CHASING GOOD-TIME CHARLIE

By Viveca Novak

It was a long way from the family funeral-home business in Yazoo City, Miss., to a seat in the President's Cabinet in Washington. It has been an even longer trip back. Since he became one of the President's discredited men and resigned in 1994, former Agriculture Secretary Mike Espy has been practicing law in his home state--and waiting for what finally came last week.

After spending almost three years and more than $9 million, Donald Smaltz became the first among the independent counsels examining the behavior of the Clinton Administration to bring charges against his main quarry. Smaltz threw a whole catalog at Espy, producing multiple charges out of a small set of incidents. The 39 criminal counts accuse Espy of accepting gifts and favors from government-regulated businesses and then trying to cover it up.

The charges allege that among items Espy accepted were football playoff tickets, plane trips and limousine rides from Tyson Foods; luggage and U.S. Open tennis tickets from Sun-Diamond Growers; and tickets to an N.B.A. championship game. In all, Smaltz values the freebies at $35,458. As the transgressions came to light, the indictment claims, Espy scrambled to conceal them or to make belated reimbursement. He may be most vulnerable to the charge that he had a clerk alter an itinerary for a January 1994 Dallas Cowboys football game to delete references to Tyson before giving the document to investigators. Smaltz is likely to pursue indictments of Tyson, its head of governmental affairs and one of its lobbyists. Espy's lawyer Reid Weingarten did not deny any of the charges but accused Smaltz of distorting "trivial, personal and entirely benign activities" into criminal wrongdoing.

Once favored to become Mississippi's first black Governor, Espy is looking at more than six years in prison if convicted on all counts. But many familiar with the case believe Smaltz is unlikely to convince a jury that the young, personable Espy schemed to defraud the people of the U.S.

Indeed, pretrial motions planned by Espy's lawyers could slim the indictment down by the time the case goes to trial, possibly next spring or summer. Some charges are based on a law to prevent meat inspectors from being bribed into approving unsavory products--a rarely used statute and one never before applied to a Secretary of Agriculture. Another area where Smaltz may have trouble before a judge or jury: sources close to Tyson say the football tickets and other items were solicited by Espy's then girlfriend, without his direction.

To prove his charges, Smaltz does not need to show that Espy returned favors for gifts he received. But a jury in the District of Columbia, a city known for its skepticism toward government prosecutors, may wonder how much the public good was compromised. Says a Washington lawyer who has gone up against Smaltz: "Espy may have been foolish, stupid, negligent, even reckless. But to indict him for being good-time Charlie and not be able to show a quid pro quo" will hurt Smaltz's case. Smaltz did persuade a court to impose a $1.5 million fine on Sun-Diamond Growers for providing Espy with illegal gratuities. But his fraud case against Espy's brother was thrown out of court in March, and a federal judge in Washington ordered a new trial for another defendant after finding that Smaltz's office had failed to disclose evidence favorable to him. Attorney Stan Brand, a veteran of public-corruption cases, poses the questions Smaltz has to answer before a jury: "Where's the sizzle? What did Espy do in exchange?" Smaltz has delivered on Round 1 of his quest; the outcome, however, will be in the hands of a court.

--By Viveca Novak