U.S. v. Espy

• Decision Date: 16 June 1998
• Docket Number: No. 98-3001,98-3001
• Citation: 145 F.3d 1369
• Parties: UNITED STATES of America, Appellant, v. Alphonso Michael ESPY, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1369

145 F.3d 1369

330 U.S.App.D.C. 299

UNITED STATES of America, Appellant, v. Alphonso Michael ESPY, Appellee.

No. 98-3001.

United States Court of Appeals, District of Columbia Circuit.

Argued March 25, 1998.

Decided June 16, 1998.

Appeal from the United States District Court for the District of Columbia (97cr00335-01).

Charles M. Kagay, Chief Appellate Counsel, argued the cause for appellant, with whom Donald C. Smaltz, Independent Counsel, Theodore S. Greenberg, Deputy Independent Counsel, and Joseph P. Guichet, Associate Independent Counsel, were on the briefs.

Charles J. Ogletree, Jr. argued the cause for appellee, with whom Reid H. Weingarten, Erik L. Kitchen, and Theodore V. Wells, Jr. were on the brief. Rhonda M. Rivens entered an appearance.

Before: SILBERMAN and WILLIAMS, Circuit Judges, and BUCKLEY, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge SILBERMAN.

Concurring opinion filed by Senior Circuit Judge BUCKLEY.

SILBERMAN, Circuit Judge:

This case arises from an independent counsel investigation into charges that former Secretary of Agriculture Alphonso Michael Espy accepted illegal gratuities while in office, used public funds for his personal benefit, and lied to cover up his wrongdoing. A grand jury returned a 39-count indictment, but the district court granted Espy's motions to dismiss Counts 26-28, brought under the Meat Inspection Act, and Count 39, brought under the False Statement Statute. The government immediately appealed. We affirm the district court with respect to Count 39, but reverse with respect to Counts 26-28.

I.

Counts 26-28 alleged that Espy accepted approximately $4,221.00 in gifts from Tyson's Foods and Quaker Oats, corporations subject to the Meat Inspection Act. The Act forbids "any inspector, deputy inspector, chief inspector, or other officer or employee of the United States authorized to perform any of the duties prescribed by this subchapter" to accept gratuities. 21 U.S.C. § 622 (1994) (emphasis added). The district court, agreeing with appellee, concluded that the statute is ambiguous as to whether it includes the Secretary of Agriculture and, relying on several canons of construction, determined that the Secretary was not covered. ¹ Before us, appellee particularly emphasizes ejusdem generis and the avoidance of constitutional questions. Where a general term follows a list of specific terms, the rule of ejusdem generis limits the general term as referring only to items of the same category. Accordingly, both appellee and the district court have interpreted "other officer" to mean only those who actually inspect meat. As for the avoidance canon, see Association of American Physicians and Surgeons v. Clinton, 997 F.2d 898, 906-11 (D.C.Cir.1993), § 622 provides that a person convicted under that section will be "summarily discharged from office and shall be punished by a fine not less than $1,000 nor more than $10,000 and by imprisonment [for] not less than one year nor more than three years." Although Espy is not subject to removal because he is no longer Secretary of Agriculture, he somewhat imaginatively argues that if he were still Secretary, the removal provision could not be applied constitutionally to him. Congress would not have intended an unconstitutional result, therefore he claims that the Secretary must not be among the "other officers" to whom the statute refers.

But before either ejusdem generis or the avoidance canon applies, there must be ambiguity in the statute--and we see none. The Secretary is certainly an "other officer authorized to perform ... duties prescribed by this subchapter." To name a few: "the Secretary shall cause to be made by inspectors appointed for that purpose a postmortem examination and inspection of the carcasses and parts thereof of all cattle" 21 U.S.C. § 604 (1994); "the Secretary shall cause to be made a careful inspection of all cattle ... intended and offered for export to foreign countries" 21 U.S.C. § 612 (1994); "the Secretary shall submit to [designated congressional committees] a comprehensive and detailed written report" 21 U.S.C. § 620(e) (1994); and the "Secretary shall, from time to time, make such rules and regulations as are necessary for the efficient execution of the provisions of this subchapter" 21 U.S.C. § 621 (1994). The Act was passed in response to Upton Sinclair's famous book THE JUNGLE, see United States v. Seuss, 474 F.2d 385, 388 (1st Cir.1973), and seeks to ensure safe meat products. Espy may well be correct in saying that the paradigm in Congress' mind was a corrupt meat inspector engaged in the actual examination of slaughterhouses; but a corrupt Secretary, who supervises all Agriculture Department employees, obviously could cause an even greater deleterious effect on meat. See Brogan v. United States 522 U.S. 398, ----, 118 S.Ct. 805, 809, 139 L.Ed.2d 830 (1998) ("[I]t is not, and cannot be, our practice to restrict the unqualified language of a statute to the particular evil that Congress was trying to remedy."). Nor are we impressed by appellee's observation that the Secretary's duties under the subchapter are not specifically referred to as "duties," in contrast to the meat inspector's tasks, which are identified in § 621 as inspecting carcasses and "other duties." We think that distinction trivial. All of appellee's attempts to restrict the word "duty" to hands-on "meat inspection" are really quite labored. The Act charges the Secretary with a host of tasks that fit comfortably within the definition of "duty," which is "something that one is expected or required to do by moral or legal obligation." THE RANDOM HOUSE COLLEGE DICTIONARY 411 (Revised Ed.1980). Although the Act never explicitly identifies these responsibilities as "duties," it gives no indication that the normal meaning of duty should not apply. ²

Since we do not find the statute in the least bit ambiguous, we have no need to employ, nor any legitimate purpose in employing, canons of construction designed to reconcile confusing language. Ejusdem generis only comes into play when the general term in the list is so broad that it creates ambiguity. Gooch v. United States, 297 U.S. 124, 128, 56 S.Ct. 395, 80 L.Ed. 522 (1936) accord United States v. Mescall, 215 U.S. 26 30 S.Ct. 19, 54 L.Ed. 77 (1909). For example, in Cole v. Burns International Security Services, 105 F.3d 1465 (D.C.Cir.1997), we applied the canon to a provision of the Federal Arbitration Act exempting "contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce." 9 U.S.C. § 1 (1994). There, the phrase "workers engaged in foreign or interstate commerce" was sweeping enough to include nearly every worker in the United States. Indeed, it was so broad that a literal interpretation would have rendered the preceding specific enumerations (seamen and railroad employees) mere surplusage. Here, by contrast, the general term "other officer or employee authorized to perform duties prescribed by this subchapter" has set its own limits--"duties prescribed by this subchapter"--so there is no need to limit it further.

For the same reason, we need not elaborate on appellee's constitutional argument. See Almendarez-Torres v. United States, --- U.S. ----, ----, 118 S.Ct. 1219, 1228, 140 L.Ed.2d 350 (1998) ("[for the avoidance canon to apply], the statute must be genuinely susceptible to two constructions ...."); see also Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. and Constr. Trades Council, 485 U.S. 568, 575, 108 S.Ct. 1392, 99 L.Ed.2d 645 (1988). It would not be uncalled for, however, to observe that we think his constitutional argument is considerably overdone. ³ This removal provision is not the same as the one held unconstitutional in Bowsher v. Synar, 478 U.S. 714, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986). There, Congress itself maintained control over removal. Here, Congress only disqualified someone convicted under the Meat Inspection Act from continued service in his or her government job. Although there are constitutional limits to the qualifications Congress can impose on presidential appointees, we have little doubt that Congress could legitimately restrict Agriculture Department officers to those not convicted under the Meat Inspection Act. See Myers v. United States, 272 U.S. 52, 128, 47 S.Ct. 21, 71 L.Ed. 160 (1926) ("We see no conflict between the [power to prescribe qualifications for office or to give reasonable classification for promotion] and that of appointment and removal, provided of course that the qualifications do not so limit selection and so trench upon executive choice as to be in effect legislative designation."). And it is doubtful that a restriction on continued service is any more constitutionally suspect than an initial appointment restriction. See Public Citizen v. Dep't of Justice, 491 U.S. 440, 484-85, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989) (Kennedy, J., concurring) (arguing that removal, an implicit power, warrants less protection than the appointment power, which is explicitly conferred by the Constitution). ⁴

II.

Count 39 of the Indictment alleges that when the President's Chief of Staff and Counsel questioned Espy about whether he had received gratuities, Espy responded "there's nothing else out there," although he knew that representation to be untrue. The False Statement Statute in effect at the time forbad false statements to be made "in any matter within the jurisdiction of any department or agency of the United States." 18 U.S.C. § 1001 (1994). ⁵ The district court held that the Executive Office of the President was not a "department" and dismissed the count. The independent counsel, urging reversal, argues that the statute uses the word department to refer to the whole executive branch (as in "executive department") or, alternatively, that the Executive Office of the President should be regarded as an agency.

In...