Federal criminal conflict of interest.

• Author: O'Brien, Carolyn G.
• Position: Ninth Survey of White Collar Crime

1. BRIBERY 570 A. Elements of the Offense 572 1. Corrupt Intent 572 2. Public Official 573 3. Thing of Value 575 4. Official Act 575 5. Intent to Influence 576 B. Defenses 577 1. Entrapment 577 2. Entrapment Variations 579 3. Outrageous Government Conduct 579

   4. Duress or Coercion 580 5. Other Defenses 580 II. Criminal Conflict of Interest 581 A. Elements of the Offense 582 1. Coverage 582 2. Particular Matter 583 3. Compensation 584 4. Intent 585 5. Forum 585 B. Defenses 587 C. Remedies 588 III. Current Issues 588 Conflict of interest legislation is "directed at an evil which endangers the very fabric of a democratic society, for a democracy is effective only if the people have faith in those who govern, and that faith is bound to be shattered when high officials and their appointees engage in activities which arouse suspicions of malfeasance and corruption."(1)

   The phrase "conflict of interest legislation" perhaps inadequately describes the volumes of legislation Congress has passed in an attempt to prevent and punish corruption of our democratic form of government.(2) Among the most fundamental of these provisions are sections 201, 203 and 205 of title 18, chapter 11 - Bribery, Graft, and Conflicts of Interest, of the United States Code.(3) These provisions impose sanctions on public officials and private citizens who lose sight of whose interests such officials are expected to serve. Where a high-profile official joins in the "revolving door" phenomenon or otherwise appears to benefit personally from his or her public duties, the media frequently exposes the activity to the sunlight of public examination.(4) This article, however, addresses an equally threatening phenomenon-public officials and private citizens outside the limelight making criminal use of a public office for private gain. Congress continues to demonstrate its support for imposing criminal sanctions for conflict of interest violations.(5)

   While only two of several statutes that protect the process of government service from individual greed or influence,6 sections 201 and 203 of Title 18 illustrate the nature of government corruption issues. This article addresses the elements of bribery (section 201) and criminal conflict of interest (section 203), the similarities between sections 203 and 205, and the respective defenses to these charges.

1. Bribery

   While not always characterized as a conflict of interest provision,(7) bribery has been part of the codified criminal conflict of interest statute since 1961.(8) The federal bribery provision is the most frequently litigated of the conflict of interest sections.(9) There are five elements to a bribery charge: (1) a corrupt intent; (2) a public official; (3) a benefit, anything of value, accruing to a public official; (4) a relationship between the thing of value and some official act; and (5) an intent to influence the public official, or to be influenced if the defendant is the official, in the carrying out of an official act.(10)

   Section 201 also addresses illegal gratuities to or requested by public officials.(11) The difference between bribery and giving or receiving illegal gratuities is the presence or absence of corrupt intent. These differences and corrupt intent generally are the first bribery element discussed below. Frequently defendants will be charged with both bribery and the giving or receiving of illegal gratuities or they might plead the offering of an illegal gratuity as a defense to a bribery charge.

   1. Elements of the Offense

      1. Corrupt Intent

         The difference between gratuities and bribes is one between payments "because of [the official's] official act" (gratuities) and payments "in exchange for [the official's] being influenced in his duties" (bribes).12 A bribery offense involves a "quid pro quo" element.(13)

         Whereas "[a] public official commits a gratuity violation when he accepts something of value, here the promise of a job, |for or because of any official act performed or to be performed,'... he commits a bribery violation when he accepts something of value |in return for being influenced in the performance of any official act.'"(14)

         A further distinction between bribes and gratuities involves whether a reward is for past or future actions. Evidence that an award is provided and favorable treatment follows indicates "that the benefits were received for the purpose of being influenced in the future performance of official duties, thereby satisfying the quid pro quo element of bribery."(15)

         The quid pro quo element of bribery is considered part of the corrupt intent required to show a bribe versus a gratuity.16 Corrupt intent "incorporat[es] a concept of the bribe being a prime mover or producer of the official act ... [and] this element of quid pro quo ... distinguishes the heightened criminal intent requisite under the bribery section of the statute from the simple mens rea required for violation of the gratuity sections."17 Offering or receiving a gratuity is therefore a lesser offense within the bribery offense.18

         Courts have found corrupt intent where a United States Customs Agent accepted payment for allowing cocaine into the United States.(19) Further, where the defendant offered to do something in exchange for the public official's action, corrupt intent was demonstrated.(20) Corrupt intent is also demonstrated where the prosecutor shows the defendant knew the public official was being paid to violate the law.(21)

         2 Public Official

         A frequently litigated issue in bribery cases is whether a public official, as required by statute,(22) is involved. The Supreme Court defined "public official" in Dixson v. United States.(23) The Court found that the petitioner became a "public official" within the meaning of section 201 "[b]y accepting the responsibility for distributing these federal fiscal resources ... [and assuming] the quintessentially official role of administering a social service program established by the United States Congress."(24) The court further stated that petitioner Dixson was a public official under section 201 because he "was responsible for carrying out tasks delegated by a federal agency and was subject to substantial federal supervision.... [H]e was in a position of responsibility, acting for or on behalf of the Federal Government in administering expenditure of federal funds."(25)

         The Court's decision in Dixson serves to affirm earlier courts' broad application of the public official definition and section 201. Prior to Dixson, courts had found an army private,26 a building services manager for a Federal Reserve Bank,(27) and an intake official for a federal employment program(28) within the definition of public official.

         The Dixson Court cautioned that the decision was not meant to bring every employee of an organization that receives federal funds within the definition of public official.(29 Rather, the Court held that public officials are only those individuals who "possess some degree of official responsibility for carrying out a federal program or policy."(30)

         Despite the Court's decision in Dixson, defendants continue to raise and lower courts continue to address the public official question. The D.C. Circuit has held that the public official question is one of law for the court to decide.(31) The Second Circuit has considered and rejected a "mere employee" exception to the public official definition in Dixson,32 holding that an individual's status as an employee and her ability or inability to carry out the quid pro quo promise does not affect whether the individual is characterized as a public official.(33) Further, the Fourth Circuit has held that classification as a public official does not depend on the management or distribution of federal funds.(34) Rather, an individual may be a public official based on his "federal responsibilities."(35)

      3. Thing of Value

         Where an alleged briber offers, or an alleged bribee accepts, something that is not clearly money, there may be some question as to whether a "thing of value" has been exchanged.(36) Nonetheless the Sixth Circuit has held that "|things of value' must be broadly construed . . . [and] the focus of the above term [must] be placed on the value which the defendant subjectively attaches to the items received."(37) The Second Circuit concurs, determining whether something is a "thing of value" by the subjective evaluation of the defendant.(38) Where a defendant incorrectly assesses the value of an item, it may be a still be "of value" for purposes of the statute.(39) Further, an item may be a thing of value regardless of whether it was offered or received in the context of a gratuity or a bribe.(40) The courts have found the promise of future employment,(41) shares of stock,(42) and unsecured, quickly arranged loans(43) all to be "things of value."

      4. Official Act

         In evaluating the "official act" element of bribery, courts have rejected the notion that a bribe has not been received when the briber over-estimates the bribee's abilities or authority.(44) The Second Circuit has held a bribe occurred despite the fact that the bribee misrepresented his authority and ability to accomplish the official act.(45) Where the bribee could accomplish the act, but only illegally as a violation of state law, the Sixth Circuit found the defendant guilty of bribery.(46) Finally, where the official act was not within the bribee's "lawful duties," the Ninth Circuit has found bribery.(47) Despite this broad interpretation of the official act element, the Sixth Circuit has cautioned that not every inducement will constitute bribery and the "briber must still have intended that the federal employee utilize [his] employee status to accomplish the illegal goal."(48)

      5. Intent to Influence

         The final element of bribery is a requirement that an individual "intended to influence" another in her capacity as a public official.(49) In proving an intent to influence, the government must first show that...