“If you can’t eat [lobbyists’] food, drink their booze, . . . take their money and then vote against them, you’ve got no business being [in politics],” said Jesse Unruh, a one-time Speaker of the California General Assembly, in the 1960s. That is one way of looking at it. Another way of looking at it comes courtesy of the federal anti-corruption statutes, one of which prohibits an official from accepting things of value “in return for” official acts. A jury found that a state court judge did just that and convicted him of several honest services fraud violations. We affirm.I can't say there's anything extraordinary in Thursday's Sixth Circuit decision upholding former Judge Steven Terry's conviction on public corruption charges, but it does help explain the answer to a question which I'm sure is confusing to many: Given that many people want "something" in exchange for a campaign contribution, when does it cross the line into bribery? Follow me below the fold to find out.
The facts are straightforward, and revolting in just how cheaply Judge Terry could be bought. After having been appointed to fill a judicial vacancy by Gov. Strickland, Judge Terry needed help with his first election to the post:
Having never run for elected office before, Terry sought the help of County Auditor Frank Russo, a presence in Cleveland politics.... Terry knew that Russo was helping him behind the scenes. What Terry did not know was that the FBI was investigating Russo on corruption charges and that federal agents had tapped Russo’s phones. On July 15, 2008, Russo had a phone conversation with a local attorney, Joe O’Malley, about two foreclosure cases on Terry’s docket. O’Malley represented several homeowners in a lawsuit against American Home Bank, and he asked Russo to convince Terry to deny the bank’s motions for summary judgment. Russo promised to call Terry and make sure Terry did what he was “supposed to do” with the cases.Russo pled guilty to an array of charges stemming from his influence over as many as 10 local judges, and has been sentenced to 21+ years in the federal hoosegow.
Two days later, Russo and Terry spoke on the phone. Russo told Terry to deny the motions for summary judgment, and Terry said he would. In the same conversation, the two men also discussed Russo’s attendance at future fundraisers for Terry’s reelection campaign.
That same day, Terry contacted the magistrate judge responsible for the foreclosure cases and told her to deny the motions for summary judgment. Surprised by Terry’s directive, the magistrate passed along the docket so that Terry could deny the motions himself. Terry did just that, even though he never reviewed the case files, never read the motions before denying them and never obtained a recommendation from the magistrate or anyone else (within the court system) about how to rule on the motions. Terry’s collaboration came relatively cheap. Russo’s political action committee donated $500 to Terry’s reelection campaign in July 2007. Russo’s committee purchased around $700 worth of stationery, envelopes and car magnets for Terry’s campaign in July 2007. And Russo had his official staff work for Terry’s campaign during business hours and provided other political help throughout the relevant time period. In exchange for this assistance, Russo explained that he expected Terry “to answer the phone any time I called. And any time I called with a recommendation, or a problem, or a case, I would expect Steve to give it special attention” and “follow through for me.” Russo in other words expected that his political and financial patronage meant Terry “would do what I asked him to do,” including “granting  a motion so it wouldn’t tie [a] case up.”
At trial, Terry was convicted on three counts—conspiracy with Russo to commit mail fraud and honest services fraud, and two counts of honest services fraud by “accepting gifts, payments, and other things of value from Russo and others in exchange for favorable official action"—and sentenced to 5+ years. (Seems low, isn't it? Also worth discussing.)
In appealing his conviction, Terry protested (in part) that the line between a bribe and a legitimate campaign contribution was not clear, and that he didn't receive the contribution in exchange for this specific assistance. To this, Judge Sutton wrote:
Bribery in this setting has long been taken seriously. See, e.g., Herodotus, The Histories 5:25 (describing how, in ancient Persia, a judge who accepted a bribe was flayed alive and his successor was forced to sit on a chair made from the predecessor’s skin). Punishment for the offense today is less severe, but the prohibition remains.Sutton reviews the relevant precedent (and, as always, I'm omitting case citations for your reading comfort) to summarize the relevant principles:
- A public official can commit honest services fraud only by accepting a bribe or a kickback.
- A public official accepts a bribe when he “corruptly . . . receives . . . anything of value . . . in return for . . . being influenced in the performance of any official act.”
- One element of bribery is that the public official must agree that “his official conduct will be controlled by the terms of the promise or the undertaking.”—“The illegal conduct is taking or agreeing to take money for a promise to act in a certain way.”
- This agreement must include a quid pro quo—the receipt of something of value “in exchange for an official act.”
- The agreement between the public official and the person offering the bribe need not spell out which payments control which particular official acts. Rather, “it is sufficient if the public official understood that he or she was expected to exercise some influence on the payor’s behalf as opportunities arose.”
These principles, to be sure, do not spell out what kinds of agreements—and what level of specificity—must exist between the person offering a bribe and the public official receiving it. And some cases debate how “specific,” “express” or “explicit” a quid pro quo must be to violate the bribery, extortion and kickback laws.... So long as a public official agrees that payments will influence an official act, that suffices. What is needed is an agreement, full stop, which can be formal or informal, written or oral. As most bribery agreements will be oral and informal, the question is one of inferences taken from what the participants say, mean and do, all matters that juries are fully equipped to assess. “[M]otives and consequences, not formalities,” are the keys for determining whether a public official entered an agreement to accept a bribe, and the trier of fact is “quite capable of deciding the intent with which words were spoken or actions taken as well as the reasonable construction given to them by theWhich brings us to this case:
official and the payor.”...
That a bribe doubles as a campaign contribution does not by itself insulate it from scrutiny. No doubt, a contribution is more likely to be a duty-free gift than a bribe because a contribution has a legitimate alternative explanation: The donor supports the candidate’s election for all manner of possible reasons. But the prosecution may rebut that alternative explanation, and context may show that an otherwise legitimate contribution is a bribe.
A donor who gives money in the hope of unspecified future assistance does not agree to exchange payments for actions. No bribe thus occurs if the elected official later does something that benefits the donor. On the other hand, if a donor (like Russo) makes a contribution so that an elected official will “do what I asked him to do,” and the official (like Terry) accepts the payment with the same understanding, the donor and the official have formed a corrupt bargain. That agreement marks the difference between a run-of-the-mine contribution and a bribe.Which takes us to the nub of the case:
Terry persists that campaign contributions must meet a higher standard to become a bribe because “the financing of political campaigns depends upon officials accepting contributions from people expecting some kind of benefit in return.” That sentiment may sum up Frank Russo’s donation strategy, but a contribution also may represent nothing more than “a general expression of support for the candidate and his views.” Just as “[n]ot every campaign contribution by a litigant or attorney creates a probability of bias that requires a judge’s recusal,” Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 884 (2009), not every contribution to an elected judge is a bribe. Whatever else [our precedent] may mean, it does not give an elected judge the First Amendment right to sell a case so long as the buyer has not picked out which case at the time of sale.And under these facts, there was more than enough to convict Judge Terry:
Terry’s rulings on the foreclosure cases were, at the very least, highly irregular, and the reality that a tape recording captured the Russo-Terry conversation immediately preceding these rulings did Terry no favor. No subtle winks and nods were needed. Russo straight up asked Terry to deny the bank’s motions for summary judgment in the two cases, and with Terry’s tape-recorded reply (“Got it.” Gov’t Ex. 117), Terry agreed to do just that.Score one for the good guys. Any questions?
And he did, within hours of the conversation. Here is the timeline: Terry and Russo spoke at 11:58 a.m. on July 17; Terry called the magistrate later that afternoon, around 12:30 p.m.; and Terry called Russo at 10:31 a.m. the next morning to confirm he had denied the motions. Without reading the motions, without consulting the case files and without relying on the recommendation of anyone—within the court system—who had read the files, Terry did just what Russo asked. That is not an everyday occurrence in the judicial branch, and a jury could readily infer that Terry’s unusual behavior, along with the other evidence, stemmed from an agreement to use his position as a public official to do Russo’s bidding in return for Russo’s financial, campaign and staff support...
Not every campaign contribution, we recognize, is a bribe in sheep’s clothing. Without anything more, a jury could not reasonably infer that a campaign contribution is a bribe solely because a public official accepts a contribution and later takes an action that benefits a donor. But when a public official acts as a donor’s marionette—by deciding a case to a donor’s benefit immediately after the donor asks him to and without reading anything about the case—a jury can reject legitimate explanations for a contribution and infer that it flowed from a bribery agreement.