PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4170

LARRY E. JENNINGS, SR.,

Defendant-Appellant.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Frederic N. Smalkin, District Judge.

(CR-95-283-S)

Argued: July 11, 1997

Decided: November 19, 1998

Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.

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Affirmed by published opinion. Judge Michael wrote the opinion, in

which Judge Niemeyer and Judge Motz joined.

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COUNSEL

ARGUED: George J. Terwilliger, III, MCGUIRE, WOODS, BATTLE & BOOTHE, L.L.P., Washington, D.C., for Appellant. Kathleen

O'Connell Gavin, Assistant United States Attorney, Baltimore, Maryland, for Appellee. ON BRIEF: Laura A. Colombell, MCGUIRE,

WOODS, BATTLE & BOOTHE, L.L.P., Washington, D.C.; E. Duncan Getchell, Jr., Richmond, Virginia, for Appellant. Lynne A. Battaglia, United States Attorney, Baltimore, Maryland, for Appellee.

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OPINION

MICHAEL, Circuit Judge:

A jury found Larry Jennings, Sr., a housing repair contractor, guilty

of three counts of violating 18 U.S.C. § 666, a statute that prohibits

corruption of officials who administer state and local programs

receiving federal funds. On appeal Jennings argues that § 666 outlaws

only bribes, not gratuities, and that the government did not prove that

the payments he made to a city official were actually bribes. We conclude, however, that the evidence was sufficient to convict Jennings

of bribery. Jennings also contends that a new trial is required because

the jury instructions misstated the "corrupt intent" element of bribery

by failing to require proof of intent to engage in a quid pro quo. We

reject this contention under a plain error analysis. Accordingly, we

affirm.

I.

The Housing Authority of Baltimore City (HABC) is a local government agency that operates and maintains subsidized housing units

within the City. HABC receives funds from the United States Department of Housing and Urban Development. In late 1991 HABC began

a special program to renovate hundreds of vacant housing units

owned by that agency in Baltimore. To expedite the renovations, a

housing emergency was declared, which allowed HABC to dispense

with the usual bidding procedures for selecting contractors. As a

result, HABC developed a list of about thirty contractors who were

awarded work by purchase order without competitive bidding. This

no-bid program was known as the Vacancy Special Funding Program

(VSFP). Between 1992 and 1994 Charles Morris, a HABC employee,

was the administrator of VSFP. Morris had the discretion to decide

what jobs were awarded to each contractor on the list as well as the

authority to negotiate the price for each contract. 1

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1 Morris, who was the government's main witness, testified pursuant to

a plea agreement. Morris pled guilty to a violation of 18 U.S.C. § 666 for

accepting money from Jennings and several other contractors doing

VSFP work.

 2
Under the VSFP program, contractors submitted an estimate of the

cost to rehabilitate a housing unit, and an in-house estimator at HABC

prepared a second, independent estimate. Morris sometimes did the

in-house estimate himself. Morris reviewed the two estimates in every

case. If the contractor's estimate and the in-house estimate differed by

less than ten percent, Morris forwarded the paperwork for formal

approval and the issuance of a purchase order. If the estimates differed by more than ten percent, Morris either increased the in-house

estimate or negotiated a reduction in the contractor's estimate. Upon

the issuance of the purchase order, the contractor was authorized to

begin work. When the job was finished, a HABC inspector working

under Morris inspected the unit. If the inspector found that the work

had been performed satisfactorily, the inspector issued a certificate of

completion to the contractor. The contractor then submitted the certificate to Morris for payment.

Jennings was a construction contractor who owned two businesses,

Elias Contracting Co. (Elias) and Environmental Protection Co.

(EPC). He was vice-president of both companies and his daughter,

Georgia Jennings Page (Page), was president. In 1991 Jennings

became interested in obtaining HABC contracts for Elias. He and his

son, Larry Jennings, Jr. (Jennings Jr.), met with Morris at a restaurant

that year to discuss the possibility of doing VSFP work. Jennings Jr.

was a member of the HABC Board of Commissioners, which oversaw

HABC's activities. Sometime after this meeting Morris placed Elias

on the VSFP contractor list.

While Elias was performing VSFP work in 1993, Jennings made

cash payments to Morris on five occasions. The first payment

occurred in early spring when Morris went to Jennings's office to

deliver a HABC check for work that Elias had completed. There, Jennings gave $200 to Morris and told Morris that he (Jennings) would

not "have made it" without Morris's help. After this payment, VSFP

contracts and payment checks flowed on a regular basis from HABC

to Jennings's companies.

Later that spring, on April 26, 1993, Elias deposited in its account

a $75,786.43 check from HABC for work performed under the VSFP

program. That same day, Jennings telephoned Morris to arrange a

meeting in Jennings's car. As the two men drove around downtown

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Baltimore, Jennings handed Morris a paper bag containing between

$2,500 and $3,000 in cash. In thanking Morris, Jennings acknowledged that Morris's help had been essential. The following day Elias

submitted five new proposals for VSFP work totaling $86,609. Over

the next several days Morris reviewed these proposals and approved

them at a total of $86,061, very close to the amount Elias had sought.

To approve the jobs for that level of payment, Morris had to increase

several of the in-house estimates.

On May 4, 1993, Elias deposited another HABC check in the

amount of $46,408.75, received in payment for VSFP work. The next

day Jennings again met with Morris. Jennings gave Morris $2,500 in

cash and thanked him, just as before. Over the next week Elias submitted eight new proposals for VSFP work, with a total price tag of

$170,440. Morris approved all of the proposals for a total price of

$163,973. In authorizing this work, Morris bumped up some of the inhouse estimates, approved several proposals for the exact amount

Elias requested, and approved others for amounts slightly less than

the Elias estimates.

In June 1993 Jennings's other company, EPC, began efforts to

obtain work under another no-bid program at HABC, lead testing on

VSFP units. Morris gave Page a sample proposal to use in preparing

EPC's submission for this work. Soon thereafter, Page gave Morris

a draft of EPC's $254,000 proposal, and Morris worked over a weekend to help Page finalize the proposal. At about the same time, Elias

submitted eight new proposals, totaling $151,535, for VSFP rehabilitation work. On June 25, 1993, Morris approved all eight of these proposals for amounts near or equal to what Elias requested, for a total

authorization of $148,841. That same day HABC issued a purchase

order awarding the lead testing contract to EPC, and Elias deposited

a HABC check for $16,506. Also on that day, Jennings gave Morris

$1,500 in cash. Jennings told Morris, "If it wasn't for you, I don't

know what I would have done." In July 1993 Jennings gave Morris

an additional $200 in cash.

Jennings used various ploys to get the cash for the three payments

charged in the indictment. For the first payment (of $2,500 to $3,000)

Jennings, on April 26, 1993, wrote a $3,000 check on the Elias

account, payable to Moe Construction, a small company that had sub-

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contracted with Elias to rehabilitate two VSFP units. Jennings, however, did not deliver the check to Moe Construction. Rather, Jennings

took the check to Charles "Moe" Armwood, who ran a check cashing

and liquor store business called Doc's Liquors. Moe Armwood cashed

the check for Jennings, endorsed it, and deposited it in the bank

account of Moe Corporation II, one of Armwood's business accounts.

That same day (April 26) Jennings took the cash proceeds from the

check and made a payment to Morris.

Cash for the second payment, for $2,500, came from a $15,000

check, dated May 5, 1993, that Jennings wrote on the Elias account,

payable to B.H.S., another Elias subcontractor. Jennings did not

deliver the check to B.H.S. Once again, he took the check to Moe

Armwood at Doc's Liquors, who cashed it. Jennings used part of the

cash to pay Morris.

Money for the last charged payment came from a $1,500 personal

check that Jennings cashed at Doc's Liquors on June 26, 1993. Jennings took the full $1,500 to Morris that day.

Although Morris admitted to accepting cash from Jennings, he testified that he took gifts, not bribes. Morris also said that while he

often assisted Jennings's companies with paperwork, he never did any

special favors for Jennings's companies as a result of the gifts. Morris

admitted, however, that Jennings was the only contractor to whom he

personally delivered HABC payment checks. Morris dropped off Jennings's checks at his (Jennings's) place of business, while all other

contractors picked up their checks at Morris's office. Finally, Morris

claimed that he put Elias on the no-bid contractor list at the request

of his supervisor.

James Karim, who was a subcontractor for Elias on three VSFP

jobs, was another witness for the government. According to Karim,

Jennings required him to do extra work that was not covered by the

subcontracts and then refused to pay for this work. Karim's partner

called Morris at the VSFP office to complain about Jennings's methods of dealing, including his failure to pay for all work completed.

When Jennings learned of the call, he told Karim that the calls were

of "no use." Jennings said, the "people downtown report right back to

[me] . . . . I have that under control. So, your complaints are . . .

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worthless." As Jennings predicted, Morris took no action on Karim's

complaint.

Jennings testified in his own defense. He denied giving any money

to Morris.

II.

Jennings argues that district court erred when it denied his motion

for a judgment of acquittal under Fed. R. Crim. P. 29. We must sustain his conviction if the evidence, viewed in the light most favorable

to the government, was sufficient for a rational trier of fact to find the

essential elements of the crime beyond a reasonable doubt. See United

States v. Brewer, 1 F.3d 1430, 1437 (4th Cir. 1993).

Jennings claims that the statute under which he was convicted, 18

U.S.C. § 666, prohibits "bribes" but not"gratuities." Specifically, Jennings says that the evidence showed that he gave gratuities, not

bribes, to Morris because Morris testified that he did no special favors

for Jennings and that he (Morris) therefore did not abuse his office.

From this, Jennings concludes that the government failed to prove

that he violated § 666. We disagree. Regardless of whether § 666

applies to gratuities, there was sufficient evidence to convince a rational juror beyond a reasonable doubt that the payments Jennings made

to Morris were bribes.

A.

Some background on 18 U.S.C. § 666 is useful. We begin with the

pertinent language of the statute, which is entitled"Theft or bribery

concerning programs receiving Federal funds":

Whoever . . . corruptly gives, offers or agrees to give anything of value to any person, with intent to influence or

reward an agent of an organization or of a State, local or

Indian tribal government, or any agency thereof, in connection with any business, transaction, or series of transactions

of any such organization, government, or agency involving

anything of value of $5000 or more; shall be fined under

this title, imprisoned not more than 10 years, or both.

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18 U.S.C. § 666(a)(2) (1988)(emphasis added).

This subsection prohibits payoffs to state and local officials who

influence the distribution of federal funds. Before§ 666 was enacted

in 1984, a circuit split raised doubt as to whether state and local officials could be considered "public officials" under the general federal

bribery statute, 18 U.S.C. § 201. See S. Rep. No. 98-225, at 369

(1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3510. Congress acted

to mend the split without awaiting word on this issue from the

Supreme Court.2 See id. at 370, 1984 U.S.C.C.A.N. at 3511. By enacting § 666 Congress supplemented § 201 to make clear that federal law

prohibits "significant acts of . . . bribery involving Federal monies

that are disbursed to private organizations or State and local governments pursuant to a Federal program." Id. at 369, 1984 U.S.C.C.A.N.

at 3510.

Jennings's argument on appeal -- that he paid gratuities, not bribes

-- draws upon the language of § 201. Section 201 prohibits two types

of payments to federal officials: (1) bribes and (2) illegal gratuities.

See United States v. Muldoon, 931 F.2d 282, 287 (4th Cir. 1991). Section 201(b), the bribery section, punishes anyone who "corruptly

gives, offers or promises anything of value to any public official . . .

with intent . . . to influence any official act." 18 U.S.C. § 201(b)(1)(A)

(1988) (emphasis added). Section 201(c), the illegal gratuity section,

punishes anyone who "gives, offers, or promises anything of value to

any public official . . . for or because of any official act performed

or to be performed by" a public official. § 201(c)(1)(A) (emphasis

added).

Whether a payment is a bribe or an illegal gratuity under § 201

depends on the intent of the payor. A bribe requires that the payment

be made or promised "corruptly," that is, with"corrupt intent." Under

§ 201 "corrupt intent" is the intent to receive a specific benefit in

return for the payment. See Muldoon, 931 F.2d at 287; United States

v. Duvall, 846 F.2d 966, 971 n.6, 972 (5th Cir. 1988); United States

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2 Shortly after § 666 became law, the Court held in Dixson v. United

States, 465 U.S. 482, 496 (1984), that persons who "occupy a position

of public trust with official federal responsibilities," including state and

local officials, are "public officials" under 18 U.S.C. § 201.

 7
v. Irwin, 354 F.2d 192, 197 (2d Cir. 1965). In other words, the payor

of a bribe must intend to engage in "`some more or less specific quid

pro quo'" with the official who receives the payment. Duvall, 846

F.2d at 972 (quoting United States v. Arthur, 544 F.2d 730, 734 (4th

Cir. 1976)); accord United States v. Sun-Diamond Growers of

California, 138 F.3d 961, 966 (D.C. Cir. 1998) (discussing the quid

pro quo element of § 201(b) bribery), cert. granted in part, 67

U.S.L.W. 3151 (U.S. Nov. 2, 1998) (No. 98-131), and cert. denied,

67 U.S.L.W. 3261 (U.S. Nov. 2, 1998) (No. 98-374); United States

v. Johnson, 621 F.2d 1073, 1076 (10th Cir. 1980) (same); cf. also

United States v. Niederberger, 580 F.2d 63, 68 (3d Cir. 1978)

(explaining that under § 201 the intent to"corruptly" receive a payment means the intent to effectuate a quid pro quo); United States v.

Strand, 574 F.2d 993, 995 (9th Cir. 1978) (same). Accordingly, a

goodwill gift to an official to foster a favorable business climate,

given simply with the "`generalized hope or expectation of ultimate

benefit on the part of the donor,'" does not constitute a bribe.

Johnson, 621 F.2d at 1076 (quoting Arthur , 544 F.2d at 734); cf. also

United States v. Allen, 10 F.3d 405, 411 (7th Cir. 1993) ("Vague

expectations of some future benefit should not be sufficient to make

a payment a bribe."). An illegal gratuity, on the other hand, is a payment made to an official concerning a specific official act (or omission) that the payor expected to occur in any event. No corrupt intent

to influence official behavior is required. The payor simply must

make the payment "for or because of" some official act. See Muldoon,

931 F.2d at 287; accord Sun-Diamond Growers, 138 F.3d at 966

(explaining that "in contrast to bribery, [a] gratuity and the [relevant]

official act need not motivate each other"); cf. also United States v.

Griffin, 154 F.3d 762, 764 (8th Cir. 1998) ("The core difference

between a bribe and a gratuity is . . . the quid pro quo, or the agreement to exchange cash for official action."); United States v. Mariano,

983 F.2d 1150, 1159 (1st Cir. 1993) ("The essential difference

between a bribe and an illegal gratuity is the intention of the bribegiver to effect a quid pro quo."). In sum, the line between a payment

made "corruptly . . . with intent to influence" an official act and a payment made "for or because of" an official act is the same line that separates a bribe from an illegal gratuity. Cf. United States v. Kummer,

89 F.3d 1536, 1540 (11th Cir. 1996); United States v. Lopreato, 83

F.3d 571, 575 (2d Cir.), cert. denied , 117 S. Ct. 187 (1996).

 8
Because the distinguishing factor between a bribe and an illegal

gratuity is the intent behind the payment, the timing of the payment

in relation to the official act for which it is made is (in theory) irrelevant. Cf. Griffin, 154 F.3d at 764. Bribes often are paid before the

fact, but "it is only logical that in certain situations the bribe will not

actually be conveyed until the act is done." United States v. Campbell,

684 F.2d 141, 148 (D.C. Cir. 1982). By this same logic, illegal gratuities, which typically follow the act for which they are paid, may be

conveyed before the occurrence of the act (so long as the payor

believes the official has already committed himself to the action). See

id.; Mariano, 983 F.2d at 1159. This can cause the distinction

between bribes and illegal gratuities, which is clear in theory, to look

somewhat hazy in real life. See United States v. Biaggi, 674 F. Supp.

86, 87-88 (E.D.N.Y. 1987) (Weinstein, C.J.), aff'd, 853 F.2d 89 (2d

Cir. 1988). Without knowing the payor's intent, one cannot know

whether the payment was a bribe or an illegal gratuity. Thus, without

proof of corrupt intent on the payor's part, a bribery conviction is

impossible.

Direct evidence of intent is unnecessary, however. To prove bribery under § 201, the government is not required to prove an expressed

intention (or agreement) to engage in a quid pro quo. Such an intent

may be established by circumstantial evidence. See United States v.

Massey, 89 F.3d 1433, 1439 (11th Cir. 1996); United States v. Biaggi,

909 F.2d 662, 684 (2d Cir. 1990). Also, the government need not

show that the defendant intended for his payments to be tied to specific official acts (or omissions). Bribery requires the intent to effect

an exchange of money (or gifts) for specific official action (or inaction), but each payment need not be correlated with a specific official

act. See Arthur, 544 F.2d at 734. Rather, it is sufficient to show that

the payor intended for each payment to induce the official to adopt

a specific course of action. See id. In other words, the intended

exchange in bribery can be "this for these" or"these for these," not

just "this for that." Further, it is not necessary for the government to

prove that the payor intended to induce the official to perform a set

number of official acts in return for the payments. The quid pro quo

requirement is satisfied so long as the evidence shows a "course of

conduct of favors and gifts flowing to a public official in exchange

for a pattern of official actions favorable to the donor." Id. (internal

quotation omitted). Thus, all that must be shown is that payments

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were made with the intent of securing a specific type of official action

or favor in return. For example, payments may be made with the

intent to retain the official's services on an "as needed" basis, so that

whenever the opportunity presents itself the official will take specific

action on the payor's behalf. See id. This sort of "I'll scratch your

back if you scratch mine" arrangement constitutes bribery because the

payor made payments with the intent to exchange them for specific

official action.

Although the distinction between bribes and illegal gratuities under

§ 201 is sometimes difficult to apply, the distinction has real consequences nevertheless. "Payment of an illegal gratuity is a lesser

included offense of bribery." Muldoon, 931 F.2d at 287. This is

because corrupt intent is a "different and higher" degree of criminal

intent than that necessary for an illegal gratuity. United States v.

Brewster, 506 F.2d 62, 72 (D.C. Cir. 1974). As a result, the punishment for bribing a public official is much more severe than the punishment for paying an illegal gratuity. Compare 18 U.S.C. § 201(b)

(bribery is punishable by up to 15 years in prison) with id. § 201(c)

(illegal gratuity is punishable by up to two years in prison). Thus, it

is important that a jury be properly instructed on the difference

between a bribe and a gratuity in cases when there is a question about

the nature of the payment alleged.

B.

Jennings argues that § 666 adopts § 201's bribe regime and then

stops. He points out that § 666(a)(2) only prohibits payments given

"corruptly," just like the general bribery provision, § 201(b), and

unlike the illegal gratuity provision, § 201(c). This similarity to

§ 201(b) (and corresponding dissimilarity to§ 201(c)), Jennings

claims, shows that § 666 prohibits only bribery. Moreover, § 666's

punishment provision allows up to ten years in prison, with nothing

comparable to § 201(c)'s two-year cap for an illegal gratuity. See 18

U.S.C. § 666(a). Thus, Jennings argues that in order to convict him,

the government had to prove that he bribed Morris.

As we explain below (in part II.C.), Jennings's conviction must

stand because the evidence was sufficient to prove that he intended

to influence Morris's official acts by paying him money, that is, Jen-

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nings intended to engage in a quid pro quo. Jennings's intent therefore

was sufficiently corrupt to call his payments "bribes" (or "rewards"3).

As a result, we need not decide today whether § 666 also covers "gratuities," that is, payments made for or because of an official act.4

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3 One difference between the language of § 666(a)(2) and § 201(b) is

that the former prohibits gifts made with the corrupt intent "to influence

or reward" officials while the latter prohibits gifts made with the corrupt

intent "to influence" officials. The additional words "or reward" in

§ 666(a)(2) have no import in Jennings's case, however. At the very

least, we read these words to embody the established rule (discussed in

part II.A., above) that a bribe can be promised before, but paid after, the

official's action on the payor's behalf. This definition accords with the

traditional meaning of the term "reward" as something offered to induce

another to act favorably on one's behalf (for example, a bounty offered

for the capture of a fugitive). See, e.g., Webster's II: New Riverside University Dictionary 1007 (2d ed. 1988); Black's Law Dictionary 1322 (6th

ed. 1990). Thus, for this case we will assume that the "or reward" language in § 666(a)(2) clarifies that the distinction between a bribe and a

gratuity is a matter of intent, not simply a matter of timing (as some

courts have suggested, see, e.g., United States v. Coyne, 4 F.3d 100, 111

(2d Cir. 1993)).

Because (as we discuss below) the evidence was sufficient to convict

Jennings under the traditional (and somewhat narrow) meaning of "reward," we need not decide whether § 666(a)(2) actually uses the word in

a broader sense. Specifically, we need not address the government's

argument that the "or reward" language in§ 666(a)(2) actually refers to

no-strings-attached gifts, that is, payments that would be "illegal gratuities" under § 201(c). And, we likewise need not resolve the puzzle created by the government's argument, namely, why § 666(a)(2)'s language

prohibiting "rewards" given "corruptly" should be interpreted to cover

gratuities, when under § 201 any payment made"corruptly" is a bribe,

not an illegal gratuity. Compare United States v. Bonito, 57 F.3d 167,

171 (2d Cir. 1995) (saying that § 666 covers gratuities "made with intent

to reward past conduct, so long as the intent to reward is corrupt"), with

United States v. Lasanta, 978 F.2d 1300, 1309 (2d Cir. 1992) (explaining

that under § 201 a bribery conviction requires proof of corrupt intent

while an illegal gratuity conviction does not), and United States v.

Zacher, 586 F.2d 912, 915 (2d Cir. 1978) (same).

4 The Second Circuit has said that§ 666 prohibits payment of both

bribes and gratuities. See Bonito, 57 F.3d at 171; see also United States

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C.

We turn to the evidence in Jennings's case. To begin with, Jennings is mistaken to focus on Morris's testimony that he believed he

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v. Crozier, 987 F.2d 893, 898-99 (2d Cir. 1993) (considering the former

version of § 666). The Seventh Circuit has suggested the same by holding that an indictment under § 666(a)(2) need not allege "any specific

quid pro quo." United States v. Agostino, 132 F.3d 1183, 1190 (7th Cir.

1997), cert. denied, 118 S. Ct. 1526 (1998). These decisions blur the

longstanding distinction between bribes and illegal gratuities. By allowing § 666(a)(2) convictions to stand without proof that the defendant

intended to engage in a quid pro quo, these cases appear to conclude that

§ 666 abandons the traditional meaning of"corrupt intent" attributed to

the statute on which § 666 is based, § 201. A close reading of these cases

reveals, however, that there is still room for an argument that § 666 does

not prohibit gratuities. This argument is that § 666 accepts the longstanding bribe/gratuity distinction, adopts the traditional meaning of "corrupt

intent" in § 201, and criminalizes only bribes.

The Seventh Circuit in Agostino did not acknowledge that under § 201

courts equate "corrupt intent" with the intent to engage in a relatively

specific quid pro quo. In fact, the court did not mention § 201, so we cannot know whether it considered the customary distinction between bribes

and illegal gratuities. Agostino's persuasive weight is therefore subject to

debate.

The Second Circuit has discussed the relationship between § 201 and

§ 666, as well as the bribe/gratuity distinction of § 201, in Crozier. See

987 F.2d at 898-99. According to that court, a reading of § 666's original

and current versions reveals that the section has always prohibited both

bribes and gratuities. See id. (original version); Bonito, 57 F.3d at 171

(current version). There is an argument, however, for distinguishing both

Crozier and Bonito.

In Crozier the defendant (convicted under a former version of § 666)

claimed that his payments were gratuities, not bribes, and that gratuities

were not prohibited by § 666. In order to address this claim, the Second

Circuit analyzed 18 U.S.C. § 666(c) (Supp. II 1985), the original version

of what is now § 666(a)(2). See 987 F.2d at 898-900. As first enacted,

§ 666(c) outlawed payments made "for or because of" the official acts of

certain state or local officials. (Section 666(c) also did not use the word

"corruptly.") Thus, § 666 adopted the same language that appears in

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accepted gifts, not bribes, from Jennings. Under§ 666(a)(2) the intent

of the payor, not the intent of the payee, is determinative of whether

a crime occurred. See Mariano, 983 F.2d at 1159 ("The common

thread that runs through [18 U.S.C. §§ 666(a)(2) and 201(b)] is the

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§ 201's gratuity section, § 201(c). The Crozier court focused on this "for

or because of" language, saying it was what distinguished § 201(c) from

that statute's bribery provision, § 201(b). See id. at 898-99. The Crozier

court reasoned that Congress, by using the same"for or because of" language in § 666(c), intended for § 666 (which was enacted to supplement

§ 201) to prohibit gratuities. See id.

In support of his contention that § 666(c) did not prohibit gratuities,

the defendant in Crozier (who was convicted for conduct that occurred

in July 1986) argued that the statute's scope was broadened to include

gratuities by an October 1986 amendment, which replaced the original

version of the statute with (essentially) the current version. See id. After

the 1986 amendment § 666 prohibited (as it still does) payments made

"corruptly . . . with intent to influence or reward" certain state and local

officials. This "corruptly . . . with intent to influence or reward" language

in § 666(a)(2) replaced the "for or because of" language in the old

§ 666(c). The Crozier defendant argued that the 1986 addition of the

"corruptly . . . with intent to influence or reward" language expanded the

reach of § 666 to cover gratuities. Thus, he contended that his conviction

was invalid because the statute prohibited only bribes when his conduct

occurred.

The Crozier court, after consulting the statutory history of the 1986

amendment to § 666, rejected the defendant's claim that § 666 had been

amended to cover gratuities. See id. The court noted that this amendment

made § 666 "parallel" to 18 U.S.C. § 215 (the bank bribery statute),

which itself was amended in 1986. Id. The 1986 amendments to §§ 215

and 666, the Crozier court said, were intended "to limit the scope of

these statutes, and not to broaden them to include new theories." Id. (citing H.R. Rep. No. 99-335, at 5-6 (1986), reprinted in 1986 U.S.C.C.A.N.

1782, 1786-87; H.R. Rep. No. 99-797, at 30 n.9 (1986), reprinted in

1986 U.S.C.C.A.N. 6138, 6153 n.9). However, Crozier did not specify

the nature or degree of the limitation on the two statutes. See 987 F.2d

at 898-99. Since Crozier did not address the scope of the new

§ 666(a)(2), it did not decide the converse of the question presented by

the defendant in that case -- whether the 1986 amendment to § 666

narrowed the scope of the statute's prohibition to exclude gratuities.

The Second Circuit purportedly took up this question in Bonito. In

Bonito the defendant argued exactly the opposite of what the defendant

 13
intent of the payer, by the greasing of palms, to affect the future

actions of a public official."); see also Campbell, 684 F.2d at 148 n.11

("the donor may be convicted of giving a bribe even despite the fact

_________________________________________________________________

argued in Crozier. The Bonito defendant claimed that the 1986 amendment to § 666 (which replaced the old "for or because of" language of

§ 666(c) with the new "corrupt . . . with intent to influence or reward"

language of § 666(a)(2)) removed gratuities from the scope of § 666's

prohibition. See 57 F.3d at 171. He argued that § 666 no longer reached

gratuities because that section now lacked the "for or because of" language that the Crozier court had relied upon in deciding that § 666's language was similar to that of § 201's illegal gratuity provision. But the

Bonito court seemed to disagree. The court said that it was "[f]atal to [the

defendant's] argument . . . that the deleted[`for or because of'] language

has been replaced with language that is to the same effect[, `to influence

or reward']". Id. Here the court apparently meant that the new

§ 666(a)(2), like the old § 666(c), prohibits both bribes and gratuities.

However, a closer analysis of Bonito suggests that its holding was the

same as ours today: that regardless of whether § 666(a)(2) reaches gratuities, the statute reached the defendant's conduct because the defendant

paid bribes. First, although the Bonito court may have meant to say (in

the statement we just quoted) that gratuities are prohibited by the new

§ 666, it may have meant something else. Immediately after the court

made the statement quoted above, it also said that"the current statute

continues to cover payments made with intent to reward past official

conduct, so long as the intent to reward is corrupt." Id. The court then

said (in upholding the trial court's jury charge) that § 666(a)(2) requires

that "the corrupt agreement, offer or payment must precede the official

act to be influenced or rewarded." Id. These latter two statements

describe bribes, not gratuities, as those words are traditionally defined

(for § 201 purposes). See part II.A., above. It is therefore possible that

the Bonito court did not mean to hold that§ 666(a)(2) prohibits gratuities. Second, the Bonito court's sufficiency of the evidence holding

shows that the payments at issue in that case were, quite clearly, bribes.

See id. at 174-75 (holding that "there was enough evidence to allow the

jury to find that the [defendant and the official] had corruptly agreed that

[the defendant] would give the car [to the official as a] bribe in exchange

for favors [from the official]"; see also id. (again referring to the defendant's gift as a "bribe"). As a result, it is clear that, whatever the Bonito

court meant to say about whether § 666 prohibits gratuities, its discussion

of gratuities was unnecessary to the disposition of the case.

 14
that the recipient had no intention of altering his official activities"

(internal quotation omitted)). Thus, the only intent at issue was Jen-

_________________________________________________________________

In any event, a court squarely addressing the issue could reasonably

conclude that § 666(a)(2) prohibits bribes, but not gratuities, for two reasons. First, Bonito does not offer the only plausible comparison of the

language of §§ 666 and 201. Instead of deciding that § 666(a)(2) resembles § 201's illegal gratuity provision, § 201(c), a court might conclude

that § 666(a)(2) actually resembles § 201's bribery provision, § 201(b).

Under this view the "corruptly . . . with intent to influence or reward"

language of § 666(a)(2) has the same effect as the "corruptly . . . with

intent to influence" language of § 201(b) and not the same effect as the

"for or because of" language of § 201(c). If this is true, then § 666(a)(2)

prohibits only bribes.

Second, a court interpreting the statutory history of the 1986 amendment to § 666 could reach the conclusion (unstated in, but consistent

with, Crozier) that the 1986 amendment to§ 666 clarified that the statute

prohibits only bribes. As Crozier recognized, Congress intended for

§ 666 (as amended in 1986) to parallel § 215 (as amended the same

year). See Crozier, 987 F.2d at 899; see also H.R. Rep. 99-797, at 30 n.9,

1986 U.S.C.C.A.N. at 6153 n.9 (explaining that, as amended, § 666 "parallels the bank bribery provision (18 U.S.C. § 215)"). As Crozier also

acknowledged, Congress intended its 1986 change to§ 215 to narrow

that statute. Crozier, 987 F.2d at 899; H.R. Rep. No. 99-335, at 3-7, 1986

U.S.C.C.A.N. at 1784-1788. However, Crozier did not discuss how the

1986 amendment to § 215 narrowed that provision. Before the amendment § 215(b) reached any payment "for or in connection with any transaction of business." 18 U.S.C. § 215(b) (Supp. II 1985). As a result of

the amendment the section now reaches only payments made "corruptly

. . . with intent to influence or reward." 18 U.S.C. § 215(a)(1) (1988).

According to the House Report, the intended effect of this amendment

to § 215 was to narrow the statute to cover only payments made or

received "corruptly," that is, "bribes or rewards" instead of inconsequential gifts. See H.R. Rep. 99-335, at 5, 6 nn.24 & 25, 1986 U.S.C.C.A.N.

at 1786, 1787 nn.24 & 25. The Report has an arguable implication for

§ 666 that Crozier did not mention: that Congress changed § 666, by

adding the "corruptly . . . with intent to influence or reward" language,

to clarify that § 666 (like § 215) prohibits only bribes. See also George

D. Brown, Stealth Statute -- Corruption, the Spending Power, and the

Rise of 18 U.S.C. § 666, 73 Notre Dame L. Rev. 247, 308-310 (1998)

(criticizing Crozier and arguing that because § 666 requires "corrupt

intent," the section prohibits only bribes).

 15
nings's: if he gave money to Morris with the requisite corrupt intent,

Jennings violated the statute regardless of Morris's intent in accepting

the money. Of course, Morris's testimony regarding his own intent in

taking the payments might have some relevance to Jennings's intent

in making them. Morris's testimony is not dispositive of Jennings's

intent, however. So long as the other evidence was sufficient to prove

beyond a reasonable doubt that Jennings paid Morris with the corrupt

intent to influence or reward him, the jury could find Jennings guilty

of bribery despite Morris's testimony. We are satisfied that the evidence was more than sufficient to convict Jennings of bribery.

As administrator of the VSFP program at HABC, Morris was in a

position to award no-bid contracts to companies doing housing rehabilitation. Jennings's company, Elias, got on the no-bid list after Jennings and his son, Jennings Jr., met with Morris at a Baltimore

restaurant. Jennings Jr. was a member of the Board of Commissioners

that oversaw HABC activities, and it would be fair to infer that his

father brought him to the meeting in order to influence Morris to put

Elias on the VSFP list. Not only did Morris place Elias on the list

after this meeting, Morris also began awarding contracts to the company.

An uncharged payment of $200 from Jennings to Morris got the

ball rolling. In the context of all that happened in this case, it would

be reasonable for a juror to find that Jennings made the first payment

as well as the succeeding ones with the intent to signal Morris that

more payments were in the cards if more contracts came Elias's way.

A reasonable juror could have found that Jennings intended the three

charged payments to be either arranged-in-advance rewards in return

for Morris's official acts on behalf of Jennings's companies or paidin-advance bribes for Morris's future acts on behalf of the companies,

or both.

_________________________________________________________________

However, because the evidence was sufficient to prove that Jennings

committed bribery, we need not decide whether § 666 prohibits gratuities. We therefore leave the definitive interpretation of § 666's language

and statutory history for another day.

 16
On the same day Jennings made the first charged payment of

$2,500-$3,000 to Morris, Elias deposited an HABC check for over

$75,000. Over the next several days, Morris approved several new

jobs for Elias, sometimes raising the in-house estimates so that Elias

would be paid at the higher rate it proposed.

Jennings made the second charged payment of $2,500 to Morris the

day after Elias deposited a $46,000 check from HABC. Shortly thereafter, Morris approved more new jobs for Elias, again bumping up

some of the in-house estimates.

Jennings made the last charged payment of $1,500 the same day

Morris approved eight new projects for Elias, the same day Elias

deposited another HABC check, and the same day HABC issued a

lead testing contract to EPC, Jennings's other company.

The timing of each charged payment from Jennings to Morris

closely corresponded to a payment from HABC to Elias and to Morris's approval of new jobs for Jennings's companies. Moreover, each

time Jennings made a cash payment to Morris, he thanked Morris for

his help and told Morris that he (Jennings) could not have made it

without him. Finally, Jennings used an underhanded method to generate much of the cash for his payments to Morris: Jennings cashed two

checks written to his subcontractors at a check cashing establishment

whose proprietor forged the endorsements.

On this evidence we believe a reasonable juror could have found

that Jennings's payments to Morris were bribes, that is, gifts made

with the corrupt intent to induce Morris to engage in, or to reward him

for engaging in, official actions on behalf of Jennings's companies.

In traditional terms, Jennings paid Morris with the intent of having a

quid pro quo arrangement with him.

Even if the evidence did not necessarily link each of Jennings's

payments to a specific official act by Morris, a reasonable juror could

still conclude that Jennings paid bribes. Over a fairly short period

Morris approved over $650,000 worth of contracts for Jennings's

companies, and Jennings paid Morris over $7,000 in cash. Again, a

reasonable juror could have concluded that there was a course of conduct involving payments flowing from Jennings to Morris in

 17
exchange for a pattern of official actions favorable to Jennings's companies, and that was sufficient to convict Jennings of bribery. See

Arthur, 544 F.2d at 734. Accordingly, the district court did not err

when it denied Jennings's motion for an acquittal.

III.

Jennings's second argument is that the district court erred (1) by

failing to instruct the jury about the difference between a bribe and

a gratuity and (2) by misdefining for the jury § 666(a)(2)'s "corrupt

intent" element, thereby omitting the requirement of intent to engage

in a quid pro quo. Jennings's trial counsel did not object to the district

court's jury instruction on either of these grounds, so our review is for

plain error. See Fed. R. Crim. P. 52(b); United States v. Olano, 507

U.S. 725, 731-32 (1993). For us "to notice an error not preserved by

a timely objection, [Jennings] must show that an error occurred, that

the error was plain, and that the error affected his substantial rights."

United States v. Hastings, 134 F.3d 235, 239 (4th Cir.), cert. denied,

118 S. Ct. 1852 (1998). Even if Jennings satisfies these requirements,

we will exercise our discretion to correct the error only if failure to

do so would result in a miscarriage of justice. See id.

A.

As we said in part II.B., we have left open the question of whether

§ 666 prohibits gratuities because the evidence was sufficient to convict Jennings of bribery. Because we have reserved the gratuity question, a fair review of the now-challenged jury instruction for plain

error requires us to assume (without deciding) that§ 666 does not

prohibit gratuities. This leads us back to § 201.

When instructing the jury on § 201(b), a trial court must explain

that a payment is made with "corrupt intent" only if it was made or

promised with the intent to corrupt the particular official. Not every

payment made to influence or reward an official is intended to corrupt

him. See United States v. Arthur, 544 F.2d 730, 734, 735 (4th Cir.

1976). One has the intent to corrupt an official only if he makes a

payment or promise with the intent to engage in a fairly specific quid

pro quo with that official. Of course, a court need not resort to Latin

to make this point. It simply may explain that the defendant must

 18
have intended for the official to engage in some specific act (or omission) or course of action (or inaction) in return for the charged payment.

Even if a court does not properly define "corrupt intent," it can adequately convey that concept to the jury by describing the exact quid

pro quo that the defendant is charged with intending to accomplish.

For example, a court may inform the jury that it may find the defendant guilty only if it determines "that (defendant's name) gave (the

charged payment) corruptly, that is, with the intent to induce

(official's name) to commit (the specific official act or omission that

defendant is charged with intending to induce) ." See, e.g., Committee

on Model Criminal Jury Instructions Within the Eighth Circuit,

Manual of Model Jury Instructions for the District Courts of the

Eighth Circuit, § 6.18.201A (1996) (instruction for § 201 (b)(1)).

Such an instruction can satisfactorily convey to the jury the concept

of quid pro quo (even absent a proper definition of"corrupt intent")

if it requires the jury to find that the defendant made or promised a

specific payment in exchange for a specific official act or omission.

Even so, this type of instruction is best used to amplify, rather than

define, the concept of quid pro quo.

Additionally, when there is some evidence to suggest that the

defendant's payment was a gratuity as defined in§ 201(c), the trial

court must at the defendant's request instruct the jury on the lesserincluded offense of "illegal gratuity." See United States v. Head, 641

F.2d 174, 180 (4th Cir. 1981); Arthur, 544 F.2d at 735 (citing United

States v. Brewster, 506 F.2d 62, 83 (D.C. Cir. 1974)); United States

v. Chen, 754 F.2d 817, 825 (9th Cir. 1985). In such cases the court

must set forth the elements of the illegal gratuity offense. See United

States v. Muldoon, 931 F.2d 282, 288 (4th Cir. 1991); see also United

States v. McLamb, 985 F.2d 1284, 1293 (4th Cir. 1993) (failure to

instruct the jury on any essential element of an offense constitutes

plain error). The court also must explain that an illegal gratuity differs

from a bribe in that the gratuity is paid without corrupt intent.

On our assumption that § 666 makes the same bribe/gratuity distinction as § 201, a court instructing a jury on § 666(a)(2) must define

the "corrupt intent" element in the same way as it would if instructing

on § 201(b). Thus (we assume) a court must instruct the jury that it

 19
may convict a defendant for violating § 666(a)(2) only if it finds that

the defendant intended to exchange a payment for some specific official act or course of action. Further, because a court instructing on

§ 201(b) must explain the lesser-included offense of illegal gratuity

whenever there is some evidence supporting a gratuity theory, it follows (under our assumption) that a court instructing on § 666(a)(2)

must explain, if requested, the defense of "mere gratuity" when there

is evidence to support a gratuity theory. See United States v. Hicks,

748 F.2d 854, 857 (4th Cir. 1984) ("[I]t is settled law in this circuit

. . . that, at least upon proper request, a defendant is entitled to an

instruction submitting to the jury any theory of defense for which

there is a foundation in the evidence.").

The district court gave the following instruction to the jury on the

intent required for a § 666(a)(2) violation:

 In order to establish [Jennings's] guilt .. . the government

must prove . . . that [he] gave a thing of value to [Morris]

. . . .

 . . . .

 . . . [and] that [Jennings] did so corruptly, that is, with the

intent to influence or reward [Morris] in connection with

[HABC] business. . . .

 So, in order to find [Jennings] guilty . .. you must find

beyond a reasonable doubt that . . . [Jennings] corruptly

gave to [Morris] a bribe . . ., [and] that . . . [Jennings] had

the intent of influencing or rewarding [Morris] corruptly in

connection with HABC contracts obtained and performed

by Elias . . . .

 If you do find that [Jennings] gave the reward or thing of

value, then the government must prove that [Jennings] did

so with a corrupt intent to influence or reward[Morris]. An

act is done with a corrupt intent if it is performed voluntarily

and intentionally -- that means willfully, not as a mistake

or accident -- and with the purpose, at least in part, of either

 20
accomplishing an unlawful end or result or accomplishing

some otherwise lawful end or result by an unlawful manner

or means.

 In other words, in order to prove [Jennings] guilty, the

government must prove to you . . . that he acted with corrupt

intent, that is, that he gave [Morris] money with the purpose

of influencing or rewarding him with respect to HABC business or transactions.

 The phrase to influence means that a payment was made

before the official action. The phrase to reward means that

a payment was made afterwards. Payments made to influence official action and to reward official action are both

prohibited . . . . Payments made, however, without corrupt

intent are not criminal acts.

 Now, if you find the government has not proved beyond

a reasonable doubt that [Jennings] gave money to [Morris]

with corrupt intent to influence or reward him with respect

to HABC business or transactions, then you must find[Jennings] not guilty.

1.

Jennings argues that the district court erred because it did not

instruct the jury on the difference between a bribe and a gratuity. Jennings did not request such an instruction or object to its omission.

Omitting an explanation of the bribe/gratuity distinction was not

error, much less plain error, in this case. Jennings did not defend the

case on a gratuity theory. Rather, he disclaimed that theory by claiming that he paid Morris nothing at all. And, although Morris testified

that he considered the payments to be gifts, Jennings urged the jury

to reject Morris's testimony. A gratuity instruction therefore would

have been inconsistent with Jennings's defense. In these circumstances, the district court did not err in failing to inject a gratuity

defense into the trial by offering an unrequested instruction on the

subject. Cf. United States v. Matzkin, 14 F.3d 1014, 1018 (4th Cir.

1994). As a result, it was appropriate for the district court to instruct

 21
the jury that it could find Jennings guilty of bribery or nothing (so

long as the bribery instruction was correct).

2.

Jennings next argues that the district court plainly erred by giving

a wrong instruction on the "corrupt intent" element of bribery -- an

instruction that left out the requirement of intent to engage in a quid

pro quo. We agree.

A first glance at the instruction reveals that the court correctly

explained the meaning of the "to influence or reward" language in

§ 666(a)(2). As noted in part II.B., we assume that these words take

their common meaning under § 666: payments made to "influence" an

official are made before the official's act (or omission), while payments made to "reward" an official are made after the act. Thus,

§ 666(a)(2) prohibits all bribes, regardless of whether they were made

before or after the official act.

Yet the court's accurate explanation of the terms"influence" and

"reward" did nothing to ensure that the jury found that Jennings's

payments were, indeed, bribes. This is because the court incorrectly

defined the "corrupt intent" element of bribery, which is the intent to

engage in a relatively specific quid pro quo. A correct description of

this element is essential because the gravamen of a bribery offense is

a payment made to corruptly influence or reward an official act (or

omission). As a result, to explain properly the quid pro quo element

of § 666(a)(2), a correct definition of "corruptly" must modify the "to

influence or reward" language in the court's instruction. Without an

appropriate definition of "corruptly," an instruction mistakenly suggests that § 666 prohibits any payment made with a generalized desire

to influence or reward (such as a goodwill gift), no matter how indefinite or uncertain the payor's hope of future benefit.5 In sum, unless

_________________________________________________________________

5 As we said in part II.A., goodwill gifts are given with no more than

"some generalized hope or expectation of ultimate benefit on the part of

the donor." Arthur, 544 F.2d at 734. Clearly, goodwill gifts are neither

bribes nor gratuities, since they are made neither with the intent to

engage in a "relatively specific quid pro quo" with an official nor "for

 22
the district court defined "corrupt intent" to include the quid pro quo

requirement, it gave an erroneous instruction on an essential element

of bribery.

In defining "corrupt intent" the trial court told the jury that "[a]n

act is done with a corrupt intent if it is performed voluntarily and

intentionally . . . and with the purpose . . . of either accomplishing an

unlawful end or result or accomplishing some otherwise lawful end

or result by an unlawful manner or means."6 This was error. The defi-

_________________________________________________________________

or because of" a specific official act (or omission). See United States v.

Johnson, 621 F.2d 1073, 1076 (10th Cir. 1980) (explaining that § 201's

bribery provision does not cover gifts made with merely a "`generalized

hope or expectation of ultimate benefit on the part of the donor'" (quoting Arthur, 544 F.2d at 734)); United States v. Sun-Diamond Growers of

California, 138 F.3d 961, 967 (D.C. Cir. 1998) (explaining that § 201's

gratuity provision does not cover gifts given to an official with "some

vague hope of inducing warm feelings" or "generalized sympathy"

toward the donor), cert. granted in part, 67 U.S.L.W. 3151 (U.S. Nov. 2,

1998) (No. 98-131) and cert. denied, 67 U.S.L.W. 3261 (U.S. Nov. 2,

1998) (No. 98-374). Thus, regardless of whether§ 666(a)(2) prohibits

gratuities, it does not reach mere goodwill gifts.

6 The district court's definition of "corrupt intent" appears to be an

incomplete version of the definition from the respected treatise, Edward

J. Devitt, et al., 3 Federal Jury Practice and Instructions, § 25.09 (1990)

(pattern instructions for 18 U.S.C. § 201;"Corruptly Defined"). The treatise's definition also was quoted in the legislative history of the 1986

amendment to 18 U.S.C. § 215 (discussed in part II.B.). See H.R. Rep.

No. 99-335, at 5 nn.24 & 25 (1986), reprinted in 1986 U.S.C.C.A.N.

1782, 1787 nn.24 & 25 (citing the 1977 version of the Devitt treatise).

However, the district court's definition was not entirely consistent with

the treatise's definition. The court left out the second sentence: "The

motive to act `corruptly' is ordinarily a hope or expectation of either

financial gain or other benefit to one's self, or some aid or profit to

another." See id.; Devitt, et al., supra, § 25.09. Without this sentence the

definition does not even allude to the concept of quid pro quo. Therefore,

even if § 666 adopts this definition of corrupt intent, the district court's

definition of that term was incomplete.

However, we believe that our court in Arthur set forth a better definition of corrupt intent than the one in the Devitt treatise. As explained in

 23
nition fails to explain that "corrupt intent" is the intent to induce a

specific act. Therefore, the district court's instruction on § 666(a)(2)

left out the quid pro quo requirement. Standing alone, this instruction

was plainly erroneous.

Reading the district court's jury instruction as a whole cannot save

it either. In an attempt to clarify the meaning of"corruptly," the court

_________________________________________________________________

part II.A. above, Arthur defined "corrupt intent" as the intent to engage

in "some more or less specific quid pro quo." Arthur, 544 F.2d at 734.

Also, we question the Devitt treatise's support for its definition of

"corrupt intent." The treatise attributes the definition to United States v.

Strand, 574 F.2d 993, 996 (9th Cir. 1978). See Devitt, et al., supra,

§ 25.09 (Notes). However, the Strand court did not adopt the definition

of "corruptly" that Devitt attributes to it.

In Strand the Ninth Circuit quoted the trial court's definition of "corruptly," which was later adopted by the Devitt treatise. Id. at 995-96. The

appeals court also quoted parts of the trial court's jury instruction on the

elements of the offense of bribery. See id. at 995 (stating that the defendant must have accepted money "in return for being induced to . . .

violat[e] . . . his official duties" (emphasis added)). The Strand courtthen

held that "[t]he trial court's instructions, taken as a whole, correctly and

clearly charged the jury that . . . the requisite corrupt intent consisted of

the defendant's . . . acceptance of money for financial gain, in return for

a violation of his official duty, with the specific intent to violate the law."

Id. (first and fourth emphases added). Here, the Ninth Circuit was alluding to the "financial gain" and "specific intent" language in the trial

court's definition of "corruptly." But the appeals court also was referring

to the trial court's discussion of the "in return for . . . violation of his official duty" element of the offense. See id. Thus, the Ninth Circuit in

Strand did not hold that the trial court's definition of "corruptly" was sufficient in itself to convey to the jury the proper intent element for bribery.

Rather, the appeals court held that the trial court's instructions, "taken as

a whole," adequately conveyed the proper intent requirement to the jury.

Therefore, Strand merely stands for the proposition that a jury instruction

may be sufficient on the whole when it allows the jury to convict only

if it finds that the defendant gave (or received) money "in return for" a

violation of some official duty. In fact, it is possible to read Strand as

adopting the Arthur definition of corrupt intent. Cf. id. at 995 (explaining

that the crucial difference between a bribe and a gratuity under § 201 is

that bribery requires the intent to engage in a"quid pro quo").

 24
attempted to elaborate on that term four times. First, the court told the

jury that Jennings was guilty only if he made the payments "corruptly,

that is, with the intent to influence or reward[Morris] in connection

with the [HABC] business." Second, the court reiterated that the jury

could convict on each count only if it decided that the charged payment was made with "the intent of influencing or rewarding [Morris]

corruptly in connection with HABC contracts." Third, the court

explained that the government had to prove that Jennings gave Morris

money "with the purpose of influencing or rewarding him with

respect to HABC business or transactions." Fourth, the court summed

up by advising the jury that it had to acquit Jennings if the government did not prove that Jennings gave money to Morris "with corrupt

intent to influence or reward him with respect to HABC business or

transactions."

If any of the court's four explanations of "corrupt intent" required

the jury to find a relatively specific quid pro quo, the jury instruction

would have been saved (despite the court's failure to include in its

core definition of "corruptly" the quid pro quo element of bribery).

This is because requiring the jury to find that Jennings intended to

trade specific payments for specific favors from Morris would have

notified the jury of the quid pro quo element of the§ 666(a)(2)

offense. But none of the court's elaborations on the meaning of "corruptly" stated that Jennings must have given money to Morris in

exchange for some specific official act or course of action (for example, approving Elias's proposals for nearly the amount requested).

Rather, the court repeatedly charged that it was sufficient if Jennings

paid Morris to influence him (Morris) "in connection with" or "in reference to" HABC business. These allusions to HABC business were

too general because they did not describe any official acts that Jennings intended to induce with his payments to Morris. These explanations could have described a situation in which Jennings paid Morris

with a "[v]ague expectation[ ] of some future benefit," Allen, 10 F.3d

at 111. As a result, the court's attempt to restate the meaning of corrupt intent did not necessarily require the jury to find that Jennings

had the intent to engage in a quid pro quo. Therefore, the jury instruction on § 666(a)(2) was plainly erroneous. 7

_________________________________________________________________

7 Again, this conclusion is premised on our assumption that § 666 only

outlaws bribes. We do not decide whether the instruction was proper if

 25
B.

Because the district court's plainly erroneous instruction misdefined bribery's "corrupt intent" element by omitting the basic quid pro

quo requirement, we will assume that the instruction affected Jennings's substantial rights. Yet we will not exercise our discretion to

correct the plain error if it did not "result in a miscarriage of justice,

such as when . . . the error seriously affects the fairness, integrity or

public reputation of [the] judicial proceedings." Hastings, 134 F.3d at

244 (internal quotation marks and alteration omitted). "`Central to this

inquiry is a determination of whether, based on the record in its

entirety, the proceedings against the accused resulted in a fair and

reliable determination of guilt.'" Id. (quoting United States v. Cedelle,

89 F.3d 181, 186 (4th Cir. 1996)).

We conclude that there was a fair and reliable determination of

Jennings's guilt. Jennings did not claim at trial that he paid gratuities

to Morris. Jennings took the stand and testified that he did not pay

Morris a dime, and Jennings's lawyer pressed this point at length in

his closing. The jury completely rejected Jennings's testimony. We

are convinced that a quid pro quo instruction would not have changed

the jury's assessment of Jennings's story or its determination of his

guilt.

Although Jennings now argues that at most he paid gratuities to

Morris, he can only point to two snippets of Morris's testimony to

support his argument. First, Morris testified that he never did any special favors for Jennings's companies. Yet Morris admitted to the dubious practice of personally delivering Elias's checks for VSFP work

to Jennings's office, something Morris did not do for any other contractor. Second, Morris testified that he considered the payments from

Jennings to be gifts. This seems to be a self-serving assumption on

Morris's part. Regardless, it is Jennings's intent, not Morris's, that is

dispositive.

_________________________________________________________________

§ 666 prohibits gratuities. However, if § 666 does cover gratuities, we

can say with certainty that § 666 must use the word "corruptly" to mean

something totally different than does § 201 (which uses the term to distinguish between bribes and gratuities).

 26
Here the evidence relevant to Jennings's intent"points inexorably

to the conclusion," Hastings, 134 F.3d at 244, that he meant to bribe

Morris, that is, he (Jennings) intended to engage in a quid pro quo

with Morris. Jennings was not just tipping Morris, without corrupt

intent, for official action that Jennings expected to occur anyway.

Morris had the power to decide whether (and for what dollar amount)

rehabilitation and lead testing contracts flowed to Jennings's companies. Morris repeatedly awarded such contracts while taking large

cash payments from Jennings. Each time Jennings paid Morris, Jennings thanked Morris for his help and told him (in so many words)

that his help was essential. This pattern of behavior confirmed the

existence of a quid pro quo: there was a course of conduct involving

payments from Jennings to Morris "in exchange for a pattern of official actions favorable to [Jennings's companies]." Arthur, 544 F.2d at

734. It is simply implausible that Jennings continued to pay Morris

with no intent to induce him to continue awarding contracts at favorable prices. Finally, when Jennings learned that one of his subcontractors had registered a serious complaint about Jennings to Morris,

Jennings boasted of his influence with Morris, telling the subcontractor that his complaints were futile. This evidence helps to confirm that

Jennings's intent all along was to induce Morris to misuse his position, a classic sign of bribery. Jennings' conviction was not a miscarriage of justice, and we will not exercise our discretion to set it aside.8

The conviction is

AFFIRMED.

_________________________________________________________________

8 Jennings also argues that the district court abused its discretion by

admitting evidence that Jennings Jr. was on HABC's governing board

and evidence about Jennings Jr.'s involvement with his father's company, Elias. We have considered this point and find no merit in it.

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