U.S. v. Baird, s. 90-3110
| Citation | 29 F.3d 647 |
| Decision Date | 15 July 1994 |
| Docket Number | 92-3101 and 93-3016,Nos. 90-3110,s. 90-3110 |
| Parties | , 39 Fed. R. Evid. Serv. 1195 UNITED STATES of America v. David P. BAIRD, Appellant. UNITED STATES of America v. David P. BAIRD, Appellant. UNITED STATES of America v. David P. BAIRD, Appellant. |
| 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 (87cr00076-01).
A.J. Kramer, Federal Public Defender, Washington, DC, argued the cause and filed the briefs, for appellant.
Robert T. Swanson, Asst. U.S. Atty., Washington, DC, argued the cause, for appellee. With him on the briefs, were Eric J. Holder, Jr., U.S. Atty., and John R. Fisher and Roy W. McLeese, III, Asst. U.S. Attys., Washington, DC.
Before: SILBERMAN, BUCKLEY and WILLIAMS, Circuit Judges.
Opinion for the Court filed by Circuit Judge STEPHEN F. WILLIAMS.
A jury convicted David P. Baird of violating one of the federal conflict of interest statutes, 18 U.S.C. Sec. 203. Baird challenges the judgment of conviction, questioning whether the statute covered someone like himself working on relatively short-term assignments in the Coast Guard, arguing that the crime required a showing of specific intent, and attacking the trial court's exclusion of evidence bearing on his state of mind. We reverse on the third issue.
* * *
Baird served as a full-time, active duty serviceman in the Coast Guard from 1975 until 1980, when he resigned his commission and joined the Reserves. In 1983, on being laid off from his job in the private sector, he returned to full-time military service as a Reserve officer under a series of consecutive temporary orders, assigned to either "Special Active Duty for Training" ("SADT") or "Temporary Active Duty" ("TEMAC") status. Because of downsizing in the Coast Guard, he was unable to get a permanent appointment. Two tours of this temporary duty are relevant to this proceeding: the first began on March 7, 1985, for which he received orders to serve on "effective duty for training" on a civil engineering project for a period of 139 days (ending July 23); the second began on July 24, 1985, on a different "special" project, for a TEMAC period not to exceed 69 days.
During the first of these tours of duty, Baird received a tip about a position as project manager for a firm known as International Science and Technology Institute ("ISTI"). The position involved lending technical expertise to ISTI's venture in seeking-- and then carrying out--a contract with the Coast Guard to design a system for controlling vessel traffic. Baird went to Washington, D.C. from his home in New Orleans for an interview with ISTI and to attend a meeting with the Coast Guard on behalf of ISTI, scheduled for July 3, 1985. ISTI reimbursed him for his expenses. The evidence reveals no meaningful participation by Baird at the meeting, which ended abruptly when the ISTI representatives became aware that the Coast Guard expected ISTI to present its proposal. Baird later spent time preparing for and attending a formal presentation on August 9, 1985, and received $800 for his time (16 hours at $50 an hour), plus expenses. In the August meeting Baird was introduced as a Reservist and the project manager for ISTI, and explained technical aspects of ISTI's proposal to representatives of the Coast Guard, the Small Business Administration and the Department of Transportation.
The government investigated Baird's participation in this meeting and secured first one and then a superseding indictment. It charged, in one count, a violation of 18 U.S.C. Sec. 203, which prohibits various government personnel from lobbying for compensation. The jury returned a guilty verdict. The district court denied Baird's motion for judgment of acquittal, 778 F.Supp. 534 (D.D.C.1990), and on June 1, 1990 sentenced him to a year in prison (suspended--the offense was pre-Guidelines), placed him on probation with a condition that he perform 200 hours of community service, and, as 18 U.S.C. Sec. 203 requires, barred him from any future federal employment. Baird filed a timely notice of appeal from the judgment. Seven months later, he filed a motion for a new trial based on newly discovered evidence, which was denied by the district court on November 12, 1991. 778 F.Supp. 540 (D.D.C.1991).
* * *
First, a jurisdictional issue: Although Baird did not file a timely notice of appeal from the denial of his motion for a new trial, this failure does not bar our review of errors that had been properly preserved independently of that motion. Under the version of Rule 4(b) of the Federal Rules of Appellate Procedure in place during 1990-91, a post-judgment motion did not nullify a notice of appeal filed prior to its resolution unless the motion was of a type specified in the rule as extending the time limit for filing the notice, and in some circuits not even then. See Fed.R.App.P. 4(b), Notes of Advisory Committee on 1993 Amendment, subdivision (b). 1 As Baird filed his motion for a new trial on the basis of newly discovered evidence long after the 10-day period specified in Rule 4(b), the motion neither extended the deadline for his notice of appeal nor nullified his prior notice.
Statutory coverage. Baird argues that he was neither an "officer or employee of the United States" nor a special government employee, subject to the statute invoked against him. We agree that he was not a special employee but conclude that he was a regular officer.
At the time of Baird's association with ISTI, Sec. 203(a) imposed criminal penalties on anyone who:
otherwise than as provided by law for the proper discharge of official duties, directly or indirectly receives or agrees to receive, or asks, demands, solicits, or seeks, any compensation for any services rendered or to be rendered either by himself or another--
....
(2) at a time when he is an officer or employee of the United States in the executive, legislative, or judicial branch of the Government ...
in relation to any proceeding ... in which the United States is a party or has a direct and substantial interest, before any department, agency ... or any civil, military or naval commission.
18 U.S.C. Sec. 203(a) (1982). In addition, Sec. 203(c) subjects "special government employees" to the same sanctions, but under more limited circumstances. 2 Section 202 defines a special government employee as including, as its core instance:
an officer or employee of the executive or legislative branch of the United States Government ... 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....
18 U.S.C. Sec. 202(a) (1982).
The superseding indictment invoked both principles of coverage, charging Baird with being "an officer or employee of the United States ... and [ ] a special government employee". At trial, the government focused its proof on whether Baird was a special employee, and the jury instructions centered around the controlling definition of special employees in Sec. 202. Baird argues that he did not fulfill the conditions for being a special government employee because he served more than 130 days in the 365-day period preceding his alleged violation and does not fit, he says, into any of the other kinds of employees classified in Sec. 202 as special without regard to the number of days worked. The government now essentially concedes that Baird was not a special government employee, but contends that he was a regular officer or employee.
We agree with Baird that he cannot be considered a special government employee. The core definition, located in the first (quoted) sentence of Sec. 202, encompasses those employees retained to perform "temporary duties" "not to exceed one hundred thirty days during any period of three hundred and sixty-five consecutive days". Baird's two tours of duty clearly aggregate more than 130 days (at least 139 for the first and 69 for the next). Indeed, by the time of the August meeting, he had been employed by the Coast Guard for at least 156 days (139 days plus 17 days into the second tour). Thus, he fell outside the primary instance of special government employees.
Section 202 also identifies three types of workers as special government employees without regard to the 130-day cap. We agree with Baird that he belongs to none of them. He is clearly not a "person serving as a part time local representative of a Member of Congress in the Member's home district or State". Nor was he at the time of the August meeting a "Reserve officer ... while on active duty solely for training"; he was then on a TEMAC special project, not "solely" for training. Finally, he was not a "Reserve officer ... who is serving involuntarily"; he was serving entirely of his own volition.
That Baird is not a special employee does not get him off the hook. Section 202 contains another clause specially directed to certain Reserve officers not qualifying as special employees:
A Reserve officer ... 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....
The government reads this as bringing within the category of regular "officer of the United States" any Reserve officer who serves in excess of the 130-day cap and does not fall within the exception clauses for service that is either involuntary or solely for training.
Baird answers that his second tour of duty--the one he was serving at the time of the August meeting--was only 69 days, so that he was not "serving a period of extended active duty in excess of one hundred and thirty days". Thus, he says, he cannot be covered.
There...
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