Federal criminal conflict of interest.

• Author: Angeli, Dave H.
• Position: Eleventh Survey of White Collar Crime

1. Introduction II. BRIBERY AND ILLEGAL GRATUITIES

   A. Elements of the Bribery Offense

   1. Thing of Value

   2. Federal Public Official

   3. Corrupt Intent.

   4. Influence of a Public Official

   5. Official Act

      B. Defenses

   1. Entrapment

   2. Outrageous Government Conduct

   3. Duress or Coercion

   4. Other Defenses

      C. Illegal Salaries for Federal Employees

      D. Penalties III. CRIMINAL CONFLICT OF INTEREST

      A. Unauthorized Compensation

   1. Elements of the Offense

      1. Coverage

      2. Particular Matter

      3. Compensation

      4. Intent

      5. Forum

   2. Defenses

      B. Limitations on Activities of Government Officers

      and Employees

      C. Post-Employment Activities

   1. Elements of the Offense

      1. Coverage

      2. Representative or Agent

      3. Direct and Substantial Interest of the United States

      4. Particular Matter and Official Responsibility

      5. Knowledge/Intent

   2. Defenses

      D. Acts Affecting Financial Interest

   1. Elements of the Offense

      1. Officer or Employee

      2. Participated "Personally and Substantially" in a

         "Particular Matter"

      3. Knowledge of a Financial Interest

   2. Defenses

      E. Penalties

1. INTRODUCTION

   The phrase "conflict of interest legislation" describes the volumes of legislation Congress passed in the post-Watergate era to prevent and punish corruption of our public officials.(1) This article examines 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 an 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)

2. BRIBERY AND ILLEGAL GRATUITIES

   While not always characterized as a conflict of interest provision,(9) bribery has been part of the criminal conflict of interest statute since 1961.(10) The prohibition against bribery also criminalizes certain gratuities given to or requested by federal public officials.(11)

   The primary difference between bribery and illegal gratuities is that bribery requires a corrupt intent,(12) while an illegal gratuity does not.(13) 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.(14) The gratuity guidelines deal with situations in which the offender intends the gift as "a reward for actions the public official has already taken or is already committed to take" as opposed to situation where tire defendant intends to influence a government official to use his official position improperly.(15) An exchange involving a former official therefore can only be an illegal gratuity, and not a bribe.(16) Due to the similarity of these two offences, 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.(17)

   A. Elements of the Bribery Offense

   To sustain a bribery conviction, the government must show (1) a benefit or anything of value; (2) accuring to a public official; (3) with corrupt intent (4) to influence the public official, or to be influenced if the defendant is the official, (5) in carrying out an official act.(18)

   1. Thing of Value

      Where the alleged bribe is something that is not clearly money, there may be some question as to whether a "thing of value" is exchanged.(19) The term "thing of value" is broadly construed, focusing on the value which the defendant subjectively attached to the items received.(20) Where a defendant incorrectly assesses the value of an item, it may still be "of value" for purposes of the statute.(21) Further, an item may be a "thing of value" regardless of whether it is offered or received in the context of a gratuity or a bribe.(22) Courts have found the promise of future employment,(23) shares of stock,(24) and unsecured, quickly arranged loans(25) all to be "things of value." Offering information in return for favors does not constitute offering a "thing of value."(26)

   2. Federal Public Official

      The defendant may be either a public official or one who bribes a public official.(27) In Dixson v. United States,(28) the Supreme Court defined federal "public official" to apply to persons who are responsible for carrying out tasks delegated by a federal agency, who are subject to substantial federal supervision, and who are in a positron of responsibility, acting for or on behalf of the Federal Government in administering expenditure of federal funds.(29)

      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 Court's decision in Dixson supports the broad application of [sections]201. The "public official" question is one of law for the court to decide.(32) Courts have found an Army private,(33) a building services manager for a Federal Reserve Bank,(34) an intake official for a federal employment program,(35) an executive director of a city housing authority who administered federal funds,(36) a U.S. Customs official,(37) and postal employees(38) within the definition of "public official."

      An individual's status as a "mere 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.(39) Likewise, classification as a public official does not depend on the management or distribution of federal funds.(40) Rather, an individual may be a public official based on his or her "federal responsibilities."(41)

   3. Corrupt Intent

      While the bribery statute does not define the term "corruptly," case law makes clear that the bribery offense requires a quid pro quo.(42) 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."(43)

      In order to convict a defendant for bribery, the government must prove that the accused intended to bribe the public official.(44) A defendant lacks an intent to influence where, despite knowing about payments, the defendant does not know they were intended as bribes.(45) The jury must also have an opportunity to consider whether the payment in question was intended for a legal purpose, such as contributing to a campaign or settling a tax liability.(46) Intending to make a campaign contribution does not constitute bribery, even though the contributor often hopes that his contribution will garner some favorable reaction. Absent a showing that a payment is made in exchange for a specific promise to perform or not perform a specific official act, a campaign contribution will not be viewed as a bribe.(47)

   4. Influence of a Public Official

      One commits bribery when he accepts something of value in return for being influenced in the performance of any of official act,(48) or when he offers something of value to an official for the purpose of influencing government.(49) In proving this element, the government must show that the individual actually offered or received a bribe.(50) Courts recognize that there may sometimes be "dual purposes" for payments.(51) However, "a valid purpose that partially motivates a transaction does not insulate participants in an unlawful transaction from criminal liability."(52) For instance, the jury may base a "guilty" decision on circumstantial evidence of a quid pro quo, notwithstanding alternative legal reasons for payments.(53)

   5. Official Act

      In evaluating the "official act" element of bribery, courts have rejected the notion that a bribe is not received when the briber over-estimates the bribee's abilities or authority.(54) A bribe occurs even where the bribee misrepresents his authority and ability to accomplish the official act,(55) the bribee could accomplish the act, but only illegally as a violation of state law,(56) or where the official act was not within the bribee's "lawful duties."(57) Despite this broad interpretation of the official act element, 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."(58)

      B. Defenses

      Where the government successfully demonstrates that each of the bribery elements is met, the defendant may still raise a number of defences. The remainder of this section details common, though seldom successful, defences, including entrapment and its variations, outrageous government conduct, and duress or coercion.

   1. Entrapment

      Perhaps because of the inevitable involvement of an agent of the government, defendants frequently claim entrapment in bribery cases. In Jacobson v. United States,(59) the Supreme Court recently reviewed the requirements for entrapment in a non-bribery case, reaffirming the required elements for entrapment previously established in Sorrels v. United States(60) and Sherman v. United States.(61) While the government may provide the opportunity to commit a crime without it being entrapment,(62)

      [g]overnment agents may not originate a criminal design, implant in an

      innocent person's mind tire disposition to commit a criminal act, and then

      induce commission of the crime so that the Government may prosecute ....

      When 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.(63)

      When a defendant claims entrapment...