USA. v. Schaffer, 98-3123

Citation337 U.S. App. D.C. 214,183 F.3d 833
Decision Date10 September 1999
Docket NumberNo. 98-3126,No. 98-3123,98-3123,98-3126
Parties(D.C. Cir. 1999) United States of America, Appellant/Cross-Appellee v. Archibald R. Schaffer, III, Appellee/Cross-Appellant Consolidated with
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

[Copyrighted Material Omitted] Appeals from the United States District Court for the District of Columbia(No. 96cr00314-02)

Robert W. Ray, Deputy Independent Counsel, argued the cause for appellant/cross-appellee. With him on the briefs were Donald C. Smaltz, Independent Counsel, Charles M. Kagay, Chief Appellate Counsel, Wil Frentzen, Adrienne R.

Baron and Joseph P. Guichet, Associate Independent Counsel.

William H. Jeffress, Jr., argued the cause for appellee/cross-appellant. With him on the briefs were Joe R. Caldwell, Jr., James R. Heavner, Jr., Grant R. Vinik and Woody Bassett.

Before: Wald, Silberman and Henderson, Circuit Judges.

Opinion for the Court filed by Circuit Judge Wald.

Opinion dissenting from Part II(A)(2) filed by Circuit Judge Henderson.

Wald, Circuit Judge:

The United States appeals a decision by the district court granting Archibald Schaffer's post-trial motion for a judgment of acquittal. After a jury found Schaffer guilty of violating the Meat Inspection Act, 21 U.S.C. § 622, and the federal gratuity statute, 18 U.S.C. § 201(c)(1)(A), the court set aside the verdict on the grounds that the jury had been presented insufficient evidence to support a verdict of guilt on either count. See United States v Williams, 29 F. Supp. 2d 1 (D.D.C. 1998). Subsequently, the court conditionally denied Schaffer's motion for a new trial, a decision from which Schaffer has filed a conditional cross-appeal. While we agree with the district court's determination that the evidence cannot support a conviction for giving an unlawful gratuity, we find sufficient evidence in the record from which a reasonable juror could have concluded that Schaffer violated the Meat Inspection Act. Therefore, we affirm the district court's decision in part and reverse in part. We additionally reject the challenges raised in Schaffer's conditional cross-appeal. Accordingly, we vacate the judgment of acquittal on the Meat Inspection Act count, reinstate the jury verdict on that count, and remand for sentencing.

I. Background

The evidentiary disputes in these appeals must be evaluated in their surrounding context, a much-publicized backdrop that contains more than a hint of Washington theater. Because consideration of whether the jury verdict has sufficient evidentiary underpinnings is necessarily fact-intensive, we set out the relevant incidents in some detail. The criminal charges brought against Archibald Schaffer ("Schaffer" or the "defendant") trace back to 1994, when allegations of illegality were first levied against then-Secretary of Agriculture Alphonso Michael Espy ("Secretary Espy," "Espy," or the "Secretary"). On application of the Attorney General, a special division of this circuit appointed Donald C. Smaltz as independent counsel and granted him the authority to investigate whether Secretary Espy had violated federal criminal law by accepting gifts from individuals or corporations with business before, or regulated by, the United States Department of Agriculture ("USDA"). See In re Espy, 145 F.3d 1365 (D.C. Cir. Spec. Div. 1998). Along with some other regulated entities, Tyson Foods International ("Tyson Foods"), the world's largest producer of poultry products, ultimately came under official scrutiny for its generosity towards Secretary Espy. Schaffer, then the Director of Media, Public and Governmental Affairs for Tyson Foods, became a target in this investigation for his alleged role in transmitting things of value from his employer to the Secretary.

The independent counsel's inquiry into the relationship between Tyson Foods and Secretary Espy focused upon a chain of events that date back to the transition period preceding William Jefferson Clinton's inauguration as President. In December of 1992, at a meeting requested by then Congressman Espy with Don Tyson and John Tyson, respectively the Chairman of the Board and the President of the Beef and Pork Division at Tyson Foods, the Congressman communicated his desire and his qualifications to become the Secretary of Agriculture. He was subsequently nominated to that position on December 24, 1992, and sworn in on January 22, 1993, taking office in the midst of a major public health crisis. An outbreak of E coli 0157:H7 ("E coli") in the Pacific Northwest, apparently stemming from undercooked hamburger meat, had caused the death of three children and generated illness in six hundred other individuals. Since the Department of Agriculture has ultimate statutory responsibility for the integrity of the nation's food supply, including authority to regulate both the poultry and the meat industry, the E coli outbreak was a matter of major importance within the Department.

In response to the public concern, Secretary Espy and the USDA announced a series of initiatives and new regulations designed to enhance food safety. These policies were directed at preventing contamination and instructing the public as to the proper handling procedures for meat and poultry. Along with other affected companies, Schaffer participated in lobbying the Secretary on behalf of Tyson Foods, and in disseminating the company's views with respect to pending and ongoing regulatory matters. During this same period of time, Schaffer, on behalf of Tyson Foods, participated in providing items of value to Secretary Espy. According to the indictment, Schaffer provided these gratuities in an attempt to influence the Secretary's actions with respect to matters of interest to Tyson Foods then pending before the USDA.

The indictment alleges a pattern of gift-giving which predates Espy's official elevation to the position of Agriculture Secretary and continues through January of 1994. Through Schaffer and others, Tyson Foods provided the following things of value to Secretary Espy and those closely affiliated with him: (1) In early January of 1993, Tyson Foods hosted Espy, his girlfriend Patricia Dempsey ("Dempsey"), and two of Espy's siblings at the $1,500 per person inaugural dinner at the Washington Sheraton Hotel, providing each a seat at one of the three Tyson Foods' tables purchased for the evening. (2) In April of 1993, Don Tyson invited Secretary Espy and Dempsey to a weekend-long birthday party at the Tyson Foods Management Training Complex ("Tyson Complex") in Russellville, Arkansas (the "Russellville party").When Espy accepted the invitation, Schaffer arranged for their transportation on a Tyson Foods corporate jet.1 Secretary Espy attended the party with Dempsey, at which they were entertained by B.B. King and other musicians, and then spent the night at the Tyson Complex. (3) In September of 1993, John Tyson advised Dempsey of, and recommended that she apply for scholarship money available from the Tyson Foundation. Dempsey ultimately received a $1,200 Foundation scholarship. (4) On January 16, 1994, Secretary Espy and Dempsey attended the Dallas Cowboys-Green Bay Packers playoff game as guests of Don Tyson. Tyson Foods purchased Dempsey's plane ticket, arranged car and limousine transportation for Espy and Dempsey, and provided seats in the Tyson Foods skybox.2

During the gift-giving period, USDA officials were at various stages in the process of developing and implementing initiatives that would seriously impact the business of Tyson Foods. On February 3, 1993, while accompanying the Secretary on a fact-finding mission to the area affected by the E coli outbreak, Dr. Russell Cross ("Dr. Cross"), the Administrator of USDA's Food Safety and Inspection Service ("FSIS"), outlined to an enthusiastic Secretary Espy a series of policies designed to enhance the safety of meat and poultry products on which FSIS had been working. The Secretary announced his intention to move forward along the lines of Dr. Cross's policy proposals at a meeting with industry representatives the following day. On February 5, 1993, Dr. Cross made a similar presentation before a Senate subcommittee, announcing a series of initiatives intended to prevent further outbreaks of food poisoning. Dr. Cross outlined a "Two-Track" approach to eliminating the presence of pathogens in meat and poultry products. Track 1, aimed at maximizing the performance of then-existing inspection methods, involved the implementation of six initiatives. Included among the six, FSIS proposed to enhance its detection and control measures, to develop quantitative risk analysis, to encourage the use of technologies that reduce pathogens, and to increase consumer awareness of safe food practices through disseminating information on how best to handle meat and poultry products. Track 2, which at that stage was more amorphous than Track 1, called for a revolutionary redesign of safety programs.

Throughout 1993, the USDA continued work on two of the Track 1 policies of great interest to Tyson Foods. First, FSIS refined and implemented a plan for pathogen reduction, an effort which eventually acquired the name "zero tolerance."3 Although its attention initially focused upon meat, the improper handling of which had generated the E coli outbreak, FSIS was also in the process of formulating a "zero tolerance" pathogen control program for poultry. Second, FSIS worked on developing a consumer education program that would apply to all meat and poultry products. This effort culminated in an emergency regulation mandating the use of so-called "safe handling labels" on all not-ready-to-eat products. Intended to heighten consumer awareness, these labels would contain care and handling instructions designed to eliminate the risk posed by food-borne pathogens. Announced by Secretary Espy on August 11, 1993, and officially...

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