UNITED STATES of America, Plaintiff-Appellee, v. Gjergj GJIELI, (81-1087), Nickola Lulgjuraj, (81-1088), Zeff Lulgjuraj, (81-1089), Defendants-Appellants.
Nos. 81-1087, 1088 and 1089.
United States Court of Appeals, Sixth Circuit.
Sept. 21, 1983.
Rehearing and Rehearing En Banc Denied Dec. 14, 1983.
717 F.2d 968
Richard A. Rossman, U.S. Atty., John N. Thompson, Jr., Sheldon Light, (argued), Asst. U.S. Attys., Detroit, Mich., for plaintiff-appellee in all cases.
John J. Pomann, argued, Westland, Mich., for defendants-appellants in No. 81-1088.
Evan H. Callanan, argued, Westland, Mich., for defendants-appellants in No. 81-1089.
Before LIVELY and KENNEDY, Circuit Judges, and WILHOIT,* District Judge.
KENNEDY, Circuit Judge.
Defendants Gjergj Gjieli, Nickola Lulgjuraj and Zeff Lulgjuraj appeal from their jury convictions of bribery of a public official,
I.
The transcript of the trial, including taped conversations, reveals an unusual tale. Robert Van Hengel, an agent of the Bureau of Alcohol, Tobacco and Firearms of the United States Treasury Department (ATF), was a regular customer at a bar in Detroit where one of the defendants, Gjergj Gjieli, was employed as a bartender. Gjieli was interested in purchasing a short wave radio set from Van Hengel. On June 11, 1980, during negotiations over the radio which Gjieli agreed to purchase, Gjieli suddenly told Van Hengel that he had $100,000 for him, plus the biggest present he had ever received. When questioned, Gjieli wrote the name “Zef [sic] Lulgjuraj” on a slip of paper and handed it to the agent. Gjieli then stated that Lulgjuraj was in the State Prison of Southern Michigan at Jackson, Michigan, (SPSM or Jackson) and that “his people” wanted him out so he could return to his homeland, Albania.1 Van Hengel warned Gjieli that such an offer to a federal agent could get him in serious trouble. Gjieli nevertheless suggested that Van Hengel might have contacts and perhaps could arrange a break-out or transportation for Lulgjuraj who could escape at some unguarded moment. Van Hengel told Gjieli that he would have to think about the matter and would contact him later.
The next day Van Hengel reported the conversation to his supervisor in the Detroit office of ATF. On June 13, Van Hengel met with Special Agent Jim Covert of ATF Internal Affairs and a detective sergeant of the Michigan State Police. On June 16, Van Hengel met with Covert and the Michigan State Police sergeant as well as an FBI agent.2 Van Hengel was fitted with a body recorder and a radio transmitter at this meeting. A short time later Van Hengel went to the bar and engaged Gjieli in conversation which was secretly taped. Gjieli assured Van Hengel that the $100,000 would be “cash on the line.” A test run was discussed, with Van Hengel suggesting that Lulgjuraj would be “moved around a little bit to show what we can do.” Van Hengel again requested time to think over Gjieli‘s proposal.
On July 10, after several weeks in which he had no contact with Gjieli, Van Hengel returned to the bar with another ATF agent. A bartender told Van Hengel that Gjieli no longer worked at the bar having quit to return to Albania with his parents. Van Hengel returned to the bar the next day to get Gjieli‘s telephone number, but the bartender had not located it. On July 13, Van Hengel again went to the bar. Neither the bartender nor the owner of the bar was able to supply Gjieli‘s telephone number. Efforts to locate Gjieli over the next few days proved futile.
On July 18, Van Hengel and Covert met with an Assistant United States Attorney. It was agreed that a “ruse” was needed to signal Gjieli that Van Hengel was ready to deliver.3
To effect the “ruse” the Assistant United States Attorney presented a request for a writ of habeas corpus ad testificandum to a federal District Judge, representing that Zeff Lulgjuraj was a witness in an arson case and that he would be taken from Jackson State Prison to appear before a federal
Van Hengel got into the car with Lulgjuraj and initiated a conversation about “George,” the bartender at De Luca‘s Bar. Lulgjuraj responded that he knew him and had last talked to him “about 5, 6 months, 5 months.” He said he knew nothing of any conversation between Van Hengel and George. Van Hengel suggested that the next time Lulgjuraj talked with Gjieli, “You tell him we had you out. This was my idea to get you here. Just tell him the guy he talked to in the bar, in De Luca‘s, we had you out. Airplanes were here. OK?” When Van Hengel mentioned “the hundred thousand,” Lulgjuraj revealed no apparent knowledge of Gjieli‘s offer to Van Hengel. When asked specifically if “the hundred thousand is there,” Lulgjuraj replied, “I believe so. If he told you that, that‘s you know, regarding help me, something.” Lulgjuraj told Van Hengel to call his home and ask for his son Nick. The meeting ended with Lulgjuraj promising to call his son Nick to tell him to get in touch with Van Hengel either that night or the next day.
Van Hengel received a telephone call from Nick Lulgjuraj later on July 22 and returned the call the next day. After talking with Nick, Van Hengel received a call from Gjieli who said he was returning to Detroit on July 24. Late in the afternoon of the 24th Van Hengel and another ATF agent met Gjieli and Nick Lulgjuraj at a motel in Detroit and discussed the payment of $10,000 “front money.” The same evening Gjieli and Nick delivered $10,000 in currency to the agents. Both meetings were taped on hidden recorders. By prearrangement Nick Lulgjuraj delivered $90,000 in currency to Van Hengel at a motel room in Detroit on August 5. After monitoring the meeting and determining that the delivery had been made, Agent Covert entered the room and arrested Nick Lulgjuraj. Gjieli was arrested the same day in New York.
On August 25, 1980, a federal grand jury in Detroit indicted Gjergj Gjieli, Nick Lulgjuraj and Zeff Lulgjuraj of conspiracy to bribe and bribery of a public official.4
Defendants assert that it is not a federal offense to offer or to pay a bribe to an official of the United States for the performance of an act which would violate state law but which does not violate a statute of the United States and is not a part of an official duty. Because Van Hengel had no duty with respect to the custody of a state prisoner and could not use his official position to effect the escape of Zeff Lulgjuraj the defendants contend that the statutory elements of
Title
(b) Whoever, directly or indirectly, corruptly gives, offers or promises anything of value to any public official or person who has been selected to be a public official . . . with intent—
(1) to influence any official act; or
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(3) to induce such public official . . . to do or omit to do any action in violation of his lawful duty;
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(e) . . . Shall be fined . . . or imprisoned . . . or both, and may be disqualified from holding any office of honor, trust, or profit under the United States. (emphasis added)
The defendants in the present case were indicted and convicted of violating subsection (3) of
Three statutory elements must be satisfied to establish a
A. Public official requirement
The definitional section of the statute,
(a) For the purpose of this section:
“public official” means Member of Congress, the Delegate from the District of Columbia, or Resident Commissioner, either before or after he has qualified, or an officer or employee or person acting for or on behalf of the United States, or any department, agency or branch of Government thereof, including the District of Columbia in any official function, under or by authority of any such department, agency, or branch of Government, or a juror; and
“person who has been selected to be a public official” means any person who has been nominated or appointed to be a public official, or has been officially informed that he will be so nominated or appointed; and
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The indictment in this case satisfies this definition of a “public official” because Van Hengel is a regular employee of the Bureau of Tobacco, Alcohol and Firearms, a division of the Department of Treasury.
The dissent accepts the defendants’ contention that the phrase “in any official function” in
Contrary to the dissent‘s view, we conclude that
To hold otherwise would be to make the words “officer and employee” completely nugatory.
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If Congress had intended that an officer or employee must be acting in an official function to violate § 201, why were the words “officer or employee” inserted in the statute? The term “person acting for the United States in an official function” is broad enough to include officers and employees. We do not believe that Congress so intended, but rather a distinction was drawn between officers or employees on the one hand, and persons acting for the United States in an official function on the other. Statutes must be interpreted as to give meaning to every portion thereof.
Second, this reading of the statute is more consistent with the legislative purpose of preventing the corruption of a federal official. See Kemler v. United States, 133 F.2d 235, 238 (1st Cir. 1942). The potential for corruption occurs when bribes are offered to federal employees with the intent that the employees use their federal office or position in an unlawful manner. For persons who are not federal employees the potential for corruption is limited to when they are acting “for or on behalf of the United States . . . in any official function.”
Third, this distinction is recognized in
The term “public official” [was] broadly defined to include officers and employees of the three branches of government, jurors and other persons carrying on activities for or on behalf of the Government. (emphasis added)
S. Rep. No. 2213, 87 Cong., 2d Sess. (1962) reprinted in [1962] U.S. Code Cong. & Ad. News 3852, 3856.
Fourth,
The dissent‘s construction of
The defendants contend that Blunden v. United States, 169 F.2d 991 (6th Cir. 1948), a case decided prior to the 1962 amendments to § 201, is dispositive of this issue. While language in Blunden does in fact support the defendants’ contentions, we are not persuaded that such language controls our construction of the present revision of
The 1948 revision of
Neither the Supreme Court nor the Sixth Circuit has addressed
The defendants in Blunden were charged under the 1948 act with the parallel of the 1962 subsection (1) violation; that is, offering things of value to a known employee of the United States “with the intent to influence his decision or action in a matter or proceeding within . . . his official capacity . . . .” 169 F.2d at 993. Blunden and others wished to purchase surplus motors from the Army. Flisek was the chief civilian clerk at the depot where the motors were stored. He had authority to move some motors at the depot to other posts or stations in the United States but no authority to ship surplus motors. However, he told defendants he would see that they got a preference over other buyers in the sale of the motors. Defendants agreed that Flisek would get an equal share of the profits from motors obtained through his efforts. He also arranged to secure forms and made out a false bill of lading. Later he had the transportation division of the depot ship and bill additional motors to defendants. The information charged defendants “with giving to Flisek, knowing him to be an employee of the United States of America, certain things of value with the intent to influence his decision or action in a matter or proceeding within the jurisdiction and control in his official capacity as [chief clerk].” Id. at 933. The Court held that since Flisek “lacked the authority and jurisdiction to act” in the sale of the motors the statute was not violated, even though Flisek‘s position gave him the opportunity to ship government property illegally. The Blunden Court noted that defendants could successfully have been charged under the same section—but were not—with the intent to influence Flisek to commit a fraud on the United States. That statement makes it clear the Court was not relying on any failure to meet the public official definition because of an “official function” limitation. Such a limitation on the definition of public official would have prevented prosecution for fraud as well.
The Blunden Court was, therefore, never faced with the issue of whether the federal employee involved was a “public official” as now defined in
The defendants in the present case were not indicted for bribing a public official with intent “to influence an official act” within the public official‘s capacity. Instead, they were indicted for bribery to induce a public official to violate his lawful duties. There is simply no requirement here that the act induced fall within the federal employee‘s official function. Blunden does not hold otherwise.
Nor is Birdsall v. United States, 233 U.S. 223 (1914), also decided before the 1962 amendments to § 201, contrary to our construction of the present statute. Birdsall, like Blunden, is also an “official act” case which would not now be brought under
In Birdsall, the Supreme Court addressed whether gifts made to and received by officers in the Department of Indian Affairs, for the purpose of influencing reports and recommendations to federal judges with regard to sentences of persons convicted for violating the liquor laws, constituted bribery. The then effective version of § 201, with respect to the acceptance of bribes, provided that:
[W]hoever, being an officer of the United States, or a person acting for or on behalf of the United States, in any official capacity, under or by virtue of the authority of any department or office of the government thereof, [accepts money] with the intent to have his decision or action on any question, matter, cause, or proceeding which may at any time be pending, or which may by law be brought
before him in his official capacity, or in his place of trust or profit, influenced thereby, [shall be punished as stated]. (emphasis added)
Birdsall, 233 U.S. at 230. Another provision, as to offering a bribe, used language similar to that quoted above in defining the official “action” of the recipient and the character of the action intended to be influenced. The bribe offering statute continued the intent requirement, as does the present version of
The Supreme Court‘s judicial qualification of “action” as “official action” was codified in subsequent versions of § 201 in the language “official act,” and is presently found in
B. The requirement of a promise, gift or offer of something of value to a public official
The indictment alleged that defendants gave $100,000 to Van Hengel. This second requirement is clearly satisfied and is not an issue in this case.
C. Intent to induce the public official to act in violation of his lawful duty
The third requirement for a
1. Intent: Van Hengel was approached by the defendants because he was a government employee and because they erroneously perceived that he had the power to effect the release of Zeff Lulgjuraj from state prison as a result of that status. Although erroneous, defendants’ beliefs satisfy the intent requirement of
In Krogmann v. United States, 225 F.2d 220, 225 (6th Cir. 1955) the Court held that § 201 was applicable where the advice and recommendation of a public official would be influential even though the public official did not have the authority to make the final decision. Indeed, Krogmann explicitly recognized that it was the intent of the briber which was controlling. The defendant in Krogmann claimed that there was insufficient evidence to establish that the defendant public official had authority over the property which was to be sold as surplus. After reviewing the evidence, the Court explained that the briber‘s intent to corrupt and not achievement of the desired result was the controlling consideration:
In addition, the offense charged was complete upon the payment of the money to [the bribee] with the intent to influence his action with respect to the sale of surplus property. The evidence was sufficient to show that appellants were interested in the surplus property at Oak Ridge and made the payments for the purpose of influencing [the bribee‘s] action with respect to such property. Whether the attempt was successful or what the officer did in attempting to perform his side of the bargain are accordingly immaterial. Wolf v. United States, 6 Cir., 292 F. 673, 675; Curtis v. State, 113 Ohio St. 187, 191, 148 N.E. 834; Underhill on Criminal Evidence, 4th Edition, Sec. 715.
In light of Krogmann, the absence of any reasoned analysis on the issue in Blunden and the 1962 amendments to the statute, we believe we are free to consider this issue now.
Congress enacted
For these reasons we choose to follow the reasoning of the Second, Seventh, Fourth, Fifth and District of Columbia Circuits, all of which have imposed § 201 liability on bribers who erroneously perceived that the bribed public official had the authority to
2. Lawful duties: Van Hengel was given $100,000 by defendants to effect the escape of Zeff Lulgjuraj from state prison, an act that would constitute a violation of
In Birdsall v. United States, 233 U.S. 223 (1914), the Supreme Court stated that lawful duties and official acts extend beyond those imposed by statute to include duties and acts imposed by written rules and regulations. Id. at 231.
The violation of this Michigan criminal law by Van Hengel would constitute a violation of his lawful duties not to engage in criminal conduct,
The indictment in this case satisfied all of the requirements imposed by the plain language of the present version of
II. Supervisory Powers and Due Process Violation:
All these defendants assert that their convictions should be barred under due process principles or in the exercise of this Court‘s supervisory powers because of the nature and extent of the involvement of the government in the bribe scheme.9
In particular, defendants urge that the conduct of the Assistant United States Attorney in deceiving the United States District Judge and the ATF agents in impersonating a United States Marshal before Michigan prison authorities as well as certain remarks of the prosecutor before the grand jury were so outrageous as to require reversal.
This Court‘s inherent power to supervise the administration of criminal justice, McNabb v. United States, 318 U.S. 332, 340 (1943), permits it to “formulate procedural rules not specifically required by the Constitution or by Congress.” United States v. Hasting, 461 U.S. 499, 103 S. Ct. 1974, 1978, 76 L. Ed. 2d 96 (1983). The exercise of such supervisory powers serves three basic purposes.
[1] [T]o implement a remedy for violation of recognized rights, McNabb, supra, 318 U.S. at 340; Rea v. United States, 350 U.S. 214, 217 (1956);
[2] To preserve judicial integrity by ensuring that a conviction rests on appropriate considerations validly before the jury, McNabb, supra, 318 U.S. at 345; Elkins v. United States, 364 U.S. 206, 222 (1960);
[3] And finally, as a remedy designed to deter illegal conduct, United States v. Payner, 447 U.S. 727, 735-36 n. 8 (1980).
Hasting, 103 S. Ct. at 1978. Accordingly, the federal court‘s supervisory powers include the authority to remedy and deter
In Hasting and Payner, the Court reviewed attempts by lower courts to exclude evidence and reverse convictions using supervisory powers. On both occasions the Court held that the courts of appeals should not have reversed the conviction. In Payner, key evidence against defendant was seized by the government in an illegal search of a third person‘s briefcase. Government agents broke into a locked briefcase and stole records. Defendant urged that although the illegal search did not violate his personal fourth amendment rights, the Federal District Court was required to exercise its supervisory powers to suppress the evidence against him which was tainted by the theft of the records in order to deter similar misconduct in the future and prevent the judicial system from tacitly acquiescing in such behavior. The Supreme Court disagreed finding the use of supervisory powers unauthorized where the illegal conduct did not violate the defendant‘s personal constitutional rights. Payner, 447 U.S. at 734-35 n. 7, 736 n. 8. See also, Id., at 737 n. 9. In Hasting, the Seventh Circuit had held that the prosecutor violated defendants’ fifth amendment right to remain silent when in summation he commented on their failure to submit a defense. The Supreme Court rejected the use of supervisory powers to set aside the convictions (and remand for retrial). Reversal of otherwise valid convictions, the Court reasoned, was an improper method of punishing the prosecutor or deterring further misconduct. The Hasting Court found overwhelming evidence of guilt and concluded that any error occasioned by the prosecutor‘s argument was harmless.
The Hasting Court supplied guidelines for the future use of supervisory powers to reverse a conviction.
Supervisory power to reverse a conviction is not needed as a remedy when the error to which it is addressed is harmless since by definition, the conviction would have been obtained notwithstanding the asserted error. Further, in this context, the integrity of the process carries less weight, for it is the essence of the harmless error doctrine that a judgment may stand only when there is no ‘reasonable possibility that the [practice] complained of might have contributed to the conviction.’ Fahy v. Connecticut, 375 U.S. 85, 86-87 (1963). Finally, deterrence is an inappropriate basis for reversal where, as here, the prosecutor‘s remark is at most an attenuated violation of Griffin, and where means more narrowly tailored to deter objectionable prosecutorial conduct are available.
Hasting, 103 S. Ct. at 1978-1979.
The Hasting Court emphasized that supervisory powers should be utilized only where more narrowly tailored means for remedying the violation and deterring future conduct would prove sufficient. Examples given by the Hasting Court included directing the wrongdoer to show cause why he should not be disciplined, asking the Department of Justice to initiate disciplinary proceedings against a prosecutor if he or she was the offender, or publically chastising the wrongdoer by identifying him or her in the Court‘s opinion. Hasting, 103 S. Ct. at 1979 n. 5.
Prerequisite then to reversing a conviction under the supervisory powers, (1) there must be a constitutional injury which is personal to the complaining defendant, (2) the injury must “harm” the defendant in
Mindful of the Court‘s admonitions in Hasting and Payner we decline to reverse the defendants’ convictions. None of the governmental activity with respect to the writ of habeas corpus incident violated any protected right of the defendants. Payner, 447 U.S. at 737, n. 9. Although the prosecutor‘s actions in obtaining the bogus writ constituted a fraud on the federal judicial system, that fraud, if it did not entrap Zeff Lulgjuraj, was in its effect on defendants’ convictions harmless beyond a reasonable doubt. Zeff Lulgjuraj testified at trial, and at no time did he assert entrapment. Although the other defendants did claim entrapment they were not directly involved in the improper removal of Zeff Lulgjuraj from a prison.
The most serious misconduct here was that of the prosecutor. The ATF agent who posed as a marshal was doing so under the prosecutor‘s aegis. His future conduct may be deterred by use of all of the sanctions given as examples by the Supreme Court in Hasting. Indeed, the District Court held a hearing on why he should not be held in contempt. It concluded that the prosecutor understood what he had done was wrong, that there were mitigating circumstances and that if the District Judge who had been deceived would accept an apology for the misconduct, no further action would be taken. Although we might well have imposed a harsher sanction we do not believe the District Court abused its discretion.11
Accordingly, the judgments of conviction are affirmed.
LIVELY, Circuit Judge, dissenting.
I respectfully dissent. As I view the case the question presented is whether it is a federal offense to offer or pay a bribe to an officer of the United States for the performance of an act which would violate the laws of a state, but which would violate no law of the United States, and which is totally unrelated to the officer‘s official duties.
There is no doubt that the defendants engaged in unlawful activity. However, they were indicted and tried for the specific offense of violating
A.
A federal bribery statute enacted as section 5451 of the Revised Statutes of 1878 provided:
Sec. 5451. Every person who promises, offers, or gives, or causes or procures to be promised, offered, or given, any money or other thing of value, or makes or tenders any contract, undertaking, obli-
gation, gratuity, or security for the payment of money, or for the delivery or conveyance of anything of value, to any officer of the United States, or to any person acting for or on behalf of the United States in any official function, under or by authority of any department or office of the government thereof, or to any officer or person acting for or on behalf of either house of congress, or of any committee of either house, or both houses thereof, with intent to influence his decision or action on any question, matter, cause, or proceeding which may at any time be pending, or which may by law be brought before him in his official capacity, or in his place of trust or profit, or with intent to influence him to commit, or aid in committing, or to collude in or allow, any fraud, or make opportunity for the commission of any fraud on the United States, or to induce him to do or omit to do any act in violation of his lawful duty, shall be punished as prescribed in the preceding section.
As codified in the Criminal Code of 1909 the bribery statute was contained in sections 117 and 39 which are similar to present-day
§ 201. Offer to officer or other person.
Whoever promises, offers, or gives any money or thing of value, or makes or tenders any check, order, contract, undertaking, obligation, gratuity, or security for the payment of money or for the delivery or conveyance of anything of value, to any officer or employee or person acting for or on behalf of the United States, or any department or agency thereof, in any official function, under or by authority of any such department or agency or to any officer or person acting for or on behalf of either House of Congress, or of any committee of either House, or both Houses thereof, with intent to influence his decision or action on any question, matter, cause, or proceed-ing which may at any time be pending, or which may by law be brought before him in his official capacity, or in his place of trust or profit, or with intent to influence him to commit or aid in committing, or to collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States, or to induce him to do or omit to do any act in violation of his lawful duty, shall be fined not more than three times the amount of such money or value of such thing or imprisoned not more than three years, or both.
In 1962 Congress cast § 201 in its current form as part of the Bribery, Graft and Conflicts of Interest Act. In the 1962 Act
A secondary feature of the bill is the substitution of a single comprehensive section of the Criminal Code for a number of existing statutes concerned with bribery. This consolidation would make no significant changes of substance and, more particularly, would not restrict the broad scope of the present bribery statutes as construed by the courts.
S. Rep. No. 2213, 87th Cong., 2d Sess., reprinted in [1962] U.S. Code Cong. & Ad. News 3852, 3853. In discussing § 201 in the section-by-section analysis the report summarizes
Subsection (b) makes it unlawful for anyone to bribe or attempt to bribe a public official by corruptly giving, offering, or promising him or any person selected by him, anything of value with intent to influence any official act by him, to influence him to commit or allow any fraud on the United States, or to induce him to do or omit to do any act in
violation of his lawful duty. The three alternate intents specified in the subsection are in substance the same as those now prescribed in title 18, United States Code, section 201. The subsection expands present law to a degree in its provisions forbidding an offer or promise of something of value from which a public official himself will not benefit but which will be of advantage to another person in whose well-being he is interested.
Id. at 3856-57.
B.
What is now
The 1878 bribery statute was construed in United States v. Gibson, 47 F. 833 (N.D. Ill. 1891). The defendant in that case was charged with offering an internal revenue officer money to set fire to a distillery. The officer was entitled to enter the distillery at any time it was open for the purpose of seeing that proper revenue stamps were affixed to all receptacles containing alcoholic spirits. However, he had no other duties with respect to the distillery. The district court quashed the indictment upon finding that “to bribe or induce such an officer to do an act not connected with his line of duty impinges upon no United States law, and does not subject the offender to indictment and punishment in the United States courts.” Id. at 834. While the revenue officer‘s right to enter the distillery made him a convenient person to attempt to employ for the purpose of destroying the distillery, this fact did not bring the offer within the federal bribery statute. The court concluded its opinion:
The bribe offered was for an act entirely outside the official function of the officer to whom, it is claimed, the bribe was offered. The right to enter the distillery was not given him that he might do this, but that he might enter there for the purpose of merely inspecting the articles in the distillery, and hence the act which it was sought to have him accomplish by the inducement offered was in no respect within the duty of this officer. The alleged offers cannot be said to have been made to induce the officer to do or omit to do any act in violation of his lawful duty. It will, of course, be understood that this motion is disposed of solely on the ground that the offense charged was not within the jurisdiction of this court, but is wholly within the cognizance of the state courts.
The motion to quash is sustained. Id. at 835.
A similar conclusion was reached in In re Yee Gee, 83 F. 145 (D. Wash. 1897), where the defendant solicited a government employee to give false translations of Chinese letters and documents which the defendant anticipated would be offered in evidence in a pending criminal case. The interpreter had not been appointed or designated to make the translations, though his duties were to assist customs officers in interpreting and translating from Chinese to English and from English to Chinese. The district court found that it was not a function of his position to make translations in court proceedings and in the absence of a specific appointment to do so, any such activity on his part would not be performed in his official capacity.
The Supreme Court dealt with the bribery provisions of the Criminal Code of 1909 in United States v. Birdsall, 233 U.S. 223, 34 S. Ct. 512, 58 L. Ed. 930 (1914). The court described the substance of the two sections as follows:
Section 117 of the Criminal Code (35 Stat. p. 1109), with respect to the acceptance of bribes, provides that “whoever, being an officer of the United States, or a person acting for or on behalf of the United States, in any official capacity, under or by virtue of the authority of any department or office of the Government thereof” accepts money, etc., “with intent to have his decision or action on any question, matter, cause, or proceeding
which may at any time be pending, or which may by law be brought before him in his official capacity, or in his place of trust or profit, influenced thereby” shall be punished as stated. Section 39 (id. p. 1096), as to bribe giving, uses similar language in defining the official relation of the recipient and the character of the action intended to be influenced; adding the words—“with intent to influence him to commit . . . any fraud . . . on the United States, or to induce him to do or omit to do any act in violation of his lawful duty.”
Id. at 230. Section 39, referred to in the quoted passage, was substantively identical to § 5451 of the 1878 statute.
It seems clear that the Supreme Court related the final clause of § 39, “or to induce him to do or omit to do any act in violation of his lawful duty,” to the requirement that the bribe be offered “with intent to have his decision or action on any question, matter, cause, or proceeding which may at any time be pending, or which may by law be brought before him in his official capacity, or in his place of trust or profit . . . .” The final clause did not refer to an act or omission in violation of his general duty to uphold the law, but to his official duties. The Court wrote, “Every action that is within the range of official duty comes within the purview of these sections.” Id. Only when it is charged that the action sought to be influenced is official action is there a basis for prosecution under the federal bribery statute. The Court explained that official action need not be prescribed by statute, but may be a requirement of the department for which the officer is acting and may be evidenced by established usage as well as written rules. Id. at 231.
This court dealt with
The crux of the offense is the intent to influence an official decision. The statute requires that the employee be acting for the Government in an “official function” and that the matter in which his decision is to be influenced be “before him in his official capacity.”
Id. (Emphasis in original). In a subsequent § 201 case this court distinguished Blunden but did not depart in any respect from its holding. See Krogmann v. United States, 225 F.2d 220 (6th Cir. 1955).
Blunden has been criticized as being too restrictive in interpreting § 201. See, e.g., Hurley v. United States, 192 F.2d 297, 300 (4th Cir. 1951). See also Schneider v. United States, 192 F.2d 498 (9th Cir. 1951), cert. denied, 343 U.S. 914 (1952), where the result would have been different if the Blunden requirement respecting the authority of the bribery target had been strictly followed. Nevertheless, in each of these cases the bribe was paid to influence a decision or obtain action which violated a duty owed to the United States as employer of the target of the bribe. In Hurley v. United States, supra, the defendant paid money to an Air Force sergeant attached to an induction center to prevent the defendant‘s induction into the armed forces. The sergeant to whom the bribe was paid had no authority to prevent
In Schneider v. United States, supra, the defendant paid an Army air base salvage officer to substitute other salvage material for the scrap which he had purchased. The court stated that if any base salvage officer “should fail to prevent or to report an unauthorized removal of government property from the base knowing that such a removal was contrary to law he would fail in his lawful duty. This would be true whether or not he possessed specific authority to sell the property.” 192 F.2d at 501. Since the officer‘s official duties required him to protect government property, the bribe was offered to cause him to fail to do his duty as base salvage officer. Thus, the court took a broader view of the “authority to act” requirement of § 201 than this court did in Blunden. However, the Schneider court did not depart from the requirement that the bribe relate to an official function of the target of the bribe:
The statute itself and the cases construing it or its predecessor make it clear that no violation of the law can take place unless the individual bribed or attempted to be bribed is an officer or employee or person acting for or on behalf of the United States or a department or agency thereof, and that the bribe or the offer is in connection with his line of duty. The duties of him to whom the offer is made or the bribe given are most pertinent.
Id. at 500. I agree with the holding in Schneider. The requirement of Blunden that the act sought by the briber be within the actual authority of the person bribed does not apply where the defendant is charged specifically with violating
C.
After careful consideration I conclude that the actions of the defendants in the present case did not constitute a violation of
The decision to prosecute the defendants under the federal bribery statute is puzzling in view of the fact that the Michigan State Police were involved in the investigation from the beginning. The endeavor to free Lulgjuraj would have violated Michigan law as set forth in
Any person who . . . shall by any means whatever, aid or assist any . . . prisoner in his endeavor to make his escape [from any jail, prison or like place of confinement], whether such escape be affected (sic) or attempted, or not . . . shall be guilty of a felony, punishable by impris-
onment in the state prison not more than 7 years . . .
The State of Michigan has a strong interest in prosecuting anyone who would seek to effect the unlawful release of a person convicted of capital crimes. If the information in this case had been turned over to a Michigan prosecutor I have no doubt that the matter would have been pursued vigorously.
The district court should have granted the defendants’ motion for acquittal.
Notes
§ 201. Offer to officer or other person
Whoever promises, offers, or gives any money or thing of value or makes or tenders any check, order, contract, undertaking, obligation, gratuity, or security for the payment of money or for the delivery or conveyance of anything of value, to any officer or employee or person acting for or on behalf of the United States, or any department or agency thereof, in any official function, under or by authority of any such department or agency or to any officer or person acting for or on behalf of either House of Congress, or of any committee of either House, or both Houses thereof, with intent to influence his decision or action on any question, matter, cause, or proceeding which may at any time be pending, or which may by law be brought before him in his official capacity, or in his place of trust or profit, or with intent to influence him to commit or aid in committing, or to collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States, or to induce him to do or omit to do any act in violation of his lawful duty, shall be fined not more than three times the amount of such money or value of such thing or imprisoned not more than three years or both.