IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT



No. xxxxxx (consolidated with Nos. xxxxxx and xxxxx)

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UNITED STATES OF AMERICA, Plaintiff-Appellee,



v.



ELLIS xxxxxx, ET AL., Defendants-Appellants.



______________________________________________________________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

______________________________________________________________________________



BRIEF FOR APPELLANTS



JURISDICTION


The district court had jurisdiction under 18 U.S.C. 3231. Each appellant's notice of appeal was filed within the ten-day period permitted by Fed. R. App. P. 4(b). This Court has jurisdiction under 28 U.S.C. 1291. (1)

STATEMENT OF THE CASE

A. Nature of the Case, Course of Proceedings, and Disposition in the Court Below.

Defendant-appellants Ellis xxxxxx, Leon xxxx, and Darryl xxxxxx were motor vehicle inspectors charged with violations of the United States Code and District of Columbia Code in a second superseding indictment ("indictment"). J.A. 68. (2) The indictment charged appellants under 18 U.S.C. 371 with conspiring to take bribes in return for inspection stickers in violation of 18 U.S.C. 201(b)(1)-(2). J.A. 71. xxxxxx and xxxx were charged with single violations of 201(b)(2) and xxxxxx was charged with three violations of that statute. J.A. 68. The indictment also charged xxxxxx with two counts of forgery, xxxx with five counts of forgery, and xxxxxx with nine counts of forgery in violation of D.C. Code 22-3841, 3842(a). J.A. 68.

Appellants moved to dismiss on the ground that the district court lacked subject matter jurisdiction. J.A. 119. Appellants contended that 201(b)(2), as applied to D.C. public officials, was supplanted by a statute passed in 1982 by the D.C. Council and approved by Congress (codified at D.C. Code 22-712), pursuant to the constitutional power contained in article I, section 8, clause 17, and delegated by Congress in the Home Rule Act of 1973. J.A. 121. Because the indictment otherwise charged only D.C. Code offenses and a 371 conspiracy to violate 18 U.S.C. 201(b)(1)-(2), appellants maintained that no independent basis for federal jurisdiction existed. J.A. 189.

Before the district court ruled on the motion, xxxxxx pled guilty to a violation of 201(b)(2). J.A. 172. As part of the plea agreement, xxxxxx reserved the right to challenge the district court's jurisdiction. Tr. 11/17:5. It was understood that xxxxxx' liability for relevant conduct would be limited to $70,000.00 for purposes of calculating loss under the United States Sentencing Guidelines ("U.S.S.G."). It was also understood that the government would not be relieved of its burden of proving relevant conduct. Tr. 11/17:7-9.

On November 25, 1998, the district court denied the motion to dismiss. J.A. 189. Although the district court agreed that federal jurisdiction rested on 201(b)(2), J.A. 189, it did not reach appellants' contention that the statute had been the subject of a pro tanto repeal. J.A. 196. Instead, the district court ruled that the D.C. Council, under D.C. Code 1-233(a)(3), lacked authority to repeal 201(b)(2) as applied to D.C. public officials. J.A. 196. xxxx and xxxxxx filed a motion for reconsideration of the district court's ruling. J.A. 198. The motion was denied. J.A. 204.

The trial of xxxx and xxxxxx began on December 1, 1998. J.A. 19. On December 14, 1998, the government rested. Tr. 10:210. The defendants' case consisted of moving exhibits into evidence that were marked for identification during the government's case-in-chief. Tr. 11:56. On December 18, 1998, the jury acquitted xxxxxx on the conspiracy count and eleven other counts, convicting him only on the bribery charge in count 7. J.A. 23, 211. The jury acquitted xxxx on six counts, convicting him only on the conspiracy charge. (3)

Again asserting that the district court lacked jurisdiction, xxxx and xxxxxx moved to arrest judgment. J.A. 25. The district court again ruled that the D.C. Council lacks power to repeal 201(b)(2) as applied to D.C. public officials. J.A. 251. xxxxxx also moved for judgment of acquittal on count 7 and moved for a new trial in the alternative. J.A. 25. The district court denied both of those motions. J.A. 238.

There were a number of disputed sentencing issues. On February 19, 1999, the district court held an evidentiary hearing concerning xxxxxx. Tr. 2/19. On March 19, 1999, the district court held an evidentiary hearing concerning xxxx and xxxxxx. Tr. 3/19. xxxxxx was sentenced on March 30, 1999 to a 20-month term of imprisonment. J.A. 220. On July 20, 1999, xxxx was sentenced to a 29-month term of imprisonment and xxxxxx was sentenced to a 46-month term. J.A. 255, 261. All defendants filed timely notices of appeal. J.A. 237, 267, 268.

B. Facts.

1. The District of Columbia Vehicle Inspection Process.

The indictment in this case resulted from a joint investigation by the Federal Bureau of Investigation and the Metropolitan Police Department's Office of Internal Affairs of corruption in the District's taxicab industry and vehicle inspection process. Tr. 5:59. Vehicle inspections in the District are regulated by the District of Columbia government. Tr. 3:80-81. Vehicles registered in the District must be inspected at vehicle inspection stations on a periodic basis. Tr. 3:85-86. Taxicabs must be inspected every six months. Tr. 3:86. There are two vehicle inspection stations in the District. One was located on West Virginia Avenue, Northeast, and the other one is in Southwest. Tr. 3:82. Vehicle inspectors are employees of the District's Department of Public Works. Tr. 2B:71. Each inspector is assigned a hand-held metal punch with a particular two-digit number. Tr. 3:93.

The indictment concerned the Northeast inspection station. J.A. 94. (4) There are three posts in the inspection process and the inspectors generally may work at each post. The first post is an entrance booth, where an inspector (known as a "writer," Tr.2B:75) prepares an inspection card when a vehicle arrives. Tr. 2B:73; J.A. 273. The writer checks the tags, registration, and related documents. Tr. 3:83. There are spaces on the card for the vehicle's tag number and vehicle identification number ("VIN"). Tr. 3:97. When the computer system is working, the tag number and VIN are printed on the card by a computer printer. Tr. 2B:73. Otherwise, the inspector writes the tag number and VIN on the card. Tr. 2B:73. The card also contains a boxed area (block number one) in which the writer punches his number. Tr. 3:102. (5) The writer also hand-writes the name of the taxicab and the taxicab number on the card. Tr. 3:101.

Once a taxicab passes through the entrance booth, it goes to the inspection post known as the "lane." Tr. 2B:77. There are four inspection lanes. Tr. 2B:77. On the lane, there are two or more inspectors in a "crew," who are required to perform an inspection of the vehicle concerning ten separate areas (lights, brakes, emissions, tires, suspension, and so forth). Tr. 2B:78. Each of these areas is listed on the card and each area also includes subdivisions listed on the card. J.A. 273. If a lane inspector finds a problem, he is required to punch the appropriate space for rejection on the row concerning the mechanical system at issue. Tr. 3:104. If the inspector does not find any problems requiring rejection, he punches boxes two through five on the card to indicate that the vehicle passed the physical inspection. Tr. 3:102.

The final post on each lane is the exit booth. Tr.2B:77. The exit booth inspector is known as a "stickerman." Tr. 10:64. At the beginning of each work day, the stickerman is supposed to sign out inspection stickers by writing in a daily log the series of numbers corresponding to the stickers that he takes and then signing or initialing the log. Tr. 3:115-16. At the end of the day, the stickerman is supposed to return unused stickers, enter the numbers in the daily log that correspond to the unused stickers, and initial or sign the log. Tr. 3:115-16. There is also a sticker inventory log that the stickerman is supposed to sign or initial that reflects the issuance and expiration dates for stickers in series of ten. J.A. 269; Tr. 3:117.

There are four actions that a stickerman may take after a taxicab arrives at the exit booth. In each case, the stickerman is supposed to remove the old inspection sticker from the windshield and affix an appropriate new one. If a taxicab passes inspection, the stickerman is supposed to place an approved inspection sticker on the windshield. Tr. 3:85. If a taxicab does not pass inspection because of a serious defect, the stickerman is supposed to affix a red rejection sticker and return the inspection card to the driver showing what defects require correction. Tr. 3:85. If the defect is minor, the stickerman is supposed to affix a "working" sticker, which allows the driver to pick up passengers temporarily while the problem is being repaired. J.A. 96. Finally, if the taxicab is unsafe to operate, the stickerman affixes a "condemned" sticker and instructs the driver to have the vehicle towed from the station. J.A. 96.

Once the stickerman finishes the procedure, he is required to punch box number six on the card. Tr. 3:102, 107. He also writes the number of the sticker affixed to the windshield in the appropriate place on the card. J.A. 273. If the computer system is working, he is required to enter the results of the inspection on the system so that the Department of Public Works has a record correlating the VIN, tag number, and sticker number. Tr. 3:85. If the computer system is not working, then the information on the cards is supposed to be entered later. Tr. 4:21.

Two other types of documents are also created during the inspection process. The first type is a daily attendance log listing the inspectors' names and punch numbers. J.A. 271. The inspectors must sign or initial the log and note their times of arrival and departure. J.A. 271. The second type of document is known as a "lane report." J.A. 272. The lane report is signed by the stickerman and is designed to act as an accounting document. The punch numbers of each person working on the lane are written at the top of the document. J.A. 272. The stickerman is required to note total stickers used and total stickers on hand. J.A. 272. The lane report includes a space for verification. J.A. 272. None of the lane reports introduced into evidence contained a signature in that space. Tr. 4:24-25. At trial, the head of the inspection station testified that lane reports are "turned in normally around midday." Tr. 3:16. One of the vehicle inspectors testified that lane reports are turned in "[a]t the end of the day. . . . Always at the end of the day." Tr. 8:137.

2. The Government's Investigation and Overview of the Evidence at Trial.

Law enforcement agents, working with the Department of Public Works, and using undercover techniques, informants, and cooperating witnesses, developed evidence against individuals in the taxicab industry and inspectors. The investigation was known as "Operation Freeride." Tr. 5:141. The investigation's purpose was to develop evidence against inspectors suspected of taking bribes in return for passing taxicabs that otherwise would have failed inspection and in return for providing inspection stickers without a physical inspection. Tr. 5:62-63.

Law enforcement agents used cooperating witnesses and undercover police officers, sometimes recorded by audiotape and videotape, to purchase unused inspection stickers from vehicle inspectors, taxicab owners, and persons in the taxicab industry known as "middlemen." Tr. 5:61-68. Middlemen run taxicabs through the inspection process for owners and otherwise assist owners in the process. Tr. 5:63. Once evidence was developed against targets, the agents would confront the them, secure cooperation, and develop new targets. Tr. 5:77-78, 104-05. The investigation closed down on April 14, 1998, when law enforcement agents coordinated the execution of arrest warrants at the Northeast station with television cameras present. Tr. 3:43, 10:84. Six inspectors were indicted on conspiracy, bribery, and forgery charges. J.A. 33 (superseding indictment). Several others, including inspector Darryl xxxxxxxx, negotiated pre-indictment cooperation agreements and pled guilty. Tr. 8:145-48.

Two of the indicted vehicle inspectors, Charles xxxxx and Douglas xxxxxx, pled guilty and agreed to cooperate with the government. xxxxx and xxxxxx, along with Vincent, testified for the government at trial. All three inspectors testified about their participation in corrupt practices. Tr. 2B:80, 8:104, 10:54. To varying degrees, xxxxx and xxxxxx testified about the participation of xxxx and xxxxxx in corrupt practices. Tr. 2B:80, 10:54. Vincent also testified that xxxxxx was involved in corrupt practices. Tr. 8:104.

Eighteen other government witnesses testified at trial. Three were cab drivers named Prem Randhawa, James xxxxxx, and Berhane Gebrehiwot, none of whom directly engaged in illegal transactions with inspectors. Tr. 2B:33, 6:50, 7:28. Testimony pursuant to cooperation agreements was elicited from Mohammed Eltaher, David Otoo, Abbas Razjooyan, Kenneth Goodwin, Michael Sawyer, and Mohammed Dashtizadeh. Eltaher was the owner of a small cab company who testified that he bought a sticker from xxxxxx on one occasion. Tr. 6:148. Otoo was a middleman and manager of a taxicab company who testified that he bought stickers from xxxxxx and others, but not xxxx or xxxxxx, on numerous occasions since 1991. Tr. 6:94-95. Razjooyan was a cab company owner who testified that he purchased inspection stickers from xxxxxx, xxxx, xxxxx and another inspector. Tr. 7:37, 42. Goodwin was a middleman who testified that he bought stickers from xxxxxx, xxxx, xxxxx, and xxxxxx. Tr. 9:43, 72. Goodwin also testified that he left so-called "ashtray bribes" for lane inspectors to pass cabs present for inspection that otherwise would have failed. Tr. 9:48. Michael Sawyer -- to whom xxxxxx was alleged to have sold stickers in counts 11 and 13 -- testified that he bought personal use vehicle stickers from xxxxxx. Tr. 10:143-44. Dashtizadeh testified that he bought stickers from xxxxxx and xxxxx. Tr. 2B:46.

The other witnesses at trial were Fred Loney, Gary Burgess, Donald Staib, Mercy Moore, D.C. Office of Inspector General Special Agent Donald Baxter, FBI Special Agent Mary Jo Greipp, Metropolitan Police Department Sergeant Gregory Wells, Metropolitan Police Department Detective Eugene Edwards, and FBI Special Agent Kenneth Cassine. Loney is the head of the inspection stations and testified primarily about the inspection process and inspection procedures. Tr. 3:80. Burgess is a vehicle inspector. Tr. 10:200. Staib and Moore are D.C. government employees who testified about computer record-keeping systems. Tr. 6:123, 10:100. Greipp, Wells, Edwards, Cassine, and Baxter are law enforcement agents who testified about their roles in the investigation and their participation in pretrial events. Tr. 5:58, 5:154, 5:165, 6:179, 7:130.

Numerous exhibits were admitted at trial. They included a videotape of the inspection process (Government Exhibit ("GX") 10); seventy-one inspection cards (GX5B1-71); lane reports (GX 17); forty-four daily attendance logs (GX 18); two daily sticker sign-in/sign-out log books (GX 16a-b); four sticker inventory logs (GX15a-d); and stickers removed from cars and obtained during the undercover investigation (GX 5a). For each juror's use during deliberations, the government assembled 71-tab notebooks that correlated inspection cards, stickers, logs, and lane reports by sticker number. Tr. 5:208, 12:11.

3. Evidence Concerning xxxxxx's Conviction on

Count 7 and the Aiding and Abetting Instruction.



Count 7 charged that xxxxxx, on or about November 6, 1997, sold inspection sticker T217137 to Dashtizadeh for approximately $70.00. J.A. 111. Randhawa, Dashtizadeh, and xxxxx gave the key testimony concerning this count. The critical documents concerning this count are an inspection card bearing the date November 6, 1997, J.A. 273; a sticker bearing the number T217137 that was removed from the windshield of Randhawa's cab by government agents, J.A. 273; a sticker inventory log page that lists a series of ten stickers in the range T217131-140, J.A. 269; a daily sticker sign-out/sign-in log for November 6, 1997, J.A. 270; a lane report bearing a November 6, 1997 stamp, J.A. 272; and a daily attendance log sheet for November 6, 1997. J.A. 271. (6)

a. Testimony. Dashtizadeh worked for Universal Cab Company and testified that he paid bribes only to xxxxxx and xxxxx. Tr. 2B:44, 50, 51. Dashtizadeh purchased "few[,] [m]aybe four or five" stickers from xxxxxx in total. Tr. 2B:50. Dashtizadeh paid $50.00 to xxxxxx once and at most paid "[p]robably" $75.00 for a sticker from xxxxxx. Tr. 2B:47, 50-51. xxxxx charged Dashtizadeh "[p]robably close to a hundred." Tr. 2B:48. (7)

Dashtizadeh testified that he had illegal contact with inspectors in late 1997 but stated that it was "very difficult . . . to recall exact days or months, even." Tr. 2B:45. Dashtizadeh testified that an individual whose name he did not know (Randhawa) was referred to Dashtizadeh by a friend named Kamal. Tr. 2B:48-49. Kamal informed Dashtizadeh that "part of [the individual's] grille, one stripe was missing or so," and Dashtizadeh agreed to do obtain a sticker. Id. Dashtizadeh testified that he got the sticker from "Mr. xxxxxx or Mr. xxxxx." Tr. 2B:49. Dashtizadeh sold the sticker for $150.00 to the individual referred by Kamal. Tr. 2B:49. Dashtizadeh did not testify that he is known as "Mo."

Randhawa testified that he obtained sticker T217137 from a person known to him as "Mr. Mo." Tr. 2B:36. Randhawa testified that the grille of his cab was damaged and that he was introduced by telephone to Mr. Mo by Kamal. Tr. 2B:36. Randhawa paid $150.00 to Mr. Mo, who took Randhawa's taxicab, "came back again, and the sticker was on the car." Tr. 2B:38. According to Randhawa, "Mr. Mo" was located "in the southeast very close to 95 freeway, near 7th Street and West Virginia Avenue -- no, Virginia Avenue." Tr. 2B:37.

xxxxx testified that he sold stickers illegally to "Kat, Alex, Mo, Dave" and that he was approached for stickers. Tr. 10:43, 71. xxxxx did not testify that he obtained a sticker from xxxxxx that xxxxx then sold to "Mo." Nor did xxxxx testify that he specifically sold a sticker to anyone named "Mo" in late 1997. xxxxx could not identify what cab company "Mo" was associated with. Tr. 10:44. xxxxx did not testify where the business of "Mo" was located. xxxxx did not identify Dashtizadeh as a person from whom he took bribes. Nor did xxxxx distinguish, from Dashtizadeh, either Mohammed Eltaher -- another middleman who testified that he owns an auto repair shop on West Virginia Avenue, Northeast, Tr. 6:143 -- or any other person who could be known as "Mo." xxxxxx, who was named in overt act 42 in count 1 as a participant in the alleged forgery of the inspection card bearing sticker number T217137, gave no testimony directly concerning that sticker number.

xxxxx, xxxxxx, and Vincent testified that stickers were commonly handed out by inspectors. xxxxx agreed that sometimes another inspector "would come up and say, 'I need a sticker,'" that xxxxx would hand him the sticker if the inspector also had an inspection card and indicated that a car had passed inspection, and that xxxxx "didn't have any idea at that moment in time whether that sticker was being handed to somebody for their use for a criminal purpose or an innocent purpose." Tr. 10:80-81. xxxxx also testified that he did not know what xxxxxx, xxxx, or xxxxxx were doing with stickers that xxxxx handed to them. Tr. 10:56-57. Similarly, xxxxx did not testify that xxxxxx knew xxxxx was selling any particular sticker that xxxxxx may have handed to xxxxx. Vincent testified that it was a "fairly common practice," as he told the FBI on May 18, 1998, for inspectors to hand out stickers without determining whether the sticker was then affixed to a windshield. Tr. 8:138. xxxxxx agreed that "if somebody asked for a sticker [he] might give them a sticker, because sometimes the inspectors on the lane would give the sticker to somebody coming through[.]" Tr. 3:37.

b. Documents. The primary exhibit at trial on count 7 was an inspection card. J.A. 273. Punch number 43 (xxxxxx) appears in box 1 (writer), punch number 20 (xxxxxx) appears in box 6 (stickerman), and punch number 35 (xxxx) appears in boxes 2 through 5 (lane). Tr. 3:150-51. xxxxx' punch number was 54. J.A. 271. Neither punch number 54 nor xxxxx' name appears on the inspection card. The lane report bearing a November 6, 1997 stamp contains the signature "D. xxxxxx" on the line for "stickerman." J.A. 272. According to the lane report, the crew members were xxxxxx (punch number 20), inspector number 47 (Norris Owens), and inspector number 56 (Burgess). J.A. 271-72. The lane report reflects sticker number T217137 as "on hand," not as issued. Neither xxxxx' name nor punch number 54 appears on the lane report. The sticker inventory log shows that a series of ten stickers, from T217131 through T217140, was issued on November 6, 1997, with an expiration date of May 6, 1998. J.A. 269. The signature block for that series contains the initials "D.J." The daily sign-out/sign-in log reflects that "D. xxxxxx" signed out sticker T217109 in the morning of November 6, 1997, signed in sticker T217139 on November 6, 1997, and signed out sticker T217139 on November 7, 1997. J.A. 270.

c. The Aiding and Abetting Instruction.

Over objection, the district court gave an aiding and abetting instruction stating in part that

You may find . . . Daryl xxxxxx guilty of the crime charged in count 7 without finding that the defendant personally committed each of the acts that make up the crime or that he was present while the crime was being committed. Any person who in some way intentionally participates in the commission of a crime aids and abets the principal offender. He, therefore, is as guilty of the crime as he would be if he had personally committed each of the acts that make up the crime. To find that the defendant aided and abetted in committing a crime you must find that the defendant knowingly associated himself with the person or persons who committed the crime; that he participated in the crime [as] something he wished to bring about[;] and that he intended by his actions to make it succeed. . . .

Tr. 11:196-98. (8)

The government requested the aiding and abetting instruction because Dashtizadeh testified that he bought sticker T217137 from either xxxxxx or xxxxx. Tr. 10:3. The request for the instruction was made after Dashtizadeh testified but before xxxxx testified. At that time, the government stated that xxxxx was going to testify that he "got the money from Mr. Dashtizadeh, went to Mr. xxxxxx and asked him for a sticker[.]" Tr. 10:3. Later, the government stated that the evidence would show that xxxxxx "assisted Mr. xxxxx in this particular bribery [charged in count 7]." Tr. 11:13. (9)

4. Evidence Concerning Loss Calculations for xxxx and xxxxxx.

Under U.S.S.G. 2C1.2(b)(2)(A), the bribery offense level is increased by the "corresponding number of levels from the table in 2F1.1" when the total value of bribes exceeds $2,000.00. The district court determined that between $40,000.00 and $70,000.00 in bribes (corresponding to a five-level increase) was attributable to xxxxxx as relevant conduct, Tr. 3/30:19, and that $70,065.00 in bribes (corresponding to a six-level increase) was attributable to xxxx. Tr. 7/20:11-18. As a result, xxxxxx was sentenced at a total offense level of 15 (after a two-point reduction under 3E1.1), Tr. 3/30:19, and xxxx was sentenced at a total offense level of 18. Tr. 7/20:18.

a. Testimony. The conspiracy evidence at trial was that inspectors created paperwork to correspond to fraudulently-issued stickers by printing up cards for themselves and others when working in the entrance booth. Tr. 2B:82. Inspectors punched cards for themselves and others when working on the lane. Tr. 2B:84. Each inspector set his own prices for stickers. Tr. 2B:47, 6:147, 7:100, 10:44. Inspectors sold stickers in diverse locations to their own customers for individual profit. Tr. 6:74, 148. xxxxxx testified that he worked with xxxxxx, xxxx, xxxxx, xxxxxx, and three other inspectors. Tr. 2:80. As to xxxx, he stated that "if I needed a card punched or he needed a card punched, I would punch his card and he would punch mine." Tr. 2:81-82. xxxx sometimes refused to punch cards. Tr. 3:68.

xxxxxx and xxxxx testified that cash was not exchanged between inspectors for cards or stickers or for punching cards for other inspectors (with the exception of an inspector named John Minick, who demanded money). Tr. 3:19-20, 10:53-54. xxxxx testified that he had different agreements with each inspector and did not know what other inspectors did with stickers that he supplied to them. Tr. 10:56-57. xxxxx testified that he charged $80.00 per sticker. Tr. 10:44. Vincent testified that he sold inspection stickers and cards to xxxxxx, xxxxxx, xxxxx, xxxxxx, and others, and that his price was $10.00 to $20.00. Tr. 8:104-09.

Middlemen also testified concerning bribe procedures and prices. Eltaher testified that he bought two stickers from xxxxxx for $30.00 and $75.00 and one from xxxxxx for approximately $50.00. Tr. 6:146-47, 150. Dashtizadeh testified that he paid xxxxx close to $100.00 per sticker and paid xxxxxx $50.00-$75.00 per sticker. Tr. 2B:47-50. Razjooyan testified that he paid $50.00-$100.00 per sticker at whatever price he could negotiate. Tr. 7:100. Dashtizadeh, Sawyer, and Eltaher had no dealings with xxxx. Tr. 2B:46, 6:175, 10:141.

The government's key witnesses concerning relevant conduct were Otoo and Goodwin. Otoo testified that he did not purchase stickers from xxxx or xxxxxx. Tr. 6:117, 2/19:49. Otoo testified that he purchased stickers from other inspectors at diverse locations and that the price varied, depending upon the period of time at issue, from $50.00-$100.00. Tr. 3/19:46. At the March 19, 1999 hearing, Otoo testified that he had purchased stickers from xxxxxx and another inspector, Reginald Dean, since 1991. Tr. 3/19:44. Otoo testified that he initially purchased 5, 10, or 15 stickers per week for $50.00 a sticker, Tr. 3/19:46, and that the amount per sticker increased at some point to $75.00 and then $100.00. Tr. 3/19:46-47. Over time, Otoo also bought stickers from xxxxxx and xxxxx. Tr. 3/19:47.

At trial, Goodwin testified that he paid $75.00 per sticker and $50.00 for each ashtray bribe. Tr. 9:41, 47-48. Goodwin also testified at the March 19, 1999 hearing. Tr. 3/19:33-42. At that hearing, the government proffered that it had erred in earlier estimated figures from Goodwin because it had not incorporated a medical problem suffered by Goodwin showing that the relevant conduct involving Goodwin occurred over three years, not four years. Tr. 3/19:35. Goodwin testified he purchased stickers for "a year to a year and a half" before his arrest in August 1997. Tr. 3/19:39-40. During that period of time, Goodwin purchased 10-12 stickers from xxxx. Tr. 3/19:40. Goodwin did not give a specific date on which he first purchased a sticker from xxxx.

Additional testimony concerning loss amounts came from Wells and Greipp at the February 19, 1999 hearing concerning xxxxxx. Wells testified that he had interviewed Otoo. According to Wells, Otoo bought stickers from xxxxxx beginning in 1992, xxxxx for one year, and xxxxxx starting in 1997. Tr. 2/19:34-37. Otoo estimated conservatively that he paid $6,000.00 to xxxxxx, $10,000.00 to xxxxx, and $33,500.00 to xxxxxx (based on an estimate of 75 stickers per year for 5-6 years), for a grand total of $49,500.00. Wells also testified that another middleperson, Katherline Watson, purchased 20 stickers for approximately $600.00 ($400.00 to xxxxxx) and paid $600.00 in ashtray bribes to xxxxxx.

Although xxxxxx did not plead to a conspiracy charge, he admitted that he had joined other inspectors in illegal conduct. Concerning xxxxxx' role in the conspiracy, Wells testified that "I know he had a hand in it. There's a number of inspection cards that show Mr. xxxxxx' punch number on it. I just don't have an estimate." Tr. 2/19:49. Wells had no idea whether any evidence linked xxxxxx to sticker sales by xxxxxx or xxxxx. Tr. 2/19:50, 52. Based upon his investigation, Wells stated that xxxxxx would not know how much business Otoo transacted with other inspectors because "[t]hey each had their own business, their own clients." Tr. 2/19:53. Wells could not recall Otto telling law enforcement agents that Otoo had ever discussed the purchase of stickers with xxxxxx. Tr. 2/19:51. Nor could Wells estimate on how many occasions, with respect to stickers eventually sold to Otoo, xxxxxx may have participated in forging or punching an associated inspection card or obtaining a sticker. Nor could Wells make similar estimates for xxxxxx with regarding xxxxx and xxxxxx. When asked why xxxxxx would know how much business xxxxxx, xxxxxx, and xxxxx were doing with Otoo, Wells replied "I don't think he would know." Tr. 2/19:53. Wells testified that "[t]hey all acted pretty much together, but yet independent in that the conspiracy to get the stickers was necessary. A conspiracy to sell the stickers is unnecessary. They each had their own business, their own clients." Tr. 2/19:53.

Greipp testified that Goodwin paid $15,000 in ashtray bribes to xxxxxx over a four year period (later revised by the government to three years, Tr. 3/19:35). Tr. 2/19:58. Greipp also testified that xxxxxx received $1,175.00 from Goodwin for stickers. Purchases of stickers by Goodwin from xxxxxx, xxxx, and xxxxx totaling $3,755.00 were also attributed to xxxxxx. Greipp "credited" xxxxxx with an additional $2,800.00 in sticker purchases by Razjooyan and Sawyer from third parties. Razjooyan did not have any contact with xxxxxx. Tr. 2/19:75. (11)

The dates on which xxxx and xxxxxx were deemed to have joined the conspiracy were critical to the relevant conduct calculation. The indictment charged a conspiracy from April 1997 to July 1998. J.A. 97. xxxx started working at the inspection station in 1991 and xxxxxx started working there in November 1992. Tr. 4:168; J.A. 215. xxxxxx was on sick leave from July 1993 until August 1994. J.A. 215. He was on paternity leave from January 1996 to May 1996. J.A. 216. He was detailed to another office of the Department of Public Works from August 1997 until March 1998, where his duties did not involve inspections or sticker distribution. J.A. 216. At trial, xxxxxx offered the only evidence of when xxxx joined the conspiracy. xxxxxx was asked "how much time prior to July of '97 were you doing these things with Mr. xxxx?" and xxxxxx responded "Just about two years, I guess. I don't know." Tr. 3:22. At the March 19th hearing, Goodwin testified that he first bought a sticker from xxxx about 1-1 years before Goodwin's arrest in August 1997. Tr. 3/19:39-40.

b. The District Court's Findings. At xxxx's sentencing, the district court found that xxxxxx, xxxx, xxxxxx, xxxxx, xxxxxx, and three other inspectors at the Northeast inspection were involved in a conspiracy and aided and abetted each other in selling stickers. Tr. 7/20:4-5. The district court determined that inspectors knew their own volume of sticker sales and also would know what other inspectors were doing because those inspectors would come to them. Tr. 7/20:6. Regarding foreseeability, the district court determined that the system required mutual assistance to function. Tr. 7/20:9. The district court determined that Otoo paid bribes to inspectors from 1991 to 1998 totaling $52,250.00 and that those bribes were attributable to xxxx. Tr. 7/20:12, 17. While the district court acknowledged that there were discrepancies in the evidence, Tr.7/20:11-13, it credited the witnesses' testimony concerning the loss amounts that the district court used in its calculations. Tr. 7/20:8.

As to when xxxx joined the conspiracy, the district court found that xxxx was responsible for bribe amounts from 1991 to 1998. Tr. 7/20:6, 12. Specifically, the district court stated that There was never an indication that [xxxx] was not involved from the beginning. And this was a conspiracy that started back in the '90s, so this isn't something that got sort of put together at the point that Mr. xxxx sort of started working there. This was something that was there when he came in and started working. It was already in place. And I have nothing to the contrary that would indicate he did not start from that point.

Tr. 7/20:21-22.

At xxxxxx' sentencing hearing, the district court used the period 1992-98 to calculate relevant conduct for xxxxxx but excluded the time when he was not on the job. Tr. 3/30:14. The district court found that "there was certainly testimony that this went back to the '80s. . . . [T]hey all knew exactly which one of the ones this was workable with and which ones were not. . . . [T]here's enough evidence here to indicate . . . [that xxxxxx] would have been involved from the beginning." Tr. 3/30:27-28. (12) Regarding bribe amounts, the district court credited the estimates from middlemen. Tr. 3/30:15. The district court stated that it had the benefit of trial testimony, the evidence from the presentencing hearings, and the experience of accepting 24 pleas in related cases. Tr. 3/30:7. The district court determined that each inspector knew his own volume of sticker sales and that each inspector had some idea of how much the other inspectors were doing. Tr. 3/30:4. The district court determined that the other inspectors' conduct was foreseeable to xxxxxx because the system required mutual assistance and because inspectors involved in corrupt activity must have known who was accepting bribes, the amount of the bribes, and their volume. Tr. 3/30:17. In total, the district court attributed to xxxxxx more than $36,000.00 paid by Otoo and $12,250.00 paid by Goodwin, placing xxxxxx' total relevant conduct in the $40,000.00-$70,000.00 range. Tr. 3/30:18.

SUMMARY OF ARGUMENT

The judgments against appellants should be vacated because the district court lacked subject matter jurisdiction. The issue of federal jurisdiction revolves around whether the federal bribery statute at issue, 18 U.S.C. 201(b)(2), which was extended to D.C. public officials in 1962 pursuant to Congress' power over the District granted by article I, clause 8, section 17 of the Constitution, was repealed pro tanto in 1982. At that time, the Council passed and Congress approved a local crime bill, including new bribery provisions, pursuant to the power granted by article I, section 8, clause 17, which was delegated to the Council by Congress in the Home Rule Act of 1973.

The district court did not reach the question of whether a repeal occurred because it ruled that the D.C. Council lacked repeal power under D.C. Code 1-233(a)(3). However, the district court failed to distinguish the different sources of constitutional power at issue, and also failed to recognize that the D.C. Council, like any legislative body, may initiate a pro tanto repeal within the scope of its power. Because nothing about the Council's action in 1982 touched upon the nationally-applicable portion of the federal bribery statute, the district court should have reached the question of whether a pro tanto repeal occurred in 1982.

There is clear and manifest evidence of a pro tanto repeal in 1982. At that time, congressional efforts to revise the federal criminal code were occurring as the D.C. Council was considering the new crime bill. As a Senate Report reflects, a proposed new federal bribery statute to replace 201(b)(2) would have removed references to the District in light of the D.C. Council's reform efforts. The legislative history of the D.C. Council's 1982 act similarly shows that the bribery provisions were being localized as to public officials in the District. Even if the evidence of a repeal was not clear, however, principles of statutory construction mandate a conclusion that a pro tanto repeal occurred. Any other construction would effectively allow the executive branch to exercise legislative power by ignoring, at its option, the delegation of article I power in the Home Rule Act, the D.C. Council's exercise of that power in 1982, and Congress' approval of the resulting law.

If this Court determines that the district court properly exercised subject matter jurisdiction, xxxxxx's conviction should be vacated nonetheless and the cases against xxxx and xxxxxx should be remanded for resentencing. There was insufficient evidence to show that xxxxxx took the bribe charged in count 7 or that he aided and abetted xxxxx in taking the bribe. In the alternative, a new trial should be ordered for xxxxxx on count 7. Resentencing of xxxx and xxxxxx should occur because the district court did not make sufficient findings as to when they joined the conspiracy or why all bribe amounts attributed to them were reasonably foreseeable.

ARGUMENT



I. THE CONVICTIONS MUST BE VACATED BECAUSE THE DISTRICT COURT LACKED SUBJECT MATTER JURISDICTION.

A. Standard of Review.

The district court's ruling involves purely legal issues and is reviewed de novo.

B. Statutes and Legislative History.

The federal bribery statute provides that a "public official" who corruptly receives anything of value in return for "being induced to do or omit to do any act in violation of the official duty of such official" is guilty of a crime. 18 U.S.C. 201(b)(2). Section 201(a)(1) provides that "the term 'public official' means . . . an officer or employee or person acting for or on behalf of the United States, or any department, agency or branch of government thereof, including the District of Columbia[.]" The District of Columbia was added to the list of entities within the statute's reach when Congress revamped the federal bribery laws in 1962. See United States v. Neville, 82 F.3d 1101, 1104-05 (D.C. Cir. 1996) (holding that D.C. corrections officer was a "public official" subject to 201(b)(2)). (13) The authority of Congress to enact legislation for the District of Columbia lies in article I, section 8, clause 17 of the Constitution, which provides that "The Congress shall have Power . . . [t]o exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the United States." See District of Columbia v. John R. Thompson Co., 346 U.S. 100, 105-06 (1953).

Just as Congress has the power to legislate over the District, it has the authority "to delegate the powers of Home Rule to the District." Id. at 108, 110. In 1973, Congress effected such a delegation when it passed the District of Columbia Self-Government and Governmental Reorganization Act, Pub. L. No. 93-198, 87 Stat.774 ("Home Rule Act"). See Hessey v. District of Columbia Board of Elections and Ethics, 601 A.2d 3, 7 (D.C. 1991) (en banc). (14) The Home Rule Act is "codified as amended in scattered sections of the D.C. Code[.]" The intent of Congress in passing the Home Rule Act was to "delegate certain legislative powers to the government of the District of Columbia; . . . grant to the inhabitants of the District of Columbia powers of local self-government; . . . and, to the greatest extent possible, consistent with the constitutional mandate, relieve Congress of the burden of legislating upon essentially local District matters . . . [s]ubject to the retention by Congress of the ultimate legislative authority over the nation's capital granted by article I, 8, of the Constitution[.]" D.C. Code 1-201(a); see also 1-206 (reservation of congressional authority).

The Home Rule Act defines the scope of the D.C. Council's power to legislate. Section 1-233(a)(3) provides in part that the "Council shall have no authority to pass any act contrary to the provisions of this Act except as specifically provided in this Act, or to . . . [e]nact any act, or enact any act to amend or repeal any Act of Congress, which concerns the functions or property of the United States or which is not restricted in its application exclusively in or to the District[.]" Section 1-208(b) provides in part that "No law or regulation which is in force on January 2, 1975, shall be deemed amended or repealed by this Act except to the extent specifically provided herein or to the extent that such law or regulation is inconsistent with this Act, but any such law or regulation may be amended or repealed by act or resolution as authorized in this Act, or by Act of Congress[.]" (15)

The Home Rule Act also sets forth procedures that must be followed before local legislation may become effective. In 1982, the Home Rule Act provided for a 30-day review period for Congress to consider legislation passed by the Council. Legislation was submitted to the Speaker of the House and the President of the Senate and became effective at the end of a 30-day period "unless disapproved by concurrent resolution." District of Columbia v. Washington Home Ownership Council, 415 A.2d 1349, 1351-52 (D.C. 1980) (en banc). With respect to Titles 22-24 of the D.C. Code (codifying laws concerning criminal offenses and procedure), a one-house veto of Council legislation was permitted. Id. at 1352 n.7. (16)

In 1982, the D.C. Council passed the District of Columbia Theft and White Collar Crimes Act of 1982, D.C. Law 4-164. That act added a bribery provision now codified at D.C. Code 22-712. Section 712 mirrors 18 U.S.C. 201(b) and states in part that A person commits the offense of bribery if that person . . . [c]orruptly solicits, demands, accepts, or agrees to accept anything of value, directly or indirectly, as a public servant . . . in return for an agreement or understanding that an official act of the public servant will be influenced thereby or that the public servant will violate an official duty, or that the public servant will commit, aid in committing, or will collude in or allow any fraud against the District of Columbia.

"'Public servant' means any officer, employee, or other person authorized to act for on or behalf of the District of Columbia." See D.C. Code 22-711(6).

D.C. Law 4-164 was considered by the D.C. Council as Bill No. 4-133 and was signed by the Mayor on August 4, 1982. See D.C. Code 22-3801 note. The law was assigned Act No. 4-238 and was transmitted to both Houses of Congress for review. Id. Because there was no disapproval by either house of Act No. 4-238, it became law on December 1, 1982. See D.C. Code 22-712 note.

The D.C. Council's revision efforts occurred at the same time that a Congressional effort was being made to enact a new "federal criminal code (S. 1630)" [the Criminal Code Reform Act of 1981]. See David Clarke (then-Chairperson of the D.C. Council), "Extension of Comments on Bill No. 4-133: the District of Columbia Theft and White Collar Crimes Act of 1982," July 20, 1982, at 76-85 ("Clarke Report"). The Senate Judiciary Committee Report on S. 1630 reflects that one of the proposed new federal provisions would have been enacted as 18 U.S.C. 1351 and would have replaced 18 U.S.C. 201. With respect to proposed 1351, the Senate Report states in part that

The term 'federal public servant' is defined in section 111 generally to carry forward the purview of 18 U.S.C. 201, but to exclude a District of Columbia public servant. Although District of Columbia officials and employees are presently included in 18 U.S.C. 201, such coverage overlaps the bribery provisions in section 22-704 of the District of Columbia Code which is encompassed within the current criminal code revision efforts of the District of Columbia government.



See S. Rep. 97-307, 97th Cong., 1st Sess., December 22, 1981, at 432. Ultimately, the proposed Criminal Code Reform Act of 1981 was not enacted by Congress.



There is also substantial legislative history concerning the D.C. Council's own actions. The June 1, 1982 Report by the Council's Committee on the Judiciary states in part that The overall purpose of Bill No. 4-133 is to revise and modernize the District of Columbia criminal laws relating to theft, receipt of stolen property, fraud, extortion, blackmail, forgery, bribery, perjury, libel, and obstruction of justice. The revision is designed to meet four objectives: (1) to consolidate and clarify the law; (2) to promote more effective law enforcement . . . ; (3) to modernize the law . . . ; and (4) to identify and proscribe harmful activity which is not currently prohibited by the District's criminal law. Major features of the bill include . . . a provision which redefines the offense of bribery[.]

See Report, June 1, 1982, Bill No. 4-133. The Clarke Report further discusses the proposed bribery provisions in Bill No. 4-133, stating that sections were "derived in part from the proposed federal criminal code (S. 1630)[,]" and discussing the "current federal bribery statute" with respect to the meaning of various terms. See Clarke Report at 76-85.



C. The District of Columbia Council Had the Power to Initiate a ProTanto Repeal of 18 U.S.C. 201(b)(2).

The district court did not reach the question of whether an implied repeal of 18 U.S.C. 201(b)(2) occurred in 1982 as applied to D.C. public officials because it ruled that the D.C. Council lacks such power under D.C. Code 1-233(a)(3). J.A. 196, 252. According to the district court, 201(b)(2) is a criminal prohibition "whose reach 'is not restricted in its application exclusively in or to the District'" and thus the D.C. Council "simply lacks authority under the Home Rule Act to repeal such a statute or enjoin its application in the District." J.A.196.

The district court erred because it did not distinguish the different constitutional sources of power on which Congress drew when it revised the federal bribery laws in 1962 and brought the District within the statute's reach. When Congress acted to prohibit bribes of an "officer or employee or person acting for or on behalf of the United States, or any department, agency or branch of government thereof," see 18 U.S.C. 201(b)(2), it exercised constitutional power of national scope. By adding the "District of Columbia" to the list of entities, thus making D.C. public officials subject to the statute's prohibitions, Congress exercised the power over the District granted by article I, section 8, clause 17. The fact that Congress embedded the product of an exercise of power over the District in a statute of otherwise national scope, and defined the District as part of the United States government for purposes of that statute -- a purported legal status that the Home Rule Act later changed in any event -- did not make the application of the statute's prohibitions to D.C. public officials any less a function of Congress' specific article I power over the District.

In the Home Rule Act, Congress permitted the D.C. Council to initiate repeals of Acts of Congress that apply exclusively in or to the District. See D.C. Code 1-208(b). Partial or pro tanto repeals lie within the repealing power of legislative bodies. See, e.g., Galliano v. United States Postal Service, 836 F.2d 1362, 1369-71 (D.C. Cir. 1988) (holding that certain provisions of the Federal Election Campaign Act constituted a pro tanto repeal of a consumer protection statute, 39 U.S.C. 3005, that is enforced by the Postal Service); see also Wood v. United States, 41 U.S. 342, 362-63 (1842) (Story, J.) (old law may be "repealed by implication, only pro tanto, to the extent of the repugnancy" created by a new law). Given the delegation of power contained in the Home Rule Act, and Congress' role as the ultimate decisionmaker, the D.C. Council is therefore not foreclosed from initiating a repeal of the locally-applicable portion of a statute that otherwise happens to be national in scope.

Two decisions of the District of Columbia Court of Appeals were cited by the district court in support of its interpretation of D.C. Code 1-233(a)(3). The district court first discussed McConnell v. United States, 537 A.2d 211 (D.C. 1988). J.A. 193-96. In McConnell, the issue was whether "commitment to treatment under [the Narcotic Addicts Rehabilitation Act of 1966 (NARA), 18 U.S.C. 4251-55] remain[ed] a sentencing alternative for a defendant-addict who ha[d] been convicted under the District of Columbia's Uniform Controlled Substances Act of 1981 (USCA) but [was] ineligible for UCSA's own addict exception because of a previous drug-related conviction." 537 A.2d at 213. (17) Rejecting the argument that Congress was acting in any respect as a local legislative body when it passed NARA, McConnell stated that "there is no distinct chapter of NARA applicable to the District of Columbia." Id. at 215. Recognizing that the District of Columbia "is not authorized to repeal legislation national in scope[]" under D.C. Code 1-233(a)(3), McConnell held that the provisions of the UCSA "could not -- and did not -- work an effective repeal of any of the provisions of NARA, including those in conflict with the amended UCSA." 537 A.2d at 215.

The district court's reliance on McConnell was misplaced because NARA is an apparent product of Congress' exercise of its national powers to regulate interstate commerce (article I, section 8, clause 3) and promote the general welfare of the United States (article I, section 8, clause 1). Cf. Ortega v. Rasor, 291 F. Supp. 748, 750 (S.D. Fla. 1968) ("It cannot be seriously disputed that a proper exercise of the police power underlies the promulgation of Title III of [NARA]," which was the civil counterpart to 18 U.S.C. 4251-55); 42 U.S.C. 3401 (NARA declaration of policy). The statute on its face applied only to "any individual convicted of an offense against the United States[.]" See 18 U.S.C. 4251(f). Because Congress did not act under article I, section 8, clause 17 when it passed NARA, the D.C. Council had no power to affect the application of NARA when it passed and amended the UCSA. (18)

The district court also concluded that District of Columbia v. Greater Washington Central Labor Council, 442 A.2d 110 (D.C. 1982) ("GWCLC"), supports its ruling. J.A. 207-08. In GWCLC, the issue was whether the D.C. Council exceeded its power under D.C. Code 1-233(a)(3) when it enacted a local workers compensation act in 1979 and repealed a workers' compensation act passed by Congress in 1928 that had extended the federal Longshoremen's Act to private employees in the District of Columbia. See 442 A.2d at 112. The court ruled that the D.C. Council had the power to repeal under D.C. Code 1-233(a)(3) despite the placement in 33 U.S.C. 939(b) of the criteria governing the Secretary of Labor's responsibility to administer the District's program under the 1928 law. Id. at 116. Distinguishing the federal act "from the local workers' compensation program which it encompasses," the court stated that the D.C. Council acted within its power in 1979 because the Longshoremen's Act "is a national program passed by Congress in discharge of its Article I powers" whereas the 1928 act extending the program to D.C. private employees was passed pursuant to article I, section 8, clause 17. Id. at 117.

Just as the placement of relevant local provisions in the United States Code was not material in GWCLC, it is not material here. The fact that Congress in 1962, before the Home Rule Act was passed, happened to make D.C. public officials subject to bribery prohibitions in a statute with an otherwise national scope did not vitiate the D.C. Council's power in 1982 to initiate a pro tanto repeal of the local aspect of 18 U.S.C. 201(b)(2). Because the district court erred in ruling that the D.C. Council lacked the power to repeal the local aspect of 201(b)(2), the question of whether an implied repeal occurred in 1982 should have been reached. (19)

D. A Pro Tanto Repeal of 18 U.S.C. 201(b)(2) Was Effected in 1982.

While there is a presumption against implied repeals, see United States v. Hsia, 176 F.3d 517, 525 (D.C. Cir. 1999) (citing United States v. Hansen, 772 F.2d 940 (D.C. Cir. 1985)), cert. denied, __ U.S. __, 120 S.Ct. 978 (January 24, 2000), an implied repeal exists where there is "'clear and manifest' evidence that it was intended." Hsia, 176 F.3d at 525 (quoting Hansen, 772 F.2d at 957-48). Such evidence may take a number of forms. For example, where two acts on the same subject . . . are repugnant in any of their provisions, the latter act, without any repealing clause, operates to the extent of the repugnancy of the first as a repeal of the first; and even where two acts are not in express terms repugnant, yet if the latter act covers the whole subject of the first, and embraces new provisions, plainly showing that it was intended to operate as a substitute for the first act, it will operate as a repeal of that act.

See United States v. Tynen, 78 U.S. 88, 92-95 (1870) (citations omitted); accord Posadas v. National City Bank of New York, 296 U.S. 497, 503 (1936). Another indicator of an implied repeal is where a risk exists that "Congress might have empowered two bodies to promulgate conflicting substantive standards[.]" Hsia, 176 F.3d at 526.

A pro tanto repeal of 18 U.S.C. 201(b)(2) occurred in 1982 because the bribery provisions of the D.C. Code reach all of the local conduct prohibited by 201(b)(2), thus "cover[ing] the whole subject" of the federal bribery statute as applied to D.C. employees. Tynen, 78 U.S. at 92. The legislative history further evidences the implied repeal. The Senate Report shows that Congress intended to remove D.C. public officials from the federal statute's reach given the revision efforts of the D.C. Council. The D.C. Council Report shows that the Council's purpose was to "consolidate and clarify the law[.]" And the Clarke Report shows that the Council's efforts were in lockstep with congressional attempts to revise the federal statute and exclude D.C. public officials from its scope. Given this history, along with Congress' decision to allow the 1982 enactment to become law, there is "clear and manifest" evidence of an implied repeal. Formally speaking, Congress is the repealing body. See Techworld Development Corp. v. D.C. Preservation League, 648 F. Supp. 106, 116 (D.D.C. 1986) (the D.C. "Council 'operates merely in aid of Congressional authority to legislate'" (quoting Buckley v. Valeo, 424 U.S. 1, 141 (1976)). (20)

Any conclusion that a pro tanto repeal did not occur in 1982 effectively allows the executive branch to exercise article I power and eviscerate the Home Rule Act. In many cases, federal laws affect the District just as they affect the States. For instance, both Congress and the D.C. Council prohibit illegal narcotics distribution. But Congress legislates in that context under the Commerce Clause, while the D.C. Council legislates under article I, section 8, clause 17. See United States v. Edwards, 98 F.3d 1364, 1369 (D.C. Cir. 1996) (upholding 21 U.S.C. 841 against Commerce Clause challenge); D.C. Code 33-541 (prohibiting illegal drug distribution). In such circumstances, there is no affront to the District when the government chooses to prosecute a defendant under the United States Code because the District is in a position no different from any State.

When the executive branch is permitted to ignore the D.C. Code's bribery provisions, however, and prosecute D.C. public officials under 18 U.S.C. 201(b)(2), it effectively takes away the legislative power that was delegated by Congress in 1973 and exercised by the D.C. Council in 1982 -- an exercise of power that became Congress' when it approved the 1982 act. That is prohibited by the separation of powers doctrine. See Chadha, 462 U.S. at 963 (Powell, J., concurring) ("the doctrine may be violated when one branch assumes a function that more properly is entrusted to another") (citing Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952) and Springer v. Philippine Islands, 277 U.S. 189, 203 (1928)). (21) Because statutes must be interpreted to avoid constitutional problems, an implied pro tanto repeal should be found in this case. See Edward J. DeBartolo Corp. v. Florida Gulf Coast Building and Construction Trades Council, 485 U.S. 568, 575 (1988) (statutes should be interpreted to avoid constitutional problems). Accordingly, appellants' convictions should be vacated and the cases should be remanded with instructions to dismiss for lack of subject matter jurisdiction.

II. xxxxxx'S MOTION FOR JUDGMENT OF ACQUITTAL WAS ERRONEOUSLY DENIED AND A NEW TRIAL ON COUNT 7 SHOULD HAVE BEEN GRANTED IN THE ALTERNATIVE.

A. Insufficient Evidence Existed to Convict xxxxxx Either as a Principal or as an Aider and Abettor.

1. Standard of Review.

This Court reviews de novo a denial of a motion for judgment of acquittal using the standard applied by the district court. See United States v. Schaffer, 183 F.3d 833, 839 (D.C. Cir. 1999). The standard is whether "'viewing the evidence in the light most favorable to the Government . . . and recognizing that it is the jury's province to determine credibility and to weigh the evidence, a reasonable jury must necessarily entertain a reasonable doubt on the evidence presented[.]'" United States v. Kelley, 36 F.3d 1118, 1126 (D.C. Cir. 1994) (citation omitted).

2. The Evidence Is Insufficient to Prove Guilt as a Principal.

For xxxxxx's conviction to be sustained on count 7 as a principal, the evidence must show that xxxxxx corruptly "demanded, sought, or received" money from Dashtizadeh "in return for being influenced in the performance of any official act . . . or being induced to do or omit to do any act in violation of his official duty." See Tr. 11:194-96 (jury instructions). That is, the evidence must show that xxxxxx gave sticker T217137 to Dashtizadeh in return for money without ensuring that the sticker was affixed to a properly-inspected vehicle. No rational jury could have determined that the evidence, viewed in the light most favorable to the government, proved such a violation beyond a reasonable doubt.

The evidence permits a conclusion that Dashtizadeh purchased sticker T217137 from either xxxxxx or xxxxx and that sticker T217137 was placed on Randhawa's cab by Dashtizadeh. The evidence also permits a conclusion that xxxxxx was the stickerman on or about November 6, 1997, signed out sticker T217137 that day, and punched an inspection card at some point corresponding to sticker T217137. But Dashtizadeh did not testify that he purchased sticker T217137 from xxxxxx. As for Randhawa, his testimony permits no inference that xxxxxx, as opposed to xxxxx or someone else, sold the sticker to Dashtizadeh. Similarly, xxxxx gave no testimony that xxxxxx sold that particular sticker to Dashtizadeh. Nor did xxxxxx, whose punch number appears on the card in the space for the entrance booth inspector, testify concerning sticker T217137. Even if all of the testimony at trial concerning xxxxxx's alleged corrupt participation in a wide-ranging conspiracy is fully credited -- and the jury acquitted xxxxxx on that count -- there is insufficient evidence to show that xxxxxx gave sticker T217137 to Dashtizadeh. (22)

Fully crediting Dashtizadeh's testimony that he bought stickers from either xxxxxx or xxxxx, and fully crediting the evidence that sticker T217137 was the subject of a bribe paid by Dashtizadeh, xxxxxx's guilt as a principal with respect to sticker T217137 could have been decided by a coin flip. "A jury is entitled to draw a vast range of reasonable inferences from evidence, but may not base a verdict on mere speculation. . . . [A court] therefore cannot sustain a jury's verdict 'when the government's web of inference is too weak to meet the legal standard of sufficiency.'" United States v. Wilson, 160 F.3d 732, 737 (D.C. Cir. 1998) (reversing conviction for aiding and abetting murder where evidence was insufficient to support verdict) (citations omitted). Because no rational jury could have convicted xxxxxx on count 7 as a principal, the conviction must be reversed unless the jury properly could have convicted him as an aider and abettor. (23)

3. The Evidence Is Insufficient to Prove that xxxxxx Aided and Abetted xxxxx in Taking the Bribe.

"Aiding and abetting requires the government to prove: '(1) the specific intent to facilitate the commission of a crime by another; (2) guilty knowledge (3) that the other was committing an offense; and (4) assisting or participating in the commission of the offense.'" Wilson, 160 F.3d at 738 (quoting United States v. Gaviria, 116 F.3d 1498, 1535 (D.C. Cir. 1997)); Tr. 11:196-98 (aiding and abetting instruction). A conviction for aiding and abetting must be reversed unless the government shows that the defendant "had sufficient knowledge and participation to allow a reasonable juror to infer that he 'knowingly and willfully participated in the offense in a manner that indicated he intended to make it succeed.'" Wilson, 160 F.3d at 738 (citations omitted); Tr. 11:196-98 (aiding and abetting instruction).

The offense at issue is the particular bribe alleged in count 7. On that charge, no rational jury could conclude beyond a reasonable doubt that the evidence supports a conviction for aiding and abetting. The only evidence that Dashtizadeh bribed xxxxx for sticker T217137 lies in the Dashtizadeh's testimony that he purchased stickers only from xxxxxx and xxxxx and xxxxx' testimony that he took bribes from someone named "Mo." But this evidence is too attenuated to prove that xxxxx took the specific bribe from Dashtizadeh charged in count 7. The government itself recognized the lack of evidence for the aiding and abetting theory in its closing argument. Tr. 12:120. Without sufficient evidence to prove that xxxxx committed the principal violation, a reasonable jury could not convict xxxxxx as xxxxx' aider and abettor. See United States v. Raper, 676 F.2d 841, 849 (D.C. Cir. 1982) ("there must be a guilty principal before a second party can be found to be an aider and abettor" (citations omitted)).

Assuming that a reasonable jury could have concluded that Dashtizadeh bribed xxxxx for sticker T217137, there is insufficient evidence to show that xxxxxx knew xxxxx was taking a bribe from Dashtizadeh for sticker T217137 and that xxxxxx specifically intended that particular bribery to occur. Even if the jury concluded that xxxxxx (1) was immersed in corrupt conduct with other inspectors (which is counterintuitive because the jury acquitted him on every count, including the conspiracy count, except for count 7); (2) signed out sticker T217137; (3) had control of the sticker; (4) wrote the sticker number on the inspection card; and (5) punched the inspection card despite the absence of a vehicle for inspection, the evidence that xxxxx obtained the sticker directly from xxxxxx or that xxxxxx handed it to someone else knowing that he was participating in a specific instance of bribery is too attenuated. Given the testimony of xxxxx, xxxxxx, and Vincent showing that stickers could be handed out without any specific understanding of what they would be used for, it is speculative to conclude that xxxxxx gave sticker T217137 to xxxxx on a particular occasion, directly or indirectly, with the requisite mens rea to support conviction on count 7 under an aiding and abetting theory. See Wilson, 160 F.3d at 737 (government's "'web of inference is too weak to meet the legal standard of sufficiency'"). Because the evidence does not bear out the government's assertion below that xxxxxx "assisted Mr. xxxxx in this particular bribery[,]" Tr. 11:13, xxxxxx's conviction on count 7 should be vacated.

B. xxxxxx's Alternative Motion for a New Trial on Count 7 Should Have Been Granted.

1. Standard of Review.

The denial of a motion for a new trial is reviewed for abuse of discretion. See United States v. Dale, 991 F.2d 819, 838 (D.C. Cir. 1993).

2. Discussion.

A district court may grant a new trial "if required in the interest of justice." Fed. R. Crim. P. 33. The error must have "affected the defendant's substantial rights." United States v. xxxxxx, 769 F. Supp. 389, 395-96 (D.D.C. 1991). When a new trial request is based upon an evidentiary challenge, "'the evidence must preponderate heavily against the verdict, such that it would be a miscarriage of justice to let the verdict stand.'" United States v. Edmonds, 765 F. Supp. 1112, 1118-19 (D.D.C. 1991) (quoting United States v. Martinez, 763 F.2d 1297, 1312-13 (11th Cir. 1985)). A new trial may be granted to "cure improper instructions." United States v. Guthrie, 814 F. Supp. 942, 947 (E.D. Wash. 1993) (citing Charles Wright, 3 Federal Practice and Procedure: Criminal, 556 (1982)), aff'd, 17 F.3d 397 (9th Cir. 1994). Where the "jury has been offered two possible grounds for conviction, one of which is legally inadequate, . . . 'a verdict [must be] set aside . . . where the verdict is supportable on one ground, but not another, and it is impossible to tell which ground the jury selected.'" See United States v. Perkins, 161 F.3d 66, 73 (D.C. Cir. 1998) (quoting Yates v. United States, 354 U.S. 298, 312 (1957) (additional citation omitted)).

Even if it is determined that the motion for judgment of acquittal was properly denied, this case should be remanded for a new trial on count 7. With a discrete bribery charge, the issue usually is not whether the transaction occurred, but whether the defendant had the corrupt mens rea necessary to support a conviction. Here, the issue is unusual, because the conviction rests on evidence that does not even show who took the particular alleged bribe. The giving of the aiding and abetting instruction was tantamount to converting count 7 into a conspiracy charge and the instruction allowed the jury to convict xxxxxx improperly on a Pinkerton rationale. See Pinkerton v. United States, 328 U.S. 640, 647 (1946) (acts in furtherance of a conspiracy are attributable to all conspirators "for the purpose of holding them responsible for the substantive offense"). Due process requires more. Because the instruction was improper, because it is impossible to discern the theory on which the jury convicted xxxxxx, and because the weight of the evidence preponderates against the verdict, xxxxxx should receive a new trial on count 7 if his conviction is not otherwise vacated.

III. THE DISTRICT COURT ERRED IN ITS RELEVANT CONDUCT CALCULATIONS CONCERNING xxxx AND xxxxxx BECAUSE IT FAILED TO MAKE SPECIFIC FINDINGS AS TO WHEN THEY JOINED THE CONSPIRACY AND WHY THE ACTIVITIES OF CO-CONSPIRATORS WERE REASONABLY FORESEEABLE.

A. Standard of Review.

The district court's loss calculations under the Sentencing Guidelines are reviewed for clear error. See United States v. Leonzo, 50 F.3d 1086, 1088 (D.C. Cir. 1995).

B. Legal Standards for Attributing Relevant Conduct at Sentencing.

Under the Sentencing Guidelines, a defendant is sentenced on the basis of all relevant conduct. U.S.S.G. 1B1.3. Bribes paid to a third party are attributable to a defendant as relevant conduct only if they are within the scope of jointly undertaken criminal activity and only if the conduct of the third party was reasonably foreseeable to the defendant. U.S.S.G. 1B1.3, Application Notes 1-2; United States v. Saro, 24 F.3d 283 (D.C. Cir. 1994); United States v. Anderson, 39 F.3d 331 (D.C. Cir. 1994). Relevant conduct must be proven at sentencing by a preponderance of the evidence. See, e.g., United States v. Shorubi, 998 F.2d 84, 89 (2d Cir. 1993) (stating in drug prosecution that "[f]indings based on estimates are necessarily predicated on surmise and conjecture"); see also United States v. Santiago, 906 F.2d 867 (2d Cir. 1990). The government bears the burdens of production and persuasion in proving relevant conduct. Leonzo, 50 F.3d at 1088. In a conspiracy case, a sentencing court "must make particularized factual findings" regarding the relevant conduct attributable to a defendant. Anderson, 39 F.3d at 352 (conspiracy to distribute cocaine). When facts are disputed, a sentencing court should not rely on findings that are "internally contradictory, implausible, or in direct conflict with evidence . . . at trial." United States v. Pinnick, 47 F.3d 434, 437 (D.C. Cir. 1995) (citing Saro, 24 F.3d at 291).

C. The District Court Committed Clear Error In Its Loss Calculations As to Both xxxx And xxxxxx.

The district court's loss calculations were clearly erroneous because it attributed bribe amounts to xxxx and xxxxxx dating back to 1991-92 without pointing to specific facts showing when they joined the conspiracy and because it attributed bribe amounts to both of them that were not reasonably foreseeable in furtherance of jointly undertaken criminal activity. The evidence shows that inspectors cooperated on an informal, ad hoc basis, and that the inspectors had their own customers. The conspiracy had no apparent leader and no ascertainable structure. At bottom, the factual basis for the district court's relevant conduct calculations was too weak to meet the standards required for loss calculations at sentencing.

1. xxxx.

While the jury convicted xxxx of conspiring to take bribes beginning in April 1997, the evidence that he was involved in a conspiracy before February 1996 -- the earliest time supported by Goodwin's testimony -- was wanting. At sentencing, moreover, the district court erroneously shifted the burden of production to xxxx. The fact that xxxx began working at the inspection station in 1991 shows only mere presence. Similarly, the fact that Otoo purchased a large volume of stickers from other inspectors who had corrupt ties to xxxx does not lead to an inference that xxxx was aware of or reasonably could have foreseen that volume. If xxxx had been held responsible only for third party sales with an evidentiary link to him, the loss amount would have been $14,360.00 (which would have resulted in a total offense level of 15 and a sentencing range of 18-24 months). If xxxx had been held responsible for all sales to middlemen, regardless of the evidentiary connection to xxxx, but limited to the time period 1996-98, the loss amount would have been $37,175.00 (which would have resulted in a total offense level of 16 and a sentencing range of 21-27 months).

2. xxxxxx.

Although xxxxxx admitted to participating in some corrupt activity with other inspectors, the evidence of when he joined the conspiracy is wanting for him as well. There was no evidence that xxxxxx was directly engaged in corrupt conduct as far back as 1992. The district court held him responsible for the entire period of his employment (adjusted for periods away from the job) without pointing to specific facts to support a finding of when he joined the conspiracy.

As with xxxx, Otoo testified that he did not buy stickers from xxxxxx, and the evidence that the volume of Otoo's purchases was reasonably foreseeable to xxxxxx is not strong enough, particularly given the comparatively small scale of corrupt conduct to which other middlemen testified. As Wells testified, he did not "think [xxxxxx] would know" how much business xxxxxx, xxxxxx, and xxxxx were doing with Otoo. Tr. 2/19:52-53. The amount of money that xxxxxx gained from selling stickers himself was estimated to be less than $1,500. While xxxxxx and xxxxx stated that xxxxxx sometimes helped them, they did not provide any numbers. During the sentencing proceedings, the government could point to only ten fraudulent stickers where xxxxxx played an ascertainable, direct role in the inspection process. While the government attributed this lack of evidence to the care exercised by xxxxxx in preparing supporting paperwork, Tr. 2/19:84, that assertion was speculative, and amounts to an argument that individuals without criminal records are simply individuals who have not been caught. At the end of the day, if the district court had attributed third party bribe amounts to xxxxxx only beginning in 1994 -- which is the earliest year for which xxxxxx contended he should be held responsible -- and if third party payments with an insufficient evidentiary link to xxxxxx had been excluded, then the loss amount attributable to xxxxxx would have been less than $20,000.00 (which would have resulted in a total adjusted offense level of 13 and a sentencing range of 12-18 months). (24)

In United States v. Fuentes, 991 F.2d 700 (11th Cir. 1993), the court held that a defendant may be sentenced only for reasonably foreseeable acts by coconspirators in furtherance of the conspiracy. In Fuentes, the court found that the defendant joined a conspiracy on a certain date when the defendant bought stolen credit cards. Id. at 701. One week earlier, a coconspirator had also purchased a stolen credit card. Id. The court held that the earlier purchase was not reasonable foreseeable to the defendant. Id. So here, the amounts that the district court attributed to xxxx and xxxxxx were not reasonably foreseeable in substantial part (particularly with respect to Otoo), and the district court's findings as to when xxxx and xxxxxx joined the conspiracy were not sufficiently particularized. Accordingly, if the convictions of xxxx and xxxxxx are not vacated on the ground that the district court lacked subject matter jurisdiction, their cases should be remanded for resentencing.

CONCLUSION

For the reasons stated above, appellants Ellis xxxxxx, Leon xxxx, and Darryl xxxxxx respectfully request that their convictions be vacated and that their cases be remanded with instructions to dismiss the indictment. If that relief is not afforded, xxxxxx requests that his conviction on count 7 be reversed. xxxxxx requests in the alternative that his conviction be vacated and that his case be remanded for a new trial on count 7. Finally, xxxx and xxxxxx request in the alternative that their cases be remanded for resentencing.





Respectfully submitted,



A.J. KRAMER

FEDERAL PUBLIC DEFENDER







_______________________________

GREGORY L. POE

Assistant Federal Public Defender

625 Indiana Avenue, N.W. #550

Washington, D.C. 20004

(202) 208-7500



Counsel for Darryl xxxxxx

_____________________________

EDWARD SUSSMAN

601 Pennsylvania Avenue, N.W.

Suite 900 Washington, D.C. 20004

(202) 737-7110



Counsel for Ellis xxxxxx











_____________________________

H. HEATHER SHANER

1702 S Street, N.W.

Washington, D.C. 20009

(202) 265-8210



Counsel for Leon xxxx

CERTIFICATE OF LENGTH

I hereby certify, in accordance with Fed. R. App. P. 32(a)(7), that this brief contains 13,956 words.





CERTIFICATE OF SERVICE

I hereby certify that two copies of the foregoing Brief of Appellants was served on the 18th day of February, 2000, 1999, upon Jean W. Sexton, Assistant United States Attorney, 555 Fourth Street, N.W.,Washington, D.C. 20001, Room 8225, by hand delivery.





______________________________

Gregory L. Poe

Assistant Federal Public Defender

Last updated: Apr 9 , 2001 (Mon) at 11:26am

C:\brief.opening

1. While one of the issues in this appeal is whether the district court lacked subject matter jurisdiction, "[a] federal court always has jurisdiction . . . to decide whether it has jurisdiction and, if it decides that it does not, to take appropriate action." Hart & Wechsler's The Federal Courts and the Federal System at 836 (2d ed. 1973) (citing Mansfield, Coldwater, & Lake Michigan Railway v. Swan, 111 U.S. 379 (1884)).

2. References to the Joint Appendix are in the form "J.A. __." References to the twelve-volume trial transcript are in the form "[volume]:[page]." References to other transcripts are in the form "[month/day]:[date]."

3. By consent, the indictment submitted to the jury was a retyped version that excluded the counts against xxxxxx and renumbered the remaining counts.

4. Another indictment made similar allegations concerning corruption at the Southwest station. None of the Southwest defendants went to trial.

5. During the period of time charged in the indictment, there were no female inspectors. Tr. 4:98.

6. Sticker T217137 was also the subject of overt act 42 in the conspiracy count and the forgery charge in count 6. J.A. 104, 110. Overt act 42 alleged that xxxxxx, xxxx, and xxxxxx forged an inspection card to indicate that sticker T217137 was placed on a vehicle. J.A. 104. Count 6 charged that xxxxxx and xxxx forged that card. J.A. 110. xxxxxx was acquitted on count 1. Both xxxx and xxxxxx were acquitted on count 6.

7. Two other middlemen who testified that they bought stickers from xxxxx stated that they knew him as "Doc." Otoo, who testified that he had been going to the inspection station for years, was not familiar with the name "Charles xxxxx." Tr. 6:97. Razjooyan also knew xxxxx only as "Doc." Tr. 7:37, 43-44, 120.

8. Discussion concerning the aiding and abetting issue, in both the Rule 29 and jury instruction contexts, appears in the trial transcript at 11:9-13, 36-39, and 113-16.

9. The government did not argue an aiding and abetting theory to the jury on count 7. During rebuttal, the government stated that "xxxxx, as defense counsel points out, isn't even on [the inspection card corresponding to sticker T217137]. So who did Mr. Dashtizadeh bribe in order to get Prem Randhawa's sticker? The evidence you have is that he bribed Daryl xxxxxx." Tr. 12:120. Earlier in closing, the government stated that Dashtizadeh dealt with xxxxx and xxxxxx, but argued that Dashtizadeh paid money to xxxxxx. Tr. 12:36-37, 49. (10)

10. The government argued that Dashtizadeh knew xxxxx as "Doc." Tr. 12:36-37. Dashtizadeh did not testify that he knew xxxxx as "Doc." " ' '" - "" - ""

11. Greipp also testified that 142 illegal stickers were seized from taxicabs during a six month period. Tr. 2/19:65. As an alternative method for calculating relevant conduct, the government asked the district court to extrapolate those numbers over the six years that xxxxxx had been employed at the inspection station. According to the government, "probably less than 10" of the 142 stickers could be traced in any way to xxxxxx. Tr. 2/19:84.

12. While recognizing that xxxxxx was at a disadvantage because he did not participate in the trial, the district court relied in part on trial testimony of xxxxxx and xxxxx that they had engaged in illegal activities with xxxxxx. Tr. 3/30:27.

13. The jurisdictional issue in this appeal apparently was not raised in Neville. Before 1962, District of Columbia government officials were subject only to a local corruption statute passed by Congress in 1936. See D.C. Code 22-704 note (49 Stat. 1143, ch. 87). That statute as amended is codified at D.C. Code 22-704.

14. Section 11717 of Title IX of Pub. L. 105-33, 111 Stat. 786 (the National Capital Revitalization and Self-Government Improvement Act of 1997) replaced references to the "Self-Government and Governmental Reorganization Act" with references to the "Home Rule Act."

15. D.C. Code 1-232 states that "unless specifically provided otherwise . . . the term 'Act' means an Act of the Congress . . . . The term 'act' means an act of the Council."

16. After the decision in Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983) (holding one-house veto unconstitutional), the Congressional review procedures in the Home Rule Act were amended. See United States v. Alston, 580 A.2d 587, 591 (D.C. 1990). The Home Rule Act now provides that local legislation takes effect at the end of the review period unless "there has been enacted into law a joint resolution disapproving such act." See 1-233(c)(2). Other review processes, not material to this appeal, apply in other contexts. See, e.g., Hessey, 601 A.2d at 9 (discussing the procedure by which the Mayor and the Council must "annually submit a budget request to the President for submission to Congress for approval").

17. Congress repealed NARA in 1987. Id. at 213 n. 2.

18. Moreover, the issue in McConnell arose in peculiar circumstances. The judicial application of NARA to D.C. Code offenders after passage of the Home Rule Act was based not the legislative exercise of any constitutional power over the District, but on the uncertain proposition that "NARA historically has been available to judges of the District of Columbia Superior Court as a sentencing alternative for individuals convicted under District law[.]" McConnell, 537 A.2d at 213 (citing cases). McConnell also states that "crimes committed in the District are considered crimes against the United States." Id. (citing Metropolitan Railroad Co. v. District of Columbia, 132 U.S. 1, 9 (1889)). While that may have been true when the District was merely a municipal corporation -- which was the case in Metropolitan Railroad Co. -- it has not been the case since the Home Rule Act was passed. If an "offense against the United States" included a crime under the D.C. Code after passage of the Home Rule Act, then the United States District Court would have jurisdiction over all D.C. Code offenses under 18 U.S.C. 3231, and all conspiracies to violate provisions of the D.C. Code would be chargeable in federal court under 18 U.S.C. 371. Neither of those propositions is true. Furthermore, the prohibited crime of bribery in D.C. Code 22-712, under the statute's plain language, is against the District of Columbia, not the United States.

19. Even if McConnell and GWCLC supported the district court's interpretation of 1-233(a)(3), those decisions are not binding on this Court. The Home Rule Act is a "'hybrid statute' that contains elements of both federal and local law." Bliley v. Kelly, 23 F.3d 507, 511 (D.C. Cir. 1994). Where interpretive questions "concern[] an exclusively federal aspect of the Act," a federal court owes a ruling of the "D.C. Court of Appeals no more than the deference that is always due the decisions of a sister court." Id. As the district court recognized, the question at issue involves an exclusively federal aspect of the Home Rule Act. J.A. 193.

20. The pro tanto repeal of 18 U.S.C. 201(b)(2) is further evidenced by the 1982 amendment -- also in D.C. Law 4-164, 601(f) -- of D.C. Code 23-546, the D.C. wiretap statute. See D.C. Code 23-546 and notes thereto. That amendment authorizes the United States Attorney to apply for a wiretap order in connection with "[a]ny of the offenses specified in the District of Columbia Theft and White Collar Crimes Act of 1982," including D.C. Code 22-712. Just as Congress approved the prohibitions in the new local bribery law, it approved a new local means of enforcing that law.

21. Moreover, by passing the Home Rule Act, and by approving the D.C. Council's 1982 bribery enactments, Congress put D.C. public officials, vis-a-vis 18 U.S.C. 201(b)(2), in the same position as employees of any state or local government, which gives rise to an equal protection violation under the Fifth Amendment when a bribery prosecution against D.C. public officials proceeds under 201(b)(2). Cf. Palmore v. United States, 411 U.S. 389, 410 (1973) (rejecting the argument that a defendant suffers invidious discrimination when he is tried in an article I court in the District of Columbia for a violation of an act of Congress that applies only within the District when he would be tried elsewhere in the United States before an article III court for a violation of a nationally-applicable federal statute).

22. Moreover, the documents contain inconsistencies casting a further shadow on whatever confidence otherwise may be put in the verdict on count 7. According to the November 6, 1997 lane report, xxxxxx issued stickers T217131-134 on November 6, 1997, and had T217135-140 on hand. According to the sticker inventory log, "D. xxxxxx" signed out T217131-140 on November 6, 1997. According to the daily log, "D. xxxxxx" signed in sticker T217139 on November 6, 1997, and signed out T217139 on the morning of November 7, 1997. J.A. 269-72. The conflicting testimony of Loney and Vincent concerning when lane reports were turned in also brings into question the reliability of the documentary evidence.

23. Especially close scrutiny is required in this case concerning the sufficiency of the evidence because the jury heard from different witnesses that xxxxxx participated in numerous uncharged illegal acts before the period of the conspiracy alleged in the indictment. Tr. 3:22, 9:153-54. See United States v. Salamanca, 990 F.2d 629, 638 (D.C. Cir. 1993) ("sufficiency of the evidence warrants particular scrutiny when the evidence strongly indicates that a defendant is guilty of a crime other than that for which he was convicted, but for which he was not charged. Under such circumstances, a trier of fact, particularly a jury, may convict a defendant of a crime for which there is insufficient evidence to vindicate its judgment that the defendant is blameworthy"). Such heightened scrutiny is even more appropriate in light of xxxxxx's acquittals on the forgery charge in count 6 relating to sticker T2127137 and the conspiracy charge in count 1 (which listed the forgery allegation relating to the sticker as overt act 42).

24. Because the district court gave a range of relevant conduct as to xxxxxx, rather than a specific number, it was difficult to determine where any proffered reduction might leave him. Many of the proceedings that the district court relied upon in making its relevant conduct determinations -- including the 24 pleas taken by the district court and the trial evidence -- did not focus on the amount of money garnered during the conspiracy and certainly did not focus on the extent of xxxxxx' participation.