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Public Corruption

Government fraud, bribery, procurement fraud, extortion, abuse of public authority, and kickbacks are among the charges that an individual accused of public corruption may face.  A public official who receives a payment, favor, or anything of value in exchange for acting in a particular manner while fulfilling their public duties can be prosecuted under the public corruption statutes, including 18 USCS § 201 (2005), 18 USCS § 210 (2005), and 18 USCS § 211 (2005). The high profile cases of former Congressman Randy “Duke” Cunningham and Jack Abramoff exemplify the seriousness of a public corruption charge.  Cunningham, for example, pleaded guilty of tax evasion, mail fraud, wire fraud, conspiracy to commit bribery, and tax evasion. Ed Henry and Mark Preston. California Republican admits selling influence for $2.4 million. CNN. Nov. 28, 2005, posted 10:09pm EST. www.cnn.com.

18 USCS § 201 (2005)

The Crime
It is a crime under section 201(b) for a person to

  • directly or indirectly "corruptly" give, offer, or promise anything of value to a public official (former, current, or future) with the intent
    • to influence an official act,
    • to influence a public official to commit a fraud on the United States, or
    • to influence a public official to violate his or her lawful duty as a public official. 18 U.S.C. 201(b)(1).
  • be a public official (former, current, or future) and directly or indirectly, "corruptly" demand, seek, receive, accept, or agree to receive or accept anything of value in exchange
    • for being influenced in the performance of any official act,
    • for being influenced to commit a fraud on the United States, or
    • for being induced to violate his or her lawful duty as a public official. Id. § 201(b)(2).
  • directly or indirectly, "corruptly" give, offer, or promise anything of value to any person, with the intent to influence testimony under oath in a trial, hearing, or other proceeding, before a court, any committee of either House of Congress, or any agency, commission, or officer authorized by United States law to hear such testimony. Id. § 201(b)(3).
  • demand, seek, receive, or accept such corrupt gifting or offers is also a federal crime. Id. § 201(b)(4).

It is a crime under section 201(c) to

  • Other than as provided by law
    • directly or indirectly give, offer, or promise anything of value to any public official, former public official, or person selected to be a public official, for or because of any official act performed or to be performed by such public official, former public official, or person selected to be a public official; or
    • be a public official, former public official, or person selected to be a public official, otherwise than as provided by law for the proper discharge of official duty, directly or indirectly demand, seek, receive, accept, or agree to receive or accept anything of value personally for or because of any official act performed or to be performed by such official or person; 18 U.S.C. § 201(c)(1)
  • directly or indirectly, give, offer, or promise anything of value to any person, for or because of the testimony under oath or affirmation given or to be given by such person as a witness upon a trial, hearing, or other proceeding, before any court, any committee of either House or both Houses of Congress, or any agency, commission, or officer authorized by the laws of the United States to hear evidence or take testimony, or for or because of such person's absence therefrom; Id. § 201(c)(2);
  • directly or indirectly, demand, seek, receive, accept, or agree to receive or accept anything of value personally for or because of the testimony under oath or affirmation given or to be given by such person as a witness upon any such trial, hearing, or other proceeding, or for or because of such person's absence therefrom; id. § 201(c)(3).

The Punishment
The punishment for a violation of 18 U.S.C. § 201(b) is

  • a fine, imprisonment for not more than fifteen years, or both.

That person may also be disqualified from holding any office of honor, trust, or profit under the United States. 18 U.S.C. § 201(b)

The Punishment for a violation of 18 U.S.C. § 201(c) is

  • a fine, imprisonment for not more than two years, or both.

It should be noted that nothing in those sections prohibit the payment or receipt of witness fees as provided by law, or the reimbursement of the reasonable cost of travel, food and lodging, preparation of testimony, and the reasonable value of time lost for being required appear and testify.

Definitions

  • A public official is: a Member of Congress; a Delegate; or a Resident Commissioner; an officer or employee or person acting for or on behalf of any department, agency or branch of Government of the United States, including the District of Columbia, in any official function; or a juror. 18 U.S.C. § 201(a)
  • An official act is any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in that official's official capacity, or in that official's place of trust or profit. 18 U.S.C. § 201(a)

Case Law Interpreting Section 201
18 USCS § 201 is to be broadly construed. Parks v United States, 355 F2d 167, 168 (5th Cir. 1965). Substantively, section 201 makes it an offense to give money or thing of value to any Government official "(1)'with intent to influence his decision or action on any question, matter, cause, or proceeding which may be pending or … brought before him in his official capacity'; (2) 'or with intent to influence him to commit … and fraud … on the United States … or to induce him to do or omit to do any act in violation of his lawful duty.'" Id. The purpose of section 201 is to reach any situation in which judgment of government agent might be clouded because of payments or gifts made to him by reason of his position other than as provided by law. United States v. Evans, 572 F.2d 455, 480-81 (5th Cir. 1978). Even if corruption is not intended by either party, there is still tendency in such situation to provide conscious or unconscious preferential treatment or it might result in inefficient management of public affairs. Id.

Offering something of value to influence official action is all that is necessary to support conviction of bribery under 18 USCS § 201. United States v Kemmel (1960, MD Pa) 188 F Supp 736, affd (1961, CA3 Pa) 295 F2d 712, cert den (1962) 368 US 988, 7 L Ed 2d 525, 82 S Ct 604. A "thing of value" is to be broadly construed with special attention paid to the subjective value that the defendant places on the items he received. United States v. Gorman, 807 F.2d 1299, 1305 (6th Cir. 1986). However, a reasonable appearance fee that a Congressman might receive for attending a banquet may not constitute a thing of value. United States v. Head, 641 F.2d 174, 180 (4th Cir. 1981).

18 USCS § 210 (2005)

The Crime
Under section 210, it a crime for a person to

  • pay or offer or promise any money or thing of value,
  • to any person, firm, or corporation
  • in consideration of the use or promise to use any influence to procure any appointive office or place under the United States for any person,

The Punishment
The punishment for a violation of section 210 is

  • a fine, imprisonment for not more than one year, or both. 18 U.S.C. § 210.

Case Law Interpreting Section 210
There is surprisingly little case law interpreting section 210. However, a United States Supreme Court case which analyzed the predecessor statute, notes the legislative history of this section was aimed at proscribing payments to political parties in return for influence. United States v. Shiry, 359 U.S. 255, 259-60 (1956).

18 USCS § 211 (2005)

The Crime
Under section 211 it is a crime for a person to

  • solicit or receive, either as a political contribution, or for personal emolument, any money or thing of value,
    • in consideration of the promise of support or use of influence in obtaining for any person any appointive office or place under the United States,
  • solicit or receive any thing of value
    • in consideration of aiding a person to obtain employment under the United States either
      • by referring his name to an executive department or agency of the United States or
      • by requiring the payment of a fee because such person has secured such employment. 18 U.S.C. § 211.

The Punishment
The punishment for a violation of section 211 is

  • a fine, imprisonment for not more than one year, or both. 18 U.S.C. § 211.

Case Law Interpreting Section 211
Most of the case law that interprets section 211 deals with its predecessor statute. When Congress enacted what is now section 211, its purpose in doing so was an attempt to outlaw all improper tampering with government employment. United States v. Jacobs, 116 F. Supp. 928, 929 (N.D. Ill. 1953). It must be noted, however, that Congress outlawed not the use of influence, merely the solicitation of its purchase. United States v. Hood, 343 U.S. 148, 150(1952). Furthermore, the statute penalizes corruption, and it is "no less corrupt to sell an office one may never be able to deliver than to sell one he can." Id. at 151.

18 USCS § 666 (2005)

The Crime
It is a violation of section 666 for a person to, under special circumstances,

  • be an agent of an organization, or of a State, local, or Indian tribal government, or any agency thereof and
    • embezzle, steal, obtains by fraud, or otherwise without authority knowingly convert to the use of any person other than the rightful owner or intentionally misapplies, property that-
      • is valued at $ 5,000 or more, and
      • is owned by, or is under the care, custody, or control of such organization, government, or agency; 18 U.S.C. § 666(a)(1)(A); or
    • corruptly solicit or demand for the benefit of any person, or accept or agree to accept, anything of value from any person, intending to be influenced or rewarded in connection with any business, transaction, or series of transactions of such organization, government, or agency involving any thing of value of $ 5,000 or more; Id. § 666(a)(1)(B); or
  • corruptly give, offer, or agree to give anything of value to any person, with intent to influence or reward an agent of an organization or of a State, local or Indian tribal government, or any agency thereof, in connection with any business, transaction, or series of transactions of such organization, government, or agency involving anything of value of $ 5,000 or more; Id. § 666(a)(2)

Special Circumstance
The circumstance referred to in subsection (a) of this section is that the organization, government, or agency receives, in any one year period, benefits in excess of $ 10,000 under a Federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance. 18 U.S.C. § 666(b).

The Punishment
The punishment for a violation of section 210 is

  • a fine, imprisonment for not more than 10 years, or both.

Definitions
As used in section 666

  • the term "agent" means a person authorized to act on behalf of another person or a government and, in the case of an organization or government, includes a servant or employee, and a partner, director, officer, manager, and representative; 18 U.S.C. § 666(d)(1).
  • the term "government agency" means a subdivision of the executive, legislative, judicial, or other branch of government, including a department, independent establishment, commission, administration, authority, board, and bureau, and a corporation or other legal entity established, and subject to control, by a government or governments for the execution of a governmental or intergovernmental program. Id. § 666(d)(2).
  • the term "local" means of or pertaining to a political subdivision within a State. Id. § 666(d)(3).
  • the term "in any one-year period" means a continuous period that commences no earlier than twelve months before the commission of the offense or that ends no later than twelve months after the commission of the offense. Such period may include time both before and after the commission of the offense. Id. § 666(d)(5).

Case Law Interpreting Section 666
The purpose of section 666(a)(2) is to "protect the integrity of the vast sums of money distributed through Federal programs from theft, fraud, and undue influence by bribery," Sabri v. United States, 541 U.S. 600, 606 (2004) (citing S. Rep. No. 98-225, (1983)). Liability for the acts prohibited by subsection (a) is predicated upon a showing that the defrauded organization received, in any one period, benefits in excess of $ 10,000 under a Federal program. Those benefits can be in the form of grants, contracts, subsidies, loans or other form of Federal assistance. Fischer v. United States, 529 U.S. 667, 676 (2000). Section 666, moreover, "does not require the Government to prove federal funds were involved in the bribery transaction." Salinas v. United States, 522 U.S. 52, 60 (1997). Furthermore, it matters not when the bribe occurred; the government does not need to prove that the bribe-taker was paid before he performed the illegal service. United States v. Griffin, 154 F.3d 762, 764 (8th Cir. 1998).

18 USCS § 1951 (2005)

The Crime
It is a violation of section 1951 for a person to in any way or degree

  • obstruct, delay, or affect commerce or the movement of any article or commodity in commerce,
    • by robbery or extortion or attempt or conspire so to do, or
  • commit or threaten physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section. 18 U.S.C. § 1951(a).

The Punishment
The punishment for a violation of section 211 is

  • a fine, imprisonment for up to 20 years, or both. 18 U.S.C. § 1951(a).

Definitions

  • the term "robbery" means the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining. 18 U.S.C. § 1951(b)(1).
  • the term "extortion" means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right. Id. § 1951(b)(2).
  • the term "commerce" means commerce within the District of Columbia, or any Territory or Possession of the United States; all commerce between any point in a State, Territory, Possession, or the District of Columbia and any point outside thereof; all commerce between points within the same State through any place outside such State; and all other commerce over which the United States has jurisdiction. Id. § 1951(b)(3).

Case Law Interpreting Section 1951
To convict a defendant under section 1951, the government must prove "two essential elements, (1) extortion or attempted extortion, and (2) that such extortion or attempted extortion affect interstate commerce." United States v. Floyd, 228 F.2d 913, 919 (7th Cir. 1956). Extortion is rather well defined by section 1951(b)(2). Only "a de minimus showing is necessary to establish the interstate nexus required for Hobbs Act jurisdiction. Indeed, 'it is the law in our circuit that if the defendants conduct produces any interference with or effect upon interstate commerce, whether slight, subtle or even potential, it is sufficient to uphold a prosecution under the Hobbs Act.'" United States v. Silverio, 335 F.3d 183, 186 (2d Cir. 2003). Furthermore, the defendant's state of mind is often irrelevant. "[I]n the absence of an actual effect on interstate commerce, a defendant's belief about the nature of his crime may be determinative. But when … ample effects on interstate commerce are demonstrated, the state of mind of the defendant is not relevant." Id. at 187.

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