Petitioners Brief — Perrin v. United States
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Supreme Court, U.*
FILED
P 28 1970
g ICHAEL ROL»: ‘ |
IN THE . a
Supreme Court of the United States
OcToper Term, 1979
No. 78-959
VINCENT R. Perrin, Jr.,
Petitioner,
Vv.
Unitep STATES oF AMERICA,
Respondent.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
REPLY BRIEF
Lewis A. KoRNHAUSER InA J. KURZBAN
New York University KurzBan & Kurzpan, P.A,
School of Law 700 Brickell Avenue
40 Washington Sq. South Suite 901
New York, N.Y. 10012 Miami, Florida 33131
Rovert G, Hark LeoNARD B. Boupin
4616 Jefferson Highway Rabinowitz, Boupin, STANDARD
Metairie, La. KRINSKY & LIEBERMAN
aN, ae ee 30 Kast 42nd Street
Suite 1215 New York, N.Y. 10017
144 Elk Place Plaza Apert J. AHERN, Jr.
New Orleans, La, 70112 One Skyline Place
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Virginia 22041
TABLE OF CONTENTS
Summary of Argument 0.000000... RE IAG Os 0-0
ARGUMENT:
I, Congress Intended, in the Travel Act, to Define
“Bribery” as an Offer of Money or of Other
Benefits to Corrupt a Person Holding Publie
Office or Charged With a Publie Trust .0..00........
A.
B.
C.
Accepted Legal Usage Today and at the Time
of Knactment of the Travel Act Defined
“Bribery” as an Offer of Money or Other
Benefit to Corrupt a Person Holding Publie
Office or Charged With a Publie Trust ........
1... "Ree: Combis TOW fos a as
2. The Pattern of Congressional Enactments
GD ONE | ccc TSH DYNEA HA
Zo SN: AURIERNOD Gio ae
This Court’s Decision ¢in United States v.
Nardello Is Consistent With-a—Definition of
Bribery That Requires the Corruption of a
PIR NE iis ccosened secs EO BR APS oy to A
The Legislative History of the Travel Aet
Demonstrates That Congress Intended to
Define Bribery With Reference to Persons
Charged With a Publie Trust: 2000000000... icetts
. The Inelusion of Commercial Bribery With-
in the Ambit of the Travel Aet Would Be
Inconsistent With the Purposes Sought to Be
BIST OR W COT OIG occ enservsscicsnctiestiodastnessocee.
10
13
il
PAGE
II. To Include Commercial Bribery Within the Ambit
of the Travel Act Violates the Petitioner’s Due
Process Right to Fair Notice as That Right is
Variously Recognized in the Judicial Doctrines
of Lenity, Void-for-Vagueness as Applied and
the Rule of Bowie v. City of Columbia ............... 19
A. The void-for-vagueness doctrine .................. . 2
B. A Broad Interpretation of the Travel Act
When Applied to the Defendant Amounts to
an Ka Post Facto Law in Violation of the
Due Process Clause of the Fifth Amendment 23
CONCLUSION .......... Mak: Reet Roe Bee PSP Ss Sag TA NR 26
eee ar NN os din) ee ee aoe 27
Taste or AUTHORITIES
Cases:
Arroyo v. United States, 359 U.S. 419 (1959) 0... 7
Barrett v. United States, 423 U.S, 212 (1976) 00000... 20
Bell v. United States, 349 U.S. 81 (1955)... 00. 20
Bouie vy. City of Columbia, 378 U.S. 347 (1964) _..3, 19, 20,
23, 24, 25
Champlin Refining Co. v. Corporation Commission of
Oklahoma, 286 U.S. 210 (1932) ou... pec desc c cesses 22
Connally v. General Construction Company, 269 U.S.
RTs RR eT bigeae AN. bomen ene RAE Ly ia RME 21, 22, 23
Conway Import Co. vy. United States, 311 F.Supp. 5
CRREL Es SUMED) cccsvicrsnchccdadindeths ta dinap bideitnabgicanittd smoaneoabeth 10
Douglas v. Buder, 412 U.S. 480 (1973) ooo... 23
Dunn v. United States, —— U.S. ——, 99 S. Ct. 2190
CITT | tdecsndichosenssacteibibeteutic ca lotuamny ih idilcdaile id Snipe lbidiahiacetl 3, 20
on Cee Sete Bee
i te
ili
PAGE
Erlenbaugh v. United States, 409 U.S, 239 (1972) ........ 17
F.C.C. v. American Broadcasting Co., 347 U.S. 284
(1964) sanduadbuehapelcaebonieapiactdnastnanacdesseneeaacedeetelosionebene aa 23
Huddleston v. United States, 415 U.S. 814 (1974) ........ 20
James v. United States, 366 U.S. 213 (1961) 0000000... 22
Lanzetta v. New Jersey, 306 U.S. 451 (1939) oo... 21, 22
Marks v. United States, 430 U.S. 188 (1977) ...... 23, 24, 25
McBoyle v. United States, 283 U.S. 25 (1981)... 21
Nash v. United States, 229 U.S. 373 (1913) 000... 21
O’Shea v. Littleton, 414 U.S. 488 (1974) oo. 17
Papachristou vy. City of Jacksonville, 405 U.S. 156
OTRO EA TCR clad tev any ot aot a 21, 22
Pierce v. United States, 314 U.S. 306 (1941) 2000... 23, 24
Rainwater v, United States, 356 U.S. 590 (1950) ....... 15
Rewis v, United States, 401 U.S. 808 (1971)... 13, 16, 20
Rizzo v. Goode, 423 U.S. 362 (1976) 0.0... 3,17
Scarborough v. United States, 431 U.S. 563 (1977) ........ 19
Smith v. Cahoon, 283 U.S. 553 (1931) Vet ONT RSE 8 24
Smith v. United States, 360 U.S. 1 (1959) 23
Splawn vy. California, 431 U.S. 595 (1977) 0. 22
Stefanelli v. Minard, 342 U.S. 117 (1951) 2000... 17
United States v. Bass, 404 U.S. 336 (1971) 00... 17, 19, 23
United States v. Batchelder, US. ——, 47 U.S.
ee Se ek eee ee 20
United States v. Boston and Maine Railroad, 380 U.S.
BI I cn coleaepnenihicedih ee nal ag oN aD let 22
United States v. Brecht, 540 F.2d 45 (2nd Cir, 1976)
6, 12, 15, 18, 25
iv
PAGE
United States v. Campos-Serrano, 404 U.S. 298 (1971) 28
United States v. Cohen Grocery Co., 255 U.S. 81 (1921)
21, 22
United States v, Culbert, 485 U.S. 871 (1978) 00... 17, 20
United States v, Dansker, 587 F.2d 40 (8rd Cir, 1976) 6
United States v. Forsythe, 560 F.2d 1127 (3rd Cir.
gt SOPRAIRE ees we tits TR PT ad is Dg Ta ae Oy Be 6
United States v. Hawthorne, 356 F.2d 740 (4th Cir.),
eort; den. 364° U5, BOS CISGG) oe 13
United States v. Tbe: 464 F.2d 593 (Sth Cir. 1972)... 5
United States v. Naftalin, —— US. ——, 60 L. 1d.2d
eT OTE kad ss Nactahitenihnsaliaoneclncgith he cece ety sansl oe 20
United States vy. Nardello, 393 U.S. 286 (1969) ........2, 4, 10,
11, 12, 14, 15, 16, 18
United States vy. Noveck, 271 U.S. 201 (1926) . o. ee
United States v. Pomponio, 511 F.2d 953 (4th Cir,),
cert, denied 423 U.S. 874 (1975) ......ccc cece ccccseccccee es 25
United States v. Price, 361 U.S. 304 (1960) 0000... 14
United States v. Reese, 92 U.S. 214 (1876) 0. 21
United States v. Ryan, 350 U.S. 299 (1956) 00. 7
United States vy. Turley, 352 U.S. 407 (1957) 0. 4
United States v. United Mine Workers, 330 U.S. 258
CRIT EO SENS LS A il
United States v. Wise, 370 U.S. 405 (1962) oo. 14
United States v. Zacher, 586 F.2d 912 (2nd Cir. 1978). 6
Weeds, Inc. vy. United States, 255 U.S. 109 (1921) ...... 21, 22
Winters v, New York, 333 U.S. 507 (1948) 000000... 21, 22
Constitution:
2 9 Rane SN eats ANE eed Dine ar) ea Weare ANE 24
Statutes:
ce SH SESS CARDEN ee PICO bi M ER TNT A 6
ne Oey Oe ee ee at oo BEd 5,8
oe
Vv
PAGE
BIB ie) GRO Woke essndvces Snchiedce<endevomanennicadiielitiiminmluvtaden cesnssiy Ae
18 U.S.C. § 224 ...... LEAS ARORA ERR ORT DOR Codes sesseesby By 14, 15
SA RE tc A deethcteek Gud eiecentiiod pinyechineeedend SS SHS We iy
BPY ET UI. Lintccctdsndnapshprinnanntecaalncdncbieaneeshipsarsies 25 dy 15, 22
56 U0 6 WOR RES EC 5 Tn Se 6, 8
, pte Qe | _ PRMD oper aah bane ciunCe te ornm mm Rae: Ree By OD |
BP: DBs SBIR iii ciads. ARO eae Pe 6 ee OR 7
42 U.8.C. $1396b ..021.001.0.0......... a: elicacdiihondheeals teieadssas 6
D.C, Code § 22-701 .................... eLINe P08 MS Raeeae ote eee my:
Federal Reserve Aet of 1913 (63rd Cong., Dee, 23, 1913,
38 Stat, 1972). ............ ls Be ts cesclaponsusnatoaiacenmneardedase reckak i)
Mass. Regulation of Trade, Chapter 96 §10 (1924) ... 18
Wis. Stat. Ann. Vol. 20 § 134.05 00000000020... Td aheoe VOD 18
Miscellaneous Authorities:
A.L.I. Proposed Official Draft, Model Penal Code
§ 224.8 and Article 240 (1974) oo... PO
De ae ee ee CO evs essa ei cipenninsetipllatencictenicnines 10
Coffee, Beyond the Shut-Eyed Sentry: Toward a The-
oretical View of Corporate Misconduct and an Effec-
tive Legal Response, 63 Virginia L. Rev. 1099 (1977) 10
92 Cong. Ree. 4891-4911, 5040-5044 (1946) 0. 7
93 Cong. Rec. 4628-80 (1942) .....:...4......cccccceccencesepeoscececeees 7
Curtis, The Law of Arson (1936) 0000... Fa Vas ore ice 12
Hall, General Principles of Criminal Law (2d Fad,
c+ pnb SESE TEN BS Wen re 22et RVEAE IS" SL Sk LY OO 24
vi
PAGE
Hearings on S. 1653-8 and S. 1665 Before the Senate
Committee on the Judiciary (“hearings”) (87th
COI, DE TOIL, "TION ) ceccctsdceeiesccctnpcnspatennnennliosienns 13, 14, 16
Holmes, The Path of the Law, 10 Harv. L. Rev. 457
MINT cockascasscasuditetattosck aiiehooteracbuncbmeuincumasenneaabomeiptseenainis 20
House Report No. 69, 63rd Cong. Ist Sess. 1913) ........ 5
House Report No. 966, 87th Cong. Ist Sess. (1961) ...... 16
H.R. 6869, 96th Cong. 1st Sess. (1979) .............-.c.ceeceeees 8
43 Journal of Criminal Law and Criminology .............. 12
Note, Control of Non-Governmental Corruption by
Criminal Legislation, 108 U. Pa. L. Rev. 848 (1960) 9
Note, The Scope of Bribery Under the Travel Act,
Journal of Criminal Law and Criminology (forth-
RIED: cinidctcncaissividemenddebddccstonicamabnnatneiatahiabmnnmbraci dads 15
S. 1437, 95th Cong. 2nd Sess. (1977) 0.0.0.2... cece 8,14
Senate Report No. 95-605, 95th Cong. 2d Sess. (1977) .. 8
Senate Report No. 644, 87th Cong., Ist Sess. (1961) ... 16
U.S. Code and Congressional Administrative News
| RT ARSE ME LS 8 NES es AS VOLS Sica, LC 23
U.S. Code and Congressional Administrative News
ER a PTE OM Ze eA Peace aD Bs 7
Working Draft of the Subcommittee on Criminal Jus-
tice, H.R. 96th Cong. Ist Sess. (Aug. 24, 1979)
IN THE
Supreme Court of the United States
Octrosper Terw, 1979
No. 78-959
Vincent R. Perrin, Jr.,
Petitioner,
Ve
Untrrep States or AMERICA,
Respondent.
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FIFTH CIRCUIT
REPLY BRIEF
Summary of Argument
The crux of the argument presented by the United States
may be simply stated: the Travel Act uses the term “brib-
ery” in a “generic” sense which encompasses commercial
bribery. The Government’s argument in support of this
proposition is flawed in every step.
1. Contrary to the Government’s position articulated at
pages 21-28 of Respondent’s brief, the accepted legal usage
of the term bribery, both today and at the date of enact-
ment, encompassed only gifts of money or of other benefits
to corrupt persons holding public office or, more recently,
charged with a public trust. This usage can be traced from
the common law origins of the crime in Lord Coke’s time
2
through the Congressional pattern of usage of the term in
various statutes, through the interpretation of these stat-
utes by the federal judiciary and through the usage of the
term in the vast majority of states.
2. United States v. Nardello, 393 U.S. 286 (1969), is,
contrary to the position of the Government, Respondent’s
brief at pp. 32-36, completely consistent with defining brib-
ery as dealing with the corruption of persons charged with
a public trust. Nardello decided that, for purposes of the
Travel Act, 18 U.S.C. § 1952, the term “extortion” encom-
passed both common law extortion which made criminal
corrupt acts by public officials and common law blackmail
which made criminal similar acts by private persons. In
Nardello, however, this Court relied on the fact that the
states and the Congress had long assimilated the two crimes
of extortion and blackmail into one. Unlike the assimilation
of these crimes, bribery and commercial bribery have con-
sistently been distinguished by Congress and the states.
The rationale of the Nardello decision requires that we
interpret bribery in the Travel Act solely as an offer of
money or other benefit to @ person charged with a public
trust. :
3. While the legislative history of the Travel Act is
not unambiguous, it does evidence a Congressional intent
to define bribery traditionally: as a crime directed against
the public. The Government’s reliance on the legislative
history of a subsequent statute, Respondent’s brief at pp.
30-31 (hereinafter “Resp. Br.”), is misplaced.
4. With the Travel Act Congress sought to address the
problem of organized crime and, as the Government fails
to realize, to address this problem in a manner consistent
with the principles of federalism. To include commercial
bribery in the ambit of the Travel Act would interfere
with the states’ “latitude in the dispatch of [their] own
3
affairs.” Rizzo v. Goode, 423 U.S. 362 (1976), by forcing
states either to leave commercial bribery outside the scope
of the criminal sanction, or tu invoke the heavy criminal
sanctions superimposed by the Travel Act upon the most
lenient misdemeanor statute a state might choose to enact.
5. The Government in its discussion of the doctrine of
lenity (Resp. Br. at pp. 47-48) fails to note that doc-
trine’s roots in “fundamental principles of due process.”
Dunn v. United States, US. , 99S. Ct. 2190 (1979),
Due process requires that citizens have fair notice of the
conduct Congress or any other legislature deems criminal.
This Court recognizes this requirement not only in the
doctrine of lenity but also in the void-for-vagueness doc-
trine and the rule of Bouie v. City of Columbia, 378 U.S.
347 (1964). These doctrines coalesce in Petitioner’s cir-
cumstances because the inclusion of commercial bribery
within the ambit of the term bribery in 18 U.S.C. § 1952( b)
would be contrary to all indications of the meaning of the
term petitioner might have had at the time of his conduct.
The construction offered by the government is thus vague
as applied and imposes a penalty on petitioner ex post
facto.
ARGUMENT
Congress Intended, in the Travel Act, to Define “Brib-
ery” as an Offer of Money or of Other Benefits to Cor-
rupt a Person Holding Public Office or Charged With a
Public Trust.
A. Accepted Legal Usage Today and at the Time of Enactment
of the Travel Act Defined “Bribery” as an Offer of Money
or Other Benefit to Corrupt a Person Holding Public Of-
fice or Charged With a Public Trust.
l. The Common Law
Petitioner and Respondent agree that bribery at common
law dealt solely with the corruption of public officials, or
persons charged with a public trust. United States v. Nar-
dello, supra, 393 U.S. at 293, n.11 (“{bribery] has tradi-
tionally focussed upon corrupt activities by public offi-
cials”). When common law bribery evolved to include the
corruption of jurors and witnesses, it held closely to its
original purpose of insulating the processes of justice from
manipulation. Similarly, the evolution of bribery to sub-
sume the corruption of voters insured the legitimacy of
the electoral process and thus reaffirmed that the funda-
mental purpose of bribery was the punishment of those
who seek to corrupt public officers. No source cited by
Respondents, see Resp. Br. at pp. 21-22, asserts that com-
mon law bribery reached beyond the corruption of public
officials, witnesses, jurors, or electors. Simply to follow
the long-established principle of interpreting undefined
terms in criminal statutes according to their common-law
meaning would therefore require acceptance of Petitioner’s
definition of bribery. United States v. Turley, 352 U.S.
407, 411 (1957) (“where a federal criminal statute uses
a common-law term of established meaning without other-
5
wise defining it, the general practice is to give the term
its common-law meaning”).
2. The Pattern of Congressional Enactments on Bribery
Examination of other federal statutes concerned with
bribery emphatically confirms that Congress intended in
the Travel Act to define bribery solely in terms of the cor-
ruption of those charged with a public trust.
The codification of federal criminal statutes covering
bribery, graft, and conflicts of interest, 18 U.S.C. §§ 201-224,
deal almost exclusively with the corruption of persons hold-
ing public office or charged with a publie trust... As the
Government notes, Resp. Br. at p. 25, “bribery” statutes
are also scattered throughout the United States Code and
a few of these call the corruption of various private per-
sons “bribery”. The Government’s reliance on these seat-
tered statutes is misplaced. First, each of these statutes
' There are two exceptions: (i) 18 U.S.C. § 224 makes criminal
bribery in sporting contests but it clearly identifies in subsection
(c)(3) the persons subject to corruption. Further, the act was
passed subsequent to the passage of the Travel Act. (ii) 18 U.S.C.
§ 215 makes criminal the receipt of moneys or other gifts by various
officers and agents of federally insured financial institutions: it is
thus a graft statute concerned with the conflict of interest of bank-
ers and not a bribery statute. See United States v. Lane, 464 F.2d
593 (8th Cir. 1972). This is also reflected in the legislative history
of the Federal Reserve Act of 1913, the originating legislation for
18 U.S.C. § 215. The House Report concerning the Federal Reserve
Act stated:
In this section it is sought to correct a bad practice, all too
prevalent, of paying fees to bank examiners in order that they
may make a favorable report upon the condition of the hank:
and further to end the illegitimate practice whereby officers
of national banks have heretofore profited at the expense of
borrowers by charging a commission or brokerage for the
obtaining of loans. The extent of these practices cannot be
stated, but that they prevail is certain; and it is equally clear
that they are opposed to public welfare and to sound banking.
besides being wholly at variance with fundamental principles
of honorable personal conduct.
House Report No. 69, 63rd Cong., Ist Sess. (1913),
6
clearly specifies the individuals whose corruption is at issue
and hence indicates Congressional awareness that specific-
ity was necessary.
More importantly, the most significant of these statutes
address solely the corruption of persons charged with a
public trust or holding public office. For instance, the
Foreign Corrupt Practices Act, 15 U.S.C. §§ 78 dd-1 et seq.
(1977) makes criminal payments to foreign officials, to
foreign political parties and candidates, and to any inter-
mediaries of these individuals and associations. Similarly,
the language of the Racketeer Influenced and Corrupt
Practices Act (“RICO”), 18 U.S.C. §§ 1961-1968, an act
whose purpose and language coincide with those of the
Travel Act, has been interpreted as applying only to the
corruption of public officials.? In United States v. Dansker,
537 F.2d 40 (3d Cir. 1976), the Third Circuit overturned
a conviction based on commercial bribery because the term
“bribery” included only
conduct which is intended, at least by the alleged briber,
as an assault on the integrity of a public office or an
official action.
Id. at 48. In United States v. Forsythe, 560 F.2d 1127 (3d
Cir. 1977), the Third Circuit reaffirmed this interpretation
of “bribery”.® *
Third, the statutes dealing with corruption of labor union
officials, 29 U.S.C. §186 and of the trustees of pension
* RICO defines racketeering as “any act or threat involving...
robbery, bribery, extortion, . . .”” 18 U.S.C. § 1961.
3’ As argued in Petitioner’s brief, the Second Circuit has inter-
preted “bribery” in the Travel Act consistently with the Third
Cireuit’s views of RICO. United States v. Brecht, 540 F.2d 45 (2d
Cir. 1976).
*In United States v. Zacher, 586 F.2d 912 (2d Cir. 1978) the
Second Circuit overturned a conviction under 42 U.S.C. § 1396h(b)
which prohibits the offer of any money “. . . in connection with the
furnishing of such [medicaid] items or service.” The Second Cir-
cuit construed the term bribery as requiring “the prostitution of a
public trust for private gain.” Id. at 915.
TE te ae
7
funds, 29 U.S.C. § 1111, represent an expansion of the con-
cept of a person charged with the public trust and thus
a limited expansion of the term bribery. These statutes
expand the notion of public trust solely to circumstances
in which a person serves as a fiduciary to a large number
of individuals. In both the union and pension instances one
individual represents a large number of other people just
as public officials represent the citizenry at large. Such a
conception of a holder of a public trust clearly excludes
commercial bribery from the ambit of the Travel Act.®
° The legislative histories of both statutes are devoid of material
that indicates Congressional intent to expand the concept of brib-
ery to the typical commercial bribery situation. Much of the debate
on § 186 arose over the section’s applicability to the United Mine
Workers’ demand for a health and welfare fund in the work stop-
page of 1946. See, e.g. 92 Cong. Ree. 4891-4911, 5040-5044 (1946) ;
93 Cong. Ree. 4678-4680 (1947). The Congressional debates, when
they do address the problem of corruption of officials, focus eriti-
eally on the fact that the object of the corruption is a representative
with the responsibility of promoting social welfare. 92 Cong. Ree.
5428 (1946) ( . the vice and evil which could and would arise
[if] the RSE er be allowed to contribute vast sums of money
to the men who are supposed to be representing the employees’’ ).
Similarly, this Court in construing § 186 has emphasized the repre-
sentation interest that the statute protects:
Those members of Congress who supported the amendment
were concerned with the corruption of collective bargaining
through bribery of employee representatives by employers
Arroyo v. United States, 359 U.S. 419, 425-6 (1959). See also
United States v. Ryan, 350 U.S. 299 (1956).
In fact, Congress did not even use the term bribery in 29 U.S.C.
$186:
It shall be unlawful... to pay, lend, or deliver, or agree to
pay, lend or deliver, any money or other thing of value...
29 U.S.C. § 186.
While the House and Senate Reports on Public Law 93-406, to
which 29 U.S.C. § 1111 (Section 411) is a part, do not discuss ‘the
section at all, 1974 U.S. Code Cong. and Adm. News 4639, the
purpose of the Employee Retirement Income Security Act of 1974
is completely consistent with the interpretation offered in the text:
§§ 186 and 1111 represent at most a minor extension of the concept
“holder of a public trust’ to the employees’ representative situa-
tion.
8
Fourth, examination of the statutory law of the District
of Columbia reveals that Congress has enacted a criminal
statute covering bribery of public officials but none covering
commercial bribery. D.C. Code § 22-701.
Fifth, when Congress wishes to punish commercial brib-
ery or any of the other conduct that Respondent now wishes
to include in a generic definition of bribery, it has always
specifically done so:
Racketeering activity means (A) any act or threat in-
volving murder, kidnapping, gambling, arson, robbery,
bribery, extortion, or dealing in narcotic or dangerous
drugs which is chargeable under State law and punish-
able by imprisonment for more than one year; (B)
any act which is indictable under any of the following
provisions of title 18, United States Code: section 201
(relating to bribery), section 224 (relating to sports
bribery) * * * ; (C) any act which is indictable under
title 29, United States Code, section 186 (dealing with
restrictions on payments and loans to labor organiza-
tions...
18 U.S.C. § 1961(a)*
The Government’s contention that the pattern of Con-
gressional enactments on bribery reveals an intent to sub-
sume commercial bribery is completely erroneous, On the
contrary, the pattern reveals, as the Senate Judiciary Com-
mittee itself recognized in its report on S. 1437, the pro-
posed new federal criminal code, that present bribery law
subsumes only “the violation of the public servant’s duty”.
Senate Report 95-605, 95th Cong., 2nd Sess. 388 (1977).’
, © See also S. 1437 and H.R. 6869 and notes 7, 10 infra.
7 This distinction is made even more explicit in the most recent
draft of H.R. 6869; the House version of S. 1487. The House Sub-
committee on Criminal Justice has proposed a separate section for
“Bribery and Graft” (§ 1751) which concerns official corruption
IT ncinints seco BSA eared Yom 8
3. State Legislation
The Government contends that the pattern of state legis-
lation in bribery also indicates that bribery encompasses
commercial bribery. Resp. Br. at pp. 27-28. This conten-
tion is clearly erroneous.
In the appendix Petitioner has summarized the pattern
of “bribery” enactments in the states. In 1961 only thirteen
(13) states had commercial bribery statutes while all had
bribery statutes addressed to public officials. Furthermore,
the crime of commercial bribery was in 1961 and is now
generally considered significantly less heinous than that of
bribery. Of the thirteen states which had commercial brib-
ery statutes in 1961, twelve treated it less severely than
bribery of public officials. Today, thirty states have sepa-
rate commercial bribery statutes and of those only six treat
commercial bribery as severely as bribery of public officials.
In addition, the Model Penal Code considers commercial
and a separate subchapter for nongovernmental bribery which is
expressly limited to bribery of government contractors (§ 2551),
labor bribery (§ 2552) and sports bribery (§ 2553). The Sub-
committee’s version eliminates the Travel Act entirely and makes
no provision for commercial bribery. Thus, except for the incorpo-
ration of pre-existing, specific nongovernmental bribery sections
(i.e. labor, sports, and contractors) the Subcommittee’s version
defines bribery solely as bribery of government officials.
Working Draft of the Subcommittee on Criminal Justice, H.R.
6869, 96 Cong., Ist Sess. (Aug. 24, 1979) at pp. 53-54, 100-103.
* The appendix gathers the relevant statutory information. The
thirteen states with commercial bribery statutes in 1961 are Con-
necticut, Louisiana, Massachusetts, Michigan, Nebraska, New York,
North Carolina, Pennsylvania, Rhode Island, South Carolina, Ver-
mont, Virginia, and Wisconsin. Rhode Island is the only state that
treated commercial bribery and bribery identically.
We have taken the list of states from Note, Control of Non-
governmental Corruption by Criminal Legislation, 108 U. Pa. UL.
Rev. 848 (1960). The list there differs somewhat from the list in
Respondent's appendix. Our research confirms the University of
Pennsylvania note. For instance, the Government contends Ten-
nessee had a commercial bribery statute when, in fact, the statute
actually condemns only bribery of agents of common carriers.
10
bribery a misdemeanor in § 224.8 and bribery of public offi-
cials a felony in Article 240. A.L.I. Proposed Official Draft,
Model Penal Code § 224.8 and Article 240 (1974).
The enforcement of commercial bribery statutes also in-
dicates the failure of commercial bribery statutes to pene-
trate into the traditional conception of bribery. A district
court commented that the Pennsylvania commercial bribery
statute was “in a state of innocent desuetude ... with no
record of any conviction for violation of the law.” Conway
Import Co. v. United States, 311 F, Supp. 5, 16 (E.D.N.Y.
1969). A survey of commercial bribery statutes found that
there have been relatively few state criminal prosecutions
of commercial bribery, 1 A.L.R.2d 1350, 1357 (1965); Ac-
cord, Coffee, Beyond the Shut-Eyed Sentry: Toward a
Theoretical View of Corporate Misconduct and an Effective
Legal Response, 63 Virginia L. Rey. 1099, 1157 (1977).
The pattern of state legislation and enforcement there-
fore parallels that of federal legislation and the view of
the common law. Bribery in 1961, and today, means the
offer of money or of other benefits to persons holding
public office or charged with a public trust.
B. This Court’s Decision in United States vy. Nardello is Con-
sistent With a Definition of Bribery That Requires the
Corrupton of a Public Trust.
The Government contends that United States v. Nardello,
393 U.S. 286 (1969), substantiates its broad definition of
“bribery”. Resp. Br. at pp. 32-36. This contention ignores
both the language of the Nardello opinion and the rationale
which underlies it. In a footnote, the Nardello Court noted
that “[b]ribery has traditionally focussed upon corrupt
activities by public officials.” 393 U.S. at 293, n.11. More
importantly, the Nardello court indicated the nature of the
investigation to be undertaken when determining the scope
of the terms in the Travel Act, In its analysis of “extor-
ee
ay ete ne,
ee Se eres
11
tion”, the Nardello court rested its finding of Congressional
intent primarily upon an examination of federal and state
legislative treatment of the extortion/blackmail distinction.
393 U.S. at 289, 294-295.
The Government has misread this Court’s opinion in
United States v. Nardello, supra. The Court, in holding the
blackmail equivalent to extortion, ruled that the labels
attached by the various states to various crimes did not
determine whether they qualified as unlawful activity with-
in the meaning of the Travel Act. Rather, the substance
of those crimes would determine the sweep of the Act. The
Court then found that the crimes of extortion and blackmail
had long been assimilated into one offense.
The evidence on which this Court relied in finding tiie
assimilation of blackmail and extortion was substantial.
In footnote 12 of United States v. Nardello, supra, this
Court pointed out that the Pennsylvania cases treated ex- .
tortion and blackmail as synonymous. It also noted they
received synonymous treatment in the federal cade; 18
U.S.C. § 250, formerly entitled “Extortion by Informer”,
is today captioned “Blackmail” under 18 U.S.C. § 873.
Both when this Court decided the Nardello case and when
Congress enacted the Travel Act, all of the states had
enacted statutes which made extortion and blackmail cover
actions of private as well as public parties. Congress
thus intended that the Travel Act reach extortionate be-
havior of both public and private officials regardless of
the label a state chose to denominate the criminal offense.
Neither the states nor Congress, however, have assimi-
lated the crimes of bribery of a person holding a public
trust and commercial bribery. While it is true, as the
Government states, Resp. Br. at 21-22, that bribery origin-
ally was confined to those in judicial office, the concept
has evolved to include only those who hold a public trust,
e.g., public officials, jurors, electors. It has not expanded
to include the corruption of private individuals. See Point
A, supra.°
In the instant case, the Louisiana commercial bribery
statute and bribery as used in the Travel Act are synonym-
ous in label only; the rationale of Nardello thus requires
that the distinction that has traditionally been made in the
definition and usage of bribery and commercial bribery be
respected in interpreting the Travel Act.’® Petioner’s view
should prevail.
* Both the Second Cireuit, in United States v. Brecht, supra, and
Judge Rubin in dissent in the court below uphold Petitioner's
position on the scope of bribery. Both the Second Cireuit and
Judge Rubin relied on the paucity of state prohibitions of commer-
cial bribery in 1961. Judge Rubin also noted that, as recently as
1976, six states did not even mention the word “bribery” in defin-
ing the offense of “commercial bribery’. For additional support
of Petitioner's view, see point A above, the opinion in Brecht, and
the dissent in the court below.
*° It should be noted that the government’s argument as to arson
is equally invalid. The Government refers in its brief to the fact
that if arson under the Travel Act were limited to its common law
meaning, it would be restricted to cases in which a dwellinghous:
was burned. Resp. Br. at p. 23. What the Government fails to
reveal, however, is that the common law definition of arson had
been transformed by 1961 in all the states. By the time the Trave'
Act was passed, the statutes of all the states defined arson not oniy
as the burning of a dwellinghouse, but also as the burning of all
other buildings and movable property. In Arthur F. Curtis, The
Law of Arson (1936), the author states:
An avalanche of statutes has overwhelmed the common law
erime of arson and obliterated its limits so that its former
scope is interesting only in a historical sense. Where it was
originally confined to dwellings and nearby buildings, it is now
extended to all manner of structures including even bridges.
Where it formerly protected only the habitation of man, it now
covers personal property such as building material. household
goods, and even crops.
Td, at 2. Later, the author states:
The penal laws of the United States are now complete so that
all offenses are statutory, leaving no common law crimes.
Id. at 15. In 43 Journal of Criminal Law and Criminology 54,
under the legal aspects of arson, the author states:
To remedy inadequacies of the common law, the legislatures
of the various states gradually began to extend and broaden
oleate nine
13
C. The Legislative History of the Travel Act Demonstrates
That Congress Intended to Define Bribery With Reference
to Persons Charged With a Public Trust.
The Government has selectively quoted from the legisla-
tive history of the Travel Act in an attempt to suggest that
Congress contemplated encompassing commercial bribery
within the Act’s strictures. Resp. Br. at pp. 28-32. In fact
the legislative history supports equally well Petitioner’s
definition of bribery. In his statement before the House
Judiciary Committee, the Attorney General stated that the
bill was aimed at “the huge profits in liquor, narcotics,
prostitution, as well as the use of these funds for corrupting
public officials... .” Hearings on S. 1653-1658, S. 1665
Before the Senate Committee on the Judiciary, 87th Cong.,
1st Sess. at 2 (1961) (emphasis added). This limited aim
of 18 U.S.C. § 1952 has been confirmed both by this Court
in Rewis v. United States, 401 U.S. 808 (1971), and by the
Fourth Circuit in United States v. Hawthorne, 356 F.2d
740 (4th Cir.), cert. den., 384 U.S, 908 (1966).
Throughout the legislative process, the reference to
“bribery” recurred in conjunction with “official corruption”,
particularly by organized crime figures. Attorney General
Robert Kennedy described the Act as covering “the bribery
ana corruption of local officials”. Hearings on S. 1653-8
and S. 1665 Before the Senate Committee on the Judiciary
the definition of crime, until today it covers all kinds of build-
ings and structures even including the burning of one’s own
property, whereas at common law it was limited to the burning
of a dwellinghouse occupied by another person. -
While the legislative enactments in some states were adequate,
in other they fell short. The Model Arson Law was designed
not only to bring about uniformity but to correct the defi-
ciencies of the common law and the statutory law.
Thus in 1965 when arson was added as an unlawful activity,
within the purview of the Travel Act, the common law definition of
arson had been modified by all of the states. By 1961 arson had
been transformed from its early common law limitation in the
same manner that extortion had evolved as outlined above. This
was not the case with respect to bribery.
i4
(“Hearings”), 87th Cong. 1st Sess. at 11 (1961). When
the House of Representatives proposed an amendment to
the Bill which would have limited-the coverage of the bill to
extortion and bribery related to the specified crimes of
gambling, liquor, nareoties or prostitution, Deputy Attor-
ney General Byron R. White wrote in protest to the House
Judiciary Committee that the ainendment “removes from
the purview of the bill the bribery of state, local and federal
officials by the organized criminals unless we can prove
that the brjbery is directly attributable to [the four speci-
fied crimes.]” See also Hearings, supra, at 11, 13. 17, 108,
and passim.
Obviously, the Department of Justice understood bribery
to refer to “state, local and federal officials”. and not to
private persons. Its position is precisely consistent with
the position taken hy this Court in footnete 11 in the Nar-
dello case, quoted supra; and the position which Petitioner
has consistently asserted in the court below and now in
this Court.
The Government attempts to bridge the absence of any
legislative history in the Travel Act with respect to com-
mercial bribery by arguing that the legislative history of
18S U.S.C, § 224, involving sports bribery and passed one
year after the Travel Act, demonstrated an understanding
by Congress that the term “bribery” in the Travel Act
applied to private as well as official corruption, Resp. Br,
at pp. 26, 30.
“(T]he views of a subsequent Congress form a hazardous
basis for inferring the intent of an earlier one.” United
States v. Price, 361 U.S. 304, 313 (1960). Sueh post hoc leg-
islative materials relied on by the Government have uni-
formly been accorded little if any interpretive weight." See
United. States v. Wise, 370 U.S. 405, 414 (1962) ; Rainwater y.
"This post hoe reason is particularly hazardous in the instant
case because Congress has clearly separated commercial bribery
from sports bribery. See footnote 7, supra, pp. 8-9 and §§ 1751,
1753 of S. 1437.
I
15
United States, 356 U.S. 290, 593-94 (1958): United States v.
United Mine Workers, 330 U.S. 258, 282 (1947).
If there is any doubt as to the meaning of the word
“bribery” as used in Section 1952 of Title 18, U.S.C. that
doubt is clearly dispelled by a reference to the legislative
history of that statute and. this Court should not permit
that legislative history to he disregarded or obfuscated by
references to legislative acts of Congress one year, three
years, or ten years after the passage of the Travel Act.
Bribery as embodied in the Travel Act was the serious
offense that Congress perceived to be the corruption of
public officials by elements of organized crime. Its common
law definition remained in full foree and effect in 1961 as
distinguished from that of extortion and arson. The ruling
of the Seeond Cirenit in United States v. Brecht. supra,
and the dissenting opinion of Judge Rubin in the instant
‘ase, represent the correct construction of the Travel Act,
consistent not only with the intent of Congress but the
opinion of this Court in United States vy. Nardello, supra.
D. The Inclusion of Commercial Bribery Within the Ambit
of the Travel Act Would Be Inconsistent With the Pur-
poses Sought to Be Achieved by Congress,
The Government acknowledges only one of at least two
purposes that Congress sought to achieve through passage
of the Travel Act: the elimination or curtailment of the
activities of organized crime. Resp. Br. at pp. 36-41. Con-
gress also sought to aid local law enforcement officials not
to pre-empt them from the field and not to encroach upon
'* Likewise, the Government at page 30 of its brief refers to ¢)
legislative history of 18 U.S.C. § 224, by referring to a comment
of Senator Keating. A reading of that Statement, however, indi-
cates that it relates only indirectly to 18 U.S.C. § 1952, and reflects
at best a tentative personal opinion of Senator Keating.
'** A forthcoming Note exhaustively analyzes Congressional in.
tent in a discussion of this case. The analysis reinforces Petition-
er’s position. Note, Thy Scope of Bribery Under the. Travel Act,
Journal of Criminal Law & Criminology (forthcoming).
16
the power of the states to regulate economie and individual
behavior. The Travel Act was enacted to give material
assistance to the States in combatting pernicious under-
takings which cross state lines.” Senate Report No. 644,
87th Cong., Ist Sess. at 4 (1961) (quoted in United States
v. Nardello, 393 U.S. 286, 292, n.10); House Report No.
966, 87th Cong., Ist Sess. at 4 (1961) (cited in Nardello,
supra). Thus “Congress’ intent was to aid local law en-
forcement officials.” 393 U.S. at 293.
The Travel Act effected an unusual expansion of federal
jurisdiction in criminal law enforcement, in reaction to a
particular and compelling national concern: the influence
and spread of organized crime. It was enacted in response
to Attorney General Kennedy’s request for a package
of legislation to enable the Justice Department to act effec-
tively in that area. Hearings on S. 1653-1658, S. 1665,
Before the Senate Committee on the Judiciary, 87th Cong.,
1st Sess. 1-7, 16-17 (1961). The primary target of the Act
was gambling, and acts related to or arising from gambling.
Id. at 2, 16-17.
By incorporating violations of specified state criminal
laws as an element, the Travel Act inevitably affects the
delicate and historical federal-state balance in law enforee-
ment:
Given the ease with which citizens of our Nation are
able to travel and the existence of many multi-state
metropolitan areas, substantial amounts of criminal
activity, traditionally subject to state regulation, are
patronized by out of state customers. ... [A]n expan-
sive Travel Act would alter sensitive federal-state rela-
tionships, could overextend limited federal police re-
sources, and might well produce situations in which
the geographic origin of customers, a matter of happen-
stance, would transform relatively minor state offenses
into federal felonies.
Rewis v. United States, 401 U.S. 808, 812.
17
While Congress possesses broad but not unlimited power
to effect such a result, the Court has made clear that a
drastic restructuring of the federal and state roles should
not be assumed lightly. See United States v. Bass, 404 U.S.
336, 349; Rewis v. United States, supra. The Act must be
construed as narrowly as possible without undermining its
fundamental purpose: to control the national problem of
“organized crime” and organized criminals, whose modus
operandi often is to “reside in one state while operating
or managing illegal activities located in another.” Thus,
especially with respect to crimes not usually connected with
typical “organized crime” activities, only where “Congress
conveys its purpose clearly, [will it] be deemed to have
significantly changed” the halance of federal-state criminal
jurisdiction. United States v. Bass, 404 U.S. 336, 349. See
also Erlenbaugh v. United States, 409 U.S. 239, 247, n.21.
This Court has recently reaffirmed its concern about fed-
eral-state relations. In Rizzo v. Goode, 423 U.S. 362 (1976),
a federal injunction requiring significant alteration in police
procedures for handling civilian complaints was held in-
appropriate, in part, because of the “delicacy of the adjust-
ment to be preserved between the federal equitable power
and State administration of its own law.” 423 U.S. at 378
(quoting from Stefanelli v. Minard, 342 U.S. 117, 120 (1951)
and citing O’Shea v. Littleton, 414 U.S. 488, 500 (1974)).
The Respondent’s interpretation of bribery significantly
interferes with state power to regulate daily conduct. As
membership in organized crime is not an essential element
to a prosecution under the Travel Act, (see United States
v. Culbert, 435 U.S. 371 (1978)), an expansive reading of
bribery under the Travel Act would convert a myriad of
minor state and federal offenses into Travel Act prosecu-
tions because the offense or offenses involved may be some-
how argued to be generically a subspecies of bribery.
Not only would the federal statutes such as 18 U.S.C.
§ 215, and 29 U.S.C. § 186 be subsumed under the Travel
Act, but literally hundreds of state misdemeanors could,
18
at the discretion of the United States Attorney’s office,
be utilized to bring a federal travel prosecution. Thus,
for example, the giving of a bribe by a seller of lumber
to one who measures lumber—a penalty of fifty ($50) to
two hundred ($200) dollars under Massachusetts law (see
Mass. Regulation of Trade Law, Chapter 96 § 10 (1924))
—-would bring a five-year and/or ten thousand dollars
($10,000) fine under the Travel Act. Likewise, the giving
of a bribe to a chauffeur—a twenty-five dollar ($25)
penalty under Wisconsin Law, see Wis. Stat. Ann. Vol. 20
§ 134.05—would be subject to the Travel Act.
Thus, lesser included and related offenses, which under
the Government’s argument would fall generically under
the subject of bribery, could be utilized by the United States
Attorney’s office to trigger a Travel Act prosecution if any
interstate commerce were involved. To rely, as the Govern-
ment does, Resp. Br. at pp. 44-45, on prosecutorial disere-
tion and in the sentencing power of judges to cabin the
broad sweep of its interpretation of the Travel Act, mis-
conceives the Congressional concern for federal-state rela-
tions.
The holding of the Court of Appeals in the present case
tips the balance decidedly in favor of federal intervention
in areas of traditional state concern. It creates a federal
felony out of acts bearing no particular relevance to the
compelling national law enforcement interest, embodied in
the Travel Act, of protection against and control of orga-
nized crime."® It imposes a potential penalty of five years
imprisonment and a $10,000 fine for an offense which at
the time of the enactment of the Travel Act was not even
18 While this national interest clearly would be furthered by
inclusion within the scope of the statute of acts of traditional brib-
ery—i.e. “corrupt activities by public officials,” United States v.
Nardello, supra, 393 U.S. at 293, n.11—it wouid not be served sig-
nificantly by inclusion of commercial bribery. As the Second Cir-
cuit recognized, commercial “bribery,” unlike bribery of public
officials, “typically is not a feature of organized crime,” but rather
“is typically an establishment transgression.” United States v.
Brecht, supra, 540 F.2d at 50.
a een
19
a crime in thirty-seven states or the District of Columbia,
and which today remains a minor misdemeanor in most
state jurisdictions. There is no indication in either the
language or the legislative history of the Act that Congress
intended such a sweeping result. For purposes of the
Travel Act “bribery” should be defined as an offer of
money or other benefits to corrupt a person holding publie
office or charged with a public trust.
Il.
To Include Commercial Bribery Within the Ambit of
the Travel Act Violates the Petitioner’s Due Process
Right to Fair Notice as That Right is Variously Recog-
nized in the Judicial Doctrines of Lenity, Void-for-
Vagueness as Applied and the Rule of Bouie vy. City of
Columbia,
The Government’s argument that the rule of lenity does
not apply in the instant case rests entirely on the conten-
tion that there is little or no ambiguity in the meaning of
“bribery.” Resp. Br. at pp. 47-48. We have shown above,
however, that legal usage at both the state and federal
level was consonant with the definition of bribery advo-
cated here by Petitioner. See Point IA supra. The legis-
lative history of the Travel Act either supports Peti-
tioner’s position or is ambiguous. See point IC supra. A
thorough consideration of the criteria governing the ap-
plication of the rule of lenity must therefore be undertaken.
In each of the five recent cases cited by Respondent as
delineating the scope of the rule of lenity, no ambiguity
existed. In Scarborough v. United States, 431 U.S. 563
(1977) this Court stated:
We do not face the conflicting pull between the text
and the history that confronted us in Bass. In this
case, the history is unambiguous and the text consistent
with it.
20
431 U.S. at 577. Accord United States v. Culbert, 435 U.S.
371, 379 (1978) (“But here Congress has conveyed its
purpose clearly and we decline to manufacture ambiguity
where none exists.’”’); United States v. Naftalin, —— US.
, 60 L.Ed. 2d 624, 633 (1979) (words “plainly impose
meaning”) ; United States v. Batchelder, U.S. ——, 47
U.S.L.W. 4611 (June 4, 1979); Barrett v. United States,
423 U.S. 212, 217 (1976).
As ambiguity does exist in the instant case, the rule of
lenity, Huddleston v. United States, 415 U.S. 814, 831
(1974); Rewis v. United States, 401 U.S. 808, 812 (1971);
Bell v. United States, 349 U.S. 81, 83 (1955) should be ap-
plied. In Dumn v. United States, —— US. , 99 S.Ct.
2190 (1979), this Court articulated a constitutional basis
for the rule of lenity:
[t]his practice reflects not merely a convenient maxim
of statutory construction. Rather, it is rooted in fun-
damental principles of due process, which mandate that
no individual be forced to speculate, at peril of indict-
ment, whether his conduct is prohibited.
Dunn thus suggests an examination of two bodies of law:
the void-for-vagueness doctrine and the rule of Bowie v.
City of Columbia, 378 U.S, 347, 353-354 (1964), to deter-
mine when the interpretation of a statute is sufficiently
ambiguous to invoke the rule of lenity.
A. The void-for-vagueness doctrine
The void-for-vagueness doctrine rests on two elementary
principles integral to the broader concept of due process:
(i) that the law be plain and intelligible so that the citi-
zenry, and particularly those who may stray from the law,™
ean be charged with knowledge of the criminal consequences
™ Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 459-61
(1897).
21
of certain specified acts, United States v. L. Cohen Grocery
Co., 255 U.S. 81 (1921), Connally v. General Construction
Co., 269 U.S. 385 (1926); McBoyle v. United States, 283
U.S. 25, and Lanzetta v. New Jersey, 306 U.S. 451; and
(ii) that the criminal] justice system operate with the max-
imum degree of precision to achieve the even-handed ap-
plication of sanctions for acts specified by the legislature
to be crimes, rather than permitting judges or jurics to
punish behavior which they find personally offensive. United
States v. Reese, 92 U.S. 214 (1876) and Papachristou v.
City of Jacksonville, 405 U.S. 156 (1972).
The Fifth Circuit’s interpretation of “bribery” and its
application of the Travel Act to Petitioner denied him fair
notice in two ways. First, the interpretation at issue here
is novel and contrary to the legally accepted use of the
term; hence Petitioner was not given fair notice of the
erime. Second, the conflict between the circuits as to the
meaning of the Act demonstrates the uncertainty inherent
in the particular application of the Travel Act to Petitioner.
We address these points in turn.
This Court has previously acknowledged that in decid-
ing the intent of Congress, the judiciary must consider past
usage:
The opinion in the Nash case [Nash v. United States,
229 U.S. 373 (1913)], also drew support from the
suggestion that language in a criminal statute which
might otherwise appear indefinite may derive definite-
ness from past usage.
Winters v. New York, 333 U.S. 507, 537-538 (1948) (Frank-
furter dissenting).
Further, this Court in determining past usage, first looks
to the common law usage of the terms. In Weeds, Ince. v.
United States, 255 U.S. 109 (1921), Justice Pitney noted
that “the natural standard, according to which this provi-
sion of the act ought to be interpreted, is that ... adhered
22
to by the common law time out of mind.” 7d, at 112. Simi-
larly, in Lanzetta v. State of New Jersey, 306 U.S, 451
(1939), the Court struck down a statute on vagueness
grounds because the meaning of the term “gang” was not
derivable from common law or from any other source of
law. Id. at 454-5. Accord, Connally v. General Construction
Company, 269 U.S. 385, 391 (1926) (“the decisions of the
court upholding statutes as sufficiently certain rested upon
a conclusion that they employed words ... having...
a well settled common law meaning”); Champlin Refining
Co. v. Corporation Comm. of Oklahoma, 286 U.S. 210, 242-3
(1932) (“The general expressions employed here are not
known to the common law.”). While antiquity of common
law usage may not save a statute from condemnation under
the vagueness doctrine, Papachristou v. City of Jackson-
ville, 405 U.S. 156 (1972), interpreting a statute contrary
to the accepted legal usage only introduces indefiniteness
and uncertainty into its terms. Exactly this cireumstance
occurred in the instant ease and 18 U.S.C. § 1952 should
be ruled vague as applied or the rule of lenity should be
invoked and the familiar interpretation of bribery should
be accepted.
This Court has relied upon the existence of diver-
gent judicial decisions of state courts to show the difficulty,
if not the impossibility, of ascertaining the meaning of a
statute. See, e.g., United States v. Cohen Grocery Co.. 255
U.S. 81, 89-90 (1921) and Lanzetta v. New Jersey, 306 U.S.
444, 457 (1939). It has held that when two of this Court’s
own interpretations of the same statute differ, a convic-
tion under one of those interpretations could not be up-
held. See James v. United States, 366 U.S. 213 (1961).
While conflicts among circuits are not in themselves proof
of vagueness, the nature of the conflicts here among three
cireuits evidences so serious an ambiguity in the statute
as to require invocation of the rule of lenity.
nil
oe
23
B. A Broad Interpretation of the Travel Act When Applied to
the Defendant Amounts to an Ex Post Facto Law in Viola-
tion of the Due Proces Clause of the Fifth Amendment.
This Court has consistently found that judicial interpre-
tations which amount to ex post facto legislation are a
violation of the due process clause of the Fifth and Four-
teenth Amendments. See Marks vy. United States, 430 U.S.
188 (1977); Douglas v. Buder, 412 U.S. 430 (1973); Bowie
v. City of Columbia, 378 U.S. 347 (1963); and Pierce v.
United States, 314 U.S. 306 (1941)."
The due process violations in these cases arose not only
from the vague language of the statute itself, as in the
Lanzetta and Connally line of cases, but also from the
unforeseen and retroactive expansion of a statute due to
judicial construction. To a large degree, this aversion to
judicial expansion of criminal statutes rests upon the idea
that the specification of criminal offenses is the province
of the legislature and not of the court, see, e.g., United
States v. Bass, 404 U.S. 336, 348; United States v. Boston
and Maine Railroad, 380 U.S. 157, 160 (1965), that penal
statutes are to be interpreted with exactitude, United States
v. Campos-Serrano, 404 U.S. 293 (1971); Smith v. United
States, 360 U.S. 1 (1959); F.C.C. v. American Broadcast-
ing Co., 347 U.S. 284 (1954); and Pierce v. United States,
314 U.S. 306 (1941), and that penal statutes “will not be
read to create crimes . .. unless the purpose so to do is
plain.” United States v. Noveck, 271 U.S. 201, 204 (1926).
In Pierce, for example, this Court reversed the Petition-
er’s conviction and stated:
[J Judicial enlargement of a criminal Act by interpreta-
tion is at war with a fundamental concept of the
See also Splawn v. California, 431 U.S. 595, 601 (1976) where-
in this Court, citing Bouic, has stated: “the elements of a statutory
offense may not be so changed by judicial interpretation as to deny
to accused defendants fair warning of the crime prohibited.”
24
common law that crimes must be defined with appro-
priate definiteness,
Id, at 311.
In Bouie v. City of Columbia, supra, the Court reversed
the conviction of civil rights demonstrators who were
charged with violations of a South Carolina trespass law.
Although this Court recognized that the South Carolina
Supreme Court’s judicial construction of the criminal tres-
pass statute could be applied in all future cases, it was
impermissible, the Court found, to apply that construction
to the defendants in the very case establishing that con-
struction. For, the Court stated:
[A]n unforeseeable judicial enlargement of a criminal
statute, applied retroactively, operates precisely like
an ex post facto law, such as Art. I, $10, of the Con-
stitution forbids ... If a state legislature is barred
by the Ex Post Facto Clause from passing such a law,
it must follow that a State Supreme Court is barred
by the Due Process Clause from achieving precisely
the same result by judicial construction. Cf. Smith v.
Cahoon, 283 U.S. 553, 565. The fundamental principle
that ‘the required criminal law must have existed when
the conduct in issue occurred,’ Hall, General Principles
of Criminal Law (2d ed. 1960), at 58-59, must apply
to bar retroactive criminal prohibitions emanating
from courts as well as from legislatures. If a judicial
construction of a criminal statute is ‘unexpected and
indefensible by reference to the law which had been
expressed prior to the conduct at issue,’ it must not
be given retroactive effect.
378 U.S. at 353-54 (1974).
More recently, this Court in addressing an ex post facto
challenge to the retroactive application of a judicial inter-
pretation of a criminal statute found such application a
violation of the Due Process Clause. Marks v. United
States, 430 U.S. 188 (1977). Unlike Boute where the due
25
process violation arose from an expansive construction of
a previously narrowly defined statute, the due process vio-
lation in Marks arose because the statute “always used
sweeping language to describe that which (was) forbid-
den,” 430 U.S. at 195. Thus, a person is deprived of the
notice guaranteed by the due process clause either when
he is subject to an expansive interpretation of a previously
narrowly drawn statute as in Bowie or when he is subject
to a new construction given a statute whose language is
“sweeping” as in Marks.
In the instant case, the Petitioner was denied fair notice
consistent with due process in both senses. First, at com-
mon law, bribery pertained solely to bribery of public
officials. See point IA above. Therefore, the expansive
construction of the term “bribery” given by the Fifth Cir-
cuit in the instant case is impermissible under Bowie be-
cause it results in lack of notice to this Petitioner.
Second, to the degree that the term bribery is subject
to a broad or “sweeping” definition as given to it by the
lower court, that definition can not permissibly be applied
to Petitioner under Marks because he could not have had
fair notice from a statute, which has been subject to and
given multiple interpretations, as to which interpretation
would be relied upon. Compare United States v. Brecht.
540 F.2d 45 (2nd Cir. 1976) with United States v. Pom-
ponio, 511 F.2d 953 (4th Cir. 1975), cert. denied 423 U.S.
874 (1975).
{
26 27
CONCLUSION | Certificate of Service
The judgment of the Court of Appeals should be reversed. | I hereby certify that on September 27, 1979, I caused
; three copies of the foregoing Reply Brief in No. 78-959 to be
Respectfully submitted, served by first class mail, postage prepaid, upon Steven
M. Shapiro, Esq., Office of The Solicitor General, U.S.
Tra J. eaagysel Department of Justice, 10th and Constitution Avenue,
Kurzpan & Kurzpan, P vA, Washington, D.C. 20530.
700 Brickell Avenue, Suite 901
Miami, Florida 33131 Dated: New York, N. Y.
Lewis A. Kornnavser September 27, 1979
New York University School of Law Lot: Maas
40 Washington Square South |
New York, N.Y. 10012 Quinton C. Van Wynen
Rosert G. Hark Notary Public, State of New York
4616 Jefferson Highway No. 24-4087 465
Metairie, Louisiana Qualified iu Kings County
Commission Expires March 30,, 1981
Perrin C. BuTLER
144 Elk Place Plaza
New Orleans, Louisiana 70112
Leonarp B. Boupin
Rasinowirz, Boupty, STANDARD,
Krinsky & LIEBERMAN
30 East 42nd Street
New York, N.Y. 10017
ALBERT J. AHERN, JR. }
One Skyline Place !
5205 Leesburg Pike
Bailey’s Crossroad, Virginia 22041
SR i
¥
s
4
{
4
|
APPENDIX
This Appendix examines the treatment of bribery, ecom-
mercial bribery, sports bribery, extortion, and blackmail
in the fifty states, the District of Columbia, and under the
Model Penal Code. In particular, we compare the treat-
ment of bribery and commercial bribery as distinct crimes
to the assimilation of blackmail and extortion. In each
jurisdiction we list the statute and some indication of the
severity with which the jurisdiction treats the erime. When
possible we have indicated when the cited statute went
into effect. The sports bribery statutes are included
largely to facilitate comparison with Respondent’s appen-
dices.
The data presented may be briefly summarized. While
under the Model Penal Code and 45 of the 51 jurisdictions,
blackmail and extortion have been merged, 21 jurisdictions
do not even have a criminal statute governing commercial
bribery. Further, the Model Penal Code, and 24 of the 30
jurisdictions that have any commercial bribery statute,
treat bribery separately and more harshly than commer-
cial bribery. The rationale of Nardello therefore dictates
that the Travel Act be construed so as not to encompass
commercial bribery.
STATE BRIBERY OF COMMERCIAL SPORTS EXTORTION BLACKMAIL - j a
PUBLIC OFFICIALS BRIBERY ais BRIBERY | Nd OA
Alabama Ala. Code tit. iz, NONE Ala. Code tit.']3 Ala Code tit. Ala. Code. tit.
§ 13-5-30, 31 §] 3-4-9 13 8 13-3-3 13-3-2
Classificaticn:
Classification: offense Forgery and}f-.eud Classification: Classification
against public admin- ulent Practices offenses in- offenses invol-
istration. volving theft vina theft.
Penaltv: felony
Penalty: 2 to 10 (1947) Penalty: $1,000 Penalty: $1,000
years fine; 1 year fine; 1 year
imprisonment imprisonment
Alaska Alaska Stat. § 11-56 = Alaska Stat. NONE Alaska Stat. No separate
100
Classification: offense
against public adminis-
tration
Penalty: class B felony
(as of Jan. lst, 1980)
§ 11-46-660,
670.
§ 11-41-520
Classfication:
offense against
the person
Classification:
offense a-
against pro-
perty
Penalty: class
B felony
(as of Jan. lst, 1980)
Penalty: class
C felony
as of
(Jan. 1, 1980)
blackmail offense
r
STATE : F accep OF COMMERCIAL SPORTS EXTORTION BLACKMATI,
PUBLIC OFFICIAL BRIBERY _ <I A iar ag doe hes a ee IEA 1
Arizona Ariz. Rev. Stat. NONE, Ariz. Rev. Ariz. Rev. No separate
§ 2602 Stat. 8 2309 Stat. 88 1804, blackmail offense
2302 et seq.
Classification: Classification:
bribery organized crime Classification:
and fraud § 1804, theft;
Penalty: class 4 § 2302 orga-
felony Penalty: class nized crime and
4 felony fraud
Penalty: felony,
with class
varving with
circumstances
Arkansas Ark. Stat. Ann. NONE Ark. Stat. Ark. Stat. Ann,
§ 41-2703
Classification:
offense against
Public Adminis-
tration (corrupt
influence)
Penalty: class
D felony
Ann. § 41- 3288
Classification:
offense against
public order
(gambling)
Penalty: class
D felony
No separate
§ 41-2202, 2203 blackmail offense
Classification:
offense against
public order
(theft)
Penalty: varies
with amount
STATE BRIBERY OF COMMERCIAL
__ PUBLIC OFFICIALS BRIBERY
Califormia Cal. Penal Code 88 NONE
67, 6735 , 68,
65) 86, 92, ‘32
Classification:
crime, by and
against the exe-
cutive power (67,
67-5 , 68); Crimes
against the Legis-
lative Power ({85,
86); crimes a-
against Public
Justice (92, 93)
Penalty: 2,3, or 4
disqualification from
office (67,68); varia-
bie (67.5 .})4'\2. 3 oF
4 years (85, 86, 92,
93)
SPORTS
BRIBERY
Cal. Penal
Code, 8 337
yb. €. @ ant @
Classification:
crimes against
the person
(Gaming)
Penalty: felony
impriscnment or
up to $5,000.00
fine, or both
(1921)
EXTORTION BLACKMAIL -
Cal.Penal
: No separate
Coce 8 518
blackmail
offense
Classification:
crimes against
property
(extortion)
Penalty: 2, 3
or 4 years
3a
fc
STATE
Colorado
Connecticut
La
BRIBERY OF
PUBLIC OFFICIAL
Colo. Rev. Stat.
§ 18-8-302
Classification: ¢
of fenses-Governmental
Operation
Penalty: Class 3
felony
Conn. Gen. Stat. Ann.
88 53a-147, 148 (West)
Classification: bribery
offenses against the
Administration of
Justice, and related
offenses
Penalty:
class D felony
COMMERCIAL
_ BRIBERY
Colo, Rev.
Stat. 8 18-5
40]
Classification:
offenses invol-
ving fraud
Penalty: class
5 felony
Conn. Gen. Stat.
Ann.98 53a-160,
161 (West)
Classification:
(same as Public
official bribery)
Penalty: class A
misdemeanor
SPORTS
BRIBERY
Col',' Revi BEat.
§ 18-5-403
Classification:
involving fraud
aon
class
Penalty:
5 felony
(Colo. has
had a sports
bribery law
Since 1947)
Conn. Gen.
Stat. Ann.
§§53a-162,
163, 164 West)
Classification:
same as public
official bri
bery
Penalty: Class
D felony (162);
class A mis.
(163, 164)
EXTORT LON BLACKMALTL,
Colo. Rev. No separate
Stat. 8 18-3- blackmai])
207;18-15- offense
AOL; 302.
107
105,
Classification:
offenses against
the person
(18-3-207);
offenses-makina,
financing, or
colection of
loans (18,15-101,
et seq.)
No separate
blackmail offense
Conn.Gen,. Stat.
Ann § 119 (5)
(West)
Classification:
Larceny, Robbery
& related offenses
Penalty: class C
felony
STATE
Delaware
BRIBERY OF
PUBLIC OFFICIAL
Del. Coge:;: -tit. ain
§$1201, 1203
Classification:
offenses against
Public Administration
Penalty: class D
felony
COMMERCIAL
BRIBERY
Del. Cuae. tit.
11 88 881, 882
Classification:
offenses in-
volving pro-
perty
Penalty: class
A misdemeanor
(recent)
?
SPORTS
BRIBERY
Same as commer-
cial bribery;
also Del.
Code tit. 28 88
701, 702, 703,
704:
Classification:
sports & amuse-
ments: influen-
cing results of
sporting events
by bribery and
other unlawful
means (28 8 70]
et seq.)
Penalty: not more
then $3,000.00
Or not more than
3 years or both
(1947)
PXTORVTON
Del. Code.
Cet. Res
® 846
Classification:
offenses in-
volving pro-
pertyv
Penalty:
class D felony
PLACKMATI, 5 a
No separate
blackmai]
offense
6a
STATE BRIBERY OF PUBLIC COMMERCIAL SPORTS ~-XTORT ION Br ACKMA TL.
Henn ib roksan A RS ee |; BRIBERY
District
of D.C. Code 822-70) None D.C. Code D.C. Code D.C. Code
$22-)5)3 § 22-2306 g22-2305
Columbia
Penalty: Not more (intent to (includes
than $500 or 3 commit extortion extortion)
years or both by communication
of illegal threats Penalty:
or commands) Not more than
5 years or
$1000.00
(enacted ]90)) (enacted 1901) or both
The District of Columbia
does not distinguish
between extortion and
blackmail by the position
of the actor
OTATH,
Florida
Georgia
BRIBERY OF
PUBLIC OFFTCIALS
Fla. Stat.
Ann. §& 838-015
(west)
Classification:
bribery, misuse
of public office
Penalty: 3rd
degree felony
Ga. Code Ann.
§ 26-2301
Classification:
abuse of Govern-
mental Office
Penalty: up to
$5,000 fine or
1-20 years or
both
COMMERC TAL,
BRIBERY
NONE
SPORTS
BRIBERY
Fla. Stat. Ann.
§ #3812 (West)
Classification:
bribery; misuse
of nublic office
Penalty: 3rd de-
qree felony
Ga. Code Ann.
§ 26-2711
Classification:
gambling related
offenses
Penalty: $1,000
to $5,000 fine
or: 2° %@ 3
years or both
(1 968)
MATORT TON
Fla. Stat.
Ann. & 812
Classification:
larceny, robbery,
& related crimes
Penalty: variable
Ga. Code Ann.
§ 26-1804
Classification:
Theft
Penalty: 1-10
years
(See also 886
89-9909 and
40-9901 for ex-
tortion by a
public official)
BLACKMATI,
No separate
blackma))
offense
No separate
blackmail
offense
, 8a
STATE
Hawaii
BRIBERY OF
_PUBLIC OFFICIAL _
Haw. Rev. Stat.
§ 710-1040
Classification:
offense against
public adminis-
tration
Penalty: class
C felony
Idaho
Idaho Code
$8 18-1352
Classification:
bribery and
corruption
Penalty: felony
COMMERC TAL
___BRIBERY
Rev.
8 7N8-
Haw.
Stat.
880
Classification:
offense against
propert rights
Penalty: misde-
ete eeegeee > + en 2 --
SPORTS
BRIBERY __
Rev.
§ 708-
Haw.
Stat.
881
Classification:
against property
rights
Penalty: misde-
EXTORTION
Haw. Rev.
7908-800,
Classification:
offense against
proerty riahts
Penalty: va-
BLACKMATI,
oO separate
N
830(3) (5) blackmail
statute
meanor meanor (1947) riable
(post-1961)
NONE Idaho Code No separate
NONE § 18-2801 to blackmail
2808
Classification:
extortion
Penalty: $5,000
or 5 years or
both
statute
STATE: BRIBERY OF COMMERC TAL SPORTS EXTORT TON KLACKMATI, * 9a
PUBLIC OFFICIAL BRIBERY —_ BRIBERY
[)}inois Till. Ann. Stat. T11. Ann. [lz Ann. Stat. [ll. Ann, No separate
ch-38 8 33-1 Stat. ch 38 6 29-1, 2 Stat. ch 38 blackmail
(Smith-Hurd) § 29A-1,2,3 (Smith-Wurd) R 16-1 (c) offense
(Smith=Hurd)
Classification: Classification: Classification:
offense affecting Classification: same as commer- Theft and rela-
governmental offense affec- cial bribery ted offenses
functions ting public
health, safety, Penalty: class
Penalty: Class and decency 4 felony
4 felony
Penalty: $500 [became law
fine (business in 1921]
of fense)
[became law
1969]
ed
10a
BRIBERY OF
PUBLIC OFFICTAL
STATE
Indiana Ann. Ine. Code
§ 35-44-1-1(1) (2)
(West)
Classification:
offense against
public administration
Penalty: class C
felony (910,000 or
5 years)
Iowa Code Ann.
§ 722.1 (West)
Iowa
Classification:
bribery & corruption
Penalty:
class D felony
COMMERCIAL
____ BRIBERY.
NONE
Iowa Code Ann.
§ 722.10 (West)
Classification:
bribery & corrup-
tion
Penalty: class D
felony
fadded by acts
(+1978, effecttive
Jan. lst, 1979]
SPORTS
BRIBERY _
Ann. Ind. Code
8 35-44-1-1 (5)
Classification:
same as pu-
blic official
bribery
Penalty: same
as public
official bribery
(orginally passed
in 1947 amended
1976)
Towa Code Ann.
- vanes
Classification:
bribery & corrup-
tion
Penalty:
aggravated misde-
meanor
[1953 Towa Acts]
EXTORT TON BLACKMATI,
Ann. Ind. No separate
Code 8 35-45 blackmail
2-] offense
Classification:
offenses against
Public Health,
Order, & Decency
Penalty: variable
Iowa Code Ann,
§ 711.4
No separate
blackmail
statute
Classification:
robbery & extortion
Penalty: class D
felony
TATE
, . >
ANSGAS
BRIBERY OF
PUBLIC OFFICIALS
Kan. Stat. Ann
® 21-3901
Classification:
affecting public
trusts
Penalty: class
D felony and for
feiture of office
and disqualification
COMMERC IAT,
BRIBERY
Kan. Stat.
Ann. & 21-4405
Classification:
crimes affecting
business
Penalty:
class E felony
[became law
in 1969]
SPORTS
_ BRIBERY
Kan. Stat.
Ann. §& 21-4406
Classification:
affecting
business
Penalty: class
BE felony
[became law
in 1969]
EXTORTION
Kan. Stat.
Ann, & 21-3701
(1) (ec); 21-3902
(b)
Classification:
crime against
property (3701)
crime affecting
public trust
(3902)
Penalty: variable
(3701); class a
misdemeanor plus
forfeit of office
(3902)
ite
BRLACKMATI,
Kan. Stat.
Ann. 8 21-34278
Classification:
crimes against
persons
Penalty: class
E felony
12a
STATE BRIBERY OF COMMERCIAL SPORTS EXTORTION BLACKMAIL
PUBLIC OFFICIAL BRIBERY BRIBERY 13
Kentucky Ky. Rev. Stat. Ky. Rev. Stat. Ky. Re. Stat. Ky. Rev. Stat. No separate
§ 521.020 (Bobbs- § 518.020 § 518.030 § 514,680 blackmail
merrill) (Bobbs~-Merrill) offense
Classification: Classification:
Classification: Classification: same as the theft and related
bribery and corrupt Miscellaneous commercial bribery offenses
influences crimes business
Penalty: class A Penalty: variable
Penalty: class Penalty: class A misdemeanor
D felony misdemeanor
Ky law (1974(?)) (Ky law 1952)
Louisiana La. Rev. Stat. Ann. La. Rev. Stat. La. Rev. Stat. La. Rev, Stat. No separate
§ 14:118 (West) Ann. 14:73 Ann. 14:118.1 Ann. 14-66 blackmail
(West) (West) offense
Classification:
offense against
organized overn-
ment
Penalty: $1,000
fine; 4 years in
prison or both
Classification:
offense against
property
Penalty: $500.00
fine 1 year in
prison or both
(passed, 1920)
Classification:
offense affecting
organized govern-
ment
Penalty: $10,00
fine; 10 years
in prison
(passed, 1942)
Classification:
offense against
property
Penalty:
variable
—_——- —-
13a
STATE BRIBERY OF COMMERCIAL SPORTS EXTORTION BLACKMAIL
i PUBLIC OFFICIAL BRIBERY BRIBERY
Maine 17-A Me. Rev. 17-A Me. Rev. 17-A Me. Rev. 17-A Me. Rev, No separate
State. Ann. 8 602 Stat. Ann. Stat. Ann. §$ 904 Stat. Ann, 8&8 blackmail
(West) § 904 (West) (West) 351, 355, (West) offense
Classification: Classification: Classification: Classification:
bribery & corrupt fraud theft Theft
practices
Penalty: class Penalty: class Penalty: variable
Penalty: class C crime D crime D crime
(passed 1976) (passed 1976)
Maryland MD. Crimes & Pun- NONE MD. Crimes MD. Crimes and No separate
ishments Code Ann.
art. 27, 8 23
Classification:
bribery
Penalty: $100.00
to $5,000.00
fine; 2 to 12 years
in prison; or both;
disenfranchisement;
disqualification
from office-holding
and punishments
Code Ann.
Seti-at. Bees
25
Classification:
bribery
Penalty: $100.00
to $5,00.00 fine;
6 months to 3 years
in prison, or both
(1947)
punishments code blackmail
Ann. art. 2786561 offense
562, 562 A
Classification:
Threats and
threatening
letters
STATE
14a
BRIBERY OF
PUBLIC OFFICIAL
Massachusetts Mass. Gen. Laws
Michigan
Ann. ch 268A 8
2 (West)
Classification:
Conduct of Public
officials and
employees
Penalty: maximum
$5,000 fine;
3 or 4 years
in prison;
disqualification
from office
COMMERCTAL
BRIBERY
Mass. Gen. Laws
, S
Ann.ch. 271 8
39 (West)
Classification:
crime against
public policy
Penalty:maximum
$500.00 fine;
l year in prison
or both
(except for
hiring agents)
Mich. Comp. Laws
Ann. §8750 117-118
Classification:
bribery and corruption
Maximum Penalty:
$5,000 fine;
10 years in prison
(felony)
Mich. Comp. Laws
Ann. 8 750 125
Classification:
bribery & corrup-
tion
Maximum Penalty:
$500 fine;
1 year in jail
(misdemeanor)
(paassed, 1905)
SPORTS
BRIBERY
Mass. Gen. Laws
Ann. ch. 271,
§ 39A (West)
Classification:
crime against
Public Policy
Maximum Penalty:
1,000 fine;
2 years in prison
or both
EXTORTION BLACKMATL
Mass. Gen. Laws
Ann. ch. £65 No separate
BS 25 blackmail
offense
Classification:
crimes against
the person
Maximum Penalty:
$5,000 fine;
15 years in prison
Mich. Comp. Laws
Ann. 8 759.124
Classification:
bribery and corrup-
tion
Penalty: felony
(passed, 1921)
Mich, Comp. Laws No separ@®
Ann. 8 750-213, 214 blackmail
statute,
Classification: but §750.
extortion 214 applies
to a pubk
Maximum Penalty: official
$10,000 fine: only
20 years in prison
(felony)
(passed, 1931) (passed
1931)
STATE BRIBERY OF COMMERCIAL SPORTS EXTORTION BLACKMALI, 1 5 a
PUBLIC OFFICIAL BRIBERY BRIBERY | \ ean
Minnesota Minn. Stat. Ann. NONE Minn. Stat. Minn. Stat. No separate
609.42 (West) Ann. 609,825 Ann, 609.27 blackmail
(West) (West) offense
Classification:
crime affecting public Classification: Classification:
officer or employee miscellaneous crimes of compul-
crimes sion
Penalty: $10,000
fine; 10 years, or ‘) Penalty: $5,000 ~° Penalty: variable
both; forfeiture of fine; 5 years in
office, disqualifica- prison, or both
tion from office
(passed 1947)
Mississipi Miss. Code. Ann. NONE, except Miss, Code Ann. Miss, Code Ann, Miss, Code
§ 97-11-11, §97-11-11 8 97-29-18 § 97-11-33 age § 97-
Classification: offenses reaches private Classifications: Classification:
by public official trustees. crimes against offenses by Public’ Class:
public morals officials against the
Maximum Penalty: person
$1,000 fine; 10 years Penalty! 6 months Penalty: $300 fine;
in prison (ll); to 5 years in pri. 3 months in jail; Penalty:
$5,000 fine; 10 years $100 to $1,000 fine; remoyal from office 5 years
in prison; forfeit; x both (1954) in prison
disqualification (13) (see also 6 97-19
13)
(passed 1857)
16a
Ann. 845-7-101
Classification:
offense against
public administration
Penalty: 10 years;
disqualification from
office
Ann. § 45-8-24
Classification:
offense against
public order
Penaltv: max.
$5,00 fine; 10
years in prison,
or both
(post - 1961)
Ann. 8 45-5-203
Classification:
offense against
the person
Max. Penalty:
10 years
(see also § 45-
8-213)
STATE BRIBERY OF COMMERCTAL SPORTS EXTORTION BLACKMAIL
PUBLIC _ OFFICIAL BRIBERY _BRIBERY a BUI ras
Missouri Mo. Ann. State § 576, Mo. Ann Stat. Mo. Ann. Stat. Mo. Ann. Stat. No separate
010, 020 S 570.. 150 S 570.155 § 570.010 (4) blackmail
(Vernon) (Vernon) (Vernon) 030 (Vernon) offense
Classification: Classification: Classification: Classification:
offense affecting govern- stealing and stealing and stealing etc.
ment related offenses related offenses
Penalty: D felony Penalty: class A Penalty: felony; Penalty:
misdemeanor 19 years; $10,000 variable
(new) (1921)
Montana Mont. Rev. Codes NONE Mont. Rev. Codes Mont. Rev. Codes No separate
blackmail
offense
STATE BRIBERY OF COMMERCTAL SPORT MXTORTTON ™LACKMATL
PUBLIC OFFICIALS BRIBERY BRIBERY
Nebraska Neb. Rev. Stat. Neb. Rev. Stat. Neb. Rev. Stat. Neb. Rev. Stat. No separate
§28-917 (supp. 1978) 8 28-613 §28-614 § 28-513 blackmail
(Supp. 1978) (Supp. 1978) (Supp. 1978) offense
Classification: offense
involving integrity. of Classification: Classification: Classification:
government offenses in- offenses invol- offenses gainst
voling fraud ving fraud properly
Penalty: class IV felony
Penalty: class Penalty: class Penalty:
I misdemeanor II misdemeanor variable
(Neb. had a Comm, (Neb. passed a
bribery law in sp. bribery law
1907) in 1947)
Nevada Nev. Rev. Stat. 88 NONE Nev. Rev. Stat.88 Nev. Rev. Stat.88 Note that
197.010, 020, 030 207.290 205.320 Nev. has a
199.010, 020, 030 statute on
Classification: Classification:crime extortion
Classification: crimes miscellaneous crimes against property by a public
by and against the officer
executive Power Penalty: felony; Penalty: 1 to 10 (§197.170)
(197); crimes against 1 to 6 years years; $5,090 and on
public justice
Penalty: $5,000 fine;
10 years in prison
$5,000 fine;
or both
fine, or both
(passed, 1965)
extortion
via letters
(8 207.180)
17a
2
18a
STATE BRIBERY OF COMMERCIAL SPORTS EXTORTION BLACKMATI,
PUBLIC OFFICIAL eee, ti) Se : Nd oe hae ee Serer
New N.H. Rev. Stat. Ann N.H. Rev. Stat. N.H. Rev. N.H. Rev. Stat. No separate
Hamphire § 640:2 Ann. 8638:7 Stat. Ann Ann § 637:1,5 blackmail
8 638:8 statute
Classification: Classification:
corrupt practices fraud Classification: Classification:
fraud theft
Penalty: class B Penalty: misde-
felony meanor Penaltyq class Penalty:
: B felony variable
(1971) (1971)
New N.J. Stat. Ann. N.J. Stat. Ann. N.J. Stat. Ann N,J. Stat. Ann. No separate
Jersey §2C:27-2 (West) §2C:21-10 (West) §2C:21-11 (West) §2C:202 ,5 blackmail
offense'
Classification:
against public
administration
Penalty: variable
offense
Classification:
forgery and
fraudulent
practices
Penalty: variable
(NEW)
Classification:
forgery and
fraudulent
practices
Penalty:
variable
(N.J. had a
sports bribery
law 1945)
Classification:
theft and related
offenses
Penalty: variable
19a
STATE BRIBERY OF COMMF:RCTAL SPORTS EXTORTION BLACKMATL,
Tye PUBLIC OFFICIALS BRIBERY BRIBERY mr .
New N.M. Stat. Ann. NONE N.M. Stat. Ann N.M. Stat. Ann. No separate
Mexico §40A-24-1,2 §40A-19-13 §40A-16-8 blackmail
offense
Classification: Classification: Classification:
bribery gambling larceny
Penalty: 3rd degree Penalty: 4th deaqree Penalty: 3rd
felony plus forfeit felony deqree felony
of office (1963)
New N.Y. Penal. Law N.Y. Penal. Law N.Y. Penal Law N,Y. Penal Law No separate
York § 200.00, .04, .10, 8180.00, .03, 05, 8180.35, .40 8155.05 (e) blackm il
(McKinney) 08, (McKinney) (McKinney) offense
Classification:
offenses against
public administration
Penalty: class D felony
(in most cases)
Classification:
offenses involving
fraud
Penalty: misde-
meanor
(1905)
Classification:
offenses
involving fraud
Penalty: class D
felony
(1921)
Classification:
offenses invol-
ving theft
Penalty: variable
20a
STATE BRIBERY OF COMMERCIAL SPORTS EXTORTION BLACKMAIL
PUBLIC OFFICIALS BRIBERY BRIBERY ga NE ne ee
North
Carolina N.C. Gen. Stat. N.C. Gen. Stat. N.C. Gen. Stat. N.C. Gen. Stat. N.C. Gen. Stat
§14-217, 218, $14-353 §14-373, 374, §14-118.4 $14-118
219 sFe4 are
Classification: Classification: Classification: Classification: Classification:
offenses against general police general police frauds frauds
public justice regulations regulations
Penalty: felony, Penalty: misde- Penalty: felony; Penalty: felony Penalty: misde
variable meanor, $500 1 to 10 years meanor
punishment depending fine; 6 months variable fine; NOTE: North Carolina
on status of felony in jail, or does Not distinguish
both (See also 8 between extortion
14-380.1) and blackmail on
(1913) (1921) the basis of the
perpetrator
North N.D. Cent. Code N.D. Cent. Code N.D. Cent. Code N,D. Cent. Code No separate
Dakota §12.1-12-01 §812.1-12-08 §12.1-12-07 $12.1-23-01, 902 blackmail
(2) offense
Classification:
bribery, unlawful
influence of
public servants
Penalty: class C
felony
Classification:
bribery unlawful
influence of
public bribery
Penalty: Class
C felony
(1973)
Classification:
bribery unlawful
influence of
public bribery
Penalty: Class
C felony
(1973)
Classification:
theft
Penalty: variabie
STATE BRIBERY OF COMMERCIAL SPORTS EXTORTION BLACKMAIL 2 1 a
sy. PUBLIC OFFICIALS BRIBERY BRIBERY
OHIO Ohio Rev. Code NONE Ohio Rev. Code Ohio Rev. Code No separate
Ann. 82921.02 Ann. 82915. 06 Ann, 82905.11 blackmail
(page) (Page) offense
Classification: Classification: Classification:
offenses against gambling Kidnapping
justice and public ana Extortion
administration Penalty: 4th
degree Penalty: 3rd degree
Penalty: 3rd degree felony felony
felony and
disqualification from
office
Oklahoma Okla. Stat. Ann. NONE Okla Stat. Ann. Okla Stat. Ann Okla Stat,
tit. 21 §381,. 382 tit.21, 8 399, 400 tit. 2) 8§1481-4 Ann. tit.
(West) 21 § 1488
Classification:
Crimes -against
public justice
Classification:
, R Classificat®
crime against public
Classification: crime against
justice crime against property
Penalty: 5 years or property
Penalty: Bribery-5 years $3,000 and year Penalty: 5
or $3,000 fine and in prison or Penalty; up to 5 years ey
2 years, Bribed official $3,000. and l years $10,000
10 years or $5,000 fine year in jail for or ibis
and 1 year plus forfeit bribed person. NOTE: § 1484, re-
and disqualification hintnel tee deunee kab
(1947) by a public official
22a
STATE BRIBERY OF COMMERCIAL SPORTS EXTORTION BLACKMATL
vem PUBLIC OFFICIALS BRIBERY BRIBERY aie ‘
Oregon Or. Rev. Stat. NONF Or. Rev. Stat. Or. Rev. Stat. No separate
6 162.015, .025. 6§165.085, 090 §164.075 blackmail
offense
Classification: Classification: Classification:
offense against fraud and offense against
state and public deception property
justice
Penalty: class Penalty: class
Penalty: Class C felony B felony
B felony (1971)
Penn- 18 Pa. Cons. Stat. 18 Pa. Const 18 Pa. Cons. 18 Pa. Cons. No separate
sylvania Ann. 84701 Stat. Ann. Stat. Ann. Stat. Ann. blackmail
(Purdon) 84108 64109 83923 offense
(Purdon) (Purdon) (Purdon)
Classification:
Public Administration
crime
Penalty: 3rd degree
felony
Classification:
forgery and fraud
Penalty: 2nd
degree misde-
meanor
(Pa. has had
a comm. bribery
state since 1969)
Classification:
forgery and fraud
Classification:
theft and related
offenses
Penalty; lst degree Penalty: variable
misdemeanot
(Pa. has had
a sports bribery
state since 1939)
23a
STATE BRIBERY OF COMMERCIAL SPORTS EXTORTION BLACKMAIL
PUBLIC OFFICIAL BRIBERY BRIBERY
rhode RI. Gen. Laws RI. Gen. Laws RI. Gen. Laws RI. Gen. Laws RI. Gen. Laws
Island §11-7-3,4 §11-7-3, 4 §11-7-9 §11-42-1 §11-42-2
Classification: Classification: Classification: Classification: Classificatior
bribery bribery bribery threats and threats and
extortion extortion
Penalty: Penalty: misde- Penalty:
misdemeanor 1] year meanor-l year $1,000 fine; Penalty: Penalty:
or $1,000 fine; or $1,000 Or 2 years 1 year or 15 years
(Note that bribery or both $1,000.00 or $5,000
of a juror is (1881) or both
punishable by a (1950)
7 year term)
South S.C. Code S.C. Code S.C, Code S.C. Code No separate
Carolina §16-9-210, 220 §16-17-540 §16-17-550 §16-17-640 offense
Classification: Classification: Classification; Classification;
offenses against
public justice
Penalty: 5 years at
hard labor or $3,000
fine and 1 year in
jail (briber); 10
years hard labor or
$5,000 fine and
2 years in jail (bribed)
offense against
public policy
Penalty: $500
fine or 1 year
or both
(1905)
offense against
public policy
Penalty:
$10,000 or 10
years or both
(1962)
offenses against
public policy
Penalty;
10 vears
$5,000 or both
24a
COMMERCIAL
STATE BRIBERY OF SPORTS EXTORTION BLACKMAIL
PUBLIC OFFICIALS BRIBERY BRIBERY
South S.D. Complied NONE NONE S.D. Complied No separate
Dakota Laws Ann, Laws Ann. blackmail
S 22-12A-4,5,6,7 §22-30A-4 offense
Classification: Classification:
Improperities theft
and bribery in
public office Penalty: variable.
(See also
Penalty: class $22-12A 8,9
4 felony-
plus disqualification
in some circumstances
Tennessee Tenn. Code Ann NONE Tenn. Code Tenn. Code No separate
§ 39-801-802 Ann. § 39-824 Ann § 4301 blackmail
offense
Classification: (But see Classification: Classification: ©
bribery, embracery,
etc.
Penalty: bribery--2
to 20 years; bribed
--3 to 21 years plus
disqualification
bribery, embracery,
etc.
$39-821, 822
the bribery
of the agent of
of common carrier)
misdemeanor
(1909)
Penalty: 1 to 5
years, $10,000
fine
(1921)
threats and
extortion
Penalty: 2-5 years
STATE
BRIBERY OF
PUBLIC OFFICIALS
COMMERCIAL
BRIBERY
SPORTS
BRIBERY
EXTORTION
BLACKMAIL
25a
Texas
Tx. Penal. Code
tit. 8, $36.02
(Vernon)
Classification:
offense against
public administra-
tion
Penalty: 3rd degree
felony (briber) ;
2nd degree felony
plus forfeit
or office (bribed)
Tex. Penal
Come, ‘tit, 7.
§ 32.43
(Vernon)
Classification:
fraud
Penalty: 3rd
degree felony
(NEW)
Tex. Penal
Code tit. 7,
§ 32.44,
(Vernon)
Classification:
theft
Penalty: 3rd
dgree felony
(Texas has had
a sports
bribery law
Since 1947)
Tex, Penal
code: tit..7
Bw S208 ,. se;
03. (Vernon)
Classification:
theft
No separate
blackmail
offense
Penalty: variable
Utah
Utah Code Ann,
8 76-8-103,105
Classification:
offense against
government
Penalty: 3rd degree
felony (briber)
class B
misdemeanor (bribal)
Utah Code Ann.
§ 76-6-508
Classification;
offense against
property
Penalty: class
B misdemeanor
(1973)
Utah Code Ann.
§76-6-514
Classification:
offense against
property
Penalty:
3rd degree felony
(1973)
Utah Code Ann.
S 76-6-406
Classification;
offense against
property
Penalty:
variable
No separate
blackmail
offense
26a
STATE BRIBERY OF COMMERCIAL SPORTS EXTORTION BLACKMAIL
PUBLIC OFFICIALS BRIBERY BRIBERY
Vermont Vt. Stat. Ann. Vt. Stat. Ann. NONE VT. Stat. Ann. No separate
tit. 13, 688 1101, tit. 13 § 1106 tit. 13 § 1701 blackmail
1102, etatute
Classification: Classification:
Classification: bribery extortion and
bribery threats
Penalty: 1 year
Penalty: 5 years or or $100 to Penalty: three
$390.00 (briber) $1,000 fine or years or $500
10 years or $1,000 both
plus forfeit and (1904)
disqualification
(bribal)
Virginia Va. Code 8 18.2- Va. Code § 18.2- Va. Code § 18.2- Va. Code § 18.2- No separate
438, 439
Classification:
crimes against
the administration
of justice
Penalty: class 4
felony (plus
forfeit
and disqualification
bribed official)
444
Classification:
crimes against
the administration
of justice
Penalty: class 3
misdemeanor
(NEW) ?
442, 443
Classification:
crimes against
the administration
of justice
Penalty: class
5 felony
(1960)
470, § 18.2-59 offense
Classification:
470 --
crimes against
the adininstration of
justice
59--crimes against
the person
Penalty: 470--
class 4 misdemeanor
59- class 5 felony
J”
X
STATE BRIRERY OF ‘COMMERCIAL SPORTS EXTORTION BLACKMAIL 27a
PUBLIC OFFICIALS BRIBERY _ _BRIBERY_ ree oe
Washington Wash. Rev. Code. Wash. Rev. Code Wash. Rev. Code Wash. Rev. Code No separate
Ann. 8 9A.68 Ann. §49.44.060 Ann. 8 67.04 Ann. §89A.56.110, blackmail
ae 910, .020 <.a@, 230 offense
Classification: Classification:
Bribery and Labor Classification: Classification:
corrupt influence regulation athletics, theft and
sports and enter- robbery
Penalty: class B tainment
felony Penalty: Gross Penalty:
misdemeanor Penalty: gross variable
misdemeanor
(1921)
West
Virginia W.Va. Code 8 NONE W.Va. Code & W.Va. Code § No separate
61-5A-3
Classification:
bribery and
corrupt practices
Penaity: 1-10 years
for an individual;
$50,000 fine for
a corporation;
individuals are
also disgualified
from office
61-10-22
Classification:
crimes against
public policy
Penalty; felony--
1 tO 3 years
or $1,000 or both
(1945)
61-2-13
Classification:
crimes against
the person
Penalty;
misdemeanoe
--2 to 12 months
and $50 to $500
fine
blackmail
statute
28a
STATE BRIBERY OF COMMERCIAL SPORTS EXTORTION BLACKMATAL
PUBLIC OFFICIAL BRIBERY ____BRIBERY PN
Wisconsin Wis. Stat. Ann. Wis. Stat. Ann. Wis. Stat. Ann. Wis. Stat. Ann. No separate
§ 946.10 § 134.05 § 945.08 S '343530.,'-. 33 blackmail
statute
Classification: Classification: Classification: Classification:
crimes against miscellaneous gambling crimes against
government and trade regulations properly
its administration
Penalty: $10.00 Penalty: class D Penalty: $2,000
Penalty: class D to $500 fine or felony for bribery; fine or 5Syears
felony fine and impri- class A misdemeanor or both (.30)
sonment for up for bribed $1,000 fine
to 1 year or l year
(1905) or both (.31)
Wyoming Wyo. Stat. NONE Wyo. Stat. Wyo. Stat. Wyo. Stat.
§ 6-8-201 § 6-9-302 6-8-510 6-7-601
Classification:
offense against
public justice
Penalty: up to 14
years in penitentiary
Classification:
offenses against
public policy
Penalty: 1 to 5
years or $5,000
fine or both
(1963)
Classification:
offenses against
public justice
Penalty:
$10.00 to
$500.00 fine
and up to
6 months in jail
and removal from
. office
Classification
offenses aqairb
public peace
Penalty:
up to 5
years
29a
STATE BRIBERY OF COMMERCIAL SPORTS EXTORTION BLACKMAIL
PUBLIC OFFICIALS BRIBERY BRIBERY oe
Model § 224-8 § 223.9 223.2 No separate
Penal 6 240.1 blackmail
Code offense
Classification: Classification: Classification: Classification:
offenses against forgery and forgery and theft and
public adminis-
tration
Penalty: 3rd
degree felony
fraudulent
practices
Penalty:
misdemeanor
fraudulent
practices
Penalty:
variable
related offenses
Penalty:
variable
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