Petition for Writ of Certiorari — Schaltenbrand v. United States

pi: 8 Segreme Cour, WS.

FrLBD

NOV 4 1991

{

\ OFFICE OF THE CLERK |

No:

IN THE SUPREME COURT OF

THE UNITED STATES

OCTOBER TERM, 1991

EUGENE D. SCHALTENBRAND, Petitioner

V.

UNITED STATES OF AMERICA, Respondent

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

DERYL D. DANTZLER

328 Orange Street

Macon, GA 31201

(912)746-4151

Counsel of record

QUESTIONS PRESENTED

1. At what point does a temporary government employee

who is seeking permanent employment in the private

sector enter into the status of “negotiating for

employment” such that he commits a felony under 18

USC §208(a) by failing to disqualify himself or

otherwise refrain from further performance of his

assigned governmental duties in connection with a

matter in which a potential future employer has a

financial interest?

[Petitioner would like to reserve the right to argue

question 2 in the event that Certiorari is granted on

question 1, but does not rely upon question 2 as a

reason for granting the Writ. ]

2. Did the Eleventh Circuit Court of Appeals abuse its

Page 1

discretion by affirming petitioner’s conviction of

violating 18 USC §208(a) based on its view that the

evidence showed “conduct [falling] under a common

understanding of the term ‘negotiation’” even though

the District Court, sitting without a jury, had applied to

the evidence a definition of the term which the Appellate

Court specifically declined to approve: “simply to

converse with somebody else; carry on a conversation

about something you hope to do or intend to do?”

Page 2

TABLE OF CONTENTS AND AUTHORITIES

CONTENTS

Questions Presented .............cccccscsseccoseese page 1

Opinions Below. ...............cccsccscesseesseeeeeeee Page 5

EEO ET page 5

a aidiisdcsncisdasntsnnseenenninia page 6

Statement of the Case .............sscccssssssees page 8

Reasons for Granting the Writ............. page 11

The Eleventh Circuit ignored the decision of this

Court in Crandon v. United States. ........ page 12

The Eleventh Circuit opinion is in direct and

apparent conflict with the decision of this court

in Crandon vy. United States. ............... page 14

The Eleventh Circuit opinion misconstrues an

important federal statute and applies its criminal

provisions to conduct not specified or intended

itech icustiiniislidoiadincnends page 16

Important Governmental interests are harmed

by continuing doubt as to the meaning of "ne-

Page 3

gotiating for employment”, ..........sesss« page 21

CI sicsieiaticcininsinttcitsicinicnticintnnnpnesiinieiiiith page 22

Index to Appendix ................. following page 22

AUTHORITIES

Crandon y. United States, 494 U.S. 152, 110S.Ct. 997,

SEI Ree BFE CE DWD osncscsinsesinscronee throughout

United States v. Boeing, 845 F.2d 476 (1988), Re-

versed, Sub nom Crandon v. United States .page 14

United States v. Conlon, 628 F.2d 150(D.C.Cir. 1980),

cert. denied, 454 U.S. 1149, 102S.Ct.1015, 71 L.Ed.2d

I ikietbiciirdcaaimeairecs: lee page 14,15

United States v. Hedges, 912 F.2d 1397 (11th Circ.

| _ R nereie ns LENE Bente ty an Aer page 13, 15, 19

United States v. Irons, 640 F.2d 872 (7th Cir.

EON F <Miisccuicdisacsntationsbaceamaianinecaie page 14, 15

OPINIONS BELOW

The opinion of the Court of Appeals for the Elev-

Page 4

enth Circuit is reported at 930 F.2d 1554, and is

reprinted in the Appendix.

The judgment of the United States District Court

for the Middle District of Georgia (Owens, D.J.) in-

cluding findings of fact and conclusions of law was

rendered orally, and has not been reported. The portion

of the transcript relevant to this Petition is reproduced

in the Appendix.

JURISDICTION

On Petitioner’s direct appeal from his Federal

criminal conviction, the Eleventh Circuit entered a

judgment and opinion affirming his conviction of

violating 18 USC §208(a) on May 13, 1991. Thereafter,

on August 7, 1991, Petitioner’s timely petition for

rehearing was denied.

The jurisdiction of this Court to review the

judgment of the Eleventh Circuit is invoked under 18

USC §1254(1) and Rule 13.1, Rules of the Supreme

Page 5

Court of the United States.

STATUTE INVOLVED

18 USC §208 Acts Affecting a Personal Financial

Interest

(a) Except as permitted by subsection (b) hereof,

whoever, being an officer or employee of the executive

branch of the United States Government, of any

independent agency of the United States, a Federal

Reserve bank director, officer, or employee, or of the

District of Columbia, including a special Government

employee, participates personally and substantially as

a Government officer or employee, through decision,

approval, disapproval, recommendation, the rendering

of advice, investigation, or otherwise, in a judicial

proceeding, application, request for a ruling or other

determination, contract, claim, controversy, charge,

accusation, arrest, or other particular matter in which,

to his knowledge, he, his spouse, minor child, partner,

Page 6

organization in which he is serving as officer, director,

trustee, partner or employee, or any person or organi-

zation with whom he is negotiating or has any arrange-

ment concerning prospective employment, has a finan-

cial interest —

Shall be fined not more than $10,000, or

imprisoned not more than two years, or both. !

STATEMENT OF THE CASE

In early 1987, Petitioner was a 55 year oldenviron-

mental engineer who was laid off from his position

with a private corporation. Petitioner also held a

commission as a Colonel in the United States Air Force

Reserves and was assigned to Warner Robins Air Force

The Ethics Reform Actof 1989, Pub.L.No. 101-194, 103 Stat.

1716, amended this provision by inserting the word “general”

before “partner” in two places, by clarifying the language with

respect to employees of the District of Columbia and by referring

the punishment provisions to a new section: 18 USC §216. That

section provides fora one year maximum sentence for violations

and a five year sentence for “willful” violations. §216 also

provides for alternative civil sanctions.

Page 7

Base (WRAFB) in central Georgia for his annual

reserve commitment. Petitioner informed his com-

manding officer that he was available for active duty

assignments if needed while he sought permanent

civilian employment.

Between mid-February and the first of May,

Colonel Schaltenbrand served brief periods of

temporary duty under various Reserve classifications.

He also served one sixty day period from May 5 to July

1. Beginning in March and ending July 1, Petitioner

assisted in a project involving the sale of surplus

aircraft to the Mexican Air Force. The Mexican

Government had selected Teledyne Brown Engineering

(TBE) as the private contractor to provide support of

the aircraft once received in Mexico.

Following a meeting concerning the project at

WRAFB in early April, Petitioner spoke with a vice

president of TBE and expressed his interest in working

Page 8

for TBE. He was told to submit an application through

the personnel department. He sent a resume and then

traveled to TBE’s office in Huntsville, Alabama where

he filled out an application at the personnel department

and was interviewed by the same vice president. No

salary was discussed and no employment offers were

made.

At the time that Petitioner applied to TBE, that

company was advertising the position nationally and

continued to do so throughout the summer of 1987.

When petitioner was interviewed, he was told that the

company wanted a Spanish speaking pilot for the

position. Petitioner stated he would be willing to take

a course in Spanish to become qualified but there was

never any contention that he took any steps to do so.

Several months after Petitioner’s last contact

with the Mexican project, Petitioner again contacted

TBE and informed them that he had another job offer

Page 9

but was still interested in the position in Mexico.

Despite a more than four month search, TBE had been

unable to find a candidate meeting all of their

requirements and therefor called back and offered the

position to Petitioner. Four days later, Petitioner

accepted the offer.

Petitioner’s criminal trial in the United States

District Court for the Middle District of Georgia for

violation of 18 USC §208(a)? began before a jury, but

,by agreement, was converted to a non-jury trial in

which petitioner was convicted. The decision of the

District Court included oral findings of fact and law

which are set out in the Appendix.

Petitioner was sentenced to six months impris-

2 Petitioner was also charged with a violation of 18 USC §207(a)

based on his presence at a status conference concerning the

project in November 1987 after he began employment with

TBE. His conviction on this charge was reversed by the

Eleventh Circuit which directed the entry of an acquittal. United

States v. Schaltenbrand, 930 F.2d 1554.

Page 10

onment followed by five years probation plus a fine of

two thousand five hundred dollars. Release pending

appeal was denied by the District Court but granted by

the Court of Appeals after petitioner had served thirty-

one days of the sentence. The mandate of the Eleventh

Circuit affirming this conviction has been stayed pend-

ing disposition of this Petition.

REASONS FOR GRANTING THE

WRIT

In deciding Petitioner’s case, the Eleventh Circuit

disregarded the decision of this Court in Crandon vy.

United States,494 U.S. 152, 110S.Ct.997, 108 L.Ed.2d

132 (1990) and analyzed the question here presented in

a manner wholly inconsistent with that opinion. As a

result, the Eleventh Circuit has improperly construed

18 USC §208(a) and applied its criminal provisions to

conduct which Congress neither specified nor intended.

Page 11

The construction given the statute by the opinion

below was not only overly broad, but was also so

imprecise as to leave all persons covered thereby in

doubt as to what they must do in order to comply. This

doubt necessarily will have a significant detrimental

effect on important governmental interests.

The Eleventh Circuit ignored the decision of this

Court in Crandon.

~~ This Court’s decision in Crandon v. United States,

supra, was announced on the day of petitioner’s sen-

tencing. Beginning with the Motion for Release Pend-

ing Appeal, Petitioner urged that the Eleventh Circuit

consider his case in light of Crandon and apply the

principles there announced to the issues raised in his

appeal.

Despite extensive briefing and argument of the

applicability of Crandon, the Eleventh Circuit

inexplicably refused to consider that holding and

Page 12

mentioned it only in passing:

“Schaltenbrand relies on the recent Supreme

Court case of United States v. Crandon [citation

omitted] which applied the rule of lenity to

another government conflict of interest provision.

We simply note that [United States v. Hedges

[912 F.2d 1397, 11th Circ. 1990], which was

decided after Crandon, specifically addressed

the issue of lenity with respect to the term

‘negotiate’ and found that the term was not

ambiguous. Our reasoning ... is clearly consistent

with the Hedges holding on this issue.”

Even though Crandon was decided before

Hedges, the Hedges opinion makes no mention what-

soever Of Crandon. By citing Hedges instead of

considering the effect of Crandon and by incorrectly

viewing Crandon as merely an application of the rule

of lenity which can be disregarded in the absence of a

finding of ambiguity, the Eleventh Circuit has refused

to either follow or distinguish a decision of this Court

which was clearly relevant to the case considered and

which demanded a different result.

Page 13

The Eleventh Circuit Opinion is in direct and

apparent conflict with the decision of this Court

in Crandon v. United States

Again citing their own opinion in Hedges, the

Eleventh Circuit found a Congressional intent requiring

that the “the term [negotiate]...be broadly construed.”

Other cases to similar effect were also cited: United

States v. Irons, 640 F.2d 872 (7th Cir. 1981) and United

States v. Conlon, 628 F.2d 150 (D.C.Cir. 1980), cert.

denied, 454 U.S. 1149, 102 S.Ct.1015, 71 L.Ed.2d 304

(1982).

The Fourth Circuit decision reversed in Crandon

had followed this same reasoning and had divined a

Congressional “policy behind §209 and the conflict of

interest laws in general ... [which] support[ed] a broad

interpretation of its coverage” (United States v. Boeing,

845 F.2d 476). In reversing, this Court specifically

repudiated this holding, finding instead that,

Page 14

Because construction of a criminal statute must

be guided by the need for fair warning, it is rare

that legislative history or statutory policies will

support a construction of a statute broader than

that clearly warranted by the text. In this case,

each of these sources indicates that our reading

of the statutory language is consistent with

Congressional intent.

In determining Congressional intent, this Court

noted “an important countervailing consideration”

which had been ignored by the Fourth Circuit and

which counseled against interpreting conflict of interest

prohibitions broadly. This consideration was, in short,

that overly broad conflict of interest provisions can

impair the ability of the Government to attract qualified

employees — particularly temporary ones. This same

error in assessing Congressional intent was made in

each of the cases relied on below: Hedges, Irons and

Conlon.

This Court went on in Crandon to analyze 18

USC §209 and the Legislative History which that

Page 15

provision shares with §208 and held that §209 could

not be applied to situations which were not clearly and

precisely within the terms of its prohibitions even if

such situations raised the same type of “appearance of

impropriety” as was the target of the prohibition.

Finally, this Court held that, “[t]o the extent that any

ambiguity ... remains, [the rule of lenity requires that]

it should be resolved in petitioner’s favor....”

The Eleventh Circuit opinion misconstrues an

important federal statute and applies its criminal

provisions to conduct not specified or intended by

Congress.

Obviously, the careful study of the precise language

of §209 which was undertaken by both the majority

and the concurrence in Crandon is not directly

applicable to Petitioner’s case which involves §208.

The same approach however should be applied to §208

and, if this is done, the result will be different from that

reached by the Eleventh Circuit in this case.

The Crandon opinion instructs that, “[i]n deter-

mining the meaning of [a] statute, [courts should] look

not only to the particular statutory language, but to the

design of the statute as a whole and to its object and

policy [citations omitted].” Taking these issues in

reverse order, the Congressional policy applicable to

the entire Ethics in Government Act of 1962 (18 USC

§§201 -224) has been discussed above. Consideration

of the object, design and language of §208 also supports

the construction urged by Petitioner and rejected by the

Eleventh Circuit.

Just as §209 addressed the problem of two

paymasters, §208 addresses that of self-dealing. The

primary purpose of §208 is to prevent employees from

being in positions in which actions taken as

Governmental employees could affect or appear to

affect their personal financial interests. Direct financial

Page 17

interests are covered. Certain indirect interests,

including those of an employer are also covered. Near

the outer limit of the coverage of §208 is the prospective,

indirect financial interest of an organization with which

the Government employee has an “arrangement” for

future employment. Finally, at the statute’s most

attenuated extreme, is the potential, prospective, indirect

financial interest of the organization with which the

Government employee is “negotiating” for

employment.

Congress’s decision to go to this extent to protect

the Government from self-dealing must not be taken by

the courts as an excuse to go even further. Giving

meaning to all of the statutory terms, “negotiating”

would have significant utility in this statutory scheme

if it were limited to the point in discussions at which

offers and counter-offers are exchanged. Had Congress

wished to specify an earlier level it could have done so.

Page 18

——— eee

In fact, it did do so in 10 USC §2397(a). That non-

criminal statute requires certain employees involved in

procurement functions to remove themselves from

projects if they contact or are contacted by an involved

defense contractor conceming employment. Clearly,

Congress intended there to draw an earlier line to

control the conduct of employees engaged in

procurement activities than it had drawn with respect

to all employees in §208. There is no clear point

between the first contact concerning employment and

the receipt of the first offer where it would be possible

to draw a line which would wam employees that they

have entered the status of “negotiating.”

18 USC §202 provides definitions for many of

the terms used in §208 and other conflict of interest

provisions. “Negotiating” is not among the defined

terms and none of the administrative regulations appear

to have undertaken its definition. In the opinion below

Page 19

and in their earlier opinion in Hedges, the Eleventh

Circuit says that the term is subject to a “common

understanding” and “is to be given its common everyday

meaning...” but neither opinion makes any effort to

specify what this “common” meaning is. Although

holding in both opinions that the term “negotiating” is

not ambiguous, they also hold that “the term is to

broadly construed.”

The Eleventh Circuit rejected as a definition of

negotiating, the standard by which Petitioner’s con-

duct was measured in the District Court and the basis

upon which he was sentenced to prison: that negotiate

means “simply to converse with somebody else, carry

on a conversation about something that you hope to do

or intend to do.” If a Federal District Court judge can

hold that this is what “negotiate” means and a Circuit

Court of Appeals can disagree but not offer any more

precise definition, it is difficult to understand how the

Page 20

term “negotiate” can be held to be unambiguous. Ifa

term is subject to at least two constructions, one “broad”

and another “narrow,” then the term is patently am-

biguous. Petitioner and others whose conduct is regu-

lated by §208(a) are entitled to the benefit of this

ambiguity.

Important governmental seiaiiaie are harmed by

continuing doubt as to the meaning of "negotiating

for employment”.

Obviously, anyone who is in the position in which

Petitioner found himself in early 1987 — a part time

Reserve officer with extra time available while he

sought full time employment — would be well advised

to avoid temporary active duty which might limit his

efforts to find a permanent job. Other temporary

positions would be affected also. Further, any employ-

ees who are uncertain as to whether or not preliminary

discussions of future employment had created the

Page 21

status of “negotiating” would be led to disqualify

themselves prematurely from continuing to perform

their assigned duties. The full extent to which contin-

ued confusion concerning the proscriptions of §208

might hamper the entire Reserve Officer program and

other situations of temporary or terminal Governmen-

tal employment can only be the subject of speculation.

Any detriment, however, which is not required by the

statute nor intended by Congress is unacceptable.

CONCLUSION

For the reasons given above, the writ of certiorari

should be granted, the decision of the Eleventh Circuit

reversed, and a judgement of acquittal entered.

Respectfully submitted,

Deryl D. Dantzler

328 Orange Street

Macon, GA 31201

(912)746-4151

Counsel of Record for Petitioner

INDEX TO APPENDIX

United States v. Schaltenbrand,

930 F.2d 1554 (1991) ...... peice caccennnenl page |

Oral Order of District Court ...............0.. page 31

Denial of Rehearing

UNITED STATES of America,

Plaintiff-Appellee,

v.

Eugene Donald SCHALTENBRAND,

Defendant-Appellant

No. 90-8228

United States Court of Appeals,

Eleventh Circuit.

930 F.2d 1554

May 13, 1991

Dery! D. Dantzler, Macon, Georgia for Appellant.

Miriam Wansley Duke, AUSA, Macon, Georgia,

For Appellee.

Appeal from the United States District Court for the

Middle District of Georgia.

ON PETITION FOR REHEARING

Before: TJOFLAT, Chief Judge, KRAVITCH,

Circuit Judge, and GODBOLD, Senior Circuit Judge.

Appendix - Page |

|

KRAVITCH, Circuit Judge

Appellant’s petition for rehearing is granted. The

opinion entered February 7, 1991 is vacated. The

following opinion is entered in lieu thereof:!

INTRODUCTION

Defendant-Appellant Colonel Eugene

Schaltenbrand appeals his conviction of two violations

of the government employee conflict of interest stat-

utes. Specifically, he was convicted under 18 U.S.C. §

208(a), which prohibits government employees from

working on projects in which they have a financial

interest, and 18 U.S.C. §207(a), which prohibits former

government employees from representing private par-

ties before the government on matters in which they

previously worked for the government. We affirm the

section 208(a) conviction and reverse the section 207(a)

conviction.

' On petition for rehearing, appellant Schaltenbrand ar-

gues, inter alia, that our opinion entered February 7, 1991

overlooked critical language in the indictment concern-

ing his conviction under 18 U.S.C. § 207(a). We agree. The

other arguments presented in appellant’s petition are

meritless.

Appendix - Page 2

FACTS

In early 1987, the United States Air Force was

engaged in a program to sell certain C-130 aircraft to

friendly countries. These aircraft were being phased

out of the American fleet because they were no longer

cost effective to keep as a means of primary defense.

One aspect of the program was to develop a system of

maintenance and support or the aircraft through a

private defense contractor.

Colonel Carl McPherson served as the System

Program Manager of the project. To assist him on the

project, McPherson requested the activation of

Schaltenbrand, a reserve officer who was available at

the time for extended service. From February 17, 1987

through May 1, 1987, Schaltenbrand was activated

nine times for short periods of duty, usually lasting two

to five days, with one period of sixteen days. Air Force

records show that some of these periods were desig-

nated “active” duty, while some were designated “‘in-

active” duty. During periods of inactive duty,

Schaltenbrand was not paid, but was required to wear

Appendix - Page 3

» meseneneseseneensmemsmeaememace

his uniform and received credit towards retirement.

In March 1987, Schaltenbrand was sent to Peru to

do a site survey, the purpose being to determine the

needs of that country so that the Air Force could better

tailor a package of aircraft and support for it. While

Schaltenbrand was in Peru, discussions between the

Air Force and Mexico were progressing rapidly, and

McPherson sent Schaltenbrand to Mexico to perform

a site survey there also. Shortly after Schaltenbrand’s

return from Mexico, McPherson requested that

Schaltenbrand be activated for a sixty-day period to

work exclusively on the Air Force’s deal with Mexico

(the “Mexican Project”). McPherson made this request

on March 25, 1987, but the sixty-day period did not

actually begin until May 3, 1987. According to

McPherson, Schaltenbrand was to be his “right-hand

man” on the Mexican Project.

In early April 1987, Schaltenbrand attended a meet-

ing concerning the Mexican Project. The purpose of

the meeting was to discuss the Mexican site survey and

to hear a proposal from Teledyne Brown Engineering

Appendix - Page 4

(“TBE”), a private contractor that had been selected by

the Mexican government as the likely provider of

support for the aircraft being sold to Mexico. At that

time, TBE’s contract for the project had not been

finalized. Following the meeting, Schaltenbrand spoke

with Harold Timmons, TBE’s vice president and rep-

resentative at the meeting. Schaltenbrand informed

Timmons that he was interested in working for TBE

after his duty with the Air Force ended. Schaltenbrand

told Timmons that he thought he was well qualified to

assist TBE with its potential contract for the Mexican

Project, and Timmons suggested that Schaltenbrand

fill out an application and send it to TBE’s personnel

department. He also mentioned that Schaltenbrand

should discuss with the Air Force any potential con-

flicts of interest that might arise.

Schaltenbrand sent a resume to TBE’s personnel

department and also travelled to TBE’s offices in

Huntsville, Alabama to further discuss the possibility

of employment. On the day of his visit to TBE,

Schaltenbrand apparently was listed on Air Force

Appendix - Page 5

records as on “inactive” duty. Schaltenbrand spoke

with Timmons about his qualifications, and Timmons

explained what TBE was looking for. TBE had done

some advertising for the position and was seeking

someone to lead TBE’s Mexican team. In addition to

flight experience, TBE wanted someone who could

speak Spanish. Schaltenbrand told Timmons that he

had thought about that, and that he would take a course

in Spanish in order to be qualified. No salary discus-

sions took place at that time.

Schaltenbrand’s sixty-day period of duty ended on

July 1, 1987, but he was activated for short periods on

several occasions throughout August and September.

Although the record is unclear as to the description of

his duties during these later periods, it does not appear

that he was significantly involved in the Mexican

Project. On or about September 21, 1987,

Schaltenbrand contacted TBE and informed it that he

had another offer of employment, and therefore needed

to know whether TBE was going to offer him a job. On

September 21, TBE offered him the position that he

Appendix - Page 6

had discussed with Timmons in April.

On September 24, Schaltenbrand went to the Office

of the Staff Judge Advocate of the Air Force, seeking

advice as to whether or not there were any conflict of

interest rules that would prevent him from accepting a

job with TBE. Upon his arrival at the office, he was

handed Air Force Form 1175, “Legal Assistance

Record” and told to fill out the section entitled “To be

completed by client,” which he did. The form con-

tained the following statements:

PRIVILEGED INFORMATION — In-

formation placed on this card is privileged.

Neither the lawyer nor such paralegal

assistants or clerical personnel as may assist

in the case will disclose this information to

anyone without the express consent of the

client. Furthermore, disclosure may not be

ordered by superior military authority.

PRINCIPAL PURPOSE(S): To collect

data on the number and types of legal

assistance cases handled and to help your

lawyer recall the type of legal problems

previously discussed with you.

DISCLOSURE IS VOLUNTARY: You

are not required to complete this card but

your failure to do so may result in your not

Appendix - Page 7

receiving legal assistance service.

After filling out the form, Schaltenbrand spoke to

Judge Advocate General (“JAG”) attorneys Michael

Deep and Michael Shutter. Deep and Shutter explained

that they were Deputy Counselors who represented the

government. They gave Schaltenbrand various printed

materials concerning the conflict of interest statutes

and regulations and answered questions for him. The

meeting lasted about an hour. When Schaltenbrand

asked about specific situations, he was told that due to

their status as representatives of the government, they

could not answer such questions and he would have to

retain his own counsel to discuss them. After this

meeting, Schaltenbrand accepted TBE’s offer on Sep-

tember 25 and began work on September 28.

In his new capacity as a TBE employee,

Schaltenbrand attended a meeting at the Air Force base

on November 4, 1987 concerning the Mexican Project.

The meeting was considered a “status conference.” At

this time, TBE still had not formalized its contract on

the project. Dale Weaver was the TBE spokesperson at

Appendix - Page 8

EST

the meeting and requested that Schaltenbrand accom-

pany him because Schaltenbrand would be responsible

for implementing the plans discussed at the meeting.

Aside from discussing some delivery schedules, there

is no evidence that Schaltenbrand made any other

contributions to the meeting.

Schaltenbrand later was investigated for possible

violations of the conflict of interest rules. During the

investigation, JAG attorneys Deep and Shutter ex-

plained to government investigators the nature and the

specifics of Schaltenbrand’s meeting with them con-

ceming his possible conflict of interest. Schaltenbrand

had not consented to these disclosures. He subse-

quently was convicted.

DISCUSSION

Section 208

[1] Schaltenbrand first challenges his conviction

under 18U.S.C. § 208(a). That section provides:

[W]hoever, being an officer or employee of

the executive branch of the United States

Government, . . . participates personally and

substantially ...in a... particular matter in

Appendix - Page 9

which, to his knowledge, he, . . . or any

person or organization with whom he is

negotiating or has any arrangement concern-

ing prospective employment, has a financial

interest .. . [shall be guilty of a felony].

The parties do not dispute that Schaltenbrand was

an officer of the executive branch or that he partici-

pated personally and substantially in the Mexican

Project. Thus, the only issue with respect to section

208(a) is whether or not his conduct in obtaining his

position with TBE amounted to “negotiation” under

the statute. Unfortunately, this term is not defined in

the statute.

This court recently addressed the definition of

“negotiation” under section 208(a) and stated that “the

terms ‘negotiating’ and ‘arrangement’ are not exotic or

abstruse words requiring detailed etymological study

or judicial analysis. They are common words of univer-

sal usage. People of ordinary intelligence would have

fair notice of the conduct proscribed by the statute.

United States v. Hedges, 912 F.2d 1397, 1403 (11th

Cir.1990) (quoting United States v. Conlon, 202 App.

Appendix - Page 10

D.C. 150, 628 F.2d 150, 154 (D.C.Cir.1980), cert.

denied, 454 U.S. 1149, 102 S. Ct. 1015, 71 L. Ed. 2d

304 (1982)).

Not surprisingly, Schaltenbrand urges a rather rigid

definition of negotiation. He points to the language in

Black’s Law Dictionary, which states:

Negotiation is process of submission and

consideration of offers until acceptable offer

is made and accepted. The deliberation, dis-

cussion, or conference upon the terms of a

proposed agreement; the act of settling or

arranging the terms and conditions of a

bargain, sale, or other business transaction.

Black's Law Dictionary 934 (Sth ed. 1979) (cita-

tions omitted). Schaltenbrand also points to the jury

instruction that was affirmed in Hedges:

Negotiation is a communication between

two parties with a view to reaching an

agreement. Negotiation connotes discussion

and active interest on both sides. Preliminary

or exploratory talks do not constitute nego-

tiation. Rather, to find a negotiation, you

must find hat there was a process of

submission and consideration of offers.

Hedges, 912 F.2d at 1403 n. 2.

Schaltenbrand argues that he had submitted an

Appendix - Page 11

application to TBE, but TBE did not make him an offer

until after he was finished with the Mexican Project.

Stating that “[nJegotiating is like doing the Tango —

there may be some dispute over who is going to lead,

but it still takes two,” he argues that no negotiations

took place because TBE had not yet shown interest on

its side.

Schaltenbrand contends that Hedges supports his

argument that “negotiation” cannot take place until an

offer is made. Although the Hedges court found that

negotiation had taken place, Schaltenbrand notes that

in that case the employer had proposed a salary for the

prospective employee, and the prospective employee

had countered with, a higher salary proposal. See

Hedges, 912 F.2d at 1403.

Contrary to the interpretation urged by

Schaltenbrand, we conclude his actions were not only

consistent with the definitions quoted above, but were

also consistent with the reasoning in Hedges. As an Air

Force reserve officer, Schaltenbrand approached TBE

about the possibility of employment. TBE responded

Appendix - Page 12

that he should fill out an application. After submitting

an application, he was invited by TBE to come to its

offices for an interview. During the interview,

Schaltenbrand and TBE discussed the necessary quali-

fications to fill a particular position. TBE stressed that

they needed someone who spoke Spanish.

Schaltenbrand replied that he would learn to speak

Spanish. Some months later, he received the exact

position he had discussed at the interview.

The above circumstances clearly indicate active

interest on both sides. The two parties were not en-

gaged in mere general discussions, but had a specific

position in mind and discussed the qualifications of the

position in detail. Moreover, when TBE suggested that

Schaltenbrand did not meet all of the qualifications, he

responded that he would remedy that problem.

Schaltenbrand contends that because TBE did not

make a formal offer, no negotiations took place. Here,

Schaltenbrand seems to forget his own argument that

negotiations “take two” — clearly if it takes two to

negotiate, there should not be a requirement as to who

Appendix - Page 13

must make their offer first. Schaltenbrand initiated the

dialogue, and TBE invited him to its offices and pur-

sued the matter further. To require that the statute does

not apply until the moment when a formal offer is made

is to read the statute too narrowly.

Schaltenbrand asserts, however, that his applica-

tion and interview cannot be considered an offer to

TBE. He stresses that by merely applying for the job,

he did not bind himself to accept it. We fail to see how

this takes his actions outside the definition of negotia-

tion. The whole purpose of “negotiation” is for each

side to present its position to the other party, in hopes

that it can attract the other party to eventually submit to

a binding agreement. There is no doubt that

Schaltenbrand’s purpose in applying and interviewing

for a position with TBE was to begin a process that

would ultimately lead to a binding employment agree-

ment. In effect, Schaltenbrand was “offering” himself

to TBE, hoping that TBE would make an offer on its

part.

This reading of the term “negotiate” is consistent

Appendix - Page 14

with the purpose of the statute. In discussing the history

of the statute, the Hedges court stated:

In the seminal case of the United States v.

Mississippi Valley Generating Co., 364 U.S.

520, 548, 81 S. Ct. 294, 308-10, 5 L. Ed. 2d

268, 288-89 (1961), in considering Section

208’s predecessor statute, 18 U.S.C. § 434,

the Supreme Court reviewed the legislative

history of the conflict of interest statute. It

observed that “the obvious purpose of the

Statute is to insure honesty in the

Government’s business dealings by

preventing federal agents who have interests

adverse to those of the Government from

advancing their own interests at the expense

of the public welfare.” Although the statute,

enacted in 1863, has been reenacted several

times, “the broad prohibition contained in

the original statute has been retained

throughout the years.” Hedges, 912 F.2d at

1401-02.

Despite the Supreme Court’s broad reading of

the statute, Congress amended the statute in 1962 with

the intent to make it even broader. See United States v.

Irons, 640 F.2d 872, 878 (7th Cir.1981). With regard to

the specific term “negotiate,” the Hedges court found

Appendix - Page 15

Sh inieeenseniinenennaeeie inertia

that “the term is to be broadly construed.” Hedges, 912

F.2d at 1403. Other courts have also reached this

conclusion. See Conlon, 628 F.2d at 155.2

Schaltenbrand also argues that if his definition of

negotiation is not adopted, the court should at least

hold that the term is ambiguous and apply the rule of

lenity. Schaltenbrand relies on the recent Supreme

Court case of United States v. Crandon, 494 U.S. 152,

110S. Ct. 997, 108 L. Ed. 2d 132 (1990), which applied

the rule of lenity to another government conflict of

interest provision. We simply note that Hedges, which

was decided several months after Crandon, specifi-

cally addressed the issue of lenity with respect to the

term “negotiate” and found that the term was not

ambiguous. Our reasoning above is clearly consistent

with the Hedges holding on this issue.

2 Although we find that “negotiation” should be read broadly,

we do not adopt the definition given by the district court in this

case. In its oral order, the district court stated that to negotiate “is

simply to converse with somebody else; carry on a conversation

about something that you hope to do or intend to do.” We hold

only that Schaltenbrand’s conduct falls under a common under-

standing of the term “negotiation” as discussed in our analysis

above.

Appendix - Page 16

icine nienc: iain

Section 207

Schaltenbrand also was convicted under 18 U.S.C.

§ 207(a). Section 207(a) prohibits former officers of

the executive branch from knowingly acting “as agent

or attorney for, or otherwise represent[ing], any other

person (except the United States), in any formal or

informal appearance before” any department of the

United States in connection with any contract in which

the former government employee participated person-

ally and substantially while employed by the govern-

ment. Again, there is no dispute that Schaltenbrand had

been an officer of the executive branch or that he was

involved personally and substantially in the Mexican

Project.

Although the statute prohibits acting as “agent or

attorney for, or otherwise represent[ing],” the indict-

ment in this case stated only that Schaltenbrand “did

act as agent” for TBE and failed to allege that he

“otherwise represent(ed]” TBE. Based on the language

in the indictment, Schaltenbrand could only be con-

victed of a violation of § 207(a) if the government

Appendix - Page 17

—=

proved beyond a reasonable doubt that he acted as an

agent at the November 4, 1987 meeting. See United

States v. Figueroa, 666 F.2d 1375 (11th Cir.1982). The

term “agent” is not defined in the statute, and we have

discovered no cases interpreting the term as it pertains

to the statute.

[2-4] Agency is defined as “the fiduciary relation

which results from the manifestation of consent by one

person to another that the other shall act on his behalf

and subject to his control, and consent by the other so

to act.” Restatement (Second) of Agency § 1(1) (1958).

The “principal” is “the one for whom action is to be

taken,” id. § 1(2), and the “agent” is “the one who is to

act.” /d. § 1(3). This court has stated that “an essential

characteristic of an agency is the power of the agent to

commit his principal to business relationships with

third parties. ...” Griffin v. United States, 588 F.2d 521,

3In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981)

(en banc), the Eleventh Circuit Court of Appeals adopted

as precedent the decisions of the former Fifth Circuit

issued before October 1, 1981.

Appendix - Page 18

528 (Sth Cir.1979).3 An agent has “actual” authority to

bind the principal where the principal has specifically

granted the agent the power to do so. See H.G.

Reuschlein & W.A. Gregory, Agency and Partnership

§ 14 (1979). An agent has “apparent” authority to bind

the principal where the principal has held out the agent

as having such authority or has permitted the agent to

represent that he has such authority. See Hunt v. Miller,

908 F.2d 1210, 1216 (4th Cir.1990); Yohay v. City of

Alexandria Employees Credit Union, 827 F.2d 967,

972-73 (4th Cir.1987); Trustees of the UIU Health and

Welfare Fund v. New York Flame Proofing, Co., 828

F.2d 79, 83-84 (2d Cir.1987).

[5] We will not reverse a conviction for insufficient

evidence in a non-jury trial unless, upon reviewing the

evidence in the light most favorable to the government,

no reasonable trier of fact could find guilt beyond a

reasonable doubt. United States v. Burstyn, 878 F.2d

1322, 1324 (11th Cir.1989). The evidence may be

sufficient even if it does not exclude every reasonable

hypothesis of innocence. United States v. Lopez, 898

_ Appendix - Page 19

F.2d 1505, 1509 (11th Cir.1990).

[6] Our review of the record leads us to conclude

that there is insufficient evidence to sustain the

government’s burden of proving that Schaltenbrand

acted as an agent for TBE at the November 4 meeting.

This case originally was tried before a jury, but the

parties later dismissed'the jury and entered stipulations

as to the remaining facts. Before the jury was dis-

missed, one witness testified regarding Schaltenbrand’s

role at the November 4 meeting. Robert T. White

testified that he had attended the meeting, and that

Schaltenbrand also had attended the meeting and had

signed the sign-in sheet. The sign-in sheet was entered

into evidence. Next to his name, Schaltenbrand wrote

“Teledyne.” In addition to testifying that Schaltenbrand

was physically present at the meeting and that

Schaltenbrand had signed the sign-in sheet, White

testified that he recalled Schaltenbrand discussing

delivery schedules for the aircraft.

Other than White’s testimony, the stipulations en-

tered into by the parties contain the only evidence

Appendix - Page 20

concerning Schaltenbrand’s role at the meeting. The

stipulations state the following:

It is stipulated that the government will

present no evidence that the defendant said

or did anything at the meeting, other than

White’s testimony that the defendant talked

about a delivery schedule.

It is stipulated that Weaver from Teledyne

Brown Engineering and the defendant will

testify that the defendant did not say or do

anything at the November 4, 1987, meeting.

Weaver will also testify that Weaver was the

spokesperson for Teledyne Brown Engineer-

ing at the November 4 meeting.

It is also stipulated that the defendant was

asked by Weaver to accompany Weaver to

the meeting in order to listen at the meeting

because the defendant was to carry out those

discussions in Mexico.

The above evidence shows only that Schaltenbrand

attended the November 4 meeting as an employee of

TBE, and that he did not participate other than to

discuss delivery schedules. The government produced

no evidence to show that TBE had given Schaltenbrand

authority to make any binding decisions on its behalf.

Moreover, the government produced no evidence to

Appendix - Page 21

|

show that TBE had held out Schaltenbrand as one who

could make binding commitments on its behalf or that

it had permitted Schaltenbrand to so hold himself out.

The government’s evidence on this point is especially

meager in light of the other stipulations indicating that

TBE’s spokesperson at the meeting was Weaver, and

that Weaver had asked Schaltenbrand to accompany

him to the meeting “in order to listen.” Based on this

record, we reject the government’s argument that

Schaltenbrand acted as “agent” at the meeting. In light

of this holding, we need not address Schaltenbrand’s

other arguments with respect to section 207(a).

Attorney-Client Privilege

[7] Schaltenbrand also argues that the attorney-

client privilege applies to his discussions with JAG

lawyers Deep and Shutter, and therefore evidence

obtained from them should have been excluded at trial.

The district court accepted briefs on this issue and held

an evidentiary hearing at which Schaltenbrand and

Deep testified. The district court then denied

Schaltenbrand’s motion to exclude the evidence. On

Appendix - Page 22

ll

appeal, “findings of a District Court on a pretrial

motion to suppress are binding upon this Court unless

they are clearly erroneous.” United States v. Newbern,

731 F.2d 744, 747 (11th Cir.1984).

At the evidentiary hearing, Schaltenbrand testified

that he sought out the JAG attorneys specifically to

obtain legal advice and that the attorneys did in fact

interpret the law for him. He also confirmed that he had

filled out the “Legal Assistance Record,” and stated

that he did not expect the attorneys to use the informa-

tion he had given them after he left the office.

Deep testified that he was a supervisory attorney

who was responsible for several programs within the

JAG office. He explained that under one program, JAG

attorneys act as attorney advisors in the Air Force legal

assistance program. This program is desigsed to assist

members of the Air Force and their families with a

limited range of legal problems. Deep acknowledged

that when acting as an attorney advisor, an attorney-

client relationship may arise out of an attorney’s dis-

cussions with someone. Under another program, JAG

Appendix - Page 23

attorneys act as Deputy Counselors for Air Force

standards of conduct. This program provides standards

of conduct “briefings” for members of the Air Force

inquiring about potential conflicts of interest. Deep

testified that his meeting with Schaltenbrand was such

a briefing, and that like all briefings, this one began

with a statement that the attorneys represented the

government, that they could explain the particular

provisions to him, but could not represent him in any

way. Schaltenbrand did not deny this, but could not

recall what the attorneys had told him in this regard.

Deep also testified that the JAG office used the

“Legal Assistance Record” cards for both the legal

assistance program and the standards of conduct pro-

gram. He explained that the Air Force requires that

records be kept for both programs, and there is not a

separate form for the standards of conduct briefings.

Finally, he testified that although the form stated that

everything on the form would be confidential,

Schaltenbrand was never advised that any of the dis-

cussions that occurred after he filled out the form

Appendix - Page 24

|

would be confidential.

[8,9] The party invoking the attorney-client privi-

lege has the burden of proving that an attorney-client

relationship existed and that the particular communi-

cations were confidential. Jn re Grand Jury Proceed-

ings in Matter of Freeman, 708 F.2d 1571, 1575 (11th

Cir.1983). In order to show that communications made

to an attomey are within the privilege, it must be shown

that “the communication was made to him confiden-

tially, in his professional capacity, for the purpose of

securing legal advice or assistance.” United States v.

Ponder, 475 F.2d 37, 39 (Sth Cir.1973). “The key

question in determining the existence of a privileged

communication is ‘whether the client reasonably un-

derstood the conference to be confidential.’” Kevlik v.

Goldstein, 724 F.2d 844, 849 (1st Cir.1984) (quoting

McCormick on Evidence, § 91 at 189 (1972)).

[10] In this case, it appears that Schaltenbrand

intended to make his communications confidentially

for the purpose of securing legal advice. Whether or

not the attorneys were acting in their “professional

Appendix - Page 25

SE eer nee

capacity” for purposes of the attorney-client privilege,

however, is a more difficult question. In its order

denying Schaltenbrand’s motion to exclude evidence,

the district court stated that “the communications that

transpired between Mr. Deeb [sic] and defendant were

in Mr. Deeb’s [sic] capacity as a Deputy Counselor

under Regulation 30.30 and not in the capacity of an

attorney giving legal advice through the Legal Assis-

tance Program. . . “ The record reveals that Deep

testified that he had informed Schaltenbrand of this

circumstance. According to the record, Schaltenbrand

did not deny this, but only stated that he did not

remember. Thus, the district court’s determination that

Deep was acting as a Deputy Counselor was not clearly

erroneous.

Although we accept as true the fact that Deep was

acting as a Deputy Counselor and not an attorney

advisor, this does not answer the question of law as to

whether a communication to a Deputy Counselor can

be within the attorney-client privilege. We conclude

that in this case Schaltenbrand’s communications were

Appendix - Page 26

)

privileged. Schaltenbrand came to the JAG office

seeking legal advice. He filled out a card which de-

scribed him as a client and described the attorneys as

his lawyers. The attorneys spent approximately an

hour answering his questions and explaining and inter-

preting statutes and regulations for him. In fact, Deep

testified that he told Schaltenbrand never to return to

the base in connection with any project he had worked

on while in the government. This statement was legal

advice. When Schaltenbrand asked specific questions

about what would happen if he took a job after leaving

the Air Force, he was told that he would have to find his

own attorney because the JAG attorneys could not

represent him. This reasonably could have been inter-

preted as meaning that Air Force attorneys could not

represent him once he was no longer in the Air Force.

We therefore reject the government’s argument that a

reasonable non-lawyer would understand the legal

significance of speaking to a standards of conduct

counselor as opposed to an attomey advisor about

matters deemed “privileged” on the government’s own

Appendix - Page 27

form. A contrary result certainly would inhibit other

members of the Air Force from seeking the advice of

JAG attorneys in order to avoid conflicts of interest.

[11] Despite our holding that the testimony of Deep

and Shutter was protected by the attorney-client privi-

lege, we conclude that the district court’s admission of

this evidence was harmless error. At trial before the

jury, the government called several witnesses who

testified about Schaltenbrand’s conduct. Witness

McPherson testified as to Schaltenbrand’s role in the

Mexican Project and the dates of his involvement.

Witness Hamlin testified as to Schaltenbrand’s Air

Force status on the particular dates in question (i.e.,

active duty, inactive duty, etc.). Witness White testified

about Schaltenbrand’s role in the Mexican Project and

also about his role at the November 4 meeting. Witness

Pounds discussed the status of the contract on the

various dates at issue. Witness Timmons testified about

Schaltenbrand’s dealings with TBE, discussing both

Schaltenbrand’s conduct and that of TBE. .

After Timmons’s testimony, the jury was dismissed,

Appendix - Page 28

and the parties entered into a number of stipulations

before submitting the case to the court for decision.

The stipulations dealt with the dates Schaltenbrand

received his offer, accepted his offer, and began work.

The stipulations also discussed Schaltenbrand’s role at

the November 4 meeting, and the role of Dale Weaver.

The only evidence in the entire trial having to do with

Schaltenbrand’s meeting with Deep and Shutter is one

Stipulation that Deep and Shutter informed

Schaltenbrand not to return to the Air Force base on any

project he worked on for the Air Force. This stipulation

did not relate to Schaltenbrand’s guilt or innocence on

the charges of “negotiating” or making an “appear-

ance,” but rather was only relevant to his defense of

attorney-client privilege. Because we find that the

admission of the privileged information was not rel-

evant to the charges, and because of the overwhelming

testimony by other witnesses, we hold that the admis-

sion was harmless error.

4Schaltenbrand also suggests, relying on United States

v. Morrison, 449 U.S. 361, 101 S. Ct. 665, 66 L. Ed. 2d 564

(1981), and United States v. Levy,577 F.2d 200 (3d Cir.1978),

Appendix - Page 29

CONCLUSION

In accordance with the above discussion, we AF-

FIRM the conviction for Count I. We REVERSE the

conviction for Count II, direct entry of acquittal, and

VACATE the sentence imposed as to that count.

that the indictment should have been dismissed based on

communications by the JAG attorneys to government

investigators that were not admitted into evidence at trial.

Those cases involved sixth amendment violations and are

inapposite here.

Appendix - Page 30

(i eeeaeeiedieeeenetin

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF GEORGIA

MACON DIVISION

UNITED STATES | CRIMINAL NO.

OF AMERICA | 89-11-MAC (WDO)

Plaintiff

VS. | VIOLATIONS:

|

EUGENE DONALD | 18 U.S.C. 208(a)

SCHALTENBRAND | 18U.S.C. 207 (a)

Defendant

Excerpt from Transcript Pages 186-188

THE COURT: Well, of course, ladies and gentlemen,

it’s this Court’s responsibility to enforce the laws as

passed by Congress. Congress doesn’t give the Court

the authority to deviate from those laws; to be sympa-

thetic with those who transgress the law and are charged

with violating the law, or to do anything else other than

enforce the law.

What does the law say? If we look at the first

Appendix - Page 31

-

charge concerning negotiating for prospective em-

ployment, Congress said, “Except as permitted by

Subsection (b).” And if you look at Subsection (b), it

says that this law doesn’t apply if the officer or the

employee first advises the government official respon-

sible for appointment to his position of the nature and

circumstances of what he’s doing. So, there’s an out.

All you’ve got to do is read the law, tell the Govern-

ment what you’re about to do and if you get the

approval as contemplated, you do not subject yourself

to what Congress has prohibited. But, of course, in this

instance, that wasn’t done. So, that exception doesn’t

apply and we continue to read the law, and it says,

“Whoever,” it means anybody; nobody is excepted, me

or you or anybody else, “being an officer or employee

of the Executive Branch,” and, of course, clearly in this

case, the evidence discloses that the Defendant

Schaltenbrand was an officer of the Executive Branch

Appendix - Page 32

of the United States. Now, you can dig in the regula-

tions and find out what kind of officer he was; there are

many, many different kinds, for pay purposes, retire-

ment purposes, lot of other purposes, but the fact

remains that the term “officer” encompasses all of

those such persons. So, he is an officer. Sometimes he

was in an active duty status; sometimes in an inactive

duty status, but at all times, the evidence shows the

defendant, by serving, was receiving benefits, either

monetarily or for retirement purposes, from the United

States, and was acting with the authority of the United

States. And then it goes on to say, “participates person-

ally and substantially as aGovernment officer through,”

and then it’s got different ways you can participate,

“recommendation, the rendering of advice or investi-

gation.” The facts show that as a Government officer,

the defendant participated both personally and sub-

stantially; be made recommendations; the evidence

Appendix - Page 33

shows his advice was sou ght and rendered and he made

investigations concerning the contract that was under

consideration as between the United States and Tele-

dyne Brown. And then it goes on to say, “that any

organization with whom he is negotiating concerning

prospective employment has a financial interest.”

There’s much argument about the term “negotiating.”

The Court, if this were a Jury trial, would explain to the

jurors that that term is used in its everyday commonsense

form. Negotiate is simply to converse with somebody

else; carry o= a conversation about something that you

hope to do or intend to do. It’s not a technical, legal

term. Congress did not try to say that you could go

down a narrow path and be guilty of violating the law,

and you can down another narrow path and not be

guilty of violating the law. This is a broad terminology

intending to cover discussions concerning prospective

employment, not a job you’ve already got; prospect,

Appendix - Page 34

the prospect of being an employee. And what could be

more of a negotiation than visiting the home office in

Huntsville, Alabama of Teledyne Brown, talking with

them and submitting a written application for a job?

In the Court’s best judgment, the evidence shows

beyond a reasonable doubt as to the first count, consis-

tent with the statute as I have just explained it to you,

that the Defendant Schaltenbrand is guilty of the

charges.

Appendix - Page 35

|

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

FILED

U.S. COURT of APPEALS

ELEVENTH CIRCUIT

No. 90-8228

AUG 7, 1991

MIGUEL J. CORTES

UNITED STATES OF AMERICA, CLERK

Plaintiff-Appellee,

versus

EUGENE DONALD SCHALTENBRAND,

Defendant-Appellant

On Appeal from the United States District Court for

the Middle District of Georgia

ON PETITION(S) FOR REHEARING AND

ESTION FR ARING ENBAN

(Opinion May 13,1991, 11th Cir, 19___,

F.2d ).

Appendix - Page 36

|

Before: TJOFLAT, Chief Judge, KRAVITCH, Circuit

Judge, and GODBOLD, Senior Circuit Judge.

PER CURIAM:

[x] The Petition(s) for Rehearing are DENIED and no

member of this panel or other Judge in regular active

service on the Court having requested that the Court be

polled on rehearing en banc (Rule 35, Federal rules of

Appellate Procedure; Eleventh Circuit Rule 35-5), the

Suggestion(s) of Rehearing En Banc are DENIED.

[ ] The Petition(s) for Rehearing are DENIED and the

Court having been polled at the request of one of the

members of the Court and a majority of the Circuit

Judges who are in regular active service not having

voted in favor of it (Rule 35, Federal Rules of Appellate

Procedure; Eleventh Circuit Rule 35-5), the

Suggestion(s) of Rehearing En Banc are also DE-

NIED.

Appendix - Page 37

{ } A member of the Court in active service having

requested a poll on the reconsideration of this cause en

banc, anda majority of the judges in active service not

having voted in favor of it, Rehearing En Banc is

DENIED.

ENTERED FOR THE COURT:

Phyllis Kravitch

UNITED STATES CIRCUIT JUDGE

ORD-42

(9/90)

Appendix - Page 38