United States v. Sun-Diamond Growers of California – Oral Argument – March 02, 1999

Media for United States v. Sun-Diamond Growers of California

Audio Transcription for Opinion Announcement – April 27, 1999 in United States v. Sun-Diamond Growers of California

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William H. Rehnquist:

We’ll hear argument first this morning in No. 98-131, United States v. Sun-Diamond Growers of California.

Mr. Ray.

Robert W. Ray:

Mr. Chief Justice, and may it please the Court:

Respondent, Sun-Diamond Growers, was extensively regulated by the United States Department of Agriculture.

In the first 14 months of Secretary of Agriculture Mike Espy’s tenure, Sun-Diamond lavished on its chief regulator thousands of dollars in gifts, while it had millions of dollars at stake in USDA programs.

The jury convicted Respondent of giving unlawful gratuities under Section 201(c) by finding that Sun-Diamond gave the gratuities for or because of the Secretary’s official position.

Under the plain language of the statute, an official act… Section 201(a)(3)… means any decision or action on any matter which may be pending before the public official in his official capacity.

Here, the statute reaches $6,000 in gifts given by a regulated entity for or because of the official’s position, his capacity to act, on matters pending or on matters which could be brought before USDA.

The district court–

Sandra Day O’Connor:

Well, counsel, I thought that the section we’re looking at, (c)(1)(a), says that it covers the situation where the defendant directly or indirectly gives anything of value to a public official for or because of any official act performed or to be performed by that official.

Robert W. Ray:

–Justice O’Connor–

Sandra Day O’Connor:

There is a link there between an act performed or to be performed.

It isn’t baking brownies for the Senator or knitting a pair of socks for some public official, is it?

Robert W. Ray:

–Justice O’Connor, you are correct.

The element is for or because of an official act.

That element was provided by the district judge to the jury in this case.

The issue, however, is whether or not the district judge’s explanation of what would be sufficient proof of the requisite motivation was satisfied by a jury finding that the motivation behind the gift was for or because of the official’s position.

In this case, involving a regulated entity, our position is that the position of the official is coextensive with his capacity to act on any number of acts coming before him.

Sandra Day O’Connor:

Well, but that’s quite different from linking it to an act performed or to be performed.

And you want to say that anything given because the official is an official is enough.

Robert W. Ray:

Only, Your Honor… and that was why we answered the question presented by the Court in… in a qualified way: only when it is the official’s position, understood as the capacity to act, do we believe that there is an equivalence, that they are coextensive with one another.

David H. Souter:

But isn’t… isn’t the difficulty, or one of the difficulties, for your position, at least with respect to these instructions, that the judge, in giving the instructions, went so far as to say that there… literally, there need be no link with any act at all?

And at that point, even assuming there’s some… there’s some merit to your argument, it seems to me, at that point, the judge just totally untethered the… the… if you will, the position from the… from the capacity to act or the anticipation of action.

And… and even if we were to accept your position, we… wouldn’t we have to find error in… in that instruction?

Robert W. Ray:

No, Justice Souter, for the following reason.

The link that Your Honor is referring to is a link that came during the portion of the instruction where the judge was making clear to the jury that this was not a bribery offense.

The link being–

David H. Souter:

Well, he sure did that.

[Laughter]

But, I mean, he went a lot further than that, didn’t he?

David H. Souter:

I mean, the bribery… the bribery offense, as… as we’ve described it, requires a… a fairly specific quid pro quo kind of link, specific act, specific gift.

This went far beyond anything that would be appropriate to distinguish this from the bribery statute.

Robert W. Ray:

–Your Honor, but it was in the portion of the charge where the judge was trying to explain to the jury that no such link was required.

That is, that the jury did not have to find that there was a particular official act or a matter in mind at the time of the gift.

David H. Souter:

But that isn’t what he said.

He said it doesn’t have to be linked to any act.

Robert W. Ray:

Your Honor, our… our position–

David H. Souter:

Which… which seems to go much further.

Robert W. Ray:

–Our position is that if it is the prospect of official conduct that motivates the gift, it’s enough to find that to satisfy this offense.

To hold otherwise… that is, to distinguish between gifts given for official acts in general–

Stephen G. Breyer:

Well, I know that’s your position, but why does it make sense?

That is to say, why should we read a criminal statute to suddenly make a group of old-age home residents decide to… to send a little present because they think the Senator has been generally in favor of old-age homes?

Or… I mean, why should you have such an expansive reading of a criminal statute when there are a large number of ethics rules and other noncriminal matters that adequately, at least arguably, control conduct like this when it is unethical?

Why should we give prosecutors such broad discretion to prosecute people who may have done things that are not even immoral?

That… that’s the general kind of question that I’d like you to address.

Robert W. Ray:

–Let me answer the “why” question first.

The “why” question is that it shouldn’t be any less offensive to integrity in government that gratuities were given with a particular matter in mind, a whole multitude of matters in mind, or no specific or any official act in mind at the time of the gift, as long as there is sufficient proof of motivation of the prospect of official action; in other words, the prospect of official conduct.

To answer your hypothetical, in that hypothetical circumstance, it is our position that our logic… the logic to the “for or because of” official position argument would be sufficient to encompass your hypothetical if the motivation behind that gift was the senior citizen offering a gift to a public official, in… in that circumstance, because of the official’s position or, indeed, because of official action… action with respect to legislation that was of interest to that senior citizen.

Antonin Scalia:

Mr…. Mr. Ray, my… my… my problem is just the opposite of… of Justice Breyer’s.

I… I don’t find it at all amazing that Congress should seek to write a statute of the sort that you say this is.

And the reason I don’t find it amazing is that they already have, but in a different section of the United States Code.

And the problem is that we normally interpret a statute in such fashion as not to duplicate something else that is already on the books.

How does this statute, as you interpret it, differ from 5 U.S.C., Section 7353, which prohibits Federal employees from accepting anything of value from persons, quote, whose interests may be substantially affected by the performance or nonperformance of the individual’s official duties?

That sounds like your… your very argument.

Robert W. Ray:

It is not, Justice Scalia.

Because that–

Antonin Scalia:

What’s the difference between those two, then?

Robert W. Ray:

–The difference under 7353 (a) is that the statute is simply asking there, as a fact, whether or not those interests were ones before the public official.

It is not asking what the motivation was behind the gift.

Our… our position absolutely depends–

Antonin Scalia:

Well, this one is included within the other one, you mean?

The other one requires even less.

Robert W. Ray:

–No, Your Honor.

The Federal gratuities statute requires proof of intent, criminal intent, a motivation, the motivation for or because of official position or for or because of official acts, the prospect of official conduct.

7353 (a), first of all, only applies–

Antonin Scalia:

To the employee.

Robert W. Ray:

–to the employee.

So, it does not… it would not encompass Sun-Diamond’s conduct in this case, clearly.

But, even apart from that, it doesn’t require any proof of intent.

It simply says: If you shall solicit or accept anything of value from a person–

I see.

Robert W. Ray:

–whose interests may be substantially affected.

That is what is encompassed by that provision.

Antonin Scalia:

Well, but it still duplicates the other.

I mean, the one is a lesser included of the other, it seems to me.

The one statute says, if you accept it from someone who can be affected by your decisions, knowing that he is giving it to you because you… he… he is affected by your decisions, you’re guilty.

That’s your… that’s your statute.

This statute says, if you accept it from somebody who may be substantially affected by your… your decisions, even if he doesn’t know that he may be substantially affected by your decisions, you’re guilty.

Robert W. Ray:

Your Honor–

Antonin Scalia:

It doesn’t make sense to have two statutes overlapping like that.

Robert W. Ray:

–Your Honor, we believe it does make some sense.

First of all, there is, necessarily, some overlap from what 7353 invites, which is the passage of regulations that deal in an administrative matter with conduct of Federal employees.

And clearly there may be circumstances where the conduct of a Federal employee would violate a regulation, leading to dismissal or other sanction, and also… might also, on the same conduct, include criminal prosecution.

Antonin Scalia:

This is not a regulation.

I… I can understand how a regulation may go further than a statute, and render any violation of the regulation automatically a violation of the statute.

But this is another statute.

And it… it… since there is another way to read the statute that… that you’re prosecuting under here, I’m… I’m inclined to read it in such fashion that it will do something different, insofar as the employee is concerned, than 7353 does.

Robert W. Ray:

Your Honor, this statute, 5 U.S.C., 7353, first of all, does not do anything other than authorize the enactment or passage of Federal regulations to deal with its… its general conduct.

But, again, to return to the answer to your question, why this is different than Section 201, it is significantly different because there is no criminal intent; there is no knowledge requirement in this proscription, 7353.

Which is… we believe, is the substantial difference between what Congress had in mind in 1962, when it passed 18 U.S.C., Section 201(c), which covers the situation of a gratuities offense.

William H. Rehnquist:

Well, the other statute doesn’t purport to deal with donors, does it?

Robert W. Ray:

It does not, Your Honor.

It is limited by its express terms to gifts to Federal employees, covering only Federal employees.

Anthony M. Kennedy:

But… but the point still remains, if there’s more than one plausible reading of… of the statute, why should we adopt that reading that creates such a large gap between the law and everyday practice?

Robert W. Ray:

Your Honor, Justice Kennedy, we… we–

Anthony M. Kennedy:

I mean, the cookie hypothetical and… and any number of such ones.

Unless we’re just going to rely on prosecutorial–

Robert W. Ray:

–Your Honor, the only safe harbor that is apparent with respect to prosecution under the Federal gratuity statute, under our theory, again, is this question of whether or not there’s a gift given to a public official solely because of that public official’s status, completely untethered from official acts.

In other words, the Department of Justice’s hypothetical, which deals with the… the general question of a status gift, unconnected to the capacity for official action.

Stephen G. Breyer:

–But that’s exactly the problem.

Robert W. Ray:

That’s different–

Stephen G. Breyer:

That’s… I mean, my position was, when I asked you the question, was the same, I think, as Justice Scalia’s: 5 U.S.C., 7353 is not a criminal statute, is it?

Robert W. Ray:

–Correct, Your Honor.

Stephen G. Breyer:

All right.

So, this kind of area, I gathered from what you prosecute, sometimes every public official is sometimes invited to go on a trip, to speak to people.

They… they might give him dinner.

They… they might… and evidently, some of those things are sometimes actually prosecuted.

Well, why not, given the difficulties in this area, assume that Congress intended this general kind of present-giving; i.e., we invite you on a trip to speak to a trade association, or give… that kind of thing should be handled by civil regulations rather than somebody bringing the blunderbuss of the criminal law in… into the prosecutor’s arsenal, where they could prosecute trivial things?

Robert W. Ray:

Justice Breyer, but that’s not what Congress intended.

And it became apparent in 1989, with the passage of 5 U.S.C., 7353.

At the time the Congress passed this statute, it recognized the Department of Justice’s broad sweep in interpretation to the 201 gratuity statute, consistent with the intent of Congress, going back to the beginning, which was when it was passed in 1962.

It recognized that there was in fact overlap between the scheme that it was going to further, post-1989, in connection with Federal regulations that would be applicable to all Federal employees.

It recognized, further, that the intent, sufficient to satisfy a 201 (c) offense, was motivated for or because of an official’s position.

That was the sweep–

Ruth Bader Ginsburg:

But the Congress didn’t say position; and that’s the problem.

You were about to give us a safe harbor, but the charge to the jury was that the gratuity statute makes it a crime to give a public official a thing of value because of his official position, now, whether or not the giver or receiver intended that particular official’s acts to be influenced.

So, that seems to say it’s because of the official position, whether or not there was any intent that… that the… that the official’s acts… the official’s acts, very broadly… not particular acts, but the particular official’s acts, be influenced.

First, I had a question of how this charge came to be.

Was this a result of a request to charge by the prosecution?

Robert W. Ray:

–Justice Ginsburg, it was.

Robert W. Ray:

But it… it included, as part of that charge, both requests by the government, as well as requests by the defendant.

Ruth Bader Ginsburg:

But this particular charge was proposed by–

Robert W. Ray:

Correct, Your Honor, the part that you just read, yes.

William H. Rehnquist:

–Was–

–By whom?

Robert W. Ray:

By the government.

And with respect to that portion of the charge, the reason the government included it, Your Honor, is because intent to influence is not an element of a bribery… of a gratuity offense.

It is, by contrast, an element of a bribery offense, which is Section 201 (b).

We believe the–

Ruth Bader Ginsburg:

But you made it… you could have done the same thing using the words of the Act instead of you inserting the word “position”.

Robert W. Ray:

–That’s correct, we could have done that.

And the district court certainly could have instructed in that fashion.

We’re… we’re here simply to say, Your Honor, that a… an additional requirement which, if you instruct in a fashion such as official acts, begs the question about whether or not you’re requiring, for example, a specific official act to be shown.

We believe no such requirement exists in the Federal gratuities statute.

William H. Rehnquist:

But… but it may be that no specific act is required, but it still would… the language would suggest that perhaps a somewhat more amorphous future possible acts on the part of the official.

Robert W. Ray:

You are correct, Mr. Chief Justice.

That’s right.

And it could have been… we… the government could have talked in terms, and the district judge could have talked in terms of acts rather than position.

William H. Rehnquist:

But there is a difference, don’t you think?

I mean, one could give a gratuity to somebody because he just likes… you know, who had no connection with ag… agriculture at all, just because he likes to sit next to the Secretary at a football game or something like that.

And I don’t think that would come within the language of the statute.

And yet that’s given to him because of his official position.

Robert W. Ray:

You are correct, Your Honor, it is not within the language of the statute.

It is not our position or the Department of Justice’s position that that would be included under our theory of the case under

“for or because of official position. “

That, however, was not presented by the facts of this case.

And it was not left to the jury to simply speculate about what type of official action they were to be concerned about.

In this case, the judge further instructed the jury that the jury had to find official acts… the portion of the charge which is in the appendix, at page 88, said: With respect to official acts… I’m reading from the second full paragraph… the government has to prove that Sun-Diamond Growers gave knowingly and willingly Secretary Espy things of value while it had issues before the United States Department of Agriculture.

I mean, our position is that, ultimately, what the gratuity statute is about is the prospect of official action… in Justice Ginsburg’s hypothetical… ultimately, the prospect of… of intending to have some influence on official action.

The issue in this case is what is the element of the offense that Congress required?

Ruth Bader Ginsburg:

Well, but I think you’ve–

–But it’s at least… at least confusing if… if the jury… you’ve just isolated this sentence: thing of value, because of official position, whether or not there was an intent to influence acts.

If you just took that out and… I mean, it… it just says: official position.

Robert W. Ray:

And our difficulty with that, Your Honor, to answer your question, is that the element of the offense, intent to influence, is a bribery concept.

Much of what a district judge does… and this has been proven by experience since this… this statute has been enacted in 1962… is a… a large effort to make sure that the jury understands the difference between a bribery offense and a gratuities offense.

A bribery offense has essentially three important components different than a gratuity offense.

One of them is an… an intent to influence.

Another is a corrupt intent.

The third is a quid pro quo or an agreement.

David H. Souter:

Well, may I ask you about your… the distinction that you are drawing on 201, will vary greatly depending on whether we use the word “acts” as our focus or “position” as our focus.

What I’m getting at is the… the phrase… what is it… for… for or because of… if we say that a… a gift violates the statute if it’s given for or because of the position, then I think it follows quite readily from what… as you have been saying… that the notion of intent to influence is outside the statute; it’s not the focus of the statute.

Robert W. Ray:

Yes, Your Honor.

David H. Souter:

But if… if we… if we go back to the original language, and we speak of for or because of acts, then it becomes quite implausible, in… in a way, I… I suppose, suggested by Judge Wald’s remark, to think of a gift that might plausibly be given for or because of acts which wasn’t intended to influence the way those acts were performed.

Would you comment on that?

So, I guess my point is, if we… if we accept the equation of position and acts, then the notion of intending to influence really does seem to drop out.

But if we stick to the text, and we say

“for or because of acts, then the notion of intending to influence, it seems to me, is rather hard to get out of the statute. “

Robert W. Ray:

We believe Judge Wald correctly recognized the point, that inherent in a gift given in a regulated context is ultimately the prospect of official action.

And to talk… to start to talk about intent to influence as an… as a required element of the offense we believe leads the jury astray.

David H. Souter:

Well, would you… would you… would you request… would it be appropriate for a judge to say, in charging under this statute, whether or not there was any, even general intent, on the part of the donor to influence the official in the manner in which the official performed his acts is totally irrelevant; would that be a correct instruction?

Robert W. Ray:

I would think that would be as misleading as… as instructing with intent to influence.

We have to be careful about, obviously, how to instruct a jury.

David H. Souter:

Well, let’s just talk as lawyers now for a minute.

As a technical statement of law, would that instruction have been right or wrong on your view?

Robert W. Ray:

With respect to a… sort of a generalized intent?

David H. Souter:

That’s… that’s right.

Robert W. Ray:

I think wherever you talk about… and a generalized intent to influence seems to me to be no different than saying you’re going to require some sort of a specific intent to influence.

David H. Souter:

Was… was the instruction right or wrong?

Robert W. Ray:

We believe the… the instruction, read as a whole, in its entirety–

David H. Souter:

No, I’m… I’m talking about my hypothetical instruction.

Robert W. Ray:

–Oh, your hypothetical.

David H. Souter:

Would that have been right or wrong?

Robert W. Ray:

In isolation, I mean, I… I think, in isolation, it’s not wrong.

We think it would require some further explanation to be clear about what is meant.

I mean, certainly you can envision other ways to explain this to a jury.

Antonin Scalia:

It doesn’t seem to me that… that the choice is… is between reading this statute as… as one that… that requires an intent to influence and reading it as one that requires merely giving a gift because of a person’s office.

It seems to me this statute covers a situation in which you reward someone for an act already performed.

Robert W. Ray:

That’s half of it, Your Honor.

Antonin Scalia:

Well, I think that’s… that’s a part of it that doesn’t trouble me, but it’s a good deal short of saying that any gift because of a person’s office comes within the statute.

I mean, let’s assume that the… the person has… has come out with a ruling that… that greatly favors a particular company.

And then the… then the company gives him $10,000.

Now, you couldn’t get that under the bribery statute because the decision was already made.

Robert W. Ray:

That’s correct, Justice Scalia.

And that would–

Antonin Scalia:

But you could get it under this statute, right?

Robert W. Ray:

–That’s correct.

And the… and the reason–

Antonin Scalia:

Well, why isn’t that enough?

Why do we have to go further, and say, whenever you give a gift to a… to a public official, you’re covered?

Robert W. Ray:

–That’s only half of the statute.

The statute also deals with prospective activity, to be performed.

Your hypothetical deals simply with the first half, which is what has already been performed, the reward for past official action.

And–

Anthony M. Kennedy:

Well, suppose… suppose the… the official has announced that he will perform an act, and then… but he hasn’t performed it yet… he then gets the gratuity or the reward Justice Scalia describes.

Robert W. Ray:

–Justice Kennedy, that’s three–

Anthony M. Kennedy:

I… I think… I think that would be covered by the statute.

And that also explains the “to be performed” language.

Robert W. Ray:

–It does, Your Honor.

And our position is that’s three-quarters of the way there.

William H. Rehnquist:

But if… if he has under… if the official has under advisement a proposed regulation, I think the… your view is it would be covered–

Robert W. Ray:

Yes.

William H. Rehnquist:

–because it’s an act to be performed.

Robert W. Ray:

That’s correct.

And that would get us even further the way there, but not all of the way there.

William H. Rehnquist:

Well, where are we lacking?

Robert W. Ray:

Where we’re lacking–

We’ll get there eventually.

[Laughter]

Mr. Chief Justice, where we’re lacking is, again, the prospect of future conduct, where it is not speculative, but there’s a likelihood that it will be there.

Clearly presented by the facts of this case, absolutely no question, in a regulated context, where Sun-Diamond is a large agricultural cooperate… cooperative, regulated on a day-to-day basis by the Secretary of Agriculture, in a situation where the jury is also required to find that there were matters pending before the Department of Agriculture of interest to Sun-Diamond, that it is sufficient, under the statute, to embrace and encompass within its scope the prospect of official actions by that official.

Sandra Day O’Connor:

Well, Mr. Ray, it could well be that the evidence in this case could support a conviction by a properly instructed jury.

And I think the question is whether the jury is properly instructed here.

Let me ask you this.

The… you have filed this petition on behalf of the independent counsel.

Robert W. Ray:

That’s correct, Your Honor.

Sandra Day O’Connor:

And the Solicitor General has filed a separate brief on behalf, I guess, of the Department of Justice.

Robert W. Ray:

Yes.

Sandra Day O’Connor:

How does the Solicitor General’s position differ from yours, would you say?

Robert W. Ray:

We believe that the positions are the same.

Both deal with the question of whether or not

“for or because of official position. “

is sufficient to satisfy the statute.

The Department of Justice explains that that’s an appropriate shorthand, a shorthand used by the Fifth Circuit in Evans and Bustamante and by the Third Circuit in Standefer for a showing for or because of official acts so long as official position is understood to mean the prospect of official action, the capacity to act, consistent with the definition under 201(a)(3).

As long as it is properly understood, our position and the Department of Justice’s position is the same.

We don’t believe there’s any discrepancy.

Your Honor’s question goes toward, ultimately, whether or not this was a properly instructed jury.

We believe that it was.

If there was any error in the instruction, we believe that it was harmless beyond a reasonable doubt, and that the jury’s verdict should be reinstated.

That’s our position.

Also, every–

John Paul Stevens:

Did you… I really didn’t read the Solicitor General’s brief as being identical to yours.

You really think it’s the exact same position you maintain?

Robert W. Ray:

–Ultimately, we believe the positions are the same, yes, Your Honor.

It is the capacity to act.

John Paul Stevens:

So, we can rely entirely on his brief, and you’ll be satisfied?

Robert W. Ray:

Well, I wouldn’t go that far.

[Laughter]

John Paul Stevens:

Well, why not?

Why not?

Robert W. Ray:

Obviously, we have an interest in defending the instruction that was given by the district court in this case.

That is not a position that the Solicitor General rendered any opinion on, for obvious reasons.

I mean, every lawsuit is a… a dispute between the parties.

We believe, in this lawsuit–

John Paul Stevens:

What are the obvious reasons?

They’re not obvious to me.

Robert W. Ray:

–I’m sorry?

John Paul Stevens:

What are the obvious reasons?

Robert W. Ray:

Well, we have an interest in defending the… the… the instruction and the jury’s verdict.

The Department of Justice’s position in this case as an amicus is in making sure there’s a proper understanding and interpretation of the language of the Federal gratuity statute.

So, in that sense, they are different.

Stephen G. Breyer:

How… how does it work, in your opinion?

Suppose a… a group of farmers asks the Secretary of Agriculture to come and talk to us.

They say, we’d like you to tell us about the Department’s policies that affect us.

Here is the ticket, or we’ll buy you lunch.

It’s a banquet.

Bring your wife to the banquet.

In your view, is that a Federal crime?

Robert W. Ray:

We don’t believe–

Stephen G. Breyer:

And if not, why not?

Robert W. Ray:

–We don’t believe there’s a sufficient showing of motivation, based on the facts.

Stephen G. Breyer:

No, no.

What they want is they definitely want him to come out, indeed, what they want him to do is talk about price supports.

They’re in favor of price supports.

They want him to talk at lunch.

Robert W. Ray:

If it’s completely untethered to the prospect of official action, that would not be a sufficient showing.

Stephen G. Breyer:

What do you mean “untethered”?

They want him to talk about official action.

They want him to talk about his policies as Secretary of Agriculture.

I give you the example, and I want to know, in your opinion, how does this statute apply?

Robert W. Ray:

On those facts as you’ve just added them, that would appear to suggest a motivation involving some capacity to act.

Stephen G. Breyer:

It’s a Federal crime, in your opinion?

Robert W. Ray:

There would have to be additional facts that were not present in your hypothetical that were present here.

Did they have any matters before that official?

Stephen G. Breyer:

Yes, yes.

Of course, farmers do.

They all do.

That’s what the Secretary of Agriculture does.

He decides things that affect farmers.

Robert W. Ray:

And… and under those circumstances, if that motivation were shown that it was for or because of that position, we believe that would be within the four corners of this statute, yes.

Stephen G. Breyer:

And, therefore, if farmers who ask the Secretary to speak, to come to lunch, to talk about his policies, are all committing Federal crimes.

I would have thought that was fairly common.

I may not understand–

Robert W. Ray:

Well, unless… remember that there were also defenses presented in this case.

In this particular case, as in your case potentially, the defense of friendship might apply, social purpose, or other innocent reason.

Stephen G. Breyer:

–Business.

Robert W. Ray:

And… and that… if those defenses were shown, then that would be sufficient… if that was the motivation for the gift, to defeat liability.

Anthony M. Kennedy:

In any case, you’re saying–

–Do you think any public officials in Washington will be surprised by your interpretation?

[Laughter]

Robert W. Ray:

Well, public officials–

Anthony M. Kennedy:

I’m serious about that.

There’s a huge gap between the general understanding and your interpretation.

And if… and if the statute is open to two plausible interpretations, it seems to me that we shouldn’t adopt yours for that reason.

Robert W. Ray:

–Your Honor, we don’t think so.

Because already there’s a scheme in place, under the Federal regulations, that deal with precisely the issue that you describe.

Public officials are already on notice about–

Stephen G. Breyer:

They don’t go… I would have thought it was good for Secretaries of Agriculture to explain to farmers what their policies will be in the future.

I mean, is it now the… the general understanding that they don’t?

Robert W. Ray:

–Your Honor, I see that my time has expired.

May I respond?

William H. Rehnquist:

You may answer the question.

[Laughter]

Robert W. Ray:

We’re not saying that we’re trying to bar access.

There’s no question that farmers have a right to appear before these individuals, these officials, and… and advance their position.

The question is buying access.

I mean, the official can appear as long as the official pays his own way.

The problem is when the official is in a relationship with someone who prospectively has action before them and takes these gifts and takes them on the nickel of the… the person who has an interest.

William H. Rehnquist:

I think you’ve answered the question, Mr. Ray.

Robert W. Ray:

Thank you, Your Honor.

William H. Rehnquist:

Thank you.

We’ll hear from you, Mr. Bloom.

Eric W. Bloom:

Thank you, Your Honor.

Mr. Chief Justice, and may it please the Court:

I’d like to turn immediately to a couple of issues raised in the questioning of the Appellant.

Justice Ginsburg, you asked the question: How did these instructions come to be?

And I think it’s very important to go through the procedural posture.

In this case, Sun-Diamond filed a motion to dismiss the indictment.

The government opposed that motion and, in very explicit terms, said that courts have made clear that for a gratuity to be established, it is not necessary to allege a direct nexus between the value conferred and an official act by the public official.

That’s page 5 in the government’s opposition.

Indeed, after–

William H. Rehnquist:

But do you… do you–

–in the district court?

Eric W. Bloom:

–Yes.

That was–

David H. Souter:

Do you contend that was erroneous?

Eric W. Bloom:

–I’m sorry?

David H. Souter:

Do you contend that that statement was erroneous, about the direct nexus?

Eric W. Bloom:

Yes, Your Honor, we do.

William H. Rehnquist:

Well, that’s way, way back in time in… in the proceedings.

I mean, it’s something the government said in opposition or a motion to dismiss in the district court.

How does that bear on what we have here?

The government may have changed its position.

Eric W. Bloom:

I understand that.

And I literally want to walk you through it.

Because the next step was–

William H. Rehnquist:

We’ve got half an hour.

[Laughter]

Eric W. Bloom:

–I understand.

I walk very quickly.

[Laughter]

Then we go to trial.

And at trial, in opening statements, the independent counsel… when I refer to the independent counsel, I mean the Office of Independent Counsel… told the jury, quote, what this is and what the law prohibits is giving a thing of value to a public official because the person is a public official, when there’s some business that you have before the public official.

That’s pages 3 and 4 of the transcript.

Then, at a sidebar, the independent counsel reaffirmed this view.

William H. Rehnquist:

–it’s the United States that’s the Petitioner here.

Eric W. Bloom:

I’m sorry… after 4 years… the United States.

The prosecutor then reaffirmed this view to the court, and said, essentially, the court did not require the showing of a nexus between the thing of value and the particular acts the Secretary may have taken.

It is not necessary under the law.

And that’s page 734 of the transcript.

This case was being tried under the

Eric W. Bloom:

“for or because of an official position. “

standard.

So, when the parties filed our respective proposed jury instructions, it is not surprising that the jury instructions do not come close to one another.

With respect to the jury instructions themselves, we believe that, effectively, it stripped the factfinder of finding the one question… essential question… in this case.

Specifically, whether in fact Sun-Diamond’s gifts were for or because of any official act.

Now, as I understand Mr. Ray–

Antonin Scalia:

Do you say it has to be because of some particular official act?

Eric W. Bloom:

–Ultimately, that’s not Sun-Diamond’s battle, but we do believe that… that the statute calls for a link between a gift on one hand and some specific or identifiable official act.

Antonin Scalia:

Specific or identifiable.

Well, I mean… I mean, let’s say I’m… I’m AT&T, and I just give enormous quantities of money to the Chairman of the Federal Communications Commission.

Eric W. Bloom:

Well–

Antonin Scalia:

That doesn’t violate this Act?

Eric W. Bloom:

–Well, two answers–

Antonin Scalia:

Saying, you know, I’m not asking you to do anything in particular.

I have no particular case in mind.

[Laughter]

Eric W. Bloom:

–Two answers–

Antonin Scalia:

I just… I just want you… just… I just want you to be a friend; that’s all.

[Laughter]

Eric W. Bloom:

–I strongly suspect that if I had matters before the FCC or before any department, it’s not going to be terribly difficult for the prosecutor, especially with the resources of the grand jury, to be able to identify matters.

The second point–

Antonin Scalia:

No, no.

Wait.

You have to take my hypothetical.

There is no particular matter that AT&T mentioned to the Chairman.

It just said, you know, I just love Chairmen of the FCC.

They are wonderful people.

They’re… you know, they could make a lot more money elsewhere.

I… this is in appreciation of your taking all this time out to serve the people.

And I… you know, here’s a couple of million dollars.

Antonin Scalia:

[Laughter]

Eric W. Bloom:

–Well, I strongly suspect that a jury could find that it was for an act, if one were identified.

But using your hypothetical–

Antonin Scalia:

No particular act.

Eric W. Bloom:

–I understand, sir.

Using your hypothetical, I would suspect that that person could be charged under one of the other statutes… the salary supplementation statute.

It sounds like he’s giving the money because of the job and because of his acts as… pursuant–

Antonin Scalia:

My question was… was not whether he could be charged under one of the other statutes.

It’s whether he can be charged under this statute.

Eric W. Bloom:

–Right.

And our answer is no.

Antonin Scalia:

Is no?

Eric W. Bloom:

Is no.

David H. Souter:

Now, in your view, what’s the… tell me what the distinction is between the requirement of… the specificity requirement of this statute and the specificity requirement of the bribery statute.

Eric W. Bloom:

Under bribery, you need a quid pro quo, there’s clearly strings attached.

David H. Souter:

Well, the quid pro quo is the agreement that connects the… the thing given with a specific act.

Eric W. Bloom:

Right, I understand.

David H. Souter:

It doesn’t have to… the act doesn’t have to be completed to violate the bribery statute–

Eric W. Bloom:

Right.

David H. Souter:

–We agree on that.

So… so, there’s… there’s a specific gift, specific act.

Now, you’ve been talking about… I think… about specific acts under the gratuity statute.

So, what’s… how do we distinguish between the two?

Eric W. Bloom:

Let us hypothesize that I’m giving a lot of gifts, not in exchange for, not with any implicit or explicit agreement that the government official is going to do me a favor in return.

There are no strings attached.

I’m plying this guy with gifts, hoping that it may influence him.

Hoping that when the time comes, that he’s going to rule on MPP or methyl bromide, that he’s going to think twice about me.

David H. Souter:

Well, then there is no… then I… maybe I misunderstood your position.

There is no specificity requirement under the… specificity as to the act requirement under the gratuity statute on your view; is that correct?

Eric W. Bloom:

No.

Eric W. Bloom:

Our view is that the prosecutor has to identify one or more acts for which the gifts are given.

David H. Souter:

Okay, we’re back to the specific.

what’s the difference between the one or more acts that he’s got to identify for the gratuity statute and the identification of one or more acts under the bribery statute?

Eric W. Bloom:

Under the bribery statute, there’s a quid pro quo.

David H. Souter:

Well, the quid pro quo… and correct me here… I thought quid pro quo meant that there was an agreement that the… that the gift would be in exchange for action in this particular instance.

Eric W. Bloom:

That is correct.

David H. Souter:

All right.

And I think what you’re saying is, if you have to… the only difference, then, is you don’t get too explicit about the agreement under the gratuity statute.

Eric W. Bloom:

There is no agreement.

David H. Souter:

You’ve got an… you’ve got an explicit… you’ve got a… you’ve got a particular gift, and you’ve got a specific act in mind, and the prosecutor has got to show it and prove it, but we just don’t get down to so many words in identifying… when… when we’re giving the gift, we don’t get down to so many words in identifying the connection between this gift and this act; that’s the difference?

Eric W. Bloom:

Right.

Essentially, there is no agreement in the case of a gratuity.

The… the typical or classical or traditional gratuity is the reward.

A reward for not taking… or one where the government official has committed themselves to performing that act.

David H. Souter:

Okay.

But… but the distinction is simply one of… of explicitness, of a lack of articulation of the connection; is that your position?

Eric W. Bloom:

Well, not even articulation.

There is no agreement.

David H. Souter:

Then why does the prosecutor have to prove specific acts?

Eric W. Bloom:

Because we believe that the statute almost cries out for it.

The words of the statute–

Ruth Bader Ginsburg:

When you were asking… if you’re arguing this, then you’re going beyond where the Court of Appeals went, because the Court of Appeals didn’t say it had to be this act or that act.

It… didn’t the Court of Appeals contemplate a multitude of acts that might be in the agency’s bailiwick?

Eric W. Bloom:

–In the appendix, the Court of Appeals decision is attached and… at page 8… and whatever degree of intent to influence may be necessary for a bribe.

A gift looking to future acts can be an unlawful gratuity, where the giver is motivated simply by the desire to increase the likelihood of one or more specific favorable acts.

Antonin Scalia:

And you say that’s… that’s wrong?

Eric W. Bloom:

No, we say that’s correct.

Stephen G. Breyer:

Well, why?

Why is it… I… I am confused by the two.

I thought the classical bribe is I want the public official to do something for me.

Stephen G. Breyer:

And, moreover, I go to him and say, I’ll pay you $1,000 if you do X. And it’s a fairly specific thing.

I thought the classical gratuity is what it says; it’s a tip.

The person did it anyway.

I say, thank you; thank you for giving me 48 million acres.

Thank you.

And here’s your tip, $1,000.

Now, normally, that would be in the past.

He would have done it.

But sometimes, I guess, it could be in the future.

He just doesn’t know I want him to do it, but he does it–

Eric W. Bloom:

Well–

Stephen G. Breyer:

–independently, and I give him a tip.

And I give him a tip for what… I mean, I don’t understand how the future works.

But if that’s the distinction, you don’t need any agreement whatsoever in the gratuity case.

None.

Nor does it matter that you’re trying to influence him.

It couldn’t matter less that you’re trying to influence him.

Influence has nothing to do with it.

Now, am I right?

Explain… I’m not at all sure I’m right.

Eric W. Bloom:

–No.

You are absolutely, perfectly correct.

As a matter of fact, what you articulated is very recently what the Fourth Circuit adopted in United States v. Jennings.

And perhaps it’s best to kind of set up a hierarchy of conduct.

Clearly, the top tier would be bribery.

And there you have a quid pro quo, this for that, there are strings attached.

There is a tier… gratuities… clearly covering… and I believe what Congress, in the legislative history, suggested it was intending to cover… were rewards, a tip, a thank you.

The question is whether a gratuity can also cover instances with respect to influence.

And I kind of like the Court of Appeals–

William H. Rehnquist:

Well, how… how about the “to be performed” part of the statute?

Eric W. Bloom:

–Well, what the courts have done that interpret the gratuity statute as merely a reward… in fact, there was an Eighth Circuit case that affirmed an instruction.

And the instruction said this: Find the defendant guilty if you find that the gift was intended as a reward for any acts the government official committed or committed to perform.

William H. Rehnquist:

Well, but committed to perform is bribery.

Eric W. Bloom:

No, because–

William H. Rehnquist:

That’s simply reading out the part of the statute that says “to be performed”.

Eric W. Bloom:

–Well, let me give you the hypothetical.

What about a–

William H. Rehnquist:

Well, don’t ask me questions.

[Laughter]

Eric W. Bloom:

–Let me give you an example of what it is I’m talking about, Mr. Chief Justice.

[Laughter]

And that is, I, as a Senator, make out a very public statement: I am going to vote for this piece of legislation.

I am committed to performing it.

I haven’t acted on it yet.

In fact, that legislation may not even be pending.

I’m thrilled that he’s taking this stance.

It is an act to be performed.

I give him the reward.

Stephen G. Breyer:

But then the dif… the difficult… why this case isn’t so totally obvious, is because… take a gratuity statute… you’d say that that… that, okay, I understand perfectly well you’re giving a person a tip.

That’s what you’re not supposed to do.

Well, you don’t give a person a tip for being who he is; that’s clear… I don’t think… that’s not a tip.

So, being in a position, no, that’s not in the statute.

But it isn’t so clear that it has to be an absolutely precise act.

You could give… you could be giving a person a tip because of a whole series of things that he did or a whole series of things that he now has promised to do.

What a good guy he is.

He says: I promise to buy this piece of property next year.

That’s to be performed.

You say: That’s wonderful.

Now, he doesn’t say to buy this piece of property, he says to buy some property.

Now, he doesn’t say to buy some property, he says to take a certain course of action.

Stephen G. Breyer:

And then it becomes vaguer and vaguer.

And that doesn’t necessarily stop it from being a tip.

And that’s why I think this case isn’t obvious, one way or the other.

Eric W. Bloom:

And certainly it’s a legitimate question–

Yes.

Eric W. Bloom:

–whether or not–

Stephen G. Breyer:

What’s your response?

Eric W. Bloom:

–That… that’s exactly right.

And one of the things that we try to grapple with is–

Stephen G. Breyer:

Yeah, but you’ve got to argue that this general course of conduct is not something that falls within the statute.

Rather, you want it to be more specific acts.

Eric W. Bloom:

–Well, we believe that the statute does call for that, that’s right.

And one of the questions here that I think it’s a difficult–

Ruth Bader Ginsburg:

But… but Judge Williams didn’t say that.

Indeed, I think he rejected your position.

You called our attention to page 8 in the appendix.

If you look at page 13 and 14, where Judge Williams said: at the same time, we reject Sun-Diamond’s broader tack on the indictment–

–Where are you reading from?

Appendix page 13.

The… the paragraph–

–Okay, thank you.

–at the end of the page.

Okay.

Where the D.C. Circuit said that it isn’t necessary to tie the particular free service provided to particular ticket or tickets.

Leniency in a multitude of specific acts was enough.

That an official has an abundance of relative… relevant matters on his plate should not in… insulate him from the gratuity statute.

Eric W. Bloom:

–And, ironically, we actually agree with this.

It’s still a multitude of specific acts.

You can tell us what those… what the group of specific acts are.

Antonin Scalia:

I… okay, let’s use a hypothetical.

Antonin Scalia:

I… the new Chairman of the FCC, and AT&T comes in and says: You’re going to have a multitude of acts in your office.

And, you know, no specific one, but here’s $2 million; think well of us in all of these… in everything you do in this office.

[Laughter]

Okay.

Is that a violation?

Eric W. Bloom:

Well, I think the answer is probably yes.

And I think that the answer to why it’s probably yes–

Antonin Scalia:

What specific acts are involved?

Eric W. Bloom:

–Well, I was going to just say, provided the government can identify the myriad of specific acts.

In other words, clearly, if I’ve got 10 matters pending, and I could literally give all that money–

Antonin Scalia:

It’s just everything he does.

It’s just everything he does in his office.

Which is why it’s not a very… a very far stretch to say that I’m giving him the money because of his office.

Because everything that he does as Chairman of the FCC–

Eric W. Bloom:

–What we’re trying to–

Antonin Scalia:

–or at least everything that affects point-to-point telecommunications.

Eric W. Bloom:

–What we’re trying to protect against is a jury just saying, wait a minute, these guys gave money; it must have been to influence.

Influence what?

The Act requires a gift on the one hand, act or acts on the other hand, and some nexus for or because of an official act in the middle.

And–

Stephen G. Breyer:

To influence… in… in the hypothetical, here is the money, now think well of us.

I’m giving you some money.

Please, think well of us.

That’s bribery, not a gratuity, isn’t it?

Eric W. Bloom:

–Well, I… I–

Stephen G. Breyer:

It’s not… if… if I’m giving you the money because you will think well of us, it’s a gratuity.

Eric W. Bloom:

–Well, I think that’s correct.

Stephen G. Breyer:

If I’m giving you the money in order to, is it bribery?

Or may… maybe I’m not right about that.

Eric W. Bloom:

Well, certainly, I think what the jury would infer there is I’m giving the money so that he will act favorably with respect to us, with respect to these 10 matters we have pending.

Antonin Scalia:

Well, that’s… that’s… you don’t think it’s a… it’s a violation of the bribery statute, do you?

Eric W. Bloom:

If it’s a quid pro quo–

Antonin Scalia:

But I haven’t asked for any commitment on his part.

You… you’ve been telling us that there has to be an agreement.

Eric W. Bloom:

–Right.

If there’s an implicit agreement, I mean, that’s going to be a question in fact for the jury.

Antonin Scalia:

How is it an implicit agreement when I say, here, please, think well of us?

Eric W. Bloom:

If that’s all there is… if that’s all there is–

Antonin Scalia:

That… that was my hypothetical.

Eric W. Bloom:

–Then it may well be a gratuity.

And all we would say is, in the indictment, identify what those acts are that are pending.

John Paul Stevens:

Well, but then, also, if he rules against the giver in every case, it would pretty clearly not be a bribery, but it would clearly still be a gratuity if the gift was given in order to motivate him to… to act favorably.

Eric W. Bloom:

To make acts more likely.

John Paul Stevens:

Yes.

Eric W. Bloom:

Yes.

Anthony M. Kennedy:

And is it possible to interpret the statute so that it has a retroactive reach?

There has to be a commitment to take an act or an act has to be taken?

Eric W. Bloom:

Well–

Anthony M. Kennedy:

You apparently don’t take that position.

Eric W. Bloom:

–Well, I was going to say, several courts have.

The reason why we haven’t is because the words “for or because of” we think are probably broad enough to capture not only a reward, but it probably embraces improper attempts to influence, where it does not rise to the level of bribery.

Anthony M. Kennedy:

The problem, once you do that, and couple the analysis with the possibility of being multiple, specific acts, or at least more than one, you’re very close to “official position”.

Eric W. Bloom:

Well, I… I disagree.

Oh, no, I don’t disagree, because it’s actually close, but it’s… it’s still a long way from… from home.

In fact, this is really, I think, the key, as I understand it, to the independent counsel’s argument.

The independent counsel says, in this case–

The government.

Eric W. Bloom:

–I’m sorry.

The government.

Thank you.

Eric W. Bloom:

In this case, Sun-Diamond is a regulated entity.

Therefore, we don’t have to prove it’s for or because of any official act.

We merely have to prove it was for or because of an official position.

Essentially, as I understand what the government is doing here, is they are saying that there are two classes of potential defendants.

And the matter of proof is different, depending on whether or not you are within one class or the other.

William H. Rehnquist:

Well, the… the hypothetical that might distinguish the situation is where someone who just likes to be around high… high-ranking government officials, if Sun-Diamond gave the money to the Secretary of Energy, and… or gave a gift… and they had nothing in the world the Secretary of Energy could do to affect Sun-Diamond… that would be because of official position, but not because of acts to be performed, don’t you think?

Eric W. Bloom:

Yes, I do.

And I think… and I don’t think we should presume that because they like to be around cabinet officers, that because it happens to be the Secretary of Agriculture, that it must have been for or because of an official act.

William H. Rehnquist:

Well, but at least it was permissible… it would be permissible for the jury to find that, in that case.

Eric W. Bloom:

Yes.

And that’s obviously our concern here.

The jury did not get that question.

And, look, the jury can take a look at a lot of factors to determine whether or not it should make the inference that indeed the gift is for or because of an official act.

The jury may take a look at the fact that the entity giving the gifts has matters pending.

Anthony M. Kennedy:

Is one of those factors whether or not the receiving official could reasonably interpret, or should reasonably interpret, the action as being designed to reward a particular official act?

Eric W. Bloom:

I think it could be a factor, yes.

I mean, clearly, what I would think are the most–

Anthony M. Kennedy:

Should you instruct the jury to that effect in every case?

Eric W. Bloom:

–I tend to be partial to the plain vanilla circumstantial evidence that we get in all the jury instructions.

What I do believe–

Antonin Scalia:

You keep saying “specific act”.

You keep using that term.

But… but the kind of hypotheticals you’re accepting do not have “specific act”.

Why isn’t it enough that the person gave the money to obtain favorable action in the abstract?

I gave him money just because, you know, you have been a friend to AT&T over the years, in… in your position as Chairman.

I’m not referring to any particular decisions.

And if the government had to come up with the particular ones that it was given for, you couldn’t identify any particular ones.

But I think you’d be under the statute if you said, I’m just giving you this because you have been a good friend to our company over the years.

Wouldn’t that be a violation of the statute?

Eric W. Bloom:

–I don’t believe so.

Eric W. Bloom:

I don’t believe so.

John Paul Stevens:

May I ask–

–Well, it would be if–

–May I just… one question, if I may.

Would you tell me the difference between your position and the position of the Department of Justice in their separate brief?

Eric W. Bloom:

Well, we certainly agree a lot with the Department of Justice, in that it’s generally a jury matter to determine the issue of intent.

We probably disagree with the Solicitor General, I could think of, in three ways.

First, the Solicitor General says that based on the regulatory relationship only, a jury should be able to infer guilt beyond a reasonable doubt.

We agree that the substantiality of the gifts and the fact that there are matters pending are in fact factors for the… for the jury to consider.

And I think we can’t decide in a vacuum whether or not that would be sufficient from which a reasonable jury can find beyond a reasonable doubt that gifts were given for or because of an official act.

Second–

Ruth Bader Ginsburg:

Could you clarify that in terms of an instruction?

Suppose the judge said: You may, but are not required, to infer from the fact that this corporation has matters, or this entity, has matters pending before the agency that this gift was given to influence official acts.

Eric W. Bloom:

–I would prefer–

Ruth Bader Ginsburg:

Would that be a proper charge?

Eric W. Bloom:

–I would prefer a broader charge, that… that instructs the jury–

Ruth Bader Ginsburg:

Well, I didn’t ask whether you preferred it; I asked if that would be a legally correct charge?

Eric W. Bloom:

–It… it may be.

I, frankly, think it may be a bit prejudicial.

The charge, if I may, that I would suggest to the jury is that the jury may consider the substantiality of the gifts, both to the donor and to the donee, the substantiality of the interests to the donor, the timing of the gifts vis-a-vis acts.

John Paul Stevens:

Would you finish your answer to my question, please?

Eric W. Bloom:

Sure.

The second place where we disagree with the Solicitor General is that at one point it seems to us that he equates capacity to act with act.

And I believe that capacity to act is an awful lot like position, and suggests status.

For example, I may want to hobnob with someone who has the capacity to act because it will enhance my prestige.

The third place where we disagree is specifically on the… whether or not the statute requires a nexus to a particular act or just a general act.

Aside from that, I think–

Sandra Day O’Connor:

On that point, we don’t have to agree with you on that position to affirm the judgment below, do we?

Eric W. Bloom:

–Absolutely not, Your Honor.

David H. Souter:

But let me get back to your… what you mean by

David H. Souter:

“the nexus to the particular act. “

And I guess I’m going back to Justice Ginsburg’s hypothetical.

If the… if the jury charge… if the judge charged the following, would it be legally sufficient?

In order to show that the gift was given for or because of an official act, the government must prove that the gift was given with an intent to influence the performance of an official act.

You may… you need not necessarily, but you may find, on this evidence, that the gift was so given because, at the time it was given, there were two matters pending before the Secretary in which the donor, Sun-Diamond, had an interest.

One was the insecticide interest and the other was the… the grants to subsidiaries interest.

Would that have been a legally sufficient instruction?

Eric W. Bloom:

I suspect that the answer is yes.

But, to be candid, the converse of that question says, could I, as a defendant, prevail on a Rule 29 motion?

And I will tell you that I, as a defense counsel, would make a very strong Rule 29 motion, based on the facts in this case, that no rational trier of fact could find Sun-Diamond guilty on this record.

David H. Souter:

Why?

Make your argument.

Eric W. Bloom:

Certainly.

There were two matters that the government proved were pending.

One was the MPP, the grant program.

David H. Souter:

Yeah.

Eric W. Bloom:

The evidence was that Sun-Diamond wanted… wanted the Secretary… this is… I’m sorry, this is the… the indictment… alleged that Sun-Diamond wanted the Secretary to adopt a definition of a small entity to cover its member cooperatives.

Yet the evidence at trial was that Richard Douglas told the Secretary this is probably something that is better left for Congress.

That’s one.

There’s no effort and there’s no evidence to reflect an effort to influence the Secretary of Agriculture in any way to assist Sun-Diamond.

The second matter that was pending dealt with the issue of methyl bromide.

Methyl bromide is a fumigant that the EPA was proposing to phase out.

The history, I would argue, of the USDA was opposing the phaseout.

Indeed, the evidence in the record demonstrates that the USDA was the largest user of methyl bromide.

David H. Souter:

So, you’re saying they were doing it anyway.

That’s your argument.

Okay.

Eric W. Bloom:

That is correct.

I understand.

Eric W. Bloom:

What I was going to go back to is the issue of these two classes, and the fact that because Sun-Diamond is a regulated entity, somehow we deserve a different standard.

Eric W. Bloom:

I think, effectively, what that does is create an impermissible irrebuttable presumption.

That is, if the jury were to find… and if the jury did find… that Sun-Diamond gave gifts for or because of any official position, then the court, as a matter of law, was saying, then Sun-Diamond must have given it for or because of any official act.

And under In re Winship, of course, it is the government’s burden to prove each and every element of the offense beyond a reasonable doubt.

I wanted to go back, also to the issue of this hierarchy of conduct.

Clearly, at the top of the hierarchy is bribery.

Clearly, below that we have the gratuity as a reward.

In our view, at the bottom is for or because of an official position, which is governed, we believe, administratively.

There is a question as to whether or not there is a gap between bribery and the gratuity.

Does bribery… clearly, bribery covers improper attempts to influence.

Clearly, gratuity covers the issue of rewards.

The difficult issue is whether or not there is a gap that is filled by the gratuity statute.

And that’s why I’m partial to the language of the Court of Appeals that says, essentially, we don’t have to decide what the bribery statute line is.

But wherever we draw that line, the gap will be filled by the gratuity statute.

To conclude, we believe that the district court, by instructing the jury that the government did not have to prove that Sun-Diamond gave gifts for any act at all stripped the jury of its fact-finding mission.

It simply did not have an opportunity to decide the one question that was crucial to this case.

That question was purposefully kept away from the jury because the government argued, and the district court agreed, that no connection needed to be shown.

That relieved the government of its constitutional obligation to prove every element of the offense beyond a reasonable doubt.

That was error.

And for that reason, we therefore ask for this Court to affirm the decision of the Court of Appeals.

William H. Rehnquist:

Thank you, Mr. Bloom.

The case is submitted.