United States v. Jennings ( 1998 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4170
LARRY E. JENNINGS, SR.,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Frederic N. Smalkin, District Judge.
(CR-95-283-S)
Argued: July 11, 1997
Decided: November 19, 1998
Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.
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Affirmed by published opinion. Judge Michael wrote the opinion, in
which Judge Niemeyer and Judge Motz joined.
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COUNSEL
ARGUED: George J. Terwilliger, III, MCGUIRE, WOODS, BAT-
TLE & BOOTHE, L.L.P., Washington, D.C., for Appellant. Kathleen
O'Connell Gavin, Assistant United States Attorney, Baltimore, Mary-
land, for Appellee. ON BRIEF: Laura A. Colombell, MCGUIRE,
WOODS, BATTLE & BOOTHE, L.L.P., Washington, D.C.; E. Dun-
can Getchell, Jr., Richmond, Virginia, for Appellant. Lynne A. Bat-
taglia, United States Attorney, Baltimore, Maryland, for Appellee.
_________________________________________________________________
OPINION
MICHAEL, Circuit Judge:
A jury found Larry Jennings, Sr., a housing repair contractor, guilty
of three counts of violating 18 U.S.C. § 666, a statute that prohibits
corruption of officials who administer state and local programs
receiving federal funds. On appeal Jennings argues that § 666 outlaws
only bribes, not gratuities, and that the government did not prove that
the payments he made to a city official were actually bribes. We con-
clude, however, that the evidence was sufficient to convict Jennings
of bribery. Jennings also contends that a new trial is required because
the jury instructions misstated the "corrupt intent" element of bribery
by failing to require proof of intent to engage in a quid pro quo. We
reject this contention under a plain error analysis. Accordingly, we
affirm.
I.
The Housing Authority of Baltimore City (HABC) is a local gov-
ernment agency that operates and maintains subsidized housing units
within the City. HABC receives funds from the United States Depart-
ment of Housing and Urban Development. In late 1991 HABC began
a special program to renovate hundreds of vacant housing units
owned by that agency in Baltimore. To expedite the renovations, a
housing emergency was declared, which allowed HABC to dispense
with the usual bidding procedures for selecting contractors. As a
result, HABC developed a list of about thirty contractors who were
awarded work by purchase order without competitive bidding. This
no-bid program was known as the Vacancy Special Funding Program
(VSFP). Between 1992 and 1994 Charles Morris, a HABC employee,
was the administrator of VSFP. Morris had the discretion to decide
what jobs were awarded to each contractor on the list as well as the
authority to negotiate the price for each contract. 1
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1 Morris, who was the government's main witness, testified pursuant to
a plea agreement. Morris pled guilty to a violation of 18 U.S.C. § 666 for
accepting money from Jennings and several other contractors doing
VSFP work.
2
Under the VSFP program, contractors submitted an estimate of the
cost to rehabilitate a housing unit, and an in-house estimator at HABC
prepared a second, independent estimate. Morris sometimes did the
in-house estimate himself. Morris reviewed the two estimates in every
case. If the contractor's estimate and the in-house estimate differed by
less than ten percent, Morris forwarded the paperwork for formal
approval and the issuance of a purchase order. If the estimates dif-
fered by more than ten percent, Morris either increased the in-house
estimate or negotiated a reduction in the contractor's estimate. Upon
the issuance of the purchase order, the contractor was authorized to
begin work. When the job was finished, a HABC inspector working
under Morris inspected the unit. If the inspector found that the work
had been performed satisfactorily, the inspector issued a certificate of
completion to the contractor. The contractor then submitted the certif-
icate to Morris for payment.
Jennings was a construction contractor who owned two businesses,
Elias Contracting Co. (Elias) and Environmental Protection Co.
(EPC). He was vice-president of both companies and his daughter,
Georgia Jennings Page (Page), was president. In 1991 Jennings
became interested in obtaining HABC contracts for Elias. He and his
son, Larry Jennings, Jr. (Jennings Jr.), met with Morris at a restaurant
that year to discuss the possibility of doing VSFP work. Jennings Jr.
was a member of the HABC Board of Commissioners, which oversaw
HABC's activities. Sometime after this meeting Morris placed Elias
on the VSFP contractor list.
While Elias was performing VSFP work in 1993, Jennings made
cash payments to Morris on five occasions. The first payment
occurred in early spring when Morris went to Jennings's office to
deliver a HABC check for work that Elias had completed. There, Jen-
nings gave $200 to Morris and told Morris that he (Jennings) would
not "have made it" without Morris's help. After this payment, VSFP
contracts and payment checks flowed on a regular basis from HABC
to Jennings's companies.
Later that spring, on April 26, 1993, Elias deposited in its account
a $75,786.43 check from HABC for work performed under the VSFP
program. That same day, Jennings telephoned Morris to arrange a
meeting in Jennings's car. As the two men drove around downtown
3
Baltimore, Jennings handed Morris a paper bag containing between
$2,500 and $3,000 in cash. In thanking Morris, Jennings acknowl-
edged that Morris's help had been essential. The following day Elias
submitted five new proposals for VSFP work totaling $86,609. Over
the next several days Morris reviewed these proposals and approved
them at a total of $86,061, very close to the amount Elias had sought.
To approve the jobs for that level of payment, Morris had to increase
several of the in-house estimates.
On May 4, 1993, Elias deposited another HABC check in the
amount of $46,408.75, received in payment for VSFP work. The next
day Jennings again met with Morris. Jennings gave Morris $2,500 in
cash and thanked him, just as before. Over the next week Elias sub-
mitted eight new proposals for VSFP work, with a total price tag of
$170,440. Morris approved all of the proposals for a total price of
$163,973. In authorizing this work, Morris bumped up some of the in-
house estimates, approved several proposals for the exact amount
Elias requested, and approved others for amounts slightly less than
the Elias estimates.
In June 1993 Jennings's other company, EPC, began efforts to
obtain work under another no-bid program at HABC, lead testing on
VSFP units. Morris gave Page a sample proposal to use in preparing
EPC's submission for this work. Soon thereafter, Page gave Morris
a draft of EPC's $254,000 proposal, and Morris worked over a week-
end to help Page finalize the proposal. At about the same time, Elias
submitted eight new proposals, totaling $151,535, for VSFP rehabili-
tation work. On June 25, 1993, Morris approved all eight of these pro-
posals for amounts near or equal to what Elias requested, for a total
authorization of $148,841. That same day HABC issued a purchase
order awarding the lead testing contract to EPC, and Elias deposited
a HABC check for $16,506. Also on that day, Jennings gave Morris
$1,500 in cash. Jennings told Morris, "If it wasn't for you, I don't
know what I would have done." In July 1993 Jennings gave Morris
an additional $200 in cash.
Jennings used various ploys to get the cash for the three payments
charged in the indictment. For the first payment (of $2,500 to $3,000)
Jennings, on April 26, 1993, wrote a $3,000 check on the Elias
account, payable to Moe Construction, a small company that had sub-
4
contracted with Elias to rehabilitate two VSFP units. Jennings, how-
ever, did not deliver the check to Moe Construction. Rather, Jennings
took the check to Charles "Moe" Armwood, who ran a check cashing
and liquor store business called Doc's Liquors. Moe Armwood cashed
the check for Jennings, endorsed it, and deposited it in the bank
account of Moe Corporation II, one of Armwood's business accounts.
That same day (April 26) Jennings took the cash proceeds from the
check and made a payment to Morris.
Cash for the second payment, for $2,500, came from a $15,000
check, dated May 5, 1993, that Jennings wrote on the Elias account,
payable to B.H.S., another Elias subcontractor. Jennings did not
deliver the check to B.H.S. Once again, he took the check to Moe
Armwood at Doc's Liquors, who cashed it. Jennings used part of the
cash to pay Morris.
Money for the last charged payment came from a $1,500 personal
check that Jennings cashed at Doc's Liquors on June 26, 1993. Jen-
nings took the full $1,500 to Morris that day.
Although Morris admitted to accepting cash from Jennings, he tes-
tified that he took gifts, not bribes. Morris also said that while he
often assisted Jennings's companies with paperwork, he never did any
special favors for Jennings's companies as a result of the gifts. Morris
admitted, however, that Jennings was the only contractor to whom he
personally delivered HABC payment checks. Morris dropped off Jen-
nings's checks at his (Jennings's) place of business, while all other
contractors picked up their checks at Morris's office. Finally, Morris
claimed that he put Elias on the no-bid contractor list at the request
of his supervisor.
James Karim, who was a subcontractor for Elias on three VSFP
jobs, was another witness for the government. According to Karim,
Jennings required him to do extra work that was not covered by the
subcontracts and then refused to pay for this work. Karim's partner
called Morris at the VSFP office to complain about Jennings's meth-
ods of dealing, including his failure to pay for all work completed.
When Jennings learned of the call, he told Karim that the calls were
of "no use." Jennings said, the "people downtown report right back to
[me] . . . . I have that under control. So, your complaints are . . .
5
worthless." As Jennings predicted, Morris took no action on Karim's
complaint.
Jennings testified in his own defense. He denied giving any money
to Morris.
II.
Jennings argues that district court erred when it denied his motion
for a judgment of acquittal under Fed. R. Crim. P. 29. We must sus-
tain his conviction if the evidence, viewed in the light most favorable
to the government, was sufficient for a rational trier of fact to find the
essential elements of the crime beyond a reasonable doubt. See United
States v. Brewer, 1 F.3d 1430, 1437 (4th Cir. 1993).
Jennings claims that the statute under which he was convicted, 18
U.S.C. § 666, prohibits "bribes" but not"gratuities." Specifically, Jen-
nings says that the evidence showed that he gave gratuities, not
bribes, to Morris because Morris testified that he did no special favors
for Jennings and that he (Morris) therefore did not abuse his office.
From this, Jennings concludes that the government failed to prove
that he violated § 666. We disagree. Regardless of whether § 666
applies to gratuities, there was sufficient evidence to convince a ratio-
nal juror beyond a reasonable doubt that the payments Jennings made
to Morris were bribes.
A.
Some background on 18 U.S.C. § 666 is useful. We begin with the
pertinent language of the statute, which is entitled"Theft or bribery
concerning programs receiving Federal funds":
Whoever . . . corruptly gives, offers or agrees to give any-
thing of value to any person, with intent to influence or
reward an agent of an organization or of a State, local or
Indian tribal government, or any agency thereof, in connec-
tion with any business, transaction, or series of transactions
of any such organization, government, or agency involving
anything of value of $5000 or more; shall be fined under
this title, imprisoned not more than 10 years, or both.
6
18 U.S.C. § 666(a)(2) (1988)(emphasis added).
This subsection prohibits payoffs to state and local officials who
influence the distribution of federal funds. Before§ 666 was enacted
in 1984, a circuit split raised doubt as to whether state and local offi-
cials could be considered "public officials" under the general federal
bribery statute, 18 U.S.C. § 201. See S. Rep. No. 98-225, at 369
(1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3510. Congress acted
to mend the split without awaiting word on this issue from the
Supreme Court.2 See id. at 370, 1984 U.S.C.C.A.N. at 3511. By enact-
ing § 666 Congress supplemented § 201 to make clear that federal law
prohibits "significant acts of . . . bribery involving Federal monies
that are disbursed to private organizations or State and local govern-
ments pursuant to a Federal program." Id. at 369, 1984 U.S.C.C.A.N.
at 3510.
Jennings's argument on appeal -- that he paid gratuities, not bribes
-- draws upon the language of § 201. Section 201 prohibits two types
of payments to federal officials: (1) bribes and (2) illegal gratuities.
See United States v. Muldoon, 931 F.2d 282, 287 (4th Cir. 1991). Sec-
tion 201(b), the bribery section, punishes anyone who "corruptly
gives, offers or promises anything of value to any public official . . .
with intent . . . to influence any official act." 18 U.S.C. § 201(b)(1)(A)
(1988) (emphasis added). Section 201(c), the illegal gratuity section,
punishes anyone who "gives, offers, or promises anything of value to
any public official . . . for or because of any official act performed
or to be performed by" a public official. § 201(c)(1)(A) (emphasis
added).
Whether a payment is a bribe or an illegal gratuity under § 201
depends on the intent of the payor. A bribe requires that the payment
be made or promised "corruptly," that is, with"corrupt intent." Under
§ 201 "corrupt intent" is the intent to receive a specific benefit in
return for the payment. See Muldoon, 931 F.2d at 287; United States
v. Duvall, 846 F.2d 966, 971 n.6, 972 (5th Cir. 1988); United States
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2 Shortly after § 666 became law, the Court held in Dixson v. United
States, 465 U.S. 482, 496 (1984), that persons who "occupy a position
of public trust with official federal responsibilities," including state and
local officials, are "public officials" under 18 U.S.C. § 201.
7
v. Irwin, 354 F.2d 192, 197 (2d Cir. 1965). In other words, the payor
of a bribe must intend to engage in "``some more or less specific quid
pro quo'" with the official who receives the payment. Duvall, 846
F.2d at 972 (quoting United States v. Arthur, 544 F.2d 730, 734 (4th
Cir. 1976)); accord United States v. Sun-Diamond Growers of
California, 138 F.3d 961, 966 (D.C. Cir. 1998) (discussing the quid
pro quo element of § 201(b) bribery), cert. granted in part, 67
U.S.L.W. 3151 (U.S. Nov. 2, 1998) (No. 98-131), and cert. denied,
67 U.S.L.W. 3261 (U.S. Nov. 2, 1998) (No. 98-374); United States
v. Johnson, 621 F.2d 1073, 1076 (10th Cir. 1980) (same); cf. also
United States v. Niederberger, 580 F.2d 63, 68 (3d Cir. 1978)
(explaining that under § 201 the intent to"corruptly" receive a pay-
ment means the intent to effectuate a quid pro quo); United States v.
Strand, 574 F.2d 993, 995 (9th Cir. 1978) (same). Accordingly, a
goodwill gift to an official to foster a favorable business climate,
given simply with the "``generalized hope or expectation of ultimate
benefit on the part of the donor,'" does not constitute a bribe.
Johnson, 621 F.2d at 1076 (quoting Arthur , 544 F.2d at 734); cf. also
United States v. Allen, 10 F.3d 405, 411 (7th Cir. 1993) ("Vague
expectations of some future benefit should not be sufficient to make
a payment a bribe."). An illegal gratuity, on the other hand, is a pay-
ment made to an official concerning a specific official act (or omis-
sion) that the payor expected to occur in any event. No corrupt intent
to influence official behavior is required. The payor simply must
make the payment "for or because of" some official act. See Muldoon,
931 F.2d at 287; accord Sun-Diamond Growers, 138 F.3d at 966(explaining that "in contrast to bribery, [a] gratuity and the [relevant]
official act need not motivate each other"); cf. also United States v.
Griffin, 154 F.3d 762, 764 (8th Cir. 1998) ("The core difference
between a bribe and a gratuity is . . . the quid pro quo, or the agree-
ment to exchange cash for official action."); United States v. Mariano,
983 F.2d 1150, 1159 (1st Cir. 1993) ("The essential difference
between a bribe and an illegal gratuity is the intention of the bribe-
giver to effect a quid pro quo."). In sum, the line between a payment
made "corruptly . . . with intent to influence" an official act and a pay-
ment made "for or because of" an official act is the same line that sep-
arates a bribe from an illegal gratuity. Cf. United States v. Kummer,
89 F.3d 1536, 1540 (11th Cir. 1996); United States v. Lopreato, 83
F.3d 571, 575 (2d Cir.), cert. denied , 117 S. Ct. 187 (1996).
8
Because the distinguishing factor between a bribe and an illegal
gratuity is the intent behind the payment, the timing of the payment
in relation to the official act for which it is made is (in theory) irrele-
vant. Cf. Griffin, 154 F.3d at 764. Bribes often are paid before the
fact, but "it is only logical that in certain situations the bribe will not
actually be conveyed until the act is done." United States v. Campbell,
684 F.2d 141, 148 (D.C. Cir. 1982). By this same logic, illegal gratu-
ities, which typically follow the act for which they are paid, may be
conveyed before the occurrence of the act (so long as the payor
believes the official has already committed himself to the action). See
id.; Mariano, 983 F.2d at 1159. This can cause the distinction
between bribes and illegal gratuities, which is clear in theory, to look
somewhat hazy in real life. See United States v. Biaggi, 674 F. Supp.
86, 87-88 (E.D.N.Y. 1987) (Weinstein, C.J.), aff'd, 853 F.2d 89 (2d
Cir. 1988). Without knowing the payor's intent, one cannot know
whether the payment was a bribe or an illegal gratuity. Thus, without
proof of corrupt intent on the payor's part, a bribery conviction is
impossible.
Direct evidence of intent is unnecessary, however. To prove brib-
ery under § 201, the government is not required to prove an expressed
intention (or agreement) to engage in a quid pro quo. Such an intent
may be established by circumstantial evidence. See United States v.
Massey, 89 F.3d 1433, 1439 (11th Cir. 1996); United States v. Biaggi,
909 F.2d 662, 684 (2d Cir. 1990). Also, the government need not
show that the defendant intended for his payments to be tied to spe-
cific official acts (or omissions). Bribery requires the intent to effect
an exchange of money (or gifts) for specific official action (or inac-
tion), but each payment need not be correlated with a specific official
act. See Arthur, 544 F.2d at 734. Rather, it is sufficient to show that
the payor intended for each payment to induce the official to adopt
a specific course of action. See id. In other words, the intended
exchange in bribery can be "this for these" or"these for these," not
just "this for that." Further, it is not necessary for the government to
prove that the payor intended to induce the official to perform a set
number of official acts in return for the payments. The quid pro quo
requirement is satisfied so long as the evidence shows a "course of
conduct of favors and gifts flowing to a public official in exchange
for a pattern of official actions favorable to the donor." Id. (internal
quotation omitted). Thus, all that must be shown is that payments
9
were made with the intent of securing a specific type of official action
or favor in return. For example, payments may be made with the
intent to retain the official's services on an "as needed" basis, so that
whenever the opportunity presents itself the official will take specific
action on the payor's behalf. See id. This sort of "I'll scratch your
back if you scratch mine" arrangement constitutes bribery because the
payor made payments with the intent to exchange them for specific
official action.
Although the distinction between bribes and illegal gratuities under
§ 201 is sometimes difficult to apply, the distinction has real conse-
quences nevertheless. "Payment of an illegal gratuity is a lesser
included offense of bribery." Muldoon, 931 F.2d at 287. This is
because corrupt intent is a "different and higher" degree of criminal
intent than that necessary for an illegal gratuity. United States v.
Brewster, 506 F.2d 62, 72 (D.C. Cir. 1974). As a result, the punish-
ment for bribing a public official is much more severe than the pun-
ishment for paying an illegal gratuity. Compare 18 U.S.C. § 201(b)
(bribery is punishable by up to 15 years in prison) with id. § 201(c)
(illegal gratuity is punishable by up to two years in prison). Thus, it
is important that a jury be properly instructed on the difference
between a bribe and a gratuity in cases when there is a question about
the nature of the payment alleged.
B.
Jennings argues that § 666 adopts § 201's bribe regime and then
stops. He points out that § 666(a)(2) only prohibits payments given
"corruptly," just like the general bribery provision, § 201(b), and
unlike the illegal gratuity provision, § 201(c). This similarity to
§ 201(b) (and corresponding dissimilarity to§ 201(c)), Jennings
claims, shows that § 666 prohibits only bribery. Moreover, § 666's
punishment provision allows up to ten years in prison, with nothing
comparable to § 201(c)'s two-year cap for an illegal gratuity. See 18
U.S.C. § 666(a). Thus, Jennings argues that in order to convict him,
the government had to prove that he bribed Morris.
As we explain below (in part II.C.), Jennings's conviction must
stand because the evidence was sufficient to prove that he intended
to influence Morris's official acts by paying him money, that is, Jen-
10
nings intended to engage in a quid pro quo. Jennings's intent therefore
was sufficiently corrupt to call his payments "bribes" (or "rewards"3).
As a result, we need not decide today whether § 666 also covers "gra-
tuities," that is, payments made for or because of an official act.4
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3 One difference between the language of § 666(a)(2) and § 201(b) is
that the former prohibits gifts made with the corrupt intent "to influence
or reward" officials while the latter prohibits gifts made with the corrupt
intent "to influence" officials. The additional words "or reward" in
§ 666(a)(2) have no import in Jennings's case, however. At the very
least, we read these words to embody the established rule (discussed in
part II.A., above) that a bribe can be promised before, but paid after, the
official's action on the payor's behalf. This definition accords with the
traditional meaning of the term "reward" as something offered to induce
another to act favorably on one's behalf (for example, a bounty offered
for the capture of a fugitive). See, e.g., Webster's II: New Riverside Uni-
versity Dictionary 1007 (2d ed. 1988); Black's Law Dictionary 1322 (6th
ed. 1990). Thus, for this case we will assume that the "or reward" lan-
guage in § 666(a)(2) clarifies that the distinction between a bribe and a
gratuity is a matter of intent, not simply a matter of timing (as some
courts have suggested, see, e.g., United States v. Coyne, 4 F.3d 100, 111
(2d Cir. 1993)).
Because (as we discuss below) the evidence was sufficient to convict
Jennings under the traditional (and somewhat narrow) meaning of "re-
ward," we need not decide whether § 666(a)(2) actually uses the word in
a broader sense. Specifically, we need not address the government's
argument that the "or reward" language in§ 666(a)(2) actually refers to
no-strings-attached gifts, that is, payments that would be "illegal gratu-
ities" under § 201(c). And, we likewise need not resolve the puzzle cre-
ated by the government's argument, namely, why § 666(a)(2)'s language
prohibiting "rewards" given "corruptly" should be interpreted to cover
gratuities, when under § 201 any payment made"corruptly" is a bribe,
not an illegal gratuity. Compare United States v. Bonito, 57 F.3d 167,
171 (2d Cir. 1995) (saying that § 666 covers gratuities "made with intent
to reward past conduct, so long as the intent to reward is corrupt"), with
United States v. Lasanta, 978 F.2d 1300, 1309 (2d Cir. 1992) (explaining
that under § 201 a bribery conviction requires proof of corrupt intent
while an illegal gratuity conviction does not), and United States v.
Zacher, 586 F.2d 912, 915 (2d Cir. 1978) (same).
4 The Second Circuit has said that§ 666 prohibits payment of both
bribes and gratuities. See Bonito, 57 F.3d at 171; see also United States
11
C.
We turn to the evidence in Jennings's case. To begin with, Jen-
nings is mistaken to focus on Morris's testimony that he believed he
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v. Crozier, 987 F.2d 893, 898-99 (2d Cir. 1993) (considering the former
version of § 666). The Seventh Circuit has suggested the same by hold-
ing that an indictment under § 666(a)(2) need not allege "any specific
quid pro quo." United States v. Agostino, 132 F.3d 1183, 1190 (7th Cir.
1997), cert. denied, 118 S. Ct. 1526 (1998). These decisions blur the
longstanding distinction between bribes and illegal gratuities. By allow-
ing § 666(a)(2) convictions to stand without proof that the defendant
intended to engage in a quid pro quo, these cases appear to conclude that
§ 666 abandons the traditional meaning of"corrupt intent" attributed to
the statute on which § 666 is based, § 201. A close reading of these cases
reveals, however, that there is still room for an argument that § 666 does
not prohibit gratuities. This argument is that § 666 accepts the longstand-
ing bribe/gratuity distinction, adopts the traditional meaning of "corrupt
intent" in § 201, and criminalizes only bribes.
The Seventh Circuit in Agostino did not acknowledge that under § 201
courts equate "corrupt intent" with the intent to engage in a relatively
specific quid pro quo. In fact, the court did not mention § 201, so we can-
not know whether it considered the customary distinction between bribes
and illegal gratuities. Agostino's persuasive weight is therefore subject to
debate.
The Second Circuit has discussed the relationship between § 201 and
§ 666, as well as the bribe/gratuity distinction of § 201, in Crozier. See
987 F.2d at 898-99. According to that court, a reading of § 666's original
and current versions reveals that the section has always prohibited both
bribes and gratuities. See id. (original version); Bonito, 57 F.3d at 171(current version). There is an argument, however, for distinguishing both
Crozier and Bonito.
In Crozier the defendant (convicted under a former version of § 666)
claimed that his payments were gratuities, not bribes, and that gratuities
were not prohibited by § 666. In order to address this claim, the Second
Circuit analyzed 18 U.S.C. § 666(c) (Supp. II 1985), the original version
of what is now § 666(a)(2). See 987 F.2d at 898-900. As first enacted,
§ 666(c) outlawed payments made "for or because of" the official acts of
certain state or local officials. (Section 666(c) also did not use the word
"corruptly.") Thus, § 666 adopted the same language that appears in
12
accepted gifts, not bribes, from Jennings. Under§ 666(a)(2) the intent
of the payor, not the intent of the payee, is determinative of whether
a crime occurred. See Mariano, 983 F.2d at 1159 ("The common
thread that runs through [18 U.S.C. §§ 666(a)(2) and 201(b)] is the
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§ 201's gratuity section, § 201(c). The Crozier court focused on this "for
or because of" language, saying it was what distinguished § 201(c) from
that statute's bribery provision, § 201(b). See id. at 898-99. The Crozier
court reasoned that Congress, by using the same"for or because of" lan-
guage in § 666(c), intended for § 666 (which was enacted to supplement
§ 201) to prohibit gratuities. See id.
In support of his contention that § 666(c) did not prohibit gratuities,
the defendant in Crozier (who was convicted for conduct that occurred
in July 1986) argued that the statute's scope was broadened to include
gratuities by an October 1986 amendment, which replaced the original
version of the statute with (essentially) the current version. See id. After
the 1986 amendment § 666 prohibited (as it still does) payments made
"corruptly . . . with intent to influence or reward" certain state and local
officials. This "corruptly . . . with intent to influence or reward" language
in § 666(a)(2) replaced the "for or because of" language in the old
§ 666(c). The Crozier defendant argued that the 1986 addition of the
"corruptly . . . with intent to influence or reward" language expanded the
reach of § 666 to cover gratuities. Thus, he contended that his conviction
was invalid because the statute prohibited only bribes when his conduct
occurred.
The Crozier court, after consulting the statutory history of the 1986
amendment to § 666, rejected the defendant's claim that § 666 had been
amended to cover gratuities. See id. The court noted that this amendment
made § 666 "parallel" to 18 U.S.C. § 215 (the bank bribery statute),
which itself was amended in 1986. Id. The 1986 amendments to §§ 215
and 666, the Crozier court said, were intended "to limit the scope of
these statutes, and not to broaden them to include new theories." Id. (cit-
ing H.R. Rep. No. 99-335, at 5-6 (1986), reprinted in 1986 U.S.C.C.A.N.
1782, 1786-87; H.R. Rep. No. 99-797, at 30 n.9 (1986), reprinted in
1986 U.S.C.C.A.N. 6138, 6153 n.9). However, Crozier did not specify
the nature or degree of the limitation on the two statutes. See 987 F.2d
at 898-99. Since Crozier did not address the scope of the new
§ 666(a)(2), it did not decide the converse of the question presented by
the defendant in that case -- whether the 1986 amendment to § 666
narrowed the scope of the statute's prohibition to exclude gratuities.
The Second Circuit purportedly took up this question in Bonito. In
Bonito the defendant argued exactly the opposite of what the defendant
13
intent of the payer, by the greasing of palms, to affect the future
actions of a public official."); see also Campbell, 684 F.2d at 148 n.11
("the donor may be convicted of giving a bribe even despite the fact
_________________________________________________________________
argued in Crozier. The Bonito defendant claimed that the 1986 amend-
ment to § 666 (which replaced the old "for or because of" language of
§ 666(c) with the new "corrupt . . . with intent to influence or reward"
language of § 666(a)(2)) removed gratuities from the scope of § 666's
prohibition. See 57 F.3d at 171. He argued that § 666 no longer reached
gratuities because that section now lacked the "for or because of" lan-
guage that the Crozier court had relied upon in deciding that § 666's lan-
guage was similar to that of § 201's illegal gratuity provision. But the
Bonito court seemed to disagree. The court said that it was "[f]atal to [the
defendant's] argument . . . that the deleted[``for or because of'] language
has been replaced with language that is to the same effect[, ``to influence
or reward']". Id. Here the court apparently meant that the new
§ 666(a)(2), like the old § 666(c), prohibits both bribes and gratuities.
However, a closer analysis of Bonito suggests that its holding was the
same as ours today: that regardless of whether § 666(a)(2) reaches gratu-
ities, the statute reached the defendant's conduct because the defendant
paid bribes. First, although the Bonito court may have meant to say (in
the statement we just quoted) that gratuities are prohibited by the new
§ 666, it may have meant something else. Immediately after the court
made the statement quoted above, it also said that"the current statute
continues to cover payments made with intent to reward past official
conduct, so long as the intent to reward is corrupt." Id. The court then
said (in upholding the trial court's jury charge) that § 666(a)(2) requires
that "the corrupt agreement, offer or payment must precede the official
act to be influenced or rewarded." Id. These latter two statements
describe bribes, not gratuities, as those words are traditionally defined
(for § 201 purposes). See part II.A., above. It is therefore possible that
the Bonito court did not mean to hold that§ 666(a)(2) prohibits gratu-
ities. Second, the Bonito court's sufficiency of the evidence holding
shows that the payments at issue in that case were, quite clearly, bribes.
See id. at 174-75 (holding that "there was enough evidence to allow the
jury to find that the [defendant and the official] had corruptly agreed that
[the defendant] would give the car [to the official as a] bribe in exchange
for favors [from the official]"; see also id. (again referring to the defen-
dant's gift as a "bribe"). As a result, it is clear that, whatever the Bonito
court meant to say about whether § 666 prohibits gratuities, its discussion
of gratuities was unnecessary to the disposition of the case.
14
that the recipient had no intention of altering his official activities"
(internal quotation omitted)). Thus, the only intent at issue was Jen-
_________________________________________________________________
In any event, a court squarely addressing the issue could reasonably
conclude that § 666(a)(2) prohibits bribes, but not gratuities, for two rea-
sons. First, Bonito does not offer the only plausible comparison of the
language of §§ 666 and 201. Instead of deciding that § 666(a)(2) resem-
bles § 201's illegal gratuity provision, § 201(c), a court might conclude
that § 666(a)(2) actually resembles § 201's bribery provision, § 201(b).
Under this view the "corruptly . . . with intent to influence or reward"
language of § 666(a)(2) has the same effect as the "corruptly . . . with
intent to influence" language of § 201(b) and not the same effect as the
"for or because of" language of § 201(c). If this is true, then § 666(a)(2)
prohibits only bribes.
Second, a court interpreting the statutory history of the 1986 amend-
ment to § 666 could reach the conclusion (unstated in, but consistent
with, Crozier) that the 1986 amendment to§ 666 clarified that the statute
prohibits only bribes. As Crozier recognized, Congress intended for
§ 666 (as amended in 1986) to parallel § 215 (as amended the same
year). See Crozier, 987 F.2d at 899; see also H.R. Rep. 99-797, at 30 n.9,
1986 U.S.C.C.A.N. at 6153 n.9 (explaining that, as amended, § 666 "par-
allels the bank bribery provision (18 U.S.C. § 215)"). As Crozier also
acknowledged, Congress intended its 1986 change to§ 215 to narrow
that statute. Crozier, 987 F.2d at 899; H.R. Rep. No. 99-335, at 3-7, 1986
U.S.C.C.A.N. at 1784-1788. However, Crozier did not discuss how the
1986 amendment to § 215 narrowed that provision. Before the amend-
ment § 215(b) reached any payment "for or in connection with any trans-
action of business." 18 U.S.C. § 215(b) (Supp. II 1985). As a result of
the amendment the section now reaches only payments made "corruptly
. . . with intent to influence or reward." 18 U.S.C. § 215(a)(1) (1988).
According to the House Report, the intended effect of this amendment
to § 215 was to narrow the statute to cover only payments made or
received "corruptly," that is, "bribes or rewards" instead of inconsequen-
tial gifts. See H.R. Rep. 99-335, at 5, 6 nn.24 & 25, 1986 U.S.C.C.A.N.
at 1786, 1787 nn.24 & 25. The Report has an arguable implication for
§ 666 that Crozier did not mention: that Congress changed § 666, by
adding the "corruptly . . . with intent to influence or reward" language,
to clarify that § 666 (like § 215) prohibits only bribes. See also George
D. Brown, Stealth Statute -- Corruption, the Spending Power, and the
Rise of 18 U.S.C. § 666, 73 Notre Dame L. Rev. 247, 308-310 (1998)
(criticizing Crozier and arguing that because § 666 requires "corrupt
intent," the section prohibits only bribes).
15
nings's: if he gave money to Morris with the requisite corrupt intent,
Jennings violated the statute regardless of Morris's intent in accepting
the money. Of course, Morris's testimony regarding his own intent in
taking the payments might have some relevance to Jennings's intent
in making them. Morris's testimony is not dispositive of Jennings's
intent, however. So long as the other evidence was sufficient to prove
beyond a reasonable doubt that Jennings paid Morris with the corrupt
intent to influence or reward him, the jury could find Jennings guilty
of bribery despite Morris's testimony. We are satisfied that the evi-
dence was more than sufficient to convict Jennings of bribery.
As administrator of the VSFP program at HABC, Morris was in a
position to award no-bid contracts to companies doing housing reha-
bilitation. Jennings's company, Elias, got on the no-bid list after Jen-
nings and his son, Jennings Jr., met with Morris at a Baltimore
restaurant. Jennings Jr. was a member of the Board of Commissioners
that oversaw HABC activities, and it would be fair to infer that his
father brought him to the meeting in order to influence Morris to put
Elias on the VSFP list. Not only did Morris place Elias on the list
after this meeting, Morris also began awarding contracts to the com-
pany.
An uncharged payment of $200 from Jennings to Morris got the
ball rolling. In the context of all that happened in this case, it would
be reasonable for a juror to find that Jennings made the first payment
as well as the succeeding ones with the intent to signal Morris that
more payments were in the cards if more contracts came Elias's way.
A reasonable juror could have found that Jennings intended the three
charged payments to be either arranged-in-advance rewards in return
for Morris's official acts on behalf of Jennings's companies or paid-
in-advance bribes for Morris's future acts on behalf of the companies,
or both.
_________________________________________________________________
However, because the evidence was sufficient to prove that Jennings
committed bribery, we need not decide whether § 666 prohibits gratu-
ities. We therefore leave the definitive interpretation of § 666's language
and statutory history for another day.
16
On the same day Jennings made the first charged payment of
$2,500-$3,000 to Morris, Elias deposited an HABC check for over
$75,000. Over the next several days, Morris approved several new
jobs for Elias, sometimes raising the in-house estimates so that Elias
would be paid at the higher rate it proposed.
Jennings made the second charged payment of $2,500 to Morris the
day after Elias deposited a $46,000 check from HABC. Shortly there-
after, Morris approved more new jobs for Elias, again bumping up
some of the in-house estimates.
Jennings made the last charged payment of $1,500 the same day
Morris approved eight new projects for Elias, the same day Elias
deposited another HABC check, and the same day HABC issued a
lead testing contract to EPC, Jennings's other company.
The timing of each charged payment from Jennings to Morris
closely corresponded to a payment from HABC to Elias and to Mor-
ris's approval of new jobs for Jennings's companies. Moreover, each
time Jennings made a cash payment to Morris, he thanked Morris for
his help and told Morris that he (Jennings) could not have made it
without him. Finally, Jennings used an underhanded method to gener-
ate much of the cash for his payments to Morris: Jennings cashed two
checks written to his subcontractors at a check cashing establishment
whose proprietor forged the endorsements.
On this evidence we believe a reasonable juror could have found
that Jennings's payments to Morris were bribes, that is, gifts made
with the corrupt intent to induce Morris to engage in, or to reward him
for engaging in, official actions on behalf of Jennings's companies.
In traditional terms, Jennings paid Morris with the intent of having a
quid pro quo arrangement with him.
Even if the evidence did not necessarily link each of Jennings's
payments to a specific official act by Morris, a reasonable juror could
still conclude that Jennings paid bribes. Over a fairly short period
Morris approved over $650,000 worth of contracts for Jennings's
companies, and Jennings paid Morris over $7,000 in cash. Again, a
reasonable juror could have concluded that there was a course of con-
duct involving payments flowing from Jennings to Morris in
17
exchange for a pattern of official actions favorable to Jennings's com-
panies, and that was sufficient to convict Jennings of bribery. See
Arthur, 544 F.2d at 734. Accordingly, the district court did not err
when it denied Jennings's motion for an acquittal.
III.
Jennings's second argument is that the district court erred (1) by
failing to instruct the jury about the difference between a bribe and
a gratuity and (2) by misdefining for the jury § 666(a)(2)'s "corrupt
intent" element, thereby omitting the requirement of intent to engage
in a quid pro quo. Jennings's trial counsel did not object to the district
court's jury instruction on either of these grounds, so our review is for
plain error. See Fed. R. Crim. P. 52(b); United States v. Olano, 507
U.S. 725, 731-32 (1993). For us "to notice an error not preserved by
a timely objection, [Jennings] must show that an error occurred, that
the error was plain, and that the error affected his substantial rights."
United States v. Hastings, 134 F.3d 235, 239 (4th Cir.), cert. denied,
118 S. Ct. 1852 (1998). Even if Jennings satisfies these requirements,
we will exercise our discretion to correct the error only if failure to
do so would result in a miscarriage of justice. See id.A.
As we said in part II.B., we have left open the question of whether
§ 666 prohibits gratuities because the evidence was sufficient to con-
vict Jennings of bribery. Because we have reserved the gratuity ques-
tion, a fair review of the now-challenged jury instruction for plain
error requires us to assume (without deciding) that§ 666 does not
prohibit gratuities. This leads us back to § 201.
When instructing the jury on § 201(b), a trial court must explain
that a payment is made with "corrupt intent" only if it was made or
promised with the intent to corrupt the particular official. Not every
payment made to influence or reward an official is intended to corrupt
him. See United States v. Arthur, 544 F.2d 730, 734, 735 (4th Cir.
1976). One has the intent to corrupt an official only if he makes a
payment or promise with the intent to engage in a fairly specific quid
pro quo with that official. Of course, a court need not resort to Latin
to make this point. It simply may explain that the defendant must
18
have intended for the official to engage in some specific act (or omis-
sion) or course of action (or inaction) in return for the charged pay-
ment.
Even if a court does not properly define "corrupt intent," it can ade-
quately convey that concept to the jury by describing the exact quid
pro quo that the defendant is charged with intending to accomplish.
For example, a court may inform the jury that it may find the defen-
dant guilty only if it determines "that (defendant's name) gave (the
charged payment) corruptly, that is, with the intent to induce
(official's name) to commit (the specific official act or omission that
defendant is charged with intending to induce) ." See, e.g., Committee
on Model Criminal Jury Instructions Within the Eighth Circuit,
Manual of Model Jury Instructions for the District Courts of the
Eighth Circuit, § 6.18.201A (1996) (instruction for § 201 (b)(1)).
Such an instruction can satisfactorily convey to the jury the concept
of quid pro quo (even absent a proper definition of"corrupt intent")
if it requires the jury to find that the defendant made or promised a
specific payment in exchange for a specific official act or omission.
Even so, this type of instruction is best used to amplify, rather than
define, the concept of quid pro quo.
Additionally, when there is some evidence to suggest that the
defendant's payment was a gratuity as defined in§ 201(c), the trial
court must at the defendant's request instruct the jury on the lesser-
included offense of "illegal gratuity." See United States v. Head, 641
F.2d 174, 180 (4th Cir. 1981); Arthur, 544 F.2d at 735 (citing United
States v. Brewster, 506 F.2d 62, 83 (D.C. Cir. 1974)); United States
v. Chen, 754 F.2d 817, 825 (9th Cir. 1985). In such cases the court
must set forth the elements of the illegal gratuity offense. See United
States v. Muldoon, 931 F.2d 282, 288 (4th Cir. 1991); see also United
States v. McLamb, 985 F.2d 1284, 1293 (4th Cir. 1993) (failure to
instruct the jury on any essential element of an offense constitutes
plain error). The court also must explain that an illegal gratuity differs
from a bribe in that the gratuity is paid without corrupt intent.
On our assumption that § 666 makes the same bribe/gratuity dis-
tinction as § 201, a court instructing a jury on § 666(a)(2) must define
the "corrupt intent" element in the same way as it would if instructing
on § 201(b). Thus (we assume) a court must instruct the jury that it
19
may convict a defendant for violating § 666(a)(2) only if it finds that
the defendant intended to exchange a payment for some specific offi-
cial act or course of action. Further, because a court instructing on
§ 201(b) must explain the lesser-included offense of illegal gratuity
whenever there is some evidence supporting a gratuity theory, it fol-
lows (under our assumption) that a court instructing on § 666(a)(2)
must explain, if requested, the defense of "mere gratuity" when there
is evidence to support a gratuity theory. See United States v. Hicks,
748 F.2d 854, 857 (4th Cir. 1984) ("[I]t is settled law in this circuit
. . . that, at least upon proper request, a defendant is entitled to an
instruction submitting to the jury any theory of defense for which
there is a foundation in the evidence.").
The district court gave the following instruction to the jury on the
intent required for a § 666(a)(2) violation:
In order to establish [Jennings's] guilt .. . the government
must prove . . . that [he] gave a thing of value to [Morris]
....
....
. . . [and] that [Jennings] did so corruptly, that is, with the
intent to influence or reward [Morris] in connection with
[HABC] business. . . .
So, in order to find [Jennings] guilty . .. you must find
beyond a reasonable doubt that . . . [Jennings] corruptly
gave to [Morris] a bribe . . ., [and] that . . . [Jennings] had
the intent of influencing or rewarding [Morris] corruptly in
connection with HABC contracts obtained and performed
by Elias . . . .
If you do find that [Jennings] gave the reward or thing of
value, then the government must prove that [Jennings] did
so with a corrupt intent to influence or reward[Morris]. An
act is done with a corrupt intent if it is performed voluntarily
and intentionally -- that means willfully, not as a mistake
or accident -- and with the purpose, at least in part, of either
20
accomplishing an unlawful end or result or accomplishing
some otherwise lawful end or result by an unlawful manner
or means.
In other words, in order to prove [Jennings] guilty, the
government must prove to you . . . that he acted with corrupt
intent, that is, that he gave [Morris] money with the purpose
of influencing or rewarding him with respect to HABC busi-
ness or transactions.
The phrase to influence means that a payment was made
before the official action. The phrase to reward means that
a payment was made afterwards. Payments made to influ-
ence official action and to reward official action are both
prohibited . . . . Payments made, however, without corrupt
intent are not criminal acts.
Now, if you find the government has not proved beyond
a reasonable doubt that [Jennings] gave money to [Morris]
with corrupt intent to influence or reward him with respect
to HABC business or transactions, then you must find[Jen-
nings] not guilty.
1.
Jennings argues that the district court erred because it did not
instruct the jury on the difference between a bribe and a gratuity. Jen-
nings did not request such an instruction or object to its omission.
Omitting an explanation of the bribe/gratuity distinction was not
error, much less plain error, in this case. Jennings did not defend the
case on a gratuity theory. Rather, he disclaimed that theory by claim-
ing that he paid Morris nothing at all. And, although Morris testified
that he considered the payments to be gifts, Jennings urged the jury
to reject Morris's testimony. A gratuity instruction therefore would
have been inconsistent with Jennings's defense. In these circum-
stances, the district court did not err in failing to inject a gratuity
defense into the trial by offering an unrequested instruction on the
subject. Cf. United States v. Matzkin, 14 F.3d 1014, 1018 (4th Cir.
1994). As a result, it was appropriate for the district court to instruct
21
the jury that it could find Jennings guilty of bribery or nothing (so
long as the bribery instruction was correct).
2.
Jennings next argues that the district court plainly erred by giving
a wrong instruction on the "corrupt intent" element of bribery -- an
instruction that left out the requirement of intent to engage in a quid
pro quo. We agree.
A first glance at the instruction reveals that the court correctly
explained the meaning of the "to influence or reward" language in
§ 666(a)(2). As noted in part II.B., we assume that these words take
their common meaning under § 666: payments made to "influence" an
official are made before the official's act (or omission), while pay-
ments made to "reward" an official are made after the act. Thus,
§ 666(a)(2) prohibits all bribes, regardless of whether they were made
before or after the official act.
Yet the court's accurate explanation of the terms"influence" and
"reward" did nothing to ensure that the jury found that Jennings's
payments were, indeed, bribes. This is because the court incorrectly
defined the "corrupt intent" element of bribery, which is the intent to
engage in a relatively specific quid pro quo. A correct description of
this element is essential because the gravamen of a bribery offense is
a payment made to corruptly influence or reward an official act (or
omission). As a result, to explain properly the quid pro quo element
of § 666(a)(2), a correct definition of "corruptly" must modify the "to
influence or reward" language in the court's instruction. Without an
appropriate definition of "corruptly," an instruction mistakenly sug-
gests that § 666 prohibits any payment made with a generalized desire
to influence or reward (such as a goodwill gift), no matter how indefi-
nite or uncertain the payor's hope of future benefit.5 In sum, unless
_________________________________________________________________
5 As we said in part II.A., goodwill gifts are given with no more than
"some generalized hope or expectation of ultimate benefit on the part of
the donor." Arthur, 544 F.2d at 734. Clearly, goodwill gifts are neither
bribes nor gratuities, since they are made neither with the intent to
engage in a "relatively specific quid pro quo" with an official nor "for
22
the district court defined "corrupt intent" to include the quid pro quo
requirement, it gave an erroneous instruction on an essential element
of bribery.
In defining "corrupt intent" the trial court told the jury that "[a]n
act is done with a corrupt intent if it is performed voluntarily and
intentionally . . . and with the purpose . . . of either accomplishing an
unlawful end or result or accomplishing some otherwise lawful end
or result by an unlawful manner or means."6 This was error. The defi-
_________________________________________________________________
or because of" a specific official act (or omission). See United States v.
Johnson, 621 F.2d 1073, 1076 (10th Cir. 1980) (explaining that § 201's
bribery provision does not cover gifts made with merely a "``generalized
hope or expectation of ultimate benefit on the part of the donor'" (quot-
ing Arthur, 544 F.2d at 734)); United States v. Sun-Diamond Growers of
California, 138 F.3d 961, 967 (D.C. Cir. 1998) (explaining that § 201's
gratuity provision does not cover gifts given to an official with "some
vague hope of inducing warm feelings" or "generalized sympathy"
toward the donor), cert. granted in part, 67 U.S.L.W. 3151 (U.S. Nov. 2,
1998) (No. 98-131) and cert. denied, 67 U.S.L.W. 3261 (U.S. Nov. 2,
1998) (No. 98-374). Thus, regardless of whether§ 666(a)(2) prohibits
gratuities, it does not reach mere goodwill gifts.
6 The district court's definition of "corrupt intent" appears to be an
incomplete version of the definition from the respected treatise, Edward
J. Devitt, et al., 3 Federal Jury Practice and Instructions, § 25.09 (1990)
(pattern instructions for 18 U.S.C. § 201;"Corruptly Defined"). The trea-
tise's definition also was quoted in the legislative history of the 1986
amendment to 18 U.S.C. § 215 (discussed in part II.B.). See H.R. Rep.
No. 99-335, at 5 nn.24 & 25 (1986), reprinted in 1986 U.S.C.C.A.N.
1782, 1787 nn.24 & 25 (citing the 1977 version of the Devitt treatise).
However, the district court's definition was not entirely consistent with
the treatise's definition. The court left out the second sentence: "The
motive to act ``corruptly' is ordinarily a hope or expectation of either
financial gain or other benefit to one's self, or some aid or profit to
another." See id.; Devitt, et al., supra, § 25.09. Without this sentence the
definition does not even allude to the concept of quid pro quo. Therefore,
even if § 666 adopts this definition of corrupt intent, the district court's
definition of that term was incomplete.
However, we believe that our court in Arthur set forth a better defini-
tion of corrupt intent than the one in the Devitt treatise. As explained in
23
nition fails to explain that "corrupt intent" is the intent to induce a
specific act. Therefore, the district court's instruction on § 666(a)(2)
left out the quid pro quo requirement. Standing alone, this instruction
was plainly erroneous.
Reading the district court's jury instruction as a whole cannot save
it either. In an attempt to clarify the meaning of"corruptly," the court
_________________________________________________________________
part II.A. above, Arthur defined "corrupt intent" as the intent to engage
in "some more or less specific quid pro quo." Arthur, 544 F.2d at 734.
Also, we question the Devitt treatise's support for its definition of
"corrupt intent." The treatise attributes the definition to United States v.
Strand, 574 F.2d 993, 996 (9th Cir. 1978). See Devitt, et al., supra,
§ 25.09 (Notes). However, the Strand court did not adopt the definition
of "corruptly" that Devitt attributes to it.
In Strand the Ninth Circuit quoted the trial court's definition of "cor-
ruptly," which was later adopted by the Devitt treatise. Id. at 995-96. The
appeals court also quoted parts of the trial court's jury instruction on the
elements of the offense of bribery. See id. at 995 (stating that the defen-
dant must have accepted money "in return for being induced to . . .
violat[e] . . . his official duties" (emphasis added)). The Strand courtthen
held that "[t]he trial court's instructions, taken as a whole, correctly and
clearly charged the jury that . . . the requisite corrupt intent consisted of
the defendant's . . . acceptance of money for financial gain, in return for
a violation of his official duty, with the specific intent to violate the law."
Id. (first and fourth emphases added). Here, the Ninth Circuit was allud-
ing to the "financial gain" and "specific intent" language in the trial
court's definition of "corruptly." But the appeals court also was referring
to the trial court's discussion of the "in return for . . . violation of his offi-
cial duty" element of the offense. See id. Thus, the Ninth Circuit in
Strand did not hold that the trial court's definition of "corruptly" was suf-
ficient in itself to convey to the jury the proper intent element for bribery.
Rather, the appeals court held that the trial court's instructions, "taken as
a whole," adequately conveyed the proper intent requirement to the jury.
Therefore, Strand merely stands for the proposition that a jury instruction
may be sufficient on the whole when it allows the jury to convict only
if it finds that the defendant gave (or received) money "in return for" a
violation of some official duty. In fact, it is possible to read Strand as
adopting the Arthur definition of corrupt intent. Cf. id. at 995 (explaining
that the crucial difference between a bribe and a gratuity under § 201 is
that bribery requires the intent to engage in a"quid pro quo").
24
attempted to elaborate on that term four times. First, the court told the
jury that Jennings was guilty only if he made the payments "corruptly,
that is, with the intent to influence or reward[Morris] in connection
with the [HABC] business." Second, the court reiterated that the jury
could convict on each count only if it decided that the charged pay-
ment was made with "the intent of influencing or rewarding [Morris]
corruptly in connection with HABC contracts." Third, the court
explained that the government had to prove that Jennings gave Morris
money "with the purpose of influencing or rewarding him with
respect to HABC business or transactions." Fourth, the court summed
up by advising the jury that it had to acquit Jennings if the govern-
ment did not prove that Jennings gave money to Morris "with corrupt
intent to influence or reward him with respect to HABC business or
transactions."
If any of the court's four explanations of "corrupt intent" required
the jury to find a relatively specific quid pro quo, the jury instruction
would have been saved (despite the court's failure to include in its
core definition of "corruptly" the quid pro quo element of bribery).
This is because requiring the jury to find that Jennings intended to
trade specific payments for specific favors from Morris would have
notified the jury of the quid pro quo element of the§ 666(a)(2)
offense. But none of the court's elaborations on the meaning of "cor-
ruptly" stated that Jennings must have given money to Morris in
exchange for some specific official act or course of action (for exam-
ple, approving Elias's proposals for nearly the amount requested).
Rather, the court repeatedly charged that it was sufficient if Jennings
paid Morris to influence him (Morris) "in connection with" or "in ref-
erence to" HABC business. These allusions to HABC business were
too general because they did not describe any official acts that Jen-
nings intended to induce with his payments to Morris. These explana-
tions could have described a situation in which Jennings paid Morris
with a "[v]ague expectation[ ] of some future benefit," Allen, 10 F.3d
at 111. As a result, the court's attempt to restate the meaning of cor-
rupt intent did not necessarily require the jury to find that Jennings
had the intent to engage in a quid pro quo. Therefore, the jury instruc-
tion on § 666(a)(2) was plainly erroneous. 7
_________________________________________________________________
7 Again, this conclusion is premised on our assumption that § 666 only
outlaws bribes. We do not decide whether the instruction was proper if
25
B.
Because the district court's plainly erroneous instruction misde-
fined bribery's "corrupt intent" element by omitting the basic quid pro
quo requirement, we will assume that the instruction affected Jen-
nings's substantial rights. Yet we will not exercise our discretion to
correct the plain error if it did not "result in a miscarriage of justice,
such as when . . . the error seriously affects the fairness, integrity or
public reputation of [the] judicial proceedings." Hastings, 134 F.3d at
244 (internal quotation marks and alteration omitted). "``Central to this
inquiry is a determination of whether, based on the record in its
entirety, the proceedings against the accused resulted in a fair and
reliable determination of guilt.'" Id. (quoting United States v. Cedelle,
89 F.3d 181, 186 (4th Cir. 1996)).
We conclude that there was a fair and reliable determination of
Jennings's guilt. Jennings did not claim at trial that he paid gratuities
to Morris. Jennings took the stand and testified that he did not pay
Morris a dime, and Jennings's lawyer pressed this point at length in
his closing. The jury completely rejected Jennings's testimony. We
are convinced that a quid pro quo instruction would not have changed
the jury's assessment of Jennings's story or its determination of his
guilt.
Although Jennings now argues that at most he paid gratuities to
Morris, he can only point to two snippets of Morris's testimony to
support his argument. First, Morris testified that he never did any spe-
cial favors for Jennings's companies. Yet Morris admitted to the dubi-
ous practice of personally delivering Elias's checks for VSFP work
to Jennings's office, something Morris did not do for any other con-
tractor. Second, Morris testified that he considered the payments from
Jennings to be gifts. This seems to be a self-serving assumption on
Morris's part. Regardless, it is Jennings's intent, not Morris's, that is
dispositive.
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§ 666 prohibits gratuities. However, if § 666 does cover gratuities, we
can say with certainty that § 666 must use the word "corruptly" to mean
something totally different than does § 201 (which uses the term to dis-
tinguish between bribes and gratuities).
26
Here the evidence relevant to Jennings's intent"points inexorably
to the conclusion," Hastings, 134 F.3d at 244, that he meant to bribe
Morris, that is, he (Jennings) intended to engage in a quid pro quo
with Morris. Jennings was not just tipping Morris, without corrupt
intent, for official action that Jennings expected to occur anyway.
Morris had the power to decide whether (and for what dollar amount)
rehabilitation and lead testing contracts flowed to Jennings's compa-
nies. Morris repeatedly awarded such contracts while taking large
cash payments from Jennings. Each time Jennings paid Morris, Jen-
nings thanked Morris for his help and told him (in so many words)
that his help was essential. This pattern of behavior confirmed the
existence of a quid pro quo: there was a course of conduct involving
payments from Jennings to Morris "in exchange for a pattern of offi-
cial actions favorable to [Jennings's companies]." Arthur, 544 F.2d at
734. It is simply implausible that Jennings continued to pay Morris
with no intent to induce him to continue awarding contracts at favor-
able prices. Finally, when Jennings learned that one of his subcontrac-
tors had registered a serious complaint about Jennings to Morris,
Jennings boasted of his influence with Morris, telling the subcontrac-
tor that his complaints were futile. This evidence helps to confirm that
Jennings's intent all along was to induce Morris to misuse his posi-
tion, a classic sign of bribery. Jennings' conviction was not a miscar-
riage of justice, and we will not exercise our discretion to set it aside.8
The conviction is
AFFIRMED.
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8 Jennings also argues that the district court abused its discretion by
admitting evidence that Jennings Jr. was on HABC's governing board
and evidence about Jennings Jr.'s involvement with his father's com-
pany, Elias. We have considered this point and find no merit in it.
27