In the summer of 1993, the Sun-Diamond Growers of California wanted two big favors. As secretary of agriculture, Mike Espy was in a position to grant one of the favors and to influence the other. Thereby hangs this tale.
In August 1993, Congress enacted budget legislation directing the secretary of agriculture to consider especially the needs of "small-sized entities" in awarding grants for market promotion. Sun-Diamond Growers is a large agricultural cooperative. Many of its members are small entities.At about the same time, the Environmental Protection Agency was reviewing a proposal to forbid the use of methyl bromide as a pesticide. Some of Sun-Diamond's members used the chemical. They were interested in extending the period before a ban would be imposed. Espy was in a position to reason with the administrator of EPA.
The U.S. Open tennis tournament was just ahead. Richard Douglas, a Sun-Diamond vice president, counted Espy as an old friend. They had attended Howard University together. Douglas had a great idea. He said to his old buddy, "Let's go to New York, watch the Open and have a party. I'll pick up the check."
Thus it came about that Espy and his girlfriend and Douglas and his girlfriend all went off to the Big Apple. Espy's tickets and other expenses amounted to $2,995. These were not the only benefactions. Over a period of several months, Douglas also gave the secretary luggage valued at $2,427, meals worth $665 and a framed print and crystal bowl appraised at $524.
Douglas did not pay personally for any of this. He charged it all to Sun-Diamond as a business expense. A grand jury indicted Sun-Diamond for making illegal gifts to Espy. A federal trial jury found that the gifts were given because of Espy's official position. They were given "for or because of an official act performed or to be performed" by the secretary. Sun-Diamond was guilty as charged.
The U.S. Court of Appeals for the District of Columbia reversed and remanded for a new trial. The court held that, yes, the gifts were given because of Espy's position, but a key element was missing: The government had not proved that Sun-Diamond was trying to influence a specific decision in the future. The magic words are "a specifically identifiable act."
There is no criminal violation of the federal bribery law, said the appellate court, if gifts are given only "with a vague hope of inducing warm feelings toward the donor" or "merely to win an official's generalized sympathy." Something close to a quid pro quo must be proved.
The D.C. Circuit's opinion, written by Circuit Judge Stephen F. Williams, is a bummer. It cuts the guts out of the bribery law. Douglas never on earth would have said to Espy, in the presence of witnesses, "If you will steer a few million bucks to our small growers, and if you'll persuade EPA to take it easy on methyl bromide, in return we will foot the bill for you and your squeeze to watch Pete Sampras in the Open." This is not how lobbying works.
None of the other 12 federal circuits has treated the bribery statutes with such naivete. In the 2nd, 3rd, 5th and 9th Circuits, judges have taken the commonsense view that when lobbyists give gifts to federal officials, they give the gifts in the hope of something in return.
The government has petitioned the Supreme Court to review the Sun-Diamond case. Otherwise a paradoxical situation will be created: In the District of Columbia, where the great bulk of federal lobbying takes place, we will have a lenient standard by which to judge gratuities. But in such states as New York and California, a strict standard will prevail. A friend-of-court brief filed by Public Citizen emphasizes the incongruity:
"Gratuities paid to low-level officials at a regional office would be punished more severely than gratuities paid to their superiors in Washington."