Perrin v. United States – Oral Argument – October 03, 1979 (Part 1)

Media for Perrin v. United States

Audio Transcription for Opinion Announcement – November 27, 1979 in Perrin v. United States
Audio Transcription for Oral Argument – October 03, 1979 (Part 2) in Perrin v. United States

del

Warren E. Burger:

The case is submitted, we’ll hear arguments next in Perrin against the United States.

Mr. Boudin, I think you may proceed whenever you’re ready.

Leonard B. Boudin:

Mr. Chief Justice and may it please the Court.

The issue in this case, one of statutory construction with constitutional implications is whether Congress in using the term “bribery” in 18 U.S.C. 1952, the Travel Act, intended to refer to bribery of public officials as used in the common law or rather included the term “commercial bribery” and that which is involved solely in this case.

The Travel Act, this Court will recall, insofar as relevant here makes it a crime, a felony punishable by $5000 or five years in prison, $10,000 to use interstate commerce including the mails for the purpose of facilitating an unlawful activity and one of the unlawful activities described here is bribery.

The facts not between before this Court, due to the limited certiorari, it is sufficient for me to say that the petitioner is a private consulting geologist who was convicted after a jury trial charged with participating in the bribery of a private employee of a private concern and that there appear to be two telephone calls and one interstate shipment of non-incriminating data involved in this case.

Now, in construing the statute and it’s the most interesting problem of statutory construction, we have here, the problem is to determine what Congress and only Congress intended in the bribery act, not to determine what a state intended or as Nardello to which I will refer later, points out with a state label was.

What did Congress intend?

In considering the intent of Congress, we have the familiar but controlling and important canons of construction in a case of this kind.

The first, of course, is whether the term “bribery” has plain meaning and I must say that the Government’s arguments in bribery is not to be considered as common law formulation but it would to be determined by the Oxford Dictionary or Webster’s, does not seem persuasive particularly if one realizes that if one pertains to the legal dictionaries like Bouvier or Black, one finds that they use the term bribery including the most recent addition of Black in the technical common law sense.

Just to take one example of Black, I’ll just read the first few lines, “The offering, giving, receiving or soliciting of anything of value to influence action as official or in discharge of legal or public duty.”

In contrasting these two definitions, one has to remember Mr. Justice Holmes’ statement which I read recently in — in Justice Frankfurter’s Cardozo lectures 30 years ago that Congress is presumed to have intended to use familiar, legal expressions in their familiar legal sense.

So, I would say that on balance, we’d probably come out better in our construction, but let us turn to the legislative history.

As Mr. Justice Marshall pointed out in the Rewis case, it is a very meager or limited legislative history.

The hearings clearly indicate as Nardello says and Rewis says that this was an attempt by Attorney General Kennedy to give a package of organized crime legislation to the Congress.

And there are statements made particularly in the course of the testimony before the Committee by Attorney General Kennedy himself and in a supplementary letter to Congressman Sellar signed by Deputy Attorney General, now Mr. Justice White, indicating that this was an organized crime statute and that shakedowns were used by organized crime.

The interesting thing is that there is no testimony in the record and no claim by Attorney General Kennedy or by his assistant Mr. Miller of the criminal division, that organized crime ever used commercial bribery.

And what there is in this record are two or three very interesting statements which we have quoted in our brief of Attorney General Kennedy in which the subject of bribery, the only times when it is mentioned in the course of the Senate and House hearings is always with reference to the bribery of government officials.

William H. Rehnquist:

Mr. Boudin.

Leonard B. Boudin:

Yes sir, Your Honor.

William H. Rehnquist:

Do you — do you feel that the old card decisions of this Court of Mr. Justice Story Hudson, Goodwin and so forth help or hinder you when they say there is no federal common law of crimes.

Leonard B. Boudin:

I don’t think they have any help or hindrance.

They are merely statements that we — federal code doesn’t include common law crimes but they are not a reason why Congress does not turn to the common law definition and while the courts don’t look to a common law definitions to determine what Congress had in mind and I think actually, that was done to some extent in — in the Dunn case but I will come to that, Your Honor.

As I say – sorry.

John Paul Stevens:

In the legislative history, is there any reference to labor racketeering and bribery of labor officials (Voice Overlap) —

Leonard B. Boudin:

Yes, that the Government’s — that the Government in its brief made reference to some problems of labor corruption but the Court will note, which I have regrettably not noted in my reply brief, that that referred to a different bill, a different bill dealing with immunity which was before the Congress and which referred to labor and the Taft-Hartley law.

It never — there was never any reference in discussing this bill to labor racketeering.

I hope the Court will read that record to see that I am correct.

Now, the Government says by referring to current books that labor unions are — labor — sorry, that organized crime now does use commercial bribery.

But it’s a little hard to take a book written in 1972 or 1973 and to draw the conclusion that this Congress in 1961 and these committees were considering a subject they discussed, namely the use of commercial bribery by organized crime.

Audio Transcription for Oral Argument – October 03, 1979 (Part 2) in Perrin v. United States

del

Warren E. Burger:

Well, Mr. Boudin (Voice Overlap) —

Leonard B. Boudin:

Yes, Your Honor.

Warren E. Burger:

What is the occasion for — for the courts to dwell deeply into the legislative history unless it’s assumed that the word “bribery” is ambiguus?

Leonard B. Boudin:

Oh, yes.

Well, I think that I must say that the word “bribery” here — I would prefer to say that the word “bribery” has an absolutely clear meaning and should be considered in its common law definition.

But as I balance the dictionaries and as I realize the history of bribery for so many years and the use in — in the penal codes and the use by draftsman to which I will refer in a few minutes, you see that bribery has a very special limited official connotation.

One for example, were to look at the federal criminal code as it existed in 1961, one would see that Chapter 11 refers to bribery, graft and conflicts of interests.

And the one section there entitled “bribery” deals with Section 201 with the bribery of government officials.

I would like to be able to say that the situation is absolutely clear.

There is no dispute to what the word “bribery” means, but candor requires that we assess the situation and say, “Yes, this term as used in the statute as ambiguous and that’s why we turn to the legislative history and to the other canons which I will refer.

Now, just to continue for a moment if I may, Mr. Chief Justice, with respect to legislative history, as I said, I don’t think that given that the — that a book written currently or even a book written earlier which was not before the Committee and which it didn’t consider is very persuasive evidence as to the meaning of the word “bribery” and I prefer, if I may say so, the words of Judge Gurfein who wrote the Brecht opinion on which we rely in the Second Circuit and is described —

Warren E. Burger:

We’ll — we’ll resume there at 1 o’clock Mr Boudin.

Leonard B. Boudin:

I can finish the phrase later.