Friday, December 14, 2007
I’ve been talking during my week-long guest stint at White Collar Crime Prof Blog about the crime of bribery and some of its enduring problems. The Second Circuit has recently issued an opinion in United States v. Ganim (available below), that reminds us of just how thoroughly confused the law in this area has become. The case involves a former mayor of Bridgeport, Connecticut, who was convicted of numerous counts of racketeering, mail fraud, conspiracy, filing false income tax returns, and federal programs bribery.
In appealing his conviction, Ganim relied on United States v. Sun-Diamond Growers of California, 526 U.S. 398 (1999). That case involved a prosecution for gratuities under 18 U.S.C. § 201(c)(1)(A), which makes it a crime to give anything of value to a public official "for or because of any official act performed or to be performed by such public official." The question in the case was whether the prosecution had to prove a link between the gift and some specific official act, or whether it was enough that the gift was given in the interest of building goodwill between the giver and official. The Court held that the former interpretation was the correct one: in order to prove a gratuity, the prosecution had to prove a nexus between the gift and a specific official act.
In Ganim, the defendant argued that the demanding rule in Sun-Diamond should be extended beyond gratuities to apply as well to extortion and other bribery-related offenses. In upholding the conviction, the Second Circuit rejected this approach, reasoning that the nexus requirement is limited to gratuities. As a matter of statutory interpretation, this is surely correct. There is simply no basis for reading such a requirement into the extortion and bribery statutes. But the case also demonstrates just how wrongheaded the original decision in Sun-Diamond really was. For the fact is that there was no basis for reading such a requirement into the gratuities statute in the first place.
As the court in Ganim put it, "[u]ndergirding the Court’s decision in Sun-Diamond was a need to distinguish legal gratuities (given to curry favor because of an official’s position) from illegal gratuities (given because of a specific act)." Framed this way, one gets a sense of what was wrong with the Court’s holding in Sun-Diamond. Could Congress really have intended to protect from liability gifts given to public officials for the purpose of "curry[ing]" their favor? This seems to me quite unlikely. Gifts given merely to curry favor with officials are hardly less troubling to the political process than gifts given to obtain action on specific acts. The rule in Sun-Diamond has the effect of blurring the distinction between bribes and gratuities by grafting onto the gratuities provision what amounts to a quid pro quo requirement that Congress never intended to be there.