No. 99-3050

Consolidated with Nos. 99-3104, 99-3108



UNITED STATES OF AMERICA,       Plaintiff-Appellee,



xxxxxxx xxxxxxx, ET AL.,                                  Defendants-Appellants.








            The government’s argument falls short on every issue in this appeal. With respect to the D.C. Council’s power to initiate repeals of Acts of Congress, the government first argues that the meaning of D.C. Code § 1-233(a)(3) is plain, when the relevant language in the provision, on its face, is susceptible to three interpretations. The government also misses the mark by contending that the D.C. Council has the power to initiate repeals only of an entire “Act of Congress.” If that were true, the Council’s exercise of local power would be entirely at the mercy of whether Congress happened to pass a discrete Act concerning the District or happened to include a provision concerning the District in a larger enactment. Furthermore, although the government argues that there are sources for Congress’ exercise in 1962 of power over the District in 18 U.S.C. § 201 apart from article I, section 8, clause 17, there is no apparent factual nexus supporting the notion that Congress exercised constitutional power of national scope over the District when the 1962 Act was passed.

            The government fares no better in contending that no implied repeal of 18 U.S.C. § 201, as applied to District of Columbia public officials, occurred in 1982. By citing the Council’s express repeal in 1982 of various D.C. Code provisions as an argument for why no implied pro tanto repeal of 18 U.S.C. § 201 occurred, the government relies on an inconclusive canon of construction, and fails to analyze the evidence of implied repeal. Indeed, the government goes so far as to state that “no evidence” of an implied repeal occurred, while ignoring the 1982 Clarke Report concerning the 1982 legislation, and while barely mentioning the contemporaneous Senate Report showing a Congressional expectation that D.C. officials were to be removed from the scope of 18 U.S.C. § 201. The government also purports to rely on Congress’ post-1982 failure to remove the reference to District of Columbia public officials, despite opportunities to do so, while ignoring the fact that its position conflicts with one that it took concerning subsequent legislative inaction before the District of Columbia Court of Appeals in United States Parole Commission v. Noble, 693 A.2d 1084 (D.C. 1997), adhered to, 711 A.2d 85 (D.C. 1998) (en banc). In the end, the government sidesteps the constitutional problems created by its construction of the relevant statutes only by characterizing a difficult issue as one-sided.

            As for appellant Darryl Johnson’s conviction on a single bribery count, the government does not even entertain the questions of whether Johnson handed a sticker to Charles Banks or someone else without the requisite criminal mens rea and whether the sticker was eventually sold by Banks to Mohammed Dashtizadeh without guilty knowledge by Johnson. In fact, the government does not even cite, much less discuss, the trial evidence showing that stickers were sometimes handed from one inspector to another without knowledge of what would be done with the sticker, or the trial evidence concerning irregular procedures at the inspection station. Instead, the government makes what amounts to an invalid Pinkerton argument in the aiding and abetting context. Because aiding and abetting liability requires proof of a criminal mens rea with respect to the specific charged bribe, however, and because that evidence is missing here, Johnson’s conviction should be vacated even if the Court determines that subject matter jurisdiction exists. Footnote






            A.        The D.C. Council Had The Power

                        To Initiate a Pro Tanto Repeal

                        of 18 U.S.C. § 201 in 1982.

            The government’s first contention is that the D.C. Council lacked authority to initiate a pro tanto repeal of 18 U.S.C. § 201 because D.C. Code § 1-233(a)(2) “very plain[ly]” forbids such action. GB 23. Footnote For that proposition, the government quotes the pertinent statutory language -- which provides that the Council “shall have no authority” to “[e]nact any act, or enact any act to amend or repeal any Act of Congress, . . . which is not restricted in its application exclusively in or to the District” -- and then states that the “federal bribery statute does not apply exclusively in or to the District of Columbia.” GB 23 (emphasis in government’s brief). In other words, the government simply assumes that the term “which” applies only to the phrase “Act of Congress.”


            The government’s reading of the statute is too facile. The term “which” in § 1-233(a)(3) arguably may refer to the phrase “Act of Congress;” it may refer to the term “act;” or it may refer to both. If the term “which” is read to refer only to the phrase “Act of Congress,” as the government would have it, then the first three words of the provision (“Enact any act”) dangle meaninglessly, which violates a fundamental principle of statutory interpretation. See United States v. Menasche, 348 U.S. 528, 539 (1955) (courts have a duty to “give effect, if at all possible, to every clause and word of a statute”) (quoting Montclair v. Ramsdell, 107 U.S. 147, 152 (1883)). If the term “which” is read to refer to the term “act,” however, then every word of the statute holds meaning. If the term “which” is read to refer both to the term “act” and the phrase “Act of Congress,” then no statutory language is left dangling, but the construction is awkward, and thus less desirable, than the second alternative. Moreover, the second alternative is more consistent with the overall design and purpose of the Home Rule Act. Cf. McCarthy v. Bronson, 500 U.S. 136, 139 (1991) (“statutory language must always be read in its proper context”). Accordingly, because the D.C. Council’s 1982 act applies exclusively in and to the District of Columbia, the question of implied repeal should have been reached by the district court.

            Even if the government’s construction of the statute were correct, the D.C. Council may initiate a pro tanto repeal of an Act of Congress under D.C. Code § 1-233(a)(3) to the extent that the Act of Congress is passed pursuant to article I, section 8, clause 17. The Council, like any legislative body, may initiate a pro tanto repeal within the scope of its power. See AOB 27. Footnote The concern in the Home Rule Act was in limiting the Council’s power “exclusively in or to the District.” By initiating the exclusion of District of Columbia public officials from the scope of a statute that happens to be in the United States Code, the Council would not overstep those bounds, particularly given Congress’ oversight function.

            The Council’s power to initiate a pro tanto repeal of an Act of Congress, to the extent that it flows from Congress’ constitutional power over the District, is reflected in another provision of the Home Rule Act, D.C. Code § 1-208(b), which provides 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, except that, notwithstanding the provisions of § 1-1307, such authority to repeal shall not be construed as authorizing the Council to repeal or otherwise alter, by amendment or otherwise, any provision of subchapter III of Chapter 73 of Title 5, United States Code, in whole or in part.

See D.C. Code § 1-208(b). D.C. Code § 1-1307 concerns the D.C. Council’s authority over local elections; subchapter III of Chapter 73 of Title 5 of the United States Code concerns political activities of governmental employees, including District of Columbia employees. See 5 U.S.C. § 7322. By passing § 1-208(b) as part of the Home Rule Act, Congress specifically precluded a pro tanto repeal of laws in the United States Code governing the political activities of District employees, but did not see fit to preclude a pro tanto repeal of other laws in the United States Code applicable to District of Columbia employees, such as 18 U.S.C. § 201. Indeed, the reference to “law[s] and regulation[s]” that preexisted January 1, 1975 makes no distinction between “Acts of Congress” that apply solely to the District and “Acts of Congress,” like the 1962 Act overhauling the federal bribery laws, that affect the District only through application to a defined group of persons -- in this case, public officials.


            To embrace the government’s argument would require acceptance of the proposition that any Act of Congress that happens to contain a discrete provision concerning the District would lie outside of the D.C. Council’s reach, while an Act of Congress that happens to concern only the District would be fair game for the Council. But no evidence suggests that Congress intended Home Rule to be subject to the vagaries and gamesmanship of the federal legislative process. To the contrary, the D.C. Council initiated, in the 1982 Act itself, an express repeal of D.C. Code § 22-2306, prohibiting extortion, that had been passed as a small part of the federal Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 238, due to a last minute floor amendment by Senator Tydings. See GB Addendum at A-50; Holt v. United States, 565 A.2d 970, 973 (D.C. 1989) (en banc) (describing how provision was added); Battle v. United States, 515 A.2d 1120, 1125 n. 13 (D.C. 1986) (noting that a redefined extortion provision [passed as part of the Council’s 1982 act] is codified at D.C. Code § 22-3851). Footnote

            As D.C. Code § 1-208(b) shows, Congress knew how to act specifically to keep hybrid portions of the United States Code out of the D.C. Council’s reach when it passed the Home Rule Act. As the repeal of D.C. Code § 22-2306 shows, Congress has given its blessing at least once to an effort by the D.C. Council to repeal a provision of the D.C. Code that was part of a much broader Act of Congress. Because statutory interpretation is guided not “by a single sentence or member of a sentence” but by “the provisions of the whole law, and [] its object and policy[,]” Pilot Life Insurance Co. v. Dedeaux, 481 U.S. 41, 51 (1987), and because “[s]tatutory text is to be interpreted to give consistent and harmonious effect to each of its provisions[,]” Alabama Power Co. v. EPA, 40 F.3d 450, 455 (D.C. Cir. 1994) (citations omitted), the government’s argument on this score should be rejected.

            Discussing the legislative history behind the 1962 bribery enactment, the government asserts that “when Congress included District officials within the ambit of the statute, it was acting to protect the Federal interest as a whole rather than out of any concern for the District’s local activities.” GB 28-29. There are two problems with that statement. First, the government does not explain how local corruption implicates a “Federal interest” of national scope; the 1962 legislative history itself distinguishes federal officials and District officials. See United States v. Neville, 82 F.3d 1101, 1104 (D.C. Cir. 1996) (“the relevant committee reports suggest that Congress intended ‘public official’ to include all federal and D.C. officers without further qualification”).

            Second, the constitutional source of legislative power is important, and the government does not explain how Congress may legislate on a purely local matter apart from its power under article I, section 8, clause 17. While arguing that appellants are improperly “parsing out the federal bribery statute into ‘local’ and ‘national’ components,” GB 27, the government does not offer a valid constitutional basis apart from article I, section 8, clause 17 to justify Congress’ inclusion of District of Columbia public officials in the 1962 bribery statute. The government states that Congress could have included District of Columbia public employees in the 1962 statute pursuant to its power to regulate interstate commerce, GB 31, and further speculates that Congress was “likely acting pursuant to its authority under the ‘necessary and proper’ clause, or, as with the other federal bribery statute, 18 U.S.C. § 666, pursuant to its power to tax and spend in aid of general welfare.” GB 31. That argument is lacking because there is no factual nexus for the exercise of nationally-applicable constitutional power over District employees in 18 U.S.C. § 201. Pursuant to Congress’ spending power, Congress may prohibit bribery of state officials, District of Columbia officials, and even private persons, when federal funds are sufficiently implicated -- and it has, in 18 U.S.C. § 666. See Salinas v. United States, 522 U.S. 52, 118 S.Ct. 469, 472, 474 (1997) (statute not “limited to cases in which a bribe has a demonstrated effect upon federal funds”); United States v. Roberts, 28 F. Supp. 2d 741, 743 (E.D.N.Y. 1998) (§ 666 enacted pursuant to spending power). Similarly, under the Commerce Clause, Congress may legislate over the District, or any State, provided that an appropriate factual nexus exists. See United States v. Lopez, 514 U.S. 549, 551 (1995) (holding that Gun Free School Zones Act of 1990 exceeded Congress’ authority to regulate commerce). But there is no evidence to suggest that either of those sources of power underlies the application of 18 U.S.C. § 201 to District of Columbia public officials. As for the necessary and proper clause, the government fails to explain how it constitutes a source of authority over the District independent of any other constitutional provision, and offers no evidence to suggest that it was the ostensible source of power for the application of 18 U.S.C. § 201 to District of Columbia public officials in 1962. Cf. Consumer Energy Council of America v. FERC, 673 F.2d 425, 455 (D.C. Cir. 1982) (“The Necessary and Proper Clause does not override other provisions of the Constitution”), aff’d, 463 U.S. 1216 (1983). Footnote

            The government also points to the existence of a 1936 Act of Congress prohibiting local bribery, now codified at D.C. Code § 22-704 (providing for a penalty of six months to five years), and contends that “there was no reason for Congress to use its ‘local’ authority [in 1962] -- as suggested by appellants -- to include District officials. Rather, the implication is, again, Congress wanted concurrent federal jurisdiction over bribery offenses with a federal nexus.” GB 30. The defect in that argument is threefold. First, legislative bodies frequently create overlapping laws pursuant to the same constitutional power -- as evidenced by the fact that the District of Columbia Council (and, ultimately, Congress by virtue of the review process) enacted D.C. Code § 22-712 in 1982 and left D.C. Code § 22-704 in place. Footnote Second, Congress may have chosen in 1962 to increase the penalty for District of Columbia public officials convicted of bribery from a maximum of five years to fifteen years and loss of office by an expedient method, as it did in the comprehensive revisions leading to 18 U.S.C. § 201, without involving itself in the fine points of amending or repealing D.C. Code § 22-704. Third, the government’s reference to Congress’ ostensible desire for “concurrent federal jurisdiction” is perplexing because charged violations of 18 U.S.C. § 201 and 22 D.C. Code § 22-704 were both tried in the United States District Court for the District of Columbia in 1962. Footnote In the end, whatever Congress’ intent may have been in 1962, the 1936 statute does not bear on the question of the D.C. Council’s power in 1982 to initiate a pro tanto repeal of the local application of an otherwise federal statute passed in 1962.

            Finally, the government’s discussion of the relevant case law is wanting. The government is content to read Greater Washington Central Labor Council, 442 A.2d at 116, just as the district court did. GB 27. As appellants’ opening brief shows, the Secretary of Labor’s authority over the District’s workers compensation program was given in the United States Code, but that did not stop the D.C. Court of Appeals from holding that the D.C. Council had the authority to pass a new workers compensation law and repeal one passed by Congress in 1928. AOB 29-30. The government makes no effort to address this issue.

            In the same vein, the government reads McConnell v. United States, 537 A.2d 211 (D.C. 1988), just as the district court did, and quotes the district court’s decision at length. GB 24-27. But the government fails to recognize that the statute at issue in McConnell -- the now-repealed Narcotic Addicts Rehabilitation Act of 1966, 18 U.S.C. §§ 4251-55 -- was not grounded, in whole or in part, in article I, section 8, clause 17, and the government also does not grapple with the fact that the statute was apparently applied by judges of the Superior Court, after passage of the court reform act in 1970 and the Home Rule Act in 1973, only as a matter of custom. See AOB 28-29.

            In a footnote, the government attempts to circumvent McConnell’s peculiarity by arguing that “‘[v]iolations of the District of Columbia Code and violations of the United States Code are all crimes against a single sovereign, namely the United States.” GB 25-26, n. 19 (quoting Goode v. Markley, 603 F.2d 973, 976 (D.C. Cir. 1979)). That argument ignores the context-specific inquiry required in any legal dispute involving the District of Columbia’s status. In Goode, no claim was made that the Home Rule Act was implicated, and the decision makes no reference to the Home Rule Act. Against that background, Goode simply ruled, for purposes of sentence aggregation when a person is serving prison terms for both a United States Code offense and a D.C. Code offense after convictions in federal and local courts in the District of Columbia, that the sentences are “imposed by the same sovereign.” Id. In the alternative, Goode held that the prisoner still would have had no claim for a parole hearing if the District of Columbia were a “separate sovereign for this purpose[.]” Id. at 977.

            The more pertinent case, which the government does not cite, is United States v. Mills, 964 F.2d 1186 (D.C. Cir. 1992) (en banc). In Mills, defendants were charged in the Superior Court with drug distribution offenses under the D.C. Code. Well after the 30-day indictment period in the federal Speedy Trial Act had passed, the government transferred the cases to federal court and obtained indictments against defendants for the same conduct. Defendants contended that the government violated 18 U.S.C. § 3161(b), which contains the 30-day rule, and moved to dismiss the indictments. The en banc court rejected that argument, ruling that the term “arrest” in § 3161(b) encompassed only arrests for “Federal criminal offense[s]” referenced in 18 U.S.C. § 3172, and did not include “D.C. offenses when they happened to encompass conduct made criminal by federal law.” Id. at 1191.

            Mills makes clear that the “United States” and the “District of Columbia” may or may not be treated as distinct entities depending upon the context. See 964 F.2d at 1190-91. Among other things, Mills states that “‘federal offenses’ do not encompass purely District of Columbia crimes,” id. at 1190 n. 6 (citing 18 U.S.C. § 3231), and states that the District may “adopt special rules” concerning speedy trial rights pursuant to the Home Rule Act. Id. at 1193 n.9. Because the government fails to account for the distinct nature of the District of Columbia and the United States under the circumstances of this case, therefore, its reading of McConnell should be rejected, and the question of implied repeal should be reached. Footnote

            B.        An Implied Repeal of 18 U.S.C. § 201

                        Occurred in 1982 as applied to District

                        of Columbia Public Officials.


            The government argues that no pro tanto implied repeal of 18 U.S.C. § 201 occurred in 1982 for several reasons. First, the government maintains that there is “no evidence of an implied repeal[.]” GB 18, 32. Second, the government states that the D.C. Council “failed to mention 18 U.S.C. § 201 despite its express repeal of fifty-eight other statutes in the same act.” GB 18. Third, the government points to the fact that “Congress amended the federal bribery statute in 1986 and 1994” without removing the language concerning the District of Columbia. GB 18. Fourth, the government assigns significance to the fact that Congress in 1984 passed another bribery statute, 18 U.S.C. § 666, that “again included District officials within its ambit.” GB 18. Finally, and most important, the government contends that there is “no repugnancy between [D.C. Code § 22-712 and 18 U.S.C. § 201].” GB 18. All of these arguments are unavailing and none addresses the constitutional problems created by the coexistence of D.C. Code § 22-712 and 18 U.S.C. § 201 as applied to District of Columbia public officials.

            The government glosses over the affirmative evidence of an implied repeal. As an initial matter, the government gives short shrift to the 1981 Senate Report concerning proposed 18 U.S.C. § 1351 because it was never enacted. GB 34. What the government does not address, however, is that “historical context, and the sequence of events leading to the passage of the law” are critical factors in “determining the legislative purpose of a law[.]” Bonham v. District of Columbia Library Administration, 989 F.2d 1242, 1244-45 (D.C. Cir. 1993). The Senate Report explicitly recognizes that bribery prosecutions of District of Columbia public officials would be localized by the actions of the D.C. Council. See AOB 25-26. The government never mentions the Clarke Report, which shows that the Council’s 1982 reform efforts were being made in lockstep with Congressional reform efforts. See AOB 25-26. As for the D.C. Council’s Committee Report, the government dismisses appellants’ citation to the Council’s stated desire to “consolidate and clarify the law[,]” contending that the stated purpose of the 1982 Council enactment was only to “‘reform the criminal laws of the District of Columbia.’” GB 33 (emphasis in government’s brief). The government’s selective quotation, however, misses the breadth of the preamble:

To reform the criminal laws of the District of Columbia relating to theft, receipt of stolen property, fraud, forgery, extortion, blackmail, bribery, prejury [sic], obstruction of justice, and criminal libel; and for other purposes.


See District of Columbia Theft and White Collar Crimes Act of 1982, D.C. Law No.4-164, Act No. 4-238, at 1. One of those “other purposes” includes the modification of 18 U.S.C. § 201(b)(2) as applied to District of Columbia public officials. Footnote

            The government attempts to make much of the fact that the D.C. Council’s 1982 enactment expressly repealed 58 provisions of the D.C. Code but did not expressly repeal 18 U.S.C. § 201 as applied to District of Columbia public officials. GB 33. In this regard, the government states that “[i]f the Council intended to repeal a portion of 18 U.S.C. § 201, and thought it had the power to do so, surely the Council would have mentioned this intent in the same section enumerating the repeals of 58 other statutes.” GB 33. That speculative argument is simply an invocation of the maxim expressio unius est exclusio alterius. By itself, that principle of construction is of limited utility. See Richard Posner, Statutory Interpretation in the Classroom and in the Courtroom, 50 U. Chi. L. Rev. (1983) (criticizing most canons of construction as resting upon an unrealistic view of the legislative process). What is more likely is that the D.C. Council, aware of Congressional efforts to remove District of Columbia public officials from the scope of 18 U.S.C. § 201(b)(2) in light of the Council’s own contemporaneous reform efforts, believed that an explicit discussion of 18 U.S.C. § 201(b)(2) was unnecessary and redundant.

            The government also contends that no implied repeal occurred because “Congress has amended 18 U.S.C. § 201 twice [in 1986 and 1994] since the passage of the District bribery statute without ever acting on the proposed exclusion of District officials.” GB 34. The first problem with that argument lies in its premise. The point is that Congress “act[ed] on the proposed exclusion of District officials” when it allowed the D.C. Council ’s 1982 enactment to become law. What the government is really arguing is that Congress’ failure to remove the language concerning the District of Columbia from 18 U.S.C. § 201, despite opportunities to do so in 1986 and 1994, is evidence that no implied repeal occurred in 1982. But Congress’ subsequent inaction concerning the text of 18 U.S.C. § 201(a)(1), with respect to the District of Columbia, has no probative force. See United States v. Wise, 370 U.S. 405, 411 (1962) (Congressional inaction lacks “persuasive significance” because “several equally tenable inferences” may be drawn from such inaction); Sullivan v. Finkelstein, 496 U.S. 617, 632 (1990) (Scalia, J., concurring) (“Arguments based on subsequent legislative history, like arguments based on antecedent futurity, should not be taken seriously”). After 1982, Congress simply may have decided not to meddle further with dead language in an already confusing statute. Cf. Neville, 82 F.3d at 1104 (§ 201(a)(1) is “[f]ar from a model of clarity”). Footnote

            The government assigns similar significance to Congress’ passage of a separate bribery statute in 1984, 18 U.S.C. § 666, that “included District officials within its ambit.” GB 34, n.23. As discussed above, however, that statute was passed under Congress’ spending power and has a national scope. It applies to state officials and even private persons when federal funds are sufficiently implicated. Congress’ application of the statute to District officials reflects an effort to treat the District like the fifty States for purposes of the statute’s prohibitions. To the extent that § 666 has any bearing on this case, therefore, its existence cuts in favor of appellants’ argument, not the government’s, because it affords the District and its officials equal treatment.

            Given its contention that the issue of statutory interpretation in this case is so one-sided, the government avoids any substantial analysis of the constitutional issues involved, relegating them to a passing discussion in a footnote. GB 35, n. 25. The government recognizes that “statutes should be construed to avoid constitutional questions when it is possible to do so” if a statute is “‘genuinely susceptible to two constructions after, and not before, its complexities are unraveled.’” GB 35, n.25 (quoting Salinas, 522 U.S. at 59-60). But the government offers no explanation for why D.C. Code § 22-712 and 18 U.S.C. § 201(b)(2), as applied to District of Columbia public officials, may coexist without offending Home Rule.

            Even if there were no affirmative evidence of an intent to repeal in this case, a “permissible justification for a repeal by implication is when the earlier and later statutes are irreconcilable.” Morton v. Mancari, 417 U.S. 535, 550 (1974) (citing Georgia v. Pennsylvania R. Co., 324 U.S. 439, 456 (1945)). Both statutory provisions at issue derive from article I, section 8, clause 17. If they obviously conflicted, then the government presumably would recognize the force of the implied repeal argument. But the statutes do not conflict obviously. The primary problem lies in the fact that the executive branch holds the sole power to respect or ignore the legislative exercise of article I power by the Council and Congress in 1982 under the process set forth in the Home Rule Act. Understandably enough, the executive branch is not inclined to recognize the conflict or give up the legislative power that it has effectively gained through custom and practice since 1982. Similarly, the government does not attach any significance to the disparate treatment afforded District of Columbia public officials as a result of the government’s construction of the applicable statutes. Footnote That the conflict is not obvious, however, does not lessen its effect. Accordingly, this Court should construe the relevant statutes to avoid the constitutional issues, and appellants’ cases should be dismissed for lack of subject matter jurisdiction. Footnote






            THE ALTERNATIVE.


            The government argues that sufficient evidence existed to convict Johnson both as a principal and as an aider and abettor on count 7 of the indictment. Footnote With respect to guilt as a principal, the government states that there was “powerful circumstantial evidence that Johnson sold inspection sticker No. T217137 to Dashtizadeh.” GB 38. For this proposition, the government focuses upon Dashtizadeh’s testimony that the sticker was purchased from either Banks or Johnson. GB 38-39. If no aiding and abetting instruction had been given, the government could not seriously contend that a rational jury could have concluded beyond a reasonable doubt that Johnson was bribed as a principal by Dashtizadeh. Because the evidence of guilt as a principal must be analyzed independently of the aiding and abetting theory, and because sufficient evidence of guilt as a principal is missing, the conviction must be reversed unless the evidence is sufficient to support Johnson’s guilt as an aider and abettor.


            The government’s discussion of the aiding and abetting theory is scant. Instead of identifying specific evidence to support a conclusion that Johnson aided and abetted another person in the specific charged bribery, the government simply asserts that “an aiding and abetting instruction was proper . . . because this was jointly undertaken criminal activity[.]” GB 39. The government goes on to state that “[t]he aiding and abetting instruction did not mention Banks by name. . . . The evidence showed that Johnson was aided by others as well.” GB 39 n.27. Footnote

            The government’s argument amounts to an assertion that Pinkerton liability exists outside of the conspiracy context. The question is whether the evidence shows beyond a reasonable doubt that Johnson had the requisite mens rea to support a conclusion that Johnson aided and abetted another person (the only potential candidate being Banks) on the specific charged bribe. Apart from noting what Johnson concedes -- that a reasonable jury could infer that custody of sticker number T217137 started with Johnson -- the government cites no evidence showing that Johnson specifically intended to help Banks commit the crime of bribery with respect to sticker T217137 or knew that Banks would take a bribe for sticker T217137.

            The government does not even mention, much less discuss, the evidence at trial showing that Banks may have received sticker T217137 without the necessary criminal mens rea on Johnson’s part. There was evidence that inspectors would sometimes hand stickers to others without knowing what the recipients would do with the stickers. See AOB 12. As Banks testified, he might hand a sticker to another inspector if there was a card presented and a representation that a vehicle had passed inspection, and he conceded that he would have no idea at that moment whether the requesting inspector’s purpose in asking for the sticker was innocent or criminal. Tr. 10:80-81. Brooks agreed that procedures at the inspection station were a “mess[.]” Tr. 3:35. It is entirely plausible, and consistent with the evidence at trial, to conclude that Brooks, whom the card corresponding to sticker T217137 indicates was the “writer” in the entrance booth, printed out a card for Banks, that Banks obtained an inspection punch on the card from Depp, that Banks then showed the card to Johnson and told Johnson that the vehicle on the card had passed, and that Johnson punched the card and handed sticker T217137 to Banks with no further understanding. That potential course of events, which is entirely consistent with Banks’ testimony and the trial evidence, does not prove a criminal mens rea on Johnson’s part as to the specific bribe on a specific date as charged in count 7. To suggest that other, generalized trial evidence of Johnson’s participation in a conspiracy (of which he was acquitted) permits an inference that Johnson had the requisite criminal mens rea concerning the specific charged bribe breaks the permissible “web of inference” in the aiding and abetting context. See United States v. Wilson, 160 F.3d 732, 737 (D.C. Cir. 1998). Accordingly, Johnson’s conviction should be reversed for insufficient evidence if the Court does not vacate the conviction for lack of subject matter jurisdiction. Footnote


            Concerning the alternative request for a new trial, the government argues that Griffin v. United States, 502 U.S. 46, 56-57 (1991), controls because there was a “general verdict under a single count charging the commission of an offense by two or more means and the claim is merely that the evidence was insufficient as to one.” GB 41 n. 29. Johnson’s contention, however, is broader than that. Where a “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). The giving of the aiding and abetting instruction in this case was a legal error tantamount to a Pinkerton instruction; moreover, the evidence preponderated against the verdict on both theories of guilt. Accordingly, even if this Court determines that the motion for judgment of acquittal was properly denied, a new trial should be granted in the interest of justice. Footnote


            For the reasons stated above and in appellants’ opening brief, appellants’ convictions should be vacated for lack of subject matter jurisdiction. If the Court determines that subject matter jurisdiction exists, appellant Darryl Johnson’s conviction should be reversed for insufficient evidence, or in the alternative the conviction should be vacated and the case remanded for a new trial, and the cases of appellants xxxxxxx and Depp should be remanded for resentencing.

                                                                        Respectfully submitted,


                                                                        A.J. KRAMER

                                                                        FEDERAL PUBLIC DEFENDER





                                                                        Assistant Federal Public Defender

                                                                        625 Indiana Avenue, N.W. #550

                                                                        Washington, D.C. 20004

                                                                        (202) 208-7500

                                                                        Counsel for Darryl Johnson





                                                                        EDWARD SUSSMAN 

                                                                        601 Pennsylvania Avenue, N.W. 

                                                                        Suite 900                                                                    Washington, D.C. 20004

                                                                        (202) 737-7110

                                                                        Counsel for xxxxxxx xxxxxxx 




                                                                        H. HEATHER SHANER

1702 S Street, N.W.

                                                                        Washington, D.C. 20009

(202) 265-8210

Counsel for Leon Depp



            I hereby certify, in accordance with Fed. R. App. P. 32(a)(7), that this brief contains 6,989 words.





            I hereby certify that two copies of the foregoing Reply Brief of Appellants were served on the 18th day of February, 2000, upon Jean W. Sexton, Esq., Assistant United States Attorney, 555 Fourth Street, N.W.,Washington, D.C. 20001, by hand delivery to a drop box in the United States Courthouse provided for service of pleadings upon the United States Attorney’s Office.




                                                            Gregory L. Poe

                                                            Assistant Federal Public Defender

last updated: Jun 25 , 2002 (Tue) at 8:52am

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