U.S. v. Wilson, s. 93-3053
| Citation | 26 F.3d 142 |
| Decision Date | 19 October 1994 |
| Docket Number | Nos. 93-3053,s. 93-3053 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Lance Henry WILSON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Leonard E. BRISCOE, Sr., Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Maurice David STEIER, Defendant-Appellant. to 93-3055. |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Appeal from the United States District Court for the District of Columbia (Criminal Nos. 91cr00399-02, 92cr00086-01 and 92cr00086-02).
Barry W. Levine argued the cause, for appellant Briscoe. With him on the briefs were Elaine Metlin and David B. Killalea.
Theodore V. Wells, Jr., of the bar of the U.S. Court of Appeals for the Third Circuit, pro hac vice, by special leave of the Court, argued the cause, for appellant Wilson. With him on the briefs were Martha P. Rogers and Robert L. Krakower.
Maurice David Steier argued and filed briefs pro se.
Bruce C. Swartz, Deputy Independent Counsel, argued the cause for appellee. With him on the brief were Arlin M. Adams, Independent Counsel, Roscoe C. Howard, Jr., Ltd. and Dianne J. Smith, Associate Independent Counsels, and Eric H. Holder, Jr., U.S. Atty.
Before WALD, EDWARDS, and RANDOLPH, Circuit Judges.
Opinion for the Court filed by Circuit Judge WALD.
This case arose out of an investigation into abuses and mismanagement at the Department of Housing and Urban Development ("HUD") initiated by Congress in 1989. In March 1990, on petition of the Attorney General, a special division of this court appointed an independent counsel pursuant to the Ethics in Government Act of 1978 ("Ethics Act" or "Act"), Sec. 601(a), as amended, 28 U.S.C. Sec. 593(b) (1988), to pursue the investigation. At the close of the investigation, defendants were prosecuted for involvement in an alleged bribery and kickback scheme to obtain HUD Urban Development Action Grants ("UDAGs") for real estate developments in Florida and Texas. Appellants were acquitted on all but the illegal gratuities counts, 18 U.S.C. Sec. 201(c)(1)(A), which are now challenged on appeal. For reasons stated below, we reverse the conviction of Lance Henry Wilson because the illegal gratuity charge was brought more than five years after his commission of the alleged offense and was thus time barred under the applicable statute of limitations, 18 U.S.C. Sec. 3282, which defendant Wilson had not waived. After a searching review of appellant Briscoe's and appellant Steier's many challenges, we affirm their convictions, addressing in detail only those contentions we believe merit elaboration.
In 1989, after Congress had conducted hearings on alleged abuses and mismanagement at HUD, the Attorney General, acting pursuant to the Ethics Act, Sec. 601(a), as amended, 28 U.S.C. Sec. 592(c), "appl[ied] to the division of [this] court for the appointment of an independent counsel." Cf. Morrison v. Olson, 487 U.S. 654, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988) (). On March 1, 1990, the special division granted the Attorney General's application and several months later expanded the independent counsel's investigative and prosecutorial jurisdiction to cover any federal criminal violations committed by Housing Secretary Samuel R. Pierce, Jr., or others in relation to, inter alia, the administration of the UDAG program, as well as any "additional matters related to the [i]ndependent [c]ounsel's prosecutorial jurisdiction referred to [i]ndependent [c]ounsel by the Attorney General." In re Samuel R. Pierce, Jr. at 2 (D.C.Cir.Sp.Div. No. 89-5 July 1, 1990).
DuBois Gilliam, the former Deputy Assistant Secretary for Program and Policy Development and Evaluation at HUD, who was at the center of the alleged criminal activities, testified before Congress pursuant to a grant of immunity. On May 31, 1990, he agreed to cooperate with the Office of the Independent Counsel ("OIC"), and one month later he further agreed to cooperate with the U.S. Attorney for the Southern District of Florida ("USAO") who had been conducting an investigation into local corruption involving the Florida and Texas real estate developer Leonard E. Briscoe. Gilliam alleged that, while he was at HUD, he accepted false "firm financial commitment letters" prepared by Lance Henry Wilson of PaineWebber, Inc. who had previously been Secretary Pierce's Executive Assistant. These letters would attest that the private developer, i.e., Leonard E. Briscoe, had secured a firm private commitment to finance and carry out the proposed UDAG project prior to preliminary HUD approval. Without evidence of such a financial commitment for any given project, HUD would not approve UDAG matching funds.
According to the government, representatives of the OIC and the Florida USAO met in July, 1990, and decided to coordinate their investigative efforts. The Florida USAO would continue its ongoing examination of alleged illegal activities centered around Briscoe's Florida activities, while the OIC would focus on the scheme to obtain UDAG funds with the help of false firm financial commitment letters.
As the investigation in the Southern District of Florida finalized, it became clear that forthcoming indictments would overlap considerably with the subject matter of the OIC's jurisdiction. On June 12, 1991, the OIC authorized the USAO in writing to seek the contemplated indictments. That same day the Florida U.S. Attorney obtained two indictments, the first charging a kickback scheme with a local contractor (not at issue here) and the second charging that Briscoe and his attorney M. David Steier had conspired to bribe and provide illegal gratuities to DuBois Gilliam to obtain approval for UDAG funding for three Florida projects, the Wedgewood Plaza Apartments, Wedgewood Plaza Mall, and Palm Glade Apartments, in violation of 18 U.S.C. Secs. 2, 201(b)(1)(A), 201(b)(1)(B), 201(c)(1)(A) & 371.
Barely one month later in Washington, D.C., the OIC sought its first indictment of Briscoe charging various crimes in connection with the firm financial commitment letters for the Wedgewood Plaza Mall project. This indictment, however, was to be superseded three times. On November 21, 1991, the District of Columbia grand jury returned the first superseding indictment against Briscoe, adding charges relating to a project in Ft. Worth, Texas, known as Overton Ridge. On January 14, 1992, the D.C. grand jury returned a second superseding indictment adding charges in connection with the Palm Glade project and naming Lance Wilson as a defendant for the first time. The second superseding indictment charged Wilson for the first time with conspiracy and illegal gratuity. (Briscoe was alleged to have participated in, but was not indicted for the conspiracy with Wilson.) Two weeks later, Leonard Briscoe, without objection by his co-defendant Steier, successfully moved to transfer both Florida cases to the District of Columbia.
Finally, on May 19, 1992, the D.C. grand jury returned a third superseding indictment, adding Briscoe and Steier to the conspiracy count. Shortly thereafter, the government successfully moved to consolidate the OIC and Florida indictments and set them down for trial.
The government's case was built on the theory that beginning in 1985, Gilliam (an unindicted co-conspirator) agreed to accept false firm financial commitment letters prepared by Wilson, then at PaineWebber. Gilliam would make certain that HUD awarded UDAG funds (sometimes in excess of HUD staff estimates) to the projects developed by Briscoe. Attorney Steier allegedly set up a company, "Northwest Investment Corporation," for the purposes of surreptitiously funneling illegal payments from Briscoe to Gilliam.
After a three month jury trial Briscoe was convicted on the two illegal gratuity counts which originated in the Florida USAO indictment and was acquitted on all other counts; Wilson was convicted on one illegal gratuity count which first appeared in the OIC's second superseding indictment and acquitted of the remaining 21 counts; Steier was convicted of one illegal gratuity count originating in the Florida indictment and acquitted of the remaining five charges in which he was named as a defendant. This appeal followed.
The Ethics in Government Act, Sec. 601(a), 28 U.S.C. Sec. 597(a), provides:
Whenever a matter is in the prosecutorial jurisdiction of an independent counsel or has been accepted by an independent counsel under section 594(e), the Department of Justice, the Attorney General, and all other officers and employees of the Department of Justice shall suspend all investigations and proceedings regarding such matter, except to the extent required by section 594(d)(1), and except insofar as such independent counsel agrees in writing that such investigation or proceedings may be continued by the Department of Justice.
Although the OIC for this case was established in March 1990, it was not until over fourteen months later, on the same day the Florida indictment was obtained, that the OIC for the first time authorized in writing the USAO's "investigation and, if appropriate, prosecution of ... a possible conspiracy among Leonard Briscoe, David Steier, and others to bribe a government official, DuBois Gilliam." Letter from Arlin M. Adams, Independent Counsel, to Dexter W. Lehtinen, Office of the United States Attorney for the Southern District of Florida (June 12, 1991). Briscoe and Steier argue that, as a result, the Florida investigation was never duly authorized and the subsequent indictment was fatally flawed.
Appellants contend further that even if the written authorization of June 12, 1991,...
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