Summary
Survey of White Collar Crime
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Extract
Public corruption.
I. INTRODUCTION II. BRIBERY AND ILLEGAL GRATUITY A. Elements of the Bribery and Illegal Gratuity Offenses 1. Thing of Value 2. Public Official 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 b. Offenses Involving Witnesses 2. Illegal Gratuity Offenses a. Offenses Involving Public Officials 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 passed a number of statutes to prevent and punish corruption by public officials. (1) This Article discusses the elements, defenses, and penalties of several of those statutes. Section II of the Article examines the elements of, defenses to, and penalties for the bribery (2) and illegal gratuity (3) offenses. Section III begins by exploring the elements of and defenses to an unauthorized compensation offense; (4) it then examines the provisions imposing certain limitations on the activities of government officers and employees both during (5) and after (6) the period of their employment. Section III also analyzes the statutory provisions dealing with participation in activities in which an official has a financial interest, (7) as well as improper acceptance of outside salaries; (8) the Section 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 Although the federal prohibitions on bribes and illegal gratuities have been codified with the federal criminal conflict of interest statute since 1962, (10) they are not characterized as conflict of interest provisions. (11) Together with the conflict of interest provisions, the prohibitions on bribes and illegal gratuities form part of "an intricate web of regulations ... governing the acceptance of gifts and other self-enriching actions by public officials." (12) Part A of this Section describes the four elements of the bribery and illegal gratuity offenses; Part B discusses several defenses; Part C presents the sanctions for these offenses. A. Elements of the Bribery and Illegal Gratuity Offenses Section 201 of Title 18 of the United States Code governs the offenses of bribery and illegal gratuity. (13) Sections 201(a)(1)-(3) define the terms "public official," "person who has been selected to be a public official," and "official act," respectively. (14) Section 201(b)(1) sets forth the elements of a bribery offense applicable to the bribe giver, and [section] 201(b)(2) sets forth the elements applicable to the bribe recipient. (15) To prove this offense, the government must establish the following: (i) a thing of value; (ii) was given, offered, or promised to (or demanded, sought, received, or accepted by); (iii) a present or future public official; (iv) with corrupt intent, intent to influence (or be influenced in the performance of) an "official act." (16) Section 201(c)(1)(A) sets forth the elements of an illegal gratuity offense applicable to the gratuity giver, and [section] 201(c)(1)(B) sets forth the elements applicable to the gratuity recipient. (17) To prove an illegal gratuity offense, the government must establish the following: (i) a thing of value; (ii) was given, offered, or promised to (or demanded, sought, received, or accepted by); (iii) a present, past, or future public official; (iv) "for or because of any official act performed or to be performed by such public official." (18) The critical distinction between bribery and illegal gratuity lies in the element of intent. (19) Bribery requires intent to influence, or be influenced in, an official act. More specifically, it demands "a specific intent to give or receive something of value in exchange for an official act." (20) In contrast, an illegal gratuity has a lesser intent element; it "requires only that the gratuity be given ... 'for or because of' an official act." (21) In addition to intent to influence, there are two other notable differences between the bribery and illegal gratuity offenses. First, while both of...See the full content of this document
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