*2 Before SWYGERT and CUMMINGS, Cir Judges, cuit MARKEY, Chief Judge.* MARKEY, Chief Judge.
The jury found Arroyo and Sanchez guilty of conspiracy to corruptly solicit a bribe in violation of 18 U.S.C. 371 (1976) and Arroyo guilty of the substantive of- fense —the acts of corruptly soliciting and receiving the bribe in violation of 18 U.S.C. 201(c)(1) (1976).1 Motions for acquittal requested and a instruction were based on the view that § must be limited to soliciting a bribe before the public accused official has the “official act”2 intended to be influenced. The district court denied the motions and refused the request.3 We affirm.
1. 18 U.S.C. § * Chief States Court of Customs sitting nesses return for: ly acts, self or agrees three times the person “§ “(1) being “Shall be fined “(c) [*] [*] Judge indirectly, solicits, Whoever, to receive selected to be a designation. [*] [*] Bribery Howard T. 201(c)(1) (1976) provides: act; [*] [*] seeks, monetary equivalent other not more than [*] public [*] Markey accepts, and Patent asks, [*] [*] of value for him- officials official, of the United demands, [*] receives, [*] official or Appeals entity, and wit- [*] [*] direct- ex-, 2. The term “official act” is defined in 18 U.S.C. to run prisonment acy The district court’s both, any prisoned 201(a) (1976): United States.” pending, ing pacity, [Emphasis added.] thing fifteen months “ count. any question, matter, cause, suit, ‘official act’ means office of concurrently. was sentenced to controversy, any public official, or in his for not value, or which on each may honor, trust, imprisonment whichever more than fifteen place count, disqualified from may by judgment Sanchez was sentenced any eighteen of trust or with the sentences or official ca- in his decision or action is law be profit on, greater, months im- unreported. under the years, proceed- conspir- brought holding profit.” time be or im- or thing, Arroyo told him to see Sanchez the
Background day. next 1975, complaining witness Or- May of (Fernandez), a na- Fernandez Galindo lando Fernandez went to country this who came to of Cuba tive previous and related to CEDCO Sanchez a United Small applied for night’s conversation. When Sanchez asked *3 (SBA) guaranteed Administration Business loan, Fernandez the amount of the Fernan- Chicago to the went first Fernandez loan. replied $35,000.” dez When Fernandez (CED- Development Corporation Economic cost, it asked how much would Sanchez said CO), part by in the federal Model funded people paid “some of the had different functioning to Program and assist Cities amounts.” then mentioned Sanchez to Fer- guar- obtaining in SBA businessmen small nandez “a different amount.” through loans local banks. CEDCO anteed (i. About days e., two or three later on for Fernandez and package loan prepared August September 31 or the bank told Bank it First National to the submitted Fernandez had SBA authorized applied to SBA for a Chicago, which then $5,000. Christmas, only 1975, Prior to Fer- loan was an economic guarantee. The 90% CEDCO, nandez met at Sanchez and San- special type for eco- loan —a opportunity Arroyo chez him if he paid asked had $800. nomically disadvantaged individuals. replied When Fernandez that he had not 19, 1975, Arroyo loan offi- August On —a problems because getting in the loan the Fernandez with SBA4 —received cer proceeds, that' things Sanchez indicated worthiness credit plication, review would be “convenient or better” if Fernan- who re- supervisor, to his presentation paid dez the $800. in recommendations de- upon Arroyo’s lied January 8, SBA records indicated a should re- termining applicant whether $20,000 February disbursement of and a guaranteed loan. The loan received ceive a disbursement to Fernandez. 26, 1975, August authorization SBA 15, 1976, On March Fernandez told until later. returned of that Fernandez a trip to Puerto spoke Rico and went Fernandez» to On Sanchez, who told Arroyo him wanted to Sanchez, a business counselor CED- see speak with him money” about “the to CO, had ap- who told Fernandez the bank collect eight.” Immediately “the thereaft- loan, but that there would be no proved er, Arroyo called Fernandez and said he was authorization re- until SBA going stop by day to the next the only person said who ceived. Sanchez m., p. pick up money.” 5:00 “to Fer- help Arroyo, and ar- could Fernandez was reported nandez the situation to the Feder- to ranged Arroyo dine Fernandez Investigation (FBI). al Bureau of day. next (cid:127) On agents March FBI installed August 28, Fernandez went to recording equipment sound at Fernandez’ Arroyo. to told Fer- meet Sanchez CEDCO business, place gave Fernandez $500 home, Arroyo pick up giv- to at his nandez bills, marked Arroyo. waited for picked up him the address. Fernandez ing arrived, About minutes Arroyo five son, Arroyo’s and the three Arroyo and Arroyo Sanchez called Fernandez and said Arroyo at a and Fernan- dined restaurant. way. was on his arrived between application. loan When discussed the dez p. p. 5:00 m. and 5:30 m. Before Fernandez delay, Arroyo Fernandez asked about gave $500, oc- conversation repeated several times that Fernandez “did curred: “he any problems” not have because [Ar- application].” loan When “Fernandez: How much do I royo] had it have to [the give you? him any- if would cost Fernandez asked disputed here the SBA lie is not is a official” within definition of that term in 201(a), “department, agency of the United Sanchez branch” U.S.C. was a Government, “pub- conspirator. was a Well, matter, you any question, cause, told me. or act or suit, whatever Arroyo: $500 discussion figure, Fernandez Acknowledging Arroyo: Fernandez: because ensued: 800.” of business How much was that $800 said he could problems was the that? pay only and this agreed proceeding law, trust or in his [*******] time be be brought profit.” capacity controversy before any or which may, place may at “In for the order crime of a million prob- “Fernandez: have had committed, it is not Well, necessary that you how it is. It lems here. know have, bad, power have the you going so are perform the act that promises he approve to have another re- you’re going turn 35,000 money. What is necessary me. pesos for loan of royo wanted additional on the loan. plication, funds at the end of the fiscal Sanchez isn’t, were the what Fernandez it wasn’t brother, Fernandez did. was. up to for * * * Arroyo: Arroyo: Arroyo: Fernandez: Fernandez: Fernandez: Yes.” put the [*******] there is no fixed you No, you must and have him because or how much me! one who around told me. You must gave Arroyo the $500 money Sure. thanked I don’t How Yes, no, He set depends there 35,000 pesos? money, in his set the said that if Fernandez much know. Arroyo prepare understand how it it, understand, difficulty was listen, rate, on the coat Frank [Sanchez] does he rate. year. besides, you pocket. another should see know people excess of his work case one has. and Ar- * * * there only pay my As was in return for Anthony money represented to Orlando Fernandez that And that Arroyo’s being previously been defined.” this thony Arroyo royo elements: ance of an official act as that thony Arroyo represented or caused to be solicit, seek, accept, receive the ness Administration. officer of charged money his “[T]he reasonable doubt each *4 that “Two, that the defendant Anthony Ar- defined money ******* the did government is for the money in the indictment a three, One, the United States Small Busi- influenced from Orlando Fernandez. that was representation of some official act.” purpose law; must receive and ask, the defendant An- the defendant An- during solicit demand, exact, namely, prove beyond of influencing his the time following term has perform- agree that the receive a loan leaving, Special Agent Gregorio was The Requested Defendants’ Jury Rodriguez of the FBI arrested him.5 Instruction records indicated Fernandez SBA The district court refused this requested repay was and in May, unable loan instruction, paraphrases the language purchased it from the bank. SBA court in Woelfel v. United F.2d 1956): Jury Court’s Instruction District you “If believe the defendants’ portions jury charge The material requests for or gratui- solicitations are: ty were made until after the employ- 201(c)(1)], used in this ee power “As section had exhausted his of decision or [§ ‘official act’ term means decision action in connection loan and Rodriguez against “Mr. testified that: stated for and that what he had done was he knew what was law.” me that he arrested ing from any prior promise Brewster, United v. under were not made U.S.App.D.C. 1, gratuity (1974): that a would understanding then the defendants’ ac- forthcoming, (c)(1) The bribery prohibits “3. section transgression constitute tions did not receipt of value ‘in return not guilty.” them you (1) must find for: perform- act,’
ance of gratui- while the Contentions Appellants' ty (g) prohibits receipt section of any- thing of value ‘for or because of any contend that it is not Arroyo and Sanchez official act performed to be 201(c)(1), supra 18 U.S.C. § a violation of ” * * * him.’ accept when the note solicit (g), “4. The gratuity section unlike commenced after activity solicitation (c), applies to past performed his completely had public official ”* * official acts as well as future ones. They quote from Woelfel official action. States, supra: United “However, the defendant entitled to Issue legal on the ef jury
have the instructed erred, Whether in deny- the district court contention evidence— fect ing the acquittal refusing motions for the request they that if believed requested instruction, turns on the un- made gratuity the accused derlying question of whether § his power until had exhausted after he *5 applicable only to solicitations oc- question the mat decision or action on or curring of performance before actual the him, ter and was not under before made official act influenced. intended to be any prior understanding -or promise forthcoming, gratuity a would be then his OPINION a request transgression did not constitute We This is a sound construc the of statute. hold that district court did Further, Judge act and the District not err. the jury tion of the we hold jury. given charged While instruction the district court should have so accu be contemptible, rately 201(c)(1) such a would stated the law. solicitation Section indictable, for it would be every it would not be cannot limited in case to bribery prior for or ac solicitations possible occurring not be ‘decision before actual per employee tion’ to be affected formance of of an the official act without de later, unanticipated gifts, stroying however re the intent of the statute.7 warding they might be.” F.2d at [237 contentions, Arroyo and Sanchez’ if ac- 488.] cepted, encourage very would conduct Further, Arroyo Congress and Sanchez assert that proffered condemned. Under the Arroyo gratuity, a interpretation, public have solicited a official could hur- 201(g) (1976),6 riedly surreptitiously perform violation of 18 U.S.C. and § his offi- act, bribe, 201(c)(1), quot- a cial and corruptly not in violation then solicit § and en- (1976) provides: 201(c)(1) 201(g) “applicable 7. Section 6. 18 has been held § U.S.C. to a situation where the advice recommenda Whoever, official, public “(g) being a for- employee tion of the Government official, involved public mer selected to be a * * * though would be official, influential even provided by than as otherwise employee authority did not have the to discharge duty, make proper law for the official Heffler, asks, exacts, final demands, decision.” United States v. directly indirectly (3d denied, seeks, receives, solicits, accepts, agrees 926 cert. U.S. 89 S.Ct. value for for or L.Ed.2d 480 receive himself (1969), quoting Krogmann act be from because of or to United him; 1955) performed by (prose F.2d bribe). ******* offering cution for not more than “Shall be fined imprisoned years, not more than for two both.” bribe, by operative creating impres- courage language * * * “[wjhoever, briber’s that his potential mind sion * ** * * * solicits any- yet act had not been taken.8 * ** thing of value for himself in re- Dealing is what did here. That * * * turn program economically loan with a performance official act.” “Official disadvantaged, Arroyo approved Fernandez’ 201(a), act” defined in supra note as * * * * * * talking worthiness without ever credit “any action which may * ** days the loan and within a few him about time pending be application. receiving the loan The loan official, any public in his official capacity ** August Yet on was authorized (Emphasis added.) Congress when Fernandez asked having used broad provi- in these sions, loan, we delay Arroyo express- find no intent to limit their cover- age to future Congress acts.9 it,” did not in- ly falsely represented that “he had public official, tend who had solicited creating appli- impression false encouraged a bribe with a repre- false cation was still before him. Fer- sentation that futuro, the official act inwas nandez, unsophisticated immigrant escape liability for bribe-solicitation by shores, seeking our to enter the eco- proving that he had successfully hidden the a small nomic mainstream as business en- past truth bribe- gained could have no im- trepreneur, other payer. Indeed, the most pression. sophisticated Arroyo and Sanchez seize upon words gained other. native-born could have no “being indicating influenced” Then, when Fernandez asked if it would 201(c)(1) requires that paid bribe him, “No, did say, “cost” act, influence a future arguing that one dealing not. You are Unit- course cannot be influenced to do already what has and we ed Government don’t do argument been done. The is without merit things way,” or words to that effect. case, in this disregards the lead-in said, return- “See Sanchez.” The *6 phrase “in return for.” phrase That brings for-being-influenced element of the offense play into purpose the of the bribe and thus correctly by the court in was stated district the mind of the bribe-payer. Though more the jury charge: “that Antho- defendant careful draftsmanship might have added ny represented rep- be caused to “or apparently being” “being,” after the to resented Orlando Fernandez that this prohibits payment solicitation of “in Arroyo’s was in for Anthony return return for being influenced.” As illustrat- being performance of an by 201(c), gravamen ed the § of the offense act, previously as that term has in the corrupt solicitation, lies which would been defined.” fail if the solicitee were told the truth.10 began every public solicitation here within to 8. The official who solicits (Sanchez) (Arroyo) hours after the hours of in return value for influenced performance Arroyo’s of text, undisclosed performance any in his of action which at As discussed in the is act. the test any pending. presence time be The mere of the actually performed the official act was whether “performed” 201(g) word in § cannot be day or one one minute before or after the limiting 201(c)(1) as viewed so § as to immu- solicitation, but whether the solicitation was prosecution nize from corrupt thereunder corrupt. payment everyone solicitation of for what the solicitor believes to be a bribe. dissenting opinion correctly 9. The states strictly interpreted. criminal statutes be must dissenting 10. The states “a hold, however, 201(c)(1) applicable To is designed prevent statute is to official decisions when the bribe has solicitor hidden fact corrupt made as the of result longer influence.” We that official action no is does designed expand prevent beyond corrupt view the statute as to not ing. Reading, that section its literal mean- must, by 201(a) government solicitation as we defini- officials. The § dis- 201(c)(1), 201(c)(1) 201(g) “official as tinction between § act” into indi- § § lies in text, 201(c)(1) applicable solicited, prohibiting in the § cated makes what is the former solici- solicited, exchange statute, in The broad paid, and of the Bribes are purpose designed to accomplish,12 paying he is for. payer what the believes preclude the narrow sought by construction create the always will The bribe solicitor Arroyo and Sanchez.13 sought yet is to the action impression The contingent on the bribe. come and is Arroyo and Sanchez’ reliance on Woelfel States, solicitation, which the section is di- supra, misplaced.14 United against Un- here, rected, same, yet-to- person like Fernandez whether by solicited Woelfel knew performance objectively true or impression be come (a official act change government order in a Further, 201(c)(1), listing one of false. initial, contract) the time of Woelfel’s elements, speaks of “be- the “in return for” solicitation. in his ing influenced added). (emphasis act” It does not us, Unlike the situation before there was influenced- to “being perform speak representation no false government official Woelfel that he “had” the matter official act.”11 bribes, prohibiting quoted approval solicita- this court tation of the latter from Kemier v. States, gratuities. (1st 1942): Whether the solicitation suc- tion of United fail, act had ceed or and whether the official purpose “The clear of the statute is to secretly performed, change been cannot what protect public consequences from the evil dissenting opinion appears was solicited. The corruption in the service. Thus the recognize that whether the official act could to gravamen of the offense described therein is prosecution be influenced is irrelevant giving offering of a bribe to a e., payer 201(b), under i. that Fernandez bribe acting on behalf of the United States for the (had FBI) reported he not to the could have purpose influencing official conduct. Ob- paying sought prosecuted for the bribe been here, viously give no one would or offer a bribe suggests that but then could not expected gain advantage unless he thereby, some 201(c)(1) prosecuted soliciting be under attempting gain and since an ad- The view that § the same bribe. merely vantage this means is the evil which the resulting seeks to shield decisions designed prevent, statute is it can make no influence, appear would to create an absolute difference if after the act is done the doer official, who solicits a bribe defense another, discovers that for some reason or it a mistake on his acts, prove can before he but who decision part or mistake on the influenced because he would have part agency of some officer or of the United event, made the same decision in there was no occasion for official whose bribe solicitation was refused him to have done it.” F.2d at [235 125.] favorable to the solicitee and whose decision “consequences corruption pub- influenced, could not then have been and for where, here, equally lic service” are evil (unknown soliciting bri- official who public official solicits the bribe and the bribe decide, ber) authority has no whatever to solicitee believes the official is decide, anything premis- not in fact does influenced. es. *7 legislative and Sanchez cite no histo- ry supporting a narrow construction and we If the focus be on the sole fact that contrary, have found none. On the when the already performed, official act has impossible been is present (Act statute was enacted in 1962 of ground distinguish on that alone to 87-849, October Pub.L. No. 76 Stat. 201(c)(1) 201(g), encompasses which § § section-by-section analysis any official solicitation “for or because of * * act Report * Senate stated: “The term 'official act’ is performed.” to be 201(c) Distinctions be- defined to include decision or action taken 201(g) appear tween § § by capacity official in his as such.” by differing language employed Congress. (Emphasis added.) S.Rep. No. 87th The latter section includes “otherwise than as Cong., (1962), reprinted (1962) 2d Sess. U.S. by proper provided discharge law for the of Admin.News, Cong. pp. Code & duty” and “for or because of offi- Thus, perceive by Congress we no intent performed by performed cial act or to be him.” past exclude acts from the definition of “offi- “for himself or for The former includes cial act.” and, entity” primary impor- other tance, of (see “corruptly” the word discussion re (1952). 14. Woelfel involved 18 U.S.C. § text, ). infra Brewster section, present 201(c)(1), When the § was en- Troop, (7th “corruptly” F.2d 12. In United States v. acted in the word was insert- Isa, 1956), involving parallel provision ed. See United States v. (now 201(b)), prohibits offering § bribes control, part still in his and no belief on the the defendant’s subsequent behavior bribe-payer that he potential gives in narrow focus the Government’s being in return for Woelfel’s solicited case. a future act. influenced to do Hence Woel- “January 7—Woelfel by telephone in- Further, distinguishable fel is facts. Potter, formed at his residence in Atlan- highlights misrepresen- the distinction ta, apparently specification tation element. The bribe-solicitee in Woel- would be changed to flooring, wood block fel, Potter, gave Woelfel “no answer.” Nor commented, and when Potter ‘That’s is that surprising. reaction Potter knew fine,’ said, ‘Yes, Woelfel but want some- performed, the official act had been thing more than “that’s fine” later on. gave and that he “later on” would youDo know what I mean?’ Potter gave necessarily gratuity. be a The solicitation him no 485-86, answer.” F.2d at [237 clearly in Woelfel was for a gratuity, which emphasis added.] safely ignore. Potter could The solicitation Arroyo and Sanchez’ reliance on United bribe, clearly in the case us was for a Brewster, States v. supra, is equally mis- e., i. perform- “for influenced First, placed. portion of the opinion ance,” which Fernandez was led to believe they quoted (and quoted above) part ignore only peril he could at to his loan. defendant argument Brewster’s to the When the official act has been Second, pellate court. say court did not solicitation, at the time of the opinion in its it “accepted agreed the distinction between the facts of this with this distinction” as and San- Woelfel, case and those of and the distinc- Third, chez maintain. and most significant, 201(c)(1) tion between 201(g) as § Brewster did not involve a misrepresenta- well, lies in the nature of the solicitation. tion past that a official act was in futuro. corrupt jury Here it was as the found. Arroyo and Sanchez’ attempt to take the Woelfel, it was not. The difference lies in quoted portion of the opinion Brewster out Fernandez, understanding by created context, apply and to it to a different set Arroyo, yet Sanchez and that the act was facts, must fail. performed, understanding and the The opinion did, however, in Brewster set Woelfel, by Potter created that the act had forth the many distinctions between performed. been states: 201(g), pointing out that “The prosecution’s begins case in De- primary distinction requisite lies in the cember, 1954, proposal with a initiated degree (165 of criminal intent U.S.App.D.C. charge prime officer in to amend the 71): 506 F.2d at contract so as to substitute wood block requisite “The intent to constitute ac- flooring for the resilient covering floor cepting a accept bribe is to thing originally specified. He directed Woelfel value ‘corruptly’ (c)(1); under section replace- ascertain the cost of a wood comparable intent under the gratuity sec- ment way and in this Woelfel met the (g) accept thing Potter, of value representatives, including one of a ‘otherwise than provided flooring company wood law for Georgia. On proper January discharge duty.’ of official brought samples 1955 Potter the face of the statute employer’s product compara- of his to Charlotte the two *8 tive clauses equivalents. and discussed them with Woelfel. are not Satis- Con- gress fied that the did not wood blocks should make a use the same language in defining more flooring serviceable and mean a criminal intent for the two of- substantial fenses. monetary saving, the officer ‘Corruptly’ bespeaks a higher de- charge gree ordered the defendant to write of criminal knowledge purpose and the Corps Engineers recommending than does ‘otherwise provided than as by change. This January Woelfel did on law for the proper discharge of official promptly 5 and the change accepted duty.’ It appears entirely possible that a by Engineer Corps. A chronicle of official could accept a thing of
657 provided by regard than as law cial action with value ‘otherwise to the loan applica- discharge duty,’ proper tion had been exercised and terminated be- ‘corruptly.’ not it at the same time do any attempt fore by was made either San- Congress obviously prohibit wished to chez or to solicit a bribe. accepting things of value public officials Two sections of the statute which deal intent; criminal it degree with either bribery, 201(b) sections (c), are so, a legislated did but it difference in the parallel provisions which prohibit the re- correspond- criminal intent and requisite quest for and giving of bribes. Two other ingly penalties attached.” sections, (f) (g), parallel also provisions, found, jury finding The and its is not cover the giving and receipt gratuities. us, that the contested bribe solicita- It is most important to distinguish properly requisite was here made with the cor- bribery between the sections, and gratuity rupt intent. distinction made in the statute but not in 201(c)(1), 201(g), is applica- majority’s opinion. Section Although both the facts of case. Accordingly, ble to this types activity are prohibited under the judgment district court is af- statute, bribery is clearly considered to be firmed. It is so ordered. the more serious offense as by evidenced penalties.1 the difference in
AFFIRMED. bribery The punish sections those who SWYGERT, Judge, dissenting. Circuit would substitute the wishes of an interested blameworthy as the As conduct of the party “objective evaluation and un- be, my simply defendants judgment biased on the part of those who does not constitute the commission of an participate in making of official deci- 201(c)(1). offense defined section Labovitz, sions.” United 251 F.2d would therefore reverse. (3d 1958). Cir. The purpose of these prevent sections is therefore to cor- August Arroyo, On 1975 defendant ruption decision-making process. of the loan officer with the Small Business Ad- ministration, approval recommended 201(b) may Section be violated even application Fernandez’ for an SBA though the official corrupted Arroyo’s proved supervisor loan. concurred offer, or purpose of the bribe was in that recommendation on the same day. unattainable,2 or though even there was application The loan was then processed actually no occasion to seek to influence an channels through usual and the case, however, official’s conduct.3 In each eventually paid to Fernandez. the defendant must intend to influence the codefendant, August Arroyo’s bribee. San- Kemler v. United 133 F.2d chez, arranged (1st talked to Fernandez and 1942). Similarly, offi- Arroyo. him to see Fernandez first met charged cial violating 201(c) section days on two after Ar- must intend to solicit something royo approval had recommended of the influenced, of value in return Thus, Arroyo’s is, authority loan. to take offi- permit intend to himself to be influ- disparity penalties appears holding any honor, trust, profit office of quotes supra. at footnotes 1 and In addition under the United States.” greater periods maximum of incarceration 201(f) (g), One convicted under section fines, government officials convicted of hand, the other be fined not “[s]hall more than 201(c)(1) may violating disqualified $10,000 imprisoned for not more than two government employment. from further years, or both.” 201(b) (c), 1. One convicted under section See, g., Troop, e. United States v. 235 F.2d sections, be fined not more “[s]hall monetary than or three times value, equivalent thing whichever See, Labovitz, g., e. United States v. greater, imprisoned for not more than fifteen *9 (3d 393 Cir. both, years, disqualified 658 Irwin, Despite appearances, v. 354 F.2d
enced. United States the defendants’ con- denied, 192, (2d 1965), cert. 383 195-96 accept- duct was solicitation and 1272, 16 308 L.Ed.2d U.S. S.Ct. ance gratuity of a for an per- act “official. (1966). formed,” transgression a of 18 U.S.C. 201(g). Brewster, See United States v. bar, Arroyo’s part case at In the U.S.App.D.C. (1974). F.2d 62 process already had been decision-making Such conduct does not constitute a violation represented at the time it was completed 201(c)(1). of section might bring a bribe favorable No evidence was introduced to decision. any way could have
show or influenced the decision that had
altered
already been made. The matter was com-
pletely out of his hands. therefore fol- have the requisite that he did not
lows for a conviction necessary
intent under sec- 201(c). v. In Woelfel United COHEN, Plaintiff-Appellant, Helen A. the Fourth Circuit held government employ- that where a federal requests payment ee’s “was not made ILLINOIS INSTITUTE OF TECHNOLO- employee] until after had GY, [the not-for-profit Corpora- an Illinois power exhausted his of decision or action on tion, Brophy, James J. John T. Rettalia- him, question or matter before and was Maynard Venema, ta and P. Defendants- any prior promise not made under or under- Appellees. standing gratuity that a would be forth- No. 77-1477. coming,” request did not constitute a violation of the statute. I would United States Court of Appeals, holding follow Fourth Circuit’s Seventh Circuit. present case. Argued Jan. misrepresented, Both and Sanchez implicitly explicitly, if not that the decision Aug. Decided application on the loan was still pending, As Amended on Denial of Rehearing and misrepresentation was made to Rehearing Aug. Banc application Fernandez after proved. emphasize again that a bribery designed
statute is prevent official deci- corrupt
sions made as a result of influence.
Accordingly, repre- when a prospective
sents to a briber that decision
is still when in fact it already has made, misrepresentation
been takes on conduct,
the character of fraudulent but it
does not constitute solicitation of a bribe as 201(c)(1).
defined plain
of that section is unambiguous. meaning ought
Its literal expanded not be
by interpretation majority done, as the has statutory
for it is a cardinal rule of con-
struction that a criminal statute must be
strictly construed. United States v. Wilt- (5 Wheat.) 76, 95-96,
berger, 18 U.S. 5 L.Ed. (1820).