Nofziger, In re
| Citation | 925 F.2d 428 |
| Decision Date | 05 February 1991 |
| Docket Number | No. 87-1,87-1 |
| Parties | , 59 USLW 2490 In re Franklyn C. NOFZIGER. Div. . (Division for the Purpose of Appointing Independent Counsel Ethics in Government Act of 1978, as Amended) |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Robert Plotkin, E. Lawrence Barcella, Jr., and Sandra Wilkinson, Laxalt, Washington, Perito & Dubuc, Washington, D.C., were on the Application for Attorneys' Fees for Petitioner.
Stuart M. Gerson, Asst. Atty. Gen., Patricia M. Bryan, Deputy Asst. Atty. Gen., Michael Jay Singer and Thomas M. Bondy, Attys., Dept. of Justice, filed Comments to Application for Attorneys' Fees.
James C. McKay, Washington, D.C., Independent Counsel, filed a Memorandum on the Application for Attorneys' Fees.
E. Lawrence Barcella, Jr., Robert Plotkin and Sandra Wilkinson, Attys., Washington, Perito & Dubuc, Washington, D.C., were on the Reply to Dept. of Justice Comments on Application for Attorneys' Fees for petitioner.
Before MacKINNON, Presiding, BUTZNER and PELL, Senior Circuit Judges.
Franklyn C. Nofziger, former Assistant to the President for Political Affairs, was the subject of an investigation and prosecution by Independent Counsel James C. McKay in accordance with 28 U.S.C. Sec. 591 et seq. He was indicted and convicted on three counts alleging violations of 18 U.S.C. Sec. 207(c). However, upon appeal the indictment was held to be invalid and the convictions were reversed. Nofziger now petitions the court to rule that he is entitled to be reimbursed for his attorneys' fees notwithstanding that the statute limits the award of fees to cases in which "no indictment is brought against such individual." 28 U.S.C. Sec. 593(f)(1). We hold that the reversal of the convictions obviated the "no indictment" requirement. Nonetheless, the Petition for an award of attorneys' fees is denied because of the absence of any showing that the fees "would not have been incurred but for the requirements of [the Act]."
On November 7, 1986, the Department of Justice received "credible" information from the United States Attorney in the Southern District of New York investigating Wedtech Corporation, Welbilt Electronic Die Corporation ("Welbilt") 1 and associated matters, that Franklyn C. Nofziger, Assistant to the President for Political Affairs from January 21, 1981 through January 22, 1982, might have engaged in illegal lobbying communications on behalf of Welbilt and Comet Rice, Inc. within the prohibited one-year period shortly after leaving the White House on January 22, 1982 to establish Nofziger and Bragg Communications as a political consulting firm. 2
Starting with the credible information thus received, the Acting Attorney General subsequently determined that reasonable grounds existed to warrant further investigation into whether Nofziger had on two occasions communicated on behalf of Welbilt and Comet Rice to former colleagues at the White House in violation of 18 U.S.C. Sec. 207(c). The applicable statute then provided:
(c) Whoever, other than a special Government employee who serves for less than sixty days in a given calendar year, having been so employed as specified in subsection (d) of this section, within one year after such employment has ceased, knowingly acts as agent or attorney for, or otherwise represents, anyone other than the United States in any formal or informal appearance before, or, with the intent to influence, makes any oral or written communication on behalf of anyone other than the United States, to--
(1) the department or agency in which he served as an officer or em
ployee,, or any officer or employee thereof, and
(2) in connection with any judicial, rulemaking, or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest, or other particular matter, and
(3) which is pending before such department or agency or in which such department or agency has a direct and substantial interest--
shall be fined not more than $10,000 or imprisoned for not more than two years, or both. 3
18 U.S.C. Sec. 207(c) (emphasis added).
Following the preliminary investigation required by 28 U.S.C. Sec. 591(a) and (b) and authorized by Sec. 591(c), the Acting Attorney General determined within 60 days 4 of the receipt of such information that there were "reasonable grounds to believe that further investigation [of Nofziger was] warranted." Accordingly on January 6, 1987, in compliance with 28 U.S.C. Sec. 592(c)(1), 5 he applied to the Special Division for the appointment of an independent counsel.
On February 2, 1987, the Special Division appointed James C. McKay as Independent Counsel and defined his jurisdiction, inter alia, "to investigate to the maximum extent authorized by Title 28 U.S.C. Sec. 594, whether ... Franklyn C. Nofziger [violated 18 U.S.C. Sec. 207(c) 6 by his lobbying (communication) activities within], a period of one year following his resignation from federal service...." 7
Thereafter the investigation proceeded at normal pace 8 and on July 16, 1987 Nofziger was indicted on four counts alleging violations of Sec. 207(c) in making prohibited oral and written communications to the White House and the Department of Defense "with the intent to influence" them in particular matters in which such agencies then had a "direct and substantial interest," 9 and two counts alleging violations of 18 U.S.C. Sec. 207(a) in making two oral communications on behalf of Welbilt to the Department of Defense and the Small Business Administration with regard to Welbilt matters in which he had "participated personally and substantially" while Assistant to the President. 10
Prior to trial, Independent Counsel McKay voluntarily dismissed the charges in the two subsection (a) counts. According to his Final Report, this was done to avoid jury confusion. Independent Counsel believed that "the sentencing determination probably would not in any way be affected by the absence of any section 207(a) convictions involving the same client and subject matter as two of the other 207(c) counts." Report of Independent Counsel at 18-19, In re Nofziger (Div. No. 87-1) ("Final Report "). The dismissal of of the subsection (a) counts was authorized by applicable prosecution policy. Department of Justice, Principles of Federal Prosecution Sec. 3(g) (1980). The dismissals left Nofziger indicted only for the four 207(c) offenses.
Trial began on January 11, 1988 and on February 11 the jury found Nofziger guilty on three of the four 207(c) counts. 11 (Tr. 4-5). Nofziger immediately appealed.
A. The Appeal.
The scope of the word "knowingly" in section 207(c), supra at 430-431, had been an issue at pretrial and at trial. Independent Counsel interpreted section 207(c) as establishing
two separate, but parallel, offenses: (1) an "appearance [representational] offense," which requires the defendant to have "knowingly " acted as representative of someone other than the United States in an appearance before his former agency; and (2) a [separate] "communication offense," which requires only that the defendant have made a communication "with the intent to influence " his former agency
in any particular matter pending before such agency or in which such department or agency has a direct and substantial interest. Final Report at 19 (emphasis added). The indictment only charged communication offenses in concurrence with the above interpretation. Prior to trial the court upheld the indicted counts based on such interpretation of the statute. United States v. Nofziger, Cr. No. 87-0309 (D.D.C. filed Nov. 10, 1987) (mem. op.).
On appeal, as at the trial level, the Independent Counsel argued in support of the District Court's interpretation that "knowingly" applied only to "appearance offense[s]." No appearance offenses were charged. Nofziger, however, continued to contend that the requirement of acting "knowingly" extended beyond the disjunctive "or," that separated the "appearance" and "communication" offenses, and modified the entire sentence including the "communication offense." According to Nofziger's construction, section 207(c) required the government to prove that his state of mind in committing the communication offenses included two elements of intent, i.e., that he acted with "knowledge " of the circumstances that made the communication offenses unlawful (that the White House had a direct and substantial interest in the particular matter), and that "with the intent to influence" he made a "written communication to such department or agency."
The Court of Appeals decision adopted Nofziger's proposed construction, one judge dissenting, and reversed his convictions. United States v. Nofziger, 878 F.2d 442 (D.C.Cir.1989) (en banc denied). In so ruling, the court's decision stated:
Because of subsection 207(c)'s ambiguity, time-honored rules of statutory construction dictate that we interpret the subsection as requiring the government to demonstrate knowledge of the facts that made his conduct criminal. The district court should have dismissed the indictment filed by the prosecution because it [the indictment] failed to impose this burden on the government.
Id. at 454 (emphasis added).
Nofziger presently argues that the statement italicized above supports his present contention that the reversal of his convictions operates to entitle him to an award of his attorneys' fees and "that the indictment should never have been brought...." Application for Attorneys' Fees at 8, In re Nofziger (D.C.Cir., Div. No. 87-1, Feb. 15, 1990) [herein Petition ]. In addition, argu ing that In re Donovan, 877 F.2d 982 (D.C.Cir.1989) "is controlling," Nofziger argues that his attorneys' fees were incurred under circumstances that comply with the necessary "but for" requirement of section 593(f)(1).
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