Amicus Curiae Brief — United States v. Sun-Diamond Growers of California

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No. 98-131 ie OLERM

Jn the Supreme Court of the Gnited States

OCTOBER TERM, 1998

UNITED STATES OF AMERICA, PETITIONER

SUN-DIAMOND GROWERS OF CALIFORNIA

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES DEPARTMENT

OF JUSTICE AS AMICUS CURIAE

SETH P. WAXMAN

Solicitor General

Counsel of Record

JAMES K. ROBINSON

Assistant Attorney General

MICHAEL R. DREEBEN

Deputy Solicitor General

MALCOLM L. STEWART

Assistant to the Solicitor

General

J. DOUGLAS WILSON

Attorney

Department Of Justice

Washington, D.C. 20530-0001

(202) 514-2217

SS + TS, SSUES OG

“

QUESTION PRESENTED

Is the requirement in 18 U.S.C. 201(c)(1)(A) that a

thing of value be given “for or because of any official

act” satisfied by a showing that the giving of a thing of

value was motivated by the reeipient’s official position?

TABLE OF CONTENTS

Page

Interest of the United States Department of Justice ............. l

SPUNUINIIIND cciiecscnecttinnnntonensetnisnennennsethenetnremtnemenesencassenemmessctsesuemtnenses 2

Ey GE GOES, ccencccscnctrsseereeeseennemeennen 11

Argument:

The federal gratuities statute, 18 U.S.C.

201(¢)(1)(A), prohibits the giving of things of

value to a federal official if, but only if, the

gifts are motivated by official acts performed

by the recipient in the past or by the recipient’s

capacity to perform such acts in the future ...............000 12

A. Section 201(c)(1)(A) does not prohibit gifts

motivated by the recipient’s official status

or title if the donor is indifferent as to the

manner in which the recipient’s governmental!

TE SP GIITGRING cccsensernersenseseeeeersesemeeen 14

B. Section 201(c)(1)(A) does not require the gov-

ernment to prove a nexus between a gratuity

and a specifically identified official act ..............0«-+ 18

C. The state of mind of a donor in a Section

201(c)(1)(A) prosecution, like any other ele-

ment of a criminal offense, may be proved by

circumstantial as well as by direct evidence ............ 21

Conclusion 23

TABLE OF AUTHORITIES

Cases:

Cheek v. United States, 498 U.S. 192 (1991) 22

Crandon v. United States, 494 U.S. 152 (1990) ............... 14

Mallette v. Scully, T52 F.2d 26 (2d Cir. 1984) .....ccsceresveees 2

Morissette v. United States, 342 U.S. 246 (1952) ............. 23

Sun-Diamond Growers of California v. United

States, 1198. Ct. 409 (1998) 4

(IID

Cases—Continued: Page

United States v. Alessio, 528 F 2d 107% (9th Cir.),

cert. denied, 426 U.S. 948 (1976) 16

United States v. Beck, 615 F.2d 441 (7th Cir.

1980) 22

United States v. Brewster, 408 U.S. 501 (1972)

United States v. Brewster, 506 F 2d 62 (D.C. Cir.

1974) 8, 18, 19

United States v. Bustamante, 45 F 3d 933 (5th

Cir.), cert. denied, 516 U.S. 973 (1995) 8, 15, 16

United States v. Evans, 572 F.2d 455 (5th Cir.),

cert. denied, 439 U.S. 870 (1978) 15, 16

United States v. Gorman, 807 F.2d 1299 (6th Cir.

1986), cert. denied, 484 U.S. 815 (1987) 15, 16

United States v. Hudson, 717 F.2d 1211 (8th Cir.

1983) 22

United States v. Jones, 16 F.3d 275 (8th Cir.

1994) 22

United States v. Macko, 994 F.2d 1526 (11th Cir.

1993) 22.

United States v. Niederberger, 580 F 2d 63 (3d Cir.),

curt. denied, 439 U.S. 980 (1978) 3, 18

United States v. Ocampo-Guarin, 968 F.2d 1406 (ist

Cr. 1992) 22

Un ted States v. Standefer, 610 F.2d 1076 (3d Cir.

1{/79), aff'd on other grounds, 447 U.S. 10 (1980) ......... 15, 16

United States v. Sun-Diamond Growers of Califor-

nia, 964 F. Supp. 486 (D.D.C. 1997) 8, 12

United States v. United States Gypsum Co.,

438 U.S. 422 (1978) 22, 23

Statutes and regulations:

Ethics in Government Act of 1978, 28 U.S.C.

591 et seq. (1994 & Supp. II 1996)

28 U.S.C. 597(b)

Federal Election Campaign Act of 1971:

2 U.S.C, 441 b(a)

2 USC. 441f

5 U.S.C. 7358

5 U.S.C, 73538(a)

7 U.S.C. 5623 (1994 & Supp. IT 1996)

18 U.S.C, 201-225

18 U.S.C, 201Ma\(1)

18 U.S.C. 201(a\(3)

18 U.S.C, 201(b)

18 U.S.C. 201(b\(1)

18 U.S.C. 201)

18 U.S.C, 201(e)(1)

18 U.S.C. 201(e)(1 (A) 2, 11, 14,

18 U.S.C. 208

18 U.S.C. 209

18 U.S.C. 1348

18 U.S.C. 1346

5 C.P.R«

Section 2635, Subpt. B

Section 2635.201

Section 2635.203(d)

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Sreoeweecne Ke

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Miscellaneous:

H.R. Rep. No. 748, 87th Cong., Ist Sess. (1961) 0 11,20

In the Supreme Court of the Gnited States

OCTOBER TERM, 1998

No. 98-131

UNITED STATES OF AMERICA, PETITIONER

SUN-DIAMOND GROWERS OF CALIFORNIA

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES DEPARTMENT

OF JUSTICE AS AMICUS CURIAE

INTEREST OF THE UNITED STATES

DEPARTMENT OF JUSTICE

This prosecution arises under the federal gratuities

statute, 18 U.S.C. 201(c), and was brought by Indepen-

dent Counsel Donald C. Smaltz pursuant to the Ethics

in Government Act of 1978, 28 U.S.C. 591 et seg. (1994 &

Supp. II 1996). The Ethics in Government Act of 1978

provides that “[nJjothing in [the Act] shall prevent the

Attorney General or the Solicitor General from making

a presentation as amicus curiae to any court as to issues

of law raised by any case or proceeding in which an

independent counsel participates in an official capacity

or any appeal of such a case or proceeding.” 28 U.S.C.

(1)

597(b). Other than in prosecutions conducted by an

Independent Counsel, the United States Department of

Justice is responsible for the enforcement of the gratui-

ties statute. The Department therefore has a sub-

stantial interest in the resolution of the issue of law

presented in this case.

STATEMENT

1. Section 201(¢)(1)(A) of Title 18 U.S.C. establishes

criminal penalties of up to two years’ imprisonment for

any person who

otherwise than as provided by law for the proper

discharge of official duty * * * directly or in-

directly gives, offers, or promises anything of value

to any public official, former public official, or person

selected to be a public official, for or because of any

official act performed or to be performed by such

public official, former public official, or person

selected to be a public official.

18 U.S.C. 201(¢)(1)(A) (emphasis added). The statute

defines the term “official act” as “any decision or action

on any question, matter, cause, suit, proceeding or

controversy, which may at any time be pending, or

which may by law be brought before any public official,

in such official’s official capacity.” 18 U.S.C. 201(a)‘3).

The term “public official” is defined to include any

“officer or employee or person acting for or on behal: of

the United States, or any department, agency or branch

of Government thereof.” 18 U.S.C. 20:.4)(1).

Although Section 201(c) does not contain the word

“gratuity,” the courts of appeals have repeatedly used

that term to describe the payments forbidden by Sec-

tion 201(c), and to distinguish the Section 201(c)

offenses from the bribery offenses defined by 18 U.S.C.

201(b). See, e.g., Pet. App. 7; United States v. Brewster,

506 F.2d 62, 68-72 (D.C. Cir. 1974); United States v.

Bustamante, 45 F.3d 933, 935 (5th Cir.), cert. denied,

516 U.S. 973 (1995); United States v. Niederberger, 580

F.2d 63, 68 (3d Cir.), cert. denied, 439 U.S. 980 (1978).

Section 201(b) establishes criminal penalties of up to 15

years’ imprisonment for any person who “directly or

indirectly, corruptly gives, offers or promises anything

of value to any public official * * * withintent * * *

to influence any official act.” 18 U.S.C. 201(b)(1).!

2. Independent Counsel Donald C. Smaltz obtained a

nine-count indictment against respondent Sun-Diamond

! The provision of things of value to federal officers and em-

ployees is subject to various criminal provisions in addition to

those included in Section 201. See, eg., 18 U.S.C. 208 (compen-

sation to Members of Congress and other federal officers and em-

ployees in matters affecting the government); 18 U.S.C. 209

(supplementation of salaries of federal officers and employees); see

generally 18 U.S.C, 201-225 (bribery, graft, and conflicts of

interest).

Additional restrictions on the receipt of things of value by

federal officers and employees are imposed by 5 U.S.C. 7358 and

(with respect to Executive Branch officials) by regulations pro-

mulgated thereunder by the Office of Government Ethics. See 5

C.F.R. 2685, Subpt. B. Those regulations provide as a general rule,

subject to specified exceptions, that federal employees are pro-

hibited “from soliciting or accepting any gift from a prohibited

source or given because of the employee's official position.” 5

C.F.R. 2635.201. The term “prohibited source” is defined to in-

clude persons seeking official action by, doing business or seeking

to do business with, or conducting activities regulated by the em-

ployee’s agency, as well as persons whose interests may be

substantially affected by the individual employee’s performance or

nonperformance of his official duties. 5 C.F.R. 2635.208(d); see 5

U.S.C, 7353(a). Those regulations define the obligations of federal

employees and do not purport to govern the conduct of private

donors.

Growers, Inc., a large agricultural cooperative. At

issue in this case is respondent’s conviction under

Count I, which alleged that respondent had given

unlawful gratuities to then-Secretary of Agriculture

Mike Espy. Count I charged respondent with giving

Espy tickets to the 1993 U.S. Open Tennis Tournament

worth $2,295, luggage worth $2,427, meals worth $665,

and a framed print and crystal bowl worth $524. Pet.

App. 4.°

At the time of the gratuities alleged in Count lI,

Richard Douglas was employed by respondent as a

senior vice president. Pet. App. 36. Douglas had

attended college with Espy, and the two had remained

close friends during the ensuing years. Id. at 2.

Although the gifts in question were transferred to Espy

through Douglas, the indictment alleged that respon-

dent had reimbursed Douglas for the gifts, treating

them as business expenses. Jd. at 4.

The indictment identified two issues in which re-

spondent had an interest in favorable action by the

Secretary of Agriculture at the time when the alleged

2 Count II of the indictment alleged a separate violation of

Section 201(c)(1)(A). The jury acquitted respondent on that count.

Pet. App. 4 n.1. Counts III and IV alleged violations of the federal

wire fraud statute, 18 U.S.C. 1343 and 1346. Pet. App. 14. Counts

V through IX alleged violations of the Federal Election Campaign

Act of 1971, 2 U.S.C. 441b(a) and 441f. Pet. App. 14. The jury

found respondent guilty on Counts III through IX. /bid. The

court of appeals affirmed the convictions on Counts III through IX

but vacated the sentence imposed by the district court and re-

manded the case for resentencing. /d. at 31. Counts II through IX

are not at issue in this Court. Respondent filed a cross-petition

challenging the court of appeals’ affirmance of the convictions on

Counts III and IV. The Court denied that cross-petition. See

Sun-Diamond Growers of California v. United States, 119 S. Ct.

409 (1998).

gratuittes were bestowed. Pet. App. 3. First, respon-

dent sought regulatory action that would have in-

creased its members’ chances of obtaining grants under

the market promotion program, a program adminis-

tered by the Department of Agriculture pursuant to

statutory authority as a means of assisting U.S. agricul-

tural exports. Jbid.; see 7 U.S.C. 5623 (1994 & Supp. I

1996). Second, respondent wanted then-Secretary

Espy’s help in persuading the Environmental Protec-

tion Agency to delay or reject a proposed phase-out of

methyl bromide, a pesticide used by some of the

growers who belonged to respondent’s member coop-

eratives. Pet. App. 4.

3. a. The district court denied respondent’s motion to

dismiss the indictment. Pet. App. 35-66. With respect

to Count I, respondent contended that the indictment

was deficient because it “dfid] not allege that [respon-

cent] provided things of value to reward Secretary

Espy for a specific act he had already performed or was

already committed to perform.” /d. at 38. The district

court framed the question before it as “whether, with

respect to appointed officials, the gratuity statute

requires the indictment to allege a nexus between the

provision of things of value and a specific official act

performed or committed to be performed by the

appointed official.” Jd. at 41-42.

The court held that such a nexus was not required.

“Rather,” the court stated, “it is sufficient for the in-

dictment to allege that the provider of the gratuity has

matters within the purview of the official receiving the

gratuity, and that the gratuity be provided simply

because of the official’s position, in appreciation of the

relationship, or in anticipation of its continuation.” Pet.

App. 42 (internal quotation marks, brackets, emphasis,

and ellipsis omitted). The court acknowledged that a

closer connection »etween a payment and an official act

might be required in a prosecution of an elected official

(see id. at 42-44), but it concluded that “in cases involv-

ing appointed officials, such as the present matter, it is

sufficient for the indictment to allege that Secretary

Espy received things of value because of his status as

Secretary of the Department of Agriculture,” id. at 44.

b. Consistent with its ruling on the motion to dismiss

the indictment, the district court repeatedly instructed

the jury that the government was not required to prove

a nexus between the alleged gratuities and any specific

official action, and that respondent could properly be

convicted based on proof that the gifts were motivated

by Espy’s “position.” Thus, the jury was instructed

that “to prove the offense of illegal gratuity, the gov-

ernment must prove that [respondent] knowingly and

willingly gave, offered or promised a thing of value to

Secretary of Agriculture, Mike Espy, for or because of

his official position.” Pet. App. 88. See also id. at 84

(“the government [must] prove that the gratuity was

given because of the public official’s position”); ibid.

(“The gratuity statute makes it a crime for a person or

company to knowingly and willingly give a public

official a thing of value because of his official position

whether or not the giver or receiver intended that

particular official’s acts be influenced.”); ibid. (“The

essence of the crime is the official’s position of [sic] as

the receiver of the payment not whether the official

agrees to do anything in particular, that is, not whether

the official agrees to do any particular official act in

return.”); id. at 85 (Section 201(c) “does not require that

[respondent] gave the gratuities with the intent to

influence Secretary Espy. It is sufficient if [respon-

dent] provided Espy with unauthorized compensation

simply because he held public office.”); id. at 86 (“In

order for you to convict [respondent] of violating the

gratuity statute, you must find beyond a reasonable

doubt that [respondent] gave the gifts to Mr. Espy for

or because of Mr. Espy’s official government position

and not solely for reasons of friendship or social pur-

pose.”); id. at 87 (“The government need not prove that

the alleged gratuity was linked to a specific or identifi-

able official act or any act at all.”).

Other portions of the instructions indicated that

respondent’s status as an entity regulated by the

Department of Agriculture was integral to the applica-

tion of the gratuities statute. Thus, the court stated

that

the government must prove that the gratuity was

knowingly and willingly given for or because of an

official act performed or to be performed by the

Secretary of Agriculture, Michael Espy. That

means that the government must prove that [re-

spondent] knowingly and willingly gave the gratui-

ties, at least in part, because of the Secretary’s

position in appreciation of [respondent’s] relation-

ship with him as a public official or in anticipation of

the continuation of its relationship with him as a

public official.

Pet. App. 87. The jury was further instructed that

“[w]ith respect to official acts, the government has to

prove that [respondent] gave knowingly and willingly

Secretary Espy things of value while it had issues

before the United States Department of Agriculture.”

Id. at 88. The jury found respondent guilty on Count I

and Counts III through [X of the indictment.®

3 At the close of the government’s case, respondent moved for

judgment of acquittal with respect to all nine counts of the

4. The court of appeals affirmed in part, reversed in

part, vacated in part, and remanded the case for a new

trial on Count I and for resentencing on Counts III

through IX. Pet. App. 1-31. With respect to Count I of

the indictment, respondent contended that (a) the

indictment should have been dismissed for failure to

allege a nexus between the gifts and any specific official

act, and (b) the jury instructions were defective be-

cause they permitted a verdict of guilty based solely on

a finding that the gifts were motivated by Espy’s

official position. /d. at 4-5. The court of appeals

rejected respondent’s challenge to the indictment but

agreed with its claim of instructional error. Jd. at 5. It

therefore reversed the conviction on Count I. Jd. at 5-

13.

a. In addressing respondent’s challenge to the jury

instructions, the court of appeals stated that “[t]o

satisfy the criminal intent requirement embodied in the

phrase ‘for or because of any official act,’ the giver must

intend either to reward some past concrete official act

or acts, or to enhance the likelihood of some future act

or acts.” Pet. App. 7. The court stated as well that “if

Douglas furnished Espy with gifts merely to win his

generalized sympathy for [respondent], those gifts

would not be illegal gratuities, unless the jury could

find that Douglas sought this generalized sympathy to

influence Espy to perform one or more official acts

sometime in the future.” Jd. at 10. The court concluded

indictment. See United States v. Sun-Diamond Growers of

Califurnia, 964 F. Supp. 486, 488 (D.D.C. 1997). The district court

denied that motion. /bid. After the jury returned its verdict,

respondent renewed its motion with respect to Counts III through

IX, but not with respect to Count I. J/bid. The district court

denied the renewed motion for judgment of acquittal. /d. at 494.

that the jury instructions given in this case failed to

satisfy that standard:

Given that the “for or because of any official act”

language in § 201(c)(1)(A) means what it says, the

jury instructions invited the jury to convict on

materially less evidence than the statute demands—

evidence of gifts driven simply by Espy’s official

position. The difference may not seem very great,

for whenever a donor has matters actually or poten-

tially pending before his donee, gifts motivated by

the latter’s position will usually also be motivated

by a desire to reward or elicit favorable official

action. But the terms of the statute require a find-

ing that the gifts were motivated by more than

— merely the giver’s desire to ingratiate himself with

the official generally, or to celebrate the latter’s

status.

Id. at 12-13. Because the court concluded that “the

charge failed to give the jury an adequate under-

standing of the issues,” and that “the error cannot be

called technical or harmless,” it “reverse[d] and re-

mand[ed] for a new trial on Count I.” Jd. at 13.

b. The court of appeals rejected respondent’s con-

tention that the indictment should have been dismissed

because it failed to allege that the gratuities in question

were earmarked for particular official acts. The court

explained: “That an official has an abundance of

relevant matters on his plate should not insulate him or

his benefactors from the gratuity statute—as long as

the jury is required to find the requisite intent to

reward past favorable acts or to make future ones more

likely.” Pet. App. 13-14.4

5. The court of appeals denied the Independent

Counsel’s petition for rehearing and suggestion for

rehearing en banc. Pet. App. 32-33. Judge Wald issued

an opinion concurring in the denial of rehearing en

bance. She explained:

I read the panel decision as requiring only that the

gifts be tied to some future acts by the official, even

if those acts are neither specified nor even known at

the time of the gift; this case does not hold that the

prosecutor must establish that particular gratuities

were given to influence particular official acts.

Nonetheless, I admit that the main distinction the

panel draws between gifts motivated by an official’s

“position” and gifts motivated by an official’s “acts”

eludes me altogether. I suppose it is conceivable

that someone might give gifts to a high official

simply to create the impression that he is a “big

shot” or “insider,” without regard to how the official

wields his power. But this hardly seems likely in

the case of a regulated entity. Much more likely is

the assumption that inherent in an official’s “posi-

4 The court of appeals also held that the district court had erred

in sentencing respondent on Counts III through IX by (a) de-

parting upward from the fine range established by the Sentencing

Guidelines (see Pet. App. 26-30) and (b) imposing reporting

requirements on respondent’s member cooperatives (see id. at 30-

31). The court therefore vacated the sentence imposed by the

district court and remanded for resentencing. /d. at 31. The

petition for a writ of certiorari does not challenge that aspect of the

court of appeals’ decision, and the question on which this Court

granted certiorari does not encompass any sentencing issue.

tion” is his capacity to perform regulatory acts

which will affect the gift-giver.

Id. at 34.

SUMMARY OF ARGUMENT

1. Section 201(c)(1)(A) prohibits payments to a

public official “for or because of any official act,” and it

therefore does not reach payments motivated by an

official’s position standing alone. It is possible to

conceive of situations in which a donor may give things

of value to a government officer because of the reci-

pient’s official status, while remaining indifferent as to

the manner in which the recipient’s official duties are

performed. Absent any connection between a gift and

the manner in which governmental power or influence

is exercised, the gift is not properly characterized as

one made “for or because of any official act.” 18 U.S.C.

201(¢)(1)(A).

2. Section 201(c)1A) does not, however, require

proof of a nexus between a gift to a public official and a

specifically identified official act. Ifa gift to a public

official is motivated at least in part by a desire to

reward or influence the recipient’s performance of his

governmental responsibilities, or to generate a

reservoir of goodwill that may influence future acts, the

gift is properly characterized as one made “for or

be cause of any official act performed or to be performed

by” the official, 18 U.S.C. 201(¢)(1)A), whether or not

the donor has a particular act in mind at the time the

gift is made. Such a gift directly implicates the core

concern underlying the various federal bribery and

conflict-of-interest laws—i.e., “[t]he principle * * *

that a public servant owes undivided loyalty to the

Government.” H.R. Rep. No. 748, 87th Cong., Ist Sess.

3 (1961). Thus, where a gift to a public official is moti-

vated by the recipient’s capacity to exercise govern-

mental power or influence in a manner favorable or

unfavorable to the donor, the gift is proscribed by

Section 201(c)(1)(A), regardless of whether the gratuity

is linked to any specific official act.

3. As with any etement of a criminal offense, the

defendant’s mental state may be proved by circum-

stantial as well as by direct evidence. Where a thing of

value is given to a government official who has the

authority to act in matters affecting the donor’s

interests, the jury should generally be permitted to

infer, based on that relationship alone, that the gift was

made “for or because of” the potential future exercise

of official power or influence. Although the jury is not

required as a matter of law to draw that inference, it is

generally allowed to do so; and a guilty verdict

returned by a properly instructed jury on the basis of

such evidence may not be set aside.

ARGUMENT

THE FEDERAL GRATUITIES STATUTE, 18 U.S.C.

201(c)(1)(A), PROHIBITS THE GIVING OF THINGS

OF VALUE TO A FEDERAL OFFICIAL IF, BUT ONLY

IF, THE GIFTS ARE MOTIVATED BY OFFICIAL

ACTS PERFORMED BY THE RECIPIENT IN THE

PAST OR BY THE RECIPIENT'S CAPACITY TO

PERFORM SUCH ACTS IN THE FUTURE

This Court granted certiorari on the following ques-

tion: “Is the requirement in 18 U.S.C. Sec. 201(c)(1 A)

that a thing of value be given ‘for or because of any

official act’ satisfied by a showing that the giving of a

thing of value was motivated by the recipient’s official

position?” 119 S. Ct. 402 (1998). That question cannot

be answered with an unqualified “yes,” at least if the

term “official position” is understood to mean “official

title” or “official status.” If a donor gives things of

value to a government officer or employee because of

the recipient’s official status, but remains indifferent as

to the manner in which the recipient’s official duties are

performed, the gifts would not be “for or because of any

official act” within the meaning of Section 201(¢)(1)(A).

Gifts of that nature do not present the dangers at which

the gratuities statute aims, and exclusion of such gifts

from the scope of the statutory ban is consistent with

the statutory language as well as its underlying pur-

pose.

The “official act” requirement, however, must be

understood in light of two related legal rules that

govern its scope and application. First, a gift need not

be linked to a specifically identified governmental

action in order to fall within Section 201(¢1)(A). Gifts

that are intended to reward-favorable official treatment

in the past, or to increase*the likelihood of such treat-

ment in the future, are properly regarded as having

been made “for or because of any official act.” Second,

the requisite intent may be established in a Section

201(c)(1)(A) prosecution (as in any other judicial

proceeding) by circumstantial evidence. Thus, where a

thing of value is provided to a government official

having authority to act in matters affecting the donor’s

interests, the jury may properly infer that the gift is

intended to reward or influence some (identified or

unidentified) official act, even in the absence of direct

evidence that such a purpose exists.

A. Section 201(c)(1)(A) Does Not Prohibit Gifts Moti-

vated By The Recipient's Official Status Or Title If

The Donor Is Indifferent As To The Manner In Which

The Recipient's Governmental Power Is Exercised

Not all gifts to a government official that are

motivated by the official’s position violate the gratuities

statute It is possible to imagine situations in which a

donor may give things of value to a government officer

or employee because of the recipient’s official status or

title, while remaining indifferent as to the manner in

which the recipient’s official duties are performed. For

example, “it is conceivable that someone might give

gifts to a high official simply to create the impression

that he is a ‘big shot’ or ‘insider,’ without regard to how

the official wields his power.” Pet. App. 34 (Wald, J.,

concurring in the denial of rehearing en banc). Or a

wealthy parent might provide financial assistance to a

child who had accepted a low-paying government job in

order to encourage the child to continue performing

work that the parent regarded as admirable. Cf. Cran-

don v. United States, 494 U.S. 152, 175 (1990) (Scalia, J.,

concurring in judgment). Personal friends of a newly

appointed high-level government official might organize

a dinner, or contribute towards a gift, in order to

celebrate the appointment. In each of those situations

the gift would be made “because of” the recipient’s

official position, in the sense that the same gift would

not be offered if the recipient were not a government

officer or employee. Unless the gift is given with a

view towards the manner in which official power or

influence is (or is expected to be) exercised, however,

the gift cannot plausibly be regarded as one made “for

or because of any official act.” 18 U.S.C. 201(¢)1)(A)

(emphasis added).

As the court of appeals acknowledged (Pet. App. 11),

some courts have framed the inquiry under Section

201(c)(1) as whether things of value were provided

because of the recipient's official “position.” See United

States v. Evans, 572 F.2d 455, 480 (5th Cir.) (“under the

unlawful gratuity subsection all that need be proven is

that the official accepted, because of his position, a

thing of value ‘otherwise than as provided by law for

the proper discharge of official duty”), cert. denied, 439

U.S. 870 (1978); United States v. Standefer, 610 F.2d

1076, 1080 (3d Cir. 1979) (en banc) (“All that was

required in order to convict Standefer was that the jury

conclude that the gifts were given by him for or because

of [the recipient's] official position, and not solely for

reasons of friendship or social purposes”), aff’d on other

grounds, 447 U.S. 10 (1980); United States v. Gorman,

807 F.2d 1299, 1304 (6th Cir. 1986) (“The purpose of [the

gratuities statute] is to reach all situations in which a

government agent’s judgment concerning his official

duties may be clouded by the receipt of an item of value

given to him by reason of his position.”), cert. denied,

484 U.S. 815 (1987); ef. United States v. Bustamante, 45

F.3d 933, 940 (5th Cir.) (under the gratuities statute,

“no proof of a quid pro quo is required; it is sufficient

for the government to show that the defendant was

given the gratuity simply because he held public

office”), cert. denied, 516 U.S. 973 (1995).

None of the cases cited above, however, specifically

addresses the question whether Section 201(c)(1) is

violated where a gift is motivated by the recipient’s

official status or title but the donor is indifferent as to

the manner in which official power or influence is

exercised. Rather, in each of those cases the donor

possessed an evident interest in favorable treatment

from the official to whom the gratuity was given. See

Evans, 572 F.2d at 481-482; Standefer, 610 F.2d at 1078;

Gorman, 807 F.2d at 1305; Bustamante, 45 F.3d at 941.

Those courts appear to have used the word “position”

essentially to mean “capacity to render favorable treat-

ment.” Compare Pet. App. 34 (Wald, J., concurring in

the denial of rehearing en banc) (“in the case of a

regulated entity,” it is likely “that inherent in an

official’s ‘position’ is his capacity to perform regulatory

acts which will affect the gift-giver”); United States v.

Alessio, 528 F.2d 1079, 1082 (9th Cir.) (rejecting suf-

ficiency-of-the-evidence challenge to a donor’s convic-

tion under the gratuities statute because “[t)he jury

could properly conclude from the testimony at trial that

[the donor] knew [the recipient] was in a position to use

his authority in a manner which would affect the

conditions of confinement of [the donor’s] father.”), cert.

denied, 426 U.S. 948 (1976).

As we explain below (see pp. 18-20, infra), a con-

viction under the gratuities statute does not require

proof that the gift in question was earmarked for any

specifically identified official act. It is sufficient to show

that the gift was motivated by the recipient’s perceived

capacity to assist the donor through the exercise of his

official power or influence, even if the particular acts

that might affect the donor’s interests “are neither

specified nor even known at the time of the gift.” Pet.

App. 34 (Wald, J., concurring in the denial of rehearing

en banc). It is clear, however, that Section 201(c)(1)(A)

does not prohibit a donor from giving a thing of value to

a government official if the gift is motivated by reasons

(most obviously, personal friendship) unrelated to the

actual or potential exercise of governmental power or

influence. The statute requires proof that the gift is

provided “for or because of any official act.”

In stating that Section 201(¢)(1)A) prohibits gratui-

ties given because of an official’s “position,” the courts

of appeals appear simply to have recognized that the

correct interpretation of that Section lies between the

extremes described above. The government is not re-

quired to prove that a gratuity was linked to a

specifically identified official act; but it is required to

show that the gift was motivated, at least in part, by

the recipient’s capacity to exercise governmental power

or influence in the donor’s favor. That approach repre-

sents an appropriate reading of the statute. To say that

a donor has given things of value because of the

recipient’s capacity to perform official acts favorable or

unfavorable to the donor is equivalent, in practical

effect, to saying that the gratuities have been given be-

cause of the acts that the recipient is capable of

performing.

The term “position” is overbroad insofar as it would

literally cover the hypothetical circumstance (see p. 14,

supra) in which a gift is motivated by the recipient’s

status or title even though the donor is unconcerned

with the manner in which official power or influence is

exercised. The defendants in the cases cited above,

however, do not appear to have suggested that such a

benign motive animated their conduct or that the jury

instructions would have permitted conviction based

solely on an “official status or title” theory. Given the

questions actually before those courts, use of the term

“position” as a synonym for “capacity to act” was not an

unnatural way of communicating the applicable legui

standard.

B. Section 201(c)(1)(A) Does Not Require The Govern-

ment To Prove A Nexus Between A Gratuity And A

Specifically Identified Official Act

In the court of appeals, respondent argued that the

indictment should have been dismissed because Section

201(¢)(1M A) “requires the government to prove a nexus

between each unauthorized gift and some specifically

identified official act-—performed or hoped to be per-

formed—for which the gift was given.” Pet. App. 4; see

also id. at 38 (respondent moved in district court to

dismiss the indictment on the ground that it “d[id! not

allege that [respondent] provided things of value to

reward Secretary Espy for a specific act he had already

performed or was already committed to perform”). The

courts below correctly rejected that contention. See id.

at 13-14, 42-44. Such a requirement is not supported by

the text of Section 201(c)(1)(A),®° and it would sub-

stantially undermine enforcement of the gratuities ban.

Where a federal official has a continuing capacity to

act on matters that will affect a particular entity, the

regulated party has an obvious interest in keeping the

public official favorably disposed as a general matter,

regardless of the outcome of any particular decision.

The generation and maintenance of such official good-

will falls within the statute, for ultimately a favorable

° The level of intent required under Section 201(¢)(1) does not

rise to the level required under the bribery statute, 18 U.S.C.

201(b). Criminal liability under the bribery statute requires proof

of a quid pro quo between the donor and the recipient, see U/nited

States v. Niederberger, 580 F.2d 63, 68 (3d Cir.), cert. denied, 439

U.S. 980 (1978); United States v. Brewster, 506 F.2d 62, 72 (D.C.

Cir. 1974), though it does not require proof that the officer or

employee who received the bribe actually performed the official

act contemplated in the illicit agreement, see United States v.

Brewster, 408 U.S. 501, 525-527 (1972).

attitude may be manifested in specific official acts. If a

gift to a public official is motivated by a desire to

influence the official’s performance of his governmental

responsibilities, the gift is therefore properly character-

ized as one made “for or because of any official act per-

formed or to be performed by” the recipient, 18 U.S.C.

201(¢)(1)(A), whether or not the donor has a particular

act in mind at the time the gift is made.® Similarly,

Section 201(c)(1)(A) applies to gifts made for the pur-

pose of obtaining “insurance” against unfavorable gov-

ernmental action, even where it is not clear that the

recipient will ever be in a position to affect the donor’s

interests. For example, if an organized crime figure

furnishes gifts to a United States Attorney, hoping that

the United States Attorney will decline prosecution (or

prosecute less vigorously) in the event that the donor

or one of his subordinates comes to the attention of law

enforcement authorities, the gifts would be made “for

or because of” (potential) official action.’

Like other federal bribery and conflict-of-interest

laws, the gratuities ban is grounded in “(t]he principle

* * * that a public servant owes undivided loyalty to

® We address in this context appointed officials and do not

address separate issues that may be raised in cases involving the

provision of things of value to elected officials. Cf. Brewster, 506

F.2d at 73 n.26, 76-78.

7 The term “official act” is broadly defined to include “any

decision or action on any question, matter, cause, suit, proceeding

or controversy, which may at any time be pending, or which may

by law be brought before any public official, in such official’s

official capacity.” 18 U.S.C. 201(a)(3) (emphasis added). The itali-

cized language supports the view that the term extends beyond

specifically identified official actions and encompasses the full

range vf governmental conduct in which the federal officer or em-

ployee is authorized to engage.

the Government.” H.R. Rep. No. 748, 87th Cong., Ist

Sess. 3 (1961) (discussing predecessor versions of

conflict-of-interest statutes and stating that the

principle of undivided loyalty “is as important today as

when the first of these statutes was enacted more than

a century ago”). Gifts intended to improve the “atti-

tude” of a government official towards a regulated

entity, or to enhance the official “relationship” between

the two, are inconsistent with that principle of un-

divided allegiance. If the purpose of such a gratuity is

to increase the ultimate likelihood of some official action

favorable to the donor, the fact that the donor has no

specific official act (or a wide variety of specific official

acts) in mind at the time of the gift does not alter the

fundamental illegitimacy of that goal. As the court of

appeals recognized, “[t}hat an official has an abundance

of relevant matters on his plate should not insulate him

or his benefactors from the gratuity statute—as long as

the jury is required to find the requisite intent to

reward past favorable acts or to make future ones more

likely.” Pet. App. 13-14; see also pp. 15-17, supra.®

8 Some language in the court of appeals’ opinion in this case

comes close to suggesting that Section 201(c)(1)(A) requires proof

of a nexus to an identified official act. Taken as a whole, however,

the opinion is consistent with our approach. The court did state

that “a gift looking to future acts can be an unlawful gratuity

where the giver is motivated simply by the desire to increase the

likelihood of one or more specific, favorable acts.” Pet. App. 8. But

the court did not hold that that scenario exhausts the reach of the

statute. In rejecting respondent’s challenge to the indictment, the

court correctly indicated that a gift motivated by the hope of

generally favorable future official treatment would run afoul of

Section 201(c)(1)(A). /d. at 13-14. Likewise, Judge Wald’s opinion

concurring in the denial of rehearing en bane stated that she

“read[s] the panel decision as requiring only that the gifts be tied

to some future acts by the official, even if those acts are neither

C. The State Of Mind Of A Donor In A Section

201(c)(1)(A) Prosecution, Like Any Other Element Of

A Criminal Offense, May Be Proved By Circumstantial

As Well As By Direct Evidence

The question whether a gift was given “for or

because of any official act” goes to the state of mind of

the donor. Even if the donor is subject to the regu-

latory authority of the recipient, or may otherwise be

affected by the recipient’s official conduct, a gift does

not violate Section 201(c)(1)(A) if it is motivated by

reasons (e.g., personal friendship) unrelated to the

actual or potential exercise of governmental power or

influence. Thus, the fact that a Cabinet Secretary may

have matters before him that could affect a donor’s

business interests does not, in and of itself, establish as

a matter of law that a gift to the Secretary violates

Section 201(c)(1)(A). Rather, the jury must conclude

that the recipient’s capacity to exercise official power or

influence served, at least in part, as the motivation for

the gift.

It is well established, however, that

[bjecause intent is formed in the mind in secrecy and

silence and the human mind functions at a speed

impossible to measure, a determination of whether a

deliberate intent was formed must be drawn from

all the circumstances of the case. Circumstantial

evidence of this subjective fact is therefore indis-

pensable. Circumstantial evidence is as persuasive

as direct evidence. With each, triers of fact must

use their experience with people and events to

weigh probabilities.

specified nor even known at the time of the gift; this case does not

hold that the prosecutor must establish that particular gratuities

were given to influence particular official acts.” /d. at 34.

Mallette v. Scully, 752 F.2d 26, 32 (2d Cir. 1984)

(citation omitted). Accord, e.g., United States v. Jones,

16 F.3d 275, 278 (8th Cir. 1994); United States v. Macko,

994 F.2d 1526, 1533 (11th Cir. 1993); United States v.

Hudson, 717 F.2d 1211, 1213 (8th Cir. 1983); United

States v. Beck, 615 F.2d 441, 449 (7th Cir. 1980). This

Court has recognized, for example, that while knowl-

edge of likely anticompetitive effects is a necessary

element of a criminal antitrust violation, United States

v. United States Gypsum Co., 488 U.S. 422, 443-444

(1978), “an effect on prices may well support an in-

ference that the defendant had knowledge of the

probability of such a consequence at the time he acted,”

id. at 446. See also, e.g., Cheek v. United States, 498

U.S. 192, 203-204 (1991) (where knowledge of illegality

is an element of a criminz! tax violation, the unrea-

sonableness of a defendant’s purported opinion that his

conduct was lawful may cause the jury to conclude that

the opinion was not sincerely held); United States v.

Ocampo-Guarin, 968 F.2d 1406, 1410 (1st Cir. 1992)

(intent to distribute narcotics may be inferred from the

quantity of drugs involved).

In light of the jury’s authority to infer intent from

surrounding circumstances, where a thing of value is

given to a government official who has authority to act

in matters affecting the donor’s interests, the jury

should generally be permitted to infer, based on that

relationship alone, that the gift was made “for or

because of” the potential future exercise of official

power or influence. The defendant in such a case is

entitled to argue to the jury that the gift was made for

reasons unrelated to any actual or potential official

conduct. But while the jury may not be required as a

matter of law to infer that the gift was made “because

of” the official’s capacity to exercise governmental

power, it is generally allowed to do so; and a guilty

verdict returned by a properly instructed jury on the

basis of such evidence may not be set aside. Compare

United States Gypsum Co., 438 U.S. at 446; Morissette

v. United States, 342 U.S. 246, 276 (1952).

CONCLUSION

For the reasons stated above, 18 U.S.C. 201(¢)(1)(A)

prohibits the giving of things of value to federal officials

if, but only if, the gifts are motivated by official acts

performed by the recipient in the past or by the

recipient’s capacity to perform such acts in the future.

Respectfully submitted.