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United States v. Pickett

United States Court of Appeals for the District of Columbia Circuit

October 9, 2003, Argued ; January 9, 2004, Decided

No. 03-3018


 [**206]   [*63]  SENTELLE, Circuit Judge: 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 [***2]  to sustain a conviction as to the same element, we vacate Pickett's conviction and order the dismissal of the indictment.

I. Background

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.  [***3]  The security post was accessible by members of the public and consisted largely of a podium, a desk, a  [*64]   [**207]  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 -- SYMP- TOMS. THIS IS A CAPITOL POLICE TRAINING EXER- CIZE [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 [***4]  "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.

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353 F.3d 62 *; 359 U.S. App. D.C. 205 **; 2004 U.S. App. LEXIS 263 ***


Prior History:  [***1]  Appeal from the United States District Court for the District of Columbia. (No. 02cr00014-01).

United States v. Pickett, 209 F. Supp. 2d 84, 2002 U.S. Dist. LEXIS 9690 (D.D.C., 2002)

Disposition: Conviction vacated and reversed; indictment dismissed.


indictment, legislative branch, false statement, charges, element of an offense, powder, harmless error review, essential element, make a false statement, sentence, Anthrax, statutory language, fictitious, omission, tracks, fraudulent statement, sentencing factor, overwhelming, encompassed, quotation, desk

Criminal Law & Procedure, Fraud Against the Government, False Statements, General Overview, Indictments, Contents, Content Requirements, Grand Juries, Contents, Accusatory Instruments, Trials, Burdens of Proof, Prosecution, Elements, Fraud, Governments, Legislation, Interpretation, Securities Law, Investment Companies, Registration & Reporting