Balmar Legal Publishing Services, Washington, DC (202) 682-9800

Bifulco v. United States, 447 U.S. 381 (1980) 12

Buckley v. Valeo, 424 U.S. 1 (1976) 7

Crandon v. United States, 494 U.S. 152 (1990) 14-15

Dixson v. United States, 465 U.S. 482 (1984) 4

Lebron v. Nat=l R.R. Passenger Corp., 513

U.S. 374 (1995) 15

Moskal v. United States, 498 U.S. 103 (1990) 11-12

Perrin v. United States, 444 U.S. 37 (1979) 13-14

Russello v. United States, 464 U.S. 16 (1983) 3

United States v. Birdsall, 233 U.S. 223 (1914) 4

United States v. Brewster, 506 F.2d 62

(D.C. Cir. 1974) 8

United States v. Bustamante, 45 F.3d 933

(5th Cir. 1995) 13

United States v. Evans, 572 F.2d 455

(5th Cir. 1978) 13

United States v. Gorman, 807 F.2d 1299

(6th Cir. 1986) 13

United States v. Hansen, 772 F.2d 940

(D.C. Cir. 1985) 10

United States v. Irwin, 354 F.2d 192

(2d Cir. 1965) 13

United States v. McDade, 827 F.Supp.

1153 (E.D. Pa. 1993) 10

United States v. Standefer, 610 F.2d 1076

(3d Cir. 1979) (en banc), aff=d 447,

U.S. 10 (1980) 14

In its opening brief, the Government demonstrated that 18 U.S.C. ' 201(c)(1)(A)=s requirement that a thing of value be given Afor or because of any official act@ can be satisfied by a showing that the giving was motivated by the recipient=s official position, where Aofficial position@ is understood to mean being in a position to take official action affecting the donor. To hold otherwise would write forward-looking gratuities out of the statute and effectively erase the line between bribes and gratuities. Rather than directly addressing the Government=s position, respondent and the amici supporting it argue the simplistic position that Aofficial position@ and Aofficial acts@ are not the same thing.

Instead of answering the question the Court posed, respondent and its supporters ask the Court to rewrite the statute. In place of gifts given Afor or because of any official act,@ they want the statute limited to prohibiting gifts given Ato influence a specific official act.@ Such a restriction on the statute would not only defy its plain language but also undermine the enforcement scheme that Congress crafted.

A. Neither The Plain Language Of The Gratuities Statute Nor The Existence Of Broad Administrative Gift Regulations Supports Respondent=s Position

1. A glaring irony pervades the briefs of respondent, the American League of Lobbyists (ALL), and the National Association of Criminal Defense Lawyers (NACDL). Although all three argue strongly for a Aplain meaning@ interpretation of 18 U.S.C. ' 201(c)(1)(A), they urge this Court to write into the statute restrictions that Congress did not include.

Congress forbade the giving of gratuities Afor or because of any official act,@ and then defined Aofficial act@ in the broadest possible terms. Respondent, ALL, and NACDL, however, ask this Court to limit the statute=s reach to gifts given Afor or because of a specific official act.@

Thus, respondent baldly asserts that Athe unlawful gratuity is a reward for either an act >performed= or a gift to make some specific future conduct more likely.@ Respondent=s Brief at p. 23 (emphasis added). NACDL likewise rewrites the statute to conclude that Asection 201(c)(1)(A) criminalizes only gifts motivated by a specifically identified official act.@ NACDL Brief at p. 18 (emphasis added). ALL goes even further, suggesting that A[g]ratuities not motivated by a >specific official action performed or to be performed= B ones that are not inevitably nefarious B do not merit criminal sanctions and may even be beneficial.@ ALL Brief at p. 4 (emphasis added).

Respondent and its supporters endorse a Aspecific act@ requirement because it helps to blur the distinction between gratuities and bribes, a line already seriously eroded by the D.C. Circuit=s decision. In reality, respondent, ALL, and NACDL are exploiting the inconsistencies pervading the decision below. The court of appeals rejected the argument that Athe jury should have been required to find that the gratuities were conferred with specific knowledge of a definite official action for which compensation was intended,@ because Aleniency in a multitude of specific acts was enough.@ App. 13 (internal quotation marks omitted). However, it simultaneously found the statute to forbid only gratuities that Areward some past concrete official act or acts,@ or, looking to the future, Awhere the giver is motivated simply by the desire to increase the likelihood of one or more specific, favorable acts.@ App. 7-8 (emphasis added).

Respondent and its supporters go even further in attempting to blur the distinction between gratuities and bribes. Section 201 differentiates between the two by prohibiting as a gratuity anything of value given to a public official Afor or because of any official act,@ and prohibiting as a bribe anything of value given to a public official Awith intent to influence any official act.@ Where Congress uses particular language in one section of a statute but not another, the usual presumption is that it acted intentionally and purposely. Russello v. United States, 464 U.S. 16, 22-23 (1983). Nevertheless, respondent and the amici would have this Court erase this distinction.

Thus, respondent insists that Athe plain statutory language [for the gratuity offense] prohibits only gifts given with the intent to reward or to influence some specific act or acts,@ and that the gratuity statute proscribes gifts Ato increase the likelihood of one or more specific, favorable acts.@ Respondent=s Brief at pp. 37, 36 (emphasis added). Similarly, ALL asserts that Ain order to have committed a crime [under section 201(c)], the defendant must have acted with the specific intent to influence or reward some >official act.=@ ALL Brief at pp. 7-8 (emphasis added).

However, in outlawing gratuities to public officials, Congress forbade private individuals from giving gifts motivated by official action, regardless of the specificity with which those acts could be identified, and regardless of whether an intent to influence or any other corrupt intent could be shown. Instead of using the wording urged by respondent, Congress wrote exceedingly broad language that denotes a non-causal connection between the gift and actual or potential matters coming before the official B Afor or because of@ anything Awhich may at any time be pending, or which may by law be brought before any public official . . . @  18 U.S.C. ' ' 201(c)(1)(A), 201(a)(3); cf. Dixson v. United States, 465 U.S. 482, 491-92 (1984) (Congress drafted '201 with Abroad jurisdictional language@ having Awide application@). The latter phrase is the precise language to which this Court gave an expansive interpretation in United States v. Birdsall, 233 U.S. 223 (1914), which neither respondent, ALL, nor NACDL even mention. See Brief of United States at pp. 20-21.

The facts of the present case well illustrate how respondent=s recasting would undermine the statute Congress wrote. Sun-Diamond was a large agricultural cooperative, App. 1-2, and the Department of Agriculture=s actions profoundly affected its business in a variety of matters. See, e.g., Gov=t.Exh. 480, Joint Appendix filed in Court of Appeals, (AC.A.J.A.@) Tab 39 and Tab 3, pp. 380-81. From the outset of Secretary of Agriculture Espy=s tenure, it was apparent that official actions he would take in the performance of official duties would affect Sun-Diamond. The indictment alleged and the Government proved, inter alia, two such actions B regulatory definitions under the market promotion program, and regulatory input concerning methyl bromide B which involved millions of dollars of potential benefits to Sun-Diamond. Id.; Gov=t.Exh. 292, C.A.J.A. Tab 34 and Tab 3, p. 168; App. 3-4. But under the terms of the statute Congress wrote, it does not matter whether the gratuities were given for or because of these particular official acts, or instead for or because of the myriad official acts affecting Sun-Diamond that the Secretary would inevitably take during his tenure, many of which could not be identified with any specificity at the time the gifts were given. If Sun-Diamond gave gifts to Secretary Espy because he was in a position to help it through his official acts, then it gave gifts Afor or because of any official act,@ regardless of whether it gave gifts Awith intent to influence or reward a specific official act.@

2. The foregoing explains why the Government answered the Question Presented, as this Court phrased it, with a qualified AYes.@ Where, as here, the donor gives gifts because the recipient is in a position to perform official acts to its benefit, then the gifts were given Afor or because of any official act.@ Indeed, the statutory definition of Aofficial act@ includes anything Awhich may by law be brought before any public official, in such official=s official capacity, or in such official=s place of trust or profit.@ 18 U.S.C. ' 201(a)(3). If, on the other hand, the donor gives gifts merely to celebrate the recipient=s status, or to honor the recipient, or purely out of friendship, then the gift is not Afor or because of any official act,@ and not within the prohibition of the statute.

Respondent, ALL, and NACDL, however, ignore this distinction, pretending that the Government does not differentiate between Aofficial position@ and Aofficial acts.@ Through this device, they try to reduce the Government=s position to a quibble over semantics, characterizing it as an assertion that AX = Y.@ Respondent=s Brief at p. 12. Respondent argues further that one cannot substitute the phrase Aofficial position@ for Aofficial act@ in the bribery statute. Respondent=s Brief at p. 15. But, of course, the Government does not try to equate Aposition@ with Aact,@ or to substitute one word for the other. Rather, it has responded to the Court=s question with the answer that in some circumstances the official act required by the statute can be shown by reference to the recipient=s official position, and in some circumstances B because of the giver=s lawful motives B it cannot.

Respondent and its supporters never address the question presented. They argue the tautology that Aofficial position@ is not the same thing as Aofficial acts,@ but they do not state whether, and under what circumstances, the requirement that the gratuity be given Afor or because of any official act@ can be satisfied by a showing that the giving was motivated by the recipient=s position.

If a conviction under section 201(c)(1)(A) cannot in the future be maintained where a private person gives a public official gifts for or because of general, but not specific, official acts, then the statute would be a dead letter in the control of corruption. Absent an explicit quid pro quo, which would turn a gratuity into a bribe, every defendant will seek refuge in a claim that gifts were given for the purpose of building Ageneralized sympathy.@   The fact that such Ageneralized sympathy@ is of value to the donor only because the official is in a position to take acts in the future to the donor=s benefit B i.e., that matters of interest to the donor Amay by law be brought before any public official, in such official=s official capacity,@ 18 U.S.C. ' 201(a)(3) B is of no moment under the decision below, or in the result urged by respondent and its supporters.

3. Ultimately, respondent, ALL, and NACDL fail to give credence to the breadth of the statutory definition of Aofficial act.@ The most blatant example of this strategy is respondent=s suggestion that gifts from a lobbyist to a public official may be motivated not by official action but by the lobbyist=s effort to gather intelligence. Respondent=s Brief at p. 18. What this assertion ignores is that, to the extent a lobbyist is using gratuities to induce the recipient to meet with him or dispense helpful information, he is buying Aofficial acts@ within the broad statutory definition. Lobbyists, like anyone else, have a right to seek information from the government, but on the face of the statute, Congress was no more tolerant of private individuals giving gifts in recognition of preferential access to information than it was of the giving of gratuities for or because of any other form of official action. The statute does not tolerate the use of private wealth to pay for public acts.

4. A practice common to respondent, ALL, and NACDL is to illustrate the supposed need to rewrite the statute through extreme hypotheticals. Respondent=s Brief at pp. 20, 41-42; ALL Brief at pp. 10-11, 13; NACDL Brief at p. 22. The general pattern is to posit a trivial gift (brownies or a hand-knit sweater) from an apparently naive donor (a senior citizen or a high school student), and then to use the apparent unfairness of prosecuting the Aoffense@ as a springboard for arguing for the insertion of a specificity requirement into the statute. A variation is to conjure up an old friend continuing the practice of hosting a government official. Of course, respondent and its supporters resort so frequently to extreme hypotheticals because they cannot find a reported case in which Aordinary citizens@ actually ran afoul of the statute, notwithstanding the broad interpretation it has received for over thirty years.

The hypotheticals do not advance respondent=s position because the apparent unfairness of prosecution upon which they are premised springs from the peculiar factual circumstances assumed, rather than from the reason for the gift, which is generally not identified. Under the Government=s view of the law, a senior citizen giving a small gift to a public official because he is in a position to take action in her favor would violate the law; under respondent, ALL, and NACDL=s view of the law, a senior citizen giving a small gift to an elected official to influence in any way a stand he might take on a specific issue (like Social Security) would violate the law. Neither would be a sensible violation to prosecute, because it is de minimis, and prosecutorial discretion would ordinarily dictate that the case not be pursued. However, the critical point is that the potential for the prosecution of picayune gratuities flows from the fact that the statute has no stated minimum, and this potential will remain even if this Court accepts respondent=s invitation to write new limitations into the statute.

This case, of course, is not about sweaters or brownies donated by starry-eyed constituents. It is about a major agricultural cooperative, that stood to benefit from millions of dollars in discretionary federal spending, giving nearly $6000 in gifts to its chief governmental regulator, the Secretary of Agriculture. And, in the view of the briefs supporting respondent, it would have made no difference if that cooperative had given the Secretary a million dollars in cash. Under respondent=s interpretation of section 201(c)(1)(A), so long as the donor can claim that it gave the gift for generalized goodwill (i.e., the hope of yet unidentified favorable acts in the future), rather than for a specifically identifiable act, the donor can shower gifts on the official without limit, and the official can pocket them without any consequences (other than civil administrative actions).

The fact that almost none of these hypotheticals specify why the gift was given renders them useless to analyze the problem at hand. In almost every one of the few instances in which the reason for the gift is specified, the result would be the same regardless of whether the courts applied the standard proposed by the Government (satisfying the official act requirement with a showing that the giving was motivated by the official=s being in a position to take action affecting the donor) or respondent=s position (limiting the statute to situations where the donor attempts to influence a specific official act.)

The one exception, appearing at page 42 of the respondent=s Brief, is a recasting of the hypothetical appearing at pages 20 to 21 of the Department of Justice=s Brief. In respondent=s version, an otherwise law-abiding citizen gives a United States Attorney gifts in hopes of obtaining unspecific beneficial assistance in the future. In other words, the gift is given because the official is in a position to take official action that affects the donor, but is not given to influence a specific act. Thus, the gifts are unlawful gratuities under the Government=s view of the statute, but lawful under respondent=s. The problem with respondent=s interpretation is well illustrated by the Department of Justice=s original version of this hypothetical, which posited the donor as an organized crime figure but otherwise assumed the same facts. Since liability under the statute must turn on the reason the gift was given, rather than the overall probity of the giver, respondent=s version of the law necessarily endorses organized crime figures buying generalized favor from law enforcement officials.

5. The administrative regulations (5 C.F.R. ' 2635.101 et seq.) to which respondent, ALL, and NACDL repeatedly compare the statute are not a substitute for section 201(c)(1)(A). Congress=s creation of an administrative regimen to govern a class of offenses does not impliedly repeal a pre-existing criminal statute covering the same type of activity. United States v. Hansen, 772 F.2d 940, 944-48 (D.C. Cir. 1985) (Scalia, J.).

The briefs in support of respondent make much of the fact that the regulations contain numerous safe harbors (such as exclusions for gifts with value below $20, and for refreshments at speaking engagements) that the statute does not. But the briefs fail to note that these safe harbors are, in general, incorporated into the enforcement of section 201. Section 201(c)(1) forbids gratuities given Aotherwise than as provided by law for the proper discharge of official duty . . . .@ The Ethics Reform Act of 1989, the wellspring of the administrative regulations on which respondent and its supporters rely, explicitly permits the receipt of a gift that is allowed under the administrative regulations, so long as the gift is not accepted for being influenced in the performance of any official act. 5 U.S.C. ' 7353(b). The safe harbors in the administrative regulations thereby create corresponding safe harbors in section 201(c). See United States v. McDade, 827 F.Supp. 1153, 1173 (E.D. Pa. 1993); 5 C.F.R. ' 2635.202 (1992) (AUnless accepted [in return for being influenced in the performance of official acts], a gift accepted under the standards set forth in this subpart shall not constitute an illegal gratuity otherwise prohibited by 18 U.S.C. ' 201(c)(1)(B).@); Bipartisan Task Force on Ethics, 101st Cong., Report on H.R. 3660 (AEthics Report@), at 12 (Comm. Print 1989) (AThis statutory authority would bar any possible prosecution under the illegal gratuities statute for acceptance of a gift of minimal value that may bear some relation to official action.@); 135 Cong. Rec. H8758 (1989) (statements of Rep. McCollum and Rep. Fazio).

In any event, to whatever extent the regulations might recognize safe harbors that the statute does not, rewriting the statute=s intent requirement would not alter the result. A small gift given with the requisite intent will trigger the statute, despite its seeming triviality, regardless of whether the requirement is the statutory Afor or because of any official act@ or respondent=s proposed rewrite of Awith intent to influence a specific official act.@ Even if Congress did give the statute a broader sweep than the regulations, this is a concern to be addressed by Congress, not this Court.

The administrative regulations and 5 U.S.C. '7353 are important adjuncts to the gratuities statute, but they are not a substitute for it. For one thing, they govern only the recipient official, not the donor; they would not have touched respondent. Additionally, they impose broad strict liability for the acceptance of gifts from certain persons, irrespective of the motivation behind those gifts. Most importantly, the regulations do not, and cannot, carry out what Congress saw as an important policy of attaching criminal, and not just civil, consequences to activities that can compromise governmental processes.

6. In the end, respondent is left seeking refuge in the rule of lenity. Respondent=s Brief at pp. 44-45. But this rule is only applicable if the Court is left with an ambiguous statute after exhausting all sources of interpretive aid. Moskal v. United States, 498 U.S. 103, 108 (1990). It does not apply Amerely because it [is] possible to articulate a construction [of the statute] more narrow than that urged by the government.@ Id. To hold otherwise would allow every defendant challenging a statute=s interpretation to invoke the rule. Because a reasonable doubt as to the statute=s intended scope does not endure a review of A>the language and structure, legislative history, and motivating policies= of the statute,@ the rule of lenity is unavailable to respondent. Id. (quoting Bifulco v. United States, 447 U.S. 381, 387 (1980)).

While purporting to agree that legislative history cannot override the statute=s plain meaning, respondent and its supporters rely heavily on snippets of legislative activity on the subject of bribery and corruption reform in the late 1950s and early 1960s. Predictably, they approach the legislative history of section 201(c)(1)(A) by emphasizing what Congress did not do, rather than what it did. They lean heavily on the suggestion of a more general provision floated by Senator Keating, while glossing over the fact that Senator Keating never introduced his proposed amendment, thus foreclosing any possibility of discerning anything about Congress=s intent from its failure to enact the proposal. Likewise, respondent points to a bill offered to the 85th Congress in 1958 as some type of guide to the legislative intent of the 87th Congress, which passed the statute in 1962. Respondent=s Brief at p. 27.

The briefs of respondent, ALL, and NACDL also gloss over the fact that the Keating proposal was much broader than the interpretation of section 201(c)(1)(A) urged here by the United States, in that it forbade soliciting or receiving gifts from someone who the recipient Ahas reason to believe@ is seeking favor. Respondent acknowledges that the proposal Awould hold public officials strictly liable for soliciting or accepting certain gifts . . . .@ Respondent=s Brief at p. 28. Section 201(c)(1)(A), in contrast, is not under anyone=s interpretation a strict liability statute B it requires that the thing of value be given Afor or because of any official act,@ a requirement that can be met, in appropriate circumstances, by a showing that the thing of value was motivated by the recipient=s official position.

C. The Broad Language Of The Gratuities Statute Protects The Public From A Division Of Loyalties By Its Officials

The courts of appeals have repeatedly recognized that, when a private entity becomes a second source of income for a public official in a position to perform official acts in which it has an interest, the resulting division of loyalties is precisely what Congress addressed through section 201(c)(1)(A). United States v. Bustamante, 45 F.3d 933, 940 (5th Cir. 1995); United States v. Gorman, 807 F.2d 1299, 1304 (6th Cir. 1986); United States v. Evans, 572 F.2d 455, 480 (5th Cir. 1978); United States v. Irwin, 354 F.2d 192, 196 (2d Cir. 1965). In particular, the Third Circuit recognized, in a decision that this Court affirmed (albeit without discussion on this point), that A[a]ll that was required in order to convict [the donor] was that the jury conclude that the gifts were given by him for or because of [the recipient=s] official position, and not solely for friendship or social purposes;@ the most telling evidence of this fact, again according to the Third Circuit, was the donor=s admission that he gave the gifts Ato establish rapport@ with the recipient official. United States v. Standefer, 610 F.2d 1076, 1080-81 (3d Cir. 1979) (en banc), aff=d 447 U.S. 10 (1980).

Respondent dismisses the unlawful compensation rationale behind section 201(c)(1)(A) by referencing 18 U.S.C. ' 203, another statute aimed at preventing federal officers and employees from taking outside compensation. Respondent=s Brief at pp. 23-24, n.14. But this argument is a non sequitur; section 203 is not a substitute for section 201(c)(1)(A), and, if anything, strengthens the notion that a congressional purpose to deter unlawful compensation at least in part motivated this entire body of conflict of interest law.

Indeed, in interpreting another unlawful compensation statute, 18 U.S.C. ' 209 (characterized along with section 201 as Aone of almost two dozen statutory provisions addressing bribery, graft, and conflicts of interest that were revised and compiled at Chapter 11 of the Criminal Code in 1962,@ Crandon v. United States, 494 U.S. 152, 158-159 (1990)), this Court explained the legitimate breadth of this type of legislation:

Congress appropriately enacts prophylactic rules that are intended to prevent even the appearance of wrongdoing and that may apply to conduct that has caused no actual injury to the United States. * * * * * Legislation designed to prohibit and to avoid potential conflicts of interest in the performance of governmental service is supported by the legitimate interest in maintaining the public=s confidence in the integrity of the federal service.

The crucial point, ignored by respondent and its supporters, is that a hair-splitting distinction between gratuities given for or because of an official act and those given for or because an official is in a position to perform an official act destroys Congress=s carefully-crafted delineation between bribes and gratuities. As Judge Wald pointed out, this proposed distinction Awould not pass the snicker test with laymen,@ App. 34, a conclusion neither respondent nor its supporters even attempt to dispute.

II. Even Assuming Error In The Jury Instructions, Any Such Error Was Harmless

With regard to the jury instructions, neither respondent nor its supporters come to grips with the import of the instructions as a whole. Moreover, respondent confuses instructions stating necessary elements of the Government=s proof with sufficient elements. See Respondent=s Brief at p. 19.

Respondent asserts that Athe only defense allowed to be presented to the jury was that Sun-Diamond acted out of pure friendship.@ Respondent=s Brief at p. 48 (emphasis in original). Significantly, it gives no record citations for this bald assertion. In fact, respondent asked to present, and was allowed to present, numerous defenses: Afriendship or social purpose@ (App. 86, 89-90); no need to cultivate or develop a relationship (App. 89); gift was honorarium, not gratuity (id.); and lack of knowledge of gift (id.). Respondent was convicted, not because it could not present defenses to the jury, but because the jury did not accept its defenses.

For the foregoing reasons, the United States respectfully requests that the Court reverse the judgment of the D.C. Circuit, and reinstate respondent=s conviction for violating the unlawful gratuity statute, 18 U.S.C. ' 201(c)(1)(A).