Public corruption.

AuthorDwyer, Logan
PositionI. Introduction through III. Criminal Conflict of Interest A. Unauthorized Compensation 1. Elements of the Offense d. Intent, p. 1549-1576 - Annual Survey of White Collar Crime
  1. INTRODUCTION II. BRIBERY AND ILLEGAL GRATUITY A. Elements of the Bribery and Illegal Gratuity Offenses 1. Thing of Value 2. Public Official or Witness 3. Official Act 4. Intent a. Bribery b. Illegal Gratuity B. Defenses 1. Entrapment 2. Due Process 3. The Speech or Debate Clause 4. Other Defenses C. Penalties 1. Bribery Offenses a. Offenses Involving Public Officials i. More than One Bribe ii. Value of Greater than Five Thousand Dollars iii. High-Level and Sensitive Positions iv. Immigration Official v. Facilitating Other Offenses vi. Unknown Value or Incommensurate Effect b. Offenses Involving Witnesses 2. Illegal Gratuities Offenses.. a. Offenses Involving Public Officials i. More than One Illegal Gratuity ii. More than Five Thousand Dollars iii. High-Level or Sensitive Position iv. Immigration Official b. Offenses Involving Witnesses III. CRIMINAL CONFLICT OF INTEREST A. Unauthorized Compensation 1. Elements of the Offense a. Coverage b. Particular Matter c. Compensation d. Intent e. Forum 2. Defenses B. Limitations on Activities of Government Officers and Employees 1. Coverage 2. "Particular Matter" and "Agency" 3. Exceptions C. Post-Employment Activities 1. Elements of the Offenses Under [section] 207 a. Coverage b. Representative or Agent c. Direct and Substantial Interest of the United States d. Knowledge D. Acts Affecting Financial Interest 1. Elements of the Offense a. Officer or Employee b. Participated "Personally and Substantially " in "Particular Matter" c. Knowledge of Financial Interest 2. Defenses E. Illegal Outside Salaries for Federal Employees F. Penalties IV. THE HONEST-SERVICES DOCTRINE A. History of the Honest-Services Doctrine 1. Shushan and the Early Honest-Services Cases 2. McNally 3. Section 1346 B. The Current Honest-Services Doctrine 1. Skilling and Black 2. Elements of the Honest-Services Doctrine a. Defraud of Honest Services b. Bribes and Kickbacks I. INTRODUCTION

    Congress has enacted a number of statutes designed to deter and punish acts of corruption involving public officials. (1) The discussion that follows examines several of the crimes enumerated by those statutes. Section II of this Article examines the elements of, defenses to, and penalties for the federal bribery (2) and illegal gratuity (3) offenses. Section III explores the elements of and defenses to the unauthorized compensation offense (4) and examines provisions limiting the activities of government officers and employees during (5) and after (6) their terms of employment. Section III also analyzes the statutory provisions governing participation by government officials in activities in which the official has a financial interest, (7) as well as improper acceptance of certain outside compensation. (8) Finally, Section IV addresses the honest-services doctrine and the Supreme Court's recent limitation of the doctrine's application to fraudulent deprivation of money or property. (9)


    In 1962, Congress enacted a package of conflict of interest legislation that significantly revised the federal bribery statute. (10) These revisions laid the foundation for "an intricate web of regulations ... governing the acceptance of gifts and other self-enriching actions by public officials," (11) including statutory prohibitions on bribery and illegal gratuity. Bribery requires specific intent to give something of value in exchange for an official act, (12) while illegal gratuity only requires something be given for or because of an official act. (13) The discussion that follows describes the four elements of the bribery and illegal gratuity offenses and then considers potential defenses and sanctions.

    1. Elements of the Bribery and Illegal Gratuity Offenses

      Section 201 of Title 18 of the U.S. Code governs the offenses of bribery and illegal gratuity. (14) Relevant definitions are set forth in [section] 201(a), (15) while [section] 201(b) enumerates the elements of bribery. (16) To prove bribery, the government must generally establish that: (i) a thing of value was given, offered, or promised to (or, in the case of a recipient, demanded, sought, received, or accepted by); (ii) a present or future public official; (iii) for an "official act"; (iv) with corrupt intent or intent to influence (or be influenced). (17)

      Similarly, the elements of the illegal gratuity offense are set forth in [section] 201(c). (18) To prove the offense of illegal gratuity, the government must establish that: (i) a thing of value was given, offered, or promised to (or, in the case of a recipient, demanded, sought, received, or accepted by); (ii) a present, past, or future public official; (iii) "for or because of any official act performed or to be performed by such public official." (19)

      The critical distinction between bribery and illegal gratuity is that the former requires proof of intent while the latter does not. (20) Bribery demands "a specific intent to give or receive something of value in exchange for an official act," (21) while an illegal gratuity "requires only that the gratuity be given ... 'for or because of' an official act." (22)

      In addition to intent to influence, there are two other notable differences between the bribery and illegal gratuity offenses. First, while both offenses apply to present and future public officials, only the illegal gratuity offense applies to former public officials. (23) Second, while the illegal gratuity offense only involves attempts to influence "official acts," bribery also applies to attempts to influence the commission of a fraud against the United States or any act in violation of a lawful duty. (24)

      1. Thing of Value

      For an act to constitute bribery or illegal gratuity under [section] 201(b) or (c)(1), an individual must provide a recipient with a "thing of value." (25) The term "thing of value" has been broadly defined by courts (26) to include monetary and other tangible payments (27) as well as intangible benefits. (28) Among items courts have found to be "things of value" are promises of future employment, (29) overseas travel, (30) sexual acts, (31) illegal immigration documents, (32) shares of stock, (33) life insurance policies, (34) and unsecured, quickly arranged loans. (35) Any item that the recipient subjectively believes to have value qualifies, (36) even if it has little or no objective commercial worth. (37)

      The "thing of value" may be conveyed to the public official either before or after the official act (38); illegal gratuities are typically paid after the fact, but they may "be conveyed before the occurrence of the act (so long as the payor believes the official has already committed himself to the action)." (39)

      Because [section] 201(c)'s bar against gifts or promises of "things of value" extends to testimonial witnesses, (40) courts have been forced to consider whether the prohibition applies to federal prosecutors, who may use various procedural enticements, e.g., immunity, leniency, and plea bargains, as things of value with which to obtain testimony. Despite an earlier split, (41) the federal circuits now unanimously agree that the witness gratuity prohibition does not apply to federal prosecutors' use of immunity and leniency. (42) In describing prosecutors as the "alter ego of the United States," (43) and as an "inanimate entity" (44) outside the reach of the statutory prohibition, the Tenth Circuit reasoned that to hold otherwise would be "a diminution of sovereignty not countenanced in our jurisprudence." (45) A number of circuits have applied this reasoning to immunize prosecutors' payments to informants, (46) decisions not to prosecute, (47) and offers of immigration benefits. (48) This...

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