United States v. Blackley, Ronald H.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 19, 1998 Decided January 26, 1999

No. 98-3036

United States of America,

Appellee

v.

Ronald H. Blackley, Sr.,

Appellant

Appeal from the United States District Court

for the District of Columbia

(No. 97cr00166-01)

Sheldon Krantz argued the cause for appellant. With him
on the briefs were Elizabeth R. Dewey and Barbara Row-
land.

Charles M. Kagay, Chief Appellate Counsel, Office of Inde-
pendent Counsel, argued the cause for appellee. With him on
the brief were Donald C. Smaltz, Independent Counsel, Wil-
liam F. Fahey, Counselor, Barry Coburn, Assistant Indepen-

dent Counsel, and Trent B. Harkrader, Associate Indepen-
dent Counsel.

Before: Williams, Ginsburg and Rogers, Circuit Judges.

Opinion for the Court filed by Circuit Judge Williams.

Williams, Circuit Judge: Ronald Blackley, onetime Chief
of Staff to Secretary of Agriculture Michael Espy, was con-
victed of three counts of making false statements relating to
over $22,000 that he received from individuals regulated by
the Department of Agriculture. Blackley was investigated
and prosecuted by the Office of Independent Counsel appoint-
ed to investigate allegations of gratuities received by Secre-
tary Espy. On appeal, Blackley's principal claim is that the
crimes charged lie outside the Independent Counsel's juris-
diction. Rejecting that and Blackley's other contentions, we
affirm.

* * *

On August 8, 1994 the Attorney General applied under 28
U.S.C. s 592(c)(1) to the special division of the United States
Court of Appeals for the District of Columbia for the purpose
of appointing independent counsels, see 28 U.S.C. s 49 (the
"Special Division"), seeking appointment of an independent
counsel "to investigate whether any violations of federal
crimes were committed by Secretary Espy, and to determine
whether prosecution is warranted." The Special Division's
September 9, 1994 order (the "original order") appointed
Donald C. Smaltz as Independent Counsel, with the authority
and jurisdiction to:

[I]nvestigate to the maximum extent authorized by the
Independent Counsel Reauthorization Act of 1994 wheth-
er [Secretary Espy] has committed a violation of any
federal criminal law ... relating in any way to the
acceptance of gifts by him from organizations or individu-
als with business pending before the Department of
Agriculture.

September 9, 1994 Order of Special Division at 1. The
original order also gave the Independent Counsel jurisdiction
over crimes "connected with" this core jurisdiction. We save
for later the precise wording of these additional grants.

The Independent Counsel later applied to the Special Divi-
sion asking for a further "referral" under 28 U.S.C. s 594(e).1
On April 1, 1996, over the objection of the Attorney General,
the Special Division approved the application and issued an
order stating that the Independent Counsel had jurisdiction
to:

[I]nvestigate and prosecute any violation of any federal
law ... related to any application, appeal, or request for
subsidy made to or considered by the United States
Department of Agriculture, for which Secretary of Agri-
culture Alphonso Michael (Mike) Espy and/or his Chief
of Staff Ronald Blackley intervened in the application,
approval, or review process.

April 1, 1996 Order of Special Division. In doing so, the
Special Division said that it was "interpreting, but not ex-
panding, the independent counsel's original prosecutorial jur-
isdiction." In re Espy, 80 F.3d 501, 507 (D.C. Cir. Spec.
1996). It found that "the new matter is demonstrably related
to the factual circumstances underlying the Attorney Gener-
al's original investigation and request for appointment of an
independent counsel." Id. at 508.

On April 22, 1997 the Independent Counsel secured an
indictment of Blackley on three counts of making false state-
ments in violation of 18 U.S.C. s 1001. The indictment
alleged that Blackley, while serving as Chief of Staff at the
U.S. Department of Agriculture, received more than $22,000
from individuals regulated by the Department, and then lied
about it on three separate occasions: once on his Executive

__________
1 28 U.S.C. s 594(e) states that "[a]n independent counsel may
ask the Attorney General or the [Special Division] to refer to the
independent counsel matters related to the independent counsel's
prosecutorial jurisdiction, and the Attorney General or the [Special
Division], may refer such matters."

Branch Public Financial Disclosure Form, SF 278, and then
twice in sworn statements to the inspectors general of the
Department and the United States Agency for International
Development ("USAID"). In the sworn statement to the
Department of Agriculture inspector general Blackley said,

At the time I became chief of staff for Secretary Espy
..., I severed myself from all of my prior businesses and
financial interests. I no longer had any active connection
with [various named companies] or any other company or
business interest in Mississippi or elsewhere. I received
absolutely no money or remuneration of any kind from
any of these companies for work performed in 1993 after
I became chief of staff.... The only income I have
earned during the period during the period from January
21, 1993 to the present date, with the exception of the
sale of my former residence in Greenville, is my salary
from USDA.

And in a sworn statement before the USAID, he said,
"After I ended my consulting business and entered U.S.
Government service, I did not receive any remuneration of
any kind from [a named client] or anyone else."

A jury found Blackley guilty on all three counts, and the
district court sentenced him to 27 months imprisonment and
three years of supervised release.

* * *

A.Jurisdiction of the Independent Counsel2

Defendant's first jurisdictional claim rests solely on the fact
that the text of the indictment fails to lay out the trail

__________
2 Blackley in part appears to cloak his challenge to the jurisdic-
tion granted by the original order in an attack on the Special
Division's April 1, 1996 referral, as he did before the trial court (see
"Motion to Dismiss Indictment" at 10-11). But as the district court
appears to have read the challenge as going at least in part to the
scope of the original order, see United States v. Blackley, 986

connecting the original grant of jurisdiction to the charged
violations. As Rule 7(c)(1) of the Federal Rules of Criminal
Procedure specifies that an indictment must contain "a plain,
concise and definite written statement of the essential facts
constituting the offense charged," we can imagine an argu-
ment that language setting out the connective trail would be
offensive surplusage, which the court might strike under Rule
7(d). But the reverse--that such language is required--
seems without foundation. Defendant cites no case, rule or
statute supporting the claim, and points to no inconvenience
that the omission presents for him. In a case where the
connection between the relevant referral or referrals and the
facts set forth in the indictment or developed at trial was
unclear, presumably the defendant could secure dismissal of
the indictment if the independent counsel failed, on motion to
dismiss for want of jurisdiction, to make a record of the
necessary connective links. Cf. Fed. R. Crim. P. 16(a)(2)
(limiting required disclosure of prosecutor's investigative ma-
terials in ordinary case). But that possibility is no basis for
cluttering up the indictment.

More substantively, Blackley argues that the indictment is
not within the jurisdiction granted in the Special Division's
original order. The Independent Counsel evidently regards
that as the proper jurisdictional question; he makes no claim
that the April 1996 referral expanded his jurisdiction. This
view, seemingly shared by both parties, tracks the position of
the Special Division itself, which, as we noted, said in making
the April 1996 referral that it was "interpreting, but not
expanding, the independent counsel's original prosecutorial
jurisdiction, ... mak[ing] explicit the independent counsel's
jurisdiction over a matter that was implicitly included in the
original grant." In re Espy, 80 F.3d at 507. Nor does the
Independent Counsel make the argument, which we consider
in United States v. Hubbell, No. 98-3080 (D.C. Cir. Jan. 26,
1999) released today, that the Special Division's interpretation
of the original order, set forth in the later referral, is entitled

__________
F. Supp. 607, 610 (D.D.C. 1997), we regard the relation between the
indictment and the original order as properly before us.

to deference. Accordingly, we review de novo the relation-
ship between the indictment and the jurisdictional grant of
the original order.3

In analyzing the relation between the offenses charged
here and the language of the original order (including both its
statement of the core offenses and the various ancillary
clauses), Blackley frequently invokes a phrase used by the
Supreme Court in Morrison v. Olson, 487 U.S. 654 (1988),
"demonstrably related." We are not at all sure that the
adverb "demonstrably" adds much to the concept of related-
ness, other than perhaps to say that if the relation depends
on some facts, then the facts may be litigated. Whatever its
force, however, the phrase was not used by the Court in
relation to the present issue at all. The Court used it solely
in connection with the anterior issue of the relation between
the Attorney General's initial investigation and presentation
to the Special Division, on the one hand, and that Division's
original grant of authority to an independent counsel, on the
other. In resisting a constitutional attack on the vesting of
power in the Special Division, the Court observed:

In order for the Division's definition of the counsel's
jurisdiction to be truly "incidental" to its power to ap-
point, the jurisdiction that the court decides upon must
be demonstrably related to the factual circumstances
that gave rise to the Attorney General's investigation and
request for the appointment of the independent counsel
in the particular case.

Id. at 679. Here, of course, the defendant is not challenging
the constitutionality of the Special Division's grant of jurisdic-
tion, but the fit of the present prosecution within that grant.
Cf. United States v. Tucker, 78 F.3d 1313, 1321 (8th Cir. 1996)
(holding that the "demonstrably related" language did not

__________
3 As the Independent Counsel only marginally invokes the
April 1996 referral as support for his jurisdiction over the crimes
charged in the indictment, and we in no way rely on it in upholding
the indictment as within the Independent Counsel's jurisdiction,
Blackley's contention that the district court wrongly failed to review
that referral itself appears entirely moot.

govern the Independent Counsel's jurisdiction under a refer-
ral).

As we mentioned above, a number of clauses of the original
order explicitly authorize the Independent Counsel to go
beyond crimes possibly committed by Secretary Espy in
accepting gifts from persons with matters pending before the
Department. Besides power to look into those, the order
gave the Independent Counsel jurisdiction to:

[1] ... investigate other allegations or evidence of viola-
tion of any federal criminal law ... by any organization
or individual developed during the Independent Coun-
sel's investigation referred to above and connected with
or arising out of that investigation.

[2] ... investigate any violation of 28 U.S.C. s 1826, or
any obstruction of the due administration of justice, or
any material false testimony or statement in violation of
federal criminal law, in connection with any investigation
of the matters described above.

[3] ... seek indictments and to prosecute any organiza-
tions or individuals involved in any of the matters de-
scribed above, who are reasonably believed to have com-
mitted a violation of any federal criminal law arising out
of such matters, including organizations or individuals
who have engaged in an unlawful conspiracy or who have
aided or abetted any federal offense.

[4] ... fully investigate and prosecute the subject matter
with respect to which the Attorney General requested
the appointment of independent counsel, as hereinbefore
set forth, and all matters and individuals whose acts may
be related to that subject matter, inclusive of authority to
investigate and prosecute federal crimes ... that may
arise out of the above described matter, including perju-
ry, obstruction of justice, obstruction of evidence, and
intimidation of witnesses.

September 9, 1994 Order of Special Division at 2, 3.

It is not claimed that any of the order's language is
inconsistent with the Special Division's statutory authority.

Nor do we think it could be claimed. Section 593(b)(3) states
that the Division is to define the counsel's jurisdiction in a
way that "shall assure that the independent counsel has
adequate authority to fully investigate and prosecute the
subject matter with respect to which the Attorney General
has requested the appointment of the independent counsel,
and all matters related to that subject matter." 28 U.S.C.
s 593(b)(3) (emphasis added). Further, the jurisdiction "shall
also include the authority to investigate and prosecute Feder-
al crimes ... that may arise out of the investigation or
prosecution of the matter with respect to which the Attorney
General's request was made, including perjury, obstruction of
justice, destruction of evidence, and intimidation of wit-
nesses." Id. (emphasis added). The second clause appears
to make clear that the Independent Counsel's jurisdiction is
to encompass criminal activity concealing, or otherwise
thwarting the Independent Counsel's investigation or prose-
cution of, crimes that satisfy the first "related to" clause. In
the Division's order here, ancillary clauses [1] and [4] appear
to track the first of the provisions in s 593(b)(3), while that of
ancillary clauses [2] and [4] appear to implement the second.

Blackley proposes an interpretation of the order's jurisdic-
tional scope that would allow little or no discernible weight to
any of the ancillary language, except for that relating to
crimes arising out of the investigation or prosecution itself,
such as perjury or obstruction of justice. With that excep-
tion, he evidently reads the language as limiting the Indepen-
dent Counsel to possible crimes committed in Espy's own
acceptance of gifts.

This clearly cannot be. The word "relation" comprises
more than identical twins. And just as a person is "related"
not only to his parents and children, but to grandchildren and
grandparents, the fact that a crime is in some sense a verbal
step or two away from the core crime cannot alone render it
unrelated. As we have said, the "central purpose of the
special prosecutor provisions of the [Ethics in Government
Act] is to permit the effective investigation and prosecution of
high level government and campaign officials." United States
v. Wilson, 26 F.3d 142, 148 (D.C. Cir. 1994) (emphasis added).

Discussing the "related to" language of s 593(b)(3), we noted
that "the scope of a special prosecutor's investigatory juris-
diction can be both wide in perimeter and fuzzy at the
borders." Id.

Thus, the jurisdiction to look into matters "related to" the
core areas of initial inquiry must allow the Independent
Counsel enough leeway to investigate and prosecute such
matters as are appropriate for him to effectively carry out his
mandate. We think such effectiveness can be secured only if
the Independent Counsel is at least able to pursue crimes by
the original target's close associates in the field of activity
under investigation, including crimes that either are of the
same sort as the originally specified set of crimes or are
ancillary to the commission or concealment of such crimes.
Whether an independent counsel has any further scope we
need not decide here; obviously his jurisdiction is limited, but
this case is squarely within the limits.

The position description for Blackley as Chief of Staff to
Secretary Espy characterized him as the Secretary's "alter
ego,"; and he played that role in the very activity--running
the Department--in which Espy's alleged offenses were com-
mitted. His alleged non-disclosures were of sums received
from parties doing business with the Department, thus paral-
leling the Espy allegations. Furthermore, concealment of
such receipts, especially in the context of a financial disclo-
sure form intended to bring suspicious influences to the
surface and in response to questions of inspectors general,
tends not only to prevent discovery of underlying crimes such
as receipts of bribes or gratuities, but also to reflect the
perpetrator's consciousness of guilt in those receipts.

The proximity of the relation here is underscored by De-
partment of Justice policy (the subject of a separate challenge
by Blackley). Justice allows its attorneys to use prosecutions
under s 1001 as a vehicle for pursuing public corruption
crimes:

[U]nderlying misconduct is frequently the reason for the
defendant's indictment [for false statements] with section
1001 merely being the vehicle for prosecution because of

proof problems with more obviously applicable statutes
... False information on financial disclosure forms
frequently masks such underlying offenses as receipt of
bribes or gratuities, or conflicts of interest. When prose-
cution for those offenses is not practicable, section 1001
is an alternative.

9A DOJ Manual at 9-1938.122-23 (Supp. 1988) (emphasis
added). This confirms us in finding that the relation between
Blackley's s 1001 violations and the core charges set out in
the original order is tight enough to meet the "related to"
criterion of s 593(b)(3) and the order itself.

Included among Blackley's jurisdictional attacks is his
claim that the Independent Counsel violated s 594(f)(1) of the
Ethics in Government Act, which provides that an indepen-
dent counsel "shall, except to the extent that to do so would
be inconsistent with the purposes of this chapter, comply with
the written or other established policies of the Department of
Justice respecting enforcement of the criminal laws." He
claims that here the Independent Counsel violated DOJ policy
guidelines, which provide that DOJ attorneys should not
prosecute an Ethics in Government Act case under s 1001
"unless the nondisclosure conceals significant underlying
wrongdoing." 9A DOJ Manual at 9-1938.123 (1988). Detect-
ing a transgression of the Manual, Blackley argues that it
somehow undermines the prosecutorial jurisdiction of the
Independent Counsel.

We think Blackley has missed the real defect here--the
lack of any cause of action or remedies for defendants like
him under the Manual or s 594(f)(1). The Manual itself says
that it "is not intended to confer any rights, privileges or
benefits on prospective or actual witnesses or defendants. It
is also not intended to have the force of law or of a United
States Department of Justice directive." 9A DOJ Manual at
9-1938.3. As defendant implicitly acknowledges, violations of
Manual policies by DOJ attorneys or other federal prosecu-
tors afford a defendant no enforceable rights. See, e.g.,
United States v. Kember, 648 F.2d 1354, 1370 (D.C. Cir.

1980); United States v. Craveiro, 907 F.2d 260, 263-64 (1st
Cir. 1990).

Blackley argues, however, that here the DOJ policy is
backed by a statute. While that is true in a sense, it misses
the point. In the interest of having the target of an Indepen-
dent Counsel's prosecution treated no worse than an ordinary
defendant, s 594(f)(1) subjects the Independent Counsel to
the same guidelines. See S. Rep. No. 97-496 (1982), quoted
at H. Rep. No. 103-224, 103rd Cong., 1st Sess. 1993, 1993 WL
302057 at *20 (special prosecutor should act so as to assure
that "treatment of officials is equal to that given to ordinary
citizens under similar circumstances"). Thus if the Manual
explicitly states that it confers no substantive rights on the
defendant, the parallelism sought to be achieved by
s 594(f)(1) suggests that the defendant here should also be
unable to escape conviction by claiming a violation of the
policy.

Further, the legislative history suggests that Congress
intended that the consequence of a failure to follow these
policies would be for the Independent Counsel to explain his
decision, not for the guilty defendant to be set free:

In determining whether it is possible to comply with
these policies, the [Independent Counsel] should be guid-
ed by his perception of fundamental fairness and of what
is required to conduct the investigation conscientious-
ly.... If he does deviate from established practices of
the Department, the [Independent Counsel] should thor-
oughly explain his reasons for doing so in his report to
the court at the conclusion of his investigation.

S. Rep. No. 97-496 (1982), quoted at H. Rep. No. 103-224,
103d Cong., 1st Sess. 1993, 1993 WL 302057, at *20. Regard-
less of the possibility of other remedies under s 594(f)(1), as
to which we express no opinion, nothing in the language of
the provision or the structure of the Ethics in Government
Act suggests that the defendant should be able to escape a
sanction otherwise due.

B.The Sufficiency of the Indictment

Blackley says the indictment didn't adequately notify him
of the nature of the charges against him. In particular, he
argues that count one, which charged him with failure to
disclose on his SF 278 for the year 1993 some $22,025
received that year, simply enumerated the 11 checks through
which the money was received (with their dates and amounts),
plus all four categories on the form ("Assets and Income,"
"Gifts, Reimbursement and Travel Expenses," "Liabilities,"
and "Agreements or Arrangements"). Thus it did not con-
nect any of the checks to a specific box on the form. Blackley
makes a similar argument as to the other counts, saying that
the indictment left him uncertain as to exactly which of his
various denials was contradicted by his receipt of the $22,025.

Blackley cites United States v. Nance, 533 F.2d 699 (D.C.
Cir. 1976). There the defective counts of the indictment
accused the defendant of falsely making the "following repre-
sentations," but (amazingly) the representations did not fol-
low; none was alleged. Id. at 700 n.3. The present indict-
ment plainly says that Blackley in his SF 278 falsely failed to
disclose specified items of income. Nance gets Blackley
nowhere.

But is it a fatal defect for an indictment to charge a failure
to disclose and to assert four categories in the conjunctive,
rather than specifying which box each check belonged in?
Where the indictment alleges only one offense, it is proper to
charge the different means for committing that offense in the
conjunctive. See Joyce v. United States, 454 F.2d 971, 976
(D.C. Cir. 1971); United States v. UCO Oil Co., 546 F.2d 833,
838 (9th Cir. 1976); Fed. R. Crim. P. 7(c)(1) (indictment may
allege that defendant committed offense "by one or more
specified means"). In this case, the categories on the form
simply enumerate the various ways the defendant could vio-
late the disclosure requirements of the SF 278 form, and
proof of any one of those allegations could sustain a convic-
tion. See UCO Oil Co., 546 F.2d at 838. And the proceeding
on any count "will bar further prosecution on all matters
alleged therein." Joyce, 454 F.2d at 977 (emphasis added).

So the charging in the conjunctive here was proper and
satisfies the two requirements for an indictment set out in
Russell v. United States, 369 U.S. 749 (1962)--telling the
defendant what "he must be prepared to meet" and showing
to what extent he might in any future proceeding plead
former acquittal or conviction. Id. at 763-64.

Blackley also argues that none of the counts pleaded any
duty to disclose the $22,025. But in counts two and three the
indictment spells out what can only be regarded as affirma-
tive misstatements; and in count one the indictment obviously
supplied the duty to disclose by spelling out the reporting
requirements of SF-278 and explicitly stating that the defen-
dant was required by law to respond truthfully to these
requirements.

C.Adequacy of Jury Instructions

18 U.S.C. s 1001 criminalizes certain concealments from, or
misrepresentations to, the government. The judge charged
the first element in the following terms, the substance of
which defendant does not dispute:

The first element that you must find beyond a reason-
able doubt is falsification or concealment. To find the
defendant guilty of violating this statute, you must find
that for each count charged in the indictment, the defen-
dant either:

a. falsified, concealed, or covered up by a trick,
scheme, or device a fact; or

b. made a false, fictitious or fraudulent statement or
representation; or

c. made or used a false writing or document contain-
ing a false, fictitious, or fraudulent statement or repre-
sentation.
You may find that the defendant performed more than
one of these acts through a single course of action.

Blackley objects that this was error, because in its unanimi-
ty instruction the court failed to advise the jury that it had to
find unanimously that each statement of the defendant violat-
ed a specific form of falsification, leaving it possible that

jurors rested their verdict on different forms. The argument
simply ignores the language of the charge. Immediately
after the passage quoted, the judge said:

However, to render a guilty verdict, you must unani-
mously agree on at least one of these three acts.

Under any reasonable reading of this instruction, the jury
would understand that it must agree unanimously on which of
the three the defendant violated.

The defendant's second argument, overlapping with his
first, is that the district court erred in refusing to give the
jury an instruction that to find the defendant guilty of con-
cealment under s 1001, it must find that Blackley's failure to
report the various checks he received violated a legal duty.
Blackley contends that the legal duty to disclose is an element
of the concealment prong of s 1001 that the government must
prove to the jury. It is true that every element of a crime of
which a defendant is charged should ordinarily be submitted
to a jury. United States v. Gaudin, 515 U.S. 506 (1995). It
is also true that some circuits have held that the government
must generally prove that a defendant has a legal duty to
disclose before it can convict for concealment under s 1001.
See, e.g., United States v. Irwin, 654 F.2d 671, 678-79 (10th
Cir. 1981). But it is uncertain, since Gaudin, whether this
judicially created requirement is an element of the crime to
be presented to the jury or a purely legal determination to be
decided by the court. Cf. United States v. Zalman, 870 F.2d
1047, 1055 (6th Cir. 1989) (pre-Gaudin case holding duty to
disclose under s 1001 is a matter of law for the judge and not
the jury). At least one post-Gaudin case has held that
materiality itself, in certain criminal contexts such as tax
crimes, is a purely legal question that is not to be submitted
to the jury. See United States v. Klausner, 80 F.3d 55, 61
(2d Cir. 1996) (distinguishing materiality in Gaudin as a
mixed law and fact issue).

Assuming the duty to disclose is an element of concealment
to be charged to the jury under s 1001, the district court's
refusal to use Blackley's proposed charge would still not be
reversible. Under circuit law, the absence of a jury instruc-
tion on an element of the crime is not reversible error where

it is inconceivable that the jury could have found the defen-
dant guilty of the crime without making a finding as to the
omitted element. See United States v. Winstead, 74 F.3d
1313, 1321 (D.C. Cir. 1996); see also United States v. Parme-
lee, 42 F.3d 387, 393 (7th Cir. 1994)(holding that instructional
error on missing element is harmless if "no rational jury
could have found the defendant[ ] guilty of violating [the
statute] without also making the proper finding as to the
missing element"); Redding v. Benson, 739 F.2d 1360, 1363-
64 (8th Cir. 1984). Here, Blackley argued to the jury various
forms of conceivable confusion in the SF 278 and in the
statements to the inspectors general that might make his
falsifications non-willful, arguments that, given the judge's
instruction that the jury must acquit Blackley if they found
that he had acted in good faith, the jury had to reject to find
him guilty. The judge also instructed the jury on Blackley's
defense theory that he did not believe he was obliged to
disclose the information he allegedly concealed, instructions
that clearly placed before the jury the question of whether
Blackley had a legal duty to disclose the 11 checks on his
SF-278. Thus, even if there was error in not submitting the
duty-to-disclose instruction to the jury, it is unimaginable that
the jury could have found Blackley guilty of concealment in
count one without first finding a duty to disclose.

Although the misrepresentations in counts two and three
are the plainest kind of free-standing, affirmative misstate-
ments, the district court's instructions nominally allowed the
jury to convict under the concealment theory of s 1001,
though without mention of a need to find a duty to disclose.
But given the explicit and affirmative character of the misrep-
resentation, and the absence of any reliance by the prosecutor
on questions posed by the Inspectors General (i.e., a claim
that it was the nature of any such question that made
Blackley's statements into concealments), the only way "con-
cealment" could have come into the jury's deliberations on
those counts would have been as a convoluted version of
affirmative misrepresentation. For example, when someone
swears that "the only money [he has] earned from January
21, 1993 to the present date [with an irrelevant exception] is
[his] salary from the USDA," he is implicitly concealing any

other earnings. Thus, no rational jury could have concluded
that Blackley was guilty under counts two or three without
simultaneously finding that he made affirmatively false state-
ments.

D.The Departure from the Sentencing Guidelines

Finally Blackley objects to his sentence of 27 months,
arguing that the district court made an upward departure on
invalid grounds. The court found that Blackley should be
sentenced under the fraud guideline, s 2F1.1 of the United
States Sentencing Guidelines, which carries a base level of
six. It also found that the specific offense characteristic of
"more than minimal planning" applied, and increased Black-
ley's offense level by two, for a total of eight. It then made
an eight-level upward departure, relying on a mix of factors
that it believed were not considered by the guidelines in this
context. These included the facts that (1) the defendant was
a high-level official when he received monies from individuals
regulated by the Department; (2) he was informed that he
was not allowed to receive such payments; and (3) he twice
lied under oath about their receipt.

As Blackley concedes, the fraud guidelines make no explicit
provision for an adjustment for offenses committed by public
officials. But he insists that the explicit provision for such an
adjustment in connection with crimes involving the receipt of
gratuity or the deprivation of the right to honest services
implies a rejection of any comparable adjustment for fraud.
U.S.S.G. ss 2C1.2, 2C1.7. We think the inference quite
weak, however. First, the fraud guidelines explicitly contem-
plate upward departures in circumstances that fall outside the
main core. See U.S.S.G. s 2F1.1, Application Notes 10, 13.
And in their more general treatment of departures the guide-
lines note the impossibility of covering all bases:

Circumstances that may warrant departure from the
guidelines pursuant to this provision cannot, by their
very nature, be comprehensively listed and analyzed in
advance.

U.S.S.G. s 5K2.0. Further, the Sentencing Commission's
focus on high status in the government is understandable for

offenses where its occurrence, though far from invariable, is
salient. As high-level official status does not seem especially
salient in fraud generally, the Commission's failing to treat it
explicitly in that context implies little. See Shook v. District
of Columbia Fin. Responsibility and Management Assis-
tance Auth., 132 F.3d 775, 782 (D.C. Cir. 1998) (observing
that the force of the expressio unius inference depends entire-
ly on context). The case is thus radically different from
United States v. Sun-Diamond Growers, 138 F.3d 961 (D.C.
Cir. 1998), in which we overturned an upward departure
based on the high rank of the official who received a gratuity,
the Secretary of Agriculture, on the ground that the Guide-
lines themselves, s 2C1.2, had covered precisely that. We
found no material difference in rank or sensitivity between
the Secretary and various officials explicitly enumerated in
the associated Application Note as instances covered by the
explicit provision for departure. Id. at 976.

Although at first blush the number of levels seems high,
the departure made Blackley's sentence more closely approxi-
mate what would follow for kindred crimes committed by high
government officials under provisions such as s 2C1.2 itself.
We find the departure well within the broad discretion al-
lowed the district court in such matters. See Koon v. United
States, 518 U.S. 81, 98 (1996).

* * *

Defendant also claims a violation of Rule 404(b) of the
Federal Rules of Evidence, but the claim is too weak to merit
discussion. And he argues the sufficiency of the evidence.
On that issue he devotes his brief almost entirely to evidence
that, if believed and given great weight, might have enabled a
jury reasonably to acquit. Perhaps so. But the possible
reasonableness of acquittal is not, of course, the test--it is
whether a jury could reasonably convict, as here it could.

The defendant's conviction and sentence are confirmed.

So ordered.