In re: Alphonso Michael (Mike) Espy , 145 F.3d 1365 ( 1998 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed June 12, 1998
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Division for the Purpose of
Appointing Independent Counsels
Ethics in Government Act of 1978, As Amended
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No. 94-2
In re: Alphonso Michael (Mike) Espy
Before: Sentelle, Presiding, and Butzner and Fay,
Senior Circuit Judges.
O R D E R
Upon consideration of the Office of Independent Counsel's
Application for Referral of a Related Matter Pursuant to 28
U.S.C. s 594(e), filed under seal on May 28, 1998, the Opposi-
tion of the United States to the Application for Referral, and
the Reply of the Independent Counsel in Support of the
Application, it is hereby
ORDERED that the application for the referral of a relat-
ed matter is denied for the reasons set forth in the accompa-
nying opinion. It is
FURTHER ORDERED that the underlying filings of the
Independent Counsel and the Attorney General, referenced
above, remain under seal.
Per Curiam
For the Court:
Mark J. Langer, Clerk
by Marilyn R. Sargent
Chief Deputy Clerk
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed June 12, 1998
No. 94-2
In Re: Alphonso Michael (Mike) Espy
Division for the Purpose of
Appointing Independent Counsels
Ethics in Government Act of 1978, as Amended
On Application for Referral of a Related Matter
Before: Sentelle, Presiding, Butzner and Fay, Senior
Circuit Judges.
Opinion for the Special Court filed Per Curiam.
Per Curiam: On May 28, 1998, Independent Counsel Don-
ald C. Smaltz submitted an application for referral of a
related matter under section 594(e) of the Ethics in Govern-
ment Act of 1978, as amended, 28 U.S.C. ss 591-599 (1994)
("the Act"). For the reasons set forth below, the application
is denied.
INTRODUCTION
This court appointed Donald C. Smaltz as Independent
Counsel ("IC") in the matter In re Alphonso Michael (Mike)
Espy, No. 94-2, on September 9, 1994, in response to the
Attorney General's application under section 592(c)(1)(A) of
the Act for the appointment of an independent counsel with
the authority to investigate whether Alphonso Michael (Mike)
Espy, Secretary of Agriculture, committed a violation of any
federal criminal law relating in any way to the acceptance of
gifts by him from organizations or individuals with business
pending before the Department of Agriculture. The order
appointing IC Smaltz set forth his jurisdiction as follows:
Donald C. Smaltz ... is hereby appointed Independent
Counsel with full power, independent authority, and jur-
isdiction to investigate to the maximum extent authorized
by the Independent Counsel Reauthorization Act of 1994
whether Alphonso Michael (Mike) Espy, Secretary of
Agriculture, has committed a violation of any federal
criminal law, other than a Class B or C misdemeanor or
infraction, relating in any way to the acceptance of gifts
by him from organizations or individuals with business
pending before the Department of Agriculture.
The Independent Counsel shall have jurisdiction and
authority to investigate other allegations or evidence of
violation of any federal criminal law, other than a Class B
or C misdemeanor or infraction, by any organization or
individual developed during the Independent Counsel's
investigation referred to above and connected with or
arising out of that investigation.
The Independent Counsel shall have jurisdiction and
authority to 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.
The Independent Counsel shall have jurisdiction and
authority to seek indictments and to prosecute any orga-
nizations or individuals involved in any of the matters
described above, who are reasonably believed to have
committed a violation of any federal criminal law arising
out of such matters, including organizations or individu-
als who have engaged in any unlawful conspiracy or who
have aided or abetted any federal offense.
The Independent Counsel shall have all the powers
and authority provided by the Independent Counsel
Reauthorization Act of 1994. It is
FURTHER ORDERED by the Court that the Inde-
pendent Counsel, as authorized by 28 U.S.C. s 594, shall
have prosecutorial jurisdiction to fully investigate and
prosecute the subject matter with respect to which the
Attorney General requested the appointment of indepen-
dent 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 prose-
cute federal crimes (other than those classified as Class
B or C misdemeanors or infractions) that may arise out
of the above described matter, including perjury, ob-
struction of justice, destruction of evidence, and intimi-
dation of witnesses.
Thereafter, IC Smaltz proceeded to conduct the investiga-
tion pursuant to our order and to additional referrals initiated
by the Attorney General. In early 1996, IC Smaltz applied
directly to the Court for a referral of a related matter
pursuant to s 594(e) of the Act. After consideration of the
application and the Attorney General's opposition, we granted
that application for reasons set forth in an opinion published
as In Re Espy, 80 F.3d 501 (D.C. Cir., Spec. Div. 1996). In
the matter now before us, IC Smaltz makes a new application
setting forth, as in the prior one, his view that this new
referral is appropriate because he has "uncovered evidence of
other serious violations of law by Secretary Espy and others
close to him," which "are related to the Independent Coun-
sel's prosecutorial jurisdiction, as framed by the Special Divi-
sion's order of appointment, but not specifically mentioned in
his order of appointment." Again, the Attorney General has
filed opposition.
Upon reviewing the application and the opposition of the
Attorney General, we conclude that in the present case the
Independent Counsel has not met his burden of establishing
that the allegations as to which he seeks further referral are
sufficiently demonstrably related to the initial grant of juris-
diction to warrant our order of referral in the face of the
opposition of the Attorney General. Therefore, for the rea-
sons more fully set forth hereinafter, we must deny this
application.
DISCUSSION
A. Governing Principles
Section 594(e) of the Act provides:
An independent counsel may ask the Attorney General or
the division of the court to refer to the independent
counsel matters related to the independent counsel's
prosecutorial jurisdiction, and the Attorney General or
the division of the court, as the case may be, may refer
such matters. If the Attorney General refers a matter to
an independent counsel on the Attorney General's own
initiative, the independent counsel may accept such refer-
ral if the matter relates to the independent counsel's
prosecutorial jurisdiction. If the Attorney General re-
fers any matter to the independent counsel pursuant to
the independent counsel's request, or if the independent
counsel accepts a referral made by the Attorney General
on the Attorney General's own initiative, the independent
counsel shall so notify the division of the court.
As we have previously noted, "section 594(e) gives an inde-
pendent counsel a choice between asking the Attorney Gener-
al or the special division for referral of a related matter and
further states that either the Attorney General or the court
may refer such matters." In Re Espy, 80 F.3d at 504. In
Espy we held, for reasons more fully set forth therein, that
this language, under appropriate circumstances, permitted
the division of the court to refer related matters "to an
independent counsel without the concurrence of the Attorney
General," id. at 506, and we did so even in the face of her
opposition. However, we further held that our power to
make such referral is much more limited than the broad
referral power of the Attorney General.
More specifically, we determined that the boundaries of our
power were delineated in Morrison v. Olson, 487 U.S. 654(1988). The Supreme Court reminded us in that decision,
"constitutional difficulties ... arise when executive duties of a
non-judicial nature are imposed on judges holding office
under Article III of the Constitution." In Re Espy, at 507;
see also Buckley v. Valeo, 424 U.S. 1 (1976). Thus, we held
that the court may make referrals to the independent counsel
absent the concurrence of the Attorney General only where
the effect of the referral is to "interpret[ ], but not expand[ ],
the independent counsel's original prosecutorial jurisdic-
tion...." In Re Espy, at 507. Otherwise put, a court
ordered referral is available "to make explicit the indepen-
dent counsel's jurisdiction over a matter that was implicitly
included in the original grant of prosecutorial jurisdiction."
Id.In opposing IC Smaltz's present application, the Attorney
General argues that the new referral sought by IC Smaltz
exceeds our constitutionally limited authority. We agree.
B. The Current Application
We do not think it proper to set forth in this published
opinion the full details of heretofore untested allegations of
criminal activity on the part of Espy and others. Nonethe-
less, we are able to explain our reasons based on the argu-
ments advanced by the Attorney General without making
unwarranted disclosure of those allegations.
In the order appointing the independent counsel, we out-
lined his core jurisdiction as the authority
to investigate ... whether [Secretary Espy] has commit-
ted a violation of any federal criminal law ... relating in
any way to the acceptance of gifts by him from organiza-
tions or individuals with business pending before the
Department of Agriculture.
In addition, the order gave IC Smaltz authority
to investigate other allegations or evidence of violation of
any federal criminal law ... by any organization or
individual developed during the Independent Counsel's
investigation ... and connected with or arising out of
that investigation,
and
to 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.
Finally, the order gave IC Smaltz authority
to fully investigate and prosecute ... all matters and
individuals whose acts may be related to [the] subject
matter [of his appointment], inclusive of authority to
investigate and prosecute federal crimes ... that may
arise out of the above described matter, including perju-
ry, obstruction of justice, destruction of evidence, and
intimidation of witnesses.
In the application before us the Independent Counsel raises
allegations concerning criminal conduct on the part of Secre-
tary Espy and others in violation of other criminal statutes
outlawing a different category of conduct and occurring on
different occasions than those set forth in the grant of
jurisdiction. In reviewing the prior application, we held that
we could constitutionally refer new matters to an independent
counsel only where such new matters are "demonstrably
related to the factual circumstances underlying the Attorney
General's original investigation and request for appointment
of an independent counsel." In Re Espy, at 508; see also
United States v. Tucker, 78 F.3d 1313, 1321 (8th Cir. 1996).
While the Independent Counsel advances the proposition that
the matters are related because of the common prospective
subject (Espy), the common concern for misconduct by a high
official and the potential presence of eight unnamed common
witnesses, we cannot, given our constitutionally delineated
authority, conclude that the power to investigate these other-
wise unrelated allegations is implicit in the original grant of
authority.
As the Attorney General argues, in her opposition, the
original grant of authority rested on allegations that Secre-
tary Espy had accepted gifts from organizations and individu-
als with business pending before the Department of Agricul-
ture. The special division appointed Smaltz to investigate
whether the Secretary committed violations of federal crimi-
nal laws relating to such acceptance of gifts. The facts
alleged in the present application do not involve any alleged
misuse of the office of Secretary of Agriculture by Espy, any
acceptance of payments or gifts from persons having business
with that Department, or any similar pattern of conduct.
We therefore agree with the Attorney General that the
current application seeks an appointment beyond the authori-
ty of this court.
CONCLUSION
For the reasons set forth above, we conclude that this court
lacks the authority to grant the referral sought by Indepen-
dent Counsel Smaltz over the opposition of the Attorney
General. We therefore deny the application by way of the
attached order.