United States v. Schaffer, Archibald , 183 F.3d 833 ( 1999 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 12, 1999 Decided July 23, 1999
No. 98-3123
United States of America,
Appellant/Cross-Appellee
v.
Archibald R. Schaffer, III,
Appellee/Cross-Appellant
Consolidated with
No. 98-3126
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 Coun-
sel.
William H. Jeffress, Jr., argued the cause for appel-
lee/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.
s 622, and the federal gratuity statute, 18 U.S.C.
s 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 deter-
mination 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 Schaf-
fer'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 evaluat-
ed in their surrounding context, a much-publicized backdrop
that contains more than a hint of Washington theater. Be-
cause 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 Al-
phonso 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 investi-
gate whether Secretary Espy had violated federal criminal
law by accepting gifts from individuals or corporations with
business before, or regulated by, the United States Depart-
ment 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 Secre-
tary.
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 preced-
ing 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, respec-
tively 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 ham-
burger meat, had caused the death of three children and
generated illness in six hundred other individuals. Since the
Department of Agriculture has ultimate statutory responsibil-
ity 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 direct-
ed 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 pre-
dates 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 Com-
plex") in Russellville, Arkansas (the "Russellville party").
When Espy accepted the invitation, Schaffer arranged for
their transportation on a Tyson Foods corporate jet.1 Secre-
__________
1 While Dempsey flew from Washington to Russellville on the
Tyson Foods jet, Secretary Espy came separately from Mississippi,
where he had delivered two commencement addresses. Both Sec-
tary 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 limou-
sine transportation for Espy and Dempsey, and provided
seats in the Tyson Foods skybox.2
During the gift-giving period, USDA officials were at vari-
ous 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 Secre-
tary on a fact-finding mission to the area affected by the E
coli outbreak, Dr. Russell Cross ("Dr. Cross"), the Adminis-
trator 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 subcom-
mittee, 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 patho-
gens in meat and poultry products. Track 1, aimed at
maximizing the performance of then-existing inspection meth-
ods, involved the implementation of six initiatives. Included
__________
retary Espy and Dempsey returned to Washington on the company
jet.
2 Although Schaffer did not participate in providing the last two
things of value, the jury heard this evidence of Tyson Foods' total
largess as part of the case against Jack Williams, a lobbyist for
Tyson Foods and Schaffer's co-defendant.
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 toler-
ance."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. An-
nounced by Secretary Espy on August 11, 1993, and officially
promulgated five days later, this emergency interim rule
required that USDA-approved labels be in place within sixty
days. After an intense industry lobbying campaign coupled
with White House intervention, Secretary Espy ultimately
agreed to delay implementation of the emergency regulation,
pushing the date for full compliance back to April 15, 1994.
In response to the independent counsel's investigation into
this concatenation of events, a federal grand jury in the
__________
3 The policy apparently acquired this nickname from a March 2,
1993 memorandum that the Deputy Administrator of FSIS sent to
cattle slaughter establishments, requiring them to trim off any beef
contaminated with fecal matter. With respect to such contamina-
tion, the directive concluded, "our policy will be zero." See 6/17/98
Transcript ("Tr.") at 433-34.
District of Columbia indicted Schaffer on thirteen separate
counts of a fifteen count indictment on January 15, 1998.
Together with co-defendant Jack Williams, a lobbyist for
Tyson Foods, the indictment charged Schaffer with: conspir-
acy to defraud the United States of the honest services of
Secretary Espy, in violation of 18 U.S.C. s 371; three counts
of wire fraud, in violation of 18 U.S.C. ss 1343, 1346; four
counts of providing unlawful gratuities, in violation of 18
U.S.C. s 201(c)(1)(A); and three counts of violating the Meat
Inspection Act, 21 U.S.C. s 622 (the "Act"). The indictment
additionally alleged that Schaffer had committed mail fraud,
in violation of 18 U.S.C. ss 1341, 1346.4 The district court
dismissed two of the counts in response to pretrial motions,
and six other counts following the close of the prosecution's
case-in-chief. Following completion of an eight-day trial, the
five remaining counts against Schaffer--two under the Meat
Inspection Act and three for providing unlawful gratuities--
were submitted to the jury. Schaffer was found guilty on two
of these counts, first for violating the Meat Inspection Act5 in
__________
4 Jack Williams was also charged with two counts of making false
statements to federal agents in violation of 18 U.S.C. s 1001, and
found guilty on each. Because Williams has withdrawn his appeal
from the district court's decision denying his acquittal and new trial
motions, our discussion focuses on Schaffer alone. We mention
Williams solely to provide a complete and accurate portrait of the
proceedings before the district court.
5 21 U.S.C. s 622 provides:
Any person, firm, or corporation, or any agent or employee
of any person, firm, or corporation, who shall give, pay or offer,
directly or indirectly, to any ... officer or employee of the
United States authorized to perform any of the duties pre-
scribed by this subchapter or by the rules and regulations of
the Secretary any money or other thing of value, with intent to
influence said ... officer or employee of the United States in
the discharge of any duty provided for in this subchapter, shall
be deemed guilty of a felony, and, upon conviction thereof, shall
be punished by a fine not less than $5,000 nor more than
$10,000 and by imprisonment not less than one year nor more
than three years.
conjunction with Secretary Espy's attendance at the Russell-
ville party, and second for violating the federal gratuity
statute6 through providing tickets to the inaugural dinner.
Upon the defendant's subsequent Rule 29 motion for a
judgment of acquittal, the district court set aside the jury's
verdict on both counts. Acknowledging that the jury had
heard sufficient evidence to support an inference that Schaf-
fer had either given, or aided and abetted the giving of things
of value to Secretary Espy, an essential element under each
of the criminal statutes, the court nevertheless concluded that
no rational trier of fact could have concluded that Schaffer
had acted with the requisite intent to influence on either
occasion. See United States v. Williams, 29 F. Supp. 2d at
6.7 Using this court's decision in United States v. Sun-
__________
6 18 U.S.C. s 201(c)(1)(A) provides that anyone who
otherwise than is provided by law for the proper discharge of
official duty ... directly or indirectly gives, offers, or promises
anything of value to any public official, former public official, or
person selected to be a public official, for or because of any
official act performed or to be performed by such public official,
former public official, or person selected to be a public official
... shall be fined under this title or imprisoned for not more
than two years, or both.
The statute further defines an "official act" to include "any decision
or action on any question, matter, cause, suit, proceeding or contro-
versy, which may at any time be pending, or which may by law be
brought before any public official, in such official's official capaci-
ty...." 18 U.S.C. s 201(a)(3).
7 The court conditionally disposed of Schaffer's new trial motion
in a separate and subsequent order. See United States v.
Williams, No. 96-0314 (D. D.C. Oct. 6, 1998) (order denying new
trial motion). Schaffer had argued that the court erred in preclud-
ing him from eliciting the fact of John and Don Tyson's immunity
agreements during the cross-examination of John Tyson, and that
the prosecution had made improper and prejudicial comments in
each of its opening, closing, and rebuttal statements. The court
referenced an earlier trial ruling and its Williams opinion as the
respective grounds for rejecting each of these contentions. See
discussion infra pp. 30-35.
Diamond Growers of California, 138 F.3d 961 (D.C. Cir.
1998) ("Sun-Diamond I"), aff'd, 119 S. Ct. 1402 (1999) ("Sun-
Diamond"), as its point of departure, the court read both the
federal gratuity statute and the Meat Inspection Act as
requiring a link between the gifts and an intent to influence
specific official acts of the recipient. Since the trial and the
jury instructions had each revolved around two official USDA
policies--i.e. zero tolerance and safe handling labels--the
court examined the nexus between those policies and the gifts
given to Espy to determine if it was strong enough to sustain
a finding of intent to influence an official act (under the
gratuity statute) or the discharge of any duty (under the
Meat Inspection Act). Beginning with the gratuities count,
the court asserted that "[t]here was no evidence that Mr.
Schaffer or anybody in Tyson Foods knew or anticipated
anything about zero tolerance or mandatory safe handling
labels at the time of the inaugural dinner," Williams, 29
F. Supp. 2d at 7, because E coli had first been identified as
the cause of the deadly food poisoning outbreak only earlier
that day. As for the Meat Inspection Act count, the court
similarly concluded that neither of the two policies could
provide the requisite nexus with the Russellville party; each
was disqualified for temporal reasons. In the court's view,
zero tolerance had ceased to be a live issue for meat more
than two months before the weekend gala, and Tyson Foods
had yet to voice any objection to the regulation mandating
safe handling labels. See id. at 7-8. Accordingly, the court
granted Schaffer's Rule 29 motion and entered a judgment of
acquittal on each count. Seeking reinstatement of the jury
verdict, the independent counsel appeals from this decision on
behalf of the United States.
II. Discussion
In reviewing a post-verdict judgment of acquittal, this court
undertakes an examination identical to that made by the trial
judge in passing upon the defendant's motion. We examine
the evidence in the light most favorable to the government,
and draw all reasonable inferences in its favor. See United
States v. Singleton, 702 F.2d 1159, 1163 (D.C. Cir. 1983).
While we recognize the district court's unique vantage point
in evaluating the evidence, our review is nevertheless de novo.
See United States v. Campbell, 702 F.2d 1182, 1183 (D.C. Cir.
1983) (in banc). Finally, in order to safeguard the fact-
finding function assigned to the jury, we make a searching
review of the record to determine whether the prosecution
presented evidence from which a rational juror could have
found guilt beyond a reasonable doubt. Unless we conclude
that no reasonable jury could have found guilt beyond a
reasonable doubt on the evidence presented, we defer to its
determinations.
A. The Government's Appeal
1. The Gratuity Statute and the Inaugural Dinner
Our assessment of a guilty verdict's evidentiary underpin-
nings necessarily begins with the language of the statute
purportedly contravened, and the essential elements of the
crime proscribed therein. The federal gratuity statute makes
it unlawful for anyone, directly or indirectly, to
give[ ], offer[ ], or promise[ ] anything of value to any
public official, former public official, or person selected to
be a public official, for or because of any official act
performed or to be performed by such public official,
former public official, or person selected to be a public
official....
18 U.S.C. s 201(c)(1)(A) (emphasis added). As the trial court
correctly instructed, a violation of this statute requires the
presence of three separate elements: that the defendant (i)
knowingly gave a thing of value; (ii) to a public official or
person selected to be a public official; (iii) for or because of
any official act performed or to be performed. Since the trial
court based its decision vacating the gratuities conviction
upon the third element, properly conceding that the jury had
been presented with sufficient evidence of the first two ele-
ments, see Williams, 29 F. Supp. 2d at 6, we focus our
attention there as well.
Before analyzing the evidence, however, it is necessary to
discuss a key question of statutory interpretation that lies at
the heart of this case. As both parties readily admit, the
statutory language at issue, that a thing of value be given "for
or because of an official act," requires some nexus between
the thing given and an "official act," which the statute defines
as "any decision or action on any question, matter, cause, suit,
proceeding or controversy, which may at any time be pend-
ing, or which may by law be brought before any public
official, in such official's official capacity...." 18 U.S.C.
s 201(a)(3). Though this case was tried before the Supreme
Court handed down its recent Sun-Diamond decision, the
proceedings were fully in accord with the Court's subsequent
holding that "the giving of gifts by reason of the recipient's
mere tenure in office" does not constitute a violation of the
gratuity statute. 119 S. Ct. at 1408. In the words of the
district court's jury instructions, "[i]t is not a crime to give
things of value to a public official merely to get cozy or in the
hopes of inducing warm feelings toward the giver or the
giver's employer." 6/25/98 Tr. at 1779. But while all in-
volved agree that the gratuity statute's scienter requirement
demands more than a gift motivated solely by the recipient's
official status, and that the statutory terms are "pregnant
with the requirement that some particular official act be
identified and proved," Sun-Diamond, 119 S. Ct. at 1407, the
magnitude of the necessary link, and its proper translation
into a concrete rule of decision, remains in some doubt.
Although the Supreme Court provided a preliminary expo-
sition of the federal gratuity statute in Sun-Diamond, the
Court faced a narrow question and provided an equally
circumscribed answer. Arising out of the same investigation
of Secretary Espy as the present case, the independent
counsel had there charged an agricultural trade organization
with providing unlawful gratuities to the Secretary. Al-
though the indictment discussed two separate policy matters
pending before the Secretary during the gift-giving period, it
did not allege any direct connection between the gifts and
those (or any other) particular matters of concern to Sun-
Diamond. The defendant appealed his ultimate conviction on
the grounds that the district court had improperly charged
the jury, as the court's instructions only required the jury to
find that Espy's official position motivated the gift. The
Supreme Court rejected this reading of the gratuity statute
as contrary to the language of its text, see id., its place within
the larger statutory and regulatory framework governing the
integrity of public officials, and congressional intent. See id.
at 1408-09. In the Court's view, the operative "for or be-
cause of" language naturally means "for or because of some
particular official act of whatever identity," id. at 1407 (em-
phasis added), and requires the government to "prove a link
between a thing of value conferred upon a public official and a
specific 'official act' for or because of which it was given." Id.
at 1411. Since Sun-Diamond might have been convicted for
gifts that lacked any nexus with a particular official act but
were instead motivated by the Secretary's mere status, the
Court felt no need to explore the degree of proof necessary to
show the link or how the government might go about estab-
lishing its presence.
Given the lack of specific guidance from the Court on the
amount and kind of evidence necessary to establish a nexus
with an official act,8 we look to the statute itself. The
pertinent language resides within a larger provision, 18
U.S.C. s 201, that proscribes the giving and the receipt of
both bribes9 and illegal gratuities. As we recognized in
__________
8 The specific interpretive methods used by the Sun-Diamond
Court to arrive at its conclusion similarly do not help us in this
second-level inquiry. Neither elementary linguistic analysis, the
structure of the gratuity statute or its place within the larger
statutory and administrative fabric regulating gifts to officeholders,
nor the desire to avoid trapping the unwary point towards any
specific interpretation of the degree of proof necessary to satisfy
the Court's "for or because of a particular official act" language.
9 18 U.S.C. s 201(b)(1) provides in relevant part that whoever
directly or indirectly, corruptly gives, offers or promises any-
thing of value to any public official or person who has been
selected to be a public official, or offers or promises any public
official ... to give anything of value to any other person or
entity, with intent ... to influence any official act ...
United States v. Campbell, 684 F.2d 141, 149 (D.C. Cir. 1982),
"[i]t is no easy task to articulate the requisite intent neces-
sary to constitute accepting or giving an illegal gratuity."
Because, however, the bribery section has received judicial
elaboration and the gratuity provision has not, the former
provides an illuminating backdrop against which to begin our
interpretive task. The two prohibitions differ in two funda-
mental respects. First, bribery requires a quid pro quo, and
accordingly can be seen as having a two-way nexus. That is,
bribery typically involves an intent to affect the future actions
of a public official through giving something of value, and
receipt of that thing of value then motivates the official act.
See Sun-Diamond I, 138 F.3d at 966. A gratuity, by con-
trast, requires only a one-way nexus; "the gratuity guideline
presumes a situation in which the offender gives the gift
without attaching any strings...." United States v. Mari-
ano, 983 F.2d 1150, 1159 (1st Cir. 1993). See also United
States v. Brewster, 506 F.2d 62, 72 (D.C. Cir. 1974) ("the
briber is the mover or producer of the official act, but the
official act for which the gratuity is given might have been
done without the gratuity, although the gratuity was pro-
duced because of the official act").
The two provisions additionally differ in their temporal
focus. Bribery is entirely future-oriented, while gratuities
can be either forward or backward looking. See Campbell,
684 F.2d at 148. In other words, whereas bribery involves
the present giving, promise, or demand of something in
return for some action in the future, an unlawful gratuity can
take one of three forms. First, a gratuity can take the form
of a reward for past action--i.e. for a performed official act.
__________
has committed bribery; while 18 U.S.C. s 201(b)(2) provides in
relevant part that whoever
being a public official or person selected to be a public official,
directly or indirectly, corruptly demands, seeks, receives, ac-
cepts, or agrees to receive or accept anything of value personal-
ly or for any other person or entity, in return for ... being
influenced in the performance of any official act ...
has committed bribery.
See, e.g., id. at 148-50 (illegal gratuity where construction
company moved the household goods of a judge who had
suspended hundreds of its traffic tickets). Second, a gratuity
can be intended to entice a public official who has already
staked out a position favorable to the giver to maintain that
position. See Sun-Diamond, 119 S. Ct. at 1408 (postulating
scenario of gift to Department of Justice antitrust appointee
who had publicly indicated support of the giving company's
pending merger because of anticipated continued future sup-
port). Finally, a gratuity can be given with the intent to
induce a public official to propose, take, or shy away from
some future official act. See, e.g., United States v. Sawyer, 85
F.3d 713 (1st Cir. 1996) (gifts to legislators who had ability to
affect company's ongoing legislative concerns constitute un-
lawful gratuities under analogously worded Massachusetts
statute). This third category would additionally encompass
gifts given in the hope that, when the particular official
actions move to the forefront, the public official will listen
hard to, and hopefully be swayed by, the giver's proposals,
suggestions, and/or concerns.
The tickets to the inaugural dinner, which form the basis of
Schaffer's gratuity conviction, fall into the third variety. Two
latent official actions of interest to Tyson Foods--i.e., zero
tolerance and safe handling labels--having clearly been es-
tablished, the sufficiency of the evidence question concerning
their nexus with the gratuity is two-fold. First, we assess
whether a rational trier of fact could conclude that Schaffer
either provided or knowingly aided and abetted Tyson Foods
in the provision of the inaugural tickets to Secretary Espy.10
__________
10 Since the district court instructed the jurors that they could
find Schaffer guilty for aiding and abetting either of the counts
charged, we use the phrase "knowingly aided and abetted the
provision of" as a shorthand for the full set of instructions that
follow.
[ ] You may find the defendants or either of them guilty of
the Meat Inspection Act and gratuities counts charged without
finding that they personally committed each of the acts that
made up the crime or that they were present while the crime
was being committed.
If the evidence supports such a finding, we then ask whether
a rational jury could additionally have determined that the
thing of value was provided with the requisite statutory intent
to influence Secretary Espy in his actions with regard to
those policies. Beginning with the first question, we think it
abundantly clear that the evidence presented satisfies the
burden of sufficiency. The government introduced a series of
internal Tyson Foods documents relating to the inaugural
dinner, including: (i) two separate check requisitions to cover
the cost of Tyson Foods' tables, each filled out and signed by
Schaffer, see 6/17/98 Tr. at 392-93; (ii) a memo from Schaffer
to the Tyson inaugural team listing table assignments for the
dinner, including those of Espy, his girlfriend, and his two
siblings, see GX87; and (iii) a letter from the presidential
inaugural regarding procedures for the event, including the
need for tickets, next to which Schaffer had written that he
would pick up and distribute them. See GX36; 6/24/Tr. at
1595-95. In addition, the government elicited testimony that
Schaffer had been involved in coordinating Tyson Foods'
participation at various inaugural events. See 6/19/98 Tr. at
913. While the defense sought to minimize Schaffer's role,
the government's testimony, taken as a whole, supports a
__________
Any person who in some way intentionally participates in the
commission of a crime aids and abets the principle offend-
er....
To find that a defendant aided and abetted in committing a
crime, you must find that the defendant knowingly associated
himself with the persons who committed the crime, that he
participated in the crime as something he wished to bring
about, and that he intended by his actions to make the crime
succeed.
Now, some affirmative conduct by the defendant to help in
planning or carrying out the crime is necessary.... It is
sufficient if you find beyond a reasonable doubt that the crime
was committed by someone and that the defendant in question
knowingly and intentionally aided and abetted the principal
offenders in committing the crime.
6/25/98 Tr. at 1780-81.
conclusion that Schaffer participated in providing the four
inaugural tickets to Secretary Espy.
The core dispute on the evidentiary sufficiency of the
nexus, however, cannot be disposed of as easily. Because of
its subjective focus on the motivation behind Tyson Foods'
largess, it necessitates a more extensive discussion. In as-
sessing the sufficiency of the evidence presented as to wheth-
er Schaffer acted with the requisite intent to influence a
particular official act, we begin with the recognition that any
attempt to reduce the gratuity statute's nebulous "for or
because of" language into a more concrete formulation will
necessarily be imperfect. When faced with competing expla-
nations for some specific conduct, conduct which could be
either innocuous or illicit depending upon the particular moti-
vation involved, the inquiry will rarely be clean or neat. Both
common sense and practical experience, each of which we
ascribe to the jury, instruct that human beings rarely act for
a single purpose alone. Rather, activity is more typically
multi-causal, and directed towards achieving several rather
than a single end[s]. Accordingly, we do not view the ques-
tion of intent in the Manichean terms of the prosecution and
the defense, focusing instead upon the more realistic and
probative question of whether the acts in question were
substantially, or in large part motivated by the requisite
intent to influence the Secretary. As a final caveat, we note
that as with most cases in which the defendant's state of mind
is at issue, it may be near impossible to establish the requisite
mens rea through direct evidence. In the absence of any
specific statement or other contemporaneous documentation
of the defendant's subjective motivation, the trier of fact can
do no more than ascribe an intent on the basis of the
circumstances surrounding the defendant's actions. See, e.g.,
United States v. Woodward, 149 F.3d 46, 57 (1st Cir. 1998) (in
assessing whether defendant sought to influence official acts,
"[t]he jury was entitled to infer the defendant's intent from
the circumstances surrounding his actions, from indirect, as
opposed to direct, evidence") (citation omitted); Chedick v.
Nash, 151 F.3d 1077, 1083 (D.C. Cir. 1998) (despite absence of
smoking gun, jury entitled to infer intent to defraud from
circumstantial evidence); United States v. Castellanos, 731
F.2d 979, 984 (D.C. Cir. 1984) ("no legal distinction is made
between circumstantial and direct evidence in determining
whether sufficient evidence supports the verdict").
After an extensive examination of the circumstances sur-
rounding the provision of the inaugural tickets, we cannot say
that the trier of fact could reasonably have found the requi-
site intent to influence beyond a reasonable doubt. The
evidence presented was far too meager to support such a
conclusion. In support of its argument to the contrary, the
independent counsel points to the following trial testimony:
(i) as a regulated entity, Tyson Foods routinely had matters
of interest before the USDA; (ii) by 1992, FSIS had begun
developing new safety measures, including zero tolerance and
safe handling labels; (iii) a senior scientist at Tyson Foods,
Dr. Ellis Brunton, knew that the USDA had been developing
new pathogen control policies prior to the E coli outbreak;
(iv) Dr. Brunton generally kept Schaffer abreast of pending
regulatory developments that could impact Tyson Foods; and
(v) the E coli outbreak heightened USDA's interest in both
zero tolerance and safe handling labels, resulting in the
announcement of new policies with respect to each.11 Accord-
__________
11 At oral argument, the independent counsel additionally refer-
enced the Texas Food Industry Assoc. v. USDA opinion, 842
F. Supp. 254, 256 (W.D. Tex. 1993), wherein the district court had
enjoined enforcement of the safe handling labels emergency interim
regulation for failing to satisfy the good cause exception to the
Administrative Procedure Act's notice and comment requirement.
See 5 U.S.C. s 553(b). This decision had been introduced into
evidence during Jack Williams's defense, and his counsel had read a
portion of it to the jury. See 6/24/98 Tr. at 1573-74. In a separate
part of that opinion, the court quotes from the "Background" and
"New Policy Direction" sections of the USDA's interim rule publish-
ed in the Federal Register. See 58 Fed. Reg. 43,478 (August 16,
1993). There, the USDA noted that "[a]gency official [sic] in early
January began to advocate in their speeches and writings that
mandatory safe handling instructions on the labeling of meat and
poultry products was a necessary component of a program to
combat foodborne illness." Id. at 43,481, quoted in Texas Food
ingly, although the record does not entirely support the
district court's conclusion that "[t]here was no evidence that
Mr. Schaffer or anybody in Tyson Foods knew or anticipated
anything about zero tolerance or safe handling labels at the
time of the inaugural dinner," Williams, 29 F. Supp. 2d at 7,
it still cannot support the guilty verdict. Acknowledging the
evidence highlighted by the independent counsel, we also note
the following undisputed testimony. First, Tyson Foods had
purchased its three tables to the dinner before December 24,
1992, the date on which President Clinton announced Espy's
appointment to the position of Agriculture Secretary. Sec-
ond, Espy's name, as well as those of his girlfriend and
siblings, appears on a January 15, 1993 memorandum drafted
by Schaffer that lists the final table assignments for the
inaugural dinner. See GX87. Since the E coli outbreak
occurred sometime in the middle of January, and the USDA
did not become apprised of its actual cause--contaminated
hamburger meat--until January 18th, the day of the inaugu-
ral dinner, USDA's subsequent heightened interest in zero
tolerance and safe handling labels could not have motivated
the invitation extended to Espy, which necessarily predated
January 15th. It was not until February 4th that Secretary
Espy briefed industry representatives on his proposed initia-
tives.
__________
Industry, 842 F. Supp. at 258. From this passage, completely
unrelated to the language for which the opinion had been intro-
duced on Williams's behalf, the independent counsel alleges that the
jury could infer that Schaffer and Tyson Foods were aware of the
USDA's intent to act on this issue at the time of the inaugural
dinner. While we are skeptical of the independent counsel's asser-
tion that the jury considered this non-highlighted language in
assessing the case against Schaffer, even assuming that it did, the
language does not support the proposition for which the indepen-
dent counsel cites it. Simply put, the vague temporal reference to
"agency official[s]" advocating mandatory safe handling instructions
in "early January" is not sufficient to establish that the USDA had
in fact officially initiated a program of promoting safe handling
labels, let alone that Tyson Foods had been privy to the relevant
writings or speeches, before the time when Tyson Foods offered the
inaugural tickets to Secretary Espy.
Once the E coli outbreak is out of the picture, all that
remains is an awareness by a regulated entity that the USDA
had been developing a new pathogen control policy.12 In our
opinion, the inferential leap across the chasm separating this
premise from the requisite conclusion--that the tickets were
intended, beyond a reasonable doubt, to induce Espy to
propose, take, or shy away from some action on zero toler-
ance, or alternatively to ensure that Tyson Foods' proposals,
suggestions and/or concerns were accorded special scrutiny--
cannot be considered reasonable. The breadth of the Su-
preme Court's Sun-Diamond opinion with respect to identi-
fying a particular official act must of necessity spill over
here, creating the need for a more definitive link than the
prosecution provided. To hold otherwise would mean that
any time a regulated entity became aware of any inchoate
government proposal that could affect its interests, and sub-
sequently provided something of value to a relevant official, it
could be held to violate the gratuity statute in the event that
the inchoate proposal later appeared in a more concretized
form. Were the inferential leap from this scenario to an
intent to influence considered reasonable, we would in effect
revive the status-based reading of the gratuity statute the
Court so roundly rejected in Sun-Diamond. We balk at any
such end run.
2. The Meat Inspection Act and the Russellville Birthday
Party
Schaffer was additionally found guilty of violating the anti-
corruption provision of the Meat Inspection Act in connection
with his role in securing the attendance of Secretary Espy
and his girlfriend at Don Tyson's May 1993 Russellville party.
Once again, our assessment of the verdict's evidentiary suffi-
ciency begins with the statutory language.
In relevant part, 21 U.S.C. s 622 provides that:
__________
12 The jury was not presented any evidence that Schaffer, as
opposed to Tyson Foods, was actually aware of the anti-
contamination or safe handling initiatives prior to the February 4th
meeting with Secretary Espy.
Any person, firm, or corporation, or any agent or em-
ployee of any person, firm, or corporation, who shall give,
pay, or offer, directly or indirectly, to any ... officer or
employee of the United States authorized to perform any
of the duties prescribed by this subchapter ... any
money or other thing of value, with intent to influence
said ... officer or employee of the United States in the
discharge of any duty provided for in this subchapter,
shall be deemed guilty of a felony....
(Emphases added). Similar to the gratuities prohibition, a
violation of this statute requires the presence of three sepa-
rate elements: the defendant must have (i) directly or indi-
rectly given (or aided and abetted the giving of); (ii) a thing
of value to a covered official; (iii) with the intent to influence
the discharge of any official duty under the Meat Inspection
Act.13 The Act clearly applies to Tyson Foods, as its Beef
and Pork Division accounted for eight to ten percent of its
overall business. See 6/19/98 Tr. at 910. As with the unlaw-
ful gratuities count, the core of the dispute centers around
whether the prosecution presented sufficient evidence for a
reasonable jury to conclude that Schaffer acted with the
requisite intent to influence any of the Secretary's duties
under the Meat Inspection Act.
Again, we first address a preliminary issue of statutory
construction. With respect to the requisite intent, the lan-
guage of the Meat Inspection Act differs in material ways
from that of the federal gratuity statute. Whereas the Meat
Inspection Act expressly requires an "intent to influence the
discharge of any duty under the Act," an unlawful gratuity
requires that the thing of value be given "for or because of
any official act performed or to be performed." While this
linguistic distinction might appear minor when viewed in
isolation, the place that these two provisions occupy within
their respective statutory schemes magnifies the textual dif-
ference in important respects. See Conroy v. Aniskoff, 507
__________
13 The terms of the Act apply to all cattle, sheep, swine, goats,
horses, mules, and other equines, and to meat products derived
therefrom. See 21 U.S.C. ss 603-624.
U.S. 511, 515 (1993) ("the meaning of statutory language,
plain or not, depends on context").14 In its Sun-Diamond
opinion, the Court emphasized the structure of the gratuity
statute, focusing upon the explicit definition given the statuto-
ry term "official act" and the consequences that logically
followed from that particular wording. The need for an
explicit link with a specific act flowed directly from this
statutory language, as the gratuity provision's "insistence
upon an 'official act,' carefully defined,15 ... [required] that
some particular official act be identified and proved." 119 S.
Ct. at 1407. In the absence of this limiting principle, the
Court recognized, the gratuity statute would unwittingly dis-
place much of the elaborate statutory and administrative
regime otherwise regulating the enrichment of public officials.
See id. at 1410.
By way of comparison, the Meat Inspection Act can be seen
as having both a more limited and a more expansive focus.
On the one hand, the scope of its gratuity provision is
circumscribed by the narrow class of individuals upon which it
operates. By definition, the statute covers only two catego-
ries of persons: officials with duties under the Meat Inspec-
tion Act, and those seeking to influence these officials in the
discharge of their duties. In this sense, the Meat Inspection
Act exemplifies what the Sun-Diamond Court called a "tar-
geted prohibition;" it does not threaten, as did the federal
gratuity statute, to make "misfits" out of other pieces of a
complex regulatory puzzle.16 Id. Within the narrow range of
__________
14 Although the Court's Sun-Diamond decision speaks only to the
federal gratuity statute, the interpretive methods utilized therein,
around which we shape our discussion, are nevertheless instructive.
In contrast to our dissenting colleague, we believe that the Sun-
Diamond decision suggests a holistic approach to interpreting
statutes that regulate gift-giving, and that it counsels an inquiry
that extends beyond merely reading the word "any" to mean "some
particular." See Dissenting Opinion ("Diss. Op.") at 2.
15 See supra n.6.
16 Nothing in the language or structure of the Meat Inspection
Act limits its proscription to the giving of bribes, as opposed to
meat-related activities it covers, however, the Act's gratuity
provision is actually more expansive than the general gratuity
statute, as it seemingly can be triggered without reference to
a particular official act. The Meat Inspection Act lacks a
counterpart to the careful definition that the gratuity statute
gives the term "official act," the very statutory language upon
which the Sun-Diamond Court so heavily relied in requiring
a particularized nexus. In fact, the Act does not place any
restrictive definitional gloss upon what constitutes "the dis-
charge of any duty under the Act," allowing the ordinary
meaning of those terms to govern the interpretation. See
United States v. Espy, 145 F.3d 1369, 1371 (D.C. Cir. 1998) (a
"duty" is "something that one is expected or required to do
by moral or legal obligation") (citation omitted).
As our own Espy opinion indicates, the duties of the
Agriculture Secretary under the Meat Inspection Act are
manifold. See id. As part of the Secretary's general obli-
gations to protect the health and welfare of the consuming
public from unwholesome or adulterated meat, the Act directs
that the Secretary shall "make such rules and regulations as
are necessary for the efficient execution" of its provisions, 21
U.S.C. s 621, and shall cause the inspection, in accordance
with such rules and regulations, of all meat carcasses capable
of use as human food, see 21 U.S.C. s 604, the inspection of
all meat food products prepared for commerce, see 21 U.S.C.
s 606, and inspections of all establishments where meat is
slaughtered, salted, packed, or rendered. See 21 U.S.C.
s 608. The Secretary's duty to make all necessary rules and
regulations lacks the particularized focus of the term "official
act," whether or not the Secretary were to take certain
official acts in fulfilling this duty. These duties extend be-
yond the mere development and promulgation of food safety
regulations, and encompass an ongoing obligation to ensure
__________
gratuities, as our dissenting colleague appears to suggest. See
Diss. Op. at 3. While we have previously held that bribery requires
a defendant to act "corruptly," see United States v. Gatling, 96 F.3d
1511, 1522 (D.C. Cir. 1996), the Act speaks only of acting with an
"intent to influence," the scienter requirement associated with an
unlawful gratuity. See id.enforcement in conformity therewith. Accordingly, one could
unlawfully attempt to influence the Secretary in the discharge
of his broad-based duties without identifying any particular
policy then at the regulatory fore. The offender might seek
to ensure that his company's interests were addressed by
whatever decisions or policies ultimately moved up the agen-
cy's radar screen, or want simply to affect a pro-enforcement
or deregulatory tilt, and a more favorable attitude toward all
regulatees. We belabor these obvious points because they
illustrate the ways in which the Meat Inspection Act's gratui-
ty prohibition is more expansive, both substantively and
temporally, than the general federal gratuity statute under
the Supreme Court's Sun-Diamond decision. Given the
motivating force behind the Meat Inspection Act--i.e., a
congressional desire to address the outrageous sanitary con-
ditions documented in Upton Sinclair's book The Jungle--the
breadth of its gratuity provision is unsurprising. See Espy,
145 F.3d at 1371.
That said, the fact remains that Schaffer's trial proceeded
on the theory that section 622 of the Meat Inspection Act and
section 201(c)(1)(A) of the federal gratuity statute were co-
extensive. See Williams, 29 F. Supp. 2d at 6. The jury
instructions required the same link between the thing given
and an intent to influence a particular official action, here
either zero tolerance or safe handling labels, as they had for
the gratuities counts. Although we are inclined to believe
that the Meat Inspection Act contains a less rigorous intent
requirement than the federal gratuity statute, we additionally
believe that the prosecution presented evidence linking the
Russellville party with an intent to influence these specific
policies sufficient for a reasonable jury to have found Schaffer
guilty beyond a reasonable doubt under the more stringent
standard of the gratuity statute. Because our conclusion that
the evidence supports a finding of guilt under the gratuity
statute's intent requirement necessarily includes a finding
that a lesser burden would similarly be satisfied, we leave the
precise articulation of the Meat Inspection Act's intent re-
quirement to another day. Accordingly, we will assess the
verdict against the standard of the gratuity statute, the very
standard advocated and employed by our dissenting col-
league. See Diss. Op. at 2-3. As with the inaugural dinner,
we begin by asking whether a rational trier of fact could
conclude that Schaffer either provided or knowingly aided
and abetted Tyson Foods in bestowing the Russellville party
upon Secretary Espy and Ms. Dempsey. Assuming the
evidence supports that finding, we go on to ask whether a
rational jury could additionally have determined that the
thing of value was provided with the requisite intent to
influence Secretary Espy's actions on either zero tolerance or
safe handling labels.
On the basis of the evidence presented, a reasonable jury
could securely find that Schaffer participated in securing
Espy's attendance at the Russellville party. Viewing the trial
testimony through prosecutorial lenses, the chronology of
events proceeded as follows. In April of 1993 Don Tyson
sent Secretary Espy the printed invitation to his weekend
gala, along with a hand-written note that informed Espy of
both a pending invitation to an Arkansas Poultry Federation
("APF") meeting scheduled to overlap with the party and
Tyson's intent to provide transportation to and from Russell-
ville on the company jet. Schaffer received a copy of this
writing. See GX90. Roughly five days later, the APF Presi-
dent circulated a memorandum to members of the APF
Board indicating that Secretary Espy would be in Arkansas
on May 15th, clearly implying that Espy already intended to
attend the Russellville party before being invited to the APF
meeting. That same day, the Senior Vice President of the
APF drafted a letter inviting Secretary Espy to speak at the
May 15th meeting in Russellville. See 6/18/98 Tr. at 486-88;
GX91B; GX100. Rather than sending the letter directly to
Espy, however, he sent it overnight delivery to Schaffer.
Schaffer then arranged for its mailing and faxing to Espy.
See 6/18/98 Tr. at 535-38, 554; GX91A; GX91B; GX92;
GX155; GX156. The APF meeting, at which Secretary Espy
ultimately agreed to speak, provided an official reason for
Espy to be in Russellville the weekend of the Tyson affair.
Given the anomalous course of events, the jury could reason-
ably infer that the meeting, while legitimate, had nevertheless
been set up to provide Espy with official cover.
Schaffer's role in arranging Espy's attendance in Russell-
ville did not end there, as he had a series of communications
regarding the trip with Secretary Espy's USDA travel coordi-
nator. In response to her logistical questions involving the
Secretary's official itinerary, Schaffer stated that the all-day
APF meeting would involve some 150 people (rather than the
15-20 who came), see 6/18/98 Tr. at 491, that he would meet
Secretary Espy at the airport and escort him to the meeting,
that it would be followed by a dinner meeting to which the
Secretary was invited, that the Secretary would be overnight-
ing at the Tyson Complex, and that the Secretary would be
transported back to Washington on an APF charter plane.
Schaffer additionally provided a list of the other passengers
on that flight. See 6/18/98 Tr. at 558-70. With respect to the
transportation arrangements, Schaffer requested use of the
Tyson Foods corporate aircraft that transported Dempsey to
Russellville for the weekend, and that transported her and
Espy back to Washington that Sunday. See 6/17/98 Tr. at
318-20; GX103. Despite these extensive efforts, when subse-
quently questioned by an FBI agent, Schaffer denied know-
ing who had arranged for the Secretary or his girlfriend to
attend the Russellville party or to stay at the Tyson Complex.
In addition, he asserted that APF officials, rather than any-
one at Tyson Foods, had contacted Espy and arranged his
attendance at the APF meeting. See 6/22/98 Tr. at 1209-13.
On the basis of this testimony, a reasonable jury could find
that Schaffer not only helped to arrange Espy's APF speak-
ing engagement, but that he actively participated in securing
the attendance of the Secretary and his girlfriend at the
Russellville party.
Turning now to the more difficult question of intent, we
note that the independent counsel prosecuted the case under
a theory that corresponds to the third variant of our three-
part typology of gratuities offenses.17 See discussion supra
__________
17 Since a violation of the Meat Inspection Act, in contrast to the
general gratuity statute, additionally requires a link between the
pp. 13-14. In other words, the independent counsel sought to
establish that Espy's attendance at the party was secured
with the intent to induce the Secretary to propose, take, or
shy away from some future act with respect to either zero
tolerance or safe handling labels, or alternatively in the hope
that, when those particular issues moved to the regulatory
forefront, the Secretary would listen hard to, and hopefully be
swayed by, the Tyson Foods' proposals, suggestions, and/or
concerns. Again recognizing that proof of an actor's subjec-
tive motivation will likely require recourse to circumstantial
rather than direct evidence, see discussion supra pp. 16-17,
we believe that the independent counsel has presented suffi-
cient evidence to establish the requisite link.
The district court rejected the jury verdict on two separate
grounds, corresponding to the two identified official acts, each
of which we address in turn. First, the court noted that
although the Secretary had announced his intent to move
forward with the labeling initiative at his February 4th meet-
ing with industry representatives, he did not promulgate the
interim regulation until three months after the Russellville
party. See Williams, 29 F. Supp. 2d at 7. Once the proposal
had moved to the regulatory forefront in the aftermath of the
January 1993 E coli outbreak, however, we do not see how
the precise timing of its official publication undercuts an
inference that Tyson Foods hoped to influence its final form
through bestowing largess. The district court's conclusion,
echoed by our dissenting colleague, see Diss. Op. at 4, pre-
sumably picked up on Schaffer's argument that Tyson Foods
did not oppose the labeling proposal prior to its August
promulgation, and even then only objected to its stringent
timing requirements, not to its substance. But again, we do
not regard the timing sequence as negating a reasonable
inference of intent, particularly under the deferential stan-
dard we use in reviewing a jury's verdict of guilt. The
statute requires an intent to influence, not an attempt to
block or to eviscerate some particular official act. In fact, the
__________
favor and a policy that specifically affects meat, the prosecution
sought to make this connection as well.
economics of predatory practices instructs that larger compa-
nies may support and encourage stringent new regulations, as
the marginal cost of complying with a regulation will typically
be higher for small companies. See generally, Ann P. Bartel
& Lacy Glenn Thomas, "Predation through Regulation: The
Wage and Profit Effects of the Occupational Safety and
Health Administration and the Environmental Protection
Agency," 30 J.L. & Econ. 239 (1987). Additional regulation
can thus help to undermine competition, and this fact of
business life severs any necessary link between opposition
and influence. Since the requisite intent under the statute
can appear in many forms, we find it irrelevant under the
statute whether the party providing the gratuity hoped to
induce or to discourage an official act, or even to encourage
the recipient to adhere to the status quo.
With respect to zero tolerance, the district court concluded
that insofar as that policy related to meat, "[t]he policy had
already been implemented, on March 2, 1993, so the [Act's]
requisite 'intent to influence' that action could not have been
present in May." Williams, 29 F. Supp. 2d at 7. We do not
read the record the same way. While the generative "our
tolerance for fecal matter will be zero" memorandum had
been issued on March 2nd, the record indicates that FSIS
continued to develop and the USDA continued to implement
its pathogen control policy throughout 1993. Dr. Cross testi-
fied that FSIS worked on a policy of zero tolerance for meat
and poultry all during 1993, and that the policy was not ready
for presentation to the Secretary until November of that
year. See 6/17/98 Tr. at 466-67. Moreover, when Dr. Cross
left FSIS in 1994, his departure memorandum outlining pend-
ing issues listed several elements of the pathogen reduction
program for meat that had been originally introduced to the
public on February 4th and 5th.18 See GX120; GX116. Fi-
nally, whereas the district court emphasized that zero toler-
__________
18 Contrary to the dissent's suggestion, see Diss. Op. at 3 n.1, all
of the evidence we recount here involves the USDA's policy of zero
tolerance for meat. We are not concerned with, and in no way rely
upon, the course of the USDA's zero tolerance proposal for poultry.
ance applied only to cattle slaughter establishments, which
Tyson Foods had never owned, Dr. Cross's congressional
testimony illustrates that USDA's pathogen control policy
extended to processing plants as well, which Tyson Foods did
own. See GX116. In any event, regulations governing the
meat industry eventually affect all those in the business of
selling meat products, regardless of where they fall on the
stream of commerce linking the farm to the supermarket
shelf. Government initiatives that affect the cost of meat as a
raw material logically impact meat resellers like Tyson Foods.
In the absence of any direct statement by Schaffer or
Tyson Foods that Espy's attendance at the Russellville party
had been substantially motivated by an intent to influence the
Secretary, we assess the rationality of the jury's verdict by
examining the evidence before it. Our reading of the record
reveals that Schaffer and other officials at Tyson Foods had
extensive communications with the Secretary and his staff, in
each of which they sought to persuade USDA to shift a
pending policy in one direction or another. With respect to
the safe handling label issue alone, the prosecution introduced
a series of written communications seeking to sway the
USDA, each of which, in some form, had gone through
Schaffer. The jury had before it: (i) a letter from the Foods
Regulation Manager and the VP of Operations, Beef and
Pork Division at Tyson Foods to Secretary Espy, coupled
with testimony that Schaffer reviewed every such document
directed at government officials and the public, see GX130,
6/23/98 Tr. at 1290; (ii) a letter from Senator Dale Bumpers
(essentially drafted by Tyson Foods) to Secretary Espy and
to Vice President Gore, copies of which were simultaneously
sent to Schaffer, along with testimony regarding contempora-
neous communications between Schaffer and Senator Bump-
ers's office about the issue, see GX131, GX131A, 6/19/98 Tr. at
848-52, 6/23/98 Tr. at 1273-75; and (iii) a letter on the
labeling issue from Jack Williams to the point-man for the
White House with whom the Secretary was in close contact.
See GX136, GX138. In addition, the jury heard testimony
from George Watts, President of the National Broiler Coun-
cil, about an August meeting that he, Schaffer, and two others
had scheduled with Secretary Espy to discuss the labeling
issue. Watts additionally admitted to drafting a pre-meeting
memorandum wherein he communicated to the participants
the general impropriety of discussions between the Secretary
and industry representatives about regulations in the rule-
making stage, and the correlative need to tiptoe around the
issue. See 6/18/98 Tr. at 629-39, GX124. Finally, Patricia
Dempsey testified that she witnessed John Tyson confront
Secretary Espy about the labeling issue at a September 1993
reception, seeking to persuade him of the need to alter the
rule. See 6/22/98 Tr. at 1095.
Additional evidence strongly implied that Schaffer had
attempted to cover up the involvement of Tyson Foods in
Secretary Espy's trip to Russellville. Schaffer took a number
of further actions which collectively obscured the fact of
Espy's attendance at the party from other USDA officials.
For example, when communicating with Espy's travel coordi-
nator, he omitted to mention that the aircraft transporting
the Secretary belonged to Tyson Foods, describing it instead
as an APF charter. See 6/18/98 Tr. at 573-75. When the
USDA sought to reimburse the cost of Espy's transportation
and lodging, as required by agency policy, Schaffer directed
the APF to create phony invoices and allowed it to receive
payment for costs incurred by Tyson Foods. See id. at. 495-
502. Finally, Schaffer omitted Patricia Dempsey's name from
the passenger list of those traveling with the Secretary on the
corporate plane from Russellville, thereby obscuring the pri-
vate nature of the trip from Espy's travel coordinator. See
id. at 568, 570.
While admittedly circumstantial, we believe that this con-
fluence of testimony meets the standard of sufficiency. At a
minimum, the independent counsel's case: (i) identified spe-
cific policies of concern to the defendant and his employer;
(ii) that were pending, rather than merely inchoate, at the
time of the gratuities; (iii) about which the defendant and/or
his employer had timely communications with the recipient
public official; (iv) through which it made known its concerns,
recommendations, and the likely costs of compliance with the
policy in its then current form; (v) and that the official in
question was, at the time he received the gratuity, in a
position to influence the trajectory of the policies in question.
See United States v. Haldeman, 559 F.2d 31, 115-16 (D.C.
Cir. 1976) (in banc) (per curiam) ("Except in extraordinary
circumstances, criminal intent cannot be proved by direct
evidence; it is therefore not only appropriate but also neces-
sary for the jury to look at 'all of the circumstances' in
determining specific intent.") (citation omitted). Generally
speaking, when a gratuity prosecution has established each of
these elements, the jury can rationally decide the intent
question either way. While the jury could have accepted
Schaffer's defense, finding the gratuities to have been moti-
vated by a desire either to generate warm feelings towards
Tyson Foods or to satisfy Don Tyson's penchant for sur-
rounding himself with celebrities, our criminal justice system
leaves it to the jury to sort out the competing constructions of
the evidence.
B. Schaffer's Cross-Appeal
Having decided that the district court erred in granting
Schaffer's motion for a judgment of acquittal on the Meat
Inspection Act count, it becomes necessary to review the
court's conditional denial of Schaffer's alternative motion for a
new trial. Schaffer seeks a new trial on two separate
grounds, claiming that each creates sufficient doubt in the
integrity of the jury verdict to constitute reversible error.
Because we find each of the alleged grounds harmless under
the prevailing standard for assessing trial errors, we affirm
the district court's order and deny Schaffer's cross-appeal.
1. The Rule 608(a) Question
Schaffer challenges a series of rulings by the district court
which collectively precluded the defense from introducing
testimony regarding the government's grant of immunity to
both John and Don Tyson. During cross-examination, gov-
ernment witness John Tyson, who had been identified to the
jury as an unindicted co-conspirator and as Schaffer's boss,
testified that he and Schaffer had never discussed the possi-
bility of influencing Secretary Espy through largess, nor did
he ever think that Espy could be influenced thereby. See
6/19/98 Tr. at 948. Believing that these statements complete-
ly exonerated him, Schaffer sought to introduce the fact of
the Tysons' immunity to keep the jury from assuming that
John Tyson could be prosecuted were he to admit to having
discussions about influencing Secretary Espy. Unless cured
of this false presumption, Schaffer argued, the jury would
likely dismiss John Tyson's testimony on the grounds that he
had a strong incentive to prevaricate. The district court
excluded this line of questioning, concluding that it would
contravene Federal Rules of Evidence 608(a)'s proscription on
bolstering a witness whose credibility had not been subjected
to attack. In his motion for a new trial, Schaffer challenged
the court's construction of Rule 608(a), and alleged that it had
improperly and prejudicially kept relevant exculpatory evi-
dence from the jury. While the district court's interpretation
and application of Rule 608(a) are not without doubt, we find
the weight that Schaffer ascribes to the excluded testimony
even more dubious. Assuming arguendo that the court im-
properly excluded this testimony, we deny Schaffer's cross-
appeal because any error was clearly harmless.
Focused upon preventing the introduction of irrelevant,
time-consuming testimony, Rule 608(a) provides that:
The credibility of a witness may be attacked or sup-
ported by evidence in the form of opinion or reputation,
but subject to these limitations: (1) the evidence may
refer only to character for truthfulness or untruthfulness,
and (2) evidence of truthful character is admissible only
after the character of the witness for truthfulness has
been attacked by opinion or reputation evidence or other-
wise.
Fed. R. Evid. 608(a). The rule appears inapplicable, both
facially and structurally, to the testimony that Schaffer
sought to introduce. Turning to the language of Rule 608(a),
the existence of John and Don Tyson's immunity agreements
constitutes neither opinion nor reputation evidence, the only
two subjects mentioned therein. Moreover, as the rule
speaks in general terms of a witness's character for truthful-
ness or untruthfulness, it does not touch upon the separate
question of whether a generally truthful witness may have a
motive to lie in one specific instance. See United States v.
Lindemann, 85 F.3d 1232 (7th Cir. 1996) (distinguishing five
acceptable methods for attacking a witness's credibility, two
of which are attacking the witness's character for truthfulness
and demonstrating bias); 27 Wright and Gold, Federal Prac-
tice and Procedure s 6094 (1990) (same). As the Advisory
Committee Notes to Rule 608 explains, while evidence of a
witness's general character for honesty or integrity can pro-
vide de minimis support for a conclusion as to whether he is
testifying accurately on a particular occasion, the probative
value of such testimony will generally be outweighed by the
needless consumption of time involved in putting "good char-
acter" witnesses on the stand. See Fed. R. Evid. 608(a)
advisory committee's note. Accordingly, the Federal Rules
allow the introduction of opinion or reputation testimony to
attack a witness's credibility, but limit such good character
testimony to situations where the witness's veracity has al-
ready been specifically impugned. In contrast to a witness's
general character for truthfulness or untruthfulness, which is
largely peripheral to the facts at issue in a given case, the
question of a witness's potential bias is both particularized
and case-specific. The presence or absence of bias has
relevance because it speaks to whether a witness has an
interest in this case, or a particular affinity or dislike for this
party. See United States v. Abel, 469 U.S. 45, 51 (1984) ("A
successful showing of bias on the part of a witness would have
a tendency to make the facts to which he testified less
probable in the eyes of the jury than it would be without such
testimony."); United States v. Akitoye, 923 F.2d 221, 225 (1st
Cir. 1991) (if the cross-examiner may bring out facts tending
to show bias, "it follows that the cross-examiner can be
allowed some latitude, in an appropriate case, to bring out the
absence of bias-producing facts and circumstances, thereby
strengthening the credibility of a helpful witness"). In light
of its disparate focus, we do not see why Rule 608(a) would
apply.
Even if Rule 608(a) should not have been used to exclude
the fact of John and Don Tyson's immunity, though, any error
made by the district court in this case was harmless. When
reviewing non-constitutional trial error, we apply the stan-
dard articulated in Kotteakos v. United States, asking wheth-
er we can say "with fair assurance, after pondering all that
happened without stripping the erroneous action from the
whole, that the judgment was not substantially swayed by the
error...." 328 U.S. 750, 765 (1945). In so doing, we cannot
merely replicate our previous sufficiency-of-the-evidence in-
quiry; rather, we ask "even so, whether the error itself had
substantial influence" on the jury. Id.In this instance, looking at the record as a whole, we think
it evident that the district court's evidentiary ruling did not
have a substantial influence on the jury verdict. The jury
heard John Tyson's testimony, a portion of which allegedly
exculpated Schaffer, but apparently did not lend that portion
much credence. Had the jurors additionally learned that
John Tyson could not be prosecuted for any non-perjurious
testimony because of his immunity agreement, it is still
difficult to believe that their deliberations would have been
affected. John Tyson's credibility had already been called
into question repeatedly by contradictory testimony. For
example, he denied discussing the safe handling labels issue
with Secretary Espy at a September 1993 party, see 6/19/98
Tr. at 917, while Patricia Dempsey testified that Tyson had
confronted Espy there and requested greater flexibility with
the safe handling labels regulation. See 6/22/98 Tr. at 1095.
Tyson also disputed the proposition that his company had
been "concerned" about the labeling issue, see 6/19/98 Tr. at
919, despite the extensive Tyson Foods lobbying effort docu-
mented in the record. The fact that Tyson lacked a penal
motive to cover up the company's or his own attempt to
influence Espy would have done little, we think, to alter the
jury's assessment of his credibility. Since any admission that
Tyson Foods' future president had conspired with others to
influence the Secretary of Agriculture would have generated
a torrent of negative publicity, which itself would have been
highly damaging to the company's (and John Tyson's) busi-
ness interests, the jury had stronger reasons to be skeptical.
Finally, even assuming that an awareness of his immunity
agreement would have sufficiently buttressed Tyson's credi-
bility that the jury believed him, his testimony still did no
more than establish an expected negative. Given the pre-
sumptive expectation that corporate officials would not be so
brazen as to discuss some plan or scheme to influence the
Secretary openly, but would more likely proceed by winks
and nods, the mere absence of any conversations between
himself and Schaffer about such a conspiracy casts little if
any doubt upon the jury's determination that Schaffer had
acted with the requisite intent. All in all, then, we cannot
conclude that the jury would have been swayed in a different
direction solely by learning that Tyson testified under a grant
of immunity.
2. The Independent Counsel's Opening and Closing Argu-
ments
Schaffer also challenges a series of statements made by the
prosecution during its opening, closing, and rebuttal remarks,
each of which allegedly misstated the elements of the crimes
charged. On each occasion, Schaffer contends, the prosecu-
tion invited the jury to convict him for engaging in lobbying
activities alone, without finding the necessary intent to influ-
ence specific official acts needed for conviction under the
federal gratuity statute and the Meat Inspection Act.19
__________
19 In its opening remarks, the prosecution referenced Tyson
Foods' desire to "get cozy" with Secretary Espy four times. While
it directly modified this statement on two occasions by stating that
gifts "were given in order to get cozy so that they would influence
the Secretary of Agriculture in the performance of his duties," 6/16
Tr. at 100, 99, the independent counsel did speak only of "getting
cozy" during the other two. In its closing rebuttal statement, the
independent counsel also made the following remark:
What the defendants did here, we submit, should not be
tolerated. You will decide by your verdict what the standard
is. The defendants are guilty beyond a reasonable doubt of the
charges contained in the indictment.
The question is, do you want lobbyists for regulated industry
to give anything to an official that regulates your food supply
when so much is at stake?
Measuring the potential prejudicial effect of these allegedly
improper statements with reference to the entire proceeding,
as the Supreme Court instructed in United States v. Young,
470 U.S. 1, 11-12 (1985), we cannot say that Schaffer was
unfairly prejudiced.
To determine whether improper prosecutorial statements
prejudiced a defendant's right to a fair trial, this court
generally considers four separate factors. We examine: (i)
the severity of the misconduct; (ii) the measures taken to
cure the misconduct; (iii) the certainty of conviction absent
the improper misconduct, see United States v. Perholtz, 842
F.2d 343, 361 (D.C. Cir. 1988); and (iv) the centrality of the
issue affected by the error. See United States v. Gartmon,
146 F.3d 1015, 1026 (D.C. Cir. 1998). Reviewing the trial
record as a whole, as required by this fact-intensive inquiry,
we do not believe that the jury was substantially swayed by
the independent counsel's isolated missteps. In their opening
and closing remarks, both the prosecution and the defense
continually stressed to the jury the need to link the things of
value with an intent to influence Secretary Espy. See, e.g.,
6/26/98 Tr. at 100, 103, 115, 125, 130, 135; 6/25/98 Tr. at 1703,
1717, 1726, 1729, 1737, 1742, 1766. The district court did the
same in its instructions to the jury, repeatedly emphasizing
that Schaffer could not be found guilty of the offenses
charged unless he acted with the requisite intent to influence
the Secretary. See 6/26/98 Tr. at 1778-80, 1788. From start
to finish, this question of intent had center stage at the trial.
Because we have no doubt that the jury understood and
deliberated on the basis of the proper legal standard, we
cannot say that any of the statements in question had any
effect on the jury verdict, substantial or otherwise.
III. Conclusion
For the reasons set forth, we affirm the district court's
judgment of acquittal in part and reverse in part. Because
__________
See 6/25/98 Tr. at 1765-66. Defense counsel immediately objected,
and the court sustained the objection and instructed the jury to
disregard the statement.
we additionally reject the challenges raised in Schaffer's
conditional cross-appeal, we vacate the judgment of acquittal
on the Meat Inspection Act count, reinstate the jury verdict,
and remand for sentencing.
So ordered.
Karen LeCraft Henderson, Circuit Judge, concurring in part
and dissenting in part:
I concur in the majority's holding that the gratuity verdict
is not supported by the evidence but I disagree with its
reversal of the district court's judgment of acquittal on the
Meat Inspection Act count. I believe, like the district court,
that the government failed to adduce evidence to support a
finding of intent to influence discharge of a specific duty
under the Meat Inspection Act, as required by the United
States Supreme Court's decision in United States v. Sun-
Diamond Growers of Calif., 119 S. Ct. 1402 (1999). There-
fore, I would uphold the district court's judgment of acquittal
on each count of conviction.
Writing on a clean slate, I would propose for both section
22 of the Meat Inspection Act (which criminalizes the giving a
thing of value to a government official "with intent to influ-
ence said [official] in the discharge of any duty provided for in
[the Meat Inspection Act]," 21 U.S.C. s 622) and for the
gratuity provision of 18 U.S.C. s 201(c) (which criminalizes
giving or receiving a thing of value to or by a public official
"for or because of any official act performed or to be per-
formed by such public official," 18 U.S.C. s 201(c)) a much
less rigorous showing of intent than the Supreme Court
imposed on the gratuity provision in Sun-Diamond. Never-
theless, given the Court's strict construction of the gratuity
provision there, I do not see how we can interpret section 22
more leniently here.
In Sun-Diamond, the Supreme Court concluded the
phrase "for or because of any official act" in the gratuity
provision "means 'for or because of some particular official act
of whatever identity'--just as the question 'Do you like any
composer?' normally means 'Do you like some particular
composer?' " 119 S. Ct. at 1407. The Court acknowledged
that "[i]t is linguistically possible, of course, for the phrase to
mean 'for or because of official acts in general, without
specification as to which one'--just as the question 'Do you
like any composer?' could mean 'Do you like all composers,
no matter what their names or music?' " Id. The court
stated, however, that "the former seems to us the more
natural meaning." Id. Applying the same approach to sec-
tion 22 of the Meat Inspection Act, I believe the "more
natural meaning" of "in the discharge of any duty" must be
similarly construed to be "in the discharge of some particular
duty of whatever identity." Although, as the majority ob-
serves, the Meat Inspection Act contains no definition of
"duty" comparable to section 201's definition of "official act,"
on which the Sun-Diamond Court relied to buttress its
interpretation of the gratuity provision, we must still, I
believe, adhere to what the Supreme Court has indicated the
"natural meaning" of "any duty" is. That this meaning is the
required one under Sun-Diamond is reinforced by the
Court's treatment there of the bribery provision in 18 U.S.C.
s 201(b)(1)-(2), which--in language similar to that of section
22 of the Meat Inspection Act--proscribes the giving
(s 201(b)(1)) and receiving (s 201(b)(2)) of a thing of value
"with intent, inter alia, 'to influence any official act' (giver) or
in return for 'being influenced in the performance of any
official act' (recipient)." 119 S. Ct. at 1406 (quoting 18 U.S.C.
s 201(b)(1), (2)).
In Sun-Diamond, the Supreme Court compared section
201(b)'s bribery provision with section 201(c)'s gratuity provi-
sion and concluded that "[t]he distinguishing feature of each
crime is its intent element." 119 S. Ct. at 1406. The Court
noted that for a violation of the bribery provision, "there must
be a quid pro quo--a specific intent to give or receive
something of value in exchange for an official act," 119 S. Ct.
at 1406 (emphasis original), while the gratuity provision "re-
quires only that the gratuity be given or accepted 'for or
because of' an official act." Id. (emphasis added). The Court
took for granted that the more stringent quid pro quo intent
requirement for bribery required a connection between the
thing given and a specific act or omission by the public
official. The only disputed question in the Court's eyes was
whether the same connection was required to satisfy the more
lenient intent standard of the gratuity proscription in section
201(c). The Court determined that it was, admonishing that
"a statute in this field that can linguistically be interpreted to
be either a meat axe or a scalpel should reasonably be taken
to be the latter." 119 S. Ct. at 1410. We must likewise,
therefore, treat section 22 as a scalpel which can excise only
the most precisely delineated bribes. If the gratuity provi-
sion requires proof of a "link" between a bribe and a particu-
lar act, as Sun-Diamond held, the intent language in section
22 must also be construed to mandate a link between the
thing given and discharge of a specific duty the giver has
attempted to influence. Applying the Sun-Diamond stan-
dard, I cannot find evidence to support the required link
between the May 1993 feting of Agriculture Secretary Espy
in Russellville, Arkansas and an intent on appellee Schaffer's
part to influence either the "zero tolerance" policy or the safe
handling labeling policy for meat.
First, there is nothing in the record to connect the Russell-
ville festivities to the government's "zero tolerance" policy--
except for the bare facts that Tyson Foods was a business
that might be affected by such a policy and that the policy (or
its revision) may have been actively under consideration by
the Department of Agriculture at the time.* This coincidence
does not, as Sun-Diamond requires, "prove a link" between
the policy and the party. See Maj. Op. at 19 (concluding that
"an awareness by a regulated entity that the USDA had been
developing a new pathogen control policy" is not "definitive
link" under gratuity provision). There is nothing to suggest
that at the time of the Russellville weekend Tyson Foods was
concerned about the policy in any specific way, much less that
it invited Secretary Espy with the intent to influence the
__________
* As the majority notes, a zero tolerance policy for meat had
already been adopted in February 1993. See Maj. Op. at 5, 18. To
the extent the evidence shows an intent to influence a zero tolerance
policy for poultry, it cannot support a violation of section 22 of the
Meat Inspection Act which criminalizes only gifts to influence the
discharge of a duty under the Meat Inspection Act. Poultry
labeling is not a duty under the Meat Inspection Act, which governs
only "meat and meat food products," see 21 U.S.C. ss 602, 603,
defined as "any product capable of use as human food which is
made wholly or in part from any meat or other portion of the
carcass of any cattle, sheep, swine, or goats," id. s 601(j) does not
govern poultry.
policy--whether intending to "induce" or "discourage" action
on it or to "encourse [him] adhere to the status quo." See
Maj. Op. at 27. As for the safe handling labeling, the
evidence the majority cites to show Tyson Foods was con-
cerned about the policy relates to the August 1993 promul-
gation of emergency labeling regulations, to take effect 60
days later, and Tyson Foods' opposition to their expedited
implementation. See Government Exhibits 124, 130, 131,
131A, 136, 138; Trial Tr. at 625-35, 848-52, 1095, 1273-75.
There is nothing to suggest that Tyson Foods was aware of
the expedition--or that it was even planned--at the time of
the Russellville festivities in May 1993.