A race against the clock: restraints imposed by the statute of limitations on the federal prosecution of public corruption.

Author:Simmons, James R., Jr.


On September 4, 2014, a jury found former Virginia Governor Bob McDonnell and his wife, Maureen, guilty of committing a variety of public corruption crimes, including conspiracy, bribery, and extortion. (1) The convictions represented the culmination of investigations and trial preparations that lasted several years. In many ways, the prosecution of the McDonnells provides insight into the unique circumstances that often surround public corruption investigations and the difficulties that authorities face in discovering that wrongdoing has occurred.

Authorities were first alerted to potential criminal activity by a seemingly random source: the couple's chef. In 2012, Virginia State Police officers began investigating the firing of the executive chef of the governor's mansion for allegedly stealing food. (2) As they pursued the case against him, officers learned that a businessman, Jonnie Williams, had paid $15,000 to cover the catering costs of the McDonnells' daughter's wedding the year before. (3) After discovering that the couple had not properly disclosed this gift, authorities began to probe more deeply into the couple's relationship with Williams. Investigators learned that the McDonnells had accepted over $165,000 in loans and luxury gifts in exchange for promoting Williams's dietary supplements company. (4) Ultimately, Mr. McDonnell was convicted on eleven counts while Mrs. McDonnell was convicted on nine counts resulting from their relationship with Williams. (5) They were sentenced to two years in prison (6) and one year and one day in prison, (7) respectively.

The downfall of the McDonnells, based on an initial tip from their chef, shows that the discovery of public corruption is often fortuitous. By its nature, public corruption is highly secretive and frequently unreported. (8) Participants within the schemes are typically highly sophisticated actors who strive to avoid detection. (9) The public officials who are involved are often intimately familiar with the corruption laws at issue, as well as potential loopholes, because the legislative bodies to which they belong often crafted the criminal statutes. (10) The victims of public corruption--constituents and taxpayers--may not easily recognize that the redirection of officials' attention and the increased costs and low quality of public works are the result of specific criminal acts of corruption. (11) To become alerted of wrongdoing, authorities must often rely on tips from third parties--such as the chef in the McDonnells' case--since evidence of corruption is seldom readily apparent. Third parties that report wrongdoing typically include auditing, law enforcement, and intelligence services, (12) journalists, (13) cooperating witnesses to the questionable dealings, (14) or whistleblowers who risk their positions and reputations to come forward with allegations of misconduct. (15)

In situations when public corruption is actually discovered, investigating the alleged wrongdoing often requires more time-consuming methods and resources than ordinary criminal investigations. Because of the high profiles of the figures being investigated, authorities must act with particular sensitivity to avoid any unwarranted publicity that may affect officials' ability to serve the public, particularly before charges are filed. (16) Additionally, as is common in many white-collar crimes, the evidence at issue in public corruption cases often includes significant amounts of paperwork. (17) Assessing the documents for relevance to the case and determining whether there is sufficient evidence of wrongdoing to warrant additional investigation is often a highly time-consuming process.

Several institutional challenges have further complicated the difficulties of investigating alleged public corruption in a timely fashion. In the aftermath of the terrorist attacks of September 11, 2001, the FBI and other federal law enforcement agencies shifted their focus from investigating white-collar criminal activity to counterterrorism prevention. (18) In practice, this redirection of attention reduced the manpower and funding available to investigate allegations of public corruption. Recent budgetary constraints--such as the $1.67 billion reduction of the budget of the Department of Justice in the fiscal year 2013 as part of the government sequestration (19)--have undoubtedly made such investigative tasks more difficult as well. Following wrongdoing that prosecutors committed in a previous public corruption investigation, the Department of Justice instituted a new internal policy suggesting the need for even more thorough and sensitive investigations of allegations before charges are pursued. (20) Abiding by this guidance has likewise added to the time required before indictment.

The increased challenges in investigating and prosecuting public corruption have coincided with a dramatic increase in public pressure to hold officials accountable for their wrongdoing. (21) One possible way to alleviate some of these challenges is to increase the time available for investigators and prosecutors to bring charges for public corruption offenses. The federal statute of limitations for public corruption crimes currently stands at five years. (22) Reducing the time pressure may also produce more thorough investigations. With more time available, authorities may feel less rushed in pursuing allegations. In so doing, they may avoid pursuing innocent suspects in order to meet the five-year window, and prevent negative publicity, marred reputations, and lost positions.

Prosecutors have long recognized the inadequacy of five years and have devised strategies in charging suspects to circumvent the restrictions imposed by the statute of limitations. (23) Congress, too, has been aware of these concerns for several years, as both the House and the Senate have considered proposals to extend the statute of limitations for public corruption crimes. (24) This Note argues that the federal statute of limitations for public corruption crimes should be extended to at least six years. Using a case study of a specific public corruption offense, bribery, (25) this Note examines the law as it currently stands, evaluates the existing difficulties the statute of limitations has imposed on prosecutors and investigators, and explores a possible way to minimize these challenges by extending the statute of limitations.

Part I of this Note examines the statutes at issue. It first looks at the two criminal statutes for bribery, 18 U.S.C. [section] 201 and 18 U.S.C. [section] 666, and then reviews the general federal statute of limitations, 18 U.S.C. [section] 3282. Part II surveys prosecutors' attempts to circumvent the statute of limitations by characterizing the criminal activity as a continuing offense or through classification of bribery as part of a continuing course of criminal conduct. It analyzes how courts have reacted to the use of these strategies and describes the circuit split that has developed regarding the continuing course of criminal conduct doctrine. Part III argues that prosecutors, through their unique characterization of bribery in each case, should not have the power to effectively extend the statute of limitations. Instead, Congress should act explicitly by passing a statute that provides additional time for public corruption prosecution. Part IV assesses Congress's repeated failures to extend the statute of limitations and examines its shortcomings in enacting reforms for how public corruption is prosecuted. Finally, Part V proposes a strategy to gain passage for this change by separating the statute of limitations extension from the more robust and controversial legislative proposals Congress previously considered. This Part situates the proposed extension within a history of other statute of limitations extensions Congress passed in recent decades upon recognizing the unique challenges prosecutors face.


    Prosecutors rely on a variety of criminal statutes when pursuing charges for public corruption. (26) Most often, the offenses include: bribery, (27) illegal gratuities, (28) extortion, (29) federal program fraud and bribery, (30) honest services fraud, (31) criminal conflict of interest, (32) kickbacks, (33) false statements, (34) false claims, (35) theft of government property, (36) theft by government officials, (37) conspiracy, (38) and violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), (39) among others. For the sake of convenience, this Note focuses on bribery charged under 18 U.S.C. [section] 201 and 18 U.S.C. [section] 666. These statutes will serve as case studies to demonstrate the difficulties investigators and prosecutors face in pursuing public corruption charges within the five-year statute of limitations imposed by 18 U.S.C. [section] 3282.

    1. 18 U.S.C. [section] 201

      Bribery charged under 18 U.S.C. [section] 201 criminalizes actions committed by both the giver and receiver of the bribe, and targets both federal public officials and witnesses. (40) To prove bribery under 18 U.S.C. [section] 201, the government must demonstrate that: (i) a thing of value was given, offered, agreed, or promised (or was demanded, sought, received, agreed, or accepted by the recipient), (ii) to a present or future federal public official (or witness), (iii) for an "official act," (iv) with a corrupt intent or an intent to influence (or for the recipient to be influenced) (41) The Supreme Court has held that for bribery to be charged under 18 U.S.C. [section] 201, "there must be a quid pm quo--a specific intent to give or receive something of value in exchange for an official act." (42) Bribery differs from gratuity charged under 18 U.S.C. [section] 201 in that bribery requires a stricter connection between the thing of value and the official act as a quid pro quo. (43) For a gratuity, the connection can be looser. For example...

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