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


UNITED STATES

v.

SCHAFFER, ARCHIBALD


98-3123c

D.C. Cir. 1999


*	*	*


Wald, Circuit Judge: The United States appeals a decision  by the
district court granting Archibald Schaffer's post-trial  motion for a
judgment of acquittal. After a jury found  Schaffer guilty of
violating the Meat Inspection Act, 21 U.S.C.  s 622, and the federal
gratuity statute, 18 U.S.C.  s 201(c)(1)(A), the court set aside the
verdict on the grounds  that the jury had been presented insufficient
evidence to  support a verdict of guilt on either count. See United
States  v. Williams, 29 F. Supp. 2d 1 (D.D.C. 1998). Subsequently, 
the court conditionally denied Schaffer's motion for a new  trial, a
decision from which Schaffer has filed a conditional  cross-appeal.
While we agree with the district court's deter- mination that the
evidence cannot support a conviction for  giving an unlawful gratuity,
we find sufficient evidence in the  record from which a reasonable
juror could have concluded  that Schaffer violated the Meat Inspection
Act. Therefore,  we affirm the district court's decision in part and
reverse in  part. We additionally reject the challenges raised in
Schaf- fer's conditional cross-appeal. Accordingly, we vacate the 
judgment of acquittal on the Meat Inspection Act count,  reinstate the
jury verdict on that count, and remand for  sentencing.


I. Background


The evidentiary disputes in these appeals must be evaluat- ed in their
surrounding context, a much-publicized backdrop  that contains more
than a hint of Washington theater. Be-


cause consideration of whether the jury verdict has sufficient 
evidentiary underpinnings is necessarily fact-intensive, we set  out
the relevant incidents in some detail. The criminal  charges brought
against Archibald Schaffer ("Schaffer" or the  "defendant") trace back
to 1994, when allegations of illegality  were first levied against
then-Secretary of Agriculture Al- phonso Michael Espy ("Secretary
Espy," "Espy," or the  "Secretary"). On application of the Attorney
General, a  special division of this circuit appointed Donald C.
Smaltz as  independent counsel and granted him the authority to
investi- gate whether Secretary Espy had violated federal criminal 
law by accepting gifts from individuals or corporations with  business
before, or regulated by, the United States Depart- ment of Agriculture
("USDA"). See In re Espy, 145 F.3d  1365 (D.C. Cir. Spec. Div. 1998).
Along with some other  regulated entities, Tyson Foods International
("Tyson  Foods"), the world's largest producer of poultry products, 
ultimately came under official scrutiny for its generosity  towards
Secretary Espy. Schaffer, then the Director of  Media, Public and
Governmental Affairs for Tyson Foods,  became a target in this
investigation for his alleged role in  transmitting things of value


The independent counsel's inquiry into the relationship  between Tyson
Foods and Secretary Espy focused upon a  chain of events that date
back to the transition period preced- ing William Jefferson Clinton's
inauguration as President. In  December of 1992, at a meeting
requested by then- Congressman Espy with Don Tyson and John Tyson,
respec- tively the Chairman of the Board and the President of the 
Beef and Pork Division at Tyson Foods, the Congressman  communicated
his desire and his qualifications to become the  Secretary of
Agriculture. He was subsequently nominated to  that position on
December 24, 1992, and sworn in on January  22, 1993, taking office in
the midst of a major public health  crisis. An outbreak of E coli
0157:H7 ("E coli") in the Pacific  Northwest, apparently stemming from
undercooked ham- burger meat, had caused the death of three children
and  generated illness in six hundred other individuals. Since the 


Department of Agriculture has ultimate statutory responsibil- ity for
the integrity of the nation's food supply, including  authority to
regulate both the poultry and the meat industry,  the E coli outbreak
was a matter of major importance within  the Department.


In response to the public concern, Secretary Espy and the  USDA
announced a series of initiatives and new regulations  designed to
enhance food safety. These policies were direct- ed at preventing
contamination and instructing the public as  to the proper handling
procedures for meat and poultry.  Along with other affected companies,
Schaffer participated in  lobbying the Secretary on behalf of Tyson
Foods, and in  disseminating the company's views with respect to
pending  and ongoing regulatory matters. During this same period of 
time, Schaffer, on behalf of Tyson Foods, participated in  providing
items of value to Secretary Espy. According to the  indictment,
Schaffer provided these gratuities in an attempt  to influence the
Secretary's actions with respect to matters of  interest to Tyson


The indictment alleges a pattern of gift-giving which pre- dates Espy's
official elevation to the position of Agriculture  Secretary and
continues through January of 1994. Through  Schaffer and others, Tyson
Foods provided the following  things of value to Secretary Espy and
those closely affiliated  with him: (1) In early January of 1993,
Tyson Foods hosted  Espy, his girlfriend Patricia Dempsey ("Dempsey"),
and two  of Espy's siblings at the $1,500 per person inaugural dinner 
at the Washington Sheraton Hotel, providing each a seat at  one of the
three Tyson Foods' tables purchased for the  evening. (2) In April of
1993, Don Tyson invited Secretary  Espy and Dempsey to a weekend-long
birthday party at the  Tyson Foods Management Training Complex ("Tyson
Com- plex") in Russellville, Arkansas (the "Russellville party"). 
When Espy accepted the invitation, Schaffer arranged for  their
transportation on a Tyson Foods corporate jet.1 Secre-




__________

n 1 While Dempsey flew from Washington to Russellville on the  Tyson
Foods jet, Secretary Espy came separately from Mississippi,  where he
had delivered two commencement addresses. Both Sec-


tary Espy attended the party with Dempsey, at which they  were
entertained by B.B. King and other musicians, and then  spent the
night at the Tyson Complex. (3) In September of  1993, John Tyson
advised Dempsey of, and recommended  that she apply for scholarship
money available from the  Tyson Foundation. Dempsey ultimately
received a $1,200  Foundation scholarship. (4) On January 16, 1994,
Secretary  Espy and Dempsey attended the Dallas Cowboys-Green Bay 
Packers playoff game as guests of Don Tyson. Tyson Foods  purchased
Dempsey's plane ticket, arranged car and limou- sine transportation
for Espy and Dempsey, and provided  seats in the Tyson Foods


During the gift-giving period, USDA officials were at vari- ous stages
in the process of developing and implementing  initiatives that would
seriously impact the business of Tyson  Foods. On February 3, 1993,
while accompanying the Secre- tary on a fact-finding mission to the
area affected by the E  coli outbreak, Dr. Russell Cross ("Dr.
Cross"), the Adminis- trator of USDA's Food Safety and Inspection
Service  ("FSIS"), outlined to an enthusiastic Secretary Espy a series
 of policies designed to enhance the safety of meat and poultry 
products on which FSIS had been working. The Secretary  announced his
intention to move forward along the lines of  Dr. Cross's policy
proposals at a meeting with industry  representatives the following
day. On February 5, 1993, Dr.  Cross made a similar presentation
before a Senate subcom- mittee, announcing a series of initiatives
intended to prevent  further outbreaks of food poisoning. Dr. Cross
outlined a  "Two-Track" approach to eliminating the presence of patho-
gens in meat and poultry products. Track 1, aimed at  maximizing the
performance of then-existing inspection meth- ods, involved the
implementation of six initiatives. Included 




__________

n retary Espy and Dempsey returned to Washington on the company  jet.


2 Although Schaffer did not participate in providing the last two 
things of value, the jury heard this evidence of Tyson Foods' total 
largess as part of the case against Jack Williams, a lobbyist for 
Tyson Foods and Schaffer's co-defendant.


among the six, FSIS proposed to enhance its detection and  control
measures, to develop quantitative risk analysis, to  encourage the use
of technologies that reduce pathogens, and  to increase consumer
awareness of safe food practices  through disseminating information on
how best to handle  meat and poultry products. Track 2, which at that
stage was  more amorphous than Track 1, called for a revolutionary 
redesign of safety programs.


Throughout 1993, the USDA continued work on two of the  Track 1
policies of great interest to Tyson Foods. First,  FSIS refined and
implemented a plan for pathogen reduction,  an effort which eventually
acquired the name "zero toler- ance."3 Although its attention
initially focused upon meat,  the improper handling of which had
generated the E coli  outbreak, FSIS was also in the process of
formulating a "zero  tolerance" pathogen control program for poultry.
Second,  FSIS worked on developing a consumer education program  that
would apply to all meat and poultry products. This  effort culminated
in an emergency regulation mandating the  use of so-called "safe
handling labels" on all not-ready-to-eat  products. Intended to
heighten consumer awareness, these  labels would contain care and
handling instructions designed  to eliminate the risk posed by
food-borne pathogens. An- nounced by Secretary Espy on August 11,
1993, and officially  promulgated five days later, this emergency
interim rule  required that USDA-approved labels be in place within
sixty  days. After an intense industry lobbying campaign coupled  with
White House intervention, Secretary Espy ultimately  agreed to delay
implementation of the emergency regulation,  pushing the date for full


In response to the independent counsel's investigation into  this
concatenation of events, a federal grand jury in the 




__________

n 3 The policy apparently acquired this nickname from a March 2,  1993
memorandum that the Deputy Administrator of FSIS sent to  cattle
slaughter establishments, requiring them to trim off any beef 
contaminated with fecal matter. With respect to such contamina- tion,
the directive concluded, "our policy will be zero." See 6/17/98 
Transcript ("Tr.") at 433-34.


District of Columbia indicted Schaffer on seven separate  counts of a
fifteen count indictment on January 15, 1998.  Together with
co-defendant Jack Williams, a lobbyist for  Tyson Foods, the
indictment charged Schaffer with conspir- acy to defraud the United
States of the honest services of  Secretary Espy, in violation of 18
U.S.C. s 371;  Schaffer was also charged with two counts  of wire
fraud, in violation of 18 U.S.C. ss 1343, 1346; two counts of
providing unlawful gratuities, in violation of 18  U.S.C. s
201(c)(1)(A); and one count of violating the Meat  Inspection Act, 21
U.S.C. s 622 (the "Act"). The indictment  additionally alleged that
Schaffer had committed mail fraud,  in violation of 18 U.S.C. ss 1341,
1346.4 The district court  dismissed four of the seven counts at the
close of the prosecution's  case-in-chief. Following completion of an
eight-day trial, the  three remaining counts against Schaffer--one
under the Meat  Inspection Act and two for providing unlawful
gratuities-- were submitted to the jury. Schaffer was found guilty on
two  of these counts, first for violating the Meat Inspection Act5 in




__________

n 4 Jack Williams was also charged with two counts of making false 
statements to federal agents in violation of 18 U.S.C. s 1001, and 
found guilty on each. Because Williams has withdrawn his appeal  from
the district court's decision denying his acquittal and new trial 
motions, our discussion focuses on Schaffer alone. We mention 
Williams solely to provide a complete and accurate portrait of the 
proceedings before the district court.


5 21 U.S.C. s 622 provides:


Any person, firm, or corporation, or any agent or employee  of any
person, firm, or corporation, who shall give, pay or offer,  directly
or indirectly, to any ... officer or employee of the  United States
authorized to perform any of the duties pre- scribed by this
subchapter or by the rules and regulations of  the Secretary any money
or other thing of value, with intent to  influence said ... officer or
employee of the United States in  the discharge of any duty provided
for in this subchapter, shall  be deemed guilty of a felony, and, upon
conviction thereof, shall  be punished by a fine not less than $5,000
nor more than  $10,000 and by imprisonment not less than one year nor
more  than three years.


conjunction with Secretary Espy's attendance at the Russell- ville
party, and second for violating the federal gratuity  statute6 through
providing tickets to the inaugural dinner.


Upon the defendant's subsequent Rule 29 motion for a  judgment of
acquittal, the district court set aside the jury's  verdict on both
counts. Acknowledging that the jury had  heard sufficient evidence to
support an inference that Schaf- fer had either given, or aided and
abetted the giving of things  of value to Secretary Espy, an essential
element under each  of the criminal statutes, the court nevertheless
concluded that  no rational trier of fact could have concluded that
Schaffer  had acted with the requisite intent to influence on either 
occasion. See United States v. Williams, 29 F. Supp. 2d at  6.7 Using
this court's decision in United States v. Sun-




__________

n 6 18 U.S.C. s 201(c)(1)(A) provides that anyone who


otherwise than is provided by law for the proper discharge of  official
duty ... directly or indirectly gives, offers, or promises  anything
of value to any public official, former public official, or  person
selected to be a public official, for or because of any  official act
performed or to be performed by such public official,  former public
official, or person selected to be a public official  ... shall be
fined under this title or imprisoned for not more  than two years, or


The statute further defines an "official act" to include "any decision 
or action on any question, matter, cause, suit, proceeding or contro-
versy, which may at any time be pending, or which may by law be 
brought before any public official, in such official's official
capaci- ty...." 18 U.S.C. s 201(a)(3).


7 The court conditionally disposed of Schaffer's new trial motion  in a
separate and subsequent order. See United States v.  Williams, No.
96-0314 (D. D.C. Oct. 6, 1998) (order denying new  trial motion).
Schaffer had argued that the court erred in preclud- ing him from
eliciting the fact of John and Don Tyson's immunity  agreements during
the cross-examination of John Tyson, and that  the prosecution had
made improper and prejudicial comments in  each of its opening,
closing, and rebuttal statements. The court  referenced an earlier
trial ruling and its Williams opinion as the  respective grounds for
rejecting each of these contentions. See  discussion infra pp.


Diamond Growers of California, 138 F.3d 961 (D.C. Cir.  1998)
("Sun-Diamond I"), aff'd, 119 S. Ct. 1402 (1999) ("Sun- Diamond"), as
its point of departure, the court read both the  federal gratuity
statute and the Meat Inspection Act as  requiring a link between the
gifts and an intent to influence  specific official acts of the
recipient. Since the trial and the  jury instructions had each
revolved around two official USDA  policies--i.e. zero tolerance and
safe handling labels--the  court examined the nexus between those
policies and the gifts  given to Espy to determine if it was strong
enough to sustain  a finding of intent to influence an official act
(under the  gratuity statute) or the discharge of any duty (under the 
Meat Inspection Act). Beginning with the gratuities count,  the court
asserted that "[t]here was no evidence that Mr.  Schaffer or anybody
in Tyson Foods knew or anticipated  anything about zero tolerance or
mandatory safe handling  labels at the time of the inaugural dinner,"
Williams, 29  F. Supp. 2d at 7, because E coli had first been
identified as  the cause of the deadly food poisoning outbreak only
earlier  that day. As for the Meat Inspection Act count, the court 
similarly concluded that neither of the two policies could  provide
the requisite nexus with the Russellville party; each  was
disqualified for temporal reasons. In the court's view,  zero
tolerance had ceased to be a live issue for meat more  than two months
before the weekend gala, and Tyson Foods  had yet to voice any
objection to the regulation mandating  safe handling labels. See id.
at 7-8. Accordingly, the court  granted Schaffer's Rule 29 motion and
entered a judgment of  acquittal on each count. Seeking reinstatement
of the jury  verdict, the independent counsel appeals from this


II. Discussion


In reviewing a post-verdict judgment of acquittal, this court 
undertakes an examination identical to that made by the trial  judge
in passing upon the defendant's motion. We examine  the evidence in
the light most favorable to the government,  and draw all reasonable
inferences in its favor. See United  States v. Singleton, 702 F.2d
1159, 1163 (D.C. Cir. 1983). 


While we recognize the district court's unique vantage point  in
evaluating the evidence, our review is nevertheless de novo.  See
United States v. Campbell, 702 F.2d 1182, 1183 (D.C. Cir.  1983) (in
banc). Finally, in order to safeguard the fact- finding function
assigned to the jury, we make a searching  review of the record to
determine whether the prosecution  presented evidence from which a
rational juror could have  found guilt beyond a reasonable doubt.
Unless we conclude  that no reasonable jury could have found guilt
beyond a  reasonable doubt on the evidence presented, we defer to its 


A. The Government's Appeal


1. The Gratuity Statute and the Inaugural Dinner


Our assessment of a guilty verdict's evidentiary underpin- nings
necessarily begins with the language of the statute  purportedly
contravened, and the essential elements of the  crime proscribed
therein. The federal gratuity statute makes  it unlawful for anyone,
directly or indirectly, to


give[ ], offer[ ], or promise[ ] anything of value to any  public
official, former public official, or person selected to  be a public
official, for or because of any official act  performed or to be
performed by such public official,  former public official, or person
selected to be a public  official....


18 U.S.C. s 201(c)(1)(A) (emphasis added). As the trial court 
correctly instructed, a violation of this statute requires the 
presence of three separate elements: that the defendant (i)  knowingly
gave a thing of value; (ii) to a public official or  person selected
to be a public official; (iii) for or because of  any official act
performed or to be performed. Since the trial  court based its
decision vacating the gratuities conviction  upon the third element,
properly conceding that the jury had  been presented with sufficient
evidence of the first two ele- ments, see Williams, 29 F. Supp. 2d at
6, we focus our  attention there as well.


Before analyzing the evidence, however, it is necessary to  discuss a
key question of statutory interpretation that lies at 


the heart of this case. As both parties readily admit, the  statutory
language at issue, that a thing of value be given "for  or because of
an official act," requires some nexus between  the thing given and an
"official act," which the statute defines  as "any decision or action
on any question, matter, cause, suit,  proceeding or controversy,
which may at any time be pend- ing, or which may by law be brought
before any public  official, in such official's official capacity...."
18 U.S.C.  s 201(a)(3). Though this case was tried before the Supreme 
Court handed down its recent Sun-Diamond decision, the  proceedings
were fully in accord with the Court's subsequent  holding that "the
giving of gifts by reason of the recipient's  mere tenure in office"
does not constitute a violation of the  gratuity statute. 119 S. Ct.
at 1408. In the words of the  district court's jury instructions,
"[i]t is not a crime to give  things of value to a public official
merely to get cozy or in the  hopes of inducing warm feelings toward
the giver or the  giver's employer." 6/25/98 Tr. at 1779. But while
all in- volved agree that the gratuity statute's scienter requirement 
demands more than a gift motivated solely by the recipient's  official
status, and that the statutory terms are "pregnant  with the
requirement that some particular official act be  identified and
proved," Sun-Diamond, 119 S. Ct. at 1407, the  magnitude of the
necessary link, and its proper translation  into a concrete rule of


Although the Supreme Court provided a preliminary expo- sition of the
federal gratuity statute in Sun-Diamond, the  Court faced a narrow
question and provided an equally  circumscribed answer. Arising out of
the same investigation  of Secretary Espy as the present case, the
independent  counsel had there charged an agricultural trade
organization  with providing unlawful gratuities to the Secretary. Al-
though the indictment discussed two separate policy matters  pending
before the Secretary during the gift-giving period, it  did not allege
any direct connection between the gifts and  those (or any other)
particular matters of concern to Sun- Diamond. The defendant appealed
his ultimate conviction on  the grounds that the district court had
improperly charged  the jury, as the court's instructions only


find that Espy's official position motivated the gift. The  Supreme
Court rejected this reading of the gratuity statute  as contrary to
the language of its text, see id., its place within  the larger
statutory and regulatory framework governing the  integrity of public
officials, and congressional intent. See id.  at 1408-09. In the
Court's view, the operative "for or be- cause of" language naturally
means "for or because of some  particular official act of whatever
identity," id. at 1407 (em- phasis added), and requires the government
to "prove a link  between a thing of value conferred upon a public
official and a  specific 'official act' for or because of which it was
given." Id.  at 1411. Since Sun-Diamond might have been convicted for 
gifts that lacked any nexus with a particular official act but  were
instead motivated by the Secretary's mere status, the  Court felt no
need to explore the degree of proof necessary to  show the link or how
the government might go about estab- lishing its presence.


Given the lack of specific guidance from the Court on the  amount and
kind of evidence necessary to establish a nexus  with an official
act,8 we look to the statute itself. The  pertinent language resides
within a larger provision, 18  U.S.C. s 201, that proscribes the
giving and the receipt of  both bribes9 and illegal gratuities. As we
recognized in 




__________

n 8 The specific interpretive methods used by the Sun-Diamond  Court to
arrive at its conclusion similarly do not help us in this 
second-level inquiry. Neither elementary linguistic analysis, the 
structure of the gratuity statute or its place within the larger 
statutory and administrative fabric regulating gifts to officeholders,
 nor the desire to avoid trapping the unwary point towards any 
specific interpretation of the degree of proof necessary to satisfy 
the Court's "for or because of a particular official act" language.


9 18 U.S.C. s 201(b)(1) provides in relevant part that whoever


directly or indirectly, corruptly gives, offers or promises any- thing
of value to any public official or person who has been  selected to be
a public official, or offers or promises any public  official ... to
give anything of value to any other person or  entity, with intent ...
to influence any official act ...


United States v. Campbell, 684 F.2d 141, 149 (D.C. Cir. 1982),  "[i]t
is no easy task to articulate the requisite intent neces- sary to
constitute accepting or giving an illegal gratuity."  Because,
however, the bribery section has received judicial  elaboration and
the gratuity provision has not, the former  provides an illuminating
backdrop against which to begin our  interpretive task. The two
prohibitions differ in two funda- mental respects. First, bribery
requires a quid pro quo, and  accordingly can be seen as having a
two-way nexus. That is,  bribery typically involves an intent to
affect the future actions  of a public official through giving
something of value, and  receipt of that thing of value then motivates
the official act.  See Sun-Diamond I, 138 F.3d at 966. A gratuity, by
con- trast, requires only a one-way nexus; "the gratuity guideline 
presumes a situation in which the offender gives the gift  without
attaching any strings...." United States v. Mari- ano, 983 F.2d 1150,
1159 (1st Cir. 1993). See also United  States v. Brewster, 506 F.2d
62, 72 (D.C. Cir. 1974) ("the  briber is the mover or producer of the
official act, but the  official act for which the gratuity is given
might have been  done without the gratuity, although the gratuity was


The two provisions additionally differ in their temporal  focus.
Bribery is entirely future-oriented, while gratuities  can be either
forward or backward looking. See Campbell,  684 F.2d at 148. In other
words, whereas bribery involves  the present giving, promise, or
demand of something in  return for some action in the future, an
unlawful gratuity can  take one of three forms. First, a gratuity can
take the form  of a reward for past action--i.e. for a performed




__________

n has committed bribery; while 18 U.S.C. s 201(b)(2) provides in 
relevant part that whoever


being a public official or person selected to be a public official, 
directly or indirectly, corruptly demands, seeks, receives, ac- cepts,
or agrees to receive or accept anything of value personal- ly or for
any other person or entity, in return for ... being  influenced in the
performance of any official act ...


has committed bribery.


See, e.g., id. at 148-50 (illegal gratuity where construction  company
moved the household goods of a judge who had  suspended hundreds of
its traffic tickets). Second, a gratuity  can be intended to entice a
public official who has already  staked out a position favorable to
the giver to maintain that  position. See Sun-Diamond, 119 S. Ct. at
1408 (postulating  scenario of gift to Department of Justice antitrust
appointee  who had publicly indicated support of the giving company's 
pending merger because of anticipated continued future sup- port).
Finally, a gratuity can be given with the intent to  induce a public
official to propose, take, or shy away from  some future official act.
See, e.g., United States v. Sawyer, 85  F.3d 713 (1st Cir. 1996)
(gifts to legislators who had ability to  affect company's ongoing
legislative concerns constitute un- lawful gratuities under
analogously worded Massachusetts  statute). This third category would
additionally encompass  gifts given in the hope that, when the
particular official  actions move to the forefront, the public
official will listen  hard to, and hopefully be swayed by, the giver's
proposals,  suggestions, and/or concerns.


The tickets to the inaugural dinner, which form the basis of 
Schaffer's gratuity conviction, fall into the third variety. Two 
latent official actions of interest to Tyson Foods--i.e., zero 
tolerance and safe handling labels--having clearly been es- tablished,
the sufficiency of the evidence question concerning  their nexus with
the gratuity is two-fold. First, we assess  whether a rational trier
of fact could conclude that Schaffer  either provided or knowingly
aided and abetted Tyson Foods  in the provision of the inaugural
tickets to Secretary Espy.10 




__________

n 10 Since the district court instructed the jurors that they could 
find Schaffer guilty for aiding and abetting either of the counts 
charged, we use the phrase "knowingly aided and abetted the  provision
of" as a shorthand for the full set of instructions that  follow.


[ ] You may find the defendants or either of them guilty of  the Meat
Inspection Act and gratuities counts charged without  finding that
they personally committed each of the acts that  made up the crime or
that they were present while the crime  was being committed.


If the evidence supports such a finding, we then ask whether  a
rational jury could additionally have determined that the  thing of
value was provided with the requisite statutory intent  to influence
Secretary Espy in his actions with regard to  those policies.
Beginning with the first question, we think it  abundantly clear that
the evidence presented satisfies the  burden of sufficiency. The
government introduced a series of  internal Tyson Foods documents
relating to the inaugural  dinner, including: (i) two separate check
requisitions to cover  the cost of Tyson Foods' tables, each filled
out and signed by  Schaffer, see 6/17/98 Tr. at 392-93; (ii) a memo
from Schaffer  to the Tyson inaugural team listing table assignments
for the  dinner, including those of Espy, his girlfriend, and his two 
siblings, see GX87; and (iii) a letter from the presidential 
inaugural regarding procedures for the event, including the  need for
tickets, next to which Schaffer had written that he  would pick up and
distribute them. See GX36; 6/24/Tr. at  1595-95. In addition, the
government elicited testimony that  Schaffer had been involved in
coordinating Tyson Foods'  participation at various inaugural events.
See 6/19/98 Tr. at  913. While the defense sought to minimize
Schaffer's role,  the government's testimony, taken as a whole,




__________

n Any person who in some way intentionally participates in the 
commission of a crime aids and abets the principle offend- er.... 


To find that a defendant aided and abetted in committing a  crime, you
must find that the defendant knowingly associated  himself with the
persons who committed the crime, that he  participated in the crime as
something he wished to bring  about, and that he intended by his
actions to make the crime  succeed.


Now, some affirmative conduct by the defendant to help in  planning or
carrying out the crime is necessary.... It is  sufficient if you find
beyond a reasonable doubt that the crime  was committed by someone and
that the defendant in question  knowingly and intentionally aided and
abetted the principal  offenders in committing the crime.


6/25/98 Tr. at 1780-81.


conclusion that Schaffer participated in providing the four  inaugural
tickets to Secretary Espy.


The core dispute on the evidentiary sufficiency of the  nexus, however,
cannot be disposed of as easily. Because of  its subjective focus on
the motivation behind Tyson Foods'  largess, it necessitates a more
extensive discussion. In as- sessing the sufficiency of the evidence
presented as to wheth- er Schaffer acted with the requisite intent to
influence a  particular official act, we begin with the recognition
that any  attempt to reduce the gratuity statute's nebulous "for or 
because of" language into a more concrete formulation will 
necessarily be imperfect. When faced with competing expla- nations for
some specific conduct, conduct which could be  either innocuous or
illicit depending upon the particular moti- vation involved, the
inquiry will rarely be clean or neat. Both  common sense and practical
experience, each of which we  ascribe to the jury, instruct that human
beings rarely act for  a single purpose alone. Rather, activity is
more typically  multi-causal, and directed towards achieving several
rather  than a single end[s]. Accordingly, we do not view the ques-
tion of intent in the Manichean terms of the prosecution and  the
defense, focusing instead upon the more realistic and  probative
question of whether the acts in question were  substantially, or in
large part motivated by the requisite  intent to influence the
Secretary. As a final caveat, we note  that as with most cases in
which the defendant's state of mind  is at issue, it may be near
impossible to establish the requisite  mens rea through direct
evidence. In the absence of any  specific statement or other
contemporaneous documentation  of the defendant's subjective
motivation, the trier of fact can  do no more than ascribe an intent
on the basis of the  circumstances surrounding the defendant's
actions. See, e.g.,  United States v. Woodward, 149 F.3d 46, 57 (1st
Cir. 1998) (in  assessing whether defendant sought to influence
official acts,  "[t]he jury was entitled to infer the defendant's
intent from  the circumstances surrounding his actions, from indirect,
as  opposed to direct, evidence") (citation omitted); Chedick v. 
Nash, 151 F.3d 1077, 1083 (D.C. Cir. 1998) (despite absence of 


circumstantial evidence); United States v. Castellanos, 731  F.2d 979,
984 (D.C. Cir. 1984) ("no legal distinction is made  between
circumstantial and direct evidence in determining  whether sufficient
evidence supports the verdict").


After an extensive examination of the circumstances sur- rounding the
provision of the inaugural tickets, we cannot say  that the trier of
fact could reasonably have found the requi- site intent to influence
beyond a reasonable doubt. The  evidence presented was far too meager
to support such a  conclusion. In support of its argument to the
contrary, the  independent counsel points to the following trial
testimony:  (i) as a regulated entity, Tyson Foods routinely had
matters  of interest before the USDA; (ii) by 1992, FSIS had begun 
developing new safety measures, including zero tolerance and  safe
handling labels; (iii) a senior scientist at Tyson Foods,  Dr. Ellis
Brunton, knew that the USDA had been developing  new pathogen control
policies prior to the E coli outbreak;  (iv) Dr. Brunton generally
kept Schaffer abreast of pending  regulatory developments that could
impact Tyson Foods; and  (v) the E coli outbreak heightened USDA's
interest in both  zero tolerance and safe handling labels, resulting
in the  announcement of new policies with respect to each.11 Accord-




__________

n 11 At oral argument, the independent counsel additionally refer-
enced the Texas Food Industry Assoc. v. USDA opinion, 842  F. Supp.
254, 256 (W.D. Tex. 1993), wherein the district court had  enjoined
enforcement of the safe handling labels emergency interim  regulation
for failing to satisfy the good cause exception to the  Administrative
Procedure Act's notice and comment requirement.  See 5 U.S.C. s
553(b). This decision had been introduced into  evidence during Jack
Williams's defense, and his counsel had read a  portion of it to the
jury. See 6/24/98 Tr. at 1573-74. In a separate  part of that opinion,
the court quotes from the "Background" and  "New Policy Direction"
sections of the USDA's interim rule publish- ed in the Federal
Register. See 58 Fed. Reg. 43,478 (August 16,  1993). There, the USDA
noted that "[a]gency official [sic] in early  January began to
advocate in their speeches and writings that  mandatory safe handling
instructions on the labeling of meat and  poultry products was a
necessary component of a program to  combat foodborne illness." Id. at


ingly, although the record does not entirely support the  district
court's conclusion that "[t]here was no evidence that  Mr. Schaffer or
anybody in Tyson Foods knew or anticipated  anything about zero
tolerance or safe handling labels at the  time of the inaugural
dinner," Williams, 29 F. Supp. 2d at 7,  it still cannot support the
guilty verdict. Acknowledging the  evidence highlighted by the
independent counsel, we also note  the following undisputed testimony.
First, Tyson Foods had  purchased its three tables to the dinner
before December 24,  1992, the date on which President Clinton
announced Espy's  appointment to the position of Agriculture
Secretary. Sec- ond, Espy's name, as well as those of his girlfriend
and  siblings, appears on a January 15, 1993 memorandum drafted  by
Schaffer that lists the final table assignments for the  inaugural
dinner. See GX87. Since the E coli outbreak  occurred sometime in the
middle of January, and the USDA  did not become apprised of its actual
cause--contaminated  hamburger meat--until January 18th, the day of
the inaugu- ral dinner, USDA's subsequent heightened interest in zero 
tolerance and safe handling labels could not have motivated  the
invitation extended to Espy, which necessarily predated  January 15th.
It was not until February 4th that Secretary  Espy briefed industry




__________

n


Industry, 842 F. Supp. at 258. From this passage, completely  unrelated
to the language for which the opinion had been intro- duced on
Williams's behalf, the independent counsel alleges that the  jury
could infer that Schaffer and Tyson Foods were aware of the  USDA's
intent to act on this issue at the time of the inaugural  dinner.
While we are skeptical of the independent counsel's asser- tion that
the jury considered this non-highlighted language in  assessing the
case against Schaffer, even assuming that it did, the  language does
not support the proposition for which the indepen- dent counsel cites
it. Simply put, the vague temporal reference to  "agency official[s]"
advocating mandatory safe handling instructions  in "early January" is
not sufficient to establish that the USDA had  in fact officially
initiated a program of promoting safe handling  labels, let alone that
Tyson Foods had been privy to the relevant  writings or speeches,
before the time when Tyson Foods offered the  inaugural tickets to


Once the E coli outbreak is out of the picture, all that  remains is an
awareness by a regulated entity that the USDA  had been developing a
new pathogen control policy.12 In our  opinion, the inferential leap
across the chasm separating this  premise from the requisite
conclusion--that the tickets were  intended, beyond a reasonable
doubt, to induce Espy to  propose, take, or shy away from some action
on zero toler- ance, or alternatively to ensure that Tyson Foods'
proposals,  suggestions and/or concerns were accorded special
scrutiny-- cannot be considered reasonable. The breadth of the Su-
preme Court's Sun-Diamond opinion with respect to identi- fying a
particular official act must of necessity spill over  here, creating
the need for a more definitive link than the  prosecution provided. To
hold otherwise would mean that  any time a regulated entity became
aware of any inchoate  government proposal that could affect its
interests, and sub- sequently provided something of value to a
relevant official, it  could be held to violate the gratuity statute
in the event that  the inchoate proposal later appeared in a more
concretized  form. Were the inferential leap from this scenario to an 
intent to influence considered reasonable, we would in effect  revive
the status-based reading of the gratuity statute the  Court so roundly
rejected in Sun-Diamond. We balk at any  such end run.


2. The Meat Inspection Act and the Russellville Birthday  Party


Schaffer was additionally found guilty of violating the anti-
corruption provision of the Meat Inspection Act in connection  with
his role in securing the attendance of Secretary Espy  and his
girlfriend at Don Tyson's May 1993 Russellville party.  Once again,
our assessment of the verdict's evidentiary suffi- ciency begins with
the statutory language.


In relevant part, 21 U.S.C. s 622 provides that:




__________

n 12 The jury was not presented any evidence that Schaffer, as  opposed
to Tyson Foods, was actually aware of the anti- contamination or safe
handling initiatives prior to the February 4th  meeting with Secretary
Espy.


Any person, firm, or corporation, or any agent or em- ployee of any
person, firm, or corporation, who shall give,  pay, or offer, directly
or indirectly, to any ... officer or  employee of the United States
authorized to perform any  of the duties prescribed by this subchapter
... any  money or other thing of value, with intent to influence  said
... officer or employee of the United States in the  discharge of any
duty provided for in this subchapter,  shall be deemed guilty of a
felony.... 


(Emphases added). Similar to the gratuities prohibition, a  violation
of this statute requires the presence of three sepa- rate elements:
the defendant must have (i) directly or indi- rectly given (or aided
and abetted the giving of); (ii) a thing  of value to a covered
official; (iii) with the intent to influence  the discharge of any
official duty under the Meat Inspection  Act.13 The Act clearly
applies to Tyson Foods, as its Beef  and Pork Division accounted for
eight to ten percent of its  overall business. See 6/19/98 Tr. at 910.
As with the unlaw- ful gratuities count, the core of the dispute
centers around  whether the prosecution presented sufficient evidence
for a  reasonable jury to conclude that Schaffer acted with the 
requisite intent to influence any of the Secretary's duties  under the


Again, we first address a preliminary issue of statutory  construction.
With respect to the requisite intent, the lan- guage of the Meat
Inspection Act differs in material ways  from that of the federal
gratuity statute. Whereas the Meat  Inspection Act expressly requires
an "intent to influence the  discharge of any duty under the Act," an
unlawful gratuity  requires that the thing of value be given "for or
because of  any official act performed or to be performed." While this
 linguistic distinction might appear minor when viewed in  isolation,
the place that these two provisions occupy within  their respective
statutory schemes magnifies the textual dif- ference in important
respects. See Conroy v. Aniskoff, 507 




__________

n 13 The terms of the Act apply to all cattle, sheep, swine, goats, 
horses, mules, and other equines, and to meat products derived 
therefrom. See 21 U.S.C. ss 603-624.


U.S. 511, 515 (1993) ("the meaning of statutory language,  plain or
not, depends on context").14 In its Sun-Diamond  opinion, the Court
emphasized the structure of the gratuity  statute, focusing upon the
explicit definition given the statuto- ry term "official act" and the
consequences that logically  followed from that particular wording.
The need for an  explicit link with a specific act flowed directly
from this  statutory language, as the gratuity provision's "insistence
 upon an 'official act,' carefully defined,15 ... [required] that 
some particular official act be identified and proved." 119 S.  Ct. at
1407. In the absence of this limiting principle, the  Court
recognized, the gratuity statute would unwittingly dis- place much of
the elaborate statutory and administrative  regime otherwise
regulating the enrichment of public officials.  See id. at 1410.


By way of comparison, the Meat Inspection Act can be seen  as having
both a more limited and a more expansive focus.  On the one hand, the
scope of its gratuity provision is  circumscribed by the narrow class
of individuals upon which it  operates. By definition, the statute
covers only two catego- ries of persons: officials with duties under
the Meat Inspec- tion Act, and those seeking to influence these
officials in the  discharge of their duties. In this sense, the Meat
Inspection  Act exemplifies what the Sun-Diamond Court called a "tar-
geted prohibition;" it does not threaten, as did the federal  gratuity
statute, to make "misfits" out of other pieces of a  complex
regulatory puzzle.16 Id. Within the narrow range of 




__________

n 14 Although the Court's Sun-Diamond decision speaks only to the 
federal gratuity statute, the interpretive methods utilized therein, 
around which we shape our discussion, are nevertheless instructive. 
In contrast to our dissenting colleague, we believe that the Sun-
Diamond decision suggests a holistic approach to interpreting 
statutes that regulate gift-giving, and that it counsels an inquiry 
that extends beyond merely reading the word "any" to mean "some 
particular." See Dissenting Opinion ("Diss. Op.") at 2.


15 See supra n.6.


16 Nothing in the language or structure of the Meat Inspection  Act
limits its proscription to the giving of bribes, as opposed to 


meat-related activities it covers, however, the Act's gratuity 
provision is actually more expansive than the general gratuity 
statute, as it seemingly can be triggered without reference to  a
particular official act. The Meat Inspection Act lacks a  counterpart
to the careful definition that the gratuity statute  gives the term
"official act," the very statutory language upon  which the
Sun-Diamond Court so heavily relied in requiring  a particularized
nexus. In fact, the Act does not place any  restrictive definitional
gloss upon what constitutes "the dis- charge of any duty under the
Act," allowing the ordinary  meaning of those terms to govern the
interpretation. See  United States v. Espy, 145 F.3d 1369, 1371 (D.C.
Cir. 1998) (a  "duty" is "something that one is expected or required
to do  by moral or legal obligation") (citation omitted).


As our own Espy opinion indicates, the duties of the  Agriculture
Secretary under the Meat Inspection Act are  manifold. See id. As part
of the Secretary's general obli- gations to protect the health and
welfare of the consuming  public from unwholesome or adulterated meat,
the Act directs  that the Secretary shall "make such rules and
regulations as  are necessary for the efficient execution" of its
provisions, 21  U.S.C. s 621, and shall cause the inspection, in
accordance  with such rules and regulations, of all meat carcasses
capable  of use as human food, see 21 U.S.C. s 604, the inspection of 
all meat food products prepared for commerce, see 21 U.S.C.  s 606,
and inspections of all establishments where meat is  slaughtered,
salted, packed, or rendered. See 21 U.S.C.  s 608. The Secretary's
duty to make all necessary rules and  regulations lacks the
particularized focus of the term "official  act," whether or not the
Secretary were to take certain  official acts in fulfilling this duty.
These duties extend be- yond the mere development and promulgation of
food safety  regulations, and encompass an ongoing obligation to




__________

n gratuities, as our dissenting colleague appears to suggest. See 
Diss. Op. at 3. While we have previously held that bribery requires  a
defendant to act "corruptly," see United States v. Gatling, 96 F.3d 
1511, 1522 (D.C. Cir. 1996), the Act speaks only of acting with an 
"intent to influence," the scienter requirement associated with an 
unlawful gratuity. See id.


enforcement in conformity therewith. Accordingly, one could  unlawfully
attempt to influence the Secretary in the discharge  of his
broad-based duties without identifying any particular  policy then at
the regulatory fore. The offender might seek  to ensure that his
company's interests were addressed by  whatever decisions or policies
ultimately moved up the agen- cy's radar screen, or want simply to
affect a pro-enforcement  or deregulatory tilt, and a more favorable
attitude toward all  regulatees. We belabor these obvious points
because they  illustrate the ways in which the Meat Inspection Act's
gratui- ty prohibition is more expansive, both substantively and 
temporally, than the general federal gratuity statute under  the
Supreme Court's Sun-Diamond decision. Given the  motivating force
behind the Meat Inspection Act--i.e., a  congressional desire to
address the outrageous sanitary con- ditions documented in Upton
Sinclair's book The Jungle--the  breadth of its gratuity provision is


That said, the fact remains that Schaffer's trial proceeded  on the
theory that section 622 of the Meat Inspection Act and  section
201(c)(1)(A) of the federal gratuity statute were co- extensive. See
Williams, 29 F. Supp. 2d at 6. The jury  instructions required the
same link between the thing given  and an intent to influence a
particular official action, here  either zero tolerance or safe
handling labels, as they had for  the gratuities counts. Although we
are inclined to believe  that the Meat Inspection Act contains a less
rigorous intent  requirement than the federal gratuity statute, we
additionally  believe that the prosecution presented evidence linking
the  Russellville party with an intent to influence these specific 
policies sufficient for a reasonable jury to have found Schaffer 
guilty beyond a reasonable doubt under the more stringent  standard of
the gratuity statute. Because our conclusion that  the evidence
supports a finding of guilt under the gratuity  statute's intent
requirement necessarily includes a finding  that a lesser burden would
similarly be satisfied, we leave the  precise articulation of the Meat
Inspection Act's intent re- quirement to another day. Accordingly, we
will assess the  verdict against the standard of the gratuity statute,


standard advocated and employed by our dissenting col- league. See
Diss. Op. at 2-3. As with the inaugural dinner,  we begin by asking
whether a rational trier of fact could  conclude that Schaffer either
provided or knowingly aided  and abetted Tyson Foods in bestowing the
Russellville party  upon Secretary Espy and Ms. Dempsey. Assuming the 
evidence supports that finding, we go on to ask whether a  rational
jury could additionally have determined that the  thing of value was
provided with the requisite intent to  influence Secretary Espy's
actions on either zero tolerance or  safe handling labels.


On the basis of the evidence presented, a reasonable jury  could
securely find that Schaffer participated in securing  Espy's
attendance at the Russellville party. Viewing the trial  testimony
through prosecutorial lenses, the chronology of  events proceeded as
follows. In April of 1993 Don Tyson  sent Secretary Espy the printed
invitation to his weekend  gala, along with a hand-written note that
informed Espy of  both a pending invitation to an Arkansas Poultry
Federation  ("APF") meeting scheduled to overlap with the party and 
Tyson's intent to provide transportation to and from Russell- ville on
the company jet. Schaffer received a copy of this  writing. See GX90.
Roughly five days later, the APF Presi- dent circulated a memorandum
to members of the APF  Board indicating that Secretary Espy would be
in Arkansas  on May 15th, clearly implying that Espy already intended
to  attend the Russellville party before being invited to the APF 
meeting. That same day, the Senior Vice President of the  APF drafted
a letter inviting Secretary Espy to speak at the  May 15th meeting in
Russellville. See 6/18/98 Tr. at 486-88;  GX91B; GX100. Rather than
sending the letter directly to  Espy, however, he sent it overnight
delivery to Schaffer.  Schaffer then arranged for its mailing and
faxing to Espy.  See 6/18/98 Tr. at 535-38, 554; GX91A; GX91B; GX92; 
GX155; GX156. The APF meeting, at which Secretary Espy  ultimately
agreed to speak, provided an official reason for  Espy to be in
Russellville the weekend of the Tyson affair.  Given the anomalous


ably infer that the meeting, while legitimate, had nevertheless  been
set up to provide Espy with official cover.


Schaffer's role in arranging Espy's attendance in Russell- ville did
not end there, as he had a series of communications  regarding the
trip with Secretary Espy's USDA travel coordi- nator. In response to
her logistical questions involving the  Secretary's official
itinerary, Schaffer stated that the all-day  APF meeting would involve
some 150 people (rather than the  15-20 who came), see 6/18/98 Tr. at
491, that he would meet  Secretary Espy at the airport and escort him
to the meeting,  that it would be followed by a dinner meeting to
which the  Secretary was invited, that the Secretary would be
overnight- ing at the Tyson Complex, and that the Secretary would be 
transported back to Washington on an APF charter plane.  Schaffer
additionally provided a list of the other passengers  on that flight.
See 6/18/98 Tr. at 558-70. With respect to the  transportation
arrangements, Schaffer requested use of the  Tyson Foods corporate
aircraft that transported Dempsey to  Russellville for the weekend,
and that transported her and  Espy back to Washington that Sunday. See
6/17/98 Tr. at  318-20; GX103. Despite these extensive efforts, when
subse- quently questioned by an FBI agent, Schaffer denied know- ing
who had arranged for the Secretary or his girlfriend to  attend the
Russellville party or to stay at the Tyson Complex.  In addition, he
asserted that APF officials, rather than any- one at Tyson Foods, had
contacted Espy and arranged his  attendance at the APF meeting. See
6/22/98 Tr. at 1209-13.  On the basis of this testimony, a reasonable
jury could find  that Schaffer not only helped to arrange Espy's APF
speak- ing engagement, but that he actively participated in securing 
the attendance of the Secretary and his girlfriend at the 


Turning now to the more difficult question of intent, we  note that the
independent counsel prosecuted the case under  a theory that
corresponds to the third variant of our three- part typology of
gratuities offenses.17 See discussion supra 




__________

n 17 Since a violation of the Meat Inspection Act, in contrast to the 
general gratuity statute, additionally requires a link between the 


pp. 13-14. In other words, the independent counsel sought to  establish
that Espy's attendance at the party was secured  with the intent to
induce the Secretary to propose, take, or  shy away from some future
act with respect to either zero  tolerance or safe handling labels, or
alternatively in the hope  that, when those particular issues moved to
the regulatory  forefront, the Secretary would listen hard to, and
hopefully be  swayed by, the Tyson Foods' proposals, suggestions,
and/or  concerns. Again recognizing that proof of an actor's subjec-
tive motivation will likely require recourse to circumstantial  rather
than direct evidence, see discussion supra pp. 16-17,  we believe that
the independent counsel has presented suffi- cient evidence to
establish the requisite link.


The district court rejected the jury verdict on two separate  grounds,
corresponding to the two identified official acts, each  of which we
address in turn. First, the court noted that  although the Secretary
had announced his intent to move  forward with the labeling initiative
at his February 4th meet- ing with industry representatives, he did
not promulgate the  interim regulation until three months after the
Russellville  party. See Williams, 29 F. Supp. 2d at 7. Once the
proposal  had moved to the regulatory forefront in the aftermath of
the  January 1993 E coli outbreak, however, we do not see how  the
precise timing of its official publication undercuts an  inference
that Tyson Foods hoped to influence its final form  through bestowing
largess. The district court's conclusion,  echoed by our dissenting
colleague, see Diss. Op. at 4, pre- sumably picked up on Schaffer's
argument that Tyson Foods  did not oppose the labeling proposal prior
to its August  promulgation, and even then only objected to its
stringent  timing requirements, not to its substance. But again, we do
 not regard the timing sequence as negating a reasonable  inference of
intent, particularly under the deferential stan- dard we use in
reviewing a jury's verdict of guilt. The  statute requires an intent
to influence, not an attempt to  block or to eviscerate some




__________

n favor and a policy that specifically affects meat, the prosecution 
sought to make this connection as well.


economics of predatory practices instructs that larger compa- nies may
support and encourage stringent new regulations, as  the marginal cost
of complying with a regulation will typically  be higher for small
companies. See generally, Ann P. Bartel  & Lacy Glenn Thomas,
"Predation through Regulation: The  Wage and Profit Effects of the
Occupational Safety and  Health Administration and the Environmental
Protection  Agency," 30 J.L. & Econ. 239 (1987). Additional regulation
 can thus help to undermine competition, and this fact of  business
life severs any necessary link between opposition  and influence.
Since the requisite intent under the statute  can appear in many
forms, we find it irrelevant under the  statute whether the party
providing the gratuity hoped to  induce or to discourage an official
act, or even to encourage  the recipient to adhere to the status


With respect to zero tolerance, the district court concluded  that
insofar as that policy related to meat, "[t]he policy had  already
been implemented, on March 2, 1993, so the [Act's]  requisite 'intent
to influence' that action could not have been  present in May."
Williams, 29 F. Supp. 2d at 7. We do not  read the record the same
way. While the generative "our  tolerance for fecal matter will be
zero" memorandum had  been issued on March 2nd, the record indicates
that FSIS  continued to develop and the USDA continued to implement 
its pathogen control policy throughout 1993. Dr. Cross testi- fied
that FSIS worked on a policy of zero tolerance for meat  and poultry
all during 1993, and that the policy was not ready  for presentation
to the Secretary until November of that  year. See 6/17/98 Tr. at
466-67. Moreover, when Dr. Cross  left FSIS in 1994, his departure
memorandum outlining pend- ing issues listed several elements of the
pathogen reduction  program for meat that had been originally
introduced to the  public on February 4th and 5th.18 See GX120; GX116.
Fi- nally, whereas the district court emphasized that zero toler-




__________

n 18 Contrary to the dissent's suggestion, see Diss. Op. at 3 n.1, all 
of the evidence we recount here involves the USDA's policy of zero 
tolerance for meat. We are not concerned with, and in no way rely 
upon, the course of the USDA's zero tolerance proposal for poultry.


ance applied only to cattle slaughter establishments, which  Tyson
Foods had never owned, Dr. Cross's congressional  testimony
illustrates that USDA's pathogen control policy  extended to
processing plants as well, which Tyson Foods did  own. See GX116. In
any event, regulations governing the  meat industry eventually affect
all those in the business of  selling meat products, regardless of
where they fall on the  stream of commerce linking the farm to the
supermarket  shelf. Government initiatives that affect the cost of
meat as a  raw material logically impact meat resellers like Tyson


In the absence of any direct statement by Schaffer or  Tyson Foods that
Espy's attendance at the Russellville party  had been substantially
motivated by an intent to influence the  Secretary, we assess the
rationality of the jury's verdict by  examining the evidence before
it. Our reading of the record  reveals that Schaffer and other
officials at Tyson Foods had  extensive communications with the
Secretary and his staff, in  each of which they sought to persuade
USDA to shift a  pending policy in one direction or another. With
respect to  the safe handling label issue alone, the prosecution
introduced  a series of written communications seeking to sway the 
USDA, each of which, in some form, had gone through  Schaffer. The
jury had before it: (i) a letter from the Foods  Regulation Manager
and the VP of Operations, Beef and  Pork Division at Tyson Foods to
Secretary Espy, coupled  with testimony that Schaffer reviewed every
such document  directed at government officials and the public, see
GX130,  6/23/98 Tr. at 1290; (ii) a letter from Senator Dale Bumpers 
(essentially drafted by Tyson Foods) to Secretary Espy and  to Vice
President Gore, copies of which were simultaneously  sent to Schaffer,
along with testimony regarding contempora- neous communications
between Schaffer and Senator Bump- ers's office about the issue, see
GX131, GX131A, 6/19/98 Tr. at  848-52, 6/23/98 Tr. at 1273-75; and
(iii) a letter on the  labeling issue from Jack Williams to the
point-man for the  White House with whom the Secretary was in close
contact.  See GX136, GX138. In addition, the jury heard testimony 
from George Watts, President of the National Broiler Coun- cil, about


had scheduled with Secretary Espy to discuss the labeling  issue. Watts
additionally admitted to drafting a pre-meeting  memorandum wherein he
communicated to the participants  the general impropriety of
discussions between the Secretary  and industry representatives about
regulations in the rule- making stage, and the correlative need to
tiptoe around the  issue. See 6/18/98 Tr. at 629-39, GX124. Finally,
Patricia  Dempsey testified that she witnessed John Tyson confront 
Secretary Espy about the labeling issue at a September 1993 
reception, seeking to persuade him of the need to alter the  rule. See


Additional evidence strongly implied that Schaffer had  attempted to
cover up the involvement of Tyson Foods in  Secretary Espy's trip to
Russellville. Schaffer took a number  of further actions which
collectively obscured the fact of  Espy's attendance at the party from
other USDA officials.  For example, when communicating with Espy's
travel coordi- nator, he omitted to mention that the aircraft
transporting  the Secretary belonged to Tyson Foods, describing it
instead  as an APF charter. See 6/18/98 Tr. at 573-75. When the  USDA
sought to reimburse the cost of Espy's transportation  and lodging, as
required by agency policy, Schaffer directed  the APF to create phony
invoices and allowed it to receive  payment for costs incurred by
Tyson Foods. See id. at. 495- 502. Finally, Schaffer omitted Patricia
Dempsey's name from  the passenger list of those traveling with the
Secretary on the  corporate plane from Russellville, thereby obscuring
the pri- vate nature of the trip from Espy's travel coordinator. See 


While admittedly circumstantial, we believe that this con- fluence of
testimony meets the standard of sufficiency. At a  minimum, the
independent counsel's case: (i) identified spe- cific policies of
concern to the defendant and his employer;  (ii) that were pending,
rather than merely inchoate, at the  time of the gratuities; (iii)
about which the defendant and/or  his employer had timely
communications with the recipient  public official; (iv) through which
it made known its concerns,  recommendations, and the likely costs of
compliance with the  policy in its then current form; (v) and that the


question was, at the time he received the gratuity, in a  position to
influence the trajectory of the policies in question.  See United
States v. Haldeman, 559 F.2d 31, 115-16 (D.C.  Cir. 1976) (in banc)
(per curiam) ("Except in extraordinary  circumstances, criminal intent
cannot be proved by direct  evidence; it is therefore not only
appropriate but also neces- sary for the jury to look at 'all of the
circumstances' in  determining specific intent.") (citation omitted).
Generally  speaking, when a gratuity prosecution has established each
of  these elements, the jury can rationally decide the intent 
question either way. While the jury could have accepted  Schaffer's
defense, finding the gratuities to have been moti- vated by a desire
either to generate warm feelings towards  Tyson Foods or to satisfy
Don Tyson's penchant for sur- rounding himself with celebrities, our
criminal justice system  leaves it to the jury to sort out the
competing constructions of  the evidence.


B. Schaffer's Cross-Appeal


Having decided that the district court erred in granting  Schaffer's
motion for a judgment of acquittal on the Meat  Inspection Act count,
it becomes necessary to review the  court's conditional denial of
Schaffer's alternative motion for a  new trial. Schaffer seeks a new
trial on two separate  grounds, claiming that each creates sufficient
doubt in the  integrity of the jury verdict to constitute reversible
error.  Because we find each of the alleged grounds harmless under 
the prevailing standard for assessing trial errors, we affirm  the
district court's order and deny Schaffer's cross-appeal.


1. The Rule 608(a) Question


Schaffer challenges a series of rulings by the district court  which
collectively precluded the defense from introducing  testimony
regarding the government's grant of immunity to  both John and Don
Tyson. During cross-examination, gov- ernment witness John Tyson, who
had been identified to the  jury as an unindicted co-conspirator and
as Schaffer's boss,  testified that he and Schaffer had never
discussed the possi- bility of influencing Secretary Espy through
largess, nor did  he ever think that Espy could be influenced thereby.


6/19/98 Tr. at 948. Believing that these statements complete- ly
exonerated him, Schaffer sought to introduce the fact of  the Tysons'
immunity to keep the jury from assuming that  John Tyson could be
prosecuted were he to admit to having  discussions about influencing
Secretary Espy. Unless cured  of this false presumption, Schaffer
argued, the jury would  likely dismiss John Tyson's testimony on the
grounds that he  had a strong incentive to prevaricate. The district
court  excluded this line of questioning, concluding that it would 
contravene Federal Rules of Evidence 608(a)'s proscription on 
bolstering a witness whose credibility had not been subjected  to
attack. In his motion for a new trial, Schaffer challenged  the
court's construction of Rule 608(a), and alleged that it had 
improperly and prejudicially kept relevant exculpatory evi- dence from
the jury. While the district court's interpretation  and application
of Rule 608(a) are not without doubt, we find  the weight that
Schaffer ascribes to the excluded testimony  even more dubious.
Assuming arguendo that the court im- properly excluded this testimony,
we deny Schaffer's cross- appeal because any error was clearly


Focused upon preventing the introduction of irrelevant,  time-consuming
testimony, Rule 608(a) provides that:


The credibility of a witness may be attacked or sup- ported by evidence
in the form of opinion or reputation,  but subject to these
limitations: (1) the evidence may  refer only to character for
truthfulness or untruthfulness,  and (2) evidence of truthful
character is admissible only  after the character of the witness for
truthfulness has  been attacked by opinion or reputation evidence or


Fed. R. Evid. 608(a). The rule appears inapplicable, both  facially and
structurally, to the testimony that Schaffer  sought to introduce.
Turning to the language of Rule 608(a),  the existence of John and Don
Tyson's immunity agreements  constitutes neither opinion nor
reputation evidence, the only  two subjects mentioned therein.
Moreover, as the rule  speaks in general terms of a witness's
character for truthful- ness or untruthfulness, it does not touch upon


question of whether a generally truthful witness may have a  motive to
lie in one specific instance. See United States v.  Lindemann, 85 F.3d
1232 (7th Cir. 1996) (distinguishing five  acceptable methods for
attacking a witness's credibility, two  of which are attacking the
witness's character for truthfulness  and demonstrating bias); 27
Wright and Gold, Federal Prac- tice and Procedure s 6094 (1990)
(same). As the Advisory  Committee Notes to Rule 608 explains, while
evidence of a  witness's general character for honesty or integrity
can pro- vide de minimis support for a conclusion as to whether he is 
testifying accurately on a particular occasion, the probative  value
of such testimony will generally be outweighed by the  needless
consumption of time involved in putting "good char- acter" witnesses
on the stand. See Fed. R. Evid. 608(a)  advisory committee's note.
Accordingly, the Federal Rules  allow the introduction of opinion or
reputation testimony to  attack a witness's credibility, but limit
such good character  testimony to situations where the witness's
veracity has al- ready been specifically impugned. In contrast to a
witness's  general character for truthfulness or untruthfulness, which
is  largely peripheral to the facts at issue in a given case, the 
question of a witness's potential bias is both particularized  and
case-specific. The presence or absence of bias has  relevance because
it speaks to whether a witness has an  interest in this case, or a
particular affinity or dislike for this  party. See United States v.
Abel, 469 U.S. 45, 51 (1984) ("A  successful showing of bias on the
part of a witness would have  a tendency to make the facts to which he
testified less  probable in the eyes of the jury than it would be
without such  testimony."); United States v. Akitoye, 923 F.2d 221,
225 (1st  Cir. 1991) (if the cross-examiner may bring out facts
tending  to show bias, "it follows that the cross-examiner can be 
allowed some latitude, in an appropriate case, to bring out the 
absence of bias-producing facts and circumstances, thereby 
strengthening the credibility of a helpful witness"). In light  of its


Even if Rule 608(a) should not have been used to exclude  the fact of
John and Don Tyson's immunity, though, any error 


made by the district court in this case was harmless. When  reviewing
non-constitutional trial error, we apply the stan- dard articulated in
Kotteakos v. United States, asking wheth- er we can say "with fair
assurance, after pondering all that  happened without stripping the
erroneous action from the  whole, that the judgment was not
substantially swayed by the  error...." 328 U.S. 750, 765 (1945). In
so doing, we cannot  merely replicate our previous
sufficiency-of-the-evidence in- quiry; rather, we ask "even so,
whether the error itself had  substantial influence" on the jury.


In this instance, looking at the record as a whole, we think  it
evident that the district court's evidentiary ruling did not  have a
substantial influence on the jury verdict. The jury  heard John
Tyson's testimony, a portion of which allegedly  exculpated Schaffer,
but apparently did not lend that portion  much credence. Had the
jurors additionally learned that  John Tyson could not be prosecuted
for any non-perjurious  testimony because of his immunity agreement,
it is still  difficult to believe that their deliberations would have
been  affected. John Tyson's credibility had already been called  into
question repeatedly by contradictory testimony. For  example, he
denied discussing the safe handling labels issue  with Secretary Espy
at a September 1993 party, see 6/19/98  Tr. at 917, while Patricia
Dempsey testified that Tyson had  confronted Espy there and requested
greater flexibility with  the safe handling labels regulation. See
6/22/98 Tr. at 1095.  Tyson also disputed the proposition that his
company had  been "concerned" about the labeling issue, see 6/19/98
Tr. at  919, despite the extensive Tyson Foods lobbying effort docu-
mented in the record. The fact that Tyson lacked a penal  motive to
cover up the company's or his own attempt to  influence Espy would
have done little, we think, to alter the  jury's assessment of his
credibility. Since any admission that  Tyson Foods' future president
had conspired with others to  influence the Secretary of Agriculture
would have generated  a torrent of negative publicity, which itself
would have been  highly damaging to the company's (and John Tyson's)
busi- ness interests, the jury had stronger reasons to be skeptical. 
Finally, even assuming that an awareness of his immunity 


agreement would have sufficiently buttressed Tyson's credi- bility that
the jury believed him, his testimony still did no  more than establish
an expected negative. Given the pre- sumptive expectation that
corporate officials would not be so  brazen as to discuss some plan or
scheme to influence the  Secretary openly, but would more likely
proceed by winks  and nods, the mere absence of any conversations
between  himself and Schaffer about such a conspiracy casts little if 
any doubt upon the jury's determination that Schaffer had  acted with
the requisite intent. All in all, then, we cannot  conclude that the
jury would have been swayed in a different  direction solely by
learning that Tyson testified under a grant  of immunity.


2. The Independent Counsel's Opening and Closing Argu- ments


Schaffer also challenges a series of statements made by the 
prosecution during its opening, closing, and rebuttal remarks,  each
of which allegedly misstated the elements of the crimes  charged. On
each occasion, Schaffer contends, the prosecu- tion invited the jury
to convict him for engaging in lobbying  activities alone, without
finding the necessary intent to influ- ence specific official acts
needed for conviction under the  federal gratuity statute and the Meat
Inspection Act.19 




__________

n 19 In its opening remarks, the prosecution referenced Tyson  Foods'
desire to "get cozy" with Secretary Espy four times. While  it
directly modified this statement on two occasions by stating that 
gifts "were given in order to get cozy so that they would influence 
the Secretary of Agriculture in the performance of his duties," 6/16 
Tr. at 100, 99, the independent counsel did speak only of "getting 
cozy" during the other two. In its closing rebuttal statement, the 
independent counsel also made the following remark:


What the defendants did here, we submit, should not be  tolerated. You
will decide by your verdict what the standard  is. The defendants are
guilty beyond a reasonable doubt of the  charges contained in the
indictment.


The question is, do you want lobbyists for regulated industry  to give
anything to an official that regulates your food supply  when so much
is at stake?


Measuring the potential prejudicial effect of these allegedly  improper
statements with reference to the entire proceeding,  as the Supreme
Court instructed in United States v. Young,  470 U.S. 1, 11-12 (1985),
we cannot say that Schaffer was  unfairly prejudiced.


To determine whether improper prosecutorial statements  prejudiced a
defendant's right to a fair trial, this court  generally considers
four separate factors. We examine: (i)  the severity of the
misconduct; (ii) the measures taken to  cure the misconduct; (iii) the
certainty of conviction absent  the improper misconduct, see United
States v. Perholtz, 842  F.2d 343, 361 (D.C. Cir. 1988); and (iv) the
centrality of the  issue affected by the error. See United States v.
Gartmon,  146 F.3d 1015, 1026 (D.C. Cir. 1998). Reviewing the trial 
record as a whole, as required by this fact-intensive inquiry,  we do
not believe that the jury was substantially swayed by  the independent
counsel's isolated missteps. In their opening  and closing remarks,
both the prosecution and the defense  continually stressed to the jury
the need to link the things of  value with an intent to influence
Secretary Espy. See, e.g.,  6/26/98 Tr. at 100, 103, 115, 125, 130,
135; 6/25/98 Tr. at 1703,  1717, 1726, 1729, 1737, 1742, 1766. The
district court did the  same in its instructions to the jury,
repeatedly emphasizing  that Schaffer could not be found guilty of the
offenses  charged unless he acted with the requisite intent to
influence  the Secretary. See 6/26/98 Tr. at 1778-80, 1788. From start
 to finish, this question of intent had center stage at the trial. 
Because we have no doubt that the jury understood and  deliberated on
the basis of the proper legal standard, we  cannot say that any of the
statements in question had any  effect on the jury verdict,


III. Conclusion


For the reasons set forth, we affirm the district court's  judgment of
acquittal in part and reverse in part. Because 




__________

n See 6/25/98 Tr. at 1765-66. Defense counsel immediately objected, 
and the court sustained the objection and instructed the jury to 
disregard the statement.


we additionally reject the challenges raised in Schaffer's  conditional
cross-appeal, we vacate the judgment of acquittal  on the Meat
Inspection Act count, reinstate the jury verdict,  and remand for
sentencing.


So ordered.


Karen LeCraft Henderson, Circuit Judge, concurring in part  and
dissenting in part:


I concur in the majority's holding that the gratuity verdict  is not
supported by the evidence but I disagree with its  reversal of the
district court's judgment of acquittal on the  Meat Inspection Act
count. I believe, like the district court,  that the government failed
to adduce evidence to support a  finding of intent to influence
discharge of a specific duty  under the Meat Inspection Act, as
required by the United  States Supreme Court's decision in United
States v. Sun- Diamond Growers of Calif., 119 S. Ct. 1402 (1999).
There- fore, I would uphold the district court's judgment of acquittal
 on each count of conviction.


Writing on a clean slate, I would propose for both section  22 of the
Meat Inspection Act (which criminalizes the giving a  thing of value
to a government official "with intent to influ- ence said [official]
in the discharge of any duty provided for in  [the Meat Inspection
Act]," 21 U.S.C. s 622) and for the  gratuity provision of 18 U.S.C. s
201(c) (which criminalizes  giving or receiving a thing of value to or
by a public official  "for or because of any official act performed or
to be per- formed by such public official," 18 U.S.C. s 201(c)) a much
 less rigorous showing of intent than the Supreme Court  imposed on
the gratuity provision in Sun-Diamond. Never- theless, given the
Court's strict construction of the gratuity  provision there, I do not
see how we can interpret section 22  more leniently here.


In Sun-Diamond, the Supreme Court concluded the  phrase "for or because
of any official act" in the gratuity  provision "means 'for or because
of some particular official act  of whatever identity'--just as the
question 'Do you like any  composer?' normally means 'Do you like some
particular  composer?' " 119 S. Ct. at 1407. The Court acknowledged 
that "[i]t is linguistically possible, of course, for the phrase to 
mean 'for or because of official acts in general, without 
specification as to which one'--just as the question 'Do you  like any
composer?' could mean 'Do you like all composers,  no matter what
their names or music?' " Id. The court 


stated, however, that "the former seems to us the more  natural
meaning." Id. Applying the same approach to sec- tion 22 of the Meat
Inspection Act, I believe the "more  natural meaning" of "in the
discharge of any duty" must be  similarly construed to be "in the
discharge of some particular  duty of whatever identity." Although, as
the majority ob- serves, the Meat Inspection Act contains no
definition of  "duty" comparable to section 201's definition of
"official act,"  on which the Sun-Diamond Court relied to buttress its
 interpretation of the gratuity provision, we must still, I  believe,
adhere to what the Supreme Court has indicated the  "natural meaning"
of "any duty" is. That this meaning is the  required one under
Sun-Diamond is reinforced by the  Court's treatment there of the
bribery provision in 18 U.S.C.  s 201(b)(1)-(2), which--in language
similar to that of section  22 of the Meat Inspection Act--proscribes
the giving  (s 201(b)(1)) and receiving (s 201(b)(2)) of a thing of
value  "with intent, inter alia, 'to influence any official act'
(giver) or  in return for 'being influenced in the performance of any 
official act' (recipient)." 119 S. Ct. at 1406 (quoting 18 U.S.C.  s


In Sun-Diamond, the Supreme Court compared section  201(b)'s bribery
provision with section 201(c)'s gratuity provi- sion and concluded
that "[t]he distinguishing feature of each  crime is its intent
element." 119 S. Ct. at 1406. The Court  noted that for a violation of
the bribery provision, "there must  be a quid pro quo--a specific
intent to give or receive  something of value in exchange for an
official act," 119 S. Ct.  at 1406 (emphasis original), while the
gratuity provision "re- quires only that the gratuity be given or
accepted 'for or  because of' an official act." Id. (emphasis added).
The Court  took for granted that the more stringent quid pro quo
intent  requirement for bribery required a connection between the 
thing given and a specific act or omission by the public  official.
The only disputed question in the Court's eyes was  whether the same
connection was required to satisfy the more  lenient intent standard
of the gratuity proscription in section  201(c). The Court determined
that it was, admonishing that  "a statute in this field that can
linguistically be interpreted to  be either a meat axe or a scalpel


to be the latter." 119 S. Ct. at 1410. We must likewise,  therefore,
treat section 22 as a scalpel which can excise only  the most
precisely delineated bribes. If the gratuity provi- sion requires
proof of a "link" between a bribe and a particu- lar act, as
Sun-Diamond held, the intent language in section  22 must also be
construed to mandate a link between the  thing given and discharge of
a specific duty the giver has  attempted to influence. Applying the
Sun-Diamond stan- dard, I cannot find evidence to support the required
link  between the May 1993 feting of Agriculture Secretary Espy  in
Russellville, Arkansas and an intent on appellee Schaffer's  part to
influence either the "zero tolerance" policy or the safe  handling


First, there is nothing in the record to connect the Russell- ville
festivities to the government's "zero tolerance" policy-- except for
the bare facts that Tyson Foods was a business  that might be affected
by such a policy and that the policy (or  its revision) may have been
actively under consideration by  the Department of Agriculture at the
time.* This coincidence  does not, as Sun-Diamond requires, "prove a
link" between  the policy and the party. See Maj. Op. at 19
(concluding that  "an awareness by a regulated entity that the USDA
had been  developing a new pathogen control policy" is not "definitive
 link" under gratuity provision). There is nothing to suggest  that at
the time of the Russellville weekend Tyson Foods was  concerned about
the policy in any specific way, much less that  it invited Secretary
Espy with the intent to influence the 




__________

n * As the majority notes, a zero tolerance policy for meat had 
already been adopted in February 1993. See Maj. Op. at 5, 18. To  the
extent the evidence shows an intent to influence a zero tolerance 
policy for poultry, it cannot support a violation of section 22 of the
 Meat Inspection Act which criminalizes only gifts to influence the 
discharge of a duty under the Meat Inspection Act. Poultry  labeling
is not a duty under the Meat Inspection Act, which governs  only "meat
and meat food products," see 21 U.S.C. ss 602, 603,  defined as "any
product capable of use as human food which is  made wholly or in part
from any meat or other portion of the  carcass of any cattle, sheep,
swine, or goats," id. s 601(j) does not  govern poultry.


policy--whether intending to "induce" or "discourage" action  on it or
to "encourse [him] adhere to the status quo." See  Maj. Op. at 27. As
for the safe handling labeling, the  evidence the majority cites to
show Tyson Foods was con- cerned about the policy relates to the
August 1993 promul- gation of emergency labeling regulations, to take
effect 60  days later, and Tyson Foods' opposition to their expedited 
implementation. See Government Exhibits 124, 130, 131,  131A, 136,
138; Trial Tr. at 625-35, 848-52, 1095, 1273-75.  There is nothing to
suggest that Tyson Foods was aware of  the expedition--or that it was
even planned--at the time of  the Russellville festivities in May