# U n i t e d S t a t e s C o u r t o f A p p e a l s

F O R T H E D I S T R I C T O F C O L U M B I A C I R C U I T

Submit ted Dec ember

3, 2010 Dec ided Marc h 4, 2011

No. 09-3121

U N I T E D S T A T E S O F A M E R I C A , A P P E L L E E

v.

C O U R T N E Y A. S T A D D , A P P E L L A N T

Appea l from the United States District Court for the D istrict of Columbia (No. 1:09-c r-00065)

Dorrance D . Dicke ns was on brie f for the appe llant.

Ronald C. Mache n , Jr.
, United States Attorney
, and Roy W

. McLee se II I
, John P. Mannarino
, David S. Johnson and Matthew C. Solomon

, Assistant United States Attorney s, wer e on brief f or the a ppellee.

Be fore : G I N S B U R G , H E N D E R S O N and G R I F F I T H , Circuit Judges

. Opinion for the Court filed by Circuit Judge H E N D E R S O N

. K A R E N L E C R A F T H E N D E R S O N , Circuit Judge : Courtney Stadd (Stadd) appea ls from his conviction on one count of committing an act aff

ec t ing a persona l financ ial interest in violation of 18 U.S.C. §§ 2 0 8 (a) and 216(a)(2) and two counts2

of making false statements in v i o lation of 18 U.S.C. § 1001(a) (2). The convictions arose from his involvement in the allocation of a $15 milli on cong ressional ear mark while serving

as t he interim Associate Administrator of the National Aer onautics and Space Administr at ion (NASA). Stadd challeng es the sufficie ncy of the evidenc e to support his convictions and the jury instructions reg arding the section 208(a) violation. We affir m his conviction on all three counts.

I

. I n Apri l 2005, incoming NASA Administrator Michae l Griff in (Grif fin) asked Stadd to serve as NASA’s Deputy Administrator, the ag ency ’s second highe st position. Griff in
soug ht Stadd for the position beca use Stadd had serve d as NASA’s chie f of staf

f during President Geor g e W. Bush’s f irst
term and thus was familiar with many NASA employ ees and knew how the ag ency worke d. Stadd dec l i n ed the deputy administrator position, citing impending persona l expenses and stating he felt h e n eeded t o leave g overnme nt and return t o the private sector. He ag ree d, howeve r, to serve on an interim basis

as associate administrator to help Griff in transition into his new role as Administrator. Griff in d es cribed the associate administrator position as equivalent to a chief opera ting office r.
Stadd initially fi l led the associate administrator slot as a g overnme nt contra ctor but on April 28, 2005 he was conver ted 1 to a spec ial g overnme nt employ ee (SGE) and, as such, became subject to the ethics laws g overning fede ral officia ls/employ ees. He rece ived an ethics briefing from NASA’ s g ener al counsel’s office

, that included the following statement about 18 U.S.C. § 208(a) :

Ba sic Rule : Employ ees must not act officia lly on matters which may aff

ect their personal interests. .

. .

A l l e v e n t s o c c u r r e d i n 2 0 0 5 u n l e s s o t h e r w i s e n o t e d

. 13

An employ ee is disqualified

. . . from participa ting
persona lly an d substantially

. . . in any particula r matter

. . . in which the employ ee, or any one whose interests are imputed to the employ ee,

. . . has a financ ial interest, if the particula r matter will have a direct and predictable e

ffect on t hat interest . I n other words, an employ ee may not work o n a particula r matter in which the employ ee’ s outside employ er has an intere st.

Ex s. App. 139-41, United States v. Stadd

, No. 09-31 2 1 (D.C. Cir. Apr. 29, 2010) (Exs. App.) (Senior New En t rant Ethics Br iefing PowerPoint) (empha sis added).

At the time, Stadd was sole proprietor of Capitol Soluti ons,

a consultin g firm whose clients included the GeoResour ces Resear ch I nstitut e (GRI ) at Mississ ippi State University (MSU),
among others. He disclosed to NASA a list of his cl ients, including GRI

, and explained that GRI had held contrac ts with NASA’s Earth Science s office in the past but sta ted that during h is time acting as NASA’s interim associate administrator h e intended to focus on non-NASA m at t ers for GRI

. Throug h
pe r iodic e-ma ils, Stadd kept Adam Gre enstone (Gre enstone), his ethics advisor in NASA’s g ener al counsel’s office

, informed of his eff orts to comply with the ethics laws. For instance, in an email dated May 1, Stadd wrote, “I am strictly confining my role
to that of an advisor and fac ilitator vis-à-vis org anizational transition issues

. . . and whene ver possible avoidin g m eetings

or any situations that indirectly or direct l y aff ect my outside business activities.” Gov’t App. Tab 8, United States v. Stadd

, No. 09-3121 (D.C. Cir. J uly 19, 2010) (Gov’t App.). I n t h e

sam e e-ma il, he repor

ted that he had absente d himself from a NASA staff meeting when the discus s i o n turned to a pending meeting betwee n one of his clients and the Administrator and that he had reque sted to be excluded from any mee t i n gs reg arding a matter in w hich one of his clients had a “sec ondary4

interest.” Id. I n a May 11 e-ma il, Stadd repor ted he had met with two of his clients and informed them he was rec used “fr om any and all NASA meeting s or activities indirectly or direc tly rela ted” to them. Id. Tab 9.

On J un e 1 3, Stadd signe d an ethics ag ree ment “re g arding [hi s] fe dera l se rvice commencing April 28, 2005.” Gov’t App. T ab 11 at 1. I n the ag ree ment, he disclosed his financ ial intere s t s, including his consulting service s provided to GRI at MSU, an d p l edg ed he would “not participa te in any matters involving any of these entities in the course of [ h i s ] NAS A officia l duties.” Id. at 2. He ack n o wl ed g ed that he “[would] still be considere d to ha

ve a financ ial interest in [the disclosed] entities, and [would] t here fore rec use [hi mself] from actions involving them.” Id. He f urther pledg ed that during his te nure with NASA, he would “not eng ag e in any activities i n wh ich [he] repr esent[ed] another person or org anization, or [ his] own private interests, or may appea r to be doing these things to NASA.” Id. More g ener ally

, the ethics ag ree ment provided that Stadd was to “provide advice

, g uidance and rec o m m endations
to senior NASA manag ement on a rang e of issues rela ted to org anizational transition, and [si c] well as on various transition activities involving t he strateg ic direc tion of NASA prog rams and activities” but “not [t o] perf orm any m anag ement or supervisory work, make final decisions on substantive policies,
or ot herw ise function i n the ag ency chain of command.” Id. at 1.
A. The $15 Million Earmar k

Be fore his confirma

tion as NASA Administrator, Griff in met with members of the Congr ess, many of whom wer e ang ry ab o u t t he previous NASA Administrator’s policy of failing to honor cong ressional ear

marks. They let Grif

fi n “k now in no

uncer tain terms that [he] would be expect ed to take car e of [honoring ear

marks] on [hi s] first d ay

. ” Trial Tr. 136, United States v. Stadd

, No. 09-3121 (D.D.C. Aug

. 4, 2009) (Tria l Tr.).5

Griffi n t es tified that, in his four y ear s as Administrator, he

re membere d only two ear marks specific ally

—one of them t h e

ear mark involved in thi s ca s e. He reme mbere d it “bec ause it

was

. . . with Sen at o r Thad Cochran,” who was a senator from Mississ ippi and “the h ead of [S ]enate appropr iations,” making him, from Griff

in’s per spective, “the most power ful senator in the Con g ress.” Id. at 139. Cochran’ s staff informed Griff in “that t h e s enator was unhappy that his ear mark for Mississ ippi had not been honored.” Id. Griff in testified that he “made a point in [hi s] first manag ement meeting

. . . that [NASA] would
t ake car e of ear

marks immediately ” and that he “absolute l y

rec all[ed] g iving that direc tion to th e ac t i n g head of leg islative aff airs.” Id. at 137. A NASA employ ee testified that Stadd was prese nt at t h at meeting and that, as t he meeting attendees were leaving

, the employ ee hear d Griff in indicate to “his [senior] staff around him which was [S tadd] and the others we need to follow
up on [t he ear

mark issue] and make su re t hese g uy s are following throug h.” Tria l Tr. 146 (Aug . 5, 2009).

On May 11, Stadd met David Shaw (Shaw), the direc tor of GRI at MSU, for d i n ner. The two met in the lobby of NASA headqua rters befor e walking to a near by restaur ant. The next day

, May 12, Stadd notified Gre enstone via e-ma il of his dinner with Shaw. The e -mail rea d, in part:

The conver sation involved no ref ere nce whatsoeve r to NASA. I explained upfront that I am completely

rec used from any dis cussi ons or actions that might in
any way impinge on MSU. I stressed that I am bar red from any repr esenta tional work vis-a-v i s NASA on behalf of MSU. Dr. Shaw sa id that he under stood the rules of e ng ag ement.

I also indicated that I would be sending him a summary of the ethics ag ree ment that is curr ently being draf t ed by NASA ethics a ttorney s.6

T rial Tr. 7 (Aug

. 4, 2009). At trial, Shaw testified t h e “[p] rimary focus” of their dinner discussion was MSU’s “ef forts with [t he National Oce anic and Atmospheric Administration] ,”

an i s s u e o n which Stadd was advising MSU. Trial Tr. 18-19 (Aug

. 5, 2009). He testified they discussed NASA but only “in
very g ener al t erms,” including the transition to a new administrator and administrative team. Id. at 19. Shaw testified that S t add did not explain that he (Stadd) was completely

rec used from any discussions or actions that might in any way i m p i n ge on MSU, did not stress that he was barr ed from an y repr esentational work vis-à-vis NASA on behalf of MSU and did not i n d i cate that he would send Shaw a summary of his ethics ag ree ment. Fur

ther, Shaw t est ified he (Shaw) did not

reme mber s ay i n g he understood the rules of eng ag ement and

never rec eived a copy or summary of Stadd’s ethics ag ree ment. Id. at 20-21.

About one wee k afte r t h eir dinner, on May 17, Shaw emailed Stadd reg arding a $15 milli on ear mar k direc ted to NASA’s ear

th scienc e application prog ram. I n the e-ma il, Shaw mentioned he had hear d that Mary Cleave (Cleave )—who was then t he acting director of NASA’s sun ear th sy stems division, which division oversa

w the ear th scienc e prog ram—intende d to distribute the $15 milli on throug h a national competition rathe r than throug h the Miss i s s i p pi Resear ch Consortium (MRC), a consortium of four Mississ ippi rese arc h instit utions; of the four, MS U h ad the larg est ear

th scienc e prog ram. Shaw wrote that MSU would likely rec eive no more than a small portion of the funds if they wer e distributed thr oug h a national competition, a result he “assur e[d] ” Stadd would “not sit well with

. . . Senator Cochran.” Trial Tr. 190 (Aug

. 4, 2009). Shaw conclude d the email by asking Stadd: “Ha ve y ou been a part of any discussions on this, can y ou shed lig ht or provide some pr odding?” Id.

On May 26, Stadd copied Shaw on an e-ma il in which Stadd said he was g oing to meet with Cleav e on May 27 “re : the7

Cochran fu n d s

. ” Gov’t App. Tab 15; Trial Tr. 5-6 (Aug

. 5, 2009). Stadd also claimed to “have [Admi ni s t rator] Mike[ Griff

in ’s ] en dorsement.” Trial Tr. 6 (Aug

. 5, 2009). Cleave testified that befor e the meeting she “thoug ht it was p robably about Mississ ippi money ” “[b] eca use of this $15 mill i o n ear

mark lang uag e and the historical interest of the Mississ ippi [congr essional] deleg ation in ear th scienc e applications in Mississ ippi.” Trial Tr. 69 (Aug

. 4, 2009). At the meeting

, Stad d informed Cleave “that a deal had been cut betwee n the previous [NASA] administrator

. . . and the Mississ ippi [congr essional] deleg ation and [t he $ 1 5 milli on

ear marke d funds] neede d to g o to Mississ ippi.” Id. at 72. Stadd did not expressly mention MSU, and Cleave did not know MSU

was Stadd’s client. Cleave “push[ed] back” ag ainst S t ad d

, explaining that she had planned to distribute the money throug h

a national competit ion and that, beca use the ear

mark was not limit ed to Mississi ppi, “there would be a lot of push back f rom the scie n ti f

ic c ommunity ” if the money went only to Mississ ippi. Id. at 73-74. I n response , S t add told Cleave to distribute $3 milli on of the $15 milli on throug h a national competition, w ith the other $12 milli on g oing to Mississ ippi. Id. at 74. Cleave testified that it was not unusual for her to be told how to allocate funds verba lly rathe r than in writing

. Id. at 74-75 (“I know that $15 milli on sounds like a lot of money , but when y ou’re talking about a $5 billion budg et, g etting verba l direc tion on this
amount of money is not unusual.”). She al s o d escribed the meeting as “uncomf

ortable.” Id. at 76. After the meeting

, Stadd

e-ma iled Shaw and told him “the mee ting did not g o well” and “C l ea v e s till intended to put [t he money ] out for the national competition.” Trial Tr . 9 (Aug . 5, 2009). Despite Stadd’s assessment of the meeting

, NASA direc ted $12 milli on of the ear

mark to the MRC. M S U u l timately

rec eived approximately $9.6 milli on of the $1 2 milli on distributed by the MRC. When NASA fi rs t d irec ted the funds
to the MRC, howeve r, Shaw “wa s v er y d i sappointed and very8

upset” about the limit s NASA place d on the MRC’s distribution of the funds and convey ed his position to Stadd. Trial Tr. 12 (Aug

. 5, 2009). On J une 22, Stadd’s penultimate day at NASA, he sent the f

ollowing e -mail to Shaw:
[O] vera ll I g ather ed [t he NASA require ments wer e] fra med in a way that constrains GRI from g etting the bulk of the funds. I f true, I am bey ond pissed. I broke
my fu cking (excuse my lang uag e) pick to salvag e the funds

. . . . I steere d Mary Cleave so that Ron had clea r running room. And now am I to believe that the son of a bitch fr amed it so that MSU is screwe d? . . . I f true, David [S haw], I do not know what to do. I am literally
out of i d ea s

. I f I intervene any more then all sorts of red f lag s will g o up and I fea

r getting MSU and me in trouble. . . .

. . . Unless y o u e- m ail me back with a differ ent interpre tation of [NASA ’s require ments] and [t heir] impact on MSU I will have to repor t back to [ Griff

in] that the eff

ort to a ddress Cochran’ s conce rns has been a complete failure

. Gov’t App. Ta

b 16. The following day

, Stadd’s last at NASA, he told Griff

in’s chief of st af

f “that Senator Cochran’ s office

was unhappy with the way that the scienc e mission direc tor was implementing one of his ear marks.” Trial Tr. 63 (Aug

. 5, 2009). The chief of staff told Stadd later t hat he disapproved of Stadd “try ing to g et this ear

mark direc ted to Mississ ippi State” beca use it c rea ted an “appe ara

nce of inappropria te behavior .” Id. at 69; see id. at 67-70, 76.

B. MSU’s Pay

ments to St add
By invoice dated J une 1
, Stadd char g ed MSU $27,450, primarily for assisting his client, GRI
, with the National Oce anic and Atmospheric Administration. Gov’t App. Tab 17. The invoice also stated t h at S tadd had “assisted GRI in9

understanding personne l and polic y chang es at NASA HQ, including efforts (January – April 15, 2005) to ensure that the
appropr iate ear

th scienc e rese arc h prog rams wer e appropr iately ref ocused in are as of potential benef it to MSU/GRI .” Id. Shaw 2 testifi ed that he believed the work descr ibed in the J une 1 in v o i ce included Stadd’s actions involving the $15 milli on

ea rmark while he was a SGE at NASA. Trial Tr. 26 (Aug

. 5, 2009). S haw testified the re w as nothing else S tadd could have done pursuant to his consulting ag ree ment with MSU that fit the descr iption given in the invoice, notwithstanding the purporte d ending date of April 15, 2005 Stadd had specifie d in the invoice. Id. Fur ther, Shaw testified h e did not seek Stadd’s assistance wi t h the ear

mark befor e May 2005, at which point Stad d wa s serving as a SGE. Id

. at 2 6-27. I n an e-ma il dated October 3 31—about four months afte r Stadd had left NASA—Stadd tried
to incre ase his compensa tion from MSU. Gov’t App. T ab 18. To justi fy t h e raise, he listed work perf ormed for MSU, including “the rec overy of the ear marke d NASA procur ement.” 4 Id. Shaw testi fi ed that he believed Stadd was ref err ing to the $15 milli on ear

mark beca

use Stadd had not worke d on any other NASA ear

mark for MSU during that time. Trial Tr. 33-34 (Aug

. 5, 2009).
By indictment filed Marc h 6, 2009, Stadd was char g ed with

one coun t o f committing an act aff ecting a persona l financ ial interest in violation of 18 U.S.C. §§ 208(a) and 216(a) (2) for his

A p r i l 1 5
, 2 0 0 5 i s t h e d a y S t a d d b e g a n t o s e r v e a s i n t e r i m 2

a s s o c i a t e a d m i n i s t r a t o r

.

S t a d d c o n t e n d s h e h a d a p r e

- e x i s t i n g c o n t r a c t w i t h M S U
, u n d e r 3

w h i c h h e w a s s c h e d u l e d t o r e c e i v e p a y m e n t s o f $ 2 7
, 4 9 6 o n s p e c i f i c d a t e s , i n c l u d i n g J u n e 1

.

M S U i n c r e a s e d S t a d d ’ s m o n t h l y c o m p e n s a t i o n b u t o f f e r e d h i m 4

o n l y a s i x

- m o n t h c o n t r a c t

.10

actions reg arding t h e $15 milli on ear mark and two counts of making false statements in violation of 18 U.S.C. § 1001(a) (2):

o ne count based on his May 12, 2005 e-ma il to Gre ens t o n e reg arding his dinn er with Shaw and the s econd count based on the statements contained in the ethics ag ree ment he executed

nunc pro tunc on J une 13. Following a three -day trial, the jury

co n v icted Stadd on all three counts on Aug ust 6, 2009. The district court sentenc ed Stadd to thirty -six months’ probation on

eac h count, to be serve d concur rently

, a $2500 fine, a $ 300 specia l a ssessment and 100 hours of community service during the first twelve months of probation. 5

I I

. We addre ss, first, Stadd’s challeng e to the sufficie ncy of the evidenc e and, se cond, his cha lleng e to the jury instructions.

A. Sufficienc y

of the Evidenc e
Stadd challeng es the sufficie ncy of the evidenc e supporting the three counts of conviction. “When revie wing a g uilty verdic t for sufficie ncy of the evidenc e, we view the evidenc e in the light most favor able to the Gover nment and must aff

irm the verdic t if ‘ any ra t ional trier of fac t could have found the essential elements o f t he crime bey ond a rea sonable doubt.’ ” Uni t ed States v. W

ynn , 61 F.3d 921, 923 (D.C. Cir. 1995)

I n A u g u s t 2 0 1 0
, S t a d d p l e a d e d g u i l t y t o o n e c o u n t o f c o n s p i r a c y 5

t o d e f r a u d t h e g o v e r n m e n t i n v i o l a t i o n o f 1 8 U

. S

. C

. § 3 7 1

. P l e a A g r e e m e n t , U n i t e d S t a t e s v

. S t a d d

, N o

. 1 : 0 9 c r 1 0 8 H S O

- R H W ( S

. D

. M i s s

. A u g

. 4
, 2 0 1 0 )

. T h e a l l e g a t i o n s i n t h a t c a s e a l s o r e l a t e t o

o b t a i n i n g f

u n d s f r o m N A S A f

o r M S U ’ s u s e

. T h e c o u r t s e n t e n c e d S t a d d t o f

o r t y

- o n e m o n t h s ’ i m p r i s o n m e n t f o l l o w e d b y t h r e e y e a r s o f

s u p e r v i s e d r e l e a s e a n d i m p o s e d a $ 1 0 0 a s s e s s m e n t , a $ 7 5 0 0 f i n e a n d $ 2 8 7
, 0 0 0 i n r e s t i t u t i o n

. J u d g m e n t , U n i t e d S t a t e s v

. S t a d d

, N o

. 1 : 0 9 c r 1 0 8 H S O

- R H W ( S

. D

. M i s s

. N o v

. 2 4
, 2 0 1 0 )

.11

(empha sis in orig inal) (quoting Jack son v. Virgin i a , 443 U.S. 307, 319 (1979))

, cert. de nied , 516 U.S. 1015 (1995).

1. 18 U.S.C. § 208(a) Count

There are four el em ents of the crime set out in 18 U.S.C. § 208(a) : (1) “an office r or employ ee of the executive branc h of the United States Gover

nment” (2) “par

ticipates persona lly and

s u b stantially as a Gover

nment office r or employ ee” (3) “in a judicial or other proce eding

, application, reque st f or a ruling or

o ther deter

mination, contra ct, claim, controve rsy , char ge,

acc usation, arr est, or other particula r matter” (4) in which he knows he has a financ i al i n t erest. Stadd maintains the 6 Gover nment failed to prove the final thre e ele ments.

T h e s t a t u t e p r o v i d e s , i n r e l e v a n t p a r t : 6

[ W ] h o e v e r , b e i n g a n o f f i c e r o r e m p l o y e e o f t h e

e x e c u t i v e b r a n c h o f t h e U n i t e d S t a t e s G o v e r n m e n t ,

. . . i n c l u d i n g a s p e c i a l G o v e r n m e n t e m p l o y e e , p a r t i c i p a t e s p e r s o n a l l y a n d s u b s t a n t i a l l y a s a G o v e r n m e n t o f

f i c e r o r e m p l o y e e , t h r o u g h d e c i s i o n ,
a p p r o v a l

, d i s a p p r o v a l

, r e c o m m e n d a t i o n , t h e

r e n d e r i n g o f a d v i c e , i n v e s t i g a t i o n , o r o t h e r w i s e , i n a j u d i c i a l o r o t h e r p r o c e e d i n g , a p p l i c a t i o n , r e q u e s t f o r

a r u l i n g o r o t h e r d e t e r m i n a t i o n , c o n t r a c t , c l a i m , c o n t r o v e r s y , c h a r g e , a c c u s a t i o n , a r r e s t , o r o t h e r p a r t i c u l a r m a t t e r i n w h i c h

, t o h i s k n o w l e d g e , h e , h i s

s p o u s e , m i n o r c h i l d

, g e n e r a l p a r t n e r , o r g a n i z a t i o n i n

w h i c h h e i s s e r v i n g a s o f f i c e r , d i r e c t o r , t r u s t e e , g e n e r a l p a r t n e r o r e m p l o y e e , o r a n y p e r s o n o r

o r g a n i z a t i o n w i t h w h o m h e i s n e g o t i a t i n g o r h a s a n y

a r r a n g e m e n t c o n c e r n i n g p r o s p e c t i v e e m p l o y m e n t , h a s

a f i n a n c i a l i n t e r e s t

— S h a l l b e s u b j e c t t o t h e p e n a l t i e s

s e t f o r t h i n s e c t i o n 2 1 6 o f t h i s t i t l e

.
1 8 U

. S

. C

. § 2 0 8 ( a )

. S e c t i o n 2 1 6 o f T i t l e 1 8 s e t s f o r t h t h e p e n a l t i e s f

o r

a v i o l a t i o n o f s e c t i o n 2 0 8
, i n c l u d i n g i m p r i s o n m e n t a n d / o r a f i n e

. 1 8 U

. S

. C

. § 2 1 6

.12

Taking the third element first, we conclude that there was ample evidenc e from which the jury could conclude the allocation of the ear

marke d funds was indeed a “par ticular matter” within the meaning of the statute. Stadd relies upon the d efinition of “par

ticular matter” contained in 5 C.F.R. § 2635.402(b)( 3) as “enc ompass[i ng ] only matters that involve delibera tion, decision, or action that is focuse d upon the interests

o f specific persons, or a discrete and identifiable class o f persons.” Ac c ording ly

, “par ticular matter” does not include “the

co n s idera tion or adoption of broad policy options that ar e direc ted to the interests of a larg e and diverse g roup of persons.” Id. Stadd claims he did not parti ci p at e in a “particular matter” beca use his actions focuse d on the State of Mississ ippi, which consists of “a larg e and diverse g roup of persons,” and not upon the interests of “spec ific persons, or a discrete and i d en t ifiable class of persons.” T h e fl aw in his arg ument is that the $15 milli on ear

mark did not g o to the State of Mississ ippi; it went instead to th e M R C
, to be divided among its four member instit utions, with t h e lion’s share —$9.6 milli on of $12 milli on—g oing to MSU’ s GRI
, Stadd’s client. Stadd intended that the funds g o t o t h e MRC and they did so. Moreove r, 7 St add’s J une 22 e-ma il plainly manifested his frustra tion that MSU might g et “scr ewe d” out of the funds. Gov’t App. Tab 16. A re asonable jury

could conc lude from the evidenc e that Stadd

was foc u s ed

, at most, on the interests of the four rese arc h instit utions comprising the MRC and, in particula r, on MSU’s int er ests. The four member instit utions of the MRC are sufficie ntly discrete and identifiable that Stadd participa ted in a “par ticular matter ” under

the statute.

S h a w ’ s M a y 1 7 e

- m a i l t o S t a d d t h a t p r o m p t e d S t a d d t o m e e t 7

w i t h C l e a v e d i d n o t c o m p l a i n t h a t t h e e a r m a r k e d f u n d s w e r e n o t g o i n g t o M i s s i s s i p p i b u t t h a t t h e y w e r e n o t g o i n g “ t h r o u g h t h e M R C

. ” T r i a l
T r

. 1 8 8

- 8 9 ( A u g

. 4
, 2 0 0 9 )

.13

Having deter

mined that ample evidenc e supported the third element of a section 208(a) violation, we n ext conclude that,
ag ain, ampl e evidenc e supported the second element. Stadd participa ted both “per sonally and substantially ” in t he dis t ri b u t ion of the ear

marke d funds. Cleave planned to dist ri bute the funds throug h a national competition. Stadd
persua d ed C l ea ve, howeve r, to allocate $12 milli on of the $15 milli on ear

mark to the MRC. Of that $12 m i l l i on, MSU

rec eived ne arly

$10 milli on. 8
Finally

, we conclude that sufficie nt evidenc e supports t h e fourth element—that Stadd knew he had a fi n ancial interest in the “par ticular matter.” I n ad dition to a consultant’s obvious financ ial interest in an awa rd of milli ons of dollars to one of his

W e r e j e c t S t a d d ’ s a r g u m e n t t h a t h e s i m p l y e f f e c t u a t e d t h e i n t e n t 8

o f t h e C o n g r e s s t h a t t h e e a r m a r k e d f u n d s g o t o M i s s i s s i p p i

. T h e l e g i s l a t i o n d i r e c t e d t h a t t h e f u n d s “ b e u s e d t o s u p p o r t c o m p e t i t i v e l y

s e l e c t e d a p p l i c a t i o n s p r o j e c t s

. ” H

. R

. R e p

. N o

. 1 0 8

- 7 9 2
, a t 1 6 0 2 ( 2 0 0 4 ) ( C o n f

. R e p

. ) ; s e e C o n s o l i d a t e d A p p r o p r i a t i o n s A c t o f 2 0 0 5
, P u b

. L

. N o

. 1 0 8

- 4 4 7
, 1 1 8 S t a t

. 2 8 0 9
, 3 3 3 3

- 3 5 ( 2 0 0 4 )

. E v e n i f t h e r e

w e r e a c o n g r e s s i o n a l u n d e r s t a n d i n g t h a t t h e f u n d s b e d i r e c t e d t o M i s s i s s i p p i

, S t a d d ’ s a c t i o n s n o n e t h e l e s s v i o l a t e d s e c t i o n 2 0 8 ( a )

. A s t h e S e v e n t h C i r c u i t h a s e x p l a i n e d

, t h e C o n g r e s s i n t e n d e d s e c t i o n 2 0 8 ( a ) “ t o p r o s c r i b e r a t h e r b r o a d l y e m p l o y e e p a r t i c i p a t i o n i n b u s i n e s s t r a n s a c t i o n s i n v o l v i n g c o n f l i c t s o f i n t e r e s t a n d t o r e a c h a c t i v i t i e s a t

v a r i o u s s t a g e s o f

t h e s e t r a n s a c t i o n s

. ” U n i t e d S t a t e s v

. I r o n s , 6 4 0 F

. 2 d 8 7 2
, 8 7 6 ( 7 t h C i r

. 1 9 8 1 )

. F o r t h a t r e a s o n , s e c t i o n 2 0 8 ( a ) r e a c h e s “ a c t s

w h i c h e x e c u t e o r c a r r y t o c o m p l e t i o n a c o n t r a c t o r m a t t e r a s t o w h i c h

t h e a c t s o f r e n d e r i n g a d v i c e o r m a k i n g r e c o m m e n d a t i o n s a r e

s p e c i f i c a l l y p r o s c r i b e d

. ” I

d

. a t 8 7 8 ; a c c o r d U n i t e d S t a t e s v

. S e l b y , 5 5 7 F

. 3 d 9 6 8
, 9 7 1 ( 9 t h C i r

. 2 0 0 9 ) ( p e r c u r i a m ) ( a f f i r m i n g c o n v i c t i o n u n d e r

s e c t i o n 2 0 8 w h e r e e m p l o y e e h a d n o t p a r t i c i p a t e d i n i n i t i a l c o n t r a c t b e t w e e n h e r e m p l o y e r a n d h e r h u s b a n d ’ s e m p l o y e r b u t u s e d h e r p o s i t i o n t o “ p r o m o t e [ ] e x t e n s i v e a d d i t i o n a l u s e o f [ h e r h u s b a n d ’ s

e m p l o y e r ’ s ] s o f

t w a r e a n d p a r t i c i p a t e d i n t h e d e c i s i o n

- m a k i n g p r o c e s s t o i m p l e m e n t f

u r t h e r u s e o f [ h e r h u s b a n d ’ s e m p l o y e r ’ s ] p r o d u c t s ” )

.14

clients, Stadd submitt ed an invoice to MSU on J une 1—while he

was still working at NASA—in which Stadd soug ht
compensa tion for his involvement in the awa rd p ro ce ss. Moreoe ver, afte r he left NASA, Stadd soug ht a raise from MSU and listed “ the rec overy of the ear marke d NASA procur ement”

as a service h e h ad perf ormed for MSU. Finally

, Stadd disclosed in t h e ethics ag ree ment that his financ ial interests included h i s consulting service s to MSU and acknow ledg ed “that beca use [he] may resume [hi s] business rela tionships [wit h his clients] following [hi s] depar ture from NASA, [ he would] still be considere d to have a financ ial interest in [t hose] entities, and [would] there fore rec use [hi m s elf] from actions involving them.” Gov’t App. Tab 11 at 2. I n sum, we conclude there was sufficie nt evidenc e to support Stadd’s conviction on the section 208(a) count. 2. 18 U.S.C. § 1001 Count s
Section 1001 of T i t l e 18 of the U.S. Code provides, in rele vant par

t: [W ]hoever, in any matter within the jurisdiction of the executive, leg islative, or j u dicial branc h of the Gover n m ent of the United States, knowing ly and willfully

. . . makes any materia lly false, ficti t i o us, or fr audulent statement or repr esenta tion

. . . shall b e fined u n d er t his title[ or] imprisoned not more than 5
y ear s . . . .
18 U.S.C. § 1001(a)

. Stadd claims that t h e s tatements the
g overnme nt prosec uted him for making wer e not “mater ially ” false. He relies upon the Fif t h Circuit’s decision in United States v. Bake r , 626 F.2d 512 (5th Cir. 1980), which held that a statement is “ materia lly ” fa lse under se ction 1001 only if it ha s “the capa city to influence a deter mination require d to be made.” Id. at 514 (quotation marks and citation omitted). Stadd arg ues neither of his statements influence d a deter mination required to15

be made by NASA and neither was, there fore

, “m ater ially ” false. Stadd’s re l i an ce on Bake r is misplaced. The United State s Supreme Court has adopted a differ ent definition of materia lity under section 1001: “ I n g ener al, a false statement is materia l if it has a natura l tendenc y to influence

, or [i s] ca pable of i nfluenc ing, the decision of the decisionmaking body to which it was addre ssed.” Neder v. United States
, 527 U.S. 1, 16 (1999) (bra ckets in orig inal) (quotation marks and citation omitted). Neder ’s definition is of course the acc epted definition of materia lity

. See United States v. Moore
, 612 F. 3 d 6 9 8, 701 (D.C. Cir. 2010) (“We now join the other circ uits in holding a statement is materia l if it has a natura l tendenc y to influence

, or is c apable of influencing

, either a discrete decision or any other function of the ag ency to which it was ad d resse d.”); United Sta t es ex r el. Longhi v. United States
, 575 F.3d 458, 468 (5th Cir. 2009) (using Neder definition of materia lity ); United States

ex rel. Loughren v. Unum Grp.
, 613 F.3d 300, 307 (1 s t Cir. 2010) (same) ; United States v. Jack son , 546 F.3d 801, 815 (7th Cir. 2008) (same) ; United States v. Heppne r , 519 F.3d 744, 749 (8th Cir. 2008) (same) ; United States v. Bourseau
, 531 F.3d 1159, 1171 (9th Ci r. 2008) (same) ; Fla. State Conference of NAACP v. Browning
, 522 F.3d 1153, 1 1 7 3 (11t h Cir. 2008) (same) ; United States v. Rigas
, 490 F.3d 208, 231 (2d Cir. 2007) (same) ; United States v. McAuliffe

, 490 F.3d 526, 531 (6th Cir. 2007) (same) ; United States v. Fa l l o n , 470 F.3d 542, 546 (3d Cir. 2006) (same) ; United States v. Pasquantino
, 336 F.3d 321, 333 (4th Cir. 2003) (same)

. The jury char g e corr ectly used this definition of mater iality

. 9

T h e j u r y i n s t r u c t i o n r e a d : “ A s t a t e m e n t i s ‘ m a t e r i a l ’ i f i t h a s a 9

n a t u r a l t e n d e n c y t o i n f

l u e n c e , o r i s c a p a b l e o f i n f l u e n c i n g , t h e d e c i s i o n

o f t h e d e c i s i o n

- m a k i n g b o d y t o w h i c h i t w a s a d d r e s s e d

. P r o o f o f

a c t u a l r e l i a n c e o n t h e s t a t e m e n t i s n o t r e q u i r e d

. T h e G o v e r n m e n t n e e d

o n l y m a k e a r e a s o n a b l e s h o w i n g o f i t s p o t e n t i a l e f f e c t s

. ” A p p

. 1 1 8
, U n i t e d S t a t e s v

. S t a d d

, N o

. 0 9

- 3 1 2 1 ( D

. C

. C i r

. A p r

. 2 9
, 2 0 1 0 ) ( A p p

. )

.16

Stadd does not —and could not—arg u e t hat hi s statements in his May 12 e-ma il to Gre enstone—stateme nts contra dicted by S h aw ’s t es t i m o n y

— we re n o t ca p ab l e o f i n f l u e n c i n g Gre enstone’s actio n s as a lawy er in NASA’s gene ral counsel’s

o ff i ce. Stadd was a high- ranking —albeit interim—fede ral officia l who had a consultant business in the private secto r. I n anticipation of Stadd’s potential c onflicts of intere sts, NA SA’s
g ener al counsel’s office “wa nted to make sure that someone was assig ned to pa

y attention to [Stadd], [and] to g ive

. . . Stadd the level of help that he neede d to ensure compliance [ with the ethics laws].” Trial Tr. 53 (Aug

. 3, 2009) (testimony of Gre enstone). Given Stadd’s h i gh -leve l position and his ties to the private sector, a rea sonable jury could conclude Gre enstone would have p ai d specia l attention to Stadd. Gre enstone’s testimony plainly supported that conc l usion. See id. at 66 (Gre enstone’s test imony that he spent more ti me working with Stadd during S t ad d ’s tenure than with any of the “dozens” of other NASA employ ees he advised). A rea sonable j ury could further infer from the evidenc e that, if Stad d h ad acc urate ly
repor ted the substance of his dinne r conver sation with Shaw , it would have raised red flag s that would have led Gre enstone to inquire further

. Be cause Stadd misrepre sented his discussion with Shaw, howeve r, Gre enst one saw no need to take any further ac t i o n to ensure Stadd’s compliance with applicable ethics laws and acc epted Stadd’s asser tions. See Trial Tr. 9 (Aug

. 4, 2009) (Gre enstone’s testimony that he acc epted Stadd’s

e- m ai l repr esenta tions as true beca use he “had no rea son to doubt [] Stadd’s vera city ” and beca use Stadd expressed his “intention of working with [t he g ener al counsel’s office ] to follow the law” ).

Simi larly

, Stadd’s execution of the ethics ag ree ment g ave Gre enstone a “hig h level of confide nce” that Stadd understood, and pledg ed to comply with, the applicable eth i cs l aw s

. Id. at 17-18. We reje ct Stadd’s arg ument that his ex ec ution of the ethics ag ree ment cannot be materia l beca use he did not do so17

until afte r he met with Cleave. The ethics ag reement cover ed the entire term of Stadd’s service as a SGE, as evidenc ed by the
ag ree ment itself, which rec ited that it cover ed “[St add’s] fede ral service com me n ci ng April 28, 2005 .” Gov’t App. Tab 11 at 1 (emphasis added)

. Moreove r, Stadd pledg ed in the ag ree ment not to participa te in matters involving his clients “in the course of [hi s] NASA officia l duties” or to repr esent another person or org anization or hi s o wn private interests “[d] uring [hi s] tenure wi th NASA.” Id. at 2. That Stadd signe d the ag ree ment af t er h av i n g violated its terms makes it, if any thing, easie r t o conclude he “knowing ly and willfully ” made a “mater ially false, fictitious, or fra

udulent statement or repr esenta tion.” 18 U.S.C. § 1001(a) (2).
B. Jury Charg e on 18 U.S.C. § 208(a) Count Finally

, Stadd challeng es the distri ct court’s jury char g e descr ibing a violation of section 208

. We revie w jury 1 0 instructions de novo. Conseil Alain Aboudaram, S.A. v. de Groote
, 460 F.3d 46, 52 (D.C. Cir. 2006). St ad d co n t ends the district court should have instructed the jury using the lang uag e

T h e j u r y i n s t r u c t i o n r e c i t e d t h r e e e l e m e n t s o f a s e c t i o n 2 0 8 ( a ) 1 0

v i o l a t i o n :

O n e : D e f

e n d a n t S t a d d w a s a s p e c i a l G o v e r n m e n t

e m p l o y e e o f N A S A ;

T w o : T h e d e f

e n d a n t p a r t i c i p a t e d p e r s o n a l l y a n d

s u b s t a n t i a l l y a s a s p e c i a l G o v e r n m e n t e m p l o y e e t h r o u g h d e c i s i o n , a p p r o v a l

, d i s a p p r o v a l

,
r e c o m m e n d a t i o n , t h e r e n d e r i n g o f a d v i c e , i n v e s t i g a t i o n o r o t h e r w i s e i n a m a t t e r i n w h i c h h e k n e w t h a t h e h a d a f i n a n c i a l i n t e r e s t ; a n d

T h r e e : T h e d e f

e n d a n t a c t e d w i l l f

u l l y

.
A p p

. 1 1 7

.18

of 5 C.F.R. § 2640.103. Stadd maintains that NASA’s g ener al 1 1 counsel’s office advised him, using the reg ulation as t h e controlling law. Acc ord i ng to section 2640.103, a defe ndant violat es s ec tion 208(a) only “if the particula r matter [i n which he participa

tes] will have a direc t a

nd predic table eff

ect on [hi s financ ial] interest.” 5 C.F.R. § 2640.103(a)

. Acc ording ly

, Stadd
arg ues the district court omitted an essential element of the offe nse cha

rg ed in count one. H is arg ument fails.

E v en if “dire ct and predic table eff ect” wer e an element o f the offe nse on which the jury should have bee n instructed, its omission was, at most, harmless err or. See Neder

, 527 U.S. at 1 2 15 (“[T]he omission of an element [from a jury instruction] is an

err or that is sub

ject to harmless-e rror analy sis

. . . .”). “Where there has bee n an er

ror in instructions, we have held such er ror to be harm l es s i f the jury nece ssarily found fac ts that would have satisfied a proper instruction. ” Uni ted States v. Johnson

, 216 F.3d 1162, 1166 (D.C. Cir. 2000). Stadd’s counsel a rg ued to the jury that Stadd did not “know” he had a financ ial interest within the meaning of section 208(a) beca use he “believe d” his participa tion had to have a direc t and predic tabl e eff ect on his

S e c t i o n 2 6 4 0

. 1 0 3 w a s p r o m u l g a t e d u n d e r 1 8 U

. S

. C

. 1 1 § 2 0 8 ( d ) ( 2 )

, w h i c h a u t h o r i z e s t h e O f f i c e o f G o v e r n m e n t E t h i c s , a f t e r

c o n s u l t a t i o n w i t h t h e A t t o r n e y G e n e r a l

, t o “ i s s u e u n i f o r m r e g u l a t i o n s f o r t h e i s s u a n c e o f w a i v e r s a n d e x e m p t i o n s ” f r o m s e c t i o n 2 0 8 ( a ) a n d

t o “ p r o v i d e g u i d a n c e w i t h r e s p e c t t o t h e t y p e s o f i n t e r e s t s t h a t a r e n o t

s o s u b s t a n t i a l a s t o b e d e e m e d l i k e l y t o a f f e c t t h e i n t e g r i t y o f t h e

s e r v i c e s t h e G o v e r n m e n t m a y e x p e c t f r o m t h e e m p l o y e e

. ”

B e c a u s e w e c o n c l u d e t h a t a n y e r r o r r e g a r d i n g t h e c o u r t ’ s 1 2
f a i l u r e t o c h a r g e t h e j u r y t h a t S t a d d ’ s p a r t i c i p a t i o n m u s t h a v e h a d a

“ d i r e c t a n d p r e d i c t a b l e e f f e c t ” w a s h a r m l e s s , w e n e e d n o t d e c i d e

w h e t h e r a “ g u i d a n c e ” i s s u e d u n d e r 1 8 U

. S

. C

. § 2 0 8 ( d ) ( 2 ) ( B )

, a t l e a s t
t o t h e e x t e n t i t f

u r t h e r d e f

i n e s “ f i n a n c i a l i n t e r e s t , ” m u s t b e c o n s i d e r e d

a n e l e m e n t o f

t h e o f f e n s e a n d t h e r e f

o r e b e i n c l u d e d i n t h e j u r y c h a r g e

.19

financ ial interest for the rule to be trig ere d. Trial Tr. 40, 51, 59, 62 (Aug

. 6, 2009 ). T h e jury nonetheless convicted Stadd of violating sect i o n 208(a) and specific ally found that he had sufficie nt knowledg e to act “willfully .” W e can thus conclude it nece ssarily found facts that would have supported a g uilty verdic t had th e “dire ct and predic table eff ect” lang uag e been included. I n additio n , S t add’s e-ma ils to Gre enstone belie his claim t h at he believed he was prohibited from participa ting in

o n l y those matters with a direc t and predic table eff ect o n h i s financ ial interest. I n those e-ma ils, Stadd stated t h at h e was avoiding matters that dire ctly or indirectly aff ecte d his c lients. Gov’t App. Tabs 8, 9. Acc ordi n gl y , even if the district court

err ed by not including the “dire ct and predic table eff ec t” lang uag e in the jury

char g e, its err or wa s harmless.

For the fore g oing r easons, Stadd’s c onviction is affirmed.

So ordered

.