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offense in § 666, but rather serves a more modest of § 666 in Hamilton’s favor. See
purpose: it merely clarifies ‘that a bribe can be Shular v. United States, 140 S. Ct.
promised before, but paid after, the official’s 779, 787 (2020); see also, e.g.,
action on the payor’s behalf.’” The “influence” Wooden v. United States, 142 S.
and “reward” terms would then each have their Ct. 1063, 1081 (2022) (Gorsuch,
own meaning, the court said: “influence” would J., concurring) (Under the rule of
be for payment then action; “reward” would be for lenity, “any reasonable doubt about
promise, action, then payment. “Both of these sit- the application of a penal law must
uations involve a quid pro quo, and both therefore be resolved in favor of liberty.”);
constitute bribes. What matters, of course, is that The Enterprise, 8 F. Cas. 732, 734
the offer of payment precedes the official act.” (C.C.D.N.Y. 1810) (No. 4,499) (“If
That approach made more sense to the court, for a it be the duty of a jury to acquit
few reasons: (1) limiting § 666 to bribery “would where such doubts exist concern-
help to explain the presence of the ‘corruptly’ lan- ing a fact, it is equally incumbent
guage in § 666(a)(1)(B) and (a)(2),” as that word on a judge not to apply the law . . .
appears in the federal-bribery provision but not where he labours under the same
the federal-gratuity provision; (2) if Congress uncertainty as to the meaning of
made giving illegal gratuities to federal officials the legislature.”); Thomas Z.
punishable by imprisonment for two years, it does Horton, Lenity Before Kisor: Due
not make sense that the same would be punishable Process, Agency Deference, and
by imprisonment for ten years for local officials the Interpretation of Ambiguous
who have some connection to federal funds; and Penal Regulations, 54 Colum. J.L.
(3) it is unlikely that § 666’s two subsections cov- & Soc. Probs. 629, 632–33,
ers all of what § 201’s four subsections do, and if 640–44, 664–66 (2021) (dis-
it only covers either bribery or gratuities, the lan- cussing lenity’s historical prove-
guage is closer to § 201(b)’s bribery provision. nance and explaining that the
canon applies when the meaning of
We believe that the First Circuit has the better a penal statute or regulation is sub-
approach under the plain language of § 666(a). ject to “reasonable doubt”). To the
Other than the word “reward,” § 666 tracks close- extent there is some doubt about
ly with § 201(b)’s bribery provision, with the the meaning of § 666, the rule of
matching “corruptly” and “intent to influence” lenity compels us to resolve it in
language. These similarities compel a similar Hamilton’s favor. Jarkesy, 34 F.4th
result: both § 201(b) and § 666(a) cover only quid at 459 n.9 (“[A]lternative holdings
pro quo bribery. As for “reward,” as noted in are binding precedent and not
Fernandez, it is plausible that Congress included obiter dictum.” (quotation omit-
that term to prevent a situation where a thing of ted)).
value is not given until after an action is taken.
Thus, our approach does not read the term
“reward” out of the statute, as it continues to serve
a valuable purpose under certain circumstances. Not only does that make sense, it makes the rest of
We are convinced that, by its plain terms, § 666(a) the context surrounding § 666 make sense:
applies only to quid pro quo bribery. 2 Congress started out including language in § 666
like the federal illegal-gratuity provision in §
2 In the alternative, under the rule 201(c), but quickly amended it to language far
of lenity, we must resolve all rea- closer to the federal bribery provision in § 201(b);
sonable doubts about the meaning Congress’s decisions about maximum punish-

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