# United States v. Gjergj Gjieli, (81-1087), Nickola Lulgjuraj, (81-1088), Zeff Lulgjuraj, (81-1089) > Court of Appeals for the Sixth Circuit · September 21, 1983 · 717 F.2d 968 URL: https://www.frixlaw.com/law-library/cases/9471211 ## Case - **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Gjergj GJIELI, (81-1087), Nickola Lulgjuraj, (81-1088), Zeff Lulgjuraj, (81-1089), Defendants-Appellants - **Court:** Court of Appeals for the Sixth Circuit - **Decided:** September 21, 1983 - **Citations:** 717 F.2d 968; 1983 U.S. App. LEXIS 16717 - **Precedential status:** Published - **Opinion:** Dissent by Lively - **Judges:** Lively, Kennedy, Wilhoit - **Cited by:** 20 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9471211 ## How later opinions describe it (automated extraction) - holding (in the bribery context) that the "official duty" provision is broader than the "official act" provision in that only the latter requires that "the act induced fall within the federal employee's official function" - affirming defendant’s conviction for bribing a public official to induce him to act in violation of his “lawful duty” because bribe was calculated to cause public official to breach his duty to “uphold the laws of all governments within the United States” as established by civ… ## Opinion text LIVELY, Circuit Judge, dissenting. I respectfully dissent. As I view the case the question presented is whether it is a federal offense to offer or pay a bribe to an officer of the United States for the performance of an act which would violate the laws of a state, but which would violate no law of the United States, and which is totally unrelated to the officer’s official duties. There is no doubt that the defendants engaged in unlawful activity. However, they were indicted and tried for the specific offense of violating 18 U.S.C. § 201 (b)(3) (1976). Unlike the majority I see nothing in the language or history of the federal bribery statute of which § 201(b)(3) is a part to indicate that Congress ever intended to make it a federal offense to offer or pay a bribe to a person who happens to be an employee of the United States to violate a state law by actions which have no conceivable relation to the bribee’s official duties. I read the 1962 Act as nothing more than a collation and recodification of earlier bribery acts into a single section of Title 18. It made no substantive changes to the provisions now found in § 201(b)(3). I am not convinced that the understanding of the briber rather than the range of official duties of the person bribed determines the applicability of the federal statute. A. A federal bribery statute enacted as section 5451 of the Revised Statutes of 1878 provided: Sec. 5451. Every person who promises, offers, or gives, or causes or procures to be promised, offered, or given, any money or other thing of value, or makes or tenders any contract, undertaking, obli *980 gation, gratuity, or security for the payment of money, or for the delivery or conveyance of anything of value, to any officer of the United States, or to any person acting for or on behalf of the United States in any official function, under or by authority of any department or office of the government thereof, or to any officer or person acting for or on behalf of either house of congress, or of any committee of either house, or both houses thereof, with intent to influence his decision or action on any question, matter, cause, or proceeding which may at any time be pending, or which may by law be brought before him in his official capacity, or in his place of trust or profit, or with intent to influence him to commit, or aid in committing, or to collude in or allow, any fraud, or make opportunity for the commission of any fraud on the United States, or to induce him to do or omit to do any act in violation of his lawful duty, shall be punished as prescribed in the preceding section. As codified in the Criminal Code of 1909 the bribery statute was contained in sections 117 and 39 which are similar to present-day 18 U.S.C. § 201 (c)(1) and § 201(b) respectively. In 1948 the bribery statute, along with all other criminal laws, was placed in Title 18. From 1948 to 1962, 18 U.S.C. § 201 provided: § 201. Offer to officer or other person. Whoever promises, offers, or gives any money or thing of value, or makes or tenders any check, order, contract, undertaking, obligation, gratuity, or security for the payment of money or for the delivery or conveyance of anything of value, to any officer or employee or person acting for or on behalf of the United States, or any department or agency thereof, in any official function, under or by authority of any such department or agency or to any officer or person acting for or on behalf of either House of Congress, or of any committee of either House, or both Houses thereof, with intent to influence his decision or action on any question, matter, cause, or proceeding which may at any time be pending, or which may by law be brought before him in his official capacity, or in his place of trust or profit, or with intent to influence him to commit or aid in committing, or to collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States, or to induce him to do or omit to do any act in violation of his lawful duty, shall be fined not more than three times the amount of such money or value of such thing or imprisoned not more than three years, or both. In 1962 Congress cast § 201 in its current form as part of the Bribery, Graft and Conflicts of Interest Act. In the 1962 Act § 201(b) contains the same elements found in the 1878 statute and the 1909 and 1948 codifications, with only minor changes. The legislative history of the 1962 Act reflects primarily the concern of Congress with redefining conflicts of interest of federal officials. However, the Senate Report on the bill which became the 1962 Act, H.R. 8140, states the purpose of that part of the Act dealing with bribery. After discussing the conflicts of interest portions of the Act, the report continues: A secondary feature of the bill is the substitution of a single comprehensive section of the Criminal Code for a number of existing statutes concerned with bribery. This consolidation would make no significant changes of substance and, more particularly, would not restrict the broad scope of the present bribery statutes as construed by the courts. S.Rep. No. 2213, 87th Cong., 2d Sess., reprinted in [1962] U.S.Code Cong. & Ad. News 3852, 3853. In discussing § 201 in the section-by-section analysis the report summarizes § 201(b) as follows: Subsection (b) makes it unlawful for anyone to bribe or attempt to bribe a public official by corruptly giving, offering, or promising him or any person selected by him, anything of value with intent to influence any official act by him, to influence him to commit or allow any fraud on the United States, or to induce him to do or omit to do any act in *981 violation of his lawful duty. The three alternate intents specified in the subsection are in substance the same as those now prescribed in title 18, United States Code, section 201 . The subsection expands present law to a degree in its provisions forbidding an offer or promise of something of value from which a public official himself will not benefit but which will be of advantage to another person in whose well-being he is interested. Id. at 3856-57 . B. What is now 18 U.S.C. § 201 (b) has remained virtually unchanged since 1878. The codifications and amendments have not altered the substance of the federal offense of bribery. The present law is intended to have the broad scope of earlier bribery statutes “as construed by the courts.” The 1878 bribery statute was construed in United States v. Gibson, 47 F. 833 (N.D.Ill.1891). The defendant in that case was charged with offering an internal revenue officer money to set fire to a distillery. The officer was entitled to enter the distillery at any time it was open for the purpose of seeing that proper revenue stamps were affixed to all receptacles containing alcoholic spirits. However, he had no other duties with respect to the distillery. The district court quashed the indictment upon finding that “to bribe or induce such an officer to do an act not connected with his line of duty impinges upon no United States law, and does not subject the offender to indictment and punishment in the United States courts.” Id. at 834 . While the revenue officer’s right to enter the distillery made him a convenient person to attempt to employ for the purpose of destroying the distillery, this fact did not bring the offer within the federal bribery statute. The court concluded its opinion: The bribe offered was for an act entirely outside the official function of the officer to whom, it is claimed, the bribe was offered. The right to enter the distillery was not given him that he might do this, but that he might enter there for the purpose of merely inspecting the articles in the distillery, and hence the act which it was sought to have him accomplish by the inducement offered was in no respect within the duty of this officer. The alleged offers cannot be said to have been made to induce the officer to do or omit to do any act in violation of his lawful duty. It will, of course, be understood that this motion is disposed of solely on the ground that the offense charged was not within the jurisdiction of this court, but is wholly within the cognizance of the state courts. The motion to quash is sustained. Id. at 835 . A similar conclusion was reached in In re Yee Gee, 83 F. 145 (D.Wash.1897), where the defendant solicited a government employee to give false translations of Chinese letters and documents which the defendant anticipated would be offered in evidence in a pending criminal case. The interpreter had not been appointed or designated to make the translations, though his duties were to assist customs officers in interpreting and translating from Chinese to English and from English to Chinese. The district court found that it was not a function of his position to make translations in court proceedings and in the absence of a specific appointment to do so, any such activity on his part would not be performed in his official capacity. The Supreme Court dealt with the bribery provisions of the Criminal Code of 1909 in United States v. Birdsall, 233 U.S. 223 , 34 S.Ct. 512 , 58 L.Ed. 930 (1914). The court described the substance of the two sections as follows: Section 117 of the Criminal Code (35 Stat. p. 1109), with respect to the acceptance of bribes, provides that “whoever, being an officer of the United States, or a person acting for or on behalf of the United States, in any official capacity, under or by virtue of the authority of any department or office of the Government thereof” accepts money, etc., “with intent to have his decision or action on any question, matter, cause, or proceeding *982 which may at any time be pending, or which may by law be brought before him in his official capacity, or in his place of trust or profit, influenced thereby” shall be punished as stated. Section 39 (id. p. 1096), as to bribe giving, uses similar language in defining the official relation of the recipient and the character of the action intended to be influenced; adding the words — “with intent to influence him to commit ... any fraud ... on the United States, or to induce him to do or omit to do any act in violation of his lawful duty.” Id. at 230 , 34 S.Ct. at 514 . Section 39, referred to in the quoted passage, was substantively identical to § 5451 of the 1878 statute. It seems clear that the Supreme Court related the final clause of § 39, “or to induce him to do or omit to do any act in violation of his lawful duty,” to the requirement that the bribe be offered “with intent to have his decision or action on any question, matter, cause, or proceeding which may at any time be pending, or which may by law be brought before him in his official capacity, or in his place of trust or profit .... ” The final clause did not refer to an act or omission in violation of his general duty to uphold the law, but to his official duties. The Court wrote, “Every action that is within the range of official duty comes within the purview of these sections.” Id. Only when it is charged that the action sought to be influenced is official action is there a basis for prosecution under the federal bribery statute. The Court explained that official action need not be prescribed by statute, but may be a requirement of the department for which the officer is acting and may be evidenced by established usage as well as written rules. Id. at 231, 34 S.Ct. at 514 . This court dealt with 18 U.S.C. § 201 under the 1948 Criminal Code in Blunden v. United States, 169 F.2d 991 (6th Cir.1948). As has been pointed out, there is no material difference between the final clause of § 201 (1948) and the present § 201(b)(3). In Blunden the defendants thought the person to whom they paid money had the authority to release surplus government property to them. In fact, that person, an Army civilian employee, had no control over surplus property, although he had misrepresented his authority to the defendants. Under these circumstances the court found there was no bribery under § 201, though the defendants clearly intended to corrupt a federal employee. The language now found in § 201(b)(3) was not discussed. The court cited two previous Sixth Circuit cases “which ... held that in order for the offense to exist under the statute it was necessary that the person offering the bribe believe that the employee had the necessary authority and also that the employee possess the actual authority to act or assist in the matter.” 169 F.2d at 994 . The court then stated: The crux of the offense is the intent to influence an official decision. The statute requires that the employee be acting for the Government in an “official function” and that the matter in which his decision is to be influenced be “before him in his official capacity.” Id. (Emphasis in original). In a subsequent § 201 case this court distinguished Blunden but did not depart in any respect from its holding. See Krogmann v. United States, 225 F.2d 220 (6th Cir.1955). Blunden has been criticized as being too restrictive in interpreting § 201. See, e.g., Hurley v. United States, 192 F.2d 297, 300 (4th Cir.1951). See also Schneider v. United States, 192 F.2d 498 (9th Cir.1951), cert. denied, 343 U.S. 914 , 72 S.Ct. 646 , 96 L.Ed. 1329 (1952), where the result would have been different if the Blunden requirement respecting the authority of the bribery target had been strictly followed. Nevertheless, in each of these cases the bribe was paid to influence a decision or obtain action which violated a duty owed to the United States as employer of the target of the bribe. In Hurley v. United States, supra, the defendant paid money to an Air Force sergeant attached to an induction center to prevent the defendant’s induction into the armed forces. The sergeant to whom the bribe was paid had no authority to prevent *983 an induction legally, though he could do it illegally. The court concluded that the act sought by the briber need not be within the actual authority of the person bribed. Nevertheless, the lawful duty of the sergeant which the defendant wanted him to breach was his official duty to the government of which he was an officer, not to some other entity. Though not within his authority, the illegal act, if performed, would have been injurious to the United States. In Schneider v. United States, supra, the defendant paid an Army air base salvage officer to substitute other salvage material for the scrap which he had purchased. The court stated that if any base salvage officer “should fail to prevent or to report an unauthorized removal of government property from the base knowing that such a removal was contrary to law he would fail in his lawful duty. This would be true whether or not he possessed specific authority to sell the property.” 192 F.2d at 501 (citation omitted). Since the officer’s official duties required him to protect government property, the bribe was offered to cause him to fail to do his duty as base salvage officer. Thus, the court took a broader view of the “authority to act” requirement of § 201 than this court did in Blunden . However, the Schneider court did not depart from the requirement that the bribe relate to an official function of the target of the bribe: The statute itself and the cases construing it or its predecessor make it clear that no violation of the law can take place unless the individual bribed or attempted to be bribed is an officer or employee or person acting for or on behalf of the United States or a department or agency thereof, and that the bribe or the offer is in connection with his line of duty. The duties of him to whom the offer is made or the bribe given are most pertinent. Id. at 500 (footnote omitted) (emphasis added). I agree with the holding in Schneider . The requirement of United States v. Blunden that the act sought by the briber be within the actual authority of the person bribed does not apply where the defendant is charged specifically with violating § 201(b)(3). However, in all § 201(b)(3) prosecutions the act sought by the briber must be a violation of some official duty of the person bribed. The act sought must be “within the range of official duty” of the person bribed. Birdsall, supra, 233 U.S. at 230 , 34 S.Ct. at 514 . C. After careful consideration I conclude that the actions of the defendants in the present case did not constitute a violation of 18 U.S.C. § 201 (b)(3). Van Hengel had no official duties with respect to Michigan state prisons or their inmates. The fact that the defendants, or at least Gjieli, thought he might have some influence with state prison authorities is immaterial. The bribe must be offered or paid to induce action which violates the lawful duty of the offeree or payee. “Every action that is within the range of official duty comes within the purview of these sections.” Birdsall, supra, 233 U.S. at 230 , 34 S.Ct. at 514 (emphasis added). Neither preventing the escape nor obtaining the release of inmates from Jackson State Prison was within the range of Van Hengel’s official duty. The fact that Van Hengel is an ATF agent under a general duty to refrain from criminal and dishonest acts and to uphold the laws of the land is not enough. He was not paid to do or omit to do any act related to his official duties. The decision to prosecute the defendants under the federal bribery statute is puzzling in view of the fact that the Michigan State Police were involved in the investigation from the beginning. The endeavor to free Lulgjuraj would have violated Michigan law as set forth in M.C.L.A. § 750.183, “Aiding escape of and rescuing prisoners”: Any person who ... shall by any means whatever, aid or assist any ... prisoner in his endeavor to make his escape [from any jail, prison or like place of confinement], whether such escape be affected (sic) or attempted, or not . .. shall be guilty of a felony, punishable by impris *984 onment in the state prison not more than 7 years ... The State of Michigan has a strong interest in prosecuting anyone who would seek to effect the unlawful release of a person convicted of capital crimes. If the information in this case had been turned over to a Michigan prosecutor I have no doubt that the matter would have been pursued vigorously. The district court should have granted the defendants’ motion for acquittal. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9471211. Public record. Not legal advice.