Petition for Writ of Certiorari — Brown v. United States

Supreme Court brief1985

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QUESTIONS PRESENTED

te whether the intent of the Con-

gress in formulating the 18 U.S.C. 208

Conflict of Interest standards was to

establish a de minimis guideline in

Section 208(b) to preclude prosecutorial

application to:

(a) acts in which the financial

interest of the government official is

"not so substantial as to be deemed

likely to affect the integrity of the

services which the Government may expect

from such officer;" and

financial

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interest is "too remote or too inconse-

gquential to affect the integrity of Gov-

ernment officers' or employees' services;

in consonance with the direction

accorded and exceptions to an offense

noted in 18 U.S.C. 208(b)?

2. Whether there is a "Substantial

financial interest" as applied in the

statutory provisions of 18 U.S.C. 208(a)

sufficient to sustain a conviction for

conflict of interest when no profit

motive is involved and no profit is re-

ceived in a minor transaction between a

Naval officer and the Navy or any Govern-

ment Officer and the Government in a pro-

curement initiative designed to generate

a substantial return on investment to the

Government and for which such return is

achieved and officially cited as having

"sontributed directly to the personnel

Stability upon which the overali combat

readiness of the U.S Navy must depend."

3. Whether the determination of

receipt of "anything of vaiue for

himself" as a required element for the

iat isi sisters nihciraeinoen

iii

violation asserted in 18 U.S.C. 201(g) in

defining acceptance of a gratuity is in-

tended to include reimbursement of ex-

penses for materials and resources em-

ployed in support of a Government project

which produces economic benefits to the

Government and for which no profit or

financial gain accrued to the individual?

4, Whether the acceptance of

reimbursement for out-of-pocket expenses

by a Government officer in support of an

official act is a per se violation of the

statutory provisions of 18 U.S.C 201(g)

against "accepting anything of value for

himself" when the transaction does not

involve personal profit or gain?

>. Whether there is a distinction

between "payment for services with

DANA eet DL bA ute ite a “

beneficial gain to the individual" and

"reimbursement for project related expen-

ses when no beneficial gain accrues” in

Gefining “receipt of a thing of value" as

a violation of the statutory provisions

against acceptance of a gratuity under 18

U.S.C. 201(g).

6. Whether a District Court charge

to the jury explaining the gratuity sta-

tute under 18 U.S.C. 201(g) in response

tc a written question from the jury is

improper where not supported by the evi-

dence or where it incorrectly states the

law as proscribing receipt of the alleged

gratuity "as a result of" an official

duty aS opposed to the statutory provi-

Sion "for, because of, or in exchange

for" an official duty leading the jury to

the only possible technical conclusion

J &, “

AN OS OEE | REE Oe ee A he

that any type of contractual arrangement

between a Government officer and an

individual in which reimbursement is

involved while performing an official act

is a statutory violation?

7. Whether a conviction for an

alleged violation of 18 U.S.C. 201(g),

accepting a gratuity, can stand where

there is absolutely no evidence that

defendant performed any "official act

for, because of, or in exchange for" any

unlawful compensation?

8, Whether the Federal Courts of

the United States, in violation of the

due process requirements of the Consti-

tution, are permitted to affirm a

conviction based upon a fact situation

that is clearly not true and not

supported by the record of the trial and

by assigning to the defendant admissions

of guilt that did not occur as to ele-

ments of the charges?

| 9. Whether the holding of the

United States Court of Appeals for the

Ninth Circuit that "when charged under 18

U.S.C. 201(c), a defendant is on notice

that he must defend against the lesser-

included offense defined in section

201(g)" as asserted in United States v.

| Raborn, 575 F.2d 988 (1978) is substan-

tial and intended to permit the Govern-

ment to employ such precedent so as to

manipulate the adversarial process to

obtain a conviction against an unknowing

defendant and whether this is considered

Justice in the spirit of the law?

eee eT

vii

10. Whether the conviction by a lay

jury unfamiliar with military operations

of an officer in the Armed Forces who ex-

plicitly conforms to the direction of his

superior officers in performing a joint

commercial-military operation can be up-

held when a violation of those orders

would result in serious contractual con-

sequences for the Government and poten-

tial charges against the officer and when

such direction would not be construed in

a military proceeding as a statutory

violation.

viii

TABLE OF CONTENTS

sadie@ Of Buthorwities . «. «+ s = » @ 6 xi

; Opinions Below. .« »s«eee ees

@UP2BGICtIONn « «© e © e@ we ow we

Constitutional Provision Involved

statutes involved .«+.+*ssestees

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Statement of the CAGG .« s+ « « e@ 2 2

Reasons for Granting the Writ... 30

1. The decision below has caused a

split of authority in the cir-

cuits resulting in inconsistent

precedent with respect to the

| guidelines of applying the lesser

/ included offense of accepting a

gratuity under 18 U.S.C. 201(g)

when the original charge is brib-

ery under 18 U.S.C. 201(¢c) and

with respect to avoiding the

judicial danger of fostering a

compromise verdict by present-

ing both charges of bribery and

gratuity to the jury contrary

to the interest of justice and

Constitutional due process... 30

2. Precedent has been generated by

the case in point that broadens

the application of 18 U.S.C 201,

on conflict of interest, to

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ate PUD tL AMMEN WALI Tek Ubi

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ner a Ba ed ethno ini

encompass virtually any transac-

tion between a Government officer

and the Government in which the

officer is personally involved,

even when there is no personal

profit and the Government rea-

lizes a significant economic

ke - £6. 6 € © 6 8 + « © 8

The decision below affects the

relationships between all govern-

ment employees and the commercial

sector such that efficiency and

initiatives to enhance economic

benefits to the Government will

be suppressed out of fear to

take any innovative action lest

the individual be charged and

convicted of the slightest tech-

nical violation of the statutory

provisions of 18 U.S.C. 201(g)

and 18 U.S.C. 208(a) as inter-

preted by a prosecutor and at

Mae Ga@erection « « © «© © «© © « «

Contrary to the Constitutional

provision asserted in the Fifth

Amendment providing for due pro-

cess of law, the United States

Court of Appeals for the Fourth

Circuit affirmed convictions

for acceptance of a gratuity

and for conflict of interest

based on erroneous assertions

that the Defendant had conceded

the elements of guilt, had pro-

fited on transactions with the

Government and had undercharged

a motion picture company for

flight hours flown violating

weer carte DMT Br Sa

Ae th ie ARLES NehAh ee P tihe AE Ratna

ekiewk

Navy directives when the trial

record is absolutely void of

substantiation and presents

undisputed and overwhelming

evidence to the contrary . .

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Conclusion .

eS en ee ee es ee 65

VOLUME II - APPENDIX

Appendix A

Appendix B

Appendix C

VOLUME III -

Appendix D

Appendix &

Appendix F

Opinion and Judgment

of the United States

Court of Appeals for

the Fourth Circuit. . la

Order of the United

States Court of

Appeals for the

Fourth Circuit

Denying Rehearing... 19a

Petition for Rehearing

en banc by the United

States Court of

Appeals for the

Fourth Circuit .... 2ia

APPENDIX

Report of the United

States Navy Board of

Inquiry convened in

the case of Commander

Emory Worth Brown,dJr. . 99a

Constitutional and

Statutory Provisions . 1i4a

Official Reports of

Officer Fitness ... . 120a

TABLE OF AUTHORITIES

CASES CITED Page

Grassetti v. Weinberger,

408 F.Supp 142 (N.D.C. 1976) ... 4Q

United States v. Brewster,

SUG FeaG@ Ole O86 & se oe oe 6 ee oe ops

38,39

United States v. Conlon,

481 F.Supp. 654, 667 RR?

1979) rs eae eee ae a ee

United States v. Harary,

457 F.2d Loa # 477 . @ . . . . . . ~ 34,35

United States v. Evans,

572 F.2d 455, 480 (5th Cir.) cert.

denied, 439 U.S. 870 (1978) .... 55

United States v. Raborn,

575 F.2d 688 (9th cir. 1978). ... 42

STATUTES CITED

176 U.3.0. 201fe) . 61 se hs se we es Ay

30,3

47,60

- Sue

26,30

38,47

168 U.S.C. 201(g) . .

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;

xii

STATUTES CITED (continued)

18 U.S.C. 208(a) . 2. . ws.

176 U.S.C. 2OG(B) . ss 6 2 0 ts 6 eo MGT

28 U.S.C. VT258(1) « « ane 2 6 0 8 2 2

28 U.S.C. 1291 . . - . . + . . . . . 2

OTHER AUTHORITIES CITED

Perkins, The New Federal Conflict

of Interest Law, 76 Harvard Law

Review 113, 1135 (1963) ..... .50,55

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1964

No. 84-

Emory Worth Brown, Jr., Petitioner

Vv.

United States of America, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT -@F APPEALS

FOR THE FOURTH CIRCUIT

Petioner, Emory Worth Brown, Jdr.,

petitions this Court for a writ of

certiorari to review the Judgment and

Decision of the United States Court of

Appeals for the Fourth Circuit affirming

the judgment of conviction against the

Petitioner.

OPINIONS BELOW

The Opinion of Court of Appeals was

entered on 2 August 1984 (A. ia). Peti-

tioner's Petition for Rehearing was de-

nied on 21 September 1984 (A. 19a). No

Opinion of the District Court ensued.

JURISDICTION

The jurisdiction of this Court is in-

voked under Title 28, United States Code,

Section 1254(1) and Section 1291.

CONSTITUTION PROVISION INVOLVED

U. S. Constitution, Amendment V:

Nor shall any person ... be de-

prived of life, liberty, or property,

without due process of law...

STATUTES INVOLVED

Title 18, United States Code:

201. Bribery of public officials

ficial ... directly or indirectly,

corruptly asks, demands, exacts,

solicits, seeks, accepts, receives, or

agrees to receive anything of value

for himself or for any other person or

entity, in return for:

(1) being influenced in his

performance of any official act;

Shall be fined not more than

$20,000 ... or imprisoned for not more

than fifteen years, or both, and may

be disqualified from holding any

office of honor, trust, or profit

under the United States.

(g) Whpever, being a public

official ...’ otherwise than as pro-

vided by law for the proper discharge

of official duty, directly or indi-

rectly asks, demands, exacts, soli-

cits, seeks, accepts, receives, or

agrees to receive anything of value

for himself for or because of any

official acts performed or to be

performed by him;

Shall be fined not more than

$10,000 or imprisoned for not more

than two years, or both.

Title 18 United States Code:

208. Acts affecting a personal

financial interest.

(a) Except as permitted by sub-

section (b) hereof, whoever, being an

officer ... of the executive branch

-».- participates personally and sub-

stantially as a Government officer ...

through decision, approval, ... ren-

dering of advice, investigation, or

otherwise in a judicial or other

proceeding ... or other particular

matter in which he ... has a financial

interest - 2

Shall be fined not more than

$10,000, or imprisoned not more than

two years, or both.

(b) Subsection (a) hereof shall

not apply (1) if the officer ... first

advises the Government official re-

sponsible for appointment to his posi-

tion of the nature and circumstances

of the ... proceeding ... or other

particular matter and receives in

advance a written determination made

by such official that the interest is

not so substantial as to be deemed

likely to affect the integrity of the

services which the Government may

expect from such officer ... or (2)

if, by general rule or regulation

published in the Federal Register, the

financial interest has been exempted

from the requirements of clause (1)

hereof as being too remote or too

inconsequential to affect the integ-

rity of Government officers' or

employees’ services.

STATEMENT OF THE CASE

This case presents issues of first

impression before this Court with respect

to statutory provisions on accepting a

gratuity and conflict of interest under

168 U.S.C. 201(g) and 208(a).

Petitioner was convicted of one count

of accepting a gratuity as a lesser in-

cluded offense of 18 U.S.C. 201 and of

three counts of conflict of interest un-

der 18 U.S.C. 208. Of particular note is

the substantial denial of Constitutional

due process in this action which broadens

standards applied to gratuity and con-

flict of interest to encompass reimburse-

ment of expenses without personal gain as

a gratuity and nonprofit transactions for

which the Government gained extensive

benefit as a conflict of interest.

Complexity of the case mandates

detailed development of individual seg-

ments and focus on Navy objectives during

the timeframe of the acts for which

charges were uitimately filed.

Mie

Petitioner is a Naval officer tried in

Federal Court rather than before a Navy

tribunal because of civilian association

in a joint Navy and private movie pro-

ject. No civilian was ever charged in the

case. After trial, a Navy Board of Inqui-

ry convened to evaluate findings as to the

officer. After three months of hearings,

the Navy Board exonerated him of charges

of accepting a gratuity and conflict of

interest for which he had been convicted,

in effect ratifying his actions. The Navy

tribunal asserted that he:

did not benefit personally from the

sale of hatch cover tables, for which

he was convicted of conflict of inte-

rest ... with regard to the conviction

of accepting a gratuity, evidence sup-

ported the argument that money provid-

ed to (him) was in payment for expen-

ses incurred in behalf of the squadron

and the movie company ... the payment

in no way constituted a gratuity.

The Navy Board asserted that the FBI

and NIS reports, which "were the basis for

the Government's case," were:

in the absence of other evidence, very

damning of (him) but when considered

with all the relevant facts in the

case, the Board found these investiga-

tions filled with unsubstantiated al-

legations, many of which were based on

rumor and innuendo rather than good

objective evidence.

The Navy from 1978 to 1980 was under-

manned and facing morale problems. Offi-

cial Naval Operations objectives, which

served as direction for the Petitioner as

Commanding Officer of a fighter squadron,

were set forth in a "Memorandum for all

Flag Officers, Unit Commanders, Command-

ing Officers and Officers in Charge" dat-

ed 11 December 1979. Navy objectives

applicable to the instant case are:

-..- Many objectives are carryovers. A

common theme running through all is

the need to run the Navy right, so we

attract and retain talented officers

and petty officers, and use our scarce

resources to the best possible effect

against an increasingly capable Soviet

Navy. I have deliberately limited the

objectives to those which I consider

warrant personal attention of the

Navy's uniformed leadership:

CNO-1: Continue pressure toward re-

solution of the retention problem. ...

our results are unacceptably below

goals. Manning up the Navy must re-

main our highest order of priority.

-+» Keep the attention of the entire

chain-of-command focused on the re-

tention problem ... participate

aggressively ... work aggressively.

CNO-4: Provide emphasis on people

programs requiring special attention

-e- Continue to improve habitability

for shipboard personnel ... Continue

to pursue additional resources to fund

our personnel support programs (such

as morale ...).

CNO-7: Improve perceptions of the Na-

vy .-. objectives listed below are all

important in their own right. At the

same time they collaterally contribute

to others’ impression that the Navy

Knows where it is going, and is pro-

ceeding there in a sensible manner ...

Keep improving the appearance of our

people and installations ... Further

improve base appearance to "look like

the first class Navy that we are."

/s/ T. B. Heyward

Admiral, U.S. Navy

Chief-of-Naval-Operations

Petitioner was Commanding Officer of

VF-84, a fighter squadron embarked in USS

NIMITZ and assigned when disembarked to

Naval Air Station Oceana, Virginia. In

1978, he arranged with movie producer Pe-

ter Douglas and the Navy for a major fea-

ture length film developed around his Air

Wing and the NIMITZ. The Navy eagerly

accepted the proposal asserting that the

movie would be of great benefit to Navy

recruiting and retention objectives:

VF-84 solicited Commander Naval Air

Force, Atlantic Fleet involvement in

the filming of the major motion pic-

ture "The Final Countdown" and dedi-

cated extraordinary effort towards di-

recting, coordinating and flying aer-

ial scenes. This CNO Sponsored Pro-

ject will be the most outstanding Navy

Recruiting Instrument in recent times

and will be seen woridwide. Squadron

participation in the film is a major

factor in retention and recruiting.

(Atlantic Fleet Golden Anchor

Award under signature of Com-

mander-in-Chief, Atlantic Fleet)

As the project developed, Petitioner

took responsibility for rewriting the

script, coordinating aerial photography

— - . - - ee ee Oe ee Oe ee . re ee ee ee Se me ee met ee ee ee ee ee ee ee

and flying the F-14 photo plane. The

aerials were filmed during a three week

period in June 1979 at Key West.

The Navy and the production company

agreed to a specified amount of F-14 time

to be charged to the film at a rate of

$4,000 per hour. An escrow fund was es-

tablished to cover those flights, the

flights of other support aircraft and ad-

ministrative costs. The F-14 allocation

was set at 30 hours by the Navy movie

project officer and the Commander, Naval

Air Forces, Atlantic Fleet.

Petitioner deployed one half of his

squadron to Key West taking six airplanes

from Oceana. In a dedicated effort to

remain within budget constraints, he di-

rected that his squadron pilots account

for the specific flight time that was

actually involved in the movie and sepa-

rately for all other flight time that

would be justified as pilot combat read-

iness training. He timed the aerial

scenes each night as the film from the

previous day was reviewed. When diffi-

culties with equipment, expertise and

inexperience forced additional shooting,

he sent an official Naval message to his

commander requesting authority to extend

the movie flight hour allocation from 30

to 35 with a 65 hour training extension.

Authorization was granted by Naval

message. He subsequently reported 32.5

flight hours dedicated to the movie.

Total flight time during the three

week project was approximately 150 hours,

including: cross-country flights between

Oceana and Key West required for transit

of fighters to and from the project site;

exchange of aircraft daily between Oceana

and Key West for maintenance and crew

rotation; weather reconnaissance; combat

readiness training; and pilot proficien-

cy. Flight time between Oceana and Key

West one way was 2.4 hours. Had transit

flights been chargeable to the production,

the transfer of the six aircraft required

for training and movie support to and from

the site only one time would have totaily

displaced the 30 hour allocation with no

time left for filming.

Petitioner was simultaneously tasked

to prepare his squadron for imminent

departure onboard USS NIMITZ in July for

training and a nine month deployment to

the Mediterranean and the Indian Ocean in

September. As the movie was by necessity

executed in addition to basic requirements

of the squadron training plan, all pilots

were exposed to training requirements

concurrent with movie operations.

As coordinator for the aerial filming

and as squadron Commander responsible for

the combat readiness and morale of his men

and the public image of the Navy, Peti-

tioner upgraded the appearance and habita-

bility of his spaces onboard USS NIMITZ

and at the Naval Air Station in accordance

with CNO objectives. His actions in pre-

paration for fiiming at both sites were,

by arrangement with the producer, to be

reimbursed at cost as was other direct

project support. Petitioner expended his

own funds in execution of this support and

upon completion of filming and immediately

prior to embarkation aboard NIMITZ, the

producer presented to him a check for

$5,563.48 to cover expenses. In return,

Petitioner presented to the producer a

form specifying materials similar to those

were used in reconditioning squadron spa-

ces to an amount estimated at the total

cost outlays he had made for the pro-

ject. The form was not a precise

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representation of itemized support, but

rather a hurried attempt to provide for

the producer a rough file record to ac-

count for expenditures. The exchange oc-

curred just before deployment and on the

day the production company was winding up

operations which by necessity accelerated

the transaction beyond normal routine.

Subsequently, while enroute to Spain

onboard NIMITZ, the Navy Cost Collector

advised Petitioner that the producer had

challenged certain administrative expen-

ses and directed that he identify any

expenditures associated with his squad-

ron. Petitioner briefed his Air Wing

Commander and the Captain of the NIMITZ

and obtained permission to send a tele-

gram to the producer advising him to hon-

or his payment obligation. Petitioner

asserted that the Navy had extended to the

producer benefits of use of an aircraft

carrier at no cost and of fighters at the

agreed allocation when charges could have

been significantly expanded had dedicated

accounting to separate training from movie

support not been applied. Petitioner and

the Captain of the NIMITZ were committed

to the Navy to minimize potential for ad-

verse publicity following a highly suc-

cessful movie effort and in anticipation

of a unique personnel recruiting film re-

lease. Both were concerned that the media

would misinterpret movie charges and re-

peat previously run articles denouncing

the use of cross country flying as offi-

cial training flights. Petitioner sent

the telegram via open Naval communications

channels and the Western Union. Petition-

er then responded to his direction from

the Commander, Naval Air Forces, to item-

ize expenditures. Upon arrival in Spain,

Petitioner called the Navy Cost Collector

to verify receipt of the correspondence

and advised him of the telegram to the

producer and of his expectation that logic

would prevail and payment of obligations

would follow.

Subsequently, the Government formed a

theory on circumstantial evidence devel-

oped with respect to flight hours flown,

receipt of the check and the telegram and

charged the Petitioner with bribery under

18 U.S.C. 201(c). The Government contend-

ed that the petitioner undercharged the

movie company for flight hours by not

charging all flight time during the three

week project; that the check from the pro-

ducer to the Petitioner was exchanged for

this action; and that the telegram was ex-

tortionary in support of the bribery alle-

gation. The only references made to the

telegram were those by the Petitioner to

the Navy Cost Collector and to the FBI

agent. The telegram could not be recov-

ered either by the Petitioner or the

Government and was not produced at trial.

Petitioner had continuously engaged in

self-help projects to upgrade squadron of-

fice and living spaces in support of Navy

objectives to improve moraie, public im-

age, Quality of life and habitability. His

official Reports of Officer Fitness docu-

ment his efforts and the physical recon-

ditioning of 75 percent of spaces at Naval

Air Station Oceana support the extensive-

ness of his personal involvement in the

self-help program. In particular, he

added nautical furnishings that he had

personally constructed or purchased to the

squadron spaces and to the office of the

Navy Career Counselor. As a weekend hobby

ne made hatch cover tables mostly for use

oy Naval units as departure gifts for

their commanders. Over a five year per-

iod, he made 21 hatch cover tables, six of

which were placed in his squadron.

In a special effort to create an en-

vironment to support the current recruit-

ing theme, Petitioner used his hatch cov-

er tables, nautical lamps and framed naut-

ical prints in the squadron. Exceptional

success of the effort was proven as his

squadron won the Atlantic Fleet Golden

Anchor Award for best personnel recruiting

and retention program in the Fleet:

This award attests to significant

achievements obtained through command

involvement, concern for individuals

and recognition of the priority asso-

ciated with retention efforts during

FY 1979. By attracting and retaining

quality personnel you have contribut-

ed directly to personnel stability

upon which the overall combat readi-

ness of the U.S. Navy must depend.

The Career Counselor's office is de-

Signed to support the Navy theme of

"It's not just a job, it’s an adven-

ture" through nautical decoration.

This office is considered to be the

most important facility in the

command and has been given the highest

priority in upgrade and rehabilitation

of squadron office spaces. The office

is spacious and is specifically laid

out to provide privacy and an atmo-

sphere of comfort in a nautical set-

ting that belies the tight "steel grey

ship compartation" characteristic of

the thoughts of our enlisted personnel

when they consider a future in the

Navy. A permanently built wood panel-

ed partition decorated with a large

"WELCOME ABOARD" ship plaque flanked

by brass ship's lanterns greets the

career candidate as he enters the of-

fice. ... he passes by old recruiting

posters framed in quality custom pic-

ture frames and enters a wood paneled

family room environment with two com-

fortable leather chairs, hatch cover

tables fashioned from hatches of old

liberty ships, nautical lamps and ar-

tifacts and framed prints from the

days of sail bracketed by candle scon-

ces. The nautical decor creates an

atmosphere that shows the pride asso-

ciated with the early days of seaman-

ship and instills in the career candi-

date a perspective on Navy life that

tends to break down conventional

barriers.

The Government charged the Petitioner

with seven counts of conflict of interest

for participating in the decision to pur-

chase six hatch cover tables and one nau-

tical lamp using Navy self-help funds.

—_ oor te wee

Four counts were in association with a

local merchant through whom tables had

been sold to the Navy; but the jury ac-

quitted on these counts based upon the

merchant's assertion at trial that the

payment received for the tables was ap-

plied in total toward payment of a sepa-

rate Navy account receivable for the

framed prints employed by Petitioner's

squadron. Petitioner had in fact con-

tributed the four tables to the Navy at

his own financial detriment without re-

imbursement even for cost of materials.

Petitioner was convicted of three

counts of conflict of interest for two

hatch cover tables and one nautical lamp

for which he contended he received only

cost of materials and no profit. His

conviction was affirmed on Appeal on the

basis of the FBI assertion that Petitioner

admitted he had made a profit, a statement

subsequently discredited under cross exam-

ination of the agent, by other trial tes-

timony and by the Navy Board.

The Government brought charges on sSix-

teen counts of theft of Government proper-

ty and false statements; however, the

Petitioner had properly and extensively

accounted for the subject matter and the

jury acquitted on all counts.

Investigation of the case had been

initiated in July 1980, one year after

completion of filming. Petitioner became

aware of the investigation in November

1980 while on special assigment to Saudi

Arabia and immediately upon his return to

the United States initiated an interview

with the FBI. He appeared without coun-

sel. The FBI statement with respect to

Petitioner's disclosures as to the case

BEST AVAILABLE COPY &

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generated by this interview was unsigned

and was subsequently and substantially

refuted. Petitioner presented names of

witnesses to corroborate his innocence to

the investigating agent, including: the

Captain of the NIMITZ; the squadron main-

tenance officer assigned to account for

movie related resources; the squadron

movie project officers most intimately

familiar with flight hour accounting

agreements; the Navy Public Works offi-

cial under whose auspices Petitioner's

space renovation projects had been devel-

oped over a ten year period; and the per-

sonnel who had specifically assisted in

upgrading squadron spaces in support of

the movie project. None were interviewed

by the Government. Petitioner also re-

quested a polygraph test to confirm his

assertions of innocence, but the Govern-

ment refused. During the next two years,

Government action on the case was essen-

tially dormant.

In October 1982, the Government noti-

fied counsel for the petitioner of intent

to pursue an indictment and entered into

plea negotiations with counsel. Petition-

er advised counsel that he would not ac-

cept plea arrangements and of his intent

to present his case before the Grand Jury

in an effort to preclude indictment. Pe-

titioner expressed extensive concern that

his father, who had been subjected to

neurosurgery, would not survive the trauma

of publicity accompanying an indictment.

Petitioner also had, after two years of

uncertainty during which his Naval career

was in effect terminated and his financial

resources depleted, reached a level of

despondency so evident to counsel that he

was advised to acquire psychiatric assist-

ance to preclude imminent suicide. On the

eve of the Grand Jury appearance, counsel

advised the Petitioner that: counsel could

not be present before the Grand Jury; the

conflict of interest statute was so word-

ed that the prosecution could gain an in-

dictment automatically; that there was no

defense to conflict of interest charges;

and that Petitioner would not be allowed

to present his version of the events, but

would only be allowed to respond to Gov-

ernment questions. Counsel then advised

Petitioner that the Government had nego-

tiated for a single count of conflict of

interest, contrary to the direction given

by the Petitioner against any plea agree-

ment, and that a decision would have to be

made in less than ten minutes. Counsel

asserted that he was not allowed to recom-

mend a course of action, but he left no

option and his guidance was firm that this

was the only way to preserve Petitioner's

father from exposure to adverse publicity

that would surely attach. Under the pres-

sure applied and the level of emotional

stress that prevailed, Petitioner elected

to terminate further damage. He accepted

the Government proffer to enter a guilty

plea to a single count of conflict of

interest under 18 U.S.C. 208(a). Of note,

counsel had never before defended in a

criminal case.

Petitioner entered the plea in Novem-

ber 1982, but the Court did not accept,

electing to take it under advisement. Pe-

titioner then withdrew the plea in January

1983, asserting his innocence. The Gov-

ernment, on 20 January 1983, presented

seventeen and seven count indictments in

two separate actions and renewed the con-

flict of tnterest charge subject of the

negotiated plea. That charge was then

dropped at trial to avoid an unresolvable

conflict of a bribery charge on the same

subject matter.

Petitioner was convicted of one count

of accepting a gratuity under 18 U.S.C.

201(g), a lesser included offense of the

bribery charge, and three counts of con-

flict of interest under 18 U.S.C 208(a)

with judgment entered on 26 May 1983. On

each of four counts, Petitioner was sen-

tenced to pay a $5,000 fine and to serve

one year in prison, incarceration sus-

pended, and to serve three years of pro-

bation. Appeal was noted to the Fourth

Circuit on 1 June 1983.

Subsequent to the District Court

Trial, the Secretary of the Navy directed

that a Board of Inquiry be convened as to

the Petitioner based upon his Federal

i at de

convictions. The Navy Board convened on

22 August 1983 and conducted evidentiary

hearings and deliberations until 7 Novem-

ber 1984. The Navy Board (A. 99a-113a)

asserted in part:

Commander Brown acmitted that he re-

ceived the check (the alleged gratui-

ty) from the company which produced

the movie 'The Final Countdown'. His

position was that he did receive the

check, but that he used it as reim-

bursement for his out-of-pocket expen-

ses in the production of the movie and

in the performance of his duties to

improve and maintain his squadron

spaces. ... The respondent stated that

he never realized any personal gain or

profit in any of the incidents and

never intended to make such gain. His

position was that his intentions were

always to improve morale of his per-

sonnel and readiness of his command

and to promote a good public image for

the Navy through the movie. Commander

Brown stated that he believed that un-

der the Navy Judicial System he would

not have been convicted because the

true nature of his intentions and re-

sponsibilities as a Commanding Officer

would have been understood. His posi-

tion was that the Federal convictions

were based on technical concepts of

violation of the law which did not

consider that he had unselfish motiva-

tions and made no personal gain. Com-

mander Brown denied any improper

intent in any documents or statements

which did not accurately reflect the

nature of expenditures and reimburse-

ment. He admitted inaccuracies, but

denied dishonesty. Commander Brown's

position was that he displayed the

highest levels of good leadership in

his unselfish and zealous devotion to

the welfare of his subordinates, the

combat readiness of the command and

the broader goals of the Navy. The

evidence presented to the board sup-

ported, in every instance, Commander

Brown's version of the events.

The board acknowledges that Commander

Brown engaged in questionable activi-

ties which were in violation of Navy

directives. However, it is believed

that Commander Brown is, basically, an

honest man who always acted in the

best interests of his subordinates and

unit organizations. There is no evi-

dence that Commander Brown profited

monetarily by his actions. By using

more orthodox procedures the same

beneficial results might have been

achieved but with much greater ex-

penditure of time and, possibly,

greater expense.

It is the opinion of the board that

the Executive Officer of VF-84, when

Commander Brown was Commanding Offi-

cer, and other officers senior to Com-

mander Brown in the chain of command,

did not follow a logical course of

corrective action as provided by the

guidelines of SECNAVINST 5370.2G, but

rather pursued a course of action that

ultimately allowed the matter of a

lack of inventory custody cards and

return of Navy property to the squad-

ron to develop into a case that de-

stroyed a front-running officer's ca-

reer and has the potential for need-

less adverse publicity to the Navy.

The case was argued before the Fourth

circuit on 8 March and affirmed on 2 Aug-

ust 1984 (A. ia-16a). A Petition for Re-

hearing (A. 21a-98a) noted on 17 August

was denied on 2) September 1984 (A. 19a-

20a). The Navy Board of Inquiry succeeded

the trial and was not addressed in brief,

nor presented before the Fourth Circuit

although the subject was addressed during

oral argument. The Navy Board heard 34

witnesses, including the NIMITZ Captain

and Air Wing Commander, who were unavail-

able for trial due to Navy commitments,

and 13 others who were at trial but not

permitted to testify, and reviewed 87 af-

fidavits among 167 evidentiary documents.

REASONS FOR GRANTING THE WRIT

iP The decision below has caused a

split of authority in the circuits re-

sulting in inconsistent precedent with

respect to the guidelines of applying the

lesser included offense of accepting a

gratuity under 18 U.S.C. 201(g) when the

original charge is that of bribery under

18 U.S.C. 201(¢c) and with respect to

avoiding the judicial danger of fostering

a compromise verdict by presenting both

charges of bribery and gratuity to the

jury contrary to the interest of justice

and Constitutional due process.

The indictment involved two separate

and distinctly opposed counts under 18

U.S.C. 201(c) and 208(a) on the subject

matter for which the Petitioner was ulti-

mately convicted of a lesser included of-

fense of accepting a gratuity, a dis-

tinctly different third theory under

201(g). Count one charged bribery under

168 U.S.C. 201(c)(1)s

--- being an officer ... of the Unit-

ed States Department of the Navy ...

corruptly did... receive ... a thing

of value, to wit: $5,563.48, in re-

turn for ... being infiuenced in the

performance of an official act in re-

spect to accounting for the number of

flight hours which should be charged

to ...- a private movie maker engaged

with ... Navy assistance in filming

the movie "The Final Countdown."

Count seventeen charged the Petition-

er with a violation of 16 U.S.C. 208(a)

involving the same subject matter:

.--being an officer ... of the United

States Department of the Navy ... un-

lawfully did participate personally

and substantially in the acquisition

of business worth in excess of $5,000

for Binnacle Enterprises from the As-

pen Production Company, a private

movie-maker engaged with the United

States Navy in the filming of "The

Final Countdown," then knowing that he

--» has financial interest in Binnacle

Enterprises.

The Government dropped count seventeen

to avoid the controverted theories and

conceded in opening statement that the

obribery theory was, at best, circumstan-

tial requiring the jury "to draw a reason-

able inference" of bribery. On testimony

of seven witnesses (A. 26a-554), including

the Commander, Naval Air Forces Atlantic

Fleet (A. 49a-55a) that Petitioner was

conforming explicitly to Navy direction to

charge the movie company no more than the

agreed upon 30 hour commitment and that

Petitioner officially requested and re-

ceived from his superior permission to

charge for an additional 2.5 hours (A.

30a-33a), the jury in acquittal absolutely

rejected the Government theory and found

as a fact that there was no bribery.

Accordingly, inasmuch as the Govern-

ment sought to prove a bribery case, and

only resorted to a lesser included offense

at the last moment to avoid certain defeat

on the bribery charge, the Government

failed to introduce proof into the record

of threshold evidence necessary to support

the gratuity charge.

Petitioner testified without dispute

and with extensive witness support that he

Nie ahs ea vera 9 eA ea eC add ais

received the check from the producer in

reimbursement for monies paid out of his

own pockets for improvement of Government

spaces and for support resources in con-

junction with the movie. He had been di-

rected to "cooperate fully" with the pro-

duction company and, in the absence of

other guidance, he provided all assistance

considered reasonable in his discretion as

squadron Commanding Officer including sup-

port payments for the film for which reim-

Dursement was anticipated and received.

There was absolutely no evidence that the

compensation was unlawful or paid for ser-

vices rendered or other than reimbursement

for expenses or that Petitioner realized a

profit. On the contrary, the record con-

tains undisputed evidence that Petitioner

used his own funds to pay for construction

of permanent fixtures that remain today in

Governhent spaces (A. 63a-83a).

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In United States v. Harary, 457 F.2d

471, 477, the D. C. Circuit held that:

If the court can conclude on the basis

of the evidence presented that no rea-

sonable man, weighing solely the evi-

dence in light of the applicable law,

could find the defendant guilty of the

lesser offense and at the same time

not guilty of the greater offense, no

disputed factual element could be

present which would compel the court

to give the lesser included offense

instruction. Accord United States v.

Brewster, 506 F.2d 62, 7e-73, n. 20.

A fortiori, where the record is such,

as in the instant case, that a finding of

not guilty by the jury as de the greater

offense of bribery leaves the record un-

contradicted as to the absence of any re-

maining evidence to Support the finding of

the lesser included offense of gratuity,

then Petitioner's conviction for accept-

ing a gratuity cannot stand on such

record. The Court ir Harary reversed the

conviction, inter alia, asserting that the

District Court should never have submitted

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to the jury both the bribery and gratuity

offenses, but only the bribery offense on

that record. Harary, at 480.

The Court in Brewster, stated:

j --+ proof on the element or ele-

ments differentiating the two crimes

(bribery and gratuity) must be suffi-

ciently in dispute so that the jury

may consistently find the defendant

innocent of the greater and guilty of

the lesser included offense." 506

F.2d 62 at 73-74, n. 26.

The Court denied the motion for Judg-

ment of Acquittal as to bribery and sub-

mitted both bribery and gratuity charges

to the jury. While the jury was deliber-

ating, the panel requested clarification

in writing regarding gratuity:

"Could the Court define the

essential elements contained in the

charge under count 1 in the lesser

charge of accepting a gratuity?"

The Court reviewed the first two ele-

ments as though they were conclusively

presumptive and then the third element:

The Government would have to prove

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beyond reasonable doubt that the de-

fendant was given money as a result of

the performance of an official act.

Said another way, that he performed a

duty as a Naval officer as required by

the Navy for him to do, and that as a

result of doing that which he was re-

quired to do, he was given the money

and he accepted it. Now remember that

the Government has the burden of prov-

ing by a preponderance of the evidence

-- by evidence which would establish

beyond reasonable doubt that element

as well as the other two elements of

that crime; that is, that the defen-

Gant was given the money as a result

of the performance of an official duty

that he was required to do or required

to perform as a Navy officer or that

he had been ordered to perform as a

Navy officer and that he accepted the

money. (emphasis added).

Petitioner objected to the charge and

the Court agreed that the original charge

as to the lesser included offense of gra-

tuity was "a little convoluted", but re-

fused to recharge the jury. Petitioner

submits that the original and supplemental

charges given the jury were not correct

statements of the applicable law and

failed to adequately distinguish between

bribery and gratuity. Further, a reading

of the charge clearly leaves no option for

lawful receipt of reimbursement of expens-

es or of any transaction between the Peti-

tioner and tHe movie company even with no

profit or personal gain. The interpreta-

tion given by the court to the check as

"something of value" and dismissed as a

conclusive presumption of fact left no

room for the jury to consider that "some-

thing of value" requires personal gain.

If there is no personal gain, as in cost

reimbursement in which only the Government

gained, the individual could not, by any

definition, have received something of

value for himself. The Court did not use

the term "reimbursement™ or acknowledge

potential for reimbursement as being out-

side of statutory provisions for violation

or distinguish between “reimbursement of

expenses" and "payment for services."

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The Brewster Court asserted that the

bribery and gratuity statute is not cited

"as

a model of clarity and nicely drawn

distinctions." 506 F.2d 62 at 78. Spec-

ifically, the Court wrote as if it had the

very case at bar in mind:

Where the statute does not cause great

difficulty for a trial judge, a diffi-

culty which we hold proved fatal to

the conviction in this case, is that

in addition to the problem of drawing

a distinction between one definable

offense and innocent conduct, where

both offenses are charged, a trial

judge must also draw the tripartite

distinction between conduct within the

defined intent to constitute an of-

fense under the bribery section (c),

conduct with the requisite intent to

constitute an offense under the gra-

tuity section (g), and conduct with an

intent which constitutes no offense at

all. The Trial Judge strove manfully

-- and judicially -- to make these

fine distinctions for the jury. Yet

we have found it difficult ourselves,

with adequate time to reflect and pon-

der, to understand the subtle distinc-

tions made in the written text of the

instructions. With the advantages of

time, a written text, and a modicum of

legal learning, we are doubtful if we

comprehend fully the Trial Court's ex-

planation of the subtle distinction

between guilty under one section,

guilt under the other, and total inno-

cence. We are certain the jury could

not possibly have discerned the boun-

dary lines on the basis of these in-

Structions, and this a jury must be

able to do in order to convict a de-

fendant on any charge. Id. at 78.

The Brewster Court found reversible

error in the charge of the District Court

even where the charge was as per the sta-

tutory language, which language exceeds in

clarity and correctness the vague and

confusing language of the instant Court.

Furthermore, the Brewster Court ad-

monished District Courts and prosecutors

in such bribery and gratuity cases to

carefully avoid the unique pitfalls pre-

sented by such bifurcated charges and

their invitation to juries to compromise:

A note of caution to the prosecu-

tion: In future cases before the

prosecution asks for charges to the

jury under both the bribery section

should be satisfied that the charge

proposed is designed to avoid the

pitfalls we have found here. The

prosecution might elect the safer

course of only going to the jury under

either the bribery section (¢) or

gratuity section (g), but not both.

The danger inherent in the situation

calling for the trial judge to dis-

tinguish sharply among guilt under the

bribery section, guilt under the gra-

tuity section, and innocence under

either or both, is that the jury is

Subconsciously tempted to compro-

mise. if the line between the greater

and lesser offense is muddy, if the

distinction between Knowingly accept-

ing an illegal gratuity and cheerfully

acknowledging a legitimate campaign

donation is dim, then why should not

the jury take the "middle ground",

i.e., find the defendant guilty of the

offense carrying the lesser penalty?

This may have happened here. A defen-

dant is entitled to more than a possi-

ble jury room compromise, he is en-

titled to have his guilt or innocence

voted up or down on the clearest pos-

hale lines of distinction. Id. at

The case at bar is a classic example

of a compromise sought and a compromise

gained as the Government charged the de-

fendant with seventeen major counts of

moral turpitude and "tacked on" seven

conflict of interest technical violations

Subsequent to a plea offer to a single

count of conflict of interest. Of par-

ticular note should be the difference in

exposure between the initial charge of

$10,000 fine and two years imprisonment

and the trial charges of $250,000 and 136

Years imprisonment. The Government had no

case from the outset or the plea negotia-

tions would have been more demanding. The

Government presented no valid evidence to

Support the major violations and with ex-

tensive witness assertions that Petitioner

had directed explicit accountability for

the items in question; that the Commander,

Naval Air Forces had been provided a de-

tailed inventory by the Petitioner; and

that all items were properly destined for

Government use, the jury rejected all al-

legations of moral turpitude conduct. In

each indictment, the jury elected to con-

vict only on the least substantial offense

in a classic representation of jury

: es ab aie am

we ee te

compromise - "Where there is so much

smoke, there must be some fire."

The Government proffere«u two opposite

theories with respect to the same subject

matter, bribery and conflict of interest,

and then submitted, in the last instant, a

third theory to salvage a conviction by a

compromise verdict. And the Government

relied upon United States v. Raborn, 575

F.2d 688 (9th cir. 1978), as precedent

allowing injection of the lesser included

offense theory without presentation of a

defense against the charge. Note the

trial record (Tr. 1048-1049) from the

fourth day of proceedings while Defendant

was under cross-examination:

Okay. Now, when you took the

five-thousand dollar check from

Peter Douglas, did you consider

that to be a gratuity?

Not in the slightest. It was

reimbursement to me for out-of-

pocket expenses.

Q: What is a gratuity? Do you know

what a gratuity is?

A: Yes, i know what a gratuity is.

Q: Would you tell us what --

MR. STANLEY SACKS: If Your Honor

please, I object to that. He's not

charged with accepting a gratuity.

he's charged with taking a bribe for

-- in exchange for a promise that he

would reduce flight hours illegally

and improperly. He's not on trial for

a gratuity. There's no statute that

makes it a criminal offense for him to

take a gratuity.

THE COURT: He's on cross examination.

MR. STANLEY SACKS: I understand, Your

Honor, but that can be misleading.

He's not charged with that.

THE COURT: I think it's within proper

bounds.

There was no indication by the Court

or the Government that a gratuity charge

was forthcoming or that it was a statutory

violation or that Defendant should be on

notice to defend against a gratuity

charge. While it may not be incumbent

upon the Court to provide notice, justice

is better served when the adversarial en-

counter does not prejudicially favor the

judicial power. Victory is pyrrhic when

gained at the cost of justice and empty

when achieved against no opposition. The

Court was not reasonably responsive to the

objection or to the issue.

The Fourth Circuit dismissed the issue

as to the jury charge and the potential

for a compromise without addressing the

salient point:

Viewed in total context of the origi-

nal instruction and the form of the

jury's request, and taking into ac-

count the discretion reposed in the

trial court, this supplemental in-

struction cannot be found prejudi-

cial. (A. 15a)

Petitioner respectfully submits that

the prejudicial effect of the erroneous

Supplemental charge cannot be dismissed as

within the "discretion reposed in the

Trial Court" and is actually heightened by

the fact that the jury expressed explicit

’

difficulty with this element c* the gra-

tuity charge and asked for clarifica-

tion. Where that clarification is an

incorrect statement of the law and is not

representative of the precise language of

the statute, the Government cannot claim

the Defendant was accorded a fair trial.

Petitioner respectfully submits that

the Fourth Circuit was confused by the

gratuity issue as indicated by the holding

(A. 14a) that there was:

.--Ssubstantial evidence to support the

inference that Brown did in fact

receive the check "for or because of"

either understating the number of

hours for which the producer would be

charged or gratuitously remaining

Silent when disclosure of this fact

was required by Naval regulations,

either of these being "official acts"

within the meaning of the statute.

Either of these "official acts" as

defined would have constituted bribery and

both were not in consonance with testimony

presented by the Commander, Naval Air

Forces Atlantic Fleet, and the Navy Cost

Collector who confirmed that flight hours

were not undercharged (A. 26a-55a). No

evidence appears to support an undercharge

of flight hours other than circumstantial

interpretation by the FBI agent. There

was no assertion that Defendant "remained

silent" or that "disclosure of this fact

was required by Naval regulations." On

the contrary, Defendant advised the Navy

Cost Collector by Naval message of flight

hour charges and obtained authorization.

Petitioner respectfully submits that

the sharply different precedent now es-

tablished between the Ninth and Fourth

Circuits convolutes the law further than

the previously acknowledged difficulties

in interpretation and application of the

Statutes. In the interest of Justice and

proper administration of the law, the

Court should take the compromise verdict

potential and the misapplication and mis-

interpretation of the law as presented in

the statutory provisions of 18 U.S.C. 201

under review. The Court should grant cer-

tiorari in order to clarify a statute of

central importance to the judicial system

and to afford the defendant his Constitu-

tional rights to a fair trial.

ee Precedent has been generated by

the case in point that broadens the appli-

cation of 18 U.S.C 208(a), the statute on

conflict of interest, to encompass vir-

tually any transaction between a Govern-

ment officer in which the officer is per-

sonally involved, even when there is no

personal profit and the Government

realizes a significant economic gain.

In formulating the 18 U.S.C. 208 Con-

flict of Interest standards, the Congress

added section 208(b) to provide guidelines

as to exemptions from the Act. The statu-

tory language is most significant:

(b) Subsection (a) hereof shall not

apply if ... the interest is not so

substantial as to be deemed likely to

affect the integrity of the services

which the Government may expect from

such officer ..., or (2) if ... the

financial interest has been exempted

from the requirements of clause (1)

hereof as being too remote or too

inconsequential to affect integrity of

Government officers' services.

Petitioner respectfully submits that

the intent of the Congress was to provide

de minimis connotation to the statute so

that a Government prosecutor would consid-

er diligently the status of the financial

interest involved in a transaction of con-

cern and employ sound prosecutorial dis-

cretion to reject an interest that is

remote, inconsequential or insubstantial.

Congressional intent is clearly to

prohibit financial arrangements between

the Government and agents which reasonably

can be expected to impact upon the objec-

tivity of honest and fair Government. The

Congress intended to exempt in the letter

and spirit of the statute insubstantial or

insignificant financial interests:

Although 208(a) prohibits a Government

employee from participating substan-

tially in a matter in which he has

any ‘financial interest', 208(b)

makes clear that insubstantial inte-

rests are to be exempted ... Assuming

that Congress intended to treat con-

sistently affiliations with a similar

potential for influencing an employ-

ee's integrity and impartiality, the

prohibitions in 208(a) related to em-

ployment should not be interpreted to

reach insubstantial contacts or con-

nections ... United States v. Conlon,

481 F. Supp. 654, 667 (E.D.C. 1979).

Grassetti v. Weinberger, 408 F. Supp.

142 (N.D.C. 1976) suggests that no con-

flict of interest existed within the

meaning of 18 U.S.C. 208 where the defen-

dants would not have benefitted finan-

cially or where the possibility of con-

flict of interest was too remote.

Commentators expert on 18 U.S.C. 208

have concluded that Congressional intent

was not to proscribe insubstantial, in-

Significant or remote financial interest:

aniline

It is unfortunate that the new Act

did not include the word "substan-

tial” immediately preceding "finan-

cial interest" in section 208. In

the absence of such a statutory tern,

essentially the same result can and

should be reached within the frame-

work of the exemptive provisions.

The most important provision is that

the interest be a substantial one -

meaning that the circumstances of

personal interest should raise the

possibility that a reasonable man

(not necessarily the particular offi-

cial) would in fact be affected in

his official judgment. Perkins, The

New Federal Conflict-of-Interest Law,

76 Harv. L. Rev. 1113, 1135 (1963).

The facts that Petitioner's connec-

tion with hatch cover tables was a hobby

interest, done almost completely on week-

ends; that involved the making of only 21

tables over a five year period, only a

few of which were sold; that Petitioner

did not profit from the sales and had ab-

solutely no financial interest in the re-

sults of any of these sales; that he nev-

er personally gained from any transac-

tions alleged in the counts of which he

was convicted; that the transactions in-

volved were for a cost that was one-fourth

of the fair market value of a hatch cover

table; and that a knowledgeable pthacse

testified that the tables could not even

be produced commercially for the cost

asserted, established beyond dispute that

Petitioner's conduct did not fall within

criminal prohibitions of 18 U.S.C. 208.

Petitioner respectfully submits that

the Congress could never have intended

that an individual may, with larcenous

intent, steal without excuse or justifi-

cation goods in the amount of $199.00 or

less on a Federal reservation and be

guilty of a mere misdemeanor, while a

Naval Commander could procure for his

fighter squadron at prices well below

market value and without profit two hatch

cover tables built as a weekend hobby and

a nautical lamp purchased commercially and

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be termed guilty of three felonies.

Petitioner employed his resources and

woodworking skills to enhance quality of

life of his squadron in direct accord with

Chief of Naval Operations objectives. He

was reimbursed for costs incurred on three

of seven pieces placed in his squadron and

gave the remainder gratis to the Navy.

The Fourth Circuit affirmed the con-

victions asserting that he had conceded

making a profit based on the testimony of

an FBI agent, which was circumstantial and

which was the only evidence of an alleged

profit presented at trial:

Q: And he told you that he made no

profit from them, didn't he?

A: At first he told me that.

Q: All right, sir.

A: Then he told me he did make a

profit.

Q: Well, the reason he told you, as

you say, that he made a profit is

that -=- well, who pointed out to

him that materials would not

count for the purchase price?

Who told him -- Well, "If you say

you didn't make a profit, your

giving materials doesn't count,"

who told him that.

A: I told him that.

Q: I direct your attention to page

-- well, it's page 12 of your

notes --

A: Uh-huh.

Q: -- at the top of the page. Your

notes are: "Commander Brown in-

dicated he got no profit from the

Sale of these tables, but when it

was pointed out that ma-terials

would not count for the purchase

price, he indicated that he

possibly made a profit on some of

the tables." Is that what

happened? (emphasis added).

A: That's correct.

This manipulation of facts and seman-

tics to create the illusion of a profit

does not comport to a concession as to

making a profit.

A transaction void of a personal fi-

nancial gain or a profit or a benefit to

the individual is not a "substantial

interest" as presented in 18 U.S.C 208.

The statutory language of 208(b) spe-

cifically addresses the substantiality of

the financial interest as to affect on

"the integrity of the services which the

Government may expect from such offi-

cer." Petitioner respectfully submits

that the Official Reports of Officer Fit-

ness appended (A. 120a-153a) attest to the

fact the integrity of the services by the

Government officer in this case has been

conclusively proven to be outside of that

intended as in violation of the statute

and that a closer review of a candidate

for prosecution is mandatory to preclude a

judicial indiscretion that could remove

the highly valued services of an officer

from the Government without cause.

The policy in creating and applying

the statute should be clear:

The policy objectives which underlie

conflict of interest laws include the

assurance of impartiality, fairness,

and equality of treatment toward those

dealing with the Government, the elim-

ination of private considerations in

public decisions, the efficient and

economical operation of Government,

the maintenance of public confidence

in Government, and the prevention of

the use of public office for private

gain. Perkins, The New Federal

Conflict-of-Interest Laws, 76 Harv. L.

Rev. 1113, 1118.

Petitioner respectfully submits that

the policy objectives presented and the

holding in United States v. Evans, 572

F.2d 455, 480 (5th cir.) that the purpose

of conflict of interest laws is to elimi-

nate clouded judgment by Government offi-

cers, preferential treatment, inefficient

management and the temptation to act con-

trary to the best interests of the Gov-

ernment are precisely on point and that

guidelines as to application of the law

should be defined to preclude prosecution

of a Government officer whose actions are

clearly favorable to the Government, are

cited as improving efficiency and as ex-

eceptionally meritorious resource manage-

ment and are of no personal gain.

The Petitioner respectfully submits

that review of the statutory provisions of

18 U.S.C. 208 is both necessary and

timely. Certiorari should be granted to

provide guidelines to the essentially un-

used conflict of interest provisions to

prevent misapplication, to foster proper

use of the statute and to enable the

Courts to execute the intent of the Con-

gress to maintain objectivity in honest

and fair Government.

3. The decision below affects the

relationships between all government em-

ployees and the commercial sector such

that efficiency and initiatives to enhance

economic benefits to the Government will

be suppressed out of fear to take any

innovative action lest the individual be

charged and convicted of the slightest

technical violation of the statutory

provisions of 18 U.S.C. 201(g) and 18

U.S.C. 208(a) as interpreted by a

prosecutor and at his discretion.

The instant case demonstrates clearly

the absolute de minimis transactions for

which charges can now be brought in Fed-

eral Court and the far reaches to which

the Government will extend in adversarial

practice in order to secure a conviction

under the statutory provisions of 18

U.S.C. 201(g) and 18 U.S.C 208(a).

The statutes are unfamiliar in public

use and are virtually untried. In the

instant case, they have been applied to

obtain convictions based on a scintilla of

circumstantial evidence when opposed by

overwhelming evidence of innocence. A

conviction for accepting a gratuity has

been applied to a Naval officer who fol-

lowed orders explicitly and conformed to

every requirement placed upon him to meet

contractual obligations and who received

no beneficial gain out of the transac-

tion. A conviction for conflict of

interest has been applied to an officer

who bestowed benefit upon the Government

in a transaction for which he received no

profit and had no financial interest.

Petitioner would urge the Court to

note that operational military commanders

and Government officers are called upon in

the field of combat and the decision arena

of Government to make the best use of

scarce resources, to employ their best

skills in meeting the demands placed upon

them by the Nation, and to produce with

maximum efficiency and effectiveness in an

environment that demands innovation. The

decisions rendered in the instant case as

to interpretation of the law will have

far-reaching consequences as those offi-

cers who must react with immediacy may not

for fear of possible technical violation

of a statute although logic would suggest

that their actions are proper.

Certiorari should be granted to estab-

lish precedent for operations of Govern-

ment decision officers to ensure that un-

warranted barriers to exercise of judi-

cious, prudent and logical courses of

action are not erected by fear of prose-

cution at the discretion of a Government

attorney through use of a statute that

could essentially be applied per se to

virtually any Government transaction.

4, Contrary to the Constitutional

provision asserted in the Fifth Amendment

providing for due process of law, the

Fourth Circuit affirmed convictions for

acceptance of a gratuity and for conflict

of interest based on erroneous assertions

that the Defendant had conceded the ele-

ments of guilt, profited on transactions

with the Government and had undercharged a

motion picture company for flight hours

flown violating Navy directives when the

trial record is absolutely void of

substantiation and presents undisputed and

overwhelming evidence to the contrary.

Petitioner respectfully submits that

any precedent of law established as to the

difficult and controversial application of

the statutory provisions of such potenti-

ally far reaching and dangerous concepts

as the gratuity and conflict of interest

issues under 18 U.S.C. 201 and 18 U.S.C

208 should not be based upon a case that

is frought with error, misinterpretation

and due process violation. The Petition

for Rehearing has been appended and anno-

tated with insertion of applicable ex-

cerpts from the record of trial to demon-

strate in detail the substantial error

involved. Brief analysis of one issue is

presented here to provide a basis for

granting certiorari.

The Opinion of the Fourth Circuit (A.

1a-18a) asserted that:

Ultimately, Brown submitted flight

hour records indicating that his

squadron had flown 32.5 hours. Ac-

cording to the testimony of Agent

O'Brien, however, Brown admitted that

he should have charged Douglas for 150

hours of flight time, so that his un-

derstatment of hours slighted the Navy

and benefitted the producer in an

amount on the order of $435,000. Fur-

thermore, the evidence showed that in

July 1979, when the producer and the

Navy were engaged in a dispute con-

cerning payment of certain administra-

tive expenses, Brown telegraphed Doug-

las urging him to pay promptly, since

failure to do so might lead to a Naval

inquest that might in turn disclose

that flight hours had been

underbilled.

On this evidence, Brown was convicted

under the bribery count, of the les-

ser included offense of illegally

accepting a gratuity in violation of

18 U.S.C. 201(g). (A. 6A).

As presented in the Petition for Re-

hearing (A. 26a-84a), Petitioner never

conceded that he "should have charged

Douglas for 150 hours of flight time." On

the contrary, direct orders from the Com-

mander, Naval Air Forces, as asserted in

his testimony, precluded the Petitioner

from charging in excess of the amount of

flight time agreed upon between the Navy

and the producer, that being 30 hours.

The testimony asserted that the separation

of charges for training and direct movie

Support were in consonance with his

guidance.

The statement of Agent O'Brien was

that "...he indicated that he -- he could

nave charged Mr. Douglas for at least a

hundred and fifty hours", which was in

fact a true statement, only cut short of

explaining that official direction was to

the contrary and that such charges were

improper. The Petitioner further advised

the agent that he was not authorized to

charge additional hours, that such a

charge would have been inappropriate as

most of the flight time was training and

cross country transit time routinely

required for pilot proficiency, and that

he had charged the movie company for those

hours specifically dedicated to the movie

and the remainder properly to training, in

accordance with his Navy direction and the

contractual obligations !etween the Navy

and the production company. His state-

ments were conclusively supported in the

trial testimony as presented in the

Petition for Rehearing (A. 21a-84a) and by

the "Navy inquest" (A. 99a-113a) referred

to in speculation by the Fourth Circuit.

As to the telegram, the Fourth Circuit

adjusted the date by two months to fit it

into the timeframe necessary to support

the circumstantial evidence speculated as

to the reasons for its transmission. The

telegram was not sent in consonance with

delivery of the check, but in response to

a cost account-ing for administrative

expenses. The Captain of the NIMITZ

Subsequently testified before the Navy

inquest that he had discussed the telegram

with the Petitioner and corroborated his

testimony in opposition to the testimony

of the FBI agent. Of particular note, the

Navy inquest asserted (A. 106a-107a) that:

The NIS and FBI investigations were the

basis for the Government's case against

Commander Brown. The board found these

two exhibits, in the absence of other

evidence, were very damning of (him).

However, when considered with all

relevant facts in the case, the board

found these investigations filled with

unsubstantiated allegations, many of

which were based on rumor and innuendo

rather than on good objective evidence.

Of note, the movie producer was never

charged with giving a gratuity which is of

some concern if he did indeed benefit

illegally to the extent of "$435,000" as

asserted by the Fourth Circuit.

Petitioner respectfully submits that

the precedent established by this case is

based on a decision absent justification

and that the Court should grant certiorari

to ensure that Constitutional due process

rights are upheld, that the law upon which

future decisions to prosecute and upon

which convictions removing the civil

rights of individuals will be based should

not be tainted.

CONCLUSION

In view of the inconsistencies between

the opinions of the Circuits as well as

the serious questions and far reaching

consequences presented, Petitioner urges

that this Court should grant a writ of

certiorari.

ORY WORTH B

Commander

United Stat Navy

, OR.

9211 MacSwain Place

Springfield, VA 22153

Petitioner, Pro Se

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