# Crandon v. United States Boeing Company Inc.

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## Concurring Opinion

    Scalia
United States Supreme Court
494 U.S. 152
Crandon v. United States Boeing Company Inc.
No. Nos 88-931, 88-938 Argued: Nov. 6, 1989. --- Decided: Feb 27, 1990
Syllabus
When the individual petitioners terminated their employment with petitioner Boeing Company to accept important positions in the Executive Branch of the Federal Government, Boeing made to each, before he became a Government employee, an unconditional lump-sum payment to mitigate the substantial loss each expected to suffer by reason of his change in employment. Subsequently, the United States filed a civil complaint in the District Court, seeking damages from Boeing and the imposition of a constructive trust on the moneys received by the individual petitioners. The complaint alleged that the payments had been made to supplement the individual petitioners' compensation as federal employees, and that they created a conflict of interest situation which induced the breach of the fiduciary duty of undivided loyalty owed by the individual petitioners to the Government, as measured by, inter alia, 18 U.S.C. § 209(a), which makes it a crime for a private party to pay, and a Government employee to receive, supplemental compensation for the employee's Government service. The court held, among other things, that § 209(a) had not been violated because the payments were made before the recipients had become Government employees and were not intended to compensate them for Government service. The Court of Appeals reversed, holding, inter alia, that employment status at the time of payment is not an element of a § 209(a) violation, and that the finding that the payments were not intended to be supplemental compensation for Government service was clearly erroneous.
Held: Section 209(a) does not apply to a severance payment that is made to encourage the payee to accept Government employment, but is made before the payee becomes a Government employee. Pp. 157-168.
(a) Section 209(a)'s text indicates that employment status is an element of the offense. Neither of its two prohibitions-the one directed to every person who "receives" any salary supplement "as compensation for his services as an officer or employee" and the other directed to every person who "pays," or makes any contribution to the salary of, "any officer or employee"-directly specifies when a payment must be made or received. However, a literal reading of the second prohibition supports the conclusion that the payee must be a Government employee at the time the payment is made, and the prohibitions appear to be coextensive in their coverage of both sides of a single transaction. Pp. 158-160.
(b) The legislative history of § 209(a), the language of §§ 209(b) and (c)-which obviously focus on certain other payments that are made while the recipient is a Government employee-and the unambiguous language covering preemployment payments that Congress used in its contemporaneous revision of other bribery and conflicts provisions indicate that Congress did not intend to change the substance of § 209(a)'s predecessor statute when it eliminated language that had unquestionably required a recipient of a payment to be a Government employee at the time the payment was made. Pp. 160-164.
(c) A literal reading of § 209(a) serves one of the conflicting policies that motivated the enactment of the statute the public interest in recruiting personnel of the highest quality and capacity-since it allows corporations to encourage qualified employees to make their special skills available to the Government. While the other policy justifications for § 209(a) concerns that the private paymaster will have an economic hold over the employee, that the payment will engender bitterness among fellow employees, and that the employee might tend to favor his former employer-are not wholly inapplicable to unconditional preemployment severance payments, they by no means are as directly implicated as they are in the cases of ongoing salary supplements. Pp. 164-168.
(d) To the extent that any ambiguity over the temporal scope of § 209(a) remains, the rule of lenity requires that it should be resolved in petitioners' favor unless and until Congress plainly states that its intent has been misconstrued. P. 168.
845 F.2d 476 (CA4 1988), reversed.
STEVENS, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ., joined. SCALIA, J., filed an opinion concurring in the judgment, in which O'CONNOR and KENNEDY, JJ., joined, post, p. 168.
Phillip A. Lacovara for petitioners in No. 88-931.
Benjamin S. Sharp, Washington, D.C., for petitioner in No. 88-938.
Edwin S. Kneedler, Washington, D.C., for respondent, U.S., in both cases.
Justice STEVENS delivered the opinion of the Court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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