Opposition Brief — Dean v. United States

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(9 Supreme Court, U.S.

) FILED

No. 95-942 FEB 18 1996

: CLERK

In the Supreme Court of the Anited States

OCTOBER TERM, 1995

DEBORAH GORE DEAN, PETITIONER

UNITED STATES OF AMERICA, RESPONDENT

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

BRIEF IN OPPOSITION

LARRY D. THOMPSON

Independent Counsel

CHARLES ROTHFELD DIANNE J. SMITH

MICHAEL E. LACKEY, JR. Deputy Independent Counsel

Of Counsel

Office of Independent Counsel

444 North Capitol Street, N. W.

Suite 519

Washington, D.C. 20001

(202) 786-6681

QUESTIONS PRESENTED

1. Whether the court of appeals properly determined, on

the facts of this case, the scope of one object of several

multiple-object conspiracies.

2. Whether the court of appeals correctly held on the

record before it that petitioner received a fair trial and that

alleged instances of prosecutorial misconduct did not deny

petitioner due process.

(i)

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................ i

TABLE OF AUTHORITIES ................. ili

| I

ea be yy re ge tow ewes 4

I. PETITIONER’S FIRST QUESTION PRESENTED IS

PREMISED ON A MISREADING OF THE

EE a 4

A. THE COURT OF APPEALS HAD NO OCCASION TO

APPLY YATES TO THE CONSPIRACY COUNTS .. 4

B. THE COURT OF APPEALS PROPERLY APPLIED

SETTLED LAW TO THE FACTS OF THIS CASE .. 7

Il. PETITIONER’S DUE PROCESS CLAIM IS

Sa 10

I 17

iil

TABLE OF AUTHORITIES

Page

CASES

Braverman v. United States,

ee ee es ee a aia eae ee 5

Darden v. Wainwright

3 0 |. eae ee ee 11

Donnelly v. DeChristoforo,

Gee Wide WT OUP cece cer eewess 11, 12, 16

Griffin v. United States,

£8 8) | Bere rarer eee ree 9

Hubbard v. United States,

{oS Be Me. F000. ere ree .

United States v. Agurs,

ee ee EE ok ag wwe oheaa see ae 10

United States v. Ba oe

ay ee ee ED 4c w 0 coo 80 6 ow es 12

United States v. Young,

Sa ee es a Sc a oo oo ee eee eee 11, 16

Yates v. United States

354 U.S. 298 (1957)... ...........04-. 5,7

STATUTES

Pa Arann. 3 ab aos dee oe eee ae 2,4

ee ee ee ou + ok ae ek a eee ee eee 2

Pe he eee bc eben eck ewe eee es 2-9, 17

eS ae: eee ye a ee er 2

a Pea

BRIEF IN OPPOSITION

STATEMENT

Petitioner, Deborah Gore Dean, was an employee of the

Department of Housing and Urban Development ("HUD")

from 1982 to 1987. In July 1984, she was promoted to

Executive Assistant to the Secretary. In 1987, petitioner was

nominated by the President to become an Assistant Secretary

of HUD. Hearings were held on her nomination by the

Senate Committee on Banking, Housing, and Urban Affairs

(“Senate Banking Committee”) on August 6, 1987, but

petitioner’s nomination was not discharged.

In the spring of 1989, the Inspector General of HUD

(“IG”) reported apparent mismanagement of the Moderate

Rehabilitation Program (“Mod Rehab Program”), a program

aimed at upgrading substandard housing for low-income

tenants. The program was established in 1978 to fund the

improvement of marginally deteriorating rental housing and

to subsidize rents of lower-income families living in those

improved units. Congress authorized HUD to pay owners of

substandard housing, either directly or indirectly through

public housing agencies, to upgrade the properties.

Regulations made state and local public housing authorities

primarily responsible for program administration. According

to the IG, top Department officials had, from 1984 to 1989,

allocated hundreds of millions of dollars of program funds on

an informal, undocumented, and discretionary basis.

Ignoring regulations that should have governed their funding

decisions, the officials directed money to favored developers,

many of whom had connections to the Department. App.,

infra, 2a.'

' The appendix to the petition includes an abridged version of the opinion

of the court of appeals and omits relevant portions of the court's

discussion. A complete copy of the court’s opinion is appended to this

brief.

A subcommittee of the House Committee on Government

because of the admmmustration of the Mod Rehab Program,

HUD wad tecome “synonymous wih rampant aus,

tavern, and wismanagemen.” Agy., infra, lav. The

onnnnninicn Menites peitome 4 4 “hey Player” ww the

Deparinen + “trem wine” hyp, infra, Va.

On bihy 1, 1ST, 4 epanA pity teltneA 4 hee CH

Lcddaieddaidaldedd Lass endabohdsenhcdastidadaativas, eexdemalldcadéle.den

nih conan ii Vikan ANGUS, § 971 Couns

(me, Two, wd Three), one conn Of taving aecepled an

egal gratuity in violation of 18 U.8.C, § 201, four counts

of perjury in violation of 18U.8.C. § 1621, and five counts

of concealment and false statements in violation of 18 U8.C.

§ 1001 (the "substantive § 1001 counts”), The district court

subsequently dismissed one of the substantive § 1001 counts,

The case against petitioner, which was brought by an

Independent Counsel, centered on petitioner's involvement

with the Mod Rehab Program.

In all three conspiracy counts, petitioner was charged

with planning both w defraud and t\ commit an offense

agaist the United Sunes. The “offense” against the United

Sunes thal peuuone aligged) schomed w comm@r was if

USC. § 2000 Ge “§ 108 ote”), Cour Ther aie

eaet ap ati como) “ofierse” — tie acongeanor of

= iegd gay 2 oniaa of UUSC ED —-ae me

Myer of Me cnepuay

Following @ ery (al. poioner wee comic hy

gener vert of Ml twelve remain Conte and was

MERA (tr 4 (ern Of Continent aid 4 fine = Paticner

“ppenies, arging, among her things, Wat there wae

ine EFIC IEA eV IMEnCe (6 Grupa her Convictions

After oral argument before the court of , thie

Court decided MHulhard v. United States, 119 8. Ct. 1754

(1995), narrowing the reach of 18 U.S.C. § 1001, Relying

on Hubbard, the court of appeals reversed petitioner's

Commi icisons Cn ie Coir wantatvie 'y 18s “Coitiits. “Tie ORT

reasomeds that these cones charged false statements before the

Senate Barking Comenttioce and that, ander Hubbard, 4 1)

ns th wae ctrmmal tales datemerts w the legislative

wah, ep, infra, VrrVa

the panel dectned, torwere, terete the tite

comveppiney comprickienns The cont of arenes that

w soni 1 the winners 41001 comnts, the § 1)!

ais A the conmpracy Cnns HA wh inves Dear >

vaemens 0 the Senate tanking Commies, App, Infra,

4a 010, Inolend, the § 1001 objects included “notions

Dean ook a6 4 Department official,” whieh was conduct that

“was plainly within the jurisdiction of an executive agen y

the Department of Housing and Urban Development,” /hid

Petitioner sought rehearing and suggested rehearing in

bane in the court of appeals, specifically calling the court's

attention to Hubbard and arguing that the invalidation of the

substantive § 100] counts required reversal of the conspiracy

counts that charged violation of § 1001 as one of their

otyects After raguesting and recen me a response from the

Unned Sunes. the cout of appeals demued the petmon without

desc. Pea. Agp. A-25

ARGUMENT

Neither of the questions presented in the petition

warrams review. As to both issues presented, the court of

appeals snply applied settled law to the facts before nt. The

comnts tevtution A thse questions plaithy was vortect.

The petition thereforte thenrid be denied

1 PRTTTIONERS FIRST CURSTION PRESENTED 15

PREMISED) OM A MISREADING OF THE HOLIANG

beA LI

A. THE COURT OF APPEALS HAD 8O DEL AION 10

AVVLY VATED 10 THE COMBPIBALY COUNTS

Petitioner first (Pet, 6-14) argues that this Court should

gram certiorari to decide whether the court of appeals’

failure 1o reverse the multiple object conspiracy counts ts in

conflict with this Court's precedent and creates a conflict

among the cirouits, But petitioner's alleged conflict is

illusory, as it rests entirely on a misreading of the court of

appeals’ decision, Petitioner's real claim is that the court of

appeals misinterpreted the scape of the § 1001 object of the

multiple-object conspiracies. That question is, of course,

ontiraly fact-specific. In any event, a review of the record

Gemonstrates thal the cout accuratchy construad the scape of

the § 200) otyect and affirmed the comsprtacs com actions

TTUPST: BOM AUTE SeTUSS aw

Petuones angues teat dee cont of appeais aeoersd of

ax cmutaens on Ge aibaatioe § 1 comms for flor

Saemens te mate te Sena Rankong Commute on

hegud ©, 087, eames Gat the comet aan wt gente Wer

MOTORS ON Wg OYRAT Oeg\ tay ranite Bra

+ Tide ergumseat te (espatiete to Coun Thee, which charged (hat

petitioner conepired (6 vielate Weth § 1001 and § Hil Mecaee he cowrt

(of apepeeale af ierned petitioner © conviction ct the eubretaative § 21 count

(eee App. A/a, tla tte), there 16 an independent and adequate basic for

the conepifacy verdict

6. In support of her argument, Petitioner cites Yates v.

United States, 354 U.S. 298 (1957), which held that a

conviction by general guilty verdict of 4 multiple object

comepiracy mast be reversed if one of the objects of the

comapitacy 14 legally imadequate. Bit Yaies ts mayposne

here. Aes the conert of appeals explained, the comduct charged

inn the sbtannive 100) consti, petitioner 4 false datemennts

i“ the Sone tanking Commies, 4 nol the conhie

iarhitied aa the § 1001 obneet of the commpitacien blend

the convaprncy cone weged tha petnunner made fale

unemens and covered up setions tak whe tame “ae #

Deparmenm official” (App,, infra, 94a nA) and thal

acoordingly served 19 conceal her seheme from her HUD

colleagues, her statements (9 the Senate Banking Committee

were cited only as overt acts in furtherance of the

conspiracy’

That the court of appeals did not view the conduct

involved in the substantive § 1001 counts and in the

conspiracy counts as identical is confirmed by the court's

descripuion of the alleged conspiracies. The court noted that

all three conspiracies followed the same pattern developers

secking Mod Rehab Program funds hired petitioner's

ooconspiratars, who held themscives oul as abie 10 otvtain

such funds: petiuensr wsed her anfluence at BUD wt make

ox feooeet erament. ant o@ cochange for pettiness

votaah on tue gtd oemall aut ae ome ta Bev Wer

OD. hep, ire, 9a. The cove then netek that, “(rip

ide the compe, Deen comeemet We wey We

Laer actully Wace a4 fondwng daxieomne bid

Cicnw here i fhe Conwet 6 cnnenary Of The Gidl Of he Comepitacy

' The avert acte weed (6 eatablieh @ Conepifaey Heed Het Ke Criminal if

character, See Vases, 144 U8. at 144, Braverman ©. United States, 417

U.S. 40, $4 (1942)

counts did it even mention petitioner’s false statements to the

Senate Banking Committee.*

To further distinguish the scope of conduct included

within the § 1001 object of the conspiracy counts from the

§ 1001 substantive counts, the court began the section

immediately following its discussion of the conspiracies by

Stating that:

The other eight counts in the indictment arise from

Dean’s testimony before the Senate Committee on

Banking, Housing and Urban Affairs regarding her

nomination for Assistant Secretary for Community

Planning and Development.

App., infra, 33a (emphasis added). And in the next to last

sentence of that section, the court reiterated that petitioner

was convicted of the substantive § 1001 counts “for

Statements she made before Congress.” App., infra, 34a.

The court added (at App., infra, 34a n.10. (emphasis added))

that, |

[b]y contrast, the government supported Counts

One, Two, and Three, in which it claimed that Dean

had conspired to violate 18 U.S.C. § 1001, with

evidence of actions Dean took as a Department

official. This conduct was plainly within the

jurisdiction of an executive agency — the

Department of Housing and Urban Development.

There can be no doubt, therefore, that the court of

appeals did not view the § 1001 object of the conspiracies as

relating to petitioner’s statements to the Senate Banking

Committee. And under this reading of the indictment,

reversal of the substantive § 1001 counts (which involved

* Neither did the court discuss petitioner’s statements to the Senate

anywhere else in the its extensive discussion of the evidence supporting

petitioner’s conviction on the three conspiracy counts. See App., infra,

8a-3 la.

naa siectindih seb.

statements to Congress) has nothing to do with the question

whether petitioner engaged in other conduct that gave rise to

the conspiracy charges. The issue actually raised by the

court of appeals’ decision, therefore, is not whether Yates

was properly applied, but rather whether the court of appeals

accurately determined the scope of the § 1001 object of the

conspiracies. This fact-bound question plainly does not

warrant review.

B. THE COURT OF APPEALS PROPERLY APPLIED

SETTLED LAW TO THE FACTS OF THIS CASE.

Review of petitioner’s convictions on the multiple-object

conspiracies also is inappropriate because the court of

appeals’ decision is clearly correct. The indictment identifies

the § 1001 goal of each of the conspiracies in substantially

the same terms:

It was a further goal of the conspiracy that the defendant

DEBORAH GORE DEAN would falsify, conceal, and

cover up the manner in which HUD funding decisions

were actually made in order to hide thie existence and

ongoing nature of the conspiracy.

Pet. App. A-29 (Count One 4 13); see Pet. App. A-42

(Count Two $15); Pet. App. A-57 (Count Three 4 19).

Each conspiracy count then sets forth in specific detail the

manner and means by which its goals were accomplished.

In Count One, for example, the next nine paragraphs allege

how petitioner used her official position to facilitate the

award of HUD benefits (including Mod Rehab Program

funds) to her coconspirators and how she and her

coconspirators benefitted from her conduct. Count One

44 14-22. Not once in those subsequent paragraphs did the

government refer to petitioner’s testimony before the Senate

Banking Committee. But in the tenth paragraph the

indictment charges, in language tracking the definition of the

§ 1001 goal, that:

It was a further part of the conspiracy that defendant

DEBORAH GORE DEAN would falsify, conceal, and

cover up the manner in which HUD funding decisions,

including Mod Rehab funding decisions, were actually

made, in order to hide the existence and ongoing nature

of the conspiracy, so that its goals might be

accomplished.

Pet. App. A-29 (Count One { 23); see Pet. App. A-42

(Count Two § 25); Pet. App. A-57 (Count Three { 19). By

placing the allegations in the charging instrument

immediately after the explanation of the typical operation of

the conspiracy (and at least 60 paragraphs before petitioner’ s

false statements to Congress are even mentioned in Count

One), the indictment made clear that the § 1001 object of the

conspiracies was not limited to hiding petitioner’s scheme

from the Senate Banking Committee. This interpretation of

the indictment makes sense. One would expect one aspect of

a conspiracy to be its concealment from those uninvolved;

otherwise, it would be a short-lived criminal venture.

Indeed, the indictment does not refer to petitioner’s

statements to the Senate Banking Committee until it sets forth

the overt acts in furtherance of each conspiracy — and then

it does so only in the last two paragraphs of the section. See

Pet. App. A-40 to A-41 (Count One 4¢ 87-88); Pet. App. A-

54 to A-55 (Count Two 44 107-08); Pet. App. A-64 (Count

Three 44 64-65). Read in context, therefore, it is clear that

the court of appeals correctly concluded that the § 1001

object defined in the indictment addressed “conduct [that]

was plainly within the jurisdiction of an executive agency —

the Department of Housing and Urban Development.” App.,

infra, 34a n.10.

The trial court’s instructions to the jury underscore the

nature of the § 1001 object. As to Count Three, for

example, the trial court told the jury that the indictment

broadly charged that petitioner “conspired to falsely conceal

and cover up material facts and to make false and fraudulent

satin

statements and representations concerning the manner in

which HUD funding decisions were actually made in order

to hide the existence and nature of the unlawful conspiracy.”

Tr. 3548; see Tr. 3546 (Count One); Tr. 3547 (Count Two).

There was no suggestion in the jury charge that the

conspiracy counts addressed false statements made to

Congress.°

In light of the scope of the § 1001 object of the

conspiracies and the fact that the court of appeals found the

evidence adequate to support conviction as to at least one of

the objects of the conspiracy (the conspiracy to defraud the

United States), the panel correctly affirmed petitioner’s

multiple-object conspiracy convictions.° That would be so

even had the evidence been insufficient to support conviction

as to the § 1001 object of the conspiracy; as the court of

appeals explained (at App., infra, 33a n.9), this Court held

in Griffin v. United States, 502 U.S. 46, 57 (1991), that

where one object of a multiple-object conspiracy is

invalidated because the evidence is insufficient, the multiple-

object conspiracy conviction is still valid. The Coun

reasoned that it is unlikely that a jury, which is well

equipped to analyze evidence, would convict on a ground

that was unsupported by adequate evidence when there

* Although the trial court correctly instructed the jury that many elements

of the § 1001 object in the conspiracy counts and the substantive § 1001

offenses are the same (Tr. 3553), the court did not tell the jury that the

§ 1001 object and the substantive § 1001 offenses involved the same

conduct.

* As the court of appeals explained after finding the evidence sufficient

to affirm petitioner’s conviction for conspiracy to defraud the United

States, “there is no need to determine whether the evidence-relating to

Counts One, Two and Three also supports a finding that [petitioner]

conspired to violate § 1001. Even if it did not, [petitioner's] convictions

on these counts would stand. A general verdict on a multiple object (sic)

conspiracy is valid so long as the prosecution submits sufficient proof of

one object of that conspiracy.” App., infra, 33a n.9.

existed an alternative ground for which the evidence was

sufficient. Jd. at 59-60. In sum, the court of appeals’

decision affirming petitioner’s conspiracy convictions is in

complete harmony with the jurisprudence of this Court; no

conflict or error is presented.

Il. PETITIONER’S DUE PROCESS CLAIM IS

INSUBSTANTIAL

Petitioner's second argument (Pet. 14-29) is that

prosecutorial misconduct violated her constitutional right to

due process and a fair trial. This contention is insubstantial.

Petitioner does not argue that the court of appeals applied an

improper constitutional standard in assessing her claims.

Rather, she complains that the court misapplied settled law

to the particular facts of her case. To review this complaint,

the Court would have to recreate the context, tone, and

atmosphere of a multi-week trial — which included hundreds

of documents, numerous witnesses, and comprehensive jury

instructions — to determine whether, in light of the overall

proceeding, certain isolated prosecutorial statements and

nonmaterial evidence tainted the trial sufficiently to make the

entire proceeding fundamentally unfair. Review to address

such a fact-intensive issue is unwarranted.

It is plain, in any event, that the decision below is

correct. Petitioner asserts that the cumulative effect of

several alleged instances of prosecutorial misconduct violated

her constitutional right to a fair trial. Pet. 14. Even if trial

errors occurred, as they do in many prosecutions, both courts

below concluded that petitioner’s trial was fair. There is no

reason to doubt the validity of this conclusion. United States

v. Agurs, 427 U.S. 97, 114 (1976).

1. Petitioner complains that the prosecutor

improperly questioned her veracity during closing argument.

But petitioner was charged with four counts of perjury, and,

as the court of appeals noted, “[t]he prosecutor had every

right to argue that she had not told the truth.” App., infra,

49a. The trial judge similarly noted that “it’s very hard to

De ahaa: ide dee

argue a case of perjury unless you are allowed to refer to the

defendant’s testimony and have the jury consider what it’s

worth.” Pet. App. A-155 to A-156. Indeed, petitioner’s

counsel told the jury repeatedly in his opening that this case

was about who was telling the truth and who was lying, and

that petitioner had not lied. Tr. 77-83.

Moreover, the prosecutor’s statements must be

considered in context. See Darden v. Wainwright, 477 U.S.

168, 179 (1986) (must view impact of statements in context

of entire trial). In virtually every instance cited by

petitioner, the prosecutor’s statement as to petitioner’s

veracity was preceded by a reference to a particular piece of

evidence or to an event that called her truthfulness into

question. These statements were not pervasive, as petitioner

would have it. Rather, the prosecutor merely asked the jury

to draw reasonable inferences from evidence properly

presented that tended to indicate that petitioner was guilty of

the crimes with which she was charged (one of which was

perjury).

In addition, even if some of the prosecutor’s statements

regarding the truthfulness of petitioner’s testumony had

exceeded the extensive leeway afforded counsel during

closing argument,

a criminal conviction is not to be lightly overturned on

the basis of a prosecutor’s comments standing alone, for

the statements or conduct must be viewed in context;

only by so doing can it be determined whether the

prosecutor’s conduct affected the fairness of the trial.

United States v. Young, 470 U.S. 1, 11 (1985).

In this case, it cannot be said that the prosecutor’s

isolated comments “so infected the trial with unfairness as to

make the resulting conviction a denial of due process.”

Darden, 477 U.S. at 181; accord Donnelly v. DeChristoforo,

416 U.S. 637, 643 (1974). As the court of appeals held,

even if any of the prosecutor’s statements might have been

perceived by the jurors to spill over into expressions of

personal belief, “the district court cured the problem.”

App., infra, 50a. During closing argument, the prosecutor

explicitly told the jury that it was for them to determine who

is believable. Pet. App. A-82. The trial court reiterated that

point in comprehensive instructions to the jury, stressing that

it alone was to decide the believability of witnesses. Pet.

App. A-147; see, e.g., Tr. 3531 (“You decide the value of

the evidence and the believability of the witnesses.”); Tr.

3535 (“You are the sole judge of the credibility of the

witnesses. In other words, you alone are to determine

whether to believe any witness and the extent to which any

witness should be believed.”); Tr. 3537 (“The defendant has

introduced testimony that she is a truthful and honest person.

Such evidence may indicate to you that it is unlikely that a

truthful and honest person would commit the crimes charged

or testify untruthfully. The government has introduced

evidence that the defendant has a bad reputation for truth and

veracity. You should consider all this evidence along with

other evidence in the case in determining the guilt or

innocence of the defendant, and you should give it such

weight as in your judgment it is fairly entitled to receive.”).

This Court has found that curative instructions such as these

are important factors in minimizing the prejudicial effect of

any improper argument by a prosecutor. See Donnelly, 416

U.S. at 644.

2. Petitioner asserts that the prosecutor relied in

closing argument on three pieces of evidence that he knew or

should have known to be false: the testimony of Thomas T.

Demery, receipts from Andrew Sankin, and the testimony of

Ronald L. Reynolds. The knowing use of perjured testimony

violates due process “if there is any reasonable likelihood

that the false testimony could have affected the jury’s

verdict.” See United States v. Bagley, 473 U.S. 667, 680

n.9 (1985). Under this standard, no reversible error

occurred here for two reasons: the prosecutor did not

knowingly use perjured testimony, and, even if he had, it is

unreasonable to believe that such testimony could have

affected this verdict.

a. Petitioner first complains (Pet. 22) that the

prosecutor did not on redirect examination correct Demery’s

denial on cross-examination of ever having lied under oath

before Congress, even though the prosecutor assertedly knew

that Demery had done so. Petitioner contends that had the

prosecutor taken this action, the jury would have been less

likely to believe Demery’s testimony that he first learned of

a Dade County funding request from petitioner, and not vice

versa.

There is no factual basis for this claim. Petitioner knew

— as a result of the government’s pretrial disclosures — that

Demery originally had been charged with perjury before

Congress, and she was aware of the basis for that charge.

She also knew, and the government elicited before the jury,

that Demery had pleaded guilty to obstructing a grand jury

investigation. Thus, had petitioner actually believed that

Demery perjured himself at trial, she had the material to

impeach him readily at hand. That she did not do so

reinforces what is already apparent from the record: the

question as to which petitioner now claims that Demery

perjured himself was ambiguous.

But in any event, even if Demery’s testimony had been

perjurious, that testimony was cumulative and very limited,

making it unreasonable to believe that it had an impact on the

jury’s verdict. The government offered far more probative

evidence linking petitioner to the Dade County projects.

Indeed, in discussing the sufficiency of the evidence of

petitioner’s involvement in those projects, the court of

appeals did not bother to mention Demery’s statements.

Rather, that court relied on petitioner’s own handwritten note

“recording precisely the number of units for which Kitchin’s

[, a coconspirator’s,] client wanted funding,” her ties to

Kitchin, and Kitchin’s testimony that he had discussed the

project with petitioner. App., infra, 29a-30a.

b. Petitioner asserts (Pet. 24) that the government

presented false evidence at trial by introducing credit card

receipts from a coconspirator, Sankin, that indicated he had

entertained and given gifts to petitioner. Petitioner asserts

that the night before the receipts were entered into evidence,

Sankin told the government that he could not recall anything

about the documents.

That Sankin denied knowledge of a link between some of

the charge slips and petitioner does not mean, of course, that

there was no nexus. Sankin acknowledged entertaining and

giving gifts to petitioner. Tr. 2701-2704. Moreover,

virtually all the receipts referenced petitioner by name or by

her HUD title. See, e.g., GX 11f, 11j, 11k, 111, 11m, 11n,

llo, llp, llu, llw, 1lq, llv. Finally, Sankin’s alleged

inability to link the slips to petitioner may well have been

affected by other factors. As the trial court observed, many

of the witnesses the government was required to call were

adverse, as they were either unindicted coconspirators or

individuals who had been given immunity and required to

testify. Pet. App. A-155.

In any event, there can be no doubt that petitioner was

not prejudiced by the government’s failure to raise the

question of perjury during direct examination. The omission

subsequently came to light during trial, and the judge allowed

defense counsel to cross examine Sankin, eliciting testimony

that several of the charge slips “‘were definitively not related

to Deborah Dean.’” App., infra, 46a. Consequently, the

jury was able to consider Sankin’s testimony.

c. Petitioner further complains (Pet. 23) that the

government introduced the testimony of Ronald L. Reynolds,

a HUD driver who testified about driving petitioner to

lunches where she met a coconspirator, John Mitchell, even

though the government had introduced calendars and other

evidence that contradicted some of Reynolds’ testimony.

According to petitioner, these documents (unlike the Sankin

receipts she chides the prosecutor for presenting) must be

truthful and Reynolds (unlike Sankin) therefore must be a

liar. As noted above, however, there is nothing

impermissible about presenting contradictory evidence to the

jury and allowing it to sort out the conflict.

Moreover, this testimony was cumulative and could not

have had a bearing on the verdict. Reynolds testified that

petitioner and Mitchell lunched on certain occasions, and

thus had a personal relationship. But the jury had before it

evidence that Mitchell was a close companion of petitioner’s

mother, that petitioner considered Mitchell to be her

stepfather and referred to him as “Daddy,” and that Mitchell

referred to petitioner as his “daughter.” Tr. 1368. In light

of evidence demonstrating this close, familial relationship, it

defies reason to believe that testimony regarding their

occasional lunches together infected the jury’s judgment.

3. Petitioner asserts (Pet. 25-26) that the prosecutor

improperly vouched for government witnesses and suggested

the existence of incriminating information outside of the

record. Both claims lack merit.

Petitioner apparently interprets the prosecutor’s statement

that she was “the only one we know who definitively did lie”

as an indirect attempt to vouch for the testimony of all other

witnesses. But this isolated statement, like the references to

petitioner’s truthfulness that are discussed above, was

argument for an inference that is supported by evidence in

the record.

Petitioner also contends that the government offered no

evidence that she had misled Secretary Pierce, and therefore

that the prosecutor suggested the existence of incriminating

information outside the record by arguing: “Just as she’s

deceived you or attempted to do so, * * *, she misled

Samuel Pierce and didn’t tell him of her hidden interest.”

Wet. 25. But petitioner's mitial premise as faulty; there os

cevidence an the record from which a reasonable factfinder

«could conclude that petitioner misied the Secretary. For

cexample, petitioner herself stated that Secretary Pierce was

ca fine man and a prominent attomey. One could reasonably

iinfer from such evidence that Secretary Pierce would not

Ihave allowed his Executive Assistant to participate in

(decisions regarding projects in which she had an interest.

But even if either of the above statements exceeded the

tbroad leeway given attorneys during closing argument (which

jas far from clear im this case involving concealment and

mumerous perjury counts), amy prejudicial effect was

@ertamly cured by the coum’s mpeated and forefel

mastrucoms &> the gery and the quamtem of evidence

estabishuns petmomer’s gua See. ¢ ¢ . Youre. 470 US. a

19-20.

4 Peomoeer compiles — @ @ 2g oo

rassed below — that the prosecutor acted & preyedice the jury

agumst ber by making two purportedly “smart commests_~

by making quips after she answered some questions dumng

Cross examination, and by trying to turn the jury, which was

composed entirely of African Americans, against her because

she was “a prominent Caucasian.” Pet. 27. In fact, there

was no such effort to prejudice the jury. The comments

about which petitioner complains are taken out of context and

misinterpreted. Moreover, even if they had been improper,

they plainly are far too isolated to constitute prejudicial

error. See Donnelly, 416 U.S. at 645.

In particular, according to petitioner (Pet. 27-28), the

prosecutor tried to inflame the jury based on race by arguing

that she tried to implicate her predecessor, an African

American, as the one who approved certain Mod Rehab

Program waits and that she tried to deceive Secretary Pierce,

also an African American, by keeping him enintormed of her

prosecuios moves made anytng of the race A these two

indy viduals . The government's pout had nothing 10 do with

race, and turned only on the official position that these

individuals held. The government's argument thus went to

an important aspect of its case regarding one of the § 1001

objects of the conspiracies: it explains how petitioner, in

both instances, attempted to conceal her involvement in the

conspiracies from others at HUD. Nothing in this argument

is improper.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submatted.

Lagzey D. THoseson

CHARLES RoTHFELD Dias J. Sere

MocHazi E Lackey. Je Deputs Independers Course:

Oftce of Independens Course!

£££ North Capitol Sree:, NW.

Suite S19

Washington, D.C. 20001

(202) 786-6681

FEBRUARY 1996

APPENDIX

UNITED STATES of America, Appellee,

Vv.

Deborah Gore DEAN, Appellant.

No. 94-3021.

United States Court of Appeals,

District of Columbia Circuit.

Argued Nov. 15, 1994.

Decided May 26, 1995.

Suggestion for Rehearing In Banc

Demed Sept 13. 1995.~

James M Spears. argued the camse, Washo, DC

for appear Wot bm on the beds was Joseph J. Aroma

Beace C_ Swartz, Deputy Independeat Counsel. argued

the cause. Washington. DC. for appellee. With him om the

Omef were Arim M_ Adams. Independent Counsel. and

Robert J. Meyer, Associate Independent Counsel.

Before: WALD, SILBERMAN, and RANDOLPH.

Circuit Judges.

RANDOLPH, Circuit Judge:

A jury convicted Deborah Gore Dean, a former

employee of the Department of Housing and Urban

Development, of three counts of conspiracy to defraud the

federal government, one count of having accepted an illegal

gratuity, four counts of perjury, and four counts of engaging

in a scheme to conceal material facts. The district court

semenced Dean t two concurrent terms of twenty-one

months confinement on the first two conspiracy counts and

” Semele, Crows judge, Gib ncn partcipme in this onder

fined Dean $2,500 on each of those counts. On each of the

remaining counts, the court sentenced Dean to twenty-one

months’ confinement, to run concurrently with each other

and with the sentences imposed under the first two

conspiracy counts. On appeal, Dean maintains that the

evidence presented at trial was insufficient to support her

conviction; that the trial court erred in quashing subpoenas

she served on a Senator and a Senate committee investigator;

that the government engaged in prosecutorial misconduct,

depriving her of a fair trial; and that the trial court

improperly sentenced her.

In the spring of 1989, the Inspector General of the

Department of Housing and Urban Development reported

apparent mismanagement of a HUD program aimed at

upgrading substandard housing for low-income tenants.

OFFICE OF THE INSPECTOR GENERAL, USS.

DEPARTMENT OF HOUSING AND URBAN

DEVELOPMENT, AUDIT OF SECTION 8 MODERATE

REHABILITATION PROGRAM (Apr. 26, 1989)

{hereinafter OIG AUDIT REPORT]. According to the

Inspector General, top Department officials had, from 1984

to 1989, allocated hundreds of millions of dollars of program

funds on an informal, undocumented and discretionary basis.

Id. at 5. Ignoring regulations that should have governed

their funding decisions, the officials directed funds to favored

developers, many of whom had connections to the

Department. Jd. at 5-9. A subcommittee of the House

Committee on Government Operations investigated further.

HOUSE COMM. ON GOVERNMENT OPERATIONS,

ABUSE AND MISMANAGEMENT AT HUD:

TWENTY-FOURTH REPORT, H.R.Doc. No. 977, 10\st

Cong., 2d Sess. (1990) [hereinafter HOUSE REPORT]. The

subcommittee reported that, largely because of its

administration of this program, the Department had become

“synonymous with rampant abuse, favoritism, and

mismanagement.” Jd. at 111. The subcommittee identified

Deborah Gore Dean — a prominent Department official —

as a “key player” in the Department’s giveaway game. “Jd.

at 4.”

On July 7, 1992, a grand jury returned a thirteen-count

indictment against Dean. The indictment charged Dean with

three counts of conspiracy in violation of 18 U.S.C. § 371,

one count of accepting an illegal gratuity in violation of 18

U.S.C. § 201(c)(1)(B), four counts of perjury in violation of

18 U.S.C. § 1621, and five counts of concealment and false

statements in violation of 18 U.S.C. § 1001. The district

court dismissed one of the counts brought under 18 U.S.C.

§ 1001. On October 26, 1993, a jury found Dean guilty of

the twelve remaining counts.

The case against Dean, brought by an Independent

Counsel, 28 U.S.C. § 594, centered on Dean’s actions as an

administrator of the Department’s Section 8 Moderate

Rehabilitation Program. Established in 1978, the program

funded the upgrading of marginally deteriorated rental

housing, and subsidized rents of lower-income families living

in the improved units. To this end, Congress authorized the

Department to pay owners of substandard housing, either

directly or through public housing agencies, to upgrade their

properties. Act of Oct. 31, 1978, Pub.L. No. 95-557, §

206(e), 92 Stat. 2080, 2092. Regulations governing the

program, published in 1979 and first revised in 1982, made

state and local public housing authorities primarily

responsible for program administration. After deciding

which substandard properties qualified for funding, 24

C.F.R. §§ 882.503-882.504 (1982), public housing

authorities contracted with owners and developers to

rehabilitate the properties. 24 C.F.R. § 882.505 (1982).

For owners and developers of adequately upgraded

properties, 24 C.F.R. § 882.506 (1982), additional contracts

guaranteed a fifteen-year stream of rental subsidies.' 24

C.F.R. §§ 882.403(c), 882.409 (1982). Under the

regulations, the Department oversaw public housing

authorities’ administration of the Moderate Rehabilitation

Program. The Department determined which public housing

authorities were qualified to participate in the program, 24

C.F.R. § 882.501 (1982), and allocated funds to qualified

public housing authorities under one-year contracts, 24

C.F.R. §§ 882.403, 882.501 (1982).

Problems with administration of the program began in

1984 when Congress altered the way in which the

Department allocated funds to public housing authorities.

HOUSE REPORT at 10. Before 1984, the Department

distributed program funds to housing authorities based on a

congressionally-mandated “fair share” formula. Housing and

Community Development Act of 1974, Pub.L. No. 93-383,

§ 213(d)(1), 88 Stat. 633, 675. Under this formula, the

amount of money a state received from the Department

depended on its population, poverty, housing overcrowding,

housing vacancies, the amount of substandard housing, and

other criteria. HOUSE REPORT at 10. In 1984, at the

Department’s request, Congress waived the fair share

funding requirement. Act of Nov. 30, 1983, Pub.L. No.

98-181, § 201(a)(2), 97 Stat. 1153, 1176; HOUSE REPORT

at 10. Although this meant that the Department no longer

had to allocate funds on a geographically-mandated basis, it

did not leave Moderate Rehabilitation Program funding

decisions utterly up to the discretion of Department officials.

HOUSE REPORT at 10. Rather, Congress instructed the

Secretary of Housing and Urban Development to develop a

' Public housing authorities were also responsible for ensuring that

rehabilitated properties were properly maintained, 24 C.F.R.

§ 882.516 (1982), and for administering the selection of

lower-income families to live in the properties, 24 C.F.R.

§§ 882.513-882.515 (1982).

aa rca rs

formula to guide Department funding decisions, based on

“the relative needs of different States ... as reflected in data

as to population, poverty, housing overcrowding, housing

vacancies, amount of substandard housing....” Act of Nov.

30, 1983, Pub.L. No. 98-181, § 201(a)(2), 97 Stat. 1153,

1176.

In 1984, when Congress waived the fair share funding

requirement, Department regulations required allocation of

moderate rehabilitation funding among public housing

authorities based on an assessment of which housing

authorities’ applications had the best combination of five

criteria.?> 24 C.F.R. § 882.501 (1984). Nothing in

Congress’ waiver of the fair share funding requirement

indicated that the regulation was to be repealed. Nor did the

Department publish a notice suspending the regulation in the

Federal Register. HOUSE REPORT at 12. Nevertheless,

from 1984 through May 1988, Department officials did not

allocate funds to public housing authorities on the basis of

the criteria set forth in 24 C.F.R. § 882.501.

Department officials instead used “informal and

undocumented discretionary methods to allocate funding. ”’

* These criteria were: “(1) The demonstrated capacity of the

[public housing authority] or its contractor(s) to provide the

rehabilitation technical assistance to Owners required under the

Program; (2) The availability of financing resources, both assisted

and unassisted, as demonstrated through statements from financing

agencies ...; (3) The [public housing authority's] experience with

the Section 8 Existing Housing Program or the [public housing

authority's] overall administrative capability; (4) The potential of

achieving, as expeditiously as possible, the rehabilitation and

leasing of housing units under this Subpart; and (5) The overall

feasibility of the proposed program.” 24 C.F.R. § 882.501

(1984).

* According to the Inspector General’s report, the Department

OIG AUDIT REPORT at 5. As a result, “individual

allocations were relatively large; certain states and [housing

authorities] received a disproportionate share of funding; and

several former [Department] officials and employees

participated in the [Moderate Rehabilitation Program].” Jd.

at 6. Moreover, the Inspector General determined that, in

many cases, decisions to fund specific rehabilitation projects

were made at the Departmental level, rather than by local

public housing authorities as required by 24 C.F.R. §§

882.503-882.504 (1982). OIG AUDIT REPORT at 6 (“[W]e

noted conditions that indicated the Headquarters selection

was targeted for a specific project within a [public housing

authority's] jurisdiction.”). The Inspector General drew

these conclusions by reviewing the selection process for 69

moderate rehabilitation projects. For 19 of these projects,

the Inspector General found that developers had approached

housing authorities with claims that if the authority applied

for funding, an award would probably be forthcoming. Jd.

at 7. For 25 projects, developers seeking moderate

rehabilitation awards paid consultants — including former

Department officials — essentially to lobby the Department

for funds. Jd. And for 49 projects, ultimate awards made

by the Department or the housing authority closely

approximated the number of units owned or controlled by a

specific developer. Id.

based its discretionary approach to funding decisions on an oral

opinion issued by the Department’s General Counsel. Former

Department Secretary Pierce testified at the House subcommittee

hearings that, as he understood that opinion, Congress’ waiver of

§ 213(d) meant that the criteria set out in 24 C.F.R. § 882.501 no

longer applied to moderate rehabilitation funding decisions. OIG

AUDIT REPORT at 5; HOUSE REPORT at 10-11. However, the

former General Counsel denied having given such an assessment

of § 213(d)’s effect on moderate rehabilitation funding decisions.

HOUSE REPORT at 11.

According to the government (as we shall refer to the

Independent Counsel), Dean was one of the officials who,

ignoring the Department’s published regulations, used her

position to secure moderate rehabilitation funds for

developers willing to pay huge fees to lobbyists with whom

she associated. All three of the conspiracy counts in the

indictment alleged that Dean had violated 18 U.S.C. § 371

by defrauding the United States and the Department.‘ The

third conspiracy count added a charge that Dean conspired to

violate 18 U.S.C. § 201(c)(1)(B) by accepting $4,000 in

exchange for her performing official acts. Acceptance of the

illegal gratuity was also the foundation of Count Four of the

indictment, which charged Dean with violating 18 U.S.C.

§ 201(c)(1)(B).

The remaining eight counts of the indictment stem from

statements Dean made before the Senate Committee on

Banking, Housing, and Urban Affairs, in a hearing held on

August 6, 1987, regarding her nomination to be the

Department’s Assistant Secretary of Community Planning

and Development. Counts Five, Seven, Nine, and Eleven

charged Dean with perjury in violation of 18 U.S.C. § 1621

for four statements Dean made at the Senate hearing. Those

four statements were also the bases for Counts Six, Eight,

Ten, and Twelve, which alleged that Dean engaged in a

scheme to conceal material facts she had a duty to disclose,

in violation of 18 U.S.C. § 1001.

* The indictment charged that Dean had defrauded the United

States and the Department by depriving the Department and the

citizens of the United States of their right to Dean’s

“conscientious, loyal, faithful, disinterested and unbiased services”

and their right to have the Department’s “business and affairs

conducted in an honest and impartial way.”

We will deal first with Dean’s contention that the jury

did not have sufficient evidence before it to find her guilty

on any of these twelve counts, a contention on which she can

prevail only if, viewing the evidence in the light most

favorable to the government, we conclude that no “rational

trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” Jackson v. Virginia, 443

U.S. 307, 319, 99 §.Ct. 2781, 2789, 61 L.Ed.2d 560

(1979). As to the first three counts, we are mindful that

“(participation in a criminal conspiracy need not be proved

by direct evidence; a common purpose and plan may be

inferred from a ‘development and a collocation of

circumstances.’” Glasser v. United States, 315 U.S. 60, 80,

62 S.Ct. 457, 469, 86 L.Ed. 680 (1942) (citation omitted).

A. Conspiracy Charges

To establish a conspiracy under 18 U.S.C. § 371, the

government had to prove: (1) Dean agreed with at least one

other person to defraud the United States or, for Count

Three, to commit an offense against the United States by

violating 18 U.S.C. § 201(c)(1)(B); (2) Dean knowingly

participated in the conspiracy with the intent to defraud the

United States or to commit an offense against the United

States; and (3) at least one overt act was committed in

furtherance of the conspiracy. United States v. Treadwell,

760 F.2d 327, 333 (D.C. Cir. 1985), cert. denied, 474 U.S.

1064, 106 S.Ct. 814, 88 L.Ed.2d 788 (1986). The fraud

covered by § 371 “reaches any conspiracy for the purpose of

impairing, obstructing or defeating the lawful function of any

department of Government.” Tanner v. United States, 483

U.S. 107, 128, 107 S.Ct. 2739, 2751, 97 L.Ed.2d 90 (1987)

(internal quotations and citations omitted). Thus, if the

government’ s evidence showed that Dean conspired to impair

the functioning of the Department of Housing and Urban

Development, “no other form of injury to the Federal

Government need be established for the conspiracy to fall

under § 371.” 7d.

According to the indictment, all three conspiracies

followed the same pattern. Developers seeking moderate

rehabilitation funding hired Dean’s co-conspirators,

“consultants” who held themselves out as able to obtain

moderate rehabilitation awards. Dean used her influence at

the Department to make sure that projects operated by her

co-conspirators’ clients received program monies or other

favorable treatment at the Department. Dean's

co-conspirators were paid substantial “consulting fees” for

their services. In exchange for Dean’s facilitating decisions

favorable to their clients, her collaborators helped her

professionally and politically, worked for free on her behalf,

and in one instance, gave her $4,000. To hide the

conspiracies, Dean concealed the way the Department

actually made its funding decisions.

Dean worked for the Department of Housing and Urban

Development from 1982 to 1988. She began her tenure as

a Special Assistant to Department Secretary, Samuel R.

Pierce, Jr., and as Director of the Executive Secretariat.

HOUSE REPORT at 86-87. In June 1984, she became

Secretary Pierce’s top aide, with the title of Executive

Assistant. Jd. at 87. She resigned from this position in July

1987, after she was nominated to be Department Assistant

Secretary of Community Planning and Development.

Pending Senate Committee hearings on her nomination, Dean

continued to work for the Department as a paid consultant.

The Senate did not confirm Dean as Assistant Secretary, and

on January 8, 1988, she left the Department.

At trial, the government showed that Dean took an active

role in administering the Moderate Rehabilitation Program

after she became Secretary Pierce’s Executive Assistant.

According to the testimony of former Department officials,

Dean’s power stemmed from Secretary Pierce’s remote and

uninvolved management of the Department. These officials

characterized Secretary Pierce’s management style as “very

strange and interesting,” “totally hands off,” “detached,” and

10a

“not involved to any significant degree.” In one official’s

view, responsibility for “running the Department,” “up to

and including funding decisions,” fell to Secretary Pierce’s

Executive Assistant, the position Dean held from June 1984

to July 1987.

A Department employee responsible for releasing

moderate rehabilitation funds to the field testified that she

met with Dean in September 1985, and Dean told her “which

units [the Department] would fund,” often referring by name

to individual developers’ or consultants’ projects. This

official also testified that there were “no selection criteria for

where the funding would ultimately go” and that funding

decisions were “political.” In some cases, public housing

authorities had not even requested money for the projects

Dean directed the official to fund, and an executive assistant

would “work with Debbie ... to be sure that the application

was in and on file before the money would be released.”

Another official recalled a meeting at which Dean dictated

“which particular public housing authorities were to receive

an allocation of Moderate Rehabilitation units.” Again, for

a few of the public housing authorities Dean had named as

funding recipients, there were no applications requesting

funds, and Dean said that “she would take care of making

sure that the letters were found or were obtained.” Dean

herself behaved as though she had the power to approve

grants of moderate rehabilitation funding at the Department,

as suggested by a February 1, 1985, memorandum regarding

the departure of the Assistant Secretary for Housing/Federal

Housing Commissioner. Dean wrote the acting

commissioner that Secretary Pierce’s Office would concur on

all moderate rehabilitation funding decisions “not previously

approved by both [the former commissioner] and myself,”

until a new housing commissioner was named.

To this general evidence — Dean’s facilitation of the

funding of unnamed projects connected with unnamed

developers and consultants, and her memorandum suggesting

lla

that she had the authority to approve moderate rehabilitation

awards — the government added specifics, purportedly

linking Dean to various co-conspirators and to funding

decisions for particular moderate rehabilitation projects.

Whether this specific evidence, when added to the general,

supports Dean’s conviction on any of the three conspiracy

counts is in dispute.

1. Count One

As to the conspiracy alleged in the first count of the

indictment, the co-conspirators allegedly were Dean, John N.

Mitchell,° Jack V. Brennan, Louie B. Nunn, and Richard D.

Shelby. Nunn and Shelby were consultants who assisted

developers in obtaining moderate rehabilitation funds. Nunn

and Shelby engaged Mitchell to help them obtain federal

housing money for these projects. Mitchell and his colleague

Brennan worked for Global Research International, Inc., a

consulting firm Mitchell formed in 1979.

The indictment alleged that Dean and these four

individuals conspired to defraud the government and

committed overt acts with respect to four Florida housing

developments: Park Towers Apartments, Marbilt, South

Florida I and Arama. Martin Fine, a Florida housing

developer, hired Shelby to help him get funding to develop

the Park Towers Apartments. Another Florida developer,

Aristides Martinez, retained Nunn to get funding for the

other three housing projects — Marbilt, South Florida I, and

Arama.

Mitchell was Dean’s mother’s companion and lived with

Dean’s mother in the Georgetown section of Washington,

D.C., and at the Dean family Potomac River estate in

Maryland. Mitchell and Dean had a relationship comparable

to father and daughter. Mitchell spoke of Dean as his

daughter. In correspondence, Dean called Mitchell “Dad”

* Mitchell died in 1988 and therefore did not testify at trial.

12a

or “Daddy,” and at tal, she described Mitchell as her

“mentor/father-like person.” On Christmas Day 1986,

Mitchell gave Dean a check for $500, and he paid

approximately $3,300 for her birthday party in 1987.

Mitchell also helped Dean advance in her career. Dean used

his name as a reference in a 1984 security investigation, and |

he aided Dean in getting a job at the Department of Energy,

where she worked before coming to the Department. He

telephoned a Senator in support of Dean’s 1987 nomination

for Assistant Secretary and asked Shelby to do “whatever

[he] could to support her candidacy.” He called the Director

of the Federal Bureau of Investigation regarding the Bureau’ s

investigation of Dean for that nomination. According to the

government, Dean’s close relationship with Mitchell, as well

as the professional favors he did for her, gave her an

improper personal interest in assisting Mitchell in

Department matters.

With respect to the Park Towers Apartments in Miami,

the government’s evidence of overt acts taken to further the

conspiracy was as follows. Martin Fine, the developer

associated with this project, hired EMF & Associates, a

government relations firm headed by Eli M. Feinberg, to

help him obtain enough federal money to rehabilitate the

building’s 143 apartments. Sometime in March 1985,

Feinberg hired Richard Shelby to act as a consultant on the

Park Towers project. Shelby asked Mitchell for assistance

in obtaining the desired moderate rehabilitation funds,

agreeing to split whatever fee he received from EMF with

Mitchell. Shelby ultimately received $225,000 for his

services connected with the project.

To obtain moderate rehabilitation funding for the Park

Towers project, Shelby brought an application to the

Department, met with Department officials “three or four

times” and made “numerous” telephone calls to different

Department officials. Shelby testified that he dealt primarily

with Silvio DeBartolomeis (who was at the time Deputy

aerial

13a

Assistam Secretary of Housing),’ and also with Secretary

Pierce’s Special Assistant R. Hunter Cushing and Dean. The

Florida public housing authority received enough funding to

rehabilitate 266 units in late November 1985. On May 28,

1986, in a letter signed by DeBartolomeis, the Department

approved the Florida housing authority’s request that the

Department waive certain regulations that would have

prevented Park Towers from participating in the Moderate

Rehabilitation Program and from receiving a share of the

funds allocated to the Florida housing authority.

The government linked Dean to decisions made regarding

the Park Towers Apartments with the following evidence.

Dean's calendar reflected that from August 1, 1985, to

December 17, 1987 — a period of more than two years —

she scheduled thirteen lunch dates with Shelby. During this

time, she also scheduled six meetings with Shelby. After a

lunch on September 9, 1985 — at which Mitchell was also

present — Shelby sent Dean a handwritten note that began:

“Enclosed please find the information concerning the Section

8 Moderate Rehab Program in Miami....” The note

concluded: “As always thank you for that time and effort

which you must necessarily expend on my behalf. I

appreciate your friendship.” On February 3, 1986, Shelby

sent Dean information regarding Park Towers Apartments’

eligibility to receive moderate rehabilitation funding. Dean’s

calendar shows that she had scheduled a lunch with Shelby

that day. Also on that day, the project developer, Fine,

wrote a memorandum to the Park Towers file reporting that

* DeBartolomeis was another high-level Department official

responsible for the mismanagement of the Moderate Rehabilitation

Program. He held a number of positions at the Department,

including acting Assistant Secretary for Housing/Federal Housing

Commissioner. He also dated Dean. He pled guilty to three

charges arising from his conduct at the Department. As part of his

plea bargain agreement, he testified against Dean.

l4a

Feinberg had “a very good telephone conversation with”

Shelby. According to the memorandum, Shelby had “funch

with his friend at HUD,” who “indicated that this matter

could be dealt with in a favorable manner.”

We conclude that this evidence — whatever it may say

about Mitchell and Shelby — is insufficient to connect Dean

to a conspiracy involving the Park Towers project. The most

damning thing the government points to is a memorandum,

written by someone who had spoken to someone who had

spoken to Shelby, stating that Shelby’s “friend” at the

Department said problems with the project could be

favorably handled. But no evidence ties Dean to the

resolution of any of these problems — the waiver allowing

Park Towers Apartments to receive funding was signed by

DeBartolomeis, whom Shelby identified as his primary

Department contact, and came from DeBartolomeis’ office.

The only other piece of evidence linking Dean to Park

Towers is the suggestion in a note written from Shelby to

Dean that the two had discussed the project over lunch.

Nothing shows that Dean had anything to do with the

Department's initial decision to allocate funds to the Florida

public housing authority. This evidence simply cannot

support a conclusion that Dean defrauded the United States

and the Department by facilitating Department decisions

favorable to the Park Towers project.

With respect to the Marbilt project, the government’s

evidence of overt acts by Dean and her alleged

co-conspirators consisted mainly of a letter Dean sent to

Mitchell, and two memoranda. The letter, in which Dean

addresses Mitchell as “Dear Dad,” responds to an inquiry

Mitchell made on behalf of Nunn and Martinez, apparently

regarding the Department’s denial of Martinez’ requests for

15a

loan increases,’ After explaining that “the Department tried

as best it Could (6 be lenient,” Bean wrote:

As you know, I stand behind the decision of

the carreer [sic} people in Headquarters. Intervening

in a situation like this would be like jogging through

quicksand. I think it’s time we say “adios”.

The government claims that the sentence “I think it’s time

we say ‘adios’ ” would justify the jury in concluding that

Dean and Mitchell were working together on this matter.

We do not understand how. The two sentences preceding

“adios” suggest, if anything, that Dean was refusing to get

involved, that she supported the Department’s adverse

decision. In context, the sentence the government stresses

may be plausibly interpreted as Dean’s advising Mitchell that

the Department’s position on this matter was final. The

sentence is insufficient to warrant any conclusion that Dean

used her official position at the Department to further

Mitchell’s or Martinez’ interests regarding Marbilt.

With respect to the South Florida I project, the evidence

is also too weak to support Dean’s conviction on Count One.

In May 1986, the developer of the South Florida I project,

Martinez, received a letter from the Dade County housing

authority acknowledging receipt of his application for

moderate rehabilitation funding. The letter continued:

As you know we have no uncommitted

Section 8 Moderate Rehabilitation monies.

When we receive additional monies, we

will choose applications based on our

selection criteria.

" The Department later reversed its position and authorized the

loan increases Martinez requested. Dean forwarded a

memorandum allowing the loan increases to Mitchell with a note

that read: “To Daddy. F.Y.I.”

16a

Martinez sent a copy of this letter to Nunn. In an

accompanying letter, Martinez said the Dade County agency

had suggested his project would receive funding from the

next allocation of funds the agency received from the

Department. Implicit in the letter is Martinez’ understanding

that Nunn was to secure approval for an award of federal

funds to the Dade County agency. Martinez wrote that it

“would be much better” if the Department awarded funds

sufficient to upgrade 219 units, the number of units for

which he requested funding in his application, so that “there

would be no confusion as to whose proposal it is.”

Nunn sent copies of Martinez’ and the agency’s letters to

Brennan, Mitchell’s colleague at Global Research, Inc. As

they both acknowledged at trial, Brennan then met with Dean

on June 6, 1986. At the meeting, which lasted only a few

minutes, Brennan asked Dean to look into the status of the

South Florida I project and gave Dean copies of the two

letters. Dean forwarded the letter from the state agency to

the Federal Housing Commissioner. In September 1986, an

official directed the preparation of documents for several

funding awards to public housing authorities. Included in the

list of awards was one for 315 units to the Dade County

housing authority. The official’s rough notes indicated the

315 units came from the addition of “96” and “219” — the

figure 219 corresponding to the number of units for which

Martinez wanted funding. A memorandum of a September

18, 1986, telephone call from Dean indicated that she had

made certain changes to the list of awards, but the

memorandum said nothing about the award to the Dade

County authority.

We find the evidence regarding the funding of the South

Florida I project insufficient to constitute an overt act in

furtherance of the conspiracy alleged in Count One. The

government showed only that Dean briefly met with Brennan

and that he gave her two documents. Nothing else — no

internal Department document, no correspondence between

17a

Dean and her alleged co-conspirators, no testimony of the

alleged co-conspirators — showed that Dean had anything to

do with an award of moderate rehabilitation funding to the

project. In its brief, the government makes much of Dean’s

failure to tell Secretary Pierce of Brennan’s request. Brief

for United States at 21. We do not attach significance to this

omission. Dean’s position required that she operate

autonomously of Secretary Pierce in some _ instances.

Without more concrete evidence linking Dean to the

Department’s decision to award funding to the South Florida

I project, the jury could not reasonably conclude that Dean

took part in a conspiracy with respect to this project.

With respect to the Arama project, the chief piece of

evidence linking Dean to an improper Department decision

is a July 5, 1984, letter Dean wrote to Nunn about Arama

Partnership’s request for additional funding. The letter

reads:

The Department is now in the process of

completing the papers for the 293 units to

the Public Housing Authority in Florida.

Let me assure you that all the necessary

paperwork for the units will be transmitted

by the end of this week and that Arama

Partnership will definitely receive these

units from HUD.

This letter is damaging to Dean for two reasons. First, she

wrote it before the Federal Housing Commissioner, the

Department official with final responsibility for authorizing

the disbursement of housing funds to public housing

authorities, had notified the Florida public housing authority

that the Department had approved its request for funding.

Second, the letter assured Nunn that the Arama Partnership,

rather than the Florida housing authority, would receive

funding. Both the letter’s timing and its reference to project-

specific funding suggest that federal regulations — which

made public housing authorities responsible for selecting

18a

which rehabilitation projects to fund, 24 C.F.R. §§

882 .503-882.504 (1982) — had been bypassed. In letters to

other developers who inquired about funding, Dean wrote

that regulations “prohibit HUD from making project specific

allocations.”

Given these irregularities, the July 5, 1984, letter is

sufficient to support the verdict on Count One that Dean

committed an overt act in furtherance of a conspiracy to

defraud the Department. Dean testified at trial that she had

asked the Federal Housing Commissioner whether the Arama

project had been funded. The Commissioner confirmed that

it had been, and her letter simply passed this information

along to Nunn. But the former Housing Commissioner

testified otherwise. Although he did “not remember Deborah

Dean asking” him to sign off on the funding document, he

stated that he did not know that the 293 units would go to a

specific project in Miami. According to the former

Commissioner, the letter ran contrary to the Department’s

prohibition against project-specific awards. From this

evidence, a jury could conclude that Dean had acted with

Mitchell and Nunn to defraud the federal government by

impairing the functioning of the Department.

In sum, the government’s evidence is sufficient to show

that Dean knowingly engaged in overt acts in furtherance of

a conspiracy to defraud the federal government with respect

to the Arama development. A reasonable jury could not,

however, conclude from the evidence presented at trial that

Dean had collaborated with her alleged co-conspirators to

facilitate the Department’s decisions regarding the other

projects named in Count One — Park Towers, Marbilt, and

South Florida I. To establish a conspiracy, the government

need show only that one of the conspirators engaged in a

single overt act to further the conspiracy. Braverman v.

United States, 317 U.S. 49, 53, 63 S.Ct. 99, 101, 87 L.Ed.

23 (1942). Thus, on the strength of the evidence relating to

the Arama project, we sustain Dean’s conviction on the first

ga ge ee ee

19a

conspiracy count. The overt acts proved by the government

necessarily delineate the scope of the conspiracy. Cf.

Fiswick v. United States, 329 U.S. 211, 216, 67 S.Ct. 224,

227, 91 L.Ed. 196 (1946) (“The overt acts averred and

proved may thus mark the duration, as well as the scope of

the conspiracy.”). The conspiracy the government proved

involved only Dean, Mitchell and Nunn and related only to

the funding of the Arama project. As discussed below, see

infra pp. 666-67, we remand the case for the district court to

reconsider its sentencing decision in light of this more limited

conspiracy.

2. Count Two

The second conspiracy count involved Dean, Andrew C.

Sankin and, to a lesser degree, Thomas R. Broussard and

Richard D. Shelby. Dean and Sankin violated 18 U.S.C. §

371, the government charged, with respect to two moderate

rehabilitation projects: the Necho Allen Hotel and the

Regent Street Apartments. According to the indictment,

Dean and Sankin also conspired with Broussard on the

Alameda Towers development and with Shelby on the

Foxglenn and Eastern Avenue projects. The evidence was,

we hold, insufficient to convict Dean with respect to the

Regent Street, Foxglenn, and Eastern Avenue projects.

However, there was sufficient evidence to sustain Dean’s

conviction for conspiring to defraud the government in

regard to the Necho Allen Hotel and the Alameda Towers

projects.

Sankin, a 1984 graduate of Georgetown University Law

Center, began working as a consultant on Department matters

immediately after he finished law school. He met Dean in

the early 1980’s through their mutual acquaintance,

DeBartolomeis. In 1984, Sankin also began managing the

Stanley Arms Apartments, a 40-unit apartment building in

Washington, D.C., owned by the Dean family. Dean was

Sankin’s primary contact regarding Stanley Arms

management matters.

20a

Although Sankin was paid a percentage of the Stanley

Arms’ rental income for managing the complex, he

performed other services for the Dean family for which he

received no compensation. He prepared a lengthy request

for permission to raise rents at the rent-controlled Stanley

Arms Apartments. According to Sankin, the usual fee for

preparing such an application was around $20,000. Sankin

testified that he asked Dean whether she would pay him for

drafting the rent-increase application and that she responded

that “she had no intention of doing so.” Sankin did not push

the issue. A “potential rift with Ms. Dean over this issue,”

he testified, could have jeopardized the “considerable

business [Sankin did] with the Department of Housing and

Urban Development.” Other evidence also shows that

Sankin thought his work at the Stanley Arms Apartments was

linked to his Department-related business. When he received

a lump sum fee payment for his consulting services, Sankin

gave the Stanley Arms’ day-to-day manager a bonus, because

he “felt that the property management work that [the

employee] was doing on the Stanley Arms was ... connected

to and was important with the consulting work [Sankin] did

at HUD.”

Sankin and Dean’s relationship was not limited to his

management of her family’s property. In addition to the

work he did at the Stanley Arms Apartments, Sankin

accompanied Dean to the closing for a condominium she

bought and advised her regarding a dispute over maintenance

fees with the condominium association. At Dean’s

suggestion, he also contributed to several political and

charitable organizations.

The government introduced evidence showing that Sankin

and Dean discussed moderate rehabilitation funding. On the

basis of Sankin’s credit card receipts, the jury could have

concluded that from May 1986 to September 1987 Sankin

entertained Dean and discussed moderate rehabilitation

funding or other Department matters with her on eight

Derry isteaiandsenerenmincte seen

2la

occasions. Five of the receipts referred to Dean by name.

Three others described Sankin’s guest in a way that would

permit a jury to infer that he had entertained Dean.

One of Sankin’s clients was John B. Rosenthal,

developer of the Necho Allen Hotel and Regent Street

Apartments. The Necho Allen was a 65-unit moderate

rehabilitation project for the elderly in Pottsville,

Pennsylvania. Rosenthal hired Sankin to help him obtain the

Department’s permission to charge rents at the Necho Allen

Hotel exceeding those allowed by Department regulations.

According to a December 17, 1984, letter from Rosenthal to

Sankin, Rosenthal agreed to pay Sankin $10,000 if the

Department approved the request for the Necho Allen

exception before January 1, 1985. Although the Regional

Housing Commissioner supported the Department’s granting

the Necho Allen request, the Department initially denied it.

On March 1, 1985, however, a memorandum from Secretary

Pierce’s office reversed this position and approved the

exception to Department regulations. The memorandum bore

a duplicate of Secretary Pierce’s signature, authorized by

Dean.

Sankin testified that part of his job as a consultant on the

Necho Allen project was to “act as an advocate on behalf of

the client with the Department and with Deborah Dean.” It

was his understanding that as the Secretary’s Executive

Assistant, Dean was in a position to waive Department

regulations regarding rents for rehabilitated properties.

Sankin delivered the materials requesting the rental exception

to Dean and met with Dean and several members of her staff

regarding the project. The Regional Housing Commissioner

made a second request, in February 1985, to the Secretary

asking for approval for the Necho Allen exception rents. A

form from the Secretary’s office stated that the letter was

“taken to Deborah Dean .. - on 2/28/85 (per her request). She

will prepare final response.” A February 12, 1985, letter

from Rosenthal to Dean — written before the memorandum

22a

approving the exception had been issued — thanked Dean

“for the support [she had] provided in securing exception

rents” and asked her to “provide evidence that exception

market rents have been granted to the HUD area office.”

The government contends, and we agree, that this

evidence shows that Dean overruled Department officials to

help Rosenthal obtain increased rents on the Necho Allen

property. Dean asked that paperwork regarding the Necho

Allen request for exception rents be directed to her office,

and an internal Department document indicated that she

would prepare the response. She authorized the use of

Secretary Pierce’s name in connection with issuance of the

memorandum granting the Necho Allen petition. Moreover,

Rosenthal communicated directly with Dean regarding the

project, thanking her for her efforts and asking for

confirmation of the Department’s grant of the exception.

From this evidence, a reasonable jury could conclude that

Dean improperly used her position at the Department to

facilitate approval of the Necho Allen petition for Sankin’s

client.

Rosenthal also retained Sankin to help him obtain

additional moderate rehabilitation funding for the Regent

Street Apartments in Philadelphia. Rosenthal’s company had

at first acquired only five of six buildings on a block and had

obtained federal funding to upgrade units in those buildings.

After the company bought the sixth building, it sought

additional moderate rehabilitation funds to upgrade the 25

units in that building. Sankin testified that he contacted Dean

to ask if “there was any possibility of receiving Mod Rehab

funding for this housing authority and this property.”

Rosenthal testified that he met with Dean to “make [a] case

for the ... additional Section Eight grants [he] needed” for

the Regent Street project. A letter dated July 16, 1985, from

Dean to Rosenthal informed him that “all Mod-Rehab units

have been committed for Fiscal Year 1985.” Dean also

expressed her willingness to “discuss [the] Regent Street

LT Tn aT

ER al) EAE AER SE PIE A REE RIL, hy: SIGE GER IO ERR AT ETAL OV BAL HN TM

23a

Project” near the beginning of the next fiscal year, but

cautioned that “competition for these units is very intense.”

Two internal Department documents dated September and

November 1985 indicate that the Department allocated funds

to rehabilitate 12 and 13 units to the Philadelphia Housing

Authority. Dean’s name appears on neither of these internal

documents. Although the Department official responsible for

releasing federal funds to the field did not know whether

these documents described funds that in fact went to the

Regent Street project, the project ultimately received

moderate rehabilitation funding — enough for 13 units in

1985 and for 13 units in 1986. Sankin said that Dean

notified him about the funding award.

The evidence on the Regent Street project is insufficient

to show that Dean conspired with Sankin to direct funding to

the project. Connecting Dean to the project are only

Sankin’s and Rosenthal’s statements that they discussed with

Dean their desire to obtain federal funds. They did not

testify that Dean told them that the project would receive

funding, and the letter from Dean to Rosenthal mentions only

generally her amenability to discuss funding for the project

at a later time. No internal Department documents connect

Dean to the funding decision. A jury could not reasonably

infer from this sparse evidence that Dean attempted to

facilitate the Department’s funding of the Regent Street

project.

Sankin, together with Thomas Broussard, also worked as

a consultant for the Alameda Towers project, a housing

development in Puerto Rico. Funds became available for the

project after the Department withdrew money allocated to

rehabilitate around 600 units in other Puerto Rican housing

developments because of improprieties regarding the funding

of those projects. After learning of the unexpected

availability of moderate rehabilitation funds in Puerto Rico,

Sankin asked Dean if he could solicit a client to compete for

the funding. According to Sankin, Dean did not think him

24a

“experienced enough to work with this program” and

suggested he team up with someone more seasoned in

Department matters, such as Broussard.

Sankin and Broussard joined forces, and the two began

looking for a development project that would qualify for the

funds allocated to the Puerto Rico housing authority.

Ultimately, in October 1985, Sankin and Broussard entered

into an agreement with Cleofe Rubi and Eduardo Ballori.

Broussard told Rubi and Ballori that he had “received

assurances from people high up in HUD who were decisions

makers ... that this kind of an application would be favorably

looked upon” and that he “thought we could get 150 units

without any difficulty based on that application.” According

.o Rubi, Broussard claimed that funds to rehabilitate “150 of

those units [had been] assigned to him by the Secretary’s

office and by Mrs. Debbie Dean.”

Rubi and Ballori agreed to pay Sankin and Broussard

$100,000 each upon the granting of funding sufficient to

rehabilitate 300 units in the Alameda Towers development.

The Department funded the Alameda Towers project, and

Sankin and Broussard each received $75,000. Rubi testified

that neither Broussard nor Sankin agreed to do any work in

exchange for receiving these payments, but that he simply

“bought” the right to receive moderate rehabilitation funding

from them.

Both Sankin and Broussard testified to Dean’s

involvement in the Alameda Towers funding decisions.

Broussard contacted Dean after Sankin approached him about

doing business in Puerto Rico. In this conversation, the first

of 20 to 25 telephone calls between Dean and Broussard,

Dean “basically indicated to [Broussard] an application for

approximately 150 units, maybe as many as 200 units would

be looked upon favorably.” In a letter postmarked June 10,

1985, Broussard wrote Dean that the Department’s regional

administrator for Puerto Rico was “putting [him] in contact

with a group in old San Juan that is working on units.”

ener ceniiisnatimbeneammnees

25a

After meeting with Rubi and Ballori, Broussard testified that

he spoke with Dean, to “give her the details of [the]

application.” According to Broussard, Dean was pleased

with the proposal and she “indicated that when it came up

for approval it would have her support and that [Broussard]

should count on getting at least 150 units.” From

Broussard’s testimony and his letter to Dean, we find the

jury could reasonably have concluded that Dean used her

position at the Department to facilitate funding for the

Alameda Towers project.

As additional evidence of overt acts taken in furtherance

of the conspiracy charged in Count Two, the government

linked Dean to Department decisions regarding the Foxglenn

and Eastern Avenue projects. Sankin collaborated with

Shelby, a political consultant also named as a co-conspirator

in the first conspiracy count, to obtain moderate

rehabilitation funding for these projects. Sankin wanted to

work with r person on Department consulting matters

ntact: ane that his direct involvement in Department

matters might appear improper, given his close friendship

with DeBartolomeis. Sankin testified that Dean referred

Shelby to him. Shelby’s job was to “Work with the officials”

at the Department, while Sankin dealt with the developer and

the local housing authorities. With this division of

responsibilities, Sankin’s communication with Dean regarding

the projects was limited, although he said “she certainly

knew that [Sankin] was working with Rick Shelby and Mr.

Shelby would ask her about [Foxglenn] and [Sankin]

discussed it with her from time to time as well.”

Shelby testified that Dean was his primary Department

contact for the Foxglenn and Eastern Avenue projects, but

that he also met with R. Hunter Cushing and, on the

Foxglenn project, DeBartolomeis. For each project, Shelby

met with Dean three or four times and spoke with her on the

phone. An employee who reported to Dean in 1986 testified

that Dean brought Shelby into her office and told her “to

26a

take good care of him.” The Foxglenn project was awarded

moderate rehabilitation funding, and Shelby and Sankin each

received $110,000 for their services. Shelby and Sankin

were also paid $57,000 and approximately $20,000,

respectively, for their work on the Eastern Avenue

development, less than the sum for which they had initially

contracted because the developer who hired them as

consultants did not receive funding. Shelby confirmed that

he received these consulting payments because he had

“access to high-ranking government officials,” of whom

Dean was one.

We believe the evidence connecting Dean to the

Foxglenn and Eastern Avenue projects is too tenuous to

support a jury conclusion that Dean, Shelby and Sankin

conspired with regard to these projects. Nothing shows that

Dean had anything to do with the Department’s decisions to

award or not to award funding to these projects. The

government’s evidence simply shows that Dean met with

Shelby and Sankin and that she discussed the Moderate

Rehabilitation Program at these meetings. No evidence

directly links Dean to any Department decision, favorable or

unfavorable, made regarding these projects.

In conclusion, the evidence relating to the Necho Allen

Hotel and the Alameda Towers development was sufficient

to establish that Dean knowingly participated in a conspiracy

to facilitate decisions favorable to the developers of these

projects, and thus to Sankin. The evidence on the Regent

Street, Eastern Avenue and Foxgienn projects does not

support Dean’s conviction. As with Count One, see supra p.

651, we sustain Dean’s conviction, but remand the case so

that the trial court may reconsider Dean’s sentence in light

of our decision.

3. Counts Three and Four

Count Three charged Dean with conspiring with Louis

Kitchin, another Department consultant, to defraud the

27a

United States, charges paralleling the allegations of Counts

One and Two. The government supported this charge with

evidence linking Dean and Kitchin to funding decisions made

regarding four projects: Heritage Village in Atlanta, the

Cutlerwood and Springwood Apartments in Miami, and the

Woodcrest Retirement Center in San Diego. In addition,

Count Three accused Dean and Kitchin of conspiring to

violate 18 U.S.C. § 201(c)(1)@), a bribery statute, because

Dean accepted $4,000 from Kitchin. Count Four of the

indictment charged Dean with violating 18 U.S.C.

§ 201(c)(1)(B). We hold that the evidence was sufficient to

support a conviction on both counts.

Before he began working on Department matters in April

1986, Kitchin was a political consultant and campaign

manager. Kitchin knew Dean through mutual political

connections before she began working at the Department.

Kitchin described Dean as “the most knowledgeable person”

at the Department and admitted that he and Dean had

discussed his desire to obtain Moderate Rehabilitation

Program funds for his clients’ projects. Jack Jennings,

Kitchin’s business colleague, testified that Kitchin would

“talk with Debbie to try to get mod rehab units, and on

several occasions, [Kitchin] told [Jennings] that he was able

through talking to her to get the mod rehab uuiis.” Dean’s

secretary testified that at some time Dean might have

instructed her to tell Kitchin that moderate rehabilitation

funds were “coming,” in response to an inquiry from

Kitchin.

At trial, Kitchin acknowledged approaching Dean on

behalf of his Atlanta client, Nick Bazan, and explained that

Bazan wanted to get funding to rehabilitate 200 units in

Atlanta. According to Kitchin, Dean told him “that number

for Atlanta could be done.” Bazan, the Atlanta developer,

testified that Kitchin said he “would be able to obtain some

Mod Rehab units” because “he had a friend, Debbie Dean ...

and that he could talk to her ... or that office ... or he knew

28a

people in Washington.” Bazan also said Kitchin told him

Kitchin planned to “have lunch with Debbie Dean ... to talk

to her about obtaining the ... units.”

Following Kitchin’s advice, Bazan had an Atlanta public

housing authority sign a letter formally requesting moderate

rehabilitation funding, which Bazan delivered to Kitchin.

Less than a week later, on October 30, 1986, the Department

allocated to the Atlanta housing authority enough funding to

rehabilitate 200 units. Ultimately, however, the housing

authority did not award funding to the Heritage Village

project. Since the contract between Bazan and Kitchin

provided that Bazan would pay Kitchin only if the project

were funded, Kitchin received nothing for what he had done

in connection with the Heritage Village project.

In addition to Kitchin’s and Bazan’s testimony, two

documents connect Dean to the Heritage Village project.

The first showed that at some point Dean sent a handwritten

list of nine different “Mod Rehab” projects, noting the

number and types of units for each project, to the Federal

Housing Commissioner. The list included “City of Atlanta,

Ga. Dept. of Com. Dev.” with the notation “200 2 bdrms.”

At the bottom of the list, Dean wrote: “Let me know when

in action so I can call OMB. Very Important!” The second

piece of evidence linking Dean to the Heritage Village

project is a January 20, 1987, memorandum from Kitchin to

Dean asking that the Department characterize Bazan’s

application as involving a refinance, rather than a purchase,

transaction. At the bottom of Kitchin’s memorandum, Dean

wrote “Please see this through.”

From this evidence, a reasonable juror could conclude

that Dean collaborated with Kitchin to attempt to direct

moderate rehabilitation funding to the Heritage Village

project. The government presented evidence that Kitchin

claimed he could get funding through Dean. Dean took

action on a memorandum sent to her by Kitchin regarding the

Heritage Village development. There is evidence showing

a a eT ET

29a

that Dean was responsible for sending funding for the

rehabilitation of 200 units to the Atlanta housing authority.

That Bazan, Kitchin’s client, did not receive this funding

does not alter our conclusion that the evidence was sufficient

to show a conspiracy. The conspiracy, rather than the

accomplishment of its objectives, is the gravamen of this

offense. United States v. Evans, 572 F.2d 455, 483 (Sth

Cir.), cert. denied, 439 U.S. 870, 99 S.Ct. 200, 58 L.Ed.2d

182 (1978); cf. United States v. D’Amato, 39 F.3d 1249,

1257 (2d Cir. 1994).

As to the Cutlerwood and Springwood Apartments,

Kitchin testified that he went “through the same process” that

he followed for Heritage Village. He said he discussed with

Dean “the units going to Miami” and that Dean replied

“she’d do what she could to help.” Claude Dorsy, vice

president of First Florida Equities, Ltd., testified that his

company agreed to pay Kitchin $1,000 for each apartment

unit for which it received moderate rehabilitation funding.

First Florida Equities paid Kitchin $203,000 when the

Department allocated the Dade County housing authority

funding to rehabilitate 203 units. The only piece of

documentary evidence linking Dean to the Cutlerwood and

Springwood projects is a list, in her handwriting, of sixteen

projects. Next to “Metro Dade” is the notation “letter” and

the figure “203,” broken down as “153-1 BR, 48-2 BR, 2-0

BR.”

Again, we find this evidence sufficient to constitute an

overt act in furtherance of the conspiracy charged in Count

Three. Under Department regulations, decisions whether to

fund a specific moderate rehabilitation project were to be

made by public housing authorities, not Department officials.

24 C.F.R. §§ 882.503-882.504 (1982). Dean’s handwritten

note recording precisely the number of units for which

Kitchin’s client wanted funding suggests that she and Kitchin

conspired to violate these provisions. From this note, Dean’s

ties to Kitchin, and Kitchin’s testimony that he had discussed

30a

the project with Dean, a reasonable jury could conclude that

Kitchin and Dean had conspired to defraud the Department

by directing moderate rehabilitation funds to Kitchin’s client.

The final project involved in Count Three was the

Woodcrest Retirement Center in San Diego, a development

backed by Jack K. Jaynes. The lender on the project —

Dean Witter — hired Kitchin to iron out problems the

Woodcrest venture had experienced in its quest for moderate

rehabilitation funds. These problems were significant. By

January 1987, the Woodcrest application for funding had

been denied moderate rehabilitation funding at three levels of

the Department — the local Los Angeles office, the San

Francisco regional office and the central office. Denial of

the application was based on the conclusion that market

conditions for retirement centers in San Diego would not

support the kind of development Jaynes proposed.

According to Kitchin, he contacted “[e]veryone from the

Los Angeles HUD office to San Francisco and finally to

Washington.” His contacts in Washington included Dean.

In a handwritten note dated December 30, 1986, Dean asked

the Federal Housing Commissioner [Thomas Demery] to

“please look into” the denial of the Woodcrest proposal,

because “an independent analysis seems in order.”

A member of the Federal Housing Commissioner’s staff

sent a memorandum to Dean on February 5, 1987.

- According to the memorandum, the “[djecision on Jaynes

look[ed] OK.” Dean wrote back: “Could you be more

specific about Jaynes. What does ‘OK’ mean exactly? Will

we do the Hdqs study?” Another memorandum from the

staff member followed. His office had analyzed the market

for retirement centers according to a corrected method

proposed by the developer. Under the modified analysis, the

data supported the developer’s conclusion that the market

would support the Woodcrest project. Dean rejoined: “If

we have a way to do it — why can’t we?” By May 21,

1987, the Department had concluded that the proposal

3la

warranted “reconsideration” and that the sponsor should be

told to submit a “firm commitment application” to the Los

Angeles office.

This evidence is sufficient to show that Dean conspired

with Kitchin to use her influence at the Department to

facilitate a decision favorable to Kitchin’s client. Kitchin

testified that he contacted Dean on behalf of his clients who

had business with the Department. In documents that refer

by name to the Woodcrest proposal, Dean twice asked for

another analysis of the market conditions for San Diego

retirement centers. The Department reevaluated the

proposal. A reasonable jury could conclude that Dean — in

violation of regulations prohibiting Department officials from

making funding decisions for specific projects, 24 C.F.R.

$§ 882.503-882.504 (1982) — was behind the Department’ s

reversal of its opinion on the project, a decision that directly

benefited Kitchin and Kitchin’s client.

The evidence also supports the jury’s finding that Dean

violated and conspired to violate 18 U.S.C. § 201(c)(1)B),

which is set forth in the margin.* At trial, both Dean and

Kitchin admitted that Dean had accepted Kitchin’s check for

$4,000 in April 1987. Beyond this, Dean’s and the

government's versions of events diverge. According to

Dean, Kitchin wanted to buy an apartment in the Watergate

building, and she had agreed to help him find and decorate

an apartment for $2,000. The rest of the money was to pay

for furnishings for the apartment. Dean said that in June

1987, Kitchin told her he no longer wanted to buy a

* 18 U.S.C. § 201(c)(1)(B) provides: Whoever ... otherwise than

as provided by law for the proper discharge of official duty ...

being a public official ... directly or indirectly demands, seeks,

receives, accepts, Or agrees to receive or accept anything of value

personally for or because of any official act performed or to be

performed by such official ... shall be fined under this title or

imprisoned for not more than two years, or both.

32a

Washington apartment, whereupon she immediately wrote

him a check for $4,250. Although Dean’s check register

indicated she had written a $4,250 check to Kitchin on June

15, 1987, she acknowledged that on that date there was not

enough money in her account to cover the check. Kitchin

never cashed the check, although Dean said she repeatedly

asked him to do so. Dean said she gave Kitchin $500 in

cash on two occasions, as partial repayment of the $4,000.

The government’s evidence undercuts Dean’s story. At

trial, Kitchin characterized the payment to Dean as a loan,

testifying that he gave her the money because she was

undergoing her Senate confirmation hearings and was

“financially ... in some stress.” Bearing out this description

of the payment, Kitchin noted “Loan” on the check he gave

Dean. Moreover, the government’s evidence showed that

Dean needed a loan at this time. When she deposited

Kitchin’s check on May 6, 1987, her account was overdrawn

$260.53, her bank had charged her account for insufficient

funds four times since April 28, 1987, her April mortgage

payment was late, and she owed $4,882.87 on a credit card.

Kitchin’s business colleague, Jack Jennings, testified that

Kitchin told him Dean “had purchased some furniture and

that she needed around $4,000 ... and that he was thinking

about giving her the money.” When Jennings asked whether

Dean was going to pay the money back, Kitchin responded,

“If she pays me back, she pays me back. If she doesn’t, she

doesn’t.” Later, Kitchin told Jennings he had given Dean the

money. Kitchin informed Jennings that, after the bank

returned the cashed check to him, he had “either destroyed

the check or hidden it.” Kitchin’s testimony about whether

Dean had paid him back any portion of the $4,000 was

inconsistent. On direct examination, he said that she had not

paid him anything, but on earlier occasions he said he

thought she had paid him back part of the money.

The evidence is sufficient to sustain Dean’s convictions

on both Counts Three and Four. Dean certainly accepted the

—S ee

33a

money, and the jury could reasonably have concluded from

the evidence at trial that she had never paid it back.

Moreover, in light of the evidence that Kitchin and Kitchin’ s

clients had benefitted from Dean’s efforts at the Department,

the jury was entitled to find that Dean had accepted the

money in exchange for her performance of “official acts. ”°

B. Perjury and 18 U.S.C. § 1001 Violations

The other eight counts in the indictment arise from

Dean’s testimony on August 6, 1987, before the Senate

Committee on Banking, Housing and Urban Affairs

regarding her nomination for Assistant Secretary for

Community Planning and Development. Had the Senate

confirmed Dean to this position, she would have advised the

Department Secretary on community and economic

development programs. Counts Five, Seven, Nine, and

Eleven allege that Dean committed perjury in violation of 18

” According to the indictment, the object of the conspiracies

alleged in Counts One, Two and Three was not only to defraud the

United States, but also to violate 18 U.S.C. § 1001, which

prohibits the concealment of material facts by “any trick, scheme,

or device” in matters “within the jurisdiction of any department or

agency of the United States.” In arguing that the evidence was

insufficient to support her convictions on these counts, Dean draws

no distinction between these two objects. The government alludes

to the § 1001 aspect of the conspiracies only in a footnote. Brief

for United States at 17 n.5. While § 1001 may encompass false

statements in “myriad governmental activities,” United States v.

Rodgers, 466 U.S. 475, 480, 104 S.Ct. 1942, 1946, 80 L.Ed.2d

492 (1984), there is no need to decide whether the evidence

relating to Counts One, Two and Three also supports a finding that

Dean conspired to violate § 1001. Even if it did not, Dean’s

convictions on these counts would stand. A general jury verdict

on a multiple object conspiracy is valid so long as the prosecution

submits sufficient proof of one object of that conspiracy. Griffin

v. United States, 502 U.S. 46, 57, 112 S.Ct. 466, 473, 116

L.Ed.2d 371 (1991).

34a

U.S.C. § 1621 for statements she made before the Senate

committee. For each of the allegedly perjurious statements,

the government also charged Dean — in Counts Six, Eight,

Ten, and Twelve — with violations of 18 U.S.C. § 1001. In

the words of the indictment, Dean violated § 1001 because

she knowingly made these statements pursuant to “a trick,

scheme and device to falsify, conceal and cover up material

facts.”

We reverse Dean’s convictions on Counts Six, Eight,

Ten, and Twelve. Section 1001 criminalizes the concealment

of material facts only in matters “within the jurisdiction of

any department or agency of the United States.” 18 U.S.C.

§ 1001. After oral argument in this case, the Supreme Court

reversed United States v. Bramblett, 348 U.S. 503, 509, 75

S.Ct. 504, 507, 99 L.Ed. 594 (1955), which had interpreted

“department,” as used in § 1001, to include the executive,

judicial and legislative branches of the federal government.

Hubbard v. United States, --- U.S. ----, ----, 115 S.Ct. 1754,

1765, 131 L.Ed.2d 779 (1995). In Hubbard, the Court

narrowed the reach of § 1001 to matters withix the executive

branch, a coverage consistent with both the common usage

of “department” and that term’s definition in Title 18. Id.

convicted on Counts Six, Eight, Ten, and Twelve for

statements she made before Congress.'® Her convictions on

these counts therefore cannot stand.

'° By contrast, the government supported Counts One, Two and

Three, in which it claimed that Dean had conspired to violate 18

U.S.C. § 1001, with evidence of actions Dean took as a

Department official. This conduct was plainly within the

jurisdiction of an executive agency — the Department of Housing

and Urban Development. See supra p. 658 n.9.

35a

1. Count Five

Count Five is based on the following exchange between

Dean and Senator William Proxmire, Chairman of the

Committee. Senator Proxmire asked Dean:

We received a number of complaints that,

in 1987, this year, there has been no

notification of funds availability to regional

offices. This is troublesome because this

notification is important to promote

applications so that all worthy candidates

have a chance to apply and that HUD has

the chance and the time to rank the

applicants. Instead, it is suggested that

informal solicitations and unawarded

applications from the past are guarded by

you, and that you personally go through the

selections, excluding review by the

appropriate staff experts. Furthermore, it is

Suggested that developers have personally

come to you asking for awards. Now, as

you know, the proper procedure is for the

HUD Washington office to deal with

housing authorities and for them to deal

with developers. In some cases, the

housing authorities have subsequently

alerted HUD that these funds aren’t even

needed. How do you respond to that?

Dean answered:

Well, to my knowledge, we do not put out

a notice of funding availability on the mod

rehab program. I have never seen us do

one since I’ve been at HUD. The program,

instead, works that the field offices receive

applications from public housing authorities.

They are rated and ranked, sent to the

36a

regional administrator, who forward [sic]

them to the Assistant Secretary for

Housing, Federal Housing Commissioner.

The Assistant Secretary for Housing puts

together the applications and, with the

Deputy Assistant Secretary for Multifamily

Housing, comes to some conclusion as to

where they believe these funds could best

be used. Once again, they bring it to a

panel of people, which is the Under

Secretary, the executive assistant to the

Secretary and the Federal Housing

Commissioner. That panel goes solely on

information provided by the Assistant

Secretary for Housing. He gives us the

information and the three of us make

recommendations to the Secretary, who is

the person who approves those units.

The italicized sentence in Dean’s response is the foundation

for the Count Five perjury charge.

A witness testifying under oath violates 18 U.S.C. §

1621, which is set out in the margin,'' if she willfully gives

false testimony on a material matter. United States v.

Dunnigan, --- U.S. ----, ----, 113 S.Ct. 1111, 1116, 122

L.Ed.2d 445 (1993). Testimony resulting from confusion,

mistake or faulty memory cannot support a perjury

conviction. Jd. Dean claims that she did not commit perjury

because she answered “the question that was essentially

18 U.S.C. § 1621 provides: Whoever — (1) having takem an

oath before a competent tribunal, officer, or person, in any case in

which a law of the United States authorizes an oath to be

administered, that he will testify ... truly ... and contrary to such

oath states or subscribes any material matter which he does not

believe to be true ... is guilty of perjury and shall ... be fined

under this title or imprisoned not more than five years, or both....

37a

asked — whether she made [moderate rehabilitation funding]

decisions alone.” Brief for Appellant at 37.

We disagree with Dean’s characterization of Senator

Proxmire’s question. The thrust of the Senator’s inquiry was

whether Dean played a part in any moderate rehabilitation

funding decision in which Departmental regulations were not

followed. Specifically, he wanted to know whether Dean had

violated Department regulations by personally ensuring that

moderate rehabilitation funds went to specific developers,

despite regulations requiring local public housing authorities

to allocate awards to developers. In essence, Dean denied

Senator Proxmire’s intimations. She asserted that the

Department, acting through a three-person panel of which

she was a member,” allocated moderate rehabilitation funds

to public housing authorities based “solely” on information

supplied by the Assistant Secretary for Housing/Federal

Housing Commissioner.

But at trial the government presented evidence belying

Dean’s portrayal of the program. A Department official’s

description of a panel meeting is illustrative. J. Michael

Dorsey, Department General Counsel from 1987 to 1989,

attended a panel meeting in early 1987. At the meeting,

Demery, the Federal Housing Commissioner at the time,

“came with a list ... of cities with a number of units and we

went through the list.” According to Dorsey, Dean

commented on some of the applications, identifying “people

who had called her about specific projects.” Demery

testified that he and Dean participated in two panel meetings

‘* This panel first met in March 1987. It comprised three

members: Dean, Thomas Demery, who was the Assistant Secretary

for Housing/Federal Housing Commissioner from October 1986 to

1989, and either the Department’s Under Secretary or General

Counsel. Its purpose was to review public housing authorities’

applications for moderate rehabilitation funds and to decide how to

allocate those funds.

38a

in 1987. Before the meetings, he and Dean discussed public

housing authorities that had “come to [their] attention.” The

two would then “come to a consensus” regarding funding.

Factors influencing their “deliberative process” included

“any contacts on behalf of the [authority’s] requests.” From

this evidence, the jury was entitled to find that the panel did

not base its decisions “solely on information provided by the

Assistant Secretary for Housing.” We therefore sustain the

jury’s conviction of Dean on Count Five.

2. Count Seven

Count Seven charged Dean with perjury, in violation of

18 U.S.C. § 1621. This charge stemmed from the rest of

Dean’s reply to Senator Proxmire’s question. She continued:

I have never given or approved or pushed

or coerced anyone to help any developer.

Those funds go directly to the public

housing authority. As a matter of fact, I

have regular meetings with public housing

authorities where I tell them that they

should be dealing directly with developers.

A lot of times, public housing authorities

send developers to HUD. And they meet

with people all over the building. IJt’s a

tremendous waste of time, and I let them

know that; because those funds go to the

public housing authorities.

The two italicized sentences are the bases for the Count

Seven perjury charge.

We sustain the jury’s verdict finding Dean guilty on

Count Seven. The government established that Dean

participated in three conspiracies in which she used her

influence at the Department to make sure moderate

rehabilitation funds went to favored projects and developers.

Given this evidence, the jury could reasonably have

concluded that Dean lied when she said she had never

a athieltanaiiacaaieanaicinaiimil

39a

“help[ed] any developer” and that developers who contacted

her wasted their time because public housing authorities

decided which projects to fund.

3. Count Nine

Count Nine arises from the following colloquy between

Dean and Senator Proxmire:

Senator Proxmire: Now, Ms. Dean, can |

you ell us about your involvement in the

deployment of section 8? That’s the

moderate rehabilitation funds for a project

known as Baltimore Uplift One?

According to the Washington Post in a

story dated October 1984, there was an

abuse of some $17 million; according to

HUD staffers in Baltimore, these funds

came from the Secretary’s discretionary

fund. |

And since you worked closely to the

Secretary at the time, what can you tell us

about that problem?

Dean: Senator, could you give me the date

in?

Seaator Proxmire: Yes. The date is

October 1984. :

Dean: I was executive assistant to the

Secretary at that time. I’ve never heard of

Baltimore Uplift One. It was a moderate

rehabilitation project?

Senator Proxmire:. What’s that?

Dean: You said it was in the mod rehab

rogeam?

enator Proxmire: Mod, section 8,

moderate rehabilitation. That’s right.

Dean: There are two explanations why I

would not know it. I might not know the

name or those funding decisions were made

prior to my appointment in June, and the

funds were not released from the

40a

om Department until October. But I’ve never

heard of Baltimore Uplift One.

The two italicized sentences, in which Dean denies having

heard of the Baltimore Uplift One project, are the foundation

of the Count Nine perjury charge.

To support her argument that she responded truthfully to

Senator Proxmire’s question about the Baltimore Uplift One

project, Dean argues that evidence supports both of the

explanations she offered at the Senate hearing for her

unfamiliarity with the project. First, she points to

DeBartolomeis’ testimony that the Department made the final

decision to allocate moderate rehabilitation funds to the

Baltimore Uplift project in May 1984, before Dean’s June

24, 1984, appointment to the position of Executive Assistant

to Secretary Pierce. Second, Dean relies on testimony from

James Baugh, an employee in the Public and Indian Housing

section of the Department. Baugh participated in the

administration of the Moderate Rehabilitation Program until

late 1983 or early 1984. Although Baugh was familiar with

“the concept of uplift” programs, he had never heard of

Baltimore Uplift One. Apparently, Dean reasons that since

Baugh had never heard of the project, one could conclude

that she had never heard of it either.

Dean’s evidence, however, does not overcome the

-government’s proof that she had heard of the project.

DeBartolomeis testified that he was familiar with the

Baltimore Uplift One project, a “scattered type multi-family

project that had trouble getting finished.” He knew Dean

was involved in the project because she “talked to [him]

about it.” Janice Golec, special assistant to Secretary Pierce

from 1983 to 1985, testified that Dean asked her to attend a

meeting regarding the project and that Dean gave her “a

brief overview of what the project was and what the issues

were.” From this evidence, a jury could rationally have

concluded that Dean did not tell the truth at the Senate

hearing when she said she had never heard of Baltimore

—————————

4la

Uplift One. We therefore do not disturb the jury’s

conviction of Dean on Count Nine.

4. Count Eleven

The final perjury count on which the jury convicted Dean

is based on the last statement she made in response to

Senator Proxmire’s inquiry about the Baltimore Uplift One

project. After saying “But I’ve never heard of Baltimore

Uplift One,” Dean continued:

As a matter of fact, no moderate

rehabilitation units that I know of, unless

they were sent directly by the Secretary,

have ever gone to my home State of

Maryland, simply for that reason — that I

sat on the panel.

The jury found that in making this statement, Dean

committed perjury.

We reverse Dean’s conviction on Count Eleven. The

government claims Dean’s statement represented her denial

of having ever participated in a moderate rehabilitation

funding decision for a Maryland project. Brief for United

States at 39-40. But that is not literally what she said.

While Dean had participated in decisions for Maryland

projects, her testimony indicated that those projects did not

receive special consideration “simply” because Dean sat on

the panel. Dean’s statement could have been true, and, in

any event, the government never proved at trial that she

showed particular favoritism to Maryland projects. Although

it may be, as Mark Twain said, that “[o]ften, the surest way

to convey misinformation is to tell the strict truth,” a

Statement that is literally true cannot support a perjury

conviction. Bronston v. United States, 409 U.S. 352, 360, 93

S.Ct. 595, 600, 34 L.Ed.2d 568 (1973).

42a

In addition to challenging her conviction for insufficient

evidence, Dean contends that the trial court committed

reversible error in several of its rulings. We address first

her complaint that the trial court improperly quashed two

defense subpoenas. Next, we consider her claim that the

prosecutor’s conduct at trial requires reversal of her

conviction.

A. The Quashed Subpoenas

Dean argues that the trial court committed reversible

error in quashing subpoenas she served on Senator Proxmire

and Bart Naylor, a Senate committee investigator. The Sixth

Amendment gives a defendant in a criminal proceeding the

right to “have compulsory process for obtaining witnesses in

his favor.” U.S. CONST. amend. VI. This right is not

violated by “the mere absence of testimony.” United States

v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440,

3446, 73 L.Ed.2d 1193 (1982). Rather, the defendant must

make “some plausible showing of how [the witnesses’]

testimony would have been both material and favorable to his

defense.” Jd.; see Washington v. Texas, 388 U.S. 14, 16,

87 S.Ct. 1920, 1921, 18 L.Ed.2d 1019 (1967). A witness’

testimony is material if its absence actually prejudiced the

defendant’s ability to mount a defense. United States v.

North, 910 F.2d 843, 889 (D.C. Cir. 1990), cert. denied,

500 U.S. 941, 111 S.Ct. 2235, 114 L.Ed.2d 477 (1991).

Dean proposes two ways in which Senator Proxmire’s

and Bart Naylor’s testimony would have assisted her defense,

neither of which is persuasive. Their testimony, as she sees

it, would have disproved the charge that she intentionally

misled the Senate by testifying that the panel allocating funds

to public housing authorities relied “solely on information

provided by the Assistant Secretary for Housing,” the

statement at issue in Count Five. Brief for Appellant at 42.

Since her job at the Department required her to “make sure

43a

that Congressional input was properly considered” in

moderate rehabilitation funding decisions, she could not have

intended “to conceal the fact that she provided incidental

information, such as Congressional input, to the panel.” Jd.

By showing Senator Proxmire’s familiarity with her liaison

function, Dean claims she could have established that she did

not intend to speak falsely when she said the panel relied

only on information provided by the Assistant Secretary of

Housing. Id.

Dean’s theory appears to be that if she had testified,

“That panel goes solely on information provided by the

Assistant Secretary for Housing, as well as on Congressional

information I provide,” she would not have committed

perjury. At best, Senator Proxmire might have added this

twist to the statement she made at the Senate hearings. But

even if this is what she meant, the jury could still have found

from the evidence that she intentionally testified falsely. It

is up to the jury “to determine that the question as the

defendant understood it was falsely answered in order to

convict.” United States v. Chapin, 515 F.2d 1274, 1280

(D.C. Cir.), cert. denied, 423 U.S. 1015, 96 S.Ct. 449, 46

L.Ed.2d 387 (1975). Senator Proxmire plainly wanted to

find out whether Dean had bypassed federal regulations and

had dealt directly with developers in administering the

Moderate Rehabilitation Program. Dean’s response to the

Senator can be fairly read as a denial of such dealings. The

government presented evidence from which the jury could

conclude that this denial was false. Senator Proxmire’s and

Naylor’s testimony therefore would have not altered the

essential untruthfulness of her statement. It follows that

Dean was not actually prejudiced by the trial court’s

quashing of the subpoenas.

Dean’s second argument is that the Senator’s and

Naylor’s testimony was material to her defense because it

could have established that the Senator’s question lacked a

proper legislative purpose. Brief for Appellant at 43-44.

44a

Whatever the force of her argument,'’ she did not make this

claim to the trial court, her counsel’s vague references to

Senator Proxmire’s “motive ... bias and ... reason to do

what he [did]” and to a “political circus” notwithstanding.

Accordingly, we review the trial court’s failure sua sponte to

consider this argument for plain error — whether it was both

“very obvious and gravely prejudicial.” United States v.

Derr, 990 F.2d 1330, 1333 n.2 (D.C. Cir. 1993). Because

the theory of the relevance of Senator Proxmire’s and

Naylor’s testimony Dean now proposes is far from obvious,

the trial court did not plainly err in not addressing it.'*

B. Alleged Prosecutorial Misconduct

Dean next claims that the trial court erred in not granting

her motion for a new trial because of the prosecutor’s

conduct before and during trial. She argues that the

government violated the obligations to provide her with

exculpatory information, see Brady v. Maryland, 373 U.S.

'? Dean relies on United States v. Cross, 170 F.Supp. 303, 310

(D.D.C. 1959), in which the court held that a “perjury indictment

may not be found on false testimony in response to questions

which are not asked for the purpose of eliciting facts material to

the [legislature’s] investigation, that is, facts sought in aid of the

legislative purpose.” Dean does not explain how Senator Proxmire,

in conducting the confirmation hearing pursuant to Article 2, § 2

of the Constitution, did not act to further a proper legislative

purpose.

“* Dean also argues that the trial court erred in quashing, on

Speech or Debate Clause grounds, a subpoena duces tecum issued

to the Senate Committee. Among the documents Dean sought

were Committee notes on her testimony that were forwarded to the

General Accounting Office and a report from the Comptroller

General indicating there were no inconsistencies between her

statement and the facts. As with Senator Proxmire’s and Naylor’s

testimony, Dean does not demonstrate how her lack of access to

these items actually prejudiced her defense.

45a

83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and that the

prosecutor’s closing argument was impermissible.

1. Brady Issues

Brady v. Maryland, 373 U.S. at 87, 83 S.Ct. at 1197,

requires the prosecution to disclose to an accused exculpatory

information that is both favorable and material to guilt or

punishment. This duty extends to evidence drawing into

doubt the credibility of a witness when the witness’ reliability

may be determinative of guilt or innocence. Giglio v. United

States, 405 U.S. 150, 154, 92 $.Ct. 763, 766, 31 L.Ed.2d

104 (1972). Evidence is material if there is a reasonable

probability that, had the evidence been disclosed, the

outcome of the proceeding would have differed. United

States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383,

87 L.Ed.2d 481 (1985). A reasonable probability is a

“probability sufficient to undermine confidence in the

outcome.” Jd. When the government delays disclosing

exculpatory evidence, the defendant must show a reasonable

probability that an earlier disclosure would have changed the

trial’s result. United States v. Tarantino, 846 F.2d 1384,

1417 (D.C. Cir.), cert. denied, 488 U.S. 840, 867, 109

S.Ct. 108, 174, 102 L.Ed.2d 83, 143 (1988). If a defendant

receives exculpatory evidence “in time to make effective use

of it,” a new trial is, in most cases, not warranted. United

States v. Paxson, 861 F.2d 730, 737 (D.C. Cir. 1988).

Dean points to a number of instances in which the

government was either delinquent in complying with its

Brady obligations or did not comply with Brady at all. First,

despite a June 30, 1992, order from the court to produce

exculpatory evidence, the government did not provide her

with three potentially exculpatory statements from interviews

until August 20, 1993, less than two weeks before jury

selection. Brief for Appellant at 45. At this time, the

government disclosed: (1) Shelby had told the prosecution

that, as far as he knew, Dean did not know of Mitchell’s

involvement in the Park Towers Apartments project; (2)

46a

Kitchin had denied that Dean had provided any personal

favors for him relating to Department business; and (3) the

manager of the Baltimore Uplift One project had said that

Dean was not involved in that project. /d. at 46 n.27.

Second, the government did not identify as exculpatory a

statement from an interview with Shelby indicating that

Shelby had tried to keep Dean from finding out about

Mitchell’s involvement with Park Towers. On the first day

of trial, Dean located this remark in a witness statement

provided by the government pursuant to the Jencks Act, 18

U.S.C. § 3500. Brief for Appellant at 47 n.30. Third, the

government failed to classify as exculpatory certain telephone

messages to Mitchell. Dean claims that these messages

showed Lance Wilson, Dean’s predecessor as Executive

Assistant, was Mitchell’s contact on the Arama project, not

Dean. /d. at 47 n.31. Dean obtained this information

through discovery.

Dean also complains that the government presented

“false evidence” at trial because it introduced a number of

Sankin’s credit card receipts that indicated he had entertained

and given gifts to Dean. On cross-examination, Sankin

stated that he had told counsel for the government that

several of the charge slips introduced into evidence “were

definitively not related to Deborah Dean.” At a bench

conference, government counsel explained that on the

previous day Sankin told him that “he had no specific

recollection” regarding any of the receipts, even the ones

bearing Dean’s name. Observing that the government should

have alerted the court and defense counsel to Sankin’s

statement, the judge gave defense counsel three choices. The

court would either strike the documents, give the jury

cautionary instructions, or defense counsel could simply

cross-examine Sankin and discredit his testimony. Dean’s

counsel opted to continue cross-examination.

We deplore the government’s tardiness in producing the

statements from Shelby, Kitchin, and the manager of the

47a

Baltimore Uplift One project and its failure to identify the

Shelby statement and the telephone messages as exculpatory.

We agree with the district court that the government should

have notified the court and Dean’s counsel of Sankin’s

statement regarding the charge card receipts. Nevertheless,

because Dean has not established that the government’s

dereliction materially prejudiced her defense, she is not

entitled to a reversal of her conviction on any count. Dean

effectively used, or had an opportunity to use, all the

late-disclosed or unsegregated exculpatory evidence at trial.

On cross-examination, Shelby repeated the statements he

made to the government in interviews.'° Shelby said that

when he entered into the agreement with Mitchell he was not

aware of Mitchell’s relationship with Dean and that as far as

he knew, Dean never knew Mitchell received a consulting

fee from any of Shelby’s projects. He admitted that he

intentionally did not tell Dean that he paid Mitchell any

money.

Dean also used Kitchin’s statement effectively. On

cross-examination, Kitchin testified that no one at the

Department — including Dean — did anything for him “that

wasn’t right ... [or that was] corrupt.” Further, the

government’s late production of the exculpatory statement of

the manager of the Baltimore Uplift One project did not

materially prejudice Dean’s defense. Dean had the statement

in time to make use of it. In fact, the manager’s name was

on Dean’s list of potential witnesses on September 7, 1993,

nearly one month before she began presenting her case. That

she chose not to call the manager to testify undermines her

'* Both of Shelby’s statements relate to Dean’s knowledge of

Mitchell’s involvement in the Park Towers Apartments project.

We have already concluded that the evidence relating to this

housing development is not sufficient to constitute an overt act in

furtherance of the conspiracy charged in Count One. See supra p.

649.

48a

claim that this testimony would have affected the outcome of

the trial. Dean also effectively used the phone messages that

the government did not segregate as exculpatory. The

government provided the messages to Dean more than a year

before trial, she placed the documents into evidence at trial,

and argued their significance to the jury. Finally, we think

that whatever prejudice Dean suffered from the government’s

use of the Sankin receipts is of her own making. The trial

court gave Dean’s counsel the choice of striking this

evidence. Instead, he chose to leave it before the jury and

to attempt to undermine Sankin’s credibility by using the

receipts On cross-examination. In short, Dean has not shown

the kind of prejudice necessary to warrant the granting of a

new trial on the basis of Brady violations.

2. Closing Argument

In his closing and rebuttal arguments, the prosecutor

parsed Dean’s six days of testimony. At least thirty-one

times in his arguments, he questioned Dean’s veracity and

described her testimony as lies. Dean points to the following

examples:

What about the defendant’s case? What has

the defendant shown to you in this trial?

Her entire case rests on her credibility, her

believability. The first thing you must ask

yourselves, ladies and gentlemen, is, is the

defendant a credible witness? Did she tell

you the truth?

She lied to you ... She lied in this Court

before you. Having done that, does

anything else make any sense? Can you see

her as being a credible witness?

49a

Based on her lies you should throw out her

entire testimony. Her six days’ worth of

testimony is worth nothing. You can throw

it out the window into a garbage pail for

what it’s worth, for having lied to you. But

why do we keep going? Why do we keep

asking questions? Because it was filtered

with lies. Her entire testimony just kept

changing.

* *£+ & & & &

In order to believe her you have to believe

that John Mitchell is lying.... Jack Brennan

lied to her. Rick Shelby lied to her.

Maurice Barksdale is mistaken. Janet Hale

is mistaken. Andrew Sankin, lied. Lance

Wilson, lied. Linda Murphy, lied. Silvio

DeBartolomeis, _ lied. Philip Winn,

mistaken. Susan Zagame, mistaken.

Thomas Demery lied. Sherrill

Nettles-Hawkins, mistaken. Everybody else

lied or was mistaken, but not her. But

she’s the only one we know who

definitively did lie. Her story is built on a

rotten foundation. It is rotten to the core.

It doesn’t square with common sense. It is

lies piled upon lies. It crumbles to pieces

the minute you look at it.

Dean contends that these and similar comments were

impermissible and require reversal of her convictions.

“Lies” and “lying” are hard words. But this was closing

argument, not a polite social conversation. Dean was

charged with perjury. The prosecutor had every right to

argue that she had not told the truth. He could have told the

jury that the evidence proved Dean had been “untruthful,” or

that she “fabricated her testimony,” or “prevaricated,” or

50a

that she “bore false witness,” “made up her story,” “is not

to be believed,” “violated her oath.” These and many other

words and phrases would have conveyed the same idea as

“lie” and “lying,” perhaps not as forcefully, or, depending

on the prosecutor’s rhetorical skill, perhaps more forcefully.

Still, is there any reason in law why the words “lie” and

“lying” should be banned from the vocabulary of summation,

particularly in cases that turn on the defendant’s credibility?

We conceive of none, so long as the prosecutor sticks to the

evidence and refrains from giving his personal opinion.

Compare Harris v. United States, 402 F.2d 656 (D.C. Cir.

1968); Olenin v. Curtin & Johnson, Inc., 424 F.2d 769

(D.C. Cir. 1968) (per curiam). Other courts have reached

the same conclusion. See United States v. Jacoby, 955 F.2d

1527, 1540-41 (11th Cir. 1992), cert. denied, --- U.S. ----,

113 S.Ct. 1282, 122 L.Ed.2d 676 (1993); Bradford v.

Whitley, 953 F.2d 1008, 1013 (Sth Cir. 1991), cert. denied,

--- U.S. ----, 113 S.Ct. 91, 121 L.Ed.2d 53 (1992); United

States v. Molina, 934 F.2d 1440, 1445 (9th Cir. 1991);

United States v. Peterson, 808 F.2d 969, 977 (2d Cir. 1987);

United States v. Chaimson, 760 F.2d 798, 811 (7th Cir.

1985); United States v. Birges, 723 F.2d 666, 671-72 (9th

Cir.), cert. denied, 469 U.S. 863, 105 S.Ct. 200, 83

L.Ed.2d 131 (1984). Of course, a prosecutor can overdo it.

Whether the prosecutor has struck a foul blow instead of just

a hard one is largely for the district court to decide. Much

depends on context and tone. In this case, to the extent the

prosecutor’s remarks spilled over into expressions of

personal belief, or may have been so perceived by the

jurors — for example, “she’s the only one we know who

definitively did lie” — the district court cured the problem.

The court instructed the jury not to consider the opinion of

counsel about who lied because it was up to the jury alone to

decide who was telling the truth.

Sla

The district court sentenced Dean to concurrent terms of

21 months’ imprisonment on all counts. Dean challenges her

sentence on the grounds that the district court erred in

applying the Sentencing Guidelines to Counts One and Two,

and that the court abused its discretion in adjusting her

sentence on these counts upward 6 levels. (The Guidelines

did not apply to any of the other counts. )'°

We agree with Dean that the district court should not

have sentenced her on Count One under the Guidelines, and

we therefore vacate her sentence on this count. As to Count

Two, we agree with the district court that the Guidelines

applied. Nevertheless, we vacate the sentence on that count

so that the district court may reconsider its upward

adjustment of Dean’s offense level in view of our conclusions

regarding the sufficiency of the evidence. Since it appears

that the district court arrived at the 21-month term imposed

with respect to the other counts on the basis of the Guideline

sentence for Counts One and Two, we vacate the sentences

on those other counts and remand for resentencing (except of

course in regard to Dean’s convictions on Counts Six, Eight,

Ten, Eleven, and Twelve, which we reverse).

The district court sentenced Dean under the Guidelines

on Counts One and Two because it found that the

conspiracies charged in these counts continued after

November |, 1987. A conviction for a conspiracy that began

before November |, 1987, the effective date of the

Guidelines, but continued after that date is subject to the

'*\ The district court sentenced Dean on Counts Three through

Tweive under the sentencing laws in effect before the effective date

of the Guidelines. For each of these counts, the court ordered

Dean to serve twenty-one months’ confinement, to run

concurrently with each other and with the sentences imposed under

Counts One and Two.

52a

Guidelines. United States v. Milton, 8 F.3d 39, 48 (D.C.

Cir. 1993), cert. denied, --- U.S. ----, 115 $.Ct. 299, i30

L.Ed.2d 212 (1994); United States v. Dale, 991 F.2d 819,

853 (D.C. Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 286,

126 L.Ed.2d 236 (1993). As to Count One, the district court

identified three acts of Dean’s alleged co-conspirators that

extended the conspiracy beyond November 1, 1987: a May

11, 1990, letter from Louie Nunn to Aristides Martinez

requesting that Martinez release from escrow Nunn’s fee for

services he performed for the South Florida I development;

Martinez’ authorizing the escrow agent to pay Nunn; and

Nunn’s acceptance of that payment. We have already held

that the evidence relating to the South Florida I project could

not support a jury finding that Dean and her collaborators

engaged in overt acts to further the conspiracy. See supra

pp. 650-51. Even the less demanding preponderance-of-

the-evidence standard, used when factual issues determine

whether the Guidelines apply, Milton, 8 F.3d at 48, has not

been satisfied, for the reasons we have already given.

Because the evidence is not sufficient to show that the

conspiracy continued beyond November 1, 1987, the district

court clearly erred in applying the Guidelines to Dean’s

sentence under Count One and we therefore vacate it. See

United States v. Dale, 991 F.2d 819, 854 (D.C.Cir.), cert.

denied, --- U.S. ----, 114 S.Ct. 286, 126 L.Ed.2d 236

(1993).

The second count is another matter. The district court

found that the conspiracy charged in Count Two continued

after November 1, 1987, because Sankin received payments

for his consulting services after this date. At trial, the

government showed that Sankin received checks for $25,000

from the developer of the Puerto Rican Alameda Towers

project on December 1, 1987, and on March 19, 1990. We

agree that a preponderance of the evidence showed that

Sankin’s receipt of these payments was within the scope of

the conspiracy between Dean and Sankin and was a

53a

reasonably foreseeable consequence of their unlawful actions.

Cf. Milton, 8 F.3d at 48. Accordingly, the district court

correctly used the Guidelines in sentencing Dean on Count

Two.

Nevertheless, we think it appropriate to permit the

district court to reconsider its upward adjustment of Dean’s

offense level in view of our conclusions about the sufficiency

of the evidence on this count.’ We recognize that a

sentencing court may impose a sentence outside the range

established by the applicable guideline if the court finds an

aggravating circumstance not adequately taken into

consideration by the Sentencing Commission in formulating

the Guidelines. UNITED STATES SENTENCING

Applying the 1990 version of the Guidelines, the district court

determined Dean’s total offense level was 16. It assigned Dean a

base offense level of 6 under § 2F1.1, the guideline for fraud and

deceit. It then increased the base offense level to 10, adding 2

levels under § 2F1.1(b)(2) because the offense involved more than

minimal planning and another 2 levels under § 3B1.3 because

Dean had abused a position of public trust. Departing from the

guidelines, the court then added 6 levels to Dean’s offense level,

giving her a total offense level of 16.

The district court arrived at the 6-level upward departure by

looking to § 2C1.2(b)(2)(B), the guideline for gratuity offenses,

which provides for an 8-level increase for officials holding a high

level decision-making position. Taking into account the 2-level

increase for Dean’s abuse of position of public trust, the court only

adjusted Dean’s sentence upward by 6 levels. The court found the

increase necessary because Dean’s conduct “along with others at

HUD caused a major scandal that certainly eroded the public

confidence in HUD, if not in the federal government.” Dean’s

criminal history category was 1. The corresponding sentencing

range under the 1990 Guidelines was 21-27 months’ imprisonment.

UNITED STATES SENTENCING COMMISSION, GUIDELINES

MANUAL § SA (Nov. 1990).

54a

COMMISSION, GUIDELINES MANUAL § 5K2.0, p.s.

(Nov. 1990). Nevertheless, such a departure is “warranted

only if the factor is present to a degree substantially in excess

of that which is ordinarily involved in the offense.” Jd. In

light of our ruling that much of the government's evidence of

overt acts in furtherance of the conspiracy alleged in Count

Two was insufficient, the district court should reassess

whether circumstances still warrant its upward departure."*

We also vacate Dean’s sentences on Counts Three, Four,

Five, Seven, and Nine. The district court apparently wished

to sentence Dean to concurrent terms of equal length on all

counts. Because Dean’s sentence on Count Two may change

after the district court reconsiders its decision to adjust

Dean’s sentence upward, we think it appropriate to permit

the court to resentence Dean on these counts as well. See

United States v. Wright, 12 F.3d 70, 75 (6th Cir. 1993).

In conclusion, we reverse Dean’s convictions on Counts

Six, Eight, Ten, Eleven, and Twelve. We affirm her

convictions on Counts One, Two, Three, Four, Five, Seven,

and Nine, but vacate her sentences on those counts and

remand to the district court for resentencing.

So ordered.

'* Although the Guidelines do not apply to Count One, in

resentencing Dean on this count, the district court should similarly

bear in mind that much of the government’s evidence was

insufficient to show that Dean committed overt acts in furtherance

of the conspiracy alleged in the indictment.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.