Over the past approximate decade, the Supreme Court has issued several decisions regarding the scope of federal criminal statutes – including in the general bribery context – and the results are often unfavorable to the Department of Justice.
It happened again yesterday in Snyder v. U.S. (see here for the previous post summarizing the case) as the Supreme Court (6-3) rejected the DOJ’s expansive interpretation of a federal law for at least six reasons.
The majority opinion by Justice Brett Kavanaugh provides the following factual background (various internal citations omitted).
“This case involves the former mayor of Portage, Indiana. Portage is a city in northwest Indiana with a population of about 38,000.
Like other States, Indiana criminalizes bribery committed by state and local officials. Indiana also prescribes civil penalties such as fines, reprimands, and disqualification from state employment if state officials accept gratuities in violation of the State’s Code of Ethics.
But Indiana does not impose general criminal or civil prohibitions on local officials who accept gratuities, leaving such regulation to the local governments themselves. As relevant here, the City of Portage sets limits on the gifts that local officials can accept from contractors doing business with the City.
In 2013, the City of Portage awarded two contracts to a local truck company, Great Lakes Peterbilt, to purchase trash trucks. In total, the City paid about $1.1 million for five trucks.
In 2014, Peterbilt cut a $13,000 check to James Snyder, who was the mayor of Portage (and had been at the time of the contracts). The FBI and federal prosecutors suspected that the payment was a gratuity for the City’s trash truck contracts. But Snyder said that he had also agreed to be a contractor for Peterbilt, providing consulting services. (Like many jurisdictions around the country, neither Indiana nor Portage apparently prohibited local officials from obtaining outside employment.) Snyder said that the payment was for his consulting services.
Snyder has never been charged by state prosecutors for bribery. And he has never been charged or disciplined by Portage for violating the City’s gift rules. The Federal Government charged and a federal jury convicted Snyder of accepting an illegal gratuity (the $13,000 check from Peterbilt) in violation of 18 U. S. C. §666(a)(1)(B). The Government asked for about a 4- to 5-year prison sentence. The District Court sentenced Snyder to 1 year and 9 months in prison.
On appeal, Snyder argued that §666 criminalizes only bribes, not gratuities. The U. S. Court of Appeals for the Seventh Circuit disagreed based on that court’s precedent interpreting §666 to cover both bribes and gratuities. So the Court of Appeals affirmed the conviction.
In light of a split in the Courts of Appeals over whether §666 criminalizes gratuities as well as bribes, this Court granted certiorari.”
In summary fashion, Justice Kavanaugh wrote:
“Section 666 of Title 18 makes it a crime for state and local officials to “corruptly” solicit, accept, or agree to accept “anything of value from any person, intending to be influenced or rewarded” for an official act. §666(a)(1)(B). That law prohibits state and local officials from accepting bribes that are promised or given before the official act. Those bribes are punishable by up to 10 years’ imprisonment. The question in this case is whether §666 also makes it a crime for state and local officials to accept gratuities—for example, gift cards, lunches, plaques, books, framed photos, or the like—that may be given as a token of appreciation after the official act. The answer is no.”
As to the general legal framework and the difference between bribes and gratuities, the decision states:
“Federal and state law distinguish between two kinds of payments to public officials—bribes and gratuities. As a general matter, bribes are payments made or agreed to before an official act in order to influence the official with respect to that future official act. American law generally treats bribes as inherently corrupt and unlawful.
But the law’s treatment of gratuities is more nuanced. Gratuities are typically payments made to an official after an official act as a token of appreciation. Some gratuities can be problematic. Others are commonplace and might be innocuous. A family gives a holiday tip to the mail carrier. Parents send an end-of-year gift basket to their child’s public school teacher. A college dean gives a college sweatshirt to a city council member who comes to speak at an event. A state legislator’s neighbor drops off a bottle of wine to congratulate her for her work on a new law.
As those examples suggest, gratuities after the official act are not the same as bribes before the official act. After all, unlike gratuities, bribes can corrupt the official act— meaning that the official takes the act for private gain, not for the public good. That said, gratuities can sometimes also raise ethical and appearance concerns. For that reason, Congress, States, and local governments have long regulated gratuities to public officials.
Not surprisingly, different governments draw lines in different places. For example, some States allow public officials to accept gifts below certain threshold amounts. […]
Some States bar accepting any gifts for specific activities, like certain speaking engagements. […] Some States make accepting gifts for official conduct a misdemeanor. […] Other States make it a felony. […] Many States make exceptions for certain gifts, such as gifts from friends or family, travel reimbursements, campaign contributions, and ceremonial gifts like honorary degrees and plaques.
Like the States, the counties, cities, and towns of America take various approaches to regulating gratuities to their officials. Just within the State of Indiana, where the current case arose, some local governments set a gift limit of $50, or $100, or $200, or $300.
Some prohibit gifts only from business entities currently doing business with the local government. […] Others restrict gifts from businesses bidding for government contracts.
With respect to gratuities to state and local officials, many of those officials are part-time and are allowed to hold outside employment. That reality can create complications for regulating gifts to those officials, and the rules often reflect that reality.
Meanwhile, Congress has established federal standards for federal officials. In 1962, Congress passed and President Kennedy signed into law 18 U. S. C. §201, which contains comprehensive prohibitions on bribes and gratuities to federal officials. As to gratuities, that statute imposes criminal penalties on federal officials who seek or accept “anything of value” for “any official act.” 18 U. S. C. §201(c)(1)(B).
Importantly, because bribery can corrupt the official act, Congress treats bribery as a far more serious offense than gratuities. For example, if a federal official accepts a bribe, federal bribery law provides for a 15-year maximum prison sentence. See 18 U. S. C. §201(b). By contrast, if a federal official accepts a prohibited gratuity, federal gratuities law sets a 2-year maximum prison sentence. See §201(c).
In the 1970s and early 1980s, confusion emerged in the Courts of Appeals over whether the federal bribery and gratuities laws in §201(b) and §201(c) applied not only to federal officials but also to state and local officials. In response, Congress passed and President Reagan signed a law now codified at 18 U. S. C. §666. As relevant here, §666 originally extended the gratuities prohibition in §201(c) to most state and local officials.
But after only two years, Congress reversed course. In 1986, Congress amended §666 and thereby avoided the law’s “possible application to acceptable commercial and business practices.” As a result of its amendment in 1986, the text of §666 for state and local officials now closely resembles the bribery provision for federal officials, §201(b), rather than the gratuities provision for federal officials, §201(c). As relevant here, §666 makes it a crime for most state and local officials to “corruptly” solicit, accept, or agree to accept “anything of value” “intending to be influenced or rewarded in connection with” any official business or transaction worth $5,000 or more. That crime carries a 10-year maximum prison sentence. §666(a).”
Returning to the specific question presented in the case, the opinion states:
“The question in this case is whether 18 U. S. C. §666(a)(1)(B) makes it a federal crime for state and local officials to accept gratuities for their past official acts. The answer is no. Six reasons, taken together, lead us to conclude that §666 is a bribery statute and not a gratuities statute—text, statutory history, statutory structure, statutory punishments, federalism, and fair notice.
First is the text of §666. Section 666(a)(1)(B) makes it a crime for state and local officials to “corruptly” accept a payment “intending to be influenced or rewarded” for an official act. Congress modeled the text of §666(a)(1)(B) for state and local officials on §201(b), the bribery provision for federal officials. Section 201(b) similarly makes it a crime for federal officials to “corruptly” accept a payment “in return for” “being influenced” in an official act. By contrast, §666 bears little resemblance to §201(c), the gratuities provision for federal officials, which contains no express mens rea requirements and simply makes it a crime for federal officials to accept a payment “for or because of any official act.”
Therefore, the dividing line between §201(b)’s bribery provision and §201(c)’s gratuities provision is that bribery requires that the official have a corrupt state of mind and accept (or agree to accept) the payment intending to be influenced in the official act. See United States v. Sun Diamond Growers of Cal., 526 U. S. 398, 404–405 (1999). Section 666 shares the defining characteristics of §201(b)’s bribery provision: the corrupt state of mind and the intent to be influenced in the official act. The statutory text therefore strongly suggests that §666—like §201(b)—is a bribery statute, not a gratuities statute.
Second is the statutory history, which reinforces that textual analysis. In 1984, when first enacting §666 for state and local officials, Congress borrowed language from the gratuities statute for federal officials, §201(c). But just two years later, in 1986, Congress overhauled §666, eliminated the gratuities language, and instead enacted the current language that resembles the bribery provision for federal officials, §201(b). Perhaps Congress in 1986 concluded that federally criminalizing state and local gratuities would significantly intrude on federalism. Whatever the impetus, we know that Congress decided in 1986 to change the law and to model §666 on §201(b), the bribery statute, and not on §201(c), the gratuities statute. It therefore would be strange to interpret §666, as the Government suggests, to mean the same thing now that it meant back in 1984, before the 1986 amendment. We must respect Congress’s choice in 1986.
Third is the statutory structure. The Government posits that Congress prohibited bribes and gratuities to state and local officials in a single statutory provision, §666(a)(1)(B). Such a statute would be highly unusual, if not unique. The Government identifies no other provision in the U. S. Code that prohibits bribes and gratuities in the same provision. That is because bribery and gratuities are “two separate crimes” with “two different sets of elements.” Sun Diamond, 526 U. S., at 404. Therefore, §201(b) makes it a crime for federal officials to accept bribes, while a separate provision, §201(c), makes it a crime for federal officials to accept certain gratuities. The absence of a separate gratuities provision in §666 reinforces that §666 is a bribery statute for state and local officials, not a two-for-one bribery-and-gratuities statute.
Fourth are the statutory punishments. For federal officials, Congress has separated bribery and gratuities into two distinct provisions of §201 for good reason: The crimes receive different punishments that “reflect their relative seriousness.” Sun-Diamond, 526 U. S., at 405. For example, accepting a bribe as a federal official is punishable by up to 15 years in prison, while accepting an illegal gratuity as a federal official is punishable by only up to 2 years. Compare §201(b) with §201(c).
If the Government were correct that §666 also covered gratuities, Congress would have created an entirely inexplicable regime for state and local officials. For one, even though bribery has been treated as a far more serious offense, Congress would have authorized the same 10-year maximum sentences for (i) gratuities to state and local officials and (ii) bribes to state and local officials. See Sun Diamond, 526 U. S., at 405. In addition, Congress would have authorized punishing gratuities to state and local officials five times more severely than gratuities to federal officials—10 years for state and local officials compared to 2 years for federal officials.
The Government cannot explain why Congress would have created such substantial sentencing disparities. We cannot readily assume that Congress authorized a 2-year sentence for, say, a Cabinet Secretary who accepts an unlawful gratuity while authorizing a 10-year sentence on a local school board member who accepts an identical gratuity. What sense would that make? In short, the inexplicable anomalies ushered in by the Government’s approach powerfully demonstrate that §666 is a bribery statute.
Fifth is federalism. Interpreting §666 as a gratuities statute would significantly infringe on bedrock federalism principles. As this Court has long recognized, a State “defines itself as a sovereign through the structure of its government, and the character of those who exercise government authority.” McDonnell v. United States, 579 U. S. 550, 576 (2016). Therefore, as a general matter, States have the “prerogative to regulate the permissible scope of interactions between state officials and their constituents.”
As noted above, state and local governments have adopted a variety of approaches to regulating state and local officials’ acceptance of gratuities. Those differing approaches reflect nuanced state and local policy judgments about when gifts expressing appreciation to public officials for their past acts cross the line from the innocuous to the problematic.
The carefully calibrated policy decisions that the States and local governments have made about gratuities would be gutted if we were to accept the Government’s interpretation of §666. After all, §666 covers virtually all state and local officials—about 19 million nationwide. So reading §666 to create a federal prohibition on gratuities would suddenly subject 19 million state and local officials to a new and different regulatory regime for gratuities. In other words, a county official could meticulously comply with her county’s local gratuities rules—say, by declining a $200 gift card but accepting a $100 gift card from a neighbor as thanks for her diligent work on a new park—but still face up to 10 years in federal prison because she accepted a thing of value in connection with an official act.
We should hesitate before concluding that Congress prohibited gratuities that state and local governments have allowed for their officials. After all, Congress does not lightly override state and local governments on such core matters of state and local governance. And the principle articulated by this Court in Sun-Diamond fits this case as well: A “narrow, rather than a sweeping, prohibition is more compatible with the fact that” this statute “is merely one strand of an intricate web of regulations, both administrative and criminal, governing the acceptance of gifts and other self-enriching actions by public officials.”
In short, federalism principles weigh heavily in favor of reading §666 as a bribery statute and not as a gratuities law.
Sixth is fair notice. The Government’s interpretation of the statute would create traps for unwary state and local officials.
The Government had to choose between two options for how to read §666. The Government could read §666 to ban all gratuities, no matter how trivial, in connection with covered official acts. That option might be clear enough. But that draconian approach would border on the absurd and exacerbate the already serious federalism problems with the Government’s reading of §666.
Alternatively, the Government could recognize the irrationality of reading §666 to criminalize all such gratuities. And to deal with the overbreadth problems, the Government could make atextual exceptions on the fly.
The Government opted for the second approach, seeking to soothe concerns about overbreadth by saying that the statute, even under its view, would not cover “innocuous” or “obviously benign” gratuities.
But that effort to address those overbreadth concerns has simply moved the Government from one sinkhole to another. The flaw in the Government’s approach—and it is a very serious real-world problem—is that the Government does not identify any remotely clear lines separating an innocuous or obviously benign gratuity from a criminal gratuity. The Government simply opines that state and local officials may not accept “wrongful” gratuities.
That is no guidance at all. Is a $100 Dunkin’ Donuts gift card for a trash collector wrongful? What about a $200 Nike gift card for a county commissioner who voted to fund new school athletic facilities? Could students take their college professor out to Chipotle for an end-of-term celebration? And if so, would it somehow become criminal to take the professor for a steak dinner? Or to treat her to a Hoosiers game?
The Government offers no clear federal rules for state and local officials. So how are state legislators, city council members, school board officials, building code inspectors, probation officers, human resource directors, police officers, librarians, snow plow drivers, court clerks, prison guards, high school basketball coaches, mayors, zoning board members, animal control officers, social workers, firefighters, city planners, and the entire army of 19 million state and local officials to know what is acceptable and what is criminalized by the Federal Government? They cannot. The Government’s so-called guidance would leave state and local officials entirely at sea to guess about what gifts they are allowed to accept under federal law, with the threat of up to 10 years in federal prison if they happen to guess wrong. That is not how federal criminal law works.
Responding to the legitimate concern that the federal lines are unknown and unknowable to state and local officials, the Government advances the familiar plea that federal prosecutors can be trusted not to enforce this statute against small-time violators. But as this Court has said time and again, the Court “cannot construe a criminal statute on the assumption that the Government will use it responsibly.”
[…]
When construing a statute like this that regulates state and local officials, this Court’s precedents caution against leaving the statute’s “outer boundaries ambiguous” and involving the “Federal Government in setting standards of good government for local and state officials.” And the Court has emphasized that a “statute in this field that can linguistically be interpreted to be either a meat axe or a scalpel should reasonably be taken to be the latter.” Sun Diamond, 526 U. S., at 412. So it is here.
[…]
In sum, §666 tracks §201(b), the bribery provision for federal officials. A state or local official can violate §666 when he accepts an up-front payment for a future official act or agrees to a future reward for a future official act. But a state or local official does not violate §666 if the official has taken the official act before any reward is agreed to, much less given. Although a gratuity offered and accepted after the official act may be unethical or illegal under other federal, state, or local laws, the gratuity does not violate §666.
The Government asks this Court to adopt an interpretation of §666 that would radically upend gratuities rules and turn §666 into a vague and unfair trap for 19 million state and local officials. We decline to do so. Section 666 is a vital statute, but its focus is targeted: Section 666 proscribes bribes to state and local officials, while allowing state and local governments to regulate gratuities to state and local officials. Within constitutional bounds, Congress can always change the law if it wishes to do so. But since 1986, it has not, presumably because Congress understands that state and local governments may and often do regulate gratuities to state and local officials. We reverse the judgment of the U. S. Court of Appeals for the Seventh Circuit and remand the case for further proceedings consistent with this opinion.”
In a concurring opinion, Justice Neil Gorsuch wrote:
“Call it what you will. The Court today speaks of inferences from the word “corruptly,” the statute’s history and structure, and associated punishments. It discusses concerns of fair notice and federalism. But the bottom line is that, for all those reasons, any fair reader of this statute would be left with a reasonable doubt about whether it covers the defendant’s charged conduct. And when that happens, judges are bound by the ancient rule of lenity to decide the case as the Court does today, not for the prosecutor but for the presumptively free individual.
Lenity may sometimes, as it does today, go unnamed. It may be deployed under other guises, too. “Fair notice” or “fair warning” are especially familiar masks. […] Other times, we clothe lenity in its corollary—that courts cannot “rely upon prosecutorial discretion to narrow the” scope of an “otherwise wide-ranging” criminal law. […] And in still other instances, we do much the same when we speak of the “restraint” necessary “in assessing the reach of a federal criminal statute.”
But make no mistake: Whatever the label, lenity is what’s at work behind today’s decision, just as it is in so many others. Rightly so. I am pleased to join.”
