Appeal from the United States District Court for the District of Columbia (No. 02cr00014-01)
Before: Sentelle, Randolph and Rogers, Circuit Judges.
The opinion of the court was delivered by: Sentelle, Circuit Judge
Concurring opinion filed by Circuit Judge ROGERS.
James Pickett appeals from a judgment of conviction entered upon a jury verdict finding him guilty of violating 18 U.S.C. § 1001 by making false statements in a matter within the jurisdiction of the legislative branch of the government of the United States. Because the indictment failed to state an essential element of the offense, and because the evidence presented to the jury was also insufficient to sustain a conviction as to the same element, we vacate Pickett's conviction and order the dismissal of the indictment.
On October 15, 2001, an anonymous letter delivered to Senator Thomas Daschle at his Senate office on Capitol Hill contained a white powder that tested positive for Anthrax-a dangerous, often deadly, disease-causing agent. Other similar Anthrax incidents occurred around the same time and geographic area. On November 7, 2001, while the Anthrax investigation was not only ongoing but much on the minds of law enforcement, members of Congress, and the public, Pickett committed what he now admits was a "bad joke." The facts of the incident are not in dispute. Appellant, then a Capitol Police officer, was on duty at a security post at the entrance to the Cannon Office Building tunnel, which connects the House Office Buildings to the Capitol Building. Because of the level of security measures occasioned by the Anthrax incident, which followed close on the heels of the tragic attacks on the United States on September 11, 2001, the tunnel was closed to members of the public, but open to authorized personnel including Members of the House of Representatives. The security post was accessible by members of the public and consisted largely of a podium, a desk, a magnetometer, and an x-ray machine. At approximately 5 p.m. on November 7, Officer Kari Morgansen left her seat at the podium and moved to the desk seat vacated by appellant, who was going on break. At the desk Officer Morgansen discovered a handwritten note and a small pile of white powder. The note read, "PLEASE INHALE YES THIS COULD BE? CALL YOUR DOCTOR FOR FLU -- SYMPTOMS. THIS IS A CAPITOL POLICE TRAINING EXERCIZE [sic]! I HOPE YOU PASS!"
Officer Morgansen inquired of Officer John Caldwell, who was also on duty at the post, if he knew anything about the note or the powder. He did not. Neither of the officers believed that the powder was actually Anthrax. Nonetheless, because of the state of alert and the earlier incidents, they called a superior and blocked the powder and note from public view lest anyone become alarmed. The superior, Sergeant Turner, asked who else had been at the desk. Upon learning appellant had been sitting there, he contacted him by phone and asked him what was on the desk. After some delay, appellant advised that "it was a joke" and that the powder "was Equal." Although the powder was never tested, the government has never contended that it was actually Anthrax or anything other than the dietary sugar substitute appellant suggested. Sergeant Turner conducted some further investigation and reported the incident to the Criminal Investigation Division of the Capitol Police.
After some further investigation, the United States Attorney submitted the matter to a grand jury. The grand jury returned an indictment charging Pickett with making false statements in violation of 18 U.S.C. § 1001 and obstructing and interfering with the Capitol Police in violation of 40 U.S.C. § 212a-2(d). Pickett moved to dismiss the indictment on the ground that his conduct was covered by neither statute. The District Court granted the motion to dismiss as to the obstruction charge, but denied it as to the charge of violating section 1001. The government filed a superseding information recharging the obstruction count. A jury trial commenced on November 13, 2002. The jury received the case at midday on November 20, 2002. After an afternoon of deliberations and an overnight recess, the jury deliberated for a full business day on November 21 before returning a verdict of not guilty on the obstruction charge and guilty on the false statements charge. The District Court entered a judgment on February 11, 2003, sentencing appellant to two years probation, 200 hours of community service, and a $100 special assessment. The court suspended execution of the sentence because "significant questions have been raised by [the defense] which deserve attention from the circuit before consequences are visited on [appellant]." Appellant then filed the current appeal.
The statute of conviction, 18 U.S.C. § 1001, reads as follows:
(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully-
(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
(2) makes any materially false, fictitious, or fraudulent statement or representation; or
(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry; shall be fined under this title ...