When you go to a restaurant, you have to pay for the meal – there’s a quid pro quo. But you don’t have to leave a tip (we’re leaving aside situations where you have a large party and they automatically add 18%). A tip you leave because you want to note and appreciate the service you received. Maybe a tip is expected, but a waiter can’t sue you for not leaving one.
So too with bribes, gratutities, and law makers. If a member of Congress makes a deal with you where you’ll give him $10,000 in exchange for voting for your favorite bill, that’s a bribe. But if he votes for your favorite bill and then you send him $10,000 because you’re excited about his vote, that’s a gratuity.
As the Supreme Court has said,
for bribery there must be a quid pro quo — a specific intent to give or receive something of value in exchange for an official act. An illegal gratuity, on the other hand, may constitute merely a reward for some future act that the public official will take (and may already have determined to take), or for a past act that he has already taken.
A high-profile case in Puerto Rico highlights the difference – and establishes that, in the First Circuit at least – a gratuity is not a violation of 18 U.S.C. § 666.
Section 666 is the federal statute that prohibits corrupt acts with state and local government actors. It says that any one who is an agent of a state or local government and “corruptly solicits or demands for the benefit of any person, or accepts or agrees to accept, anything of value from any person, intending to be influenced or rewarded in connection with” that person’s work as an agent of the government, has violated section 666(a)(1).
Similarly, anyone who “corruptly gives, offers, or agrees to give anything of value to any person, with intent to influence or reward” any one who is an agent of a state or local government violates section 666(a)(2).
The First Circuit held that this language doesn’t prohibit mere gratuities.
What Happens In Vegas
Juan Bravo Fernandez – or Mr. Bravo – was the President of Ranger American, a private security firm.
Hector Martinez Maldondad – Mr. Martinez – was a member of the Senate of the Commonwealth of Puerto Rico.
Mr. Martinez was the chair of the Public Safety Committee. In 2005, it was considering some legislation that would have been very favorable to Mr. Fernandez – Senate Projects 410 and 471.
As the First Circuit tells it in United States v. Martinez:
On May 14, 2005, prominent Puerto Rican boxer Felix “Tito” Trinidad was scheduled to fight Ronald Lamont “Winky” Wright at the MGM Grand Hotel & Casino in Las Vegas, Nevada. On March 2, Bravo purchased four tickets to the fight at a cost of $1,000 per ticket. The same day, Martinez submitted Senate Project 410 for consideration by the Puerto Rico Senate. On April 20, Martinez presided over a Public Safety Committee hearing on Senate Project 471 at which Bravo testified. The next day, Bravo booked one room at the Mandalay Bay Hotel in Las Vegas. On May 11, Martinez issued a Committee report in support of Senate Project 471.
I suppose it goes without saying that the trips were really nice.
Both men were charged with a number of things – including charges involving the giving or receiving of a bribe in violation of 18 U.S.C. § 666.
The Jury Instructions
Here’s part of how the jury was instructed:
I instruct you that a defendant is not required to have given, offered, or agreed to give a thing of value before the business, transaction, or series of transactions. Rather, the Government may prove that defendant Bravo gave, offered, or agreed to give the thing of value before, after, or at the same time as the business, transaction, or series of transactions. Therefore, the government does not need to prove that defendant Bravo gave, offered, or agreed to offer the trip to Las Vegas before defendant Martínez performed any official action or series of acts.
Of course, if you give someone cash after they perform a service, instead of before, that’s a tip, rather than a bribe.
Another part of the instruction makes it a little clearer:
the Government does not need to prove that defendant Martinez solicited, demanded, accepted or agreed to accept the trip to Las Vegas before defendant Martinez performed any official act or series of acts.
Again, this looks a whole lot like the government can get a conviction if there’s just some relationship between the money and the official act, rather than that the money caused the official act – which you’d need for bribery.
The government’s closing argument didn’t walk back from this. The government said:
These instructions clarify that — that it doesn’t matter if the trip was offered before official acts were taken, at the same time official acts were taken, or after official acts were taken, because the crime is offering or accepting the trip with intent to influence or reward.
These instructions, on these facts, allowed the First Circuit to conclude that the jury was instructed that Mr. Martinez or Mr. Bravo could be convicted if they merely received a gratuity, rather than a bribe.
Does section 666 criminalize gratuities?
The First Circuit said yes.
The statute criminalizes anyone who gives something to a state legislator (and others) with an intent to “influence or reward” that person. A number of circuits have held that the “or reward” bit of this includes gratuities. United States v. Anderson, 517 F.3d 953 (7th Cir. 2008); United States v. Ganim, 510 F.3d 134, 150 (2d Cir. 2007); United States v. Zimmerman, 509 F.3d 920, 927 (8th Cir. 2007).
The other way to read this is that the “or reward” applies to situations where the agreement was made before the official action, but the payment came later. If that’s the case – and the deal was hatched, and “reward” just means paying off the previously agreed on sum in exchange for the official act – then this applies to bribes. It doesn’t additionally criminalize bribery.
So, if you go into a restaurant and tell the waiter “I’ll give you a $20 tip if you never let my iced tea glass get empty” then, because there’s a qui pro quo, you’ve converted the tip from a gratuity to a bribe (except that it’s completely legal to refill an iced tea glass frequently).
The First Circuit thought this was a plausible reading – and also noted that if you don’t read it this way, it gets odd.
There are different punishments for bribes and gratuities if you’re bribing a federal official. If it’s a bribe of a federal official, the statutory maximum is 15 years. If it’s just a gratuity, then the max is two years.
But for section 666 applying to state officials, any violation has a statutory maximum of 10 years.
The First Circuit thought it would be pretty odd to have such a high statutory maximum if Congress intended section 666 to apply to gratuities, that are normally capped at 2 years for federal officials.
For these reasons, and others, the convictions were vacated.