State v. Agan

• Decision Date: 26 October 1989
• Docket Number: No. 46967,46967
• Citation: 259 Ga. 541,384 S.E.2d 863
• Parties: The STATE v. AGAN et al.
• Court: Georgia Supreme Court

Page 863

384 S.E.2d 863

259 Ga. 541

The STATE v. AGAN et al.

No. 46967.

Supreme Court of Georgia.

Oct. 26, 1989.

Reconsideration Denied Nov. 9, 1989.

Robert E. Wilson, Dist. Atty., R. Stephen Roberts, Barbra B. Conroy, Asst. Dist. Attys., Decatur, Michael J. Bowers, Atty. Gen., Leonora Grant, Sp. Asst. Atty. Gen., for the State.

Jake Arbes, Atlanta, Bobby Lee Cook, Summerville, P. Bruce Kirwan, George E. Butler II, Atlanta, for Ramsey Agan et al.

Michael J. Bowers, Atty. Gen., Leonora Grant, amicus curiae.

HUNT, Justice.

We granted certiorari to the Court of Appeals in Agan v. State, 191 Ga.App. 92, 380 S.E.2d 757 (1989) to review that opinion, with emphasis upon "[t]he correct interpretation of the offering of a bribe, as prohibited by OCGA § 16-10-2(a)(1), and the acceptance of a 'campaign contribution,' as defined in OCGA § 21-5-3(6)."

The facts, more fully set forth in the Court of Appeals' opinion, are summarized as follows. Agan, the Honorary Turkish Consul in Atlanta, sought a building height variance for the construction of a hotel on his property. Agan and Sarper, an Emory University professor, had discussed with officials of the Emory Medical Clinic a plan to bring Turkish patients to the Clinic who would stay at the hotel. The Dekalb County Commission had twice rejected Agan's application for a variance. Agan submitted a third application, and spoke with two Dekalb County commissioners, Lanier and Fletcher, inquiring what Agan could do to insure the approval of his application. Agan told Fletcher he had a number of friends in the local Turkish-American Association who wished to contribute to Fletcher's campaign. At a meeting between Agan and Fletcher, Agan urged Fletcher to support the variance application, then left Fletcher with four checks totaling $3,700.00, made to Fletcher personally, and marked "for campaign contribution," despite Fletcher's protests that he did not even have a campaign bank account. The checks were drawn on the accounts of Sarper and three others who testified they were reimbursed for the checks by Agan and believed Agan wanted contributions to come from different people in order to give the impression he enjoyed broad support in the Turkish community. After another meeting between Agan and Fletcher in which Agan reiterated his need for the variance, Agan presented Fletcher with a fifth check for $800.00 marked as a campaign contribution, from a third party. Agan, accompanied by Sarper, also met with Lanier to discuss the variance. As they left Lanier's office, Sarper gave Agan an envelope at Agan's request and, back in Lanier's office, without Sarper, Agan presented Lanier with the envelope containing Sarper's check to Lanier for $3,000.00 marked "campaign contribution," despite Lanier's statement to him that he was not up for re-election for three years. The Court of Appeals, on appeal from Sarper and Agan's convictions for bribery, ordered a new trial for Agan, and vacated Sarper's conviction for insufficient evidence.

Sufficiency of the Evidence

1(a). The Court of Appeals correctly determined under the standard established by Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), that a rational trier of fact could have found the essential elements of the crime of bribery to have been established beyond a reasonable doubt in regard to Agan. There was ample evidence at trial that Agan gave payments to Lanier and Fletcher for the specific purpose of influencing their votes on his application for a building height variance, thus committing the crime of bribery. See Division 2(a) below.

1(b). We decline to review the Court of Appeals' holding that the evidence against Sarper was insufficient to support the verdict of guilty. See our Rule 30(1).

The Charge

2(a). The state contends the Court of Appeals erred in holding the trial court's charge constituted reversible error. The trial court charged the jury on the definition of the offense of bribery as set forth in OCGA § 16-10-2(a)(1), which provides that:

"[a] person commits the offense of bribery when ... [h]e gives or offers to give to any person acting for or on behalf of the state or any political subdivision thereof ... any benefit, reward, or consideration to which he is not entitled with the purpose of influencing him in the performance of any act related to the functions of his office."

The trial judge then stated to the jury that "the word 'entitled' does not have any specific or extraordinary or particular legal terminology or definition. I will charge you the word 'entitle' means to give a deed or title to." Regarding the Ethics in Government Act, OCGA § 21-5-1 et seq., the court charged:

"A campaign contribution means a gift, an advance or deposit of money or anything of value, conveyed or transferred for the purposes of influencing the nomination for election or election of any person for office.... [A] campaign contribution, as I have just defined for you, can be made directly to the candidate ... [U]nder Georgia Law campaign contributions can be made for use in future campaigns for elective office ...: [I]t is not the use to which the money may be put, but it is the purpose for which the money was paid that controls."

2 (b). The Court of Appeals found the trial court's charge faulty for failing to read the bribery statute, OCGA § 16-10-2, in conjunction with the Ethics in Government Act, OCGA § 21-5-1 et seq., which defines political contributions and sets forth the manner in which they may be received and reported. In particular, the Court of Appeals held the language of the bribery statute prohibiting the giving or offering to a public officer of a benefit to which that officer "is not entitled," is to be read very narrowly to proscribe the giving or offering to a public official of a benefit to which that officer "is not qualified or privileged to receive or has no grounds or right to seek, request, or receive." 191 Ga.App. at p. 97, 380 S.E.2d 757. [Emphasis supplied]. The Court of Appeals further held

a campaign contribution, whether made to a candidate in the heat of a campaign or to encourage or influence the official after he is elected, is something which a candidate or elected official is qualified or privileged to request or receive and thus something to which he is "entitled" within the meaning of OCGA § 16-10-2 191 Ga.App. at p. 98, 380 S.E.2d 757. We interpret this holding as meaning, in effect, that if money given to an office holder qualifies as a campaign contribution, requiring reporting under the Ethics in Government Act, OCGA § 21-5-1 et seq., then it cannot be a bribe. With this conclusion we respectfully disagree.

The Ethics in Government Act has in no manner altered the bribery statute. The Act simply defines a campaign contribution ¹ and, having defined, requires disclosure. Specifically, nothing in the Act permits a public officeholder to request or receive anything of value "to which he is not entitled with the purpose of influencing him in the performance of any act related to the functions of his office or employment...." (OCGA § 16-10-2(a)). Nor is the term "entitled," as contained in the bribery statute, modified in any way by the Ethics in Government Act. Other than those emoluments of public office that are expressly authorized and established by law, no holder of public office is entitled to request or receive--from any source, directly or indirectly--anything of value in exchange for the performance of any act related to the functions of that office. ²

As noted above, the Court of Appeals found the trial court's definition of the term "entitled" misleading because it failed to inform the jury that a public official is entitled to receive campaign contributions. Although we reverse this holding we note the trial court's charge on the meaning of "entitled," see Division 2(a) above, was somewhat inapt. However, because the more appropriate meaning of "entitled" is more restrictive than the definition given by the trial court, we view any error as helpful to the accused, and harmless.

Constitutionality of the Bribery Statute

Vagueness Challenge

3. We find no merit to Agan's contention that OCGA § 16-10-2 (a) is unconstitutionally vague, hence void. A similar contention was rejected in King v. State, 246 Ga. 386, 387-388, 271 S.E.2d 630 (1980), as follows:

Bribery is a well-known word, used widely and understood generally. Its ordinary signification may mean an " 'act of influencing the action of another by corrupt inducement.' ... [cit.]"

First Amendment Challenge

4. Agan contends the bribery statute must be interpreted as condemning only a payment to a public officer who agrees to a clearly delineated quid quo pro, i.e., an explicit purchase of an explicit official act. Were that not so, he insists, the bribery statute would be an impermissible restraint upon free speech under the First Amendment to the Constitution of the United States. He relies principally upon Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976).

In Buckley, the Supreme Court examined the application of the First Amendment to limitations upon campaign expenditures by a candidate for public office, and limitations upon amounts that might be contributed to a campaign, finding a violation of the right of free speech for the former, and none for the latter. The holdings in Buckley do not apply to the bribery statute, which places no limitation upon amounts of contributions or expenditures, but, rather, restricts the purposes for which any "benefit, reward or consideration" may be offered or given to, or solicited or accepted by, a public officer. Even assuming the First Amendment might relate to the purposes of political transfers, it cannot be understood to shield the bribing of a public officer. ³

Citizens of Georgia have every right to try to influence their public officers--through petition and protest, promises of political support and...