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Article Excerpt
I. INTRODUCTION
II. BRIBERY AND ILLEGAL GRATUITY A. Elements of the Bribery and Illegal Gratuity Offenses 1. Thing of Value 2. Public Official or Witness 3. Official Act 4. Intent a. Bribery b. Illegal Gratuity B. Defenses 1. Entrapment 2. Due Process 3. Duress or Coercion 4. Other Defenses C. Penalties 1. Bribery Offenses a. Offenses Involving Public Officials i. More than One Bribe ii. Value of Greater than Five Thousand Dollars iii. High-level and Sensitive Positions iv. Immigration Official v. Facilitating Other Offenses vi. Unknown Value or Incommensurate Effect b. Offenses Involving Witnesses 2. Illegal Gratuity Offenses a. Offenses Involving Public Officials i. More than Illegal Gratuity ii. More than Five Thousand Dollars iii. High-Level or Sensitive Position iv. Immigration Official b. Offenses Involving Witnesses III. CRIMINAL CONFLICT OF INTEREST A. Unauthorized Compensation 1. Elements of the Offense a. Coverage b. Particular Matter. c. Compensation d. Intent e. Forum 2. Defenses B. Limitations on Activities of Government Officers and Employees 1. Coverage 2. "Particular Matter" and "Agency" 3. Exceptions C. Post-Employment Activities 1. Elements of the Offense a. Coverage b. Representative or Agent c. Direct and Substantial Interest of the United States d. Participated "Personally and Substantially" in "Particular Matter" e. Knowledge D. Acts Affecting Financial Interest 1. Elements of the Offense a. Officer or Employee b. Participated "Personally and Substantially" in "Particular Matter". c. Knowledge of Financial Interest 2. Defenses E. Illegal Outside Salaries for Federal Employees F. Penalties
I. INTRODUCTION
Congress has enacted a number of statutes that seek to prevent and punish corruption by public officials. (1) The discussion that follows examines the elements of, defenses to, and penalties for several of the crimes enumerated by those statutes.
Section II of this Article examines the elements of, defenses to, and penalties for the federal bribery (2) and illegal gratuity (3) offenses. Section III explores the elements of and defenses to the unauthorized compensation offense (4) and examines provisions limiting the activities of government officers and employees during (5) and after (6) their terms of employment. Section III also analyzes the statutory provisions governing participation by government officials in activities in which the official has a financial interest, (7) as well as improper acceptance of outside salaries. (8) Section III concludes by discussing the penalties that the United States Sentencing Guidelines ("Guidelines") authorize for persons who make criminal use of a public office for private gain. (9)
II. BRIBERY AND ILLEGAL GRATUITY
In 1962, Congress enacted a package of conflict of interest legislation which significantly revised the federal bribery statute. (10) These revisions laid the foundation for "an intricate web of regulations ... governing the acceptance of gifts and other self-enriching actions by public officials," (11) including statutory prohibitions on bribery and illegal gratuity. The discussion that follows describes the four elements of the bribery and illegal gratuity offenses, and then considers potential defenses and sanctions.
A. Elements of the Bribery and Illegal Gratuity Offenses
Section 201 of Title 18 of the U.S. Code governs the offenses of bribery and illegal gratuity. (12) After relevant definitions are .set forth in [section] 201(a), (13) [section] 201(b) enumerates the dements of bribery. (14) To prove bribery, the government must generally establish that: (i) a thing of value was given, offered, or promised to (or, in the case of a recipient, demanded, sought, received, or accepted by); (ii) a present or future public official; (iii) for an "official act"; (iv) with corrupt intent or intent to influence (or be influenced). (15)
Similarly, the dements of the illegal gratuity offense are set forth in [section] 201(C). (16) To prove the offense of illegal gratuity, the government must establish that: (i) a thing of value was given, offered, or promised to (or, in the case of a recipient, demanded, sought, received, or accepted by); (ii) a present, past, or future public official; (iii) "for or because of any official act performed or to be performed by such public official." (17)
The critical distinction between bribery and illegal gratuity is that the former requires proof of intent, while the latter does not. (18) Bribery demands "a specific intent to give or receive something of value in exchange for an official act," (19) while an illegal gratuity "requires only that the gratuity be given ... 'for or because of' an official act." (20)
In addition to intent to influence, there are two other notable differences between the bribery and illegal gratuity offenses. First, while both offenses apply to present and future public officials, only the illegal gratuity offense applies to former public officials. (21) Second, while the illegal gratuity offense only involves attempts to influence "official acts," bribery also applies to attempts to influence the commission of a fraud against the United States or any act in violation of a lawful duty. (22)
1. Thing of Value
For an act to constitute bribery or illegal gratuity under [section] 201(b) or (c)(1), an individual must provide a recipient with a "thing of value." (23) The term "thing of value" has been broadly defined by courts (24) to include monetary and other tangible payments (25) as well as intangible benefits. (26) Among items courts have found to be "things of value" are promises of future employment, (27) vacation trips, (28) illegal immigration documents,(2 9) shares of stock, (30) and unsecured, quickly arranged loans. (31) Any item that the recipient subjectively believes to have value qualifies, (32) even if it has little or no objective commercial worth. (33)
The thing of value, whether a connected bribe or an illegal gratuity, may be conveyed to the public official either before or after the official act takes place. (34) Although most bribes are paid in advance, "it is only logical that in certain situations the bribe will not actually be conveyed until the act is done." (35) Similarly, while gratuities typically are paid after the fact, they may, "[b]y this same logic ... be conveyed before the occurrence of the act (so long as the payor believes the official has already committed himself to the action)." (36)
Because [section] 201(c)'s bar against gifts or promises of "things of value" extends to testimonial witnesses, (37) courts have been forced to consider whether the prohibition applies to federal prosecutors, who may use various procedural enticements, e.g., immunity, leniency, and plea bargains, as things of value with which to obtain testimony. Despite an earlier conflict, as the federal circuits now unanimously agree that the witness gratuity prohibition does not apply to federal prosecutors' use of immunity and leniency. (39) In describing prosecutors as the "alter ego of the United States," (40) and as an "inanimate entity" (41) outside the reach of the statutory prohibition, the Tenth Circuit reasoned that to hold otherwise would be "a diminution of sovereignty not countenanced in our jurisprudence." (42) A number of circuits have applied this reasoning to immunize prosecutors' payments to informants, (43) decisions not to prosecute, (44) and offers of immigration benefits. (45) This reasoning has been extended to civil trial testimony as well. (46)
2. Public Official or Witness
The bribery and illegal gratuity offenses set forth in [section] 201 are directed at "public official[s]," "person[s] who have been selected to be public official[s]," or "witness[es]." (47) The illegal gratuity offense applies to "former public officials" as well. (48)
Section 201(a)(1) defines "public official" as the following:
Member of Congress, Delegate, or Resident Commissioner, either before or after such official has qualified, or an officer or employee or person acting for or on behalf of the United States or any department, agency or branch of Government thereof, including the District of Columbia, in any official function, under or by authority of any such department, agency, or branch of Government, or a juror.
18 U.S.C. [section] 201(a)(1). Section 201(a)(2) defines a "person who has been selected to be a public official" as "any person who has been nominated or appointed to be a public official, or has been officially informed that such person will be so nominated or appointed." (49)
The statute defines "witness" as a person who testifies at "a trial, hearing, or other proceeding." (50) This definition includes proceedings before any court, any committee of the Senate, House, or both, "or any agency, commission, or officer authorized by the laws of the United States to hear evidence or take testimony." (51)
Based on its understanding of congressional intent, the Supreme Court and lower federal courts have interpreted the term "public official" broadly. (52) According to the Court, "the proper inquiry is not simply whether the person had signed a contract with the United States or agreed to serve as the Government's agent, but rather whether the person occupies a position of public trust with official federal responsibilities." (53) Because state, county, municipal, and private sector employees often have official responsibilities for implementing federal programs or policies, the Court's definition captures both federal and non-federal officials. (54)
The actual ability or authority of an official to achieve the objective(s) of the offeror of a bribe is irrelevant to his or her status as a "public official." (55) Accordingly, an official may be considered a "public official" within the meaning of [section] 201(a)(1) even where the offeror of a bribe has misperceived, or where the official himself has misrepresented, the scope of his or her authority. (56) Courts have also held that undercover agents acting as public officials qualify as "public officials" under [section] 201(a)(1). (57)
3. Official Act
Only a bribe or gratuity involving an "official act" will trigger liability under [section] 201. (58) Section 201(a)(3) defines "official act" as "any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official's official capacity, or in such official's place of trust or profit." (59)
The Supreme Court adopted a narrow definition of "official act" in United States v. Sun-Diamond Growers, (60) noting that Congress carefully defined the term to eliminate possible "absurdities" of interpretation. (61) Based on a close reading of the text of the statute, the Court held that to prove a bribe or an illegal gratuity, a "particular official act [must] be identified." (62)
4. Intent
The Supreme Court emphasized in Sun-Diamond (63) that the bribery and illegal gratuity violations of [section] 201 differ significantly with regard to the element of intent. (64)
a. Bribery
To prove a bribery violation under [section] 201(b), the government must show a corrupt intent to influence, or be influenced in, the performance of an official act. (65) As construed by the Supreme Court, this element requires proof of a quid pro quo--"a specific intent to give or receive something of value in exchange for an official act." (66)
Lower federal court decisions suggest that vague expectations of some future benefit do not satisfy the statutory intent requirement. (67) Accordingly, campaign contributions do not constitute bribery if made by a contributor who simply hopes that the public official will act favorably on the matters of interest to the contributor. (68) Absent a showing that a payment was made in exchange for a specific promise to perform (or refrain from performing) a specific official act, a campaign contribution will not be held to constitute a bribe. (69)
Courts have recognized that payments made by private parties to public officials may have "dual purposes," one appropriate, the other illicit. (70) Along these lines, several decisions hold that a "valid purpose that partially motivates a transaction does not insulate participants in an unlawful transaction from criminal liability." (71)
The statutory intent requirement applicable to the offense of bribery may be satisfied by circumstantial evidence. (72) In addition, individual payments or promises need not be specifically correlated to a particular official act, as long as the offeror of the bribe intended each payment to "induce the official to adopt a specific course of action." (73) Significantly, a payment or promise need not alter a public official's actual course of conduct, as long as the parties to the transaction possessed corrupt intent. (74)
b. Illegal Gratuity
To prove an illegal gratuity violation under [section] 201(c)(1), the government must prove only that the gratuity was given (or accepted) "for or because of any official act." (75) Corrupt intent (76) and in turn quid pro quo (77)--need not be established.
Prior to the Supreme Court's decision in Sun-Diamond, lower courts generally agreed that an illegal gratuity differs from a bribe in that it does not involve a quid pro quo, but reached divergent conclusions concerning the requisite link between the gratuity and the official act. (78) Several courts adopted a "status" approach that linked the gratuity to the recipient's official status or position, rather than to a particular act. (79) Others took a "bribery-like" approach, (80) that required a link between the gratuity and a specifically identified act, (81) in effect treating the illegal gratuity violation as a lesser-included offense of bribery. (82)
The 1999 Sun-Diamond decision resolved the conflict among lower courts, holding unanimously that "in order to establish a[n] [illegal gratuity] violation ... the Government must prove a link between a thing of value conferred upon a public official and a specific 'official act' for or because of which it was given." (83) The Court's decision, therefore, clearly established that a gratuity must be linked to a specific official act to constitute an offense under [section] 201(c)(1)(A), and that gratuities based on an official's position or intended to "build a reservoir of goodwill that might ultimately affect one or more of a multitude of unspecified acts, now and in the future," were not within the reach of the illegal gratuities statute. (84)
Despite this holding, the Court failed to reach the question of whether the illegal gratuity offense encompasses efforts to persuade, or otherwise influence, a public official in the performance of some future official act. (85) As a result, the difference between a forward-looking illegal gratuity (a gift to a public official in anticipation of an official act) and a bribe (a gift to a public official in exchange for an official act) has remained "somewhat murky." (86)
Shortly after Sun-Diamond, the United States Court of Appeals for the District of Columbia Circuit rendered a decision which further complicated the analysis, concluding that an illegal gratuity offense may be established where intent to induce a public official to take some future official act is shown. (87) According to at least one commentary, this holding created an "extremely fine" distinction between a forward-looking gratuity and a bribe. (88)
B. Defenses
This subsection addresses commonly raised, but rarely successful, defenses to bribery or illegal gratuity charges under [section] 201, including: (i) entrapment; (ii) due process; (iii) duress or coercion; and (iv) other defenses.
1. Entrapment
Defendants charged with bribery or illegal gratuity violations under [section] 201 often claim entrapment (89) as a defense. (90) These attempts, however, typically ark unsuccessful. (91)
2. Due Process
Defendants charged with bribery under [section] 201(b) have also raised a due process defense. (92) Although the Supreme Court appeared to suggest in the early 1970s that there could be situations in which government conduct was so outrageous as to violate fundamental principles of due process, (93) since 1976, the Court has indicated that outrageous government conduct should result in prosecution of government officials rather than exculpation of criminal defendants. (94) Accordingly, most circuits have not recognized due process violations as a bar to prosecution. (95)
3. Duress or Coercion
Some defendants charged with bribery under [section] 201(b) have unsuccessfully attempted to show that they acted under governmental duress or coercion. (96) In evaluating the merits of such defenses, a number of circuits have adopted a test requiring a defendant to establish three elements: "(i) an immediate threat of death or serious bodily injury; (ii) a well-grounded fear that the threat will be carried out; and (iii) no reasonable opportunity to avoid the threatened harm." (97)
4. Other Defenses
Courts have considered a host of other defenses raised by individuals charged with bribery or illegal gratuity under [section] 201.
First, several defendants charged with such offenses while serving as Members of Congress have attempted to claim that the Speech or Debate Clause of the U.S. Constitution (98) shields them from prosecution. (99) Although the Supreme Court accepted one version of this argument in United States v. Johnson, (100) a case involving the prosecution of a Congressman for Criminal conspiracy, (101) it stated unequivocally in United States v. Brewster that "while [i]t is beyond doubt that the Speech or Debate Clause protects against inquiry into acts that occur in the regular course of the legislative process," the act of taking a bribe "is, obviously, no part of the legislative process or function." (102) Accordingly, the Court held that the Speech or Debate Clause presents no bar to the prosecution of a Member of Congress for bribery. (103)
However, the Speech or Debate Clause may be raised as a defense to the execution of a warrant to search the office of a sitting Member of Congress. This question is no longer academic after the FBI's raid on the Washington office of Representative William J. Jefferson (D.-La) in May 2006, in connection with an ongoing investigation into allegations that the Congressman solicited and accepted bribes in exchange for promoting the interests of private business ventures abroad. (104) Although the search was initially upheld by the U.S. District Court for the District of Columbia, (105) the United States Court of Appeals for the D.C. Circuit held that the Executive's search of the Congressman's paper files violated the Clause. (106)
Finally, courts hear a litany of other defenses, including claims that the illegal gratuities statute is unconstitutionally vague or overbroad, (107) claims that the scope of federal employee immunity should be expanded to include bribery actions, (108) arguments that the payment of gratuities is a widespread practice in a particular industry, (109) and arguments that defendants engaged in the bribery-related transactions were conducting their own bribery investigations. (110)
C. Penalties
Because a defendant convicted of bribery necessarily possesses criminal intent, penalties for bribery are significantly greater than penalties for illegal gratuities. (111) Under [section] 201(b), individuals who offer or receive a bribe may be imprisoned for up to fifteen years and fined either a statutory maximum of $250,000 ($500,000 for organizations) or triple the value of the bribe, whichever is greater. (112) Such individuals may also be disqualified from holding any government office of honor, trust, or profit. (113)
Under [section] 201(c), those who give or receive an illegal gratuity may be imprisoned for up to two years, fined up to $250,000 ($500,000 for organizations), or both. (114)
Both bribery and illegal gratuity defendants may be sentenced pursuant to the Guidelines, (115) which provide for "considerably higher" sentences for public corruption offenses than typical pre-Guidelines sentences. (116)
1. Bribery Offenses
a. Offenses Involving Public Officials
Courts must refer to [section] 2C1.1 of the Guidelines when a defendant is convicted under Sections 201(b)(1) or (2) for bribery involving public officials. (117) Section 2C1.1 sets a base offense level of fourteen if the defendant was a public official at the time of the offense. (118) The term "public official" is to be construed broadly. (119)
Significantly, Section 2C1.1 also provides that the offense level should be increased if the offense under consideration includes any of the following characteristics, discussed in turn below. (120)
i. More than One Bribe
If the bribery offense involves more than one bribe, the base offense level is increased by two levels. (121) An offense may involve more than one bribe if it is reasonably foreseeable that payments will subsequently be made to another party as part of the same kickback scheme. (122) The Guideline Application Notes state that "[r]elated payments that, in essence, constitute a single incident of bribery ... (e.g., a number of installment payments for a single action) are to be treated as a single bribe ... even if charged in separate counts." (123) However, a series of bribes may also be viewed as multiple incidents rather than installment payments. (124) The most important factor to consider in determining whether payments constitute independent actions or installment payments is whether each payment has a distinct condition--if payments each have a distinct condition, they are considered independent actions even if each condition is part of a common goal. (125) Other factors to take into account are whether payments are made in consistent amounts and intervals, (126) and whether each payment comes from a different source or via a different method of delivery. (127)
ii. Value of Greater than Five Thousand Dollars
Under [section] 2C1.1(b)(2), if the value of the payment, the benefit received or to be received in return for the payment, or the loss to the government from the offense is greater than $5000, the offense level is increased in accordance with the table in Section 2B 1.1. (128) Sentences are calculated using the largest of the three amounts. (129)
In calculating the benefit garnered by an illegal payment, the cost of the bribe itself is not deducted. (130) Calculations need only be reasonable estimates. (131) When benefits are accrued by individuals other than the offeror of the bribe, they are included in the benefit calculation if the third parties were co-conspirators. (132) Whether the intended scheme was thwarted (133) (or whether the benefit was ultimately obtained) is irrelevant, (134) as is the likelihood that the benefit could have been obtained by legal means. (135)
In calculating the loss to the government, the actual loss, intended loss, pecuniary harm, and the reasonably foreseeable pecuniary harm are considered. (136)
iii. High-level and Sensitive Positions
If the offense involves "a payment for the purpose of influencing an elected official or an official holding a high-level decision-making or sensitive position," the offense level is increased by four levels, provided that the resulting offense level equals at least eighteen. (137) Many courts eschew formalistic distinctions between "high-level" and "sensitive" positions and seem to use the terms interchangeably. (138) Other courts, however, perceive the two as distinct categories. (139)
Included as "high-level" officials are prosecuting attorneys, judges, agency administrators, supervisory law enforcement officers, customs supervisors, and other government officials with similar responsibilities. (140) Typical indicia of "high level" responsibility include supervision of other employees, creation of public policy, and the influencing of or substitution for policymakers. (141)
Individuals classified as holding "sensitive positions" include jurors, law enforcement officers, and election officials. (142) Significantly, discretion or supervisory power is insufficient to render a position "sensitive"; (143) indeed, supervisory power is not a requirement. (144) Factors that courts have found to be indicative of a "sensitive" post include possession of "unreviewed power over important public decisions," (145) the performance of other "quasi-judicial functions," (146) and substantial influence in matters with large effects on government finances. (147)
iv. Immigration Official
The Guidelines were amended in November 2004 to provide for a two-level increase for public officials who facilitated entry or helped obtain a document for entry into the United States, a document for grant of citizenship, or a government identification document. (148)
v. Facilitating Other Offenses
Section 2C1.1 also includes cross-references to other offenses. (149) If the defendant committed a bribery offense to facilitate the commission of another criminal act, the sentencing court is instructed to apply the offense level applicable to conspiracy to commit the "other" offense, where doing so results in a higher final offense level. (150) Similarly, if the defendant committed the bribery offense to...
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