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Bribery 101

"Bribery" and "quid pro quo" are phrases that are in the news today, but we won't be talking about Presidential politics today. This survey looks at current federal bribery law as codified in the United States Code (generic, common law, or historical "bribery" may be more relevant in that other context).

Before we get started, you may wish to look at the previous "101" posts:

Mail and wire fraud part one (jurisdictional elements)
Mail and wire fraud part two (elements in common)
Obstruction of justice
Hobbs Act
Travel Act
Money Laundering

The principal bribery statutes are found in 18 U.S.C. chapter 11, especially § 201, which specifies eight individual crimes, four of them involving witnesses, and four involving public officials.

There are other federal bribery statutes, e.g., bankruptcy bribery, (18 U.S.C. § 152(6)), bribery involving financial institutions (§§ 215 and 225), federal program fraud (§ 666), obstruction of criminal investigations by bribery (1510), Hobbs Act (1951), Travel Act 1952 and pension and welfare bribery (1954), but the principles and definitions are pretty much the same throughout the federal criminal code.

So, to simplify our discussion, let's take a close look at the four § 201 crimes involving public officials:

  • Bribery of a public official (§ 201(b)(1))
  • Receiving bribe by a public official (§ 201(b)(2))
  • Illegal gratuity to a public official (§ 201(c)(1)(A))
  • Receiving an illegal gratuity by a public official (§ 201(c)(1)(B))

Bribery of a public official (§ 201(b)(1)) takes place when something of value is promised, given, or offered to influence an official act. Receiving a bribe (§ 201(b)(2)) takes place when something is demanded, sought, or received in return for being influenced in the performance of an official act. In each case, the act must be done corruptly.

A person offers a thing of value to a public official corruptly if the person acts knowingly and intentionally with the purpose either of accomplishing an unlawful end or unlawful result or of accomplishing some otherwise lawful end or lawful result influenced by the offer of the thing of value to the public official. Mod. Crim. Jury Instr. 3rd Cir. 6.18.201B1-3 (2017).

Giving or receiving a gratuity (§ 201(c)(1)) is criminalized if it is done for or because of an official act that had been performed or was going to be performed. There need not be proof that the act was done corruptly.

Bribery requires intent "to influence" an official act or "to be influenced" in an official act. An illegal gratuity requires only that the gratuity be given or accepted "for or because of" an official act.

In other words, for bribery there must be a quid pro quo—a specific intent to give or receive something of value in exchange for an official act. An illegal gratuity, on the other hand, may constitute merely a reward for some future act that the public official will take (and may already have determined to take), or for a past act that he has already taken.

United States v. Sun-Diamond Growers of California, 526 U.S. 398, 404-05 (1999).

Nevertheless, illegal gratuity cases require proof of

a link between the offer or giving of the thing of value and a specific official act for or because of which it was offered or given. It is not sufficient that the gratuity was offered or given because the public official had authority over matters in which the defendant had an interest, or that the gratuity was offered or given solely for social reasons or friendship. The government, however, does not need to show that the gratuity influenced or was intended to influence the official act; it is sufficient if the gratuity was a reward for some future act that the public official would later take (and may already have determined to take), or for a past act that (he)(she) had already taken.

Mod. Crim. Jury Instr. 3rd Cir. 6.18.201C1A (2017).

An official act is a decision or action on a question, matter, cause, suit, proceeding or controversy that involves

  • "a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee." McDonnell v. United States, 136 S.Ct. 2355, 2371-72 (2016).
  • It must be something specific and focused that is “pending” or “may by law be brought” before a public official. Id. at 2372.
  • The public official must make a decision, take an action on it, or agree to do so. Id.

The decision or action could be using his or her official position to exert pressure on another official to perform an "official act," or advising another official, knowing or intending that such advice will form the basis for an "official act" by another official. Id. But "[s]etting up a meeting, talking to another official, or organizing an event (or agreeing to do so)—without more—does not fit that definition of 'official act.'" Id.

(12/01/19) (permalink)

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