IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 92-2600
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United States of America,
Plaintiff-Appellee,
versus
Richard J. Nevers,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
(October 29, 1993)
Before JOHNSON, WIENER and DeMOSS, Circuit Judges.
JOHNSON, Circuit Judge:
This case calls for the Court to determine whether the federal
conflict-in-interest statute is unconstitutionally vague. Defen-
dant Nevers, a trade specialist for the United States Department of
Commerce, attempted to persuade a potential Commerce Department
client, Murray Studley, to grant World Consultants International
("WCI") the exclusive right to sell Studley's products abroad.
Because Nevers knew that his wife had a financial interest in WCI,
Nevers was indicted for and convicted of violating the conflict-in-
interest statute. Nevers appeals his conviction. Finding no
reversible error, we affirm.
I. Facts and Procedural History
Richard Nevers was employed by the Department of Commerce for
almost twenty years.1 During the last nine of those twenty years,
Nevers served as a trade specialist2 in the International Trade
Administration ("ITA"), a sub-agency of the Department of Commerce.
In April of 1989, Murray A. Studley sought the ITA's assistance in
selling 600 buses in other countries. Nevers was assigned as
Studley's counselor, and the two men met several times. During
their fourth meeting, which occurred on Saturday, April 22, 1989,
Nevers presented Studley with a contract which purported to give
1
The Department of Commerce is part of the Executive Branch
of the United States Government.
2
A trade specialist is required to assist public businesses
in their efforts to export goods or services. Although a trade
specialist's primary purpose is to provide free counseling on the
mechanics and techniques of international trade, specialists also
refer their clients and potential clients (together referred to
as "clients") to other organizations which have information on
such subjects as potential business contacts or international
attorneys. Longstanding ITA rules, however, have prohibited
trade specialists from specifically recommending a particular
firm or company to their clients. Additionally, recommending a
firm or company in which the trade specialist or his spouse has a
financial interest has been specifically forbidden by the ITA
Code of Ethics and Department of Commerce rules. Under the
rules, if a client asks a trade specialist to recommend a spe-
cific company, the specialist must provide the client with a list
of companies and an explanation that recommending a particular
company is not allowed.
According to Nevers' supervisor, James Cook, these rules
have been in existence for at least twenty-six years. Cook
testified that the employees under his supervision are regularly
provided information on these rules during their periodic train-
ing. Cook also averred that he routed memoranda which explained
expansions or revisions to these and other ITA rules to each
employee and maintained a Code of Ethics in the office for the
employees to review.
Because Nevers worked under Cook each of his nine years as a
trade specialist, he should have known that recommending a
specific company to his clients was forbidden.
2
WCI a two-year, exclusive right to sell the buses.3 Mr. Studley
declined to sign the agreement.4
Disgruntled with Nevers' assistance, Mr. Studley visited the
Texas Department of Commerce to obtain help. He informed his
counselor there about his experience with the ITA office, and the
counselor apprised the ITA regional director of Nevers' impropri-
eties. The regional director launched an in-depth investigation
into Studley's allegations. That investigation revealed that
Nevers' wife, Raquel, had incorporated WCI in 1983 and was the sole
officer, director, and employee of the company.
Nevers was later charged with violating the federal conflict-
in-interest statute. The district court found Nevers guilty of the
charged offense in May 1992 and sentenced him to three months'
imprisonment. Nevers appeals, arguing that the conflict-in-inter-
est statute is vague, that his indictment was inadequate, and that
the evidence against him was insufficient.
II. Discussion
A. Unconstitutionally Vague
Whether a criminal statute is void for vagueness is a question
of law which this Court reviews de novo. United States v. Helmy,
951 F.2d 988, 993 (9th Cir. 1992), cert. denied, 112 S. Ct. 2287;
3
Interestingly, the contract also required the parties to
"keep totally confidential any and all names, telephone numbers,
telex numbers and any other matters arising between the parties."
Government's Exhibit 1.
4
He instead voiced numerous concerns about the contract and
specifically asked Nevers for the names of the principals in-
volved in WCI. Nevers refused to answer Studley's questions.
3
United States v. Agnew, 931 F.2d 1397 (10th Cir. 1991), cert.
denied, 112 S. Ct. 237. A criminal statute is void for vagueness
under the Due Process Clause of the Constitution when it fails to
provide a person of ordinary intelligence fair notice of the
conduct it proscribes. United States v. Harriss, 347 U.S. 612, 617
(1954); see also City of Mesquite v. Aladdin's Castle, Inc., 455
U.S. 283, 289-90 (1982).
Defendant Nevers complains here that 18 U.S.C. § 208(a),5 the
conflict-in-interest statute, failed to provide him with "even a
modicum of notice as to what [it] proscribe[s]." We disagree.
The statute clearly and unambiguously prohibits executive branch
and independent agency officers and employees from substantially,
personally, and officially participating in any governmental
5
Section 208(a) reads:
Except as permitted by subsection (b) hereof, whoever,
being an officer or employee of the executive branch of
the United States Government, of any independent agency
of the United States, . . . participates personally and
substantially as a Government officer or employee,
through decision, approval, disapproval,
recommendation, the rendering of advice, investigation,
or otherwise, in a judicial or other proceeding,
application, request for a ruling or other
determination, contract, claim, controversy, charge,
accusation, arrest, or other particular matter in
which, to his knowledge, he, his spouse, minor child,
partner, organization in which he is serving as
officer, director, trustee, partner or employee, or any
person or organization with whom he is negotiating or
has any arrangement concerning prospective employment,
has a financial interest——
Shall be fined not more than $10,000, or
imprisoned not more than two years, or both.
18 U.S.C. § 208(a).
4
activity in which he knows that he, his spouse, or another speci-
fied person has a financial interest.6
Our reading of section 208 comports fully with the congressio-
nal intent. In crafting the conflict-in-interest statute, Congress
intended to expand the purview of the statute's predecessor, 18
U.S.C. § 434.7 The Senate report explained that section 434 was
fundamentally defective in that it was too narrow, allowing public
officials to engage in a large number of activities which were
"wholly incompatible with the duties of public office." SENATE
COMM. ON THE JUDICIARY, BRIBERY, GRAFT AND CONFLICTS OF INTEREST, S. REP. NO.
2213, 87th Cong., 2d Sess. (1962), reprinted in 1962 U.S.C.C.A.N.
3852. Congress therefore broadened the provision to "embrace[] any
6
Each court of appeals reviewing the statute has decided as
we do. See, e.g., United States v. Hedges, 912 F.2d 1397, 1403
(11th Cir. 1990); Webb v. Hodel, 878 F.2d 1252, 1255 (10th Cir.
1989); Federal Trade Commission v. American National Cellular,
868 F.2d 315, 319 (9th Cir. 1989); United States v. Lund, 853
F.2d 242, 244 (4th Cir. 1988); see also Young v. United States ex
rel. Vuitton Et. Fils S.A., 481 U.S. 787, 803 (1987).
7
The Supreme Court construed § 434 in United States v.
Mississippi Valley Generating Co, 364 U.S. 520 (1961). The Court
explained the objective of that conflict-in-interest provision:
The obvious purpose of the statute is to insure honesty
in the Government's business dealings by preventing
federal agents who have interests adverse to those of
the Government from advancing their own interests at
the expense of the public welfare. . . . The statute is
thus directed not only at dishonor, but also at conduct
that tempts dishonor. This broad proscription embodies
a recognition of the fact that an impairment of impar-
tial judgment can occur in even the most well-meaning
men when their personal economic interests are affected
by the business they transact on behalf of the Govern-
ment.
Id. at 548-49.
5
participation on behalf of the Government in a matter in which the
employee has an outside financial interest." Id. (emphasis added).
By enacting section 208, Congress achieved its goal of pro-
scribing governmental activity which conflicts with the financial
interests of executive branch and independent agency employees. We
find that that provision, though broad, is not vague.
B. Sufficiency of the Indictment
This Court reviews the sufficiency of the indictment de novo.
United States v. Green, 964 F.2d 365, 372 (5th Cir. 1992), cert.
denied, 113 S. Ct. 984. In Hamling v. United States, the United
States Supreme Court determined that an indictment is constitution-
ally sufficient if it complies with three requirements. 418 U.S.
87, 117 (1974); see also United States v. Arlen, 947 F.2d 139, 144
(5th Cir. 1991), cert. denied, 112 S. Ct. 1480. An adequate
indictment 1) enumerates each prima facie element of the charged
offense, 2) notifies the defendant of the charges filed against
him, and 3) provides the defendant with a double jeopardy defense
against future prosecutions. Hamling, 418 U.S. at 117; United
States v. Prince, 868 F.2d 1379, 1383 (5th Cir. 1989), cert.
denied, 110 S. Ct. 321. Nevers claims that the indictment in this
case failed to comply with the first and second Hamling require-
ments.
1. Elements of the Offense
Obviously, an indictment will satisfy the first Hamling
requirement if it sets forth each element of the punishable of-
fense. Hamling, 418 U.S. at 117; United States v. London, 550
6
F.2d 206, 210 (5th Cir. 1977). To secure a conviction against one
who has allegedly violated the conflict-in-interest statute, the
Government must prove beyond a reasonable doubt that the defendant
1) was an officer or employee of the executive branch or of an
independent agency, 2) participated personally and substantially in
his official, governmental capacity in a matter, and 3) knew that
he, his spouse, or another statutorily-listed person had a finan-
cial interest in that particular matter.
The indictment here provided:
During or about April of 1989, in the Houston Division of
the Southern District of Texas, and within the jurisdic-
tion of this Court, RICHARD J. NEVERS, defendant herein,
being an employee of the Executive Branch of the United
States Government, namely, a trade specialist for the
International Trade Administration, unlawfully and know-
ingly did participate personally and substantially as a
government employee in a particular matter involving a
prospective International Trade Administration client
known as Studley and Associates, through the recommenda-
tion of World Consultants International, a company in
which he then knew that his spouse, Raquel O. Nevers, had
a financial interest. [Violation: Title 18, United
States Code, Section 208.]
Even a cursory review of the indictment reveals that it suffi-
ciently enumerated each of the section 208 prima facie elements; it
clearly met the strictures of the first requirement.
2. Adequate Notice
Indictments satisfy the second Hamling requirement if they
describe the specific facts and circumstances surrounding the
offense in question in such a manner as to inform the defendant of
the particular offense charged. Hamling, 418 U.S. at 117-18. This
Court reviews indictments for practical, not technical errors,
Arlen, 947 F.2d at 145, and it will not reverse a conviction
7
because of an error in the indictment unless that error misled the
defendant to his or her prejudice. FED. R. CRIM. P. 7(c)(3); Green,
964 F.2d at 372.
In the case sub judice, Defendant Nevers has not claimed even
once that the indictment misled, prejudiced, or confused him. In
fact, during Nevers' pretrial hearing and arraignment, the district
court specifically asked Nevers if he understood the charge alleged
in the indictment. Nevers' attorney responded, "On behalf of Mr.
Nevers, Judge, he does understand. He's gone over the indictment."
Transcript Vol. 2 at 4.
Because Mr. Nevers has not alleged, let alone proved, that
the indictment prejudiced him, we hold that the indictment suffi-
ciently informed him of the charge lodged against him.
C. Sufficiency of the Evidence
Nevers finally assaults his conviction by complaining that the
Government's evidence insufficiently proved that he violated
section 208. Defendant Nevers specifically contends that the
Government failed to prove that he participated personally and
substantially in a "particular matter." This argument is not well
taken. Mr. Studley testified that during his fourth meeting with
Defendant Nevers, Nevers recommended that Studley sign a contract
which would have given WCI the exclusive right to sell the buses.
Defendant Nevers has not disputed that consulting with and making
recommendations to ITA clients was within the course and scope of
his employment. Additionally, the record is abundantly clear that
8
Nevers acted in his official capacity as trade specialist when he
consulted with Murray Studley during the April 22, 1989, meeting.
It is quite obvious to this Court that the "particular matter"
in this case was Nevers' official consultation with Studley on
April 22, 1989. The Government presented sufficient, indeed
uncontroverted, evidence that that consultation occurred and that
during that consultation, Nevers advised Studley to sign a contract
with WCI. Because Nevers' wife was the sole incorporator, officer,
director, and employee of WCI, Nevers' conduct during his fourth
consultation with Studley was in direct contravention of the
federal conflict-in-interest statute.
III. Conclusion
For the above enumerated reasons, the conviction of Defendant
Richard Nevers is hereby
A F F I R M E D.
9