United States v. Vincent R. Perrin, Jr., David L. Levy and Duffy J. Lafont, Jr. ( 1978 )

ALVIN B. RUBIN, Circuit Judge,

dissenting:

Sound public policy might induce Congress to proscribe corruption of private persons in the Travel Act. In my view, however, it has not yet seen fit to do so. Therefore, I respectfully dissent.

One of the classic limitations in the enforcement of criminal law, which is embedded implicitly in the Due Process Clause of the Constitution, is summed up in the phrase, “Nulla poena sine lege” — there should be no punishment without prior statutory mandate. My brethren require four pages of dialectic to determine that the unadorned word “bribery” in the Travel Act provides authority for the punishment by the Federal Government of “commercial bribery.” The layman would scarcely choose so uncertain a route to define a clear proscription, nor indeed would the Second Circuit, United States v. Brecht, 2 Cir. 1976, 540 F.2d 45, cert. denied, 1977, 429 U.S. 1123, 97 S.Ct. 1160, 51 L.Ed.2d 573.

We cannot truly ascribe to Congress any intention either to include or exclude commercial corruption; Congress did not deal with the problem. As one scholar has said:

The difficulties of so-called interpretation arise when the Legislature has had no meaning at all; when the question which is raised on the statute never occurred to it; whén what the judges have to do is, not to determine what the Legislature did mean on a point which was present to its mind, but to guess what it would have intended on a point not present to its mind, if the point had been present.¹

We are thus in the position, in resolving this case, of deciding what Congress would have done had it debated the appropriate scope of the Travel Act with regard to commercial corruption.

My brethren find these footprints to guide them on the trail of meaning: first, common experience teaches us that organized crime may attempt to corrupt private citizens; second, Congress, in other statutes, has proscribed bribery of persons who are not public officials; third, the Supreme Court, in United States v. Nardello, 1969, 393 U.S. 286, 89 S.Ct. 534, 21 L.Ed.2d 487, refused to limit the word “extortion” to its common law meaning and defined it to include blackmail.

With deference, I must say that much of this seems to me to constitute reasoning backward from the result desired. That common experience teaches us the breadth of organized crime is not a reason to say that Congress did include commercial corruption in the word “bribery,” although it may well someday prove ample reason for a legislator to decide to do so. Indeed, what “our common experience” teaches us as judges about organized crime, I do not know; I know nothing about it that may be noticed judicially. Federal Rules of Evidence, Rule 201. Moreover, whatever common experience has taught judges in this regard is, in any event, presumably known also by legislators. We thus return to the question why, in the face of such experience, did Congress not proscribe commercial bribery specifically. That inquiry is all the more troublesome because, as the majority notes, Congress elsewhere saw fit to proscribe specifically, and not generically, forms of bribery that go beyond the offense as known at common law.

Let me place a few grains on the side of the scale counterbalancing the arguments used by my brethren.² As set forth in United States v. Brecht, supra, only 13 states had commercial bribery statutes in 1960, the year before the Travel Act was enacted. United States v. Brecht, supra, 540 F.2d at 48. At least six states, as recently as 1976, did not even mention the word “bribery” in defining the offense now commonly called commercial bribery. Id. at 49 n.6. In Louisiana, as in New York and most other states that proscribe commercial bribery, the offense prohibited is a misdemeanor. It is punishable in Louisiana by a maximum of imprisonment for six months and a fine of no more than $500, or both. LSA-R.S. 14:73. Because of the majority’s holding, the added element of interstate travel escalates commercial bribery to a federal crime, and to a felony punishable by imprisonment for up to five years and a fine of up to $10,000, or both. 18 U.S.C. § 1952(a).³

None of these factors is conclusive. Together, however, they weigh enough at least to balance, and, in my opinion, to tilt the scales to the other side. I would not read a criminal statute whose meaning is so ambiguous as justifying the interpretation placed on it by the majority and our colleagues of the Fourth Circuit.

Some passing reference to the factual context of this case may be appropriate in conclusion: the fish the Government caught in this Travel Act net were small fry. Its plan was to land a person who is reputed to be a criminal shark. Without reciting the facts in detail, it is evident that his possible involvement was scent to the F.B.I. The target refused the bait offered him by Willis, Perrin, Levy, and LaFont. Each of them, if guilty of anything, can be prosecuted under state law. I would leave them and the record of the trial to state authorities; I would leave to Congress the amendment of the statute to make the mesh of the net smaller if it seeks to catch the commercially corrupt in the future.

1 . Gray, Nature and Sources of the Law: Statutes 173 (1921 ed.).

2 . The Report of the Committee on the Judiciary, United States Senate, to accompany S. 1437, the proposed new federal criminal code, S.R. 95-605, 95th Cong., 2d Sess. (1977), at 388, interprets the present bribery law as contemplating “the violation of the public servant’s duty.” It later states, seeming to make ambiguous what was clear, that the bribe itself is a “quid pro quo for the violation of an official or legal duty.” Id. (Emphasis supplied.) Assuming that an expansive reading of this interpretation correctly construes 18 U.S.C. § 1952, the Travel Act would still appear to be aimed at a narrower range of conduct than is reached by Louisiana’s commercial bribery statute; under the wording of the state statute, see Memorandum Opinion at 632, note 3, supra, it is not an element of the offense that the bribe-giver seek a violation of the bribe-taker’s legal duties.

3 . The offenses proscribed by the Pennsylvania blackmail statutes involved in United States v. Nardello, supra, Act of June 24, 1939, Pub.L. 872, §§ 802, 803 (current version at 18 Pa. Const.Stat.Ann. §§ 3923(a)(2) and (a)(3) (Purdon)), are punishable under current law by two years of imprisonment, 18 Pa.Const.Stat.Ann. §§ 106(d) and 1104(2), the same maximum state penalty for political bribery, Act of June 24, 1939, Pub.L. 872, § 4318 (current version at 18 Pa.Const.Stat.Ann. § 4702), unless the offender threatens “to commit a crime” or makes a threat “with intent to influence a judicial or administrative proceeding,” 18 Pa.Const.Stat. Ann. § 4702(c) (Purdon), in which case the maximum penalty is seven years of imprisonment, 18 Pa.Const.Stat.Ann. § 1103(3) (Prudon).