Thursday, July 31, 2008

Panel Divides Over Intent Requirement in Federal Bribery Statute

United States v. Valle, No. 07-50869 (5th Cir. July 30, 2008) (Jones, Clement; Wiener, dissenting in part)

The federal bribery statute prohibits, among other things, a public official from soliciting anything of value "in return for . . . being induced to do or omit to do any act in violation of the official duty of such official . . . ." 18 U.S.C. § 201(b)(2)(C). Leading, of course, to the obvious question: "whether 'being induced' requires that the official intend to commit the violation of his duty when he corruptly demands something of value in return for being induced, or whether it is sufficient that he corruptly demanded the payment while knowing that it was for the purpose of inducing him to violate his duty." Turns out the answer either does, or doesn't, have something to do with Abscam and nuts and dried fruit, depending on whether you find the majority opinion or the dissent more persuasive.

Perhaps some facts will help. Valle was a classification officer at a DHS alien detention facility. His duties also included collecting intelligence on illegal activity. At one point, Valle told Fransico Gutierrez-Avlia, an alien detained at the facility, that he had removed criminal charges against Gutierrez and that Gutierrez owed him $20,000 for the favor. As it was, there never were any criminal charges pending against Gutierrez, and Valle hadn't actully done anything other than try to get the money out of Gutierrez. Nevertheless, the solicitation led to a sting, which in turn led to Valle's indictment and conviction on one count of § 201(b)(2)(C) bribery, and one count of extortion. His defense at trial was that he was attempting to collect a $20,000 business debt that Gutierrez owed to a mutual acquaintance.

On appeal, Valle argued that, because there were never any criminal charges pending against Gutierrez, and because he didn't have the power to remove any charges anyway, he didn't intend to actually do anything and therefore wasn't guilty of the bribery charge. And on that point, the panel parted ways.

The majority acknowledged that the plain language of the statute is ambiguous as to whether the official must actually intend to do the act for which he is soliciting the bribe. It therefore turned to legislative history surrounding a 1962 consolidation and revision of the bribery statutes and concluded that the history "shows that Congress did not intend for a violation of § 201(b)(2)(C) to turn on whether the official intended to commit a violation of his duty. Instead, it indicates that Congress intended the statute to be violated when an official took the bribe, knowing that it was given for the purpose of inducing him to violate his official duty, whether or not he actually intended to follow through with the violation." The majority also relied on Myers, a Second Circuit case arising out of the FBI's Abscam sting operation, which adopted that reading of the statute and held that "playacting" is not a defense.

Valle countered that Myers did not survive the Supreme Court's 1999 decision in United States v. Sun-Diamond Growers. There, the Court noted that bribery requires "a quid pro quo—a specific intent to give or receive something of value in exchange for an official act[,]" and "explained that the difference between a bribe under § 201(b) and an illegal gratuity under § 201(c) was that a bribe required a quid pro quo, or influence or inducement upon a public official, whereas an illegal gratuity only required some sort of reward in return for an official act." The majority disagreed that Sun-Diamond requires an intent to actually do an act in exchange for the bribe. It also found no conflict between Myers and Sun-Diamond, because the former involved bribery and the latter involved an illegal gratuity.

Having settled on its construction of the statute, the majority found the evidence sufficient to support Valle's bribery conviction. It characterized Valle's claim that there were never any pending criminal charges against Gutierrez as the same as the "playacting" claim in Myers, and rejected it for the same reason, holding "that an official may be convicted under § 201(b)(2), if he has corruptly entered into a quid pro quo, knowing that the purpose behind the payment that he has received, or agreed to receive, is to induce or influence him in an official act, even if he has no intention of actually fulfilling his end of the bargain." It also rejected Valle's argument that he had no power to remove criminal charges, concluding that "a rational jury could have inferred that Valle was capable of removing criminal charges from an alien registration file, whether those were past criminal history or pending charges."

Judge Wiener dissented. He agreed with Valle that, under Sun-Diamond, "§ 201(b)(2)(C) requires the government to prove beyond a reasonable doubt that the offending government official had the specific intent to provide a quid pro quo, viz., that he actually intended to be influenced in the performance of, or induced to take, an official act in exchange for money." And on that view, Valle was not guilty of bribery, regardless of whether he had the power to remove charges against an alien in the detention facility,
because it was factually impossible for Valle to remove criminal charges against Gutierrez for the obvious reason that no charges were ever filed and none were even contemplated! As noted by the panel majority, before Valle ever proposed the transaction, the Assistant U.S. Attorney had declined to bring charges against Gutierrez for alien smuggling. Inasmuch as (1) there were no charges pending or even contemplated against Gutierrez, and (2) Valle was fully aware that no charges were pending or would ever be brought, it was impossible for him to have formed the requisite specific intent to be influenced in, or induced to take, a specific act, viz., removal of criminal charges, in violation of his official duty. Stated differently, it was an objectively logical impossibility for Valle to have formed the specific intent to deliver on his part of Sun-Diamond’s indispensable element of a quid pro quo.



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