Federal criminal conflict of interest.

AuthorRomano, Michael R.
PositionTenth Survey of White Collar Crime
  1. INTRODUCTION

    The phrase "conflict of interest legislation" describes the volumes of legislation Congress has passed, in the post-Watergate era, to prevent and punish corruption of our public officials.(1) This article will examine the most fundamental of these provisions, which prohibit bribery,(2) unauthorized compensation,(3) certain activities of officers and employees,(4) post-employment lobbying and representation,(5) participation in activities in which official has a financial interest,(6) and accepting outside salaries.(7) These provisions impose sanctions on public officials and private citizens making criminal use of a public office for private gain.(8) Congress continues to demonstrate its support for imposing criminal sanctions for conflict of interest violations.(9)

  2. BRIBERY

    While not always characterized as a conflict of interest provision,(10) bribery has been part of the criminal conflict of interest statute since 1961.(11) The bribery charge consists of the following five elements: (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 carrying out of an official act.(12)

    Section 201 also addresses illegal gratuities given to or requested by public officials.(13) The primary difference between bribery and illegal gratuities is that bribery requires a corrupt intent,(14) while an illegal gratuity does not.(15) They are also different in that for an illegal gratuity "there need be no intent that the official act be influenced by the benefit," which is required for a bribery charge.(16) Due to the similarity of these two offenses, defendants frequently are charged with both. Additionally, a defendant might plead the offering of an illegal gratuity as a defense to a bribery charge, claiming lack of requisite corrupt intent.

    1. Elements of the Offense

      1. Corrupt Intent

        While the bribery statute does not define the term "corruptly," the case law makes clear that the bribery offense requires a quid pro quo.(17) One commits a bribery violation when he or she accepts something of value in return for being influenced in the performance of any official act(18) or when he or she offers something of value to an official for the purpose of influencing government.(19)

        In addition, corrupt intent "incorporate[s] 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."(20)

      2. Public Official

        A frequently litigated issue in bribery cases is whether a public official is involved.(21) The Supreme Court defined "public official" in Dixson v. United States,(22) where the Court found that executives of private nonprofit corporations who were responsible for administering a federal housing grant program became "public officials" 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."(23) The court further stated that Dixson was a public official under section 201 because he was responsible for carrying out tasks delegated by a federal agency, was subject to substantial federal supervision, and he was in a position of responsibility, acting for or on behalf of the Federal Government in administering expenditure of federal funds.(24)

        The Court's decision in Dixson supports the broad application of the public official definition and section 201. Courts have found an army private,(25) a building services manager for a Federal Reserve Bank,(26) an intake official for a federal employment program,(27) an executive director of city housing authority who administered federal funds,(28) and postal employees(29) 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.(30) 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."(31)

        The D.C. Circuit has held that the public official question is one of law for the court to decide.(32) The Second Circuit has considered and rejected a "mere employee" exception to the public official definition in Dixson,(33) holding that an individual's status as an employee and ability or inability to carry out the quid pro quo promise does not affect whether the individual is characterized as a public official.(34) Further, the Fourth Circuit has held that classification as a public official does not depend on the management or distribution of federal funds.(35) Rather, an individual may be a public official based on his or her "federal responsibilities."(36)

      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.(37) The Sixth Circuit has held that "things of value" must be broadly construed, focusing on the value which the defendant subjectively attached to the items received.(38) The Second Circuit has similarly determined whether something is a "thing of value" by the subjective evaluation of the defendant.(39) Where a defendant incorrectly assesses the value of an item, it may still be "of value" for purposes of the statute.(40) 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.(41) The courts have found the promise of future employment,(42) shares of stock,(43) and unsecured, quickly arranged loans(44) 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.(45) The Second Circuit has held a bribe occurred despite the fact that the bribee misrepresented his authority and ability to accomplish the official act.(46) The Sixth Circuit has found a defendant guilty of bribery where the bribee could accomplish the act, but only illegally as a violation of state law.(47) Finally, where the official act was not within the bribee's "lawful duties," the Ninth Circuit has found a defendant guilty of bribery.(48) 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 employee status to accomplish the illegal goals."(49)

      5. Intent to Influence

        Also at issue in relation to the official act is whether or not an individual "intended to influence" another in his or her capacity as a public official.(50) In proving an intent to influence, the government must show that the individual actually offered or received a bribe.(51) A defendant accused of offering a bribe does not demonstrate an intent to influence simply by considering to offer or accept a bribe.(52) The Eleventh Circuit has held that the jury must have an opportunity to consider whether the payment in question was for a legal purpose, such as settling a tax liability.(53) Where the jury has the opportunity to consider alternative legal reasons for payments, they may nonetheless reject these reasons and find the defendant guilty of bribery.(54) For instance, the jury may base a guilty decision on circumstantial evidence of a quid pro quo, notwithstanding alternative legal reasons for payments.(55) Yet a defendant lacks an intent to influence where, despite knowing about payments, the defendant does not know they were intended as bribes.(56)

    2. Defenses

      Where the government successfully demonstrates that each of the bribery elements have been met, the defendant may still raise a number of defenses. The remainder of this section details common, though seldom successful, defenses.

      1. Entrapment

        Perhaps because of the inevitable involvement of an agent of the government, defendants frequently claim entrapment in bribery cases. The Supreme Court reviewed the requirements for entrapment in a non-bribery case,(57) reaffirming the required elements for entrapment previously establish in Sorrels v. United States(58) and Sherman v. United States.(59) While the government may provide the opportunity to commit a crime without it being entrapment,(60)

        [g]overnment agents may not originate a criminal design, implant in an innocent person's mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute.... Where the Government has induced an individual to break the law and the defense of entrapment is at issue ... the prosecution must prove beyond a reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents.(61)

        Where a defendant claims entrapment and it is undisputed that the government induced the crime, the prosecution must show the defendant was "predisposed to violate the law before the [g]overnment intervened."(62) The Second Circuit employed the Supreme Court standard to find predisposition where a briber responded enthusiastically to undercover agents' overtures and subsequently initiated an entire bribery scheme involving tax evasion.(63) The defendant must demonstrate government inducement in an entrapment defense before the burden shifts to the prosecutor with regard to predisposition.(64)

        The Ninth Circuit has identified the following...

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