United States v. Mark Alfisi

308 F.3d 144, 2002 U.S. App. LEXIS 21082, 2002 WL 31245977

• Court: Court of Appeals for the Second Circuit
• Decided: October 8, 2002
• Docket: Docket 01-1152
• Status: Published

Opinions

Judge SACK dissents in a separate opinion.

WINTER, Circuit Judge.

Mark Alfisi appeals from a conviction by a jury before Judge Hellerstein on counts of: (i) bribery of a public official in violation of 18 U.S.C. § 201(b)(1)(A); (ii) paying an unlawful gratuity to a public official in violation of 18 U.S.C. § 201(c)(1)(A); and (iii) engaging in a conspiracy to commit bribery in violation of 18 U.S.C. § 371.

The charges against Alfisi arose out of payments he made to a United States Department of Agriculture (“USDA”) produce inspector at the Hunts Point Terminal Market. On appeal, Alfisi contends principally that the district court’s jury instructions failed to delineate accurately the difference between the crime of bribery, which includes a quid pro quo element, and that of paying unlawful gratuities, which does not. He also claims that the instructions erroneously allowed the jury to convict him of bribery even though his payments were intended only to procure lawful action from a government official. Alfisi further argues that the jury should not have been allowed to consider the payment of an unlawful gratuity as a lesser-included offense of bribery. Alternatively, he claims that, if the payment of an unlawful gratuity was properly charged as a lesser offense, then the misdemeanor of unlawfully supplementing a federal employee’s salary should also have been submitted as a lesser offense to the jury. Finally, Alfisi contends that the district court violated his Sixth Amendment right to present a defense when it interrupted and cut short his counsel’s closing summation.

We reject these arguments and affirm.

BACKGROUND

We view the facts in the light most favorable to the government. See Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942) (noting that a criminal verdict “must be sustained if there is substantial evidence, taking the view most favorable to the government, to support it”) (superseded by statute on other grounds); see also United States v. Zichettello, 208 F.3d 72, 81 (2d Cir.2000).

This appeal involves purchases and sales of fresh produce at the Hunts Point Terminal Market, the world’s largest wholesale produce market. Growers ship their produce to the Hunts Point Market where it is sold to wholesalers. The sales are consummated through purchase contracts negotiated between wholesalers and commercial brokers who act as agents for the growers. Generally, purchase contracts set a price and stipulate a particular required quality of the produce, stated by grade levels, to be met at the time of delivery. The grade level of a load of produce substantially affects the ultimate sale price, and even a slight lowering of grade can result in a sizeable drop in the value of produce. Also, if a load of produce does not meet the contractually stipulated grade level upon delivery, the price of the produce must be renegotiated downward by the parties to reflect this change.

There are two sets of widely-used standards for measuring the grade level of produce. One set is promulgated by the USDA and rates produce according to “quality” and “condition.” In this context, “quality” refers to inherent defects, such as the size or shape of the produce, that are constant over time. “Condition” refers to defects, such as decay, discoloration, or bruising, that may worsen with aging. Under the USDA standards, the grade level of a load of produce is determined by the frequency, marked as a percentage, of “quality” and “condition” defects detected in the load.

The alternative set of standards is known as the “good delivery” standards and uses the same frequency-of-defects measure as the USDA standards to determine the grade level of a load of produce. The “good delivery” standards, however, are considered more lenient than the USDA standards because they discount for the almost inevitable deterioration that a load of produce will suffer while being shipped.

If commercial brokers and wholesalers disagree as to the grade level of a load of produce, they have the option of requesting an inspection by the USDA’s Agricultural Marketing Service for a nominal fee. When they opt for such an inspection, a USDA produce inspector will examine random samples from the disputed load of produce to determine the frequency of “quality” and “condition” defects among the produce. The inspector will then record the percentage of defects on an official USDA inspection certificate. A USDA inspection certifies the grade level of a load of produce according to only the USDA’s standards; it does not apply the unofficial “good delivery” standards. However, parties to contracts using “good delivery” standards rely on the percentage of defects indicated on the USDA inspection certificate to determine whether a load of produce meets the requirements of the particular contract.

At some point, federal officials undertook an investigation of corruption among USDA inspectors at the Hunt’s Point Terminal Market. One such inspector, William Cashin, was arrested and thereafter cooperated in the investigation. Cashin and other USDA officials had routinely accepted money from wholesalers at the Hunts Point Market since about 1980. In the course of the scheme, an inspector would receive $50 in cash per inspection from wholesalers. That inspector would kick back a portion of this payoff to his or her supervisor as payment for receiving profitable assignments, i.e., assignments to bribing wholesalers. According to Cashin, the payoffs from the wholesalers were in exchange for downgrading the grade level of a load of produce by recording a higher percentage of defects than were actually observed. When applied to the unofficial “good delivery” standards, a false downgrade allowed the wholesalers to renegotiate downward the price of a load of produce.

As part of Cashin’s cooperation with the government, he continued his work as a USDA inspector while also serving as an undercover agent. Cashin was assigned by his supervisor to the produce wholesaler Post & Taback. Alfisi was employed by Post & Taback, and Cashin’s supervisor informed Cashin that Alfisi was prepared to make payoffs. After Cashin contacted Alfisi, Alfisi agreed to pay Cashin $50 in cash per inspection performed for the firm. Cashin and Alfisi also devised code phrases by which Alfisi was able to alert Cashin when Alfisi needed “help” with a load of produce. Cashin testified that in exchange for the $50 payments, he would falsely downgrade loads of produce except where they were already “legitimately bad.” Many of Cashin’s discussions with Alfisi were videotaped and audiotaped. On these recordings, Alfisi gave Cashin money and discussed Cashin’s inspection of produce. As a result, Alfisi was arrested and charged with various counts of bribery, paying unlawful gratuities, and conspiracy.

The recordings, as well as Cashin’s testimony, were introduced as government evidence at Alfisi’s trial. Alfisi did not testify but did present evidence in support of his defense that he did not make the payoffs to obtain false inspection results. Rather, he argued that Cashin and other USDA officials at the market were operating an extortion scheme and that Alfisi was coerced into paying Cashin solely to ensure that Cashin would do his job properly. In that regard, Alfisi offered evidence from three produce brokers that some of Cashin’s inspections yielded accurate grade levels. Cashin could not specify at trial whether particular certifications that caused specific loads of produce to fail “good delivery” standards had been falsely downgraded or were “legitimately bad.”

After six days of trial and four days of deliberation, the jury convicted Alfisi of seven counts of bribery, six counts of paying unlawful gratuities as a lesser-included offense to bribery, and one count of conspiracy to commit bribery. The district court sentenced Alfisi to a prison term of a year and a day, two years of supervised release, and a fine of $6,000.

DISCUSSION

a) The Instructions on Bribery and Payment of Unlawful Gratuities

As noted, Alfisi’s principal defense at trial was that he was coerced into paying Cashin solely to get the latter to perform accurate inspections. The jury was instructed as to Alfisi’s economic coercion defense but rejected it. No claim of error is made as to that instruction, and Alfisi’s principal argument on appeal is that the jury was erroneously instructed on the elements of bribery and paying unlawful gratuities.

As we understand Alfisi’s argument, he claims first that the instruction given by the district court failed to explain sufficiently the difference between bribery, which requires a quid pro quo element, and paying unlawful gratuities, which does not. Second, he argues that the instruction erroneously allowed the jury to convict him for bribery even if the jury found that the payments were a quid pro quo exchange for Cashin to perform his job faithfully.

“Jury charges are reviewed de novo,” United States v. Han, 230 F.3d 560, 565 (2d Cir.2000), and we will not find reversible error unless a charge either failed to inform the jury adequately of the law or misled the jury as to the correct legal rule. See United States v. Doyle, 130 (2d Cir.1997). We are satisfied that the district court’s jury instructions, viewed in their entirety, were correct.

We begin by examining the pertinent elements of bribery and paying unlawful gratuities. The bribery provision, 18 U.S.C. § 201(b)(1)(A), renders it unlawful for any person to “directly or indirectly, corruptly give[ ], offer[ ] or promise[ ] anything of value to any public official ... with intent ... to influence any official act.” The payment of an unlawful gratuity involves an act where a person “directly or indirectly gives, offers, or promises anything of value to any public official ... for or because of any official act performed or to be performed.” 18 U.S.C. § 201(c)(1)(A). Bribery therefore requires that the payor intend “to influence” an official act “corruptly” while the payment of an unlawful gratuity requires only that the payment be “for or because of’ an official act. See United States v. Sun-Diamond Growers of California, 526 U.S. 398, 404, 119 S.Ct. 1402, 143 L.Ed.2d 576 (1999); United States v. Crozier, 987 F.2d 893, 899 (2d Cir.1993); see also United States v. Biaggi, 909 F.2d 662, 684 (2d Cir.1990).

The “corrupt” intent necessary to a bribery conviction is in the nature of a quid pro quo requirement; that is, there must be “a specific intent to give ... something of value in exchange for an official act.” Sun-Diamond Growers, 526 U.S. at 404-05, 119 S.Ct. 1402 (emphasis in original). Putting it only slightly differently, bribery involves the giving of value to procure a specific official action from a public official. See United States v. Myers, 692 F.2d 823, 841 (2d Cir.1982). The element of a quid pro quo or a direct exchange is absent from the offense of paying an unlawful gratuity. To commit that offense, it is enough that the payment be a reward for a past official act or made in the hope of obtaining general good will in the payee’s performance of official acts off in the future. See Sun-Diamond Growers, 526 U.S. at 405, 119 S.Ct. 1402; Biaggi, 909 F.2d at 684-85; Myers, 692 F.2d at 841.

Turning to the instructions in the present case, the district court initially informed the jury that Alfisi could be convicted of bribery if the government proved beyond a reasonable doubt that he paid money “wilfully, corruptly and with intent to influence an official act to be performed by Inspector Cashin.” In defining “corruptly,” the district court stated that the term entailed a “specific intent to influence Inspector Cashin’s official acts of performing inspections and certifying the condition and grade of fruits and vegetables.” The payment of an unlawful gratuity was described as the giving of money “for or because of official acts performed or to be performed by William Cashin.” More specifically, the district court told the jury that to prove the payment of an unlawful gratuity, the government must show a link between the payment and some official act, but not corrupt intent as earlier defined.

As we understand the first aspect of Alfisi’s argument, he believes that these instructions were not sufficiently specific as to the quid pro quo element of bribery to spell out adequately the difference between that crime and paying unlawful gratuities. In that regard, it is significant that the district court’s explanation of bribery and paying unlawful gratuities virtually mirrors the statutory language contained in 18 U.S.C. §§ 201(b)(1)(A), 201(c)(1)(A) and used by many courts to distinguish the two crimes. See, e.g., Sun-Diamond Growers, 526 U.S. at 404-05, 119 S.Ct. 1402; Myers, 692 F.2d at 841; see also United States v. Bonito, 57 F.3d 167, (2d Cir.1995). Where a district court’s jury instructions accurately track the language and meaning of the relevant statute, we generally will not find error. See id. However,'we need not affirm here on the court’s initial instructions, because the court later erased all doubt as to the need for proof of a quid pro quo arrangement to convict Alfisi of bribery.

The jury evidently found the instructions somewhat ambiguous with regard to the difference between bribery and paying unlawful gratuities and asked the court for clarification. In response, the court described bribery as the giving of money to a public official “for or because of an official act [and] with a corrupt intention specifically to influence the outcome of the official act.” This instruction clearly set out the quid pro quo requirement, and, accordingly, any ambiguity in the original jury instructions was cured. The events here suggest that it might be well to add similar language in the future for such jury instructions.

Alfisi also argues that he should not be found guilty of bribery if he paid money to Cashin solely to induce him to perform his job faithfully. Put another way, Alfisi contends that the term “corruptly” requires evidence of an intent to procure a violation of the public official’s duty. For this reason, he contends, it was not “corrupt” for him to give Cashin money to ensure that Cashin inspect and report accurately on the produce because that was Cashin’s legal duty. We are not persuaded.¹

First, Alfisi’s suggested reading of the bribery statute does not rest comfortably within the statutory language. Subsection (b)(1)(A), the basis for Alfisi’s bribery convictions, outlaws payments made with a corrupt intent — to procure a quid pro quo agreement — “to influence any official act.”² It cannot be seriously argued that Alfisi’s payments did not fall within that broad language, even if he was paying Cashin solely to make accurate inspections.³

Second, there is no lack of sound legislative purpose in defining bribery to include payments in exchange for an act to which the payor is legally entitled. On the one hand, there is of course a danger of overin-clusion in a broad definition, in particular the risk here that marginally culpable conduct by those facing insistent extortionists will be criminalized. That danger is eliminated or at least minimalized, however, by the existence of the economic coercion defense, which the jury rejected in the present case.

On the other hand, a danger of underin-clusion inheres in the narrow definition suggested by Alfisi. This is particularly so in cases where the official duties require the exercise of some judgment or discretion. In such cases, if the government must prove beyond a reasonable doubt actual or intended violations of official duties, many highly culpable payments would go underpunished as unlawful gratuities, or unpunished altogether.⁴

For example, if a party to litigation were to pay a judge money in exchange for a favorable decision, that conduct would — and should — constitute bribery, even if a trier of fact might conclude ex post that the judgment was on the merits legally proper. This principle was at stake and upheld in a decision arising from the most lamentable episode in this court’s history. See United States v. Manton, 107 F.2d 834, 845-46 (2d Cir.1939) (rejecting Chief Circuit Judge’s defense that payments in exchange for particular decisions were not obstruction of justice where decisions rendered were legally correct). In such a case, the key element of the offense is the intent of the payor to purchase a particular decision “without regard to the merits,” id. at 846, as opposed to an impartial judgment.⁵ The legal merits, or lack thereof, of the judgment rendered is not an element of the offense. See Sun-Diamond Growers, 526 U.S. at 404-05, 119 S.Ct. 1402.

b) Other Issues

Alfisi’s other arguments are also meritless. First, he contends that the district court should not have allowed the jury to consider the unlawful gratuity theory as a lesser-included offense of bribery. This view is contrary to our well-established law. See, e.g., United States v. Lasanta, 978 F.2d 1300, 1309 (2d Cir.1992), overruled on other grounds by Florida v. White, 526 U.S. 559, 119 S.Ct. 1555, 143 L.Ed.2d 748 (1999); United States v. Zacher, 586 F.2d 912, 915 (2d Cir.1978). Paying an unlawful gratuity is a subset of bribery that does not include the element of a specific quid quo pro intent. See Sun-Diamond Growers, 526 U.S. at 404, 119 S.Ct. 1402. The district court therefore did not err in allowing the jury to consider the payment of an unlawful gratuity as a lesser-included offense of bribery.⁶

Alfisi argues, alternatively, that the district court should have permitted the jury to consider also as a lesser offense the misdemeanor of supplementing the salary of an official of the United States under 18 U.S.C. § 209. We disagree. Under Section 209, the illegal payment must be in the nature of a “salary” or “contribution to or supplementation of salary” and “for services as an employee of the United States.” In United States v. Rabom, 575 F.2d 688, 691 (9th Cir.1978) the Ninth Circuit held that Section 209 was not a lesser-included offense of Section 201(c), the unlawful gratuities provision, because the “salary” element of Section 209 is not an element of a violation of Section 201. Id. at 691-92. We are less certain than the court in Rabom that a violation of Section 209 cannot be a lesser included offense of the crimes set out in Section 201. For example, some payments labeled by a payor as salaries might reasonably be charged as bribes, leaving a trier of fact to determine whether they were bribes, the lesser offense of unlawful gratuities, or the even lesser offense of illegal supplementations to salary.

Juries must be instructed as to lesser-included offenses either when one simply cannot commit the greater crime without committing the lesser or when the evidence is such as to permit a finding that the lesser, but not the greater, offense had been committed. See Campaneria v. Reid, 891 F.2d 1014, 1022 (2d Cir.1989). When the greater crime can be committed without committing the lesser and when the evidence would support a conviction for the former but not the latter, the lesser-included offense should not go to the jury. That is the circumstance here.

As we read Section 209, the payments in question must bear some or most of the objective indicia of salaries, e.g., being so recorded in business records and so treated for tax purposes by the payor. When accompanied by the requisite corrupt intent, such payments might violate Section 201. However, where the payments bear none of the indicia of salary but are made with the requisite corrupt intent, they violate Section 201 but not Section 209. A violation of Section 201 is not, therefore, inevitably a violation of Section 209. In the present case, moreover, there is no evidence that Alfisi or Post & Taback ever treated the payments to Cashin as salary. All of the evidence indicates that they were in cash and off-book. Even if Section 209 can be a lesser-included offense of Section 201 violations in some cases, therefore, the jury here should not have been instructed on Section 209.

Finally, Alfisi argues that the district court violated his right to present a defense under the Sixth Amendment when it interrupted counsel’s closing summation as he was about to state that Alfisi was not guilty of the lesser offense of paying unlawful gratuities. We again disagree. Al-fisi was in fact not limited in making any argument to the jury. The court’s interruption was prompted by defense counsel’s telling the jury that he was raising the unlawful gratuities issue at that time because he would not be allowed to speak after the government’s rebuttal summation. In interrupting, the court merely noted that the government had not addressed the unlawful gratuities issue in its main summation, as implied by defense counsel’s remarks themselves, and elicited from the prosecutor a concession that he would not argue it in rebuttal. The district court then offered Alfisi’s counsel an opportunity to finish his closing remarks with what he initially intended to say. Al-fisi’s counsel, in response, declined this opportunity. Counsel was not, therefore, prevented from making argument on the point.

CONCLUSION

For the reasons indicated above, we affirm.

1 . The dissent argues that the statute's use of "corruptly” precludes a conviction for bribery if the defendant paid a public official only for the performance of a legal duty. In that regard, it relies upon United States v. Barash, 365 F.2d 395 (2d Cir.1966) ("Barash I"), which stated that, "if a government officer threatens serious economic loss unless paid for giving a citizen his due, the latter is entitled to have the jury consider this ... as bearing on the specific intent required for the commission of bribery.” Id. at 401-02. However, Barash I does not state that the existence of economic coercion negates a "corrupt” intent. Instead, it recognizes more generally that economic coercion is relevant to the culpability of the intent of a defendant charged with bribery. Barash I does not limit the kinds of quid pro quo exchanges that qualify as bribery.

Moreover, our ruling in the present matter is based on precedent subsequent to Barash I. In United States v. Kahn, 472 F.2d 272 (2d Cir.1973), we upheld a jury charge that treated the issue of economic coercion separately from the object of bribery, i.e., what is sought by the payor. Id. at 279. The district court's instructions in this case closely match those addressed in Kahn, where the jury was told that bribery required the intent to influence a "public officer with respect to any official act." Id. (emphasis in original). We simply adhere to that precedent. As a policy matter, the dissent’s position ignores Kahn’s concern that "[t]he proper response to coercion by corrupt public officials should be to go to the authorities, not to make the payoff.” Id. at 278.

Finally, we emphasize that Alfisi requested and received instructions to the jury regarding an economic coercion defense.’ However, he failed to convince the jury. Thereafter, he was convicted of bribery for his quid pro quo arrangement with Cashin. This outcome is entirely consistent with our holding in United States v. Barash, 412 F.2d 26 (2d Cir.1969) ("Barash II"), a case addressing an appeal from the second trial mandated by Barash I. Barash II makes it clear that economic coercion is not an issue derived from the term "corruptly” in the statute but is instead a defense for which separate instructions are to be given. Id. at 29-30. Once the defense of economic coercion has been rejected, a defendant may properly be convicted for paying bribes to a public official for any kind of a quid pro quo exchange. See Kahn, 472 F.2d at 279.

2 . The dissent argues that defining "corruptly” to include the intent to engage in a quid pro quo exchange renders the term surplusage because the quid pro quo element is established in the statutory language “with intent ... to influence any official act....” 18 U.S.C. § 201(b)(1)(A). However, that language, standing alone, can just as easily describe the motivation for paying an unlawful gratuity, e.g., with the hope of buying general goodwill that "influences” an official's future act. Therefore, far from being a surplusage, the term "corruptly" distinguishes between the nature of the influence sought by a person who commits bribery and another who pays an unlawful gratuity. Wé believe this view sustained by the comparison of bribery and unlawful gratuity in Sun-Diamond, 526 U.S. at 404-05, 119 S.Ct. 1402.

3 . Section (b)(1)(C) outlaws payments with the same corrupt intent "to induce [a] public official ... to do or omit to do any act in violation of the lawful duty of such official or person.” Subsections (A) and (C) undoubtedly overlap in some considerable measure, although resort to (A) seems most appropriate in the case of bribes regarding decisions involving the exercise of judgment or discretion, such as judicial decisions or produce inspections, while use of (C) would be most appropriate in the case of bribes to induce actions that directly violate a specific duly, such as a prison guard’s duty to prevent the smuggling of contraband.

4 .We do not agree that Sun-Diamond requires us to define the crime of bribery narrowly. The dissent selectively quotes from text spanning multiple paragraphs on four pages of that opinion and omits important distinguishing details. As we understand Sun-Diamond, the offense of paying unlawful gratuity should not be broadly construed because there are other laws and regulations specifically dealing with the problem of public officials receiving unlawful gratuities. 526 U.S. at 409-12, 119 S.Ct. 1402. Sun-Diamond, however, says nothing about bribery, especially with regard to how the term "corruptly” should be interpreted.

5 . The dissent’s response to our analysis here supports our conclusion. The dissent states that paying a judge for a favorable, albeit legally proper, decision would nonetheless constitute bribery because the judge would be deciding the case based on the identities of the parties rather than the merits of the case. However, precisely the same description applies to Alfisi's payments to Cashin. Even if Alfisi merely paid Cashin to perform a proper and honest inspection, Cashin would nonetheless be improperly carrying out his function according to the identities of the parties.

6 . The dissent contends that paying an unlawful gratuity cannot be a lesser included offense of bribery because each offense contains elements that are not necessarily included in the other. We disagree for several reasons. First, if the dissent’s view were adopted, a variety of established precedents would be disturbed. For example, in Rutledge v. United States, the Supreme Court held that conspiracy under 21 U.S.C. § 846 is a lesser included offense to a Continuing Criminal Enterprise ("CCE”) under 21 U.S.C. § 848. Rutledge, 517 U.S. 292, 300, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996). It reached that result because Section 848 has an "in concert” element that is the equivalent of a conspiratorial agreement and carries a heavier penalty than Section 846. Id. Section 846 can be violated, however, by a person acting alone, i.e., it applies to "[a]ny person who attempts or conspires to commit any offense defined in this subchapter....” 21 U.S.C. § 846 (emphasis added). While one can violate Section 846 without violating Section 848 under the "attempt" prong of Section 846, a violation of the "conspires” portion of Section 846 is nevertheless a lesser included offense of Section 848.

In this regard, the relationship of paying an illegal gratuity to paying a bribe is not materially different from the relationship of conspiracy to a CCE offense, and the inclusion of possible or alternative elements in the crime of paying an illegal gratuity does not preclude it from being a lesser included offense to bribery. To hold otherwise would necessarily contradict Rutledge and a number of other cases in which we have found a lesser included offense notwithstanding the existence of possible or alternative, and non-mandatory, elements in the lesser offense not contained in the greater offense. See, e.g., United States v. Giampino, 680 F.2d 898, 901-02 (2d Cir.1982); United States v. Rosenthal, 454 F.2d 1252, 1255 (2d Cir.1972).

The dissent's view also runs counter to common sense and imposes an unnecessary and formalistic requirement on how Congress drafts criminal statutes. With regard to statutes that criminalize various acts in the disjunctive, Congress could have divided the various alternative elements into several discreet and independent sections. For example, 18 U.S.C. § 201 could have been separated into sections instead of subsections for payment to a former public official, for payment to a current public official, etc. Had Congress done so, there would be no doubt whatsoever that some crimes among those separate sections for paying an illegal gratuity would qualify as lesser included offenses of bribery. However, the dissent’s theory would force us to read 18 U.S.C. § 201 differently because Congress opted to draft the statute as a singular but disjunctive whole, rather than as separate sections. Ascribing weight to “so formal a difference” in Congress’ drafting is a practice that the Supreme Court has expressly rejected. Whalen v. United States, 445 U.S. 684, 694, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980).

Finally, it seems to us that the dissent's position potentially expands the exposure of a defendant such as Alfisi to multiple convictions for the same act. Under the current law of double jeopardy, where one charge is a lesser included offense of the other, "the Double Jeopardy Clause prohibits prosecution of a defendant for a greater offense when he has already been tried and acquitted or convicted on the lesser included offense.” Ohio v. Johnson, 467 U.S. 493, 501, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984). Were we to define a lesser included offense as proposed by the dissent, therefore, a defendant such as Alfisi could be charged and convicted of both bribery and paying an unlawful gratuity as separate offenses not subject to the bar against cumulative punishments for convictions on the same offense. See id. at 500, 104 S.Ct. 2536.