                        United States Court of Appeals


                     FOR THE DISTRICT OF COLUMBIA CIRCUIT


                             Filed June 12, 1998

---------


                         Division for the Purpose of 

                       Appointing Independent Counsels 

                 Ethics in Government Act of 1978, As Amended

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                                   No. 94-2


                     In re:  Alphonso Michael (Mike) Espy

 


     Before:  Sentelle, Presiding, and Butzner and Fay, 
Senior Circuit Judges.

                                  O R D E R


     Upon consideration of the Office of Independent Counsel's 
Application for Referral of a Related Matter Pursuant to 28 
U.S.C. s 594(e), filed under seal on May 28, 1998, the Opposi-
tion of the United States to the Application for Referral, and 
the Reply of the Independent Counsel in Support of the 
Application, it is hereby

     ORDERED that the application for the referral of a relat-
ed matter is denied for the reasons set forth in the accompa-
nying opinion.  It is

     FURTHER ORDERED that the underlying filings of the 
Independent Counsel and the Attorney General, referenced 
above, remain under seal.

Per Curiam 
For the Court: 
Mark J. Langer, Clerk 
by Marilyn R. Sargent 
Chief Deputy Clerk



                        United States Court of Appeals


                     FOR THE DISTRICT OF COLUMBIA CIRCUIT


                             Filed June 12, 1998


                                   No. 94-2


                     In Re:  Alphonso Michael (Mike) Espy

 


                         Division for the Purpose of 

                       Appointing Independent Counsels 

                 Ethics in Government Act of 1978, as Amended


               On Application for Referral of a Related Matter

 


     Before:  Sentelle, Presiding, Butzner and Fay, Senior 
Circuit Judges.

     Opinion for the Special Court filed Per Curiam.

     Per Curiam:  On May 28, 1998, Independent Counsel Don-
ald C. Smaltz submitted an application for referral of a 
related matter under section 594(e) of the Ethics in Govern-
ment Act of 1978, as amended, 28 U.S.C. ss 591-599 (1994) 
("the Act").  For the reasons set forth below, the application 
is denied.

                                 INTRODUCTION


     This court appointed Donald C. Smaltz as Independent 
Counsel ("IC") in the matter In re Alphonso Michael (Mike) 
Espy, No. 94-2, on September 9, 1994, in response to the 
Attorney General's application under section 592(c)(1)(A) of 
the Act for the appointment of an independent counsel with 
the authority to investigate whether Alphonso Michael (Mike) 
Espy, Secretary of Agriculture, committed a violation of any 
federal criminal law relating in any way to the acceptance of 
gifts by him from organizations or individuals with business 



pending before the Department of Agriculture.  The order 
appointing IC Smaltz set forth his jurisdiction as follows:

          Donald C. Smaltz ... is hereby appointed Independent 
     Counsel with full power, independent authority, and jur-
     isdiction to investigate to the maximum extent authorized 
     by the Independent Counsel Reauthorization Act of 1994 
     whether Alphonso Michael (Mike) Espy, Secretary of 
     Agriculture, has committed a violation of any federal 
     criminal law, other than a Class B or C misdemeanor or 
     infraction, relating in any way to the acceptance of gifts 
     by him from organizations or individuals with business 
     pending before the Department of Agriculture.

          The Independent Counsel shall have jurisdiction and 
     authority to investigate other allegations or evidence of 
     violation of any federal criminal law, other than a Class B 
     or C misdemeanor or infraction, by any organization or 
     individual developed during the Independent Counsel's 
     investigation referred to above and connected with or 
     arising out of that investigation.

          The Independent Counsel shall have jurisdiction and 
     authority to investigate any violation of 28 U.S.C. s 1826, 
     or any obstruction of the due administration of justice, or 
     any material false testimony or statement in violation of 
     federal criminal law, in connection with any investigation 
     of the matters described above.

          The Independent Counsel shall have jurisdiction and 
     authority to seek indictments and to prosecute any orga-
     nizations or individuals involved in any of the matters 
     described above, who are reasonably believed to have 
     committed a violation of any federal criminal law arising 
     out of such matters, including organizations or individu-
     als who have engaged in any unlawful conspiracy or who 
     have aided or abetted any federal offense.

          The Independent Counsel shall have all the powers 
     and authority provided by the Independent Counsel 
     Reauthorization Act of 1994.  It is

          FURTHER ORDERED by the Court that the Inde-
     pendent Counsel, as authorized by 28 U.S.C. s 594, shall 



     have prosecutorial jurisdiction to fully investigate and 
     prosecute the subject matter with respect to which the 
     Attorney General requested the appointment of indepen-
     dent counsel, as hereinbefore set forth, and all matters 
     and individuals whose acts may be related to that subject 
     matter, inclusive of authority to investigate and prose-
     cute federal crimes (other than those classified as Class 
     B or C misdemeanors or infractions) that may arise out 
     of the above described matter, including perjury, ob-
     struction of justice, destruction of evidence, and intimi-
     dation of witnesses.

     Thereafter, IC Smaltz proceeded to conduct the investiga-
tion pursuant to our order and to additional referrals initiated 
by the Attorney General.  In early 1996, IC Smaltz applied 
directly to the Court for a referral of a related matter 
pursuant to s 594(e) of the Act.  After consideration of the 
application and the Attorney General's opposition, we granted 
that application for reasons set forth in an opinion published 
as In Re Espy, 80 F.3d 501 (D.C. Cir., Spec. Div. 1996).  In 
the matter now before us, IC Smaltz makes a new application 
setting forth, as in the prior one, his view that this new 
referral is appropriate because he has "uncovered evidence of 
other serious violations of law by Secretary Espy and others 
close to him," which "are related to the Independent Coun-
sel's prosecutorial jurisdiction, as framed by the Special Divi-
sion's order of appointment, but not specifically mentioned in 
his order of appointment."  Again, the Attorney General has 
filed opposition.

     Upon reviewing the application and the opposition of the 
Attorney General, we conclude that in the present case the 
Independent Counsel has not met his burden of establishing 
that the allegations as to which he seeks further referral are 
sufficiently demonstrably related to the initial grant of juris-
diction to warrant our order of referral in the face of the 
opposition of the Attorney General.  Therefore, for the rea-
sons more fully set forth hereinafter, we must deny this 
application.



                                  DISCUSSION


     A. Governing Principles

     Section 594(e) of the Act provides:

     An independent counsel may ask the Attorney General or 
     the division of the court to refer to the independent 
     counsel matters related to the independent counsel's 
     prosecutorial jurisdiction, and the Attorney General or 
     the division of the court, as the case may be, may refer 
     such matters.  If the Attorney General refers a matter to 
     an independent counsel on the Attorney General's own 
     initiative, the independent counsel may accept such refer-
     ral if the matter relates to the independent counsel's 
     prosecutorial jurisdiction.  If the Attorney General re-
     fers any matter to the independent counsel pursuant to 
     the independent counsel's request, or if the independent 
     counsel accepts a referral made by the Attorney General 
     on the Attorney General's own initiative, the independent 
     counsel shall so notify the division of the court.

As we have previously noted, "section 594(e) gives an inde-
pendent counsel a choice between asking the Attorney Gener-
al or the special division for referral of a related matter and 
further states that either the Attorney General or the court 
may refer such matters."  In Re Espy, 80 F.3d at 504.  In 
Espy we held, for reasons more fully set forth therein, that 
this language, under appropriate circumstances, permitted 
the division of the court to refer related matters "to an 
independent counsel without the concurrence of the Attorney 
General," id. at 506, and we did so even in the face of her 
opposition.  However, we further held that our power to 
make such referral is much more limited than the broad 
referral power of the Attorney General.

     More specifically, we determined that the boundaries of our 
power were delineated in Morrison v. Olson, 487 U.S. 654 
(1988).  The Supreme Court reminded us in that decision, 
"constitutional difficulties ... arise when executive duties of a 
non-judicial nature are imposed on judges holding office 
under Article III of the Constitution."  In Re Espy, at 507;  



see also Buckley v. Valeo, 424 U.S. 1 (1976).  Thus, we held 
that the court may make referrals to the independent counsel 
absent the concurrence of the Attorney General only where 
the effect of the referral is to "interpret[ ], but not expand[ ], 
the independent counsel's original prosecutorial jurisdic-
tion...."  In Re Espy, at 507.  Otherwise put, a court 
ordered referral is available "to make explicit the indepen-
dent counsel's jurisdiction over a matter that was implicitly 
included in the original grant of prosecutorial jurisdiction."  
Id.

     In opposing IC Smaltz's present application, the Attorney 
General argues that the new referral sought by IC Smaltz 
exceeds our constitutionally limited authority.  We agree.

     B. The Current Application

     We do not think it proper to set forth in this published 
opinion the full details of heretofore untested allegations of 
criminal activity on the part of Espy and others.  Nonethe-
less, we are able to explain our reasons based on the argu-
ments advanced by the Attorney General without making 
unwarranted disclosure of those allegations.

     In the order appointing the independent counsel, we out-
lined his core jurisdiction as the authority

     to investigate ... whether [Secretary Espy] has commit-
     ted a violation of any federal criminal law ... relating in 
     any way to the acceptance of gifts by him from organiza-
     tions or individuals with business pending before the 
     Department of Agriculture.

In addition, the order gave IC Smaltz authority

     to investigate other allegations or evidence of violation of 
     any federal criminal law ... by any organization or 
     individual developed during the Independent Counsel's 
     investigation ... and connected with or arising out of 
     that investigation,

and

     to investigate any violation of 28 U.S.C. s 1826, or any 
     obstruction of the due administration of justice, or any 



     material false testimony or statement in violation of 
     federal criminal law, in connection with any investigation 
     of the matters described above.

Finally, the order gave IC Smaltz authority

     to fully investigate and prosecute ... all matters and 
     individuals whose acts may be related to [the] subject 
     matter [of his appointment], inclusive of authority to 
     investigate and prosecute federal crimes ... that may 
     arise out of the above described matter, including perju-
     ry, obstruction of justice, destruction of evidence, and 
     intimidation of witnesses.

     In the application before us the Independent Counsel raises 
allegations concerning criminal conduct on the part of Secre-
tary Espy and others in violation of other criminal statutes 
outlawing a different category of conduct and occurring on 
different occasions than those set forth in the grant of 
jurisdiction.  In reviewing the prior application, we held that 
we could constitutionally refer new matters to an independent 
counsel only where such new matters are "demonstrably 
related to the factual circumstances underlying the Attorney 
General's original investigation and request for appointment 
of an independent counsel."  In Re Espy, at 508;  see also 
United States v. Tucker, 78 F.3d 1313, 1321 (8th Cir. 1996).  
While the Independent Counsel advances the proposition that 
the matters are related because of the common prospective 
subject (Espy), the common concern for misconduct by a high 
official and the potential presence of eight unnamed common 
witnesses, we cannot, given our constitutionally delineated 
authority, conclude that the power to investigate these other-
wise unrelated allegations is implicit in the original grant of 
authority.

     As the Attorney General argues, in her opposition, the 
original grant of authority rested on allegations that Secre-
tary Espy had accepted gifts from organizations and individu-
als with business pending before the Department of Agricul-
ture.  The special division appointed Smaltz to investigate 
whether the Secretary committed violations of federal crimi-
nal laws relating to such acceptance of gifts.  The facts 



alleged in the present application do not involve any alleged 
misuse of the office of Secretary of Agriculture by Espy, any 
acceptance of payments or gifts from persons having business 
with that Department, or any similar pattern of conduct.

     We therefore agree with the Attorney General that the 
current application seeks an appointment beyond the authori-
ty of this court.

                                  CONCLUSION


     For the reasons set forth above, we conclude that this court 
lacks the authority to grant the referral sought by Indepen-
dent Counsel Smaltz over the opposition of the Attorney 
General.  We therefore deny the application by way of the 
attached order.

                                                      
