INTRODUCTION

                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.” (emphasis added).

                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 Government’s 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, (Defendant’s 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 defendant’s motion to dismiss the Indictment.

                II.

RECEIPT AND ACCEPTANCE OF GRATUITIES IS A

“BRIBERY” OFFENSE UNDER THE TRAVEL ACT

                                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.

A.            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 Court’s 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^[1] 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 Court’s 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), aff’d, 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.^[2]   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 (Defendant’s 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 “bribery.”  Id.

                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^[3] “does not include a requirement of corrupt intent or ‘quid pro quo,’” the state statute could not fall within RICO’s 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 Circuit’s 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 court’s 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 Circuit’s 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 Circuit’s 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.”  (Defendant’s 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 Espy’s analysis of Biaggi is flawed.

                First, in upholding former New York Congressman Mario Biaggi’s 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 donor’s 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 donor’s 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 Biaggi’s efforts on behalf of the donor’s 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.”  (Defendant’s 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 Court’s 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 defendant’s 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)^[4] 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 Court’s 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 Court’s 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)),^[5] 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.

B.             THE MEAT INSPECTION ACT IS A PREDICATE OFFENSE UNDER THE TRAVEL ACT

                Defendant’s 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 defendant’s 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. 12(b)(2).

                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 defendant’s 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 activity.”

                III.

CONCLUSION

                Defendant Espy’s 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.  (Defendant’s 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, defendant’s motion to dismiss Counts 29-33 of the Indictment must be denied.

Dated: November 20, 1997      Respectfully submitted,

                                                                                OFFICE OF INDEPENDENT COUNSEL

                                                                                In Re Alphonso Michael (Mike) Espy