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

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 1) in Perrin v. United States

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Leonard B. Boudin:

Mr. Chief Justice and may it please the Court.

My reference when we ended to Judge Gurfein in the Brecht case had in mind his long history as a prosecutor of organized crime in the labor racketeering field and I give some weight as against some of these books that are mentioned by the Government to his statement that organized crime does not usually use commercial bribery as a component and he described that as an establishment crime.

But more important that what a judge —

Warren E. Burger:

Where did Judge Gurfien do that?

Leonard B. Boudin:

In Brecht, sir.

It’s —

Warren E. Burger:

In the Brecht case.

Leonard B. Boudin:

It’s in the Brecht case.

William H. Rehnquist:

Was that an essential element of the offense that we think judicial note of —

Leonard B. Boudin:

That was not, Your Honor.

That — it is not.

But the question is what did Congress intend and the Government says and we deny that organized crime, according to the legislative history, use commercial bribery.

Whereas as we have pointed out, the Government in its brief in — in Nardello and view expressed by — adopted by this Court in footnote 11, page 293 said, “Bribery has traditionally focused upon corrupt activities by public officials.”

Now, if I may turn to the next principle upon which I rely, it is that of the common law definition assumed to be that of Congress.

I touched on it an answer to a question put by Justice Rehnquist and I want to leave that by simply referring this Court through its decisions in Turley and in Morissette, particularly to Mr. Justice Jackson’s comment in Morissette that when Congress borrows terms of art, which are accumulated legal tradition meaning of centuries, it normally intends to adopt those views.

Turning next to the federal complex of statutes and state statutes, I treat them briefly because all they are, are guide posts and the significant aspect, if Congress looked at the state statutes and said, “What is considered bribery,” significant aspects are in contrast in Nardello which again I will touch on more fully, there was a clear line of demarcation between the state statutes dealing with bribery and called bribery, although the name is not critical, it’s the line of demarcation that’s important and the state statutes dealing with commercial bribery of various variations.

And this line of demarcation is followed by the codifiers by those who prepare the American Law Institute people who prepared the penal — model penal codes by the working papers of the Brown Commission.

And indeed, by the very legislation now pending before the Congress, the currently new code — new criminal code in which a distinction is recognized as it is in the textbooks like Perkins and others to which the Government refers between crimes against sovereignty and crimes against property.

I have in our brief delineated the examples of that.

Now, I want (Voice Overlap) — I’m sorry Your Honor.

John Paul Stevens:

Mr. Boudin in — a clear differentiation not within this, the complex of state statutes and which side of the line would a statute prohibiting the bribery of an — professional athlete fall?

Leonard B. Boudin:

I suppose —

John Paul Stevens:

(Voice Overlap) the bribery or — or regular bribery?

Leonard B. Boudin:

It’s very hard.

It says — it says out of sport, if I may use the expression.

It’s a special kind of situation in which you have so many state bribery statutes involving sports.

If I have to categorize them I would say it’s a variety of commercial bribery or perhaps it reflects a special concern of the American legislators and people for that particular aspect which was a national scandal, I think at about 1962 or 1963 after the statute.

So even reflects it —

Warren E. Burger:

It wouldn’t be — be a —

Leonard B. Boudin:

Excuse me, I’m sorry.

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

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Warren E. Burger:

Would it make any difference whether it was a football player on a state supported state university football team or professional team as to whether it was public or private?

Leonard B. Boudin:

I don’t think so.

I think the real question is what the Congress had in mind in passing the statue and Congress did not have in mind.

I may say, despite Senator Keating’s passing observations at the end of congressional hearings with respect to a sports bribery statute.

To me, the critical problem which we face here before the Court is that on which the Government takes issue with us and that is, “What is the meaning of Nardello?”

I already said what the Court said in Nardello with respect to bribery, but why did the Court decide Nardello as it did.

It’ll be very strange if the Court expanded bribery — in this case, if this Court expanded bribery in this case, we’ll you use the term broadly, I don’t want to beg the question, when the broad definition of extortion in Nardello was based upon the Government’s argument in Nardello, that this broad definition of extortion was required because there was a narrow conception of bribery.

Now, taking Nardello on the merits, Nardello was based upon a legislative history in which Attorney General Kennedy said, “Their organized crime used extortion.”

It was based upon the blending by legislation and judicial decision of extortion and blackmail unlike our line of demarcation here.

It was based upon the fact that as the Government pointed out so well in its Nardello brief upon which most of my knowledge comes here that extortion by legislators alone was inconsistent, where the statute directed an extortion by organized crime.

And finally, the Court said, “Obviously, we defer to that, take note I have no problem with it,” that labels of blackmail could not obscure the fact that Nardello was engaged in extorsion of conduct even under state law.

Now, I want to suggest also to the Court as we have in the last pages of our brief that an expansive interpretation of the term “bribery” would — under Rewis and many other decisions of the Court all too sensitive federal state relationships by transforming minor offences into federal felonies and I think that as the Court said in Bass, I think it was Mr. Justice Marshall who wrote the opinion there.

“Unless Congress conveys its purpose clearly,” I’m using the Justice’s words, “then this kind of restructuring could take care of minor crimes, is impermissible and indeed, this restructuring is as rather strange thing because it’s an anachronism even in the federal system.

Thus, for example 29 U.S.C 186 (a) which deals with gratuities to have trade union officials is a misdemeanor and Section 215 of 18 U.S.C. refers to gratuities received by a banking official as a misdemeanor.

This statute would made — would make a telephone call to a banking official or from him where a telephone call by a labor union agent, a felony.

I think therefore that the — you have a problem with respect to the restructuring the — of the federal system as well as the State.

Now, this is in my view, if I may suggest it, exactly the kind of case with which this Court dealt in discussing the principle of lenity.

It is a case where in the words of Bachelder and Culbert, words do not plainly impose meaning.

We don’t know which dictionary definition was chosen even in the Oxford to take the Government’s example.

We don’t know whether the common law should be disregarded.

We don’t know whether the principle of (Inaudible), namely that you can still — penal laws narrowly should be disregarded, it take all of those considerations and it calls here for a principle of lenity which this Court, I think in the Dunn case pointed out has a constitutional basis in Ex Post Facto principles and —

William H. Rehnquist:

Is that raised as a constitutional question in the court’s below?

Leonard B. Boudin:

Yes, the issue of notice was raised in the court below at page 190 to 192, the 192 of the transcript.

William H. Rehnquist:

The constitutional question.

Leonard B. Boudin:

The — the issue of the — yes, the constitutional issue of notice, but I don’t think that it’s really the problem here.

I think the problem here is the construction of a statute.

And the construction of a statute, whether the issue had been raised below or not, call for the principle of lenity, particularly, where you have here a very minor, I think a — a small fish, I’m paraphrasing, was the word used by — by Judge Rubin dissenting in the court below in this case.

I would also urge the Court in considering this problem to note that this is probably the third case in 18 years involving the application to commercial bribery of Section 1252.

At least, we have not been able to find any and of course we know in Brecht — in Brecht, the Court came to different conclusion so we are left here with a Pomponio and this apparent situation.

This is clearly the kind of a case where we cannot say it was said in — in Scarborough, that there is a clear history.

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

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Leonard B. Boudin:

This is the kind of a case in which we — the history is on our side and I think that construction of the word, bearing in mind its long history is on our side.

Now, to conclude at least for the moment, let me suggest to the Court what it is asked by the Government to do.

It is asked by the Government to define a criminal statute which is at best ambiguous, which has been enforced against the defendant twice or group of defendants twice in 18 years.

It has asked to construe it differently from the common law, broadly rather than strictly, although it’s a penal statute, under a definition which among others may be found in popular dictionaries or even learned dictionaries like Oxford under a definition which is contrary to that of all legal dictionary that I’ve seen which when they use the term commercial bribery, use it as a separate heading.

It has asked to construe it contrary to legislative history of which there is very little of whatever is on our side.

It has asked to construe it contrary — contrary to the views expressed to this Court by the Solicitor General of the United States in Nardello and the passage to which I referred Your Honors in the original briefs, and I submit my very high regards to that office.

And I’m sure the courts of course leaves it to conclude that the Solicitor General that not suggest that bribery had a narrow definition, if I can call it narrow, limited to public officials for strategic reasons in Nardello, but it stated its view in Nardello with reason and with thoughtfulness and with a knowledge of legal history.

I’ll reserve my time if I may.

Warren E. Burger:

Very well, Mr. Boudin.

Mr. Shapiro.

Stephen M. Shapiro:

Mr. Chief Justice and may it please the Court.

The Government contends that the Travel Act prohibits the use of interstate facilities to promote all forms of bribery, illegal under state or federal law, including commercial bribery.

In establishing that proposition, we rely on the text of the Travel Act, the contemporary meaning of the words used in the Act and the Act’s legislative history.

In addition, we rely on this Court’s decision in the case of United States against Nardello, which provides the rule of statutory interpretation which we believe is controlling here.

I’d like now to take up each of these points separately.

The literal terms of the Travel Act extend to bribery in violation of the laws of the United States or the State in which the crime is committed.

Unlike other federal criminal statutes such as the official bribery statute, the Travel Act does not limit its coverage to a particular kind of bribery.

Without any limiting modifier, the term bribery has a generic meaning that is the giving or the receipt of something of value in order to corrupt the judgment or the action of someone in the position of trust.

The ordinary meaning of the word bribery includes official corruption but it’s not limited to official corruption as Webster’s Dictionary reminds us.

Counsel has nonetheless contended that the weight of authority in legal dictionaries is different from the weight of authority in the Oxford English Dictionary and in Webster’s Dictionary.

William H. Rehnquist:

But Mr. Shapiro wouldn’t one expect in view of the very specific language in — about the payment of federal excise tax in 1026 that the bribery if it’d be federal bribery here be violation of a specific bribery statute and not just of some generic concept of bribery?

Stephen M. Shapiro:

We think that Congress deliberately selected a general word without reference to a particular kind of bribery because it meant to embrace various federal and various state bribery statutes that didn’t wish to include a long enumeration of those statutes or of state arsenal extortion statutes.

It would be quite lengthy and the cumbersome statute of each one of the specific offenses was enumerated.

William H. Rehnquist:

And what federal bribery statute do you contend was violated here?

Stephen M. Shapiro:

We contend that it was a state bribery statute that was violated through use of interstate facilities giving rise to a violation of the Travel Act.

William H. Rehnquist:

So you need — needn’t worry about actual federal bribery statutes on the books because you need in order to succeed in order to show — to show that the Louisiana Commercial Bribery Statute was violated.

Stephen M. Shapiro:

That’s correct Your Honor.

We — we depend on a violation of the Louisiana statute facilitated through the use of interstate facilities.

Counsel has contended for a common law definition of the word bribery pointing to the legal dictionaries which he contends are different from the popular dictionaries, but Black’s Law Dictionary defines a bribe — bribery as the offering or soliciting of anything of value to influence action as an official or in discharge of legal duty and it gives us examples, common law bribery and commercial bribery.

The same is true in Wharton’s law-lexicon which defines a bribe as a gift to any person, office or holding a position of trust with the object of inducing him to disregard his official duty or betray his trust.

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

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Stephen M. Shapiro:

Again, the examples that are given are official bribery and bribery of agents and employees.

The legal dictionaries use the term the same way Webster’s Dictionary and the Oxford Dictionary uses the word as a generic designation covering both official and non-official bribery.

Instead of designating a particular kind of bribery such as official bribery, the statute refers to bribery offenses prohibited under the laws of Congress or the laws of the States.

Because the scope of the Act is delineated by reference to state or federal bribery law, we believe that it is most significant that a large number of state and several bribery laws passed prior to the enactment of the Travel Act, explicitly extended to non-official bribery.

This — this pattern of statutes confirms that in contemporary legal usage in 1961, the term bribery had a far broader meaning than official bribery.

Prior to enactment of the Travel Act, Congress prescribed non-official bribery in a variety of different criminal laws.

For example, Congress prohibited bribery in the sale of liquor, bribery in the procurement of interstate transportation and bribery of contestants of clearing in television quiz shows.

The situation in the states is similar.

By 1961, 43 states had adopted criminal laws prohibiting various forms of non-official bribery, including bribery of employees and agents, bribery of workers in particular kinds of industries, bribery of labor union officials, and bribe — bribery of athletes participating in sporting events.

Because of this statute’s coverage is defined by reference to state and federal bribery law, the widespread existence of statutes forbidding commercial and other forms of non-official bribery is a strong indication that the Travel Act should have a coextensive reach.

We submit that it would be highly inappropriate to assume that Congress was unaware of the fact that most of the States in the union had enacted criminal laws forbidding non-official corruption and it would be even more extraordinary to assume that Congress was unaware of its own criminal legislation making commercial bribery a crime.

Although the legislative history of the statute is limited, the hearings show that the proponents of the statute understood the contemporary generic meaning of the word bribery.

William H. Rehnquist:

Congress has made its commercial bribery a crime, why do you have to rely on the Louisiana statute here?

Stephen M. Shapiro:

Congress’ commercial bribery statutes refer to particular industries where the problem was felt to be especially acute, for example bribery in interstate transportation and bribery in the sale of liquor.

William H. Rehnquist:

You couldn’t convict under those statutes here then?

Stephen M. Shapiro:

That’s correct, Your Honor.

You need the — the Louisiana statute as a predicate.

Senator Keating who is a proponent of the statute and who participated in its drafting stated specifically that he understood that the Travel Act would apply to bribery in sporting events.

This shows pretty clearly that Congress did not envision the statute as applying only to official bribery.

No contrary views were ever expressed during the hearings and during the hearings on this bill and its companion bills which were heard altogether in a package, several of the — the witnesses as well as the Attorney General stated the view that various forms of non-official corruption were bribery, for example, bribery of labor union officials and bribery — bribery in sporting events.

No congressman or representative from the Department of Justice ever suggested that the Act should be limited to official bribery.

The legislative history also shows that the dominant purpose of the Travel Act was to cut off the flow of profits to organized criminals by depriving them of the use of interstate facilities to carry on their illegal activities.

For this reason, the statute prohibits arson and extortion, both of which are used by criminals to prey on honest business firms and to increase illicit revenues.

Commercial bribery is likewise used by organized crime to increase the flow of money which Congress meant to cut off.

Congressional hearings, both before and after enactment of the statute confirm the extent to which criminals make use of commercial bribery to infiltrate honest business.

Organized crime uses commercial bribery to steal securities from brokerage houses, to pledge them with banks and other lending institutions, to sell worthless or fraudulent stock to institutional investors and to steal valuable cargos through the connivance of bribed workers.

Potter Stewart:

I suppose organized crimes — crime uses various other or offends various other local laws that concededly are not covered by the Travel Act too?

Stephen M. Shapiro:

Well, it’s quite correct, Your Honor.

We contend though the treatment of commercial bribery as a subspecies of the offense of bribery would promote the congressional purpose to cut off the —

Potter Stewart:

This is so an inclusion of a lot of other crimes that are — local crimes that are not — that are concededly not covered by the Travel Act.

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

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Stephen M. Shapiro:

That’s quite true.

If they don’t fall under the heading of the word bribery —

Potter Stewart:

That’s perhaps the question, is it covered or isn’t it covered?

Stephen M. Shapiro:

Well, that — that’s true.

Potter Stewart:

(Voice Overlap) organized crime uses these various things.

Stephen M. Shapiro:

And for the purpose — the reasons that we gave, we think the literal meaning of the word bribery extends generically to different varieties of bribery including commercial bribery.

Harry A. Blackmun:

Mr. Shapiro, counsel indicated that this was a rare prosecution or at least was an early one, do you agree?

Stephen M. Shapiro:

There — there had been relatively few commercial bribery prosecutions under the statute due in part to the difficulty of detecting these offenses, but there have been some.

There have been three reported decisions in the Courts of Appeals involving commercial bribery prosecutions.

There had been two reported decisions in the District Courts and four other cases are referred to unreported opinions at the District Court level.

The department at present has investigations pending into widespread commercial bribery which may in the future result in additional prosecutions.

Thurgood Marshall:

And one of the reasons we have to show interstate commerce.

Stephen M. Shapiro:

That’s correct, that’s correct Your Honor.

Thurgood Marshall:

And that’s the problem too?

Stephen M. Shapiro:

That’s often a problem.

Byron R. White:

Is that a direct Pomponio in this case —

Stephen M. Shapiro:

And Perrin, those are the three Court of Appeal’s decisions on this point.

William H. Rehnquist:

And in each case, I suppose you would have to show all of the substantive elements of the state statute involved?

Stephen M. Shapiro:

You — you would have to prove that interstate commerce was used for the purpose of facilitating an offense under state bribery law.

William H. Rehnquist:

But you would have to all — don’t you also have to prove that the offense under state bribery law was committed?

Stephen M. Shapiro:

You don’t have to show that it was consummated.

The case law is uniform to that effect.

You just have to show that interstate facilities were used to promote that offense and that an overed act occurred after the use of the interstate facilities.

William H. Rehnquist:

Well, what does it mean to promote an offense?

Stephen M. Shapiro:

Well, to — for example in this case, to make — to make easier the payment of bribery proceeds to the bribed employee even if those proceeds were not in fact given to the employee or —

William H. Rehnquist:

Well, what if — what if under the State of Louisiana holdings, the person in question whom you prosecuted had been held by the Supreme Court of Louisiana not to be an employee?

Stephen M. Shapiro:

Well, if — it would be impossible to commit the offense under Louisiana law, then the use of the interstate facilities would not be in aid of a violation of the state statute and there would be no Travel Act violation.

We would emphasize that if petitioner’s proposed interpretation of the statute were accepted, syndicate members based for example in New York City could operate a scheme to bribe the workers in a brokerage house in Chicago or the employees in a bank in Huston or Los Angeles causing serious financial losses and enriching organized crime.

Due to the interstate nature of the offense, local authorities would not be in a position to effectively investigate and prosecute the offenders.

Considering the generic text of the statute and its broad corrective purposes such on a narrow, unnaturally narrow interpretation would be inconsistent, we submit, with the statutory design.

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

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Byron R. White:

Is that — is your strongest legislative history the passage you quoted from Senator Keating?

Stephen M. Shapiro:

That is indeed, Your Honor.

The passage from Senator Keating is the strongest piece of history.

We — we all labor under — under the difficulty here of a — a very limited legislative history.

Byron R. White:

You’re suggesting that — you’re suggesting that that would be an example — the sports would be an example of commercial bribery?

Stephen M. Shapiro:

Of unofficial bribery.

It shows that the interpretation —

Byron R. White:

Unofficial bribery.

Stephen M. Shapiro:

Right.

It shows that the interpretation that’s being advanced by petitioner isn’t the correct interpretation.

Congress did not envision a limitation of the Act to official bribery.

Warren E. Burger:

Didn’t Attorney General Kennedy referred to union corruption as a form of bribery?

Stephen M. Shapiro:

He did indeed, Your Honor, and he also referred to bribery —

Warren E. Burger:

This hearing is on the — on the same legislation or on related legislation?

Stephen M. Shapiro:

Companion bills that were considered in a package and we think that these references by the Attorney General and the other congressmen who participated in the hearings show that these congressmen understood the contemporary generic meaning of the word bribery.

Because Congress prohibited bribery under the Act in general terms without limitation to a particular kind of bribery and because the legislative history supports the generic reading of the statute in our view, the Court of Appeals correctly concluded that this Court’s decision in United States against Nardello provides the applicable rule of statutory interpretation.

In Nardello, this Court held that the word extortion which appears in the same portion of the act, as the word bribery, should be given a generic meaning and should not be limited to acts of extortion, involving public officials.

William H. Rehnquist:

What about the footnote in Nardello that your opponent relies on?

Stephen M. Shapiro:

The Court did indeed point out that bribery has traditionally focused on corruption of public officials, but the Court did not undertake a comprehensive review of the offense.

If it — if it had gone into the details of the development of this offense, it would’ve seen that by 1906, commercial bribery was a criminal offense in Great Britain and that by the turn of the century, Congress had enacted criminal laws forbidding commercial bribery and the States had as well.

I think the Court’s footnote statement is a — is a fair generalization, but it — it doesn’t purport to exhaust the — the subject, its —

Potter Stewart:

How about your brief in that case?

Stephen M. Shapiro:

Our — I don’t think our brief goes any further than that footnote.

I think it simply says that that traditionally —

Potter Stewart:

But we — we have it on file, wouldn’t we?

Stephen M. Shapiro:

Traditionally, that offense is referred to public officials, but as a matter of fact, by 1906, it had gone quite beyond that in Great Britain and shortly after it had gone far beyond that, both at the federal level and in the States.

In Nardello, the Court found no language in the Travel Act or its history which would confine the Act to official misconduct and the Court noted that extortion is generally understood to include threats by private persons and that —

John Paul Stevens:

Mr. Shapiro, may I go back for a moment to the footnote because I just want to be sure I understand the whole thing.

What was the purpose of point — of the Government pointing out in the Nardello brief and in this footnote that bribery was traditionally, narrowly limited to public officials unless it was the Government’s view that bribery was so limited under the statute?

Stephen M. Shapiro:

I — I think that the — the briefs speaks in generalities and that — that it meant only to — to indicate that — at common law that this was the traditional focus of — of the offense of bribery.

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

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Stephen M. Shapiro:

I don’t think that it — it purported to go into a detailed analysis of — of the development of the offense.

John Paul Stevens:

No there wasn’t a — wouldn’t have been a fair reading of the brief to interpret as indicating that Solicitor General thought that the term bribery in the statute was also limited to — to its traditional meaning.

Otherwise, I don’t understand why he would’ve made the argument?

Stephen M. Shapiro:

Well, I — I think that that was the general philosophy of that —

John Paul Stevens:

I see.

Stephen M. Shapiro:

— of that remark, but I — I don’t think it was a remark made in light of the full history of the development of this offense because when that review is undertaken, it’s clear as it possibly can be that bribery applied by 1906 to commercial bribery —

Byron R. White:

But you’re — you’re just saying whatever is — the Solicitor General meant to give that opinion, he was wrong then.

Stephen M. Shapiro:

Well if — if he meant that to be an absolute assertion, it’s historically incorrect.

Byron R. White:

Because your argument was in that case and as I get it from reading the opinion that if you construed the extortion — the extortion statute the way it was urged by the — by the defendant in that case, that it — the — the two statutes would be — one of them would be superfluous —

Stephen M. Shapiro:

Substantially over (Voice Overlap)

Byron R. White:

— into bribery or like extortions —

Stephen M. Shapiro:

That’s correct.

Byron R. White:

— when he said that that you have to construe it, the extortion statute, probably to keep it — to keep that — it from being superfluous to the — the bribe — bribery statute?

Stephen M. Shapiro:

That’s quite correct and I — I think that that was the thrust of —

Byron R. White:

And now you’re just suggesting that argument, looking at it now wouldn’t — isn’t — wasn’t a very good one?

Stephen M. Shapiro:

Well, I — I think that it — as a general proposition, it’s correct, but it’s not correct.

I think it’s fairly described as a dictum in — in both the opinion in the brief and that further research into the development of this offense shows that there is more to the story than — than that brief summary.

In contending for a limitation of the Act to official bribery, petitioner argues of course that at common law, the term bribery was limited to various forms of official corruption and that the Travel Act should be limited to that same scope.

In our view, the Nardello case really isn’t sufficient answer to that assertion.

Nardello declined to adopt the common law definition of the word extortion, concluding that the modern generic interpretation was better suited to serving Congress’ purposes.

In addition, as we’ve discussed in our brief, the common law definition of the word bribery is not a useful standard reference in construing the Act.

The common law definition was subject to continuous change in evolution.

It was a compound offense developing both through statutory enactment and through common law development.

By the 19th Century, it extended not only to judges, which was the original offense, but also extended to various other public officials and certain private persons such as voters.

And by 1906, by statutory enactment —

Potter Stewart:

Well, private person when carrying on — public duties, voters and jurors and people like that.

Stephen M. Shapiro:

That’s quite correct.

And by 1906, Great Britain had concluded that persons in a position of private trust were vested within a — a position of importance to the public and prohibited commercial bribery.

We think it would be highly arbitrary to select the common law prior to 1906 as the standard of reference in construing the statute.

It doesn’t say bribery illegal under common law prior to 1906.

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

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Stephen M. Shapiro:

It says, “Bribery illegal under the laws of Congress and the laws of the 50 states,” which is far different from the common law definition as we’ve previously discussed.

Potter Stewart:

Judge Gurfein in the Brecht opinion said as I remember that at the time of the enactment of this federal law, there were only some 13 states, that’s my recollection, that had — that made the commercial bribery a criminal offense and — and he further added somewhere in his opinion that in some of the States, they don’t even — those offenses don’t even use the word bribery.

Stephen M. Shapiro:

In our appendix to our brief —

Potter Stewart:

Is that represents incorrect?

Stephen M. Shapiro:

That — that’s indeed —

Potter Stewart:

If my memory is correct and be if my memory is correct is his statement.

Stephen M. Shapiro:

His statement is — is incorrect, but your memory is quite correct.

In 1961, 13 States had general statutes making commercial bribery a criminal offense.

An additional 12 States had narrower statutes focusing on particular persons in particular lines of industry.

These were more specific commercial bribery laws.

Thirty two states had criminal laws forbidding bribery in sporting events which is quite a departure from the common law.

There was no common law offense of — of bribery of athletes.

Additional States had statutes making it a criminal offense to bribe persons such as architects or labor union officials.

In all, by 1961, 43 States have statutes prohibiting non-official bribery, going beyond the common law definition.

Great Britain had the statute prohibiting commercial bribery.

Congress had several of them.

At present, 49 states have statutes forbidding non-official bribery, going beyond the common law definition.

Potter Stewart:

How about the — Judge Gurfein’s point that at least some of the state general statutes in prohibiting this sort of non-common law activity didn’t even use the word bribery.

Stephen M. Shapiro:

Well —

Potter Stewart:

Is that correct?

Stephen M. Shapiro:

That is correct.

Some of the states do not use the synonym such as corruption.

Potter Stewart:

Well, my query is it a synonym?

Stephen M. Shapiro:

In our appendix, we — we only cite state statutes that use the word bribery.

We — we base our argument on statutes to do that but there — we believe that if the state law prohibits the payment or the receipt of money to affect the judgment of someone in a position of trust.

It falls within the generic definition of the word bribery, just the way the blackmail fell within the generic definition of the word extortion in Nardello.

It was embraced within the generic definition and we think on similar principles, those laws would be included as well, although it didn’t decide — we didn’t cite them.

We constructed that chart in a conservative way.

William H. Rehnquist:

You’re not suggesting that the meaning of the Travel Act expands after it was passed because more and more States passed commercial bribery statutes.

Stephen M. Shapiro:

We do indeed.

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

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Stephen M. Shapiro:

If a — if a State such as Idaho which now has no — it’s only State that now has no commercial bribery legislation, if it — if it adopted a statute making it legal to bribe a doctor, that would be bribery in violation of state law and it would be embraced under the Travel Act.

William H. Rehnquist:

Yes, but would it be the generic bribe — you need two elements under the Travel Act.

You need a bribery generically and you need a violation of the state statute.

Stephen M. Shapiro:

Correct.

William H. Rehnquist:

Would you say that Idaho Statute enlarged the generic meaning of the word bribery?

Stephen M. Shapiro:

Oh, no Your Honor, we don’t.

We — we only would contend that this would be another subspecies within the generic definition of bribery that would fall under the ban of the statute because the State had enacted it.

Bribery of architects or bribery of lawyers or examples of new kinds of bribery that the States could forbid but which would fall within the generic definition of the word bribery used by Congress.

Congress meant to leave the definition open ended.

It referred to bribery generally and left the definition or the particularization to the state statutes, but your — your initial point was quite correct that you — you need a two step analysis.

Is it within the generic definition of bribery, one and two, is it forbidden by a state law?

William H. Rehnquist:

Is that a common facet of a criminal statute to leave the definition open ended?

Stephen M. Shapiro:

It’s — we think it’s a necessity in this kind of a situation where otherwise it would be impossible to list all of the variance of state law, arson for example or state law extortion using different words.

This is how the Court construed the Act in Nardello in the manner that I —

John Paul Stevens:

You don’t really mean it’s open ended.

You just mean it’s a broad category that’s not coextensive with any group — any state statute.

But, don’t you — don’t you accept the proposition and whatever the contours of the — of the federal — of the concept of bribery in the Travel Act they remain constant?

Stephen M. Shapiro:

Yes, I do.

I certainly do.

Warren E. Burger:

The meaning doesn’t change.

It just means that as consequences, a new area is embraced under the statute.

Stephen M. Shapiro:

That’s quite correct.

I — I only meant to say what the Court said in Nardello that the word has a generic meaning.

I — the word open ended is less Solicitor’s description, generic is the proper term.

Potter Stewart:

And if in 1985, the State of Idaho, enacts a law, making it a criminal offense to pay money to — in the commercial transaction to get a benefit that you wouldn’t otherwise get without mentioning the word bribery, then somebody who travels into Idaho and violates that statute is guilty of the violation of the Travel Act, is that right?

Stephen M. Shapiro:

That’s quite correct.

We think that’s the necessary meaning of the Nardello Case.

John Paul Stevens:

That’s the same I suppose that to the first time a State — State adopted a statute making it a crime to bribe a judge.

They never had a judge-bribing statute before they could adopt one in 1999 and they then come within the Travel Act.

Stephen M. Shapiro:

Absolutely, it’s a very same issue.

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

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Stephen M. Shapiro:

Petitioners also argued that the Travel Act cannot be applied here because extension of the act of commercial bribery without a proven association with organized crime would result in the prosecution of insignificant local offenses and would extend federal jurisdiction over state crimes.

We note in response that the present case is far from an insignificant one, involving as it does, a well organized criminal venture, intended to exploit stolen geological data, showing the location of oil deposits.

And as a general matter, there is no reason to assume that commercial bribery is likely to involve an insignificant offense.

Both official and commercial bribery have the clear potential to injure the public.

In addition to enriching criminals and inflicting private losses, commercial bribery has the potential to cut off honest competition and to cause the distribution of inferior products to the consuming public.

Prosecution of commercial bribery under the Travel Act like prosecution of official bribery would naturally involve an exercise of authority over persons who violate state law, but the Act was clearly intended to have just that effect.

It explicitly applies to bribery illegal under federal or state law.

As this Court has repeatedly pointed out, the very purpose of the Act was to aid local law enforcement officials by punishing persons who use interstate facilities to carry on the designated illegal activities.

And there is nothing improper, we submit, about applying substantial penalties to violations of the Act when it’s triggered by state law offenses.

Congress believed that interstate schemes to carry on bribery in violation of either federal or state law posed a serious national threat.

And where the facilities of interstate commerce are used, it is for Congress to select the means necessary to punish and deter the offenders.

Petitioner’s final contention of course is that its conviction must be reversed under the rule of lenity.

He argues in this connection that the statute is vague and that it must therefore be narrowly construed in his favor, but the Travel Act does not present a vagueness problem.

The statute’s literal realm extends to bribery without limitation on its kind.

The literal dictionary meaning of the word bribery is generic.

When the Act was passed, the word bribery had been applied repeatedly to commercial corruption in a wide variety of different federal and state criminal laws.

The legislative history of the Act, although it’s sparse, shows that its proponents viewed the term bribery in a contemporary generic sense and the dominant statutory purpose that is cutting off the flow of money to organized crime strongly supports the view that commercial bribery should be covered.

This is not a case in which the defendant has a plausible claim that he could not have known that his conduct was subject to criminal sanctions.

He was well aware that his actions were wrongful as the evidence at trial showed.

He had clear notice that his conduct was in violation of the Louisiana Criminal Statute which triggered application of the Travel Act.

Potter Stewart:

Has the — have any charges ever been made against this defendant under the Louisiana law?

Stephen M. Shapiro:

They have not Your Honor.

He was of course also on notice from this Court’s Nardello decision that the terms of the Act would receive a generic interpretation and would not be restricted to common law meanings.

William H. Rehnquist:

But in this prosecution, you wouldn’t have to have shown a complete violation of the Louisiana statute, would you?

Stephen M. Shapiro:

That’s quite true Your Honor, but he was on notice that the course he was embarked on would lead to criminal penalties.

That’s — that’s our only point, that this isn’t an innocent individual who believed that the actions that he was undertaking were lawful.

The only Court of Appeals to have ruled on the precise question presented here had concluded before petitioner became and a scheme to — became involved in the scheme to commit bribery, that the Travel Act did in fact extend to commercial bribery.

That’s the unanimous decision in United States against Pomponio.

This is not then a case in which the defendant was required to speculate about the illegality of his actions.

As this Court noted in the case of SEC against CM Joiner, the rule of strict construction is not violated by permitting the words of the statute to have their full meaning, or the more extended of two meanings, as the broader popular, instead of the more narrow technical one.

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

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Potter Stewart:

Of course we — that’s exactly the approach that was rejected in the Rewis Case, isn’t it?

Stephen M. Shapiro:

Well, in Rewis Your Honor —

Potter Stewart:

The broad literal meaning of the statute would have led to the affirmance of the conviction in — convictions in Rewis.

Stephen M. Shapiro:

Rewis is quite different.

In that case, there was no proof that the defendants had used interstate facilities to carry on the illegal scheme and where the Government proves that interstate facilities are used, that’s an entirely different question.

Where interstate facilities are used there is —

Potter Stewart:

I know the questions are different though.

We’re talking now about the approach to which the Court should come to the statute.

Stephen M. Shapiro:

Well, I think the — the approach that the Court used there was predicated on the absence of interstate commerce.

When there is no interstate commerce then the federal interest is no longer significant.

The local interest is paramount.

Potter Stewart:

(Voice Overlap) case from Georgia to Florida as I remember, were concededly —

Stephen M. Shapiro:

Well, the defendants stayed in Florida.

Potter Stewart:

— were the patrons of the gambling (Voice Overlap) —

Stephen M. Shapiro:

An occasional patron went across the state line, but the defendants did not use the facilities of interstate commerce to promote the offense.

That’s the essential difference in the cases.

As this Court also pointed out in the Scarborough case, the rule’s strict construction is not required where unless after seizing everything from which aid can be derived, the statute remains ambiguous.

Here, we think when the usual rules of statutory interpretation are used, there is no ambiguity and we accordingly, respectfully request that the decision of the court below be affirmed.

Thank you.

Warren E. Burger:

Mr. Boudin.

Leonard B. Boudin:

May I Your Honor?

I should like to read to the Court the Government’s language in its brief in Nardello at page 9.

“Furthermore,” said the Government, “joined in the same clause with extortion, is an offense which has its normal focus, the corruption of public officers interstate travel to promote ‘bribery'” is also forbidden.

In this context, reading extortion as confined only to acceptance of unauthorized fees by public officials would render the extortion branch — sorry, would render — would render the extortion branch of the clause practically superfluous.

The Government there took the firm position that where corruption is involved, it had to have, at least it would persuade the Court to take a broad definition of extortion because as it said, the corruption of public officials was being handled by the bribery provision.

This not a quote —

John Paul Stevens:

I believe as you read that, that’s consistent with the bribery definition being either broad or narrow (Inaudible)

Leonard B. Boudin:

I accept the — it may be consistent except in one respect.

The — the logic of the Government’s argument may be failing, but the Government was very clear in stating there that bribery meant public officials —

John Paul Stevens:

Included public officials.

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

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Leonard B. Boudin:

Yes.

John Paul Stevens:

But their argument only required it to include not to be limited too.

Leonard B. Boudin:

No.

John Paul Stevens:

And — and they’re — they’re objecting to the claim that the extortion is limited to public officials.

Leonard B. Boudin:

I think that’s —

John Paul Stevens:

If that’s the case it’s — it’s overlap.

Leonard B. Boudin:

Perhaps I read it too quickly.

The Government said —

John Paul Stevens:

I think you can read it, yes.

Leonard B. Boudin:

— in its brief “the normal focus, the normal focus.”

Now you can play around with that phrase and say now, “It only meant that it was the central issue or that it was 90% of the time true.”

Thurgood Marshall:

You can also play around with the fact that the present Solicitor General does not take that position.

Leonard B. Boudin:

Yes, of course that’s perfectly valid and of course, the Court in Nardello with its footnote seemed to accept that decision.

Now, if this is a question that we’re now construing not only the meaning of the term bribery but we’re now construing what the Government’s concession meant, just simply adds another element to the indefiniteness of what we are treating.

The Government, and of course I have reference with all due respect to then Deputy Attorney General’s tying in of the term bribery to the term official bribery or limiting it to that and the same thing was true of the Attorney General Kennedy.

Your Honors will recall what Government counsel just said, when he was asked about what’s the major legislative support that he has for believing that bribery, means commercial bribery — means that commercial bribery and his answer was, “Senator Keating’s observations un-supports bribery.”

You look at, if I may suggest it, the hearings in the case and you’ll see how this somewhat personalized statement by a single legislator that nobody caught on to, that was passed over, and this is considered the largest legislative support.

I suggest if we want to see other support for my position that we look at 18 U.S.C. 1961. 1961 is a statute which talks about bribery, in one case, refers to Section 201 as relating to bribery and then talks about Section 224, not as relating to bribery, but as relating sports bribery.

At best, we have an ambiguity here as to the meaning of the term.

The Government has referred, Your Honor, also to references to labor corruption.

I touched down in a moment before.

Your Honors will see at pages 31, 246 and 272 of the House hearings, I haven’t put that on a brief but perhaps I can, shortly in a letter, if Your Honor permits, the Government was talking about the Immunity Act.

There was not a word — a proposed marriot, there is not a word in dealing with this statute about labor corruption.

The Government pulls out now what the Congress must’ve known about a statute passed in 1906 in Great Britain.

Again, if this is how we are to interpret legislation, then I suggest it gives an air of ambiguity to the statute.

On the dictionaries, I have addressed myself to that.

I would urge Your Honors to look at those dictionaries and see whether those dictionaries are not consistently, in my favor, if they are illegal dictionaries.

But quite aside from that, all they do really is indicate that there is ambiguity in the meaning of the word bribery.

And the question is whether in this case, unlike many others, appeal statute, whether or not the statute is to be construed broadly or narrowly.

A reference has been made to the open-ended aspect of the statute, as read by the Government, and it’s been suggested that there are ways out for it, but if you take my construction of the statute, which I think is Congress’ and then only Congress’ view and not what a state law says and not what one dictionary or another says, it is Congress’ view, mine gives a non open-ended situation because public bribery, governmental bribery has a precise meaning.

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

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Leonard B. Boudin:

Under the Government’s definition, the moment a state passes a statute like Wisconsin, for example, providing for a $25 fine for gratuity, because a gratuity paid to a chauffeur, we then have a real open-ended situation.

Did Congress intend to make the $25 gratuity to a chauffeur or a $100 to a lumberman in some other State?

Did it intend to include that in the term bribery?

There is no suggestion in the legislative history that it did but if one looks at it, if we can stand aside and say, “What could Congress had meant in passing the statute directly to organized crime where they had no evidence that organized crime was using commercial bribery?”

It had a concrete function and purpose, which a National legislator — Legislature would have.

There is a very serious crime in the bribery of public officials, the one referred to by Deputy Attorney General White and by Attorney General Kennedy.

Bribery of public officials is a critical matter, deserves a national attention and is the most reasonable application of the Travel Act.

But to say now that because bribery could be interpreted by some definitions to be broad, when commercial bribery has a line of demarcation, I’ve indicated before, is also to disregard what a reasonable Congress would have intended in addressing itself to this problem.

Thank you, Your Honor.