Federal criminal conflict of interest.

• Author: Ravitz, Randall E.
• Position: Thirteenth Survey of White Collar Crime

1. INTRODUCTION

   The term "conflict of interest legislation" encompasses the numerous statutes passed by Congress, largely in the post-Watergate era, to prevent and punish corruption of our public officials.(1) Section I of this Article introduces these topics. Section II reviews the offenses of offering or accepting a bribe or improper gratuity. An examination is made of the distinctions between bribery(2) and illegal gratuities,(3) as well as the elements of and defenses to the charge of bribery. This is followed by a discussion of the prohibitions against government employees improperly accepting outside salaries, and the penalties available for the offenses covered. Section III begins with an analysis of the provisions regarding unauthorized compensation,(4) including the elements of and defenses to the offense. It then examines the provisions prohibiting members of Congress from practicing in the United States Court of Federal Claims or the United States Court of Appeals for the Federal Circuit, and those prohibiting government employees from prosecuting claims against the government or representing others before a listed selection of government forums.(5) Section III continues by discussing those provisions dealing with post-employment lobbying and representation,(6) participating in activities in which an official has a financial interest,(7) and improperly accepting outside salaries.(8) It concludes with a coverage of the sanctions that may be imposed on public officials and private citizens who make criminal use of a public office for private gain.(9)

2. BRIBERY AND ILLEGAL GRATUITIES

   While not always characterized as a conflict of interest provision,(10) prohibition of bribery has been part of the criminal conflict of interest statute since 1961.(11) That prohibition also criminalizes certain gratuities given to or requested by federal public officials.(12)

   The primary difference between bribery and exchange of illegal gratuities is that bribery requires a corrupt intent,(13) while an illegal gratuity does not.(14) Illegal gratuity charges 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"(15) as opposed to situations where the defendant intends to influence an official to use his position in the future in a way that he otherwise would not.(16) An exchange involving a former official, therefore, can only be an illegal gratuity, and not a bribe.(17) Due to the similarity of these two offenses, defendants may be charged with both.(18) In some cases, a defendant might plead the offering of an illegal gratuity as a defense to a bribery charge, claiming a lack of the requisite corrupt intent.(19) Part A describes the five elements of the bribery offense; Part B discusses several defenses; Part C reviews the offense of illegal outside salaries (gratuities) for federal employees; and Part D presents the sanctions for these offenses.

   A. Elements of the Bribery Offense

   To sustain a bribery conviction, the government must demonstrate that five elements are present: (1) a benefit or thing of value; (2) accruing to a federal 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.(20)

   1. Benefit or 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" was exchanged.(21) The term "thing of value" is broadly construed, focusing on "the value which the defendant subjectively attache[d] to the items received."(22) Where a defendant incorrectly assesses the value of an item, it may still be "of value" for purposes of the statute.(23)

      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. Courts have found the promise of future employment,(24) shares of stock,(25) and unsecured, quickly arranged loans(26) all to be "things of value." However, offering information in return for favors does not constitute offering a "thing of value."(27)

   2. Federal Public Official

      Charges may be brought against either a public official or one who bribes a public official.(28) In Dixson v. United States,(29) the Supreme Court defined a federal "public official" as a person who is responsible for carrying out tasks delegated by a federal agency, who is subject to substantial federal supervision, and who is in a position of responsibility, acting for or on behalf of the Federal Government in administering the expenditure of federal funds.(30)

      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."(31) 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."(32)

      The "public official" question is a matter of law for the court to decide, and the Dixson Court's decision supports a broad application of [sections] 201.(33) An Army private,(34) a building services manager for a Federal Reserve Bank,(35) a District of Columbia corrections officer,(36) an "eligibility technician" for a municipal housing authority who administered federal funds,(37) and postal employees(38) have all been found by courts to fall 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 do 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

      Case law makes clear that the bribery offense requires a quid pro quo.(42) In addition, intent to influence "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 convicta defendant for bribery, the government must prove that payments by the accused were intended to bribe the public official.(44) defendant lacks the requisite intent where he does not intend such payments 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) 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

      The act of accepting(48) or offering(49) something of value in return for the performance of an official act constitutes bribery. To prove this element, the government must show that the individual actually offered or received a bribe.(50) Courts recognize that payments made by private parties to public officials may have "dual purposes."(51) However, "a valid purpose that partially motivates a transaction does not insulate participants in an unlawful transaction from criminal liability."(52) For instance, a jury can convict for bribery based solely on circumstantial evidence of quid pro quo, notwithstanding alternative legal reasons for payments.(53)

   5. Official Act

      Courts have rejected the notion that a bribe is not received when the bribee misperceives the public official's ability or authority to perform an official act.(54) A bribe occurs where the recipient misrepresents his authority and ability to perform the official act,(55) where the act was not within his lawful duties(56) or where he could perform the act only by violating state law.(57) However, not every inducement will constitute bribery; the "briber must still have intended that the federal employee utilize her employee status to accomplish the illegal goals."(58)

      B. Defenses

      This Part of the Article details commonly raised, though seldom successful, defenses. These include: (1) entrapment and its variations; (2) "outrageous government conduct; (3) duress or coercion; and (4) other defenses.

   1. Entrapment

      Defendants frequently claim entrapment. In Jacobson v. United States,(59) the Supreme Court reviewed the requirements for entrapment in a non-bribery case, reaffirming those previously established in Sorrels v. United States(60) and Sherman v. United States.(61) While government agents may act to provide the opportunity to commit a crime,(62) the Jacobson court held that:

      [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

      reasonable doubt that the defendant was disposed to commit the criminal act

      prior to first being approached by Government agents.(63)

      Where the defendant can show entrapment by demonstrating government inducement,(64) the burden then shifts to the prosecution to show that the defendant was "predisposed to violate the law before the [g]overnment intervened."(65) Some circuits have recognized a defense of vicarious or derivative entrapment(66) under special circumstances.(67) However, entrapment does not occur where a government agent merely cooperates with the defendant in the course of an undercover investigation.(68)

      The following factors are relevant in determining predisposition: (1) the character or reputation of the defendant; (2) whether the...