Hunt, Justice.
We granted certiorari to the Court of Appeals in
Agan v. State,
191 Ga. App. 92 (380 SE2d 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 twice had 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, 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 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 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 SC 2781, 61 LE2d 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.
(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.
(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. (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 is something to which he is “entitled” within the meaning of OCGA § 16-10-2. 191 Ga. App. at p. 98.
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
Free access — add to your briefcase to read the full text and ask questions with AI
Hunt, Justice.
We granted certiorari to the Court of Appeals in
Agan v. State,
191 Ga. App. 92 (380 SE2d 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 twice had 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, 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 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 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 SC 2781, 61 LE2d 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.
(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.
(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. (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 is something to which he is “entitled” within the meaning of OCGA § 16-10-2. 191 Ga. App. at p. 98.
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
and,
having defined, requires disclosure. Specifically, nothing in the Act permits a public office holder 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.
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 SE2d 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 SC 612, 46 LE2d 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.
Citizens of Georgia have every right to try to influence their public officers — through petition and protest, promises of political support and threats of political reprisal. They do
not
have, nor have they ever had, the “right” to buy the official act of a public officer. QCGA § 16-10-2 (a). Public officers are not prohibited from receiving legitimate financial aid in support of nomination or election to public office. They do
not
have, nor have they ever had, the “right” to sell the powers of their offices.* *
OCGA § 16-10-2 (b). The bribery statute does not serve to weaken free speech. It serves to strengthen free government.
The Display of Currency
5. We need not determine the propriety of the admission into evidence of currency obtained through the cashing of checks and the district attorney’s display of that currency. The error, if any, was not so harmful as to require reversal under the standard of
Johnson v. State,
238 Ga. 59, 61 (230 SE2d 869) (1976).
Selective Prosecution
6. The state contends error in the Court of Appeals’ holding that the trial court applied an incorrect standard in denying Agan and Sarper an evidentiary hearing on their selective prosecution defense. The majority held the defendants would be entitled to a hearing on their showing of “colorable entitlement” to that defense. 191 Ga. App. at 99 (5).
In support of their pre-trial motion to dismiss for selective prosecution, Agan and Sarper claimed they could not be prosecuted for
paying money to county commissioners for the purpose of influencing their vote on a pending land use application because the district attorney had not prosecuted others who have made similar payments. Their offer of proof consisted of: the names of all persons who made money transfers to the two commissioners during the years 1982 through 1987; the names of all such donors who had interests in matters pending before the county commission at the times that the money transfers were made; and, derived from a comparison of those two lists, a list of money transfers that were made to the two commissioners contemporaneously with the pendency before the county commission of applications that had been filed on behalf of such donors. The number of such transfers was 252.
The Court of Appeals held, contrary to the trial court’s holding,
that the proffer was sufficient to entitle Agan and Sarper to an evidentiary hearing.
We agree. We have stated the rule as to selective prosecution in the following terms:
The party seeking to prove unconstitutionally discriminatory enforcement of the law under Yick Wo [v. Hopkins, 118 U. S. 356 (6 SC 1064, 30 LEd 220) (1886)] has the burden of presenting sufficient evidence to establish the existence of intentional or purposeful discrimination which is deliberately based upon an unjustifiable standard, such as race, religion, or other arbitrary classifications.
State v. Causey,
246 Ga. 735, 737 (273 SE2d 6) (1980).
The proffer here included details of money transfers that were similar to those for which Agan and Sarper were prosecuted, and identified sources of reliable and available evidence, i.e., permanent public records, and
names of witnesses who are disinterested in this prosecution. Because the proffer demonstrated a reasonable likelihood that Agan and Sarper might be able to prevail in their contention of selective prosecution under the rule in
Causey,
they should have been given the opportunity to submit their proofs.
Although this issue is now moot as to Sarper (see Division 1 (b), supra) Agan is entitled to a hearing on his claim of selective prosecution.
We point out, however, that a proffer strong enough to merit an evidentiary hearing does not, of necessity, equate to proof of selective prosecution. Under the rule of
Causey,
the fact that only one person is prosecuted for doing what many others do is no warrant, in itself, for relief.
Agan has the burden of proving by the weight of the evidence that his prosecution represents an “intentional or purposeful discrimination which is deliberately based upon an unjustifiable standard, such as race, religion, or other arbitrary classification.”*
This he must establish, if he can, by proving the averments of thé proffer relative to other money transfers,
and by showing, through the testimony of the district attorney or otherwise, the extent of any other investigations or prosecutions of donors who are situated similarly.
If, notwithstanding the disclosure to the district attorney of the proffer materials, it should appear that he has conducted little or no investigation into apparently similar offenses, or has initiated no prosecutions of any such offenses, only then would it be incumbent upon the district attorney to demonstrate that the prosecution of Agan is something other than selective prosecution.
Depending upon the evidence, the trial judge as trier of fact might find that similar offenses have gone uninvestigated or unprosecuted; that the district attorney knew or should have known of such
offenses; and that failure to act is without a reasonable and responsible explanation.
Based on such a finding, the trier of fact might conclude that the circumstances support an inference of the existence of “intentional or purposeful discrimination” based upon an “unjustifiable standard” of an “arbitrary classification” — that is, an arbitrary classification whereby
only
Agan continues to be prosecuted, and all the rest go free. Such a conclusion would equate to selective prosecution.
Decided October 26, 1989
Reconsideration denied November 9, 1989.
Robert E. Wilson, District Attorney, R. Stephen Roberts, Barbara B. Conroy, Assistant District Attorneys,
for appellant.
Jake Arbes, Bobby Lee Cook, P. Bruce Kirwan, George E. Butler II,
for appellees.
Michael J. Bówers, Attorney General, Leonora Grant,
amicus curiae.
Accordingly, and notwithstanding the reinstatement of Agan’s conviction for want of reversible error during the trial, the case is remanded to the trial court with direction that an evidentiary hearing be accorded to Agan on his proffer. If he should succeed in establishing that his prosecution is “selective prosecution” under the principles we have outlined, his conviction must be vacated. Failing that, his conviction will stand.
7. We have reviewed the remaining contentions on appeal and find no error.
Judgment affirmed in part, reversed in part, and remanded.
All the Justices concur.