United States Court of Appeals

               FOR THE DISTRICT OF COLUMBIA CIRCUIT

        Argued May 12, 1999        Decided July 23, 1999 

                           No. 98-3123

                    United States of America, 
                     Appellant/Cross-Appellee

                                v.

                   Archibald R. Schaffer, III, 
                     Appellee/Cross-Appellant

                        Consolidated with 
                           No. 98-3126

          Appeals from the United States District Court 
                  for the District of Columbia 
                        (No. 96cr00314-02)

                            ---------

     Robert W. Ray, Deputy Independent Counsel, argued the 
cause for appellant/cross-appellee.  With him on the briefs 
were Donald C. Smaltz, Independent Counsel, Charles M. 
Kagay, Chief Appellate Counsel, Wil Frentzen, Adrienne R. 

Baron and Joseph P. Guichet, Associate Independent Coun-
sel.

     William H. Jeffress, Jr., argued the cause for appel-
lee/cross-appellant.  With him on the briefs were Joe R. 
Caldwell, Jr., James R. Heavner, Jr., Grant R. Vinik and 
Woody Bassett.

     Before:  Wald, Silberman and Henderson, Circuit Judges.

        Opinion for the Court filed by Circuit Judge Wald.

     Opinion dissenting from Part II(A)(2) filed by Circuit 
Judge Henderson.

     Wald, Circuit Judge:  The United States appeals a decision 
by the district court granting Archibald Schaffer's post-trial 
motion for a judgment of acquittal.  After a jury found 
Schaffer guilty of violating the Meat Inspection Act, 21 U.S.C. 
s 622, and the federal gratuity statute, 18 U.S.C. 
s 201(c)(1)(A), the court set aside the verdict on the grounds 
that the jury had been presented insufficient evidence to 
support a verdict of guilt on either count.  See United States 
v. Williams, 

(D.D.C. 1998).  Subsequently, 
the court conditionally denied Schaffer's motion for a new 
trial, a decision from which Schaffer has filed a conditional 
cross-appeal.  While we agree with the district court's deter-
mination that the evidence cannot support a conviction for 
giving an unlawful gratuity, we find sufficient evidence in the 
record from which a reasonable juror could have concluded 
that Schaffer violated the Meat Inspection Act.  Therefore, 
we affirm the district court's decision in part and reverse in 
part.  We additionally reject the challenges raised in Schaf-
fer's conditional cross-appeal.  Accordingly, we vacate the 
judgment of acquittal on the Meat Inspection Act count, 
reinstate the jury verdict on that count, and remand for 
sentencing.

                          I. Background

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

cause consideration of whether the jury verdict has sufficient 
evidentiary underpinnings is necessarily fact-intensive, we set 
out the relevant incidents in some detail.  The criminal 
charges brought against Archibald Schaffer ("Schaffer" or the 
"defendant") trace back to 1994, when allegations of illegality 
were first levied against then-Secretary of Agriculture Al-
phonso Michael Espy ("Secretary Espy," "Espy," or the 
"Secretary").  On application of the Attorney General, a 
special division of this circuit appointed Donald C. Smaltz as 
independent counsel and granted him the authority to investi-
gate whether Secretary Espy had violated federal criminal 
law by accepting gifts from individuals or corporations with 
business before, or regulated by, the United States Depart-
ment of Agriculture ("USDA").  See In re Espy, 

(D.C. Cir. Spec. Div. 1998).  Along with some other 
regulated entities, Tyson Foods International ("Tyson 
Foods"), the world's largest producer of poultry products, 
ultimately came under official scrutiny for its generosity 
towards Secretary Espy.  Schaffer, then the Director of 
Media, Public and Governmental Affairs for Tyson Foods, 
became a target in this investigation for his alleged role in 
transmitting things of value from his employer to the Secre-
tary.

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

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

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

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

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

tary Espy attended the party with Dempsey, at which they 
were entertained by B.B. King and other musicians, and then 
spent the night at the Tyson Complex.  (3) In September of 
1993, John Tyson advised Dempsey of, and recommended 
that she apply for scholarship money available from the 
Tyson Foundation.  Dempsey ultimately received a $1,200 
Foundation scholarship.  (4) On January 16, 1994, Secretary 
Espy and Dempsey attended the Dallas Cowboys-Green Bay 
Packers playoff game as guests of Don Tyson.  Tyson Foods 
purchased Dempsey's plane ticket, arranged car and limou-
sine transportation for Espy and Dempsey, and provided 
seats in the Tyson Foods skybox.2

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

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

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

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

     Throughout 1993, the USDA continued work on two of the 
Track 1 policies of great interest to Tyson Foods.  First, 
FSIS refined and implemented a plan for pathogen reduction, 
an effort which eventually acquired the name "zero toler-
ance."3  Although its attention initially focused upon meat, 
the improper handling of which had generated the E coli 
outbreak, FSIS was also in the process of formulating a "zero 
tolerance" pathogen control program for poultry.  Second, 
FSIS worked on developing a consumer education program 
that would apply to all meat and poultry products.  This 
effort culminated in an emergency regulation mandating the 
use of so-called "safe handling labels" on all not-ready-to-eat 
products.  Intended to heighten consumer awareness, these 
labels would contain care and handling instructions designed 
to eliminate the risk posed by food-borne pathogens.  An-
nounced by Secretary Espy on August 11, 1993, and officially 
promulgated five days later, this emergency interim rule 
required that USDA-approved labels be in place within sixty 
days.  After an intense industry lobbying campaign coupled 
with White House intervention, Secretary Espy ultimately 
agreed to delay implementation of the emergency regulation, 
pushing the date for full compliance back to April 15, 1994.

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

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

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

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

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

          Any person, firm, or corporation, or any agent or employee 
     of any person, firm, or corporation, who shall give, pay or offer, 
     directly or indirectly, to any ... officer or employee of the 
     United States authorized to perform any of the duties pre-
     scribed by this subchapter or by the rules and regulations of 
     the Secretary any money or other thing of value, with intent to 
     influence said ... officer or employee of the United States in 
     the discharge of any duty provided for in this subchapter, shall 
     be deemed guilty of a felony, and, upon conviction thereof, shall 
     be punished by a fine not less than $5,000 nor more than 
     $10,000 and by imprisonment not less than one year nor more 
     than three years.
     
conjunction with Secretary Espy's attendance at the Russell-
ville party, and second for violating the federal gratuity 
statute6 through providing tickets to the inaugural dinner.

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

.7 Using this court's decision in United States v. Sun-

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

     otherwise than is provided by law for the proper discharge of 
     official duty ... directly or indirectly gives, offers, or promises 
     anything of value to any public official, former public official, or 
     person selected to be a public official, for or because of any 
     official act performed or to be performed by such public official, 
     former public official, or person selected to be a public official 
     ... shall be fined under this title or imprisoned for not more 
     than two years, or both.
     
The statute further defines an "official act" to include "any decision 
or action on any question, matter, cause, suit, proceeding or contro-
versy, which may at any time be pending, or which may by law be 
brought before any public official, in such official's official capaci-
ty...."  18 U.S.C. s 201(a)(3).

     7 The court conditionally disposed of Schaffer's new trial motion 
in a separate and subsequent order.  See United States v. 
Williams, No. 96-0314 (D. D.C. Oct. 6, 1998) (order denying new 
trial motion).  Schaffer had argued that the court erred in preclud-
ing him from eliciting the fact of John and Don Tyson's immunity 
agreements during the cross-examination of John Tyson, and that 
the prosecution had made improper and prejudicial comments in 
each of its opening, closing, and rebuttal statements.  The court 
referenced an earlier trial ruling and its Williams opinion as the 
respective grounds for rejecting each of these contentions.  See 
discussion infra pp. 30-35.

Diamond Growers of California, 

(D.C. Cir. 
1998) ("Sun-Diamond I"), aff'd, 

(1999) ("Sun-
Diamond"), as its point of departure, the court read both the 
federal gratuity statute and the Meat Inspection Act as 
requiring a link between the gifts and an intent to influence 
specific official acts of the recipient.  Since the trial and the 
jury instructions had each revolved around two official USDA 
policies--i.e. zero tolerance and safe handling labels--the 
court examined the nexus between those policies and the gifts 
given to Espy to determine if it was strong enough to sustain 
a finding of intent to influence an official act (under the 
gratuity statute) or the discharge of any duty (under the 
Meat Inspection Act).  Beginning with the gratuities count, 
the court asserted that "[t]here was no evidence that Mr. 
Schaffer or anybody in Tyson Foods knew or anticipated 
anything about zero tolerance or mandatory safe handling 
labels at the time of the inaugural dinner," 

, because E coli had first been identified as 
the cause of the deadly food poisoning outbreak only earlier 
that day.  As for the Meat Inspection Act count, the court 
similarly concluded that neither of the two policies could 
provide the requisite nexus with the Russellville party;  each 
was disqualified for temporal reasons.  In the court's view, 
zero tolerance had ceased to be a live issue for meat more 
than two months before the weekend gala, and Tyson Foods 
had yet to voice any objection to the regulation mandating 
safe handling labels.  See 

 Accordingly, the court 
granted Schaffer's Rule 29 motion and entered a judgment of 
acquittal on each count.  Seeking reinstatement of the jury 
verdict, the independent counsel appeals from this decision on 
behalf of the United States.

                          II. Discussion

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

, 1163 (D.C. Cir. 1983).  

While we recognize the district court's unique vantage point 
in evaluating the evidence, our review is nevertheless de novo.  
See United States v. Campbell, 

, 1183 (D.C. Cir. 
1983) (in banc).  Finally, in order to safeguard the fact-
finding function assigned to the jury, we make a searching 
review of the record to determine whether the prosecution 
presented evidence from which a rational juror could have 
found guilt beyond a reasonable doubt.  Unless we conclude 
that no reasonable jury could have found guilt beyond a 
reasonable doubt on the evidence presented, we defer to its 
determinations.

A.   The Government's Appeal

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

     give[ ], offer[ ], or promise[ ] anything of value to any 
     public official, former public official, or person selected to 
     be a public official, for or because of any official act 
     performed or to be performed by such public official, 
     former public official, or person selected to be a public 
     official....
     
18 U.S.C. s 201(c)(1)(A) (emphasis added).  As the trial court 
correctly instructed, a violation of this statute requires the 
presence of three separate elements:  that the defendant (i) 
knowingly gave a thing of value;  (ii) to a public official or 
person selected to be a public official;  (iii) for or because of 
any official act performed or to be performed.  Since the trial 
court based its decision vacating the gratuities conviction 
upon the third element, properly conceding that the jury had 
been presented with sufficient evidence of the first two ele-
ments, see 

, we focus our 
attention there as well.

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

the heart of this case.  As both parties readily admit, the 
statutory language at issue, that a thing of value be given "for 
or because of an official act," requires some nexus between 
the thing given and an "official act," which the statute defines 
as "any decision or action on any question, matter, cause, suit, 
proceeding or controversy, which may at any time be pend-
ing, or which may by law be brought before any public 
official, in such official's official capacity...."   18 U.S.C. 
s 201(a)(3).  Though this case was tried before the Supreme 
Court handed down its recent Sun-Diamond decision, the 
proceedings were fully in accord with the Court's subsequent 
holding that "the giving of gifts by reason of the recipient's 
mere tenure in office" does not constitute a violation of the 
gratuity 

.  In the words of the 
district court's jury instructions, "[i]t is not a crime to give 
things of value to a public official merely to get cozy or in the 
hopes of inducing warm feelings toward the giver or the 
giver's employer."  6/25/98 Tr. at 1779.  But while all in-
volved agree that the gratuity statute's scienter requirement 
demands more than a gift motivated solely by the recipient's 
official status, and that the statutory terms are "pregnant 
with the requirement that some particular official act be 
identified and proved," 

, the 
magnitude of the necessary link, and its proper translation 
into a concrete rule of decision, remains in some doubt.

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

find that Espy's official position motivated the gift.  The 
Supreme Court rejected this reading of the gratuity statute 
as contrary to the language of its text, see 

within 
the larger statutory and regulatory framework governing the 
integrity of public officials, and congressional intent.  See 

 In the Court's view, the operative "for or be-
cause of" language naturally means "for or because of some 
particular official act of whatever identity," 

(em-
phasis added), and requires the government to "prove a link 
between a thing of value conferred upon a public official and a 
specific 'official act' for or because of which it was given."  

 Since Sun-Diamond might have been convicted for 
gifts that lacked any nexus with a particular official act but 
were instead motivated by the Secretary's mere status, the 
Court felt no need to explore the degree of proof necessary to 
show the link or how the government might go about estab-
lishing its presence.

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

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

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

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

, 149 (D.C. Cir. 1982), 
"[i]t is no easy task to articulate the requisite intent neces-
sary to constitute accepting or giving an illegal gratuity."  
Because, however, the bribery section has received judicial 
elaboration and the gratuity provision has not, the former 
provides an illuminating backdrop against which to begin our 
interpretive task.  The two prohibitions differ in two funda-
mental respects.  First, bribery requires a quid pro quo, and 
accordingly can be seen as having a two-way nexus.  That is, 
bribery typically involves an intent to affect the future actions 
of a public official through giving something of value, and 
receipt of that thing of value then motivates the official act.  
See Sun-Diamond 

.  A gratuity, by con-
trast, requires only a one-way nexus;  "the gratuity guideline 
presumes a situation in which the offender gives the gift 
without attaching any strings...."  United States v. Mari-
ano, 

, 1159 (1st Cir. 1993).  See also United 
States v. Brewster, 

, 72 (D.C. Cir. 1974) ("the 
briber is the mover or producer of the official act, but the 
official act for which the gratuity is given might have been 
done without the gratuity, although the gratuity was pro-
duced because of the official act").

     The two provisions additionally differ in their temporal 
focus.  Bribery is entirely future-oriented, while gratuities 
can be either forward or backward looking.  See 

.  In other words, whereas bribery involves 
the present giving, promise, or demand of something in 
return for some action in the future, an unlawful gratuity can 
take one of three forms.  First, a gratuity can take the form 
of a reward for past action--i.e. for a performed official act.  

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

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

See, e.g., 

(illegal gratuity where construction 
company moved the household goods of a judge who had 
suspended hundreds of its traffic tickets).  Second, a gratuity 
can be intended to entice a public official who has already 
staked out a position favorable to the giver to maintain that 
position.  See 

(postulating 
scenario of gift to Department of Justice antitrust appointee 
who had publicly indicated support of the giving company's 
pending merger because of anticipated continued future sup-
port).  Finally, a gratuity can be given with the intent to 
induce a public official to propose, take, or shy away from 
some future official act.  See, e.g., United States v. Sawyer, 

(1st Cir. 1996) (gifts to legislators who had ability to 
affect company's ongoing legislative concerns constitute un-
lawful gratuities under analogously worded Massachusetts 
statute).  This third category would additionally encompass 
gifts given in the hope that, when the particular official 
actions move to the forefront, the public official will listen 
hard to, and hopefully be swayed by, the giver's proposals, 
suggestions, and/or concerns.

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

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

          [ ] You may find the defendants or either of them guilty of 
     the Meat Inspection Act and gratuities counts charged without 
     finding that they personally committed each of the acts that 
     made up the crime or that they were present while the crime 
     was being committed.
     
If the evidence supports such a finding, we then ask whether 
a rational jury could additionally have determined that the 
thing of value was provided with the requisite statutory intent 
to influence Secretary Espy in his actions with regard to 
those policies.  Beginning with the first question, we think it 
abundantly clear that the evidence presented satisfies the 
burden of sufficiency.  The government introduced a series of 
internal Tyson Foods documents relating to the inaugural 
dinner, including:  (i) two separate check requisitions to cover 
the cost of Tyson Foods' tables, each filled out and signed by 
Schaffer, see 6/17/98 Tr. at 392-93;  (ii) a memo from Schaffer 
to the Tyson inaugural team listing table assignments for the 
dinner, including those of Espy, his girlfriend, and his two 
siblings, see GX87;  and (iii) a letter from the presidential 
inaugural regarding procedures for the event, including the 
need for tickets, next to which Schaffer had written that he 
would pick up and distribute them.  See GX36;  6/24/Tr. at 
1595-95.  In addition, the government elicited testimony that 
Schaffer had been involved in coordinating Tyson Foods' 
participation at various inaugural events.  See 6/19/98 Tr. at 
913.  While the defense sought to minimize Schaffer's role, 
the government's testimony, taken as a whole, supports a 

__________
          Any person who in some way intentionally participates in the 
     commission of a crime aids and abets the principle offend-
     er....  
     
          To find that a defendant aided and abetted in committing a 
     crime, you must find that the defendant knowingly associated 
     himself with the persons who committed the crime, that he 
     participated in the crime as something he wished to bring 
     about, and that he intended by his actions to make the crime 
     succeed.
     
          Now, some affirmative conduct by the defendant to help in 
     planning or carrying out the crime is necessary....  It is 
     sufficient if you find beyond a reasonable doubt that the crime 
     was committed by someone and that the defendant in question 
     knowingly and intentionally aided and abetted the principal 
     offenders in committing the crime.
     
6/25/98 Tr. at 1780-81.

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

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

, 57 (1st Cir. 1998) (in 
assessing whether defendant sought to influence official acts, 
"[t]he jury was entitled to infer the defendant's intent from 
the circumstances surrounding his actions, from indirect, as 
opposed to direct, evidence") (citation omitted);  Chedick v. 
Nash, 

, 1083 (D.C. Cir. 1998) (despite absence of 
smoking gun, jury entitled to infer intent to defraud from 

circumstantial evidence);  United States v. Castellanos, 

, 984 (D.C. Cir. 1984) ("no legal distinction is made 
between circumstantial and direct evidence in determining 
whether sufficient evidence supports the verdict").

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

__________
     11 At oral argument, the independent counsel additionally refer-
enced the Texas Food Industry Assoc. v. USDA opinion, 

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

quoted in Texas Food 

ingly, although the record does not entirely support the 
district court's conclusion that "[t]here was no evidence that 
Mr. Schaffer or anybody in Tyson Foods knew or anticipated 
anything about zero tolerance or safe handling labels at the 
time of the inaugural dinner," 

, 
it still cannot support the guilty verdict.  Acknowledging the 
evidence highlighted by the independent counsel, we also note 
the following undisputed testimony.  First, Tyson Foods had 
purchased its three tables to the dinner before December 24, 
1992, the date on which President Clinton announced Espy's 
appointment to the position of Agriculture Secretary.  Sec-
ond, Espy's name, as well as those of his girlfriend and 
siblings, appears on a January 15, 1993 memorandum drafted 
by Schaffer that lists the final table assignments for the 
inaugural dinner.  See GX87.  Since the E coli outbreak 
occurred sometime in the middle of January, and the USDA 
did not become apprised of its actual cause--contaminated 
hamburger meat--until January 18th, the day of the inaugu-
ral dinner, USDA's subsequent heightened interest in zero 
tolerance and safe handling labels could not have motivated 
the invitation extended to Espy, which necessarily predated 
January 15th.  It was not until February 4th that Secretary 
Espy briefed industry representatives on his proposed initia-
tives.

__________

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

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

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

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

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

     Any person, firm, or corporation, or any agent or em-
     ployee of any person, firm, or corporation, who shall give, 
     pay, or offer, directly or indirectly, to any ... officer or 
     employee of the United States authorized to perform any 
     of the duties prescribed by this subchapter ... any 
     money or other thing of value, with intent to influence 
     said ... officer or employee of the United States in the 
     discharge of any duty provided for in this subchapter, 
     shall be deemed guilty of a felony....  
     
(Emphases added).  Similar to the gratuities prohibition, a 
violation of this statute requires the presence of three sepa-
rate elements:  the defendant must have (i) directly or indi-
rectly given (or aided and abetted the giving of);  (ii) a thing 
of value to a covered official;  (iii) with the intent to influence 
the discharge of any official duty under the Meat Inspection 
Act.13  The Act clearly applies to Tyson Foods, as its Beef 
and Pork Division accounted for eight to ten percent of its 
overall business.  See 6/19/98 Tr. at 910.  As with the unlaw-
ful gratuities count, the core of the dispute centers around 
whether the prosecution presented sufficient evidence for a 
reasonable jury to conclude that Schaffer acted with the 
requisite intent to influence any of the Secretary's duties 
under the Meat Inspection Act.

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

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

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

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

narrow range of 

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

     15 See supra n.6.

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

meat-related activities it covers, however, the Act's gratuity 
provision is actually more expansive than the general gratuity 
statute, as it seemingly can be triggered without reference to 
a particular official act.  The Meat Inspection Act lacks a 
counterpart to the careful definition that the gratuity statute 
gives the term "official act," the very statutory language upon 
which the Sun-Diamond Court so heavily relied in requiring 
a particularized nexus.  In fact, the Act does not place any 
restrictive definitional gloss upon what constitutes "the dis-
charge of any duty under the Act," allowing the ordinary 
meaning of those terms to govern the interpretation.  See 
United States v. Espy, 

, 1371 (D.C. Cir. 1998) (a 
"duty" is "something that one is expected or required to do 
by moral or legal obligation") (citation omitted).

     As our own Espy opinion indicates, the duties of the 
Agriculture Secretary under the Meat Inspection Act are 
manifold.  See 

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

__________
gratuities, as our dissenting colleague appears to suggest.  See 
Diss. Op. at 3.  While we have previously held that bribery requires 
a defendant to act "corruptly," see United States v. Gatling, 

, 1522 (D.C. Cir. 1996), the Act speaks only of acting with an 
"intent to influence," the scienter requirement associated with an 
unlawful gratuity.  See 

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

.

     That said, the fact remains that Schaffer's trial proceeded 
on the theory that section 622 of the Meat Inspection Act and 
section 201(c)(1)(A) of the federal gratuity statute were co-
extensive.  See 

.  The jury 
instructions required the same link between the thing given 
and an intent to influence a particular official action, here 
either zero tolerance or safe handling labels, as they had for 
the gratuities counts.  Although we are inclined to believe 
that the Meat Inspection Act contains a less rigorous intent 
requirement than the federal gratuity statute, we additionally 
believe that the prosecution presented evidence linking the 
Russellville party with an intent to influence these specific 
policies sufficient for a reasonable jury to have found Schaffer 
guilty beyond a reasonable doubt under the more stringent 
standard of the gratuity statute.  Because our conclusion that 
the evidence supports a finding of guilt under the gratuity 
statute's intent requirement necessarily includes a finding 
that a lesser burden would similarly be satisfied, we leave the 
precise articulation of the Meat Inspection Act's intent re-
quirement to another day.  Accordingly, we will assess the 
verdict against the standard of the gratuity statute, the very 

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

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

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

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

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

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

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

pp. 16-17, 
we believe that the independent counsel has presented suffi-
cient evidence to establish the requisite link.

     The district court rejected the jury verdict on two separate 
grounds, corresponding to the two identified official acts, each 
of which we address in turn.  First, the court noted that 
although the Secretary had announced his intent to move 
forward with the labeling initiative at his February 4th meet-
ing with industry representatives, he did not promulgate the 
interim regulation until three months after the Russellville 
party.  See 

.  Once the proposal 
had moved to the regulatory forefront in the aftermath of the 
January 1993 E coli outbreak, however, we do not see how 
the precise timing of its official publication undercuts an 
inference that Tyson Foods hoped to influence its final form 
through bestowing largess.  The district court's conclusion, 
echoed by our dissenting colleague, see Diss. Op. at 4, pre-
sumably picked up on Schaffer's argument that Tyson Foods 
did not oppose the labeling proposal prior to its August 
promulgation, and even then only objected to its stringent 
timing requirements, not to its substance.  But again, we do 
not regard the timing sequence as negating a reasonable 
inference of intent, particularly under the deferential stan-
dard we use in reviewing a jury's verdict of guilt.  The 
statute requires an intent to influence, not an attempt to 
block or to eviscerate some particular official act.  In fact, the 

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

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

     With respect to zero tolerance, the district court concluded 
that insofar as that policy related to meat, "[t]he policy had 
already been implemented, on March 2, 1993, so the [Act's] 
requisite 'intent to influence' that action could not have been 
present in May."  

.  We do not 
read the record the same way.  While the generative "our 
tolerance for fecal matter will be zero" memorandum had 
been issued on March 2nd, the record indicates that FSIS 
continued to develop and the USDA continued to implement 
its pathogen control policy throughout 1993.  Dr. Cross testi-
fied that FSIS worked on a policy of zero tolerance for meat 
and poultry all during 1993, and that the policy was not ready 
for presentation to the Secretary until November of that 
year.  See 6/17/98 Tr. at 466-67.  Moreover, when Dr. Cross 
left FSIS in 1994, his departure memorandum outlining pend-
ing issues listed several elements of the pathogen reduction 
program for meat that had been originally introduced to the 
public on February 4th and 5th.18  See GX120;  GX116.  Fi-
nally, whereas the district court emphasized that zero toler-

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

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

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

had scheduled with Secretary Espy to discuss the labeling 
issue.  Watts additionally admitted to drafting a pre-meeting 
memorandum wherein he communicated to the participants 
the general impropriety of discussions between the Secretary 
and industry representatives about regulations in the rule-
making stage, and the correlative need to tiptoe around the 
issue.  See 6/18/98 Tr. at 629-39, GX124.  Finally, Patricia 
Dempsey testified that she witnessed John Tyson confront 
Secretary Espy about the labeling issue at a September 1993 
reception, seeking to persuade him of the need to alter the 
rule.  See 6/22/98 Tr. at 1095.

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

502.  Finally, Schaffer omitted Patricia Dempsey's name from 
the passenger list of those traveling with the Secretary on the 
corporate plane from Russellville, thereby obscuring the pri-
vate nature of the trip from Espy's travel coordinator.  See 

570.

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

question was, at the time he received the gratuity, in a 
position to influence the trajectory of the policies in question.  
See United States v. Haldeman, 

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

B.   Schaffer's Cross-Appeal

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

     1.   The Rule 608(a) Question
          
     Schaffer challenges a series of rulings by the district court 
which collectively precluded the defense from introducing 
testimony regarding the government's grant of immunity to 
both John and Don Tyson.  During cross-examination, gov-
ernment witness John Tyson, who had been identified to the 
jury as an unindicted co-conspirator and as Schaffer's boss, 
testified that he and Schaffer had never discussed the possi-
bility of influencing Secretary Espy through largess, nor did 
he ever think that Espy could be influenced thereby.  See 

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

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

     The credibility of a witness may be attacked or sup-
     ported by evidence in the form of opinion or reputation, 
     but subject to these limitations:  (1) the evidence may 
     refer only to character for truthfulness or untruthfulness, 
     and (2) evidence of truthful character is admissible only 
     after the character of the witness for truthfulness has 
     been attacked by opinion or reputation evidence or other-
     wise.
     
Fed. R. Evid. 608(a).  The rule appears inapplicable, both 
facially and structurally, to the testimony that Schaffer 
sought to introduce.  Turning to the language of Rule 608(a), 
the existence of John and Don Tyson's immunity agreements 
constitutes neither opinion nor reputation evidence, the only 
two subjects mentioned therein.  Moreover, as the rule 
speaks in general terms of a witness's character for truthful-
ness or untruthfulness, it does not touch upon the separate 

question of whether a generally truthful witness may have a 
motive to lie in one specific instance.  See United States v. 
Lindemann, 

(7th Cir. 1996) (distinguishing five 
acceptable methods for attacking a witness's credibility, two 
of which are attacking the witness's character for truthfulness 
and demonstrating bias);  27 Wright and Gold, Federal Prac-
tice and Procedure s 6094 (1990) (same).  As the Advisory 
Committee Notes to Rule 608 explains, while evidence of a 
witness's general character for honesty or integrity can pro-
vide de minimis support for a conclusion as to whether he is 
testifying accurately on a particular occasion, the probative 
value of such testimony will generally be outweighed by the 
needless consumption of time involved in putting "good char-
acter" witnesses on the stand.  See Fed. R. Evid. 608(a) 
advisory committee's note.  Accordingly, the Federal Rules 
allow the introduction of opinion or reputation testimony to 
attack a witness's credibility, but limit such good character 
testimony to situations where the witness's veracity has al-
ready been specifically impugned.  In contrast to a witness's 
general character for truthfulness or untruthfulness, which is 
largely peripheral to the facts at issue in a given case, the 
question of a witness's potential bias is both particularized 
and case-specific.  The presence or absence of bias has 
relevance because it speaks to whether a witness has an 
interest in this case, or a particular affinity or dislike for this 
party.  See United States v. Abel, 

, 51 (1984) ("A 
successful showing of bias on the part of a witness would have 
a tendency to make the facts to which he testified less 
probable in the eyes of the jury than it would be without such 
testimony.");  United States v. Akitoye, 

, 225 (1st 
Cir. 1991) (if the cross-examiner may bring out facts tending 
to show bias, "it follows that the cross-examiner can be 
allowed some latitude, in an appropriate case, to bring out the 
absence of bias-producing facts and circumstances, thereby 
strengthening the credibility of a helpful witness").  In light 
of its disparate focus, we do not see why Rule 608(a) would 
apply.

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

made by the district court in this case was harmless.  When 
reviewing non-constitutional trial error, we apply the stan-
dard articulated in Kotteakos v. United States, asking wheth-
er we can say "with fair assurance, after pondering all that 
happened without stripping the erroneous action from the 
whole, that the judgment was not substantially swayed by the 
error...."  

, 765 (1945).  In so doing, we cannot 
merely replicate our previous sufficiency-of-the-evidence in-
quiry;  rather, we ask "even so, whether the error itself had 
substantial influence" on the jury.  

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

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

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

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

          What the defendants did here, we submit, should not be 
     tolerated.  You will decide by your verdict what the standard 
     is.  The defendants are guilty beyond a reasonable doubt of the 
     charges contained in the indictment.
     
          The question is, do you want lobbyists for regulated industry 
     to give anything to an official that regulates your food supply 
     when so much is at stake?
     
Measuring the potential prejudicial effect of these allegedly 
improper statements with reference to the entire proceeding, 
as the Supreme Court instructed in United States v. Young, 

, 11-12 (1985), we cannot say that Schaffer was 
unfairly prejudiced.

     To determine whether improper prosecutorial statements 
prejudiced a defendant's right to a fair trial, this court 
generally considers four separate factors.  We examine:  (i) 
the severity of the misconduct;  (ii) the measures taken to 
cure the misconduct;  (iii) the certainty of conviction absent 
the improper misconduct, see United States v. Perholtz, 

, 361 (D.C. Cir. 1988);  and (iv) the centrality of the 
issue affected by the error.  See United States v. Gartmon, 

, 1026 (D.C. Cir. 1998).  Reviewing the trial 
record as a whole, as required by this fact-intensive inquiry, 
we do not believe that the jury was substantially swayed by 
the independent counsel's isolated missteps.  In their opening 
and closing remarks, both the prosecution and the defense 
continually stressed to the jury the need to link the things of 
value with an intent to influence Secretary Espy.  See, e.g., 
6/26/98 Tr. at 100, 103, 115, 125, 130, 135;  6/25/98 Tr. at 1703, 
1717, 1726, 1729, 1737, 1742, 1766.  The district court did the 
same in its instructions to the jury, repeatedly emphasizing 
that Schaffer could not be found guilty of the offenses 
charged unless he acted with the requisite intent to influence 
the Secretary.  See 6/26/98 Tr. at 1778-80, 1788.  From start 
to finish, this question of intent had center stage at the trial.  
Because we have no doubt that the jury understood and 
deliberated on the basis of the proper legal standard, we 
cannot say that any of the statements in question had any 
effect on the jury verdict, substantial or otherwise.

                         III. Conclusion

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

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

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

                                                      So ordered.

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

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

(1999).  There-
fore, I would uphold the district court's judgment of acquittal 
on each count of conviction.

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

     In Sun-Diamond, the Supreme Court concluded the 
phrase "for or because of any official act" in the gratuity 
provision "means 'for or because of some particular official act 
of whatever identity'--just as the question 'Do you like any 
composer?'  normally means 'Do you like some particular 
composer?' 

.  The Court acknowledged 
that "[i]t is linguistically possible, of course, for the phrase to 
mean 'for or because of official acts in general, without 
specification as to which one'--just as the question 'Do you 
like any composer?'  could mean 'Do you like all composers, 
no matter what their names or music?' "  

stated, however, that "the former seems to us the more 
natural meaning."  

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

(quoting 18 U.S.C. 
s 201(b)(1), (2)).

     In Sun-Diamond, the Supreme Court compared section 
201(b)'s bribery provision with section 201(c)'s gratuity provi-
sion and concluded that "[t]he distinguishing feature of each 
crime is its intent 

.  The Court 
noted that for a violation of the bribery provision, "there must 
be a quid pro quo--a specific intent to give or receive 
something of value in exchange for an official 

(emphasis original), while the gratuity provision "re-
quires only that the gratuity be given or accepted 'for or 
because of' an official act."  

 The Court 
took for granted that the more stringent quid pro quo intent 
requirement for bribery required a connection between the 
thing given and a specific act or omission by the public 
official.  The only disputed question in the Court's eyes was 
whether the same connection was required to satisfy the more 
lenient intent standard of the gratuity proscription in section 
201(c).  The Court determined that it was, admonishing that 
"a statute in this field that can linguistically be interpreted to 
be either a meat axe or a scalpel should reasonably be taken 

to be the 

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

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

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

does not 
govern poultry.

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