The Honorable Owen M. Panner, United States District Judge for the District 1 of Oregon, sitting by designation.



## United States Court of Appeals FOR THE EIGHTH CIRCUIT

______________ No. 97-4321WM

______________ * United States of America, *
* Appellee, *
* On Appeal from the United
v. * States District Court
* for the Western District
* of Missouri. Bob F. Griffin, *
* Appellant. *
*

___________ Submitted: June 9, 1998 Filed: August 17, 1998

___________ Before RICHARD S. ARNOLD and MORRIS SHEPPARD ARNOLD, Circuit Judges, and PANNER, District Judge. 1

___________ RICHARD S. ARNOLD, Circuit Judge. On October 31, 1996, a grand jury returned a twenty-six-count indictmentThe Ho norable Dean Whipple, United States District Judge for the Wester n 2 District of Missouri.

-2- against Bob F. Griffin and three other defendants, in which Griffin was charged with six bribery violations under 18 U.S.C. § 666(a)(1)(B) (1994), two mail fraud violations under 18 U.S.C. § 1341 (1994), and one violation of the Racketeer Influenced an d Corrupt Organizations Act (RICO), 18 U.S.C. § 1962 (1 994). At the time, Griffin was Speaker of the Missouri House of Representatives. After se veral weeks of trial in May and June 1997, a jury acquitted Griffin of four of the counts in th e indictment, including the RICO cou nt, but was unable to reach a decision on the other five counts agains t him.

The go vernment was prepared to try Griffin again, and Cathryn Simmons an d Michael Fisher, two defendants convicted in the first trial, ag reed to testify against him. On the day the second trial was scheduled to begin, Griffin pleaded guiltyto counts two and si x of the indictment -- a bribery violation under 18 U.S.C. § 666(a)(1)(B), and a mail fra ud violation under 18 U.S.C. § 1341. These two counts were related to a sche mein which Griffin recommended to members of the construction industry that they hire Cath ryn Simmons to lobby on their behalf for a Motor Fuel Tax Bill bein g considered by the Missouri House of Representatives in January 1992. The indictment allegedthat in return for this recommendation, Simmons gave Griffin two checks for $5,000 each. The District Court sentenced Griffin to 48 months in prison, a $7,500 2 fine, and a $100 special penalty assessment. His sentenc e was based on a total offense level of 22 and a criminal history category of II, which carries a range of punishment of 46 to 57 months. The District Court calculated Griffin’s base offense level usin g U.S.S.G. § 2C1.1 (1997), which governs the giving, soliciting, or receiving of bribes.

Griff in advances two arguments on appeal, both of which involve sentencin g issues. He first argues that t he District Court erred in applying U.S.S.G. § 2C1.1, and instead should have applied § 2C1.2 , which governs the giving and receiving of illegalIf the distri ct judge had applied U.S.S.G. § 2C1.2, Griffin’s base offense level 3 would have been 7, and the resulting Guidelines range would have been 33 to 4 1 months. Because the Court applied § 2C1.1, Griffin’s base offense level was 10, and his Guidelines range was 46 to 57 months.
-3- gratui ties. Griffin claims that he accepted gratuities from Simmons, and not bribes ,

3 because he received the illegal payments from Simmons after the acts for which he was paid -- recommending her as a lobbyist to construction interests -- had already bee n performed.

The statutory index of the Sentencing Guidelines, which specifies whic h Guidelines apply to various criminal statutes, lists both U.S.S.G. § 2C1.1 (bribes) and § 2C1.2 (gratuities) as applicable to vio lations of 18 U.S.C. § 666(a)(1)(B), the statute Gri ffin has admitted violating. See U.S.S.G. App. A, at 421. In this case, we agre e with the District Court that § 2C1.1 was the applicable Guideline. The distinctio n betw een a bribe and an illegal gratuity is the corrupt intent of the person giving th e bribe to receive a quid pro quo , s omething that the recipient would not otherwise have done. See United States v. Mariano , 983 F.2d 1150, 1159 (1st Cir. 1993); Unite d States v. Muld oon , 931 F.2d 282, 287 (4th Cir. 1991). We agree with the Distric t Court that the evidence established the necessary quid pro quo , or payment of money by Simmons in exchange for Griffin ’s official actions on her behalf. In his capacity as Speaker of the House, Griffin met with members of the construction industry an d recommended that they employ Simmons as their lobbyist for the 1992 Motor Fuel Tax Bil l. Trial Tr. at 189-91, 624-25. Griffin now admits that he made thi s recommendation with the understanding that Simmons would pay him for his efforts. Griffin Br . at 15; App. at 66. According to the Sentencing Guidelines’ backgroun d notes, § 2C1 .1 applies “to a person who offers or gives a bribe for a corrupt purpose, such a s inducing a public official to participate in a fraud or to influence his officia l actions, or to a public official who sol icits or accepts such a bribe.” U.S.S.G. § 2C1.1 application notes (background). The evidence of an agreement to exchange Simmons’s-4-

money for Griffin’s actions is sufficient to affirm the District Court’s application o f U.S.S.G. § 2 C1.1. Griffin was not merely paid after the fact for something he ha d already done, and would have done anyway.
We reject Griffin’s argument tha t his illegal conduct involved a gratuity and not

a bribe because he was not paid money before he made the recommendation tha t Simmons be hired as a lobbyis t. The core difference between a bribe and a gratuity is not the time the illegal payment is made, but the quid pro quo , or the agreement t o exchang e cash for official action. To support his argument of a temporal distinctio n between bribery a

nd gratuity, Griffin relies on United States v. Crozier , 987 F.2d 893 (2d Cir .), cert. denied , 510 U.S. 880 (1993). We do not read that case as requirin g that, to sustain a conviction for bribery, the govern ment must prove that the bribe-taker be paid before he performs the illegal service. In Crozier , the Court noted that 1 8 U.S.C. § 666(c) (1988), an earlier version of the statute Griffin has admitted violating, applied to anyone who “offers, g ives, or agrees to give an agent of . . . a State or local government agency . . . anything of value for or because of the recipient’s conduct . . ..” The Co urt concluded that the “for or because of” language in the older version of the statute could support “both past acts supporting a gratuity theory and future act s necessary f

or a bribery theory.” Crozier , 987 F.2d at 899. And because the illega l conduct in Crozier

involved an improper loan made to a government official, bu t without an intent to influence the official’s present or future conduct, the Court noted that “the facts lean[ed] more toward a gratuity theory.” Id. at 899. In Griffin’s case, the facts are clear: Griffin and Simmons agr eed that he would be paid by Simmons for using hi s influence as Speaker of the House to steer business her way. Nowhere i n Crozier did the Cour

t suggest that, in a case involving an agreement to exchange cash for official action, the illegal conduct amounts to a gratui ty rather than a bribe when the wrongdo er

receives the money after he performs the action, rather than before. Th e Court merely held that the older version of 18 U.S.C. § 666 and the specific facts o f Crozier supported the defendant’s conviction under a gratuity theory.-5-

Griffin next argues that the District Court erred in not granting him a two-level reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. This Cour t wi llnot reverse a district court’s decision not to apply U.S.S.G. § 3E1.1 unless th e ruling “is so clearly erroneous as to be without foundat ion.” United States v. Ngo , 132 F.3d 1231, 1233 (8th Cir. 1997). We commend Griffin for avoiding a second trial by pleading guilty to two charges, for voluntarily surrendering his license to practice law, and for publ icly apologizing to his constituents. See App. at 65-66. However, w e cannot ignore the fact that Griffin did not admit his wrongdoing until after his first trial, and that at the f

irst trial, he strongly denied accepting any payments from Simmons in exchange for referring her to the construct ion interests. Trial Tr. at 2188. Given these facts, we cannot say that the denial of a reduction for acceptance of responsibility was clearly erroneous.

Affirmed.

It is so ordered.
A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.