WCC (3/31/21)

Assignment
• For Mon., please read pp. 319-40 (Ch. 8 –
Extortion)
• Next assignments will be
– pp. 351-81 (Ch. 9 – False Statements)
• SKIP pp. 352-55 (U.S. v. Rodgers)
– pp. 383-412 (Ch. 10 – Perjury and False
Declarations)
• SKIP pp. 385-90 (Dunn v. U.S.)
• SKIP pp. 404-07 (U.S. v. Smith)
 Issues
• Ch. 7 – Bribery and Gratuities (pp. 279-317)
– U.S. v. Sun-Diamond Growers of California (pp.
289-94)
– 18 U.S.C. § 666 (pp. 297-98)
– Salinas v. U.S. (pp. 298, 300)
– Sabri v. U.S. (pp. 298-301)
– Foreign Corrupt Practices Act (pp. 305-07)
• U.S. v. Kay (pp. 307-12)
– McDonnell v. U.S. (not in casebook)
• Ch. 8 – Extortion (pp. 319-40)
– 18 U.S.C. § 1951 (Hobbs Act)
– 18 U.S.C. § 1952 (Travel Act)
– 18 U.S.C. § 872 (Extortion by Federal
Employees)
– Scheidler v. NOW (pp. 320-24)
– McCormick v. U.S. (pp. 326-31)
– Evans v. U.S. (pp. 332-39)
Is Bribery/Gratuities Automatically an Honest
Services Violation?
 Honest Services Violation Requires…

• use of mail or wires.

• 18 U.S.C. § 1346: “For the purposes of this
chapter, the term ‘scheme or artifice to
defraud’ includes a scheme or artifice to
deprive another of the intangible right of
honest services.”
U.S. v. Sun-Diamond Growers of California,
526 U.S. 398 (1999) (J. Scalia) (pp. 289-94)
 Central Legal Question
• Does conviction under the illegal gratuities
statute require any showing beyond the fact
that a gratuity was given because of the
recipient's official position?
• Or does conviction require showing that the
gratuity was given because of specific official
acts by the recipient?
 Facts
• Sun-Diamond Growers was a trade association
that engaged in marketing and lobbying
activities on behalf of its member
cooperatives, which were owned by
approximately 5,000 individual growers of
raisins, figs, walnuts, prunes, and hazelnuts.
 Case History
• Sun-Diamond was charged with giving former
Secretary of Agriculture Michael Espy
approximately $5,900 in illegal gratuities:
– tickets to the 1993 U.S. Open Tennis Tournament
(worth $2,295)
– luggage ($2,427)
– meals ($665), and
– a framed print and crystal bowl ($524).
• The indictment alluded to two matters in
which Sun-Diamond had an interest in
favorable treatment from the Secretary at the
time it bestowed the gratuities.
• The indictment did not allege a specific
connection between either of these matters –
or between any other action of the Secretary
– and the gratuities conferred.
• The District Court still denied Sun-Diamond’s
motion to dismiss Count One on the grounds
that “[i]t is sufficient for the indictment to
allege that Sun-Diamond provided things of
value to Secretary Espy because of his
position.”
• At trial, the District Court instructed the jury
that “[i]t is sufficient if Sun-Diamond provided
Espy with unauthorized compensation simply
because he held public office,”
• and that “[t]he government need not prove
that the alleged gratuity was linked to a
specific or identifiable official act or any act at
all.”
• Sun-Diamond was convicted on Count One
and fined $400,000.
• Sun-Diamond appealed.
 Court’s Decision
• Conviction reversed.
• We hold that, in order to establish a violation
of 18 U.S.C. § 201(c)(1)(A), the Government
must prove a link between a thing of value
conferred upon a public official and a specific
“official act” for or because of which it was
given.
• [We refuse] to read § 201(c)(1)(A) as a
prohibition of gifts given by reason of the
donee's office [as opposed to by reason of a
particular official act].
 My Translation of Decision
• Sun-Diamond radically restricted scope of 18
U.S.C. § 201.
• First, “any official act” does not include
unidentified future favors by public official. It
includes only particular, identifiable favors by
public official.
• Second, these particular, identifiable favors do
not even include visits or speaking
engagements.
 18 U.S.C. § 201(c) [gratuities as opposed to
bribery]
(c) Whoever--

(1) otherwise than as provided by law for the proper discharge

of official duty--

(A) directly or indirectly gives, offers, or promises anything of

value to any public official, former public official, or person
selected to be a public official, for or because of any official act
performed or to be performed by such public official, former
public official, or person selected to be a public official; or
(B) being a public official, former public official,
or person selected to be a public official,
otherwise than as provided by law for the
proper discharge of official duty, directly or
indirectly demands, seeks, receives, accepts, or
agrees to receive or accept anything of value
personally for or because of any official act
performed or to be performed by such official or
person;
shall be fined under this title or imprisoned for
not more than two years, or both.
Court’s Reasoning
 Argument #1: Statutory Language
• The statutory text prohibits only gratuities
given or received “for or because of any
official act performed or to be performed.”
• ... The insistence upon an “official act,”
carefully defined, seems pregnant with the
requirement that some particular official act
be identified and proved.
Argument #2: Commonsense Interpretation
of “any”
• It seems to us that this means “for or because
of some particular official act of whatever
identity”— just as the question “Do you like
any composer?” normally means “Do you like
some particular composer?”
• It is linguistically possible, of course, for the
phrase to mean “for or because of official acts
in general, without specification as to which
one”— just as the question “Do you like any
composer?” could mean “Do you like all
composers, no matter what their names or
music?”
• But the former seems to us the more natural
meaning, especially given the complex
structure of the provision before us here.
 My Translation
• Two interpretations of “Do you like any composer?”
– Do you like all composers – i.e., whichever composer I will
name? (Are you not at all picky or discriminating about
classical music?)
– Do you like a particular composer? (If so, who?)
• Latter much more plausible interpretation of
question than former.
• Likewise, Scalia argues, “any official act” is more
plausibly interpreted as a particular, identified official
act than official acts in general.
 The Problem with Scalia’s Reasoning

• Scalia is correct to distinguish between two

different senses of “any”.
• But he fails to show why the “any” in “Do you
like any composer?” is the same sense of
“any” in 201.
• On the contrary, “any” in 201 seems to mean
whichever rather than particular in mind.
 Four Examples
1. Any day next week should work.
– “Any” = whichever. No particular day in mind.
2. Is there any day next week that works?
– “any” = particular day you have in mind.
3. Take anything you want.
– Anything = whatever. I don’t have any particular
objects in mind. You can take whatever you want.
4. Can I buy you anything?
– Anything = particular thing(s) you have in mind.
 Scalia vs. Me
• Scalia says that “any” in 201 is meant like
“any” and “anything” in (2) and (4).
• My sense is that “any” in 201 is meant more
like “any” and “anything” in (1) and (3).
 Nothing Paradox
• Nothing is better than paradise.
• Half a sandwich is better than nothing.
• Therefore, by transitivity, half a sandwich is
better than paradise.
• [Solution: Two different senses of “nothing”
here, just as there are two different senses of
“any”.]
Argument #3: What Statute Does Not Say

• [I]f the Government's interpretation were

correct, it would have sufficed to say “for or
because of such official's ability to favor the
donor in executing the functions of his office”
• instead of: “for or because of any official act
performed or to be performed by such public
official.”
 Argument #4: Reductio ad Absurdum of
Prosecution’s Interpretation (Common Sense)
• [P]eculiar results [from] the Government's
alternative reading: it would criminalize, for
example, token gifts to the President based on
his official position and not linked to any
identifiable act—such as the replica jerseys
given by championship sports teams each year
during ceremonial White House visits.
• Similarly, it would criminalize a high school
principal's gift of a school baseball cap to the
Secretary of Education, by reason of his office,
on the occasion of the latter's visit to the
school.
• That these examples are not fanciful is
demonstrated by the fact that counsel for the
United States maintained at oral argument that a
group of farmers would violate § 201(c)(1)(A) by
providing a complimentary lunch for the Secretary
of Agriculture in conjunction with his speech to
the farmers concerning various matters of USDA
policy—so long as the Secretary had before him,
or had in prospect, matters affecting the farmers.
• Of course the Secretary of Agriculture always has
before him or in prospect matters that affect
farmers, just as the President always has before
him or in prospect matters that affect college and
professional sports, and the Secretary of Education
matters that affect high schools.
• … Thus, when the violation is linked to a particular
“official act,” it is possible to eliminate the
absurdities through the definition of that term.
 My Response to Argument #4
• Scalia is arguing that it would be absurd to regard small
gifts given to famous public officials because of their office
(status) as bribery/gratuities.
• He’s right.
• But it doesn’t follow that “any official act” means only
particular, identifiable official acts.
• Instead, all that follows:
– A visit or invitation from famous public official is not an official
act at all.
or
– If it is an official act, it should be exempted from 201.
Argument #5: Merely Visiting or Speaking with
Constituents Is Not an “Official Act”
• [I]n the above-given examples, the gifts could
easily be regarded as having been conferred,
not only because of the official's position as
President or Secretary,
• but also (and perhaps principally) “for or
because of” the official acts of receiving the
sports teams at the White House, visiting the
high school, and speaking to the farmers about
USDA policy, respectively.
• [While these acts] are assuredly “official acts”
in some sense[, they] are not “official acts”
within the meaning of the statute ...
 Argument #6: Statutory Language as
Interpreted in Context of Other Statutes
• [W]hen Congress has wanted to adopt such a
broadly prophylactic criminal prohibition upon
gift giving, it has done so in a more precise
and more administrable fashion.
 Examples
• 18 U.S.C. § 209(a) criminalizes the giving or
receiving of any “supplementation” of an
Executive official's salary, without regard to
the purpose of the payment.
• 18 U.S.C. §§ 212-13 make it a crime for a bank
employee to give a bank examiner, and for a
bank examiner to receive from a bank
employee, “any loan or gratuity,” again
without regard to the purpose for which it is
given.
• 29 U.S.C. § 186 makes it a felony for an
employer to give to a union representative,
and for a union representative to receive from
an employer, anything of value.
• With clearly framed and easily administrable
provisions such as these on the books
imposing gift-giving and gift-receiving
prohibitions specifically based upon the
holding of office,
• it seems to us most implausible that Congress
intended the language of the gratuity statute –
“for or because of any official act performed
or to be performed”— to pertain to the office
rather than (as the language more naturally
suggests) to particular official acts.
My Reaction: Argument #6 Is Weak
• Scalia is arguing that other statutes make clear
that “any” means whichever = no particular
thing in mind.
• So it would seem to follow that “any official
act” means whichever official act in 201 = no
particular official act in mind.
• Yet without any explanation, he assumes just
the opposite, that the “any” in 201 means
particular in mind.
18 U.S.C. § 666. Theft or bribery concerning programs
receiving Federal funds (first passed in 1984) (pp. 297-
98)

(a) Whoever, if the circumstance described in

subsection (b) of this section exists –

(1) being an agent of an organization, or of a

State, local, or Indian tribal government, or
any agency thereof –
(A) embezzles, steals, obtains by fraud, or otherwise
without authority knowingly converts to the use of any
person other than the rightful owner or intentionally
misapplies, property that--

(i) is valued at $5,000 or more, and

(ii) is owned by, or is under the care, custody, or control

of such organization, government, or agency; or
(B) corruptly solicits or demands for the benefit
of any person, or accepts or agrees to accept,
anything of value from any person, intending to
be influenced or rewarded in connection with
any business, transaction, or series of
transactions of such organization, government,
or agency involving any thing of value of $5,000
or more; or
(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
such organization, government, or agency
involving anything of value of $5,000 or more;
shall be fined under this title, imprisoned not
more than 10 years, or both.
(b) The circumstance referred to in subsection
(a) of this section is that the organization,
government, or agency receives, in any one year
period, benefits in excess of $10,000 under a
Federal program involving a grant, contract,
subsidy, loan, guarantee, insurance, or other
form of Federal assistance.
 18 U.S.C. § 666 = More Controversial Than
Standard Federal Theft Statutes
• 666 confers federal jurisdiction over theft
crimes that are not obviously federal at all.
 Example
• I solicit $6000 from a student in exchange for a
4.0.
• LSU receives over $10,000/year from the federal
government.
• Our bribery scheme has NOTHING to do with this
money.
• Yet by the letter of 666, we both just committed a
federal crime.
• Seems odd.
Salinas v. U.S., 522 U.S. 52, 56-57, 58-59
(1997) (J. Kennedy) (pp. 298, 300)
 Facts
• Scheme in which a Texas county sheriff
accepted money, and his deputy, petitioner
Salinas, accepted two watches and a truck, in
exchange for permitting women to make so-
called “contact visits” to one Beltran,
• a federal prisoner housed in the county jail
pursuant to an agreement with the Federal
Government.
• In 1984, the United States Marshals Service
and Hidalgo County entered into agreements
under which the county would take custody of
federal prisoners.
• In exchange, the Federal Government agreed
to make a grant to the county for improving its
jail and also agreed to pay the county a specific
amount per day for each federal prisoner
housed.
• Based on the estimated number of federal
prisoners to be maintained, payments to the
county were projected to be $915,785 per
year.
 Central Legal Questions
1. Given that the bribes did not involve the federal money
flowing into the correctional facility, did 18 U.S.C. § 666
cover them?

2. More generally, why should the federal government

have jurisdiction over Salinas simply because federal funds
were received by the state agency that employed him?

Shouldn’t the federal funds have to be involved in the

bribery?
 Salinas Court’s Decision
• SCOTUS unanimously rejected petitioner’s
attempt to narrow § 666’s reach by holding
that the government is not required to prove
that bribes involved misappropriation or
misuse of federal funds,
• only that bribetaker’s institution received
federal funds.
• Subject to the $5,000 threshold for the
business or transaction in question, [§ 666(a)
(1)(B)] forbids acceptance of a bribe by a
covered official who intends “to be influenced
or rewarded in connection with any business,
transaction, or series of transactions of [the
defined] organization, government or agency.”
• The enactment's expansive, unqualified
language, both as to the bribes forbidden and
the entities covered, does not support the
interpretation that federal funds must be
affected to violate § 666(a)(1)(B).
• The prohibition is not confined to a business
or transaction which affects federal funds.
• The word “any,” which prefaces the business
or transaction clause, undercuts the attempt
to impose this narrowing construction.
 Note: Doesn’t Seem to Be Any Rhyme or
Reason to Court’s Interpretation of “Any”
• In Salinas, the Court adopted a broad
interpretation of “any business, transaction, or
series of transactions of [the defined]
organization, government or agency.”
– “any” means whichever business, etc.
• 2 years later, in Sun-Diamond, they adopted a
narrow, restrictive interpretation of “any official
act”.
– “any” means particular act in mind.