What Exactly Is an Unlawful Gratuity after United States v. Sun-Diamond Growers?

George Washington Law Review

Volumn 68, Issue 1, 1999, Pages 116-133

  Klein, Charles B ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0033267804     PISSN: 00168076     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (104)

1. 18 U.S.C. § 201(c)(1) (1994).
2. 119 S. Ct. 1402 (1999).
3. See, e.g., United States v. Jennings, 160 F.3d 1006, 1013 (4th Cir. 1998); United States v. Griffin, 154 F.3d 762, 763-64 (8th Cir. 1998); United States v. Agostino, 132 F.3d 1183, 1195 (7th Cir. 1997); United States v. Patel, 32 F.3d 340, 345 (8th Cir. 1994); United States v. Muldoon, 931 F.2d 282, 287 (4th Cir. 1991); United States v. Strand, 574 F.2d 993, 995 n.2 (9th Cir. 1978); United States v. Irwin, 354 F.2d 192, 196 (2d Cir. 1965); see also discussion infra Part III.D.
4. See Sun-Diamond, 138 F.3d at 966 (holding that "whatever degree of intent to influence may be necessary for a bribe, a gift looking to future acts can be an unlawful gratuity where the giver is motivated simply by the desire to increase the likelihood of one or more specific, favorable acts"). The D.C. Circuit used slightly different, and arguably stronger, language to describe the forward-looking gratuity in United States v. Schaffer, 183 F.3d 833 (D.C. Cir. 1999). The court found that "a gratuity can be given with the intent to induce a public official to propose, take, or shy away from some future official act." Id. at 842. In contrast to the reward approach, the D.C. Circuit's decisions in Sun-Diamond and Schaffer held that a gift intended to influence official conduct may be an unlawful gratuity. See also infra note 35.
5. See discussion infra Part IV.
6. See Schaffer, 183 F.3d at 842; Sun-Diamond, 138 F.3d at 966.
7. See Sun-Diamond, 119 S. Ct. at 1406.
8. 18 U.S.C. § 201(b)(1)(A) (1994). The term "official act" is defined to mean "any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may be law be brought before any public official, in such official's official capacity, or in such official's place of trust or profit." Id. § 201(a)(3).
9. Sun-Diamond, 119 S. Ct. at 1406 (citing 18 U.S.C. § 201(b)(2)).
10. 18 U.S.C. § 201(c)(1).
11. Id. § 201(b) (emphasis added).
12. Id. § 201(b)(2)(A) (emphasis added).
13. See United States v. Jennings, 160 F.3d 1006, 1013 (4th Cir. 1998) ("Under § 201 'corrupt intent' is the intent to receive a specific benefit in return for the payment.").
14. But see id. at 1014 ("To prove bribery under § 201, the government is not required to prove an expressed intention (or agreement) to engage in a quid pro quo. Such an intent may be established by circumstantial evidence." (citations omitted)).
15. See 18 U.S.C. §§ 201(b), 3571; see also United States v. Sun-Diamond Growers, 119 S. Ct. 1402, 1406 (1999).
16. See, e.g., United States v. Irwin, 354 F.2d 192, 196 (2d Cir. 1965) (holding that "awarding of gifts . . . related to an employee's official acts is an evil in itself, even though the donor does not corruptly intend to influence the employee's official acts" (construing predecessor gratuity statute)).
17. 18 U.S.C. § 201(c)(1) (emphasis added).
18. Id. § 201(c)(1)(B) (emphasis added).
19. See id. §§ 201(c), 3571; see also Sun-Diamond, 119 S. Ct. at 1406.
20. See Sun-Diamond, 119 S. Ct. at 1404.
21. On September 9, 1994, the Special Division for the Appointment of Independent Counsels appointed Donald C. Smaltz independent counsel to investigate alleged violations of the federal gratuity statute by former Secretary of Agriculture Michael Espy. See 28 U.S.C. § 593(b) (1994); see also Sun-Diamond, 119 S. Ct. at 1404.
22. See Sun-Diamond, 119 S. Ct. at 1405.
23. See id.
24. See id.
25. See id.
26. United States v. Sun-Diamond Growers, 941 F. Supp. 1262, 1266 (D.D.C. 1996) (alterations in original) (quoting United States v. Secord, 726 F. Supp. 845, 847 (D.D.C. 1989)), rev'd, 138 F.3d 961 (D.C. Cir. 1998) (reversing on Count I only), aff'd, 119 S. Ct. at 1411.
27. Id. at 1268.
28. See Sun-Diamond, 119 S. Ct. at 1410.
29. Id. at 1405. The jury acquitted Sun-Diamond of Count II, a second unlawful gratuity allegation. See United States v. Sun-Diamond Growers, 138 F.3d 961, 965 n.1 (D.C. Cir. 1998), aff'd, 119 S. Ct. at 1411.
30. Sun-Diamond, 138 F.3d at 966.
31. Id.
32. Id. at 966-68.
33. Id. at 968.
34. Id. at 966 (emphasis added) (citation omitted).
35. Id. Other courts have adopted the D.C. Circuit's interpretation of the forward-looking gratuity. See United States v. Espy, 23 F. Supp.2d 1, 4 (D.D.C. 1998); United States v. Revis, 22 F. Supp.2d 1242, 1257 (N.D. Okla. 1998); United States v. Lowery, 15 F. Supp.2d 1348, 1354 (S.D. Fla. 1998), rev'd on other grounds, 166 F.3d 1119 (11th Cir.), cert. denied, 120 S. Ct. 212 (1999); United States v. Fraguela, No. CRIM.A.96-0339, 1998 WL 560352, at *8 (E.D. La. Aug. 27, 1998), vacated on other grounds, 1998 WL 910219 (E.D. La. Oct. 7, 1998); see also United States v. Schaffer, 183 F.3d 833, 841-42 (D.C. Cir. 1999).
36. The question presented was: "Is the requirement in 18 U.S.C. § 201(c)(1)(A) that a thing of value be given 'for or because of any official act' satisfied by a showing that the giving of a thing of value was motivated by the recipient's official position?" United States v. Sun-Diamond Growers, 119 S. Ct. 402 (1998).
37. Sun-Diamond, 119 S. Ct. at 1406.
38. See id. at 1407-08.
39. See id. at 1411.
40. Id. at 1406; see also id. at 1410 (holding that "a statute in this field that can linguistically be interpreted to be either a meat axe or a scalpel should reasonably be taken to be the latter").
41. United States v. Sun-Diamond Growers, 138 F.3d 961, 966 (D.C. Cir. 1998), aff'd, 119 S. Ct. at 1411.
42. Sun-Diamond, 119 S. Ct. at 1406.
43. Id.
44. Sun-Diamond, 138 F.3d at 966.
45. See Sun-Diamond, 119 S. Ct. at 1406.
46. Id. (construing 18 U.S.C. § 201(b) (1994)).
47. Id. (construing 18 U.S.C. § 201(c)(1)).
48. Sun-Diamond, 119 S. Ct. at 1406.
49. See id. at 1407-08.
50. Id. at 1406.
51. See id.
52. Id.
53. Id. (emphasis added).
54. Id. at 1408.
55. See, e.g., United States v. Jennings, 160 F.3d 1006, 1014 (4th Cir. 1998) ("'Payment of an illegal gratuity is a lesser included offense of bribery'. . . . This is because corrupt intent is a 'different and higher' degree of criminal intent than that necessary for an illegal gratuity." (citation omitted)); United States v. Patel, 32 F.3d 340, 343 (8th Cir. 1994) (stating that "an unlawful gratuity . . . is a lesser included offense of bribery"); see also United States v. Oseby, 148 F.3d 1016, 1021 (8th Cir. 1998); United States v. Sun-Diamond Growers, 138 F.3d 961, 966 (D.C. Cir. 1998), aff'd, 119 S. Ct. at 1411; United States v. Sawyer, 85 F.3d 713, 729 (1st Cir. 1996) (construing virtually identical state gratuity statute); United States v. Lasanta, 978 F.2d 1300, 1309 (2d Cir. 1992); United States v. Kenny, 645 F.2d 1323, 1327 n.1 (9th Cir. 1981); United States v. Evans, 572 F.2d 455, 464 (5th Cir. 1978).
56. See Sun-Diamond, 119 S. Ct. at 1406.
57. See FED. R. CRIM. P. 31(c) ("The defendant may be found guilty of an offense necessarily included in the offense charged."); see also Schmuck v. United States, 489 U.S. 705, 715 (1989) ("[O]ne offense is not 'necessarily included' in another unless the elements of the lesser offense are a subset of the elements of the charged offense. Where the lesser offense requires an element not required for the greater offense, no instruction is to be given under Rule 31(c).").
58. 18 U.S.C. § 201(c)(1)(A) (1994).
59. Id. (emphasis added).
60. At oral argument, at least one Supreme Court Justice applied a similar analysis: Well, suppose . . . the official has announced that he will perform an act, and then -but he hasn't performed it yet - he then gets the gratuity or the reward [from the donor]. . . . I think that would be covered by the [gratuity] statute. And that also explains the "to be performed" language. Oral Argument Proceedings at 22, United States v. Sun-Diamond Growers, 119 S. Ct. 1402 (1999) (No. 98-131).
61. United States v. Gonzales, 520 U.S. 1, 5 (1997) (quoting Russello v. United States, 464 U.S. 16, 23 (1983) (citation omitted)); see also INS v. Cardoza-Fonseca, 480 U.S. 421, 432 (1987); United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972).
62. See 18 U.S.C. § 201(b)(1)(A), (c)(1)(A).
63. Id. § 1954 (emphasis added); see also infra note 76 and accompanying text (construing 18 U.S.C. § 666).
64. United States v. Lopreato, 83 F.3d 571, 575 (2d Cir. 1996) (quoting United States v. Roberto, 801 F. Supp. 946, 953 (D. Conn. 1992) (construing 18 U.S.C. § 1954)).
65. A comparison of the respective penalties of section 201 and section 1954 further reveals that the two statutes do not contain an identical requisite intent. Because section 1954 expressly covers gifts made to influence certain (private sector) acts, its maximum penalty of three years imprisonment is naturally greater than the two year maximum imprisonment term under section 201(c)(1)(A). If the scope of the gratuity statute implicitly proscribes what section 1954 explicitly proscribes - i.e., an intent to influence - one would expect the gratuity statute's penalty to be greater than that imposed under section 1954 because, unlike section 1954, section 201(c)(1) pertains to public officials.
66. See, e.g., Oklahoma v. New Mexico, 501 U.S. 221, 235 n.5 (1991) ("[W]e repeatedly have looked to legislative history and other extrinsic material when required to interpret a statute which is ambiguous.").
67. STAFF OF SUBCOMM. NO. 5 OF THE HOUSE COMM. ON THE JUDICIARY, 85TH CONG., FEDERAL CONFLICT OF INTEREST LEGISLATION 72 (Comm. Print 1958) (emphasis added).
68. Id.
69. Id. (emphasis added); see also, e.g., H.R. REP. NO. 748, at 19 (1961) ("The conduct which is forbidden has the appearance of evil and the capacity of serving as a cover for evil.").
70. STAFF OF SUBCOMM. NO. 5 OF THE HOUSE COMM. ON THE JUDICIARY, 85TH CONG., FEDERAL CONFLICT OF INTEREST LEGISLATION 72 (emphasis added). This statutory interpretation is sprinkled throughout the gratuity statute's legislative history. See Federal Conflict of Interest Legislation: Hearings on H.R. 1900, H.R. 2156, H.R. 2157, H.R. 7556, and H.R. 10575 Before the Antitrust Subcomm. (Subcomm. No. 5) of the House Comm. of the Judiciary, 86th Cong. 177 (1960) [hereinafter Hearings] (statement of Hon. Abe McGregor Goff, Member, Interstate Commerce Comm'n) ("Payment and receipt of anything of value 'for' or 'because of' any official act would also be outlawed as bribery, notwithstanding the absence of any intent on the part of the giver or the taker to influence or to be influenced by such a 'reward' or expression of appreciation." (emphasis added)); id. at 191 (letter dated Feb. 23, 1960 from John H. Winchell to Hon. Emanuel Celler) (same proposition); id. at 241 (statement of Ross I. Newmann, Assoc. Gen. Counsel, Rules & Legislation, of the Civil Aeronautics Bd.) ("Section 201 of the bill prohibits all payments and receipts 'for or because of an official act.' This means that the payment or receipt of anything of value would be outlawed irrespective of any intent to influence or induce, or to be influenced thereby." (emphasis added)); STAFF OF SUBCOMM. NO. 5 OF THE HOUSE COMM. ON THE JUDICIARY, 85TH CONG., FEDERAL CONFLICT OF INTEREST LEGISLATION 72 (referring to criminalizing of gifts given "as a reward for an official act").
71. Hearings, supra note 70, at 6 (construing proposed 18 U.S.C. § 201(b)(1)).
72. Id. at 87-88 (statement of J.H. Macomber, Jr.).
73. Id. at 88.
74. Id. at 87.
75. 160 F.3d 1006 (4th Cir. 1998).
76. 18 U.S.C. § 666 (1994). This statute provides in pertinent part: Whoever . . . . . . . . (2) corruptly gives, offers, or agrees to give anything of value to any person, with intent to influence or reward an agent of an organization or of a State, local or Indian tribal government, or any agency thereof, in connection with any business, transaction, or series of transactions of any such organization, government, or agency involving anything of value of $5000 or more; shall be fined under this title, imprisoned not more than 10 years, or both. Id. (emphasis added).
77. Jennings, 160 F.3d at 1013 (emphasis added) (citations omitted).
78. Id. at 1014 (emphasis added).
79. 132 F.2d 1183 (7th Cir. 1997).
80. Id. at 1195 (emphasis added) (citing United States v. Mariano, 983 F.2d 1150, 1159 (1st Cir. 1993)).
81. 32 F.3d 340 (8th Cir. 1994).
82. Id. at 345.
83. 574 F.2d 993 (9th Cir. 1978).
84. Id. at 995 n.2; see also United States v. Griffin, 154 F.3d 762, 763-64 (8th Cir. 1998) (distinguishing an unlawful gratuity - where a public official is "paid after the fact for something he had already done, and would have done anyway" - from bribery); United States v. Muldoon, 931 F.2d 282, 287 (4th Cir. 1991) (holding that the government must prove that "the payor gave the gratuity because of the act," but the proof need not show that "the payor intended to exact action by the recipient"); United States v. Irwin, 354 F.2d 192, 196 (2d Cir. 1965) (concluding that the gratuity statute prohibits "an individual, dealing with a Government employee in the course of his official duties, from giving the employee additional compensation or a tip or gratuity for or because of official act already done or about to be done").
85. See, e.g., United States v. Jennings, 160 F.3d 1006, 1015 n.3 (4th Cir. 1998) (equating "illegal gratuities" with "no-strings-attached gifts").
86. United States v. Sun-Diamond Growers, 138 F.3d 961, 966 (D.C. Cir. 1998), aff'd, 119 S. Ct. 1402 (1999).
87. See supra text accompanying note 55.
88. United States v. Sun-Diamond Growers, 119 S. Ct. 1402, 1406 (1999).
89. 183 F.3d 833 (D.C. Cir. 1999). Schaffer is another gratuity case arising under Independent Counsel Smaltz's investigation of former Secretary of Agriculture Michael Espy. Id. at 836.
90. Id. at 841-42 (citations omitted).
91. Id. at 842 (citations omitted).
92. Id. at 841.
93. Id. at 841-42.
94. Id. (emphasis added).
95. See id.
96. Id. at 843.
97. Id. (emphasis added).
98. 18 U.S.C. § 201(b)(1)(A) (1994).
99. See United States v. Sun-Diamond Growers, 119 S. Ct. 1402, 1406 (1999).
100. See discussion supra Part III.C.
101. See, e.g., United States v. Jennings, 160 F.3d 1006, 1013 (4th Cir. 1998) (finding that a "'corrupt intent' is the intent to receive a specific benefit in return for the payment").
102. See Sun-Diamond, 119 S. Ct. at 1406-07.
103. Id. at 1406.
104. Id.