to assign the traditional roles of "briber" and "bribee" between them. As the government itself frames the issue, "in essence, the Indictment charges the defendants with: (a) lying in order to continue to obtain rent payments from the [Board] . . . and (b) concealing their interest in the building." (Opp. Br. p. 2) Such conduct simply does not fit the definition, in the mind of an ordinary person, of the term "bribery."
The government, however, points to a Third Circuit holding that "the generic description of bribery is 'conduct which is intended, at least by the alleged briber, as an assault on the integrity of a public office or an official action." Rose v. Bartle, 871 F.2d 331, 362 (3d Cir. 1989), quoting Forsythe, 560 F.2d at 1137 & n.23 (quoting Dansker, 537 F.2d at 48). Standing alone, this statement would seem to make "bribery" out of any conduct whatever which could be construed as an intended "assault on the integrity of a public office or an official action." This could quite literally include nearly all public misconduct by a government official, whether it be sexual harassment, embezzlement, or any other action which would reflect poorly on the integrity of his or her office, no matter how far afield from a traditional understanding of the term "bribery."
In context, the quoted statement means something else. In Dansker, from which the quotation originates, the court was wrestling with the question of what level of "corrupt intent" was required on the part of a public official accused of bribery under a statute which seemed to prohibit the acceptance by anyone of any benefit in exchange for an agreement to influence any official action in any manner. Recognizing that such a rule would violate the First Amendment, the court found instead that the statute at issue "was designed to reach only that conduct which has been the traditional concern of the law of bribery -- conduct which is intended, at least by the alleged briber, as an assault on the integrity of a public office or an official action." Dansker, 537 F.2d at 48.
Although several courts have stated or implied that the quoted language sets forth a generic definition of bribery, they have done so either in the context of examining the mens rea required for generic bribery, United States v. Kaye, 586 F. Supp. 1395, 1399 (N.D. Ill. 1984) (defendant argued that he did not commit bribery since he never actually passed money to public official; court cites Dansker for proposition that intent of briber can be enough); Walsh, 700 F.2d at 853 (defendant argued that he paid public official merely to expedite certain processing and therefore lacked mens rea for bribery; court rejects this argument, citing Dansker), or in situations in which the alleged predicate act clearly fell within the traditional, popular understanding of "bribery." See Rose, 871 F.2d at 363 (plaintiffs properly alleged generic bribery where they charged that defendants offered to benefit certain public officials' political careers and simultaneously threatened those careers in order to persuade the officials to institute groundless legal proceedings against plaintiffs); Garner, 837 F.2d at 1419, (see supra p. 9); Forsythe, 560 F.2d at 1137 n.23, (see supra p. 8).
Nowhere has the Dansker language been used to expand the generic definition of bribery to include conduct which never even contemplated a traditional briber/bribee relationship. Thus, although the conduct alleged by the government in this case may constitute an "assault on the integrity of a public office" in a certain sense, this does not make it bribery under Dansker.
Similarly, the government advances United States v. Biaggi, 853 F.2d 89, 101 (2d Cir. 1988), for the proposition that a statute can serve as a predicate act of bribery under the Travel Act if it "prohibits the acceptance of a payment or benefit by a public employee that would lead to the inefficient management of public affairs." (Opp. Dr. p. 13) Again, the government urges the Court to expand the definition of generic bribery based upon a brief quotation taken out of context. The quoted language comes from a section of the Biaggi opinion in which the court was, once again, addressing the level of corrupt intent required for generic bribery -- this time under the federal "Bribery of public officials and witnesses" statute, 18 U.S.C. 201.
One section of the federal statute proscribes bribery with "corrupt intent to influence;" another prohibits paying gratuities to public officials "for or because of any official act performed or to be performed by such public official." Id. The Biaggi court rejected the defendant's contention that only the "corrupt intent to influence" section constituted generic bribery for Travel Act purposes, holding:
All sections of the bribery statute are aimed at preventing the evil of allowing citizens with money to buy better public service than those without money . . . even if corruption is not intended by either the donor or the donee, there is still a tendency in such a situation to provide conscious or unconscious preferential treatment of the donor by the donee, or the inefficient management of public affairs.
Biaggi, 853 F.2d at 101 (citation omitted). Clearly, Biaggi construes a statute which fits quite comfortably under the traditional rubric of bribery, and the language the court used has little applicability to the situation at bar, where there is neither a "donor" nor a "donee."
Accordingly, this Court finds that none of the cases cited by the government alter its finding that the conduct alleged in Count 28 simply does not amount to "bribery" in its ordinary, traditional sense.
This holding comports with the purposes of the Travel Act as stated in its legislative history. As set forth in Nardello, 393 U.S. at 290-92, 89 S. Ct. at 537-38 (citations omitted), the Travel Act was part of the Kennedy Administration's effort to combat organized crime,
specifically by aiding local law enforcement officials stymied by persons who conducted their illegal activities outside their state of residence. The Travel Act "reflects a congressional judgment that certain activities of organized crime which were violative of state law had become a national problem." Id 393 U.S. at 292, 89 S. Ct. at 538. Although the Travel Act undoubtedly reaches conduct unrelated to organized crime, allegations of what is essentially garden variety misuse of public office such as those contained in Count 28 are not the sort of "national problem" that Congress sought to address in the Travel Act. Accordingly, the Court will grant defendants' motion to dismiss the Travel Act count.
II. Motion to Dismiss Obstruction of Justice Count
Count 41 of the Indictment (Obstruction of Justice) charges that Parlavecchio:
On or about March 17, 1995, in the District of New Jersey, . . . knowingly, willfully and corruptly endeavored to influence, obstruct and impede the due administration of justice, namely, a grand jury investigation being conducted in the United States District Court for the District of New Jersey in violation of Title 18, United States Code, Sections 1503 and 2.