United States of America, Plaintiff-appellee, v. Ove B. Kongsted, Defendant-appellant.united States of America, Plaintiff-appellee, v. Mildred C. Russell, Defendant-appellant, 808 F.2d 836 (4th Cir. 1986)

In this consolidated appeal, Ove Kongsted and Mildred C. Russell challenge their convictions entered after a jury trial on charges of violating the federal bribery and gratuity statute. 18 U.S.C. § 201. The jury concluded that Kongsted was acting "for or on behalf of the United States ..."¹  when serving as the Acting Rehabilitation Administrator of a housing development known as Greenbelt Homes, Inc., in Prince George's County, Maryland. A payment of $20,080 to Kongsted from Russell, the president of an aluminum supply company doing business with Greenbelt Homes, was, therefore, found to be both a bribe and an illegal gratuity tendered to a public official. We can see no error in that conclusion.

The test for whether an individual is a public official for purposes of the bribery statutes is functional rather than mechanical. The Supreme Court in Dixson v. United States, 465 U.S. 482 (1984), noted that when otherwise nongovernmental figures assume "operational responsibility" over government funds and are "charged with abiding by federal guidelines," they assume a "quintessential official role." The Court applied that standard in affirming the bribery convictions of two employees of a Peoria, Illinois, social service organization which was serving as the city's subgrantee in the administration of a federal block grant.

Despite appellants' efforts to distinguish Kongsted's role as Acting Rehabilitation Administrator from that of the defendants in Dixson, we find that the difference is, at most, one of degree and not of an essential nature. As Acting Rehabilitation Administrator, Kongsted clearly exerted substantial influence over the expenditure of federal funds loaned to Greenbelt Homes, pursuant to section 312 of the Housing Act of 1964, 42 U.S.C. § 1452(b). In any event, the disputed nature of Kongsted's duties was placed before the jury, which was then instructed in conformity with Dixson. The jury found that this activity fell within the intended scope of the statute. We see no basis for disturbing that verdict. Accordingly, the convictions of both Kongsted and Russell are affirmed.

AFFIRMED.