United States v. Brewster
COMMENT: The Federal offenses of "bribery" and "gratuities"
described in 18 U.S.C. § 201, and the differences between them, were
first--and perhaps best--described in the landmark case of United States
v. Brewster, 506 F.2d. 62 (D.C. Cir. 1974). This comment will discuss
this significant decision.|
Brewster concerned payments made by a lobbyist to a United
States Senator for the alleged purpose of corruptly influencing the
performance of the Senator's official duties. The payments in question were
made to the Senator in the form of "political contributions" to a political
committee that allegedly had been established to support the Senator's
re-election. The prosecution's position was that this committee was a sham,
and that the payments were either "bribes," or illegal corrupt personal
gifts to the Senator--i.e., "gratuities."
The district judge had attempted to instruct the jury on the
elements of the two related Federal crimes of receiving "bribes" and
receiving illegal "gratuities." The district judge also attempted to
instruct the jury on the difference between these two crimes and the receipt
of legal "political contributions." The jury then convicted the Senator of
receiving "illegal gratuities."
However, the district judge's instructions were not very precise.
This required the D.C. Circuit Court of Appeals to define the three critical
concepts of illegal "bribery," receiving illegal "gratuities," and receiving
legal "political contributions." The Court of Appeals then had to determine
whether the district judge's jury instructions had adequately incorporated
The D.C. Circuit Court's decision held that the Federal crime of
bribery requires that there have been an express corrupt
understanding between the private donor and the public officer donee that
the donee will perform specific official acts in exchange for the payment
(called a quid pro quo). If that condition is present,
the crime of "bribery" is complete regardless of whether the corpus of the
payment went directly to the donee, or whether the corpus went instead to a
"third party" such as a bona fide political committee.
The Court then held that the less serious Federal crime of
"illegal gratuities," which is also addressed by 18 U.S.C. § 201, does
not require proof that a specific understanding existed between the public
and the private parties concerning the corrupt "sale" of an official act
(i.e., a quid pro quo). Rather, the Court held that
this lesser offense is complete if the prosecution proved that the following
three factors were present: 1. the public officer was not entitled to
receive the gift by virtue of the office (s)he held; 2. the motive for the
gift was either to thank the official for a past act, or to curry general
favor with the public officer in the expectation that the public officer
will be better disposed to performing official acts favorable to the donor
in the future; and 3. the public officer was aware of this motive when (s)he
accepted the gift. However, for such gifts to be "gratuity" crimes under
§ 201, the Court held that there must be proof that the corpus of the
gift inured to the personal benefit of the public officer
Finally, the Brewster Court differentiated both of these
crimes from the act of receiving lawful political contributions. It held
that genuine political contributions made to bona fide
political committees representing elected Federal public officers do not
violate either the "bribery" or the "graft" offenses described in
This is because such contributions are not made as part of a quid
pro quo agreement with the public officer, and because a
bona fide political committee--rather than the public
officer--is the true beneficial recipient of the gift.
The Brewster case had a companion: United States v.
Anderson, 509 F.2d 312 (D.C. Cir. 1974). Anderson involved the
prosecution of the lobbyist who had sought to corrupt Senator Brewster. In
Anderson, the jury had convicted the lobbyist of bribery, finding
that he had expected a specific act in exchange for the money he had given
to the Senator's campaign committee. The D.C.Circuit upheld this verdict,
notwithstanding that the jury in Brewster had convicted the Senator
only of the less serious offense of receiving a gratuity. This companion
case highlights the fact that the offense of gratuities can be--and often
is--a lesser included offense within the offense of bribery, and that the
two parties to a corrupt transaction may act with differing levels of
corrupt intent, allowing properly instructed juries to convict one party to
a corrupt transaction of the crime of bribery, while convicting the other
party of the lesser offense of gratuities.
AUSAs are encouraged to read and familiarize themselves with these
two critically important companion cases before initiating a bribery or a
gratuities case under 18 U.S.C. § 201.
PRACTICE TIP: As explained in Brewster and Anderson,
and as demonstrated in the chart in this Manual
at 2043, the offense of soliciting, giving, accepting and receiving
a gratuity is a lesser included offense within the greater crime of
soliciting, giving, accepting or receiving a bribe.
[cited in USAM 9-85.101]