UNITED STATES of America, Appellee, v. SUN-DIAMOND GROWERS OF CALIFORNIA, Appellant.
Before: WILLIAMS, HENDERSON and TATEL, Circuit Judges. Eric W. Bloom, Washington, DC, argued the cause for appellant. With him on the briefs were Richard A. Hibey, Michael K. Atkinson and Charles B. Klein. Theodore S. Greenberg, Deputy Independent Counsel, Alexandria, VA, argued the cause for appellee. With him on the briefs were Donald C. Smaltz, Independent Counsel, Los Angeles, CA, and Charles M. Kagay, Chief Appellate Counsel, San Francisco, CA. Carter G. Phillips and Griffith L. Green, Washington, DC, were on the brief for amicus curiae American League of Lobbyists.
Sun-Diamond is a large agricultural cooperative owned by individual member cooperatives including Diamond Walnut Growers, Sun-Maid Growers of California, Sunsweet Growers, Valley Fig Growers, and Hazelnut Growers of Oregon. It came within the sights of an independent counsel, Donald C. Smaltz, who was responsible for investigating allegations of unlawful activity by former Secretary of Agriculture Mike Espy. The independent counsel charged Sun-Diamond with making illegal gifts to Espy, committing wire fraud, and making illegal campaign contributions.
Linking Sun-Diamond and Espy was the figure of Richard Douglas. As Sun-Diamond's vice president for corporate affairs, Douglas was responsible for (among other things) representing the interests of the corporation and its member cooperatives in Washington. Given Sun-Diamond's business, the Department of Agriculture (“USDA”) was naturally part of his bailiwick. According to performance evaluations signed by Sun-Diamond's president, Douglas was a diligent and able representative. He once described his approach to lobbying by paraphrasing Lord Palmerston: “We have no permanent friends or permanent enemies, only a permanent interest in Sun-Diamond Growers of California.” Permanent friends aside, he had a long-time friend in Mike Espy-the two had gone to college together at Howard University and had stayed close in the years since.
The crimes charged to Sun-Diamond grow out of two largely independent stories. One involves illegal gratuities given to Espy while he was Secretary of Agriculture, the other wire fraud and illegal contributions to the congressional campaign of the Secretary's brother, Henry Espy. We save the recitation of facts for the discussion of the distinct legal issues raised by each story.
Sun-Diamond argues that under the facts alleged and proven it could not properly be found guilty of any of the offenses, and, as to the illegal gratuities, that the trial court's charge allowed the jury to convict on a theory precluded by the statute. We disagree with Sun-Diamond's claims of entitlement to dismissal of the indictment and to acquittal, but we agree that the jury charge on the gratuity counts was error and requires a remand for a new trial. Sun-Diamond also attacks the sentence, saying that the trial judge, having increased the offense level by eight for Espy's high-level status as required by the Guidelines, wrongly bumped it up another two levels on the theory that the Guidelines inadequately took that status into account. It also objects to the trial court's imposition of probationary conditions on Sun-Diamond's member cooperatives, who were neither defendants nor agents of the defendant. We agree with Sun-Diamond on both sentencing points.
The key dispute here is over how close a link the government must show between Sun-Diamond's gifts and official acts that the Secretary of Agriculture performed or might perform. The indictment detailed two specific issues on which Sun-Diamond had a clear interest in favorable action by the Secretary. The first was the market promotion program (“MPP”), a grant fund administered by USDA and designed to prop up U.S. agricultural exports. See 7 U.S.C. § 5623. The Secretary of Agriculture was authorized to allocate MPP money to trade organizations like Sun-Diamond, who would in turn use it to defray overseas marketing expenses. According to the independent counsel, between 1990 and 1995 the Sun-Diamond member cooperatives received $23.9 million from MPP. In August 1993 Congress enacted budget legislation requiring the Secretary to give preference to “small-sized entities” in disbursing MPP funds. Omnibus Budget Reconciliation Act of 1993, Pub.L. No. 103-66, § 1302(b)(2)(A), 107 Stat. 312, 331 (1993). Sun-Diamond and its members were hardly mom-and-pop organizations-they reported net sales of $648 million for fiscal year 1993-but many of their constituent growers were quite modest in size. Sun-Diamond therefore wanted the Secretary to adopt a regulatory definition of “small-sized entities” that would include cooperatives such as its members.
Sun-Diamond also took an interest in federal regulation of methyl bromide, a pesticide used by some of the growers who belonged to its member cooperatives. In late 1992 the Environmental Protection Agency began review of a proposal to phase out the use of the chemical in the United States because of its potential to contribute to ozone depletion. Although the methyl bromide issue was not technically before USDA, a rational jury could conclude from the trial evidence that Sun-Diamond wanted Espy to help persuade EPA to delay or reject the proposed phase-out.
Count I of the indictment charged the company with giving Espy (via Douglas) around $5,900 in illegal gratuities: tickets to the 1993 U.S. Open Tennis Tournament worth $2,295, luggage worth $2,427, meals worth $665, and a framed print and crystal bowl worth $524.1 The indictment further alleged that Sun-Diamond reimbursed Douglas for these outlays, treating them as business expenses.
Sun-Diamond challenges Count I, asserting that the gratuity statute, 18 U.S.C. § 201(c)(1)(A), requires the government to prove a nexus between each unauthorized gift and some specifically identified official act-performed or hoped to be performed-for which the gift was given. Because the indictment failed to allege any such one-to-one relationship, contends Sun-Diamond, the district court erred in denying its motion to dismiss Count I. See United States v. Sun-Diamond Growers of California, 941 F.Supp. 1262 (D.D.C.1996) (denying motion to dismiss); United States v. Sun-Diamond Growers of California, 964 F.Supp. 486 (D.D.C.1997) (denying renewed motion for acquittal). In a narrower variation on this argument, Sun-Diamond also challenges the jury instructions, saying that they impermissibly allowed the jury to convict if it found that Sun-Diamond gave Secretary Espy things of value merely in recognition of his official position, regardless of official acts that might have supplied the motivation. We reject Sun-Diamond's broader argument but agree with its challenge to the jury instructions, and it is with that challenge that we begin.
Whoever ․ otherwise than as 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 both.
18 U.S.C. § 201(c)(1)(A) (emphasis added).
The statute defines an “official act” as “any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official's official capacity, or in such official's place of trust or profit.” 18 U.S.C. § 201(a)(3).
[T]he government must prove that Sun-Diamond Growers of California, acting through its senior vice president for corporate affairs, Richard Douglas, and knowingly and willingly gave the gratuities, at least in part, because of the Secretary's position in appreciation of Sun-Diamond Growers of California's relationship with him as a public official or in anticipation of the continuation of its relationship with him as a public official. The government need not prove that the alleged gratuity was linked to a specific or identifiable official act or any act at all.
The bribery section makes necessary an explicit quid pro quo which need not exist if only an illegal gratuity is involved; 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 produced because of the official act.
Id. at 72 (emphasis added). As this passage makes tolerably clear, to say that the gratuity provision lacks a quid pro quo requirement is not to read the “official act” language out of the statute. It is only to say that, in contrast to bribery, the gratuity and the official act need not each motivate the other. But the gratuity statute by its terms does still require at least a unidirectional relationship-the gift must be “for or because of” the act.
The relation may be simply one of reward. “As the word ‘gratuity’ implies, the intent most often associated with the offense is the intent to ‘reward’ an official for an act taken in the past or to be taken in the future.” United States v. Sawyer, 85 F.3d 713, 730 (1st Cir.1996) (construing virtually identical Massachusetts gratuity statute). Even in such a case, the giver presumably hopes that his gratuity will affect the recipient's future conduct-and this was undoubtedly the concern that motivated Congress to bring rewards for past acts within the coverage of the statute. But, in contrast to bribery, it is enough under the gratuity statute if the defendant gives an unpromised benefit for a past governmental favor. And, whatever degree of intent to influence may be necessary for a bribe, a gift looking to future acts can be an unlawful gratuity where the giver is motivated simply by the desire to increase the likelihood of one or more specific, favorable acts. In summary, as we explained in Brewster, “under the gratuity section, ‘otherwise than as provided by law ․ for or because of any official act’ carries the concept of the official act being done anyway, but the payment only being made because of a specifically identified act.” 506 F.2d at 82 (emphasis added).
The independent counsel appears to accept this analysis of Brewster, but claims that in that decision we restricted application of the official act requirement to cases involving elected officials or candidates for elective office. Indeed, Brewster was a senator, and we noted that in cases involving elected officials the official act requirement served the important function of distinguishing illegal gratuities from ordinary campaign contributions. See id. at 73 n. 26, 81. But in a footnote we postponed the question of non-elected officials to another day, distinguishing and declining to express ultimate disagreement with United States v. Umans, 368 F.2d 725 (2d Cir.1966), a decision that dispensed altogether with the intent requirement in a case involving gratuities offered to I.R.S. agents. Brewster, 506 at 73 n. 26.
Even assuming the footnote could be read as suggesting a readiness to jettison the intent requirement in cases involving appointed officials, we disappointed any such expectation eight years later by reaffirming the official act requirement in United States v. Campbell, 684 F.2d 141 (D.C.Cir.1982). Campbell concerned a Superior Court judge who received free moving services from a trucking firm that he had treated remarkably lightly, issuing nominal or suspended sentences on over 1,000 traffic tickets. We approved a jury charge requiring “that the alleged gratuities be given and received ‘knowingly and willingly,’ and ‘for or because of an official act.’ ” Id. at 150 (emphasis added). To be sure, the attack in Campbell came from the defendants, who claimed a right to an even more restrictive charge. But Campbell cannot possibly be said to have stripped the statute of its “for or because of” requirement.
A detail from that case underscores how we have refused to allow the official act requirement to be satisfied by some vague hope of inducing warm feelings toward the donor. Campbell had served as Assistant Corporation Counsel for the District of Columbia before becoming a judge in 1973, and was reputed to have been “sympathetic to trucking interests” during that time. Id. at 149 n. 13. Yet, responding to a somewhat unclear claim that the jury might have convicted for uncharged prior acts, we noted that “[i]t is not even clear which ‘acts' of Robert Campbell could have been the basis for [the trucking company's] gratuities prior to 1973, because ‘sympathy to trucking interests' does not constitute an official act.” Id. at 149 n. 14.3 Here, too, if Douglas furnished Espy with gifts merely to win his generalized sympathy for Sun-Diamond, those gifts would not be illegal gratuities, unless the jury could find that Douglas sought this generalized sympathy to influence Espy to perform one or more official acts sometime in the future.
The independent counsel points to United States v. Secord, 726 F.Supp. 845, 847 (D.D.C.1989), as well as several decisions by other courts of appeals apparently holding that gifts motivated solely by the recipient's official position may be illegal gratuities. See United States v. Evans, 572 F.2d 455, 480 (5th Cir.1978); United States v. Standefer, 610 F.2d 1076, 1080 (3d Cir.1979) (en banc);5 Umans, 368 F.2d at 730; United States v. Bustamante, 45 F.3d 933, 940 (5th Cir.1995); cf. United States v. Alessio, 528 F.2d 1079, 1082 (9th Cir.1976) (suggesting that donee's ability to use his position for donor's benefit was enough to satisfy the official act requirement). These decisions appear to leap from the gratuity statute's lack of a reciprocal quid pro quo requirement to an assumption that it has dispensed with any need to show intent focused on an official act or acts. Thus, the court in Bustamante says, “Generally, no proof of a quid pro quo is required; it is sufficient for the government to show that the defendant was given the gratuity simply because he held public office.” 45 F.3d at 940. Any such leap disregards the explicit language of the statute and contradicts Brewster and Campbell. Other out-of-circuit cases seem to take the official act requirement more seriously. See, e.g., United States v. Muldoon, 931 F.2d 282, 287 (4th Cir.1991) (“an illegal gratuity is a payment made for an act by the recipient that might have been done without any payment”) (citing Brewster ); cf. Sawyer, 85 F.3d at 735-36 (construing virtually identical Massachusetts gratuity statute).
Finally, the independent counsel asserts that in United States v. Baird, 29 F.3d 647 (D.C.Cir.1994), we embraced his broad interpretation of the gratuity statute. The question in Baird was whether the conflict of interest statute, 18 U.S.C. § 203(a), requires the government to prove that a defendant knew the statute covered him. We held that the clause “otherwise than as provided by law,” which appears both in § 203(a) and in § 201(c) (then codified at §§ 201(f) and (g)), did not embody such a scienter requirement; rather, it merely required a showing that the public official received money to which he was not lawfully entitled. Id. at 652. Although the Baird opinion cited approvingly to both Evans and Standefer, see id., it did not address directly the “for or because of any official act” language-doubtless because the conflict of interest statute at issue contained no such language.
Given that the “for or because of any official act” language in § 201(c)(1)(A) means what it says, the jury instructions invited the jury to convict on materially less evidence than the statute demands-evidence of gifts driven simply by Espy's official position. The difference may not seem very great, for whenever a donor has matters actually or potentially pending before his donee, gifts motivated by the latter's position will usually also be motivated by a desire to reward or elicit favorable official action. But the terms of the statute require a finding that the gifts were motivated by more than merely the giver's desire to ingratiate himself with the official generally, or to celebrate the latter's status.
At the same time, we reject Sun-Diamond's broad attack on the indictment. Again Campbell controls. Campbell argued, much as Sun-Diamond does here, that the jury should have been required “to find that the gratuity was conferred with ‘specific knowledge’ of ‘a definite official action for which compensation was intended.’ ” 684 F.2d at 149. We rejected that argument, holding that it was sufficient for the jury to find that the trucking company had provided free services to Campbell because it believed the judge had been, or would later be, “generally lenient” in dealing with the company's voluminous traffic citations. Id. at 149-50. The government, we held, was not required to show that any particular free service provided to Campbell was earmarked for any particular ticket or tickets; leniency in a multitude of specific acts was enough. That an official has an abundance of relevant matters on his plate should not insulate him or his benefactors from the gratuity statute-as long as the jury is required to find the requisite intent to reward past favorable acts or to make future ones more likely.
Sun-Diamond was found guilty on Counts III and IV of committing wire fraud in violation of 18 U.S.C. §§ 1343 & 1346, and on Counts V through IX of violating the Federal Election Campaign Act, 2 U.S.C. §§ 441b(a) & 441f (“FECA”). Both sets of convictions flow from a scheme of Richard Douglas and James H. Lake to help repay the debts of the failed congressional campaign of Mike Espy's brother Henry. The following facts about the scheme come from the testimony of Lake, who was granted immunity by prosecutors in exchange for his cooperation.
Lake was one of the founding partners of a Washington based firm, Robinson Lake Sawyer & Miller (“RLSM”), which handled communications and public relations matters for Sun-Diamond.7 Sun-Diamond retained RLSM for a fee of $20,000 a month; Douglas oversaw Sun-Diamond's dealings with RLSM and maintained his own office there. RLSM was a wholly-owned subsidiary of Bozell Worldwide, Inc. (“Bozell”).
After Mike Espy became Secretary of Agriculture, Henry Espy unsuccessfully pursued election to his brother's vacant seat in Congress, building up a sizable campaign debt in the process. In February 1994 Douglas left a telephone message at Lake's office-a crucial act for jurisdiction over one of the wire fraud counts. When Lake contacted Douglas, he learned that Secretary Espy had asked Douglas for help in retiring his brother's campaign debt. Lake immediately offered to donate $1,000, the maximum permissible individual contribution. Douglas replied that he had to raise at least $5,000 fast, and that he needed Lake's help. He then proposed a way around the campaign finance restrictions. If Lake would get five RLSM employees (including Lake himself) to write a check for $1,000 each, Douglas would find a way for Sun-Diamond to reimburse them all. Lake knew the scheme was illegal-corporations are forbidden to make contributions “in connection with any election” for Congress, 2 U.S.C. § 441b(a), and no one may make a campaign contribution in the name of another person, 2 U.S.C. § 441f-but agreed to participate anyway. Lake testified that no one else at RLSM or Bozell knew about the plan.
Lake wrote a $1,000 check in his own name and then approached the four RLSM employees identified by Douglas. Three of them agreed to pay up. (A fourth-presumably suspicious about the notion of a reimbursable campaign contribution-declined.) Lake then passed the checks worth $4,000 to Douglas, who deposited them in a “Henry Espy for Congress” account he had opened.
As the vehicle for reimbursement, Douglas settled on the Joint Center Dinner, an annual benefit for which RLSM and Lake had in the past routinely bought tickets on Sun-Diamond's behalf. Lake's staff prepared an internal RLSM document authorizing reimbursement to Lake for his supposed purchase of tickets to the dinner in the amount of $5,000 (even though he had raised only $4,000 for Henry Espy). The same document became part of the monthly invoice sent to Sun-Diamond, billing the client $5,000 for the fictitious dinner attendance on top of its $20,000 monthly retainer and other expenses. Lake received a $5,000 reimbursement check from Bozell, which he cashed and used to pay back the three other individual contributors (apparently pocketing the extra $1,000 for himself). Douglas, as part of his normal duties at Sun-Diamond, approved the payment to RLSM, which eventually went through. The net result: a $5,000 expenditure by Sun-Diamond, $4,000 of which went into Henry Espy's campaign coffers and $1,000 into James H. Lake's pocket.8 The independent counsel charged that the scheme worked a fraud on Bozell and RLSM, depriving the former (albeit temporarily) of $5,000, and depriving the latter of the “honest services” of its agent Lake under 18 U.S.C. § 1346. The jury convicted, evidently convinced that at least one such deprivation occurred. The jury also found Sun-Diamond guilty of making illegal campaign contributions in violation of FECA, 2 U.S.C. §§ 441b(a) & 441f.
As a threshold matter, Sun-Diamond raises a challenge which it says goes equally to the wire fraud and FECA counts. Richard Douglas's campaign contribution scheme cannot be attributed to it, Sun-Diamond argues, because Douglas was not acting with an intent to benefit the corporation. It is true, as the district court instructed the jury in this case, that an agent's acts will not be imputed to the principal in a criminal case unless the agent acts with the intent to benefit the principal.9 Here, Sun-Diamond says, Douglas's scheme was designed to-and did in fact-defraud his employer, not benefit it. In this circumstance, it strenuously argues, there can be no imputation: “[T]o establish precedent holding a principal criminally liable for the acts of an agent who defrauds and deceives the principal while pursuing matters within his self-interest merely because the agent's conduct may provide some incidental benefit to the principal serves to punish innocent principals with no countervailing policy justifications.” Appellant's Reply Br. at 16 n.9.
This argument has considerable intuitive appeal-Sun-Diamond does look more like a victim than a perpetrator, at least on the fraud charges. The facts in the record, however-that Douglas hid the illegal contribution scheme from others at the company and used company funds to accomplish it-do not preclude a valid finding that he undertook the scheme to benefit Sun-Diamond. Part of Douglas's job was to cultivate his, and Sun-Diamond's, relationship with Secretary Espy. By responding to the Secretary's request to help his brother, Douglas may have been acting out of pure friendship, but the jury was entitled to conclude that he was acting instead, or also, with an intent (however befuddled) to further the interests of his employer. The scheme came at some cost to Sun-Diamond but it also promised some benefit. See, e.g., United States v. Automated Medical Laboratories, Inc., 770 F.2d 399, 406-07 (4th Cir.1985) (agent's conduct which is actually or potentially detrimental to corporation may nonetheless be imputed to corporation in criminal case if motivated at least in part by intent to benefit it); cf. Local 1814, International Longshoremen's Association, AFL-CIO v. NLRB, 735 F.2d 1384, 1395 (D.C.Cir.1984) (“[T]he acts of an agent motivated partly by self-interest-even where self-interest is the predominant motive-lie within the scope of employment so long as the agent is actuated by the principal's business purposes ‘to any appreciable extent.’ ”) (quoting Restatement (Second) of Agency § 236 & comment b (1957)). Where there is adequate evidence for imputation (as here), the only thing that keeps deceived corporations from being indicted for the acts of their employee-deceivers is not some fixed rule of law or logic but simply the sound exercise of prosecutorial discretion.
And the answer to Sun-Diamond's claim of the absence of any “countervailing policy justification” is simply the justification usually offered in support of holding corporate principals liable for the illegal acts of their agents: to increase incentives for corporations to monitor and prevent illegal employee conduct. See Kevin B. Huff, Note, The Role of Corporate Compliance Programs in Determining Corporate Criminal Liability: A Suggested Approach, 96 Colum. L.Rev. 1252, 1263 & n.49 (1996). One might well question this justification-and scholars have. See, e.g., Daniel R. Fischel and Alan O. Sykes, Corporate Crime, 25 J. Legal Stud. 319 (1996) (arguing that corporate criminal liability spurs excessive monitoring and litigation costs and should be discarded in favor of civil liability); Jennifer Arlen, The Potentially Perverse Effects of Corporate Criminal Liability, 23 J. Legal Stud. 833 (1994) (arguing that strict corporate liability may deter corporate monitoring by making criminal exposure more likely, so that its imposition may increase the likelihood of crime). Moreover, the justification may be at its weakest in cases like this one, where the offending employee breaches a duty of honesty to the very corporation whose goals he aims to advance. In any event, Sun-Diamond's argument here, whatever its merit as an issue of policy, has no real grounding in the relevant statutes. And Sun-Diamond does not invoke the Constitution, which in any event would require either an overruling of the Supreme Court's rejection of a due process attack on corporate liability, New York Cent. & Hudson River R.R. Co. v. United States, 212 U.S. 481, 29 S.Ct. 304, 53 L.Ed. 613 (1909), or the development of some new theory.
Sun-Diamond also raises a narrower objection concerning imputation, one which goes only to the fraud counts. To the extent Douglas's conduct is to be imputed to his employer, argues Sun-Diamond, then so must Lake's be imputed to his employers (RLSM and Bozell). Both men occupied high-level management positions in their respective firms, and both men's firms sought to establish and maintain good relations with Secretary Espy. If Douglas's knowledge can be imputed to Sun-Diamond to hold it responsible for Douglas's acts, then Lake's must be imputed to his employers, RLSM and Bozell, and they cannot be victims.
Even assuming the evidence showed the balance of private and corporate purpose in Douglas's and Lake's motivation to be identical, Sun-Diamond's argument rests on a faulty assumption-that the imputation rules must be the same on both the perpetrator and victim sides. They need not be, and indeed are not. Imputation is a legal fiction designed to assist in the allocation of liability, not a literal description of the state of a principal's knowledge. The law imputes the wrongdoer's conduct to the corporation in order to encourage monitoring, but it is not at all clear that imputation on the other side of the equation would be useful in eliciting additional caution on the part of would-be fraud victims. A rule that makes victim wariness a condition of criminally punishing the perpetrator-unlike, say, a rule of contributory negligence in tort-might not inspire much extra precaution in potential victims. However much they may benefit from the criminalization of fraud generally, potential victims (who have many incentives to avoid being gulled, independent of the criminal law) seem unlikely to step up their precautions just to increase the ex ante chances that their deceivers will face criminal sanctions-or so Congress could reasonably conclude. Thus, when an individual is swindled, the offender does not escape mail or wire fraud liability just because the victim was unwary, or even “gullible.” See United States v. Brien, 617 F.2d 299, 311 (1st Cir.1980). Indeed, Congress's adoption of 18 U.S.C. § 1346, specifying that the term “scheme or artifice to defraud,” as used in various federal criminal fraud statutes, should include schemes to deprive a principal “of the intangible right of honest services,” is hard to square with an imputation rule on the victim side as broad as the one governing corporate criminal responsibility.
We pause briefly over a final threshold issue before addressing the core of Sun-Diamond's challenge to the fraud convictions. The wire fraud statute forbids the use of the interstate telephone system “for the purpose of executing” a scheme or artifice to defraud. 18 U.S.C. § 1343. Sun-Diamond says the telephone message left by Douglas for Lake preceded their joint concoction of the campaign contribution scheme and thus could not, as a matter of law, have furthered the scheme.10 There was, however, ample evidence from which the jury could find that Douglas already had some sort of fraudulent plan in mind when he placed the initial call and left the message. In other words, the jury could have found that Douglas used the telephone system “prior to, and as one step toward, the receipt of the fruits of the fraud,” Kann v. United States, 323 U.S. 88, 94, 65 S.Ct. 148, 151, 89 L.Ed. 88 (1944), placing the case within the coverage of § 1343.
Sun-Diamond's core challenge to the wire fraud counts raises more serious concerns. The district court charged the jury on two alternative routes to fraud liability. It could convict, said the court, if it found “that Sun-Diamond Growers of California devised a scheme or artifice to defraud with one or both [of] the two following objectives. One, to obtain even temporarily $5,000 from Bozell, Inc. by means of false pretense and representations in order to make an illegal corporate campaign contribution to Henry Espy for Congress Committee. Two, to deprive Bozell, Inc. and [RLSM] of the honest, conscientious, faithful, loyal, disinterested and unbiased services of its employee, James Lake.” Because the jury charge was phrased in the disjunctive we must examine the legal sufficiency of each basis for liability, to ensure that the jury did not convict on a legally impermissible ground. See Griffin v. United States, 502 U.S. 46, 59, 112 S.Ct. 466, 474, 116 L.Ed.2d 371 (1991) (general verdict based on alternative grounds of liability will be upheld as long as both grounds are legally adequate, even if one is factually inadequate).
As for the first possible objective, we admit that it is not immediately obvious how the contribution scheme could have been designed to deprive Bozell even temporarily of its money or property. Sun-Diamond, through Douglas, caused Bozell to make a routine advance of $5,000 with every expectation that Sun-Diamond would provide prompt reimbursement, and in fact it reimbursed the expense promptly and in full. As the district court correctly noted in the sentencing phase, Bozell was deprived only of the time value of the sum advanced, a deprivation it surely considered negligible judging from the routine and informal nature of the transaction.
The second alternative ground of liability was that Sun-Diamond defrauded RLSM of the honest services of its agent, James H. Lake, in violation of 18 U.S.C. § 1346. Congress enacted that provision in response to the Supreme Court's decision in McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987), which held that the mail fraud statute's coverage was limited to deprivations of property.12 Section 1346 says simply that “[f]or the purposes of this chapter, the term ‘scheme or artifice to defraud’ includes a scheme or artifice to deprive another of the intangible right of honest services.” 18 U.S.C. § 1346. The “honest services” theory has typically been used, both in cases up to McNally and again under § 1346, as a tool for prosecuting corrupt public officials who have deprived citizens of their right to honest representation. See United States v. Paradies, 98 F.3d 1266, 1283 n. 30 (11th Cir.1996) (collecting cases). But it has also been used, as here, to prosecute private citizens who defraud private entities. See, e.g., United States v. Lemire, 720 F.2d 1327 (D.C.Cir.1983); United States v. DeFries, 129 F.3d 1293, 1305-06 (D.C.Cir.1997); United States v. Jain, 93 F.3d 436 (8th Cir.1996); United States v. Frost, 125 F.3d 346 (6th Cir.1997); United States v. D'Amato, 39 F.3d 1249 (2d Cir.1994); United States v. Cochran, 109 F.3d 660 (10th Cir.1997); United States v. Gray, 96 F.3d 769 (5th Cir.1996).
In the private sector context, § 1346 poses special risks. Every material act of dishonesty by an employee deprives the employer of that worker's “honest services,” yet not every such act is converted into a federal crime by the mere use of the mails or interstate phone system. Aware of the risk that federal criminal liability could metastasize, we held in Lemire that “not every breach of a fiduciary duty works a criminal fraud.” Lemire, 720 F.2d at 1335, quoting United States v. George, 477 F.2d 508, 512 (7th Cir.1973). Rather, “[t]here must be a failure to disclose something which in the knowledge or contemplation of the employee poses an independent business risk to the employer.” Id. at 1337.13 Absent reasonably foreseeable economic harm, “[p]roof that the employer simply suffered only the loss of the loyalty and fidelity of the [employee] is insufficient to convict.” Frost, 125 F.3d at 368.
The independent counsel says that Douglas and Lake's fraudulent scheme threatened serious economic harm to RLSM, because disclosure of a name partner's fraudulent use of RLSM's offices to funnel illegal contributions to a political candidate would severely damage the firm's reputation. The district court agreed, 964 F.Supp. at 493-94. As Lake testified, the chief assets of a public relations firm are its legitimacy and credibility in the eyes of current and potential clients. Both stood to be undermined by Douglas and Lake's actions. There is no doubt that Douglas and Lake could have foreseen that their actions would cause substantial economic harm to RLSM once word of the scheme got out.
Sun-Diamond, however, says this is not enough. It contends that in the private sector context § 1346 and Lemire demand a showing that the defendant intended to cause economic harm to his victim, not merely that he could have reasonably foreseen such harm. Since the economic harm identified by the independent counsel flows exclusively from disclosure of the contribution scheme, and since Douglas surely did not intend for his scheme to be revealed (except possibly to Mike Espy, so that the Secretary's gratitude could be properly directed), Sun-Diamond reasons that it is free from liability under § 1346. In response to this argument, it will not do to cite “the presumption, common to the criminal and civil law, that a person intends the natural and foreseeable consequences of his voluntary actions.” Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 278, 99 S.Ct. 2282, 2295, 60 L.Ed.2d 870 (1979). Applying the presumption to the actual detection and revelation of an illegal scheme would threaten to turn the word “intent” inside out. Is a criminal who foresees his own capture thereby said to intend it? If so, are especially elusive criminals, whose apprehension is ex ante relatively unlikely, in a better legal position than clumsy ones?
Lemire, 720 F.2d at 1337 (emphasis added); see also United States v. Von Barta, 635 F.2d 999, 1005-06 n. 14 (2d Cir.1980) (relied on in Lemire). As we reaffirmed recently, “Lemire held that breaches of fiduciary duty are criminally fraudulent only when ‘accompanied by a misrepresentation or nondisclosure that is intended or is contemplated to deprive the person to whom the duty is owed of some legally significant benefit.’ ” DeFries, 129 F.3d at 1306, quoting Lemire, 720 F.2d at 1335 (emphasis added). See also Frost, 125 F.3d at 368 (holding that, in cases where employee is charged with defrauding private employer of his own honest services, “[t]he prosecution must prove that the employee intended to breach a fiduciary duty, and that the employee foresaw or reasonably should have foreseen that his employer might suffer an economic harm as a result of the breach.”) (emphasis added); D'Amato, 39 F.3d at 1257 (pre-§ 1346 case holding that misrepresentations amounting only to a deceit “must be coupled with a contemplated harm to the victim”).
Sun-Diamond challenges two aspects of its sentence: the district court's upward departure based on Espy's position as Secretary of Agriculture, and the imposition of reporting requirements on the member cooperatives. We agree with Sun-Diamond and reverse on both points.
District courts may make upward departures from the Sentencing Guidelines only if “there exists an aggravating ․ circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.” 18 U.S.C. § 3553(b); U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 5K2.0. We review district court determinations that a given factor is present in a particular case to a degree not adequately considered by the Commission only for abuse of discretion, because “[d]istrict courts have an institutional advantage over appellate courts in making these sorts of determinations, especially as they see so many more Guidelines cases than appellate courts do.” Koon v. United States, 518 U.S. 81, 98, 116 S.Ct. 2035, 2047, 135 L.Ed.2d 392 (1996). But whether a given factor could ever be a permissible basis for departure is a question of law which we address de novo. Id. Here, the issue is in a sense one of degree-how much authority and status might elevate a position above even the rank for which the Guidelines prescribe an eight-level hike-but it also poses the onetime issue of whether cabinet-level officers enjoy such lofty status, hardly the sort of fact-intensive issue calling for extreme deference.
[i]f the gratuity was given, or to be given, to an elected official or any official holding a high-level decisionmaking or sensitive position.
Id. The district court imposed both the two-level and the eight-level increase, bringing the offense level to 17. It then appended an additional two-level increase, finding that the Guidelines did not adequately take into account Espy's position as a cabinet-level official. This increase in offense level from 17 to 19 doubled Sun-Diamond's base fine from $250,000 to $500,000. U.S.S.G. § 8C2.4. The court then assigned Sun-Diamond a “culpability score” of 9 out of a possible 10, see id. § 8C2.5, a determination Sun-Diamond does not challenge here. This culpability score dictated a minimum multiplier of 1.8 and a maximum of 3.6, id. § 8C2.6, leading to an applicable fine range of $900,000 to $1,800,000, from which the court chose a figure in the “upper range”-$1,500,000.
The President has but one cabinet with select members who the court deems to be on a higher level with regard to the type of responsibility which is otherwise contemplated by the guidelines, and the Secretary of Agriculture, in fact, is tenth in the order of succession to the Office of the Presidency. That is not an insignificant fact, and as unlikely as it may be that the Secretary of Agriculture would assume the Presidency of the United States because circumstances would not normally present that opportunity, nevertheless, there is a reason for creating a pecking order to the position which many believe is the position of the most powerful person on the face of the earth.
In any event, the court [notes] for example that Secretary Espy administered a budget of $65 and one half billion, this figure represents 4.3 percent of the total federal budget. He's responsible for a great work force and makes decisions frequently that have a significant and broad and wide-ranging effect on the American population, and some might believe on the population of ․ other parts of the world.
As the Secretary of Agriculture obviously holds a “high-level decision-making or sensitive position,” it is clear that the district court rested its departure not on a finding that cabinet-level status was the kind of factor the Sentencing Commission failed to consider in formulating § 2C1.2, but on a belief that his position is so high-level that it represents an aggravating circumstance present to a degree not taken into account by the Commission.
This conclusion is at odds with the Sentencing Commission's explanation of § 2C1.2.15 The Application Notes explain that “ ‘Official holding a high-level decision-making or sensitive position’ includes, for example, prosecuting attorneys, judges, agency administrators, supervisory law enforcement officers, and other governmental officials with similar levels of responsibility.” U.S.S.G. § 2C1.2, App. Note 1. We do not think the Secretary of Agriculture holds a position that in level or sensitivity differs in any material degree from persons the Application Note explicitly says were within the Commission's contemplation.
Since the Secretary administers an agency, a straightforward reading of the Application Note strongly suggests that he falls within the “agency administrator” category. The independent counsel says that this term was meant to refer to lower-level program administrators, of which it says there are 85 or so within USDA alone, Appellee's Br. at 43 n.15, but never explains why we should assume the Sentencing Commission had such a limited category in mind. The Application Note expressly lists judges as the sort of high-level officials for which the eight-level departure is appropriate. Perhaps our perspective is skewed, but offering a gratuity to a life-tenured federal judge seems to us at least as culpable as offering one to a cabinet secretary-indeed, we suspect most citizens would consider the former a more troubling breach of public trust than the latter. To permit a two-level departure for the latter, when such a departure is specifically precluded for the former, appears illogical.
Nor is the district court's decision rescued by its observations about presidential succession. The Guideline includes elected officials without apparent regard to the loftiness or sensitivity of their positions, and the Application Note says nothing to suggest variation within the elected-official category. Thus it appears to sweep in officials ranging in rank from Representative to President. Even assuming that a case involving the President might present a sui generis situation warranting departure, Sun-Diamond points out that the Speaker of the House is second in line to the presidency after the Vice President, 3 U.S.C. § 19, and yet is also presumably taken into account by § 2C1.2 as an “elected official.” The independent counsel responds that “perhaps the Sentencing Commission did not take into consideration the position and power of the Speaker of the House when it drafted the bribery and gratuity guidelines.” Appellee's Br. at 45 n.16. Conceivably, but more likely the Commission meant, as it said, to lump all federal elected officials together, in contrast with other officials whose rank was seen to vary enough to require consideration of levels of responsibility. Similarly, the Attorney General-seventh in line to the presidency-seems to fit within the Application Note's “supervisory law enforcement officers” category. Though we need not, and do not, decide today the status of these officials with respect to § 2C1.2, their seeming inclusion argues strongly against the idea that the Sentencing Commission failed to take adequately into account the degree of responsibility of an official further down the line of presidential succession.
Moreover, the district court's approach makes one wonder how far one must go down the line of succession before one finally reaches the heartland of § 2C1.2. The Secretary of Agriculture is in fact ninth in the line of succession, 3 U.S.C. § 19, not tenth as the district court stated.16 This makes his connection to ultimate power just as attenuated as that of the anti-hero of “Kind Hearts and Coronets,” who had to murder eight Alec Guinnesses to become Duke of Chalfont. What of the Secretary of Health and Human Services, at number twelve in the queue, id., or the Secretary of Veterans Affairs, at seventeen, id.? Of course, questions of line-drawing are often difficult, and in the sentencing arena such questions are normally best resolved by the district courts on a case-by-case basis. Here, however, the factor invoked in support of departure-cabinet-level status-is not one that the district courts enjoy any comparative advantage in assessing, unlike such fine-grained, fact-bound circumstances as extreme psychological injury, see U.S.S.G. § 5K2.3, or victim misconduct, see id. § 5K2.10. We conclude that the two-level upward departure was impermissible.
Sun-Diamond also challenges the imposition of reporting requirements on its member cooperatives. The district court declared, as a condition of probation, that “Sun-Diamond and its members [sic] cooperatives shall provide quarterly submissions to the probation officer reporting all of the organization's expenditures related to all federal employees, office holders or candidates for federal office [including] any expenditure related [to] the procurement of any federal government contract, creation of a federal law or regulation, or the development of any federal policy.” These requirements were to continue in force for five years.
We recognize that the sentencing judge has broad discretion to establish conditions of probation. Lemire, 720 F.2d at 1352. But we know of no precedent for the imposition of probationary conditions on entities who are not defendants, nor even agents of defendants-the latter category problematic in its own right, but much more plausibly legitimate than the present case. Although the independent counsel paints Sun-Diamond as a mere alter ego of the cooperatives that own it, we are not persuaded. The member cooperatives have their own corporate identities, boards of directors, employees, assets and liabilities, as does Sun-Diamond. Their power to control Sun-Diamond seems no greater than the power of ordinary shareholders to control a corporation.
As the Ninth Circuit has explained, imposition of a condition on a third party exposes the defendant to revocation of probation for “violations” by persons not under his control. United States v. Sweeney, 914 F.2d 1260, 1263 (9th Cir.1990). Cf. Fiore v. United States, 696 F.2d 205, 208-09 (2d Cir.1982) (reversing condition of probation imposed on defendant who was president, secretary, sole stockholder and only full-time employee of corporate co-defendant, which had required him to pay fine imposed on corporation). And 18 U.S.C. § 3563, which enumerates mandatory and discretionary conditions of probation, specifies in every one of them the “defendant” as the person to be burdened. See Sweeney, 914 F.2d at 1263. As the member cooperatives were not made defendants and given an opportunity to be heard, they may not now be subjected to probation.
We reverse and remand for new trial on Count I; we affirm the convictions on Counts III through IX; and we vacate Sun-Diamond's sentence and remand for further proceedings consistent with this opinion.
1. Count II charged Sun-Diamond with paying $3,100 for Espy's girlfriend to accompany him to the International Nut Conference in Athens. The jury acquitted on this count.
2. Section 201(b)(1)(A) imposes criminal penalties upon:Whoever ․ directly or indirectly, corruptly gives, offers or promises anything of value to any public official or person who has been selected to be a public official, or offers or promises any public official or any person who has been selected to be a public official to give anything of value to any other person or entity, with intent ․ to influence any official act.Because Brewster involved the acceptance rather than the giving of gratuities and bribes, the court in fact focused on 18 U.S.C. § 201(c)(1) (1969) (covering receipt of bribes, now codified with minor differences in language at § 201(b)(2)(A)), and 18 U.S.C. § 201(g) (1969) (covering receipt of gratuities, now codified with minor differences in language at § 201(c)(1)(B)). The elements of the offense at issue here are the same, however, regardless of whether the defendant is the donor or donee, so Brewster stands as a controlling precedent for our case.
3. The independent counsel claims that these passages in Campbell turn on the notion that an Assistant Corporation Counsel is not in a position to perform official acts. The notion is false-under District law an Assistant Corporation Counsel may, for example, choose to prosecute (or not prosecute) traffic violations, D.C.Code §§ 23-101, 40-622. Perhaps because of its falsity, the notion is never mentioned by the Campbell court. Had the government charged Campbell with a pre-1973 decision not to prosecute the trucking company, rather than alleging mere “sympathy,” such a decision might well have constituted an official act sufficient to support a gratuity charge.
5. The independent counsel's briefs made no mention of Standefer, but in a petition for rehearing he notes that the Supreme Court, in affirming the judgment on others grounds, Standefer v. United States, 447 U.S. 10 (1980), said in a footnote that “the instructions to the jury on criminal intent” were “correct.” Id. at 14 n. 8. Standefer's briefs in the Supreme Court and the Third Circuit's unpublished panel opinion, United States v. Standefer, 1979 WL 4863 (3d Cir.1979), however, make clear that the defendant's challenge was to the absence of a quid pro quo requirement, and to the trial court's refusal to instruct the jury that the defendant's gifts to an I.R.S. agent had not in fact resulted in the favorable audit sought by the donor. Id. at *4-8. In any event, the instructions in Standefer, reprinted in relevant part in the Third Circuit's panel opinion, id. at *5, *6, were far narrower than the charge in this case, repeatedly emphasizing the requirement that the gifts be given for or because of tax audits performed by the donee.
6. We reject Sun-Diamond's contention that the gratuity statute is unconstitutionally vague as applied to its conduct. United States v. Campbell, 684 F.2d 141, 150 n. 17 (D.C.Cir.1982); cf. United States v. Brewster, 506 F.2d 62, 76-78 (D.C.Cir.1974).
7. At certain points in the record this firm is referred to by somewhat different names, such as “RLLM/SMG” (Robinson, Lake, Lerer, Montgomery/Sawyer, Miller Group). For simplicity we will refer to Lake's partnership as RLSM throughout.
8. In October 1995 RLSM terminated its relationship with Sun-Diamond and returned the $5,000 payment.
9. In a civil case, there may be no need to show that the agent acted to further the principal's interests-a showing of “apparent authority” is often enough. See American Society of Mechanical Engineers v. Hydrolevel Corp., 456 U.S. 556, 573-74, 102 S.Ct. 1935, 1946-47, 72 L.Ed.2d 330 (1982) (private antitrust action).
10. This challenge goes only to Count III. The wire communication underlying Count IV was the electronic transmission of the $5,000 billable expense report from RLSM to Bozell.
11. Sun-Diamond also offers another reason why Douglas could not have intended to defraud Bozell. According to Sun-Diamond, Douglas anticipated that Sun-Diamond would reimburse Lake directly, or at least that Lake's employer would await payment from Sun-Diamond before reimbursing Lake, thus avoiding even a temporary deprivation. (In fact Sun-Diamond contends, implausibly, that there was no evidence from which a jury could infer that Douglas even knew of Bozell's existence.) Given Douglas's experience with Sun-Diamond/RLSM billing practices, however, he could reasonably have foreseen the possibility that Lake would seek an advance from his employer or its parent company at the time he hatched the scheme.
12. The elements required for conviction under § 1341 (mail fraud) and § 1343 (wire fraud) are identical except for the means of communication. United States v. Lemire, 720 F.2d 1327, 1334-35 n. 6 (D.C.Cir.1983).
13. Lemire was a pre-§ 1346 decision, but Congress's evident intent in enacting that provision was to revive pre-McNally caselaw, at least with respect to the deprivation of honest services. See, e.g., Frost, 125 F.3d at 364 (“We therefore hold that § 1346 has restored the mail fraud statute to its pre-McNally scope, according to previous opinions interpreting the intangible right to honest services.”).
14. Sun-Diamond does not challenge the adequacy of the jury charge on the “honest services” theory of liability under §§ 1343 & 1346.
15. “In determining whether a circumstance was adequately taken into consideration the court shall consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission.” 18 U.S.C. § 3553(b).
16. The current Secretary of Agriculture, however, is in practical effect eighth in line, since Secretary of State Madeleine Albright, having been born abroad, is ineligible. See U.S. Const. art. II, § 1, cl. 5.


On Friday, July 13, the United Nations took steps towards completing an agreement focused on improving human rights for global migrants. The agreement, known as the Global Compact for Safe, Orderly and Regular Migration, was first adopted as an initiative at the United Nations General Assembly in New York in September 2016, and at the time was heavily favored by all 193 members. The first major goal was to protect the rights of refugees and migrants in ways such as assuring safe resettlement and helping them get access to employment and education. Since then, it has grown into a global compact that promises to improve the way governments handle migration, focusing in particular on the human rights of migrants. The agreement has been in development since April 2017 and was completed last Friday. It is expected to be formally adopted this December at a meeting in Marrakesh, Morocco.
The pact has garnered attention not only because it addresses an important global issue, but also because the United States is no longer involved in its negotiations. Although the U.S. had been part of the talks since the beginning and President Obama had been a strong supporter of the initial declaration, the Trump administration abruptly ended the United States’ involvement last December, indicating that the agreement would hinder its power to control its borders. Migrants rights advocates noted that the decision to withdraw appeared to reinforce the image of the Trump administration as isolationist. They cautioned that the refusal to participate was “shortsighted and counterproductive”. However, administration officials countered that its decision was merely a defense of American sovereignty and national security, not an unwillingness to cooperate with other countries. Still, the decision was celebrated by President Trump’s base as well as several conservative websites, many of whom have demanded stricter laws against immigration since the campaign trail.
The completion of the Global Compact comes in the midst of a major immigration crisis in the United States. The Trump administration has faced bipartisan uproar due to a policy set forth by the government in May 2018 that required DHS officials to separate asylum seekers from their children at the border. The policy was vehemently decried and has now been effectively ended by a federal judge. This lack of regard for the basic rights of migrants seems to confirm the initial fears of migrants rights advocates when the U.S. pulled out of the decision-making process. Back in December when the decision was first announced, Bill Frelick, an official at Human Rights Watch, said that the United States had demonstrated “a callous disregard for the lives of migrants and jaw-dropping irresponsibility toward the community of nations”. This comment was echoed by Kevin Appleby, the international migration policy direction at an immigration rights advocacy group, who observed that the Trump administration seemed to care more about the whims of its base “than working with the world on a pressing global issue”.
On June 26, 2018, the United States Supreme Court ended the great debate by ruling that President Trump’s travel ban is constitutional and within his power to implement. In September 2017, President Trump issued Proclamation No. 9645 after the first two versions of the travel ban were ruled unconstitutional for multiple reasons, most importantly being racial discrimination. Speculation is mounting as to the effects this decision will have on U.S. national security and foreign policy.
The current version suspends entry from certain individuals from Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen. Each country has varying degrees of suspension, meaning some countries are banned as immigrants and nonimmigrants, while others are just banned as immigrants but with multiple exceptions.
In a 5-4 decision, Chief Justice Roberts reasoned that the President lawfully exercised his power under §1182(f) of the Aliens and Nationality Act because the act conveys a large degree of deference to the President in such matters. It gives the President the power to decide whether and when to suspend entry whenever he finds that the entry of aliens would be detrimental to the national interest. In addressing the plaintiff’s racial animus argument, the majority stated that the issue they dealt with was the significance of the President’s alleged racial statements in reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility. The majority held that there is persuasive evidence that the ban has a legitimate grounding in national security concerns, apart from any religious hostility, and is therefore justified.
The U.S. judiciary already grants the U.S. government a large degree of deference in national security matters, but that appears to have increased even more. The case sets the precedent that public and political statements made by the President shall not outweigh the language and structure of the proclamation itself. While this principle exemplifies the judiciary’s responsibility to remain politically neutral, it could have national security and foreign policy ramifications. According to an amicus brief approved by 26 retired generals and admirals, the ban harms U.S. national security because it perpetuates hostility towards Muslims and Muslim majority countries. It could help increase anti-U.S. propaganda by terrorists within the countries on the list and undermine relationships with locals. Former national security and foreign policy officials wrote a separate amicus brief stating that the government has failed to produce any national security reason for the ban. The U.S. Supreme Court disagreed, as Congress designated these countries as posing national security threats in the past.
A major issue that has yet to be fully addressed is the impact this decision will have on refugees attempting to enter the U.S. Under the U.N. Convention and Protocol Relating to the Status of Refugees, signatory countries cannot turn away refugees who have a legitimate fear of persecution within their home country. According to Chris Boian, a spokesman for the U.N. refugee agency in the U.S., “refugees will still be admitted under the vigorous vetting requirements,” including those from countries on the travel ban list. So the decision itself will not affect the inflow of refugees, but combining it with the reduction in the number of refugees the U.S. will accept, the backlog of refugee cases, and the four month suspension of the U.S. refugee program, it appears there could be a moderate to severe effect.
Attorney General Jeff Sessions stated that this decision will allow the current President, and future ones, to protect the American people. Given the amount of deference granted to the President in matters such as this, the Attorney General’s statement appears true. But Justice Sotomayor foresees a darker result. In her dissent she equated this decision to the decision in Korematsu to detain Japanese-American citizens during WWII, implying that the amount of deference provides Presidents with ways to enact morally repugnant acts such as Korematsu. The exact effects remain to be seen, but this decision will either be celebrated in years to come, or haunt the U.S. Supreme Court.
 Trump v. Hawaii, No. 17-965, 2018 WL 3116337, slip op. at 2 (U.S. June 26, 2018).
 Griffiths, What it’s Like in the 7 Countries on Trump’s Travel Ban List, CNN Politics (June 27, 2018 6:32 A.M.) https://www.cnn.com/2018/06/27/politics/trump-travel-ban-countries-intl/index.html.
 Stottlemyer, Ex-Military, Intelligence, and Foreign Policy Officials: Travel Ban Harms National Security, JUST SECURITY (Apr. 4, 2018) https://www.justsecurity.org/54506/ex-military-intelligence-foreign-policy-officials-travel-ban-harms-national-security/.
 Trump v. Hawaii, No. 17-965, 2018 WL 3116337, slip op. at 3 (U.S. June 26, 2018).
 Amman, Supreme Court’s Nod to Travel Ban Heightens Refugee Worries, abcNEWS (June 27, 2018, 12:06 P.M.) https://abcnews.go.com/International/wireStory/supreme-court-nod-travel-ban-crushes-syria-refugees-56197209.
 Stohr, Supreme Court Upholds Trump Travel Ban, Giving President Win on Signature Issue, Bloomberg (June 26, 2018, 10:17 A.M.) https://www.bloomberg.com/news/articles/2018-06-26/trump-travel-ban-upheld-by-u-s-supreme-court-jivrzei4.
Family Separation at the Border: Running Afoul of International Law?
In April, the New York Times reported that U.S. immigration officials had separated more than 700 migrant children from adults claiming to be their parents at the U.S.-Mexico border. The policy was met with widespread criticism once revealed, with critics denouncing it as immoral, inhumane, and even unconstitutional. “It’s hard to conceive of a policy more horrific than intentionally separating children from their parents as a form of punishment,” Sen. Dianne Feinstein (D-Calif.) said in a statement. “This is not what the United States of America should be.” In yet another rebuke of the policy, a district judge in San Diego denied a motion last week to dismiss a class action lawsuit filed by the American Civil Liberties Union against U.S. Immigration and Customs Enforcement over the child separations.
Of these international agreements, the United States has only signed and ratified the ICCPR. However, the extent to which the principle of family unity features in international human rights documents suggests that the principle may be considered part of the canon of customary international law. While states have a legitimate authority to control the flow of immigrants and asylum-seekers over their borders, they also have a duty to honor their international human rights commitments.
“Governing Rule 8: Respect for Family Unity,” in Sohn, L. B., & Buergenthal, T. (Eds.). (1992, October). The movement of persons across borders. American Society of International Law.
Hathaway, James C. The rights of refugees under international law. Cambridge University Press, 2005.
Starr, S., & Brilmayer, L. (2003). Family separation as a violation of international law. Berkeley J. Int’l L., 21, 213.
Van Bueren, Geraldine. The international law on the rights of the child. Vol. 35. Martinus Nijhoff Publishers, 1998.
On June 11, Attorney General Jeff Sessions vacated a 2016 decision by the Board of Immigration Appeals that could have significant consequences for victims of domestic abuse and gang violence who are applying for asylum in the United States. The board had ruled in favor of a woman from El Salvador who had applied for asylum in order to seek refuge from her abusive husband. Typically a decision from the Board of Immigration Appeals is binding as the board is considered the highest government authority on immigration law. However, since all immigration courts are part of the Department of Justice, the attorney general has the power to assign himself cases. Cases vacated by the attorney general usually end up back in the federal appeals court. In the case of this particular Salvadoran woman, it will return to the immigration judge who initially denied her application. If the judge denies her again, she will be able to appeal once more.
In order to successfully appeal for asylum in the United States, applicants have to demonstrate that they suffered from persecution in their home countries on the basis of “race, religion, nationality, political opinion, or their particular social group”. Victims of domestic violence usually claim persecution under the last category, a particular social group. If so, they must “share a common immutable characteristic” with other members of their group, and their group must be “socially distinct within the society in question”. Furthermore, if their persecutor is not affiliated with the government, the asylum seeker must prove their government is unwilling or unable to protect them from said persecutor. After the 2016 decision granting asylum to the Salvadoran woman fleeing domestic violence, judges in the Obama administration followed the precedent that allowed other woman to claim similar fears of domestic abuse. Attorney General Sessions’ decision to vacate this ruling will make it significantly harder for those sorts of arguments to prevail in immigration court.
As a reason for his decision, Jeff Sessions emphasized that “the asylum statute does not provide redress for all misfortune” and that although he sympathized with the woman involved, the original language did not intend for “membership in a particular social group” to become a catch-all for unfortunate situations. Furthermore, he believes that the criteria for granting asylum has become too broad and that narrowing the scope of what constitutes a credible fear would help with the growing backlog of 700,000 cases currently making their way through the courts. Critics of the Trump administration, on the other hand, suggest that this is just another effort to deter illegal immigrants from coming to the United States by making the process of applying for asylum more difficult. Furthermore, they complain that this decision has overturned years of work towards providing abused women better protection under the law. Others suggest that Sessions’ intervention in this case was an abuse of power, and that immigration courts need to be independent from the Department of Justice.
On Tuesday, the Supreme Court ruled that part of a federal law used to deport immigrants who have been convicted of aggravated felonies is unconstitutionally vague, and thus violates the Fifth Amendment’s Due Process Clause. The case, Sessions v. Dimaya, concerns the Immigration and Nationality Act (INA).
The respondent in the case, James Dimaya, is a lawful permanent resident with two convictions of first-degree burglary under California law. The DOJ determined that burglaries constituted “crimes of violence,” and that Dimaya was thus subject to deportation under the INA. The immigration court had ruled that Dimaya was deportable based on the crime of violence grounds.
Dimaya appealed. While his appeal was pending, the Supreme Court ruled in Johnson v. United States. the residual clause of another law, the Armed Career Criminals Act (ACCA), unconstitutionally vague, and thus in violation of the Fifth Amendment’s Due Process Clause. The Ninth Circuit, citing the Johnson decision as precedent, ruled the residual clause of the INA unconstitutionally vague as well.
Now, the Supreme Court, in a 5-4 decision that has Justice Neil Gorsuch siding with the liberal wing of the Court, has affirmed the Ninth Circuit’s ruling.
I[n sum, §16(b) has the same “[t]wo features” that “conspire[d] to make [ACCA’s residual clause] unconstitutionally vague.” Id., at ___ (slip op., at 5). It too “requires a court to picture the kind of conduct that the crime involves in ‘the ordinary case,’ and to judge whether that abstraction presents” some not-well-specified-yet-sufficiently-large degree of risk. Id., at ___ (slip op., at 4). The result is that §16(b) produces, just as ACCA’s residual clause did, “more unpredictability and arbitrariness than the Due Process Clause tolerates.
16(b), much like the ACCA, requires still an even further degree of abstraction – it requires the judge to determine whether the imagined “ordinary case” presented a sufficient – but still undefined — degree of risk.
Kagan’s opinion was joined by Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Neil Gorsuch, in part.
Roberts was joined by Justices Kennedy, Thomas, and Alito.
While Gorsuch’s alignment with the liberal wing of the Court may seem surprising, it is consistent with his originalist philosophy, as well as that of his predecessor, Justice Antonin Scalia. Click To Tweet Justice Scalia also sided with the liberal wing of the Court in Johnson v. United States. Writing for the majority In Johnson, Scalia argues: “We are convinced that the indeterminacy of the wide-ranging inquiry required by the residual clause both denies fair notice to defendants and invites arbitrary enforcement by judges. Increasing a defendant’s sentence under the clause denies due process of law.” Gorsuch, in his concurring judgement in Dimaya, echoes his originalist counterpart.
The Trump administration’s focus on immigration enforcement means the Court will likely intervene in more criminal removal cases in the near future. The Roberts Court immigration record has been mixed thus far, with the narrow majority ruling to curb immigrants’ rights in some cases, such as Jennings v. Rodrieguez, and expanding immigrants’ rights in others, as they did this week in Dimaya.


text:
COMMONWEALTH vs. JAMES R. CYR, JR.
Present: WILKINS, C.J., ABRAMS, LYNCH, FRIED, & MARSHALL, JJ.
At the retrial of a murder case, the trial judge should rule on the admissibility of evidence of the defendant's other misconduct [95-96]; certain Probate Court records should be redacted to exclude hearsay ; the medical examiner may properly characterize the wounds suffered by the victim, with appropriate jury instructions by the judge [96-97]; prior recorded testimony of court proceedings in the case may properly be admitted ; and if any view of the evidence supported the inference that the victim used excessive force in repelling the defendant, a charge on manslaughter would be appropriate [97-98].
INDICTMENT found and returned in the Superior Court Department on April 6, 1993.
The case was tried before William H. Welch, J.
David P. Hoose (Judith Wideman with him) for the defendant.
Judith Ellen Pietras, Assistant District Attorney, for the Commonwealth.
ously admitted evidence was unfairly prejudicial and undermined his defense. Therefore, the defendant concludes a new trial is required on his conviction of murder in the first degree. We agree. We reverse and remand for a new trial on the indictment charging murder.
Facts. We summarize the evidence viewed in the light most favorable to the Commonwealth. Commonwealth v. Salemme, 395 Mass. 594 , 595 (1985). Tara Hartnett and the defendant met while attending college at the University of Massachusetts at Amherst. In April, 1992, during her junior year, Hartnett gave birth to the defendant's daughter. During the pregnancy, Hartnett and the defendant had agreed that adoption was in the best interest of the child. They met with a nurse counsellor at Children's Aid and Family Services in Northampton, to plan for the adoption placement. The nurse counsellor met with Hartnett and the defendant several times during the course of the pregnancy and after the child's birth. She said that there was increasing tension and discord in the relationship between Hartnett and the defendant as to the child's future.
After the child was born, the defendant decided that he wanted to keep the child himself with some help from his parents. Hartnett still believed that adoption was in the child's best interest. Eventually, Hartnett and the defendant decided against adoption. They agreed to have the child live at the defendant's parents' home in Amherst. Hartnett could see the child every day and help raise her.
On February 13, 1993, Hartnett and the defendant had a violent altercation which precipitated a series of legal proceedings in the District Court. Each sought a protective order against the other. A hearing on the orders was held in the Northampton Division of the District Court Department. The court issued the orders requested by both parties. A friend of Hartnett was designated the go-between. The go-between's tasks included picking up the child at the defendant's house for visits with Hartnett. Hartnett filed a petition with the Hampshire County Division of the Probate and Family Court, seeking to gain custody of the child. She also filed a criminal complaint against the defendant.
evening of March 20, 1993, Sunderland police and fire personnel were summoned to a fire at Hartnett's house. These officials recovered Hartnett's body from the burnt house.
That same evening, the defendant sought medical treatment at the emergency room of Cooley Dickinson Hospital. His hands were cut and bloody, he smelled of smoke and had singed hair. The defendant told the hospital personnel, and later the police, that he had burned his head on the stove while making coffee and that someone had attacked him with a knife while he was in his car.
road and walked through the woods to Hartnett's house. The defendant said that, although Hartnett tried to close the door on him, he stuck his foot in the door and forced his way into her house. Hartnett ran away from him.
The defendant said that Hartnett grabbed a knife from the kitchen. She cut his hand. The defendant then hit her, knocked her down, grabbed the knife, and "attacked her with it." The knife slipped and he felt his fingers go numb. The defendant said that he realized that he had just partially severed his fingers and that "drove [him] on even more, more." He said that Hartnett tried to run from him, but he followed her from room to room. Hartnett eventually collapsed on the floor, and stopped moving. Thinking she was already dead, the defendant ran from the house.
The defendant said that he was bleeding heavily. As he was running away over snowbanks by the garage, he looked in the open door and saw a can of gasoline. [Note 5] He decided to bum the house because he knew there was blood everywhere. He spilled the gasoline in various rooms and searched the house for matches. He found matches but he had difficulty striking them due to his injured hand. He finally ignited the gasoline. The back of his head was burned as he fled through the breezeway door. He admitted that the blood and footprints leading away from the house were his. However, he denied that the footprints (with the nearby impression matching the dimensions of the gas can) which led to the house were his. He went home and asked his father to bring him to the hospital. He admitted lying to the doctor and the police about how he was injured.
On rebuttal, two police officers testified that, when they arrived at Hartnett's house on the evening of March 20, the garage doors were closed. One officer also testified that he had examined the breezeway door and the snowbanks in front of the garage door, and that he had found no blood or footprints there.
his prior misconduct. The defendant contends that that hearsay evidence undermined his defense of what he calls provocation or lack of malicious intent.
A friend of Hartnett said that Hartnett told her: "[S]he was afraid for [the child's] safety as well as her own because of [the defendant's] personality and his violence." Over defense counsel's objection, the judge ruled that this statement was admissible "to show the relationship that was existing between the parties and what was going on between them, the general tenor of their behavior, one to the other." [Note 7] The nurse counsellor said that, during a telephone conversation, Hartnett had told her: "If [the defendant] would hit his mother and he would hit me, what will he do to [the child] in the future. So I don't want him to raise [the child]." [Note 8] The nurse counsellor said that she told Hartnett that "she had a right to feel safe, and that she had a right to make sure her child was safe." The nurse counsellor also said that, during another telephone conversation, Hartnett told her: "I'm afraid of [the defendant] and I don't want him anywhere near me, and I wouldn't drop the [protective] order."
statements of Hartnett as to her fear of the defendant was erroneous and prejudicial. The hearsay statements undermined the defendant's defense. See, e.g., Commonwealth v. Andrade, 422 Mass. 236 , 239 (1996). The hearsay testimony of Hartnett's statements invited the jurors to base their decision on the degree of the defendant's culpability (the only issue in the case) on inadmissible hearsay. [Note 9] See DelValle, supra at 492-493; Bond, supra at 399.
The Commonwealth argues that the extrajudicial statements were admissible because Hartnett's state of mind was known to the defendant and relevant to his motive for killing her. [Note 10] See Commonwealth v. Lowe, 391 Mass. 97 , 106, cert. denied, 469 U.S. 840 (1984); Commonwealth v. Borodine, 371 Mass. 1 , 7-8 (1976), cert. denied, 429 U.S. 1049 (1977). See also Bond, supra at 398 ("[t]he state of mind exception . . . allows the admission of extrajudicial statements to show the state of mind of the declarant if it is relevant to a material issue in the case"). Contrary to the Commonwealth's claim, Hartnett's fear of the defendant was not relevant, particularly where the only issue was the defendant's degree of culpability.
dence was not cumulative of properly admitted evidence. Contrast Andrade, supra at 240 (new trial not required where "ample other evidence of threats, acts of physical violence, marital discord, and suspicions of infidelity" rendered "the erroneously admitted evidence cumulative on the points of the defendant's intent and his state of mind").
We consider whether the improper admission of evidence weakened the defendant's case in some significant way so as to require a retrial. See Commonwealth v. Daggett, 416 Mass. 347 , 352 n.5 (1993); Commonwealth v. Schulze, 389 Mass. 735 , 741 (1983). We cannot fairly say that, in considering the defendant's intent and degree of culpability, the jurors primarily relied on properly admitted evidence to make their decision. Contrast Andrade, supra at 241.
Evidence of Hartnett's fear of the defendant could have been considered by the jurors in determining the defendant's culpability as well as evidence of his violence toward his mother. We therefore conclude that the erroneous admission of the improper evidence constituted reversible error. See Commonwealth v. Stone, 321 Mass. 471 , 474 (1947) ("[w]hether guilty or innocent, he was entitled to be tried in accordance with law"). "[S]uch doubts as we entertain can only be resolved in favor of the defendant." Commonwealth v. Welcome, 348 Mass. 68 , 70 (1964).
B. Issues likely to recur at a new trial. We turn to other issues raised on appeal which may recur on retrial.
determining whether its probative value outweighs the risk of undue prejudice." Commonwealth v. McClendon, 39 Mass. App. Ct. 122 , 128 (1995). See Commonwealth v. Triplett, 398 Mass. 561 , 562-564 (1986).
2. The Probate Court file. Over defense counsel's objection, the Probate Court file concerning Hartnett and the defendant was admitted in evidence. Defense counsel argued that, because of the propensity for exaggeration by complainants and their attorneys, the probative value of the evidence was outweighed by its prejudicial impact. The judge ruled the documents admissible to show the relationship of the parties and the defendant's motive. We agree that some documents are not hearsay and may come in as extrinsic evidence to show the relationship of the parties. Hearsay portions regarding Hartnett's intent to gain custody also are admissible as known by the defendant and relevant to his motive. See Lowe, supra at 106; Borodine, supra at 7-8. However, the file should be redacted to exclude Hartnett's hearsay statements alleging uncharged domestic violence.
v. Gregory, 17 Mass. App. Ct. 651 , 655-656 (1984) (medical examiner's opinion regarding defensive wounds admissible where opinion was based on reliable medical data and plausible assumptions within the expert's professional competence). Moreover, the judge properly instructed the jury that expert opinions were given merely to assist the jury, and that the jury could accept or reject those opinions as it saw fit. See Commonwealth v. Matthews, 406 Mass. 380 , 391 (1990).
4. Prior recorded testimony. The judge permitted three witnesses who were friends of Hartnett to recount their memory of the testimony at the prior court hearings. [Note 11] The defendant objected. There was no error. "The exception to the hearsay rule permits the admission of prior recorded testimony 'where the prior testimony was given by a person, now unavailable, in a proceeding addressed to substantially the same issues as in the current proceeding, with reasonable opportunity and similar motivation on the prior occasion for cross-examination of the declarant by the party against whom the testimony is now being offered.' Commonwealth v. Meech, 380 Mass. 490 , 494 (1980)." Commonwealth v. Trigones, 397 Mass. 633 , 638 (1986). See P.J. Liacos, Massachusetts Evidence s. 8.7.2, at 461 (6th ed. 1994 & Supp. 1995).
5. Manslaughter charge. Over the Commonwealth's objection, the judge charged the jury on manslaughter. However, "[i]t is well established that, if any view of the evidence in a case would permit a finding of manslaughter rather than murder, a manslaughter charge should be given." Commonwealth v. Walden, 380 Mass. 724 , 726 (1980), and cases cited. See also Commonwealth v. Schnopps, 383 Mass. 178 , 179 (1981), S.C., 390 Mass. 722 (1984) ("[i]n deciding whether the judge should have charged on manslaughter, we assume the version of the facts most favorable to the defendant").
The defendant maintained that, on the evening of March 20, he was distraught over the entire situation and went to Hartnett's house with the intention of merely talking to her. He wanted to settle their issues outside of court. He stated that he entered the house unarmed and tried to calm Hartnett down by assuring her that he just wanted to talk. He claimed that he lost his self-control only after she swung a knife at him and cut his hand.
We have not spoken to whether a person in the defendant's position (a trespasser) is entitled to a manslaughter charge in a trial for the killing of an occupant of a dwelling. An occupant of a dwelling has no duty to retreat from an unlawful intruder. G. L. c. 278, s. 8A. However, at common law the degree of force an occupant of a dwelling is entitled to use against an intruder varies with the circumstances of the trespass. See generally 1 W.R. LaFave & A.W. Scott, Jr., Substantive Criminal Law s. 5.9 (b), at 669-671 (1986 & Supp. 1997). If any view of the evidence supports the inference that Hartnett used excessive force in repelling the defendant, a charge on manslaughter would be appropriate. Contrast Walden, supra at 729. See 2 C. Torcia, Wharton's Criminal Law s. 159, at 359 (15th ed. 1994). See also McCoy v. State, 8 Ark. 451, 455 (1848).
Accordingly, the judgment is reversed, the verdict is set aside, and the case is remanded for a new trial on the indictment charging murder in the first degree based on deliberate premeditation. [Note 12] The arson conviction is affirmed.
[Note 1] The defendant does not allege any error in the conviction of arson. That conviction is affirmed.
[Note 2] The medical examiner opined that Hartnett died primarily of smoke inhalation, with the bum injuries and the loss of blood due to the stab wounds as secondary and tertiary causes of death, respectively.
[Note 3] We do not recite the extensive forensic evidence linking the defendant to the killing as he does not deny killing Tara Hartnett. He only challenges his degree of culpability.
[Note 4] A show cause hearing on Hartnett's criminal complaint took place on March 18, 1993. Three witnesses testified as to Hartnett's testimony regarding the February 13 incident.
[Note 5] Hartnett's housemates said that they had never seen the gasoline can in the garage.
[Note 6] There was ample admissible evidence as to the tension and conflicts in the relationship between Hartnett and the defendant.
[Note 7] Defense counsel did not specifically object to all the hearsay statements. However, the record indicates that the judge was on notice that defense counsel was objecting to the admission of hearsay statements made by Hartnett.
[Note 8] The admission of this statement was egregious because there was no evidence that Hartnett ever saw the defendant strike his mother.
[Note 9] Over defense counsel's objection, the judge ruled that some of Hartnett's statements were admissible as a "declaration of a deceased person." This ruling was erroneous. General Laws c. 233, s. 65, is inapplicable to criminal cases. See Commonwealth v. Mandeville, 386 Mass. 393 , 398 n.3 (1982).
[Note 10] At trial, the Commonwealth proceeded on the theory that the defendant killed Hartnett because of her intent to seek custody of their daughter. Accordingly, extrajudicial statements which recounted the increasing conflict between Hartnett and the defendant as to their daughter and related Hartnett's intent to seek custody were properly admissible under the state of mind exception as relevant evidence of the defendant's motive. See Commonwealth v. Lowe, 391 Mass. 97 , 106 (1976), cert. denied, 469 U.S. 840 (1984); Borodine, supra at 8.
[Note 11] The record is not clear whether tape recordings of the proceedings were available.
[Note 12] The jury rejected the Commonwealth's claim that the murder was committed with extreme atrocity or cruelty. On retrial, that theory may not be submitted to the jury.

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