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
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).
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) (I), 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:
(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 1
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. 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
3. We find no merit to Agan's contention that OCGA 16-10-2
encing the nomination for election or election of any person for the offices provided for in section 2." [Ga. L. 1974, p. 155.]
The following year, the act was amended to provide:
" 'Contribution' means a gift, subscription, loan, forgiveness of debt, advance or deposit of money or anything of value conveyed or transferred for the purpose of influencing the nomination for election or election of any person for the offices provided for in section 2, but the term specifically shall not include the value of personal services performed by persons who serve without compensation from any source and on a voluntary basis. 'Contribution' shall include retained fees, fees or any other form of payment made to candidates for office or who hold office when such fees and compensation made can be reasonably construed as a campaign contribution designed to encourage or influence the candidate or office holder to introduce legislation which enriches the person, company, corporation or other entity which made the contribution. Introduction of such enriching legislation by the candidate subsequent to his election to office shall be prima facie evidence that the fee, compensation or retainer fee was a campaign contribution under the meaning of this Act." Ga. L. 1975, pp. 1122-23.
The Ethics in Government Act carried forward the substance of this definition, but removed the words that restricted the term "influence" to influencing the introduction of enriching legislation. we view this not as an attempt to restrict the definition of a bribe, but as a manner of enlarging the definition of a contribution so as to insure the reporting of most all transfers to the candidate or office holder.
(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).
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. OCGA 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. 4
(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
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
loose campaign finance laws. 'In Texas, it's almost impossible to bribe a public official as long as you report it. . . .' "
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. 5
The Court of Appeals held, contrary to the trial court's holding, 6
that the proffer was sufficient to entitle Agan and Sarper to an evidentiary hearing. 7
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). 8
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. 9
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. 10
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." 11
This he must establish, if he can, by proving the averments of the proffer relative to other money transfers, 12
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. 13
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. 14
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.
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.
Michael J. Bowers, Attorney General, Leonora Grant, amicus curiae.