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 One Bribe 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 passed a number of statutes to prevent and punish corruption by public officials. (1) This Article discusses the elements, defenses, and penalties of several of those statutes.
Section II of this Article examines the elements of, defenses to, and penalties for bribery (2) and illegal gratuity (3) offenses. Section III begins by exploring the elements of and defenses to an unauthorized compensation offense; (4) it then examines the provisions imposing certain limitations on the activities of government officers and employees both during (5) and after (6) the period of their employment. Section III also analyzes the statutory provisions dealing with participation in activities in which an 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
Congress codified prohibitions on bribes and illegal gratuities with the federal criminal conflict of interest statute in 1962, (10) forming "an intricate web of regulations ... governing the acceptance of gifts and other self-enriching actions by public officials." (11) Nevertheless, prohibitions on bribes and illegal gratuities are not characterized as conflict of interest provisions. (12)
Part A of this section describes the four elements of the bribery and illegal gratuity offenses; Part B discusses several defenses; Part C presents the sanctions for these offenses.
Elements of the Bribery and Illegal Gratuity Offenses
Section 201 of Title 18 of the United States Code governs the offenses of bribery and illegal gratuity. (13) Sections 201(a)(1)-(3) define the terms "public official," "person who has been selected to be a public official," and "official act," respectively. (14)
Section 201 (b)(l) sets forth the elements of a bribery offense applicable to the bribe giver, and Section 201(b)(2) sets forth the elements applicable to the bribe recipient. (15) To prove this offense, the government must establish the following: (i) a thing of value was given, offered, or promised to (or 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). (16)
Section 201(c)(1)(A) sets forth the elements of an illegal gratuity offense applicable to the gratuity giver, and [section] 201(c)(1)(B) sets forth the elements applicable to the gratuity recipient. (17) To prove an illegal gratuity offense, the government must establish the following: (i) a thing of value was given, offered, or promised to (or 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." (18)
The critical distinction between bribery and illegal gratuity lies in the element of intent. (19) Bribery demands "a specific intent to give or receive something of value in exchange for an official act." (20) In contrast, an illegal gratuity has a lesser intent element; it "requires only that the gratuity be given ... 'for or because of' an official act." (21)
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. (22) Second, whereas the illegal gratuity offense only involves attempts to influence "official acts," bribery applies also to attempts to influence the commission of a fraud against the United States or any act in violation of a lawful duty. (23)
Thing of Value
For a bribery or illegal gratuity offense to occur under [section] 201(b) or (c)(1), a giver must provide a recipient with a "thing of value." (24) Courts define the term "thing of value" broadly, (25) including both monetary and other tangible payments (26) and intangible benefits. (27) Among the items the courts have found to be "things of value" are the promise of future employment, (28) vacation trips, (29) illegal immigration documents, (30) shares of stock, (31) and unsecured, quickly arranged loans. (32) Any item that the recipient subjectively believes has value qualifies, (33) even one with little or no objective commercial value. (34)
Section 201 (c) bars gifts or promises of a "thing of value" to witnesses as well as public officials. (35) Accordingly, courts have had to confront the question of whether the statute applies to federal prosecutors and therefore to the "things of value"--specifically, immunity, leniency, and plea bargaining--that they use to obtain testimony. Despite an earlier conflict, (36) the federal circuits now unanimously agree that the witness gratuity prohibition does not apply to federal prosecutors' use of immunity and leniency. (37) The Tenth Circuit described prosecutors, as the "alter ego of the United States," (38) an "inanimate entity," (39) not covered by the statute's terms. To hold otherwise, the Tenth Circuit continued, would be "a diminution of sovereignty not countenanced in our jurisprudence." (40) A number of circuits have applied this reasoning to cover prosecutors' payments to informants (41) and decisions not to prosecute. (42) This reasoning has been extended to civil trial testimony as well. (43)
The thing of value--be it a bribe or an illegal gratuity--may be conveyed to the public official either before or after the official act takes place. (44) 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." (45) 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." (46)
Public Official or Witness
Section 201 limits bribery and illegal gratuity offenses to those involving receipt of a thing of value by a "public official," a "person who has been selected to be a public official," or a "witness." (47) The illegal gratuities 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. (49) Section 201(a)(2) defines "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." (50)
The statute defines "witness" as a person who testifies at "a trial, hearing, or other proceeding." (51) 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." (52)
Based on its understanding of congressional intent, the Supreme Court and lower courts have interpreted the term "public official" broadly. (53) According to the Supreme 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." (54) Because state, county, municipal, and private sector employees often have official responsibility for implementing federal programs or policies, the Court's definition captures both federal and non-federal officials. (55)
An official's actual ability or authority to achieve the bribe giver's objective is irrelevant to the recipient's status as a "public official." (56) Therefore, if the bribe giver misperceives the scope of the official's...
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