Petition for Writ of Certiorari — Briscoe v. United States
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941461 JAN 17 195
OFECE OF THE OLERK
No.
IN THE
Supreme Court of the United States
October Term, 1994
LEONARD E. BRISCOE,
Petitioner,
V.
UNITED STATES OF AMERICA,
Respondent.
Petition for a Writ of Certiorari to the
United States Court of Appeals
for the District of Columbia Circuit
PETITION FOR A WRIT OF CERTIORARI
BARRY WM. LEVINE
(Counsel of Record)
ELAINE METLIN
GREGORY BARUCH
DICKSTEIN, SHAPIRO
& MORIN, L.L.P.
2101 L Street, N.W.
Washington, D.C. 20037
(202) 785-9700
Counsel for Petitioner
Leonard E. Briscoe
Balmar Legal Publishing Services, Washington, D.C., (202) 682-9800
WYePr
i
]
|
i
QUESTIONS PRESENTED
1. When a grand jury investigation is conducted without
the authorization required by the Ethics in Government Act of
1978, whether the resulting indictment is invalid.
2. Whether an independent counsel under the Ethics in
Government Act of 1978 can voluntarily relinquish authority
and control relating to the prosecution of a matter within its core
mandate to the Department of Justice by authorizing the Depart-
ment of Justice to conduct and control proceedings within that
core mandate.
3. Whether the Fifth and Sixth Amendments to the United
States Constitution, and Federal Rule of Criminal Procedure
7(c)(1), require that a defendant who is charged with giving,
offering, or promising gratuities, in violation of 18 U.S.C.
§ 201(c)(1)(A), must be informed of what the alleged gratuities
were and when they were given, offered, or promised.
ii
LIST OF PARTIES
Leonard E. Briscoe, Petitioner
Maurice David Steier, Defendant-Appellant
Lance Henry Wilson, Defendant-Appellant
United States of America, Respondent
ill
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ............. i
Be rar ee are ii
pr Ps ili
TABLE OF AUTHORITIES ............. Vii
a |
PE 8 8 i'w Fk eK oe ws 2
CONSTITUTIONAL PROVISIONS, STATUTES
AND RULES INVOLVED.............. 2
STATEMENT OF THECASE............ 2
REASONS FOR GRANTING THE WRIT ..... 6
I. THE INDICTMENT IN THIS CASE IS
INVALID BECAUSE THE GRAND
JURY INVESTIGATION AT ISSUE
TOOK PLACE AT A TIME WHEN
THE DEPARTMENT OF JUSTICE
AND THE GRAND JURY LACKED
THE POWER TO INVESTIGATE
COR PUMP EMS i kt ee 7
A. In The Absence Of Written
Authorization From The Independent
Counsel, The Ethics In Government
Act Of 1978 Strips The Department
Of Justice Of Power To Act With
Regard To Any Matter Within The
we CS Sd a eee ea ee 7
Se ce. ee ek le ee ee eee nen, ee
iV
Page
B. When The Grand Jury Investigation
Is Unauthorized, A Written
Authorization That Comes At The
Conclusion Of The Investigation
Cannot Have Retroactive Effect. .... 12
C. Because The Department Of Justice
Lacked Prosecutorial Jurisdiction,
Any Resulting Indictment Is Invalid. . . 13
Il. THE INDEPENDENT COUNSEL
CANNOT RELINQUISH TO THE
DEPARTMENT OF JUSTICE
AUTHORITY TO PROSECUTE
MATTERS WITHIN ITS CORE
Oe eT eee eS eee ee 15
Ul. INA PROSECUTION UNDER THE
GRATUITIES STATUTE, THE
DEFENDANT MUST BE INFORMED
WHAT THE GRATUITIES WERE AND
WHEN THEY WERE GIVEN, OFFERED,
Ce Pe 6 a 6 SV oe eee re 19
CARR AAMT 6 00 PS nt a DAO 24
APPENDIX:
Decision of United States Court of Appeals for the
District of Columbia Circuit (June 17, 1994)... .. A-1
Order of United States District Court for the
District of Columbia (Sept. 28, 1992) ........ A-38
Order of United States District Court
for the District of Columbia (Sept. 25,1992) .... A-40
Order of United States District Court for the
District of Columbia (Aug. 7,1992) .........
Opinion of United States District Court for the
District of Columbia (Aug. 14,1992) ........
Order on Defendant Briscoe’s Motion for Bill
of Particulars, United States District Court for
the Southern District of Florida (Sept. 11,1991)...
Order of United States Court of Appeals for the
District of Columbia Circuit, Division for the
Purpose of Appointing Independent Counsels
eo re es ee ee
Order Denying Petition for Rehearing by
United States Court of Appeals for the District
of Columbia Circuit (Oct. 19,1994) .........
Judgment of United States Court of Appeals
for the District of Columbia Circuit (June 17, 1994) .
Judgment in a Criminal Case, United States
District Court for the District of Columbia
I ee
Constitutional Provisions, Statutes and Rules
ee ee ee a so oe
Letter from Arlin M. Adams, Office of
Independent Counsel, to Dexter W. Lehtinen,
Office of U.S. Attorney for Southern District of
ap ee
Indictment in United States District Court for
the Southern District of Florida (June 12,1991)...
Excerpt of Transcript of Arraignment Hearing
on Superseding Indictment Before the Honorable
Stanley S. Harris, United States District Court
for the District of Columbia (Dec. 2,1991) .....
A-53
A-58
A-80
A-81
vi
Page
Excerpt of Transcript of Status Call Before the
Honorable Stanley S. Harris, United States
District Court for the District of Columbia
CG See + Sa ss oe ek ee oe A-93
Excerpt of Transcript of Proceedings, United
States District Court for the District of Columbia
Ce Gy BOO 4s.s bo ee ee LE ae se A-96
Excerpt of Government’s Memorandum in Support
of Motion to Consolidate Indictments and Trials... A-98
Excerpt of Government’s Response to
Defendant Briscoe’s Pre-Trial Motions ....... A-100
Excerpt of Trial Transcript, United States
District Court for the District of Columbia,
Volume XVII (Oct. 26,1992) ............ A-102
Excerpt of Trial Transcript, United States
District Court for the District of Columbia,
Vous 7. Vide GPCL. 27, TBee) cc ee es A-128
Excerpt of Defendant Leonard E. Briscoe’s
Supplemental Proposed Jury Instructions ...... A-176
Excerpt of Transcript of Proceedings, United
States District Court for the District of Columbia
Ce a 3. « 2 ee as ee A-180
Vii
TABLE OF AUTHORITIES
Page
Cases:
Hamling v. United States, 418 U.S. 87 (1974) .. . 20
Russell v. United States, 369 U.S. 749 (1962) ... 6, 19-23
United States v. Briscoe, 798 F. Supp. 28
I cary GA ke bee ee 8 ew 1-2
United States v. Daniels, 902 F.2d 1238
(7th Cir.), cert. denied, 498 U.S. 981 (1990) . 13, 15
United States v. Fein, 504 F.2d 1170
| ee a ee 15
United States v. Fernandez, 887 F.2d 465
Ee ea 6, 8, 11, 12
United States v. Gillespie, 666 F. Supp. 1137
a ee ee. ee 15
United States v. Hess, 124 U.S. 483 (1888) .... 20
United States v. Macklin, 523 F.2d 193
te ly dg xs ck 4 89 8 15
United States v. North, 713 F. Supp. 1441
a ee ee eee 11
United States v. Wilson, 26 F.3d 142
I otk osc 6. 6 4 4 6 84 ]
Constitutional Provisions:
RR a a i, 2, 9,19, 20
8 ere i, 2, 19, 20, 22, 23
Statutes and Rules:
Ske ey yk ie We ee 20
Es ss 5 np oe W Ree 3
Vill
Page
oe ea > 8s ee A i, 2,3,6,19
Be ts oa sd & pears ae ae 7
Ethics in Government Act of 1978, as amended,
De Oe OE sc et eee ee ewe i, 6, passim
Se ee ke ee we eee be he ee passim
ee ee ee. ek ek cre ee 2, 8, 17
Pas ek 6c ow 8 eo Se ere es OS 2
oe A ks oa su oe 6 hoe oo eR passim
ae es SE 6k ee we eR OO 2
rem. Ce 7. FOC ke eee i, 2,19,20,22, 23
, 8 Se SS er rer 2
Legislative Material:
S. Rep. No. 170, 95th Cong., Ist Sess. (1977),
reprinted in 1978 U.S.C.C.A.N. 4216 .. . .7,9,12, 16
No.
IN THE
Supreme Court of the United States
OCTOBER TERM, 1994
LEONARD E. BRISCOE,
Petitioner,
Vv.
UNITED STATES OF AMERICA,
Respondent.
Petition for a Writ of Certiorari to the
United States Court of Appeals
for the District of Columbia Circuit
PETITION FOR A WRIT OF CERTIORARI
Petitioner Leonard E. Briscoe respectfully petitions for a
| writ of certiorari to review the judgment of the United States
Court of Appeals for the District of Columbia Circuit in this
case.
OPINIONS BELOW
The decision by the United States Court of Appeals as to
which review is sought (App. A-1 to A-37) is reported as United
States v. Wilson, 26 F.3d 142 (D.C. Cir. 1994). The Order and
Opinion by the United States District Court for the District of
Columbia dated August 7, 1992 and August 14, 1992 (App.
A-41 to A-52), which are referenced in the District Court’s
Order dated September 28, 1992 (App. A-38 to A-39), are
reported as United States v. Briscoe, 798 F. Supp. 28 (D.D.C.
2
1992). The other opinions and orders in this case (App. A-38
to A-40, A-53 to A-57) are unreported.
JURISDICTION
The court of appeals entered its judgment on June 17, 1994.
App. A-62. A timely petition for rehearing was denied on
October 19, 1994. App. A-61. The jurisdiction of this Court is
invoked under 28 U.S.C. § 1254(1).
CONSTITUTIONAL PROVISIONS,
STATUTES AND RULES INVOLVED
The Fifth Amendment to the United States Constitution,
the Sixth Amendment to the United States Constitution, 18
U.S.C. § 201(c)(1)(A), 28 U.S.C. § 594(a), (d), and (e), 28
U.S.C. § 597(a), Fed. R. Crim. P. 7(c)(1), and Fed. R. Crim. P.
7(f) are set forth in the Appendix. App. A-74 to A-79.
STATEMENT OF THE CASE
The basis for federal jurisdiction in the court of first in-
stance in this case is 18 U.S.C. § 201(c).
On July 7, 1990, the United States Attorney’s Office for
the Southern District of Florida, which is part of the Department
of Justice (hereinafter, “DOJ”), reached a cooperation agree-
ment with DuBois Gilliam (hereinafter, “Gilliam’’), the former
Deputy Assistant Secretary for Program and Policy Develop-
ment and Evaluation at the Department of Housing and Urban
Development (hereinafter, “HUD”). App. A-3. Gilliam had
already testified before Congress pursuant to a grant of immu-
nity. Id.
On or about July 16, 1990, a Division of the United States
Court of Appeals for the District of Columbia Circuit issued an
order expanding the mandate of the Office of Independent
Counsel (hereinafter, the “IC’’), headed by Arlin M. Adams, to
enable the IC to investigate “the administration of the Depart-
ment [i.e., HUD]’s Urban Development Action Grant Program”
3
/
(hereinafter, the “UDAG” program) and “whether Samuel R.
Pierce, Jr., and other officials of the Department (of Housing and
Urban Development], and other persons or entities, from 1984
through 1988 inclusive, may have committed the crime of
conspiracy to defraud the United States, or any other federal
crimes” relating to (inter alia) the UDAG program. App. A-59
to A-60 (emphasis added).
In the eleven months following the grant of authority to the
IC, DOJ continued to conduct grand jury proceedings relating
to Gilliam’s allegations, including allegations that Leonard E.
Briscoe, the Petitioner herein (hereinafter, “Petitioner’”), had
offered and given gratuities to Gilliam in relation to the admini-
stration of the UDAG program by HUD. App. A-3 to A-4, A-81
to A-90. Gilliam testified before the grand jury in the Southern
District of Florida in September 1990. App. A-173 to A-174.
As DOJ essentially acknowledged, these alleged offenses
clearly came within the mandate of the IC, which was charged
with investigating all criminal activity relating to HUD’s ad-
ministration of UDAG programs during 1984-1988. App. A-97
to A-99. Gilliam “was at the center of the alleged criminal
activities” which the IC was charged with investigating. App.
A-3.
Ultimately, on June 12, 1991, the grand jury convened by
DOJ in the Southern District of Florida issued an indictment
charging Petitioner with (inter alia) two counts of offering and
giving gratuities to Gilliam, in violation of 18 U.S.C.
§§ 201(c)(1)(A) and 2, in relation to the administration of UDAG
programs by HUD in Count III and Count V. App. A-81 to A-90.
The indictment did not specify what the gratuities were (instead
stating that they were “money and other things of value,” App.
A-87 to A-88), and did not specify when they were given, offered,
or promised except that the acts in Count III allegedly took place
at some time over a two-year period, from “in or about November
1985 to in or about late 1987,” App. A-87, and those in Count V
4
allegedly took place at some time over a period of almost three
years, from “in or about May 1986 to in or about March 1989,”
App. A-88. There was an overlap between the two counts of
approximately one and one-half years.
At no time prior to June 12, 1991 (the date of the indict-
ment) did DOJ have written authorization from the IC to con-
tinue its investigation. However, at some time on June 12, 1991,
the IC issued a letter to the United States Attorney for the
Southern District of Florida “hereby authoriz[ing] your Office’s
investigation and, if appropriate, prosecution” of (inter alia) “a
possible conspiracy among Leonard Briscoe, David Steier, and
others to bribe a government official, Dubois Gilliam.” App.
A-80. The record does not reflect, and the Government has
refused to inform Petitioner, whether the letter was sent before
or after the issuance of the indictment.
Upon Petitioner’s motion, the indictment was subsequently
transferred to the United States District Court for the District of
Columbia, where (over Petitioner’s objection) it was consoli-
dated with a federal indictment (hereinafter, the “third supersed-
ing indictment”) obtained by the IC from a grand jury sitting in
the District of Columbia. App. A-5. (Counts II-VI were simply
left blank in the third superseding indictment, so that the counts
from the Florida indictment could be simply substituted without
change and without being presented to a new grand jury.)
Petitioner requested particulars as to what the gratuities were
that were alleged in the DOJ indictment, and when they were
given, offered, or promised. Both DOJ and the IC refused to
provide a bill of particulars. Petitioner twice moved for bills of
particulars to specify (inter alia) what the gratuities were, but
the United States District Courts for both the Southern District
of Florida and the District of Columbia denied the motions.
App. A-40, A-53 to A-57. The discovery provided to Petitioner
included a “book” created by Gilliam (apparently from memory
during the course of the investigation), in which Gilliam pur-
5
portedly listed all of the “bribes” he had received. App. A-122
to A-125, A-129 to A-130, A-133 to A-134.
Petitioner also moved to dismiss the indictment issued by
the Florida grand jury on the ground that DOJ did not have
prosecutorial jurisdiction over matters within the IC’s mandate,
and that the indictment was therefore invalid. This motion was
denied by the United States District Court for the District of
Columbia. App. A-38 to A-39.
At trial, the Government elicited testimony from Gilliam
about numerous alleged promises and bribes, covering a wide
range of times from 1984 to 1989, including bribes that had not
been included in the “bribe book,” nor elsewhere in the discov-
ery. The “bribe book” not only failed to provide adequate notice
of the alleged gratuities but affirmatively misled Petitioner into
believing that no alleged “bribes” would be presented at trial
that were not contained in the book that had been prepared by
the Government’s key witness and which the Government itself
had presented in discovery. See App. A-122 to A-125, A-129
to A-130, A-133 to A-134. Despite this, the District Court
refused to take any action, App. A-135, or to permit a special
verdict by the jury, by which Petitioner could (albeit post-trial)
have ascertained what act(s) constituted the alleged of-
fenses, see App. A-176 to A-179.
Petitioner was convicted of the two gratuity counts men-
tioned above that were contained in the indictment obtained in
the Southern District of Florida, and was acquitted of all other
counts in the consolidated cases. App. A-5. Petitioner appealed
to the United States Court of Appeals for the District of Colum-
bia Circuit (hereinafter, the “court below’’), which affirmed the
judgment in an opinion (hereinafter, the “Decision”) dated June
17, 1994. See App. A-37. Petitioner then filed a petition for
rehearing, which was denied on October 19, 1994. App. A-61.
6
REASONS FOR GRANTING THE WRIT
This case raises novel and important issues relating to the
scope of the prosecutorial jurisdiction of independent counsels
appointed pursuant to the independent counsel provisions of the
Ethics in Government Act of 1978, as amended (hereinafter, the
“Act’), 28 U.S.C. §§ 591-599, and involves a split in approach
between circuit courts of appeals. In United States v. Fernan-
dez, 887 F.2d 465 (4th Cir. 1989), the court held that the Act
effected a transfer of prosecutorial jurisdiction away from DOJ
and towards the IC, and that DOJ lacked independent authority
to take action with regard to matters within the scope of the IC’s
mandate. In the instant case, the United States Court of Appeals
for the District of Columbia Circuit upheld the conviction even
though it was based on an indictment that resulted from a grand
jury investigation that was conducted by DOJ without authority,
in effect holding that DOJ retained the power to prosecute and
that its failure to obtain authorization did not involve a jurisdic-
tional defect. Petitioner submits that these decisions are in
conflict, and that the issue is likely to recur as the independent
counsel law, recently re-enacted, is invoked in future investiga-
tions. Petitioner submits that this case raises issues of great
public importance, especially in light of the importance of the
matters typically entrusted to independent counsels, and the
effect of the proper functioning of the independent counsel law
on the public’s perception of the administration of justice.
This case also raises an important issue, not previously
decided by this Court, as to the requirements of due process for
notice to defendants who are charged with violation of the
gratuities statute, 18 U.S.C. § 201(c)(1). Petitioner submits that
the decision of the court below, that the Government need not
provide notice of what the gratuity was or when it was given,
offered, or promised, comiucts with this Court’s decision in
Russell v. United States, 369 U.S. 749 (1962), and that the issue
7
is likely to recur in future prosecutions under the gratuities
statute.
I. THE INDICTMENT IN THIS CASE IS INVALID
BECAUSE THE GRAND JURY INVESTIGATION
AT ISSUE TOOK PLACE AT A TIME WHEN THE
DEPARTMENT OF JUSTICE AND THE GRAND
JURY LACKED THE POWER TO INVESTIGATE
OR PROSECUTE.
A. In The Absence Of Written Authorization From
The Independent Counsel, The Ethics In
Government Act Of 1978 Strips The Department
Of Justice Of Power To Act With Regard To Any
Matter Within The IC’s Mandate.
The Decision upholding Petitioner’s conviction is incon-
sistent with both the language and purpose of the Act, which
places a jurisdictional limitation on DOJ’s power to act in
matters entrusted to an IC. Both the wording of the Act and its
legislative history reflect that it was based on a recognition that
certain prosecutions, relating to allegations of corruption by
high-ranking Executive Branch officials, cannot properly be
handled by DOJ (a part of the Executive Branch), because DOJ’s
involvement would raise both the appearance and the reality of
a conflict of interest. See S. Rep. No. 170, 95th Cong., 1st Sess.
(1977) (hereinafter, “S. Rep. No. 170”) at 5-6, reprinted in 1978
U.S.C.C.A.N. 4216, 4221-22.
Therefore, the purpose of the Act is to transfer “prosecuto-
rial jurisdiction,” 28 U.S.C. § 594(a), from DOJ and vest it
exclusively in the IC. To that end, the Act grants “full power
and independent authority to exercise all investigative and
prosecutorial functions and powers of the Department of Jus-
tice” regarding “all matters in such independent counsel’s prose-
cutorial jurisdiction,” with the single exception of wiretapping
under 18 U.S.C. § 2516. § 594(a) (emphasis added). The Act
also enumerates specific powers that are “include[d]” within the
8
grant of authority, including the “full power” of “conducting
proceedings before grand juries and other investigations,” 28
U.S.C. § 594(a)(1); “participating in court proceedings,”
§ 594(a)(2); “appealing any decision of a court in any case or -
proceeding in which such independent counsel participates in
an official capacity,” § 594(a)(3); and “initiating and conducting
prosecutions in any court of competent jurisdiction, framing and
signing indictments, filing informations, and handling all as-
pects of any case, in the name of the United States,” § 594(a)(9)
(emphasis added). The Act’s grant of “full power” to the IC
within its “prosecutorial jurisdiction” applies “[n]Jotwithstand-
ing any other provision of law.” § 594(a).
Consistent with its purpose, the Act makes clear that, once
the IC is entrusted with jurisdiction, DOJ no longer has any
power to act within the scope of the IC’s mandate except at the
IC’s instigation. Thus, the Act requires that “/w]Jhenever a
matter is in the prosecutorial jurisdiction of an independent
counsel . . . the Department of Justice . . . shall suspend all
investigations and proceedings regarding such matter,” 28
U.S.C. § 597(a) (emphasis added), except in two instances. The
first instance is when the IC itself requests assistance from DOJ
under § 594(d)(1), e.g., by providing “access to any records,
files, or other materials,” and “the use of the resources and
personnel necessary” for the IC to perform its duties,
§§ 594(d)(1), 597(a). The second instance is when “such inde-
pendent counsel agrees in writing that such investigation or
proceedings may be continued by the Department of Justice.”
§ 597(a).
Thus, the language of the Act itself makes clear that the
grant of “full power and independent authority” (§ 594(a)) to
the IC (a grant which the United States Court of Appeals for the
Fourth Circuit characterized as “broad” and “unequivocal,”
Fernandez, 887 F.2d at 468), as to “all” matters, “all” functions
and powers, and “all” aspects of any case within the mandate,
9
§ 594(a), is a grant of exclusive prosecutorial jurisdiction and
strips DOJ of any independent power to act. Moreover, the
legislative history further emphasizes Congress’s concern about
the dangers that would result if DOJ retained independent power
to act within the IC’s mandate; indeed, the Senate Report states
that “(t]he whole purpose of this chapter is defeated if a special
prosecutor is not independent and does not have clear authority
to conduct a criminal investigation and prosecution without
interference, supervision or control by the Department of Jus-
tice.” S. Rep. No. 170 at 66, 1978 U.S.C.C.A.N. at 4282
(emphasis added).
Moreover, any contrary interpretation — that DOJ’s pow-
ers are unaffected by the grant of “prosecutorial jurisdiction” to
the IC, and that DOJ retains power to act within the IC’s mandate
— would lead to ludicrous results that would frustrate the
purposes of the Act. Unless DOJ is deemed to be stripped of
power to act in the absence of the IC’s written authorization,
DOJ could act so as to cause severe and irreversible damage to
the IC’s ability to fulfill its mandate. By the very nature of
prosecutorial jurisdiction, and without any bad faith, DOJ could
act in numerous ways that would impede and interfere with the
IC: for example, DOJ could reach plea agreements (including
pleas of nolo contendere) with targets of the IC’s investigation,
and obtain the entry of consent judgments, which under the
Double Jeopardy Clause of the Fifth Amendment to the Consti-
tution would bar further prosecution by the IC for offenses
arising from the same facts. DOJ could also make charging
decisions, such as charging lesser offenses, and could bring
cases that, once jeopardy had attached, would bar IC prosecu-
tions. DOJ could reach immunity agreements and seek immu-
nity from district courts for targets or potential targets of the IC’s
investigation, and could make decisions to charge certain defen-
dants with greater offenses and other defendants with lesser
offenses, either to obtain the cooperation of certain defendants
or because of favoritism or preferential treatment. All of these
10
are matters as to which “full power” is invested in the IC by 28
U.S.C. § 594(a), and it is clearly inconsistent with the exercise
of that “full power” to conclude that DOJ also retains “full
power” as to the same matters.
Indeed, unless DOJ no longer has the power to act, DOJ
could obtain consent judgments against every potential target of
the IC’s investigation, based on the same facts that underlie the
IC’s mandate. Thus, DOJ would be able to bar the IC from
prosecuting any offense within its mandate.! In a “worst-case
scenario,” DOJ could even collude with a target to provide him
or her with favorable treatment, or with preferential treatment
relative to other targets, before the IC has had an opportunity to |
investigate or prosecute — for example, by obtaining a consent |
judgment to a lesser offense, conditional on an agreed penalty,
in a forum that the target considers favorable to him or her,
thereby barring any further prosecution arising from the same
facts. This would deprive the IC of the “full power” expressly
granted by § 594(a).
Even when both sides are acting in good faith, whenever
DOJ is permitted to prosecute cases within the IC’s mandate,
DOJ has the power to tie the IC’s hands and prevent the IC from
exercising its full power and discretion within that mandate. In
this very case, for example, Gilliam was granted immunity and
cooperaied with DOJ’s investigation. The United States Attor-
ney’s Office for the Southern District of Florida thereby had the
ability to prevent the IC from prosecuting Gilliam in that district
— even if (as DOJ contended) it was the only district in which
venue could be had, App. A-92, A-94 to A-95, and even if the
IC later determined that it wanted to prosecute Gilliam. As a
result, the IC’s power became limited: the matters that DOJ was
pursuing were, in effect, carved out of the IC’s mandate. Thus,
Moreover, if DOJ failed to comply with § 597(a), the IC would not
even have notice that DOJ was proceeding with such cases, and would
therefore not be able to intervene to prevent judgment from being entered.
11
as a practical matter, any prosecution or investigation by DOJ
within the core of the IC’s mandate has the potential to cut off
the “full power and independent authority” of the IC in the very
area which Congress intended to entrust to the IC.
Accordingly, lower courts have recognized that the Act
vests exclusive jurisdiction in the IC regarding matters within
the IC’s mandate. In Fernandez, the court held that DOJ lacked
the power to appeal a ruling in a matter entrusted to the IC, on
the basis that § 594(a) of the Act was “an example of emphatic
statutory draftsmanship” that effected “a sweeping transfer of
prosecutorial and investigative authority from the Attorney
General to independent counsel.” 887 F.2d at 468 (emphasis
added). Accord United States v. North, 7/13 F. Supp. 1441, 1441
(D.D.C. 1989) (Act’s grant of “full power and independent
authority” to IC deprived DOJ of power to move for a stay).
While the court below purports to harmonize these deci-
sions, the rights to appeal rulings and to make motions are
simply two of the enumerated “functions and powers” as to
which § 594(a) grants “full power” to the IC; thus, they are no
different from the power of “conducting proceedings before
grand juries and other investigations” granted by the same
provision. Despite this, the court below held that the appoint-
ment of an IC does not withdraw authority from DOJ to inves-
tigate and conduct grand jury proceedings that fall within the
IC’s mandate. App. A-8. Instead, the court treats the Act as if
it did not deprive DOJ of the independent power to “conduct[]
proceedings before grand juries,” 28 U.S.C. § 594(a)(1), as to
matters within the IC’s mandate, and disregards the plain lan-
guage of § 597(a), treating it as if it held that DOJ may suspend
its proceedings (rather than “shall”’) and need do so only in some
cases when a matter is in the IC’s prosecutorial jurisdiction
(rather than “[wJhenever”). See App. A-11 to A-12. Indeed, the
court addresses the issue as if it did not involve an issue of
jurisdictional power at all, but merely an exercise of the court’s
12
supervisory authority. Petitioner submits that this conflicts with
Fernandez and represents a misreading of the statute.
B. When The Grand Jury Investigation Is
Unauthorized, A Written Authorization That
Comes At The Conclusion Of The Investigation
Cannot Have Retroactive Effect.
While the IC issued a letter on June 12, 1991, the same day
as the indictment issued, purportedly authorizing an investiga-
tion, such an authorization cannot legitimize the grand jury
investigation that had already occurred, for several reasons.
First, the terms of the IC’s letter only purported to authorize a
prospective investigation, as reflected by the fact that it contem-
plated “investigation and, if appropriate, prosecution.” App.
A-80 (emphasis added). Thus, even assuming that the IC had
the power to do so, the IC did not attempt to grant DOJ
prosecutorial jurisdiction retroactively or nunc pro tunc.
Second, the Act does not authorize the IC to grant “retro-
active jurisdiction.” Under 28 U.S.C. § 597(a), the IC itself only
has power to “agree[] . . . that such investigation . . . may be
continued ....” Id. (emphasis added). Thus, the IC only has
statutory power to provide prospective authorization; it cannot
go back and agree that an already-completed grand jury inves-
tigation was valid. The requirement that the authorization be
“{n writing” similarly supports the conclusion that DOJ is pow-
erless to proceed until it complies with the Act, because it clearly
and unambiguously expresses Congress’s requirement that DOJ
“shall” cease its proceedings even if it has received oral authori-
zation from the IC. Moreover, as discussed more fully in
Section II below, the legislative history clearly reflects Con-
gress’s intent that DOJ is required to stop its investigation even
as to matters that are merely “peripheral” to the IC’s mandate.
S. Rep. No. 170 at 76, 1978 U.S.C.C.A.N. at 4292.
The terms of the Act speak expressly in terms of the timing
of the investigation vis-a-vis the IC’s agreement: the Act pro-
13
vides that DOJ “shall suspend” any investigation “except insofar
as” the IC agrees that it “may be continued,” 28 U.S.C. § 597(a)
(emphasis added). Thus, the wording of the Act requires that
the exclusive manner of proceeding is that, first, DOJ “shall”
suspend its proceeding; then, it must obtain written authoriza-
tion from the IC; and only then can the proceeding be “contin-
ued.” The reference to “suspend[ing]” the investigation until it
can be “continued” makes clear that DOJ has no power to
proceed until it has the IC’s written authorization.
Moreover, even if the Act were less clear on this point than
it is, the IC still would not be able to grant “retroactive jurisdic-
tion.” If DOJ and the grand jury lacked authorization through-
out the grand jury’s investigation and the presentation of
evidence to the grand jury, the IC could not then “rewrite
history” by simply declaring that DOJ had always had the
jurisdiction, any more than a judge can revive a lapsed grand
jury by declaring nunc pro tunc that its term has been extended
(see United States v. Daniels, 902 F.2d 1238, 1240 (7th Cir.),
cert. denied, 498 U.S. 981 (1990)); whatever the IC authorized
afterwards, the fact remains that at the time, the grand jury’s
lengthy investigation was not authorized and was expressly
barred by the Act.
C. Because The Department Of Justice Lacked
Prosecutorial Jurisdiction, Any Resulting
Indictment Is Lavalid.
As the section above discusses, the investigation in this case
was Clearly conducted at a time when DOJ, and therefore the grand
jury, lacked the statutory power to investigate. This raises the
issue of whether the indictment was justified in any event because
the IC’s written authorization may have occurred just prior to
(although on the same day as) the issuance of the indictment.”
2
As noted above, it is not certain whether the letter was issued before
or after the indictment. Petitioner made numerous requests for this informa-
tion, to which the Government refused to respond. Petitioner submits that, if
i4
Petitioner submits that the indictment is void regardless of
whether the written authorization came immediately before or
immediately after the issuance of the indictment. The evidence
that was presented to the grand jury was presented by individuais
who, under the Act, had no power to do so. Thus, the indictment
can have had no valid jurisdictional basis.
In this case, DOJ and the grand jury conducted their
investigation at a time when DOJ lacked prosecutorial jurisdic-
tion. Thus, the evidence had not been presented to the grand
jury by a validly authorized prosecutor; DOJ and the grand jury
lacked the power to investigate. The alleged offenses — the
giving of gratuities to a high-ranking HUD official in relation
to the administration of the UDAG program — clearly consti-
tuted “a matter .. . in the prosecutorial jurisdiction of an ©
independent counsel” under § 597(a), as DOJ has acknow-
ledged, App. A-97, A-99, and the grand jury investigation went
on for eleven months following the order granting the IC juris-
diction over the matter. Moreover, the key testimony of Gilliam,
who was the alleged recipient of the gratuities and who was “at
the center of the alleged criminal activities” (App. A-3), had
been presented to the grand jury in September 1990 — approxi-
mately nine months before the indictment issued, App. A-173
to A-174. Moreover, Gilliam had already testified to Congress
before the IC’s mandate had been expanded in July 1990. App.
A-3. Clearly, DOJ was on notice for almost a year or more that
the matter was within the IC’s jurisdiction. Indeed, the IC’s
mandate had been enlarged in July 1990 (App. A-58 to A-60)
specifically to assure that its mandate covered the matters DOJ
thereupon proceeded to investigate. Despite this, the first time
the IC even purported to authorize DOJ to investigate the matter
was on the very day of the indictment. App. A-80.
the letter had been issued before the indictment, it is reasonable to believe
that the Government would have been eager to state this fact. Cf. App. A-101.
Ne
15
Petitioner submits that, when the grand jury investigation
and the presentation to the grand jury is conducted by individu-
als without prosecutorial jurisdiction to do so — i.e., without
authority to act — the indictment is invalid. DOJ presented its
evidence to the grand jury at a time when the Act had expressly
stripped DOJ of the power to do so. Moreover, not only was the
prosecutor unauthorized to act in presenting evidence to the
grand jury; the grand jury was also unauthorized to receive or
consider the evidence, because a grand jury may only receive,
consider and act upon evidence presented to it by a duly author-
ized prosecutor.
In an analogous situation, courts have found that an indict-
ment is invalid if it is issued by a grand jury whose term has
expired — i.e., a grand jury without authority to act. See, e.g.,
United States v. Daniels, 902 F.2d at 1240; United States v.
Macklin, 523 F.2d 193, 195 (2d Cir. 1975); United States v.
Fein, 504 F.2d 1170, 1173 (2d Cir. 1974); United States v.
Gillespie, 666 F. Supp. 1137, 1138-40 (N.D. Ill. 1987). In
addition, a grand jury indictment is also invalid if the grand
jury’s term is extended by a judge who does not have authority
to grant the extension. Daniels, 902 F.2d at 1240. In this case,
similarly, an indictment must be deemed invalid when it arises
from a grand jury investigation that took place over almost a
year without authorization and in violation of the Act, and that
remained in violation until the very day of the indictment.
fl. THE INDEPENDENT COUNSEL CANNOT RELIN-
QUISH TO THE DEPARTMENT OF JUSTICE
AUTHORITY TO PROSECUTE MATTERS
WITHIN ITS CORE MANDATE.
As discussed above, the Act grants “full power” to the IC,
under 28 U.S.C. § 594(a), but § 597(a) permits the IC to provide
written agreement to DOJ that DOJ may continue an investiga-
tion of a matter within the IC’s own prosecutorial jurisdiction.
This raises a second novel issue, never addressed by this Court:
16
whether the IC’s power to authorize DOJ to continue its own
investigations is unlimited.
The legislative history clearly indicates that Congress did
not view the IC as having unlimited ability to cede away its own
mandate to DOJ. Instead, Congress took the position that the
IC could only authorize DOJ to prosecute “peripheral” matters
under § 597(a):
there will have to be a certain amount of coordination
and cooperation between a special prosecutor and the
Department of Justice so that the lines of jurisdiction
between the Department and the special prosecutor
are clear and adequately encompass any peripheral
matters related to the special prosecutor’ s jurisdiction.
Therefore, while the special prosecutor may agree to
permit the Department of Justice to continue to con-
duct certain investigations or proceedings which are
peripherally related to the jurisdiction of the special
prosecutor, it would be a total subversion of the intent
of this chapter if the special prosecutor agreed to
permit the Department of Justice to conduct any im-
portant or substantial portion of the investigation
under the responsibility of the special prosecutor.
S. Rep. No. 170 at 76, 1978 U.S.C.C.A.N. at 4292 (emphasis
added).
Petitioner submits that this interpretation is fully consistent
with both the purpose and the language of the Act. The Act is
based on the premise that certain matters cannot properly be
handled by DOJ, and it therefore divests DOJ of power to
prosecute them and grants the IC “full power and independent
authority to exercise all investigative and prosecutorial func-
tions” as to “all matters” in its prosecutorial jurisdiction,
§ 594(a), including the power to handle “all aspects of any case”
within its mandate, § 594(a)(9). Therefore, the appointment of
re
17
an IC represents the conclusion that matters clearly within the
IC’s mandate are not appropriate for resolution by DOJ.
If, however, the IC is permitted to cede authority to DOJ
as to matters clearly within its mandate, it could divest itself of
its “full power” and lose the ability to “exercise . . . investigative
and prosecutorial functions and powers,” and lose any ability to
exercise discretion, as to matters contained in its mandate. As
discussed in Section I above, if DOJ is permitted to continue
prosecuting within the IC’s mandate, DOJ would be able to
obtain the entry of judgments against targets of the IC’s inves-
tigation for offenses arising out of the same facts that the IC is
charged with investigating — thus depriving the IC of the “full
power” granted to it, and therefore preventing it from “exercis-
ing [its] functions and powers” and from fulfilling its mandate.
By the same token, unless there are some limits on the IC’s
ability to authorize DOJ investigations, the IC could effectively
divest itself of its “prosecutorial jurisdiction” and power by
authorizing DOJ prosecutions that would cover important parts
or even the entire field of its mandate.?
Moreover, the only basis for any power by the IC to
authorize DOJ investigations is that contained in 28 U.S.C.
§ 597(a). However, § 597(a) is expressly subordinated to
§ 594(a), which governs “[n]otwithstanding any other provision
of law.” Therefore, § 597(a) must be interpreted consistently
with the grant of “full power’ contained in § 594(a), and cannot
3 When the IC authorizes a DOJ investigation to continue, it does not
constitute a “delegation,” or an instance where DOJ, at the IC’s request,
merely provides “the use of the resources and personnel necessary to perform
[the IC’s] duties,” which is permitted by § 594(d)(1); in those cases, the IC
would retain control and supervisory power over DOJ. By contrast, author-
izing a separate DOJ prosecution within the IC’s mandate deprives the IC of
its ability to exercise discretion as to that matter, because it enables DOJ, as
an authorized prosecutorial agency, to take irrevocable action with regard to
the matter.
18
be invoked in support of an attempt to undermine or cut off that
power.
Furthermore, § 597(a) does not purport to address which
investigations the IC can authorize, and, as discussed above, the
Act’s purpose would be frustrated if it were interpreted to permit
the IC to cede its entire investigation back to DOJ — or, as the
legislative history states, “any important or substantial portion
of the investigation.” The Act’s grant of “full power” should be
read consistently with the legislative history, to permit only the
authorization of DOJ investigations that are “peripheral” to the
IC’s mandate. One way of determining whether a matter is
“peripheral” is whether a DOJ prosecution could result in a
conviction arising out of facts clearly within the IC’s mandate,
and that would bar a further IC prosecution based on those facts.
In this case, the investigation and indictment at issue were
clearly not “peripheral” but were squarely within the IC’s man-
date. App. A-97, A-99. The IC’s mandate included the author-
ity to investigate HUD’s administration of the UDAG program
and any crimes committed by officials of HUD or other persons
relating to the UDAG program, App. A-59 to A-60, and Gilliam
was “at the center of the alleged criminal activities” that the IC
was charged with investigating, App. A-3. DOJ’s investigation
and indictment related precisely to HUD’s administration of the
UDAG program and to gratuities provided to Gilliam — a
high-ranking HUD official — in connection with that program.
App. A-87, A-88.
Thus, the indictment was clearly within the core of the IC’s
mandate, and the IC was not therefore free to divest itself of “full
power to exercise all investigative and prosecutorial functions”
as to that matter. Thus, for reasons similar to those addressed
in Section I above, the indictinent was invalid, because DOJ was
not and could not be authorized to investigate or prosecute the
case.
19
fil. INA PROSECUTION UNDER THE GRATUITIES
STATUTE, THE DEFENDANT MUST BE IN-
FORMED WHAT THE GRATUITIES WERE AND
WHEN THEY WERE GIVEN, OFFERED, OR
PROMISED.
This case also raises the important issue, never decided by
this Court, as to the notice that the Government is required to
give in a gratuities prosecution under 18 U.S.C. § 201(c)(1).
The court below affirmed Petitioner’s conviction even though
(1) the indictment did not specify what gratuities were given,
offered, or promised, or in what amounts, App. A-87, A-88; (2)
the indictment did not provide any specificity as to the time in
which the gratuities were given, offered, or promised, but in-
stead alleged a two-year period on one count and a nearly
three-year period on the other count (with a confusing one and
one-half-year overlap between the two counts), App. A-87,
A-88; and (3) despite repeated requests and motions by Peti-
tioner, no bill of particulars was ever provided to specify the
gratuities or the times at which they were made, App. A-36,
A-40, A-53 to A-57. Petitioner submits that this failed to apprise
him with reasonable certainty of the nature of the accusation,
contrary to the Fifth and Sixth Amendments to the United States
Constitution, to Federal Rule of Criminal Procedure 7(c)(1), and
to this Court’s holding in Russell v. United States, 369 U.S. 749
(1962). Indeed, to this very day, Petitioner does not know what
conduct constituted the offenses for which he has been con-
victed.
The Sixth Amendment requires that “the accused shall
enjoy the right. . . to be informed of the nature and cause of the
accusation ....” In addition, Fed. R. Crim. P. 7(c)(1) requires
that the indictment contain “a plain, concise and definite written
statement of the essential facts constituting the offense charged.”
This Court has held that an indictment must “first, contain[] the
elements of the offense charged and fairly inform[] a defendant
20
of the charge against which he must defend, and, second,
enable[] him to plead an acquittal or conviction in bar of future
prosecutions for the same offense.” Hamling v. United States,
418 U.S. 87, 117 (1974). While an indictment may be pleaded
in the words of the statute where the statute unambiguously sets
forth all of the elements of the offense, “‘it must be accompanied
with such a statement of the facts and circumstances as will
inform the accused of the specific offense, coming under the
general description, with which he is charged.’” Jd. at 117-18
(quoting United States v. Hess, 124 U.S. 483, 487 (1888)).
In Russell v. United States, 369 U.S. 749 (1962), the Court
held that when an issue “is central to every prosecution under
the statute [and] [w]here guilt depends so crucially upon such a
specific identification of fact, our cases have uniformly held that
an indictment must do more than simply repeat the language of
the criminal statute.” Jd. at 764, quoted in Hamling, 418 U.S.
at 118. Russell involved prosecutions under 2 U.S.C. § 192,
which prohibited individuals from refusing to answer questions
in Congressional hearings when those questions were pertinent
to the Congressional inquiry. The indictments in Russell set
forth the precise questions which the defendants had refused to
answer, along with the time and place of the hearings, but the
Court held that “the very core of criminality” under the statute
was “pertinency to the subject under inquiry,” 369 U.S. at 765,
and the indictment was therefore required to set forth the subject
under inquiry as well. As a result, under the Fifth and Sixth
Amendments and Fed. R. Crim. P. 7(c)(1), the indictments failed
to apprise the defendants with reasonable certainty of the nature
of the charges against them. /d. at 765-66.
The deficiencies of the indictment in this case — where the
indictment pled unspecified “gratuities” given, offered, or
promised within periods of two to three years — are far more
egregious than those in Russell, where the indictment had pled
the specific questions asked and the date and place of the
21
hearings. Petitioner submits that, under Russell, he was not
provided adequate notice because his indictment failed to set
forth what the alleged gratuities were (instead merely alleging
“money [in unspecified amounts] and other things of value,”
App. A-87, A-88), and when they were given, offered, or
promised; the failure to do so is especially inexcusable in light
of the fact that allegations of “gratuities” naturally lend them-
Selves to exact particulars as to what was given, offered, or
promised, and when. The essence of a violation of the gratuities
Statute is the providing, offering, or promising of a specific thing
of value — in other words, a gratuity — yet the indictment failed
to apprise Petitioner of what the thing of value was or even when
it was provided, offered, or promised, even though “guilt de-
pends so crucially upon such a specific identification of fact.”
Russell, 369 U.S. at 764.
A fortiori, the failure to provide a bill of particulars, despite
two motions by Petitioner, App. A-40, A-53 to A-57, violated
Petitioner’s rights. Indeed, Russell indicates that even a bill of
particulars would have been insufficient: the Court made clear
that “it is a settled rule that a bill of particulars cannot save an
invalid indictment,” because it would permit a defendant to “be
convicted on the basis of facts not found by, and perhaps not
even presented to, the grand jury which indicted him.” 369 U.S.
at 770. In any event, the denial of a bill of particulars denied
Petitioner the notice necessary to apprise him of the nature of
the charges against him or to permit him to prepare his defense.
Events at trial further proved the importance of providing
adequate notice of what gratuities a defendant is alleged to have
given, offered, or promised, and when. At trial, the Government
put on extensive testimony by Gilliam as to many different
alleged payments or arrangements that the Government or the
grand jury may or may not have considered to be gratuities,
including a loan of money to a third party (Gilliam’s father) in
return for a promissory note, a loan of money to Gilliam, and
22
“promises” of payments outside of the statute of limitations.
App. A-103 to A-127, A-129 to A-173. To this date, it is unclear
which of these many allegations the grand jury had in mind when
it issued the indictment; which of these allegations the Govern-
ment itself considered to be gratuities; which of the allegations
provided the basis for the petit jury’s decision; whether (in light
of the fact that the two counts overlapped in time) the same
conduct was the basis for both convictions; or whether the
conduct occurred before or after the Sentencing Guidelines went
into effect. Petitioner submits that this cannot comport with the
requirement that he “be informed of the nature and cause of the
accusation” against him. U.S. Const., amend. VI.
A further instance of the importance of providing “the
essential facts” in the indictment, Fed. R. Crim. P. 7(c)(1), or at
least through a bill of particulars, is that, while the Government
claimed that discovery materials it provided contained adequate
notice, the discovery actually affirmatively misled Petitioner,
because it included a “bribe book” that Gilliam had created
(apparently, during the investigation) in which he purportedly
listed all of the payments he had received; however, at trial,
Gilliam testified as to numerous additional payments that had
not been contained in the “bribe book.” App. A-122 to A-125,
A-129 to A-130, A-133 to A-134. Thus, the discovery, if
anything, actually exacerbated the lack of notice to Petitioner.
Moreover, even if, as Russell holds, a bill of particulars is an
inadequate substitute for particularized allegations, a fortiori the
Government cannot simply provide a collection of documents
and expect the defendant to find “a needle in a haystack” (or,
more accurately, “an unspecified item or items in a haystack”).
This is especially true in a situation involving a statute, such as
the gratuities statute, which contemplates the giving, offering,
or providing of a specific thing at a specific time.
In this case, as in Russell,
i
oe
A cryptic form of indictment in cases of this kind
requires the defendant to go to trial with the chief issue
undefined. It enables his conviction to rest on one
point and the affirmance of the conviction to rest on
another. It gives the prosecution free hand on appeal
to fill in the gaps of proof by surmise or conjecture.
369 U.S. at 766. Obviously, these problems are only increased
when the defendant is also denied a bill of particulars. Conse-
quently, Petitioner respectfully submits that he was not provided
notice in accordance with the Sixth Amendment and Fed. R.
Crim. P. 7(c)(1); that he was prejudiced because he was unable
to determine the “essential facts” of the offenses — what the
gratuities were, and when they were given, offered, or promised
— and was surprised at trial by allegations as to which he
received no notice; and that his conviction must therefore be
overturned.
24
CONCLUSION
The petition for a writ of certioriari should be granted.
Respectfully submitted,
BARRY WM. LEVINE
(Counsel of Record)
ELAINE METLIN
GREGORY BARUCH
DICKSTEIN, SHAPIRO
& MORIN, L.L.P.
2101 L Street, N.W.
Washington, D.C. 20037
(202) 785-9700
Counsel for Petitioner
Leonard E. Briscoe
January 17, 1995
eel
UNITED STATES COURT OF APPEALS
DISTRICT OF COLUMBIA CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
V.
Lance Henry WILSON,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
V.
Leonard E. BRISCOE, Sr.,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Piaintiff-Appellee,
Vv.
Maurice David STEIER,
Defendant-Appellant.
Nos. 93-3053 to 93-3055
United States Court of Appeals,
District of Columbia Circuit.
Argued April 6, 1994.
Decided June 17, 1994.
As Amended June 17, 1994.
Appeal from the United States District Court for the Dis-
trict of Columbia (Criminal Nos. 91cr00399-02, 92cr00086-01
and 92cr00086-02).
A-2
Barry W. Levine argued the cause, for appellant Briscoe.
With him on the briefs were Elaine Metlin and David B. Killalea.
Theodore V. Wells, Jr., of the bar of the U.S. Court of
Appeals for the Third Circuit, pro hac vice, by special leave of
the Court, argued the cause, for appellant Wilson. With him on
the briefs were Martha P. Rogers and Robert L. Krakower.
Maurice David Steier argued and filed briefs pro se.
Bruce C. Swartz, Deputy Independent Counsel, argued the
cause for appellee. With him on the brief were Arlin M. Adams,
Independent Counsel, Roscoe C. Howard, Jr., Ltd. and Dianne
J. Smith, Associate Independent Counsels, and Eric H. Holder,
Jr., U.S. Atty.
Before WALD, EDWARDS, and RANDOLPH,
Circuit Judges.
Opinion for the Court filed by Circuit Judge WALD.
WALD, Circuit Judge:
This case arose out of an investigation into abuses and
mismanagement at the Department of Housing and Urban De-
velopment (“HUD”) initiated by Congress in 1989. In March
1990, on petition of the Attorney General, a special division of
this court appointed an independent counsel pursuant to the
Ethics in Government Act of 1978 (“Ethics Act” or “Act’),
§ 601(a), as amended, 28 U.S.C. § 593(b) (1988), to pursue the
investigation. At the close of the investigation, defendants were
prosecuted for involvement in an alleged bribery and kickback
scheme to obtain HUD Urban Development Action Grants
(“UDAGs”) for real estate developments in Florida and Texas.
Appellants were acquitted on all but the illegal gratuities counts,
18 U.S.C. § 201(c)(1)(A), which are now challenged on appeal.
For reasons stated below, we reverse the conviction of Lance
Henry Wilson because the illegal gratuity charge was brought
more than five years after his commission of the alleged offense
and was thus time barred under the applicable statute of limita-
A-3
tions, 18 U.S.C. § 3282, which defendant Wilson had not
waived, After a searching review of appellant Briscoe’s and
appellant Steier’s many challenges, we affirm their convictions,
addressing in detail only those contentions we believe merit
elaboration.
I. BACKGROUND
In 1989, after Congress had conducted hearings on alleged
abuses and mismanagement at HUD, the Attorney General,
acting pursuant to the Ethics Act, § 601(a), as amended, 28
U.S.C. § 592(c), “appl[ied] to the division of [this] court for the
appointment of an independent counsel.” Cf. Morrison v. Olson,
487 U.S. 654, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988) (uphold-
ing constitutionality of independent counsel provisions). On
March 1, 1990, the special division granted the Attorney Gen-
eral’s application and several months later expanded the inde-
pendent counsel’s investigative and prosecutorial jurisdiction to
cover any federal criminal violations committed by Housing
Secretary Samuel R. Pierce, Jr., or others in relation to, inter
alia, the administration of the UDAG program, as well as any
“additional matters related to the [iJndependent [cJounsel’s
prosecutorial jurisdiction referred to[i]dependent [c]ounsel by
the Attorney General.” In re Samuel R. Pierce, Jr. at 2
(D.C.Cir.Sp.Div. No. 89-5 July 1, 1990).
DuBois Gilliam, the former Deputy Assistant Secretary for
Program and Policy Development and Evaluation at HUD, who
was at the center of the alleged criminal activiiies, testified
before Congress pursuant to a grant of immunity. On May 31,
1990, he agreed to cooperate with the office of the Independent
Counsel (“OIC”), and one month later he further agreed to
cooperate with the U.S. Attorney for the Southern District of
Florida (“USAO”) who had been conducting an investigation
into local corruption involving Florida and Texas real estate
developer Leonard E. Briscoe. Gilliam alleged that, while he
was at HUD, he accepted false “firm financial commitment
letters” prepared by Lance Henry Wilson of Paine-Webber, Inc.
A-4
who had previously been Secretary Pierce’s Executive Assis-
tant. These letters would attest that the private developer, i.e.,
Leonard E. Briscoe, had secured a firm private commitment to
finance and carry out the proposed UDAG project prior to
preliminary HUD approval. Without evidence of such a finan-
cial commitment for any given project, HUD would not approve
UDAG matching funds.
According to the government, representatives of the OIC
and the Florida USAO met in July, 1990, and decided to
coordinate their investigative efforts. The Florida USAO would
continue its ongoing examination of alleged illegal activities
centered around Briscoe’s Florida activities, while the OIC
would focus on the scheme to obtain UDAG funds with the help
of false firm financial commitment letters.
As the investigation in the Southern District of Florida
finalized, it became clear that forthcoming indictments would
overlap considerably with the subject matter of the OIC’s juris-
diction. On June 12, 1991, the OIC authorized the USAO in
writing to seek the contemplated indictments. That same day the
Florida U.S. Attorney obtained two indictmen‘s, the first charg-
ing a kickback scheme with a local contractor (not at issue here)
and the second charging that Briscoe and his attorney M. David
Steier had conspired to bribe and provide illegal gratuities to
DuBois Gilliam to obtain approval for UDAG funding for three
Florida projects, the Wedgewood Plaza Apartments, Wedge-
wood Plaza Mall, and Palm Glade Apartments, in violation of
18 U.S.C. §§ 2, 201(b)(1)(A), 201(6)(1)(B), 201(c1)(A) & 371.
Barely one month later in Washington, D.C., the OIC
sought its first indictment of Briscoe charging various crimes in
connection with the firm financial commitment letters for the
Wedgewood Plaza Mall project. This indictment, however, was
to be superseded three times. On November 21, 1991, the
District of Columbia grand jury returned the first superseding
indictment against Briscoe, adding charges relating to a project
A-5
in Ft. Worth, Texas, known as Overton Ridge. On January 14,
1992, the D.C. grand jury returned a second superseding indict-
ment adding charges in connection with the Palm Glade project
and naming Lance Wilson as a defendant for the first time. The
second superseding indictment charged Wilson for the first time
with conspiracy and illegal gratuity. (Briscoe was alleged to
have participated in, but was not indicted for the conspiracy with
Wilson.) Two weeks later, Leonard Briscoe, without objection
by his co-defendant Steier, successfully moved to transfer both
Florida cases to the District of Columbia.
Finally, on May 19, 1992, the D.C. grand jury returned a
third superseding indictment, adding Brisco and Steier to the
conspiracy count. Shortly thereafter, the government success-
fully moved to consolidate the OIC and Florida indictments and
set them down for trial.
The government’s case was built on the theory that begin-
ning in 1985, Gilliam (an unindicted co-conspirator) agreed to
accept false firm financial commitment letters prepared by
Wilson, then at Paine Webber. Gilliam would make certain that
HUD awarded UDAG funds (sometimes in excess of HUD staff
estimates) to the projects developed by Briscoe. Attorney Steier
allegedly set up a company, “Northwest Investment Corpora-
tion,” for the purposes of surreptitiously funneling illegal pay-
ments from Briscoe to Gilliam.
After a three month jury trial Briscoe was convicted on the
two illegal gratuity counts which Originated in the Florida
USAO indictment and was acquitted on ail other counts; Wilson
was convicted on one illegal gratuity count which first appeared
in the OIC’s second superseding indictment and acquitted of the
remaining 21 counts; Steier was convicted of one illegal gratuity
count originating in the Florida indictment and acquitted of the
remaining five charges in which he was named as a defendant.
This appeal followed.
A-6
Tl. ANALYSIS
A. Challenge Under the Ethics in Government Act
The Ethics in Government Act, § 601(a), 28 U.S.C.
§ 597(a), provides:
Whenever a matter is in the prosecutorial jurisdiction
of an independent counsel or has been accepted by an
independent counsel under section 594(e), the Depart-
ment of Justice, the Attorney General, and all other
officers and employees of the Department of Justice
shall suspend all investigations and proceedings re-
garding such matters, except to the extent required by
section 594(d)(1), and except insofar as such inde-
pendent counsel agrees in writing that such investiga-
tion or proceedings may be continued by the
Department of Justice.
Although the OIC for this case was established in March
1990, it was not until over fourteen months later, on the same
day the Florida indictment was obtained, that the OIC for the
first time authorized in writing the USAO’s “investigation and,
if appropriate, prosecution of ... a possible conspiracy among
Leonard Briscoe, David Steier, and others to bribe a government
official, DuBois Gilliam.” Letter from Arlin M. Adams, Inde-
pendent Counsel, to Dexter W. Lehtinen, Office of the United
States Attorney for the Southern District of Florida (June 12,
1991). Briscoe and Steier argue that, as a result, the Florida
investigation was never duly authorized and the subsequent
indictment was fatally flawed.
Appellants contend further that even if the written authori-
zation of June 12, 1991, was not untimely, the OIC was not
empowered to authorize a simultaneous investigation by the
Department of Justice (“DOJ”) that was anything more than
peripherally related to the central matter within the jurisdiction
of the OIC. Relying solely on a passage from the legislative
history of the Ethics Act, they maintain that the Act would be
_
frustrated by permitting the USAO to continue an investigation
which substantially overlaps with the OIC’s jurisdiction. They
quote the Senate Report on Ethics Act which noted that “it would
be a total subversion of the intent of this chapter if the special
prosecutor agreed to permit the Department of Justice to conduct
any important or substantial portion of the investigation under
the responsibility of the special prosecutor.” S.REP. No. 170,
95th Cong., 1st Sess. 76(1977), reprinted in 1978 U.S.C.C.A.N.
4216, 4292. See Brief for Appellant Briscoe at 10-11. In a
related vein, they charge that the subsequent consolidation of
the Florida and D.C. indictments for joint prosecution by the
OIC and the DOJ also served to undermine the independence of
the special prosecutor in violation of the Ethics Act.
Briscoe and Steier do not allege any specific harm incurred
as a result of these events other than the fact of being indicted
and convicted on the charges originating in the Florida indict-
ment. They do not, for example, allege that the dual investiga-
tions effectively deprived them of defense resources, such as
access to witnesses or other evidence, which Briscoe and Steier
would have enjoyed in the absence of parallel investigations. !
Nor do appellants allege that the Florida USAO lacked the
requisite authorization from within the DOJ to conduct the
Florida grand jury proceedings. See, e.g., 28 U.S.C. §515(a):
cf: United States v. Prueitt, 540 F.2d 995 (9th Cir.1976), cert.
denied, 429 U.S. 1063, 97 S.Ct. 790, 50 L.Ed.2d 780 (1977)
(discussing standard for evaluating whether Attorney General
, According to 28 U.S.C. § 594(f), the independent counsel “shall,
except where not possible, comply with the . . . policies of the [DOJ]
respecting enforcement of the criminal laws.” These policies provided guid-
ance on such subjects as “dual prosecution, granting of immunity to witnesses,
and other important matters respecting enforcement of criminal laws,”and are
“important in ensuring that there is some degree of uniformity and fairness
of treatment involved in all prosecutions brought by the executive branch of
the federal government.” S.REP.NO. 170, 95th Cong., Ist Sess. at 69, 1978
U.S.C.C.A.N. at 4285. As the Act makes clear, the special prosecutor must
consider these guidelines, but is not bound to follow them.
A-8
has provided requisite appointment and direction under
§ 515(a)). The core of their claim is rather that upon appoint-
ment of the OIC, § 597(a) withdrew any authority the Florida
USAO otherwise had to investigate and conduct grand jury
proceedings regarding possible criminal activities involving
Leonard Briscoe, and that, as a result, notwithstanding the OIC’s
written authorization on June 12, 1991, to legitimize the Florida
indictments they are nonetheless fatally flawed. We reject that
contention.
The central purpose of the special prosecutor provisions of
the Ethics Act is to permit the effective investigation and prose-
cution of high level government and campaign officials. S.REP.
No. 170, 95th Cong., Ist Sess. at 5-7, 1978 U.S.C.C.A.N. at
4221-23. Accordingly, the Ethics Act provides a special divi-
sion of this court with power to vest the prosecutorial authority
of the United States in individuals who are beyond the sphere
of presidential influence, and who are unencumbered by any
conflicts of interest that might be expected to plague a DOJ
attorney prosecuting his superiors. However, merely anointing
a prosecutor from outside the incumbent Administration’ s realm
of power obviously would not suffice to ensure that the inde-
pendent prosecutor can effectively pursue his investigation. To
shore up the special prosecutor’s independence from the DOJ,
then, the Act specifically requires the DOJ to “suspend all
investigations and proceedings regarding such matter[s]” that
have been assigned to the special prosecutor. As we recognized
in In re Sealed Case, 829 F.2d 50, 56 (D.C. Cir. 1987), cert.
denied, 484 U.S. 1027, 108 S.Ct. 753, 98 L.Ed.2d 765 (1988),
the principal aim of this provision is to “prevent[] investigations
by the Department of Justice which would duplicate and possi-
bly impede the work of Independent Counsel.”
As reflected in the structure of the Act, the precise alloca-
tion of responsibility over every facet of the ensuing investiga-
tion cannot be chiseled in stone at the commencement of the
. wre
special prosecutor’s tenure. For example, upon application of
the Attorney General to a special division of this court, it is the
duty of that division to appoint and define the prosecutorial
jurisdiction of the independent prosecutor. 28 U.S.C.
§ 593(b)(1). In defining the independent prosecutor’ s jurisdic-
tion, the special division may include “all matters related to” the
“subject matter with respect to which the Attorney General has
requested the appointment of the independent counsel.” Jd. at
§ 593(b)(3). The special prosecutor may quite sensibly be
authorized to investigate any potential co-conspirators of high
level officials, even though they are not themselves Administra-
tion or campaign officials. See also S.REP. NO. 170, 95th Cong.,
Ist Sess. at 64, 1978 U.S.C.C.A.N. at 4280. Clearly, then, the
scope of a special prosecutor’s investigatory jurisdiction can be
both wide in perimeter and fuzzy at the borders.
Since the relationship between ongoing DOJ investigations
and OIC inquiries may not be apparent from the very beginning
of any given investigation, the Act provides a mechanism
through which the OIC and the DOJ may clarify and fine-tune
their respective jurisdictions. 28 U.S.C. § 594(e). The special
Prosecutor and the Attorney General may reassign matters to
each other, and the Act does not require the intervention by the
special division to effectuate mutually accepted reshuffling of
investigative responsibilities. As the Senate Report noted:
[T]he special prosecutor may conclude that it is nec-
essary to handle a criminal investigation which the
special prosecutor has been assigned in conjunction
with other ongoing criminal investigations being han-
dled by the Department of Justice. Therefore, i[t] is
particularly appropriate that the special prosecutor
have the authority to ask the Attorney General or the
division of court to assign related matters to the spe-
cial prosecutor . . . [T]here will have to be coordina-
tion between the special prosecutor and the Attorney
A-10
General to sort out the jurisdiction of the special
prosecutor as it relates to the ongoing investigations
of the Department of Justice. If these adjustments
require the referral of related matters from the Depart-
ment of Justice to a special prosecutor, there is no need
to involve the division of the court other than to
inform the division of the court that such an arrange-
ment has been reached. The other side of this neces-
sary cooperation will take place under subsection
597(a) which permits the special prosecutor to agree
in writing that certain portions of the investigations
assigned to him by the division of the court continue
to be conducted by the Department of Justice.
S.REP. NO. 170, 95th Cong., 1st Sess. a 69, 1978 U.S.C.C.A.N.
at 4285 (emphasis added). Given such a contemplated rear-
rangement of jurisdiction, we cannot accept the notion that
temporary uncertainties or even overlaps in the division of
jurisdiction between the DOJ and the OIC automatically invali-
date all investigations or prosecutions that were commenced
before the distribution of jurisdiction is finally settled in writ-
ing.
The potential scope of the special prosecutor’ s initial juris-
diction in this case was vast, including investigation of “whether
{former HUD Secretary] Pierce, ... other officials of the
department, and other individuals and entities, may have com-
mitted, from 1984 through 1988 inclusive, the crime of conspir-
acy to defraud the United States or any other federal crimes
relating to [the administration of several HUD programs].” Jn
re Samuel R. Pierce, Jr. at 1-2 (D.C. Cir. Sp. Div. No. 89-5 July
1, 1990) (emphasis added). Accordingly, it is unsurprising that
the determination whether any given individual’s actions were
within the special prosecutor’s jurisdiction was no simple task.
The only clear target of the investigation specified in the court
order was Secretary Pierce himself. Evidently, the OIC believed
A-11
‘
that prior to the USAO’s request for an indictment, the Florida
investigation into local corruption had not yet emerged as du-
plicative of the OIC’s investigation so as to warrant the OIC’s
assertion of jurisdiction.
In addition to the simple fact that the OIC itself may not
have anticipated precisely where DOJ’s investigation of local
corruption involving Briscoe would end up, the grand jury
process leading up to indictments also provided another source
of uncertainly. Time and again, the Supreme Court has recog-
nized that in grand jury proceedings, “the identity of the of-
fender, and the precise nature of the offense, if there be one,
normally are developed at the conclusion of the grand jury’s
labors, not at the beginning.” United States v. Dionisio, 410
U.S. 1, 13 n. 12, 93 S.Ct. 764, 771 n. 12, 35 L_Ed.2d 67 (1973)
(quoting Hendricks v. United States, 223 U.S. 178, 184, 32 S.Ct.
313, 316, 56 L.Ed. 394 (1912)). See also Blair v. United States,
250 U.S. 273, 282, 39 S.Ct. 468, 471, 63 L.Ed. 979 (1919); In
re Grand Jury Proceedings (U.S. Steel-Clairton Works), 525
F.2d 151, 157 (3d Cir.1975) (“At that nascent Stage of the grand
jury’s inquiry, the lower court could not possibly predict
whether indictments would issue, or, if issued, against whom
and for what violations.”). Indeed, even after the OIC issued
written permission to the DOJ to seek the indictments and after
the grand jury returned the indictments, Briscoe contended (in
his original opposition to consolidation) that the Florida and
D.C. indictments did not arise out of the “same acts or transac-
tions.” Joint Appendix (“J.A.”) 276, 278 n.12.
In the face of such uncertainties, and given that the govern-
ment prosecutors were at all times authorized by their respective
superiors to conduct the grand jury proceedings at issue, that the
special prosecutor exercises broad discretion to employ the
resources and personnel of the DOJ,” and that the indictment
4 Pursuant to § 594(d)(1), the special prosecutor may “use . . . the [DOJ]
resources and personnel necessary to perform such independent counsel’s
duties.”
A-12
itself was authorized in writing, the shift of jurisdiction from the
Attorney General to the special prosecutor contemplated by
§597(a) does not create any fundamental defect that “goes to the
very existence of the grand jury itself,” or to the indictment it
produces. United States v. Fein, 504 F.2d 1170, 1173 (2d
Cir. 1974) (dismissing indictment because grand jury’s authority
had expired). Nothing in the language, structure, or purpose of
the Ethics Act indicates that courts should strike down every
indictment that originates in DOJ investigations commenced
prior to formal approval by the OIC.
In other words, where prior to the appointment of a special
prosecutor DOJ had authorized and commenced a grand jury
investigation, a subsequent turn of events that results in the DOJ
investigation encompassing matters within the jurisdiction of
the special prosecutor does not in itself deprive the DOJ-run
investigation up to that point of its validity so long as the special
prosecutor promptly authorizes in writing the continuation of
that investigation or its culmination in indictments. Certainly
as in the case, where neither the OIC nor the DOJ complains of
one another’s trespass onto its “turf,” and where the defendants
Can point to no injury from the simultaneity of the proceedings,
we decline to penalize the OIC’s initial decision that the Florida
investigation was not sufficiently duplicative of its own, as to
require at an earlier point formal, written authorization to pro-
ceed.
Appellants additionally charge that under the Act, the OIC
was not empowered to authorize the USAO to obtain the Florida
indictment, or to consolidate the Florida and D.C. indictments
for joint prosecution by the OIC and the DOJ. To be sure, the
principal aim of the independent counsel provisions is to guard
the court-appointed prosecutor from undue influence by the
Administration in general and the DOJ in particular. See In re
Sealed Case, 829 F.2d at 56. Appellants are therefore accurate
in asserting that it would subvert the purpose of the Act to permit
, A-13
the special prosecutor, once appointed, to hand the essential
parts of his investigation back to the DOJ. But we have no such
Situation here; there has been no surrender of responsibility as
to principal facets of the OIC investigation. The OIC’s own
subsequent investigation, indictments, and prosecution attest to
the fact.’ Short of significant abdication of responsibility for
its investigative charge, the Act permits and indeed contem-
plates substantial cooperation between the OIC and the DOJ.
The Act entrusts the OIC with making the decision as to just
how high a wall of separation between it and the DOJ must be
erected.
For example, the Ethics Act grants the OIC,
full power and independent authority to exercise all
investigative and prosecutorial functions and powers
of the Department of Justice, the Attorney General,
and any other officer or employee of the Department
of Justice, except that the Attorney General shall
exercise direction or control as to those matters that
specifically require the Attorney General’s personal
action under section 2516 of title 18 [relating to
wiretaps].
28 U.S.C. § 594(a). This grant of plenary power, however,
nowhere requires that the OIC exercise that power in complete
isolation from the DOJ. Indeed, as a lesser included power, the
Act specifically contemplates that the OIC may “participat[e]
in court proceedings ... that such independent counsel consid-
ers necessary,” and which presumably are being conducted by
regular DOJ personnel. /d. at § 594(a)(2) (emphasis added).
Moreover, §§ 594(d) and 597(a) expressly empower the OIC to
“Tequest assistance from the Department of Justice in Carrying
. Generally, of course, the Act does not charge this court with policing
the quality of the independent prosecutor’s investigative efforts. It is the
Attorney General, and she alone who may remove the independent prosecutor
“and only for good cause.” 28 U.S.C. § 596(a)(1). See also Morrison v. Olson,
487 U.S. 654, 682, 108 S.Ct. 2597, 2614, 101 L.Ed.2d 569 (1988).
A-14
out the functions of the independent counsel.” The statutory
language does not place any substantive limit on the type of
assistance rendered by the DOJ, but freely permits the OIC to
“use... the [DOJ] resources and personnel necessary to perform
[its] duties.” Id. at § 594(d)(1). Finally, the Act contemplates
that the independent counsel may “consult[ ] with the United
States attorney for the district in which any violation of law with
respect to which the independent counsel is appointed was
alleged to have occurred.” Jd. at § 594(a)(10). In sum, written
permission for the USAO to seek the Florida indictment, sub-
sequent consolidation with the D.C. indictment, and joint prose-
cution of both indictments by the OIC are prosecutorial
strategies that the OIC has full authority to follow.
Of course where the DOJ is called upon to assist with
matters within the OIC’s jurisdiction, the OIC will retain ulti-
mate control of tactical decisionmaking. For example, where
the Attorney General sought a stay of prosecution in an OIC
matter, our trial court ordered that “[o]nly[ iJndependent [c]oun-
sel will be recognized as responsible for the day-to-day conduct
of this case in the United States District Court.” United States
v. North, 713 F.Supp. 1441, 1442 (D.D.C. 1989). Similarly, in
a case in which “the Department of Justice has been working in
concert both with the national intelligence agencies and with
independent counsel to ensure that national security secrets are
safeguarded” and in which “the Attorney General has partici-
pated in framing both the initial charges and the substitution
proposals,” the Fourth Circuit found that the OIC nonetheless
retained the exclusive power to appeal a trial court ruling on the
admissibility of classified information. United States v. Fernan-
dez, 887 F.2d 465, 467 (4th Cir. 1989). In short, while the
independent counsel remains firmly in the driver’s seat of any
investigation or prosecution within his court-designated juris-
diction, the Ethics Act in no way prohibits him from exercising
his authority in cooperation with the DOJ as he has done here.
‘ A-15
B. Venue, Joinder and Prosecutorial Vindictiveness
Appellants argue next that consolidation of the Florida and
D.C. indictments violated their constitutional venue rights and
that the third superseding indictment was motivated by prose-
cutorial vindictiveness directed at Briscoe for having success-
fully transferred the Florida prosecution to D.C. We do not
credit either of these contentions.
l. Venue
The Constitution guarantees criminal defendants the right
to be tried in the state and district in which the alleged crime was
committed. U.S. CONST. Art. Ii, § 2, cl. 3 & amend. VI. It has
long been settled in this circuit and elsewhere, however, that a
defendant may waive his right to proper venue. Jones v. Gasch,
404 F.2d 1231, 1235 (D.C. Cir. 1967), cert. denied, 390 U.S.
1029, 88 S.Ct. 1414, 20 L_Ed.2d 286 (1968). See also Singer v.
United States, 380 U.S. 24, 35, 85 S.Ct. 783, 790, 13 L.Ed.2d
630 (1965) (dictim). Upon defendant Briscoe’s own motion and
in the notable absence of any objection by defendant Steier, the
Florida case was transferred to the District of Columbia pursuant
to FED.R.CRIM.P. 21(b). United States v. Briscoe et al., No.
91-8066 (S.D.Fla. Jan.30, 1992) (J.A. 189). As we observed in
Jones, “[t]he constitutional rationale for these [transfer] proce-
dures [including Rule 21(b)] was the accused’s waiver, by his
motion for the transfer, of his right to trial where the offense
allegedly occurred.” 404 F.2d at 1235. See also 2 CHARLES
ALAN WRIGHT , FEDERAL PRACTICE AND PROCEDURE: CRIMI-
NAL § 306, p. 221 (2d Ed. 1982) (“Certainly a defendant has
a knowing waiver if he . . . moves for transfer to an
otherwise improper venue under Rule 21.”). It seems to us
beyond doubt that appellant Briscoe by initiating the move to
transfer to D.C. waived any subsequent objections based on
improper venue.
Of course, one defendant’s motion cannot, by itself, work
another defendant’s knowing waiver of a privilege. See United
—————E
A-16
States v. Stratton, 649 F.2d 1066, 1076-79 (Sth Cir.1981). Rule
21(b) provides:
For the convenience of parties and witnesses, and in
the interest of justice, the court upon motion of the
defendant may transfer the proceeding as to that
defendant or any one or more of the counts thereof to
another district.
FED.R.CRIM.P. 21(b) (emphasis added). Since Steier did not
formally join Briscoe’s transfer motion, then, it was arguably
error for the district couri to transfer the proceeding as to both
defendants from Florida to the District of Columbia. Here,
however, “the particular facts and circumstances surrounding
th[is] case, including the background, experience, and conduct
of the accused” lead us to conclude that Steier, too, waived his
venue objections. Johnson v. Zerbst, 304 U.S. 458, 464, 58
S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938).
Not only did the Florida district court note Steier’s silence
in its transfer order, but after Steier’s case was transferred to
D.C., Steier affirmatively represented to the D.C. trial court that
he had no objections to the transfer. In his memorandum
opposing consolidation of the Florida and D.C. indictments filed
in June, 1992, Steier made clear that he objected to consolidation
in the trial court not because venue in D.C. was improper, but
because of the prejudice that consolidation would cause him at
trial. See Memorandum in Support of Defendant Maurice David
Steier’s Opposition to Consolidation of Trials, United States v.
Briscoe et al., No. 91-399 at 1% (D.D.C. filed June 4, 1992).
Steier explicitly proclaimed in that memorandum to the district
court: “[i]t is important to note that Mr. Steier was fully prepared
to go to trial in Florida as well as in the District of Columbia.”
Id. at 17-18. In other words, Steier on his own accord affirm-
atively represented to the trial court that he was ready and willing
to stand trial in the District of Columbia.
. A-17
While “‘courts indulge every reasonable presumption |
against waiver,’ of fundamental constitutional rights,” Johnson, |
Kennedy, 301 U.S. 389, 393, 57 S.Ct. 809, 812, 81 L.Ed. 1177
(1937)), we must conclude that both Briscoe and Steier waived
their venue right in the course of the proceedings below. We
consequently refuse to consider the merits of their claim that the
Florida indictment “does not allege a sufficient nexus with the
District of Columbia to establish venue.”
2. Prosecutorial Conduct in Obtaining the
Third Superseding Indictment
Briscoe and Steier argue that the OIC abused the grand jury
process and was motivated by prosecutorial vindictiveness
grand jury and subsequently moved for consolidation. They
maintain that upon transfer of the DOJ’s Florida indictment to
co-conspirators, the latter did not. They contend that the OIC
returned to the grand jury to obtain the third superseding indict-
ment (which finally did indict Briscoe and Steier as co-conspira-
tors) “[a]sa transparent stratagem to cure this problem,” thereby
abusing the grand jury process. Brief for Appellant Briscoe at
15. Finally, they charge that the third Superseding indictment
“up[ped] the ante” in an illicit attempt to penalize Briscoe for
lawfully exercising his right to transfer. Jd at 16 (quoting
Blackledge v. Perry, 417 U.S. 21, 28, 94 S.Ct. 2098, 2102-03,
40 L.Ed.2d 628 (1974)). We disagree.
the first one. More important, however, we agree with the trial
court that “consolidation of the second Superseding indictment
A-18
[and the Florida indictment, once transferred to D.C.,] would
have been appropriate.” United States v. Briscoe et al., 1992
WL 207943, *5 n. 9, No. 91-399 at 7 n.9 (D.D.C. Aug. 14,
1992) (emphasis added).
According to Rule 13 of the Federal Rules of Criminal
Procedure, “[t]he court may order two or more indictments . . .
to be tried together if the offenses, and the defendants if there is
more than one, could have been joined in a single indictment.”
The joinder of multiple defendants in a single indictment is
governed by the following rule:
Two or more defendants may be charged in the same
indictment . . . if they are alleged to have participated
in the same act or transaction or in the same series of
acts or transactions constituting an offense or of-
fenses. Such defendants may be charged in one or
more counts together or separately and all of the
defendants need not be charged in each count.
FED.R.CRIM.P. 8(b).* The First Circuit’s pragmatic explana-
tion of the benefits of joinder is particularly apt here:
4 Rule 8(b) governs joinder of multiple defendants. Rule 8(a), on the other
hand, sets forth the requirements for joinder of multiple offenses:
Two or more offenses may be charged in the same indictment... ina
separate count for each offense if the offenses charged, whether felonies
or misdemeanors or both, are of the same or similar character or are
based on the same act or transaction or on two or more acts or
transactions connected together or constituing parts of a common
scheme or plan.
While Rules 8(a) and 8(b) might be thought to apply in cases where
multiple defendants and multiple offenses are involved, we have repeatedly
refused to concede that Rule 8(a) has any application when the issue concerns
the proper joinder of multiple defendants. In cases involving multiple defen-
dants, “the weight of authority in this circuit and elsewhere regards Rule 8(b)
as providing the sole standard for determining the permissibility of joinder of
offenses.” United States v. Jackson, 562 F.2d 789, 793 (D.C. Cir.1977). See
also United States v. Halliman, 923 F.2d 873, 883 (D.C. Cir. 1991); United
States v. Perry, 731 F.2d 985, 989 (D.C. Cir. 1984).
‘ A-19
Classic examples of such a benefit are when there is
an overlapping of issues, as for example, when some
defendants are charged with transporting stolen goods
in interstate commerce and others are charged with
committing. Where, however, there are no
tive benefits joint proof of facts relevant to all
the acts or transactions, there is no “series,” Rule 8(b)
comes to an end, and joinder is impermissible.
United States v. Jackson, 562 F.2d 789, 794-95 (D.C. Cir. 1977)
(quoting King v. United States, 355 F.2d 700, 704 (ist
Cir. 1966)).
court of joinder—may be made by the Government at some time
before trial.” (emphasis in original)).> In this case, however, the
indictment alone provides sufficient support to uphold a joinder
of the DOJ indictment which originated in Florida and either the
second superseding or the third superseding indictment.
576 (8th Cir. 1988) (en banc) (per curiam) (equally divided court), cert.
denied, 493 U.S. 1047, 110 S.Ct. 846, 107 L.Ed.2d 840 (1990); United States
v. Bledsoe, 674 F.2d 647, 655 (8th Cir.), cert. denied, 459 U.S. 1040, 103
S.Ct. 456, 74 L.Ed.2d 608 (1982); United States v. Morales, 868 F.2d 1562,
1567 (11th Cir. 1989).
4
A-20
Although Steier was not indicted in the second superseding
indictment, he was an unindicted co-conspirator who was al-
leged to have set up the Northwest Investment Company and
other corporations “that would be used to conceal the payment,
receipt and expenditure of money given to DuBois Gilliam for
his oversight of UDAG projects at HUD.” United States v.
Wilson et al., No.91-0399 at { 35 (D.D.C. Jan. 14, 1992) (second
superseding indictment). See also id. at f{ 19,21 & 27. The
second superseding indictment alleged that Steier would receive
payments from Leonard Briscoe for DuBois Gilliam “in the
guise of payments for legal work purportedly performed by .. .
Steier,” id. at { 36, and it alleged numerous specific acts com-
mitted by Steier in furtherance of the described scheme, id. at
fi 47, 51, 52, 54 & 60. The main purpose of the conspiracy
alleged in the second superseding indictment was to secure
UDAG funds for Briscoe’s projects by illegal means. Id. at { 28.
The Florida indictment which had been obtained earlier by the
DOJ, of course alleged virtually the identical purpose when
describing the conspiracy among Briscoe and Steier and alleg-
ing specific offenses for which they were being indicted. United
States v. Briscoe et al., No. 91-8066 (S.D.Fla. Jul. 12, 1991)
(J.A. 109). Therefore, after the Florida indictment was trans-
ferred to the District of Columbia it could well have been
consolidated with the second superseding indictment, since the
two alleged “‘acts ... [that were] connected together or consti-
tute[ed] parts of a common scheme or plan.’” Perry, 731 F.2d
at 990 (quoting Jackson, 562 F.2d at 796 (citation omitted)).
Cf.id. (“there must be a logical relationship between the acts”).
In other words, the OIC would not have had to return to the grand
jury after the Florida indictment was transferred to D.C. in order
to secure consolidation. It could have joined the DOJ and the
OIC prosecutions on the basis of the then-existing second su-
perseding indictment.
If consolidation of the Florida indictment with the second
superseding indictment would have been proper, a fortiori con-
ida indictment was Proper. See United States v. Briscoe et all,
No. 91-399 (D.D.c. May 19, 1992) (third superseding indict-
conspiracy count, we find a distinct absence of any “realistic
C. Wilson’s Waiver of the Statute of Limitations
Lance H. Wilson was convicted on the final count in the
to be performed by said public official . . . concerning applica-
U.S.C. §201(c)(1)(A). United States y. Briscoe et al., No.
91-399 at 54 (count 30) (D.D.c. May 19, 1992). Wilson did not
A-22
deny at trial that he paid for Gilliam and his wife to spend a
weekend in New York on the date mentioned. However, the
first indictment charging Wilson with this offense was returned
on January 14, 1992, more than five years after September 20,
1986. See United States v. Wilson et al., No. 91-0399 at 51
(count 24) (D.D.C. Jan. 14, 1992). The government readily
admits that this count would be time barred in the absence of
Wilson’s waiver of the applicable statute of limitations which
provides:
Except as otherwise expressly provided by law, no
person shall be prosecuted, tried, or punished for any
offense, not capital, unless the indictment is found . . .
_ within five years next after such offense shall have
been committed.
18 U.S.C. § 3282. As the Supreme Court explained in Toussie
v. United States, 397 U.S. 112, 114-15, 90 S.Ct. 858, 860, 25
L.Ed.2d 156 (1970):
The purpose of a statute of limitations is to limit
exposure to criminal prosecution to a certain fixed
period of time following the occurrence of those acts
the legislature has decided to punish by criminal
sanctions. Such a limitation is designed to protect
individuals from having to defend themselves against
charges when the basic facts may have become ob-
scured by the passage of time and to minimize the
danger of official punishment because of acts in the
far-distant past. Such a time limit may also have the
salutary effect of encouraging law enforcement offi-
cials promptly to investigate suspected criminal activ-
ity.
See also WAYNE R. LAFAVE & JEROLD H. ISRAEL, 2 CRIMINAL
PROCEDURE § 18.5(a), pp. 423-24 (1984) (quoting Toussie and
noting other purposes of time bar).
1 A-23
The government locates Wilson’s waiver of the time bar in
a series of letters written by his attorneys on his behalf to the
OIC. Although Wilson does not deny that the letters were
written on his behalf, he argues that their content and the
circumstances surrounding their issuance do not permit an in-
ference of waiver. He contends that the letters waive the statute
of limitations only for specified events which do not include the
alleged September 20th gratuity, that he never signed the letters
himself, and that he never discussed with his attorneys waiving
the time bar with respect to the September 20th New York trip
and “certainly had not authorized them to do so.” Brief for
Appellant Wilson at 18.
Prior to trial, Wilson moved for dismissal of the gratuity
count on time bar grounds and, after denial of his initial motion,
unsuccessfully sought reconsideration. The trial court accepted
the fact that Wilson had never discussed with his attorneys
waiving the statute of limitations as to the gratuity count. None-
theless, the trial court likened a waiver to a contract and, in
examining the objective manifestations of the parties’ intent,
found sufficient evidence that the “broad waivers of the statute
of limitations executed by counsel for defendant Wilson
amounted to a knowing and intelligent waiver of the statute of
limitations encompassed in [the gratuity count] of the indict-
ment.” J.A. 366-67. Wilson objects not only to the trial court’s
legal analysis of waiver of a Statutory right interims of ordinary
contract principles but argues in addition that even if the letters
are viewed as the objective manifestations of Wilson’s intent,
they evince an exclusion rather than inclusion of the gratuity
count from the scope of his intended waivers.
Since United States v. Wild, 551 F.2d 418 (D.C.Cir.1977),
cert. denied, 431 U.S. 916, 97 S.Ct. 2178, 53 L.Ed.2d 226
(1977), the settled law in our circuit has been that a criminal
statute of limitations is not jurisdictional in nature and therefore
can be waived. In Wild, we held that the Statute of limitations
A-24
had been waived “where . . . the defendant followed the advice
of competent counsel and executed an express written waiver
prior to the expiration of the statute of limitations.” 551 F.2d at
419. We reasoned in that case:
[I]f a defendant may waive certain constitutional
rights, he should certainly be capable in this instance
of waiving a statutory right such as the statute of
limitations.° . . . If the strong policies behind these
[constitutional] rights are not violated by a rule per-
mitting them to be waived by a defendant, we cannot
find that the limitation statute’s policy is violated here
where the defendant was fully cognizant of the conse-
quences of such a waiver and decided to execute it on
the advice of his attorney for his own benefit.
Wild, 551 F.2d at 424-25 (emphasis added). While in Wild we
contemplated that an “implicit agreement” may in certain cir-
cumstances be sufficient to waive the time bar, 551 F.2d at 423,
we had no occasion to probe the necessary requirements of
implied waivers since the waiver there had been made expressly.
Nonetheless the reasoning of that decision ultimately rested on
the fact that the defendant had waived the time bar voluntarily,
intelligently, and knowingly so that the purposes of the time bar
were fully preserved.’ Cf United States v. Levine, 658 F.2d 113,
120-21 (3d Cir.1981) (“It is also possible for a defendant know-
ingly and intelligently to waive the statute of limitations, thus
sanctioning a later indictment which, absent such a waiver,
would be untimely.”); id. at 124 n. 17 (“Because waivers of
© The statute of limitations which is concerned with pre-indictment delay
does not ordinarily rise to the level of a constitutional speedy trial right under
the Sixth Amendment. See United States v. Marion, 404 U.S. 307, 92 S.Ct
455, 30 L.Ed.2d 468 (1971); Wild, 551 F.2d at 423.
7 Since the alleged waiver in this case is not an open-ended one, we need
not be concerned with questions of whether the defendant was “prosecuted
within a reasonable length of time” or has sustained “prejudice resulting from
the [untoward] delay.” Wild, 551 F.2d at 425.
1 A-25
limitations statutes, similar to guilty pleas, involve the relin-
quishment of important rights, it has been held that they should
also be made with the advice of counsel and informed by an
understanding of the consequences of waiver.”); United States :
v. Heidecke, 900 F.2d 1155 (7th Cir. 1990) (finding waiver to
have been made knowingly and voluntarily); United States v.
Meeker, 701 F.2d 685 (7th Cir.), cert. denied, 464 U.S. 826, 104
S.Ct. 96, 78 L.Ed.2d 102 (1983) (“The purposes of a time bar
are not offended by a knowing and voluntary waiver of the
defense by the defendant.”(footnote omitted)); United States v.
Caldwell, 859 F.2d 805, 806 (9th Cir. 1988), cert. denied, 489
U.S. 1039, 109 S.Ct. 1173, 103 L.Ed.2d 235) (1989) (“Thus,
unless other lines of caselaw or public policy concerns compel
a different result, the standard for acceptance of a waiver of the
statute of limitations should be the same as the standard in other
waiver contexts, i.e, whether the waiver was knowing and
voluntary.” (citing Wild, 551 F.2d at 424-25)).
Inquiring, then, whether Wilson’s waiver was made know-
ingly, voluntarily, and intelligently, we turn first to the letters
written on Wilson’s behalf by his attorneys to the OIC. Only if
these clearly encompass a waiver of the September 20th gratu-
ity, need we ask further whether the letters can support a finding
of waiver despite the fact that Wilson never signed the letters
and that, as the trial court readily accepted, his attorneys had
never spoken to Wilson specifically about waiving the Septem-
ber 20th gratuity .®
8 The OIC, for example, likens a waiver of the limitation ban to an
individual’s consent to a car search where the “standard for measuring the
scope of a suspects’s consent... is that of ‘objective’ reasonableness.”
Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 1803, 114 L.Ed.2d 297
(1991). In so doing, the OIC overlooks the Supreme Court’s admonition that
“[t}here is a vast difference between those rights that protect a fair criminal
trial and the rights guaranteed under the Fourth Amendment. Nothing, either
in the purposes behind requiring a ‘knowing’ and ‘intelligent’ waiver of trial
rights, or in the practical application of such a requirement suggests that it
A-26
The OIC first contacted Wilson on July 9, 1991, in connec-
tion with “activities involving the Wedgewood Plaza Mall
UDAG?” for which the “statute might run on July 15, 1991.” J.A.
153. Apparently July 15, 1991, would have marked the fifth
anniversary of Wilson’s filing of the firm commitment letter for
the Wedgewood Plaza Mall UDAG with HUD, and it was solely
in this context that Wilson’s attorneys discussed the waiver with
the defendant. Since the government did not obtain a waiver
from Wilson personally, Wilson’s counsel replied on July 11,
1991, that Wilson
agree[d] that the statute [of limitations] will be tolled
for a 90-day period commencing on July 14, 1991 and
ending on October 15, 1991. That period of time will
be excluded from the calculation of any limitations
period within which any charges concerning this
[Wedgewood Plaza Mall] UDAG may be filed.”
J.A. 155. While this was the most broadly-worded concession
in any of the cited letters, the 90-day period it covers actually
expired before the January 14, 1992 indictment of Wilson on
the gratuity charges. !°
On September 23, 1991, the OIC wrote to Wilson request-
ing an extension of the waiver. The reply letter by Wilson’s
attorneys noted that Wilson would waive the statute of limita-
ought to be extended to the constitutional guarantee against unreasonable
searches and seizures.” Schneckloth v. Bustamonte, 412 U.S. 218, 241, 93
S.Ct. 2041, 2055, 36 L.Ed.2d 854 (1973).
> The letter make clear, “{hJowever, [that] the statute of limitations will
not be waived with regard to any other offenses as to which the statute would
be a bar as of July 14, 1991.” J.A. 155. All subsequent letters contain
identically phrased limitations of the waiver. See J.A. 165 & 173.
10 Even if the statute of limitations for the September 20th gratuity was
tolled for 90 days by this waiver, time for prosecuting the offense would
have expired on December 19, 1991, i.e., five years plus 90 days after
September 20, 1991.
, A-27
tions “for an additional 60-day period” only “with respect to the
July 15, 1986 commitment letter for the Wedgewood Plaza Mall
UDAG . . . [and] charges directly involving that matter.” J.A.
165 (emphasis added).
On October 31, 1991, shortly before the fifth anniversary
of the commitment letter Wilson submitted for the Overton
Ridge project, the OIC requested Wilson to waive the statute of
limitations “on the Overton Ridge Project as he has for the earlier
indictment.” J.A. 171. Again, counsel for Wilson discussed
waiver with him solely with respect to the commitment letter,
and Wilson submitted a waiver tolling the statute for a 60-day
period “with respect to the issuance of the November 25, 1986
commitment letter for the Overton Ridge Development UDAG
. . . [and] charges directly involving that matter.” J.A. 173
(emphasis added).
Finally, on November 21, 1991, the OIC requested that
Wilson synchronize the statutory periods of the executed waiv-
ers, Wilson’s attorneys once again discussed the matter with him
exclusively in terms of the commitments letters, and the attor-
neys wrote to the OIC on December 4, 1991, that Wilson would
waive the statute “with respect to the issuance of the July 15,
1986 commitment letter for Wedgewood Mall . . . [and] any
charges directly involving the Wedgewood Mall commitment
letter.” J.A. 177 (emphasis added). None of the requests for a
waiver and none of the waivers made reference to any acts on
September 20, 1986, the date on which Wilson was found to
have provided the illegal gratuity.
A-28
1. The Trial Court’s Failure to Present to the Jury the
Issue of the Relationship Between the Gratuity
and the Commitment Letters
Even assuming that the time bar for a gratuity that “directly
involv[ed]” the Overton Ridge or the Wedgewood Plaza Mall
commitment ietters was validly waived by the written conces-
sions, the illegal gratuity represented by the New York trip
would not necessarily fall within the scope of that waiver.
According to the government’s evidence at trial, Gilliam or-
dered his staff to fund the Wedgewood Plaza Apartments (as
opposed to the Mall) in December, 1985. In subsequent con-
versations and meetings around March and April, 1986, Gilliam
and Briscoe allegedly agreed to cooperate and secure UDAGs
for future projects, beginning with the Wedgewood Plaza Mail.
In late April, Wilson allegedly invited Gilliam to New York and
the trip was consummated on September 20, 1986, shortly after
Gillaim had accepted a firm financial commitment letter leading
to the funding of the Mall project that August. According to the
government, after the New York trip, Briscoe sought funding
for the Overton Ridge project, Gilliam again accepted a false
firm commitment letter from Wilson, but funding for the project
never materialized and the project eventually died.
While it is, of course, always possible that the September
20th gratuity was meant to reward Gilliam for the Wedgewood
Plaza Mall and Overton Ridge UDAGs, it could just as well have
been provided exclusively in connection with the Wedgewood
Plaza Apartments or other official duties not involving the
acceptance of the firm financial commitment letters. In short,
the government was never required to prove at trial that the
illegal gratuity directly involved the two commitment letters
which are specifically addressed in the written waivers executed
by Wilson’s attorneys. Thus, were we like the trial judge to rely
entirely upon the language of the letters in order to determine
the scope of the intended waiver (and disregard the fact that
, A-29
Wilson never spoke to his attorneys about waiving anything
beyond the submission of the firm comniitment letters them-
selves), we would still be compelled to find that the commitment
letters described as the subject of the waiver might have but need
not have “directly involv[ed]” the illegal gratuity on September
20, 1991—that nexus if it existed was one which had to be
established by evidence extraneous to the letters.
When prosecution of a defendant proceeds on one theory
of the case, but would be time barred on any other, the jury may
be presented with two options: either find the defendant guilty
on the theory permitting prosecution, or acquit the defendant.
See Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963, 1
L.Ed.2d 931 (1957). Grunewald involved convictions for a
conspiracy to obtain “no prosecution” rulings from the Internal
Revenue Service in order to shield certain taxpayers from tax
liability. The Court held that it was “incumbent on the [g]ov-
ernment to prove that the conspiracy . . . was still in existence
[during the limitations period] and that at least one Overt act in
furtherance of the conspiracy was performed (during that time].”
Id. at 396, 77 S.Ct. at 970. Since the “no prosecution” rulings
had all been obtained outside the limitations period, petitioners
contended that the prosecution was barred by the statute of
limitations. The government, however, argued that the convic-
tions could be sustained on the theory that the conspiracy was
really one of shielding taxpayers from any liability, including
criminal tax prosecution which could have been brought for
several years after obtaining the “no prosecution” rulings. '! On
this view, the conspiracy continued until the threat of prosecu-
tion for tax evasion had passed, thereby extending criminal
activity well into the limitations period. The Court agreed that
on this theory the conspiracy would not have been barred by the
Statute of limitations and that the evidence in the case indeed
'l Because of the governing six year statute of limitations on tax prose-
cution cases, the potential for prosecution of the Original tax evasion would
cease after six years of evasion. 353 U.S. at 406 & n. 19,77S.Ct. at 975 & n. 19.
A-30
would have permitted the jury to “infer . . . that the conspirators
were prepared and had agreed to engage in further frauds and
bribery if necessary in order to maintain in effect the tentative
rulings obtained [outside the limitations period]” until the threat
of prosecution subsided. Jd. at 410, 77 S.Ct. at 977. But this
theory was not properly charged and nothing indicated that the
jury found this extended conspiracy to have taken place. The
instructions would equally have permitted the jury to convict
solely based on the more limited, time-barred conspiracy to
obtain the “no prosecution” rulings. The Court concluded that
“[s]ince, under the judge’s charge, the convictions . . . might
have rested on an impermissible ground . . . they cannot stand.”
Id. at 415, 77 S.Ct. at 979.
Similarly, the Eleventh Circuit held that a trial court
could not refuse to charge the jury with determining that the
offense was committed during the limitations period. United
States v. Edwards, 968 F.2d 1148 (11th Cir. 1992), cert.
denied, —U.S.—, 113 S.Ct. 1006, 122 L.Ed.2d 155 (1993).
“{OJjnce . . . conflicting evidence [is] presented [on the limita-
tions issue, ] the question of whether the [g]overnment instituted
the prosecution ... in a timely manner bec[omes] an issue for
the jury to determine.” Jd. at 1153. At that point, the jury must
be “properly instructed [to] determine whether the . . . offense
occurred [outside of the limitations period].” Jd. See also
United States v. Alfonso-Perez, 535 F.2d 1362 (2d Cir.1976);
cf. United States v. Perholtz, 842 F.2d 343, 364-65 (D.C.Cir.),
cert. denied, 488 U.S. 821, 109 S.Ct. 65, 102 L.Ed.2d 42 (1988)
(jury was properly charged to find that defendants caused the
mailing of documents authorizing the payment of funds in
connection with the illegal scheme; “Since the mailings that
clearly furthered the scheme to defraud occurred within five
years of the date of the indictment, the mail fraud prosecution
is not time barred.”/d. at 365.). Since the jury that convicted
Wilson was never made aware of the requirement that the illegal
gratuity be connected to the Wedgewood Plaza Mall or the
1 A-31
Overton Ridge commitment letters in order to fall within the
time bar, we have no way of knowing whether it convicted
Wilson for a gratuity that was time barred or for the one that was
arguable within the scope of his waiver. Cf. Allred v. United
2. Wilson’s Failure to Request a Proper Jury Instruction
Ordinarily where a case goes forward on a theory which
places the offense within the limitations period, it is incumbent
upon the defendant at the close of the trial to request a jury
instruction requiring that his guilt be determined solely in terms
of conduct not barred by the applicable statute of limitations.
See, e.g., Alfonso-Perez, 535 F.2d at 1364 (requesting instruc-
tion); see generally FED.R.CRIM.P. 30 (“No party may assign
as efror any portion of the charge or omission therefrom unless
that party objects thereto before the jury retires to consider its
verdict, stating distinctly the matter to which that party objects
and the grounds of the objection.”); United States y. Tarantino,
846 F.2d 1384, 1401 (D.C. Cir.), cert. denied, 488 U.S. 840, 109
S.Ct. 108, 102 L.Ed.2d 83 (1988) (reviewing jury instructions
to which defendant failed to object only for plain error). Ac-
cordingly, in cases where the defendant failed to request a jury
instruction limited to the theory on which prosecution of the
offense was not time barred, courts have declined to consider
challenges to the jury charge on appeal. See United States v.
Walsh, 928 F.2d 7, 12 (1st Cir. 1991); United States vy.
Cianchetti, 315 F.2d 584, 589 (2d Cir. 1963). Nonetheless, we
believe in the instant situation that the unconditional and final
nature of the district court’s pretrial ruling relieved Wilson of
any obligation to reiterate his limitations concerns at the time
when the jury was instructed.
A-32
Under FED.R.CRIM.P. 12 defenses which are “capable of
determination without the trial of the general issues may be
raised before trial by motion.” /d. at 12(b). Pretrial motions,
such as a motion to dismiss a prosecution as time barred, “shall
be determined before trial unless the court, for good cause,
orders that it be deferred for determination at the trial of the
general issue.” /d. at 12(e). “[G]ood cause” exists, and indeed
a decision on a motion should be deferred, if disposing of the
motion involves deciding issues of fact that are inevitably bound
up with evidence about the alleged offense itself. “If a pretrial
claim is ‘substantially founded upon and intertwined with’
evidence concerning the alleged offense, the motion falls within
the province of the ultimate finder of fact and must be deferred.”
United States v. Shortt Accountancy Corp., 785 F.2d 1448,
1452, (9th Cir.)(quoting United States v. Williams, 644 F.2d
950, 952-53 (2d Cir.1981)), cert. denied, 478 U.S. 1007, 106
S.Ct. 3301, 92 L.Ed.2d 715 (1986). See also 1 CHARLES ALAN
WRIGHT, FEDERAL PRACTICE AND PROCEDURE: CRIMINAL
§ 193, p.708 (2D ED.1982) (“If [the statute of limitations defense]
is raised by motion to dismiss, the court has discretion . .. when to
determine it.... If... factual matters are involved, such as
when a conspiracy ended or when an offense was consummated,
the limitations question should be put off until the trial.”); id.
at § 194; United States v. Stone, 444 F.Supp. 1254, 1256
(E.D.Wis.), aff'd, 588 F.2d 834 (7th Cir.1978) (affirmative
defense of withdrawal from the charged conspiracy outside the
limitations period could not be determined pretrial because the
government might succeed in proving at trial that the defendant
committed an overt act in furtherance of the conspiracy within
the limitations period).
In the case at hand, the issue of whether the gratuity was
directly related to the acceptance of the two commitment letters
for which the time bar had been waived was just such a fact
inextricably interwoven with the evidence about the commis-
sion of the offense itself. To be sure, Wilson’s motion to dismiss
on how to interpret the scope of the written waivers assuming
his objection at trial and request that the jury be charged with
determining whether the government had borne its burden of
proof in establishing the connection between the gratuity and
the Overton Ridge and Wedgewood Plaza Mall commitment
letters.
A-34
Here, however, the trial judge’s pretrial ruling on the
motion to dismiss was a definitive and sweeping one which
rendered futile any later attempts by the defendant to resurrect
the time bar objection. The pretrial ruling totally absolved the
government of its burden at trial of having to demonstrate any
connection between the gratuity and the two non-time-barred
commitment letters. In the original order, the court tersely held
“that the waivers of the statute of limitations executed by
defendant Wilson encompassed the conduct alleged in Count 30
[the illegal gratuity count] of the indictment. Therefore, defen-
dant Wilson’s knowing and intelligent waiver of the statute of
limitations encompassed that count as well as the others.” J.A.
334 (emphasis added). Count 30 of the indictment, however,
indicted Wilson for having provided an illegal gratuity “[o]n or
about September 20, 1986, .. . to. . . Gilliam, for and because
of official acts performed and to be performed by said public
official . . . concerning applications for [UDAGs].” United
States v. Briscoe et al., 91-399 at 54 (count 30) (D.D.C. May 19,
1992).
The court, in effect, construed the waiver as encompassing
no limitation at all on the relationship between the gratuity for
which Wilson could be convicted under count 30 and any
particular commitment letters. There was no discussion in his
opinion of evidence or theories which the government expected
to prove at trial, or any suggestion that the government would
need to muster particularized evidentiary support at trial in
support of the determination that the gratuity fell within the
scope for the waiver. When the court affirmed its original order
on reconsideration, the reasoning was equally categorical. With
- no hint of any factual link vel non between the commitment
letters referenced in Wilson’s written waiver and the gratuity,
the court unequivocally reiterated:
[T]he waivers drafted by defendant Wilson’s counsel
[are] sufficiently broad and sweeping to encompass
( A-35
that conduct [i.e. the gratuity charge).... [T]he
Court finds that the broad waivers of the statute of
limitations executed by counsel for defendant Wilson
amounted to a knowing and intelligent waiver of the
Statute of limitations encompassed in Count 30 [the
gratuity count] of the indictment.
J.A. 366-67 (emphasis added). In other words, the court uncon-
ditionally held that the waiver encompassed any illegal gratuity
that would fall under count 30 of the indictment, and the trial
court’s decision was in no manner contingent upon factual
support to be adduced by the government at trial showing a
nexus with particular commitment letters or a subsequent jury
finding to that effect. This reading of the waiver letters was
obviously overly broad.
We believe that under these circumstances, where the trial
court had explicitly and definitively settled the scope of the
waiver issue prior to trial, thereby excluding it wholesale from
the trial process, it would have been senseless for the defendant
to argue at the close of the trial that the relation between the
gratuity and the commitment letters was an undecided matter of
fact to be presented to the jury.
To sum up, the district court at most was entitled to decide
pretrial that the illegal gratuity prosecution could proceed inso-
far as it directly involved the Wedgewood Plaza Mall and
Overton Ridge commitment letters. However, by deciding prior
to trial that Wilson had waived the statute of limitations with
respect to the gratuity count in its entirety, the trial judge
effectively exempted the government from demonstrating at
trial and the jury from deciding that the gratuity truly related to
the letters referenced in the written waivers. The jury, then, may
well have decided that the New York trip constituted an illegal
gratuity but that it did not directly involve either the Wedgewood
Plaza Mall or the Overton Ridge commitment letters and instead
represented an unlawful reward for the Wedgewood Plaza
wy pate
A-36
Apartment funding or the performance of some other official
act. As a result, even assuming that Wilson’s attorneys validly
waived the statute of limitations for Wilson with respect to the
commitment letters and any charges directly involving the let-
ters, we have no way of knowing whether the jury convicted
Wilson for a gratuity that directly involved these letters or a
time-barred gratuity that did not directly relate to these letters.
Because, then, the jury may have convicted Wilson on an
impermissible ground, the conviction cannot stand.
D. Remaining Challenges
We have carefully reviewed the remainder of appellants’
challenges and find them meritless; we see no need to discuss
them in detail here. We note, however, that contrary to the
OIC’s assertion, Steier did raise an objection to instructing the
jury on the lesser included illegal gratuity charge along with the
greater offense of bribery. See J.A. 1589. Nonetheless, we have
no difficulty finding on the facts of this case that all the elements
“for the . . . prosecution . . . to be entitled to a lesser included
offense charge” over defendant’s objection were satisfied, in-
cluding the requirements that the jury could “consistently [have
found] the defendant innocent of the greater and guilty of the
lesser included offense.” United States v. Brewster, 506 F.2d 62,
70-71 (D.C. Cir. 1974) (quoting United States v. Whitaker, 447
F.2d 314, 317 (D.C. Cir. 1971)). See also United States v.
Harary, 457 F.2d 471, 478 (2d Cir. 1972). The jury, for example
could consistently have found (and in this case did find) that
Steier provided gratuities “otherwise than as provided by law
for the proper discharge of official duty” in violation of 18
U.S.C. § 201(c)(1), but without the requisite “corrupt[]” intent
which would constitute bribery under 18 U.S.C. § 201(b)(1).
On the basis of applicable law and the facts of this case, we
also find no reason to overturn the district court’s denial of bills
of particular to Steier and Briscoe, its refusal to grant Steier’s
severance motion, or its denial of Briscoe’s special verdict form.
1 A-37
Furthermore, the trial court did not err in applying the sentencing
guidelines to Briscoe’s conviction because the trial court could
have found on the preponderance of the evidence that the
gratuity involved payments after November 1, 1987. See United
States v. Dale, 991 F.2d 819, 853-54 (D.C. Cir.1993) (sentenc-
ing guidelines apply to offenses that begin before November 1,
1987, and continue after that date; and trial court may find, on
the preponderance of the evidence, that conspiracy continued
after November 1, 1987, notwithstandi g that jury’s general
verdict form did not so specify). Finally, the trial court’s evi-
dentiary rulings and its occasional curtailment of cross-exami-
nation reveal no abuse of discretion warranting reversal. A
somewhat more troublesome challenge involves the objected-to
admission of Secretary Pierce’s statement that Briscoe was
“greedy” and a “crook”: that hearsay statement was Clearly
prejudicial and was only marginally relevant to the asserted
purpose of showing that Pierce was not—as defendants main-
tained—approving UDAG funding for Briscoe on affirmative
action grounds. In light of the weight of the remaining evidence
presented in the course of the three-month trial, however, we
find the error ultimately harmless. See Kotteakos v. United
States, 328 U.S. 750, 765, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557
(1946); United States v. Baker, 693 F.2d 183, 189 (D.C. Cir.
1982).
Il. Conclusion
For reasons set forth, we reverse Wilson’s conviction and
affirm the convictions of Briscoe and Steier.'2
It is so ordered.
2 We deny appellant Briscoe’s and appellant Wilson’s motions to strike
portions of the government’s brief in light of our disposition of this case which
did not require consideration of the disputed material.
A-38
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES
v.
LEONARD E. BRISCOE,
LANCE H. WILSON, and
MAURICE DAVID STEIER
Criminal Nos. 91-399 SSH
and 92-86 SSH
ORDER
Before the Court is defendant Briscoe’s motion to dismiss —
the Steier indictment, as adopted by defendant Steier. The Court
finds that there has been no violation of the Speedy Trial Act in
connection with the indic.ment in United States v. Briscoe and
Steier. For the reasons stated in the Government’s opposition,
fifteen non-excludable speedy trial act days had run as of
January 28, 1992, the date the District Court for the Southern
District of Florida granted defendant Briscoe’s transfer motion.
The speedy trial clock was tolled until March 17, 1992, the date
this Court received all of the documents from the Florida District
Court. 18 U.S.C. § 3161(h)(1)(G). The clock was further tolled
between April 15, 1992, when defendant Briscoe filed his
motion to modify conditions of pre-trial release, and May 15,
1992, when this Court resolved that motion. The time period
between April 22, 1992, when the Government moved to con-
solidate, and August 7, 1992, when this Court granted that
motion, also is excludable. The period between July 27, 1992
and August 13, 1992, additionally is excludable as time resulting
from the resolution of the Government’s motion for a booking
order for defendant Steier. 18 U.S.C. § 3161 (h) (1) (F). Finally,
all time between August 13 until trial is excludable due to
overlapping motions by defendants. Thus only 43 speedy trial
i A-39
act days have elasped between the date of defendant Steier’s
arraignment and the date of trial. The Court further finds that
the Office of Independent Counsel’s delegation of authority to
the Department of Justice to investigate matters that resulted in
the Steier indictment was permissible under the Ethics in Gov-
ernment Act, 28 U.S.C. §§ 591-98 (the “Act”). As this Court
has previously found, cooperation between the Department of
Justice and the Office of Independent Counsel at the initiative
States v. Briscoe, Wilson and Steier, No. 91-399 (D.D.C. August
14, 1992) (Opinion regarding consolidation). Accordingly, it
ORDERED, that the motion is denied.
SO ORDERED.
/s/___Stanle arris
Stanley S. Harris
United States District J udge
Date: 9-28-92
A-40
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES
v.
LEONARD E. BRISCOE,
LANCE H. WILSON,
and
MAURICE DAVID STEIER
Criminal Nos. 91-399 SSH
and 92-86 SSH
ORDER
Before the Court is defendant Briscoe’s motion for a bill
of particulars, as adopted by defendants Wilson and Steier. The
purpose of a bill of particulars is to inform the defendant of the
charges against him with sufficient precision to allow him to
understand the charges, to prepare his defense, and to be pro-
tected against retrial on the same charges. United States v.
Butler, 822 F.2d 1191, 1193 (D.C. Cir. 1987). The Court finds
that the Third Superseding Indictment is sufficiently precise to
enable defendant Briscoe to prepare his defense, particularly
given defendant Briscoe’s repeated assertions that his defense
has been prepared for over the past year. Accordingly, it hereby
is
ORDERED, that the motion is denied.
SO ORDERED.
/s /_ Stanley S. Harris
Stanley S. Harris
United States District Judge
Date: September 25, 1992
1 A-4l1
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES
Vv.
LEONARD E. BRISCOE, SR.
LANCE W.WILSON
MAURICE DAVID STEIER.
Criminal No. 91-399 SSH
UNITED STATES
. 2
LEONARD E. BRISCOE, SR.
MAURICE DAVID STEIER.
Criminal No. 92-86 SSH
ORDER
Before the Court are the Government’s motion and supple-
mental motion to consolidate indictments and trials. On consid-
eration of the motions and the defendants’ oppositions, the Court
consolidates trial of these cases pursuant to Fed.R.CrimP. 13.
The Court soon will issue an Opinion setting forth the reasons
for its decision, but issues this Order now for the parties’
information. The Court also expresses its intention, absent
extraordinary intervening circumstances, to adhere to the pre-
viously-set September 22, 1992, trial date. Accordingly, it
hereby is
ORDERED, that United States y. Briscoe, Wilson, and
Steier, Criminal No. 91-399, and United States v. Briscoe and
Steier, Criminal No. 92-86, are consolidated.
A-42
SO ORDERED.
/s /_ Stanley S. Harris
Stanley S. Harris
United States District Judge
Date: August 7, 1992
1 A-43
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES
Vv.
LEONARD E. BRISCOE, SR.
LANCE W.WILSON
MAURICE DAVID STEIER.
Criminal No. 91-399 SSH
UNITED STATES
V.
LEONARD E. BRISCOE, SR.
MAURICE DAVID STEIER.
Criminal No. 92-86 SSH
OPINION
Before the Court are the Government’s motion and supple-
mental motion to consolidate indictments and trials and the
defendants’ opposition thereto.' The motions were filed jointly
by the Office of Independent Counsel (OIC) and the Department
of Justice (DOJ) through the United States Attorney for the
District of Columbia.” They seek consolidation of United States
v. Briscoe, Wilson, and Steier, Criminal No. 91-399, which was
initiated here by the OIC, and United States v. Briscoe and
Steier, Criminal No. 92-86, which originally was brought by the
| The term “Government” in this case refers collectively to the Inde-
pendent Counsel and the United States Attorney for the District of Columbia.
2 The Independent Counsel in this case was appointed to investigate
alleged corruption within the Department of Housing and Urban Develop-
ment.
A-44
United States Attorney for the Southern District of Florida.
After careful review of the entire record, the Court consolidated
the two indictments for trial by Order of August 7, 1992. This
Opinion sets forth the reasons for the Court’s Order. Defendants
opposed consolidation on a number of grounds. The Court
addresses only those contentions that it considers significant.
Background
On July 11, 1991, the OIC filed an indictment against
defendant Briscoe in this district, Criminal No. 91-399 (OIC
indictment). The OIC subsequently filed three superseding
indictments, the last of which is United States v. Briscoe, Wilson,
and Steier (third superseding indictment). On June 12, 1991,
the United States Attorney for the Southern District of Florida
returned an indictment against defendants Briscoe and Steier, in
that district’s Criminal No. 92-8066 (the South Florida indict-
ment). On defendant Briscoe’s motion, the South Florida in-
dictment was transferred to this District on January 28, 1992.
The South Florida indictment, this Court’s Criminal No. 92-86,
was assigned to the undersigned as related to the OIC indict-
ment.
Following the transfer, the OIC and the United States
Attorney jointly moved to consolidate the OIC indictment with
the South Florida indictment. Tne Government initially moved
to consolidate the OIC’s second superseding indictment with the
South Florida indictment. Before defendants’ oppositions to
that motion were filed, the OIC filed the third superseding
indictment, and the Government filed a supplemental motion to
consolidate.
The South Florida indictment charges defendants Briscoe
and Steier with three counts of bribery, three counts of paying
an illegal gratuity, and conspiracy to commit those offenses.
3 Defendants Briscoe and Steier are charged in that indictment with
violating 18 U.S.C. §§ 201(b)(1)(A) & (B) and 201(c)(1)(A).
A-45
Count one of the indictment alleges that defendants conspired
to provide bribery money to DuBois Gilliam, Deputy Assistant
Secretary for Program Policy Development and Evaluation at
HUD. (South Florida indictment at 2-6). Gilliam administered
HUD’s Urban Development Action Grant program (UDAG).
The alleged purpose and object of the conspiracy was to obtain
HUD approval under the UDAG program for various projects
developed by defendant Briscoe. (Jd. at 3-4.) The defendants
allegedly disguised the payments to Gilliam as attorney’s fees
to Steier. Steier allegedly formed various corporations to con-
ceal the true recipient of the payments. The six other counts of
the South Florida indictment charge the defendants with bribery
and paying an illegal gratuity.“ (Id. at 4.)
The OIC indictment charges defendants Briscoe and Wil-
son with submitting false statements to HUD in connection with
UDAG applications for various projects developed by Briscoe,
including the projects at issue in the South Florida indictment.
(OIC indictment at 28-54.) For each project, Wilson, a First
Vice President of a financial institution, falsely represented that
his employer had issued the requisite “firm financial commit-
ment” for the project to qualify under the UDAG program.
Briscoe then represented that he accepted the financial commit-
* Counts two through five charge defendants Briscoe and Steier with
bribery and paying an illegal gratuity to Gilliam in connection with the
Wedgewood Plaza Apartments and Wedgewood Plaza Mall projects in
Riviera Beach, Florida. Counts six and seven charge defendant Briscoe with
the same offenses in connection with the Palm Glade Apartments project in
Belle Glade, Florida.
> Defendants Briscoe and Wilson allegedly submitted false statements
to obtain UDAGs for Wedgewood Plaza Mall, Overton Ridge Development,
and Palm Glade Apartments. The OIC indictment addresses five separate
false Statements and charges the defendants with three separate offenses for
each one under 18 U.S.C. §§ 1001, 1010, and 1012. The OIC indictment also
charges the defendants with wire fraud and mail fraud in violation of 18
U.S.C. §§ 1341 and 1343.
A-46
ment. The false statements were submitted to DuBois Gilliam
at HUD to obtain UDAGs. Id.
The OIC indictment also charges defendants Briscoe, Wil-
son, and Steier with conspiracy. Count one alleges that the
defendants conspired “to use illegal means to ensure that HUD
would approve and award UDAG funds” to Briscoe’s projects,
including projects that did not qualify for HUD grants. (OIC
indictment at 12, | 28.) The defendants allegedly conspired to
obtain HUD grants for various projects by submitting false
statements to HUD and making illegal payments to DuBois
Gilliam in exchange for approving the grants. The illegal pay-
ment portion of the conspiracy is the same bribery scheme
alleged in the South Florida indictment. Thus, the conspiracy
in the OIC indictment encompasses both the South Florida
bribery charges and the false statements charges.
The OIC indictment names DuBois Gilliam as an unin-
dicted coconspirator.° Both Briscoe and Steier were unindicted
coconspirators in the OIC’s second superseding indictment and
are named as indicted coconspirators in the third superseding
indictment.’
© ‘The indictment also names Darrell Wood, who is deceased, as an
" The conspiracy charge in the OIC’s second superseding indictment also
encompassed the bribery scheme charged in tbe South Florida indictment.
Although Steier was not charged in any counts of the second superseding
indictment, he was named in numerous paragraphs of the conspiracy charge
which described the bribery scheme. (See second superseding indictment
Ti 19, 21, 22, 35, 36, 47, 51, 52, 54, 58, and 60.) The second superseding
indictment also described Briscoe’s role in the bribery portion of the conspir-
acy. (See id. ¥f 17, 34, 36, 46, 50, 51, 52, 53, 55, 56, and 57.) The third
superseding indictment incorporated paragraphs further describing the brib-
ery scheme from the South Florida indictment. (Compare third superseding
indictment {ff 34-39, and 44-45, with, South Florida indictment pp. 4-5 ¥f 1-7;
compare third superseding indictment {J 57, 62, 64, 67, 68, 99, 102, and 103,
with South Florida indictment pp. 5-7, ¥f 1-8.)
A-47
Rule 13 provides that “[tJhe court may order two or more
indictments or informations or both to be tried together if the
offenses, and the defendants if there is more than one, could have
been joined in a single indictment or information.”
Fed.R.Crim.P. 13. Thus, a court may consolidate indictments
for trial if the offenses could be joined in a single indictment
under Rule 8. United States v. Burkley, 591 F.2d 903, 918
(D.C.Cir.1978), cert. denied, 440 U.S. 966, 99 S.Ct. 1516, 59
L.Ed.2d 782 (1979); United States v. McDaniel, 538 F.2d 408,
411 (D.C.Cir.1976).
“Rule 8(b) governs the joinder of defendants and offenses
when there are multiple defendants.” United States v. Halliman,
923 F.2d 873, 882 (D.C.Cir.1991); United States v. Perry, 731
F.2d 985, 989 (D.C.Cir.1984). Rule 8(b) provides:
Two or more defendants may be charged in the same
indictment or information if they are alleged to have
participated in the same act or transaction or in the
same series of acts or transactions constituting an
offense or offenses. Such defendants may be charged
in one or more counts together or separately and all
of the defendants need not be charged in each count.
The rule extends to offenses comprised of the “same series
of acts or transactions.” Jd. That language “may not be read to
embrace similar or even identical offenses, unless those offenses
are related.” Perry, 731 F.2d at 990. “Acts or transactions form
a ‘series’ within the meaning of the rule if they ‘constitute parts
of a common scheme or plan.”” Halliman, 923 F.2d at 883
(quoting Perry, 731 F.2d at 990, and United States v. Jackson,
562 F.2d 789, 796 (D.C.Cir.1977)). “In other words, there must
be a logical relationship between the acts or transactions within
the series.” Perry, 731 F.2d at 990.
A-48
The OIC indictment alleges on its face that the defendants
participated in a common scheme or plan that included the
offenses alleged in the South Florida indictment.® The offenses
in the South Florida indictment are a subset of the overall “series ©
of acts or transactions” in the OIC indictment. The acts within
the overall series are “logically related” through a common
purpose to obtain jUDAG grants for projects developed by
defendant Briscoe.” Cf. United States v. Nicely, 922 F.2d 850
(D.C.Cir.1991) (joinder of two conspiracies with common par-
ticipants but with distinct “victims” not appropriate). Thus,
joinder of the offenses in a single indictment would be appro-
priate under Rule 8(b). See McDaniel, 538 F.2d at 411.
Defendant Briscoe contends that the offenses could not
have been charged in a single indictment originally because of
venue problems, and therefore that consolidation is improper.
The OIC has stated from the outset that no district originally had
venue of both the bribery charges and the false statements
charges. However, the original venue problems do not bar
consolidation. Defendants Briscoe and Steier waived any ob-
jection to venue of the South Florida charges in this district
8 The Court may determine whether joinder is appropriate from the
allegations of the indictment. See Perry, 731 F.2d at 990-91 (basis for joinder
may be determined from the pretrial evidence if it is not apparent from the
indictment).
Contrary to defendants’ assertions, the logical relationship between the
offenses in the two indictments was apparent even on the face of the OIC’s
ing indictment did not allege that defendant Wilson “participated in any of
the events described in the [South Florida] indictment.” (Briscoe’s Opp. at
15; see Wilson’s Opp. at 17-18.) Thus, they argue that the third superseding
indictment was obtained for the improper purpose of eliminating an obstacle
to consolidation. However, the OIC’s second superseding indictment alleged
that Wilson participated in a conspiracy with Briscoe and Steier and that the
conspiracy included the events described in the South Florida indictment.
Therefore, consolidation of the second superseding indictment would have
been appropriate.
1 A-49
through the motion to transfer.!° Logic, fairness, and consid-
erations of judicial economy dictate that the defendants may not
now prevent an otherwise appropriate consolidation by asserting
the original venue problems. !!
The language of Rule 13 is permissive with regard to
consolidation of appropriate indictments, and therefore the
Court should consider the effect of consolidation on judicial
economy. Burkley, 591 F.2d at919. The Court also must weigh
any possible prejudice to the defendants. Id. The Court finds
that consolidation will not prejudice the defendants because
evidence relating to the charges in each indictment would be
admissible in a separate trial on the other. Moreover, consoli-
dation will prevent duplication of evidence, thereby conserving
the resources of the Court.
Defendants contend that consolidation would violate the
purpose and the specific terms of the Ethics in Government Act
(Ethics Act), 28 U.S.C. §§ 591-98 (1982 & Supp. 1992), under
which the OIC was appointed. Defendants argue that a joint
prosecution would undermine the “independence” of the Inde-
pendent Counsel.
The Ethics Act is designed in part to prevent the DOJ from
interfering with an independent counsel’s investigation. See
United States v. Fernandez, 887 F.2d 465, 468 (4th Cir.1989);
In re Sealed Case, 829 F.2d 50, 56 (D.C.Cir. 1987), cert. denied,
484 U.S. 1027, 108 S.Ct. 753, 98 L.Ed.2d 765 ( 1988). To that
end, the Act “effects a sweeping transfer of prosecutorial and
investigative authority from the Attorney General to inde-
” Defendant Steier did not oppose defendant Briscoe’s motion to transfer.
ss Defendants contend that the third superseding indictment suffers
additional flaws that they will address in pretrial motions. The Court does
not resolve those issues, except to conclude that the alleged flaws do not bar
consolidation.
'2 Defendant Steier filed a motion to sever on August 10, 1992. The
Court does not resolve that motion, which is not yet at issue.
A-50
pendent counsel.” Fernandez, 887 F.2d at 468; see 28 U.S.C.
§ 594(a). Such broad authority ensures that an independent
counsel may pursue its investigation “without intervention,
supervision or control by the Department of Justice.” Fernan-
dez, 887 F.2d at 468 (quoting S.Rep. No. 170, 95th Cong., 2d
Sess. 66, reprinted in 1978 U.S.Code Cong. & Ad.News 4216,
4282).
The Ethics Act does not prohibit cooperation between the
DOJ and an independent counsel. In fact, certain types of
cooperation and consultation are expressly permitted. See, e.g.,
28 U.S.C. § 594(a)(10) (authorizing independent counsel to
consult United States Attorney); § 594(d) (requiring DOJ to
provide administrative support and to pay expenditures of inde-
pendent counsel); and § 594(e) (referral of related matters).
Additional cooperation between the two offices is consistent
with an independent counsel’s broad authority under the Act.
See In re Sealed Case, 829 F.2d at 56. Furthermore, cooperation
at the initiative of an independent counsel does not violate the
Act’s purpose to prevent interference by the poy.°
Defendants contend that consolidation would violate § 597(a)
of the Act which requires the DOJ to suspend any investigation into
a matter within an independent counsel’s mandate. That section
provides:
Whenever a matter is in the prosecutorial jurisdiction
of an independent counsel or has been accepted by an
independent counsel . . . the Department of Justice,
the Attorney General, and all other officers and em-
ployees of the Department of Justice shall suspend all
'3 The OIC contends that defendants do not have “standing” to assert
that consolidation would impinge on its independence from the DOJ. The
Court of Appeals reached the merits of an objection similar to defendants
without addressing standing in In re Sealed Case, 829 F.2d at 55-56. The
Court concludes that defendants have standing under the Ethics Act to object
a violation of the autonomy of the OIC.
A-51
investigations and proceedings regarding such matter
except to the extent required by subsection 594(d)(1),
and except insofar as such independent counsel agrees
in writing that such investigation or proceedings may
be continued by the Department of Justice.
Id. § 597(a).
Citing the legislative history of the section, defendants contend
that it prohibits an independent counsel from delegating any
important or substantial portion of its investigation to the DOJ
under any circumstances. See S.Rep. No. 170, 95th Cong. 2d
Sess., reprinted in 1978 U.S.Code Cong. and Admin.News
4284, 4292. The Court of Appeals for this Circuit has stated
that the purpose of § 597(a) is “preventing investigations by the
Department of Justice which would duplicate and possibly
impede the work of the Independent Counsel.” In re Sealed
Case, 829 F.2d at 56. In that case, the Court of Appeals held
that a parallel appointment to the Iran/Contra independent coun-
sel from the Attorney General did not violate § 597(a). The
court specifically noted that the parallel appointment made the
Iran/Contra independent counsel an office “within” the Depart-
ment of Justice. Jd. Nevertheless, the court upheld the parallel
appointment because the independent counsel remained “free of
ongoing supervision by the Attorney General.” Jd.
On the facts before the Court, a joint prosecution on the
two indictments is comparable to the parallel appointment in the
Iran/Contra investigation. Consolidating the South Florida in-
dictment with the OIC indictment for trial wil] require the OIC
and the DOJ to cooperate, but it will not subject the OIC to the
supervision or control of the DOJ.'4* A joint prosecution will
not reduce the OIC’s autonomy or its prosecutorial authority.
Therefore, consolidating the indictments will not violate the
Ethics Act.
'* The Court expects the OIC and the United States Attomey to coordi-
nate their trial effort so that the case may proceed smoothly. Such coordina-
tion does not require the OIC to submit to the supervision of the DOJ.
A-52
Conclusion
The Ethics Act does not bar a joint prosecution of the OIC
indictment and the South Florida indictment. The OIC indict-
ment alleges that defendants Briscoe, Wilson, and Steier partici-
pated in a series of acts or transactions constituting a common
scheme. The alleged scheme includes the offenses charged in
tne South Florida indictment against defendants Briscoe and
Steier. Accordingly, the Court concludes that the offenses in
the two indictments are logically related and that consolidation
is appropriate under Rule 13. Finding that a joint trial would
conserve substantial judicial resources, the Court consolidates
the indictments for trial.
/s /_ Stanley S. Harris
Stanley S. Harris
United States District Judge
Date: August 14, 1992
1 A-53
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
UNITED STATES OF AMERICA,
vs.
LEONARD BRISCOE and
MAURICE DAVID STEIER,
Defendants.
CASE NO. 91-8066-Cr-PAINE
ORDER ON DEFENDANT BRISCOE’S MOTION
FOR BILL OF PARTICULARS
THIS CAUSE is before the Court on defendant Briscoe’s
Motion for Bill of Particulars and was referred to United States
Magistrate Judge Barry S. Seltzer. For the reasons set forth
below, defendant Briscoe’s Motion for Bill of Particulars is
hereby DENIED as to each and every request.
Defendant Leonard Briscoe is charged by way of a seven
(7) count Indictment with violations of federal conspiracy,
bribery and gratuity laws. Count I charges Briscoe and code-
fendant Maurice David Steier with a conspiracy to bribe former
HUD Deputy Secretary DuBois Gilliam. Counts II thru VII are
substantive bribery and gratuity charges, alleging misconduct
with respect to the three (3) projects referenced in the Introduc-
tion: Wedgewood Plaza Apartments (Count II and III); Wedge-
wood Plaza Mall (Counts IV and V); and, Palm Glade
Apartments (Counts VI and VII).
Briscoe seeks an order directing the United States to file a
Bill of Particulars relative to each of the allegations contained
in the Indictment. Concerning the conspiracy count, Briscoe
requests disclosure of the following information; the identity of
Le Te, Le
A-54
appropriate function of a Bill of Particulars and is not a proper
purpose in seeking the Bill.” Jd. at 1441.
The Eleventh Circuit has offered guidance concerning the
sufficiency of detail in a charging document. In United States v.
Warren, 772 F.2d 827 (11th Cir.), cert. denied 475 U.S. 1022
(1985), the court affirmed the trial judge’s denial of a request
for a Bill of Particulars where the Indictment was found to
contain sufficient detail from which the defendant could prepare
his defense. The court observed that
[t]he Indictment set out in detail the terms of the
conspiracy, ten overt acts, and the substantive charges
against the appellants, providing them adequate no-
tice of the charges and a full and fair opportunity to
prepare their defenses. In addition, the Government
provided appellants with a list of unindicted co-con-
spirators.
Id at 837.
Review of the instant Indictment reveals sufficient detail
to permit the defendant adequately to prepare his case, to avoid
surprise at trial and to protect against double jeopardy. The
Indictment commences with an “Introduction to All Counts”,
setting forth the purpose of the UDAG program, the nature of
defendant Briscoe’s and defendant Steier’s businesses, the iden-
tity of pertinent companies controlled by Steier, the official
capacity within which DuBois Gilliam acted, and the identity of
the particular projects that are the subject of the alleged miscon-
duct. This introduction is followed by a conspiracy count,
further subdivided into sections detailing the alleged offenses.
In seven paragraphs under the heading “Manner and Means by
Which the all conspirators now known to the Government; the
locatons where the conspiracy was carried out; the dates and
places where each conspirator joined the scheme; the identity of
any businesses which were part of the conspiracy; the identity
of gifts or other things of value allegedly given by Leonard
/ A-55
Briscoe to DuBois Gilliam; the identity of each official act
influenced as a resuit of such gift; the identify of all favorable
terms and conditions of any UDAG grant agreement obtained
as a result of the conspiracy; and, the details of any additional
overt act which the Government intends to present at trial and
which is not set forth in the Indictment. With regard to the
substantive charges of misconduct (Counts II thru VID, the
motion seeks the precise dates of the alleged misconduct, as well
as the particular manner in which the defendant is claimed to
have interfered with an HUD function. Finally, the defendant
seeks a definition of the terms “deceit, craft, dishonesty, misrep-
resentation, and overreaching.”
The purpose of a Bill of Particulars is to inform the defen-
dant of the charges against him with sufficient precision to allow
him to prepare his defense, to minimize surprise at trial, and to
enable him to plead double jeopardy in the event of a later
prosecution for the same offense.! United States v. Anderson,
799 F.2d 1438, (11th Cir.) reh. denied 805 F.2d 1043, cert.
denied 480 U.S. 931 (1986). “General discovery, however, is
not an Conspiracy was Carried Out,” the Government elaborates
upon its theory of prosecution, setting forth the purpose of the
conspiracy and the manner in which the bribery monies were
allegedly paid. In a subsection entitled “Overt Acts”, the Gov-
ernment lists eight (8) acts committed in furtherance of the
conspiracy and, with regard to each, provides the pertinent dates,
places and participants. Though the specifics provided are not
of the detail sought by the defense, the Government is not
required to provide all facts regarding the existence and forma-
tion of a conspiracy, or the details of all overt acts that might be
proved at trial, or the names of unindicted co-conspirators. See
United States v. Rosenthal, 793 F.2d 1214, 1227 (11th Cir.),
modified in part 801 F.2d 378, cert. denied 480 U.S. 919 (1986);
' The Federal Rules of Criminal Procedure speak briefly as to the
propriety of Particulars, stating only that “{t]he court may direct the filing of
a Bill of Particulars.” Fed.R.Crim.P. 7(f). (emphasis added.)
A-56
United States v. Colson, 662 F.2d 1389, 1391 (11th Cir. 1981)
United States v. Kilrain, 566 F.2d 979, 985 (Sth Cir.) cert. denied
439 US. 819 (1978).
“Nor is the defendant entitled to a Bill of Particulars with
respect to information which is already available through other
sources such as . . . discovery and inspection.” United States v.
Rosenthal 793 F.2d at 1227. Pursuant to the Standing Discovery
Order previously issued in this case, the Government provided
approximately 1,500 pages of materials to the defendant that
included documentation of payments, loan consulting agree-
ments, cashiers checks, travel records, documentation of project
grants and information concerning corporate entities utilized to
funnel bribery monies.
For the foregoing reasons the Court concludes that defen-
dant Briscoe is in possession of sufficiently detailed information
to prepare for trial and to plead double jeopardy in the event of
a later prosecution for the same offense. Accordingly the Mo-
tion for Bill of Particulars is hereby DENIED as to each and
every request.
DONE AND ORDERED at West Palm Beach, Florida this
11th day of September, 1991.
/s/__Barry S. Seltzer
BARRY S. SELTZER
United States Magistrate
Copies to:
Honorable James C. Paine
Daniel S. Gilber, AUSA
United States Attorney’s Office
1 A-57
2101 L. Street, N.W.
Washington, D.C. 20037
David A. Acton
Northbridge Center, Suite 801
515 North Flagler Drive
West Palm Beach, Florida 33401
Ted Borras
Barnett Center, Suite 508
625 North Flagier Drive
West Palm Beach, Florida 3340]
A-58
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
[Filed July 16, 1990]
Division for the Purpose of
Appointing Independent Counsels
Ethics in Government Act of 1978, as Amended
In re: Samuel R. Pierce, Jr. Division No. 89-5
Order Expanding
Jurisdiction
Before: MacKinnon, Presiding, Butzner and Pell,
Senior Circuit Judges
Upon consideration of: (1) the Order of the Court of
March 1, 1990 appointing the Honorable Arlin M. Adams as
Independent Counsel in the above entitled cause to investigate
the subject matters designated therein; (2) the Order of March
8, 1990 amending the Order of March 1, 1990 (the “Orders”);
(3) the Attorney General’s referral to Independent Counsel
Adams of other matters related to the subject matter of the
investigation authorized by the March 1, 1990 Order (the
“referral’”’), and (4) Independent Counsel Adams’ Notice of
Acceptance of Referral of Related Matters and Application for
Order of Referral of said related matters; the Orders above
referred to are further amended to read as follows:
Jurisdictional Order
Upon consideration of the application of the Attomey
General pursuant to 28 U.S.C. § 592(c) for the appointment of
an independent counsel, (a) with limited jurisdiction to investi-
gate whether Samuel R. Pierce, Jr., former Secretary of the
Department of Housing and Urban Development (the “Depart-
A-59
ment”), a position listed in section 5312 of title 5, United States
Code, and other officials of the Department, and other individu-
als and entities, may have committed, from 1984 through 1988
inclusive, the crime of conspiracy to defraud the United States
or any other federal crimes relating to: (1) the administration of
the selection process of the Department’s Moderate Rehabilita-
tion Program; and upon consideration of the Attorney General’s
referral to Independent Counsel, as authorized by 28 U.S.C.
§ 594(e), of the following additional subject matters related to
the Independent Counsel’ s prosecutorial jurisdiction, to wit: (2)
the administration of the Department’s Urban Development
Action Grant Program and the programs within the Secretary’s
Discretionary Fund (Technical Assistance and Special Projects)
(the “Programs”), (3) the additional matters related to the Inde-
pendent Counsel’s prosecutorial jurisdiction referred to Inde-
pendent Counsel by the Attorney General, and (4) Independent
Counsel Adams’ Notice of Acceptance of Related Matters and
Application for Order of Referral of said related matters; and (b)
with authority to exercise all the power, authority and obliga-
tions set forth in 28 U.S.C. § 594: it is
ORDERED, by the Court, in accordance with the author-
ity vested in it by 28 U.S.C. §§ 593(b) and 594, that Arlin M.
Adams, Esquire, of the Pennsylvania Bar, with offices at Suite
3600, 1600 Market Street, Philadelphia, Pennsylvania 19103,
be and he is hereby appointed Independent Counsel with
amended jurisdiction to investigate the following subject mat-
ters: the administration of: (1) the Department’s Moderate
Rehabilitation Program, (2) the Department’s Urban Develop-
ment Action Grant Program, and (3) the programs within the
Secretary’s Discretionary Fund (Technical Assistance and
Special projects) (herein, “the programs”), and whether Sa-
muel R. Pierce, Jr., and other officials of the Department and
other persons or entities, from 1984 through 1988 inclusive,
may have committed the crime of conspiracy to defraud the
United States, or any other federal crimes, including aiding and
A-60
abetting, (other than those classified as Class B or C misdemean-
ors or infractions) relating to the above subject matters; and in
the event Independent Counsel determines that any Federal
crimes have been committed within the investigative and prose-
cutorial jurisdiction defined by this Order, to prosecute all
offenders for said crimes; and it is
ORDERED, that Independent Counsel Adams shall have
prosecutorial jurisdiction with full power and independent
authority, as authorized by 28 U.S.C. §§593(b)(3) and 594 (copy
attached) to exercise all investigative and prosecutorial func-
tions and powers of the Department of Justice, the Attorney
General, and any other officer or employee of the Department
of Justice (except the Attorney General’s authority under 18
U.S.C. § 2516) and to fully investigate and prosecute all gov-
ernment officials, and other persons and entities for any federal
crimes, including conspiracy and aiding and abetting (other than
those classified as Class B or C misdemeanors or infractions),
that investigation determines are related to or arise out of the
programs or subject matters described above; and it is
ORDERED, that Independent Counsel Adams shall have
prosecutorial jurisdiction to investigate and prosecute Federal
crimes (other than those classified as Class B or C misdemeanors
or infractions) that may be related to or arise out of the investi-
gation or prosecution of the above described matters, including
perjury, obstruction of justice, destruction of evidence, and
intimidation of witnesses.
Per Curiam
For the Court:
/s/_ Constance L. Dupré
Constance L. Dupré
Clerk
FEET RRR IIS OMY bre tee ts ERI pany satpro fey
Pe ph
. A-61
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
September Term, 1994
No. 93-3054
USDC CR 92-0086-01
[Filed October 19, 1994]
United States of America,
Appellee,
Ve
Leonard E. Briscoe, =...
Appellant.
BEFORE: Edwards, Chief Judge;
Wald and Randolph, Circuit Judges
ORDER
Upon consideration of appellant’s petition for rehearing,
filed August 1, 1994, it is
ORDERED, by the Court, that the petition is denied.
Per Curiam
FOR THE COURT:
RON GARVIN, CLERK
BY: /s/__ Robert A. Bonner
Robert A. Bonner
Deputy Clerk
A-62
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
September Term, 1992
No. 93-3053
DC CR 91-0399-02
92-0086-01
92-0086-02
United States of America,
Appellee,
V.
Lance Henry Wilson,
Appellant.
and Consolidated Cases No. 93-3054 and 93-3055
APPEALS FROM
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BEFORE: Wald, Edwards and Randolph, Circuit Judges
JUDGMENT
These causes came on to be heard on the record on appeal
from the United States District Court for the District of Colum-
bia and were argued by counsel. On consideration thereof, it is
ORDERED and ADJUDGED, by the Court, that the
judgment of the District Court appealed from in No. 93-3053 is
hereby reversed and the judgments in the remaining cases are
affirmed, in accordance with the Opinion for the Court filed
herein this date.
a Tet a Te
A-63
Per Curiam
FOR THE COURT:
RON GARVIN, CLERK
BY: /s/__ Robert A. Bonner
Robert A. Bonner
Deputy Clerk
Date: June 17, 1994
Opinion for the Court filed by Circuit Judge Wald.
A-64
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Criminal Case No: 92-86
[Filed May 4, 1993]
UNITED STATES OF AMERICA
vs.
LEONARD E. BRISCOE, SR..,
(Name of Defendant)
Barry Levine and Elaine Metlin, Esq.,
Attorney for Defendani
JUDGMENT IN A CRIMINAL CASE
THE DEFENDANT:
O) pleaded guilty to count(s)
{) was found guilty on count(s) 3 and5_aftera plea of
not guilty.
Accordingly, the defendant is adjudged guilty of such
count(s), which involve the following offenses:
Date Offense Count
Title & Section Nature of Offense Concluded § Number(s)
18 USC 11/85 through |
201(c)(1)(A) Illegal Gratuit
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