UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


UNITED STATES

v.

BLACKLEY, RONALD H.


98-3036a

D.C. Cir. 1999


*	*	*


Williams, Circuit Judge: Ronald Blackley, onetime Chief  of Staff to
Secretary of Agriculture Michael Espy, was con- victed of three counts
of making false statements relating to  over $22,000 that he received
from individuals regulated by  the Department of Agriculture. Blackley
was investigated  and prosecuted by the Office of Independent Counsel
appoint- ed to investigate allegations of gratuities received by
Secre- tary Espy. On appeal, Blackley's principal claim is that the 
crimes charged lie outside the Independent Counsel's juris- diction.
Rejecting that and Blackley's other contentions, we  affirm.


* * *


On August 8, 1994 the Attorney General applied under 28  U.S.C. s
592(c)(1) to the special division of the United States  Court of
Appeals for the District of Columbia for the purpose  of appointing
independent counsels, see 28 U.S.C. s 49 (the  "Special Division"),
seeking appointment of an independent  counsel "to investigate whether
any violations of federal  crimes were committed by Secretary Espy,
and to determine  whether prosecution is warranted." The Special
Division's  September 9, 1994 order (the "original order") appointed 
Donald C. Smaltz as Independent Counsel, with the authority  and


[I]nvestigate to the maximum extent authorized by the  Independent
Counsel Reauthorization Act of 1994 wheth- er [Secretary Espy] has
committed a violation of any  federal criminal law ... relating in any
way to the  acceptance of gifts by him from organizations or individu-
als with business pending before the Department of  Agriculture.


September 9, 1994 Order of Special Division at 1. The  original order
also gave the Independent Counsel jurisdiction  over crimes "connected
with" this core jurisdiction. We save  for later the precise wording
of these additional grants.


The Independent Counsel later applied to the Special Divi- sion asking
for a further "referral" under 28 U.S.C. s 594(e).1  On April 1, 1996,
over the objection of the Attorney General,  the Special Division
approved the application and issued an  order stating that the
Independent Counsel had jurisdiction  to:


[I]nvestigate and prosecute any violation of any federal  law ...
related to any application, appeal, or request for  subsidy made to or
considered by the United States  Department of Agriculture, for which
Secretary of Agri- culture Alphonso Michael (Mike) Espy and/or his
Chief  of Staff Ronald Blackley intervened in the application, 
approval, or review process.


April 1, 1996 Order of Special Division. In doing so, the  Special
Division said that it was "interpreting, but not ex- panding, the
independent counsel's original prosecutorial jur- isdiction." In re
Espy, 80 F.3d 501, 507 (D.C. Cir. Spec.  1996). It found that "the new
matter is demonstrably related  to the factual circumstances
underlying the Attorney Gener- al's original investigation and request
for appointment of an  independent counsel." Id. at 508.


On April 22, 1997 the Independent Counsel secured an  indictment of
Blackley on three counts of making false state- ments in violation of
18 U.S.C. s 1001. The indictment  alleged that Blackley, while serving
as Chief of Staff at the  U.S. Department of Agriculture, received
more than $22,000  from individuals regulated by the Department, and
then lied  about it on three separate occasions: once on his Executive




__________

n 1 28 U.S.C. s 594(e) states that "[a]n independent counsel may  ask
the Attorney General or the [Special Division] to refer to the 
independent counsel matters related to the independent counsel's 
prosecutorial jurisdiction, and the Attorney General or the [Special 
Division], may refer such matters."


Branch Public Financial Disclosure Form, SF 278, and then  twice in
sworn statements to the inspectors general of the  Department and the
United States Agency for International  Development ("USAID"). In the
sworn statement to the  Department of Agriculture inspector general
Blackley said,


At the time I became chief of staff for Secretary Espy  ..., I severed
myself from all of my prior businesses and  financial interests. I no
longer had any active connection  with [various named companies] or
any other company or  business interest in Mississippi or elsewhere. I
received  absolutely no money or remuneration of any kind from  any of
these companies for work performed in 1993 after  I became chief of
staff.... The only income I have  earned during the period during the
period from January  21, 1993 to the present date, with the exception
of the  sale of my former residence in Greenville, is my salary  from
USDA.


And in a sworn statement before the USAID, he said,  "After I ended my
consulting business and entered U.S.  Government service, I did not
receive any remuneration of  any kind from [a named client] or anyone
else."


A jury found Blackley guilty on all three counts, and the  district
court sentenced him to 27 months imprisonment and  three years of
supervised release.


* * *


A.Jurisdiction of the Independent Counsel2


Defendant's first jurisdictional claim rests solely on the fact  that
the text of the indictment fails to lay out the trail 




__________

n 2 Blackley in part appears to cloak his challenge to the jurisdic-
tion granted by the original order in an attack on the Special 
Division's April 1, 1996 referral, as he did before the trial court
(see  "Motion to Dismiss Indictment" at 10-11). But as the district
court  appears to have read the challenge as going at least in part to
the  scope of the original order, see United States v. Blackley, 986


connecting the original grant of jurisdiction to the charged 
violations. As Rule 7(c)(1) of the Federal Rules of Criminal 
Procedure specifies that an indictment must contain "a plain,  concise
and definite written statement of the essential facts  constituting
the offense charged," we can imagine an argu- ment that language
setting out the connective trail would be  offensive surplusage, which
the court might strike under Rule  7(d). But the reverse--that such
language is required-- seems without foundation. Defendant cites no
case, rule or  statute supporting the claim, and points to no
inconvenience  that the omission presents for him. In a case where the
 connection between the relevant referral or referrals and the  facts
set forth in the indictment or developed at trial was  unclear,
presumably the defendant could secure dismissal of  the indictment if
the independent counsel failed, on motion to  dismiss for want of
jurisdiction, to make a record of the  necessary connective links. Cf.
Fed. R. Crim. P. 16(a)(2)  (limiting required disclosure of
prosecutor's investigative ma- terials in ordinary case). But that
possibility is no basis for  cluttering up the indictment.


More substantively, Blackley argues that the indictment is  not within
the jurisdiction granted in the Special Division's  original order.
The Independent Counsel evidently regards  that as the proper
jurisdictional question; he makes no claim  that the April 1996
referral expanded his jurisdiction. This  view, seemingly shared by
both parties, tracks the position of  the Special Division itself,
which, as we noted, said in making  the April 1996 referral that it
was "interpreting, but not  expanding, the independent counsel's
original prosecutorial  jurisdiction, ... mak[ing] explicit the
independent counsel's  jurisdiction over a matter that was implicitly
included in the  original grant." In re Espy, 80 F.3d at 507. Nor does
the  Independent Counsel make the argument, which we consider  in
United States v. Hubbell, No. 98-3080 (D.C. Cir. Jan. 26,  1999)
released today, that the Special Division's interpretation  of the
original order, set forth in the later referral, is entitled 




__________

n F. Supp. 607, 610 (D.D.C. 1997), we regard the relation between the 
indictment and the original order as properly before us.


to deference. Accordingly, we review de novo the relation- ship
between the indictment and the jurisdictional grant of  the original
order.3


In analyzing the relation between the offenses charged  here and the
language of the original order (including both its  statement of the
core offenses and the various ancillary  clauses), Blackley frequently
invokes a phrase used by the  Supreme Court in Morrison v. Olson, 487
U.S. 654 (1988),  "demonstrably related." We are not at all sure that
the  adverb "demonstrably" adds much to the concept of related- ness,
other than perhaps to say that if the relation depends  on some facts,
then the facts may be litigated. Whatever its  force, however, the
phrase was not used by the Court in  relation to the present issue at
all. The Court used it solely  in connection with the anterior issue
of the relation between  the Attorney General's initial investigation
and presentation  to the Special Division, on the one hand, and that
Division's  original grant of authority to an independent counsel, on
the  other. In resisting a constitutional attack on the vesting of 
power in the Special Division, the Court observed:


In order for the Division's definition of the counsel's  jurisdiction
to be truly "incidental" to its power to ap- point, the jurisdiction
that the court decides upon must  be demonstrably related to the
factual circumstances  that gave rise to the Attorney General's
investigation and  request for the appointment of the independent
counsel  in the particular case.


Id. at 679. Here, of course, the defendant is not challenging  the
constitutionality of the Special Division's grant of jurisdic- tion,
but the fit of the present prosecution within that grant.  Cf. United
States v. Tucker, 78 F.3d 1313, 1321 (8th Cir. 1996)  (holding that
the "demonstrably related" language did not 




__________

n 3 As the Independent Counsel only marginally invokes the  April 1996
referral as support for his jurisdiction over the crimes  charged in
the indictment, and we in no way rely on it in upholding  the
indictment as within the Independent Counsel's jurisdiction, 
Blackley's contention that the district court wrongly failed to review
 that referral itself appears entirely moot.


govern the Independent Counsel's jurisdiction under a refer- ral).


As we mentioned above, a number of clauses of the original  order
explicitly authorize the Independent Counsel to go  beyond crimes
possibly committed by Secretary Espy in  accepting gifts from persons
with matters pending before the  Department. Besides power to look
into those, the order  gave the Independent Counsel jurisdiction to:


[1] ... investigate other allegations or evidence of viola- tion of any
federal criminal law ... by any organization  or individual developed
during the Independent Coun- sel's investigation referred to above and
connected with  or arising out of that investigation.


[2] ... investigate any violation of 28 U.S.C. s 1826, or  any
obstruction of the due administration of justice, or  any material
false testimony or statement in violation of  federal criminal law, in
connection with any investigation  of the matters described above.


[3] ... seek indictments and to prosecute any organiza- tions or
individuals involved in any of the matters de- scribed above, who are
reasonably believed to have com- mitted a violation of any federal
criminal law arising out  of such matters, including organizations or
individuals  who have engaged in an unlawful conspiracy or who have 
aided or abetted any federal offense.


[4] ... fully investigate and prosecute the subject matter  with
respect to which the Attorney General requested  the appointment of
independent counsel, as hereinbefore  set forth, and all matters and
individuals whose acts may  be related to that subject matter,
inclusive of authority to  investigate and prosecute federal crimes
... that may  arise out of the above described matter, including
perju- ry, obstruction of justice, obstruction of evidence, and 


September 9, 1994 Order of Special Division at 2, 3.


It is not claimed that any of the order's language is  inconsistent
with the Special Division's statutory authority. 


Nor do we think it could be claimed. Section 593(b)(3) states  that the
Division is to define the counsel's jurisdiction in a  way that "shall
assure that the independent counsel has  adequate authority to fully
investigate and prosecute the  subject matter with respect to which
the Attorney General  has requested the appointment of the independent
counsel,  and all matters related to that subject matter." 28 U.S.C. 
s 593(b)(3) (emphasis added). Further, the jurisdiction "shall  also
include the authority to investigate and prosecute Feder- al crimes
... that may arise out of the investigation or  prosecution of the
matter with respect to which the Attorney  General's request was made,
including perjury, obstruction of  justice, destruction of evidence,
and intimidation of wit- nesses." Id. (emphasis added). The second
clause appears  to make clear that the Independent Counsel's
jurisdiction is  to encompass criminal activity concealing, or
otherwise  thwarting the Independent Counsel's investigation or prose-
cution of, crimes that satisfy the first "related to" clause. In  the
Division's order here, ancillary clauses [1] and [4] appear  to track
the first of the provisions in s 593(b)(3), while that of  ancillary
clauses [2] and [4] appear to implement the second.


Blackley proposes an interpretation of the order's jurisdic- tional
scope that would allow little or no discernible weight to  any of the
ancillary language, except for that relating to  crimes arising out of
the investigation or prosecution itself,  such as perjury or
obstruction of justice. With that excep- tion, he evidently reads the
language as limiting the Indepen- dent Counsel to possible crimes
committed in Espy's own  acceptance of gifts.


This clearly cannot be. The word "relation" comprises  more than
identical twins. And just as a person is "related"  not only to his
parents and children, but to grandchildren and  grandparents, the fact
that a crime is in some sense a verbal  step or two away from the core
crime cannot alone render it  unrelated. As we have said, the "central
purpose of the  special prosecutor provisions of the [Ethics in
Government  Act] is to permit the effective investigation and
prosecution of  high level government and campaign officials." United
States  v. Wilson, 26 F.3d 142, 148 (D.C. Cir. 1994) (emphasis added).


Discussing the "related to" language of s 593(b)(3), we noted  that
"the scope of a special prosecutor's investigatory juris- diction can
be both wide in perimeter and fuzzy at the  borders." Id.


Thus, the jurisdiction to look into matters "related to" the  core
areas of initial inquiry must allow the Independent  Counsel enough
leeway to investigate and prosecute such  matters as are appropriate
for him to effectively carry out his  mandate. We think such
effectiveness can be secured only if  the Independent Counsel is at
least able to pursue crimes by  the original target's close associates
in the field of activity  under investigation, including crimes that
either are of the  same sort as the originally specified set of crimes
or are  ancillary to the commission or concealment of such crimes. 
Whether an independent counsel has any further scope we  need not
decide here; obviously his jurisdiction is limited, but  this case is
squarely within the limits.


The position description for Blackley as Chief of Staff to  Secretary
Espy characterized him as the Secretary's "alter  ego,"; and he played
that role in the very activity--running  the Department--in which
Espy's alleged offenses were com- mitted. His alleged non-disclosures
were of sums received  from parties doing business with the
Department, thus paral- leling the Espy allegations. Furthermore,
concealment of  such receipts, especially in the context of a
financial disclo- sure form intended to bring suspicious influences to
the  surface and in response to questions of inspectors general, 
tends not only to prevent discovery of underlying crimes such  as
receipts of bribes or gratuities, but also to reflect the 
perpetrator's consciousness of guilt in those receipts.


The proximity of the relation here is underscored by De- partment of
Justice policy (the subject of a separate challenge  by Blackley).
Justice allows its attorneys to use prosecutions  under s 1001 as a
vehicle for pursuing public corruption  crimes:


[U]nderlying misconduct is frequently the reason for the  defendant's
indictment [for false statements] with section  1001 merely being the
vehicle for prosecution because of 


proof problems with more obviously applicable statutes  ... False
information on financial disclosure forms  frequently masks such
underlying offenses as receipt of  bribes or gratuities, or conflicts
of interest. When prose- cution for those offenses is not practicable,
section 1001  is an alternative.


9A DOJ Manual at 9-1938.122-23 (Supp. 1988) (emphasis  added). This
confirms us in finding that the relation between  Blackley's s 1001
violations and the core charges set out in  the original order is
tight enough to meet the "related to"  criterion of s 593(b)(3) and
the order itself.


Included among Blackley's jurisdictional attacks is his  claim that the
Independent Counsel violated s 594(f)(1) of the  Ethics in Government
Act, which provides that an indepen- dent counsel "shall, except to
the extent that to do so would  be inconsistent with the purposes of
this chapter, comply with  the written or other established policies
of the Department of  Justice respecting enforcement of the criminal
laws." He  claims that here the Independent Counsel violated DOJ
policy  guidelines, which provide that DOJ attorneys should not 
prosecute an Ethics in Government Act case under s 1001  "unless the
nondisclosure conceals significant underlying  wrongdoing." 9A DOJ
Manual at 9-1938.123 (1988). Detect- ing a transgression of the
Manual, Blackley argues that it  somehow undermines the prosecutorial
jurisdiction of the  Independent Counsel.


We think Blackley has missed the real defect here--the  lack of any
cause of action or remedies for defendants like  him under the Manual
or s 594(f)(1). The Manual itself says  that it "is not intended to
confer any rights, privileges or  benefits on prospective or actual
witnesses or defendants. It  is also not intended to have the force of
law or of a United  States Department of Justice directive." 9A DOJ
Manual at  9-1938.3. As defendant implicitly acknowledges, violations
of  Manual policies by DOJ attorneys or other federal prosecu- tors
afford a defendant no enforceable rights. See, e.g.,  United States v.
Kember, 648 F.2d 1354, 1370 (D.C. Cir. 


1980); United States v. Craveiro, 907 F.2d 260, 263-64 (1st  Cir.
1990).


Blackley argues, however, that here the DOJ policy is  backed by a
statute. While that is true in a sense, it misses  the point. In the
interest of having the target of an Indepen- dent Counsel's
prosecution treated no worse than an ordinary  defendant, s 594(f)(1)
subjects the Independent Counsel to  the same guidelines. See S. Rep.
No. 97-496 (1982), quoted  at H. Rep. No. 103-224, 103rd Cong., 1st
Sess. 1993, 1993 WL  302057 at *20 (special prosecutor should act so
as to assure  that "treatment of officials is equal to that given to
ordinary  citizens under similar circumstances"). Thus if the Manual 
explicitly states that it confers no substantive rights on the 
defendant, the parallelism sought to be achieved by  s 594(f)(1)
suggests that the defendant here should also be  unable to escape
conviction by claiming a violation of the  policy.


Further, the legislative history suggests that Congress  intended that
the consequence of a failure to follow these  policies would be for
the Independent Counsel to explain his  decision, not for the guilty
defendant to be set free:


In determining whether it is possible to comply with  these policies,
the [Independent Counsel] should be guid- ed by his perception of
fundamental fairness and of what  is required to conduct the
investigation conscientious- ly.... If he does deviate from
established practices of  the Department, the [Independent Counsel]
should thor- oughly explain his reasons for doing so in his report to 
the court at the conclusion of his investigation.


S. Rep. No. 97-496 (1982), quoted at H. Rep. No. 103-224,  103d Cong.,
1st Sess. 1993, 1993 WL 302057, at *20. Regard- less of the
possibility of other remedies under s 594(f)(1), as  to which we
express no opinion, nothing in the language of  the provision or the
structure of the Ethics in Government  Act suggests that the defendant
should be able to escape a  sanction otherwise due.


B.The Sufficiency of the Indictment


Blackley says the indictment didn't adequately notify him  of the
nature of the charges against him. In particular, he  argues that
count one, which charged him with failure to  disclose on his SF 278
for the year 1993 some $22,025  received that year, simply enumerated
the 11 checks through  which the money was received (with their dates
and amounts),  plus all four categories on the form ("Assets and
Income,"  "Gifts, Reimbursement and Travel Expenses," "Liabilities," 
and "Agreements or Arrangements"). Thus it did not con- nect any of
the checks to a specific box on the form. Blackley  makes a similar
argument as to the other counts, saying that  the indictment left him
uncertain as to exactly which of his  various denials was contradicted
by his receipt of the $22,025.


Blackley cites United States v. Nance, 533 F.2d 699 (D.C.  Cir. 1976).
There the defective counts of the indictment  accused the defendant of
falsely making the "following repre- sentations," but (amazingly) the
representations did not fol- low; none was alleged. Id. at 700 n.3.
The present indict- ment plainly says that Blackley in his SF 278
falsely failed to  disclose specified items of income. Nance gets
Blackley  nowhere.


But is it a fatal defect for an indictment to charge a failure  to
disclose and to assert four categories in the conjunctive,  rather
than specifying which box each check belonged in?  Where the
indictment alleges only one offense, it is proper to  charge the
different means for committing that offense in the  conjunctive. See
Joyce v. United States, 454 F.2d 971, 976  (D.C. Cir. 1971); United
States v. UCO Oil Co., 546 F.2d 833,  838 (9th Cir. 1976); Fed. R.
Crim. P. 7(c)(1) (indictment may  allege that defendant committed
offense "by one or more  specified means"). In this case, the
categories on the form  simply enumerate the various ways the
defendant could vio- late the disclosure requirements of the SF 278
form, and  proof of any one of those allegations could sustain a
convic- tion. See UCO Oil Co., 546 F.2d at 838. And the proceeding  on
any count "will bar further prosecution on all matters  alleged


So the charging in the conjunctive here was proper and  satisfies the
two requirements for an indictment set out in  Russell v. United
States, 369 U.S. 749 (1962)--telling the  defendant what "he must be
prepared to meet" and showing  to what extent he might in any future
proceeding plead  former acquittal or conviction. Id. at 763-64.


Blackley also argues that none of the counts pleaded any  duty to
disclose the $22,025. But in counts two and three the  indictment
spells out what can only be regarded as affirma- tive misstatements;
and in count one the indictment obviously  supplied the duty to
disclose by spelling out the reporting  requirements of SF-278 and
explicitly stating that the defen- dant was required by law to respond
truthfully to these  requirements.


C.Adequacy of Jury Instructions


18 U.S.C. s 1001 criminalizes certain concealments from, or 
misrepresentations to, the government. The judge charged  the first
element in the following terms, the substance of  which defendant does
not dispute:


The first element that you must find beyond a reason- able doubt is
falsification or concealment. To find the  defendant guilty of
violating this statute, you must find  that for each count charged in
the indictment, the defen- dant either:


a. falsified, concealed, or covered up by a trick,  scheme, or device a
fact; or


b. made a false, fictitious or fraudulent statement or  representation;
or


c. made or used a false writing or document contain- ing a false,
fictitious, or fraudulent statement or repre- sentation. You may find
that the defendant performed more than  one of these acts through a
single course of action.


Blackley objects that this was error, because in its unanimi- ty
instruction the court failed to advise the jury that it had to  find
unanimously that each statement of the defendant violat- ed a specific
form of falsification, leaving it possible that 


jurors rested their verdict on different forms. The argument  simply
ignores the language of the charge. Immediately  after the passage
quoted, the judge said:


However, to render a guilty verdict, you must unani- mously agree on at
least one of these three acts.


Under any reasonable reading of this instruction, the jury  would
understand that it must agree unanimously on which of  the three the
defendant violated.


The defendant's second argument, overlapping with his  first, is that
the district court erred in refusing to give the  jury an instruction
that to find the defendant guilty of con- cealment under s 1001, it
must find that Blackley's failure to  report the various checks he
received violated a legal duty.  Blackley contends that the legal duty
to disclose is an element  of the concealment prong of s 1001 that the
government must  prove to the jury. It is true that every element of a
crime of  which a defendant is charged should ordinarily be submitted 
to a jury. United States v. Gaudin, 515 U.S. 506 (1995). It  is also
true that some circuits have held that the government  must generally
prove that a defendant has a legal duty to  disclose before it can
convict for concealment under s 1001.  See, e.g., United States v.
Irwin, 654 F.2d 671, 678-79 (10th  Cir. 1981). But it is uncertain,
since Gaudin, whether this  judicially created requirement is an
element of the crime to  be presented to the jury or a purely legal
determination to be  decided by the court. Cf. United States v.
Zalman, 870 F.2d  1047, 1055 (6th Cir. 1989) (pre-Gaudin case holding
duty to  disclose under s 1001 is a matter of law for the judge and
not  the jury). At least one post-Gaudin case has held that 
materiality itself, in certain criminal contexts such as tax  crimes,
is a purely legal question that is not to be submitted  to the jury.
See United States v. Klausner, 80 F.3d 55, 61  (2d Cir. 1996)
(distinguishing materiality in Gaudin as a  mixed law and fact


Assuming the duty to disclose is an element of concealment  to be
charged to the jury under s 1001, the district court's  refusal to use
Blackley's proposed charge would still not be  reversible. Under
circuit law, the absence of a jury instruc- tion on an element of the
crime is not reversible error where 


it is inconceivable that the jury could have found the defen- dant
guilty of the crime without making a finding as to the  omitted
element. See United States v. Winstead, 74 F.3d  1313, 1321 (D.C. Cir.
1996); see also United States v. Parme- lee, 42 F.3d 387, 393 (7th
Cir. 1994)(holding that instructional  error on missing element is
harmless if "no rational jury  could have found the defendant[ ]
guilty of violating [the  statute] without also making the proper
finding as to the  missing element"); Redding v. Benson, 739 F.2d
1360, 1363- 64 (8th Cir. 1984). Here, Blackley argued to the jury
various  forms of conceivable confusion in the SF 278 and in the 
statements to the inspectors general that might make his 
falsifications non-willful, arguments that, given the judge's 
instruction that the jury must acquit Blackley if they found  that he
had acted in good faith, the jury had to reject to find  him guilty.
The judge also instructed the jury on Blackley's  defense theory that
he did not believe he was obliged to  disclose the information he
allegedly concealed, instructions  that clearly placed before the jury
the question of whether  Blackley had a legal duty to disclose the 11
checks on his  SF-278. Thus, even if there was error in not submitting
the  duty-to-disclose instruction to the jury, it is unimaginable that
 the jury could have found Blackley guilty of concealment in  count


Although the misrepresentations in counts two and three  are the
plainest kind of free-standing, affirmative misstate- ments, the
district court's instructions nominally allowed the  jury to convict
under the concealment theory of s 1001,  though without mention of a
need to find a duty to disclose.  But given the explicit and
affirmative character of the misrep- resentation, and the absence of
any reliance by the prosecutor  on questions posed by the Inspectors
General (i.e., a claim  that it was the nature of any such question
that made  Blackley's statements into concealments), the only way
"con- cealment" could have come into the jury's deliberations on 
those counts would have been as a convoluted version of  affirmative
misrepresentation. For example, when someone  swears that "the only
money [he has] earned from January  21, 1993 to the present date [with
an irrelevant exception] is  [his] salary from the USDA," he is


other earnings. Thus, no rational jury could have concluded  that
Blackley was guilty under counts two or three without  simultaneously
finding that he made affirmatively false state- ments.


D.The Departure from the Sentencing Guidelines


Finally Blackley objects to his sentence of 27 months,  arguing that
the district court made an upward departure on  invalid grounds. The
court found that Blackley should be  sentenced under the fraud
guideline, s 2F1.1 of the United  States Sentencing Guidelines, which
carries a base level of  six. It also found that the specific offense
characteristic of  "more than minimal planning" applied, and increased
Black- ley's offense level by two, for a total of eight. It then made 
an eight-level upward departure, relying on a mix of factors  that it
believed were not considered by the guidelines in this  context. These
included the facts that (1) the defendant was  a high-level official
when he received monies from individuals  regulated by the Department;
(2) he was informed that he  was not allowed to receive such payments;
and (3) he twice  lied under oath about their receipt.


As Blackley concedes, the fraud guidelines make no explicit  provision
for an adjustment for offenses committed by public  officials. But he
insists that the explicit provision for such an  adjustment in
connection with crimes involving the receipt of  gratuity or the
deprivation of the right to honest services  implies a rejection of
any comparable adjustment for fraud.  U.S.S.G. ss 2C1.2, 2C1.7. We
think the inference quite  weak, however. First, the fraud guidelines
explicitly contem- plate upward departures in circumstances that fall
outside the  main core. See U.S.S.G. s 2F1.1, Application Notes 10,
13.  And in their more general treatment of departures the guide-
lines note the impossibility of covering all bases:


Circumstances that may warrant departure from the  guidelines pursuant
to this provision cannot, by their  very nature, be comprehensively
listed and analyzed in  advance.


U.S.S.G. s 5K2.0. Further, the Sentencing Commission's  focus on high
status in the government is understandable for 


offenses where its occurrence, though far from invariable, is  salient.
As high-level official status does not seem especially  salient in
fraud generally, the Commission's failing to treat it  explicitly in
that context implies little. See Shook v. District  of Columbia Fin.
Responsibility and Management Assis- tance Auth., 132 F.3d 775, 782
(D.C. Cir. 1998) (observing  that the force of the expressio unius
inference depends entire- ly on context). The case is thus radically
different from  United States v. Sun-Diamond Growers, 138 F.3d 961
(D.C.  Cir. 1998), in which we overturned an upward departure  based
on the high rank of the official who received a gratuity,  the
Secretary of Agriculture, on the ground that the Guide- lines
themselves, s 2C1.2, had covered precisely that. We  found no material
difference in rank or sensitivity between  the Secretary and various
officials explicitly enumerated in  the associated Application Note as
instances covered by the  explicit provision for departure. Id. at


Although at first blush the number of levels seems high,  the departure
made Blackley's sentence more closely approxi- mate what would follow
for kindred crimes committed by high  government officials under
provisions such as s 2C1.2 itself.  We find the departure well within
the broad discretion al- lowed the district court in such matters. See
Koon v. United  States, 518 U.S. 81, 98 (1996).


* * *


Defendant also claims a violation of Rule 404(b) of the  Federal Rules
of Evidence, but the claim is too weak to merit  discussion. And he
argues the sufficiency of the evidence.  On that issue he devotes his
brief almost entirely to evidence  that, if believed and given great
weight, might have enabled a  jury reasonably to acquit. Perhaps so.
But the possible  reasonableness of acquittal is not, of course, the
test--it is  whether a jury could reasonably convict, as here it


The defendant's conviction and sentence are confirmed.


So ordered.