John G. Roberts, Jr.: We will hear argument first this morning in Case 23-108, Snyder versus United States. Ms. Blatt.
Lisa S. Blatt: Mr. Chief Justice, and may it please the Court: Section 666 applies to 19 million state, local, and tribal officials and anyone else whose employer receives federal benefits, including 14 million Medicare-funded healthcare workers.
Lisa S. Blatt: Congress did not plausibly subject all of these people to 10 years in prison just for accepting gifts, especially when federal officials face only two years for accepting gifts under 201(c). 666 punishes corruptly receiving anything of value intending to be influenced or rewarded. "Corruptly intending to be influenced" covers classic bribes where officials get upfront payments in exchange for official conduct, while "corruptly intending to be rewarded" covers bribes paid after the fact and to officials who aren't actually influenced. The government argues "corruptly" under 666 means wrongful, immoral, depraved, or evil.
Lisa S. Blatt: But the government tried this case and countless others on the theory that "corruptly" just meant knowingly.
Lisa S. Blatt: Regardless, the government's new definition is implausible and stunningly vague. No gratuity statute, that's none whatsoever, uses the word "corruptly" and for good reason.
Lisa S. Blatt: The government can't tell you what gifts are corrupt -- are corrupt.
Lisa S. Blatt: What gift is too much for the doctor who saves your life? Is pornography an immoral gift? The federalism and due process implications of the government's view are gob-smacking.
Lisa S. Blatt: All states prohibit bribery, but localities and states take an -- infinite approaches to gifts and outside compensation. Affirmance would let federal prosecutors second-guess all of these judgments. Meanwhile, state and local officials will have no way of knowing what gift would subject them to 10 years in prison.
Lisa S. Blatt: Remember, extensive guidance tells federal employees that accepting anything over $20 is a crime. It would be downright Kafkaesque to subject state and local officials to a standardless and severe regime where federal interests are at their weakest. I welcome questions.
John G. Roberts, Jr.: Ms. Blatt, if I find a lost pet and return it to the owner and the owner's grateful and gives me $10, that's a reward, right, even though nothing else happened in advance between the owner and -- and me?
Lisa S. Blatt: So, yes, divorced from, you know, a crime that makes it a corrupt -- corruptly giving something of value intending to be rewarded, the word "reward," just divorced from text of a statute, context, common sense at least in this case, sure, "reward" can mean both a bribery and -- a quid pro quo bribery and a gratuity. And we think it's very significant in all the statutes that use "reward" to mean gratuities, they're vastly different in four respects here.
Lisa S. Blatt: They all say, when "reward" is used to mean gratuities -- these are cited at page 31 of our brief.
Lisa S. Blatt: They make clear that no quid pro quo payment is required.
Lisa S. Blatt: They say you can't receive any authorized fee or compensation. Also, there are 13 gratuity statutes identified in the brief.
Lisa S. Blatt: Virtually all of them have no express mens rea whatsoever.
Lisa S. Blatt: They have vastly lower penalties.
Lisa S. Blatt: And they almost exclusively apply to federal officials.
Lisa S. Blatt: And I think that just highlights that gratuity statutes are generally prophylactic rules where the government has a direct interest. And at least here, to use "corruptly" in a gratuity statute would make this statute a unicorn.
Lisa S. Blatt: It literally has no accepted meaning. It doesn't exist in any other statute.
Lisa S. Blatt: I don't think anyone knows what a corrupt gratuity is.
Elena Kagan: But if -- I -- I would think that demanding mens rea would cut against you.
Elena Kagan: In other words, if you add in demanding mens rea to the statute, one will have less fear that the statute is going to be applied in an overbroad way.
Elena Kagan: So you're using that on your side, but I would think that it's really the government's argument.
Lisa S. Blatt: No.
Lisa S. Blatt: Government -- mens rea can't help you if it's standardless and has no -- no meaning and just leaves it up to a jury and, I guess, federal prosecutors.
Elena Kagan: So your view is dependent on the vagueness of the standard? If we just knew that it was a serious, a demanding mens rea standard, then it would cut for the government?
Lisa S. Blatt: No, it's not just that it's vague.
Lisa S. Blatt: It's also unheard of and ahistorical.
Lisa S. Blatt: And I just don't think the government's story holds up.
Lisa S. Blatt: The government's story is, hey, in 1986, we had this gratuity language when we add the word "corruptly." But that, of course, is not true.
Lisa S. Blatt: You had a statute that was identical to Section 201(c) that was a gratuity statute.
Lisa S. Blatt: And the government -- the Congress did not just sneak in the word "corrupt." They deleted that statute in toto, hook, line, and sinker, and ad ded "corruptly intending to be influenced, rewarded" in a way that looks much more like the 201(b) bribery statute.
Sonia Sotomayor: I'm sorry, I thought the original 666 covered gratuities, and what Congress then did is, instead of copying the bribery statute, 201(a), it decided to copy the gratuity statute, 201(c). So, if they intended bribery, why didn't they just copy the statute that meant bribery?
Lisa S. Blatt: So, in 1984, the statute read you can't give or accept anything for or because official conduct.
Lisa S. Blatt: And that is the gratuity statute.
Lisa S. Blatt: That language got deleted in toto.
Sonia Sotomayor: Well, but that's the point.
Sonia Sotomayor: Why not borrow then the language from 201(a) -- from 201(b) -- I'm sorry -- instead --
Lisa S. Blatt: 201(b).
Sonia Sotomayor: -- (b) instead of (c).
Sonia Sotomayor: I said (a), but I meant (b).
Lisa S. Blatt: And our point is it looks a lot like, more 201(b), which is -- has the "corruptly intending to be influenced." And I just don't think the story is that adding --
Sonia Sotomayor: But they had that language, but they chose somet hing broader and different.
Sonia Sotomayor: And so I don't understand.
Lisa S. Blatt: I don't think it's broader at all, and let me see if I can be clear on this.
Lisa S. Blatt: 201(b) is very different.
Lisa S. Blatt: The Court in McDonnell said you can actually be convicted if you don't have any intent to be influenced under bribery. But, under this statute, 666, the government has --
Sonia Sotomayor: They didn't have McDonnell in front of them, so I don't know what that has to do with anything.
Lisa S. Blatt: Well, let me -- let --
Sonia Sotomayor: They -- they had clear bribery language in 201(b), and, instead, they chose something closer to the gratuity language of 201(c).
Lisa S. Blatt: So it doesn't look anything like 201(c) and every -- nor any other gratuity statute in the U.S. Code.
Sonia Sotomayor: All right.
Sonia Sotomayor: Can I go to the disparity that you were talking about?
Lisa S. Blatt: Mm-hmm.
Sonia Sotomayor: 666, when it was clearly a gratuity, had 10 -year statute -- penalty.
Sonia Sotomayor: So it was always disparate from other statutes involving federal officers. So what do I take from that?
Lisa S. Blatt: Well --
Sonia Sotomayor: Meaning you say that Congress couldn't have intended to treat state from federal officials differently.
Sonia Sotomayor: But it always did.
Lisa S. Blatt: Well, all --
Sonia Sotomayor: It did before it amended 666.
Lisa S. Blatt: I wouldn't consider two years always.
Lisa S. Blatt: It was a short-lived statute that was immediately deleted.
Lisa S. Blatt: So -- and I don't even know if the government had any prosecutions. But if I could just finish my answer on what I don't think the government has a response to, if a jury finds that a official was not influenced because he would have taken the same vote anyway, the jury has to acquit if the statute had just said "intending to be influenced." And so "intending to be rewarded" is absolutely critical in this statute, and that is not the case of the federal bribery statute. This statute actually requires either an intent to be influenced or an intent to be rewarded. The other thing I can say about the disparate penalties is that no other statute in the U.S. Code puts gratuity on par with bribery. And the government's -- under the government's view, you'd never ever have to either charge, much less prove, an intent to influence because, under their view, any payment that is an intent to reward under their reading renders any need to prove intent to influence completely superfluous, irrelevant, and unnecessary. And that is an outlier in -- in history and in the U.S. Code.
Ketanji Brown Jackson: Can I ask you --
Sonia Sotomayor: But --
Ketanji Brown Jackson: -- why -- oh, sorry.
Sonia Sotomayor: I'm sorry, go ahead.
Ketanji Brown Jackson: Why do you keep saying that this doesn't look like anything else? I'm looking at 215.
Lisa S. Blatt: Mm-hmm.
Ketanji Brown Jackson: And it uses almost exactly the same language.
Ketanji Brown Jackson: It has "corrupt," "corruptly." It has "giving, offering, promising anything of value to a person with the intent to influence or reward." When I look at the legislative history of 215, it says -- or 666 says that it's modeled off of 215.
Ketanji Brown Jackson: And 215's legislative history says it includes gratuities. So I'm just trying to understand what you mean about this not looking like anything else.
Lisa S. Blatt: Of course.
Lisa S. Blatt: Let me take on Section -- Section 215.
Lisa S. Blatt: So you're -- you're right, the -- the -- the wording is quite identical, and the only court to address the issue has held 215 is a bribery statute. But, on the legislative history, to be sure, a footnote in the legislative history of Section 215 mentions that that statute applies to gratuity. But, if we're going to rely on legislative history, I'll take the footnote in the legislative history of Section 666 itself. When it references the Section 215 statute, it only refers to bribery. But now we're really going to be worrying over footnotes in legislative history, I'll -- I'll take ours. But the -- the other thing I would say about 215, which is extraordinary, is that there is a provision, I think it's 215(d), that says -- orders federal agencies to give guidance. So every federal agency has issued extensive guidance to bank officials.
Lisa S. Blatt: There's massive guidance, of course, to federal officials.
Lisa S. Blatt: There is no such guidance, and had the government issued guidance, it would just make the federalism implications all the more bizarre. So bank officials are told here's what you can and cannot do, and there's no -
Ketanji Brown Jackson: And are they told you can -- you can accept gratuities in the 215 context?
Lisa S. Blatt: The -- the guidelines which were promulgated after Section 666 was passed, but, again, I --
Ketanji Brown Jackson: No, I'm sorry, what's the answer to --
Lisa S. Blatt: The guidelines do --
Ketanji Brown Jackson: -- can they accept --
Lisa S. Blatt: -- the guidelines do assume that 215 applies to gratuities.
Ketanji Brown Jackson: Okay.
Ketanji Brown Jackson: And the --
Lisa S. Blatt: And that is the government's --
Ketanji Brown Jackson: -- the language is identical to 666, correct?
Lisa S. Blatt: Correct.
Lisa S. Blatt: But the only court -- no court has held that Section 215 applies to gratuities.
Lisa S. Blatt: It's got a 30-year sentence.
Lisa S. Blatt: And even if you did think it did, I would say the title at least mentions gifts. The legislative history says it means gifts. And there is a provision for guidance.
Lisa S. Blatt: None of those three things are true under Section 6 66. The title says bribery.
Lisa S. Blatt: The legislative history only mentions bribery.
Lisa S. Blatt: And there's no guidance.
Lisa S. Blatt: And it is truly unthinkable -- unthinkable that officials would not know what type of -- of -- of gift is corrupt.
Lisa S. Blatt: They -- even a gift basket, I don't know where on the Harry & David menu the gift becomes corrupt.
Lisa S. Blatt: It --
Ketanji Brown Jackson: Well, that's -- go ahead.
Lisa S. Blatt: It ends at 319, it starts at 1999.
Amy Coney Barrett: Ms. Blatt, can I ask you, so you're referencing some of the horribles and your brief points out, you know, the Harry & David gift baskets, the -- the -- the tip, the gift card to your garbage collector, that sort of thing. Can you point to any actual prosecutions or convictions even that have pursued th ose kinds of --
Lisa S. Blatt: Just -- just two --
Amy Coney Barrett: -- troubling --
Lisa S. Blatt: -- in our reply brief. And I don't know if they reached a conviction. But somebody was charged for soliciting donations to a sports league, and then another defendant was charged for having -- having plaques and luncheon for female judges and that was considered it. But this Court -- I mean, there's just legions of cases that say you're not going to interpret a statute with crazy breadth on the trust me assumption of federal prosecutors.
Sonia Sotomayor: Doesn't the --
Amy Coney Barrett: And what about -- oh.
Sonia Sotomayor: I'm sorry.
Amy Coney Barrett: Just one other question.
Amy Coney Barrett: So, you know, federalism breadth aside, you also point out that for private entities that take federal funds -- and this would also channel into them -- apart from the pandemic money, are there other reasons to think that federal funds would pull private entities into this?
Lisa S. Blatt: Yes.
Lisa S. Blatt: You held in Fischer that it covers Medicare, which is one of the largest industries in this country.
Lisa S. Blatt: It covers every nurse, doctor, orderly, anyone in the hospital.
Amy Coney Barrett: But restaurants and some of the -- yes, hospitals, of course.
Lisa S. Blatt: It covers any grantee, and I think we gave in the brief, literally Google government grantees, and there's just tons and tons, Lockheed, lobster --
Sonia Sotomayor: I'm sorry, doesn't the nexus requirement get rid of most of this? The tax collector, the person who just says thank you generally.
Lisa S. Blatt: I -- I don't --
Sonia Sotomayor: The -- the nexus requirement says that the gratuity must be "in connection with any business transaction or series of transactions of a covered" -- "covered entity involving anything of value of 5,000 or more."
Lisa S. Blatt: Right.
Sonia Sotomayor: The trash collectors, not having anything to do with 5,000 or the contract itself.
Lisa S. Blatt: The doctor who removes your wart, fine.
Lisa S. Blatt: But the doctor who takes your gallbladder out or does your face, like my plastic surgeon, no, that's worth over 5,000. (Laughter.)
Lisa S. Blatt: Well, no, seriously --
Neil Gorsuch: I -- I -- I -- I --
Lisa S. Blatt: -- I'm not even joking. Snow removal is worth over 5,000.
Lisa S. Blatt: Writing a letter for your kid to get into college, that's priceless.
Lisa S. Blatt: There are -- I could go on and on and on.
Lisa S. Blatt: The --
Sonia Sotomayor: But it still has to have a nexus to that contract.
Lisa S. Blatt: Yes, and people give gifts all the time to nurses after an operation.
Lisa S. Blatt: That is a crime.
Elena Kagan: Do -- do you think --
Neil Gorsuch: I -- I -- I -- I'm sorry.
Elena Kagan: Go ahead.
Neil Gorsuch: Sure.
Neil Gorsuch: Okay.
Neil Gorsuch: I had thought that the government had actually pursued prosecutions below on the theory that the $5,000 in connection with business requirement could be satisfied by pointing, for example, to a police officer's salary was more than $5,000.
Lisa S. Blatt: The government took an outrageous view, expansively, which is why they used 666 over 201, because they didn't think it had to be linked to an official action.
Lisa S. Blatt: But they did fancy footwork in their brief and says no, no, we won't do that anymore, so we'll keep it closer to 201.
Lisa S. Blatt: But, no, they've -- that's why they love 666.
Neil Gorsuch: I thought there was, in fact, an affirmed conviction in the Seventh Circuit in United States versus Robinson along just that point.
Lisa S. Blatt: You can ask them, because I think they're a little cagey on how much they will give on what a business or transaction is. But, even assuming it's tight, it doesn't take that much to do snow removal that's worth over 5,000 or the police officer who helps your -- you know, find your kid who's kidnapped. This is like -- government officials and healthcare workers do stuff worth over $5,000 every day, every second, every minute.
Neil Gorsuch: Can I --
Elena Kagan: These --
Neil Gorsuch: No, your turn now.
Elena Kagan: Go ahead.
Neil Gorsuch: No, please.
Elena Kagan: Do you think that the horribles also apply to the bribery side of the statute? I mean, what strikes me about this statute is the number of people that it covers. But you can imagine all of your horribles being done on the bribery side.
Elena Kagan: You know, I give the orthodontist for my kids hockey tickets so that -- and we kind of -- it is a quid pro quo, so that, you know, my kid gets the best appointment or something like that. I mean, you can imagine a whole lot of cases where, even though there's an explicit bribe, it also seems like, really, we're criminalizing that? So I'm just wondering whether the horribles only apply to gratuities as opposed to there are horribles in this statute because of the kinds of people it applies to.
Lisa S. Blatt: No, they -- no, I disagree, Justice Kagan, for this reason.
Lisa S. Blatt: Under Section 201, there's a 15-year sentence for bribery.
Lisa S. Blatt: Government hates to have to prove a quid pro quo.
Lisa S. Blatt: And there's a two-year sentence for gratuity, where it's really easy to get a water bottle plus a mug and it's over $20. There's vast, vast difference. The government -- if it's that no big deal, let the government just prove quid pro quo.
Lisa S. Blatt: Just let them.
Lisa S. Blatt: It's much more damaging. The government has a direct interest.
Lisa S. Blatt: If you have to prove there was an influence on your official conduct, at least the government says it impacts the federal program. Here, they have six different ways where they're defining "corrupt:" if it's not benign, if it was against the employer's rules, if it's against common sense rules, if you're conscious of wrongdoing, which I had no ide a what it means, if it could skew your official decisionmaking.
Lisa S. Blatt: It is very different to say -- and I do think the fact that all states prohibit bribery cold and not all states -- some employers in some localities allow gifts.
Ketanji Brown Jackson: But, Ms.
Ketanji Brown Jackson: --
Lisa S. Blatt: They just do --
Brett M. Kavanaugh: How would you --
Lisa S. Blatt: -- because they're not corrupt --
Brett M. Kavanaugh: How would you --
Lisa S. Blatt: -- unless it's prophylactic.
Brett M. Kavanaugh: Sorry.
Brett M. Kavanaugh: How would you define "corruptly" if you had to in this particular provision?
Lisa S. Blatt: Well, we would win if it was defined under half if it violated your employer rules, common sense ethical rules, or consciousness of wrongdoing. I don't know what "benign" means.
Lisa S. Blatt: I don't know what "immoral" means.
Lisa S. Blatt: I mean, the government says we waived, but they don't tell us what we should have --
Neil Gorsuch: Now --
Lisa S. Blatt: -- what we should have asked for.
Lisa S. Blatt: They never spelled out what that instruction would look like.
Neil Gorsuch: -- I -- I -- I --
Brett M. Kavanaugh: Well, just --
Neil Gorsuch: No, I'm sorry, please.
Brett M. Kavanaugh: Just on that, I thought you did ask for jury instructions that would make clear that an after -the -action agreement --
Lisa S. Blatt: A hundred percent.
Brett M. Kavanaugh: -- would require acquittal.
Lisa S. Blatt: J-18 objects to the definition of "corruptly" on JA-28 by saying, very clearly laying out the sine qua non of bribery is that quid pro quo payment and the jury would have to convict if it only found a gratuity. What the government is trying to say is that we should have said something other than the way the government's prosecuted every other 666 case on just a knowing theory and they've said six different ways what that would look like. And if you charge -- again, I'm sure you will ask them what the jury should be charged what common sense ethical rules are.
Lisa S. Blatt: I mean, the restaurant example alone, I don't know where it's -- I'm pretty sure Chipotle would be okay, Inn at Little Washington wouldn't, but ask them about the Cheesecake Factory. (Laughter.)
Neil Gorsuch: Well, I'm not going to ask them about the Cheesecake Factory. Somebody else may.
Lisa S. Blatt: Okay.
Neil Gorsuch: But -- but I'm going to ask you a little bit more about corruptly.
Lisa S. Blatt: Okay.
Neil Gorsuch: -- and -- and the mens rea that you think it should import here, putting aside the jury instructions and the debate over forfeiture. You mentioned consci ousness of wrongdoing, which the Court mentioned also in Arthur Andersen if I recall.
Lisa S. Blatt: Mm-hmm.
Neil Gorsuch: And that suggests, I think, that you have to know that it's unlawful. It's one of those rare statutes --
Lisa S. Blatt: And willful.
Neil Gorsuch: -- where perhaps ignorance of the law is a defense, if you will. What do you think of that?
Lisa S. Blatt: So, no, that's some other case. "Corruptly" has a very, very specific definition with bribery.
Lisa S. Blatt: It cannot possibly mean one thing for bribery and something else in this statute.
Lisa S. Blatt: It clearly means quid pro quo. "Bribery" has always had both common law, historic, 201. "Corruptly" means quid pro quo in this context.
Lisa S. Blatt: I think, when you have Arthur Andersen, official proceedings, document destruction, what have you, "corruptly" can mean all kinds of things.
Sonia Sotomayor: Ms. Blatt, it makes no sense what you're saying to me.
Sonia Sotomayor: Here's a case in which someone is -- that's the allegation -- demanding money, gets it basically for no services, spends his time giving two or three different reasons and services that he performed, which he didn't, and there's a series of meetings or phone calls, texts, et cetera, before the second contract is awarded between these people. At some point, can't a jury see that as a demand for payment for services?
Lisa S. Blatt: Well --
Sonia Sotomayor: And you're giving no definition that would cover that kind of behavior.
Lisa S. Blatt: So, first of all --
Sonia Sotomayor: I think that's different than the situation the Chief posited. I find someone's wallet and I tell them: I'm not giving it up to you unless I get a tip.
Lisa S. Blatt: Yeah.
Lisa S. Blatt: So --
Sonia Sotomayor: I want half the money in the wallet.
Lisa S. Blatt: -- it's none of the federal government's business if a local official is doing nothing wrong with state and local laws and complied with all local laws. Most of their brief has nothing to do with their theory.
Lisa S. Blatt: Their brief is somehow there was improper steering by his buddy, who's now the head of sanitation and trash, which is a little bit ironic.
Lisa S. Blatt: But their theory is of --
Sonia Sotomayor: But you -- you --
Lisa S. Blatt: Their --
Sonia Sotomayor: -- you are suggesting that the federal government can't say there is something wrong with demanding payment after the fact for an official act.
Lisa S. Blatt: That -- the --- the -- the government has not -- sorry.
Lisa S. Blatt: Congress has not criminalized gratuity against state and local and tribal officials.
Sonia Sotomayor: You are --
Lisa S. Blatt: Absolutely.
Sonia Sotomayor: Answer my question, yes or no?
Lisa S. Blatt: Yes, it's not a crime.
Sonia Sotomayor: It's not a crime --
Lisa S. Blatt: Not a federal crime.
Sonia Sotomayor: -- for state officials who run around the country with respect to federal contracts and say: I voted for X, now pay me.
Lisa S. Blatt: It's not a federal contract, but if there's bribery --
Sonia Sotomayor: For -- I'm sorry -- a state contract.
Lisa S. Blatt: If -- if the government thinks there was a quid pro quo, which they did here, they did allege and try to argue to the jury there was bribery, but you're making it a case where --
Sonia Sotomayor: No, I'm making a -- I'm asking a simple question.
Sonia Sotomayor: It's all right according to you or it's wrong for federal law to attempt to take the situation which is alleged here that demanding payment for official acts --
Lisa S. Blatt: Well, I --
Sonia Sotomayor: -- is wrong.
Lisa S. Blatt: So you keep saying demanding.
Lisa S. Blatt: If he had asked for to go fund -- to please give me my go fund money for my kid's cancer surgery, I think, in your view, that's a crime.
Lisa S. Blatt: And I'm saying Congress could not have possibly intended --
Sonia Sotomayor: Well, I'm not sure what --
Lisa S. Blatt: -- put that official in 10 years.
Samuel A. Alito, Jr.: Well, is the -- I mean, is the --
Lisa S. Blatt: But that's the problem with your example.
Samuel A. Alito, Jr.: -- is the question whether it would be wrong for Congress to criminalize that or whether, in fact, Congress has criminalized it?
Lisa S. Blatt: Yes.
Lisa S. Blatt: It's the latter.
Samuel A. Alito, Jr.: It's the latter.
Samuel A. Alito, Jr.: So, okay.
Ketanji Brown Jackson: And why doesn't the language cover -- I mean, I understand you -- we've -- we're all thinking about this in terms of gratuities, and that opens the door to all of the, you know, relatively benign examples that you bring up, you know, when someone's just sort of showing thanks for doing services. But the statute does not use the word "gratuities." In fact, the statute uses terminology that's very similar to what Justice Sotomayor just said, right? "Someone who corruptly solicits or demands" -- and I'm skipping here -- "anything of value intending to be rewarded."
Lisa S. Blatt: And the --
Ketanji Brown Jackson: And that -- and those are the facts that the government is at least alleging in this case.
Lisa S. Blatt: And "corruptly" is -- is completely a foreign concept to "gratuity," and it's very familiar --
Ketanji Brown Jackson: No, but I'm not --
Lisa S. Blatt: -- to bribery.
Ketanji Brown Jackson: Set aside "gratuity." I'm just looking at the statute. Why is -- aren't the facts that the government alleges here fitting entirely with the statement, the text of this statute?
Lisa S. Blatt: Because the plain language of "reward" can mean bribes.
Lisa S. Blatt: And it has -- it has been used that --
Ketanji Brown Jackson: And it can't mean after the fact seeking a payment for something that you've done officially?
Lisa S. Blatt: "Rewarding" can plainly mean bribes to officials who aren't actually influenced.
Lisa S. Blatt: You give me money and either you're never going to take the vote or you couldn't take it anyway.
Lisa S. Blatt: It also applies to after-the-fact payments. And if I can just say one other thing because you say on reward about "corrupt," a thousand dollar bottle of wine.
Ketanji Brown Jackson: No, but that's a gratuity.
Lisa S. Blatt: A $2,000 bottle of wine.
Ketanji Brown Jackson: But -- but I guess, if the person is demanding it as a result of something that they've done --
Lisa S. Blatt: It applies to givers --
Ketanji Brown Jackson: -- it would be the same scenario.
Lisa S. Blatt: -- equally.
Lisa S. Blatt: It's the same statute that applies to the givers.
Lisa S. Blatt: So you and anyone else in this room who gives an expensive bottle of wine to a nurse in connection with --
Ketanji Brown Jackson: Is she demanding it?
Lisa S. Blatt: -- a $5,000 surgery --
Ketanji Brown Jackson: Is she demanding it for having done something in -- to me or my family?
Lisa S. Blatt: You have to divorce 601 -- the giver to the taker.
Lisa S. Blatt: I mean, yeah, the giver to the taker.
Lisa S. Blatt: It's the exact same wording.
Lisa S. Blatt: It applies to anyone who gives with an intent to reward.
Lisa S. Blatt: That's the plain language.
Lisa S. Blatt: And I think, in your view, you'd have to draw a line between the two-buck chuck at Trader Joe's and the wine that goes up to 500,000. And I don't know where the government's line is.
Lisa S. Blatt: There is no drop -down menu on Amazon for mens rea.
Lisa S. Blatt: People -- there's just not -- there is no gratuity -- there are 13 gratuity statutes.
Lisa S. Blatt: None of them are like this. They have no mens rea because they're just prophylactic bright-line rules.
Lisa S. Blatt: You can't get that compensation, which is why that is the federal rule. You get even a dollar, it is a crime regardless of mens rea.
Lisa S. Blatt: And there are 11,000 pages of guidance to make sure that when you're a federal employee you don't go to jail for two years.
Lisa S. Blatt: I don't know what every single person --
Ketanji Brown Jackson: So what is "rewarded" doing in this statute? Because, basically, you've defined it as bribery.
Ketanji Brown Jackson: And we have "intending to in" -- "to be influenced." So what is the work of "rewarded"?
Lisa S. Blatt: Two critical things.
Lisa S. Blatt: And the government has a response -- it's not a good one -- on one of them.
Lisa S. Blatt: They have no response to my first point.
Lisa S. Blatt: It takes the issue of timing and causation off the table, and where they don't have a response is on causation. The statute, if it just said "intending to be influenced," a jury would have to acquit if the jury found the person wasn't influenced.
Lisa S. Blatt: Like a gun -- I don't know, take a pro-gun or an anti-gun person who says --
Ketanji Brown Jackson: I don't understand that.
Ketanji Brown Jackson: It says "intending to be influenced." It doesn't say you have to actually have been influenced.
Ketanji Brown Jackson: So --
Lisa S. Blatt: Well --
Ketanji Brown Jackson: -- I mean, isn't a bribery you're intended to -- you're intending to be influenced? Okay.
Lisa S. Blatt: No, if the jury -- if he says, I wasn't influenced, I would have taken the vote anyway, the jury would have to acquit. I wasn't influenced.
Lisa S. Blatt: I didn't even intend to be influenced because I told my God, my wife, and my son that I was going to vote that way anyway. I had no intent to be influenced. And on -- our second one is after the fact.
Lisa S. Blatt: Now I agree you could stretch the English language, but I just think it refers to more naturally an upfront payment is -- before the vote is an intent to be influenced and I'll do it and then after the vote is taken just more naturally refers to reward, which is what the Fifth and First Circuit found, was that it totally takes timing off the table. And so "corrupt" is doing all the work of quid pro quo.
Lisa S. Blatt: And "intending to influence" and "rewarded" is doing the work on either the timing of the payment or the -- the way you intend it.
John G. Roberts, Jr.: Thank you, counsel. Justice Alito, anything further? Justice Kagan? Justice Gorsuch?
Neil Gorsuch: I know we discussed this in Sabri, but I'm just curious, your thoughts on, I guess, what Justice Alito framed as the first question.
Neil Gorsuch: What are the limits to what Congress can do to federalize state substantive criminal law here?
Lisa S. Blatt: Yeah.
Lisa S. Blatt: So Sabri is definitely in the context of bribery, and so the question would be if the section -- sorry -- the 1984 version just criminalized gratuities and said for or because of official act 10-year penalty, and you would have to -- that -- there, you would meet, I think, the Spending Clause clear statement and the clear statement under Bass to upset the federal/state balance, and you have a pure Sabri question. I mean, it's tough.
Lisa S. Blatt: I think what the government would say, the only thing they intimated in their brief is that sometimes the gift could be so bad, I don't know, a Ferrari, that it might skew your official decisionmaking. And the problem with that is they don't have an answer, what about the toy Ferrari? I mean, so -- and they still have the vagueness problem, but I think their argument would be, although it's way less, it's certainly much weaker than bribery.
Lisa S. Blatt: I think their skewing is the way they would get around the sort of, I guess, whatever you call it, Spending Clause authority or Article I authority.
Lisa S. Blatt: But it was bribery.
Lisa S. Blatt: It was definitely bribery was at issue --
Neil Gorsuch: In Sabri.
Lisa S. Blatt: -- with the campaign finance and with the connection with the federal program was clearly a bribery quid pro quo.
Neil Gorsuch: And, here, we have a very different scenario with gratuities.
Neil Gorsuch: And did Congress really -- did it clearly mean to displace all state law?
Lisa S. Blatt: It's clear it's not clear to me.
Neil Gorsuch: Yeah.
Lisa S. Blatt: Not when it just looks nothing like any other gratuity statute in history or on the books today.
Neil Gorsuch: Thank you.
John G. Roberts, Jr.: Justice Kavanaugh?
Brett M. Kavanaugh: You've suggested a few times that state and local governments regulate gratuities of state and local officials. Can you give us some more color on that? Is there a disparity? You know, some jurisdictions will say up to $50, others up to $100?
Lisa S. Blatt: Yeah, it's infinite.
Lisa S. Blatt: Some of them will say, even if you do it, give the -- give the gift back.
Lisa S. Blatt: They don't put you in jail for 10 years.
Lisa S. Blatt: I mean, the -- the government -- I mean, yeah, no, there's an infinite. Here, it was not even alleged that -- Portage and Indiana have extensive ethical rules.
Lisa S. Blatt: There's no allegation that the Petitioner did anything in violation of those rules. And although the federal government has its own, every employer has different rules. Even in the ba nking context, DOJ is supposed to work with the bank and make sure that, you know, it's copacetic, and even then, DOJ says, we may second -guess the banking rules if we find them unreasonable, but they're supposed to at least work out ahead of time, but there's just -- there's a lot of cities and there's a lot of states, and I don't think most states even have gratuity laws.
Brett M. Kavanaugh: Thank you.
Lisa S. Blatt: So they're just making something a crime that's not.
John G. Roberts, Jr.: Justice Jackson?
Ketanji Brown Jackson: Yeah.
Ketanji Brown Jackson: So, if you're right and there's a distinction between bribes and gratuities in the way that you're positing it, I guess we'd have a statute in which Congress is intending to prohibit an official from going to a company ahead of time and saying: Pay me $15,000 and I will steer the garbage truck contracts to your company. But Congress would not have intended to prohibit that same official from steering the garbage truck contracts to the company and after the fact going to them and saying: Okay, give me $15,000.
Lisa S. Blatt: Yeah.
Lisa S. Blatt: And --
Ketanji Brown Jackson: And I guess I don't understand how you have a statute that is rationally drawing a distinction between those two scenarios.
Lisa S. Blatt: Oh, Sun -Diamond, Justice Scalia goes on and on and on, like his -- one of his favorite cases ever, he just goes on and on about the big difference between a bribery, that's where you pay the money in exchange, and a gratuity, that the action is taken is after the fact.
Lisa S. Blatt: 201 made that distinction. And so the other thing I would say, and you can ask the government, the government's position does not depend on steering.
Lisa S. Blatt: Thi s could have been the best garbage track -- garbage truck contract in the history of the planet but didn't like the $10,000 or didn't like the type of gift. They ask -- they say it's okay to give coffee and doughnuts to the police who work around the clock.
Lisa S. Blatt: Well, what about the police who coerced a confession? Is that corrupt? Same gift, same donut. The government's theory to the jury has nothing to do with the steering.
Lisa S. Blatt: It's just they want to do that to make, you know, the -- the client look bad.
Lisa S. Blatt: It is simply you got something of value after the fact because it related to official conduct, which doesn't depend on any misconduct at all by the official. And, again, Sun-Diamond is literally all about the difference, and even in Sun-Diamond, this Court went crazy to make sure federal officials were protected because two years was too long for federal officials to go to jail for a gratuity.
John G. Roberts, Jr.: Thank you, counsel. Ms. Sinzdak.
Colleen E. Roh Sinzdak: Mr. Chief Justice, and may it please the Court: The federal government needs to ensure the money it appropriates to local governments for public benefits is allocated in a way that maximizes the benefits to its citizens, not the rewards for local officials. Congress, therefore, enacted Section 666 to bar officials from corruptly accepting payments with the intent to be influenced or rewarded in connection with their official duties. Petitioner asks this Court to weaken Section 666's protection for the public fisc by holding that a person does not violate Section 666 when he corruptly solicits a payment with the intent to be rewarded unless he has also agreed to accept the reward beforehand. But that requirement of a beforehand- agreement finds no basis in the statutory text. The plain meaning of "reward" readily covers a payment given in return for an official action or decision that is already complete. So a police chief who sends his officers to foil a burglary at a store and then demands the store owner pay him $10,000 for his officers' work, he acts with the intent to be rewarded. A safety inspector who issues a building permit for a dangerous project and then solicits a $30,000 payment acts with the intent to be rewarded. And a mayor who steers a contract for a particular business and then asks that business to pay him $13,000 for the contract acts with the intent to be rewarded, whether or not the contractor agreed to give him the reward before the contract closed. Petitioner's argument to the contrary ignores both the plain meaning of the term "rewarded" and the statutory history.
Colleen E. Roh Sinzdak: In 1984, Congress enacted a flat bar on the acceptance of bribes and gratuities.
Colleen E. Roh Sinzdak: It was modeled dire ctly on the one in Section 201(c) that applies to federal employees. In 1986, Congress narrowed that bar to carve out a subset of only the most culpable gratuities by adding a corruptly mens rea and an express exception for bona fide salary and benefits paid in the ordinary course of business. Now Congress's textual fix worked. Petitioners haven't pointed to any real -world examples of Section 666 prosecutions for the sort of innocuous gift -giving activity that occurs in the ordinary course of business, and I'm happy to explain why the -- the two examples in their reply brief really just aren't what they are describing. But the Court should therefore reject Petitioner's invitation to artificially narrow the reach of Section 666. I welcome the Court's questions.
John G. Roberts, Jr.: Counsel, under your theory, there are two offenses in 666, the gratuity and the bribery.
John G. Roberts, Jr.: And a gratuity is really just a bribery without a quid pro quo, right?
Colleen E. Roh Sinzdak: So, first of all, there's a single offense, corruptly accepting a payment, and then there are two means of committing that offense, either intending to be influenced or intending to be rewarded. So it's -- it's one offense, the corrupt acceptance, and then two different means.
Colleen E. Roh Sinzdak: And you're right, there -- there -- they overlap a lot of times when you're accepting a payment.
John G. Roberts, Jr.: Well, I don't know if they overlap.
John G. Roberts, Jr.: It seems one is a lesser included offense than the other, right? Gratuity, why isn't the bribery thing just surplusage?
Colleen E. Roh Sinzdak: No --
John G. Roberts, Jr.: You -- you can -- you just show a gratuity and, as I say, it's just kind of bribery without the quid pro quo. That's all you need to show.
Colleen E. Roh Sinzdak: No, there are going to be situations where somebody is going to accept a payment intending to be influen ced without intending to be rewarded.
Colleen E. Roh Sinzdak: So that's going to happen.
Colleen E. Roh Sinzdak: When somebody accepts a bribe and says: Yes, this -- this $10,000, it's going to influence me in making this decision, but I haven't made up my mind yet, and maybe they turn to someone else and say, hey, you know, somebody else gave me $10,000 to influence me, sure, you know, $20,000 might pu sh me in another direction.
Colleen E. Roh Sinzdak: At that point, the -- the person gets $20,000 and does what the second person wanted. Now, in the second situation, I think that is somebody who's both intending to be influenced and intending to be rewarded because they're going to do something for that $20,000. But, in the first situation, there is nothing to be rewarded.
Colleen E. Roh Sinzdak: So they aren't going to -- so they are intending to be influenced, but they haven't made a decision.
Colleen E. Roh Sinzdak: They haven't taken an act.
Colleen E. Roh Sinzdak: So they aren't int ending to be rewarded.
Elena Kagan: But, no, that's a strange hypothetical, right? It doesn't really happen in the real world.
Colleen E. Roh Sinzdak: I'm not sure that's --
Elena Kagan: I mean, I guess what I'm suggesting is that you have to work pretty darn hard to get out of the problem that the Chief Justice suggested.
Colleen E. Roh Sinzdak: No, I -- I don't think so for two reasons.
Colleen E. Roh Sinzdak: First of all, I don't think it's so farfetched to imagine a mayor who says kind of, you know, I -- I'm taking bids on the contract and, hey, it sure would help if you put a payment, you know -- you know, you offered me something too, and then I think you are going to have a few different payments happening with the intent to be influenced but not rewarded. But the second point is that I think this lesser included offense comes from the relationship between 201(b), which covers bribery for federal officials, and 201(c), which covers gratuities. And the 201(c) offense is a broader offense.
Colleen E. Roh Sinzdak: It's the for or because of language. There's no corruptly mens rea.
Colleen E. Roh Sinzdak: There's no express exception for bona fide salary and compensation. So, there, I think it actually can be described as a lesser included offense.
Colleen E. Roh Sinzdak: But, here, it's not that all gratuities are covered within the rewarded because, of course, the other restrictions within Section 666 still apply.
Colleen E. Roh Sinzdak: So it has to be accepted corruptly, and we have the exception for --
Brett M. Kavanaugh: What -- what is -- keep going, sorry.
Brett M. Kavanaugh: What --
Colleen E. Roh Sinzdak: Oh, no, I was just going to say the exception for bona fide salary.
Brett M. Kavanaugh: Well, I think the problem you have is what does "corruptly" mean.
Colleen E. Roh Sinzdak: So I think Arthur Andersen decide -- described "corruptly." It said it has to be corrupt, so that means wrongful or evil or immoral.
Colleen E. Roh Sinzdak: And there has --
Brett M. Kavanaugh: So does a $100 Starbuck gift certificate as a thank you to the city council-person who -- for working on a new zoning reg, is that corrupt or not?
Colleen E. Roh Sinzdak: So, no, and let me tell you exactly why.
Colleen E. Roh Sinzdak: I think that the reason --
Brett M. Kavanaugh: How about a $500 one?
Colleen E. Roh Sinzdak: So I think it would be helpful to set out what the guidelines are going to be here because, when there's a corruptly mens rea, what you -- you usually see in the jury instructions, sometimes it says consciousness of wrongdoing, so you have to know that what you're doing is wrong, but sometimes what the jury instructions do is isolate what is actually wrongful, what is obviously wrongful about this conduct. So I think, when we're talking about corruptly in connection with rewards, you have to isolate what's wrongful, and what's wrongful is when it appears that the government is for sale.
Colleen E. Roh Sinzdak: What's wrongful -- so -- so here are three specific --
Brett M. Kavanaugh: Well, you're change --
Neil Gorsuch: Counsel --
Brett M. Kavanaugh: -- you're changing the hypothetical.
Brett M. Kavanaugh: The hypothetical is the action's taken and a citizen gives a thank you and it could be a gift card to Starbucks or it could be tickets to a concert or game and just drops it off to the person, thank you for all your hard work on this issue, appreciate you.
Colleen E. Roh Sinzdak: So I do not want to get away from "corruptly." I also want to point out that, of course, there's other limitations within the statute.
Colleen E. Roh Sinzdak: So, if the -- the business or transaction that's being rewarded isn't worth at least $5,000 --
Brett M. Kavanaugh: I understand that.
Colleen E. Roh Sinzdak: -- you're not going to get there.
Brett M. Kavanaugh: Assume it --
Colleen E. Roh Sinzdak: Okay.
Colleen E. Roh Sinzdak: I just want to make sure because I do think, for example, in Sun-Diamond, Justice Scalia said that requiring this connection with a particular act is going to eliminate innocuous gift-giving for federal officials --
Brett M. Kavanaugh: But you can't --
Colleen E. Roh Sinzdak: -- who don't have --
Brett M. Kavanaugh: I'm going to press on this.
Brett M. Kavanaugh: What is innocuous and what is not? And, just as important, how is the official supposed to know ahead of time, oh, the $100 gift certificate's okay, but the larger one's not, or the set of books or the framed photo --
Colleen E. Roh Sinzdak: So, again --
Brett M. Kavanaugh: -- or --
Colleen E. Roh Sinzdak: -- I think there are three circumstances where the official is going to know that what he's doing is obviously wrongful.
Colleen E. Roh Sinzdak: The first one is where he took the public act with the intent to be rewarded.
Neil Gorsuch: No, no, no.
Brett M. Kavanaugh: Assume -- assume that's not the --
Neil Gorsuch: That's collapsing two different things.
Colleen E. Roh Sinzdak: Well, I can't just --
Neil Gorsuch: Counsel, you're collapsing two different things there.
Brett M. Kavanaugh: That's not my hypothetical.
Neil Gorsuch: Yeah.
Brett M. Kavanaugh: My hypothetical is the person, the official knew nothing about the potential for the gratuity after the fact.
Colleen E. Roh Sinzdak: So that's going to make it harder for the government to prove corruptly, but there are two other circumstances --
Brett M. Kavanaugh: Why? Why?
Colleen E. Roh Sinzdak: Because corrupt -- because "corruptly" has to get at what's obviously wrongful in the statute, which is where you are performing public acts for private gain.
Colleen E. Roh Sinzdak: So, if that's --
Neil Gorsuch: Counsel, I'm sorry to interrupt.
Samuel A. Alito, Jr.: But that's a bribe.
Neil Gorsuch: But I am going to interrupt there because I think the questions and the ones I'm interested in have to do with mens rea on "corruptly." And I think that's what Justice Kavanaugh is getting at. SO put aside the actus reus for a moment.
Neil Gorsuch: You say "corruptly" carries with it some mens rea.
Colleen E. Roh Sinzdak: Absolutely.
Neil Gorsuch: What is it?
Colleen E. Roh Sinzdak: Consciousness of wrongdoing.
Neil Gorsuch: So you think the defendant has to know that what he is doing is unlawful?
Colleen E. Roh Sinzdak: Or wrongful.
Colleen E. Roh Sinzdak: He -- he doesn't have --
Neil Gorsuch: Unlawful or --
Colleen E. Roh Sinzdak: -- to know about the specific -- well, he does not --
Neil Gorsuch: -- wrongful?
Colleen E. Roh Sinzdak: Or wrongful, inherently wrongful.
Colleen E. Roh Sinzdak: That's correct.
Neil Gorsuch: Where does that -- where does that come from?
Colleen E. Roh Sinzdak: That comes from Arthur Andersen.
Neil Gorsuch: Well, the consciousness of wrongdoing usually means that I know.
Neil Gorsuch: I mean, wrongdoing is defined by law usually, right? But you're saying -- you're saying no, it doesn't -- he doesn't have to know that it's unlawful; he has to know that it is unlawful or -- fill in the blank.
Colleen E. Roh Sinzdak: Wrongful.
Colleen E. Roh Sinzdak: And I think sometimes actually -- so unlawful is usually, you're right, going to get you there.
Colleen E. Roh Sinzdak: And, here, I think we have someone who did everything he could to hide that he was getting this money and said that it was a consulting fee.
Colleen E. Roh Sinzdak: So you have a lot of evidence of consciousness --
Neil Gorsuch: How do you know if it's wrongful if it's -- if it's perfectly legal?
Colleen E. Roh Sinzdak: Well, so it is -- it was not perfectly --
Neil Gorsuch: I mean, is it a sin? Are we now talking about something that, you know -- you know, something that would be a -- a venal sin, or does it have to be a mortal one?
Colleen E. Roh Sinzdak: I want to ground us in the facts of this case.
Colleen E. Roh Sinzdak: So I think it's important here to establish that the Indiana code actually bars giving a gratuity to a public official.
Colleen E. Roh Sinzdak: The Indiana --
Neil Gorsuch: I'm not asking about Indiana.
Colleen E. Roh Sinzdak: -- Portage -- okay.
Neil Gorsuch: I'm asking what the government's position is on "corruptly" and mens rea, and you say it has to be unlawful or wrongful.
Neil Gorsuch: And wrongful in what sense?
Colleen E. Roh Sinzdak: So, again, I think what we're talking about here is wrongful in the sense that Arthur Andersen said evil, corrupt, immoral.
Colleen E. Roh Sinzdak: And sometimes that's when --
Neil Gorsuch: Immoral?
Colleen E. Roh Sinzdak: That is what this Court said in Arthur Andersen.
Neil Gorsuch: So a gift of pornography, as -- as -- as your counsel -- friend on the other side pointed out in her opening, is -- is -- would that count in the government's view?
Colleen E. Roh Sinzdak: It needs to be wrongful in the way -- in the way that the statute is targeting.
Colleen E. Roh Sinzdak: So, here, again, what the statute is targeting, the obviously wrongful conduct that the statute is targeting is taking public acts for private gain.
Colleen E. Roh Sinzdak: So where, again -- and I'm just going to give you the three circumstances.
Brett M. Kavanaugh: That -- that defeats your whole theory -- I'm sorry -- because, if the public act was done, completed, I've done -- we're done with the new zoning reg, we're done with the new school board decision, and then the gratuity, the gift, the thank you arrives, you're still going to prosecute those cases as corrupt under your theory of what "corruptly" means, correct?
Colleen E. Roh Sinzdak: Where one of three circumstances is met.
Brett M. Kavanaugh: So that means where you haven't taken the public action for private gain.
Colleen E. Roh Sinzdak: No.
Colleen E. Roh Sinzdak: I think that's where the -- the -- the problem is coming in. So, here, for example, imagine that the official just knows that the Buha brothers, they pay big rewards to people who give them contracts.
Colleen E. Roh Sinzdak: So what he decides to do is award the contract to the Buha brothers.
Colleen E. Roh Sinzdak: Afterwards, he's going to ask for the payment.
Colleen E. Roh Sinzdak: That is corrupt.
Colleen E. Roh Sinzdak: He took --
Brett M. Kavanaugh: The facts of this case are great in that sense for you to respond to the question, but there are 19 million employ ees who are going to --
Colleen E. Roh Sinzdak: And what I'm saying --
Brett M. Kavanaugh: -- wonder about the thank yous.
Colleen E. Roh Sinzdak: -- for all of those employees, the government is going to have to peruse -- pardon me -- to prove corruption.
Colleen E. Roh Sinzdak: So, if they can't prove that the person actually did -- and let me get out the other two because there are two others.
Brett M. Kavanaugh: I will.
Colleen E. Roh Sinzdak: If it can't prove that the person actually took the act intending to be rewarded, which gives you corruptly, they can also sometimes prove that by taking this payment, let's say it's $100,000 for having won a case, in the future, the person is going to be trying to win cases to get the money rather than for -- in the interests of the public. And then there's also going to be -- with certain payments, it's just going to be clear that if the public official takes this, it's going to look like the government is for sale.
Colleen E. Roh Sinzdak: And that's because the --
John G. Roberts, Jr.: Well, every time --
Samuel A. Alito, Jr.: Does this --
John G. Roberts, Jr.: Go ahead.
Samuel A. Alito, Jr.: Does this provision apply to campaign contributions?
Colleen E. Roh Sinzdak: Section 666 applies to campaign contributions.
Colleen E. Roh Sinzdak: Under McCormick, there needs to be a quid pro quo in the campaign context, so -- pardon me -- in the campaign contribution context.
Colleen E. Roh Sinzdak: So the government does not prosecute where there is a bona fide campaign contribution.
Samuel A. Alito, Jr.: So where do you get -- how does that fit into the statutory language?
Colleen E. Roh Sinzdak: So what we've taken it is there would be an as-applied constitutional objection if we were trying to prosecute a -- campaign contributions on a -- sorry -- bona fide campaign contributions on a pure gratuities theory. And -- and, sorry, if I could just get -- get back again to --
Elena Kagan: Well, how -- how about this? I mean, this statute applies to more than government officials.
Elena Kagan: It applies to pretty much every hospital.
Elena Kagan: It applies to pretty much every university.
Elena Kagan: So let's say billionaire patient comes to a hospital and gets extra special treatment.
Elena Kagan: He gets appointments when nobody else would get it.
Elena Kagan: He gets surgery scheduled when nobody else would.
Elena Kagan: And -- and it's all done because everybody knows he's a billionaire patient, and they're hoping that he'll give an eight-figure gift to the hospital. How about that? Does that fit?
Colleen E. Roh Sinzdak: So it needs to be -- you walk through the statutory requirements. The pay -- there needs to be the acceptance or the solicitation of money in connection with particular business or transactions.
Elena Kagan: Well, they're definitely going to accept the eight-figure gift when it comes. (Laughter.)
Colleen E. Roh Sinzdak: Oh, sorry.
Colleen E. Roh Sinzdak: Are you talking about the -- they're -- on the promise of this eight-figure gift?
Elena Kagan: No.
Elena Kagan: I'm just saying they treat him really super nicely because they are very hopeful and -- that he's going to recompense them for all the special consideration that they've given.
Elena Kagan: Does that fit or does it not fit?
Colleen E. Roh Sinzdak: S o it -- the government is going to have to prove that accepting that -- that reward would be corrupt and that the --
Elena Kagan: Well, a lot of people --
Colleen E. Roh Sinzdak: -- hospital understands that it's corrupt.
Elena Kagan: -- a lot of people do not think it's good to give super -rich people better healthcare than not -so-super- rich people. So I could see a jury saying that's pretty immoral, but probably every hospital in America does it.
Colleen E. Roh Sinzdak: Well, the hospital has to have consciousness of wrongdoing.
Colleen E. Roh Sinzdak: So it's what the hospital thinks that matters there, right? The hospital has to understand that in accepting that money, they're -- they are committing wrongdoing.
Colleen E. Roh Sinzdak: And -- and so --
Elena Kagan: Well, but there's a jury that's going to decide whether they're committing wrongdoing or not, and a jury might say that sounds pretty corrupt. And all I'm suggesting is that given that this -- that this statute applies not just to government officials but to pretty much, like, every important institution in America, I mean, that seems quite extraordinary that when you do stuff hoping, thinking it might earn you a big gift, even if it's just for the institution, not to put in your own pocket, that -- that that would land you 10 years in prison?
Colleen E. Roh Sinzdak: Let me say -- respond to that in two ways.
Colleen E. Roh Sinzdak: First of all, under Section 201(c), the federal government officials are undisputedly bound by these sorts of requirements with no corruptly mens rea.
Colleen E. Roh Sinzdak: And in -- in -- in Sun -Diamond, this Court said that requiring a tight connection between the reward and specific -- and specific official acts or here you would say specific business or -- business or transactions worth more than $5,000, that was going to eliminate many, many of these cases. And I don't think that -- we haven't -- again, Petitioner isn't here pointing to a mountain of cases where this has gone horribly astray.
Colleen E. Roh Sinzdak: So Section 201(c) does it for government officials without the "corruptly." I'd also note -- and I think you were pointing this out earlier with the -- in the colloquy with Petitioner -- that it's not going to get us out of this problem to just graft on an atextual beforehand agreement because all that has to happen is that that rich -- that rich patient says to the doctors and nurses, hey, if you treat me well, there's -- there's going to be a nice big gift for the hospital at the end.
Colleen E. Roh Sinzdak: And -- and then the -- the beforehand agreement requirement just isn't going to do anything.
John G. Roberts, Jr.: Counsel, you said --
Colleen E. Roh Sinzdak: So I think that's why -- yes.
John G. Roberts, Jr.: -- you said the -- your fr iend on the other side hasn't pointed to a lot of examples in the real world. But we've had several cases where we've made the very clear point that we don't rely on the good faith of the prosecutors in deciding cases like this.
Colleen E. Roh Sinzdak: That's right.
Colleen E. Roh Sinzdak: And in 1986, neither did Congress with respect to local and public officials.
Colleen E. Roh Sinzdak: That's why it added the corruptly mens rea, which has to be proved to a jury, and that's why Congress added an express exception for bona fide salary for comp ensation in the ordinary course of business. So Congress really did confront all of the concerns that I think the Court is -- is reflecting today, and it said we recognize, we do not want to just cover innocuous gift-giving activity.
Samuel A. Alito, Jr.: And what is the -- what is your answer to Justice Kagan's hypothetical? That's a question that would be submitted to the jury, and the jury would have to decide whether the donor acted wrongfully and the hospital acted wrongfully, right?
Colleen E. Roh Sinzdak: They would have to prove that the hospital understood that it was wrongful to accept that payment.
Colleen E. Roh Sinzdak: Now, again, that's going to be the case.
Colleen E. Roh Sinzdak: If the donor under Petitioner's theory, that's the case if the donor is telling the hospital when he goes in for the surgery --
Samuel A. Alito, Jr.: No, no, no, no --
Colleen E. Roh Sinzdak: -- he's going to.
Samuel A. Alito, Jr.: -- no, no, don't turn it into a bribe.
Samuel A. Alito, Jr.: It's a gratuity.
Samuel A. Alito, Jr.: It's after the fact.
Samuel A. Alito, Jr.: There's no agreement.
Colleen E. Roh Sinzdak: Well, no.
Colleen E. Roh Sinzdak: I --
Samuel A. Alito, Jr.: So it would be whether the hospital knew that it was wrongful?
Colleen E. Roh Sinzdak: Suppose that --
Samuel A. Alito, Jr.: I mean, suppose there are internal e -mails and one -- you know, one official says, you know, we really should be treating -- shouldn't be giving such special treatment to billionaires and another e -mail says, you know, get real, we need money, and et cetera, et cetera.
Colleen E. Roh Sinzdak: At the end of the day, Congress is entitled to draw the statutes and to make the bars the way it wants to.
Colleen E. Roh Sinzdak: The reason though that I was pushing back and giving you the bribery hypothetical is that I really do think that what I'm hearing today is there are some payments that just aren't or some gifts that just aren't corrupt. And that's going to be true whether you're pursuing a bribery prosecution --
Neil Gorsuch: Counsel, how does anyone in the real world know the line? Put aside billionaires and hospitals.
Neil Gorsuch: Deal with small gifts with teachers, doctors, police officers, all the time. And one could make an argument, if -- if -- if consciousness of wrongdoing doesn't mean consciousness of illegality, awareness of illegality, if it means something more abstract than that, how does this statute give fair notice to anyone in the world as to -- and I hate to do it, but I'm going to -- the difference between the Cheese Factory and -- (Laughter.)
Neil Gorsuch: And -- and --
Amy Coney Barrett: Inn at Little Washington.
Neil Gorsuch: And the Inn at Little Washington.
Neil Gorsuch: Thank you, thank you.
Neil Gorsuch: How does anyone know?
Colleen E. Roh Sinzdak: Again, Justice Gorsuch, I do not mean to suggest that if you are aware that you are violating the law, that's not going to establish consciousness of wrongdoing.
Neil Gorsuch: No, no, no.
Neil Gorsuch: Counsel put that aside.
Colleen E. Roh Sinzdak: Okay.
Neil Gorsuch: You've rejected that as the definition of consciousness of wrongdoing.
Neil Gorsuch: You say it includes consciousness of either illegality, which I would have thought might mean wrongdoing, but I'm wrong.
Neil Gorsuch: It can mean something more than that, it can m ean a venial sin, it can mean a mortal sin, how does -- how does somebody who accepts the Cheesecake Factory know a trip to the Cheesecake Factory for a nice treatment at the hospital, for treating my child well in school, for an arrest made? How does that person know whether that falls on the -- what you call the wrongfulness side of the equation or not?
Colleen E. Roh Sinzdak: Well, certainly they can look at ethical guidance -- guidelines as they were for the City of Portage.
Neil Gorsuch: How about looking at state law.
Neil Gorsuch: Counsel, how about like looking at state law --
Colleen E. Roh Sinzdak: They could -- they could do that as well.
Neil Gorsuch: Yeah.
Neil Gorsuch: And let's say it's all legal under state law.
Neil Gorsuch: And you would -- and --
Colleen E. Roh Sinzdak: If it's all legal under state law, the government is not going to be able to prove consciousness of wrongdoing.
Neil Gorsuch: Why -- why --
Brett M. Kavanaugh: Why --
Neil Gorsuch: Why not? Counsel, please.
Colleen E. Roh Sinzdak: Sure.
Neil Gorsuch: We're going to have internal e -mails like Justice Alito posited. Some people would say oh, I wouldn't go to the Cheesecake Factory, that would look bad. (Laughter.)
Neil Gorsuch: You know, or maybe you should go to the Cheesecake Factory but not Little Inn at Little Washington.
Neil Gorsuch: A lot of nice places to me.
Neil Gorsuch: But you're going to have evidence and you could prove it.
Neil Gorsuch: And a jury might well convict.
Colleen E. Roh Sinzdak: Sure, and that's why the act also has to be wrongful.
Colleen E. Roh Sinzdak: This is actually a protection, Justice Gorsuch, so I think that maybe we're talking a little bit across purposes.
Brett M. Kavanaugh: Well, can I ask --
Colleen E. Roh Sinzdak: Because what I'm trying to say here is that the government has to show that it's wrongful and the person is aware that it's wrongful. So if it's lawful under state law, then the -- the -- the defendant is going to be able to come in and say no, look, this is lawful under state law.
Colleen E. Roh Sinzdak: So it wasn't wrongful.
Colleen E. Roh Sinzdak: The state obviously didn't think it was wrongful and by the, way I have no idea --
Brett M. Kavanaugh: You're going to have an automatic rule?
Neil Gorsuch: Yeah.
Brett M. Kavanaugh: Is that an automatic rule is that -- is that a safe harbor if it's lawful under state law or local law, then you cannot be federally prosecuted for the gratuity under this statute?
Colleen E. Roh Sinzdak: If it -- if it's lawful under the governing rules that apply to the person?
Brett M. Kavanaugh: In other words, it's not made unlawful.
Brett M. Kavanaugh: If it's not made unlawful --
Colleen E. Roh Sinzdak: I --
Brett M. Kavanaugh: Let me finish -- by the relevant state law or local law, is that an automatic, automatic safe harbor such that the federal government cannot prosecute under this statute?
Colleen E. Roh Sinzdak: Yes but, you know, I have to just for the sake of the public integrity unit say that if a city mayor decided to change all the ethics rules to allow him to take billions of dollars in -- in connection with contracting, then I don't think he could get it in. But otherwise yes, we're not -- so, again, this is what I'm trying to say.
Colleen E. Roh Sinzdak: The consciousness of wrongdoing isn't a trap to the --
Brett M. Kavanaugh: Should there be a --
Samuel A. Alito, Jr.: Sorry, I'm --
Colleen E. Roh Sinzdak: -- unweary.
Colleen E. Roh Sinzdak: It's to help the unweary.
Samuel A. Alito, Jr.: A little town has no rules about gratuities so you can't prosecute anybody in that town under 666?
Colleen E. Roh Sinzdak: No.
Colleen E. Roh Sinzdak: So, first of all, there would be state rules.
Colleen E. Roh Sinzdak: Absolutely, there's going to be state rules.
Colleen E. Roh Sinzdak: I took --
Samuel A. Alito, Jr.: All right.
Samuel A. Alito, Jr.: There's no applicable -- the state has left the -- the regulation of gratuities to the municipalities. And a particular town has got 3,000 people, 2,000 people, 1,000 people.
Samuel A. Alito, Jr.: It has no rules about the gratuities the police officers can accept.
Colleen E. Roh Sinzdak: Look, if the police officer can come forward and say I just had no idea this was wrongful because there were no applicable rules, there was no applicable state law, then the government isn't going to be able to prove consciousness of wrongdoing.
Samuel A. Alito, Jr.: Then -- the question was whether that's an automatic rule.
Colleen E. Roh Sinzdak: No, no --
Samuel A. Alito, Jr.: And first you said it was.
Samuel A. Alito, Jr.: And now -- and an automatic safe harbor. Now I think you're saying it's not.
Colleen E. Roh Sinzdak: No, I disagree.
Colleen E. Roh Sinzdak: Let me distinguish between two things.
Colleen E. Roh Sinzdak: One is a case where there are ethics rules that say this is permissible, okay? If there are ethics rule that say that this is permissible, if there are state laws that say this kind of gratuity is permissible. That is a safe -- safe harbor. Other than --
Brett M. Kavanaugh: I -- I --
Ketanji Brown Jackson: Usually --
Brett M. Kavanaugh: -- changed the language of the question then to say also what if it's just, to Justice Alito's point, not made unlawful?
Colleen E. Roh Sinzdak: Ahh, Ahh, Ahh, Ahh.
Colleen E. Roh Sinzdak: I see.
Colleen E. Roh Sinzdak: Okay.
Colleen E. Roh Sinzdak: So I think there --
Brett M. Kavanaugh: What's the answer is there, is that a safe harbor?
Colleen E. Roh Sinzdak: It's not necessarily a safe harbor if it's obviously wrongful conduct, but I will say --
Brett M. Kavanaugh: What is obviously wrongful?
Ketanji Brown Jackson: Yes, so counsel, isn't --
Brett M. Kavanaugh: I mean, what's the jury instruction -- what -- what -- maybe this is a good way to say it.
Brett M. Kavanaugh: What is the exact wording of the jury instruction on corruptly in your view?
Colleen E. Roh Sinzdak: So I think there's two different options.
Colleen E. Roh Sinzdak: One is to isolate what is obviously wrongful in the particular case. That's what happened here, right? So in this case, and let me -- I think this is a helpful way of seeing how it played out, Petitioner was not saying oh, it's -- I -- I didn't know it was wrongful to take a $13,000 payment.
Colleen E. Roh Sinzdak: What -- what Petitioner was saying is: Oh, I wasn't taking a $13,000 reward, I was actually taking consulting fees. So the jury instructions here said: What the jury has to find is that the Petitioner understood that this was a reward.
Colleen E. Roh Sinzdak: So that's what separated the wrongful from the innocent conduct.
Colleen E. Roh Sinzdak: So that's one way of doing jury instructions, to look at a particular case and just say: Okay, what would make accepting $8 million for a hospital patient that --
John G. Roberts, Jr.: Well, I don't think that -- I don't think that gets you very far from the things where people have been talking about, understood that this was a reward.
John G. Roberts, Jr.: I mean, they understand that the, you know, plate of cookies or whatever is a reward --
Colleen E. Roh Sinzdak: So the --
John G. Roberts, Jr.: But that doesn't mean that they should be -- be facing the criminal exposure we're talking about.
Colleen E. Roh Sinzdak: Yes, pardon me.
Colleen E. Roh Sinzdak: And we're not saying that if the government was somehow prosecuting a plate of cookies, this instruction would be sufficient.
Colleen E. Roh Sinzdak: What I'm saying is that most cases there's actually no dispute about whether it would be wrongful to accept thousands of dollars in return for having done some official act. The dispute is about well, was it? Was it a reward for doing that specific official act or was it something else entirely?
John G. Roberts, Jr.: Well, you say that --
Ketanji Brown Jackson: Well --
John G. Roberts, Jr.: -- that it doesn't -- you know, that it's -- the government is not going to go after you for the plate of cookies.
Colleen E. Roh Sinzdak: That's right.
John G. Roberts, Jr.: But I mean, you know, Al Capone went to jail for tax fraud, right, not for killing however many people.
Colleen E. Roh Sinzdak: That's right.
John G. Roberts, Jr.: And, you know, you were careful to make sure you weren't stepping on the toes of the public integrity unit but I expect they have a different perspective on a lot of these things than others might.
Colleen E. Roh Sinzdak: No, no, in terms of whether the reward needs to be --
John G. Roberts, Jr.: Whether they can go after something that other people might regard as really sort of normal type of, let's say gratuity, you know, whether it's a Christmas gift for the -- for the trash collectors or something like that.
Colleen E. Roh Sinzdak: No, I disagree.
Colleen E. Roh Sinzdak: And they certainly couldn't in the Seventh Circuit if you look at 41A, the -- the Seventh Circuit said that accepting something corruptly is knowing that it's forbidden, so this is already in the Seventh Circuit --
Ketanji Brown Jackson: Counsel, isn't -- isn't -- isn't that really the answer to Justice Kagan's hypothetical that sort of got us down this road?
Colleen E. Roh Sinzdak: It did.
Ketanji Brown Jackson: In other words, to the extent that we have an ordinary practice of, you know, unfortunate as it may be, you know, high profile, special, you know, people, billionaires who come to hospitals and it's sort of understood generally that the development office is going to be notified and afterwards that person might, in fact, be asked to give a donation to the hospital that treated him so well, et cetera.
Ketanji Brown Jackson: That's sort of standard practice. So in a situation like that, I would think the government's position is that is not wrongful from the standpoint of corruption.
Ketanji Brown Jackson: We could not prove consciousness of wrongdoing related to anybody who's doing that sort of thing, precisely because it's standard practice. But when you have a situation like this one where it's not standard practice f or a garbage contract to be given to a particular company and then the company that received that contract to pay out money, $13,000 for the officials who were involved, that doesn't happen very often. And so when we're in that world, then perhaps we do have a dispute about whether or not there was wrongful behavior, consciousness of wrongdoing, et cetera.
Ketanji Brown Jackson: But that's what separates all these other standard practice, the cookies, the gift cards, the whatever, that's normal practice, as opposed to --
Amy Coney Barrett: Unless it's a corrupt -- what if -- what if it's a corrupt, like -- sorry to pick, you know, on Illinois or Chicago, but what if you're talking about some sort of local unit or a corrupt hospital where that actually is kind of corrupt practice that everyone would agree would be wrongdoin g? Not the donation to the hospital. Talk about something that's more unsavory. Maybe these rewards are just kind of accepted in this small town, and -- and, you know, you can't use that guideline then that Justice Jackson is talking about about what's standard, because graft could be standard or gratuities c ould be standard even in unsavory cases.
Colleen E. Roh Sinzdak: So the government has the burden of proof.
Colleen E. Roh Sinzdak: They need to prove that somebody acted corruptly with consciousness of wrongdoing.
Colleen E. Roh Sinzdak: I certainly agree with Justice Jackson that if a person knows that this kind of behavior is happening all the time, that's the evidence they're going to put in to make it very difficult for the government to meet their burden of proof. I take your point --
Sonia Sotomayor: Counsel, can I --
Colleen E. Roh Sinzdak: -- that the government might say, well, this is an obviously corrupt --
Sonia Sotomayor: Counsel?
Colleen E. Roh Sinzdak: -- hospital, here's all the other evidence of that.
Sonia Sotomayor: Counsel, my head is spinning.
Colleen E. Roh Sinzdak: Yes.
Sonia Sotomayor: I see the questions before us as twofold.
Sonia Sotomayor: Does the language of -- of this 201(c) include a gratuity? It's very hard for me to think otherwise because the language is pretty clear. So, if it's clear that it includes gratuity, a lot of these questions have to do with what kind of gratuity, and that's where I think my colleagues are focused on what does the word "corruptly" mean. And you are fighting their suggestion that if you limit it to accepting rewards that are unlawful -- I think Justice Gorsuch said, unlawful defined how? He would say under state law, I think.
Sonia Sotomayor: I don't want to be putting words into his mouth, but I think he would say unlawful by state law. But you want to broaden it.
Sonia Sotomayor: You want to say by ethical rules.
Sonia Sotomayor: But assume we -- we put that aside.
Sonia Sotomayor: Can you live with yes, it includes gratuities but only if you define "corruptly" as being unlawful, the way that Anderson suggested it went a little more broadly?
Colleen E. Roh Sinzdak: With -- with the understanding of unlawfulness, yes, absolutely. And let me answer that directly.
Colleen E. Roh Sinzdak: Let me also say that I -- I -- I take your point, "rewarded" -- I think the reason we're talking about "corruptly" is because "rewarded" just very clearly does cover after-the-fact payments. There is no beforehand agreement requirement. And I think that to the extent there's a dispute about exactly how you would define "corruptly," that isn't before the Court because they did not object to the definition of "corruptly."
Sonia Sotomayor: I understand it's not before the Court, but it really is because, if we -- if it's not defined that way, I think there's a sense of then "gratuity" has no meaning, that anyone that could -- it would be so vague that it would be impossible.
Colleen E. Roh Sinzdak: It would just be the provision that applies to federal officials in Section 201(c), which doesn't have the corruptly mens rea.
Sonia Sotomayor: Yes.
Colleen E. Roh Sinzdak: That's right.
Sonia Sotomayor: Obviously.
John G. Roberts, Jr.: Thank you, counsel. Justice Alito?
Samuel A. Alito, Jr.: Well, I'm not sure I understood your most recent colloquy with Justice Sotomayor. You said that it would be -- that "corruptly" should or could reasonably be interpreted to mean unlawful under state law? Is that what you said?
Colleen E. Roh Sinzdak: I said -- I think she asked whether we could live with a definition, and I said that understanding that it was unlawful is a definition I think that certainly would be preferable to carving out gratuities from the statute altogether.
Samuel A. Alito, Jr.: So, if something is not unlawful under state law, then it cannot be prosecuted as a gratuity under 666?
Colleen E. Roh Sinzdak: If the person -- the person needs to understand that what they're doing is wrongful.
Colleen E. Roh Sinzdak: I mean, this is why we do think it means more than --
Samuel A. Alito, Jr.: And that's a simple -- it's really a simple --
Colleen E. Roh Sinzdak: Yeah, I mean, absolutely, because --
Samuel A. Alito, Jr.: Counsel, really --
Colleen E. Roh Sinzdak: Yes.
Samuel A. Alito, Jr.: -- it's a simple question.
Colleen E. Roh Sinzdak: Okay.
Colleen E. Roh Sinzdak: Let me just be clear.
Samuel A. Alito, Jr.: Because it's a yes-or-no question.
Colleen E. Roh Sinzdak: Let me be clear.
Colleen E. Roh Sinzdak: I can live --
Samuel A. Alito, Jr.: I just want to understand your position.
Colleen E. Roh Sinzdak: Yes.
Colleen E. Roh Sinzdak: Absolutely.
Colleen E. Roh Sinzdak: I can live with, as I said to Justice Sotomayor, that narrow definition.
Colleen E. Roh Sinzdak: I do not think it is correct.
Colleen E. Roh Sinzdak: So that's the distinction that I am trying to draw. But, if the Court is intent on saying we have this statute that Congress wrote that says you can't accept a payment intending to be rewarded, but it has to be corrupt.
Colleen E. Roh Sinzdak: If the Court thinks that what Congress wrote is not good enough, it's not protective enough of city officials, and we need to graft a limit on, I would certainly rather you graft on a limit that is still going to catch people who are, like Petitioner, taking large sums of money after they awarded a contract with every intent to get that -- large sums of money. I would certainly rather you accept -- leave some room for that as opposed to carving it out entirely.
Samuel A. Alito, Jr.: Okay.
Samuel A. Alito, Jr.: And just to summarize so I understand where you are, you think that "corruptly" means moral -- immoral or wrongful, and it requires knowing, the person must know that what is being done is immoral or wrongful?
Colleen E. Roh Sinzdak: Know that it's forbidden.
Colleen E. Roh Sinzdak: Again, I'm just -- to be honest, I'm quoting Arthur Andersen.
Colleen E. Roh Sinzdak: So I think, if you're looking for --
Samuel A. Alito, Jr.: Just tell me what --
Colleen E. Roh Sinzdak: -- my definition of "corruptly" --
Samuel A. Alito, Jr.: Just tell me --
Colleen E. Roh Sinzdak: Sure.
Samuel A. Alito, Jr.: -- what the definition is.
Colleen E. Roh Sinzdak: So what Arthur Andersen said is that "corrupt" needs to be wrongful, evil, immoral, and a consciousness of wrongdoing.
Colleen E. Roh Sinzdak: So that's it.
Colleen E. Roh Sinzdak: That's what we're looking at.
Samuel A. Alito, Jr.: Okay.
Samuel A. Alito, Jr.: And where does -- where would one look to find the rules of wrongfulness and immorality that would be applied in that situation?
Colleen E. Roh Sinzdak: Well, again, I think that the criminal laws are a great place to look, so where the conduct is obviously unlawful.
Colleen E. Roh Sinzdak: You can also look at ethical codes and regulations if you're not sure whether something is obviously wrongful. None of this was litigated in this case because, again, there was no dispute that accepting a $13,000 payment for having granted a contract was wrongful, which I think was what he was doing.
Samuel A. Alito, Jr.: I -- I -- we -- I think we understand that.
Samuel A. Alito, Jr.: But we didn't really take this case just to decide whether this case was correctly -- this particular case was correctly decided.
Samuel A. Alito, Jr.: We took it to explore the meaning of this provision. Was the jury instruction here on "corruptly" correct?
Colleen E. Roh Sinzdak: I t was in the circumstances of this case because there was no dispute about whether accepting a reward was wrongful.
Colleen E. Roh Sinzdak: But, Justice Alia, that's what -- sorry, pardon me.
Colleen E. Roh Sinzdak: Justice Al ito, that is precisely what I'm trying to say.
Colleen E. Roh Sinzdak: You do have to look at the circumstances because you have to isolate what was wrongful. And, here, there was no dispute that taking $13,000 as a payment for having granted a contract was wrongful.
Colleen E. Roh Sinzdak: That's why Petitioner didn't object to the jury instructions.
Samuel A. Alito, Jr.: Is -- is this the standard instruction that the government has requested --
Colleen E. Roh Sinzdak: In the Seventh --
Samuel A. Alito, Jr.: -- in 666 gratuity cases?
Colleen E. Roh Sinzdak: In the Seventh Circuit, this comes from the model jury instructions.
Colleen E. Roh Sinzdak: I would say that in -- in the prosecutions that I have seen, there just hasn't really been room to argue that the person -- that the -- the acceptance of the payment wasn't wrongful because what the government has been prosecuting is taking money and then doing everything that you can to cover up the fact that you took the money as a reward. And, there, it's pretty easy to show consciousness of wrongdoing, right?
Samuel A. Alito, Jr.: But I --
Colleen E. Roh Sinzdak: I think what you're all talking about is these fringe cases where, oh, it's not really clear because the person actually took it openly and notoriously.
Colleen E. Roh Sinzdak: That's going to make it really hard for the government to show consciousness of wrongdoing if it's had --
Samuel A. Alito, Jr.: If we looked at the jury instructions in 50 666 gratuity cases, what would we find on the question of corruptly?
Colleen E. Roh Sinzdak: So --
Samuel A. Alito, Jr.: What would -- what would the jury be told? Here , what the jury was told is -- am I right, page 28 of the Joint Appendix -- a person acts corruptly when he acts with the understanding that something of value is to be offered or given to reward or influence. So, as to gratuity, to reward in connection with his official duties.
Samuel A. Alito, Jr.: I mean, all that has to be -- the person has to know is that this is a reward.
Colleen E. Roh Sinzdak: In this --
Samuel A. Alito, Jr.: It doesn't have to be immoral, wrongful, or anything else.
Colleen E. Roh Sinzdak: Again, that's -- in the circumstances of this case, there was no dispute.
Samuel A. Alito, Jr.: I -- I --
Colleen E. Roh Sinzdak: So I take your point.
Samuel A. Alito, Jr.: -- I -- I understand that.
Samuel A. Alito, Jr.: I understand that.
Samuel A. Alito, Jr.: I -- I'm not -- I don't want to talk about the circumstances of this case.
Colleen E. Roh Sinzdak: I know.
Samuel A. Alito, Jr.: I want to talk about what the law means and what the government's position has been on the issue of "corruptly" in other cases.
Samuel A. Alito, Jr.: Is this standard or, if we look at the others outside of the Seventh Circuit, the "corruptly" is defined as immoral or wrongful?
Colleen E. Roh Sinzdak: So the Second Circuit, I believe, has instructions that ask about a wrongful purpose.
Colleen E. Roh Sinzdak: And, of course, if the -- if the defendant thinks, look, I didn't know what -- that taking this reward was wrong, then he can ask for an instruction saying, I had no -- asking the jury to decide whether he understood that the -- taking the reward was wrong. So there can be that express request. And -- and -- and this is just -- I'm just sort of taking a page from Arthur Andersen on all of this. "Corruptly" is, I admit, a relatively unique -- or a unique mens rea, but it's one with a rich historical pedigree.
Colleen E. Roh Sinzdak: So it's not that the government is mak ing up some new limit. It's not that Congress in 1986, when it was trying to -- to eliminate innocuous gratuities, was doing something wild and crazy by saying, you know, we're going to use the corruptly mens rea because that is going to make sure that when people don't understand that what they're doing is wrongful, that when they're engaged in what everyone would reasonably think or at least, you know, that somebody would reasonably think was just innocuous conduct, then they're not going to be prosecutable because the government just isn't going to be able to show that that was corruptly.
Sonia Sotomayor: Counsel --
John G. Roberts, Jr.: I'm sorry. Are you done?
Samuel A. Alito, Jr.: Well, I am concerned about the breadth of -- the breadth of your interpretation, and it all seems to rest on the understanding of "corruptly." The person who gives a reward simply because that person is grateful may not know what the ethics rules are with respect to the recipient of this reward.
Samuel A. Alito, Jr.: So is that a defense?
Colleen E. Roh Sinzdak: Certainly, that -- that person could ask for a jury instruction say ing they need to -- there needs to be consciousness of wrongdoing, so they need to have understood that what they were doing was wrongful.
Colleen E. Roh Sinzdak: These are sort of obscure ethics rules, they didn't know -- you know, the person could say I didn't know about them.
Colleen E. Roh Sinzdak: These are obscure ethics rules, how would anybody know, you know, $25, $50.
Colleen E. Roh Sinzdak: And, yes, then they're entitled to a jury instruction saying no, there had to be a consciousness of wrongdoing.
Samuel A. Alito, Jr.: I mean, we can think of lots of different hypotheticals, and there are a lot in the briefs and a lot have occurred. I'll just give you one more and then I'll stop. So the owner of a -- of a car dealership gets money under -- during -- as a result of COVID, enough money to qualify, and the owner is thankful to a firefighter for saving the life of his daughter, and so, when that firefighter comes in to -- his car breaks down and wants a new car, but at that time, people are lined up, the cars are in short supply, and the -- the dealer says, okay, well, you know what, for you, I'll put you at the top of the list, is that a -- is that a violation?
Colleen E. Roh Sinzdak: If he does not have a consciousness of wrongdoing, if he does not understand that what he is doing is wrong, I don't think the government -- no, there's not going to be a conviction for t hat. Again, the -- the car being --
Samuel A. Alito, Jr.: There's not going to be a conviction because the jury is going to be sympathetic to this fellow?
Colleen E. Roh Sinzdak: No, because it's not going to fulfill the corruptly mens rea.
Colleen E. Roh Sinzdak: Again, I want to be clear because I think we keep losing sight of this.
Colleen E. Roh Sinzdak: Section 201(c) bars for federal officials just accepting gratuities, and it has no corruptly mens rea. The corruptly mens rea is a break. It's a break that Congress put in as an extra help to make sure that people who are bound by Section 666 aren't going to be prosecuted for all of this innocuous conduct. So I think this idea that by putting in something to protect -- an extra protection for Section 66 -- people covered by Section 666, you could somehow render all the coverage of -- of gratuities totally vague and unclear, I mean, that just can't be right.
John G. Roberts, Jr.: Thank you. Thank you, counsel. Justice Sotomayor?
Sonia Sotomayor: Counsel, you answered Justice Alito by saying the instruction here was correct.
Sonia Sotomayor: But I'm reading the Seventh Circuit opinion at page 580, and the court is talking about that it's recognizing the disparate penalties for gratuities between federal and state officers, and the difference is mitigated -- this is the court's words -- by the additional requirement in Section 666 that the reward be paid or received corruptly. And it defined "corruptly," i.e., with the knowledge that giving or receiving the award -- reward is forbidden.
Colleen E. Roh Sinzdak: That's right.
Sonia Sotomayor: All right.
Sonia Sotomayor: But that wasn't part of the charge here.
Colleen E. Roh Sinzdak: At 41a? No, because, again, the Petitioner was not -- was not arguing.
Sonia Sotomayor: So -- so the charge wasn't correct.
Sonia Sotomayor: It was just not the -- any error was not preserved to be --
Colleen E. Roh Sinzdak: I mean, that's an issue that could be dealt with on remand.
Colleen E. Roh Sinzdak: But what I would say -- yes.
Colleen E. Roh Sinzdak: Yes.
Sonia Sotomayor: I understand. Just answer my question.
Colleen E. Roh Sinzdak: Yes, I am.
Colleen E. Roh Sinzdak: So --
Sonia Sotomayor: All right.
Sonia Sotomayor: Now stop, okay?
Colleen E. Roh Sinzdak: Okay.
Sonia Sotomayor: Assuming if you go back below, if we say that -- I'm not saying we're going to say it -- that it doesn't -- that 666 doesn't cover any kind of gratuity, what happens? Is this a reversal or a vacate and remand?
Colleen E. Roh Sinzdak: It's a vacate and remand because the government was pursuing a bribery theory .
Sonia Sotomayor: As well?
Colleen E. Roh Sinzdak: Yes.
Sonia Sotomayor: And so it was -- we don't know what the acquittal went to, whether it went --
Colleen E. Roh Sinzdak: Well --
Sonia Sotomayor: -- to the bribery or to the reward?
Colleen E. Roh Sinzdak: So -- pardon me.
Colleen E. Roh Sinzdak: It's a -- it's a single offense, the corrupt --
Sonia Sotomayor: Mm-hmm.
Colleen E. Roh Sinzdak: -- acceptance offense, that can be committed through intending to be influenced or rewarded. Now the -- the district court actually found that there was sufficient evidence to convic t purely on the -- on the quid pro quo gratuity theory.
Sonia Sotomayor: I remember that, yes.
Colleen E. Roh Sinzdak: Yeah.
Sonia Sotomayor: Okay.
Colleen E. Roh Sinzdak: So --
Sonia Sotomayor: So -- and if I don't disagree with that, then is there a retrial?
Colleen E. Roh Sinzdak: No, we think that there would be because the evidence was sufficient to convict on the -- on the -- on the bribery.
Sonia Sotomayor: That was --
Colleen E. Roh Sinzdak: But, again, that's something for remand.
Sonia Sotomayor: All right.
Sonia Sotomayor: Thank you, counsel.
Colleen E. Roh Sinzdak: Mm-hmm.
John G. Roberts, Jr.: Justice Kagan?
Elena Kagan: I think I've got your view of corruptly.
Colleen E. Roh Sinzdak: I'm glad.
Elena Kagan: But, if you put that aside, are there any safe harbors in this statute -- and just like if you would list for me the safe harbors that the government thinks exists either on the face of this statute or in the way you're prosecuting this statute, just give me a list.
Colleen E. Roh Sinzdak: Sure.
Colleen E. Roh Sinzdak: So the -- the safe harbors that come from the text, so this is in a sort of trust us argument.
Colleen E. Roh Sinzdak: There's the that it has to be in connection with business or transactions worth $5,000.
Elena Kagan: Got it, five -- $5,000.
Colleen E. Roh Sinzdak: Right.
Colleen E. Roh Sinzdak: That's the Sun-Diamond, there has to be the nexus, that's going to kick out a whole bunch of innocuous conduct, more even than --
Elena Kagan: Just -- just list them.
Colleen E. Roh Sinzdak: Just list them? Okay. So the corruptly mens rea, the nexus requirement, the $5,000 floor, and the express exception for bona fide salary and compensation in the ordinary course of business.
Elena Kagan: Anything else?
Colleen E. Roh Sinzdak: That's -- that's all -- well, and pardon me, and then the First Amendment protection that says that under McCormick we understand that to mean that there really has to be an express quid pro quo when we're dealing with a bona fide campaign contribution.
Elena Kagan: Nothing else that the government can say we realize that this doesn't appear on the text of the -- in the text of the statute on, you know, like you just read it, but we never prosecute X, Y, or Z?
Colleen E. Roh Sinzdak: I mean, you -- you've told me to sort of set aside "corruptly."
Elena Kagan: Yes, set aside.
Colleen E. Roh Sinzdak: And I think that's where a lot of that comes in.
Colleen E. Roh Sinzdak: But, for example, the government does not prosecute pure charitable contributions.
Colleen E. Roh Sinzdak: Sometimes charitable contributions are used as a funnel, so it's just sort of like you pay into the charity and then that goes right into the person's pocket, but the government doesn't -- doesn't prosecute these -- the -- the just pure charitable contribution. If you actually look at the facts of the cases that they're citing, I think one of them is from the Local 150, that's the Donegal prosecutio n, there's actually thousands and thousands of dollars of payments of all different kinds, that's actually on -- on Westlaw.
Colleen E. Roh Sinzdak: You can look at the facts.
Colleen E. Roh Sinzdak: They're quite dramatic.
Colleen E. Roh Sinzdak: So that's not just pure charitable contributions. Similarly, I think they refer to a building inspector case.
Colleen E. Roh Sinzdak: In that case, somebody was giving -- the building inspector was giving permits and then -- and then getting, again, large amounts of money from developers, having given them the permit, so I think we had 30 -- a 240,000 loan, $30,000 the person just got to keep scot-free. So -- so I guess I'm kind of trying to give you a picture of the sort of prosecutions, which I -- I -- I guess I'm not kind of including in here the kind of apple for teacher and the like, you know, the hypotheticals that you see in Petitioner's brief.
Colleen E. Roh Sinzdak: They're just not even on the radar in terms -- of the government. So I think those are just what we're looking for is, again, corrupt acceptance of a payment with the intent to be rewarded in connection with business or transactions worth at least $5,000.
Colleen E. Roh Sinzdak: And when we're talking about all these hypotheticals, they jus t in the government's view, I think in any court's view, in any jury's view, they don't fall into that.
Elena Kagan: Okay.
Elena Kagan: Thank you.
John G. Roberts, Jr.: Justice Gorsuch?
Neil Gorsuch: Counsel, you in your brief make the point that we have to interpret "rewarded" your way rather than your friend's way because, otherwise, we're going to have a superfluity problem. In a case we're going to hear in a couple of days, the government makes the opposite argument and says that -- I think it says overlap is not uncommon in criminal statutes, and, therefore, superfluity doesn't come into play. Which is it?
Colleen E. Roh Sinzdak: So I think that, certainly, sometimes there is superfluity in a statute.
Colleen E. Roh Sinzdak: There's belt and suspenders.
Neil Gorsuch: Yes.
Colleen E. Roh Sinzdak: The reason not here, Justice Gorsuch --
Neil Gorsuch: Yeah.
Neil Gorsuch: Why -- why -- why does it matt er here, but it doesn't two days from now?
Colleen E. Roh Sinzdak: So the reason that it matters in this case -- and I can't, of course, speak for other cases -- but the reason it matters to this case is that, well, because I'm here about this case.
Colleen E. Roh Sinzdak: So the reason is that --
Neil Gorsuch: Well, you represent the government of the United States, which I would hope would take consistent positions across cases.
Colleen E. Roh Sinzdak: We -- and we --
Neil Gorsuch: So, counsel --
Colleen E. Roh Sinzdak: Let me explain to you why we are.
Neil Gorsuch: Thank you.
Colleen E. Roh Sinzdak: So Congress added the term, added "intended to be influenced or rewarded" in 1986, so there, adding the "rewarded" to what would otherwise have been language closely top -- closely tracking Section 201(b), they clearly were trying to add something to cover more, to cover additional material.
Colleen E. Roh Sinzdak: So, there, when we have Section 201(b), which would be the example of what you would do if you wanted to cover only the type of quid pro quo bribery that Petitioner is talking about, they had that, but they didn't just take 201(b) and plop it into Section 666.
Colleen E. Roh Sinzdak: Instead --
Neil Gorsuch: I got it.
Colleen E. Roh Sinzdak: -- they added "rewarded."
Neil Gorsuch: Counsel, I -- I got it.
Neil Gorsuch: I got it, okay? And earlier this term the government argued that it would defy common sense for Congress not to have required more serious sentences for more serious crimes in Pulsifer.
Colleen E. Roh Sinzdak: Mm-hmm.
Neil Gorsuch: And that -- that -- that argument prevailed. Here, you're suggesting that it makes sense for the more serious offense of bribery and the le ss -- lesser offense of receiving a gratuity to receive the same punishment.
Neil Gorsuch: Can you -- can you reconcile that one for me?
Colleen E. Roh Sinzdak: Of course, the government looks first to the text, and we know that the text here says that the 10-year penalty it did in 1984 when Petitioner acknowledges that it undisputedly covered gratuities. But I -- I can give you a historical reason why I think we have that, you know, the two years under 1962 and the -- and the 10-year maximum.
Neil Gorsuch: That that wasn't --
Colleen E. Roh Sinzdak: -- and the 10-year maximum --
Neil Gorsuch: That wasn't my question.
Neil Gorsuch: Why would -- why would both bribery and receipt of a gratuity have the same 10-year sentence here and we should ignore that, but we were supposed to take cognizance of that kind of issue just last month?
Colleen E. Roh Sinzdak: Because Section 666 was enacted as part of the 1984 Crime Control Act, which also enacted the sentencing guidelines. And so Congress was moving from a situation where -- as it had in 201, it was specifying specific sentences for specific -- for specific law -- types of breaking of a law.
Colleen E. Roh Sinzdak: So there's 201(b).
Colleen E. Roh Sinzdak: It had the two-year maximum for that. In 1984, Congress is doing sentencing guidelines, so it's saying we're going to have, you know, a maximum but we're not going to worry about that because we're going to have mandatory guidelines that are going to take care of this. And then, In fact, if you look, Section 666 is listed both --
Neil Gorsuch: Well, the mandatory --
Colleen E. Roh Sinzdak: -- under the gratuity guidelines --
Neil Gorsuch: -- guidelines argument was the same point that was made in Pulsifer, and you -- you said that wasn't enough there.
Colleen E. Roh Sinzdak: So just -- just to finish my point, if you look at the guidelines, the -- there is a gratuity guideline that applies to Section 666.
Colleen E. Roh Sinzdak: There is a bribery guideline that applies to Section 666.
Colleen E. Roh Sinzdak: Under the gratuity guidelines, people are not getting more than two-year sentences.
Colleen E. Roh Sinzdak: And Petitioner hasn't pointed to anywhere that has happened.
Neil Gorsuch: Okay.
Neil Gorsuch: Last one. And it -- this is circling back to Justice Kagan.
Neil Gorsuch: And, again, put aside the -- the question about "corruptly." It seems to me that -- that the major safeguard that you pointed to in that discussion was the $5,000 threshold.
Neil Gorsuch: Is that right? The $10,000 threshold and the 5,000 threshold?
Colleen E. Roh Sinzdak: I think the bona fide salary exception is pretty important.
Neil Gorsuch: Okay.
Neil Gorsuch: Okay, got that.
Neil Gorsuch: Okay. With respect to those thresholds, the government seems to have argued that they're satisfied pretty easily.
Neil Gorsuch: In connection with business of an organization, the government has argued that we can take account of the salary of police officers, which are obviously more than $5,000.
Neil Gorsuch: So because the Police Department receives $10,000 and the police officer makes more than $5,000, any gift of any value would seem to qualify.
Neil Gorsuch: What am I missing there?
Colleen E. Roh Sinzdak: No, that's not quite right.
Colleen E. Roh Sinzdak: So I think you're talking about the case in which there was a -- a drug dealer who was giving, I think $1,000 --
Neil Gorsuch: No, I'm not talking --
Colleen E. Roh Sinzdak: I mean, that is the -- the case which -- yes.
Neil Gorsuch: That's the case where the Seventh Circuit said that --
Colleen E. Roh Sinzdak: Right.
Neil Gorsuch: -- $5,000 is satisfied by the police officer's salary.
Colleen E. Roh Sinzdak: Right.
Neil Gorsuch: That's true.
Colleen E. Roh Sinzdak: And the reason was because they were counting up how many salary hours the police officers would have spent, and they were evaluating that.
Colleen E. Roh Sinzdak: So it wasn't just kind of like a police officer makes more than $5,000.
Neil Gorsuch: So any time an employee at hospital does more than $5,000 worth of work on behalf of a patient, or a teacher spends more than $5,000 worth of time with a student, then that -- that -- that threshold would be satisfied in the government's view?
Colleen E. Roh Sinzdak: Where the specific transaction and business is worth more than $5,000, yes.
Neil Gorsuch: Okay.
Neil Gorsuch: Thank you.
John G. Roberts, Jr.: Justice Kavanaugh?
Brett M. Kavanaugh: You -- you've said several times, I think, that some gratuities, some thank -yous should be proscribed, either because of the appearance problem they present, government officials getting payments like that, or because they're suggestive of something more nefarious that might also be going on with respect to the government official. And now, I -- there's widespread agreement on that, I think.
Brett M. Kavanaugh: And I certainly do as well agree on that.
Brett M. Kavanaugh: I think there a re two issues here you need to deal with, though.
Brett M. Kavanaugh: I'm going to come back to them. One is we're talking about state and local officials who might have different state and local rules than what the federal government is going to come in and superimpose on them. The second issue is the word "corruptly." And you said, I think, that the word "corruptly" was a break on an otherwise broad statute, and so it's a good thing here, right? And I accept that, but the problem is the word "corruptly" then creates enormous uncertainty and vagueness about where the line is drawn.
Brett M. Kavanaugh: And so when you have state and local officials who have one set of rules they think they're following, coupled with a vague federal line that they have no idea where that's drawn, and it's up to 10 years in prison, that's a problem. MS.
Brett M. Kavanaugh: SINZDAK: So I think to -- to alleviate that concern, it is consciousness of wrongdoing.
Brett M. Kavanaugh: So if there's uncertainty, if there's uncertainty about whether accepting that reward is wrongful, the government isn't going to be able to prove that the person had this consciousness of wrongdoing.
Brett M. Kavanaugh: So I think --
Brett M. Kavanaugh: Well, you nicely anticipated my next question, which is to drill down again, and you did with Justice Sotomayor, on "wrongful." And Justice Gorsu ch as well. I think it's your backup position.
Brett M. Kavanaugh: I think you said you could live with it.
Brett M. Kavanaugh: But I'm going to make sure I've got it.
Brett M. Kavanaugh: An instruction that says you're -- you're only guilty under this statute, paraphrasing, if you -- if the conduct was unlawful under state or local law?
Colleen E. Roh Sinzdak: Can I live with that?
Brett M. Kavanaugh: Are you okay with that?
Colleen E. Roh Sinzdak: Over cutting out gratuities entirely? I mean, yes, I'm going to take the -- the -- the narrower statutory surgery.
Brett M. Kavanaugh: And knew that it was unlawful? Because you've said consciousness of wrongdoing.
Colleen E. Roh Sinzdak: Yes.
Brett M. Kavanaugh: So consciousness of illegality.
Brett M. Kavanaugh: In other words, this statute would be narrowed to a situation where it was unlawful under state or local law and you knew it was unlawful under state or local law to take that gratuity.
Brett M. Kavanaugh: That's your -- I mean --
Colleen E. Roh Sinzdak: Yes.
Brett M. Kavanaugh: That's better from your perspective than --
Colleen E. Roh Sinzdak: That's absolutely better. I think it might be worse for some defendants where the state or local law had some ticky-tacky requirement that they just couldn't possibly have known was -- was really wrongful. So I think this is actually less protective in some ways, but I'm certainly willing to live with it.
Brett M. Kavanaugh: Well, that may indicate that ev en the backup position is no good.
Brett M. Kavanaugh: But that's a --
Colleen E. Roh Sinzdak: No, I don't -- I don't --
Brett M. Kavanaugh: -- you're arguing against yourself there a little.
Colleen E. Roh Sinzdak: No, I -- I don't think so.
Colleen E. Roh Sinzdak: Again, the very worst is -- I -- I think what you could be saying is that, you know, we know that gratuities are barred under Section 201(c) with no corruptly mens rea.
Colleen E. Roh Sinzdak: I mean, if you think that corruptly can't be --
Brett M. Kavanaugh: But I'm going to -- can I just --
Colleen E. Roh Sinzdak: -- adding anything --
Brett M. Kavanaugh: Can I just stop you there?
Colleen E. Roh Sinzdak: -- then we both go to Section 201(c).
Brett M. Kavanaugh: That lends to the clarity point.
Brett M. Kavanaugh: And it's clear there, but here when you put "corruptly" in, now you don't know where the line is.
Brett M. Kavanaugh: You don't know if the concert tickets, the game tickets, the gift card to Starbucks, whatever, where is the line, and so there's vagueness.
Brett M. Kavanaugh: That creates the problem that -- there is here.
Colleen E. Roh Sinzdak: No, I -- I disagree.
Brett M. Kavanaugh: And you -- and you say -- this is my last question.
Brett M. Kavanaugh: You said these fringe cases, as compared to this case.
Brett M. Kavanaugh: I -- I think the, quote, "fringe cases" are the every day concern.
Colleen E. Roh Sinzdak: Again, there's a requirement of consciousness of wrongdoing.
Colleen E. Roh Sinzdak: So if the person couldn't know that this behavior was wrongful because it was unclear, because there are some line-drawing difficulties, because some people think this is wrong and some people think it's right, then the government isn't going to be able to meet its burden of proof.
Brett M. Kavanaugh: Well, that's --
Colleen E. Roh Sinzdak: So it's not introducing vagueness.
Brett M. Kavanaugh: Well, you're -- you're sitting in a criminal courtroom, you know, you're a -- you're a regular, you know, police officer or a local official, you've depleted your money, you've -- to defend yourself, you're -- you've lost your job because you're prosecuted, and it's like, oh, well, the good news is they won't be able to meet my -- the burden of proof because some people thought it was okay to do this?
Colleen E. Roh Sinzdak: No.
Colleen E. Roh Sinzdak: I mean, prosecutors have a responsibility not to bring prosecutions that don't meet the statute.
Colleen E. Roh Sinzdak: And what I'm saying is that the statute prevents that kind of prosecution.
Colleen E. Roh Sinzdak: So it's a -- it's a -- it's a -- it's what Congress said, we don't want to reach innocuous conduct.
Colleen E. Roh Sinzdak: We want to make sure.
Colleen E. Roh Sinzdak: We were going to put in a mens rea that makes sure that you understand that what you're doing is wrongful and you do it anyway.
Colleen E. Roh Sinzdak: That's the nature of this mens rea.
Colleen E. Roh Sinzdak: It's a break.
Brett M. Kavanaugh: Thank you.
John G. Roberts, Jr.: Justice Barrett?
Amy Coney Barrett: Okay.
Amy Coney Barrett: So I'm increasingly worried about the scope of the government's position.
Amy Coney Barrett: I -- I'd like you to tell me how your backup position that you were just talking about with Justice Kavanaugh works for the private university or the private hospital employee that Justice Ka gan was pointing out satisfies the grant amount.
Amy Coney Barrett: And I'll say, you know, as Justice Gorsuch pointed out, I don't think that the nexus requirements or the $5,000 requirement does a whole lot of work.
Amy Coney Barrett: And, you know, for the surgery, the employee's time, or the police officer's time, working your case or the professor's time spending like -- trust me, tutoring is expensive.
Amy Coney Barrett: I've paid a lot of tutoring bills. You know, the professor is spending all this extra time, you know, out -- outside of class. So if state and local laws -- I mean, I assume you're encompassing ethics rules for state and local government employees in your answer to Justice Kavanaugh?
Colleen E. Roh Sinzdak: Yeah.
Amy Coney Barrett: So how does that cash out for the private people?
Colleen E. Roh Sinzdak: So if it's acceptable under those rules, I think, it's a safe harbor, is what we've been discussing.
Amy Coney Barrett: Right, but I'm saying that these ethics rules aren't going to apply in the private context to the car dealer, the private university, the private hospital that's swept in because of the federal funds.
Colleen E. Roh Sinzdak: Oh, I -- I don't think that's really necessarily true.
Colleen E. Roh Sinzdak: I think many entities like hospitals, research institutions, the entities that are actually being covered here, they do have ethics rules.
Colleen E. Roh Sinzdak: So there is going to be something to look at.
Colleen E. Roh Sinzdak: But also that they can certainly --
Amy Coney Barrett: But not the state and -- I guess -- let me just, like, pin you down.
Amy Coney Barrett: I'm not saying that they won't have ethics rules.
Colleen E. Roh Sinzdak: Mm-hmm.
Amy Coney Barrett: The hospitals, the universities, et cetera, they're going to have ethics rules.
Amy Coney Barrett: I don't know about the car dealerships. (Laughter.)
Amy Coney Barrett: But what I'm saying is if local -- state and local government rules don't apply to them, where do you look for your backup position? Is it like, you know, the university ethics rules, the hospital ethics rules?
Colleen E. Roh Sinzdak: I -- I think where I look is whether they had, you know -- I think the easiest thing is whether there would be concrete evidence that this was wrong.
Colleen E. Roh Sinzdak: So -- so, yes.
Colleen E. Roh Sinzdak: If their entity's rules barred the thing, then I think that's going to be pretty good evidence. If it's unclear, though, Justice Barrett, I just want to again tell you that there has to be a consciousness of wrongdoing. So if there just was nowhere they could look an d there was no way for them to know that taking the, you know, cashmere blanket for the tutoring was wrongful, then the government can't show consciousness of wrongdoing and it can't prosecute in that case.
Amy Coney Barrett: Can't show it? So -- but -- but you're kind of sliding I guess into the not backup position but the immoral or the this is unsavory or this is wrong?
Colleen E. Roh Sinzdak: No, they need to show that the person understood that what they were doing was wrongful.
Colleen E. Roh Sinzdak: So if they -- the government cannot show that what the person -- that the person understood what they were doing was wrongful, was against the law is the easiest way to show that, but if they don't have any laws to point to, if they don't -- just don't have any -- anything that they can point to, then they're not going to be able to prove that the person would know, would understand that what they're doing is wrongful.
Amy Coney Barrett: But under your first order position there wouldn't be anything to point to, right, because I thought your first order position -- like your backup is if it's proscribed by law.
Amy Coney Barrett: But I thought your first order position was if it's wrong, if it's immoral, if people would know this is corrupt.
Colleen E. Roh Sinzdak: So our -- our position is just -- just -- let me be clear, it's th at the act has to be wrongful and the person has to have consciousness of wrongdoing.
Colleen E. Roh Sinzdak: That requirement of consciousness of wrongdoing, we recognize that.
Colleen E. Roh Sinzdak: That's not a backup position. That's a first order.
Amy Coney Barrett: No, no.
Amy Coney Barrett: I know --
Colleen E. Roh Sinzdak: Right.
Amy Coney Barrett: I know, but I'm saying like you said if the person doesn't have any place to look to know that it's wrongful and I'm saying that I thought that your first order position was that they don't have a specific place to look because you should know it's immoral, you should know it's wrong.
Colleen E. Roh Sinzdak: I -- I think that the government can certainly -- I think it's going -- the government has to say this is something that is so obviously wrongful that everyone would know. And I would say that in the circumstances you're pointing to, the government isn't going to take that position.
Colleen E. Roh Sinzdak: They're not going to be able to say that just because -- you know, that -- it has to be obviously wrongful because what they're saying is we don't have evidence to demonstrate that this specific person knew what -- that what they were doi ng was wrongful. But this is something that is just so obviously inherently unlawful or -- not unlawful, I don't want to confuse things -- inherently wrongful that the person would be bound to know. And I agree with you that when it's something that is either permitted by ethics rules or it's just never governed by ethics rules, this isn't something that people even think about in the ethics world maybe because cookies are just so, you know, obvious, then there's just -- the government -- that -- that -- there isn't going to be that consciousness of wrongdoing. The government isn't going to be able to show and they're not -- and -- and therefore the statute does not cover that -- that person because they do not understand that it is wrongful.
John G. Roberts, Jr.: Justice Jackson?
Ketanji Brown Jackson: So I guess I'm just totally confused in a lot of ways because I -- I had understood this case to be about a totally different part of the statute.
Ketanji Brown Jackson: So -- by what I mean is that suddenly it seems as though it's becoming a vehicle to investigate the corruptly solicits or demands element as opposed to the influenced or rewarded element. And I read the question presented to be about reward, like what does reward mean, you know, the -- the Petitioner's statement of the question presented is whether 666 criminalizes gratuities without any quid pro quo agreement to take those actions. So I thought we were looking at reward and determining whether or not you needed a quid pro quo.
Ketanji Brown Jackson: But it sounds like there's a lot of concern about the corruptly element. So can I ask you, do we need to take a position on corruptly here to rule in your favor on the question presented in this case?
Colleen E. Roh Sinzdak: No.
Colleen E. Roh Sinzdak: To rule in our favor you just have to look and say that rewarded obviously encompasses rewards that are accepted without a beforehand agreement.
Ketanji Brown Jackson: All right.
Ketanji Brown Jackson: And if we were going to think about corruptly, I guess I'm trying to understand how this case on these facts even really presents that issue. I mean, I understand all of these hypotheticals about the blankets and the Starbucks and the, you know, the -- the -- the gray areas around where people could say is thi s person really acting corruptly. But was there a dispute in this case that it was corrupt for this official to -- if he was taking a reward, to receive the $13,000 under these circumstances?
Colleen E. Roh Sinzdak: No.
Colleen E. Roh Sinzdak: And that's generally the way these cases go.
Colleen E. Roh Sinzdak: It's not someone saying I took a reward, but I thought it wasn't wrongful, so it's not someone disputing the consciousness of wrongdoing point.
Colleen E. Roh Sinzdak: It's someone saying I wasn't taking a reward, I was taking something for being friends --
Ketanji Brown Jackson: And that's -- so that's --
Colleen E. Roh Sinzdak: I was taking something for --
Ketanji Brown Jackson: -- how --
Colleen E. Roh Sinzdak: -- compensation, that's right.
Ketanji Brown Jackson: That's how that came up here.
Colleen E. Roh Sinzdak: Exactly.
Ketanji Brown Jackson: So that's why in response to Justice Sotomayor this wasn't a question that was put to the jury about -- like this is why it's not in the jury instructions, this question of what is the definition of corruptly because he essentially conceded that element for the purpose of this case?
Colleen E. Roh Sinzdak: Right.
Colleen E. Roh Sinzdak: He did not challenge the jury instructions on corruptly, even though the district -- the district court had already rejected the request to narrow the statute to gratuities, so it's not true that he didn't protest the corruptly definition because he was trying to get to -- to get at it a different way, right? The -- the district court had already said gratuities are going to come in.
Colleen E. Roh Sinzdak: He doesn't contest the corruptly jury instruction here because he wasn't saying it's rightful to accept the --
Ketanji Brown Jackson: Right.
Ketanji Brown Jackson: He wasn't in the gray area scenario where people could say --
Colleen E. Roh Sinzdak: Exactly.
Ketanji Brown Jackson: -- well, I thought this was right.
Ketanji Brown Jackson: He wasn't doing that.
Ketanji Brown Jackson: All right. So final question.
Ketanji Brown Jackson: With respect to the question I asked Ms. Blatt, if we hold constant the corruptly aspect of this, the demand aspect of this, we assume that's all met and now we're really just focusing on reward, intended to be influenced or rewarded, could -- can you articulate why Congress would not have wanted rewarded to include these gratuities? In other words, it seems as though that element is equating bribes, quid pro quo bribes with rewards.
Ketanji Brown Jackson: What I'm thinking of is gratuities in this context. If we agree with Petitioner, it sounds as though there -- Congress would have wanted to prohibit one and not the other.
Ketanji Brown Jackson: And I can't figure out why that would be.
Colleen E. Roh Sinzdak: I -- I can't either because, again, gratuities have long been recognized to be as corrupt as rewards in many circumstances.
Colleen E. Roh Sinzdak: We have the bar on gratuities in our Constitution itself.
Colleen E. Roh Sinzdak: We have Blackstone saying that the acceptance of gratuities is -- is -- is -- is -- is corrupt and that, you know, the Romans were wrong to permit it. We have Congress barring not just bribery but also the -- the acceptance of gratuities without the corruptly mens rea in Section 201.
Colleen E. Roh Sinzdak: So there's just no reason.
Colleen E. Roh Sinzdak: And -- and that's not because Congress was like an overly -- overly moral being in this respect. It's because it's the same harm. If there's a beforehand agreement in this case, it doesn't change anything because it's crystal clear that what the Petitioner was doing was taking a public act intending to get that reward. And -- and whether there's a beforehand agreement or not, the harm is instead of doing the public act for the public good, he's doing the public act for his own -- to line his own pockets.
Ketanji Brown Jackson: Thank you.
John G. Roberts, Jr.: Thank you, counsel.
John G. Roberts, Jr.: Rebuttal, Ms. Blatt.
Lisa S. Blatt: Thank you, Mr. Chief Justice. I mean, at least we should get a 9/0 remand because everything that we heard today was not charged to the jury.
Lisa S. Blatt: It is truly -- as a former government lawyer -- baffling how someone could just say that it was not contested, that this was wrongful. No citation.
Lisa S. Blatt: Of course it was contested.
Lisa S. Blatt: The whole argument was this was a legitimate consulting agreement because local officials don't make any money. And just because the government says it at argument doesn't make it true, especially when they don't have a citation.
Lisa S. Blatt: There was no jury instruction.
Lisa S. Blatt: And then at times I feel like we're in a Senate room drafting language. She literally said, here's what the guidelines are going to look like going forward. What we're going to do is we're going to isolate wrongfulness, we're going to talk about if it appears for public sale on and on and on and then she said consciousness of wrongdoing 36 times. Consciousness of wrongdoing has never appeared and here's where if we're going to look at text, guess what, corruptly applies to bribery.
Lisa S. Blatt: It has to mean the same thing. Corruptly as a consciousness of wrongdoing has never been the mens rea for bribery. And so now every single prosecution for bribery, I guess a defendant is entitled to an instruction -- I didn't know what I was doing was wrongful.
Lisa S. Blatt: I didn't know it was unlawful. My hospital said I could do this.
Lisa S. Blatt: No.
Lisa S. Blatt: She wants a separate rule for corruptly. And to say that it's not part of the case is absurd.
Lisa S. Blatt: Corruptly means quid pro quo. Intending to be influenced and intending to be rewarded are parts of that quid pro quo. The other thing I just want to get to, and Justice Kavanaugh got on this, there is a statute that she -- that -- the statute applies to accepting.
Lisa S. Blatt: It also applies to anyone who gives.
Lisa S. Blatt: That's 666(a)(2).
Lisa S. Blatt: So 300 million Americans are covered by this. Anyone who gives a gift commits a crime if it's corrupt.
Lisa S. Blatt: Now that consciousness of wrongdoing has to apply to the person who goes to the car dealership or to the billionaire or the poor person who wants to give a toy -- a toy truck. And then she said well, I guess it's standard practice, and you have to ask for it and be for sale.
Lisa S. Blatt: You see something, you say, you know, I like your water bottle, it's got that, you know, nice little Apple logo.
Lisa S. Blatt: Here, take it.
Lisa S. Blatt: Gratuity, you just give your job away for sale.
Lisa S. Blatt: You literally said, you know, you want it, you can have it or they asked for it. I mean, this is -- this is preposterous that this would go into inherently wrongful.
Lisa S. Blatt: I still can't figure out what about escort services.
Lisa S. Blatt: That seems not standard practice to give that to your university admissions.
Lisa S. Blatt: But maybe a plaque would be? Or maybe a crystal -- a crystal would be.
Lisa S. Blatt: There's just -- there's literally no guidance here. And the real irony is at least the banking officials would have more guidance. This is just kind of made up as -- as like it sounds like in moot court they worked this out because it would sound good. The stuff on the lesser included and greater -- greater included was gibberish.
Lisa S. Blatt: It is a -- recognized in government manuals that this is a greater included offense. And she said, well, it only applies to "demand." But the statute says "demand or agrees to accept." So if you agree to accept something, you don't have to demand.
Lisa S. Blatt: That's clearly a bribery.
Lisa S. Blatt: There is no set of circumstances where, if you've proved -- proved a reward, you would ever need to prove a bribery.
Lisa S. Blatt: And that's why the government manual says go for -- go for broke, go for both.
Lisa S. Blatt: All you need to do is prove one, and you at least get, at least in the federal officials, a two- year conviction.
Lisa S. Blatt: Here you get a 10 -year conviction.
Lisa S. Blatt: The government sought six years here.
Lisa S. Blatt: We've showed examples where they've -- they prosecuted for four years. And the other things in terms of the line drawing, I don't know why "can I get a ride in the Uber" would not count because that's asking for, you know, part of -- part of a -- a value.
Lisa S. Blatt: And this definition of consciousness of wrongdoing, I don't think it gives anybody any guidance whatsoever about what happens day in and day out.
Lisa S. Blatt: So at least we get a remand. And -- and, Justice Sotomayor, on the harmless error under Nader, I'm not sure why she said evident sufficiency.
Lisa S. Blatt: The standard is beyond a reasonable doubt.
Lisa S. Blatt: They'd have to show the jury instruction, and so there would have to be overwhelming evidence of bribery.
Lisa S. Blatt: And so that would have to be worked on a remand.
Lisa S. Blatt: But none of this was in the jury instruction.
Lisa S. Blatt: It was adequately yelling to the -- the top of the roof that this could only apply to gratuity, i.e., gratuities were not wrongful. Thank you.
John G. Roberts, Jr.: Thank you, counsel.
John G. Roberts, Jr.: The case is submitted.