Bribery and Graft

AuthorMajor Jack Crouchet
Pages03

I . INTRODUCTION

  1. GEYERAL

    "[Tlhe public regards the acceptance of gratuities by its sew-ants with grave suspicion."'

    The United States Court af Military Appeals made the above quoted observation in rmted States D. Marke7',z the first opinion of the Court concerning an offense similar tu bribery or graft. Although the accused civilian in that case had induced a Japanese factory owner to be8tow expensire favors upon him, he was charged only with service discrediting conduct. The accused was indeed the recipient of a gratuity other than thaae alleged in the specifications in that he escaped prosecution for the more serious offenses of bribery and graft.

    The practice of reciting the acts of the accused, and alleging that such acts were Service discrediting, had been established in military law long before the United States Court of Xilitary Appeals came into existence.$ Prior to X a ~ k e ~ , there had been nu reported military cases in which the appellate agency required that the proof relate to every element of the offenses of bribery and graft prohibited by the United States Statutes. There were indeed many cases similar to bribery and graft, but the sufficiency of the specifications was usually measured by the resulting discrediting conduct rather than the elements of the aubatantire

    -Thin article was adapted from a thesis presented to The Judge Advocate General's School, U S. Army, Charlotteswlle. Virginia. whlle the author was a member of the Tenth Career Course. The O D ~ ~ B and eon elusion^ presented herein are those oi the author and do not neee~~aiilyrepresent the

    view3 a i The Judge Advocate General's Sehaal or any other eove~nmenfal

    . .

    aeenev.

    I . ** JAGC. U. S. Army: Office of the Staff Judge Advocate, Headquarters. Seventh United States Army: LL B., 1949. St Gouin University: admitted to practice m the State of Texas and before the Umted States Supreme Court, the United States District Court, Eastern Dirtrlet of Texas, snd the Unrted States Court of Military Appeala.

    1 United States V. Xlarker. 1 CSCMA 393, 398, 3 CMR 127, 132 (19521 1 United States V. Marker. 1 USCIA 393 3 CDfR 127 (14LIi

    ~

    ,~ ~ ~~ , ~ ~~ ,....

    See CM 328248, Richardson, 77 BR 1, 18 (1048).

    A00 8(1178 as

    offense as defined by statute.' In Mavker, the Court pointed out that the acceptance of gifts by Army officers from persons with whom they are engaged in the transaction of business had repeatedly been held to be a violation of Article of War 96.6 and that the accused's misconduct was further borne out by the fact that it was condemned by then existing Army regulations.

    The Marker case emphasizes the lack of understanding and the need for a comprehensive study of the military offenses of bribery and graft. The facts in that case were such that either of the offenses might properly have been alleged. The offenses committed by the accused were precisely the kind af offenses prohibited by United States statutes then in effeet,l but the accused was nonetheless charged only with prejudicial conduct in violation of Article of War 96.

    The distinction between bribery, graft, and service discrediting conduct based upon the unlawful giving or acceptance of things of value has always been confusing to military appellate agencies. This fact is well illustrated by an early case' in which the accused had been convicted of bribery. The United States Court of Miiitary Appeals expressed the opinion that the offense was not bribery but similar to graft. In a separate opinion, the Chief Judge expressed his view that the offense was neither bribery nor similar to graft.

  2. DEFINITIONS OF BRIBERY AND GRAFT

    The offenses of bribery and graft are similar in that certain elements of the offenses are common to both. The military offense of briberyis generally defined as the promising, offering, or giving to, or the asking, accepting or receiving by, one occupying an official position or having official duties, of something of value with the corrupt intent to have influenced the official decision or action of such person, with respect to an official matter.8 Graft, on the other hand, prohibits public officials from unlawfully receiving any award or remuneration for services rendered or to be rendered in connection with any official matter in which the

    4 See ibd.6 Now UNIMRM CODE OP MILITARY JUSTJCE [hereinafter cited as UCMJ] art. 134.

    6 Act of June 25.19118, C. 645, $8 201-2.62 Stat. 685. 691 (1948).7 United States s. Alexander. S USCMA 346.12 CMR 102 (1963).8ACM 10050, Gradurn, 18 CMR 667. Pat. denied, 6 USCMA 812, 19 CMR 41s (1965).

    BRIBERY AND GRAFT

    United States is interested,' and it does not matter whether the official matter wa8 performed with a corrupt intent.1° The United States Court of Military Appeals has looked to civilian authorities for assistance and approved the following definition of graft.

    Advantage or personal gain received bee~uae of peedial position (I? superior induenee of one holding position if trust and eonndenee without rendering cornpenastory services, OF dishonest trsnaaetion in reisition topubhe or official acts, and sometime implies theft, eoriuption, diahoneatg, fraud, or swindle, and always want of intagriWl

    The gravamen of the offense of graft is the extraction of private gain from another while holding a peculiar position of influence, or a dishonest transaction in relation to public or official aets.lz

    In each offense, there is an unlawful offer or acceptance, an official position, a thing of value, and an official matter. In bribery there is the additional element of a corrupt intent to influence the official decision or act, In graft, the additional element is the compensation for services rendered or to be rendered.

    The offenses of bribery and graft are loglcalty considered together because of their similarity. The United States Court of Military Appeals and the boards of review seldom discuss one without referring to the other. In discussing an element common to both offenses, an appellate body will sometimes refer to the offenses jointly although it appears that only one or the other is pertinent.13

    The reported cases strongly suggest that accuser8 experience a great amount of difficulty in selecting the proper offense with which to charge an accused and are sometimes unaware that there me, in fact, separate and distinct offenses of bribery and graft." There are other cases in which the accuser obviously intended to charge the accused with either bribery or graft but failed in both because of the omission of an element essential to both offenses.16

    The confusion is not restricted to the armed forces. A recognized authority on the law of crimes states that the subject of bribery and graft is covered by Article 127 of the Unifonn Code

    9 ACM 11616, Hoke, 21 CMR 681, pet. denied. 7 USCMA 765, 21 CMR 34010 Razete v. United States, 189 F.2d 44 (6th Cir. 1952).11 United States V. Alexander, 3 USCMA 346, 349, 12 CMR 102. 105 (1953).

    11 See dissent of Quinn, C.J., in United States V. Alexander, 8uwa note 11. la ACM 5541, Standiey, 9 CMR 610 (19521.lrCM 201997, Mdlon. 6 BR 351 (1934).16 See, e.&, ACM 11615, Hoke, 21 CMR 681, get. denid, 'I USCMA 166,

    (1956).

    21 CMR 340 (1966).

    *GO IWiB 81

    of Military Justice under the related offense of extortion.16 This statement is, of course, completely erroneous.

  3. HISTORY OF THE OFFENSES

    An early definition of bribery suggeats that the offense could not be committed unless the thing of value was corruptly accepted by a "man in judicial place."" This appears to be an unwarranted restriction of the application of the offense or, if it was an accurate definition, the offense was more broadly defined shortly thereafter. Blackstane states that "bribery is where a Judge or other person concerned in the administration of justice takes any undue reward to influence his behavior in office."" Even Blackstone's definition has been liberally interpreted in the United States from the earliest times. A police officer could be indicted at common law for bribery because the courts held that bribery was the offering of any undue reward or remuneration to any public officer or other person entrusted with a public duty with a view ta infiuencing his behavior in the discharge of his duties."

    In modern times, the common law offense of bribery was further enlarged to include any person whose ordinary profession or busi-ness relates ta the administration af public justicez0 and to legis. lative officers.z1 It then became commonly accepted that any per- 80" whose official canduct was in any way connected with the administration of the Government was a proper subject of the offense of bribery.%* The extent to which the offense has been enlarged is reflected in its definition by a modern authority who states that bribery is "the voluntary giving or receiving of anything of value in corrupt payment for an official act, done or to be

    Although bribery wm a misdemeanor at common law,p4 the statutes in the states of the L'nited States usually make bribery a felony and generally prohibit the offense in Several separate ~ e c - tians mrtaininn to different officials who mav be bribed. In mast

    done."23

    16 see CLARK AND MUISXALL, A TRWIBE OS THE LAW OF CRIMES, 910 n. 3s (6th ed., Wingeraby Rev. 1958).

    1-3 Con. INSTITUTES 146 (1680).18 4 BLACK~TONE.

    COMIEXTARIES 138 (1787).19 State V. Miles, 89 Me. 142. 36 Atl. 70 (1896).10 See State V. Hsrrah, 101 WY.Va. 300,131 S.E. 654 (1926).11 See State v Sullivan, 110 Mo. ADP. 75, S4 S.W. 105 (1904).22 See Commonwealth V. Benediet, 114 Pa. Supp. 183, 173 Atl. 850 (1834).28 2 BISHOP, NEW CRlMlXlL LAW 51 (8th ed. 1892). 1.2 BISXOP, NDW CRTMINAL

    LAW 54 (8th ed. 1892).

    BRIBERY AND GRAFT

    states, the different offenses are defined by statute. The statutes may apply to particular officers only, as judicial officer^,'^ legislative or executive officers,2' or they may apply to other persons not regularly compensated by the state government such as witnesses upon B triaLZ7...

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