Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 76 CR 353 - John F. Grady, Judge.
Before Swygert and Cummings, Circuit Judges, and Markey, Chief Judge.*fn*
The jury found Arroyo and Sanchez guilty of conspiracy to corruptly solicit a bribe in violation of 18 U.S.C. § 371 (1976) and Arroyo guilty of the substantive offense the acts of corruptly soliciting and receiving the bribe in violation of 18 U.S.C. § 201(c)(1) (1976).*fn1 Motions for acquittal and a requested instruction were based on the view that § 201(c)(1) must be limited to soliciting a bribe before the accused public official has performed the "official act"*fn2 intended to be influenced. The district court denied the motions and refused the request.*fn3 We affirm.
In May of 1975, complaining witness Orlando Fernandez Galindo (Fernandez), a native of Cuba who came to this country in 1968, applied for a United States Small Business Administration (SBA) guaranteed loan. Fernandez went first to the Chicago Economic Development Corporation (CEDCO), funded in part by the federal Model Cities Program and functioning to assist small businessmen in obtaining SBA guaranteed loans through local banks. CEDCO prepared a loan package for Fernandez and submitted it to the First National Bank of Chicago, which then applied to SBA for a 90% Guarantee. The loan was an economic opportunity loan a special type for economically disadvantaged individuals.
On August 19, 1975, Arroyo a loan officer with SBA*fn4 received the Fernandez application, for review of its credit worthiness and presentation to his supervisor, who relied upon Arroyo's recommendations in determining whether an applicant should receive a guaranteed loan. The loan received SBA authorization on August 26, 1975, but Fernandez was not told of that until later.
On August 27, 1975, Fernandez went to see Sanchez, a business counselor at CEDCO, who told Fernandez the bank had approved the loan, but that there would be no money until SBA authorization was received. Sanchez said the only person who could help Fernandez was Arroyo, and arranged for Fernandez to dine with Arroyo the next day.
On August 28, 1975, Fernandez went to CEDCO to meet Arroyo. Sanchez told Fernandez to pick up Arroyo at his home, giving him the address. Fernandez picked up Arroyo and Arroyo's son, and the three dined at a restaurant. Arroyo and Fernandez discussed the loan application. When Fernandez asked about the delay, Arroyo repeated several times that Fernandez "did not have any problems" because "he (Arroyo) had it (the loan application)." When Fernandez asked if it would cost him anything, Arroyo told him to see Sanchez the next day.
On August 29, 1975, Fernandez went to CEDCO and related to Sanchez the previous night's conversation. When Sanchez asked Fernandez the amount of the loan, Fernandez replied $35,000." When Fernandez asked how much it would cost, Sanchez said "some of the people had paid different amounts." Sanchez then mentioned to Fernandez "a different amount."
About two or three days later (i. e., on August 31 or September 1), the bank told Fernandez that the SBA had authorized only $5,000. Prior to Christmas, 1975, Fernandez met Sanchez at CEDCO, and Sanchez asked him if he had paid Arroyo $800. When Fernandez replied that he had not because of problems in getting the loan proceeds, Sanchez indicated that things would be "convenient or better" if Fernandez paid the $800.
SBA records indicated a January 8, 1976, disbursement of $20,000 and a February 10, 1976, disbursement of $10,000 to Fernandez.
On March 15, 1976, Fernandez returned from a trip to Puerto Rico and spoke with Sanchez, who told him Arroyo wanted to speak with him about "the money" and to collect "the eight." Immediately thereafter, Arroyo called Fernandez and said he was going to stop by the next day about 5:00 p.m., "to pick up the money." Fernandez reported the situation to the Federal Bureau of Investigation (FBI).
On March 16, 1976, FBI agents installed sound recording equipment at Fernandez' place of business, gave Fernandez $500 in marked bills, and waited for Arroyo. About five minutes before Arroyo arrived, Sanchez called Fernandez and said Arroyo was on his way. Arroyo arrived between 5:00 p. m. and 5:30 p. m. Before Fernandez gave Arroyo the $500, a conversation occurred:
"Fernandez: How much do I have to give you?
Arroyo: Well, whatever you told me.
Fernandez: How much was that?
Acknowledging that $800 was the agreed figure, Fernandez said he could pay only $500 because of business problems and this discussion ensued:
"Fernandez: I have had a million problems here. Well, you know how it is. It is so bad, that you are going to have, you're going to have to approve another loan of 35,000 pesos for me.
Fernandez: How much does people pay up to for ...