Full opinion text
ORDER KYLE, District Judge. This matter is before the Court on Defendant’s Objections to the December 27, 1995 Report and Recommendation (“R & R”) of Magistrate Judge Raymond L. Erickson. This matter was referred to Magistrate Judge Erickson for a report and recommendation pursuant to 28 U.S.C. § 686(b)(1)(A) and (B). The Defendant objects to the Magistrate Judge’s recommendation to (1) deny Defendant’s Motion to Dismiss Counts 1 through 4 of the Superseding Indictment on the grounds of vagueness and failure to state offenses; (2) deny Defendant’s Motion to Dismiss Counts 1 through 4 of the Superseding Indictment on the grounds of estoppel; (8) deny Defendant’s Motion to Dismiss Count 1, Paragraph 10(b) of the Superseding Indictment; (4) deny Defendant’s Motion to Dismiss Counts 14, 23 and 24 of the Superseding Indictment; and (5) deny Defendant’s Motion to Suppress Statement pursuant to Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967). The Court reviews a magistrate judge’s report and recommendation de novo and reviews a magistrate judge’s order under the clearly erroneous standard. 28 U.S.C. §§ 636(b)(1)(C) and 636(b)(1)(A); Banbury v. Omnitrition Int’l, Inc., 818 F.Supp. 276, 279 (D.Minn.1993). The Court has independently reviewed the R & R, the materials filed in support of and opposition to Defendant’s motions, the Transcript of the hearing held before the Magistrate Judge with respect to Defendant’s Motion to Suppress under Garrity, the Defendant’s Memorandum in Support of his Objections to the R & R, and the Government’s response. The R & R is thorough, well-reasoned, and exhaustively assesses the Defendant’s claims and the applicable law. The Court concurs with the Magistrate Judge’s legal analysis and finds his factual findings with respect to Garrity to be fully supported by the record. Accordingly, based on the foregoing and a de novo review of all the files, records, and proceedings herein, the Court will ADOPT the Report and Recommendation dated December 27, 1995 (Doc. No. 183) and IT IS ORDERED that: (1) Defendant’s Motion to Dismiss Counts 1 through 4 of the Superseding Indictment on the grounds of vagueness and failure to state offenses (Doc. Nos. 41 and 74) is DENIED; (2) Defendant’s Motion to Dismiss Counts 1 through 4 of the Superseding Indictment on estoppel grounds (Doc. No. 45) is DENIED; (3) Defendant’s Motion to Dismiss Count 1, Paragraph 10(b) of the Superseding Indictment (Doc. No. 43) is DENIED; (4) Defendant’s Motion to Dismiss Counts 14, 23 and 24 of the Superseding Indictment (Doc. No. 131) is DENIED; (5) Defendant’s Motion to Suppress Statement pursuant to Garrity v. New Jersey, 385 U.S. 493 (1967) (Doc. No. 65) is DENIED. ORDER and REPORT AND RECOMMENDATION ERICKSON, United States Magistrate Judge. At Duluth, in the District of Minnesota, this 27th day of December, 1995. Crim. No. 3-95-45(1) I. Introduction This matter came before the undersigned United States Magistrate Judge pursuant to a special assignment, made in accordance with the provisions of Title 28 U.S.C. § 636(b)(1)(A) and (B), upon the following Motions of the Defendant: 1. An Amended Motion to Dismiss Counts 1 through 4 of the Superseding Indictment on Vagueness and Due Process Grounds. 2. A Motion to Dismiss Counts 1 through 4 of the Superseding Indictment on Estop-pel Grounds. 3. A Motion to Dismiss Count 1, Paragraph 10(b) of the Superseding Indictment. 4. A Motion to Dismiss Counts 14, 23 and 24 of the Superseding Indictment. 5. A Motion to Suppress Statement. A Hearing on these Motions was conducted on November 8 and 9, 1995, at which time the Defendant appeared personally and by Peter Thompson and John W. Lundquist, Esqs., and the Government appeared by Henry J. Shea, Mark D. Larsen, and Janet A. Newberg, Assistant United States Attorneys. For reasons which follow, we recommend that the Motions be denied. II. Findings of Fact In a 52-page, 21-Count Superseding Indictment, that was filed on July 19, 1995, the Defendant was charged with one Count of participating in a conspiracy to defraud the United States, in violation of Title 18 U.S.C. § 371; with one Count of willfully making a false statement, in violation of Title 18 U.S.C. § 1001; with two Counts of failing to report to the Food and Drug Administration (“FDA”), an adverse experience, purportedly related to the use of an experimental drug, in violation of Title 21 U.S.C. §§ 331(e), 355(i) and 333(a)(2), and 21 C.F.R. § 312.32(c); with one Count of conspiring to commit offenses against the United States, in violation of Title 18 U.S.C. § 371; with two Counts of theft and embezzlement from the University of Minnesota, in violation of Title 18 U.S.C. §§ 666 and 2; with seven Counts of mail fraud, in violation of Title 18 U.S.C. §§ 1341 and 2; with five Counts of willfully filing a false tax return, in violation of Title 26 U.S.C. § 7206(1); with one Count of obstructing an administrative proceeding of the FDA, in violation of Title 18 U.S.C. §§ 1505 and 2; and with one Count of willfully obstructing the due administration of justice, in violation of Title 18 U.S.C. §§ 1503 and 2. The events which precipitated these charges, and which are germane to the Motions before the Court, may be briefly summarized. The charges pending against the Defendant arise from the development, the clinical investigation, and the marketing of Antilym-phocyte Globulin (“ALG”), a biologic drug product that is administered to suppress the immune response, and to prevent and treat the rejection of transplanted organs. In addition to being a medical doctor and the former Chairman of the Department of Surgery at the University’s Medical School, the Defendant is charged with being a sponsor of, and a clinical investigator with, the Minnesota ALG Program, during the period from January of 1971 through August of 1992. In those capacities, the Defendant would be responsible for preparing and signing various reports to the FDA in order to conduct any clinical studies of ALG that would involve human subjects. Beyond reporting any adverse clinical experiences that were associated with ALG, the Defendant was obliged to assure that the study was conducted according to its protocol, was subject to the monitoring of an institutional Review Board, and was being conducted only upon patients who had provided their “informed consent” to participate in the investigation. According to the Indictment, in his efforts to develop, to clinically study, and to market ALG, the Defendant engaged in a criminal conspiracy whose object was to enhance the Defendant’s “personal power and prestige through financial gain and otherwise.” The Indictment charges that the Defendant accomplished this object “by making materially false statements to the FDA, by failing to report material matters to the FDA, and by submitting fraudulent documents to the FDA, in repeated efforts to impede, impair, and obstruct the lawful governmental functions of the FDA.” Specifically, the Indictment alleges that the Defendant sold ALG for a profit, all the while denying such sales to the FDA; that, in violation of FDA regulations, the Defendant failed to obtain “informed consents” from his patients who received ALG in the course of the Defendant’s clinical investigation of the drug; that the Defendant made false statements to the FDA and the University concerning the identity, frequency and severity of any “adverse experiences” associated with the administration of ALG, including the failure to report nine known, fatal reactions to the drug; and that, as a result of the adverse reactions which were associated with a specific lot of ALG, the Defendant replaced that lot at the University, but did not recall the shipments from the same lot which had been sold to other transplant centers. The Superseding Indictment also charges the Defendant with a conspiracy to commit offenses against the United States that arose from the University’s receipt, during the period that is relevant to the Indictment, of substantial monetary grants from the National Institutes of Health (“NIH”). Indeed, according to the Superseding Indictment, during the period between 1986 and 1992, the University’s Medical School, alone, received in excess of $349,000,000.00 in NIH grants for medical and scientific research. In this respect, the Superseding Indictment asserts that the Defendant misappropriated funds from the University, which had been provided via these NIH grants or through the sale of ALG, by charging the University for travel expenses that had already been charged to the organization for whose benefit the expenses were incurred — a practice that is referred to as “excess reimbursement” or “double-billing.” Specifically, the Indictment contends that, on at least sixty occasions, during the period from prior to February of 1986 until about December of 1992, the Defendant submitted duplicative expense summaries and vouchers, by which he is purported to have been excessively reimbursed. Assertedly, during the period from January of 1988 to December of 1992, the excess reimbursements totalled the approximate amount of $76,000.00. These same claims of “double-billing” underlie a number of the mail fraud charges that have been leveled against the Defendant but, in addition, the Superseding Indictment alleges that the Defendant, with others, defrauded the University by appropriating, for his own personal use, funds that had been paid to him in order to defray certain clerical expenses that were incidental to his service as a joint Editor of a medical journal entitled Clinical Transplantation. The Indictment contends that, during the period from May 17, 1988 through December of 1994, the Defendant appropriated some $35,000.00 for his own use, while employing secretarial services, for the completion of these editorial-like functions, purportedly at the expense of the University. As a result of the use of the mails, in transmitting certain of the expense-related disbursements to the Defendant, he is also charged with mail fraud and with theft and embezzlement from the University. As well, the Indictment asserts five Counts of filing false income tax returns, which relate to the taxable years from 1988 through 1992, inclusive, and which arise from the Defendant’s asserted failure to report the travel reimbursements, and the expense allowances for clerical support, as his own personal income. Beyond these allegations, the Indictment contains two Counts which maintain that the Defendant engaged, directly or indirectly, in the destruction of inculpatory evidence. The first of these Counts asserts that, around September of 1992, employees of the University discovered an ALG-related letter that the Defendant wrote to the late James E. Coggins (“Coggins”), who had served as the Senior Administrator at the University’s Department of Surgery, and who had been a subordinate of the Defendant. Apparently, this letter described a visit that Richard Con-die, who then served as the Director of the Minnesota ALG Program, made to the Defendant and, purportedly, the letter contained a statement to the effect that “what we are doing with ALG may well be illegal.” The Indictment goes on to relate that, assert-edly, the Defendant advocated that both he and Coggins should destroy their respective copies of that letter. No copies of that letter are currently known to exist, and the Superseding Indictment contends that the loss of the letter had its intended effect in obstructing the course of a duly authorized FDA inquiry into the investigational administration of ALG. The second of the obstruction Counts maintains that the Defendant was instrumental in destroying certain travel records which related to his travel reimbursements for the years 1988, 1989, and 1990. According to the Indictment, some of these documents had been made available to the Defendant’s attorneys, or to their investigators, but the Defendant is said to have failed to produce the documents to the University’s counsel who had been designated to respond to the Grand Jury’s subpoenas in this matter. The Government contends that the documents were known to exist prior to the time that the other travel documents were forwarded to the University’s legal counsel. For the years 1989 and 1990, counsel for the Defendant did lodge some 43 pages of documents with the District Court, the Honorable David S. Doty presiding, subject to an asserted work product privilege. By Order dated April 27, 1995, the District Court, in effect, rejected the claimed privilege and directed counsel for the Defendants to produce the 43 pages to the Grand Jury. With respect to his Motion to Suppress his statement, the Defendant maintains that his interview with University officials, on February 9, 1993, was exacted by coercive means and, therefore, the contents of that interview should be suppressed as having violated the proscriptions of the Fifth Amendment to the United States Constitution. Being highly fact-intensive, we detail, somewhat exhaustively, the factual Record that bears upon this Motion. The factors, which precipitated the February 9 interview, were culminating since at least mid-August of 1992, when representatives of the FDA visited the University and placed a hold upon the ALG program. Thereafter, for a period of several months, the Defendant engaged in a series of interviews, that were conducted either by members of the media or by representatives of the University. According to the Record before us, the Defendant responded to questioning, during an appearance on the “Almanac” television program on August 23, 1992; he was interviewed by newspaper journalists on August 25 and October 28, 1992; and he personally appeared before a Committee of the Whole of the University’s Board of Regents, on September 10,1992. On each occasion, the Defendant was extensively questioned about the alleged improprieties in the conduct and management of the ALG program. Although the Defendant now suggests that, in retrospect, these appearances may not have been wholly voluntary, he has not sought to suppress any of the statements that he there made. [T-2 at 83-84 and 96]. By mid-December of 1992, a Federal Grand Jury, within this District, began to issue subpoenas to the University and to the Defendant, among others, as a part of an investigation of the ALG program for criminal wrongdoing. As a result, the Defendant submitted, on December 31, 1992, a request for indemnification of any attorneys’ fees, that he should incur in responding to the Grand Jury’s investigation, in accordance with the University’s published “Indemnification Policy.” In pertinent part, that Policy provides: Furthermore, this policy shall only apply in those cases where the employee seeking a defense and indemnification has given prompt written notice of the action, suit or proceeding to the Regents of the University of Minnesota, has requested defense by the University and has provided complete disclosure and cooperation in the defense of the claim or demand. As a part of his letter request to Dr. Nils Hasselmo (“Hasselmo”), the President of the University, the Defendant made the following representation: I have provided, and will provide, complete disclosure and cooperation in the defense of any claim or demand made against me with respect to my activities as a University of Minnesota employee. In response, Hasselmo wrote a letter to the Defendant’s attorney, Vance K. Opperman (“Opperman”), advising that the University was agreeable to advancing defense costs and fees, but with the initial amount being limited to $15,000.00 — “subject to increases at the sole discretion of [Hasselmo].” Hasselmo’s letter also contained the following proviso: The advancement of defense fees and costs is conditioned upon complete disclosure to and full cooperation with the University of Minnesota, as specified in the Regents Policy, to the extent consistent both with the right to independent representation by defense counsel, and any obligation to comply with legitimate requests of the government. With public concern over the alleged improprieties in the ALG program mounting, and with a continuing concern on the University’s part that only justifiable defense costs should be reimbursed, the Central Administration of the University — and, in particular, its President — were becoming increasingly insistent that the Defendant submit to an interview, by the University’s attorneys, concerning any irregularities in the ALG program. While the subject of an interview had been orally discussed, the first formal, -written request was submitted to Opperman in a letter from Janice M. Symchych (“Symchych”), an attorney who had been retained by the University, dated January 30, 1993. In addition to attaching an outline of the subjects that were contemplated for questioning, the letter advised, in part, as follows: The University would like to conduct the interview without any conditions attached, and without any promises of confidentiality, in order to ascertain the full facts regarding the ALG program. Given the Defendant’s standing as a managerial employee of the University, and as an individual who had requested indemnification for his defense costs, the University expected the Defendant’s “prompt cooperation.” By February 1, 1993, the University had forwarded the first installment of documents to Opperman, which would be the subject of any interview, and the University had identified four topics as being of “special, prioritized interest;” namely, “the FDA protocol, adverse reactions, commercialization, and managerial and supervisory responsibility for the ALG program.” On behalf of the University, Symchych also made the University’s intention clear that the purpose of the interview would be to determine whether the interests of the University and the Defendant were “consonant with one another,” and to determine “whether the University [would] proceed to take disciplinary action with respect to those involved in the ALG program.” In a letter dated February 3, 1993, Opper-man responded to the University’s request for an interview, in part, as follows: As you know, in the absence of a joint defense agreement, I have advised Dr. Na-jarían not to participate in additional interviews. He has, of course, had a number of interviews already, including those with University counsel, Mark Rotenberg, and others. * * * * * * Dr. Najarían has instructed me that it is his very strong wish to continue all interviews with University personnel as soon as that can be arranged, consonant with my understanding of the issues involved and the documents you have selected. I wish to repeat that I have advised Dr. Najarían that such interviews at this preliminary stage and in the absence of a joint defense agreement are unwise. ****** I don’t want there to be any misunderstanding about these interviews. The absence of a joint defense agreement would almost certainly dictate no communications of any kind. Nevertheless, and solely because of my Ghent’s desire to continue complete and total cooperation, I suggested on Friday that we enter into a modified joint defense agreement. Concurrent with these negotiations, and the exchange of correspondence between the attorneys, representatives of the University’s Central Administration were personally meeting with the Defendant and imploring him to submit to an interview. In particular, Dr. Robert Anderson (“Anderson”), who was then the University’s Vice President for Health Sciences, personally conferred with the Defendant on two occasions during the week before the interview was conducted. In his position as Vice President, Anderson had supervisory responsibility over, among others, the Dean of the Medical School, to whom the Defendant reported as the Chief of the Department of Surgery. Previously, Anderson had appeared with the Defendant before the Regent’s Committee of the Whole, on September 10, 1992, and he was of the view that the Defendant would be able to “rebut, quickly and effectively,” many of the allegations that had been directed against him. [T-l at 61]. Accordingly, Anderson urged the Defendant not to “stonewall.” Id. In response, the Defendant advised that his attorney had informed him, in unequivocal terms, that he should not participate in an interview. With that, Anderson’s first meeting with the Defendant ended. Within a day or so thereafter, Anderson returned to the Defendant and, again, stressed the importance of a meeting with University officials. Anderson was convinced that “not agreeing to the meeting was not an option” and, when the Defendant reiterated that his attorney was opposed to such a meeting, Anderson responded by saying: “[I]t’s your ass.” [T-l at 70]. Although he did not explain the meaning of his comment to the Defendant, Anderson felt satisfied that the Defendant knew its intendment since both of them had participated in athletics and, in his view, the import of his statement was unmistakable. Notably, Anderson did not attempt to be specific in his discussions with the Defendant, as witnessed by the following exchange: Q. Did you ever say to John Najarían that if you don’t give this interview, we’re going to penalize you financially? A. No. Q. Did you ever say to him that if you don’t give this interview, we’re going to try and take action to have you terminated as a tenured professor at this University? A. No. Q. Did you ever say that if you don’t give this interview, we’re somehow going to try to take away your ability to practice medicine at the University Hospital, if you don’t give this interview? A. No. [T-l at 82-83]. Nor did Hasselmo ever advise Anderson that he would terminate, or seek to terminate, the Defendant’s tenure — or otherwise “try and penalize him financially” — if he refused to consent to an interview. [T-1 at 83; T-1 at 96]. In Anderson’s view, Hasselmo wanted to hear the Defendant’s “story.” [T-1 at 95]. Nevertheless, at the close of Anderson’s second meeting with the Defendant, the issue of an interview was left unresolved, although Anderson felt that the Defendant would, ultimately, agree to participate. [T-1 at 70]. Following his second meeting with the Defendant, Anderson reported to Hasselmo that he thought the Defendant would consent to an interview and, shortly thereafter, Hassel-mo summoned the Defendant to his office. What occurred at this meeting is somewhat in dispute, but the parties do agree that Hasselmo requested the Defendant to participate in an interview and to postpone a planned trip to Egypt in order to be available at an early date. The Defendant agreed to both requests. Hasselmo has explained his insistence upon an interview in the following terms: [W]hat drove my decision and my desire for an interview was to try to give Dr. Najarían an opportunity to respond to what were increasingly serious charges against the ALG program before I took action that might involve removing him from responsibility for that program and possibly from responsibility for the surgery department. It was — they were serious matters that had been put before me, and I felt that I needed to give Dr. Najarían a chance to respond to those charges before taking action, although I could take action without such an interview. [T-l at 238-89], According to Hasselmo, he would not have disciplined the Defendant for refusing to conduct an interview and, as corroborated by Anderson, Hasselmo had not advised Anderson that, should the Defendant decline to be interviewed, he would be penalized in one form or another. As Hasselmo explained it: I had evidence before me that was quite serious, and I was prepared to act on that evidence, but the fact that he would refuse to submit to au interview or that he would refuse to respond to questions during an interview would not have been reason for me to take separate action against him. [T-l at 262], Hasselmo does acknowledge that, during his meeting with the Defendant, he did inform him that he was contemplating disciplinary action against those involved in the ALG program, [T-1 at ‘ 271-72], and he readily admits that, with mounting pressure from the media and from the Regents, he felt a sense of urgency in having an interview completed. [T-1 at 266]. Concerned about Hasselmo’s direct contact with the Defendant, Symchych telephoned Opperman to inform him that she had just learned that a private meeting was being conducted. According to Symchych, and her testimony has not been controverted, Opper-man told her “that it was okay with him that his client was meeting personally with President Hasselmo” and, as Symchych recalled it, Opperman stated that Hasselmo “could talk to Dr. Najarían until he was blue in the face, and that wouldn’t stop him from talking with President Hasselmo.” [T-2 at 165]. As the date of the Hearing approached, Opperman continued to press the University for a joint defense agreement. With equal adamance, the University continued to reject those overtures and, by February 5, 1993, Opperman began to actively research alternative sources of privilege which would preclude the Government’s use of the interview in its criminal investigation of the ALG program. As the Defendant put the matter, while he had nothing to hide and wanted to tell his side of the story, by this time, he “was becoming a target.” [T-2 at 38 and 41]. Approximately four days before the interview, Opperman’s research focused upon the doctrine espoused by the Supreme Court in Garrity v. New Jersey, 385 U.S. 493, 500, 87 S.Ct. 616, 620, 17 L.Ed.2d 562 (1967). Under Garrity, a public employee — such as the Defendant — is not required to either forfeit his right to silence, or forfeit his public employment. In the Defendant’s words: [Opperman] was working towards — the one thing that he continued to strive for was a joint defense agreement, and was making little progress in that area. He advised me that if we don’t have that privilege or the privilege of the Fifth Amendment, that we would have to seek another privilege, and that’s the first time I heard the word Garrity. [T-2 at 30-31], Although never reduced to a written communication between the attorneys, the Record confirms that, on February 6, 1993, Opper-man telephoned Symchych at her home in order to advise that he would be invoking the Garrity doctrine on his client’s behalf. Symchych was unimpressed as she had felt that, if the Defendant, or his attorney, were concerned about being compelled to speak, that concern would have been documented in the correspondence which had previously been exchanged by the parties. [T-2 at 138-39], On February 9, 1993, the Defendant’s interview commenced at approximately 7:30 a.m., and concluded at approximately 6:00 p.m. The Record is uncontroverted that, at the commencement of the interview, Opper-man made an oral statement which, as pertinent here, he has described as follows: The first thing was this was a compelled interview, that Dr. Najarían faced disciplinary action and termination if he refused to participate in the interview, and for that reason we were going ahead with the interview. [T-l at 190]. All concede that the no one at the interview challenged Opperman’s characterization of the interview as having been “compelled.” There is evidence, however, that counsel for the University followed Opperman’s statement with a reconfirmation that the contents of the interview were not confidential. [T-2 at 139]. On this Record, the Defendant contends that the interview of February 9 should be suppressed as having been coerced in violation of his Fifth Amendment right to silence, while the Government asserts that the Defendant’s resort to the Garrity doctrine is nothing short of an eleventh hour effort to create a privilege where none could properly lie. III. Discussion A. The Defendant’s Amended Motion to Dismiss Counts 1 through 4 of the Superseding Indictment on Vagueness and Due Process Grounds. Without benefit of pertinent legal authority, the Defendant contends that ALG, as a biologic product, is not subject to regulation under the Food, Drug and Cosmetic Act (“FDCA”), Title 21 U.S.C. § 301 et seq., and that he was immune to the statutory and regulatory violations of which he is charged in the Superseding Indictment. We reject the contention as without merit. Within the FDCA, a “drug,” which is subject to regulation, is defined as including “articles intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals.” Title 21 U.S.C. § 321(g)(B). Without doubt, ALG qualifies as a “drug,” within the meaning of the FDCA. The fact that ALG may also be subject to regulation under the Public Health Services Act (“PHSA”), Title 42 U.S.C. § 201 et seq., is inconsequential. On at least two occasions, our Court of Appeals has concluded that “animal biologies,” which are prescribed in the veterinary sciences, are subject to the FDA’s regulatory supervision, and we have no reason to find that a biologic, that is experimentally administered to humans— such as ALG — is exempt from the same regulatory scheme. See, Grand Laboratories, Inc. v. Harris, 660 F.2d 1288, 1289 (8th Cir.1981) (en banc), cert. denied, 456 U.S. 927, 102 S.Ct. 1972, 72 L.Ed.2d 442 (1982); United States v. Pro-Ag, Inc., 968 F.2d 681, 684 (8th Cir.1992). The Defendant draws nothing to our attention that counsels a different result, and we find that the regulatory schemes of the FDCA and the PHSA are not mutually exclusive in administratively regulating the management of unlicensed biological products. See, Title 21 U.S.C. § 392(b); Title 42 U.S.C. § 262(g). Alternatively, the Defendant argues that the regulatory scheme of the FDCA is unconstitutionally vague in requiring the Defendant to report to the FDA “serious and unexpected adverse experiences,” that were associated with the administration of ALG, to obtain “informed consents” from those patients to whom he would be administering ALG, and to forego cost recovery charges for his distribution of ALG. Of course, the constitutional concern arises when assertedly wrongful conduct is founded upon statutory language that “lacks sufficient definiteness that ordinary people can understand what conduct is prohibited,” Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983), or that “encourage[s] arbitrary and discriminatory enforcement.” Id.; Fields v. City of Omaha, 810 F.2d 830, 833 (8th Cir.1987). In short, the “void for vagueness” doctrine evolved “in part to ensure that poorly drafted or overly vague statutes are not used to ensnare the innocent.” United States v. Derezinski, 945 F.2d 1006, 1010 (8th Cir.1991). In support of his vagueness argument, the Defendant advances a series of hypothetieals which, admittedly, tend to suggest that, at least in some instances, a treating physician might experience some difficulty in ascertaining whether a particular clinical finding was attributable to the administration of ALG, or whether a written “informed consent” was infeasible. Of course, we can conceive of these theoretical possibilities without, as a matter of law, concluding that the requisite standards, for distinguishing lawful from unlawful conduct, were impermissibly vague. Generically, we find that none of the challenged terms or phrases are so facially vacuous as to ensnare the unwary, or to foil a Jury’s informed judgment on the issue of guilt or innocence. At this preliminary stage, we are not empowered to usurp the proper functions of the Jury by weighing the conflicting factual showings so as to conclude that, in a specific instance, an “informed consent” was not achievable, or an “adverse experience” was beyond ascertainment. Similarly, we are obliged to leave to the Jury any determination of whether the FDA permitted cost recovery in the dispensing of unlicensed drugs and, if so, under what circumstances. On the Record before us, we find no cause to conclude that the applicable criteria, for adjudging unlawful conduct, has placed the Defendant at his peril for want of adequate notice of a chargeable offense, or that the Defendant will be subjected to an arbitrary or capricious meting of justice by a factfinder who is unguided by the governing law. Therefore, finding no basis to dismiss Counts 1 through 4 on due process and vagueness grounds, we recommend that the Defendant’s Motion be denied. B. The Defendant’s Motion to Dismiss Counts 1 through h of the Superseding Indictment cm Estoppel Grounds. The Defendant contends that the FDA knew about the manner in which the ALG program was being conducted at the University, and that the Government should now be estopped from prosecuting the Defendant for alleged conduct that the FDA had countenanced over the course of years. Whether an estoppel defense may be asserted against the Government, in the context of a criminal proceeding, we need not decide for, in any event, the defense is so fact-dependent as to withstand dismissal, as a matter of law, with relative ease. Where, as here, there is conflicting evidence as to whether the elements of an estoppel defense can be shown, the issue is for a Jury to decide. See, United States v. French, 46 F.3d 710, 714 n. 6 (8th Cir.1995). Here, in contrast to the Defendant’s assertion of official acquiescence, the Superseding Indictment alleges that, repeatedly, FDA officials attempted to correct irregularities in the conduct of the ALG program, but without success. Whoever should, ultimately, win out on that issue would necessarily be as a result of a Jury’s determination. Accordingly, we recommend that the Defendant’s Motion to Dismiss Counts 1 through 4, on estoppel grounds, be denied. C. The Defendant’s Motion to Dismiss Count 1, Paragraph 10(b) of the Superseding Indictment. Relying heavily upon the holding in United States v. Minarik, 875 F.2d 1186 (6th Cir.1989), the Defendant maintains that the Government may not charge offenses under both subclauses of Title 18 U.S.C. § 371, which provides as follows: If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years or both. As is clear, Section 371 prohibits two distinct forms of conspiracy: 1) a conspiracy to commit a specific offense against the United States (“the offense clause”); and 2) a conspiracy to defraud the United States (“the defraud clause”). According to the Defendant, the Government should not be allowed to premise a conspiracy charge upon the generalized language of the Section’s “defraud clause,” when a specific statutory violation could be charged under the Section’s “offense clause.” Unfortunately for the Defendant, closely paralleling arguments have been considered — and rejected — by our Court of Appeals in United States v. Sileven, 985 F.2d 962, 965 (8th Cir.1993), and in United States v. Derezinski, supra at 1009-10. In doing so, the Court expressly observed: While it may be true that the Government could have also charged [the defendant] under the specific offense clause of section 371, it is well settled that when conduct violates more than one criminal statute, the Government may choose which statute it will apply. * * * The Government was within its discretion when it decided to prosecute [the defendant] under the general defraud clause of Section 371. United States v. Derezinski, supra at 1010. Moreover, upon the same precedential authorities, we reject the Defendant’s argument that Section 371 is unconstitutionally vague and overbroad — for the same argument was addressed and rejected in Derezinski — and we also reject his contention that the Superseding Indictment provided him with inadequate notice concerning the bases for the charges made — a contention that was spurned, on similar grounds, in Sileven. See, United States v. Derezinski, supra at 1010-11; United States v. Sileven, supra at 965. The Defendant draws no distinctions which would distinguish these holdings by our Court of Appeals, and our independent review has suggested none. Nevertheless, as the Supreme Court has instructed, “vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand.” United States v. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 714, 42 L.Ed.2d 706 (1975). We have carefully examined the twenty pages of Count 1, which is comprised of some twelve paragraphs which detail the “manner and means of the conspiracy,” together with more than thirty paragraphs which have listed the “overt acts” at play here, as well as the respective protagonists and the time frames involved. As to Paragraph 10(b), it specifically charges the Defendant with “defrauding] the United States,” by “hampering], impeding], impairing] and obstructing] by deceit and dishonest means, the lawful and legitimate functions of the FDA in its oversight of clinical investigations of experimental and investiga-tional biological drugs.” Under the test espoused in Kolender v. Lawson, supra, we conclude that an ordinary person would have no difficulty in understanding the charges that confront the Defendant, as expressed in the challenged Paragraph 10(b), and the bases for those charges. Accordingly, we recommend that his Motion to Dismiss that Paragraph be denied. D. The Defendant’s Motion to Dismiss Counts H, 2S and of the Superseding Indictment. Following the return of the Superseding Indictment, the Defendant filed his Motion to dismiss Counts 14, 23 and 24, which raised claims that had not been previously leveled. We address these Motions in the order presented by the parties. 1. Count 2L In Count 24, the Government charges that the Defendant obstructed the investigative efforts of the Grand Jury, in violation of Title 18 U.S.C. § 1503(a), which provides, in pertinent part, as follows: Whoever corruptly * * * influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be punished as provided by subsection (b). The Government alleges that, with respect to his travel records, which relate to the ALG program, the Defendant consciously failed to produce those records to the Grand Jury, notwithstanding the Jury’s subpoenas to that effect. In contrast, the Defendant contends that the Superseding Indictment concedes that the Grand Jury’s initial subpoenas did not require the production of the travel records at issue and, therefore, that the Defendant had no obligation to produce those records for the Grand Jury’s inspection. As the Government urges, however, we read the allegations of Count 24 as presenting alternative theories as to the Defendant’s wrongdoing. Under the first alternative, the Government contends that the initial Grand Jury subpoenas did encompass the travel documents which, the Government asserts, the Defendant was instrumental in assuring were never produced for the Grand Jury. Since the subpoenas are not before us, and in view of our obligation to view the allegations of a charging document as true in the context of a Motion to Dismiss, we have no basis upon which to conclude that a properly chargeable offense has not been raised. As a second alternative, the Government alleges that, even if the original Grand Jury subpoenas did not require the production of the disputed travel records, the Defendant had a reasonable basis to believe that those documents were implicated in the legitimate scope of the Grand Jury’s investigation and, therefore, that they should have been preserved. Relying upon the Supreme Court’s recent decision in United States v. Aguilar, — U.S. -, 115 S.Ct. 2357, 132 L.Ed.2d 520 (1995), the Defendant contends that there was not a sufficient nexus between the Grand Jury’s investigations, and the Defendants response to the Jury’s subpoenas, to support an obstruction charge under Section 1503. As the Court stated in Aguilar: [T]he act must have a relationship in time, causation or logic with the judicial proceedings. * * * In other words, the endeavor must have the “natural and probable effect” of interfering with the due administration of justice. * * * This is not to say that the defendant’s actions need not be successful; an “endeavor” suffices. * * * But * * * if the defendant lacks knowledge that his actions are likely to affect the judicial proceeding, he lacks the requisite intent to obstruct. United States v. Aguilar, supra — U.S. at -, 115 S.Ct. at 2362 [citations omitted]. We find the circumstances in Aguilar to be distinguishable from those presently confronting us. In Aguilar, the defendant was accused of making a false statement to an FBI agent and the Court concluded that, without more, such a misstatement did not implicate the defendant in obstructing a Grand Jury’s investigation since there was no showing that the defendant knew that his comments would be presented to the Grand Jury. As the Court explained: [W]hat use will be made of false testimony given to an investigating agent who has not been subpoenaed or otherwise directed to appear before the grand jury is far more speculative. We think it cannot be said to have the “natural and probable effect” of interfering with the due administration of justice. Id. at-, 115 S.Ct. at 2363. Of course, if — as the Government claims— the travel records at issue were responsive to the Grand Jury’s subpoenas, then the nexus between the Defendant’s purported acts, as they have been pled, would have “the ‘natural and probable effect’ of interfering with the due administration of justice.” Id. at-, 115 S.Ct. at 2362. Similarly, if the evidence, that should be adduced at trial, substantiates the Government’s allegation that the Defendant had reason to believe that the documents in question were within the scope of the Grand Jury’s investigation, then the nexus between the Defendant’s asserted wrongdoing, we think, and the Grand Jury’s administration of justice, would have a sufficiently close “relationship in time, causation or logic” as to legitimately support a submission of that issue to the Jury. Therefore, we reject this aspect of the Defendant’s Motion to Dismiss Count 24. Moreover, we find unconvincing the Defendant’s contention that the Section’s employment of the term “corruptly” is imper-missibly vague, merely because the Eighth Circuit’s Manual of Model Criminal Instructions contains a variety of potentially applicable definitions for that term. As our Court of Appeals has addressed the issue of vagueness: The challenger of a statute “must demonstrate that the law is impermissibly vague in all of its applications,” * * * and that the statute could never be applied in a valid manner. * * * Statutes should not be declared unconstitutionally vague by speculating about possible hypothetical applications. If a law is susceptible of a reasonable interpretation which supports its constitutionality, the court must accord the law that meaning. Planned Parenthood of Minnesota v. State of Minnesota, 910 F.2d 479, 482 (8th Cir.1990), quoting Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 497, 102 S.Ct. 1186, 1192-93, 71 L.Ed.2d 362 (1982). Here, the Defendant has failed in his burden of demonstrating that the term “corruptly,” as it is employed in Section 1503, is imper-missibly vague in all of its applications. We are satisfied that, as the issue should properly arise, the Court will be able to craft a Jury Instruction which will accurately capture the meaning of that term, as Congress has intended. Therefore, we recommend that the Defendant’s Motion to Dismiss Count 24 be denied. 2. Count 23. In Count 23, the Government contends that the Defendant committed acts, in violation of Title 18 U.S.C. § 1505, which provides, in relevant part, as follows: Whoever corruptly, or by threats of force, or by any threatening letter or communication influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, * * * shall be fined under this title or imprisoned not more than five years, or both. As underscored by the Defendant, this Count implicates him in the destruction of a writing in which the Defendant is alleged to admit that “what we are doing with ALG may well be illegal,” or “words to that effect.” Relying upon the Sixth Amendment’s guarantee that a defendant be informed of the “nature and cause of the accusation,” and the requirement of Rule 7(e), Federal Rules of Criminal Procedure, that an Indictment contain a “plain, concise and definite statement of the essential facts constituting the offense charged,” the Defendant maintains that the allegations of Count 23 are so nebulous and incomplete as to warrant a dismissal. We disagree. Although the Defendant accurately complains that the date of the writing at issue has not been detailed in the allegations of Count 23, the Count does specify the pertinent act of obstruction, and it identifies the writing, the author and the recipients of the writing, and the approximate date of the incident — namely, “in or about September 1992.” As such, the allegations of Count 23 are far more fact specific than those stricken in United States v. Abrams, 539 F.Supp. 378, 385 (S.D.N.Y.1982), upon which the Defendant heavily relies. In Abrams, the challenged charge failed to allege any factual detail, but merely reiterated the statutory language which underlaid the asserted offense. As explained by the Court: They [i.e., the disputed allegations] do not name the persons alleged to have been prevented from communicating to federal authorities; they do not identify the criminal statutes to which the obstructed information pertained. Nor do they detail any of the alleged acts of bribery or misrepresentation, or identify with any precision the criminal investigation involved. While the absence of any one of these factual elements alone might not be a basis for finding the counts insufficient, * * * the effect of all these factors considered together requires that these counts be dismissed. Id. at 385 [citations omitted]. We find the factual allegations of Count 23 to be sufficiently detailed so as to satisfy both the proscriptions of the Sixth Amendment and of Rule 7(c), Federal Rules of Criminal Procedure. See, e.g., United States v. Upton, 856 F.Supp. 727, 742-44 (E.D.N.Y.1994); United States v. Jackson, 850 F.Supp. 1481, 1499-1500 (D.Kan.1994); United States v. Schwimmer, 649 F.Supp. 544, 547-48 (E.D.N.Y.1986); United States v. Vitale, 635 F.Supp. 194 (S.D.N.Y.1986), cause dismissed, 795 F.2d 1006 (2nd Cir.1986). As a consequence, we recommend that the Defendant’s Motion to Dismiss Count 23 be denied. 3. Count H- In Count 14, the Government alleges that the Defendant stole or embezzled property which belonged to the University — a State agency that was receiving Federal funds — in violation of Title 18 U.S.C. § 666. The Defendant contends that the allegations of Count 14 fail to specify that the Defendant was acting as the agent of the University and, in his view, the property in question — secretarial and clerical reimbursement checks — should properly be treated as “bona fide salary, wages, fees or other compensation paid, or expenses reimbursed, in the usual course of business,” which are excepted from the coverage of Section 666. See, Title 18 U.S.C. § 666(c). While the evidence adduced at trial may, ultimately, substantiate the Defendant’s assertions, our obligation at this stage of the proceedings is to sustain the sufficiency of an Indictment “unless no reasonable construction can be said to charge the offense.” United States v. Morris, 18 F.3d 562, 568 (8th Cir.1994), citing United States v. Peterson, 867 F.2d 1110, 1114 (8th Cir.1989). Here, a common sense reading of the Superseding Indictment, as an integrated whole, allows a reasonable inference that, with respect to the allegations of Count 14, the Defendant was acting as the agent of the University, and particularly in his role as a University professor and clinical investigator. Moreover, whether the payments at issue were excepted from the proscriptive scope of Section 666 is, unavoidably, a fact-intensive question. The declarations of the Government aver — and the Defendant does not dispute — that he tendered two personal drafts to the University, in the approximate amount of $30,000, with a notation on the drafts that they represented payment for secretarial services for 1988 through 1993 in connection with the medical journal which serves as the focus of the offense asserted in Count 14. While, in and off itself, this act of repayment does not preclude an invocation of the exemption provided by Section 666(c), we think it does verify the fact-driven and, therefore, Jury-entrusted nature of the inquiry. Lastly, we find no merit to the Defendant’s contention that the allegations of Count 14 are multiplicitous of those contained in Counts 11 through 13. Offenses are separate and, therefore, not multiplieitous, if each offense requires proof of an element not required by the other. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). Counts 11 through 13 are premised upon a violation of the mail fraud Statute, Title 18 U.S.C. § 1341, while, as we have noted, Count 14 rests upon a purported violation of Title 18 U.S.C. § 666. Unquestionably, these predicate Statutes require different elements of proof, and impermissible multiplicity is not presented. Therefore, the Motion to Dismiss Counts 14, 23 and 24, should be denied. E. The Defendant’s Motion to Suppress Statement. Were the issue before us simply one of ascertaining whether uncommon pressures bore upon the Defendant’s decision to be interviewed, we would have no hesitancy in ruling in his favor. Without question, the Defendant was substantially influenced by a multitude of factors in consenting to an interview. Nor do we doubt that the University’s interest in conducting an interview of the Defendant was anything short of formidable. Nevertheless, our reading of the governing law does not suggest that the Garrity doctrine is founded upon sophomoric naiveté. As a recurrent human experience, we seriously doubt that any of life’s truly dramatic decisions are unattended by the weighing of countervailing considerations which, almost ineluctably, are at great odds. Not surprisingly, therefore, we have yet to uncover any decision in which Garrity has been applied solely because a public employee was importuned to provide an interview— and the parties have not drawn one to our attention. Clearly, to evoke a Garrity response, something more is required than an employer’s persistent request that questioning ensue. See, Minnesota v. Murphy, 465 U.S. 420, 435-36, 104 S.Ct. 1136, 1146-47, 79 L.Ed.2d 409 (1984) (recognizing that, beyond the “ordinary case in which a witness is merely required to appear and give testimony,” the “extra, impermissible step” is the imposition of a penalty for the refusal to testify.) Of necessity, therefore, we first address the standard by which our analysis is focused. In advancing their respective arguments, the parties have each championed an interpretation of the Garrity doctrine which, at least facially, conflicts with the other. For his part, the Defendant relies upon the District of Columbia Court of Appeals’ decision in United States v. Friedrick, 842 F.2d 382, 395 (D.C.Cir.1988), in which the Court interpreted the Garrity rule as follows; Under the Garrity-Lefkowitz-Murphy line of authority, [the defendant] must have in fact believed his * * * statements to be compelled on threat of loss of job and this belief must have been objectively reasonable. Accordingly, Friedrich is cited as espousing a two-pronged test in determining the applicability of Garrity: First, the defendant must have subjectively believed that he was compelled to give a statement upon threat of loss of job. Second, this belief must have been objectively reasonable at the time the statement was made. United States v. Camacho, 739 F.Supp. 1504, 1515 (S.D.Fla.1990) (emphasis in original). In turn, the Government argues that the standard deployed in Friedrich is too detached and too expansive to properly guide the Court’s analysis. Instead, the Government relies upon the First Circuit Court of Appeals’ decision in United States v. Indorato, 628 F.2d 711, 716 (1st Cir.1980), in which the Court summarized the Garrity rule as follows: In all of the cases flowing from Garrity, there are two common features: (1) the person being investigated is explicitly told that failure to waive his constitutional right against self-incrimination will result in his discharge from public employment (or a similarly severe sanction imposed in the case of private citizens); and (2) there is a statute or municipal ordinance mandating such procedure. While somewhat more dated than the construction provided by the District of Columbia Court of Appeals, the interpretation expressed in Indorato has recently been reconfirmed by the First Circuit in Singer v. State of Maine, 49 F.3d 837, 846-47 (1st Cir.1995). Notably, however, neither the reading of Garrity in Friedrich, or in Indo-rato, has captured, in any predominant way, the adherence of those Courts that have followed. In our view, the two lines of decision — and, necessarily, the cases upon which they are premised — are founded upon a Statute, Regulation, Ordinance or Rule which precludes the interrogee from refusing to be questioned except at the expense of his employment, or an equivalently significant economic penalty. To this extent, Indorato may present a reading of Garrity that is unnecessarily cramped, at least to the extent that Indorato speaks only in terms of a “statute or municipal ordinance,” since Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967), applied the Garrity privilege, even in the absence of a “statute or municipal ordinance.” On the other hand, we are not aware of any decision in which the Garrity rule was applied in the absence of a privilege-waiving Statute, Regulation, Ordinance or Rule, and solely because the interrogee was persuaded by forces, both internal and external, to explain those actions upon which the inquiry has focused. Here, of course, no one seriously contends that any Statute, Regulation, Ordinance or Rule, required the Defendant to be interviewed or else face the loss of his employment. Indeed, his counsel has testified that he was not aware of any policy, formal or informal, by which the University would terminate those who refused to be questioned about perceived on-the-job misconduct. [T-l at 203 and 218]. Because we find no compulsion, based upon an authoritatively promulgated mandate, to have coerced the Defendant into providing a statement — at the pain of losing his employment — we find little in the reported decisions which is apposite here. In an analogous context, however, our Court of Appeals was confronted with a public employee who faced the same dilemma as that which confronted the Defendant on February 9, 1993. The Court framed the employee’s predicament as follows: This appeal poses the difficult constitutional question of whether an indicted individual’s fifth amendment privilege against self-incrimination is threatened if he must participate in an administrative proceeding, as the sole means of contesting the loss of his job, which involves consideration of matters related to or similar to those for which a criminal indictment has been issued. Even where, as here, the accused employee is free to assert the privilege in the administrative proceeding, the choices available to him are still undesirable. He may either elect to remain silent while the administrative commission hears evidence of his criminal conduct, and virtually guarantee the loss of his job, or he may voluntarily testify and waive the fifth amendment privilege. Diebold v. Civil Service Commission, 611 F.2d 697, 698 (8th Cir.1979). The Court concluded that “the dilemma forced upon the [employee] was a constitutionally permissible one.” Id. at 699. As the Court explained: There exists here no requirement that [the employee] waive his immunity under the fifth amendment. Nor is there a threat that he will be fired simply for invoking that privilege. See Baxter v. Palmigiano, 425 U.S. 308, 317-18, 96 S.Ct. 1551, 1557-1558, 47 L.Ed.2d 810 (1976). (“In this respect, this case is very different from the circumstances before the Court in the Garrity-Lefkow-itz decisions, where refusal to submit to interrogation and to waive the Fifth Amendment privilege, standing alone and without regard to the other evidence, resulted in loss of employment or opportunity to contract with the State.”) (Emphasis added.). Since there is no showing that [the employee] must either answer questions which might incriminate him in future criminal proceedings or forfeit his job, we find no impermissible sanction in the Commission’s rules. Id. at 701. The very same may be said here. While we recognize that the Defendant, and his former counsel, have testified that the prospect of an interview provided the Defendant with no choice but to submit to the University’s questioning, we are not persuaded that he was impermissibly threatened, with severe economic loss, if he were to invoke his Fifth Amendment rights. In appraising the evidence before us, we find, based upon his demeanor and upon those factors which properly bear upon the issue, that the Defendant has been something less than a fully credible historian, for his testimony is appreciably undermined by overstatement and by revisionism. Although we limit ourselves to two examples, they are intended to be illustrative and not exhaustive. As to the first, we note that, when questioned on direct examination about the content of his private meeting with Hassel-mo, the Defendant testified as follows: Q. * * * And did [Hasselmo] also ask you to cancel the trip? A. He did. Q. All right. And what was your response to what he was asking you to do? A. I told him that I thought that it was unfair at this point to, one, cancel the trip; and that, two, that I would agree to the interview if he demanded that I do so, which he did. And I think that’s about it. It was a short meeting. He had always been rather pleasant to me. This was a very curt, short meeting in which I was told what to do. Q. And at that point what did you view your options to be? A. I had no options. Either that if I did take the Fifth Amendment privilege, that either way he was going to remove me from office. He so stated. [T-2 at 33-34], Left unqualified, this testimony would have dramatically fortified the Defendant’s insistence that Hasselmo demanded his waiver of his Fifth Amendment protections — at the threat of his removal from office. Nevertheless, when questioned on this same subject during the course of his cross-examination, the Defendant testified as follows: Q. Did you testify today that President Hasselmo made some reference to the Fifth Amendment, that if you took the Fifth Amendment, he would remove you from office? [Objection to question as a misstatement of the Defendant’s testimony overruled.] A Those words were not used. I said — I asked him what would happen if I didn’t. He said there are very serious allegations that are present and that disciplinary action would take place. I interpreted that to mean what you said. Q. Sir, didn’t you state earlier today that President Hasselmo said he would remove you from offic