United States v. Conlon

Decision Date26 October 1979
Docket NumberCrim. No. 79-380.
Citation481 F. Supp. 654
PartiesUNITED STATES of America v. James A. CONLON.
CourtU.S. District Court — District of Columbia

COPYRIGHT MATERIAL OMITTED

G. Allen Carver, Jr., Robert S. Tignor, Public Integrity Section, Crim. Div., U.S. Dept. of Justice, Washington, D.C., for plaintiff.

Plato Cacheris, Washington, D.C., for defendant.

MEMORANDUM

OBERDORFER, District Judge.

I.

This Memorandum is filed in further explanation of the Court's Order of October 15, 1979, granting the renewed motion to dismiss Count I of the indictment against defendant, the former Director of the Bureau of Engraving and Printing. That indictment charged him with violating 18 U.S.C. § 208(a) (1976 and Supp. I 1977) by participating as a government officer in a proposal by the American Bank Note Company ("ABN") while he was "negotiating and had an arrangement concerning prospective employment" with ABN.1

Section 208(a) of Title 18, U.S.C. is the part of the bribery and conflict of interest laws that prohibits a federal employee from participating in official actions that affect a person or organization in which the employee has a financial interest. Section 208(a) provides in relevant part:

Except as permitted by subsection (b) hereof, whoever, being an officer or employee of the executive branch of the United States Government, or of any independent agency of the United States . . . participates personally and substantially as a Government officer or employee, through decision, approval, disapproval, recommendation, the rendering of advice, investigation, or otherwise, in a . . . contract . . . or other particular matter in which, to his knowledge . . . any person or organization with whom he is negotiating or has any arrangement concerning prospective employment, has a financial interest — Shall be fined not more than $10,000, or imprisoned not more than two years, or both.2

The indictment charging the defendant Conlon with violating section 208(a) alleges in its entirety that:

In the period from in 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.

On September 7, 1979, the defendant filed a motion to dismiss Count I, alleging that the indictment failed to state an offense and that as drafted, the indictment was so vague that it did not sufficiently apprise the defendant of the accusations against him. Simultaneously, pursuant to Rule 7(f), Fed.R.Crim.P., the defendant filed a motion for a Bill of Particulars asking, inter alia, that the Government:

6. State upon what date or dates the government contends that the defendant negotiated or was negotiating with ABN. State further where and with whom such negotiations took place and state the substance of these negotiations.
7. State upon what date or dates the defendant had an arrangement concerning prospective employment within ABN.

Motion for a Bill of Particulars, September 7, 1979, at 1.

The Government opposed the motion to dismiss on the ground that the indictment sufficiently charged an offense under the statute, and adequately informed the defendant of the nature of the accusations against him. See Government's Response in Opposition to Defendant's Motion to Dismiss the Indictment, September 19, 1979, at 1-5. The government opposed the request for particulars about the acts of negotiation because it "requests specification of what is clearly evidentiary material." It objected to giving particulars about the nature of the "arrangement" because to do so "would serve none of the objectives of a bill of particulars and would in effect compel disclosure of the Government's legal theory and evidence." Government's Response to Defendant's Motion for Bill of Particulars, September 19, 1979, at 2-3.

On September 28, 1979, after argument of the motions, the Court declined to dismiss Count I and granted, in greater part, the motion for a Bill of Particulars. In denying the motion to dismiss, the Court noted that "Defendant conceded at argument that . . . favorable action on his Motion for a Bill of Particulars would cure the defects at issue." Memorandum and Order, September 28, 1979, at 1.3 As a result of defendant's concession, the Court did not reach his claim that the indictment failed to state an offense. By accompanying Order, the Court granted the request for particulars 6 and 7, supra, because "they seek to identify only the nature and time of the essential acts of alleged participation as a government officer in contract negotiation with an organization with whom the defendant was allegedly negotiating for employment." Order, September 28, 1979.

The Government responded to the Order by filing a Bill of Particulars on October 4, 1979. In response to request 6, seeking particulars of the acts of negotiation, the Government reiterated its allegation:

that the defendant was negotiating with ABN on December 7, 1976; December 22, 1976; April 21, 1976; May 10, 1977; May 17, 1977; June 21, 1977 and June 24, 1977.

But the Bill of Particulars conceded that:

We do not know when, where or with whom such negotiations were begun. The defendant has admitted discussing employment with Edward Weitzen on or about June 10, 1977, and soon thereafter agreed to work for ABN.

Bill of Particulars at 4 (emphasis added). In response to request 7, seeking particulars of the alleged arrangement for employment, the Government responded again:

The Government alleges that the defendant had an arrangement for employment 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.

But with respect to the arrangement, the Government conceded that:

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.

Bill of Particulars, at 4 (emphasis added).4

On October 2, 1979, pursuant to the Court's pretrial direction, the Government filed its proposed jury instructions, which include instructions construing the terms "negotiating" and "arrangement." The proposed instructions would have directed the jury that:

The term "arrangement concerning prospective employment" means a plan or agreement with respect to future employment.5
The term "negotiating" means submitting and considering offers until an acceptable offer is made, and accepted, or until it becomes apparent that no acceptable offer will be made. The brevity or the length of this process does not remove it from "negotiating."6

The definition of "arrangement" is drawn from Webster's New World Dictionary (College Ed. 1968), and the definition of "negotiating" from United States v. McShain, Inc., supra, a civil contract action involving government procurement.

Meanwhile, a discovery dispute erupted that required court intervention. The Government resisted defendant's requests under Rule 16, Fed.R.Crim.P., for his chronological files and other materials useful to refreshing his recollection about his daily activities during all of 1976 and the first six months of 1977.7 The Government contended that the chronological files and related papers were not material within the meaning of Rule 16(a)(1)(C) and that the request should be denied as "a demand for an openended inspection and examination of the Government's files."8

At oral argument on the motion, the Government acknowledged that although the indictment specified that the alleged acts of substantial participation in the ABN proposal were confined to the period from December, 1976, to June, 1977, the "arrangement" or "negotiating" might have arisen or taken place any time during the defendant's tenure as director of the Bureau.9 Accordingly, the failure of the indictment to specify when the alleged connection with ABN arose rendered the defendant accountable for all his actions over an 18-month period. The Court granted the defendant's discovery request on the ground, among others, that the defendant needed the materials to prepare himself to recall and account for all his activities during the 18-month period in which, according to the Government, he might have initiated an "arrangement" or a process of "negotiating."

On October 9, 1979, in response to what the defendant described as the "in large part, inadequate" response by the Government to the Bill of Particulars, the defendant renewed his motion to dismiss Count I on the same grounds raised in his original motion to dismiss. See page 657, supra. The defendant noted that "the existence of negotiations or an arrangement must coincide with an act of substantial participation." Memorandum of Law in Support of Motion to Dismiss, October 9, 1979, at 3. Further characterizing the Government's response to the Bill of Particulars, the defendant concluded:

All in all, the government appears, by its own admissions to know nothing about any arrangement or negotiations. The government's response to the bill of particulars, thus, does not cure the defect present in the indictment.

Id.

In the argument on the motion to dismiss, the Government proffered and the defendant conceded that a witness would testify that in November, 1976, prior to...

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