# Petition for Writ of Certiorari — Briscoe v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1364%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1995 - **Citation:** 514 U.S. 1051 ## Text G) FrueD 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1364%3A1. Public record. Not legal advice.