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334 U.S. App. D.C. 306; 167 F.3d 543, *;
1999 U.S. App. LEXIS 930,
false writing or document containing a false, fictitious,
COUNSEL: Sheldon Krantz argued the cause for appel-
or fraudulent statement or representation. The jury may
lant. With him on the briefs were Elizabeth R. Dewey
find that the defendant performed more than one of these
and Barbara Rowland.
acts through a single course of action.
Charles M. Kagay, Chief Appellate Counsel, Office
Criminal Law & Procedure: Criminal Offenses:
of Independent Counsel, argued the cause for ap-
Miscellaneous Offenses: Abuse of Public Office
pellee. With him on the brief were Donald C. Smaltz,
Every element of a crime of which a defendant is charged
Independent Counsel, William F. Fahey, Counselor,
should ordinarily be submitted to a jury. It is also true
Barry Coburn, Assistant Independent Counsel, and Trent
that some circuits have held that the government must
B. Harkrader, Associate Independent Counsel.
generally prove that a defendant has a legal duty to dis-
close before it can convict for concealment under 28
JUDGES: Before: WILLIAMS, GINSBURG and
U.S.C.S. § 1001. But it is uncertain whether this judi-
ROGERS, Circuit Judges. Opinion for the Court filed
cially created requirement is an element of the crime to
by Circuit Judge WILLIAMS.
be presented to the jury or a purely legal determination
to be decided by the court. At least one case has held
OPINIONBY: WILLIAMS
that materiality itself, in certain criminal contexts such
as tax crimes, is a purely legal question that is not to be
OPINION: [*544] WILLIAMS, Circuit Judge: Ronald
submitted to the jury.
Blackley, onetime Chief of Staff to Secretary of
Agriculture Michael Espy, was convicted of three counts
Criminal Law & Procedure: Jury Instructions
of making false statements relating to over $ 22,000
Criminal Law & Procedure: Appeals: Standards of
that he received from individuals regulated by the
Review: General Rules
Department of Agriculture. Blackley was investigated
Under circuit law, the absence of a jury instruction on
and prosecuted by the Office of Independent Counsel ap-
an element of the crime is not reversible error where it
pointed to investigate allegations of[**2] gratuities re-
is inconceivable that the jury could have found the de-
ceived by Secretary Espy. On appeal, Blackley's prin-
fendant guilty of the crime without making a finding as
cipal claim is that the crimes charged lie outside the
to the omitted element. Instructional error on missing
Independent Counsel's jurisdiction. Rejecting that and
element is harmless if no rational jury could have found
Blackley's other contentions, we affirm.
the defendant guilty of violating the statute without also
making the proper finding as to the missing element.
***
Criminal Law & Procedure: Sentencing: Sentencing
On August 8, 1994 the Attorney General applied un-
Guidelines
der 28 U.S.C. § 592(c)(1) to the special division of
The fraud guidelines make no explicit provision for an
the United States Court of Appeals for the District of
adjustment for offenses committed by public officials.
Columbia for the purpose of appointing independent
counsels, see 28 U.S.C. § 49 (the "Special Division"),
Criminal Law & Procedure: Sentencing: Sentencing
seeking appointment of an independent counsel "to in-
Guidelines
vestigate whether any violations of federal crimes
The fraud guidelines explicitly contemplate upward de-
were committed by Secretary Espy, and to determine
partures in circumstances that fall outside the main
whether prosecution [*545] is warranted." The Special
core. U.S. Sentencing Guidelines Manual § 2F1.1,
Division's September 9, 1994 order (the "original
13. In their more general treatment of departures,
order") appointed Donald C. Smaltz as Independent
the guidelines note the impossibility of covering all
Counsel, with the authority and jurisdiction to:
bases. Circumstances that may warrant departure from
the guidelines pursuant to the provision cannot, by their
Investigate to the maximum extent authorized by the
very nature, be comprehensively listed and analyzed in
Independent Counsel Reauthorization Act of 1994
advance. U.S. Sentencing Guidelines Manual § 5K2.0.
whether [Secretary Espy] has committed a violation of
any federal criminal law relating in any way to the
Governments & Legislation: Legislation: Construction
acceptance of gifts by him from organizations or individ-
& Interpretation
uals with business pending[* before the Department
The force of the expressio unius inference depends en-
of Agriculture.
tirely on context.
September 9, 1994 Order of Special Division at 1. The
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"ocrText": "Page 5\n334 U.S. App. D.C. 306; 167 F.3d 543, *;\n1999 U.S. App. LEXIS 930,\nfalse writing or document containing a false, fictitious,\nCOUNSEL: Sheldon Krantz argued the cause for appel-\nor fraudulent statement or representation. The jury may\nlant. With him on the briefs were Elizabeth R. Dewey\nfind that the defendant performed more than one of these\nand Barbara Rowland.\nacts through a single course of action.\nCharles M. Kagay, Chief Appellate Counsel, Office\nCriminal Law & Procedure: Criminal Offenses:\nof Independent Counsel, argued the cause for ap-\nMiscellaneous Offenses: Abuse of Public Office\npellee. With him on the brief were Donald C. Smaltz,\nEvery element of a crime of which a defendant is charged\nIndependent Counsel, William F. Fahey, Counselor,\nshould ordinarily be submitted to a jury. It is also true\nBarry Coburn, Assistant Independent Counsel, and Trent\nthat some circuits have held that the government must\nB. Harkrader, Associate Independent Counsel.\ngenerally prove that a defendant has a legal duty to dis-\nclose before it can convict for concealment under 28\nJUDGES: Before: WILLIAMS, GINSBURG and\nU.S.C.S. § 1001. But it is uncertain whether this judi-\nROGERS, Circuit Judges. Opinion for the Court filed\ncially created requirement is an element of the crime to\nby Circuit Judge WILLIAMS.\nbe presented to the jury or a purely legal determination\nto be decided by the court. At least one case has held\nOPINIONBY: WILLIAMS\nthat materiality itself, in certain criminal contexts such\nas tax crimes, is a purely legal question that is not to be\nOPINION: [*544] WILLIAMS, Circuit Judge: Ronald\nsubmitted to the jury.\nBlackley, onetime Chief of Staff to Secretary of\nAgriculture Michael Espy, was convicted of three counts\nCriminal Law & Procedure: Jury Instructions\nof making false statements relating to over $ 22,000\nCriminal Law & Procedure: Appeals: Standards of\nthat he received from individuals regulated by the\nReview: General Rules\nDepartment of Agriculture. Blackley was investigated\nUnder circuit law, the absence of a jury instruction on\nand prosecuted by the Office of Independent Counsel ap-\nan element of the crime is not reversible error where it\npointed to investigate allegations of[**2] gratuities re-\nis inconceivable that the jury could have found the de-\nceived by Secretary Espy. On appeal, Blackley's prin-\nfendant guilty of the crime without making a finding as\ncipal claim is that the crimes charged lie outside the\nto the omitted element. Instructional error on missing\nIndependent Counsel's jurisdiction. Rejecting that and\nelement is harmless if no rational jury could have found\nBlackley's other contentions, we affirm.\nthe defendant guilty of violating the statute without also\nmaking the proper finding as to the missing element.\n***\nCriminal Law & Procedure: Sentencing: Sentencing\nOn August 8, 1994 the Attorney General applied un-\nGuidelines\nder 28 U.S.C. § 592(c)(1) to the special division of\nThe fraud guidelines make no explicit provision for an\nthe United States Court of Appeals for the District of\nadjustment for offenses committed by public officials.\nColumbia for the purpose of appointing independent\ncounsels, see 28 U.S.C. § 49 (the \"Special Division\"),\nCriminal Law & Procedure: Sentencing: Sentencing\nseeking appointment of an independent counsel \"to in-\nGuidelines\nvestigate whether any violations of federal crimes\nThe fraud guidelines explicitly contemplate upward de-\nwere committed by Secretary Espy, and to determine\npartures in circumstances that fall outside the main\nwhether prosecution [*545] is warranted.\" The Special\ncore. U.S. Sentencing Guidelines Manual § 2F1.1,\nDivision's September 9, 1994 order (the \"original\n13. In their more general treatment of departures,\norder\") appointed Donald C. Smaltz as Independent\nthe guidelines note the impossibility of covering all\nCounsel, with the authority and jurisdiction to:\nbases. Circumstances that may warrant departure from\nthe guidelines pursuant to the provision cannot, by their\nInvestigate to the maximum extent authorized by the\nvery nature, be comprehensively listed and analyzed in\nIndependent Counsel Reauthorization Act of 1994\nadvance. U.S. Sentencing Guidelines Manual § 5K2.0.\nwhether [Secretary Espy] has committed a violation of\nany federal criminal law relating in any way to the\nGovernments & Legislation: Legislation: Construction\nacceptance of gifts by him from organizations or individ-\n& Interpretation\nuals with business pending[* before the Department\nThe force of the expressio unius inference depends en-\nof Agriculture.\ntirely on context.\nSeptember 9, 1994 Order of Special Division at 1. The"
}