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. Duress or Coercion 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 Gratuity Offenses a. Offenses Involving Public Officials i. More than 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 Offense a. Coverage b. Representative or Agent c. Direct and Substantial Interest of the United States d. Participated "Personally and Substantially" in "Particular Matter" e. 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 I. INTRODUCTION
Congress has enacted a number of statutes that seek to prevent and punish corruption by public officials. (1) The discussion that follows examines the elements of, defenses to, and penalties for 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 outside salaries. (8) Section III concludes by discussing the penalties that the United States Sentencing Guidelines ("Guidelines") authorize for persons who make criminal use of a public office for private gain. (9)
BRIBERY AND ILLEGAL GRATUITY
In 1962, Congress enacted a package of conflict of interest legislation which 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. The discussion that follows describes the four elements of the bribery and illegal gratuity offenses, and then considers potential defenses and sanctions.
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. (12) After relevant definitions are .set forth in [section] 201(a), (13) [section] 201(b) enumerates the dements of bribery. (14) 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). (15)
Similarly, the dements of the illegal gratuity offense are set forth in [section] 201(C). (16) 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." (17)
The critical distinction between bribery and illegal gratuity is that the former requires proof of intent, while the latter does not. (18) Bribery demands "a specific intent to give or receive something of value in exchange for an official act," (19) while an illegal gratuity "requires only that the gratuity be given ... 'for or because of' an official act." (20)
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. (21) 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. (22)
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." (23) The term "thing of value" has been broadly defined by courts (24) to include monetary and other tangible payments (25) as well as intangible benefits. (26) Among items courts have found to be "things of value" are promises of future employment, (27) vacation trips, (28) illegal immigration documents,(2 9) shares of stock, (30) and unsecured, quickly arranged loans. (31) Any item that the recipient subjectively believes to have value qualifies, (32) even if it has little or no objective commercial worth. (33)
The thing of value, whether a connected bribe or an illegal gratuity, may be conveyed to the public official either before or after the official act takes place. (34) Although most bribes are paid in advance, "it is only logical that in certain situations the bribe will not actually be conveyed until the act is done." (35) Similarly, while gratuities typically are paid after the fact, they may, "[b]y this same logic ... be conveyed before the occurrence of the act (so long as the payor believes the official has already committed himself to the action)." (36)
Because [section] 201(c)'s bar against gifts or promises of "things of value" extends to testimonial witnesses, (37) 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 conflict, as the federal circuits now unanimously agree that the witness gratuity prohibition does not apply to federal prosecutors' use of immunity and leniency. (39) In describing prosecutors as the "alter ego of the United States," (40) and as an "inanimate entity" (41) 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." (42) A number of circuits have applied this reasoning to immunize prosecutors' payments to informants, (43) decisions not to prosecute, (44) and offers of immigration benefits. (45) This reasoning has been extended to civil trial testimony as well. (46)
Public Official or Witness
The bribery and illegal gratuity offenses set forth in [section] 201 are directed at "public official[s]," "person[s] who have been selected to be public official[s]," or "witness[es]." (47) The illegal gratuity offense applies to "former public officials" as well. (48)
Section 201(a)(1) defines "public official" as the following:
Member of Congress, Delegate, or Resident Commissioner, either before or after such official has qualified, or an officer or employee or person acting for or on behalf of the United States or any department, agency or branch of Government thereof, including the District of Columbia, in any official function, under or by authority of any such department, agency, or branch of Government, or a juror. 18 U.S.C. [section] 201(a)(1). Section 201(a)(2) defines a "person who has been selected to be a public official" as "any person who has been nominated or appointed to be a public official, or has been officially informed that such person will be so nominated or appointed." (49)
The statute defines "witness" as a person who testifies at "a trial, hearing, or other proceeding." (50) This definition includes proceedings before any court, any committee of the Senate, House, or both, "or any agency, commission, or officer authorized by the laws of the United States to hear evidence or take testimony." (51)
Based on its understanding of congressional intent, the Supreme Court and lower federal courts have interpreted the term "public official" broadly. (52) According to the Court, "the proper inquiry is not simply whether the person had signed a contract with the United States or agreed to serve as the Government's agent, but rather whether the person occupies a position of public trust with official federal responsibilities." (53) Because state, county, municipal, and private sector employees often have official responsibilities for implementing federal programs or policies, the Court's definition captures both federal and non-federal officials. (54)
The actual ability or authority of an official to achieve the objective(s) of the offeror of a bribe is irrelevant to his or her status as a "public official." (55) Accordingly, an official may be considered a "public official" within the meaning of [section] 201(a)(1) even where the offeror of a bribe has misperceived, or where the official himself has misrepresented, the scope of his or her authority. (56) Courts have also held that undercover agents...
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