Espy, In re, 94-2

Citation317 U.S.App.D.C. 25,80 F.3d 501
Decision Date01 April 1996
Docket NumberNo. 94-2,94-2
PartiesIn re Alphonso Michael (Mike) ESPY. Division . (Division for the Purpose of Appointing Independent Counsels Ethics in Government Act of 1978, as Amended)
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Before: SENTELLE, Presiding, and BUTZNER and FAY, Senior Circuit Judges.

Opinion for the Special Court filed PER CURIAM.

PER CURIAM:

Independent Counsel Donald C. Smaltz submits an application for referral of a related matter under section 594(e) of the Ethics in Government Act of 1978, as amended, 28 U.S.C. § 591-599 (1994) ("the Act"). For the reasons set forth below, the application is granted.

INTRODUCTION

This court appointed Donald C. Smaltz as Independent Counsel ("IC") in the matter In re Alphonso Michael (Mike) Espy, No. 94-2, on September 9, 1994, in response to the Attorney General's application under section Donald C. Smaltz ... is hereby appointed Independent Counsel with full power, independent authority, and jurisdiction to investigate to the maximum extent authorized by the Independent Counsel Reauthorization Act of 1994 whether Alphonso Michael (Mike) Espy, Secretary of Agriculture, has committed a violation of any federal criminal law, other than a Class B or C misdemeanor or infraction, relating in any way to the acceptance of gifts by him from organizations or individuals with business pending before the Department of Agriculture.

                592(c)(1)(A) for the appointment of an independent counsel with the authority to investigate whether Alphonso Michael (Mike) Espy, Secretary of Agriculture, committed a violation of any federal criminal law relating in any way to the acceptance of gifts by him from organizations or individuals with business pending before the Department of Agriculture.   The order appointing IC Smaltz set forth his jurisdiction as follows
                

The Independent Counsel shall have jurisdiction and authority to investigate other allegations or evidence of violation of any federal criminal law, other than a Class B or C misdemeanor or infraction, by any organization or individual developed during the Independent Counsel's investigation referred to above and connected with or arising out of that investigation.

The Independent Counsel shall have jurisdiction and authority to investigate any violation of 28 U.S.C. § 1826, or any obstruction of the due administration of justice, or any material false testimony or statement in violation of federal criminal law, in connection with any investigation of the matters described above.

The Independent Counsel shall have jurisdiction and authority to seek indictments and to prosecute any organizations or individuals involved in any of the matters described above, who are reasonably believed to have committed a violation of any federal criminal law arising out of such matters, including organizations or individuals who have engaged in an unlawful conspiracy or who have aided or abetted any federal offense.

The Independent Counsel shall have all the powers and authority provided by the Independent Counsel Reauthorization Act of 1994. It is

FURTHER ORDERED by the Court that the Independent Counsel, as authorized by 28 U.S.C. § 594, shall have prosecutorial jurisdiction to fully investigate and prosecute the subject matter with respect to which the Attorney General requested the appointment of independent counsel, as hereinbefore set forth, and all matters and individuals whose acts may be related to that subject matter, inclusive of authority to investigate and prosecute federal crimes (other than those classified as Class B or C misdemeanors or infractions) that may arise out of the above described matter, including perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses.

IC Smaltz has filed an application for referral of a related matter pursuant to section 594(e). This section provides

An independent counsel may ask the Attorney General or the division of the court to refer to the independent counsel matters related to the independent counsel's prosecutorial jurisdiction, and the Attorney General or the division of the court, as the case may be, may refer such matters. If the Attorney General refers a matter to an independent counsel on the Attorney General's own initiative, the independent counsel may accept such referral if the matter relates to the independent counsel's prosecutorial jurisdiction. If the Attorney General refers any matter to the independent counsel pursuant to the independent counsel's request, or if the independent counsel accepts a referral made by the Attorney General on the Attorney General's own initiative, the independent counsel shall so notify the division of the court.

28 U.S.C. § 594(e). In the application, IC Smaltz states that, during the course of his investigation, he has developed substantive evidence of violations of federal criminal law by associates of Secretary Espy in matters related to the original grant of jurisdiction wherein the persons involved, patterns of conduct, witnesses, underlying facts, and applicable The Department of Justice ("DOJ") opposes IC Smaltz's application for referral on two grounds. First, DOJ argues that section 594(e) must be read to require the concurrence of the Attorney General before this court can refer related matters to an independent counsel. Second, DOJ maintains that the new matter is not sufficiently connected to IC Smaltz's original grant of jurisdiction to meet section 594(e)'s requirement that the matter to be referred be related to the independent counsel's current prosecutorial jurisdiction.

law overlap with his investigation of whether Secretary Espy accepted gifts from organizations or individuals with business pending before the Department of Agriculture.

DISCUSSION
A. Can the court refer a related matter under section 594(e)?

As noted above, section 594(e) gives an independent counsel a choice between asking the Attorney General or the special division for referral of a related matter and further states that either the Attorney General or the court may refer such matters. Reminding the court that "it is the duty of federal courts to construe a statute in order to save it from constitutional infirmities," Morrison v. Olson, 487 U.S. 654, 682, 108 S.Ct. 2597, 2614, 101 L.Ed.2d 569 (1988), DOJ maintains that the section must be interpreted as requiring the concurrence of the Attorney General in such a referral to avoid the constitutional problems that would be created by permitting judicial allocation of prosecutorial jurisdiction over the objection of the Executive Branch. See, e.g., United States v. Nixon, 418 U.S. 683, 693, 94 S.Ct. 3090, 3100, 41 L.Ed.2d 1039 (1974) (noting that the Executive Branch has exclusive authority to decide whether to prosecute a case); Morrison v. Olson, 487 U.S. at 680, 108 S.Ct. at 2613 (observing that one purpose of prohibiting a court's exercise of executive or administrative duties of a nonjudicial nature is to maintain the separation between the Judiciary and the other branches of government by ensuring that judges do not encroach upon executive or legislative authority). In Morrison v. Olson, the Court considered the various powers the Act bestowed on this court and concluded that they "do not impermissibly trespass upon the authority of the Executive Branch." 487 U.S. at 680-81, 108 S.Ct. at 2613. This, in turn, lead the Court to the conclusion that the Act as a whole "does not violate the separation-of-powers principle by impermissibly interfering with the functions of the Executive Branch." Id. at 696-97, 108 S.Ct. at 2622. DOJ argues that construing section 594(e) as IC Smaltz urges, however, would constitute a significant encroachment on executive power and would therefore violate the separation-of-powers principles elucidated in Morrison v. Olson.

In In re Olson, 818 F.2d 34, 47 (D.C.Cir.1987), the court considered a previous version of section 594(e) 1 and concluded that it could not refer a matter that the Attorney General had already determined under section 592(b)(1) should not be pursued. Though recognizing that Olson does not plainly dispose of the instant question because the Attorney General has not already determined under section 592(b)(1) that the instant matter should not be pursued, DOJ argues that Olson's logic leads to the conclusion that the affirmative concurrence of the Attorney General is required before the court can refer any matter to an independent counsel. Otherwise, DOJ asserts, an independent counsel, going directly to the court for authority over additional matters, as IC Smaltz has done, could sidestep the restrictions imposed by Olson and implied by the overall structure of the Act. See id. at 47 (observing that to permit the court to refer allegations to the IC when the Attorney General has specifically determined under section IC Smaltz responds that the statute must be interpreted in accordance with its plain meaning, noting that "[c]ourts are not authorized to rewrite a statute because they might deem its effects susceptible of improvement." Badaracco v. Commissioner of Internal Revenue, 464 U.S. 386, 398, 104 S.Ct. 756, 764, 78 L.Ed.2d 549 (1984). The requirement of the Attorney General's affirmative concurrence in a referral appears nowhere in the statute, and IC Smaltz argues that DOJ's request that the statute be interpreted to include such a requirement is no more than a demand that this court legislate into the statute a provision that Congress was at pains to exclude, as evidenced by the legislative history of the amendments to section 594(e) following the decision in Olson. Specifically, IC Smaltz argues that in 1987, after Olson, Congress proposed amendments to section 594(e), with the Senate version requiring the Attorney General's approval both for a referral under section 594(e) and for an expansion...

To continue reading

Request your trial
24 cases
  • United States v. Manafort
    • United States
    • U.S. District Court — District of Columbia
    • 15 Mayo 2018
    ...nature are imposed on judges holding office under Article III of the Constitution." 145 F.3d at 1367–68, quoting In re Espy, 80 F.3d 501, 507 (D.C. Cir. 1996). Thus, the Espy Court was addressing the scope of its own authority, granted by statute, to refer a matter to a Special Prosecutor, ......
  • U.S. v. Espy, Criminal Action No. 97-0335 (RMU).
    • United States
    • U.S. District Court — District of Columbia
    • 23 Diciembre 1997
    ...in any way to the acceptance of gifts by him from organizations or individuals with business pending before the Department of Agriculture. In re Espy, Special Div. No. 94-2 (D.C.Cir.Sp.Div. Sept. 9, 1994). On August 27, 1997, a grand jury indicted the defendant on 39 counts alleging unlawfu......
  • Mineral Policy Center v. Norton, Civil Action 01-00073 (HHK) (D. D.C. 11/18/2003)
    • United States
    • U.S. District Court — District of Columbia
    • 18 Noviembre 2003
    ...v. Wallace, 112 F.2d 192, 198 n. 15 (D.C. Cir. 1940)), or "the context dictates otherwise," Reiter, 442 U.S. at 339. See In re Espy, 80 F.3d 501, 505 (D.C. Cir. 1996) ("[A] statute written in the disjunctive is generally construed as `setting out separate and distinct alternatives.'") (quot......
  • Mineral Policy Center v. Norton
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • 18 Noviembre 2003
    ...112 F.2d 192, 198 n. 15 (D.C.Cir. 1940)), or "the context dictates otherwise," Reiter, 442 U.S. at 339, 99 S.Ct. 2326. See In re Espy, 80 F.3d 501, 505 (D.C.Cir. 1996) ("[A] statute written in the disjunctive is generally construed as `setting out separate and distinct alternatives.'") (quo......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT