CA Penal Code Section 92, 93 Bribery Offering Receiving Authorities

Bribery
People v. Vollmann, 73 Cal.App.2d 769, 167 P.2d 545 (Cal.App. 1 Dist., Apr 02, 1946)
Appeal from Superior Court, Alameda County; Edward J. Tyrrell, Judge.
Adolph L. Vollmann was convicted of agreeing to accept a bribe with intent to influence his official action , and
from the judgment of conviction and from an order denying a new trial, he appeals.
Affirmed.
[2] Bribery 63
10
63 Bribery
63k8 Evidence
63k10 k. Admissibility. Most Cited Cases
In prosecution against farm production council director's assistant for agreeing to accept a bribe from housing
contractors, with intent to influence assistant's official action, evidence of negotiations antecedent to conversation
forming basis of prosecution, which tended to establish relationship between assistant and contractors, was
admissible at least as introductory to other transactions to give jury intelligent understanding of the whole evidence .
Pen.Code, 68; Gen.Laws, Act 134 (repealed 1947), and Act 136.
[3] Criminal Law 110
368.35
110 Criminal Law

110XVII Evidence
110XVII(F) Other Misconduct by Accused
110XVII(F)2 Admissibility in Prosecutions for Particular Offenses in General
110k368.35 k. Obstructing justice, bribery, and perjury. Most Cited Cases
(Formerly 110k369.2(3.1), 110k369.2(3), 110k369(2))
In prosecution against farm production counsel director's assistant for agreeing to accept a bribe with intent to
influence his official action with regard to housing contractors, **evidence of conversations between assistant and
contractor regarding payment and offer of sums of money by third parties to assistant were properly admitted under
rule that where proffered evidence directly throws light upon issue being tried, evidence is admissible although it
proves another offense as well. West's Ann.Pen.Code, 68; Gen.Laws Acts 134, 136.
692
110 Criminal Law

110XX Trial
110XX(D) Procedures for Excluding Evidence
110k690 Right to Object
110k692 k. Estoppel or waiver. Most Cited Cases
Criminal Law 110
899
110 Criminal Law

110XX Trial
110XX(L) Waiver and Correction of Irregularities and Errors
110k899 k. Rulings as to admissibility of evidence. Most Cited Cases
contractors with intent to influence assistant's official action, alleged error in admission of evidence of amount of
contractors' profit was waived by accused who referred to such profit on voir dire examination of a prospective juror
and in cross-examining one of contractors. West's Ann.Pen.Code 68; St.1933, 2d Ex.Sess., p. 3397 as amended
(repealed 1947) and St.1921, p. 1221, as amended (repealed. See West's Ann.Agric.Code, 911 et seq.).
[6] Bribery 63
10
63 Bribery
63k8 Evidence
In bribery prosecution it is permissible to show various steps taken by accused in committing the crime ,
including preliminary negotiations with other parties and his acts subsequent to offense charged which tend to
confirm such charge. Pen.Code, 68.
[7] Bribery 63
10
63 Bribery
63k8 Evidence
contractors with intent to influence assistant's official action, admission of evidence of assistant's acts and conduct
after he left state's employ, which tended to prove that assistant was carrying out his part of bargain was not error.
Pen.Code, 68; Gen.Laws, Act 134 (repealed 1947), and Act 136.
[8] Bribery 63
11
63 Bribery
63k8 Evidence
63k11 k. Weight and sufficiency. Most Cited Cases
contractors with intent to influence assistant's official action, **evidence was not insufficient to show that accused
had agreed that his official conduct should be thereafter influenced, on theory that accused's words that he should
have something for contractors' having had this contract overcame all inferences that bribe was sought for purpose
of influencing future conduct. Pen.Code, 68; Gen.Laws, Act 134 (repealed 1947), and Act 136.
[9] Bribery 63
1(1)
63 Bribery
63k1 Nature and Elements of Offenses
63k1(1) k. In general. Most Cited Cases
The offer or solicitation of a bribe need not be stated in express language as such, it being sufficient that words
used carry import of bribe and were evidently intended to bear that meaning. Pen.Code, 68.
[10] Bribery 63
10
63 Bribery
63k8 Evidence
In bribery prosecution, it is permissible to show various steps taken by accused in committing the crime,
including preliminary negotiations. Pen.Code, 68.
[11] Bribery 63
11
63 Bribery
63k8 Evidence
contractors with intent to influence assistant's official action, **evidence warranted jury's conclusion that assistant
had entered into an agreement as to his future conduct. Pen.Code, 68; Gen.Laws, Act 134 (repealed 1947), and Act
136.
[12] Bribery 63
1(1)
63 Bribery
A meeting of the minds is not required to establish agreement to take a bribe. Pen.Code, 68.
683(1)
110 Criminal Law

110XX Trial
110XX(C) Reception of Evidence
110k683 Scope of Evidence in Rebuttal
In prosecution for agreeing to accept a bribe from contractors with intent to influence accused's official action,
wherein prosecution had proved conversion of $5,000 check into cashier's check and its use to procure ten $500 bills
and accused admitted that three of the $500 bills had come to his hands from contractors but explained that such
bills were for a different transaction, admitting testimony of contractor in rebuttal that contractor handed accused ten
$500 bills was not an abuse of discretion. West's Ann.Pen.Code, 68.
[16] Bribery 63
11
63 Bribery
63k8 Evidence
**In prosecution for agreeing to accept a bribe, the prosecution need not prove payment, and payment is
corroborative evidence only. Pen.Code, 68.
[19] Bribery 63
1(1)
63 Bribery
**To establish agreement to accept bribe with intent to influence official conduct, it is only necessary to
establish the agreement on part of accused officer, and state of mind of parties from whom bribe was solicited is
immaterial. Pen.Code, 68.
1186.4(9)
110 Criminal Law

110XXIV Review
110XXIV(U) Determination and Disposition of Cause
110k1185 Reversal
110k1186.4 Technical, Formal or Trivial Defects or Errors
110k1186.4(9) k. Failure or refusal to instruct. Most Cited Cases
(Formerly 110k1186(4))
**In bribery prosecution based on circumstantial evidence, failure to instruct that to justify conviction facts must not
only be consistent with theory of guilt, but must be inconsistent with any other rational conclusion did not warrant
reversal where jury was told that if two reasonable inferences, one of guilt and one of innocence, might be drawn
from circumstances accused could not be convicted. West's Ann.Pen.Code, 68; West's Ann.Const. art. 6, 4
n southern California, with respect to the submission of bids by them, but without fixing any date for their
reception. No bids were received from either firm by June 23, when the award to Nelsen and Ewing was made. A bid
from one of these firms, which came in on July 1, was declared by appellant to be a little too high, and a revised bid
was submitted on July 3. The other (San Francisco) firm submitted a bid on June 30 but appellant notified that
bidder a day or so later that the contract had been already awarded. The other firm was not notified of the rejection
of its bid until early in August.
Soon after June 23 appellant informed Nelsen and Ewing that additional bids were required, and on June 28
Ewing delivered five additional bids: one of $19,500 per unit signed by James P. Morton, (a carpenter working for
Nelsen) who had nothing to do with its preparation; one of $23,607.05 per unit, submitted by Nelsen and Ewing,
based on plans prepared by the University of California College of Agriculture; and three submitted by Hayward
Mill & Lumber Co. based on plans prepared by the University of California for a four-man cabin, two-man bunk
house, and six-man bunk house respectively. These five bids were presented **549 to Fred W. Links of *775 the
department of finance when appellant, accompanied by an attorney of the council, called on him to present the
requisition for ten labor camp units. Links testified that appellant told him that they had gone out and obtained these
bids from various concerns, and that the main purpose in securing them was to see how quickly they could get the
housing. He was informed that the council by resolution had approved the purchase of the Nelsen and Ewing
product. He thereupon obtained from the director of finance authorization to approve the requisition.
A purchase order for the first ten units at a total cost of $169,299.50 was issued by the bureau of purchases on
July 2, based of course on the award which had been made on June 23.
On June 30, appellant accompanied Nelsen and Ewing to the office of the War Production Board in San
Francisco where Ewing worked out priorities. Later that day appellant and Nelsen appeared at the office of an
insurance broker in San Francisco where arrangements were made for a $25,000 contractor's bond. Appellant called
for this bond the following day.
About July 1 appellant informed Ewing that the council planned to award a contract for a second group of ten
units and inquired whether his firm cared to bid on it, and in the course of a conversation about this time, according
to Ewing, appellant told him that the two other firms already referred to were going to bid; that some one from the
southern California firm had offered appellant $25,000 for the contract, but that he had turned him down, and, as far
as he was concerned, we [Nelsen and Ewing] could have the contract.
**Ewing also testified that in late July or early August appellant told him that during a trip south, from which he
had just returned, one of the people connected with a firm of contractors which had a contract with the state to
furnish food to these farm labor camps, had given him $1,700 or $1,750 (which had relieved a financial
embarrassment of which he had theretofore complained) and that he had asked this person how he thought
individuals like himself (appellant) lived. Ewing testified further that on several later occasions when appellant
asked him if he had spoken to Nelsen, and Ewing had inquired About what? appellant had explained by making
reference to the catering firm and its gesture toward him.
*776 Nelsen and Ewing were awarded the second contract. The minutes of the council's meetings on July 6 and
7 disclose that the director discussed the advisability of contracting for ten more additional Ewing-Way camps and
that he was authorized to enter into a contract to purchase them. Appellant wrote to the state purchasing agent
enclosing bids for the second group of ten units, advised him that the council had decided to purchase them from
Nelsen and Ewing, and a second purchase order, identical with the first was issued by the bureau of purchases on
July 13.
Nelsen and Ewing commenced work at the Hayward plant about a week after the first purchase order was
received, and the first deliveries were made in late July and early August. During the construction work appellant
visited the Hayward plant frequently, at times as often as every other day, checking on materials and making
suggestions for the expediting of the work.
On August 1 Nelsen and Ewing submitted their first invoice for $16,929.95 for one unit, worded to conform
with the purchase order. Actually numerous items specified in the purchase order had not been furnished, and Ewing
testified that these omissions had been authorized by appellant. The council's accountant, who processed the
invoices for payment, testified that he informed appellant that appellant would have to verify that everything had
been furnished. Appellant wrote on the invoice approved for payment and signed his name. As each subsequent
invoice was received, appellant was asked to approve it before it was sent to Sacramento for payment. He so
approved all invoices between August 1 and September 24. He knew at the time he approved them that the units
represented were not complete and that in the future a final adjustment would have to be made.
Shortly after the first invoice was submitted appellant advised Ewing that he would write a letter to the
department of finance to expedite its payment. On August 10 the council's accountant wrote to the bureau of
purchases requesting speedy payment of the Nelsen and Ewing invoice, **550 and he testified that appellant
repeatedly asked him to speed up their payments.
At appellant's instance, said accountant on August 25 prepared a letter for the signature of the director, advising
*777 the state purchasing agent that it had been found necessary to eliminate certain dormitories and to substitute
therefor certain mess halls with 100 tables; authorization was requested for this change plus a charge for delivery of
all 20 camps free on board our trucks' for $6,520, which figure represented the difference between the cost of the
mess halls plus the 100 tables, and the cost of the dormitories. The original purchase orders had provided that the
units were sold F. O. B.Delivered. The accountant testified, however, that appellant told him that the entire
purpose of the change was to reimburse Nelsen and Ewing for the cost of loading the units. The request embodied in
this letter was approved, and a change order was issued by the bureau of purchases on September 2.
On September 13 appellant visited the Hayward plant and advised Ewing that he had been instructed by the
council to cancel the Nelsen and Ewing contracts. Ewing replied that they had expended considerable time, money,
and material; that the contracts were almost completed as far as material was concerned, and asked him to join him
in an inspection of the yard to see for himself. Ewing testified that during this tour appellant asked him whether he
had talked to Nelsen. Ewing said, What about? Well, he said, you know, to which Ewing replied, No, I don't.
What do you mean? **Whereupon appellant said, Well, it's time you boys got smart. I feel that I should have
something for your having had this contract. Ewing responded that he would have to consult his partner before
giving an answer. Appellant then suggested, according to Ewing, that one way to handle it would be to turn over to
him the barn that Nelsen and Ewing were proposing to build at Bay Meadows race track. Several days later at
Hayward appellant inquired if Ewing had spoken to Nelsen and was told that he had, and that they had agreed to
take care of him. During this conversation appellant told Ewing that he had made a favorable recommendation
respecting the threatened cancellation, and showed him an inter-office memorandum to that effect which he had
prepared for the director on September 14. The contracts were not cancelled.
In the latter part of October Nelsen and Ewing commenced the preparation of a final statement. Ewing testified
that he consulted appellant about the final invoices at that *778 time, and was told to prepare them and that appellant
would submit them. The original statement which Nelsen and Ewing submitted was not accepted. Appellant told
Ewing it was not correct and that the council's attorney had himself prepared a statement as the basis for arriving at a
settlement. Appellant told Ewing to work the original over, using the attorney's statement as a basis. This revised
statement included an item of Extras to contracts' totaling $11,855.68. Nelsen and Ewing then submitted a
statement dated October 20 which also was not acceptable, and appellant advised them to break the loading charge
down into a dollar value per unit and add it to the item of extras, and returned it with the suggestion that the next
statement should so specify the loading charge. A final approved statement had not yet been submitted when
appellant terminated his employment with the state on October 31. Appellant visited Ewing in Hayward on
November 6 and advised him to speed up the preparation of the final statement.
On November 8 Ewing called at the council's office in Berkeley. He was then unaware that appellant had
terminated his employment. He was advised in appellant's presence that another statement would have to be
prepared which would be acceptable to Sacramento. Such other statement was prepared that day at the council's
office, during which time the appellant was present. It was almost a five-hour session. At the same time the council's
attorney, with the assistance of appellant, dictated a letter to the purchasing agent explaining and clarifying the
substitutions, omissions and changes that had been made in the construction of the units, explaining that it had been
discovered that complete units for 200 men were not necessary in some camps, whereas in other instances additional
equipment was needed to round out a camp to conform to its requirements. Appellant signed this letter as Assistant
to the Director eight days after the termination of his state employment.
Some time in August in a transaction having nothing at all to do with these state contracts appellant had
interested the California**551 Jockey Club in the possible use of Ewing's prefabricated product for some new race
track stables. On October 9 the club authorized appellant to arrange for the erection of such prefabricated stables at
Bay Meadows at a cost not to exceed $5000. Five days later appellant in writing *779 authorized Nelsen and Ewing
to proceed with the construction of the stables. On November 20 Nelsen and Ewing met appellant at Bay Meadows
race track and advised him that they had decided to turn over to him the stables under construction, although it then
appeared that the cost would be $7,691.64, considerably in excess of the $5,000 originally stipulated . They
accompanied him to the office where appellant had a stenographer type out an order for Nelsen and Ewing's
signature, directing the Jockey Club to pay him the amount due for the stables. On November 22 appellant presented
an invoice for these stables to the accountant at Bay Meadows and received the Club's check for $7,691.64 payable
to appellant. The following day Ewing called on appellant at Bay Meadows and informed him that Nelsen and
Ewing's auditor had objected that the race track transaction had not been put through the Nelsen and Ewing books.
Appellant had not yet cashed the check, and he accompanied Ewing to Hayward with the check and the order
authorizing payment to him in his possession. The auditor examined the order and took them sharply to task with the
comment that they knew better than to put through a deal like that; that as appellant was an inspector for the state,
the transaction had the appearance of a bribe. New invoices were then made out to the Jockey Club, and appellant
took them to Bay Meadows, returned the original check and received in exchange a check payable to Nelsen and
Ewing for $7,691.64, to whom he delivered it.
On November 24 according to the state's evidence Nelsen and Ewing again met appellant at Bay Meadows and
Nelsen joined the appellant in his automobile and gave him ten $500 bills. The record shows that the day before the
$5,000 was paid a $5,000 check had been drawn to cash by Nelsen and Ewing, on their own bank in Hayward .
With this they procured a cashier's check from their bank for the same amount. This cashier's check was taken by
Nelsen to a San Francisco bank, and in exchange for it he procured the ten $500 bills **which Nelsen testified he
gave to appellant at the race track. The books of Nelsen and Ewing show that $3,000 of this was charged to the
personal account of Nelsen and $2,000 to Ewing (which was in accordance with their respective interests, i. e. 60
and 40 per cent). The following day was Thanksgiving, and on the day after that, the bank *780 records show that
appellant visited his safe deposit box. Some months later the authorities opened the box under a search warrant, and
found therein three $500 bills. Appellant admitted that he had received said $1,500 from Nelsen and Ewing but
claimed it had been turned over to him by them in connection with a Puente race track transaction. Ewing testified
that in early December, 1943, he asked appellant how he was getting along with the $500 bills and that appellant
replied, all right and if he had any trouble he could deposit the money in some Texas bank.
The first point made by appellant is that it was prejudicial error to admit evidence of defendant's actions [prior
to September 14] relating to preliminary negotiations, award of the contract, procurement of additional bids,
procurement of a purchase order, the bond application, approval of invoices, payment of invoices, orders for changes
in construction, payment of loading charges and issuance of charge orders. Appellant's counsel object that this
evidence implanted in the minds of the jurors inferences of wrongful intent and conduct apart from a possible bribe;
namely, that the appellant dealt in bad faith with the two other contracting firms which submitted bids; that he
rendered improper assistance to Nelsen and Ewing during the preliminary negotiations; that he was not in good faith
in presenting the Nelsen and Ewing bid to the council; that he conspired to deceive the state finance department by
representing that the contract was awarded by competitive bidding; that he in bad faith concealed and evaded the
council's instructions to prepare plans and specifications; that he rendered improper assistance to Nelsen and Ewing
in securing their bond; that he corruptly increased the profits to Nelsen and Ewing by directing that the state take
delivery at the Hayward plant, transferring the burden of loading to the state, and introducing changes in the
construction plans; that he in bad faith approved invoices for payment of funds not properly due, and sought to
expedite payment of Nelsen and Ewing's invoices. Counsel point out that he was **552 charged with asking for a
bribe on September 14 upon an agreement to influence his official action in specified particulars in the future , and
they pose the question whether he is to stand trial for every action taken by him prior thereto. Is there, they ask, to
be put in issue and the defendant compelled to defend *781 possible mistakes or errors in judgment and the
reasonableness of his actions prior to the time he is charged with asking for the bribe upon an agreement to do
something in the future? The appellant relies mainly upon People v. Glass, 158 Cal. 650, 112 P. 281, which case he
claims forcefully and compellingly answers this question in the negative.
The appellant was on trial for agreeing to accept a bribe. It would seem that all evidence of the relations
between the alleged offeror and offeree from which the inference could be drawn that the appellant suggested or
solicited it, or went out of his way to favor the party from whom he hoped or expected ultimately to receive it,
would be relevant, and the prosecution should be permitted to bring it out. It is true that the prosecution could have
opened its case by proving the it's time you boys got smart conversation in the lumber yard on September 14 and
what followed it, as already narrated, but surely the jury in that event would not have had the same grasp or
understanding of the case as they got by the evidence (in more or less chronological order) of the preliminary
matters leading up to that conversation. With respect to what evidence is admissible, beyond the very minimum
needed to prove the exact offense on trial, Chief Justice Beatty had this to say in People v. Cook, 148 Cal. 334, 340,
83 P. 43, 46: The prosecution in a criminal case is not obliged to rest upon evidence which merely establishes the
guilt of the defendant prima facieupon evidence, that is to say, which is merely sufficient in law to sustain a
verdict of guilty. The guilt of the defendant must be proved beyond a reasonable doubt in order to secure such a
verdict, and the district attorney not only may, but ought to, introduce all proper evidence at his command tending to
establish the guilt of the defendant, in order to overcome any doubts or scruples of the juros.
[1][2] The dealings and negotiations antecedent to the September 14 conversation had to do with the actual
performance of the Nelsen and Ewing contracts, which performance was under the immediate supervision of
appellant. From that evidence the jury might have drawn the inference that appellant was improperly favoring
Nelsen and Ewing and thereby seeking to ingratiate himself with them with the intention of laying the foundation or
paving the way for a later solicitation. On the other hand they might have inferred that what *782 he did was
dictated purely by a wholesome desire to be accommodating. If the circumstances were susceptible of an inference
of wrong-doing connected with appellant's official dealings with Nelsen and Ewing, the prosecution was certainly
entitled to get such evidence before the jury for the reasons so well stated in People v. Cook, supra, without being
restricted to barely proving the conversation of September 14 and what followed it, which would do no more than
get by a motion for a directed verdict. The conduct of a defendant prior to the commission of the crime charged
against him, which has a direct tendency to connect him with it and to identify him as a guilty participant therein, is
both relevant and material. 8 Cal.Jur. 37, sec. 154. In People v. Sturman, 56 Cal.App.2d 173, 182, 132 P.2d 504,
509, the court said: Evidence of the behavior of the accused is competent if it tends to prove intent * * *
preparation, or any other acts inconsistent with innocence. See, also, People v. Arnold, 199 Cal. 471, 492, 250 P.
168. Such evidence tended to establish the relationship between the appellant and Nelsen and Ewing (see People v.
Kelly, 69 Cal.App. 558, 566, 231 P. 767) and was admissible at least as introductory and preliminary to other
transactions, to give the jury an intelligent understanding of the whole of the evidence, and as bearing on the
relations of the parties. Facts whose existence is a necessary preliminary to the relevancy of evidence are properly
received, and facts which tend to explain or unfold a situation are admissible as establishing the relevancy of
evidence. * * * The evidence, in the circumstances here disclosed, was introductory and preliminary, and was
necessary to an intelligent consideration of what followed. Bedell v. United States, 8 Cir., 78 F.2d 358, 364.
[3] The conversations between appellant and Ewing, wherein appellant is said to have told him of the $1,700 or
$1,750 payment and of the $25,000 offer, are likewise attacked by appellant. It may be conceded**553 that the
testimony respecting the payment was proof of another offense, but even so, it was admissible under the settled rule
that Where the proffered evidence directly throws light upon the facts of the issue being tried, it is admissible,
although it proves another offense as well. People v. Ellis, 188 Cal. 682, 689, 206 P. 753, 756, quoting People v.
Smith, 9 Cal.App. 644, 647, 99 P. 1111. The law will not thwart justice by excluding that evidence, simply because
it involves the commission of another *783 crime'.' Id., 188 Cal. 690, 206 P. 756, quoting People v. Sanders, 114
Cal. 216, 230, 46 P. 153. This court had occasion to pass upon a similar contention in the recent case of People v.
Duncan, Cal.App., 164 P.2d 313, where we cited People v. Kynette, 15 Cal.2d 731, 746, 104 P.2d 794; 20 Am.Jur.
293 et seq. and 22 C.J.S., Criminal Law, 683, p. 1089 et seq. See, also, 8 Cal.Jur. p. 60, sec. 168; People v.
Albertson, 23 Cal.2d 550, 576, 145 P.2d 7; People v. Palassou, 14 Cal.App. 123, 127, 111 P. 109; People v. Cook,
supra, 148 Cal. 340, 83 P. 43.
That appellant's statement that he had actually received $1,700 or $1,750 from another contractor engaged on
the same general project throws light upon the facts of the issue being tried is not open to question, for, if believed,
it could mean but one thing, namely, that appellant was implanting in Ewing's mind rather broadly the suggestion
that an offer from Nelsen and Ewing would be acceptable to him. It could be interpreted as outright solicitation, or,
as said in Bedell v. United States, supra, it reflected * * * his susceptibility to corruption.
Unlike the evidence just discussed, that in People v. Glass, supra, which was held to be erroneously admitted
was in no way related to or connected with the case on trial, as it had to do with the efforts (not amounting to a
criminal offense) of the corporation of which Glass was an officer, to keep a competing company from obtaining a
franchise in Oakland. The offense for which Glass was on trial was alleged bribery committed four years later in an
attempt to keep the same competitor out of San Francisco. This distinction is pointed out in People v. Ellis, supra,
188 Cal. at page 691, 206 P. 753. We are satisfied that neither the Glass case nor any other authority cited by
appellant, indicates that the evidence just discussed was erroneously admitted, but are convinced, on the other hand,
that the prosecution was entitled to have all of itas telling the whole storylaid before the jury.
At p. 784,
Appellant also claims that the admission of evidence of his acts and conduct after he left the state's employ on
October 31, 1943, was prejudicial error. Such acts and conduct have been already fully stated. If from such evidence
the inference could be drawn that appellant aided Nelsen and Ewing in getting something to which they were not
entitled, the prosecution was entitled to have it in evidence as a circumstance tending to prove that appellant,
although no longer in authority, was carrying out his part of the bargain of September 14. Counsel for appellant say
that appellant's actions after he terminated his employment could not form the basis of any prosecution under
Section 68 of the penal *785 code where it must not only be shown that the defendant is an officer or employee of
the State but that he asks for a bribe in connection with a matter then pending before him or which might be brought
before him in his official capacity. That is, of course, true. But that does not mean that a person who, while
occupying office, had agreed to take a bribe could not be shown to have taken steps after leaving office in
performance of the corrupt agreement, or to help out the persons to whom he still looked for payment.
[6] It is permissible to show the various steps taken by accused in committing the crime, including preliminary
negotiations with the other parties and his acts subsequent to the offense charged , which tend to confirm that
charge. 11 C.J.S., Bribery, 14, p. 871. (Emphasis added.) The authorities cited by respondent holding that
evidence of subsequent acts and conduct is admissible are in point and show this to be the prevailing rule. People v.
Furlong, 140 App.Div. 179, 125 N.Y.S. 164, 168; Stovall v. State, 104 Tex.Cr.R. 210, 283 S.W. 850, 852; State v.
Gardiner, 88 Minn. 130, 92 N.W. 529, 535; People v. O'Neill, 109 N.Y. 251, 16 N.E. 68, 71; Commonwealth v.
Barker, 311 Mass. 82, 40 N.E.2d 265. On the other hand, the authorities cited by appellant on this point, while
holding that certain evidence had been erroneously received in bribery cases for one reason or another, do not
support the claim he now makes. None of them holds inadmissible evidence of the acts and conduct of a defendant
after he has left the position or office which he occupied at the time of the corrupt agreement.
[7] Our views and conclusions on this point are the same as those already expressed with respect to acts and
conduct prior to September 14, namely, that there was no error in admitting this evidence.
The appellant contends that the verdict is contrary to the evidence, and the evidence is insufficient to sustain
the verdict.
In language which paraphrased the indictment the court instructed the jury that it must find that the defendant
intended or agreed that his official conduct should be thereafter unlawfully influenced upon at least one of the
following matters:
1. In approving, recommending, obtaining or procuring * * * changes, alterations or revisions in the contracts
and purchase orders * * *; or
*786 2. In recommending * * * that said contracts and purchase orders be not cancelled; or
3. In approving for payment, invoices or claims submitted * * * under said contracts and purchase orders or
such changes, alterations and revisions thereto.
[8][9][10][11] Appellant contends that the record is entirely lacking in evidence which would justify the jury in
concluding that he had agreed that his official conduct should be thereafter influenced in any of these particulars . On
the contrary, he argues that Ewing's testimony as to the words used, namely, * * * I feel that I should have
something for your having had this contract, was direct evidence conveying the idea of a gratuity or reward for past
acts or serivices, and that it overcame all inferences based on circumstantial evidence that a bribe was sought for the
purpose of influencing his conduct in the future. The respondent answers that the appellant cannot single out a part
of one conversationthat of September 14or one set of words, but that everything appellant said and did on,
before and after that date was before the jury, and presumably was weighed and considered in reaching the verdict.
People v. Elliott, 103 Cal.App. 329, 331, 284 P. 733. We agree with this view. The offer or solicitation of a bribe
need not be stated in express language as such; it is sufficient that the words used carried the import of a bribe and
were evidently intended to bear that **555 meaning. * * * 11 C.J.S., Bribery, 2, p. 843. Further, It is permissible
to show the various steps taken by accused in committing the crime, including preliminary negotiations * * *. 11
C.J.S., supra, Bribery, 14, p. 871. It must be remembered that the conversation of September 14 was not the first
time the subject had been broached. A full month before that, when appellant had returned from the south, he had,
according to Ewing, told Ewing in so many words, that a person connected with the catering contractors had given
him $1700 or $1750. This itself might well have been viewed by the jury as a solicitation by the process of
suggestion. Moreover Ewing testified that on several later occasions when appellant had inquired if he had spoken to
Nelsen, and Ewing professed ignorance of what was meant, appellant answered with a cryptic reference to the
$1,700 or $1,750 gesture. Then, too, there was the conversation testified to by Ewing where appellant told him in
so many words that he had declined a $25,000 offer with the remark that as far as he was concerned, we [Nelsen
and Ewing] *787 could have the contract. This, too, might have been taken by the jury as a broader hint or
suggestion, for it indicated that appellant's refusal was coupled with a favoritism toward Nelsen and Ewing . The
people's case did not depend on any single or isolated conversation, and these two earlier conversations, and the
others where appellant inquired if Ewing had spoken to Nelsen, were just as much direct evidence as was the
conversation of September 14.
Moreover, there was more to the September 14 conversation than the reference to the past award of the contract.
Appellant, according to Ewing, then told him in substance that his mission to the Hayward plant that day was to let
them know that he had been instructed by the California Farm Production Council to cancel out our contract. This
was part and parcel of the same conversation and he chose that particular time and occasion to associate and couple
the two subjects together. **Appellant was the man in authority who had direct and almost complete supervision of
the Nelsen and Ewing contracts and their performance. Nelsen and Ewing were, so to speak, in his hands, and the
jury might well have drawn the inference that regardless of the phrasing of the suggestion, a bribe was then and
there solicited not for past performance but for appellant's direct and immediate influence in defeating the threatened
and impending cancellation.
Moreover, it must be remembered in considering the question whether future influence was in the minds of the
parties that in the conversation several days after September 14 when Ewing told appellant that they had agreed to
take care of him, appellant told Ewing of the favorable recommendation he had made respecting the cancellation,
supporting his statement by documentary proof. **From this the jury could have inferred that although in the
September 14 conversation appellant spoke of getting something for your having had this contract his real meaning
and intent was getting something for putting a halt to the cancellation.
In addition to what has been said there was sufficient evidence for the jury to conclude that appellant in fact
approved, recommended, obtained and procured changes, alterations, or revisions in the contracts and purchase
orders; that he recommended that the contracts and purchase orders be not cancelled; that he approved for payment
invoices or claims submitted by Nelsen and Ewing. **Those facts (if found) of *788 themselves were indicative that
the agreement in question had been made. Coupled with the conversations above related, or independently of them,
they were sufficient to warrant the jury in concluding appellant had entered into an agreement as to his future
conduct.
[12] It is the appellant's position that though the prosecution's evidence, if believed, may establish that Nelsen
and Ewing agreed to pay him a bribe, there is no evidence that the agreement on their part was based on an
understanding that appellant's action on matters then pending or thereafter brought before him in his official capacity
would be unlawfully influenced thereby, as charged in the indictment. He points out that his recommendation against
cancellation of the contract and purchase orders was made prior to notification from Nelsen and Ewing that his
request of September 14 was agreeable to them; nor is there any evidence, he asserts, that from the time of that
conversation Nelsen and Ewing ever requested him to act in a particular manner or to aid them in any way that could
possibly be construed as unlawful, corrupt or even improper. In this connection it must be remembered that no
meeting of the minds' is required to establish **556 an agreement to take a bribe . People v. Powell, 50 Cal.App.
436, 442, 195 P. 456; People v. Kerns, 9 Cal.App.2d 72, 75, 48 P.2d 750; People v. Brigham, Cal.App., 163 P.2d
891. **It is not necessary that there be an understanding, in the sense of an agreement, with the person unlawfully
approached, but merely an understanding on the part of the bribe seeker himself that his official action shall be
influenced. People v. Kerns, supra, 9 Cal.App.2d page 75, 48 P.2d 751.
At p. 788,
[13] Appellant, while frankly recognizing that ordinarily it is within the trial court's discretion to allow
testimony in rebuttal which might have been given earlier, claims that the court in allowing Nelsen to testify, as a
rebuttal witness, that he actually handed appellant ten $500 bills, abused its discretion. Counsel argue that Nelsen
was placed on the stand by the prosecution to end the case in its entirety upon a high note of victory for its cause
and that, under the circumstances, such procedure was decidedly unfair. As part of the prosecution's case proof had
been made of the conversion of the $5000 check into a cashier's check and its use to procure at a San Francisco bank
the ten $500 bills; and testimony had been given by Ewing of his later conversation with appellant*789 respecting
his getting rid of the $500 bills. From all this evidence the jury could have concluded that the $5,000 had actually
changed hands, without Nelsen's testimony as to the details of its manual delivery. Appellant admitted that three of
the $500 bills had come to his hands from Nelsen and Ewing but explained that $1,500 was for the Puente
transaction. It was then, and then only, that the prosecution put Nelsen on the stand in rebuttal to prove that he had
personally handed the ten $500 bills to appellant.
In view of the state of the record prior to the rebuttal testimonyincluding all the evidence respecting the
$7,691.64 check issued to appellant in the Bay Meadows transaction and later cancelledwe are satisfied that there
was no abuse of discretion. It is not necessary to cite authorities holding that the court had such discretion, for, as
above indicated, the appellant concedes the general rule in that regard.
It is next claimed by appellant that the court erred in limiting the cross-examination of Nelsen. As we have just
seen, he testified in rebuttal that he handed appellant ten $500 bills at Bay Meadows race track. On crossexamination he was asked, Isn't it a fact, Mr. Nelsen, that you have told Mr. Hoyt that you never gave Mr. Vollmann
a bribe?, to which an objection was interposed without any statement of the ground therefor, and was sustained
without comment by the court. The question was repeated several times in varying forms, (for instance, never gave
five cents to Mr. Vollmann as a bribe; never given any money) and none of the district attorney's objections (each
of which was sustained ) specified any grounds beyond incompetent, irrelevant and immaterial. Counsel for
appellant did not indicate (and, as will presently appear, did not have to) whether the questions were asked with a
view to later calling witnesses to contradict Nelsen if he answered in the negative. In the course of argument on the
admissibility of this evidence counsel for appellant said to the court, * * * in the examination of Mr. Vollmann,
questions were asked him as to whether or not he made certain contradictory statements to the district attorney. I
have asked this witness if he had made contradictory statements to the same district attorney, in the same month; and
I * * * ask your Honor to review again the ruling that I may not show that, in the month of June, 1944, this *790
witness,who says, now, that he gave money at that time to Mr. Vollmann,told the district attorney he had not.
Mr. Emerson: Judge, that wasn't the foundation that was laid for those questions at the time I objected to it. If
they are offered as impeachment and the proper foundation is laid,I have no objection to them.
[14] That the questions were not legally objectionable in the form in which they were cast (without following
the impeachment formula indicated by sec. 2052, Code Civ. Proc.) is clear from the discussion of this subject found
in People v. Jones, 160 Cal. 358, at page 365, 117 P. 176, in People v. Ho Kim You, 24 Cal.App. 451 at 458, 459,
141 P. 950 and in 10 So.Cal. Law Rev. 145. In People v. Jones, supra, 160 Cal. 365, 117 P. 179, it was held to be an
unwarranted curtailment of legitimate cross-examination to exclude such questions, * * * upon the ground that they
are necessarily impeaching questions, and the proper foundation for them has not been laid, citing **557People v.
Hart, 153 Cal. 261, 94 P. 1042. In People v. Campos, 10 Cal.App.2d 310, 317, 52 P.2d 251, 254, the court said, It is
always proper, for the purpose of discrediting a witness by his own admissions, to interrogate him, on crossexamination, as to prior inconsistent statements without calling attention to time, place, circumstances and persons
present. 27 Cal.Jur. p. 159, 133; People v. Jones, 160 Cal. 358, 117 P. 176; People v. Ho Kim You, 24 Cal.App.
451, 141 P. 950; People v. Williams, 43 Cal.App. 60, 184 P. 498.
While we are satisfied that it was error to sustain these objections, the question remains whether such error was
prejudicial.
[15] If the witness had been permitted to answer, and had admitted that he had told the district attorney that he
had never given appellant a cent, it would not have been affirmative or competent evidence of the fact that he had
not given appellant a bribe of $5000 or any other sum. If he had denied such statement and some other witness had
provided that he had heard it made the result would be the same. It has been held in numerous cases' said the court
in Lopez v. Wisler, 58 Cal.App.2d 455, 462, 136 P.2d 816, 819 (citing them) that when a witness is impeached by
proof of prior inconsistent statements the effect is merely to discredit him as a witness, and that the former
statements made by him are incompetent for any other purpose.
While such an admission by Nelsen or proof by some other *791 (impeaching) witness would have discredited
Nelsen's entire testimony, it must not be forgotten that he had been already discredited and impeached by his
admission that he had entered a plea of guilty to his indictment for a violation of 67 1/2 , agreeing to give a bribe to
appellant,a felony. (sec. 2051, Code of Civ. Proc.)
[16] Before Nelsen had been put on the stand the following evidence had gone before the jury from the
testimony of other witnesses and from documentary evidence as well, all touching upon the question of payment:
that, at the race track appellant had caused to be drawn up a writing, which Nelsen and Ewing had signed, directing
the Jockey Club to pay appellant the $7,691.64; that a check for that amount had been drawn by the Jockey Club to
appellant's order and given to him; that Nelsen and Ewing's accountant had taken them to task for handling the
transaction in this way, making it appear that appellant, a state inspector, was being bribed; that the check had been
recalled, and a new one issued to the order of Nelsen and Ewing and the transaction put through their books in the
regular way; that then the $5,000 check had been drawn to cash, (charged to Nelsen and Ewing in their respective
shares) converted into a cashier's check and that check given for the ten $500 bills; that appellant had visited his safe
deposit box two days later (the intervening day being a holiday); that appellant had been asked how he was getting
on with the large denomination bills and made the reply that if he had any trouble he could deposit them in a Texas
bank, and that three $500 bills had been found in his safe deposit box. All this evidence, we repeat, went in
independently of Nelsen's testimony or his credibility and it was of course sufficient by itself to warrant the
inference that $5,000 in money had passed. It was not, however, necessary for the prosecution to prove payment. An
agreement was all that had to be proved, and **the only bearing payment had on that issue was that from actual
payment an antecedent agreement to pay would be a logical inference. It was corroborative evidence only.
There was an abundance of evidence in the record, apart from Nelsen's testimony, to establish the understanding
and agreement which, after all, was the issue in this case.
[17] In People v. Williams, 43 Cal.App. 60, 184 P. 498, 500, the trial court had curtailed the cross-examination,
as in the *792 case at bar, and while on appeal it was held to be error it was not prejudicial error. We are disposed to
say as was there said: A survey of the whole record of the case, however, which discloses ample testimony to
warrant the conviction of the defendant, compels the conclusion that the error complained of has not resulted in a
miscarriage of justice. The case seems to be one for the application of section 4 1/2 of article 6 of the Constitution of
the state.
[18] The prosecution was permitted to introduce evidence that on November 24, 1943, Nelsen and Ewing's own
bank issued a cashier's check to Nelsen in the amount of $5,000, and that on the same day Nelsen cashed that check
at a San Francisco bank, receiving bills of large denominations. Appellant objects that neither of these transactions
was in his presence and the money received was not traced into his possession. **558 He relies on People v. Bissert,
71 App.Div. 118, 75 N.Y.S. 630, 637. The appellant therein had been convicted of accepting a bribe of $550. The
court in holding it was error to permit evidence that several days prior to the transaction the other party withdrew
$450 from the bank said: It is not claimed that the defendant induced her to draw this money from the bank, or that
any of it was traced into his possession. * * * Had the money drawn from the bank been traced into the defendant's
possession, or had there been established some fact from which that inference could be properly drawn, then it might
be considered by the jury; * * *. (Emphasis added.)
Here sufficient facts were established from which the inference could be reasonably drawn that the money in
question found its way into the appellant's possession. Ewing testified that after Nelsen's visit to the bank in San
Francisco they proceeded to Bay Meadows, where they met appellant; Nelsen testified that he then and there gave
appellant ten $500 bills; a search of appellant's safe deposit box disclosed three $500 bills. The facts here are in
many respects similar to those in People v. Graves, 137 Cal.App. 1, 29 P.2d 807, 812, 30 P.2d 508, where Graves
was convicted of accepting a bribe of $80,000 on the understanding that as a member of the board of supervisors he
would vote in favor of the acceptance by the board of a compromise of a claim for certain construction work.
Evidence was admitted that on a date subsequent to the approval of the compromise a man later identified as *793
Graves purchased with currency a cashier's check for $40,000, at a San Francisco bank and a cashier's check for
$17,000 at another bank in San Francisco. It was also established that on the day these two checks were purchased, a
firm interested in the compromise withdrew from its account in still another bank in San Francisco $80,000 in
currency. Testimony in relation to the withdrawal of this sum was objected to on the ground that it was irrelevant
and not in any way connected with appellant. In rejection this argument, the court said: This fact would be very
important when joined with the fact that immediately following the payment on the compromise, appellant went to
the city wherein the contractors maintained their headquarters and there became possessed of a large sum of money
in currency, and acting under an assumed name disposed of it as hereinbefore shown. Notwithstanding the argument
of counsel that contractors were used to handling large sums of money, the present commercial practice of
transferring credit by check from bank to bank in the discharge of obligations seems to mark the withdrawal of such
a large sum of currency as an unusual circumstance. We think the evidence was properly admitted as a circumstance
in the unfolding of the case.
[19][20] In the course of his closing argument the assistant district attorney commented upon the fact that Mr.
Faulkner, in all of those questions, very carefully avoided asking Mr. Nelsen the one question * * * which the state
could not ask; * * * Did you, through Mr. Ewing, have an agreement and understanding and offer money or a barn
to the defendant?' The court denied appellant's request that these remarks be stricken from the record and that the
jury be admonished to disregard them, with the comment that if the question had been asked by the defense, I
would have allowed Mr. Nelsen to answer it. As previously noted, the evidence presented to the jury was clearly
sufficient to establish that the appellant requested a bribe on the understanding and agreement that his official
conduct would be influenced thereby. People v. Brigham, Cal.App., 163 P.2d 891, and other cases already cited,
establish that to support the conviction **it is only necessary to establish the agreement and understanding on the
part of the accused officer, and that the state of mind of the parties from whom the bribe was *794 solicited is
immaterial. Any inference that the jury might have drawn from the argument that Nelsen and Ewing for their part
entered into an agreement would but add additional force to the point already well established that there was an
agreement on the part of the appellant.
Any error which might have resulted from the remarks of the assistant district attorney and the comment of the
court was cured by the following instructions: The jury has no right to speculate as to the views of the judge as to
any fact or any inference he may have because of anything he may have said or done during the trial, or because of
any ruling he has made in permitting or excluding any evidence offered by either side. * * * You are hereby further
instructed that the opening statement of the district attorney and statements and arguments of counsel, * * * are not
in themselves evidence in this case; **559 and that any statements, made by counsel either during the trial or
argument which are not supported by the evidence or which are inconsistent with my instructions as to the law are to
be disregarded by you * * *. In People v. Matthew, 68 Cal.App. 95, 109, 228 P. 417, 423, the court said: upon the
final submission of the case the court instructed the jurors to the effect that they were the exclusive judges of the
evidence and of the credibility of the witnesses, that it was their function to determine all questions of fact, that the
court had nothing to do with the facts, and that if it had said anything during the trial which might seem to indicate
that it had an opinion upon any of the facts, such expressions should be entirely disregarded by them. This was
sufficient to remove all apprehension that the remarks of the court, would have any prejudicial effect upon the minds
of the jurors. See, also, People v. Siderius, 29 Cal.App.2d 361, 371, 84 P.2d 545.
[21] In an instruction on circumstantial evidence, the court said: If two reasonable inferences, one of guilt and
one of innocence, may be drawn from such chain of circumstances, or if any necessary link in such chain is not
proven to the exclusion of a reasonable doubt, then the defendant cannot be convicted , but all that is required to
convict is this: If the testimony in the case is sufficient to convince the jury beyond a reasonable doubt and to a
moral certainty that the [defendant] did commit the crime charged, then it is the duty of the jury to convict the
defendant of such crime, although the fact may be surrounded in a degree by some possible or *795 fanciful doubt,
surmise or conjecture not arising from a consideration of the evidence. **If a reasonable explanation or construction
compatible with the innocence of a defendant may be drawn from the evidence or if two reasonable inferences, one
of guilt or one of innocence, can be found from the same facts or circumstances then the jury must acquit.
Claiming that this instruction was improper, appellant relies upon the recent case of People v. Bender, Cal., 163
P.2d 8, 16. The evidence to support the conviction of first degree murder in that case was entirely circumstantial.
The court instructed the jury as follows: If the evidence in this case is susceptible of two constructions or
interpretations, each of which appears to you to be reasonable, and one which points to the guilt of the defendant,
and the other to his innocence, it is your duty, under the law, to adopt that interpretation which will admit of the
defendant's innocence, and reject that which points to his guilt. The similarity between that instruction and the one
given in the instant case is apparent. The Supreme Court agreed with the appellant there that in every case where
circumstantial evidence is received, it should be declared to the jury in unequivocal language that, to justify a
conviction, the facts or circumstances must not only be entirely consistent with the theory of guilt but must be
inconsistent with any other rational conclusion. Page 15 of 163 P.2d, quoting 8 Cal.Jur. 371, sec. 405. The court
indicated its approval of the statement in People v. Hatchett, 63 Cal.App.2d 144, 155, 146 P.2d 469, 474, that this
requirement is not met by an instruction to the jury that the guilt of the defendant must be established beyond a
reasonable doubt, or that as between two opposing reasonable inferences the one which is consistent with innocence
must be preferred to the one tending to show guilt. Nevertheless, the court concluded that the failure to instruct the
jury in the language above quoted was not necessarily ground for reversal, in view of the constitutional provision
that No judgment shall be set aside, or new trial granted, in any case on the ground of misdirection of the jury * * *
unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the
error complained has resulted in a miscarriage of justice. (Art. VI, sec. 4 1/2 .) The court then proceeded to consider
the instruction given: This instruction is eminently proper as far as it goes. To it should have been added a direct
statement of the precise principle under discussion. * * * Since the *796 quoted instruction was given, the failure to
give the further instruction is not, upon the facts of this record, ground for reversal. The court's language is equally
applicable to the instant case. See, also, People v. Graves, 137 Cal.App. 1, 21, 29 P.2d 807, 30 P.2d 508.
The judgment and order appealed from are and each of them is affirmed.
U.S. v. Kemp, 500 F.3d 257 (3rd Cir.(Pa.),Aug 27, 2007)
Background: In a prosecution arising out of alleged corruption in Philadelphia city government, defendants were
convicted, by a jury in the United States District Court for the Eastern District of Pennsylvania, Michael M.
Baylson, J., on multiple counts, including conspiracy to commit honest services fraud. They appealed.
Holdings: The Court of Appeals, Cowen, Circuit Judge, held that:
(1) evidence that city treasurer solicited and accepted payment from a business in exchange for taking official action
was sufficient to support his conviction for honest services fraud under a bribery theory;
(2) district court did not misstate the law when instructing jury on the bribery theory of honest services fraud;
(3) evidence that bank officers made loans to city treasurer in exchange for actions which included treasurer's
rigging of a bidding procedure was sufficient to support convictions for honest services fraud under a bribery theory;
(4) variance between proof at trial and indictment charging bank officers with participation in larger hub and
spoke conspiracy did not prejudiced their substantial rights;
(5) evidence that one defendant was interested in fostering ties with a politically active individual in New York was
properly admitted;
(6) notes received by district court provided substantial evidence of jury misconduct, justifying court's individual
questioning of jurors regarding the allegations; and
(7) district court acted within its discretion by dismissing juror for cause during deliberations.
Affirmed.
1030(1)
110 Criminal Law

110XXIV Review
110XXIV(E) Presentation and Reservation in Lower Court of Grounds of Review
110XXIV(E)1 In General
110k1030 Necessity of Objections in General
Court of Appeals reviews for plain error arguments which were not raised to the District Court.
1030(1)
110 Criminal Law

110XXIV Review
110XXIV(E) Presentation and Reservation in Lower Court of Grounds of Review
110XXIV(E)1 In General
110k1030 Necessity of Objections in General
A showing of plain error requires (1) an error, (2) that is plain, and (3) that affected substantial rights.
[5] Postal Service 306
35(2)
306 Postal Service

306III Offenses Against Postal Laws
306k35 Use of Mails to Defraud
306k35(2) k. Nature and elements of offense in general. Most Cited Cases
To prove mail fraud, government must establish (1) defendant's knowing and willful participation in a scheme
or artifice to defraud, (2) with specific intent to defraud, and (3) use of the mails in furtherance of the scheme. 18
U.S.C.A. 1346.
35(9)
306 Postal Service


306k35(9) k. Injury from fraud. Most Cited Cases
Honest services fraud occurs where a public official (1) is paid for a particular decision or action, or (2) fails to
disclose a conflict of interest resulting in personal gain. 18 U.S.C.A. 1346.
35(9)
306 Postal Service

306k35(9) k. Injury from fraud. Most Cited Cases
Evidence that city treasurer solicited and accepted payment from a business in exchange for taking official
action was sufficient to support his conviction for honest services mail fraud under a bribery theory; treasurer, who
received money from company that worked to locate owners of unredeemed city bonds and attempt to help them
cash the bonds, provided company with a list of holders of outstanding bonds and a form letter, and his office
contacted banks to facilitate the ultimate repayment. 18 U.S.C.A. 1346.
[10] Telecommunications 372
1017
372 Telecommunications
372III Telephones
372III(I) Offenses and Prosecutions
372k1015 Prosecutions
372k1017 k. Indictment and information. Most Cited Cases
Indictment was sufficient to charge defendants, bank officers, with honest services wire fraud under a bribery
theory; wire fraud counts of the indictment plainly alleged that defendants engaged in a scheme to defraud city of
the right to the city treasurer's honest services, and indictment incorporated specific factual allegations that
defendants extended benefits to treasurer, in the form of otherwise unavailable loans, in exchange for favorable
decisions in official actions. 18 U.S.C.A. 1346.
[12] Bribery 63
1(1)
63 Bribery
Bribery requires a specific intent to give or receive something of value in exchange for an official act. 18
U.S.C.A. 201.
1021
372III Telephones
372k1021 k. Instructions. Most Cited Cases
District Court did not misstate the law when instructing jury on the bribery theory of honest services wire fraud;
Court repeatedly emphasized the quid pro quo element, explained that it was not necessary to show that any specific
benefit was given in exchange for any specific official act, and explained that specific intent to engage in a quid pro
quo exchange was required. 18 U.S.C.A. 1346.
[15] Bribery 63
1(1)
63 Bribery
Key to whether a gift constitutes a bribe is whether the parties intended for the benefit to be made in exchange
for some official action; government need not prove that each gift was provided with the intent to prompt a specific
official act.
1014(10)
372III Telephones
372k1011 Offenses
372k1014 Wire Fraud
372k1014(10) k. Honest services fraud. Most Cited Cases
Evidence that bank officers made loans to city treasurer, as well as to his church and relatives, that were not
advanced in the usual course of business, in exchange for actions which included treasurer's rigging of a bidding
procedure, was sufficient to support convictions for honest services wire fraud under a bribery theory; officers
approved an unsecured loan to a relative of treasurer without seeing an application or even speaking to the borrower,
and treasurer's mortgage loans were approved before treasurer filed an application and despite fact that bank's
computer program and underwriter rejected them. 18 U.S.C.A. 1346.
[18] Bribery 63
1(1)
63 Bribery
Providing a loan to a public official, or his friends or family, that would have otherwise been unavailable to that
official or available at a higher interest rate may constitute a bribe.
1014(10)
372III Telephones
372k1011 Offenses
372k1014 Wire Fraud
372k1014(10) k. Honest services fraud. Most Cited Cases
Evidence that city treasurer rigged a bidding procedure to favor bank was sufficient , in prosecution for honest
services wire fraud under a bribery theory, for jury to find that bank officers received a benefit in exchange for their
provision of loans to treasurer; treasurer advised bank officers not to submit their bid first, so that he could tell them
about the other bids, and thereafter he gave them specific instructions on how they could tweak their bid to
guarantee that it would win. 18 U.S.C.A. 1346.
1018(4)
372III Telephones
372k1018 Evidence
372k1018(4) k. Weight and sufficiency. Most Cited Cases
Evidence was sufficient, in prosecution for wire fraud based upon honest services fraud under a bribery theory,
to show that bank officers intended to exchange favorable loans made to city treasurer for his provision of favorable
treatment, where one officer, in a recorded telephone call, agreed to waive an appraisal fee for a loan to treasurer's
church, after which treasurer, when discussing another matter, told the officer you get special treatment, and
another phone call showed that the officers expected to get such special treatment. 18 U.S.C.A. 1346.
[22] Conspiracy 91
24(2)
91 Conspiracy
91II Criminal Responsibility
91II(A) Offenses
91k23 Nature and Elements of Criminal Conspiracy in General
91k24 Combination or Agreement
91k24(2) k. Single or multiple conspiracies. Most Cited Cases
In order to determine whether a group of individuals engaged in a single conspiracy or multiple conspiracies,
Court considers: (1) whether there was a common goal among the conspirators, (2) whether the agreement
contemplated bringing to pass a continuous result that will not continue without the continuous cooperation of the
conspirators, and (3) the extent to which the participants overlap in the various dealings.
[23] Conspiracy 91
43(12)
91 Conspiracy
91II(B) Prosecution
91k43 Indictment or Information
91k43(12) k. Issues, proof, and variance. Most Cited Cases
Variance between indictment and government's case at trial occurred when bank officers were charged with
participating in a single conspiracy to commit honest services fraud, but jury was presented with evidence that
proved the existence of multiple conspiracies; there was no evidence that bank officers knew or should have known
about the activities of other alleged conspirators, and those activities were neither interdependent nor mutually
supportive of the bank officers' activities. 18 U.S.C.A. 371, 1346.
1167(1)
110 Criminal Law

110XXIV Review
110XXIV(Q) Harmless and Reversible Error
110k1167 Rulings as to Indictment or Pleas
110k1167(1) k. Indictment or information in general. Most Cited Cases
Bank officers, charged with, inter alia, conspiracy to commit honest services fraud by bribing city treasurer, did
not establish that variance between proof at trial and indictment charging them with participation in larger hub and
spoke conspiracy prejudiced their substantial rights; evidence in telephone calls between two other conspirators
was relevant to the bank officers' involvement in their conspiracy, government minimized the risk of evidence
spillover by segmenting its proofs, and the number of actual conspiracies and involved individuals was small. 18
U.S.C.A. 371, 1346.
[25] Conspiracy 91
47(5)
91 Conspiracy
91II(B) Prosecution
91k44 Evidence
91k47 Weight and Sufficiency
91k47(3) Particular Conspiracies
91k47(5) k. Mail and wire fraud. Most Cited Cases

Evidence that defendant intended to aid and abet the corruption of a city treasurer was sufficient to support
defendant's conviction for aiding and abetting wire fraud in context of a conspiracy to commit honest services fraud;
defendant, who had no reason to provide money to treasurer, relayed money to treasurer from attorney. 18 U.S.C.A.
371, 1346.
59(5)
110 Criminal Law

110VII Parties to Offenses
110k59 Principals, Aiders, Abettors, and Accomplices in General
110k59(5) k. Aiding, abetting, or other participation in offense. Most Cited Cases
In order to convict a defendant of aiding and abetting, government must prove that defendant knew of the
commission of the substantive offense and acted with the intent to facilitate it.
552(1)
110 Criminal Law

110XVII Evidence
110XVII(V) Weight and Sufficiency
110k552 Circumstantial Evidence
Government may prove guilt via circumstantial evidence.
[28] Perjury 297
33(8)
297 Perjury
297II Prosecution
297k30 Evidence
297k33 Weight and Sufficiency in General
297k33(8) k. Falsity of oath or assertion. Most Cited Cases
Evidence that defendant lied about why he gave a $5,000 check to Philadelphia city treasurer was sufficient to
support conviction for perjury before a grand jury; defendant, who lived in Detroit and barely knew the treasurer,
told grand jury that the check was a wedding present from another person, but treasurer had been married for 20
months by time check was written, defendant's additional testimony that treasurer was in Detroit for a bachelor party
at time check was written was false, since treasurer was not in Detroit at that time, and defendant's testimony that
check was never cashed was also false. 18 U.S.C.A. 1623.
[29] Perjury 297
33(8)
297 Perjury
297II Prosecution
297k30 Evidence
Evidence that defendant lied about why he gave a $5,000 check to city treasurer's co-conspirator was sufficient
to support conviction for perjury before a grand jury; defendant testified that the check was intended to be conveyed
to a coalition of African-American newspaper, but defendant, after the check bounced twice, wired the same amount
directly to treasurer's bank account. 18 U.S.C.A. 1623.
[30] Perjury 297
33(8)
297 Perjury
297II Prosecution
297k30 Evidence
Evidence that defendant lied when he told grand jury that he did not specifically ask that city treasurer attend
defendant's meeting with a businessman was sufficient to support conviction for perjury before a grand jury;
defendant was recorded telling treasurer's co-conspirator, in a telephone call, to bring the treasurer to the meeting. 18
U.S.C.A. 1623.
369.2(3.1)
110 Criminal Law

110XVII Evidence
110XVII(F) Other Offenses
110k369 Other Offenses as Evidence of Offense Charged in General
110k369.2 Evidence Relevant to Offense, Also Relating to Other Offenses in General
110k369.2(3) Particular Offenses, Prosecutions for
110k369.2(3.1) k. In general. Most Cited Cases
Evidence that defendant lied, when he testified before the grand jury, about his great wealth was properly
admitted in prosecution for, inter alia, conspiracy to commit honest services fraud; evidence demonstrated
defendant's consciousness of his guilt of the underlying charges, and its probative value was not substantially
outweighed by any unfair prejudicial effect. 18 U.S.C.A. 371, 1346; Fed.Rules Evid.Rules 403, 404(b), 28
U.S.C.A.
422(1)
110 Criminal Law

110XVII Evidence
110XVII(O) Acts and Declarations of Conspirators and Codefendants
110k422 Grounds of Admissibility in General
Criminal Law 110
427(5)
110 Criminal Law

110XVII Evidence
110k427 Preliminary Evidence as to Conspiracy or Common Purpose
110k427(5) k. Weight and sufficiency. Most Cited Cases
In order to admit a statement as a co-conspirator statement, a district court must find, by a preponderance of the
evidence, that **(1) a conspiracy existed, **(2) declarant and the party against whom the statement is offered were
members of the conspiracy, **(3) the statement was made in the course of the conspiracy, and **(4) the statement
was made in furtherance of the conspiracy. Fed.Rules Evid.Rule 801(d)(2)(E), 28 U.S.C.A.
OPINION
COWEN, Circuit Judge.
After a wide-ranging investigation into corruption in Philadelphia city government, the federal government
obtained convictions against **Corey Kemp, the former treasurer of Philadelphia; **Glenn G. Holck and **Stephen
M. Umbrell, former executives of Commerce Bank; **La-Van Hawkins, a businessman from Detroit; and **Janice
Renee Knight, the nominal owner of a printing company named RPC Unlimited. The appellants challenge their
judgments of conviction on a variety of fronts. For the reasons discussed below, we will affirm.
I.
A. The Charges
On November 2, 2004,FN1 a grand jury in the Eastern District of Pennsylvania returned a 63-count indictment
against Kemp, Holck, Umbrell, Hawkins, Knight, **Ronald White, a Philadelphia-based lawyer with close ties to
city government,FN2 and four others whose cases proceeded separately . The centerpiece of the indictment charged
Kemp, White, Holck, Umbrell, Knight, and Hawkins with conspiracy to commit honest services fraud in violation of
18 U.S.C. 371. According to the indictment, White acquired control over Kemp's decision-making by making
corrupt payments and gifts to Kemp, and then used that control to direct city contracts to companies that he favored .
The indictment alleged that Hawkins aided this arrangement by funneling bribe money from White to Kemp, and
that Knight, White's girlfriend, took advantage of White's control over Kemp by accepting a steady stream of city
business through RPC Unlimited. Moreover, **the indictment charged Holck and Umbrell with participating in the
conspiracy by extending, through Commerce Bank, otherwise-unavailable loans to Kemp in exchange for
preferential treatment from Kemp on official matters.
FN1. The defendants were initially indicted on June 29, 2004. For simplicity, all references to the
indictment refer to the superseding indictment.
FN2. White passed away before trial.
In addition to the conspiracy charge, the indictment also charged the defendants with numerous counts of honest
services mail fraud, honest services wire fraud, extortion, and perjury. Of these charges, four groups are relevant to
this appeal. First, Kemp was charged with two counts of honest services mail fraud for his role in an asset-locator
business that he created and operated with his friend, Rhonda Anderson. Second, Holck and Umbrell were charged
with eight counts of honest services wire fraud concerning their role in corrupting Kemp. Third, Hawkins was
charged with two counts of aiding and abetting wire fraud, concerning his transfer of money to Kemp . Fourth,
Hawkins was charged with four counts of perjury stemming from false statements that Hawkins allegedly made
while testifying before a grand jury investigating this case.FN3
FN3. These are but a selection of the charges included in the indictment. Overall, Kemp was charged with
one count of conspiracy, 20 counts of wire fraud, 12 counts of mail fraud, three counts of making false
statements to a bank, four counts of money laundering, four counts of filing false tax returns, one count of
extortion, and one count of attempted extortion; Hawkins was charged with one count of conspiracy, four
counts of wire fraud, and four counts of perjury; Knight was charged with one count of conspiracy, three
counts of wire fraud, and three counts of making false statements to the FBI; and Holck and Umbrell were
charged with one count of conspiracy, eight counts of wire fraud and one count of mail fraud. White was
the subject of 38 counts.
*265 B. The Government's Evidence FN4
FN4. We construe the evidence in the light most favorable to the government, as the verdict winner. See,
e.g., United States v. Dobson, 419 F.3d 231, 234 (3d Cir.2005).
[1] Kemp, Hawkins, Knight, Holck, and Umbrell proceeded together to trial. Opening statements began on
February 22, 2005, and the government presented its case over the next six weeks. Central to the government's case
were tape recordings of scores of conversations between the defendants.
1. Evidence Concerning Kemp
The government overwhelmingly proved that White showered Kemp with gifts FN5 and that Kemp permitted
White to wield an untoward influence in selecting which companies would be selected for FN6 or excluded *266 from
FN7
bond teams.FN8 Kemp and White's relationship was accurately encapsulated by Kemp's statement, after informing
White that White would be paid $35,000 to $40,000 for a city contract, [Y]ou got your boy sitting in the Treasurer's
seat, man! (App. at 12473.)
FN5. White arranged for Kemp to receive tickets to the NBA All-Star Game and concomitant festivities;
two $5,000 checks from Hawkins; a $10,350 deck; transportation and tickets to the Super Bowl in San
Diego as well as accommodation and meals; four tickets to a USA basketball game; trips to New York and
Detroit; and numerous meals. Moreover, White promised to help Kemp advance his post-treasurer career.
FN6. For instance, in an April 28, 2003 phone call, White and Kemp discussed the composition of several
bond teams. Kemp noted that White had been selected as counsel for each deal, so the two focused on
underwriters. An excerpt of the telephone call illustrates White's massive authority:
Kemp: And you wanted Loop on there.
White: Ah ...
Kemp: On the UBS, First American and Loop.
White: Yeah.... [A]lso I would like ... Janney Montgomery Scott.
Kemp: Okay.
White: All right?
Kemp: All right.
White: If I gotta take Siebert off, well, if I, we gotta take somebody off I definitely want Janney
Montgomery Scott on there. So we addin' Loop, you say, and Janney Mont...
Kemp: You ... wanted UBS, First American, Loop, and you want Janney.
White: Yeah.
Kemp: Okay, all right.
(App. 11983-84.)
A February 25, 2003 phone call found Kemp and White gloating about their successes: after White
instructed Kemp to offer a spot to a particular individual, Kemp stated, Not a problem at all. Yeah.
So, ... we got the whole rest of the team. White responded, Right. We're finally doing it the way they
use to do us, right? It's terrible, ain't it brother? Kemp replied, Oh no, it's life. Oh, it's life man. (App.
at 11707.)
Kemp and White's mode of operation is clearly illustrated in their conversation about Andre Allen, a
principal of a Philadelphia financial advisory firm, who was seeking business from the city. Right off the
bat, White asked Allen for a $25,000 contribution to the mayor's reelection campaign, and Allen
promised to consider the request. Soon thereafter, Kemp and White discussed this situation:
White: [Allen] called me, today ... He called me, you know, because I, I asked him ... if he could raise
twenty-five grand.... Called me you know, crying, talkin' about he couldn't do it.... Then he started askin'
me, well, man, if, you know, if you all deliv-, and I said, listen, man, how many times I got to tell you,
don't have that conversation with me.
Kemp: Right.
White: You know what I mean, don't have no quid pro quo conversations with me, I don't have those
kinds of conversations. You know, I said listen, I ain't got time to convince you, man, you know. Like, we
sat down and we spent a lot of time with you, and we told you, you know, you was going to be part of the
team. Now, you know, yous either, you down or you ain't with it.
Kemp: Right, right.... Cause if they don't, if they ain't with it they ain't going to get nothin.
White: That's right.
Kemp: You know, you, you just hate to say it, but that's the way it is.... You know it's not a hard decision.
You know, because that stuff comes, comes back, over and over.
(App. 12973-74.)
FN7. For instance, in the February 25, 2003 phone call, Kemp reported that he had been asked to include
Pryor, McClendon, a financial firm, and Schnader, Harrison, a law firm, on the Drexel University bond
team. White strenuously objected to these firms, and stated, [Y]ou tell him Pryor McClendon is out,
forever. White went on to demand that Schnader, Harrison also be excluded, explaining that they don't do
nothin' for nobody. (App. at 11705.) While Schnader, Harrison earned more than other law firms in fees
from bond deals while Kemp's predecessor was treasurer, during Kemp's tenure, they were not selected for
a single deal.
FN8. Philadelphia assembled a bond team to handle the issuance of bonds. This team included, among
other professionals, a lead underwriter, other underwriting banks, separate counsel for the issuer and
bondholders, and a printer for the financial documents.
The government also presented evidence concerning the asset-locator business that Kemp operated with his
friend Anderson. Anderson testified that in November 2002, Kemp told Anderson that the treasurer's office had
received a request from a company for a list of bondholders whose bonds had matured but who had not collected
their money. Kemp told Anderson that the two of them should create a business offering the same service. Kemp and
Anderson hoped to get paid by the bondholders for facilitating their recovery; Kemp and Anderson agreed that
Kemp would receive 40% of the proceeds. Kemp said that he would have to be paid in cash and that no one could
really know about his interest in it because he was treasurer. (App. at 9006.) According to Anderson, Kemp would
receive his share for providing the list of bondholders and generating the forms that had to be filed to permit the
banks to pay on the bonds. Anderson ultimately initiated this business, using a company that she co-owned with
another friend. She collected fees of $3,700 and $1,000, and paid Kemp, in cash, a total of $1,300 for his services.
2. Evidence Concerning Holck and Umbrell
The government showed that Holck and Umbrell, as executives of Commerce Bank, worked mightily to earn
contracts and increase cash deposits from Philadelphia. FN9 At the same time that they were soliciting this business,
Holck and Umbrell extended five different loans to Kemp. The government contrasted Commerce's amenability to
Kemp once he became treasurer to the fact that just before Kemp took that position, in September 2001, Commerce
rejected Kemp's application for a $2,000 line of credit with a form letter. It was the government's position that Holck
and Umbrell extended these loans to Kemp for the purpose of influencing his decision-making, while Holck and
Umbrell claimed that the loans were made in the ordinary course of business. The government's evidence
concerning these loans may be summarized as follows:
FN9. White, who was on Commerce's payroll as a consultant, aided in these efforts.
First, the government presented testimony demonstrating that Kemp introduced Paul Schnapp, a member of his
family, to Umbrell, and requested a $10,000 loan for Schnapp. Schnapp had filed for *267 bankruptcy two years
earlier, and his application for a similar loan had recently been rejected by Wachovia. Commerce required Schnapp's
wife, Teresita, a recent immigrant to the United States with almost no credit history, to co-sign the loan . Schnapp's
loan application indicated that his income was $10,000 a month, but the only supporting documentation
demonstrated income in the past month of $1,800. The branch manager wrote to a colleague that this comes from
the top and was an easy one, and Schnapp was approved for an unsecured $10,000 loan days after applying .
(App. at 16548.)
Second, Commerce provided Kemp with mortgages that allowed him to purchase a $225,000 house with no
money down. On November 4, 2002, Umbrell reported to the chairman of Commerce that Kemp had requested a
mortgage and that Umbrell and a Commerce mortgage representative would meet with Kemp the following day .
Umbrell did meet with Kemp; however, instead of a mortgage representative, the third member of the group was
White. The next day, Umbrell approved Kemp's request to be pre-qualified for a $227,000 mortgage. However,
Commerce Bank's policy was only to provide letters of pre-qualification to those individuals with credit scores of at
least 680, and Kemp's scores ranged from 456 to 526. The government presented evidence that this was not an
official Commerce pre-qualification form, but was a singular letter created by Umbrell to benefit Kemp.
The initial mortgage was formally approved on November 18, 2002-before Kemp had even completed an
application. Commerce submitted Kemp's application to its underwriting process, and the application was rejected
by the program that Commerce used to rate loans. The report indicated that Kemp's and his wife's credit scores
ranged from 440 to 528, that Kemp had a past-due liability to Wachovia of over $13,000, and that Kemp owed other
creditors an additional $20,000. Thomas Conte, who was the operations manager of Commerce's mortgage
department at the time Kemp's loan was processed, reviewed the underwriting results and also rejected the
application. However, on December 3, 2002, Holck and Umbrell reversed Conte's decision and approved the loan .
While the loan was initially contingent upon Kemp's repaying the $33,000 that he owed to creditors, a week later ,
Holck and Umbrell waived that condition. Conte testified that this process deviated from Commerce Bank's standard
underwriting procedures.
On December 18, 2002, Commerce's consumer loan department began processing Kemp's second mortgage
loan, for the additional 20% of the purchase price. Commerce's usual policy was to advance 100% financing only to
individuals with a credit score of at least 650 and no charge-offs in the past seven years. Kemp clearly did not meet
those requirements-his credit score, as calculated by this underwriting program, was 433, and his charge-off with
Wachovia originated within the previous year-and the underwriting program rejected the application. Nevertheless,
Umbrell authorized the loan on the basis of Kemp's strong bank relationship, his position as treasurer, and his
income. (App. at 16347-48.) **Contrary to Umbrell's claim that Kemp had a strong relationship with Commerce, the
government presented evidence that Kemp's account with Commerce usually contained less that $1,000.
Third, in March 2003, Commerce made a $21,300 automobile loan to Kemp. The applicable credit report
showed that Kemp's credit score was 520, which was still below Commerce's standard requirement of 650, and that
Kemp had a prior bad debt to Wachovia (as described above) and an additional prior bad debt to Summit Bank for
*268 a 1990 Pontiac Grand Am . Again, the underwriting program did not approve the loan, and again, Umbrell
overrode the declination, based on Kemp's strong bank relationship and positive previous experience. (App. at
16361.)
Fourth, in June 2003, Commerce approved Kemp's request for a $480,000 construction loan for his church,
which had been damaged by lightning. On June 23, 2003, Miriam D'Elia, an attorney at White's law office, who was
handling the closing for Commerce, informed Kemp that the church would not receive any money until it provided
all of its specifications and plans. Kemp then called Umbrell, and Umbrell agreed to disburse money to the church
for previous expenses as long as Kemp provided invoices-even without providing proof that the church had paid
those invoices. Kemp and the church's pastor then created false invoices so that the church could procure money for
invented expenses.
The day after Kemp spoke to Umbrell, D'Elia informed Kemp that Commerce's closing agent, Valerie Coates,
was very concerned that the church understood it would not receive any money at the closing. (App. at 12449.)
Kemp told D'Elia that Umbrell had approved the church's obtaining money for costs, and D'Elia responded that
Coates was real upset about that. (App. at 12450.) Coates then joined the conversation, and stated to Kemp,
[Y]ou're not expecting any funding [at closing], correct. (App. at 12452.) Kemp responded that Umbrell had
approved the church's being reimbursed for previous expenses, and Coates said, Okay, he's gonna be a bad boy
then. (App. at 12453.) Coates testified that this statement did not mean that Umbrell had acted inappropriately, only
that this decision would complicate her work.
Kemp and Umbrell spoke again later that day. Kemp asked Umbrell if he would waive any of the closing fees,
and Umbrell agreed to waive the $3,500 appraisal fee. The two then discussed the renewal of some of Philadelphia's
certificates of deposit with Commerce. Kemp told Umbrell that Umbrell did not have to work with any of Kemp's
subordinates on the deal, but should talk to Kemp himself, because I want them to know that you are my f---king
guy.... So you get special treatment. (App. at 12459.)
Coates then sent an email to Holck, asking him to approve the advance of 80% of the church's as-is value of
$150,000; immediately thereafter, Holck approved. In the file notes for the loan, Coates wrote, I did what I was told
to do. (App. at 16409.) She testified that this did not denote that she was unhappy with what had occurred, only that
her actions had been authorized.
Fifth and finally, on July 1, 2003, Umbrell called Kemp, and the two briefly discussed Philadelphia's deposits
with Commerce, and then Kemp stated, [M]y brother-in-law's looking to do a small personal loan.... What's the
maximum he can do unsecured? (App. at 12549-50.) Umbrell responded, [H]ow much does he need, tell me what
he needs, cause then I'll know what pocket to put it in. (App. at 12550.) Kemp informed Umbrell that his brotherin-law had shaky credit, Umbrell asked if it was bankruptcy bad, and Kemp responded in the negative. (App. at
12550.) Umbrell responded, What do you want to go back and promise him? ... Is [$6,000] enough for you to go
back with? ... I'm trying to make you look good ... how much do you want to ... if you want to tell him seventy five
hundred, tell him seventy five hundred. (App. at 12551.) The two ultimately agreed on $7,500, which, as the
telephone call made clear, *269 **Umbrell approved without so much as seeing an application or speaking to the
borrower. **The government presented evidence demonstrating that Holck, Umbrell, and Kemp all understood that
in return for these loans, Commerce Bank would receive preferential treatment. Most significant were the
circumstances surrounding the city's selection of Commerce to offer a $30 million line of credit in support of the
Neighborhood Transformation Initiative (NTI). In order to select the bank that would offer this line of credit, the city
instituted a bidding process, in which interested banks would submit competing financial plans to the city. Soon
after Commerce's submission, Kemp told White to tell Commerce, in the future, not to submit its bid first, because
then Kemp could tell White about the other bids so that Commerce could then bid accordingly. Later that day, White
called Umbrell, and said, Listen, uh, somebody told me to tell you that when you guys do these things, don't ever
send your stuff in first. (App. at 12192.) Umbrell responded, [Y]ou know I love you, right? ... I know who told
you that, ... and I understand why. (App. at 12192.) White then called Holck and gave him the same advice. Holck
replied, I know, I know. Corey said to him not to. (App. at 12198.)
Initially, the two best bids came from Commerce and KBC Bank. KBC offered the lowest interest rate, but
Commerce offered to defer interest for an initial period. Kemp told White that he planned to call Commerce and
convince them to lower their interest rate, which he did, in a subsequent conversation with Holck . Thus, Commerce
was given the opportunity to submit a second bid. Around this time Kemp met with Donald DiLoreto, a
representative of Wachovia Bank, and they discussed the bidding. After their conversation, DiLoreto emailed Kemp
asking if he could submit an improved bid. Kemp never responded.
After Commerce submitted its improved offer, Kemp asked his boss, Janice Davis, if they could award the line
of credit to Commerce. Davis told Kemp that if one bank was permitted to rebid, every bank must receive the same
opportunity. Neither Davis nor the representatives of the five banks who submitted bids expected that any bank
would have a chance to enter a second bid. Nevertheless, on Davis's orders, Kemp opened another round of bidding.
After the second round of bidding began, Holck and Umbrell discussed the situation in a telephone call with
White. Holck appeared confused by the process, stating you know we made ... the revised proposal to Corey? ...
And something's not smelling right. (App. at 12256.) White assured Holck and Umbrell that they did not have to
worry. This was good advice: Commerce's new bid, which conformed to Kemp's demand, was the best one and
Commerce won the line of credit. The government presented evidence demonstrating that none of the other banks
received any inside information about what to bid. The corruptness of the process was starkly described in a
telephone call between Kemp and Reverend Frank McCracken, where Kemp stated:
Listen [Commerce Bank] better take care of me man, I'm hooking em up. Did my thing. Cause, I got a
conference call at four, three thirty and that's on ah a line of credit. I got a thirty million dollar line of credit from
Commerce Bank for the city.... Ah, it was a bid though, it was a bid. And they, um, they bid, they were they were
like in second place right, so I called Steve and I said Steve, look, this is what you all *270 got to beat. See, you
didn't hear it from me, but then they came back.
(App. at 12557-58.)
At p. 278,
A. Kemp's Mail Fraud Convictions
[2][3][4] Kemp claims that the government presented insufficient evidence to support his convictions for honest
services mail fraud concerning his role in the asset-locator business for which he received $1,300. We review
sufficiency-of-the-evidence challenges with particular deference to the jury's verdict. United States v. Dent, 149 F.3d
180, 187 (3d Cir.1998). Because Kemp did not raise this argument to the District Court in his motion for acquittal,
we review for plain error. *279United States v. Vampire Nation, 451 F.3d 189, 203 (3d Cir.2006). Plain error
requires: (1) an error; (2) that is plain; and (3) that affected substantial rights. Id. As we will explain, the jury's
conclusion on this count was supported by the evidence and not plain error.
[5][6] To prove mail fraud, the government must establish (1) the defendant's knowing and willful participation
in a scheme or artifice to defraud, (2) with the specific intent to defraud, and (3) the use of the mails ... in
furtherance of the scheme. United States v. Antico, 275 F.3d 245, 261 (3d Cir.2001). Congress has clarified that the
term scheme or artifice to defraud includes a scheme or artifice to deprive another of the intangible right of honest
services. 18 U.S.C. 1346. Honest services fraud, in turn, typically occurs in either of two situations: (1) bribery,
where a [public official] was paid for a particular decision or action; or (2) failure to disclose a conflict of interest
resulting in personal gain. Antico, 275 F.3d at 262-63. The government pursued both of these discrete theories in
prosecuting the mail fraud counts at issue.
Kemp maintains that his convictions must be vacated because the government presented insufficient evidence to
prove honest services fraud under either the bribery theory or the failure-to-disclose theory. FN11 Because Kemp
challenges the sufficiency of the evidence of these two theories, and has not argued that either was legally invalid or
unconstitutional, we will affirm if the evidence is sufficient to support a judgment on either theory. See United
States v. Syme, 276 F.3d 131, 144 (3d Cir.2002) (explaining that if the evidence is insufficient to support a
conviction on one alternative theory in a count but sufficient to convict on another alternative theory that was
charged to the jury in the same count, then a reviewing court should assume that the jury convicted on the factually
sufficient theory and should let the jury verdict stand).
FN11. Kemp does not dispute that as treasurer, he was a public official who owed a duty to provide honest
services to the public. See 65 Pa. Cons.Stat. 1102; see also Antico, 275 F.3d at 262 n. 18.
Here, a reasonable jury could conclude beyond a reasonable doubt that Kemp was paid for a particular decision
or action, Antico, 275 F.3d at 263, and thus convict him of honest services fraud under a bribery theory. The
government presented evidence that Kemp and Anderson had an arrangement where Anderson would locate owners
of unredeemed city bonds and attempt to help them cash their bonds. This project required Kemp to exercise his
authority as treasurer: he provided Anderson with a list of holders of outstanding bonds and a form letter for her to
use; also, the treasurer's office was responsible for contacting the banks to facilitate the ultimate repayment. When
Anderson was asked at trial what Kemp would contribute to the business to earn his share of its proceeds, she
identified only these first two official actions. A reasonable jury certainly could have concluded that Kemp was paid
for the reasons that Anderson pinpointed-taking official action that aided the business.
Kemp argues that he was paid not for taking particular actions but because he held a stake in the business.
However, Anderson testified that the company was formally owned by her and a friend, and not Kemp. While Kemp
did suggest the idea of the asset-locator business to Anderson, a reasonable jury could have found it more likely that
Kemp was paid $1,300 for taking actions in favor of the *280 business than for providing an inchoate idea.
[7] We have repeatedly recognized that accepting money in exchange for an official action is a form of honest
services fraud.FN12 See United States v. Panarella, 277 F.3d 678, 690 (3d Cir.2002); Antico, 275 F.3d at 262-63. As
Pennsylvania law provides, public office is a public trust and ... any effort to realize personal financial gain through
public office other than compensation provided by law is a violation of that trust. 65 Pa. Cons.Stat. 1101.1. Here,
the government presented sufficient evidence for a reasonable jury to find beyond a reasonable doubt that Kemp
violated that trust by soliciting and accepting payment in exchange for taking official action. Accordingly, we find
no plain error and reject Kemp's challenge to his mail fraud convictions.
FN12. This case is distinguishable from United States v. McNeive, 536 F.2d 1245 (8th Cir.1976), where the
Eighth Circuit concluded that a chief plumbing inspector's acceptance of unsolicited gratuities that were
attached to applications for permits that required only ministerial action did not amount to honest services
fraud. Id. at 1251. Even if Kemp's actions here were largely ministerial, Kemp's role in setting the scheme
in motion and then demanding payment was of a far more insidious order than the passive behavior of the
defendant in McNeive.
B. Holck's and Umbrell's Wire Fraud Convictions
1. Challenge to the Indictment
[8][9] Holck and Umbrell lead off their attack on their wire fraud convictions by arguing that their convictions
under the bribery theory of honest services fraud must be vacated because that theory was not charged in the
indictment. We deem an indictment sufficient so long as it (1) contains the elements of the offense intended to be
charged, (2) sufficiently apprises the defendant of what he must be prepared to meet, and (3) allows the defendant to
show with accuracy to what extent he may plead a former acquittal or conviction in the event of a subsequent
prosecution. United States v. Vitillo, 490 F.3d 314 (3d Cir.2007) (internal quotation marks omitted). Moreover, no
greater specificity than the statutory language is required so long as there is sufficient factual orientation to permit
the defendant to prepare his defense and to invoke double jeopardy in the event of a subsequent prosecution.
United States v. Rankin, 870 F.2d 109, 112 (3d Cir.1989). We exercise plenary review over this challenge. United
States v. Hedaithy, 392 F.3d 580, 590 n. 10 (3d Cir.2004).
[10] We conclude that the indictment here adequately charged Holck and Umbrell with the bribery theory of
honest services wire fraud. The wire fraud counts of the indictment (counts 15-22) plainly alleged honest services
fraud, charging Holck and Umbrell with engaging in a scheme to defraud the City of Philadelphia and its citizens
of the right to defendant COREY KEMP'S honest services in the affairs of the City of Philadelphia . (App. at 587.)
Then, the specific factual allegations-some of which were incorporated by reference to the allegations of the
conspiracy charge, see Fed.R.Crim.P. 7(c)(1) (A count may incorporate by reference an allegation made in another
count.); see also United States v. Markus, 721 F.2d 442, 444 (3d Cir.1983)-were sufficient to alert Holck and
Umbrell that the government planned to pursue both theories. The indictment refers to the benefits that HOLCK
and UMBRELL extended to Kemp with the intent to influence KEMP's official actions (App. at 491), and charges
that defendants GLENN K. HOLCK and STEPHEN M. *281 UMBRELL, on behalf of their employer, Commerce
Bank, provided benefits to Kemp in the form of otherwise unavailable loans in exchange for favorable decisions by
KEMP as Treasurer of Philadelphia (App. at 554). These allegations were sufficient to charge Holck and Umbrell
with honest services fraud under a bribery theory, and accordingly, we reject Holck and Umbrell's argument that the
indictment should have been dismissed.
2. The Stream of Benefits Instruction
[11] Holck and Umbrell next claim that the District Court misstated the law when instructing the jury on the
bribery theory of honest services fraud, such that the jury was invited to convict if it concluded that Holck and
Umbrell had provided benefits to Kemp in a general attempt to curry favor. We exercise plenary review over
whether the District Court correctly stated the law, and consider whether the charge, taken as a whole, properly
apprise[d] the jury of the issues and the applicable law. Armstrong v. Burdette Tomlin Mem'l Hosp., 438 F.3d 240,
245 (3d Cir.2006) (alteration in original) (internal quotation marks omitted).
[12] While we agree with Holck and Umbrell that bribery may not be founded on a mere intent to curry favor,
we nevertheless reject their challenge to the District Court's instructions. As Holck and Umbrell recognize, there is a
critical difference between bribery and generalized gifts provided in an attempt to build goodwill. The Supreme
Court has explained, in interpreting the federal bribery and gratuity statute, 18 U.S.C. 201, that bribery requires a
quid pro quo, which includes an intent to influence an official act or to be influenced in an official act . United
States v. Sun-Diamond Growers of Cal., 526 U.S. 398, 404, 119 S.Ct. 1402, 143 L.Ed.2d 576 (1999) (quoting 18
U.S.C. 201(b)). This may be contrasted to both a gratuity, which may constitute merely a reward for some future
act that the public official will take (and may already have determined to take), or for a past act that he has already
taken, and to a noncriminal gift extended to a public official merely to build a reservoir of goodwill that might
ultimately affect one or more of a multitude of unspecified acts, now and in the future . Id. at 405, 119 S.Ct. 1402.
This discussion is equally applicable to bribery in the honest services fraud context, and we thus conclude that
bribery requires a specific intent to give or receive something of value in exchange for an official act. Id. at 40405, 119 S.Ct. 1402.
[13][14] Holck and Umbrell arrive at their conclusion that this requirement was elided by the instructions only
by reading certain sections of the jury charge out of context, which is not the way we review jury instructions,
because a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of
the overall charge. United States v. Park, 421 U.S. 658, 674, 95 S.Ct. 1903, 44 L.Ed.2d 489 (1975). Read fairly, the
instructions proffered by the District Court repeatedly emphasized the critical quid pro quo, explaining that [t]o
establish such bribery the government must prove beyond a reasonable doubt that there was a quid pro quo, ... that
the benefit was offered in exchange for the official act. (App. at 9642.) The Court continued, where there is a
stream of benefits given by a person to favor a public official, ... **it need not be shown that any specific benefit
was given in exchange for a specific official act. If you find beyond a reasonable doubt that a person gave an official
a stream of benefits in implicit exchange for one or more official acts, you may conclude that a bribery has
occurred. (App. at 9643.) Finally, the Court explained,*282 [t]o find the giver of a benefit guilty, you must find
that the giver had a specific intent to give ... something of value in exchange for an official act, that is, that the
accused had the specific intent to engage in such a quid pro quo exchange. (App. at 9643-44.) This instruction
correctly described the law of bribery, and left no danger that the jury would convict upon merely finding that Holck
and Umbrell provided benefits to Kemp in a general attempt to curry favor or build goodwill.
[15] Moreover, we agree with the government that the District Court's instruction to the jury that it could
convict upon finding a stream of benefits was legally correct. The key to whether a gift constitutes a bribe is
whether the parties intended for the benefit to be made in exchange for some official action; the government need
not prove that each gift was provided with the intent to prompt a specific official act. See United States v. Jennings,
160 F.3d 1006, 1014 (4th Cir.1998). Rather, **[t]he 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. Thus, 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. Id.; see also United States v. Sawyer, 85 F.3d 713, 730 (1st Cir.1996) (stating that a person with
continuing and long-term interests before an official might engage in a pattern of repeated, intentional gratuity
offenses in order to coax ongoing favorable official action in derogation of the public's right to impartial official
services). While the form and number of gifts may vary, the gifts still constitute a bribe as long as the essential
intent-a specific intent to give or receive something of value in exchange for an official act-exists. This theory was
accurately and entirely presented to the jury in the jury instructions, and accordingly, we reject Holck and Umbrell's
argument that the instructions as proffered were inadequate.
At p. 284,
4. Sufficiency of the Evidence for Bribery Theory
[17] Holck and Umbrell's final challenge to their honest services wire fraud convictions is that the government
presented insufficient evidence to sustain those convictions under a bribery theory. According to Holck and
Umbrell, the government failed to prove: (1) that they made a payment to Kemp; (2) that they received a benefit
from Kemp; and (3) that the two were directly connected. As noted above, we will view the evidence in the light
most favorable to the Government and sustain the verdict if any rational juror could have found the elements of the
crime beyond a reasonable doubt. United States v. Cartwright, 359 F.3d 281, 286 (3d Cir.2004) (internal quotation
marks omitted).
As we held above, bribery requires a specific intent to give or receive something of value in exchange for an
official act. **We note that evidence of a quid pro quo can be implicit, that is, a conviction can occur if the
Government shows that [the defendant] accepted payments or other consideration with the implied understanding
that he would perform or not perform an act in his official capacity. Antico, 275 F.3d at 257. As we have
recognized, the official and the payor need not state the quid pro quo in express terms, for otherwise the law's
effect could be frustrated by knowing winks and nods. FN15 Id. at 258 (quoting United States v. Bradley, 173 F.3d
225, 231 (3d Cir.1999)).
FN15. While we made that statement while discussing the Hobbs Act, it is no less applicable in the present
context. See, e.g., United States v. Woodward, 149 F.3d 46, 57 (1st Cir.1998) (permitting similar form of
proof in honest services fraud case).
We first reject Holck and Umbrell's argument that the benefits that they were accused of bestowing on Kemp-a
variety of loans-cannot constitute bribes (or the quid of a quid pro quo ) because they were made at the prevailing
interest rates in the regular course of business. As a factual matter, a reasonable jury certainly could have found that
these loans were not advanced in the usual course of business and were instead extended to Kemp and his friends
solely because of Kemp's position. For instance, Umbrell agreed to loan $7,500 unsecured to a person Kemp
described as having shaky credit without even seeing an application or speaking to the borrower. Umbrell's stated
purpose for approving this loan was to make Kemp look good. Moreover, Kemp's mortgage loans were approved
by Holck and Umbrell before Kemp filed an application, and *285 despite the fact that Commerce's computer
program and underwriter rejected the mortgages. Indeed, an underwriter from Commerce testified that the
procedures used to approve this loan failed to comply with standard practice. This evidence is sufficient to support a
jury's conclusion that these loans were made available to Kemp only because he was the treasurer.
[18] Moreover, as a legal matter, we conclude that providing a loan to a public official (or his friends or family)
that would have otherwise been unavailable to that official or available at a higher interest rate may constitute a
bribe. This is consistent with our discussion in Antico where, concerning quid pro quo under the Hobbs Act, we
broadly described a bribe as involving payments or other consideration. Id. at 257 (emphasis added). Further, the
conclusion comports with the federal bribery statute, which refers to anything of value, and other general
definitions of bribery. See, e.g., Black's Law Dictionary 186 (7th ed.1999) (defining bribery as [t]he corrupt
payment, receipt, or solicitation of a private favor for official action). It also takes account of the commonsense
notion that a loan may be of immense value to the recipient: for instance, here, Kemp's mortgage loan allowed him
to purchase a house.
Our conclusion that a loan may constitute the quid in a bribery prosecution is also supported by the relevant
caselaw. Most notably, in United States v. Gorman, 807 F.2d 1299 (6th Cir.1986), the defendant argued that a loan
was not a thing of value under 201 because he fully repaid the loan with interest. Id. at 1304. The Sixth Circuit
rejected that argument, because at the time that the defendant received the loan he was having severe financial
difficulties and it was unclear whether such a loan would have been available to him in the ordinary course of
business. Id. at 1305. The court focused on the value that the recipient subjectively attache[d] to the items
received. Id. A loan was also recognized as a potential quid in United States v. Williams, 705 F.2d 603 (2d
Cir.1983). There, a United States Senator was convicted under the federal bribery statute for seeking funds for the
financing and purchase of a mining venture in which he had an interest in exchange for his assistance in obtaining
government contracts for the venture. Id. at 612. One of the two sorts of funds that the senator sought was a $100
million loan that was to be repaid with interest. Id. at 620. The court never questioned that the loan could serve as a
bribe, and termed the evidence against the senator overwhelming. Id. at 612; see also United States v. Crozier, 987
F.2d 893, 901 (2d Cir.1993) ([A]s we have held in connection with 201, any payment that the defendant
subjectively believes has value, including a loan, constitutes a thing of value within the meaning of 666(c)).
Thus, we conclude that loans, so long as they are granted in exchange for an official act, may drive a bribery
prosecution.FN16
FN16. Indeed, given that the government must also prove the loan was given in exchange for some official
action, there is little danger that honest loans will trigger criminal liability.
[19] We also conclude that Holck and Umbrell's assertion that they did not receive any benefit from Kemp is
contradicted by the record evidence. Despite Holck and Umbrell's protestations, a reasonable jury could undoubtably
have concluded that Kemp provided a benefit to them when he rigged the bidding for the NTI line of credit in
Commerce's favor. The government showed that after Commerce submitted its bid, Kemp told White to tell Holck
and Umbrell not to submit their bids first, because then Kemp could tell *286 White about the other bids. This alone
permitted a reasonable jury to conclude that Kemp intended to benefit Commerce to the detriment of other banks.
Then Kemp called Holck and gave him specific instructions about how Commerce could tweak its initial bid to
guarantee that its bid would win-a courtesy that he did not extend to any other bank. Indeed, when Wachovia
attempted to rebid, Kemp ignored its request. While a second round of bidding was instituted-on the orders of
Kemp's boss and against Kemp's wishes-only Commerce was told exactly what to bid to ensure success. This
evidence was plainly sufficient for the jury to conclude that Holck and Umbrell received a benefit from Kemp.
[20] Finally, we reject Holck and Umbrell's contention that the government failed to present evidence of a pro
demonstrating that Holck and Umbrell extended loans to Kemp in exchange for favorable treatment . Especially
damaging to Holck and Umbrell's position is the June 24, 2003 phone call between Umbrell and Kemp. There,
Umbrell agreed to waive the $3,500 appraisal fee for the church loan, and then, while the two discussed the renewal
of some of Philadelphia's certificates of deposit with Commerce, Kemp told Umbrell that Umbrell could always
speak to Kemp directly because you are my f---king guy.... So you get special treatment . While Kemp did not
elaborate about why Umbrell was his guy, the jury certainly could have inferred that it was because of the
consistent flow of loans and perks-including the waiver of the appraisal fee discussed moments before-that Holck
and Umbrell extended. The evidence also showed that not only did Kemp say that Holck and Umbrell would get
special treatment-they did. The NTI bidding process is a particularly egregious example. Further, the government
showed that Holck and Umbrell believed that they would receive this special treatment, as illustrated by the phone
call between White, Holck, and Umbrell, where Holck appeared surprised that any bank besides Commerce would
get a second opportunity to bid, stating that you know we made ... the revised proposal to Corey? ... And
something's not smelling right. Similarly, Kemp's explanation of the NTI transaction to his friend, in which Kemp
stated that Commerce Bank had better take care of him because he hooked them up with the NTI deal, evinced his
understanding that he was giving Holck and Umbrell special treatment in exchange for loans. This course of conduct
permitted the jury to infer that Kemp had agreed with Holck and Umbrell that he would take official action in their
favor in exchange for their providing him loans and benefits.

Accordingly, we conclude that the government presented sufficient evidence to support the jury's verdict against
Holck and Umbrell on the honest services wire fraud charge.FN17
People v. Diedrich, 31 Cal.3d 263, 643 P.2d 971, 182 Cal.Rptr. 354 (Cal.,May 06, 1982)
Defendant was convicted in the San Diego Superior Court, Ross G. Tharp, J., of two counts of bribery and one count
of conspiracy to commit bribery. Codefendant appealed from conviction on conspiracy count. The Supreme Court,
Kaus, J., held that: (1) evidence was sufficient to sustain conviction of bribery; (2) evidence was sufficient to sustain
conviction of receiving, offering to receive, and agreeing to receive a bribe; (3) refusal to give requested instruction
constituted reversible error on bribery count; and (4) conspiracy count was not barred by statute of limitations.
Reversed in part and affirmed in part.
[1] Bribery 63
1(1)
63 Bribery
63k1(1) k. In General. Most Cited Cases
Crime of bribery consists of elements that person charged be member of one of bodies specified in bribery statute ,
person ask for, receive, or agree to receive something of value or advantage, present or prospective, and request,
receipt or agreement to receive be upon understanding that his opinion, judgment or action upon any official matter
on which he may be required to act will be influenced. West's Ann.Penal Code 165.
[2] Bribery 63
11
63 Bribery
63k8 Evidence
63k11 k. Weight and Sufficiency. Most Cited Cases
Evidence supported conviction for bribery occurring when defendant willfully and unlawfully received, offered to
receive, and agreed to receive a bribe to influence his vote with respect to certain piece of land. West's Ann.Penal
Code 165.
[3] Bribery 63
11
63 Bribery
63k8 Evidence
63k11 k. Weight and Sufficiency. Most Cited Cases
While there was no express evidence of any agreement or understanding to bribe a county board supervisor , proven
facts not only implied one, but were virtually irreconcilable with any other theory and conclusion that defendant,
former county board supervisor, was guilty of receiving, offering to receive and agreeing to receive a bribe was
amply justified. West's Ann.Penal Code 165.
150
110 Criminal Law

110X Limitation of Prosecutions
110k148 Commencement of Period of Limitation
110k150 k. Continuing Offenses. Most Cited Cases
Prosecution for conspiracy to violate bribery statute was not barred by three-year statute of limitations applicable to
conspiracy, although defendant contended that primary object of conspiracy occurred three years before prosecution
was brought, in light of fact that conspiracy to bribe was a matter which continued beyond first incident. West's
Ann.Penal Code 165.
KAUS, Justice.
Ralph Diedrich, a former member of the Orange County Board of Supervisors, appeals from a conviction of two
counts of bribery (Pen.Code, 165), and one count of conspiracy to commit bribery (Pen.Code, 182, subd. 1).
Leroy Rose appeals from a conviction on the conspiracy count.
I
FACTS-OUTLINE
In 1970, **the Grant Corporation (Grant) acquired a 4,200-acre parcel known as Anaheim Hills, and formed
**Anaheim Hills Incorporated (AHI) to develop the land. About half of this parcel was the subject of an agricultural
preserve agreement, negotiated by the previous owner under the Williamson Act. (Gov.Code, 51200 et seq.; see
generally *268 Sierra Club v. City of Hayward (1981) 28 Cal.3d 840, 850-853, 171 Cal.Rptr. 619, 623 P.2d 180.)
Under that act landowners can enter into agreements with local governments, which, in exchange for substantial tax
benefits, limit the use of the land to agricultural purposes. The agreements last a minimum of 10 years, but can be
cancelled if approved by the governmental body having jurisdiction-in this case the Orange County Board of
Supervisors. When Grant purchased Anaheim Hills, the agricultural preserve agreement had seven more years to
run. The corporation's management wanted to remove the land from the preserve and build on it as soon as possible
because the land was highly leveraged; interest payments alone totaled about $7,000 a day.
**Ralph Diedrich was elected to the Orange County Board of Supervisors in November 1972. Shortly after his
election he met with **Richard Owen, president of Grant.FN1 Owen explained his company's desire to remove the
land from the preserve and sought Diedrich's help. About the same time, **Leroy Rose requested a luncheon
meeting with **William Stark, president of AHI. **Rose was an architect/land planner, Diedrich's personal friend
and his campaign finance chairman. Rose and Stark discussed the possibility of meeting with Diedrich, and Rose
mentioned that he was interested in selling a piece of property in Fullerton to AHI.
FN1. Owen testified at the trial under a grant of immunity.
On January 16, 1973, Diedrich and Rose met with Owen and Stark, toured Anaheim Hills, and dined at the Jolly Fox
Restaurant. During dinner, Owen explained the merits of removing his company's parcel from the agricultural
preserve, and Rose attempted to sell the Fullerton land to **973 Owen. Owen testified that one of the defendants
suggested that if Owen purchased the Fullerton land, it would materially ***356 help ... getting Anaheim Hills out
of the agricultural preserve. Diedrich or Rose acknowledged that the price of the Fullerton land was about $150,000
over market, but suggested that AHI could break even by building on the property. According to Owen, Stark left the
table exclaiming, This is getting too heavy for me. Neither Grant nor AHI bought the Fullerton property.
During the same month, Owen had additional conversations with Diedrich. **Diedrich recommended that AHI hire
Michael Remington, Diedrich's own attorney, to handle its agricultural preserve problems. Diedrich told Remington
that he was referring a very good client with a *269 case of the $100,000 variety. Diedrich also instructed
Remington to handle the case outside of his regular law practice-assertedly because Remington's partner was on the
City Council of Orange. **Owen and Remington agreed on a fee of about $100,000: a $50,000 retainer, the balance
to be billed in monthly installments not to exceed $15,000.FN2 Remington personally picked up the $50,000 retainer
and deposited it in two newly opened bank accounts. In March 1973, he received two more checks totaling $24,480,
which were deposited into one of the accounts.
FN2. The testimony indicates that there was little corporate separation between AHI and Grant, despite the
fact that AHI was half owned by Texaco. Owen, president of Grant, hired Remington to represent AHI.
On March 2, 1973, at Diedrich's request, Remington wrote a $10,000 check on one of the new accounts to Ben
Richman, who had asked Diedrich to invest in his sign business. In accordance with Diedrich's request, Remington
negotiated and prepared a partnership agreement with Richman in his, Remington's, own name. Richman eventually
returned the money to Remington because the agreement was unsatisfactory.
Two weeks later-and again at Diedrich's request-Remington prepared a $30,000 check to Bill Moore to repay a loan
owed by Diedrich. Later, **Remington also prepared a $25,000 check to Viking Mauna Loa Management Company,
a company wholly owned by Diedrich. Diedrich personally picked up both checks.
Remington was ostensibly hired to assist in removing Anaheim Hills from the agricultural preserve . Nevertheless,
for the $100,000 he was promised, the only documents he distributed to public bodies were a 17-page background
report and accompanying resolution for the Anaheim City Council FN3 and a 2-page memo for the Orange County
Planning Department. Since the portion of AHI's land in the agricultural preserve was at this point completely within
the jurisdiction of the Orange County Board of Supervisors, the resolution and report were *270 simply intended to
encourage the Anaheim City Council to urge the County Board of Supervisors to remove the land from the
agricultural preserve. Neither Remington nor his employees ever appeared before a public body on behalf of AHI.
Former State Senator Carpenter testified, based on his considerable experience as an attorney dealing with real estate
transactions and the Williamson Act, that the fee paid to Remington was way too high.
FN3. A portion of Anaheim Hills was within the limits of the City of Anaheim. Another portion of the land
was within Anaheim's sphere of influence and would eventually be incorporated within the city.
In May 1973, Grant cut off contact with Remington because Remington had encountered serious personal legal
problems. Owen urgently instructed his new attorney to pick up the AHI file because he didn't want anyone else to
get hold of [it]. He testified that he was particularly concerned that the district attorney's office might see it. AHI
voided a $27,909 check to Remington, the final payment for Remington's purported legal services . Despite serious
financial difficulties, Remington never renewed his request for the money.
**974 On March 6, 1974, the Orange County Board of Supervisors, by a three-to-two vote, agreed to remove
Anaheim Hills from the agricultural preserve. The resolution ***357 and agreement approved by the board were not
prepared by the county counsel as was customary, but furnished by Diedrich. As a condition of releasing the
Anaheim Hills land from the agricultural preserve, the agreement required AHI to dedicate to the county a perpetual
easement in gross on 954 acres of its land. However, 504 of these acres were not specified in the agreement; AHI
retained the right to select these acres in the future-subject to the approval of the county board of supervisors.
About a month after the vote releasing Anaheim Hills from the preserve agreement, Diedrich called Owen and
requested a $70,000 loan. Owen refused the loan because Grant was a public corporation and ... it would not appear
proper if we would loan a public official any money .... He suggested, however, that Diedrich speak to a friend who
was a vice-president of Farmers and Merchants Bank. Owen also provided an appraiser, obtained a title report, and
analyzed Diedrich's equity in certain collateral. Diedrich obtained an $80,000, 120-day loan from the bank.
From January 1973 through March 1974, Rose had called and written to AHI and Grant many times, requesting
architectural and engineering contracts. On March 21, 1974, shortly after the vote releasing Anaheim Hills from the
agricultural preserve, a representative of Grant *271 wrote to Rose explaining: As I've indicated previously, all of
our projects are commissioned and there are no new projects in the near future. Nevertheless, in June 1974, AHI's
new president, Jack Sickler, hired Rose to develop a conceptual plan for the development of a portion of Anaheim
Hills. The purpose of the project was ostensibly to demonstrate to the Anaheim City Council that a grading
ordinance which it had proposed would result in an unjustified loss of usable land and would not benefit the city.
There was, however, evidence-to be analyzed later-that the project was largely fictitious.
From July through December 1974, AHI paid Rose about $95,000. During the same period, Rose gave $10,000 to
Diedrich directly, and wrote checks to Remington totaling $40,000. Remington testified that he cashed these checks
and gave most of the money to Diedrich. Of this sum $20,000 was paid to Diedrich on December 31, 1974. An
additional $47,338 was paid to Rose from January to September 1975.
THE INDICTMENT
Diedrich was indicted on two counts of bribery (Pen.Code, 165) and one of conspiracy to commit bribery
(Pen.Code, 182, subd. 1) on December 15, 1977. Count I alleged that Diedrich willfully and unlawfully received,
offered to receive, and agreed to receive a bribe on or about the months of January 1973 through April 1973. Count
II alleged that Diedrich received, offered to receive, and agreed to receive a bribe on or about December 31, 1974.
Count III alleged that Diedrich and Rose entered into a conspiracy to violate section 165 of the Penal Code on or
about September 3, 1975, FN4 and for three years prior to that date. The jury found Diedrich guilty on all three
counts, and Rose guilty of having participated in the conspiracy.
FN4. This was the date on which the last payment from AHI to Rose was allegedly made.
II
A. Sufficiency of The Evidence-Count I
Diedrich contends that the evidence on count I is insufficient to sustain a conviction. We disagree.
Penal Code section 165 states in relevant part: Every person ... [on] any common council, board of supervisors, or
board of trustees of *272 any county, city and county, city, or public corporation ... who receives, or offers or agrees
to receive any bribeFN5 ***358 **975 upon any understanding that his official vote, opinion, judgment, or action
shall be influenced thereby, or shall be given in any particular manner or upon any particular side of any question or
matter, upon which he may be required to act in his official capacity, is punishable by imprisonment ....
FN5. Somewhat redundantly, Penal Code section 7 defines a bribe for the purposes of the Penal Code as
anything of value or advantage, present or prospective, or any promise or undertaking to give any, asked,
given, or accepted, with a corrupt intent to influence, unlawfully, the person to whom it is given, in his
action, vote, or opinion, in any public or official capacity.
[1] Thus, as far as the bribe-taker is concerned, the crime of bribery consists of three elements: **(1) the person
charged must be a member of one of the bodies specified in section 165, **(2) that person must ask for, receive, or
agree to receive something of value or advantage, present or prospective; and **(3) the request, receipt or
agreement to receive must be upon an understanding that his opinion, judgment or action upon any official matter on
which he may be required to act will be influenced. With regard to count I, Diedrich contends generally that no
understanding existed.
Count I covers the period from January to April 1973. During that time several events occurred that could form the
basis of an understanding: **Rose, in Diedrich's presence, offered to sell his land to AHI apparently in exchange for
Diedrich's vote on the agricultural preserve; **Diedrich suggested that AHI hire Remington apparently in exchange
for Diedrich's favorable vote on terminating the preserve. **The offer of the Fullerton land was refused, but the
suggestion to hire Remington was accepted and he was paid over $74,000 of which $55,000 was eventually given to
Diedrich or used for his benefit.
Diedrich contends that the jury could not have concluded beyond a reasonable doubt that he or Rose offered Rose's
Fullerton land for $150,000 over its market price in exchange for Diedrich's help in terminating the agricultural
preserve. The record belies this contention.
There were four people present at the Jolly Fox when the disputed statement was allegedly made: Richard Owen,
Grant's president, William Stark, AHI's president, Rose and Diedrich. Owen testified to the statement. Stark testified
that he could not remember any of the conversation at the Jolly Fox, but did remember leaving the table. Rose and
Diedrich denied that the statement was made.
*273 At trial, defense counsel introduced Owen's testimony at a pretrial hearing as evidence of a prior inconsistent
statement. At the earlier hearing, Owen testified that he was very suspicious of politicians, and ... just assumed that
if they got [$]150,000, their cooperation would be there. (Italics added.) When questioned about the prior
statement, Owen maintained that the connection between the purchase of the Fullerton land and releasing Anaheim
Hills from the agricultural preserve, was, in fact, made explicit by the statement that the purchase would materially
help getting Anaheim Hills out of the preserve.

From this testimony a jury could, of course, have concluded that the statement alleged by Owen was made.
**Actually, even if the statement was not made, the jury could have concluded that a request for a bribe was implicit
in the offer of grossly over-priced land at the time AHI was seeking Diedrich's support in removing Anaheim Hills
from the agricultural preserve.
The jury could also have concluded that even if the entire discussion of the Fullerton land had not taken place,
Diedrich was guilty of accepting a bribe based on his suggestion that AHI hire Michael Remington and the financial
transactions that took place after he was hired. Diedrich argues that Remington's hiring could not have been a bribe
because every witness who testified as to the hiring of Remington, especially Owen, swore that he was hired on the
merits as an attorney, not as part of a scheme to commit bribery. FN6 While no direct ***359 **976 testimony
suggested that Remington was hired as a conduit for a bribe, Owen's motivations in hiring Remington are immaterial
to the issue of whether an understanding existed. The terms agreement, and understanding as used in the
bribery statutes are terms of art. In People v. Fitzpatrick (1926) 78 Cal.App. 37, 45, 247 P. 601, the court noted:
The agreement referred to ... in section 165 of the Penal Code ... is not the kind of agreement contemplated by the
civil law of contracts, under *274 which there must be an actual meeting of the minds of contracting parties in order
to form an agreement.... **The terms of the statute are met if it is proven to the satisfaction of a jury that the
defendants [i.e., the bribe-takers] have agreed or intended in their own minds to receive a bribe. Similarly, the
court in People v. Gliksman (1978) 78 Cal.App.3d 343, 350-351, 144 Cal.Rptr. 451 concluded: **It is the state of
mind of the actual or potential bribe-receiver that is determinative; a bilateral agreement is not necessary. (See also,
People v. Squires (1893) 99 Cal. 327, 330, 33 P. 1092; People v. Vollmann (1946) 73 Cal.App.2d 769, 788, 167 P.2d
545; People v. Brigham (1945) 72 Cal.App.2d 1, 7, 163 P.2d 891; People v. Kerns (1935) 9 Cal.App.2d 72, 75, 48
P.2d 750.)
FN6. Owen testified that, at the time he hired Remington, it was very, very obvious that I needed someone
to help me .... And it wasn't the type of situation that at the time I interpreted as being anything other than
being a friendly, helpful-type recommendation. Owen also testified that he called others to verify
Remington's qualifications and only hired him after concluding that he was a capable attorney. It is clear,
however, that Owen's attitude toward Remington changed during the course of their discussions. Owen
testified that while talking to Remington, the events at the Jolly Fox dinner influenced his decision to hire
him. Later, when Remington developed legal trouble, Owen immediately sent his new attorney to
Remington's office to retrieve the AHI files. As noted, he was particularly concerned that the district
attorney's office should not obtain them.
There was ample testimony regarding the Remington-Diedrich relationship from which the jury could have
concluded that through Remington as his agent, Diedrich accepted money from AHI with the understanding that his
official conduct would thereby be influenced. First, Diedrich was instrumental in setting up the agreement between
AHI and Remington. It was he who suggested that Owen hire Remington, he who set Remington's fee by suggesting
that the case was of the $100,000 variety, and he who instructed Remington to handle the case outside of his
regular law practice. Clearly, Diedrich exercised considerable control over Remington's actions vis-a-vis AHI.
Stark, the president of AHI, apparently viewed the arrangement as improper. He testified that after signing a $13,000
check to Remington, he refused to sign additional checks because he didn't like what [he] was feeling. He further
testified, I didn't hire this gentleman. I felt uncomfortable for what I considered to be very large amounts of money
for, in my view, or at least to my knowledge, very little work. And I didn't feel I could sign it and uphold my
responsibilities to our Texaco partners. As noted, Remington produced two short documents for the $74,000 he was
ultimately paid.
Remington himself realized that the arrangement was improper, commenting to his office manager, Donna Doughty,
that he was to be Diedrich's bagman. When Doughty asked what Remington meant, he explained that a bagman
was a person who acted as a go-between for a politician and a company seeking a favor . Doughty also indicated that
Remington had referred to the 17-page document he prepared for AHI as window dressing. Remington's failure to
pursue the balance of his *275 fee-over $25,000-owed to him by AHI further suggests that he did not view the
payments as compensation for services rendered.
Remington testified that after AHI became his client, Diedrich called him and told him that now that he had lots of
money, he could lend some of it out where [Diedrich] wanted it. As noted, Remington complied, writing a
$10,000 check to Ben Richman, repaying Diedrich's $30,000 debt to Bill Moore and writing a $25,000 check to
Viking Mauna Loa Management Company, Diedrich's sole proprietorship. Remington told Doughty that for the
books they would call the transactions loans. No formal**977 papers were drawn up reflecting the loans .
**Remington testified that the loans were never repaid. These facts suggest that Diedrich had an expectation that
the money paid to Remington would be his own.
***360 The prosecution relied on two facts which, it claimed, showed that Diedrich's official conduct was actually
influenced by the money he received from AHI. The first was a meeting between Diedrich and representatives of the
county counsel's office concerning the need for an environmental impact report (EIR) to be prepared in conjunction
with removing Anaheim Hills from the agricultural preserve. John Allday, head of the environmental services
division for Orange County, testified that he recommended the EIR cover the effects of both the conversion to
agricultural zoning and the ultimate development of the land, since it was clear that development was to take place .
Diedrich argued that the EIR should cover only the reversion from agricultural preserve to agricultural zoning. In
addition, of course, the prosecution heavily relied on the March 6, 1974, resolution and agreement removing AHI
from the agricultural preserve.
[2] The evidence easily supports the conviction on count I. In fact, as will be seen in part III of this opinion, it
supports it once too often.
B. Sufficiency of the Evidence-Count II
Diedrich contends that the conviction on count II must be reversed because no evidence was presented that any
specific action regarding Anaheim Hills was pending before the board on December 31, 1974, the date identified in
the count II indictment. The contention has no merit.
*276 The law does not require any specific action to be pending on the date the bribe is received. Penal Code
section 165 prohibits asking or receiving a bribe to effect the consideration ... of any question or matter, upon
which [a person named by the statute] may be required to act in his official capacity, ... (Italics added.) The use of
the word may suggests that payments designed to alter the outcome of any matter that could conceivably come
before the official are within the prohibition of the statute.
In People v. Markham (1883) 64 Cal. 157, 30 P. 620, a contention similar to defendant's was rejected. In Markham, a
police officer was charged with asking for and receiving a $15 bribe on the understanding that he would not arrest
persons for violation of the gaming laws. On appeal Markham contended that no evidence was introduced showing
that any one had committed the crime for which he had agreed not to arrest. Affirming the conviction, this court
said: [W]e think when a police officer receives money in consideration of his promise that he will not arrest any
one of a class of offenders against the criminal laws, he is guilty of receiving a bribe, because the case of one who
has committed the offense, and the consequent duty of the officer to arrest is a matter which may be brought before
him in his official capacity. We are of opinion that a police officer who shall receive a weekly stipend, or a single
payment of money, in consideration of his promise not to arrest any violator of the gaming law, is not only morally
guilty, but may be found guilty under the statute .... (Italics in orig.; Markham, supra, at p. 159, 30 P. 620.)
In this case, there is ample evidence of matters that might have come before the board of supervisors: **(1) zoning
approvals for housing tracts to be developed, **(2) allocation of gas tax for building roads in the area, **(3) use of
open space for orchards, and (4) sale of land needed for a flood plain to the county. Evidence concerning each of
these issues was received at the trial.
Of overriding importance, however, was the matter left open by the March 1974 vote. As noted, the terms of the
March 6, 1974, agreement required AHI to dedicate to the county 954 acres for a perpetual easement in gross. Under
the agreement, the boundaries of 504 of these acres were not specified and the county had the right **978 to approve
the selections when offered in the future. The land was to be ceded in 100-acre lots beginning in 1976 and
continuing yearly until 1981.

*277 According to the testimony of John R. Shaddy, Orange County Manager of Facility ***361 Planning, AHI had
a considerable stake in the county's approval of land it proferred. Land that was tentatively identified to be conveyed
to the county was divided into three categories based on its slope. However, there was no provision in the agreement
specifying the acreage in each category that would be conveyed to the county. It was possible, for example, that all
of the land conveyed to the county could be in the 30-plus degree category. Depending on the slope of the land
eventually selected, the value of the land conveyed could vary from $1.2 million to $2.9 million . The board had
discretion to determine whether the land offered met the terms of the agreement. Clearly, the board's pending
approval of this land was a matter that might come before Diedrich in his official capacity.FN7
FN7. At the time of trial, the board had not taken action on this matter.
Diedrich also contends that there was no evidence of any agreement or understanding that official action would be
influenced by the payments alleged in count II of the indictment. Again we disagree.
Once the agricultural preserve problem was out of the way, the purpose of the bribe alleged in count I was
presumably accomplished. Yet a month later, Diedrich called Owen to request a $70,000 loan. In itself, this was
questionable behavior for a legislator who had just voted on a matter specifically pertaining to AHI. Owen, in fact,
testified that he thought the bribe attempt had ended when Remington encountered his legal problems and that, when
Diedrich requested the loan, he thought, Here it comes again.
Defendants contend that AHI's hiring of Leroy Rose to prepare a conceptual plan was based on his ability as an
architect and planner, as well as political influence-that it was not a bribe. A number of witnesses, including Owen,
testified that Rose was, in fact, known for his architectual abilities and political clout. Defendants further claim that
the project for which Rose was hired was legitimate, not make work as the prosecution contended.
There was, however, considerable evidence from which the jury could have inferred that at least a portion of the
money flowing to Rose was intended as a bribe for Diedrich. Rose received $142,000 for a conceptual plan that was
intended to influence the Anaheim City Council, but never appeared before the council to argue about grading
ordinances. *278 The council completed action on the proposed ordinance before a brochure explaining the plan was
prepared. The plan Rose ultimately prepared, which was never implemented, cost almost three times as much as the
master plan of Anaheim Hills and the design of the buildings it suggested violated existing building codes.
Although Rose allegedly spent 900 to 1,000 hours on the job and produced a number of drawings and renderings, he
was unable to justify his billings adequately. He testified that, of the approximately $142,000 he was ultimately
paid, $60,000 was for his own efforts and the remainder for his employees' services . However, he could not produce
time records establishing his employees' hours. He was also unable to fully document his own fees-testifying at one
point that he billed AHI at $30 an hour (or $30,000 for 1,000 hours) but then explaining that the $60,000 figure was
reached by adding fees for liaison work. Rose testified that his fees for liaison work were not hourly but were
determined arbitrarily. **The jury could easily have inferred that Rose's assignment was not legitimate.FN8
FN8. The jury did not need to conclude that Rose's work was entirely spurious because the amounts of
money flowing from Rose to Diedrich demonstrate that Rose retained a significant portion of the money
from AHI. Of the about $140,000 Rose received from AHI, he paid $10,000 directly to Diedrich and
$40,000 to Remington. He may have retained as much as $90,000.
**979 In addition, there was evidence that Diedrich acknowledged that AHI's payments to Rose were intended for
him. In September 1974, the $80,000 note that Owen helped Diedrich secure became due ***362 and was in default.
Owen, apparently concerned that the default would jeopardize his own relations with the bank, called Diedrich and
urged him to pay the loan. Diedrich responded to Owen's request: ... Mr. Rose hasn't paid me and you haven't paid
him.
Shortly after the call, AHI began to pay Rose substantial sums. Rose, in turn, paid $10,000 directly to Diedrich and
$40,000 to Remington. Remington then cashed the checks from Rose and paid most of the money to Diedrich.
The defendants' explanation of the pattern of payments flowing from Rose to Remington to Diedrich was wholly
inadequate, raising more questions than it put to rest. Rose claimed that $30,000 paid to Remington was a finder's
fee for architectural projects that Remington had directed to Rose and that $10,000 was a legal fee for collecting a
debt. *279 However, Rose was unable to specify the work Remington had done to earn these fees, commenting at
one point: We never questioned people about finder's fees. No agreement was drawn up between Rose and
Remington regarding Remington's purported legal services for Rose.
Remington's testimony was strongly at odds with Rose's explanation of the payments. Remington testified that in
late 1974 Diedrich asked if he could handle some additional income that year. He agreed. Shortly thereafter,
Remington began to receive checks from Rose. When he called Rose to ask why the checks had been sent, Rose
responded: Talk to Ralph [Diedrich]. Diedrich instructed Remington to run [the money] through [his] practice
and pay the tax on it and give [Diedrich] the balance in cash. Remington testified that he did no work for Rose
during this period, and that Rose had no financial obligation to him.
Remington testified that he cashed the checks from Rose and, after keeping a small portion with which to pay
taxes,FN9 gave the cash to Diedrich. Although Diedrich denied that he received any cash from Remington during this
period, the pattern of Remington's checking account deposits and Diedrich's payments on his loan support
Remington's testimony.FN10 All of this evidence strongly suggests that Diedrich not only received money from AHI,
but that he actively attempted to hide the payments.
FN9. Because of other deductions, Remington actually suffered no tax liability as a result of having passed
the money through his account.
FN10. Remington cashed a $10,000 check from Rose on October 10, 1974. Diedrich made a $23,153
payment on his bank loan on the same date. Remington deposited another $10,000 check from Rose on
November 21, 1974, withdrawing $9,000 in cash a day later. Diedrich made a $10,000 loan payment the
same day. Remington deposited two $10,000 checks from Rose on December 30, 1974. A day later he
withdrew $20,000 in cash. Diedrich made a $10,000 payment on his loan the same day and another four
weeks later. This pattern clearly supports Remington's testimony that the money he received from Rose
was, in fact, given to Diedrich.
[3] In sum: While there is no express evidence of any agreement or understanding, the proven facts not only imply
one, but are virtually irreconcilable with any other theory. The jury's conclusion that Diedrich was guilty as charged
in count II was amply justified.FN11
FN11. The prosecution also contends that even if the December 31, 1974, payment was made for the March
6, 1974, vote to release AHI from the agricultural preserve it would be a sufficient quid pro quo to justify
the verdict on count II. The defense, on the other hand, argues that the official action which is the subject of
the bribe must be action which is to take place in the future. This is necessarily true because past official
action, having already been concluded, could not be influenced and could not, of course, be the subject of
an understanding that it would be influenced.
The issue is academic. The record would not support a contention that the jury was misled into basing the
convictions on counts II and III on the theory that the payments which started in the summer of 1974
were in consideration of past services rendered on March 6 of that year.
People v. Honig, 48 Cal.App.4th 289, 326, 55 Cal.Rptr.2d 555, (Cal.App. 3 Dist., Aug 07, 1996)
**Any source of income, other than gifts and other than loans by a commercial lending institution in the regular
course of business on terms available to the public without regard to official status, aggregating two hundred fifty
dollars ($250) or more in value provided to, received by or promised to the public official within 12 months prior to
the time when the decision is made.
U.S. v. Spears, 49 F.3d 1136, 1995 Fed.App. 0095P (6th Cir.(Ky.), Mar 16, 1995) (NO. 94-5575)
18 U.S.C. 1014, making false statements on a loan application

McKnight v. U.S., 115 F. 972, 54 C.C.A. 358 (C.C.A.6 (Ky.) May 06, 1902)
Banks and Banking 52
257(4)
52 Banks and Banking

52IV National Banks
52k255 Criminal Responsibility of Officers or of Persons Aiding or Abetting Them
52k257 Prosecution and Punishment
52k257(4) k. Trial, Judgment, and Sentence. Most Cited Cases
**Under an indictment charging an officer of a national bank with embezzlement of its funds by causing money
of the bank to be paid to persons known by him to be insolvent, for the purpose of bribery, and with intent to defraud
the bank,-such payment being made under the guise of a loan, for which such persons executed their note to the
bank,-the insolvency of such persons is an important consideration, going to the question of intent; and an
instruction which, in effect, tells the jury that the question of their insolvency may be ignored, is misleading.
U.S. v. Arthur, 544 F.2d 730 (4th Cir.(W.Va.), Nov 04, 1976)
Defendant was convicted in the United States District Court for the Southern District of West Virginia, at
Huntington, K. K. Hall, J., on nine counts of an 18-count indictment alleging misapplication of bank funds, and he
appealed. The Court of Appeals, Donald Russell, Circuit Judge, held that instruction on payment of bribes and
making of illegal political contributions with bank money was erroneous insofar as it failed to adequately distinguish
between bribery and lawful goodwill expenditures, that a new trial was warranted by virtue of error where
determination as to whether defendant used bank money to bribe state and party officials was the crucial step in
ascertaining whether he was guilty of misapplying that money, and that instructions on meaning of injure and
intent to injure or defraud were incorrect insofar as they created a finding of intent based upon inferences stated.
Reversed and remanded.
People v. Cribas, 231 Cal.App.3d 596, 282 Cal.Rptr. 538, 545, (Cal.App. 4 Dist., Jun 21, 1991)
Defendant was convicted in the Superior Court, Orange County, No. C74030,Richard J. Beacom, J., of rape,
bribery of witnesses, and conspiring to bribe witnesses, and he appealed. The Court of Appeal, Sonenshine, Acting
P.J., held that: (1) defendant's tape-recorded conversation with victim was obtained in violation of his right to
counsel; (2) evidence was sufficient to support conviction for bribery of witnesses; and (3) specific unanimity
instruction on overt act was not required with regard to conspiracy charge.
Affirmed in part and reversed in part.
[4] Bribery 63
11
63 Bribery
63k8 Evidence
**Evidence that defendant asked rape victim to drop charges and that coconspirator suggested that victim testify
falsely and delivered money to her was sufficient to support conviction for bribery of a witness . West's
Ann.Cal.Penal Code 137(a).
422(1)
110 Criminal Law

110XVII Evidence
110k422 Grounds of Admissibility in General
Coconspirator's statements were attributable to defendant for purposes of substantive offense of bribery of a
witness. West's Ann.Cal.Penal Code 137(a).
III
[4] Cribas contends there is no evidence supporting the jury's conclusion he committed an act specified within
section 137, subdivision (a), which provides that any person who gives or offers, or promises to give, to any
witness, person about to be called as a witness, or person about to give material information pertaining to a crime to
a law enforcement official, any bribe, upon any understanding or agreement that the testimony of such witness or
information given by such person shall be thereby influenced is guilty of a felony. The information alleged Cribas
offered money to Rojas and Luisa to influence their testimony or the information they provided to the police.
Cribas asserts the evidence established he did nothing more than ask Luisa to drop the charges. The Attorney
General does not appear to contest this characterization of the evidence, but argues it would be ludicrous to
conclude that an agreement to get the witness to drop a case does not reasonably mean to influence a witness not
to testify. He points out because Luisa did not have the authority to dismiss the case, the only way she could drop
the charges was by refusing to testify. However, he points to no evidence Cribas knew that.
Cribas cites Lichens v. Superior Court (1960) 181 Cal.App.2d 573, 5 Cal.Rptr. 539 which, as he asserts, is
strikingly similar to the instant case. Lichens had repeatedly offered to pay his attempted rape victim $500 to drop
the case. He was charged with bribery of a witness under former section 136 1/2 (amended and renumbered as
**546 138).FN7 The appellate court *609 issued a writ of prohibition, observing that using money to induce the
victim to drop the charge was not unlawful because only the district attorney could consent to a dismissal .
Moreover, it was not the equivalent of inducing her not to attend the trial. (Id. at p. 576, 5 Cal.Rptr. 539.)
FN7. The only apparent difference between section 138, subdivision (a) and section 137, subdivision (a) is
the former prohibits bribing upon any understanding or agreement that the person shall not attend upon
any trial or other judicial proceeding, or attempting to dissuade such attendance. Section 137, subdivision
(a) prohibits giving or offering to give a bribe under an agreement or understanding that it will influence the
testimony of a witness or information given to law enforcement.

Cribas was originally also charged with violating section 138, subdivision (a) and section 136.1,
subdivision (c)(2). During the trial the court dismissed those counts pursuant to section 1118.1.
The Attorney General relies on People v. Pic'l (1982) 31 Cal.3d 731, 183 Cal.Rptr. 685, 646 P.2d 847. In Pic'l,
the defendant drafted a document in which the victim agreed to seek dismissal of all criminal charges which may
have been filed ... and to do everything within my power to prevent the filing of any additional charges against any
person. He also agreed to refuse to prosecute criminal charges against anyone. The Supreme Court held it
was reasonable for the grand jury to have concluded that non-attendance was within the scope of the agreement to
do everything within my power and his agreeing to refuse to prosecute reasonably contemplated refusing to
testify. (Id. at p. 740, 183 Cal.Rptr. 685, 646 P.2d 847.)
While not directly disapproving Lichens, FN8 the court distinguished it by noting the victim in Pic'l had a greater
burden in fulfilling his agreement: he had to refuse to prosecute and do everything to prevent further charges.
Absenting himself from trial would have been an obvious means of keeping the bargain. (Id. at p. 741, 183
Cal.Rptr. 685, 646 P.2d 847.) The court concluded an indictment under former section 136 1/2 may be supported by
an inference, based on the defendant's words or actions, that he has violated the statute; no express statement by the
defendant of his intent to prevent the witness' testimony is required. (Ibid.)
FN8. The Supreme Court expressly declined to reach the issue of the continued viability of Lichens in the
face of the subsequent amendment of Penal Code section 136 1/2. (Id. at p. 741, fn. 4, 183 Cal.Rptr. 685,
646 P.2d 847.) We are not confronted with the distinction between the old and new versions of the statute.
Applying these principles, the instant case more closely resembles the facts in Lichens. Here, too, Cribas did no
more than ask Luisa to drop the charges. She testified that during their first telephone conversation, he said he could
not continue to help them while in jail and that his attorney would handle having the charges dropped. In their
recorded telephone conversation, Cribas again asked Luisa repeatedly to help him get out of jail and once referred to
her dropping the charges, but insisted he did not have the money she wanted. Asking her to withdraw the charges is
no more the equivalent of influencing her testimony than it is of inducing her not to attend the trial.
*610 However, assuming Lichens was correctly decided, Cribas gains little solace from this conclusion,
because there is other evidence, not cited by either party, which is sufficient for conviction. Rojas testified that in
one of his conversations with Danilo, Danilo suggested he say that on the day of the incident Rojas was drunk, had
hit Luisa, and that she suffered from nervousness and did not know what had happened.
[5] Because Cribas and Danilo were established as conspirators, Danilo's statements are attributable to Cribas
for purposes of the substantive offense. (People v. Brawley (1969) 1 Cal.3d 277, 289, 82 Cal.Rptr. 161, 461 P.2d
361.) In fact, the jury was instructed with CALJIC No. 6.11, relating to joint liability for statements or acts of
conspirators.FN9 It would have been **547 well within reason for the jury to attribute Danilo's statements to
Cribas.FN10
FN9. Each member of a criminal conspiracy is liable for each act and bound by each declaration of every
other member of the conspiracy if said act or said declaration is in furtherance of the object of the
conspiracy. [] The act of one conspirator pursuant to or in furtherance of the common design of the
conspiracy is the act of all conspirators. [] A member of a conspiracy is not only guilty of the particular
crime that to [his] [her] knowledge [his] [her] confederates are contemplating committing, but is also liable
for the natural and probable consequences of any act of a co-conspirator to further the object of the
conspiracy, even though such act was not intended as a part of the original plan and even though [he] [she]
was not present at the time of the commission of such act....
FN10. Notably, the jury, in its verdict on the conspiracy charge, specifically found conspiracies to commit
both sections 137, subdivision (a) and 136.1, subdivision (b). The latter section prohibits attempting to
prevent or dissuade another person who has been the victim of a crime or who is witness to a crime from
pursuing a variety of legal actions. Cribas had originally been charged with this offense but the prosecutor,
in midtrial, dismissed this count at the same time as the section 138 allegation, choosing instead to proceed
by interlineating a section 137, subdivision (a) charge. Under the circumstances, the dismissal of the section
136.1, subdivision (b) charge may have been ill-advised.
These words and Danilo's subsequent action in delivering the money lead to a reasonable inference that the
objective was to persuade Rojas and Luisa to falsify a statement to the police or in court about the rape. There was
substantial evidence to support the conviction.
P.C. 7. Words and phrases
Words used in this code in the present tense include the future as well as the present; words used in the masculine
gender include the feminine and neuter; the singular number includes the plural, and the plural the singular; the word
person includes a corporation as well as a natural person; the word county includes city and county; writing
includes printing and typewriting; oath includes affirmation or declaration; and every mode of oral statement, under
oath or affirmation, is embraced by the term testify, and every written one in the term depose; signature or
subscription includes mark, when the person cannot write, his or her name being written near it, by a person who
writes his or her own name as a witness; provided, that when a signature is made by mark it must, in order that the
same may be acknowledged or serve as the signature to any sworn statement, be witnessed by two persons who must
subscribe their own names as witnesses thereto.
The following words have in this code the signification attached to them in this section, unless otherwise apparent
from the context:
6. The word bribe signifies anything of value or advantage, present or prospective, or any promise or undertaking
to give any, asked, given, or accepted, with a corrupt intent to influence, unlawfully, the person to whom it is given,
in his or her action, vote, or opinion, in any public or official capacity.
**Intent is an essential element of bribery. People v. Werner (App. 4 Dist. 1938) 29 Cal.App.2d 126, 84 P.2d 168.
Bribery
1(1)
**Payment of money unnecessary to prove bribery. People v. Anderson (App. 2 Dist. 1925) 75 Cal.App. 365, 242 P.
906. Bribery
1(1)
**Under subd. (6) of this section, defining a bribe, a promise to give a public officer anything which may have a
future existence and value, with intent to unlawfully influence him in his official action, constitutes bribery. People
v. Vincilione (App. 1911) 17 Cal.App. 513, 120 P. 438.
**The acceptance by an officer of a gift after an official act is consummated without any prior corrupt understanding
does not constitute bribery. People v. Coffey (1911) 161 Cal. 433, 119 P. 901. Bribery
1(1)
137. Influencing testimony or information given to a law enforcement official
(a) Every person who gives or offers, or promises to give, to any witness, person about to be called as a witness, or
person about to give material information pertaining to a crime to a law enforcement official, any bribe, upon any
understanding or agreement that the testimony of such witness or information given by such person shall be thereby
influenced is guilty of a felony.
(b) Every person who attempts by force or threat of force or by the use of fraud to induce any person to give false
testimony or withhold true testimony or to give false material information pertaining to a crime to, or withhold true
material information pertaining to a crime from, a law enforcement official is guilty of a felony, punishable by
imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years.
As used in this subdivision, threat of force means a credible threat of unlawful injury to any person or damage to
the property of another which is communicated to a person for the purpose of inducing him to give false testimony
or withhold true testimony or to give false material information pertaining to a crime to, or to withhold true material
information pertaining to a crime from, a law enforcement official.
(c) Every person who knowingly induces another person to give false testimony or withhold true testimony not
privileged by law or to give false material information pertaining to a crime to, or to withhold true material
information pertaining to a crime from, a law enforcement official is guilty of a misdemeanor.
(d) At the arraignment, on a showing of cause to believe this section may be violated, the court, on motion of a party,
shall admonish the person who there is cause to believe may violate this section and shall announce the penalties and
other provisions of this section.
(e) As used in this section law enforcement official includes any district attorney, deputy district attorney, city
attorney, deputy city attorney, the Attorney General or any deputy attorney general, or any peace officer included in
Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2.
(f) The provisions of subdivision (c) shall not apply to an attorney advising a client or to a person advising a member
of his or her family.
9. Admissibility of evidence
**Evidence of accused's efforts to reimburse prosecuting witness or suppress testimony was admissible, and
evidence of third person's attempts to suppress testimony was admissible if such conduct was authorized by accused.
People v. Moore (App. 2 Dist. 1945) 70 Cal.App.2d 158, 160 P.2d 857. Criminal Law
351(8)
**Evidence that accused's cousin partially reimbursed prosecuting witness for money stolen to induce him to ease
up on his testimony was admissible, in view of evidence that prosecuting witness, accused, accused's cousin, and
another accused were talking together during trial, and that at such time the other accused gave money to
prosecuting witness. People v. Moore (App. 2 Dist. 1945) 70 Cal.App.2d 158, 160 P.2d 857. Criminal Law
351(8)
10. Sufficiency of evidence
**Evidence was insufficient to establish that defendant both intended to kill victim, a prosecution witness in another
case, and secondarily, intended to influence witness' testimony should attempt to kill him fail, as required to support
conviction for inducing or attempting to induce witness to give false or withhold true testimony, in addition to
attempted murder; defendant placed rope around victim's neck and attempted to strangle victim while defendant's
accomplice began slicing victim's chest with knife while telling victim he should have kept his mouth shut, then
expressed rage that victim was not dead when defendant and accomplice fled upon approach of automobile. People
v. Womack (App. 2 Dist. 1995) 47 Cal.Rptr.2d 76, 40 Cal.App.4th 926. Homicide
1168; Obstructing Justice
170(7)
1. Generally
**This section is primarily to prevent the corrupt interference with
the administration of justice. Its purpose is to go back as far as
necessary and say in effect that any attempt so to influence
prospective witnesses that the truth will not be presented in
anticipated litigation is felonious. People v. McAllister (1929, Cal
App) 99 Cal App 37, 277 P 1082, 1929 Cal App LEXIS 385.
**Pen C 137, making it a crime for any person who bribes a witness
or a person about to be a witness in order to influence his testimony
or who attempts by force or threat of force to induce any person to
give false testimony, is a law intended primarily to prevent the
corrupt interference of the administration of justice. It in effect
makes it a felony for any attempt to influence prospective witnesses
so that the truth will not be presented in the litigation. It is the
intent of the person interested and his purpose and design that is
decisive of that question. A person cannot be a witness unless there
is an action pending, but a person may be about to be called as a
witness even though no action is pending. The term "or person about to
be called as a witness" in the first part of the statute is used with
the legislative intent of including within its denouncement all offers
of bribes to any person in contemplation of his becoming a witness.
Such anticipation is not affected by the fact that the proceeding in
which influenced testimony is to be given or withheld has not yet been
filed. People v. Broce (1977, Cal App 2d Dist) 76 Cal App 3d 71, 142
Cal Rptr 628, 1977 Cal App LEXIS 2084.
No acceptance of an offer to bribe a witness in violation of this
section is necessary, where the offer is made upon the understanding
that the testimony of the witness will be influenced by the offered
bribe. People v. Schultz (1937, Cal App) 18 Cal App 2d 485, 64 P2d
440, 1937 Cal App LEXIS 538.
**Though "agreement" implies meeting of minds, it is not essential

that such meeting must exist as to every detail. People v. Terry
(1955) 44 Cal 2d 371, 282 P2d 19, 1955 Cal LEXIS 237.
4. Evidence
**Evidence that the defendant promised to give or offered a bribe to a
witness was sufficient, where there was direct testimony by two
witnesses that the defendant offered and promised to pay said witness
money and fine clothes, and that he stated that he would see that she
was well taken care of. People v. Schultz (1937, Cal App) 18 Cal App
2d 485, 64 P2d 440, 1937 Cal App LEXIS 538.
**Evidence at a preliminary examination failed to show a violation
of this section, and the petitioner in a habeas corpus proceeding was
entitled to discharge from custody, where the evidence consisted
solely of the testimony of an inspector of the state narcotic
division, and showed affirmatively and without conflict that neither
he nor any person connected with said division ever agreed to do
anything in return for the money the petitioner gave them, or that
there was any understanding that they would do anything, and there was
no meeting of the minds. In re Application of Jang (1938, Cal App) 25
Cal App 2d 529, 78 P2d 250, 1938 Cal App LEXIS 856, overruled on other
grounds, People v. Pic'l (1982) 31 Cal 3d 731, 183 Cal Rptr 685, 646
P2d 847, 1982 Cal LEXIS 193.
Bribe to influence testimony in violation of this section is
sufficiently shown where it appears that parties understood that
testimony would be influenced in some manner by giving of bribe.
People v. Terry (1955) 44 Cal 2d 371, 282 P2d 19, 1955 Cal LEXIS 237.
**
20
Validity, construction, and application of state statutes imposing criminal penalties for influencing,
intimidating, or tampering with witness, 8 A.L.R.4th 769 (1981) HN: 5,6,6 (P.)
People v. Anderson, 75 Cal.App. 365, 374 242 P. 906 (Cal.App. 2 Dist., Nov 28, 1925)
[6][7][8] As to the verdict finding appellants guilty of bribery, the evidence, in our opinion, is sufficient to
support it. Even conceding **901 that both Abbott and Frymier were accomplices, there is ample evidence to be
found in the record to meet the requirements of the statute providing that testimony of an accomplice must be
corroborated by other evidence tending to connect the defendant with the commission of the offense before a
conviction can be had. There may be some question, however, whether Frymier was an accomplice. The appellants
were indicted under section 68 of the Penal Code. By its terms the asking, as well as the receiving of a bribe, is
made a crime. The evidence shows that Morewood approached Frymier and proposed that, in consideration of the
payment of a certain amount of money to him, the cases against the arrested men would all be disposed of with the
payment of a nominal fine. There is no question, according to the testimony of Frymier, that Morewood asked a
bribe of him, the money thus secured to go to the appellants and others mentioned by Morewood. This was proof of
the crime of bribery, whether any money was thereafter either paid or accepted. The witness Frymier was not an
accomplice of Morewood in the commission of the crime of bribery by asking of a bribe. People v. Powell, 50 Cal.
App. 436, 443, 195 P. 456.
****
People v. Coffey, 161 Cal. 433, 452, 119 P. 901, (Cal., Dec 01, 1911)
**the money was received after the franchises were *453 granted, and it is well established that, however
atrocious in good morals the reception of a present after the act may be, the acceptance of a gift without corrupt
prior understanding is not bribery. 2 Wharton's Crim. Law (10th Ed.) 1858; State v. Ellis, 33 N. J. Law, 102, 97
Am. Dec. 707; Walsh v. People, 65 Ill. 58, 16 Am. Rep. 569.
**The scope of the definition of bribery is as broad as the duties of the officer who accepts the bribe. People v.
Markham (1883) 64 Cal. 157, 30 P. 620, 49 Am.Rep. 700. Bribery
1(1)
3. Understanding or agreement
**An essential requirement of this section is an understanding or agreement that testimony of witness shall be
influenced. People v. Terry (1955) 44 Cal.2d 371, 282 P.2d 19. Perjury
13
**
52
Falsity of contemplated testimony as condition of offense of bribery of, attempt to bribe, or
acceptance of bribe or gift by, prospective witness, 110 A.L.R. 582 (1937) HN: 4 (P.2d)
**A Code provision, in a chapter entitled "Falsifying Evidence," reading, "Every person who gives or offers, or
promises to give, to any witness, or person about to be called as a witness, any bribe upon any understanding or
agreement that the testimony of such witness shall be thereby influenced, or who attempts by any other means
fraudulently to induce any person to give **false or withhold true testimony, is guilty of a felony," which was
involved in People v. McAllister (1929) 99 Cal. App. 37, 277 P. 1082 (where the decision turned upon other points
than that of the falsity of the proposed testimony), was applied in People v. Martin (1931) 114 Cal. App. 392, 300 P.
130, upholding a conviction thereunder of bribing a witness to testify falsely; and in People v. Schultz (1937)
Cal. App. 2d , 64 P. 2d 440, upholding one for offering a witness a bribe to testify falsely.
**Under statute making bribery of witness upon understanding or agreement that testimony of witness shall be
thereby influenced a felony, essential element of offense is that bribe be given upon understanding or agreement that
testimony of witness shall be influenced. Pen.Code, 137. In re Jang, 25 Cal. App. 2d 529, 78 P.2d 250 (1st Dist.
1938).
People v. Terry, 44 Cal.2d 371, 282 P.2d 19 (Cal. Apr 22, 1955)
Example of case where influenced means to testify falsely

Defendants were convicted of giving and promissing to give a bribe to influence testimony of prospective
witnesses. The Superior Court, Los Angeles County, Harold W. Schweitzer, J., entered judgment of conviction and
an order denying motion for new trial, and one of the defendants appealed. The Supreme Court, Spence, J., held that
the evidence was sufficient to support implied findings that criminal intent originated with defendants and that
appellant had not been entrapped and that there was an agreement or understanding that witness's testimony would
be influenced by bribe.
Judgment and order affirmed.
Opinion, 278 P.2d 49, vacated.
Schauer and Carter, JJ., dissented.
[4] Perjury 297
13
297 Perjury
297I Offenses and Responsibility Therefor
297k13 k. Subornation of Perjury. Most Cited Cases
**An essential requirement of statute relating to bribery of prospective witness is an understanding or
agreement that testimony of such witness shall be thereby influenced. Pen.Code, 137.
[5] Perjury 297
33(9)
297 Perjury
297II Prosecution
297k30 Evidence
297k33(9) k. Subornation of Perjury. Most Cited Cases
In prosecution for giving and promising to give a bribe to influence testimony of prospective witness in
prosecution for violation of Alcoholic Beverage Control Act, evidence was sufficient to support implied finding that
there was an agreement or understanding between accused and arresting officer that officer's testimony would be
thereby favorably influenced. Pen.Code, 137; West's Ann.Bus. & Prof.Code, 23000 et seq., 25602.
In re Jang, 25 Cal.App.2d 529, 78 P.2d 250 (Cal.App. 1 Dist., Mar 29, 1938) (NO. CR 1998)
Disapproved in
People v. Pic'l, 31 Cal.3d 731, 646 P.2d 847, 183 Cal.Rptr. 685 (Cal., Jun 24, 1982)
[5] Obstructing Justice 282
138(1)
282 Obstructing Justice

282k134 Offenses Relating to Witnesses or Potential Witnesses
282k138 Preventing Testimony
(Formerly 282k4)
**A bilateral agreement is not a necessary element of the crime of offering a bribe to a witness to prevent his
attendance at trial; it is sufficient if the defendant offers the bribe with the intent of persuading the witness to agree
not to testify; disapproving In re Jang, 25 Cal.App.2d 529, 78 P.2d 250. West's Ann.Penal Code 136 1/2 .
8. Presumptions and burden of proof
Under 67 and 67 1/2 (renumbered 67.5), relating to the giving of bribe to executive or ministerial officers to
influence their actions as such, it is necessary to prove only that the bribe was given with the intent to influence
actions of such officers, without showing an understanding or agreement, such as is necessary under this section
relating to falsifying testimony, understanding or agreement. In re Jang (App. 1 Dist. 1938) 25 Cal.App.2d 529, 78
P.2d 250. Bribery
1(2)
52 alr 3d 1274 Criminal liability of corporation for bribery or conspiracy to bribe public official
P.C. 68. Bribes; executive or ministerial officers, employees, or appointees; asking or receiving; punishment
(a) Every executive or ministerial officer, employee, or appointee of the State of California, a county or city therein,
or a political subdivision thereof, who asks, receives, or agrees to receive, any bribe, upon any agreement or
understanding that his or her vote, opinion, or action upon any matter then pending, or that may be brought before
him or her in his or her official capacity, shall be influenced thereby, is punishable by imprisonment in the state
prison for two, three, or four years and, in cases in which no bribe has been actually received, by a restitution fine of
not less than two thousand dollars ($2,000) or not more than ten thousand dollars ($10,000) or, in cases in which a
bribe was actually received, by a restitution fine of at least the actual amount of the bribe received or two thousand
dollars ($2,000), whichever is greater, or any larger amount of not more than double the amount of any bribe
received or ten thousand dollars ($10,000), whichever is greater, and, in addition thereto, forfeits his or her office,
employment, or appointment, and is forever disqualified from holding any office, employment, or appointment, in
this state.
(b) In imposing a restitution fine pursuant to this section, the court shall consider the defendant's ability to pay the
fine.
2. Elements
**Bribery does not require that a specific official action was pending when the bribe was given, or proof that the
bribe was intended to influence any particular such act; rather, it is sufficient that the evidence reflect that there
existed subjects of potential action by the recipient, and that the bribe was given or received with the intent that
some such action be influenced. People v. Gaio (App. 2 Dist. 2000) 97 Cal.Rptr.2d 392, 81 Cal.App.4th 919, review
denied. Bribery
1(1)
4. Solicitation
**The crime described in this section, penalizing receiving a bribe is complete when officer or employee asks,
receives, or **agrees to receive, any bribe, and no action on part of victim is necessary to complete the offense.
People v. Brigham (App. 1 Dist. 1945) 72 Cal.App.2d 1, 163 P.2d 891. Bribery
1(1)
5. Agreement or understanding
**Agreement between executive officer seeking bribe and person unlawfully approached was unnecessary to
constitute offense under this section, providing for punishment of executive officer who asks bribe upon
understanding that his official action should be influenced thereby, where there is understanding on part of such
bribe seeker that his official action shall be influenced. People v. Kerns (App. 2 Dist. 1935) 9 Cal.App.2d 72, 48 P.2d
750. Bribery
1(2)
1. Generally
**A person may be guilty of asking or receiving a bribe, or of
asking and receiving a bribe; bribery may consist of either one of two
entirely different and distinct acts, namely, the act of asking a
bribe or the act of receiving a bribe. People v. Powell (1920, Cal
App) 50 Cal App 436, 195 P 456, 1920 Cal App LEXIS 19.
2. Construction
The consent of the party solicited, or a meeting of the minds for
mutual understanding or agreement between him and the party asking the
bribe, is not necessary to constitute the crime of asking a bribe
"upon any agreement or understanding" that the official conduct of the
party asking shall be influenced thereby; it is sufficient if the
party asking the bribe is ready and willing to enter into a corrupt
agreement or understanding that his official conduct shall be
influenced by the bribe. People v. Powell (1920, Cal App) 50 Cal App
436, 195 P 456, 1920 Cal App LEXIS 19.
**The offense of asking a bribe is completed the moment the bribe is
asked, it not being necessary that the person from whom the bribe is
solicited should condescend to give it, or that he should have any
agreement or understanding with the person asking. People v. Powell
(1920, Cal App) 50 Cal App 436, 195 P 456, 1920 Cal App LEXIS 19.
**Cooperation on the part of the person from whom a bribe is
solicited is not required to constitute the offense of asking a bribe.
People v. Powell (1920, Cal App) 50 Cal App 436, 195 P 456, 1920 Cal
App LEXIS 19.
**An understanding, in the sense of an agreement, with the person
unlawfully approached to give the bribe is not necessary to complete
the offense; it is sufficient merely that there be an understanding on
the part of the bribe seeker himself that his official action is to be
influenced. People v. Kerns (1935, Cal App) 9 Cal App 2d 72, 48 P2d
750, 1935 Cal App LEXIS 1250.
**This section does not include the victim as an offender and the
crime is complete when the individual described in the section "asks,
receives, or agrees to receive any bribe." No action on the part of
the victim, such as payment, delivery, or otherwise, is necessary.
People v. Brigham (1945, Cal App) 72 Cal App 2d 1, 163 P2d 891, 1945
Cal App LEXIS 969; People v. Skaggs (1947, Cal App) 80 Cal App 2d 83,
181 P2d 390, 1947 Cal App LEXIS 923.
**No "meeting of the minds" is required to establish an agreement to

take a bribe. It is not necessary that there be an understanding, in
the sense of an agreement, with the person unlawfully approached but
merely an understanding on the part of the bribe seeker himself that
his official action shall be influenced. People v. Vollmann (1946, Cal
App) 73 Cal App 2d 769, 167 P2d 545, 1946 Cal App LEXIS 905.
Express language is not required to state an offer or solicitation
of a bribe; words importing a bribe and intended to bear that meaning
are sufficient. People v. Vollmann (1946, Cal App) 73 Cal App 2d 769,
167 P2d 545, 1946 Cal App LEXIS 905; People v. Bompensiero (1956, Cal
App 4th Dist) 142 Cal App 2d 693, 299 P2d 725, 1956 Cal App LEXIS
2035; People v. King (1963, Cal App 2d Dist) 218 Cal App 2d 602, 32
Cal Rptr 479, 1963 Cal App LEXIS 1821.
5. Evidence
In a prosecution for asking and agreeing to receive a bribe, based
on a conversation on or about a designated date, the prosecution
should be permitted to introduce all evidence of the relations between
the parties, including several earlier discussions on the subject of
money, from which the inference could be drawn that the defendant
suggested or solicited the bribe or went out of his way to favor the
party from whom he hoped or expected ultimately to receive it. People
v. Vollmann (1946, Cal App) 73 Cal App 2d 769, 167 P2d 545, 1946 Cal
App LEXIS 905.
**Substantial evidence supported a conviction under Pen C 68 for
accepting a bribe because the jury could reasonably infer that
defendant's pay as a consultant was meant to influence his actions as
a commissioner and was thus a bribe as defined in Pen C 7, subd.
(6). People v. Wong (2010, 2d Dist) 186 Cal App 4th 1433, 113 Cal Rptr
3d 384, 2010 Cal App LEXIS 1228, review denied, People v. Wong
(Leland) (2010, Cal.) 2010 Cal. LEXIS 11687.
People v. Brigham, 72 Cal.App.2d 1, 6, 163 P.2d 891 (Cal.App. 2
Dist., Dec 04, 1945)
Frank Brigham was convicted of bribery in violation of Penal Code,
68, and he appeals.
Affirmed.
West Headnotes
[1] Bribery 63
1(1)
63 Bribery
63k1(1) k. In General. Most Cited Cases
**The crime described in statute penalizing receiving a bribe is
complete when officer or employee asks, receives, or agrees to
receive, any bribe, and no action on part of victim is necessary to
complete the offense. Pen.Code, 68.
67 of the Penal Code is noteworthy. The latter section reads in part

as follows, Every person who gives or offers any bribe to any
executive officer of this state, **894 with intent to influence him *
* *. **Thus, the mere offer, with the corrupt intent referred to
completes the offense.
Although section 68 includes other public employees, the analogy

remains. Section 67 is concerned with the offense of giving or
offering of a bribe to an executive officer with intent to influence
him, etc., and is complete when the gift or offer is made with
corrupt intent as therein provided. No act or intention on the part of
the executive officer is necessary to complete the offense. Only the
state of mind of the giver of the bribe is involved.
And the court stated at p. 6,
Section 68 of the Penal Code is concerned with the bribe seeking
executive or ministerial officer, employee of the state, county or
city, etc. the crime is complete when the individual described in
the section asks, receives, or agrees to receive, any bribe. No
action *7 on the part of the victim, such as payment, delivery or
otherwise, is necessary to complete the offense.
And the court stated at p. 7,
The word agree has several meanings, one of which is to promise,
another to consent, and, it is quite apparent that, in order to effect
the obvious intent of the section, such meanings must be applied.
Thus, **every executive officer who asks, receives or consents to
receive, etc., upon any promise or understanding, etc., commits the
offense contemplated by the statute. And, as pointed out in People v.
Kerns, 9 Cal.App.2d 72, at page 75, 48 P.2d 750, at page 751, It is
not necessary that there be an understanding, in the sense of an
agreement, with the person unlawfully approached, but merely an
understanding on the part of the bribe seeker himself that his
official action shall be influenced.
All consulting relationships working as a consultant for third party
during his or her employment as a public official.
People v. Wong, 186 Cal.App.4th 1433, 113 Cal.Rptr.3d 384, 10 Cal. Daily Op. Serv. 9585, 2010 Daily
Journal D.A.R. 11,675 (Cal.App. 2 Dist. Jul 28, 2010)
Background: Defendant, a former city commissioner, and director of non-profit entity, was convicted in the
Superior Court, Los Angeles County, Michael Johnson, J., of embezzling money, accepting a bribe, acting with a
conflict of interest, and committing perjury. He appealed.
Holdings: The Court of Appeal, AshmannGerst, J., held that:
(1) defendant's embezzlement conviction was not barred by the statute of limitations;
**(2) there was sufficient evidence to support defendant's bribery conviction;

(3) sufficient evidence supported defendant's conviction for acting with a conflict of interest;
**(4) defendant's omission on city's financial disclosure form of amount of money he had accepted as a bribe
supported his conviction for perjury.
[8] Bribery 63
11
63 Bribery
63k8 Evidence
**There was sufficient evidence that defendant's intent in working as a consultant for third party during his
employment as a city commissioner was corrupt, as required to support finding of bribery; intent could be inferred
from third party's agreement to pay money to defendant, third party's knowledge that while it was paying defendant,
defendant would use his public office to influence actions of officials to obtain amendment of lease agreement
between city and third party, clandestine payment of funds into defendant's offshore account, defendant's failure to
disclose his third party relationship to city officials, and cessation of payments to defendant as soon as he left public
office. West's Ann.Cal.Penal Code 68.
See 2 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Crimes Against Governmental Authority, 49; Cal. Jur.
3d, Criminal Law: Crimes Against Administration of Justice and Public Order, 533.
[10] Officers and Public Employees 283
110
283 Officers and Public Employees

283III Rights, Powers, Duties, and Liabilities
283k110 k. Duties and performance thereof in general. Most Cited Cases
**State conflict of interest statute represents the Legislature's decision to codify the common law rule
prohibiting public officials from having a personal financial interest in the contracts they form in their official
capacities. West's Ann.Cal.Gov.Code 1090.
[11] Officers and Public Employees 283
110
283 Officers and Public Employees

283III Rights, Powers, Duties, and Liabilities
283k110 k. Duties and performance thereof in general. Most Cited Cases
**State conflict of interest statute applies when a public official has a direct financial interest in a contract, and
will apply even when a public official's financial interest is indirect, unless the interest is too remote and speculative.
West's Ann.Cal.Gov.Code 1090.
U.S. v. Smith, 429 Fed.Appx. 840, 841-842, (11th Cir.(Ga.), Jun 07, 2011)
Background: Defendants were convicted by jury in the United States District Court for the Northern District of
Georgia, 0800043CRCC1, of bribery of a public official, honest services wire fraud, and money laundering.
They appealed.
Holdings: The Court of Appeals held that:

(1) witness was entitled to assert Fifth Amendment privilege against self-incrimination;
(2) evidence was sufficient for jury to convict defendants of bribery and wire fraud;
(3) civilian contracting officer with United States Army was in a high level decision-making or sensitive position
justifying 4-level enhancement to his sentence;
(4) Imposition of 210-month sentence for conviction of bribery and wire fraud was not substantively unreasonable.
Affirmed.
**1 A jury convicted Mack S. Smith and Richard E. Long of bribery of a public official, honest services wire
fraud, and money laundering. On appeal, Long and Smith assert that the district court erred in allowing a witness to
assert her Fifth Amendment privilege against self-incrimination to avoid testifying. Long also argues that his
conviction is supported by insufficient evidence and that his sentence is procedurally and substantively
unreasonable. No reversible error exists; we *842 affirm defendants' convictions and sentences.
I. BACKGROUND
Defendant Richard Long is a former civilian employee of the Army; he served as a Water and Petroleum
Program Manager from 1991 to 2004. During that time, Long reviewed contract bids and supervised contractor
performance for the Army's contracts for water purification equipment and services. Long also compiled contract
requests, which included a statement of the work the Army needed and an estimate on how much the contract should
cost.
Defendant Mack Smith owned WATEC, a civilian contractor that provided services, training, and maintenance
for water-purification systems.
Long helped WATEC win contracts by providing WATEC employees with confidential information about the
contracts and the government's pricing specifications before WATEC submitted its bid. WATEC would tailor its bid
based on that information and set its price as close as possible to the price the government was willing to pay. This
access to confidential information gave WATEC an advantage in the bidding process.
Long also frequently wrote sole-source justifications that allowed the government to award contracts to
WATEC without going through a competitive bidding process. Instead, the government awarded the contract directly
to WATEC based on Long's assertion that WATEC was the only contractor capable of performing the work.
The government awarded over $66 million in contracts to WATEC during Long's employment. During this time,
Smith or WATEC made 55 payments to Long of between $1,000 and $75,000. **The payments were routed to
accounts held by Long, his wife, or his wife's sister. The payments to Long totaled $549,700.

CA Penal Code Section 92, 93 Bribery Offering Receiving Authorities

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CA Penal Code Section 92, 93 Bribery Offering Receiving Authorities

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Bribery

110 Criminal Law

110 Criminal Law

110 Criminal Law

110 Criminal Law

110 Criminal Law

110 Criminal Law

110 Criminal Law

306 Postal Service

306 Postal Service

306k35 Use of Mails to Defraud

306 Postal Service

110 Criminal Law

91k47(5) k. Mail and wire fraud. Most Cited Cases

110 Criminal Law

110 Criminal Law

110 Criminal Law

110 Criminal Law

110 Criminal Law

favor in exchange for their providing him loans and benefits.

110 Criminal Law

help getting Anaheim Hills out of the preserve.

continuing yearly until 1981.

18 U.S.C. 1014, making false statements on a loan application

52 Banks and Banking

110 Criminal Law

testimony of a witness or information given to law enforcement.

**Though "agreement" implies meeting of minds, it is not essential

Example of case where influenced means to testify falsely

[5] Obstructing Justice 282

282 Obstructing Justice

**No "meeting of the minds" is required to establish an agreement to

67 of the Penal Code is noteworthy. The latter section reads in part

Although section 68 includes other public employees, the analogy

**(2) there was sufficient evidence to support defendant's bribery conviction;

283 Officers and Public Employees

283 Officers and Public Employees

Holdings: The Court of Appeals held that:

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