In the Courts

First Circuit Breaks Ranks with Other Circuits, Holding That 18 U.S.C. ' 666 Does Not Apply to Gratuities

On June 26, 2013, the United States Court of Appeals for the First Circuit considered, as a matter of first impression within the Circuit, “whether ' 666 criminalizes gratuities in addition to bribes.” See United States v. Fernandez, Nos. 12-1289, 12-1290, 2013 WL 3215461, at *14 (1st Cir. June 26, 2013). After a survey of 18 U.S.C. ' 666's legislative history, the First Circuit concluded “that gratuities are not criminalized under ' 666.” Id. at *20.

The case came to the First Circuit after a jury convicted Hector Martinez Maldonado, a former Puerto Rican Senator, and Juan Bravo Fernandez (“Bravo”), the owner of Puerto Rico's largest private security firm, of “unlawfully exchanging a trip to Las Vegas to attend a prize fight for favorable action on legislation.” Id. at *1. The First Circuit concluded that
' 666 did not prohibit gratuities and, thus, that the conviction could not be sustained as “the jury reasonably could have found that the trip was a reward for ' prior conduct, rather than the quid pro quo for Martinez's later support of the bills,” id. at *14.

Explaining this decision, the court stated that Congress adapted 18 U.S.C. ' 666 from 18 U.S.C. ' 201, which criminalizes both “bribes and gratuities on the part of federal officials,” and separates the offenses into different subsections. Id. at *15 (emphasis added). The court did acknowledge the circuit split as to whether ' 666 prohibits gratuities; however, the court decided to break ranks with contrary precedent from its sister circuits, finding that much of the language of today's ' 666 tracks with ' 201's bribery prohibition, rather than ' 201's gratuity prohibition. See id. at *15-17. Key to the court's decision was its interpretation of the term “reward” in ' 666, concluding that “the word 'reward' does not create a separate gratuity offense in ' 666, but rather ' it merely clarifies 'that a bribe can be promised before, but paid after, the official's action on the payor's behalf.'” Id. at *18.

This differs markedly from some other circuits that have found that reward under ' 666 may also apply “when a payor intends to reward the official's past conduct,” marking a significant circuit split regarding the proper interpretation the statute. See id. at *17 (emphasis omitted).

In the Courts and Business Crimes Hotline were written by Timothy Geverd and Holly Trogdon, respectively. Both were summer associates at Kirkland & Ellis LLP, Washington, DC.

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First Circuit Breaks Ranks with Other Circuits, Holding That 18 U.S.C. ' 666 Does Not Apply to Gratuities

On June 26, 2013, the United States Court of Appeals for the First Circuit considered, as a matter of first impression within the Circuit, “whether ' 666 criminalizes gratuities in addition to bribes.” See United States v. Fernandez, Nos. 12-1289, 12-1290, 2013 WL 3215461, at *14 (1st Cir. June 26, 2013). After a survey of 18 U.S.C. ' 666's legislative history, the First Circuit concluded “that gratuities are not criminalized under ' 666.” Id. at *20.

The case came to the First Circuit after a jury convicted Hector Martinez Maldonado, a former Puerto Rican Senator, and Juan Bravo Fernandez (“Bravo”), the owner of Puerto Rico's largest private security firm, of “unlawfully exchanging a trip to Las Vegas to attend a prize fight for favorable action on legislation.” Id. at *1. The First Circuit concluded that
' 666 did not prohibit gratuities and, thus, that the conviction could not be sustained as “the jury reasonably could have found that the trip was a reward for ' prior conduct, rather than the quid pro quo for Martinez's later support of the bills,” id. at *14.

Explaining this decision, the court stated that Congress adapted 18 U.S.C. ' 666 from 18 U.S.C. ' 201, which criminalizes both “bribes and gratuities on the part of federal officials,” and separates the offenses into different subsections. Id. at *15 (emphasis added). The court did acknowledge the circuit split as to whether ' 666 prohibits gratuities; however, the court decided to break ranks with contrary precedent from its sister circuits, finding that much of the language of today's ' 666 tracks with ' 201's bribery prohibition, rather than ' 201's gratuity prohibition. See id. at *15-17. Key to the court's decision was its interpretation of the term “reward” in ' 666, concluding that “the word 'reward' does not create a separate gratuity offense in ' 666, but rather ' it merely clarifies 'that a bribe can be promised before, but paid after, the official's action on the payor's behalf.'” Id. at *18.

This differs markedly from some other circuits that have found that reward under ' 666 may also apply “when a payor intends to reward the official's past conduct,” marking a significant circuit split regarding the proper interpretation the statute. See id. at *17 (emphasis omitted).

In the Courts and Business Crimes Hotline were written by Timothy Geverd and Holly Trogdon, respectively. Both were summer associates at Kirkland & Ellis LLP, Washington, DC.

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