IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
No. 97-0335 (RMU)
UNITED STATES OPPOSITION AND
MEMORANDUM TO DEFENDANTS
DISMISS COUNTS 29-33 OF
THE INDICTMENT FOR FAILURE TO STATE
AN OFFENSE UNDER THE TRAVEL ACT
RECEIPT AND ACCEPTANCE OF GRATUITIES IS
A BRIBERY OFFENSE UNDER THE TRAVEL ACT 3
SECTION 201(C) IS A PREDICATE OFFENSE UNDER THE TRAVEL ACT 3
THE MEAT INSPECTION ACT IS A PREDICATE OFFENSE UNDER THE TRAVEL ACT
TABLE OF AUTHORITIES
United States, 444
U.S. 37, 100 S.Ct. 311 (1979) passim
States v. Biaggi, 674
F. Supp. 86 (E.D.N.Y. 1987),
affd, 853 F.2d 89 (2d Cir. 1988),
cert. denied, 489 U.S. 1052, (1989) passim
States v. Evans, 572 F.2d 455 (5th Cir.), cert. denied,
439 U.S. 870 (1978)
States v. Dansker,
537 F.2d 40 (3d Cir. 1976)
States v. Forsythe,
560 F.2d 1127 (3d Cir. 1977)
States v. Garner, 837
F.2d 1404 (7th Cir. 1987),
cert. denied, 486 U.S. 1035 (1988) 6,7,8
States v. Kotvas, 941
F.2d 1141 (11th Cir. 1991),
cert. denied, 506 U.S. 1055 (1993)
States v. Mullens,
583 F.2d 134 (5th Cir. 1978)
*United States v. Nardello, 393
U.S. 286, 89 S.Ct. 534 (1969)
States v. Perkins,
596 F. Supp. 528 (E.D. Pa.),
affd, 749 F.2d 29 (3d Cir. 1984),
cert. denied, 471 U.S. 1015 (1985)
States v. Previte,
648 F.2d 73 (1st Cir. 1981)
States v. Sawyer, 85
F.3d 713 (1st Cir. 1996)
States v. Seuss, 474 F.2d 385 (lst Cir. 1973)
*United States v. Sun-Diamond Growers, 941 F. Supp. 1262
Fed. R. Crim. P. 12(b)(2) 2,15
18 U.S.C. § 201
18 U.S.C. § 201(b) 3,9,16
18 U.S.C. § 201(c) passim
18 U.S.C. § 1952
18 U.S.C. §
21 U.S.C. § 622
Ann. § 838.016(1) 8
Stat. ch. 38, ¶ 33-3(d) 6
Laws ch. 268A, § 3
18 Penn. Stat. § 4304
Defendant Michael Espy seeks an order from this Court dismissing Counts 29-33 of
the Indictment which charge him in five counts with violations of the Travel Act, Title
18, United States Code, Section 1952. Specifically,
defendant Espy contends that the Government has failed as a matter of law to allege a
predicate bribery offense in satisfaction of the unlawful activity
element of the Travel Act charges. For the reasons that follow, bribery
under the Travel Act includes the violations of both the federal gratuities statute and
the Meat Inspection Act, as alleged in the Indictment.
Section 1952 provides that it is unlawful to travel in interstate . . .
commerce . . . with intent to . . . promote, manage, establish, carry on, or facilitate
the promotion, management, establishment, or carrying on, of any unlawful activity,
and thereafter performs or attempts to perform an act. (emphasis added). Section 1952(b) requires the Government to
charge an act of unlawful activity from a list of specified predicate
offenses. Pursuant to Section 1952(b)(2),
unlawful activity means extortion, bribery, or arson in
violation of the laws of the State in which committed or of the United States.
In this case, the Indictment alleges that Secretary of Agriculture Michael Espy
traveled in interstate commerce with intent to carrying on the unlawful activity
of receiving and accepting things of value in violation of 18 U.S.C. § 201(c) and 21
U.S.C. § 622. The Indictment further alleges
not only that Secretary Espy accepted things of value from individuals and
entities that were regulated by and did business with USDA, but also -- as defendant Espy
is careful to avoid mentioning -- were seeking official action from the Secretary of
Agriculture. (Indictment ¶ 8). The
Governments position is that these alleged violations of the federal gratuities
statute and the Meat Inspection Act are encompassed within the generic designation of the
unlawful activity of bribery and may not be dismissed on a motion
to dismiss under Fed. R. Crim. P. 12(b)(2).
While defendant is correct that the Indictment does not allege a corrupt intent or
a quid pro quo, (Defendants Motion to Dismiss Counts 29-33, at 2), the law is
that any offense that proscribes conduct which is generically defined as bribery,
including the receipt and acceptance of gratuities, is bribery for purposes of
the Travel Act as well as related statutes. Thus,
as a matter of law, this Court must deny defendants motion to dismiss the
RECEIPT AND ACCEPTANCE OF GRATUITIES
BRIBERY OFFENSE UNDER THE
Defendant concedes that the offense entitled Bribery, under Title 18,
United States Code, Section 201, encompasses both bribery, which requires a corrupt intent
and proof of a quid pro quo under subsection (b), and gratuity, which requires only
proof of the acceptance or receipt of a thing of value for or because of an official
act under subsection (c). Defendant
also concedes that the Meat Inspection Act, under Title 21, United States Code, Section
622, similarly is entitled Bribery . . . and acceptance of gifts and
encompasses both an offense requiring proof of intent to influence, i.e.,
corrupt intent, and the offense charged in this case that requires no such proof of
corrupt intent. In short, both sections of
the federal criminal code are bribery statutes that include the offense of receiving and
accepting a gratuity.
SECTION 201(C) IS A PREDICATE OFFENSE UNDER THE TRAVEL ACT
The question presented in this case is whether the lesser included offense of
gratuity fits within the designation of bribery as an unlawful offense
under the Travel Act. As noted by the Supreme
Court in Perrin v. United States, 444 U.S. 37, 100 S. Ct. 311 (1979), Congress
made no attempt to define the statutory term bribery under the Travel
Act, but relied on the accepted contemporary meaning. Id. at 45.
The answer to the question presented in this case, therefore, requires some
background and an analysis of prior cases interpreting the Travel Act and similar
statutes, beginning with the Supreme Courts 1969 decision in United States v.
Nardello, 393 U.S. 286, 89 S. Ct. 534 (1969).
In a related context, the Supreme Court in Nardello addressed whether the
Travel Act encompassed a state law violation of blackmail as extortion under
Section 1952(b)(2). The defendants in Nardello
argued, similar to the claim advanced here by defendant Espy, that because the
Pennsylvania criminal code created separate offenses for extortion and blackmail, it
follows that the Travel Act does not reach the conduct charged. 393 U.S. at 293. In rejecting defendants interpretation of
the Travel Act, the Supreme Court noted that such an unnaturally narrow reading
of the statutory term extortion was inconsistent with the full scope of the
congressional purpose in enacting the Travel Act to cover generic acts of
extortion. Id. at 296, 290-96 (and
legislative history cited therein).
Thus, as the Third Circuit has recognized,
Nardello stands for the
proposition that alleging a state violation which falls within the generic category of the
predicate offense is adequate to charge a violation of the Travel Act. The test for determining whether the charged acts
fit into the generic category of the predicate offense is whether the indictment
charges a type of activity generally known or characterized in the proscribed category. .
United States v. Forsythe, 560 F.2d 1127, 1137 (3d Cir. 1977)
(emphasis added). The Forsythe Court
had to determine whether state law violations of a criminal solicitation statute were bribery
offenses under the federal RICO statute, 18 U.S.C. § 1961.
The RICO statute contains a parallel provision to the Travel Act that defines as
racketeering activity, (A) any act or threat involving . . . bribery
which is a felony under State law, and (B) any act which is indictable under Section
201 (relating to bribery). 18 U.S.C. §
1961(1)(A) & (B). Relying on the Supreme
Courts decision in Nardello, the Forsythe Court held that there were
several [state] offenses fitting within the generic category of bribery,
including bribery and solicitation of things of value.
560 F.2d at 1137-38.
In Forsythe, the Third Circuit concluded by noting that the generic
description of bribery is conduct which is intended . . . as an assault on the
integrity of a public office or an official action. Id. at 1137
n.23 (quoting United States v. Dansker, 537 F.2d 40, 48 (3d Cir. 1976) (emphasis
added)). Thus, at least in the Third Circuit,
a gratuity offense under Section 201(c) is well within the generic description
of bribery under the RICO statute, and presumably, by analogy, the Travel Act
as well. See United States v.
Perkins, 596 F. Supp. 528, 531 (E.D. Pa.) (receipt of unlawful gratuity under
§ 201(c) is within generic description of bribery under RICO statute), affd,
749 F.2d 29 (3d Cir. 1984), cert. denied, 471 U.S. 1015 (1985).
Similarly, the Seventh Circuit in United States v. Garner, 837 F.2d 1404
(7th Cir. 1987), cert. denied, 486 U.S. 1035 (1988), held that any act . . .
involving . . . bribery under the RICO statute includes a violation of the Illinois
official misconduct statute. The defendants in Garner argued -- as
defendant Espy has here -- that the
plain meaning of the word bribery only includes acts done with a corrupt
intent or when there is an agreement that the recipient of the bribe will provide a quid
pro quo. Id. at 1417; see
(Defendants Motion to Dismiss Counts 29-33, at 2-3).
In rejecting defendants claim that Congress did not intend for the receipt of
an illegal gratuity to be a predicate act of racketeering, the Garner Court relied
on Nardello and Forsythe and held that the Illinois misconduct statute --
which prohibits the receipt of illegal gratuities -- is analogous to Section 201(c)(1)(B),
which makes it unlawful for a federal public official like defendant Espy (as charged in
the Indictment herein) to receive
. . . anything of value personally for
or because of any official act performed or to be performed by such official. The Court found that because the receipt of an
illegal gratuity by a federal public official constitutes a RICO predicate act and because
it saw no reason why Congress would have defined bribery more broadly for federal
officials than for state officials, the Court held that the unlawful gratuity under state
law fell comfortably within the generic classification of bribery. 837 F.2d at 1418-19. In sum, the Garner Court concluded that a
gratuities offense -- just as a bribery offense -- represents an attack on the
integrity of public officials and therefore fits within the generic category of
An argument similar to the one advanced by defendant Espy in this case and the
defendants in Garner was advanced and rejected in the Eleventh Circuit as well. In United States v. Kotvas, 941 F.2d 1141
(11th Cir. 1991), cert. denied, 506 U.S. 1055 (1993), the Court considered
defendants contention that because the Florida unauthorized compensation statute does not include a
requirement of corrupt intent or quid pro quo, the state statute could
not fall within RICOs definition of bribery. The Government in Kotvas argued that the
generic definition of bribery includes federal gratuity offenses under 18
U.S.C. § 201(c)(1)(B) and related state statutes including the Florida gratuities
statute. Relying on the Seventh Circuits
decision in Garner, the Kotvas Court rejected a narrow definition of the
predicate act of bribery under the RICO statute in favor of a broad
construction of the term bribery to include the Florida gratuities statute
consistent with the intent of Congress. 941
F.2d at 1145-46.
With that background, it is not surprising then that the Second Circuit in United
States v. Biaggi, 853 F.2d 89 (2d Cir. 1988), cert. denied, 489 U.S. 1052,
(1989), a case directly on point to the issue presented in this case, upheld the district
courts instruction that permitted the jury to find a violation of the Travel Act
based upon a violation of the federal gratuities statute.
The indictment in Biaggi simply referred to Section 201 as the
Travel Act predicate without distinguishing between bribery and gratuity. The district court instructed the jury, over
defense objections, that it could convict under the Travel Act based upon violations of
the gratuity provisions of Section 201 even if it found defendants not guilty of bribery. 853 F.2d at 100-01.
This instruction proved to be prescient because the jury acquitted the defendants
of bribery, leaving only the defendants convictions for gratuities offenses as a
predicate for conviction under the Travel Act.
In affirming defendants convictions under the Travel Act, the Second Circuit
agreed with the district court that the policy, evolution, and legislative history
of § 201 indicate that Congress intended a violation of any portion of that section . . .
to constitute a bribery offense within the meaning of § 1952. Id. at 102; see United States v.
Biaggi, 674 F. Supp. 86, 88-90 (E.D.N.Y. 1987) (surveying legislative history of
bribery and Travel Act statutes, passed by same Congress in 1961-62, and
concluding that Congress understood bribery as a broadly defined offense
not necessarily requiring corrupt intent to influence). The district court in Biaggi relied on the
Fifth Circuits decision in United States v. Evans, 572 F.2d 455 (5th Cir.), cert.
denied, 439 U.S. 870 (1978), that the for or because of official act
gratuity offense, under what is now Section 201(c), as well as the corrupt intent
bribery offense, under what is now Section 201(b), are both encompassed by the term bribery
as used in the Travel Act. Evans, 572
F.2d at 480; Biaggi, 674 F. Supp. at 88.
Here, as in Biaggi, [t]here is no reason to infer that the
policy and purpose behind the corrupt intent to influence offense[ are]
substantially different from [those] underlying the for or because of offense[
]. All sections of the bribery statute are
aimed at preventing the evil of allowing citizens with money to buy better public service
than those without money. 853
F.2d at 101 (quoting 674 F. Supp. at 89).
Notwithstanding this weight of authority from other circuits -- which defendant
largely ignores -- Espy nevertheless relies on dicta contained in a footnote from
the First Circuits decision in United States v. Sawyer, 85 F.3d 713 (1st Cir.
1996) that Biaggi does not stand for the proposition that any
violation of the gratuity statute constitutes bribery within the meaning of the Travel
Act. (Defendants Motion to
Dismiss Counts 29-33, at 6); see Sawyer, 85 F.3d at 741 n.28 ([T]he
fact that a gratuity violation involving an intent to influence is essentially bribery, see
[Biaggi,] 853 F.2d at 101, does not mean that every possible application of a
gratuity statute fits the rubric). Defendant
Espys analysis of Biaggi is flawed.
First, in upholding former New York Congressman Mario Biaggis conviction
under the gratuities statute, the Second Circuit noted that the Government was required to
show that vacations and other things of value provided to Congressman Biaggi were for
or because of his official acts on behalf of the donors client. The record was replete with evidence that
Congressman Biaggi and his girlfriend were provided these gifts in exchange for his help
in enlisting the assistance of New York City officials on behalf of the donors
client. That the defendant was acquitted of
receiving a bribe did not change the fact that the record contained evidence from which a
jury could have found (but did not find) that the paid vacations were a quid pro quo
for Biaggis efforts on behalf of the donors client. It was thus on that basis that the Second Circuit
found sufficient evidence to satisfy the for or because of element of the
gratuity offense on which the jury found Biaggi guilty.
853 F.2d at 99-100.
Defendant now seeks to turn the holding of Biaggi on its head in claiming
that Biaggi involved bribery [under the Travel Act] only
because of the explicit quid pro quo between the gratuities Biaggi received and
the official actions he took in return. (Defendants
Motion to Dismiss Counts 29-33, at 6) (emphasis added).
As explained above, that is not the holding of Biaggi. Consistent with a long line of authority
stretching back to the Supreme Courts decision in Nardello, the holding in Biaggi,
simply stated, is that a violation of any portion of [§ 201] . . .
constitute[s] a bribery offense within the meaning of § 1952. 853 F.2d at 102 (emphasis added). Accord Perrin v. United States, 444 U.S. at
49 ([w]e are similarly persuaded [as in Nardello] that the generic definition
of bribery, rather than a narrow common-law definition, was intended by Congress).
To the extent that dicta from United States v. Sawyer may be read to
the contrary, it must be considered in context. As
the Government argues in opposition to the defendants motion to dismiss the
gratuities charges, of the two state statutes in Sawyer that served as the
predicate for an honest services violation and a charge under the Travel Act, only one
(the gratuity statute) contained
the for or because of an official act requirement found in the federal
gratuities statute. In granting a new trial
on the honest services and Travel Act convictions, the Sawyer Court
understandably was concerned that the jury find more than simply a violation of the other
state statute (the gift statute), which was a civil fine provision prohibiting a state
legislator from accepting gifts aggregating $100 or more in a calendar year from a
lobbyist. While the the First Circuit in Sawyer
was careful to note that the district court required the jury to find a criminal violation
of the state gratuity statute (and not the gift statute) before concluding that the
Government had carried its burden of establishing a violation of the Travel Act, the
circuit court nonetheless was troubled by the blurred line between the Massachusetts gift
and gratuity statutes. In that context, the
Court held that where the difference between lawful and unlawful turns primarily on
intent, . . . we think the jury needs to be told specifically that the defendant has not
violated the bribery component of the Travel Act (or committed honest services fraud) if
his intent was limited to the cultivation of business or political friendship. Sawyer, 85 F.3d at 741.
Obviously, an illegal gratuity requires proof of unlawful intent that would not be
satisfied if the giving and receiving of gifts or other things of value were motivated
solely by acts of friendship. This Court gave
such a defense instruction in United States v. Sun-Diamond Growers, 941 F. Supp.
1262 (D.D.C. 1996). But the Sawyer
Courts additional requirement that [o]nly if . . . there is an intent to cause
the recipient to alter [his] official acts may the jury find . . . the bribery predicate
of the Travel Act is contrary to settled law in all other circuit courts that have
considered the issue, including the Second Circuit in Biaggi. See Sawyer, 85 F.3d at 741.
Accordingly, while Sawyer unquestionably stands for the unremarkable
proposition that not every state law gift statute can predicate a Travel Act violation,
the case does not mean, as defendant suggests it does, that a violation of the federal
gratuity statute must be predicated upon additional proof of an explicit quid pro quo
or corrupt intent to be within the definition of bribery under the Travel Act. To hold otherwise would be tantamount to
collapsing the federal offenses of bribery and gratuity, which is contrary to this Courts
prior decision in Sun-Diamond. While
the First Circuit has left open the possibility that a federal gratuity prosecution may
require proof of a causal relation to [a] specific, identifiable act,
Sawyer, 85 F.3d at 737-38 (quoting United States v. Previte, 648 F.2d 73, 82
n.8 (1st Cir. 1981)), this Court in Sun-Diamond
has resolved the issue in favor of no such requirement.
Given that determination and any dicta in Sawyer to the contrary
notwithstanding, this Court should adopt the holding in Biaggi and its progeny. That is, as a matter of law, a gratuities
violation under Section 201(c)(1)(B) is within the generic designation of bribery
under the Travel Act.
THE MEAT INSPECTION ACT IS A PREDICATE OFFENSE UNDER THE TRAVEL ACT
Defendants remaining argument that the Travel Act also cannot be predicated
on a violation of the federal Meat Inspection Act, 21 U.S.C. § 622, similarly is without
merit. The fact that no reported Travel Act
case has been based on a violation of the Meat Inspection Act is of no more moment than
defendants related argument that the Meat Inspection Act has never been applied to
the Secretary of Agriculture. As to both
arguments, if the statutory language permits such an application, no further showing is
required of the Government on a pretrial motion to dismiss under Fed. R. Crim. P.
The gratuity provisions of Section 622 provide in relevant part that any . .
. officer or employee of the United States authorized to perform any of the duties
prescribed under the Meat Inspection Act is prohibited from receiv[ing] or
accept[ing] from any person, firm, or corporation engaged in commerce any gift, money, or
other thing of value, given with any purpose or intent whatsoever. In sum, Section 622 proscribes the acceptance of
things of value in connection with or arising out of the performance of [ ] officials duties. United States v. Seuss, 474 F.2d 385, 388
(lst. Cir. 1973); accord United States v. Mullens, 583 F.2d 134, 141 (5th Cir.
1978). While the Government does not dispute
defendants contention that a gratuity offense under the Meat Inspection Act is
not equivalent to the actual offense of bribery as proscribed under Section 201(b),
no such equivalency is required for purposes of the Travel Act. Again, the test under Nardello and Perrin
and their progeny is whether the relevant provisions of Meat Inspection Act fit within
the generic description of bribery under the Travel Act. For the reasons set forth above pertaining to the
federal gratuities statute, a violation of the gratuity provisions of the Meat Inspection
Act can be generically described as bribery and therefore may serve as a
Travel Act predicate of unlawful
Defendant Espys real problem with the Travel Act as applied to him in Counts
29-33 of the Indictment is his belief that the statute should be narrowly construed and
limited outside the context of organized crime. (Defendants
Motion to Dismiss Counts 29-33, at 2 & n.2). The
statute, however, admits of no exception for the Secretary of Agriculture or any other
public official. The Travel Act instead
encompasses both bribery and the lesser included offense of gratuity. As the district court in Biaggi aptly
noted, [a]rguably, a law which permits the stringent Travel Act penalties to be
predicated on a [gratuity] conviction . . . is overly harsh. But if that is the case, it is the responsibility
of Congress to change that law, not the courts.
Biaggi, 674 F. Supp. at 90 ([t]o suggest in the meantime that Congress
intended in drafting the Travel Act to draw a distinction between the types of crimes
described under the bribery statute not only runs contrary to the relevant legislative
history, but ignores the broad remedial purpose of the Travel Act); accord Perrin
v. United States, 444 U.S. at 50.
Because there is no requirement that the generic designation of bribery
under the Travel Act include proof of corrupt intent or a quid pro quo, defendants
motion to dismiss Counts 29-33 of the Indictment must be denied.
November 20, 1997 Respectfully submitted,
OFFICE OF INDEPENDENT COUNSEL
In Re Alphonso Michael (Mike) Espy