his deposition that Berman had worked on an inter-agency task force regarding oil royalties was inaccurate. Although Berman was not involved with the task force, Mr. Heintz had mistakenly assumed that he was so involved due to Berman's expertise on the issues. Mr. Heintz also admitted that although he was aware that at some point Berman was told not to work on oil royalty issues any further. Mr. Heintz could not recall the precise date of that occurrence.

Next up was Berman. On direct examination, he testified that "'POGO had [given him] the check because [he] had tried to bring the undervaluation issue to the attention of people within the Department of Interior.'" Id. at 6 (quoting Tr. Day 3 at 160:22-25). Berman also confirmed that he had authored several documents on the issue of oil royalty payments that were eventually cited in POGO's investigative report "Drilling for the Truth: More Information Surfaces on Unpaid Oil Royalties." The government moved those documents into evidence. See Gov. Exs. 7, 8. Previously, Ms. Brian had testified that she relied upon those documents (which she obtained via her FOIA request) and Berman's assistance through various telephone calls to develop the investigative report. See, e.g., Tr. Day 1 at 162:16-163:10, 165:7-174:13. Berman confirmed that in 1996 he had edited the preamble of a Mineral Management Services rule- making proposal concerning oil royalty payments (in conjunction with William Bettenberg) but he maintained that was the extent of his involvement in that process.

Finally, the government called Patricia Davis, an employee of the Department of Justice, to testify to the mechanics of qui tam suits and the specifics of DOJ's investigation into POGO's payment to Berman. The government then rested. POGO initiated its defense by calling Mark Guiton, a staffer at the time of Congressional hearings concerning oil royalty under-payments, to testify to the circumstances that brought Berman before Congress. Finally, POGO called Lon Packard, outside counsel for POGO on various matters. Mr. Packard testified that he disclosed to Ken Dodd, an attorney at DOJ, POGO's intention to make the payment to Berman prior to consummating the transaction. According to Mr. Packard, DOJ did not instruct him to refrain from making the payment at that time. POGO and Berman then rested, and the government offered no rebuttal case.

In closing argument, the government argued that it had adequately demonstrated the requisite link between POGO's payment of $363,800 and Berman's governmental work product. That link, the government maintained, was established by POGO's own admission that it compensated Berman for his public-spirited work on oil royalty issues; in fact, the government produced evidence that Ms. Brian had stated that the purpose of the payment was to compensate the individuals who had been advocating for this position for years within the government. Moreover, the inclusion of Berman's memoranda -- which the government argued constituted his official DOI work product pursuant to the testimony of Mr. Heintz -- reinforced the conclusion that POGO had paid Berman for his DOI services, according to the government. Those memoranda, the government asserted, were written on government time while Berman was drawing a salary from DOI. Indeed, in closing the government noted that Berman "froze" when asked if drafting those memoranda were part of his job responsibilities. See Tr. Day 5 at 27:8. As the government argued to the jury, Berman's position as an economist at the Office of Policy Analysis required that he do precisely what he did in this case: analyze DOI policy and make suggestions for improvement. That DOI decision-makers did not ultimately adopt Berman's suggestions did not transform his work in that regard into unofficial whistle-blowing activity, the government insisted.

POGO and Berman, on the other hand, both argued to the jury that the government had utterly failed to demonstrate the required causal link. Berman assailed Mr. Heintz's credibility in light of his mistaken deposition testimony concerning the task force, as well as his inability to recall several dates with precision. He also made much of the fact that the government never instructed POGO not to make the payment to Berman after Dodd was notified of POGO's intention to do so. Berman's work on oil royalties fell outside of the official scope of his duties, he argued, because he had been expressly instructed to cease working on the issue by his superiors at DOI. He also attempted to draw a distinction between work containing detailed economic analysis, which is "official" work as he would have it, and the periodic updates that he sent to his supervisors at DOI concerning oil royalties litigation, which he characterized as outside of his official job responsibilities. For its part, POGO also focused on the fact that Berman was excluded from working on oil royalty issues at some point in 1993 or 1994. POGO emphasized that Berman appeared before Congress to testify on that matter as a whistle-blower; DOI, POGO asserted, had no intention of sending Berman to testify before Congress in an official capacity. According to POGO, most of Berman's work on oil royalties was performed before POGO even became involved in the issue. That, in turn, indicates that POGO did not compensate Berman for the memoranda that he authored, the argument goes. POGO also suggested that its payment could not have been in compensation for Berman's job responsibilities because POGO itself was unaware of what Berman's official duties entailed.

On rebuttal, the government stressed that POGO's investigative report contained citations to many of Berman's memoranda and other documents prepared on the job. And those documents were obtained through a FOIA request, which indicates that they were official government documents: after all, the government argued, the only documents released through FOIA are government documents. The government also reiterated that Ms. Brian affirmed that the payment was for "Mr. Berman's years of bringing this issue on the undervaluation of oil royalties to the attention of his superiors." See Tr. Day 5 at 81:13-15. In short, the government asserted that when Berman was reporting on the undervaluation of oil royalties -- the activity that defendants refer to as whistle-blowing -- he was simply doing the job that he was paid to do by the federal government. On that note, the case went to the jury, which promptly returned a verdict in favor of the government.


The Federal Rules of Civil Procedure provide that a Court may "grant a new trial on all or some of the issues . . . after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal law." See Fed. R. Civ. P. 59(a). The decision to grant a new trial falls within the sound discretion of the trial court. See Hutchinson v. Stuckey, 952 F.2d 1418, 1420 (D.C. Cir. 1992). "[M]indful of the jury's special function in our legal system and hesita[nt] to disturb its findings," Nyman v. FDIC, 967 F. Supp. 1562, 1569 (D.D.C. 1997), a court should only grant a new trial "'where the court is convinced the jury verdict was a seriously erroneous result' and where denial of the motion will result in a 'clear miscarriage of justice.'" Martinez v. District of Columbia, 503 F. Supp. 2d 353, 355 (D.D.C. 2007) (quoting Nyman, 967 F. Supp. at 1569) (internal quotations omitted). "Generally, a new trial may only be granted when a manifest error of law or fact is presented." In re Lorazepam & Clorazepate Antitrust Litig., 467 F. Supp. 2d 74, 87 (D.D.C. 2006).

Pursuant to Fed. R. Civ. P. 50(a), a court may grant judgment as a matter of law during or after "a jury trial . . . [if] the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue." See Fed. R. Civ. P. 50(a)(1). In entertaining a "motion for judgment as a matter of law, the court should review all of the evidence in the record." Reeves v. Sanderson Plumbing Prods., Inc., 540 U.S. 133, 150 (2000). "[T]he court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Id. "Entry of judgment as a matter of law under Rule 50 is warranted only if 'the evidence and all reasonable inference that can be drawn therefrom are so one-sided that reasonable men and women could not have reached a verdict in plaintiff's favor.'" Alkire v. Marriott Int'l., Inc., 2007 WL 1041660 at *1 (D.D.C. Apr. 5, 2007) (quoting McGill v. Munoz, 203 F.3d 843, 845 (D.C. Cir. 2000)).


I. Defendants' Motions for a New Trial

In support of its motion for a new trial, POGO argues that "[o]f course, in this case . . . a manifest error of law occurred." POGO's Mot. Dckt. #100 at 2. POGO takes the Court to task for rejecting its position that § 209(a) has a specific mens rea element, and thereby improperly converting § 209(a) into a strict liability offense. Moreover, POGO generally maintains that evidence of its intent in making the payment to Berman should have been admissible throughout the proceedings. Berman joins those complaints and also adds that the Court erred in two additional ways. First, Berman insists, the Court erroneously failed to instruct the jury that a lump-sum payment does not constitute a contribution to or supplementation of "salary" for purposes of § 209(a). Second, the Court neglected to instruct the jury concerning what activities constitute Berman's official government work product. As Berman would have it, the Court should have instructed the jury that only "assigned tasks as an economist," see Berman's Mot. Dckt. #101 at 2, amount to his official duties. In ...

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