US v. Baird

• Decision Date: 01 May 1990
• Docket Number: Crim. No. 87-0076.
• Citation: 778 F. Supp. 534
• Court: U.S. District Court — District of Columbia
• Parties: UNITED STATES of America v. David P. BAIRD.

778 F. Supp. 534

UNITED STATES of America v. David P. BAIRD.

Crim. No. 87-0076.

United States District Court, District of Columbia.

May 1, 1990.

Jay B. Stephens, U.S. Atty., John M. Facciola, Joan Draper, Office of U.S. Atty., for the Government.

David Kagan-Kans, Fisher, Morin & Kagan-Kans, P.C., Washington, D.C., for David P. Baird.

OPINION

CHARLES R. RICHEY, District Judge.

On January 27, 1989, the jury returned a verdict in the above-captioned case finding the defendant David P. Baird guilty of violating 18 U.S.C. §§ 203(a) and (c), the federal conflict of interest statute. Now before the Court is a motion by the defendant for judgment of acquittal.¹ Upon careful consideration of defendant's motion, the supporting and opposing legal memoranda, and the underlying law, the Court will deny the defendant's motion.

Defendant advances essentially three arguments in support of his motion. First, defendant contends that the Court's instructions to the jury concerning the elements of the offense with which defendant was charged were incomplete because they did not contain the level of scienter required for the commission of that offense. Second, defendant maintains that the prosecutor suggested to the jurors that defense counsel was trying to mislead them by raising the issue of "consciousness of wrongdoing," even though "consciousness of wrongdoing" was not an element of the offense with which defendant was charged. Defendant argues that this suggestion by the prosecutor was particularly prejudicial in view of the fact that it was the prosecutor, and not defense counsel, who initially raised the issue of "consciousness of wrongdoing." Moreover, the defendant asserts that the Court improperly deprived him of the opportunity to rebut the government's evidence that defendant consciously knew that his acts were in violation of the law. Finally, defendant maintains that the government improperly read from a transcript, which was not received into evidence, during its rebuttal argument, and that the portion of the transcript read by the prosecutor was extremely prejudicial to him. The Court will address each of defendant's arguments in turn.

The Indictment in this case charges defendant with having violated 18 U.S.C. § 203(a) by receiving or agreeing to receive compensation from the International Science and Technology Institute, Inc. ("ISTI") for services he performed or would perform for ISTI before the United States Coast Guard ("Coast Guard") while he was a special government employee with the Coast Guard. These services allegedly included a personal appearance by defendant on behalf of ISTI at a conference on August 9, 1985, at which ISTI presented a contract proposal to representatives of the Coast Guard concerning the New Orleans Vessel Traffic Systems Project.

The statutory language of 18 U.S.C. § 203(a), in pertinent part, provides:

(a) Whoever, otherwise than as provided by law for the proper discharge of official duties, directly or indirectly — (1) demands, seeks, receives, accepts or agrees to receive or accept any compensation for any representational services, as agent or attorney or otherwise, rendered or to be rendered either personally or by another—

. . . . .

B) at a time when such person is an officer or employee of the United States in the executive, legislative, or judicial branch of the Government, or in any agency of the United States, in relation to any proceeding, application, request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest or other particular matter in which the United States is a party or has a direct and substantial interest, before any department, agency, court, court-martial, officer, or any civil, military, or naval commission; or

(2) knowingly gives, promises, or offers any compensation for any such representational services rendered or to be rendered at a time when the person to whom the compensation is given, promised, or offered, is or was such ... employee;

shall be subject to the penalties set forth in section 216 of this title.

18 U.S.C. § 203(a) (emphasis added).

Defendant argues that in instructing the jury on the elements of the offense with which the defendant was charged, the Court's omission of the term "knowingly" from the elements was error.² Section 203(a) contains two subsections. The first subsection makes it a crime to demand, seek, receive, accept, or agree to receive or accept compensation under certain circumstances; the second subsection makes it a crime to knowingly give, promise, or offer compensation under certain circumstances. The language of the first subsection, which is the one defendant was charged with violating, is strikingly different from the second subsection in that it does not contain the term "knowingly." Congress' inclusion of the term "knowingly" in subsection 203(a)(2) and its omission of this term in subsection 203(a)(1) provide a strong suggestion that Congress intended to be harsher on government employees who received compensation resulting in a conflict of interest than on the donors of such compensation. See United States v. Evans, 572 F.2d 455, 480 (5th Cir.1978) ("The purpose of the conflict of interest statute is to reach any situation in which the judgment of a government agent might be clouded because of payments or gifts made to him by reason of his position `otherwise than as provided by law for the proper discharge of official duty.'"), cert. denied, 439 U.S. 870, 99 S.Ct. 200, 58 L.Ed.2d 182 (1978). Moreover, the only logical explanation the Court can discern for Congress' inclusion of the term "knowingly" in one subsection and its exclusion in the other is Congress' intent to treat government employees receiving payments from those interested in matters in which the United States is a party or has a direct or substantial interest more harshly than the donors of such payments. See Carter v. Director, Office of Worker's Compensation Programs, 751 F.2d 1398, 1401 (D.C.Cir.1985) (explaining that maxim of statutory construction "expressio unius est exclusio alterius" only applies "when there is no apparent reason for the inclusion of one disposition and the omission of a parallel disposition except the desire to achieve disparate results").

Even assuming that the omission of the term "knowingly" from subsection 203(a)(1) amounted to nothing more than inadvertence on the part of Congress, the fact that the Court did not include the term "knowingly" in its instructions to the jury concerning the elements of the crime with which defendant was charged is not fatal. Immediately after the Court outlined the elements of the offense for the jury, the Court instructed the jury as follows:

All crimes require some kind of intent. Intent means that a person had a purpose to do a thing. It means that he or she acted with the will to do a thing. It means that he or she acted consciously or voluntarily, and not inadvertently or accidentally.

Some criminal offenses require a "general intent" and others require a specific intent. This offense requires only a general intent. That means that, if you find that the defendant knowingly committed the act that the law here involved makes a crime, you may infer his intent to commit the offense from the fact that he did the illegal acts.³

Moreover, the fact that the Court instructed the jury on the question of intent after it instructed the jury as to the elements of the charged offense does not give the intent instruction any less weight. The Court instructed the jury that it was "to consider all of the Court's Instructions as a whole," and that it was not to "disregard any Instruction, or give special attention to any one Instruction, or question the wisdom of any rule of law."⁴

Plaintiff argues that he was prejudiced by the Court not permitting him to introduce evidence to rebut the government's argument that defendant knew what he was doing was in violation of the law. At bottom, any such evidence would have been irrelevant because defendant was charged with a general intent crime. As such, evidence as to defendant's consultation with lawyers prior to his appearing before the Board on August 9, 1985 or his ignorance of the federal conflict of interest statute and its commands would not have provided defendant with a basis for a valid defense. Compare United States v. Bristol, 473 F.2d 439, 443 (5th Cir.1973) (ignorance of the law is not a defense to a general intent crime) with United States v. Chavis, 772 F.2d 100, 108 (5th Cir.1985) ("ignorance of the law is relevant to the issue of specific intent"). The Court even instructed the jury accordingly.⁵

Defendant's argument that he was prejudiced by the prosecutor suggesting in his rebuttal argument that his lawyer was attempting to mislead the jury by raising the issue of "consciousness of wrongdoing" must also fail.⁶ In response to defendant's argument, the government asserts that its rebuttal argument was invited by certain statements that defendant's lawyer made in his closing argument. The Court is not in a position to decide whether the prosecutor's rebuttal argument was invited by or responsive to the closing argument of defendant's lawyer because of the passage of a significant period of time since the parties made their closing arguments and the absence of a transcript of those arguments.⁷ As such, for the purpose of defendant's motion only, the Court will assume that the prosecutor's comments were not responsive to or invited by the closing argument of defendant's lawyer.

"When examining a prosecution's rebuttal argument for constitutional error, the issue is whether the prosecution's comments `"so infected the trial with unfairness as to make the resulting conviction a denial of due process."'" United States v. Turk, 870 F.2d 1304, 1308 (7th Cir.1989) (quoting Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471, 91 L.Ed.2d 144 (1986) (quoting Donnelly v. De...