ARTHUR DIXSON, PETITIONER V. UNITED STATES OF AMERICA

   JAMES LEE HINTON, PETITIONER V. UNITED STATES OF AMERICA

   No. 82-5279

   No. 82-5331

   In the Supreme Court of the United States

   October Term, 1982

   On Writ of Certiorari to the United States Court of Appeals for the
Seventh Circuit

   Brief for the United States

            TABLE OF CONTENTS
   Opinion below
   Jurisdiction
   Statute involved
   Statement
   Summary of argument
   Argument:
      As officers of a quasi-public corporation
      administering federal housing rehabilitation grants,
      petitioners are "public officials" within the
      meaning of the federal bribery statute, 18
      U.S.C. 201(a)
      A. The plain language of the federal bribery
          statute includes petitioners within its
          reach
      B. The legislative history and judicial
          construction of 18 U.S.C. 201(a) demonstrate
          that the statute encompasses persons
          administering federally funded and
          supervised programs
      C. The extent of federal involvement in the
          housing program administered by petitioners
          compels the conclusion that they are
          "public officials" under 18 U.S.C. 201(a)
      D. The federal government has a strong and
          legitimate interest in prosecuting petitioners
          for their misuse of government funds
   Conclusion

                             OPINION BELOW

   The opinion of the court of appeals (J.A. 75-84) /1/ is reported at
683 F.2d 195.

                             JURISDICTION

   The judgment of the court of appeals was entered on July 8, 1982.
The petition for a writ of certiorari in No. 82-5279 was filed on
August 24, 1982, and the petition in No. 82-5331 was filed on August
31, 1982.  Both petitions for a writ of certiorari were granted on
December 13, 1982 (J.A. 85-86).  The jurisdiction of this Court rests
on 28 U.S.C. 1254(1).

                           STATUTE INVOLVED

   18 U.S.C. 201 provides, in pertinent part:

      (a) For the purpose of this section:  "public official" means
      Member of Congress, the Delegate from the District of Columbia,
      or Resident Commissioner, either before or after he has
      qualified, or an officer or employee or person acting for or on
      behalf of the United States, or any department, agency, or
      branch of Government thereof, including the District of
      Columbia, in any official function, under or by authority of any
      such department, agency, or branch of Government, or a juror;

                      * * * * *

      (c) Whoever, being a public official or person selected to be a
      public official, directly or indirectly, corruptly asks,
      demands, exacts, solicits, seeks, accepts, receives, or agrees
      to receive anything of value for himself or for any other person
      or entity, in return for:

         (1) being influenced in his performance of any official act;

                      * * * * *

         Shall be fined not more than $20,000 or three times the
      monetary equivalent of the thing of value, whichever is greater,
      or imprisoned for not more than fifteen years, or both, and may
      be disqualified from holding any office of honor, trust, or
      profit under the United States.

                          QUESTION PRESENTED

   Whether petitioners, officers of a nonprofit urban development
corporation administering and expending federal housing rehabilitation
grants, were "person(s) 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" (18 U.S.C. 201(a)), and were
therefore correctly found guilty of violating the federal bribery
statute (18 U.S.C. 201(c)) for accepting payments in return for
letting rehabilitation contracts.

                               STATEMENT

   Petitioners were indicted in the United States District Court for
the Central District of Illinois on eleven counts of soliciting and
receiving money in exchange for the award of housing rehabilitation
contracts funded by the United States Department of Housing and Urban
Development (HUD), in violation of 18 U.S.C. 201(c)(1).  Following a
jury trial, petitioners were convicted as charged and each was
sentenced to a term of 7 1/2 years' imprisonment to be followed by
three years' probation (J.A. 3-8, 23, 24).  /2/

   1. The Housing and Community Development Act of 1974, 42 U.S.C. (&
Supp. IV) 5301 et seq., provides federal funding to state and local
governments for "the development of viable urban communities." 42
U.S.C. (& Supp. IV) 5301(c).  The Act gives the Secretary of Housing
and Urban Development power to dispense community development block
grants to be used for specified activities (42 U.S.C. (& Supp. IV)
5305), including rehabilitation of residential structures and related
public works projects (J.A. 25-26, 31-32).  The Act authorizes state
and local governments to designate community associations and other
entities approved by the Secretary to be administrators of the grant
funds (42 U.S.C. (& Supp. IV) 5302(a), (c)).  Regulations promulgated
by the Secretary permit state and local governments to delegate the
administration of grant funds to neighborhood-based, nonprofit
corporations (24 C.F.R. 570.204).

   The Act calls for substantial federal supervision of the local
governments and nonprofit corporations responsible for the
administration of grant funds (J.A. 78-79).  It requires the
submission of a comprehensive three-year community development plan,
as well as implementation and housing assistance plans, prior to the
award of funds (42 U.S.C. (& Supp. IV) 5304);  and it describes in
detail the activities that are eligible for funding under community
development plans.  /3/ 42 U.S.C. (& Supp. IV) 5305.  Further, there
are extensive HUD regulations governing community development block
grant procedures, program design, management, and administration.  See
generally 24 C.F.R. Part 570.  Section 570.204, for example, governs
eligible activities by private nonprofit entities.  /4/ Other
regulations govern the procurement of services and materials by
grantees and subgrantees (24 C.F.R. 570.507), and set forth the
records and reports that must be prepared and made available for HUD
inspection (24 C.F.R. 570.900-570.913).  /5/ The Secretary of HUD or
the Comptroller General of the United States may examine and audit all
books, accounts, records, reports, files or other papers of grantees
or subgrantees.  42 U.S.C. (Supp. IV) 5304(d);  24 C.F.R. 570.509.

   In addition to these general reporting and oversight requirements,
a broad range of substantive federal laws govern applicants for funds
under the Housing and Community Development Act of 1974.  The chief
executive officer of a grantee must, for example, consent to "assume
the status of a responsible Federal official under the National
Environmental Protection Act of 1969 (42 U.S.C. 4321 et seq.)," and is
required to accept federal jurisdiction "for the purpose and
enforcement of his responsibilities as such an official." 42 U.S.C.
(Supp. IV) 5304(h)(3)(D).  Fund recipients are required to comply with
the provisions of the Davis-Bacon Act (40 U.S.C. 276a to 276a-5), /6/
and are prohibited from denying anyone the benefits of participation
in a housing program on the basis of race, color, national origin, or
sex.  42 U.S.C. 5309, 5310.  Regulations promulgated by the Secretary
of HUD require grantees and subgrantees to comply with the
Archeological and Historic Preservation Act of 1974 (Pub. L. No.
93-291, 88 Stat. 174 et seq.), the Architectural Barriers Act of 1968
(42 U.S.C. 4151 et seq.), the Hatch Act (5 U.S.C. 7324), the Flood
Disaster Protection Act of 1973 (Pub. L. No. 93-234, 87 Stat. 975),
the Clean Air Act (42 U.S.C. 1857 et seq.), the Federal Water
Pollution Control Act (33 U.S.C. (& Supp. IV) 1251 et seq.), and the
Lead-Based Paint Poisoning Prevention Act (42 U.S.C. 4831 et seq.).
24 C.F.R. 570.604-570.611.  The Secretary of HUD is authorized to
terminate, reduce, or limit funding for failure to comply with any of
these requireemtns.  42 U.S.C. 5311.

   2. Evidence presented at trial established that during 1979 and
1980, the City of Peoria, Illinois, received a community development
block grant and a metro reallocated grant /7/ totalling approximately
$1.1 million from the United States Department of Housing and Urban
Development.  The grants were funded under the Housing and Community
Development Act of 1974.  In accordance with the Act (42 U.S.C. (&
Supp. IV) 5302(a), (c) and its implementing regulations (24 C.F.R.
570.204), the city contracted with a community-based, not-for-profit
corporation, United Neighborhoods, Inc. (UNI), to administer the funds
awarded to Peoria (J.A. 26-27, 41-64, 70-72).  UNI proposed to
administer the funds in "a joint effort with the City of Peoria to
achieve the common goals as set forth in the Housing and Community
Development Act to insure safe, sanitary and decent housing for all
people" (Gov't Exh. 19 at 2).  Petitioner Dixson was the Executive
Director of UNI, and petitioner Hinton was its Housing Rehabilitation
Coordinator (J.A. 75).

   The grant program administered by UNI was funded in its entirety by
federal appropriations and federal funds paid all of UNI's costs and
the salaries of its employees (including the salaries of the two
petitioners) (42 U.S.C. (& Supp. IV) 5305(a)(13);  24 C.F.R. 570.206;
J.A. 41-64, 70-72).  UNI's responsibilities included soliciting bids
and awarding contracts for the rehabilitation project, participating
contractors were paid by UNI with federal funds the corporation
received from the city (J.A. 26-28, 31-35).  UNI was thus a
"subgrantee" of HUD funds, while the city of Peoria acted as a
"liaison" between HUD and UNI (J.A. 27, 33).  /8/

   Two contractors who received housing rehabilitation contracts from
UNI testified that pettioners Dixson and Hinton solicited money in
exchange for awarding them contracts.  /9/ One contractor received
rehabilitation contracts for ten homes after agreeing to pay
petitioners ten percent of the amount of each contract.  The
contractor paid petitioners after cashing the checks he received
periodically from UNI as rehabilitation work progressed (Tr. 139-145,
165-189, 220-223).  /10/ A second contractor was told by petitioner
Dixson that he would receive a contract in return for a ten percent
payment.  Petitioners thereafter told the contractor which houses to
bid on, recommended that the amount of one bid be lowered, and
collected payment in cash after the contractor received his check from
UNI (Tr. 77-83, 92, 95, 100, 104, 106).  The bribes solicited and
received by petitioners in this manner totalled $42,694.03 (Tr. 81-83,
92, 95, 173-177;  Gov't Exhs. 1-11, 23).  /11/

   At the conclusion of the evidence, the trial court instructed the
jury that the government was required to prove "(t)hree essential
elements" under 18 U.S.C. 201(c) (J.A. 40).  First, the government
must show that the petitioners had directly or indirectly solicited,
exacted, accepted, or agreed to receive a sum of money;  second, that
they had done this "corruptly while a public official;" and third,
that they had performed the proscribed "acts with the intent to be
influenced in their performance of an official act in respect to the
awarding of housing rehabilitation contracts" (J.A. 40).  The court
instructed the jury that 18 U.S.C. 201(a) "defines the term 'public
official' to include an officer or employee or person acting for or on
behalf of the United States in any official function, under or by
authority of any department, agency or branch of government" (J.A.
40).  "Official act" was likewise defined by the court as "any
decision or action on any question, matter, proceeding or controversy
which may at any time be pending or which may by law be brought before
any public official in his official capacity" (ibid.).  The jury found
petitioners guilty as charged.

   3. The court of appeals unanimously affirmed petitioners'
convictions (J.A. 75-84).  The court rejected petitioners' contention
that they were not "public officials" within the meaning of 18 U.S.C.
201(a).  It held that the "substantial federal supervision" of UNI's
administration of community development block grant funds together
with petitioners' "positions within the program" established that they
were persons "acting for or on behalf of the United States or any
department, agency, or branch of government thereof" (J.A. 78-80).

   The court rejected petitioners' assertion that 18 U.S.C. 201(a)
reaches only those persons employed by the federal government (J.A.
80).  The court held that "(t)he extent of federal involvement (in the
community development block grant program) is such that (petitioners)
were acting on behalf of the United States in their administration of
the federal funds under the program" (J.A. 79).  The court noted that
although "the federal funds flow from local sponsor to the recipient
of a contract rather than directly from the agency * * * the purpose
of this procedure (is) to streamline the funding process rather than
to abdicate federal control over the substantive aspects of the
program" (ibid.).  Moreover, "(t)he salaries of (petitioners) and the
entire cost of the program they administered were funded by the
federal government for federal objectives," and petitioners were
therefore "acting as federal agents in the sense of having discretion
in administering the expenditure of federal funds" (J.A. 80).  The
court concluded that because petitioners "had the authority and power
to influence or control the dispersal of federal funds on behalf of
HUD," they qualified "as 'public officials' within the meaning of
section 201(c)" (J.A. 81-82, footnote omitted).

   The court of appeals found support for its holding in two earlier
Seventh Circuit decisions:  United States v. Mosley, 659 F.2d 812
(1981), /12/ and United States v. Griffin, 401 F. Supp. 1222 (S.D.
Ind. 1975), aff'd without opinion sub nom. United States v. Metro
Management Corp., 541 F.2d 284 (1976).  /13/ The court of appeals
distinguished two decisions of the Second Circuit (United States v.
Loschiavo, 531 F.2d 659 (1976), and United States v. Del Toro, 513
F.2d 656, cert. denied, 423 U.S. 826 (1975)), concluding that the
federal involvement in the program at issue in this case "differs
significantly" from the housing program examined in the Second Circuit
cases (J.A. 78).

                          SUMMARY OF ARGUMENT

   1. Section 201(a) defines a "public official" as any "person acting
for or on behalf of the United States * * * in any official function"
(18 U.S.C. 201(a)).  The plain language of the statute, therefore,
refutes petitioners' argument that Congress limited Section 201(a) to
persons having a "direct agency or contractual relationship" with the
federal government (82-5331 Br. 7).  To the contrary, the statute
clearly extends to persons administering federally sponsored
activities authorized by statute, regulation, contract, or agreement
-- whether or not those persons have some employment relationship with
the United States.  In the face of the sweeping language of Section
201(a), this Court should not construe the statute to exclude any
person or conduct fairly encompassed by it (Lewis v. United States,
445 U.S. 55, 60-61 (1980);  United States v. Culbert, 435 U.S. 371,
373 (1978)).

   2. The legislative history of 18 U.S.C. 201(a) demonstrates that
the statute reaches persons administering federally sponsored and
supervised programs.  The scope of federal bribery law has expanded in
step with the increasing size and complexity of the federal
government.  Whereas the first federal bribery statute proscribed only
the bribery of judges (Act of Apr. 15, 1790, ch. 9, Section 21, 1
Stat. 117), by 1948 Congress had enacted statutes that "embrace(d) all
officers or persons acting on behalf of any independent agencies or
Government-owned or controlled corporations" (H.R. Rep. No. 304, 80th
Cong., 1st Sess. A14-A15 (1947)).  The comprehensive bribery statute
at issue in this case was enacted in 1962, and was expressly designed
to include "within the statutory coverage those persons who perform
activities for the Government" (H.R. Rep. No. 748, 87th Cong., 1st
Sess. 17-18 (1961)).  Congress, moreover, rejected proposed
legislation that would have limited the coverage of 18 U.S.C. 201
solely to officers, agents, or employees of the United States (see,
e.g., H.R. 3411, 87th Cong., 1st Sess. (1961)).  Congress, therefore,
has asserted its intention in 18 U.S.C. 201(a) to deal comprehensively
with bribery in connection with the administration of federal
programs.  It should not be required to graft new language onto the
statute each time the growth of federal agencies and programs results
in a new delegation of administrative duties to new sorts of persons
"carrying on activities for or on behalf of the Government" (S. Rep.
No. 2213, 87th Cong., 2d Sess. 8 (1962)).

   Consistent with this legislative intent, most federal district and
appellate courts have concluded that persons exercising powers
authorized by federal statute, regulation, contract, or agreement as
part of a federally sponsored, supervised, and funded program are
"acting for or on behalf of the United States" within the meaning of
Section 201(a).  Courts have found that the federal bribery statute
applies to the bribery of a federal reserve bank employee (United
States v. Hollingshead, 672 F.2d 751 (9th Cir. 1982)), a state social
service eligibility worker (United States v. Mosley, 659 F.2d 812 (7th
Cir. 1981)), privately employed grain inspectors (United States v.
Kirby, 587 F.2d 876 (7th Cir. 1978)), and private employees of the
military post exchange system (Harlow v. United States, 301 F.2d 361
(5th Cir.), cert. denied, 371 U.S. 814 (1962).  In light of these
precedents, petitioners' responsibilities as administrators of a
federally funded housing program plainly bring them within the purview
of 18 U.S.C. 201(c).  The Second Circuit cases giving the statute a
woodenly restricted reading (United States v. Del Toro, 513 F.2d 656,
cert. denied, 423 U.S. 826 (1975);  United States v. Loschiavo, 531
F.2d 659 (1976)), are contrary to the weight of judicial authority and
are inconsistent with the language and legislative history of 18
U.S.C. 201(a).

   3. Extensive federal involvement in the housing program
administered by petitioners compels the conclusion that they are
"public officials" under 18 U.S.C. 201(a).  UNI's housing
rehabilitation program was not merely "a local project to accomplish
local objectives" (82-5279 Br. 17), but rather was part of a
nation-wide effort to achieve "essential national goals and
objectives" (H.R. Rep. No. 93-1114, 93d Cong., 2d Sess. 6 (1974)).  To
insure that "nationally-established objectives are being met in a
reasonable manner" (H.R. Rep. No. 93-1114, supra, at 8), Congress
created extensive "executive oversight" of locally administered
housing programs (S. Rep. No. 93-693, 93d Cong., 2d Sess. 55 (1974)).
Thus, local housing development programs must comply with detailed
federal planning, implementation and reporting requirements (42 U.S.C.
(& Supp. IV) 5304, 5305), and are subject to a broad range of federal
substantive laws (42 U.S.C. (& Supp. IV) 5304(h), 5309-5310).  This
extensive federal supervision demonstrates that the housing
rehabilitation program operated by United Neighborhoods, Inc., was
undeniably conducted "under or by authority of" a federal "department"
within the meaning of Section 201(a).  Petitioners' positions within
that program, moreover, show that they were persons "acting for or on
behalf of the United States" (18 U.S.C. 201(a)).  Petitioners
possessed and exercised the authority to award federal housing
rehabilitiation grants to contractors who paid them a ten percent
bribe.  The court of appeals was therefore correct in concluding that
petitioners "were acting as federal agents in the sense of having
discretion in administering the expenditure of federal funds" (J.A.
80).

   4. The federal government has a strong and legitimate interest in
prosecuting petitioners for their misuse of government funds.  There
is no reason why corruption in the dispensing of federal funds should
be insulated from the application of federal criminal law solely
because state and local officials are used as intermediaries in the
distribution of those funds.  Section 201(a) is cast in broad terms
precisely in order to include all those "carrying on activities for or
on behalf of the Government" (S. Rep. No. 2213, supra, at 8).
Considerations of comity and federalism are therefore irrelevant here
and do not point toward a restrictive interpretation of 18 U.S.C.
201(a).  The statute's clear language gave petitioners ample warning
that their conduct was prohibited, and application of the statute to
that conduct would further its central purposes.

                               ARGUMENT

 AS OFFICERS OF A QUASI-PUBLIC CORPORATION ADMINISTERING FEDERAL
HOUSING REHABILITATION GRANTS, PETITIONERS ARE PUBLIC OFFICIALS"
WITHIN THE MEANING OF THE FEDERAL BRIBERY STATUTE, 18 U.S.C. 201(a)

   Petitioners assert that they do not come within the purview of the
federal bribery statute, 18 US.C. 201(a), because they were employees
of United Neighborhoods, Inc., and lacked any employment relationship
with the federal government (82-5279 Br. 11-13;  82-5331 Br. 7-8).
This argument ignores the sweeping language of 18 U.S.C. 201(a), its
legislative history, the extent of the federal involvement in the
housing program administered by petitioners, and the strong interest
of the federal government in prosecuting petitioners for their corrupt
administration of government funds.  A reasoned consideration of these
factors compels affirmance of the decision below.

 A. The Plain Language Of The Federal Bribery Statute Includes
Petitioners Within Its Reach

   This Court has repeatedly stated that the "starting point in every
case involving the construction of a statute is the language itself."
Southeastern Community College v. Davis, 442 U.S. 397, 405 (1979),
quoting Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 756
(1975) (Powell, J., concurring);  Reiter v. Sonotone Corp., 442 U.S.
330, 337-338 (1979).  If "statutory language is unambiguous, in the
absence of 'a clearly expressed legislative intent to the contrary,
that language must ordinarily be regarded as conclusive.'" United
States v. Turkette, 452 U.S. 576, 580 (1981);  Rubin v. United States,
449 U.S. 424, 429-431 & n.8 (1981);  Lewis v. United States, 445 U.S.
55, 60 (1980);  United States v. Naftalin, 441 U.S. 768, 772-774
(1979);  United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95-96
(1820).  In this case, the plain language of 18 U.S.C. 201(a) refutes
petitioners' argument that they are not public officials.

   The federal bribery statute provides that it is a felony for "any *
* * public official" to "directly or indirectly" ask, demand, exact,
solicit, seek, accept, receive, or agree to receive "any thing of
value" in return for being influenced in the performance of "any
official act," or for committing a fraud on the United States or
violating any official duty.  18 U.S.C. 201(c).  /14/ The statute
broadly defines "public official" to include "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." 18 U.S.C. 201(a).  /15/

   The federal bribery statute is remarkable because "(t)he statutory
language is sweeping" (Lewis v. United States, supra, 445 U.S. at 60).
 Indeed, as the First Circuit noted in construing a direct predecessor
to 18 U.S.C. 201(a), "it is quite striking how many broadening words
are used in the statute." Wilson v. United States, 230 F.2d 521, 524,
cert. denied, 351 U.S. 931 (1956).  Congress included no limiting
modifier in the statute to restrict bribery prosecutions to persons
having an employment relationship with the federal government.  To the
contrary, the terms of the statute expressly reach any "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" (18 U.S.C. 201(a), emphasis added).  These words
"do not lend themselves to restrictive interpretation" (United States
v. Culbert, 435 U.S. 371, 373 (1978)).  In fact, it is hard to imagine
how Congress could have expressed more vividly its intention to cover
persons administering federal programs whether or not they have an
employment relationship with the United States.

   Petitioners claim that the term "public official" includes only
those persons who "perform an official function for the Federal
Government" (82-5279 Br. 14;  see 82-5331 Br. 15).  Assuming this test
to be correct, petitioners plainly meet its requirements.  As the
court below found (J.A. 80), and as will be discussed later in more
detail (infra pp. 33-36), petitioners were paid with federal funds and
were administering a program completely funded by the federal
government for federal objectives.  Their positions as Executive
Director and Housing Rehabilitation Coordinator of UNI clearly gave
them "discretion in administering the expenditure of federal funds"
(J.A. 80).  /16/ Although petitioners assert that they did not
"perceive (themselves) as " * * * person(s) acting for or on behalf of
the United States in an official function" (82-5279 Br. 15), the
contractors who paid petitioners ten percent of their rehabilitation
contracts certainly "recognize(d) that the value (of dealing with
petitioners was) not derived from (petitioners) personally," but
rather from the "authority (petitioners) possess(ed)" as
administrators of federal funds (82-5279 Br. 15).  The contractors, in
short, dealt with petitioners in their role as a "surrogate, a vicar,
a deputy for the Federal Government" (82-5279 Br. 15).

   "The clear purpose of the (federal bribery) statute is to protect
the public from the evil consequences of corruption in the public
service." Kemler v. United States, 133 F.2d 235, 238 (1st Cir. 1942).
Section 201(a) should be construed broadly enough to accomplish that
legislative end.  United States v. Evans, 572 F.2d 455, 480 (5th Cir.
1978).  Petitioner's direct responsibilities for the administration of
HUD housing rehabilitation funds clearly render them "public
officials" for purposes of the federal bribery statute.  "Certainly,
in the face of such sweeping language and the purpose it was designed
to accomplish," there is no reason to construe the statute, as
petitioners would, "to exclude any person or any conduct fairly within
the broad statutory ambit." Wilson v. United States, supra, 230 F.2d
at 524.

 B. The Legislative History And Judicial Construction Of 18 U.S.C.
201(a) Demonstrate That The Statute Encompasses Persons Administering
Federally Funded And Supervised Programs

   The fundamental purpose of any bribery statute is to protect the
integrity of government institutions.  The federal law of bribery,
therefore, has expanded gradually in scope in recognition of the
growth of government and the concomitant increase in the number and
sorts of persons performing official government functions.  Federal
courts, moreover, have given successive federal bribery statutes a
broad reading "in order to accomplish the legislative purpose which
they manifest." United States v. Evans, 572 F.2d 455, 480 (5th Cir.
1978).

   1. In the seventeenth century, the common law crime of bribery
extended only to the corruption of judges.  3 E. Coke, Institutes of
the Laws of England 144, 147 (1628).  By the nineteenth century /17/
bribery had come to subsume corruption of "any public officer,"
whether or not a judicial officer, as well as bribery of voters and
witnesses.  See J. Stephen, Digest of the Criminal Law 85-87 (1877).
See also 3 J. Stephen, A History of the Criminal Law of England
250-255 (1883);  1 J. Gabbett, A Treatise on the Criminal Law 163
(1843).  Thus, although beginning on a "narrow base," the evolution of
common law bribery demonstrated an "ever-expanding growth in
recognition of an important social interest." R. Perkins, Criminal Law
468 (2d ed. 1969).  See id. at 470-474;  1 W. Burdick, The Law of
Crime 426-429 (1946).  /18/ Federal bribery law, as illustrated by the
numerous bribery statutes enacted prior to 18 U.S.C. 201, has likewise
experienced "ever-expanding growth" in recognition of the fact that
"the essential objective of the bribery laws is to preserve the
integrity of official action from direct and indirect corruption."
Staff of House Comm. on the Judiciary, 85th Cong., 2d Sess., Report on
Federal Legislation 70 (Comm. Print 1958) (hereinafter "Staff
Report").

   The first federal bribery statute, enacted in 1790 and reflecting
the early common law, proscribed the giving of a bribe "to obtain or
procure the opinion, judgment or decree of any judge or judges of the
United States, in any suit, controversy, matter or cause pending
before him" (Act of Apr. 15, 1790, ch. 9, Section 21, 1 Stat. 117).
Some 63 years later, Congress expanded the reach of the law by
prohibiting the bribery of "any member of the Senate or House of
Representatives" as well as "any officer of the United States, or
person holding any place of trust or profit, or discharging any
official function under, or in connection with, any department of the
Government of the United States" (Act of Feb. 26, 1853, ch. 81,
Section 6, 10 Stat. 171).  /19/ By 1878, the scope of federal bribery
law had been broadened further by the passage of statutes that
outlawed the bribery of or the acceptance of bribes by "any person
acting for or on behalf of the United States in any official function,
under or by authority of any department or office of the Government
thereof" (Rev. Stat. 5451 (1878 ed.);  Rev. Stat. 5501 (1878 ed.).
/20/ This language was reenacted in bribery statutes contained in the
Criminal Code of 1909, ch. 321, Sections 39 and 117, 35 Stat. 1096,
1109.

   In 1948, Congress extended still further the reach of federal
bribery law by amending Sections 39 and 117 of the Criminal Code of
1909, 35 Stat. 1096, 1109, so that they "embrace(d) all officers or
persons acting on behalf of any independent agencies or
Government-owned or controlled corporations" (H.R. Rep. No. 304, 80th
Cong., 1st Sess. A14-A15 (1947);  H.R. Rep. No. 152 (Pt. 2), 79th
Cong., 2d Sess. A12-A13 (1946)).  Section 39 was amended to proscribe
the giving of a bribe to "any * * * person acting for or on behalf of
the United States, or any department or agency thereof, in any
official function, under or by authority of any such department or
agency" (Act of June 25, 1948, ch. 645, Section 201, 62 Stat. 691),
while Section 117 was amended to prohibit the acceptance of a bribe by
such a person (Section 202, 62 Stat. 691).  /21/ These amendments were
prompted by United States v. Strang, 254 U.S. 491, 493 (1921), which
had held that a federal conflict of interest statute did not apply to
a person employed by a government-owned and controlled corporation
because the corporation was "a separate entity" from the United States
government.  The committee reports on the 1948 legislation make clear
Congress' unequivocal intent that the bribery statutes should be
applied to any and all persons acting on behalf of the burgeoning
Executive Branch of the United States government (H.R. Rep. No. 304,
supra, at A14-A15;  H.R. Rep. No. 152 (Pt. 2), supra, at A12):

      When Congress enacted (these statutes) as a part of the 1909
      Criminal Code, the present ramifications of the executive branch
      were not foreseen, and, consequently, the language proved
      inadequate to cover every new agency as indicated by the holding
      in the Strang case.  Since then the growth of agencies,
      independent establishments, and Government-owned or controlled
      corporations has been phenomenal.  It is the purpose of the
      inserted language to further what appeared unquestionably to be
      the intent of Congress, namely, to cover all persons acting for
      the United States Government in an official function.

   The steady expansion of federal activity since the passage of the
first bribery statute in 1790 also resulted in the enactment of other
bribery statutes.  The various statutes were not always harmonized
with each other and they came to possess "unnecessary duplication(s)"
as well as "omissions and loopholes." Staff Report, supra, at 70.  The
1952 edition of Title 18 of the United States code contained 23
sections dealing generally with bribery and graft.  18 U.S.C. 201-223.
 /22/ In 1961, President Kennedy, acting on the basis of the report of
his specially appointed Advisory Panel on Ethics and Conflict of
Interest in Government, sent a message to Congress calling for a
revision of the laws governing conflicts of interest among public
officials.  Special Message to the Congress on Conflict-of-Interest
Legislation and on Problems of Ethics in Government, Pub. Papers 326
(Apr. 27, 1961), reprinted in 107 Cong. Rec. 6835 (1961).  Although
the President's message did not include an explicit request for
revision of the bribery laws, Congress took the opportunity to
consolidate the "scraps and rag tags" of federal bribery law into a
single, comprehensive statute.  Special Committee on the Federal
Conflict of Interest Laws, Ass'n of the Bar of the City of New York,
Conflict of Interest and Federal Service 19 n.12 (1960).

   The result of Congress' efforts in 1962 is the statute at issue in
this case, 18 U.S.C. 201.  The objective of the legislation was to
bring uniformity and simplicity to the federal law of bribery, without
"restrict(ing) the broad scope of the (prior) bribery statutes as
construed by the courts." S. Rep. No. 2213, 87th Cong., 2d Sess. 4
(1962).  To accomplish this objective, Congress spoke comprehensively.
 The term "public official" was "broadly defined to mean Member of
Congress, any officer or employee of or person acting for or on behalf
of the United States in an official function" (H.R. Rep. No. 748, 87th
Cong., 1st Sess. 15 (1961);  S. Rep. No. 2213, supra, at 7-8;  108
Cong. Rec. 21980-21983 (1962) (remarks of Sen. Kefauver)).  The phrase
"person acting for or on behalf of the United States" was, in turn,
given a "comprehensive definition" (H.R. Rep. No. 748, supra, at 17):
the phrase includes "within the statutory coverage those persons who
perform activities for the Government, as, for example, through a
contractual arrangement" (id. at 17-18).

   The breadth of the new bribery statute's definition of "public
official" was not the product of inadvertance;  Congress specifically
debated whether to retain the expansive phrase "any person acting for
or on behalf of the United States" in Section 201(a).  Prior to 1962
several bills /23/ were proposed which would have narrowed the
definition of "public official" to include only "an officer, agent, or
employee of the United States in the executive, legislative, or
judicial branch of the Government, or of any agency" (Staff Report,
supra, at 74).  The Department of Justice specifically opposed this
narrow definition.  /24/ Congress heeded the Department's objections
and adopted H.R. 8140, 87th Cong., 1st Sess. (1961), which carried
forward the definitional phrase applying the bribery statute to
persons "acting for or on behalf of the United States." 18 U.S.C.
201(a).  The bill that eventually became 18 U.S.C. 201 was described
in testimony before the Senate as a "comprehensive statute applicable
to all persons performing activities for or on behalf of the United
States." Conflicts of Interest:  Hearing on H.R. 8140 Before the
Senate Comm. on the Judiciary, 87th Cong., 2d Sess. 22 (1962)
(statement of Deputy Attorney General Katzenbach).

   The evolution of federal bribery law in general, and the
legislative history of 18 U.S.C. 201(a) in particular, refute
petitioners' assertions that their activities fall outside the scope
of the statute.  Contrary to petitioner Dixson's assertion (82-5279
Br. 12), 18 U.S.C. 201(a) does not define a "restrictive class of
persons." Rather, the legislative history of the statute demonstrates
that Congress' purpose was to speak expansively to cover all persons
who exercise official power for or on behalf of the federal
government.  It would subvert that purpose to require Congress to add
new language to the statute each time there is a delegation of power
to administer federal programs and expend federal funds to new classes
of persons who act for but are not officers of or employed by the
United States.  /25/

   Petitioner Hinton's related argument, that only persons in an
agency or direct contractual relationship with the United States can
be said to be acting for or on its behalf (82-5331 Br. 7-15), must
likewise be rejected.  The legislative history of 18 U.S.C. 201(a)
demonstrates that Congress considered but did not enact language
limiting the statute to officers, agents and employees of the United
States.  Moreover, although the House committee report on 18 U.S.C.
201(a) mentions that the statute would cover persons performing
activities for the government "through a contractual arrangement"
(H.R. Rep. No. 748, supra, at 18), that relationship is used as an
"example" (ibid.) -- not as a definitional limit -- of the coverage of
the statute.  /26/

   2. There is a substantial consensus among federal district and
appellate courts that persons carrying on activities authorized by
statute, regulation, contract, or agreement as part of a federally
sponsored and supervised program are "acting for or on behalf of the
United States * * * in (an) official function" within the meaning of
18 U.S.C. 201(a).  Contrary to the assertion of petitioner Hinton
(82-5331 Br. 9), liability under 18 U.S.C. 201 and prior federal
bribery statutes has not been limited to "factual situations involving
officers and employees of the government."

   In United States v. Hollingshead, 672 F.2d 751 (1982), the Ninth
Circuit upheld the conviction under 18 U.S.C. 201(c) of the building
service manager of the Los Angeles Branch of the Federal Reserve Bank
of San Francisco.  The evidence presented at trial showed that the
defendent had received bribes and kickbacks to influence him in making
purchase requisitions.  The defendant argued that he could not be
convicted under 18 U.S.C. 201(c) because, as an employee of a private
banking institution, he was not a "public official" within the meaning
of the bribery statute.  The court of appeals rejected the argument,
noting that the defendant's employment required him to "carry( ) out
tasks delegated by a government agency" (672 F.2d at 754).  The
federal reserve bank, moreover, was "clearly created for federal
objectives," and was subject to "substantial federal government
involvement through control by the Federal Reserve Board" (ibid.).  In
these circumstances, the court concluded that the defendant "was
acting for or on behalf of the federal government" under 18 U.S.C.
201(a).

   In United States v. Mosley, supra, the Seventh Circuit upheld the
conviction under 18 U.S.C. 201(g) of a state employee with
responsibility for determining eligibility for jobs funded under the
federal Comprehensive Employment and Training Act of 1973 (CETA), 29
U.S.C. 801 et seq.  The defendant, who had extracted payments in
return for CETA job referrals, argued that as a state employee he was
not liable under the federal bribery statute.  The court of appeals
disagreed.  The federal government had retained extensive supervisory
control over the locally administered CETA programs (659 F.2d at 815),
and "(a)lthough (defendant) was a 'state employee' in the sense that
he had been hired by the state, his salary and the entire cost of the
program he administered were funded by the federal Government for
federal objectives" (ibid.).  The record also demonstrated that
defendant successfully obtained employment for those paying the
bribes, and he therefore "authoriz(ed) the expenditure of federal
funds himself" (id. at 816;  emphasis in original).  Accordingly, the
court concluded that the defendant "was acting 'on behalf' of the
federal Government" and was subject to the prohibition of 18 U.S.C.
201 (659 F.2d at 816).

   The federal bribery statute has also been applied to private
employees charged with the performance of official governmental
functions.  In United States v. Kirby, 587 F.2d 876, 879-880 (7th Cir.
1978), the defendants were convicted for bribing two privately
employed grain inspectors licensed by the United States Department of
Agriculture under the United States Warehouse Act, 7 U.S.C. 252.  The
court of appeals rejected the contention that such inspectors were not
"public officials" within the meaning of 18 U.S.C. 201(a), noting that
"Congress intended the term 'public official' to be 'broadly defined'"
(587 F.2d at 879 n.3, quoting S. Rep. No. 2213, supra, at 7).  The
court concluded that the inspectors "meet the definition of public
official in 18 U.S.C. Section 201(a) since they were acting 'on behalf
of' the Department of Agriculture by issuing the certificates required
by the Warehouse Act and its implementing regulations" (587 F.2d at
880).  /27/

   A predecessor to 18 U.S.C. 201 has been applied to defendants whose
contracts of employment expressly provided that they were "not
considered to be * * * Federal employee(s)." Harlow v. United States,
301 F.2d 361, 370-371 (5th Cir.), cert. denied, 371 U.S. 814 (1962).
In Harlow, the court of appeals sustained the convictions of former
European Exchange System (EES) employees who had solicited payments in
return for allowing others to do business with the various EES post
exchanges on military bases in Europe.  Although the defendant's
employment contracts specified that they were not federal employees,
the court concluded that they were "at least 'persons acting for or on
behalf of the United States' within the purview of (18 U.S.C. (1952
ed.) 202)" (301 F.2d at 370).  /28/ The court reached this conclusion
because the military post exchanges, operated by defendants, were
"'arms of the Government deemed by it essential for the performance of
governmental functions'" (ibid., quoting Standard Oil Co. v. Johnson,
316 U.S. 481, 485 (1942)).

   These cases demonstrate that the reach of 18 U.S.C. 201(a) is
extremely broad.  /29/ The courts, moreover, have never regarded an
employment relationship as a talismanic test for the applicability of
federal bribery law.  /30/ Indeed, this Court, in construing a
predecessor to 18 U.S.C. 201, focused not on the existence of an
employment relationship with the government but rather upon the nature
of the official duties performed on behalf of the United States.
Krichman v. United States, 256 U.S. 363 (1921).  In Krichman, the
Court concluded that petitioner could not be convicted for offering a
bribe to a baggage porter contrary to Section 39 of the Criminal Code
of 1909 (35 Stat. 1096), because the baggage porter was not performing
an official function even though the railroad was under wartime
control and the Court therefore assumed that the porter was a
government employee (256 U.S. at 366-367).  /31/ Thus, the existence
of a "contractual or agency relationship" (82-5331 Br. 5) with the
federal government has never been the conclusive factor in determining
whether a person is acting for or on behalf of the United States.
Rather, as the above cases illustrate, and as petitioner Dixson
correctly states (82-5279 Br. 15), the "phrase 'in any official
function' * * * points the way to the meaning of 'acting for or on
behalf of the United States.'"

   Analyzed in light of the above cases, petitioners, in their roles
as Executive Director and Housing Rehabilitation Coordinator of UNI,
were unquestionably acting "for or on behalf of the United States * *
* in (an) official function" (18 U.S.C. 201(a)).  They were carrying
out "tasks delegated by a government agency" (United States v.
Hollingshead, supra, 672 F.2d at 754), in a program that was "clearly
created for federal objectives" and was subject to substantial federal
oversight and control (ibid.; United States v. Mosley, supra, 659 F.2d
at 815).  Although petitioners were private employees in the sense
that they had been hired by UNI, their "salar(ies) and the entire cost
of the program (they) administered were funded by the federal
Government for federal objectives" (United States v. Mosley, supra,
659 F.2d at 815).  Petitioners, moreover, solicited payments from
various contractors in return for government-funded contracts, thereby
"authorizing the expenditure of federal funds" (United States v.
Mosley, supra, 659 F.2d at 816).  In sum, unlike the porter in
Krichman v. United States, supra, petitioners exercised official
federal power in deciding what firms should benefit from a federal
grant program funded by an act of Congress.

   3. Petitioners rely on two cases from the United States Court of
Appeals for the Second Circuit that impose a restrictive reading on
the statute.  United States v. Del Toro, 513 F.2d 656 (1975);  United
States v. Loschiavo, 531 F.2d 659 (1976).  These cases are not
supported by the language or legislative history of Section 201(a) and
ignore the congressional mandate to construe the federal bribery
statute broadly.  See, e.g., S. Rep. No. 2213, supra, at 4, 7-8;  H.R.
Rep. No. 748, supra, at 15, 17-18.

   In United States v. Del Toro, supra, the court of appeals concluded
that a city employee, who had the responsibility of locating space for
the federally funded Model Cities Program, was not a "public official"
under 18 U.S.C. 201(a).  /32/ The court did not rest its conclusion on
a finding that the city employee was not "acting for or on behalf of
the United States" (513 F.2d at 662).  Rather, the court held that the
employee was not acting "under or by authority of any * * *
department, agency or branch" of the federal government (ibid.).  The
court noted that the bribed official "was a city employee, carrying
out a task delegated to him by his superior, another city employee,"
and although a bribe had been paid to obtain a federally funded lease
from the official, "(t)here were no existing committed federal funds
for the purpose" (ibid.).  The court disregarded the fact that federal
funds paid 100% of the cost of the Model Cities Program, as well as
80% of its nonfederal administrators' salaries (id. at 661-662).
Instead, the court relied on the rule of lenity and the fact that the
federal conflict of interest statute, 18 U.S.C. 203, does not
generally include state employees within its scope (513 F.2d at
662-663).

   In United States v. Loschiavo, supra, the defendant bribed the same
Model Cities administrator whose influence was sought in Del Toro,
again to obtain a leasing arrangement.  The defendant had not raised
the issue of the administrator's "public official" status on direct
appeal, but, following the Del Toro decision, filed a petition under
28 U.S.C. 2255 challenging his conviction on this ground (531 F.2d at
660-661).  The court of appeals found that it was "bound by the
holding in Del Toro on 'the key issue of the nature of (the
administrator's) employment,'" and rejected the government's argument
that the case was distinguishable from Del Toro because federal funds
had actually been authorized for the Loschiavo lease (513 F.2d at
661).  Without examining the legislative history of 18 U.S.C. 201(a)
and without the citation of other authority, the court concluded (531
F.2d at 661):

      The type of public project involved, or the amount of federal
      funding entailed, may be important in applying (some) parts of
      the statute, such as the "official act" requirement of Section
      201(b)(1) or the "fraud * * * on the United States" requirement
      of Section 201(b)(2), but for the purpose of deciding (a
      person's) status as a "public official" under Section 201(a), it
      is not the aspects of the particular project which are of the
      greatest significance, but the character and attributes of his
      employment relationship, if any, with the federal government.

   The United States believes that both cases were wrongly decided.
/33/ Neither the rule of lenity, the legislative history of 18 U.S.C.
201, nor the statutory anaylsis undertaken by the Second Circuit
supports its crabbed interpretation of "acting for or on behalf of the
United States" (18 U.S.C. 201(a)).

   a. The rule of lenity, relied upon by the court of appeals in Del
Toro (513 F.2d at 662) and invoked by petitioners in this Court
(82-5279 Br. 19-20, 82-5331 Br. 12-15), does not justify that court's
restrictive interpretation of the statute.  The rule of lenity is
merely "a( ) guide to statutory construction" (Callanan v. United
States, 364 U.S. 587, 596 (1961)), and is not applicable unless there
is such a "grievous ambiguity or uncertainty in the language and
structure of the Act" (Huddleston v. United States, 415 U.S. 814, 831
(1974)) that even "(a)fter (a court has) 'seize(d) everything from
which aid can be derived * * * ' (it is still) left with an ambiguous
statute." United States v. Bass, 404 U.S. 336, 347 (1971), quoting
United States v. Fisher, 6 U.S. (2 Cranch) 358, 386 (1805).  Moreover,
the rule of lenity "only serves as an aid for resolving an amibuity;
it is not to be used to beget one.  * * * The rule comes into
operation at the end of the process of construing what Congress has
expressed, not at the beginning as an overriding consideration of
being lenient to wrongdoers." Callanan v. United States, supra, 364
U.S. at 596.  As the Court observed in United States v. Moore, 423
U.S. 122, 145 (1975), quoting United States v. Brown, 333 U.S. 18,
25-26 (1948):

      The canon in favor of strict construction (of criminal statutes)
      is not an inexorable command to override common sense and
      evident statutory purpose * * * .  Nor does it demand that a
      statute be given the "narrowest meaning";  it is satisfied if
      the words are given their fair meaning in accord with the
      manifest intent of the lawmakers.  /34/

   Contrary to the apparent conclusion of the Del Toro court (513 F.2d
at 662), there is no ambiguity in 18 U.S.C. 201(a) that justifies
giving the statute an artificially narrow construction.  As we have
already explained, the language of Section 201(a) was chosen to insure
that the bribery statute would not be restricted to employees, but
would be "applicable to all persons performing activities for or on
behalf of the United States" (H.R. Rep. No. 748, supra, at 17;
emphasis added).  Congress' clearly expressed choice should not be
disregarded.

   b. Neither the Del Toro nor the Loschiavo courts analyzed the
legislative history of 18 U.S.C. 201(a).  The court in Del Toro,
however, purported to take a "broader look" at statutes "related" to
18 U.S.C. 201, and concluded that this endeavor supported its
restrictive reading of Section 201(a) (513 F.2d at 662).  The court
noted that the federal conflicts of interest statute, 18 U.S.C. 203,
applied to "special Government employees" and Congress had
specifically delineated the circumstances under which state employees
qualified as "special Government employees" under the statute (513
F.2d at 662-663).  See, e.g., 42 U.S.C. 246(f)(7)(A) (state officers
or employees who are assigned to the Department of Health and Human
Services without appointment are subject to 18 U.S.C. 203);  5 U.S.C.
(& Supp. V) 3374 (state employees assigned or on detail to a federal
government executive agency are deemed employees of the agency for
purposes of 18 U.S.C. 203).  The court reasoned that if Section 201(a)
were given a broad reading, there would be no need for such statutes
specifically including state employees within the reach of 18 U.S.C.
203 (513 F.2d at 663).

   The fundamental error of this analysis is the court of appeals'
failure to recognize that 18 U.S.C. 201 has a completely different
structure from 18 U.S.C. 203 and the other conflict of interest
provisions of the Code, 18 U.S.C. 202-209.  Section 201 was designed
as a comprehensive bribery statute applying a general proscription to
all "public officials" as "broadly defined" in subsection (a) (S. Rep.
No. 2213, supra, at 7).  Sections 202-209, on the other hand, are
designed to "balance the dual objectives of promoting government
integrity and facilitating the government's recruitment and retention
of needed personnel" (S. Rep. No. 2213, supra, at 7).  The full
prohibitions of Section 203 are, therefore, explicitly limited to
"officers and employees" of the Executive, Legislative and Judicial
branches (18 U.S.C. 203(a));  a lesser array of prohibitions are
imposed on "special government employee(s)" (18 U.S.C. 203)).  Given
this structure, it is clear that further specification is necessary to
clarify when state employees should be deemed to be covered by Section
203;  and the fact that Congress has so specified has no implications
for the general bribery statute, which comprehensively covers all
persons who act in any official capacity for or on behalf of the
United States.  /35/

 C. The Extent Of Federal Involvement In The Housing Program
Administered By Petitioners Compels The Conclusion That They Are
"Public Officials" Under 18 U.S.C. 201(a)

   The extent of federal involvement in the housing rehabilitation
program administered by petitioners under the Housing and Community
Development Act of 1974 leads to the conclusion that petitioners were
"acting for or on behalf of the United States * * * in (an) official
function" (18 U.S.C. 201(a)) when they extracted payments in return
for federally funded construction contracts.  Although petitioners
assert that federal involvement in UNI's housing rehabilitation
program was insubstantial (82-5279 Br. 22-24;  82-5331 Br. 18-19) and
argue that they performed no official functions in their roles as
Executive Director and Housing Rehabilitation Coordinator (82-5279 Br.
25;  82-5331 Br. 19), the record in this case refutes these claims and
fully supports the court of appeals' conclusion that petitioners were
"public officials" within the meaning of Section 201(a).  Petitioner
Dixson's related contention that the court of appeals' construction of
"public official" is unconstitutionally vague (82-5279 Br. 22) is
likewise without merit.

   1. Contrary to the assertion of petitioner Dixson (82-5279 Br. 17),
the housing rehabilitation program administered by petitioners was not
merely "a local project to accomplish local objectives." The
congressional reports accompanying the legislation that became the
Housing and Community Development Act of 1974, 42 U.S.C. (& Supp. IV)
5301 et seq., demonstrate that the grant program created by the Act
was intended to meet national housing objectives while at the same
time simplifying the administration of federal funds (H.R. Rep. No.
93-1114, 93d Cong., 2d Sess. 6-7, 47 (1974), adopted in H.R. Conf.
Rep. No. 93-1279, 93d Cong., 2d Sess. 123 (1974):

      The committee bill proposes an application and review procedure
      which has two basic purposes:  first, that essential national
      goals and objectives, as developed over nearly three decades of
      Federal involvement in housing and community development, be
      retained and that communities be required to use block grant
      funds to achieve those objectives;  and second, that the
      lengthy, burdensome, and generally frustrating process by which
      HUD approves applications for various community development
      grants be simplified to the greatest extent possible.

                      * * * * *

      (The purpose of the Act is to further) the development of a
      national urban growth policy by consolidating various complex
      and overlapping assistance programs into a consistent system of
      Federal aid which * * * furthers achievement of the national
      goal of a decent home and a suitable living environment for
      every American family * * * .

   The 1974 legislation sough to achieve these goals by maintaining
close federal supervision over the expenditure of federal housing
funds, while at the same time delegating substantial authority to
state and local governments in the administration of those funds.
/36/

   As noted by petitioner Dixson (82-5279 Br. 16), Congress considered
and rejected a proposal to distribute housing rehabilitation funds to
the states "with absolutely no strings attached." /37/ Instead,
Congress adopted extensive application and review standards, and
authorized the Secretary of HUD to promulgate regulations to insure
that the grant program established by the Act would "provide
communities with substantial latitude and flexibility to determine
their particular needs and the range of activities they deem necessary
to meet those needs, without derogating from HUD's responsibility to
assure that nationally-established objectives are being met in a
reasonable manner" (H.R. Rep. No. 93-1114, supra, at 8) (emphasis
added).  Although petitioner Dixson asserts that the resulting
government control was "of the most general type" (82-5279 Br. 16),
Congress clearly called for extensive "executive oversight of programs
to insure that Federal funds are being used efficiently to achieve
national objectives" (S. Rep. No. 93-693, supra, at 55).  Thus, as the
court of appeals below correctly concluded (J.A. 79), the delegation
of authority to administer funds under the Act "was to streamline the
funding process rather than to abdicate federal control over the
substantive aspects of the (housing) program."

   In accordance with this policy, the Housing and Community
Development Act of 1974 and its implementing regulations provide a
comprehensive scheme of federal supervision over the local
administration of grant funds.  Applicants under the Act are required
to submit to the Secretary of HUD for federal approval a three-year
comprehensive community development plan, a detailed program of
implementation, and a housing assistance plan prior to the receipt of
any funds.  42 U.S.C. (& Supp. IV) 5304.  Activities that are eligible
for funding under the grant program are set forth in great detail by
the Act (42 U.S.C. (& Supp. IV) 5305), and annual performance reports
are required to be submitted to determine compliance with the
objectives of the Act (42 U.S.C. (Supp. IV) 5304(d);  24 C.F.R.
570.900-570.913).  The Secretary of HUD has a right of access to all
financial records of grantees and subgrantees (24 C.F.R. 570.509) and
is directed to make reviews and audits on an annual basis.  42 U.S.C.
(& Supp. IV) 5304(d), (g).  Grant recipients are required to comply
with federal equal opportunity, labor, safety, environmental, and
other standards.  42 U.S.C. (& Supp. IV) 5304(h), 5309-5310;  24
C.F.R. 570.600-570.611.  The Secretary of HUD, moreover, is authorized
to terminate or limit funding for noncompliance with the requirements
of federal law.  42 U.S.C. 5311;  24 C.F.R. 570.910-570.913.
Significantly, the Act specifically contemplates the administration of
grant funds by nonprofit corporations, like UNI, when such
corporations are "designated by the chief executive officer of a State
or a unit of general local government to undertake a Community
Development Program in whole or in part" (42 U.S.C. 5302(c)).  See
also 24 C.F.R. 570.204.  /38/ Therefore, as the court of appeals
properly concluded, "the statute, regulations, and legislative history
manifest Congress' intent to promote efficient, effective federal
supervision over the Community Development Block Grant program.  The
extent of federal involvement is such that Dixson and Hinton were
acting on behalf of the United States in their administration of the
federal funds under the program" (J.A. 79).

   2. Petitioner Hinton protests that the holding of the court below
is erroneous because, carried to its logical conclusion, "anyone
acting in a federally funded program could be said to be 'a person
acting for or on behalf of the United States" (82-5331 Br. 22).  This
assertion ignores the fact that the court of appeals also analyzed
petitioners' "positions within the (federally funded) program" (J.A.
80) in finding that they fell within the terms of Section 201(a).  The
decision below rests on petitioners' official status as administrators
of federal grants.

   Although petitioners could not be fired by HUD, their salaries and
the entire cost of the UNI rehabilitation program were supported by
HUD funds.  These funds, moreover, could be terminated by HUD for
noncompliance with the objectives of the Act.  42 U.S.C. 5311;  24
C.F.R. 570.910-570.913.  Petitioners, furthermore, possessed and
exercised the authority to award housing rehabilitation contracts,
paid for with grant funds, to contractors who agreed to pay them a ten
percent kickback (J.A. 80;  see supra n.16).  In these circumstances,
petitioners "were acting as federal agents in the sense of having
discretion in administering the expenditure of federal funds" (ibid.).

   Petitioners, in short, were not just "anyone acting in a federally
funded program" (82-5331 Br. 22).  Rather, as petitioner Dixson
correctly states, they were "person(s) whose salar(ies) (were) derived
from Federal funds and who ha(d) some influence in the dispersal of
Federal funds" (82-5279 Br. 25).  On these facts, the court of appeals
properly found that petitioners were "acting for or on behalf of the
United States * * * in (an) official function" (18 U.S.C. 201(a)).

   3. Petitioner Dixson suggests that the lower court's construction
of "public official" under 18 U.S.C. 201(a) is unconstitutionally
vague (82-5279 Br.22).  This contention is insubstantial.

   A statute may be found to be unconstitutionally vague if it fails
to "give the person of ordinary intelligence a reasonable opportunity
to know what is prohibited, so that he may act accordingly," or if it
"impermissibly delegates basic policy matters to policemen, judges,
and juries for resolution on an ad hoc and subjective basis" (Grayned
v. City of Rockford, 408 U.S. 104, 108-109 (1972)).  Section 201(a)
suffers from neither infirmity, as it "provides sufficient notice of
the type of conduct it prohibits" and "is susceptible of consistent
judicial interpretation." Comment, The Federal Bribery Statute:  An
Argument for Cautious Revision, 68 Ky. L.J. 1026, 1029 (1980).

   Section 201(a), to be sure, defines "public official" in broad
terms.  Persons of ordinary capacity and intelligence, however, can
certainly determine when they are "acting for or on behalf of the
United States * * * in any official function" (18 U.S.C. 201(a)).  A
criminal law is "not unconstitutional merely because it throws upon
men the risk of rightly estimating a matter of degree." International
Harvester Co. v. Kentucky, 234 U.S. 216, 223 (1914).  /39/ The court
of appeals' construction of Section 201(a), moreover, is
straightforward and can be readily and consistently applied to
divergent factual circumstances.  In essence, the court below analyzed
(1) the extent of federal involvement in the community development
block grant program and (2) petitioner's roles in administering that
program (J.A. 78-80).  As we have already shown, this approach has
also been adopted by most other federal district and appellate courts.
 Far from creating a "nightmare" for "attorneys, defense lawyers and
trial judges" (82-5279 Br. 24), the court below has construed the
terms of Section 201(a) in accordance with its plain meaning and in a
manner that is consistent with the weight of existing precedent.

 D. The Federal Government Has A Strong And Legitimate Interest In
Prosecuting Petitioners For Their Missue Of Government Funds

   Relying on general notions of comity and federalism, petitioners
assert that they do not fall within Section 201(a)'s definition of
"public official" because it "would be presumptuous of Congress to
draft legislation that intrudes into the area of State criminal law"
(82-5279 Br. 22;  see also 82-5331 Br. 14-15).  This argument ignores
the strong federal interest in prosecuting petitioners for their
corrupt administration of federal funds.

   In 1948, Congress expanded the ambit of federal bribery law in
express recognition of the "phenomenal" growth of "agencies,
independent establishments, and government-owned or controlled
corporations" employing persons that performed official governmental
functions traditionally discharged by federal officers and employees
(H.R. Rep. No. 304, supra, at A14-A15;  H.R. Rep. No. 152 (Pt. 2),
supra, at A12;  see also Reviser's Notes, 18 U.S.C. (1952 ed.) 201).
The burgeoning development of federal grants-in-aid programs since
that time has resulted in further delegation of governmental authority
to the states and numerous other local entities.  The Office of
Management and Budget has reported that (Circular No. A-102, reprinted
in 45 Fed. Reg. 21836, 21840 (1980)):

      Federal financial assistance to State and local governmental and
      other non-Federal domestic organizations has increased from 3
      billion in fiscal year 1955 to $90 billion for fiscal year 1980.
       This assistance is provided through a network of over 1,100
      programs administered by 52 Federal departments, agencies, and
      commissions.  The programs are carried out by 50 States, 3,000
      counties, nearly 90,000 local governments, and innumerable
      nongovernmental organizations.

   Housing and Community Development programs, like the one involved
in the present case, received congressional authorizations of $3.65
and $3.8 billion for fiscal years 1979 and 1980, the period covered by
petitioners' indictment.  Pub. L. No. 95-128, Section 103(a), 91 Stat.
1113;  see H.R. Conf. Rep. No. 95-634, 95th Cong., 1st Sess. 46
(1977);  H.R. Rep. No. 95-236, 95th Cong., 1st Sess. 3, 32 (1977).
Funding for Housing and Community Development programs is projected to
reach $4.11 billion in fiscal year 1983.  Pub. L. No. 96-399, Section
103(a)(1), 94 Stat. 1618;  see H.R. Conf. Rep. No. 96-1420, 96th
Cong., 2d Sess. 6, 77 (1980).

   There is no substance to the argument that it is inappropriate to
apply federal (rather than state) criminal law to prevent and punish
corruption in the distribution of federal funds pursuant to a federal
program;  the fact that state and local officials (and private
persons) participate in the distribution of those funds and the
administration of that program does not justify the conclusion that
they should be insulated from the federal criminal law.  The purpose
of the federal bribery statute is to assure that federal governmental
powers are exercised honestly and are not corrupted by inducements for
private gain.  The power to determine who shall be given federal money
to rehabilitate houses under a federal housing program is an important
federal governmental power.  It is critically important to the success
of the federal program that this power to choose among applicants for
these possibly lucrative rehabilitation contracts not be corrupted by
bribery.  It is therefore preposterous to suggest that reading a broad
federal criminal statute naturally to encompass this important federal
purpose would somehow represent an undue intrusion upon the criminal
jurisdiction of the states.  /40/ As the district court noted in
United States v. Gallegos, 510 F. Supp. 1112, 1113-1114 (D.N.M. 1981):

      the United States, not the (state) is harmed by the improper
      influence allegedly exerted * * * in connection with the * * *
      grant program.  There is no reason to think that Congress would
      not intend such an injury to be punishable under federal law.
      /41/

   Similarly, there is no strong reason why the burden of preserving
the integrity of the distribution of federal funds pursuant to federal
programs should be placed on understaffed local law enforcement
authorities.  The responsibility of guaranteeing the integrity of
federal programs rests on the federal government.

                              CONCLUSION

   The decision of the court of appeals should be affirmed.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   D. LOWELL JENSEN

      Assistant Attorney General

   PAUL M. BATOR

      Deputy Solicitor General

   RICHARD G. WILKINS

      Assistant to the Solicitor General

   R. CHRISTOPHER LOCKE

      Attorney

   MARCH 1983

   /1/ "J.A." refers to the joint appendix filed in this Court.

   /2/ Petitioner Hinton was charged in Counts I-VI and VIII-XI with
soliciting and receiving bribes in violation of 18 U.S.C. 201(c).  He
was sentenced to 7 1/2 years' imprisonment on Counts I-VI, to be
followed by three years' probation on Counts VIII-XI (J.A. 3-8, 24).
Petitioner Dixson was charged in Counts I-VII, X and XI with
soliciting and receiving bribes in violation of 18 U.S.C. 201(c), and
was sentenced to 7 1/2 years' imprisonment on Counts I-VII, to be
followed by three years' probation on Counts X and XI (J.A. 3-8, 23).
Execution of sentence was suspended pending appeal (J.A. 23, 24).

   /3/ The Act, inter alia, authorizes grant funds to be used for the
rehabilitation of blighted or deteriorating public facilities, the
construction of centers for the handicapped, the clearance,
demolition, removal and rehabilitation of buildings and improvements,
and the financing of rehabilitation efforts on privately owned
properties when incidental to other activities.  42 U.S.C. (& Supp.
IV) 5305.

   /4/ Private nonprofit entities may acquire and rehabilitate
blighted or deteriorating public facilities, construct centers for the
handicapped, rehabilitate public and private residential structures,
and finance the rehabilitation of privately owned structures.  24
C.F.R. 570.204(b).  See also 24 C.F.R. 570.201-570.203.

   /5/ 24 C.F.R. 570.900 sets forth "performance standards" against
which the Secretary of HUD measures a grantee's or subgrantee's
compliance with the specific requirements of the Act and its
implementing regulations.  24 C.F.R. 570.905 requires preparation of
financial management reports, relocation and acquisition reports,
equal opportunity reports, and any other report required by the
Secretary.  Other regulations prescribe how these reports will be
maintained by grantees and examined by HUD.  24 C.F.R.
570.907-570.909.  Following agency review of these reports to
determine whether a grantee or subgrantee "has carried out a program
substantially as described in its application" in compliance with the
"requirements of the Act" and "other applicable laws and regulations"
(24 C.F.R. 570.909(a)), HUD may take corrective and remedial actions
that include seeking reimbursement for any funds improperly expended,
reducing or withdrawing a grant, or referring a matter to the Attorney
General for appropriate mandatory or injunctive relief.  24 C.F.R.
570.910-570.913.

   /6/ The Davis Bacon Act, 40 U.S.C. 276a to 276a-5, requires
government contractors to pay laborers and mechanics the prevailing
wage rate in their particular locale.

   /7/ Metro reallocated grants are paid out of funds appropriated
for, but not utilized by, the community development block grant
program (J.A. 26).

   /8/ UNI accounted to the city for its expenditure of grant funds,
and the city accounted to HUD for all federal funds received under the
Housing and Community Development Act of 1974 (42 U.S.C. (Supp. IV)
5304(d);  Gov't Exh. 13;  J.A. 27, 32-33, 41-64, 70-72).  Contrary to
the assertion of petitioner Dixson (82-5279 Br. 5-6), the grants
administered by UNI were audited in early 1980.  The audit report, by
Arthur Andersen & Co. and dated April 10, 1980, stated that the
examination "was made in accordance with * * * provisions of the
Department of Housing and Urban Development's Audit Guide and
Standards for Community Development Block Grant Recipients" (Gov't
Exh. 12 at 1).

   /9/ The Housing Committee of UNI was responsible for awarding
contracts to successful bidders.  In spite of the committee's formal
responsibility for this function, however, contracts were awarded
without committee approval (Tr. 226-228;  J.A. 39).  Petitioner Hinton
in fact told one contractor that submitting the bids to the Housing
Committee was just a formality (Tr. 79, 106).

   /10/ All payments to petitioners were made in cash in various
locations, such as in the men's restroom and underneath the fire
escape at UNI headquarters, in petitioner Dixson's house, in
petitioner Hinton's apartment, and in the parking lot outside a bank
where a contractor had just cashed a check drawn on UNI's account (Tr.
184, 190).

   /11/ UNI's amended grant agreement with the City of Peoria
expressly requires compliance with the Copeland Anti-Kickback Act, 18
U.S.C. 874 (J.A. 71).  That statute provides as follows (18 U.S.C.
874):

      Whoever, by force, intimidation, or threat of procuring
      dismissal from employment, or by any other manner whatsoever
      induces any person employed in the construction, prosecution,
      completion, or repair of any public building, public work, or
      building or work financed in whole or in part by loans or grants
      from the United States, to give up any part of the compensation
      to which he is entitled under his contract of employment, shall
      be fined not more than $5,000 or imprisoned not more than five
      years, or both.

   Although the express wording of the statute would seem to reach the
conduct of petitioners in this case, the statute has been
restrictively construed.  In United States v. Carbone, 327 U.S. 633,
637 (1946), this Court found that the statute was designed to protect
the wages that laborers are entitled to receive under the Davis-Bacon
Act, 40 U.S.C. 276a et seq., reasoning that the statute must be "read
and applied in light of the evils which gave rise to (it) and the aims
which the proponents sought to achieve." Thus, the statute applies to
laborers on federally financed construction projects, to prevent
kickbacks of a portion of their wages to their employers.  327 U.S. at
638-642.  The First Circuit has concluded that the statute's
application is limited to this purpose, holding that the statute
cannot be applied to payments made by contractors for the award of
housing contracts under a HUD rehabilitation program.  Slater v.
United States, 562 F.2d 58, 59-62 (1st Cir. 1976).

   /12/ In Mosley, the court upheld the conviction under 18 U.S.C.
201(g) of an intake and eligibility officer employed by the State of
Illinois under the Comprehensive Employment and Training Act of 1973
(CETA), 29 U.S.C. 801 et seq.  The defendant in Mosley solicited
payments from applicants in return for federally funded CETA jobs (659
F.2d at 813).  The Mosley court relied upon the extensive federal
supervision of the CETA program (id. at 814-815) and noted that the
defendant's "referals were successful in obtaining jobs for those who
paid the bribe" (id. at 816).  The defendant, therefore, was
"authorizing the expenditure of federal funds himself" (ibid.,
emphasis in original).  The court held that the fact that the
defendant was a state employee did not prevent application of 18
U.S.C. 201(g) to his misdeeds because he was "acting 'on behalf' of
the federal Government" within the meaning of the statute (659 F.2d at
816).

   /13/ The court of appeals in United States v. Metro Management
Corp., supra, upheld the conviction under 18 U.S.C. 201(c) of a
principal officer and agent of a corporation that had been awarded an
area management broker contract by HUD.  In return for a ten percent
payment, the defendant had submitted bids on housing contracts to HUD
for agency approval.  The defendant had argued before the district
court that because the bids were actually accepted by HUD, application
of the federal bribery statute to him was improper.  The district
court rejected the argument, noting that the defendant was "enabled to
exercise discretion to act for and on behalf of HUD in operating the
system" (401 F. Supp. at 1230).  The fact that the defendant was an
employee of a private corporation "and not of the United States does
not prevent him from acting as a 'public official' as defined in 18
U.S.C. Section 201(a)" (401 F.Supp. at 1230).

   /14/ 18 U.S.C. 201(b) similarly makes it a crime for anyone to
offer any thing of value to a public official with the intent of
influencing any official act, aiding in the commission of a fraud on
the United States, or inducing an act in violation of official duty.

   /15/ "Official act" is also expansively defined as including "any
decision or action or any question, matter, cause, suit, proceeding or
controversy, which may at any time be pending, or which may by law be
brought before any public official." 18 U.S.C. 201(a).

   /16/ The fact that petitioners' job descriptions did not authorize
them to grant rehabilitation contracts (82-5279 Br. 6;  82-5331 Br. 4)
does not undermine the court of appeals' finding (J.A. 80) that they
had discretion in the expenditure of federal funds.  Indeed, without
such discretion it is hard to think why petitioners would have been
worth bribing.  The evidence presented at trial clearly showed that
"the contractors favored by (petitioners) were successful in their
bids," and in their dealings with the contractors neither petitioner
"displayed any aspect of hypobulia" (J.A. 80).  Furthermore,
petitioners' actual ability to award the rehabilitation contracts is
immaterial to their culpability under 18 U.S.C. 201(c).  "Neither the
ability to perform nor the actual performance of some identifiable
official act as quid pro quo is necessary for a violation of (the
federal bribery) statute( )." United States v. Evans, 527 F.2d 455,
481 (5th Cir. 1978).  Indeed, an official can be convicted for bribery
even if he lacks the authority to perform the act for which the bribe
was paid.  Ibid.; United States v. Birdsall, 233 U.S. 223, 231-236
(1914).

   /17/ Blackstone defined bribery in the eighteenth century as an
offense involving a judge "or other person concerned in the
administration of justice," and included the giver of the bribe as
well as its recipient as an offender.  4 W. Blackstone, Commentaries
on the Laws of England 139-140 (1765).  Hawkins, writing after
Blackstone, defined bribery to include not only the corruption of
judges and other persons involved in the administration of justice,
but also "the taking or giving of a reward for offices of a public
nature." 1 W. Hawkins, Pleas of the Crown 311-313 (1977).

   /18/ See also W. Clark & W. Marsahll, A Treatise on the Law of
Crimes 1032-1034 (7th ed. 1967) ("It is not even necessary that the
person bribed shall be a public officer.  It is enough if the duty in
the performance of which he is influenced is a public duty.")

   /19/ Other early statutes prohibited the acceptance of bribes by
judges (Rev. Stat. 5499 (1878 ed.)), or by Members of Congress (Rev.
Stat. 5500 (1878 ed.)).  See also 18 U.S.C. (1952 ed.) 204-207
(bribery of and acceptance of bribes by Members of Congress and
judges).

   /20/ Section 5451 proscribed the promise or offer of a bribe to
"any person acting for or on behalf of the United States," while
Section 5501 prohibited such persons from asking for or accepting a
bribe.

   /21/ The 1948 amendments extended the language of former Section
39, 35 Stat. 1096, by "inserting words 'or any department or agency
thereof', and by substituting words 'such department or agency' for
'department or office of the Government thereof'" (H.R. Rep. No. 304
supra, at A14).  Section 117, 35 Stat. 1109, was amended by
substituting the words "or agency thereof" for "or office of the
Government thereof" (H.R. Rep. No. 304, supra, at A15).  The purpose
behind the amendment of Section 117 was to clarify the intent of
Congress "to include within its scope all government bodies" (ibid.).

   /22/ According to a congressional staff report, "(n)ine sections *
* * prohibit(ed) in general terms the bribery of Government employees,
Members of Congress, judges and judicial officers (including jurors),
and witnesses," while the rest of the 23 sections dealt with
variations of bribery and conflicts of interest with respect to
specific government employees (United States attorneys, marshals,
revenue officers, customs officials, and banking officers).  Staff
Report, supra, at 65-66;  footnotes omitted.

   /23/ H.R. 3411, 87th Cong., 1st Sess. (1961);  H.R. 2156, 86th
Cong., 1st Sess. (1959);  H.R. 12547, 85th Cong., 2d Sess. (1958).

   /24/ Assistant Attorney General Nicholas deB. Katzenbach testified
in hearings prior to the enactment of 18 U.S.C. 201(a):

      (t)he definition of "public official" * * * does not include any
      reference to persons "acting for or in behalf of the United
      States." This latter phrase appears in the existing law and we
      think its removal would be undesirable.  Under the proposed
      definition it could be construed that under certain
      circumstances, a person acting in behalf of the United States
      would not be held to be an "officer, agent, or employee of the
      United States" as these terms are used in the bill.  Persons
      acting in such a capacity should be protected from bribe offers
      (or punished for their acceptance).

   Federal Conflict of Interest Legislation:  Hearings on H.R. 302,
H.R. 3050, H.R. 3411, H.R. 3412, and H.R. 7139 Before the Antitrust
Subcomm. of the House Comm. on the Judiciary, 87th Cong., 1st Sess. 36
(1961).

   /25/ Nor should Congress be required, as petitioner Dixson suggests
(82-5279 Br. 12-15), to specify in every statute delegating an
official function that the delegee is subject to federal bribery law.
The fact that 7 U.S.C. 84(d) expressly includes state and local grain
inspectors as "public officials" within the reach of the federal
bribery statutes does not evidence a congressional intent to permit
other "persons acting for or on behalf of the United States" (18
U.S.C. 201(a)) to escape liability.  As this Court recently noted in
Herman & MacLean v. Huddleston, No. 81-680 (Jan 24, 1983), slip op. 11
n.23 (quoting SEC v. Joiner Corp., 320 U.S. 344, 350-351 (1943)), the
maxim "expressio unius est exclusio alterius" must be "'subordinated
to the doctrine that courts will construe the details of an act in
conformity with its dominating general purpose.'" The dominating,
general purpose of 18 U.S.C. 201 is to deter and punish corruption in
public service by all who exercise official power for or on behalf of
the United States.

   /26/ Significantly, the House Report on 18 U.S.C. 201(a) refers
approvingly to United States v. Levine, 129 F.2d 745 (2d Cir. 1942),
as an appropriate judicial construction of the phrase "person acting
for or on behalf of the United States" (H.R. Rep. No. 748, supra, at
18).  Despite petitioner Hinton's efforts to distinguish the case
(82-5331 Br. 11-12), in many respects Levine presented a much less
persuasive argument for the assertion of federal bribery jurisdiction
than the present case.  In Levine, the court of appeals held that an
employee of the Market Administrator for the New York Metropolitan
Milk Marketing Area was a "public official" within the meaning of the
federal bribery statute.  Although the Market Administrator was
himself appointed by the Secretary of Agriculture, his employee, the
defendant Levine, was neither appointed by the Secretary nor paid with
federal funds.  Rather, his services were paid for by funds obtained
directly from the milk handlers in the area.  Even more significantly,
Levine makes it clear that although the Market Administrator was an
agent of the State of New York, "that did not make him or his
employees in their federal capacity any less subject to the criminal
provisions regulating the conduct of persons acting on behalf of the
United States" (129 F.2d at 748).  Therefore, even though petitioners'
direct employment or contractual relationship was with a private
corporation, that fact alone does not insulate them from liability
under 18 U.S.C. 201(c) "in their federal capacit(ies)" as
administrators of federal funds (129 F.2d at 748).

   /27/ The inspectors in Kirby were not licensed under the United
States Grain Standards Act, 7 U.S.C. 71 et seq., relied upon by
petitioner Dixson (82-5279 Br. 12-18).  Although the Grain Standards
Act does provide (7 U.S.C. 84(d)) that inspectors licensed under the
Act shall be deemed to be "persons acting for or on behalf of the
United States" for purposes of 18 U.S.C. 201(a), the Warehouse Act
licensing provisions (7 U.S.C. 252) contain no such specification.
Thus, under petitioner Dixson's analysis (82-5279 Br. 12-18), the
court of appeals in Kirby erroneously upheld the defendants'
convictions.

   /28/ 18 U.S.C. (1952 ed.) 202 prohibited "an officer or employee
of, or person acting for or on behalf of the United States, in any
official capacity" from asking, accepting, or receiving any money with
intent to influence "his decision or action on any question, matter,
cause, or proceeding which may at any time be pending, or which may by
law be brought before him in his official capacity."

   /29/ These cases are merely a sampling of instances where federal
criminal jurisdiction has been exerted over persons "acting for or on
behalf of the United States * * * in (an) official function" (18
U.S.C. 201(a)), even though the official had no direct employment
relationship with the federal government.  Numerous other cases have
reached the same results in analogous factual settings.  See, e.g.,
United States v. Levine, supra, 129 F.2d at 747-748 (upholding the
bribery conviction of an employee of the Market Administrator for the
New York Metropolitan Milk Marketing Area, even though the employee
was hired by the sate and was not paid with federal funds);  United
States v. Gallegos, 510 F. Supp. 1112, 1113-1114 (D.N.M. 1981)
(denying motion to dismiss indictment under 18 U.S.C. 201(b) of a
state employee responsible for administering federal grants to
homeowners under programs supervised by the Farmers Home
Administration);  United States v. Griffin, supra, 401 F. Supp. at
1230 (conviction under 18 U.S.C. 201(c) of an area management broker
responsible for soliciting and receiving bids for rehabilitation of
properties in a program sponsored by HUD);  United States v. Raff, 161
F. Supp. 276, 279-281 (M.D. Pa. 1958) (denying motion to dismiss
indictment under predecessor to 18 U.S.C. 201 of a partner in a
private architectural engineering firm under contract with the
Department of the Army to supervise construction at a military
installation).

   /30/ For example, even though federal employees were not expressly
included within the coverage of the 1873 and 1909 bribery statues,
this and other federal courts had no difficulty in concluding that
such employees fell within the reach of the statutes as persons
"acting for or on behalf of the United States" (Rev. Stat. 5451 (1878
ed.)).  See e.g., United States v. Birdsall, 233 U.S. 223, 2238-231
(1914) (employees selected under the authority of the Secretary of the
Interior to control liquor traffic among the Indians could be
prosecuted under Section 117 of the Criminal Code of 1909 (35 Stat.
1109), where bribe was paid to influence official advisory function);
Felder v. United States, 9 F.2d 872, 873-874 (2d Cir. 1925), cert.
denied, 270 U.S. 648 (1926) (assistant United States Attorney comes
within the purview of Section 39 of the Criminal Code of 1909 (35
Stat. 1096), where bribe was paid to influence return of indictment);
United States v. Ingham, 97 F. 935, 936 (E.D. Pa. 1899) (secret
service operative employed by the Secretary of the Treasury comes
within the terms of Rev. Stat. 5451 (1878 ed.) where bribe was paid to
influence delegated law enforcement function).

   /31/ Contrary to the assertion of petitioner Hinton (82-5331 Br.
12-14), the Court in Krichman v. United States, supra, did not hold
that the baggage porter was not acting for or on behalf of the United
States;  rather the Court concluded that the porter was not
discharging an official function (256 U.S. at 365).  The Court
reasoned, in a manner fully consistent with the decision of the court
of appeals below, that the bribery statute "aims to punish the
attempted bribery or bribery of officials and those exercising
official functions under or by the authority of a department or office
of the Government.  * * * It inclueds those, not officers, who are
performing duties of an official character" (256 U.S. at 366).  See
also In re Yee Gee, 83 F. 145, 146-147 (N.D. Wash. 1897) (bribe paid
to government translator did not fall within Rev. Stat. 5451 (1878
ed.) because it was not paid to influence translator's performance of
his official functions);  United States v. Gibson, 47 F. 833, 835
(N.D. Ill. 1891) (bribe offer to internal revenue officer in return
for burning a distillery did not come within Rev. Stat. 5451 (1878
ed.) because the bribe was offered "for an act entirely outside the
official function of the officer to whom (it was offered)").

   /32/ The city employee had been bribed in order to influence his
selection of office space for the Model Cities program (513 F.2d at
659).

   /33/ The United States Attorney's Manual states that Del Toro was
"wrongly decided" and suggests that "whenever similar cases arise in
other circuits, prosecution under section 201 is encouraged" (U.S.
Attorney's Office, U.S. Dep't of Justice, U.S. Attorney's Manual
9-85.110 (1977)).  Arguably, however, the city employee in Del Toro
and Loschiavo may not have been discharging an "official (federal)
function" (18 U.S.C. 201(a)) in leasing office space for the Model
Cities Program since that task was apparently delegated by another
city employee, not by statute, regulation, contract, or agreement with
the federal government.  The petitioners' administration of federal
community development grants, however, which is authorized by statute,
regulation, and contracts between the federal government, the City of
Peoria and UNI, presents a much stronger case for application of 18
U.S.C. 201.  See infra pp. 33-36.

   /34/ See also, e.g., United States v. Naftalin, 441 U.S. 768,
778-779 (1979);  United States v. Culbert, 435 U.S. 371, 379 (1978);
Scarborough v. United States, 431 U.S. 563;  577 (1977);  Iannelli v.
United States, 420 U.S. 770, 789 (1975);  id. at 795 (Douglas, J.,
dissenting);  id. at 798 (Brennan, J., dissenting).

   /35/ Indeed, Congress' decision to omit reference to Section 201 --
the "pure bribery" statute -- in provisions rendering state employees
subject to federal conflicts of interest law would reasonably indicate
that the legislature believed that such employees were already covered
by the broad definition of "public official" in Section 201(a), but
not by the narrower provisions of Section 203 and related statutes.

   The Del Toro decision has had a negative reception in Congress.
The most recent version of the proposed Criminal Code Reform Act, S.
1630, 97th Cong., 2d Sess., Sections 1351-1352 (1982), would prohibit
bribery and graft involving a "public servant," defined as including
(id. at Section 1351(c)(6)):  "an agent of a State or local government
charged by a federal statute, or by a regulation issued pursuant
thereto, with administering monies or property derived from a federal
program, and the official action or legal duty is related to the
administration of such program." The Senate Report accompanying the
legislation explains that the provision "is designed to overcome the
holding in the Del Toro case" (S. Rep. No. 97-307, 97th Cong., 1st
Sess. 432 (1981)).  S. 1630 has not yet been reintroduced in the 98th
Congress.

   /36/ See also S. Rep. No. 93-693, 93d Cong., 2d Sess. 48 (1974)
(adopted in H.R. Conf. Rep. No. 93-1279, supra, at 123) ("The
existence of healthy urban communities * * * is essential to the
Nation's welfare and requires expansion of public and private
investment, sustained action by Federal, State and local governments,
and improved program planning, implementation, and evaluation
efforts").

   /37/ See S. Rep. No. 93-693, supra, at 2 (criticizing the automatic
distribution of federal funds to cities "without proper regard to the
use of such funds in carrying out national objectives specified in the
(Housing and Community Development) Act").

   /38/ Although a state or local government has "the choice of which
local non-profit organization(s)" (82-5331 Br. 17) will administer a
grant under the Act, those organizations must meet strict HUD
eligibility standards.  42 U.S.C. 5302(c);  24 C.F.R. 570.204(a)(2).

   /39/ Petitioners, moreover, cannot plausibly claim that they were
surprised by the application of federal criminal law to their
activities.  UNI's proposal to the City of Peoria was to achieve the
goals "set forth in the Housing and Community Development Act" (Gov't
Exh. 19 at 2), and the amended grant agreement between the city and
UNI expressly provided the UNI would comply with a broad range of
federal laws, including wage and safety standards, equal employment
opportunity requirements, and the Copeland Anti-Kickback Act (J.A.
71-72).  Petitioners' knowledge of these requirements, as well as
their certain knowledge of the source of UNI's funding, was surely
adequate to put them on notice that they were "acting for or on behalf
of the United States" (18 U.S.C. 201(a)).

   /40/ Indeed, it is not entirely clear that petitioners, as officers
of UNI, could be prosecuted under the Illinois bribery statute, which
by its express terms applies only to the bribery of or receipt of
bribes by "any public officer, public employee, juror or witness."
Ill. Ann. Stat. ch. 38, Section 33-1(d), (e) (Smith-Hurd Cum. Supp.
1982).  A "public officer" is defined by statute as "a person who is
elected to office pursuant to statute, or who is appointed to an
office which is established, and the qualifications and duties of
which are prescribed, by statute, to discharge a public duty for the
State" (Ill. Ann. Stat. ch. 38, Section 2-18 (Smith-Hurd Cum. Supp.
1982)), while a "public employee" is defined as a "person, other than
a public officer, who is authorized to perform any official function
on behalf of, and is paid by, the State or any of its political
subdivisions" (Ill. Ann. Stat. ch. 38, Section 2-17 (Smith-Hurd Cum.
Supp. 1982) (emphasis added).  The single reported state case
construing these legislative definitions demonstrates that the reach
of the state bribery statute is not as extensive as the federal
statute.  People v. Drish, 24 Ill. App. 3d 225, 228-229 (1974) (member
of city planning commission is a "public officer" because the
commission discharged a public duty and the commission as well as the
qualifications of its members are established by statute).

   /41/ In an analogous context, this Court has applied the federal
fraud statute to contractors who submitted collusive bids on state
projects funded by the federal government.  United States ex rel.
Marcus v. Hess, 317 U.S. 537, 544 (1943).  The Court rejected the
claim that the federal fraud statute did not apply because the federal
funds were channelled through the state government and respondents
therefore lacked "a direct contractual relationship" with the United
States (317 U.S. at 541).  The Court noted that "Government money is
as truly expended whether by checks drawn directly against the
Treasury to the ultimate recipient by grants in aid to states.  * * *
These funds are as much in need of protection from fraudulent claims
as any other federal money, and the statute does not make the extent
of their safeguard dependent upon the bookkeeping devices used for
their distribution.  * * * The fraud here could not have been any more
of an effort to cheat the United States if there had been no state
intermediary" (id. at 544;  footnote omitted).  By a parity of
reasoning, petitioners in this case should be held liable for their
acceptance of bribes because, although they were private employees of
UNI, they were nevertheless administering the distribution of federal
funds and "bookkeeping devices used for their distribution" (317 U.S.
at 541) should not determine whether petitioners were "acting for or
on behalf of the United States * * * in (an) official function" (18
U.S.C. 201(a)).