Full opinion text
RANDOLPH, Circuit Judge: A jury convicted Deborah Gore Dean, a former employee of the Department of Housing and Urban Development, of three counts of conspiracy to defraud the federal government, one count of having accepted an illegal gratuity, four counts of perjury, and four counts of engaging in a scheme to conceal material facts. The district court sentenced Dean to two concurrent terms of twenty-one months’ confinement on the first two conspiracy counts and fined Dean $2,500 on each of those counts. On each of the remaining counts, the court sentenced Dean to twenty-one months’ confinement, to run concurrently with each other and with the sentences imposed under the first two conspiracy counts. On appeal, Dean maintains that the evidence presented at trial was insufficient to support her conviction; that the trial court erred in quashing subpoenas she served on a Senator and a Senate committee investigator; that the government engaged in prosecutorial misconduct, depriving her of a fair trial; and that the trial court improperly sentenced her. I In the spring of 1989, the Inspector General of the Department of Housing and Urban Development reported apparent mismanagement of a HUD program aimed at upgrading substandard housing for low-income tenants. Office of the INSPECTOR General, U.S. Department of Housing and Urban Development, Audit of Section 8 Moderate Rehabilitation Program (Apr. 26,1989) [hereinafter OIG Audit Report]. According to the Inspector General, top Department officials had, from 1984 to 1989, allocated hundreds of millions of dollars of program funds on an informal, undocumented and discretionary basis. Id. at 5. Ignoring regulations that should have governed their funding decisions, the officials directed funds to favored developers, many of whom had connections to the Department. Id. at 5-9. A subcommittee of the House Committee on Government Operations investigated further. House Comm, on Government Operations, Abuse and Mismanagement at HUD: Twenty-Fourth Report, H.R.Doc. No. 977, 101st Cong., 2d Sess. (1990) [hereinafter House Report], The subcommittee reported that, largely because of its administration of this program, the Department had become “synonymous with rampant abuse, favoritism, and mismanagement.” Id. at 111. The subcommittee identified Deborah Gore Dean — a prominent Department official — as a “key player” in the Department’s “giveaway game.” Id. at 4. On July 7, 1992, a grand jury returned a thirteen-count indictment against Dean. The indictment charged Dean with three counts of conspiracy in violation of 18 U.S.C. § 371, one count of accepting an illegal gratuity in violation of 18 U.S.C. § 201(c)(1)(B), four counts of perjury in violation of 18 U.S.C. § 1621, and five counts of concealment and false statements in violation of 18 U.S.C. § 1001. The district court dismissed one of the counts brought under 18 U.S.C. § 1001. On October 26, 1998, a jury found Dean guilty of the twelve remaining counts. The case against Dean, brought by an Independent Counsel, 28 U.S.C. § 594, centered on Dean’s actions as an administrator of the Department’s Section 8 Moderate Rehabilitation Program. Established in 1978, the program funded the upgrading of marginally deteriorated rental housing, and subsidized rents of lower-income families living in the improved units. To this end, Congress authorized the Department to pay owners of substandard housing, either directly or through public housing agencies, to upgrade their properties. Act of Oct. 31,1978, Pub.L. No. 95-557, § 206(e), 92 Stat. 2080, 2092. Regulations governing the program, published in 1979 and first revised in 1982, made state and local public housing authorities primarily responsible for program administration. After deciding which substandard properties qualified for funding, 24 C.F.R. §§ 882.503-882.504 (1982), public housing authorities contracted with owners and developers to rehabilitate the properties. 24 C.F.R. § 882.505 (1982). For owners and developers of adequately upgraded properties, 24 C.F.R. § 882.506 (1982), additional contracts guaranteed a fifteen-year stream of rental subsidies. 24 C.F.R. §§ 882.403(c), 882.409 (1982). Under the regulations, the Department oversaw public housing authorities’ administration of the Moderate Rehabilitation Program. The Department determined which public housing authorities were qualified to participate in the program, 24 C.F.R. § 882.501 (1982), and allocated funds to qualified public housing authorities under one-year contracts, 24 C.F.R. §§ 882.403, 882.501 (1982). Problems with administration of the program began in 1984 when Congress altered the way in which the Department allocated funds to public housing authorities. House Report at 10. Before 1984, the Department distributed program funds to housing authorities based on a eongressionally-mandated “fair share” formula. Housing and Community Development Act of 1974, Pub.L. No. 93-383, § 213(d)(1), 88 Stat. 633, 675. Under this formula, the amount of money a state received from the Department depended on its population, poverty, housing overcrowding, housing vacancies, the amount of substandard housing, and other criteria. House Report at 10. In 1984, at the Department’s request, Congress waived the fair share funding requirement. Act of Nov. 30, 1983, Pub.L. No. 98-181, § 201(a)(2), 97 Stat. 1153, 1176; House Report at 10. Although this meant that the Department no longer had to allocate funds on a geographically-mandated basis, it did not leave Moderate Rehabilitation Program funding decisions utterly up to the discretion of Department officials. House Report at 10. Rather, Congress instructed the Secretary of Housing and Urban Development to develop a formula to guide Department funding decisions, based on “the relative needs of different States ... as reflected in data as to population, poverty, housing overcrowding, housing vacancies, amount of substandard housing_” Act of Nov. 30, 1983, Pub.L. No. 98-181, § 201(a)(2), 97 Stat. 1153, 1176. In 1984, when Congress waived the fair share funding requirement, Department regulations required allocation of moderate rehabilitation funding among public housing authorities based on an assessment of which housing authorities’ applications had the best combination of five criteria. 24 C.F.R. § 882.501 (1984). Nothing in Congress’ waiver of the fair share funding requirement indicated that the regulation was to be repealed. Nor did the Department publish a notice suspending the regulation in the Federal Register. House Report at 12. Nevertheless, from 1984 through May 1988, Department officials did not allocate funds to public housing authorities on the basis of the criteria set forth in 24 C.F.R. § 882.501. Department officials instead used “informal and undocumented discretionary methods to allocate funding.” OIG Audit Report at 5. As a result, “individual allocations were relatively large; certain states and [housing authorities] received a disproportionate share of funding; and several former [Department] officials and employees participated in the [Moderate Rehabilitation Program].” Id. at 6. Moreover, the Inspector General determined that, in many cases, decisions to fund specific rehabilitation projects were made at the Departmental level, rather than by local public housing’ authorities as required by 24 C.F.R. §§ 882.503-882.504 (1982). OIG Audit Repoet at 6 (“[W]e noted conditions that indicated the Headquarters selection was targeted for a specific project within a [public housing authority’s] jurisdiction.”). The Inspector General drew these conclusions by reviewing the selection process for 69 moderate rehabilitation projects. For 19 of these projects, the Inspector General found that developers had approached housing authorities with claims that if the authority applied for funding, an award would probably be forthcoming. Id. at 7. For 25 projects, - developers seeking moderate rehabilitation awards paid consultants— including former Department officials — essentially to lobby the Department for funds. Id. And for 49 projects, ultimate awards made by the Department or the housing authority closely approximated the number of units owned or controlled by a specific developer. Id. II According to the government (as we shall refer to the Independent Counsel), Dean was one of the officials who, ignoring the Department’s published regulations, used her position to secure moderate rehabilitation funds for developers willing to pay huge fees to lobbyists with whom she associated. All three of the conspiracy counts in the indictment alleged that Dean had violated 18 U.S.C. § 371 by defrauding the. United States and the Department. The third conspiracy count added a charge that Dean conspired to violate 18 U.S.C. § 201(c)(1)(B) by accepting $4,000 in exchange for her performing official acts. Acceptance of the illegal gratuity was also the foundation of Count Four of the indictment, which charged Dean with violating 18 U.S.C. § 201(c)(1)(B). The remaining eight counts of the indictment stem from statements Dean made before the Senate Committee on Banking, Housing, and Urban Affairs, in a hearing held on August 6, 1987, regarding her nomination to be the Department’s Assistant Secretary of Community Planning and Development. Counts Five, Seven, Nine, and Eleven charged Dean with perjury in violation of 18 U.S.C. § 1621 for four statements Dean made at the Senate hearing. Those four statements were also the bases for Counts Six, Eight, Ten, and Twelve, which alleged that Dean engaged in a scheme to conceal material facts she had a duty to disclose, in violation of 18 U.S.C. § 1001. We will deal first with Dean’s contention that the jury did not have sufficient evidence before it to find her guilty on any of these twelve counts, a contention on which she can prevail only if, viewing the evidence in the light most favorable to the government, we conclude that no’ “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). As to the first three counts, we are mindful that “[p]artic-ipation in a criminal conspiracy need not be proved by direct evidence; a common purpose and plan may be inferred from a ‘development and a collocation of circumstances.’ ” Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942) (citation omitted). A. Conspiracy Charges To establish a conspiracy under 18 U.S.C. § 371, the government had to prove: (1) Dean agreed with at least one other person to defraud the United States or, for Count Three, to commit an offense against the United States by violating 18 U.S.C. § 201(c)(1)(B); (2) Dean knowingly participated in the conspiracy with the intent to defraud the United States or to commit an offense against the United States; and (3) at least one overt act was committed in furtherance of the conspiracy. United States v. Treadwell, 760 F.2d 327, 333 (D.C.Cir.1985), cert. denied, 474 U.S. 1064, 106 S.Ct. 814, 88 L.Ed.2d 788 (1986). The fraud covered by § 371 “reaches any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of Government.” Tanner v. United States, 483 U.S. 107, 128, 107 S.Ct. 2739, 2751, 97 L.Ed.2d 90 (1987) (internal quotations and citations omitted). Thus, if the government’s evidence showed that Dean conspired to impair the functioning of the Department of Housing and Urban Development, “no other form of injury to the Federal Government need be established for the conspiracy to.fall under § 371.” Id. According to the indictment, all three conspiracies followed the same pattern. Developers seeking moderate rehabilitation funding hired Dean’s co-conspirators, “consultants” who held themselves out as able to obtain moderate rehabilitation awards. Dean used her influence at the Department to make sure that projects operated by her co-conspirators’ clients received program monies or other favorable treatment at the Department. Dean’s co-conspirators were paid substantial “consulting fees” for their services. In exchange for Dean’s facilitating decisions favorable to their clients, her collaborators helped her professionally and politically, worked for free on her behalf, and in one instance, gave her $4,000. To hide the conspiracies, Dean concealed the way the Department actually made its funding decisions. Dean worked for the Department of Housing and Urban Development from 1982 to 1988. She began hér tenure as a Special Assistant to Department Secretary, Samuel R. Pierce, Jr., and as Director of the Executive Secretariat. House RefoRt at 86-87. In June 1984, she became Secretary Pierce’s top aide, with the title of Executive Assistant. Id. at 87. She resigned from this position in July 1987, after she was nominated to be Department Assistant Secretary of Community Planning and Development. Pending Senate Committee hearings on her nomination, Dean continued to work for the Department as a paid consultant. The Senate did not confirm Dean as Assistant Secretary, and on January 8, 1988, she left the Department. At trial, the government showed that Dean took an active role in administering the Moderate Rehabilitation Program after she became Secretary Pierce’s Executive Assistant. According to the testimony of former Department officials, Dean’s power stemmed from Secretary Pierce’s remote and uninvolved management of the Department. These officials characterized Secretary Pierce’s management style as “very strange and interesting,” “totally hands off,” “detached,” and “not involved to any significant degree.” In one official’s view, responsibility for “running the Department,” “up to and including funding decisions,” fell to Secretary Pierce’s Executive Assistant, the position Dean held from June 1984 to July 1987. A Department employee responsible for releasing moderate rehabilitation funds to the field testified that she met with Dean in September 1985, and Dean told her “which units [the Department] would fund,” often referring by name to individual developers’ or consultants’ projects. This official also testified that there were “no selection criteria for where the funding would ultimately go” and that funding decisions were “political.” In some cases, public housing authorities had not even requested money for the projects Dean directed the official to fund, and an executive assistant would “work with Debbie ... to be sure that the application was in and on file before the money would be released.” Another official recalled a meeting at which Dean dictated “which particular public housing authorities were to receive an allocation of Moderate Rehabilitation units.” Again, for a few of the public housing authorities Dean had named as funding recipients, there were no applications requesting funds, and Dean said that “she would take care of making sure that the letters were found or were obtained.” Dean herself behaved as though she had the power to approve grants of moderate rehabilitation funding at the Department, as suggested by a February 1, 1985, memorandum regarding the departure of the Assistant Secretary for Housing/Federal Housing Commissioner. Dean wrote the acting commissioner that Secretary Pierce’s Office would concur on all moderate rehabilitation funding decisions “not previously approved by both [the former commissioner] and myself,” until a new housing commissioner was named. To this general evidence — Dean’s facilitation of the funding of unnamed projects connected with unnamed developers and consultants; and her memorandum suggesting that she had the authority to approve moderate rehabilitation awards — the government added specifics, purportedly linking Dean to various co-conspirators and to funding decisions for particular moderate rehabilitation projects. Whether this specific evidence, when added to the general, supports Dean’s conviction on any of the three conspiracy counts is in dispute. 1. Count One As to the conspiracy alleged in the first count of the indictment, the co-conspirators allegedly were Dean, John N. Mitchell, Jack V. Brennan, Louie B. Nunn, and Richard D. Shelby. Nunn and Shelby were consultants who assisted developers in obtaining moderate rehabilitation funds. Nunn and Shelby engaged Mitchell to help them obtain federal housing money for these projects. Mitchell and his colleague Brennan worked for Global Research International, Inc., a consulting firm Mitchell formed in 1979. The indictment alleged that Dean and these four individuals conspired to defraud the government and committed overt acts with respect to four Florida housing developments: Park Towers Apartments, Marbilt, South Florida I and Arama. Martin Fine, a Florida housing developer, hired Shelby to help him get funding- to develop the Park Towers Apartments. Another Florida developer, Aristides Martinez, retained Nunn to get funding for the other three housing projects — Marbilt, South Florida I, and Arama. Mitchell was Dean’s mother’s companion and lived with Dean’s mother in the Georgetown section of Washington, D.C., and at the Dean family Potomac River estate in Maryland. Mitchell and Dean had a relationship comparable to father and daughter. Mitchell spoke of Dean as his daughter. In correspondence, Dean called Mitchell “Dad” or “Daddy,” and at trial, she described Mitchell as her “mentor/father-like person.” On Christmas Day 1986, Mitchell gave Dean a cheek for $500, and he paid approximately $3,300 for her birthday party in 1987. Mitchell also helped Dean advance in her career. Dean used his name as a reference in a 1984 security investigation, and he aided Dean in getting a job at the Department of Energy, where she worked before coming to the Department. He telephoned a Senator in support of Dean’s 1987 nomination for Assistant Secretary and asked Shelby to do “whatever [he] could to support her candidacy.” He called the Director of the Federal Bureau of Investigation regarding the Bureau’s investigation of Dean for that nomination. According to the government, Dean’s close relationship with Mitchell, as well as the professional favors he did for her, gave her an improper personal interest in assisting Mitchell in Department matters. With respect to the Park Towers Apartments in Miami, the government’s evidence of overt acts taken to further the conspiracy was as follows. Martin Fine, the developer associated with this project, hired EMF & Associates, a government relations firm headed by Eli M. Feinberg, to help him obtain enough federal money to rehabilitate the brdlding’s 143 apartments. Sometime in March 1985, Feinberg hired Richard Shelby to act as a consultant on the Park Towers project. Shelby asked Mitchell for assistance in obtaining the desired moderate rehabilitation funds, agreeing to split whatever fee he received from EMF with Mitchell. Shelby ultimately received $225,000 for his services connected with the project. To obtain moderate rehabilitation funding for the Park Towers project, Shelby brought an application to the Department, met with Department officials “three or four times” and made “numerous” telephone calls to different Department officials. Shelby testified that he dealt primarily with Silvio DeBartolo-meis (who was at the time Deputy Assistant Secretary of Housing), and also with Secretary Pierce’s Special Assistant R. Hunter Cushing and Dean. The Florida public housing authority received enough funding to rehabilitate 266 units in late November 1985. On May 28, 1986, in a letter signed by De-Bartolomeis, the Department approved the Florida housing authority’s request that the Department waive certain regulations that would have prevented Park Towers from participating in the Moderate Rehabilitation Program and from receiving a share of the funds allocated to the Florida housing authority. The government linked Dean to decisions made regarding the Park Towers Apartments with the following evidence. Dean’s calendar reflected that from August 1, 1985, to December 17,1987 — a period of more than two years — she scheduled thirteen lunch dates with Shelby. During this time, she also scheduled six meetings with Shelby. After a lunch on September 9, 1985 — at which Mitchell was also present — Shelby sent Dean a handwritten note that began: “Enclosed please find the information concerning the Section 8 Moderate Rehab Program in Miami....” The note concluded: “As always thank you for that time and effort which you must necessarily expend on my behalf. I appreciate your friendship.” On February 3, 1986, Shelby sent Dean information regarding Park Towers Apartments’ eligibility to receive moderate rehabilitation funding. Dean’s calendar shows that she had scheduled a lunch with Shelby that day. Also on that day, the project developer, Fine, wrote a memorandum to the Park Towers file reporting that Feinberg had “a very good telephone conversation with” Shelby. According to the memorandum, Shelby had “lunch with his friend at HUD,” who “indicated that this matter could be dealt with in a favorable manner.” We conclude that this evidence— whatever it may say about Mitchell and Shelby — is insufficient to connect Dean to a conspiracy involving the Park Towers project. The most damning thing the government points to is a memorandum, written by someone who had spoken to someone who had spoken to Shelby, stating that Shelby’s “friend” at the Department said problems with the project could be favorably handled. But no evidence ties Dean to the resolution of any of these problems — the waiver allowing Park Towers Apartments to receive funding was signed by DeBartolomeis, whom Shelby identified as his primary Department contact, and came from DeBartolomeis’ office. The only other piece of evidence finking Dean to Park Towers is the suggestion in a note written from Shelby to Dean that the two had discussed the project over lunch. Nothing shows that Dean had anything to do with the Department’s initial decision to allocate funds to the Florida public housing authority. This evidence simply cannot support a conclusion that Dean defrauded the United States and the Department by facilitating Department decisions favorable to the Park Towers project. With respect to the Marbilt project, the government’s evidence of overt acts by Dean and her alleged co-conspirators consisted mainly of a letter Dean sent to Mitchell, and two memoranda. The letter, in which Dean addresses Mitchell as “Dear Dad,” responds to an inquiry Mitchell made on behalf of Nunn and Martinez, apparently regarding the Department’s denial of Martinez’ requests for loan increases. After explaining that “the Department tried as best it could to be lenient,” Dean wrote: As you know, I stand behind the decision of the carreer [sic] people in Headquarters. Intervening in a situation like this would be like jogging through quicksand. I think it’s time we say “adiós”. The government claims that the sentence “I think it’s time we say ‘adiós’ ” would justify the jury in concluding that Dean and Mitchell were working together on this matter. We do not understand how. The two sentences preceding “adiós” suggest, if anything, that Dean was refusing to get involved, that she supported the Department’s adverse decision. In context, the sentence the government stresses may be plausibly interpreted as Dean’s advising Mitchell that the Department’s position on this matter was final. The sentence is insufficient to warrant any conclusion that Dean used her official position at the Department to further Mitchell’s or Martinez’ interests regarding Marbilt. With respect to the South Florida I project, the evidence is also too weak to support Dean’s conviction on Count One. In May 1986, the developer of the South Florida I project, Martinez, received a letter from the Dade County housing authority acknowledging receipt of his application for moderate rehabilitation funding. The letter continued: As you know we have no uncommitted Section 8 Moderate Rehabilitation monies. When we receive additional monies, we will choose applications based on our selection criteria. Martinez sent a copy of this letter to Nunn. In an accompanying letter, Martinez said the Dade County agency had suggested his project would receive funding from the next allocation of funds the agency received from the Department. Implicit in the letter is Martinez’ understanding that Nunn was to secure approval for an award of federal funds to the Dade County agency. Martinez wrote that it “would be much better” if the Department awarded funds sufficient to upgrade 219 units, the number of units for which he requested funding in his application, so that “there would be no confusion as to whose proposal it is.” Nunn sent copies of Martinez’ and the agency’s letters to Brennan, Mitchell’s colleague at Global Research, Inc. As they both acknowledged at trial, Brennan then met with Dean on June 6, 1986. At the meeting, which lasted only a few minutes, Brennan asked Dean to look into the status of the South Florida I project and gave Dean copies of the two letters. Dean forwarded the letter from the state agency to the Federal Housing Commissioner. In September 1986, an official directed the preparation of documents for several funding awards to public housing authorities. Included in the list of awards was one for 315 units to the Dade County housing authority. The official’s rough notes indicated the 315 units came from the addition of “96” and “219”— the figure 219 corresponding to the number of units for which Martinez wanted funding. A memorandum of a September 18, 1986, telephone call from Dean indicated that she had made certain changes to the list of awards, but the memorandum said nothing about the award to the Dade County authority- We find the evidence regarding the funding of the South Florida I project insufficient to constitute an overt act in furtherance of the conspiracy alleged in Count One. The government showed only that Dean briefly met with Brennan and that he gave her two documents. Nothing else — no internal Department document, no correspondence between Dean and her alleged co-conspirators, no testimony of the alleged co-conspirators— showed that Dean had anything to do with an award of moderate rehabilitation funding to the project. In its brief, the government makes much of Dean’s failure to' tell Secretary Pierce of Brennan’s request. Brief for United States at 21. We do not attach significance to this omission. Dean’s position required that she operate autonomously of Secretary Pierce in some instances. Without more concrete evidence linking Dean to the Department’s decision to award funding to the South Florida I project, the jury could not reasonably conclude that Dean took part in a conspiracy with respect to this project. With respect to the Arama project, the chief piece of evidence linking Dean to an improper Department decision is a July 5, 1984, letter Dean wrote to Nunn about Ara-ma Partnership’s request for additional funding. The letter reads: The Department is now in the process of completing the papers for the 293 units to the Public Housing Authority in Florida. Let me assure you that all the necessary • paperwork for the units will be transmitted by the end of this week and that Arama Partnership will definitely receive these units from HUD. This letter is damaging to Dean for two reasons. First, she wrote it before the Federal Housing Commissioner, the Department official with final responsibility for authorizing the disbursement of housing funds to public housing authorities, had notified the Florida public housing authority that the Department had approved its request for funding. Second, the letter assured Nunn that the Arama Partnership, rather than the Florida housing authority, would receive funding. Both the letter’s timing and its reference to project-specific funding suggest that federal regulations — -which made public housing authorities responsible for selecting which rehabilitation projects to fund, 24 C.F.R. §§ 882.503-882.504 (1982) — had been bypassed. In letters to other developers who inquired about funding, Dean wrote that regulations “prohibit HUD from making project specific allocations.” Given these irregularities, the July 5, 1984, letter is sufficient to support the verdict on Count One that Dean committed an overt act in furtherance of a conspiracy to defraud the Department. Dean testified at trial that she had asked the Federal Housing Commissioner whether the Arama project had been funded. The Commissioner confirmed that it had been, and her letter simply passed this information along to Nunn. But the former Housing Commissioner testified otherwise. Although he did “not remember Deborah Dean asking” him to sign off on the funding document, he stated that he did not know that the 293 units would go to a specific project in Miami. According to the former Commissioner, the letter ran contrary to the Department’s prohibition against project-specific awards. From this evidence, a jury could conclude that Dean had acted with Mitchell and Nunn to defraud the federal government by impairing the functioning of the Department. In sum, the government’s evidence is sufficient to show that Dean knowingly engaged in overt acts in furtherance of a conspiracy to defraud the federal government with respect to the Arama development. A. reasonable jury could not, however, conclude from the evidence presented at trial that Dean had collaborated with her alleged co-conspirators to facilitate the Department’s decisions regarding the other projects named in Count One — Park Towers, Marbilt, and South Florida I. To establish a conspiracy, the government need show only that one of the conspirators engaged in a single overt act to further the conspiracy. Braverman v. United States, 317 U.S. 49, 53, 63 S.Ct. 99, 101, 87 L.Ed. 23 (1942). Thus, on the strength of the evidence relating to the Ara-ma project, we sustain Dean’s conviction on the first conspiracy count. The overt acts proved by the government necessarily delineate the scope of the conspiracy. Cf. Fiswick v. United States, 329 U.S. 211, 216, 67 S.Ct. 224, 227, 91 L.Ed. 196 (1946) (“The overt acts averred and proved may thus mark the duration, as well as the scope of the conspiracy.”). The conspiracy the government proved involved only Dean, Mitchell and Nunn and related only to the funding of the Arama project. As discussed below, see infra pp. 666-67, we remand the case for the district court to reconsider its sentencing decision in light of this more limited conspiracy. 2. Count Two The second conspiracy count involved Dean, Andrew C. Sankin and, to a lesser degree, Thomas R. Broussard and Richard D. Shelby. Dean and Sankin violated 18 U.S.C. § 371, the government charged, with respect to two moderate rehabilitation projects: the Necho Allen Hotel and the Regent Street Apartments. According to the indictment, Dean and Sankin also conspired with Broussard on the Alameda Towers development and with Shelby on the Foxglenn and Eastern Avenue projects. The evidence was, we hold, insufficient to convict Dean with respect to the Regent Street, Foxglenn, and Eastern Avenue projects. However, there was sufficient evidence to sustain Dean’s conviction for conspiring to defraud the government in regard to the Necho Allen Hotel and the Alameda Towers projects. Sankin, a 1984 graduate of Georgetown University Law Center, began working as a consultant on Department matters immediately after he finished law school. He met Dean in the early 1980’s through their mutual acquaintance, DeBartolomeis. In 1984, Sankin also began managing the Stanley Arms Apartments, a 40-unit apartment building in Washington, D.C., owned by the Dean family. Dean was Sankin’s primary contact regarding Stanley Arms management matters. Although Sankin was paid a percentage of the Stanley Arms’ rental income for managing the complex, he performed other services for the Dean family for which he received no compensation. He prepared a lengthy request for permission to raise rents at the rent-controlled Stanley Arms Apartments. According to Sankin, the usual fee for preparing such an application was around $20,-000. Sankin testified that he asked Dean whether she would pay him for drafting the rent-increase application and that she responded that “she had no intention of doing so.” Sankin did not push the issue. A “potential rift with Ms. Dean over this issue,” he testified, could have jeopardized the “considerable business [Sankin did] with the Department of Housing and Urban Development.” Other evidence also shows that Sankin thought his work at the Stanley Arms Apartments was linked to his Department-related business. When he received a lump sum fee payment for his consulting services, Sankin gave the Stanley Arms’ day-to-day manager a bonus, because he “felt that the property management work that [the employee] was doing on the Stanley Arms was ... connected to and was important with the consulting work [Sankin] did at HUD.” Sankin and Dean’s relationship was not limited to his management of her family’s property. In addition to the work he did at the Stanley Arms Apartments, Sankin accompanied Dean to the closing for a condominium she bought and advised her regarding a dispute over maintenance fees with the condominium association. At Dean’s suggestion, he also contributed to several political and charitable organizations. The government introduced evidence showing that Sankin and Dean discussed moderate rehabilitation funding. On the basis of Sankin’s credit card receipts, the jury could have concluded that from May 1986 to September 1987 Sankin entertained Dean and discussed moderate rehabilitation funding or other Department matters with her on eight occasions. Five of the receipts referred to Dean by name. Three others described Sankin’s guest in a way that would permit a jury to infer that he had entertained Dean. One of Sankin’s clients was John B. Rosenthal, developer of the Necho Allen Hotel and Regent Street Apartments. The Necho Allen was a 65-unit moderate rehabilitation project for the elderly in Pottsville, Pennsylvania. Rosenthal hired Sankin to help him obtain the Department’s permission to charge rents at the Necho Allen Hotel exceeding those allowed by Department regulations. According to a December 17, 1984, letter from Rosenthal to Sankin, Rosenthal agreed to pay Sankin $10,000 if the Department approved the request for the Necho Allen exception before January 1, 1985. Although the Regional Housing Commissioner supported the Department’s granting the Necho Allen request, the Department initially denied it. On March 1, 1985, however, a memorandum from Secretary Pierce’s office reversed this position and approved the exception to Department regulations. The memorandum bore a duplicate of Secretary Pierce’s signature, authorized by Dean. ' Santón testified that part of his job as a consultant on the Necho Allen project was to “act as an advocate on behalf of the client with the Department and with Deborah Dean.” It was his understanding that as the Secretary’s Executive Assistant, Dean was in a position to waive Department regulations regarding rents for rehabilitated properties. Santón delivered the materials requesting the rental exception to Dean and met with Dean and several members of her staff regarding the project. The Regional Housing Commissioner made a second request, in February 1985, to the Secretary asking for approval for the Necho Allen exception rents. A form from the Secretary’s office stated that the letter was “taken to Deborah Dean ... on 2/28/85 (per her request). She will prepare final response.” A February 12, 1985, letter from Rosenthal to Dean — written before the memorandum approving the exception had been issued — thanked Dean “for the support [she had] provided in securing exception rents” and asked her to “provide evidence that exception market rents have been granted to the HUD area office.” The government contends, and we agree, that this evidence shows that Dean overruled Department officials to help Rosenthal obtain increased rents on the Necho Allen property. Dean asked that paperwork regarding the Necho Allen request for exception rents be directed to her office, and an internal Department document indicated that she would prepare the response. She authorized the use of Secretary Pierce’s name in connection with issuance of the memorandum granting the Necho Allen petition. Moreover, Rosen-thal communicated directly with Dean regarding the project, thanking her for her efforts and asking for confirmation of the Department’s grant of the exception. From this evidence, a reasonable jury could conclude that Dean improperly used her position at the Department .to facilitate approval of the Necho Allen petition for Sankin’s client. Rosenthal' also retained Santón to help him obtain additional moderate rehabilitation funding for the Regent Street Apartments in Philadelphia. Rosenthal’s company had at first acquired only five of six buildings on a block and had obtained federal funding to upgrade units in those buildings. After the company bought the sixth building, it sought additional moderate rehabilitation funds to upgrade the 25 units in that building. Santón testified that he contacted Dean to ask if “there was any possibility of receiving Mod Rehab funding for this housing authority and this property.” Rosenthal testified that he met with Dean to “make [a] case for the ... additional Section Eight grants [he] needed” for the Regent Street project. A letter dated July 16, 1985, from Dean to Rosenthal informed him that “all Mod-Rehab units have been committed for Fiscal Year 1985.” Dean also expressed her willingness to “discuss [the] Regent Street Project” near the beginning of the next fiscal year, but cautioned that “competition for these units is very intense.” Two internal Department documents dated September and November 1985 indicate that the Department allocated funds to rehabilitate 12 and 18 units to the Philadelphia Housing Authority. Dean’s name appears on neither of these internal documents. Although the Department official responsible for releasing federal funds to the field did not know whether these documents described funds that in fact went to the Regent Street project, the project ultimately received moderate rehabilitation funding — enough for 18 units in 1985 and for 13 units in 1986. San-tón said that Dean notified him about the funding award. The evidence on the Regent Street project is insufficient to show that Dean conspired with Santón to direct funding to the project. Connecting Dean to the project are only Sankin’s and Rosenthal’s statements that they discussed with Dean their desire to obtain federal funds. They did not testify that Dean told them that the project would receive funding, and the letter from Dean to Rosenthal mentions only generally her amenability to discuss funding for the project at a later time. No internal Department documents connect Dean to the funding decision. A jury could not reasonably infer from this sparse evidence that Dean attempted to facilitate the Department’s funding of the Regent Street project. Sankin, together with Thomas Broussard, also worked as a consultant for the Alameda Towers project, a housing development in Puerto Rico. Funds became available for the project after the Department withdrew money allocated to rehabilitate around 600 units in other Puerto Rican housing developments because of improprieties regarding the funding of those projects. After learning of the unexpected availability of moderate rehabilitation funds in Puerto Rico, Sankin asked Dean if he could solicit a client to compete for the funding. According to Sankin, Dean did not think him “experienced enough to work with this program” and suggested he team up with someone more seasoned in Department matters, such as Broussard. Sankin and Broussard joined forces,. and the two began looking for a development project that would qualify for the funds allocated to the Puerto Rico housing authority. Ultimately, in October 1985, Sankin and Broussard entered into an agreement with Cleofe Rubi and Eduardo Ballori. Brous-sard told Rubi and Ballori that he had “received assurances from people high up in HUD who were decisions makers ... that this kind of an application would be favorably looked upon” and that he “thought we could get 150 units without any difficulty based on that application.” According to Rubi, Brous-sard claimed that funds to rehabilitate “150 of those units [had been] assigned to him by the Secretary’s office and by Mrs. Debbie Dean.” Rubi and Ballori agreed to pay Sankin and Broussard $100,000 each upon the granting of funding sufficient to rehabilitate 300 units in the Alameda Towers development. The Department funded the Alameda Towers project, and Sankin and Broussard each received $75,000. Rubi testified that neither Broussard nor Sankin agreed to do any work in exchange for receiving these payments, but that he simply “bought” the right to receive moderate rehabilitation funding from them. Both Sankin and Broussard testified to Dean’s involvement in the Alameda Towers funding decisions. . Broussard contacted Dean after Sankin approached him about doing business, in Puerto Rico. In this conversation, the first of 20 to 25 telephone calls between Dean and Broussard, Dean “basically indicated to [Broussard] an application for approximately 150 units, maybe as many as 200 units would be looked upon favorably.” In a letter postmarked June 10, 1985, Brous-sard wrote Dean that the Department’s regional administrator for Puerto Rico was “putting [him] in contact with a group in old San Juan that is working on units.” After meeting with Rubi and Ballori, Broussard testified that he spoke with Dean, to “give her the details of [the] application.” According to Broussard, Dean was pleased with the proposal and she “indicated that when it came up for approval it would have her support and that [Broussard] should count on getting at least 150 units.” From Brous-sard’s testimony and his letter to Dean, we find the jury could reasonably have concluded that Dean used her position at the Department to facilitate funding for the Alame-da Towers project. As additional evidence of overt acts taken in furtherance of the conspiracy charged in Count Two, the government linked Dean to Department decisions regarding the Foxglenn and Eastern Avenue projects. Sankin collaborated with Shelby, a political consultant also named as a co-conspirator in the first conspiracy count, to obtain moderate rehabilitation funding for these projects. Sankin wanted to work with another person on Department consulting matters because he feared that his direct involvement in Department matters might appear improper, given his close friendship with DeBartolomeis. Sankin testified that Dean referred Shelby to him. Shelby’s job was to “work with the officials” at the Department, while Sankin dealt with the developer and the local housing authorities. With this division of responsibilities, Sankin’s communication with Dean regarding the projects was limited, although he said “she certainly knew that [Sankin] was working with Rick Shelby and Mr. Shelby would ask her about [Foxglenn] and [Sankin] discussed it with her from time to time as well.” Shelby testified that Dean was his primary Department contact for the Foxglenn and Eastern Avenue projects, but that he also met with R. Hunter Cushing and, on the Foxglenn project, DeBartolomeis. For each project, Shelby met with Dean three or four times and spoke with her on the phone. An employee who reported to Dean in 1986 testified that Dean brought Shelby into her office and told her “to take good care of him.” The Foxglenn project was awarded moderate rehabilitation funding, and Shelby and SanMn each received $110,000 for their services. Shelby and Santón were also paid $57,000 and approximately $20,000, respectively, for their work on the Eastern Avenue development; less than the sum for which they had initially contracted because the developer who hired them as consultants did not receive funding. Shelby confirmed that he received these consulting payments because he had “access to high-ranking government officials,” of whom Dean was one. We believe the evidence connecting Dean to the Foxglenn and Eastern Avenue projects is too tenuous to support a jury conclusion that Dean, Shelby and Santón conspired with regard to these projects. Nothing shows that Dean had anything to do with the Department’s decisions to award or not to award funding to these projects. The government’s evidence simply shows that Dean met with Shelby and Santón and that she discussed the Moderate Rehabilitation Program at these meetings. No evidence directly links Dean to any Department decision, favorable or unfavorable, made regarding these projects. In conclusion, the evidence relating to the Necho Allen Hotel and the Alameda Towers development was sufficient to establish that Dean knowingly participated in a conspiracy to facilitate decisions favorable to the developers of these projects, and thus to Santón. The evidence on the Regent Street, Eastern Avenue and Foxglenn projects does not support Dean’s conviction. As with Count One, see supra p. 651, we sustain Dean’s conviction, but remand the case so that the. trial court may reconsider Dean’s sentence in light of our decision. 3. Counts Three and Four Count Three charged Dean with conspiring with Louis Kitchin, another Department consultant, to defraud the United States, charges paralleling the allegations of Counts One and Two. The government supported this charge with evidence linking Dean and Kitchin to funding decisions made regarding four projects: Heritage Village in Atlanta, the Cutlerwood and Springwood Apartments in Miami, and the Woodcrest Retirement Center in San Diego. In addition, Count Three accused Dean and Kitchin of conspiring to violate 18 U.S.C. § 201(c)(1)(B), a bribery statute, because Dean accepted $4,000 from Kitchin. Count Four of the indictment charged Dean with violating 18 U.S.C. § 201(c)(1)(B). We hold that the evidence was sufficient to support a conviction on both counts. Before he began working on Department matters in April 1986, Kitchin was a political consultant and campaign manager. Kitchin knew Dean through mutual political connections before she began working at the Department. Kitchin described Dean as “the most knowledgeable person” at the Department and admitted that he and Dean had discussed his desire to obtain Moderate Rehabilitation Program funds for his clients’ projects. Jack Jennings, Kitchin’s business colleague, testified that Kitchin would “talk with Debbie to try to get mod rehab units, and on several occasions, [Kitchin] told [Jennings] that he was able through talking to her to get the mod rehab units.” Dean’s secretary testified that at some time Dean might have instructed her to tell Kitchin that moderate rehabilitation funds were “coming,” in response to an inquiry from Kitchin. At trial, Kitchin acknowledged approaching Dean on behalf of his Atlanta client, Nick Bazan, and explained that Bazan wanted to get funding to rehabilitate 200 units in Atlanta. According to Kitchin, Dean told him “that number for Atlanta could be done.” Bazan, the Atlanta developer, testified that Kitchin said he “would be able to obtain some Mod Rehab units” because “he had a friend, Debbie Dean ... and that he could talk to her ... or that office ... or he knew people in Washington.” Bazan also said Kitchin told him Kitchin planned to “have lunch with Debbie Dean ... to talk to her about obtaining the ... units.” Following Kitchin’s advice, Bazan had an Atlanta public housing authority sign a letter formally requesting moderate rehabilitation funding, which Bazan delivered to Kitchin. Less than a week later, on October 30, 1986, the Department allocated to the Atlanta housing authority enough funding to rehabilitate 200 units. Ultimately, however, the housing authority did not award funding to the Heritage Village project. Since the contract between Bazan and Kitchin provided that Bazan would pay Kitchin only if the project were funded, Kitchin received nothing for what he had done in connection with the Heritage Village project. In addition to Kitchin’s and Bazan’s testimony, two documents connect Dean to the Heritage Village project. The first showed that at some point Dean sent a handwritten list of nine different “Mod Rehab” projects, noting the number and types of units for each project, to the Federal Housing Commissioner. The list included “City of Atlanta, Ga. Dept, of Com. Dev.” with the notation “200 2 bdrms.” At the bottom of the list, Dean wrote: “Let me know when in action so I can call OMB. Very Important!” The second piece of evidence linking Dean to the Heritage Village project is a January 20, 1987, memorandum from Kitchin to Dean asking that the Department characterize Ba-zan’s application as involving a refinance, rather than a purchase, transaction. At the bottom of Kitchin’s memorandum, Dean wrote “Please see this through.” From this evidence, a reasonable juror could conclude that Dean collaborated with Kitchin to attempt to direct moderate rehabilitation funding to the Heritage Village project. The government presented evidence that Kitchin claimed he could get funding through Dean. Dean took action on a memorandum sent to her by Kitchin regarding the Heritage Village development. There is evidence showing that Dean was responsible for sending funding for the rehabilitation of 200 units to the Atlanta housing authority. That Bazan, Kitehin’s client, did not receive this funding does not alter our conclusion that the evidence was sufficient to show a conspiracy. The conspiracy, rather than the accomplishment of its objectives, is the gravamen of this offense. United States v. Evans, 572 F.2d 455, 483 (5th Cir.), cert. denied, 439 U.S. 870, 99 S.Ct. 200, 58 L.Ed.2d 182 (1978); cf. United States v. D’Amato, 39 F.3d 1249, 1257 (2d Cir.1994). As to the Cutlerwood and Spring-wood Apartments, Kitchin testified that he went “through the same process” that he followed for Heritage Village. He said he discussed with Dean “the units going to Miami” and that Dean replied “she’d do what she could to help.” Claude Dorsy, vice president of First Florida Equities, Ltd., testified that his company agreed to pay Kitchin $1,000 for each apartment unit for which it received moderate rehabilitation funding. First Florida Equities paid Kitchin $203,000 when the Department allocated the Dade County housing authority funding to rehabilitate 203 units. The only piece of documentary evidence linking Dean to the Cutlerwood and Springwood projects is a list, in her handwriting, of sixteen projects. Next to “Metro Dade” is the notation “letter” and the figure “203,” broken down as “153 — 1 BR, 48 — 2 BR, 2 — 0 BR.” Again, we find this evidence sufficient to constitute an overt act in furtherance of the conspiracy charged in Count Three. Under Department regulations, decisions whether to fund a specific moderate rehabilitation project were to be made by public housing authorities, not Department officials. 24 C.F.R. §§ 882.503-882.504 (1982). Dean’s handwritten note recording precisely the number of units for which Kitchin’s client wanted funding suggests that she and Kitch-in conspired to violate these provisions. From this note, Dean’s ties to Kitchin, and Kitchiris testimony that he had discussed the project with Dean, a reasonable jury could conclude that Kitchin and Dean had conspired to defraud the Department by directing moderate rehabilitation funds to Kitchin’s client. The final project involved in Count Three was the Woodcrest Retirement Center in San Diego, a development backed by Jack K. Jaynes. The lender on the project — Dean Witter — hired Kitehin to iron out problems the Woodcrest venture had experienced in its quest for moderate rehabilitation funds. These problems were significant. By January 1987, the Woodcrest application for funding had been denied moderate rehabilitation funding at three levels of the Department— the local Los Angeles office, the San Francisco regional office and the central office. Denial of the application was based on the conclusion that market conditions for retirement centers in San Diego would not support the kind of development Jaynes proposed. According to Kitchin, he contacted “[everyone from the Los Angeles HUD office to San Francisco and finally to Washington.” His contacts in Washington included Dean. In a handwritten note dated December 30, 1986, Dean asked the Federal Housing Commissioner [Thomas Demery] to “please look into” the denial of the Woodcrest proposal, because “an independent analysis seems in order.” A member of the Federal Housing Commissioner’s staff sent a memorandum to Dean on February 5,1987. According to the memorandum, the “[decision on Jaynes look[ed] OK.” Dean wrote back: “Could you be more specific about Jaynes. What does ‘OK’ mean exactly? Will we do the Hdqs study?” Another memorandum from the staff member followed. His office had analyzed the market for retirement centers according to a corrected method proposed by the developer. Under the modified analysis, the data supported the. developer’s conclusion that the market would support the Wood-crest project. Dean rejoined: “If we have a way to do it — why can’t we?” By May 21, 1987, the Department had concluded that the proposal warranted “reconsideration” and that the sponsor should be told to submit a “firm commitment application” to the Los Angeles office. This evidence is sufficient to show that Dean conspired with Kitchin to use her influence at the Department to facilitate a deeision favorable to Kitchin’s client. Kitchin testified that he contacted Dean on behalf of his clients who had business with the Department. In documents that refer by name to the Woodcrest proposal, Dean twice asked for another analysis of the market conditions for San Diego retirement centers. The Department reevaluated the proposal. A reasonable jury could conclude that Dean — in violation of regulations prohibiting Department officials from making funding decisions for specific projects, 24 C.F.R. §§ 882.503-882.504 (1982) — was behind the Department’s reversal of its opinion on the project, a decision that directly benefited Kitchin and Kitchin’s client. The evidence also supports the jury’s finding that Dean violated and conspired to violate 18 U.S.C. § 201(c)(1)(B), which is set forth in the margin. At trial, both Dean and Kitchin admitted that Dean had accepted Kitchin’s cheek for $4,000 in April 1987. Beyond this, Dean’s and the government’s versions of events diverge. According to Dean, Kitehin wanted to buy an apartment in the Watergate building, and she had agreed to help him find and decorate an apartment for $2,000. The rest of the money was to pay for furnishings for the apartment. Dean said that in June 1987, Kitchin told her he no longer wanted to buy a Washington apartment, whereupon she immediately wrote him a cheek for $4,250. Although Dean’s check register indicated she had written a $4,250 check to Kitchin on June 15,1987, she acknowledged that on that date there was not enough money in her account to cover the check. Kitehin never cashed the check, although Dean said she repeatedly asked him to do so. Dean said she gave Kitchin $500 in cash on two occasions, as partial repayment of the $4,000. The government’s evidence undercuts Dean’s story. At trial, Kitchin characterized the payment to Dean as a loan, testifying that he gave her the money because she was undergoing her Senate confirmation hearings and was “financially ... in some stress.” Bearing out this description of the payment, Kitchin noted “Loan” on the check he gave Dean. Moreover, the government’s evidence showed that Dean needed a loan at this time. When she deposited Kitchin’s check on May 6, 1987, her account was overdrawn $260.53, her bank had charged her account for insufficient funds four times since April 28, 1987, her April mortgage payment was late, and she owed $4,882.87 on a credit card. Kitchin’s business colleague, Jack Jennings, testified that Kitchin told him Dean “had purchased some furniture and that she needed around $4,000 ... and that he was thinking about giving her the money.” When Jennings asked whether Dean was going to pay the money back, Kitchin responded, “If she pays me back, she pays me back. If she doesn’t, she doesn’t.” Later, Kitchin told Jennings he had given Dean the money. Kitchin informed Jennings that, after the bank returned the cashed check to him, he had “either destroyed the check or hidden it.” Kitchin’s testimony about whether Dean had paid him back any portion of the $4,000 was inconsistent. On direct examination, he said that she had not paid him anything, but on earlier occasions he said he thought she had paid him back part of the money. The evidence is sufficient to sustain Dean’s convictions on both Counts Three and Four. Dean certainly accepted the money, and the jury could reasonably have concluded from the evidence at trial that she had never paid it back. Moreover, in light of the evidence that Kitchin and Kitchin’s clients had benefitted from Dean’s efforts at the Department, the jury was entitled to find that Dean had accepted the money in exchange for her performance of “official acts.” B. Perjury and 18 U.S.C. § 1001 Violations The other eight counts in the indictment arise from Dean’s testimony on August 6, 1987, before the Senate Committee on Banking, Housing and Urban Affairs regarding her nomination for Assistant Secretary for Community Planning and Development. Had the Senate confirmed Dean to this position, she would have advised the Department Secretary on community and economic development programs. Counts Five, Seven, Nine, and Eleven allege that Dean committed perjury in violation of 18 U.S.C. § 1621 for statements she made before the Senate committee. For each of the allegedly perjurious statements, the government also charged Dean — in Counts Six, Eight, Ten, and Twelve — with violations of 18 U.S.C. § 1001. In the words of the indictment, Dean violated § 1001 because she knowingly made these statements pursuant to “a trick, scheme and device to falsify, conceal and cover up material facts.” We reverse Dean’s convictions on Counts Six, Eight, Ten, and Twelve. Section 1001 criminalizes the concealment of material facts only in matters “within the jurisdiction of any department or agency of the United States.” 18 U.S.C. § 1001. After oral argument in this case, the Supreme Court reversed United States v. Bramblett, 348 U.S. 503, 509, 75 S.Ct. 504, 507, 99 L.Ed. 594 (1955), which had interpreted “department,” as used in § 1001, to include the executive, judicial and legislative branches of the federal government. Hubbard v. United States, — U.S.-,-, 115 S.Ct. 1754, 1765, 131 L.Ed.2d 779 (1995). In Hubbard, the Court narrowed the reach of § 1001 to matters within the executive branch, a coverage consistent with both the common usage of “department” and that term’s definition in Title 18. Id. at-, -, 115 S.Ct. at 1756-1758, 1765. Dean was convicted on Counts Six, Eight, Ten, and Twelve for statements she made before Congress. Her convictions on these counts therefore cannot stand. 1. Count Five Count Five is based on the following exchange between Dean and Senator William Proxmire, Chairman of the Committee. Senator Proxmire asked Dean: We received a number of complaints that, in 1987, this year, there has been no notification of funds availability to regional offices. Th