In The

Supreme Court of the United States




Decided February 22, 1984

Justice O’Connor, Dissenting

Topic: Economic Activity*Court vote: 5–4
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Joining O'Connor opinion: Justice BRENNAN Justice BRENNAN Justice REHNQUIST Justice REHNQUIST Justice STEVENS Justice STEVENS
Citation: 465 U.S. 482 Docket: 82–5279Audio: Listen to this case's oral arguments at Oyez

* As categorized by the Washington University Law Supreme Court Database

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JUSTICE O'CONNOR, with whom JUSTICE BRENNAN, JUSTICE REHNQUIST, and JUSTICE STEVENS join, dissenting. The rule of lenity demands that "ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity."Rewis v. United States,401 U. S. 808,401 U. S. 812 opinion cannot carry the weight the Court places on it, and there is good reason to reject the Court's interpretation of the statute.(1971). The Court concludes that congressional intent to include persons like petitioners within the coverage of 18 U.S.C. § 201 is clear enough to make the rule of lenity inapplicable. The statutory language admits of the Court's reading, and the case for that reading would be strong, though perhaps not persuasive, if § 201 were a civil statute. I differ with the Court in that I find the evidence of congressional intent too weak to meet the higher standard for resolving facial ambiguity against a defendant when interpreting a criminal statute. In my view, the evidence of intent offered by the Court's


The language of § 201 and of its predecessors, as the Court's opinion points out, is intentionally broad. But that fact merely creates the interpretive problem -it does not resolve it. Congress intended to carry forward the pre-1962 bribery statute when it enacted § 201, and it understood the coverage of the bribery law to be broad. See ante at 465 U. S. 491 -493, 465 U. S. 494 -495. Moreover, the purpose of the statute was undoubtedly to proscribe bribery of all those who carry out a federal trust. Ante at 465 U. S. 496 . To say that the statute is broadly aimed at all persons bearing a federal trust, however, is not to resolve the ambiguity over what constitutes a federal trust. Indeed, the statutory language -"acting for or on behalf of the United States" -is merely a formulation of the public trust idea, and the Court concedes that the statutory language can accommodate both petitioners' and respondent's views. Ante at 465 U. S. 491 . The breadth of the language accordingly offers little help in defining the ambiguous coverage of the statute.

The legislative history likewise provides no significant support for the Court's reading of the statute. The critical statutory language has been a part of the federal bribery statute for more than 100 years. See ante at 465 U. S. 493 , n. 11. Yet, as the Court's opinion indicates, Congress apparently has never specifically considered the statute's coverage of federal grant recipients. The legislative history is simply silent on the question to be answered in these cases.

The Court mentions the 1948 extension of the bribery statute and suggests that it is significant. Ante at 465 U. S. 492 , n. 9. As the legislative history of that extension makes clear, the only specific purpose of the extension was to ensure coverage of persons acting for federally owned or controlled corporations. Ibid.; H.R.Rep. No. 304, 80th Cong., 1st Sess., A14 (1947). There is no reason to believe, and it would be exceedingly odd to suggest, that Congress thought of federal grant recipients generally, or of grant recipients that are state or local governments in particular, as somehow analogous to federally controlled corporations. Accordingly, the 1948 extension provides no support for reading the bribery statute to cover persons like petitioners.

The legislative history of § 201 from the 87th Congress, which enacted the current version of the statute, contains two items that bear on the meaning of the statute's "acting for . . ." language. The Court relies heavily on these two items. One, however, offers no support for the Court's reading, and the other offers support of, at best, weak and uncertain significance.

First, the Court notes, ante at 465 U. S. 494 -495, that the House Judiciary Committee cited United States v. Levine, 129 F.2d 745 (CA2 1942), as an example of judicial construction of the statute. H.R.Rep. No. 748, 87th Cong., 1st Sess., 18 (1961). The Court concludes that this citation establishes congressional intent to include within the coverage of the bribery statute persons other than those with direct contractual bonds to the United States. Ante at 465 U. S. 496 . That conclusion is surely correct. But saying that the class covered by the statute includes more than direct contractors does not begin to define the class actually covered and, in particular, does not imply that the class includes individuals employed by federal grant recipients or by their subgrantees.

Moreover, the Levine case itself does not suggest inclusion of such individuals. The individual involved in Levine was an employee of a person appointed by the Federal Government to carry out a federally defined regulatory task. As an employee of an agent of the United States, he was obviously acting for the United States. An employee of a grantee or subgrantee of the United States is in a quite different position. It is by no means obvious that such a person is acting for the United States, since a grantee does not necessarily have an agency relationship with the United States. Indeed, as the Court concedes, ante at 465 U. S. 499 , not all recipients of federal grant funds are acting for the United States: for example, recipients of science research funds are surely not acting for the United States, even when they use some of those funds to purchase assistance in accordance with the federally approved grant proposal. That Congress approved the Levine case simply cannot support an inference that Congress intended the bribery statute to cover persons in petitioners' position.

The Court also relies on the 87th Congress' retention of the "acting for . . ." language after several bills not containing that language had been proposed. Ante at 465 U. S. 493 -494. Those bills proscribed acceptance of a bribe by "an officer, agent, or employee of the United States in the executive, legislative, or judicial branch of the Government, or of any agency." See ante at 465 U. S. 494 , n. 13. The Department of Justice recommended retention of the pre-1962 language because the proposed "officer, agent, or employee" language "could be construed" to be narrower than the "acting for . . ." language. See ante at 465 U. S. 493 , n. 12. The Court accordingly concludes that Congress intended the bribery statute to cover more than those persons with a formal employment or agency relationship with the United States.

This conclusion is too strong. Neither the Department of Justice testimony nor anything else in the legislative history explains what persons were thought to be outside the coverage of the discarded bills but within the coverage of the "acting for . . ." language. For all the legislative history shows, no one in Congress or appearing before Congress had any such persons in mind. Indeed, the Court's interpretation of the statute suggests as much. Anyone who "occupies a position of public trust with official federal responsibilities," ante at 465 U. S. 496 , would seem to be an "agent" of the United States when carrying out those responsibilities, since the Court gives meaning to its public trust test by requiring federal direction of the tasks to be performed by the person bribed, ante at 465 U. S. 496 -498, 465 U. S. 500 . See Restatement (Second) of Agency § 1 (1958) (agency relationship created when one person agrees with another "that the other shall act on his behalf and subject to his control"). The most that can be said of Congress' reenactment of the "acting for . . ." language following the proposal and criticism of the alternative bills is that Congress thought that there could conceivably be some difference between the enacted and unenacted language, and that the pre-1962 language should be retained out of caution, as Congress did not intend to narrow the coverage of the bribery statute.

The conclusion that employees of federal grant recipients or their subgrantees were intended to be covered by the federal bribery statute finds as little support in the cases cited by the Court, ante at 465 U. S. 498 -499, as it does in the statutory language and legislative history. The only case from this Court that interpreted the language at issue is Krichman v. United States, 256 U. S. 363 (1921), and that case, if relevant at all, cannot support the Government, since it held that the defendant was not covered by the bribery statute. The lower court cases relied on by the Court that involve grant-in-aid programs are in conflict. Compare United States v. Loschiavo, 531 F.2d 659 (CA2 1976); United States v. Del Toro, 513 F.2d 656 (CA2 1975); United States v. Hoskins, 520 F.Supp. 410 (ND Ill.1981), with United States v. Mosley, 659 F.2d 812 (CA7 1981); 683 F.2d 195 (CA7 1982) (decision below in these cases). Thus, there is no consistent lower court construction of the statute as it applies to grant recipients to bolster the Court's reading.

The other cases cited by the Court all involved persons in circumstances quite distinguishable from that of employees of federal grant recipients or their subgrantees. United States v. Hollingshead, 672 F.2d 751 (CA9 1982), involved an employee of a "fiscal arm" of the Federal Government "carrying out tasks delegated by a government agency." Id. at 754. United States v. Kirby, 587 F.2d 876 (CA7 1978), involved persons acting under federal licenses as grain inspectors for the Federal Government. United States v. Gallegos, 510 F.Supp. 1112 (NM 1981), involved an individual who

had been assigned to work in an office of the Farmers Home Administration . . . to assist in administering an FHA program.

Id. at 1113. Harlow v. United States, 301 F.2d 361 (CA5), cert. denied, 371 U.S. 814 (1962), involved an employee of a federal instrumentality operating on United States military bases. United States v. Griffin, 401 F.Supp. 1222 (SD Ind.1975), affirmance order sub nom. United States v. Metro Management Corp., 541 F.2d 284 (CA7 1976), involved a person under direct contract with the Federal Government to solicit and receive bids for federal rehabilitation contracts and to prepare and inspect property that is under the control of the Federal Government and is eligible for such rehabilitation. In all of these cases the person bribed had a more or less direct agency relationship with the Federal Government. None of the cases dealt with a federal grant program and the accompanying uncertainty about whether the bribed person's activities were being carried out solely on the grantee's behalf, though with financial support from the Federal Government, or were being carried out on behalf of the Federal Government.

In sum, neither the statutory language, legislative history, nor case law provides any persuasive evidence that Congress intended the federal bribery statute to apply to persons in petitioners' position. The Court's conclusion requires some affirmative reason to believe that Congress thought that employees of federal grant recipients or their subgrantees are acting for or on behalf of the Federal Government, even when the grant recipient is a state or local government. No such reason, and certainly no reason strong enough to escape the pull of the rule of lenity, has been advanced.


Not only is there an absence of support for the Court's conclusion, but there are several reasons to reject it. Federal grant programs to state and local governments as well as to private organizations have been in existence since the 19th century. See 1 R. Cappalli, Federal Grants and Cooperative Agreements §§ 1.19-1.22 (1982); Elazar, Federal-State Collaboration in the Nineteenth Century United States, 79 Pol.Sci.Q. 248 (1964). By the middle of this century, grant programs to state governments in particular were a major component of the federal budget. When Congress enacted § 201 in 1962, it was spending more than $7 billion a year, or approximately 7% of the federal budget, on grants to state and local governments. See United States Bureau of the Census, Historical Statistics of the United States, Colonial Times to 1970, Part 2, pp. 1123, 1125 (1975). That amount increased to more than $40 billion by 1975, and today stands at approximately $90 billion, more than 10% of the federal budget. See Executive Office of the President, Office of Management and Budget, Special Analyses, Budget of the United States Government, Fiscal Year 1984, p. H-16 (1983).

Against this background, the long congressional and judicial silence on the application of the federal bribery statute to persons like petitioners takes on added significance. Despite the magnitude of federal grant programs in general and of federal programs making grants to state and local government in particular, there is no indication that Congress has ever considered whether employees of grant recipients are "public officials" within the meaning of the federal bribery statute, even though Congress studied and revised the statute in both 1948 and 1962. Moreover, there appears to be no reported case involving a prosecution against such employees under § 201 or its predecessors until the early 1970's. The Second Circuit's 1975 case, United States v. Del Toro, supra, decided at a time when federal grants to state and local governments totaled more than $40 billion, is apparently the first case to have presented the problem. Given that bribery of persons responsible for administering federal grant funds is exceedingly unlikely to be a recent phenomenon, cf. United States ex rel. Marcus v. Hess, 317 U. S. 537 (1943) (bid-rigging by contractors with local governments administering federal funds); United States v. Laudani, 320 U.S. 543 (1944) (kickbacks to subcontractor of Port of New York Authority on project receiving federal grant money), the most plausible inference is that neither Congress nor federal prosecutors believed that the federal bribery statute extended to employees of federal grant recipients or their subgrantees, at least when the grantee is a state or local government.

That inference is supported by the fact that federal grant programs generally, and grant-in-aid programs to state and local governments in particular, are categorically different, and are treated by law as categorically different, from other types of federal activity. Such programs have been treated as forming a distinctive category of governmental activity by statute, see Federal Grant and Cooperative Agreement Act of 1977, 92 Stat. 3, 41 U.S.C. §§ 501-506, 508, 509 (1976 ed. and Supp. V), and by regulation, see 1 R. Cappalli, supra, §§ 5.01-5.56. The main defining characteristic of the category is the principle of grantee autonomy: although grants impose conditions on the use of grant funds, grantees are left considerable discretion to design and execute the federally assisted programs without federal intrusion. See 41 U.S.C. § 504 (1976 ed., Supp. V) (definition of "grant" requires that "no substantial involvement is anticipated between the executive agency, acting for the Federal Government, and the State or local government or other recipient during performance of the contemplated activity"); 1 R. Cappalli, supra, § 1.07. That principle means that the grantee's activities are typically not attributable to the United States, see United States v. Orleans, 425 U. S. 807 (1976) (not attributable for purposes of tort liability), and suggests that those activities are not undertaken on behalf of the Federal Government, cf. Restatement (Second) of Agency § 14 and Comment a (1958) (principal has right to control conduct of agent, and an "agent is subject to a duty not to act contrary to the principal's directions, although the principal has agreed not to give such directions"). Indeed, in different though related contexts, this Court has recognized that

[g]rants of federal funds generally do not . . . serve to convert the acts of the recipient from private acts to governmental acts absent extensive, detailed, and virtually day-to-day supervision.

Forsham v. Harris, 445 U. S. 169 , 445 U. S. 180 (1980); see also id. at 445 U. S. 180 , n. 11 ("Before characterizing an entity as federal' for some purpose, this Court has required a threshold showing of substantial federal supervision of the private activities, and not just the exercise of regulatory authority necessary to assure compliance with the goals of the federal grant"); United States v. Orleans, supra, at 425 U. S. 815 .

The principle of grantee autonomy is basic to all grant programs, but its significance is greatest in two circumstances especially relevant to these cases. First, grantee autonomy is strongest in "block grant" programs, such as the Housing and Community Development Block Grant program at issue here. In such programs, federal control over the spending of the distributed funds is minimized, and the grant recipient cannot plausibly be said to be acting for anyone but itself. The Federal Government increasingly uses block grants for its grants-in-aid to state and local governments. See 1 R. Cappalli, supra, §§ 1.33-1.51 (describing characteristics of block grants and noting major shift toward block grants in 1981); United States Advisory Commission on Intergovernmental Relations, Block Grants: A Comparative Analysis (1977)

Second, the principle of grantee autonomy applies with special force when federal grant recipients are state or local governments. Principles of federalism inherent in our constitutional system have long played a significant role in the congressional creation of federal grant-in-aid programs. See R. Shapek, Managing Federalism: Evolution and Development of the Grant-in-Aid System (1981). Such principles must shape the construction of the statutory language at issue in these cases. They demand a strong presumption that state and local governments are carrying out their own policies and are acting on their own behalf, not on behalf of the United States, even when their programs are being funded by the United States. A proper respect for the sovereignty of States requires that federal programs not be interpreted to deputize States or their political subdivisions to act on behalf of the United States unless such deputy status is expressly accepted or, where lawful, expressly imposed. It would be inconsistent with the general relationship between the Federal and State Governments to conclude, absent such express actions, that a State is acting in effect as an agent of the United States.

Congress apparently entertained a similar thought when it amended the Grain Standards Act in 1976 to apply § 201 to federally licensed grain inspectors employed by a state agency to exercise federally delegated authority to conduct official inspections of grain. Pub.L. 94-582, § 10, 90 Stat. 2877, 7 U.S.C. § 84(d). If the inspectors had not been state employees, it would have been perfectly apparent -on the authority of United States v. Levine, 129 F.2d 745 (CA2 1942), for example -that they were acting on behalf of the United States. See United States v. Kirby, 587 F.2d 876, 879-880 (CA7 1978). Congress believed that the federal bribery statute had not previously applied when it enacted the 1976 amendment. See H.R.Rep. No. 94-966, p. 5 (1976); S.Rep. No. 94-747, pp. 9, 17 (1976); S.Conf.Rep. No. 94-1389, p. 47 (1976). The inference seems inescapable that Congress thought it extraordinary, and worth explicit statutory direction, for state employees not actually on detail to the Federal Government to be considered to be acting on behalf of the United States.

Thus, federal grants, especially when the grant recipient is a state or local government, create a distinctive type of relationship between the Federal Government and employees of the grant recipient or its subgrantees. Congress has recognized as much. For the Court to apply the bribery statute to petitioners is to extend the statute to a class of individuals that Congress thinks of as different from that of any others it has intended § 201 to cover and whose relation to the Federal Government raises problems of autonomy and federalism never addressed by Congress in the context of the federal bribery statute. Consequently, with respect to employees of grant recipients or their subgrantees, at least when the grant recipient is a state or local government (as it is in these cases), I do not think that the rule of lenity can be overcome.

Finally, I think it especially inappropriate to construe an ambiguous criminal statute unfavorably to the defendant when the construction that is adopted leaves the statute as unclear in its coverage as the bare statutory language. The rule of lenity rests on the notion that people are entitled to know in advance whether an act they contemplate taking violates a particular criminal statute, even if the act is obviously condemnable and even if it violates other criminal statutes. * The "public trust" standard adopted by the Court provides no more guidance to employees of a grant recipient or its subgrantee than does the statutory language, "acting for or on behalf of the United States." There are hundreds of federal grant programs. See Executive Office of the President, Office of Management and Budget, 1983 Catalog of Federal Domestic Assistance. Yet it is impossible to tell from the Court's analysis just what sorts of federal regulation make a grant recipient subject to the bribery statute. A criminal statute, after if not before it is judicially construed, should have a discernible meaning. I do not think the Court offers one.

I respectfully dissent.

It is, of course, a question outside this Court's jurisdiction whether any given state bribery law covers persons, like petitioners, who are employed by an organization that has contracted with a local government to administer funds received by the local government under a federal grant.


* Most, if not all, States criminally proscribe bribery and acceptance of bribes, though the statutes vary in their definitions of the required relationship of the person bribed to the government. See 12 Am.Jur.2d Bribery §§ 1-3, 12-14 (1964 and Supp.1983). For example, the Illinois bribery statute provides that a person receiving money or property commits bribery if he

receives, retains or agrees to accept any property or personal advantage which he is not authorized by law to accept knowing that such property or personal advantage was promised or tendered with intent to cause him to influence the performance of any act related to the employment or function of any public officer, public employee or juror . . . or . . . [h]e solicits any property or personal advantage which he is not authorized by law to accept pursuant to an understanding that he shall influence the performance of any act related to the employment or function of any public officer, public employee or juror.

Ill.Rev.Stat., ch. 38, § 33-1 (1977).

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