ORAL ARGUMENT NOT YET SCHEDULED





UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT







NO.xxxxxxx



Consolidated with Nos. xxxxxx and xxxxxxxxx









BRIEF OF APPELLANT













UNITED STATES OF AMERICA, Plaintiff-Appellee,



v.





xxxxxxxxxxx, Defendant-Appellant.











APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA













A. J. KRAMER

FEDERAL PUBLIC DEFENDER

625 Indiana Avenue, N.W.

Suite 550

Washington, D.C. 20004

(202) 208-7500

District Court

Cr. No. 87-0076

CERTIFICATE AS TO PARTIES,

RULINGS, AND RELATED CASES



Pursuant to Rule 11 of the General Rules of this court, appellants hereby state as follows:

A. Parties and Amici: The parties below and in this court are the defendant-appellant, David xxxxxx, and the plaintiff-appellee, the United States of America. There are no intervenors or amici, either in the district court of this court.

B. Rulings Under Review: In this appeal defendant challenges various rulings of the district court, the Honorable Charles R. Richey. The district court published two opinions in this case, United States v. xxxxxx, 778 F.Supp 534 (D. D.C. 1990), and United States v. xxxxxx, 778 F.Supp. 540 (D. D.C. 1991).

C. Related Cases: This case has been before this court previously with respect to the district court's granting of defendant's suppression motion, which this court reversed. United States v. xxxxxx, 851 F.2d 376 (D.C. Cir. 1988).

TABLE OF CONTENTS

TABLE OF AUTHORITIES ii

ISSUES PRESENTED iv

STATUTES AND REGULATIONS iv

GLOSSARY v

JURISDICTION 1

STATEMENT OF THE CASE 2

STATEMENT OF FACTS 4

A. Introduction 4

B. The Government's Case 5

C. Motions at Conclusion of Government's Case 14

D. The Defense Case 15

E. The Closing Arguments 22

F. Instructions 23

G. Post-Trial Motions 25



DISCUSSION 28



SUMMARY OF ARGUMENT 28



I. THE GOVERNMENT FAILED TO PROVE ALL THE ELEMENTS OF AN OFFENSE UNDER 18 U.S.C. 203 29


II. THE STATUTE, 18 U.S.C. 203 REQUIRES THAT DEFENDANT KNOW HE WAS A PERSON COVERED BY THE STATUTE; OTHERWISE THE STATUTE IS UNCONSTITUTIONALLY VAGUE AS APPLIED IN THIS CASE 31



III. DEFENDANT SHOULD HAVE BEEN ABLE TO PRESENT A DEFENSE OF RELIANCE UPON OFFICIAL MISSTATEMENT OF THE LAW 35



IV. THE DISTRICT COURT IMPROPERLY EXCLUDED DEFENSE EVIDENCE CONCERNING DEFENDANT'S STATE OF MIND 38



V. THE GOVERNMENT'S CLOSING ARGUMENT WAS IMPROPER AND HIGHLY PREJUDICIAL 39



VI. THE DISTRICT COURT'S INSTRUCTIONS DID NOT SET FORTH THE ELEMENTS OF THE OFFENSE 42



VII. THE DISTRICT COURT SHOULD HAVE GRANTED A NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE 45



CONCLUSION 47



CERTIFICATE OF SERVICE 48



TABLE OF AUTHORITIES



CASES





Raley v. Ohio,

360 U.S. 423 (1959) 36



Ricks v. District of Columbia,

414 F.2d 1097 (D.C. Cir. 1968) . . . . . . . . . . . . . 34



United States v. xxxxxx,

851 F.2d 376 (D.C. Cir. 1988) . . . . . . . . . . . . . . 2



*United States v. Barker,

546 F.2d 940 (D.C. Cir. 1976) . . . . . . . . . . . . . . 37



United States v. Brewster,

506 F.2d 62 (D.C. Cir. 1974) . . . . . . . . . . . . . . 32



United States v. Brown,

921 F.2d 1304 (D.C. Cir. 1990) . . . . . . . . . . . . . 39



United States v. Burns,

668 F.2d 855 (5th Cir. 1982) . . . . . . . . . . . . . . 45



United States v. Clark,

546 F.2d 1130 (5th Cir. 1977) . . . . . . . . . . . . . . 36



United States v. Evans,

572 F.2d 455 (5th Cir. 1978) . . . . . . . . . . . . . . 32



United States v. Foster,

982 F.2d 551 (D.C. Cir. 1993) . . . . . . . . . . . . . . 41



United States v. Haldeman,

559 F.2d 31 (D.C. Cir. 1976) . . . . . . . . . . . . . . 32



United States v. Lafayette,

983 F.2d 1102 (D.C. Cir. 1993) . . . . . . . . . . . . . 46



United States v. Lancaster,

968 F.2d 1250 (D.C. Cir. 1992) . . . . . . . . . . . . . 34



United States v. Laub,

385 U.S. 475 (1967) 36



*United States v. Lawton,

995 F.2d 290 (D.C. Cir. 1993) . . . . . . . . . . . . . . 44



*United States v. Nofziger,

878 F.2d 442 (D.C. Cir. 1989) . . . . . . . . . . . . . . 33



United States v. Poindexter,

951 F.2d 369 (D.C. Cir. 1991),

cert. denied, 113 S. Ct. 656 (1992) 34



United States v. Teffera,

985 F.2d 1082 (D.C. Cir. 1993) . . . . . . . . . . . . . 41



United States v. Wilson,

894 F.2d 1245 (11th Cir.),

cert. denied, 110 S. Ct. 3284 (1990) 45





STATUTES



10 U.S.C. 672(D) . . . . . . . . . . . . . . . . . . . . . . . 26



18 U.S.C. 202 (II:24-25) . . . . . . . . . . . . . . . . 14, 35



18 U.S.C. 203(a) 2, 28, 29, 31, 35



18 U.S.C. 3231 1



28 U.S.C. 1291 . . . . . . . . . . . . . . . . . . . . . . . 1



Fed. R. App. P. 4(b) . . . . . . . . . . . . . . . . . . . 1, 45



Fed. R. Crim. P. 33 . . . . . . . . . . . . . . . . . . . 26, 45



S. Rep. No. 2213, 87th Cong., 2d Sess. (1962),

reprinted in 1962 U.S.C.C.A.N. 3852 33





MISCELLANEOUS



49 C.F.R. Part 99 35





* Cases chiefly relied upon are marked with an asterisk



ISSUES PRESENTED



I. Whether the government proved all the elements of a violation of 18 U.S.C. 203.

II. Whether the statute requires that the defendant know he was a person covered under the statute, and, if not, whether the statute is unconstitutionally vague.

III. Whether the district court erred in precluding defendant from presenting a defense of reliance upon official misstatement of the law.

IV. Whether the district court erred in precluding defendant from presenting evidence concerning his state of mind, especially where the government had presented such evidence.

V. Whether the government's argument was improper and prejudicial in falsely stating certain facts.

VI. Whether the district court's jury instructions properly set forth the elements of the offense.

VII. Whether the district court erred in denying defendant's motion for a new trial based on newly discovered evidence.



STATUTES AND REGULATIONS

The pertinent statutes and regulations appear in the addendum to this brief.


GLOSSARY



For the convenience of the court, defendant includes the following glossary of the four acronyms used throughout the brief:

ISTI - International Science and Technology Institute. The company which paid defendant to participate in a presentation of a meeting with the Coast Guard.

VST - Vessel Traffic Control System. A system for boats in the Port of New Orleans similar to an air traffic control system.

 

SADT (also SPACDUTRA) - Special Active Duty for Training. A temporary period of active duty for Coast Guard Reservists.

TEMAC - Temporary Active Duty. Another form of a period of temporary active duty for Coast Guard Reservists.







UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT







NO. xxxxxxx



Consolidated with Nos. xxxxx and xxxxxxxx









BRIEF OF APPELLANT











UNITED STATES OF AMERICA, Plaintiff-Appellee,



v.





DAVID xxxxxx, Defendant-Appellant.







APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA







JURISDICTION





The district court had jurisdiction pursuant to 18 U.S.C. 3231. The notice of appeal from the conviction was timely filed under Fed.R.App.P. 4(b), and thus this court has jurisdiction pursuant to 28 U.S.C. 1291. This court's jurisdiction over the appeal from the district court's denial of defendant's motion for a new trial is discussed in detail below.



STATEMENT OF THE CASE

This case has had a fairly unusual and tortuous history. The defendant was originally indicted on March 3, 1987, in a one-count indictment, charging a violation of 18 U.S.C. 203(a), compensation to an officer or employee of the government in matters affecting the government, involving events occurring on August 9, 1985 (APP:1). (1) During the pretrial proceedings, the district court granted the defendant's motion to suppress certain statements he made. The government filed an interlocutory appeal, and this court reversed that decision in United States v. xxxxxx, 851 F.2d 376 (D.C. Cir. 1988).

A superseding one-count indictment was filed January 12, 1989, charging a violation of 18 U.S.C. 203(a)&(b)(2) (APP:3). (2) On January 27, 1989, the jury found the defendant guilty. After the verdict, the defendant filed a motion for judgment of acquittal which was denied on May 1, 1990, in an opinion published at 778 F.Supp 534 (D.D.C. 1990) (APP:32). On June 1, 1990, the district court sentenced defendant to incarceration for one year, the execution of which was suspended. (3) A special assessment of $50 was levied and defendant was placed on probation for one year with the special conditions that he complete 200 hours of community service and that he not hold a position in the federal government (APP:39). Defendant has completed his probation.

Defendant filed a timely notice of appeal on June 11, 1990 (APP:41). Pursuant to defendant's request, this court, on February 14, 1991, suspended the briefing schedule, so that defendant could pursue a motion for new trial in the district court. The district court denied the motion for new trial on November 12, 1991, in an opinion published at 778 F.Supp. 540 (D.D.C. 1991) (APP:42). Defendant's trial counsel failed to file a notice of appeal from the order denying the new trial until January 29, 1992 (APP:50). The trial counsel also filed a motion with the district court to expand the time to file the notice of appeal from the denial of the new trial motion or to vacate and reissue that denial, and to withdraw from the case and have new counsel appointed. The district court denied all these motions on March 20, 1992. A timely notice of appeal of those denials was filed on March 30, 1992 (APP:56). Trial counsel then filed, on April 3, 1992, with this court a motion to withdraw as counsel and have new counsel appointed.

On April 24, 1992, this court granted trial counsel's motion to withdraw from the case, and on May 21, 1992, the Federal Public Defender was appointed to represent defendant. Present counsel subsequently moved to stay the proceedings in this court to go to the district court and attempt to seek relief from trial counsel's failure to file a timely notice of appeal from the denial of the motion for a new trial. On October 20, 1992, this court stayed the appellate proceedings. Defendant then filed a motion in the district court to extend the time for filing the notice of appeal from the denial of the new trial motion or to vacate and reissue that decision. On January 26, 1993, the district court denied that motion (APP:57). On February 4, 1993, defendant filed a notice of appeal from that decision (APP:61).

Thus, there have been four notices of appeal filed. The case is finally back in this court, all the proceedings in the district court hopefully having been concluded.



STATEMENT OF FACTS


A. Introduction

This case arises from the decision of the Coast Guard in the mid-1980's to attempt to buy a vessel traffic control system (VTS) for the port of New Orleans (I:107). This would be like an air traffic control system for the harbor, and would be a complex, sophisticated electronics project (I:107). A firm called International Science and Technology Institute (ISTI) decided to bid on the proposal. ISTI was a minority firm under regulations of the Small Business Administration (I:3-4). Under these regulations, certain government contracts are set aside for minority businesses (I:107). Lisa Dickerson, who was a marketing person for ISTI, suggested to Wesley Copeland, the president of ISTI, that ISTI bid on the Coast Guard proposal (I:35-36).

ISTI had worked mostly with developing countries in areas such as health contracts and data processing service (I:2, 108-109). Dickerson felt that ISTI should try to get the VTS project, and began to look for people who could do the type of work that would be required (I:36-37). As explained in more detail below, defendant was recommended for the job and subsequently was paid by ISTI to attend two meetings in Washington.

B. The Government's Case

A Coast Guard Lieutenant Commander, Eugene O'Dell, became interested in the job and submitted a resume to Dickerson (I:38). Because he was on active duty with the Coast Guard at the time, however, he could not work for ISTI, so he recommended the defendant for the job (I:38). Dickerson called defendant in New Orleans and asked him if he was interested in the job (I:38). Defendant agreed to have Dickerson send him information about the project for him to look at to see if he was interested (I:39-40).

A meeting with the Coast Guard had been scheduled to take place in early July, 1985, in Washington (I:40). ISTI thought this was an informational meeting, so that a later formal proposal could be made to the Coast Guard (I:41). Defendant was asked to attend this meeting by ISTI to participate in asking questions and getting answers (I:41). It turned out, however, that the Coast Guard intended the July meeting to be the only opportunity for ISTI to present its proposal (I:41). When the ISTI people went to the meeting and learned this, they left (I:42).

Defendant was to be the project manager if ISTI got the job (I:43). He would be the person to pull together the technical expertise necessary to install the VTS (I:43). Defendant attended the July meeting at ISTI's request and was reimbursed $671 for his expenses in coming to, and staying in, Washington (I:26).

After the aborted meeting in July, ISTI complained to the Small Business office at the Coast Guard, and a meeting where ISTI could make a formal presentation was scheduled for August 9, 1985 (I:42, 59). Between the time of the July and August meetings defendant was to work on putting together the best technical approach to the project (I:64). Defendant was to be paid for attending the August meeting as well as for his time in preparing for it, at the rate of $50 per hour (I:26, 44). He was paid $800 for sixteen hours of preparation and presentation for the August meeting as well as $192.10 in expenses (I:16-17). For this second meeting, defendant brought with him John McKracken, whom defendant had enlisted as the proposed systems manager for the project (I:55).

Both Copeland and Dickerson understood that defendant was in the Coast Guard Reserves, and did not believe that he was on active duty (I:7, 47). They asked defendant if being a Reservist would present a conflict of interest problem (I:7, 45). Defendant told them he would check (I:45). Later defendant said that he had checked with legal counsel and that there was no conflict (I:7, 45). Defendant never suggested that he had any inside information or personal influence that could benefit ISTI (I:30, 66-67).

At the August 9 meeting Copeland introduced defendant as being in the Reserves and as having been out of the Coast Guard for five years (I:10). About thirty-five people from the Coast Guard were at the meeting, at which Copeland, Dickerson, McKracken, and defendant all talked about their roles (I:11). Defendant answered a lot of technical questions, and provided the lead technical role for ISTI at the meeting (I:11, 56). Everyone in the room knew the meeting was being tape recorded (I:121).

Diane Coad, a procurement analyst for the Coast Guard, was at the August meeting (I:113). She testified that defendant was introduced as a current Reservist, and defendant told them he was a full-time Reservist (I:114, 116, 125-126). Had anyone stated that defendant was on active duty, they would have needed to investigate whether there was a conflict (I:118). Defendant referred to his various work experiences as a Reservist (I:126). When defendant described these assignments it was clear to Coad it was more than weekend duty, and defendant made reference to the fact that he had worked on periods of special active duty for training ("SADT") (I:132, 134).

Captain John McCarty was chief of contracting for the Coast Guard at the time, and he also attended the August 9 meeting (I:136). He had met defendant six years earlier when they were stationed together in Miami (I:139). Defendant called McCarty several days before the meeting (I:139). Defendant told McCarty that defendant was a Reservist and that he knew there was some controversy about ISTI and the Small Business Administration (I:140). Defendant was concerned that there might be retaliation against him if he worked for ISTI (I:140). McCarty said he did not feel there would be any retaliation against defendant (I:142).

McCarty asked defendant if working for ISTI was a conflict (I:141). McCarty defined a conflict as someone participating in or being involved with both sides in the negotiating process (I:141). Defendant said that he had seen counsel and that there was no conflict (I:142). Defendant told McCarty that defendant was a Reservist, but he did not say he was on active duty (I:143). McCarty claimed that he would have not accepted defendant's assertion that there was no conflict if he had known of defendant's actual status. (I:143).

At the meeting defendant did call himself a full-time Reservist and said he had worked on periods of SADT (I:150-151). It was clear to McCarty that some of the work defendant described was as a Reservist on SADT (I:152). Defendant was never asked if he was currently on SADT, nor was he asked how long he served on SADT for any particular project, yet McCarty claimed it was not clear that defendant was then currently on active duty (I:152-153). Anyone at the meeting could have picked up the phone to check on defendant's status (I:155). In fact, after the meeting someone did check on defendant's status (I:158).

Lieutenant Commander Donald Opedal was also at the August meeting. He also testified that there were comments that defendant was not on active duty, although defendant gave repeated examples about being on active duty within the last five years. (I:163, 173). Opedal testified that defendant stated that he was currently unemployed due to being terminated at Automatic Power because he was working on a period of SADT with the Coast Guard (I:168).

After the meeting, Opedal was chatting with McKracken (I:165). The defendant came up and extended his hand and said something to the effect of "I didn't want to get into any trouble. I was just looking for a job" (I:165). Opedal did not ask defendant what he meant by that comment (I:174).

The government presented evidence of defendant's status during the time periods in question. Defendant was on active duty in the regular Coast Guard until 1980 (I:90). After leaving the Coast Guard defendant made several requests for return to full-time active duty status, which were unsuccessful (I:87-89). He had served on orders for SADT, however. Starting on March 7, 1985 until July 23, 1985, a total of 139 days, defendant was on SADT for a civil engineering assignment (I:81-82, 86) (APP:5). Defendant started SADT again on July 24, 1985, for a period not to exceed sixty-nine days (I:81) (APP:6). At the time of the August 9 meeting defendant was on SADT, assigned to the Eighth Coast Guard district in New Orleans for a special project (I:82, 86).

A set of orders for SADT means a person is expected to serve for the period indicated on the orders (I:91) There is no guarantee or indication of continued employment upon the expiration of the orders (I:92). While a person can request further periods of SADT, if the command decides not to continue the employment, there is no recourse (I:92).

There are several important distinctions between regular active duty and SADT. Active duty personnel have a separate promotions list, which does not include people on SADT (I:190). Active duty is for an indefinite term up to thirty years, while SADT is for a finite period of time (I:190). A "regular" is someone on active duty (I:190). Captain Thomas Snook, the Chief Trial Judge for the Coast Guard, testified that defendant would not be considered a regular, but was a Reservist (I:190). Captain Snook testified that someone in defendant's status would not be describing their situation accurately if they stated that they were on active duty (I:192). Captain Snook further stated that if someone on SADT was asked, they would normally refer to themselves as a Reservist (I:192).

At the time defendant was on these periods of SADT in New Orleans, his superior was the chief of the civil engineering branch, Commander Larry Lanier (I:94-95). Defendant worked full-time as a Coast Guard officer during the SADT, wearing a uniform (I:96). Defendant was a project engineer assigned to specific tasks, including acquisitions of buildings at various military bases where there was a Coast Guard Reserve contingent (I:97).

Captain Snook was the district legal officer in New Orleans in July and August 1985. As part of his duties Snook was the deputy ethics officer, whom people would consult about conflicts (I:180). Late in June or early in July 1985 defendant, in uniform, showed up in Snook's doorway (I:179). Defendant said he had a conflicts question (I:179). Snook told defendant to put the question in writing, but he said he did not have enough time to do so because he was going on a job interview and needed advice right then (I:180). Defendant told Snook that because of budget cutbacks defendant thought his duty might not be renewed and he would therefore be out of a job (I:181). It was common knowledge that some Reserve officers had been let go because of the budget situation (I:185). Defendant told Snook that defendant was going on a job interview with a consulting firm in Washington that did computer work and wanted to know if he could be reimbursed for expenses (I:181).

Defendant added that the company might be doing, and had done, work for the Coast Guard, but Snook stated it was still permissible to be reimbursed for expenses (I:181). Defendant also said that the company would be making a presentation (I:182). Snook told defendant he could go to the presentation, but should not participate because it would look like defendant was vouching for the company, which a government employee should not do (I:182).

Snook knew that defendant was a Reservist on SADT at the time, and knew that he would be on that status when he went to Washington (I:184). Defendant never put anything further in writing or came back for more advice (I:184). Snook did testify that there was a difference between special active duty for training and active duty for training, although other than duration he did not know what the distinction was (I:195).

John McKracken, a consulting engineer, had been on active duty in the Coast Guard from 1961-1965 (I:198). Since then, he did two weeks a year of active duty for training, and also periods of SADT (I:198). McKracken first met defendant in Florida, where McKracken was defendant's boss in a Reserve unit (I:199).

In July and August, 1985, defendant was still in McKracken's unit, although defendant had been transferred to Houston (I:199). Defendant was either on SADT or TEMAC (I:199). In July, 1985, defendant called McKracken to ask for information about radar and electronic equipment (I:200). Defendant told McKracken that defendant was looking for a job, and needed someone to assist to come to Washington and answer questions, because defendant needed help with electronics (I:200-201). It was a good opportunity for defendant, who thought he would be unemployed when he completed his SADT (I:202). There might also be an opportunity for McKracken, as someone with a background in radar and electronics was needed (I:202).

McKracken said he would go for $50 an hour, plus expenses (I:204). Defendant called him the day before the August meeting and said it was all set, so defendant came to New Orleans and they flew to Washington together (I:205). They stayed at a hotel and went to the ISTI offices the next day (I:206). When McKracken arrived Dickerson confirmed he would get $50 an hour (I:211).

At the ISTI offices, everyone discussed the project (I:207). McKracken understood both he and defendant would participate on behalf of ISTI (I:210). Someone said it was controversial because of the Small Business Administration involvement (I:211). McKracken became uncomfortable because both he and defendant were in the Reserves (I:211). He wanted to check with McCarty and make sure they would not upset anyone by going to the presentation (I:210-211). Defendant went out and came back and said he talked to McCarty who said it was not a problem. (I:212).

McKracken wanted to make sure it was pointed out at the meeting that both he and defendant were Reservists (I:212). Copeland did so (I:219). At the meeting McKracken answered a lot of questions as a proposed employee of ISTI (I:213). After the meeting he went back to ISTI and was paid (I:214).

McKracken knew that defendant was a Reservist either on TEMAC or SADT at the time (I:220, 224). When Copeland stated that neither defendant nor McKracken was on active duty, he thought that was accurate (I:220-221).

The final government witness was a Department of Transportation special agent, Jonathan Armenta, Jr., who interviewed defendant in January, 1986 (II:2). Armenta opened the interview by saying that he had talked to Snook who said that he had told defendant he could not portray himself as a Coast Guard representative and could not take part in a presentation, but could go for a job interview (II:5). Defendant stated that maybe he had made a mistake and that he had learned from it, and admitted that he had done something wrong (II:7, 13). Defendant stated that he was on annual leave at the time (II:7). Defendant told him he was on SADT, but in the Reserves, which was different from active duty personnel (II:17). Armenta did not understand the difference between "reservist" and "activist" (II:17). Defendant talked about receiving legal advice from Snook (II:22). Armenta did not ask if defendant had received legal advice from anyone else (II:23). Defendant answered all of the questions without hesitation (II:19). When the interview was over defendant asked if anything was wrong (II:20).

C. Motions at Conclusion of Government's Case

At the conclusion of the government's case, defendant moved for a judgment of acquittal because the government had not proven defendant was a special government employee under 18 U.S.C. 202 (II:24-25). Defendant asserted that Snook had testified there was a difference between SADT and active duty solely for training (II:25). The government claimed it had proven defendant's status, but also set forth an alternate theory that defendant was appointed not to exceed 130 days and had served for more than 60 days (II:26). Defendant also argued that there was no showing that he had knowingly committed the offense, because testimony, if permitted, would have shown that there was no information in defendant's file advising him of his status (II:27). The district court denied the motion (II:26).

D. The Defense Case

Lieutenant Commander Eugene O'Dell had retired from the Coast Guard in 1987, after 29 years active and reserve service (II:30). He was assigned to the New Orleans district from 1982 to 1984 (II:31). While there he looked for Reserve personnel who might want to come on active duty (II:32). He talked to defendant and asked him to go on periods of SADT, which could be for periods of one to two years, depending upon funding and approval (II:32). Just before O'Dell left New Orleans, the designation was changed to TEMAC, and the maximum time was changed (II:33).

At first defendant came on for 30 days, which was extended as funding and approval were received (II:33). Defendant was one of the best workers, so they kept him as long as they could (II:35). Defendant was unsuccessfully trying to get recalled to active duty (II:35).

O'Dell was always trying to help Coast Guard people get jobs (II:36). He heard about ISTI, but still had three years of active duty left (II:37). Thus, he told defendant about the possibility, because it would be good for him (II:38). O'Dell knew defendant was on TEMAC, which was not permanent (II:38).

O'Dell was asked what defendant had discussed with O'Dell after the first meeting with ISTI (II:39). The district court sustained the government's hearsay objection, although defendant argued that it was not offered for the truth of the matter, but rather to show his state of mind (II:39).

O'Dell told defendant that he knew the ISTI job would be a conflict for a regular officer, but because defendant was not a permanent employee, it would not be a conflict (II:42). O'Dell told defendant that O'Dell could check further with the legal staff and the contracting officer to make sure (II:41-42). O'Dell did so and then told defendant what he had learned from those people (II:42).

O'Dell was not allowed to testify about what he was told by his contacts or what he told defendant O'Dell had learned from them (II:42). Again, the government's hearsay objection was sustained over defendant's argument that it was not for the truth of the matter but to show upon what advice defendant had relied (II:44).

O'Dell did tell defendant that it would be a good idea at the meeting to tell everyone that he was a reserve officer (II:46). O'Dell knew the meeting in Washington was with ISTI and the Coast Guard to discuss the project (II:49). O'Dell told the local Coast Guard investigator about these events, and he called the investigator in Washington three times, but never received a call back (II:49-50).

Captain Thomas J. Schaeffer was deputy chief of Congressional affairs for the Coast Guard at the time of the trial (II:51). In 1983, he was chief of civil engineering in New Orleans, where he met defendant when he volunteered to go on duty after Hurricane Alicia (II:52-53). Originally defendant was on thirty-day TEMAC periods under Schaeffer's supervision (II:53). Schaeffer requested the defendant be rehired for several other TEMAC periods, because defendant's performance on jobs was exceptional (II:53-54). Schaeffer wrote letters and made calls trying to get defendant back on active duty (II:58-59). Schaeffer had told defendant to look for a job because the TEMAC was going to expire (II:61).

Schaeffer knew defendant was coming to Washington to try to get a job with ISTI on the VTS contract (II:60, 62-63). Schaeffer had worked on the VTS planning phase (II:58). He talked to defendant several days before defendant went to Washington and encouraged him to get the job (II:69-70). Schaeffer also advised defendant to stop and check with the legal department to make sure there were no problems (II:70-71).

Schaeffer also testified that he has never doubted defendant's truthfulness or honesty (II:64). Schaeffer did not know anyone who had ever questioned defendant's truthfulness or honesty (II: 64). Defendant was surprised, shocked, and hurt that there was an investigation of his activity on behalf of ISTI (II:64).

Lieutenant Commander Wayne Gusman testified. He knew defendant for eighteen years and was a classmate at the Coast Guard Academy (III:126). He testified that a reservist is not a person on active duty and that SADT and TEMAC are both temporary situations (III:130). Gusman saw defendant doing work for ISTI on nights and weekends (III:133). O'Dell was a mentor to defendant and looked out and cared for him (III:133).

Gusman stated that defendant had an honorable reputation for being truthful and honest (III:134). That was also Gusman's personal opinion of defendant (III:134).

Defendant testified as well. Before he testified there were discussions about several legal issues. First, defendant made an offer of proof as to the substance of O'Dell's testimony that was excluded. The proffer, which was undisputed, was that O'Dell would have testified that he talked to a contracting officer and a legal officer from the Twelfth District (III:1) (APP:12). They advised O'Dell that a Reserve officer can participate in a presentation on behalf of a private company seeking a contract with the Coast Guard and that the officer could be compensated for doing so (III:2). O'Dell told defendant all this information (III:2).

The district court called this evidence irrelevant (III:3). The government also asked the district court to preclude the defendant from testifying about what O'Dell said, on relevance and hearsay grounds (III:3). The district court granted the government's request (III:3).

Defendant pointed out that in its opening statement the government told the jury defendant knew it was wrong and was misleading people about his status (III:3). Furthermore, the government asked its witnesses if defendant had informed them of his active duty status, and had presented Snook to show that he had told defendant not to participate (III:4). Thus, defendant needed to present evidence as to what O'Dell did and said to refute the government's evidence, and for the district court to rule it irrelevant was so prejudicial that defendant requested a mistrial, which was denied (III:4, 5). Defendant also stated that the evidence was relevant to his claim of entrapment by estoppel, which the district court stated it had earlier denied (III:5).

Defendant then testified. He graduated with honors from the Coast Guard Academy in 1975 (III:7). In 1980 he resigned his commission in the regular Coast Guard and went into the reserves as a lieutenant (III:8). Defendant then tried to get back on active duty, but could not because the Coast Guard was cutting back and had too many lieutenants (III:13). Defendant worked on a series of SADT and TEMAC orders starting in 1983 (III:10-13).

O'Dell called about the ISTI opportunity and said he had given defendant's name to ISTI (III:15). O'Dell said he could not take the job because he was regular Coast Guard, but defendant could because he was a Reservist (III:15). Dickerson subsequently called and asked defendant to send a resume, which he did (III:15). Dickerson then called to say defendant's resume looked good and ISTI wanted him to come to Washington for an interview (III:16). ISTI sent material about the VTS project to him (III:16). Defendant's supervisor and some of his co-workers told him to try to get the job (III:17-18).

Before going to Washington on July 2, 1985, defendant went to talk to Snook, to clarify what he could or could not do (III:17-18). ISTI had called and wanted defendant to go to Washington the next day (III:20-21). Defendant asked Snook if it was proper to try to get a position with ISTI, which was trying to get a contract with the Coast Guard (III:21). Snook said it was permissible to go and be reimbursed but defendant could not vouch for the Coast Guard by wearing a uniform or making a testimonial for ISTI on behalf of the Coast Guard (III:21). Defendant understood this not to be a blanket prohibition on his participation in any presentation, but rather that he could not appear as someone vouching for ISTI as a Coast Guard member or standing for the Coast Guard (III:22).

When defendant went to Washington he told Copeland and Dickerson that Snook had said defendant could take the job (III:23). Defendant told them he was a Reservist, as he thought it would be a misstatement to say he was on active duty, although he told them where he was working (III:23). Defendant went to the first brief meeting to see what was going on, and was reimbursed for his expenses (III:26).

After the first meeting defendant went back to Houston (III:29). He worked on the ISTI proposal on nights and weekends (III:30). Defendant called McKracken first for help and then asked if he was also interested in working on the project (III:32). McKracken said his fee was $50 an hour, plus expenses (III:34).

Defendant talked to O'Dell and Schaeffer about the position (III:35). The government objected to defendant testifying as to what he was told (III:35). Defendant indicated he thought he could testify about what steps he took in consulting and relying upon the information he received from O'Dell (III:35). The district court ruled that defendant could not testify what O'Dell said or what defendant felt, but could only testify what defendant did as a result of talking with O'Dell (III:36-37). The district court stated it was irrelevant what O'Dell said because Snook was defendant's legal officer (III:38). Defendant again made an offer of proof about what he would testify O'Dell told defendant, which was the same as the offer of proof made during O'Dell's testimony (III:39-40).

Before the August meeting defendant talked to O'Dell twice and relied very much on what he said (III:41). Defendant and McKracken came to meet with ISTI, and then to go to the meeting (III:42). McKracken said he had heard the Coast Guard was unhappy with ISTI and that it was a political mess (III:43). Defendant did not want to jeopardize his attempt to get back into the Coast Guard full-time, so he called McCarty in Miami (III:45). McCarty said not to worry, that there would be no retribution from the Coast Guard (III:47). Defendant told this to McKracken and they both went to the meeting with the Coast Guard (III:47). At the meeting, defendant thought his status was accurately described (III:49).

When defendant saw Opedal after the meeting defendant said he hoped he had not offended anyone (III:52). Defendant meant this in the sense that he knew ISTI's involvement was controversial and politically sensitive (III:52). After the meeting he filled out a voucher and got paid for his time and expenses (III:53-55).

About four months later Armenta came to interview defendant (III:58). Defendant told Armenta that Snook said not to vouch for the Coast Guard (III:60). Defendant told Armenta that it was not a misrepresentation to be introduced as a Reservist (IV:61). Defendant did tell Armenta that perhaps it was a mistake not to say defendant was on TEMAC or SADT, but that it was difficult to describe different status in the Coast Guard and defendant never meant to misrepresent anything (III:63-65). Defendant told Armenta defendant had made a mistake by not getting anything in writing saying he could participate (III:64).

E. The Closing Arguments

In its opening statement at the beginning of the case the government told the jury that defendant was a special government employee (OS:6). The government twice told the jury Copeland thought defendant was a Reservist, and that when Copeland asked defendant about a conflict of interest, he said he had checked and there was no problem (OS:10-12). The government further stated that Copeland had no idea defendant was on temporary active duty (OS:12). The government told the jury Dickerson would testify to similar facts (OS:12-13). The government told the jury McCarty would testify that defendant was presented as a Reserve officer (OS:15).

The government also described in its opening in some detail what Snook's testimony would be (OS:16-17). After describing Snook's testimony, the government said it would "show Mr. xxxxxx was on notice there are some problems in this area and he'd better be careful . . . and that, recklessly, he proceeded anyway" (OS:17). The government added that defendant "had the opportunity to get good legal advice and he passed it up" (OS:17). The government further stated that defendant "didn't make full disclosure of what his role was" (OS:17).

In its opening the government also previewed Armenta's testimony (OS:19-20). The government stated that his testimony would "show that defendant knew what he was doing was forbidden" (OS:19).

Defendant devoted a major portion of his closing argument to the fact that he had not consciously or intentionally misled anyone (CAJI:17-34). In its rebuttal, the government stated that consciousness of wrongdoing was not an issue and it was not an element whether defendant intended to mislead anyone (CAJI:35, 37). The government then went on to claim that defendant had the "opportunity and ability time after time to ensure that his conduct did not violate the law" (CAJI:40). The government told the jury that Copeland, Dickerson, and Schaeffer all asked about the possibility of conflict of interest (CAJI:40-41). The government stated that although defendant was on notice he never went back to Snook to get more advice (CAJI:42-43). The government further claimed that defendant had not sufficiently checked out the propriety of his actions. These arguments are addressed in more detail below. The district court refused to hear the grounds for repeated attempts to object made by defendant during the government's rebuttal.

F. Instructions

The district court gave the jury the following instructions with regard to the elements of the offense:

Now, the defendant has been charged with violating the federal conflict-of-interest statute set forth in Sections 203(a) and (c) of Title 18, United States Code. This statute prohibits an employee of the government from receiving and agreeing to receive compensation from a non-government source for services he or she performed or agreed to perform in a private contract with the government while he or she was employed by the government.

The essential elements of this offense, as described in the indictment, each of which the government must prove beyond a reasonable doubt, are as follows: (1) that on or about August 9, 1985, the defendant received or agreed to receive compensation for services from ISTI in addition to or apart from his public compensation for his official duties with the United States Coast Guard for services rendered or to be rendered by him, (2) that these services were rendered or to be rendered at a time when the defendant was a special government employee of the United States Coast Guard, of the United States Department of Transportation, and had served as a special government employee for more than 60 days in the preceding period of 365 days; and (3) that these services rendered or to be rendered by the defendant for ISTI related to or involved a government contract before the United States Department of Transportation or an officer thereof in which the United States was a party and had a direct and substantial interest.

I will now define the terms that you must consider with respect to this indictment.

Now, in this case, if the defendant was on duty for training as a member of the United States Coast guard on August 9, 1985, you may find that he was then and there a special government employee, regardless of whether he was on special duty status, under an appointment such as SADT or TEMAC, if such an appointment was not to exceed 130 days.All crimes require some kind of intent. "Intent" means the person had the purpose to do a thing. It means that he or she acted with the will to do a thing. It means that he or she acted consciously and voluntarily, and not inadvertently or accidentally. Some criminal offenses require a general intent and other require a specific intent. This offense requires only a general intent, and this means that if you find the defendant knowingly committed the act that the law here involved makes a crime, you may infer his intent to commit the offense from the fact that he did the illegal acts.

Now, the law recognizes that intent is a state of mind. As such, intent cannot ordinarily be proved directly because there is no way of directly and positively ascertaining the operations of the human mind. Accordingly, the law permits you to infer the defendant's intent from the surrounding circumstances. You may consider any statement made and act done or omitted by the defendant and all other circumstances and facts properly in evidence which indicate his state of mind.

Now, before leaving this matter of intent, I have a duty to remind you that in the context of this case, because the federal conflict-of-interest statute is a general-intent statute, consultation with lawyers or even ignorance of the existence of this statute and its commands is not a valid defense to the crime charged.



(CAJI:59-63).

G. Post-Trial Motions

 

After the conclusion of the trial defendant filed a motion for judgment of acquittal. He raised several arguments, three of which were addressed and rejected by the district court. The first ground was that the district court failed to properly instruct the jury on the mens rea required for culpability. The district court examined the statute and found that the word "knowingly" was properly omitted from the elements of the offense instruction, but even if some instruction including "knowingly" was required, it was sufficiently covered in the instruction regarding the intent required. 778 F.Supp. at 536-537.

Next, the district court found it had properly excluded evidence the defendant wished to present to rebut the government's evidence of defendant's consciousness of wrongdoing. The district court found such evidence was irrelevant and would not have provided a defense to a general intent crime. Id. at 537.

Finally, the district court found that comments by the prosecutor in the rebuttal argument suggesting that defense counsel was misleading the jury, were, whether invited or not, harmless error. Id. at 538. The district court did find that it was improper for the government in its rebuttal argument to read from a transcript that had not been admitted into evidence. The district court also found this to be harmless error, however. Id. at 538-539.

Defendant was subsequently sentenced and filed a timely notice of appeal. While the direct appeal from the conviction was pending, defendant on May 24, 1991, filed a motion for a new trial, pursuant to Fed.R.Crim.P. 33. This court suspended the briefing schedule pending resolution of the motion. Defendant argued that newly discovered evidence showed that he was not on SADT during the time in question, and that the personnel forms introduced by the government at trial were incorrect. Those forms were obsolete and new forms had been issued to reflect changes in the Reserve programs. As a result of defendant's inquiry, the Coast Guard determined that in fact defendant was on TEMAC, in August 1985 which was defined as "full-time duty, on a voluntary basis, under 10 U.S.C. 672(D) for other than training or reserve program project" (APP:7-8). The TEMAC period was for 69 days. Defendant claimed this took him out of the class of persons defined in the statutory provisions as a special government employee.

The district court, in an opinion issued on November 12, 1991, found that even if defendant was not a special employee as a result of the new orders, then he was an officer or employee of the United States within the statute. 778 F.Supp. at 542-543. The district court further found that although the evidence at trial and the court's jury instructions focused on the special government employee classification, a new trial would have the same result because defendant was an officer of the United States, and thus would have been convicted on that basis. Id. at 544.

As discussed above, defendant did not file a notice of appeal from the denial of the new trial motion until January 29, 1992. Defense counsel stated in a motion to reissue the order denying the new trial that he did not realize that a separate notice of appeal should be filed, but that he thought he could simply raise the issues in the appeal that had already been filed (APP:47).

Subsequently, this court appointed the Federal Public Defender to be defendant's counsel on appeal. The appeal was held in abeyance while defendant then filed a new motion in district court seeking relief from trial counsel's failure to file a notice of appeal on the grounds that prior counsel was ineffective for failing to file a timely notice. On January 27, 1993, the district court denied this request finding that defendant could not raise a claim of ineffective assistance of counsel because he had no Sixth Amendment right to counsel for the new trial motion.

DISCUSSION





SUMMARY OF ARGUMENT


Defendant is raising several issues. First, he contends the evidence was insufficient because the government never proved all the elements of 18 U.S.C. 203. These included that the matter was pending before the Coast Guard at the time defendant participated in the meeting in August, 1985, and that defendant's temporary position was included within the persons subject to the statute.

Second, defendant asserts that the statute should be interpreted to include a mens rea requirement that defendant knew he was subject to the statutory provisions. If this is not done, then defendant argues that the statute is unconstitutionally vague as applied.

Third, defendant believes he should have been allowed to present a defense of reliance upon an official misstatement of the law. Defendant's conduct met all the requirements for asserting such a defense.

Fourth, defendant claims that the district court improperly excluded evidence concerning defendant's state of mind. This evidence was particularly important because the government had devoted a major portion of its case to testimony about defendant's state of mind.

Fifth, defendant contends that the prosecutor's rebuttal argument was highly improper and prejudicial. It was all the more offensive by telling the jury that defendant had not done certain things, when in fact the government knew he had. The district court ignored defendant's objections and issued no curative instructions.

Sixth, defendant asserts that the jury instructions were incorrect. The elements of the offense were not properly set forth, and the instructions confused different elements of the various subsections of the statute.

Finally, defendant contests the district court's decision not to grant a new trial on the basis of newly discovered evidence. That evidence showed that the Coast Guard had changed defendant's status at the time of the alleged offense from what the government at trial had presented it as being. As part of this argument, defendant contends that he was not required to file a new notice of appeal from the denial of that motion.

I. THE GOVERNMENT FAILED TO PROVE ALL THE ELEMENTS OF AN OFFENSE UNDER 18 U.S.C. 203

The confusing nature of the superseding indictment complicates the analysis of the issues raised by the defendant. That indictment alleges that defendant was an officer and employee and a special government employee. The statute, 18 U.S.C. 203, however, distinguishes between officers and employees on the one hand and special government employees on the other. Under 203(c) the matters in which special employees may not participate are more narrowly defined. The proof in the case was solely devoted to the proposition that defendant was a special employee. The government so stated in its opening statement (OS:6), its response to defendant's motion for judgment of acquittal (II:26), and its closing argument (CAT:9), and the jury instructions were devoted to that proposition. In addition, the indictment charged a violation of 203(a) & (b)(2). Subsection (b)(2) did not exist at the time defendant allegedly committed the offense.

Defendant first contends that no evidence was presented to satisfy the requirement of 203(c)(2) that the matter was pending in the Coast Guard. The statute gives no definition of what "pending" means. The proof at trial was very unclear about the status of VST. The Coast Guard was preparing a solicitation to advertise for bids for the proposal. The Small Business Administration wanted ISTI to be able to get the contract as a minority set-aside. The contract eventually was opened to competitive bidding and bids were received but the contract was never awarded due to funding constraints. It is unclear whether the matter was then pending when ISTI made its presentation. It is clear that the government failed to prove this element of the offense.

Furthermore, defendant contends that his particular status was not within the statutory definition of a special government employee. The statute seemingly did not match up to the various kinds of Reserve duty which have evolved since the passage of the statute. Another problem is that, other than 202, there is no definition provided of who is an officer or employee of the United States. Under the general definition of special employee in 202, defendant did not qualify because he had served more than 130 days during the 365 day period preceding August 9, 1985.

Congress did address the situation of Reserve officers in 202, classifying them as officers of the United States or special employees, depending upon their status. Defendant does not come within any of these classifications. Even under the evidence presented at trial, he was not on active duty solely for training. In fact, he was not getting any training. He was not voluntarily serving a period of extended active duty in excess of 130 days on August 9, 1985, for he was then serving a 69-day period of SADT. (4) Defendant was not serving involuntarily. Thus, he did not fit within any of the definitions of 202.

There was absolutely no proof presented at trial or any instructions given to the jury as to what else might put someone within the category of special employee or officer or employee. Therefore, defendant's conviction should be reversed on the ground that the evidence was insufficient.

II. THE STATUTE, 18 U.S.C. 203 REQUIRES THAT DEFENDANT KNOW HE WAS A PERSON COVERED BY THE STATUTE; OTHERWISE THE STATUTE IS UNCONSTITUTIONALLY VAGUE AS APPLIED IN THIS CASE

Defendant submitted two proposed jury instructions regarding his state of mind (APP:23). These instructions requested the district court include as an element of the offense that defendant knew he was a special employee covered by 203. The other instruction dealt with the government's failure to follow its regulations concerning special employees. The district court rejected these instructions, and defined the crime for the jury as one of general intent. The district court also rejected defendant's post-trial motion that the instructions failed to adequately define the degree of knowledge required to violate the statute. 778 F.Supp. at 535-536.

However, the superseding indictment specifically charged the defendant with knowingly receiving the money otherwise than as provided by law. Thus, the grand jury included defendant's specific intent as an element of the crime. Regardless of the merits of the issue, therefore, in the present case defendant was charged with knowing his conduct violated the law.

Defendant recognizes that courts have held that for non-elected officials specific intent is not an element of 203(a). See United States v. Evans, 572 F.2d 455, 481 (5th Cir. 1978). The difference between specific and general intent generally "is the element of bad or evil purpose which is required for the former." United States v. Haldeman, 559 F.2d 31, 114 n.226 (D.C. Cir. 1976) (en banc). In Evans, the court defined the gravamen of a 203(a) offense as "not an intent to be corrupted or influenced, but simply the acceptance of an unauthorized compensation." 572 F.2d at 481. The phrase "otherwise than as provided by law" prescribes a lower degree of criminal intent than a requirement that the defendant act corruptly. United States v. Brewster, 506 F.2d 62, 72 (D.C. Cir. 1974). Defendant believes, however, that none of these cases address the present situation where the government charges a defendant with being a special employee and it is unclear to the defendant whether the statutory prohibition applies. This point is especially important given the government's failure to follow its own regulations in the present case.

This circuit has expressed its presumption that mens rea is required for criminal liability. United States v. Nofziger, 878 F.2d 442, 452 (D.C. Cir. 1989). The offense charged in the present case, just like the offense charged in Nofziger, is not so inherently dangerous as to warrant strict liability. Id at 453.

It is true that, unlike the offense in Nofziger, 203(a) does not contain the word "knowingly". It is also true that 203(b) does contain the word "knowingly". This distinction between subsections (a) and (b) was relied upon by the district court in determining that a knowing violation of 203(a) was not required. 778 F. Supp. at 536-537. The legislative history reveals no such purposeful distinction, however. See S. Rep. No. 2213, 87th Cong., 2d Sess. (1962), reprinted in 1962 U.S.C.C.A.N. 3852. Defendant contends that for convictions under this statute the government must prove that defendants have knowledge that their status subjects them to the provisions of the statute. Because no such showing was made in the present case, defendant contends his conviction should be reversed.

Defendant further contends that if the statue is not construed to require knowledge of coverage under the statute, then it is void for vagueness as applied to the facts of this case. A statute is unconstitutionally vague if it "does not give fair notice of the conduct it prohibits." United States v. Lancaster, 968 F.2d 1250, 1253 (D.C. Cir. 1992). "The imposition of criminal liability for behavior which a person could not reasonably understand to be prohibited offends the rudimentary considerations of fairness." Ricks v. District of Columbia, 414 F.2d 1097, 1101 (D.C. Cir. 1968). The statute need not be so vague that it is "unconstitutionally vague as applied to all conduct." United States v. Poindexter, 951 F.2d 369, 385 (D.C. Cir. 1991), cert. denied, 113 S.Ct. 656 (1992).

The facts of the present case present a compelling picture of a person unable to determine if his conduct came within the statute. The government, as discussed below, ignored its own regulations to advise defendant about his status. The temporary duty orders were issued on obsolete forms. As discussed above, the indictment was very confusing, and the government's theory of the case changed at times. The instructions were also very confusing, and did not contain all the elements of the offense. Defendant was assured by his mentor, who had checked with experts, that his conduct was lawful. As argued above, defendant contends the statute does not even cover his conduct, and that the statute did not conform to the changes that had occurred in different kinds of temporary duty of Reservists. Defendant could not have reasonably understood that his behavior was prohibited at the time it occurred.

III. DEFENDANT SHOULD HAVE BEEN ABLE TO PRESENT A DEFENSE OF RELIANCE UPON OFFICIAL MISSTATEMENT OF THE LAW

Before trial defendant filed a motion to dismiss the charges because the government had failed to follow its own regulations. On May 8, 1965, Executive Order No. 11222 was issued by the President. Part Three set forth standards of ethical conduct for special government employees as the term was defined in 18 U.S.C. 202. Section 306 of Part Three of the Executive Order requires that each agency, at the time of employment of a consultant, advisor, or other special government employee, require that person to supply the agency with a statement of all other employment and such other financial information as deemed relevant. The statement must be kept current throughout the period during which the employee is on the government roles.

Part VII, section 701, authorized and directed the Civil Service Commission to issue appropriate regulations and instructions implementing the Executive Order. Pursuant to its authority under Executive Order 11222, the Civil Service Commission issued regulations directing that each department or agency, in obtaining the services of special employees, should, at the time of original appointment, instruct the special employees that they are regarded as subject only to the restrictions of 18 U.S.C. 203. Appendix C of Civil Service Federal Personnel Manual System on Special Government Employees, reprinted in 49 C.F.R. Part 99, App. D, p. 289.

The government did not dispute that it failed to follow these regulations with respect to Mr. xxxxxx. The government objected to defendant presenting any evidence of this on the basis that it was irrelevant, and the district court agreed (MIL:21). Defendant had wanted to present the evidence to rebut the government's claim that defendant had notice that his conduct violated the statute.

As discussed above, the district court also refused to allow in evidence what O'Dell had been told by a legal officer and a contracting officer about the propriety of defendant's actions and what O'Dell told defendant about that. Besides the reasons discussed above, defendant wanted to introduce this evidence in support of a defense of entrapment by estoppel, which the district court refused to allow (MIL:5). The court instructed the jury that because the crime was one of general intent, consultation with lawyers or ignorance of the law was no excuse.

In essence, defendant wanted to present a defense of reasonable reliance upon an official misstatement of the law. As the Fifth Circuit stated in United States v. Clark, 546 F.2d 1130, 1135 (5th Cir. 1977):

The government may not "actively mislead" someone by authoritatively assuring him that an action is proper and, then, prosecute him for that action. Raley v. Ohio, 360 U.S. 423, 79 S.Ct. 1257, 3 L.Ed.2d 1344 (1959). "Ordinarily, citizens may not be punished for actions undertaken in good faith reliance upon authoritative assurance that punishment will not attach." United States v. Laub, 385 U.S. 475, 487, 87 S.Ct. 574, 581, 17 L.Ed.2d 526 (1967).

This court addressed a similar issue in United States v. Barker, 546 F.2d 940 (D.C. Cir. 1976). Judge Merhige's opinion set out a strict standard for evaluating such claims:

In my view, the defense is available if, and only if, an individual (1) reasonably, on the basis of an objective standard, (2) relies on a (3) conclusion or statement of law (4) issued by an official charged with interpretation, administration, and/or enforcement responsibilities in the relevant legal field. The first three issues are of course of a factual nature that may be submitted to a jury; the fourth is a question of law as it deals with interpretations of the parameters of legal authority.

Id. at 955.

Defendant contends he has met this strict standard in the present case. In any event the district court never made any ruling on the fourth part of the test. The district court refused to allow either O'Dell or defendant to testify about the circumstances under which O'Dell sought and received advice. The undisputed offer of proof stated that O'Dell had consulted both a Coast Guard legal officer and a Coast Guard contracting officer. Both of these officers would seemingly satisfy the fourth requirement of Judge Merhige's opinion.

The circumstances of this case are particularly compelling for such a defense. O'Dell, who was on active duty himself and was defendant's mentor and former supervisor, originally suggested defendant try to get the job, and then assured him it was legally proper to participate in the presentation. The government did not follow its own regulations in advising defendant of his status. Even the government and the trial judge were confused as to exactly what was required to be proven. The indictment charged defendant with a specific intent crime. For all these reasons, defendant contends the district court improperly excluded his defense of reliance upon an official misstatement of the law.

IV. THE DISTRICT COURT IMPROPERLY EXCLUDED DEFENSE EVIDENCE CONCERNING DEFENDANT'S STATE OF MIND

The government devoted the major portion of its opening statement to claims that the defendant had misrepresented his status and had ignored the advice of Snook. Almost every witness was asked in detail about how defendant described his status. Snook was called to testify about what guidance defendant sought before the July meeting, what defendant told Snook, and what advice Snook gave defendant. The government also introduced the testimony of Armenta about the interview with defendant several months after the event. Thus, at every opportunity the government portrayed defendant as misrepresenting his status to everyone and deliberately deceiving and ignoring Snook.

Then, in a true display of hypocrisy, the government objected on hearsay grounds when O'Dell attempted to testify as to what he was told when he checked with his legal and contracting officer and what he told defendant in this regard. Defendant argued that it was not being presented for the truth of the matter, but rather to show defendant's state of mind and to rebut the allegations that defendant had been told not to participate in a presentation.

The evidence was not hearsay. Its purpose was to show what defendant was told and to show his state of mind and understanding, not for the truth of the matters asserted. It was crucial evidence to rebut the government's constant claim that defendant acted in a deceitful way and did not seek any advice. It was also important given that the indictment charged that defendant knowingly received compensation otherwise than as provided by law.

Even if it was hearsay, the government opened the door to its admission by its constant introduction of the above described evidence. (5) Much of that evidence was introduced in the same manner in which defendant moved to introduce evidence of his state of mind, by testimony of out-of-court statements. Thus, as this court has stated, "the introduction of inadmissible or irrelevant evidence by one party justifies or `opens the door to' admission of otherwise inadmissible evidence." United States v. Brown, 921 F.2d 1304, 1307 (D.C. Cir. 1990).

As discussed above, defendant does not believe his proposed evidence was either inadmissible or irrelevant. If it was, however, the government's repeated introduction of such evidence justified defendant's attempts to rebut it. (6)

V. THE GOVERNMENT'S CLOSING ARGUMENT WAS IMPROPER AND HIGHLY PREJUDICIAL

The government's rebuttal portion of its closing argument was replete with blatant false statements. The government told the jury that McKracken raised questions in the defendant's mind about the propriety of the conduct and that he had "even then a last chance to think about it, to sit back and say, `am I conforming my conduct as a government employee to the commands of law, to the requirements of law? Am I doing that?' And he didn't do it. He didn't do it" (CAJI:43). Shortly afterwards the prosecutor told the jury that "there were sufficient opportunities for David xxxxxx, if he wished, if he was cautious, to try to conform his conduct to the requirements of law, and he didn't do it. He didn't check it out" (CAJI:44).

The prosecutor's repeated statements that defendant did nothing to check it out were false and the prosecutor knew they were false. Defendant had checked out McKracken's concerns with McCarty. Several times during the trial the defendant tried to introduce evidence that O'Dell, who was defendant's mentor, had checked the propriety of defendant's actions for him and as to what O'Dell had been told and what he told defendant. Each time the government objected and the district court kept out the evidence. For the government to then tell the jury that defendant had not made any attempt to check out his actions is mendacity at its worst.

The government then, as the district court found, 778 F.Supp. at 538, improperly read from a portion of a transcript. That was never admitted into evidence, although the government falsely told the district court that it had been (CAJI:46). In reading from the transcript, the government misquoted it and then referred to evidence that was not in the record.

Apparently not content with these falsehoods, after the district court told the government its time was up, the government told the jury one more:

At that point, ladies and gentlemen, the most telling evidence in this case, Mr. Copeland, who's been dealing with David xxxxxx, and only with David xxxxxx, as to his status says, "But as a private contractor to the Coast Guard," and again he says but the work he's doing now he's doing as a private contractor. That's what Mr. Copeland said in the meeting.

(CAJI:48). Copeland testified that he dealt with Lisa Dickerson on this matter as well. He did not testify as to whether he talked with anyone else, and certainly never testified that he dealt only with defendant. The defendant testified that he had no idea what Copeland meant or where he got that information. Thus, the government falsely implied to the jury that the information could have only come from the defendant.

The defendant's repeated attempts to object to these improper arguments were rebuffed by the district court, which gave defendant no opportunity to explain the grounds of his objections. The district court even told defense counsel to sit down (CAJI:47), and gave no curative instructions.

This court recently characterized as "clearly improper" remarks by the prosecutor referring to facts not in evidence. United States v. Teffera, 985 F.2d 1082, 1089 n.6 (D.C. Cir. 1993). See also United States v. Foster, 982 F.2d 551, 555 (D.C. Cir. 1993). The remarks in the present case went far beyond Teffera and Foster, for several of them in the present case could be nothing other than deliberate falsehoods. Indeed, they constituted the major portion of the government's rebuttal closing argument, which makes them even more damaging and prejudicial, as defendant had no opportunity to respond. Not only were no curative instructions given, but also the district court chided defense counsel for making proper objections.

VI. THE DISTRICT COURT'S INSTRUCTIONS DID NOT SET FORTH THE ELEMENTS OF THE OFFENSE

Reflecting how complicated the statutory scheme is, the district court's instructions defined the offense by mixing and confusing different parts of the statute. It is thus not surprising that defendant may not have known whether he was violating the statute. In any event, the district court's instructions never did correctly state the elements of the offense and could not have done anything but confuse the jury. In fact, several aspects of the instructions were contrary to the statute.

The district court recognized that the trial focused on defendant's status as a special government employee, "and the jury was instructed on that basis." 778 F.Supp. at 544. Indeed, the second element of the offense as defined in the instructions, was that defendant was a special government employee when he appeared on behalf of ISTI. The instruction, however, contained no requirement that the jury find that the "particular matter . . . is pending in the department of agency of the Government in which he is serving." That is the specific provision of 203(c)(2) that defendant was charged with violating, yet the jury was never instructed about it. Indeed, subsection (c) is the only portion of the statute subjecting a special employee to its requirements. In the present case, subsection (c)(2) was the only possible basis of liability. As discussed above, it is unclear whether the VTS matter was then pending before the Coast Guard. Even if the court determines it was pending, though, the jury was never instructed on this essential element.

The instructions also stated that "a special government employee in the context of this case is an officer or employee of the executive branch of the United States government if he is or has been employed by the government on a full-time or an intermittent or part-time basis for a period not to exceed 130 days" (CAJI:60). This omits the requirement of 202(a) that the 130 days be during any period of 365 consecutive days. Under the correct statement of this portion of the 202(a) definition, defendant was not a special government employee because he had been employed for more than 130 days during the 365 days preceding August 9, 1985.

The instruction also told the jury "if the defendant was on duty for training as a member of the United States Coast Guard on August 9, 1985 you may find that he was then and there a special government employee, regardless of whether he was on special duty status, under an appointment such as SADT or TEMAC, if such an appointment was not to exceed 130 days" (III:60). This is confusing and incorrect. Section 202(a) classifies Reservists as special employees when they are on active duty solely for training. The word "solely" was omitted from the instruction. Not only did the government's own evidence show that defendant was not on duty solely for training, but also it showed he was not receiving any training at all. In addition, there is no requirement that the appointment not exceed 130 days under this definition of a special government employee. The instructions also told the jury that it was a general intent crime. Yet the indictment charged a specific intent. Thus, the jury instructions also impermissibly amended the indictment.

In addition, as discussed above, the district court refused to instruct the jury that defendant had to know the money was received otherwise than as provided by law. The indictment charged this specific intent, and the defendant requested a specific intent instruction.

Defendant recognizes that some of the specific objections to the jury instructions set forth in this brief were apparently not raised at trial, and therefore are reviewed under the plain error standard. United States v. Lawton, 995 F.2d 290, 294 (D.C. Cir. 1993). The jury instructions in the present case were very confusing. The correct elements of the offense never were defined, and it is entirely possible that defendant was convicted of conduct that was not even criminal or that constituted a different offense than the one for which he was indicted by the grand jury. This is sufficient to meet the plain error test. Id.

VII. THE DISTRICT COURT SHOULD HAVE GRANTED A NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE

Two circuits have held that, although it is clearly better practice to do so, no new notice of appeal has to be filed from the denial of a timely filed motion for a new trial based on newly discovered evidence, if a timely notice of appeal was filed from the original conviction and was pending at the time of the district court's denial. United States v. Wilson, 894 F.2d 1245, 1251-52 (11th Cir.), cert. denied, 110 S.Ct. 3284 (1990); United States v. Burns, 668 F.2d 855, 858 (5th Cir. 1982). The Burns court found no requirement in either Fed.R.Crim.P. 33 or Fed.R.App.P. 4 for the filing of such a second of appeal. Id. The Wilson and Burns courts agreed that a second notice of appeal was really a notice requirement and held that the briefs could serve as a substitute for a separate notice of appeal. Wilson, 894 F.2d at 1252; Burns, 668 F.2d at 858. Both courts also relied upon the fact that the government was not prejudiced by the failure to file the second notice of appeal. Wilson, 894 F.2d at 1252; Burns, 668 F.2d at 858.

The above reasoning is particularly applicable to the present case. The original appeal was held in abeyance pending a decision on the new trial motion. The motion was thoroughly briefed before the district court. Defendant also made attempts to file a new notice of appeal from the denial of the motion. It was thus clear to the government defendant intended to raise the grounds set forth in the new trial motion in the pending appeal. This brief therefore serves as an adequate substitute for a second notice of appeal and the government has clearly suffered no prejudice from the failure to file a second notice of appeal.

As part of his new trial motion, defendant attacked the notification from the Coast Guard that the two sets of orders that were introduced into evidence should have indicated that defendant was on TEMAC, not SADT (APP:8). Because the orders were for two different projects they were individual periods of TEMAC, not combined into one active duty period. This erased any doubt about whether defendant was a special government employee, for then he clearly did not fit within the definition of 202.

In order to prevail upon a motion for a new trial based upon newly discovered evidence a defendant must show:

(1) the evidence must have been discovered since the trial; (2) the party seeking the new trial must show diligence in the attempt to procure the newly discovered evidence; (3) the evidence relied on must not be merely cumulative or impeaching; (4) it must be material to the issues involved; and (5) of such nature that in a new trial it would probably produce an acquittal.United States v. Lafayette, 983 F.2d 1102, 1105 (D.C. Cir. 1993). The district court gave defendant the benefit of the doubt on the first two requirements and reached the merits of the issue. 778 F.Supp. at 542 n.3.

The new evidence showed that defendant was not on SADT at the relevant time, but was in fact on TEMAC for 69 days. As discussed above, this seemingly takes defendant out of the statutory provisions. The district court concluded that if defendant was on TEMAC then he was an officer or employee of the United States and would have been found guilty in any event. 778 F. Supp. at 544. This is incorrect because no evidence was introduced as to what constitutes an officer or employee for purposes of the statute, nor does the district court cite any authority that TEMAC status would make a person an officer or employee. Thus, defendant contends that the motion for new trial should have been granted.

CONCLUSION

Defendant respectfully requests this Court reverse his conviction for insufficiency of the evidence. If the Court disagrees with this claim, for all the reasons discussed above, defendant respectfully requests that his conviction be reversed on each and every ground set forth.


Respectfully submitted,





A. J. KRAMER

FEDERAL PUBLIC DEFENDER

625 Indiana Avenue, N.W.

Suite 550

Washington, D.C. 20004

(202) 208-7500

CERTIFICATE OF SERVICE





I HEREBY CERTIFY that two copies of the foregoing Brief of Appellant and one copy of the Appendix of Appellant were on this 22nd day of October, 1993, personally served upon John R. Fisher, Chief, Appellate Division, United States Attorney's Office, Room 4229, 555 Fourth Street, N.W., Washington, D.C. 20001.







A. J. KRAMER



1. "APP" refers to the Appendix filed with this brief. The trial transcript is referenced by volume number; "MIL" refers to the motion in limine hearing before trial; "OS" refers to the opening statements; and "CAJI" refers to the closing arguments and jury instructions.

2. There was no subsection (b)(2) to 203 in August, 1985, the time when defendant allegedly committed the offense. The proper charge was subsection (c)(2), which is the manner in which the indictment was interpreted by everyone during the trial. In 1989, when the superseding indictment was filed, subsection (b)(2) would have been the applicable section. Subsequently, it has been changed back to (c)(2) again. Defendant is not raising any claim on appeal concerning this mistake.

3. Because the events occurred in 1985, the sentencing guidelines were not applicable to the case.

4. As discussed below, defendant's orders were later changed to correct his status, which was actually TEMAC.

5. At one point the district court indicated it was excluding the evidence because Snook was defendant's legal officer. There was no evidence presented that defendant could only consult Snook.

6. As discussed below, the excluded defense evidence became even more important when the government falsely told the jury in its rebuttal argument that no such evidence existed.