United States v. Nofziger - 278 U.S. App. D.C. 340, 878 F.2d 442 (1989)

Rule:

As interpreted by the Department of Justice, 18 U.S.C.S. § 207(c) provides that no covered employee shall, within one year after such employment has ceased, knowingly engage in the conduct described in the next sentence. The prohibited knowing conduct is that of acting as attorney or agent in any formal or informal appearance before, or with the intent to influence making any oral or written communication (1) to the Department of Justice, or any employee thereof, (2) in connection with any rulemaking or any other described matter, and (3) which is pending before the department or in which it has a direct and substantial interest. 28 C.F.R. § 45.735-7(d).

Facts:

Franklyn C. Nofziger, was an assistant to the President for Political Affairs in the White House. After he resigned, he established a political consulting firm. The government alleged that lobbying undertaken by Nofziger on behalf of his clients violated § 207(c). The district court convicted Nofziger of communicating with officials at the White House in violation of the Ethics in Government Act, 18 U.S.C.S. § 207(c). Nofziger appealed.

Issue:

Was the government required to prove that Nofziger had knowledge of all of the facts making his conduct criminal?

Answer:

Yes.

Conclusion:

The court reversed Nofziger’s conviction holding that § 207(c) was ambiguous. Because of § 207(c)'s ambiguity, rules of statutory construction dictated that the court interpret it as requiring the government to demonstrate that defendant had knowledge of the facts that made his conduct criminal. The district court should have dismissed the indictment filed by the prosecution because it failed to impose this burden on the government. Under the rule of lenity and the presumption of mens rea, Nofziger’s conviction was set aside because it was not based on a finding that he had knowledge of each element of the offenses charged.