# Opposition Brief — Dean v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1996
- **Citation:** 516 U.S. 1184

## Text

(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
V.

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)

ul

TABLE OF CONTENTS

Page
QUESTIONS PRESENTED ................ i
TABLE OF AUTHORITIES ................. ili
| I
GG
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.

2

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

3

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

4
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

5

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)

6

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.

7

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:

8

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

9

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.

10

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

1]

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

12

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

13

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

14

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

15

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.”

J

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

77

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

ia
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

2a

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.

I

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

3a

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

4a

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

Sa

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

6a

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.

ae

Ta

i

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.”

8a

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.

9a

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

j

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

|
ee

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

a

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

i

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 ca

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_0939%3A2. Public record. Not legal advice.