The opinion of the court was delivered by: WILLIAM H. ORRICK
Defendants, Michael E. Oettinger ("Oettinger") and Richard N. Hall ("Hall"), were charged in an eleven-count indictment
filed February 7, 1992, with conspiracy, bank fraud, bank misapplication, and bank bribery in a complex scheme allegedly involving fraudulent bank loans. Hall was the President and Chief Executive Officer of Westamerica Bank ("the Bank"), and Oettinger was president of a real estate development corporation. Oettinger allegedly promised or provided money and interest in properties to Hall in exchange for loans by the Bank.
Hall moves to dismiss Counts Seven and Nine of the indictment alleging receipt of commissions or gifts for procuring loans in violation of 18 U.S.C. § 215(a). For the reasons hereinafter stated, the Court denies Hall's motion to dismiss.
Counts Seven and Nine of the indictment charge that Hall "did directly and indirectly receive" (Count Seven) and "seek and agree to receive" (Count Nine) a twenty-five percent interest in two different projects "for and in connection with the making of loans" for the projects.
At the time of the alleged offenses, 18 U.S.C. § 215(a) (1983) was violated when any bank officer,
except as provided by law, directly or indirectly, . . . seeks, accepts, receives or agrees to receive anything of value . . . from any person or entity for or in connection with any transaction . . . .
(Emphasis added.) Because the indictment does not expressly allege that Hall received anything of value illegally, Hall claims the government has failed to plead an essential element of the crime, that is, that the receipt of the interest was not "as provided by law."
Hall first tries to analogize § 215(a) to 18 U.S.C. § 201, the federal bribery statute, and two cases that held that conviction required proof that the public official took a thing of value "otherwise than as provided by law for the proper discharge of official duty." United States v. Evans, 572 F.2d 455, 480 (5th Cir. 1978); see also United States v. Brewster, 165 U.S. App. D.C. 1, 506 F.2d 62 (D.C. Cir. 1974). While the language in this statute bears a strong similarity to that in § 215(a), the cases clearly do not deal with bank officers, and the analogy is inapt. As Hall concedes, Brewster was concerned with the differences and similarities between § 201(g) (gratuity) and § 201(c) (bribery). These cases are not controlling, both because they are not from the Ninth Circuit and, moreover, because the exception in § 201(a), "otherwise than as provided by law for the proper discharge of official duty," delineates a specific exception regarding the particular official's duties. In contrast, the language of § 215(a) only makes a broad, generalized exception for receipt of things of value "as provided by law." This general exception, if it is applicable, is not an essential element, but an affirmative defense for the defendant to present.
The Ninth Circuit is clear on the general law applicable to this issue.
The well-established rule is that a defendant who relies upon an exception to a statute made by a proviso or distinct clause, whether in the same section of the statute or elsewhere, has the burden of establishing and showing that he comes within the exception.
United States v. Henry, 615 F.2d 1223, 1234-35 (9th Cir. 1980). The government does not have the burden of presenting the issue until the defendant has made a showing that he falls within the exception. See United States v. Hester, 719 F.2d 1041, 1042-43 (9th Cir. 1983) (government need not allege non-Indian status of defendant for proper ...