United States v. Mark Alfisi
2002 WL 31245977, 2002 U.S. App. LEXIS 21082, 308 F.3d 144 (2002)
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Rule of Law:
Paying a public official with the specific intent to influence an official act constitutes bribery under 18 U.S.C. § 201(b)(1)(A), even if the act sought is part of the official's lawful duty. The element of corrupt intent is satisfied by the intent to enter into a quid pro quo exchange, regardless of the legality of the official action sought.
Facts:
- Mark Alfisi was an employee of Post & Taback, a produce wholesaler at the Hunts Point Terminal Market.
- The price of produce was determined by its grade level, which could be certified by a United States Department of Agriculture (USDA) inspector.
- A scheme existed at the market where USDA inspectors, including William Cashin, accepted cash payments from wholesalers to falsely downgrade produce, allowing wholesalers to pay less.
- After being arrested, Cashin began cooperating with the government as an undercover agent.
- Alfisi was identified by Cashin's supervisor as someone prepared to make payoffs.
- Alfisi agreed to pay Cashin $50 in cash per inspection and devised code phrases to alert Cashin when he needed 'help' with a load of produce.
- Over a period of time, Alfisi made multiple cash payments to Cashin in exchange for produce inspections, many of which were recorded on audio and video.
- Alfisi's defense was that he was coerced into paying Cashin solely to ensure that Cashin would perform his job properly and provide accurate inspections.
Procedural Posture:
- Mark Alfisi was charged in a federal trial court with bribery, paying unlawful gratuities, and conspiracy.
- At trial, Alfisi presented an economic coercion defense, arguing he paid the official only to ensure the official did his job correctly.
- A jury convicted Alfisi of seven counts of bribery, six counts of paying unlawful gratuities as a lesser-included offense, and one count of conspiracy.
- The district court sentenced Alfisi to a prison term, supervised release, and a fine.
- Alfisi appealed his conviction to the United States Court of Appeals for the Second Circuit, arguing that the jury instructions on bribery were erroneous.
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Issue:
Does paying a public official for the performance of an official act constitute the crime of bribery, even if the payor's intent is only to ensure the official performs their lawful duty correctly?
Opinions:
Majority - Winter, Circuit Judge
Yes, paying a public official for the performance of a specific official act constitutes bribery, even if the act is lawful. The court reasoned that the bribery statute's broad language, which prohibits corruptly giving value to 'influence any official act,' does not require that the act itself be unlawful. The key element distinguishing bribery from a lesser illegal gratuity is the 'quid pro quo' requirement—a specific intent to give something of value in exchange for a specific official act. The court held that the term 'corruptly' is satisfied by this intent to purchase an official act, regardless of its legality. Citing United States v. Manton, the court analogized the situation to paying a judge for a legally correct decision, which would still be bribery because the decision was purchased rather than rendered impartially. The danger of criminalizing victims of extortion is mitigated by the availability of an economic coercion defense, which the jury in Alfisi's case heard and rejected.
Dissenting - Sack, Circuit Judge
No, paying a public official merely to perform a lawful duty does not constitute bribery. The dissent argued that the word 'corruptly' in the bribery statute must be given independent meaning, which requires an intent to secure an unlawful advantage or cause an official to breach a public duty. A person who pays an official to avoid the effects of extortion is not acting with corrupt intent. The majority's interpretation renders the word 'corruptly' as surplusage, as the 'intent to influence' language already covers the quid pro quo element. The dissent further argued that payment of an illegal gratuity is not a necessarily included offense of bribery under the strict 'elements test' of Schmuck v. United States. This is because bribery can be committed by promising a payment to a third party at the official's direction, whereas an illegal gratuity requires the payment be made to the public official, meaning the lesser offense has an element not required by the greater offense.
Analysis:
This decision solidifies a broad interpretation of the federal bribery statute, confirming that the focus is on the corrupt bargain itself, not the legality of the act sought. By defining 'corruptly' as the intent to create a quid pro quo, the court makes it easier to prosecute individuals who pay officials for discretionary acts, even if those acts fall within the official's duties. This ruling reinforces the principle that official actions are not for sale and places the onus on individuals facing extortionate demands from officials to report the conduct rather than pay. The case distinguishes the specific intent for an 'exchange' required for bribery from the more general intent to reward or curry favor associated with an illegal gratuity.
