United States v. Mark Alfisi

Mark Alfisi appeals from a conviction by a jury before Judge Hellerstein on counts of: (i) bribery of a public official in violation of 18 U.S.C. § 201(b)(1)(A); (ii) paying an unlawful gratuity to a public official in violation of 18 U.S.C. § 201(c)(1)(A); and (iii) engaging in a conspiracy to commit bribery in violation of 18 U.S.C. § 371.

The charges against Alfisi arose out of payments he made to a United States Department of Agriculture ("USDA") produce inspector at the Hunts Point Terminal Market. On appeal, Alfisi contends principally that the district court's jury instructions failed to delineate accurately the difference between the crime of bribery, which includes a quid pro quo element, and that of paying unlawful gratuities, which does not. He also claims that the instructions erroneously allowed the jury to convict him of bribery even though his payments were intended only to procure lawful action from a government official. Alfisi further argues that the jury should not have been allowed to consider the payment of an unlawful gratuity as a lesser-included offense of bribery. Alternatively, he claims that, if the payment of an unlawful gratuity was properly charged as a lesser offense, then the misdemeanor of unlawfully supplementing a federal employee's salary should also have been submitted as a lesser offense to the jury. Finally, Alfisi contends that the district court violated his Sixth Amendment right to present a defense when it interrupted and cut short his counsel's closing summation.

We reject these arguments and affirm.

We view the facts in the light most favorable to the government. See Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942) (noting that a criminal verdict "must be sustained if there is substantial evidence, taking the view most favorable to the government, to support it") (superseded by statute on other grounds); see also United States v. Zichettello, 208 F.3d 72, 81 (2d Cir.2000).

This appeal involves purchases and sales of fresh produce at the Hunts Point Terminal Market, the world's largest wholesale produce market. Growers ship their produce to the Hunts Point Market where it is sold to wholesalers. The sales are consummated through purchase contracts negotiated between wholesalers and commercial brokers who act as agents for the growers. Generally, purchase contracts set a price and stipulate a particular required quality of the produce, stated by grade levels, to be met at the time of delivery. The grade level of a load of produce substantially affects the ultimate sale price, and even a slight lowering of grade can result in a sizeable drop in the value of produce. Also, if a load of produce does not meet the contractually stipulated grade level upon delivery, the price of the produce must be renegotiated downward by the parties to reflect this change.

There are two sets of widely-used standards for measuring the grade level of produce. One set is promulgated by the USDA and rates produce according to "quality" and "condition." In this context, "quality" refers to inherent defects, such as the size or shape of the produce, that are constant over time. "Condition" refers to defects, such as decay, discoloration, or bruising, that may worsen with aging. Under the USDA standards, the grade level of a load of produce is determined by the frequency, marked as a percentage, of "quality" and "condition" defects detected in the load.

The alternative set of standards is known as the "good delivery" standards and uses the same frequency-of-defects measure as the USDA standards to determine the grade level of a load of produce. The "good delivery" standards, however, are considered more lenient than the USDA standards because they discount for the almost inevitable deterioration that a load of produce will suffer while being shipped.

If commercial brokers and wholesalers disagree as to the grade level of a load of produce, they have the option of requesting an inspection by the USDA's Agricultural Marketing Service for a nominal fee. When they opt for such an inspection, a USDA produce inspector will examine random samples from the disputed load of produce to determine the frequency of "quality" and "condition" defects among the produce. The inspector will then record the percentage of defects on an official USDA inspection certificate. A USDA inspection certifies the grade level of a load of produce according to only the USDA's standards; it does not apply the unofficial "good delivery" standards. However, parties to contracts using "good delivery" standards rely on the percentage of defects indicated on the USDA inspection certificate to determine whether a load of produce meets the requirements of the particular contract.

At some point, federal officials undertook an investigation of corruption among USDA inspectors at the Hunt's Point Terminal Market. One such inspector, William Cashin, was arrested and thereafter cooperated in the investigation. Cashin and other USDA officials had routinely accepted money from wholesalers at the Hunts Point Market since about 1980. In the course of the scheme, an inspector would receive $50 in cash per inspection from wholesalers. That inspector would kick back a portion of this payoff to his or her supervisor as payment for receiving profitable assignments, i.e., assignments to bribing wholesalers. According to Cashin, the payoffs from the wholesalers were in exchange for downgrading the grade level of a load of produce by recording a higher percentage of defects than were actually observed. When applied to the unofficial "good delivery" standards, a false downgrade allowed the wholesalers to renegotiate downward the price of a load of produce.

As part of Cashin's cooperation with the government, he continued his work as a USDA inspector while also serving as an undercover agent. Cashin was assigned by his supervisor to the produce wholesaler Post & Taback. Alfisi was employed by Post & Taback, and Cashin's supervisor informed Cashin that Alfisi was prepared to make payoffs. After Cashin contacted Alfisi, Alfisi agreed to pay Cashin $50 in cash per inspection performed for the firm. Cashin and Alfisi also devised code phrases by which Alfisi was able to alert Cashin when Alfisi needed "help" with a load of produce. Cashin testified that in exchange for the $50 payments, he would falsely downgrade loads of produce except where they were already "legitimately bad." Many of Cashin's discussions with Alfisi were videotaped and audiotaped. On these recordings, Alfisi gave Cashin money and discussed Cashin's inspection of produce. As a result, Alfisi was arrested and charged with various counts of bribery, paying unlawful gratuities, and conspiracy.

The recordings, as well as Cashin's testimony, were introduced as government evidence at Alfisi's trial. Alfisi did not testify but did present evidence in support of his defense that he did not make the payoffs to obtain false inspection results. Rather, he argued that Cashin and other USDA officials at the market were operating an extortion scheme and that Alfisi was coerced into paying Cashin solely to ensure that Cashin would do his job properly. In that regard, Alfisi offered evidence from three produce brokers that some of Cashin's inspections yielded accurate grade levels. Cashin could not specify at trial whether particular certifications that caused specific loads of produce to fail "good delivery" standards had been falsely downgraded or were "legitimately bad."

After six days of trial and four days of deliberation, the jury convicted Alfisi of seven counts of bribery, six counts of paying unlawful gratuities as a lesser-included offense to bribery, and one count of conspiracy to commit bribery. The district court sentenced Alfisi to a prison term of a year and a day, two years of supervised release, and a fine of $6,000.

a) The Instructions on Bribery and Payment of Unlawful Gratuities

As noted, Alfisi's principal defense at trial was that he was coerced into paying Cashin solely to get the latter to perform accurate inspections. The jury was instructed as to Alfisi's economic coercion defense but rejected it. No claim of error is made as to that instruction, and Alfisi's principal argument on appeal is that the jury was erroneously instructed on the elements of bribery and paying unlawful gratuities.

As we understand Alfisi's argument, he claims first that the instruction given by the district court failed to explain sufficiently the difference between bribery, which requires a quid pro quo element, and paying unlawful gratuities, which does not. Second, he argues that the instruction erroneously allowed the jury to convict him for bribery even if the jury found that the payments were a quid pro quo exchange for Cashin to perform his job faithfully.

"Jury charges are reviewed de novo," United States v. Han, 230 F.3d 560, 565 (2d Cir.2000), and we will not find reversible error unless a charge either failed to inform the jury adequately of the law or misled the jury as to the correct legal rule. See United States v. Doyle, 130 F.3d 523, 535 (2d Cir.1997). We are satisfied that the district court's jury instructions, viewed in their entirety, were correct.

We begin by examining the pertinent elements of bribery and paying unlawful gratuities. The bribery provision, 18 U.S.C. § 201(b)(1)(A), renders it unlawful for any person to "directly or indirectly, corruptly give[], offer[] or promise[] anything of value to any public official ... with intent ... to influence any official act." The payment of an unlawful gratuity involves an act where a person "directly or indirectly gives, offers, or promises anything of value to any public official ... for or because of any official act performed or to be performed." 18 U.S.C. § 201(c)(1)(A). Bribery therefore requires that the payor intend "to influence" an official act "corruptly" while the payment of an unlawful gratuity requires only that the payment be "for or because of" an official act. See United States v. Sun-Diamond Growers of California, 526 U.S. 398, 404, 119 S.Ct. 1402, 143 L.Ed.2d 576 (1999); United States v. Crozier, 987 F.2d 893, 899 (2d Cir.1993); see also United States v. Biaggi, 909 F.2d 662, 684 (2d Cir.1990).

The "corrupt" intent necessary to a bribery conviction is in the nature of a quid pro quo requirement; that is, there must be "a specific intent to give ... something of value in exchange for an official act." Sun-Diamond Growers, 526 U.S. at 404-05, 119 S.Ct. 1402 (emphasis in original). Putting it only slightly differently, bribery involves the giving of value to procure a specific official action from a public official. See United States v. Myers, 692 F.2d 823, 841 (2d Cir.1982). The element of a quid pro quo or a direct exchange is absent from the offense of paying an unlawful gratuity. To commit that offense, it is enough that the payment be a reward for a past official act or made in the hope of obtaining general good will in the payee's performance of official acts off in the future. See Sun-Diamond Growers, 526 U.S. at 405, 119 S.Ct. 1402; Biaggi, 909 F.2d at 684-85; Myers, 692 F.2d at 841.

Turning to the instructions in the present case, the district court initially informed the jury that Alfisi could be convicted of bribery if the government proved beyond a reasonable doubt that he paid money "wilfully, corruptly and with intent to influence an official act to be performed by Inspector Cashin." In defining "corruptly," the district court stated that the term entailed a "specific intent to influence Inspector Cashin's official acts of performing inspections and certifying the condition and grade of fruits and vegetables." The payment of an unlawful gratuity was described as the giving of money "for or because of official acts performed or to be performed by William Cashin." More specifically, the district court told the jury that to prove the payment of an unlawful gratuity, the government must show a link between the payment and some official act, but not corrupt intent as earlier defined.

As we understand the first aspect of Alfisi's argument, he believes that these instructions were not sufficiently specific as to the quid pro quo element of bribery to spell out adequately the difference between that crime and paying unlawful gratuities. In that regard, it is significant that the district court's explanation of bribery and paying unlawful gratuities virtually mirrors the statutory language contained in 18 U.S.C. §§ 201(b)(1)(A), 201(c)(1)(A) and used by many courts to distinguish the two crimes. See, e.g., Sun-Diamond Growers, 526 U.S. at 404-05, 119 S.Ct. 1402; Myers, 692 F.2d at 841; see also United States v. Bonito, 57 F.3d 167, 171 (2d Cir.1995). Where a district court's jury instructions accurately track the language and meaning of the relevant statute, we generally will not find error. See id. However, we need not affirm here on the court's initial instructions, because the court later erased all doubt as to the need for proof of a quid pro quo arrangement to convict Alfisi of bribery.

The jury evidently found the instructions somewhat ambiguous with regard to the difference between bribery and paying unlawful gratuities and asked the court for clarification. In response, the court described bribery as the giving of money to a public official "for or because of an official act [and] with a corrupt intention specifically to influence the outcome of the official act." This instruction clearly set out the quid pro quo requirement, and, accordingly, any ambiguity in the original jury instructions was cured. The events here suggest that it might be well to add similar language in the future for such jury instructions.

Alfisi also argues that he should not be found guilty of bribery if he paid money to Cashin solely to induce him to perform his job faithfully. Put another way, Alfisi contends that the term "corruptly" requires evidence of an intent to procure a violation of the public official's duty. For this reason, he contends, it was not "corrupt" for him to give Cashin money to ensure that Cashin inspect and report accurately on the produce because that was Cashin's legal duty. We are not persuaded.1

First, Alfisi's suggested reading of the bribery statute does not rest comfortably within the statutory language. Subsection (b)(1)(A), the basis for Alfisi's bribery convictions, outlaws payments made with a corrupt intent — to procure a quid pro quo agreement — "to influence any official act."2 It cannot be seriously argued that Alfisi's payments did not fall within that broad language, even if he was paying Cashin solely to make accurate inspections.3

Second, there is no lack of sound legislative purpose in defining bribery to include payments in exchange for an act to which the payor is legally entitled. On the one hand, there is of course a danger of overinclusion in a broad definition, in particular the risk here that marginally culpable conduct by those facing insistent extortionists will be criminalized. That danger is eliminated or at least minimalized, however, by the existence of the economic coercion defense, which the jury rejected in the present case.

On the other hand, a danger of underinclusion inheres in the narrow definition suggested by Alfisi. This is particularly so in cases where the official duties require the exercise of some judgment or discretion. In such cases, if the government must prove beyond a reasonable doubt actual or intended violations of official duties, many highly culpable payments would go underpunished as unlawful gratuities, or unpunished altogether.4

For example, if a party to litigation were to pay a judge money in exchange for a favorable decision, that conduct would — and should — constitute bribery, even if a trier of fact might conclude ex post that the judgment was on the merits legally proper. This principle was at stake and upheld in a decision arising from the most lamentable episode in this court's history. See United States v. Manton, 107 F.2d 834, 845-46 (2d Cir.1939) (rejecting Chief Circuit Judge's defense that payments in exchange for particular decisions were not obstruction of justice where decisions rendered were legally correct). In such a case, the key element of the offense is the intent of the payor to purchase a particular decision "without regard to the merits," id. at 846, as opposed to an impartial judgment.5 The legal merits, or lack thereof, of the judgment rendered is not an element of the offense. See Sun-Diamond Growers, 526 U.S. at 404-05, 119 S.Ct. 1402.

b) Other Issues

Alfisi's other arguments are also meritless. First, he contends that the district court should not have allowed the jury to consider the unlawful gratuity theory as a lesser-included offense of bribery. This view is contrary to our well-established law. See, e.g., United States v. Lasanta, 978 F.2d 1300, 1309 (2d Cir.1992), overruled on other grounds by Florida v. White, 526 U.S. 559, 119 S.Ct. 1555, 143 L.Ed.2d 748 (1999); United States v. Zacher, 586 F.2d 912, 915 (2d Cir.1978). Paying an unlawful gratuity is a subset of bribery that does not include the element of a specific quid quo pro intent. See Sun-Diamond Growers, 526 U.S. at 404, 119 S.Ct. 1402. The district court therefore did not err in allowing the jury to consider the payment of an unlawful gratuity as a lesser-included offense of bribery.6

Alfisi argues, alternatively, that the district court should have permitted the jury to consider also as a lesser offense the misdemeanor of supplementing the salary of an official of the United States under 18 U.S.C. § 209. We disagree. Under Section 209, the illegal payment must be in the nature of a "salary" or "contribution to or supplementation of salary" and "for services as an employee of the United States." In United States v. Raborn, 575 F.2d 688, 691 (9th Cir.1978) the Ninth Circuit held that Section 209 was not a lesser-included offense of Section 201(c), the unlawful gratuities provision, because the "salary" element of Section 209 is not an element of a violation of Section 201. Id. at 691-92. We are less certain than the court in Raborn that a violation of Section 209 cannot be a lesser included offense of the crimes set out in Section 201. For example, some payments labeled by a payor as salaries might reasonably be charged as bribes, leaving a trier of fact to determine whether they were bribes, the lesser offense of unlawful gratuities, or the even lesser offense of illegal supplementations to salary.

Juries must be instructed as to lesser-included offenses either when one simply cannot commit the greater crime without committing the lesser or when the evidence is such as to permit a finding that the lesser, but not the greater, offense had been committed. See Campaneria v. Reid, 891 F.2d 1014, 1022 (2d Cir.1989). When the greater crime can be committed without committing the lesser and when the evidence would support a conviction for the former but not the latter, the lesser-included offense should not go to the jury. That is the circumstance here.

As we read Section 209, the payments in question must bear some or most of the objective indicia of salaries, e.g., being so recorded in business records and so treated for tax purposes by the payor. When accompanied by the requisite corrupt intent, such payments might violate Section 201. However, where the payments bear none of the indicia of salary but are made with the requisite corrupt intent, they violate Section 201 but not Section 209. A violation of Section 201 is not, therefore, inevitably a violation of Section 209. In the present case, moreover, there is no evidence that Alfisi or Post & Taback ever treated the payments to Cashin as salary. All of the evidence indicates that they were in cash and off-book. Even if Section 209 can be a lesser-included offense of Section 201 violations in some cases, therefore, the jury here should not have been instructed on Section 209.

Finally, Alfisi argues that the district court violated his right to present a defense under the Sixth Amendment when it interrupted counsel's closing summation as he was about to state that Alfisi was not guilty of the lesser offense of paying unlawful gratuities. We again disagree. Alfisi was in fact not limited in making any argument to the jury. The court's interruption was prompted by defense counsel's telling the jury that he was raising the unlawful gratuities issue at that time because he would not be allowed to speak after the government's rebuttal summation. In interrupting, the court merely noted that the government had not addressed the unlawful gratuities issue in its main summation, as implied by defense counsel's remarks themselves, and elicited from the prosecutor a concession that he would not argue it in rebuttal. The district court then offered Alfisi's counsel an opportunity to finish his closing remarks with what he initially intended to say. Alfisi's counsel, in response, declined this opportunity. Counsel was not, therefore, prevented from making argument on the point.

For the reasons indicated above, we affirm.