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*fn*: February 22, 1984.



Marshall, J., delivered the opinion of the Court, in which Burger, C. J., and White, Blackmun, and Powell, JJ., joined. O'connor, J., filed a dissenting opinion, in which Brennan, Rehnquist, and Stevens, JJ., joined, post, p. 501.

Author: Marshall

[ 465 U.S. Page 484]

 JUSTICE MARSHALL delivered the opinion of the Court.

These consolidated cases present the question whether officers of a private, nonprofit corporation administering and expending federal community development block grants are "public officials" for purposes of the federal bribery statute. 18 U. S. C. § 201(a).


In 1979, the city of Peoria received two federal block grants from the Department of Housing and Urban Development (HUD). The first was a $400,000 Community Development Block Grant; the second a $638,000 Metro Reallocation Grant. Both grants were funded through the Housing and Community Development Act of 1974 (HCDA), 88 Stat. 633, as amended, 42 U. S. C. §§ 5301-5320 (1976 ed. and Supp. V). Under that Act, the Secretary of HUD is authorized to dispense federal block grants to state and local governments and nonprofit community organizations for urban renewal programs such as the rehabilitation of residential structures, code enforcement in deteriorating areas, and the construction of public works projects.

The city of Peoria subsequently designated United Neighborhoods, Inc. (UNI), a community-based, social-service organization, to be the city's subgrantee in charge of the administration of the federal block grant funds.*fn1 UNI in turn hired petitioner Dixson to serve as the corporation's Executive Director and petitioner Hinton as its Housing Rehabilitation Coordinator. Petitioner Dixson was responsible for the general supervision of UNI's programs, including fiscal control and execution of contracts. Petitioner Hinton's duties included contracting with persons applying for housing rehabilitation assistance, and contracting with demolition firms.

[ 465 U.S. Page 485]

     A federal grand jury named petitioners in an 11-count indictment filed on March 12, 1981. The indictment charged that petitioners, as "public officials" under 18 U. S. C. § 201(a), had sought a series of bribes in return for "being influenced in their performance of an official act in respect to the awarding of housing rehabilitation contracts" in violation of 18 U. S. C. §§ 201(c)(1),(2).

According to the Government's evidence at trial, petitioners used their positions to extract $42,694 in kickbacks from contractors seeking to work on UNI's housing rehabilitation projects. One contractor testified how he was approached by petitioner Hinton and persuaded to pay petitioners 10 percent of each housing rehabilitation contract that petitioners awarded him. The contractor explained that on 10 occasions, he received first draw checks from UNI for 20 percent of the contract price, deposited the check at his bank, and paid half the amount of the check in cash to petitioners. A second contractor testified as to substantially the same arrangement.

Before trial, petitioners moved to dismiss the indictment on the grounds that they were not "public officials" within the meaning of the federal statute. Their motions were denied, and following a jury trial in the United States District Court for the Central District of Illinois, petitioners were convicted as charged. The District Court sentenced each to 7 1/2 years' imprisonment, to be followed by 3 years' probation. Petitioners appealed to the United States Court of Appeals for the Seventh Circuit, which affirmed. 683 F.2d 195 (1982). Both petitioners filed petitions for writs of certiorari, and we granted the writs. 459 U.S. 1085 (1982). We now affirm.


Petitioners' sole claim is that they were not "public officials" within the meaning of 18 U. S. C. § 201(a) and therefore not subject to prosecution under the federal bribery

[ 465 U.S. Page 486]

     statute.*fn2 Since our disposition of this claim turns on the relationship between petitioners and the Federal Government, we begin our discussion with an analysis of the HCDA block grant program and petitioners' role in administering that program.

Congress passed the HCDA to meet the social, economic, and environmental problems facing cities. 42 U. S. C. § 5301(a) (1976 ed. and Supp. V). The primary objective of the Act is "the development of viable urban communities." § 5301(c). While the HCDA addressed a national problem, Congress enacted the legislation as a federal block grant statute, under which the day-to-day administration of the federal program, including the actual expenditure of federal funds, is delegated to state and local authorities.

The HCDA creates a "consistent system of Federal aid," § 5301(d), by distributing funds committed by Congress through organizations outside the Federal Government, while

[ 465 U.S. Page 487]

     retaining federal control to assure compliance with statutory federal objectives and implementing regulations. Congress itself specified the 17 categories of community projects upon which HCDA grants can be spent. § 5305. Within the federal constraints, grant recipients design programs addressing local needs. To obtain federal funds, local communities must submit to the Secretary a plan made in accordance with national urban growth policies, and supplement the plan with annual performance reports. §§ 5304(a), (d). The Federal Government retains the right to audit the records of HCDA programs, § 5304(e), and to recover improperly expended funds. § 5311(b)(2).

HCDA grantees give assurances to HUD that they, and their subgrantees, will abide by specific financial accountability, equal opportunity, fair labor, environmental, and other requirements. §§ 5304, 5309, 5310; 24 CFR § 570.307 (1983). By administering HCDA funds, private nonprofit organizations subject themselves to numerous federal restrictions beyond those imposed directly by HUD. Like other recipients of federal grant funds, HUD grantees and subgrantees are subject to a uniform audit procedure, adopted by the Federal Government as "an integral element" of "full accountability by those entrusted with the responsibility for administering the programs."*fn3

UNI voluntarily assumed the status of an HCDA subgrantee when UNI and the city of Peoria signed five separate grant agreements in March and October 1979, pursuant to

[ 465 U.S. Page 488]

     which UNI hired petitioners. Under the first four of these agreements, the city promised to provide UNI with $492,500, and UNI committed itself to spend these funds on urban renewal projects and related administrative costs, such as salaries and fringe benefits for UNI employees. The agreements specifically allocated funds to petitioners' salaries: $16,000 of the city grants was for UNI's Executive Director and $15,500 was for a Rehabilitation Coordinator.

[ 465 U.S. Page 489]

     In a fifth agreement, Peoria promised UNI another $669,200 to be used "solely for a program operated by UNI which provides loans and grants to the rehabilitation of residential housing units in the designated Metropolitan Reallocation Grant Area." One anomaly in the five Peoria-UNI contracts is that, beyond this reference to the "Metropolitan Reallocation Grant Area" and to "312 loans,"*fn4 none of these first contracts explicitly refers to the federal Act or to UNI's new status of subgrantee.*fn5 UNI's application to participate in the federally funded program, however, unequivocally shows UNI's awareness of the Federal Government's relationship to, and interest in, the grant agreements. UNI's proposal to Peoria stated: "[We] wish to undertake a joint effort with the City of Peoria to achieve the common goals as set forth in the Housing and Community Development Page 489} Act to insure safe, sanitary and decent housing for all people." Record, Govt. Exh. 19. (Emphasis added.)

Moreover, there is no suggestion in the record that petitioners and other UNI executives failed to understand that they were involved in a federal program. As described above, the task of distributing HCDA funds is governed in numerous respects by federal statutes and regulations. Knowledge of the existence and applicability of these federal requirements and guidelines is presumed as a matter of law.*fn6 As a matter of fact, the federal interest in protecting the integrity of its block grant funds undoubtedly was driven home to petitioners when, in early 1980, in the midst of the period covered by the Government's indictment, Arthur Andersen & Co. conducted an audit of UNI's records in accordance with HUD's Audit Guide and Standards for Community Development Block Grant Recipients.

Petitioners' responsibilities included receiving applications for housing assistance and soliciting contractor bids for qualified rehabilitation proposals. According to UNI's organizational structure, petitioners were supposed to submit the bids on qualified proposals to UNI's Housing Committee for final approval, but, in fact, the Committee's review was a "mere formality."*fn7 As a practical matter, petitioners alone decided which property owners and contractors in the city of Peoria would be the beneficiaries of the federal funds made available to the city through the HCDA block grant program.


Petitioners contend now, as they have throughout this litigation, that, as executives of a private nonprofit corporation unaffiliated with the Federal Government, they were never

[ 465 U.S. Page 490]

     "public officials" as Congress defined that term. 18 U. S. C. § 201(a).

Under § 201(a), the term "public official" includes "an officer or employee or person acting for or on behalf of the United States, or any department, agency or branch of Government thereof, . . . in any official function, under or by authority of any such department, agency, or branch of Government." There being no basis for claiming that petitioners were officers or employees of the United States, the Government's sole contention is that petitioners acted "for or on behalf of" the United States "in an official function" under the authority of HUD.

Petitioners argue that they cannot be considered to have acted "for or on behalf of the United States" because neither they nor their employer UNI ever entered into any agreement with the United States or any subdivision of the Federal Government. In advancing this position, petitioners rely primarily on two Second Circuit decisions holding that a New York City employee involved in the administration of the federal Model Cities Program was not a public official under § 201. United States v. Loschiavo, 531 F.2d 659 (1976); United States v. Del Toro, 513 F.2d 656, cert. denied, 423 U.S. 826 (1975). Petitioners and these Second Circuit decisions rest on the premise that an individual does not work "for or on behalf of the United States . . . in any official function" without some formal bond with the United States, such as an agency relationship, an employment contract, or a direct contractual obligation.

The Government, in response, argues that the term "public official" has a broader sweep, covering not only parties in privity with the United States, but also any private individuals responsible for administering federally funded and federally supervised programs. The Government defends the decision of the Seventh Circuit in the instant cases which held that the "substantial federal supervision over the cities and all sub-grantees responsible for local distribution of grant funds" made petitioners' public officials for purposes of § 201.

[ 465 U.S. Page 491683]

     F.2d, at 197-198. The court reasoned that petitioners "were acting as federal agents in the sense of having discretion in administering the expenditure of federal funds." Id., at 199.

As is often the case in matters of statutory interpretation, the language of § 201(a) does not decide the dispute. The words can be interpreted to support either petitioners' or the Government's reading. We must turn, therefore, to the legislative history of the federal bribery statute to determine whether these materials clarify which of the proposed readings is consistent with Congress' intent. If the legislative history fails to clarify the statutory language, our rule of lenity would compel us to construe the statute in favor of petitioners, as criminal defendants in these cases. See Rewis v. United States, 401 U.S. 808, 812 (1971).


Congress passed the current federal bribery provisions, including § 201(a), in 1962, as part of an effort to reformulate and rationalize all federal criminal statutes dealing with the integrity of government. At the time of the 1962 revisions, general federal bribery statutes had been in existence for more than a century. From the start, Congress drafted its bribery statutes with broad jurisdictional language,*fn8 and

[ 465 U.S. Page 492]

     periodically amended the provisions to ensure that the scope of federal criminal liability kept pace with the growth and diversification of the Federal Government.*fn9 Prior to 1962, in recognition of Congress' apparent desire for the federal bribery statutes to have wide application, the federal judiciary interpreted the statutes and, indeed, the phrase "person acting for or on behalf of the United States" to have a broad jurisdictional reach.*fn10

When drafting § 201(a), Congress was aware of previous federal bribery statutes, as well as the judicial interpretation given those statutes. The phrase at issue here -- "person

[ 465 U.S. Page 493]

     acting for or on behalf of the United States" -- was taken directly from predecessor bribery statutes.*fn11 Moreover, the reenactment of this language was no happenstance. Earlier versions of the 1962 statute omitted the phrase, but Department of Justice testimony that "its removal would be undesirable" convinced Congress to retain the language.*fn12

Standing alone, Congress' purposeful retention of the "acting for or on behalf of the Government" phrase does not advance our inquiry into the scope and meaning of those words. When, however, we compare the phrase as enacted with the proposed definition of "public official" in earlier draft bills that were not enacted, we conclude that Congress could not have meant to restrict the definition, as petitioners argue, to those persons in an employment or agency relationship

[ 465 U.S. Page 494]

     with the Federal Government. Such persons were clearly covered by successive, rejected versions of the reform bill, which defined "public official" in pertinent part as "an officer, agent, or employee of the United States in the executive, legislative, or judicial branch of the Government, or of any agency."*fn13 If Congress intended courts to restrict their reading of the jurisdictional definition to persons in a formal employment or agency relationship with the Government, it would have had no reason to accede to the Department of Justice's urging to retain the "acting for or on behalf of" language.

Moreover, we find the legislative history of § 201(a) inconsistent with the view that the words "person acting for or on behalf of the United States" were added simply to bring within the jurisdiction of the federal bribery laws those individuals tied to the Federal Government by direct contractual obligations. Committee Reports from both Houses of Congress emphasized that the new bribery laws made "no significant changes of substance" and "would not restrict the broad scope of the present bribery statutes as construed by the courts." S. Rep. No. 2213, 87th Cong., 2d Sess., 4 (1962); H. R. Rep. No. 748, 87th Cong., 1st Sess., 17 (1961). Federal courts interpreting the federal bribery laws prior to 1962 had generally avoided formal distinctions, such as the requirement of a direct contractual bond, that would artificially narrow the scope of federal criminal jurisdiction. See n. 10, supra.

Of particular relevance to the instant case is the House Judiciary Committee's citation of the Second Circuit's decision in United States v. Levine, 129 F.2d 745 (1942), as an example

[ 465 U.S. Page 495]

     of how the judiciary had in the past properly construed the federal bribery laws. See H. R. Rep. No. 748, supra, at 17. The Levine decision involved the application of the 1909 bribery statute to a low-level official in a decentralized federal assistance program.*fn14 The defendant in Levine worked for a locally administered price stabilization program, the New York Metropolitan Milk Marketing Area,*fn15 and was responsible for receiving milk handlers' market surplus claims, and checking them for accuracy. Levine solicited a bribe from one of the handlers within his jurisdiction in return for his promise to prevent investigations of the claims.

Although hired by a Market Administrator who, in turn, had been appointed by the Secretary of Agriculture, Levine himself was neither employed by the United States nor paid with federal funds. Nevertheless, Levine's duties were critical to the proper administration of the federally assisted New York Milk Marketing Area. Because claims for payment were not rechecked by anyone else, his duties resulted in expenditures from the Federal Treasury. After reviewing

[ 465 U.S. Page 496]

     these facts, the Second Circuit concluded that, notwithstanding the absence of a direct contractual bond between the defendant and the United States, Levine's responsible position made him a "public official" for purposes of the federal bribery laws. 129 F.2d, at 747. By explicitly endorsing the Second Circuit's analysis in Levine, the House Judiciary Committee strongly intimated that the phrase "acting for or on behalf of the United States" covers something more than a direct contractual bond.

Congress' longstanding commitment to a broadly drafted federal bribery statute, its expressed desire to continue that tradition with the 1962 revisions, its affirmative adoption of the language at issue in this case, and the House Report's endorsement of the Second Circuit's reasoning in Levine, combine to persuade us that Congress never intended § 201 (a)'s open-ended definition of "public official" to be given the cramped reading proposed by petitioners. We agree with the Government that § 201(a) has been accurately characterized as a "comprehensive statute applicable to all persons performing activities for or on behalf of the United States," whatever the form of delegation of authority.*fn16 To determine whether any particular individual falls within this category, the proper inquiry is not simply whether the person had signed a contract with the United States or agreed to serve as the Government's agent, but rather whether the person occupies a position of public trust with official federal responsibilities. Persons who hold such positions are public officials within the meaning of § 201 and liable for prosecution under the federal bribery statute.


Given the structure of the HCDA program and petitioners' responsible positions as administrators of the subgrant, we

[ 465 U.S. Page 497]

     have little difficulty concluding that these persons served as public officials for purposes of § 201(a). As executives of UNI, petitioners had operational responsibility for the administration of the HCDA grant program within the city of Peoria. In allocating the federal resources made available to the city through the HCDA grant program, petitioners were charged with abiding by federal guidelines, which dictated both where and how the federal funds could be distributed. By accepting the responsibility for distributing these federal fiscal resources, petitioners assumed the quintessentially official role of administering a social service program established by the United States Congress.

Lest there be any doubt that Congress intended § 201(a) to cover local officials like petitioners, one need only compare petitioners to the defendant in Levine, whose conviction the House Judiciary Committee explicitly endorsed. See supra, at 494-496. Both Levine and petitioners worked in decentralized federal assistance programs. Both Levine and petitioners effectively determined who would be the beneficiary of federal dollars, and both solicited bribes to influence their official decisions. Levine held a position of public trust with official federal responsibilities: to collect and investigate the accuracy of data submitted by milk producers in support of their claims for federal subsidies. Petitioners held a position of public trust with official federal responsibilities: allocating federal resources, pursuant to complex statutory and regulatory guidelines, in the form of residential rehabilitation contracts. Indeed, in certain respects, petitioners performed duties that were more clearly "official" and more obviously undertaken "for or on behalf of the United States" than the responsibilities of the defendant in Levine. Where Levine was paid through a levy imposed on local businesses participating in the marketing order, petitioners' salaries were completely funded by the HCDA grant. Where Levine simply compiled data that were submitted to the Department of Agriculture for eventual disbursement, petitioners personally

[ 465 U.S. Page 498]

     bestowed the benefits of the HCDA program to residents of Peoria.



In concluding that employment by the United States or some other similarly formal contractual or agency bond is not a prerequisite to prosecution under the federal bribery statute, we are supported by the majority of recent decisions in the Federal District Courts and Courts of Appeals. In United States v. Hollingshead, 672 F.2d 751 (1982), the Ninth Circuit determined that an employee of the Federal Reserve Bank of San Francisco, which is a private banking institution, was a public official for purposes of § 201(a) because the employee was responsible for carrying out tasks delegated by a federal agency and was subject to substantial federal supervision. The defendant received bribes and kickbacks from independent contractors to influence him in making capital purchase requisitions. In short, like petitioners, he was in a position of responsibility, acting for or on behalf of the Federal Government in administering expenditure of federal funds. Similarly, in United States v. Kirby, 587 F.2d 876, 879-880 (1978), the Seventh Circuit ruled that two privately employed grain inspectors, licensed by the Department of Agriculture, were public officials because they had responsibility for implementing a warehouse licensing program established by Congress.*fn17 For analogous reasons, the

[ 465 U.S. Page 499]

     Federal District Court for the District of New Mexico found a state employee responsible for administering the Farmers Home Administration rural housing improvement grant program to be included within § 201(a). United States v. Gallegos, 510 F.Supp. 1112, 1113-1114 (1981). Again, the defendant's official duties in processing grant applications directly influenced the expenditure of federal funds. See also United States v. Mosley, 659 F.2d 812 (CA7 1981); Harlow v. United States, 301 F.2d 361 (CA5), cert. denied, 371 U.S. 814 (1962); United States v. Griffin, 401 F.Supp. 1222 (SD Ind. 1975), affirmance order sub nom. United States v. Metro Management Corp., 541 F.2d 284 (CA7 1976). But see United States v. Loschiavo, 531 F.2d 659 (CA2 1976); United States v. Del Toro, 513 F.2d 656 (CA2), cert. denied, 423 U.S. 826 (1975); United States v. Hoskins, 520 F.Supp. 410 (ND Ill. 1981).


By finding petitioners to be public officials within the meaning of § 201(a), we do not mean to suggest that the mere presence of some federal assistance brings a local organization and its employees within the jurisdiction of the federal bribery statute or even that all employees of local organizations responsible for administering federal grant programs are public officials within the meaning of § 201(a). To be a public official under § 201(a), an individual must possess some degree of official responsibility for carrying out a federal program or policy. Our opinion today is, therefore, fully consistent with Krichman v. United States, 256 U.S. 363

[ 465 U.S. Page 500]

     (1921), in which this Court ruled that a baggage porter, although employed by a federally controlled railroad, could not be said to have "acted for or on behalf of the United States" because the porter lacked any duties of an official character. Similarly, individuals who work for block grant recipients and business people who provide recipients with goods and services cannot be said to be public officials under § 201(a) unless they assume some duties of an official nature.

We recognize that the manner in which the HCDA block grant program combines local administration with federal funding initially creates some confusion as to whether local authorities administering HCDA grants should be considered public officials under the federal bribery statute.*fn18 However, when one examines the structure of the program and sees that the HCDA vests in local administrators like petitioners Hinton and Dixson the power to allocate federal fiscal resources for the purpose of achieving congressionally established goals, the confusion evaporates and it becomes clear that these local officials hold precisely the sort of positions of national public trust that Congress intended to cover with the "acting for or on behalf of" language in the bribery statute.*fn19 The Federal Government has a strong and legitimate

[ 465 U.S. Page 501]

     interest in prosecuting petitioners for their misuse of Government funds. As this Court has said in another, closely related context, grant funds to state and local governments "are as much in need of protection from [fraud] as any other federal money, and the statute does not make the extent of [grant moneys'] safeguard dependent upon the bookkeeping devices used for their distribution." United States ex rel. Marcus v. Hess, 317 U.S. 537, 544 (1943) (footnote omitted) (holding that one who contracts with a local governmental unit to work on federally funded projects can "cheat the United States" through the state intermediary).

Because we agree with the Seventh Circuit that petitioners were public officials under § 201(a), the judgment of the Court of Appeals is affirmed.

It is so ordered.


683 F.2d 195, affirmed.


The rule of lenity demands that "ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity." Rewis v. United States, 401 U.S. 808, 812 (1971). The Court concludes that congressional intent to include persons like petitioners within the coverage of 18 U. S. C. § 201 is clear enough to make the rule of lenity inapplicable. The statutory language admits of the Court's reading, and the case for that reading would be strong, though perhaps not persuasive, if § 201 were a civil statute. I differ with the Court in that I find the evidence of congressional intent too weak to meet the higher standard for resolving facial ambiguity against a defendant when interpreting a criminal statute. In my view, the evidence of intent offered by the Court's

[ 465 U.S. Page 502]

     opinion cannot carry the weight the Court places on it, and there is good reason to reject the Court's interpretation of the statute.


The language of § 201 and of its predecessors, as the Court's opinion points out, is intentionally broad. But that fact merely creates the interpretive problem -- it does not resolve it. Congress intended to carry forward the pre-1962 bribery statute when it enacted § 201, and it understood the coverage of the bribery law to be broad. See ante, at 491-493, 494-495. Moreover, the purpose of the statute was undoubtedly to proscribe bribery of all those who carry out a federal trust. Ante, at 496. To say that the statute is broadly aimed at all persons bearing a federal trust, however, is not to resolve the ambiguity over what constitutes a federal trust. Indeed, the statutory language -- "acting for or on behalf of the United States" -- is merely a formulation of the public trust idea, and the Court concedes that the statutory language can accommodate both petitioners' and respondent's views. Ante, at 491. The breadth of the language accordingly offers little help in defining the ambiguous coverage of the statute.

The legislative history likewise provides no significant support for the Court's reading of the statute. The critical statutory language has been a part of the federal bribery statute for more than 100 years. See ante, at 493, n. 11. Yet, as the Court's opinion indicates, Congress apparently has never specifically considered the statute's coverage of federal grant recipients. The legislative history is simply silent on the question to be answered in these cases.

The Court mentions the 1948 extension of the bribery statute and suggests that it is significant. Ante , at 492, n. 9. As the legislative history of that extension makes clear, the only specific purpose of the extension was to ensure coverage of persons acting for federally owned or controlled corporations. Ibid.; H. R. Rep. No. 304, 80th Cong., 1st Sess., A14

[ 465 U.S. Page 503]

     (1947). There is no reason to believe, and it would be exceedingly odd to suggest, that Congress thought of federal grant recipients generally, or of grant recipients that are state or local governments in particular, as somehow analogous to federally controlled corporations. Accordingly, the 1948 extension provides no support for reading the bribery statute to cover persons like petitioners.

The legislative history of § 201 from the 87th Congress, which enacted the current version of the statute, contains two items that bear on the meaning of the statute's "acting for . . ." language. The Court relies heavily on these two items. One, however, offers no support for the Court's reading, and the other offers support of, at best, weak and uncertain significance.

First, the Court notes, ante, at 494-495, that the House Judiciary Committee cited United States v. Levine, 129 F.2d 745 (CA2 1942), as an example of judicial construction of the statute. H. R. Rep. No. 748, 87th Cong., 1st Sess., 18 (1961). The Court concludes that this citation establishes congressional intent to include within the coverage of the bribery statute persons other than those with direct contractual bonds to the United States. Ante, at 496. That conclusion is surely correct. But saying that the class covered by the statute includes more than direct contractors does not begin to define the class actually covered and, in particular, does not imply that the class includes individuals employed by federal grant recipients or by their subgrantees.

Moreover, the Levine case itself does not suggest inclusion of such individuals. The individual involved in Levine was an employee of a person appointed by the Federal Government to carry out a federally defined regulatory task. As an employee of an agent of the United States, he was obviously acting for the United States. An employee of a grantee or subgrantee of the United States is in a quite different position. It is by no means obvious that such a person is acting for the United States, since a grantee does not necessarily have an agency relationship with the United States. Indeed,

[ 465 U.S. Page 504]

     as the Court concedes, ante, at 499, not all recipients of federal grant funds are acting for the United States: for example, recipients of science research funds are surely not acting for the United States, even when they use some of those funds to purchase assistance in accordance with the federally approved grant proposal. That Congress approved the Levine case simply cannot support an inference that Congress intended the bribery statute to cover persons in petitioners' position.

The Court also relies on the 87th Congress' retention of the "acting for . . ." language after several bills not containing that language had been proposed. Ante, at 493-494. Those bills proscribed acceptance of a bribe by "an officer, agent, or employee of the United States in the executive, legislative, or judicial branch of the Government, or of any agency." See ante, at 494, n. 13. The Department of Justice recommended retention of the pre-1962 language because the proposed "officer, agent, or employee" language "could be construed" to be narrower than the "acting for . . ." language. See ante , at 493, n. 12. The Court accordingly concludes that Congress intended the bribery statute to cover more than those persons with a formal employment or agency relationship with the United States.

This conclusion is too strong. Neither the Department of Justice testimony nor anything else in the legislative history explains what persons were thought to be outside the coverage of the discarded bills but within the coverage of the "acting for . . ." language. For all the legislative history shows, no one in Congress or appearing before Congress had any such persons in mind. Indeed, the Court's interpretation of the statute suggests as much. Anyone who "occupies a position of public trust with official federal responsibilities," ante, at 496, would seem to be an "agent" of the United States when carrying out those responsibilities, since the Court gives meaning to its public trust test by requiring federal direction of the tasks to be performed by the person bribed, ante, at 496-498, 500. See Restatement (Second) of Agency § 1

[ 465 U.S. Page 505]

     (1958) (agency relationship created when one person agrees with another "that the other shall act on his behalf and subject to his control"). The most that can be said of Congress' reenactment of the "acting for . . ." language following the proposal and criticism of the alternative bills is that Congress thought that there could conceivably be some difference between the enacted and unenacted language and that the pre-1962 language should be retained out of caution, as Congress did not intend to narrow the coverage of the bribery statute.

The conclusion that employees of federal grant recipients or their subgrantees were intended to be covered by the federal bribery statute finds as little support in the cases cited by the Court, ante, at 498-499, as it does in the statutory language and legislative history. The only case from this Court that interpreted the language at issue is Krichman v. United States, 256 U.S. 363 (1921), and that case, if relevant at all, cannot support the Government, since it held that the defendant was not covered by the bribery statute. The lower court cases relied on by the Court that involve grant-in-aid programs are in conflict. Compare United States v. Loschiavo, 531 F.2d 659 (CA2 1976); United States v. Del Toro, 513 F.2d 656 (CA2 1975); United States v. Hoskins, 520 F.Supp. 410 (ND Ill. 1981), with United States v. Mosley, 659 F.2d 812 (CA7 1981); 683 F.2d 195 (CA7 1982) (decision below in these cases). Thus, there is no consistent lower court construction of the statute as it applies to grant recipients to bolster the Court's reading.

The other cases cited by the Court all involved persons in circumstances quite distinguishable from that of employees of federal grant recipients or their subgrantees. United States v. Hollingshead, 672 F.2d 751 (CA9 1982), involved an employee of a "fiscal arm" of the Federal Government "carrying out tasks delegated by a government agency." Id., at 754. United States v. Kirby, 587 F.2d 876 (CA7 1978), involved persons acting under federal licenses as grain inspectors for the Federal Government. United States v. Gallegos, 510 F.Supp. 1112 (NM 1981), involved an individual who "had been

[ 465 U.S. Page 506]

     assigned to work in an office of the Farmers Home Administration . . . to assist in administering an FHA program." Id., at 1113. Harlow v. United States, 301 F.2d 361 (CA5), cert. denied, 371 U.S. 814 (1962), involved an employee of a federal instrumentality operating on United States military bases. United States v. Griffin, 401 F.Supp. 1222 (SD Ind. 1975), affirmance order sub nom. United States v. Metro Management Corp., 541 F.2d 284 (CA7 1976), involved a person under direct contract with the Federal Government to solicit and receive bids for federal rehabilitation contracts and to prepare and inspect property that is under the control of the Federal Government and is eligible for such rehabilitation. In all of these cases the person bribed had a more or less direct agency relationship with the Federal Government. None of the cases dealt with a federal grant program and the accompanying uncertainty about whether the bribed person's activities were being carried out solely on the grantee's behalf, though with financial support from the Federal Government, or were being carried out on behalf of the Federal Government.

In sum, neither the statutory language, legislative history, nor case law provides any persuasive evidence that Congress intended the federal bribery statute to apply to persons in petitioners' position. The Court's conclusion requires some affirmative reason to believe that Congress thought that employees of federal grant recipients or their subgrantees are acting for or on behalf of the Federal Government, even when the grant recipient is a state or local government. No such reason, and certainly no reason strong enough to escape the pull of the rule of lenity, has been advanced.


Not only is there an absence of support for the Court's conclusion, but there are several reasons to reject it. Federal grant programs to state and local governments as well as to private organizations have been in existence since the 19th century. See 1 R. Cappalli, Federal Grants and Cooperative

[ 465 U.S. Page 507]

     Agreements §§ 1.19-1.22 (1982); Elazar, Federal-State Collaboration in the Nineteenth Century United States, 79 Pol. Sci. Q. 248 (1964). By the middle of this century, grant programs to state governments in particular were a major component of the federal budget. When Congress enacted § 201 in 1962, it was spending more than $7 billion a year, or approximately 7% of the federal budget, on grants to state and local governments. See United States Bureau of the Census, Historical Statistics of the United States, Colonial Times to 1970, Part 2, pp. 1123, 1125 (1975). That amount increased to more than $40 billion by 1975 and today stands at approximately $90 billion, more than 10% of the federal budget. See Executive Office of the President, Office of Management and Budget, Special Analyses, Budget of the United States Government, Fiscal Year 1984, p. H-16 (1983).

Against this background, the long congressional and judicial silence on the application of the federal bribery statute to persons like petitioners takes on added significance. Despite the magnitude of federal grant programs in general and of federal programs making grants to state and local government in particular, there is no indication that Congress has ever considered whether employees of grant recipients are "public officials" within the meaning of the federal bribery statute, even though Congress studied and revised the statute in both 1948 and 1962. Moreover, there appears to be no reported case involving a prosecution against such employees under § 201 or its predecessors until the early 1970's. The Second Circuit's 1975 case, United States v. Del Toro, supra, decided at a time when federal grants to state and local governments totaled more than $40 billion, is apparently the first case to have presented the problem. Given that bribery of persons responsible for administering federal grant funds is exceedingly unlikely to be a recent phenomenon, cf. United States ex rel. Marcus v. Hess, 317 U.S. 537 (1943) (bid-rigging by contractors with local governments administering federal funds); United States v. Laudani, 320 U.S. 543

[ 465 U.S. Page 508]

     (1944) (kickbacks to subcontractor of Port of New York Authority on project receiving federal grant money), the most plausible inference is that neither Congress nor federal prosecutors believed that the federal bribery statute extended to employees of federal grant recipients or their subgrantees, at least when the grantee is a state or local government.

That inference is supported by the fact that federal grant programs generally, and grant-in-aid programs to state and local governments in particular, are categorically different, and are treated by law as categorically different, from other types of federal activity. Such programs have been treated as forming a distinctive category of governmental activity by statute, see Federal Grant and Cooperative Agreement Act of 1977, 92 Stat. 3, 41 U. S. C. §§ 501-506, 508, 509 (1976 ed. and Supp. V), and by regulation, see 1 R. Cappalli, supra, §§ 5.01-5.56. The main defining characteristic of the category is the principle of grantee autonomy: although grants impose conditions on the use of grant funds, grantees are left considerable discretion to design and execute the federally assisted programs without federal intrusion. See 41 U. S. C. § 504 (1976 ed., Supp. V) (definition of "grant" requires that "no substantial involvement is anticipated between the executive agency, acting for the Federal Government, and the State or local government or other recipient during performance of the contemplated activity"); 1 R. Cappalli, supra, § 1.07. That principle means that the grantee's activities are typically not attributable to the United States, see United States v. Orleans, 425 U.S. 807 (1976) (not attributable for purposes of tort liability), and suggests that those activities are not undertaken on behalf of the Federal Government, cf. Restatement (Second) of Agency § 14 and Comment a (1958) (principal has right to control conduct of agent, and an "agent is subject to a duty not to act contrary to the principal's directions, although the principal has agreed not to give such directions").

[ 465 U.S. Page 509]

     Indeed, in different though related contexts this Court has recognized that "[grants] of federal funds generally do not . . . serve to convert the acts of the recipient from private acts to governmental acts absent extensive, detailed, and virtually day-to-day supervision." Forsham v. Harris, 445 U.S. 169, 180 (1980); see also id., at 180, n. 11 ("Before characterizing an entity as 'federal' for some purpose, this Court has required a threshold showing of substantial federal supervision of the private activities, and not just the exercise of regulatory authority necessary to assure compliance with the goals of the federal grant"); United States v. Orleans, supra, at 815.

The principle of grantee autonomy is basic to all grant programs, but its significance is greatest in two circumstances especially relevant to these cases. First, grantee autonomy is strongest in "block grant" programs, such as the Housing and Community Development Block Grant program at issue here. In such programs, federal control over the spending of the distributed funds is minimized, and the grant recipient cannot plausibly be said to be acting for anyone but itself. The Federal Government increasingly uses block grants for its grants-in-aid to state and local governments. See 1 R. Cappalli, supra, §§ 1.33-1.51 (describing characteristics of block grants and noting major shift toward block grants in 1981); United States Advisory Commission on Intergovernmental Relations, Block Grants: A Comparative Analysis (1977).

Second, the principle of grantee autonomy applies with special force when federal grant recipients are state or local governments. Principles of federalism inherent in our constitutional system have long played a significant role in the congressional creation of federal grant-in-aid programs. See R. Shapek, Managing Federalism: Evolution and Development of the Grant-in-Aid System (1981). Such principles must shape the construction of the statutory language at

[ 465 U.S. Page 510]

     issue in these cases. They demand a strong presumption that state and local governments are carrying out their own policies and are acting on their own behalf, not on behalf of the United States, even when their programs are being funded by the United States. A proper respect for the sovereignty of States requires that federal programs not be interpreted to deputize States or their political subdivisions to act on behalf of the United States unless such deputy status is expressly accepted or, where lawful, expressly imposed. It would be inconsistent with the general relationship between the Federal and State Governments to conclude, absent such express actions, that a State is acting in effect as an agent of the United States.

Congress apparently entertained a similar thought when it amended the Grain Standards Act in 1976 to apply § 201 to federally licensed grain inspectors employed by a state agency to exercise federally delegated authority to conduct official inspections of grain. Pub. L. 94-582, § 10, 90 Stat. 2877, 7 U. S. C. § 84(d). If the inspectors had not been state employees, it would have been perfectly apparent -- on the authority of United States v. Levine, 129 F.2d 745 (CA2 1942), for example -- that they were acting on behalf of the United States. See United States v. Kirby, 587 F.2d 876, 879-880 (CA7 1978). Congress believed that the federal bribery statute had not previously applied when it enacted the 1976 amendment. See H. R. Rep. No. 94-966, p. 5 (1976); S. Rep. No. 94-747, pp. 9, 17 (1976); S. Conf. Rep. No. 94-1389, p. 47 (1976). The inference seems inescapable that Congress thought it extraordinary, and worth explicit statutory direction, for state employees not actually on detail to the Federal Government to be considered to be acting on behalf of the United States.

Thus, federal grants, especially when the grant recipient is a state or local government, create a distinctive type of relationship between the Federal Government and employees of the grant recipient or its subgrantees. Congress has recognized

[ 465 U.S. Page 511]

     as much. For the Court to apply the bribery statute to petitioners is to extend the statute to a class of individuals that Congress thinks of as different from that of any others it has intended § 201 to cover and whose relation to the Federal Government raises problems of autonomy and federalism never addressed by Congress in the context of the federal bribery statute. Consequently, with respect to employees of grant recipients or their subgrantees, at least when the grant recipient is a state or local government (as it is in these cases), I do not think that the rule of lenity can be overcome.

Finally, I think it especially inappropriate to construe an ambiguous criminal statute unfavorably to the defendant when the construction that is adopted leaves the statute as unclear in its coverage as the bare statutory language. The rule of lenity rests on the notion that people are entitled to know in advance whether an act they contemplate taking violates a particular criminal statute, even if the act is obviously condemnable and even if it violates other criminal statutes.*fn*

[ 465 U.S. Page 512]

     The "public trust" standard adopted by the Court provides no more guidance to employees of a grant recipient or its subgrantee than does the statutory language, "acting for or on behalf of the United States." There are hundreds of federal grant programs. See Executive Office of the President, Office of Management and Budget, 1983 Catalog of Federal Domestic Assistance. Yet it is impossible to tell from the Court's analysis just what sorts of federal regulation make a grant recipient subject to the bribery statute. A criminal statute, after if not before it is judicially construed, should have a discernible meaning. I do not think the Court offers one.

I respectfully dissent.

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