*1 America, STATES UNITED
Appellant/Cross-Appellee, III, SCHAFFER, R.
Archibald
Appellee/Cross-Appellant. 98-3123, 98-3126.
Nos. Appeals, States Court of
United Circuit.
District of Columbia 12, 1999. May
Argued 23, 1999. July
Decided Sept.
As Amended *3 Ray, Independent Deputy
Robert W. Counsel, appel- for argued cause on the him lant/cross-appellee. With Smaltz, Indepen- briefs were Donald C. Counsel, Kagay, M. Chief dent Charles Frentzen, Counsel, Wil Adrienne Appellate Guichet, Joseph P. Associate R. Baron Independent Counsel. Jeffress, Jr., argued the H.
William With appellee/cross-appellant. cause for Caldwell, R. were Joe him on the briefs Heavner, Jr., Jr., R. Vinik R. Grant James Woody Bassett. WALD, SILBERMAN Before: HENDERSON, Judges. Circuit by Circuit Opinion for the Court filed Judge WALD. concurring
Opinion part Judge dissenting filed Circuit HENDERSON.
WALD, Judge: Circuit a decision appeals The States United Archibald granting court the district judgment motion for post-trial Schaffer’s found Schaffer After acquittal. Act, violating the guilty of Meat § and the federal 21 U.S.C. 201(c)(1)(A),the court statute, 18 U.S.C. grounds the verdict on set aside insufficient presented jury had been guilt support a verdict evidence to United either count. (D.D.C.1998). Williams, Schaffer, F.Supp.2d Espy. then the Director Me- dia, conditionally court de- Public and Subsequently, the Governmental Affairs for Foods, trial, target motion for a new became a in this in- nied Schaffer’s vestigation alleged from which has filed a his role transmit- decision ting things employer of value from his cross-appeal. agree conditional While we Secretary. with the district court’s determination that cannot support the evidence conviction inquiry counsel’s into giving gratuity, an unlawful we find relationship between sufficient in the record from evidence Secretary. Espy focused a chain of juror which a con- reasonable could have events that date back to the transition cluded that Schaffer violated the Meat In- period preceding William Jefferson Clin- Therefore, affirm spection Act. inauguration ton’s as President. In De- *4 in district court’s decision and reverse 1992, meeting requested by cember of at a part. additionally reject chal- We Congressman Espy Tyson then with Don lenges raised in Schaffer’s conditional Tyson, respectively and John the Chair- cross-appeal. Accordingly, we vacate the man of the Board and the President judgment acquittal Inspec- of on the Meat Foods, Beef and Tyson Pork Division at count, tion Act reinstate the verdict Congressman communicated his desire count, on that sentencing. and remand for qualifications and his to become the Secre- tary Agriculture. of subsequently He was
I. BACKGROUND position nominated to that on December 24,1992, 22, 1993, evidentiary disputes January and sworn in on ap- these taking major office in the peals public midst of a must be evaluated in their surround- context, health crisis. An E ing outbreak of coli much-publicized backdrop (“E coli”) 0157:H7 in the Pacific North- that contains more than a hint of Washing- west, apparently stemming from under- ton theater. Because consideration of meat, cooked hamburger had caused the whether the verdict has sufficient evi- death of three and generated children ill- dentiary underpinnings necessarily is fact- ness six hundred other individuals. intensive, we set out the relevant incidents Department Agriculture Since the of has in some detail. charges The criminal ultimate statutory responsibility for the brought against Archibald Schaffer integrity of the supply, nation’s food in- (“Schaffer” “defendant”) or the trace back cluding authority regulate both the allegations illegality when of were poultry and industry, the meat the E coli against then-Secretary first levied Agri- of outbreak was a major impor- matter of (“Secre- Alphonso culture Espy Michael Department. tance within the tary Espy,” “Espy,” “Secretary”). or the General, On application Attorney response concern, In public Secre- special appointed division of this circuit tary Espy and the USDA announced a Donald C. Smaltz counsel series of initiatives and new regulations granted authority and him the to investi- designed safety. to enhance food These gate Secretary Espy whether had violated policies were preventing directed at con- by accepting gifts federal criminal law tamination and instructing public as to from individuals corporations with busi- proper handling procedures for meat before, regulated by, ness the United poultry. and Along with other affected Department Agriculture companies, participated in lobby- (“USDA”). Espy, See In re 145 F.3d 1365 ing Secretary Tyson on behalf of (D.C.Cir. Div.1998). Spec. Along with Foods, in disseminating company’s entities, some regulated other respect views with to pending ongoing Foods”), Foods (“Tyson International regulatory During pe- matters. this same largest producer world’s poultry prod- time, Schaffer, riod of on behalf of ucts, ultimately Foods, came under official scruti- participated in providing items of ny for generosity Secretary towards value Secretary Espy. According period, During gift-giving USDA of-
indictment, gratui- these provided stages pro- at various attempt to influence Secre- ficials were in an ties matters of respect developing implementing actions with ini- tary’s cess pending then be- Tyson Foods seriously interest to impact tiatives that would fore USDA. February business of Foods. On accompanying while gift- alleges pattern The indictment fact-finding mission to the area af- official eleva- predates Espy’s giving outbreak, the E coli fected Dr. Russell Agriculture Secre- position tion to the (“Dr. Cross”), the Administrator of Cross January of through and continues tary Safety others, Food Ser- Tyson USDA’s Through Schaffer (“FSIS”), outlined to an enthusiastic things of val- vice following provided closely policies Secretary Espy and those a series of de- ue to (1) early January safety with him: of meat and signed affiliated to enhance the Espy, girl- his Tyson Foods hosted poultry products on which FSIS had been Dempsey (“Dempsey”), and friend Patricia Secretary announced his working. The $1,500 per at the Espy’s siblings two along to move forward the lines intention Washington at the inaugural dinner person at a meet- policy proposals of Dr. Cross’s Hotel, each a seat providing Sheraton industry the fol- ing representatives *5 pur- tables Tyson the three Foods’ one of 5, 1993, Dr. day. February lowing On (2) In evening. April of chased for the presentation made a similar before Cross 1993, Secretary Espy Tyson Don invited subcommittee, announcing a ser- a Senate birthday weekend-long to a Dempsey and fur- prevent initiatives intended to ies of Tyson Management Foods party at Dr. poisoning. ther outbreaks of food Complex”) in Training Complex (“Tyson approach a to outlined “Two-Track” Cross (the Russellville, “Russellville Arkansas presence pathogens eliminating the the invita- Espy accepted When party”). 1, poultry products. and Track meat tion, transpor- for their arranged Schaffer maximizing performance of aimed at jet.1 Tyson corporate a Foods tation on methods, then-existing inspection involved Secretary party attended the with Espy initiatives. In- implementation of six entertained Dempsey, they at which were six, among proposed FSIS to cluded musicians, and King B.B. and other by mea- its detection and control enhance Tyson Com- spent night then sures, quantitative analy- risk develop (3) 1993, Ty- John September of plex. sis, technologies encourage the use of of, Dempsey and recom- son advised pathogens, and to increase reduce scholarship apply for mended she practices food awareness safe consumer Founda- Tyson available from the money on how disseminating information through ultimately received a Dempsey tion. poultry products. to handle meat best (4) $1,200 scholarship. On Foundation 2, stage was more Track which at Secretary Espy and January Track called for a revo- than amorphous Cowboys- Dallas Dempsey attended the safety programs. lutionary redesign of game guests as Bay playoff Packers Green 1993, the USDA continued Throughout Tyson. Tyson purchased Foods of Don policies Track 1 on two of the work ticket, arranged car and Dempsey’s plane First, Tyson Foods. great interest Espy and transportation for limousine implemented plan for refined and FSIS Tyson Dempsey, provided seats reduction, which even- an effort pathogen skybox.2 Foods participate in Although Schaffer did not Washington 2. Dempsey from 1. While flew value, things Secretary providing the last two jet, Foods Russellville on the lar- Tyson Foods’ total Mississippi, heard this evidence of separately where Espy came Williams, against gess Jack of the case ad- delivered two commencement he had co- lobbyist and Schaffer’s Dempsey for Secretary Espy dresses. Both company jet. defendant. Washington on the returned to a fifteen indict- separate name “zero tolerance.”3 counts of count tually acquired the initially January 15, focused Together attention ment on with Although its Williams, meat, handling lobbyist of which improper co-defendant Jack outbreak, the E coli Foods, charged FSIS generated the indictment formulating process was also in the defraud the conspiracy pathogen program control “zero tolerance” United States of the honest services Second, worked on de- poultry. FSIS in violation of Espy, 18 U.S.C. veloping program a consumer education 371; charged § was also with two poultry all apply that would to meat fraud, counts wire violation of 18 products. effort culminated in an This 1343, 1346; pro- §§ U.S.C. two counts of mandating the use emergency regulation viding gratuities, unlawful in violation of 18 handling of so-called labels” on all “safe 201(c)(1)(A); and one count of U.S.C. products. Intended to not-ready-to-eat Act, violating Inspection the Meat awareness, heighten consumer these labels (the “Act”). § 622 The indictment U.S.C. handling would contain care and instruc- additionally alleged that Schaffer had com- designed posed tions to eliminate the risk fraud, mitted mail in violation of 18 U.S.C. pathogens. food-borne Announced §§ 1346.4 The district court dis- 11, 1993, August missed four of the seven counts at the later, officially promulgated days five prosecution’s close of the case-in-chief. emergency required interim rule trial, Following completion eight-day of an USDA-approved place labels be within remaining against the five counts Schaf- sixty days. industry After an intense lob- fer—one under the Meat Act bying campaign coupled White House providing and two for gratui- unlawful intervention, Secretary Espy ultimately jury. ties—were submitted to the Schaf- delay agreed implementation guilty fer was found on two of these *6 emergency regulation, pushing the date for counts, violating Inspec- first for the Meat 15, compliance full April back to 1994. conjunction in Secretary tion Act5 Espy’s par- In attendance at the response independent to the counsel’s Russellville ty, and investigation violating into this concatenation of second for the federal events, grand jury through providing a federal the District statute6 tickets of Columbia indicted on inaugural seven dinner. policy apparently acquired 3. directly indirectly, any this nick- or to ... officer or 2, name from a March 1993 employee memorandum of the United States authorized to Deputy that the Administrator of FSIS sent to perform any prescribed by of the duties this establishments, slaughter requiring cattle subchapter by regulations or the rules and any them to trim off beef contaminated with any money thing of the or other respect value, fecal matter. With nation, to such contami- of with intent to influence said ... concluded, policy the directive “our employee officer or of the United States in ("Tr.”) Transcript will be zero.” See 6/\l/9S discharge any duty provided of for in at 433-34. subchapter, guilty shall be deemed of a and, thereof, felony, upon conviction shall charged Jack was also Williams with two $5,000 punished by be a fine not less than making counts of false statements to federal $10,000 by imprison- nor more than agents § 18 violation of U.S.C. year ment not less than one nor more than guilty found on each. Because Williams has years. three appeal withdrawn his from the district court’s denying acquittal decision his and new trial 201(c)(1)(A) provides § any- 6. 18 U.S.C. motions, our discussion focuses on Schaffer one who solely pro- alone. We mention Williams provided by otherwise than is law for the complete portrait vide a and accurate of the proper discharge duty of official ... direct- proceedings before the district court. offers, ly indirectly gives, promises or or provides:
5. 21 official, U.S.C. 622 anything any public of value to for- firm, official, Any person, corporation, any public person or or mer or selected to be firm, official, agent employee any person, public of for or because of offi- offer, corporation, give, pay performed performed who shall cial act or to be
839
Williams,
dinner,”
F.Supp.2d
29
be
subsequent Rule
Upon the defendant’s
acquittal,
E coli had first been identified as
judgment
motion for a
cause
29
jury’s verdict on
deadly
aside the
poisoning
district court set
food
cause
jury
Acknowledging that the
counts.
only
day.
both
As for the
outbreak
earlier
an
support
sufficient evidence
count,
had heard
court
Inspection
Meat
Act
simi
given, or
had either
inference
of the two
larly concluded
neither
giving
things
aided and abetted
provide
requisite
nexus
policies could
Espy, an essential ele
value
party;
with the Russellville
each was dis
statutes,
criminal
under each of the
ment
In
qualified
temporal
reasons.
no
concluded that
the court nevertheless
view, zero tolerance had ceased to
court’s
could have concluded
rational trier of fact
a live issue for meat more than two
had acted with the
that Schaffer
gala,
Ty
months before the weekend
occasion. See
intent to influence on either
objection
yet
Foods had
to voice
son
Williams,
F.Supp.2d at
v.
29
United States
la
regulation mandating
handling
safe
decision in
Using this court’s
United
6.7
Accordingly,
See id. at 7-8.
bels.
v.
Growers
Cali
Sun-Diamond
Rule 29 motion
granted
court
Schaffer’s
(“Sun-Diamond
(D.C.Cir.1998)
fornia,
841
rejected
gratuity provision
elaboration and the
has
Supreme
The
Court
gift.
not,
provides
illuminating
the former
an
contrary
statute as
reading
gratuity
of
id.,
text,
backdrop against
begin
which to
our inter
place
see
its
language
of its
pretive
prohibitions
task.
two
The
differ
larger statutory
regulatory
within the
First,
respects.
in two fundamental
brib
integrity
pub-
governing
framework
ery requires
quid pro quo,
a
and accord
officials,
congressional
intent. See
lic
ingly
having
two-way
can be seen as
a
view,
In the Court’s
id. at 1408-09.
is, bribery typically
nexus. That
involves
language
of’
nat-
operative “for or because
an intent to affect the future actions of a
urally
par-
means “for or because
some
public
through
official
giving something of
identity,”
act
whatever
ticidar official
value,
receipt
thing
of that
of value
added),
requires
(emphasis
id. at 1407
then motivates the official act. See Sun-
link
“prove
a
between a
government
I,
gratuity,
Diamond
A
138 F.3d
966.
public
a
thing of value conferred
contrast,
by
requires only
one-way
nex
act’ for or
specific
and a
‘official
official
us;
gratuity guideline presumes
“the
given.”
which it was
Id. at
because of
gives
situation
which the offender
might have
1411. Since Sun-Diamond
”
attaching any
gift
strings....
without
gifts
any
lacked
been convicted for
Mariano,
United States v.
983 F.2d
with a
official act but
nexus
(1st Cir.1993).
See also United
Secretary’s
were instead motivated
Brewster,
States v.
506 F.2d
status,
the Court felt no need to
mere
(D.C.Cir.1974) (“the briber is
or
the mover
degree
proof necessary to
explore the
act,
producer of
official
the official
but the
government
fink or how the
show the
gratuity
given might
act for which the
is
go
establishing
presence.
about
might
gratuity,
have
without the
al
been done
guidance
lack
Given
though
gratuity
produced
was
because
on the amount and kind of evi
the Court
act”).
of the official
necessary to establish a nexus with
dence
act,8
an official
we look to the statute itself.
provisions additionally
The two
dif
resides within a
pertinent
language
The
Bribery
is
temporal
fer
their
focus.
pro
§
larger provision,
future-oriented,
18 U.S.C.
entirely
gratuities
while
receipt
and the
of both
giving
scribes the
looking.
can be either forward or backward
illegal gratuities.
As we rec
bribes9
Campbell,
843 role, sought to minimize Schaffer’s than defense ascribe an intent on the basis of the government’s testimony, taken as a circumstances surrounding the defendant’s whole, See, supports a conclusion that e.g., actions. United v. States Wood participated providing inaugu- ward, (1st Cir.1998) the four 46, (in 149 F.3d 57 Secretary Espy. ral tickets to assessing whether sought defendant to in acts, fluence official “[t]he was enti dispute evidentiary The core on the tled to infer the defendant’s intent from nexus, however, sufficiency of the cannot actions, the circumstances surrounding his disposed easily. be of as Because of its indirect, direct, as opposed to evi subjective focus on the motivation behind dence”) (citation omitted); Chedick v. it largess, Foods’ necessitates a Nash, (D.C.Cir.1998) 151 F.3d more In assessing extensive discussion. (despite smoking gun, absence of jury enti sufficiency presented of the evidence tled to infer intent to defraud from circum as to whether acted with req evidence); stantial United States Caste uisite intent to a particular influence offi lanos, (D.C.Cir.1984) 731 F.2d act, cial begin recognition we with the (“no legal distinction is made cir- between any attempt to reduce the stat cumstantial and direct evidence in deter- ute’s nebulous “for or lan because of’ mining whether sufficient sup- evidence guage into a more concrete formulation verdict”). ports the will necessarily imperfect. When faced After an extensive examination of the competing explanations spe for some circumstances conduct, surrounding provision cific conduct which could be either tickets, inaugural say we cannot innocuous depending upon or illicit the trier of fact involved, reasonably could have particular motivation inquiry requisite found the intent to influence be- rarely will be clean or neat. Both common yond a reasonable doubt. The evidence practical experience, sense and each of presented was far meager support too jury, we ascribe to the instruct that such a conclusion. In support argu- of its rarely human beings single pur act for a contrary, ment to the Rather, independent pose activity alone. typi is more points counsel multi-causal, following trial testi- cally and directed towards (i) mony: regulated entity, as a achieving several rather than a single routinely had matters of interest Accordingly, end[s]. we do not view the (ii) USDA; before the FSIS had question of intent the Manichean terms measures, begun developing safety new in- defense, of the prosecution and the focus cluding zero handling tolerance and safe ing instead the more realistic and (iii) labels; a senior scientist at probative question of whether the acts Foods, Brunton, Dr. Ellis knew that the question substantially, were or in large developing had been pathogen USDA new requisite motivated intent to policies prior control E caveat, coli out- Secretary. influence the aAs final (iv) break; generally Dr. Brunton kept note as with most cases in which issue, pending regulatory Schaffer abreast of de- defendant’s state of mind is at may impossible velopments impact Tyson be near to establish the (v) Foods; through mens rea the E coli outbreak height- direct evi dence. In the ened USDA’s interest in both toler- absence zero labels, contemporaneous handling statement or other docu ance and safe resulting subjective mentation of the policies defendant’s the announcement of new with re- motivation, the trier fact can spect do no more Accordingly, although each.11 argument, failing satisfy good exception At oral counsel cause Industry additionally referenced the Texas Food Administrative Procedure Act's notice opinion, F.Supp. requirement. soc. v. USDA and comment U.S.C. As 256 (W.D. Tex.1993), 553(b). wherein the district This had been decision introduced defense, enjoined court had during enforcement of the safe into evidence Jack Williams’s handling emergency regulation portion labels interim and his counsel had read a of it to the *11 is out of the E coli outbreak the dis- Once entirely support the does not record an awareness that remains is all picture, no that was “[t]here conclusion court’s trict had entity that the USDA aby regulated in anybody or that Mr. evidence Schaffer control pathogen a new developing anything been anticipated or Foods knew Tyson the inferential opinion, In our policy.12 la- handling or safe tolerance zero about this separating chasm dinner,” the leap across inaugural of the the' time bels at conclusion— the 7, premise from it cannot Williams, still F.Supp.2d intended, a beyond were that the tickets Acknowledging verdict. guilty the support doubt, pro- to induce indepen- reasonable by the highlighted the evidence take, away from some action shy pose, or following counsel, note the we also dent tolerance, alternatively to en- First, on zero Tyson Foods testimony. undisputed sug- proposals, Foods’ Tyson din- sure that to the three tables its purchased concerns were gestions accorded the date and/or ner before December scrutiny be considered special Espy’s announced President Clinton which —cannot Supreme The breadth Agriculture the position reasonable. appointment opinion with re- name, Court’s Sun-Diamond Second, well Espy’s as Secretary. official identifying a ap- spect siblings, and girlfriend of his as those here, necessity over cre- spill act 1993 memorandum must January pears on definitive link need for more ating final the lists drafted To hold prosecution provided. than the inaugural dinner. assignments table for any time a mean that would E oc- otherwise coli outbreak Since See GX87. any in- aware of regulated entity became January, in the middle of curred sometime could proposal government choate apprised USDA did not become and interests, pro- subsequently affect hamburger its actual cause—contaminated to a relevant something of value 18th, day vided January meat—until official, to violate the it could be held dinner, subsequent USDA’s inaugural in event that the in- statute in zero tolerance heightened interest in a more later proposal appeared choate not have moti- handling safe labels inferential form. Were the concretized Espy, invitation extended vated the to in- to an intent leap this scenario January 15th. from necessarily predated which reasonable, we would fluence considered February 4th that Secre- until It not was reading in revive the status-based effect industry representatives tary Espy briefed so the Court statute initiatives. proposed on his non-highlighted language sepa- this In a considered jury. at 1573-74. Tr. Schaffer, opinion, quotes assessing against the court the case even of that in rate did, Policy Di- "Background” and "New language does assuming not rule the USDA’s interim sections of rection” proposition which the support inde- Register. See 58 published the Federal Simply put, pendent counsel cites it. There, 1993). 43,478 Fed.Reg. (August "agency vague temporal offi- reference "[a]gency [sic] official USDAnoted that handling advocating mandatory safe cials]” began January to advocate their early January” "early is not suffi- instructions mandatory writings that safe speeches handling USDA had in that the fact cient to establish labeling meat on the instructions promoting program officially initiated necessary compo- products poultry was labels, Tyson handling alone that let safe ill- program to combat foodborne of a nent writings privy relevant been to the Foods had 43,481, quoted Food in Texas Id. at ness.” speeches, time when before the pas- Industry, at 258. From F.Supp. this inaugural tickets to Secre- Foods offered language completely sage, unrelated tary Espy. opinion introduced on had been behalf, independent al- counsel Williams’s leges presented any not evidence was jury could infer that that the Foods, Schaffer, opposed was were aware of the USDA’s actually aware of the anticontamination at the time of to act on issue intent inaugural February handling prior to the safe initiatives skeptical we are dinner. While Secretary Espy. meeting 4th assertion that counsel’s rejected count, *12 roundly gratuities Sun-Diamond. We the core of dispute at run. any balk such end centers around prosecution whether presented sufficient evidence for a reason- 2. Inspection The Meat Act and the able that conclude Schaffer acted Birthday Party Russellville requisite with the any intent to influence of additionally guilty found of Schaffer was Secretary’s duties under the Meat In- violating anticorruption provision of spection Act.
the Meat Act in Inspection connection with Again, we first address a preliminary in securing his role the attendance of Sec- issue of statutory construction. With re retary Espy girlfriend Ty- and his at Don spect intent, the language May party. son’s 1993 Russellville Once Inspection of the Meat Act differs in mate again, our assessment of the verdict’s evi- ways rial from that of the federal gratuity dentiary sufficiency begins with the statu- statute. Whereas the Meat Inspection Act tory language. expressly requires an “intent to influence §
In part, discharge any Act,” relevant U.S.C. 622 the of duty under the provides that: an gratuity unlawful requires that firm, thing given of value be
Any person,
“for or because
corporation,
any
or
or
of
any
firm,
performed
official act
agent
employee
any person,
per
or
or to be
or
formed.” While
corporation,
give, pay,
linguistic
who shall
this
or
distinction
offer, directly
might appear
or
minor
indirectly,
any
...
when viewed in iso
lation,
officer
employee
place
provisions
United States
these two
perform any
authorized to
occupy
respective
of the duties
within their
statutory
prescribed by
subchapter
this
...
magnifies
schemes
the textual
difference
value,
money or
thing
other
with in-
important respects.
Conroy
See
v. Anis
tent to
said ...
officer or em- koff,
507 U.S.
113 S.Ct.
influence
ployee
(1993) (“the
of the United States in the dis- L.Ed.2d 229
meaning of statu-
charge
any duty provided
in this
not,
tory language, plain
depends
subchapter,
guilty
context”).14
shall be deemed
of a
In its
opinion,
Sun-Diamond
felony....
emphasized
Court
the structure of the
statute,
gratuity
added).
focusing upon
explicit
(Emphases
gratui-
Similar to the
given
statutory
definition
term “official
ties prohibition, a violation of this statute
act” and
consequences
logically
requires
presence
separate
three
(i)
followed from
particular wording.
elements:
the defendant must have
di-
(or
The need for an
link
rectly
indirectly
explicit
with a
given
aided and
(ii)
of);
directly
act
giving
statutory
abetted the
flowed
from this
lan-
thing
of value
(iii)
official;
guage,
gratuity provision’s
to a covered
as the
with the intent to
“insis-
act,’
influence
tence
an
discharge
duty
carefully
official
‘official
de-
fined,15
under the Meat
Act.13
...
[required]
The Act
some
—
clearly applies
Tyson Foods,
as its
official act be
proved.”
Beef
identified and
-,
and Pork Division
eight
accounted for
at
U.S.
S.Ct.
1407.
percent
ten
of its overall business. See
limiting principle,
absence
Tr. at 910. As with the unlawful
recognized,
Court
statute
cattle,
13.
apply
dissenting
The terms of the Act
colleague,
to all
we believe that the Sun-
swine,
horses, mules,
sheep,
goats,
and other
suggests
ap-
Diamond decision
a holistic
equines,
products
and to meat
derived there-
proach
interpreting
regulate
statutes that
§§
from. See 21 U.S.C.
603-624.
gift-giving,
inquiry
and that it counsels an
beyond merely reading
that extends
the word
Although
the Court’s Sun-Diamond deci-
"any”
particular.”
to mean "some
See Dis-
speaks only
sion
to the federal
stat-
("Diss.
senting Opinion
Op.”) at 854.
ute,
therein,
interpretive
methods utilized
discussion,
shape
around which we
our
are
supra
nevertheless instructive.
In contrast
to our
15.See
n. 6.
and wel-
obligations
protect
health
much of the
displace
unwittingly
would
un-
re-
consuming public
administrative
statutory and
fare of the
elaborate
meat,
the enrichment
the Act
regulating
or adulterated
gime otherwise
wholesome
id.
at 1410.
“make
public
officials.
shall
directs that
neces-
as are
regulations
such rules
Inspec-
the Meat
comparison,
way of
By
pro-
of its
efficient execution”
sary for the
having both a more
be seen
tion Act can
cause
visions,
and shall
On
focus.
21 U.S.C.
expansive
and more
limited
*13
hand,
of its
with such
scope
gratuity
the
in accordance
inspection,
the
the one
narrow
by the
carcasses
is circumscribed
of all meat
provision
regulations,
rules and
it operates.
which
upon
food,
see
class of individuals
21
human
use as
capable of
only two
definition,
covers
statute
By
the
all meat
inspection
§
of
U.S.C.
duties
officials
categories
persons:
commerce, see
products prepared
food
Act,
those
and
Inspection
under the Meat
of all
inspections
21
and
U.S.C.
in the
these officials
to
seeking
influence
slaughtered,
meat is
where
establishments
sense,
In this
discharge of their duties.
salted,
See U.S.C.
packed, or rendered.
what
exemplifies
Act
Inspection
the Meat
duty to make all
Secretary’s
§ 608. The
“target-
called a
the Sun-Diamond
Court
lacks the
regulations
necessary rules
threaten,
not
as
it does
prohibition;”
ed
“official
focus of the term
particularized
statute,
to make
gratuity
did the federal
act,”
Secretary were to
or not the
whether
complex
a
pieces
other
out of
“misfits”
fulfilling this
official acts in
take certain
Id. Within
the nar-
regulatory puzzle.16
beyond the
duty. These duties extend
it cov-
activities
range
row
of meat-related
development
promulgation
mere
however,
provision
ers,
gratuity
Act’s
an
encompass
safety regulations,
food
gener-
than
expansive
actually more
is
enforcement
ongoing obligation to ensure
statute,
can be
seemingly
itas
gratuity
al
Accordingly, one
conformity
therewith.
particular
a
reference to
without
triggered
influence the
unlawfully attempt
could
lacks
Inspection Act
act.
Meat
official
The
discharge
of his broad-
Secretary
the careful definition
counterpart
a
identifying
par-
without
based duties
the term “official
gives
statute
regulatory fore.
then at the
policy
ticular
statutory
act,”
very
language
that his
might
seek to ensure
offender
heavily
the Sun-Diamond Court
so
which
interests were addressed
company’s
nexus.
requiring
particularized
relied
ultimately
policies
or
whatever decisions
fact,
place
does not
restric-
the Act
screen,
agency’s radar
or
moved
up
upon what consti-
gloss
tive definitional
pro-enforcement
to affect a
simply
want
any duty
under
discharge
“the
tutes
tilt, and a more favorable
deregulatory
Act,”
ordinary meaning of
allowing the
regulatees. We bela-
all
interpretation.
attitude toward
govern
terms to
those
they il-
Espy,
points
145 F.3d
bor
obvious
because
See United
these
(D.C.Cir.1998) (a “duty” is “some-
In-
ways in
the Meat
lustrate
expected
required
thing that one is
is more
gratuity prohibition
spection Act’s
(citation
legal obligation”)
do moral
substantively
tempo-
both
expansive,
omitted).
rally,
general
federal
than
Sun-
Supreme
Court’s"
statute under
indicates, the
Espy
opinion
As our own
motivating
Diamond
decision. Given the
under
the Agriculture
duties of
i.e.,
Inspection
force behind the Meat
Act are manifold. See
Act—
Inspection
the Meat
the out-
desire to
Secretary’s general
congressional
address
id. As
"corruptly,”
States v.
to act
see United
language
dant
Nothing
or structure
(D.C.Cir.1996),
proscription to
Inspection Act limits its
Gatling,
Meat
96 F.3d
bribes,
gratuities,
opposed to
giving
acting
"intent
speaks only of
with an
the Act
appears
sug-
dissenting colleague
as our
gest.
influence,”
requirement associ-
the scienter
Op.
have
at 855. While we
See Diss.
gratuity. See id.
ated
an unlawful
bribery requires
defen-
previously
held
sanitary conditions documented in
rageous
On the basis of the
presented,
evidence
Jungle
book The
Upton
securely
Sinclair’s
reasonable
find that
—-the
gratuity provision
participated
Espy’s
breadth
is unsur-
securing
attendance
party.
prising.
Espy,
party upon Secretary
and Ms.
Espy
in arranging Espy’s
Schaffer’s role
at-
Dempsey. Assuming sup
evidence
there,
tendance in Russellville did not end
ports
finding,
go
that
we
on to ask whether
as he
a series of communications
had
re-
additionally
rational
have de
garding
trip
Espy’s
with Secretary
thing
pro
termined that the
was
value
USDA
coordinator.
In response
travel
vided
with the
intent to influence
logistical questions involving
her
the Sec-
Secretary Espy’s actions on either zero retary’s
itinerary,
stated
official
handling
tolerance or safe
all-day
meeting
labels.
that
APF
in-
would
labels,
alternatively in the
(rather
handling
safe
the 15-
than
people
volve some
that,
issues
that
when those
came),
hope
Tr. at
see
20 who
6/18/98
forefront, the Sec-
regulatory
at the air-
Secretary
to the
moved
he would meet
to,
meeting,
hopefully
that
him to the
listen hard
retary
escort
would
port and
meeting
by a
proposals,
dinner
swayed by,
would be
Foods’
followed
be
invited, that the
Secretary was
Again
which
concerns.
suggestions,
and/or
at the
overnighting
Secretary
subjec-
would
of an actor’s
proof
that
recognizing
and that
Tyson Complex,
recourse
likely require
will
motivation
tive
Washington
back to
transported
would be
evi-
rather
than direct
to circumstantial
addi-
plane.
APF charter
on an
843-44, we
dence,
supra pp.
discussion
see
passen-
the other
a list of
tionally provided
counsel has
that the
believe
at 558-
Tr.
flight.
that
gers on
to establish
sufficient evidence
presented
transportation
respect
70. With
requisite link.
requested use
arrangements, Schaffer
rejected
court
The district
aircraft
corporate
cor
grounds,
separate
on two
jury verdict
to Russellville
Dempsey
transported
official
the two identified
responding to
weekend,
her
transported
in turn.
acts,
each of
address
Sunday.
Washington
Espy back
First,
although the
the court noted
318-20;
De-
GX103.
Tr. at
See 6/17/98
intent
announced his
efforts, when subse-
these extensive
spite
initiative at
labeling
move forward with
agent,
FBI
by an
quently questioned
*15
industry
meeting with
February
his
4th
ar-
had
knowing who
denied
promulgate
did not
he
representatives,
Secretary
girlfriend
or his
ranged for the
after
until three months
regulation
interim
stay
to
party or
the Russellville
to attend
Williams, 29
addition,
party. See
the Russellville
he
Complex.
In
Tyson
at the
had
proposal
officials,
F.Supp.2d at
Once
rather
than
that APF
asserted
Foods,
forefront
regulatory
contacted moved to the
had
anyone
Tyson
at
E
out
January
at the
coli
his attendance
arranged
and
aftermath
however,
Tr. at 1209-13.
how the
break,
we do not
meeting. See
see
APF
testimony, a reason-
publication
timing
the basis of
of its official
precise
On
only
not
find that Schaffer
Tyson
Foods
able
that
undercuts an inference
speaking
Espy’s APF
arrange
to
helped
through
its final form
hoped to influence
actively partici-
he
but that
engagement,
district court’s
The
bestowing largess.
attendance of
securing
pated
col
conclusion,
by
dissenting
our
echoed
the Russell-
Secretary
girlfriend
his
at
Op.
presumably
at
league, see Diss.
party.
ville
Ty
argument
picked up on Schaffer’s
labeling pro
oppose
did
son Foods
not
the more difficult
Turning now to
August promulgation,
posal prior to its
intent,
the inde
we note that
question of
objected
stringent
to
only
its
even then
case under
prosecuted the
pendent counsel
to
substance.
requirements, not
timing
to the third
corresponds
theory
timing
regard
not
again,
But
we do
gra
typology of
three-part
variant of our
infer
negating a reasonable
sequence as
pp.
supra
See discussion
tuities offenses.17
def
intent,
particularly under
ence of
words,
In
841-42.
other
reviewing
use
we
erential standard
Espy’s
establish that
sought
to
counsel
re
The statute
jury’s
guilt.
verdict of
was secured
party
attendance at
not an at
influence,
quires an intent
pro
to induce the
the intent
partic
to eviscerate some
tempt to block or
future
take,
shy away from some
pose,
fact,
the economics
act.
ular official
tolerance
respect to either zero
act with
meat, the
policy
specifically
affects
Meat
17. Since
violation
statute,
connection
sought to make this
Act,
prosecution
general gratuity
contrast
well.
the favor
additionally requires a link between
predatory practices
larger
instructs that
zero
only
tolerance
applied
to cattle
companies may support
encourage
slaughter
establishments, which Tyson
stringent
regulations,
new
as the marginal
owned,
Foods had never
Dr. Cross’s con-
complying
cost of
with a regulation will gressional
testimony
illustrates
typically
higher
.companies.
small
USDA’s pathogen control policy extended
generally,
Ann P.
Lacy
Bartel &
Glenn
processing
well,
plants as
Tyson
Thomas,
through Regulation:
“Predation
did
own.
any event,
See GX116. In
Wage
Profit Effects
the Occu-
regulations governing the
industry
meat
pational Safety and Health Administration
eventually affect all those in the business
and the Environmental
Agen-
Protection
selling
products,
meat
regardless of
(1987).
cy,” 30 J.L. & Econ. 239
Addition-
they
where
fall on the stream of commerce
al regulation
help
thus
can
undermine
linking the farm to
supermarket
shelf.
competition, and this fact of business life Government initiatives that affect the cost
any necessary
severs
link between opposi- of meat as a raw material logically impact
tion and influence. Since
requisite
meat
resellers like
Foods.
intent under
appear
the statute can
In the
of any
absence
direct statement
forms,
many
find
irrelevant under
by
Schaffer or
Foods that Espy’s
the statute whether
party
providing
attendance at the
party
Russellville
had
hoped to induce or to discour-
been substantially
motivated
an intent
act,
age an official
encourage
or even to
to influence the Secretary, we assess the
recipient
to adhere
quo.
to the status
rationality of
jury’s
verdict
examin-
respect
tolerance,
With
to zero
the dis-
ing the evidence before it.
reading
Our
trict court concluded that insofar as that
the record reveals that Schaffer and other
meat,
policy related
policy
“[t]he
officials
Foods had extensive
already
implemented,
been
on March
communications with the
and his
1993, so the
[Act’s]
‘intent to
staff, in each of which they sought to per-
influence’ that action could not have been
suade USDA to
pending
shift a
policy in
*16
Williams,
present May.”
in
29 F.Supp.2d
one direction or
respect
another. With
to
at 7. We do not
the record
read
the same
the safe handling
alone,
label issue
the
way. While the generative “our tolerance
prosecution introduced a series of written
for fecal matter will be zero” memorandum
communications
seeking
sway
to
the
2nd,
had been issued on March
the record
USDA,
which,
form,
each of
in some
had
that
indicates
FSIS
develop
continued to
gone through
Schaffer. The
had be-
and the USDA
implement
continued to
its
(i)
fore it:
Regula-
letter from the Foods
pathogen
policy throughout
control
1993.
Manager
tion
Operations,
and the VP of
Dr. Cross
that
testified
FSIS worked
aon
Beef and Pork
Division at
Foods to
policy of zero tolerance for meat and poul-
Secretary Espy, coupled with testimony
try all during
and that
policy
the
was
that
every
Schaffer reviewed
such docu-
ready
presentation
not
for
to the Secretary
government
ment directed at
officials and
until
year.
November of that
See 6/17/98
GX130,
1290;
public,
the
see
Tr. at
Moreover,
Tr. at 466-67.
when Dr.
6/23/98
Cross
(ii) a letter from
Bumpers
Dale
left
in
Senator
departure
FSIS
his
memoran-
Foods)
(essentially
by Tyson
dum
drafted
outlining
to
pending issues listed several
Secretary Espy
elements of
and to Vice
pathogen
the
President
pro-
reduction
Gore,
gram
copies
for meat
that
of
were
originally
had been
which
simultaneously
Schaffer,
introduced
sent to
public
along
to the
on
with
February
testimony
4th
re-
GX120;
and 5th.18
Finally,
garding contemporaneous
See
GX116.
communications
whereas the
emphasized
district court
between Schaffer and Senator Bumpers’s
with,
Contrary
18.
suggestion,
to the
way
dissent's
see
rely upon,
cerned
and in no
n.*,
Op.
Diss.
at 855
all of the evidence we
proposal
course of the USDA’szero tolerance
recount here
policy
the USDA’s
involves
of
poultry.
zero tolerance for
We are
meat.
not con-
circumstantial, we be
GX131A,
admittedly
GX131,
issue,
While
see
office about
testimony
confluence
848-52,
Tr.
1273-
at
lieve that
Tr. at
6/23/98
6/19/98
sufficiency. At a
labeling issue
(iii)
standard of
75;
meets the
a letter
point-man
minimum,
counsel’s case:
to the
from
Williams
Jack
whom the
(i)
with
policies
House
concern
the White
identified
GX136,
(ii)
GX138.
contact. See
in close
employer;
was
his
the defendant
addition,
testimony from
jury heard
merely incho
rather than
pending,
were
Watts,
National
(iii)
President
George
ate,
gratuities;
time of the
at
meeting
Council,
August
about an
Broiler
his em
defendant
which the
about
and/or
Schaffer,
had
others
he,
two
timely communications
ployer had
to discuss
Secretary Espy
scheduled
(iv)
official;
through which
recipient public
additionally ad-
labeling issue. Watts
concerns, recommenda
known its
it made
memo-
drafting
pre-meeting
mitted
compliance
tions,
likely costs of
and the
he communicated
wherein
randum
form;
current
in
then
policy
with.the
dis-
impropriety of
participants
general
was,
(v)
at
question
in
the official
and that
indus-
between
cussions
in a
gratuity,
time he received the
regulations
about
try representatives
trajectory of the
position to influence
stage, and the correlative
rulemaking
question.
See United
policies
See
around the issue.
tiptoe
need
(D.C.Cir
Haldeman,
F.2d
115-16
629-39,
Finally, Pa-
GX124.
Tr.
6/18/98
curiam)
.976) (in banc)
(“Except
(per
that she witnessed
testified
Dempsey
tricia
circumstances,
in
criminal
extraordinary
Secretary Espy about
Tyson confront
John
evidence;
direct
proved by
tent cannot be
September
at a
labeling
issue
appropriate but
only
not
it is therefore
seeking
persuade
him
reception,
jury to look at ‘all
necessary for the
also
Tr. at
rule.
alter
need to
determining specific
the circumstances’
omitted).
intent.”)'
(citation
Generally
implied
strongly
evidence
Additional
prosecution has
when a
speaking,
up
attempted
cover
elements,
established each
these
Secre-
Foods in
the involvement
ques
rationally
the intent
decide
can
to Russellville.
tary Espy’s trip
jury could have
way.
tion either
While the
further
a number of
actions
took
defense, finding the
accepted Schaffer’s
Espy’s
fact
collectively
obscured
by a
have been motivated
gratuities to
other USDA
party
at the
attendance
feelings
warm
generate
desire either
example,
For
when communicat-
officials.
satisfy
or to
Don
Tyson Foods
towards
*17
coordinator, he
travel
Espy’s
with
ing
surrounding himself
Tyson’s penchant for
the aircraft trans-
mention that
omitted to
celebrities,
justice sys
our criminal
belonged
porting the
jury
to sort out
tem
it to
leaves
Foods,
APF
describing it instead as an
the evidence.
constructions of
competing
When
Tr. at 573-75.
charter. See 6/18/98
cost of
sought to reimburse the
the USDA
Cross-Appeal
B. Schaffer’s
re-
lodging,
transportation
Espy’s
court
Having decided that
the district
policy, Schaffer directed
quired
agency
for a
motion
granting Schaffer’s
erred in
al-
invoices and
phony
APF
to create
Inspec-
Meat
acquittal
on the
judgment
in-
for costs
payment
it to receive
lowed
count,
necessary to
tion
becomes
Act
id.
495-
by Tyson Foods. See
at.
curred
conditional denial
the court’s
review
omitted Patricia
Finally,
Schaffer
a new
alternative motion
Schaffer’s
passenger
from the
list
Dempsey’s name
two
trial on
seeks
new
trial. Schaffer
traveling
those
cre-
each
grounds, claiming
separate
Russellville, thereby
from
corporate plane
integrity
doubt
ates sufficient
trip
nature of the
obscuring
private
error.
reversible
jury
to constitute
verdict
coordinator.
id.
Espy’s
from
travel
alleged
each of the
we find
Because
568, 570.
grounds harmless under
prevailing
The credibility of a witness may be at-
errors,
assessing
standard for
trial
we af-
tacked or supported by evidence in the
firm the district
deny
court’s order and
form of opinion or reputation, but sub-
cross-appeal.
Schaffer’s
ject
(1)
to these limitations:
the evi-
may
dence
only
refer
to character for
608(a) Question
1. The Rule
untruthfulnéss,
(2)
truthfulness or
challenges
Schaffer
a series of rul
evidence of truthful character is admissi-
ings by the district court which collectively
only
ble
after the character of the wit-
precluded the defense from introducing
ness for truthfulness has been attacked
testimony regarding the government’s
by opinion
reputation
evidence or oth-
grant of
immunity
both John and Don
erwise.
Tyson. During cross-examination, govern
608(a).
appears
The rule
in-
Fed.R.Evid.
ment
Tyson,
witness John
who had been
applicable, both facially and structurally,
jury
identified to the
as an unindicted co-
to the testimony that Schaffer sought to
conspirator
boss,
and as Schaffer’s
testi
Turning
introduce.
the language
fied that he and Schaffer had never dis
608(a),
Rule
the existence of John and Don
cussed the possibility of influencing Secre
Tyson’s immunity agreements constitutes
tary Espy through largess, nor did he ever
opinion
neither
nor reputation evidence,
that Espy
think
influenced there
only
subjects
two
mentioned therein.
by. See
atTr.
948. Believing that
Moreover, as
speaks
the rule
in general
these statements completely exonerated
terms of a witness’s character for truthful-
him, Schaffer sought to introduce the fact
untruthfulness,
it does not
ness.
touch
Tysons’
immunity to keep
separate
question of whether a
from assuming
that John
could be
generally truthful
may
witness
have a mo-
prosecuted were
he
admit to having
tive
lie in
one
instance. See
discussions about
influencing Secretary
Lindemann,
United States
Focused upon the preventing veracity the witness’s already introduc- has been irrelevant, tion of time-consuming specifically impugned. testimo- In contrast to a 608(a) Rule ny, provides that: general witness’s character for truthful- non-perjurious any prosecuted not be untruthfulness, largely which is ness immunity agree- given a of his testimony because at issue facts peripheral potential that their a witness’s to believe ment, difficult case, question the it is still case-specif- particularized affected. is both have been bias would deliberations of bias has or absence presence The ic. already credibility had been Tyson’s John a to whether speaks because relevance by contra- repeatedly question into called case, aor in this an has witness interest he de- example, For testimony. dictory party. affinity dislike handling labels the safe discussing nied 51, Abel, 469 U.S. v. States See United September at a Espy issue (1984) (“A 83 L.Ed.2d 105 S.Ct. 917, while Tr. see 1993 party, 6/19/98 a part of on the of bias showing successful had that testified Dempsey Patricia tendency to make a would have witness and requested there Espy confronted probable less he testified facts to which the handling the safe flexibility greater it would be jury than eyes Tr. at regulation. labels testimony.”); United such without that proposition disputed also Cir.1991) (1st 221, 225 Akitoye, 923 F.2d about “concerned” been company had his bring out facts (if may the cross-examiner issue, Tr. at labeling see 6/19/98 the. bias, that the “it follows tending to show lobby- Tyson Foods the extensive despite some lati- allowed can be cross-examiner The in the record. case, documented bring ing out effort tude, appropriate in an penal facts and motive bias-producing Tyson lacked a fact that the absence circumstances, strengthening thereby attempt his own up company’s cover witness”). In light credibility little, a helpful have done would to influence why focus, do not see we disparate itsof think, jury’s assessment we alter 608(a) apply. would Rule that any admission credibility. Since his 608(a) con- president should not had if future Rule Foods’ Even fact of John used exclude the Secre- have been to influence others spired with immunity, though, Tyson’s and Don generated have would tary Agriculture in this court district by the error made itself publicity, negative torrent reviewing non- When harmless. case was damaging to highly have been would error, apply trial constitutional (and in- Tyson’s) business John company’s v. Unit in Kotteakos articulated standard stronger terests, had reasons jury “with States, say canwe asking whether ed assuming Finally, even skeptical. all that assurance, pondering after fair immunity agreement of his an awareness erroneous stripping the without happened Tyson’s sufficiently buttressed have would whole, judgment action him, his credibility believed by the er substantially swayed not was no than establish did more testimony still 750, 765, S.Ct. 328 U.S. ror....” presump- Given negative. expected an (1946). doing, we so 90 L.Ed. corporate officials expectation tive suffi previous our merely replicate cannot some discuss not be as would so brazen rather, we inquiry; ciency-of-the-evidence to influence plan or scheme so, itself had the error whether ask “even likely proceed more openly, but would jury. Id. on influence” substantial nods, absence of the mere winks instance, the record looking at In this and Schaf- himself between conversations that the whole, it evident dis- we think if casts conspiracy little fer such about did not have evidentiary ruling trict court’s determination jury’s any doubt jury verdict. influence a substantial acted with that Schaffer testimony, Tyson’s John heard then, *19 all, cannot conclude in we All intent. exculpated allegedly of which portion in swayed have been jury would that lend that did not Schaffer, apparently but learning that solely by direction different jurors credence. Had portion much immunity. grant under a Tyson testified could additionally that John learned Independent 2. The Opening marks, Counsel’s prosecution both the and the de- Arguments and Closing fense continually stressed to the jury the need link the things of value with an challenges Schaffer also a series intent to See, influence Espy. by prosecution of statements made 100, e.g., 103, Tr. 115, 125, 130, at 6/26/98 during opening, closing, its and rebuttal 135; 1703, 1717, Tr. 1726, remarks, of which 6/25/98 allegedly each misstated 1737, 1742, 1766. district The court charged. the elements of the crimes did On occasion, same in its contends, jury, each Schaffer instructions to the pros repeatedly jury invited the emphasizing ecution to convict him alone, engaging lobbying not be found guilty activities with of the offenses finding necessary charged out intent to influ unless he with acted ence official acts needed intent for con to influence the Secretary. See viction under the federal statute 1778-80, Tr. at 1788. From 6/26/98 start and the Meat Inspection finish, Act.19 Measuring question this of intent had center potential prejudicial effect of these al stage at the trial. Because we have no legedly improper statements with refer doubt that the jury understood and delib- ence the entire proceeding, as the Su erated on the basis proper legal Court preme instructed in United States v. standard, we cannot say 1, 11-12, Young, 470 U.S. 105 S.Ct. in question statements effect on (1985), L.Ed.2d 1 we say cannot verdict, jury substantial or otherwise. unfairly was prejudiced. III. Conclusion
To determine whether improper prosecutorial prejudiced statements a de forth, For the reasons set we affirm the right trial, fendant’s ato fair this court district judgment court’s acquittal generally separate considers four factors. and reverse part. Because we (i) We examine: the severity of the mis additionally reject the challenges raised in (ii) conduct; the measures taken to cure Schaffer’s conditional cross-appeal, we va- (iii) misconduct; the certainty of con cate the judgment acquittal on the Meat viction absent improper misconduct, count, Inspection Act reinstate the jury Perholtz, United see States v. 842 F.2d verdict, and remand for sentencing. (D.C.Cir.1988); (iv) the cen So ordered. trality of the issue by affected the error. Gartmon, United
See 146 F.3d HENDERSON, KAREN LeCRAFT (D.C.Cir.1998). Reviewing the Judge, concurring Circuit in part and whole, trial record as a required by dissenting part: inquiry, fact-intensive we do not believe that the was substantially swayed I concur in majority’s holding that independent counsel’s isolated mis verdict is not supported by steps. In their opening and closing re- the evidence but I disagree its rever remarks, opening prosecution your verdict what the standard is. The referenced "get cozy” Foods’ desire to guilty beyond defendants are a reasonable Secretary Espy four times. While it charges doubt of the contained in the in- directly modified this statement on two occa- dictment. by stating gifts sions given "were in order is, question you lobbyists do want get cozy they so that would influence the regulated industry give anything to an Agriculture performance regulates your official that food supply duties,” 100, 99, of his Tr. at the inde- 6/16 when so much is at stake? pendent speak only counsel did “getting Tr. at 1765-66. Defense counsel cozy” during closing the other two. In its immediately objected, the court sustained statement, rebuttal counsel objection and instructed the to disre- following also made the remark: gard the statement. here, submit, What the defendants did should not be tolerated. You will decide *20 854 Act, I Inspection 22 of the Meat ac section of judgment court’s of the
sal district meaning” of “in “more natural Act count. believe the Inspection quittal on the Meat any duty” simi court, that the be discharge of must believe, district the the I like of discharge evidence “in the to be larly failed to adduce construed government influence finding duty of intent of whatever identi particular a support some the duty observes, under of a specific discharge' majority Although, as the ty.” by the Act, as required Inspection Meat Act no defini contains Inspection the Meat in decision Supreme Court’s United section 201’s comparable to “duty” tion of Growers v. Sun-Diamond United States of act,” on which the “official of definition — 1402, 143 -, 119 S.Ct. Calif., U.S. relied to buttress Sum-Diamond Court Therefore, (1999). I would L.Ed.2d 576 provision, gratuity interpretation of of ac- judgment court’s the district uphold believe, still, to what I adhere must of conviction. count quittal each “natural has indicated Supreme Court slate, pro- I would clean That Writing “any duty” on a is. meaning” of In- Meat 22 of the Sum- section pose for both required one under meaning is the (which giving criminalizes Act spection Diamond is reinforced by the Court’s official government to a thing of value in bribery provision there of treatment in [official] to influence said “with intent 201(b)(1)-(2), lan § which—in 18 U.S.C. duty provided for any discharge 22 section guage similar to Act],” 21 U.S.C. Inspection Meat [the giv proscribes Meat Act— 622) of 18 gratuity provision § for (§ 201(b)(1)) receiving ing (which 201(c) giving § criminalizes U.S.C. (§ 201(b)(2)) in thing of “with of a value by a to or thing of value receiving or alia, tent, influence official inter ‘to any official official “for or because public ‘being influ return for (giver) act’ or in by such performed or to be performed act any official performance in the enced 201(c)) official,” § a much 18 U.S.C. public — -, at 119 U.S. (recipient).” act’ than the showing of intent rigorous less (quoting 18 U.S.C. at S.Ct. imposed on Supreme Court (2)). 201(b)(1), Nevertheless, provision Sum-Diamond. Sun-Diamond, Supreme Court In strict construction given the Court’s 201(b)’s bribery provi compared section there, I not see how do gratuity provision 201(c)’sgratuity provision with section sion leniently section more interpret we can distinguishing that “[t]he concluded here. ele crime is its intent feature of each Sun-Diamond, Court Supreme — -, at S.Ct. ment.” U.S. “for because phrase or concluded noted that for a violation The Court provision any official act” “there must be bribery provision, of some “means ‘for because or give or pro quo specific intent to quid —a identity’ just as whatever official act of — exchange something of value receive for any composer?’ you ‘Do like question — at -, act,” 119 S.Ct. U.S. an official particu normally you ‘Do like some means original), gra ” while the (emphasis at 1406 — -, U.S. at composer?’ lar “requires only gra that the tuity provision acknowledged at 1407. The Court S.Ct. accepted ‘for because tuity given possible, linguistically “[i]t is added). Id. (emphasis of an official act.” course, ‘for phrase for mean the more granted took Court general, without acts because of official stringent quid pro quo requirement intent just as the as to which specification one’— bribery required a connection between composer?’ you like question ‘Do act or omis thing given and no you composers, like all could mean ‘Do ” only dis public official. The sion Id. names or music?’ what their matter eyes was in the Court’s question puted however, stated, “the for The court required connection was the same whether mean the more natural mer seems us intent standard satisfy lenient to to more Id. approach the same ing.” Applying
855 proscription section intent poli influence the 201(c). was, The Court determined that it cy intending to “induce” or “dis —whether admonishing that “a statute this field courage” action on it or to “encourse [him] linguistically interpreted that can be to be adhere to the See quo.” status Maj. Op. at either a meat axe or a scalpel should rea 849. As for the safe handling labeling, the — sonably be taken to be latter.” evidence the majority cites to show Tyson at -, U.S. 119 at S.Ct. 1410. We must Foods was concerned about the policy re likewise, therefore, treat 22 section as a lates to the August promulgation 1993 scalpel which can only excise the most emergency labeling regulations, to take ef precisely delineated gratui bribes. If the later, days fect 60 oppo Foods’ ty provision requires proof of a “link” be sition to their expedited implementation. act, tween a as Sun- See and a bribe Government 130, 131, Exhibits Diamond held, language the intent in sec 131A, 136, 138; 625-36, Trial Tr. at 848- tion must also be construed to mandate 52, 1095, 1273-75. There nothing is a link between the thing given and dis suggest that Tyson Foods was aware of charge of a specific duty the giver has the expedition it was even —or attempted to influence. Applying the planned the time of the Russellville —at Sun-Diamond standard, I cannot find evi in May festivities 1993. dence to support required link between May feting Agriculture Secre Russellville, tary Espy in Arkansas and an
intent appellee Schaffer’s to influ
ence either the “zero policy tolerance”
the safe handling labeling policy for meat.
First, there is nothing record to
connect the Russellville festivities government’s “zero policy tolerance” —ex EKEDAHL, Sharon Appellee, cept for the bare facts that was a might business that by affected (or policy such a and that policy CORESTAFF, INC., Appellant. revision) may have been actively under No. 98-7119. consideration Department Agri culture at the time.* This coincidence United Appeals, States Court of not, does as Sun-Diamond requires, District Columbia Circuit. “prove a link” policy between the and the Argued Feb. 1999. party. Maj. Op. at (concluding that “an awareness a regulated entity July Decided that the USDA had been developing a new pathogen control policy” not is “definitive
link” gratuity provision). under There is
nothing suggest that at the time of the
Russellville weekend Foods was
concerned about policy any
way, much less that it invited Secretary
* notes, majority As the Act, policy duty zero tolerance not a Inspection under the Meat already for meat adopted been in Febru- governs only which "meat meat food ary Maj. Op. 1993. See 844. To the 602, 603, products,” §§ see 21 U.S.C. defined extent the evidence shows intent to an influ- "any product capable of use as human food policy ence a cannot Meat poultry, zero tolerance wholly is in part made support a violation of section portion meat or other cattle, of the carcass of Inspection Act only which criminalizes swine, sheep, goats,” 60l(j) id. gifts to discharge duty influence the of a under govern poultry. does not the Meat Poultry Act. labeling is