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UNITED STATES v. WALKER

April 27, 1984

UNITED STATES OF AMERICA against EDGAR WALKER, Defendant.


The opinion of the court was delivered by: MCLAUGHLIN

MEMORANDUM AND ORDER

McLAUGHLIN, District Judge

 Defendant, an agent of the Drug Enforcement Administration ("DEA"), was charged in a two-count superseding indictment with the unauthorized sale of government property valued in excess of $100, 18 U.S.C. § 641, and with accepting property in return for violating his duty as a public official, 18 U.S.C. § 201(c)(3). On March 8, 1984, after a jury trial, defendant was acquitted of count one and convicted of count two. He now moves to set aside the guilty verdict on count two of the indictment. Fed. R. Crim. P. 29(c).

 Facts

 The superseding indictment under which defendant was charged resulted from defendant's relationship with Michael Soto, a government informant. The evidence adduced at trial established that defendant sought to purchase from Soto video recording equipment which defendant believed to have been stolen. To receive a discount on the price of the equipment, defendant agreed to provide Soto with information from DEA computer files ("N.A.D.D.I.S. information").

 Unknown to defendant, however, the video recorders were not stolen and the N.A.D.D.I.S. information was not genuine. Soto had informed defendant's superiors at D.E.A. of defendant's desire to purchase stolen video equipment and his willingness to convey N.A.D.D.I.S. information. Soto was supplied with video recorders and told to ask defendant for N.A.D.D.I.S. information relating to Frank Larsen and Karen Larsen. Fictitious N.A.D.D.I.S. files had been created for those persons. Defendant was arrested after conveying to Soto the information Soto requested in return for a discount in the price of the video recording equipment.

 Count one of the superseding indictment charged that defendant did, without authority, knowingly, willfully and unlawfully sell, convey and dispose of a record and thing of value of a department and agency of the United States, namely, information obtained from a DEA computer, which had a value in excess of $100. 18 U.S.C. § 641 (1976). The Court charged the jury that in order for it to convict defendant of this count, it had to find three elements beyond a reasonable doubt:

 First, that the defendant sold, conveyed and disposed of a record and thing of value belonging to an agency of the United States;

 Second, that the defendant did so knowingly, willfully and without authority; and

 Third, that the record and thing of value sold, conveyed and disposed of had a value in excess of $100 at the time charged in the indictment.

 Count two charged that defendant, while a public official, directly and indirectly asked for, exacted, solicited, sought, accepted and received something of value for himself, namely, a cash discount on the purchase of what he thought was stolen video recording equipment, in return for being induced to do an act in violation of his official duty, namely, providing information obtained from a DEA computer. 18 U.S.C. § 201(c)(3) (1976). The Court charged the jury that in order for it to convict defendant of this count, it had to find three elements beyond a reasonable doubt:

 First, that the defendant asked for, exacted, solicited, sought, accepted and received a discount on the purchase price of video recording equipment;

 Second, that at the time defendant did the above-mentioned acts, he was a public official; and

 Third, that the defendant did the above-mentioned acts in return for being induced to provide information obtained from a DEA computer, willfully and ...


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