On Appeal from the United States District Court for the District of Delaware (D.C. Criminal No. 85-72)
Before: SLOVITER and STAPLETON, Circuit Judges, and GREEN, District Judge*fn*
This case raises, apparently for the first time, an issue concerning the scope of conduct prohibited by the Ethics in Government Act.
Appellant Anderson J. Coleman appeals from a jury verdict finding him guilty of three counts of violation of a provision of the Ethics in Government Act. 18 U.S.C. § 207(b)(i); two counts of knowingly making false declarations to the grand jury in violation of 18 U.S.C. § 1623; three counts of obstructing justice in violation of 18 U.S.C. § 1503 by lying to the grand jury and by instructing a witness not to tell the grand jury about certain transactions; and one count of illegal conversion to his own use of funds given him as payment for federal income tax in violation in 18 U.S.C. § 654. Coleman was sentenced to two years imprisonment on the perjury and obstruction of justice counts, eighteen months imprisonment on the conversion count, and probation on the other counts. All sentences were to run concurrently.
THE ETHICS IN GOVERNMENT ACT
Coleman was a Revenue Officer for the Internal Revenue Service for more than 23 years before he retired on January 3, 1985. During his service, Coleman attained the highest possible grade for his position, GS-12, and was, at the time of his retirement, the most experienced non-supervisory Revenue Officer working in the Dover, Delaware IRS office. Upon retirement, he established a tax and financial consulting service.
It is undisputed that within one year of his retirement Coleman attended meetings between IRS officer Gloria Dendy, to whom some of his cases had been transferred, and each of three taxpayers, Stephen Patmiou, Louis Ianire, and Philip Jackson, whose tax collection had been Coleman's personal responsibility immediately prior to his retirement. These three meetings formed the basis of the three counts alleging violation of the Ethics in Government Act.
Provisions of the Ethics in Government Act of 1978, 18 U.S.C. § 207, place certain restrictions of post-employment activity of federal officials and employees. The statute distinguishes between matters in which the former government official or employee participated "personally and substantially" and matters for which the official had "official responsibility." Section 207(a) establishes a lifetime bar against certain activities, i.e. formal or informal appearance or communications with the intent to influence, by former government officials or employees concerning matters in which the official participated personally and substantially while in office. In contract, section 207(b) establishes only a two year ban for the conduct it covers.
Section 207(b)(ii), which is to some extent duplicative of section 207(a), applies to former top-level employees, as defined elsewhere in the statute, and penalizes one who, with respect to matters in which s/he "participated personally and substantially as an officer or employee" "knowingly represents or aids, counsels, advises, consults, or assists in representing any other person (except the United States) by personal presence at any formal or informal appearance." 18 U.S.C. § 207(b)(ii).
Coleman was not charged under either sections 207(a) or 207(b)(ii). He was charged under section 207(b)(i) which makes it a crime when a federal employee, within two years after his or her employment has ceased, "knowingly acts as agent or attorney for, or otherwise represents" any other person in any formal or informal appearance before any department, agency, or court of the United States or any officer or employee thereof on any matter for which the former employee had "official responsibility" during the year prior to leaving government employment.*fn1
The district court instructed the jury that conviction of Coleman under section 207(b)(i) required the government to establish five elements: (1) that Coleman had been an IRS officer; (2) that within two years after his retirement, Coleman had "knowingly acted as agent or otherwise represented a person at an informal appearance" before an IRS officer; (3) that such representation was in connection with a proceeding or matter involving a party in which the United States had a direct and substantial interest; (4) that Coleman had had official responsibility for the matter within one year of his retirement; and (5) that Coleman's representation was knowingly done. Coleman does not argue that the district court erred in specifying the elements of the offense. Instead he argues that the district court erred as a matter of law in instructing the jury with respect to the definition of "represent."
Coleman had proffered to the district court the following definition of "represent": "To represent a person is to stand in his place; to supply his place; to act as his substitute." App. at 78. Coleman's definition was taken from the Black's Law Dictionary definition of "represent." He omitted to include in his proffered charge the remainder of that definition, i.e. "to ...