United States v. Schaffer, Archibald

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 12, 1999 Decided July 23, 1999

No. 98-3123

United States of America,

Appellant/Cross-Appellee

v.

Archibald R. Schaffer, III,

Appellee/Cross-Appellant

Consolidated with

No. 98-3126

Appeals from the United States District Court

for the District of Columbia

(No. 96cr00314-02)

---------

Robert W. Ray, Deputy Independent Counsel, argued the

cause for appellant/cross-appellee. With him on the briefs

were Donald C. Smaltz, Independent Counsel, Charles M.

Kagay, Chief Appellate Counsel, Wil Frentzen, Adrienne R.

Baron and Joseph P. Guichet, Associate Independent Coun-

sel.

William H. Jeffress, Jr., argued the cause for appel-

lee/cross-appellant. With him on the briefs were Joe R.

Caldwell, Jr., James R. Heavner, Jr., Grant R. Vinik and

Woody Bassett.

Before: Wald, Silberman and Henderson, Circuit Judges.

Opinion for the Court filed by Circuit Judge Wald.

Opinion dissenting from Part II(A)(2) filed by Circuit

Judge Henderson.

Wald, Circuit Judge: The United States appeals a decision

by the district court granting Archibald Schaffer's post-trial

motion for a judgment of acquittal. After a jury found

Schaffer guilty of violating the Meat Inspection Act, 21 U.S.C.

s 622, and the federal gratuity statute, 18 U.S.C.

s 201(c)(1)(A), the court set aside the verdict on the grounds

that the jury had been presented insufficient evidence to

support a verdict of guilt on either count. See United States

v. Williams, 29 F. Supp. 2d 1 (D.D.C. 1998). Subsequently,

the court conditionally denied Schaffer's motion for a new

trial, a decision from which Schaffer has filed a conditional

cross-appeal. While we agree with the district court's deter-

mination that the evidence cannot support a conviction for

giving an unlawful gratuity, we find sufficient evidence in the

record from which a reasonable juror could have concluded

that Schaffer violated the Meat Inspection Act. Therefore,

we affirm the district court's decision in part and reverse in

part. We additionally reject the challenges raised in Schaf-

fer's conditional cross-appeal. Accordingly, we vacate the

judgment of acquittal on the Meat Inspection Act count,

reinstate the jury verdict on that count, and remand for

sentencing.

I. Background

The evidentiary disputes in these appeals must be evaluat-

ed in their surrounding context, a much-publicized backdrop

that contains more than a hint of Washington theater. Be-

cause consideration of whether the jury verdict has sufficient

evidentiary underpinnings is necessarily fact-intensive, we set

out the relevant incidents in some detail. The criminal

charges brought against Archibald Schaffer ("Schaffer" or the

"defendant") trace back to 1994, when allegations of illegality

were first levied against then-Secretary of Agriculture Al-

phonso Michael Espy ("Secretary Espy," "Espy," or the

"Secretary"). On application of the Attorney General, a

special division of this circuit appointed Donald C. Smaltz as

independent counsel and granted him the authority to investi-

gate whether Secretary Espy had violated federal criminal

law by accepting gifts from individuals or corporations with

business before, or regulated by, the United States Depart-

ment of Agriculture ("USDA"). See In re Espy, 145 F.3d

1365 (D.C. Cir. Spec. Div. 1998). Along with some other

regulated entities, Tyson Foods International ("Tyson

Foods"), the world's largest producer of poultry products,

ultimately came under official scrutiny for its generosity

towards Secretary Espy. Schaffer, then the Director of

Media, Public and Governmental Affairs for Tyson Foods,

became a target in this investigation for his alleged role in

transmitting things of value from his employer to the Secre-

tary.

The independent counsel's inquiry into the relationship

between Tyson Foods and Secretary Espy focused upon a

chain of events that date back to the transition period preced-

ing William Jefferson Clinton's inauguration as President. In

December of 1992, at a meeting requested by then-

Congressman Espy with Don Tyson and John Tyson, respec-

tively the Chairman of the Board and the President of the

Beef and Pork Division at Tyson Foods, the Congressman

communicated his desire and his qualifications to become the

Secretary of Agriculture. He was subsequently nominated to

that position on December 24, 1992, and sworn in on January

22, 1993, taking office in the midst of a major public health

crisis. An outbreak of E coli 0157:H7 ("E coli") in the Pacific

Northwest, apparently stemming from undercooked ham-

burger meat, had caused the death of three children and

generated illness in six hundred other individuals. Since the

Department of Agriculture has ultimate statutory responsibil-

ity for the integrity of the nation's food supply, including

authority to regulate both the poultry and the meat industry,

the E coli outbreak was a matter of major importance within

the Department.

In response to the public concern, Secretary Espy and the

USDA announced a series of initiatives and new regulations

designed to enhance food safety. These policies were direct-

ed at preventing contamination and instructing the public as

to the proper handling procedures for meat and poultry.

Along with other affected companies, Schaffer participated in

lobbying the Secretary on behalf of Tyson Foods, and in

disseminating the company's views with respect to pending

and ongoing regulatory matters. During this same period of

time, Schaffer, on behalf of Tyson Foods, participated in

providing items of value to Secretary Espy. According to the

indictment, Schaffer provided these gratuities in an attempt

to influence the Secretary's actions with respect to matters of

interest to Tyson Foods then pending before the USDA.

The indictment alleges a pattern of gift-giving which pre-

dates Espy's official elevation to the position of Agriculture

Secretary and continues through January of 1994. Through

Schaffer and others, Tyson Foods provided the following

things of value to Secretary Espy and those closely affiliated

with him: (1) In early January of 1993, Tyson Foods hosted

Espy, his girlfriend Patricia Dempsey ("Dempsey"), and two

of Espy's siblings at the $1,500 per person inaugural dinner

at the Washington Sheraton Hotel, providing each a seat at

one of the three Tyson Foods' tables purchased for the

evening. (2) In April of 1993, Don Tyson invited Secretary

Espy and Dempsey to a weekend-long birthday party at the

Tyson Foods Management Training Complex ("Tyson Com-

plex") in Russellville, Arkansas (the "Russellville party").

When Espy accepted the invitation, Schaffer arranged for

their transportation on a Tyson Foods corporate jet.1 Secre-

__________

1 While Dempsey flew from Washington to Russellville on the

Tyson Foods jet, Secretary Espy came separately from Mississippi,

where he had delivered two commencement addresses. Both Sec-

tary Espy attended the party with Dempsey, at which they

were entertained by B.B. King and other musicians, and then

spent the night at the Tyson Complex. (3) In September of

1993, John Tyson advised Dempsey of, and recommended

that she apply for scholarship money available from the

Tyson Foundation. Dempsey ultimately received a $1,200

Foundation scholarship. (4) On January 16, 1994, Secretary

Espy and Dempsey attended the Dallas Cowboys-Green Bay

Packers playoff game as guests of Don Tyson. Tyson Foods

purchased Dempsey's plane ticket, arranged car and limou-

sine transportation for Espy and Dempsey, and provided

seats in the Tyson Foods skybox.2

During the gift-giving period, USDA officials were at vari-

ous stages in the process of developing and implementing

initiatives that would seriously impact the business of Tyson

Foods. On February 3, 1993, while accompanying the Secre-

tary on a fact-finding mission to the area affected by the E

coli outbreak, Dr. Russell Cross ("Dr. Cross"), the Adminis-

trator of USDA's Food Safety and Inspection Service

("FSIS"), outlined to an enthusiastic Secretary Espy a series

of policies designed to enhance the safety of meat and poultry

products on which FSIS had been working. The Secretary

announced his intention to move forward along the lines of

Dr. Cross's policy proposals at a meeting with industry

representatives the following day. On February 5, 1993, Dr.

Cross made a similar presentation before a Senate subcom-

mittee, announcing a series of initiatives intended to prevent

further outbreaks of food poisoning. Dr. Cross outlined a

"Two-Track" approach to eliminating the presence of patho-

gens in meat and poultry products. Track 1, aimed at

maximizing the performance of then-existing inspection meth-

ods, involved the implementation of six initiatives. Included

__________

retary Espy and Dempsey returned to Washington on the company

jet.

2 Although Schaffer did not participate in providing the last two

things of value, the jury heard this evidence of Tyson Foods' total

largess as part of the case against Jack Williams, a lobbyist for

Tyson Foods and Schaffer's co-defendant.

among the six, FSIS proposed to enhance its detection and

control measures, to develop quantitative risk analysis, to

encourage the use of technologies that reduce pathogens, and

to increase consumer awareness of safe food practices

through disseminating information on how best to handle

meat and poultry products. Track 2, which at that stage was

more amorphous than Track 1, called for a revolutionary

redesign of safety programs.

Throughout 1993, the USDA continued work on two of the

Track 1 policies of great interest to Tyson Foods. First,

FSIS refined and implemented a plan for pathogen reduction,

an effort which eventually acquired the name "zero toler-

ance."3 Although its attention initially focused upon meat,

the improper handling of which had generated the E coli

outbreak, FSIS was also in the process of formulating a "zero

tolerance" pathogen control program for poultry. Second,

FSIS worked on developing a consumer education program

that would apply to all meat and poultry products. This

effort culminated in an emergency regulation mandating the

use of so-called "safe handling labels" on all not-ready-to-eat

products. Intended to heighten consumer awareness, these

labels would contain care and handling instructions designed

to eliminate the risk posed by food-borne pathogens. An-

nounced by Secretary Espy on August 11, 1993, and officially

promulgated five days later, this emergency interim rule

required that USDA-approved labels be in place within sixty

days. After an intense industry lobbying campaign coupled

with White House intervention, Secretary Espy ultimately

agreed to delay implementation of the emergency regulation,

pushing the date for full compliance back to April 15, 1994.

In response to the independent counsel's investigation into

this concatenation of events, a federal grand jury in the

__________

3 The policy apparently acquired this nickname from a March 2,

1993 memorandum that the Deputy Administrator of FSIS sent to

cattle slaughter establishments, requiring them to trim off any beef

contaminated with fecal matter. With respect to such contamina-

tion, the directive concluded, "our policy will be zero." See 6/17/98

Transcript ("Tr.") at 433-34.

District of Columbia indicted Schaffer on seven separate

counts of a fifteen count indictment on January 15, 1998.

Together with co-defendant Jack Williams, a lobbyist for

Tyson Foods, the indictment charged Schaffer with conspir-

acy to defraud the United States of the honest services of

Secretary Espy, in violation of 18 U.S.C. s 371;

Schaffer was also charged with two counts

of wire fraud, in violation of 18 U.S.C. ss 1343, 1346; two

counts of providing unlawful gratuities, in violation of 18

U.S.C. s 201(c)(1)(A); and one count of violating the Meat

Inspection Act, 21 U.S.C. s 622 (the "Act"). The indictment

additionally alleged that Schaffer had committed mail fraud,

in violation of 18 U.S.C. ss 1341, 1346.4 The district court

dismissed four of the seven counts at the close of the prosecution's

case-in-chief. Following completion of an eight-day trial, the

three remaining counts against Schaffer--one under the Meat

Inspection Act and two for providing unlawful gratuities--

were submitted to the jury. Schaffer was found guilty on two

of these counts, first for violating the Meat Inspection Act5 in

__________

4 Jack Williams was also charged with two counts of making false

statements to federal agents in violation of 18 U.S.C. s 1001, and

found guilty on each. Because Williams has withdrawn his appeal

from the district court's decision denying his acquittal and new trial

motions, our discussion focuses on Schaffer alone. We mention

Williams solely to provide a complete and accurate portrait of the

proceedings before the district court.

5 21 U.S.C. s 622 provides:

Any person, firm, or corporation, or any agent or employee

of any person, firm, or corporation, who shall give, pay or offer,

directly or indirectly, to any ... officer or employee of the

United States authorized to perform any of the duties pre-

scribed by this subchapter or by the rules and regulations of

the Secretary any money or other thing of value, with intent to

influence said ... officer or employee of the United States in

the discharge of any duty provided for in this subchapter, shall

be deemed guilty of a felony, and, upon conviction thereof, shall

be punished by a fine not less than $5,000 nor more than

$10,000 and by imprisonment not less than one year nor more

than three years.

conjunction with Secretary Espy's attendance at the Russell-

ville party, and second for violating the federal gratuity

statute6 through providing tickets to the inaugural dinner.

Upon the defendant's subsequent Rule 29 motion for a

judgment of acquittal, the district court set aside the jury's

verdict on both counts. Acknowledging that the jury had

heard sufficient evidence to support an inference that Schaf-

fer had either given, or aided and abetted the giving of things

of value to Secretary Espy, an essential element under each

of the criminal statutes, the court nevertheless concluded that

no rational trier of fact could have concluded that Schaffer

had acted with the requisite intent to influence on either

occasion. See United States v. Williams, 29 F. Supp. 2d at

6.7 Using this court's decision in United States v. Sun-

__________

6 18 U.S.C. s 201(c)(1)(A) provides that anyone who

otherwise than is provided by law for the proper discharge of

official duty ... directly or indirectly gives, offers, or promises

anything of value to any public official, former public official, or

person selected to be a public official, for or because of any

official act performed or to be performed by such public official,

former public official, or person selected to be a public official

... shall be fined under this title or imprisoned for not more

than two years, or both.

The statute further defines an "official act" to include "any decision

or action on any question, matter, cause, suit, proceeding or contro-

versy, which may at any time be pending, or which may by law be

brought before any public official, in such official's official capaci-

ty...." 18 U.S.C. s 201(a)(3).

7 The court conditionally disposed of Schaffer's new trial motion

in a separate and subsequent order. See United States v.

Williams, No. 96-0314 (D. D.C. Oct. 6, 1998) (order denying new

trial motion). Schaffer had argued that the court erred in preclud-

ing him from eliciting the fact of John and Don Tyson's immunity

agreements during the cross-examination of John Tyson, and that

the prosecution had made improper and prejudicial comments in

each of its opening, closing, and rebuttal statements. The court

referenced an earlier trial ruling and its Williams opinion as the

respective grounds for rejecting each of these contentions. See

discussion infra pp. 30-35.

Diamond Growers of California, 138 F.3d 961 (D.C. Cir.

1998) ("Sun-Diamond I"), aff'd, 119 S. Ct. 1402 (1999) ("Sun-

Diamond"), as its point of departure, the court read both the

federal gratuity statute and the Meat Inspection Act as

requiring a link between the gifts and an intent to influence

specific official acts of the recipient. Since the trial and the

jury instructions had each revolved around two official USDA

policies--i.e. zero tolerance and safe handling labels--the

court examined the nexus between those policies and the gifts

given to Espy to determine if it was strong enough to sustain

a finding of intent to influence an official act (under the

gratuity statute) or the discharge of any duty (under the

Meat Inspection Act). Beginning with the gratuities count,

the court asserted that "[t]here was no evidence that Mr.

Schaffer or anybody in Tyson Foods knew or anticipated

anything about zero tolerance or mandatory safe handling

labels at the time of the inaugural dinner," Williams, 29

F. Supp. 2d at 7, because E coli had first been identified as

the cause of the deadly food poisoning outbreak only earlier

that day. As for the Meat Inspection Act count, the court

similarly concluded that neither of the two policies could

provide the requisite nexus with the Russellville party; each

was disqualified for temporal reasons. In the court's view,

zero tolerance had ceased to be a live issue for meat more

than two months before the weekend gala, and Tyson Foods

had yet to voice any objection to the regulation mandating

safe handling labels. See id. at 7-8. Accordingly, the court

granted Schaffer's Rule 29 motion and entered a judgment of

acquittal on each count. Seeking reinstatement of the jury

verdict, the independent counsel appeals from this decision on

behalf of the United States.

II. Discussion

In reviewing a post-verdict judgment of acquittal, this court

undertakes an examination identical to that made by the trial

judge in passing upon the defendant's motion. We examine

the evidence in the light most favorable to the government,

and draw all reasonable inferences in its favor. See United

States v. Singleton, 702 F.2d 1159, 1163 (D.C. Cir. 1983).

While we recognize the district court's unique vantage point

in evaluating the evidence, our review is nevertheless de novo.

See United States v. Campbell, 702 F.2d 1182, 1183 (D.C. Cir.

1983) (in banc). Finally, in order to safeguard the fact-

finding function assigned to the jury, we make a searching

review of the record to determine whether the prosecution

presented evidence from which a rational juror could have

found guilt beyond a reasonable doubt. Unless we conclude

that no reasonable jury could have found guilt beyond a

reasonable doubt on the evidence presented, we defer to its

determinations.

A. The Government's Appeal

1. The Gratuity Statute and the Inaugural Dinner

Our assessment of a guilty verdict's evidentiary underpin-

nings necessarily begins with the language of the statute

purportedly contravened, and the essential elements of the

crime proscribed therein. The federal gratuity statute makes

it unlawful for anyone, directly or indirectly, to

give[ ], offer[ ], or promise[ ] anything of value to any

public official, former public official, or person selected to

be a public official, for or because of any official act

performed or to be performed by such public official,

former public official, or person selected to be a public

official....

18 U.S.C. s 201(c)(1)(A) (emphasis added). As the trial court

correctly instructed, a violation of this statute requires the

presence of three separate elements: that the defendant (i)

knowingly gave a thing of value; (ii) to a public official or

person selected to be a public official; (iii) for or because of

any official act performed or to be performed. Since the trial

court based its decision vacating the gratuities conviction

upon the third element, properly conceding that the jury had

been presented with sufficient evidence of the first two ele-

ments, see Williams, 29 F. Supp. 2d at 6, we focus our

attention there as well.

Before analyzing the evidence, however, it is necessary to

discuss a key question of statutory interpretation that lies at

the heart of this case. As both parties readily admit, the

statutory language at issue, that a thing of value be given "for

or because of an official act," requires some nexus between

the thing given and an "official act," which the statute defines

as "any decision or action on any question, matter, cause, suit,

proceeding or controversy, which may at any time be pend-

ing, or which may by law be brought before any public

official, in such official's official capacity...." 18 U.S.C.

s 201(a)(3). Though this case was tried before the Supreme

Court handed down its recent Sun-Diamond decision, the

proceedings were fully in accord with the Court's subsequent

holding that "the giving of gifts by reason of the recipient's

mere tenure in office" does not constitute a violation of the

gratuity statute. 119 S. Ct. at 1408. In the words of the

district court's jury instructions, "[i]t is not a crime to give

things of value to a public official merely to get cozy or in the

hopes of inducing warm feelings toward the giver or the

giver's employer." 6/25/98 Tr. at 1779. But while all in-

volved agree that the gratuity statute's scienter requirement

demands more than a gift motivated solely by the recipient's

official status, and that the statutory terms are "pregnant

with the requirement that some particular official act be

identified and proved," Sun-Diamond, 119 S. Ct. at 1407, the

magnitude of the necessary link, and its proper translation

into a concrete rule of decision, remains in some doubt.

Although the Supreme Court provided a preliminary expo-

sition of the federal gratuity statute in Sun-Diamond, the

Court faced a narrow question and provided an equally

circumscribed answer. Arising out of the same investigation

of Secretary Espy as the present case, the independent

counsel had there charged an agricultural trade organization

with providing unlawful gratuities to the Secretary. Al-

though the indictment discussed two separate policy matters

pending before the Secretary during the gift-giving period, it

did not allege any direct connection between the gifts and

those (or any other) particular matters of concern to Sun-

Diamond. The defendant appealed his ultimate conviction on

the grounds that the district court had improperly charged

the jury, as the court's instructions only required the jury to

find that Espy's official position motivated the gift. The

Supreme Court rejected this reading of the gratuity statute

as contrary to the language of its text, see id., its place within

the larger statutory and regulatory framework governing the

integrity of public officials, and congressional intent. See id.

at 1408-09. In the Court's view, the operative "for or be-

cause of" language naturally means "for or because of some

particular official act of whatever identity," id. at 1407 (em-

phasis added), and requires the government to "prove a link

between a thing of value conferred upon a public official and a

specific 'official act' for or because of which it was given." Id.

at 1411. Since Sun-Diamond might have been convicted for

gifts that lacked any nexus with a particular official act but

were instead motivated by the Secretary's mere status, the

Court felt no need to explore the degree of proof necessary to

show the link or how the government might go about estab-

lishing its presence.

Given the lack of specific guidance from the Court on the

amount and kind of evidence necessary to establish a nexus

with an official act,8 we look to the statute itself. The

pertinent language resides within a larger provision, 18

U.S.C. s 201, that proscribes the giving and the receipt of

both bribes9 and illegal gratuities. As we recognized in

__________

8 The specific interpretive methods used by the Sun-Diamond

Court to arrive at its conclusion similarly do not help us in this

second-level inquiry. Neither elementary linguistic analysis, the

structure of the gratuity statute or its place within the larger

statutory and administrative fabric regulating gifts to officeholders,

nor the desire to avoid trapping the unwary point towards any

specific interpretation of the degree of proof necessary to satisfy

the Court's "for or because of a particular official act" language.

9 18 U.S.C. s 201(b)(1) provides in relevant part that whoever

directly or indirectly, corruptly gives, offers or promises any-

thing of value to any public official or person who has been

selected to be a public official, or offers or promises any public

official ... to give anything of value to any other person or

entity, with intent ... to influence any official act ...

United States v. Campbell, 684 F.2d 141, 149 (D.C. Cir. 1982),

"[i]t is no easy task to articulate the requisite intent neces-

sary to constitute accepting or giving an illegal gratuity."

Because, however, the bribery section has received judicial

elaboration and the gratuity provision has not, the former

provides an illuminating backdrop against which to begin our

interpretive task. The two prohibitions differ in two funda-

mental respects. First, bribery requires a quid pro quo, and

accordingly can be seen as having a two-way nexus. That is,

bribery typically involves an intent to affect the future actions

of a public official through giving something of value, and

receipt of that thing of value then motivates the official act.

See Sun-Diamond I, 138 F.3d at 966. A gratuity, by con-

trast, requires only a one-way nexus; "the gratuity guideline

presumes a situation in which the offender gives the gift

without attaching any strings...." United States v. Mari-

ano, 983 F.2d 1150, 1159 (1st Cir. 1993). See also United

States v. Brewster, 506 F.2d 62, 72 (D.C. Cir. 1974) ("the

briber is the mover or producer of the official act, but the

official act for which the gratuity is given might have been

done without the gratuity, although the gratuity was pro-

duced because of the official act").

The two provisions additionally differ in their temporal

focus. Bribery is entirely future-oriented, while gratuities

can be either forward or backward looking. See Campbell,

684 F.2d at 148. In other words, whereas bribery involves

the present giving, promise, or demand of something in

return for some action in the future, an unlawful gratuity can

take one of three forms. First, a gratuity can take the form

of a reward for past action--i.e. for a performed official act.

__________

has committed bribery; while 18 U.S.C. s 201(b)(2) provides in

relevant part that whoever

being a public official or person selected to be a public official,

directly or indirectly, corruptly demands, seeks, receives, ac-

cepts, or agrees to receive or accept anything of value personal-

ly or for any other person or entity, in return for ... being

influenced in the performance of any official act ...

has committed bribery.

See, e.g., id. at 148-50 (illegal gratuity where construction

company moved the household goods of a judge who had

suspended hundreds of its traffic tickets). Second, a gratuity

can be intended to entice a public official who has already

staked out a position favorable to the giver to maintain that

position. See Sun-Diamond, 119 S. Ct. at 1408 (postulating

scenario of gift to Department of Justice antitrust appointee

who had publicly indicated support of the giving company's

pending merger because of anticipated continued future sup-

port). Finally, a gratuity can be given with the intent to

induce a public official to propose, take, or shy away from

some future official act. See, e.g., United States v. Sawyer, 85

F.3d 713 (1st Cir. 1996) (gifts to legislators who had ability to

affect company's ongoing legislative concerns constitute un-

lawful gratuities under analogously worded Massachusetts

statute). This third category would additionally encompass

gifts given in the hope that, when the particular official

actions move to the forefront, the public official will listen

hard to, and hopefully be swayed by, the giver's proposals,

suggestions, and/or concerns.

The tickets to the inaugural dinner, which form the basis of

Schaffer's gratuity conviction, fall into the third variety. Two

latent official actions of interest to Tyson Foods--i.e., zero

tolerance and safe handling labels--having clearly been es-

tablished, the sufficiency of the evidence question concerning

their nexus with the gratuity is two-fold. First, we assess

whether a rational trier of fact could conclude that Schaffer

either provided or knowingly aided and abetted Tyson Foods

in the provision of the inaugural tickets to Secretary Espy.10

__________

10 Since the district court instructed the jurors that they could

find Schaffer guilty for aiding and abetting either of the counts

charged, we use the phrase "knowingly aided and abetted the

provision of" as a shorthand for the full set of instructions that

follow.

[ ] You may find the defendants or either of them guilty of

the Meat Inspection Act and gratuities counts charged without

finding that they personally committed each of the acts that

made up the crime or that they were present while the crime

was being committed.

If the evidence supports such a finding, we then ask whether

a rational jury could additionally have determined that the

thing of value was provided with the requisite statutory intent

to influence Secretary Espy in his actions with regard to

those policies. Beginning with the first question, we think it

abundantly clear that the evidence presented satisfies the

burden of sufficiency. The government introduced a series of

internal Tyson Foods documents relating to the inaugural

dinner, including: (i) two separate check requisitions to cover

the cost of Tyson Foods' tables, each filled out and signed by

Schaffer, see 6/17/98 Tr. at 392-93; (ii) a memo from Schaffer

to the Tyson inaugural team listing table assignments for the

dinner, including those of Espy, his girlfriend, and his two

siblings, see GX87; and (iii) a letter from the presidential

inaugural regarding procedures for the event, including the

need for tickets, next to which Schaffer had written that he

would pick up and distribute them. See GX36; 6/24/Tr. at

1595-95. In addition, the government elicited testimony that

Schaffer had been involved in coordinating Tyson Foods'

participation at various inaugural events. See 6/19/98 Tr. at

913. While the defense sought to minimize Schaffer's role,

the government's testimony, taken as a whole, supports a

__________

Any person who in some way intentionally participates in the

commission of a crime aids and abets the principle offend-

er....

To find that a defendant aided and abetted in committing a

crime, you must find that the defendant knowingly associated

himself with the persons who committed the crime, that he

participated in the crime as something he wished to bring

about, and that he intended by his actions to make the crime

succeed.

Now, some affirmative conduct by the defendant to help in

planning or carrying out the crime is necessary.... It is

sufficient if you find beyond a reasonable doubt that the crime

was committed by someone and that the defendant in question

knowingly and intentionally aided and abetted the principal

offenders in committing the crime.

6/25/98 Tr. at 1780-81.

conclusion that Schaffer participated in providing the four

inaugural tickets to Secretary Espy.

The core dispute on the evidentiary sufficiency of the

nexus, however, cannot be disposed of as easily. Because of

its subjective focus on the motivation behind Tyson Foods'

largess, it necessitates a more extensive discussion. In as-

sessing the sufficiency of the evidence presented as to wheth-

er Schaffer acted with the requisite intent to influence a

particular official act, we begin with the recognition that any

attempt to reduce the gratuity statute's nebulous "for or

because of" language into a more concrete formulation will

necessarily be imperfect. When faced with competing expla-

nations for some specific conduct, conduct which could be

either innocuous or illicit depending upon the particular moti-

vation involved, the inquiry will rarely be clean or neat. Both

common sense and practical experience, each of which we

ascribe to the jury, instruct that human beings rarely act for

a single purpose alone. Rather, activity is more typically

multi-causal, and directed towards achieving several rather

than a single end[s]. Accordingly, we do not view the ques-

tion of intent in the Manichean terms of the prosecution and

the defense, focusing instead upon the more realistic and

probative question of whether the acts in question were

substantially, or in large part motivated by the requisite

intent to influence the Secretary. As a final caveat, we note

that as with most cases in which the defendant's state of mind

is at issue, it may be near impossible to establish the requisite

mens rea through direct evidence. In the absence of any

specific statement or other contemporaneous documentation

of the defendant's subjective motivation, the trier of fact can

do no more than ascribe an intent on the basis of the

circumstances surrounding the defendant's actions. See, e.g.,

United States v. Woodward, 149 F.3d 46, 57 (1st Cir. 1998) (in

assessing whether defendant sought to influence official acts,

"[t]he jury was entitled to infer the defendant's intent from

the circumstances surrounding his actions, from indirect, as

opposed to direct, evidence") (citation omitted); Chedick v.

Nash, 151 F.3d 1077, 1083 (D.C. Cir. 1998) (despite absence of

smoking gun, jury entitled to infer intent to defraud from

circumstantial evidence); United States v. Castellanos, 731

F.2d 979, 984 (D.C. Cir. 1984) ("no legal distinction is made

between circumstantial and direct evidence in determining

whether sufficient evidence supports the verdict").

After an extensive examination of the circumstances sur-

rounding the provision of the inaugural tickets, we cannot say

that the trier of fact could reasonably have found the requi-

site intent to influence beyond a reasonable doubt. The

evidence presented was far too meager to support such a

conclusion. In support of its argument to the contrary, the

independent counsel points to the following trial testimony:

(i) as a regulated entity, Tyson Foods routinely had matters

of interest before the USDA; (ii) by 1992, FSIS had begun

developing new safety measures, including zero tolerance and

safe handling labels; (iii) a senior scientist at Tyson Foods,

Dr. Ellis Brunton, knew that the USDA had been developing

new pathogen control policies prior to the E coli outbreak;

(iv) Dr. Brunton generally kept Schaffer abreast of pending

regulatory developments that could impact Tyson Foods; and

(v) the E coli outbreak heightened USDA's interest in both

zero tolerance and safe handling labels, resulting in the

announcement of new policies with respect to each.11 Accord-

__________

11 At oral argument, the independent counsel additionally refer-

enced the Texas Food Industry Assoc. v. USDA opinion, 842

F. Supp. 254, 256 (W.D. Tex. 1993), wherein the district court had

enjoined enforcement of the safe handling labels emergency interim

regulation for failing to satisfy the good cause exception to the

Administrative Procedure Act's notice and comment requirement.

See 5 U.S.C. s 553(b). This decision had been introduced into

evidence during Jack Williams's defense, and his counsel had read a

portion of it to the jury. See 6/24/98 Tr. at 1573-74. In a separate

part of that opinion, the court quotes from the "Background" and

"New Policy Direction" sections of the USDA's interim rule publish-

ed in the Federal Register. See 58 Fed. Reg. 43,478 (August 16,

1993). There, the USDA noted that "[a]gency official [sic] in early

January began to advocate in their speeches and writings that

mandatory safe handling instructions on the labeling of meat and

poultry products was a necessary component of a program to

combat foodborne illness." Id. at 43,481, quoted in Texas Food

ingly, although the record does not entirely support the

district court's conclusion that "[t]here was no evidence that

Mr. Schaffer or anybody in Tyson Foods knew or anticipated

anything about zero tolerance or safe handling labels at the

time of the inaugural dinner," Williams, 29 F. Supp. 2d at 7,

it still cannot support the guilty verdict. Acknowledging the

evidence highlighted by the independent counsel, we also note

the following undisputed testimony. First, Tyson Foods had

purchased its three tables to the dinner before December 24,

1992, the date on which President Clinton announced Espy's

appointment to the position of Agriculture Secretary. Sec-

ond, Espy's name, as well as those of his girlfriend and

siblings, appears on a January 15, 1993 memorandum drafted

by Schaffer that lists the final table assignments for the

inaugural dinner. See GX87. Since the E coli outbreak

occurred sometime in the middle of January, and the USDA

did not become apprised of its actual cause--contaminated

hamburger meat--until January 18th, the day of the inaugu-

ral dinner, USDA's subsequent heightened interest in zero

tolerance and safe handling labels could not have motivated

the invitation extended to Espy, which necessarily predated

January 15th. It was not until February 4th that Secretary

Espy briefed industry representatives on his proposed initia-

tives.

__________

Industry, 842 F. Supp. at 258. From this passage, completely

unrelated to the language for which the opinion had been intro-

duced on Williams's behalf, the independent counsel alleges that the

jury could infer that Schaffer and Tyson Foods were aware of the

USDA's intent to act on this issue at the time of the inaugural

dinner. While we are skeptical of the independent counsel's asser-

tion that the jury considered this non-highlighted language in

assessing the case against Schaffer, even assuming that it did, the

language does not support the proposition for which the indepen-

dent counsel cites it. Simply put, the vague temporal reference to

"agency official[s]" advocating mandatory safe handling instructions

in "early January" is not sufficient to establish that the USDA had

in fact officially initiated a program of promoting safe handling

labels, let alone that Tyson Foods had been privy to the relevant

writings or speeches, before the time when Tyson Foods offered the

inaugural tickets to Secretary Espy.

Once the E coli outbreak is out of the picture, all that

remains is an awareness by a regulated entity that the USDA

had been developing a new pathogen control policy.12 In our

opinion, the inferential leap across the chasm separating this

premise from the requisite conclusion--that the tickets were

intended, beyond a reasonable doubt, to induce Espy to

propose, take, or shy away from some action on zero toler-

ance, or alternatively to ensure that Tyson Foods' proposals,

suggestions and/or concerns were accorded special scrutiny--

cannot be considered reasonable. The breadth of the Su-

preme Court's Sun-Diamond opinion with respect to identi-

fying a particular official act must of necessity spill over

here, creating the need for a more definitive link than the

prosecution provided. To hold otherwise would mean that

any time a regulated entity became aware of any inchoate

government proposal that could affect its interests, and sub-

sequently provided something of value to a relevant official, it

could be held to violate the gratuity statute in the event that

the inchoate proposal later appeared in a more concretized

form. Were the inferential leap from this scenario to an

intent to influence considered reasonable, we would in effect

revive the status-based reading of the gratuity statute the

Court so roundly rejected in Sun-Diamond. We balk at any

such end run.

2. The Meat Inspection Act and the Russellville Birthday

Party

Schaffer was additionally found guilty of violating the anti-

corruption provision of the Meat Inspection Act in connection

with his role in securing the attendance of Secretary Espy

and his girlfriend at Don Tyson's May 1993 Russellville party.

Once again, our assessment of the verdict's evidentiary suffi-

ciency begins with the statutory language.

In relevant part, 21 U.S.C. s 622 provides that:

__________

12 The jury was not presented any evidence that Schaffer, as

opposed to Tyson Foods, was actually aware of the anti-

contamination or safe handling initiatives prior to the February 4th

meeting with Secretary Espy.

Any person, firm, or corporation, or any agent or em-

ployee of any person, firm, or corporation, who shall give,

pay, or offer, directly or indirectly, to any ... officer or

employee of the United States authorized to perform any

of the duties prescribed by this subchapter ... any

money or other thing of value, with intent to influence

said ... officer or employee of the United States in the

discharge of any duty provided for in this subchapter,

shall be deemed guilty of a felony....

(Emphases added). Similar to the gratuities prohibition, a

violation of this statute requires the presence of three sepa-

rate elements: the defendant must have (i) directly or indi-

rectly given (or aided and abetted the giving of); (ii) a thing

of value to a covered official; (iii) with the intent to influence

the discharge of any official duty under the Meat Inspection

Act.13 The Act clearly applies to Tyson Foods, as its Beef

and Pork Division accounted for eight to ten percent of its

overall business. See 6/19/98 Tr. at 910. As with the unlaw-

ful gratuities count, the core of the dispute centers around

whether the prosecution presented sufficient evidence for a

reasonable jury to conclude that Schaffer acted with the

requisite intent to influence any of the Secretary's duties

under the Meat Inspection Act.

Again, we first address a preliminary issue of statutory

construction. With respect to the requisite intent, the lan-

guage of the Meat Inspection Act differs in material ways

from that of the federal gratuity statute. Whereas the Meat

Inspection Act expressly requires an "intent to influence the

discharge of any duty under the Act," an unlawful gratuity

requires that the thing of value be given "for or because of

any official act performed or to be performed." While this

linguistic distinction might appear minor when viewed in

isolation, the place that these two provisions occupy within

their respective statutory schemes magnifies the textual dif-

ference in important respects. See Conroy v. Aniskoff, 507

__________

13 The terms of the Act apply to all cattle, sheep, swine, goats,

horses, mules, and other equines, and to meat products derived

therefrom. See 21 U.S.C. ss 603-624.

U.S. 511, 515 (1993) ("the meaning of statutory language,

plain or not, depends on context").14 In its Sun-Diamond

opinion, the Court emphasized the structure of the gratuity

statute, focusing upon the explicit definition given the statuto-

ry term "official act" and the consequences that logically

followed from that particular wording. The need for an

explicit link with a specific act flowed directly from this

statutory language, as the gratuity provision's "insistence

upon an 'official act,' carefully defined,15 ... [required] that

some particular official act be identified and proved." 119 S.

Ct. at 1407. In the absence of this limiting principle, the

Court recognized, the gratuity statute would unwittingly dis-

place much of the elaborate statutory and administrative

regime otherwise regulating the enrichment of public officials.

See id. at 1410.

By way of comparison, the Meat Inspection Act can be seen

as having both a more limited and a more expansive focus.

On the one hand, the scope of its gratuity provision is

circumscribed by the narrow class of individuals upon which it

operates. By definition, the statute covers only two catego-

ries of persons: officials with duties under the Meat Inspec-

tion Act, and those seeking to influence these officials in the

discharge of their duties. In this sense, the Meat Inspection

Act exemplifies what the Sun-Diamond Court called a "tar-

geted prohibition;" it does not threaten, as did the federal

gratuity statute, to make "misfits" out of other pieces of a

complex regulatory puzzle.16 Id. Within the narrow range of

__________

14 Although the Court's Sun-Diamond decision speaks only to the

federal gratuity statute, the interpretive methods utilized therein,

around which we shape our discussion, are nevertheless instructive.

In contrast to our dissenting colleague, we believe that the Sun-

Diamond decision suggests a holistic approach to interpreting

statutes that regulate gift-giving, and that it counsels an inquiry

that extends beyond merely reading the word "any" to mean "some

particular." See Dissenting Opinion ("Diss. Op.") at 2.

15 See supra n.6.

16 Nothing in the language or structure of the Meat Inspection

Act limits its proscription to the giving of bribes, as opposed to

meat-related activities it covers, however, the Act's gratuity

provision is actually more expansive than the general gratuity

statute, as it seemingly can be triggered without reference to

a particular official act. The Meat Inspection Act lacks a

counterpart to the careful definition that the gratuity statute

gives the term "official act," the very statutory language upon

which the Sun-Diamond Court so heavily relied in requiring

a particularized nexus. In fact, the Act does not place any

restrictive definitional gloss upon what constitutes "the dis-

charge of any duty under the Act," allowing the ordinary

meaning of those terms to govern the interpretation. See

United States v. Espy, 145 F.3d 1369, 1371 (D.C. Cir. 1998) (a

"duty" is "something that one is expected or required to do

by moral or legal obligation") (citation omitted).

As our own Espy opinion indicates, the duties of the

Agriculture Secretary under the Meat Inspection Act are

manifold. See id. As part of the Secretary's general obli-

gations to protect the health and welfare of the consuming

public from unwholesome or adulterated meat, the Act directs

that the Secretary shall "make such rules and regulations as

are necessary for the efficient execution" of its provisions, 21

U.S.C. s 621, and shall cause the inspection, in accordance

with such rules and regulations, of all meat carcasses capable

of use as human food, see 21 U.S.C. s 604, the inspection of

all meat food products prepared for commerce, see 21 U.S.C.

s 606, and inspections of all establishments where meat is

slaughtered, salted, packed, or rendered. See 21 U.S.C.

s 608. The Secretary's duty to make all necessary rules and

regulations lacks the particularized focus of the term "official

act," whether or not the Secretary were to take certain

official acts in fulfilling this duty. These duties extend be-

yond the mere development and promulgation of food safety

regulations, and encompass an ongoing obligation to ensure

__________

gratuities, as our dissenting colleague appears to suggest. See

Diss. Op. at 3. While we have previously held that bribery requires

a defendant to act "corruptly," see United States v. Gatling, 96 F.3d

1511, 1522 (D.C. Cir. 1996), the Act speaks only of acting with an

"intent to influence," the scienter requirement associated with an

unlawful gratuity. See id.

enforcement in conformity therewith. Accordingly, one could

unlawfully attempt to influence the Secretary in the discharge

of his broad-based duties without identifying any particular

policy then at the regulatory fore. The offender might seek

to ensure that his company's interests were addressed by

whatever decisions or policies ultimately moved up the agen-

cy's radar screen, or want simply to affect a pro-enforcement

or deregulatory tilt, and a more favorable attitude toward all

regulatees. We belabor these obvious points because they

illustrate the ways in which the Meat Inspection Act's gratui-

ty prohibition is more expansive, both substantively and

temporally, than the general federal gratuity statute under

the Supreme Court's Sun-Diamond decision. Given the

motivating force behind the Meat Inspection Act--i.e., a

congressional desire to address the outrageous sanitary con-

ditions documented in Upton Sinclair's book The Jungle--the

breadth of its gratuity provision is unsurprising. See Espy,

145 F.3d at 1371.

That said, the fact remains that Schaffer's trial proceeded

on the theory that section 622 of the Meat Inspection Act and

section 201(c)(1)(A) of the federal gratuity statute were co-

extensive. See Williams, 29 F. Supp. 2d at 6. The jury

instructions required the same link between the thing given

and an intent to influence a particular official action, here

either zero tolerance or safe handling labels, as they had for

the gratuities counts. Although we are inclined to believe

that the Meat Inspection Act contains a less rigorous intent

requirement than the federal gratuity statute, we additionally

believe that the prosecution presented evidence linking the

Russellville party with an intent to influence these specific

policies sufficient for a reasonable jury to have found Schaffer

guilty beyond a reasonable doubt under the more stringent

standard of the gratuity statute. Because our conclusion that

the evidence supports a finding of guilt under the gratuity

statute's intent requirement necessarily includes a finding

that a lesser burden would similarly be satisfied, we leave the

precise articulation of the Meat Inspection Act's intent re-

quirement to another day. Accordingly, we will assess the

verdict against the standard of the gratuity statute, the very

standard advocated and employed by our dissenting col-

league. See Diss. Op. at 2-3. As with the inaugural dinner,

we begin by asking whether a rational trier of fact could

conclude that Schaffer either provided or knowingly aided

and abetted Tyson Foods in bestowing the Russellville party

upon Secretary Espy and Ms. Dempsey. Assuming the

evidence supports that finding, we go on to ask whether a

rational jury could additionally have determined that the

thing of value was provided with the requisite intent to

influence Secretary Espy's actions on either zero tolerance or

safe handling labels.

On the basis of the evidence presented, a reasonable jury

could securely find that Schaffer participated in securing

Espy's attendance at the Russellville party. Viewing the trial

testimony through prosecutorial lenses, the chronology of

events proceeded as follows. In April of 1993 Don Tyson

sent Secretary Espy the printed invitation to his weekend

gala, along with a hand-written note that informed Espy of

both a pending invitation to an Arkansas Poultry Federation

("APF") meeting scheduled to overlap with the party and

Tyson's intent to provide transportation to and from Russell-

ville on the company jet. Schaffer received a copy of this

writing. See GX90. Roughly five days later, the APF Presi-

dent circulated a memorandum to members of the APF

Board indicating that Secretary Espy would be in Arkansas

on May 15th, clearly implying that Espy already intended to

attend the Russellville party before being invited to the APF

meeting. That same day, the Senior Vice President of the

APF drafted a letter inviting Secretary Espy to speak at the

May 15th meeting in Russellville. See 6/18/98 Tr. at 486-88;

GX91B; GX100. Rather than sending the letter directly to

Espy, however, he sent it overnight delivery to Schaffer.

Schaffer then arranged for its mailing and faxing to Espy.

See 6/18/98 Tr. at 535-38, 554; GX91A; GX91B; GX92;

GX155; GX156. The APF meeting, at which Secretary Espy

ultimately agreed to speak, provided an official reason for

Espy to be in Russellville the weekend of the Tyson affair.

Given the anomalous course of events, the jury could reason-

ably infer that the meeting, while legitimate, had nevertheless

been set up to provide Espy with official cover.

Schaffer's role in arranging Espy's attendance in Russell-

ville did not end there, as he had a series of communications

regarding the trip with Secretary Espy's USDA travel coordi-

nator. In response to her logistical questions involving the

Secretary's official itinerary, Schaffer stated that the all-day

APF meeting would involve some 150 people (rather than the

15-20 who came), see 6/18/98 Tr. at 491, that he would meet

Secretary Espy at the airport and escort him to the meeting,

that it would be followed by a dinner meeting to which the

Secretary was invited, that the Secretary would be overnight-

ing at the Tyson Complex, and that the Secretary would be

transported back to Washington on an APF charter plane.

Schaffer additionally provided a list of the other passengers

on that flight. See 6/18/98 Tr. at 558-70. With respect to the

transportation arrangements, Schaffer requested use of the

Tyson Foods corporate aircraft that transported Dempsey to

Russellville for the weekend, and that transported her and

Espy back to Washington that Sunday. See 6/17/98 Tr. at

318-20; GX103. Despite these extensive efforts, when subse-

quently questioned by an FBI agent, Schaffer denied know-

ing who had arranged for the Secretary or his girlfriend to

attend the Russellville party or to stay at the Tyson Complex.

In addition, he asserted that APF officials, rather than any-

one at Tyson Foods, had contacted Espy and arranged his

attendance at the APF meeting. See 6/22/98 Tr. at 1209-13.

On the basis of this testimony, a reasonable jury could find

that Schaffer not only helped to arrange Espy's APF speak-

ing engagement, but that he actively participated in securing

the attendance of the Secretary and his girlfriend at the

Russellville party.

Turning now to the more difficult question of intent, we

note that the independent counsel prosecuted the case under

a theory that corresponds to the third variant of our three-

part typology of gratuities offenses.17 See discussion supra

__________

17 Since a violation of the Meat Inspection Act, in contrast to the

general gratuity statute, additionally requires a link between the

pp. 13-14. In other words, the independent counsel sought to

establish that Espy's attendance at the party was secured

with the intent to induce the Secretary to propose, take, or

shy away from some future act with respect to either zero

tolerance or safe handling labels, or alternatively in the hope

that, when those particular issues moved to the regulatory

forefront, the Secretary would listen hard to, and hopefully be

swayed by, the Tyson Foods' proposals, suggestions, and/or

concerns. Again recognizing that proof of an actor's subjec-

tive motivation will likely require recourse to circumstantial

rather than direct evidence, see discussion supra pp. 16-17,

we believe that the independent counsel has presented suffi-

cient evidence to establish the requisite link.

The district court rejected the jury verdict on two separate

grounds, corresponding to the two identified official acts, each

of which we address in turn. First, the court noted that

although the Secretary had announced his intent to move

forward with the labeling initiative at his February 4th meet-

ing with industry representatives, he did not promulgate the

interim regulation until three months after the Russellville

party. See Williams, 29 F. Supp. 2d at 7. Once the proposal

had moved to the regulatory forefront in the aftermath of the

January 1993 E coli outbreak, however, we do not see how

the precise timing of its official publication undercuts an

inference that Tyson Foods hoped to influence its final form

through bestowing largess. The district court's conclusion,

echoed by our dissenting colleague, see Diss. Op. at 4, pre-

sumably picked up on Schaffer's argument that Tyson Foods

did not oppose the labeling proposal prior to its August

promulgation, and even then only objected to its stringent

timing requirements, not to its substance. But again, we do

not regard the timing sequence as negating a reasonable

inference of intent, particularly under the deferential stan-

dard we use in reviewing a jury's verdict of guilt. The

statute requires an intent to influence, not an attempt to

block or to eviscerate some particular official act. In fact, the

__________

favor and a policy that specifically affects meat, the prosecution

sought to make this connection as well.

economics of predatory practices instructs that larger compa-

nies may support and encourage stringent new regulations, as

the marginal cost of complying with a regulation will typically

be higher for small companies. See generally, Ann P. Bartel

& Lacy Glenn Thomas, "Predation through Regulation: The

Wage and Profit Effects of the Occupational Safety and

Health Administration and the Environmental Protection

Agency," 30 J.L. & Econ. 239 (1987). Additional regulation

can thus help to undermine competition, and this fact of

business life severs any necessary link between opposition

and influence. Since the requisite intent under the statute

can appear in many forms, we find it irrelevant under the

statute whether the party providing the gratuity hoped to

induce or to discourage an official act, or even to encourage

the recipient to adhere to the status quo.

With respect to zero tolerance, the district court concluded

that insofar as that policy related to meat, "[t]he policy had

already been implemented, on March 2, 1993, so the [Act's]

requisite 'intent to influence' that action could not have been

present in May." Williams, 29 F. Supp. 2d at 7. We do not

read the record the same way. While the generative "our

tolerance for fecal matter will be zero" memorandum had

been issued on March 2nd, the record indicates that FSIS

continued to develop and the USDA continued to implement

its pathogen control policy throughout 1993. Dr. Cross testi-

fied that FSIS worked on a policy of zero tolerance for meat

and poultry all during 1993, and that the policy was not ready

for presentation to the Secretary until November of that

year. See 6/17/98 Tr. at 466-67. Moreover, when Dr. Cross

left FSIS in 1994, his departure memorandum outlining pend-

ing issues listed several elements of the pathogen reduction

program for meat that had been originally introduced to the

public on February 4th and 5th.18 See GX120; GX116. Fi-

nally, whereas the district court emphasized that zero toler-

__________

18 Contrary to the dissent's suggestion, see Diss. Op. at 3 n.1, all

of the evidence we recount here involves the USDA's policy of zero

tolerance for meat. We are not concerned with, and in no way rely

upon, the course of the USDA's zero tolerance proposal for poultry.

ance applied only to cattle slaughter establishments, which

Tyson Foods had never owned, Dr. Cross's congressional

testimony illustrates that USDA's pathogen control policy

extended to processing plants as well, which Tyson Foods did

own. See GX116. In any event, regulations governing the

meat industry eventually affect all those in the business of

selling meat products, regardless of where they fall on the

stream of commerce linking the farm to the supermarket

shelf. Government initiatives that affect the cost of meat as a

raw material logically impact meat resellers like Tyson Foods.

In the absence of any direct statement by Schaffer or

Tyson Foods that Espy's attendance at the Russellville party

had been substantially motivated by an intent to influence the

Secretary, we assess the rationality of the jury's verdict by

examining the evidence before it. Our reading of the record

reveals that Schaffer and other officials at Tyson Foods had

extensive communications with the Secretary and his staff, in

each of which they sought to persuade USDA to shift a

pending policy in one direction or another. With respect to

the safe handling label issue alone, the prosecution introduced

a series of written communications seeking to sway the

USDA, each of which, in some form, had gone through

Schaffer. The jury had before it: (i) a letter from the Foods

Regulation Manager and the VP of Operations, Beef and

Pork Division at Tyson Foods to Secretary Espy, coupled

with testimony that Schaffer reviewed every such document

directed at government officials and the public, see GX130,

6/23/98 Tr. at 1290; (ii) a letter from Senator Dale Bumpers

(essentially drafted by Tyson Foods) to Secretary Espy and

to Vice President Gore, copies of which were simultaneously

sent to Schaffer, along with testimony regarding contempora-

neous communications between Schaffer and Senator Bump-

ers's office about the issue, see GX131, GX131A, 6/19/98 Tr. at

848-52, 6/23/98 Tr. at 1273-75; and (iii) a letter on the

labeling issue from Jack Williams to the point-man for the

White House with whom the Secretary was in close contact.

See GX136, GX138. In addition, the jury heard testimony

from George Watts, President of the National Broiler Coun-

cil, about an August meeting that he, Schaffer, and two others

had scheduled with Secretary Espy to discuss the labeling

issue. Watts additionally admitted to drafting a pre-meeting

memorandum wherein he communicated to the participants

the general impropriety of discussions between the Secretary

and industry representatives about regulations in the rule-

making stage, and the correlative need to tiptoe around the

issue. See 6/18/98 Tr. at 629-39, GX124. Finally, Patricia

Dempsey testified that she witnessed John Tyson confront

Secretary Espy about the labeling issue at a September 1993

reception, seeking to persuade him of the need to alter the

rule. See 6/22/98 Tr. at 1095.

Additional evidence strongly implied that Schaffer had

attempted to cover up the involvement of Tyson Foods in

Secretary Espy's trip to Russellville. Schaffer took a number

of further actions which collectively obscured the fact of

Espy's attendance at the party from other USDA officials.

For example, when communicating with Espy's travel coordi-

nator, he omitted to mention that the aircraft transporting

the Secretary belonged to Tyson Foods, describing it instead

as an APF charter. See 6/18/98 Tr. at 573-75. When the

USDA sought to reimburse the cost of Espy's transportation

and lodging, as required by agency policy, Schaffer directed

the APF to create phony invoices and allowed it to receive

payment for costs incurred by Tyson Foods. See id. at. 495-

502. Finally, Schaffer omitted Patricia Dempsey's name from

the passenger list of those traveling with the Secretary on the

corporate plane from Russellville, thereby obscuring the pri-

vate nature of the trip from Espy's travel coordinator. See

id. at 568, 570.

While admittedly circumstantial, we believe that this con-

fluence of testimony meets the standard of sufficiency. At a

minimum, the independent counsel's case: (i) identified spe-

cific policies of concern to the defendant and his employer;

(ii) that were pending, rather than merely inchoate, at the

time of the gratuities; (iii) about which the defendant and/or

his employer had timely communications with the recipient

public official; (iv) through which it made known its concerns,

recommendations, and the likely costs of compliance with the

policy in its then current form; (v) and that the official in

question was, at the time he received the gratuity, in a

position to influence the trajectory of the policies in question.

See United States v. Haldeman, 559 F.2d 31, 115-16 (D.C.

Cir. 1976) (in banc) (per curiam) ("Except in extraordinary

circumstances, criminal intent cannot be proved by direct

evidence; it is therefore not only appropriate but also neces-

sary for the jury to look at 'all of the circumstances' in

determining specific intent.") (citation omitted). Generally

speaking, when a gratuity prosecution has established each of

these elements, the jury can rationally decide the intent

question either way. While the jury could have accepted

Schaffer's defense, finding the gratuities to have been moti-

vated by a desire either to generate warm feelings towards

Tyson Foods or to satisfy Don Tyson's penchant for sur-

rounding himself with celebrities, our criminal justice system

leaves it to the jury to sort out the competing constructions of

the evidence.

B. Schaffer's Cross-Appeal

Having decided that the district court erred in granting

Schaffer's motion for a judgment of acquittal on the Meat

Inspection Act count, it becomes necessary to review the

court's conditional denial of Schaffer's alternative motion for a

new trial. Schaffer seeks a new trial on two separate

grounds, claiming that each creates sufficient doubt in the

integrity of the jury verdict to constitute reversible error.

Because we find each of the alleged grounds harmless under

the prevailing standard for assessing trial errors, we affirm

the district court's order and deny Schaffer's cross-appeal.

1. The Rule 608(a) Question

Schaffer challenges a series of rulings by the district court

which collectively precluded the defense from introducing

testimony regarding the government's grant of immunity to

both John and Don Tyson. During cross-examination, gov-

ernment witness John Tyson, who had been identified to the

jury as an unindicted co-conspirator and as Schaffer's boss,

testified that he and Schaffer had never discussed the possi-

bility of influencing Secretary Espy through largess, nor did

he ever think that Espy could be influenced thereby. See

6/19/98 Tr. at 948. Believing that these statements complete-

ly exonerated him, Schaffer sought to introduce the fact of

the Tysons' immunity to keep the jury from assuming that

John Tyson could be prosecuted were he to admit to having

discussions about influencing Secretary Espy. Unless cured

of this false presumption, Schaffer argued, the jury would

likely dismiss John Tyson's testimony on the grounds that he

had a strong incentive to prevaricate. The district court

excluded this line of questioning, concluding that it would

contravene Federal Rules of Evidence 608(a)'s proscription on

bolstering a witness whose credibility had not been subjected

to attack. In his motion for a new trial, Schaffer challenged

the court's construction of Rule 608(a), and alleged that it had

improperly and prejudicially kept relevant exculpatory evi-

dence from the jury. While the district court's interpretation

and application of Rule 608(a) are not without doubt, we find

the weight that Schaffer ascribes to the excluded testimony

even more dubious. Assuming arguendo that the court im-

properly excluded this testimony, we deny Schaffer's cross-

appeal because any error was clearly harmless.

Focused upon preventing the introduction of irrelevant,

time-consuming testimony, Rule 608(a) provides that:

The credibility of a witness may be attacked or sup-

ported by evidence in the form of opinion or reputation,

but subject to these limitations: (1) the evidence may

refer only to character for truthfulness or untruthfulness,

and (2) evidence of truthful character is admissible only

after the character of the witness for truthfulness has

been attacked by opinion or reputation evidence or other-

wise.

Fed. R. Evid. 608(a). The rule appears inapplicable, both

facially and structurally, to the testimony that Schaffer

sought to introduce. Turning to the language of Rule 608(a),

the existence of John and Don Tyson's immunity agreements

constitutes neither opinion nor reputation evidence, the only

two subjects mentioned therein. Moreover, as the rule

speaks in general terms of a witness's character for truthful-

ness or untruthfulness, it does not touch upon the separate

question of whether a generally truthful witness may have a

motive to lie in one specific instance. See United States v.

Lindemann, 85 F.3d 1232 (7th Cir. 1996) (distinguishing five

acceptable methods for attacking a witness's credibility, two

of which are attacking the witness's character for truthfulness

and demonstrating bias); 27 Wright and Gold, Federal Prac-

tice and Procedure s 6094 (1990) (same). As the Advisory

Committee Notes to Rule 608 explains, while evidence of a

witness's general character for honesty or integrity can pro-

vide de minimis support for a conclusion as to whether he is

testifying accurately on a particular occasion, the probative

value of such testimony will generally be outweighed by the

needless consumption of time involved in putting "good char-

acter" witnesses on the stand. See Fed. R. Evid. 608(a)

advisory committee's note. Accordingly, the Federal Rules

allow the introduction of opinion or reputation testimony to

attack a witness's credibility, but limit such good character

testimony to situations where the witness's veracity has al-

ready been specifically impugned. In contrast to a witness's

general character for truthfulness or untruthfulness, which is

largely peripheral to the facts at issue in a given case, the

question of a witness's potential bias is both particularized

and case-specific. The presence or absence of bias has

relevance because it speaks to whether a witness has an

interest in this case, or a particular affinity or dislike for this

party. See United States v. Abel, 469 U.S. 45, 51 (1984) ("A

successful showing of bias on the part of a witness would have

a tendency to make the facts to which he testified less

probable in the eyes of the jury than it would be without such

testimony."); United States v. Akitoye, 923 F.2d 221, 225 (1st

Cir. 1991) (if the cross-examiner may bring out facts tending

to show bias, "it follows that the cross-examiner can be

allowed some latitude, in an appropriate case, to bring out the

absence of bias-producing facts and circumstances, thereby

strengthening the credibility of a helpful witness"). In light

of its disparate focus, we do not see why Rule 608(a) would

apply.

Even if Rule 608(a) should not have been used to exclude

the fact of John and Don Tyson's immunity, though, any error

made by the district court in this case was harmless. When

reviewing non-constitutional trial error, we apply the stan-

dard articulated in Kotteakos v. United States, asking wheth-

er we can say "with fair assurance, after pondering all that

happened without stripping the erroneous action from the

whole, that the judgment was not substantially swayed by the

error...." 328 U.S. 750, 765 (1945). In so doing, we cannot

merely replicate our previous sufficiency-of-the-evidence in-

quiry; rather, we ask "even so, whether the error itself had

substantial influence" on the jury. Id.

In this instance, looking at the record as a whole, we think

it evident that the district court's evidentiary ruling did not

have a substantial influence on the jury verdict. The jury

heard John Tyson's testimony, a portion of which allegedly

exculpated Schaffer, but apparently did not lend that portion

much credence. Had the jurors additionally learned that

John Tyson could not be prosecuted for any non-perjurious

testimony because of his immunity agreement, it is still

difficult to believe that their deliberations would have been

affected. John Tyson's credibility had already been called

into question repeatedly by contradictory testimony. For

example, he denied discussing the safe handling labels issue

with Secretary Espy at a September 1993 party, see 6/19/98

Tr. at 917, while Patricia Dempsey testified that Tyson had

confronted Espy there and requested greater flexibility with

the safe handling labels regulation. See 6/22/98 Tr. at 1095.

Tyson also disputed the proposition that his company had

been "concerned" about the labeling issue, see 6/19/98 Tr. at

919, despite the extensive Tyson Foods lobbying effort docu-

mented in the record. The fact that Tyson lacked a penal

motive to cover up the company's or his own attempt to

influence Espy would have done little, we think, to alter the

jury's assessment of his credibility. Since any admission that

Tyson Foods' future president had conspired with others to

influence the Secretary of Agriculture would have generated

a torrent of negative publicity, which itself would have been

highly damaging to the company's (and John Tyson's) busi-

ness interests, the jury had stronger reasons to be skeptical.

Finally, even assuming that an awareness of his immunity

agreement would have sufficiently buttressed Tyson's credi-

bility that the jury believed him, his testimony still did no

more than establish an expected negative. Given the pre-

sumptive expectation that corporate officials would not be so

brazen as to discuss some plan or scheme to influence the

Secretary openly, but would more likely proceed by winks

and nods, the mere absence of any conversations between

himself and Schaffer about such a conspiracy casts little if

any doubt upon the jury's determination that Schaffer had

acted with the requisite intent. All in all, then, we cannot

conclude that the jury would have been swayed in a different

direction solely by learning that Tyson testified under a grant

of immunity.

2. The Independent Counsel's Opening and Closing Argu-

ments

Schaffer also challenges a series of statements made by the

prosecution during its opening, closing, and rebuttal remarks,

each of which allegedly misstated the elements of the crimes

charged. On each occasion, Schaffer contends, the prosecu-

tion invited the jury to convict him for engaging in lobbying

activities alone, without finding the necessary intent to influ-

ence specific official acts needed for conviction under the

federal gratuity statute and the Meat Inspection Act.19

__________

19 In its opening remarks, the prosecution referenced Tyson

Foods' desire to "get cozy" with Secretary Espy four times. While

it directly modified this statement on two occasions by stating that

gifts "were given in order to get cozy so that they would influence

the Secretary of Agriculture in the performance of his duties," 6/16

Tr. at 100, 99, the independent counsel did speak only of "getting

cozy" during the other two. In its closing rebuttal statement, the

independent counsel also made the following remark:

What the defendants did here, we submit, should not be

tolerated. You will decide by your verdict what the standard

is. The defendants are guilty beyond a reasonable doubt of the

charges contained in the indictment.

The question is, do you want lobbyists for regulated industry

to give anything to an official that regulates your food supply

when so much is at stake?

Measuring the potential prejudicial effect of these allegedly

improper statements with reference to the entire proceeding,

as the Supreme Court instructed in United States v. Young,

470 U.S. 1, 11-12 (1985), we cannot say that Schaffer was

unfairly prejudiced.

To determine whether improper prosecutorial statements

prejudiced a defendant's right to a fair trial, this court

generally considers four separate factors. We examine: (i)

the severity of the misconduct; (ii) the measures taken to

cure the misconduct; (iii) the certainty of conviction absent

the improper misconduct, see United States v. Perholtz, 842

F.2d 343, 361 (D.C. Cir. 1988); and (iv) the centrality of the

issue affected by the error. See United States v. Gartmon,

146 F.3d 1015, 1026 (D.C. Cir. 1998). Reviewing the trial

record as a whole, as required by this fact-intensive inquiry,

we do not believe that the jury was substantially swayed by

the independent counsel's isolated missteps. In their opening

and closing remarks, both the prosecution and the defense

continually stressed to the jury the need to link the things of

value with an intent to influence Secretary Espy. See, e.g.,

6/26/98 Tr. at 100, 103, 115, 125, 130, 135; 6/25/98 Tr. at 1703,

1717, 1726, 1729, 1737, 1742, 1766. The district court did the

same in its instructions to the jury, repeatedly emphasizing

that Schaffer could not be found guilty of the offenses

charged unless he acted with the requisite intent to influence

the Secretary. See 6/26/98 Tr. at 1778-80, 1788. From start

to finish, this question of intent had center stage at the trial.

Because we have no doubt that the jury understood and

deliberated on the basis of the proper legal standard, we

cannot say that any of the statements in question had any

effect on the jury verdict, substantial or otherwise.

III. Conclusion

For the reasons set forth, we affirm the district court's

judgment of acquittal in part and reverse in part. Because

__________

See 6/25/98 Tr. at 1765-66. Defense counsel immediately objected,

and the court sustained the objection and instructed the jury to

disregard the statement.

we additionally reject the challenges raised in Schaffer's

conditional cross-appeal, we vacate the judgment of acquittal

on the Meat Inspection Act count, reinstate the jury verdict,

and remand for sentencing.

So ordered.

Karen LeCraft Henderson, Circuit Judge, concurring in part

and dissenting in part:

I concur in the majority's holding that the gratuity verdict

is not supported by the evidence but I disagree with its

reversal of the district court's judgment of acquittal on the

Meat Inspection Act count. I believe, like the district court,

that the government failed to adduce evidence to support a

finding of intent to influence discharge of a specific duty

under the Meat Inspection Act, as required by the United

States Supreme Court's decision in United States v. Sun-

Diamond Growers of Calif., 119 S. Ct. 1402 (1999). There-

fore, I would uphold the district court's judgment of acquittal

on each count of conviction.

Writing on a clean slate, I would propose for both section

22 of the Meat Inspection Act (which criminalizes the giving a

thing of value to a government official "with intent to influ-

ence said [official] in the discharge of any duty provided for in

[the Meat Inspection Act]," 21 U.S.C. s 622) and for the

gratuity provision of 18 U.S.C. s 201(c) (which criminalizes

giving or receiving a thing of value to or by a public official

"for or because of any official act performed or to be per-

formed by such public official," 18 U.S.C. s 201(c)) a much

less rigorous showing of intent than the Supreme Court

imposed on the gratuity provision in Sun-Diamond. Never-

theless, given the Court's strict construction of the gratuity

provision there, I do not see how we can interpret section 22

more leniently here.

In Sun-Diamond, the Supreme Court concluded the

phrase "for or because of any official act" in the gratuity

provision "means 'for or because of some particular official act

of whatever identity'--just as the question 'Do you like any

composer?' normally means 'Do you like some particular

composer?' " 119 S. Ct. at 1407. The Court acknowledged

that "[i]t is linguistically possible, of course, for the phrase to

mean 'for or because of official acts in general, without

specification as to which one'--just as the question 'Do you

like any composer?' could mean 'Do you like all composers,

no matter what their names or music?' " Id. The court

stated, however, that "the former seems to us the more

natural meaning." Id. Applying the same approach to sec-

tion 22 of the Meat Inspection Act, I believe the "more

natural meaning" of "in the discharge of any duty" must be

similarly construed to be "in the discharge of some particular

duty of whatever identity." Although, as the majority ob-

serves, the Meat Inspection Act contains no definition of

"duty" comparable to section 201's definition of "official act,"

on which the Sun-Diamond Court relied to buttress its

interpretation of the gratuity provision, we must still, I

believe, adhere to what the Supreme Court has indicated the

"natural meaning" of "any duty" is. That this meaning is the

required one under Sun-Diamond is reinforced by the

Court's treatment there of the bribery provision in 18 U.S.C.

s 201(b)(1)-(2), which--in language similar to that of section

22 of the Meat Inspection Act--proscribes the giving

(s 201(b)(1)) and receiving (s 201(b)(2)) of a thing of value

"with intent, inter alia, 'to influence any official act' (giver) or

in return for 'being influenced in the performance of any

official act' (recipient)." 119 S. Ct. at 1406 (quoting 18 U.S.C.

s 201(b)(1), (2)).

In Sun-Diamond, the Supreme Court compared section

201(b)'s bribery provision with section 201(c)'s gratuity provi-

sion and concluded that "[t]he distinguishing feature of each

crime is its intent element." 119 S. Ct. at 1406. The Court

noted that for a violation of the bribery provision, "there must

be a quid pro quo--a specific intent to give or receive

something of value in exchange for an official act," 119 S. Ct.

at 1406 (emphasis original), while the gratuity provision "re-

quires only that the gratuity be given or accepted 'for or

because of' an official act." Id. (emphasis added). The Court

took for granted that the more stringent quid pro quo intent

requirement for bribery required a connection between the

thing given and a specific act or omission by the public

official. The only disputed question in the Court's eyes was

whether the same connection was required to satisfy the more

lenient intent standard of the gratuity proscription in section

201(c). The Court determined that it was, admonishing that

"a statute in this field that can linguistically be interpreted to

be either a meat axe or a scalpel should reasonably be taken

to be the latter." 119 S. Ct. at 1410. We must likewise,

therefore, treat section 22 as a scalpel which can excise only

the most precisely delineated bribes. If the gratuity provi-

sion requires proof of a "link" between a bribe and a particu-

lar act, as Sun-Diamond held, the intent language in section

22 must also be construed to mandate a link between the

thing given and discharge of a specific duty the giver has

attempted to influence. Applying the Sun-Diamond stan-

dard, I cannot find evidence to support the required link

between the May 1993 feting of Agriculture Secretary Espy

in Russellville, Arkansas and an intent on appellee Schaffer's

part to influence either the "zero tolerance" policy or the safe

handling labeling policy for meat.

First, there is nothing in the record to connect the Russell-

ville festivities to the government's "zero tolerance" policy--

except for the bare facts that Tyson Foods was a business

that might be affected by such a policy and that the policy (or

its revision) may have been actively under consideration by

the Department of Agriculture at the time.* This coincidence

does not, as Sun-Diamond requires, "prove a link" between

the policy and the party. See Maj. Op. at 19 (concluding that

"an awareness by a regulated entity that the USDA had been

developing a new pathogen control policy" is not "definitive

link" under gratuity provision). There is nothing to suggest

that at the time of the Russellville weekend Tyson Foods was

concerned about the policy in any specific way, much less that

it invited Secretary Espy with the intent to influence the

__________

* As the majority notes, a zero tolerance policy for meat had

already been adopted in February 1993. See Maj. Op. at 5, 18. To

the extent the evidence shows an intent to influence a zero tolerance

policy for poultry, it cannot support a violation of section 22 of the

Meat Inspection Act which criminalizes only gifts to influence the

discharge of a duty under the Meat Inspection Act. Poultry

labeling is not a duty under the Meat Inspection Act, which governs

only "meat and meat food products," see 21 U.S.C. ss 602, 603,

defined as "any product capable of use as human food which is

made wholly or in part from any meat or other portion of the

carcass of any cattle, sheep, swine, or goats," id. s 601(j) does not

govern poultry.

policy--whether intending to "induce" or "discourage" action

on it or to "encourse [him] adhere to the status quo." See

Maj. Op. at 27. As for the safe handling labeling, the

evidence the majority cites to show Tyson Foods was con-

cerned about the policy relates to the August 1993 promul-

gation of emergency labeling regulations, to take effect 60

days later, and Tyson Foods' opposition to their expedited

implementation. See Government Exhibits 124, 130, 131,

131A, 136, 138; Trial Tr. at 625-35, 848-52, 1095, 1273-75.

There is nothing to suggest that Tyson Foods was aware of

the expedition--or that it was even planned--at the time of

the Russellville festivities in May 1993.