U.S. v. Conlon, 79-2283

Decision Date16 April 1980
Docket NumberNo. 79-2283,79-2283
Citation628 F.2d 150,202 U.S. App. D.C. 150
Parties, 27 Cont.Cas.Fed. (CCH) 80,356 UNITED STATES of America, Appellant, v. James A. CONLON.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court for the District of Columbia (D.C. Criminal No. 79-380).

G. Allen Carver, Jr., Atty., Dept. of Justice, Washington, D.C., with whom Robert S. Tignor, Atty., Dept. of Justice, Washington, D.C., was on brief, for appellant.

Plato Cacheris, Alexandria, Va., with whom Larry S. Gondelman, Washington, D.C., was on brief, for appellee.

Before WRIGHT, Chief Judge, BAZELON, Senior Circuit Judge, and WILKEY, Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge BAZELON.

BAZELON, Senior Circuit Judge:

James A. Conlon was charged in a four count indictment with three counts of false declaration before the grand jury 1 and one count of conflict of interest. 2 The district court dismissed all four counts. The government appealed. We affirm the dismissal of the false declaration counts, adopting the opinion of the court below insofar as it deals with them. 3 However, we reject the district court's analysis of 18 U.S.C. § 208(a), 4 and reverse the dismissal of the conflict of interest count. Our discussion will be confined to that count.

I. FACTS

Until July 1, 1977, appellee Conlon was the Director of the Bureau of Engraving and Printing. From that date, he has been the President of ABN Development Corporation, a subsidiary of the American Bank Note Company (ABN). Beginning in December, 1976, the Bureau of Engraving and Printing and the Federal Reserve Board were entertaining the possibility of substituting a security signature system for United States currency developed by the American Bank Note Company for a similar system which they had been developing themselves. The government contends that, from December 1976 through June 1977, Conlon participated substantially in the decisionmaking process regarding this proposed replacement system. It further contends that, during the same period, he was negotiating and had an arrangement concerning prospective employment with the American Bank Note Company. Based upon these contentions, the government sought and obtained a grand jury indictment charging Conlon with a violation of 18 U.S.C. § 208(a), 5 the conflict of interest law. The indictment read:

In the period from on or about December 1976 through June 1977, in the District of Columbia, JAMES A. CONLON, the Defendant, being an officer and employee of the executive branch of the United States Government, that is, the Director of the United States Bureau of Engraving and Printing, unlawfully and knowingly did participate personally and substantially as such officer and employee, through decision, recommendation, and the rendering of advice, in a proposal of the American Bank Note Company for a Security Signature System for U.S. Currency, a particular matter in which to his knowledge the American Bank Note Company, a company with which he was negotiating and had an arrangement concerning prospective employment, had a financial interest. 6

The trial judge denied Conlon's motion to dismiss the indictment, 7 and granted his motion for a bill of particulars. 8 In that bill, Conlon sought the following information regarding the conflict of interest charge: 9

(1) Whether the government was alleging that he had made a recommendation. If so, the date, content and form (written or oral) of the recommendation.

(2) Whether the government was alleging that he had rendered advice. If so, the date, content and form (written or oral) of the recommendation.

(3) Whether the government was alleging that he had made a decision. If so, the date, content and form (written or oral) of the decision.

(4) The date or dates upon which the government was contending that he had negotiated with ABN, including where and with whom the negotiations took place and the substance of the negotiations.

(5) The date or dates upon which the government was contending that he had an arrangement concerning prospective employment with ABN, including whether the arrangement was written or oral, whether a date for the prospective employment had been set, and with whom and where such arrangements were made.

The government responded in detail to the first three inquiries. It listed seven dates December 7, 1976; December 22, 1976; April 21, 1977; May 10, 1977; May 17, 1977; June 21, 1977; and June 24, 1977 on which Conlon allegedly made recommendations and rendered advice concerning ABN's proposal. It listed four dates December 7, 1976; April 21, 1977; May 10, 1977; and June 24, 1977 on which he allegedly made a decision affecting the proposal. It set forth the content of the putative recommendations, advice, or decisions. And, in several instances, it attached letters signed by Conlon which allegedly contained a recommendation, advice, or a decision.

The government's response to the fourth and fifth inquiries was more scanty. In response to the inquiry regarding negotiations, it said:

The Government alleges that the defendant was negotiating with ABN on December 7, 1976; December 22, 1976; April 21, 1977; May 10, 1977; May 17, 1977; June 21, 1977; and June 24, 1977. We do not know when or with whom such negotiations were begun. The defendant has admitted discussing employment with Edward Wietzen on or about June 10, 1977, and soon thereafter agreed to work for ABN. 10

Its response to the inquiry regarding arrangements was essentially the same:

The Government alleges that the defendant had an arrangement for employment with ABN on December 7, 1976; December 26, 1976; April 21, 1977; May 10, 1977; May 17, 1977; June 21, 1977; and June 24, 1977. We do not know where or with whom the arrangement was made nor do we know when it began, whether it was written or oral, or whether a date for employment had been arranged. The defendant has admitted discussing employment with Edward Weitzen on or about June 10, 1977 and soon thereafter agreed to work for ABN. 11

After receiving the government's bill of particulars, Conlon renewed his motion to dismiss the conflict of interest count, 12 arguing that the government had not properly alleged the existence of negotiations or arrangements. 13 At oral argument on the motion, the government offered some of the evidence it expected to present at trial to prove the existence of negotiations or arrangements. The essence of this evidence was (1) that in November, 1976, Conlon had met with a real estate broker (and later with an office space planner) regarding office space for ABN, and (2) that, in the course of those meetings, he had stated that he was going to be joining ABN and that the offices were going to be his. 14 The government noted that this issue had been discussed extensively with Conlon before the grand jury. 15 It argued that, therefore, he was on notice as to the substance of the negotiations and arrangements charged. After considering the submissions of the parties, the trial judge granted Conlon's renewed motion to dismiss the conflict of interest count.

In granting the motion, the district court held that a narrow construction of the terms "arrangement" and "negotiating" was necessary to save 18 U.S.C. § 208(a) from being unconstitutionally vague. On this basis, the court construed the statute to require the indictment to allege specific acts of negotiating by the defendant, or specific bilateral arrangements or acts of arranging. It then held that the indictment in the instant case failed to meet that standard. 16 This appeal followed.

II. ANALYSIS

(A) The Construction of 18 U.S.C. § 208(a) : The district court felt constrained to read 18 U.S.C. § 208(a) narrowly in order to save it from being unconstitutionally vague. It purported to do so with the following language:

The Court finds such a narrowing construction is available for section 208(a) by construing "negotiating" to require allegations of specific acts of negotiating by the defendant in concert with the prospective employer; and by construing "arrangement" to require allegations of specific bilateral arrangements or acts of arranging. 17

We find that it is not necessary to require the pleading of "specific acts of negotiating" or "specific bilateral arrangements or acts of arranging" in order to save § 208(a) from vagueness. In the context before us, the terms "negotiating" and "arrangement" are not exotic or abstruse words, requiring detailed etymological study or judicial analysis. They are common words of universal usage. 18 People of ordinary intelligence would have fair notice of the conduct proscribed by the statute. That there may be marginal cases is not sufficient reason to hold that a statute is too ambiguous to define a criminal offense. 19

Thus, the narrowing construction imposed by the district court was not constitutionally required. Moreover, a narrow construction does not comport with the legislative history. The words of the statute must be read so as to effectuate the legislative purpose. This will often mean giving the words a broad, rather than a narrow, reading. As the Supreme Court put it over a century ago:

The object in construing penal, as well as other statutes, is to ascertain the legislative intent. . . . The rule of strict construction is not violated by permitting the words of the statute to have their full meaning, or the more extended of two meanings, as the wider popular instead of the more narrow technical one; but the words should be taken in such sense, bent neither one way or the other, as will best manifest the legislative intent. 20

Section 208(a) was enacted in 1962 as part of a general revision of the bribery and conflict of interest laws. 21 That revision was prompted by "a growing concern, both in and out of Congress, with the ever present and perplexing problems of how best to assure high...

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