U.S. v. Schaltenbrand
| Decision Date | 13 May 1991 |
| Docket Number | No. 90-8228,90-8228 |
| Citation | 930 F.2d 1554 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Eugene Donald SCHALTENBRAND, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Deryl D. Dantzler, Macon, Ga., for defendant-appellant.
Miriam Wansley Duke, Asst. U.S. Atty., Macon, Ga., for plaintiff-appellee.
Appeal from the United States District Court for the Middle District of Georgia.
ON PETITION FOR REHEARING
Before TJOFLAT, Chief Judge, KRAVITCH, Circuit Judge, and GODBOLD, Senior Circuit Judge.
Appellant's petition for rehearing is granted. The opinion entered February 7, 1991 is vacated. The following opinion is entered in lieu thereof: 1
INTRODUCTION
Defendant-Appellant Colonel Eugene Schaltenbrand appeals his conviction of two violations of the government employee conflict of interest statutes. Specifically, he was convicted under 18 U.S.C. Sec. 208(a), which prohibits government employees from working on projects in which they have a financial interest, and 18 U.S.C. Sec. 207(a), which prohibits former government employees from representing private parties before the government on matters in which they previously worked for the government. We affirm the section 208(a) conviction and reverse the section 207(a) conviction.
In early 1987, the United States Air Force was engaged in a program to sell certain C-130 aircraft to friendly countries. These aircraft were being phased out of the American fleet because they were no longer cost effective to keep as a means of primary defense. One aspect of the program was to develop a system of maintenance and support for the aircraft through a private defense contractor.
Colonel Carl McPherson served as the System Program Manager of the project. To assist him on the project, McPherson requested the activation of Schaltenbrand, a reserve officer who was available at the time for extended service. From February 17, 1987 through May 1, 1987, Schaltenbrand was activated nine times for short periods of duty, usually lasting two to five days, with one period of sixteen days. Air Force records show that some of these periods were designated "active" duty, while some were designated "inactive" duty. During periods of inactive duty, Schaltenbrand was not paid, but was required to wear his uniform and received credit towards retirement.
In March 1987, Schaltenbrand was sent to Peru to do a site survey, the purpose being to determine the needs of that country so that the Air Force could better tailor a package of aircraft and support for it. While Schaltenbrand was in Peru, discussions between the Air Force and Mexico were progressing rapidly, and McPherson sent Schaltenbrand to Mexico to perform a site survey there also. Shortly after Schaltenbrand's return from Mexico, McPherson requested that Schaltenbrand be activated for a sixty-day period to work exclusively on the Air Force's deal with Mexico (the "Mexican Project"). McPherson made this request on March 25, 1987, but the sixty-day period did not actually begin until May 3, 1987. According to McPherson, Schaltenbrand was to be his "right-hand man" on the Mexican Project.
In early April 1987, Schaltenbrand attended a meeting concerning the Mexican Project. The purpose of the meeting was to discuss the Mexican site survey and to hear a proposal from Teledyne Brown Engineering ("TBE"), a private contractor that had been selected by the Mexican government as the likely provider of support for the aircraft being sold to Mexico.
At that time, TBE's contract for the project had not been finalized. Following the meeting, Schaltenbrand spoke with Harold Timmons, TBE's vice president and representative at the meeting. Schaltenbrand informed Timmons that he was interested in working for TBE after his duty with the Air Force ended. Schaltenbrand told Timmons that he thought he was well qualified to assist TBE with its potential contract for the Mexican Project, and Timmons suggested that Schaltenbrand fill out an application and send it to TBE's personnel department. He also mentioned that Schaltenbrand should discuss with the Air Force any potential conflicts of interest that might arise.
Schaltenbrand sent a resume to TBE's personnel department and also travelled to TBE's offices in Huntsville, Alabama to further discuss the possibility of employment. On the day of his visit to TBE, Schaltenbrand apparently was listed on Air Force records as on "inactive" duty. Schaltenbrand spoke with Timmons about his qualifications, and Timmons explained what TBE was looking for. TBE had done some advertising for the position and was seeking someone to lead TBE's Mexican team. In addition to flight experience, TBE wanted someone who could speak Spanish. Schaltenbrand told Timmons that he had thought about that, and that he would take a course in Spanish in order to be qualified. No salary discussions took place at that time.
Schaltenbrand's sixty-day period of duty ended on July 1, 1987, but he was activated for short periods on several occasions throughout August and September. Although the record is unclear as to the description of his duties during these later periods, it does not appear that he was significantly involved in the Mexican Project. On or about September 21, 1987, Schaltenbrand contacted TBE and informed it that he had another offer of employment, and therefore needed to know whether TBE was going to offer him a job. On September 21, TBE offered him the position that he had discussed with Timmons in April.
On September 24, Schaltenbrand went to the Office of the Staff Judge Advocate of the Air Force, seeking advice as to whether or not there were any conflict of interest rules that would prevent him from accepting a job with TBE. Upon his arrival at the office, he was handed Air Force Form 1175, "Legal Assistance Record" and told to fill out the section entitled "To be completed by client," which he did. The form contained the following statements:
PRIVILEGED INFORMATION--Information placed on this card is privileged. Neither the lawyer nor such paralegal assistants or clerical personnel as may assist in the case will disclose this information to anyone without the express consent of the client. Furthermore, disclosure may not be ordered by superior military authority.
After filling out the form, Schaltenbrand spoke to Judge Advocate General ("JAG") attorneys Michael Deep and Michael Shutter. Deep and Shutter explained that they were Deputy Counselors who represented the government. They gave Schaltenbrand various printed materials concerning the conflict of interest statutes and regulations and answered questions for him. The meeting lasted about an hour. When Schaltenbrand asked about specific situations, he was told that due to their status as representatives of the government, they could not answer such questions and he would have to retain his own counsel to discuss them. After this meeting, Schaltenbrand accepted TBE's offer on September 25 and began work on September 28.
In his new capacity as a TBE employee, Schaltenbrand attended a meeting at the Air Force base on November 4, 1987 concerning the Mexican Project. The meeting Schaltenbrand later was investigated for possible violations of the conflict of interest rules. During the investigation, JAG attorneys Deep and Shutter explained to government investigators the nature and the specifics of Schaltenbrand's meeting with them concerning his possible conflict of interest. Schaltenbrand had not consented to these disclosures. He subsequently was convicted.
was considered a "status conference." At this time, TBE still had not formalized its contract on the project. Dale Weaver was the TBE spokesperson at the meeting and requested that Schaltenbrand accompany him because Schaltenbrand would be responsible for implementing the plans discussed at the meeting. Aside from discussing some delivery schedules, there is no evidence that Schaltenbrand made any other contributions to the meeting
Schaltenbrand first challenges his conviction under 18 U.S.C. Sec. 208(a). That section provides:
[W]hoever, being an officer or employee of the executive branch of the United States Government, ... participates personally and substantially ... in a ... particular matter in which, to his knowledge, he, ... or any person or organization with whom he is negotiating or has any arrangement concerning prospective employment, has a financial interest ... [shall be guilty of a felony].
The parties do not dispute that Schaltenbrand was an officer of the executive branch or that he participated personally and substantially in the Mexican Project. Thus, the only issue with respect to section 208(a) is whether or not his conduct in obtaining his position with TBE amounted to "negotiation" under the statute. Unfortunately, this term is not defined in the statute.
This court recently addressed the definition of "negotiation" under section 208(a) and stated that United States v. Hedges, 912 F.2d 1397, 1403 (11th Cir.1990) (quoting United States v. Conlon, 628 F.2d 150, 154 (D.C.Cir.1980), cert. denied, 454 U.S. 1149, 102 S.Ct. 1015, 71 L.Ed.2d 304 (1982)).
Not surprisingly, Schaltenbrand urges a rather rigid definition of negotiation. He points to the language in Black's Law...
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