U.S. v. Coleman
| Decision Date | 03 November 1986 |
| Docket Number | No. 86-5346,86-5346 |
| Citation | 805 F.2d 474 |
| Parties | UNITED STATES of America v. Anderson J. COLEMAN, Appellant. . Submitted Under Third Circuit Rule 12(6) |
| Court | U.S. Court of Appeals — Third Circuit |
William C. Carpenter, Jr., U.S. Atty., Richard G. Andrews, Asst. U.S. Atty., Wilmington, Del., for appellee.
Victor F. Battaglia, Robert D. Goldberg, Biggs & Battaglia, Wilmington, Del., for appellant.
Before SLOVITER and STAPLETON, Circuit Judges, and GREEN, District Judge *.
This case raises, apparently for the first time, an issue concerning the scope of conduct prohibited by the Ethics in Government Act.
Appellant Anderson J. Coleman appeals from a jury verdict finding him guilty of three counts of violation of a provision of the Ethics in Government Act, 18 U.S.C. Sec. 207(b)(i); two counts of knowingly making false declarations to the grand jury in violation of 18 U.S.C. Sec. 1623; three counts of obstructing justice in violation of 18 U.S.C. Sec. 1503 by lying to the grand jury and by instructing a witness not to tell the grand jury about certain transactions; and one count of illegal conversion to his own use of funds given him as payment for federal income tax in violation of 18 U.S.C. Sec. 654. Coleman was sentenced to two years imprisonment on the perjury and obstruction of justice counts, eighteen months imprisonment on the conversion count, and probation on the other counts. All sentences were to run concurrently.
Coleman was a Revenue Officer for the Internal Revenue Service for more than 23 years before he retired on January 3, 1985. During his service, Coleman attained the highest possible grade for his position, GS-12, and was, at the time of his retirement, the most experienced non-supervisory Revenue Officer working in the Dover, Delaware IRS office. Upon retirement, he established a tax and financial consulting service.
It is undisputed that within one year of his retirement Coleman attended meetings between IRS officer Gloria Dendy, to whom some of his cases had been transferred, and each of three taxpayers, Stephen Patmiou, Louis Ianire, and Philip Jackson, whose tax collection had been Coleman's personal responsibility immediately prior to his retirement. These three meetings formed the basis of the three counts alleging violation of the Ethics in Government Act.
Provisions of the Ethics in Government Act of 1978, 18 U.S.C. Sec. 207, place certain restrictions on post-employment activity of federal officials and employees. The statute distinguishes between matters in which the former government official or employee participated "personally and substantially" and matters for which the official had "official responsibility." Section 207(a) establishes a lifetime bar against certain activities, i.e. formal or informal appearance or communications with the intent to influence, by former government officials or employees concerning matters in which the official participated personally and substantially while in office. In contrast, section 207(b) establishes only a two year ban for the conduct it covers.
Section 207(b)(ii), which is to some extent duplicative of section 207(a), applies to former top-level employees, as defined elsewhere in the statute, and penalizes one who, with respect to matters in which s/he "participated personally and substantially as an officer or employee" "knowingly represents or aids, counsels, advises, consults, or assists in representing any other person (except the United States) by personal presence at any formal or informal appearance." 18 U.S.C. Sec. 207(b)(ii).
Coleman was not charged under either section 207(a) or 207(b)(ii). He was charged under section 207(b)(i) which makes it a crime when a federal employee, within two years after his or her employment has ceased, "knowingly acts as agent or attorney for, or otherwise represents" any other person in any formal or informal appearance before any department, agency, or court of the United States or any officer or employee thereof on any matter for which the former employee had "official The district court instructed the jury that conviction of Coleman under section 207(b)(i) required the government to establish five elements: (1) that Coleman had been an IRS officer; (2) that within two years after his retirement, Coleman had "knowingly acted as agent or otherwise represented a person at an informal appearance" before an IRS officer; (3) that such representation was in connection with a proceeding or matter involving a party in which the United States had a direct and substantial interest; (4) that Coleman had had official responsibility for the matter within one year of his retirement; and (5) that Coleman's representation was knowingly done. Coleman does not argue that the district court erred in specifying the elements of the offense. Instead he argues that the district court erred as a matter of law in instructing the jury with respect to the definition of "represent."
responsibility" during the year prior to leaving government employment. 1
Coleman had proffered to the district court the following definition of "represent": "To represent a person is to stand in his place; to supply his place; to act as his substitute." App. at 78. Coleman's definition was taken from the Black's Law Dictionary definition of "represent." He omitted to include in his proffered charge the remainder of that definition, i.e. "to speak or act with authority on behalf of such person." Black's Law Dictionary 1169 (5th ed. 1979).
The district court rejected Coleman's definition as unduly restrictive, App. at 388, and instructed the jury:
To "act as agent or otherwise represent" includes appearing on behalf or in the interest of a taxpayer, either with or without the taxpayer being present, at a formal or informal meeting with the Internal Revenue Service or an officer thereof.
Coleman argues that this instruction is erroneous. He contends that section 207 was intended to apply only "to prevent certain federal employees from using information gained during the course of their We need not decide if Coleman's actions constitute "professional advocacy" if the statutory term "or otherwise represents" is not limited to "professional advocacy," however defined. Nothing in either the statutory language or the legislative history suggests such a limitation.
employment to aid and assist specific persons whose cases they have worked on." Appellant's Brief at 16-17. In addition, he argues that because section 207(b)(i) forbids "representation," rather than "appearance," Congress did not intend to prohibit a former IRS from merely attending a meeting. Hence, Coleman contends, we must construe the section as prohibiting only "professional advocacy" at such meetings and not mere attendance. Coleman argues further that his presence at the three meetings before IRS officer Dendy, where he made no comment at all in one and only a brief comment and suggestion in the other two, did not constitute "professional advocacy" which could serve as a basis for a finding of representation. 2
Before its 1978 amendment, section 207(b) prevented former government employees, for a period of one year after leaving government employment, from appearing personally before a court, department or agency "as agent or attorney for, anyone other than the United States" in connection with specific matters which were within their "official responsibility" within one year before their exit from public service. 18 U.S.C. Sec. 207(b) (West 1969). Despite the statute, Congress found that "public confidence in government has been weakened by a widespread conviction that federal officials use public office for personal gain, particularly after they leave government service." The Senate termed such action "repulsive to universally held principles of public service." S.Rep. No. 170, 95th Cong., 2d Sess. 32, reprinted in 1978 U.S.Code Cong. & Ad.News 4216, 4248. It noted that "[t]here is a deep public uneasiness with officials who switch sides--who become advocates and advisors to the outside interests they previously supervised as government employees." Id.
Congress made stringent revisions to section 207 in order "to avoid even the appearance of public office being used for personal or private gain." Id. (emphasis in original). The Senate Report makes clear that Congress not only sought to prevent former government officials from using information gained during public service, as Coleman suggests, but also sought to prevent use of "influence[ ] and access acquired during government service at public expense, for improper and unfair advantage in subsequent dealings with that department or agency." Id. at 32-33, 1978 U.S.Code Cong. & Ad.News at 4249. At the same time, Congress recognized the need not to impose overly stringent requirements in order to balance "the government's objective in attracting experienced and qualified persons to public service." Id. at 32, 1978 U.S.Code Cong. & Ad.News at 4248. The conflict of interest standards in amended section 207 must be interpreted with these congressional goals in mind.
The 1978 amendments made two significant changes in section 207 of note here. One extended the time period of the ban on post-service activity under section 207(b) from one to two years. The other extended the activity prohibited under sections 207(a), (b), and (c) 3 to encompass not only one who acts as agent or attorney but also one who "otherwise represents" a party (other than the United States), either in any formal or informal United States proceeding or, except for section 207(b)(ii), by way of any communication made with intent to influence. 18 U.S.C. Sec. 207. The Senate In summary, we are convinced that Title V presents a comprehensive and satisfactory policy governing post-service activities....
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