U.S. v. Espy, Criminal Action No. 97-0335 (RMU).

Citation989 F.Supp. 17
Decision Date23 December 1997
Docket NumberCriminal Action No. 97-0335 (RMU).
PartiesUNITED STATES of America, v. Alphonso Michael ESPY, Defendant.
CourtUnited States District Courts. United States District Court (Columbia)

William Francis Fahey, Office of Independent Counsel, Alexandria, VA, for U.S.

Reid Henry Weingarten, Steptoe & Johnson, L.L.P., Washington, DC, Theodore V. Wells, Lowenstein, Sandler, Brochin, Kohl, Fisher & Boylan, Roseland, NJ, Charles J. Ogletree, Jr., Cambridge, MA, for Defendant.

OMNIBUS OPINION AND ORDER

URBINA, District Judge.

Upon consideration of the parties' submissions and the relevant law, the court rules on the 13 pending motions as follows:

                                                 Part A1
                I.     Motion to Dismiss Counts 1-7 and 9-12: Denied
                II.    Motion to Dismiss Counts 9-12: Denied
                III.   Motion to Dismiss Counts 13-25: Denied
                IV.    Motion to Dismiss Counts 14, 20, 23: Denied
                V.     Motion to Dismiss Counts 29-33: Denied
                                                 Part B
                VI.    Motion to Dismiss all Counts of the Indictment as Duplicitous: Denied.
                VII.   Motion to Dismiss the Indictment for Defects in the Institution of the Prosecution:
                         Denied.
                VIII.  Motion for a Bill of Particulars: Granted in Part; Denied in Part.
                IX.    Motion to Strike Surplusage: Granted in Part; Denied in Part.
                X.     Motion to Dismiss Count 35: Denied.
                                                Part C
                XI.    Motion to Dismiss Counts 26-28: Granted.
                XII.   Motion to Dismiss Count 39: Granted.
                

PART A

Independent counsel, appointed to investigate the defendant's alleged violations of federal criminal laws, brought various charges based on the defendant's acceptance of improper gifts from organizations or individuals regulated by the Department of Agriculture while he was Secretary of Agriculture. The indictment, in part, charges the defendant with several crimes related to alleged gratuities violations including: Gratuity to Public Official, 18 U.S.C. § 201(c)(1)(B), Mail and Wire Fraud, 18 U.S.C. §§ 1341, 1343, 1346, and the Travel Act, 18 U.S.C. § 1952. This matter comes before the court upon the defendant's motions to dismiss several counts of the indictment relating to the above-mentioned charges for failure to state an offense pursuant to Federal Rule of Criminal Procedure 12(b)(2). Upon consideration of the parties' submissions and the relevant law the court denies these motions.

Introduction
Procedural Background

On September 9, 1994, the Special Division of the Court of Appeals for the District of Columbia Circuit ordered the appointment of Donald C. Smaltz as Independent Counsel ("IC") to investigate whether the then-Secretary of Agriculture, Alphonso Michael Espy, had committed a violation of any criminal law, other than a Class B or C misdemeanor or infraction, relating in any way to the acceptance of gifts by him from organizations or individuals with business pending before the Department of Agriculture. In re Espy, Special Div. No. 94-2 (D.C.Cir.Sp.Div. Sept. 9, 1994). On August 27, 1997, a grand jury indicted the defendant on 39 counts alleging unlawful activities occurring during his tenure as Secretary of Agriculture.

Counts 1 through 7 of the indictment2 charge the defendant with Wire Fraud, 18 U.S.C. §§ 1343, 1346, based on activities arising from the defendant's alleged receipt of illegal gratuities from certain sources. Specifically, the indictment alleges in Counts 1 and 2 that the defendant effected telephone communications on May 4 and 12, 1993 between Washington, D.C., and Springdale, Arkansas, to accept an invitation to a weekend birthday party hosted by Tyson Foods, Inc. ("Tyson"); in Count 3 effected telephone communications on June 17, 1993 from Washington, D.C., to Chicago, Illinois, to solicit 1993 NBA Championship tickets from the Quaker Oats Company ("Quaker Oats"); in Count 4 sent facsimile communications on January 18, 1994 from Dallas, Texas, to Temple, Texas, and Washington, D.C., to report results of a meeting with a Department of Agriculture Inspector General in Dallas, Texas; in Count 5 received facsimile communications on January 27, 1994 from the President of Oglethorpe Power Company ("Oglethorpe") in Tucker, Georgia, confirming a meeting at Oglethorpe headquarters; in Count 6 effected telephone communications on January 27, 1994 in Washington, D.C., and Atlanta, Georgia, to request 1994 Super Bowl tickets from the Fernbank Museum ("Fernbank") and; in Count 7 received facsimile communications from the President of Oglethorpe in Tucker, Georgia, requesting that the defendant elevate to other government officials Oglethorpe's proposal to prepay REA bonds after the proposal was rejected by the administering federal bank.

Counts 8 through 12 of the indictment charge the defendant with Mail Fraud, 18 U.S.C. §§ 1341, 1346, based on (i) the defendant's scheme to obtain money and property by means of fraudulent pretenses and representations, and (ii) his reimbursement of certain sources to cover up earlier acceptance of illegal gratuities. Specifically, the indictment alleges the defendant in Count 8 mailed a $6,204 Purchase Order from Washington, D.C. to Ridgeland, Mississippi, on April 6, 1993 as payment for the lease of a 1993 Jeep Grand Cherokee; in Count 9 mailed a $68 check to Tyson from Washington, D.C., to Springdale, Arkansas, on March 18, 1994, as payment for the Dallas Cowboys — Green Bay Packers NFL Playoff game; in Count 10 mailed a $69 check to Tyson from Washington, D.C., to Little Rock, Arkansas, on June 2, 1994, as payment for his expenses at the Tyson's weekend birthday party; in Count 11 mailed a $90 check to Quaker Oats in Chicago, Illinois, on August 25, 1994 for tickets to the Chicago Bulls — Phoenix Suns NBA Play-off game and; in Count 12 mailed a $700 check to the Fernbank Museum in Atlanta, Georgia, on September 14, 1994 for tickets to the 1994 Super Bowl.

Counts 13 through 25 of the indictment charge the defendant with violating the gratuities provision, 18 U.S.C. § 201(c)(1)(B), of the Bribery Statute, 18 U.S.C. § 201, based on the defendant's receipt of things of value from certain sources. Specifically, the indictment alleges that the defendant received the following things of value: luggage on March 14, 1993 valued at $2427 (Count 13); $3200 cash to his girlfriend on May 13, 1993 (Count 14); tickets and limousine service on September 11 and 12 to the U.S. Open Tennis tournament valued at $4446 (Count 15); tickets valued at $222 on November 10, 1993 to a Washington Bullets — New York Knicks NBA game (Count 16); a Waterford crystal bowl on January 17, 1994 valued at $173 (Count 17); four tickets valued at $6000 on January 18, 1993 for seats at the Presidential Inaugural Dinner (Count 18); travel and lodging expenses valued at $2556 for a Russellville birthday party held between May 14-16, 1993 (Count 19); a $1200 check given to his girlfriend on January 4, 1994 (Count 20); travel and entertainment expenses valued at $2,087 for January 15-16, 1994 while attending a Dallas Cowboys — Green Bay Packers NFL Playoff game (Count 21); a January 30, 1994 Super Bowl Ticket valued at $2200 (Count 22); employment for his girlfriend from EOP Group, Inc. ("EOP") (Count 23); tickets valued at $90 on June 18, 1993 to a Chicago Bulls — Phoenix Suns NBA Championship game (Count 24) and; a 1994 Super Bowl tickets valued at $857 (Count 25).

Counts 26 through 28 of the indictment charge the defendant with violating the gratuities provision of the Meat Inspection Act, 21 U.S.C. § 622, based on the defendant's receipt of illegal gratuities. Specifically, the indictment alleges the following illegal gratuities in violation of 21 U.S.C. § 622: lodging entertainment, and airfare valued at $2044 for a trip to Russellville, Arkansas between May 15-16, 1993 (Count 26); expenses valued at $2087 for a weekend trip to Dallas, Texas to attend the Dallas Cowboys — Green Bay Packers NFL Playoff game on January 15-16, 1994 (Count 27) and; tickets valued at $90 on June 18, 1993 to a Chicago Bulls — Phoenix Suns NBA Championship game (Count 28).

Counts 29 through 33 of the indictment charge the defendant for violating the Travel Act, 18 U.S.C. § 1952, based on the defendant's unlawful activity under the gratuities statute, 18 U.S.C. § 201(c), when traveling in interstate commerce. Specifically, the indictment alleges in Count 29 that the defendant received lodging, entertainment, and airfare when traveling from Washington, D.C., to Russellville, Arkansas, in Count 30 Chicago Bulls — Phoenix Suns NBA Championship game tickets when traveling from Washington, D.C. to Chicago, Illinois; in Count 31 U.S. Open Tennis tickets and limousine service when traveling from Washington, D.C. to New York, New York; in Count 32 Dallas Cowboys — Green Bay Packers NFL Playoff tickets and limousine service and; in Count 33 Super Bowl tickets when traveling from Washington, D.C. to Atlanta, Georgia.

Count 34 of the indictment charges the defendant with violating 18 U.S.C. § 1001 by making false statements and representations to the United States Department of Agriculture ("USDA") Office of the Inspector General to conceal his unlawful receipt of things of values from certain sources. The defendant is alleged to have submitted to the USDA Inspector General Special Agents altered and false trip itineraries for official travel he undertook in May 1993 to January 1994 after the USDA began an investigation regarding potential violations of federal laws by the defendant.

Count 35 of the indictment charges the defendant with violating 18 U.S.C. §§ 1512(b)(2)(A) and (B); and 1512(b)(3) by tampering with witnesses who were employees of the USDA. The defendant is alleged to have engaged in misleading conduct towards these employees with the intent to withhold records from the USDA Inspector General's investigation, cause objects to be impaired for use in official proceedings, and...

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    • American Criminal Law Review No. 58-3, July 2021
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