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01/24/92 CHARLES COLBERT v. UNITED STATES

January 24, 1992

CHARLES COLBERT, JR., APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Colleen Kollar-Kotelly, Trial Judge)

Before Rogers, Chief Judge, Terry, Associate Judge, and Pryor, Senior Judge.

The opinion of the court was delivered by: Pryor

PRYOR, Senior Judge: Appellant Charles Colbert, Jr. was tried by jury and convicted of bribery. *fn1 D.C. Code § 22-712 (a)(2) (1989). His challenges on appeal focus on the unique status of the Washington Area Metropolitan Transit Authority (WMATA), an entity created by an interjurisdictional compact. He contends that because WMATA is not an agency of the District of Columbia, he could not be a "public servant" to whom the bribery statute applies. In addition, appellant contends that the Superior Court of the District of Columbia improperly assumed jurisdiction over his case, because the interstate compact creating WMATA does not expressly grant original jurisdiction to the Superior Court. Unpersuaded by these arguments, we affirm.

In 1987, appellant was employed by WMATA as a construction inspector. His responsibilities included ensuring that independent contractors working for WMATA complied with construction plans and specifications. Between June and October of 1987, appellant was assigned to inspect the construction of a bus wash facility at the garage located on M Street in Southeast Washington. The W.M. Schlosser Construction Company was to perform the construction. The company employed Peter Syed as the project manager, and Robert Thurman as the field superintendent.

At some time in August and September of 1987, appellant allegedly approached both Syed and Thurman several times, requesting "kickback" payments. Syed subsequently notified his supervisor, who in turn notified the Metro Transit Police. To aid their investigation, Syed agreed to wear a hidden tape recorder which recorded a conversation wherein appellant explained to Thurman and Syed the nature of his request for money and the favored treatment that would result in exchange for $500.00. A second meeting was held during which appellant was paid $500.00 in prerecorded funds. This meeting was also secretly recorded. Ultimately, appellant was arrested, charged with bribery, and found guilty.

The threshold issue for our consideration is whether WMATA is an agency of the District of Columbia. The resolution of this question implicates other considerations: appellant's status as a "public servant"; the Superior Court's jurisdiction over the prosecution; and the applicability of D.C. Code § 22-712 (a)(2), the bribery statute, to appellant.

I.

Appellant argues that "WMATA is not, and has never been, a District government agency but, rather, operates as an interstate compact, created by federal legislation . . . to help in the development of viable commerce in the national capital area . . . . Hence, WMATA is a federal agency chartered by Congress, but based in part upon a compact formed with two states and the federal government."

We observe that the Constitution restricts the authority of the states to enter into compacts with one another by providing that "no State shall, without the Consent of Congress . . . enter into any Agreement or Compact with another State . . . ." U.S. Const. Art. I, § 10, cl. 3. Congressional consent, however, is required only if the compact affects the political power or influence of particular states or "encroaches . . . upon the full and free exercise of Federal authority." Virginia v. Tennessee, 148 U.S. 503, 520, 37 L. Ed. 537, 13 S. Ct. 728 (1893) (holding that an interstate agreement which did not increase states' political power and encroach upon supremacy of federal government did not fall within the ambit of the Compact Clause and would not be invalidated for lack of congressional consent); Cuyler v. Adams, 449 U.S. 433, 66 L. Ed. 2d 641, 101 S. Ct. 703 (1981) (holding that Congress, when presented with a question of federal law, can give its consent in advance on an interstate agreement); United States Steel Corp. v. Multistate Tax Commission, 434 U.S. 452, 54 L. Ed. 2d 682, 98 S. Ct. 799 (1978) (holding the Multistate Tax Compact valid under Virginia v. Tennessee). *fn2

Appellant's argument that the clause in the WMATA Compact approving the transportation agreement between the District of Columbia, Maryland and Virginia has transformed WMATA into a federal agency is without merit. Initially, it ignores the explicit language of the Washington Metropolitan Area Transit Authority Compact, which provides in pertinent part:

the purpose of this Title is to create a regional instrumentality, as a common agency of each signatory party, *fn3 empowered, in the manner hereinafter set forth, (1) to plan, develop, finance and cause to be operated improved transit facilities . . ., (2) to coordinate the operation of the public and privately owned or controlled transit facilities, . . . and (3) to serve such other regional purposes and to perform such other regional functions as the signatories may authorize by appropriate legislation. (Emphasis supplied.)

D.C. Code § 1-2431 (2). See also, D.C. Code § 1-2431 (4) (WMATA is "an instrumentality and agency of each of the signatory parties"). Moreover, our jurisprudence has explicitly acknowledged WMATA's status as an agency of the District of Columbia. This court, in Qasim v. Washington Metropolitan Area Transit Authority, 455 A.2d 904 (D.C.), cert. denied, 461 U.S. 929, 77 L. Ed. 2d 300, 103 S. Ct. 2090 (1983), held that "Section 4 of the Compact expressly established WMATA as an agency of each sovereign signatory of the Compact." Similarly, in resolving whether the plaintiffs had standing to challenge WMATA's compliance with the requirements of the Compact, a federal district court noted that "the Authority itself is merely an agency of each of the signatory parties including the United States on behalf of the District of Columbia. . . ." The Bootery, Inc. v. Washington Metropolitan Area Transit Authority, 326 F. Supp. 794, 798-99 (D.D.C. 1971) (footnotes omitted). *fn4

Compacts involving interjurisdictional transportation agreements are neither unique nor necessarily federal in nature. In 1921, New York and New Jersey entered into a bi-state compact creating the Port Authority of New York and New Jersey. 1921 N.J. Laws, c. 151; 1921 N.Y. Laws, c. 154; see N.J. Stat. Ann. § 32:1-1 et seq. (West 1963); N.Y. Unconsol. Laws § 6401 et seq. (McKinney 1979). In accord with the Constitution's compact clause, Art. I, § 10, cl. 3, Congress consented to the compact. 42 Stat. 174 (1921). Through the compact, the two states created the Port Authority to achieve "a better co-ordination of the terminal, transportation and other facilities of commerce in, about and through the port of New York." N.J. Stat. Ann. § 32:1-1 (1963); N.Y. Unconsol. Laws § 6401 (McKinney 1979), and lodged in the Authority "full power and authority to purchase, construct, lease and/or operate any terminal or transportation facility within [the port] district." N.J. Stat. Ann. § 32:1-7 (1963); N.Y. Unconsol. Laws § 6407 (McKinney 1979). See generally United States Trust Co. v. New Jersey, 431 U.S. 1, 52 L. Ed. 2d 92, 97 S. Ct. 1505 (1977). When deciding whether the Port Authority shared Eleventh Amendment immunity, the New York courts, ab initio, recognized that the States had established the Authority as a state agency under the supervision of its constituent jurisdictions. See Port Authority Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 109 L. Ed. 2d 264, 110 S. Ct. 1868 (1990); Port Authority Police Benevolent Ass'n v. Port Authority of New, York & New Jersey, 819 F.2d 413 (3d Cir.), cert. denied, 484 U.S. 953, 98 L. Ed. 2d 370, 108 S. Ct. 344 (1987). Although the WMATA Compact differs from the interjurisdictional agreement entered into by New York and New Jersey in ...


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