Respondents Brief — Perrin v. United States

Supreme Court, U.S.

oa

No. 78-959 SEP 28 i979

[MICHAEL RODAK, JR. cLER

Iu the Suprenw Court of the United States

OCTOBER TERM, 1978

VINCENT R. PERRIN, JR., PETITIONER

v.

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

REPLY BRIEF FOR THE UNITED STATES

WADE H. McCreE®B, JR.

Solicitor General

Department of Justice

Washington, D.C. 20530

INDEX

CITATIONS

Cases: Page

Bouie v, City of Columbia, 378 U.S. 347.... 9

Boyce Motor Lines, Inc. v. United States,

BS SAREE NOPE ti eee OO SCRE ee: 10

Cannon v. University of Chicago, No. 77-

P&E RR | |) RR ENSRC OCS 3

Erlenbaugh v. United States, 409 U.S.

AY SRERINEDEDS COR uae Cee es eee

Hoke v. United States, 227 U.S. 308 -....... 9

James v. United States, 366 U.S. 213...... 11

Kordel v. United States, 335 U.S. 345...... 5

Marks v. United States, 430 U.S. 188........ 10

Rewis v. United States, 401 U.S. 808........ 9

United States v. Bass, 404 U.S. 336 —......... 9

United States v. Brecht, 540 F.2d 45........ 10

United States v. Culbert, 435 U.S. 371...... 9

United States v. Dansker, 587 F.2d 40...... 3

United States v. Naftalin, No. 78-561

Ss CT ek 7

United States v. Nardello, 393 U.S. 286..... 7,8

United States v. Niedelman, 356 F. Supp.

SRE STO TE a AES A ae eT 2

United States v. Pomponio, 511 F.2d 953,

cert. denied, 423 U.S. 874 —.....0020000020... 3, 4, 10

United States v. Rutherford, No. 78-605

ge | NRE ONO Reems aN 7

Constitution and statutes:

United States Constitution, Fifth Amend-

ment (Due Process Clause) .................. 9

og USERS Sah SEA eee 2,4

FR SSIES Sn SSA a aro OY BE 4

|

II

Constitution and statutes—Continued Page Iu the Sur enw Court of the United States

RM RN Se ot ge 4 OCTOBER TERM, 1978

Be Ace eee) Cosi acted hesenghcdacncceonene 2

Be ey atic ren datficelat seca darcchies onpedhcabe 3, 4

BP IE PIII =. sicssasiginesonisnencencndebnncounidaainenoks 4

mee we 4 re ere

: VINCENT R. PERRIN, JR., PETITIONER

Miscellaneous:

J. Kwitny, Vicious Circles: The Mafia In v.

The Marketplace (1979) ................-..------ 5

Note, Control of Nongovernmental Cor- UNITED STATES OF AMERICA

ruption By Criminal Legislation, 108

U. Pa. L. Rev. 848 (1960) -.......00002..... 2

S. Rep. No. 96-605 (Pt. 1), 95th Cong., ON WRIT OF CERTIORARI TO THE UNITED STATES

I a 3 COURT OF APPEALS FOR THE FIFTH CIRCUIT

Webster’s Third New International Dic-

kk GER COPECO BP desea oT ORR UE 3

REPLY BRIEF FOR THE UNITED STATES

_ Petitioner’s opening brief in this case was 15 pages

in length and cited only nine authorities. Petition-

er’s reply brief is an extensive document citing a

substantial number of new authorities and raising

contentions that the government has not had an op-

portunity to address. The government submits this

reply brief to respond to these new and belated

assertions.

1. Petitioner argues (Reply Br. 4-10) that in

1961 the word “bribery” extended no further than

(1)

2

its common law definition and that, while the other

terms appearing in 18 U.S.C. 1952(b)(2) should be

given a generic interpretation to reflect contemporary

meanings, the term “bribery” must be given a re-

strictive construction. In support of that argument,

petitioner asserts that only 13 states had general

commercial bribery laws in 1961. However, an

additional 12 states had criminal commercial bribery

statutes focused on employees in particular lines of

business. See Note, Control of Nongovernment Cor-

ruption By Criminal Legislation, 108 U. Pa. L. Rev.

848, 849, 864, 866 (1960). Thus, one half of the

states in the nation had enacted criminal commercial

bribery laws prior to 1961. See United States v.

Niedelman, 356 F. Supp. 979, 982 (S.D.N.Y. 1973).

In addition, 32 states had criminal statutes prohibit-

ing bribery in sporting events. See Note, supra, 108

U. Pa. L. Rev. at 865, 867. In all, 43 states had

criminal laws forbidding different kinds of non-

official bribery. See the appendix to our initial brief.

Nor has petitioner denied that, prior to 1961, Con-

gress had enacted a substantial number of criminal

laws prohibiting non-official bribery. See our initial

brief at 24-26.’ |

Because Congress drafted the Travel Act in such

a way that it applies to interstate schemes violating

! Although petitioner argues that these commercial bribery

laws are different from official bribery laws because they have

greater specificity (Reply Br. 5-6), official bribery laws also

define with particularity the class of regulated persons and the

kinds of activities that are forbidden. See 18 U.S.C. 201.

3

state or federal bribery laws, without limitation on

the type of bribery, the widespread existence of state

and federal laws designating private corruption as a

form of criminal bribery is a strong indication that

the Travel Act should have a comparable reach. It

should not be assumed that Congress was ignorant

of its own non-official bribery laws or those of the

43 states that had enacted such legislation.? Nor

should it be assumed that Congress harbored an un-

expressed intention to limit the Act to a particular

sub-category of bribery when the literal meaning of

the word that it selected is generic. See Webster’s

Third New International Dictionary 275 (1961).*

2 See Cannon V. University of Chicago, No. 77-926 (May 14,

1979), slip op. 17-18: “It is always appropriate to assume that

our elected representatives, like other citizens, know the law.”

’ The authorities cited by petitioner do not lend support to

the contention that “bribery” is limited to “official corrup-

tion.” The court of appeals in United States v. Dansker, 537

F.2d 40, 47 (3d Cir. 1976), expressly rejected the argument

that the Travel Act should be so limited, noting that a generic

interpretation of the Act “has enabled it to encompass state

statutory expansions of the crimes of extortion, bribery and

arson over the years, and thus more effectively carry out its

purpose of aiding local law enforcement efforts to combat

‘pernicious undertakings which cross state lines.’” S. Rep.

No. 96-605 (Pt. 1), 95th Cong., lst Sess. (1977), also relied

on by petitioner (Reply Br. 8), shows clearly that Congress

views commercial corruption as a form of “bribery.” The

Senate Report calls for enhanced federal penalties in light of

the seriousness of commercial bribery, and refers to United

States v. Pomponio, 511 F.2d 953 (4th Cir.), cert. denied,

423 U.S. 874 (1975), with approval. See id. at 738. Petitioner

also cites 18 U.S.C. 1961, which defines the expression “racke-

teering acivity” to include various state law offenses (includ-

4

Petitioner also argues that commercial bribery is a

less serious offense than official bribery under many

state laws and should not be treated with comparable

severity under the Travel Act (Reply Br. 17-18).

That contention, however, ignores the nature of the

offense prohibited by the Travel Act. The Act is

concerned with the use of interstate facilities to carry

on bribery, arson, or extortion in violation of federal

laws or the laws of 50 different states. Those laws

frequently provide differing penalties. But Congress

prescribed a uniform federal sanction for persons

who use the facilities of interstate commerce to vio-

late such laws.*

ing bribery). It also extends to a number of federal statutory

offenses (including those proscribed in 18 U.S.C. 201 and 224

and 29 U.S.C. 186). This statute, enacted in 1970, sheds no

light on the congressional purpose underlying the Travel Act,

which is drafted in different terms and prohibits different

activities. Unlike 18 U.S.C. 1961, the Travel Act contains a

single generic reference to “bribery” in violation of state or

federal laws and does not list particular statutes. To the extent

that it has any relevance here, 18 U.S.C. 1961 is supportive of

the government’s position because it demonstrates Congress’

understanding that racketeers frequently make use of forms of

bribery other than official bribery in carrying on their illegal

activities.

4

4 It is, of course, not unusual for Congress to prescribe sub-

stantial penalties for conduct that may be treated with greater

lenience under state law, where the conduct involves the use

of interstate facilities. See, e.g., 18 U.S.C. 2421 (transporta-

tion of women for immoral purposes) ; 18 U.S.C. 1341 (prac-

ticing deceptive schemes through the mails). See also United

States v. Pomponio, 511 F.2d 953, 957 (4th Cir.), cert. denied,

423 U.S. 874 (1975).

5

Nor is there merit to the argument that commer-

cial bribery is inherently less serious than official

bribery. Official bribery can involve small pay-offs

to building inspectors or procurement personnel just

as commercial bribery can involve small payments

to private employees. As the facts in this case dem-

onstrate, however, commercial bribery can also in-

volve well-organized criminal ventures with sophisti-

cated participants playing for large stakes. Com-

mercial bribery—rendered more dangerous through

the use of interstate commerce—has the demonstrated

potential to cause serious injury to honest business

firms as well as as to enrich the syndicate. See our

initial brief at 38-41. See also J. Kwitny, Vicious

Circles: The Mafia In The Marketplace 5-46, 94-99,

202-210, 241-246 (1979).

Although petitioner makes the bare assertion that

commercial bribery is not a “feature of organized

crime” (Reply Br. 18 n.13), he fails to come to grips

with the clear evidence to the contrary that is cited in

our initial brief at 38-41. If organized crime is free

to use the facilities of interstate commerce to carry

on commercial bribery schemes of the kind disclosed

by this record, the congressional purpose to cut off

the flow of illegal revenues to organized crime would

be seriously undermined. As this Court observed in

Kordel v. United States, 335 U.S. 345, 349 (1948),

“there is no canon against using common sense in

reading a criminal law, so that strained and technical

constructions do not defeat its purpose by creating

exceptions from or loopholes in it.”

6

While it is true that one can envision relatively

insignificant bribery offenses—involving both official

and non-official bribery—Congress has made the judg-

ment that use of interstate facilities to promote

bribery is a serious threat to the national welfare. It

is not appropriate to create exceptions from or loop-

holes in the statute simply because de minimis vio-

lations can be visualized, particularly in a case such

as this involving an extensive criminal enterprise.

2. Petitioner also argues (Reply Br. 13-15) that

the legislative history is equally supportive of the

common law and generic definitions of the term

“bribery.” He notes that the congressional hearings

contain references to both official and non-official cor-

ruption. In fact, however, all of the legislative his-

tory supports the generic view; none of it supports a

restrictive common law interpretation. As we have

noted in our initial brief (pages 28-32), the legislative

history contains repeated references to non-official

bribery, such as bribery of labor union officials and

athletes. The existence of other references to official

bribery suggests only that Congress recognized that

the term bribery properly applies to both official and

non-official corruption—that is, that Congress under-

stood the contemporary generic meaning of the word

bribery. There is not a hint in the legislative history

that any Congressman or representative from the De-

partment of Justice believed that the Act should ap-

7

ply only to official bribery. See United States v.

Naftalin, No. 78-561 (May 21, 1979), slip op. 6-7.°

3. Petitioner further contends (Reply Br. 10-12)

that this Court’s decision in United States v. Nardello,

393 U.S. 286 (1969), provides no support for a

generic interpretation of the word bribery. He argues

that the Court embraced “blackmail” within the statu-

tory term “extortion” because blackmail had been

treated as a kind of extortion under various state

statutes. But the same is true of bribery. Numerous

federal and state statutes treat commercial corrup-

tion as a kind of criminal bribery. Nor is it relevant

6 The letter from Deputy Attorney General White, referred

to by petitioner (Reply Br. 14), shows that the Department

of Justice believed that the Act should apply to official bribery.

It does not suggest that anyone believed that privave bribery

should not also be encompassed. It is clear that Deputy At-

torney General White did not entertain any such view, as

shown by his subsequent report to Congress on behalf

of the Department of Justice sta.ing that the Travel Act

applies, in appropriate circumstances, to bribery in sporting

events. See our initial brief at 30-31. Although these views

were expressed shortly after enactment of the Travel Act,

they are identical with those of Senator Keating, who stated

during hearings on the bill that became the Travel Act that

it would apply to bribery of athletes “if you could prove item

of travel with intent.” Id. at 30. The interpretation of the

Deputy Attorney General, who participated in the process

of drafting the Travel Act, is entitled to substantial defer-

ence. See, e.g., United States v. Rutherford, No. 78-605

(June 18, 1979), slip op. 8. The views of the Deputy At-

torney General, the Assistant Attorney General (see our

initial brief at 32 n.27), and Senator Keating militate strongly

against the argument that the Travel Act applies only to

“official” bribery.

that commercial and official bribery are often pro-

hibited in different statutes.’ That was the situation

in Nardello (393 U.S. at 288-289), but the Court none-

theless adopted a generic interpretation under the

Travel Act. See id. at 293-296.

The direct relevance of Nardelio in the present case

lies in its conclusion that the word extortion should

not be restricted, as it was at common law, to mis-

conduct involving public officials (393 U.S. at 290,

292-293), but rather should extend to those actions

“generally known” as extortion. Instead of giving the

term extortion “an unnaturally narrow reading,” the

Court decided that a “generic” definition was most

consistent with the purposes of the Act. See id. ut

295-296. These considerations are directly relevant

here: in both popular and legal usage in 1961, the

term “bribery” had a generic meaning; and, as noted

above, the generic definition is essential to vindicate

Congress’ purpose—.e., to deprive organized crime of

the use of interstate facilities to carry on bribery

schemes that increase illegal revenues.*®

7 Some states prohibit commercial and official bribery in the

same statute. See our initial brief at 27 n.23.

8 While it is true that Nardello states in a footnote that

“(b]ribery has traditionally focused upon corrupt activities

by public officials” (393 U.S. at 293 n.11), the Court did not

purport to undertake a full examination of the evolution of

the crime of bribery. Even at common law, as petitioner con-

cedes (Reply Br. 4), the term bribery extended beyond

the corrupt actions of public officials, reaching corruption of

private persons such as voters and witnesses. In England,

commercial bribery has been a crime since 1906. See our

initial brief at 26-27 n. 22.

9

Although petitioner protests that a generic inter-

pretation will extend federal jurisdiction over state

crimes (Reply Br. 16-17), there can be no doubt

that Congress intended to aid local law enforcement

officials by condemning use of interstate facilities to

carry on activities illegal under local law. This is not

a case such as Rewis v. United States, 401 U.S. 808

(1971), or United States v. Bass, 404 U.S. 336

(1971), in which local criminal activities had no sig-

nificant nexus with interstate commerce. Where, as

here, the government proves that the defendant used

the facilities of interstate commerce for a purpose for-

bidden by Congress, there is no question of intruding

impermissibly into the sphere of state regulation.

See Erlenbaugh v. United States, 409 U.S. 239, 245-

247 (1972); United States v. Culbert, 435 U.S. 371,

379-380 (1978); Hoke v. United States, 227 U.S. 308,

321-322 (1913).

4. Petitioner finally contends (Reply Br. 19-25)

that the statute is unconstitutionally vague in viola-

tion of the Due Process Clause, citing Bouie v. City

of Columbia, 378 U.S. 347 (1964). However, the

statute presents no vagueness problem. The literal dic-

tionary meaning of the term bribery is generic. Both

Congress and the states applied the term generically

in a wide variety of criminal laws prior to passage

of the Travel Act. The legislative history shows that

Congress understood the word bribery in its generic

sense, with no Congressman or governmental repre-

sentative ever suggesting that the term should be

limited to its “common law” meaning. Moreover, the

dominant statutory purpose strongly supports the

10

generic construction. Under these circumstances,

there is no uncertainty that requires a limiting in-

terpretation.

Petitioner also argues that the decision of the court

of appeals operated retroactively and unforeseeably,

citing Marks v. United States, 430 U.S. 188 (1977).

However, petitioner received fair warning from the

text of the Travel Act, which extends to bribery pro-

hibited by state statute without limitation on its kind.

He also received notice that his actions were illegal

from the Louisiana commercial bribery statute that

triggered application of the Travel Act. This Court’s

1969 Nardello decision placed petitioner on notice that

the Act would not be confined to common law mean-

ings or be given an unnaturally narrow reading.

Moreover, prior to petitioner’s actions, the United

States Court of Appeals for the Fourth Circuit (the

only court of appeals to have decided the question)

had held unanimously that commercial bribery was

covered by the Travel Act. United States v. Pompo-

nio, 511 F.2d 953 (1975).°

The decision of the Second Circuit in United States

v. Brecht, 540 F.2d 45 (2d Cir. 1976), on which peti-

tioner relies, was not handed down until one year

after he engaged in the illegal bribery scheme. There

was thus no “conflict” in the circuits that could have

® Petitioner was well aware that his conduct was wrongful,

as the evidence at trial established. See our initial brief at

8-9. There is thus no question of convicting a defendant who

believed that his actions were proper. See, e.g., Boyce Motor

Lines, Inc. v. United States, 342 U.S. 337, 340, 342 (1952).

11

misled petitioner or caused him to believe that his

conduct was lawful.”

For the foregoing reasons and the reasons stated

in our initial brief, the judgment of the court of

appeals should be affirmed.

Respectfully submitted.

WADE H. McCCREE, JR.

Solicitor General

SEPTEMBER 1979

1° The present case thus has no similarity to James V.

United States, 366 U.S. 213, 221-222 (1961), where a prior

decision of this Court had held that the conduct challenged

in the indictment was lawful.

WX oo. S. GOVERNMENT PRINTING OFFICE: 1979 301949 os